[Federal Register Volume 64, Number 147 (Monday, August 2, 1999)]
[Rules and Regulations]
[Pages 41781-41783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19447]



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DEPARTMENT OF TRANSPORTATION

14 CFR Parts 254 and 382

[Docket OST-99-5099]
RIN 2105-AC77


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

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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SUMMARY: The Department is amending its rules implementing the Air 
Carrier Access Act of 1986 (ACAA) to lift an existing cap on the amount 
of compensation airlines have to pay to passengers for loss or damage 
of their wheelchairs and other assistive devices. The rule is intended 
to provide additional relief to passengers who use expensive assistive 
devices that are lost, destroyed or damaged in the course of airline 
travel.

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

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant 
General Counsel for Regulation and Enforcement, Department of 
Transportation, 400 7th Street, SW., Room 10424, Washington, DC, 20590. 
(202) 366-9306 (voice); (202) 755-7687 (TDD); 202-366-9313 (fax); 
[email protected] (e-mail).

SUPPLEMENTARY INFORMATION: This final rule concerns the issue of 
compensation for loss of or damage to wheelchairs or other assistive 
devices. The current regulation provides that:
    With respect to domestic flights, carriers shall not limit 
liability for loss, damage or delay concerning wheelchairs or other 
mobility aids to any amount less than twice the liability limits 
established for passengers' luggage under 14 CFR Part 254. (14 CFR 
382.43(b))

This means that carriers are not required to pay compensation exceeding 
$2500 for loss of or damage to wheelchairs or other assistive devices, 
given the present $1250 liability limit for luggage that Part 254 
permits carriers to impose in domestic transportation. (The Department 
has recently proposed raising this limit to $2500, which would have the 
effect, under the present ACAA rule, of raising the liability limit for 
wheelchairs and other assistive devices to $5000. ) People with 
disabilities have complained that this does not provide adequate 
compensation for the loss of or serious damage to expensive equipment, 
such as power wheelchairs that may cost $15,000 or more. Given that a 
passenger whose wheelchair is lost or seriously damaged will lose his 
or her mobility at the destination, people with disabilities believe 
that the Department should require airlines to do more, such as pay 
full compensation for the loss and make repair or loaner service 
available.
    The Department considered this issue in the original ACAA 
rulemaking (see 55 FR 8038; March 6, 1990). In response to similar 
disability group comments at that time, the Department responded that 
requiring carriers to pay full replacement value did not sufficiently 
recognize the ability of passengers to purchase insurance for such 
expensive items. Consequently, the final rule permitted airlines to cap 
their liability at twice the liability limit for general baggage.
    On February 17, 1999, the Department reopened the issue and 
published a notice of proposed rulemaking (NPRM) in the Federal 
Register (64 FR 7833). Based on anecdotal information, the Department 
believed that the majority of wheelchairs used in air travel are manual 
wheelchairs, many of which cost less than $2500. However, the 
Department further believed that other travelers used power 
wheelchairs, which typically are stowed as checked baggage and many of 
which, if lost, damaged, or destroyed, could cost substantially more 
than $2500 to repair or replace (e.g., over $13,000 in one case brought 
to our attention). However, we believed that there would be relatively 
few instances of wheelchair loss or damage that would exceed $2500, 
limiting the cost exposure to airlines of removing the current cap.

Comments

    The Department received thirty-two comments from individuals, 
associations, and interest groups. These included the Air Transport 
Association of America (ATA), representing the views of major airlines, 
and various individuals and groups in the disability community.

Claim Experience

    Both the ATA and the disability community agreed that the majority 
of damage to wheelchairs occurs to manual units, with repair or 
replacement costs under $2500. The ATA said that ATA member airlines 
receive less than fifty complaints a year related to wheelchairs and 
ninety percent of them are for less than $500. The ATA also reported 
that claims for standard wheelchairs average $450 to $500 per claim and 
claims for electric wheelchairs average $1500 per claim. ATA mentioned 
that its members had voluntarily paid a few claims in excess of 
$20,000. Also, the Eastern Paralyzed Veterans Association (EPVA), which 
does wheelchair repairs at New York City airports, reported that it 
repaired 31 wheelchairs in 1998, at an average cost of $467.95 per 
repair.

Elimination of Liability Limit

    A common theme throughout the disability community comments was 
that wheelchairs and other assistive devices are not ordinary luggage. 
Disabled people must take their assistive devices because their 
mobility, independence, and health depend on them. When a disabled 
person travels with an air carrier, he or she places his or her means 
of mobility and livelihood into the hands of the airline. According to 
some of the comments, airline personnel sometimes disregard the 
instructions given to them by the passenger concerning how to properly 
handle the assistive device, or may misunderstand the instructions 
because they are not fluent in English. Furthermore, commenters said 
that fear of having to make an expensive repair if their device is 
damaged may deter some people from traveling by air.
    Disability community comments also asserted that the amount of 
damages should be the full replacement or repair cost because 
depreciation in value is too hard to calculate. They also asked for 
some sort of system through which the airline would provide a loaner 
device during the period when the passenger's own device was being 
repaired. Some comments also addressed the issue of insurance. The 
comments asserted that coverage for assistive devices is often excluded 
from homeowner policies. They said it would be unfair to require 
passengers to purchase extra insurance for something they had no choice 
but to take with them. Finally, these comments expressed a belief that 
lifting the liability cap will provide an incentive for airlines to 
train their employees to comply with ACAA regulations and properly 
handle assistive devices.
    The ATA's comment said that the proposed rule did not address all 
of the issues associated with wheelchair handling. Instead of a final 
rule, ATA supported issuing a broader advance notice of proposed 
rulemaking (ANPRM) on the general issue of wheelchair handling. ATA 
also suggested that passengers should remain responsible for some part 
of the risk of transporting expensive equipment, such as through 
obtaining insurance.
    ATA stressed three other points. First, a two-hour advance check in 
deadline should be required for people wishing to transport an 
assistive device. This extra time would allow airlines to prepare 
adequately for carrying of these

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devices, while avoiding flight delays. Additional time is particularly 
important if more than one electric wheelchair is to be transported on 
the same flight. Second, ATA said that passengers should be required to 
provide written instructions on how to disassemble batteries and 
delicate units. Third, ATA questioned the practicality of requiring 
airlines to maintain an adequate supply of wheelchairs at more than 500 
commercial airports in order to provide loaners. ATA pointed out that 
local supply stores are available if a loaner is needed.

Cost Calculation

    In the NPRM, the Department sought comment on whether additional 
guidance is necessary on how compensation should be calculated (e.g., 
depreciated vs. replacement cost). Disability community comments said 
that there is no market for used, customized assistive devices, thus 
making depreciation in value too hard to calculate. Most of these 
comments supported requiring airlines to pay the full replacement cost 
for a destroyed wheelchair (i.e., the cost of a new wheelchair, 
regardless of the value of the device that had been destroyed). ATA did 
not comment specifically on this issue, but did express concern about 
paying for damage that was done before the chair was given to the 
airline for transport. ATA also expressed concern that lifting the 
liability cap would allow higher consequential damages to be assessed 
against carriers in claims resulting from damaged or destroyed 
wheelchairs.

DOT Response

    The Department is persuaded by the comments of the disability 
community that wheelchairs and other assistive devices should be viewed 
differently from other baggage. For wheelchair users, their devices are 
essential, not only to the purpose of a trip, but for all daily 
activities. The information provided in the comments confirms the 
Department's impression that there are likely to be relatively few 
instances where carriers will have to pay large claims, even in the 
absence of the current regulatory provision allowing carriers to limit 
their liability. For this reason, the cost exposure to carriers of 
changing the rule will not be large.
    On the other hand, from the perspective of an individual whose 
expensive electric wheelchair is lost or destroyed, the expense of 
replacing it can be very difficult to bear. Consequently, we believe 
that the fairest solution is to remove the current liability cap. The 
issue is a straightforward one, which commenters discussed thoroughly, 
and we see no need for an ANPRM as ATA suggested. Wheelchair users may 
still want to purchase insurance, which may expedite the payment of 
claims. The ultimate responsibility for damage that occurs while a 
passenger's device is in the hands of the carrier should rest with the 
carrier, however.
    Under existing DOT baggage rules, carriers are responsible for 
consequential damages (see 14 CFR part 254). There is no DOT 
administrative mechanism for awarding these damages; they would be paid 
through the carriers' claims processes or awarded by the courts. This 
rule, while removing a regulatory provision allowing carriers to limit 
their liability for consequential as well as other damages, would not 
change this basic pattern. It is possible that, as some disability 
community comments suggested, the possibility of larger consequential 
damage awards would increase carriers' incentive to ensure that 
personnel who handle wheelchairs are well trained.
    With respect to the way in which costs of settlements are 
calculated, the Department is persuaded by disability community 
comments that it is difficult to establish an accurate depreciated 
value for electric wheelchairs. In the absence of a significant 
aftermarket for these often individually-tailored devices, there is no 
parallel to a ``blue book'' value that can be accurately assigned. On 
the other hand, it may not be fair to airlines to assess the current 
replacement cost of a device. For example, a wheelchair that cost 
$10,000 two years ago may today, because of changes in the equipment or 
in the market for new wheelchairs, cost $12,000. The $2000 difference 
in the purchase price of the device cannot be attributed to any action 
on the airlines' part. For this reason, in the case of a device that is 
lost or damaged so badly that it must be replaced, the airline would be 
responsible for the original purchase price ($10,000 in the example 
above) rather than the total cost of a new device. The statement of 
this criterion in the rule refers only to the cost of repair or 
replacement of the device itself; it does not, for example, establish a 
limit on consequential damages.
    The Department believes that requiring the payment of the original 
purchase price strikes a reasonable balance between the current 
industry practice of using depreciated value and the proposal, 
advocated by disability community comments, of requiring carriers to 
pay the current replacement cost of a wheelchair. In addition, this 
method should simplify the payment of claims and minimize the number 
and scope of disputes between passengers and airlines. As is the case 
today, carriers would remain free to require passengers to document the 
original purchase price of a lost or damaged assistive device (e.g., 
purchase receipt, credit card statement, canceled check). In a case 
where an assistive device is damaged but repairable, the proper measure 
of compensation is quite clearly the cost of the repair. The Department 
believes that airlines can avoid the potential problem of being asked 
to pay for pre-existing damage by inspecting the device and documenting 
anything that is wrong with it when the passenger checks in, as 
carriers commonly do with baggage.
    The Department's ACAA rule is not intended to require compensation, 
to any greater extent than courts might award, merely for minor 
cosmetic damage to wheelchairs or assistive devices. Neither this 
provision nor --382.43(a), which requires carriers to return 
wheelchairs and assistive devices to passengers in the condition 
received by the carrier, would require the carrier, for example, to 
replace a wheelchair frame that had suffered a small dent or scratch 
that did not impair the structural soundness or functioning of the 
device.
    In the NPRM, the Department sought comment on whether it is 
desirable and practical to require that airlines provide a ``loaner'' 
device during the period when the damaged device is being repaired or 
replaced. While a wheelchair is essential equipment, without which the 
passenger can be stranded, the Department agrees with the ATA that it 
would be impractical to require each airline to maintain an adequate 
supply of wheelchairs at more than 500 commercial airports. As pointed 
out in the comments, many devices are customized to fit an individual's 
specific needs, and it could be extremely burdensome to require 
airlines to come up with the same or similar type of wheelchair. 
Information about where to obtain a ``loaner'' is available in many 
locations from the disability community, medical equipment suppliers, 
or the airlines themselves. We note that the cost of a loaner could 
constitute consequential damages for which, in some circumstances, a 
carrier could be liable.
    The ATA recommended permitting carriers to require a two-hour 
advance check-in for passengers wishing to transport electric 
wheelchairs. The Department does not have, nor did the ATA present, any 
data to support a contention that a mandatory check-in period of this 
length would have a

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significant effect on preventing damage to wheelchairs. On the other 
hand, carrier personnel are more likely to do a good job of preparing 
the wheelchair for transportation if they are not trying to do so at 
the last minute.
    The Department's existing ACAA regulation has two provisions that 
can help carriers avoid ``last-minute'' problems. First, 
Sec. 382.41(g)(1) permits carriers to require passengers wanting to 
transport electric wheelchairs to check in an hour before the scheduled 
departure time of the flight. This is consistent with the now-pervasive 
industry recommendation that all passengers arrive an hour before 
flight time.
    As an interpretive matter, we emphasize that the purpose of the 
one-hour advance check-in deadline is to give carrier personnel enough 
time to prepare an electric wheelchair for transportation. Therefore, 
in this context, checking in means not just reporting at the gate or 
ticket counter but actually turning the wheelchair over to carrier 
personnel to prepare it for shipment. If a passenger checks in at the 
gate at 1:00 for a 2:00 flight, but does not surrender the wheelchair 
to carrier personnel until 1:45, the value of the one-hour advance 
check-in is diminished. Of course, the airline has the responsibility 
of providing the passenger, on request, a boarding chair and any 
necessary assistance in boarding of the aircraft.
    Second, Sec. 382.41(g)(2) states that if a passenger's wheelchair 
battery has been labeled by the manufacturer as non-spillable, or if 
the wheelchair can be loaded, stored, and secured in an upright 
position, the carrier shall not require the battery to be removed and 
separately packaged. In such instances, the airline need not 
disassemble the chair or separately box the battery, but only 
disconnect the battery and tape or otherwise insulate the battery 
terminals to prevent short circuits. By following this rule, carriers 
would not only reduce the probability of damage to the chair, but also 
reduce significantly the time it takes to stow the wheelchair and 
return it to the passenger on arrival.
    The ATA felt that passengers should be required to provide written 
instructions on the assembly and disassembly of batteries and other 
delicate equipment. The current rule authorizes individuals to provide 
written instructions concerning the assembly and disassembly of their 
wheelchairs, and we believe it is a good idea for them--and perhaps for 
wheelchair manufacturers as well--to do so. However, given that some 
passengers may not be fluent in English, or that some disabilities may 
impair an individual's ability to provide such instructions, or that 
documents can get lost, we do not believe it would be prudent to 
require passengers to provide written instructions or to allow carriers 
to require it as a condition for transportation or compensation.
    In order to avoid confusion for readers of 14 CFR part 254, the 
Department's baggage liability regulation, we have added a sentence 
pointing out that part 254's baggage liability limit does not apply to 
wheelchairs and other assistive devices used by passengers with 
disabilities.

Regulatory Analyses and Notices

    This final rule is not a significant rule under Executive Order 
12866 or a significant rule under the Department's Regulatory Policies 
and Procedures. Based on the data currently available to the Department 
and received in the comments, the Department estimates that the costs 
associated with this rule are not significant. The ATA submitted data 
indicating that ATA member airlines receive less than fifty complaints 
a year related to wheelchairs and that ninety percent of these claims 
are for less than $2500. Furthermore, the ATA asserts that virtually 
all of its claims are paid in full, even the ones above $2500. 
Therefore, the incremental costs of this rule are likely to be minimal.
    The Department certifies that this rule will not have a significant 
economic effect on a substantial number of small entities. The basis 
for this statement is the probability that the overall national annual 
costs would be minimal. Also, the Department does not believe that 
there would be sufficient Federalism impacts to warrant the preparation 
of a Federalism Assessment.

List of Subjects

14 CFR Part 254

    Air carriers, Consumer protection, Freight, Reporting and 
recordkeeping requirements.

14 CFR Part 382

    Air carriers, Civil rights, Individuals with disabilities, 
Reporting and recordkeeping requirements.

    Issued This 23rd Day of July 1999, at Washington, DC
Rodney E. Slater,
Secretary of Transportation.

    For the reasons set forth in the preamble, the Department amends 14 
CFR parts 254 and 382 as follows:

PART 254--DOMESTIC BAGGAGE LIABILITY

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

    Authority: Secs. 204, 403, 404 and 411, Pub. L. 85-726, as 
amended, 72 Stat. 743, 758, 760, 769; 49 U.S.C. 1324, 1373, 1374, 
1381.

    2. Section 254.4 is amended by adding a sentence at the end of the 
section to read as follows:


Sec. 254.4  Carrier liability.

    * * * Pursuant to 14 CFR 382.43(b), this limit does not apply to 
wheelchairs or other assistive devices used by passengers with 
disabilities.

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

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

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

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


Sec. 382.43  Treatment of mobility aids and assistive devices.

* * * * *
    (b) With respect to domestic transportation, the baggage liability 
limits of 14 CFR part 254 do not apply to liability for loss, damage, 
or delay concerning wheelchairs or other assistive devices. The 
criterion for calculating the compensation for a lost, damaged, or 
destroyed wheelchair or other assistive device shall be the original 
purchase price of the device.
* * * * *
[FR Doc. 99-19447 Filed 7-30-99; 8:45 am]
BILLING CODE 4910-62-P