Nondiscrimination on the Basis of Disability in Air Travel

DEPARTMENT OF TRANSPORTATION

14 CFR Part 382

[Docket OST-96-1880]

RIN 2105-AC28

Nondiscrimination on the Basis of Disability in Air Travel

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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SUMMARY: The Department is amending its rules implementing the Air

Carrier Access Act of 1986. The amendments establish procedures for

providing seating accommodations for individuals with disabilities,

clarify the general nondiscrimination obligations of carriers, and

provide for the in-cabin stowage of collapsible electric wheelchairs

that can be stowed consistent with carry-on baggage requirements.

EFFECTIVE DATE: This rule is effective April 3, 1998.

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant

General Counsel for Regulation and Enforcement, Department of

Transportation, 400 7th Street, SW., Room 10424, Washington, DC, 20590.

(202) 366-9306 (voice); (202) 755-7687 (TDD).

[[Page 10529]]

SUPPLEMENTARY INFORMATION:

Background

On November 1, 1996, the Department published a notice of proposed

rulemaking (NPRM) asking for comment on a number of issues. The NPRM

proposed to require seating accommodations for certain individuals with

disabilities, to clarify the general nondiscrimination obligations of

carriers, and to provide for the in-cabin carriage of electric

wheelchairs that could be accommodated consistent with carry-on baggage

rules. The Department is today issuing final rules based on these

proposals, with modifications responsive to comments we received.

The preamble to the November 1, 1996, NPRM also asked for public

comment on two matters concerning which we had received suggestions or

petitions from members of the public. These were additional

accommodations for persons with hearing impairments (e.g., captioning

of in-flight movies, on-board TDDs where air phones are made available

to other passengers, better message service in gate areas) and the

provision of a smoke-free accessible path through airports for persons

with respiratory disabilities.

The Department received a number of comments on the issue of

accommodations for hearing impairments. We are continuing to consider

whether to propose requirements for accommodations of this type, but we

are deferring decision on this matter until a later time.

The Department received a large number of comments concerning the

petitions for accessible paths through airports for persons with

respiratory disabilities, many of which went beyond the issues directly

raised by the petitions, reflecting the ongoing public debate about

smoking by taking broad anti-smoking or ``smokers' rights'' positions.

(Some of the comments from anti-smoking groups opposed regulation in

this area, on the view that existing law already requires action by

airports to ban or limit smoking.) While continuing to consider the

issue the petitions raised, the Department is deferring a decision on

whether to propose rules on this subject until a later time. In this

connection, we note that a number of airports are taking action on the

local level to limit the passengers' exposure to ambient smoke.

General Nondiscrimination Obligation

NPRM Proposal

The NPRM proposed to add language making explicit the existing

obligation of carriers to provide accommodations to passengers with

disabilities and remove barriers, applying the standards of section 504

of the Rehabilitation Act and Title III of the Americans with

Disabilities Act (ADA). The purpose of this addition was to clarify

that carriers must modify policies, practices, and facilities where

needed to provide service to passengers with disabilities, even if a

particular accommodation was not specifically mandated elsewhere in

part 382.

Comments and DOT Response

Carriers and disability groups found themselves in somewhat ironic

agreement that the reference in the proposal to ADA standards should be

removed and that the provision should refer only to the standards of

section 504. Disability groups took this position on the basis of their

view that section 504 imposes a more stringent standard on carriers

than Title III of the ADA. Carriers took this position on the basis of

their view that section 504 imposes a less stringent standard on

carriers than Title III of the ADA. Both found the dual reference to

ADA and 504 standards to be vague and confusing.

As the Department noted in the preamble to the NPRM, the history of

the ACAA clearly shows that Congress enacted the statute to fill a gap

in nondiscrimination coverage left by a Supreme Court decision that

said that section 504 of the Rehabilitation Act did not apply to air

carriers, since they do not (with the exception of participants in the

Essential Air Service program) receive Federal financial assistance.

The intent of the statute was to achieve the same protection from

discrimination for airline passengers that section 504 provides persons

affected by Federally-assisted programs. For a summary of the history

of the Act, see the preamble to the Department's 1990 final ACAA rule

(55 FR 8009; March 6, 1990).

Given this history, and the common concerns of disability groups

and carriers that the ADA reference in the NPRM was inappropriate and

confusing, the Department is changing the text of the section in the

final rule. The final rule version tells carriers, in addition to

following the other specific provisions of Part 382, that they must

modify policies, practices, or facilities as needed to ensure

nondiscrimination, consistent with the standards of section 504 of the

Rehabilitation Act, as amended.

One carrier comment proposed an original list interpretation of the

ACAA, under which only those accommodations that would have been

required under section 504 in 1986 could ever be required under the

ACAA. The Department is not persuaded that this interpretation is

sound. It would, among other things, contravene the intent of Congress

that airline passengers have the same protections that people with

disabilities have in other situations under section 504. In

interpreting what rights airline passengers have today, it is far more

reasonable to look at what rights persons with disabilities have under

section 504 today, rather than attempting a historical speculation

about what rights they might have had in previous decades.

In any case, the nondiscrimination provisions of the DOT and

Department of Justice section 504 regulations, as they read in 1986 and

as they read today, clearly support the Department's amendment to

Sec. 382.7. They impose an obligation on covered entities to modify

policies, practices, and facilities to ensure that persons with

disabilities receive services on a nondiscriminatory basis. A carrier's

argument that a requirement to modify polices, practices and facilities

to ensure nondiscrimination is impermissibly vague is without merit.

Like section 504 itself, the statutory language of the ACAA prohibits

discrimination in general terms. There is no basis for asserting that

the only modifications a carrier could ever be required to make are

those specifically enumerated in the existing sections of the rule.

From the beginning of section 504 rules in the 1970s, these rules have

always imposed general, as well as specific, nondiscrimination

obligations on covered entities.

We agree with the comments of both carriers and disability groups

that, under section 504, carriers are not required to make

modifications that would constitute an undue burden or fundamentally

alter the nature of the carriers' service. As in section 504 and ADA

practice generally, what constitutes an undue burden or a fundamental

alteration is a judgment decision that must be made on the facts of a

specific situation. The ACAA clearly provides that carriers not make

modifications that would violate FAA safety rules.

This approach does not represent a departure from existing ACAA

interpretation or practice. Indeed, the Department has consistently

operated on the basis of this understanding of the law. For example,

the issue of food allergies is not specifically mentioned in the text

of Part 382. On several occasions, however, the Department has learned

of situations in which passengers with severe allergies to peanuts have

requested

[[Page 10530]]

accommodations from airlines. The Department has worked informally with

airlines and passengers to arrange appropriate modifications to the

airlines' normal food service practices on specific flights. For

example, in some cases, airlines have agreed to serve an alternate

snack (e.g., pretzels rather than peanuts) to passengers seated near

the allergic passenger. This is an example of a modification to normal

practices that is not unduly burdensome. On the other hand, some

allergic passengers have requested much more sweeping actions by

carriers (e.g., special cleaning of an aircraft to ensure that peanut

residue does not remain on board; screening other passengers to ensure

that they do not bring their own peanut products on board). We have

regarded these requested accommodations as creating undue burdens, and

we have consequently not requested carriers to undertake such steps. In

assessing any requested accommodation, passengers, airlines, and the

Department must exercise judgment on a case-by-case basis concerning

what it is reasonable to expect and what constitutes an undue burden.

Comments from disability group commenters mentioned a number of

examples of types of modification they thought would be appropriate

under this provision. These included chest straps for some mobility-

impaired passengers to provide greater lateral stability in aircraft

seats, allowing a passenger to board last to reduce pain from sitting

for long periods, allowing wheelchair users to check in at the gate

rather than at the airport entrance or ticket counter, and allowing

people who cannot carry luggage to have luggage carts in airport

concourses. These requests--whatever their merits in a particular fact

situation--illustrate the point that a regulation can never possibly

enumerate all possible specific situations potentially calling for

accommodations to achieve nondiscrimination.

This provision is not intended to replace the rulemaking process

with respect to across-the-board changes in carrier policies and

practices. For example, the Department does not intend, in implementing

and enforcing this provision, to address industry-wide issues like on-

board oxygen use by passengers, additional accommodations for

passengers with hearing impairments, or smoking in airports. The

provision is intended to deal with accommodations that take the form of

case-by-case exceptions to otherwise reasonable general policies or

practices of carriers.

The Department wants to take this opportunity to clarify an

apparent misunderstanding that a disability organization had concerning

the effect of the November 1, 1996, amendment the Department made to

the airport facility standards in 14 CFR Part 382 and 49 CFR Part 27

(61 FR 56420, 56422). The group's concern was that the amendments

substantively weakened the requirements for airlines and airports to

meet accessibility standards. The amendments were not intended to do

so, and they in fact did not do so.

As noted in the preamble to the November 1, 1996, final rule (61 FR

56416-18), the coverage of the ADA, section 504, and the ACAA at

airports had been overlapping and confusing. The purpose of the

amendments was to harmonize these authorities, simplifying issues of

statutory and regulatory coverage without affecting substantive

requirements. The amendments did this by saying that airlines and

airports meet their ACAA and section 504 requirements if they meet,

respectively, the standards of Title III and Title II of the ADA.

In doing so, the Department knew that section 10.4 of the Americans

with Disabilities Accessibility Guidelines (ADAAG) incorporated many of

the specific accessibility requirements of the pre-1996 ACAA and

section 504 requirements for airport facilities (56 FR 45714; September

6, 1991). The amendments refer specifically to these provisions (see 49

CFR 27.71(e); 14 CFR 382.23(e)). Requirements not specifically

referenced in the ADAAG provision are retained in the amended ACAA and

section 504 provisions (14 CFR 382.23 (c) and (d) and 49 CFR 27.71 (c)

and (d), which concern accessible paths of travel through airports and

inter-terminal transportation systems, respectively). These provisions

ensure that nothing is lost between the pre-amended and amended ACAA

and 504 sections.

With respect to the issue of modifications for existing facilities,

section 504 has always required recipients to modify policies,

practices, and facilities to ensure nondiscrimination. Section 504 has

never required recipients to incur undue burdens to make these

modifications. The ``program accessibility'' requirements of the

Department of Justice ADA Title II regulation (28 CFR 35.150) require

no less than section 504 with respect to facility accessibility. Using

the program accessibility standard does not in any way relieve

recipients of the obligations they had under section 504 and the pre-

amended 49 CFR part 27 to modify facilities for accessibility. Indeed,

it is difficult to imagine circumstances, in the context of airport

facilities, in which program accessibility could be fully achieved

without facilities being made accessible.

The pre-amended version of the ACAA airport facilities provision

required facility modifications to be made by carriers as of April 5,

1993 (former 14 CFR 382.23(d)). By the time of the amendment, any

existing facility that had not been modified for accessibility had been

out of compliance for approximately 3\1/2\ years. Nothing in the

amendment to Sec. 382.83 is intended to relieve carriers of that pre-

existing compliance obligation. Obviously, any new facility

construction or alterations have had to be accessible since the ACAA

rules first went into effect, which the amendment does not change.

Seating Accommodations

NPRM Proposal

The NPRM proposed that carriers make available to passengers with

disabilities four types of seating accommodations. These included seats

in rows with movable aisle armrests for wheelchair users, seats for a

personal care attendant (PCA) next to a disabled passenger needing the

PCA's services during the flight, seats in either bulkhead or non-

bulkhead rows for persons traveling with service animals, and seats

providing additional legroom for persons with fused or immobilized

legs. While a carrier might have to reassign other passengers to make

these accommodations, no one would be ``bumped'' from a flight and the

carrier would continue to follow all FAA safety rules, including the

exit row seating rule. The carrier could establish up to a 48-hour

advance notice requirement for someone requesting a seating

accommodation.

Comments

Disability community commenters unanimously supported the proposal.

Many of these comments said that even if some other passengers had

their seats changed as a result, their inconvenience did not outweigh

the need of passengers with disabilities for seats that they could

readily access and use. These commenters argued that making seating

accommodations was a reasonable modification of policies and practices

that did not impose an undue burden on carriers or fundamentally alter

the nature of the airlines' services.

There were some modifications that disability community commenters

requested, however. Generally, they opposed the advance notice

provision,

[[Page 10531]]

saying it was discriminatory and worked a hardship of passengers who

had to make short-notice travel plans. They also objected to any

requirement for documenting a disability, saying that this was

burdensome for passengers. Some of these comments also suggested that,

on airlines that do not assign seats in advance, carriers should be

required to let people needing seating accommodations preboard before

other passengers (e.g., families with small children) who also can

preboard. In all preboardings, commenters said, carriers should give

people with disabilities enough time to get settled in their seats

before other passengers board. (It should be noted that some carriers

are reported to be cutting back or eliminating traditional preboarding

procedures. Since some provisions of the ACAA rule, such as the

requirement for on-board stowage of wheelchairs, are premised on the

availability of preboarding to passengers with disabilities, this

change in industry practice may have implications for the accessibility

of air travel to disabled passengers. The Department intends to watch

developments in the preboarding policy area to determine if future

rulemaking may be needed.)

Disability community commenters said that the four categories of

people who the NPRM proposed as eligible for seating accommodations

were too narrow. There would always be individual cases that did not

fit into these or any set of categories, they said, so the rule should

be structured in an ``including but not limited to * * *'' fashion.

Examples of other disabilities cited as requiring accommodations

included a person with a painful disability that made it necessary for

her to minimize being jostled by other people (who thereby needed a

window seat), someone with multiple sclerosis who could walk a few

steps but needed a seat near the entrance to the aircraft, and someone

with bladder or bowel control problems who needed an aisle seat near a

lavatory.

Two commenters suggested that the movable aisle armrest row

accommodation be limited to persons who need an aisle chair to board or

who cannot transfer over a fixed armrest (as distinct from persons who

could walk a few steps to a seat). Other commenters suggested that

reservation systems ``block'' seats needed for accommodations so that

disabled passengers needs could be met without having to displace other

passengers. Alternatively, there could be designated ``priority'' seats

for persons with disabilities, from which other passengers would move

if a seating accommodation became necessary.

Carriers objected to the proposal on a number of grounds. The one

they identified as the most significant had to do with the limitations

of their computer reservation systems. These systems, the carriers

said, could not retrieve the names of passengers by reference to seat

assignments. That is, if a disabled passenger were assigned seat 6C as

an accommodation, the carrier would not be able to determine who had

previously been assigned the seat so as to be able to notify that

passenger of a changed assignment. To provide this notice and avoid an

unpleasant surprise, the carrier would either have to modify its

computer system or comb through individual passenger records, both of

which would be very expensive and unduly burdensome.

In any case, carriers said, it was unfair to impose inconvenience

on other passengers who had expectations of sitting in their original

seat assignment, especially since some of those had good reasons (e.g.,

they were tall, traveling with infants) for wanting a particular seat.

This would create confusion, make the other passengers unhappy,

increase denied boarding compensation claims and flight delays, and

distract flight attendants from safety duties. If passengers requesting

accommodations were not really disabled, it would add to this

discontent. One carrier noted that its policy was to ask other

passengers to move in situations where an expected accommodation for a

disabled passenger did not materialize (e.g., because the equipment for

a flight changed).

The proposal would make carriers discriminate against those

disabled passengers who were not in one of the four categories and

force carriers to ask inappropriate questions of disabled passengers,

carrier comments added. Carriers who do not assign seats in advance

requested that the NPRM preamble statement that their obligations could

be met by their preboarding process be included in the final regulatory

text (a comment seconded by a disability group).

Finally, carriers made a legal argument against the proposal,

saying that it required ``preferential'' treatment and ``affirmative

accommodation'' for disabled passengers, while the Department's

authority was limited to ensuring nondiscrimination. The carriers

already practiced nondiscrimination, they said, by treating all

passengers the same through their ``first-come/first-served'' seat

assignment policy. Requiring a change in this policy, especially as

applied to seats withheld from the general passenger population for

frequent fliers' benefit, would be a fundamental alteration of the

carrier's services, the comments said.

Carriers noted that they already block seats in the reservation

process, including some bulkhead and movable aisle armrest rows, for

people with disabilities. One carrier said that it holds some of the

seats for passengers with disabilities who may not have made their

needs known until check-in.

DOT Response

With some substantive modifications in response to comments, the

Department is adopting the NPRM proposal. Requiring seating

accommodations is necessary to ensure nondiscrimination, is consistent

with the language and intent of the ACAA, and does not create an undue

burden or fundamentally alter the nature of airline services.

The Department strongly disagrees with carrier comments'

characterization of a seating accommodations requirement as

preferential treatment that exceeds the Department's authority under

the ACAA. This requirement simply compels nondiscriminatory seating

policies. It tells airlines they must provide to passengers with

disabilities exactly what they provide to other passengers--a seat the

passenger can readily access and use. A facially neutral policy that

assigns seats to non-disabled passengers that they can readily access

and use but fails to ensure that disabled passengers are assigned seats

they can readily access and use is discriminatory. Comments to the

NPRM, as well as the Department's experience in listening to consumer

concerns about inability or unwillingness of airlines to provide seats

that individuals can readily access and use, persuade us that this

accommodation must be required if the intent of Congress in mandating

nondiscrimination in air travel is to be properly carried out.

Under the ACAA, as with section 504, the Department has authority

to require regulated parties to take steps to ensure nondiscrimination,

as long as these steps do not create an undue burden or fundamentally

alter the nature of an entity's program. This requirement is consistent

with these provisions of disability law.

Airlines regularly provide their customers seats they can access

and use. The seating accommodation requirement does not fundamentally

alter the nature of this service. The rule explicitly provides that no

one will be bumped from a flight to make a seating accommodation and

that the airline will

[[Page 10532]]

continue to follow all applicable FAA safety rules. Contrary to carrier

comments, it is hard to imagine denied boarding compensation claims

increasing under a rule which explicitly provides that no one will be

denied boarding on a flight to accommodate a disabled passenger.

Carriers who assign seats in advance may continue to do so. Carriers

who do not assign seats in advance may continue their practice. The

provision does not require carriers to provide service to classes of

passengers they do not now serve (e.g., passengers who have to travel

on stretchers). Even carriers who hold back some seats for the benefit

of frequent fliers (something that it is difficult to construe

reasonably as fundamental to the nature of air transportation) can

continue to do so, as long as they make exceptions when necessary to

accommodate a passenger with a disability.

Particularly given the modifications the Department is making from

the NPRM (see discussion below), the final rule does not impose undue

burdens. In this connection, the Department observes that the ACAA

permits the Department to impose some burdens on carriers. What the

Department cannot do is impose ``undue'' burdens. The use of this term

in disability law necessarily implies that some burdens are ``due,'' as

a consequence of the obligation of regulated parties to ensure

nondiscrimination. The Department can legally impose these ``due

burdens.'' The primary ``undue burden'' alleged in carrier comments is

the difficulty carriers cite with their computer systems. The

Department accepts the carriers' representations about the limitations

of their computer systems. However, these problems do not result in an

undue burden in the context of the final rule.

This is true because the airlines do not have to do what they say

their computer systems will not allow them to do. The NPRM did not

propose, and the final rule does not require, that airlines retrieve

the names of passengers previously assigned a seat and individually

inform those passengers that their seat assignment has been changed.

The structure of the final rule makes such a mechanism unnecessary,

from a customer relations as well as a legal standpoint.

The first method carriers can use, suggested by both carrier and

disability community comments, is for carriers to ``block'' an adequate

number of seats usable for seating accommodations (e.g., seats in

bulkhead rows, seats in rows with movable aisle armrests, some pairs of

seats) from advance assignment until 24 hours before scheduled

departure time. By an ``adequate'' number of seats, we mean enough

seats to handle a reasonably expectable demand for seating

accommodations of various kinds. It might not be necessary, for

example, to block all aisles with movable armrests or, in an aircraft

with multiple bulkhead areas, all bulkhead rows. Nor would it

necessarily be essential to block all the seats in such rows. Carriers

who use this approach should be aware, however, that they will need to

block some pairs of seats, since someone who is eligible to receive an

accommodation (e.g., a wheelchair user with respect to a row with a

movable aisle armrest) may also be traveling with a personal care

attendant. We anticipate that the burden of implementing this approach

would be light, given that carriers already block seats for disability

and other purposes.

If a disabled passenger specified in the rule calls the carrier

prior to 24 hours before the scheduled departure time, the carrier will

assign the person one of these seats. This would be done even if the

seat is also one that is otherwise held for use of frequent fliers.

Because these seats would never have been assigned to another

passenger, reassignment of the seat will not be an issue, and no other

passenger will ever have to be displaced from a previously assigned

seat. If the disabled passenger makes his or her request later than 24

hours before scheduled departure, the carrier would still try to meet

the passenger's seating accommodation need, but would not have to

change another passenger's seat assignment to do so.

There could be rare situations in which all the seats blocked for a

particular sort of accommodation are filled with individuals with

disabilities and, subsequently but prior to 24 hours before departure,

an additional passenger with a disability requests the same kind of

accommodation. In this case, the carrier would not be required to

change a seat assignment that had already been given to another

disabled passenger. However, the carrier would have meet the disabled

passenger's request by assigning him or her to a seat that provided the

needed accommodation, was not a seat blocked for passengers listed in

paragraph (a), and was still unassigned, even if that seat was

otherwise blocked for frequent fliers or another category of passenger.

Under the second approach available to carriers, suggested by

disability community comments and somewhat analogous practices in other

modes of transportation, carriers would designate an adequate number of

seats as ``priority seats'' for seating accommodations for disabled

passengers. Carriers would provide notice that passengers who are

assigned these seats are subject to being reassigned to another seat if

necessary to accommodate a passenger with a disability.

In the Department's view, the best way to provide this information

would be through notice to the passenger at the time he or she made a

seat selection (e.g., by the airline reservationist or travel agent,

via a screen notice when the passenger is making an on-line seat

assignment, or via a recording when the passenger makes a seat

selection through an automated telephone system). Other methods are

acceptable, however, such as ticket notices, gate announcements,

counter signs, seatback cards, notices in advertisements, timetables,

web sites, or frequent flier literature. Whatever system a carrier

chooses to provide this information, the Department believes it would

be useful to place a sticker or decal (e.g., on the armrest for the

seat or the tray table facing the seat) with an accessibility symbol

and words like ``Priority Seat for Passengers with Disabilities,''

which would help inform passengers about this requirement.

By receiving this information, passengers would know that if they

sat in a priority seat, they could be moved to another seat if a

disabled passenger needed that seat for a seating accommodation.

Because passengers would be on notice that sitting in a priority seat

might occasionally result in having to change seats, passengers who had

to move would not be surprised or have grounds for feeling that their

legitimate expectations had been infringed.

In order to give carriers time to make any necessary adjustments,

carriers could request that passengers with disabilities wishing to

make use of designated priority seats must check in and make their

request an hour before departure. If a passenger failed to do so, the

airline would still have to try to accommodate the person's request,

but would not have to reassign another passenger's seat to do so.

As in the case of carriers who use the ``seat blocking'' mechanism,

there could be rare situations in which all the designated priority

seats are filled with individuals with disabilities, and subsequently

an additional passenger with a disability requests the same kind of

accommodation. In this case, the carrier would not be required to

change a seat assignment that had already been given to another

disabled passenger. However, the carrier would have meet the disabled

passenger's request by

[[Page 10533]]

assigning him or her to a seat that provided the needed accommodation,

was not a designated priority seat, and was still unassigned, even if

that seat was otherwise blocked for frequent fliers or another category

of passenger.

The Department believes that, to implement these requirements

appropriately, carriers would have to block or give priority

designation to seats in all classes of service. This does not mean,

however, that a passenger with a disability would have to be given an

upgrade (e.g., provide a seat in first class to a purchaser of a coach

ticket) in order to be accommodated.

To provide greater flexibility, the rule permits carriers to devise

different approaches to achieving the objectives of this section. To

implement a different approach, a carrier would have to obtain the

written concurrence of the Office of the Secretary, DOT. Carriers

interested in getting approval of a different approach should contact

the Aviation Consumer Protection Division of the Office of the

Assistant General for Aviation Enforcement and Proceedings in the DOT

Office of General Counsel (202-366-5957).

The foregoing discussion has focused on carriers who assign seats

in advance. Carriers who do not assign seats in advance would, as the

NPRM suggested, meet the requirements of this section through the

preboarding process. As requested, this provision has been made part of

the final rule text. In response to a disability community comment,

these carriers would permit persons needing seat accommodations under

this section to preboard before other passengers, including other

passengers who preboard. Regardless of whether the carrier assigns

seats in advance or not, the rule never requires a carrier to choose

between disabled persons who need the same seat accommodation.

The Department believes that these approaches minimize both the

potential burdens on carriers and inconvenience to other passengers. To

the extent that some inconvenience remains, the Department believes

that the inconvenience to a non-disabled passenger who moves from one

seat he or she can readily access and use to another such seat is far

outweighed by the nondiscrimination-related necessity of ensuring that

a disabled passenger can have a seat he or she can readily access and

use. The Department has a statutory responsibility to ensure

nondiscrimination on the basis of disability; there is no parallel

mandate to preclude inconvenience to other passengers who may prefer

some of the same seats that are needed to accommodate a disabled

passenger.

As noted above, the rule specifically provides that no other

passenger would ever be bumped off a flight to make room for an

accommodation needed by a passenger with a disability. For example,

suppose that all seats but one have confirmed reservations for a

particular flight. A disabled passenger then calls to make a

reservation for himself and his PCA. Someone who already had a

confirmed reservation would not lose that reservation to make room for

the PCA. This does not mean, however, that a carrier could not take

action against a passenger who had a seat on the aircraft (e.g., a

designated priority seat) who refused to move to another seat to

accommodate a disabled passenger when the carrier requested it.

The Department is also modifying the types of situations in which

airlines are required to provide seating accommodations. One important

clarification is that carriers are required to provide seating

accommodations only to passengers who self-identify as needing one of

the specified accommodations. It is not unreasonable to ask passengers

seeking a particular accommodation to take the initiative to specify

the nature of their need for it. This will also mitigate the problem

cited by carriers of having their personnel asking awkward or

inappropriate questions about passengers' disabilities.

Paragraph (a) of the new rule sets forth four situations in which

seat assignment accommodations are required. As suggested by

commenters, the first accommodation (seating in a row with a movable

aisle armrest) is clarified to apply to people who board the aircraft

using an aisle chair and who cannot readily transfer over a fixed

armrest. The third accommodation--a seat in either a bulkhead or non-

bulkhead row for someone traveling with a service animal--is unchanged

from the NPRM. It was not the subject of any specific comment. Some

passengers with service animals prefer bulkhead rows, while others do

not. The point of this accommodation is to allow the passenger to

choose which type of row he or she and the service animal will occupy.

The second accommodation has been expanded in response to comments.

In the NPRM, it was limited to persons traveling with a personal care

attendant. Commenters pointed out that a deaf person traveling with an

interpreter was in a similar situation. A blind person traveling with a

reader also may need to have the person next to him or her during the

flight. Unless a blind or deaf person were also eligible for a specific

seat location as an accommodation--for example, because the person was

a wheelchair user or was traveling with a service animal--the pair of

seats could be anywhere in the aircraft.

In each case, the accommodation--a seat for the assistant next to

the individual with a disability--is required to be provided only if

the assistant is actually going to provide services to the disabled

passenger during the course of the flight. Someone who is traveling to

the same destination as the person with a disability to perform

services there, but who will not actually perform services on the

flight, is not covered by this paragraph.

Finally, for a person with a fused or immobilized leg (e.g., a

surgically fused leg), the required accommodation is a bulkhead row

seat or some other seat providing additional legroom for the leg. This

provision is the same as in the NPRM, except for a clarification that

the seat must be provided on the side of the aircraft aisle that is

more useful to the passenger.

All these circumstances are likely to be visible to carrier

personnel, and we agree with commenters that documentation of these

circumstances is unnecessary and burdensome. We do not agree with the

carrier comment that identifying these categories somehow discriminates

against passengers with other disabilities. In any disability law or

regulation, accommodations are specific to the specific disabilities in

question. Having a ramp into a building for wheelchair users does not

discriminate against ambulatory deaf people. Braille signage does not

discriminate against individuals with mental disabilities. Nor does

requiring a seat in a row with a movable armrest for a wheelchair user

discriminate against blind passengers.

In the course of implementing the ACAA's nondiscrimination

requirement, the Department has already required numerous

accommodations for persons with specific disabilities, from movable

aisle armrests, boarding assistance and wheelchair storage requirements

for persons with mobility impairments to information in accessible

formats for visually impaired persons. Seating accommodations are just

one more set of such specific accommodations, of the sort that carrier

comments, in the context of their argument concerning the general

nondiscrimination requirement, agreed that the Department had the

authority to impose.

The Department recognizes, as commenters pointed out, that some

individuals with disabilities who do not fit into the four categories

listed in paragraph (a) (e.g., individuals whose disabilities or needs

for accommodation

[[Page 10534]]

are not obvious to observers) may need seat assignment accommodations

in order to readily access and use airline services. No set of

categories can ever encompass every possible individual or situation.

At the same time, the Department wants to define the requirements for

accommodations sufficiently narrowly as to facilitate implementation

and limit the possibility of abuse. We also understand the objections

of disability community commenters to requirements for documentation.

To address all these concerns, the final rule provides a different

mechanism for individuals with disabilities other than those in the

four categories specified in paragraph (a) who need seat assignment

accommodations in order to readily access and use airline services.

Such individuals will be assigned, on their request, any seat that has

not already been assigned to another passenger, even if that seat is

not otherwise available to the general passenger population at the time

of the request. Such individuals would not be entitled to be assigned

seats ``blocked'' for passengers specified in paragraph (a). If

assigned to a designated priority seat, such an individual could, like

other passengers, be reassigned to another seat if needed to

accommodate a passenger specified in paragraph (a).

For example, suppose there are 100 seats available on a given

flight operated by a carrier that blocks seats to provide the

accommodations required by paragraph (a). The seats on the flights fall

into three categories: Category A consists of 10 seats blocked for

persons with disabilities specified in paragraph (a); Category B

consists of 20 seats which are held for assignment to frequent fliers

and full-fare passengers; Category C consists of the rest of the seats,

which are available for assignment to all passengers. A person with a

disability not specified in paragraph (a) calls for a reservation,

self-identifying as to the nature of his or her disability and the need

for a particular kind of seat assignment to accommodate the disability.

The carrier would not assign the person a Category A seat. The carrier

would assign any seat in Category B or C that successfully provided the

needed accommodation and that had not already been assigned to someone,

even though Category B seats are not normally made available to persons

other than frequent fliers or full-fare passengers at this stage of the

process. The carrier would not be required to reassign other passengers

who had already received their seat assignments.

Carriers using the designated priority seats mechanism to comply

with paragraph (a) would follow a somewhat similar pattern. In this

case, Category A consists of designated priority seats. A person with a

disability not specified in paragraph (a) calls for a reservation,

self-identifying as to the nature of his or her disability and the need

for a particular kind of seat assignment to accommodate the disability.

The carrier would assign a seat in any of the three categories that

successfully provided the needed accommodation and that had not already

been assigned to someone, even though some or all Category A or B seats

are not normally made available to other than frequent fliers or full-

fare passengers at this stage of the process. The carrier would not be

required to reassign other passengers who had already received their

seat assignments. In the event that the passenger was assigned a

Category A seat, the passenger would receive the same notice as non-

disabled persons assigned Category A seats that he or she was subject

to reassignment if needed to accommodate someone with a disability

specified in paragraph (a).

Carriers that do not assign seats in advance would simply

accommodate passengers with disabilities not specified in paragraph (a)

in the same way as those who are, affording them priority in the

preboarding process.

Carriers are not required to provide the seating accommodations

specified in this section if the passenger does not request them. As

noted in the NPRM, carriers are not required to provide more than one

seat to a passenger per ticket (e.g., carriers could require a very

obese passenger, who occupies the space of two seats, to purchase two

tickets).

The Department realizes that carriers may need some time to

implement the requirements of this section. For this reason, the final

rule establishes a compliance date of six months from the effective

date of the rule.

Collapsible Electric Wheelchairs

NPRM Proposals

The NPRM proposed to add collapsible, folding, or break-down

electric wheelchairs to existing provisions requiring in-cabin storage

for manual wheelchairs. These chairs would be regarded in the same way

as manual wheelchairs are for in-cabin storage, and would be subject to

FAA rules for carry-on items. In addition, a provision was proposed to

be added to the section of the rule on battery stowage, providing that

when a wheelchair was to be folded or broken down, the carrier would

remove the battery and fold the wheelchair for in-cabin storage.

Carriers would continue to follow DOT hazardous materials rules with

respect to removal, packaging, and stowing of batteries.

Comments and DOT Response

There was less disagreement about this proposal than others in the

NPRM. Both carriers and disability community commenters generally

supported it. A number of these commenters, as well as some battery

manufacturers, expressed concern about the issue of how to handle

batteries. This has been a troublesome issue over time, primarily

because carriers have had difficulty in distinguishing spillable from

nonspillable batteries and believe they cannot rely on passengers'

representations on the matter. The two kinds of batteries are treated

differently under DOT hazardous materials rule. Several commenters

sought additional clarification of rules concerning batteries.

One suggestion that has merit is that batteries labeled by

manufacturers as nonspillable, as provided in a DOT hazardous materials

rule (49 CFR 173.159(d)(2)), should be carried in the cabin. Carriers

would be authorized to detach, package, and carry as cargo batteries

that are not so labeled. Existing advance notice requirements for

handling electric wheelchairs would continue to apply, regardless of

whether the wheelchair itself were to be stowed in the cabin or as

cargo. As a general matter, carriers and passengers should be aware

that, except for the new reference to 49 CFR Sec. 173.159(d)(2),

today's amendment does not alter existing rules concerning batteries,

but concerns merely the stowage location for the wheelchair itself.

The Department notes that the one-hour advance check-in provision

of Sec. 382.41(g)(1) would apply to electric wheelchairs that are

carried in the cabin as well as to those that are carried as checked

items. In addition, while the rule provides that carriers would not

treat manufacturer-labeled nonspillable batteries as spillable

batteries, there still may be circumstances under which carriers might

have to take steps to prepare batteries for safe transportation (e.g.,

disconnect and tape connections to prevent possible sparking). Of

course, if a labeled non-spillable battery appeared to be damaged or

leaking, the carrier could determine that, for safety's sake, it was

necessary to package it separately (or, even deny transportation for

the battery if the potential safety hazard were serious enough).

Disability community commenters said there were continuing problems

[[Page 10535]]

with airlines' handling of wheelchairs, especially electric

wheelchairs. Carriers too often fail to do the job properly, they

asserted. One commenter asked for additional training requirements for

carrier personnel concerning handling of wheelchairs; we do not believe

that additional specific requirements are necessary at this time, given

that the training to proficiency requirements already in the rule

encompass handling of wheelchairs.

Some carrier comments suggested there should be discretion

exercised by carrier personnel concerning on-board stowage of

wheelchairs or parts of them, because the chairs or parts may be heavy

or bulky, exceeding the capacity of storage bins and other spaces. The

Department does not believe that any special rule language is necessary

to accommodate this concern. Wheelchairs and parts stowed in the cabin

must comply with FAA carry-on baggage requirements. In the enforcement

of such FAA requirements, carrier personnel can exercise the same

discretion concerning wheelchairs or parts that they do with respect to

other items that passengers bring on board (though wheelchairs and

other assistive devices do not count against a passenger's carry-on bag

limit). Carriers should note, however, that Sec. 382.41(e)(2) gives

wheelchairs priority over other passengers' carry-on luggage.

Regulatory Analyses and Notices

This final rule is not a significant rule under Executive Order

12866 or the Department's Regulatory Policies and Procedures. The

Department certifies that this rule, if adopted, would not have a

significant economic impact on a substantial number of small entities.

The basis for this statement is that the modifications to airline

practices and procedures that the rule requires involve little

additional cost or burden to carriers or airports, whatever their size.

The Department has determined that there would be not be sufficient

Federalism impacts to warrant the preparation of a Federalism

Assessment. As it implements a nondiscrimination statute, this rule is

not subject to scrutiny under the Unfunded Mandates Act.

List of Subjects in 14 CFR Part 382

Aviation, Handicapped.

Issued this 24th day of February, 1998, at Washington, D.C.

Rodney E. Slater,

Secretary of Transportation.

For the reasons set forth in the preamble, the Department amends 14

CFR part 382 as follows:

PART 382--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN AIR

TRAVEL

1. The authority citation for 14 CFR part 382 would continue to

read as follows:

Authority: 49 U.S.C. 41702, 47105, and 41712.

2. In 14 CFR 382.7, a new paragraph (c) would be added to read as

follows:

Sec. 382.7 General prohibition of discrimination.

* * * * *

(c) Carriers shall, in addition to meeting the other requirements

of this part, modify policies, practices, or facilities as needed to

ensure nondiscrimination, consistent with the standards of section 504

of the Rehabilitation Act, as amended. Carriers are not required to

make modifications that would constitute an undue burden or would

fundamentally alter their program.

3. A new Sec. 382.38 is added, to read as follows:

Sec. 382.38 Seating accommodations.

(a) On request of an individual who self-identifies to a carrier as

having a disability specified in this paragraph, the carrier shall

provide the following seating accommodations, subject to the provisions

of this section:

(1) For a passenger who uses an aisle chair to access the aircraft

and who cannot readily transfer over a fixed aisle armrest, the carrier

shall provide a seat in a row with a movable aisle armrest.

(2) The carrier shall provide a seat next to a passenger traveling

with a disability for a person assisting the individual in the

following circumstances:

(i) When an individual with a disability is traveling with a

personal care attendant who will be performing a function for the

individual during the flight that airline personnel are not required to

perform (e.g., assistance with eating);

(ii) When an individual with a vision impairment is traveling with

a reader/assistant who will be performing functions for the individual

during the flight; or

(iii) When an individual with a hearing impairment is traveling

with an interpreter who will be performing functions for the individual

during the flight.

(3) For an individual traveling with a service animal, the carrier

shall provide, as the individual requests, either a bulkhead seat or a

seat other than a bulkhead seat.

(4) For a person with a fused or immobilized leg, the carrier shall

provide a bulkhead seat or other seat that provides greater legroom

than other seats, on the side of an aisle that better accommodates the

individual's disability.

(b) A carrier that provides advance seat assignments shall comply

with the requirements of paragraph (a) of this section by any of the

following methods:

(1) The carrier may ``block'' an adequate number of the seats used

to provide the seating accommodations required by this section.

(i) The carrier shall not assign these seats to passengers not

needing seating accommodations provided under this paragraph until 24

hours before the scheduled departure of the flight.

(ii) At any time up until 24 hours before the scheduled departure

of the flight, the carrier shall assign a seat meeting the requirements

of this section to an individual who requests it.

(iii) If an individual with a disability does not make a request at

least 24 hours before the scheduled departure of the flight, the

carrier shall meet the individual's request to the extent practicable,

but is not required to reassign a seat assigned to another passenger in

order to do so.

(2) The carrier may designate an adequate number of the seats used

to provide seating accommodations required by this section as

``priority seats'' for individuals with disabilities.

(i) The carrier shall provide notice that all passengers assigned

these seats (other than passengers with disabilities listed in

paragraph (a) of this section) are subject to being reassigned to

another seat if necessary to provide a seating accommodation required

by this section. The carrier may provide this notice through its

computer reservation system, verbal information provided by reservation

personnel, ticket notices, gate announcements, counter signs, seat

cards or notices, frequent-flier literature, or other appropriate

means.

(ii) The carrier shall assign a seat meeting the requirements of

this section to an individual who requests the accommodation and checks

in at least one hour before the scheduled departure of the flight. If

all designated priority seats that would accommodate the individual

have been assigned to other passengers, the carrier shall reassign the

seats of the other passengers as needed

[[Page 10536]]

to provide the requested accommodation.

(iii) If the individual with a disability does not check in at

least an hour before the scheduled departure of the flight, the carrier

shall meet the individual's request to the extent practicable, but is

not required to reassign a seat assigned to another passenger in order

to do so.

(c) On request of an individual who self-identifies to a carrier as

having a disability other than one in the four categories listed in

paragraph (a) of this section and as needing a seat assignment

accommodation in order to readily access and use the carrier's air

transportation services, a carrier that assigns seats in advance shall

provide such an accommodation, as described in this paragraph.

(1) A carrier that complies with paragraph (a) this section through

the ``seat-blocking'' mechanism of paragraph (b)(1) of this section

shall implement the requirements of this paragraph as follows:

(i) When the passenger with a disability not described in paragraph

(a) of this section makes a reservation more than 24 hours before the

scheduled departure time of the flight, the carrier is not required to

offer the passenger one of the seats blocked for the use of passengers

with disabilities listed under paragraph (a) of this section.

(ii) However, the carrier shall assign to the passenger any seat,

not already assigned to another passenger, that accommodates the

passenger's needs, even if that seat is not available for assignment to

the general passenger population at the time of the request.

(2) A carrier that complies with this section through the

``designated priority seats'' mechanism of paragraph (b)(2) of this

section shall implement the requirements of this paragraph as follows:

(i) When a passenger with a disability not described in paragraph

(a) of this section makes a reservation, the carrier shall assign to

the passenger any seat, not already assigned to another passenger, that

accommodates the passenger's needs, even if that seat is not available

for assignment to the general passenger population at the time of the

request.

(ii) If such a passenger is assigned to a designated priority seat,

he or she is subject to being reassigned to another seat as provided in

paragraph (b)(2) of this section.

(d) A carrier that does not provide advance seat assignments shall

provide seating accommodations for persons described in paragraphs (a)

and (c) of this section by allowing them to board the aircraft before

other passengers, including other ``pre-boarded'' passengers, so that

the individuals needing seating accommodations can select seats that

best meet their needs if they have taken advantage of the opportunity

to pre-board.

(e) A carrier may comply with the requirements of this section

through an alternative method not specified in paragraphs (b) through

(d) of this section. A carrier wishing to do so shall obtain the

written concurrence of the Department of Transportation (Office of the

Secretary) before implementing the alternative method.

(f) The carrier shall assign a seat providing an accommodation

requested by an individual with a disability, as specified in this

section, even if the seat is not otherwise available for assignment to

the general passenger population at the time of the individual's

request.

(g) If the carrier has already provided a seat to an individual

with a disability to furnish an accommodation required by paragraph (a)

or (c) of this section, the carrier shall not reassign that individual

to another seat in response to a subsequent request from another

individual with a disability, without the first individual's consent.

(h) In no case shall any individual be denied transportation on a

flight in order to provide accommodations required by this section.

(i) Carriers are not required to furnish more than one seat per

ticket or to provide a seat in a class of service other than the one

the passenger has purchased.

(j) In responding to requests from individuals for accommodations

required by this section, carriers shall comply with FAA safety rules,

including those pertaining to exit seating (see 14 CFR 121.585 and

135.129).

(k) Carriers are required to comply with this section beginning

August 31, 1998.

Sec. 382.41 [Amended]

4. In 14 CFR 382.41(b), the citation ``49 CFR 173.260(d)'' is

amended to read ``49 CFR 173.159(d).''

5. In 14 CFR 382.41(e), the introductory paragraph is amended by

adding, after the word ``wheelchairs'', the following words:

``(including collapsible or break-down battery-powered wheelchairs,

subject to the provisions of paragraph (g)(5) of this section) as

carry-on baggage''.

6. In 14 CFR 382.41(e)(2), in the first sentence, the word ``an''

is added before the word ``aircraft'' and a comma and the words

``collapsible, or break-down'' are added after the word ``folding,'' in

both places where that word occurs.

7. In 14 CFR 382.41(e)(3), a comma and the words ``collapsible, or

break-down'' are added after the word ``folding,''

8. In 14 CFR 382.41(f), the words ``When passenger compartment

storage is not available'' are removed and the following words are

added in their place: ``When a folding, collapsible, or break-down

wheelchair cannot be stowed in the passenger cabin as carry-on

baggage,''.

9. In 14 CFR 382.41, paragraph (g) is revised and paragraph (h) is

added to read as follows:

Sec. 382.41 Stowage of personal equipment.

* * * * *

(g) Whenever baggage compartment size and aircraft airworthiness

considerations do not prohibit doing so, carriers shall accept a

passenger's battery-powered wheelchair, including the battery, as

checked baggage, consistent with the requirements of 49 CFR

175.10(a)(19) and (20) and the provisions of paragraph (f) of this

section.

(1) Carriers may require that qualified individuals with a

disability wishing to have battery-powered wheelchairs transported on a

flight (including in the cabin) check in one hour before the scheduled

departure time of the flight. If such an individual checks in after

this time, the carrier shall nonetheless carry the wheelchair if it can

do so by making a reasonable effort, without delaying the flight.

(2) If the battery on the individual's wheelchair has been labeled

by the manufacturer as non-spillable as provided in 49 CFR

173.159(d)(2), or if a battery-powered wheelchair with a spillable

battery is loaded, stored, secured and unloaded in an upright position,

the carrier shall not require the battery to be removed and separately

packaged. Notwithstanding this requirement, carriers may remove and

package separately any battery that appears to be damaged or leaking.

(3) When it is necessary to detach the battery from the wheelchair,

carriers shall, upon request, provide packaging for the battery meeting

the requirements of 49 CFR 175.10(a)(19) and (20) and package the

battery. Carriers may refuse to use packaging materials or devices

other than those they normally use for this purpose.

(4) Carriers shall not drain batteries.

(5) At the request of a passenger, a carrier shall stow a folding,

break-down or collapsible battery-powered wheelchair in the passenger

cabin stowage area as provided in paragraph

[[Page 10537]]

(e) of this section. If the wheelchair can be stowed in the cabin

without removing the battery, the carrier shall not remove the battery.

If the wheelchair cannot be stowed in the cabin without removing the

battery, the carrier shall remove the battery and stow it in the

baggage compartment as provided in paragraph (g)(3) of this section. In

this case, the carrier shall permit the wheelchair, with battery

removed, to be stowed in the cabin.

(h) Individuals with disabilities shall be permitted to provide

written directions concerning the disassembly and reassembly of their

wheelchairs.

[FR Doc. 98-5525 Filed 3-3-98; 8:45 am]

BILLING CODE 4910-62-P