[Federal Register Volume 61, Number 213 (Friday, November 1, 1996)]
[Rules and Regulations]
[Pages 56409-56425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28084]


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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]
BILLING CODE 4910-62-P