[Federal Register Volume 85, Number 1 (Thursday, January 2, 2020)]
[Proposed Rules]
[Pages 27-37]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27631]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 382
[Docket No. DOT-OST-2019-0180]
RIN 2105-AE88
Accessible Lavatories on Single-Aisle Aircraft: Part 1
AGENCY: Office of the Secretary (OST), U.S. Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Transportation (Department or DOT) is
seeking comment in this Notice of Proposed Rulemaking (NPRM) on
proposed amendments to the Department's disability regulation. This
NPRM proposes specific measures for improving accessibility of
lavatories on single-aisle aircraft for passengers with disabilities.
These improvements include changes to the interior of the lavatory,
additional services that airlines would provide with respect to
lavatory access, training requirements, and improvements to the
aircraft's onboard wheelchair.
DATES: Comments should be filed by March 2, 2020. Late-filed comments
will be considered to the extent practicable.
ADDRESSES: You may file comments identified by docket number DOT-OST-
2019-0180 by any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov and follow the online instructions for submitting
comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave. SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Ave. SE, between 9:00 a.m. and 5:00 p.m. ET,
Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
Instructions: You must include the agency name and docket number
DOT-OST-2019-0180 or the Regulatory Identification Number (RIN) for the
rulemaking at the beginning of your comment. All comments received will
be posted without change to https://www.regulations.gov, including any
personal information provided.
Privacy Act: Anyone can search the electronic form of all comments
received in any of our dockets by the name of the individual submitting
the comment (or signing the comment, if submitted on behalf of an
association, business, labor union, etc.). You may review DOT's
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78), or you may visit https://www.transportation.gov/privacy.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov, or to the street
address listed above. Follow the online instructions for accessing the
dockets.
FOR FURTHER INFORMATION CONTACT: Robert Gorman, Senior Trial Attorney,
Office of Aviation Enforcement and Proceedings, 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
Enforcement and Proceedings,
[[Page 28]]
U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington,
DC 20590, 202-366-9342, 202-366-7152 (fax), [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. Statutory Authority
The Air Carrier Access Act (ACAA), 49 U.S.C. 41705, prohibits
discrimination in airline service on the basis of disability by U.S.
and foreign air carriers. However, it does not specify how U.S. and
foreign air carriers must act to avoid such discrimination or how the
Department should regulate with respect to these issues. The
Department's authority to regulate nondiscrimination in airline service
is found in the ACAA in conjunction with its 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 that require carriers to
provide nondiscriminatory service to individuals with disabilities. In
issuing regulations implementing the ACAA, the Department's general
regulatory approach is to issue regulations that are reasonable,
straightforward, clear, and designed to minimize burdens consistent
with safety and access to air travel.
B. Need for a Rulemaking
Single-aisle aircraft are increasingly being used by airlines for
long-haul flights. At present, there is no requirement that airlines
provide accessible lavatories on single-aisle aircraft. The inability
to use the lavatory on long flights can present significant challenges
to passengers with disabilities, and poses a deterrent for some
passengers with disabilities to traveling by air.
C. History of Regulations Governing Accessible Lavatories on Aircraft
The Air Carrier Access Act (ACAA), enacted in 1986, prohibits
discrimination on the basis of disability in air travel.\1\ In 1988,
the Department conducted a regulatory negotiation to develop ACAA
regulations. The regulatory negotiation included representatives of the
airline industry, the disability community, and other stakeholders.\2\
In March 1990, the Department issued final ACAA regulations, found at
14 CFR part 382.
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\1\ 49 U.S.C. 41705.
\2\ 53 FR 23574, 23574 (June 22, 1988).
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The 1990 ACAA rule required twin-aisle aircraft to have at least
one accessible lavatory, if lavatories were installed on the aircraft.
In the context of twin-aisle aircraft, an accessible lavatory is one
that: (1) Permits a qualified individual with a disability to enter,
maneuver as necessary to use all lavatory facilities, and leave, by
means of the aircraft's onboard wheelchair (OBW); \3\ (2) affords
privacy to persons using the OBW equivalent to that afforded ambulatory
users; and (3) provides door locks, accessible call buttons, grab bars,
faucets and other controls, and dispensers usable by qualified
individuals with a disability, including wheelchair users and persons
with manual impairments.\4\
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\3\ An OBW is a wheelchair that is used to transport a passenger
with a disability between the aircraft seat and the lavatory, and is
stowed onboard the aircraft itself. An OBW should not be confused
with an aisle chair, which is used for enplaning and deplaning.
Aisle chairs transport passengers between the jetbridge and the
passenger's seat on the aircraft. Aisle chairs are generally kept in
the airport, rather than on the aircraft itself.
\4\ 14 CFR 382.63(a). The rule does not expressly require the
lavatory to be large enough to permit a passenger to enter the
lavatory with a personal care attendant who can help the individual
transfer from the onboard wheelchair to and from the toilet seat (a
``dependent transfer''). It is our general understanding, however,
that accessible lavatories on twin-aisle aircraft are generally
large enough to permit a dependent transfer.
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In the preamble to the 1990 ACAA rule, the Department stated that
by requiring accessible lavatories on aircraft with more than one
aisle, the result would be ``new aircraft with the greatest passenger
capacities, and which make the longest flights, having a lavatory that
handicapped persons can readily use.'' \5\ At the time, the Department
declined to require accessible lavatories on single-aisle aircraft.
Accessible lavatories on single-aisle aircraft were optional, but not
mandatory.\6\
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\5\ 55 FR 8008, 8021 (March 6, 1990).
\6\ 14 CFR 382.63(b).
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The Department noted airlines' concerns that providing accessible
lavatories on single-aisle aircraft may require airlines to remove
seats in order to install a lavatory of sufficient size to meet the
accessibility standards of the existing rule. The Department found that
those ``cost and feasibility concerns'' were ``worth serious
consideration,'' \7\ and ultimately decided at the time that it was
unable to ``obtain sufficient information to make a sound decision'' on
whether requiring accessible lavatories on single-aisle aircraft would
impose an undue burden on airlines.\8\ The Department announced its
intention to issue an advance notice of proposed rulemaking (ANPRM) to
seek comment on the issue.\9\ In 1992, the Department convened an
advisory committee to study this issue. The Committee issued a report
that discussed various lavatory designs, along with potential
associated costs.\10\
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\7\ 55 FR 8008, 8021.
\8\ Id.
\9\ Id.
\10\ See attachment at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0194.
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The 1990 ACAA rule also set standards for the availability and
design of OBWs. The rule generally requires airlines to provide OBWs in
two circumstances: (1) If the aircraft has an accessible lavatory; or
(2) on the request of a passenger with a disability, even if the
aircraft does not have an accessible lavatory.\11\ The rule also sets
basic standards for OBW design, including elements such as footrests,
movable armrests, adequate restraint systems, handles, and wheel
locks.\12\ The rule provides that the OBW must be designed to be
compatible with the aisle width, maneuvering space, and seat height of
the aircraft on which it is used, and must be easily pushed, pulled,
and turned within the aircraft by airline personnel.\13\
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\11\ The rule limits this requirement to aircraft with a design
seat capacity of more than 60 passenger seats, with certain
exceptions for specific types of smaller aircraft. 14 CFR 382.65(a).
There are two limitations to the rule that airlines must provide
OBWs on request when the lavatory itself is not accessible. First,
the basis of the passenger's request must be that the passenger can
use an inaccessible lavatory, but cannot reach it without the use of
an OBW. Second, airlines may require passengers to provide up to 48
hours' advance notice to provide this service. 14 CFR 382.65(b).
\12\ 14 CFR 382.65(c).
\13\ 14 CFR 382.65(c).
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As originally enacted, the ACAA covered only U.S. air carriers.
However, on April 5, 2000, Congress enacted the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century (``AIR-21''),
which, among other things, amended the ACAA to include foreign
carriers.\14\ In response to the AIR-21 requirements, the Department on
May 18, 2000, issued a notice of its intent to investigate complaints
against foreign carriers according to the amended provisions of the
ACAA. The notice also announced the Department's plan to initiate a
rulemaking modifying Part 382 to cover foreign carriers. On November 4,
2004, the Department issued a notice of proposed rulemaking (NPRM)
announcing its intention to apply the ACAA rule to foreign
carriers.\15\
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\14\ Public Law 106-181, 707(c), 114 Stat. 61, 158 (2000).
\15\ 69 FR 64364.
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During the process of amending Part 382 to apply to foreign
carriers, the Department received many comments
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expressing the view that the existing requirements concerning
accessible lavatories were inadequate. Commenters at that time stated
that accessible lavatories should be required in all aircraft,
including single-aisle aircraft. The Department acknowledged that
single-aisle aircraft sometimes make lengthy flights, and that
providing accessible lavatories on single-aisle aircraft would be a
significant improvement in airline service for passengers with
disabilities. However, the Department ultimately declined to impose a
requirement for accessible lavatories on single-aisle aircraft, given
concerns that the ``revenue loss and other cost impacts'' could be too
great.\16\
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\16\ 73 FR 27614, 27625; available at https://www.transportation.gov/sites/dot.gov/files/docs/Part%20382-2008_1.pdf.
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On May 13, 2008, the Department published a final rule amending
Part 382 to cover foreign air carriers.\17\ The 2008 final rule
requires foreign air carriers operating twin-aisle aircraft to provide
accessible lavatories with respect to new aircraft that were ordered
after May 13, 2009, or which were delivered after May 13, 2010.\18\ For
U.S. carriers, the requirement applies to aircraft that were initially
ordered after April 5, 1990, or which were delivered after April 1992.
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\17\ 73 FR 27614.
\18\ 14 CFR 382.63(d). The rule also extended the OBW
requirements to foreign air carriers. 14 CFR 382.65(d).
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D. DOT ACCESS Advisory Committee
1. Formation and History of Committee
On December 7, 2015, the Department issued a Federal Register
document indicating that it was exploring the feasibility of conducting
a negotiated rulemaking with respect to six accessibility issues,
including accessibility of lavatories on single-aisle aircraft.\19\ As
part of this process, the Department hired a neutral facilitator to
assist the Department in determining whether any or all of the six
issues would be appropriate for a negotiated rulemaking. The
facilitator found that the following three issues would be appropriate
for a negotiated rulemaking: (1) Whether to require accessible in-
flight entertainment and strengthen accessibility requirements for
other in-flight communications; (2) whether to require an accessible
lavatory on new single-aisle aircraft over a certain size; and (3)
whether to amend the definition of ``service animals'' that may
accompany passengers with a disability on a flight.\20\
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\19\ 80 FR 75953. The six issues were: (1) Accessibility of in-
flight entertainment; (2) supplemental medical oxygen; (3) service
animals; (4) accessible lavatories on single-aisle aircraft; (5)
seating accommodations; and (6) carrier reporting of disability
service requests. Id.
\20\ 81 FR 20265; see also https://www.regulations.gov/document?D=DOT-OST-2015-0246-0092.
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The Department established and appointed members to the Advisory
Committee on Accessible Air Transportation (ACCESS Advisory Committee
or Committee) to negotiate and develop proposed regulations addressing
accessible in-flight entertainment, accessible lavatories, and service
animals.\21\ The Committee comprised members representing various
stakeholders including the Department, airlines, flight attendants,
cross-disability advocacy groups, consumer groups, academic or non-
profit institutions having technical expertise in accessibility
research and development, and aircraft manufacturers.\22\ The Committee
formed separate subgroups of stakeholders to study and vote on the
three topics, depending on the stakeholders' areas of interest and
expertise. During the first meeting, the Department informed
stakeholders that if they came to a consensus on the terms of a
proposed rule, the Department would exercise good faith efforts to
implement that consensus to the extent possible.\23\ The ACCESS
Advisory Committee gathered data, conducted meetings and site visits,
and engaged in negotiations from May 2016 through November 2016.
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\21\ 81 FR 26178.
\22\ A full list of ACCESS Advisory Committee members and other
information on the Committee may be found at https://www.transportation.gov/access-advisory-committee.
\23\ Under the ground rules of the Committee, consensus was
defined as ``no more than two negative votes in each issue area'',
with abstentions not counting as negative votes. https://www.transportation.gov/office-general-counsel/negotiated-regulations/access-committee-ground-rules.
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2. Information Gathering
The ACCESS Advisory Committee gathered information concerning the
benefits of improving the accessibility of lavatories on single-aisle
aircraft. The Committee learned that single-aisle aircraft were being
increasingly used for longer-haul flights, on which accessible
lavatories were not available.\24\
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\24\ https://www.transportation.gov/sites/dot.gov/files/docs/Minutes%20-%201st%20Plenary%20Meeting.pdf. More recent data shows
similar trends. Figure 1 of the Preliminary Regulatory Impact
Analysis indicates that in 1997, narrow-body aircraft accounted for
slightly over 60% of departing flights of 2000-2499 miles; by 2018,
that figure had risen to 90%. Narrow-body aircraft accounted for
only 40% of departing flights of 2000-2499 miles in 1997; by 2018,
that figure rose to approximately 75%.
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Paralyzed Veterans of America (PVA) presented survey data showing
that for a majority of respondents, the inability to use a lavatory
would be reason enough to choose not to fly.\25\ PVA reported that some
passengers with disabilities choose to fly shorter routes, go to the
lavatory before entering the aircraft, or dehydrate themselves before
flying to alleviate the need to use the lavatory on the aircraft.\26\
More than 500 of 725 respondents to PVA's survey indicated that the
biggest hindrance was the size and space/design of the lavatory
itself.\27\ A majority of survey respondents also indicated that an OBW
would be necessary to reach the lavatory.\28\ Survey respondents noted
a number of issues with current OBWs, including lack of access to an
OBW, not knowing that OBWs are available, inability to transfer from
the OBW to the toilet, and the narrowness of the aisle in relation to
the OBW.\29\
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\25\ https://www.transportation.gov/sites/dot.gov/files/docs/3a.P4.Lav_.Advocate%20Survey%20Results.v2.pdf.
\26\ Id. at 4.
\27\ Id. at 3.
\28\ Id.
\29\ Id. at 3.
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3. Developments in Accessible Lavatory Design and OBW Design
The ACCESS Advisory Committee proceedings provided an opportunity
for manufacturers to demonstrate improvements to the accessibility of
lavatories on single-aisle aircraft. For example, at the first meeting
on May 17-18, 2016, Airbus presented information about its SpaceFlex
lavatories. During normal operation, they function as two lavatories,
separated by a dividing wall. On request, however, the dividing wall
can be removed by a flight attendant, creating a single large space for
the passenger and an assistant to enter and use the facilities.\30\
SpaceFlex lavatories are installed in the rear section of the aircraft
against the back wall, in the area that is often used for galley space
(where drinks, meals, snacks, and service carts are stowed). DOT has
learned that some low-cost airlines that do not use significant galley
space operate some aircraft with SpaceFlex lavatories. DOT has also
learned that certain Airbus aircraft currently in operation have
SpaceFlex lavatories installed as well.
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\30\ https://www.transportation.gov/sites/dot.gov/files/docs/Airbus%20Presentation%20on%20Lav.pdf. This is the version of
SpaceFlex known as ``V1.'' Airbus also produces a ``SpaceFlex V2,''
which does not increase the size of the lavatory, but provides a
transfer seat to assist passengers in transitioning from the OBW to
the aircraft toilet seat. To the Department's knowledge, no U.S.
carrier uses the SpaceFlex V2.
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Bombardier, Inc., a Canadian aircraft manufacturer, presented
information about the accessibility features of its single-aisle C
series aircraft. Bombardier explained that C-series lavatories were
designed to allow passengers with reduced mobility the ability to
transfer independently from the OBW to the toilet seat with the
lavatory door closed.\31\ Bombardier explained that accessible
lavatories were a design feature of the aircraft from its
inception,\32\ and that ``clean sheet'' designs can take up to 20 years
to produce. The Bombardier C series is now majority-owned by Airbus,
and is known as the Airbus A220; seating capacity ranges from 100 to
160.\33\ The accessibility lavatory feature of the Airbus 220 is
optional.
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\31\ https://www.transportation.gov/sites/dot.gov/files/docs/P3.Lav_.2.Block_.Bombardier%20Presentation.v2.2016.07.11.pdf.
\32\ https://www.transportation.gov/sites/dot.gov/files/docs/resources/individuals/aviation-consumer-protection/285871/july-meeting-minutes.pdf.
\33\ https://www.airbus.com/content/dam/corporate-topics/publications/backgrounders/Backgrounder-Airbus-Commercial-Aircraft-A220-Facts-and-Figures-EN.pdf.
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The ACCESS Advisory Committee also learned about an innovative OBW
design developed by researchers at the University of Hamburg in
Germany. The cantilevered design of the ``Hamburg Chair'' allows it to
enter the lavatory and be positioned over the toilet lid. The benefit
of this design is that a passenger does not have to stand up out of the
chair and make a transfer to the toilet. Instead, the passenger can
enter the lavatory, use the facilities in privacy, and exit the
lavatory without standing up.\34\ Representatives of the University of
Hamburg explained that the design was a prototype and had not been put
into mass production. Members of the ACCESS Advisory Committee
generally noted that the Hamburg Chair design was promising to the
extent that it would allow greater accessibility to the lavatory for
passengers with reduced mobility. They noted that even if the passenger
could not use the toilet itself, the passenger could use the Hamburg
Chair to enter the lavatory and perform other personal hygiene
functions with privacy. Some ACCESS Advisory Committee members did
raise hygiene concerns about the dual function of the chair.
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\34\ https://www.transportation.gov/sites/dot.gov/files/docs/3a.P4.Lav_.2016%20OBW%20v3.0.pdf. The Hamburg Chair has an optional
removable seat panel. With this feature, a passenger could lift the
toilet seat lid, position the chair over the toilet, then remove the
seat panel on the chair so that the passenger can use the toilet
without leaving the chair. Members of the ACCESS Advisory Committee
also expressed hygiene concerns with this feature.
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4. Development of Tier System
During the course of the ACCESS Advisory Committee's negotiations,
stakeholders recognized that there were various ways to improve
accessibility of lavatories, with varying costs and timelines for
implementation. For example, the lavatory interior could be upgraded to
include features such as accessible handles, faucets, and call buttons.
These improvements, which would not require increasing the floor
dimensions (``footprint'') of the lavatory itself, became known as
``Tier 1'' improvements.
The stakeholders also discussed various accessibility options that
would increase the footprint of the lavatory, but not to the full size
of a twin-aisle aircraft lavatory. Finally, the stakeholders discussed
the highest tier of accessibility: Expansion of lavatories to have the
footprint (and accessibility features) of lavatories on twin-aisle
aircraft.
Airlines took the position that lavatories with larger footprints
would take up space that could otherwise be filled by a row of seats.
Airlines and manufacturers argued that airlines would lose considerable
revenue from increasing the footprint of the lavatory and losing this
potential row of seats.\35\
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\35\ Airlines and manufacturers calculated that costs in the
form of lost revenue could be as high as $33.3 billion. https://www.transportation.gov/sites/dot.gov/files/docs/3a.OEM_.Airline%20Accessible%20Lav.Position.8.15.16..pdf.
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5. Consensus and Production of Term Sheet
On November 22, 2016, the ACCESS Advisory Committee reached
consensus on proposed new regulations to improve the accessibility of
lavatories on single-aisle aircraft and to improve the accessibility of
in-flight entertainment.\36\ The Committee drafted an Agreed Term Sheet
for each issue. The accessible lavatory Term Sheet states that the
standards would apply to new single-aisle aircraft. The agreement does
not call for retrofitting of existing aircraft, but it does call for
airlines to comply with the new standards if they replace lavatories on
older aircraft.\37\ The agreement included provisions for both short-
term and long-term accessibility improvements.
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\36\ https://www.transportation.gov/office-general-counsel/negotiated-regulations/final-resolution-access-committee. Of the 27
total Committee members, 19 were voting members on the issue of
accessible lavatories. Voting in favor of the agreement were United
Airlines, the National Disability Rights Network, the National Air
Carrier Association, JetBlue Airways, a subject matter expert from
Oregon State University, the Association of Flight Attendants--CWA,
the International Air Transport Association, WestJet, Delta Air
Lines, Paralyzed Veterans of America, Frontier Airlines, Airbus, the
American Council of the Blind, the Regional Airlines Association,
and DOT. Boeing and Lufthansa voted to abstain, while the National
Council on Independent Living voted against the agreement.
\37\ As with the current rule, accessible lavatories would not
be required if the airline chooses not to install any lavatories on
the aircraft. In practice, however, airlines generally choose to
install at least one lavatory onboard aircraft.
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a. Short-Term Improvements
Under the ACCESS Advisory Committee's agreement, short-term
improvements include Tier 1 improvements and improvements to the OBW
design. Short-term improvements would be required on new single-aisle
aircraft delivered 3 years after the effective date of the final
rule.\38\ Airlines operating aircraft with 60 or more passenger seats
\39\ would be required to: (1) Train flight attendants to proficiency
with respect to transfers to and from the OBW, and with respect to
accessibility features of the lavatory and the OBW; (2) publish
lavatory accessibility information and provide it on request; and (3)
remove the International Symbol of Accessibility from lavatories that
are not capable of facilitating a seated independent transfer. Aircraft
with 125 or more passenger seats would be required to have at least one
lavatory with a number of accessibility features, including accessible
door locks, flush handles, call buttons, faucets, and assist handles.
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\38\ The proposed rule text refers to ``all new single-aisle
aircraft'' above a specific seating capacity that are ``delivered''
on or after a certain date. This phrasing makes clear that the
proposed rule is not limited to newly-certificated aircraft models.
Instead, it also applies to newly-manufactured aircraft of existing
models.
\39\ All references to seat capacity in the Term Sheet are
references to FAA-certified maximum seat capacities.
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Single-aisle aircraft with 125 or more passenger seats would also
be required to include an OBW meeting the Department's new standards.
The term sheet itself did not specify the standards for a new OBW,
other than: (1) It permits passage in the aircraft aisle; (2) it fits
within an available certificated OBW stowage space; and (3) it
accomplishes its functions without requiring modification to the
interior arrangement of the aircraft or the lavatory. The Term Sheet
called on the Department to develop OBW standards in consultation with
stakeholders, and to publish those standards in a proposed rule. The
Term Sheet indicated that standards for an over-the-toilet design OBW
should be established, if feasible.
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b. Long-Term Improvements
Under the terms of the agreement, long-term improvements would be
required on new single-aisle aircraft, with 125 or more passenger
seats, that were initially ordered 18 years after the effective date of
the final rule or delivered 20 years after the effective date of the
final rule. Such aircraft would be required to include at least one
lavatory of sufficient size to permit a qualified individual with a
disability to perform a seated independent and dependent transfer from
the OBW to and from the toilet within a closed space that affords to
persons using the OBW privacy equivalent to that afforded ambulatory
users. The lavatory would also include the interior accessibility
improvements found in Tier 1.
E. Congressional Directive
In July 2016, while the ACCESS Advisory Committee was working on
the regulatory negotiation, Congress enacted the FAA Extension, Safety,
and Security Act of 2016 (FAA Act of 2016).\40\ This statute directed
the Department to issue a supplemental NPRM by July 15, 2017, on the
issue of accessible lavatories on single-aisle aircraft.\41\
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\40\ Public Law 114-190, 130 Stat. 615, Sec. 2108.
\41\ The FAA Act of 2016 directed the Department to issue the
supplemental NPRM ``referenced in the Secretary's Report on
Significant Rulemakings, dated June 15, 2015, and assigned
Regulation Identification Number [RIN] 2105-AE12.'' Public Law 114-
190, 130 Stat. 615, Sec. 2108. At the time that the FAA Act of 2016
was enacted, one of the topics within RIN 2105-AE12 was ``whether
carriers should be required to provide accessible lavatories on
certain new single-aisle aircraft.'' See https://cms.dot.gov/regulations/2015-significant-rulemaking-archive (entry for June
2015). In other words, the direction was for the Department to issue
a supplemental NPRM on whether carriers should be required to
provide accessible lavatories on certain new single-aisle aircraft.
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F. Conducting Lavatory Rulemakings in Two Phases
In June 2019, the Department announced that it had determined that
the most appropriate course of action was to conduct two separate
accessible lavatory rulemakings: (1) This NPRM, covering short-term
accessibility improvements; and (2) an ANPRM titled ``Accessible
Lavatories on Single-Aisle Aircraft: Part 2,'' covering long-term
accessibility improvements.\42\ The Department reasoned that it was
necessary to gather additional data on the costs and benefits of long-
term improvements. The Department also determined that an NPRM on
accessible lavatories would be expedited if the complex and more costly
long-term improvements were not included at this time. Information on
the ANPRM can be found at Docket DOT-OST-2019-0181, RIN 2105-AE89.
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\42\ The Department's NPRM on accessible lavatories was
originally located at RIN 2105-AE32, which also addressed accessible
in-flight entertainment. The Department eventually determined that
the in-flight entertainment NPRM would proceed separately at RIN
2105-AE32, while the accessible lavatory rulemaking proceeded at
RINs 2105-AE88 (this NPRM) and 2105-AE89 (the ANPRM).
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G. OBW Design Process
As noted above, the ACCESS Committee's Term Sheet called for the
Department to consult with stakeholders on OBW design improvements. The
Department determined that the most appropriate method for developing
initial OBW design standards was to seek the assistance of the
Architectural and Transportation Barriers Compliance Board (Access
Board).\43\ The Access Board is a Federal agency that specializes in
producing accessibility guidelines and standards for the built
environment, transportation systems, and technology. On August 20,
2019, the Access Board published ``Proposed Advisory Guidelines for
Aircraft Onboard Wheelchairs,'' and sought public comment.\44\
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\43\ https://www.access-board.gov/.
\44\ https://www.federalregister.gov/documents/2019/08/20/2019-17873/advisory-guidelines-for-aircraft-onboard-wheelchairs. The
Access Board's Docket for OBW standards is found at https://www.regulations.gov/docket?D=ATBCB-2019-0002. The Access Board held
a public hearing on these advisory guidelines on September 12, 2019.
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As the Access Board explains, its Advisory Guidelines are not
mandatory. Instead, they are intended to ``serve as technical
assistance for covered air carriers, providing one example of how
covered air carriers might satisfy the performance standard for onboard
wheelchairs established by DOT in its forthcoming rulemaking.'' \45\
The Department has considered the Access Board's proposed technical
standards, along with the public comments in the Access Board's docket,
when developing the OBW performance standards found in this NPRM. The
Department's performance standards set the essential required features
of the OBW, while allowing flexibility in how manufacturers meet those
standards. Airlines may, if they wish, use the Access Board's more
specific technical standards as a guide for complying with the
Department's more generalized performance standards. However, airlines
would not be required to use the Access Board's technical
specifications in order to comply with the performance standards;
airlines may choose to adopt alternative specifications for the OBW
provided that those specifications achieve a level of accessibility
consistent with the performance standards found in the Department's
regulations.
---------------------------------------------------------------------------
\45\ 84 FR 43100, 43101 (August 20, 2019).
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II. Proposed Rule
The proposed accessibility improvements in this NPRM generally
track the Tier 1 provisions in the ACCESS Advisory Committee's Term
Sheet (relating to accessible interior features, training and
information requirements, and OBW improvements). This NPRM does not
propose expanding the size of the lavatory to provide a level of
accessibility equivalent to that found on twin-aisle aircraft. That
issue will be addressed in the related ANPRM.
A. Improvements to Lavatory Interiors
The first set of proposed improvements in this NPRM relate to the
accessibility features of the lavatory itself. These improvements,
found in proposed Sec. 382.63(f), would apply to lavatories on new
aircraft with an FAA-certificated maximum capacity of 125 seats or
more. The Department is tentatively of 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 seeks
comment on this issue.
First, the proposed rule would require grab bars to be installed
and positioned as required to meet the needs of individuals with
disabilities. We note that the ACCESS Advisory Committee's Term Sheet
provided that the pull handles must meet the needs of individuals with
disabilities and must support a minimum of 250 pounds.\46\ The proposed
rule does not include a weight-support minimum threshold. We are
tentatively of the view that setting a specific weight threshold would
be unduly prescriptive,\47\ and that grab bars must necessarily support
significant weight in order to adequately meet the needs of individuals
with disabilities. The Department seeks comment on whether this general
performance standard provides sufficient guidance to airlines and
lavatory manufacturers. The Department seeks comment on whether a
weight-support minimum threshold is
[[Page 32]]
necessary, and if so, what that threshold would be. We specifically
seek comment on whether or not the grab bar weight-support standards in
other lavatory environments (e.g., airports, trains, and restaurants)
are transferable to the environment of an aircraft lavatory, and if so,
how. We also seek comment on the costs and benefits of setting any
specific threshold.
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\46\ Term Sheet 2b.
\47\ In 2018, the Department issued guidance regarding its own
rulemaking procedures. The guidance provides, in relevant part, that
regulations should be technologically neutral and should set
performance objectives. https://www.transportation.gov/sites/dot.gov/files/docs/regulations/328561/dot-order-21006-rulemaking-process-signed-122018.pdf, section 6(e).
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Next, the proposed rule would require 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 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.\48\
The Department seeks comment on whether this last requirement is
necessary, and the costs and benefits of including such a provision.
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\48\ See Term Sheet 2c.
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Next, the proposed rule would require attendant call buttons and
door locks to be accessible to an individual seated in the
lavatory.\49\ We seek comment on whether to further define
``accessible'' with respect to call buttons and door locks. For
example, we seek 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.
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\49\ The Term Sheet had separate provisions for call buttons and
for door locks. Specifically, the Term Sheet provided that ``call
buttons shall be provided in the lavatory and accessible to an
individual seated on the toilet,'' while ``the door lock must be
accessible by a 5th percentile female seated on the OBW, if any,
within the lavatory compartment.'' Term Sheet, sections 2e, 2i. The
proposed rule simplifies and consolidates those two provisions.
While we believe that both of these provisions are adequately
reflected in the rule as currently phrased, we seek comment on
whether the proposed rule should more explicitly track the
provisions of the Term Sheet.
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Next, the proposed rule would require that lavatory controls and
dispensers must be discernible through the sense of touch. This
rulemaking would also require operable parts of the lavatory to be
operable with one hand and not require tight pinching, grasping, or
twisting of the wrist.
We are of the view that the term ``operable parts'' includes, but
is not limited to, call buttons, door locks, faucets, lavatory
controls, and dispensers. We also seek comment on whether the
Department should specify the maximum force required to activate
operable parts; for example, whether the force should not exceed 5
pounds (2.2N), an accessibility standard applied under the Americans
with Disabilities Act (ADA) or whether the proposed performance
standard is sufficient to ensure accessibility.
Such requirements would apply if those accessible operable parts
are reasonably available and certificated for the applicable aircraft
type.\50\ We seek 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.
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\50\ This paragraph represents a consolidation of Term Sheet
provisions 2f and 2l. We believe that the proposed rule as currently
phrased adequately reflects these two provisions. We also note that
section 2f of the Term Sheet would separately require ``information
regarding location and use of all other lavatory controls and
dispensers to be made available through informational cards on
request, verbally through flight attendants, online, or by phone and
TTY where those services are ordinarily provided.'' In our view,
this provision is adequately reflected in proposed Sec. 382.63(h),
relating to training and information. We seek comment on whether the
rule should more explicitly track the provisions of the Term Sheet
in these respects.
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The Department proposes to require the lavatory door sill to
provide minimum obstruction for the passage of an OBW, consistent with
applicable safety regulations.\51\ The Department recognizes that door
sills must prevent the spillage of water into the aircraft cabin. On
the other hand, during site visits to inspect aircraft lavatories at
various airports, members of the ACCESS Advisory Committee's Lavatory
Working Group found that a steep door sill can be a significant barrier
for the entry of an OBW. This provision is intended to promote
accessibility without compromising safety. We seek comment on whether
the term ``minimum obstruction'' should be further defined and if so,
what that definition should be.
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\51\ See Term Sheet 2g.
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Next, recognizing that adequate toe clearance is necessary to
permit the OBW to maneuver into and out of the lavatory, the proposed
rule would require airlines not to reduce toe clearance below the
current specifications of the lavatory. The Department understands
``toe clearance'' to mean the space between the lavatory floor and the
lower edge of the sink or other fixtures of the lavatory. The
Department seeks comment on this proposed provision and on whether the
term ``toe clearance'' should be specifically defined. If so, should
the adequate toe clearance of a lavatory be defined in relation to the
foot supports of the OBW that is installed on the specific aircraft
containing that lavatory?
Finally, the proposed rule would require airlines to 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.\52\ We seek 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.
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\52\ See Term Sheet 2k.
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The Department seeks comment on the costs and benefits of these
features. The Department seeks comment on any additional features that
may improve the accessibility of lavatories on single-aisle aircraft
without expanding the footprint of the lavatory itself.\53\ The
Department also seeks 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. While the Department is
not proposing to require in this NPRM that lavatory footprints be
expanded to any particular size, the Department is considering whether
to prohibit the footprint of lavatories from being further reduced from
current measurements, on the ground that further reduction would
adversely impact accessibility.\54\ The Department seeks comment on the
costs and benefits of any such proposal.
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\53\ Section 2a of the Term Sheet included a provision that the
lavatory's toilet seat height must be between 17 and 19 inches. The
Department has declined to include this provision on the ground that
it is unduly prescriptive. We are also tentatively of the view that
the seat height requirement was included to ensure that the height
of the toilet seat, aircraft seat, and OBW seat were all reasonably
consistent. In our view, the more effective and flexible approach to
this issue is to require the OBW to be compatible with the both the
height of the toilet seat and the height of the aircraft passenger
seat. That issue is addressed in the OBW section below.
\54\ The Department notes that under 14 CFR 382.71, airlines are
already required to ensure that any replacement or refurbishing of
an 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. This existing requirement arguably does not apply to the
footprint of lavatories on single-aisle aircraft, because Part 382
does not currently specify any minimum footprint for lavatories on
single-aisle aircraft.
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[[Page 33]]
B. Retrofitting
Retrofitting of lavatories is addressed in proposed Sec.
382.63(g). The proposed rule reflects the provisions of the ACCESS
Advisory Committee's Term Sheet. Retrofitting of lavatories on aircraft
currently in service would not be required under the proposed rule;
however, if an airline replaces a lavatory 3 years or more after the
effective date of the rule, the proposed rule would require the airline
to install a lavatory that meets the new requirements. Under this
paragraph, 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.
C. Training and Information
New proposed training and information requirements are found in
Sec. 382.63(h). These requirements largely reflect the provisions of
the Committee's Term Sheet. They 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. Consistent with the Term Sheet, these provisions would apply
three years after the effective date of the final rule.
First, the proposed rule would require airlines to train flight
attendants to proficiency on proper procedures for providing assistance
to qualified individuals with disabilities to and from the lavatory
from the aircraft seat.\55\ Such training would include hands-on
training on the retrieval, assembly, stowage, and use of the aircraft's
OBW, and training regarding the accessibility features of the
lavatory.\56\ Consistent with the Term Sheet, the proposed rule would
require such training on an annual basis. The Department expects that
both initial and annual hands-on training will be required for airline
and contractor employees to gain proficiency in providing this
assistance, in light of factors such as the various OBW designs that
may be supplied to various aircraft, and the frequency of OBW use. The
Department seeks comment on whether annual training is necessary, or
whether a different frequency of training would be more appropriate.
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\55\ 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).
\56\ The Term Sheet states: ``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, including hands-on training on the
use of any new DOT-required on-board wheelchair, and with respect to
any assembly or modifications to the accessibility features of the
lavatory or on-board wheelchair.'' The proposed rule is broader than
the Term Sheet to the extent that it clarifies training must be
provided on the retrieval and stowage of the OBW, along with its
assembly and use. The proposed rule does not implement the Term
Sheet to the extent that it suggests that flight attendants must be
trained with respect to any ``assembly or modifications'' of the
lavatory's accessibility features. Such a provision would be, in our
view, both unclear and unnecessary. In our view, it is appropriate
to generally mandate that flight attendants are trained on the
accessibility features of the lavatory. We solicit comment on
whether the training requirements should track the Term Sheet more
closely or should be otherwise modified.
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Second, the Department proposes to require airlines to provide
information on their websites and upon request regarding the
accessibility features of the lavatory.\57\ The purpose of this
proposed requirement 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.
---------------------------------------------------------------------------
\57\ Term Sheet 1(b).
---------------------------------------------------------------------------
Third, the Department proposes 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).\58\ During the
ACCESS Advisory Committee's deliberations, advocates noted that the
symbol appeared on certain lavatories where it was unclear what
features, if any, made the lavatory accessible. This proposed rule
would provide greater consistency regarding the use of the symbol.
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\58\ Removal of the international symbol is the only proposed
rule that would apply to existing in-service lavatories, and to
lavatories on aircraft with and FAA-certificated maximum capacity of
fewer than 125 seats. The Term Sheet uses the term ``seated
independent transfer'' without further defining the term. We believe
that the definition provided in the rule text accurately reflects
the meaning of ``seated independent transfer,'' but we seek comment
on that issue.
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Finally, the Department proposes to require airlines to develop
and, on request, inform passengers about their procedures for disposing
of sharps and bio-waste. It is reasonable to expect 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. The proposed rule does not require any specific type of
disposal procedures, however (e.g., a sharps disposal box installed
within the lavatory).\59\
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\59\ This provision is based on paragraph 2h of the Term Sheet.
The Term Sheet placed the sharps/biowaste provision within the
section of the agreement relating to the lavatory interior. In our
view it is most appropriately seen as a provision relating to
information and training.
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D. OBW Standards
The Department's proposed performance standards for new OBWs are
found in Sec. 382.65(h). The standards found in the NPRM describe the
expected performance of the OBW, while allowing manufacturers to find
efficient and innovative means for meeting those performance
expectations. At the same time, the proposed rule states that airlines
may use the Access Board's advisory guidelines for technical assistance
in furnishing an OBW that meets the Department's performance standards.
In this way, the Department intends to encourage innovation while also
providing a specific example of how to comply with the proposed rule.
Under the proposed rule, OBWs meeting the new standards must be
installed on new single-aisle aircraft with an FAA-certificated maximum
capacity of 125 seats or more that enter service 3 years after the
effective date of the final rule.\60\ The Department seeks comment on
whether aircraft with fewer than 125 seats tend to be used for shorter-
haul flights, and whether or not such aircraft should be excluded from
the new OBW requirements.
---------------------------------------------------------------------------
\60\ See Term Sheet 4A.
---------------------------------------------------------------------------
The proposed rule would require the OBW design to enable the OBW to
completely enter the lavatory in a backward orientation. Specifically,
the rule would require the OBW to fit over the closed toilet lid in a
manner that permits the lavatory door to close completely. It is
anticipated that the attendant would push the OBW backward into the
lavatory by means of handles on the front of the OBW. After the OBW is
situated over the closed toilet lid, the door would be closed and the
passenger would be able to perform non-toileting lavatory functions in
privacy. It is the tentative view of the Department that these OBW
features would substantially improve accessibility for passengers who,
at present, cannot enter the lavatory from existing OBWs.
[[Page 34]]
The proposed rule would also require that the OBW design enable it
at a minimum to partially enter the lavatory in a forward orientation.
The purpose of this provision is to facilitate a stand-and-pivot
maneuver from the OBW to the toilet seat, for passengers who are able
to do so. With a stand-and-pivot maneuver, the passenger would
partially enter the lavatory by means of the OBW, stand up, and pivot
180 degrees to reach the toilet seat. Grab bars and/or visual barriers
may be necessary to complete a stand-and-pivot. We seek comment on the
ways that an OBW can be best designed to facilitate forward entry and a
stand-and-pivot maneuver.
The next set of proposed rules relates to safety. In drafting these
proposed performance standards, the Department considered the features
that the Access Board has identified as necessary to ensure passenger
safety. The proposed rule would require that the height of the OBW seat
must align with the height of the aircraft seat to the maximum extent
practicable, in order to permit a safe transfer between the OBW and the
aircraft seat.\61\ The rule would require the wheels of the OBW to lock
in the direction of travel, in order to avoid contact with aircraft
seats and other obstructions as it moves down the aisle. Any other
moving parts of the onboard wheelchair would need to be capable of
being secured such that they do not move while the occupied onboard
wheelchair is being maneuvered. The wheels would also be required to
lock in place so as to provide stability during transfers. When
occupied for use, the onboard wheelchair would be required to not tip
or fall in any direction under normal operating conditions.
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\61\ Depending on the nature and extent of the passenger's
disability, it may be necessary for the passenger's seat to have a
movable aisle armrest. The Department believes that its existing
rules relating to movable aisle armrests (14 CFR 382.61 and 382.81-
87) are sufficient to ensure that passengers who require a movable
aisle armrest are accommodated; however, the Department seeks
comment on this issue.
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The OBW would be required to have a padded seat and backrest, in
order to preserve skin integrity, and to prevent spasticity and injury.
We specifically seek comment on whether the proposed rule text
adequately conveys the degree of back support and seat support
necessary to properly accommodate passengers with disabilities, and if
not, whether additional standards should be specified. For example,
should the text further indicate that the seat and backrest must be
``firm'' or ``solid?''
The rule would also require the OBW to be free of sharp or abrasive
components. The OBW would also be required to have arm supports that
are sufficient to facilitate transfers; arm supports that are
repositionable to permit unobstructed transfers between the OBW and the
aircraft seat; torso and leg restraints to ensure stability and prevent
injury; as well as a unitary foot support that would provide adequate
clearance over the lavatory threshold and also allow for an
unobstructed transfer between the OBW and the lavatory. Under the
proposed rule, restraints must be operable by the passenger in order to
permit the passenger the option to adjust the restraints unassisted.
Finally, the rule would require the OBW to have instructions
prominently displayed for proper use.
The Department seeks comment on these features, including their
costs, benefits, and necessity. We also seek comment on whether
additional features are necessary (for example, whether specific
performance standards should be required with respect to minimum load
weight), along with their costs and benefits.
Under paragraph (f) of this proposed rule, airlines would not be
required to modify aircraft interiors, including lavatories and
existing OBW stowage spaces, in order to comply with these OBW
provisions. During negotiations, airlines and aircraft manufacturers
expressed concern about the costs of altering the interior spaces of
the aircraft to accommodate a newly designed OBW. These provisions
reflect those concerns. Like the other improvements to the lavatory
interior, the OBW design would not require alteration of the interior
space of the lavatory or the aircraft generally.
The Department seeks comment on all aspects of this critical issue
of OBW stowage space. Specifically, the Department seeks further data
regarding: (1) The folded dimensions of OBWs currently in use on
single-aisle aircraft; (2) the locations and dimensions of current OBW
stowage spaces; and (3) the feasibility of designing and constructing
an OBW that meets the listed performance standards, particularly
including the ability to enter the lavatory in a backward orientation,
while fitting into the existing OBW stowage space for that aircraft.
The Department also seeks comment on an alternative proposal: Whether
to require OBWs to meet the new performance standards set forth in this
NPRM even if stowage space must be expanded to accommodate the OBW. The
Department seeks comment on the costs of expanding OBW stowage spaces
to meet these performance standards.
Under paragraph (g) of this proposed rule, and in keeping with the
ACCESS Advisory Committee's Term Sheet, an airline would not be
responsible for the failure of third parties to furnish an OBW that
complies with these proposed standards, so long as the airline notifies
and substantiates to the Department the efforts it expended to obtain
compliant OBWs. The Department recognizes that, at present, no
commercially available OBW exists that permits backward passage into an
aircraft lavatory, and that while airlines may seek to procure an OBW
that meets the Department's performance standards, airlines do not
design or produce OBWs themselves. The Department seeks comment on
whether there should be a deadline for an airline to notify the
Department that the airline has expended its efforts to obtain
compliant OBWs. If so, how many days after an airline becomes aware of
such commercial unavailability (e.g., 30 days) would be appropriate for
airlines to notify the Department? The Department also recognizes the
uncertainties surrounding the issue of whether OBWs meeting the
Department's new standards can fit within existing OBW stowage spaces.
The intent of proposed paragraph (g) is to encourage innovation in
meeting the proposed standards by affirmatively requiring airlines to
engage in reasonable efforts to obtain compliant OBWs from third
parties. The Department seeks comment on whether the ``reasonable
efforts'' clause is the most appropriate means of reaching the
overarching goal of ensuring that OBWs with the new accessibility
features are acquired.
Finally, the proposed rule provides that if an airline replaces an
OBW on an aircraft with an FAA-certificated maximum capacity of 125
seats or more three years after the effective date of the rule, then
the replacement OBW must comply with DOT's new OBW standards. That
provision is reflected in Sec. 382.65(h).
Regulatory Analyses and Notices
A. Executive Order 13771 (Reducing Regulation and Controlling
Regulatory Costs), Executive Order 12866 (Regulatory Planning and
Review), Executive Order 13563 (Improving Regulation and Regulatory
Review), and DOT Order 2100.6 (Policies and Procedures for Rulemakings)
This proposed rule is a significant regulatory action under section
3(f) of E.O. 12866 (58 FR 51735, October 4, 1993), ``Regulatory
Planning and Review,'' as supplemented by E.O. 13563 (76 FR 3821,
January 21, 2011),
[[Page 35]]
``Improving Regulation and Regulatory Review.'' The Department made
this determination by finding that, although the economic effects of
this proposed regulatory action would not exceed the $100 million
annual threshold defined by E.O. 12866, the proposed rule is
significant because of the rule's substantial public interest in
accessible transportation for individuals with disabilities.
Accordingly, this proposed rule has been reviewed by the Office of
Management and Budget (OMB). This proposed rule is issued consistent
with the policies and procedures governing the development and issuance
of regulations by the Department found in DOT Order 2100.6, ``Policies
and Procedures for Rulemakings'' (December 20, 2018). This proposed
rule is expected to be a regulatory action under Executive Order 13771.
Details on the estimated costs of this proposed rule can be found in
the rule's economic analysis.
The Department has conducted a preliminary regulatory impact
analysis (PRIA) in support of the NPRM. With respect to accessible
lavatories, the total estimated costs and benefits of the proposed rule
are as follows:
Table 1--Cost Summary of the Lavatory Accessibility and OBW Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
Discounted at Discounted at Annualized 25-
14 CFR Regulatory topic 7 percent 3 percent year cost Benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 382.63.......................... Lavatory Accessibility.... $21,353,264 $36,522,224 $1,832,334 Not Quantified.
Sec. 382.65.......................... OBW....................... 2,523,364 2,621,359 216,531 Not Quantified.
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Total.............................. Total..................... 22,876,628 39,143,583 2,048,866 Not Quantified.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits are expected to include ensuring the comfort, privacy,
dignity, and civil rights of passengers with disabilities by improving
their ability to access the lavatory and its facilities on long flights
so as to perform personal functions in privacy. Passengers who are
expected to benefit from the proposed rule include passengers currently
unable to use lavatories on single-aisle aircraft because of a
disability. Passengers with visual impairments will benefit from the
requirement that controls be discernible through the sense of touch.
Non-ambulatory passengers are expected to benefit from the safety
improvements to the OBW. In general, passengers with disabilities will
benefit from the provision requiring airlines to provide accurate
information about the accessibility of the aircraft lavatory.
The PRIA provided a cost estimate for proposed Sec. 382.63
(lavatory interiors, retrofitting, and information/training.) The
improvements to lavatory interiors are estimated to cost approximately
$1,000 per lavatory (collectively, $1.7 million discounted at 7% and
$2.9 million discounted at 3%.) By far the largest estimated cost
component for Sec. 382.63 is the cost of training flight attendants to
proficiency with respect to the operation of the OBW. These costs are
estimated at $19.6 million discounted at 7%, and $33.6 million
discounted at 3%. In general, other costs related to proposed Sec.
382.63 are estimated to be minimal.\62\
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\62\ The PRIA refers to the information and training measures as
appearing within Sec. 382.63(f); they now appear in Sec.
382.63(h). Similarly, the PRIA refers to lavatory interior
improvements as appearing within Sec. 382.63(h); they now appear in
Sec. 382.63(f).
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The PRIA also estimated costs for improvements to the OBW. It is
important to note that the PRIA estimated the costs of compliance with
the Access Board's technical standards, not the costs of compliance
with the more generalized performance standards in this NPRM. The PRIA
noted certain key uncertainties of its OBW analysis, including but not
limited to: (1) The difficulties in comparing the potential benefits of
the new OBW design to an existing baseline; (2) whether OBW
manufacturers are willing and able to manufacture an OBW with an over-
the-toilet design; (3) the ability of any OBW with over-the-toilet
positioning to fit within existing FAA stowage spaces; and (4)
uncertainties regarding the reasonable weight load for an OBW, given
constraints such as the width of the aircraft aisle. Bearing these
uncertainties in mind, the PRIA estimates the costs of developing
compliant OBWs to be $2.7 million undiscounted ($2.5 million discounted
at 7% and $2.6 million discounted at 3%). These costs are largely
related to design, and not to manufacturing. The Department's complete
PRIA with more details on the economic analysis may be found in the
rulemaking docket. The Department seeks comment on all elements of this
PRIA.
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).\63\ This rule
applies only to carriers that operate aircraft with FAA-certificated
maximum capacity of more than 60 seats. The Department hereby certifies
that this rule would not have a significant economic impact on a
substantial number of small entities.
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\63\ See 14 CFR 399.73.
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C. Executive Order 13132 (Federalism)
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This NPRM
does not include any provision that: (1) Has substantial direct effects
on the States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government; (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 13175
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this NPRM 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
13175 do not apply.
[[Page 36]]
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that DOT consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from OMB for each
collection of information it conducts, sponsors, or requires through
regulations. This rule adopts new information collection requirements
subject to the PRA. The Department will publish a separate notice in
the Federal Register inviting OMB, the general public, and other
Federal agencies to comment on the new and revised information
collection requirements contained in this document. As prescribed by
the PRA, the requirements will not go into effect until OMB has
approved them and the Department has published a notice announcing the
effective date of the information collection requirements.
F. Unfunded Mandates Reform Act
The Department has determined that the requirements of Title II of
the Unfunded Mandates Reform Act of 1995 do not apply to this
rulemaking.
G. National Environmental Policy Act
The Department has analyzed the environmental impacts of this
proposed 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). See 40 CFR
1508.4. 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. Id.
Paragraph 3.c.6.i of DOT Order 5610.1C categorically excludes
``[a]ctions relating to consumer protection, including regulations.''
This rulemaking concerns civil rights protection for individuals with
disabilities. The Department does not anticipate any environmental
impacts, and there are no extraordinary circumstances present in
connection with this rulemaking.
List of Subjects in 14 CFR Part 382
Lavatories; Single-aisle aircraft; Onboard wheelchairs.
For the reasons discussed in the preamble, the Department proposes
to amend 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 is revised to read as follows:
Authority: 49 U.S.C. 40113(a); 41702, 41705, 41712, and 41310;
FAA Extension, Safety, and Security Act of 2016, section 2108.
Subpart E--Accessibility of Aircraft
0
2. 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 [DATE THREE
YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE] 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.
(5) The lavatory door sill must provide minimum obstruction to the
passage of the onboard 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.
(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 [DATE THREE YEARS AFTER THE EFFECTIVE DATE OF THE FINAL
RULE], 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, and use of the aircraft's onboard wheelchair, and regarding
the accessibility features of the lavatory.
(2) You must provide information, on request, to qualified
individuals with a disability or persons making inquiries on their
behalf concerning the accessibility of aircraft lavatories. 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.
(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 onboard wheelchair to the toilet seat without
requiring the use of an assistant).
[[Page 37]]
(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
[DATE THREE YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE].
0
3. 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 [DATE THREE
YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE] and on which
lavatories are provided include an onboard wheelchair meeting the
requirements of this section. The Access Board published nonbinding
technical assistance titled, ``Advisory Guidelines for Aircraft Onboard
Wheelchairs,'' for compliance with these requirements.
(1) The onboard wheelchair must be maneuverable both forward and
backward through the aircraft aisle by an attendant.
(2) The onboard wheelchair must be maneuverable in a forward
orientation partially into at least one aircraft lavatory to permit
transfer from the onboard wheelchair to the toilet.
(3) The onboard wheelchair 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.
(4) The height of the onboard wheelchair seat must align with the
height of the aircraft seat so as to facilitate a safe transfer between
the onboard wheelchair seat and the aircraft seat.
(5) The onboard 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 onboard wheelchair must be
capable of being secured such that they do not move while the occupied
onboard wheelchair is being maneuvered.
(6) When occupied for use, the onboard wheelchair shall not tip or
fall in any direction under normal operating conditions.
(7) The onboard wheelchair must have a padded seat and backrest,
and must be free of sharp or abrasive components.
(8) The onboard 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.
(9) The onboard wheelchair must prominently display instructions
for proper use.
(f) You are not required to expand the existing FAA-certificated
onboard wheelchair stowage space of the aircraft, or modify the
interior arrangement of the lavatory or the aircraft, in order to
comply with this section.
(g) You are not responsible for the failure of third parties to
develop and deliver an onboard wheelchair that complies with a
requirement set forth in paragraph (e) of this section so long as you
notify and demonstrate to the Department at the address cited in Sec.
382.159 that an onboard wheelchair meeting that requirement is
unavailable despite your reasonable efforts.
(h) If you replace an onboard wheelchair on aircraft with an FAA-
certificated maximum seating capacity of 125 or more after [DATE THREE
YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE], then you must
replace it with an onboard wheelchair that meets the standards set
forth in paragraph (e) of this section.
Issued this 16th day of December, 2019, in Washington, DC, under
authority delegated in 49 CFR 1.27(n).
Steven G. Bradbury,
General Counsel.
[FR Doc. 2019-27631 Filed 12-31-19; 8:45 am]
BILLING CODE 4910-9X-P