14 CFR Part 382 Nondiscrimination on the Basis of Disability in Air Travel (Air Carrier Access Act): Preamble and Section-by-Section Analysis (with amendments issued through July 2010)

Other Information for Individuals with Hearing or Vision Impairments

We proposed in the DHH NPRM to require carriers to provide the same information to deaf, hard of hearing, and deaf-blind individuals in airport terminals that they provide to other members of the public. We proposed that they must provide this information promptly when such individuals identify themselves as needing visual or auditory assistance, or both. The proposed rule set forth the following non-exhaustive list of covered topics: flight safety, ticketing, flight check-in, flight delays or cancellations, schedule changes, boarding, the checking and claiming of baggage, the solicitation of volunteers on oversold flights (e.g., offers of compensation for surrendering a reservation), individuals being paged by airlines, aircraft changes that affect the travel of persons with disabilities, and emergencies (e.g., fire, bomb threat). We proposed that the rule apply to U.S. carriers at each gate, baggage claim area, ticketing area, or other terminal facility that they own, lease, or control at any U.S. or foreign airport. The proposed rule would apply to foreign carriers at gates, baggage claim areas, ticketing areas, or other terminal facilities that they own, lease, or control at any U.S. airport and at terminal facilities of foreign airports that serve flights beginning or ending in the U.S. (We inadvertently neglected to include the phrase “that they own, lease, or control” in the NPRM regulatory text on foreign carriers at foreign airports.)

We explained in the DHH NPRM that we were proposing a performance standard, namely “prompt,” rather than requiring carriers to use a particular medium (e.g., LCD screens, wireless pagers, erasable boards, or handwritten notes) to allow carriers to design their own compliance plans in a manner that best suits their needs and serves their passengers. We solicited comment on whether the term “prompt,” which we believe to be a higher standard than “timely,” is sufficiently specific. We also stated our concern that methods of communicating with deaf-blind individuals may not be readily available. We did not propose to require carriers to use any of the following methods: using a finger to trace block letters on the deaf-blind individual’s palm or forearm, using an index card with raised letters, with the communicator placing the deaf-blind individual’s index finger on each word’s letters in sequence, or tactile signing or finger spelling where the deaf-blind individual places his or her hands on top of the signer’s hands to feel the shape of the signs. We solicited comment on other less specialized methods of communicating with deaf-blind individuals and on whether, if none exists, we should limit the promptness requirement to individuals with vision or hearing impairments but not to apply it to an individual who has both of these disabilities.

The carriers and carrier groups that filed comments all supported the requirement that passengers needing special transmission of this information identify themselves to carrier personnel. Most asked the Department to use “timely” as a standard rather than “prompt.” Some complain that any such standard is too subjective to provide effective guidance. One carrier suggested that the emphasis should be not on how swiftly carriers can transmit the information to the disabled passenger but on when the passenger needs to have it. Carriers shared considerable concern over the costs of compliance, both in terms of having personnel available at all of the areas listed in the proposal and in terms of potential technical solutions.

One carrier opposed making the requirements applicable at foreign airports, arguing that foreign carriers are not likely to have the leverage they would need to comply. Several contended that the cost estimates in the initial Regulatory Evaluation were unrealistically low. Some proposed limiting the required “promptness” to individuals with either hearing or visual impairment, not both, who are traveling without a companion; one stated that it communicates the information at issue here to deaf-blind passengers through their traveling companions. Some objected to the list of types of information that must be provided promptly. (The list represents an expansion of the list in the existing rule, 14 CFR §382.45(c), which up to this time has applied only to U.S. carriers, and which is explicitly not exhaustive.) One U.S. carrier association was particularly concerned about the financial burdens that it assumes the rule would impose on its regional-airline members. It asserted that adoption of much of the technology discussed in the proposal is impossible at small airports and states that in any case its members report very few deaf-blind passengers flying from these airports. The costs of compliance, it contended, far exceed any putative benefits and could result in the reduction or even elimination of service.

The individuals and disability organizations that filed comments had a very different perspective. Most of these commenters objected to the requirement of self-identification. Many took the position that carriers should have reliable methods in place for conveying information to all passengers at all times. Several supported requiring simultaneous visual transmission of any information disseminated over a public address system. Some related that in the past self-identification has failed to result in this type of information’s being transmitted at all, much less “promptly” or even in a “timely” manner.

Based on the comments, we have made several changes to the proposal in the final rule. First, we are adding the language that we inadvertently omitted in the proposed rule to limit the requirements for foreign carriers at foreign airports to areas that these carriers own, lease, or control. Second, we have determined that it is not appropriate at this time to require carriers to provide the information covered in §382.53 to deaf-blind passengers. The information at issue is constantly changing, and we know of no methods of communicating with deaf-blind individuals that allow for prompt transmission of the information and do not require highly specialized training. We do encourage members of the public to petition the Department for a rulemaking to amend this rule in the future if and when technology becomes available that would permit the prompt and efficient transmission of the covered information to deaf-blind individuals. We also encourage carriers to acquire and use such technology on their own initiative.

Third, we have determined that the costs of requiring prompt transmission of the covered information at all of the terminal areas listed in the DHH NPRM exceed the benefits. We are therefore limiting the requirement to gates, ticketing areas, and customer service desks. For purposes of the rule, a customer service desk is a location in the terminal that a carrier dedicates to addressing customer problems that are not addressed at the gate or the ticket counter, most commonly the rerouting of passengers affected by a delayed or canceled flight. Fourth, we are adding a provision for information about baggage. This information must be transmitted to passengers who have identified themselves as having hearing or vision impairment no later than the time that it is transmitted to the other passengers. For example, assuming that information on collection of baggage is given to arriving passengers at the baggage claim area, carriers can comply with this rule by giving the information to self-identifying passengers before the others—e.g., onboard the flight or at the gate—or at the baggage claim area at the same time as the others. Fifth, as in the case of §382.51, in cases where a U.S. airport has actual control over the gates, ticketing areas, and customer service desks, we are making the airport and the carrier jointly responsible.

We are retaining the self-identification requirement, because we believe that requiring simultaneous visual transmission of the information along with each and every public-address announcement would saddle carriers with undue costs. In this regard, passengers with impaired hearing or vision must identify themselves to carrier personnel at the gate area or the customer service desk even if they have already done so at the ticketing area.

We are also retaining the “prompt” standard. It requires carriers to provide the information to self-identifying passengers with hearing or vision impairment as close as possible to the time that the information is transmitted to the general public. For example, when gate agents announce a flight cancellation or gate change, if they provide the information to self-identifying passengers with impaired hearing or vision either immediately before or immediately after they make a general announcement, the carrier will be complying with §382.53. If a gate change is announced fifteen minutes before a scheduled departure but the gate agents do not provide effective notice to a passenger with impaired hearing until it is too late for that individual to reach the gate in time to board, or if they delay providing the information long enough that the individual reasonably believes that he or she will probably miss the flight, the carrier is violating the rule. The rule requires that carrier personnel notify a self-identifying passenger with impaired hearing that he or she has been paged immediately after making the announcement over a public address system unless the same information is displayed visually on a screen. If a flight is oversold and the carrier is soliciting volunteers to relinquish their seats in exchange for compensation, to comply with this rule carrier personnel must notify self-identifying passengers with impaired hearing or vision in time for them to take advantage of the offer—i.e., well before the quota has been filled by other volunteers. The rule does not require carriers to provide a sign language interpreter in the gate area or elsewhere to ensure that a deaf passenger receives all pertinent information simultaneously with other passengers.

As for passengers with impaired vision, for example, the rule requires carriers to notify a visually impaired passenger orally where his or her baggage can be claimed if the information is otherwise only posted on visual displays, and the notification must take place no later than the posting. At the time when a visually impaired passenger identifies himself or herself to an agent at the gate, the rule requires the agent to notify him or her of any change that has occurred that affects his or her itinerary even if the change has already been announced and is now posted on a screen. If a gate change is posted on the screen but not announced orally, as soon as possible after the posting a gate agent must notify any passenger who has identified himself or herself as having impaired vision.

We are retaining the entire list of types of information that carriers must provide even though it contains more items than the list in the current rule. In our view, since the list in the current rule is expressly non-exhaustive, the new items on the list in this section were never excluded obligations. Having them explicitly stated informs the carriers more effectively of their responsibilities.

In the DHH NPRM, we proposed a somewhat similar requirement for providing information aboard aircraft to the proposed requirements pertaining to information in airport terminals. U.S. and foreign carriers would be required, upon request, to provide deaf, hard of hearing, and deaf-blind individuals with the same information provided to other passengers in a prompt manner. We again proposed a non-exhaustive list of types of information to be covered by the rule: flight safety, procedures for take-off or landing, flight delays, schedule or aircraft changes that affect the travel of persons with disabilities, diversion to a different airport, scheduled departure and arrival times, boarding information, weather conditions, beverage and menu information, connecting gate assignments, baggage claim, individuals being paged by airlines, and emergencies (e.g., fire or bomb threat). The proposal differs from the current rule in that it changes the timing requirement from “timely” to “prompt” and expands the current rule’s list, also non-exhaustive, of covered types of information. We solicited comment on whether the change from “timely” to “prompt” is appropriate for providing information aboard the aircraft and on the proposed new list.

The carriers and carrier groups that filed comments generally objected to the proposal as too broad and too prescriptive, particularly the expanded list of types of information for which accommodation would be required. The Air Transport Association of America (“ATA”) argued that the expanded list would create a tension between crew members’ obligations to provide information to disabled passengers and their duties related to safety and concluded that if busy crew members are further burdened with having to transcribe every in-flight announcement for passengers with impaired hearing, only safety announcements mandated by the FAA will be made. Such a result, according to ATA, would work to the detriment of all passengers and constitute an undue burden not required by the ACAA. ATA proposed limiting the covered information to critical flight and safety information. Some commenters contended that they (or their members) already give passengers with hearing or vision impairment the same relevant information that they announce aloud. The International Air Transport Association (“IATA”) contended that the proposal would not allow carriers enough flexibility to make individual assessments and that compliance would require retraining of all staff, redrafting of training manuals, and dramatic changes in procedures at high cost to the carriers and with little benefit to passengers. Some carriers took the position that individuals who are not capable of communicating with the flight crew orally or in writing should be required to travel with a companion who can establish communication. RAA characterized the scope of information in the proposed list as excessive and maintained that the “prompt” standard should only apply to information about flight safety procedures for take-off or landing. RAA said that 80 percent of airplanes operated by regional carriers either have only one flight attendant or none at all.

The individuals and disability organizations that filed comments unanimously supported the proposed rule, including the expanded list of topics. Most objected to the requirement that individuals with hearing impairments identify themselves to the carrier and request accommodation. Most supported a requirement that all oral announcements made aboard the aircraft be simultaneously transmitted visually; some claimed that in practice, sporadic requests for accommodation are not honored.

With minor clarifying changes to the language of the proposed rule, we are adopting its substance as proposed. As with §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 self-identifying passengers with hearing or vision impairment as close as possible to the time that the information is announced aloud. Here, as there, expanding the list in the current rule does not impose additional requirements on U.S. carriers, because the current rule’s list is explicitly non-exhaustive and would thus cover the items added here. Specifying our expectation informs the carriers more completely of what the rule encompasses.

Finally, the carriers’ concerns that compliance with the requirements of section 382.119 could keep their flight crews from performing their duties related to safety are misplaced. The rule expressly relieves the crew from complying when this would interfere with their safety duties under FAA and foreign regulations. There is similar language in §382.53, though, given the duties of such personnel as gate agents, ticket agents, and baggage claim personnel, the likelihood of any conflict between normal duties and legally-mandated safety duties is probably lower than in the air crew context, outside, perhaps of an unusual emergency situation.