[Federal Register Volume 88, Number 146 (Tuesday, August 1, 2023)]
[Rules and Regulations]
[Pages 50020-50036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16178]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 382

[Docket No. DOT-OST-2021-0137]
RIN No. 2105-AE89


Accessible Lavatories on Single-Aisle Aircraft

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Transportation (Department or DOT) is 
issuing a final rule to amend the Department's Air Carrier Access Act 
(ACAA) regulation to improve the accessibility of lavatories on single-
aisle aircraft. This final rule is intended to ensure that our air 
transportation system is safe and accessible to individuals with 
disabilities.

DATES: This rule is effective October 2, 2023.

FOR FURTHER INFORMATION CONTACT: Robert Gorman, Senior Trial Attorney, 
Office of Aviation Consumer Protection, U.S. Department of 
Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590, 202-366-
9342, 202-366-7152 (fax), [email protected] (email). You may also 
contact Blane Workie, Assistant General Counsel, Office of Aviation 
Consumer Protection, Department of Transportation, 1200 New Jersey Ave. 
SE, Washington, DC 20590, 202-366-9342, 202-366-7152 (fax), 
[email protected].

SUPPLEMENTARY INFORMATION: 

1. Purpose of Regulatory Action

    The Department is committed to ensuring that our air transportation 
system is safe and accessible for all. This includes taking necessary 
action to remove transportation barriers that exist for individuals 
with disabilities. Like all individuals, those with disabilities rely 
on transportation for all aspects of their lives. Transportation 
connects individuals to family and friends, to jobs and to vital 
services, and it opens the door to opportunity.
    While accessible lavatories have been required on twin-aisle 
aircraft for decades, until now, there has been no requirement that 
airlines provide accessible lavatories on single-aisle aircraft. 
However, single-aisle aircraft are increasingly used by airlines for 
long-haul flights because the fuel efficiency and range of the aircraft 
have improved. The percentage of flights between 1,500 and 3,000 miles 
flown by single-aisle aircraft increased from less than 40 percent in 
1991 to 86 percent in 2021.\1\ These flights can last four or more 
hours.
---------------------------------------------------------------------------

    \1\ TS T-100 All Segment data, retrieved November 2022.
---------------------------------------------------------------------------

    The inability to safely access and use the lavatory on long flights 
can impact the dignity of passengers with disabilities and deter them 
from traveling by air, limiting their independence and freedom to 
travel. This final rule addresses a human rights issue and promotes 
freedom to travel for people with disabilities. It is an unfortunate 
reality that today, many air travelers with disabilities, knowing that 
they will not be able to use the lavatory during a flight, may 
dehydrate themselves or even withhold bodily functions so that they do 
not need to urinate. These actions can cause adverse health effects, 
including increased chances of urinary tract infections. Other 
passengers may use adult diapers or catheters, which they may find 
degrading and uncomfortable. Some wheelchair users avoid flying 
altogether. For example, a recent survey conducted by Paralyzed 
Veterans of America (PVA) and 11 other veterans' and disability 
advocacy organizations found that 56% of respondents reported that 
inaccessible lavatories were reason enough to choose not to fly unless 
absolutely necessary.\2\ These are conditions that passengers without 
disabilities would justifiably consider intolerable.
---------------------------------------------------------------------------

    \2\ Comment of PVA, available at https://www.regulations.gov/comment/DOT-OST-2021-0137-0350, Exhibit A. PVA represents over 
16,000 veterans of the U.S. armed forces with spinal cord injury or 
disease. See https://pva.org/find-support/membership/.
---------------------------------------------------------------------------

    Regulation is necessary because the private marketplace has not met 
this basic need for accessible lavatories. While a relatively small 
number of single-aisle aircraft do have lavatories that approximate the 
size and functionality of accessible twin-aisle aircraft lavatories, 
the vast majority of aircraft lavatories are too small to accommodate 
on-board wheelchairs or attendants. While accessible lavatory options 
do exist in the marketplace, airlines have largely chosen to forgo them 
in favor of an additional row of seats or extra galley space. Existing 
lavatories often lack accessible features and a safe and reliable means 
of accessing those lavatories using an on-board wheelchair. Information 
regarding the accessible features of lavatories is difficult to obtain.
    We expect this rule to directly benefit millions of individuals 
with mobility impairments who cannot independently access the lavatory 
as a result of neuromuscular injury, disease, or

[[Page 50021]]

weakness. The rule will also benefit individuals with visual or other 
impairments who can access the lavatory but need accessible features 
within the lavatory. We also anticipate that the rule will indirectly 
benefit passengers of size and families with small children.

2. Statutory Authority

    The Air Carrier Access Act (ACAA), 49 U.S.C. 41705, prohibits 
discrimination in airline service based on disability. When enacted in 
1986, the ACAA applied only to U.S. air carriers. On April 5, 2000, the 
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century 
amended the ACAA to include foreign carriers. The ACAA, while 
prohibiting discrimination by U.S. and foreign air carriers in air 
transportation against qualified individuals with disabilities, does 
not specify how carriers must act to avoid such discrimination. The 
statute similarly does not specify how the Department should regulate 
with respect to these issues. In addition to the ACAA, the Department's 
authority to regulate nondiscrimination in airline service on the basis 
of disability is based in the Department's rulemaking authority under 
49 U.S.C. 40113, which states that the Department may take action that 
it considers necessary to carry out this part, including prescribing 
regulations. The Department, through reasonable interpretation of its 
statutory authority, has issued regulations (at 14 CFR part 382) that 
require carriers to provide nondiscriminatory service to individuals 
with disabilities.

3. Summary of Rulemaking Activities

    In 2016, the Department established the Advisory Committee on 
Accessible Air Transportation (ACCESS Advisory Committee or Committee) 
to negotiate and develop proposed regulations on various issues, 
including accessible lavatories on single-aisle aircraft.\3\ The 
Committee consisted of stakeholders including disability rights 
advocates, airlines, flight attendants, aircraft manufacturers, and the 
Department itself. On November 22, 2016, the Committee reached 
consensus on recommendations for new regulatory proposals to improve 
the accessibility of lavatories on single-aisle aircraft.\4\ The 
agreement included recommendations for both short-term and long-term 
accessibility improvements. During the negotiated rulemaking process, 
the Department indicated that if the stakeholders reached consensus, 
the Department would act in good faith to propose rules reflecting that 
consensus.
---------------------------------------------------------------------------

    \3\ 81 FR 26178 (May 2, 2016).
    \4\ https://www.transportation.gov/office-general-counsel/negotiated-regulations/final-resolution-access-committee.
---------------------------------------------------------------------------

    In June 2019, the Department announced that the most appropriate 
course of action was to conduct two separate accessible lavatory 
rulemakings: one for short-term improvements, and one for long-term 
improvements. On January 2, 2020, the Department published a notice of 
proposed rulemaking (NPRM) relating to short-term improvements (the 
Part 1 NPRM).\5\ In that rulemaking, the Department proposed 
improvements to lavatory interiors, additional training and information 
procedures relating to lavatory accessibility, and improvements to the 
aircraft's on-board wheelchair (OBW), but without requiring airlines to 
expand the size of the lavatory itself. The comment period to the Part 
1 NPRM closed on March 2, 2020.
---------------------------------------------------------------------------

    \5\ 85 FR 27 (January 2, 2020), available at https://www.federalregister.gov/documents/2020/01/02/2019-27631/accessible-lavatories-on-single-aisle-aircraft-part-1.
---------------------------------------------------------------------------

    On December 16, 2021, the Department and the Architectural 
Transportation Barriers and Compliance Board (Access Board) held a 
joint public meeting to gather additional information regarding 
proposed improvements to the OBW. In connection with this public 
meeting, the Department reopened the comment period for the Part 1 NPRM 
from December 16, 2021, to January 17, 2022.
    On March 28, 2022, the Department issued an NPRM regarding long-
term accessibility improvements that would require airlines to install 
larger lavatories on certain single-aisle aircraft to permit a 
qualified individual with a disability to perform a seated independent 
(unassisted) and dependent (assisted) transfer from an OBW to and from 
the toilet (the Part 2 NPRM).\6\ In that rulemaking, the Department 
expressed its intention to issue one final rule regarding accessible 
lavatories that would address the issues in both the Part 1 NPRM and 
the Part 2 NPRM. The comment period to the Part 2 NPRM closed on May 
28, 2022.
---------------------------------------------------------------------------

    \6\ 87 FR 17215 (March 28, 2022), available at https://www.federalregister.gov/documents/2022/03/28/2022-05869/accessible-lavatories-on-single-aisle-aircraft-part-2.
---------------------------------------------------------------------------

4. Summary of the Major Provisions

                 Estimated Costs of On-Condition Actions
------------------------------------------------------------------------
          Subject                   Final Rule           Applicability
------------------------------------------------------------------------
Lavatory Interiors.........  Lavatory must have grab  New single-aisle
                              bars, accessible         aircraft with
                              faucets and controls,    125+ seats,
                              accessible call          delivered 3 years
                              buttons and door         after effective
                              locks, minimum           date of the rule.
                              obstruction to the
                              passage of an on-board
                              wheelchair (OBW), toe
                              clearance, and an
                              available visual
                              barrier for privacy.
                              Retrofitting not
                              required, but
                              accessibility features
                              are required if
                              lavatory is replaced.
OBW improvements...........  OBW must facilitate      Operators of
                              safe transfer to and     single-aisle
                              from the aircraft        aircraft with
                              seat, have locking       125+ seats, 3
                              wheels, and have         years after
                              adequate padding,        effective date of
                              supports and             the rule
                              restraints..
                             OBW must permit partial
                              entry into lavatory in
                              forward position to
                              permit transfer from
                              OBW to toilet.
                             OBW must be
                              maneuverable into the
                              lavatory so as to
                              completely close the
                              lavatory door; if this
                              is not possible in the
                              short term when
                              lavatories are not
                              required to be
                              expanded beyond
                              current measures,
                              airlines must provide
                              visual barrier on
                              request.
                             Airlines must stow OBW
                              in any safe available
                              stowage space.
Training and Information...  Annual hands-on          Operators of
                              training required        single-aisle
                              regarding OBW use,       aircraft with 60+
                              stowage, and assisting   seats, 3 years
                              passengers to/from the   after effective
                              lavatory on the OBW.     date of the rule
                             Information required
                              within aircraft and on
                              airline web sites
                              regarding
                              accessibility features
                              of lavatory.
International Symbol of      Symbol must be removed   Operators of
 Accessibility.               from lavatories that     single-aisle
                              cannot accommodate an    aircraft with 60+
                              assisted independent     seats, 3 years
                              transfer from OBW to     after effective
                              toilet seat. Symbol      date of the rule
                              must be applied to
                              lavatories that can do
                              so.
Sharps and bio-waste.......  Airlines must develop    Operators of
                              procedures for           single-aisle
                              handling sharps and      aircraft with 60+
                              bio-waste and must       seats, 3 years
                              inform passengers of     after effective
                              those procedures on      date of the rule
                              request.

[[Page 50022]]

 
Expanded lavatory size.....  Lavatory must permit a   New single-aisle
                              person with a            aircraft with
                              disability and an        125+ seats,
                              attendant, both          ordered 10 years
                              equivalent in size to    or delivered 12
                              a 95th percentile        years after
                              male, to approach,       effective date,
                              enter, maneuver within   or on new type-
                              as necessary to use      certificated
                              all lavatory             aircraft designs
                              facilities, and leave,   filed 1 year
                              by means of the OBW,     after effective
                              in a closed space that   date.
                              affords privacy
                              equivalent to that
                              afforded to ambulatory
                              users.
------------------------------------------------------------------------

Discussion

I. Short-Term Improvements

A. Overview
1. NPRM and Comments
    The Part 1 NPRM addressed accessibility improvements that could be 
implemented on a relatively short-term basis that did not involve 
expanding the size of the lavatory itself. These improvements included 
accessible lavatory interiors, information and training requirements, 
and improvements to the aircraft's OBW. In general, the NPRM proposed 
performance standards rather than design standards.\7\ The Department 
also indicated that it was considering whether to prohibit the floor 
dimensions (footprint) of lavatories from being further reduced from 
current measurements, on the ground that further reduction would 
adversely impact accessibility.
---------------------------------------------------------------------------

    \7\ In general, performance standards describe a function that 
should be met, but leave flexibility in how to meet that standard. 
Design standards describe a function with greater technical 
specificity but may, as a result, limit the ways that such a 
standard could be met. Performance standards are consistent with 
Executive Order (E.O.) 12866, section 1(8) (``Each agency . . . 
shall, to the extent feasible, specify performance objectives, 
rather than specifying the behavior or manner of compliance that 
regulated entities must adopt.''). The Part 1 NPRM referenced DOT 
Order 2100.6 (2018), which provided guidance regarding its own 
rulemaking procedures, including a preference for performance 
standards. While the Department has repealed Order 2100.6, the 
adoption of performance standards remains consistent with E.O. 
12866.
---------------------------------------------------------------------------

    The Department received 336 comments to the Part 1 NPRM during the 
original comment period (January 2-March 2, 2020). The majority of 
comments were from individuals. All individual commenters either 
expressed support for the rule, or expressed the view that lavatories 
should be larger, or both. Broadly speaking, disability advocates 
expressed a preference for design standards over performance standards, 
observing that design standards are used for Amtrak and commuter rail. 
They supported the proposal that lavatory footprints should not be 
reduced beyond current measurements. They generally supported the 
information and training requirements. Airlines supported the 
Department's proposed improvements to lavatory interiors, including the 
adoption of performance standards. They also supported the Department's 
proposals for information, signage, and procedures for disposing of 
sharps (such as needles and syringes) and bio-waste (defined as any 
waste containing infectious materials or potentially infectious 
substances). However, they opposed the Department's OBW proposal in its 
entirety, arguing that the Department failed to adequately consult with 
stakeholders and failed to adequately consider safety. They also 
opposed the position that lavatory footprints must not be reduced from 
current measurements. Aircraft manufacturers (Airbus and Boeing) 
generally supported the Part 1 NPRM. Airbus generally commented that 
the proposals were feasible from an engineering perspective. Boeing 
supported the Department's view that at least one lavatory should not 
be reduced from existing measurements and supported the use of 
performance standards.
2. OBW Standards--Public Meeting and Comment
    As noted above, the Department and the Access Board held a joint 
public meeting to solicit input from stakeholders regarding OBW 
standards.\8\ The Department indicated that the meeting was intended to 
satisfy the consultation provisions of the negotiated rulemaking with 
respect to OBW standards.\9\ The Department specifically solicited 
comment from disability advocates, airlines, and aircraft manufacturers 
regarding all aspects of OBW design, including but not limited to 
costs, benefits, safety considerations, and stowage. The Department 
also made significant efforts to elicit data and comment from OBW 
manufacturers themselves, with no success; OBW manufacturers did not 
participate in the meeting or file comments. During the reopened 
comment period, the Department received a total of 12 comments from 
individuals and stakeholders.\10\ We will discuss the details of this 
meeting and stakeholder comments in greater detail below.
---------------------------------------------------------------------------

    \8\ Minutes of the meeting are available at https://www.regulations.gov/document/DOT-OST-2019-0180-0363.
    \9\ Specifically, the Access Advisory Committee agreed that the 
new OBW standards would apply to aircraft with FAA-certificated 
seating capacity of 125 seats or more, and that the OBW would: (1) 
permit passage in the aircraft aisle; (2) fit within available 
stowage space; and (3) not require modification to lavatory 
interiors. The stakeholders further agreed that DOT must ``consult 
with advocates, airlines, aircraft manufacturers, manufacturers of 
OBW, flight attendant association(s) and other stakeholders in 
developing these standards,'' and include the new standards in its 
NPRM.
    \10\ PVA, A4A/IATA, the Regional Airline Association (RAA), 
Spirit Airlines, Boeing, Airbus, the Transport Workers Union of 
America, and five individuals. PVA's letter was co-signed by All 
Wheels Up, the Christopher & Dana Reeve Foundation, Cure SMA, the 
Disability Rights Education & Defense Fund (DREDF), the Epilepsy 
Foundation, Hand in Hand: The Domestic Employers Network, the Health 
Equity Collaborative, the Muscular Dystrophy Association (MDA), the 
National Council on Independent Living (NCIL), the National 
Disability Rights Network (NDRN), and the United Spinal Association 
(United Spinal).
---------------------------------------------------------------------------

B. Section-by-Section Analysis

1. Improvements to Existing Lavatory Interiors
NPRM and Comments
    The Department proposed that grab bars be installed and positioned 
as required to meet the needs of individuals with disabilities. The 
proposed rule did not include a specific weight-support minimum 
threshold (e.g., 250 pounds). In keeping with the Department's 
preference for performance standards, we indicated that a specific 
weight threshold would be unduly prescriptive, and that grab bars must 
necessarily support significant weight in order to adequately meet the 
needs of individuals with disabilities. The Department sought comment 
on whether this general performance standard provides sufficient 
guidance to airlines and lavatory manufacturers. The Department sought 
comment on whether a weight-support minimum threshold is necessary, and 
if so, what that threshold would be. Airlines for America (A4A) and the 
International Air Transport Association (IATA) \11\ supported the

[[Page 50023]]

proposal and asked the Department to clarify in guidance or in the 
preamble that airlines may comply with the performance standard by 
reference to other Federal standards, such as Americans with 
Disabilities Act (ADA) standards. Boeing supported the Department's use 
of performance standards throughout the Part 1 NPRM.
---------------------------------------------------------------------------

    \11\ A4A is a trade association representing U.S. airlines. IATA 
is a trade association representing foreign airlines.
---------------------------------------------------------------------------

    Next, the Department proposed that lavatory faucets have controls 
with tactile information concerning temperature. Alternatively, 
airlines may comply with this requirement by ensuring that lavatory 
water temperature is adjusted to eliminate the risk of scalding for all 
passengers. The proposed rule would also require that automatic or 
hand-operated faucets shall dispense water for a minimum of five 
seconds for each application or while the hand is below the faucet. 
Here, A4A and IATA asked the Department to consider the increased 
chance of wasted water.
    Next, the Department proposed that attendant call buttons and door 
locks must be accessible to an individual seated in the lavatory. We 
sought comment on whether to further define ``accessible'' with respect 
to call buttons and door locks. For example, we sought comment on 
whether they should be discernible through the sense of touch and/or 
through specific means of communication such as braille, or whether 
airlines should be permitted to develop their own methods of providing 
accessibility. On this topic, the Consortium for Constituents with 
Disabilities (CCD) \12\ and the Ability Center of Greater Toledo urged 
the Department to require that buttons and door controls be marked to 
assist passengers with visual disabilities by using braille, large 
font, contrasting colors, and embossed symbols.
---------------------------------------------------------------------------

    \12\ CCD is a coalition of disability advocacy organizations 
including but not limited to the American Council of the Blind, the 
American Federation of the Blind, and the DREDF.
---------------------------------------------------------------------------

    Next, the Department proposed that lavatory controls and dispensers 
must be discernible through the sense of touch, and that operable parts 
of the lavatory must be operable with one hand and not require tight 
pinching, grasping, or twisting of the wrist. In the preamble to the 
proposed rule, we noted that such requirements would apply if those 
accessible operable parts are reasonably available and certificated for 
the applicable aircraft type. We sought comment on the availability of 
accessible controls and other lavatory parts that are operable by 
passengers with disabilities, along with the costs and benefits of 
requiring such accessible controls. The Ability Center of Greater 
Toledo indicated that if automatic faucets are not available, lever 
faucet handles should be used as opposed to knobs so that the faucet is 
operable with one hand and does not require tight pinching. A4A and 
IATA urged the Department to state in the regulatory text, rather than 
the preamble, that such requirements would apply if those accessible 
operable parts are reasonably available and certificated for the 
applicable aircraft type. They indicated that they did not want to be 
in the position of filing ``waivers'' to establish that such parts are 
not available.
    Next, the Department proposed to require the lavatory door sill to 
provide minimum obstruction for the passage of an OBW, consistent with 
applicable safety regulations. The Department recognized that door 
sills must prevent the spillage of water into the aircraft cabin. The 
provision was intended to promote accessibility without compromising 
safety. We sought comment on whether the term ``minimum obstruction'' 
should be further defined and if so, what that definition should be. 
The comments that we received on this issue supported the proposed rule 
as written.
    Next, recognizing that adequate toe clearance is necessary to 
permit the OBW to maneuver into and out of the lavatory, the Department 
proposed to require airlines not to reduce toe clearance below the 
current measurements of the lavatory. The Department sought comment on 
this proposed provision and on whether the term ``toe clearance'' 
should be specifically defined. Here, the Open Doors Organization 
remarked that toe clearance should be clearly identified, ``with 
minimum measurements determined by industry experts.'' Airlines 
supported the provision as written. Boeing suggested that the rule be 
amended to provide that ``toe clearance must not be reduced from 
current measurements applicable to the selected lavatory existing 
design.'' Airbus suggested that ``alternatively, toe clearance 
reduction can be compensated by design measures to achieve equivalent 
performance by wheelchair users.''
    Finally, the Department proposed that airlines must provide a 
visual barrier, on request, for passengers with disabilities who may 
require the use of the lavatory but who cannot do so with the door 
closed. The purpose of the visual barrier is to afford passengers with 
disabilities a level of privacy equivalent to that afforded to 
ambulatory users. We sought comment on the means by which this proposed 
visual barrier may be installed and operated in an efficient and cost-
effective manner, consistent with the privacy interests of passengers 
entering and using the lavatory. One disability advocate (Christopher 
Wood, of Flying Disabled) remarked that a curtain would be an 
inappropriate visual barrier, and that the barrier should be rigid and 
lockable. In contrast, Boeing urged the Department to clarify that an 
opaque curtain would be a barrier that provides ``substantially 
equivalent'' privacy. A4A and IATA commented that the Department should 
confirm or clarify that the barrier must provide ``substantially 
equivalent'' privacy only in the visual sense. They remarked that DOT 
should clarify that airlines have flexibility to choose the best 
barrier for their aircraft, and the barrier does not have to be 
permanent or physically attached to the aircraft. They also commented 
that the barrier requirement should only apply to aft-facing lavatories 
or the SpaceFlex models on Airbus A320 aircraft because barriers on mid 
or forward lavatories pose safety and security hazards. Spirit asked 
the Department to clarify that airlines should not be required to 
change aircraft interiors to accommodate a barrier. Spirit also stated 
that airlines should be deemed compliant if they use all reasonable 
efforts to put up an appropriate barrier but cannot.
    The Department proposed that lavatories on new aircraft with an 
FAA-certificated maximum capacity of 125 seats or more should have 
these accessible features. The Department expressed the view that 
because aircraft with fewer than 125 seats tend to be shorter-haul 
aircraft, with shorter flight times, it may not be cost-beneficial to 
require interior improvements to lavatories on those aircraft. The 
Department sought comment on this issue.
    PVA \13\ urged the Department to ``fully consider'' requiring 
improved lavatory interiors on smaller aircraft. Open Doors and the 
Ability Center of Greater Toledo commented that these requirements 
should apply to lavatories on aircraft with a capacity of 60 or more, 
because the improvements do not require expanding the footprint of the 
lavatory itself. Airlines supported the proposed rule as written, with 
IATA asking the

[[Page 50024]]

Department to clarify that the rule applies to newly manufactured 
aircraft, rather than existing aircraft that are newly acquired by the 
carrier.
---------------------------------------------------------------------------

    \13\ PVA's comment to the Part 1 NPRM was cosigned by Access 
Living of Metropolitan Chicago, American Association of People with 
Disabilities, Autistic Self Advocacy Network, Arc of the United 
States, Bazelon Center for Mental Health Law, Christopher and Dana 
Reeve Foundation, the DREDF, Epilepsy Foundation, MDA, NCIL, NDRN, 
National Multiple Sclerosis Society, and United Spinal.
---------------------------------------------------------------------------

DOT Response
    After carefully considering the comments, the Department has 
decided to adopt requirements for lavatory interiors mostly as 
proposed. With respect to grab bars, the rule text provides that they 
must be ``provided and positioned as required to meet the needs of 
individuals with disabilities.'' Complying with ADA grab bar standards 
would be an acceptable way to comply with this provision.
    With respect to the provision that ``attendant call buttons and 
door locks must be accessible to an individual seated in the 
lavatory,'' we agree with CCD's comment that these elements must be 
readily usable by passengers with visual disabilities. While the rule 
does not specifically prescribe how airlines must comply with this 
provision, we agree that features such as braille, large font, 
contrasting colors, and embossed symbols are all available means of 
compliance.
    With respect to the provision that ``lavatory controls and 
dispensers must be discernible through the sense of touch, and that 
operable parts of the lavatory must be operable with one hand and not 
require tight pinching, grasping, or twisting of the wrist,'' we agree 
with airlines' request that they should not be held responsible for 
obtaining lavatory controls and dispensers that meet those standards if 
those accessible operable parts are not reasonably available and 
certificated for the applicable aircraft type. The Department specifies 
in the rule text that an airline is not responsible for acquiring such 
lavatory controls and dispensers so long as an airline makes reasonable 
efforts to purchase such items and informs the Department of the 
unavailability despite the airline's reasonable efforts. In these 
situations, the Department requires airlines to purchase lavatory 
controls and dispensers that comply with as many requirements as set 
forth. For example, as the Ability Center of Greater Toledo noted, if 
automatic faucets are not available, lever faucet handles should be 
purchased as opposed to knobs so that the faucet is operable with one 
hand.
    We have adopted, as proposed, the requirement that toe clearance 
not be reduced below current measurements. We have determined that it 
is not necessary to require that toe clearance should be set with 
minimum measurements determined by industry experts, because a 
performance-standard approach still ensures that the OBW is able to 
maneuver into and out of the lavatory while providing flexibility to 
airlines in how this is done. The purpose of adequate toe clearance is 
to permit the passenger to access the lavatory by means of the OBW (for 
example, partial entry of the OBW in a forward-facing position to 
facilitate a stand-and-pivot maneuver).\14\ Airlines may or may not 
find it necessary to increase toe clearance within the interior of the 
lavatory to meet this OBW performance standard, depending on the design 
of their lavatories and OBWs. However, we prohibit airlines from 
reducing existing toe clearance to prevent reduction in accessibility.
---------------------------------------------------------------------------

    \14\ See Comment of ACCESS Advisory Committee member Katharine 
Hunter-Zaworski, Oregon State University, at 3 (``Toe clearance 
measurements are dependent on the design of the OBW. Prior design 
work has clearly shown that increasing the toe clearance under 
cabinets increases the overall accessibility of the lavatory by 
increasing maneuvering space. The height of the footrest on OBW is 
dependent on the design of the OBW. The fact that both the OBW and 
lavatory design affect toe clearance illustrates the need to 
consider the OBW and lavatory as a system when establishing 
regulatory requirements on either one.'')
---------------------------------------------------------------------------

    Next, we will adopt as written the proposed rule text relating to 
the visual barrier. The text states that ``the aircraft must include a 
visual barrier that must be provided upon request of a passenger with a 
disability. The barrier must provide passengers with disabilities using 
the lavatory (with the lavatory door open) a level of privacy 
substantially equivalent to that provided to ambulatory users.'' The 
barrier does not need to be permanent or physically attached to the 
aircraft to afford that level of privacy. The term ``visual barrier'' 
adequately indicates that the privacy is of a visual nature. In sum, we 
believe that the proposed rule text provides sufficient flexibility for 
airlines to provide the necessary privacy without compromising safety. 
We do, however, clarify in rule text that visual barriers are only 
appropriate as a short-term accessibility improvement. They will not be 
an appropriate means of providing privacy for the larger lavatories 
that will be required in the longer term.
    Finally, we remain of the view that changes to lavatory interiors 
should be provided on new single-aisle aircraft with an FAA-
certificated maximum seating capacity of 125 or more, because such 
aircraft tend to operate longer flights where the need for a lavatory 
access is greatest. As the Regulatory Impact Analysis explains, single-
aisle aircraft with at least 125 seats are used for most domestic 
flights in the United States (67% in 2021) and are increasingly used 
for longer flights due to improvements in fuel efficiency and range. In 
response to IATA's comment, we believe that the rule text already 
adequately conveys that the rule applies to newly manufactured aircraft 
delivered three years after the effective date of the final rule, 
rather than existing aircraft that are newly acquired by an airline.
2. Retrofitting
NPRM and Comments
    The Department proposed that retrofitting of lavatories on aircraft 
currently in service would not be required; however, if an airline 
replaces a lavatory three years or more after the effective date of the 
rule, airlines would be required to install a lavatory that meets the 
new requirements. Under this proposal, ``a lavatory is not considered 
replaced if it is removed for specified maintenance, safety checks, or 
any other action that results in returning the same lavatory into 
service.'' For retrofitted lavatories, there would be no requirement to 
install a visual barrier if doing so would obstruct the visibility of 
exit signs.
    A4A and IATA suggested that DOT clarify in the preamble to the 
final rule that to trigger the new compliant lavatory, airlines must 
totally replace the lavatory shell, not only replace limited 
components. Boeing suggested that the Department clarify that 
retrofitting would not be required for ``any other action that results 
in returning the same lavatory part number or lavatory with the same 
design intent into service.'' Boeing reasoned that ``there may be 
instances where, during a heavy maintenance check, a lavatory is 
removed and must be replaced with a new lavatory of the same part 
number or design intent.''
DOT Response
    We have decided to adopt the final rule as proposed. The text 
provides that ``a lavatory is not considered replaced if it is removed 
for specified maintenance, safety checks, or any other action that 
results in returning the same lavatory into service.'' In our view, the 
regulatory text adequately explains what constitutes a replacement 
lavatory that triggers installation of a compliant lavatory.\15\ We 
reject Boeing's

[[Page 50025]]

suggestion that retrofitting is not required if the airline wishes to 
replace an existing lavatory with a new lavatory of the same part 
number or design intent. To the contrary, the Department is of the view 
that this is the type of replacement where the airline would be 
required to install a compliant lavatory.
---------------------------------------------------------------------------

    \15\ We also note that this retrofitting provision, which 
requires retrofitting on a lavatory-by-lavatory basis rather than a 
component-by-component basis, is consistent with prior law. See now-
repealed section 382.63(c) (``You are not required to retrofit cabin 
interiors of existing aircraft to comply with the requirements of 
this section. However, if you replace a lavatory on an aircraft with 
more than one aisle, you must replace it with an accessible 
lavatory.'')
---------------------------------------------------------------------------

3. Training
NPRM and Comments
    The Department proposed training and information requirements that 
would apply to airlines operating aircraft with an FAA-certificated 
maximum capacity of greater than 60 seats (i.e., airlines that do not 
qualify as small businesses under 14 CFR 399.73). The training and 
information requirements would apply to the airlines' operations 
generally, not to the operation of any specific aircraft. These 
provisions would apply three years after the effective date of the 
final rule.
    Specifically, the Department proposed to require airlines to train 
flight attendants to proficiency on proper procedures for assisting 
qualified individuals with disabilities to and from the lavatory from 
the aircraft seat.\16\ Such training would include annual hands-on 
training on the retrieval, assembly, stowage, and use of the aircraft's 
OBW, and training regarding the accessibility features of the lavatory. 
The Department sought comment on whether annual training is necessary, 
or whether a different frequency of training would be more appropriate.
---------------------------------------------------------------------------

    \16\ Airlines are already required to train their personnel to 
proficiency on the airline's procedures concerning the provision of 
air travel to passengers with a disability, including the proper and 
safe operation of any equipment used to accommodate passengers with 
a disability. 14 CFR 382.141(a)(1)(ii).
---------------------------------------------------------------------------

    Stakeholders generally supported this proposal. PVA contended that 
the rule should include training on ``any assembly or modifications to 
accessibility features'' of accessible lavatories.\17\ PVA reasoned 
that certain lavatories, such as the SpaceFlex lavatory installed on 
certain Airbus aircraft, require flight attendants to remove a 
partition to create a larger lavatory space. A4A supported the rule as 
written without the phrase suggested by PVA. A4A also stated that DOT 
should consider hands-on training on a phased-in schedule, combined 
with online/video training. A4A recommended that DOT clarify exactly 
what constitutes hands-on training of interior lavatory features. A4A 
also argued that it is not feasible to provide hands-on training for 
retrieval and stowage of OBWs on every aircraft type, so the training 
should only address following instructions on how to stow and retrieve 
any type of OBW. Finally, A4A asserted its belief that DOT has not 
conducted a complete analysis of the costs of hands-on training, but 
A4A did not supply any such data to assist the Department's analysis. 
IATA indicated that DOT should clarify specifically whether contractor 
employees are included, or instead clarify that the rule only applies 
to flight attendants. IATA expressed the view that annual hands-on 
training is onerous, and that DOT did not adequately consider the costs 
of training and constructing lavatory mockups. Spirit expressed safety 
concerns to the extent that the rule requires flight attendants to lift 
passengers out of their seats, because many contracts limit flight 
attendants from lifting more than 50 pounds. Responses to these 
comments pertaining to the economic analysis can be found in the RIA.
---------------------------------------------------------------------------

    \17\ This phrase was included in the original Term Sheet 
reflecting the stakeholders' agreement. In the Part 1 NPRM, DOT 
declined to include this phrase.
---------------------------------------------------------------------------

    At the OBW public meeting held in December 2021, stakeholders 
discussed whether to clarify that the training requirements should 
include the ``transfer features'' of the OBW. In supplemental comments, 
A4A and IATA indicated that they supported this amendment. RAA, 
representing regional airlines, asked the Department to clarify that 
staff must only be trained with respect to each airline's operational 
environment.
DOT Response
    After review of the comments, we are adopting training requirements 
largely as proposed. In our view, annual hands-on training is necessary 
and appropriate with respect to any OBW that the flight attendant may 
be required to retrieve, use, and stow. We are also persuaded by PVA's 
comment to specifically include training on ``any assembly or 
modifications to accessibility features'' of a lavatory. Such an 
addition would make it clear that airlines are required to provide 
hands-on training with respect to elements such as the movable 
partition of a SpaceFlex lavatory, because such a partition would be an 
``accessibility feature'' of the lavatory. Also, the training 
requirements apply only to flight attendants rather than off-aircraft 
contractors because flight attendants would be the staff that assist 
passengers in flight to access the lavatory.
    We agree with the stakeholders' suggestion to clarify that training 
must include the ``transfer features'' of the OBW. In response to 
Spirit's comment, we note that while the rule would require flight 
attendants to assist passengers in transferring to and from the OBW, 
and maneuvering the OBW to and from the lavatory, it does not 
necessarily require staff to lift passengers. In other words, flight 
attendants are required to assist the person with a disability to 
transfer to the aisle chair as best as they can but may not be able to 
physically lift or carry the person even with the use of a sliding 
board. We have not amended the rule text to clarify that staff must 
only be trained with respect to each airline's operational environment, 
because we believe that the rule is already sufficiently clear on that 
point.
4. Information
NPRM and Comments
    The Department proposed to require airlines to provide information, 
on request, to qualified individuals with a disability or persons 
making inquiries on their behalf concerning the accessibility of 
aircraft lavatories. We proposed that this information must also be 
available on the carrier's website, and in printed or electronic form 
on the aircraft, including picture diagrams of accessibility features 
in the lavatory and the location and usage of all controls and 
dispensers. We stated that the intent of this proposal is to provide 
passengers with accurate information about the types of accessibility 
features that will be available on the aircraft, so that passengers may 
plan their flights appropriately.
    PVA urged the Department to require that this information be 
``affirmatively sent'' to anyone who self-identifies as using a 
mobility device or a service animal. In response to the Part 2 NPRM, 
NDRN noted that many airlines with relatively accessible lavatories in 
their fleet (such as the Airbus SpaceFlex) do not make clear to 
passengers whether their specific flight actually includes such a 
lavatory. RAA, representing regional carriers, urged the Department to 
reconsider the website requirement. RAA explained that the vast 
majority of its airline members are operating carriers that do not 
market flights or sell tickets. RAA explained that its members operate 
flights through agreements with larger mainline partners (marketing 
carriers) who are responsible for providing flight information to the 
public. RAA contended that because the traveling public rarely visits 
RAA members' websites, the more appropriate rule would be to apply the

[[Page 50026]]

information requirements to marketing carriers.
DOT Response
    On further review of this provision, and after reviewing the 
comments, we believe it is appropriate to clarify the Department's 
intent with respect to information on accessibility of aircraft 
lavatories. First, rather than broadly requiring airlines to provide 
information regarding ``the accessibility of aircraft lavatories,'' the 
final rule specifies that the information must include, at a minimum, 
information about the accessibility features of aircraft lavatories 
that are set forth in Sec.  382.63(f) (relating to lavatory interiors). 
This change is consistent with the proposed requirement that the 
information must include picture diagrams of accessibility features in 
the lavatory and the location and usage of all controls and dispensers.
    We also note that, consistent with the current requirements of part 
382, this information must be flight-specific to the extent possible. 
Specifically, a different provision of part 382 states that carriers 
must provide, on request, certain information ``concerning the 
accessibility of the aircraft expected to make a particular flight,'' 
including ``whether the aircraft has an accessible lavatory.'' \18\ 
Under current rules, that information ``must be specific to the 
aircraft you [airlines] expect to use for the flight unless it is 
unfeasible for you to do so (e.g., because unpredictable circumstances 
such as weather or a mechanical problem require substitution of another 
aircraft that could affect the location or availability of an 
accommodation).'' In keeping with current rules, this final rule 
requires airlines to provide the required information regarding the 
accessibility of lavatory features on a flight-specific basis.\19\
---------------------------------------------------------------------------

    \18\ 14 CFR 382.41(e). We have amended Sec.  382.41(e) to add a 
cross-reference to the provisions of this final rule.
    \19\ While the rule, as written, does not require airlines to 
provide information regarding the aircraft's OBW, we encourage 
airlines to do so.
---------------------------------------------------------------------------

    We do find persuasive RAA's comment that the website requirement 
should not apply to operating carriers that do not market flights or 
sell tickets. In situations where the operating and marketing carrier 
are different entities, the operating carrier is the airline that flies 
the aircraft while the marketing carrier is the airline that sells the 
ticket and generally provides flight-specific information to the 
public. Under this rule, marketing carriers will have the 
responsibility to provide information on their website concerning the 
accessibility of aircraft lavatories. We have amended the final rule 
accordingly.
5. International Symbol of Accessibility
NPRM and Comments
    The Department proposed to require airlines to remove the 
International Symbol of Accessibility from new and in-service aircraft 
that are equipped with lavatories that are not capable of facilitating 
a seated independent transfer (i.e., a transfer from an OBW to the 
toilet seat without requiring the use of an assistant). In the Part 1 
NPRM, we noted that removal of the symbol is the only proposed 
requirement that would apply to existing in-service lavatories, and to 
lavatories on aircraft with FAA-certificated maximum capacity of fewer 
than 125 seats. We noted that the goal is to provide greater 
consistency regarding the use of the symbol.
    Stakeholders generally supported this provision. Airlines, while in 
favor of the rule, commented that DOT had not adequately considered the 
cost of such removal (without providing data to assist in the 
Department's analysis).
DOT Response
    We adopt the proposal as written. In addition, we are requiring 
airlines to include the International Symbol of Accessibility if the 
lavatory is capable of facilitating a seated independent transfer. As 
noted above, the Department's intent is to provide greater consistency 
as to the meaning of the symbol as it applies to lavatories on single-
aisle aircraft. Accordingly, it is appropriate to specify when the 
symbol must be applied, as well as when it must be removed. We note 
that at present, the additional cost of this provision will be 
relatively low, as few lavatories on single-aisle aircraft are capable 
of facilitating a seated independent transfer. As fully accessible 
lavatories become more commonplace, we expect the proper use and 
application of the symbol to grow.
6. Procedures for Sharps and Bio-Waste
NPRM and Comments
    The Department proposed to require airlines to develop and, on 
request, inform passengers about their procedures for disposing of 
sharps and bio-waste. The Department reasoned that as lavatories on 
single aisle aircraft become more accessible, they may be used 
increasingly as a location where passengers with disabilities may 
perform personal functions which require the disposal of sharps and 
bio-waste. Like the information and training requirements, the proposed 
rule would apply to airlines that operate aircraft with a maximum FAA-
certificated capacity of more than 60 seats.
    All responses to this proposal were in support. A4A and IATA asked 
the Department to clarify that airlines are not required to provide 
special facilities or equipment for disposal.
DOT Response
    We adopt the proposal as written. The intent of the rule is to 
require airlines to develop procedures for sharps and bio-waste 
disposal and to inform passengers of those procedures on request. The 
rule does not require any specific type of disposal procedures; 
similarly, the rule does not require airlines to provide special 
facilities or equipment for disposal.
7a. OBW Features
NPRM and Comments
    As a first step in developing proposed OBW standards for the Part 1 
NPRM, the Department asked the Access Board to develop advisory 
guidelines for technical assistance. The Department then adapted the 
Access Board's design standards into more flexible performance 
standards. The Department proposed that airlines could use the Access 
Board's design standards as one method of compliance. In the Part 1 
NPRM, the Department proposed that the OBW have the following features:
    (1) it must be maneuverable both forward and backward through the 
aircraft aisle by an attendant;
    (2) it must be maneuverable in a forward orientation partially into 
at least one aircraft lavatory to permit transfer from the on-board 
wheelchair to the toilet; \20\
---------------------------------------------------------------------------

    \20\ The goal of this requirement is to accommodate passengers 
who can enter the lavatory using a ``stand-and pivot'' maneuver. 
Specifically, the passenger would approach and partially enter the 
lavatory while seated on the OBW, then stand and pivot 180 degrees 
to the toilet, at which point the OBW would be removed and the door 
would be closed.
---------------------------------------------------------------------------

    (3) it must be maneuverable into the aircraft lavatory in a 
backward orientation to permit positioning over the toilet lid without 
protruding into the clear space needed to completely close the lavatory 
door (an over-the-toilet, or ``OTT'' feature);
    (4) the height of the OBW seat must align with the height of the 
aircraft seat so as to facilitate a safe transfer between the OBW seat 
and the aircraft seat;
    (5) it must have wheels that lock in the direction of travel, and 
that lock in place so as to permit safe transfers, with any other 
moving parts being capable of being secured such that they do not move 
while the occupied OBW is being maneuvered;

[[Page 50027]]

    (6) when occupied for use, it shall not tip or fall in any 
direction under normal operating conditions;
    (7) it must have a padded seat and backrest, and must be free of 
sharp or abrasive components;
    (8) it must have arm supports that are sufficiently structurally 
sound to permit transfers and repositionable so as to allow for 
unobstructed transfers; adequate back support; torso and leg restraints 
that are adequate to prevent injury during transport; and a unitary 
foot support that provides sufficient clearance to traverse the 
threshold of the lavatory and is repositionable so as to allow for 
unobstructed transfer, with all restraints operable by the passenger; 
and
    (9) it must prominently display instructions for proper use.
    As noted above, the Department then held a public meeting to 
solicit additional comment and data regarding OBW standards. At the 
meeting, a representative of PVA expressed support for the OBW 
provisions set forth in the Part 1 NPRM but indicated that they should 
be expressed as design standards rather than performance standards.
    A4A and IATA expressed support for many of the Department's OBW 
proposals. However, they expressed significant design, cost, and safety 
concerns regarding the Department's proposal that the OBW be 
maneuverable into the lavatory in a backwards position such that it 
would be positioned over the closed toilet seat (the OTT feature). A 
representative of the Volpe Center, which performed the regulatory 
analysis on the Part 1 NPRM, asked questions of the meeting attendees 
about the feasibility and cost of manufacturing OBWs with an OTT 
feature. This individual noted that the OTT feature could be 
implemented either by (1) manufacturing different OBWs to accommodate 
different toilet seat heights, or (2) by manufacturing a single 
adjustable OBW that accommodates multiple toilet seat heights. This 
commenter noted that neither product exists on the market today, and 
that the cost and feasibility of producing either design is largely 
unknown. An engineer from the University of Hamburg, which developed 
the original prototype of the OTT design, indicated that an OBW with a 
height fixed to the toilet lid may be problematic in terms of transfers 
to and from the aircraft seat, while adjustable-height OBWs pose 
different design challenges.
    In supplemental comments following the OBW meeting, PVA again 
expressed support for the proposed design features, but urged the 
Department to adopt design standards. A4A and IATA expressed strong 
support for all of the proposed OBW design features, except for element 
(3) (the OTT feature). They urged the Department to withdraw this 
proposal based on safety and feasibility concerns. Specifically, they 
argued that the Department lacked data from which to conclude that such 
a feature can be manufactured at all, let alone that it would meet FAA 
safety standards. They expressed concerns that the design may add 
weight, complexity, and safety hazards to the OBW, particularly if the 
OTT design is adjustable to fit over toilet lids of various sizes. They 
also noted that the Department has limited data from which to estimate 
the costs of designing and manufacturing such a device. Airlines urged 
the Department to continue to consult with stakeholders regarding the 
OTT feature, but not to impose the requirement in a final rule.
    Airbus commented that it generally supported the Department's 
performance standards. However, Airbus expressed concern that a fully 
compliant OBW may be too large to be transported down the aircraft 
aisle or into the lavatory, or stowed in existing spaces. Airbus also 
noted that the OTT feature would not be necessary on its accessible 
Airbus A220 lavatories, because that lavatory was designed to 
facilitate an independent transfer using the aircraft's existing OBW.
    The Department proposed that these new OBW features should be 
required on new single-aisle aircraft with a maximum FAA-certificated 
capacity of 125 seats or more. In this way, the OBW provisions mirror 
the provisions relating to the accessible features of lavatory 
interiors. Again, the Department reasoned that larger aircraft tend to 
conduct longer flights where the need to access the lavatory may be 
greatest.
    PVA urged the Department to ``seriously consider'' expanding these 
OBW standards to smaller aircraft. The Ability Center of Greater Toledo 
agreed, noting that individuals may have the need to access lavatories 
on shorter flights as well. A4A urged the Department not to expand OBW 
standards to smaller aircraft unless the Department engaged in a full 
consultation process to determine feasibility, safety, and costs. A4A 
noted that smaller aircraft have smaller aisles, smaller lavatory 
entrances, smaller stowage spaces, and fewer crew resources.
DOT Response
    After review of the Part 1 NPRM comments, the information gathered 
at the OBW public meeting, and the post-meeting supplemental comments, 
we have decided to finalize these OBW provisions largely as proposed, 
with one important amendment. We remain of the view that performance 
standards provide meaningful guideposts for safety and accessibility 
while providing stakeholders flexibility and the opportunity to 
innovate in how to meet those standards. We also remain of the view 
that these new OBW standards should apply to new aircraft with a 
maximum capacity of 125 seats or more, because those aircraft tend to 
fly longer routes where the need for lavatory use in flight is 
greatest.
    However, we have reconsidered the proposal to require that the OBW 
must be maneuverable into the aircraft lavatory in a backward 
orientation to permit positioning over the toilet lid without 
protruding into the clear space needed to completely close the lavatory 
door (the OTT requirement above). The purpose of the proposed OTT 
requirement was to assist passengers with significant mobility 
impairments who cannot use the ``stand-and-pivot'' maneuver to enter 
the lavatory. The OTT requirement was intended to allow such passengers 
full access to the lavatory space while still seated on the OBW to 
permit non-toileting functions such as catheterization.
    We recognize that members of the ACCESS Advisory Committee saw and 
used a simple prototype OBW with an OTT feature developed by the 
University of Hamburg. On the other hand, since the development of that 
prototype in 2016, we have seen no evidence that it is feasible to 
manufacture a fully compliant OBW with an OTT feature. The costs of 
developing such a device remain unknown. We also share stakeholders' 
concerns about the complexity and safety of such a device, particularly 
if it is adjustable to accommodate various aircraft seat heights and 
toilet seat heights. Accordingly, we have eliminated this requirement.
    We remain concerned, however, about lavatory accessibility for 
passengers who are unable to use the stand-and-pivot maneuver. We also 
recognize that an OTT design may not be the only method for 
accommodating such passengers. For example, certain Airbus SpaceFlex 
lavatories are large enough to accommodate an OBW inside the lavatory 
space without the use of an OTT design. Accordingly, rather than 
specifically mandating an OTT design, we have adjusted this requirement 
to broadly state that the OBW must be maneuverable into the aircraft 
lavatory without protruding into the clear space needed to completely 
close the lavatory door. If the lavatory itself is not large

[[Page 50028]]

enough to accommodate an OBW without an OTT feature, and an OBW with an 
OTT feature is not available, airlines must provide the use of a visual 
barrier on request to enable the passenger to perform lavatory 
functions in privacy (see section 7c, below). A visual barrier would 
not be an acceptable means of compliance for lavatories that are 
required to be expanded beyond current measurements. As for comments to 
expand the OBW standards to smaller aircraft, the Department plans to 
address this issue as part of its rulemaking on Ensuring Safe 
Accommodations for Air Travelers with Disabilities Using 
Wheelchairs.\21\
---------------------------------------------------------------------------

    \21\ RIN 2105-AF14; https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202210&RIN=2105-AF14.
---------------------------------------------------------------------------

7b. OBW Stowage
NPRM, Public Meeting, and Comment
    The Department proposed that airlines are not required to expand 
the existing FAA-certificated on-board wheelchair stowage space of the 
aircraft, or to modify the interior arrangement of the lavatory or the 
aircraft, in order to comply with the OBW provisions of the rule. 
During the OBW public meeting, Airbus and Boeing provided information 
regarding available stowage spaces.
    In supplemental comments to the OBW public meeting, PVA commented 
that because OBWs serve a critical function with respect to lavatory 
accessibility, the final rule ``should require an air carrier to use 
any FAA-approved OBW stowage location, not just its preferred or 
existing stowage location.'' Airlines supported DOT's proposal as 
written. Spirit contended that if a compliant OBW does not fit in the 
existing space, then airlines should not be required to provide such an 
OBW. Spirit also argued that airlines should not be required to stow 
the OBW in an alternate location such as an overhead bin, this would 
limit bin space and raise prices for consumers. They also expressed 
safety concerns for flight attendants if the new OBW weighs more than 
50 pounds.
    The Transport Workers Union of America, AFL-CIO, expressed concerns 
regarding the safe operation of OBWs while in flight, noting that it 
would be unsafe to operate them unless the aircraft is at a safe 
cruising altitude. They asked DOT to provide guidance to the public 
about when OBWs can be used.
DOT Response
    We remain of the view that airlines should not be required to 
expand the existing FAA-certificated on-board wheelchair stowage space 
of the aircraft, or to modify the interior arrangement of the lavatory 
or the aircraft, in order to comply with the OBW provisions of the 
rule. These provisions are consistent with the overarching premise that 
short-term solutions should not require modification of aircraft 
interiors. On the other hand, we agree with PVA that we should amend 
the final rule relating to stowage.
    We recognize the possibility that newly compliant OBWs may not fit 
within pre-existing OBW stowage spaces. The rule as proposed could be 
reasonably interpreted to read that if the new OBW does not fit within 
pre-existing OBW stowage spaces, then airlines would not be required to 
supply them at all. We agree with PVA that this is unacceptable. 
Compliant OBWs will include important new safety and accessibility 
features. Accordingly, the Department is requiring airlines to stow the 
OBW in any other available stowage space where it can be safely 
accommodated (e.g., a stowage closet or an overhead bin). Airlines are 
also required to seek any necessary approval from the FAA to stow the 
OBW in this alternate location. We also note that all ACAA requirements 
are subject to safety restrictions, including the use of the OBW. We 
have added rule text clarifying this point. Airline training should 
also make it clear to relevant staff that OBW stowage spaces does not 
affect the options for individuals with disabilities to stow personal 
wheelchairs on board.
7c. Potential Unavailability of Fully Compliant OBWs
NPRM, Public Meeting, and Comment
    In the Part 1 NPRM, the Department recognized that airlines 
typically rely on third parties to develop and manufacture OBWs, and 
that an OBW meeting all of the Department's proposed requirements does 
not currently exist. Accordingly, the Department proposed that airlines 
would not be responsible for the failure of third parties to develop 
and deliver an OBW that complies with a required feature described 
above, so long as the airline notifies and demonstrates to the 
Department that an OBW meeting that requirement is unavailable despite 
the airline's reasonable efforts.
    PVA generally agreed with this proposal but argued that there 
should be a ``higher standard of proof.'' A4A strongly supported this 
provision, noting that extensive design and testing is necessary to 
determine whether an OBW meeting DOT's new standards can be made 
commercially available and safely stowable on-board the aircraft.
DOT Response
    After review of the comments and on further consideration, the 
Department has decided to amend the final rule in certain material 
respects. First, the final rule clarifies that airlines must acquire an 
OBW with as many required features as are available, even if no OBW is 
available that meets all of the required standards. Next, the final 
rule relieves airlines of the burden of proving a negative: i.e., 
demonstrating that an OBW with a required feature is unavailable 
despite the airline's reasonable efforts. The final rule still requires 
airlines to make reasonable efforts to purchase OBWs with all required 
features. If an OBW with a required feature is unavailable despite 
reasonable efforts, airlines must inform the Department of that 
fact.Finally, the Department recognizes that many OBWs may not be 
maneuverable in the aircraft lavatory as required without protruding 
into the clear space needed to completely close the lavatory door 
(e.g., because the OBW is not of an OTT design and/or because the 
lavatory itself is too small to allow full entry of the OBW). The final 
rule specifies that if airlines cannot provide an OBW meeting that 
requirement, then they must provide the use of a visual barrier on 
request to enable the passenger to perform lavatory functions in 
private. The intent of this rule is to provide an option for passengers 
who cannot enter the lavatory by performing a stand-and-pivot from the 
OBW. The Department anticipates that while such passengers may not be 
able to fully enter the lavatory, they may be able to perform non-
toileting functions such as catheterization in the lavatory area behind 
a visual barrier.
7d. Replacement of OBWs
NPRM, Public Meeting, and Comment
    The Department proposed that if an airline replaced an OBW on 
aircraft with an FAA-certificated maximum seating capacity of 125 or 
more on a date later than three years after the effective date of the 
final rule, then the airline must replace it with an on-board 
wheelchair that meets the new OBW standards. This proposal mirrors the 
requirement (described above) relating to retrofitting and replacement 
of aircraft lavatories themselves. A4A commented that airlines should 
be permitted to replace a broken or worn-

[[Page 50029]]

out OBW with a new OBW of the same part number, and that the new 
standards should be required only if airlines adopt a new OBW design. 
Airbus commented that relocating the OBW stowage space should not count 
as replacing the OBW.
DOT Response
    We are adopting the proposed rule as written. As written, airlines 
are provided a three-year time frame to acquire compliant OBWs. If an 
airline replaces an OBW after that date, it is reasonable to require 
airlines to provide a new OBW that meets DOT's updated safety and 
accessibility standards, because such OBWs will presumably be available 
and on the market by that time. This rule is also consistent with the 
general rule, found at 14 CFR 382.71(b), which states that airlines 
must ensure that any replacement or refurbishing of the aircraft cabin 
or its elements does not reduce the accessibility of that element to a 
level below that specified for new aircraft in part 382.
8. Prohibition on Reducing Existing Lavatory Footprint
NPRM and Comments
    In the Part 1 NPRM, the Department solicited comment on whether to 
prohibit airlines from reducing lavatory footprints below their current 
size. The Department sought comment and data on the extent to which the 
footprint of aircraft lavatories on single-aisle aircraft has been 
reduced in recent years, and the effect that any such reduction has on 
accessibility for passengers with disabilities.
    Three disability advocacy organizations (PVA, the National Multiple 
Sclerosis Society and Flying Disabled) urged the Department to prohibit 
further reduction of lavatory footprints. PVA argued that such a 
provision would be consistent with the spirit of part 382.\22\ A4A and 
IATA urged the Department not to adopt such a proposal. A4A contended 
that the Department does not have baseline data on current lavatory 
footprints, and without that data, it cannot calculate the cost of the 
proposal (which may be significant). IATA argued that if the lavatory 
met performance standards, airlines should be permitted to select a 
footprint that is best suited to their operations. Boeing supported the 
Department's suggestion, reasoning that maintaining one lavatory on 
single aisle aircraft at current size would not further limit 
accessibility to the traveling public as a whole. Like A4A, Boeing 
noted that clarity on starting lavatory measurements would be necessary 
as there are a variety of different designs in the industry.
---------------------------------------------------------------------------

    \22\ Specifically, PVA cited 14 CFR 382.71, which states, ``You 
must ensure that any replacement or refurbishing of the aircraft 
cabin or its elements does not reduce the accessibility of that 
element to a level below that specified for new aircraft in this 
part.''
---------------------------------------------------------------------------

DOT Response
    After reviewing the comments on this issue, we do not have 
sufficient data to prohibit airlines from further reducing the 
footprint of lavatories at this time, though this remains an area of 
interest given that the small size of current lavatories is one 
significant reason that they are largely inaccessible today. DOT may 
revisit this issue in a future rulemaking.
9. Effective Date
    Airlines are required to comply with all of the short-term 
accessibility improvements discussed above three years after the 
effective date of this final rule. This time frame will allow airlines, 
aircraft manufacturers, OBW manufacturers, and other stakeholders 
sufficient time to develop accessible lavatory interiors, training 
programs, accessibility information, compliant OBWs, and appropriate 
OBW stowage space.

II. Long-Term Improvements

A. Overview

    The Department addressed long-term improvements in the Part 2 NPRM. 
The Department proposed to require that airlines expand the size of at 
least one lavatory on new single-aisle aircraft with an FAA-
certificated maximum capacity of 125 seats or more. The most 
significant issue in the NPRM was the time frame for implementation. 
The Department proposed that the rule would apply to new single-aisle 
aircraft ordered 18 years after the effective date of the final rule, 
or delivered 20 years after the effective date of the final rule (18/
20).\23\ The Department proposed this time frame because it tracked the 
ACCESS Advisory Committee's agreement from 2016.\24\ At the same time, 
the Department recognized the slow pace of this proposed implementation 
period, particularly in light of the roughly six-year delay between the 
date of the Committee's agreement (in 2016) and the issuance of the 
Part 2 NPRM (in 2022). The Department sought comment and data on 
whether and how to accelerate this implementation period for the final 
rule.
---------------------------------------------------------------------------

    \23\ In this document, two numbers separated by a slash refers 
to a single implementation period. For example, ``15/17'' would mean 
that the rule applies to new single-aisle aircraft ordered 15 years 
after the effective date of the final rule and delivered 17 years 
after the effective date of the final rule.
    \24\ As noted above, during the ACCESS Advisory Committee 
process, the Department publicly committed that if the Committee 
reached consensus, the Department would propose a rule tracking that 
agreement to the extent possible.
---------------------------------------------------------------------------

    The comment period closed on May 28, 2022. Broadly speaking, 
disability rights organizations supported the rule but also urged a 
faster implementation period. For example, PVA argued that the 
Department should subtract the six-year delay in issuance of the 
rulemaking, and therefore that the requirement for larger lavatories 
should apply to aircraft ordered 12 years after the effective date of 
the final rule or delivered 14 years after the effective date of the 
final rule (12/14). The MDA urged the Department to adopt a 10-year 
maximum implementation. United Spinal did not propose a specific time 
frame but urged the Department to act ``with all deliberate speed.'' 
Individual commenters universally supported the rule but urged the 
Department for a faster implementation period. Certain advocates also 
urged the Department to apply the rule to smaller aircraft.
    Airlines supported the proposal as written. A4A/IATA argued that if 
the Department reduced the implementation period, (1) it should be to 
15/17, (2) DOT must fully explain the basis, data, and information that 
justifies its deviation from the original proposal, and (3) DOT must 
allow stakeholders to submit supplemental comment. Airbus and Boeing 
supplied technical comments, with Boeing also supporting the 
implementation time frame as written. DOT's responses to these and 
other significant issues raised by the commenters are provided below.

B. Section-by-Section Analysis

1. Applicability: Aircraft Size
NPRM and Comments
    The Department proposed that larger lavatories would be required on 
new single-aisle aircraft with an FAA-certificated maximum capacity of 
125 seats or more. The Department reasoned that such aircraft operate a 
significant percentage of longer-haul flights, where the in-flight need 
for a lavatory would be greatest. The Department sought comment on the 
costs and benefits of extending the rule to smaller aircraft. The 
Department noted that the Committee considered, but rejected, a rule 
that would require accessible lavatories based on the length of the 
flight as opposed to the size of the aircraft. The Committee also 
rejected other approaches such as phased or tiered approaches to full 
accessibility.

[[Page 50030]]

Nevertheless, the Department sought comment on these issues as well.
    Two organizations (Open Doors and Disability Rights PA) urged the 
Department to apply the rule to all new aircraft. Airlines supported 
the proposal as written, contending that this standard captures the 
near-total volume of U.S. passenger traffic. A4A and IATA further 
stated that aircraft with fewer than 125 seats are only used on short 
flights, that requiring accessible lavatories on smaller aircraft would 
impose substantial costs that may increase fares and potentially 
disrupt service to smaller communities, and that there is no technical 
solution for accessible lavatories on these smaller aircraft.\25\ 
Spirit Airlines also supported the rule as written, and further argued 
that it should apply on a fleet-wide basis instead of a route-by-route 
basis. Similarly, RAA supported the 125-seat standard and preferred the 
seating-capacity approach instead of a scheduled-duration approach.\26\ 
Boeing commented that the proposed standard is reasonable, noting that 
smaller aircraft are operated on shorter routes, there is no current 
technical solution for smaller aircraft, and lowering the threshold 
would increase compliance costs. Airbus did not comment.
---------------------------------------------------------------------------

    \25\ Comment of A4A/IATA at 16-17.
    \26\ Comment of RAA at 2-3.
---------------------------------------------------------------------------

DOT Response
    The Department is finalizing this aspect of the proposal as 
written. We recognize that determining a reasonable threshold for 
larger accessible lavatories will always involve a measure of judgment. 
On balance, the Department continues to hold the view that a 125-seat 
threshold is reasonable because it covers a substantial portion of 
lengthy flights. As we explain in the RIA, we chose not to extend the 
rule to aircraft with 100 to 124 seats because aircraft of this size 
are increasingly rare, leading to uncertainty about the benefits of 
extending the rule to such aircraft. In contrast, flights on aircraft 
of 125 seats or more made up 58% of all flights and 90% of medium- and 
long-haul flights in 2021. We do recognize that in general, as future 
aircraft become more efficient, smaller aircraft may increasingly 
operate longer flights; if so, the Department may revisit this issue in 
the future. Finally, after reviewing the comments, we find essentially 
no support for alternative standards of applicability such as scheduled 
flight length, or for tiered/phased approaches to implementing fully 
accessible lavatories.\27\
---------------------------------------------------------------------------

    \27\ A4A and IATA stated that public comment is essential to any 
further adjustments to the implementation and further suggests that 
it would lead to a lack of consistency for no clear benefit. They 
specifically oppose different phases of assisted vs. unassisted 
transfer, a view shared by Boeing, who added that such an idea was 
specifically rejected in the negotiated rulemaking. Passenger-
advocacy organizations also opposed additional phases or tiers, 
largely because they find them unnecessary. NDRN commented that the 
current rulemaking supports attendant-accommodating lavatories 
without further phases or tiers. United Spinal Association and PVA 
shared similar views that there should not be further tiering or 
phasing, but if such is implemented, it should not increase the 
implementation timeframe.
---------------------------------------------------------------------------

2. Lavatory Size: Accommodation of Passenger and Attendant
NPRM and Comments
    The Department proposed that for applicable aircraft, airlines must 
include at least one lavatory of sufficient size to (1) permit a 
qualified individual with a disability equivalent in size to a 95th 
percentile male to approach, enter, maneuver within as necessary to use 
all lavatory facilities, and leave, by means of the aircraft's on-board 
wheelchair, in a closed space that affords privacy equivalent to that 
afforded to ambulatory users; and (2) permit an assistant equivalent in 
size to a 95th percentile male to assist a qualified individual with a 
disability, including assisting in transfers between the toilet and the 
aircraft's on-board wheelchair, within a closed space that affords 
privacy equivalent to that afforded to ambulatory users.
    NDRN commented that the 95th percentile standard was preferable to 
the non-specific standard set forth in the rule for twin-aisle aircraft 
lavatories, which are inconsistent in terms of accessibility. A4A and 
IATA supported the proposal, noting that it tracked the Committee's 
agreement. Airbus supported the proposal, noting that the 95th 
percentile overweight/tall U.S. male is an appropriate reference 
measure for an assisted transfer within the limited space of a 
lavatory.\28\ Boeing argued that the 95th percentile standard should be 
placed in guidance, rather than regulatory text, noting that DOT took 
this approach with respect to the size of twin-aisle aircraft. Boeing 
also urged the Department to add that airlines may use curtains to 
create the closed space that affords privacy equivalent to that 
afforded to ambulatory users.
---------------------------------------------------------------------------

    \28\ Airbus also asked if the Department truly intended to 
require a space that accommodates both a 95th percentile male 
passenger and a 95th percentile male attendant at the same time, 
noting that this ``worst case scenario'' would be extremely rare. We 
believe that the rule text is sufficiently clear regarding the 
intended lavatory size and agree that the scenario described by 
Airbus is likely to be rare.
---------------------------------------------------------------------------

DOT Response
    After reviewing the comments, the Department is finalizing the 
proposed rule as written. We have chosen to place size standards in the 
rule text, rather than in guidance, because those standards are 
necessary to ensure that the lavatory is of sufficient size to 
accommodate larger passengers and larger attendants alike. We have not 
adopted Boeing's suggestion that in the long term, airlines should be 
permitted to use curtains to help create a substantially equivalent 
privacy space. Such visual barriers may be necessary in the short term 
when lavatories are not required to be expanded beyond current 
measurements. However, such a solution would be inappropriate in the 
long term, given that the Department is providing airlines and aircraft 
manufacturers ample time to engineer and develop fully compliant 
solutions.
3. Lavatory Interiors
NPRM and Comments
    In the Part 2 NPRM, the Department included for reference its 
proposed rules from the Part 1 NPRM relating to lavatory interiors. The 
Department did not propose new rules for lavatory interiors that would 
apply to the larger lavatories described in the Part 2 NPRM.
    PVA noted that passengers with disabilities should be able to 
access flush controls, call buttons, the lavatory door, the sink, paper 
towels, and trash dispenser from a seated position. A4A supported the 
proposal as written. Boeing noted that larger lavatories may produce 
situations where certain controls may not be reachable from a seated 
position (on the toilet or on the OBW).
DOT Response
    The Department is adopting the provisions regarding lavatory 
interiors as described above in the discussion of the Part 1 NPRM. In 
response to PVA's comment, we anticipate that passengers with 
disabilities will be able to access, from a seated position, the 
components that they described.
4. Implementation: Effective Date and Retrofitting
NPRM and Comments
    In keeping with its commitment to the ACCESS Advisory Committee, 
the Department proposed to require accessible lavatories on new single-
aisle aircraft that are: (1) ordered 18 years after the effective date 
of the final rule;

[[Page 50031]]

(2) delivered 20 years after the effective date of the final rule; or 
(3) part of a new type-certificated design filed with the FAA or a 
foreign carrier's safety authority one year after the effective date of 
the final rule.\29\ The Department also proposed that airlines not be 
required to retrofit existing aircraft to install larger lavatories. 
This proposal was consistent not only with the ACCESS Advisory 
Committee's agreement, but also with existing part 382.\30\ The 
Department asked extensive questions regarding whether and how to 
accelerate this time frame for the final rule, along with the costs and 
benefits of doing so.
---------------------------------------------------------------------------

    \29\ Most newly manufactured aircraft are based on an existing 
type-certificated design that has already been filed with the FAA. 
The intent of the ``new type-certificated design'' provision is to 
require fully accessible lavatories as part of any newly designed 
aircraft, so long as the design is filed more than one year after 
the effective date of the rule. A4A and IATA asked the Department to 
clarify that this provision ``is referring to a clean sheet design 
(i.e., new TCDS and pursuant to 14 CFR 21.19), not aircraft that are 
already type certificated (e.g., B737-MAX) with amended type 
certification programs.'' We believe that the rule is adequately 
clear that this provision refers to clean sheet designs.
    \30\ See 14 CFR 382.63 (``You are not required to retrofit cabin 
interiors of existing aircraft to comply with the requirements of 
this section. However, if you replace a lavatory on an aircraft with 
more than one aisle, you must replace it with an accessible 
lavatory.'')
---------------------------------------------------------------------------

    As noted above, disability advocates argued for a more accelerated 
implementation period. PVA and NDRN stated that the Department should 
deduct the 6-year gap between the Committee's agreement and the Part 2 
NPRM, for a current implementation period of 12/14 rather than 18/20. 
They argued that this reduction would meet the parties' reasonable 
expectations at the time the agreement was formed. The MDA urged the 
Department to adopt a 10-year maximum implementation. United Spinal did 
not propose a specific time frame but urged the Department to act 
``with all deliberate speed,'' including a requirement for retrofitting 
when an aircraft is taken out of service.\31\ Similarly, advocacy 
organizations including AARP, FlyersRights, Disability Rights 
Pennsylvania, Flying Disabled, and Dementia-Friendly Airports Working 
Group all argued for significantly accelerated implementation. Some 
urged retrofitting, and others noted that DOT required accessible 
lavatories on twin-aisle aircraft within only two years from the date 
of that rule. FlyersRights argued that the larger lavatories should 
also be required on aircraft manufactured pursuant to amended type 
certificates filed three years after the effective date of the final 
rule.
---------------------------------------------------------------------------

    \31\ Comment of United Spinal at 2 (``DOT should require 
accessible lavatories be installed in all single-aisle aircraft that 
are taken out of service for any other changes to the cabin.'')
---------------------------------------------------------------------------

    Airlines supported the proposed rule as written. A4A/IATA posited 
that the six-year delay identified by PVA was a result of the 
Department's choices and not those of the stakeholders. A4A/IATA 
opposed any reduction in the rule's proposed timing and asked for a 
full explanation of DOT's justification for any accelerated 
implementation, as well as additional public comment if such a 
reduction would occur. With those qualifications, A4A/IATA indicated 
that it was open to supporting a 15/17 implementation period. Spirit 
Airlines described the timeline as proposed by the Department as 
``reasonable.''
    As for aircraft manufacturers, Boeing asked the Department to honor 
the timeline of the negotiated rulemaking.\32\ Airbus did not comment 
on the implementation period but noted that many of its aircraft are 
already accessible, with more on the way to delivery.
---------------------------------------------------------------------------

    \32\ Boeing provided proprietary information regarding the 
options that it has explored and is currently exploring for 
providing accessible lavatory solutions, along with the advantages 
and disadvantages of those options as viewed by its airline 
customers.
---------------------------------------------------------------------------

DOT Response
    After careful consideration of all of the comments, the Department 
concludes that a faster implementation period is both necessary and 
appropriate. First, in our view, requiring accessible lavatories on an 
18/20 implementation period would penalize passengers with disabilities 
and other stakeholders who would benefit from the rule, for the 
Department's own delay in finalizing the rule. The Department proposed 
18/20 years for the implementation period to honor the promise to 
stakeholders during the negotiated rulemaking. However, given the 
technical feasibility of having accessible lavatories earlier and the 
Department's position that accessible toileting is a basic human need 
and right, the Department determined that it is unacceptable to have 
individuals with disabilities wait another 18/20 years after the 
effective date of the rule. In our view, reducing the implementation 
period by six years would be the minimum that the Department could do 
to maintain the reasonable expectations of the stakeholders as 
expressed in the 2016 ACCESS Advisory Committee's Term Sheet. Given the 
significance of accessible lavatories to passengers with disabilities 
and other stakeholders, it is also appropriate to do more than the bare 
minimum. The Department is mandating implementation on the fastest 
basis that is both realistic and economically feasible. After reviewing 
the record of the ACCESS Advisory Committee and the comments received 
to the NPRM, we believe that a 10/12 implementation period for newly-
manufactured aircraft is realistic from a technological, engineering, 
and manufacturing perspective. This is particularly true given that the 
core lavatory specifications found in this final rule are essentially 
unchanged from the 2016 Term Sheet and the 2021 NPRM. In short, we are 
confident that technical solutions do exist, and can be implemented 
within a 10/12 time frame. This time frame also allows airlines and 
manufacturers time to satisfy existing orders and deliveries without 
interruption.
    So far as we can determine, the primary driver of industry's 
concern is cost, in the form of lost revenue from removal of seats and/
or impingement of a larger lavatory into space that could be used for 
galleys (food and beverage service).\33\ As we explain in our 
Regulatory Impact Analysis, those costs may be recoverable in the form 
of higher air fares. Moreover, while the Department could reduce those 
burdens by extending the implementation period, any such extension will 
necessarily impose burdens on passengers with disabilities who will be 
forced to wait longer to enjoy the basic human dignity of being able to 
use a lavatory on a long-haul flight.
---------------------------------------------------------------------------

    \33\ During the Access Advisory Committee proceedings, industry 
stakeholders expressed concern about mandating accessible lavatories 
in the middle of an aircraft's ordering/manufacturing cycle, and 
maintaining fleet commonality, (i.e., realizing the considerable 
cost savings that arise from having predictable features among an 
aircraft's fleet). See https://www.transportation.gov/office-general-counsel/negotiated-regulations/3rd-plenary-meeting-%E2%80%93-presentation-airplane-life-cycle. We have not seen 
evidence that a 10/12 implementation period would significantly 
impact either of these concerns.
---------------------------------------------------------------------------

    Our economic analysis reflects that with a 10/12 implementation 
period, that net revenue impacts to airlines will range from a loss of 
1.6 percent to a gain of less than one percent. Airfare increases could 
range from zero to 3 or 4 percent of baseline airfares, depending on 
the ability of airlines to pass on increased costs through increases in 
airfare. These are relatively small impacts considering access to 
toilets is a basic human need and should be available to all.
    We have considered the even more aggressive solution of 
retrofitting, but continue to hold the view that retrofitting should 
not be required

[[Page 50032]]

because of cost uncertainties. Similarly, we have not required 
accessible lavatories on amended type-certificated aircraft earlier 
than 10/12 because this could again require either retrofitting or 
early replacement of existing aircraft, which would add significant 
costs or may not be technically feasible due to the production cycle of 
new aircraft. We will continue to require accessible lavatories on new 
type-certificated (clean sheet) designs filed with the FAA or a foreign 
safety authority more than 1 year after the effective date of the 
rule.\34\
---------------------------------------------------------------------------

    \34\ During the Access Advisory Committee proceedings, 
stakeholders learned that it took Bombardier approximately 20 years 
to manufacture its C-series aircraft from a clean-sheet design that 
included an accessible lavatory. It does not logically follow, that 
it necessarily takes 20 years to implement accessibly lavatory 
solutions on existing type-certificated aircraft. As we also 
explained in the NPRM, airline customers largely chose not to select 
the accessible-lavatory option on the C-Series (now Airbus A220) 
aircraft that they ordered.
---------------------------------------------------------------------------

III. Severability

    The overall purpose of this rule is to improve accessibility of 
lavatories on single-aisle aircraft in both the short term and the long 
term. The short-term elements include improvements to lavatory 
interiors, information requirements, training requirements, required 
procedures for sharps and bio-waste, removal of the International 
Symbol of Accessibility, improvements to the aircraft's OBW, and a 
requirement for a visual barrier under certain circumstances. All of 
these measures are designed to improve accessibility in the time period 
before the size of the lavatories themselves must be expanded. The 
Department finds that these short-term improvements can operate 
independently of the long-term measures to increase the size of the 
lavatory. Moreover, while the short-term measures form a suite of 
improvements, they can each function separately from each other. For 
example, the required standards for an accessible OBW can function 
separately from the required improvements to existing lavatory 
interiors.
    The long-term improvements include a lavatory size requirement for 
the passenger onboard an OBW, a lavatory size requirement for the 
passenger's attendant, and a requirement that airlines provide such 
lavatories on new single-aisle aircraft within a 10/12 time frame as 
discussed above. These measures can function separately from each other 
and are intended to operate as such. In the event that a court were to 
invalidate one or more of this final rules unique provisions, the 
Department's intent is that the remaining provisions should remain in 
effect to the greatest extent possible.

Regulatory Analyses and Notices

A. Executive Order 12866 (Regulatory Planning and Review), Executive 
Order 13563 (Improving Regulation and Regulatory Review), Executive 
Order 14094 (Modernizing Regulatory Review) and DOT Regulatory Policies 
and Procedures

    This final rule has been determined to be significant under section 
3(f)(1) of Executive Order 12866 (``Regulatory Planning and Review''), 
as amended by Executive Order 14094, (``Modernizing Regulatory 
Review''),\35\ and under the Department of Transportation's Regulatory 
Policies and Procedures because of its considerable interest to the 
disability community and the aviation industry. It has been reviewed by 
the Office of Management and Budget (OMB) under Executive Order 12866. 
A summary of the Department's economic analysis is provided in the 
paragraphs to follow, and the complete Regulatory Impact Analysis is 
available in the docket for this rulemaking.
---------------------------------------------------------------------------

    \35\ 88 FR 21879 (Apr. 11, 2023).
---------------------------------------------------------------------------

    The objective of the rule is to ensure that passengers with 
disabilities not only can access lavatories on single-aisle aircraft, 
but also have privacy and dignity while using the lavatory during air 
travel. As such, this final rule addresses a human rights issue and 
promotes freedom to travel for people with disabilities. The lack of 
accessible lavatories on single-aisle aircraft makes air travel 
difficult for passengers with disabilities, especially if they use 
wheelchairs and need help transferring to a lavatory toilet. Some of 
the passengers, knowing that they will not be able to use the lavatory 
during a flight, may dehydrate themselves or even withhold bodily 
functions so that they do not need to urinate. These actions can cause 
adverse health effects, including increased chances of urinary tract 
infections. Other passengers may use adult diapers or catheters, which 
they may find degrading and uncomfortable. Some wheelchair users avoid 
flying altogether.
    The Department has determined that regulation is necessary because 
society cannot count on the private market to provide accessible 
lavatories reliably. The provision of accessible lavatories involves 
resource costs, as evident in the airlines' comments on the proposed 
rule and their reluctance to comply with the terms they agreed to 
during a negotiated rulemaking. Moreover, the lack of reliable 
information on accessibility means that consumers do not have an 
adequate mechanism for expressing their preferences when they have a 
choice between flights with or without accessible lavatories. This 
final rule includes requirements that airlines provide accurate and 
consistent accessibility information under a more immediate timeframe 
to address the information problem. Accurate information benefits 
passengers with disabilities as well as those who simply would prefer 
additional space to perform routine lavatory functions if presented 
with the option.
    The primary benefits of the rule are due to expected improvements 
in the quality of travel experience for persons with disabilities who 
currently participate in the market for air travel. In addition, 
greater convenience and accessibility could lead passengers with 
disabilities to increase their use of air travel, either by switching 
from slower modes of travel or by making more long-distance trips. 
Assigning monetary values to such basic human rights as the ability to 
relieve oneself involves intangible dimensions that are inherently 
difficult to quantify. These values are not necessarily observed in the 
market. Nevertheless, the Department gives full consideration to such 
unquantified and non-monetized benefits in its evaluation of this this 
rule. These attributes interact with and can be difficult to 
empirically distinguish from other aspects, including convenience or 
reductions in the amount of time needed for travel planning or for 
travel itself, that are easier to value. Using an estimate of 
passengers' willingness to pay to avoid inconvenience, the benefits 
analysis applies a value of $194 one-way trip to monetize benefits of 
accessible lavatories to passengers with disabilities.
    The cost analysis is premised on the assumption that installing an 
accessible lavatory will require airlines, on average, to eliminate 
three passenger seats per aircraft. The three-seat loss assumption 
originated from airline industry analysis presented early in the 
rulemaking proceedings, and the Department recognizes that there will 
be variation in impacts across airlines. The Department lacks 
sufficient data to support an alternative assumption.
    Table 1 summarizes the results of the analysis and the potential 
economic effects of the rule over the analysis timeframe, 2023-2067. 
Benefits analyzed over 2023-2067 are $1 billion at a 3% discount rate 
or $571 million at a 7% discount rate. The loss of three passenger 
seats per aircraft results in societal costs that include lost producer

[[Page 50033]]

surplus due to the reduction in the number of passengers transported 
and the value of lost consumption. There also are resource costs due to 
manufacturing and designing improved lavatories and on-board 
wheelchairs as well as for flight attendant training. The cost analyzed 
over 2023 through 2067, are $459 million at a 3% discount rate or $228 
million at a 7% discount rate. The rule also could result in a transfer 
from passengers to airlines due to airlines increasing airfares in 
response to the reduced supply of seats. The annualized transfers 
estimated for the primary analysis are $2.2 billion at a 3% discount 
rate or $1.1 billion at a 7% discount rate.
    Passengers might experience economic effects in the form of 
increased airfares. The primary analysis estimates that in 2060 when 
all aircraft have accessible lavatories, domestic passengers would pay 
an additional $2.54 per ticket on average and international passengers 
would pay an additional $12.28. Passengers flying in earlier years, 
when some aircraft would not have accessible lavatories and reduced 
seating, would experience smaller airfare increases. The increase in 
ticket prices and resulting transfer from passengers offsets the direct 
revenue loss to airlines. Analysis of potential revenue and price 
effects suggests that relative to the baseline, net revenue impacts to 
airlines will range from a loss of 1.6 percent loss to a gain of less 
than one percent. Airfare increases could range from zero to 3 or 4 
percent of baseline airfares, depending on the ability of airlines to 
pass on increased costs through increases in airfare. Segments of the 
market characterized by a low price elasticity of demand will 
experience the largest potential fare increases, while the most price 
sensitive passengers will likely experience little to no airfare 
increases. In any case, the Department does not view compromises in 
accessibility as an acceptable mechanism for airlines to achieve or 
maintain lower prices in the market for air travel when the solution is 
technically and economically feasible.
    Based upon the economic analysis and other information received 
from stakeholders throughout the rulemaking, the Department finds that 
the benefits of the final rule justify its costs. While the benefits of 
the rule have not been monetized, the available information 
sufficiently demonstrates that the status quo is untenable for 
passengers with disabilities who want or need to travel by air. In the 
context of the market for air travel and the airline industry, the 
estimated costs and expected impacts to airfares and industry revenues 
are reasonable, especially when viewed against the lengthy lead time 
for compliance and that industry agreed to make the accessibility 
improvements reflected in the final rule in 2016. These facts 
considered as a whole provide the basis for the Department's reasoned 
determination that the benefits of the rule justify its costs.

                                 Table 1--Summary of Economic Impacts, 2023-2067
                                            [2021 dollars, millions]
----------------------------------------------------------------------------------------------------------------
                                               Total present                     Total present
                    Item                         value (3%      Annualized (3%     value (7%      Annualized (7%
                                                 discount)        discount)        discount)        discount)
----------------------------------------------------------------------------------------------------------------
Benefits....................................          $21,166           $1,019           $7,282             $571
----------------------------------------------------------------------------------------------------------------
Costs:
    Lost producer surplus...................            8,997              433            2,733              214
    Value of lost consumption (deadweight                 459               22              127               10
     loss)..................................
    Resource costs for lavatories, onboard                 94                4               48                4
     wheelchairs, and flight attendant
     training...............................
                                             -------------------------------------------------------------------
        Total societal costs................            9,549              459            2,908              228
                                             -------------------------------------------------------------------
        Net benefits........................           11,616              560            4,374              343
----------------------------------------------------------------------------------------------------------------
Other economic effects:
    Transfers from passengers to airlines...           44,785            2,157           13,562            1,063
----------------------------------------------------------------------------------------------------------------

B. 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. 
A direct air carrier or foreign air carrier is a small business if it 
provides air transportation only with small aircraft (i.e., aircraft 
with up to 60 seats/18,000-pound payload capacity). Relative to typical 
airlines' operating costs and revenues, the impact is expected to be 
nonsignificant. We received no comment on the preliminary finding of 
nonsignificance or, more generally, the potential impact of this 
rulemaking on small entities. Therefore, the Department certifies that 
this final rule will not have a significant impact on a substantial 
number of small entities.

C. Executive Order 13132 (Federalism)

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
final rule does not include any provision that: (1) 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; (2) imposes substantial direct compliance costs on State 
and local governments; or (3) preempts State law. States are already 
preempted from regulating in this area by the Airline Deregulation Act, 
49 U.S.C. 41713. Therefore, the consultation and funding requirements 
of Executive Order 13132 do not apply.

D. Executive Order 13084

    This rulemaking has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this rulemaking 
does not 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.

[[Page 50034]]

E. Paperwork Reduction Act

    This final rule adds two new collections of information that would 
require approval OMB under the Paperwork Reduction Act of 1995 (Pub. L. 
104-13, 44 U.S.C. 3501 et seq.). The rule requires carriers operating 
at least one aircraft with an FAA-certificated maximum seating capacity 
of 60 or more to provide information, on request, to qualified 
individuals with a disability or persons making inquiries on their 
behalf concerning, at a minimum, the accessibility features of aircraft 
lavatories set forth in the rule. A ``carrier'' is defined as a U.S. 
citizen or foreign citizen that undertakes, directly or indirectly, or 
by a lease or any other arrangement, to engage in air transportation.
    This information must be available on the carrier's website (if the 
carrier markets tickets to the public). The information must also be 
provided in printed or electronic form on the aircraft, including 
picture diagrams of accessibility features in the lavatory and the 
location and usage of all controls and dispensers. Carriers must 
provide the information required by this rule three years after the 
effective date of the rule.
    Under the Paperwork Reduction Act, before an agency submits a 
proposed collection of information to OMB for approval, it must first 
publish a document in the Federal Register providing notice of the 
proposed information collection and a 60-day comment period, and 
otherwise consult with members of the public and affected agencies 
concerning each proposed collection of information. The Department has 
not yet published a notice of the proposed information collection 
because the information will not be required until three years after 
the effective date of the final rule.

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1501, 
requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditures by States, local 
or Tribal governments, or by the private sector, of $100 million or 
more (adjusted annually for inflation with base year of 1995) in any 
one year. The 2021 threshold after adjustment for inflation is $165 
million, using the Implicit Price Deflator for the Gross Domestic 
Product. The assessment may be included in conjunction with other 
assessments, as it is here.
    The final rule is unlikely to result in expenditures by State, 
local, or Tribal governments of more than $100 million annually. 
However, it is estimated to result costs to the airline industry that 
may exceed $165 million annually. The estimated costs are discussed in 
the Department's Regulatory Impact Analysis.

G. National Environmental Policy Act

    The Department has analyzed the environmental impacts of this 
action pursuant to the National Environmental Policy Act of 1969 (NEPA) 
(42 U.S.C. 4321 et seq.) and has determined that it is categorically 
excluded pursuant to DOT Order 5610.1C, Procedures for Considering 
Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical 
exclusions are actions identified in an agency's NEPA implementing 
procedures that do not normally have a significant impact on the 
environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS).\36\ In 
analyzing the applicability of a categorical exclusion, the agency must 
also consider whether extraordinary circumstances are present that 
would warrant the preparation of an EA or EIS.\37\ Paragraph 4.c.6.i of 
DOT Order 5610.1C categorically excludes ``[a]ctions relating to 
consumer protection, including regulations.'' Because this rulemaking 
relates to ensuring both the nondiscriminatory access to air 
transportation for consumers with disabilities, as well as the safe 
transport of the traveling public, this rulemaking is a consumer 
protection rulemaking. The Department does not anticipate any 
environmental impacts, and there are no extraordinary circumstances 
present in connection with this rulemaking.
---------------------------------------------------------------------------

    \36\ See 40 CFR 1508.4.
    \37\ Id.
---------------------------------------------------------------------------

H. Congressional Review Act

    Pursuant to Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (the Congressional Review Act), OMB's Office of 
Information and Regulatory Affairs has found that this rule falls 
within the scope of 5 U.S.C. 804(2).

List of Subjects in 14 CFR Part 382

    Air Carriers, Civil rights, Consumer protection, Individuals with 
Disabilities, Reporting and recordkeeping requirements.

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

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

0
1. The authority citation for part 382 continues to read as follows:

    Authority:  49 U.S.C. 41702, 41705, 41712, and 41310.

Subpart C--Information for Passengers

0
2. In Sec.  382.41, revise paragraph (e) to read as follows:


Sec.  382.41  What flight-related information must carriers provide to 
qualified individuals with a disability?

* * * * *
    (e) Information regarding accessibility of lavatories (see Sec.  
382.63(h)); and
* * * * *

Subpart E--Accessibility of Aircraft

0
3. In Sec.  382.63, add the phrase ``not covered in paragraph (f) of 
this section'' after the word ``aircraft'' in paragraph (b), and add 
paragraphs (f), (g), and (h) to read as follows:


Sec.  382.63  What are the requirements for accessible lavatories?

* * * * *
    (f) As a carrier, you must ensure that all new single-aisle 
aircraft that you operate with an FAA-certificated maximum seating 
capacity of 125 or more that are delivered on or after October 2, 2026, 
and on which lavatories are provided shall include at least one 
lavatory that meets the following specifications:
    (1) Grab bars must be provided and positioned as required to meet 
the needs of individuals with disabilities.
    (2) Lavatory faucets must have controls with tactile information 
concerning temperature. Alternatively, carriers may comply with this 
requirement by ensuring that lavatory water temperature is adjusted to 
eliminate the risk of scalding for all passengers. Automatic or hand-
operated faucets shall dispense water for a minimum of five seconds for 
each application or while the hand is below the faucet.
    (3) Attendant call buttons and door locks must be accessible to an 
individual seated within the lavatory.
    (4) Lavatory controls and dispensers must be discernible through 
the sense of touch. Operable parts within the lavatory must be operable 
with one hand and must not require tight grasping, pinching, or 
twisting of the wrist. You must comply with these requirements to the 
extent that such accessible components are reasonably

[[Page 50035]]

available and certificated for the applicable aircraft type. You are 
not responsible for acquiring lavatory controls and dispensers with an 
accessible feature described above so long as you inform the Department 
of their unavailability despite your reasonable efforts.
    (5) The lavatory door sill must provide minimum obstruction to the 
passage of the on-board wheelchair across the sill while preventing the 
leakage of fluids from the lavatory floor and trip hazards during an 
emergency evacuation.
    (6) Toe clearance must not be reduced from current measurements.
    (7) The aircraft must include a visual barrier that must be 
provided upon request of a passenger with a disability. The barrier 
must provide passengers with disabilities using the lavatory (with the 
lavatory door open) a level of privacy substantially equivalent to that 
provided to ambulatory users. Visual barriers are not an acceptable 
method of providing privacy with respect to lavatories covered in Sec.  
382.64.
    (g) You are not required to retrofit cabin interiors of existing 
single-aisle aircraft to comply with the requirements of paragraph (f) 
of this section. However, if you replace a lavatory on a single-aisle 
aircraft after October 2, 2026, you must replace it with a lavatory 
complying with the requirements of paragraph (f) of this section. Under 
this paragraph (g), a lavatory is not considered replaced if it is 
removed for specified maintenance, safety checks, or any other action 
that results in returning the same lavatory into service. For retrofit 
lavatories, there shall be no requirement to install a visual barrier 
if doing so will obstruct the visibility of exit signs.
    (h) As a carrier operating at least one aircraft with an FAA-
certificated maximum seating capacity of 60 or more, you must comply 
with the following requirements:
    (1) You must train flight attendants to proficiency on an annual 
basis to provide assistance in transporting qualified individuals with 
disabilities to and from the lavatory from the aircraft seat. Such 
training shall include hands-on training on the retrieval, assembly, 
stowage, transfer features, and use of the aircraft's on-board 
wheelchair, and regarding the accessibility features of the lavatory, 
including any assembly or modifications to accessibility features.
    (2) You must provide information, on request, to qualified 
individuals with a disability or persons making inquiries on their 
behalf concerning, at a minimum, the accessibility features of aircraft 
lavatories set forth in paragraph (f) of this section. This information 
must also be available on the carrier's website (if the carrier markets 
tickets to the public), and in printed or electronic form on the 
aircraft, including picture diagrams of accessibility features in the 
lavatory and the location and usage of all controls and dispensers.
    (3) You must remove or conceal the International Symbol of 
Accessibility from new and in-service aircraft equipped with lavatories 
that are not capable of facilitating a seated independent transfer 
(i.e., a transfer from an on-board wheelchair to the toilet seat 
without requiring the use of an assistant). You must include the 
International Symbol of Accessibility if the lavatory is capable of 
providing a seated independent transfer.
    (4) You must develop and, upon request, inform passengers of trash 
disposal procedures and processes for sharps and bio-waste.
    (5) You must comply with the provisions of this paragraph (h) by 
October 2, 2026.

0
4. Section 382.64 is added to read as follows:


Sec.  382.64  What are the requirements for large accessible lavatories 
on single-aisle aircraft?

    (a) As a carrier, you must ensure that all new single-aisle 
aircraft that you operate with an FAA-certificated maximum seating 
capacity of 125 seats or more in which lavatories are provided, shall 
include at least one lavatory of sufficient size to:
    (1) Permit a qualified individual with a disability equivalent in 
size to a 95th percentile male to approach, enter, maneuver within as 
necessary to use all lavatory facilities, and leave, by means of the 
aircraft's on-board wheelchair, in a closed space that affords privacy 
equivalent to that afforded to ambulatory users; and
    (2) Permit an assistant equivalent in size to a 95th percentile 
male to assist a qualified individual with a disability, including 
assisting in transfers between the toilet and the aircraft's on-board 
wheelchair, within a closed space that affords privacy equivalent to 
that afforded to ambulatory users.
    (b) You are not required to retrofit cabin interiors of existing 
single-aisle aircraft to comply with the requirements of paragraph (a) 
of this section.
    (c) As a carrier, you must comply with the requirements of this 
section with respect to new aircraft that you operate that were 
originally ordered after October 3, 2033, or delivered after October 2, 
2035, or are part of a new type-certificated design filed with the FAA 
or a foreign carrier's safety authority after October 2, 2024.

0
5. In Sec.  382.65, add paragraphs (e), (f), (g), and (h) as follows:


Sec.  382.65  What are the requirements concerning on-board 
wheelchairs?

* * * * *
    (e) As a carrier, you must ensure that all new single-aisle 
aircraft that you operate with an FAA-certificated maximum seating 
capacity of 125 or more that are delivered on or after October 2, 2026, 
and on which lavatories are provided include an on-board wheelchair 
meeting the requirements of this section. The Access Board's published 
nonbinding technical assistance on aircraft on-board wheelchairs may be 
relied upon for compliance with these requirements.
    (1) The on-board wheelchair must be maneuverable both forward and 
backward through the aircraft aisle by an attendant.
    (2) The height of the on-board wheelchair seat must align with the 
height of the aircraft seat so as to facilitate a safe transfer between 
the on-board wheelchair seat and the aircraft seat.
    (3) The on-board wheelchair must have wheels that lock in the 
direction of travel, and that lock in place so as to permit safe 
transfers. Any other moving parts of the on-board wheelchair must be 
capable of being secured such that they do not move while the occupied 
on-board wheelchair is being maneuvered.
    (4) The on-board wheelchair shall be designed not to tip or fall in 
any direction under normal operating conditions when occupied for use.
    (5) The on-board wheelchair must have a padded seat and backrest 
and must be free of sharp or abrasive components.
    (6) The on-board wheelchair must have arm supports that are 
sufficiently structurally sound to permit transfers and repositionable 
so as to allow for unobstructed transfers; adequate back support; torso 
and leg restraints that are adequate to prevent injury during 
transport; and a unitary foot support that provides sufficient 
clearance to traverse the threshold of the lavatory and is 
repositionable so as to allow for unobstructed transfer. All restraints 
must be operable by the passenger.
    (7) The on-board wheelchair must be maneuverable in a forward 
orientation partially into at least one aircraft lavatory to permit 
transfer from the on-board wheelchair to the toilet.
    (8) The on-board wheelchair must be maneuverable into the aircraft 
lavatory without protruding into the clear space

[[Page 50036]]

needed to completely close the lavatory door.
    (9) The on-board wheelchair must prominently display instructions 
for proper use.
    (f) You are not required to expand the existing FAA-certificated 
on-board wheelchair stowage space of the aircraft, or modify the 
interior arrangement of the lavatory or the aircraft, in order to 
comply with this section. However, if the on-board wheelchair that you 
obtain does not fit within the original stowage space, and another 
space exists (e.g., an overhead compartment) where the on-board 
wheelchair could fit consistent with FAA safety standards, then you 
must stow the on-board wheelchair in that space and must request any 
necessary FAA approval to do so. You are not required to make the on-
board wheelchair available if the pilot-in-command determines that 
safety or security considerations preclude its use.
    (g) You must acquire an OBW that complies with as many requirements 
set forth in paragraph (e) of this section as are available. You are 
not responsible for the failure of third parties to develop and deliver 
an on-board wheelchair that complies with a requirement set forth in 
paragraph (e) of this section so long as you make reasonable efforts to 
purchase such an OBW and inform the Department at the address cited in 
Sec.  382.159 that an on-board wheelchair meeting that requirement is 
unavailable despite your reasonable efforts. If you cannot provide a 
wheelchair meeting requirement (e)(8) of this section despite your 
reasonable efforts, then you must provide, on request, the use of the 
visual barrier (e.g., a curtain) described in Sec.  382.63(f)(7) to 
enable the passenger to perform lavatory functions in privacy.
    (h) If you replace an on-board wheelchair on aircraft with an FAA-
certificated maximum seating capacity of 125 or more after October 2, 
2026, then you must replace it with an on-board wheelchair that meets 
the standards set forth in paragraph (e) of this section.

    Issued this 25th day of July, 2023, in Washington, DC.
Peter Paul Montgomery Buttigieg,
Secretary.
[FR Doc. 2023-16178 Filed 7-31-23; 8:45 am]
BILLING CODE 4910-9X-P