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)

Aircraft Accessibility Features

The Foreign Carriers NPRM proposed extending to foreign carriers requirements for aircraft accessibility features based, with some modifications, on provisions in the existing ACAA rule. These features include accessible lavatories, movable aisle armrests, provision of on-board wheelchairs, and space to store wheelchairs and other mobility aids in the cabin. A few commenters apparently misunderstood the proposal as requiring retrofit of existing aircraft. This is not the case; no such requirement has ever existed or been proposed.

1. Movable aisle armrests

The current rule requires U.S. carriers using aircraft with 30 or more seats to have movable aisle armrests on at least half the passenger aisle seats. Such armrests need not be provided on emergency exit row seats or on seats on which movable aisle armrests are not feasible. The carrier is required to provide a means to ensure that individuals with mobility impairments or other passengers with disabilities can readily obtain seating in rows having movable aisle armrests. The requirement applies to new aircraft ordered or delivered after the rule went into effect (retrofitting was not required) or to situations in which existing seats are replaced by newly manufactured seats.

The Foreign Carriers NPRM proposed retaining these requirements and applying them to foreign carriers, with some modifications and clarifications. The exception for seats on which movable aisle armrests are not feasible was not included in the Foreign Carriers NPRM regulatory text, and a new requirement was proposed that would call on U.S. and foreign carriers to ensure that movable aisle armrests were proportionately provided in all classes of service. The information provided by carriers about the location of movable aisle armrests would have to be specified by row and seat number.

A number of carriers and aircraft manufacturers commented that the proposed deletion of the feasibility exception and the requirement to have movable aisle armrests in each class of service were problematic. They said that some seats and seat console designs for first and business class seats in fact did make movable armrests infeasible or too costly. Moreover, they said, the wider seat pitches in first and business class cabins often permitted horizontal transfers of passengers from boarding chairs to aircraft seats, making movable armrests unnecessary in these cases.

The Department agrees that, if in a given aircraft, seats and seat pitches are configured so as to permit a horizontal transfer of a passenger from a boarding wheelchair to the aircraft seat (i.e., a transfer that can be accomplished without lifting the passenger over the aisle armrest), it would not be necessary to have a movable aisle armrest at that location. Consequently, if a carrier can show, through an equivalent alternative request, that such transfers are feasible with a given cabin configuration, the Department would grant the request for the carrier’s aircraft using that configuration. The underlying rule, however, will be adopted as proposed, because without a means of making a horizontal transfer into aircraft seats, passengers who board using boarding wheelchairs will have to use the less comfortable, safe, and dignified method of being lifted over the armrest. Carriers that are unable to demonstrate an equivalent alternative would have to provide movable aisle armrests even in first and business class.

Some commenters also said that putting seats with movable armrests into existing aircraft should be required only when newly designed or developed types of seats are installed, as distinct from newly manufactured seats of the same type that formerly occupied the space. Consistent with other provisions of the ACAA, ADA, and section 504, when a feature of a vehicle or facility is replaced, it must be replaced with an accessible item. (We note that, according to information referred to in the regulatory evaluation, movable aisle armrests are now standard features of at least some seat manufacturers’ products.) This obligation is not limited to new models of a feature placed into a space where older models formerly were used. Indeed, adopting the commenters’ suggestion would create a means for carriers to avoid providing movable aisle armrests on existing aircraft when newly manufactured armrests are installed, since carriers could simply order older seat models whenever they replaced the seats. When carriers remove any of the old seats on existing aircraft and replace them with newly manufactured seats, half of the replacement aisle seats must have movable armrests.

Disability community commenters generally favored the Foreign Carriers NPRM proposal, but suggested some modifications. Some comments said that emergency exit rows should be made part of the base from which the 50 percent calculation should be made. The Department believes, however, that the existing formula, which excludes those rows from the calculation, will result in sufficient rows being equipped with movable aisle armrests. Other comments suggested requiring some rows (presumably, in economy as well as business or first-class sections) to have wider seat pitches, the better to accommodate service animals or assistive devices, or to remove some rows entirely and provide securement devices so that passengers could sit in their own wheelchairs. The Department regards these suggestions as impractical and potentially too costly to airlines, as they would reduce seating capacity on the aircraft. The latter suggestion, in addition, would be inconsistent with FAA safety rules concerning passenger seats on aircraft, since aircraft seats must be certified to withstand specified g-forces.

One comment suggested requiring that in new aircraft or those subject to a cabin refit, the bulkhead row always have a movable aisle armrest. While we do not believe it is necessary to be this specific in the regulatory text, we believe that this is a good idea that carriers and manufacturers should consider, except when a bulkhead row is unavailable to passengers with disabilities because of FAA safety rules (e.g., a bulkhead row that is also an exit row). Bulkhead rows are often used by people with disabilities (see the seating accommodations section of this Part).

2. Accessible lavatories

The Foreign Carriers NPRM proposed to retain the existing requirement that cabins of aircraft with more than one aisle (e.g., a twin-aisle aircraft like a 747) have an accessible lavatory. As under the existing rule, this requirement would apply to new aircraft (i.e., aircraft ordered/delivered after the effective date of the rule). If a carrier replaced an inaccessible lavatory on an existing twin-aisle aircraft, it would have to do so with an accessible lavatory. The Foreign Carriers NPRM also proposed to clarify that if a carrier replaced a component of an existing, inaccessible lavatory on a twin-aisle aircraft (e.g., a sink) without replacing the entire lavatory, the new component would have to be accessible.

Many disability community commenters believed the existing and proposed requirements concerning accessible lavatories were inadequate. They said that accessible lavatories should be required in all aircraft, including the much more common single-aisle aircraft. The absence of accessible lavatories makes travel uncomfortable and difficult for passengers with disabilities, they said. Airline industry commenters, on the other hand, said that adding a requirement for accessible lavatories on single-aisle aircraft would be overly costly and burdensome.

Particularly given that single-aisle aircraft often make lengthy flights (e.g., across North America, some trans-oceanic flights), it is clear that providing accessible lavatories on single-aisle aircraft would be a significant improvement in airline service for passengers with disabilities. One of the organizations that commented on the Foreign Carriers NPRM is in the process of working with carriers and manufacturers to develop an accessible lavatory design for single-aisle aircraft that would minimize seat loss. At the present time, however, the Department is concerned that the revenue loss and other cost impacts of requiring accessible lavatories on single-aisle aircraft could be too great. Consequently, we are not imposing such a requirement at this time. Providing accessible lavatories on single-aisle aircraft remains a matter of interest to the Department, and we will look carefully at ongoing developments in this area to determine if future rulemaking proposals may be warranted.

Some comments objected to the proposed requirement to use accessible components (e.g., a sink) when replacing a component of a lavatory on a twin-aisle aircraft. Cost concerns aside, the main point of these comments was that lavatories typically are sold and installed as a unit, and that it is unusual to replace a single component of a lavatory. Even when this happens, because the lavatory is an integrated unit, only a given component that is dimensionally consistent with its original design is likely to fit. The Department believes that this comment has merit, and we are deleting the sentence in question.

Several foreign carriers objected to the application to them of the existing rule’s requirement that when an inaccessible lavatory unit was being replaced on a twin-aisle aircraft, it must be replaced with an accessible lavatory. Their main concern was that since the accessible lavatory unit would require more space than its inaccessible predecessor, they would have to remove or forego seats, causing revenue loss. One carrier made very high estimates of seat loss from such a change (e.g., eight seats on some aircraft) and suggested that alternative means (e.g., a curtain) could provide as adequate restroom facilities as an accessible lavatory. Consequently, these commenters urged, the rule should require an inaccessible lavatory to be replaced with an accessible lavatory only in the context of a change in cabin layout.

Since the original ACAA rule (see 55 FR 8020-8021; March 6, 1990), the Department has drawn a distinction between single-aisle and twin-aisle aircraft for purposes of accessible lavatory requirements. While the Department has acknowledged since the time of the original rule that requiring accessible lavatories in twin-aisle aircraft involves direct costs and revenue losses (though some seat loss estimates, like the one referred to above, appear overstated), the Department determined then and continues to believe now that the requirement is justified in twin-aisle aircraft. The cabins of these aircraft are physically larger, affording somewhat greater flexibility than single-aisle aircraft in placing accessible lavatory units. They tend to be used on longer-distance flights and carry more people, making the presence of accessible lavatories all the more important to passengers. U.S. carriers have been subject to the same requirement for many years, and it is important to maintain a level playing field between U.S. carriers and their foreign carrier competitors in terms of such a requirement. Contrary to one foreign carrier comment, requiring accessible lavatories on twin-aisle aircraft does not discriminate against foreign carriers; U.S. carriers, no less than their foreign counterparts, use twin-aisle aircraft on long-distance international routes.

Several commenters requested a clarification with respect to the accessible lavatory requirement in a twin-aisle airplane, to the effect that only one accessible lavatory need be installed. For example, if a carrier was refitting a cabin, and replacing all its old inaccessible lavatories, it would only have to install one accessible lavatory unit. We believe that this is a reasonable interpretation of the requirement, and we will use this interpretation as we implement and enforce the rule. However, we do not believe that additional regulatory language is necessary.

3. Stowage Space for Wheelchairs

The Foreign Carriers NPRM proposed to retain with some modifications, and to apply to foreign carriers’ aircraft, the existing requirement that aircraft with 100 or more passenger seats have a priority space to stow at least one passenger wheelchair. The modifications proposed from the existing rule were to add dimensions of a wheelchair that would fit without disassembly into the priority space and to delete the application of this section to electric wheelchairs.

As with other aircraft accessibility provisions of the Foreign Carriers NPRM, the proposed requirement concerning on-board stowage of wheelchairs would apply to new aircraft. Contrary to concerns expressed by a number of carriers, the Foreign Carriers NPRM did not propose a retrofit requirement. Nor would the requirement apply to “all types of aircraft,” as several comments asserted. It would apply only to aircraft with 100 or more seats.

Comments from disability community commenters generally supported the proposed requirement, though several of these comments said that the dimensions proposed for wheelchairs to be carried in the cabin should be enlarged, given the size of many current types of mobility devices. Many foreign carrier comments said either that all wheelchairs should be carried in the cargo compartment or that carriers should have discretion concerning whether or not to carry a wheelchair in the cabin. Some comments expressed the concern that carriers could not fit a space for a folding wheelchair into their cabin configurations without losing seating capacity. One foreign carrier added that crew luggage should have priority over a passenger’s wheelchair.

The reasons for storing a wheelchair in the cabin are twofold. First, it can often be more convenient for a passenger to have the wheelchair close at hand when he or she leaves the aircraft and to be able to get as close as possible to the aircraft door on boarding before having to transfer. Second, as pointed out in the preamble to the original ACAA rule (55 FR 8035; March 6, 1990), passengers with disabilities have the same concerns as other passengers about loss of or damage to their property when it is checked. While, as some comments pointed out, requiring space for one wheelchair does not completely solve this problem for all passengers with disabilities, doing so does help at least one such passenger per flight. A bit of added inconvenience to non-disabled passengers or crew who might have to stow their carry-on items elsewhere seems an acceptable price to pay, in the context of a nondiscrimination rule, for this service to passengers with respect to their means of mobility.

For these reasons, the Department is adopting the proposed requirement. We recognize that some foreign carriers are used to exercising their discretion about where to carry passengers’ wheelchairs, as were U.S. carriers prior to the adoption of the original ACAA rule. U.S. carriers, with appropriate oversight from DOT, have successfully adapted to this requirement, and foreign carrier comments did not contain any compelling reasons why they could not do so as well. It is important to remember that foreign carriers will not be required to modify existing cabins just for the purpose of creating a space for passengers’ wheelchairs.

There is a wide variety of wheelchairs and mobility devices on the market. It would not be practical to require spaces that can handle every sort of device. The rule’s requirement is now limited to spaces for folding manual wheelchairs, the present and proposed language concerning cabin stowage of power wheelchairs having been deleted in response to comments expressing concern about the adequacy of space, problems arising from the disassembly and reassembly of wheelchairs in the context of transportation in the cabin, and potential issues concerning stowage of batteries. Of course, since only folding manual wheelchairs are permitted in the cabin, large, motorized mobility-assistive devices of any type – not just power wheelchairs, as such – would not have to be carried in the cabin.

Based on the Department’s experience, the dimensions in the Foreign Carriers NPRM should be sufficient to handle a considerable majority of models of folding wheelchairs. Consequently, while we agree that this required space will not be sufficient for all models, we believe it is a reasonable compromise between the needs of passengers and the space constraints of carriers. We note that, under the final rule, carriers are not required to carry electric wheelchairs in the cabin.

One matter that some comments raised was the so-called “seat-strapping” method of carrying wheelchairs in cabins. This involves strapping down a wheelchair across a row of seats in an aircraft that does not have the required space for stowing a folding wheelchair in the cabin. While nowhere mentioned or authorized in the current Part 382, this practice has been permitted by DOT enforcement policy in some cases. Some comments supported allowing this approach as an alternative to providing a stowage space in the cabin. The Department does not believe that this is an appropriate alternative to endorse in the rule, because it is a more awkward way of carrying a wheelchair and because it can, on a given flight, reduce seating capacity for other passengers. This is a more important consideration than ever, given frequently high load factors on many flights. However, because DOT practice has allowed this measure in the past, we do not believe it is fair to ban the practice altogether. Consequently, seat-strapping will not be permitted as an alternative to designated stowage spaces on new aircraft ordered by or delivered to carriers after two years from the rule’s effective date. The Department’s policy will not change with respect to existing aircraft.

4. On-board wheelchairs

The existing rule requires that, on aircraft with more than 60 seats, the carrier must provide an onboard wheelchair in any case if the aircraft has an accessible lavatory, and on a passenger’s advance request even if the aircraft does not have an accessible lavatory. The rationale for the latter requirement is that some passengers with limited mobility may be able to use an inaccessible lavatory on their own but may need to be assisted down the aisle to the lavatory in an on-board wheelchair. The Foreign Carriers NPRM proposed that this requirement apply on aircraft with 50 or more seats, as distinct from the criterion of more than 60 seats in the existing regulation. The reason for this proposal was that 50-seat regional jets are becoming an increasingly important component of the fleets of many carriers, and the accommodation provided by this section should be made available to passengers who use those aircraft.

Carriers and their associations objected to the application of the provision to 50-seat aircraft. Carriers cited cost as one reason for their position. In addition, they said, 50-seat aircraft typically have only flight attendant on board. If that attendant is assisting a passenger using an on-board wheelchair, he or she will be unable to carry out other duties. This could create difficulties if an emergency occurred while the flight attendant was assisting a user of an on-board wheelchair, which might also obstruct the aisle in an emergency situation. In addition, carriers questioned whether the interior of a 50-seat regional jet could be configured to provide storage space for the on-board wheelchair when it was not in use.

While the cost estimates of commenters for on-board wheelchairs appear to be overstated, we believe that the operational concerns of carriers with respect to the use of on-board wheelchairs on 50-seat aircraft with one flight attendant have merit. In addition, the typically very confined spaces in lavatory units on these aircraft make their use by persons with limited mobility problematic. Consequently, the final rule will retain the existing rule’s provision applying on-board wheelchair requirements to aircraft with more than 60 seats.