[Federal Register Volume 61, Number 213 (Friday, November 1, 1996)]
[Rules and Regulations]
[Pages 56409-56425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28084]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 382
49 CFR Part 27
[Docket 46872 and 45657--Amendment #6]
RIN 2105-AB62
Nondiscrimination on the Basis of Handicap in Programs and
Activities Receiving or Benefiting From Federal Financial Assistance;
Nondiscrimination on the Basis of Handicap in Air Travel
AGENCY: Office of the Secretary, Transportation.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department is amending its rules implementing section 504
of the Rehabilitation Act of 1973 and the Air Carrier Access Act of
1986 concerning the provision of equipment to facilitate the boarding
by individuals with disabilities on small commuter aircraft. The rule
requires air carriers and airports to work jointly to make lifts or
other boarding devices available. The rule also harmonizes requirements
relating to airport facilities in the Department's section 504 and Air
Carrier Access Act regulations and clarifies provisions concerning
communicable diseases.
EFFECTIVE DATE: This rule is effective December 2, 1996.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 400 7th Street, S.W., Room 10424, Washington, D.C.,
20590. (202) 366-9306 (voice); (202) 755-7687 (TDD); or Nancy Ebersole,
Office of the Assistant Secretary for Transportation Policy, same
street address, Room 9217, (202) 366-4864.
[[Page 56410]]
SUPPLEMENTARY INFORMATION:
Boarding Assistance
Background
In the Department's regulation implementing section 504 of the
Rehabilitation Act of 1973, which went into effect in 1979, the
Department requires Federally-assisted airports to play a role in
boarding assistance for individuals with disabilities:
Each operator at an airport receiving any Federal financial
assistance shall assure that adequate assistance is provided for
enplaning and deplaning handicapped persons. Boarding by level entry
boarding platforms and by passenger lounges are the preferred
methods for movement of handicapped persons between terminal
buildings and aircraft at air carrier airports; however, where this
is not practicable, operators at air carrier airport terminals shall
assure that there are lifts, ramps, or other suitable devices not
normally used for freight that are available for enplaning and
deplaning handicapped passengers. (49 CFR 27.71(a)(2)(v)).
This provision does not necessarily require that an airport acquire its
own lifts or other devices. Airports may comply if other parties at the
airport (e.g., air carriers) have devices that can be used for this
purpose.
Airlines' boarding assistance responsibilities are discussed in the
Department's Air Carrier Access Act (ACAA) regulations. In 1990, when
the Department published its ACAA rule (14 CFR Part 382), the
Department knew that the rule did not address completely the issue of
boarding assistance for individuals with disabilities--particularly
those with mobility impairments--on some small commuter aircraft.
Section 382.49(a) requires carriers to provide boarding assistance,
including, ``as needed, the services [of] personnel and the use of
ground wheelchairs, boarding wheelchairs, on-board wheelchairs . . .
and ramps or mechanical lifts.'' Where level entry boarding platforms
are not available, ``carriers shall use ramps, lifts, or other devices
(not normally used for freight) for enplaning and deplaning handicapped
individuals who need them'' (Sec. 382.39(a)(2)). However, the rule
provides a partial exception to the boarding assistance requirement:
In the event that the physical limitations of an aircraft with
less than 30 passenger seats preclude the use of existing models of
lifts, boarding chairs, or other feasible devices to enplane a
handicapped person, carrier personnel are not required to carry the
handicapped person onto the aircraft by hand. (Sec. 382.39(a)(4)).
The effect of this provision is that if there is no existing model of
lift, boarding chair, or other device that will work with a particular
aircraft having fewer than 30 seats, so that hand-carrying (i.e.,
having airline personnel physically pick up a passenger in their arms
and carry the passenger on board) is the only means by which the
passenger can board the aircraft, the carrier is not required to
provide boarding assistance. The rationale for not requiring hand-
carrying is sound: hand-carrying involves significant risks of injury
to both airline personnel and passengers, and it is an undignified way
of providing assistance. Moreover, in some models of aircraft, the
stairs that are built into the door of the aircraft are not strong
enough to accommodate two or three persons at a time, as either hand-
carrying or the use of a boarding chair would require. The result of
this exception, however, is that airlines may legally deny boarding to
persons with mobility impairments in some situations. (For discussion
of this provision and its background, see 55 FR 8033-8034; March 6,
1990.)
In an advance notice of proposed rulemaking (ANPRM) issued at the
same time as the Department's Air Carrier Access Act rule (55 FR 8078;
March 6, 1990), the Department asked for additional information and
comment on the subject of lift devices for small commuter aircraft. In
the ANPRM, the Department noted that, in 1990, the development of lift
devices appeared not to have proceeded to the point where imposing
requirements for them through regulation would have been justified. We
received little information in response to this ANPRM. Subsequently,
the Department learned that a number of manufacturers had developed and
were attempting to market lift devices for small aircraft (at that time
for prices in the $8,000-$10,000 range), and that some airlines had
tested models of these lifts in a variety of operational conditions.
In June 1992, the Department held a workshop of parties interested
in this issue, including representatives of commuter airlines,
disability groups, and lift and aircraft manufacturers. The Department
heard presentations from lift manufacturers concerning their devices
and from some air carriers that had tested various devices with their
aircraft. Department staff also conducted informal surveys of carriers
that tested the lifts to determine how well carrier personnel believed
the devices had worked with different types of commuter aircraft. From
this information, it appeared to the Department that there were
available several lift devices that can effectively facilitate boarding
assistance for persons with mobility impairments on most small commuter
aircraft in the 19-30 seat capacity range.
At the same time, none of the participants in the workshop appeared
to suggest that the existing lift devices were designed to work, or
could work, with some of the smallest aircraft (e.g., those under 19
passenger seats). Carriers also raised significant concerns about the
compatibility of the lift devices with certain existing aircraft models
in the 19-30 seat class. For example, while lifts could be extended to
the door of the Fairchild Metro and Beech 1900 models, there would be
less than a foot clearance between the lift and the propeller assembly,
creating a risk of costly damage (e.g., one estimate was $250,000) to
the aircraft, as well as the loss of passenger revenue for the two
months the aircraft might spend in the shop. Some carrier participants
also expressed concerns that, once a lift got a passenger to the
aircraft door, it would be difficult or impossible in some models
(e.g., the Jetstream, Metro and Beech 1900) to transfer the passenger
via a 12-inch-wide boarding chair into the aisle and to a seat in the
aircraft (e.g., because of narrow and very limited maneuvering room in
some aircraft cabins).
One of the most important discussions at the workshop concerned the
allocation of responsibility for obtaining and operating lifts.
Generally, commuter carriers and airport operators each believed that
the other should bear the primary responsibility and cost for ensuring
accessibility to small commuter aircraft. For example, the Regional
Airline Association (RAA) representatives at the June 1992 workshop
asserted that their efforts to interest airports in sharing the cost of
lift devices had generated little response. Carriers cited what they
viewed as the greater financial resources of airports (e.g., airports
could apply for FAA Airport Improvement Program (AIP) funds or
passenger facility charge (PFC) revenues to help fund lifts); airports
cited the traditional control of carriers over passenger boarding. Both
were wary of potentially increased liability exposure from using lift
devices to board passengers with disabilities, and they urged FAA to
issue performance specifications for lifts. Disability group
representatives were concerned that, in the absence of regulatory
direction from the Department, there would be an impasse that would
postpone unreasonably passengers' ability to use small commuter
aircraft. Lift manufacturers were concerned that lengthy delays in
resolving issues in this area could
[[Page 56411]]
undermine the fragile, but developing, market for their products.
In February 1993, the FAA issued an advisory circular concerning
recommended specifications for such lifts. (FAA Advisory Circular 150/
5200XX--``Guide Specification For Mobility Impaired Passenger Boarding
Devices''). Subsequently, we learned that many lift models had been
modified by their manufacturers to meet the FAA specifications.
The NPRM
In September 1993, the Department published an NPRM proposing that
airlines and airports, working together, would obtain lift equipment
needed to provide boarding assistance to small commuter aircraft. The
rationale for this proposal was that the Department views airports and
carriers as key parts of an inextricably intertwined air transportation
system. No one can fly between Point A and Point B without using at
least one carrier and at least two airports. To complete a trip, every
passenger must be able to travel to the first airport, move through the
first airport (including ticketing, baggage checking, and check-in,
where necessary), use the interface provided by some combination of the
airport and the carrier to enter the aircraft, get to his or her seat
on the aircraft, fly to the second airport, and reverse the process at
that end of the trip. What matters, from the passenger's point of view,
is not which participant in the system is responsible for each part of
the process, but that the entire process operates so that the passenger
can successfully complete the trip.
The air travel system would never work for anyone unless airports
and carriers worked together to get passengers from their place of
origin to their destination. This is as true for passengers with
disabilities as for anyone else. From the Department's point of view,
airports and carriers have the responsibility of working together to
ensure that passengers with disabilities can use commuter air service,
which has become an increasingly important part of the air
transportation system. Consequently, the Department proposed to amend
both its Air Carrier Access Act regulations (which apply to carriers)
and its section 504 regulations (which apply primarily to airports) to
establish the joint responsibility of both carriers and airports to
ensure that passengers with disabilities have the opportunity to use
commuter air service.
The NPRM proposed to create identical requirements in the ACAA and
section 504 rules, directing each Federal-aid commercial service
airport and each carrier serving that airport to establish a written
agreement that would provide for ensuring that lifts, ramps, or other
suitable devices would be provided and used to ensure that passengers
could enter and leave small commuter aircraft.
The written agreement between carriers and airports, which would
not have to be submitted to DOT but which would be kept on file for DOT
inspection, would have to be completed within nine months of the
effective date of the rule. The agreement would call for full
implementation of accessibility to small commuter aircraft at the
airport no later than three years from the effective date of the rule.
The proposed phase-in period was intended to permit an orderly
acquisition process for equipment and to avoid increasing costs through
a too-abrupt startup requirement. The NPRM also included a provision
allowing carriers to seek a waiver from the requirement to use a lift
or other device with a particular type of aircraft on the basis that
use of the device would present an unacceptable risk of significant
damage to the aircraft. The NPRM asked for comment on whether there
should be an exception or waiver provided from the boarding assistance
requirement when aircraft design limitations would prevent a passenger
with a disability from getting to a non-exit row seat after the
individual has entered the aircraft door.
Comments and DOT Responses
1. Responsibility for Obtaining Lifts
It was apparent from comments that airlines and airports continued
to disagree over who should be responsible for providing lift devices.
Four airports and an airport association said that airlines are
traditionally responsible for assisting passenger boarding and for
obtaining equipment used for this purpose. It is inappropriate to
involve the airport in this activity, since it is airlines that work
with aircraft manufacturers on design issues, one of these commenters
said. Another suggested that it would violate nondiscrimination
provisions of 14 CFR Part 152 for an airport to participate in
obtaining lifts that some, but not all, carriers might use. Another
remarked that even if airports participated in the funding of lifts,
airlines should be responsible for operations and maintenance.
Airports, carriers, and their associations commented that insufficient
airport improvement program (AIP) funding may be available for lifts,
especially at smaller airports, or that the priority assigned lifts for
such funding was too low.
Airline associations, on the other hand, said that since airports
could use AIP and passenger facility charge (PFC) funds for the purpose
of paying for lifts, airports should pay for them. This was also true,
they said, because the requirement for lifts was a matter of public
policy that should be paid for by the public. One airline association
and three other commenters suggested that DOT should subsidize lift
purchases (one suggesting that not to do so constituted an ``unfunded
mandate''), apparently beyond the level provided in the AIP program.
There was also considerable discussion in comments of how the
proposed joint responsibility between carriers and airports might work.
One disability group urged that the carrier-airport agreements have
sufficient specificity to define how lifts would be shared and used.
Carriers and their organizations said that carriers should control use
of the lifts, and recommended advance notice requirements of 24 or 48
hours to avoid conflicting demands for lift use.
An airport asked that there be a ``good faith'' exception to the
requirement to negotiate a joint agreement, so that if a party has
negotiated in good faith it would not be sanctioned for failing to come
to an agreement. Other commenters expressed doubts about the
negotiation process. An airport doubted that airlines would even show
up for the negotiation, while an airline association thought that
airports are in a superior bargaining position and do not want to use
AIP funds to benefit disabled passengers. A state agency asked how DOT
would enforce the requirement to negotiate an agreement, while a lift
manufacturer thought the regulation should include more detail on what
items should be in the agreement.
Two commenters suggested that the rules could be different for
different-sized airports (e.g., airports get lifts for small airports,
airlines at large airports, and a 50/50 split at medium airports). Some
airports, carriers, and their organizations suggested waiving the
requirement at small airports (e.g., at which there were less than a
threshold number of enplanements) or where there was an airport a
disabled passenger could use within 50 miles, since this is within
normal travel distance to airports for many passengers. Moreover, these
comments said, many smaller airports receive small amounts of AIP
funds, a fact that stretching out the compliance date would not change.
Airports and carriers were also concerned that since few lift
passengers would be expected at smaller airports, requiring lifts may
not be cost-
[[Page 56412]]
effective. A larger number of comments, however, mostly from disability
community commenters and lift manufacturers, opposed a small airport
waiver, saying that a more sensible approach to reduce burdens on small
airports would be to grant an extended compliance period for them,
provide higher AIP priority for this purpose, or allow the use of
boarding chairs at such places.
DOT Response
Who is responsible? Who pays? The Department does not believe that
there is a good conceptual or practical alternative to requiring, as
proposed in the NPRM, that carriers and airports share the
responsibility and cost for ensuring the accessibility of the commuter
air transportation system. As discussed above, the air travel system,
from the point of view of passengers with disabilities, is an
integrated whole in which airports, boarding systems, and aircraft must
all be accessible for travel to be possible. Carrier and airport
commenters each discussed, in some detail, why they shouldn't be
responsible and why the other party should. The intractable fact
remains that, absent contribution and cooperation from both parties,
accessibility will not happen. In the context of a nondiscrimination
statute, that result is unacceptable.
The Department points out that AIP and, in some cases, PFC funds
are options that can assist in the purchase of lifts. It is not
persuasive to assert that AIP funds are not available for this purpose
because of other, purportedly higher priority, demands on the funds.
Compliance with ACAA and 504 requirements--which means assuring that
passengers with disabilities can move through terminals and onto
aircraft--is no less important than carrying out other projects to
improve airport services and facilities for all passengers. When it
enacted the ACAA and 504, Congress implicitly determined that access
for passengers is just as high a priority as access for everyone else.
At the same time, given the intertwined nature of the air
transportation system, it is reasonable to expect carriers to make a
significant contribution to accessibility as well.
The Department is aware that airports and carriers disagree on a
considerable number of issues. However, ongoing working relationships
exist and will continue in the future. Airports and carriers must work
together and find ways of agreeing on a wide variety of matters for the
air transportation system to work. Consequently, the concept of
airports and carriers negotiating to determine how accessibility will
be provided is not something new and foreign. It is also far more
consistent with the Administration's regulatory policy of avoiding
dictating national, one-size-fits-all, solutions to issues that are
better decided locally by the parties concerned.
The requirement to negotiate an agreement, like other parts of
these rules, is enforced through existing mechanisms. For example, if
an airline failed to comply with its obligations, the enforcement
procedures of 14 CFR Sec. 382.65(c) and (d) would apply. If an airport
failed to comply, the procedures of 49 CFR Part 27, Subpart C, would
apply.
The Department has paid close attention to the costs of boarding
assistance requirements, which are described in the regulatory
evaluation placed in the docket for the rulemaking. In particular, we
would note that at least one lift model is available in the $15,000
range. In order to mitigate these costs, the Department is taking two
principal steps. First, those commercial service airports with 2500--
10,000 annual enplanements are exempt from the boarding assistance
requirement. These airports account for only about 1 percent of all
enplanements, so the exemption should not significantly damage the
accessibility of the air travel system to the vast majority of
passengers with disabilities. If boarding assistance equipment and
services exist at such an airport, however, they would have to be made
available to consenting passengers (except for hand-carrying, which is
not required to be used). This is not a requirement to provide such
equipment and services where they do not already exist; it is an ``if
you have it, use it'' requirement. Second, the Department will phase in
boarding assistance requirements depending on the size of the airport.
This point is discussed below under the ``Time Frames'' heading.
It is important that boarding assistance equipment be maintained
properly, so that it is available for use by passengers who need it.
Consistent with provisions of existing ADA regulations, the rules will
require carriers and airports to maintain this equipment in proper
working order.
2. Aircraft-Related Issues
The NPRM recognized that lifts may not work well with all models of
commuter aircraft, and asked whether waivers or exceptions for specific
aircraft types that could be damaged by lifts was appropriate.
Disability community commenters and lift manufacturers generally
opposed this idea. A manufacturer said its product is compatible with
all aircraft in the 19-30 seat range and that any compatibility
problems could be worked out between the carrier and the manufacturer.
Another manufacturer said it made ``adapters'' that would make its
lifts usable with various aircraft models that otherwise could be
damaged, such as the Fairchild Metro and Jetstream 31. (DOT staff
contacted the manufacturer, learning that it had a design for the
adapter but had not built a prototype. The manufacturer estimated that
if it built the adapter, it would add about $3000 to the $56,000 price
of its lift.) Other commenters made quite a different point--that in
some operating conditions, such as boarding a seaplane from a floating
platform or in severe winter weather in Alaska, it was doubtful that
use of lifts would be feasible.
Carriers and their organizations requested exemptions for the
Fairchild Metro and Beech 1900 models because of the potential damage
problem. Also, airports, carriers, and their organizations sought
exemptions for small airports and carriers with one-employee
operations. The latter request was made on the basis that it can take
two persons to provide boarding assistance to some passengers and extra
personnel might have to be brought in to provide the assistance.
One disability group said that inexpensive modifications can be
made to lifts to make them work with most aircraft. This commenter said
that carriers should have a burden of proof to demonstrate that an
aircraft cannot be accessed without violating established safety
standards before a waiver would be warranted. Other commenters
suggested that, on 24-hour notice, an alternative means of compliance
should be provided (e.g., substituting a different aircraft), or that
airports should have enough different sorts of lifts to service all
aircraft that stop there.
About ten comments from carriers said that there were problems with
some aircraft even if a lift could get a wheelchair-using passenger to
the aircraft door. For example, turning radius limits, aisle widths of
12-14 inches, or other constraints or obstruction problems may make it
difficult, particularly for large, heavy, or significantly mobility-
impaired passengers, to proceed to a seat, or at least to a seat in
which the passenger could sit consistent with the FAA's exit row
seating rule. (Some disability community comments recommended modifying
the exit row rule in small aircraft to avoid this latter problem.)
Carrier comments suggested that
[[Page 56413]]
boarding assistance should be waived for these aircraft , since it
would be a futile exercise. (Waiver requests went primarily to the
Fairchild Metro, the Jetstream 31, and the Beech 1900 C and D, both on
this ground and/or on the ground of potential aircraft damage.) In
addition, carriers and some lift manufacturers said there should be an
exception to the boarding assistance requirement for situations in
which a passenger's size, weight, or lack of upper body strength made
it impracticable to assist him or her through a low cabin doorway to a
seat without risking injury to the passenger or carrier personnel. They
also said there are no flight attendants on 19-seat aircraft to assist
passengers with disabilities and insufficient ground crew to assist at
many non-hub airports. One disability community commenter pointed out,
however, that some individuals who cannot climb steps--and therefore
need a lift to get into the aircraft--can walk a few steps and
therefore proceed to a seat in these aircraft.
DOT Response
From comments and from its own review of various aircraft, the
Department is aware of certain ``problem aircraft'' with which existing
models of lifts do not work well. For instance, float planes, which
land on water and often pick up passengers from docks or floating
platforms, appear to be incompatible with lift use. The final rule will
not require boarding assistance for float planes.
The Department is aware that there are locations in which inclement
weather can sometimes make aircraft operations difficult. The
Department does not believe that it is advisable to waive boarding
assistance requirements in such places, however. Even airports that
face difficult climate conditions enjoy substantial periods in which
weather does not preclude aircraft or lift operations. It makes sense
to require accessibility for those times. Consequently, while the
Department does not intend the rule to require the operation of
boarding assistance equipment when it would be unsafe due to bad
weather, the rule will apply to airports in all parts of the country.
We do not anticipate that this will be an overwhelming problem at most
times and places. Weather that is sufficiently bad to preclude boarding
assistance but not bad enough to preclude aircraft operations is not
likely to occur on such a large percentage of days as would make a
boarding assistance requirement futile. When weather is bad enough to
preclude aircraft operations, the problem is obviously moot.
The Department is persuaded that it is not reasonable to impose
boarding assistance requirements with respect to aircraft models in
which a lift would create a significant risk of damage to the aircraft
(e.g., by coming within less than a foot of the propeller assembly) or
in which the internal configuration of the aircraft effectively
precludes a passenger using a boarding or aisle chair from getting to a
non-exit row seat. To the Department's knowledge, the following are the
only aircraft models that would be exempt from boarding assistance
requirements on this basis:
Fairchild Metro--The major problem with accessing this
aircraft via a lift is a propeller assembly that juts out almost on
line with the passenger entrance door. Even if a lift is able to
access the door at an angle, there would be only 4-11 inches of
space between the lift and the propeller assembly. This presents a
high risk of costly damage to the aircraft (e.g., according to
carriers, up to an estimated $250,000 plus lost revenue from the
approximately two months of repair time) if lifts are deployed with
only slight imprecision. In addition, the four foot-high doorway,
12-inch aisle, and high platform on which seats are located present
nearly insurmountable barriers to access for non-ambulatory
passengers to non-exit row seats.
Jetstream 31--Some lifts cannot access this aircraft
because of a curvature of the aircraft doorsill that prevents lifts
from interfacing with the aircraft door without damaging the
aircraft. Other lifts can interface with the aircraft; however, the
low door makes passenger boarding from the lift a very awkward
procedure (e.g., a passenger may have to be tilted backward to a
nearly supine position to enter the aircraft). The more serious
problem, however, is enabling a passenger to get from the aircraft
door to a non-exit row seat. To get to the aircraft aisle from the
door requires a passenger in a boarding chair to make a 45-degree
turn in the aisle (which is possible only for a passenger with a
12.5 inch width or less). This aircraft has a 13-inch aisle, but
seats overhang the aisle, making it impossible for even a 12-inch
wide boarding aisle to access more than one non-exit row seat. If a
passenger is able to get to this seat, the passenger must have good
upper body strength and the help of two carrier personnel to be
transferred from the chair and lifted over the back of the seat.
Beach 1900 (C and D models)--A cabin configuration
similar to that of the Jetstream 31 presents very significant
barriers to providing access to non-exit row seats for non-
ambulatory passengers. The four-foot high aircraft door makes it
necessary to tilt a boarding chair to a nearly supine position, with
the carrier personnel assisting the boarding having to bend over
while maneuvering the chair through the door. A 12-inch chair cannot
fit down the aircraft aisle, and does not allow the maneuvering room
necessary for an independent transfer. Passengers must have good
upper body strength and assistance from two carrier personnel to
rotate and swing their bodies into a seat located behind the chair
(or must crawl down the aisle to a seat).
The rule includes exceptions from boarding assistance requirements
for these three aircraft models. If there are other aircraft that have
similar difficulties, the rule gives the Department of Transportation
discretion to add to the list. It should be emphasized that air
carriers are not authorized to exempt other aircraft from boarding
assistance services on their own initiative.
It should be noted that there may be situations in which the
ability of a passenger to use a boarding chair to get to a non-exit row
seat may vary with the passenger's size and weight. For example, a very
large, heavy passenger may not be able to fit into the boarding chairs
used on narrow-aisle commuter aircraft, or may not be able to walk
through a narrow aisle to a seat, while a smaller passenger does not
have the same problem. If, for this reason, the passenger cannot get to
a seat he or she can use, providing boarding assistance is a futile
gesture that the carrier is not required to make. On the other hand, a
passenger who cannot climb steps--and therefore needs a lift to board--
may be able to walk a few steps to a seat. In such a situation,
providing boarding assistance is not a futile gesture, and the rule
requires carriers to provide it. If a passenger with a disability
asserts that he or she can walk the needed distance from the aircraft
door to a non-exit row seat, the carrier must provide the boarding
assistance and allow the passenger to attempt to reach the seat.
Passengers who use lifts to access commuter aircraft need to know,
in advance, whether lift service is available. Passengers are unlikely
to be aware which aircraft model their flight will use. Consequently,
the Department is amending the information section of the ACAA rule to
direct carriers to tell passengers who request the information or who
note that they use a wheelchair for boarding whether the aircraft model
scheduled to be used for a particular flight is one on which boarding
assistance is available. This information would include notice of the
availability of boarding assistance at boarding, departure, and
intermediate points. In addition, carriers should make such information
routinely available on all media through which they make information
available to the general public (e.g., 800 numbers, reservation
systems, published schedules). The Department emphasizes the critical
need for this information to be conveyed accurately and promptly,
because, in its
[[Page 56414]]
absence, the travel plans of individuals with disabilities are likely
to be disrupted. Airlines and their agents must ensure that this
function is performed. Like other violations of the Air Carrier Access
Act, failure to comply with this information provision can subject
regulated parties to enforcement action, including civil penalties.
Consideration of issues concerning aircraft design for
accessibility is beyond the scope of this rulemaking. We note, however,
that some older models of commuter aircraft that present some of these
problems appear to be gradually being phased out of the commuter fleet.
The 1996 FAA commuter safety standards are likely to accelerate the
elimination of some older 19-seat models from the fleet. The exit row
rule is part of an FAA safety rule separate from Part 382.
Consideration of changes in that rule related to seat availability in
small commuter aircraft are also beyond the scope of this rulemaking.
The Department does not believe, given the way aircraft are used
and scheduled by carriers, that it would be practicable to require more
accessible models of aircraft to be designated or substituted for
flights that passengers with disabilities want to use, even on advance
notice.
3. Boarding Assistance Methods
The NPRM proposed that boarding assistance should be provided using
``suitable devices (not normally used for freight)'' but that ``hand-
carrying'' (i.e., picking up a passenger's body in the arms of airline
personnel) would never be required. There was general agreement among
commenters that hand-carrying was a bad idea, for both safety and
dignity reasons. Some disability community commenters did say, however,
that it should be permitted in an emergency or when a lift was not
available or inoperative, at least with the consent of the passenger.
The NPRM, like the present rule, did not exclude boarding chairs,
used to carry passengers up airstairs, from the scope of ``suitable
devices'' that could be used to provide boarding assistance. It did ask
for comment on whether the use of boarding chairs was appropriate for
this purpose. Several commenters (including lift manufacturers,
disability community commenters, and an airline) said that boarding
chairs should be used for this purpose only when a lift is inoperable
or when there is an emergency. For most disability community
commenters, using a boarding chair in this way is tantamount to hand-
carrying and therefore strongly disfavored. (One commenter noted that
the use of boarding chairs for vertical access, which it regarded as
objectionable, should be distinguished from the use of aisle or
transfer chairs on board the lift or aircraft, which are needed to
assist many passengers to their seats.) On the other hand, many other
commenters (including airlines and their groups, airports, and one
disability group) advocated permitting the continued use of boarding
chairs when it was more cost-effective to do so (e.g., at an airport
with few enplanements), when it would avoid delay (e.g., when an
airport's lift was being used elsewhere), or when a lift was broken.
These commenters said allowing the use of boarding chairs in at least
some situations would provide greater flexibility to all concerned.
DOT Response
The main point of this regulation is to ensure that, in as many
situations as possible, passengers with disabilities be able to travel
by air, with safety and dignity. Having airline personnel carry a
passenger up stairs in a boarding chair increases risk of injury both
to passengers and airline personnel, and it can often be an undignified
and frightening experience for passengers. Consequently, the rule does
not permit this practice.
This does not mean that boarding chairs and/or aisle chairs cannot
be used in the boarding assistance process. Indeed, their use is
necessary to get the passenger to a seat from a lift. Nor does it mean
that carrier personnel are relieved of their obligation, as part of the
boarding assistance process, to assist passengers in transferring from
their own wheelchair to a boarding or aisle chair, and then from that
device to an aircraft seat. It just means that, under normal
circumstances on 19-30 seat aircraft, carrier personnel may not lift
passengers in boarding chairs up stairs as the means of effecting the
level change needed for boarding. Boarding stairs are not ``suitable
devices'' for this purpose on 19-30 seat aircraft.
In abnormal circumstances (e.g., if a lift breaks down and needs to
be repaired) or with respect to aircraft that are exempt from the
boarding assistance requirement, the carrier would use whatever means
are available (including boarding chairs but not hand-carrying) to
provide boarding assistance. The use of alternative means is
conditioned on the passenger's consent. This is not a requirement to
create a means of boarding assistance where none exists or is feasible.
It simply means that if a practicable alternative means of providing
assistance in fact exists in a particular situation, carriers are to
use it. In an emergency evacuation situation, the carrier would
obviously do whatever is needed to deal with the emergency, regardless
of other considerations.
There is apparent unanimity that hand-carrying (in the sense of
bodily picking up a passenger for purposes of a level change, as
distinct from providing assistance using a boarding or aisle chair or
assisting in the transfer of a passenger) is a bad idea. The final rule
specifically provides that this practice is never required (other than
when necessary for an emergency evacuation).
The Department notes that the requirements of this amendment
concern boarding assistance only for 19-30 seat commuter aircraft. The
existing provisions of Part 382 concerning boarding assistance for
larger aircraft (see Sec. 382.39(a) (1)-(3)) remain in effect, without
change. Under these requirements, airlines may carry passengers up
airstairs in boarding chairs. Airstairs used with larger aircraft are
more likely to have sufficient weight-bearing capacity for this type of
boarding assistance, and many of the lift models designed for 19-30
seat aircraft do not work with larger aircraft. While the Department
believes that use of lifts for boarding is preferable for larger as
well as smaller aircraft, changes in the methods of boarding assistance
used for the larger aircraft are outside the scope of this rulemaking.
4. Time Frames
The NPRM contained two time frames. First, it proposed 9 months
from the effective date of the rule for carriers and airports to
complete agreements to provide lifts. Second, it proposed 3 years from
the effective date of the rule as the implementation date for lift
service under the agreements.
With respect to the time period for the agreements, airline
associations, airlines and some airports suggested a year, principally
because they believed it would take that time to work out the multiple
agreements necessary under the NPRM. Lift manufacturers and disability
groups, on the other hand, favored shorter time frames (e.g., 2-6
months), principally because many years have passed since the ACAA
regulations have been in place, lifts have been available for some
time, further delay would work a financial hardship on manufacturers,
and airlines and airports have had a long time to prepare to provide
boarding assistance. Given the accessibility needs of passengers, these
commenters did not believe that a longer negotiation period was
warranted. An airport association,
[[Page 56415]]
an airport, and an airline favored the proposed 9-month period.
There was a similar variety of views with respect to the
implementation date for the agreements. Disability groups and equipment
manufacturers favored a 1 or 1\1/2\-year implementation period, rather
than the three-year period proposed in the NPRM, but supported
extensions of up to five years for small airports, as opposed to
waivers. These commenters said that lifts are available, that airports
and airlines have had a long time to prepare to provide boarding
assistance, and that equipment costs were small compared to other costs
regularly incurred by airlines and airports. One disability group said
that boarding chairs should be required to provide access immediately.
On the other hand, an airline association and some state and local
transportation agencies favored the proposed 3-year period. Many of
these commenters added that the rule should be flexible, with
provisions for granting relief from the deadline if factors such as
funding delays or the inability of manufacturers to meet demand
prevented parties from complying on time. One airline association said
the 3-year period should start to run from the date of the agreement,
rather than the effective date of the rule, because manufacturers would
not be able to meet the demand otherwise.
Two disability agencies said that implementation should be required
as soon as practicable, with three years being the outside limit. Two
commenters, an airline and an individual, favored a two-year period.
Two lift manufacturers suggested a staggered implementation schedule,
with 12-15 months for larger airports, two years for medium-size
airports, and three years for small airports. They expressed the
concern that, absent such a schedule, acquisition of lifts would be
back-loaded at the end of the implementation period.
DOT Response
The Department's task is to find a good balance between the need to
implement accessibility as soon as possible and the need to give
parties a reasonable amount of time to do the work needed to accomplish
this objective. With respect to the time to conclude agreements, the
Department believes that the NPRM proposal of 9 months is a good middle
ground between these two considerations, as well as between the
concerns expressed by different groups of commenters.
With respect to implementation time, the Department will require
the agreements to be carried out as soon as practicable, as is the
typical practice in disability regulations requiring modifications to
facilities or practices (e.g., program accessibility changes required
under the Department of Justice ADA Title II regulation). The maximum
time for implementation will be two years for large and medium hubs
(1.2 million or more annual enplanements), three years for small hubs
(250,000-1.2 million annual enplanements), and four years for non-hub
primary airports (10,000-250,000 annual enplanements). This phase-in
will result in accessibility at the airports carrying the greatest
number of passengers sooner (hubs handle 97-98 percent of total
enplanements), while reducing costs and burdens at the smaller
airports. Again, these time frames represent what the Department
believes to be a good balance among the policy considerations and
commenter concerns involved.
5. Other issues
The NPRM raised the question of whether use of lifts would create
schedule disruptions or delays, particularly when multiple demands on
lift use might be made. Commenters had a number of thoughts on this
point. An airline association said that it takes 10-15 minutes to get a
lift to a given aircraft and board a disabled passenger, possibly
interfering with the 5-20 minute turnaround time many carriers try to
achieve, leading the group to request a 48-hour advance notice
requirement for assistance. Another airline association and an airline
also supported the idea of advance notice for boarding assistance, to
avoid or help deal with conflicting demands for lift service. Two
airlines and an airport expressed concern about delays, particularly at
hub airports where there might be multiple demands for assistance, but
one of these airlines noted it had no accurate data on the time needed
to complete a boarding using a lift. However, airline commenters
generally said that boarding passengers in chairs was faster and more
cost-effective than using lifts.
Two commenters noted that airlines encounter flight delays for a
variety of reasons, and thought that assisted boardings would not
significantly add to this problem, given their relative infrequency. A
lift manufacturer said an actual boarding with its lift took just 3-5
minutes, faster, it said, than using a boarding chair. Another
manufacturer and a state agency noted that, under an FAA advisory
circular for lift devices, lift boardings are to be accomplished in six
minutes or less, which would also be unlikely to create significant
delays. Several disability community commenters also expressed doubts
that delays would be a significant problem, saying there was no data to
support the idea that a problem would exist.
The NPRM also asked about what, if any, training requirements there
should be for personnel who provide boarding assistance. Two airline
associations and two airlines said that no additional training
requirements--beyond the general training requirement provided in the
existing ACAA rule--was warranted. Airlines already have a vested
interest in making sure their personnel perform their duties safely and
effectively, one of the associations added. Three equipment
manufacturers also opposed additional training requirements, one noting
that the FAA advisory circular already called for training for lift
operators, one asserting that the training required by the FAA circular
was too lengthy, and the other expressing concern about the cost of
training to manufacturers.
A larger group of commenters, including disability groups,
individuals, and state and local agencies, supported more specific
training requirements. Four of these specified that sensitivity
training should be required. A disability group said DOT should
strenuously monitor training, since they saw poorly trained employees
as one of the biggest problems that passengers with disabilities
encounter. An airport supported training but suggested that it should
be provided by manufacturers and carriers (unless the airport actually
operated the lift).
Three commenters suggested that the use of lifts should be required
for aircraft with fewer than 19 seats, if the lifts work with the
particular aircraft. One of these commenters noted two small aircraft
models with which lifts would work. An airport suggested that this
requirement would make sense only in cases where there was an
accessible means of deboarding at the destination point. Several
disability community commenters said that, whatever the final
requirements, allowing denied boardings was not acceptable. Lift
manufacturers emphasized their products were available.
DOT Response
The final rule, like the NPRM, requires boarding assistance under
the agreement required by this amendment only for 19-30 seat aircraft.
There may be some situations in which the same boarding assistance
equipment can be used to provide access to larger or smaller aircraft.
Where this is the case, the Department recommends that carriers and
airports use it for this
[[Page 56416]]
purpose, in preference to denying transportation on smaller aircraft or
using less desirable means of boarding assistance for larger aircraft.
The general ACAA requirement of training to proficiency (including
refresher training, as needed, to maintain proficiency) in matters
affecting transportation of passengers with disabilities applies to
boarding assistance as well as other activities (see Sec. 382.61(a); to
the extent that airport personnel are involved in boarding assistance
at a given airport, a similar requirement extends to airports through
the amendment to 49 CFR Part 27). While training is clearly important
for all aspects of transportation accessibility, the Department does
not believe, as a general matter, that a separate training requirement
specifically focused on boarding assistance is needed. We note that
Sec. 382.61 requires refresher training, as appropriate to the duties
of each employee, to ensure that proficiency is maintained. Because, in
the absence of means of boarding assistance, some commuter carriers may
have served few persons with mobility impairments, carrier employees
trained previously may not have maintained proficiency in boarding
assistance and other matters necessary to proper service to such
passengers. Where this is the case, the training requirements of the
ACAA call for bringing relevant personnel up to proficiency in all
these matters.
There is one exception. The training requirements of Sec. 382.61(a)
apply only to carriers who operate aircraft with more than 19 seats.
Carriers who operate aircraft with 19 seats, but do not operate larger
aircraft, are not covered by this requirement. Consequently, this rule
will require any carriers falling into this category to provide
training to proficiency in boarding assistance for those personnel who
perform boarding assistance duties. This amendment does not require
such carriers to carry out other training responsibilities under
Sec. 382.61(a), although it is intended that employees of these
carriers receive refresher training as needed to maintain proficiency
in boarding assistance services.
The information provided by commenters concerning the time required
for assisted boarding varied considerably. Even given the lengthier
scenarios, however, it is not reasonable to conclude--absent a
massively larger demand for assisted boardings than any commenters have
anticipated--that significant systemic schedule disruption is likely to
occur. As some commenters pointed out, individual flights are delayed
for a variety of reasons--weather, mechanical problems, air traffic
congestion, waiting for passengers from incoming connecting flights,
etc.--on a routine basis. No one likes these delays, but it seems
fanciful to suggest that delays from lift boardings of disabled
passengers will make a significant difference in the overall pattern of
delayed flights, or have a measurable effect on a carrier's overall on-
time performance record.
The Department is not persuaded that this concern warrants adding a
48-hour advance notice requirement for boarding assistance. Obviously,
passengers may wish to inform carriers of their plans in advance to
attempt to make their arrangements as smooth as possible. However, as
in the case of passengers who are traveling with electric wheelchairs,
we believe it is reasonable for airlines to have some reasonable amount
of time to provide the service in question. Consequently, carriers will
be permitted to require that an individual needing lift service check
in at least an hour before scheduled departure.
Airport Facility Requirements
Background/NPRM
The Department's current section 504 and ACAA provisions concerning
airport facilities differ in a number of details. This NPRM proposed to
make changes to harmonize the two sets of requirements. The Department
published a notice of proposed rulemaking for section 504 and an
advance notice of proposed rulemaking under the ACAA that would have
harmonized the two provisions in 1990, at the same time as it published
its ACAA final rule. The Department received very few comments in
response to those notices, and many of the specific points raised by
the commenters have been overtaken by the enactment of the Americans
with Disabilities Act (ADA).
The NPRM proposed to add requirements in the ACAA and section 504
rules for a ``program accessible'' path from the beginning of a
passenger's encounter with the airport facility to the aircraft door,
with emphasis on the means of moving between the gate and the aircraft.
This is a particular concern with respect to commuter aircraft, which
typically do not use loading bridges, and passengers often have to
descend from the gate level to the tarmac level to board the aircraft.
The proposal suggested that meeting Title III or Title II ADA standards
was an appropriate requirement for airports and airlines under the ACAA
and section 504, respectively.
Because ADA facility accessibility standards say little
specifically about airports, the Department proposed to retain, with
some modifications, the airport-specific requirements of the current
ACAA and 504 rules. The NPRM sought comment on whether doing so would
be confusing or duplicative. The NPRM repeated the existing language of
the ACAA regulation concerning telecommunication devices for the deaf
(TDDs), saying that at least one TDD shall be placed in each terminal.
The NPRM asked for comment on how this requirement should be
interpreted and implemented.
Comments
Two issues predominated in commenters' discussion of this portion
of the proposal: the idea of an accessible path through the airport and
the placement of TDDs. A disability group objected to the accessible
path proposal on the basis that it fell short of what was required by
the ADA and ACAA. This commenter also said that such steps as using a
boarding chair to carry a passenger down steps from the gate level to
the tarmac was not a proper part of an accessible path. A state agency
said that using program accessibility approaches other than facility
modification had saved the commenter a substantial amount of money.
Three disability community commenters said that the ADA accessibility
guidelines (ADAAGs) should apply to an accessible path through
airports. An airport association and an individual suggested that
airports should have five years to implement an accessible path. An
airport supported the accessible path concept, as long as the rule made
clear that boarding assistance was the airlines' job. An individual
said that airports should have a disability specialist available to
assist passengers. A state agency noted that there were some
inconsistencies between the ADAAGs and the ACAA provisions that the
NPRM proposed to retain, and also pointed to inconsistencies between
the ADAAGs and the Uniform Federal Accessibility Standard (UFAS), which
public entities could choose to use under Title II of the ADA.
With respect to TDDs (one commenter suggested using the term
``TTYs'' instead), two commenters suggested requiring improved signage
to direct passengers to where the instruments were located. A number of
commenters asked for more specificity in the definition of
``terminal,'' to avoid differing interpretations. A disability agency
suggested simply using the ADAAG standard for placement of these
[[Page 56417]]
phones, while a TDD manufacturer supported specifying a number of
specific locations in terminals where TDDs would have to be placed.
(This manufacturer quoted a $995 price for a vandal-resistant public
unit.) An airline favored keeping the existing standard, to avoid
confusion between ADA and ACAA requirements.
DOT Response
The Department believes that the simplest and best solution to the
issue of airport accessibility standards is to make applicable to
airports (through section 504) and airlines (through the ACAA) the
requirements applicable to other public facilities and public
accommodations of Titles II and III of the ADA, respectively. This
means that there will be one common standard for airport access, under
which airports and airlines will be subject to the same obligations as
other transportation facilities and places of public accommodation.
Special airport-related standards that, as some commenters pointed out,
could cause confusion will be eliminated.
This approach is consistent with the relationship among disability
statutes that Congress intended. Air carriers' terminal facilities
appear not to be subject to direct ADA coverage. Under the Department
of Justice (DOJ) rules implementing Title III of the ADA, airport
terminals are not viewed as a place of public accommodation. The reason
is that places of public accommodation include only those terminals
used for the provision of ``designated'' or ``specified'' public
transportation, and transportation by aircraft does not constitute
``designated'' or ``specified'' public transportation. Congress
excluded transportation by aircraft from these ADA provisions because
Congress had already subjected carriers to the ACAA, and it did not
want to impose duplicative requirements.
The language and legislative history of the ADA, however, reveal no
Congressional intent that carriers' facilities be subject to any
different substantive requirements from those affecting places of
public accommodation. It is clear that carriers have an ACAA obligation
with respect to airport facilities. In defining the standard by which
carriers' compliance with this obligation is judged, the Department
believes it makes sense to refer to the ADA standard for public
accommodations. Consequently, the final rule provides that carriers,
with respect to terminal facilities and services, would be deemed to
comply with their ACAA obligations if they meet the requirements
spelled out for places of public accommodation in Department of Justice
Title III ADA rules.
Under Department of Justice regulations implementing Title II of
the ADA (28 CFR Part 35), ``title II applies to everything and anything
a public entity does * * * All governmental activities of public
entities are covered.'' (56 FR 35696; July 26, 1991). Public airport
authorities are public entities for purposes of Title II; consequently,
their activities and facilities appear subject to the requirements of
DOJ Title II rules. It has long been clear that airport authorities
that receive DOT financial assistance are subject to section 504 of the
Rehabilitation Act of 1973, as amended. In amending the Department's
section 504 rule provision concerning DOT-assisted airports, it makes
sense to refer to ADA standards. (Congress, in enacting the ADA, made
clear that it intended for consistent substantive standards to apply
under both statutes.) Therefore, under the final rule, the basic
standard for judging whether a public airport authority complies with
section 504 is compliance with the DOJ rules for Title II of the ADA.
Obviously, there are some portions of airports at which airport
operators' section 504 obligations and the ACAA obligations of carriers
overlap. The Department believes that these overlaps can be treated in
the same manner as the relationships between public entity landlords
and private entity tenants discussed in the Department of Justice ADA
regulations. This means, of course, that airports and airlines will
have to work out accessibility issues and relationships at the local
level.
This approach means that there will not be special requirements in
the DOT rules concerning such issues as placement of TDDs and inter-
terminal transportation. Inter-terminal transportation will be subject
to the DOT ADA regulations affecting transportation services generally.
(Intra-terminal transportation, as a service provided by airlines and/
or airports, is subject to the same Title II or Title III requirements
as any other service. There are no ADAAG standards applicable to the
design or construction of intra-terminal vehicles, such as the electric
carts used in many airports.) Placement of TDDs will be subject to the
same standards affecting public facilities and places of public
accommodation under the ADA. Consequently, the issue concerning the
definition of ``terminal'' for TDD placement purposes becomes moot.
We point out that not only the general terminal areas, but also
some areas open to part of the traveling public (e.g., the airline
``clubs'' providing special accommodations in terminals to frequent
fliers or persons who pay a fee to the airlines) are subject to the
accessibility requirements of this rule. These are spaces that, in
Title III terms, would be places of public accommodation, and it is
unlikely that most would fall within the limited ``private club''
exception to the ADA, as defined in the Department of Justice Title III
rules. One implication of this coverage is that, if telephone service
is provided to ``members'' within the club space, then TDD requirements
would apply to the ``club.'' It would not be consistent with the rules
for the carrier to refer the passenger to a TDD phone in the general
passenger area of the terminal, since the whole point of the club is to
provide a refuge from the noise and bustle of the terminal.
The rule provides that the Americans with Disability Act
Accessibility Guidelines (ADAAGs) will be the standard by which airport
facility accessibility will be judged. The ADAAGs include a provision
(10.4.1) dealing with new construction at airports. This provision
applies directly to new construction and alterations at airports. It is
also the standard for modifying facilities to meet accessibility
requirements for existing facilities, under the ``program
accessibility'' (see 28 CFR Sec. 35.150) or ``barrier removal'' (see 28
CFR Sec. 36.304-305) provisions of the Department of Justice Title II
and Title III rules.
The Department is aware that, for the present, public entities
subject to Title II of the ADA can choose between compliance with the
ADAAGs and compliance with the Uniform Federal Accessibility Standards
(UFAS), which differ in some particulars from the ADAAGs. The
Department of Justice, DOT, and the Architectural and Transportation
Barriers Compliance Board (Access Board) have proposed applying the
ADAAGs as the exclusive standards for Title II entities. Rather than
further amend the ADA and ACAA rules after this ADA rule change goes
into effect, we believe it is more sensible to use the ADAAGs as the
standard for airport accessibility at this time. We regard the ADAAGs
as the pre-eminent accessibility standard at this time, and its use
will also avoid any inconsistency between the standards applicable to
airlines and airports under this rule.
Given the application of ADA requirements and standards to airport
facilities, the only point on which the Department believes it is
necessary to spell out an additional specific requirement concerns an
``accessible
[[Page 56418]]
path'' for level changes between gate and aircraft boarding areas. The
Department clearly interprets ADA requirements as applying to the path
an individual must take between the entrance to the airport and the
means of boarding the aircraft, specifically including the way a
passenger moves between the gate and the aircraft. This is important
because, in many cases, the gate area will be on an upstairs level of
an airport, while aircraft--particularly small commuter aircraft--are
boarded from the tarmac. The basic idea is that a key aspect of
airports' and carriers' program--getting someone through the airport
and onto an aircraft--must be accessible to individuals with
disabilities, including those using wheelchairs.
Communicable Diseases
Background
Section 382.51 of the existing ACAA rule provides that a carrier
may not refuse transportation to a passenger, require the person to
provide a medical certificate, or impose other conditions or
restrictions on passengers, on the basis that the passenger has a
communicable disease, except
with respect to an individual who has a communicable disease or
infection which has been determined by the U.S. Surgeon General, the
Centers for Disease Control, or other Federal public health
authority knowledgeable about the disease or infection, to be
transmissible to other persons in the normal course of flight.
This provision was originally designed in response to a number of
incidents in the 1980s in which persons with AIDS had been denied
transportation or otherwise discriminated against by air carriers,
apparently because of fear of, or misinformation about, HIV infection
and how it is transmitted. It subsequently became apparent to the
Department that this provision of the rule needed clarification. Given
the absence of definitive guidance from the Surgeon General, the
Centers for Disease Control, or the Public Health Service, (which the
Department has unsuccessfully sought), the closest approach to medical
guidance the Department has been able to find is a Food and Drug
Administration (FDA) regulation listing several diseases (e.g.,
infectious tuberculosis, several viral hemmoragic fevers) appropriate
for travel restrictions. The Department issued guidance based on this
FDA list, stating that since other diseases have not been named by
Federal public health authorities, carriers may not deny or restrict
transportation of persons with other diseases.
Carrier medical personnel expressed the concern that this guidance
is too restrictive, leading to potential conflicts between the rule and
their normal, prudent medical judgment. They have cited persons in the
infectious stages of chicken pox or measles as persons who it may be
appropriate to restrict, to protect the health of other passengers. In
response to their concern, an airline association requested that the
Department withdraw the guidance in question. In addition, it has been
pointed out that, read literally, the current regulatory provision
could be construed to allow carriers to exclude persons with illnesses
that are clearly communicable by airborne transmission or casual
contact but which are not serious for most persons, such as the common
cold (the Department would not construe the rule in this fashion,
however).
The Department based its NPRM proposal on three principles:
(1) It is reasonable for carriers to impose restrictions on
transportation only of persons with diseases that are readily
communicable, in the normal course of flights, by airborne
transmission or casual contact. (For example, restrictions could not
be imposed on persons because they were infected with HIV.)
(2) It is reasonable for carriers to impose restrictions on
transportation only of persons with diseases that normally have
serious consequences for the health of persons who catch the
disease. (For example, restrictions could not be imposed on persons
because they have a common cold.)
(3) Carriers should impose restrictions on persons for reasons
relating to communicable diseases only with the advice and
concurrence of a physician. (That is, airline personnel such as
pilots, flight attendants, or gate agents could not make unilateral
decisions to impose restrictions on passengers.)
NPRM
The Department proposed rewriting the current Sec. 382.51(b) to
reflect these three principles. The NPRM proposed two methods carriers
could use to implement these principles. First, when faced with someone
who may have a contagious disease that may make travel inadvisable, the
carrier can obtain a specific recommendation from a physician. Second,
the carrier, together with its medical staff or consultants, could
devise a list of diseases that can affect travel, consistent with the
three principles. The list would include information on the stages of
various diseases during which travel would be contraindicated. The list
would be made part of the carrier's regular information base for
employees (e.g., manuals, computer reservation system instructions).
The NPRM suggested that carriers, to promote consistency, should
coordinate a single, unified list, so the same diseases have the same
consequences on all airlines.
Under the proposal, in cases where there is no dispute between the
carrier and a passenger over the fact that a passenger has a disease on
the list at a point in time when it is contagious, the passenger could
be denied transportation until a later time without the carrier having
to obtain a recommendation from a physician in the particular case.
However, if the passenger denied that he or she has a disease on the
list, or acknowledges having the disease but insists that it is not at
the stage which the list describes as infectious, then the carrier
employee would have to consult a physician.
In addition, the proposed amendment stated that airlines would have
to impose the least restrictive alternative in communicable disease
situations (e.g., should not deny transportation when requiring a
medical certificate is sufficient); would allow a passenger to travel
at his or her original fare if travel is postponed as the result of
having a communicable disease; and would provide, on request, a written
explanation of any restrictions that are imposed for reasons relating
to communicable diseases.
Comments
One airline and a number of disability community commenters
supported the NPRM proposal. One disability group suggested adopting
the Department of Justice's ``direct threat'' standard (from DOJ's ADA
Title III rule), including its requirement that there be an
individualized assessment, based on reasonable judgment that relies on
current medical knowledge or the best objective evidence available, to
ascertain the nature, duration, and severity of the risk, as well as
mitigation measures that could apply. Providing the passenger a face
mask was one mitigating measure suggested by two commenters. Another
such group recommended that the carrier should be required to consider
the recommendations of the passenger's treating physician, while a
carrier said that the passenger's personal physician should certify
that the individual can fly safely.
With respect to the idea of a list of communicable diseases,
airlines and their associations had a variety of comments. One airline
wanted DOT to create the list. Other airlines wanted a Federal health
agency to create a list, said the medical community's input
[[Page 56419]]
should be obtained, that there should be flexibility to add new
diseases to the list, and that there should be uniformity in any such
list given that passengers often use more than one carrier for a trip.
Two carriers said that airlines, which do not have extensive medical
staffs, should not be assigned the task off creating a list. For the
same reason, one association said that an industry group should be
formed to compile the list. Another association questioned the utility
of such a list, since new diseases appear from time to time, and
reliance on a list would be a disincentive to considering individual
circumstances.
With respect to the idea of consultation with a physician, two
carriers objected that it was impractical to seek medical advice in
each case, and that airline personnel should have the discretion to
deny boarding. An airline association suggested that qualified medical
personnel other than a physician should be permitted to make the
determination involved, since physicians might not be available in a
timely fashion.
Other comments included a request by an airline association that
diseases transmissible by casual contact, as well as by airborne means,
should be a ground for restricting travel, a suggestion by the same
group that any ability to travel at a later date be limited to 60 days,
and a request by a disability organization that carriers be required to
reimburse passengers for expenses incurred because of a carrier's
decision to postpone travel.
DOT Response
The Department has considered the comments on this issue carefully,
recognizing the difficulty that carriers and passengers can have in
making judgments about when it may be inappropriate for a passenger to
travel because of illness. Based on comments, the Department's
discussions with Federal health officials over a period of several
years, and the lack of expertise within the Department, we have decided
that it is not feasible for us to compile a list of diseases that would
warrant a denial of transportation or to ask carriers to do so.
Consequently, we are not adopting the portion of the proposal
concerning lists.
With respect to the criteria for making decisions on these issues,
the Department believes the best available model is the ``direct
threat'' language in the Department of Justice's Title III ADA
regulation. The DOJ language reads as follows:
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. In determining whether an individual poses a direct threat
to the health or safety of others, a public accommodation must make
an individualized assessment, based on reasonable judgment that
relies on current medical knowledge or on the best available
objective evidence, to ascertain: the nature, duration, and severity
of the risk; the probability that the actual injury will actually
occur; and whether reasonable modifications of policies, practices,
or procedures will mitigate the risk. 28 CFR Sec. 36.208).
This is well-established language that gives due regard to both
nondiscrimination on the basis of disability and the need of a public
accommodation to make reasoned judgments to protect the health and
safety of other persons. Consequently, the final rule adapts this
language to the context of air travel.
This approach is compatible with the Department's purposes in
publishing its NPRM. For example, a communicable disease that is not
readily transmissible by airborne means or by casual contact is
unlikely to pose a direct threat; nor would a disease that, if
communicated by these means, does not pose a significant health threat
to the general passenger population. AIDS, on one hand, and the common
cold, on the other, are examples of communicable diseases that would
not generally pose direct threats. Making medical judgments cannot be
entrusted to personnel without medical training. Consequently, it is
unlikely that a ``direct threat'' finding could be made about a
communicable disease that did not rest on a medical determination by a
physician or nurse.
This direct threat concept dovetails with the requirement that the
airline find the least restrictive means of addressing an identified
risk. It is not consistent with this provision to deny transportation
to someone if a medical certificate, or a face mask, or seating the
individual a few rows away from other passengers on a half-full flight,
or some other action will be sufficient to mitigate the risk to other
passengers involved to the point where the individual can travel
without endangering others.
While it would be useful for an airline concerned about a
passenger's condition to consult with the passenger's physician, we do
not believe that it is necessary to mandate such consultation in the
regulation. Such consultation occurs in many cases now; certainly it
would be a reasonable part of the process needed to make a direct
threat determination. Nor do we believe it would be appropriate to
require carriers to compensate passengers whose travel is delayed for
medical reasons under this section. Denial of service by a carrier
under these circumstances does not constitute improper conduct that
should result in compensation. We note that the NPRM already covered
diseases spread by casual contact as well as airborne means, and the
final rule retains this point. Finally, we agree with the comment that
someone whose travel is postponed for this reason should not have
perpetual right to make the trip. We think that a 90-day limit could
fairly be imposed by the carrier.
The FAA is conducting research into cabin air quality issues,
which, beginning next year, will include research into the risk of
passengers and crews contracting infectious diseases. In addition,
there is a multiagency working group under the auspices of the
Committee on International Science, Engineering, and Technology Policy
of President Clinton's National Science and Technology Council. This
group is reviewing the U.S. role in detecting, reporting, and
responding to outbreaks of new and re-emerging infectious diseases. To
the extent that research or recommendations from these or other sources
provides additional information bearing on policies affecting airline
transportation of individuals with communicable diseases, the
Department can take account of it in future rulemaking.
Other Issues
In both the ACAA and section 504 rules, the NPRM proposed updating
terminology (e.g., changing ``handicapped person'' to ``individual with
disabilities'') consistent with practice under the ADA. The proposed
section 504 amendment would also make two administrative additions,
requiring the submittal of transition plans by any airports which had
not already done so and specifically applying nondiscrimination on the
basis of disability requirements to subsidized Essential Air Service
(EAS) carriers. Unlike most carriers, who do not receive Federal
assistance, these carriers have been covered under the existing section
504 rule, but they have not been mentioned specifically, since Part 27
was promulgated before the Essential Air Service program came under DOT
jurisdiction in January 1985. This administrative addition does not
create any new obligations for subsidized EAS carriers.
One airline commented that airlines should not have to change the
terminology in their compliance manuals if the rule's terms change. We
agree, and we are not imposing such a requirement. There were not any
other
[[Page 56420]]
comments on these proposals, which the Department will adopt as
proposed.
The NPRM asked for comment on three other issues--seating
accommodations for persons with disabilities, provisions concerning
collapsible electric wheelchairs, and matters relating to the use of
oxygen by passengers. These issues are addressed in a separate
supplemental notice of proposed rulemaking in today's Federal Register.
Withdrawal of 1990 Supplemental Notice of Proposed Rulemaking
In the March 6, 1990, issue of Federal Register in which the
Department published the original 1990 Air Carrier Access Act final
rule, the Department also published a supplemental notice of proposed
rulemaking (SNPRM; 55 FR 8076; RIN 2105-AB61). The Department is
withdrawing this SNPRM at this time.
The SNPRM concerned three subjects: airport transportation systems,
standards for boarding chairs, and substitute service when boarding
assistance is not available for small commuter aircraft. These matters
have been overtaken by the present rulemaking, which applies ADA
standards to airport transportation systems and requires boarding
assistance, using lifts rather than boarding chairs, for small commuter
aircraft. The withdrawal is an administrative action that will remove
from the Department's regulatory agenda an item pertaining to an NPRM
on which no further action is anticipated.
Guidance Concerning Service Animals in Air Transportation
The Department receives frequent questions about the transportation
of service animals by airlines. On July 26, 1996, the Department of
Justice issued Americans with Disabilities Act guidance concerning the
access of service animals to places of public accommodation. The
following guidance is based on the DOJ issuance, with adaptations to
the context of air transportation and answers to questions the
Department has been asked.
The Department of Transportation's rules protecting the rights of
air travelers with disabilities require air carriers to permit
passengers to fly with their service animals. The Air Carrier Access
Act (ACAA) rules say the following:
Carriers shall permit dogs and other service animals used by
individuals with disabilities to accompany the person on a flight.
(1) Carriers shall accept as evidence that an animal is a
service animal identification cards, other written documentation,
presence of harnesses or markings on harnesses, tags or the credible
verbal assurances of the qualified individual with disabilities
using the animal.
(2) Carriers shall permit a service animal to accompany a
qualified individual with disabilities 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.
(14 CFR Sec. 382.55(a))
If a service animal cannot be accommodated at the seat location
of the qualified individual with disabilities whom the animal is
accompanying . . . the carrier shall offer the passenger the
opportunity to move with the animal to a seat location, if present
on the aircraft, where the animal can be accommodated, as an
alternative to requiring that the animal travel with checked
baggage.
(14 CFR Sec. 382.37(c))
The questions and answers below are intended to help carriers and
passengers understand how to respond to service animal issues.
1. Q: What is a service animal?
A: Under the ACAA, a service animal is 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.
2. Q: What work do service animals perform?
A: Service animals perform some of the tasks and functions that the
individual with a disability cannot perform for him or herself. Guide
dogs that help blind individuals are the type of service animal most
people are familiar with. But there are service animals that assist
persons with other types of disabilities in their day-to-day
activities. Some examples include--
Alerting persons with hearing impairments to sounds.
Pulling wheelchairs or carrying and picking up things for
persons with mobility impairments.
Assisting persons with mobility impairments with balance.
An animal that does not perform identifiable tasks or functions for
an individual with a disability probably is not a service animal.
However, it is not essential that the animal perform the functions for
the individual while he or she is traveling on the aircraft. The
functions can be ones that the animal performs for the individual at
his or her destination.
3. Q: What must an airline do when an individual with a disability
using a service animal seeks to travel?
A: The service animal must be permitted to accompany the passenger
with a disability on the flight. The animal must be allowed to
accompany the individual in any seat the individual uses, except where
the animal would obstruct an aisle or other area required by Federal
Aviation Administration safety rules to remain unobstructed for
emergency evacuation purposes. Service animals are typically trained to
curl up under seats, which should reduce the likelihood of such an
obstruction.
If such an obstruction would occur, the animal (and passenger, if
possible) should be relocated to some other place in the cabin where it
will not create such an obstruction. If there is no space in the cabin
that will accommodate the animal without causing such an obstruction,
then the animal is not permitted to travel in the cabin.
To accommodate service animals, airlines are not required to ask
other passengers to relinquish space that they would normally use. For
example, the passenger sitting next to an individual traveling with a
service animal would not need to allow the space under the seat in
front of him or her to be used to accommodate the animal.
4. Q: Is a service animal a pet?
A: A service animal is not a pet. A service animal is a working
animal that performs important functions for an individual with a
disability. The individual with a disability has been trained in the
use of the service animal and is responsible for all handling of the
animal. Consequently, carrier personnel and other passengers should not
attempt to pet, play with, direct, or in any way distract service
animals.
It is also important to realize that a pet is not a service animal.
Many people enjoy the companionship of animals. But this relationship
between an individual and an animal, standing alone, is not sufficient
to cause an animal to be regarded as a service animal.
5. Q: How do the requirements of the ACAA rule concerning service
animals relate to an airline's rules about carrying pets?
A: Airlines may have whatever policy they choose concerning pets,
consistent with U.S. Department of Agriculture animal welfare rules.
For example, they can refuse to carry any pets. They can carry pets
only in containers stowed in the cargo compartment. They can allow
small pets in carriers that fit under the
[[Page 56421]]
seat. Since service animals are not pets, the ACAA requires airlines to
modify their pets policies to allow service animals to accompany
persons with a disability in the cabin. When an animal is determined by
the airline not to be a service animal, then the airline would apply to
the animal the same policy that applies to pets.
In any situation in which the airline determines that an animal is
not a service animal, the airline must continue to give the passenger
the opportunity to travel without having the service animal in the
cabin. It is not appropriate to deny transportation to a passenger
because the passenger's animal is determined not to be a service
animal.
6. Q: How can I tell if an animal really is a service animal and not
just a pet?
A: Some, but not all, service animals, wear special collars or
harnesses. For example, guide dogs used by persons with vision
impairments typically wear harnesses that enhance their ability to
guide the visually impaired person. Some, but not all, service animals
are licensed and certified and have identification papers.
If airline employees are not certain that an animal is a service
animal, they may ask the person who has the animal if it is a service
animal required because of a disability. However, an individual who is
planning to travel by air is not necessarily going to be carrying
around documentation of his or her medical condition or disability.
Therefore, while such documentation may be requested as a means of
verifying that the animal is a service animal, it generally may not be
required as a condition of permitting an individual to travel with his
or her service animal. (See Question 9 for a situation in which
documentation may be required.) Likewise, while a number of states have
programs to certify service animals, airline employees may not insist
on proof of state certification before permitting the service animal to
accompany the person with a disability.
7. Q: What are ``credible'' verbal assurances that an animal is a
service animal?
A: In the absence of documentation or other obvious evidence that
an animal is a service animal, the only information available to
airline employees about the animal may be what a passenger says about
his or her disability and the use of the animal. Airline employees may
exercise their judgment concerning whether the passenger's statements
about the training and functions of the animal make it reasonable to
think that the animal is a service animal.
The factors discussed in this guidance (e.g., the nature of the
individual's disability, the training the animal is said to have
received, its ability to behave properly in public places, the
functions it is said to perform for the individual) can be used in
evaluating the credibility of the passenger's statements. An airline
complaints resolution official (CRO), whom the Department's ACAA rules
require to be available at each airport that the airline serves, is a
resource that passengers and airline employees can use to resolve
difficult cases.
8. Q: What about unusual or multiple animals?
A: Most people are familiar with the use of dogs as service
animals. On some occasions, however, individuals may ask to be
accompanied in an aircraft cabin by other kinds of animals. For
example, in a few cases, monkeys have been trained to provide services
to persons with severe mobility impairments. There have been cases of
passengers requesting to be accompanied by reptiles or rodents. In
addition, some passengers have asked to travel with more than one
animal at a time.
In evaluating these situations, airline employees should keep in
mind some of the important characteristics of service animals. Service
animals are trained to perform specific functions for an indivudal with
a disability, and they are trained to behave properly in public places.
Service animals are generally trained to work on a one-to-one basis
with an individual with a disability. Airline employees may inquire
about these matters and may use their judgment about whether, in light
of these factors, a particular animal is a service animal, as distinct
from a pet that a passenger wants to bring on board.
9. Q: How should airline employees respond to a claim that being
accompanied by an animal is necessary for the emotional well-being
of an individual with a mental or emotional disability?
A: Many people receive emotional support from being near an animal.
The assertion of a passenger that an animal remaining in his or her
company is a needed accommodation to a disability, however, may often
be difficult to verify or to distinguish from the situation of any
person who is fond of a pet. In addition, the animal may not, in such a
situation, perform any visible function. For these reasons, it is
reasonable for airline employees to request appropriate documentation
of the individual's disability and the medical or theraputic necessity
of the passnger's traveling with the animal. Moreover, the animal, like
any service animal, must be trained to behave properly in a public
setting.
10. Q: What about service animals that are not accompanying a
passenger with a disability?
Sometimes, an animal that is trained to work with people with
disabilities may travel by air but not be accompanied by an individual
with a disability for whom the animal performs service animal
functions. For example, a non-disabled handler may transport a
``therapy dog'' to a location, such as a rehabilitation center, where
it will perform services for individuals with physical or mental
disabilities.
The Department's Air Carrier Access Act regulation intended to
assist passengers with disabilities by ensuring that they can travel
with the service animals that perform functions for them. When a
service animal is not accompanying a passenger with a disability, the
rule's rationale for permitting the animal to travel in the cabin does
not apply. While the animal may be traveling to a location where it
will perform valuable services to other people, it would be subject to
the airline's general policies with respect to the carriage of animals.
11. Q: What if an animal acts out of control?
A: Service animals are trained to behave properly in public
settings. For example, a properly trained service animal will remain at
its owner's feet. It does not run freely around an aircraft or 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 is one that performs an assistive
function for a passenger with a disability. However, airline personnel
should consider available means of mitigating the effect of an animal's
behavior that are acceptable to the individual with a disability (e.g.,
muzzling a dog that barks frequently) that would permit the animal to
travel in the cabin.
While an airline is not required to permit an animal to travel in
the cabin if it engages in disruptive behavior, or other behavior that
poses a direct threat to the health or safety of persons on the
aircraft, airline employees may not make assumptions about how a
[[Page 56422]]
particular animal is likely to behave based on past experience with
other animals. Each situation must be considered individually. Airline
employees may inquire, however, about whether a particular animal has
been trained to behave properly in a public setting.
12. Q: Can airlines charge a maintenance or cleaning fee for
customers who bring service animals onto aircraft?
A: No. The ACAA prohibits special charges, such as deposits or
surcharges, for accommodations required to be made to passengers'
disabilities. This is true even if such charges are routinely required
to transport pets.
However, an airline can charge passengers with disabilities if a
service animal causes damage, so long as it is the regular practice of
the airline to charge non-disabled passengers for the same types of
damages. For example, the airline can charge passengers with a
disability for the cost of repairing or cleaning seats damaged by a
service animal if it is the airline's policy to charge when non-
disabled passengers cause similar damage.
13. Q: Are airlines responsible for the animal while a person with
a disability is on the aircraft?
A. No. The care and supervision of a service animal is solely the
responsibility of its owner. The individual with a disability has been
trained in the use of the service animal and is responsible for all
handling of the animal. The airline is not required to provide care or
food or special facilities for the animal.
Regulatory Analyses and Notices
This is not a significant rule under Executive Order 12866. It is a
significant rule under the Department's Regulatory Policies and
Procedures. A regulatory evaluation that examines the projected costs
and impacts of the lift requirements in the rule has been placed in the
docket. Briefly, the Department estimates that equipment and
operational costs of the lift requirement (net present value over 20
years ) will range between $18.6 and $51.8 million. In terms of
benefits, the analysis suggests that an additional 450,000 trips to
mobility-impaired travelers could result from the availability of lift
devices, resulting in a net present value profit to carriers of $48
million over 20 years. There are, in addition, non-quantifiable
benefits (e.g., greater travel opportunities for passengers, greater
dignity in the boarding process). The airport accessibility provisions
of the rule are not projected to have significant costs.
We note that Federally-assisted airports have been subject to very
similar requirements under section 504 since the first publication of
49 CFR Part 27 in 1979. Airlines have been subject to very similar
requirements since the first publication of 14 CFR Part 382 in 1990.
New costs related to moving to ADA-based standards should not be great,
and are limited in any case by the readily achievable/program
accessibility provisions made applicable to airlines and airports,
respectively.
The Department certifies that this rule, if adopted, would not have
a significant economic effect on a substantial number of small
entities. There are not a substantial number of small air carriers
covered by this rule, particularly given the exclusion of ``problem
aircraft'' and aircraft with fewer than 19 seats from boarding
assistance requirement. These aircraft are heavily represented among
the smallest air carriers. The smallest airports are excluded from the
boarding assistance rule altogether; other small airports will have
costs reduced by the 4-year phase-in for them. For all airports,
terminal accessibility requirements are not expected to be costly. They
are very similar to existing requirements, and they include provisions
ensuring that unduly burdensome changes are not required. Consequently,
the Department does not anticipate a significant economic effect on
small airports.
The Department has determined that there would not be sufficient
Federalism impacts to warrant the preparation of a Federalism
Assessment.
List of Subjects in 14 CFR Part 382 and 49 CFR Part 27
Aviation, Handicapped.
Issued this 8th day of October, 1996, at Washington, D.C.
Federico Pena,
Secretary of Transportation.
For the reasons set forth in the preamble, the Department amends 14
CFR Part 382 and 49 CFR Part 27 as follows:
1. The authority citation for 14 CFR Part 382 is revised to read as
follows:
Authority: 49 U.S.C. 41702, 47105, and 41712.
2. In 14 CFR Part 382, including the title thereof, the word
``handicap'' is revised to read ``disability'' wherever it occurs. The
term ``handicapped individual'' is revised to read ``individual with a
disability'' wherever it occurs. The term ``handicapped individuals''
is revised to read ``individuals with a disability'' whenever it
occurs. The term ``qualified handicapped individual'' is revised to
read ``qualified individual with a disability'' wherever it occurs. The
term ``qualified handicapped individuals'' is revised to read
``qualified individuals with a disability'' wherever it occurs.
3. In 14 CFR Part 382, Sec. 382.23 is revised to read as follows:
Sec. 382.23 Airport facilities.
(a) This section applies to all terminal facilities and services
owned, leased, or operated on any basis by an air carrier at a
commercial service airport, including parking and ground transportation
facilities.
(b) Air carriers shall ensure that the terminal facilities and
services subject to this section shall be readily accessible to and
usable by individuals with disabilities, including individuals who use
wheelchairs. Air carriers shall be deemed to comply with this Air
Carrier Access Act obligation if they meet requirements applying to
places of public accommodation under Department of Justice (DOJ)
regulations implementing Title III of the Americans with Disabilities
Act (ADA).
(c) The carrier shall ensure that there is an accessible path
between the gate and the area from which aircraft are boarded.
(d) Systems of inter-terminal transportation, including, but not
limited to, shuttle vehicles and people movers, shall comply with
applicable requirements of the Department of Transportation's ADA rule.
(e) The Americans with Disabilities Act Accessibility Guidelines
(ADAAGs), including section 10.4 concerning airport facilities, shall
be the standard for accessibility under this section.
(f) Contracts or leases between carriers and airport operators
concerning the use of airport facilities shall set forth the respective
responsibilities of the parties for the provision of accessible
facilities and services to individuals with disabilities as required by
this part for carriers and applicable section 504 and ADA rules of the
Department of Transportation and Department of Justice for airport
operators.
4. In paragraph (a)(2) of Sec. 382.39 of 14 CFR Part 382, in the
first sentence thereof, the word ``suitable'' is added before the word
``devices'' and two sentences are added at the end of the paragraph
reading as follows.
Sec. 382.49 Provision of services and equipment.
* * * * *
(a) * * *
[[Page 56423]]
(2) * * * In no case shall carrier personnel be required to hand-
carry a passenger in order to provide boarding assistance (i.e.,
directly to pick 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). Requirements for providing boarding assistance
to commuter aircraft with fewer than 30 seats are found in Sec. 382.40.
* * * * *
Sec. 382.39 [Amended]
5. In Sec. 382.39 of 14 CFR Part 382, paragraph (a)(4) is removed.
6. A new Sec. 382.40 is added, to read as follows:
Sec. 382.40 Boarding assistance for small aircraft.
(a) Paragraphs (b) and (c) of this section apply to air carriers
conducting passenger operations with aircraft having 19-30 seat
capacity at airports with 10,000 or more annual enplanements.
(b) Carriers shall, in cooperation with the airports they serve,
provide boarding assistance to individuals with disabilities using
mechanical lifts, ramps, or other suitable devices that do not require
employees to lift or carry passengers up stairs.
(c) (1) Each carrier shall negotiate in good faith with the airport
operator at each airport concerning the acquisition and use of boarding
assistance devices. The carrier(s) and the airport operator shall, by
no later than September 2, 1997, sign a written agreement allocating
responsibility for meeting the boarding assistance requirements of this
section between or among the parties. The agreement shall be made
available, on request, to representatives of the Department of
Transportation.
(2) The agreement shall provide that all actions necessary to
ensure accessible boarding for passengers with disabilities are
completed as soon as practicable, but no later than December 2, 1998 at
large and medium commercial service hub airports (those with 1,200,000
or more annual enplanements); December 2, 1999 for small commercial
service hub airports (those with between 250,000 and 1,199,999 annual
enplanements); or December 4, 2000 for non-hub commercial service
primary airports (those with between 10,000 and 249,999 annual
enplanements) . All air carriers and airport operators involved are
jointly responsible for the timely and complete implementation of the
agreement.
(3) Under the agreement, carriers may require that passengers
wishing to receive boarding assistance requiring the use of a lift for
a flight using a 19-30 seat aircraft check in for the flight one hour
before the scheduled departure time for the flight. If the passenger
checks in after this time, the carrier shall nonetheless provide the
boarding assistance by lift if it can do so by making a reasonable
effort, without delaying the flight.
(4) Boarding assistance under the agreement is not required in the
following situations:
(i) Access to aircraft with a capacity of fewer than 19 or more
than 30 seats;
(ii) Access to float planes;
(iii) Access to the following 19-seat capacity aircraft models: the
Fairchild Metro, the Jetstream 31, and the Beech 1900 (C and D models);
(iv) Access to any other 19-seat aircraft model determined by the
Department of Transportation to be unsuitable for boarding assistance
by lift on the basis of a significant risk of serious damage to the
aircraft or the presence of internal barriers that preclude passengers
who use a boarding or aisle chair to reach a non-exit row seat.
(5) When boarding assistance is not required to be provided under
paragraph (c)(4) of this section, or cannot be provided as required by
paragraphs (b) and (c) of this section for reasons beyond the control
of the parties to the agreement (e.g., because of mechanical problems
with a lift), boarding assistance shall be provided by any available
means to which the passenger consents, except hand-carrying as defined
in Sec. 382.39(a)(2) of this part.
(6) The agreement shall ensure that all lifts and other
accessibility equipment are maintained in proper working condition.
(d)(1) The training of carrier personnel required by Sec. 382.61
shall include, for those personnel involved in providing boarding
assistance, training to proficiency in the use of the boarding
assistance equipment used by the carrier and appropriate boarding
assistance procedures that safeguard the safety and dignity of
passengers.
(2) Carriers who do not operate aircraft with more than a 19-seat
capacity shall ensure that those personnel involved in providing
boarding assistance are trained to proficiency in the use of the
boarding assistance equipment used by the carrier and appropriate
boarding assistance procedures that safeguard the safety and dignity of
passengers.
7. In Sec. 382.45 of 14 CFR Part 382, paragraph (a)(2) is revised
to read as follows:
Sec. 382.45 Passenger information.
(a) * * *
(2) Any limitations on the ability of the aircraft to accommodate
qualified individuals with disabilities, including limitations on the
availability of boarding assistance to the aircraft, with respect to
the departure and destination points and any intermediate stops. The
carrier shall 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.
* * * * *
8. In Sec. 382.51 of 14 CFR Part 382, paragraph (b) is revised to
read as follows:
Sec. 382.51 Communicable diseases.
* * * * *
(b)(1) The carrier may take the actions listed in paragraph (a) of
this section with respect to an individual who has a communicable
disease or infection only if the individual's condition poses a direct
threat to the health or safety of others.
(2) For purposes of this section, a 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.
(3) In determining whether an individual poses a direct threat to
the health or safety of others, a carrier must make an individualized
assessment, based on reasonable judgment that relies on current medical
knowledge or on the best available objective evidence, to ascertain:
the nature, duration, and severity of the risk; that the potential harm
to the health and safety of others will actually occur; and whether
reasonable modifications of policies, practices, or procedures will
mitigate the risk.
(4) In taking actions authorized under this paragraph, carriers
shall select the alternative, consistent with the safety and health of
other persons, that is least restrictive from the point of view of the
passenger with the communicable disease. For example, the carrier shall
not refuse to provide transportation to an individual if provision of a
medical certificate or reasonable modifications to practices, policies,
or procedures will mitigate the risk of communication of the disease to
others to an extent that would permit the individual to travel.
(5) If an action authorized under this paragraph results in the
postponement of a passenger's travel, the carrier shall 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
[[Page 56424]]
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.
(6) Upon the passenger's request, the carrier shall provide to the
passenger a written explanation of any action taken under this
paragraph within 10 days of the request.
* * * * *
9. The authority citation for 49 CFR Part 27 is revised to read as
follows:
Authority: Sec. 504 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 794); sec. 16 (a) and (d) of the Federal Transit
Act of 1964, as amended (49 U.S.C. 5310 (a) and (f); sec. 165(b) of
the Federal-Aid Highway Act of 1973, as amended (23 U.S.C. 142 nt.).
10. In 49 CFR Part 27, including the title thereof, the word
``handicap'' is revised to read ``disability'' wherever it occurs. The
term ``handicapped individual'' is revised to read ``individual with a
disability'' wherever it occurs. The term ``handicapped individuals''
is revised to read ``individuals with a disability'' wherever it
occurs. The term ``qualified handicapped individuals'' is revised to
read ``qualified individuals with a disability'' wherever it occurs.
11. In Sec. 27.5 of 49 CFR Part 27, the definition of ``Air Carrier
Airport'' is removed, and a new definition of ``Commercial Service
Airport'' is added in the appropriate alphabetical placement, to read
as follows:
Sec. 27.5 Definitions.
* * * * *
Commercial service airport means an airport that is defined as a
commercial service airport for purposes of the Federal Aviation
Administration's Airport Improvement Program and that enplanes annually
2500 or more passengers and receives scheduled passenger service of
aircraft.
* * * * *
12. Section 27.71 of 49 CFR Part 27 is revised to read as follows:
Sec. 27.71 Airport facilities.
(a) This section applies to all terminal facilities and services
owned, leased, or operated on any basis by a recipient of DOT financial
assistance at a commercial service airport, including parking and
ground transportation facilities.
(b) Airport operators shall ensure that the terminal facilities and
services subject to this section shall be readily accessible to and
usable by individuals with disabilities, including individuals who use
wheelchairs. Airport operators shall be deemed to comply with this
section 504 obligation if they meet requirements applying to state and
local government programs and facilities under Department of Justice
(DOJ) regulations implementing Title II of the Americans with
Disabilities Act (ADA).
(c) The airport shall ensure that there is an accessible path
between the gate and the area from which aircraft are boarded.
(d) Systems of inter-terminal transportation, including, but not
limited to, shuttle vehicles and people movers, shall comply with
applicable requirements of the Department of Transportation's ADA
rules.
(e) The Americans with Disabilities Act Accessibility Guidelines
(ADAAGs), including section 10.4 concerning airport facilities, shall
be the standard for accessibility under this section.
(f) Contracts or leases between carriers and airport operators
concerning the use of airport facilities shall set forth the respective
responsibilities of the parties for the provision of accessible
facilities and services to individuals with disabilities as required by
this part and applicable ADA rules of the Department of Transportation
and Department of Justice for airport operators and applicable Air
Carrier Access Act rules (49 CFR part 382) for carriers.
(g) If an airport operator who receives Federal financial
assistance for an existing airport facility has not already done so,
the recipient shall submit a transition plan meeting the requirements
of Sec. 27.65(d) of this part to the FAA no later than March 3, 1997.
13. A new Sec. 27.72 is added to 49 CFR Part 27, to read as
follows:
Sec. 27.72 Boarding assistance for small aircraft.
(a) Paragraphs (b) and (c) of this section apply to airports with
10,000 or more annual enplanements.
(b) Airports shall, in cooperation with carriers serving the
airports, provide boarding assistance to individuals with disabilities
using mechanical lifts, ramps, or other devices that do not require
employees to lift or carry passengers up stairs.
(c)(1) Each airport operator shall negotiate in good faith with
each carrier serving the airport concerning the acquisition and use of
boarding assistance devices. The airport operator and the carrier(s)
shall, by no later than September 2, 1997, sign a written agreement
allocating responsibility for meeting the boarding assistance
requirements of this section between or among the parties. The
agreement shall be made available, on request, to representatives of
the Department of Transportation.
(2) The agreement shall provide that all actions necessary to
ensure accessible boarding for passengers with disabilities are
completed as soon as practicable, but no later than December 2, 1998
rule at large and medium commercial service hub airports (those with
1,200,000 or more annual enplanements); December 2, 1999 rule for small
commercial service hub airports (those with between 250,000 and
1,199,999 annual enplanements); or December 4, 2000 rule for non-hub
commercial service primary airports (those with between 10,000 and
249,999 annual enplanements). All air carriers and airport operators
involved are jointly responsible for the timely and complete
implementation of the agreement.
(3) Boarding assistance under the agreement is not required in the
following situations:
(i) Access to aircraft with a capacity of fewer than 19 or more
than 30 seats;
(ii) Access to float planes;
(iii) Access to the following 19-seat capacity aircraft models: the
Fairchild Metro, the Jetstream 31, and the Beech 1900 (C and D models);
(iv) Access to any other 19-seat aircraft model determined by the
Department of Transportation to be unsuitable for boarding assistance
by lift on the basis of a significant risk of serious damage to the
aircraft or the presence of internal barriers that preclude passengers
who use a boarding or aisle chair to reach a non-exit row seat.
(4) When boarding assistance is not required to be provided under
paragraph (c)(4) of this section, or cannot be provided as required by
paragraphs (b) and (c) of this section for reasons beyond the control
of the parties to the agreement (e.g., because of mechanical problems
with a lift), boarding assistance shall be provided by any available
means to which the passenger consents, except hand-carrying as defined
in Sec. 382.39(a)(2) of this part.
(5) The agreement shall ensure that all lifts and other
accessibility equipment are maintained in proper working condition.
(d) In the event that airport personnel are involved in providing
boarding assistance, the airport shall ensure that they are trained to
proficiency in the use of the boarding assistance equipment used at the
airport and appropriate boarding assistance procedures that safeguard
the safety and dignity of passengers.
14. A new Sec. 27.77 is added to 49 CFR Part 27, to read as
follows:
[[Page 56425]]
Sec. 27.77 Recipients of Essential Air Service subsidies.
Any air carrier receiving Federal financial assistance from the
Department of Transportation under the Essential Air Service program
shall, as a condition of receiving such assistance, comply with
applicable requirements of this part and applicable section 504 and
ACAA rules of the Department of Transportation.
[FR Doc. 96-28084 Filed 10-31-96; 8:45 am]
BILLING CODE 4910-62-P
