[Federal Register Volume 63, Number 42 (Wednesday, March 4, 1998)]
[Rules and Regulations]
[Pages 10528-10537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5525]


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DEPARTMENT OF TRANSPORTATION

14 CFR Part 382

[Docket OST-96-1880]
RIN 2105-AC28


Nondiscrimination on the Basis of Disability in Air Travel

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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SUMMARY: The Department is amending its rules implementing the Air 
Carrier Access Act of 1986. The amendments establish procedures for 
providing seating accommodations for individuals with disabilities, 
clarify the general nondiscrimination obligations of carriers, and 
provide for the in-cabin stowage of collapsible electric wheelchairs 
that can be stowed consistent with carry-on baggage requirements.

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

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant 
General Counsel for Regulation and Enforcement, Department of 
Transportation, 400 7th Street, SW., Room 10424, Washington, DC, 20590. 
(202) 366-9306 (voice); (202) 755-7687 (TDD).


[[Page 10529]]


SUPPLEMENTARY INFORMATION:

Background

    On November 1, 1996, the Department published a notice of proposed 
rulemaking (NPRM) asking for comment on a number of issues. The NPRM 
proposed to require seating accommodations for certain individuals with 
disabilities, to clarify the general nondiscrimination obligations of 
carriers, and to provide for the in-cabin carriage of electric 
wheelchairs that could be accommodated consistent with carry-on baggage 
rules. The Department is today issuing final rules based on these 
proposals, with modifications responsive to comments we received.
    The preamble to the November 1, 1996, NPRM also asked for public 
comment on two matters concerning which we had received suggestions or 
petitions from members of the public. These were additional 
accommodations for persons with hearing impairments (e.g., captioning 
of in-flight movies, on-board TDDs where air phones are made available 
to other passengers, better message service in gate areas) and the 
provision of a smoke-free accessible path through airports for persons 
with respiratory disabilities.
    The Department received a number of comments on the issue of 
accommodations for hearing impairments. We are continuing to consider 
whether to propose requirements for accommodations of this type, but we 
are deferring decision on this matter until a later time.
    The Department received a large number of comments concerning the 
petitions for accessible paths through airports for persons with 
respiratory disabilities, many of which went beyond the issues directly 
raised by the petitions, reflecting the ongoing public debate about 
smoking by taking broad anti-smoking or ``smokers' rights'' positions. 
(Some of the comments from anti-smoking groups opposed regulation in 
this area, on the view that existing law already requires action by 
airports to ban or limit smoking.) While continuing to consider the 
issue the petitions raised, the Department is deferring a decision on 
whether to propose rules on this subject until a later time. In this 
connection, we note that a number of airports are taking action on the 
local level to limit the passengers' exposure to ambient smoke.

General Nondiscrimination Obligation

NPRM Proposal

    The NPRM proposed to add language making explicit the existing 
obligation of carriers to provide accommodations to passengers with 
disabilities and remove barriers, applying the standards of section 504 
of the Rehabilitation Act and Title III of the Americans with 
Disabilities Act (ADA). The purpose of this addition was to clarify 
that carriers must modify policies, practices, and facilities where 
needed to provide service to passengers with disabilities, even if a 
particular accommodation was not specifically mandated elsewhere in 
part 382.

Comments and DOT Response

    Carriers and disability groups found themselves in somewhat ironic 
agreement that the reference in the proposal to ADA standards should be 
removed and that the provision should refer only to the standards of 
section 504. Disability groups took this position on the basis of their 
view that section 504 imposes a more stringent standard on carriers 
than Title III of the ADA. Carriers took this position on the basis of 
their view that section 504 imposes a less stringent standard on 
carriers than Title III of the ADA. Both found the dual reference to 
ADA and 504 standards to be vague and confusing.
    As the Department noted in the preamble to the NPRM, the history of 
the ACAA clearly shows that Congress enacted the statute to fill a gap 
in nondiscrimination coverage left by a Supreme Court decision that 
said that section 504 of the Rehabilitation Act did not apply to air 
carriers, since they do not (with the exception of participants in the 
Essential Air Service program) receive Federal financial assistance. 
The intent of the statute was to achieve the same protection from 
discrimination for airline passengers that section 504 provides persons 
affected by Federally-assisted programs. For a summary of the history 
of the Act, see the preamble to the Department's 1990 final ACAA rule 
(55 FR 8009; March 6, 1990).
    Given this history, and the common concerns of disability groups 
and carriers that the ADA reference in the NPRM was inappropriate and 
confusing, the Department is changing the text of the section in the 
final rule. The final rule version tells carriers, in addition to 
following the other specific provisions of Part 382, that they must 
modify policies, practices, or facilities as needed to ensure 
nondiscrimination, consistent with the standards of section 504 of the 
Rehabilitation Act, as amended.
    One carrier comment proposed an original list interpretation of the 
ACAA, under which only those accommodations that would have been 
required under section 504 in 1986 could ever be required under the 
ACAA. The Department is not persuaded that this interpretation is 
sound. It would, among other things, contravene the intent of Congress 
that airline passengers have the same protections that people with 
disabilities have in other situations under section 504. In 
interpreting what rights airline passengers have today, it is far more 
reasonable to look at what rights persons with disabilities have under 
section 504 today, rather than attempting a historical speculation 
about what rights they might have had in previous decades.
    In any case, the nondiscrimination provisions of the DOT and 
Department of Justice section 504 regulations, as they read in 1986 and 
as they read today, clearly support the Department's amendment to 
Sec. 382.7. They impose an obligation on covered entities to modify 
policies, practices, and facilities to ensure that persons with 
disabilities receive services on a nondiscriminatory basis. A carrier's 
argument that a requirement to modify polices, practices and facilities 
to ensure nondiscrimination is impermissibly vague is without merit. 
Like section 504 itself, the statutory language of the ACAA prohibits 
discrimination in general terms. There is no basis for asserting that 
the only modifications a carrier could ever be required to make are 
those specifically enumerated in the existing sections of the rule. 
From the beginning of section 504 rules in the 1970s, these rules have 
always imposed general, as well as specific, nondiscrimination 
obligations on covered entities.
    We agree with the comments of both carriers and disability groups 
that, under section 504, carriers are not required to make 
modifications that would constitute an undue burden or fundamentally 
alter the nature of the carriers' service. As in section 504 and ADA 
practice generally, what constitutes an undue burden or a fundamental 
alteration is a judgment decision that must be made on the facts of a 
specific situation. The ACAA clearly provides that carriers not make 
modifications that would violate FAA safety rules.
    This approach does not represent a departure from existing ACAA 
interpretation or practice. Indeed, the Department has consistently 
operated on the basis of this understanding of the law. For example, 
the issue of food allergies is not specifically mentioned in the text 
of Part 382. On several occasions, however, the Department has learned 
of situations in which passengers with severe allergies to peanuts have 
requested

[[Page 10530]]

accommodations from airlines. The Department has worked informally with 
airlines and passengers to arrange appropriate modifications to the 
airlines' normal food service practices on specific flights. For 
example, in some cases, airlines have agreed to serve an alternate 
snack (e.g., pretzels rather than peanuts) to passengers seated near 
the allergic passenger. This is an example of a modification to normal 
practices that is not unduly burdensome. On the other hand, some 
allergic passengers have requested much more sweeping actions by 
carriers (e.g., special cleaning of an aircraft to ensure that peanut 
residue does not remain on board; screening other passengers to ensure 
that they do not bring their own peanut products on board). We have 
regarded these requested accommodations as creating undue burdens, and 
we have consequently not requested carriers to undertake such steps. In 
assessing any requested accommodation, passengers, airlines, and the 
Department must exercise judgment on a case-by-case basis concerning 
what it is reasonable to expect and what constitutes an undue burden.
    Comments from disability group commenters mentioned a number of 
examples of types of modification they thought would be appropriate 
under this provision. These included chest straps for some mobility-
impaired passengers to provide greater lateral stability in aircraft 
seats, allowing a passenger to board last to reduce pain from sitting 
for long periods, allowing wheelchair users to check in at the gate 
rather than at the airport entrance or ticket counter, and allowing 
people who cannot carry luggage to have luggage carts in airport 
concourses. These requests--whatever their merits in a particular fact 
situation--illustrate the point that a regulation can never possibly 
enumerate all possible specific situations potentially calling for 
accommodations to achieve nondiscrimination.
    This provision is not intended to replace the rulemaking process 
with respect to across-the-board changes in carrier policies and 
practices. For example, the Department does not intend, in implementing 
and enforcing this provision, to address industry-wide issues like on-
board oxygen use by passengers, additional accommodations for 
passengers with hearing impairments, or smoking in airports. The 
provision is intended to deal with accommodations that take the form of 
case-by-case exceptions to otherwise reasonable general policies or 
practices of carriers.
    The Department wants to take this opportunity to clarify an 
apparent misunderstanding that a disability organization had concerning 
the effect of the November 1, 1996, amendment the Department made to 
the airport facility standards in 14 CFR Part 382 and 49 CFR Part 27 
(61 FR 56420, 56422). The group's concern was that the amendments 
substantively weakened the requirements for airlines and airports to 
meet accessibility standards. The amendments were not intended to do 
so, and they in fact did not do so.
    As noted in the preamble to the November 1, 1996, final rule (61 FR 
56416-18), the coverage of the ADA, section 504, and the ACAA at 
airports had been overlapping and confusing. The purpose of the 
amendments was to harmonize these authorities, simplifying issues of 
statutory and regulatory coverage without affecting substantive 
requirements. The amendments did this by saying that airlines and 
airports meet their ACAA and section 504 requirements if they meet, 
respectively, the standards of Title III and Title II of the ADA.
    In doing so, the Department knew that section 10.4 of the Americans 
with Disabilities Accessibility Guidelines (ADAAG) incorporated many of 
the specific accessibility requirements of the pre-1996 ACAA and 
section 504 requirements for airport facilities (56 FR 45714; September 
6, 1991). The amendments refer specifically to these provisions (see 49 
CFR 27.71(e); 14 CFR 382.23(e)). Requirements not specifically 
referenced in the ADAAG provision are retained in the amended ACAA and 
section 504 provisions (14 CFR 382.23 (c) and (d) and 49 CFR 27.71 (c) 
and (d), which concern accessible paths of travel through airports and 
inter-terminal transportation systems, respectively). These provisions 
ensure that nothing is lost between the pre-amended and amended ACAA 
and 504 sections.
    With respect to the issue of modifications for existing facilities, 
section 504 has always required recipients to modify policies, 
practices, and facilities to ensure nondiscrimination. Section 504 has 
never required recipients to incur undue burdens to make these 
modifications. The ``program accessibility'' requirements of the 
Department of Justice ADA Title II regulation (28 CFR 35.150) require 
no less than section 504 with respect to facility accessibility. Using 
the program accessibility standard does not in any way relieve 
recipients of the obligations they had under section 504 and the pre-
amended 49 CFR part 27 to modify facilities for accessibility. Indeed, 
it is difficult to imagine circumstances, in the context of airport 
facilities, in which program accessibility could be fully achieved 
without facilities being made accessible.
    The pre-amended version of the ACAA airport facilities provision 
required facility modifications to be made by carriers as of April 5, 
1993 (former 14 CFR 382.23(d)). By the time of the amendment, any 
existing facility that had not been modified for accessibility had been 
out of compliance for approximately 3\1/2\ years. Nothing in the 
amendment to Sec. 382.83 is intended to relieve carriers of that pre-
existing compliance obligation. Obviously, any new facility 
construction or alterations have had to be accessible since the ACAA 
rules first went into effect, which the amendment does not change.

Seating Accommodations

NPRM Proposal

    The NPRM proposed that carriers make available to passengers with 
disabilities four types of seating accommodations. These included seats 
in rows with movable aisle armrests for wheelchair users, seats for a 
personal care attendant (PCA) next to a disabled passenger needing the 
PCA's services during the flight, seats in either bulkhead or non-
bulkhead rows for persons traveling with service animals, and seats 
providing additional legroom for persons with fused or immobilized 
legs. While a carrier might have to reassign other passengers to make 
these accommodations, no one would be ``bumped'' from a flight and the 
carrier would continue to follow all FAA safety rules, including the 
exit row seating rule. The carrier could establish up to a 48-hour 
advance notice requirement for someone requesting a seating 
accommodation.

Comments

    Disability community commenters unanimously supported the proposal. 
Many of these comments said that even if some other passengers had 
their seats changed as a result, their inconvenience did not outweigh 
the need of passengers with disabilities for seats that they could 
readily access and use. These commenters argued that making seating 
accommodations was a reasonable modification of policies and practices 
that did not impose an undue burden on carriers or fundamentally alter 
the nature of the airlines' services.
    There were some modifications that disability community commenters 
requested, however. Generally, they opposed the advance notice 
provision,

[[Page 10531]]

saying it was discriminatory and worked a hardship of passengers who 
had to make short-notice travel plans. They also objected to any 
requirement for documenting a disability, saying that this was 
burdensome for passengers. Some of these comments also suggested that, 
on airlines that do not assign seats in advance, carriers should be 
required to let people needing seating accommodations preboard before 
other passengers (e.g., families with small children) who also can 
preboard. In all preboardings, commenters said, carriers should give 
people with disabilities enough time to get settled in their seats 
before other passengers board. (It should be noted that some carriers 
are reported to be cutting back or eliminating traditional preboarding 
procedures. Since some provisions of the ACAA rule, such as the 
requirement for on-board stowage of wheelchairs, are premised on the 
availability of preboarding to passengers with disabilities, this 
change in industry practice may have implications for the accessibility 
of air travel to disabled passengers. The Department intends to watch 
developments in the preboarding policy area to determine if future 
rulemaking may be needed.)
    Disability community commenters said that the four categories of 
people who the NPRM proposed as eligible for seating accommodations 
were too narrow. There would always be individual cases that did not 
fit into these or any set of categories, they said, so the rule should 
be structured in an ``including but not limited to * * *'' fashion. 
Examples of other disabilities cited as requiring accommodations 
included a person with a painful disability that made it necessary for 
her to minimize being jostled by other people (who thereby needed a 
window seat), someone with multiple sclerosis who could walk a few 
steps but needed a seat near the entrance to the aircraft, and someone 
with bladder or bowel control problems who needed an aisle seat near a 
lavatory.
    Two commenters suggested that the movable aisle armrest row 
accommodation be limited to persons who need an aisle chair to board or 
who cannot transfer over a fixed armrest (as distinct from persons who 
could walk a few steps to a seat). Other commenters suggested that 
reservation systems ``block'' seats needed for accommodations so that 
disabled passengers needs could be met without having to displace other 
passengers. Alternatively, there could be designated ``priority'' seats 
for persons with disabilities, from which other passengers would move 
if a seating accommodation became necessary.
    Carriers objected to the proposal on a number of grounds. The one 
they identified as the most significant had to do with the limitations 
of their computer reservation systems. These systems, the carriers 
said, could not retrieve the names of passengers by reference to seat 
assignments. That is, if a disabled passenger were assigned seat 6C as 
an accommodation, the carrier would not be able to determine who had 
previously been assigned the seat so as to be able to notify that 
passenger of a changed assignment. To provide this notice and avoid an 
unpleasant surprise, the carrier would either have to modify its 
computer system or comb through individual passenger records, both of 
which would be very expensive and unduly burdensome.
    In any case, carriers said, it was unfair to impose inconvenience 
on other passengers who had expectations of sitting in their original 
seat assignment, especially since some of those had good reasons (e.g., 
they were tall, traveling with infants) for wanting a particular seat. 
This would create confusion, make the other passengers unhappy, 
increase denied boarding compensation claims and flight delays, and 
distract flight attendants from safety duties. If passengers requesting 
accommodations were not really disabled, it would add to this 
discontent. One carrier noted that its policy was to ask other 
passengers to move in situations where an expected accommodation for a 
disabled passenger did not materialize (e.g., because the equipment for 
a flight changed).
    The proposal would make carriers discriminate against those 
disabled passengers who were not in one of the four categories and 
force carriers to ask inappropriate questions of disabled passengers, 
carrier comments added. Carriers who do not assign seats in advance 
requested that the NPRM preamble statement that their obligations could 
be met by their preboarding process be included in the final regulatory 
text (a comment seconded by a disability group).
    Finally, carriers made a legal argument against the proposal, 
saying that it required ``preferential'' treatment and ``affirmative 
accommodation'' for disabled passengers, while the Department's 
authority was limited to ensuring nondiscrimination. The carriers 
already practiced nondiscrimination, they said, by treating all 
passengers the same through their ``first-come/first-served'' seat 
assignment policy. Requiring a change in this policy, especially as 
applied to seats withheld from the general passenger population for 
frequent fliers' benefit, would be a fundamental alteration of the 
carrier's services, the comments said.
    Carriers noted that they already block seats in the reservation 
process, including some bulkhead and movable aisle armrest rows, for 
people with disabilities. One carrier said that it holds some of the 
seats for passengers with disabilities who may not have made their 
needs known until check-in.

DOT Response

    With some substantive modifications in response to comments, the 
Department is adopting the NPRM proposal. Requiring seating 
accommodations is necessary to ensure nondiscrimination, is consistent 
with the language and intent of the ACAA, and does not create an undue 
burden or fundamentally alter the nature of airline services.
    The Department strongly disagrees with carrier comments' 
characterization of a seating accommodations requirement as 
preferential treatment that exceeds the Department's authority under 
the ACAA. This requirement simply compels nondiscriminatory seating 
policies. It tells airlines they must provide to passengers with 
disabilities exactly what they provide to other passengers--a seat the 
passenger can readily access and use. A facially neutral policy that 
assigns seats to non-disabled passengers that they can readily access 
and use but fails to ensure that disabled passengers are assigned seats 
they can readily access and use is discriminatory. Comments to the 
NPRM, as well as the Department's experience in listening to consumer 
concerns about inability or unwillingness of airlines to provide seats 
that individuals can readily access and use, persuade us that this 
accommodation must be required if the intent of Congress in mandating 
nondiscrimination in air travel is to be properly carried out.
    Under the ACAA, as with section 504, the Department has authority 
to require regulated parties to take steps to ensure nondiscrimination, 
as long as these steps do not create an undue burden or fundamentally 
alter the nature of an entity's program. This requirement is consistent 
with these provisions of disability law.
    Airlines regularly provide their customers seats they can access 
and use. The seating accommodation requirement does not fundamentally 
alter the nature of this service. The rule explicitly provides that no 
one will be bumped from a flight to make a seating accommodation and 
that the airline will

[[Page 10532]]

continue to follow all applicable FAA safety rules. Contrary to carrier 
comments, it is hard to imagine denied boarding compensation claims 
increasing under a rule which explicitly provides that no one will be 
denied boarding on a flight to accommodate a disabled passenger. 
Carriers who assign seats in advance may continue to do so. Carriers 
who do not assign seats in advance may continue their practice. The 
provision does not require carriers to provide service to classes of 
passengers they do not now serve (e.g., passengers who have to travel 
on stretchers). Even carriers who hold back some seats for the benefit 
of frequent fliers (something that it is difficult to construe 
reasonably as fundamental to the nature of air transportation) can 
continue to do so, as long as they make exceptions when necessary to 
accommodate a passenger with a disability.
    Particularly given the modifications the Department is making from 
the NPRM (see discussion below), the final rule does not impose undue 
burdens. In this connection, the Department observes that the ACAA 
permits the Department to impose some burdens on carriers. What the 
Department cannot do is impose ``undue'' burdens. The use of this term 
in disability law necessarily implies that some burdens are ``due,'' as 
a consequence of the obligation of regulated parties to ensure 
nondiscrimination. The Department can legally impose these ``due 
burdens.'' The primary ``undue burden'' alleged in carrier comments is 
the difficulty carriers cite with their computer systems. The 
Department accepts the carriers' representations about the limitations 
of their computer systems. However, these problems do not result in an 
undue burden in the context of the final rule.
    This is true because the airlines do not have to do what they say 
their computer systems will not allow them to do. The NPRM did not 
propose, and the final rule does not require, that airlines retrieve 
the names of passengers previously assigned a seat and individually 
inform those passengers that their seat assignment has been changed. 
The structure of the final rule makes such a mechanism unnecessary, 
from a customer relations as well as a legal standpoint.
    The first method carriers can use, suggested by both carrier and 
disability community comments, is for carriers to ``block'' an adequate 
number of seats usable for seating accommodations (e.g., seats in 
bulkhead rows, seats in rows with movable aisle armrests, some pairs of 
seats) from advance assignment until 24 hours before scheduled 
departure time. By an ``adequate'' number of seats, we mean enough 
seats to handle a reasonably expectable demand for seating 
accommodations of various kinds. It might not be necessary, for 
example, to block all aisles with movable armrests or, in an aircraft 
with multiple bulkhead areas, all bulkhead rows. Nor would it 
necessarily be essential to block all the seats in such rows. Carriers 
who use this approach should be aware, however, that they will need to 
block some pairs of seats, since someone who is eligible to receive an 
accommodation (e.g., a wheelchair user with respect to a row with a 
movable aisle armrest) may also be traveling with a personal care 
attendant. We anticipate that the burden of implementing this approach 
would be light, given that carriers already block seats for disability 
and other purposes.
    If a disabled passenger specified in the rule calls the carrier 
prior to 24 hours before the scheduled departure time, the carrier will 
assign the person one of these seats. This would be done even if the 
seat is also one that is otherwise held for use of frequent fliers. 
Because these seats would never have been assigned to another 
passenger, reassignment of the seat will not be an issue, and no other 
passenger will ever have to be displaced from a previously assigned 
seat. If the disabled passenger makes his or her request later than 24 
hours before scheduled departure, the carrier would still try to meet 
the passenger's seating accommodation need, but would not have to 
change another passenger's seat assignment to do so.
    There could be rare situations in which all the seats blocked for a 
particular sort of accommodation are filled with individuals with 
disabilities and, subsequently but prior to 24 hours before departure, 
an additional passenger with a disability requests the same kind of 
accommodation. In this case, the carrier would not be required to 
change a seat assignment that had already been given to another 
disabled passenger. However, the carrier would have meet the disabled 
passenger's request by assigning him or her to a seat that provided the 
needed accommodation, was not a seat blocked for passengers listed in 
paragraph (a), and was still unassigned, even if that seat was 
otherwise blocked for frequent fliers or another category of passenger.
    Under the second approach available to carriers, suggested by 
disability community comments and somewhat analogous practices in other 
modes of transportation, carriers would designate an adequate number of 
seats as ``priority seats'' for seating accommodations for disabled 
passengers. Carriers would provide notice that passengers who are 
assigned these seats are subject to being reassigned to another seat if 
necessary to accommodate a passenger with a disability.
    In the Department's view, the best way to provide this information 
would be through notice to the passenger at the time he or she made a 
seat selection (e.g., by the airline reservationist or travel agent, 
via a screen notice when the passenger is making an on-line seat 
assignment, or via a recording when the passenger makes a seat 
selection through an automated telephone system). Other methods are 
acceptable, however, such as ticket notices, gate announcements, 
counter signs, seatback cards, notices in advertisements, timetables, 
web sites, or frequent flier literature. Whatever system a carrier 
chooses to provide this information, the Department believes it would 
be useful to place a sticker or decal (e.g., on the armrest for the 
seat or the tray table facing the seat) with an accessibility symbol 
and words like ``Priority Seat for Passengers with Disabilities,'' 
which would help inform passengers about this requirement.
    By receiving this information, passengers would know that if they 
sat in a priority seat, they could be moved to another seat if a 
disabled passenger needed that seat for a seating accommodation. 
Because passengers would be on notice that sitting in a priority seat 
might occasionally result in having to change seats, passengers who had 
to move would not be surprised or have grounds for feeling that their 
legitimate expectations had been infringed.
    In order to give carriers time to make any necessary adjustments, 
carriers could request that passengers with disabilities wishing to 
make use of designated priority seats must check in and make their 
request an hour before departure. If a passenger failed to do so, the 
airline would still have to try to accommodate the person's request, 
but would not have to reassign another passenger's seat to do so.
    As in the case of carriers who use the ``seat blocking'' mechanism, 
there could be rare situations in which all the designated priority 
seats are filled with individuals with disabilities, and subsequently 
an additional passenger with a disability requests the same kind of 
accommodation. In this case, the carrier would not be required to 
change a seat assignment that had already been given to another 
disabled passenger. However, the carrier would have meet the disabled 
passenger's request by

[[Page 10533]]

assigning him or her to a seat that provided the needed accommodation, 
was not a designated priority seat, and was still unassigned, even if 
that seat was otherwise blocked for frequent fliers or another category 
of passenger.
    The Department believes that, to implement these requirements 
appropriately, carriers would have to block or give priority 
designation to seats in all classes of service. This does not mean, 
however, that a passenger with a disability would have to be given an 
upgrade (e.g., provide a seat in first class to a purchaser of a coach 
ticket) in order to be accommodated.
    To provide greater flexibility, the rule permits carriers to devise 
different approaches to achieving the objectives of this section. To 
implement a different approach, a carrier would have to obtain the 
written concurrence of the Office of the Secretary, DOT. Carriers 
interested in getting approval of a different approach should contact 
the Aviation Consumer Protection Division of the Office of the 
Assistant General for Aviation Enforcement and Proceedings in the DOT 
Office of General Counsel (202-366-5957).
    The foregoing discussion has focused on carriers who assign seats 
in advance. Carriers who do not assign seats in advance would, as the 
NPRM suggested, meet the requirements of this section through the 
preboarding process. As requested, this provision has been made part of 
the final rule text. In response to a disability community comment, 
these carriers would permit persons needing seat accommodations under 
this section to preboard before other passengers, including other 
passengers who preboard. Regardless of whether the carrier assigns 
seats in advance or not, the rule never requires a carrier to choose 
between disabled persons who need the same seat accommodation.
    The Department believes that these approaches minimize both the 
potential burdens on carriers and inconvenience to other passengers. To 
the extent that some inconvenience remains, the Department believes 
that the inconvenience to a non-disabled passenger who moves from one 
seat he or she can readily access and use to another such seat is far 
outweighed by the nondiscrimination-related necessity of ensuring that 
a disabled passenger can have a seat he or she can readily access and 
use. The Department has a statutory responsibility to ensure 
nondiscrimination on the basis of disability; there is no parallel 
mandate to preclude inconvenience to other passengers who may prefer 
some of the same seats that are needed to accommodate a disabled 
passenger.
    As noted above, the rule specifically provides that no other 
passenger would ever be bumped off a flight to make room for an 
accommodation needed by a passenger with a disability. For example, 
suppose that all seats but one have confirmed reservations for a 
particular flight. A disabled passenger then calls to make a 
reservation for himself and his PCA. Someone who already had a 
confirmed reservation would not lose that reservation to make room for 
the PCA. This does not mean, however, that a carrier could not take 
action against a passenger who had a seat on the aircraft (e.g., a 
designated priority seat) who refused to move to another seat to 
accommodate a disabled passenger when the carrier requested it.
    The Department is also modifying the types of situations in which 
airlines are required to provide seating accommodations. One important 
clarification is that carriers are required to provide seating 
accommodations only to passengers who self-identify as needing one of 
the specified accommodations. It is not unreasonable to ask passengers 
seeking a particular accommodation to take the initiative to specify 
the nature of their need for it. This will also mitigate the problem 
cited by carriers of having their personnel asking awkward or 
inappropriate questions about passengers' disabilities.
    Paragraph (a) of the new rule sets forth four situations in which 
seat assignment accommodations are required. As suggested by 
commenters, the first accommodation (seating in a row with a movable 
aisle armrest) is clarified to apply to people who board the aircraft 
using an aisle chair and who cannot readily transfer over a fixed 
armrest. The third accommodation--a seat in either a bulkhead or non-
bulkhead row for someone traveling with a service animal--is unchanged 
from the NPRM. It was not the subject of any specific comment. Some 
passengers with service animals prefer bulkhead rows, while others do 
not. The point of this accommodation is to allow the passenger to 
choose which type of row he or she and the service animal will occupy.
    The second accommodation has been expanded in response to comments. 
In the NPRM, it was limited to persons traveling with a personal care 
attendant. Commenters pointed out that a deaf person traveling with an 
interpreter was in a similar situation. A blind person traveling with a 
reader also may need to have the person next to him or her during the 
flight. Unless a blind or deaf person were also eligible for a specific 
seat location as an accommodation--for example, because the person was 
a wheelchair user or was traveling with a service animal--the pair of 
seats could be anywhere in the aircraft.
    In each case, the accommodation--a seat for the assistant next to 
the individual with a disability--is required to be provided only if 
the assistant is actually going to provide services to the disabled 
passenger during the course of the flight. Someone who is traveling to 
the same destination as the person with a disability to perform 
services there, but who will not actually perform services on the 
flight, is not covered by this paragraph.
    Finally, for a person with a fused or immobilized leg (e.g., a 
surgically fused leg), the required accommodation is a bulkhead row 
seat or some other seat providing additional legroom for the leg. This 
provision is the same as in the NPRM, except for a clarification that 
the seat must be provided on the side of the aircraft aisle that is 
more useful to the passenger.
    All these circumstances are likely to be visible to carrier 
personnel, and we agree with commenters that documentation of these 
circumstances is unnecessary and burdensome. We do not agree with the 
carrier comment that identifying these categories somehow discriminates 
against passengers with other disabilities. In any disability law or 
regulation, accommodations are specific to the specific disabilities in 
question. Having a ramp into a building for wheelchair users does not 
discriminate against ambulatory deaf people. Braille signage does not 
discriminate against individuals with mental disabilities. Nor does 
requiring a seat in a row with a movable armrest for a wheelchair user 
discriminate against blind passengers.
    In the course of implementing the ACAA's nondiscrimination 
requirement, the Department has already required numerous 
accommodations for persons with specific disabilities, from movable 
aisle armrests, boarding assistance and wheelchair storage requirements 
for persons with mobility impairments to information in accessible 
formats for visually impaired persons. Seating accommodations are just 
one more set of such specific accommodations, of the sort that carrier 
comments, in the context of their argument concerning the general 
nondiscrimination requirement, agreed that the Department had the 
authority to impose.
    The Department recognizes, as commenters pointed out, that some 
individuals with disabilities who do not fit into the four categories 
listed in paragraph (a) (e.g., individuals whose disabilities or needs 
for accommodation

[[Page 10534]]

are not obvious to observers) may need seat assignment accommodations 
in order to readily access and use airline services. No set of 
categories can ever encompass every possible individual or situation. 
At the same time, the Department wants to define the requirements for 
accommodations sufficiently narrowly as to facilitate implementation 
and limit the possibility of abuse. We also understand the objections 
of disability community commenters to requirements for documentation.
    To address all these concerns, the final rule provides a different 
mechanism for individuals with disabilities other than those in the 
four categories specified in paragraph (a) who need seat assignment 
accommodations in order to readily access and use airline services. 
Such individuals will be assigned, on their request, any seat that has 
not already been assigned to another passenger, even if that seat is 
not otherwise available to the general passenger population at the time 
of the request. Such individuals would not be entitled to be assigned 
seats ``blocked'' for passengers specified in paragraph (a). If 
assigned to a designated priority seat, such an individual could, like 
other passengers, be reassigned to another seat if needed to 
accommodate a passenger specified in paragraph (a).
    For example, suppose there are 100 seats available on a given 
flight operated by a carrier that blocks seats to provide the 
accommodations required by paragraph (a). The seats on the flights fall 
into three categories: Category A consists of 10 seats blocked for 
persons with disabilities specified in paragraph (a); Category B 
consists of 20 seats which are held for assignment to frequent fliers 
and full-fare passengers; Category C consists of the rest of the seats, 
which are available for assignment to all passengers. A person with a 
disability not specified in paragraph (a) calls for a reservation, 
self-identifying as to the nature of his or her disability and the need 
for a particular kind of seat assignment to accommodate the disability. 
The carrier would not assign the person a Category A seat. The carrier 
would assign any seat in Category B or C that successfully provided the 
needed accommodation and that had not already been assigned to someone, 
even though Category B seats are not normally made available to persons 
other than frequent fliers or full-fare passengers at this stage of the 
process. The carrier would not be required to reassign other passengers 
who had already received their seat assignments.
    Carriers using the designated priority seats mechanism to comply 
with paragraph (a) would follow a somewhat similar pattern. In this 
case, Category A consists of designated priority seats. A person with a 
disability not specified in paragraph (a) calls for a reservation, 
self-identifying as to the nature of his or her disability and the need 
for a particular kind of seat assignment to accommodate the disability. 
The carrier would assign a seat in any of the three categories that 
successfully provided the needed accommodation and that had not already 
been assigned to someone, even though some or all Category A or B seats 
are not normally made available to other than frequent fliers or full-
fare passengers at this stage of the process. The carrier would not be 
required to reassign other passengers who had already received their 
seat assignments. In the event that the passenger was assigned a 
Category A seat, the passenger would receive the same notice as non-
disabled persons assigned Category A seats that he or she was subject 
to reassignment if needed to accommodate someone with a disability 
specified in paragraph (a).
    Carriers that do not assign seats in advance would simply 
accommodate passengers with disabilities not specified in paragraph (a) 
in the same way as those who are, affording them priority in the 
preboarding process.
    Carriers are not required to provide the seating accommodations 
specified in this section if the passenger does not request them. As 
noted in the NPRM, carriers are not required to provide more than one 
seat to a passenger per ticket (e.g., carriers could require a very 
obese passenger, who occupies the space of two seats, to purchase two 
tickets).
    The Department realizes that carriers may need some time to 
implement the requirements of this section. For this reason, the final 
rule establishes a compliance date of six months from the effective 
date of the rule.

Collapsible Electric Wheelchairs

NPRM Proposals

    The NPRM proposed to add collapsible, folding, or break-down 
electric wheelchairs to existing provisions requiring in-cabin storage 
for manual wheelchairs. These chairs would be regarded in the same way 
as manual wheelchairs are for in-cabin storage, and would be subject to 
FAA rules for carry-on items. In addition, a provision was proposed to 
be added to the section of the rule on battery stowage, providing that 
when a wheelchair was to be folded or broken down, the carrier would 
remove the battery and fold the wheelchair for in-cabin storage. 
Carriers would continue to follow DOT hazardous materials rules with 
respect to removal, packaging, and stowing of batteries.

Comments and DOT Response

    There was less disagreement about this proposal than others in the 
NPRM. Both carriers and disability community commenters generally 
supported it. A number of these commenters, as well as some battery 
manufacturers, expressed concern about the issue of how to handle 
batteries. This has been a troublesome issue over time, primarily 
because carriers have had difficulty in distinguishing spillable from 
nonspillable batteries and believe they cannot rely on passengers' 
representations on the matter. The two kinds of batteries are treated 
differently under DOT hazardous materials rule. Several commenters 
sought additional clarification of rules concerning batteries.
    One suggestion that has merit is that batteries labeled by 
manufacturers as nonspillable, as provided in a DOT hazardous materials 
rule (49 CFR 173.159(d)(2)), should be carried in the cabin. Carriers 
would be authorized to detach, package, and carry as cargo batteries 
that are not so labeled. Existing advance notice requirements for 
handling electric wheelchairs would continue to apply, regardless of 
whether the wheelchair itself were to be stowed in the cabin or as 
cargo. As a general matter, carriers and passengers should be aware 
that, except for the new reference to 49 CFR Sec. 173.159(d)(2), 
today's amendment does not alter existing rules concerning batteries, 
but concerns merely the stowage location for the wheelchair itself.
    The Department notes that the one-hour advance check-in provision 
of Sec. 382.41(g)(1) would apply to electric wheelchairs that are 
carried in the cabin as well as to those that are carried as checked 
items. In addition, while the rule provides that carriers would not 
treat manufacturer-labeled nonspillable batteries as spillable 
batteries, there still may be circumstances under which carriers might 
have to take steps to prepare batteries for safe transportation (e.g., 
disconnect and tape connections to prevent possible sparking). Of 
course, if a labeled non-spillable battery appeared to be damaged or 
leaking, the carrier could determine that, for safety's sake, it was 
necessary to package it separately (or, even deny transportation for 
the battery if the potential safety hazard were serious enough).
    Disability community commenters said there were continuing problems

[[Page 10535]]

with airlines' handling of wheelchairs, especially electric 
wheelchairs. Carriers too often fail to do the job properly, they 
asserted. One commenter asked for additional training requirements for 
carrier personnel concerning handling of wheelchairs; we do not believe 
that additional specific requirements are necessary at this time, given 
that the training to proficiency requirements already in the rule 
encompass handling of wheelchairs.
    Some carrier comments suggested there should be discretion 
exercised by carrier personnel concerning on-board stowage of 
wheelchairs or parts of them, because the chairs or parts may be heavy 
or bulky, exceeding the capacity of storage bins and other spaces. The 
Department does not believe that any special rule language is necessary 
to accommodate this concern. Wheelchairs and parts stowed in the cabin 
must comply with FAA carry-on baggage requirements. In the enforcement 
of such FAA requirements, carrier personnel can exercise the same 
discretion concerning wheelchairs or parts that they do with respect to 
other items that passengers bring on board (though wheelchairs and 
other assistive devices do not count against a passenger's carry-on bag 
limit). Carriers should note, however, that Sec. 382.41(e)(2) gives 
wheelchairs priority over other passengers' carry-on luggage.

Regulatory Analyses and Notices

    This final rule is not a significant rule under Executive Order 
12866 or the Department's Regulatory Policies and Procedures. The 
Department certifies that this rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The basis for this statement is that the modifications to airline 
practices and procedures that the rule requires involve little 
additional cost or burden to carriers or airports, whatever their size.
    The Department has determined that there would be not be sufficient 
Federalism impacts to warrant the preparation of a Federalism 
Assessment. As it implements a nondiscrimination statute, this rule is 
not subject to scrutiny under the Unfunded Mandates Act.

List of Subjects in 14 CFR Part 382

    Aviation, Handicapped.

    Issued this 24th day of February, 1998, at Washington, D.C.
Rodney E. Slater,
Secretary of Transportation.

    For the reasons set forth in the preamble, the Department amends 14 
CFR part 382 as follows:

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

    1. The authority citation for 14 CFR part 382 would continue to 
read as follows:

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

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


Sec. 382.7  General prohibition of discrimination.

* * * * *
    (c) Carriers shall, in addition to meeting the other requirements 
of this part, modify policies, practices, or facilities as needed to 
ensure nondiscrimination, consistent with the standards of section 504 
of the Rehabilitation Act, as amended. Carriers are not required to 
make modifications that would constitute an undue burden or would 
fundamentally alter their program.
    3. A new Sec. 382.38 is added, to read as follows:


Sec. 382.38  Seating accommodations.

    (a) On request of an individual who self-identifies to a carrier as 
having a disability specified in this paragraph, the carrier shall 
provide the following seating accommodations, subject to the provisions 
of this section:
    (1) For a passenger who uses an aisle chair to access the aircraft 
and who cannot readily transfer over a fixed aisle armrest, the carrier 
shall provide a seat in a row with a movable aisle armrest.
    (2) The carrier shall provide a seat next to a passenger traveling 
with a disability for a person assisting the individual in the 
following circumstances:
    (i) When an individual with a disability is traveling with a 
personal care attendant who will be performing a function for the 
individual during the flight that airline personnel are not required to 
perform (e.g., assistance with eating);
    (ii) When an individual with a vision impairment is traveling with 
a reader/assistant who will be performing functions for the individual 
during the flight; or
    (iii) When an individual with a hearing impairment is traveling 
with an interpreter who will be performing functions for the individual 
during the flight.
    (3) For an individual traveling with a service animal, the carrier 
shall provide, as the individual requests, either a bulkhead seat or a 
seat other than a bulkhead seat.
    (4) For a person with a fused or immobilized leg, the carrier shall 
provide a bulkhead seat or other seat that provides greater legroom 
than other seats, on the side of an aisle that better accommodates the 
individual's disability.
    (b) A carrier that provides advance seat assignments shall comply 
with the requirements of paragraph (a) of this section by any of the 
following methods:
    (1) The carrier may ``block'' an adequate number of the seats used 
to provide the seating accommodations required by this section.
    (i) The carrier shall not assign these seats to passengers not 
needing seating accommodations provided under this paragraph until 24 
hours before the scheduled departure of the flight.
    (ii) At any time up until 24 hours before the scheduled departure 
of the flight, the carrier shall assign a seat meeting the requirements 
of this section to an individual who requests it.
    (iii) If an individual with a disability does not make a request at 
least 24 hours before the scheduled departure of the flight, the 
carrier shall meet the individual's request to the extent practicable, 
but is not required to reassign a seat assigned to another passenger in 
order to do so.
    (2) The carrier may designate an adequate number of the seats used 
to provide seating accommodations required by this section as 
``priority seats'' for individuals with disabilities.
    (i) The carrier shall provide notice that all passengers assigned 
these seats (other than passengers with disabilities listed in 
paragraph (a) of this section) are subject to being reassigned to 
another seat if necessary to provide a seating accommodation required 
by this section. The carrier may provide this notice through its 
computer reservation system, verbal information provided by reservation 
personnel, ticket notices, gate announcements, counter signs, seat 
cards or notices, frequent-flier literature, or other appropriate 
means.
    (ii) The carrier shall assign a seat meeting the requirements of 
this section to an individual who requests the accommodation and checks 
in at least one hour before the scheduled departure of the flight. If 
all designated priority seats that would accommodate the individual 
have been assigned to other passengers, the carrier shall reassign the 
seats of the other passengers as needed

[[Page 10536]]

to provide the requested accommodation.
    (iii) If the individual with a disability does not check in at 
least an hour before the scheduled departure of the flight, the carrier 
shall meet the individual's request to the extent practicable, but is 
not required to reassign a seat assigned to another passenger in order 
to do so.
    (c) On request of an individual who self-identifies to a carrier as 
having a disability other than one in the four categories listed in 
paragraph (a) of this section and as needing a seat assignment 
accommodation in order to readily access and use the carrier's air 
transportation services, a carrier that assigns seats in advance shall 
provide such an accommodation, as described in this paragraph.
    (1) A carrier that complies with paragraph (a) this section through 
the ``seat-blocking'' mechanism of paragraph (b)(1) of this section 
shall implement the requirements of this paragraph as follows:
    (i) When the passenger with a disability not described in paragraph 
(a) of this section makes a reservation more than 24 hours before the 
scheduled departure time of the flight, the carrier is not required to 
offer the passenger one of the seats blocked for the use of passengers 
with disabilities listed under paragraph (a) of this section.
    (ii) However, the carrier shall assign to the passenger any seat, 
not already assigned to another passenger, that accommodates the 
passenger's needs, even if that seat is not available for assignment to 
the general passenger population at the time of the request.
    (2) A carrier that complies with this section through the 
``designated priority seats'' mechanism of paragraph (b)(2) of this 
section shall implement the requirements of this paragraph as follows:
    (i) When a passenger with a disability not described in paragraph 
(a) of this section makes a reservation, the carrier shall assign to 
the passenger any seat, not already assigned to another passenger, that 
accommodates the passenger's needs, even if that seat is not available 
for assignment to the general passenger population at the time of the 
request.
    (ii) If such a passenger is assigned to a designated priority seat, 
he or she is subject to being reassigned to another seat as provided in 
paragraph (b)(2) of this section.
    (d) A carrier that does not provide advance seat assignments shall 
provide seating accommodations for persons described in paragraphs (a) 
and (c) of this section by allowing them to board the aircraft before 
other passengers, including other ``pre-boarded'' passengers, so that 
the individuals needing seating accommodations can select seats that 
best meet their needs if they have taken advantage of the opportunity 
to pre-board.
    (e) A carrier may comply with the requirements of this section 
through an alternative method not specified in paragraphs (b) through 
(d) of this section. A carrier wishing to do so shall obtain the 
written concurrence of the Department of Transportation (Office of the 
Secretary) before implementing the alternative method.
    (f) The carrier shall assign a seat providing an accommodation 
requested by an individual with a disability, as specified in this 
section, even if the seat is not otherwise available for assignment to 
the general passenger population at the time of the individual's 
request.
    (g) If the carrier has already provided a seat to an individual 
with a disability to furnish an accommodation required by paragraph (a) 
or (c) of this section, the carrier shall not reassign that individual 
to another seat in response to a subsequent request from another 
individual with a disability, without the first individual's consent.
    (h) In no case shall any individual be denied transportation on a 
flight in order to provide accommodations required by this section.
    (i) Carriers are not required to furnish more than one seat per 
ticket or to provide a seat in a class of service other than the one 
the passenger has purchased.
    (j) In responding to requests from individuals for accommodations 
required by this section, carriers shall comply with FAA safety rules, 
including those pertaining to exit seating (see 14 CFR 121.585 and 
135.129).
    (k) Carriers are required to comply with this section beginning 
August 31, 1998.


Sec. 382.41  [Amended]

    4. In 14 CFR 382.41(b), the citation ``49 CFR 173.260(d)'' is 
amended to read ``49 CFR 173.159(d).''
    5. In 14 CFR 382.41(e), the introductory paragraph is amended by 
adding, after the word ``wheelchairs'', the following words: 
``(including collapsible or break-down battery-powered wheelchairs, 
subject to the provisions of paragraph (g)(5) of this section) as 
carry-on baggage''.
    6. In 14 CFR 382.41(e)(2), in the first sentence, the word ``an'' 
is added before the word ``aircraft'' and a comma and the words 
``collapsible, or break-down'' are added after the word ``folding,'' in 
both places where that word occurs.
    7. In 14 CFR 382.41(e)(3), a comma and the words ``collapsible, or 
break-down'' are added after the word ``folding,''
    8. In 14 CFR 382.41(f), the words ``When passenger compartment 
storage is not available'' are removed and the following words are 
added in their place: ``When a folding, collapsible, or break-down 
wheelchair cannot be stowed in the passenger cabin as carry-on 
baggage,''.
    9. In 14 CFR 382.41, paragraph (g) is revised and paragraph (h) is 
added to read as follows:


Sec. 382.41  Stowage of personal equipment.

* * * * *
    (g) Whenever baggage compartment size and aircraft airworthiness 
considerations do not prohibit doing so, carriers shall accept a 
passenger's battery-powered wheelchair, including the battery, as 
checked baggage, consistent with the requirements of 49 CFR 
175.10(a)(19) and (20) and the provisions of paragraph (f) of this 
section.
    (1) Carriers may require that qualified individuals with a 
disability wishing to have battery-powered wheelchairs transported on a 
flight (including in the cabin) check in one hour before the scheduled 
departure time of the flight. If such an individual checks in after 
this time, the carrier shall nonetheless carry the wheelchair if it can 
do so by making a reasonable effort, without delaying the flight.
    (2) If the battery on the individual's wheelchair has been labeled 
by the manufacturer as non-spillable as provided in 49 CFR 
173.159(d)(2), or if a battery-powered wheelchair with a spillable 
battery is loaded, stored, secured and unloaded in an upright position, 
the carrier shall not require the battery to be removed and separately 
packaged. Notwithstanding this requirement, carriers may remove and 
package separately any battery that appears to be damaged or leaking.
    (3) When it is necessary to detach the battery from the wheelchair, 
carriers shall, upon request, provide packaging for the battery meeting 
the requirements of 49 CFR 175.10(a)(19) and (20) and package the 
battery. Carriers may refuse to use packaging materials or devices 
other than those they normally use for this purpose.
    (4) Carriers shall not drain batteries.
    (5) At the request of a passenger, a carrier shall stow a folding, 
break-down or collapsible battery-powered wheelchair in the passenger 
cabin stowage area as provided in paragraph

[[Page 10537]]

(e) of this section. If the wheelchair can be stowed in the cabin 
without removing the battery, the carrier shall not remove the battery. 
If the wheelchair cannot be stowed in the cabin without removing the 
battery, the carrier shall remove the battery and stow it in the 
baggage compartment as provided in paragraph (g)(3) of this section. In 
this case, the carrier shall permit the wheelchair, with battery 
removed, to be stowed in the cabin.
    (h) Individuals with disabilities shall be permitted to provide 
written directions concerning the disassembly and reassembly of their 
wheelchairs.

[FR Doc. 98-5525 Filed 3-3-98; 8:45 am]
BILLING CODE 4910-62-P