[Federal Register Volume 64, Number 147 (Monday, August 2, 1999)]
[Rules and Regulations]
[Pages 41781-41783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19447]
[[Page 41781]]
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DEPARTMENT OF TRANSPORTATION
14 CFR Parts 254 and 382
[Docket OST-99-5099]
RIN 2105-AC77
Nondiscrimination on the Basis of Disability in Air Travel;
Compensation for Damage to Wheelchairs and Other Assistive Devices
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 (ACAA) to lift an existing cap on the amount
of compensation airlines have to pay to passengers for loss or damage
of their wheelchairs and other assistive devices. The rule is intended
to provide additional relief to passengers who use expensive assistive
devices that are lost, destroyed or damaged in the course of airline
travel.
EFFECTIVE DATE: This final rule becomes effective on September 1, 1999.
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); 202-366-9313 (fax);
bob.ashby@ost.dot.gov (e-mail).
SUPPLEMENTARY INFORMATION: This final rule concerns the issue of
compensation for loss of or damage to wheelchairs or other assistive
devices. The current regulation provides that:
With respect to domestic flights, carriers shall not limit
liability for loss, damage or delay concerning wheelchairs or other
mobility aids to any amount less than twice the liability limits
established for passengers' luggage under 14 CFR Part 254. (14 CFR
382.43(b))
This means that carriers are not required to pay compensation exceeding
$2500 for loss of or damage to wheelchairs or other assistive devices,
given the present $1250 liability limit for luggage that Part 254
permits carriers to impose in domestic transportation. (The Department
has recently proposed raising this limit to $2500, which would have the
effect, under the present ACAA rule, of raising the liability limit for
wheelchairs and other assistive devices to $5000. ) People with
disabilities have complained that this does not provide adequate
compensation for the loss of or serious damage to expensive equipment,
such as power wheelchairs that may cost $15,000 or more. Given that a
passenger whose wheelchair is lost or seriously damaged will lose his
or her mobility at the destination, people with disabilities believe
that the Department should require airlines to do more, such as pay
full compensation for the loss and make repair or loaner service
available.
The Department considered this issue in the original ACAA
rulemaking (see 55 FR 8038; March 6, 1990). In response to similar
disability group comments at that time, the Department responded that
requiring carriers to pay full replacement value did not sufficiently
recognize the ability of passengers to purchase insurance for such
expensive items. Consequently, the final rule permitted airlines to cap
their liability at twice the liability limit for general baggage.
On February 17, 1999, the Department reopened the issue and
published a notice of proposed rulemaking (NPRM) in the Federal
Register (64 FR 7833). Based on anecdotal information, the Department
believed that the majority of wheelchairs used in air travel are manual
wheelchairs, many of which cost less than $2500. However, the
Department further believed that other travelers used power
wheelchairs, which typically are stowed as checked baggage and many of
which, if lost, damaged, or destroyed, could cost substantially more
than $2500 to repair or replace (e.g., over $13,000 in one case brought
to our attention). However, we believed that there would be relatively
few instances of wheelchair loss or damage that would exceed $2500,
limiting the cost exposure to airlines of removing the current cap.
Comments
The Department received thirty-two comments from individuals,
associations, and interest groups. These included the Air Transport
Association of America (ATA), representing the views of major airlines,
and various individuals and groups in the disability community.
Claim Experience
Both the ATA and the disability community agreed that the majority
of damage to wheelchairs occurs to manual units, with repair or
replacement costs under $2500. The ATA said that ATA member airlines
receive less than fifty complaints a year related to wheelchairs and
ninety percent of them are for less than $500. The ATA also reported
that claims for standard wheelchairs average $450 to $500 per claim and
claims for electric wheelchairs average $1500 per claim. ATA mentioned
that its members had voluntarily paid a few claims in excess of
$20,000. Also, the Eastern Paralyzed Veterans Association (EPVA), which
does wheelchair repairs at New York City airports, reported that it
repaired 31 wheelchairs in 1998, at an average cost of $467.95 per
repair.
Elimination of Liability Limit
A common theme throughout the disability community comments was
that wheelchairs and other assistive devices are not ordinary luggage.
Disabled people must take their assistive devices because their
mobility, independence, and health depend on them. When a disabled
person travels with an air carrier, he or she places his or her means
of mobility and livelihood into the hands of the airline. According to
some of the comments, airline personnel sometimes disregard the
instructions given to them by the passenger concerning how to properly
handle the assistive device, or may misunderstand the instructions
because they are not fluent in English. Furthermore, commenters said
that fear of having to make an expensive repair if their device is
damaged may deter some people from traveling by air.
Disability community comments also asserted that the amount of
damages should be the full replacement or repair cost because
depreciation in value is too hard to calculate. They also asked for
some sort of system through which the airline would provide a loaner
device during the period when the passenger's own device was being
repaired. Some comments also addressed the issue of insurance. The
comments asserted that coverage for assistive devices is often excluded
from homeowner policies. They said it would be unfair to require
passengers to purchase extra insurance for something they had no choice
but to take with them. Finally, these comments expressed a belief that
lifting the liability cap will provide an incentive for airlines to
train their employees to comply with ACAA regulations and properly
handle assistive devices.
The ATA's comment said that the proposed rule did not address all
of the issues associated with wheelchair handling. Instead of a final
rule, ATA supported issuing a broader advance notice of proposed
rulemaking (ANPRM) on the general issue of wheelchair handling. ATA
also suggested that passengers should remain responsible for some part
of the risk of transporting expensive equipment, such as through
obtaining insurance.
ATA stressed three other points. First, a two-hour advance check in
deadline should be required for people wishing to transport an
assistive device. This extra time would allow airlines to prepare
adequately for carrying of these
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devices, while avoiding flight delays. Additional time is particularly
important if more than one electric wheelchair is to be transported on
the same flight. Second, ATA said that passengers should be required to
provide written instructions on how to disassemble batteries and
delicate units. Third, ATA questioned the practicality of requiring
airlines to maintain an adequate supply of wheelchairs at more than 500
commercial airports in order to provide loaners. ATA pointed out that
local supply stores are available if a loaner is needed.
Cost Calculation
In the NPRM, the Department sought comment on whether additional
guidance is necessary on how compensation should be calculated (e.g.,
depreciated vs. replacement cost). Disability community comments said
that there is no market for used, customized assistive devices, thus
making depreciation in value too hard to calculate. Most of these
comments supported requiring airlines to pay the full replacement cost
for a destroyed wheelchair (i.e., the cost of a new wheelchair,
regardless of the value of the device that had been destroyed). ATA did
not comment specifically on this issue, but did express concern about
paying for damage that was done before the chair was given to the
airline for transport. ATA also expressed concern that lifting the
liability cap would allow higher consequential damages to be assessed
against carriers in claims resulting from damaged or destroyed
wheelchairs.
DOT Response
The Department is persuaded by the comments of the disability
community that wheelchairs and other assistive devices should be viewed
differently from other baggage. For wheelchair users, their devices are
essential, not only to the purpose of a trip, but for all daily
activities. The information provided in the comments confirms the
Department's impression that there are likely to be relatively few
instances where carriers will have to pay large claims, even in the
absence of the current regulatory provision allowing carriers to limit
their liability. For this reason, the cost exposure to carriers of
changing the rule will not be large.
On the other hand, from the perspective of an individual whose
expensive electric wheelchair is lost or destroyed, the expense of
replacing it can be very difficult to bear. Consequently, we believe
that the fairest solution is to remove the current liability cap. The
issue is a straightforward one, which commenters discussed thoroughly,
and we see no need for an ANPRM as ATA suggested. Wheelchair users may
still want to purchase insurance, which may expedite the payment of
claims. The ultimate responsibility for damage that occurs while a
passenger's device is in the hands of the carrier should rest with the
carrier, however.
Under existing DOT baggage rules, carriers are responsible for
consequential damages (see 14 CFR part 254). There is no DOT
administrative mechanism for awarding these damages; they would be paid
through the carriers' claims processes or awarded by the courts. This
rule, while removing a regulatory provision allowing carriers to limit
their liability for consequential as well as other damages, would not
change this basic pattern. It is possible that, as some disability
community comments suggested, the possibility of larger consequential
damage awards would increase carriers' incentive to ensure that
personnel who handle wheelchairs are well trained.
With respect to the way in which costs of settlements are
calculated, the Department is persuaded by disability community
comments that it is difficult to establish an accurate depreciated
value for electric wheelchairs. In the absence of a significant
aftermarket for these often individually-tailored devices, there is no
parallel to a ``blue book'' value that can be accurately assigned. On
the other hand, it may not be fair to airlines to assess the current
replacement cost of a device. For example, a wheelchair that cost
$10,000 two years ago may today, because of changes in the equipment or
in the market for new wheelchairs, cost $12,000. The $2000 difference
in the purchase price of the device cannot be attributed to any action
on the airlines' part. For this reason, in the case of a device that is
lost or damaged so badly that it must be replaced, the airline would be
responsible for the original purchase price ($10,000 in the example
above) rather than the total cost of a new device. The statement of
this criterion in the rule refers only to the cost of repair or
replacement of the device itself; it does not, for example, establish a
limit on consequential damages.
The Department believes that requiring the payment of the original
purchase price strikes a reasonable balance between the current
industry practice of using depreciated value and the proposal,
advocated by disability community comments, of requiring carriers to
pay the current replacement cost of a wheelchair. In addition, this
method should simplify the payment of claims and minimize the number
and scope of disputes between passengers and airlines. As is the case
today, carriers would remain free to require passengers to document the
original purchase price of a lost or damaged assistive device (e.g.,
purchase receipt, credit card statement, canceled check). In a case
where an assistive device is damaged but repairable, the proper measure
of compensation is quite clearly the cost of the repair. The Department
believes that airlines can avoid the potential problem of being asked
to pay for pre-existing damage by inspecting the device and documenting
anything that is wrong with it when the passenger checks in, as
carriers commonly do with baggage.
The Department's ACAA rule is not intended to require compensation,
to any greater extent than courts might award, merely for minor
cosmetic damage to wheelchairs or assistive devices. Neither this
provision nor --382.43(a), which requires carriers to return
wheelchairs and assistive devices to passengers in the condition
received by the carrier, would require the carrier, for example, to
replace a wheelchair frame that had suffered a small dent or scratch
that did not impair the structural soundness or functioning of the
device.
In the NPRM, the Department sought comment on whether it is
desirable and practical to require that airlines provide a ``loaner''
device during the period when the damaged device is being repaired or
replaced. While a wheelchair is essential equipment, without which the
passenger can be stranded, the Department agrees with the ATA that it
would be impractical to require each airline to maintain an adequate
supply of wheelchairs at more than 500 commercial airports. As pointed
out in the comments, many devices are customized to fit an individual's
specific needs, and it could be extremely burdensome to require
airlines to come up with the same or similar type of wheelchair.
Information about where to obtain a ``loaner'' is available in many
locations from the disability community, medical equipment suppliers,
or the airlines themselves. We note that the cost of a loaner could
constitute consequential damages for which, in some circumstances, a
carrier could be liable.
The ATA recommended permitting carriers to require a two-hour
advance check-in for passengers wishing to transport electric
wheelchairs. The Department does not have, nor did the ATA present, any
data to support a contention that a mandatory check-in period of this
length would have a
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significant effect on preventing damage to wheelchairs. On the other
hand, carrier personnel are more likely to do a good job of preparing
the wheelchair for transportation if they are not trying to do so at
the last minute.
The Department's existing ACAA regulation has two provisions that
can help carriers avoid ``last-minute'' problems. First,
Sec. 382.41(g)(1) permits carriers to require passengers wanting to
transport electric wheelchairs to check in an hour before the scheduled
departure time of the flight. This is consistent with the now-pervasive
industry recommendation that all passengers arrive an hour before
flight time.
As an interpretive matter, we emphasize that the purpose of the
one-hour advance check-in deadline is to give carrier personnel enough
time to prepare an electric wheelchair for transportation. Therefore,
in this context, checking in means not just reporting at the gate or
ticket counter but actually turning the wheelchair over to carrier
personnel to prepare it for shipment. If a passenger checks in at the
gate at 1:00 for a 2:00 flight, but does not surrender the wheelchair
to carrier personnel until 1:45, the value of the one-hour advance
check-in is diminished. Of course, the airline has the responsibility
of providing the passenger, on request, a boarding chair and any
necessary assistance in boarding of the aircraft.
Second, Sec. 382.41(g)(2) states that if a passenger's wheelchair
battery has been labeled by the manufacturer as non-spillable, or if
the wheelchair can be loaded, stored, and secured in an upright
position, the carrier shall not require the battery to be removed and
separately packaged. In such instances, the airline need not
disassemble the chair or separately box the battery, but only
disconnect the battery and tape or otherwise insulate the battery
terminals to prevent short circuits. By following this rule, carriers
would not only reduce the probability of damage to the chair, but also
reduce significantly the time it takes to stow the wheelchair and
return it to the passenger on arrival.
The ATA felt that passengers should be required to provide written
instructions on the assembly and disassembly of batteries and other
delicate equipment. The current rule authorizes individuals to provide
written instructions concerning the assembly and disassembly of their
wheelchairs, and we believe it is a good idea for them--and perhaps for
wheelchair manufacturers as well--to do so. However, given that some
passengers may not be fluent in English, or that some disabilities may
impair an individual's ability to provide such instructions, or that
documents can get lost, we do not believe it would be prudent to
require passengers to provide written instructions or to allow carriers
to require it as a condition for transportation or compensation.
In order to avoid confusion for readers of 14 CFR part 254, the
Department's baggage liability regulation, we have added a sentence
pointing out that part 254's baggage liability limit does not apply to
wheelchairs and other assistive devices used by passengers with
disabilities.
Regulatory Analyses and Notices
This final rule is not a significant rule under Executive Order
12866 or a significant rule under the Department's Regulatory Policies
and Procedures. Based on the data currently available to the Department
and received in the comments, the Department estimates that the costs
associated with this rule are not significant. The ATA submitted data
indicating that ATA member airlines receive less than fifty complaints
a year related to wheelchairs and that ninety percent of these claims
are for less than $2500. Furthermore, the ATA asserts that virtually
all of its claims are paid in full, even the ones above $2500.
Therefore, the incremental costs of this rule are likely to be minimal.
The Department certifies that this rule will not have a significant
economic effect on a substantial number of small entities. The basis
for this statement is the probability that the overall national annual
costs would be minimal. Also, the Department does not believe that
there would be sufficient Federalism impacts to warrant the preparation
of a Federalism Assessment.
List of Subjects
14 CFR Part 254
Air carriers, Consumer protection, Freight, Reporting and
recordkeeping requirements.
14 CFR Part 382
Air carriers, Civil rights, Individuals with disabilities,
Reporting and recordkeeping requirements.
Issued This 23rd Day of July 1999, at Washington, DC
Rodney E. Slater,
Secretary of Transportation.
For the reasons set forth in the preamble, the Department amends 14
CFR parts 254 and 382 as follows:
PART 254--DOMESTIC BAGGAGE LIABILITY
1. The authority citation for 14 CFR part 254 continues to read as
follows:
Authority: Secs. 204, 403, 404 and 411, Pub. L. 85-726, as
amended, 72 Stat. 743, 758, 760, 769; 49 U.S.C. 1324, 1373, 1374,
1381.
2. Section 254.4 is amended by adding a sentence at the end of the
section to read as follows:
Sec. 254.4 Carrier liability.
* * * Pursuant to 14 CFR 382.43(b), this limit does not apply to
wheelchairs or other assistive devices used by passengers with
disabilities.
PART 382--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN AIR
TRAVEL
3. The authority citation for 14 CFR part 382 continues to read as
follows:
Authority: 49 U.S.C. 41702, 41705, and 41712.
4. In Sec. 382.43, paragraph (b) is revised to read as follows:
Sec. 382.43 Treatment of mobility aids and assistive devices.
* * * * *
(b) With respect to domestic transportation, the baggage liability
limits of 14 CFR part 254 do not apply to liability for loss, damage,
or delay concerning wheelchairs or other assistive devices. The
criterion for calculating the compensation for a lost, damaged, or
destroyed wheelchair or other assistive device shall be the original
purchase price of the device.
* * * * *
[FR Doc. 99-19447 Filed 7-30-99; 8:45 am]
BILLING CODE 4910-62-P
