Air travel; nondiscrimination on basis of disability; and federally assisted programs and activities: Equipment to facilitate boarding of aircraft by individuals with disabilities,

[Federal Register: August 26, 1999 (Volume 64, Number 165)]

[Proposed Rules]

[Page 46611-46613]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr26au99-14]

DEPARTMENT OF TRANSPORTATION

14 CFR Part 382

49 CFR Part 27

[Docket OST-99-6159; Notice No: 5]

RIN 2105-AC81

Nondiscrimination on the Basis of Disability in Air Travel: Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Department is proposing to amend its rules implementing the Air Carrier Access Act of 1986 and section 504 of the Rehabilitation Act of 1973 concerning the provision of equipment to facilitate the boarding by individuals with disabilities on aircraft where level-entry boarding is not now available. The proposed rule would require air carriers and airports to work jointly to make lifts or other boarding devices available for aircraft, of whatever size, where level-entry loading bridges or existing lifts are not present.

DATES: Comments are requested on or before November 24, 1999. Late- filedcomments will be considered to the extent practicable.

ADDRESSES: Comments should be sent to Docket Clerk, Docket No. OST-99- 6159, Department of Transportation, 400 7th Street, SW., Room PL-401, Washington, DC, 20590. Comments will be available for inspection at this address from 10 a.m. to 5:30 p.m., Monday through Friday, and are also viewable through the Dockets Management System (DMS) portion of the Department's web (www.dot.gov). Commenters may also submit comments electronically. Commenters who wish to do so should follow the instructions on the DMS site. Commenters who wish the receipt of their comments to be acknowledged should include a stamped, self-addressed postcard with their comments. The Docket Clerk will date-stamp the postcard and mail it back to the commenter.

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant General Counsel for Regulation and Enforcement, Department of Transportation, 400 7th Street, SW., Room 10424, Washington, DC, 20590. (202) 366-9306 (voice); (202) 755-7687 (TDD).

SUPPLEMENTARY INFORMATION: On November 1, 1996, the Department published a final rule requiring airports and airlines to work together to ensure that lifts were available to provide level-entry boarding for passengers with disabilities who were flying on small commuter aircraft. This rule applied to aircraft with a seating capacity of 19- 30 passengers. The final rule, and the proposal that led to it, did not address the issue of level entry boarding for aircraft with 31 or more seats.

The original 1990 Air Carrier Access Act (ACAA) rule provided that, with an exception relevant only to the small commuter aircraft category, carriers must use ``ramps, mechanical lifts, or other devices (not normally used for freight)'' to provide boarding assistance, where level-entry boarding by loading bridge or mobile lounge was not available (14 CFR 382.39(a)(2)). The term ``other devices'' has been interpreted to include boarding chairs carried up aircraft stairs by carrier personnel.

Carrying passengers up stairs in a boarding chair is generally viewed as an undesirable way of providing access, for reasons having to do with the dignity, safety, and comfort of passengers. (It also increases risks to carrier personnel involved.) Consequently, the Department is proposing in this notice to require carriers to make lifts available for boarding assistance to any aircraft with a seating capacity of 31 seats or more where level-entry boarding by loading bridge or mobile lounge is not available. This requirement would apply to medium-size commuter aircraft or regional jets that are typically boarded from the tarmac in most airports, as well as to larger jets (up to and including ``jumbo jets'') at those airports or gates where, for some reason, level-entry boarding is not otherwise available.

The proposed regulatory provisions parallel those for small commuter aircraft. Carriers and airports would have to work together, create an agreement, and phase in implementation of lift service over a reasonable period of time. The Department seeks comment on whether there are any situations covered by the proposal in which providing lift access would be impracticable (e.g., analogous to the ``problem aircraft'' exempted from the small commuter aircraft lift rule).

The lift rule for small commuter aircraft had a phased-in implementation schedule, varying by size of airport. Because the draft regulatory evaluation for this rulemaking concludes that existing lifts, or lifts being put in place in response to the small commuter aircraft lift rule, will be sufficient to meet the proposed requirements, the

[[Page 46612]]

NPRM proposes an 18-month deadline for using lifts for larger aircraft at all airports. We specifically seek comment on this point.

Regulatory Analyses and Notices

This NPRM does not propose a significant rule under Executive Order 12866 or the Department's Regulatory Policies and Procedures. A regulatory evaluation that examines the projected costs and impacts of the proposal has been placed in the docket. It concludes that incremental costs of the requirement would be negligible, because lifts already in place or required to be in place by existing rules could meet the proposal's requirements.

The Department certifies that this rule, if adopted, would not have a significant economic effect on a substantial number of small entities. The basis for this statement is that the overall national annual costs are not great, and few airline companies operating aircraft of the type covered by the NPRM and commercial service airports could properly be regarded as small entities. Nevertheless, the Department specifically seeks comment on whether there are small entity impacts the Department should consider, and what those impacts are. If comments provide information that there are significant small entity impacts, the Department will provide a regulatory flexibility analysis at the final rule stage. The Department does not believe that there would be sufficient Federalism impacts to warrant the preparation of a Federalism Assessment.

List of Subjects

14 CFR Part 382

Air carriers, Consumer protection, Individuals with disabilities, Reporting and recordkeeping requirements.

49 CFR Part 27

Airports, Civil rights, Individuals with disabilities, Reporting and recordkeeping requirements.

Issued this 18th day of August, 1999, at Washington, DC. Rodney E. Slater, Secretary of Transportation.

For the reasons set forth in the preamble, the Department proposes to amend 14 CFR part 382 and 49 CFR part 27 as follows:

14 CFR PART 382--[AMENDED]

  1. The authority citation for 14 CFR part 382 is revised to read as follows:

    Authority: 49 U.S.C. 41702, 47105, and 41712.

  2. Section 382.39 is proposed to be amended as follows:

    1. Paragraph (a)(2) is proposed to be revised;

    2. Paragraphs (b) and (c) are proposed to be redesignated as paragraphs (c) and (d), respectively, and a new paragraph (b) is proposed to be added. The proposed addition and revision to Sec. 382.39 read as follows:

    Sec. 382.39 Provision of services and equipment.

    * * * * *

    (a) * * *

    (2) Boarding shall be by level-entry loading bridges or accessible passenger lounges, where these means are available. Where these means are unavailable, boarding assistance to commuter aircraft with fewer than 30 seats shall be provided as set forth in Sec. 382.40, and boarding assistance for aircraft with 31 or more seats shall be provided as set forth in paragraph (c) of this section. In no case shall carrier personnel be required to hand-carry a passenger in order to provide boarding assistance (i.e., directly to pick up the passenger's body in the arms of one or more carrier personnel to effect a level change the passenger needs to enter or leave the aircraft). * * * * *

    (b) This paragraph applies to aircraft with a seating capacity of 31 or more passengers, in any situation in which passengers are not boarded by level-entry loading bridges or accessible passenger lounges. In these situations, carriers shall, in cooperation with the airports they serve, provide boarding assistance to individuals with disabilities using mechanical lifts, ramps, or other suitable devices that do not require employees to lift or carry passengers up stairs.

    (1) Each carrier shall negotiate in good faith with the airport operator at each airport concerning the acquisition and use of boarding assistance devices. The carrier(s) and the airport operator shall, by no later than (insert date mine months from the effective date of this section), sign a written agreement allocating responsibility for meeting the boarding assistance requirements of this section between or among the parties. The agreement shall be made available, on request, to representatives of the Department of Transportation.

    (2) The agreement shall provide that all actions necessary to ensure accessible boarding for passengers with disabilities are completed as soon as practicable, but no later than (insert a date 18 months from the effective date of the rule). All air carriers and airport operators involved are jointly responsible for the timely and complete implementation of the agreement.

    (3) Under the agreement, carriers may require that passengers wishing to receive boarding assistance requiring the use of a lift for a flight check in for the flight one hour before the scheduled departure time for the flight. If the passenger checks in after this time, the carrier shall nonetheless provide the boarding assistance by lift if it can do so by making a reasonable effort, without delaying the flight.

    (4) When boarding assistance cannot be provided as required by for reasons beyond the control of the parties to the agreement (e.g., because of mechanical problems with a lift), boarding assistance shall be provided by any available means to which the passenger consents, except hand-carrying as defined in paragraph (a)(2) of this section.

    (5) The agreement shall ensure that all lifts and other accessibility equipment are maintained in proper working condition.

    (6) The training of carrier personnel required by Sec. 382.61 shall include, for those personnel involved in providing boarding assistance, training to proficiency in the use of the boarding assistance equipment used by the carrier and appropriate boarding assistance procedures that safeguard the safety and dignity of passengers. * * * * *

    49 CFR PART 27--[AMENDED]

  3. The authority citation for Part 27 continues to read as follows:

    Authority: Sec. 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794); sec. 16(a) and (d) of the Federal Transit Act of 1964, as amended (49 U.S.C. 5310(a) and (f); sec. 165(b) of the Federal-Aid Highway Act of 1973, as amended (23 U.S.C. 142nt).

  4. In 49 CFR part 27, Sec. 27.72 is proposed to be revised to read as follows:

    Sec. 27.72 Boarding assistance for small aircraft.

    (a) Paragraphs (b)-(e) of this section apply to airports with 10,000 or more annual enplanements.

    (b) Airports shall, in cooperation with carriers serving the airports, provide boarding assistance to individuals with disabilities using mechanical lifts, ramps, or other devices that do not require employees to lift or carry passengers up stairs. Paragraph (c) of this section applies to aircraft with a seating capacity of 19-30 passengers. Paragraph (d) of this section applies to aircraft with a seating capacity of 31 or more passengers.

    [[Page 46613]]

    (c) (1) Each airport operator shall negotiate in good faith with each carrier serving the airport concerning the acquisition and use of boarding assistance devices for aircraft with a seating capacity of 19- 30 passengers. The airport operator and the carrier(s) shall, by no later than September 2, 1997, sign a written agreement allocating responsibility for meeting the boarding assistance requirements of this section between or among the parties. The agreement shall be made available, on request, to representatives of the Department of Transportation.

    (2) The agreement shall provide that all actions necessary to ensure accessible boarding for passengers with disabilities are completed as soon as practicable, but no later than December 2, 1998, at large and medium commercial service hub airports (those with 1,200,000 or more annual enplanements); December 2, 1999, for small commercial service hub airports (those with between 250,000 and 1,199,999 annual enplanements); or December 2, 2000, for non-hub commercial service primary airports (those with between 10,000 and 249,999 annual enplanements) . All air carriers and airport operators involved are jointly responsible for the timely and complete implementation of the agreement.

    (3) Boarding assistance under the agreement is not required in the following situations:

    (i) Access to aircraft with a capacity of fewer than 19 or more than 30 seats;

    (ii) Access to float planes;

    (iii) Access to the following 19-seat capacity aircraft models: the Fairchild Metro, the Jetstream 31, and the Beech 1900 (C and D models);

    (iv) Access to any other 19-seat aircraft model determined by the Department of Transportation to be unsuitable for boarding assistance by lift on the basis of a significant risk of serious damage to the aircraft or the presence of internal barriers that preclude passengers who use a boarding or aisle chair to reach a non-exit row seat.

    (4) When boarding assistance is not required to be provided under paragraph (c)(4) of this section, or cannot be provided as required by paragraphs (b) and (c) of this section for reasons beyond the control of the parties to the agreement (e.g., because of mechanical problems with a lift), boarding assistance shall be provided by any available means to which the passenger consents, except hand-carrying as defined in 14 CFR 382.39(a)(2).

    (5) The agreement shall ensure that all lifts and other accessibility equipment are maintained in proper working condition.

    (d)(1) Each airport operator shall negotiate in good faith with each carrier serving the airport concerning the acquisition and use of boarding assistance devices for aircraft with a seating capacity of 31 or more passengers. The airport operator and the carrier(s) shall, by no later than (a date nine months from the effective date of this section), sign a written agreement allocating responsibility for meeting the boarding assistance requirements of this section between or among the parties. The agreement shall be made available, on request, to representatives of the Department of Transportation.

    (2) The agreement shall provide that all actions necessary to ensure accessible boarding for passengers with disabilities are completed as soon as practicable, but no later than (a date 18 months from the effective date of this section). All air carriers and airport operators involved are jointly responsible for the timely and complete implementation of the agreement.

    (3) When boarding assistance cannot be provided as required by this paragraph for reasons beyond the control of the parties to the agreement (e.g., because of mechanical problems with a lift), boarding assistance shall be provided by any available means to which the passenger consents, except hand-carrying as defined in 14 CFR 382.39(a)(2).

    (4) The agreement shall ensure that all lifts and other accessibility equipment are maintained in proper working condition.

    (e) In the event that airport personnel are involved in providing boarding assistance, the airport shall ensure that they are trained to proficiency in the use of the boarding assistance equipment used at the airport and appropriate boarding assistance procedures that safeguard the safety and dignity of passengers.

    [FR Doc. 99-22210Filed8-25-99; 8:45 am]

    BILLING CODE 4910-62-P

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