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

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.

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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]

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