[Federal Register Volume 63, Number 42 (Wednesday, March 4, 1998)]
[Rules and Regulations]
[Pages 10528-10537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5525]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 382
[Docket OST-96-1880]
RIN 2105-AC28
Nondiscrimination on the Basis of Disability in Air Travel
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule.
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SUMMARY: The Department is amending its rules implementing the Air
Carrier Access Act of 1986. The amendments establish procedures for
providing seating accommodations for individuals with disabilities,
clarify the general nondiscrimination obligations of carriers, and
provide for the in-cabin stowage of collapsible electric wheelchairs
that can be stowed consistent with carry-on baggage requirements.
EFFECTIVE DATE: This rule is effective April 3, 1998.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 400 7th Street, SW., Room 10424, Washington, DC, 20590.
(202) 366-9306 (voice); (202) 755-7687 (TDD).
[[Page 10529]]
SUPPLEMENTARY INFORMATION:
Background
On November 1, 1996, the Department published a notice of proposed
rulemaking (NPRM) asking for comment on a number of issues. The NPRM
proposed to require seating accommodations for certain individuals with
disabilities, to clarify the general nondiscrimination obligations of
carriers, and to provide for the in-cabin carriage of electric
wheelchairs that could be accommodated consistent with carry-on baggage
rules. The Department is today issuing final rules based on these
proposals, with modifications responsive to comments we received.
The preamble to the November 1, 1996, NPRM also asked for public
comment on two matters concerning which we had received suggestions or
petitions from members of the public. These were additional
accommodations for persons with hearing impairments (e.g., captioning
of in-flight movies, on-board TDDs where air phones are made available
to other passengers, better message service in gate areas) and the
provision of a smoke-free accessible path through airports for persons
with respiratory disabilities.
The Department received a number of comments on the issue of
accommodations for hearing impairments. We are continuing to consider
whether to propose requirements for accommodations of this type, but we
are deferring decision on this matter until a later time.
The Department received a large number of comments concerning the
petitions for accessible paths through airports for persons with
respiratory disabilities, many of which went beyond the issues directly
raised by the petitions, reflecting the ongoing public debate about
smoking by taking broad anti-smoking or ``smokers' rights'' positions.
(Some of the comments from anti-smoking groups opposed regulation in
this area, on the view that existing law already requires action by
airports to ban or limit smoking.) While continuing to consider the
issue the petitions raised, the Department is deferring a decision on
whether to propose rules on this subject until a later time. In this
connection, we note that a number of airports are taking action on the
local level to limit the passengers' exposure to ambient smoke.
General Nondiscrimination Obligation
NPRM Proposal
The NPRM proposed to add language making explicit the existing
obligation of carriers to provide accommodations to passengers with
disabilities and remove barriers, applying the standards of section 504
of the Rehabilitation Act and Title III of the Americans with
Disabilities Act (ADA). The purpose of this addition was to clarify
that carriers must modify policies, practices, and facilities where
needed to provide service to passengers with disabilities, even if a
particular accommodation was not specifically mandated elsewhere in
part 382.
Comments and DOT Response
Carriers and disability groups found themselves in somewhat ironic
agreement that the reference in the proposal to ADA standards should be
removed and that the provision should refer only to the standards of
section 504. Disability groups took this position on the basis of their
view that section 504 imposes a more stringent standard on carriers
than Title III of the ADA. Carriers took this position on the basis of
their view that section 504 imposes a less stringent standard on
carriers than Title III of the ADA. Both found the dual reference to
ADA and 504 standards to be vague and confusing.
As the Department noted in the preamble to the NPRM, the history of
the ACAA clearly shows that Congress enacted the statute to fill a gap
in nondiscrimination coverage left by a Supreme Court decision that
said that section 504 of the Rehabilitation Act did not apply to air
carriers, since they do not (with the exception of participants in the
Essential Air Service program) receive Federal financial assistance.
The intent of the statute was to achieve the same protection from
discrimination for airline passengers that section 504 provides persons
affected by Federally-assisted programs. For a summary of the history
of the Act, see the preamble to the Department's 1990 final ACAA rule
(55 FR 8009; March 6, 1990).
Given this history, and the common concerns of disability groups
and carriers that the ADA reference in the NPRM was inappropriate and
confusing, the Department is changing the text of the section in the
final rule. The final rule version tells carriers, in addition to
following the other specific provisions of Part 382, that they must
modify policies, practices, or facilities as needed to ensure
nondiscrimination, consistent with the standards of section 504 of the
Rehabilitation Act, as amended.
One carrier comment proposed an original list interpretation of the
ACAA, under which only those accommodations that would have been
required under section 504 in 1986 could ever be required under the
ACAA. The Department is not persuaded that this interpretation is
sound. It would, among other things, contravene the intent of Congress
that airline passengers have the same protections that people with
disabilities have in other situations under section 504. In
interpreting what rights airline passengers have today, it is far more
reasonable to look at what rights persons with disabilities have under
section 504 today, rather than attempting a historical speculation
about what rights they might have had in previous decades.
In any case, the nondiscrimination provisions of the DOT and
Department of Justice section 504 regulations, as they read in 1986 and
as they read today, clearly support the Department's amendment to
Sec. 382.7. They impose an obligation on covered entities to modify
policies, practices, and facilities to ensure that persons with
disabilities receive services on a nondiscriminatory basis. A carrier's
argument that a requirement to modify polices, practices and facilities
to ensure nondiscrimination is impermissibly vague is without merit.
Like section 504 itself, the statutory language of the ACAA prohibits
discrimination in general terms. There is no basis for asserting that
the only modifications a carrier could ever be required to make are
those specifically enumerated in the existing sections of the rule.
From the beginning of section 504 rules in the 1970s, these rules have
always imposed general, as well as specific, nondiscrimination
obligations on covered entities.
We agree with the comments of both carriers and disability groups
that, under section 504, carriers are not required to make
modifications that would constitute an undue burden or fundamentally
alter the nature of the carriers' service. As in section 504 and ADA
practice generally, what constitutes an undue burden or a fundamental
alteration is a judgment decision that must be made on the facts of a
specific situation. The ACAA clearly provides that carriers not make
modifications that would violate FAA safety rules.
This approach does not represent a departure from existing ACAA
interpretation or practice. Indeed, the Department has consistently
operated on the basis of this understanding of the law. For example,
the issue of food allergies is not specifically mentioned in the text
of Part 382. On several occasions, however, the Department has learned
of situations in which passengers with severe allergies to peanuts have
requested
[[Page 10530]]
accommodations from airlines. The Department has worked informally with
airlines and passengers to arrange appropriate modifications to the
airlines' normal food service practices on specific flights. For
example, in some cases, airlines have agreed to serve an alternate
snack (e.g., pretzels rather than peanuts) to passengers seated near
the allergic passenger. This is an example of a modification to normal
practices that is not unduly burdensome. On the other hand, some
allergic passengers have requested much more sweeping actions by
carriers (e.g., special cleaning of an aircraft to ensure that peanut
residue does not remain on board; screening other passengers to ensure
that they do not bring their own peanut products on board). We have
regarded these requested accommodations as creating undue burdens, and
we have consequently not requested carriers to undertake such steps. In
assessing any requested accommodation, passengers, airlines, and the
Department must exercise judgment on a case-by-case basis concerning
what it is reasonable to expect and what constitutes an undue burden.
Comments from disability group commenters mentioned a number of
examples of types of modification they thought would be appropriate
under this provision. These included chest straps for some mobility-
impaired passengers to provide greater lateral stability in aircraft
seats, allowing a passenger to board last to reduce pain from sitting
for long periods, allowing wheelchair users to check in at the gate
rather than at the airport entrance or ticket counter, and allowing
people who cannot carry luggage to have luggage carts in airport
concourses. These requests--whatever their merits in a particular fact
situation--illustrate the point that a regulation can never possibly
enumerate all possible specific situations potentially calling for
accommodations to achieve nondiscrimination.
This provision is not intended to replace the rulemaking process
with respect to across-the-board changes in carrier policies and
practices. For example, the Department does not intend, in implementing
and enforcing this provision, to address industry-wide issues like on-
board oxygen use by passengers, additional accommodations for
passengers with hearing impairments, or smoking in airports. The
provision is intended to deal with accommodations that take the form of
case-by-case exceptions to otherwise reasonable general policies or
practices of carriers.
The Department wants to take this opportunity to clarify an
apparent misunderstanding that a disability organization had concerning
the effect of the November 1, 1996, amendment the Department made to
the airport facility standards in 14 CFR Part 382 and 49 CFR Part 27
(61 FR 56420, 56422). The group's concern was that the amendments
substantively weakened the requirements for airlines and airports to
meet accessibility standards. The amendments were not intended to do
so, and they in fact did not do so.
As noted in the preamble to the November 1, 1996, final rule (61 FR
56416-18), the coverage of the ADA, section 504, and the ACAA at
airports had been overlapping and confusing. The purpose of the
amendments was to harmonize these authorities, simplifying issues of
statutory and regulatory coverage without affecting substantive
requirements. The amendments did this by saying that airlines and
airports meet their ACAA and section 504 requirements if they meet,
respectively, the standards of Title III and Title II of the ADA.
In doing so, the Department knew that section 10.4 of the Americans
with Disabilities Accessibility Guidelines (ADAAG) incorporated many of
the specific accessibility requirements of the pre-1996 ACAA and
section 504 requirements for airport facilities (56 FR 45714; September
6, 1991). The amendments refer specifically to these provisions (see 49
CFR 27.71(e); 14 CFR 382.23(e)). Requirements not specifically
referenced in the ADAAG provision are retained in the amended ACAA and
section 504 provisions (14 CFR 382.23 (c) and (d) and 49 CFR 27.71 (c)
and (d), which concern accessible paths of travel through airports and
inter-terminal transportation systems, respectively). These provisions
ensure that nothing is lost between the pre-amended and amended ACAA
and 504 sections.
With respect to the issue of modifications for existing facilities,
section 504 has always required recipients to modify policies,
practices, and facilities to ensure nondiscrimination. Section 504 has
never required recipients to incur undue burdens to make these
modifications. The ``program accessibility'' requirements of the
Department of Justice ADA Title II regulation (28 CFR 35.150) require
no less than section 504 with respect to facility accessibility. Using
the program accessibility standard does not in any way relieve
recipients of the obligations they had under section 504 and the pre-
amended 49 CFR part 27 to modify facilities for accessibility. Indeed,
it is difficult to imagine circumstances, in the context of airport
facilities, in which program accessibility could be fully achieved
without facilities being made accessible.
The pre-amended version of the ACAA airport facilities provision
required facility modifications to be made by carriers as of April 5,
1993 (former 14 CFR 382.23(d)). By the time of the amendment, any
existing facility that had not been modified for accessibility had been
out of compliance for approximately 3\1/2\ years. Nothing in the
amendment to Sec. 382.83 is intended to relieve carriers of that pre-
existing compliance obligation. Obviously, any new facility
construction or alterations have had to be accessible since the ACAA
rules first went into effect, which the amendment does not change.
Seating Accommodations
NPRM Proposal
The NPRM proposed that carriers make available to passengers with
disabilities four types of seating accommodations. These included seats
in rows with movable aisle armrests for wheelchair users, seats for a
personal care attendant (PCA) next to a disabled passenger needing the
PCA's services during the flight, seats in either bulkhead or non-
bulkhead rows for persons traveling with service animals, and seats
providing additional legroom for persons with fused or immobilized
legs. While a carrier might have to reassign other passengers to make
these accommodations, no one would be ``bumped'' from a flight and the
carrier would continue to follow all FAA safety rules, including the
exit row seating rule. The carrier could establish up to a 48-hour
advance notice requirement for someone requesting a seating
accommodation.
Comments
Disability community commenters unanimously supported the proposal.
Many of these comments said that even if some other passengers had
their seats changed as a result, their inconvenience did not outweigh
the need of passengers with disabilities for seats that they could
readily access and use. These commenters argued that making seating
accommodations was a reasonable modification of policies and practices
that did not impose an undue burden on carriers or fundamentally alter
the nature of the airlines' services.
There were some modifications that disability community commenters
requested, however. Generally, they opposed the advance notice
provision,
[[Page 10531]]
saying it was discriminatory and worked a hardship of passengers who
had to make short-notice travel plans. They also objected to any
requirement for documenting a disability, saying that this was
burdensome for passengers. Some of these comments also suggested that,
on airlines that do not assign seats in advance, carriers should be
required to let people needing seating accommodations preboard before
other passengers (e.g., families with small children) who also can
preboard. In all preboardings, commenters said, carriers should give
people with disabilities enough time to get settled in their seats
before other passengers board. (It should be noted that some carriers
are reported to be cutting back or eliminating traditional preboarding
procedures. Since some provisions of the ACAA rule, such as the
requirement for on-board stowage of wheelchairs, are premised on the
availability of preboarding to passengers with disabilities, this
change in industry practice may have implications for the accessibility
of air travel to disabled passengers. The Department intends to watch
developments in the preboarding policy area to determine if future
rulemaking may be needed.)
Disability community commenters said that the four categories of
people who the NPRM proposed as eligible for seating accommodations
were too narrow. There would always be individual cases that did not
fit into these or any set of categories, they said, so the rule should
be structured in an ``including but not limited to * * *'' fashion.
Examples of other disabilities cited as requiring accommodations
included a person with a painful disability that made it necessary for
her to minimize being jostled by other people (who thereby needed a
window seat), someone with multiple sclerosis who could walk a few
steps but needed a seat near the entrance to the aircraft, and someone
with bladder or bowel control problems who needed an aisle seat near a
lavatory.
Two commenters suggested that the movable aisle armrest row
accommodation be limited to persons who need an aisle chair to board or
who cannot transfer over a fixed armrest (as distinct from persons who
could walk a few steps to a seat). Other commenters suggested that
reservation systems ``block'' seats needed for accommodations so that
disabled passengers needs could be met without having to displace other
passengers. Alternatively, there could be designated ``priority'' seats
for persons with disabilities, from which other passengers would move
if a seating accommodation became necessary.
Carriers objected to the proposal on a number of grounds. The one
they identified as the most significant had to do with the limitations
of their computer reservation systems. These systems, the carriers
said, could not retrieve the names of passengers by reference to seat
assignments. That is, if a disabled passenger were assigned seat 6C as
an accommodation, the carrier would not be able to determine who had
previously been assigned the seat so as to be able to notify that
passenger of a changed assignment. To provide this notice and avoid an
unpleasant surprise, the carrier would either have to modify its
computer system or comb through individual passenger records, both of
which would be very expensive and unduly burdensome.
In any case, carriers said, it was unfair to impose inconvenience
on other passengers who had expectations of sitting in their original
seat assignment, especially since some of those had good reasons (e.g.,
they were tall, traveling with infants) for wanting a particular seat.
This would create confusion, make the other passengers unhappy,
increase denied boarding compensation claims and flight delays, and
distract flight attendants from safety duties. If passengers requesting
accommodations were not really disabled, it would add to this
discontent. One carrier noted that its policy was to ask other
passengers to move in situations where an expected accommodation for a
disabled passenger did not materialize (e.g., because the equipment for
a flight changed).
The proposal would make carriers discriminate against those
disabled passengers who were not in one of the four categories and
force carriers to ask inappropriate questions of disabled passengers,
carrier comments added. Carriers who do not assign seats in advance
requested that the NPRM preamble statement that their obligations could
be met by their preboarding process be included in the final regulatory
text (a comment seconded by a disability group).
Finally, carriers made a legal argument against the proposal,
saying that it required ``preferential'' treatment and ``affirmative
accommodation'' for disabled passengers, while the Department's
authority was limited to ensuring nondiscrimination. The carriers
already practiced nondiscrimination, they said, by treating all
passengers the same through their ``first-come/first-served'' seat
assignment policy. Requiring a change in this policy, especially as
applied to seats withheld from the general passenger population for
frequent fliers' benefit, would be a fundamental alteration of the
carrier's services, the comments said.
Carriers noted that they already block seats in the reservation
process, including some bulkhead and movable aisle armrest rows, for
people with disabilities. One carrier said that it holds some of the
seats for passengers with disabilities who may not have made their
needs known until check-in.
DOT Response
With some substantive modifications in response to comments, the
Department is adopting the NPRM proposal. Requiring seating
accommodations is necessary to ensure nondiscrimination, is consistent
with the language and intent of the ACAA, and does not create an undue
burden or fundamentally alter the nature of airline services.
The Department strongly disagrees with carrier comments'
characterization of a seating accommodations requirement as
preferential treatment that exceeds the Department's authority under
the ACAA. This requirement simply compels nondiscriminatory seating
policies. It tells airlines they must provide to passengers with
disabilities exactly what they provide to other passengers--a seat the
passenger can readily access and use. A facially neutral policy that
assigns seats to non-disabled passengers that they can readily access
and use but fails to ensure that disabled passengers are assigned seats
they can readily access and use is discriminatory. Comments to the
NPRM, as well as the Department's experience in listening to consumer
concerns about inability or unwillingness of airlines to provide seats
that individuals can readily access and use, persuade us that this
accommodation must be required if the intent of Congress in mandating
nondiscrimination in air travel is to be properly carried out.
Under the ACAA, as with section 504, the Department has authority
to require regulated parties to take steps to ensure nondiscrimination,
as long as these steps do not create an undue burden or fundamentally
alter the nature of an entity's program. This requirement is consistent
with these provisions of disability law.
Airlines regularly provide their customers seats they can access
and use. The seating accommodation requirement does not fundamentally
alter the nature of this service. The rule explicitly provides that no
one will be bumped from a flight to make a seating accommodation and
that the airline will
[[Page 10532]]
continue to follow all applicable FAA safety rules. Contrary to carrier
comments, it is hard to imagine denied boarding compensation claims
increasing under a rule which explicitly provides that no one will be
denied boarding on a flight to accommodate a disabled passenger.
Carriers who assign seats in advance may continue to do so. Carriers
who do not assign seats in advance may continue their practice. The
provision does not require carriers to provide service to classes of
passengers they do not now serve (e.g., passengers who have to travel
on stretchers). Even carriers who hold back some seats for the benefit
of frequent fliers (something that it is difficult to construe
reasonably as fundamental to the nature of air transportation) can
continue to do so, as long as they make exceptions when necessary to
accommodate a passenger with a disability.
Particularly given the modifications the Department is making from
the NPRM (see discussion below), the final rule does not impose undue
burdens. In this connection, the Department observes that the ACAA
permits the Department to impose some burdens on carriers. What the
Department cannot do is impose ``undue'' burdens. The use of this term
in disability law necessarily implies that some burdens are ``due,'' as
a consequence of the obligation of regulated parties to ensure
nondiscrimination. The Department can legally impose these ``due
burdens.'' The primary ``undue burden'' alleged in carrier comments is
the difficulty carriers cite with their computer systems. The
Department accepts the carriers' representations about the limitations
of their computer systems. However, these problems do not result in an
undue burden in the context of the final rule.
This is true because the airlines do not have to do what they say
their computer systems will not allow them to do. The NPRM did not
propose, and the final rule does not require, that airlines retrieve
the names of passengers previously assigned a seat and individually
inform those passengers that their seat assignment has been changed.
The structure of the final rule makes such a mechanism unnecessary,
from a customer relations as well as a legal standpoint.
The first method carriers can use, suggested by both carrier and
disability community comments, is for carriers to ``block'' an adequate
number of seats usable for seating accommodations (e.g., seats in
bulkhead rows, seats in rows with movable aisle armrests, some pairs of
seats) from advance assignment until 24 hours before scheduled
departure time. By an ``adequate'' number of seats, we mean enough
seats to handle a reasonably expectable demand for seating
accommodations of various kinds. It might not be necessary, for
example, to block all aisles with movable armrests or, in an aircraft
with multiple bulkhead areas, all bulkhead rows. Nor would it
necessarily be essential to block all the seats in such rows. Carriers
who use this approach should be aware, however, that they will need to
block some pairs of seats, since someone who is eligible to receive an
accommodation (e.g., a wheelchair user with respect to a row with a
movable aisle armrest) may also be traveling with a personal care
attendant. We anticipate that the burden of implementing this approach
would be light, given that carriers already block seats for disability
and other purposes.
If a disabled passenger specified in the rule calls the carrier
prior to 24 hours before the scheduled departure time, the carrier will
assign the person one of these seats. This would be done even if the
seat is also one that is otherwise held for use of frequent fliers.
Because these seats would never have been assigned to another
passenger, reassignment of the seat will not be an issue, and no other
passenger will ever have to be displaced from a previously assigned
seat. If the disabled passenger makes his or her request later than 24
hours before scheduled departure, the carrier would still try to meet
the passenger's seating accommodation need, but would not have to
change another passenger's seat assignment to do so.
There could be rare situations in which all the seats blocked for a
particular sort of accommodation are filled with individuals with
disabilities and, subsequently but prior to 24 hours before departure,
an additional passenger with a disability requests the same kind of
accommodation. In this case, the carrier would not be required to
change a seat assignment that had already been given to another
disabled passenger. However, the carrier would have meet the disabled
passenger's request by assigning him or her to a seat that provided the
needed accommodation, was not a seat blocked for passengers listed in
paragraph (a), and was still unassigned, even if that seat was
otherwise blocked for frequent fliers or another category of passenger.
Under the second approach available to carriers, suggested by
disability community comments and somewhat analogous practices in other
modes of transportation, carriers would designate an adequate number of
seats as ``priority seats'' for seating accommodations for disabled
passengers. Carriers would provide notice that passengers who are
assigned these seats are subject to being reassigned to another seat if
necessary to accommodate a passenger with a disability.
In the Department's view, the best way to provide this information
would be through notice to the passenger at the time he or she made a
seat selection (e.g., by the airline reservationist or travel agent,
via a screen notice when the passenger is making an on-line seat
assignment, or via a recording when the passenger makes a seat
selection through an automated telephone system). Other methods are
acceptable, however, such as ticket notices, gate announcements,
counter signs, seatback cards, notices in advertisements, timetables,
web sites, or frequent flier literature. Whatever system a carrier
chooses to provide this information, the Department believes it would
be useful to place a sticker or decal (e.g., on the armrest for the
seat or the tray table facing the seat) with an accessibility symbol
and words like ``Priority Seat for Passengers with Disabilities,''
which would help inform passengers about this requirement.
By receiving this information, passengers would know that if they
sat in a priority seat, they could be moved to another seat if a
disabled passenger needed that seat for a seating accommodation.
Because passengers would be on notice that sitting in a priority seat
might occasionally result in having to change seats, passengers who had
to move would not be surprised or have grounds for feeling that their
legitimate expectations had been infringed.
In order to give carriers time to make any necessary adjustments,
carriers could request that passengers with disabilities wishing to
make use of designated priority seats must check in and make their
request an hour before departure. If a passenger failed to do so, the
airline would still have to try to accommodate the person's request,
but would not have to reassign another passenger's seat to do so.
As in the case of carriers who use the ``seat blocking'' mechanism,
there could be rare situations in which all the designated priority
seats are filled with individuals with disabilities, and subsequently
an additional passenger with a disability requests the same kind of
accommodation. In this case, the carrier would not be required to
change a seat assignment that had already been given to another
disabled passenger. However, the carrier would have meet the disabled
passenger's request by
[[Page 10533]]
assigning him or her to a seat that provided the needed accommodation,
was not a designated priority seat, and was still unassigned, even if
that seat was otherwise blocked for frequent fliers or another category
of passenger.
The Department believes that, to implement these requirements
appropriately, carriers would have to block or give priority
designation to seats in all classes of service. This does not mean,
however, that a passenger with a disability would have to be given an
upgrade (e.g., provide a seat in first class to a purchaser of a coach
ticket) in order to be accommodated.
To provide greater flexibility, the rule permits carriers to devise
different approaches to achieving the objectives of this section. To
implement a different approach, a carrier would have to obtain the
written concurrence of the Office of the Secretary, DOT. Carriers
interested in getting approval of a different approach should contact
the Aviation Consumer Protection Division of the Office of the
Assistant General for Aviation Enforcement and Proceedings in the DOT
Office of General Counsel (202-366-5957).
The foregoing discussion has focused on carriers who assign seats
in advance. Carriers who do not assign seats in advance would, as the
NPRM suggested, meet the requirements of this section through the
preboarding process. As requested, this provision has been made part of
the final rule text. In response to a disability community comment,
these carriers would permit persons needing seat accommodations under
this section to preboard before other passengers, including other
passengers who preboard. Regardless of whether the carrier assigns
seats in advance or not, the rule never requires a carrier to choose
between disabled persons who need the same seat accommodation.
The Department believes that these approaches minimize both the
potential burdens on carriers and inconvenience to other passengers. To
the extent that some inconvenience remains, the Department believes
that the inconvenience to a non-disabled passenger who moves from one
seat he or she can readily access and use to another such seat is far
outweighed by the nondiscrimination-related necessity of ensuring that
a disabled passenger can have a seat he or she can readily access and
use. The Department has a statutory responsibility to ensure
nondiscrimination on the basis of disability; there is no parallel
mandate to preclude inconvenience to other passengers who may prefer
some of the same seats that are needed to accommodate a disabled
passenger.
As noted above, the rule specifically provides that no other
passenger would ever be bumped off a flight to make room for an
accommodation needed by a passenger with a disability. For example,
suppose that all seats but one have confirmed reservations for a
particular flight. A disabled passenger then calls to make a
reservation for himself and his PCA. Someone who already had a
confirmed reservation would not lose that reservation to make room for
the PCA. This does not mean, however, that a carrier could not take
action against a passenger who had a seat on the aircraft (e.g., a
designated priority seat) who refused to move to another seat to
accommodate a disabled passenger when the carrier requested it.
The Department is also modifying the types of situations in which
airlines are required to provide seating accommodations. One important
clarification is that carriers are required to provide seating
accommodations only to passengers who self-identify as needing one of
the specified accommodations. It is not unreasonable to ask passengers
seeking a particular accommodation to take the initiative to specify
the nature of their need for it. This will also mitigate the problem
cited by carriers of having their personnel asking awkward or
inappropriate questions about passengers' disabilities.
Paragraph (a) of the new rule sets forth four situations in which
seat assignment accommodations are required. As suggested by
commenters, the first accommodation (seating in a row with a movable
aisle armrest) is clarified to apply to people who board the aircraft
using an aisle chair and who cannot readily transfer over a fixed
armrest. The third accommodation--a seat in either a bulkhead or non-
bulkhead row for someone traveling with a service animal--is unchanged
from the NPRM. It was not the subject of any specific comment. Some
passengers with service animals prefer bulkhead rows, while others do
not. The point of this accommodation is to allow the passenger to
choose which type of row he or she and the service animal will occupy.
The second accommodation has been expanded in response to comments.
In the NPRM, it was limited to persons traveling with a personal care
attendant. Commenters pointed out that a deaf person traveling with an
interpreter was in a similar situation. A blind person traveling with a
reader also may need to have the person next to him or her during the
flight. Unless a blind or deaf person were also eligible for a specific
seat location as an accommodation--for example, because the person was
a wheelchair user or was traveling with a service animal--the pair of
seats could be anywhere in the aircraft.
In each case, the accommodation--a seat for the assistant next to
the individual with a disability--is required to be provided only if
the assistant is actually going to provide services to the disabled
passenger during the course of the flight. Someone who is traveling to
the same destination as the person with a disability to perform
services there, but who will not actually perform services on the
flight, is not covered by this paragraph.
Finally, for a person with a fused or immobilized leg (e.g., a
surgically fused leg), the required accommodation is a bulkhead row
seat or some other seat providing additional legroom for the leg. This
provision is the same as in the NPRM, except for a clarification that
the seat must be provided on the side of the aircraft aisle that is
more useful to the passenger.
All these circumstances are likely to be visible to carrier
personnel, and we agree with commenters that documentation of these
circumstances is unnecessary and burdensome. We do not agree with the
carrier comment that identifying these categories somehow discriminates
against passengers with other disabilities. In any disability law or
regulation, accommodations are specific to the specific disabilities in
question. Having a ramp into a building for wheelchair users does not
discriminate against ambulatory deaf people. Braille signage does not
discriminate against individuals with mental disabilities. Nor does
requiring a seat in a row with a movable armrest for a wheelchair user
discriminate against blind passengers.
In the course of implementing the ACAA's nondiscrimination
requirement, the Department has already required numerous
accommodations for persons with specific disabilities, from movable
aisle armrests, boarding assistance and wheelchair storage requirements
for persons with mobility impairments to information in accessible
formats for visually impaired persons. Seating accommodations are just
one more set of such specific accommodations, of the sort that carrier
comments, in the context of their argument concerning the general
nondiscrimination requirement, agreed that the Department had the
authority to impose.
The Department recognizes, as commenters pointed out, that some
individuals with disabilities who do not fit into the four categories
listed in paragraph (a) (e.g., individuals whose disabilities or needs
for accommodation
[[Page 10534]]
are not obvious to observers) may need seat assignment accommodations
in order to readily access and use airline services. No set of
categories can ever encompass every possible individual or situation.
At the same time, the Department wants to define the requirements for
accommodations sufficiently narrowly as to facilitate implementation
and limit the possibility of abuse. We also understand the objections
of disability community commenters to requirements for documentation.
To address all these concerns, the final rule provides a different
mechanism for individuals with disabilities other than those in the
four categories specified in paragraph (a) who need seat assignment
accommodations in order to readily access and use airline services.
Such individuals will be assigned, on their request, any seat that has
not already been assigned to another passenger, even if that seat is
not otherwise available to the general passenger population at the time
of the request. Such individuals would not be entitled to be assigned
seats ``blocked'' for passengers specified in paragraph (a). If
assigned to a designated priority seat, such an individual could, like
other passengers, be reassigned to another seat if needed to
accommodate a passenger specified in paragraph (a).
For example, suppose there are 100 seats available on a given
flight operated by a carrier that blocks seats to provide the
accommodations required by paragraph (a). The seats on the flights fall
into three categories: Category A consists of 10 seats blocked for
persons with disabilities specified in paragraph (a); Category B
consists of 20 seats which are held for assignment to frequent fliers
and full-fare passengers; Category C consists of the rest of the seats,
which are available for assignment to all passengers. A person with a
disability not specified in paragraph (a) calls for a reservation,
self-identifying as to the nature of his or her disability and the need
for a particular kind of seat assignment to accommodate the disability.
The carrier would not assign the person a Category A seat. The carrier
would assign any seat in Category B or C that successfully provided the
needed accommodation and that had not already been assigned to someone,
even though Category B seats are not normally made available to persons
other than frequent fliers or full-fare passengers at this stage of the
process. The carrier would not be required to reassign other passengers
who had already received their seat assignments.
Carriers using the designated priority seats mechanism to comply
with paragraph (a) would follow a somewhat similar pattern. In this
case, Category A consists of designated priority seats. A person with a
disability not specified in paragraph (a) calls for a reservation,
self-identifying as to the nature of his or her disability and the need
for a particular kind of seat assignment to accommodate the disability.
The carrier would assign a seat in any of the three categories that
successfully provided the needed accommodation and that had not already
been assigned to someone, even though some or all Category A or B seats
are not normally made available to other than frequent fliers or full-
fare passengers at this stage of the process. The carrier would not be
required to reassign other passengers who had already received their
seat assignments. In the event that the passenger was assigned a
Category A seat, the passenger would receive the same notice as non-
disabled persons assigned Category A seats that he or she was subject
to reassignment if needed to accommodate someone with a disability
specified in paragraph (a).
Carriers that do not assign seats in advance would simply
accommodate passengers with disabilities not specified in paragraph (a)
in the same way as those who are, affording them priority in the
preboarding process.
Carriers are not required to provide the seating accommodations
specified in this section if the passenger does not request them. As
noted in the NPRM, carriers are not required to provide more than one
seat to a passenger per ticket (e.g., carriers could require a very
obese passenger, who occupies the space of two seats, to purchase two
tickets).
The Department realizes that carriers may need some time to
implement the requirements of this section. For this reason, the final
rule establishes a compliance date of six months from the effective
date of the rule.
Collapsible Electric Wheelchairs
NPRM Proposals
The NPRM proposed to add collapsible, folding, or break-down
electric wheelchairs to existing provisions requiring in-cabin storage
for manual wheelchairs. These chairs would be regarded in the same way
as manual wheelchairs are for in-cabin storage, and would be subject to
FAA rules for carry-on items. In addition, a provision was proposed to
be added to the section of the rule on battery stowage, providing that
when a wheelchair was to be folded or broken down, the carrier would
remove the battery and fold the wheelchair for in-cabin storage.
Carriers would continue to follow DOT hazardous materials rules with
respect to removal, packaging, and stowing of batteries.
Comments and DOT Response
There was less disagreement about this proposal than others in the
NPRM. Both carriers and disability community commenters generally
supported it. A number of these commenters, as well as some battery
manufacturers, expressed concern about the issue of how to handle
batteries. This has been a troublesome issue over time, primarily
because carriers have had difficulty in distinguishing spillable from
nonspillable batteries and believe they cannot rely on passengers'
representations on the matter. The two kinds of batteries are treated
differently under DOT hazardous materials rule. Several commenters
sought additional clarification of rules concerning batteries.
One suggestion that has merit is that batteries labeled by
manufacturers as nonspillable, as provided in a DOT hazardous materials
rule (49 CFR 173.159(d)(2)), should be carried in the cabin. Carriers
would be authorized to detach, package, and carry as cargo batteries
that are not so labeled. Existing advance notice requirements for
handling electric wheelchairs would continue to apply, regardless of
whether the wheelchair itself were to be stowed in the cabin or as
cargo. As a general matter, carriers and passengers should be aware
that, except for the new reference to 49 CFR Sec. 173.159(d)(2),
today's amendment does not alter existing rules concerning batteries,
but concerns merely the stowage location for the wheelchair itself.
The Department notes that the one-hour advance check-in provision
of Sec. 382.41(g)(1) would apply to electric wheelchairs that are
carried in the cabin as well as to those that are carried as checked
items. In addition, while the rule provides that carriers would not
treat manufacturer-labeled nonspillable batteries as spillable
batteries, there still may be circumstances under which carriers might
have to take steps to prepare batteries for safe transportation (e.g.,
disconnect and tape connections to prevent possible sparking). Of
course, if a labeled non-spillable battery appeared to be damaged or
leaking, the carrier could determine that, for safety's sake, it was
necessary to package it separately (or, even deny transportation for
the battery if the potential safety hazard were serious enough).
Disability community commenters said there were continuing problems
[[Page 10535]]
with airlines' handling of wheelchairs, especially electric
wheelchairs. Carriers too often fail to do the job properly, they
asserted. One commenter asked for additional training requirements for
carrier personnel concerning handling of wheelchairs; we do not believe
that additional specific requirements are necessary at this time, given
that the training to proficiency requirements already in the rule
encompass handling of wheelchairs.
Some carrier comments suggested there should be discretion
exercised by carrier personnel concerning on-board stowage of
wheelchairs or parts of them, because the chairs or parts may be heavy
or bulky, exceeding the capacity of storage bins and other spaces. The
Department does not believe that any special rule language is necessary
to accommodate this concern. Wheelchairs and parts stowed in the cabin
must comply with FAA carry-on baggage requirements. In the enforcement
of such FAA requirements, carrier personnel can exercise the same
discretion concerning wheelchairs or parts that they do with respect to
other items that passengers bring on board (though wheelchairs and
other assistive devices do not count against a passenger's carry-on bag
limit). Carriers should note, however, that Sec. 382.41(e)(2) gives
wheelchairs priority over other passengers' carry-on luggage.
Regulatory Analyses and Notices
This final rule is not a significant rule under Executive Order
12866 or the Department's Regulatory Policies and Procedures. The
Department certifies that this rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
The basis for this statement is that the modifications to airline
practices and procedures that the rule requires involve little
additional cost or burden to carriers or airports, whatever their size.
The Department has determined that there would be not be sufficient
Federalism impacts to warrant the preparation of a Federalism
Assessment. As it implements a nondiscrimination statute, this rule is
not subject to scrutiny under the Unfunded Mandates Act.
List of Subjects in 14 CFR Part 382
Aviation, Handicapped.
Issued this 24th day of February, 1998, at Washington, D.C.
Rodney E. Slater,
Secretary of Transportation.
For the reasons set forth in the preamble, the Department amends 14
CFR part 382 as follows:
PART 382--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN AIR
TRAVEL
1. The authority citation for 14 CFR part 382 would continue to
read as follows:
Authority: 49 U.S.C. 41702, 47105, and 41712.
2. In 14 CFR 382.7, a new paragraph (c) would be added to read as
follows:
Sec. 382.7 General prohibition of discrimination.
* * * * *
(c) Carriers shall, in addition to meeting the other requirements
of this part, modify policies, practices, or facilities as needed to
ensure nondiscrimination, consistent with the standards of section 504
of the Rehabilitation Act, as amended. Carriers are not required to
make modifications that would constitute an undue burden or would
fundamentally alter their program.
3. A new Sec. 382.38 is added, to read as follows:
Sec. 382.38 Seating accommodations.
(a) On request of an individual who self-identifies to a carrier as
having a disability specified in this paragraph, the carrier shall
provide the following seating accommodations, subject to the provisions
of this section:
(1) For a passenger who uses an aisle chair to access the aircraft
and who cannot readily transfer over a fixed aisle armrest, the carrier
shall provide a seat in a row with a movable aisle armrest.
(2) The carrier shall provide a seat next to a passenger traveling
with a disability for a person assisting the individual in the
following circumstances:
(i) When an individual with a disability is traveling with a
personal care attendant who will be performing a function for the
individual during the flight that airline personnel are not required to
perform (e.g., assistance with eating);
(ii) When an individual with a vision impairment is traveling with
a reader/assistant who will be performing functions for the individual
during the flight; or
(iii) When an individual with a hearing impairment is traveling
with an interpreter who will be performing functions for the individual
during the flight.
(3) For an individual traveling with a service animal, the carrier
shall provide, as the individual requests, either a bulkhead seat or a
seat other than a bulkhead seat.
(4) For a person with a fused or immobilized leg, the carrier shall
provide a bulkhead seat or other seat that provides greater legroom
than other seats, on the side of an aisle that better accommodates the
individual's disability.
(b) A carrier that provides advance seat assignments shall comply
with the requirements of paragraph (a) of this section by any of the
following methods:
(1) The carrier may ``block'' an adequate number of the seats used
to provide the seating accommodations required by this section.
(i) The carrier shall not assign these seats to passengers not
needing seating accommodations provided under this paragraph until 24
hours before the scheduled departure of the flight.
(ii) At any time up until 24 hours before the scheduled departure
of the flight, the carrier shall assign a seat meeting the requirements
of this section to an individual who requests it.
(iii) If an individual with a disability does not make a request at
least 24 hours before the scheduled departure of the flight, the
carrier shall meet the individual's request to the extent practicable,
but is not required to reassign a seat assigned to another passenger in
order to do so.
(2) The carrier may designate an adequate number of the seats used
to provide seating accommodations required by this section as
``priority seats'' for individuals with disabilities.
(i) The carrier shall provide notice that all passengers assigned
these seats (other than passengers with disabilities listed in
paragraph (a) of this section) are subject to being reassigned to
another seat if necessary to provide a seating accommodation required
by this section. The carrier may provide this notice through its
computer reservation system, verbal information provided by reservation
personnel, ticket notices, gate announcements, counter signs, seat
cards or notices, frequent-flier literature, or other appropriate
means.
(ii) The carrier shall assign a seat meeting the requirements of
this section to an individual who requests the accommodation and checks
in at least one hour before the scheduled departure of the flight. If
all designated priority seats that would accommodate the individual
have been assigned to other passengers, the carrier shall reassign the
seats of the other passengers as needed
[[Page 10536]]
to provide the requested accommodation.
(iii) If the individual with a disability does not check in at
least an hour before the scheduled departure of the flight, the carrier
shall meet the individual's request to the extent practicable, but is
not required to reassign a seat assigned to another passenger in order
to do so.
(c) On request of an individual who self-identifies to a carrier as
having a disability other than one in the four categories listed in
paragraph (a) of this section and as needing a seat assignment
accommodation in order to readily access and use the carrier's air
transportation services, a carrier that assigns seats in advance shall
provide such an accommodation, as described in this paragraph.
(1) A carrier that complies with paragraph (a) this section through
the ``seat-blocking'' mechanism of paragraph (b)(1) of this section
shall implement the requirements of this paragraph as follows:
(i) When the passenger with a disability not described in paragraph
(a) of this section makes a reservation more than 24 hours before the
scheduled departure time of the flight, the carrier is not required to
offer the passenger one of the seats blocked for the use of passengers
with disabilities listed under paragraph (a) of this section.
(ii) However, the carrier shall assign to the passenger any seat,
not already assigned to another passenger, that accommodates the
passenger's needs, even if that seat is not available for assignment to
the general passenger population at the time of the request.
(2) A carrier that complies with this section through the
``designated priority seats'' mechanism of paragraph (b)(2) of this
section shall implement the requirements of this paragraph as follows:
(i) When a passenger with a disability not described in paragraph
(a) of this section makes a reservation, the carrier shall assign to
the passenger any seat, not already assigned to another passenger, that
accommodates the passenger's needs, even if that seat is not available
for assignment to the general passenger population at the time of the
request.
(ii) If such a passenger is assigned to a designated priority seat,
he or she is subject to being reassigned to another seat as provided in
paragraph (b)(2) of this section.
(d) A carrier that does not provide advance seat assignments shall
provide seating accommodations for persons described in paragraphs (a)
and (c) of this section by allowing them to board the aircraft before
other passengers, including other ``pre-boarded'' passengers, so that
the individuals needing seating accommodations can select seats that
best meet their needs if they have taken advantage of the opportunity
to pre-board.
(e) A carrier may comply with the requirements of this section
through an alternative method not specified in paragraphs (b) through
(d) of this section. A carrier wishing to do so shall obtain the
written concurrence of the Department of Transportation (Office of the
Secretary) before implementing the alternative method.
(f) The carrier shall assign a seat providing an accommodation
requested by an individual with a disability, as specified in this
section, even if the seat is not otherwise available for assignment to
the general passenger population at the time of the individual's
request.
(g) If the carrier has already provided a seat to an individual
with a disability to furnish an accommodation required by paragraph (a)
or (c) of this section, the carrier shall not reassign that individual
to another seat in response to a subsequent request from another
individual with a disability, without the first individual's consent.
(h) In no case shall any individual be denied transportation on a
flight in order to provide accommodations required by this section.
(i) Carriers are not required to furnish more than one seat per
ticket or to provide a seat in a class of service other than the one
the passenger has purchased.
(j) In responding to requests from individuals for accommodations
required by this section, carriers shall comply with FAA safety rules,
including those pertaining to exit seating (see 14 CFR 121.585 and
135.129).
(k) Carriers are required to comply with this section beginning
August 31, 1998.
Sec. 382.41 [Amended]
4. In 14 CFR 382.41(b), the citation ``49 CFR 173.260(d)'' is
amended to read ``49 CFR 173.159(d).''
5. In 14 CFR 382.41(e), the introductory paragraph is amended by
adding, after the word ``wheelchairs'', the following words:
``(including collapsible or break-down battery-powered wheelchairs,
subject to the provisions of paragraph (g)(5) of this section) as
carry-on baggage''.
6. In 14 CFR 382.41(e)(2), in the first sentence, the word ``an''
is added before the word ``aircraft'' and a comma and the words
``collapsible, or break-down'' are added after the word ``folding,'' in
both places where that word occurs.
7. In 14 CFR 382.41(e)(3), a comma and the words ``collapsible, or
break-down'' are added after the word ``folding,''
8. In 14 CFR 382.41(f), the words ``When passenger compartment
storage is not available'' are removed and the following words are
added in their place: ``When a folding, collapsible, or break-down
wheelchair cannot be stowed in the passenger cabin as carry-on
baggage,''.
9. In 14 CFR 382.41, paragraph (g) is revised and paragraph (h) is
added to read as follows:
Sec. 382.41 Stowage of personal equipment.
* * * * *
(g) Whenever baggage compartment size and aircraft airworthiness
considerations do not prohibit doing so, carriers shall accept a
passenger's battery-powered wheelchair, including the battery, as
checked baggage, consistent with the requirements of 49 CFR
175.10(a)(19) and (20) and the provisions of paragraph (f) of this
section.
(1) Carriers may require that qualified individuals with a
disability wishing to have battery-powered wheelchairs transported on a
flight (including in the cabin) check in one hour before the scheduled
departure time of the flight. If such an individual checks in after
this time, the carrier shall nonetheless carry the wheelchair if it can
do so by making a reasonable effort, without delaying the flight.
(2) If the battery on the individual's wheelchair has been labeled
by the manufacturer as non-spillable as provided in 49 CFR
173.159(d)(2), or if a battery-powered wheelchair with a spillable
battery is loaded, stored, secured and unloaded in an upright position,
the carrier shall not require the battery to be removed and separately
packaged. Notwithstanding this requirement, carriers may remove and
package separately any battery that appears to be damaged or leaking.
(3) When it is necessary to detach the battery from the wheelchair,
carriers shall, upon request, provide packaging for the battery meeting
the requirements of 49 CFR 175.10(a)(19) and (20) and package the
battery. Carriers may refuse to use packaging materials or devices
other than those they normally use for this purpose.
(4) Carriers shall not drain batteries.
(5) At the request of a passenger, a carrier shall stow a folding,
break-down or collapsible battery-powered wheelchair in the passenger
cabin stowage area as provided in paragraph
[[Page 10537]]
(e) of this section. If the wheelchair can be stowed in the cabin
without removing the battery, the carrier shall not remove the battery.
If the wheelchair cannot be stowed in the cabin without removing the
battery, the carrier shall remove the battery and stow it in the
baggage compartment as provided in paragraph (g)(3) of this section. In
this case, the carrier shall permit the wheelchair, with battery
removed, to be stowed in the cabin.
(h) Individuals with disabilities shall be permitted to provide
written directions concerning the disassembly and reassembly of their
wheelchairs.
[FR Doc. 98-5525 Filed 3-3-98; 8:45 am]
BILLING CODE 4910-62-P
