27614 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

1The 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. 

2See 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). 

DEPARTMENT OF TRANSPORTATION 

14 CFR Part 382 

[Dockets OST–2004–19482; OST–2005– 

22298; OST–2006–23999] 

[RINs 2105–AC97; 2105–AC29; 2105–AD41] 

Nondiscrimination on the Basis of 

Disability in Air Travel 

AGENCY: Department of Transportation, 

Office of the Secretary. 

ACTION: Final Rule. 

SUMMARY: The Department of 

Transportation is amending its Air 

Carrier Access Act (ACAA) rules to 

apply to foreign carriers. The final rule 

also adds new provisions concerning 

passengers who use medical oxygen and 

passengers who are deaf or hard-ofhearing. The rule also reorganizes and 

updates the entire ACAA rule. The 

Department will respond to some 

matters raised in this rulemaking by 

issuing a subsequent supplemental 

notice of proposed rulemaking. 

DATES: Effective Date: This rule is 

effective May 13, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Robert C. Ashby, Deputy Assistant 

General Counsel for Regulation and 

Enforcement, Department of 

Transportation, 1200 New Jersey Ave., 

SE., Room W94–302, Washington, DC 

20590 (202) 366–9310 (voice); 202–366– 

7687 (TTY); bob.ashby@dot.gov. You 

may also contact Blane Workie, 

Aviation Civil Rights Compliance 

Branch, Office of the Assistant General 

Counsel for Aviation Enforcement and 

Proceedings, Department of 

Transportation, 1200 New Jersey Ave., 

SE., Room W98–310, Washington, DC 

20590 (202) 366–9345), 

blane.workie@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

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. 

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. 

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 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27615 

(C) May not limit compliance by an air 

carrier with obligations or liabilities imposed 

by the government of a foreign country when 

the Secretary takes any action related to a 

certificate of public convenience and 

necessity issued under chapter 411 of this 

title. 

(2) This subsection does not apply to an 

agreement between an air carrier or an officer 

or representative of an air carrier and the 

government of a foreign country, if the 

Secretary of Transportation disapproves the 

agreement because it is not in the public 

interest. Section 40106(b)(2) of this title 

applies to this subsection. 

In response to the AIR–21 

requirements, the Department on May 

18, 2000, issued a notice of its intent to 

investigate complaints against foreign 

carriers according to the amended 

provisions of the ACAA. The notice also 

announced the Department’s plan to 

initiate a rulemaking modifying Part 382 

to cover foreign carriers. On November 

4, 2004, the Department issued a notice 

of proposed rulemaking (NPRM) to 

apply the ACAA rule to foreign carriers 

(69 FR 64364). The NPRM sought to 

apply Part 382 to foreign carriers in a 

way that achieves the ACAA’s 

nondiscrimination objectives while not 

imposing undue burdens on foreign 

carriers. This NPRM also proposed 

revisions to a number of other 

provisions of 14 CFR Part 382 and 

generally reorganized the rule. The 

Department received about 1300 

comments on this NPRM. In this 

preamble to the final rule, this proposed 

rule is called the ‘‘Foreign Carriers 

NPRM’’ or the ‘‘2004 NPRM.’’

On September 7, 2005, the 

Department published a second NPRM, 

on the subject of medical oxygen and 

portable respiratory assistive devices (70 

FR 53108). The Department received 

over 1800 comments on this proposed 

rule, which is referred to in this 

preamble as the ‘‘Oxygen NPRM.’’ On 

February 23, 2006, the Department 

published a third NPRM, concerning 

accommodations for passengers who are 

deaf, hard-of-hearing, or deaf-blind. The 

Department received over 700 

comments on this proposed rule, which 

is called the deaf and hard-of-hearing 

(DHH) NPRM in this preamble. This 

document addresses the over 3800 

comments received on all three NPRMs. 

The section-by-section analysis will 

describe each provision of the combined 

final rule. 

In this preamble, when we mention 

the ‘‘present,’’ ‘‘current,’’ or ‘‘existing’’

rule, we mean the version of Part 382 

that is in effect now. It will remain in 

effect until a year from today, when it 

will be replaced by the provisions that 

are published in this final rule. 

Comments and Responses 

General Regulatory Approach 

A number of airline industry 

commenters—principally, but not only, 

foreign carriers—criticized the Foreign 

Carriers NPRM’s approach as being too 

detailed and prescriptive. Many of these 

commenters said they preferred a more 

general approach, in which an overall 

objective of nondiscrimination and 

service to persons with disabilities was 

stated, with the details of 

implementation left to the discretion of 

carrier policies, guided by codes of 

recommended practice issued by 

various governments or international 

organizations. 

It is the Department’s experience, over 

the 21 years since the enactment of the 

Air Carrier Access Act, that in order to 

ensure that carriers are accountable for 

providing nondiscriminatory service to 

passengers with disabilities, detailed 

standards and requirements are 

essential. If all that carriers are 

responsible for is carrying out, in their 

best judgment, general objectives of 

nondiscrimination and good service, or 

best practices or recommendations, or 

regulations that are not enforceable by 

the Department, then effective 

enforcement of the rights Congress 

intended to protect in the ACAA 

becomes impracticable. It is 

understandable that carriers would wish 

to implement their goals through 

policies of their own devising and to 

limit potential compliance issues. 

However, the Department is responsible 

for ensuring consistent 

nondiscriminatory treatment of 

passengers with disabilities, including 

implementation of the variety of specific 

accommodations that are essential in 

providing such treatment. We must 

structure our response to this mandate 

in a way that allows for clear and 

consistent implementation by the 

carriers, and clear and consistent 

enforcement by the Department. 

Consequently, we are convinced that the 

approach taken in the NPRM, reflecting 

the Department’s years of successful 

experience in carrying out the ACAA, is 

appropriate. 

Coverage and Definition of ‘‘Flight’’ 

The Foreign Carriers NPRM proposed 

to cover the activities of foreign carriers 

with respect to a ‘‘flight,’’ defined as a 

continuous journey, in the same aircraft 

or using the same flight number that 

begins or ends at a U.S. airport. The 

Foreign Carriers NPRM included several 

examples of what would or would not 

be considered covered ‘‘flights.’’ One of 

these examples proposed that if a 

passenger books a journey on a foreign 

carrier from New York to Cairo, with a 

change of plane or flight number in 

London, the entire flight would be 

covered for that passenger. When there 

is a change in both aircraft and flight 

number at a foreign airport, the rule 

would not apply beyond that point. 

Another example proposed that the 

rules applying to U.S. carriers would 

apply to a flight operated by a foreign 

carrier between foreign points that was 

also listed as a flight of a U.S. carrier via 

a code sharing arrangement. 

Commenters, including foreign 

carriers, generally conceded that it was 

acceptable for the rule to cover foreign 

carriers’ flights that started or ended at 

a U.S. airport. Some carriers said that it 

was burdensome for them to continue to 

observe Part 382 rules for a leg of a 

flight that did not itself touch the U.S. 

(e.g., the London-Cairo leg in the 

example mentioned above). We note 

that only service and nondiscrimination 

provisions of the rule apply in such a 

situation, not aircraft accessibility 

requirements. 

Foreign carriers’ main objection, 

however, centered on codeshare flights 

between two foreign points. They said 

that it was an inappropriate 

extraterritorial extension of U.S. 

jurisdiction to apply U.S. rules to a 

foreign carrier just because the foreign 

carrier’s flight between two foreign 

points carried passengers under a codesharing arrangement with a U.S. carrier. 

In response to these comments, the 

Department has changed the applicable 

provision of the final rule. If a foreign 

carrier operates a flight between two 

non-U.S. points and the flight carries 

the code of a U.S. carrier, the final rule 

will not extend coverage to the foreign 

carrier for that flight segment and the 

foreign carrier will not be responsible to 

the Department for compliance with 

Part 382 for that segment. Rather, with 

respect to passengers ticketed to travel 

under the U.S. carrier’s code, the 

Department regards the transportation of 

those passengers to be transportation by 

a U.S. carrier, concerning which the 

U.S. carrier is responsible for Part 382 

compliance. If there is a service-related 

violation of Part 382 on a flight between 

two non-U.S. points operated by a 

foreign carrier, affecting a passenger 

traveling under the U.S. carrier’s code, 

the violation would be attributed to the 

U.S. carrier, and any enforcement action 

taken by the Department would be 

against the U.S. carrier. We note that the 

aircraft accessibility requirements 

would not apply in such a situation. 

U.S. carriers can work with their foreign 

carrier codeshare partners to ensure that 

required services are provided to 

passengers. 


rwilkins on PROD1PC63 with RULES2
27616 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

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 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27617 

granted the waiver request, any 

enforcement action relating to the 

carrier’s actions during that interval 

would probably be dismissed. However, 

if the waiver request were denied, the 

enforcement action would proceed. S 

Airlines thus would have put itself at 

somewhat greater risk by failing to 

submit its waiver request on a timely 

basis. 

We also recognize that laws change. 

Consequently, if a new provision of 

foreign law comes into effect after the 

120-day period, a carrier may file a 

waiver request with the Department. 

The carrier may keep the policy or 

practice that is the subject of the request 

in effect pending the Department’s 

response, which we will try to provide 

within 180 days. Again, the carrier 

would not be at risk of a DOT 

enforcement action relating to the 

period during which the Department 

was considering the waiver request 

concerning the new foreign law. 

Carriers should not file frivolous 

waiver requests, the stated basis for 

which is clearly lacking in merit or 

which are filed with the apparent intent 

of delaying implementation of a 

provision of Part 382 or abusing the 

waiver process. In such cases, the 

Department may pursue enforcement 

action even if the frivolous waiver 

request has been filed within 120 days. 

As a general matter, a carrier that does 

not file a request for a waiver, or whose 

request is denied, cannot then raise the 

alleged existence of a conflict with 

foreign law as a defense to a DOT 

enforcement action. 

Many foreign carriers and their 

organizations also said that a conflict of 

laws waiver, standing alone, was 

insufficient. They said that their 

policies and approaches to assisting 

passengers with disabilities, or laws or 

policies relating to disability access of 

foreign carriers’ countries (either singlecountry laws or those of, for example, 

the European Union) should be 

recognized as equivalent to DOT’s rules. 

Compliance with equivalent foreign 

laws and carrier policies, they said, 

should be sufficient to comply with Part 

382. 

U.S. disability law includes a 

concept—equivalent facilitation—that 

can address these comments to a 

reasonable degree. This concept, which 

is embodied in such sources as the 

Department’s Americans with 

Disabilities Act (ADA) regulations and 

the Americans with Disabilities Act 

Accessibility Guidelines (ADAAG), 

states that a transportation or other 

service provider can use a different 

accommodation in place of one required 

by regulation if the different 

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 


rwilkins on PROD1PC63 with RULES2
27618 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

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 policyoriented in nature, asking for 

consultation through ICAO or other 

channels prior to publication of a rule 

which, while carefully limited to 

matters affecting service to and from the 

U.S., had implications for the 

international aviation system. 

Comments asked for greater focus on 

international harmonization. In fact, the 

Department consulted extensively with 

other interested parties. The volume and 

detail of comments from foreign carriers 

and organizations testify to the 

extensive opportunity non-U.S. parties 

have had to participate in this 

rulemaking. This final rule reflects the 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27619 

Department’s consideration of this 

participation (and we note that 

participation between the time of the 

Foreign Carriers NPRM and the final 

rule is just as valid as participation 

before issuance of the Foreign Carriers 

NPRM). DOT officials also met and had 

phone conferences with organizations 

representing European and Asian 

governments and/or carriers. It would 

be unreasonable to contend that this 

extensive participation somehow does 

not count. 

The Department is willing to continue 

discussions with foreign carriers and 

international organizations with respect 

to harmonization of U.S. and other 

standards in the area of transportation of 

passengers with disabilities. Meantime, 

the Department has a responsibility to 

carry out its statutory mandate to apply 

the ACAA to foreign carriers, and we 

cannot make working with other parties 

on harmonization matters a condition 

precedent to carrying out what Congress 

has mandated. 

Some comments alluded to the 

regulatory negotiation process that 

preceded the issuance of the original 

ACAA NPRM, complaining that there 

was not a similar process prior to the 

issuance of the November 2004 NPRM. 

Regulatory negotiation, is, of course, a 

wholly voluntary process on the 

Department’s part. There can be no 

implication that, because the 

Department chose to use such a process 

in the 1980s, the Department was in any 

sense required to do so again for this 

rulemaking. Nor is there any such 

requirement in the statutory amendment 

applying the ACAA to foreign carriers. 

It is worth noting, in any event, that the 

original ACAA NPRM was not the 

product of consensus resulting from the 

regulatory negotiation. That negotiation 

terminated short of consensus, because 

of intractable disagreements on some 

issues between carriers and disability 

groups. The original NPRM, like the 

2004 NPRM, was wholly the 

Department’s proposal. The variety of 

disagreements among commenters 

concerning the November 2004 NPRM 

suggests, in retrospect, that the 

likelihood of achieving consensus on 

the application of the ACAA to foreign 

carriers in a manner consistent with the 

Department’s obligations under the 

ACAA would have been very low. 

Moreover, in the years since the original 

ACAA regulatory negotiation, disability 

groups have expressed some skepticism 

about the utility of the regulatory 

negotiation process for 

nondiscrimination rules of this kind, 

making it questionable whether they 

would have chosen to participate in 

such a venture. 

Accessibility of Airport Terminals and 

Facilities 

The Foreign Carriers NPRM (sec. 

382.51) proposed that both U.S. and 

foreign carriers, at both U.S. and foreign 

airports, would be responsible for 

ensuring the accessibility of terminal 

facilities they own, lease, or control. 

The responsibility of foreign carriers at 

foreign airports would extend only to 

facilities involved with flights to or from 

the U.S. U.S. airports must meet 

applicable accessibility requirements 

(e.g., the ADAAG) under the ADA and 

section 504. The Foreign Carriers NPRM 

proposed a performance standard for 

foreign airports, since U.S. accessibility 

standards do not apply there. This 

performance standard would require 

carriers to ensure that passengers with 

disabilities could readily move through 

terminal facilities to get to or from 

boarding areas. Carriers could meet this 

performance standard by a variety of 

means. A related provision (sec. 382.91) 

proposed that, at both U.S. and foreign 

airports, both U.S. and foreign carriers 

would have to provide assistance to 

passengers with disabilities in moving 

through the terminal and making 

connections between gates. 

Some comments appear to have 

misunderstood the Foreign Carriers 

NPRM to propose that DOT wished U.S. 

accessibility standards, like the 

ADAAG, to apply to foreign airports. 

The Foreign Carriers NPRM did not 

make such a proposal. Those comments 

aside, the most frequent comment made 

by foreign carriers and their 

organizations on this subject was that 

the Foreign Carriers NPRM’s proposals 

for airport facility accessibility did not 

sufficiently take into account the fact 

that foreign governments or airport 

operators, not airlines, controlled 

matters relating to accessibility at many 

foreign airports. For example, it was 

pointed out that under recent European 

Union regulations, airport operators are 

given most of the responsibility for 

accommodating passengers with 

disabilities in airports. 

The Department recognizes that this 

may often be the case, and the final rule 

should not be understood to require 

carriers to duplicate the 

accommodations made by airport 

operators at foreign airports. Where 

foreign airport operators provide 

accessibility services or accessible 

facilities, foreign carriers may rely on 

the airport operators’ efforts, to the 

extent that those efforts fully meet the 

requirements of this Part. What 

happens, though, if the foreign airport 

operators’ efforts do not fully provide 

the accessibility that this rule requires 

(e.g., the airport operator is responsible 

for providing wheelchair assistance to 

passengers within the terminal, but does 

not provide connecting service between 

gates for wheelchair users who are 

changing planes on flights covered by 

the rule)? In such a case, this rule 

requires air carriers to supplement the 

services provided by the airport 

operator, by providing the supplemental 

services itself or hiring a contractor to 

do so. If the carrier cannot legally do so 

(e.g., the airline is legally prohibited 

from supplementing the airport’s 

services to passengers with disabilities), 

the carrier could seek a conflict of laws 

waiver. 

The Foreign Carriers NPRM asked 

whether the final rule should require 

automated kiosks operated by carriers in 

airports or other locations (e.g., for 

ticketing and dispensing of boarding 

passes) to be accessible, and, if so, what 

accessibility standards should apply to 

them. Disability community 

commenters generally expressed 

support for this proposal; carriers and 

their organizations generally expressed 

concern about the cost and technical 

feasibility of accessible kiosks. The 

Department believes that all services 

available to the general public should be 

accessible to people with disabilities. 

Nevertheless, the comments concerning 

kiosks were not sufficient to answer our 

questions about cost and technical 

issues. Consequently, the Department 

plans to seek further comment about 

kiosks in a forthcoming supplemental 

notice of proposed rulemaking 

(SNPRM). The preamble to the SNPRM 

will discuss this issue in more detail. 

On this subject, the Department intends 

to coordinate with the Access Board, 

which also has work under way that 

could affect kiosks. 

As an interim measure, the final rule 

will require a carrier whose kiosks are 

not accessible to provide equivalent 

service to passengers with disabilities 

who cannot use the kiosks. For example, 

suppose a passenger with a disability 

having only carry-on luggage wants to 

use a kiosk to get a boarding pass 

without standing in line with 

passengers checking baggage. If, because 

the kiosk is not accessible, the passenger 

cannot use it, the carrier would have to 

provide equivalent service, such as by 

having carrier personnel operate the 

kiosk for the passenger or allowing the 

passenger to use the first class boarding 

pass line. 

We recognize that some disability 

community commenters have expressed 

concern about the latter approach, 

thinking that it might call undue 

attention to the individuals receiving 

the accommodation. We agree that 


rwilkins on PROD1PC63 with RULES2
27620 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

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 carryon and gate-checked luggage. It also 

proposed requiring carriers to make a 

general announcement in the gate area 

offering preboarding to passengers with 

disabilities. 

Some carriers said that while they 

would voluntarily provide assistance to 

passengers with disabilities in moving 

through the terminal when practical and 

feasible, they opposed a regulatory 

requirement to provide this assistance. 

The Department does not believe that, 

under the ACAA, it is appropriate to tell 

passengers that they must learn to rely 

on the kindness of strangers. One of the 

purposes of Part 382 always has been, 

and remains, to create legally 

enforceable expectations upon which 

passengers with disabilities can 

consistently depend. Reliance on purely 

voluntary action by carriers does not 

achieve this objective. 

One of the issues discussed most 

often in comments concerned the 

proposed requirement that enplaning, 

deplaning, and connecting assistance be 

provided promptly. Many commenters, 

particularly people with disabilities and 

organizations representing them, 

thought that the rule should specify 

maximum times for assistance—5, 10, or 

15 minutes—rather than having a more 

general requirement for promptness. 

Some disability community comments 

also said that the rule should prohibit 

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 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27621 

might consider using more widely. 

Nevertheless, being able to receive 

assistance in moving through the airport 

is so fundamental to access to the air 

travel system that the Department does 

not believe that allowing carriers to 

require—as distinct from 

recommending—advance notice would 

be consistent with the 

nondiscrimination objectives of the 

ACAA. Passengers with disabilities, like 

other passengers, sometimes must travel 

on short notice for business or personal 

reasons, and it would not be consistent 

with the ACAA to limit their access to 

needed assistance in moving through 

the terminal. 

Carrier comments also mentioned, in 

this context, the relationship between 

carriers and many foreign airports, 

where airports often have the major 

responsibility for providing assistance 

in the terminal. As noted elsewhere in 

the preamble, carriers can rely on 

airports’ efforts with respect to 

assistance in the terminal, 

supplementing the assistance that 

airports provide as necessary to meet 

fully the requirements of Part 382. If 

carriers are precluded by law from 

supplementing the airport-provided 

assistance, carriers can request a conflict 

of laws waiver. 

The Foreign Carriers NPRM, like the 

existing rule, assigns responsibility for 

connecting assistance to the carrier on 

which the passenger arrives. One 

foreign carrier mentioned that, per 

agreements with other carriers in at least 

some airports, its arriving passengers 

would be assisted to a connecting 

carrier’s gate by personnel of the 

connecting carrier. As noted elsewhere, 

the Department does not object to 

contractual agreements between carriers 

that would delegate the connecting 

assistance function to the connecting 

carrier. However, under the rule, the 

arriving carrier would retain 

responsibility for ensuring that the 

function was properly carried out. 

Many carriers objected to having to 

allow passengers they are assisting to 

stop at a restroom or food service 

location, saying that this would delay 

service and increase personnel costs. 

Passenger comments, to the contrary, 

suggested that it was unfair for 

assistance personnel to insist on 

wheeling a passenger who needed to go 

to the bathroom or who was hungry past 

a conveniently located restroom or food 

concession, at which ambulatory 

passengers could stop at their 

discretion. Their comments pointed out 

that eating and relieving oneself are 

basic life activities that people must do 

from time to time. This issue has 

become increasingly significant in 

recent years due to the need for early 

arrival at the airport for security 

screening and cutbacks in airline meal 

service. 

The final rule is structured to 

accommodate both sets of concerns. If 

an airline or contractor employee is 

assisting a passenger from, for example, 

the ticket counter to the gate, and they 

come to a restroom or food service 

location on the route they are taking, the 

employee is required to allow the 

passenger a brief stop, if the passenger 

self-identifies as a person with a 

disability needing this service. The 

employee is not required to detour to a 

different route, provide personal care 

attendant services to the passenger, or 

incur an unreasonable delay. A delay 

which would result in the passenger not 

getting to a connecting flight would 

obviously be unreasonable. With respect 

to food service locations, the kind of 

brief stop the Department envisions is 

one sufficient to pick up a prepared 

carry-out item or fast-food sandwich, as 

distinct from eating at a sit-down 

restaurant. Even in the case of a carryout or fast-food location, a long line 

might create an unreasonable delay. 

The Foreign Carriers NPRM proposed 

that persons with disabilities who need 

assistance in boarding be provided an 

opportunity to preboard. It also 

proposed requiring a general 

preboarding announcement to this effect 

in the gate area. Disability community 

comments generally supported the 

proposed requirements. Carrier 

comments did not object to the 

proposed requirement to provide an 

opportunity for persons with disabilities 

to preboard, though some carriers did 

object to making the general 

announcement of the opportunity in the 

gate area, mostly out of concern that too 

many ineligible people would try to 

preboard, thereby slowing the boarding 

process. The Department believes that 

preboarding is an important way in 

which carriers can facilitate 

transportation by passengers with 

disabilities. Indeed, some portions of 

Part 382 (e.g., with respect to on-board 

stowage of accessibility equipment) are 

premised on the availability of 

preboarding. The final rule will include 

this requirement. However, we will not 

make final the proposed provision 

requiring a general announcement of 

this opportunity in the boarding area. 

Some carriers make such an 

announcement as a matter of policy. 

Even where this is not the case, carrier 

personnel are generally responsive to 

requests from passengers with 

disabilities to preboard and often scan 

the boarding area to determine if there 

are passengers for whom preboarding 

would be appropriate. Passengers who 

want to ensure that they can preboard 

should ask gate personnel for the 

opportunity. It is reasonable to expect 

passengers to take this step. 

The Foreign Carriers NPRM proposed 

that carriers, in the course of providing 

assistance to passengers with a 

disability in moving through the 

terminal, would assist them in 

transporting carry-on and gate-checked 

baggage. A number of carrier comments 

opposed this proposal, saying that it 

would impose staffing and cost burdens 

on them. If a passenger wanted to have 

someone carry his or her bags, at least 

one comment suggested, the passenger 

should hire porter service. Other 

commenters said that such service 

should be limited to wheelchair users or 

persons with severe hearing or vision 

impairments. 

The Department notes that, in many 

cases, passengers with disabilities do 

not need extensive extra assistance in 

dealing with carry-on items. It is 

commonplace for wheelchair users to 

carry their briefcases or purses on their 

laps when being assisted through the 

terminal, for example. Proper-size carryon and gate-checked items are, by 

definition, limited in size, and they are 

not the kind of items that passengers in 

general need to use a skycap and a cart 

to move through the airport. It would 

not be appropriate, in the context of a 

nondiscrimination rule, to effectively 

require passengers with disabilities to 

hire such service. We agree with 

commenters, however, that passengers 

who can carry their own items should 

do so, and we have added language 

saying that this service need be 

provided only to those passengers who 

cannot do so because of their disability. 

Carrier or contractor personnel can 

request credible verbal assurances from 

a passenger that he or she cannot 

transport the item in question or, in the 

absence of such credible assurances, 

require documentation as a condition of 

providing the service. 

Number Limits 

A number of foreign carriers 

commented that being able to limit the 

number of passengers with disabilities 

on board a given flight was important 

for safety, particularly in the context of 

an emergency evacuation. In some 

cases, carriers mentioned that laws or 

regulations of their governments either 

permitted or required them to impose 

limits on the numbers of either 

passengers with disabilities or assistive 

devices in the cabin. 

A number limit permits a carrier to 

say to a passenger, in effect ‘‘As a 

person with a disability, we will deny 


rwilkins on PROD1PC63 with RULES2
27622 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

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 selfassessment could lead to abuse by 

clever passengers trying to get free 

flights for someone. Some of these 

comments suggested providing 

discounted, rather than free, 

transportation for the attendant in these 

situations. 

Disability community commenters 

generally supported the Foreign Carriers 

NPRM proposals, and a number of 

comments were particularly supportive 

of the change to the ‘‘safety assistant’’

term, believing that it helped to clarify 

the meaning of the provision. Some 

comments from people with disabilities, 

however, objected to the provision to 

the extent that it would ever permit 

carriers to insist on an attendant over 

the passenger’s objections. These 

commenters did not trust the carriers’

judgments about passengers’ capabilities 

and were concerned that carriers would 

impose attendant requirements 

arbitrarily, increasing the costs and 

difficulty of flying for passengers with 

disabilities. 

The limits on carrier requirements for 

attendants were a significant issue in 

the original ACAA rulemaking, and the 

Department’s discussion of that issue in 

the preamble to the 1990 ACAA rule 

remains relevant (see 55 FR 8029–8032; 

March 6, 1990). Passengers with 

disabilities, for the most part, are the 

best judges of their capabilities, and 

providing broad discretion to carriers to 

override that judgment does carry with 

it a significant risk of arbitrary burdens 

being placed on passengers. On the 

other hand, carriers have ultimate 

responsibility for the safety of 

passengers, and we believe that the 

balance struck in the original ACAA 

rule is a sensible one. Passengers have 

the primary responsibility for making 

the determination if they can travel 

independently, but carriers can overrule 

that determination, in a carefully 

limited set of circumstances, and 

require a safety assistant. If it is really 

an overriding safety reason that compels 

a carrier to overrule a passenger’s 

decision and insist that he or she travel 

with a safety assistant, then it is 

appropriate for the carrier to bear the 

cost of the safety judgment that it 

makes. In the 17 years that the 

Department has implemented this 

provision under the existing ACAA rule, 

this requirement has not resulted, to the 

best of our knowledge, either in safety 

problems or frequent or significant 

abuse by passengers. 

Even on long flights, passengers with 

disabilities, under a nondiscrimination 

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 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27623 

briefings required by foreign 

government regulations, as well as those 

of the FAA. 

Consistent with the approach taken in 

the current rule and the Foreign Carriers 

NPRM, we proposed in the DHH NPRM 

to allow carriers to require any 

passenger who has severe hearing and 

vision impairment or is deaf-blind to 

travel with a safety assistant if 

communication adequate for 

transmission of the required safety 

briefing cannot be established. (We use 

the term ‘‘severe hearing and vision 

impairment’’ to include the entire 

spectrum of this disability, including 

the extreme of ‘‘deaf-blind,’’ unless we 

expressly indicate otherwise.) We 

proposed to require both the carrier’s 

personnel and the disabled passenger to 

make reasonable attempts to establish 

adequate communication, beginning 

with self-identification on the 

passenger’s part. We further proposed 

that if the carrier disagrees with the 

passenger’s assessment that he or she is 

capable of traveling independently, the 

carrier must transport the safety 

assistant free of charge and must also 

make reasonable efforts to locate such 

an assistant. We solicited comments on 

the proposed joint responsibility, on 

what might qualify as reasonable 

attempts to communicate, on whether 

our proposal is specific enough for all 

parties concerned to understand their 

responsibilities, and on whether a 

different standard might be more 

appropriate. We also solicited 

comments on the costs of compliance. 

The carriers and carrier associations 

that filed comments all supported the 

proposed requirement that passengers 

with severe hearing and vision 

impairment self-identify. Most opposed 

being required to find a voluntary safety 

assistant if they disagree with the 

disabled passenger’s self-assessment of 

being able to travel without one, and all 

opposed being required to transport the 

safety assistant without charge. They 

contend that not only would the 

requirement to transport the safety 

assistant without charge create 

incentives for fraudulent assertions of 

independence, but using voluntary 

safety assistants would raise serious 

insurance and liability issues, and 

requiring free transportation would 

saddle them with undue costs. Most 

sought clarification of carriers’

responsibility for making reasonable 

efforts to establish communication with 

passengers whose hearing and vision are 

severely impaired. For flights of twelve 

hours or more, some carriers said, 

inexperienced passengers may not be 

aware of what needs may arise for them 

during their flight. 

Of the disability organizations that 

filed comments, one supported joint 

responsibility for reasonable efforts to 

establish communication to determine 

the need for a safety assistant. Others 

maintained that the rule should ensure 

that persons with severe hearing and 

vision impairment are not denied travel 

because a carrier’s employees lack 

adequate training in or knowledge of 

basic communication techniques. 

In response to the comments we 

received, we are modifying the 

proposed rule in some respects. In so 

doing, we are maintaining the basic 

principle that has worked effectively in 

the domestic airline industry since the 

original 1990 rule: if a passenger is able 

to establish adequate communication 

with the carrier for purposes of 

receiving the safety briefing, and the 

carrier nonetheless decides to overrule 

the passenger’s assessment that he or 

she can travel independently, the carrier 

cannot charge for the transportation of 

the safety assistant that the carrier 

requires. 

To allow the carrier an opportunity to 

confirm that the passenger had such a 

means of communication available, the 

final rule provides that the carrier can 

require the passenger to self-identify 48 

hours before the flight. As part of this 

notification, the passenger would 

explain to the carrier how 

communication can be established (e.g., 

via tactile speech-reading by touching 

the speaker’s lips, cheek and throat). If 

the passenger does not notify the carrier 

48 hours before the flight, the rule 

nonetheless requires the carrier to 

accommodate the passenger as far as is 

practicable. 

For example, if a passenger with 

severe hearing and vision impairments 

does not notify the carrier 48 hours 

before the flight of his or her intent to 

travel alone and of his or her ability to 

communicate adequately for 

transmission of the safety briefing, the 

carrier could refuse to transport the 

passenger without a safety assistant. If, 

however, the same passenger does not 

provide advance notice but is taking a 

nonstop flight, brings an interpreter to 

the airport, and is able to establish 

communication (in the gate area) 

adequate for the transmission of the 

safety briefing and to receive instruction 

during an emergency evacuation, the 

carrier must allow the passenger to 

travel without a safety assistant. 

The FAA requires that the safety 

briefing be provided before each takeoff, 

so communication to permit 

transmission of this briefing must be 

established for each flight segment of 

the passenger’s itinerary. Passengers can 

use a variety of means to establish the 

needed communication. A passenger 

could, for example, bring a companion 

to the airport to serve as a go-between 

with carrier personnel there. That 

individual can interpret for the 

passenger during the safety briefing and 

can help the passenger agree with 

carrier personnel on physical signals—

touching the passenger’s hand in a 

specific manner, for example—for use 

during evacuation or other emergencies. 

Another means by which the passenger 

may establish communication is to give 

carrier personnel an instruction sheet 

for communicating with him or her. 

While we are not requiring carriers to 

make safety briefing information 

available on Braille cards, they are free 

to do so. The carrier may not require the 

passenger to demonstrate his or her 

ability to communicate or that he or she 

has understood the safety briefing. For 

example, there could not be a quiz on 

the contents of the safety briefing or a 

demonstration of lip reading or finger 

spelling ability. 

In the case of codeshare flights, the 

carrier whose code is used must inform 

the operating carrier that a passenger 

with severe hearing and vision 

impairment has provided notice 48 

hours in advance of his or her intent to 

travel without a safety assistant. If there 

is sufficient time before the 48-hour 

deadline for the passenger to directly 

contact the operating carrier, the carrier 

whose code is being used could, as an 

alternative, provide the passenger a 

number where he or she could contact 

the operating carrier to impart this 

information. 

Consistent with the treatment of this 

issue in the rest of the rule, in cases 

where carriers disagree with a 

passenger’s self-assessment that he or 

she can travel alone, we will continue 

to require that they transport the safety 

assistant without charge. Of course, any 

carrier that wishes to accommodate a 

passenger with severely impaired vision 

and hearing by designating a safety 

assistant from among, say, non-revenue 

passengers, its airport personnel, 

ticketed passengers on the same flight 

who volunteer to serve in that capacity, 

or a person accompanying the disabled 

passenger to the airport is free to do so. 

This requirement of free 

transportation for the safety assistant 

also applies in cases when the disabled 

passenger who believes that he or she 

does not need a safety assistant 

proposes to establish communication by 

means of tactile signing or finger 

spelling, but no member of the carrier’s 

flight crew can communicate using 

these methods. Carriers may decide as a 

practical matter that providing free 

transportation for a safety assistant in 


rwilkins on PROD1PC63 with RULES2
27624 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

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 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27625 

call on U.S. and foreign carriers to 

ensure that movable aisle armrests were 

proportionately provided in all classes 

of service. The information provided by 

carriers about the location of movable 

aisle armrests would have to be 

specified by row and seat number. 

A number of carriers and aircraft 

manufacturers commented that the 

proposed deletion of the feasibility 

exception and the requirement to have 

movable aisle armrests in each class of 

service were problematic. They said that 

some seats and seat console designs for 

first and business class seats in fact did 

make movable armrests infeasible or too 

costly. Moreover, they said, the wider 

seat pitches in first and business class 

cabins often permitted horizontal 

transfers of passengers from boarding 

chairs to aircraft seats, making movable 

armrests unnecessary in these cases. 

The Department agrees that, if in a 

given aircraft, seats and seat pitches are 

configured so as to permit a horizontal 

transfer of a passenger from a boarding 

wheelchair to the aircraft seat (i.e., a 

transfer that can be accomplished 

without lifting the passenger over the 

aisle armrest), it would not be necessary 

to have a movable aisle armrest at that 

location. Consequently, if a carrier can 

show, through an equivalent alternative 

request, that such transfers are feasible 

with a given cabin configuration, the 

Department would grant the request for 

the carrier’s aircraft using that 

configuration. The underlying rule, 

however, will be adopted as proposed, 

because without a means of making a 

horizontal transfer into aircraft seats, 

passengers who board using boarding 

wheelchairs will have to use the less 

comfortable, safe, and dignified method 

of being lifted over the armrest. Carriers 

that are unable to demonstrate an 

equivalent alternative would have to 

provide movable aisle armrests even in 

first and business class. 

Some commenters also said that 

putting seats with movable armrests into 

existing aircraft should be required only 

when newly designed or developed 

types of seats are installed, as distinct 

from newly manufactured seats of the 

same type that formerly occupied the 

space. Consistent with other provisions 

of the ACAA, ADA, and section 504, 

when a feature of a vehicle or facility is 

replaced, it must be replaced with an 

accessible item. (We note that, 

according to information referred to in 

the regulatory evaluation, movable aisle 

armrests are now standard features of at 

least some seat manufacturers’

products.) This obligation is not limited 

to new models of a feature placed into 

a space where older models formerly 

were used. Indeed, adopting the 

commenters’ suggestion would create a 

means for carriers to avoid providing 

movable aisle armrests on existing 

aircraft when newly manufactured 

armrests are installed, since carriers 

could simply order older seat models 

whenever they replaced the seats. When 

carriers remove any of the old seats on 

existing aircraft and replace them with 

newly manufactured seats, half of the 

replacement aisle seats must have 

movable armrests. 

Disability community commenters 

generally favored the Foreign Carriers 

NPRM proposal, but suggested some 

modifications. Some comments said that 

emergency exit rows should be made 

part of the base from which the 50 

percent calculation should be made. 

The Department believes, however, that 

the existing formula, which excludes 

those rows from the calculation, will 

result in sufficient rows being equipped 

with movable aisle armrests. Other 

comments suggested requiring some 

rows (presumably, in economy as well 

as business or first-class sections) to 

have wider seat pitches, the better to 

accommodate service animals or 

assistive devices, or to remove some 

rows entirely and provide securement 

devices so that passengers could sit in 

their own wheelchairs. The Department 

regards these suggestions as impractical 

and potentially too costly to airlines, as 

they would reduce seating capacity on 

the aircraft. The latter suggestion, in 

addition, would be inconsistent with 

FAA safety rules concerning passenger 

seats on aircraft, since aircraft seats 

must be certified to withstand specified 

g-forces. 

One comment suggested requiring 

that in new aircraft or those subject to 

a cabin refit, the bulkhead row always 

have a movable aisle armrest. While we 

do not believe it is necessary to be this 

specific in the regulatory text, we 

believe that this is a good idea that 

carriers and manufacturers should 

consider, except when a bulkhead row 

is unavailable to passengers with 

disabilities because of FAA safety rules 

(e.g., a bulkhead row that is also an exit 

row). Bulkhead rows are often used by 

people with disabilities (see the seating 

accommodations section of this Part). 

2. Accessible Lavatories 

The Foreign Carriers NPRM proposed 

to retain the existing requirement that 

cabins of aircraft with more than one 

aisle (e.g., a twin-aisle aircraft like a 

747) have an accessible lavatory. As 

under the existing rule, this requirement 

would apply to new aircraft (i.e., aircraft 

ordered/delivered after the effective 

date of the rule). If a carrier replaced an 

inaccessible lavatory on an existing 

twin-aisle aircraft, it would have to do 

so with an accessible lavatory. The 

Foreign Carriers NPRM also proposed to 

clarify that if a carrier replaced a 

component of an existing, inaccessible 

lavatory on a twin-aisle aircraft (e.g., a 

sink) without replacing the entire 

lavatory, the new component would 

have to be accessible. 

Many disability community 

commenters believed the existing and 

proposed requirements concerning 

accessible lavatories were inadequate. 

They said that accessible lavatories 

should be required in all aircraft, 

including the much more common 

single-aisle aircraft. The absence of 

accessible lavatories makes travel 

uncomfortable and difficult for 

passengers with disabilities, they said. 

Airline industry commenters, on the 

other hand, said that adding a 

requirement for accessible lavatories on 

single-aisle aircraft would be overly 

costly and burdensome. 

Particularly given that single-aisle 

aircraft often make lengthy flights (e.g., 

across North America, some transoceanic flights), it is clear that providing 

accessible lavatories on single-aisle 

aircraft would be a significant 

improvement in airline service for 

passengers with disabilities. One of the 

organizations that commented on the 

Foreign Carriers NPRM is in the process 

of working with carriers and 

manufacturers to develop an accessible 

lavatory design for single-aisle aircraft 

that would minimize seat loss. At the 

present time, however, the Department 

is concerned that the revenue loss and 

other cost impacts of requiring 

accessible lavatories on single-aisle 

aircraft could be too great. 

Consequently, we are not imposing such 

a requirement at this time. Providing 

accessible lavatories on single-aisle 

aircraft remains a matter of interest to 

the Department, and we will look 

carefully at ongoing developments in 

this area to determine if future 

rulemaking proposals may be 

warranted. 

Some comments objected to the 

proposed requirement to use accessible 

components (e.g., a sink) when 

replacing a component of a lavatory on 

a twin-aisle aircraft. Cost concerns 

aside, the main point of these comments 

was that lavatories typically are sold 

and installed as a unit, and that it is 

unusual to replace a single component 

of a lavatory. Even when this happens, 

because the lavatory is an integrated 

unit, only a given component that is 

dimensionally consistent with its 

original design is likely to fit. The 

Department believes that this comment 


rwilkins on PROD1PC63 with RULES2
27626 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

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 ‘‘seatVerDate Aug<31>2005 16:54 May 12, 2008 Jkt 214001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2

rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27627 

strapping’’ method of carrying 

wheelchairs in cabins. This involves 

strapping down a wheelchair across a 

row of seats in an aircraft that does not 

have the required space for stowing a 

folding wheelchair in the cabin. While 

nowhere mentioned or authorized in the 

current Part 382, this practice has been 

permitted by DOT enforcement policy 

in some cases. Some comments 

supported allowing this approach as an 

alternative to providing a stowage space 

in the cabin. The Department does not 

believe that this is an appropriate 

alternative to endorse in the rule, 

because it is a more awkward way of 

carrying a wheelchair and because it 

can, on a given flight, reduce seating 

capacity for other passengers. This is a 

more important consideration than ever, 

given frequently high load factors on 

many flights. However, because DOT 

practice has allowed this measure in the 

past, we do not believe it is fair to ban 

the practice altogether. Consequently, 

seat-strapping will not be permitted as 

an alternative to designated stowage 

spaces on new aircraft ordered by or 

delivered to carriers after two years from 

the rule’s effective date. The 

Department’s policy will not change 

with respect to existing aircraft. 

4. On-Board Wheelchairs 

The existing rule requires that, on 

aircraft with more than 60 seats, the 

carrier must provide an on-board 

wheelchair in any case if the aircraft has 

an accessible lavatory, and on a 

passenger’s advance request even if the 

aircraft does not have an accessible 

lavatory. The rationale for the latter 

requirement is that some passengers 

with limited mobility may be able to use 

an inaccessible lavatory on their own 

but may need to be assisted down the 

aisle to the lavatory in an on-board 

wheelchair. The Foreign Carriers NPRM 

proposed that this requirement apply on 

aircraft with 50 or more seats, as distinct 

from the criterion of more than 60 seats 

in the existing regulation. The reason for 

this proposal was that 50-seat regional 

jets are becoming an increasingly 

important component of the fleets of 

many carriers, and the accommodation 

provided by this section should be made 

available to passengers who use those 

aircraft. 

Carriers and their associations 

objected to the application of the 

provision to 50-seat aircraft. Carriers 

cited cost as one reason for their 

position. In addition, they said, 50-seat 

aircraft typically have only one flight 

attendant on board. If that attendant is 

assisting a passenger using an on-board 

wheelchair, he or she will be unable to 

carry out other duties. This could create 

difficulties if an emergency occurred 

while the flight attendant was assisting 

a user of an on-board wheelchair, which 

might also obstruct the aisle in an 

emergency situation. In addition, 

carriers questioned whether the interior 

of a 50-seat regional jet could be 

configured to provide storage space for 

the on-board wheelchair when it was 

not in use. 

While the cost estimates of 

commenters for on-board wheelchairs 

appear to be overstated, we believe that 

the operational concerns of carriers with 

respect to the use of on-board 

wheelchairs on 50-seat aircraft with one 

flight attendant have merit. In addition, 

the typically very confined spaces in 

lavatory units on these aircraft make 

their use by persons with limited 

mobility problematic. Consequently, the 

final rule will retain the existing rule’s 

provision applying on-board wheelchair 

requirements to aircraft with more than 

60 seats. 

Stowage of Wheelchairs and Mobility 

Aids 

The current rule requires wheelchairs 

that cannot be carried in the cabin to be 

checked, carried as baggage, and 

returned to users as closely as possible 

to the door of the aircraft. These devices 

have priority over other items in the 

baggage compartment. Carriers must 

accept battery-powered wheelchairs 

(and other battery-powered mobility 

aids) in baggage, subject to applicable 

hazardous materials rules. Wheelchairs 

powered by lithium batteries may not be 

permitted under the hazardous 

materials rules depending on the 

lithium content of the battery. 

Generally, non-spillable batteries do not 

need to be removed from wheelchairs 

and separately packaged, if the batteries 

are securely attached to the wheelchair 

and the batteries or their housing, if any, 

are clearly marked as being nonspillable. Wet cell batteries which are 

not non-spillable may require removal 

from the wheelchair if the wheelchair 

cannot be loaded and stowed in an 

upright condition and secured against 

movement in the cargo compartment. 

Carriers may establish a one-hour 

advance check-in time to process 

battery-powered wheelchairs. 

Wheelchair users may provide written 

instructions concerning assembly and 

disassembly of their devices. On 

domestic flights, U.S. carriers must fully 

compensate passengers for loss of or 

damage to wheelchairs, without regard 

to rules limiting liability for lost or 

damaged baggage. 

The Foreign Carriers NPRM 

essentially proposed to continue these 

provisions and apply them to foreign as 

well as U.S. carriers. Commenters made 

a number of points in response. One 

commenter asserted that the 

requirement to carry power wheelchairs 

in the baggage compartment was 

inconsistent with ICAO technical 

standards and IATA dangerous goods 

rules. While virtually identical in many 

respects, the DOT and ICAO/IATA 

standards differ, the commenter said, 

because the latter gives carriers 

discretion to refuse to carry such 

mobility aids while the former does not. 

The Department, according to the 

commenter, cannot impose a lesser 

requirement than the international 

standard. In the Department’s view, 

there is no conflict. As cited by the 

commenter, the ICAO/IATA standard 

gives carriers the discretion to carry 

battery-powered wheelchairs. The DOT 

requirement tells carriers to exercise the 

discretion permitted them by the ICAO/ 

IATA standard by, in fact, carrying the 

wheelchairs. The DOT rule does not 

require anything that the ICAO/IATA 

rule does not allow. It would not be 

accurate to call the Department’s 

requirement a ‘‘lesser’’ standard than 

that of ICAO/IATA. Indeed, it is more 

properly regarded as a higher standard, 

since it ensures service to passengers 

with disabilities that the ICAO/IATA 

materials leave to carrier discretion. 

On October 5, 2007, the Department’s 

Pipeline and Hazardous Materials 

Administration (PHMSA) issued a 

special permit in response to an IATA 

request. The permit, which granted an 

exemption from portions of the 

Department’s hazardous materials rules 

concerning battery-powered mobility 

aids, was revised in response to ATA’s 

request on October 30, 2007. Under the 

special permit, the current term of 

which expires January 31, 2009, a nonspillable battery that is completely 

enclosed and protected from short 

circuits in a rigid case integral to the 

mobility aid would not have to be 

disconnected and its terminals further 

protected from short circuits to be 

carried on an aircraft. This special 

permit should make handling of some 

battery-powered wheelchairs easier for 

carriers to which the permit applies. It 

is PHMSA’s intention to issue a 

rulemaking in the future that will 

extend the provisions of this exemption 

to all carriers. Due to the many 

instances of wheelchair damage 

resulting from disconnecting battery 

cables, the Department will require 

carriers not to disconnect the cables on 

non-spillable batteries unless a PHMSA 

or FAA safety regulation, or the safety 

regulation of a foreign government, 

requires them to do so. 


rwilkins on PROD1PC63 with RULES2
27628 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

Carriers and passengers with 

disabilities had differing views on the 

existing and proposed requirements for 

carriers to permit passengers to provide 

written instructions about the 

disassembly and reassembly of 

wheelchairs. Some of the former 

suggested requiring passengers to 

provide the manufacturer’s instructions; 

some of the latter suggested that the 

airline employee who disassembles the 

wheelchair provide written instructions 

that would go forward to the employee 

who reassembles the wheelchair at its 

destination telling that employee how to 

put the device back together. 

The Department believes that both 

suggestions have some merit. To the 

extent that there are relevant 

manufacturer’s instructions, it seems 

useful for passengers to provide a copy 

to carriers. We do not think it would be 

appropriate to require the provision of 

manufacturer’s instructions, since they 

may not exist in all cases and may not 

apply to specialized or customized 

features of a particular passenger’s 

device. It also seems plausible that a 

user of a particular device would be in 

a good position to provide experiencebased instructions to the carrier. 

Likewise, to the extent that a carrier 

employee at the passenger’s originating 

airport can write down a ‘‘here’s how I 

took it apart and here’s how it goes back 

together’’ note to his counterpart at the 

destination, the information could be 

helpful to the latter. However, the 

employee may not have time to do so, 

and some passengers may prefer that the 

employee does not do so (i.e., out of 

concern that the employee could get it 

wrong). Consequently, we do not 

believe it advisable to change the 

proposed language. 

Some carrier comments said that 

Warsaw/Montreal convention 

provisions controlled payments for 

items carried as baggage and that the 

Department should not attempt to alter 

compensation requirements for 

international flights. We agree, and the 

Foreign Carriers NPRM proposed to 

make compensation requirements for 

lost or damaged mobility aids applicable 

only to U.S. domestic passenger trips. 

The final rule will do the same. 

Some commenters suggested that the 

advance check-in time for persons 

delivering mobility aids for 

transportation in the baggage 

compartment should be 60 minutes 

before the regular check-in time for 

passengers, rather than 60 minutes 

before scheduled departure time. We 

agree, and we have changed the rule 

accordingly. 

Some carrier comments noted that the 

existing and proposed regulatory 

language concerning luggage that 

doesn’t make a flight because of the 

space taken by a wheelchair calls for the 

carrier to make best efforts to deliver the 

luggage within four hours. Commenters 

said that this often was not practical in 

international service, where flights may 

be scheduled at intervals of one a day 

or less. This is a fair comment; we have 

changed the language to say that such 

luggage must be placed on the carrier’s 

next flight. We believe this is a 

reasonable standard for domestic as well 

as international flights. 

The Department recognizes that there 

may be some circumstances in which it 

is not practical to stow an electric 

wheelchair, or some other sort of 

assistive device, in the baggage 

compartment. Only devices that fit and 

that meet all applicable hazardous 

materials and other safety regulations 

need be carried. 

Some wheelchairs—such as those 

equipped with securely mounted nonspillable batteries or those for which the 

carriers remove the batteries and stow 

them separately under 49 CFR 

175.10(a)(15) and (16)—are capable of 

being stowed in other than an upright 

position without damage to the 

wheelchair or batteries. However, if the 

physical size of the compartment—its 

actual dimensions, not crowding caused 

by other items—do not permit a 

wheelchair to be carried upright safely 

without risk of serious damage to the 

wheelchair, or a load imbalance caused 

by a large wheelchair in a small baggage 

compartment may violate weight and 

balance safety requirements, carriers 

could legitimately decline 

transportation of the item on that flight 

and should assist the passenger in 

identifying a flight using an aircraft that 

can accommodate the chair. 

Given that the rule allows the carrier 

to require 48 hours’ advance notice with 

respect to carrying electric wheelchairs, 

the carrier should use this time period 

to find an arrangement that will get the 

passenger and his or her chair to the 

intended destination. For example, 

when a change to a smaller aircraft the 

day before the flight’s departure will 

preclude the passenger’s wheelchair 

from being accommodated in the cargo 

hold (e.g., the cargo space dimensions 

are too small for the chair to fit), the 

carrier must either offer the passenger 

alternative transportation at a different 

time or provide a fare refund. In 

circumstances where the passenger 

accepts alternative transportation on a 

flight of a different carrier, the first 

carrier must, to the maximum extent 

feasible, provide assistance to the 

second carrier in providing the 

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 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27629 

needing a seating accommodation (e.g., 

48 hours). While it is always a good idea 

for passengers and carriers to 

communicate about accommodations as 

early as possible, the Department’s 

ACAA regulations and 

nondiscrimination policies have 

discouraged advance notice policies as 

an undue limitation of the ability of 

passengers with disabilities to travel 

freely and without discrimination. The 

experience of U.S. carriers with the 

existing seating accommodations 

provision suggests that carriers can 

provide needed seating 

accommodations without additional 

advance notice. 

There were several miscellaneous 

comments concerning seating 

accommodations. One carrier 

commented that persons with fused legs 

could be transported more comfortably 

in a rear window seat rather than a 

bulkhead seat in some aircraft 

configurations. This approach appears 

consistent with section 382.81 of the 

final rule, which requires carriers to seat 

a passenger with a fused leg in a 

bulkhead seat ‘‘or other seat that 

provides greater legroom than other 

seats.’’

Another carrier mentioned that 

because it provides ‘‘soft bulkheads’’

and ‘‘inflatable seatbelts’’ in some seats, 

national safety regulations prohibit 

seating some persons with disabilities in 

those seats. In this case, the carrier 

would then have to accommodate a 

passenger with a fused leg in any other 

seat on the aircraft offering greater 

legroom. If due to a particular aircraft 

model’s design, no seat on that model 

other than those prohibited by national 

regulations offered greater legroom, the 

carrier would have to apply for a 

conflict of law waiver. We do not 

believe it is appropriate, as some 

disability groups suggested, to require 

bulkhead row seating to be made 

available to all wheelchair users. The 

apparent rationale for this request was 

to make it more convenient for such 

passengers to access their personal 

wheelchairs quickly in order to transfer 

to another flight or exit the airport. The 

rationale of the bulkhead seating 

accommodation for people with fused 

legs, however, is to make seating on the 

flight itself less difficult or 

uncomfortable for passengers, rather 

than easing the passenger’s exit. A 

disability group asked the Department 

to clarify that wheelchair users are not 

limited to sitting in aisle seats. We 

agree, like the existing ACAA rule, the 

final rule does not allow carriers to limit 

seating options for passengers with 

disabilities, except where needed to 

comply with applicable safety rules 

(e.g., concerning exit rows). 

Accommodations for Passengers Who 

Use Oxygen Devices 

A. Passenger-Owned Respiratory 

Devices 

1. Covered Entities 

In the Oxygen NPRM, we proposed 

that the requirements concerning the 

evaluation and use of passenger-owned 

electronic devices that assist passengers 

with respiration apply to all operations 

worldwide of U.S. air carriers that 

conduct passenger carrying service 

other than on-demand air taxi operators. 

The Oxygen NPRM proposed to cover 

foreign carriers operating flights to and 

from the United States in as similar a 

fashion as possible to U.S. air carriers. 

We also specifically requested comment 

as to whether the Department should 

limit coverage of this section to carriers 

operating larger than 60-seat aircraft and 

whether flights operated by commuter 

carriers should be covered. 

Consumers argued against an 

exception for aircraft with 60 or fewer 

seats and favored a regulation of general 

applicability because many carriers that 

operate ‘‘hub and spoke’’ service as well 

as many carriers that service smaller 

cities and less frequently traveled routes 

use small aircraft. Consumers also 

asserted that it would frustrate the 

purpose of the regulation to exempt 

flights operated by commuter carriers as 

many individuals who use medical 

oxygen fly on commuter carriers from 

small regional airports to larger airports 

to connect to a flight to their ultimate 

destination. However, small carriers 

supported an exception for aircraft with 

60 or fewer seats because of the costs 

associated with the regulation, 

particularly the cost of testing to 

determine if the electronic respiratory 

assistive devices interfere with the 

navigation or communication systems of 

each model of aircraft operated by the 

carrier. These carriers explained that 

testing would be more costly for small 

carriers because they do not have the 

technical knowledge or personnel 

necessary for testing, necessitating the 

hiring of subcontractors for compliance 

testing. Small carriers also indicated 

concern with the onboard service 

obligations associated with permitting 

passengers to use electronic respiratory 

assistive devices on an aircraft since 

there is no flight attendant on aircraft 

with fewer than 20 seats and only one 

flight attendant on aircraft with 20 to 50 

seats Further, small carriers asserted 

that allowing a passenger to use an 

electronic respiratory device such as a 

portable oxygen concentrator (POC) 

onboard small aircraft is of limited 

benefit because they contend that many 

regional flights are one hour in length 

and carriers can prohibit the use of 

electronic devices during take-off and 

landing which can take a total of 

approximately forty minutes, leaving 

the passenger with only twenty minutes 

to use his/her device. 

After fully considering the comments 

received regarding the applicability of 

section 382.133 to carriers, the 

Department believes that it is reasonable 

to apply the requirements of this section 

to U.S. and foreign carriers that conduct 

passenger carrying service other than 

on-demand air taxis and not to exempt 

carriers that only operate aircraft with 

60 or fewer seats. The contention of 

small carriers that the costs associated 

with the requirements in this section 

would be unduly burdensome to them 

no longer carries the same weight, since 

this final rule shifts the responsibility 

for electromagnetic interference testing 

of the four types of electronic 

respiratory assistive devices from the 

carriers as proposed in the Oxygen 

NPRM to the manufacturers of these 

devices, as the manufacturers have a 

market incentive to test such devices. 

(See the discussion of industry 

comments on this issue in the section 

below entitled ‘‘Testing and Labeling of 

Electronic Respiratory Assistive 

Devices.’’) The Department is also not 

persuaded that there are onboard service 

obligations associated with permitting 

passengers to use electronic respiratory 

assistive devices that require the 

assistance of a flight attendant. We also 

find unpersuasive the argument that 

electronic respiratory devices such as 

POCs are of limited use onboard small 

aircraft because they tend to operate 

shorter flights during which passengers 

could only use their devices for a small 

portion of the total flight time as it 

presumes that the devices cannot be 

used during ascent and descent. A 

device’s use during a particular phase of 

a flight (e.g., ascent and descent) should 

be prohibited only if the device cannot 

be safely used during that phase (e.g., 

interferes with navigation or 

communications equipment). Absent 

evidence of such interference gained 

from the required testing, this rule 

requires carriers to allow passengers to 

use their electronic respiratory assistive 

devices, including POCs approved by 

the Federal Aviation Administration 

(FAA), during all phases of flight if safe. 

2. Types of Electronic Respiratory 

Assistive Devices 

We proposed in the Oxygen NPRM to 

address the carriage of four types of 

portable electronic respiratory assistive 


rwilkins on PROD1PC63 with RULES2
27630 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

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 passengercarrying service other than an ondemand air taxi operator to perform the 

necessary evaluation and testing of 

these devices to ascertain whether such 

device can be used safely by passengers 

during a flight on each aircraft that the 

foreign carrier operates on flights to and 

from the U.S. 

Industry commenters as well as some 

consumers said that the burden of 

testing should be shifted away from the 

carriers. The Air Transport Association 

and other industry commenters 

proposed that carriers only be required 

to permit the use of an electronic 

respiratory assistive device that has 

been tested and marked as approved by 

RTCA, Inc. (formerly the Radio 

Technical Commission for Aeronautics). 

These commenters argued that if 

carriers have the option of refusing to 

carry any device that is not tested and 

marked as approved by the RTCA then 

the device manufacturers would have an 

incentive to test their devices and 

produce safety testing results for the 

carriers to review. Other commenters 

suggested that the device manufacturers 

and the aircraft manufacturers should be 

required to conduct the testing and then 

label the device as approved for use 

aboard aircraft, as manufacturers have 

the greatest incentive to test devices. 

Industry commenters also requested that 

the FAA create a generic safety standard 

for testing respiratory devices as well as 

a uniform labeling system for all 

approved devices to cut down on 

confusion by carriers and passengers. 

Having considered all of these 

comments, the Department is persuaded 

that responsibility for electromagnetic 

interference testing of the four types of 

electronic respiratory assistive devices 

covered in the Oxygen NPRM should be 

borne by the manufacturers of such 

devices rather than the carriers. 

However, this regulation does not 

mandate manufacturer testing. The FAA 

is considering whether to issue an 

NPRM in which the agency would 

propose to require manufacturers that 

want to market their ventilators, 

respirators, CPAP machines, and FAAapproved POCs for passenger use on 

aircraft to test those devices against 

FAA-prescribed performance standards 

and affix a label to each device stating 

that it meets the applicable standards 

prescribed in the federal aviation 

regulations. If the FAA decides to issue 

such an NPRM, the NPRM would clarify 

that those manufacturers that do not 

intend to market their devices for use on 

aircraft would be under no obligation to 

conduct any testing and would not be 

permitted to affix a label indicating FAA 

approval. The manufacturers that want 

to market such devices for use on 

aircraft but whose devices fail to meet 

the performance standards would also 

not be permitted to affix a label 

indicating FAA approval. Moreover, the 

FAA will consider whether to include 

other proposals in that NPRM, including 

specifying how a carrier would ‘‘verify’’

whether the aforementioned electronic 

respiratory assistive devices meet FAA 

performance standards. 

In this rulemaking, we are strongly 

encouraging manufacturers that market 

their electronic respiratory assistive 

devices for use by passengers on aircraft 

to test their devices to determine 

whether they meet FAA electromagnetic 

and radio frequency interference 

emission standards set forth in FAA 

Advisory Circular No. 91.21–1B, and if 

they do so, to label the devices as FAAcompliant. The label should indicate 

that the device is approved for air travel 

(i.e., the device can be used safely 

during all phases of travel). The FAA 

generally prohibits the operation of 

portable electronic devices aboard U.S. 

registered civil aircraft while operating 

under instrument flight rules. See 14 

CFR 91.21. However, the FAA through 

its Advisory Circular No. 91.21–1B 

allows U.S. carriers to permit passengers 

to use onboard the aircraft specified 

portable electronic devices (including 

the four types of respiratory devices 

addressed in this rulemaking) that have 

been tested by the manufacturer and 

found to not exceed the maximum level 

of radiated radio frequency interference 

as described in section 21, Category M 

of RTCA Document (DO)–160 while in 

all modes of operation, without any 

further testing by the carrier to establish 

compliance with this performance 

standard. It is worth noting that the 

FAA does not have a prohibition on the 

operation of portable electronic devices 

aboard civil aircraft registered in a 

country other than the United States. 

This rule requires U.S. carriers to 

permit individuals to use electronic 

respiratory assistive devices in the 

passenger cabin so long as the devices 

have been tested and labeled by their 

manufacturer(s) as meeting the 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27631 

applicable FAA requirements for 

medical portable electronic devices as 

described in FAA Advisory Circular No. 

91.21–1B (the FAA-approved POCs 

would also be subject to the 

requirements of Special Federal 

Aviation Regulation 106) and the device 

can be stowed consistent with FAA 

cabin safety requirements. At present, a 

label indicating that the device complies 

with RTCA standards meets FAA 

requirements and need not specifically 

state that the device is FAA approved. 

The final rule also requires foreign 

carriers to permit individuals to use 

electronic respiratory assistive devices 

in the passenger cabin if certain 

conditions are met. First, the device 

must have been tested and labeled by its 

manufacturer as meeting the 

requirements for medical portable 

electronic devices set by the foreign 

carrier’s government. If the foreign 

carrier’s government does not have 

applicable requirements, then the 

carrier may elect to apply requirements 

for medical portable electronic devices 

set by the FAA for U.S. carriers. It 

would be a violation of our rules for a 

foreign carrier to prohibit a passenger 

from using his/her ventilator, respirator, 

CPAP machine, or POC in the passenger 

cabin because its government has not 

issued applicable rules on the testing or 

labeling of electronic respiratory 

assistive devices. We encourage foreign 

carriers to apply FAA requirements for 

medical portable electronics where the 

foreign carriers’ government has not 

issued applicable rules. Otherwise, it is 

not clear how the foreign carrier can be 

assured that the electronic respiratory 

assistive device that it is accepting for 

use in the cabin is safe. Also, the 

electronic respiratory assistive device 

must be stowed and used in the 

passenger cabin consistent with any 

applicable U.S. regulations and the 

regulations of the carrier’s government. 

We expect that both U.S. and foreign 

carriers will inspect the device label at 

the departure gate to ensure that it is 

labeled by the manufacturer in 

accordance with the applicable 

regulations. U.S. carriers’ internal 

procedures must ensure that approved 

devices bearing labels indicating that 

they meet the FAA requirements are 

accepted. For foreign carriers, devices 

containing labels indicating that the 

device meets requirements set by the 

foreign carrier’s government or, if no 

such requirement exists, the 

requirements for medical portable 

electronics set by the FAA for U.S. 

carriers, should be accepted. 

4. Passenger Information 

We explained in the Oxygen NPRM 

that carriers would be required to 

inform passengers, on request, about 

any restrictions on using their personal 

respiratory assistive devices aboard the 

carrier’s flights (e.g., device can only be 

used after takeoff and before landing, 

availability of electrical outlets). In this 

regard, we indicated that we thought 

carriers would need to maintain some 

type of list of approved or disapproved 

devices and sought comments as to 

what extent carriers should be required 

to provide information to disabled air 

travelers. We also asked about the issues 

that are raised if carriers are required to 

provide information on the limitation of 

the carriers’ codeshare partners to 

accommodate the use of respiratory 

devices. 

The Department received a number of 

comments from consumers strongly 

urging that a centralized list of approved 

and disapproved devices be provided by 

carriers, airports and/or the government. 

Industry comments varied, with some 

carriers indicating a willingness to 

provide this information, while others 

believed a list of approved and 

disapproved devices would be difficult 

to maintain and would open the airline 

up to liability. Many carriers suggested 

that the Department provide a list of 

approved devices through its Web site 

and by phone. Carriers also expressed 

concern about any requirement to 

provide information on the limitation of 

its codeshare partners to accommodate 

the use of respiratory devices. 

According to these carriers, some 

carriers have up to ten codeshare 

partners and the burden of knowing the 

limitation of its codeshare partners’

ability to provide accommodations 

would be substantial. 

Because this final rule shifts the 

responsibility for testing the electronic 

respiratory assistive devices from the 

carriers to the manufacturers of such 

devices and requires carriers to permit 

passengers to use these devices aboard 

aircraft only if appropriately labeled, we 

do not see a need for carriers or any 

other entity to produce a central list of 

approved or disapproved devices. A 

passenger can simply look to see if the 

label on his/her electronic respiratory 

assistive device indicates that the device 

has been approved for air travel (i.e., no 

restriction on the device’s use during 

any phase of travel). 

However, we do see a need for 

carriers, during the reservation process, 

to inform passengers who express a 

desire to use a respirator, ventilator, 

CPAP machine, or FAA-approved POC 

aboard an aircraft of the conditions that 

must be met before these devices can be 

approved for such use. For instance, this 

final rule requires carriers through their 

reservation agents to inform passengers 

of the maximum weight and dimensions 

of a device that can be accommodated 

in the aircraft cabin, the requirement 

that an electronic respiratory assistive 

device be labeled appropriately, any 

requirement for advance check-in, any 

requirement for the individual to 

contact the carrier before the scheduled 

departure to learn the expected 

maximum duration of his/her flight, the 

requirement to bring an adequate 

number of fully charged batteries (i.e., 

battery is charged to full capacity) to 

power the electronic respiratory device 

and to ensure that extra batteries are 

packaged properly, and the requirement 

that an individual who wishes to use a 

POC provide a physician’s statement. 

While a carrier can require a physician’s 

statement (i.e., medical certificate) from 

an individual who wishes to use a POC 

during flight, we note that it normally 

would not be appropriate for a carrier to 

ask for such a certificate from someone 

wishing to use a ventilator, respirator or 

CPAP machine aboard a flight. 

Consistent with section 382.23, a 

medical certificate should be required of 

an individual who uses a ventilator, 

respirator or CPAP machine only if the 

individual’s medical condition is such 

that there is reasonable doubt that the 

individual can complete the flight 

safely, without requiring extraordinary 

medical assistance during the flight. 

The Department understands the 

concerns expressed by carriers regarding 

the difficulty and the costs associated 

with providing information to 

passengers about the limitation on the 

ability of its codeshare partners to 

accommodate users of respiratory 

devices. The Department also believes 

that it is imperative that users of 

electronic respiratory assistive devices 

receive, in advance, accurate 

information concerning any limitation 

on the ability of the carrier to 

accommodate their need to use such a 

device in the cabin of the aircraft. The 

Department has tried to balance these 

somewhat conflicting concerns/needs. 

The final rule requires that, in a 

codeshare situation, the carrier whose 

code is used on the flight must either 

advise an individual who inquires about 

using his/her electronic respiratory 

assistive device onboard an aircraft to 

contact the carrier operating the flight 

for information about its requirements 

for use of such a device in the cabin, or 

provide such information on behalf of 

the codeshare carrier operating the 

flight. For example, consider a 


rwilkins on PROD1PC63 with RULES2
27632 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

passenger who buys a codeshare ticket 

from carrier A for a connecting itinerary 

from New York to Cairo through 

London, where carrier A operates the 

New York to London leg and carrier B 

operates the London to Cairo leg under 

carrier A’s designator code. In this 

example, carrier A must upon inquiry 

from the passenger: (1) Inform the 

passenger about carrier A’s 

requirements for the use in the cabin of 

a ventilator, respirator, CPAP machine 

or POC and (2) inform the passenger 

about carrier B’s requirements for the 

use in the cabin of the aforementioned 

devices or tell the passenger to contact 

carrier B directly to obtain this 

information. 

5. Advance Notice 

We sought comments in the Oxygen 

NPRM about operational reasons, if any, 

in support of permitting carriers to 

require a passenger with a disability to 

provide advance notice of his or her 

intention to use a battery-operated 

CPAP machine, an approved POC, a 

respirator or a ventilator aboard a flight. 

We also asked whether carriers should 

be permitted to require a passenger to 

provide advance notice of his or her 

intention to use the aircraft electrical 

system as well as what would be a 

reasonable amount of advance notice. 

Industry commenters provided a 

number of operational reasons why they 

said there should be advance notice 

requirements for individuals who wish 

to use electronic respiratory assistive 

devices aboard a flight. These 

commenters explained that advance 

notice is needed to: (1) Ensure the 

device is approved for use onboard the 

aircraft; (2) ensure that a passenger 

brings an adequate battery supply to 

power his/her device; (3) ensure that the 

respiratory device is medically 

necessary; (4) ensure the pilot in 

command is apprised when a passenger 

is using a POC; and (5) ensure that the 

passenger has talked with his/her 

physician regarding fitness to fly with 

the respiratory assistive device. Many 

consumers also indicated that they were 

comfortable with an advance notice 

requirement for individuals who wish to 

use a battery-operated CPAP machine, 

an approved POC, a respirator or a 

ventilator aboard a flight. There was, 

however, disagreement as to what 

would constitute a reasonable amount of 

advance notice. While most consumer 

and industry comments indicated that 

48 hours is a reasonable amount of 

advance notice, some industry 

comments asked for 96 hours advance 

notice for international flights and a few 

consumers stated that 24 hours is 

sufficient notification. 

With respect to electrical outlets, 

industry comments strongly urged that 

electrical outlets not be relied upon by 

respiratory device users. According to 

these commenters, electronic device 

users cannot depend on the presence of 

an outlet, as most aircraft do not have 

electrical outlets; the electrical outlets 

that are available on aircraft may not be 

compatible with the passenger’s device, 

as most respiratory assistive devices 

require more wattage; electrical outlets 

may be turned off during takeoff and 

landing; and the carrier may switch 

aircraft and use aircraft with no outlets 

at the last minute. 

Based on the comments received and 

the Department’s belief that providing 

48 hours’ advance notice would not be 

burdensome for consumers, this final 

rule permits carriers to require up to 48 

hours’ advance notice from individuals 

who wish to use electronic respiratory 

assistive devices aboard a domestic or 

international flight. The Department 

believes that a 48 hour advance notice 

is reasonable as that time period 

provides sufficient time for carriers to 

prepare for the accommodation. Further, 

in other sections of this Part where a 

carrier has been permitted to require a 

qualified individual with a disability to 

provide advance notice of his or her 

need for certain accommodations or of 

his or her disability as a condition of 

receiving the requested accommodation, 

that advance notice has been limited to 

48 hours. The Department also believes, 

as comments provided by the industry 

representatives contend, that electrical 

outlets are generally not reliable sources 

of power for electronic respiratory 

assistive devices. Of course, if a carrier 

is confident that the electrical outlet on 

the aircraft is reliable (e.g., 

uninterrupted service), nothing in this 

rule prohibits the carrier from 

permitting a passenger to plug his/her 

electronic respiratory assistive device 

into such an outlet, consistent with 

applicable FAA safety rules. 

6. Advance Check-In Time 

The proposed rule asked questions 

about operational reasons, if any, for 

requiring passengers who request to use 

their respiratory assistive devices to 

comply with an advance check-in 

deadline. It also asked about issues 

passengers who use respiratory assistive 

devices would face if carriers were 

permitted to require an advance checkin deadline, as well as what would be 

a reasonable length of time for the 

advance check-in. 

Comments provided by the industry 

to justify the need for advance check-in 

are similar to the justifications provided 

for advance notice (e.g., to ensure the 

device is safe for use on board, to ensure 

proper packaging of batteries, ensure an 

adequate supply of batteries). 

Consumers questioned whether advance 

check-in is necessary if a passenger 

provides advance notice of his/her 

intention to bring and use the electronic 

respiratory assistive devices. The 

consumers noted that they have other 

obligations and restrictions on their 

time and that advance check-in places 

significant burdens on their time. If 

advance check-in is required, consumer 

commenters favored a one hour advance 

check-in requirement. Industry 

comments supported one hour advance 

check-in for all domestic flights but two 

hour advance check-in for international 

flights. Carrier comments also sought 

the authority to deny boarding if a 

passenger has failed to comply with the 

carrier’s procedural instructions on 

using electronic devices onboard. 

The Department believes that it is 

necessary to permit carriers to require 

advance check-in to enable the carrier 

personnel to inspect the label on the 

electronic respiratory assistive device to 

ensure that it was labeled by the 

manufacturer in accordance with the 

applicable regulations and to ensure 

that a passenger is carrying an adequate 

number of properly packaged batteries 

to power his/her assistive device. The 

Department generally believes that one 

hour advance check-in is reasonable for 

both domestic and international flights, 

especially since ‘‘advance check-in’’ as 

used in this rule means checking in one 

hour before the carrier’s normal checkin time for the general public. Thus, for 

example, if a carrier’s normal check-in 

deadline for all passengers for an 

international flight is one hour before 

scheduled departure time, the carrier is 

free to require passengers who wish to 

use electronic respiratory assistive 

devices to check in two hours before 

scheduled departure time. That having 

been said, it would not be reasonable for 

a carrier to require one hour advance 

check-in in situations where a passenger 

is not able to check-in one hour in 

advance because the passenger’s 

connecting flight arrived late. Consider 

the example, of a codeshare connecting 

itinerary from Washington, DC to 

Johannesburg through Rome, where 

carrier A operates the segment from 

Washington, DC to Rome and carrier B 

operates the segment from Rome to 

Johannesburg. If carrier B has a one hour 

advance check-in requirement and the 

passenger checks in for the flight to 

Johannesburg less than an hour before 

departure due to carrier A’s late arrival 

in Rome, the passenger must be 

accepted on the flight to Johannesburg 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27633 

up until carrier B’s general check-in 

deadline for all passengers on that 

flight. The Department is not persuaded 

by consumer comments that one hour 

advance check-in would be a significant 

burden on them, particularly since this 

rule would not permit carriers to require 

a one hour advance check-in for a 

passenger who is not able to meet that 

requirement due to his/her connecting 

flight arriving late. The Department is 

also not persuaded by industry 

comments that a two hour advance 

check-in is needed for international 

flights, in part because the information 

that the carrier personnel will be 

verifying at the departure gate does not 

change based on whether the flight is a 

domestic flight or an international 

flight. 

7. Seating Accommodations 

In the Oxygen NPRM, we asked 

whether a passenger who uses a 

ventilator, respirator, CPAP machine or 

an FAA-approved POC should be given 

priority over users of other types of 

electronic equipment that are not 

assistive devices (e.g., laptops) with 

respect to obtaining power for the 

device from the aircraft’s electrical 

outlets. Virtually all of the consumer 

comments stated that upon request 

airlines should be required to seat a 

passenger who self-identifies as using 

an electronic respiratory assistive device 

next to an electrical outlet, if one is 

available on the aircraft. Industry 

comments on this issue varied. Some 

carriers supported providing priority 

seating while other industry 

commenters opposed this proposal. The 

industry commenters that opposed 

providing priority seating asserted that 

access to seats with electrical outlets is 

an aircraft amenity based on other 

considerations (e.g., frequent flier 

status) and explained that the cost of 

ensuring access to electric outlets is 

burdensome. Some of the costs 

attributed to implementing the proposed 

seating accommodation include the cost 

to a carrier of updating its seating maps 

to indicate the presence of electric 

outlets, updating its reservation system 

to allow blocking of seats near outlets 

for qualified disabled passengers, and 

training flight attendants and others 

regarding the location of each aircraft’s 

electrical outlets. Also, as noted above, 

many industry comments emphasized 

that not all aircraft have outlets and the 

unreliability of electrical outlets on 

aircraft that do have them (e.g., outlets 

turned off during take off and landing, 

outlets often don’t have sufficient 

wattage to power respiratory devices). 

The Department is not convinced by 

the industry arguments opposing 

priority seating on the basis of costs 

associated with such a seating 

accommodation but is convinced that, 

for safety reasons, it would not be good 

policy to have any requirements 

concerning the use of electrical outlets 

when electrical outlets are not available 

on a number of aircraft and are generally 

not reliable sources of power for 

electronic respiratory assistive devices. 

Therefore, this rule does not mandate 

that carriers allow users of respiratory 

assistive devices to plug their devices 

into the aircraft’s power supply or to 

provide priority seating near such 

outlets. The Department does encourage 

carriers to permit passengers to hook up 

the four types of respiratory assistive 

devices to the aircraft electrical power 

supply in circumstances where the 

carrier is confident that the electrical 

outlet on the aircraft is reliable (e.g., 

uninterrupted service). 

8. Batteries 

The Oxygen NPRM sought 

information about whether the rule 

should allow carriers to require users of 

electronic respiratory devices to carry a 

certain number of batteries. It also 

solicited comments about what action 

the Department should authorize the 

carrier to take if a passenger does not 

bring a sufficient number of batteries to 

power an electronic respiratory assistive 

device or a passenger does not ensure 

that the batteries for the device are 

packaged in a manner to allow them to 

be transported safely in the cabin. 

Consumers generally agreed that it 

would be appropriate to require users of 

electronic respiratory assistive devices 

to carry a sufficient number of batteries 

to power the device for 1.5 times the 

length of the flight. Some carriers 

suggested that users of electronic 

respiratory assistive devices should 

carry enough batteries to power the 

device for the length of the flight plus 

an additional two hours. Other 

comments suggested enough batteries to 

power the device for 1.5 times the 

length of the flight plus one additional 

battery. There were also comments 

recommending that the passenger’s 

physician should indicate the 

appropriate number of batteries in the 

prescription that indicates the 

passenger’s medical need for the device. 

A number of carriers asked for the 

authority to refuse to carry a passenger 

who does not have an adequate number 

of batteries. A few carriers asked to be 

able to charge the passenger who does 

not carry a sufficient number of batteries 

for the cost of any resulting emergency 

action that may be required. Many 

industry comments also suggested that 

PHMSA and FAA should be involved in 

the discussion of the appropriate 

number of batteries to carry in the cabin 

to ensure that an excessive number of 

batteries is not carried onboard. 

After fully considering the comments 

received and consulting with FAA and 

PHMSA personnel, the Department has 

determined that there is no need to 

place a limit on the number of batteries 

users of electronic respiratory devices 

transport in the cabin of an aircraft. The 

FAA and PHMSA are confident that 

batteries that are protected against short 

circuits and wrapped in strong outer 

packagings can safely be transported in 

the passenger cabin provided there are 

sufficient approved stowage locations 

available. On March 26, 2007, PHMSA 

published a safety advisory to inform 

the traveling public and airline 

employees about the importance of 

properly packing and handling batteries 

and battery-powered devices when they 

are carried aboard aircraft. Federal 

regulations require that electrical 

storage batteries or battery-powered 

devices carried aboard passenger aircraft 

be properly packaged or protected to 

avoid short-circuiting or overheating. In 

its safety advisory, PHMSA suggested 

various practical measures for 

complying with the regulations and 

minimizing transportation risks. 

Recommended practices include 

keeping batteries installed in electronic 

devices; packing spare batteries in carryon baggage; keeping spare batteries in 

their original retail packaging; 

separating batteries from other metallic 

objects such as keys, coins and jewelry 

by packing individual batteries in a 

sturdy plastic bag; securely packing 

battery-powered equipment in a manner 

to prevent accidental activation; and 

ensuring batteries are undamaged and 

purchased from reputable sources. 

The Department has decided to allow 

a carrier to require an individual who 

uses a ventilator, respirator, CPAP 

machine or FAA-approved POC to bring 

an adequate number of fully charged 

batteries onboard to operate the device 

for not less than 150% of the expected 

maximum flight duration. The 

appropriate number of batteries should 

be calculated using the manufacturer’s 

estimate of the hours of battery life 

while the device is in use and the 

information provided in the physician’s 

statement (e.g., flow rate for POCs). The 

expected maximum flight duration is 

defined as the carrier’s best estimate of 

the total duration of the flight from 

departure gate to arrival gate, including 

taxi time to and from the terminals, 

based on the scheduled flight time and 

factors such as (a) wind and other 

weather conditions forecast; (b) 

anticipated traffic delays; (c) one 


rwilkins on PROD1PC63 with RULES2
27634 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

instrument approach and possible 

missed approach at destination; and (d) 

any other conditions that may delay 

arrival of the aircraft at the destination 

gate. This rule also makes it clear that 

a carrier may deny boarding, on the 

basis of safety, to an individual who 

does not carry the number of fully 

charged batteries prescribed in the rule 

or an individual who does not properly 

package the extra batteries needed to 

power his/her device. Information for 

passengers on how to safely travel with 

batteries is available at 

safetravel.dot.gov. However, a carrier 

may not deny boarding due to an 

inadequate number of batteries unless 

the carrier can provide information from 

a reliable source demonstrating that the 

number of batteries that the passenger 

has supplied will not provide adequate 

power for 150% of the expected 

maximum flight duration based on the 

battery life indicated in the 

manufacturer’s specification when the 

device is operating at the flow rate 

specified in the physician’s statement. It 

is also worth noting that the 

requirement to bring an adequate 

number of batteries to continuously 

operate the device for up to 150% of the 

expected maximum flight duration does 

not apply in circumstances where the 

passenger will be using an FAA 

approved POC while boarding or 

disembarking from the aircraft and will 

not be relying on the POC during flight 

because the passenger has contracted for 

carrier-supplied oxygen. In instances 

where the carrier denies boarding to an 

individual, the carrier must provide the 

individual a written statement of the 

reason for the refusal to provide 

transportation within 10 days of the 

incident. 

B. Carrier-Supplied Oxygen 

The Oxygen NPRM proposed to 

require certificated U.S. carriers 

operating aircraft that conduct 

passenger-carrying service with at least 

one aircraft having a designed seating 

capacity of more than 60 passengers and 

foreign carriers operating to and from 

the United States that conduct 

passenger-carrying service with at least 

one aircraft having a designed seating 

capacity of more than 60 passengers to 

provide passengers free in-flight 

medical oxygen in accordance with 

applicable safety rules. The Department 

is committed to providing individuals 

dependent on medical oxygen greater 

access to air travel, consistent with 

Federal safety and security 

requirements. However, in order to 

obtain additional information about the 

cost of carrier-supplied in-flight medical 

oxygen, the Department is deferring 

final action on this proposal. 

Under existing Air Carrier Access Act 

interpretation and practice, carriers are 

not required to make modifications that 

would constitute an undue burden or 

fundamentally alter the nature of the 

carriers’ service. As a matter of 

disability law, undue burden implies 

that there may necessarily be some 

burden (a ‘‘due burden’’) in 

accommodating someone’s disability. 

Generally, an action is deemed to be an 

undue burden if it would require 

significant difficulty or expense on the 

part of the covered entity when 

considered in light of factors such as the 

overall size of the business, the financial 

resources of the business, the type of 

operation, and the nature and cost of the 

accommodation. There is no hard and 

fast rule about what is or is not an 

‘‘undue burden.’’ The portion of the cost 

of carrier-supplied oxygen that would 

constitute an undue burden could differ 

among carriers and could differ from 

one route to another with the same 

carrier. We do not currently have 

sufficient information available to 

determine if requiring a carrier to 

provide free in-flight medical oxygen 

would create an undue burden. The 

Department will seek additional 

comment about the cost of carriersupplied oxygen in a supplemental 

notice of proposed rulemaking (SNPRM) 

that it plans to issue. The preamble to 

the SNPRM will also discuss comments 

received on the Oxygen NPRM with 

respect to this issue. In the interim, 

carriers can continue to charge for inflight medical oxygen that they choose 

to provide. 

Service Animal Issues 

The subject that attracted the most 

comments on the Foreign Carriers 

NPRM—over 1100 of the 1290 

received—was service animals. 

Interestingly, most of these comments 

did not pertain to anything in the 

Foreign Carriers NPRM’s proposed 

regulatory text, but rather to a guidance 

document concerning transportation of 

service animals that the Department had 

issued in May 2003. As an informational 

matter, this existing guidance document 

was published as an appendix to the 

November 2004 NPRM. The paragraph 

in the document that was the focus of 

most of the comments was the 

following: 

If the service animal does not fit in the 

assigned location, you should relocate the 

passenger and the service animal to some 

other place in the cabin in the same class of 

service where the animal will fit under the 

seat in front of the passenger and not create 

an obstruction, such as the bulkhead. If no 

single seat in the cabin will accommodate the 

animal and passenger without causing an 

obstruction, you may offer the option of 

purchasing a second seat, traveling on a later 

flight or having the service animal travel in 

the cargo hold. As indicated above, airlines 

may not charge passengers with disabilities 

for services required by part 382, including 

transporting their oversized service animals 

in the cargo compartment. (69 FR 64393) 

During the one and a half years 

preceding the issuance of the Foreign 

Carriers NPRM during which the 

guidance had been available, and during 

the over three years since the Foreign 

Carriers NPRM has been issued, there 

have been few if any instances brought 

to the attention of the Department in 

which service animals have been denied 

transportation, separated from their 

owners, or charged for an extra seat. 

Despite this apparent lack of problems 

in the real world of air travel, hundreds 

of comments expressed the fear that 

Department was proposing new 

regulations that would unfairly limit the 

travel opportunities of service animal 

users. Many of these comments 

suggested that there were no 

circumstances under which a service 

animal should be denied transportation 

in the cabin. If there were space 

limitations concerning accommodating 

larger animals, some commenters said, 

airlines should reconfigure their cabins 

to provide some larger spaces. 

The Department believes that the fears 

of these commenters are largely 

unfounded. Nevertheless, in order to 

avoid future misunderstanding, the 

Department is republishing its service 

animal guidance later in the preamble to 

this final rule and has revised the 

language in this guidance document 

concerning carriage of larger, but 

otherwise acceptable, service animals to 

read as follows: 

The only situation in which the rule 

contemplates that a service animal would not 

be permitted to accompany its user at his or 

her seat is where the animal blocks a space 

that, per FAA or applicable foreign 

government safety regulations, must remain 

unobstructed (e.g., an aisle, access to an 

emergency exit) AND the passenger and 

animal cannot be moved to another location 

where such a blockage does not occur. In 

such a situation, the carrier should first talk 

with other passengers to find a seat location 

where the service animal and its user can be 

agreeably accommodated (e.g., by finding a 

passenger who is willing to share foot space 

with the animal). The fact that a service 

animal may need to use a reasonable portion 

of an adjacent seat’s foot space—that does not 

deny another passenger effective use of the 

space for his or her feet—is not, however, an 

adequate reason for the carrier to refuse to 

permit the animal to accompany its user at 

his or her seat. Only if no other alternative 

is available should the carrier discuss less 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27635 

desirable options concerning the 

transportation of the service animal with the 

passenger traveling with the animal, such as 

traveling on a later flight with more room or 

carrying the animal in the cargo 

compartment. As indicated above, airlines 

may not charge passengers with disabilities 

for services required by Part 382, including 

transporting their oversized service animals 

in the cargo compartment. 

In modifying this paragraph in the 

guidance, we deleted the phrase 

concerning the potential purchase of a 

second seat, since there are probably no 

circumstances under which this would 

happen. If a flight is totally filled, there 

would not be any seat available to buy. 

If the flight had even one middle seat 

unoccupied, someone with a service 

animal could be seated next to the 

vacant seat, and it is likely that even a 

large animal could use some of the floor 

space of the vacant seat, making any 

further purchase unnecessary. Of 

course, service animals generally sit on 

the floor, so it is unlikely that a service 

animal would ever actually occupy a 

separate seat. 

We have not taken other steps 

recommended by some commenters, 

such as mandating that airlines 

accommodate coach passengers with 

service animals in first class or 

reconfigure cabins. We would regard 

such mandates as potentially requiring 

a fundamental alteration of airlines’

operations, and consequently outside 

the scope of the statutory authority for 

this rule. 

A second category of comments 

concerned the relationship of service 

animal requirements to Part 382’s 

coverage of foreign carriers. Many 

foreign carriers and their organizations 

stated that foreign carriers often had 

policies more restrictive than those of 

the ACAA (e.g., only dogs, or only dogs 

certified by recognized training schools 

or associations, are accommodated; 

some carriers don’t allow any animals in 

the cabin; service animals may be seated 

only in certain designated locations; 

there are number limits or advance 

notice requirements for service animals 

in the cabin). These commenters 

generally wished to maintain such 

restrictions. 

As a general matter, foreign carrier 

policies with respect to service animals, 

like other foreign carrier policies, are 

subject to the conflict of laws waiver 

and equivalent alternative provisions of 

the final rule. Otherwise, modifying 

carrier policies to accommodate U.S. 

civil rights requirements is something 

foreign carriers must accept as part of 

their obligation to comply with U.S. law 

when flying to and from the U.S. 

In addition to wishing to maintain 

existing policies restricting the access of 

service animals, some commenters 

mentioned that some countries have 

quarantine rules that severely delay or 

limit the entrance of certain animals, or 

effectively prohibit, certain animals—

even service animals—from entering 

those countries. The Department agrees 

that, if Country S prohibits a certain 

kind of animal from entering, an airline 

serving an airport in Country S could 

apply for a conflict of laws waiver to be 

relieved of carrying such an animal to 

that country. Such a waiver would be 

country-specific; however. If the same 

airline is asked to carry the same animal 

to Country R, which does not have such 

a prohibition, the carrier would have to 

transport the creature. The final rule 

also requires carriers to promptly take 

all steps necessary to comply with such 

foreign regulations as are necessary to 

legally transport service animals from 

the U.S. into foreign airports (e.g., the 

United Kingdom’s Pet Travel Scheme). 

Commenters mentioned that some 

persons may have religious or cultural 

objections to traveling in proximity to 

certain service animals. Other 

commenters raised the issue of 

passengers who may have allergies to 

certain animals. It has long been a 

principle of the Department’s ACAA 

and other disability regulations that it is 

improper for a transportation provider 

to deny or restrict service to a passenger 

with a disability because doing so may 

offend or annoy other persons (see for 

instance current 14 CFR 382.31(b) and 

section 382.19(b) of the final rule). This 

principle is again articulated in the final 

rule’s service animal section. Only if a 

safety problem amounting to a direct 

threat can be shown is restricting access 

required by Part 382 justifiable. 

This principle applies to concerns 

about passengers who have allergies not 

rising to the level of a disability or 

cultural or personal objections to being 

on the same aircraft with a certain 

service animal. Their discomfort must 

yield to the nondiscrimination mandate 

of the ACAA. As stated in the 

Department’s service animal guidance, 

to which we have added language 

concerning the handling of allergy 

issues, carriers should do their best to 

accommodate other passengers’

concerns by steps like seating 

passengers with service animals and 

passengers who are uncomfortable with 

service animals away from one other. 

We note that, on flights operated by 

foreign carriers that are not subject to 

these rules, the carriers may, of course, 

apply their own policies with respect to 

carriage of service animals. 

A number of commenters objected to 

the requirement that carriers accept 

animals as service animals on the basis 

of the ‘‘credible verbal assurances’’ of 

passengers, especially in the absence of 

credentials from a training school that 

the carrier recognizes. Under U.S. law 

(the ADA as well as the ACAA), it is 

generally not permissible to insist on 

written credentials for an animal as a 

condition for treating it as a service 

animal. It would be inconsistent with 

the ACAA to permit a foreign carrier, for 

example, to deny passage to a U.S. 

resident’s service animal because the 

animal had not been certified by an 

organization that the foreign carrier 

recognized. When flying to or from the 

United States, foreign carriers are 

subject to requirements of U.S. 

nondiscrimination law, though carriers 

may avail themselves of the conflict of 

laws waiver and equivalent alternative 

provisions of this Part. We acknowledge 

that some foreign carriers may be 

unused to making the kinds of judgment 

calls concerning the credibility of a 

passenger’s verbal assurances that the 

Department’s service animal guidance 

describes, and which U.S. carriers have 

made for over 17 years. However, the 

comments do not provide any 

persuasive evidence that foreign carriers 

are incapable of doing so or that making 

such judgment calls will in any 

important way interfere with the 

operation of their flights. 

A number of carriers commented that 

making provision for service animals on 

long (e.g., trans-oceanic) flights was 

especially problematic. The main 

concern focused on the animals’ eating, 

drinking, and elimination functions. 

They pointed out that health and 

sanitation issues could arise. Some 

service animal users said that their 

animals were well trained to avoid 

creating sanitation problems on even a 

very long flight. The Department agrees 

that, on very long flights, carriers have 

a legitimate concern about sanitation 

issues that could arise if animals relieve 

themselves in the cabin. Consequently, 

the Department has added a provision to 

the regulatory text pertaining to a flight 

segment scheduled to take eight hours 

or more. For such a segment, the carrier 

may, if it chooses, require the passenger 

using the animal to provide 

documentation that the animal will not 

need to relieve itself on the flight or that 

the animal can do so in a way that does 

not create a health or sanitation issue. 

We agree with commenters that carriers 

should not have any responsibility for 

assisting with the eating, drinking, or 

elimination functions of service animals 

on board an aircraft. 


rwilkins on PROD1PC63 with RULES2
27636 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

Another important issue that a 

number of commenters raised 

concerned ‘‘emotional support 

animals.’’ Unlike other service animals, 

emotional support animals are often not 

trained to perform a specific active 

function, such as pathfinding, picking 

up objects, carrying things, providing 

additional stability, responding to 

sounds, etc. This has led some service 

animal advocacy groups to question 

their status as service animals and has 

led to concerns by carriers that 

permitting emotional support animals to 

travel in the cabin would open the door 

to abuse by passengers wanting to travel 

with their pets. 

The Department believes that there 

can be some circumstances in which a 

passenger may legitimately travel with 

an emotional support animal. However, 

we have added safeguards to reduce the 

likelihood of abuse. The final rule limits 

use of emotional support animals to 

persons with a diagnosed mental or 

emotional disorder, and the rule permits 

carriers to insist on recent 

documentation from a licensed mental 

health professional to support the 

passenger’s desire to travel with such an 

animal. In order to permit the 

assessment of the passenger’s 

documentation, the rule permits carriers 

to require 48 hours’ advance notice of a 

passenger’s wish to travel with an 

emotional support animal. Of course, 

like any service animal that a passenger 

wishes to bring into the cabin, an 

emotional support animal must be 

trained to behave properly in a public 

setting. 

We have also noted a concern that 

there could be differences, in the airport 

terminal context, between the ACAA 

regulations that apply to airlines, and 

their facilities and services, contrasted 

with public accommodations like 

restaurants and stores. The DOJ Title III 

rules for places of public 

accommodation govern concession 

facilities of this kind. As a consequence, 

a concession could, without violating 

DOJ rules, deny entry to a properly 

documented emotional support animal 

that an airline, under the ACAA, would 

have to accept. On the other hand, 

nothing in the DOJ rules would prevent 

a concession from accepting a properly 

documented emotional support animal. 

We urge all parties at airports to be 

aware that their services and facilities 

are intended to serve all passengers. 

Airlines, airport operators, and 

concessionaires should work together to 

ensure that all persons who are able to 

use the airport to access the air 

transportation system are able equally to 

use all services and facilities provided 

to the general public. 

Because they make for colorful 

stories, accounts of unusual service 

animals have received publicity wholly 

disproportionate to their frequency or 

importance. Some (e.g., tales of service 

snakes, which grow larger with each 

retelling) have become the stuff of urban 

legends. A number of commenters 

nevertheless expressed concern about 

having to accommodate unusual service 

animals. To allay these concerns, the 

Department has added language to the 

final rule specifying that carriers need 

never permit certain creatures (e.g., 

rodents or reptiles) to travel as service 

animals. For others (e.g., miniature 

horses, pot-bellied pigs, monkeys), a 

U.S. carrier could make a judgment call 

about whether any factors (e.g., size and 

weight of the animal, any direct threat 

to the health and safety of others, 

significant disruption of cabin service) 

would preclude carrying the animal. 

Absent such factors, the carrier would 

have to allow the animal to accompany 

its owner on the flight. Any denial of 

transportation to a service animal would 

have to be explained, in writing, to the 

passenger within 10 days. 

While it is possible that foreign air 

carriers may have safety-related reasons 

for objecting to service animals other 

than dogs, even ones that have been 

successfully accommodated on U.S. 

carriers, these reasons were generally 

not articulated in their comments to the 

docket. Nevertheless, to give foreign 

carriers a further opportunity to raise 

any safety-related objections specific to 

foreign airlines to carrying these 

animals, the final rule does not apply 

the requirement to carry service animals 

other than dogs to foreign airlines. 

However, foreign carriers could not, 

absent a conflict of laws waiver, impose 

certification or documentation 

requirements for dogs beyond those 

permitted to U.S. carriers. We intend to 

seek further comment on this subject in 

the forthcoming SNPRM. 

A few comments suggested adding, to 

the section prohibiting carriers from 

requiring passengers to sign waivers or 

releases of liability, language 

specifically applying this prohibition to 

the loss, injury, or death of service 

animals. We believe that this is a 

sensible suggestion, and we have added 

the language. 

Information for Passengers 

The Foreign Carriers NPRM proposed 

that, similar to the current rule, carriers 

would have to make certain information 

available to passengers with disabilities 

upon request concerning the 

accommodations that were available to 

them for a particular flight. This 

includes the location of seats with a 

movable armrest as well as seats (e.g., 

those in an exit row) that are not 

available to passengers with a disability. 

It also includes information about any 

service limitation as well as the ability 

of an aircraft to accommodate people 

with disabilities (e.g., limitations on 

boarding assistance, limitations on 

storage areas for mobility aids, presence 

or absence of an accessible lavatory). 

The Foreign Carriers NPRM recognized 

that there were circumstances (e.g., 

change of aircraft because of weather or 

mechanical problems) that could affect 

the accuracy of information provided at 

the time a passenger made a reservation. 

Disability community comments 

supported these proposals, which did 

not propose significant substantive 

changes from the provisions of the 

ACAA that have been in effect since 

1990. Some carrier comments objected 

to the provision to identify seats with 

movable armrests, saying that, given the 

variety of cabin configurations and 

aircraft, it would be too hard and too 

expensive to be able to know where 

these seats are located. 

The final rule does not mandate that 

carriers reconfigure cabins on all aircraft 

in order to meet this requirement, as 

some commenters mistakenly appeared 

to conclude. Rather, carriers would 

provide the best information available at 

the time a passenger made a reservation 

or inquiry. If the location of movable 

armrest seats on the aircraft actually 

providing the flight did not match the 

information previously provided to the 

passenger, gate and flight crew 

personnel could modify the passenger’s 

seating assignment prior to or at the 

time of boarding in order to ensure that 

the passenger could transfer to a seat 

with a movable armrest. 

A carrier could make the necessary 

information about seating configurations 

of each aircraft available to its personnel 

for this purpose, noting locations of 

movable armrest seats. We note that 

there are at least two commercial Web 

sites that make detailed information on 

characteristics of each seat of each 

configuration of most carriers’ various 

aircraft models publicly available. 

While these sites do not include 

information on movable armrests, the 

detailed information they make 

available (e.g., the location of seats that 

have sockets available to plug in 

laptops) suggests that doing so would 

not pose an insurmountable technical 

problem. Carriers that found a 

computer-based system too challenging 

could use a low-cost, low-tech means of 

identifying the movable armrest seats 

for gate and flight crew personnel, such 

as placing unobtrusive stickers on the 

seats or a photocopied seating chart that 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27637 

flight attendants and gate agents could 

use. 

Another proposal carried over from 

the existing rule into the Foreign 

Carriers NPRM would require carriers to 

make a copy of Part 382 available at all 

the airports that they serve (for flights to 

the U.S., in the case of foreign airports). 

The Department sought further 

comment on this matter in the DHH 

NPRM. We also proposed to require all 

carriers to give passengers information 

on how to obtain both a copy of Part 382 

in an accessible format and disabilityrelated assistance from the Department 

(i.e., via the Disability Hotline or 

directly from the Aviation Consumer 

Protection Division). We solicited 

comment on our proposals and on the 

potential costs to carriers and benefits to 

passengers of a requirement that carriers 

have copies of Part 382 in accessible 

formats available at all airports involved 

in service to, from, or within the U.S. 

A few disability community 

comments said that the rule should 

specify that the document be made 

available in other accessible formats as 

well as hard copy. Some foreign carrier 

comments objected to making copies of 

a U.S. regulation available, though 

others did not. Most foreign carriers, 

however, opposed any requirement that 

they have copies of Part 382 available at 

airports in accessible formats as 

unreasonably burdensome and of little 

practical use to passengers who are not 

already aware of this regulation. Some 

foreign carriers objected to being 

required to have a copy of Part 382 at 

the foreign airports from which they fly 

to the U.S., on the grounds that the 

foreign jurisdictions have their own 

disability-related requirements for 

carriers serving them. Virtually all of 

them took the position that any 

passenger desiring a copy of Part 382 in 

an accessible format should obtain it 

from this Department rather than from 

a carrier. Some suggested that 

passengers should be made aware of 

Part 382 and its availability from the 

Department at the time of booking or at 

some other point before they actually go 

to the airport. One foreign carrier did 

not object to having a copy of Part 382 

available at airports in its home country 

from which it flies to the U.S., but it did 

object to any requirement that it also 

have copies available at third-country 

airports that could be the U.S. 

passenger’s origin or final destination. 

Another made a similar argument 

concerning airports that are endpoints 

of flights operated on a codeshare basis 

with a U.S. carrier. 

While we agree that carriers should 

make a print copy of the rule available, 

so that passengers can refer to it to assist 

them in resolving any problems that 

arise at the airport, the final rule will 

not require copies to be made available 

in other accessible formats, or in 

languages other than English. We also 

will not adopt the proposed requirement 

in § 382.45 that carriers provide 

information on the Department’s 

Disability Hotline service or its Aviation 

Consumer Protection Division to 

passengers with disability-related 

complaints or concerns. Such a 

requirement is not necessary here, as 

other sections of the rule require carriers 

to tell passengers of their right to 

contact the Department as part of the 

resolution of complaints (see 14 CFR 

382.153, 382.155). We agree with those 

commenters who suggest that access to 

Part 382 is most useful to consumers 

before they reach the airport. We are 

therefore requiring carriers to include 

notice on their Web sites that consumers 

can obtain a copy of Part 382 in 

accessible format from the Department 

and information on how this may be 

done. The performance requirement that 

carriers effectively communicate with 

passengers—which carriers can meet in 

a variety of ways—should be sufficient 

to ensure that passengers can use the 

regulatory information. Making a copy 

of the regulations available in an airport, 

for the cost of a photocopy, should not 

unduly burden carriers. 

Probably the most important proposal 

in this portion of the NPRM would 

require carriers and their agents to make 

their Web sites accessible to people with 

vision impairments and other 

disabilities. Web sites are an 

increasingly important way in which 

passengers get information about airline 

service and make reservations. Some 

carriers make discounts available to 

Web site users, or charge extra fees to 

persons who make reservations by other 

means. Disability community 

commenters strongly supported the 

proposed requirements. Many carriers 

and carrier organizations opposed it, 

primarily on the grounds that it would 

be too difficult and expensive to 

accomplish. Many of these comments 

said the Department had 

underestimated the cost of Web site 

accessibility. 

The Department continues to believe 

that Web site accessibility is extremely 

important to nondiscriminatory access 

to air travel for people with disabilities, 

and we note that many existing carrier 

Web sites provide a degree of 

accessibility. However, in order to 

obtain additional information about the 

costs and any technical issues involved, 

the Department is deferring final action 

on this proposal and seeking additional 

comment in the SNPRM that we are 

planning to issue. The preamble to the 

SNPRM will discuss comments on Web 

site accessibility and the issues they 

raise in greater detail. In the meantime, 

in order to comply with the general 

nondiscrimination requirement of Part 

382, carriers will be prohibited from 

charging fees, or not making Web fare 

discounts available, to passengers with 

disabilities who cannot use inaccessible 

Web sites and therefore must make 

phone or in-person reservations. 

TTY Use 

We proposed in the DHH NPRM to 

require carriers to ensure that the 

service and response times are equal for 

TTY information and reservation lines 

and non-TTY information and 

reservation lines, including the 

provision of a queue for the former if 

one is provided for the latter. (Since 

1990, U.S. carriers that offer telephone 

reservations and information service to 

the general public have been required 

by § 382.47 to offer TTY service as well.) 

TTY users should not be subject to 

longer wait times than other callers. We 

stated our belief that the cost to carriers 

of installing queuing features on their 

TTY lines would not be high. We 

solicited comments on this proposal. 

The individuals and disability 

organizations that commented on this 

issue mostly supported all of our 

proposals. The carriers and carrier 

associations that filed comments 

expressed strong reservations about our 

proposal. Some foreign carriers opposed 

TTY requirements on the grounds that 

TTY access is technically infeasible in 

many countries. Some opposed the 

requirement of a queuing system for 

TTY calls, claiming that such systems 

are in fact quite costly and that the 

expense is not justified given the low 

incidence and low frequency of TTY 

calls that they receive (i.e., no more than 

two to three calls per month). Some 

asserted that deaf and hard of hearing 

consumers are using the internet more 

and more to communicate with carriers 

and thus relying less and less on TTYs. 

Some opposed the requirement that 

response time for TTY users and other 

callers be ‘‘equivalent,’’ arguing that the 

delay inherent in typing text rather than 

speaking it makes equivalent response 

times physically impossible. 

The purpose of § 382.43 is to put deaf 

and hard of hearing passengers on a 

substantially equivalent footing with the 

rest of the public in their ability to 

communicate with carriers by telephone 

regarding information and reservations. 

We aim to ensure substantial 

equivalence in both access to any carrier 

and wait time if an agent is not available 

when a connection is first made. 


rwilkins on PROD1PC63 with RULES2
27638 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

Regarding access, both the comments 

and our own further investigations into 

voice relay services have persuaded us 

that we need not require carriers to 

make TTY service available per se. 

Instead, we are requiring only that 

carriers make their telephone 

reservation and information services 

available to individuals who use a TTY. 

Carriers may of course meet this 

requirement by using TTYs themselves, 

but they may also do so by means of 

voice relay or any other available 

technology that permits TTY users to 

communicate with them. This 

requirement is set forth in § 382.43(a). 

We are also adding a new access 

requirement in § 382.43(a)(4) to ensure 

that deaf and hard of hearing passengers 

are informed of how to reach carriers by 

TTY: in any medium in which a carrier 

states the telephone number of its 

information and reservation service for 

the general public, it must also state its 

TTY number if it has one, or if not, it 

must specify how TTY users can reach 

the information and reservation service 

(e.g., via voice relay service). Such 

media include, for example, Web sites, 

ticket jackets, telephone books, and 

print advertisements. 

Regarding wait time, the comments 

and our own experiments with voice 

relay systems have persuaded us not to 

require carriers that use TTYs to 

implement a queuing system for TTY 

calls even if they do maintain one for 

calls from the rest of the public. Calls 

from a TTY to a carrier via a voice relay 

service are treated exactly the same as 

calls from conventional telephones. If 

an agent is available to take the call, the 

caller is connected to the agent. If not, 

if the carrier has a queuing system the 

call goes into the queue along with nonTTY calls. (If the carrier does not have 

a queuing system, any caller gets a busy 

signal.) Therefore, a TTY caller who 

calls the carrier’s TTY number and gets 

a busy signal can hang up and 

immediately try the carrier’s general 

public number through a voice relay 

service, where all calls receive identical 

treatment. We consider the timing in 

this scenario to be ‘‘substantially 

equivalent’’ to the timing for the rest of 

the public, the extra call 

notwithstanding. We do not intend for 

‘‘substantially equivalent’’ to mean 

‘‘exactly the same.’’ As long as 

disparities in wait times between TTY 

users and the general public remain 

both low and infrequent, we will 

consider the treatment of these groups 

to be substantially equivalent. Of 

course, we can and will investigate 

allegations of routine or lengthy 

disparities and require corrective action 

where appropriate. 

We are concerned, moreover, that 

given the reportedly high cost of 

implementing a TTY queuing service 

vis-a ́-vis the reportedly low incidence of 

TTY calls, if we required queuing 

systems for TTYs, carriers that currently 

maintain TTYs might have an incentive 

to discontinue them, as this rule will 

permit them to do, and opt instead to 

offer access to TTY callers only via 

voice relay. We do not wish to create 

disincentives that may deprive those 

TTY users who may prefer calling 

another TTY directly rather than using 

voice relay of this option, especially 

when the record in this proceeding 

contains no evidence that the incidence 

of busy signals in TTY-to-TTY calls is 

high or even moderate. We would 

expect any carrier that operates TTY 

service and whose TTY callers 

experience a high incidence of busy 

signals to find some way of 

accommodating the TTY callers so as to 

avoid violating the ‘‘substantially 

equivalent’’ standard. For example, 

rather than acquire and maintain a 

queuing system, the carrier could allow 

a TTY caller who cannot be 

accommodated immediately to leave a 

message and then have an agent 

promptly return the call. 

In-Flight Audio and Video Services 

We proposed in the DHH NPRM to 

broaden the existing requirements for 

accommodating individuals who are 

deaf and hard of hearing that apply to 

video displays on aircraft. First, we 

proposed to require U.S. and foreign 

carriers to caption all safety and 

informational videos on aircraft within 

set periods of time. The current rule, 

§ 382.47(b), only requires that U.S. 

carriers make safety briefings on the 

aircraft that are presented by video 

accessible to persons who are deaf or 

hard of hearing, and it exempts cases 

where open captioning or an inset 

would interfere with the video 

presentation so as to render it 

ineffective or if the captioning or inset 

would itself be unreadable. The 

proposed rule, applicable to foreign 

carriers as well, would eliminate the 

exemption, require high-contrast 

captioning of informational videos as 

well as safety videos, require 

compliance for safety videos within 180 

days of the rule’s effective date, and 

require compliance for informational 

videos within an additional 60 days. 

Until the new rule’s compliance dates, 

U.S. carriers would remain bound by 

the provisions of the existing rule. We 

solicited comment on the elimination of 

the exemption clause, on extending the 

captioning requirement to informational 

displays, and on the technical feasibility 

of captioning all safety and 

informational videos, DVDs, and other 

audio-visual displays in such a way that 

they will still be useful to individuals 

without hearing disabilities. We also 

solicited comment on the proposed 

timetable. 

Second, we proposed to require U.S. 

and foreign carriers to provide highcontrast captioning on entertainment 

videos, DVDs, and other audio-visual 

displays on new aircraft, or aircraft 

ordered after the rule’s effective date or 

delivered more than two years after that 

date. Aircraft on which the audio-visual 

machinery is replaced after that date 

would also be considered new for 

purposes of § 382.69. We did not 

propose requiring the captioning of 

entertainment videos on existing 

aircraft, believing that the costs of such 

a requirement would exceed the benefits 

that would follow. We solicited 

comment on the costs and feasibility of 

both modifying and replacing 

equipment on existing aircraft and 

complying with the proposed rule with 

new aircraft. 

The carriers and carrier groups that 

filed comments generally objected to the 

proposals. RAA opposes requiring 

videos on existing aircraft to be 

captioned, contending that the costs of 

modification would greatly exceed any 

potential benefits. One foreign carrier 

contended that this provision should 

not apply to foreign carriers. Some 

faulted the Department for not 

distinguishing between English and 

non-English products and maintained 

that the latter should be excluded from 

any captioning requirement. Some 

carriers argued that the exact content of 

any safety briefing provided by video 

can always be found in print in each 

seat pocket and maintain that the 

content of informational videos can be 

found in print both in seat pockets and 

elsewhere in the cabin. Most if not all 

carriers and carrier groups objected to 

allowing less time for compliance with 

the safety-video requirement than with 

the requirement for informational 

videos; some maintained that rather 

than a specific deadline, carriers should 

be permitted to comply if and when 

they replace video equipment in the 

normal course of operating the aircraft. 

Some claimed to have no control over 

the content of informational videos 

provided by third parties. Some 

opposed the requirement that 

captioning be high-contrast—i.e., white 

letters on a consistent black background. 

Several commenters called for retention 

of the current rule’s exemption for 

captioning a safety video when the 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27639 

captioning or inset would render the 

video ineffective. 

All of the carriers and carrier groups 

opposed requiring captioning for all inflight entertainment, advancing several 

arguments: With existing technology, 

the costs and difficulties of compliance 

are prohibitive; for overhead screens, 

the size of captioning relative to the size 

of the screen would degrade the 

entertainment value of the video 

presentation for all passengers; on 

individual seat screens, current 

technology and cost do not permit the 

installation of systems that would let 

individual passengers choose whether 

to caption individual programs; 

captioning of all entertainment videos, 

regardless of what type of screen the 

aircraft features, is too costly and would 

increase the price of air transportation; 

in-flight entertainment is beyond the 

Department’s jurisdiction to regulate, as 

it does not come within the purview of 

access to air transportation; film owners’

restrictions on DVDs could make 

compliance impractical to impossible; 

in some cases, government censorship 

could make compliance illegal; the 

proposal does not specify whether or 

not captioning would be required in 

languages other than English, which 

would increase the costs and difficulties 

of complying. Many carriers endorsed 

the comments of the World Airline 

Entertainment Association (‘‘WAEA’’), 

which are summarized below, and many 

called for inclusion in any provision 

adopted of an exemption like the one in 

the current rule for safety videos—i.e., 

for cases where captioning would 

interfere with the video presentation so 

as to render it ineffective or if the 

captioning would itself be unreadable. 

The individuals and disability 

organizations that filed comments 

unanimously supported the proposed 

rule except insofar as they believed the 

compliance dates to be too far in the 

future. None of these commenters 

addressed the costs or difficulties of 

achieving compliance. 

The WGBH Educational Foundation’s 

National Center for Accessible Media 

(‘‘the Center’’), which reported that it is 

conducting a study on ways of making 

airline travel more accessible to 

passengers with sensory disabilities, 

filed comments on this proposal. The 

Center maintained that all safety videos 

are already being captioned and that 

pre-recorded informational videos are 

readily captionable, thus making the 

existing exemption unnecessary. It 

maintained that due to current 

technologies, the rule need not specify 

white letters on a black background to 

ensure that captions can be read, and 

given the number of production 

techniques available, a requirement that 

displayed text be ‘‘legible’’ or 

‘‘readable’’ should suffice. The Center 

stated that the next generation of inflight entertainment (‘‘IFE’’) systems can 

be designed to accommodate captioning 

in various ways and that it is advances 

in these systems, not new aircraft, that 

will make captions readily available. It 

therefore recommended that the rule be 

tied to changes in IFE systems and not 

the purchase or modification of aircraft. 

Further, the Center reported that 

captioning on next-generation IFE 

systems is a work in progress based on 

new means of sending video signals 

through the aircraft cabin. Caption data 

for broadcast and cable television, it 

stated, are incompatible with the digital 

signals being routed to seat screens in 

the newest IFE systems, and while the 

transformation of these data for use on 

in-flight systems can be developed, the 

process is not yet automatic, nor is it 

trivial. A further complication, 

according to the Center, lies in the 

variety in types of video signals being 

provided in-flight. The Center stated 

that despite the small size of seat 

screens, properly rendered captions can 

be as effective on these screens as they 

are on home television sets. It reported 

that the portable IFE systems that some 

carriers use as alternatives to installed 

systems—for example, DVD players or 

hard disks—can accommodate closed 

captions as readily as installed systems 

can. 

As mentioned above, the comments 

filed by WAEA were endorsed by many 

of the carriers. WAEA stated that its 

members include both airlines and 

suppliers to the IFE industry, the latter 

including aircraft manufacturers, major 

electronics manufacturers, motion 

picture studios, audio/video postproduction labs, broadcast networks, 

licensing bodies, communications 

providers, and others, worldwide. 

WAEA took the position that some of 

the proposed captioning requirements 

and implementation timelines would 

impose undue and unacceptable 

financial burdens on the carriers and 

that some of the requirements are not 

even technologically or operationally 

feasible given the following: technical 

limitations of both old and new IFE 

systems, variations among proprietary 

IFE systems currently in service and 

being installed, limited space for and 

readability of captioning on both seat 

screens and on more distant communal 

screens, the intrusion factor of open 

captions for passengers without a 

sensory disability, limited cabin-server 

storage for additional captioned video 

files to complement up to eight 

languages offered onboard, and lengthy 

aircraft retrofit and fleet order cycles 

and IFE system design and certification 

timelines. 

Among other things, WAEA agreed 

with the Center that the implementation 

of the proposed new requirements 

should be tied to IFE system 

development and not the aircraft. Given 

the limitations of video files that may be 

available on the aircraft, WAEA 

contended that the rule should apply 

only to English-language videos and 

only to entertainment videos exhibited 

‘‘while in United States territory.’’

WAEA reported that current IFE 

systems are typically based on 

proprietary rather than standard 

architectures and technologies and that 

they were not designed to accommodate 

broadcast closed-captioning signals and 

technologies. Given the limitations of 

IFE screens in terms of their size and 

distance from the viewer, WAEA 

opposed the requirement that 

captioning be white letters on a black 

background and supported instead the 

choice of using the same process as 

subtitling, which, it said, provides 

readable characters while keeping most 

of the picture visible and poses fewer 

risks of copyright infringement. 

Based on the comments, we have 

made several changes to the final rule. 

We are retaining the requirement that 

safety and informational audio-visual 

displays played on the aircraft be highcontrast captioned, but we have revised 

the definition of that term to permit the 

use of captioning that is at least as easy 

to read as white letters on a consistent 

black background. The requirement will 

not apply, however, to informational 

videos that were not created under the 

carrier’s control. The captioning need 

only be in the predominant language or 

languages in which the carrier 

communicates with passengers on the 

flight. If the carrier makes 

announcements both in English and 

another language, captions must be in 

both languages. We are retaining the 

compliance dates set forth in the DHH 

NPRM, based among other things on the 

Center’s report that all safety videos are 

already being captioned and that prerecorded informational videos can be 

captioned readily. This report also 

undercuts the carriers’ arguments for 

retaining the current rule’s exemption 

for cases in which captioning would 

interfere with the video presentation so 

as to render it ineffective or would itself 

be unreadable. 

We have reluctantly concluded, 

though, that we cannot adopt a 

regulation governing entertainment 

displays at this time. We reject the 

contention that access to in-flight 


rwilkins on PROD1PC63 with RULES2
27640 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

entertainment falls outside the scope of 

the Air Carrier Access Act of 1986, as 

amended, and that we therefore have no 

authority to regulate IFE. Remedial 

statutes such as the ACAA are properly 

construed broadly, for the benefit of the 

protected class, as we have consistently 

done via Part 382. (See, e.g., § 382.1 and 

§ 382.11–13 [formerly § 382.7].) No 

party challenging our jurisdiction over 

IFE has provided any support for its 

position. 

Notwithstanding our authority to 

regulate, however, the record in this 

proceeding does not provide a basis for 

adopting a captioning requirement for 

IFE at present. We cannot conclude on 

the basis of the comments that 

providing high-contrast captioning for 

entertainment displays is technically 

and economically feasible now, nor can 

we ascertain a date by which it most 

likely will be. Therefore, we will shortly 

be issuing an SNPRM to call for more 

current and more complete information 

on the cost and feasibility of providing 

high-contrast captioning for 

entertainment displays, information not 

only on current technology but also on 

the nature and pace of technological 

developments. Regarding the latter, we 

are aware that on March 6, 2007, after 

the conclusion of the period for 

commenting on the DHH NPRM. 

WAEA’s Board of Directors adopted a 

new specification as part of an ongoing 

effort to establish a standard digital 

content delivery system for IFE. This 

new specification reflects progress 

toward development of a common 

methodology for delivering digital 

content and greater interoperability for 

in-flight entertainment systems. 

Other Information for Individuals With 

Hearing or Vision Impairments 

We proposed in the DHH NPRM to 

require carriers to provide the same 

information to deaf, hard of hearing, and 

deaf-blind individuals in airport 

terminals that they provide to other 

members of the public. We proposed 

that they must provide this information 

promptly when such individuals 

identify themselves as needing visual or 

auditory assistance, or both. The 

proposed rule set forth the following 

non-exhaustive list of covered topics: 

flight safety, ticketing, flight check-in, 

flight delays or cancellations, schedule 

changes, boarding, the checking and 

claiming of baggage, the solicitation of 

volunteers on oversold flights (e.g., 

offers of compensation for surrendering 

a reservation), individuals being paged 

by airlines, aircraft changes that affect 

the travel of persons with disabilities, 

and emergencies (e.g., fire, bomb threat). 

We proposed that the rule apply to U.S. 

carriers at each gate, baggage claim area, 

ticketing area, or other terminal facility 

that they own, lease, or control at any 

U.S. or foreign airport. The proposed 

rule would apply to foreign carriers at 

gates, baggage claim areas, ticketing 

areas, or other terminal facilities that 

they own, lease, or control at any U.S. 

airport and at terminal facilities of 

foreign airports that serve flights 

beginning or ending in the U.S. (We 

inadvertently neglected to include the 

phrase ‘‘that they own, lease, or control’’

in the NPRM regulatory text on foreign 

carriers at foreign airports.) 

We explained in the DHH NPRM that 

we were proposing a performance 

standard, namely ‘‘prompt,’’ rather than 

requiring carriers to use a particular 

medium (e.g., LCD screens, wireless 

pagers, erasable boards, or handwritten 

notes) to allow carriers to design their 

own compliance plans in a manner that 

best suits their needs and serves their 

passengers. We solicited comment on 

whether the term ‘‘prompt,’’ which we 

believe to be a higher standard than 

‘‘timely,’’ is sufficiently specific. We 

also stated our concern that methods of 

communicating with deaf-blind 

individuals may not be readily 

available. We did not propose to require 

carriers to use any of the following 

methods: using a finger to trace block 

letters on the deaf-blind individual’s 

palm or forearm, using an index card 

with raised letters, with the 

communicator placing the deaf-blind 

individual’s index finger on each word’s 

letters in sequence, or tactile signing or 

finger spelling where the deaf-blind 

individual places his or her hands on 

top of the signer’s hands to feel the 

shape of the signs. We solicited 

comment on other less specialized 

methods of communicating with deafblind individuals and on whether, if 

none exists, we should limit the 

promptness requirement to individuals 

with vision or hearing impairments but 

not to apply it to an individual who has 

both of these disabilities. 

The carriers and carrier groups that 

filed comments all supported the 

requirement that passengers needing 

special transmission of this information 

identify themselves to carrier personnel. 

Most asked the Department to use 

‘‘timely’’ as a standard rather than 

‘‘prompt.’’ Some complain that any such 

standard is too subjective to provide 

effective guidance. One carrier 

suggested that the emphasis should be 

not on how swiftly carriers can transmit 

the information to the disabled 

passenger but on when the passenger 

needs to have it. Carriers shared 

considerable concern over the costs of 

compliance, both in terms of having 

personnel available at all of the areas 

listed in the proposal and in terms of 

potential technical solutions. One 

carrier opposed making the 

requirements applicable at foreign 

airports, arguing that foreign carriers are 

not likely to have the leverage they 

would need to comply. Several 

contended that the cost estimates in the 

initial Regulatory Evaluation were 

unrealistically low. Some proposed 

limiting the required ‘‘promptness’’ to 

individuals with either hearing or visual 

impairment, not both, who are traveling 

without a companion; one stated that it 

communicates the information at issue 

here to deaf-blind passengers through 

their traveling companions. Some 

objected to the list of types of 

information that must be provided 

promptly. (The list represents an 

expansion of the list in the existing rule, 

14 CFR 382.45(c), which up to this time 

has applied only to U.S. carriers, and 

which is explicitly not exhaustive.) One 

U.S. carrier association was particularly 

concerned about the financial burdens 

that it assumes the rule would impose 

on its regional-airline members. It 

asserted that adoption of much of the 

technology discussed in the proposal is 

impossible at small airports and states 

that in any case its members report very 

few deaf-blind passengers flying from 

these airports. The costs of compliance, 

it contended, far exceed any putative 

benefits and could result in the 

reduction or even elimination of service. 

The individuals and disability 

organizations that filed comments had a 

very different perspective. Most of these 

commenters objected to the requirement 

of self-identification. Many took the 

position that carriers should have 

reliable methods in place for conveying 

information to all passengers at all 

times. Several supported requiring 

simultaneous visual transmission of any 

information disseminated over a public 

address system. Some related that in the 

past self-identification has failed to 

result in this type of information’s being 

transmitted at all, much less ‘‘promptly’’

or even in a ‘‘timely’’ manner. 

Based on the comments, we have 

made several changes to the proposal in 

the final rule. First, we are adding the 

language that we inadvertently omitted 

in the proposed rule to limit the 

requirements for foreign carriers at 

foreign airports to areas that these 

carriers own, lease, or control. Second, 

we have determined that it is not 

appropriate at this time to require 

carriers to provide the information 

covered in § 382.53 to deaf-blind 

passengers. The information at issue is 

constantly changing, and we know of no 

methods of communicating with deafVerDate Aug<31>2005 16:54 May 12, 2008 Jkt 214001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\13MYR2.SGM 13MYR2

rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27641 

blind individuals that allow for prompt 

transmission of the information and do 

not require highly specialized training. 

We do encourage members of the public 

to petition the Department for a 

rulemaking to amend this rule in the 

future if and when technology becomes 

available that would permit the prompt 

and efficient transmission of the 

covered information to deaf-blind 

individuals. We also encourage carriers 

to acquire and use such technology on 

their own initiative. 

Third, we have determined that the 

costs of requiring prompt transmission 

of the covered information at all of the 

terminal areas listed in the DHH NPRM 

exceed the benefits. We are therefore 

limiting the requirement to gates, 

ticketing areas, and customer service 

desks. For purposes of the rule, a 

customer service desk is a location in 

the terminal that a carrier dedicates to 

addressing customer problems that are 

not addressed at the gate or the ticket 

counter, most commonly the rerouting 

of passengers affected by a delayed or 

canceled flight. Fourth, we are adding a 

provision for information about baggage. 

This information must be transmitted to 

passengers who have identified 

themselves as having hearing or vision 

impairment no later than the time that 

it is transmitted to the other passengers. 

For example, assuming that information 

on collection of baggage is given to 

arriving passengers at the baggage claim 

area, carriers can comply with this rule 

by giving the information to selfidentifying passengers before the 

others—e.g., onboard the flight or at the 

gate—or at the baggage claim area at the 

same time as the others. Fifth, as in the 

case of § 382.51, in cases where a U.S. 

airport has actual control over the gates, 

ticketing areas, and customer service 

desks, we are making the airport and the 

carrier jointly responsible. 

We are retaining the selfidentification requirement, because we 

believe that requiring simultaneous 

visual transmission of the information 

along with each and every publicaddress announcement would saddle 

carriers with undue costs. In this regard, 

passengers with impaired hearing or 

vision must identify themselves to 

carrier personnel at the gate area or the 

customer service desk even if they have 

already done so at the ticketing area. 

We are also retaining the ‘‘prompt’’

standard. It requires carriers to provide 

the information to self-identifying 

passengers with hearing or vision 

impairment as close as possible to the 

time that the information is transmitted 

to the general public. For example, 

when gate agents announce a flight 

cancellation or gate change, if they 

provide the information to selfidentifying passengers with impaired 

hearing or vision either immediately 

before or immediately after they make a 

general announcement, the carrier will 

be complying with § 382.53. If a gate 

change is announced fifteen minutes 

before a scheduled departure but the 

gate agents do not provide effective 

notice to a passenger with impaired 

hearing until it is too late for that 

individual to reach the gate in time to 

board, or if they delay providing the 

information long enough that the 

individual reasonably believes that he 

or she will probably miss the flight, the 

carrier is violating the rule. The rule 

requires that carrier personnel notify a 

self-identifying passenger with impaired 

hearing that he or she has been paged 

immediately after making the 

announcement over a public address 

system unless the same information is 

displayed visually on a screen. If a flight 

is oversold and the carrier is soliciting 

volunteers to relinquish their seats in 

exchange for compensation, to comply 

with this rule carrier personnel must 

notify self-identifying passengers with 

impaired hearing or vision in time for 

them to take advantage of the offer—i.e., 

well before the quota has been filled by 

other volunteers. The rule does not 

require carriers to provide a sign 

language interpreter in the gate area or 

elsewhere to ensure that a deaf 

passenger receives all pertinent 

information simultaneously with other 

passengers. 

As for passengers with impaired 

vision, for example, the rule requires 

carriers to notify a visually impaired 

passenger orally where his or her 

baggage can be claimed if the 

information is otherwise only posted on 

visual displays, and the notification 

must take place no later than the 

posting. At the time when a visually 

impaired passenger identifies himself or 

herself to an agent at the gate, the rule 

requires the agent to notify him or her 

of any change that has occurred that 

affects his or her itinerary even if the 

change has already been announced and 

is now posted on a screen. If a gate 

change is posted on the screen but not 

announced orally, as soon as possible 

after the posting a gate agent must notify 

any passenger who has identified 

himself or herself as having impaired 

vision. 

We are retaining the entire list of 

types of information that carriers must 

provide even though it contains more 

items than the list in the current rule. 

In our view, since the list in the current 

rule is expressly non-exhaustive, the 

new items on the list in this section 

were never excluded obligations. 

Having them explicitly stated informs 

the carriers more effectively of their 

responsibilities. 

In the DHH NPRM, we proposed a 

somewhat similar requirement for 

providing information aboard aircraft to 

the proposed requirements pertaining to 

information in airport terminals. U.S. 

and foreign carriers would be required, 

upon request, to provide deaf, hard of 

hearing, and deaf-blind individuals with 

the same information provided to other 

passengers in a prompt manner. We 

again proposed a non-exhaustive list of 

types of information to be covered by 

the rule: flight safety, procedures for 

take-off or landing, flight delays, 

schedule or aircraft changes that affect 

the travel of persons with disabilities, 

diversion to a different airport, 

scheduled departure and arrival times, 

boarding information, weather 

conditions, beverage and menu 

information, connecting gate 

assignments, baggage claim, individuals 

being paged by airlines, and 

emergencies (e.g., fire or bomb threat). 

The proposal differs from the current 

rule in that it changes the timing 

requirement from ‘‘timely’’ to ‘‘prompt’’

and expands the current rule’s list, also 

non-exhaustive, of covered types of 

information. We solicited comment on 

whether the change from ‘‘timely’’ to 

‘‘prompt’’ is appropriate for providing 

information aboard the aircraft and on 

the proposed new list. 

The carriers and carrier groups that 

filed comments generally objected to the 

proposal as too broad and too 

prescriptive, particularly the expanded 

list of types of information for which 

accommodation would be required. The 

Air Transport Association of America 

(‘‘ATA’’) argued that the expanded list 

would create a tension between crew 

members’ obligations to provide 

information to disabled passengers and 

their duties related to safety and 

concluded that if busy crew members 

are further burdened with having to 

transcribe every in-flight announcement 

for passengers with impaired hearing, 

only safety announcements mandated 

by the FAA will be made. Such a result, 

according to ATA, would work to the 

detriment of all passengers and 

constitute an undue burden not required 

by the ACAA. ATA proposed limiting 

the covered information to critical flight 

and safety information. Some 

commenters contended that they (or 

their members) already give passengers 

with hearing or vision impairment the 

same relevant information that they 

announce aloud. The International Air 

Transport Association (‘‘IATA’’) 

contended that the proposal would not 

allow carriers enough flexibility to make 


rwilkins on PROD1PC63 with RULES2
27642 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

individual assessments and that 

compliance would require retraining of 

all staff, redrafting of training manuals, 

and dramatic changes in procedures at 

high cost to the carriers and with little 

benefit to passengers. Some carriers took 

the position that individuals who are 

not capable of communicating with the 

flight crew orally or in writing should 

be required to travel with a companion 

who can establish communication. RAA 

characterized the scope of information 

in the proposed list as excessive and 

maintained that the ‘‘prompt’’ standard 

should only apply to information about 

flight safety procedures for take-off or 

landing. RAA said that 80 percent of 

airplanes operated by regional carriers 

either have only one flight attendant or 

none at all. 

The individuals and disability 

organizations that filed comments 

unanimously supported the proposed 

rule, including the expanded list of 

topics. Most objected to the requirement 

that individuals with hearing 

impairments identify themselves to the 

carrier and request accommodation. 

Most supported a requirement that all 

oral announcements made aboard the 

aircraft be simultaneously transmitted 

visually; some claimed that in practice, 

sporadic requests for accommodation 

are not honored. 

With minor clarifying changes to the 

language of the proposed rule, we are 

adopting its substance as proposed. As 

with § 382.53, however, we have 

determined that it is not appropriate at 

this time to require carriers to provide 

the information covered in § 382.119 to 

deaf-blind passengers. As stated above, 

the information is constantly changing, 

and we know of no methods of 

communicating with deaf-blind 

individuals that allow for prompt 

transmission of information and do not 

require highly specialized training. Also 

as with § 382.53, we encourage members 

of the public to petition the Department 

for a rulemaking to amend this rule if 

and when technology becomes available 

that would permit the prompt and 

efficient transmission of the information 

to deaf-blind individuals. 

We are also following our approach in 

§ 382.53 with regard to maintaining the 

self-identification requirement, the 

standard of promptness, and the list of 

types of information that the rule 

covers. Here, as there, we believe that at 

this time, requiring simultaneous visual 

transmission of the information along 

with every spoken announcement 

would saddle the carriers with undue 

costs. Here, as there, carriers must 

provide the information to selfidentifying passengers with hearing or 

vision impairment as close as possible 

to the time that the information is 

announced aloud. Here, as there, 

expanding the list in the current rule 

does not impose additional 

requirements on U.S. carriers, because 

the current rule’s list is explicitly nonexhaustive and would thus cover the 

items added here. Specifying our 

expectation informs the carriers more 

completely of what the rule 

encompasses. 

Finally, the carriers’ concerns that 

compliance with the requirements of 

section 382.119 could keep their flight 

crews from performing their duties 

related to safety are misplaced. The rule 

expressly relieves the crew from 

complying when this would interfere 

with their safety duties under FAA and 

foreign regulations. There is similar 

language in § 382.53, though, given the 

duties of such personnel as gate agents, 

ticket agents, and baggage claim 

personnel, the likelihood of any conflict 

between normal duties and legallymandated safety duties is probably 

lower than in the air crew context, 

outside, perhaps of an unusual 

emergency situation. 

Training 

The Foreign Carriers NPRM proposed 

that carriers operating aircraft with 19 or 

more passenger seats must train its 

personnel to proficiency concerning 

ACAA requirements and providing 

services to passengers with disabilities. 

One element of the carrier’s training 

efforts would be to consult with 

organizations representing persons with 

disabilities in developing training 

programs. Refresher training to maintain 

proficiency would also be required. 

Complaints resolution officials (CROs) 

would have to be trained in their duties 

by the effective date of the rule. 

Training for current employees would 

generally have to be accomplished 

within one year. New crewmembers 

would have to be trained before starting 

their duties, and other new employees 

would have to be trained within 60 days 

of starting their duties. For foreign 

carriers, training requirements would 

apply only to employees who are 

involved with flights to and from U.S. 

points. Carriers would incorporate 

procedures implementing Part 382 

requirements into their manuals, but 

they would not need to submit these 

materials or a certification of 

compliance to DOT for review. 

Disability community commenters 

generally supported the proposed 

training requirements, though several 

said that U.S. carriers were not 

providing adequate training. Some 

commenters said that they had rarely, if 

ever, encountered carrier personnel 

who, when asked, recalled getting 

ACAA training. Some of these 

commenters, as well as some carriers, 

asked for a stronger DOT role in 

providing training (e.g., preparing a 

training curriculum, developing training 

materials, or providing funding for 

training). One association representing 

foreign carriers suggested a forum at 

which carriers and the Department 

could discuss implementation issues 

before the effective date of the rule. 

Some foreign carriers mentioned that 

they already had disability-related 

training programs for their employees, 

and suggested that these programs 

should be recognized as equivalent to 

the proposed requirements. A few 

foreign carriers said that the proposed 

training time frames were too short. 

Other foreign carriers objected to 

training their employees to meet U.S. 

requirements, since they already trained 

their personnel to meet applicable 

requirements of their home countries. 

Several of these commenters 

particularly objected to consulting with 

disability groups, some suggesting that 

the requirement should be waived if 

they could not find a local disability 

group to consult. (Disability groups 

expressed different views on this point, 

most suggesting such a waiver was 

unnecessary because the U.S.-based staff 

of the airline could consult with U.S. 

groups if necessary, while another group 

suggested such a waiver could be 

acceptable if the carrier showed it had 

made good faith efforts to consult.) An 

association of U.S. carriers cautioned 

that any waiver available to foreign 

carriers should also be available to U.S. 

carriers. 

The Department regards thorough 

training of carrier personnel who 

interact with passengers with 

disabilities as vital to good service to 

those passengers and to compliance 

with the ACAA. We recognize that 

many foreign carriers already have 

disability-related training programs. 

Since specific ACAA requirements do 

not yet apply to these carriers, it is very 

likely that these training programs 

would need to be amended, for those 

personnel who serve flights to and from 

the U.S., in order to ensure that the 

personnel understand ACAA 

requirements. Personnel serving U.S.- 

related flights would not have to be 

retrained from scratch, only provided 

additional training on ACAA-specific 

matters. To respond to concerns about 

the time it would take to train 

employees, the final rule provides 

foreign carriers a year from the effective 

date of the rule to complete the process. 

Since there will be a year between 

publication of the final and its effective 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27643 

date, any carriers still concerned about 

the length of training time frames can 

get a head start by beginning to train 

employees during the year prior to the 

effective date. 

While U.S. disability groups can 

undoubtedly be a useful resource for 

both U.S. and foreign carriers, we do not 

believe it would be realistic to require 

foreign carriers to seek out U.S. 

disability groups for consultation (in 

many cases, U.S.-based personnel of 

these carriers would be operations staff, 

not management and training officials). 

Consequently, we have modified the 

language of this provision to refer to 

seeking disability groups in the home 

country of the airline. If home country 

disability groups are not available, a 

carrier could consult individuals with 

disabilities or international 

organizations representing individuals 

with disabilities. We do not believe that 

a waiver provision is needed, since it is 

unlikely that a carrier would be 

completely unable to find anyone—

home country or international disability 

groups, individuals with disabilities—

with whom to consult. As a matter of 

enforcement policy, however, the 

Department would take into 

consideration a situation in which a 

carrier with an otherwise satisfactory 

training program documented it had 

made good faith efforts to consult but 

was unable to find anyone with whom 

to consult. 

The Department has posted a model 

training program based on the current 

Part 382 at http:// 

airconsumer.ost.dot.gov/training/ 

index.htm, and we will consider 

whether it would be useful to produce 

additional training materials. Our staff 

have long experience in working with 

carriers on training and compliance 

issues, and they will continue to work 

with both U.S. and foreign carriers on 

training-related issues. We believe the 

idea of one or more forums to discuss 

implementation issues in the interval 

between the publication and effective 

dates of the rule is a good one, and we 

are now planning to hold such a 

meeting in June 2008. 

We understand the concern of 

disability group commenters that some 

carrier personnel do not seem to have 

been trained to proficiency or at all. In 

an industry environment in which there 

is considerable personnel turbulence, 

carriers and the Department must both 

be vigilant to ensure that training takes 

place as required. 

Because of the concern that some 

carrier employees may not be current in 

their knowledge of ACAA requirements, 

the final rule will require refresher 

training at least every three years. 

Carriers will have to develop a program 

for this purpose. Refresher training is 

intended to assist employees in 

maintaining proficiency, both by 

reminding them of ACAA requirements 

and their carriers’ procedures for 

implementing them and by providing 

updated information about new 

developments, additional guidance etc. 

While the Department will not require 

such programs to be submitted for 

approval, carriers will be required to 

retain records concerning both initial 

and refresher training, including the 

instructional materials and individual 

employee training records, for three 

years. These records will be subject to 

inspection by the Department. 

We also think that it is important to 

understand the relationship between 

compliance with the ‘‘trained to 

proficiency’’ requirement and 

compliance with other provisions of the 

rule. In the Department’s view, a pattern 

or practice by a carrier of 

noncompliance with operational 

provisions of the ACAA rule (e.g., 

wheelchair stowage in the cabin, 

boarding or connecting assistance) may 

reveal that the carrier’s personnel have 

not been trained to proficiency with 

respect to the provision in question. 

Training to proficiency seems 

inconsistent, on its face, with systemic 

mistakes in providing required 

accommodations. Consequently, where 

the Department sees widespread 

implementation problems, our staff may 

also examine the adequacy of the 

carrier’s training, and we may take 

enforcement action and require 

corrective action in the carrier’s training 

activities. 

Carriers generally supported the 

proposal to not require submission of 

material in manuals and procedures to 

DOT for review. The Department 

believes, based on the experience of 

reviewing carrier submissions at the 

time the original Part 382 went into 

effect, that mandating such submissions 

is not productive, so we will not impose 

such a requirement. Some disability 

community commenters supported the 

idea of submitting certificates of 

compliance. However, the Department 

believes that doing so would result in 

increasing information collection 

burdens without giving the Department 

a significant additional amount of 

information about carriers’ actual 

compliance status. We believe it is 

sufficient for the Department to be able 

to review materials carriers have on file 

as part of our compliance and 

enforcement process. 

In the DHH NPRM, we proposed to 

require carriers to train their employees 

to recognize the requests for 

communication accommodation by 

passengers with impaired vision or 

hearing and to use the most common 

methods that are readily available for 

communicating with these passengers. 

The required training would be for 

proficiency in basic visual and auditory 

methods for communicating with 

passengers whose disabilities affect 

communication. We explained that we 

were not proposing to require carriers to 

train their employees to use sign 

language. Rather, employees would be 

trained in methods that are readily 

mastered and of which one or more can 

be used as required to communicate 

with an individual who is deaf or hard 

of hearing (e.g., handwritten notes). We 

solicited comment on whether the terms 

‘‘common methods’’ and ‘‘readily 

available’’ give carriers sufficient 

guidance for complying fully with this 

training requirement. We also solicited 

comment on what kind of training 

would meet the requirement and on the 

effect, feasibility, and necessity of 

expanding the proposal to require that 

employees also be trained to 

communicate with deaf-blind 

individuals. 

The carriers and carrier associations 

that filed comments generally 

characterized the proposed 

requirements as far too vague and 

potentially too costly. Most objected to 

requiring training for all personnel and 

contractors that deal with the traveling 

public. One carrier suggested that a 

better approach would be to train all 

personnel to better awareness of 

communications needs and give carriers 

discretion to choose how to satisfy those 

needs—for example, by ensuring that 

proficient communicators can be made 

available on short notice. Foreign 

carriers generally argued that any 

training requirement should only apply 

to their employees in the United States. 

One carrier association noted that a 

person without training would naturally 

resort to writing to communicate with a 

deaf person and wondered what more 

would be taught in formal training. One 

carrier questioned the existence of 

universally established or 

internationally accepted methods in 

which to train carrier personnel. RAA 

asked that training requirements not 

apply to aircraft carrying 30 or fewer 

passengers and that training to 

communicate with deaf-blind 

individuals not be required. 

The individuals and disability 

organizations that filed comments all 

supported training requirements. One 

organization argued that training in sign 

language should be required as well as 

training in how to operate any 

technology used to provide visual 


rwilkins on PROD1PC63 with RULES2
27644 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

access—for example, captioning 

controls on video monitors or LCD 

terminals. One individual called for 

carrier personnel to be trained in how 

to handle people with service or guide 

dogs, including not to pet or feed the 

dogs. One organization maintained that 

trainers of carrier personnel should be 

individuals with hearing loss and that 

they should focus on imparting an 

understanding of the barriers that deaf, 

hard of hearing, and deaf-blind 

passengers face. This organization also 

suggested that effective communication 

might involve visual communication, 

appropriate seating arrangements, 

lighting to ensure a clear line of sight to 

visual information displays, and 

attention-getting techniques such as 

gentle tapping on the shoulder. 

In the final rule, we are retaining the 

proposed training requirement with 

some clarification and one addition. 

Carriers must train those employees 

who come into contact with passengers 

whose hearing or vision is impaired or 

who are deaf-blind both to recognize 

these passengers’ requests for 

accommodation in communicating and 

to communicate with these passengers 

in ways that are common and readily 

available. For example, employees 

should be able to communicate with 

passengers whose hearing or vision is 

impaired via written notes or clear 

enunciation, respectively. We are 

adding a requirement that the training 

also cover deaf-blind passengers. 

Examples of communication 

accommodations for the latter include 

passing out Braille cards (which this 

rule does not require), reading any 

information sheet that a passenger 

provides, and communicating with the 

passenger through an interpreter. Given 

that what we are requiring is fairly 

rudimentary, the training costs should 

not be high, nor should compliance 

otherwise be burdensome. 

Complaints 

Like the existing rule, the Foreign 

Carriers NPRM emphasized the role of 

CROs. These are individuals trained to 

be the carrier’s experts in ensuring that 

carrier personnel correctly implement 

ACAA requirements and that problems 

of passengers with disabilities are 

resolved in a way that is consistent with 

Part 382. The purpose of having a CRO 

is to resolve passengers’ problems as 

quickly as possible, without resort to 

formal DOT enforcement procedures 

and, we hope, in many cases, before a 

violation occurs. 

Under the Foreign Carriers NPRM, 

there would have to be a CRO available 

to passengers with disabilities at every 

airport the U.S. carrier serves and at 

every airport where a foreign carrier 

operates a flight to or from the U.S., 

whether in person or by phone. Carrier 

personnel would have to refer a 

passenger with a disability-related 

complaint or problem to a CRO. The 

Foreign Carriers NPRM also would tell 

carriers to provide the number of the 

DOT Disability Hotline to such 

passengers. CROs have the authority to 

direct other carrier personnel (except 

pilots-in-command with respect to 

safety matters) to take actions to resolve 

problems so as to comply with the 

ACAA. Carriers and CROs would have 

to respond to consumer complaints in a 

timely manner. 

Disability community comments 

generally supported the proposed rule, 

though some comments suggested that 

CROs and carriers should have to 

respond faster to consumer complaints 

than the Foreign Carriers NPRM 

proposed. Some carriers, on the other 

hand, thought that the time frames in 

the Foreign Carriers NPRM were too 

short, especially if a lengthy 

investigation were needed in order to 

respond. Disability community 

commenters also strongly supported the 

proposal to direct carriers to refer 

passengers who raise disability-related 

issues to a CRO, since many individuals 

may not know about the availability of 

CROs otherwise. 

A number of carriers said that they 

thought that having CROs available to 

passengers at every airport was not costeffective and that existing customer 

service offices could meet the need. One 

foreign carrier thought that its personnel 

could not be successfully trained to 

carry out the CRO role. Some carriers 

thought that they should not have to 

refer passengers to the DOT Hotline, 

saying that this would undermine the 

purpose of having CROs resolve 

problems as close to the scene of the 

action as possible. Some commenters 

objected to providing TTY service as a 

means of permitting hearing-impaired 

passengers to contact a CRO, saying that 

this was impractical in some places 

(e.g., an airport in a country where TTY 

service was unavailable). Some 

comments said the Foreign Carriers 

NPRM’s proposal to allow 18 months 

after the event for a passenger to file a 

complaint with DOT was too long. 

The final rule retains the role and 

functions of the CRO. Our experience 

supports the proposition that the use of 

CROs is crucial to prompt and efficient 

solution of passengers’ problems. 

However, we are making a few 

clarifications and changes in response to 

comments. Carriers may use other 

accessible technologies in lieu of TTYs 

to permit hearing-impaired passengers 

to communicate with CROs. The 

proposed requirement for carriers to 

refer passengers to the DOT Hotline has 

been dropped. The time frame for a 

carrier to respond to an oral complaint 

to a CRO has been expanded to 30 days, 

making it consistent with the time frame 

for responding to written complaints. 

The final rule clarifies that with respect 

to CROs and complaint responses, 

carriers providing scheduled service, 

and carriers providing nonscheduled 

service using aircraft with 19 or more 

passenger seats, are covered. When the 

rule speaks of ‘‘immediate’’ responses 

by carriers, it means prompt and timely 

referral to a CRO when passengers raise 

a disability-related problem or 

complaint that cannot be quickly 

resolved by carrier personnel on the 

spot (e.g., a gate agent, a flight 

attendant). We have reduced from 18 

months to six months the period after an 

event in which a passenger may file a 

complaint with DOT. 

A few foreign carriers said that it was 

improper to permit non-U.S. citizens to 

have access to the U.S. DOT through the 

complaint process. In the commenters’

view, this implied improper 

extraterritorial jurisdiction under a law 

that was intended to create rights only 

for U.S. citizens. We do not agree. First, 

the ACAA protects ‘‘individuals with 

disabilities,’’ with no limitation on the 

nationality of those individuals. Second, 

the Department has a legitimate interest 

in ensuring that its legal requirements 

are implemented. It does not matter to 

the Department who brings a problem to 

its attention. Once we know about the 

problem, it is up to the Department, 

working with the carrier, to correct the 

problem, and civil penalties are one of 

the Department’s tools for helping to 

correct a problem. 

An association representing U.S. 

carriers objected to a proposed 

exception to the 45-day limitation on 

accepting written complaints for 

complaints referred by the Department 

of Transportation. The commenter also 

suggested that carriers be allowed to 

limit the means through which a 

disability-related complaint is 

transmitted to them to the means used 

to accept non-disability-related 

complaints. In the Department’s view, if 

we think a complaint is important 

enough to refer to an air carrier, it is 

important enough for the carrier to 

respond. We also believe that, in 

attempting to enforce rights under a 

nondiscrimination statute, passengers 

should be able to send a complaint by 

any reasonable means available to them, 

without limitations placed by carriers 

on the transmission of other sorts of 

consumer complaints. These features of 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27645 

the proposed rule will be included in 

the final rule without change. 

Section-by-Section Analysis 

The purpose of this portion of the 

preamble is to describe each of the 

sections of the final rule. The focus of 

the descriptions is on new or changed 

material. 

382.1 What is the purpose of this Part? 

The section is amended to include 

foreign carriers. 

382.3 What do the terms in this rule 

mean? 

This definitions section makes several 

additions or changes to the definitions 

in the current rule. A new definition of 

‘‘carrier’’ includes both U.S. and foreign 

carriers. A new definition of ‘‘CPAP 

machine’’ or continuous positive airway 

pressure machine, a type of respiratory 

assistive device, has also been added. 

There are new definitions of ‘‘direct 

threat,’’ which concerns the standard 

that may permit carriers to take 

otherwise prohibited actions with 

respect to passengers with a disability, 

and ‘‘equivalent alternative,’’ which 

concerns the standard used in 382.10 for 

carriers to adopt policies, practices or 

other accommodations in lieu of 

compliance with the letter of provisions 

of the rule. ‘‘Indirect air carrier’’ refers 

to a person not directly involved with 

the operation of aircraft who sells 

transportation services to the general 

public other than as the agent of a 

carrier. Two agencies concerned with 

safety and security aspects of flight are 

also recognized in this section: The 

Pipeline and Hazardous Materials Safety 

Administration of DOT and the 

Transportation Security Administration 

of the Department of Homeland 

Security. In the definition of ‘‘qualified 

individual with a disability,’’ the final 

rule specifically mentions the term 

‘‘passenger with a disability’’ that is 

frequently used throughout the rule. 

Finally, there is a new definition of 

‘‘portable oxygen concentrator’’ (POC), a 

device used to provide oxygen to 

passengers who need it during flight. 

We have also included in the final 

rule a definition of ‘‘commuter carrier’’

and ‘‘on-demand air taxi’’ as an 

understanding of those terms is 

essential to an understanding of the 

applicability of section 382.133. The 

Department also decided to include a 

definition of ‘‘expected maximum flight 

duration’’ in the final rule as 

commenters had a number of questions 

regarding how a carrier should 

determine if a passenger has a sufficient 

number of batteries available to power 

an electronic respiratory assistive 

device. In this final rule, the Department 

explains that a carrier may require an 

individual to bring enough fully charged 

batteries to power the device for not less 

than 150% of the expected maximum 

flight duration. The definition of 

‘‘expected maximum flight duration’’

provides carriers a list of factors that 

they must take into account in 

determining the total length of a flight. 

We proposed in the DHH NPRM to 

change the phrase, ‘‘telecommunication 

device for the deaf,’’ and its acronym, 

‘‘TDD,’’ to ‘‘text telephone’’ and ‘‘TTY,’’

respectively. All who commented on 

this proposal supported it, so we are 

using the new phraseology in the final 

rule. 

In the DHH NPRM, we proposed not 

to include a definition of ‘‘hard of 

hearing, deaf, and deaf-blind’’ in the 

rule, reasoning that the definition of an 

‘‘individual with a disability’’ is broad 

enough to cover individuals who are 

hard of hearing, deaf, or deaf-blind. We 

did, however, solicit comments on this 

issue. We also proposed not to include 

a definition of ‘‘captioning,’’ but we 

solicited comments on this issue as 

well. We further proposed not to 

include a definition of ‘‘informational,’’

but we stated in the preamble that we 

intended that word to apply to all 

videos, DVDs, and other audio-visual 

displays that do not qualify as safety or 

entertainment displays, including but 

not limited to the following: videos, 

DVDs, and other audio-visual displays 

addressing weather, shopping, frequent 

flyer programs, customs and 

immigration information, carrier routes, 

and other general customer service 

presentations. We also solicited 

comments on this issue. 

Of those who commented on § 382.3, 

the carriers and carrier associations 

generally opposed a definition of ‘‘hard 

of hearing, deaf, and deaf-blind,’’

agreeing with the Department that such 

individuals are covered by the 

definition of an ‘‘individual with a 

disability.’’ They opposed any 

definition of ‘‘captioning’’ that might be 

difficult to meet or that would not allow 

for innovation, and they agreed that 

‘‘informational’’ need not be defined. 

One of the disability organizations 

argued for a definition of ‘‘hard of 

hearing, deaf, and deaf-blind’’ in order 

to cover the ‘‘entire spectrum’’ of 

hearing disabilities. All disability 

organizations supported a definition of 

captioning that makes all audio-visual 

displays easily readable, and they 

agreed with the proposal to explain the 

purport of ‘‘informational’’ in the 

preamble. One of these organizations 

asked the Department to add safety, 

entertainment, and other materials that 

are communicated to passengers who 

can see and hear normally. 

The final rule includes a definition of 

the term ‘‘indirect air carrier.’’ For 

readers’ information, an indirect air 

carrier is an entity that indirectly 

engages in ‘‘air transportation’’ as that 

term is defined in the governing statute 

by engaging the services of a ‘‘direct air 

carrier’’ (an airline). For example, when 

a tour operator or an air freight 

forwarder contracts for space on a 

wholesale level with an airline and the 

tour operator or air freight forwarder 

then re-sells space on that flight on a 

retail basis, setting his own price and 

terms, bearing the entrepreneurial risk 

of profit or loss rather than acting as an 

agent, and controlling the inventory and 

schedule, that tour operator or air 

freight forwarder is acting as an 

‘‘indirect air carrier’’ as defined in the 

statute. Conversely, a retail travel agent 

who sells the product of a disclosed 

principal (e.g., a seat on a scheduled 

airline or on a charter flight), offering it 

at the price and terms set by that 

principal, is acting as an agent rather 

than a principal and is not an indirect 

air carrier. Nor are other participants in 

the air travel system (concessionaires, 

suppliers) considered indirect air 

carriers. 

The final rule will not include 

definitions of ‘‘hard of hearing, deaf, 

and deaf-blind’’ or ‘‘informational.’’ The 

comments have not persuaded us of the 

need for a separate definition to cover 

hearing and vision problems: the 

definition of an ‘‘individual with a 

disability’’ logically includes 

individuals with the whole spectrum of 

hearing and vision impairments. 

Similarly, the comments do not show a 

need for a definition of ‘‘informational’’

in the rule. As we stated in the DHH 

NPRM, by ‘‘informational’’ displays we 

mean all videos, DVDs, and other audiovisual displays that do not qualify as 

safety or entertainment displays, 

including but not limited to the 

following: videos, DVDs, and other 

audio-visual displays addressing 

weather, shopping, frequent flyer 

programs, customs and immigration 

information, carrier routes, and other 

general customer service presentations. 

We exclude safety and entertainment 

displays: these are covered elsewhere, 

in §§ 382.53, 382.69, and 382.119. 

As for captioning, we have 

determined that we should consistently 

use the term ‘‘high-contrast captioning’’

in the rule and define it in § 382.3 rather 

than do so whenever it occurs 

elsewhere. In our definition we are 

adopting a pragmatic approach. 

Defining ‘‘high-contrast captioning’’ as 

‘‘captioning that is at least as easy to 


rwilkins on PROD1PC63 with RULES2
27646 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

read as white letters on a consistent 

black background’’ not only ensures that 

captions will be effective but also allows 

carriers to use existing or future 

technologies to achieve captions that are 

as effective as white on black or more 

so. Some of the comments indicate that 

such technology already exists, and we 

think it would be poor public policy not 

to allow for innovation and 

improvement. The high-contrast 

captioning may be either open—i.e., text 

that is recorded directly in the video 

and cannot be turned off at a user’s 

discretion—or closed—i.e., text that can 

be toggled on or off at the user’s choice. 

382.5 When are U.S. and foreign 

carriers required to begin complying 

with the provisions of this Part? 

Both U.S. and foreign carriers must 

begin complying with the new final rule 

on its effective date, which will be a 

year from the date on which the rule is 

published in the Federal Register. This 

phase-in period is intended to give 

carriers time to take the steps they need 

to comply as well as to submit to the 

Department, in a timely fashion, 

requests for conflict of laws waivers and 

requests for equivalent alternative 

determinations. 

382.7 To whom do the provisions of 

this Part apply? 

The rule applies to all U.S. carriers, 

regardless of where their operations take 

place, except where otherwise provided 

in the rule. With respect to foreign 

carriers, the application of the rule is 

more limited. Only flights of foreign 

carriers that begin or end at a U.S. 

airport, and aircraft used in these 

operations, are covered. A flight means 

a continuous journey of a passenger in 

the same aircraft or using the same flight 

number. The rule provides several 

examples of what constitutes a ‘‘flight’’

and what does not. Notably, a foreign 

carrier is not covered under the rule 

with respect to an operation between 

two foreign points, even if, under a 

code-sharing arrangement with a U.S. 

carrier, the foreign carrier transports 

passengers flying under the U.S. 

carrier’s code. The U.S. carrier, 

however, is covered under the rule with 

respect to the passengers traveling 

under its code on such a flight, such 

that if there is a violation of the Part 382 

rights of a passenger traveling under the 

U.S. carrier’s code, the Department 

would hold the U.S. carrier, not the 

foreign carrier, responsible. Finally, a 

charter flight on a foreign carrier from 

a foreign airport to a U.S. airport and 

back would not be covered if the carrier 

did not pick up any passengers in the 

U.S. 

In the DHH NPRM, we proposed that 

the provisions concerning deaf, hard of 

hearing, and deaf-blind passengers 

apply to all U.S. carrier operations and 

to all flights operated by foreign carriers 

that begin or end at a U.S. airport. We 

proposed that in the case of flights 

operated by foreign carriers between 

two foreign points that are codeshared 

with a U.S. carrier, the service-related 

requirements of the rule would apply to 

the U.S. carrier whose code is used but 

not the aircraft accessibility and 

equipment requirements. In addition, 

we observed in the Preamble that 

§ 382.51, which governs audio-video 

displays at airports, carves out an 

exception for U.S. and foreign carriers at 

foreign airports: § 382.51 applies by its 

terms only to U.S. airport terminal 

facilities owned, leased, or controlled by 

U.S. or foreign carriers. We solicited 

comments on the cost and feasibility of 

requiring U.S. carriers to modify 

equipment, space, or both at foreign 

airport terminals that they lease, own, or 

control. 

Consistent with their comments on 

the Foreign Carriers NPRM, foreign 

carriers and carrier associations that 

filed comments generally criticized the 

Department, saying that it had acted 

unilaterally in this area. Some 

contended that Part 382 should not 

apply to flights that are not part of a 

single journey to or from the United 

States in the same aircraft with the same 

flight number. One U.S. carrier, Delta, 

expressed concern that its foreign 

codeshare partners might find the 

requirements so onerous that they will 

end the code-sharing rather than 

comply, precipitating declines in 

service and competition. One 

association of U.S. carriers supported 

the applicability of Part 382 to foreign 

carriers, as did the disability groups and 

individuals that commented. The 

Regional Airline Association (‘‘RAA’’) 

asked the Department to exempt all 

aircraft of up to 30 seats from the rule 

because its requirements will create 

excessive burdens for operators of small 

aircraft. 

The individuals and disability 

organizations that filed comments 

generally favored making the rule 

applicable to all foreign carrier flights 

that originate or end at a U.S. airport 

and to foreign carrier flights between 

two foreign airports that are codeshared 

with a U.S. carrier. 

We find unpersuasive the foreign 

carriers’ suggestions that in applying 

these requirements to them we are 

somehow exceeding our authority. As 

we explained in the Foreign Carriers 

and DHH NPRMs, in the Wendell H. 

Ford Aviation Investment and Reform 

Act for the 21st Century (AIR–21), 

Congress amended the Air Carrier 

Access Act (ACAA) to include foreign 

carriers in the prohibition against 

discriminating against otherwise 

qualified individuals with disabilities. 

This rulemaking merely implements 

that law. This Department’s authority to 

issue regulations that apply to foreign 

carriers is well-established. This general 

issue is discussed at greater length in 

the ‘‘Response to Comments’’ portion of 

the preamble above. In that section, the 

Department explains the final rule’s 

approach to the issue of code-sharing, 

which applies to deaf and hard-ofhearing issues as well as to other 

provisions of Part 382. 

The service-related requirements 

regarding deaf, hard of hearing, and 

deaf-blind passengers that apply to U.S. 

carriers on codeshare flights operated by 

their foreign-carrier partners between 

two foreign points are those listed in 

§ 382.119. Although we are not applying 

these requirements to the foreign carrier 

operating these flights, the U.S. carrier 

will be subject to enforcement action if 

the foreign carrier fails to provide the 

required information promptly to 

‘‘qualified individuals with a disability 

who identify themselves as needing 

visual and/or hearing assistance’’ and 

whose tickets bear the code of the U.S. 

carrier. The aircraft-accessibility 

requirements set forth in § 382.69 do not 

apply on such flights. Part 382 has no 

equipment requirements specific to 

deaf, hard of hearing, and deaf-blind 

passengers. 

As for RAA’s request, the evidence in 

the record does not provide a basis for 

a blanket exemption from Part 382 for 

aircraft with 30 or fewer seats. If an 

airport or aircraft operator does not use 

a particular technology, sections 

concerning that technology would not 

apply. Normal provisions concerning 

exemptions from Office of the Secretary 

rules (see 49 CFR Part 5) could be used 

if a carrier or airport believes an 

exemption is needed in a particular 

situation. 

382.9 What may foreign carriers do if 

they believe a provision of a foreign 

nation’s law prohibits compliance with 

a provision of this Part? 

This provision creates a conflict of 

laws waiver mechanism to give 

appropriate consideration to 

requirements of foreign law applicable 

to foreign carriers. It is important to note 

that this mechanism is intended to 

apply only to genuine conflicts with 

legally binding foreign legal mandates. 

A foreign law that requires a foreign 

carrier to do something prohibited by 

this rule, or that prohibits a foreign 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27647 

carrier from doing something required 

by this rule, is an appropriate subject for 

a conflict of laws waiver. A foreign 

carrier’s or foreign government’s policy, 

authorized practice, recommendation, 

or preference is not. However, if a 

foreign government officially informs a 

carrier that it plans to take enforcement 

action (e.g., impose a civil penalty) 

against a carrier for failing to implement 

a provision of a government policy, 

guidance document, or 

recommendation, the Department would 

view the enforcement action as creating 

a legal mandate that could be addressed 

under this section. 

If, as a legal matter, the foreign carrier 

has no choice but to act contrary to this 

rule, the Department would grant a 

waiver. If the foreign carrier, as a matter 

of law, has any discretion in the matter, 

it must exercise that discretion by 

complying with this rule, even if 

contrary to the carrier’s policy or the 

recommendation of a foreign 

government, and the Department would 

not grant a waiver. A waiver request 

would have to include the carrier’s 

proposal for an alternative means of 

achieving the rule’s objectives with 

respect to any provision that is waived. 

The Department wants to ensure that 

waiver requests are submitted and 

granted or denied in a timely manner, 

avoiding the dilemma for foreign 

carriers of having to choose between 

compliance with this rule and with 

conflicting foreign laws when the rule 

goes into effect a year after its 

publication. We encourage foreign 

carriers to make any waiver requests 

within 120 days of the rule’s 

publication. The Department commits to 

deciding requests made in this time 

period before the rule goes into effect. 

If we are late, then the foreign carrier 

may continue to carry out the policy or 

practice involved until we do respond, 

and if the request is denied the 

Department would not take any 

enforcement action against the carrier 

with respect to activities that took place 

prior to the denial. Even with respect to 

waiver requests submitted after the 120- 

day period, the Department will do its 

best to respond before the effective date 

of the rule. Again, the carrier can choose 

to continue to follow the policy or 

practice that is the subject of the request 

until the Department does respond. 

However, if such a request is denied, the 

carrier risks enforcement action with 

respect to the period between the 

effective date of the rule and the date of 

the Department’s response. The 

Department has established this twostage waiver consideration process to 

help avoid a situation in which a foreign 

carrier would delay submission of a 

waiver request until shortly before the 

effective date of the rule, in an attempt 

to delay compliance with the rule while 

the Department considered its late-filed 

request. 

We also recognize that new foreign 

legal mandates can arise. If a new 

mandate is created after the initial 120- 

day period following publication of the 

rule (not an existing legal mandate that 

is subsequently discovered or goes into 

effect subsequently), then a foreign 

carrier may submit a waiver request and 

continue to implement the policy or 

practice involved until the Department 

responds. In this case, the carrier would 

not be subject to enforcement action for 

the period prior to the Department’s 

response. 

This section also notes that if a 

foreign carrier submits a frivolous or 

dilatory waiver request, has not 

submitted a waiver request with respect 

to a particular policy or practice, or 

continues to follow a policy or practice 

concerning which a waiver request has 

been denied, the carrier could be subject 

to DOT enforcement action. For 

example, if the Department initiates 

enforcement action because we believe 

a foreign carrier’s practice is contrary to 

the rule, the carrier could not defend 

against the enforcement by claiming a 

conflict with an existing foreign legal 

mandate if the carrier had not 

previously submitted a waiver request 

concerning the practice, or the request 

had been denied. 

382.10 How does a U.S. or foreign 

carrier obtain a determination that it is 

providing an equivalent alternative to 

passengers with disabilities? 

While the concept of equivalent 

facilitation has been a part of DOT 

Americans with Disabilities Act (ADA) 

rules since 1991 (see 49 CFR 37.7–37.9), 

it has not previously been part of ACAA 

rules. The use of ‘‘equivalent 

alternative’’ in this rule is somewhat 

broader than the use of ‘‘equivalent 

facilitation’’ in DOT or DOJ ADA rules 

or in the Americans with Disabilities 

Act Accessibility Guidelines issued by 

the U.S. Access Board, which focused 

on ‘‘hardware’’ modifications to 

vehicles and facilities. In the ACAA 

context, equivalent alternative can also 

refer to policies, practices, or other 

accommodations to passengers with 

disabilities. 

The key point of this section is that, 

in order to be viewed as an equivalent 

alternative, a policy, practice, 

accommodation, or piece of equipment 

must really provide substantially 

equivalent accessibility to passengers 

with disabilities than compliance with a 

provision of the rule. It isn’t enough for 

a carrier’s proposed alternative to be 

different from a provision of the rule. 

Alternatives that provide less 

accessibility than the provisions of the 

rule, or that impose greater burdens on 

passengers with disabilities, cannot be 

considered an equivalent alternatives. 

Equivalent alternatives also pertain only 

to specific requirements of the rule. The 

Department would not entertain an 

equivalent alternative request that asked 

us to find that an entire foreign 

regulatory scheme was equivalent to 

this rule, for example. 

Similar to the conflict of laws waiver 

provision, the equivalent alternative 

provision is structured to provide an 

incentive to carriers to file timely 

requests. If a carrier submits its request 

within 120 days of the publication date 

of this Part, the Department will try to 

respond before the effective date of the 

rule. The carrier can implement the 

policy or practice it requests as an 

equivalent alternative beginning on the 

effective date of the rule until the 

Department does respond. (A U.S. 

carrier subject to the current rule could 

not begin implementing an equivalent 

alternative it had requested within the 

120-day time period until the new rule 

goes into effect, since the current rule 

does not provide for equivalent 

alternatives.) If a carrier submits its 

request after the 120-day period 

following publication, the carrier must 

comply with the provision of the 

regulation pending the Department’s 

response. 

382.11 What is the general 

nondiscrimination requirement of this 

Part? 

382.13 Do carriers have to modify 

policies, practices, and facilities to 

ensure nondiscrimination? 

These sections are very similar to 

section 382.7 of the current regulation. 

One difference is that the new rule 

specifies that carriers may require 

preboarding as a condition of receiving 

certain seating or in-cabin stowage 

accommodations. The requirement to 

make modifications of policies, 

practices, and facilities has been broken 

out into a separate section. This 

requirement recognizes that there can be 

times when, in order to provide 

nondiscriminatory service to a 

particular individual, carriers must 

change or make an exception to an 

otherwise acceptable general policy or 

practice for that individual. It should be 

emphasized that this provision is not 

intended to require carriers to make 

generally applicable changes in policies 

for all passengers, or all passengers with 

disabilities. The provision focuses on 


rwilkins on PROD1PC63 with RULES2
27648 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

the carrier doing what it needs to do—

short of incurring an undue burden or 

making a fundamental alteration in its 

services—to make sure that a passenger 

with a disability can take the trip for 

which he or she is ticketed. 

382.15 Do carriers have to make sure 

that contractors comply with the 

requirements of this Part? 

It is a basic principle of 

nondiscrimination law that while a 

regulated party can contract out its 

functions, it cannot contract away its 

responsibilities. Consequently, a carrier 

that contracts out any functions 

concerning passengers with disabilities 

must ensure that the contractors comply 

with the provisions of this Part, just as 

if the carrier were performing the 

functions itself. Assurances and contract 

conditions in the agreements between 

carriers and their contractors are a key 

measure to carriers’ compliance with 

this section. Noncompliance with these 

contract conditions by the contractor 

must be stated in the contract as being 

a material breach of the contract. The 

Department expects carriers to monitor 

the performance of contractors to ensure 

that the contractors’ performance 

complies with the requirements of this 

Part and to take appropriate contract 

action against contractors that breach 

their contracts by failing to comply. The 

Department would view a carrier’s 

failure to do so as noncompliance with 

the carrier’s obligations under this rule, 

and a carrier cannot defend against an 

enforcement action by the Department 

by claiming that a contractor erred. The 

carrier remains responsible. 

382.19 May carriers refuse to provide 

transportation on the basis of disability? 

This section continues, and extends to 

foreign carriers, the key 

nondiscrimination requirement of the 

ACAA and the existing Part 382. With 

narrow exceptions, a carrier is 

prohibited from denying transportation 

to a passenger on the basis of disability. 

Carriers retain their authority, under 49 

U.S.C. 44902 and 14 CFR 121.533, to 

deny transportation to any passenger, 

disabled or not, on the basis of safety or 

whose carriage would violate FAA or 

TSA requirements. 

If the carrier’s reason for excluding a 

passenger on the basis of safety is that 

the individual’s disability creates a 

safety problem, the carrier’s decision 

must be based on a ‘‘direct threat’’

analysis. This concept, grounded in the 

Americans with Disabilities Act, calls 

on carriers to make an individualized 

assessment (e.g., as opposed to a 

generalization or stereotype about what 

a person with a given disability can or 

can’t do) of the safety threat the person 

is thought to pose. In doing so, the 

carrier must take into account the 

nature, duration and severity of the risk; 

the probability that the potential harm 

will actually occur; and whether 

reasonable mitigating measures can 

reduce the risk to the point where the 

individual no longer poses a direct 

threat. In using its authority to make a 

direct threat determination and exclude 

a passenger, a carrier must not act 

inconsistently with other provisions of 

Part 382. Direct threat determinations 

must not be used as a sort of de facto 

exception to specific requirements of 

this Part (e.g., the prohibition on 

number limits). 

Exclusion of a passenger because his 

disability-related appearance or 

involuntary behavior may offend, 

annoy, or inconvenience other 

persons—as distinct from creating a 

direct threat to safety—is an important 

part of this nondiscrimination mandate. 

The rationale for this requirement was 

stated in the preamble to the 1990 

ACAA rule, and it remains valid (see 55 

FR 8027; March 6, 1990). 

382.21 May carriers limit access to 

transportation on the basis that a 

passenger has a communicable disease 

or other medical condition? 

As a general matter, carriers may not 

exclude or impose other requirements or 

conditions on a passenger on the basis 

that the passenger has a communicable 

disease. However, if the passenger poses 

a direct threat, the carrier may take 

appropriate action to safeguard the 

health and safety of other persons on the 

flight. 

The Department has added regulatory 

language codifying the Department’s 

guidance on how airlines should 

determine whether someone’s disease 

presents a direct threat. To be a direct 

threat, a condition must be both able to 

be readily transmitted by casual contact 

in the course of a flight AND have 

severe health consequences (e.g., SARS, 

active tuberculosis). If a condition is 

readily transmissible but does not 

typically have severe health 

consequences (e.g., the common cold), 

or has severe health consequences but is 

not readily transmitted by casual 

conduct in the course of a flight (e.g., 

HIV), its presence would not create a 

direct threat. Carriers may also rely on 

directives issued by public health 

authorities (e.g., in the context of a 

future flu pandemic). 

If a passenger who is deemed to 

present a direct threat cannot travel at 

his or her scheduled time as a result, the 

carrier must allow the passenger to 

travel at a time up to 90 days from the 

date of postponed travel at the same 

price or, if the passenger prefers, 

provide a refund. Consequently, 

cancellation or rebooking fees or 

penalties would not apply in this 

situation, and the passenger would not 

be subject to any fare increases that may 

occur in the meantime or any increase 

in that passenger’s fare due to the nonavailability of a seat in the fare class on 

his or her original ticket. 

382.23 May carriers require a 

passenger with a disability to provide a 

medical certificate? 

Like the medical certificates section 

in the current rule, this section 

generally prohibits carriers from 

requiring medical certificates (i.e., 

written statements from a doctor saying 

that a passenger is capable of 

completing a flight safely, without 

requiring extraordinary medical 

assistance during the flight). People 

with disabilities have functional 

impairments with respect to walking, 

seeing, hearing etc. These impairments, 

by and large, are not sicknesses 

requiring medical treatment or clearance 

(though, of course, persons with 

disabilities can have illnesses like 

everyone else). At the same time, 

airlines and their personnel are not 

medical service providers, and it is not 

reasonable to expect them to perform 

medical services. This provision is 

intended to balance these realities. 

Oxygen users and, people traveling in 

a stretcher or incubator can be required 

to produce a medical certificate. The 

situation that most commonly would 

result in a call for a medical certificate 

is one in which carrier personnel have 

a reasonable doubt that someone can 

complete the flight safely, without 

requiring extraordinary medical 

assistance. In such a case, carrier 

personnel can require a medical 

certificate in order to provide assurance 

that the passenger will not need such 

assistance. The rule clarifies that a 

medical certificate must be recent 

(within 10 days of the passenger’s 

departing flight). 

There is also a relationship between 

this section and the communicable 

diseases provision. Section 382.21(a)(4) 

allows a carrier to require a medical 

certificate if the carrier determines that 

the passenger has a communicable 

disease that could pose a direct threat. 

Under section 382.23(c), the passenger 

would then have to produce a medical 

certificate, to the effect that the 

passenger’s condition would not be 

communicable to other persons during 

the normal course of the flight. If it is 

potentially transmissible during the 

flight but this can be prevented if 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27649 

certain conditions or precautions are 

implemented, the certificate would have 

to describe those conditions or 

precautions. Unlike the situation with 

respect to medical certificates under 

paragraph (b)(3), a medical certificate in 

the situation of a communicable disease 

under paragraph (d) would have to be 

dated within 10 days of the flight for 

which it is presented (not 10 days prior 

only to the passenger’s initial departing 

flight). Under paragraph 382.21(c), if the 

section 382.23(c)(2) medical certificate 

provides measures for preventing the 

transmission of a disease, the carrier 

must provide transportation to the 

passenger—carrying out the prescribed 

measures—unless the carrier determines 

that it is unable to carry out the 

measures. If the carrier is unable to do 

so, it can deny transportation to the 

passenger. In this event, the carrier’s 

written explanation to the passenger 

under section 382.21(e) would include 

an explanation of why it was not able 

to carry out the measures identified in 

the medical certificate. 

A carrier may elect to subject a 

passenger with a medical certificate to 

additional medical review (e.g., by the 

carrier’s physician) if the carrier 

believes either that there has been a 

significant adverse change in the 

passenger’s medical condition since the 

issuance of the medical certificate or 

that the certificate significantly 

understates the passenger’s risk to the 

health of other persons on the flight. If 

this additional review shows that the 

passenger is unlikely to be able to 

complete the flight without 

extraordinary medical assistance or 

would pose a direct threat to other 

passengers, the carrier could, 

notwithstanding the medical certificate, 

deny or restrict the passenger’s 

transportation. 

We also note that, under section 

382.117(e), airlines can require 

passengers traveling with emotional 

support or psychiatric service animals 

to provide certain documentation. This 

information is not a medical certificate 

in the sense articulated in section 

382.23, but airlines are entitled to obtain 

this documentation as a condition of 

permitting the emotional support or 

psychiatric service animal to travel in 

the cabin with the passenger. 

382.25 May a carrier require a 

passenger with a disability to provide 

advance notice that he or she is 

traveling on a flight? 

382.27 May a carrier require a 

passenger with a disability to provide 

advance notice in order to obtain 

specific services in connection with a 

flight? 

Carriers may not require a passenger 

with a disability to provide advance 

notice of the fact that he or she is 

traveling on a flight. That is, a carrier 

cannot say to a passenger, in effect, 

‘‘You have a disability; therefore, you 

must let me know in advance that you 

are going to fly on my aircraft, Flight 

XXX.’’

On the other hand, there is a series of 

accommodations that many passengers 

with disabilities may need or want that 

carriers reasonably require time to 

arrange. For these services, carriers may 

require up to 48 hours’ advance notice 

(i.e., 48 hours before the scheduled 

departure time of the flight) AND a 

check-in time one hour before the 

check-in time for the general public. 

That is, if passengers generally are told 

to arrive at the gate one hour before the 

scheduled departure time of the flight to 

check in, the carrier may tell passengers 

seeking one of these listed 

accommodations to check in two hours 

before the scheduled departure time for 

the flight. If the passenger with a 

disability meets the advance notice and 

check-in time requirements, the carrier 

must provide the requested 

accommodation. If not, the carrier must 

still provide the accommodation if it 

can do so by making reasonable efforts, 

without delaying the flight. 

Most of the services or 

accommodations for which a carrier can 

require advance notice are the same as 

under the existing regulation (e.g., 

transportation of an electric wheelchair 

on a flight scheduled to be made on an 

aircraft with fewer than 60 seats, 

accommodation for a group of 10 or 

more passengers with a disability who 

make reservations to travel as a group). 

It is important to note that, with respect 

to the onboard use of supplemental 

oxygen, advance notice can be required 

of a passenger whether the carrier 

provides the oxygen (i.e., via POC or 

containerized oxygen,) or the passenger 

brings his or her own POC for use 

during the flight. It should also be noted 

that when requesting carrier-supplied 

supplemental oxygen, advance notice of 

up to 48 hours for domestic flights and 

up to 72 hours for international flights 

may be required. 

There are a few new situations in 

which the rule permits carriers to 

require advance notice. These include 

transportation of an emotional support 

or psychiatric service animal, 

transportation of any service animal on 

a flight scheduled to take eight hours or 

more, and accommodation of an 

individual who has both severe vision 

and hearing impairments. 

382.29 May a carrier require a 

passenger with a disability to travel with 

a safety assistant? 

The terminology of this section has 

been changed from ‘‘attendant’’ to 

‘‘safety assistant’’ to more accurately 

reflect the role of the person 

accompanying the passenger. A safety 

assistant is not a personal care attendant 

who looks after the personal care needs 

of a passenger. A carrier cannot require 

a personal care attendant to travel with 

a passenger with a disability. Rather, the 

safety assistant is someone who would 

assist the passenger to exit the aircraft 

in case of an emergency evacuation or 

to establish communication with carrier 

personnel for purposes of the required 

safety briefing. People like passenger 

volunteers, an individual selected by 

the passenger, or deadheading crew 

members remain appropriate candidates 

to act as safety assistants. 

This section generally follows the 

model of the corresponding section of 

the existing regulation. However, with 

respect to the situation of a passenger 

with a severe mobility impairment, the 

criterion for permitting the carrier to 

require a safety assistant has been 

clarified to address circumstances 

where the passenger is unable to 

physically assist in his or her own 

evacuation. This change is made to 

avoid potential confusion that a 

passenger could assist in his or her own 

evacuation simply by calling for help. 

The ‘‘Response to Comments’’ section 

of the preamble describes in greater 

detail other changes, including a new 

advance notice requirement, that would 

apply to passengers who have both 

severe vision and hearing impairments. 

In section 382.29(b)(4), it is mentioned 

that a passenger with both severe 

hearing and vision impairments is 

responsible for explaining how he or 

she can establish communication 

adequate to permit transmission of the 

safety briefing and to enable the 

passenger to assist in his or her own 

evacuation of the aircraft in the event of 

an emergency. The new 48-hours’

advance notice requirement is intended 

to give the carrier time to make any 

arrangements necessary to accommodate 

the passenger following this 

explanation. The language in section 

382.29(b)(4) concerning the ability of a 

passenger to assist in his or her own 


rwilkins on PROD1PC63 with RULES2
27650 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

evacuation refers to being able to 

establish, at or around the time of the 

safety briefing, a means by which the 

passenger can receive instructions 

concerning an emergency evacuation. 

For example, the passenger and air 

carrier could arrange a hand or touch 

signal that the passenger knows means 

‘‘get up and follow passengers to an 

emergency exit.’’

When a passenger with a disability 

cannot travel on a flight because there 

is no seat available for a safety assistant 

that the carrier has determined to be 

necessary, the passenger must be 

compensated in an amount to be 

calculated under the Department’s 

denied boarding compensation (DBC) 

rule, 14 CFR Part 250, where Part 250 

applies. The DBC rule applies to both 

U.S. and foreign carriers with respect to 

domestic and international scheduledservice nonstop flight segments 

departing from a U.S. airport. It does not 

apply to flights departing from a foreign 

airport, whether operated by a U.S. or 

foreign carrier. 

382.31 May carriers impose special 

charges on passengers with a disability 

for providing services and 

accommodations required by this rule? 

Carriers may not impose charges on 

passengers for accommodations 

required by the rule. However, if a 

carrier voluntarily provides a service 

that this rule does not require, the 

carrier may charge a passenger with a 

disability for that service. 

The issue of carrier web site 

accessibility requirements has been 

deferred to a forthcoming SNPRM. 

While that issue is being considered, the 

Department is adding a provision to 

address potentially discriminatory 

effects of their web site-related policies 

on passengers with disabilities who 

cannot use a carrier’s web site because 

it is not accessible. If a carrier charges 

people who make reservations by phone 

or in person more than people who 

make reservations on the web site, this 

surcharge cannot be applied to persons 

with disabilities who must make 

reservations by another means because 

the web site is inaccessible to them. 

Likewise, if there are ‘‘web only’’

discounts or special offers made 

available to passengers on the carrier’s 

web site, passengers with disabilities 

who cannot use the web site must be 

offered the same terms when they seek 

to book a flight by other means. 

382.33 May carriers impose other 

restrictions on passengers with a 

disability that they do not impose on 

other passengers? 

382.35 May carriers require passengers 

with a disability to sign waivers or 

releases? 

Carriers must not impose 

requirements or restrictions on 

passengers with a disability that they do 

not impose on other passengers, except 

where this regulation explicitly permits 

the carrier to do so (e.g., advance notice 

for certain services). We hope that many 

of the practices specifically banned in 

this section are only of historical 

interest (e.g., making passengers with 

disabilities sit on blankets or restricting 

such passengers to so-called ‘‘corrals’’ in 

terminals), but we believe they are still 

useful examples of the sort of 

discriminatory treatment that is 

unacceptable in the context of a 

nondiscrimination statute. Waivers of 

liability or releases either for passengers 

themselves or for loss or damage of 

wheelchairs and other assistive devices 

are among the forbidden practices, 

although as we have stated in the past, 

carriers are free to note pre-existing 

damage to an assistive device to the 

same extent that carriers do this with 

respect to other checked baggage. 

382.41 What flight-related information 

must carriers provide to qualified 

individuals with a disability? 

This provision is very similar to the 

corresponding provision of the existing 

rule. Carriers must provide information 

about the accessibility features of 

aircraft (e.g., the presence and location 

of seats that can be accessed through 

movable armrests, and seats not 

available to passengers with 

disabilities). In addition, carriers must 

provide information about any service 

limitations in accommodating a 

passenger with a disability. When levelentry boarding is not available on a 

particular flight, carriers must also 

provide information about boarding 

assistance requiring the use of a ramp or 

lift to all passengers who indicate that 

they will use a wheelchair for boarding, 

whether or not they specifically ask for 

the information. 

As a general matter under Part 382, 

when an agent acting on behalf of an 

airline provides inaccurate information 

to a passenger with a disability 

concerning a disability-related 

accommodation, in most instances the 

airline will be responsible for any 

resulting information-related violation 

of the law. It should also be noted that 

when a carrier agrees to provide a 

service not specifically required under 

this Part to accommodate a particular 

passenger’s disability, the carrier is 

obliged to provide that service to the 

passenger or risk being found in 

violation of section 382.41. For 

example, if a carrier informs a passenger 

that it will accommodate his or her 

peanut allergy by not serving peanuts on 

his or her flight itinerary, the carrier 

must ensure that peanuts are not served 

on those flights or it will be in violation 

of section 382.41. 

382.43 Must information and 

reservation services of carriers be 

accessible to individuals with hearing 

and vision impairments? 

The ‘‘Response to Comments’’ section 

of the preamble discusses the 

requirements that will apply to carriers 

with respect to TTY or telephone relay 

communication between users of TTYs 

and carriers. As noted in that 

discussion, the purpose of § 382.43 is to 

put deaf and hard of hearing passengers 

on a substantially equivalent footing 

with the rest of the public in their 

ability to communicate with carriers by 

telephone regarding information and 

reservations. We aim to ensure 

substantial equivalence in both access to 

any carrier and wait time if an agent is 

not available when a connection is first 

made. 

Carriers may meet this requirement by 

using TTYs themselves, but they may 

also do so by means of voice relay or 

any other available technology that 

permits TTY users to communicate with 

them. This requirement is set forth in 

§ 382.43(a). We are also adding a new 

access requirement in § 382.43(a)(4) to 

ensure that deaf and hard of hearing 

passengers are informed how to reach 

carriers by TTY: In any medium in 

which a carrier states the telephone 

number of its information and 

reservation service for the general 

public, it must also state its TTY 

number if it has one, or if not, it must 

specify how TTY users can reach the 

information and reservation service 

(e.g., via call relay service). Such media 

include, for example, web sites, ticket 

jackets, telephone books, and print 

advertisements. 

Based on comments to the docket, we 

are also adding § 382.43(b), which states 

that the requirements of § 382.43(a) do 

not apply to carriers in any country in 

which the telecommunications 

infrastructure does not readily permit 

compliance. 

Carriers that provide written 

information to passengers must ensure 

that that this information can be 

communicated effectively to passengers 

with vision impairments. This could be 

done through alternative formats or, 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27651 

especially for brief or compact pieces of 

information that can be comprehended 

and remembered effectively by a 

listener, through verbal communication 

(e.g., the time and date of a specific 

flight, as distinct from the airline’s 

entire timetable for a city pair). 

For foreign carriers, these 

requirements apply only with respect to 

information and reservation services for 

flights covered by section 382.5. With 

respect to TTY services, the requirement 

applies to foreign carriers only with 

respect to flights for which reservation 

phone calls from the U.S. are accepted. 

Please see the ‘‘Response to 

Comments’’ section for further 

information about the requirement that 

a copy of Part 382 be made available in 

airports served by carriers subject to this 

rule. 

382.45 Must carriers make copies of 

this Part available to passengers? 

U.S. carriers must keep a copy of Part 

382 at each airport they serve and make 

it available to anyone who asks for it. 

Foreign carriers must do this at any 

airport serving a flight that begins or 

ends at a U.S. airport. An Englishlanguage copy of the rule is sufficient 

for this purpose. Carriers are not 

required to translate the document into 

other languages. Although carriers are 

not required to make a copy of Part 382 

available in accessible formats at 

airports, carriers that provide 

information to the public on a website 

must place information on that website 

telling passengers that they can obtain 

an accessible copy of the rule from DOT. 

382.51 What requirements must 

carriers meet concerning the 

accessibility of airport facilities? 

The principal substance of airport 

facility accessibility requirements is the 

same for both U.S. and foreign carriers. 

Certain aspects of the requirements 

differ depending on whether the facility 

in question is located in the U.S. or in 

a foreign country. 

U.S. facilities that a carrier owns, 

controls, or leases must meet 

requirements applicable to Title III 

facilities under the Americans with 

Disabilities Act. The requirements are 

those of the Americans with Disabilities 

Act Accessibility Guidelines (ADAAG), 

as incorporated in Department of Justice 

(DOJ) ADA regulations implementing 

Title III. There must be an accessible 

path between gate and boarding area 

when level entry boarding is not 

available to an aircraft. The ADAAG 

reference in paragraph (a)(2) is to the 

former version of the ADAAG, which is 

still the version incorporated in the DOJ 

rules. When DOJ incorporates the new 

version of ADAAG in their Title III 

rules, we will update this reference. 

Inter-terminal and intra-terminal 

transportation owned, leased, or 

controlled by a carrier at a U.S. airport 

must meet DOT ADA rules. Since DOT 

has already incorporated the new 

version of ADAAG into its regulations, 

the new ADAAG’s provision will apply 

to any features covered by the DOT 

rules. One new requirement at U.S. 

airports is to provide, in cooperation 

with the airport operator, animal relief 

areas for service animals that 

accompany passengers who are 

departing, arriving, or connecting at the 

facility. 

At foreign airports, to which the 

ADAAG do not apply, Part 382 applies 

a performance requirement to make sure 

that passengers with a disability can 

readily use the facilities the carrier 

owns, leases, or controls at the airport. 

For foreign carriers, this requirement 

applies only to terminal facilities that 

serve flights that begin or end in the U.S 

(i.e., those covered by section 382.5). 

Both U.S. and foreign carriers must meet 

the requirements at foreign airports 

within one year after the effective date 

of the rule. As noted elsewhere in the 

preamble, carriers may rely on the 

facility accessibility services provided 

by airport operators at foreign airports, 

supplementing where needed to ensure 

full compliance with this rule. 

In the DHH NPRM, we proposed 

several requirements for U.S. and 

foreign carriers at terminal facilities that 

they own, lease, or control at any U.S. 

airport. First, we proposed a 

requirement that carriers enable any 

existing captioning feature (preferably 

high-contrast) on all televisions and 

other audio-visual displays providing 

safety, information, or entertainment 

content in those portions of the airport 

that are open to the general public and 

that they keep this captioning feature on 

at all times. Second, we proposed a 

requirement that in areas of restricted 

passenger access such as club rooms, 

carriers enable any existing captioning 

function on televisions and other audio 

and visual displays upon request. Third, 

we proposed a requirement that carriers 

replace any televisions and other audiovisual displays that do not have a highcontrast captioning function with ones 

that do as these devices are replaced in 

the normal course of operations or when 

the airport facilities undergo substantial 

renovation or expansion. Fourth, we 

proposed a requirement that newly 

acquired televisions and other audiovisual displays be equipped with highcontrast captioning capability. We 

solicited comments both on these 

proposals and on whether any carriers 

have leases for terminal facilities at a 

U.S. airport whereby the airport retains 

control over the televisions and other 

audio-visual displays in that facility. If 

so, we said, we would consider 

requiring the carriers and airports to 

work together to enable captioning on 

equipment that has captioning 

capability and to replace equipment that 

does not have high-contrast captioning 

capability with equipment that does. 

(We also noted that all televisions with 

screens of at least 13 inches made or 

sold in the U.S. since July 1, 1993, have 

been required to have captioning 

capabilities.) We further solicited 

comment on whether televisions and 

other audio-visual displays equipped 

with captioning features would 

necessarily have high-contrast 

captioning (e.g., white letters on a 

consistent black background), whether 

such equipment may have some type of 

captioning other than ‘‘high-contrast,’’

and whether the availability of highcontrast captioning, as opposed to lowor medium-contrast captioning, depends 

on the age, cost, or screen size of the 

equipment. 

None of the comments addressed the 

question of high- versus medium- versus 

low-contrast captioning. Most of the 

carriers and carrier groups that filed 

comments claimed not to have control 

over the audio-visual equipment at their 

terminal facilities. The individuals and 

disability organizations that filed 

comments strongly objected to different 

standards for audio-visual equipment in 

areas open to all passengers versus areas 

with restricted access, and all support 

captioning on all such equipment at all 

times. 

We are modifying the language of the 

proposed § 382.51 to make our 

intentions clearer, and based on the 

comments, we are also adding language 

that places joint responsibility for 

compliance on the carrier and the 

airport in cases where the latter has 

control over the televisions and other 

audio-visual equipment that this section 

addresses. (To this end, we will also be 

amending 49 CFR Part 27, Subpart B, to 

codify the requirement for airports.) We 

have determined, based both on the 

comments from individuals and 

disability groups and on the lack of 

objections from carriers and carrier 

groups, that the same standard should 

apply to all equipment, whether it be in 

areas to which the general public has 

access or in areas to which access is 

limited. If such equipment has 

captioning capability, that capability 

must be enabled at all times. These 

requirements do not apply to either U.S. 

or foreign carriers at foreign airports. 


rwilkins on PROD1PC63 with RULES2
27652 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

382.53 What information must carriers 

give individuals with a vision and/or 

hearing impairment at airports? 

With some variations for the 

situations of U.S. and foreign airports, 

and U.S. and foreign carriers, the basic 

point of this section is that at each gate, 

ticketing area, and customer service 

desk that a carrier owns, leases, or 

controls, a carrier must ensure that 

passengers with a disability who 

identify themselves as persons needing 

visual or hearing assistance have 

prompt access to the same information 

provided to other passengers. This 

requirement applies to a wide variety of 

information, concerning such subjects 

as flight safety, ticketing, flight check-in, 

flight delays or cancellations, schedule 

changes, boarding information, 

connections, gate assignments, checking 

baggage, volunteer solicitation on 

oversold flights (e.g., offers of 

compensation for surrendering a 

reservation), individuals being paged by 

airlines, aircraft changes that affect the 

travel of persons with disabilities, and 

emergencies (e.g., fire, bomb threat). 

382.55 May carriers impose security 

screening procedures for passengers 

with disabilities that go beyond TSA 

requirements or those of foreign 

governments? 

All passengers are subject, at U.S. 

airports, to TSA screening procedures 

and, at foreign airports, to screening 

procedures established by the law of the 

country in which the airport is located. 

If a carrier wants to go beyond those 

mandated procedures, it must make sure 

that it treats passengers with disabilities 

equally with other passengers. Security 

personnel may examine assistive 

devices and must provide, on request, 

private screenings for passengers with 

disabilities requiring secondary 

screening. 

382.57 What services must carriers 

provide if their automated kiosks are 

inaccessible? 

The Department will seek further 

comment on kiosk accessibility issues in 

an SNPRM. Meanwhile, if existing 

kiosks are inaccessible (e.g., to 

wheelchair users because of height or 

reach issues, to visually-impaired 

passengers because of issues related to 

visual displays or touch screens), 

carriers must ensure equal treatment for 

persons for disabilities who cannot use 

them. This can be done in a variety of 

ways. For example, a passenger who 

cannot use the kiosk could be allowed 

to come to the front of the line at the 

check-in counter, or carrier personnel 

could meet the passenger at the kiosk 

and help the passenger use the kiosk. 

382.61 What are the requirements for 

movable aisle armrests? 

This section is very similar to the 

movable aisle armrest provisions of the 

present rule. Armrests on at least half 

the aisle seats in rows containing seats 

in which passengers with mobility 

impairments are permitted to sit under 

FAA rules must be movable. If there are 

no seats in which a person with a 

mobility impairment can sit under FAA 

rules (e.g., an exit row), then that row 

does not constitute part of the base from 

which the calculation of half the rows 

is made, and of course such a row is not 

one in which a movable armrest is 

needed. 

The provision clarifies that movable 

aisle armrests must be provided 

proportionately in all classes of service. 

As discussed elsewhere in the preamble, 

if the seats in a given class of service, 

such as first class, can be accessed by a 

wheelchair user without a movable aisle 

armrest being provided, the carrier may 

request an equivalent alternative 

determination. Consistent with section 

382.41, carriers must find ways of 

ensuring that passengers with 

disabilities can locate specific seats they 

can access with movable armrests. 

A carrier wishing to submit an 

equivalent alternative request 

concerning movable armrests must 

show the Department that, in fact, 

persons with mobility impairments 

using aisle and boarding wheelchairs 

can transfer horizontally into a given 

seat without being lifted over an armrest 

or other obstacle. The Department 

would not make such a determination 

based solely on the representation of the 

carrier that such transfers were possible. 

‘‘Show your work’’ is the appropriate 

maxim. Diagrams could be one useful 

part of such a showing. What the 

Department recommends, however, is a 

video of a demonstration showing 

carrier personnel actually transferring 

passengers with disabilities—preferably, 

passengers of various sizes—into the 

seat or row in question from an aisle or 

boarding chair. 

Carriers are not required to retrofit 

cabins of existing aircraft to install 

movable armrests. However, if a carrier 

replaces any of an aircraft’s aisle seats 

with newly manufactured seats, at least 

half the replacement seats must have 

movable armrests. For example, if a 

carrier replaces four aisle seats with 

newly manufactured seats, then two of 

these seats have to have movable 

armrests. If the carrier is replacing an 

odd number of seats, a majority of the 

newly manufactured aisle seats installed 

must have movable armrests. For 

example, if the carrier is replacing five 

old aisle seats with newly manufactured 

seats, at least three of the newly 

manufactured aisle seats must have 

movable armrests. The Department does 

not intend this provision to require 

carriers to have more than 50% movable 

armrests in the cabin, however. For 

example, suppose an aircraft has 40 

aisle seats, 20 of which have movable 

armrests. The carrier decides to replace 

five aisle seats that do not have movable 

armrests with newly manufactured 

seats. These new seats would not have 

to include movable armrests. 

The timing of the application of these 

requirements is as follows: Foreign 

carriers must comply with ‘‘new 

aircraft’’ requirements with respect to 

planes ordered after the effective date of 

this Part or delivered more than one 

year after the effective date of this Part. 

Foreign carriers must comply with the 

requirement for replacement seats 

(paragraph (e)) beginning on the 

effective date of the rule. U.S. carriers 

are already subject to the requirements 

of this section, except the 

proportionality requirement (paragraph 

(c)) with respect to aircraft ordered after 

April 5, 1990 or delivered after April 5, 

1992. When we say ‘‘new aircraft’’ in 

this context, we mean aircraft that were 

new at the time they were ordered by or 

delivered to the U.S. carrier. U.S. 

carriers will have to comply with 

paragraph (c) for new aircraft ordered 

after the effective date of this Part or 

which are delivered more than one year 

after the effective date of this Part. With 

respect to the purchase of used aircraft, 

in this section and similar places, the 

date the aircraft was originally ordered 

from the manufacturer or initially 

delivered by the manufacturer 

determines whether the aircraft is 

subject to the aircraft accessibility 

requirements of this Part. 

382.63 What are the requirements for 

accessible lavatories? 

As under the present rule, only 

aircraft with more than one aisle must 

have an accessible lavatory. U.S. carriers 

are already subject to these 

requirements for new aircraft they 

ordered after April 5, 1990, or which 

were delivered after April 5, 1992. 

Foreign carriers must comply with 

respect to new aircraft ordered after the 

effective date of the rule or delivered 

more than one year after the effective 

date. 

Also, if a carrier replaces a lavatory on 

an aircraft with more than one aisle it 

must replace the lavatory with an 

accessible unit. A carrier need not have 

more than one accessible lavatory on an 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27653 

aircraft, however. This requirement 

already applies to U.S. carriers for new 

aircraft they ordered after April 5, 1990, 

or which were delivered after April 5, 

1992. It will begin to apply to foreign 

carriers on the effective date of the rule. 

382.65 What are the requirements 

concerning on-board wheelchairs? 

These requirements are also patterned 

on the existing rule. In aircraft with 

more than 60 passenger seats, carriers 

must provide an on-board wheelchair if 

the aircraft has an accessible lavatory. In 

an aircraft that has 60 or more seats that 

does not have an accessible lavatory, the 

carrier must provide an on-board 

wheelchair on the request, with advance 

notice, of a person who can use the 

inaccessible lavatory but cannot reach it 

from his or her seat without use of an 

on-board wheelchair. U.S. carriers are 

already subject to these requirements. 

Foreign carriers must meet these 

requirements by a date one year after the 

rule’s effective date. 

Under the current rule, the 

Department had granted exemptions to 

the requirement for providing a 

requested on-board wheelchair to two 

aircraft models, the ATP and the ATR–

72. These exemptions will remain in 

force under the new rule. 

382.67 What is the requirement for 

priority space in the cabin to store a 

passenger’s wheelchair? 

The most important change in this 

section from the present regulation is 

that carriers are no longer required to 

stow any kind of electric wheelchair in 

the cabin. Only manual wheelchairs are 

required to be stored there. The section 

provides that there must be a priority 

space in the cabin capable of stowing at 

least one adult-size manual wheelchair 

of the stated dimensions. This 

requirement applies to aircraft with 100 

or more passenger seats. The space must 

be in addition to the normal under-seat 

and overhead compartment storage 

made available for carry-on luggage. 

Where a carrier plans to use a closet or 

other storage area to comply with this 

requirement, we emphasize that in 

saying priority storage we mean that the 

space for a wheelchair trumps other 

possible uses for that closet or other 

storage area, including passenger 

hanging bags and crew luggage. This 

requirement to stow a passenger’s 

wheelchair in the cabin is in addition to 

the carrier’s on-board wheelchair as 

required under section 382.65. This 

requirement already applies to U.S. 

carriers for new aircraft they ordered 

after April 5, 1990, or which were 

delivered after April 5, 1992. Foreign 

carriers must comply with respect to 

new aircraft ordered after the effective 

date of the rule or delivered more than 

one year after the effective date. 

382.69 What requirements must 

carriers meet concerning the 

accessibility of videos, DVDs, and other 

audio-visual presentations shown on 

aircraft to individuals who are deaf or 

hard of hearing? 

This section requires carriers to 

ensure that all new videos, DVDs, and 

other audio-visual displays played on 

aircraft for safety purposes, and all such 

audio-visual displays played on aircraft 

for informational purposes that were 

created under the carrier’s control, are 

high-contrast captioned. The captioning 

must be in the predominant language or 

languages in which the carrier 

communicates with passengers on the 

flight. If the carrier communicates 

regularly in more than one language 

(e.g., French and English on a Canadian 

air carrier), then the captioning must be 

in all of those languages. By saying that 

this section applies to ‘‘new’’ videos, we 

mean that carriers are not required to 

retrofit or replace existing videos. 

For purposes of this section, we view 

a video as being controlled by a carrier 

not only if the carrier directly produces 

it, but if a contractor or other party 

produces the video for the carrier’s use, 

with the carrier having significant 

editorial control or approval of the 

video’s content. Note that the provision 

about carrier control of a video applies 

only to informational materials. Safety 

materials must be captioned in all cases. 

The requirements of this section go 

into effect 180 days after the effective 

date of the rule with respect to safety 

videos, and 240 days after the effective 

date of the rule with respect to 

informational videos. This timing is the 

same for both U.S. and foreign carriers. 

The corresponding section of the 

current version of Part 382 permits 

carriers to use a non-video alternative 

only if neither open captioning nor a 

sign language interpreter inset can be 

used without so interfering with the 

video as to render it ineffective. This 

exception is not included in the new 

rule. The overall effective date of the 

rule is one year after the rule is 

published, but, as indicated above, 

carriers are not required to implement 

the provision concerning videos in the 

new rule until 180 to 240 days after that 

overall effective date. Consequently, 

starting on the overall effective date (i.e., 

one year after the rule is published) 

there would be no requirement in effect 

on this subject for U.S. carriers. In order 

to avoid such a situation, as a bridge 

between the current Part 382 and the 

new Part 382 U.S. carriers are required 

to comply with a requirement identical 

to the current rule’s provision on safety 

videos between the effective date of the 

new rule and 180 days after that date. 

382.71 What other aircraft 

accessibility requirements apply to 

carriers? 

This provision, like its counterpart in 

the existing rule, requires maintenance 

of accessibility features in proper 

working order and tells carriers to 

ensure that any replacement or 

refurbishing of cabin features does not 

reduce existing accessibility. 

382.81 For which passengers must 

carriers make seating accommodations? 

382.83 Through what mechanisms do 

carriers make seating accommodations? 

382.85 What seating accommodations 

must carriers make to passengers in 

circumstances not covered by section 

382.81(a) through (d)? 

Carriers must provide a seat that will 

accommodate a passenger with a 

disability other than one listed in 

section 382.81(a)–(d) when the 

passenger self-identifies and requests 

the accommodation in order to readily 

access and use the carrier’s air 

transportation service. 

382.87 What other requirements 

pertain to seating for passengers with a 

disability? 

These provisions are essentially the 

same as their counterparts in the 

existing regulation. The provisions are 

broken out into additional sections for 

clarity. The rule requires carriers to 

ensure an adequate number of seats to 

handle a reasonably expectable demand 

for seating accommodations of various 

kinds and emphasizes the need for 

passengers to self-identify in order to get 

seating accommodations. The 

provisions already apply to U.S. carriers 

and will apply to foreign carriers on the 

effective date of the rule. The one-year 

delay in the effective date of the rule 

following publication should be 

sufficient for foreign carriers to design 

procedures to carry out these 

requirements. 

382.91 What assistance must carriers 

provide to passengers with a disability 

in moving within the terminal? 

With respect to connecting assistance, 

the basic mandate is the same as under 

the existing rule. The arriving carrier 

(i.e., the one that operates the first of the 

two flights that are connecting) has the 

responsibility for connecting assistance. 

It is permissible for the two carriers to 

mutually agree that the carrier operating 

the departing connecting flight (i.e., the 


rwilkins on PROD1PC63 with RULES2
27654 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

second flight of the two) will provide 

this assistance, but the carrier operating 

the arriving flight remains responsible 

under this section for ensuring that the 

assistance is provided. 

The requirements concerning 

movement through the terminal are 

clarified to say that the carrier’s 

assistance responsibility starts at the 

terminal entrance and goes through the 

airport to the gate for a passenger 

arriving to take a flight, and vice-versa 

for a passenger leaving the airport after 

a flight. 

One addition concerns enroute stops 

at the entrance to a rest room. If the 

passenger is being assisted along the 

basic route from entrance to gate or viceversa, or to make a connection, and the 

route goes by a rest room, the person 

assisting the passenger must stop and 

allow the passenger to use the amenity, 

if doing so will not result in 

unreasonable delay. To receive this 

assistance, the passenger must selfidentify. It could also be very helpful to 

a passenger to be able to stop at a 

takeout food or beverage vendor that 

was enroute, if doing so would would 

not result in an unreasonable delay. The 

final rule does not require a stop for this 

purpose, but we believe that airlines 

and airports interested in good customer 

service would should allow a brief stop 

for this purpose. 

Another addition, applicable only in 

U.S. airports, is that a carrier would, on 

request, and in cooperation with the 

airport operator, have to escort a 

passenger to a service animal relief area. 

Finally, carriers would have to assist 

passengers with disabilities in 

transporting their carry-on or gatechecked luggage to or from the gate. 

This obligation would arise only if the 

passenger could make credible verbal 

assurances of his or her inability to 

carry the item due to his or her 

disability. If the passenger’s verbal 

assurances to the carrier are not 

credible, the carrier may require the 

passenger to produce documentation as 

a condition of providing the service. All 

the services mentioned in this 

paragraph would be provided only on 

request of a passenger with a disability. 

At foreign airports, as mentioned in 

connection with the terminal 

accessibility section, airport operators 

may be the basic providers of terminal 

services. The carrier may rely on these 

services, but would have to supplement 

them if they did not fully comply with 

the provisions of this Part. 

382.93 Must carriers offer preboarding 

to passengers with a disability? 

Carrier must offer an opportunity for 

preboarding to passengers with a 

disability who self-identify at the gate as 

needing additional time or assistance to 

board, stow accessibility equipment, or 

be seated. This obligation exists 

regardless of the carriers’ preboarding 

policies for other persons (e.g., families 

with small children). Carriers are not 

required to make general 

announcements about preboarding in 

the gate area specifically for passengers 

with disabilities, where no preboarding 

announcements are made for other types 

of passengers. However, as a matter of 

general nondiscrimination principles, a 

carrier that makes a preboarding 

announcement in the gate area for other 

types or classes of passengers would 

have to make the announcement for 

persons with disabilities as well. 

382.95 What are carriers’ general 

obligations with respect to boarding and 

deplaning assistance? 

Carriers must promptly provide 

assistance to passengers in getting on 

and getting off aircraft. The assistance 

can use a variety of means to 

accomplish the section’s objective; 

examples are listed in paragraph (a). 

This obligation exists at both U.S. and 

foreign airports. 

At U.S. airports with 10,000 or more 

annual enplanements, boarding 

assistance must be provided through the 

use of lifts or ramps, where level-entry 

boarding is not otherwise available 

(paragraph (b)). 

382.97 To which aircraft does the 

requirement to provide boarding and 

deplaning assistance through the use of 

lifts apply? 

At U.S. airports where lift or ramp 

boarding is required, the requirement 

applies to aircraft with 19 or more 

passenger seats, with a few stated 

exceptions. The Department reserves the 

option to expand the list of aircraft to 

which the requirement does not apply, 

if we determine that there is no model 

of boarding device on the market that 

will accommodate the aircraft without a 

significant risk of serious damage to the 

aircraft or injury to persons, or that 

there are internal barriers in the aircraft 

that would preclude passengers who use 

a boarding or aisle chair from reaching 

a non-exit row seat. The Department 

need not amend this rule in order to 

make such a determination. 

382.99 What agreements must carriers 

have with the airports they serve? 

Consistent with the present rule, 

carriers serving U.S. airports must have 

agreements with the airport operators to 

provide, operate, and maintain lifts and 

ramps used to meet the boarding 

requirement of section 382.95(b). This 

requirement already applies to U.S. 

carriers. Foreign carriers would have a 

year from the effective date of the rule 

to enter into such agreements. Foreign 

carriers serving a particular airport may 

be able to join existing agreements 

among the airport and U.S. carriers 

serving it, rather than starting from 

scratch. Foreign carriers would have 

two years from the effective date of the 

rule to ensure that the boarding 

assistance called for in this rule was 

actually being provided. 

Carriers may require passengers 

needing lift assistance for boarding to 

check in for the flight an hour before the 

standard check-in time for the flight. 

382.101 What other boarding and 

deplaning assistance must carriers 

provide? 

When level-entry boarding is not 

required, carriers must still take 

whatever actions are necessary to assist 

people with disabilities to get on and off 

aircraft. For example, boarding and 

deplaning assistance using lifts is not 

required at smaller U.S. airports and 

foreign airports, or when severe weather 

or unexpected mechanical breakdowns 

prevent the use of a lift. In those 

circumstances, airlines must still 

provide enplaning and deplaning 

assistance by other available means, 

such as by placing the passenger in a 

boarding chair and carrying him or her 

up the boarding stairs unless the design 

of the aircraft (e.g., the Fairchild Metro, 

the Jetstream 31 and 32, the Beech 1900 

(C and D models) and the Embraer 

EMB–120) makes this impossible. The 

only limitation on the means of 

providing this assistance is that handcarrying by carrier personnel as defined 

in that section is prohibited, except in 

situations of an emergency evacuation 

where no other timely means of 

assistance is available. 

382.103 May a carrier leave a 

passenger unattended in a wheelchair 

or other device? 

The carrier and its contractors may 

not leave a passenger unattended in a 

wheelchair or other device in which the 

passenger is not independently mobile 

for more than 30 minutes. 

382.105 What is the responsibility of 

carriers at foreign airports at which 

airport operators have responsibility for 

enplaning, deplaning, or connecting 

assistance? 

This section reemphasizes that at a 

foreign airport where airport operators 

have this responsibility, both U.S and 

foreign carriers can rely on the airport 

operator’s services. If these services do 

not fully meet the requirements of this 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27655 

Part, then the carrier must supplement 

the airport operator’s services to ensure 

that the requirements are met. If a 

carrier believes that it is legally 

precluded from supplementing the 

airport operator’s services, it can apply 

for a conflict of laws waiver. 

382.111 What services must carriers 

provide to passengers with a disability 

on board the aircraft? 

382.113 What services are carriers not 

required to provide to passengers with a 

disability on board the aircraft? 

These sections are parallel to their 

counterparts in the existing rule. 

Personal care services like assistance in 

actual eating and drinking are not 

required, but more limited assistance 

such as assisting with the opening of 

packages is required. 

382.115 What requirements apply to 

on-board safety briefings? 

This provision also parallels its 

counterpart in the existing rule. 

382.117 Must carriers permit 

passengers with a disability to travel 

with service animals? 

This section has been made more 

detailed than the current rule’s service 

animal provision, in response to the 

comments discussed earlier in the 

preamble. Appendix A provides further 

guidance to carriers and passengers 

concerning service animals. 

The general rule is that service 

animals must be allowed to accompany 

their users. Carriers cannot deny 

transportation to a service animal 

because its presence may offend or 

annoy other passengers (e.g., by causing 

an allergic reaction that does not rise to 

the level of a disability or by offending 

someone’s cultural or personal 

preferences). When another passenger is 

uncomfortable with proximity to a 

service animal, the carrier should do its 

best to satisfy all passengers by offering 

the uncomfortable passenger the 

opportunity to sit elsewhere. Forcing 

the passenger with the service animal to 

move to another seat to make another 

passenger more comfortable, let alone 

denying transportation in the cabin to 

the service animal or its user, is not an 

option. 

If a flight segment is scheduled to take 

eight hours or more, the carrier may 

require documentation that the service 

animal will not need to relieve itself or 

can do so in a way that will not create 

a health or sanitation issue on the flight. 

The only acceptable reason for not 

allowing a service animal to accompany 

its user at the user’s seat is that the 

animal will block a space that, 

according to FAA or equivalent foreign 

safety regulations, must remain 

unobstructed. If, for this reason, the 

animal cannot be accommodated at the 

user’s seat, the carrier must allow the 

passenger and the animal to sit 

elsewhere on the aircraft, if an 

appropriate place exists. 

There are new, more detailed 

procedures for the carriage of emotional 

support and psychiatric service animals. 

The carrier may require the passenger to 

provide current documentation from a 

mental health professional caring for the 

passenger that the passenger has a 

specific, recognized mental or emotional 

disability and that the passenger needs 

to be accompanied by the specific 

emotional support or psychiatric service 

animal in question, either on the flight 

or at the passenger’s destination. 

Certain unusual service animals need 

never be accommodated (e.g., rodents, 

snakes). Other uncommonly used 

animals (e.g., miniature horses, 

monkeys) can travel as service animals 

on U.S. carriers, but the carrier can 

decide to exclude a particular animal on 

a case-by-case basis if it is too large or 

heavy to be accommodated on a given 

flight. Foreign carriers are not required 

to carry service animals other than dogs. 

We will seek further comment in the 

SNPRM on whether there are safetyrelated reasons for excluding animals 

that may be specific to foreign carriers. 

Near the end of this preamble, the 

Department has included a revised 

guidance document containing further 

discussion of service animal matters. 

With the exception of changes discussed 

earlier in the preamble, this guidance 

document incorporates the guidance the 

Department issued on service animal 

matters in May 2003. As guidance, it 

does not have independent mandatory 

effect, but rather describes how the 

Department understands the 

requirements of section 382.117. It also 

makes suggestions and 

recommendations concerning how 

carriers can best accommodate service 

animals and their users. 

The guidance document notes that 

carriers can properly apply the same 

policies to ‘‘psychiatric service animals’’

as they do for emotional support 

animals. This is because carriers and the 

Department have encountered instances 

of attempted abuse of service animal 

transportation policies by persons 

traveling with animals in both 

categories. Should the Department 

encounter a pattern of abuse concerning 

service animals in other categories, we 

can consider additional safeguards with 

respect to those categories as well. 

We would call also readers’’ attention 

to recent DOT guidance concerning the 

transportation of service animals into 

the United Kingdom. ‘‘Guidance 

Concerning the Carriage of Services 

Animals in Air Transportation Into the 

United Kingdom’’ (February 26, 2007) 

discusses the transportation of service 

dogs and cats into the U.K. via U.S. and 

foreign carriers. To transport service 

animals into the U.K., carriers must 

participate in the U.K. Pet Travel 

Scheme. A supplementary DOT 

guidance document, ‘‘Carriage of 

Service Animals in Air Transportation 

Into the United Kingdom and Foreign 

Health Documentation Requirements for 

Service Animals in Air Transportation’’

(July 17, 2007), provides further 

information for carriers and the public 

concerning carriage of, and 

documentation needed for, carriage of 

service animals into countries other 

than the U.K. 

These documents may be found on 

the Department’s Aviation Consumer 

Protection Division website. 

382.119 What information must 

carriers give individuals with vision or 

hearing impairment on aircraft? 

This section requires that carriers 

ensure that passengers with a disability 

who identify themselves as needing 

visual or hearing assistance have 

prompt access to the same information 

provided to other passengers on the 

aircraft. In providing this information, 

carriers are not required to take steps 

that would interfere with crewmembers’

safety duties as set forth in FAA and 

applicable foreign regulations. 

The covered information includes, but 

is not limited to, information 

concerning flight safety, procedures for 

takeoff and landing, flight delays, 

schedule or aircraft changes that affect 

the travel of persons with disabilities, 

diversion to a different airport, 

scheduled departure and arrival time, 

boarding information, weather 

conditions at the flight’s destination, 

beverage and menu information, 

connecting gate assignments, baggage 

claim (e.g., at which carousel an arriving 

flight’s bags may be retrieved), 

individuals being paged by airlines, and 

emergencies (e.g., fire or bomb threat). 

The requirement of this section applies 

whether the information is provided to 

passengers by the carrier in the aircraft 

or in the terminal (e.g., the gate area). 

We intend to require carriers to 

provide information that a reasonable 

consumer would deem important, even 

if it falls outside the list in § 382.119(b). 

Conversely, carriers are not required to 

provide information that a reasonable 

consumer would not deem important. 

For example, we do not consider 

information on sightseeing at the flight’s 

destination or an announcement that the 


rwilkins on PROD1PC63 with RULES2
27656 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

aircraft is flying over the Grand Canyon 

to be covered by this rule. 

382.121 What mobility aids and other 

assistive devices may passengers with a 

disability bring into the aircraft cabin? 

Passengers may bring manual, but not 

electric wheelchairs, other mobility aids 

(e.g., canes, including those used by 

blind passengers), and other assistive 

devices (e.g., POCs), as well as 

prescription medications and any 

medical devices needed to administer 

them (e.g., syringes, auto-injectors), as 

long as they comply with applicable 

safety, security and hazardous materials 

rules. These devices and aids cannot be 

counted against the airline’s carry-on 

limits. 

382.123 What are the requirements 

concerning priority cabin stowage for 

wheelchairs and other assistive devices? 

This section is related to the 

requirements for priority stowage spaces 

in section 382.67 and an opportunity to 

preboard in section 382.93. A passenger 

who takes advantage of the offer to 

preboard can stow his or her wheelchair 

in the aircraft’s priority stowage area, 

with priority over other passengers’

items brought onto the aircraft at the 

same airport, consistent with applicable 

safety and security regulatory 

requirements. The passenger’s 

wheelchair also takes priority over items 

that may be stowed in the space by the 

carrier and its personnel, such as onboard wheelchairs or crew luggage, even 

if these items came on board at an 

earlier stop of the plane’s itinerary. If 

such items are in the space when a 

wheelchair user comes on board, they 

must be moved to accommodate the 

passenger’s wheelchair. Carriers must 

also offer this opportunity for other 

assistive devices, though wheelchairs 

retain priority. Passengers with 

wheelchairs or other assistive devices 

who do not preboard must still be 

allowed to use the priority stowage 

areas for their devices, but their use of 

the space is on a first-come-first-served 

basis with respect to other passengers’

items. 

Some U.S. carriers have used the socalled ‘‘seat-strapping’’ method of 

securing passengers’ wheelchairs in the 

cabin, usually in situations in which, 

contrary to the existing rule in some 

cases, aircraft did not have closets or 

other spaces capable of accommodating 

the wheelchairs. The Department does 

not believe that this is a good long-term 

approach to carrying passenger 

wheelchairs in the cabin, especially in 

these times of frequently full flights. 

The Department emphasizes that 

providing priority stowage spaces as 

required by section 382.67 is essential. 

To limit the ability of carriers to use the 

seat-strapping method as a way of 

getting around the designated priority 

stowage requirement, carriers may not 

use the seat-strapping method in any 

aircraft ordered after the effective date 

of this Part or delivered more than two 

years after the rule’s effective date. 

382.125 What procedures do carriers 

follow when wheelchairs, other mobility 

aids, and other assistive devices must be 

stowed in the cargo compartment? 

As under the current rule, electric 

wheelchairs and other devices that are 

not required to be stowed in the cabin 

must be transported in the cargo 

compartment. These items have priority 

over other passengers’ items. If other 

passengers’ items are bumped as a 

result, the carrier must use its best 

efforts to ensure that they are delivered 

to the passenger’s destination on the 

carrier’s next flight. This may be a flight 

within an hour or two with respect to 

a domestic destination; it could be a 

matter of days with respect to some 

carriers’ international flights. 

382.127 What procedures apply to the 

stowage of battery-powered mobility 

aids? 

This provision does not make 

substantive changes from its counterpart 

in the existing rule, except to say that 

carriers may require a passenger 

wishing to check his or her device to 

check in an hour before the standard 

check-in time for the flight. DOT’s 

Pipeline and Hazardous Materials Safety 

Administration (PHMSA) has issued a 

special permit which may affect 

procedures for handling power 

wheelchairs (see PHMSA ‘‘Special 

Permit 14548’’ dated October 5, 2007, 

and revised on October 30, 2007.) 

382.129 What other requirements 

apply when passengers’ wheelchairs, 

other mobility aids, and other assistive 

devices must be disassembled for 

stowage? 

382.131 Do baggage liability limits 

apply to mobility aids and other 

assistive devices? 

These provisions are substantively the 

same as their counterparts in the 

existing rule. Carriers and passengers 

should note that section 382.131 applies 

only to domestic U.S. travel. Baggage 

liability limits for international travel, 

including flights of U.S. carriers, are 

governed by the Montreal Convention 

and other international agreements, 

rather than by 14 CFR Part 254. 

382.133 What are the requirements 

concerning the evaluation and use of 

passenger-owned electronic devices that 

assist passengers with respiration in the 

cabin during flight and do not contain 

hazardous materials? 

The basic point of this section is that, 

with minor exceptions, carriers must 

permit passengers with a disability to 

use a portable oxygen concentrator 

(POC) and other respiratory assistive 

devices in the cabin. Such devices must 

meet FAA or foreign government 

requirements, as applicable, and display 

a manufacturer’s label that indicates 

that the device meets the FAA or foreign 

government requirements. 

When a passenger asks a carrier about 

bringing his or her electronic respiratory 

assistive device, the carrier must tell the 

passenger about the requirements for 

carrying such a device on board, 

touching on such matters as meeting 

FAA requirements, having the 

manufacturer’s label, bringing an 

adequate number of fully charged 

batteries, any check-in or advance 

notice requirements, medical certificate 

requirements, and the expected duration 

of the flight. Carriers may insist on 

passengers bringing on board fully 

charged batteries adequate to last for 

150 percent of the expected maximum 

flight duration. If a passenger does not 

comply with the conditions outlined in 

the rule, the carrier can deny him or her 

transportation on the flight. 

382.141 What training are carriers 

required to provide for their personnel? 

This section continues, for the most 

part, the requirements of the existing 

rule. There are a few differences, in 

view of the rule’s application to foreign 

carriers. The requirement to consult 

with disability groups now focuses on 

disability groups in the carrier’s home 

country. If such groups are not 

available, consulting with individuals 

with disabilities or disability groups in 

other countries is appropriate. 

382.143 When must carriers complete 

training for their personnel? 

Employees of U.S. carriers that have 

already received initial training must be 

trained on changes to Part 382 at their 

next recurrent training after the rule 

goes into effect or within one year after 

the effective date of the rule, whichever 

comes first. New crewmembers have to 

be trained before they assume their 

duties. Other employees new to a 

position must be trained within 60 days 

after starting their jobs. Current 

employees of foreign carriers that serve 

flights covered by the rule must be 

trained within a year after the effective 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27657 

date of the rule. After that date, new 

crewmembers must be trained before 

assuming their duties, and other new 

employees within 60 days after when 

they assume their duties. For employees 

who fall in between these categories—

those who start work during the first 

year after the effective date of the rule—

training must occur before the second 

anniversary of the effective date of the 

rule or 60 days from their start date, 

whichever is later. 

While the rule provides a reasonable 

amount of time for employees to be 

trained, carriers are nevertheless 

responsible for violations that occur 

between the effective date of the rule 

and the training deadlines. We strongly 

encourage carriers to expedite their 

training schedules so that as many 

employees as possible are trained by the 

final rule’s effective date. 

To ensure that foreign carriers have 

resource persons to deal with disability 

issues as soon as possible, foreign 

carriers will have to complete training 

for CROs, and U.S. carriers will have to 

complete training for CROs about 

changes in Part 382, by the effective 

date of the rule. Given the critical role 

played by CROs in carriers’

implementation of the rule, it is 

essential for CROs to be trained before 

the rule becomes effective. U.S. carriers 

have been subject to requirements to 

train CROs under the existing rule, and 

additional training for these CROs 

should be limited in scope, since it 

would need only to cover changes 

between the existing rule and this final 

rule. Since foreign carriers will have a 

year between the publication of the rule 

and its effective date, they too should 

have adequate time to train CROs by the 

effective date of the rule. 

382.145 What records concerning 

training must carriers retain? 

Carriers must maintain records of the 

procedures they use to comply with this 

rule, including those portions of 

manuals and other instructional 

materials concerning Part 382 

compliance, and individual employee 

training records. Training records must 

be retained for three years. Carriers are 

not to send these materials to DOT for 

review, but it must be made available to 

the Department if we ask to look at it. 

If we determine that something in these 

materials needs to be changed in the 

interest of compliance with the rule, the 

carrier must make the changes the 

Department directs. 

382.151 What are the requirements for 

providing Complaints Resolution 

Officials? 

The CRO requirement is essentially 

the same as under the current rule. U.S. 

carriers must make a CRO available—

either in person or via telephone—at 

each airport the carrier serves, at all 

times the carrier is operating at the 

airport. Foreign carriers must make a 

CRO available at each airport serving 

flights the carrier operates that begin or 

end at a U.S. airport. The Department 

realizes that, in some cases, carriers 

operate covered flights infrequently. For 

example, a foreign carrier may fly from 

Dulles to a foreign airport only at 5 p.m. 

on Mondays and Thursdays. On other 

days, and on Monday and Thursday 

mornings for that matter, the foreign 

airline would not have to make a CRO 

available to persons at Dulles. CRO 

services would have to be made 

available in languages in which the 

carrier provides services to the general 

public. 

This rule clarifies that carriers are 

responsible for making passengers 

aware of the availability of a CRO in 

some circumstances even if the 

passenger does not say ‘‘I want to talk 

to a CRO.’’ If a passenger raises a 

disability-related concern, and the 

carrier’s personnel do not immediately 

resolve the issue to the customer’s 

satisfaction, the carrier must say, in 

effect, ‘‘We have a CRO available that 

you can talk to about this problem if you 

want to. The CRO is our resource person 

who can help solve disability-related 

issues. Here is where you can find, or 

call, our CRO.’’

CROs must have authority to 

definitively resolve complaints. This 

means they must have the power to 

overrule decisions of other carrier 

personnel, except that they are not 

required to have authority to 

countermand a safety decision of a 

pilot-in-command of an aircraft. Of 

course, even decisions of pilots, if they 

later are shown to be in noncompliance 

with this rule, can subject the carrier to 

DOT enforcement action. 

382.153 What actions do CROs take on 

complaints? 

382.155 How must carriers respond to 

written complaints? 

CROs are to promptly take action to 

resolve complaints made to them. In 

some cases, CROs can take quick action 

to prevent a potential violation (e.g., a 

threatened denial of service) from 

becoming a real violation. If a CRO 

determines that a violation has already 

occurred, the CRO must write the 

complainant and describe the carrier’s 

corrective action. Of course, not all 

complaints have merit, and if the CRO 

decides that a violation did not occur, 

the CRO must also write the 

complainant and explain this 

determination. CRO responses are due 

30 days from the date of the complaint. 

Often, complaints to carriers may be 

made in writing (letters, e-mails etc.). 

These complaints may or may not have 

been processed through the carrier’s 

CRO, though they need to state whether 

a CRO was involved. Except for 

complaints DOT refers to a carrier, the 

carrier is not required to respond to a 

complaint transmitted more than 45 

days after the incident in question. The 

carrier must respond within 30 days. 

382.157 What are carriers obligations 

for recordkeeping and reporting on 

disability-related complaints? 

This section is identical to the current 

regulatory provision on disabilityrelated complaint reporting. The 

language referring to carriers ‘‘covered 

by this Part’’ is not intended to change 

the scope of the existing provision, 

which refers to carriers conducting 

passenger operations with at least one 

aircraft having a designed seating 

capacity of more than 60 seats on flights 

to, from, or in the United States. 

382.159 How are complaints filed with 

DOT? 

Changes from the corresponding 

provision of the existing regulation 

include a time frame for filing informal 

complaints, a change of postal address 

for sending an informal complaint by 

mail, and the Web address for filing an 

informal complaint on the Air 

Consumer Web site. 

Appendix A—Disability Complaint 

Reporting Form 

This appendix contains the form 

carriers use to submit disability-related 

complaint data. 

Appendix B—Cross-Reference Table 

This appendix provides, for the 

convenience of readers, information on 

where material found in a given section 

of the existing version of Part 382 is 

found in the new version of Part 382. 

Guidance Concerning Service Animals 

Introduction 

In 1990, the U.S. Department of 

Transportation (DOT) promulgated the 

official regulations implementing the 

Air Carrier Access Act (ACAA). Those 

rules are entitled Nondiscrimination on 

the Basis of Disability in Air Travel (14 

CFR part 382). Since then the number of 

people with disabilities traveling by air 

has grown steadily. This growth has 


rwilkins on PROD1PC63 with RULES2
27658 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

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

4See Glossary for definition of this and other 

terms. 

increased the demand for air 

transportation accessible to all people 

with disabilities and the importance of 

understanding DOT’s regulations and 

how to apply them. This document 

expands on an earlier DOT guidance 

document published in 1996,3 which 

was based on an earlier Americans with 

Disabilities Act (ADA) service animal 

guide issued by the Department of 

Justice (DOJ) in July 1996. The purpose 

of this document is to aid airline 

employees and people with disabilities 

in understanding and applying the 

ACAA and the provisions of Part 382 

with respect to service animals in 

determining: 

(1) Whether an animal is a service 

animal and its user a qualified 

individual with a disability; 

(2) How to accommodate a qualified 

person with a disability with a service 

animal in the aircraft cabin; and 

(3) When a service animal legally can 

be refused carriage in the cabin. 

This guidance will also be used by 

Department of Transportation staff in 

reviewing the implementation of 

§ 382.117 of this Part by carriers. 

Background 

The 1996 DOT guidance document 

defines a service animal as ‘‘any guide 

dog, signal dog, or other animal 

individually trained to provide 

assistance to an individual with a 

disability. If the animal meets this 

definition, it is considered a service 

animal regardless of whether it has been 

licensed or certified by a state or local 

government.’’ This document refines 

DOT’s previous definition of service 

animal 4 by making it clear that animals 

that assist persons with disabilities by 

providing emotional support qualify as 

service animals and ensuring that, in 

situations concerning emotional support 

animals and psychiatric service animals, 

the authority of airline personnel to 

require documentation of the 

individual’s disability and the medical 

necessity of the passenger traveling with 

the animal is understood. 

Today, both the public and people 

with disabilities use many different 

terms to identify animals that can meet 

the legal definition of ‘‘service animal.’’

These range from umbrella terms such 

as ‘‘assistance animal’’ to specific labels 

such as ‘‘hearing,’’ ‘‘signal,’’ ‘‘seizure 

alert,’’ ‘‘psychiatric service,’’ ‘‘emotional 

support’’ animal, etc., that describe how 

the animal assists a person with a 

disability. 

When Part 382 was first promulgated, 

most service animals were guide or 

hearing dogs. Since then, a wider 

variety of animals (e.g. cats, monkeys, 

etc.) have been individually trained to 

assist people with disabilities. Service 

animals also perform a much wider 

variety of functions than ever before 

(e.g., alerting a person with epilepsy of 

imminent seizure onset, pulling a 

wheelchair, assisting persons with 

mobility impairments with balance). 

These developments can make it 

difficult for airline employees to 

distinguish service animals from pets, 

especially when a passenger does not 

appear to be disabled, or the animal has 

no obvious indicators that it is a service 

animal. Passengers may claim that their 

animals are service animals at times to 

get around airline policies that restrict 

the carriage of pets. Clear guidelines are 

needed to assist airline personnel and 

people with disabilities in knowing 

what to expect and what to do when 

these assessments are made. 

Since airlines also are obliged to 

provide all accommodations in 

accordance with FAA safety regulations, 

educated consumers help assure that 

airlines provide accommodations 

consistent with the carriers’ safety 

duties and responsibilities. Educated 

consumers also assist the airline in 

providing them the services they want, 

including accommodations, as quickly 

and efficiently as possible. 

General Requirements of Part 382 

In a nutshell, the main requirements 

of Part 382 regarding service animals 

are: 

• Carriers shall permit dogs and other 

service animals used by persons with 

disabilities to accompany the persons 

on a flight. See § 382.117(a). 

➣ Carriers shall accept as evidence 

that an animal is a service animal 

identifiers such as identification cards, 

other written documentation, presence 

of harnesses, tags or the credible verbal 

assurances of a qualified individual 

with a disability using the animal. 

➣ Carriers shall permit a service 

animal to accompany a qualified 

individual with a disability in any seat 

in which the person sits, unless the 

animal obstructs an aisle or other area 

that must remain unobstructed in order 

to facilitate an emergency evacuation or 

to comply with FAA regulations. 

• If a service animal cannot be 

accommodated at the seat location of 

the qualified individual with a 

disability whom the animal is 

accompanying, the carrier shall offer the 

passenger the opportunity to move with 

the animal to a seat location in the same 

class of service, if present on the 

aircraft, where the animal can be 

accommodated, as an alternative to 

requiring that the animal travel in the 

cargo hold (see § 382.117(c)). 

• Carriers shall not impose charges 

for providing facilities, equipment, or 

services that are required by this Part to 

be provided to qualified individuals 

with a disability (see § 382.31). 

Two Steps for Airline Personnel 

To determine whether an animal is a 

service animal and should be allowed to 

accompany its user in the cabin, airline 

personnel should: 

1. Establish whether the animal is a 

pet or a service animal, and whether the 

passenger is a qualified individual with 

a disability; and then 

2. Determine if the service animal 

presents either: 

• A ‘‘direct threat to the health or 

safety of others,’’ or 

• A significant threat of disruption to 

the airline service in the cabin (i.e., a 

‘‘fundamental alteration’’ to passenger 

service). See § 382.19(c). 

Service Animals 

How do I know it’s a service animal and 

not a pet? 

Remember: In most situations the key 

is training. Generally, a service animal 

is individually trained to perform 

functions to assist the passenger who is 

a qualified individual with a disability. 

In a few extremely limited situations, an 

animal such as a seizure alert animal 

may be capable of performing functions 

to assist a qualified person with a 

disability without individualized 

training. Also, an animal used for 

emotional support need not have 

specific training for that function. 

Similar to an animal that has been 

individually trained, the definition of a 

service animal includes: An animal that 

has been shown to have the innate 

ability to assist a person with a 

disability; or an emotional support 

animal. 

These five steps can help one 

determine whether an animal is a 

service animal or a pet: 

1. Obtain credible verbal assurances: 

Ask the passenger: ‘‘Is this your pet?’’ If 

the passenger responds that the animal 

is a service animal and not a pet, but 

uncertainty remains about the animal, 

appropriate follow-up questions would 

include: 

➣ ‘‘What tasks or functions does your 

animal perform for you?’’ or 

➣ ‘‘What has it been trained to do for 

you?’’ or 

➣ ‘‘Would you describe how the 

animal performs this task (or function) 

for you?’’


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27659 

5Service animal users typically refer to the 

person who accompanies the animal as the 

‘‘handler.’’

• As noted earlier, functions include, 

but are not limited to: 

A. Helping blind or visually impaired 

people to safely negotiate their 

surroundings; 

B. Alerting deaf and hard-of-hearing 

persons to sounds; 

C. Helping people with mobility 

impairments to open and close doors, 

retrieve objects, transfer from one seat to 

another, maintain balance; or 

D. Alert or respond to a disabilityrelated need or emergency (e.g., seizure, 

extreme social anxiety or panic attack). 

• Note that to be a service animal that 

can properly travel in the cabin, the 

animal need not necessarily perform a 

function for the passenger during the 

flight. For example, some dogs are 

trained to help pull a passenger’s 

wheelchair or carry items that the 

passenger cannot readily carry while 

using his or her wheelchair. It would 

not be appropriate to deny 

transportation in the cabin to such a 

dog. 

• If a passenger cannot provide 

credible assurances that an animal has 

been individually trained or is able to 

perform some task or function to assist 

the passenger with his or her disability, 

the animal might not be a service 

animal. In this case, the airline 

personnel may require documentation 

(see Documentation below). 

• There may be cases in which a 

passenger with a disability has 

personally trained an animal to perform 

a specific function (e.g., seizure alert). 

Such an animal may not have been 

trained through a formal training 

program (e.g., a ‘‘school’’ for service 

animals). If the passenger can provide a 

reasonable explanation of how the 

animal was trained or how it performs 

the function for which it is being used, 

this can constitute a ‘‘credible verbal 

assurance’’ that the animal has been 

trained to perform a function for the 

passenger. 

2. Look for physical indicators on the 

animal: Some service animals wear 

harnesses, vests, capes or backpacks. 

Markings on these items or on the 

animal’s tags may identify it as a service 

animal. It should be noted, however, 

that the absence of such equipment does 

not necessarily mean the animal is not 

a service animal. Similarly, the presence 

of a harness or vest on a pet for which 

the passenger cannot provide such 

credible verbal assurance may not be 

sufficient evidence that the animal is, in 

fact, a legitimate service animal. 

3. Request documentation for service 

animals other than emotional support 

or psychiatric service animals: The law 

allows airline personnel to ask for 

documentation as a means of verifying 

that the animal is a service animal, but 

DOT’s rules tell carriers not to require 

documentation as a condition for 

permitting an individual to travel with 

his or her service animal in the cabin 

unless a passenger’s verbal assurance is 

not credible. In that case, the airline 

may require documentation as a 

condition for allowing the animal to 

travel in the cabin. This should be an 

infrequent situation. The purpose of 

documentation is to substantiate the 

passenger’s disability-related need for 

the animal’s accompaniment, which the 

airline may require as a condition to 

permit the animal to travel in the cabin. 

Examples of documentation include a 

letter from a licensed professional 

treating the passenger’s condition (e.g., 

physician, mental health professional, 

vocational case manager, etc.) 

4. Require documentation for 

emotional support and psychiatric 

service animals: With respect to an 

animal used for emotional support 

(which need not have specific training 

for that function but must be trained to 

behave appropriately in a public 

setting), airline personnel may require 

current documentation (i.e., not more 

than one year old) on letterhead from a 

licensed mental health professional 

stating (1) that the passenger has a 

mental health-related disability listed in 

the Diagnostic and Statistical Manual of 

Mental Disorders (DSM IV); (2) that 

having the animal accompany the 

passenger is necessary to the passenger’s 

mental health or treatment; (3) that the 

individual providing the assessment of 

the passenger is a licensed mental 

health professional and the passenger is 

under his or her professional care; and 

(4) the date and type of the mental 

health professional’s license and the 

state or other jurisdiction in which it 

was issued. Airline personnel may 

require this documentation as a 

condition of permitting the animal to 

accompany the passenger in the cabin. 

The purpose of this provision is to 

prevent abuse by passengers that do not 

have a medical need for an emotional 

support animal and to ensure that 

passengers who have a legitimate need 

for emotional support animals are 

permitted to travel with their service 

animals on the aircraft. Airlines are not 

permitted to require the documentation 

to specify the type of mental health 

disability, e.g., panic attacks. 

There is a separate category of service 

animals generally known as 

‘‘psychiatric service animals.’’ These 

animals may be trained by their owners, 

sometimes with the assistance of a 

professional trainer, to perform tasks 

such as fetching medications, reminding 

the user to take medications, helping 

people with balance problems caused by 

medications or an underlying condition, 

bringing a phone to the user in an 

emergency or activating a specially 

equipped emergency phone, or acting as 

a buffer against other people crowding 

too close. As with emotional support 

animals, it is possible for this category 

of animals to be a source of abuse by 

persons attempting to circumvent 

carrier rules concerning transportation 

of pets. Consequently, it is appropriate 

for airlines to apply the same advance 

notice and documentation requirements 

to psychiatric service animals as they do 

to emotional support animals. 

5. Observe behavior of animals: 

Service animals are trained to behave 

properly in public settings. For 

example, a properly trained guide dog 

will remain at its owner’s feet. It does 

not run freely around an aircraft or an 

airport gate area, bark or growl 

repeatedly at other persons on the 

aircraft, bite or jump on people, or 

urinate or defecate in the cabin or gate 

area. An animal that engages in such 

disruptive behavior shows that it has 

not been successfully trained to 

function as a service animal in public 

settings. Therefore, airlines are not 

required to treat it as a service animal, 

even if the animal performs an assistive 

function for a passenger with a 

disability or is necessary for a 

passenger’s emotional well-being. 

What about service animals in training? 

Part 382 requires airlines to allow 

service animals to accompany their 

handlers 5 in the cabin of the aircraft, 

but airlines are not required otherwise 

to carry animals of any kind either in 

the cabin or in the cargo hold. Airlines 

are free to adopt any policy they choose 

regarding the carriage of pets and other 

animals (e.g., search and rescue dogs) 

provided that they comply with other 

applicable requirements (e.g., the 

Animal Welfare Act). Although ‘‘service 

animals in training’’ are not pets, the 

ACAA does not include them, because 

‘‘in training’’ status indicates that they 

do not yet meet the legal definition of 

service animal. However, like pet 

policies, airline policies regarding 

service animals in training vary. Some 

airlines permit qualified trainers to 

bring service animals in training aboard 

an aircraft for training purposes. 

Trainers of service animals should 

consult with airlines, and become 

familiar with their policies. 


rwilkins on PROD1PC63 with RULES2
27660 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

6See Glossary. 

What about a service animal that is not 

accompanying a qualified individual 

with a disability? 

When a service animal is not 

accompanying a passenger with a 

disability, the airline’s general policies 

on the carriage of animals usually apply. 

Airline personnel should know their 

company’s policies on pets, service 

animals in training, and the carriage of 

animals generally. Individuals planning 

to travel with a service animal other 

than their own should inquire about the 

applicable policies in advance. 

Qualified Individuals with Disabilities 6

How do I know if a passenger is a 

qualified individual with a disability 

who is entitled to bring a service animal 

in the cabin of the aircraft if the 

disability is not readily apparent? 

• Ask the passenger about his or her 

disability as it relates to the need for a 

service animal. Once the passenger 

identifies the animal as a service 

animal, you may ask, ‘‘How does your 

animal assist you with your disability?’’

Avoid the question ‘‘What is your 

disability?’’ as this implies you are 

asking for a medical label or the cause 

of the disability, which is intrusive and 

inconsistent with the intent of the 

ACAA. Remember, Part 382 is intended 

to facilitate travel by people with 

disabilities by requiring airlines to 

accommodate them on an individual 

basis. 

• Ask the passenger whether he or 

she has documentation as a means of 

verifying the medical necessity of the 

passenger traveling with the animal. 

Keep in mind that you can ask but 

cannot require documentation as proof 

of service animal status UNLESS (1) a 

passenger’s verbal assurance is not 

credible and the airline personnel 

cannot in good faith determine whether 

the animal is a service animal without 

documentation, or (2) a passenger 

indicates that the animal is to be used 

as an emotional support or psychiatric 

service animal. 

• Using the questions and other 

factors above, you must decide whether 

it is reasonable to believe that the 

passenger is a qualified individual with 

a disability, and the animal is a service 

animal. 

Denying a Service Animal Carriage in 

the Cabin 

What do I do if I believe that carriage 

of the animal in the cabin of the aircraft 

would inconvenience non-disabled 

passengers? 

Part 382 requires airlines to permit 

qualified individuals with a disability to 

be accompanied by their service animals 

in the cabin, as long as the animals do 

not (1) pose a direct threat to the health 

or safety of others (e.g., animal displays 

threatening behaviors by growling, 

snarling, lunging at, or attempting to 

bite other persons on the aircraft) or (2) 

cause a significant disruption in cabin 

service (i.e., a ‘‘fundamental alteration’’

to passenger service). Offense or 

inconvenience to other passengers (e.g., 

a cultural or personal discomfort with 

being in proximity to certain kinds of 

animals, allergies that do not rise to the 

level of a disability, reasonable 

limitations on foot space) is not 

sufficient grounds to deny a service 

animal carriage in the cabin. However, 

carriers should try to accommodate the 

wishes of other passengers in this 

situation, such as by relocating them to 

a different part of the aircraft. 

What do I do if a passenger claims that 

he or she is allergic to someone else’s 

service animal? 

• First, remember that not all allergies 

rise to the level of a disability. The fact 

that someone may have a stuffy nose or 

sneeze when exposed to dog or cat 

dander does not necessarily mean that 

the individual has a disability. 

• If a passenger expresses discomfort 

or annoyance because of an allergic 

reaction to the presence of a service 

animal nearby, you can offer the 

uncomfortable passenger the 

opportunity to change to a seat further 

away from the animal. Passengers who 

state they have allergies or other animal 

aversions should be located as far away 

from the service animal as practicable. 

Each individual’s needs should be 

addressed to the fullest extent possible 

under the circumstances and in 

accordance with the requirements of 

Part 382 and company policy. 

• If a passenger provides credible 

verbal assurances, or medical 

documentation, that he or she has an 

allergy to a particular sort of animal that 

rises to the level of a disability (e.g., 

produces shock or respiratory distress 

that could require emergency or 

significant medical treatment), and there 

is a service animal of that kind seated 

nearby, the carrier should try to place as 

much distance as possible between the 

service animal and the individual with 

the allergy. Depending on where the 

passengers are initially seated, this 

could involve moving both passengers. 

For example, if both are seated toward 

the center of the cabin, one could be 

moved to the front and the other to the 

back. 

• It is unlikely that the mere presence 

of an animal in the same cabin would, 

by itself, even if located at a distance 

from an allergic passenger, produce a 

severe allergic reaction rising to the 

level of a disability. However, if there 

was strong evidence that this was the 

case, it could be necessary to rebook one 

of the passengers on another flight. 

Since one disability does not trump 

another, the carrier should consider a 

disability-neutral means of determining 

which passenger would have to be 

rebooked (e.g., which passenger made 

the earlier reservation). We emphasize 

that we expect any such situation to be 

extremely rare, and that carriers should 

not rebook a passenger absent strong 

evidence that the mere presence of an 

animal in the cabin, even in a location 

distant from the allergic passenger, 

would produce an allergic reaction 

rising to the level of a disability. 

• There may be situations in which, 

with respect to a passenger who brings 

a very serious potential allergy situation 

to the attention of your personnel, it is 

appropriate to seek a medical certificate 

for the passenger. 

What do I do if I believe that a 

passenger’s assertions about having a 

disability or a service animal are not 

credible? 

• Ask if the passenger has 

documentation that satisfies the 

requirements for determining that the 

animal is a service animal (see 

discussion of ‘‘Documentation’’ above). 

• If the passenger has no documents, 

then explain to the passenger that the 

animal cannot be carried in the cabin, 

because it does not meet the criteria for 

service animals. Explain your airline’s 

policy on pets (i.e., will or will not 

accept for carriage in the cabin or cargo 

hold), and what procedures to follow. 

• If the passenger does not accept 

your explanation, avoid getting into an 

argument. Ask the passenger to wait 

while you contact your airline’s 

complaint resolution official (CRO). Part 

382 requires all airlines to have a CRO 

available at each airport they serve 

during all hours of operation. The CRO 

may be made available by telephone. 

The CRO is a resource for resolving 

difficulties related to disability 

accommodation. 

• Consult with the CRO immediately, 

if possible. The CRO normally has the 

authority to make the final decision 

regarding carriage of service animals. In 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27661 

the rare instance that a service animal 

would raise a concern regarding flight 

safety, the CRO may consult with the 

pilot-in-command. If the pilot-incommand makes a decision to restrict 

the animal from the cabin or the flight 

for safety reasons, the CRO cannot 

countermand the pilot’s decision. This 

does not preclude the Department from 

taking subsequent enforcement action, 

however, if it is determined that the 

pilot’s decision was inconsistent with 

Part 382. 

• If a CRO makes the final decision 

not to accept an animal as a service 

animal, then the CRO must provide a 

written statement to the passenger 

within 10 days explaining the reason(s) 

for that determination. If carrier 

personnel other than the CRO make the 

final decision, a written explanation is 

not required; however, because denying 

carriage of a legitimate service animal is 

a potential civil rights violation, it is 

recommended that carrier personnel 

explain to the passenger the reason the 

animal will not be accepted as a service 

animal. A recommended practice may 

include sending passengers whose 

animals are not accepted as service 

animals a letter within 10 business days 

explaining the basis for such a decision. 

In considering whether a service 

animal should be excluded from the 

cabin, keep these things in mind: 

• Certain unusual service animals 

(e.g., snakes, other reptiles, ferrets, 

rodents, and spiders) pose unavoidable 

safety and/or public health concerns 

and airlines are not required to transport 

them. 

• In all other circumstances for U.S. 

carriers, each situation must be 

considered individually. Do not make 

assumptions about how a particular 

unusual animal is likely to behave based 

on past experience with other animals. 

You may inquire, however, about 

whether a particular animal has been 

trained to behave properly in a public 

setting. Note that, under the 2008 final 

rule, foreign carriers are not required to 

carry animals other than dogs. 

• Before deciding to exclude the 

animal, you should consider and try 

available means of mitigating the 

problem (e.g., muzzling a dog that barks 

frequently, allowing the passenger a 

reasonable amount of time under the 

circumstances to correct the disruptive 

behavior, offering the passenger a 

different seat where the animal won’t 

block the aisle.) 

If it is determined that the animal 

should not accompany the disabled 

passenger in the cabin at this time, offer 

the passenger alternative 

accommodations in accordance with 

Part 382 and company policy (e.g., 

accept the animal for carriage in the 

cargo compartment at no cost to the 

passenger). 

What about unusual service animals? 

• As indicated above, certain unusual 

service animals, (e.g., snakes, other 

reptiles, ferrets, rodents, and spiders) 

pose unavoidable safety and/or public 

health concerns and airlines are not 

required to transport them. The release 

of such an animal in the aircraft cabin 

could result in a direct threat to the 

health or safety of passengers and 

crewmembers. For these reasons, 

airlines are not required to transport 

these types of service animals in the 

cabin, and carriage in the cargo hold 

will be in accordance with company 

policies on the carriage of animals 

generally. 

• Other unusual animals such as 

miniature horses, pigs, and monkeys 

should be evaluated on a case-by-case 

basis by U.S. carriers. Factors to 

consider are the animal’s size, weight, 

state and foreign country restrictions, 

and whether or not the animal would 

pose a direct threat to the health or 

safety of others, or cause a fundamental 

alteration (e.g., significant disruption) in 

the cabin service. If none of these factors 

apply, the animal may accompany the 

passenger in the cabin. In most other 

situations, the animal should be carried 

in the cargo hold in accordance with 

company policy. Under the 2008 final 

rule, foreign carriers are not required to 

transport animals other than dogs. 

Miscellaneous Questions 

What about the passenger who has two 

or more service animals? 

• A single passenger legitimately may 

have two or more service animals. In 

these circumstances, you should make 

every reasonable effort to accommodate 

them in the cabin in accordance with 

Part 382 and company policies on 

seating. This might include permitting 

the passenger to purchase a second seat 

so that the animals can be 

accommodated in accordance with FAA 

safety regulations. You may offer the 

passenger a seat on a later flight if the 

passenger and animals cannot be 

accommodated together at a single 

passenger seat. Airlines may not charge 

passengers for accommodations that are 

required by Part 382, including 

transporting service animals in the cargo 

compartment. If carriage in the cargo 

compartment is unavoidable, notify the 

destination station to return the service 

animal(s) to the passenger at the gate as 

soon as possible, or to assist the 

passenger as necessary to retrieve them 

in the appropriate location. 

Are there any situations in which an 

animal would not be permitted to 

accompany its user on the flight? 

The only situation in which the rule 

contemplates that a service animal 

would not be permitted to accompany 

its user at his or her seat is where the 

animal blocks a space that, per FAA or 

applicable foreign government safety 

regulations, must remain unobstructed 

(e.g., an aisle, access to an emergency 

exit) AND the passenger and animal 

cannot be moved to another location 

where such a blockage does not occur. 

In such a situation, the carrier should 

first talk with other passengers to find 

a seat location in the cabin where the 

service animal and its user can be 

agreeably accommodated (e.g., by 

finding a passenger who is willing to 

share foot space with the animal). The 

fact that a service animal may need to 

use a reasonable portion of an adjacent 

seat’s foot space that does not deny 

another passenger effective use of the 

space for his or her feet by taking all or 

most of the passenger’s foot space is not, 

however, an adequate reason for the 

carrier to refuse to permit the animal to 

accompany its user at his or her seat. 

Only if no other alternative is available 

should the carrier discuss less desirable 

options concerning the transportation of 

the service animal with the passenger 

traveling with the animal, such as 

traveling on a later flight with more 

room or carrying the animal in cargo. As 

indicated above, airlines may not charge 

passengers with disabilities for services 

required by Part 382, including 

transporting their oversized service 

animals in the cargo compartment. 

Should passengers provide advance 

notice to the airline concerning multiple 

or large service animals? 

In most cases, airlines may not insist 

on advance notice or health certificates 

for service animals under the ACAA 

regulations. However, it is very useful 

for passengers to contact the airline well 

in advance if one or more of their 

service animals may need to be 

transported in the cargo compartment. 

The passenger will need to understand 

airline policies and should find out 

what type of documents the carrier 

would need to ensure the safe passage 

of the service animal in the cargo 

compartment and any restrictions for 

cargo travel that might apply (e.g., 

temperature conditions that limit live 

animal transport). 


rwilkins on PROD1PC63 with RULES2
27662 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

Accommodating Passengers With 

Service Animals in the Cabin 

How can airline personnel help ensure 

that passengers with service animals are 

assigned and obtain appropriate seats on 

the aircraft? 

• Let passengers know the airline’s 

policy about seat assignments for people 

with disabilities. For instance: (1) 

Should the passenger request 

preboarding at the gate? or (2) should 

the passenger request an advance seat 

assignment (a priority seat such as a 

bulkhead seat or aisle seat) up to 24 

hours before departure? or (3) should 

the passenger request an advance seat 

assignment at the gate on the day of 

departure? When assigning priority 

seats, ask the passenger what location 

best fits his/her needs. 

• Passengers generally know what 

kinds of seats best suit their service 

animals. In certain circumstances, 

passengers with service animals must 

either be provided their pre-requested 

priority seats, or if their requested seat 

location cannot be made available, they 

must be assigned to other available 

priority seats of their choice in the same 

cabin class. Part 382.81(c) requires 

airlines to provide a bulkhead seat or a 

seat other than a bulkhead seat at the 

request of an individual traveling with 

a service animal. 

• Passengers should comply with 

airline recommendations or 

requirements regarding when they 

should arrive at the gate before a flight. 

This may vary from airport to airport 

and airline to airline. Not all airlines 

announce preboarding for passengers 

with special needs, although it may be 

available. If you wish to request 

preboarding, tell the agent at the gate. 

• A timely request for preboarding by 

a passenger with a disability must be 

honored (see sections 382.83(c) and 

382.93) 

Part 382 does not require carriers to 

make modifications that would 

constitute an undue burden or would 

fundamentally alter their programs 

(382.13(c)). Therefore, the following are 

not required in providing 

accommodations for users of service 

animals 

➢ Requiring another passenger to 

give up all or a most of the space in 

front of his or her seat to accommodate 

a service animal. (There is nothing 

wrong with asking another passenger if 

the passenger would mind sharing foot 

space with a service animal, as distinct 

from telling the passenger that he or she 

must do so. Indeed, finding a passenger 

willing to share space is a common, and 

acceptable, method of finding an 

appropriate place for someone traveling 

with a service animal that may not be 

able to be seated in his or her original 

seat location.) 

➢ Denying transportation to any 

individual on a flight in order to 

provide an accommodation to a 

passenger with a service animal; 

➢ Furnishing more than one seat per 

ticket; and 

➢ Providing a seat in a class of 

service other than the one the passenger 

has purchased. (While a carrier is not 

required to do so, there could be 

situations in which the carrier could 

voluntarily reseat a passenger with a 

service animal in a different seating 

class. For example, suppose that the 

economy cabin is completely full and 

no alternate seat location in that cabin 

can be found for a service animal that 

cannot be seated at the passenger’s 

original seat location. If the business or 

first class cabin has vacant space, the 

carrier could choose to move the 

passenger and animal into the vacant 

space, rather than make the passenger 

and animal take a later flight.) 

Are airline personnel responsible for the 

care and feeding of service animals? 

Airline personnel are not required to 

provide care, food, or special facilities 

for service animals. The care and 

supervision of a service animal is solely 

the responsibility of the passenger with 

a disability whom the animal is 

accompanying. 

May a carrier charge a maintenance or 

cleaning fee to passengers who travel 

with service animals? 

Part 382 prohibits carriers from 

imposing special charges for 

accommodations required by the 

regulation, such as carriage of a service 

animal. However, a carrier may charge 

passengers with a disability if a service 

animal causes damage, as long as it is 

its regular practice to charge nondisabled passengers for similar kinds of 

damage. For example, it could charge a 

passenger with a disability for the cost 

of repairing or cleaning a seat damaged 

by a service animal, assuming that it is 

its policy to charge when a non-disabled 

passenger or his or her pet causes 

similar damage. 

Advice for Passengers With Service 

Animals 

• Ask about the airline’s policy on 

advance seat assignments for people 

with disabilities. For instance: (1) 

Should a passenger request preboarding 

at the gate? or (2) should a passenger 

request an advance seat assignment (a 

priority seat such as a (bulkhead seat or 

aisle seat)) up to 24 hours before 

departure? or (3) should a passenger 

request an advance seat assignment at 

the gate on the day of departure? 

• Although airlines are not permitted 

to automatically require documentation 

for service animals other than emotional 

support or psychiatric service animals, 

if you think it would help you explain 

the need for a service animal, you may 

want to carry documentation from your 

physician or other licensed professional 

confirming your need for the service 

animal. Passengers with unusual service 

animals also may want to carry 

documentation confirming that their 

animal has been trained to perform a 

function or task for them. 

• If you are traveling with an 

emotional support or psychiatric service 

animal, you may be required by the 

airline to provide 48 hours’ advance 

notice. 

• If you need a specific seat 

assignment for yourself and your service 

animal, make your reservation as far in 

advance as you can, and identify your 

need at that time. 

• You may have to be flexible if your 

assigned seat unexpectedly turns out to 

be in an emergency exit row. When an 

aircraft is changed at the last minute, 

seating may be reassigned 

automatically. Automatic systems 

generally do not recognize special 

needs, and may make inappropriate seat 

assignments. In that case, you may be 

required by FAA regulations to move to 

another seat. 

• Arrive at the gate when instructed 

by the airline, typically at least one hour 

before departure, and ask the gate agent 

for preboarding—if that is your desire. 

• Remember that your assigned seat 

may be reassigned if you fail to check 

in on time; airlines typically release seat 

assignments not claimed 30 minutes 

before scheduled departure. In addition, 

if you fail to check in on time you may 

not be able to take advantage of the 

airline’s preboard offer. 

• If you have a very large service 

animal or multiple animals that might 

need to be transported in the cargo 

compartment, contact the airline well in 

advance of your travel date. In most 

cases, airlines cannot insist on advance 

notice, except for emotional support or 

psychiatric service animals, or on health 

certificates for service animals under the 

ACAA regulations. However, it is very 

useful for passengers to contact the 

airline well in advance if one or more 

of their service animals may need to be 

transported in the cargo compartment. 

The passenger will need to understand 

airline policies and should find out 

what type of documents the carrier 

would need to ensure the safe passage 

of the service animal in the cargo 

compartment and any restrictions for 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27663 

cargo travel that might apply (e.g., 

temperature conditions that limit live 

animal transport). 

• If you are having difficulty 

receiving an appropriate 

accommodation, ask the airline 

employee to contact the airline’s CRO. 

Part 382 requires all airlines to have a 

CRO available during all hours of 

operation. The CRO is a resource for 

resolving difficulties related to 

disability accommodations. 

• Another resource for resolving 

issues related to disability 

accommodations is the U.S. Department 

of Transportation’s Disability Hotline. 

The toll-free number is 1–800–778–4838 

(voice) and 1–800–455–9880 (TTY). 

Glossary 

Direct Threat to the Health or Safety of 

Others 

A significant risk to the health or 

safety of others that cannot be 

eliminated by a modification of policies, 

practices, or procedures, or by the 

provision of auxiliary aids or services. 

Fundamental Alteration 

A modification that substantially 

alters the basic nature or purpose of a 

program, service, product or activity. 

Individual With a Disability 

• ‘‘Any individual who has a physical 

or mental impairment that, on a 

permanent or temporary basis, 

substantially limits one or more major 

life activities, has a record of such an 

impairment, or is regarded as having 

such an impairment.’’ (Section 382.5) 

Qualified Individual With a Disability 

Any individual with a disability who: 

(1) ‘‘Takes those actions necessary to 

avail himself or herself of facilities or 

services offered by a carrier to the 

general public with respect to 

accompanying or meeting a traveler, use 

of ground transportation, using terminal 

facilities, or obtaining information about 

schedules, fares or policies’’; 

(2) ‘‘Offers, or makes a good faith 

attempt to offer, to purchase or 

otherwise validly to obtain * * * a 

ticket’’ ‘‘for air transportation on an 

carrier’’; or 

(3) ‘‘Purchases or possesses a valid 

ticket for air transportation on an carrier 

and presents himself or herself at the 

airport for the purpose of traveling on 

the flight for which the ticket has been 

purchased or obtained; and meets 

reasonable, nondiscriminatory contract 

of carriage requirements applicable to 

all passengers.’’ (Section 382.5). 

Service Animal 

Any animal that is individually 

trained or able to provide assistance to 

a qualified person with a disability; or 

any animal shown by documentation to 

be necessary for the emotional wellbeing of a passenger. 

Sources 

In addition to applicable provisions of 

Part 382, the sources for this guidance 

include the following: ‘‘Guidance 

Concerning Service Animals in Air 

Transportation,’’ (61 FR 56420–56422, 

(November 1, 1996)), ‘‘Commonly Asked 

Questions About Service Animals in 

Places of Business’’ (Department of 

Justice, July, 1996), and ‘‘ADA Business 

Brief: Service Animals’’ (Department of 

Justice, April 2002). 

Regulatory Analyses and Notices 

A. Executive Order 12866 (Regulatory 

Planning and Review) and DOT 

Regulatory Policies and Procedures 

This action has been determined to be 

significant under Executive Order 12866 

and the Department of Transportation 

Regulatory Policies and Procedures. It 

extends regulatory coverage under the 

ACAA to foreign carriers for the first 

time and adds requirements concerning 

passengers who use medical oxygen and 

accommodations for deaf and hard-ofhearing passengers. These are areas of 

considerable importance to passengers 

and air carriers and are of interest to the 

public and members of Congress. 

The costs and benefits of the rule are 

summarized in the following tables, 

taken from the regulatory evaluation. It 

is very important to keep in mind that, 

in the Department’s view, this rule has 

very significant nonquantifiable 

benefits, which these tables do not 

address. These nonquantifiable benefits 

include increased opportunities for 

individuals with disabilities to access 

the air travel system without 

discrimination and with fewer 

unnecessary barriers. This access opens 

up business and personal travel 

opportunities and the personal and 

economic benefits that result from the 

increased chance to travel. These 

nonquantifiable benefits make the rule 

cost-beneficial, even without 

considering the significant economic 

benefits displayed in the tables below. 

TABLE A.—SUMMARY OF FOREIGN CARRIER COST AND BENEFIT ESTIMATES

[Millions 2005$] 

Boarding 

equipment 

(lifts/ 

ramps, 

chairs) 

On-board 

wheelchairs 

Cabin 

stowage 

area for 

on-board 

wheelchair 

and passenger’s 

folding 

wheelchair 

Accessible 

lavatories 

Personnel 

training 

costs 

Total costs 

($M) 

Total carrier benefits high 

MC case 

($M) 

Net carrier 

benefits 

high MC 

case 

($M) 

Total carrier benefits low MC 

case 

($M) 

Net carrier 

benefits 

low MC 

case 

($M) 

Low Impact Case: 

Present Value over 20 

years ........................... 1.161 2.507 0.260 138.373 22.959 165.3 112.0 ¥53.3 179.2 13.9 

Year 20 undiscounted .... 0.010 0.061 0.044 32.132 2.769 35.0 35.8 0.8 57.2 22.2 

High Impact Case: 

Present Value over 20 

years ........................... 2.245 3.051 0.260 276.747 45.917 328.2 224.0 ¥104.2 358.4 30.2 

Year 20 undiscounted .... 0.013 0.075 0.044 64.264 5.539 69.9 71.5 1.6 114.5 44.5 


rwilkins on PROD1PC63 with RULES2
27664 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

TABLE B.—SUMMARY OF DEAF AND HARD-OF-HEARING COST AND BENEFIT ESTIMATES

[Millions 2005$] 

Assistants’ fares forgone 

Reservation TTY Copy of 

part 382 

Captioning in 

waiting 

areas 

Public announcements Awareness 

training 

Total 

costs 

($M) 

Total carrier benefits high 

MC case 

($M) 

Net carrier benefits high 

MC case 

($M) 

Total carrier benefits low 

MC case 

($M) 

Net carrier benefits low 

MC case 

($M) 

Low Impact Case: 

Present value over 20 

years ........................... 3.500 2.420 0.108 0.250 1.400 80.000 87.7 110.1 22.4 176.2 88.5 

Year 20 undiscounted .... 0.500 0.080 0.000 0.017 0.000 6.400 7.0 16.4 9.4 26.2 19.2 

High Impact Case: 

Present Value over 20 

years ........................... 7.000 4.840 0.216 0.500 2.800 160.000 175.4 220.2 44.9 352.4 177.0 

Year 20 undiscounted .... 1.000 0.160 0.000 0.034 0.000 12.800 14.0 32.7 18.7 52.3 38.3 

TABLE C.—SUMMARY OF MEDICAL OXYGEN COST AND BENEFIT ESTIMATES

[Millions 2005$] 

Total costs 

($M) 

Total carrier 

benefits 

high MC 

case 

($M) 

Net carrier 

benefits 

high MC 

case 

($M) 

Total carrier 

benefits low 

MC case 

($M) 

Net carrier 

benefits low 

MC case 

($M) 

Low Impact Case: 

Present Value over 20 years ............................................................ 97.2 449.8 352.6 719.7 622.5 

Year 20 undiscounted ....................................................................... 15.9 76.3 60.4 122.2 106.3 

High Impact Case: 

Present Value over 20 years ............................................................ 194.4 899.6 705.2 1,439.4 1,245.0 

Year 20 undiscounted ....................................................................... 31.8 152.7 120.9 244.3 212.5 

TABLE D.—AGGREGATE COST AND BENEFIT ESTIMATES

[Millions 2005$] 

Total costs 

($M) 

Total carrier 

benefits 

high MC 

case 

($M) 

Net carrier 

benefits 

high MC 

case 

($M) 

Total carrier 

benefits low 

MC case 

($M) 

Net carrier 

benefits low 

MC case 

($M) 

Low Impact Case: 

Present Value over 20 years ............................................................ 350.1 671.9 321.8 1,075.1 724.9 

Year 20 undiscounted ....................................................................... 57.9 128.5 70.6 205.6 147.6 

High Impact Case: 

Present Value over 20 years ............................................................ 698.0 1,343.9 645.9 2,150.2 1,452.2 

Year 20 undiscounted ....................................................................... 115.7 256.9 141.2 411.1 295.4 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires an agency to 

review regulations to assess their impact 

on small entities unless the agency 

determines that a rule is not expected to 

have a significant economic impact on 

a substantial number of small entities. A 

direct air carrier or a foreign carrier is 

a small business if it provides air 

transportation only with small aircraft 

(i.e., aircraft with up to 60 seats/18,000 

pound payload capacity). See 14 CFR 

399.73. Our analysis identified 338 

small businesses potentially affected by 

the requirements of the final rule. 

We project that about 30 small foreign 

carriers would incur costs related to 

boarding equipment (small U.S. carriers 

already are subject to this requirement). 

These costs represent a total present 

value ranging from $1.161 million to 

$2.245 million, or from $39,000 to 

$75,000 per carrier, almost entirely in 

the first two years. When more than one 

small carrier uses the same airport, 

however, a sharing arrangement may be 

more efficient. The affected airlines are, 

it should be noted, the larger small 

carriers, those which use aircraft with 

more than 19 seats and which serve a 

greater number of airports. 

Both small U.S. and small foreign 

carriers would incur costs related to 

training. We project that U.S. carriers 

would need to provide two hours of 

training to each of their employees with 

respect to new requirements concerning 

oxygen and deaf and hard-of-hearing 

passengers. On this assumption, the 

present value of training costs would be 

$2.6 million or $7,738 for each of the 

338 carriers affected by the rule. 

Our analysis estimates that training 

costs for foreign carriers would amount 

to a present value of $0.8 million to $1.6 

million over 20 years. Assuming the 

number of carriers affected to be 30, the 

cost would be $27,000 to $54,000 per 

carrier. 

With small carriers handling 2.8 

percent of the estimated medical oxygen 

reservations at a cost of $25 each, we 

would project small carrier costs as 

being a total present value of $5.4 

million, or $16,000 per carrier. This 

figure is probably overstated, because 

many small carriers are affiliated with 

larger airlines that process reservations 

for them. 

Following the line of argument 

adopted throughout Department’s 

overall regulatory evaluation, these 

costs should be offset by an expected 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27665 

increase in the number of PWDs willing 

and able to fly on small carriers. 

We note that, while we have 

examined the effects of the rule on small 

foreign as well as small U.S. carriers, the 

Regulatory Flexibility Act does not 

apply to foreign entities. On the basis of 

this examination, the Department 

certifies that this rule will not have a 

significant economic impact on a 

significant number of small entities. 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires an agency to 

review regulations to assess their impact 

on small entities unless the agency 

determines that a rule is not expected to 

have a significant economic impact on 

a substantial number of small entities. A 

direct air carrier or a foreign carrier is 

a small business if it provides air 

transportation only with small aircraft 

(i.e., aircraft with up to 60 seats/18,000 

pound payload capacity). See 14 CFR 

399.73. Our analyses identified 338 

small businesses potentially affected by 

the requirements of the final rule. 

We project that about 30 small foreign 

carriers would incur costs related to 

boarding equipment (small U.S. carriers 

already are subject to this requirement). 

These costs represent a total present 

value ranging from $1.161 million to 

$2.245 million, or from $39,000 to 

$75,000 per carrier, almost entirely in 

the first two years. mall carrier use the 

same airport, however, a sharing 

arrangement may be more efficient. The 

affected airlines are, it should be noted, 

the larger small carriers, those which 

use aircraft with more than 19 seats and 

which serve a greater number of 

airports. 

Both small U.S. and small foreign 

carriers would incur costs related to 

training. We project that U.S. carriers 

would need to train their employees two 

hours each with respect to new 

requirements concerning oxygen and 

deaf and hard-of-hearing passengers. On 

this assumption, the a present value of 

training costs would be $2.6 million or 

$7,738 for each carrier involved. 

Our analysis estimates that training 

costs for foreign carriers would amount 

to a present value of $0.8 million to $1.6 

million over 20 years. Assuming the 

number of carriers affected to be 30, the 

cost for each would be $27,000 to 

$54,000 per carrier. 

With small carriers handling 2.8 

percent of the estimated medical oxygen 

reservations at a cost of $25 each, we 

would project small carrier costs as 

being a total present value of $5.4 

million, or $16,000 per carrier. This 

figure is probably overstated, because 

many small carriers are affiliated with 

larger airlines that process reservations 

for them. 

Following the line of argument 

adopted throughout Department’s 

overall regulatory evaluation, these 

costs should be offset by an expected 

increase in the number of PWDs willing 

and able to fly on small carriers. 

We note that, while we have 

examined the effects of the rule on small 

foreign as well as small U.S. carriers, the 

Regulatory Flexibility Act does not 

apply to foreign entities. On the basis of 

this examination, the Department 

certifies that this rule will not have a 

significant economic impact on a 

significant number of small entities. 

C. Executive Order 13132 (Federalism) 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’). This final rule 

does not include any provision that: (1) 

Has substantial direct effects on the 

States, the relationship between the 

national government and the States, or 

the distribution of power and 

responsibilities among the various 

levels of government; (2) imposes 

substantial direct compliance costs on 

State and local governments; or (3) 

preempts state law. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

D. Executive Order 13084 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13084 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’). 

Because this final rule does not 

significantly or uniquely affect the 

communities of the Indian tribal 

governments and does not impose 

substantial direct compliance costs on 

them, the funding and consultation 

requirements of Executive Order 13084 

do not apply. 

E. Paperwork Reduction Act 

The final rule does contain a new 

information collection requirement that 

requires approval by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act (44 U.S.C. 

2507 et. seq.). Specifically, section 

382.145 includes record retention 

requirements for information 

concerning training. The Department 

will pursue OMB approval for this 

requirement during the year between 

the publication and effective dates of 

the rule. 

Section 382.157 involves disabilityrelated complaint reporting to the 

Department. This provision is identical 

to a provision of the existing Part 382, 

and it is subject to an existing 

Paperwork Reduction Act approval by 

OMB. No further approvals are needed 

for this section at the present time. 

F. Unfunded Mandates Reform Act 

The Department has determined that 

the requirements of Title II of the 

Unfunded Mandates Reform Act of 1995 

do not apply to this rulemaking. 

Issued this 28th Day of April, 2008, at 

Washington, DC. 

Mary E. Peters, 

Secretary of Transportation. 

List of Subjects in 14 CFR Part 382 

Air carriers, Consumer protection, 

Individuals with disabilities, Reporting 

and recordkeeping requirements. 

■ For the reasons set forth in the 

preamble, the Department revises 14 

CFR part 382 to read as follows: 

PART 382—NONDISCRIMINATION ON 

THE BASIS OF DISABILITY IN AIR 

TRAVEL 

Sec. 

Subpart A—General Provisions 

382.1 What is the purpose of this Part? 

382.3 What do the terms in this rule mean? 

382.5 When are foreign carriers required to 

begin complying with the provisions of 

this Part? 

382.7 To whom do the provisions of this 

Part apply? 

382.9 What may foreign carriers do if they 

believe a provision of a foreign nation’s 

law prohibits compliance with a 

provision of this Part? 

382.10 How does a carrier obtain a 

determination that it is providing an 

equivalent alternative to passengers with 

disabilities? 

Subpart B—Nondiscrimination and Access 

to Services and Information 

382.11 What is the general 

nondiscrimination requirement of this 

Part? 

382.13 Do carriers have to modify policies, 

practices, and facilities to ensure 

nondiscrimination? 

382.15 Do carriers have to make sure that 

contractors comply with the 

requirements of this Part? 

382.17 May carriers limit the number of 

passengers with a disability on a flight? 

382.19 May carriers refuse to provide 

transportation on the basis of disability? 

382.21 May carriers limit access to 

transportation on the basis that a 

passenger has a communicable disease or 

other medical condition? 

382.23 May carriers require a passenger 

with a disability to provide a medical 

certificate? 

382.25 May a carrier require a passenger 

with a disability to provide advance 

notice that he or she is traveling on a 

flight? 

382.27 May a carrier require a passenger 

with a disability to provide advance 

notice in order to obtain certain specific 

services in connection with a flight? 


rwilkins on PROD1PC63 with RULES2
27666 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

382.29 May a carrier require a passenger 

with a disability to travel with a safety 

assistant? 

382.31 May carriers impose special charges 

on passengers with a disability for 

providing services and accommodations 

required by this rule? 

382.33 May carriers impose other 

restrictions on passengers with a 

disability that they do not impose on 

other passengers? 

382.35 May carriers require passengers with 

a disability to sign waivers or releases? 

Subpart C—Information for Passengers 

382.41 What flight-related information must 

carriers provide to qualified individuals 

with a disability? 

382.43 Must information and reservation 

services of carriers be accessible to 

individuals with hearing and vision 

impairments? 

382.45 Must carriers make copies of this 

Part available to passengers? 

Subpart D—Accessibility of Airport 

Facilities 

382.51 What requirements must carriers 

meet concerning the accessibility of 

airport facilities? 

382.53 What accommodations are required 

in airports for individuals with a vision 

impairment and individuals who are 

deaf or hard-of-hearing? 

382.55 May carriers impose security 

screening procedures with passengers 

with disabilities that go beyond TSA 

requirements or those of foreign 

governments? 

382.57 What services must carriers provide 

if their automated kiosks are 

inaccessible? 

Subpart E—Accessibility of Aircraft 

382.61 What are the requirements for 

movable aisle armrests? 

382.63 What are the requirements for 

accessible lavatories? 

382.65 What are the requirements 

concerning on-board wheelchairs? 

382.67 What is the requirement for priority 

space in the cabin to store passenger 

wheelchairs? 

382.69 What requirements must carriers 

meet concerning the accessibility of 

videos, DVDs, and other audio-visual 

presentations shown on aircraft to 

individuals who are deaf or hard-ofhearing? 

382.71 What other aircraft accessibility 

requirements apply to carriers? 

Subpart F—Seating Accommodations 

382.81 For which passengers must carriers 

make seating accommodations? 

382.83 Through what mechanisms do 

carriers make seating accommodations? 

382.85 What seating accommodations must 

carriers make to passengers in 

circumstances not covered by 382.81 

(a)—(d)? 

382.87 What other requirements pertain to 

seating for passengers with a disability? 

Subpart G—Boarding, Deplaning, and 

Connecting Assistance 

382.91 What assistance must carriers 

provide to passengers with a disability in 

moving within the terminal? 

382.93 Must carriers offer preboarding to 

passengers with a disability? 

382.95 What are carriers’ general 

obligations with respect to boarding and 

deplaning assistance? 

382.97 To which aircraft does the 

requirement to provide boarding and 

deplaning assistance through the use of 

lifts apply? 

382.99 What agreements must carriers have 

with the airports they serve? 

382.101 What other boarding and deplaning 

assistance must carriers provide? 

382.103 May a carrier leave a passenger 

unattended in a wheelchair or other 

device? 

382.105 What is the responsibility of 

carriers at foreign airports at which 

airport operators have responsibility for 

enplaning, deplaning, and connecting 

assistance? 

Subpart H—Services on Aircraft 

382.111 What services must carriers 

provide to passengers with a disability 

on board the aircraft? 

382.113 What services are carriers not 

required to provide to passengers with a 

disability on board the aircraft? 

382.115 What requirements apply to onboard safety briefings? 

382.117 Must carriers permit passengers 

with a disability to travel with service 

animals? 

382.119 What information must carriers 

give individuals with vision or hearing 

impairment on aircraft? 

Subpart I—Stowage of Wheelchairs, Other 

Mobility Aids, and Other Assistive Devices 

382.121 What mobility aids and other 

assistive devices may passengers with a 

disability bring into the aircraft cabin? 

382.123 What are the requirements 

concerning priority cabin stowage space 

for wheelchairs and other assistive 

devices? 

382.125 What procedures do carriers follow 

when wheelchairs, other mobility aids, 

and other assistive devices must be 

stowed in the cargo compartment? 

382.127 What procedures apply to stowage 

of battery-powered mobility aids? 

382.129 What other requirements apply 

when passengers’ wheelchairs, other 

mobility aids, and other assistive devices 

must be disassembled for stowage? 

382.131 Do baggage liability limits apply to 

mobility aids and other assistive 

devices? 

382.133 What are the requirements 

concerning the evaluation and use of 

passenger-supplied electronic devices 

that assist passengers with respiration in 

the cabin during flight? 

Subpart J—Training and Administrative 

Provisions 

382.141 What training are carriers required 

to provide for their personnel? 

382.143 When must carriers complete 

training for their personnel? 

382.145 What records concerning training 

must carriers retain? 

Subpart K—Complaints and Enforcement 

Procedures 

382.151 What are the requirements for 

providing Complaints Resolution 

Officials? 

382.153 What actions do CROs take on 

complaints? 

382.155 How must carriers respond to 

written complaints? 

382.157 What are carriers’ obligations for 

recordkeeping and reporting on 

disability-related complaints? 

382.159 How are complaints filed with 

DOT? 

Appendix A to Part 382—Disability 

Complaint Reporting Form 

Appendix B to Part 382—Cross-Reference 

Table 

Authority: 49 U.S.C. 41705. 

Subpart A—General Provisions 

§ 382.1 What is the purpose of this Part? 

The purpose of this Part is to carry out 

the Air Carrier Access Act of 1986, as 

amended. This rule prohibits both U.S. 

and foreign carriers from discriminating 

against passengers on the basis of 

disability; requires carriers to make 

aircraft, other facilities, and services 

accessible; and requires carriers to take 

steps to accommodate passengers with a 

disability. 

§ 382.3 What do the terms in this rule 

mean? 

In this regulation, the terms listed in 

this section have the following 

meanings: 

Air Carrier Access Act or ACAA 

means the Air Carrier Access Act of 

1986, as amended, the statute that 

provides the principal authority for this 

Part. 

Air transportation means interstate or 

foreign air transportation, or the 

transportation of mail by aircraft, as 

defined in 49 U.S.C. 40102. 

Assistive device means any piece of 

equipment that assists a passenger with 

a disability to cope with the effects of 

his or her disability. Such devices are 

intended to assist a passenger with a 

disability to hear, see, communicate, 

maneuver, or perform other functions of 

daily life, and may include medical 

devices and medications. 

Battery-powered mobility aid means 

an assistive device that is used by 

individuals with mobility impairments 

such a wheelchair, a scooter, or a 

Segway when it is used as a mobility 

device by a person with a mobilityrelated disability. 

Carrier means a U.S. citizen (‘‘U.S. 

carrier’’) or foreign citizen (‘‘foreign 

carrier’’) that undertakes, directly or 

indirectly, or by a lease or any other 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27667 

arrangement, to engage in air 

transportation. 

Commuter carrier means an air taxi 

operator as defined in 14 CFR part 298 

that carries passengers on at least 5 

round trips per week on at least one 

route between two or more points 

according to its published flight 

schedules that specify the times, days of 

the week and places between which 

those flights are performed. 

CPAP machine means a continuous 

positive airway pressure machine. 

Department or DOT means the United 

States Department of Transportation. 

Direct threat means a significant risk 

to the health or safety of others that 

cannot be eliminated by a modification 

of policies, practices, or procedures, or 

by the provision of auxiliary aids or 

services. 

Equivalent alternative means a policy, 

practice, or other accommodation that 

provides substantially equivalent 

accessibility to passengers with 

disabilities, compared to compliance 

with a provision of this Part. 

Expected maximum flight duration 

means the carrier’s best estimate of the 

total duration of the flight from 

departure gate to arrival gate, including 

taxi time to and from the terminals, 

based on the scheduled flight time and 

factors such as (a) wind and other 

weather conditions forecast; (b) 

anticipated traffic delays; (c) one 

instrument approach and possible 

missed approach at destination; and (d) 

any other conditions that may delay 

arrival of the aircraft at the destination 

gate. 

FAA means the Federal Aviation 

Administration, an operating 

administration of the Department of 

Transportation. 

Facility means a carrier’s aircraft and 

any portion of an airport that a carrier 

owns, leases, or controls (e.g., 

structures, roads, walks, parking lots, 

ticketing areas, baggage drop-off and 

retrieval sites, gates, other boarding 

locations, loading bridges) normally 

used by passengers or other members of 

the public. 

High-contrast captioning means 

captioning that is at least as easy to read 

as white letters on a consistent black 

background. 

Indirect carrier means a person not 

directly involved in the operation of an 

aircraft who sells air transportation 

services to the general public other than 

as an authorized agent of a carrier. 

Individual with a disability means any 

individual who has a physical or mental 

impairment that, on a permanent or 

temporary basis, substantially limits one 

or more major life activities, has a 

record of such an impairment, or is 

regarded as having such an impairment. 

As used in this definition, the phrase: 

(a) Physical or mental impairment 

means: 

(1) Any physiological disorder or 

condition, cosmetic disfigurement, or 

anatomical loss affecting one or more of 

the following body systems: 

neurological, musculoskeletal, special 

sense organs, respiratory including 

speech organs, cardio-vascular, 

reproductive, digestive, genito-urinary, 

hemic and lymphatic, skin, and 

endocrine; or 

(2) Any mental or psychological 

disorder, such as mental retardation, 

organic brain syndrome, emotional or 

mental illness, and specific learning 

disabilities. 

The term physical or mental 

impairment includes, but is not limited 

to, such diseases and conditions as 

orthopedic, visual, speech, and hearing 

impairments; cerebral palsy, epilepsy, 

muscular dystrophy, multiple sclerosis, 

cancer, heart disease, diabetes, mental 

retardation, emotional illness, drug 

addiction, and alcoholism. 

(b) Major life activities means 

functions such as caring for one’s self, 

performing manual tasks, walking, 

seeing, hearing, speaking, breathing, 

learning, and working. 

(c) Has a record of such impairment 

means has a history of, or has been 

classified, or misclassified, as having a 

mental or physical impairment that 

substantially limits one or more major 

life activities. 

(d) Is regarded as having an 

impairment means: 

(1) Has a physical or mental 

impairment that does not substantially 

limit major life activities but that is 

treated by an air carrier as constituting 

such a limitation; 

(2) Has a physical or mental 

impairment that substantially limits a 

major life activity only as a result of the 

attitudes of others toward such an 

impairment; or 

(3) Has none of the impairments set 

forth in this definition but is treated by 

an air carrier as having such an 

impairment. 

On-demand air taxi means an air taxi 

operator that carries passengers or 

property and is not a commuter carrier 

as defined in this section. 

PHMSA means the Pipeline and 

Hazardous Materials Safety 

Administration, an operating 

administration of the Department of 

Transportation. 

POC means portable oxygen 

concentrator. 

Qualified individual with a disability 

means an individual with a disability—

(a) Who, as a passenger (referred to as 

a ‘‘passenger with a disability’’), 

(1) With respect to obtaining a ticket 

for air transportation on a carrier, offers, 

or makes a good faith attempt to offer, 

to purchase or otherwise validly to 

obtain such a ticket; 

(2) With respect to obtaining air 

transportation, or other services or 

accommodations required by this Part, 

(i) Buys or otherwise validly obtains, 

or makes a good faith effort to obtain, a 

ticket for air transportation on a carrier 

and presents himself or herself at the 

airport for the purpose of traveling on 

the flight to which the ticket pertains; 

and 

(ii) Meets reasonable, 

nondiscriminatory contract of carriage 

requirements applicable to all 

passengers; or 

(b) Who, with respect to 

accompanying or meeting a traveler, 

using ground transportation, using 

terminal facilities, or obtaining 

information about schedules, fares, 

reservations, or policies, takes those 

actions necessary to use facilities or 

services offered by an air carrier to the 

general public, with reasonable 

accommodations, as needed, provided 

by the carrier. 

Scheduled service means any flight 

scheduled in the current edition of the 

Official Airline Guide, the carrier’s 

published schedule, or the computer 

reservation system used by the carrier. 

TSA means the Transportation 

Security Administration, an agency of 

the Department of Homeland Security. 

United States or U.S. means the 

United States of America, including its 

territories and possessions. 

§ 382.5 When are U.S. and foreign carriers 

required to begin complying with the 

provisions of this Part? 

As a U.S. or foreign carrier, you are 

required to comply with the 

requirements of this Part on May 13, 

2009, except as otherwise provided in 

individual sections of this Part. 

§ 382.7 To whom do the provisions of this 

Part apply? 

(a) If you are a U.S. carrier, this Part 

applies to you with respect to all your 

operations and aircraft, regardless of 

where your operations take place, 

except as otherwise provided in this 

Part. 

(b) If you are a foreign carrier, this 

Part applies to you only with respect to 

flights you operate that begin or end at 

a U.S. airport and to aircraft used for 

these flights. For purposes of this Part, 

a ‘‘flight’’ means a continuous journey 

in the same aircraft or with one flight 

number that begins or ends at a U.S. 


rwilkins on PROD1PC63 with RULES2
27668 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

airport. The following are some 

examples of the application of this term: 

Example 1 to paragraph (b): A passenger 

books a nonstop flight on a foreign carrier 

from New York to Frankfurt, or Frankfurt to 

New York. Each of these is a ‘‘flight’’ for 

purposes of this Part. 

Example 2 to paragraph (b): A passenger 

books a journey on a foreign carrier from 

New York to Prague. The foreign carrier flies 

nonstop to Frankfurt. The passenger gets off 

the plane in Frankfurt and boards a 

connecting flight (with a different flight 

number), on the same foreign carrier or a 

different carrier, which goes to Prague. The 

New York-Frankfurt leg of the journey is a 

‘‘flight’’ for purposes of this Part; the 

Frankfurt-Prague leg is not. On the reverse 

routing, the Prague-Frankfurt leg is not a 

covered flight for purposes of this Part, while 

the Frankfurt-New York leg is. 

Example 3 to paragraph (b): A passenger 

books a journey on a foreign carrier from 

New York to Prague. The plane stops for 

refueling and a crew change in Frankfurt. If, 

after deplaning in Frankfurt, the passengers 

originating in New York reboard the aircraft 

(or a different aircraft, assuming the flight 

number remains the same) and continue to 

Prague, they remain on a covered flight for 

purposes of this Part. This is because their 

transportation takes place on a direct flight 

between New York and Prague, even though 

it had an interim stop in Frankfurt. This 

example would also apply in the opposite 

direction (Prague to New York via Frankfurt). 

Example 4 to paragraph (b): In Example 3, 

the foreign carrier is not subject to coverage 

under this Part with respect to a Frankfurtoriginating passenger who boards the aircraft 

and goes to Prague, or a Prague-originating 

passenger who gets off the plane in Frankfurt 

and does not continue to New York. 

(c) As a foreign carrier, you are not 

subject to the requirements of this Part 

with respect to operations between two 

foreign points, even with respect to 

flights involving code-sharing 

arrangements with U.S. carriers. As a 

U.S. carrier that participates in a codesharing arrangement with a foreign 

carrier with respect to operations 

between two foreign points, you (as 

distinct from the foreign carrier) are 

responsible for ensuring compliance 

with the service provisions of subparts 

A through C, F through H, and K with 

respect to passengers traveling under 

your code on such a flight. 

Example 1 to paragraph (c): A passenger 

buys a ticket from a U.S. carrier for a journey 

from New York to Prague. The ticket carries 

the U.S. carrier’s code and flight number 

throughout the entire journey. There is a 

change of carrier and aircraft in Frankfurt, 

and a foreign carrier operates the FrankfurtPrague segment. The foreign carrier is not 

subject to the provisions of Part 382 for the 

Frankfurt-Prague segment. However, the U.S. 

carrier must ensure compliance with the 

applicable provisions of Part 382 on the 

Frankfurt-Prague segment with respect to 

passengers flying under its code, and the 

Department could take enforcement action 

against the U.S. carrier for acts or omissions 

by the foreign carrier. 

(d) As a foreign carrier, if you operate 

a charter flight from a foreign airport to 

a U.S. airport, and return to a foreign 

airport, and you do not pick up any 

passengers in the U.S., the charter 

operation is not a flight subject to the 

requirements of this Part. 

(e) Unless a provision of this Part 

specifies application to a U.S. carrier or 

a foreign carrier, the provision applies 

to both U.S. and foreign carriers. 

(f) If you are an indirect carrier, 

§§ 382.17 through 382.157 of this Part 

do not apply, except insofar as 

§ 382.11(b) applies to you. 

(g) Notwithstanding any provisions of 

this Part, you must comply with all FAA 

safety regulations, TSA security 

regulations, and foreign safety and 

security regulations having legally 

mandatory effect that apply to you. 

§ 382.9 What may foreign carriers do if 

they believe a provision of a foreign 

nation’s law conflicts with compliance with 

a provision of this Part? 

(a) If you are a foreign carrier, and you 

believe that an applicable provision of 

the law of a foreign nation precludes 

you from complying with a provision of 

this Part, you may request a waiver of 

the provision of this Part. 

(b) You must send such a waiver 

request to the following address: 

Assistant General Counsel for Aviation 

Enforcement and Proceedings, C–70 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., Room W96–

322, Washington, DC 20590. 

(c) Your waiver request must be in 

English and include the following 

elements: 

(1) A copy, in the English language, of 

the foreign law involved; 

(2) A description of how the foreign 

law applies and how it precludes 

compliance with a provision of this 

Part; 

(3) A description of the alternative 

means the carrier will use, if the waiver 

is granted, to effectively achieve the 

objective of the provision of this Part 

subject to the waiver or, if applicable, a 

justification of why it would be 

impossible to achieve this objective in 

any way. 

(d) The Department may grant the 

waiver request, or grant the waiver 

request subject to conditions, if it 

determines that the foreign law applies, 

that it does preclude compliance with a 

provision of this Part, and that the 

carrier has provided an effective 

alternative means of achieving the 

objective of the provisions of this Part 

subject to the waiver or have 

demonstrated by clear and convincing 

evidence that it would be impossible to 

achieve this objective in any way. 

(e) (1) If you submit a waiver request 

on or before September 10, 2008, the 

Department will, to the maximum 

extent feasible, respond to the request 

before May 13, 2009. If the Department 

does not respond to the waiver request 

by May 13, 2009, you may continue to 

implement the policy or practice that is 

the subject of your request until the 

Department does respond. The 

Department will not take enforcement 

action with respect to your 

implementation of the policy or practice 

during the time prior to the 

Department’s response. 

(2) If you submit a waiver request 

after September 10, 2008, the 

Department will, to the maximum 

extent feasible, respond to the request 

by May 13, 2009 or within 180 days of 

receiving it, whichever is later. If the 

Department does not respond to the 

waiver request by this date, you may 

continue to implement the policy or 

practice that is the subject of your 

request until the Department does 

respond. However, the Department may 

take enforcement action with respect to 

your implementation of the policy or 

practice during the time between May 

13, 2009 and the date of the 

Department’s response. 

(3) If you submit a waiver request 

after September 10, 2008, and the 

request pertains to an applicable 

provision of the law of a foreign nation 

that did not exist on September 10, 

2008, you may continue to implement 

the policy or practice that is the subject 

of your request until the Department 

responds to the request. The Department 

will, to the maximum extent feasible, 

respond to such requests within 180 

days of receiving them. The Department 

will not take enforcement action with 

respect to your implementation of the 

policy or practice during the time prior 

to the Department’s response. 

(f) Notwithstanding any other 

provision of this section, the 

Department may commence 

enforcement action at any time after 

May 13, 2009 with respect to the policy 

or practice that is the subject of the 

request if it finds the request to be 

frivolous or dilatory. 

(g) If you have not submitted a request 

for a waiver under this section with 

respect to a provision of this Part, or 

such a request has been denied, you 

cannot raise the alleged existence of 

such a conflict as a defense to an 

enforcement action. 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27669 

§ 382.10 How does a U.S. or foreign carrier 

obtain a determination that it is providing 

an equivalent alternative to passengers with 

disabilities? 

(a) As a U.S. or foreign carrier, you 

may apply to the Department for a 

determination that you are providing an 

equivalent alternative to passengers 

with disabilities. 

(b) You must send your application 

for an equivalent alternative 

determination to the following address: 

Assistant General Counsel for Aviation 

Enforcement and Proceedings (C–70), 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., Room W96–

322, Washington, DC 20590. 

(c) Your application must be in 

English and include the following 

elements: 

(1) A citation to the specific provision 

of this Part concerning which you are 

proposing an equivalent alternative. 

(2) A detailed description of the 

alternative policy, practice, or other 

accommodation you are proposing to 

use in place of compliance with the 

provision of this Part that you cite, and 

an explanation of how it provides 

substantially equivalent accessibility to 

passengers with disabilities. 

(d) The Department may grant the 

application, or grant the application 

subject to conditions, if it determines 

that the proposed facilitation does 

provide substantially equivalent 

accessibility to passengers with 

disabilities, compared to compliance 

with the provision of this Part in 

question. 

(e) If your application is granted, you 

will be deemed to be in compliance 

with this Part through implementing the 

equivalent alternative. If your 

application is denied, you must 

implement this Part as written. 

(f)(1) If you submit your application 

on or before September 10, 2008, the 

Department will respond to the request 

before May 13, 2009 to the maximum 

extent feasible. If the Department does 

not respond to the application by May 

13, 2009, you may implement your 

policy or practice that is the subject of 

your application until the Department 

does respond. 

(2) With respect to an application you 

make after September 10, 2008, you 

must comply with the provisions of this 

Part without change from May 13, 2009 

until the Department responds to your 

application. 

Subpart B—Nondiscrimination and 

Access to Services 

§ 382.11 What is the general 

nondiscrimination requirement of this Part? 

(a) As a carrier, you must not do any 

of the following things, either directly or 

through a contractual, licensing, or 

other arrangement: 

(1) You must not discriminate against 

any qualified individual with a 

disability, by reason of such disability, 

in the provision of air transportation; 

(2) You must not require a qualified 

individual with a disability to accept 

special services (including, but not 

limited to, preboarding) that the 

individual does not request. However, 

you may require preboarding as a 

condition of receiving certain seating or 

in-cabin stowage accommodations, as 

specified in §§ 382.83(c), 382.85(b), and 

382.123(a) of this Part. 

(3) You must not exclude a qualified 

individual with a disability from or 

deny the person the benefit of any air 

transportation or related services that 

are available to other persons, except 

where specifically permitted by this 

Part. This is true even if there are 

separate or different services available 

for individuals with a disability, except 

when specifically permitted by another 

section of this Part; and 

(4) You must not take any adverse 

action against an individual (e.g. 

refusing to provide transportation) 

because the individual asserts, on his or 

her own behalf or through or on behalf 

of others, rights protected by this Part or 

the Air Carrier Access Act. 

(b) If, as an indirect carrier, you 

provide facilities or services for other 

carriers that are covered by sections 

382.17 through 382.157, you must do so 

in a manner consistent with those 

sections. 

§ 382.13 Do carriers have to modify 

policies, practices, and facilities to ensure 

nondiscrimination? 

(a) As a carrier, you must modify your 

policies, practices, and facilities when 

needed to provide nondiscriminatory 

service to a particular individual with a 

disability, consistent with the standards 

of section 504 of the Rehabilitation Act, 

as amended. 

(b) This requirement is part of your 

general nondiscrimination obligation, 

and is in addition to your duty to make 

the specific accommodations required 

by this Part. 

(c) However, you are not required to 

make modifications that would 

constitute an undue burden or would 

fundamentally alter your program. 

§ 382.15 Do carriers have to make sure 

that contractors comply with the 

requirements of this Part? 

(a) As a carrier, you must make sure 

that your contractors that provide 

services to the public (including airports 

where applicable) meet the 

requirements of this Part that would 

apply to you if you provided the 

services yourself. 

(b) As a carrier, you must include an 

assurance of compliance with this Part 

in your contracts with any contractors 

that provide services to the public that 

are subject to the requirements of this 

Part. Noncompliance with this 

assurance is a material breach of the 

contract on the contractor’s part. 

(1) This assurance must commit the 

contractor to compliance with all 

applicable provisions of this Part in 

activities performed on behalf of the 

carrier. 

(2) The assurance must also commit 

the contractor to implementing 

directives issued by your CROs under 

§§ 382.151 through 382.153. 

(c) As a U.S. carrier, you must also 

include such an assurance of 

compliance in your contracts or 

agreements of appointment with U.S. 

travel agents. You are not required to 

include such an assurance in contracts 

with foreign travel agents. 

(d) You remain responsible for your 

contractors’ compliance with this Part 

and for enforcing the assurances in your 

contracts with them. 

(e) It is not a defense against an 

enforcement action by the Department 

under this Part that your noncompliance 

resulted from action or inaction by a 

contractor. 

§ 382.17 May carriers limit the number of 

passengers with a disability on a flight? 

As a carrier, you must not limit the 

number of passengers with a disability 

who travel on a flight. (See also 

§ 382.27(b)(6) of this Part.) 

§ 382.19 May carriers refuse to provide 

transportation on the basis of disability? 

(a) As a carrier, you must not refuse 

to provide transportation to a passenger 

with a disability on the basis of his or 

her disability, except as specifically 

permitted by this Part. 

(b) You must not refuse to provide 

transportation to a passenger with a 

disability because the person’s disability 

results in appearance or involuntary 

behavior that may offend, annoy, or 

inconvenience crewmembers or other 

passengers. 

(c) You may refuse to provide 

transportation to any passenger on the 

basis of safety, as provided in 49 U.S.C. 

44902 or 14 CFR 121.533, or to any 

passenger whose carriage would violate 

FAA or TSA requirements or applicable 

requirements of a foreign government. 

(1) You can determine that there is a 

disability-related safety basis for 

refusing to provide transportation to a 

passenger with a disability if you are 

able to demonstrate that the passenger 


rwilkins on PROD1PC63 with RULES2
27670 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

poses a direct threat (see definition in 

§ 382.3). In determining whether an 

individual poses a direct threat, you 

must make an individualized 

assessment, based on reasonable 

judgment that relies on current medical 

knowledge or on the best available 

objective evidence, to ascertain: 

(i) The nature, duration, and severity 

of the risk; 

(ii) The probability that the potential 

harm to the health and safety of others 

will actually occur; and 

(iii) Whether reasonable modifications 

of policies, practices, or procedures will 

mitigate the risk. 

(2) If you determine that the passenger 

does pose a direct threat, you must 

select the least restrictive response from 

the point of view of the passenger, 

consistent with protecting the health 

and safety of others. For example, you 

must not refuse transportation to the 

passenger if you can protect the health 

and safety of others by means short of 

a refusal. 

(3) In exercising this authority, you 

must not act inconsistently with the 

provisions of this Part. 

(4) If your actions are inconsistent 

with any of the provisions of this Part, 

you are subject to enforcement action 

under Subpart K of this Part. 

(d) If you refuse to provide 

transportation to a passenger on his or 

her originally-scheduled flight on a 

basis relating to the individual’s 

disability, you must provide to the 

person a written statement of the reason 

for the refusal. This statement must 

include the specific basis for the 

carrier’s opinion that the refusal meets 

the standards of paragraph (c) of this 

section or is otherwise specifically 

permitted by this Part. You must 

provide this written statement to the 

person within 10 calendar days of the 

refusal of transportation. 

§ 382.21 May carriers limit access to 

transportation on the basis that a 

passenger has a communicable disease or 

other medical condition? 

(a) You must not do any of the 

following things on the basis that a 

passenger has a communicable disease 

or infection, unless you determine that 

the passenger’s condition poses a direct 

threat: 

(1) Refuse to provide transportation to 

the passenger; 

(2) Delay the passenger’s 

transportation (e.g., require the 

passenger to take a later flight); 

(3) Impose on the passenger any 

condition, restriction, or requirement 

not imposed on other passengers; or 

(4) Require the passenger to provide a 

medical certificate. 

(b) In assessing whether the 

passenger’s condition poses a direct 

threat, you must apply the provisions of 

§ 382.19(c)(1)–(2) of this subpart. 

(1) In making this assessment, you 

may rely on directives issued by public 

health authorities (e.g., the U.S. Centers 

for Disease Control or Public Health 

Service; comparable agencies in other 

countries; the World Health 

Organization). 

(2) In making this assessment, you 

must consider the significance of the 

consequences of a communicable 

disease and the degree to which it can 

be readily transmitted by casual contact 

in an aircraft cabin environment. 

Example 1 to Paragraph (b)(2): The 

common cold is readily transmissible in an 

aircraft cabin environment but does not have 

severe health consequences. Someone with a 

cold would not pose a direct threat. 

Example 2 to Paragraph (b)(2): AIDS has 

very severe health consequences but is not 

readily transmissible in an aircraft cabin 

environment. Someone would not pose a 

direct threat because he or she is HIVpositive or has AIDS. 

Example 3 to Paragraph (b)(2): SARS may 

be readily transmissible in an aircraft cabin 

environment and has severe health 

consequences. Someone with SARS probably 

poses a direct threat. 

(c) If a passenger with a 

communicable disease meeting the 

direct threat criteria of this section gives 

you a medical certificate of the kind 

outlined in § 382.23(c)(2) describing 

measures for preventing transmission of 

the disease during the normal course of 

the flight, you must provide 

transportation to the passenger, unless 

you are unable to carry out the 

measures. 

(d) If your action under this section 

results in the postponement of a 

passenger’s travel, you must permit the 

passenger to travel at a later time (up to 

90 days from the date of the postponed 

travel) at the fare that would have 

applied to the passenger’s originally 

scheduled trip without penalty or, at the 

passenger’s discretion, provide a refund 

for any unused flights, including return 

flights. 

(e) If you take any action under this 

section that restricts a passenger’s 

travel, you must, on the passenger’s 

request, provide a written explanation 

within 10 days of the request. 

§ 382.23 May carriers require a passenger 

with a disability to provide a medical 

certificate? 

(a) Except as provided in this section, 

you must not require a passenger with 

a disability to have a medical certificate 

as a condition for being provided 

transportation. 

(b)(1) You may require a medical 

certificate for a passenger with a 

disability—

(i) Who is traveling in a stretcher or 

incubator; 

(ii) Who needs medical oxygen during 

a flight; or 

(iii) Whose medical condition is such 

that there is reasonable doubt that the 

individual can complete the flight 

safely, without requiring extraordinary 

medical assistance during the flight. 

(2) For purposes of this paragraph, a 

medical certificate is a written statement 

from the passenger’s physician saying 

that the passenger is capable of 

completing the flight safely, without 

requiring extraordinary medical 

assistance during the flight. 

(3) To be valid, a medical certificate 

under this paragraph must be dated 

within 10 days of the scheduled date of 

the passenger’s initial departing flight. 

Example to paragraph (b)(3): A passenger 

who schedules a flight from New York to 

London on January 15 with a return on April 

15 would have to show a medical certificate 

dated January 5 or later. The passenger 

would not have to show a second medical 

certificate dated April 5 or later. 

(c)(1) You may also require a medical 

certificate for a passenger if he or she 

has a communicable disease or 

condition that could pose a direct threat 

to the health or safety of others on the 

flight. 

(2) For purposes of this paragraph, a 

medical certificate is a written statement 

from the passenger’s physician saying 

that the disease or infection would not, 

under the present conditions in the 

particular passenger’s case, be 

communicable to other persons during 

the normal course of a flight. The 

medical certificate must state any 

conditions or precautions that would 

have to be observed to prevent the 

transmission of the disease or infection 

to other persons in the normal course of 

a flight. A medical certificate under this 

paragraph must be dated within 10 days 

of the date of the flight for which it is 

presented. 

(d) As a carrier, you may require that 

a passenger with a medical certificate 

undergo additional medical review by 

you if there is a legitimate medical 

reason for believing that there has been 

a significant adverse change in the 

passenger’s condition since the issuance 

of the medical certificate or that the 

certificate significantly understates the 

passenger’s risk to the health of other 

persons on the flight. If the results of 

this medical review demonstrate that 

the passenger, notwithstanding the 

medical certificate, is likely to be unable 

to complete the flight without requiring 

extraordinary medical assistance (e.g., 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27671 

the passenger has apparent significant 

difficulty in breathing, appears to be in 

substantial pain, etc.) or would pose a 

direct threat to the health or safety of 

other persons on the flight, you may 

take an action otherwise prohibited 

under § 382.23(a) of this Part. 

§ 382.25 May a carrier require a passenger 

with a disability to provide advance notice 

that he or she is traveling on a flight? 

As a carrier, you must not require a 

passenger with a disability to provide 

advance notice of the fact that he or she 

is traveling on a flight. 

§ 382.27 May a carrier require a passenger 

with a disability to provide advance notice 

in order to obtain certain specific services 

in connection with a flight? 

(a) Except as provided in paragraph 

(b) of this section and §§ 382.133(c)(3) 

and 382.133(d)(3), as a carrier you must 

not require a passenger with a disability 

to provide advance notice in order to 

obtain services or accommodations 

required by this Part. 

(b) You may require a passenger with 

a disability to provide up to 72 hours’

advance notice and check in one hour 

before the check-in time for the general 

public to receive carrier-supplied inflight medical oxygen on international 

flights, 48 hours’ advance notice and 

check-in one hour before the check-in 

time for the general public to receive 

carrier-supplied in-flight medical 

oxygen on domestic flights, and 48 

hours’ advance notice and check-in one 

hour before the check-in time for the 

general public to use his/her ventilator, 

respirator, CPAP machine or POC. 

(c) You may require a passenger with 

a disability to provide up to 48 hours’

advance notice and check in one hour 

before the check-in time for the general 

public to receive the following services 

and accommodations. The services 

listed in paragraphs (c)(1) through (c)(3) 

of this section are optional; you are not 

required to provide them, but you may 

choose to do so. 

(1) Carriage of an incubator; 

(2) Hook-up for a respirator, 

ventilator, CPAP machine or POC to the 

aircraft electrical power supply; 

(3) Accommodation for a passenger 

who must travel in a stretcher; 

(4) Transportation for an electric 

wheelchair on an aircraft with fewer 

than 60 seats; 

(5) Provision of hazardous materials 

packaging for batteries or other assistive 

devices that are required to have such 

packaging; 

(6) Accommodation for a group of ten 

or more qualified individuals with a 

disability, who make reservations and 

travel as a group; and 

(7) Provision of an on-board 

wheelchair on an aircraft with more 

than 60 seats that does not have an 

accessible lavatory. 

(8) Transportation of an emotional 

support or psychiatric service animal in 

the cabin; 

(9) Transportation of a service animal 

on a flight segment scheduled to take 8 

hours or more; 

(10) Accommodation of a passenger 

who has both severe vision and hearing 

impairments (see § 382.29(b)(4)). 

(d) If the passenger with a disability 

provides the advance notice you 

require, consistent with this section, for 

a service that you must provide (see 

paragraphs (c)(4) through (c)(10) of this 

section) or choose to provide (see 

paragraphs (c)(1) through (c)(3) of this 

section), you must provide the 

requested service or accommodation. 

(e) Your reservation and other 

administrative systems must ensure that 

when passengers provide the advance 

notice that you require, consistent with 

this section, for services and 

accommodations, the notice is 

communicated, clearly and on time, to 

the people responsible for providing the 

requested service or accommodation. 

(f) If a passenger with a disability 

provides the advance notice you 

require, consistent with this section, 

and the passenger is forced to change to 

another flight (e.g., because of a flight 

cancellation), you must, to the 

maximum extent feasible, provide the 

accommodation on the new flight. If the 

new flight is another carrier’s flight, you 

must provide the maximum feasible 

assistance to the other carrier in 

providing the accommodation the 

passenger requested from you. 

(g) If a passenger does not meet 

advance notice or check-in requirements 

you establish consistent with this 

section, you must still provide the 

service or accommodation if you can do 

so by making reasonable efforts, without 

delaying the flight. 

§ 382.29 May a carrier require a passenger 

with a disability to travel with a safety 

assistant? 

(a) Except as provided in paragraph 

(b) of this section, you must not require 

that a passenger with a disability travel 

with another person as a condition of 

being provided air transportation. 

(b) You may require a passenger with 

a disability in one of the following 

categories to travel with a safety 

assistant as a condition of being 

provided air transportation, if you 

determine that a safety assistant is 

essential for safety: 

(1) A passenger traveling in a stretcher 

or incubator. The safety assistant for 

such a person must be capable of 

attending to the passenger’s in-flight 

medical needs; 

(2) A passenger who, because of a 

mental disability, is unable to 

comprehend or respond appropriately to 

safety instructions from carrier 

personnel, including the safety briefing 

required by 14 CFR 121.571(a)(3) and 

(a)(4) or 14 CFR 135.117(b) or the safety 

regulations of a foreign carrier’s 

government, as applicable; 

(3) A passenger with a mobility 

impairment so severe that the person is 

unable to physically assist in his or her 

own evacuation of the aircraft; 

(4) A passenger who has both severe 

hearing and severe vision impairments, 

if the passenger cannot establish some 

means of communication with carrier 

personnel that is adequate both to 

permit transmission of the safety 

briefing required by 14 CFR 121.57(a)(3) 

and (a)(4), 14 CFR 135,117(b) or the 

safety regulations of a foreign carrier’s 

government, as applicable, and to 

enable the passenger to assist in his or 

her own evacuation of the aircraft in the 

event of an emergency. You may require 

a passenger with severe hearing and 

vision impairment who wishes to travel 

without a safety assistant to notify you 

at least 48 hours in advance to provide 

this explanation. If the passenger fails to 

meet this notice requirement, however, 

you must still accommodate him or her 

to the extent practicable. 

(c)(1) If you determine that a person 

meeting the criteria of paragraph (b)(2), 

(b)(3) or (b)(4) of this section must travel 

with a safety assistant, contrary to the 

individual’s self-assessment that he or 

she is capable of traveling 

independently, you must not charge for 

the transportation of the safety assistant. 

You are not required to find or provide 

the safety assistant, however. 

(2) For purposes of paragraph (b)(4) of 

this section, you may require, contrary 

to the individual’s self-assessment, that 

an individual with both severe hearing 

and vision impairments must travel 

with a safety assistant if you determine 

that—

(i) The means of communication that 

the individual has explained to you 

does not adequately satisfy the 

objectives identified in paragraph (b)(4) 

of this section; or 

(ii) The individual proposes to 

establish communication by means of 

finger spelling and you cannot, within 

the time following the individual’s 

notification, arrange for a flight crew 

member who can communicate using 

this method to serve the passenger’s 

flight. 

(3) If a passenger voluntarily chooses 

to travel with a personal care attendant 


rwilkins on PROD1PC63 with RULES2
27672 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

or safety assistant that you do not 

require, you may charge for the 

transportation of that person. 

(d) If, because there is not a seat 

available on a flight for a safety assistant 

whom the carrier has determined to be 

necessary, a passenger with a disability 

holding a confirmed reservation is 

unable to travel on the flight, you must 

compensate the passenger with a 

disability in an amount to be calculated 

as provided for instances of involuntary 

denied boarding under 14 CFR part 250, 

where part 250 applies. 

(e) For purposes of determining 

whether a seat is available for a safety 

assistant, you must deem the safety 

assistant to have checked in at the same 

time as the passenger with a disability. 

(f) Concern that a passenger with a 

disability may need personal care 

services (e.g., assistance in using 

lavatory facilities or with eating) is not 

a basis for requiring the passenger to 

travel with a safety assistant. You must 

explain this clearly in training or 

information you provide to your 

employees. You may advise passengers 

that your personnel are not required to 

provide such services. 

§ 382.31 May carriers impose special 

charges on passengers with a disability for 

providing services and accommodations 

required by this rule? 

(a) Except as otherwise provided in 

this Part you must not, as a carrier, 

impose charges for providing facilities, 

equipment, or services that this rule 

requires to be provided to passengers 

with a disability. You may charge for 

services that this Part does not require. 

(b) You may charge a passenger for 

the use of more than one seat if the 

passenger’s size or condition (e.g., use of 

a stretcher) causes him or her to occupy 

the space of more than one seat. This is 

not considered a special charge under 

this section. 

(c) If your web site that passengers use 

to make reservations or purchase tickets 

is not accessible to a passenger with a 

disability, you must not charge a fee to 

the passenger who is consequently 

unable to make a reservation or 

purchase a ticket on that site for using 

another booking method (e.g., making a 

reservation by phone). If a discount is 

made available to a passenger who 

books a flight using an inaccessible web 

site, you must make that discount 

available to a passenger with a disability 

who cannot use the web site and who 

purchases a ticket from you using 

another method. 

§ 382.33 May carriers impose other 

restrictions on passengers with a disability 

that they do not impose on other 

passengers? 

(a) As a carrier, you must not subject 

passengers with a disability to 

restrictions that do not apply to other 

passengers, except as otherwise 

permitted in this Part (e.g., advance 

notice requirements for certain services 

permitted by § 382.27). 

(b) Restrictions you must not impose 

on passengers with a disability include, 

but are not limited to, the following: 

(1) Restricting passengers’’ movement 

within the terminal; 

(2) Requiring passengers to remain in 

a holding area or other location in order 

to receive transportation, services, or 

accommodations; 

(3) Making passengers sit on blankets 

on the aircraft; 

(4) Making passengers wear badges or 

other special identification (e.g., similar 

to badges worn by unaccompanied 

minors); or 

(5) Otherwise mandating separate 

treatment for passengers with a 

disability, unless permitted or required 

by this Part or other applicable Federal 

requirements. 

§ 382.35 May carriers require passengers 

with a disability to sign waivers or 

releases? 

(a) As a carrier, you must not require 

passengers with a disability to sign a 

release or waiver of liability in order to 

receive transportation or to receive 

services or accommodations for a 

disability. 

(b) You must not require passengers 

with a disability to sign waivers of 

liability for damage to or loss of 

wheelchairs or other assistive devices, 

or for the loss of, death of, or injury to 

service animals. Carriers may note preexisting damage to an assistive device to 

the same extent that carriers do this 

with respect to other checked baggage. 

Subpart C—Information for 

Passengers 

§ 382.41 What flight-related information 

must carriers provide to qualified 

individuals with a disability? 

As a carrier, you must provide the 

following information, on request, to 

qualified individuals with a disability or 

persons making inquiries on their behalf 

concerning the accessibility of the 

aircraft expected to make a particular 

flight. The information you provide 

must be specific to the aircraft you 

expect to use for the flight unless it is 

unfeasible for you to do so (e.g., because 

unpredictable circumstances such as 

weather or a mechanical problem 

require substitution of another aircraft 

that could affect the location or 

availability of an accommodation). The 

required information is: 

(a) The specific location of seats, if 

any, with movable armrests (i.e., by row 

and seat number); 

(b) The specific location of seats (i.e., 

by row and seat number) that the 

carrier, consistent with this Part, does 

not make available to passengers with a 

disability (e.g., exit row seats); 

(c) Any aircraft-related, servicerelated or other limitations on the 

ability to accommodate passengers with 

a disability, including limitations on the 

availability of level-entry boarding to 

the aircraft at any airport involved with 

the flight. You must provide this 

information to any passenger who states 

that he or she uses a wheelchair for 

boarding, even if the passenger does not 

explicitly request the information. 

(d) Any limitations on the availability 

of storage facilities, in the cabin or in 

the cargo bay, for mobility aids or other 

assistive devices commonly used by 

passengers with a disability, including 

storage in the cabin of a passenger’s 

wheelchair as provided in §§ 382.67 and 

382.123 of this Part; 

(e) Whether the aircraft has an 

accessible lavatory; and 

(f) The types of services to passengers 

with a disability that are or are not 

available on the flight. 

§ 382.43 Must information and reservation 

services of carriers be accessible to 

individuals who are deaf, hard of hearing, 

or deaf-blind? 

(a) If, as a carrier, you provide 

telephone reservation and information 

service to the public, you must make 

this service available to individuals who 

use a text telephone (TTY), whether via 

your own TTY, voice relay, or other 

available technology, as follows: 

(1) You must provide access to TTY 

users during the same hours as the 

telephone service is available to the 

general public. 

(2) You must ensure that the response 

time for answering calls and the level of 

service provided to TTY users is 

substantially equivalent to the response 

time and level of service provided to the 

general public (i.e., non-TTY users). 

(3) You must not subject TTY users to 

charges exceeding those that apply to 

non-TTY users of telephone information 

and reservation service. 

(4) In any medium in which you list 

the telephone number of your 

information and reservation service for 

the general public, you must also list 

your TTY number if you have one. If 

you do not have a TTY number, you 

must state how TTY users can reach 

your information and reservation 

service (e.g., via a voice relay service). 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27673 

(5) If you are a foreign carrier, you 

must meet this requirement by May 13, 

2010. 

(b) The requirements of paragraph (a) 

do not apply to you in any country in 

which the telecommunications 

infrastructure does not readily permit 

compliance. 

§ 382.45 Must carriers make copies of this 

Part available to passengers? 

(a) As a carrier, you must keep a 

current copy of this Part at each airport 

you serve. As a foreign carrier, you must 

keep a copy of this Part at each airport 

serving a flight you operate that begins 

or ends at a U.S. airport. You must make 

this copy available for review by any 

member of the public on request. 

(b) If you have a Web site, it must 

provide notice to consumers that they 

can obtain a copy of this Part in an 

accessible format from the Department 

of Transportation by any of the 

following means: 

(1) For calls made from within the 

United States, by telephone via the TollFree Hotline for Air Travelers with 

Disabilities at 1–800–778–4838 (voice) 

or 1–800–455–9880 (TTY), 

(2) By telephone to the Aviation 

Consumer Protection Division at 202–

366–2220 (voice) or 202–366–0511 

(TTY), 

(3) By mail to the Air Consumer 

Protection Division, C–75, U.S. 

Department of Transportation, 1200 

New Jersey Ave., SE., West Building, 

Room W96–432, Washington, DC 20590, 

and 

(4) On the Aviation Consumer 

Protection Division’s Web site (http:// 

airconsumer.ost.dot.gov). 

Subpart D—Accessibility of Airport 

Facilities 

§ 382.51 What requirements must carriers 

meet concerning the accessibility of airport 

facilities? 

(a) As a carrier, you must comply with 

the following requirements with respect 

to all terminal facilities you own, lease, 

or control at a U.S. airport: 

(1) You must ensure that terminal 

facilities providing access to air 

transportation are readily accessible to 

and usable by individuals with 

disabilities, including individuals who 

use wheelchairs. You are deemed to 

comply with this obligation if the 

facilities meet requirements applying to 

places of public accommodation under 

Department of Justice (DOJ) regulations 

implementing Title III of the Americans 

with Disabilities Act (ADA). 

(2) With respect to any situation in 

which boarding and deplaning by levelentry loading bridges or accessible 

passenger lounges to and from an 

aircraft is not available, you must ensure 

that there is an accessible route between 

the gate and the area from which aircraft 

are boarded (e.g., the tarmac in a 

situation in which level-entry boarding 

is not available). An accessible route is 

one meeting the requirements of the 

Americans with Disabilities Act 

Accessibility Guidelines (ADAAG), 

sections 4.3.3 through 4.3.10. 

(3) You must ensure that systems of 

intra- and inter-terminal transportation, 

including, but not limited to, moving 

sidewalks, shuttle vehicles and people 

movers, comply with applicable 

requirements of the Department of 

Transportation’s ADA rules (49 CFR 

parts 37 and 38). 

(4) Your contracts or leases with 

airport operators concerning the use of 

airport facilities must set forth your 

airport accessibility responsibility under 

this Part and that of the airport operator 

under applicable section 504 and ADA 

rules of the Department of 

Transportation and Department of 

Justice. 

(5) In cooperation with the airport 

operator and in consultation with local 

service animal training organization(s), 

you must provide animal relief areas for 

service animals that accompany 

passengers departing, connecting, or 

arriving at an airport on your flights. 

(6) You must enable captioning at all 

times on all televisions and other audiovisual displays that are capable of 

displaying captions and that are located 

in any portion of the terminal to which 

any passengers have access on May 13, 

2009. The captioning must be highcontrast insofar as is feasible. 

(7) You must replace any televisions 

and other audio-visual displays 

providing passengers with safety 

briefings, information, or entertainment 

that do not have high-contrast 

captioning capability with equipment 

that does have such capability whenever 

such equipment is replaced in the 

normal course of operations and/or 

whenever areas of the terminal in which 

such equipment is located are 

undergoing substantial renovation or 

expansion. 

(8) If you newly acquire televisions 

and other audio-visual displays for 

passenger safety briefings, information, 

or entertainment on or after May 13, 

2009, such equipment must have highcontrast captioning capability. 

(b) As a carrier, you must ensure that 

passengers with a disability can readily 

use all terminal facilities you own, 

lease, or control at a foreign airport. In 

the case of foreign carriers, this 

requirement applies only to terminal 

facilities that serve flights covered by 

§ 382.7 of this part. 

(1) This means that passengers with a 

disability must be able to move readily 

through such terminal facilities to get to 

or from the gate and any other area from 

which passengers board the aircraft you 

use for such flights (e.g., the tarmac in 

the case of flights that do not use levelentry boarding). This obligation is in 

addition to your obligation to provide 

enplaning, deplaning, and connecting 

assistance to passengers. 

(2) You may meet this obligation 

through any combination of facility 

accessibility, auxiliary aids, equipment, 

the assistance of personnel, or other 

appropriate means consistent with the 

safety and dignity of passengers with a 

disability. 

(c) As a foreign carrier, you must meet 

the requirements of this section by May 

13, 2010. As a U.S. carrier, you must 

meet the requirements of paragraph (b) 

of this section by May 13, 2010. 

§ 382.53 What information must carriers 

give individuals with a vision or hearing 

impairment at airports? 

(a)(1) As a U.S. carrier, you must 

ensure that passengers with a disability 

who identify themselves as persons 

needing visual or hearing assistance 

have prompt access to the same 

information provided to other 

passengers at each gate, ticketing area, 

and customer service desk that you 

own, lease, or control at any U.S. or 

foreign airport, to the extent that this 

does not interfere with employees’

safety and security duties as set forth in 

FAA, TSA, and applicable foreign 

regulations. 

(2) As a foreign carrier, you must 

make this information available at each 

gate, ticketing area, and customer 

service desk that you own, lease, or 

control at any U.S. airport. At foreign 

airports, you must make this 

information available only at gates, 

ticketing areas, or customer service 

desks that you own, lease, or control 

and only for flights that begin or end in 

the U.S. 

(3) As a U.S. or foreign carrier, at any 

U.S. airport covered by this paragraph 

where the airport has effective control 

over the covered gates, ticketing areas, 

and customer service desks, you and the 

airport are jointly responsible for 

compliance. 

(b) The information you must provide 

under paragraph (a) of this section 

includes, but is not limited to, the 

following: Information concerning flight 

safety, ticketing, flight check-in, flight 

delays or cancellations, schedule 

changes, boarding information, 

connections, gate assignments, checking 

baggage, volunteer solicitation on 

oversold flights (e.g., offers of 


rwilkins on PROD1PC63 with RULES2
27674 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

compensation for surrendering a 

reservation), individuals being paged by 

airlines, aircraft changes that affect the 

travel of persons with disabilities, and 

emergencies (e.g., fire, bomb threat). 

(c) With respect to information on 

claiming baggage, you must provide the 

information to passengers who identify 

themselves as persons needing visual or 

hearing assistance no later than you 

provide this information to other 

passengers. 

§ 382.55 May carriers impose security 

screening procedures for passengers with 

disabilities that go beyond TSA 

requirements or those of foreign 

governments? 

(a) All passengers, including those 

with disabilities, are subject to TSA 

security screening requirements at U.S. 

airports. In addition, passengers at 

foreign airports, including those with 

disabilities, may be subject to security 

screening measures required by law of 

the country in which the airport is 

located. 

(b) If, as a carrier, you impose security 

screening procedures for passengers 

with disabilities that go beyond those 

mandated by TSA (or, at a foreign 

airport, beyond the law of the country 

in which the airport is located), you 

must ensure that they meet the 

following requirements: 

(1) You must use the same criteria for 

applying security screening procedures 

to passengers with disabilities as to 

other passengers. 

(2) You must not subject a passenger 

with a disability to special screening 

procedures because the person is 

traveling with a mobility aid or other 

assistive device if the person using the 

aid or device clears the security system 

without activating it. 

(i) However, your security personnel 

may examine a mobility aid or assistive 

device which, in their judgment, may 

conceal a weapon or other prohibited 

item. 

(ii) You may conduct security 

searches of qualified individuals with a 

disability whose aids activate the 

security system in the same manner as 

for other passengers. 

(3) You must not require private 

security screenings of passengers with a 

disability to a greater extent, or for any 

different reason, than for other 

passengers. 

(c) Except as provided in paragraph 

(c) of this section, if a passenger with a 

disability requests a private screening in 

a timely manner, you must provide it in 

time for the passenger to enplane. 

(d) If you use technology that can 

conduct an appropriate screening of a 

passenger with a disability without 

necessitating a physical search of the 

person, you are not required to provide 

a private screening. 

§ 382.57 What services must carriers 

provide if their automated kiosks are 

inaccessible? 

As a carrier, if your automated kiosks 

in airport terminals cannot readily be 

used by a passenger with a disability for 

such functions as ticketing and 

obtaining boarding passes that the 

kiosks make available to other 

passengers, you must provide 

equivalent service to the passenger (e.g., 

by assistance from your personnel in 

using the kiosk or allowing the 

passenger to come to the front of the 

line at the check-in counter). 

Subpart E—Accessibility of Aircraft 

§ 382.61 What are the requirements for 

movable aisle armrests? 

(a) As a carrier, you must ensure that 

aircraft with 30 or more passenger seats 

on which passenger aisle seats have 

armrests are equipped with movable 

aisle armrests on at least one-half of the 

aisle seats in rows in which passengers 

with mobility impairments are 

permitted to sit under FAA or 

applicable foreign government safety 

rules. 

(b) You are not required to provide 

movable armrests on aisle seats of rows 

which a passenger with a mobility 

impairment is precluded from using by 

an FAA safety rule. 

(c) You must ensure that these 

movable aisle armrests are provided 

proportionately in all classes of service 

in the cabin. For example, if 80 percent 

of the aisle seats in which passengers 

with mobility impairments may sit are 

in coach, and 20 percent are in first 

class, then 80 percent of the movable 

aisle armrests must be in coach, with 20 

percent in first class. 

(d) For aircraft equipped with 

movable aisle armrests, you must 

configure cabins, or establish 

administrative systems, to ensure that 

passengers with mobility impairments 

or other passengers with a disability can 

readily identify and obtain seating in 

rows with movable aisle armrests. You 

must provide this information by 

specific seat and row number. 

(e) You are not required to retrofit 

cabin interiors of existing aircraft to 

comply with the requirements of this 

section. However, if you replace any of 

an aircraft’s aisle seats with newly 

manufactured seats, the new seats must 

include movable aisle armrests as 

required by this section. However, an 

aircraft is never required to have 

movable aisle armrests on more than 

one half of the aisle seats. 

(f) As a foreign carrier, you must 

comply with the requirements of 

paragraphs (a) through (d) of this section 

with respect to new aircraft you operate 

that were initially ordered after May 13, 

2009 or which are delivered after May 

13, 2010. As a U.S. carrier, the 

requirements of paragraphs (a), (b), (d), 

and (e) of this section applies to you 

with respect to new aircraft you operate 

that were initially ordered after April 5, 

1990, or which are delivered after April 

5, 1992. As a U.S. carrier, paragraph (c) 

of this section applies to you with 

respect to new aircraft you operate that 

were initially ordered after May 13, 

2009 or which were delivered after May 

13, 2010. 

(g) As a foreign carrier, you must 

comply with the requirements of 

paragraph (e) of this section with 

respect to seats ordered after May 13, 

2009. 

§ 382.63 What are the requirements for 

accessible lavatories? 

(a) As a carrier, you must ensure that 

aircraft with more than one aisle in 

which lavatories are provided shall 

include at least one accessible lavatory. 

(1) The accessible lavatory must 

permit a qualified individual with a 

disability to enter, maneuver within as 

necessary to use all lavatory facilities, 

and leave, by means of the aircraft’s onboard wheelchair. 

(2) The accessible lavatory must 

afford privacy to persons using the onboard wheelchair equivalent to that 

afforded ambulatory users. 

(3) The lavatory shall provide door 

locks, accessible call buttons, grab bars, 

faucets and other controls, and 

dispensers usable by qualified 

individuals with a disability, including 

wheelchair users and persons with 

manual impairments. 

(b) With respect to aircraft with only 

one aisle in which lavatories are 

provided, you may, but are not required 

to, provide an accessible lavatory. 

(c) You are not required to retrofit 

cabin interiors of existing aircraft to 

comply with the requirements of this 

section. However, if you replace a 

lavatory on an aircraft with more than 

one aisle, you must replace it with an 

accessible lavatory. 

(d) As a foreign carrier, you must 

comply with the requirements of 

paragraph (a) of this section with 

respect to new aircraft you operate that 

were initially ordered after May 13, 

2009 or which are delivered after May 

13, 2010. As a U.S. carrier, this 

requirement applies to you with respect 

to new aircraft you operate that were 

initially ordered after April 5, 1990, or 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27675 

which were delivered after April 5, 

1992. 

(e) As a foreign carrier, you must 

comply with the requirements of 

paragraph (c) of this section beginning 

May 13, 2009. As a U.S. carrier, these 

requirements apply to you with respect 

to new aircraft you operate that were 

initially ordered after April 5, 1990, or 

which were delivered after April 5, 

1992. 

§ 382.65 What are the requirements 

concerning on-board wheelchairs? 

(a) As a carrier, you must equip 

aircraft that have more than 60 

passenger seats, and that have an 

accessible lavatory (whether or not 

having such a lavatory is required by 

§ 382.63 of this Part) with an on-board 

wheelchair. The Aerospatiale/Aeritalia 

ATR–72 and the British Aerospace 

Advanced Turboprop (ATP), in 

configurations having between 60 and 

70 passenger seats, are exempt from this 

requirement. 

(b) If a passenger asks you to provide 

an on-board wheelchair on a particular 

flight, you must provide it if the aircraft 

being used for the flight has more than 

60 passenger seats, even if the aircraft 

does not have an accessible lavatory. 

(1) The basis of the passenger’s 

request must be that he or she can use 

an inaccessible lavatory but cannot 

reach it from a seat without using an onboard wheelchair. 

(2) You may require the passenger to 

provide the advance notice specified in 

§ 382.27 to receive this service. 

(c) You must ensure that on-board 

wheelchairs meet the following 

standards: 

(1) On-board wheelchairs must 

include footrests, armrests which are 

movable or removable, adequate 

occupant restraint systems, a backrest 

height that permits assistance to 

passengers in transferring, structurally 

sound handles for maneuvering the 

occupied chair, and wheel locks or 

another adequate means to prevent chair 

movement during transfer or turbulence. 

(2) The chair must be designed to be 

compatible with the maneuvering space, 

aisle width, and seat height of the 

aircraft on which it is to be used, and 

to be easily pushed, pulled, and turned 

in the cabin environment by carrier 

personnel. 

(d) As a foreign carrier, you must meet 

this requirement as of May 13, 2010. As 

a U.S. carrier, you must meet this 

requirement by May 13, 2009. 

§ 382.67 What is the requirement for 

priority space in the cabin to store 

passengers’ wheelchairs? 

(a) As a carrier, you must ensure that 

there is a priority space in the cabin of 

sufficient size to stow at least one 

typical adult-sized folding, collapsible, 

or break-down manual passenger 

wheelchair, the dimensions of which 

are within a space of 13 inches by 36 

inches by 42 inches without having to 

remove the wheels or otherwise 

disassemble it. This requirement applies 

to any aircraft with 100 or more 

passenger seats; and 

(b) This space must be other than the 

overhead compartments and under-seat 

spaces routinely used for passengers’

carry-on items. 

(c) As a foreign carrier, you must meet 

the requirement of paragraph (a) of this 

section for new aircraft ordered after 

May 13, 2009 or delivered after May 13, 

2010. As a U.S. carrier, this requirement 

applies to you with respect to new 

aircraft you operate that were ordered 

after April 5, 1990, or which were 

delivered after April 5, 1992. 

§ 382.69 What requirements must carriers 

meet concerning the accessibility of videos, 

DVDs, and other audio-visual presentations 

shown on-aircraft to individuals who are 

deaf or hard of hearing? 

(a) As a carrier, you must ensure that 

all new videos, DVDs, and other audiovisual displays played on aircraft for 

safety purposes, and all such new 

audio-visual displays played on aircraft 

for informational purposes that were 

created under your control, are highcontrast captioned. The captioning must 

be in the predominant language or 

languages in which you communicate 

with passengers on the flight. 

(b) The requirements of paragraph (a) 

of this section go into effect with respect 

to audio-visual displays used for safety 

purposes on November 10, 2009. 

(c) Between May 13, 2009 and 

November 9, 2009, U.S. carriers must 

ensure that all videos, DVDs, and other 

audio-visual displays played on aircraft 

for safety purposes have open 

captioning or an inset for a sign 

language interpreter, unless such 

captioning or inset either would 

interfere with the video presentation so 

as to render it ineffective or would not 

be large enough to be readable, in which 

case these carriers must use an 

equivalent non-video alternative for 

transmitting the briefing to passengers 

with hearing impairments. 

(d) The requirements of paragraph (a) 

of this section go into effect with respect 

to informational displays on January 8, 

2010. 

§ 382.71 What other aircraft accessibility 

requirements apply to carriers? 

(a) As a carrier, you must maintain all 

aircraft accessibility features in proper 

working order. 

(b) You must ensure that any 

replacement or refurbishing of the 

aircraft cabin or its elements does not 

reduce the accessibility of that element 

to a level below that specified in this 

Part. 

Subpart F—Seating Accommodations 

§ 382.81 For which passengers must 

carriers make seating accommodations? 

As a carrier, you must provide the 

following seating accommodations to 

the following passengers on request, if 

the passenger self-identifies to you as 

having a disability specified in this 

section and the type of seating 

accommodation in question exists on 

the particular aircraft. Once the 

passenger self-identifies to you, you 

must ensure that the information is 

recorded and properly transmitted to 

personnel responsible for providing the 

accommodation. 

(a) For a passenger who uses an aisle 

chair to access the aircraft and who 

cannot readily transfer over a fixed aisle 

armrest, you must provide a seat in a 

row with a movable aisle armrest. You 

must ensure that your personnel are 

trained in the location and proper use 

of movable aisle armrests, including 

appropriate transfer techniques. You 

must ensure that aisle seats with 

movable armrests are clearly 

identifiable. 

(b) You must provide an adjoining 

seat for a person assisting a passenger 

with a disability in the following 

circumstances: 

(1) When a passenger with a disability 

is traveling with a personal care 

attendant who will be performing a 

function for the individual during the 

flight that airline personnel are not 

required to perform (e.g., assistance 

with eating); 

(2) When a passenger with a vision 

impairment is traveling with a reader/ 

assistant who will be performing 

functions for the individual during the 

flight; 

(3) When a passenger with a hearing 

impairment is traveling with an 

interpreter who will be performing 

functions for the individual during the 

flight; or 

(4) When you require a passenger to 

travel with a safety assistant (see 

§ 382.29). 

(c) For a passenger with a disability 

traveling with a service animal, you 

must provide, as the passenger requests, 

either a bulkhead seat or a seat other 

than a bulkhead seat. 

(d) For a passenger with a fused or 

immobilized leg, you must provide a 

bulkhead seat or other seat that provides 

greater legroom than other seats, on the 


rwilkins on PROD1PC63 with RULES2
27676 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

side of an aisle that better 

accommodates the individual’s 

disability. 

§ 382.83 Through what mechanisms do 

carriers make seating accommodations? 

(a) If you are a carrier that provides 

advance seat assignments to passengers 

(i.e., offer seat assignments to 

passengers before the day of the flight), 

you must comply with the requirements 

of § 382.81 of this Part by any of the 

following methods: 

(1) You may ‘‘block’’ an adequate 

number of the seats used to provide the 

seating accommodations required by 

§ 382.81. 

(i) You must not assign these seats to 

passengers who do not meet the criteria 

of § 382.81 until 24 hours before the 

scheduled departure of the flight. 

(ii) At any time up until 24 hours 

before the scheduled departure of the 

flight, you must assign a seat meeting 

the requirements of this section to a 

passenger with a disability meeting one 

or more of the requirements of § 382.81 

who requests it, at the time the 

passenger initially makes the request. 

(iii) If a passenger with a disability 

specified in § 382.81 does not make a 

request at least 24 hours before the 

scheduled departure of the flight, you 

must meet the passenger’s request to the 

extent practicable, but you are not 

required to reassign a seat assigned to 

another passenger in order to do so. 

(2) You may designate an adequate 

number of the seats used to provide 

seating accommodations required by 

§ 382.81 as ‘‘priority seats’’ for 

passengers with a disability. 

(i) You must provide notice that all 

passengers assigned these seats (other 

than passengers with a disability listed 

in § 382.81 of this Part) are subject to 

being reassigned to another seat if 

necessary to provide a seating 

accommodation required by this 

section. 

(ii) You may provide this notice 

through your computer reservation 

system, verbal information provided by 

reservation personnel, ticket notices, 

gate announcements, counter signs, seat 

cards or notices, frequent-flier literature, 

or other appropriate means. 

(iii) You must assign a seat meeting 

the requirements of this section to a 

passenger with a disability listed in 

§ 382.81 of this Part who requests the 

accommodation at the time the 

passenger makes the request. You may 

require such a passenger to check in and 

request the seating accommodation at 

least one hour before the standard 

check-in time for the flight. If all 

designated priority seats that would 

accommodate the passenger have been 

assigned to other passengers, you must 

reassign the seats of the other 

passengers as needed to provide the 

requested accommodation. 

(iv) If a passenger with a disability 

listed in § 382.81 does not check in at 

least an hour before the standard checkin time for the general public, you must 

meet the individual’s request to the 

extent practicable, but you are not 

required to reassign a seat assigned to 

another passenger in order to do so. 

(b) If you assign seats to passengers, 

but not until the date of the flight, you 

must use the ‘‘priority seating’’

approach of paragraph (a)(2) of this 

section. 

(c) If you do not provide advance seat 

assignments to passengers, you must 

allow passengers specified in § 382.81 to 

board the aircraft before other 

passengers, including other 

‘‘preboarded’’ passengers, so that the 

passengers needing seating 

accommodations can select seats that 

best meet their needs. 

(d) As a carrier, if you wish to use a 

different method of providing seating 

assignment accommodations to 

passengers with disabilities from those 

specified in this subpart, you must 

obtain the written concurrence of the 

Department of Transportation. Contact 

the Department at the address cited in 

§ 382.159 of this Part. 

§ 382.85 What seating accommodations 

must carriers make to passengers in 

circumstances not covered by § 382.81 (a) 

through (d)? 

As a carrier, you must provide the 

following seating accommodations to a 

passenger who self-identifies as having 

a disability other than one in the four 

categories listed in § 382.81 (a) through 

(d) of this Part and as needing a seat 

assignment accommodation in order to 

readily access and use the carrier’s air 

transportation services: 

(a) As a carrier that assigns seats in 

advance, you must provide 

accommodations in the following ways: 

(1) If you use the ‘‘seat-blocking’’

mechanism of § 382.83(a)(1) of this Part, 

you must implement the requirements 

of this section as follows: 

(i) When a passenger with a disability 

not described in § 382.81(a) through (d) 

of this Part makes a reservation more 

than 24 hours before the scheduled 

departure time of the flight, you are not 

required to offer the passenger one of 

the seats blocked for the use of 

passengers with a disability listed under 

§ 382.81. 

(ii) However, you must assign to the 

passenger any seat, not already assigned 

to another passenger that accommodates 

the passenger’s needs, even if that seat 

is not available for assignment to the 

general passenger population at the time 

of the request. 

(2) If you use the ‘‘designated priority 

seats’’ mechanism of § 382.83(a)(2) of 

this Part, you must implement the 

requirements of this section as follows: 

(i) When a passenger with a disability 

not described in § 382.81 makes a 

reservation, you must assign to the 

passenger any seat, not already assigned 

to another passenger, that 

accommodates the passenger’s needs, 

even if that seat is not available for 

assignment to the general passenger 

population at the time of the request. 

You may require a passenger making 

such a request to check in one hour 

before the standard check-in time for the 

flight. 

(ii) If such a passenger is assigned to 

a designated priority seat, he or she is 

subject to being reassigned to another 

seat as provided in § 382.83(a)(2)(i) of 

this subpart. 

(b) On flights where advance seat 

assignments are not offered, you must 

provide seating accommodations under 

this section by allowing passengers to 

board the aircraft before other 

passengers, including other 

‘‘preboarded’’ passengers, so that the 

individuals needing seating 

accommodations can select seats that 

best meet their needs. 

(c) If you assign seats to passengers, 

but not until the date of the flight, you 

must use the ‘‘priority seating’’

approach of section 382.83(a)(2). 

§ 382.87 What other requirements pertain 

to seating for passengers with a disability? 

(a) As a carrier, you must not exclude 

any passenger with a disability from any 

seat or require that a passenger with a 

disability sit in any particular seat, on 

the basis of disability, except to comply 

with FAA or applicable foreign 

government safety requirements. 

(b) In responding to requests from 

individuals for accommodations under 

this subpart, you must comply with 

FAA and applicable foreign government 

safety requirements, including those 

pertaining to exit seating (see 14 CFR 

121.585 and 135.129). 

(c) If a passenger’s disability results in 

involuntary active behavior that would 

result in the person properly being 

refused transportation under § 382.19, 

and the passenger could be transported 

safely if seated in another location, you 

must offer to let the passenger sit in that 

location as an alternative to being 

refused transportation. 

(d) If you have already provided a seat 

to a passenger with a disability to 

furnish an accommodation required by 

this subpart, you must not (except in the 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27677 

circumstance described in 

§ 382.85(a)(2)(ii)) reassign that passenger 

to another seat in response to a 

subsequent request from another 

passenger with a disability, without the 

first passenger’s consent. 

(e) You must never deny 

transportation to any passenger in order 

to provide accommodations required by 

this subpart. 

(f) You are not required to furnish 

more than one seat per ticket or to 

provide a seat in a class of service other 

than the one the passenger has 

purchased in order to provide an 

accommodation required by this Part. 

Subpart G—Boarding, Deplaning, and 

Connecting Assistance 

§ 382.91 What assistance must carriers 

provide to passengers with a disability in 

moving within the terminal? 

(a) As a carrier, you must provide or 

ensure the provision of assistance 

requested by or on behalf of a passenger 

with a disability, or offered by carrier or 

airport operator personnel and accepted 

by a passenger with a disability, in 

transportation between gates to make a 

connection to another flight. If the 

arriving flight and the departing 

connecting flight are operated by 

different carriers, the carrier that 

operated the arriving flight (i.e., the one 

that operates the first of the two flights 

that are connecting) is responsible for 

providing or ensuring the provision of 

this assistance, even if the passenger 

holds a separate ticket for the departing 

flight. It is permissible for the two 

carriers to mutually agree that the 

carrier operating the departing 

connecting flight (i.e., the second flight 

of the two) will provide this assistance, 

but the carrier operating the arriving 

flight remains responsible under this 

section for ensuring that the assistance 

is provided. 

(b) You must also provide or ensure 

the provision of assistance requested by 

or on behalf of a passenger with a 

disability, or offered by carrier or airport 

operator personnel and accepted by a 

passenger with a disability, in moving 

from the terminal entrance (or a vehicle 

drop-off point adjacent to the entrance) 

through the airport to the gate for a 

departing flight, or from the gate to the 

terminal entrance (or a vehicle pick-up 

point adjacent to the entrance after an 

arriving flight). 

(1) This requirement includes 

assistance in accessing key functional 

areas of the terminal, such as ticket 

counters and baggage claim. 

(2) This requirement also includes a 

brief stop upon the passenger’s request 

at the entrance to a rest room (including 

an accessible rest room when 

requested). As a carrier, you are 

required to make such a stop only if the 

rest room is available on the route to the 

destination of the enplaning, deplaning, 

or connecting assistance and you can 

make the stop without unreasonable 

delay. To receive such assistance, the 

passenger must self-identify as being an 

individual with a disability needing the 

assistance. 

(c) As a carrier at a U.S. airport, you 

must, on request, in cooperation with 

the airport operator, provide for 

escorting a passenger with a service 

animal to an animal relief area provided 

under § 382.51(a)(5) of this Part. 

(d) As part of your obligation to 

provide or ensure the provision of 

assistance to passengers with 

disabilities in moving through the 

terminal (e.g., between the terminal 

entrance and the gate, between gate and 

aircraft, from gate to a baggage claim 

area), you must assist passengers who 

are unable to carry their luggage because 

of a disability with transporting their 

gate-checked or carry-on luggage. You 

may request the credible verbal 

assurance that a passenger cannot carry 

the luggage in question. If a passenger 

is unable to provide credible assurance, 

you may require the passenger to 

provide documentation as a condition of 

providing this service. 

§ 382.93 Must carriers offer preboarding to 

passengers with a disability? 

As a carrier, you must offer 

preboarding to passengers with a 

disability who self-identify at the gate as 

needing additional time or assistance to 

board, stow accessibility equipment, or 

be seated. 

§ 382. 95 What are carriers’ general 

obligations with respect to boarding and 

deplaning assistance? 

(a) As a carrier, you must promptly 

provide or ensure the provision of 

assistance requested by or on behalf of 

passengers with a disability, or offered 

by carrier or airport operator personnel 

and accepted by passengers with a 

disability, in enplaning and deplaning. 

This assistance must include, as needed, 

the services of personnel and the use of 

ground wheelchairs, accessible 

motorized carts, boarding wheelchairs, 

and/or on-board wheelchairs where 

provided in accordance with this Part, 

and ramps or mechanical lifts. 

(b) As a carrier, you must, except as 

otherwise provided in this subpart, 

provide boarding and deplaning 

assistance through the use of lifts or 

ramps at any U.S. commercial service 

airport with 10,000 or more annual 

enplanements where boarding and 

deplaning by level-entry loading bridges 

or accessible passenger lounges is not 

available. 

§ 382.97 To which aircraft does the 

requirement to provide boarding and 

deplaning assistance through the use of 

lifts apply? 

The requirement of section 382.95(b) 

of this Part to provide boarding and 

deplaning assistance through the use of 

lifts applies with respect to all aircraft 

with a passenger capacity of 19 or more, 

with the following exceptions: 

(a) Float planes; 

(b) The following 19-seat capacity 

aircraft models: the Fairchild Metro, the 

Jetstream 31 and 32, the Beech 1900 (C 

and D models), and the Embraer EMB–

120; 

(c) Any other aircraft model 

determined by the Department of 

Transportation to be unsuitable for 

boarding and deplaning assistance by 

lift, ramp, or other suitable device. 

The Department will make such a 

determination if it concludes that—

(1) No existing boarding and 

deplaning assistance device on the 

market will accommodate the aircraft 

without a significant risk of serious 

damage to the aircraft or injury to 

passengers or employees, or 

(2) Internal barriers are present in the 

aircraft that would preclude passengers 

who use a boarding or aisle chair from 

reaching a non-exit row seat. 

§ 382.99 What agreements must carriers 

have with the airports they serve? 

(a) As a carrier, you must negotiate in 

good faith with the airport operator of 

each U.S. airport described in 

§ 382.95(b) to ensure the provision of 

lifts for boarding and deplaning where 

level-entry loading bridges are not 

available. 

(b) You must have a written, signed 

agreement with the airport operator 

allocating responsibility for meeting the 

boarding and deplaning assistance 

requirements of this subpart between or 

among the parties. For foreign carriers, 

with respect to all covered aircraft, this 

requirement becomes effective May 13, 

2010. 

(c) For foreign carriers, the agreement 

with a U.S. airport must provide that all 

actions necessary to ensure accessible 

boarding and deplaning for passengers 

with a disability are completed as soon 

as practicable, but no later than May 13, 

2010. 

(d) Under the agreement, you may, as 

a carrier, require that passengers 

wishing to receive boarding and 

deplaning assistance requiring the use 

of a lift for a flight check in for the flight 

one hour before the standard check-in 


rwilkins on PROD1PC63 with RULES2
27678 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

time for the flight. If the passenger 

checks in after this time, you must 

nonetheless provide the boarding and 

deplaning assistance by lift if you can 

do so by making a reasonable effort, 

without delaying the flight. 

(e) The agreement must ensure that all 

lifts and other accessibility equipment 

are maintained in proper working 

condition. 

(f) All carriers and airport operators 

involved are jointly and severally 

responsible for the timely and complete 

implementation of the agreement. 

(g) You must make a copy of this 

agreement available, on request, to 

representatives of the Department of 

Transportation. 

§ 382.101 What other boarding and 

deplaning assistance must carriers 

provide? 

When level-entry boarding and 

deplaning assistance is not required to 

be provided under this subpart, you 

must, as a carrier, provide or ensure the 

provision of boarding and deplaning 

assistance by any available means to 

which the passenger consents. However, 

you must never use hand-carrying (i.e., 

directly picking up the passenger’s body 

in the arms of one or more carrier 

personnel to effect a level change the 

passenger needs to enter or leave the 

aircraft), even if the passenger consents, 

unless this is the only way of evacuating 

the individual in the event of an 

emergency. The situations in which 

level-entry boarding is not required but 

in which you must provide this 

boarding and deplaning assistance 

include, but are not limited to, the 

following: 

(a) The boarding or deplaning process 

occurs at a U.S. airport that is not a 

commercial service airport that has 

10,000 or more enplanements per year; 

(b) The boarding or deplaning process 

occurs at a foreign airport; 

(c) You are using an aircraft subject to 

an exception from the lift boarding and 

deplaning assistance requirements 

under § 382.97 (a)–(c) of this subpart; 

(d) The deadlines established in 

§ 382.99(c) have not yet passed; and 

(e) Circumstances beyond your 

control (e.g., unusually severe weather; 

unexpected mechanical problems) 

prevent the use of a lift. 

§ 382.103 May a carrier leave a passenger 

unattended in a wheelchair or other device? 

As a carrier, you must not leave a 

passenger who has requested assistance 

required by this subpart unattended by 

the personnel responsible for enplaning, 

deplaning, or connecting assistance in a 

ground wheelchair, boarding 

wheelchair, or other device, in which 

the passenger is not independently 

mobile, for more than 30 minutes. This 

requirement applies even if another 

person (e.g., family member, personal 

care attendant) is accompanying the 

passenger, unless the passenger 

explicitly waives the obligation. 

§ 382.105 What is the responsibility of 

carriers at foreign airports at which airport 

operators have responsibility for enplaning, 

deplaning, and connecting assistance? 

At a foreign airport at which 

enplaning, deplaning, or connecting 

assistance is provided by the airport 

operator, rather than by carriers, as a 

carrier you may rely on the services 

provided by the airport operator to meet 

the requirements of this subpart. If the 

services provided by the airport 

operator are not sufficient to meet the 

requirements of this subpart, you must 

supplement the airport operator’s 

services to ensure that these 

requirements are met. If you believe you 

are precluded by law from 

supplementing the airport operator’s 

services, you may apply for a conflict of 

laws waiver under § 382.9 of this Part. 

Subpart H—Services on Aircraft 

§ 382.111 What services must carriers 

provide to passengers with a disability on 

board the aircraft? 

As a carrier, you must provide 

services within the aircraft cabin as 

requested by or on behalf of passengers 

with a disability, or when offered by 

carrier personnel and accepted by 

passengers with a disability, as follows: 

(a) Assistance in moving to and from 

seats, as part of the enplaning and 

deplaning processes; 

(b) Assistance in preparation for 

eating, such as opening packages and 

identifying food; 

(c) If there is an on-board wheelchair 

on the aircraft, assistance with the use 

of the on-board wheelchair to enable the 

person to move to and from a lavatory; 

(d) Assistance to a semi-ambulatory 

person in moving to and from the 

lavatory, not involving lifting or 

carrying the person; or 

(e) Assistance in stowing and 

retrieving carry-on items, including 

mobility aids and other assistive devices 

stowed in the cabin (see also 382.91(c)). 

To receive such assistance, the 

passenger must self-identify as being an 

individual with a disability needing the 

assistance. 

(f) Effective communication with 

passengers who have vision 

impairments and/or who are deaf or 

hard-of-hearing, so that these passengers 

have timely access to information the 

carrier provides to other passengers 

(e.g., weather, on-board services, flight 

delays, connecting gates at the next 

airport). 

§ 382.113 What services are carriers not 

required to provide to passengers with a 

disability on board the aircraft? 

As a carrier, you are not required to 

provide extensive special assistance to 

qualified individuals with a disability. 

For purposes of this section, extensive 

special assistance includes the 

following activities: 

(a) Assistance in actual eating; 

(b) Assistance within the restroom or 

assistance at the passenger’s seat with 

elimination functions; and 

(c) Provision of medical services. 

§ 382.115 What requirements apply to onboard safety briefings? 

As a carrier, you must comply with 

the following requirements with respect 

to on-board safety briefings: 

(a) You must conduct an individual 

safety briefing for any passenger where 

required by 14 CFR 121.571(a)(3) and 

(a)(4), 14 CFR 135.117(b), or other FAA 

requirements. 

(b) You may offer an individual 

briefing to any other passenger, but you 

may not require an individual to have 

such a briefing except as provided in 

paragraph (a) of this section. 

(c) You must not require any 

passenger with a disability to 

demonstrate that he or she has listened 

to, read, or understood the information 

presented, except to the extent that 

carrier personnel impose such a 

requirement on all passengers with 

respect to the general safety briefing. 

You must not take any action adverse to 

a qualified individual with a disability 

on the basis that the person has not 

‘‘accepted’’ the briefing. 

(d) When you conduct an individual 

safety briefing for a passenger with a 

disability, you must do so as 

inconspicuously and discreetly as 

possible. 

(e) The accessibility requirements for 

onboard video safety presentations that 

carriers must meet are outlined in 

section 382.69. 

§ 382.117 Must carriers permit passengers 

with a disability to travel with service 

animals? 

(a) As a carrier, you must permit a 

service animal to accompany a 

passenger with a disability. 

(1) You must not deny transportation 

to a service animal on the basis that its 

carriage may offend or annoy carrier 

personnel or persons traveling on the 

aircraft. 

(2) On a flight segment scheduled to 

take 8 hours or more, you may, as a 

condition of permitting a service animal 

to travel in the cabin, require the 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27679 

passenger using the service animal to 

provide documentation that the animal 

will not need to relieve itself on the 

flight or that the animal can relieve 

itself in a way that does not create a 

health or sanitation issue on the flight. 

(b) You must permit the service 

animal to accompany the passenger 

with a disability at any seat in which 

the passenger sits, unless the animal 

obstructs an aisle or other area that must 

remain unobstructed to facilitate an 

emergency evacuation. 

(c) If a service animal cannot be 

accommodated at the seat location of 

the passenger with a disability who is 

using the animal, you must offer the 

passenger the opportunity to move with 

the animal to another seat location, if 

present on the aircraft, where the animal 

can be accommodated. 

(d) As evidence that an animal is a 

service animal, you must accept 

identification cards, other written 

documentation, presence of harnesses, 

tags, or the credible verbal assurances of 

a qualified individual with a disability 

using the animal. 

(e) If a passenger seeks to travel with 

an animal that is used as an emotional 

support or psychiatric service animal, 

you are not required to accept the 

animal for transportation in the cabin 

unless the passenger provides you 

current documentation (i.e., no older 

than one year from the date of the 

passenger’s scheduled initial flight) on 

the letterhead of a licensed mental 

health professional (e.g., psychiatrist, 

psychologist, licensed clinical social 

worker) stating the following: 

(1) The passenger has a mental or 

emotional disability recognized in the 

Diagnostic and Statistical Manual of 

Mental Disorders—Fourth Edition (DSM 

IV); 

(2) The passenger needs the emotional 

support or psychiatric service animal as 

an accommodation for air travel and/or 

for activity at the passenger’s 

destination; 

(3) The individual providing the 

assessment is a licensed mental health 

professional, and the passenger is under 

his or her professional care; and 

(4) The date and type of the mental 

health professional’s license and the 

state or other jurisdiction in which it 

was issued. 

(f) You are never required to 

accommodate certain unusual service 

animals (e.g., snakes, other reptiles, 

ferrets, rodents, and spiders) as service 

animals in the cabin. With respect to 

other unusual or exotic animals that are 

presented as service animals (e.g., 

miniature horses, pigs, monkeys), as a 

U.S. carrier you must determine 

whether any factors preclude their 

traveling in the cabin as service animals 

(e.g., whether the animal is too large or 

heavy to be accommodated in the cabin, 

whether the animal would pose a direct 

threat to the health or safety of others, 

whether it would cause a significant 

disruption of cabin service, whether it 

would be prohibited from entering a 

foreign country that is the flight’s 

destination). If no such factors preclude 

the animal from traveling in the cabin, 

you must permit it to do so. As a foreign 

carrier, you are not required to carry 

service animals other than dogs. 

(g) Whenever you decide not to accept 

an animal as a service animal, you must 

explain the reason for your decision to 

the passenger and document it in 

writing. A copy of the explanation must 

be provided to the passenger either at 

the airport, or within 10 calendar days 

of the incident. 

(h) You must promptly take all steps 

necessary to comply with foreign 

regulations (e.g., animal health 

regulations) needed to permit the legal 

transportation of a passenger’s service 

animal from the U.S. into a foreign 

airport. 

(i) Guidance concerning the carriage 

of service animals generally is found in 

the preamble of this rule. Guidance on 

the steps necessary to legally transport 

service animals on flights from the U.S. 

into the United Kingdom is found in 72 

FR 8268–8277, (February 26, 2007). 

§ 382.119 What information must carriers 

give individuals with vision or hearing 

impairment on aircraft? 

(a) As a carrier, you must ensure that 

passengers with a disability who 

identify themselves as needing visual or 

hearing assistance have prompt access 

to the same information provided to 

other passengers on the aircraft as 

described in paragraph (b) of this 

section, to the extent that it does not 

interfere with crewmembers’ safety 

duties as set forth in FAA and 

applicable foreign regulations. 

(b) The covered information includes 

but is not limited to the following: 

information concerning flight safety, 

procedures for takeoff and landing, 

flight delays, schedule or aircraft 

changes that affect the travel of persons 

with disabilities, diversion to a different 

airport, scheduled departure and arrival 

time, boarding information, weather 

conditions at the flight’s destination, 

beverage and menu information, 

connecting gate assignments, baggage 

claim, individuals being paged by 

airlines, and emergencies (e.g., fire or 

bomb threat). 

Subpart I—Stowage of Wheelchairs, 

Other Mobility Aids, and Other 

Assistive Devices 

§ 382.121 What mobility aids and other 

assistive devices may passengers with a 

disability bring into the aircraft cabin? 

(a) As a carrier, you must permit 

passengers with a disability to bring the 

following kinds of items into the aircraft 

cabin, provided that they can be stowed 

in designated priority storage areas or in 

overhead compartments or under seats, 

consistent with FAA, PHMSA, TSA, or 

applicable foreign government 

requirements concerning security, 

safety, and hazardous materials with 

respect to the stowage of carry-on items. 

(1) Manual wheelchairs, including 

folding or collapsible wheelchairs; 

(2) Other mobility aids, such as canes 

(including those used by persons with 

impaired vision), crutches, and walkers; 

and 

(3) Other assistive devices for stowage 

or use within the cabin (e.g., 

prescription medications and any 

medical devices needed to administer 

them such as syringes or auto-injectors, 

vision-enhancing devices, and POCs, 

ventilators and respirators that use nonspillable batteries, as long as they 

comply with applicable safety, security 

and hazardous materials rules). 

(b) In implementing your carry-on 

baggage policies, you must not count 

assistive devices (including the kinds of 

items listed in paragraph (a) of this 

section) toward a limit on carry-on 

baggage. 

§ 382.123 What are the requirements 

concerning priority cabin stowage for 

wheelchairs and other assistive devices? 

(a) The following rules apply to the 

stowage of passengers’ wheelchairs or 

other assistive devices in the priority 

stowage area provided for in § 382.67 of 

this Part: 

(1) You must ensure that a passenger 

with a disability who uses a wheelchair 

and takes advantage of the opportunity 

to preboard the aircraft can stow his or 

her wheelchair in this area, with 

priority over other items brought onto 

the aircraft by other passengers or crew 

enplaning at the same airport, consistent 

with FAA, PHMSA, TSA, or applicable 

foreign government requirements 

concerning security, safety, and 

hazardous materials with respect to the 

stowage of carry-on items. You must 

move items that you or your personnel 

have placed in the priority stowage area 

(e.g., crew luggage, an on-board 

wheelchair) to make room for the 

passenger’s wheelchair, even if these 

items were stowed in the priority 

stowage area before the passenger 


rwilkins on PROD1PC63 with RULES2
27680 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

seeking to stow a wheelchair boarded 

the aircraft (e.g., the items were placed 

there on a previous leg of the flight). 

(2) You must also ensure that a 

passenger with a disability who takes 

advantage of the opportunity to 

preboard the aircraft can stow other 

assistive devices in this area, with 

priority over other items (except 

wheelchairs) brought onto the aircraft 

by other passengers enplaning at the 

same airport consistent with FAA, 

PHMSA, TSA, or applicable foreign 

government requirements concerning 

security, safety, and hazardous materials 

with respect to the stowage of carry-on 

items. 

(3) You must ensure that a passenger 

with a disability who does not take 

advantage of the opportunity to 

preboard is able to use the area to stow 

his or her wheelchair or other assistive 

device on a first-come, first-served basis 

along with all other passengers seeking 

to stow carry-on items in the area. 

(b) If a wheelchair exceeds the space 

provided for in § 382.67 of this Part 

while fully assembled but will fit if 

wheels or other components can be 

removed without the use of tools, you 

must remove the applicable components 

and stow the wheelchair in the 

designated space. In this case, you must 

stow the removed components in areas 

provided for stowage of carry-on 

luggage. 

(c) You must not use the seatstrapping method of carrying a 

wheelchair in any aircraft you order 

after May 13, 2009 or which are 

delivered after May 13, 2011. Any such 

aircraft must have the designated 

priority stowage space required by 

section 382.67, and you must permit 

passengers to use the space as provided 

in this section 382.123. 

§ 382.125 What procedures do carriers 

follow when wheelchairs, other mobility 

aids, and other assistive devices must be 

stowed in the cargo compartment? 

(a) As a carrier, you must stow 

wheelchairs, other mobility aids, or 

other assistive devices in the baggage 

compartment if an approved stowage 

area is not available in the cabin or the 

items cannot be transported in the cabin 

consistent with FAA, PHMSA, TSA, or 

applicable foreign government 

requirements concerning security, 

safety, and hazardous materials with 

respect to the stowage of carry-on items. 

(b) You must give wheelchairs, other 

mobility aids, and other assistive 

devices priority for stowage in the 

baggage compartment over other cargo 

and baggage. Only items that fit into the 

baggage compartment and can be 

transported consistent with FAA, 

PHMSA, TSA, or applicable foreign 

government requirements concerning 

security, safety, and hazardous materials 

with respect to the stowage of items in 

the baggage compartment need be 

transported. Where this priority results 

in other passengers’ baggage being 

unable to be carried on the flight, you 

must make your best efforts to ensure 

that the other baggage reaches the 

passengers’ destination on the carrier’s 

next flight to the destination. 

(c) You must provide for the checking 

and timely return of passengers’

wheelchairs, other mobility aids, and 

other assistive devices as close as 

possible to the door of the aircraft, so 

that passengers may use their own 

equipment to the extent possible, except 

(1) Where this practice would be 

inconsistent with Federal regulations 

governing transportation security or the 

transportation of hazardous materials; or 

(2) When the passenger requests the 

return of the items at the baggage claim 

area instead of at the door of the aircraft. 

(d) In order to achieve the timely 

return of wheelchairs, you must ensure 

that passengers’ wheelchairs, other 

mobility aids, and other assistive 

devices are among the first items 

retrieved from the baggage 

compartment. 

§ 382.127 What procedures apply to 

stowage of battery-powered mobility aids? 

(a) Whenever baggage compartment 

size and aircraft airworthiness 

considerations do not prohibit doing so, 

you must, as a carrier, accept a 

passenger’s battery-powered wheelchair 

or other similar mobility device, 

including the battery, as checked 

baggage, consistent with the 

requirements of 49 CFR 175.10(a)(15) 

and (16) and the provisions of 

paragraphs (b) through (f) of this 

section. 

(b) You may require that passengers 

with a disability wishing to have 

battery-powered wheelchairs or other 

similar mobility devices transported on 

a flight check in one hour before the 

check-in time for the general public. If 

the passenger checks in after this time, 

you must nonetheless carry the 

wheelchair or other similar mobility 

device if you can do so by making a 

reasonable effort, without delaying the 

flight. 

(c) If the battery on the passenger’s 

wheelchair or other similar mobility 

device has been labeled by the 

manufacturer as non-spillable as 

provided in 49 CFR 173.159(d)(2), or if 

a battery-powered wheelchair with a 

spillable battery can be loaded, stored, 

secured and unloaded in an upright 

position, you must not require the 

battery to be removed and separately 

packaged. Notwithstanding this 

requirement, you must remove and 

package separately any battery that is 

inadequately secured to a wheelchair or, 

for a spillable battery, is contained in a 

wheelchair that cannot be loaded, 

stowed, secured and unloaded in an 

upright position, in accordance with 49 

CFR 175.10(a)(15) and (16). A damaged 

or leaking battery should not be 

transported. 

(d) When it is necessary to detach the 

battery from the wheelchair, you must, 

upon request, provide packaging for the 

battery meeting the requirements of 49 

CFR 175.10(a)(15) and (16) and package 

the battery. You may refuse to use 

packaging materials or devices other 

than those you normally use for this 

purpose. 

(e) You must not disconnect the 

battery on wheelchairs or other mobility 

devices equipped with a non-spillable 

battery completely enclosed within a 

case or compartment integral to the 

design of the device unless an FAA or 

PHMSA safety regulation, or an 

applicable foreign safety regulation 

having mandatory legal effect, requires 

you to do so. 

(f) You must not drain batteries. 

§ 382.129 What other requirements apply 

when passengers’ wheelchairs, other 

mobility aids, and other assistive devices 

must be disassembled for stowage? 

(a) As a carrier, you must permit 

passengers with a disability to provide 

written directions concerning the 

disassembly and reassembly of their 

wheelchairs, other mobility aids, and 

other assistive devices. You must carry 

out these instructions to the greatest 

extent feasible, consistent with FAA, 

PHMSA, TSA, or applicable foreign 

government requirements concerning 

security, safety, and hazardous materials 

with respect to the stowage of carry-on 

items. 

(b) When wheelchairs, other mobility 

aids, or other assistive devices are 

disassembled by the carrier for stowage, 

you must reassemble them and ensure 

their prompt return to the passenger. 

You must return wheelchairs, other 

mobility aids, and other assistive 

devices to the passenger in the 

condition in which you received them. 

§ 382.131 Do baggage liability limits apply 

to mobility aids and other assistive 

devices? 

With respect to transportation to 

which 14 CFR Part 254 applies, the 

limits to liability for loss, damage, or 

delay concerning wheelchairs or other 

assistive devices provided in Part 254 

do not apply. The basis for calculating 

the compensation for a lost, damaged, or 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27681 

destroyed wheelchair or other assistive 

device shall be the original purchase 

price of the device. 

§ 382.133 What are the requirements 

concerning the evaluation and use of 

passenger-supplied electronic devices that 

assist passengers with respiration in the 

cabin during flight? 

(a) Except for on-demand air taxi 

operators, as a U.S. carrier conducting 

passenger service you must permit any 

individual with a disability to use in the 

passenger cabin during air 

transportation, a ventilator, respirator, 

continuous positive airway pressure 

machine, or an FAA-approved portable 

oxygen concentrator (POC) on all flights 

operated on aircraft originally designed 

to have a maximum passenger capacity 

of more than 19 seats, unless: 

(1) the device does not meet 

applicable FAA requirements for 

medical portable electronic devices and 

does not display a manufacturer’s label 

that indicates the device meets those 

FAA requirements, or 

(2) the device cannot be stowed and 

used in the passenger cabin consistent 

with applicable TSA, FAA, and PHMSA 

regulations. 

(b) Except for foreign carriers 

conducting operations of a nature 

equivalent to on-demand air taxi 

operations by a U.S. carrier, as a foreign 

carrier conducting passenger service 

you must permit any individual with a 

disability to use a ventilator, respirator, 

continuous positive airway pressure 

machine, or portable oxygen 

concentrator (POC) of a kind equivalent 

to an FAA-approved POC for U.S. 

carriers in the passenger cabin during 

air transportation to, from or within the 

United States, on all aircraft originally 

designed to have a maximum passenger 

capacity of more than 19 seats unless: 

(1) The device does not meet 

requirements for medical portable 

electronic devices set by the foreign 

carrier’s government if such 

requirements exist and/or it does not 

display a manufacturer’s label that 

indicates the device meets those 

requirements, or 

(2) The device does not meet 

requirements for medical portable 

electronic devices set by the FAA for 

U.S. carriers and does not display a 

manufacturer’s label that indicates the 

device meets those FAA requirements in 

circumstances where requirements for 

medical portable electronic devices 

have not been set by the foreign carrier’s 

government and the foreign carrier 

elects to apply FAA requirements for 

medical portable electronic devices, or 

(3) The device cannot be stowed and 

used in the passenger cabin consistent 

with applicable TSA, FAA and PHMSA 

regulations, and the safety or security 

regulations of the foreign carrier’s 

government. 

(c) As a U.S. carrier, you must provide 

information during the reservation 

process as indicated in paragraphs (c)(1) 

through (c)(6) of this section upon 

inquiry from an individual concerning 

the use in the cabin during air 

transportation of a ventilator, respirator, 

continuous positive airway machine, or 

an FAA-approved POC. The following 

information must be provided: 

(1) The device must be labeled by the 

manufacturer to reflect that it has been 

tested to meet applicable FAA 

requirements for medical portable 

electronic devices; 

(2) The maximum weight and 

dimensions (length, width, height) of 

the device to be used by an individual 

that can be accommodated in the 

aircraft cabin consistent with FAA 

safety requirements; 

(3) The requirement to bring an 

adequate number of batteries as outlined 

in paragraph (f)(2) of this section and to 

ensure that extra batteries carried 

onboard to power the device are 

packaged and protected from short 

circuit and physical damage in 

accordance with SFAR 106, Section 3 

(b)(6); 

(4) Any requirement, if applicable, 

that an individual contact the carrier 

operating the flight 48 hours before 

scheduled departure to learn the 

expected maximum duration of his/her 

flight in order to determine the required 

number of batteries for his/her 

particular ventilator, respirator, 

continuous positive airway pressure 

machine, or POC; 

(5) Any requirement, if applicable, of 

the carrier operating the flight for an 

individual planning to use such a 

device to check-in up to one hour before 

that carrier’s general check-in deadline; 

and 

(6) For POCs, the requirement of 

paragraph 382.23(b)(1)(ii) of this Part to 

present to the operating carrier at the 

airport a physician’s statement (medical 

certificate) prepared in accordance with 

applicable federal aviation regulations. 

(d) As a foreign carrier operating 

flights to, from or within the United 

States, you must provide the 

information during the reservation 

process as indicated in paragraphs (d)(1) 

through (d)(7) of this section upon 

inquiry from an individual concerning 

the use in the cabin during air 

transportation on such a flight of a 

ventilator, respirator, continuous 

positive airway machine, or POC of a 

kind equivalent to an FAA-approved 

POC for U.S. carriers: 

(1) The device must be labeled by the 

manufacturer to reflect that it has been 

tested to meet requirements for medical 

portable electronic devices set by the 

foreign carrier’s government if such 

requirements exist; 

(2) The device must be labeled by the 

manufacturer to reflect that it has been 

tested to meet requirements for medical 

portable electronic devices set by the 

FAA for U.S. carriers if requirements for 

medical portable electronic devices 

have not been set by the foreign carrier’s 

government and the foreign carrier 

elects to apply FAA requirements for 

medical portable electronic devices; 

(3) The maximum weight and 

dimensions (length, width, height) of 

the device to be used by an individual 

that can be accommodated in the 

aircraft cabin consistent with the safety 

regulations of the foreign carrier’s 

government; 

(4) The requirement to bring an 

adequate number of batteries as outlined 

in paragraph (f)(2) of this section and to 

ensure that extra batteries carried 

onboard to power the device are 

packaged in accordance with applicable 

government safety regulations; 

(5) Any requirement, if applicable, 

that an individual contact the carrier 

operating the flight 48 hours before 

scheduled departure to learn the 

expected maximum duration of his/her 

flight in order to determine the required 

number of batteries for his/her 

particular ventilator, respirator, 

continuous positive airway pressure 

machine, or POC; 

(6) Any requirement, if applicable, of 

the carrier operating the flight for an 

individual planning to use such a 

device to check-in up to one hour before 

that carrier’s general check-in deadline; 

and 

(7) Any requirement, if applicable, 

that an individual who wishes to use a 

POC onboard an aircraft present to the 

operating carrier at the airport a 

physician’s statement (medical 

certificate). 

(e) In the case of a codeshare itinerary, 

the carrier whose code is used on the 

flight must either inform the individual 

inquiring about using a ventilator, 

respirator, CPAP machine or POC 

onboard an aircraft to contact the carrier 

operating the flight for information 

about its requirements for use of such 

devices in the cabin, or provide such 

information on behalf of the codeshare 

carrier operating the flight. 

(f)(1) As a U.S. or foreign carrier 

subject to paragraph (a) or (b) of this 

section, you must inform any individual 

who has advised you that he or she 

plans to operate his/her device in the 

aircraft cabin, within 48 hours of his/her 


rwilkins on PROD1PC63 with RULES2
27682 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

making a reservation or 24 hours before 

the scheduled departure date of his/her 

flight, whichever date is earlier, of the 

expected maximum flight duration of 

each segment of his/her flight itinerary. 

(2) You may require an individual to 

bring an adequate number of fully 

charged batteries onboard, based on the 

battery manufacturer’s estimate of the 

hours of battery life while the device is 

in use and the information provided in 

the physician’s statement, to power the 

device for not less than 150% of the 

expected maximum flight duration. 

(3) If an individual does not comply 

with the conditions for acceptance of a 

medical portable electronic device as 

outlined in this section, you may deny 

boarding to the individual in 

accordance with 14 CFR 382.19(c) and 

in that event you must provide a written 

explanation to the individual in 

accordance with 14 CFR 382.19(d). 

Subpart J—Training and 

Administrative Provisions 

§ 382.141 What training are carriers 

required to provide for their personnel? 

(a) As a carrier that operates aircraft 

with 19 or more passenger seats, you 

must provide training, meeting the 

requirements of this paragraph, for all 

personnel who deal with the traveling 

public, as appropriate to the duties of 

each employee. 

(1) You must ensure training to 

proficiency concerning: 

(i) The requirements of this Part and 

other applicable Federal regulations 

affecting the provision of air travel to 

passengers with a disability; 

(ii) Your procedures, consistent with 

this Part, concerning the provision of air 

travel to passengers with a disability, 

including the proper and safe operation 

of any equipment used to accommodate 

passengers with a disability; and 

(iii) For those personnel involved in 

providing boarding and deplaning 

assistance, the use of the boarding and 

deplaning assistance equipment used by 

the carrier and appropriate boarding and 

deplaning assistance procedures that 

safeguard the safety and dignity of 

passengers. 

(2) You must also train such 

employees with respect to awareness 

and appropriate responses to passengers 

with a disability, including persons 

with physical, sensory, mental, and 

emotional disabilities, including how to 

distinguish among the differing abilities 

of individuals with a disability. 

(3) You must also train these 

employees to recognize requests for 

communication accommodation from 

individuals whose hearing or vision is 

impaired and to use the most common 

methods for communicating with these 

individuals that are readily available, 

such as writing notes or taking care to 

enunciate clearly, for example. Training 

in sign language is not required. You 

must also train these employees to 

recognize requests for communication 

accommodation from deaf-blind 

passengers and to use established means 

of communicating with these passengers 

when they are available, such as passing 

out Braille cards if you have them, 

reading an information sheet that a 

passenger provides, or communicating 

with a passenger through an interpreter, 

for example. 

(4) You must consult with 

organizations representing persons with 

disabilities in your home country when 

developing your training program and 

your policies and procedures. If such 

organizations are not available in your 

home country, you must consult with 

individuals with disabilities and/or 

international organizations representing 

individuals with disabilities. 

(5) You must ensure that all personnel 

who are required to receive training 

receive refresher training on the matters 

covered by this section, as appropriate 

to the duties of each employee, as 

needed to maintain proficiency. You 

must develop a program that will result 

in each such employee receiving 

refresher training at least once every 

three years. The program must describe 

how employee proficiency will be 

maintained. 

(6) You must provide, or ensure that 

your contractors provide, training to the 

contractors’ employees concerning 

travel by passengers with a disability. 

This training is required only for those 

contractor employees who deal directly 

with the traveling public, and it must be 

tailored to the employees’ functions. 

Training for contractor employees must 

meet the requirements of paragraphs 

(a)(1) through (a)(5) of this section. 

(7) The employees you designate as 

CROs, for purposes of § 382.151 of this 

Part, must receive training concerning 

the requirements of this Part and the 

duties of a CRO. 

(8) Personnel subject to training 

required under this Part, who are 

already employed on May 13, 2009, 

must be trained one time in the changes 

resulting from the reissuance of this 

Part. 

(b) If you are a carrier that operates 

only aircraft with fewer than 19 

passenger seats, you must provide 

training for flight crewmembers and 

appropriate personnel to ensure that 

they are familiar with the matters listed 

in paragraphs (a)(1) and (a)(2) of this 

section and that they comply with the 

requirements of this Part. 

§ 382.143 When must carriers complete 

training for their personnel? 

(a) As a U.S. carrier, you must meet 

the training requirements of § 382.141 

by the following times. 

(1) Employees designated as CROs 

shall receive training concerning the 

requirements of this Part and the duties 

of a CRO before assuming their duties 

under § 382.151 (see § 382.141(a)(7)). 

You must ensure that all employees 

performing the CRO function receive 

annual refresher training concerning 

their duties and the provisions of this 

regulation. The one-time training for 

CROs about the changes to Part 382 

must take place by May 13, 2009. For 

employees who have already received 

CRO training, this training may be 

limited to changes from the previous 

version of Part 382. 

(2) The one-time training for existing 

employees about changes to Part 382 

(see § 382.141(a)(8)) must take place as 

part of the next scheduled recurrent 

training after May 13, 2009 for each 

such employee or within one year after 

May 13, 2009, whichever comes first. 

(3) For crewmembers subject to 

training requirements under 14 CFR Part 

121 or 135 whose employment in any 

given position commences after May 13, 

2009, before they assume their duties; 

and 

(4) For other personnel whose 

employment in any given position 

commences after May 13, 2009, within 

60 days after the date on which they 

assume their duties. 

(b) As a foreign carrier that operates 

aircraft with 19 or more passenger seats, 

you must provide training meeting the 

requirements of paragraph (a) of this 

section for all personnel who deal with 

the traveling public in connection with 

flights that begin or end at a U.S. 

airport, as appropriate to the duties of 

each employee. You must ensure that 

personnel required to receive training 

complete the training by the following 

times: 

(1) Employees designated as CROs 

shall receive training in accordance 

with paragraph (a)(1) of this section, by 

May 13, 2009. 

(2) For crewmembers and other 

personnel who are employed on May 

13, 2009, within one year after that date; 

(3) For crewmembers whose 

employment commences after May 13, 

2010, before they assume their duties; 

(4) For other personnel whose 

employment in any given position 

commences after May 13, 2010, or a date 

within 60 days after the date on which 

they assume their duties; and 

(5) For crewmembers and other 

personnel whose employment in any 

given position commences after May 13, 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27683 

2009, but before May 13, 2010, by May 

13, 2010 or a date 60 days after the date 

of their employment, whichever is later. 

§ 382.145 What records concerning 

training must carriers retain? 

(a) As a carrier that operates aircraft 

with 19 or more passenger seats, you 

must incorporate procedures 

implementing the requirements of this 

Part in the manuals or other guidance or 

instructional materials provided for the 

carrier and contract personnel who 

provide services to passengers, 

including, but not limited to, pilots, 

flight attendants, reservation and ticket 

counter personnel, gate agents, ramp 

and baggage handling personnel, and 

passenger service office personnel. You 

must retain these records for review by 

the Department on the Department’s 

request. If, upon such review, the 

Department determines that any portion 

of these materials must be changed in 

order to comply with this Part, DOT will 

direct you to make appropriate changes. 

You must incorporate and implement 

these changes. 

(b) You must retain for three years 

individual employee training records 

demonstrating that all persons required 

to receive initial and refresher training 

have done so. 

Subpart K—Complaints and 

Enforcement Procedures 

§ 382.151 What are the requirements for 

providing Complaints Resolution Officials? 

(a) As a carrier providing scheduled 

service, or a carrier providing 

nonscheduled service using aircraft 

with 19 or more passenger seats, you 

must designate one or more CROs. 

(b) As a U.S. carrier, you must make 

a CRO available at each airport you 

serve during all times you are operating 

at that airport. As a foreign carrier, you 

must make a CRO available at each 

airport serving flights you operate that 

begin or end at a U.S. airport. You may 

make the CRO available in person at the 

airport or via telephone, at no cost to the 

passenger. If a telephone link to the 

CRO is used, TTY service or a similarly 

effective technology must be available 

so that persons with hearing 

impairments may readily communicate 

with the CRO. You must make CRO 

service available in the language(s) in 

which you make your services available 

to the general public. 

(c) You must make passengers with a 

disability aware of the availability of a 

CRO and how to contact the CRO in the 

following circumstances: 

(1) In any situation in which any 

person complains or raises a concern 

with your personnel about 

discrimination, accommodations, or 

services with respect to passengers with 

a disability, and your personnel do not 

immediately resolve the issue to the 

customer’s satisfaction or provide a 

requested accommodation, your 

personnel must immediately inform the 

passenger of the right to contact a CRO 

and then contact a CRO on the 

passenger’s behalf or provide the 

passenger a means (e.g., a phone, a 

phone card plus the location and/or 

phone number of the CRO available at 

the airport). Your personnel must 

provide this information to the 

passenger in a format he or she can use. 

(2) Your reservation agents, 

contractors, and Web sites must provide 

information equivalent to that required 

by paragraph (c)(1) of this section to 

passengers with a disability using those 

services who complain or raise a 

concern about a disability-related issue. 

(d) Each CRO must be thoroughly 

familiar with the requirements of this 

Part and the carrier’s procedures with 

respect to passengers with a disability. 

The CRO is intended to be the carrier’s 

‘‘expert’’ in compliance with the 

requirements of this Part. 

(e) You must ensure that each of your 

CROs has the authority to make 

dispositive resolution of complaints on 

behalf of the carrier. This means that the 

CRO must have the power to overrule 

the decision of any other personnel, 

except that the CRO is not required to 

be given authority to countermand a 

decision of the pilot-in-command of an 

aircraft based on safety. 

§ 382.153 What actions do CROs take on 

complaints? 

When a complaint is made directly to 

a CRO for a carrier providing scheduled 

service, or a carrier providing 

nonscheduled service using aircraft 

with 19 or more passenger seats (e.g., 

orally, by phone, TTY), the CRO must 

promptly take dispositive action as 

follows: 

(a) If the complaint is made to a CRO 

before the action or proposed action of 

carrier personnel has resulted in a 

violation of a provision of this Part, the 

CRO must take, or direct other carrier 

personnel to take, whatever action is 

necessary to ensure compliance with 

this Part. 

(b) If an alleged violation of a 

provision of this Part has already 

occurred, and the CRO agrees that a 

violation has occurred, the CRO must 

provide to the complainant a written 

statement setting forth a summary of the 

facts and what steps, if any, the carrier 

proposes to take in response to the 

violation. 

(c) If the CRO determines that the 

carrier’s action does not violate a 

provision of this Part, the CRO must 

provide to the complainant a written 

statement including a summary of the 

facts and the reasons, under this Part, 

for the determination. 

(d) The statements required to be 

provided under this section must inform 

the complainant of his or her right to 

pursue DOT enforcement action under 

this Part. The CRO must provide the 

statement in person to the complainant 

at the airport if possible; otherwise, it 

must be forwarded to the complainant 

within 30 calendar days of the 

complaint. 

§ 382.155 How must carriers respond to 

written complaints? 

(a) As a carrier providing scheduled 

service, or a carrier providing 

nonscheduled service using aircraft 

with 19 or more passenger seats, you 

must respond to written complaints 

received by any means (e.g., letter, fax, 

e-mail, electronic instant message) 

concerning matters covered by this Part. 

(b) As a passenger making a written 

complaint, you must state whether you 

had contacted a CRO in the matter, 

provide the name of the CRO and the 

date of the contact, if available, and 

enclose any written response you 

received from the CRO. 

(c) As a carrier, you are not required 

to respond to a complaint postmarked or 

transmitted more than 45 days after the 

date of the incident, except for 

complaints referred to you by the 

Department of Transportation. 

(d) As a carrier, you must make a 

dispositive written response to a written 

disability complaint within 30 days of 

its receipt. The response must 

specifically admit or deny that a 

violation of this Part has occurred. 

(1) If you admit that a violation has 

occurred, you must provide to the 

complainant a written statement setting 

forth a summary of the facts and the 

steps, if any, you will take in response 

to the violation. 

(2) If you deny that a violation has 

occurred, your response must include a 

summary of the facts and your reasons, 

under this Part, for the determination. 

(3) Your response must also inform 

the complainant of his or her right to 

pursue DOT enforcement action under 

this Part. 

§ 382.157 What are carriers’ obligations for 

recordkeeping and reporting on disabilityrelated complaints? 

(a) For the purposes of this section, a 

disability-related complaint means a 

specific written expression of 

dissatisfaction received from, or 


rwilkins on PROD1PC63 with RULES2
27684 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

submitted on behalf, of an individual 

with a disability concerning a difficulty 

associated with the person’s disability, 

which the person experienced when 

using or attempting to use an air 

carrier’s or foreign carrier’s services. 

(b) If you are a carrier covered by this 

Part, conducting passenger operations 

with at least one aircraft having a 

designed seating capacity of more than 

60 passengers, this section applies to 

you. As a foreign carrier, you are 

covered by this section only with 

respect to disability-related complaints 

associated with any flight segment 

originating or terminating in the United 

States. 

(c) You must categorize disabilityrelated complaints that you receive 

according to the type of disability and 

nature of complaint. Data concerning a 

passenger’s disability must be recorded 

separately in the following areas: vision 

impaired, hearing impaired, vision and 

hearing impaired, mentally impaired, 

communicable disease, allergies (e.g., 

food allergies, chemical sensitivity), 

paraplegic, quadriplegic, other 

wheelchair, oxygen, stretcher, other 

assistive device (cane, respirator, etc.), 

and other disability. Data concerning 

the alleged discrimination or service 

problem related to the disability must be 

separately recorded in the following 

areas: refusal to board, refusal to board 

without an attendant, security issues 

concerning disability, aircraft not 

accessible, airport not accessible, 

advance notice dispute, seating 

accommodation, failure to provide 

adequate or timely assistance, damage to 

assistive device, storage and delay of 

assistive device, service animal 

problem, unsatisfactory information, 

and other. 

(d) You must submit an annual report 

summarizing the disability-related 

complaints that you received during the 

prior calendar year using the form 

specified at the following internet 

address: http://382reporting.ost.dot.gov. 

You must submit this report by the last 

Monday in January of each year for 

complaints received during the prior 

calendar year. You must make 

submissions through the World Wide 

Web except for situations where you can 

demonstrate that you would suffer 

undue hardship if not permitted to 

submit the data via paper copies, disks, 

or e-mail, and DOT has approved an 

exception. All fields in the form must be 

completed; carriers are to enter ‘‘0’’

where there were no complaints in a 

given category. Each annual report must 

contain the following certification 

signed by your authorized 

representative: ‘‘I, the undersigned, do 

certify that this report has been 

prepared under my direction in 

accordance with the regulations in 14 

CFR Part 382. I affirm that, to the best 

of my knowledge and belief, this is a 

true, correct, and complete report.’’

Electronic signatures will be accepted. 

(e) You must retain correspondence 

and record of action taken on all 

disability-related complaints for three 

years after receipt of the complaint or 

creation of the record of action taken. 

You must make these records available 

to Department of Transportation 

officials at their request. 

(f)(1) As either carrier in a codeshare 

relationship, you must comply with 

paragraphs (c) through (e) of this section 

for—

(i) Disability-related complaints you 

receive from or on behalf of passengers 

with respect to difficulties encountered 

in connection with service you provide; 

(ii) Disability-related complaints you 

receive from or on behalf of passengers 

when you are unable to reach agreement 

with your codeshare partner as to 

whether the complaint involves service 

you provide or service your codeshare 

partner provides; and 

(iii) Disability-related complaints 

forwarded by another carrier or 

governmental agency with respect to 

difficulties encountered in connection 

with service you provide. 

(2) As either carrier in a codeshare 

relationship, you must forward to your 

codeshare partner disability-related 

complaints you receive from or on 

behalf of passengers with respect to 

difficulties encountered in connection 

with service provided by your codesharing partner. 

(g) Each carrier, except for carriers in 

codeshare situations, shall comply with 

paragraphs (c) through (e) of this section 

for disability-related complaints it 

receives from or on behalf of passengers 

as well as disability-related complaints 

forwarded by another carrier or 

governmental agency with respect to 

difficulties encountered in connection 

with service it provides. 

(h) Carriers that do not submit their 

data via the Web shall use the disabilityrelated complaint data form specified in 

Appendix A to this Part when filing 

their annual report summarizing the 

disability-related complaints they 

received. The report shall be mailed, by 

the date specified in paragraph (d) of 

this section, to the following address: 

U.S. Department of Transportation, 

Aviation Consumer Protection Division 

(C–75), 1200 New Jersey Avenue, SE., 

West Building, Room W96–432, 

Washington, DC 20590. 

§ 382.159 How are complaints filed with 

DOT? 

(a) Any person believing that a carrier 

has violated any provision of this Part 

may seek assistance or file an informal 

complaint at the Department of 

Transportation no later than 6 months 

after the date of the incident by either: 

(1) going to the web site of the 

Department’s Aviation Consumer 

Protection Division at http:// 

airconsumer.ost.dot.gov and selecting 

‘‘Air Travel Problems and Complaints,’’

or 

(2) writing to Department of 

Transportation, Aviation Consumer 

Protection Division (C–75), 1200 New 

Jersey Avenue, SE., Washington, DC 

20590. 

(b) Any person believing that a carrier 

has violated any provision of this Part 

may also file a formal complaint under 

the applicable procedures of 14 CFR 

Part 302. 

(c) You must file a formal complaint 

under this Part within six months of the 

incident on which the complaint is 

based in order to ensure that the 

Department of Transportation will 

investigate the matter. 

BILLING CODE 4910–9X–P 


rwilkins on PROD1PC63 with RULES2
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27685 


rwilkins on PROD1PC63 with RULES2ER13MY08.000</GPH>
27686 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 

BILLING CODE 4910–9X–C 


rwilkins on PROD1PC63 with RULES2ER13MY08.001</GPH>
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations 27687 

Appendix B to Part 382—CrossReference Table 

The Department is providing the following 

table to assist users familiar with the current 

Part 382 in finding material in the new, 

renumbered Part 382. 

SECTION NUMBERS: OLD AND NEW RULES

Old section 

(382.x) 

New section 

(382.x) Subject 

General provisions: 

1 ............................................... 1 ..................................................... Purpose. 

3 ............................................... 7 ..................................................... Applicability. 

5 ............................................... 3 ..................................................... Definitions. 

7 ............................................... 11, 13 ............................................. Non-discrimination generally. 

9 ............................................... 15 ................................................... Contractors. 

Aircraft accessibility: 

21(a)(1) .................................... 61 ................................................... Movable armrests. 

21(a)(2) .................................... 67 ................................................... Stowage space in cabin for passenger wheelchair. 

21(a)(3) .................................... 63 ................................................... Accessible lavatories. 

21(a)(4) .................................... 65 ................................................... Carrier-supplied on-board wheelchair. 

21(e) and (f) ............................. 71 ................................................... Aircraft accessibility: miscellaneous. 

Airport accessibility: 

23 ............................................. 51 ................................................... General. 

(New) ........................................ 53 ................................................... Vision/hearing impairments. 

Services and information: 

31 ............................................. 19 ................................................... Refusal of transportation. 

31(c) ......................................... 17 ................................................... Number limits. 

33 ............................................. 25, 27 ............................................. Advance notice requirements. 

35 ............................................. 29 ................................................... Safety assistants (formerly ‘‘attendants’’). 

37 ............................................. 87(a) .............................................. Seat assignments. 

38 ............................................. 81 through 87 ................................ Seating accommodations. 

39(a) ......................................... 91 through 105 .............................. Enplaning, deplaning and connecting assistance. 

39(b) ......................................... 111 through 119 ............................ Assistance in cabin. 

40 and 40a ............................... 99 ................................................... Mechanical lifts. 

41 ............................................. 121 through 133 ............................ Stowage of assistive devices. 

43(a) ......................................... 129(b) ............................................ Timely return of assistive devices. 

43(b) ......................................... 131 ................................................. Liability limits. 

43(c) ......................................... 35 ................................................... Liability waivers. 

45(a) ......................................... 41 ................................................... Access to information (general). 

45(b) ......................................... 115 ................................................. Individual safety briefings. 

45(c) ......................................... 119 ................................................. Access to information in airport and aircraft. 

45(d) ......................................... 45 ................................................... Availability of copy of rule. 

47(a) ......................................... 43 ................................................... TTY’s and reservations systems. 

47(b) ......................................... 69 ................................................... Accessibility of videos on aircraft. 

49 ............................................. 55 ................................................... Security screening. 

51 ............................................. 21 ................................................... Communicable diseases. 

53 ............................................. 23 ................................................... Medical certificates. 

55(a) ......................................... 117 ................................................. Service animals. 

55(b) ......................................... 33 ................................................... Sitting on blankets. 

55(c) ......................................... 33 ................................................... Restricting movement. 

55 ............................................. 31 ................................................... Charges for accommodations.

Administrative provisions: 

61 ............................................. 141, 143 ......................................... Training. 

63(c) and (d) ............................ 145 ................................................. Manuals; directed changes. 

65(a) ......................................... 151, 153 ......................................... Complaints Resolution Officials.

65(b) ......................................... 155, 157 ......................................... Written complaints to carriers. 

65(c) and (d) ............................ 159 ................................................. Complaints to DOT. 

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

BILLING CODE 4910–9X–P 


rwilkins on PROD1PC63 with RULES2