14 CFR Part 382 Nondiscrimination on the Basis of Disability in Air Travel (Air Carrier Access Act): Preamble and Section-by-Section Analysis (with amendments issued through July 2010)

382.10 How does a U.S. or foreign carrier obtain a determination that it is providing an equivalent alternative to passengers with disabilities? While the concept of equivalent facilitation has been a part of DOT Americans with Disabilities Act (ADA) rules since 1991 (see 49 CFR 37.7 – 37.9), it has not previously been part of ACAA rules. The use of “equivalent alternative” in this rule is somewhat broader than the use of “equivalent facilitation” in DOT or DOJ ADA rules or in the Americans with Disabilities Act Accessibility Guidelines issued by the U.S. Access Board, which focused on “hardware” modifications to vehicles and facilities. In the ACAA context, equivalent alternative can also refer to policies, practices, or other accommodations to passengers with disabilities.

The key point of this section is that, in order to be viewed as an equivalent alternative, a policy, practice, accommodation, or piece of equipment must really provide substantially equivalent accessibility to passengers with disabilities than compliance with a provision of the rule. It isn’t enough for a carrier’s proposed alternative to be different from a provision of the rule. Alternatives that provide less accessibility than the provisions of the rule, or that impose greater burdens on passengers with disabilities, cannot be considered an equivalent alternatives. Equivalent alternatives also pertain only to specific requirements of the rule. The Department would not entertain an equivalent alternative request that asked us to find that an entire foreign regulatory scheme was equivalent to this rule, for example.

Similar to the conflict of laws waiver provision, the equivalent alternative provision is structured to provide an incentive to carriers to file timely requests. If a carrier submits its request within 120 days of the publication date of this Part, the Department will try to respond before the effective date of the rule. The carrier can implement the policy or practice it requests as an equivalent alternative beginning on the effective date of the rule until the Department does respond. (A U.S. carrier subject to the current rule could not begin implementing an equivalent alternative it had requested within the 120-day time period until the new rule goes into effect, since the current rule does not provide for equivalent alternatives.) If a carrier submits its request after the 120-day period following publication, the carrier must comply with the provision of the regulation pending the Department’s response.