Nondiscrimination on the Basis of Disability in Air Travel; Compensation for Damage to Wheelchairs and Other Assistive Devices

DEPARTMENT OF TRANSPORTATION

14 CFR Parts 254 and 382

[Docket OST-99-5099]

RIN 2105-AC77

Nondiscrimination on the Basis of Disability in Air Travel;

Compensation for Damage to Wheelchairs and Other Assistive Devices

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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SUMMARY: The Department is amending its rules implementing the Air

Carrier Access Act of 1986 (ACAA) to lift an existing cap on the amount

of compensation airlines have to pay to passengers for loss or damage

of their wheelchairs and other assistive devices. The rule is intended

to provide additional relief to passengers who use expensive assistive

devices that are lost, destroyed or damaged in the course of airline

travel.

EFFECTIVE DATE: This final rule becomes effective on September 1, 1999.

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

General Counsel for Regulation and Enforcement, Department of

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

(202) 366-9306 (voice); (202) 755-7687 (TDD); 202-366-9313 (fax);

[email protected] (e-mail).

SUPPLEMENTARY INFORMATION: This final rule concerns the issue of

compensation for loss of or damage to wheelchairs or other assistive

devices. The current regulation provides that:

With respect to domestic flights, carriers shall not limit

liability for loss, damage or delay concerning wheelchairs or other

mobility aids to any amount less than twice the liability limits

established for passengers' luggage under 14 CFR Part 254. (14 CFR

382.43(b))

This means that carriers are not required to pay compensation exceeding

$2500 for loss of or damage to wheelchairs or other assistive devices,

given the present $1250 liability limit for luggage that Part 254

permits carriers to impose in domestic transportation. (The Department

has recently proposed raising this limit to $2500, which would have the

effect, under the present ACAA rule, of raising the liability limit for

wheelchairs and other assistive devices to $5000. ) People with

disabilities have complained that this does not provide adequate

compensation for the loss of or serious damage to expensive equipment,

such as power wheelchairs that may cost $15,000 or more. Given that a

passenger whose wheelchair is lost or seriously damaged will lose his

or her mobility at the destination, people with disabilities believe

that the Department should require airlines to do more, such as pay

full compensation for the loss and make repair or loaner service

available.

The Department considered this issue in the original ACAA

rulemaking (see 55 FR 8038; March 6, 1990). In response to similar

disability group comments at that time, the Department responded that

requiring carriers to pay full replacement value did not sufficiently

recognize the ability of passengers to purchase insurance for such

expensive items. Consequently, the final rule permitted airlines to cap

their liability at twice the liability limit for general baggage.

On February 17, 1999, the Department reopened the issue and

published a notice of proposed rulemaking (NPRM) in the Federal

Register (64 FR 7833). Based on anecdotal information, the Department

believed that the majority of wheelchairs used in air travel are manual

wheelchairs, many of which cost less than $2500. However, the

Department further believed that other travelers used power

wheelchairs, which typically are stowed as checked baggage and many of

which, if lost, damaged, or destroyed, could cost substantially more

than $2500 to repair or replace (e.g., over $13,000 in one case brought

to our attention). However, we believed that there would be relatively

few instances of wheelchair loss or damage that would exceed $2500,

limiting the cost exposure to airlines of removing the current cap.

Comments

The Department received thirty-two comments from individuals,

associations, and interest groups. These included the Air Transport

Association of America (ATA), representing the views of major airlines,

and various individuals and groups in the disability community.

Claim Experience

Both the ATA and the disability community agreed that the majority

of damage to wheelchairs occurs to manual units, with repair or

replacement costs under $2500. The ATA said that ATA member airlines

receive less than fifty complaints a year related to wheelchairs and

ninety percent of them are for less than $500. The ATA also reported

that claims for standard wheelchairs average $450 to $500 per claim and

claims for electric wheelchairs average $1500 per claim. ATA mentioned

that its members had voluntarily paid a few claims in excess of

$20,000. Also, the Eastern Paralyzed Veterans Association (EPVA), which

does wheelchair repairs at New York City airports, reported that it

repaired 31 wheelchairs in 1998, at an average cost of $467.95 per

repair.

Elimination of Liability Limit

A common theme throughout the disability community comments was

that wheelchairs and other assistive devices are not ordinary luggage.

Disabled people must take their assistive devices because their

mobility, independence, and health depend on them. When a disabled

person travels with an air carrier, he or she places his or her means

of mobility and livelihood into the hands of the airline. According to

some of the comments, airline personnel sometimes disregard the

instructions given to them by the passenger concerning how to properly

handle the assistive device, or may misunderstand the instructions

because they are not fluent in English. Furthermore, commenters said

that fear of having to make an expensive repair if their device is

damaged may deter some people from traveling by air.

Disability community comments also asserted that the amount of

damages should be the full replacement or repair cost because

depreciation in value is too hard to calculate. They also asked for

some sort of system through which the airline would provide a loaner

device during the period when the passenger's own device was being

repaired. Some comments also addressed the issue of insurance. The

comments asserted that coverage for assistive devices is often excluded

from homeowner policies. They said it would be unfair to require

passengers to purchase extra insurance for something they had no choice

but to take with them. Finally, these comments expressed a belief that

lifting the liability cap will provide an incentive for airlines to

train their employees to comply with ACAA regulations and properly

handle assistive devices.

The ATA's comment said that the proposed rule did not address all

of the issues associated with wheelchair handling. Instead of a final

rule, ATA supported issuing a broader advance notice of proposed

rulemaking (ANPRM) on the general issue of wheelchair handling. ATA

also suggested that passengers should remain responsible for some part

of the risk of transporting expensive equipment, such as through

obtaining insurance.

ATA stressed three other points. First, a two-hour advance check in

deadline should be required for people wishing to transport an

assistive device. This extra time would allow airlines to prepare

adequately for carrying of these

[[Page 41782]]

devices, while avoiding flight delays. Additional time is particularly

important if more than one electric wheelchair is to be transported on

the same flight. Second, ATA said that passengers should be required to

provide written instructions on how to disassemble batteries and

delicate units. Third, ATA questioned the practicality of requiring

airlines to maintain an adequate supply of wheelchairs at more than 500

commercial airports in order to provide loaners. ATA pointed out that

local supply stores are available if a loaner is needed.

Cost Calculation

In the NPRM, the Department sought comment on whether additional

guidance is necessary on how compensation should be calculated (e.g.,

depreciated vs. replacement cost). Disability community comments said

that there is no market for used, customized assistive devices, thus

making depreciation in value too hard to calculate. Most of these

comments supported requiring airlines to pay the full replacement cost

for a destroyed wheelchair (i.e., the cost of a new wheelchair,

regardless of the value of the device that had been destroyed). ATA did

not comment specifically on this issue, but did express concern about

paying for damage that was done before the chair was given to the

airline for transport. ATA also expressed concern that lifting the

liability cap would allow higher consequential damages to be assessed

against carriers in claims resulting from damaged or destroyed

wheelchairs.

DOT Response

The Department is persuaded by the comments of the disability

community that wheelchairs and other assistive devices should be viewed

differently from other baggage. For wheelchair users, their devices are

essential, not only to the purpose of a trip, but for all daily

activities. The information provided in the comments confirms the

Department's impression that there are likely to be relatively few

instances where carriers will have to pay large claims, even in the

absence of the current regulatory provision allowing carriers to limit

their liability. For this reason, the cost exposure to carriers of

changing the rule will not be large.

On the other hand, from the perspective of an individual whose

expensive electric wheelchair is lost or destroyed, the expense of

replacing it can be very difficult to bear. Consequently, we believe

that the fairest solution is to remove the current liability cap. The

issue is a straightforward one, which commenters discussed thoroughly,

and we see no need for an ANPRM as ATA suggested. Wheelchair users may

still want to purchase insurance, which may expedite the payment of

claims. The ultimate responsibility for damage that occurs while a

passenger's device is in the hands of the carrier should rest with the

carrier, however.

Under existing DOT baggage rules, carriers are responsible for

consequential damages (see 14 CFR part 254). There is no DOT

administrative mechanism for awarding these damages; they would be paid

through the carriers' claims processes or awarded by the courts. This

rule, while removing a regulatory provision allowing carriers to limit

their liability for consequential as well as other damages, would not

change this basic pattern. It is possible that, as some disability

community comments suggested, the possibility of larger consequential

damage awards would increase carriers' incentive to ensure that

personnel who handle wheelchairs are well trained.

With respect to the way in which costs of settlements are

calculated, the Department is persuaded by disability community

comments that it is difficult to establish an accurate depreciated

value for electric wheelchairs. In the absence of a significant

aftermarket for these often individually-tailored devices, there is no

parallel to a ``blue book'' value that can be accurately assigned. On

the other hand, it may not be fair to airlines to assess the current

replacement cost of a device. For example, a wheelchair that cost

$10,000 two years ago may today, because of changes in the equipment or

in the market for new wheelchairs, cost $12,000. The $2000 difference

in the purchase price of the device cannot be attributed to any action

on the airlines' part. For this reason, in the case of a device that is

lost or damaged so badly that it must be replaced, the airline would be

responsible for the original purchase price ($10,000 in the example

above) rather than the total cost of a new device. The statement of

this criterion in the rule refers only to the cost of repair or

replacement of the device itself; it does not, for example, establish a

limit on consequential damages.

The Department believes that requiring the payment of the original

purchase price strikes a reasonable balance between the current

industry practice of using depreciated value and the proposal,

advocated by disability community comments, of requiring carriers to

pay the current replacement cost of a wheelchair. In addition, this

method should simplify the payment of claims and minimize the number

and scope of disputes between passengers and airlines. As is the case

today, carriers would remain free to require passengers to document the

original purchase price of a lost or damaged assistive device (e.g.,

purchase receipt, credit card statement, canceled check). In a case

where an assistive device is damaged but repairable, the proper measure

of compensation is quite clearly the cost of the repair. The Department

believes that airlines can avoid the potential problem of being asked

to pay for pre-existing damage by inspecting the device and documenting

anything that is wrong with it when the passenger checks in, as

carriers commonly do with baggage.

The Department's ACAA rule is not intended to require compensation,

to any greater extent than courts might award, merely for minor

cosmetic damage to wheelchairs or assistive devices. Neither this

provision nor --382.43(a), which requires carriers to return

wheelchairs and assistive devices to passengers in the condition

received by the carrier, would require the carrier, for example, to

replace a wheelchair frame that had suffered a small dent or scratch

that did not impair the structural soundness or functioning of the

device.

In the NPRM, the Department sought comment on whether it is

desirable and practical to require that airlines provide a ``loaner''

device during the period when the damaged device is being repaired or

replaced. While a wheelchair is essential equipment, without which the

passenger can be stranded, the Department agrees with the ATA that it

would be impractical to require each airline to maintain an adequate

supply of wheelchairs at more than 500 commercial airports. As pointed

out in the comments, many devices are customized to fit an individual's

specific needs, and it could be extremely burdensome to require

airlines to come up with the same or similar type of wheelchair.

Information about where to obtain a ``loaner'' is available in many

locations from the disability community, medical equipment suppliers,

or the airlines themselves. We note that the cost of a loaner could

constitute consequential damages for which, in some circumstances, a

carrier could be liable.

The ATA recommended permitting carriers to require a two-hour

advance check-in for passengers wishing to transport electric

wheelchairs. The Department does not have, nor did the ATA present, any

data to support a contention that a mandatory check-in period of this

length would have a

[[Page 41783]]

significant effect on preventing damage to wheelchairs. On the other

hand, carrier personnel are more likely to do a good job of preparing

the wheelchair for transportation if they are not trying to do so at

the last minute.

The Department's existing ACAA regulation has two provisions that

can help carriers avoid ``last-minute'' problems. First,

Sec. 382.41(g)(1) permits carriers to require passengers wanting to

transport electric wheelchairs to check in an hour before the scheduled

departure time of the flight. This is consistent with the now-pervasive

industry recommendation that all passengers arrive an hour before

flight time.

As an interpretive matter, we emphasize that the purpose of the

one-hour advance check-in deadline is to give carrier personnel enough

time to prepare an electric wheelchair for transportation. Therefore,

in this context, checking in means not just reporting at the gate or

ticket counter but actually turning the wheelchair over to carrier

personnel to prepare it for shipment. If a passenger checks in at the

gate at 1:00 for a 2:00 flight, but does not surrender the wheelchair

to carrier personnel until 1:45, the value of the one-hour advance

check-in is diminished. Of course, the airline has the responsibility

of providing the passenger, on request, a boarding chair and any

necessary assistance in boarding of the aircraft.

Second, Sec. 382.41(g)(2) states that if a passenger's wheelchair

battery has been labeled by the manufacturer as non-spillable, or if

the wheelchair can be loaded, stored, and secured in an upright

position, the carrier shall not require the battery to be removed and

separately packaged. In such instances, the airline need not

disassemble the chair or separately box the battery, but only

disconnect the battery and tape or otherwise insulate the battery

terminals to prevent short circuits. By following this rule, carriers

would not only reduce the probability of damage to the chair, but also

reduce significantly the time it takes to stow the wheelchair and

return it to the passenger on arrival.

The ATA felt that passengers should be required to provide written

instructions on the assembly and disassembly of batteries and other

delicate equipment. The current rule authorizes individuals to provide

written instructions concerning the assembly and disassembly of their

wheelchairs, and we believe it is a good idea for them--and perhaps for

wheelchair manufacturers as well--to do so. However, given that some

passengers may not be fluent in English, or that some disabilities may

impair an individual's ability to provide such instructions, or that

documents can get lost, we do not believe it would be prudent to

require passengers to provide written instructions or to allow carriers

to require it as a condition for transportation or compensation.

In order to avoid confusion for readers of 14 CFR part 254, the

Department's baggage liability regulation, we have added a sentence

pointing out that part 254's baggage liability limit does not apply to

wheelchairs and other assistive devices used by passengers with

disabilities.

Regulatory Analyses and Notices

This final rule is not a significant rule under Executive Order

12866 or a significant rule under the Department's Regulatory Policies

and Procedures. Based on the data currently available to the Department

and received in the comments, the Department estimates that the costs

associated with this rule are not significant. The ATA submitted data

indicating that ATA member airlines receive less than fifty complaints

a year related to wheelchairs and that ninety percent of these claims

are for less than $2500. Furthermore, the ATA asserts that virtually

all of its claims are paid in full, even the ones above $2500.

Therefore, the incremental costs of this rule are likely to be minimal.

The Department certifies that this rule will not have a significant

economic effect on a substantial number of small entities. The basis

for this statement is the probability that the overall national annual

costs would be minimal. Also, the Department does not believe that

there would be sufficient Federalism impacts to warrant the preparation

of a Federalism Assessment.

List of Subjects

14 CFR Part 254

Air carriers, Consumer protection, Freight, Reporting and

recordkeeping requirements.

14 CFR Part 382

Air carriers, Civil rights, Individuals with disabilities,

Reporting and recordkeeping requirements.

Issued This 23rd Day of July 1999, at Washington, DC

Rodney E. Slater,

Secretary of Transportation.

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

CFR parts 254 and 382 as follows:

PART 254--DOMESTIC BAGGAGE LIABILITY

1. The authority citation for 14 CFR part 254 continues to read as

follows:

Authority: Secs. 204, 403, 404 and 411, Pub. L. 85-726, as

amended, 72 Stat. 743, 758, 760, 769; 49 U.S.C. 1324, 1373, 1374,

1381.

2. Section 254.4 is amended by adding a sentence at the end of the

section to read as follows:

Sec. 254.4 Carrier liability.

* * * Pursuant to 14 CFR 382.43(b), this limit does not apply to

wheelchairs or other assistive devices used by passengers with

disabilities.

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

TRAVEL

3. The authority citation for 14 CFR part 382 continues to read as

follows:

Authority: 49 U.S.C. 41702, 41705, and 41712.

4. In Sec. 382.43, paragraph (b) is revised to read as follows:

Sec. 382.43 Treatment of mobility aids and assistive devices.

* * * * *

(b) With respect to domestic transportation, the baggage liability

limits of 14 CFR part 254 do not apply to liability for loss, damage,

or delay concerning wheelchairs or other assistive devices. The

criterion for calculating the compensation for a lost, damaged, or

destroyed wheelchair or other assistive device shall be the original

purchase price of the device.

* * * * *

[FR Doc. 99-19447 Filed 7-30-99; 8:45 am]

BILLING CODE 4910-62-P