[Federal Register Volume 76, Number 107 (Friday, June 3, 2011)]
[Proposed Rules]
[Pages 32107-32110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13802]



[[Page 32107]]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 382

[Docket No. DOT-OST-2011-0098]
RIN 2105-AD87


Nondiscrimination on the Basis of Disability in Air Travel; 
Accessibility of Aircraft and Stowage of Wheelchairs

AGENCY: Office of the Secretary (OST), Department of Transportation 
(DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Department of Transportation is seeking comment on whether 
or not the prohibition against using the seat-strapping method (placing 
a wheelchair across a row of seats using a strap kit with safety-
approval from the Federal Aviation Administration or applicable foreign 
government) to transport a passenger's wheelchair in the cabin of newer 
aircraft as set forth in DOT regulations should be deleted, modified, 
or remain as written.

DATES: Interested persons are invited to submit comments regarding this 
proposal. Comments must be received on or before August 2, 2011.

ADDRESSES: You may file comments identified by the docket number DOT-
OST-2011-0098 by any of the following methods:
     Federal Rulemaking Portal: go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave., SE., West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Ave., SE., between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal Holidays.
     Fax: (202) 493-2251.
    Instructions: You must include the agency name and docket number 
DOT-OST-2011-0098 or the Regulatory Identification Number (RIN) for the 
rulemaking at the beginning of your comment. All comments received will 
be posted without change to http://www.regulations.gov, including any 
personal information provided.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received in any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.) You may review DOT's 
complete Privacy Act statement in the Federal Register published on 
April 11, 2000 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or to the street 
address listed above. Follow the online instructions for accessing the 
docket.

FOR FURTHER INFORMATION CONTACT: Amna Arshad, Trial Attorney, Office of 
the Assistant General Counsel for Aviation Enforcement and Proceedings, 
Department of Transportation, 1200 New Jersey Avenue, SE., Room W96-
405, Washington, DC 20590, (202) 366-9179. You may also contact Blane 
A. Workie, Deputy Assistant General Counsel, Office of the Assistant 
General Counsel for Aviation Enforcement and Proceedings, Department of 
Transportation, 1200 New Jersey Avenue, SE., Room W96-464, Washington, 
DC 20590, (202) 366-9342. Arrangements to receive this notice in an 
alternative format may be made by contacting the above named 
individuals.

SUPPLEMENTARY INFORMATION:

Summary of Preliminary Regulatory Analysis

    The preliminary regulatory analysis suggests that the benefits of 
the proposed requirement to allow carriers to use the seat-strapping 
method to stow a passenger's manual folding wheelchair in the cabin of 
``new'' aircraft exceed its costs. This analysis, outlined in the table 
below, finds that the expected net present value of the rule over 20 
years at a 7% discount rate would amount to $243 million to $273 
million.

----------------------------------------------------------------------------------------------------------------
                                                                                  Present value (millions)
----------------------------------------------------------------------------------------------------------------
Total Quantified Benefits...............  20 years, 7% discounting.......  $243 to $273.
Total Quantified Costs *................  20 years, 7% discounting.......  $0.
Net Quantified Benefits.................  20 years, 7% discounting.......  $243 to $273.
----------------------------------------------------------------------------------------------------------------
* No basis for concluding that rule would impose quantified costs on any party.

Information on additional benefits and costs for which quantitative 
estimates could not be developed is provided in the Regulatory Analysis 
and Notices section.

Background

    The Air Carrier Access Act (ACAA) prohibits discrimination by U.S. 
and foreign carriers against passengers with disabilities. (See 49 
U.S.C. 41705) Its implementing regulation, 14 CFR Part 382, contains 
detailed standards and requirements to ensure carriers provide 
nondiscriminatory service to passengers with disabilities. This rule 
was updated on May 13, 2008, to, among other things, cover foreign air 
carriers. (73 FR 27614) This NPRM seeks comment on whether the 
Department should amend the provisions in the May 13, 2008, rule 
pertaining to the stowage of one passenger's manual folding wheelchair 
in the cabin of aircraft with 100 or more passenger seats (Sec.  
382.67) in order to allow the continued use of the seat-strapping 
method (placing a wheelchair across a row of seats using a strap kit 
approved by the Federal Aviation Administration or applicable foreign 
government).
    When the requirement for in-cabin space for a folding passenger 
wheelchair was originally adopted in 1990, the Department's intention 
was that new aircraft would have a designated space (e.g., a closet or 
similar compartment) in which a passenger's wheelchair could be stowed. 
(55 FR 8007) The practice of seat-strapping was not authorized, or even 
mentioned, in the regulatory text or the original rulemaking. The 
practice of seat-strapping was subsequently permitted under Department 
enforcement policy as an alternative to compliance with the 
regulation's requirement with respect to accommodating a passenger's 
manual folding wheelchair in the cabin. The Department determined in 
the final rule issued in 2008 that it was best not to carry over this 
policy to the new rule with respect to new aircraft (i.e., aircraft 
ordered after May 13, 2009, or delivered after May 13, 2011), and 
required, consistent with the intent of the original 1990 rule, that 
new aircraft be capable of accommodating a passenger's wheelchair in a 
priority stowage space in the cabin. The Department made this

[[Page 32108]]

decision because of concerns that seat-strapping (1) Is an awkward way 
of transporting a wheelchair in the cabin; (2) can result in less 
timely stowage and return of the passenger's wheelchair; (3) can be 
more conspicuous and bring unwanted attention to passengers with 
disabilities; (4) can be more likely to result in damage to the 
passenger's wheelchair; and (5) can result in last-minute surprise 
denials of service to other passengers holding confirmed tickets on 
full flights. Existing aircraft were not required to be retrofitted, 
however, and airlines could continue to use seat-strapping on those 
aircraft.
    Within six months of issuance of the May 13, 2008, final rule, the 
Department received two requests to continue the use of seat-strapping. 
The Department also received a request to stow a passenger's manual 
folding wheelchair in a designated cargo stowage space as an 
alternative to stowing the passenger's wheelchair in the cabin of 
aircraft. These requests were submitted pursuant to the ``equivalent 
alternative'' provision of the May 13, 2008, final rule, which allows 
carriers to request a determination that a carrier's policy, practice, 
or other accommodation provides substantially equivalent accessibility 
to passengers with disabilities compared to a specified provision of 
Part 382. (See 14 CFR 382.9)
    The Department denied the two requests to continue the use of seat-
strapping because it was contrary to the explicit language of the rule, 
and a change in the substance of the rule must be addressed through 
rulemaking. (See Response to Application of JetBlue Airways Corp., for 
an Equivalent Alternative Determination from 14 CFR 382.123(c), Docket 
DOT-OST-2008-0273-0063 (filed July 22, 2009); Response to Application 
of US Airways, Inc., for an Equivalent Alternative Determination from 
14 CFR 382.123(c), Docket DOT-OST-2008-0273-0064 (filed July 22, 
2009).) The Department, however, granted a request to stow a 
passenger's manual folding wheelchair in a designated cargo stowage 
space as an alternative to stowing the wheelchair in the cabin on a 
one-year trial basis subject to numerous conditions to ensure the same 
or greater accessibility to persons with a disability. (See Response to 
Application of Aerovias Del Continente Americano S.A., for an 
Equivalent Alternative Determination from 14 CFR 382.67 and 14 CFR 
382.123, Docket DOT-OST-2008-0273-0101.)
    The Department believes that the issues raised by carriers with 
regard to using the seat-strapping method should be considered further. 
Therefore, the Department is seeking comment on whether carriers should 
be allowed to use the seat-strapping method to stow a passenger's 
manual folding wheelchair in the cabin of ``new'' aircraft. The 
Department wants to make clear that, by issuing this NPRM, we are not 
taking a position on the merits of the use of seat-strapping. The 
proposed regulatory text is language that the Department could use if 
we decide to change the rule. Its presence does not mean that making 
such a change is the Department's policy preference at this time.
    In addition to comments on whether or not seat-strapping should be 
allowed as an alternative to the requirement for a designated stowage 
space in the cabin for a passenger wheelchair, the Department has 
developed a series of questions to assist us in determining the impact 
of seat-strapping on passengers with a disability, other members of the 
traveling public, and carriers. The Department will consider 
information in response to the questions posed below in determining 
whether carriers should be allowed to use seat-strapping. The 
Department specifically seeks comments on the following broad 
categories: Potential stigmatization associated with the seat-strapping 
method, impact on other passengers that may result from the seat-
strapping method, compliance cost if the prohibition on the use of the 
seat-strapping method remains, complaints relating to damage to 
wheelchairs or delay in the return and stowage of a passenger's 
wheelchair, training of carrier employees, identification of priority 
space for assistive devices, additional accommodations that may be 
required if seat-strapping method is permitted, and other miscellaneous 
questions.
Stigmatization
    (1) Concerns over potential stigmatization or embarrassment 
associated with the seat-strapping method, including but not limited 
to, how a passenger might feel if he or she is made aware that other 
passengers could be denied boarding on a full flight in order to 
accommodate his or her wheelchair in the cabin of the aircraft and how 
carriers might address such situations; and
    (2) Procedures currently used, or that could be created, to 
minimize the potential stigmatization or embarrassment associated with 
the seat-strapping method.
Impact on Other Passengers
    (1) The effect the seat-strapping method would have on passengers 
other than those stowing a wheelchair in the cabin of an aircraft;
    (2) Procedures currently used, or that could be created, to 
minimize the possibility that passengers will be denied boarding due to 
the use of the seat-strapping method; and
    (3) The number of passengers denied boarding per year due to the 
use of the seat-strapping method on old aircraft (i.e., aircraft 
ordered on or before May 13, 2009, or aircraft delivered on or before 
May 13, 2011) and a description of the process by which such data were 
collected.
Compliance Cost
    (1) The cost to carriers if the prohibition on the use of the seat-
strapping method remains as currently written in 14 CFR 382.123(c) 
(i.e., prohibited on any aircraft ordered after May 13, 2009, or 
delivered after May 13, 2011);
    (2) The effects, other than cost, that continuing the prohibition 
of the seat-strapping method would have on carriers; and
    (3) Benefits to using the seat-strapping method, aside from cost 
savings to carriers, over the requirement to have a priority stowage 
space.
    (4) Any increased costs to carriers, such as increased purchases of 
wheelchair strapping kits, that would result from allowing the seat-
strapping method.
Complaints Regarding Damage to Wheelchairs and Timely Stowage and 
Return of a Passenger's Wheelchair
    (1) Concerns regarding damage to a wheelchair if the seat-strapping 
method is allowed;
    (2) Complaints received regarding wheelchair damage from using the 
seat-strapping method;
    (3) Complaints received regarding wheelchair damage from stowing a 
wheelchair in a priority space in the cabin (e.g., closets), using a 
method other than the seat-strapping method; and
    (4) Concerns regarding less timely stowage and return of a 
passenger's manual folding wheelchair when using the seat-strapping 
method.
Training
    (1) How do carriers currently ensure that their employees know that 
passengers can use the seat-strapping method to stow wheelchairs; and
    (2) Whether the existing requirement for carriers to train their 
public contact employees to proficiency on the proper and safe 
operation of any equipment used to accommodate passengers with a 
disability is sufficient to ensure carrier

[[Page 32109]]

employees know the proper manner in which stow a wheelchair across a 
row of seats using a strap kit.
Identification of Priority Space for Stowage of Assistive Devices
    (1) Whether the Department should require carriers to visually 
identify through some sort of placard (e.g., a placard that notes the 
space is a ``Priority Stowage Space for Assistive Devices,'' with the 
International Symbol for Access) that wheelchairs, other mobility aids, 
and other assistive devices have priority for stowage in the cabin 
compartment over other items; and
    (2) Whether there is any benefit in requiring airlines to inform 
passengers of the location of seats where a folding manual wheelchair 
may be stowed.
Additional Accommodations if Seat Strapping Method Is Allowed
    (1) Whether the dimensions of a wheelchair that must fit without 
disassembly into the priority space currently 13 inches by 36 inches by 
42 inches or less should be increased if the Department allows carriers 
to use the seat-strapping method as a means of stowing a folding manual 
wheelchair in the passenger cabin;
    (2) Given the wide variety of wheelchairs and mobility devices on 
the market, what dimensions would be a reasonable compromise between 
the needs of passengers and the space constraints of carriers using the 
seat-strapping method to stow wheelchairs; and
    (3) If seat-strapping is allowed, should carriers be required to 
accommodate more than one folding wheelchair in the passenger cabin 
when the stowage of additional wheelchairs would not displace other 
passengers.
Other
    (1) Whether the Department should prohibit or allow U.S. and 
foreign carriers to remove existing closets or other priority spaces 
used for stowing a passenger's wheelchair on aircraft covered by Part 
382 (i.e., should any requirement that is adopted only apply to new 
aircraft);
    (2) Whether the Department should allow the use of the seat-
strapping method only on single-aisle aircraft as there is sufficient 
space for a closet or other priority stowage space on twin-aisle 
aircraft; and
    (3) Any other information or data that are relevant to the 
Department's decision.
    We invite all interested persons to comment on the issues raised in 
this notice. Our final action will be based on the comments and 
supporting evidence filed in this docket and on our own analysis.

Regulatory Analysis and Notices

A. Executive Order 12866 (Regulatory Planning and Review), DOT 
Regulatory Policies and Procedures, and Executive Order 13563 
(Improving Regulation and Regulatory Review)
    This action has been determined to be significant under Executive 
Order 12866 and the Department of Transportation's Regulatory Policies 
and Procedures. It has been reviewed by the Office of Management and 
Budget in accordance with Executive Order 12866 (Regulatory Planning 
and Review) and Executive Order 13563 (Improving Regulation and 
Regulatory Review) and is consistent with the requirements in both 
orders. Executive Order 13563 refers to nonquantifiable values, 
including equity and fairness.
    The Regulatory Evaluation estimates that the monetary benefit of 
allowing airlines to use seat-strapping exceeds the monetary costs. 
Specifically, the benefit of allowing carriers to use seat-strapping 
would likely result in a total net revenue gain over a 20-year period 
of $243-$273 million present value. This represents revenue derived 
from seats that would not have to be removed in order to make space for 
a permanent wheelchair stowage area. No mandatory additional cost will 
be imposed on carriers if seat-strapping is allowed as an alternative 
to complying with the current requirement to provide a priority space 
for wheelchair stowage. It is unclear whether allowing carriers to use 
the seat-strapping method would impose costs related to damage or 
delayed stowage and return of wheelchairs on passengers with 
disabilities. Based on a review of the Department's consumer complaint 
database and discussions with the industry, the Department has no 
evidence that such consequences are likely and seeks comment 
particularly from persons with disabilities and disability 
organizations. Furthermore, non-disabled, ticketed passengers may be 
required to forego their seats on a full flight in order to accommodate 
a wheelchair, but the Department has not received any complaints 
regarding this practice. We request from the public any information 
that will improve the accuracy of our estimates or aid us in 
determining whether seat-strapping offers advantages or disadvantages 
that have not been considered. A copy of the Preliminary Regulatory 
Analysis has been placed in the docket.
B. Executive Order 13132 (Federalism)
    This Notice of Proposed Rulemaking has been analyzed in accordance 
with the principles and criteria contained in Executive Order 13132 
(``Federalism''). This notice does not propose any regulation that has 
substantial direct effects on the States, the relationship between the 
national government and the States, or the distribution of power and 
responsibilities among the various levels of government. It does not 
propose any regulation that imposes substantial direct compliance costs 
on State and local governments. It does not propose any regulation that 
preempts State law, because States are already preempted from 
regulating in this area under the Airline Deregulation Act, 49 U.S.C. 
41713. Therefore, the consultation and funding requirements of 
Executive Order 13132 do not apply.
C. Executive Order 13084
    This notice has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13084 (``Consultation and 
Coordination With Indian Tribal Governments''). Because none of the 
options on which we are seeking comment would significantly or uniquely 
affect the communities of the Indian tribal governments or impose 
substantial direct compliance costs on them, the funding and 
consultation requirements of Executive Order 13084 do not apply.
D. Regulatory Flexibility Act
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant economic impact on a substantial number of small entities. 
We hereby certify that the rule proposed in this notice of proposed 
rulemaking will not have a significant economic impact on a substantial 
number of small entities. A direct air carrier or a foreign air carrier 
is a small business if it provides air transportation only with small 
aircraft (i.e., aircraft designed to have a maximum passenger capacity 
of not more than 60 seats or a maximum payload capacity of not more 
than 18,000 pounds). See 14 CFR 399.73. The subject matter of this 
notice only affects aircraft with 100 or more passenger seats. 
Therefore, this requirement would not apply to small businesses. In 
addition, the proposed change would lessen the burden on U.S. and 
foreign air carriers by allowing the carriers to retain their current 
seating configuration and not remove seats to install a priority space 
in the cabin for a passenger

[[Page 32110]]

wheelchair. We invite comment to facilitate our assessment of the 
potential impact of these initiatives on small entities.
E. Paperwork Reduction Act
    This rule imposes no new information reporting or record keeping 
necessitating clearance by the Office of Management and Budget.
F. Unfunded Mandates Reform Act
    The Department has determined that the requirements of Title II of 
the Unfunded Mandates Reform Act of 1995 do not apply to this notice.

    Issued this 26th day of May 2011, at Washington, DC.
Ray LaHood,
Secretary of Transportation.

List of Subjects in 14 CFR Part 382

    Air carriers, Civil rights, and Individuals with disabilities.

    For the reasons set forth in the preamble, the Department is 
proposing to amend 14 CFR part 382, as follows:

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

    1. The authority citation for part 382 continues to read as 
follows:

    Authority:  49 U.S.C. 41705.

    2. Section 382.67 is revised to read as follows:


Sec.  382.67  What is the requirement for priority space in the cabin 
to store passengers' wheelchairs?

    (a) As a carrier, you must ensure that there is a priority space 
(e.g., a closet or a row of seats where a wheelchair may be strapped 
using a strap kit approved by the Federal Aviation Administration or 
applicable foreign government) in the cabin of sufficient size to stow 
at least one typical adult-sized folding, collapsible, or break-down 
manual passenger wheelchair, the dimensions of which are 13 inches by 
36 inches by 42 inches or less without having to remove the wheels or 
otherwise disassemble it. This requirement applies to any aircraft with 
100 or more passenger seats.
    (b) This space must be other than the overhead compartments and 
under-seat spaces routinely used for passengers' carry-on items.
    (c) If passengers holding confirmed reservations are not able to 
travel on a flight because their seats are being used to stow a 
passenger's wheelchair as required by paragraph (a) of this section, 
carriers must compensate those passengers in an amount to be calculated 
as provided for in instances of involuntary denied boarding under 14 
CFR part 250, where part 250 applies.
    (d) As a carrier, you must never request or suggest that a 
passenger should not stow his or her wheelchair in the cabin to 
accommodate other passengers (e.g., informing a passenger that stowing 
a wheelchair in the cabin will require other passengers to be removed 
from the flight), or for any other non-safety related reason (e.g., 
easier for the carrier if the wheelchair is stowed in the cargo).
    (e) As a foreign carrier, you must meet the requirement of 
paragraph (a) of this section for new aircraft ordered after May 13, 
2009, or delivered after May 13, 2010. As a U.S. carrier, this 
requirement applies to you with respect to new aircraft you operate 
that were ordered after April 5, 1990, or which were delivered after 
April 5, 1992.


Sec.  382.123  [Amended]

    3. Section 382.123(c) is removed.

[FR Doc. 2011-13802 Filed 6-2-11; 8:45 am]
BILLING CODE 4910-9X-P