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)

Accessibility of Airport Terminals and Facilities

The Foreign Carriers NPRM (sec. 382.51) proposed that both U.S. and foreign carriers, at both U.S. and foreign airports, would be responsible for ensuring the accessibility of terminal facilities they own, lease, or control. The responsibility of foreign carriers at foreign airports would extend only to facilities involved with flights to or from the U.S. U.S. airports must meet applicable accessibility requirements (e.g., the ADAAG) under the ADA and section 504. The Foreign Carriers NPRM proposed a performance standard for foreign airports, since U.S. accessibility standards do not apply there. This performance standard would require carriers to ensure that passengers with disabilities could readily move through terminal facilities to get to or from boarding areas. Carriers could meet this performance standard by a variety of means. A related provision (sec. 382.91) proposed that, at both U.S. and foreign airports, both U.S. and foreign carriers would have to provide assistance to passengers with disabilities in moving through the terminal and making connections between gates.

Some comments appear to have misunderstood the Foreign Carriers NPRM to propose that DOT wished U.S. accessibility standards, like the ADAAG, to apply to foreign airports. The Foreign Carriers NPRM did not make such a proposal. Those comments aside, the most frequent comment made by foreign carriers and their organizations on this subject was that the Foreign Carriers NPRM’s proposals for airport facility accessibility did not sufficiently take into account the fact that foreign governments or airport operators, not airlines, controlled matters relating to accessibility at many foreign airports. For example, it was pointed out that under recent European Union regulations, airport operators are given most of the responsibility for accommodating passengers with disabilities in airports.

The Department recognizes that this may often be the case, and the final rule should not be understood to require carriers to duplicate the accommodations made by airport operators at foreign airports. Where foreign airport operators provide accessibility services or accessible facilities, foreign carriers may rely on the airport operators’ efforts, to the extent that those efforts fully meet the requirements of this Part. What happens, though, if the foreign airport operators’ efforts do not fully provide the accessibility that this rule requires (e.g., the airport operator is responsible for providing wheelchair assistance to passengers within the terminal, but does not provide connecting service between gates for wheelchair users who are changing planes on flights covered by the rule)? In such a case, this rule requires air carriers to supplement the services provided by the airport operator, by providing the supplemental services themselves or hiring a contractor to do so. If the carrier cannot legally do so (e.g., the airline is legally prohibited from supplementing the airport’s services to passengers with disabilities), the carrier could seek a conflict of laws waiver.

The Foreign Carriers NPRM asked whether the final rule should require automated kiosks operated by carriers in airports or other locations (e.g., for ticketing and dispensing of boarding passes) to be accessible, and, if so, what accessibility standards should apply to them. Disability community commenters generally expressed support for this proposal; carriers and their organizations generally expressed concern about the cost and technical feasibility of accessible kiosks. The Department believes that all services available to the general public should be accessible to people with disabilities. Nevertheless, the comments concerning kiosks were not sufficient to answer our questions about cost and technical issues. Consequently, the Department plans to seek further comment about kiosks in a forthcoming supplemental notice of proposed rulemaking (SNPRM). The preamble to the SNPRM will discuss this issue in more detail. On this subject, the Department intends to coordinate with the Access Board, which also has work under way that could affect kiosks.

As an interim measure, the final rule will require a carrier whose kiosks are not accessible to provide equivalent service to passengers with disabilities who cannot use the kiosks. For example, suppose a passenger with a disability having only carry-on luggage wants to use a kiosk to get a boarding pass without standing in line with passengers checking baggage. If, because the kiosk is not accessible, the passenger cannot use it, the carrier would have to provide equivalent service, such as by having carrier personnel operate the kiosk for the passenger or allowing the passenger to use the first class boarding pass line.

We recognize that some disability community commenters have expressed concern about the latter approach, thinking that it might call undue attention to the individuals receiving the accommodation. We agree that assisting the passenger at the kiosk is preferable. In our view, however, a potentially awkward accommodation is preferable to none at all (e.g., in a situation where personnel were not available to assist the passenger at the kiosk). We urge carriers to provide such an accommodation with sensitivity to passengers’ potential concerns about looking as though they have been singled out for special treatment.

U.S. airports are governed, for disability nondiscrimination, by several Federal laws and rules, all of which coexist on the same airport real estate. The ACAA and DOT’s ACAA rules apply to terminal facilities owned, leased, or controlled by a carrier, specifically facilities that provide access to air transportation (e.g., ticket counters, baggage claim areas, gates). Title II of the ADA, and the Title II rules of the Department of Justice (DOJ) apply to terminal facilities owned by public entities like state and local airport authorities. DOT’s rules under section 504 of the Rehabilitation Act of 1973 apply to those same facilities owned by public entities, if they receive DOT financial assistance (i.e., under the FAA’s airport improvement program). In some cases, DOT’s 504 rules could apply to airport facilities of airlines (e.g., those air carriers who receive essential air service program funds from DOT). DOT’s Title II ADA rules apply to transportation services provided by public entities (e.g., a parking shuttle service run by the airport authority) or public transportation services that serve the airport (e.g. a public rail or bus transit link to the airport). DOT’s Title III ADA rules apply to private transportation serving the airport (e.g., private taxi, demand-responsive shuttle, or bus service). DOJ’s Title III ADA rules also apply to places of public accommodation on airport grounds that serve the general public (e.g., hotels, restaurants, news and gift stores).

Fortunately, ascertaining the practical obligations of various parties at the airport is a good deal less confusing than this summary of overlapping authorities might make it seem. In a November 1996 amendment to its existing ACAA rule, the Department clarified these relationships, and this understanding of the relationship carries over into the new ACAA rule (see 61 FR 56417-56418, November 1, 1996). Basically, regardless of which statutory or regulatory authority or authorities apply to a particular facility or portion of a facility, Title II ADA requirements apply to public entity spaces and Title III ADA requirements apply to private entity spaces. The Americans with Disabilities Act Accessibility Guidelines (ADAAG) are the physical accessibility standards that apply throughout the airport (note, however, that until DOJ completes its adoption of the 2004 ADAAG, the 1991 ADAAG continues to apply spaces controlled by DOJ regulations).