Accessible Lavatories on Single-Aisle Aircraft: Part 1, 27-37 [2019-27631]
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Federal Register / Vol. 85, No. 1 / Thursday, January 2, 2020 / Proposed Rules
18, 2018, that have an original airworthiness
certificate or original export certificate of
airworthiness issued on or before the
effective date of this AD: Within 6 months
after the effective date of this AD, do the
actions specified in paragraphs (o)(1) and (2)
of this AD.
(1) Identify the version of the flight control
electronics (FCE) common block point (CBP)
software installed. If the installed version is
not CBP5 or later approved version: Within
6 months after the effective date of this AD,
install CBP5 or later approved version, in
accordance with the Accomplishment
Instructions of Boeing Alert Requirements
Bulletin B787–81205–SB270044–00 RB, Issue
001, dated December 18, 2018. A review of
airplane maintenance records is acceptable in
lieu of this identification requirement, if the
software version can be conclusively
determined from that review.
(2) Identify the version of the DCA system
and MS software installed. If the installed
version is not DCA MS CBP4 or a laterapproved version of DCA MS software:
Within 6 months after the effective date of
this AD, install a new DCA system and MS
software and do a software check, in
accordance with the Accomplishment
Instructions of Boeing Service Bulletin B787–
81205–SB310014, Issue 002, dated June 14,
2017.
(p) Terminating Action for Certain
Requirements of This AD
(1) Except as specified in paragraph (p)(2)
of this AD: Accomplishment of the actions
required by paragraph (n) or (o) of this AD,
as applicable, terminates the requirements of
paragraphs (g) through (m) of this AD.
(2) Accomplishment of the actions required
by paragraph (n) or (o) of this AD, as
applicable, terminates the requirements of
paragraph (k) of this AD for that airplane
only.
(3) After the actions required by paragraph
(n) or (o) of this AD have been accomplished
on all affected airplanes in an operator’s fleet,
and within 6 months after the effective date
of this AD, figure 1 to paragraph (k) of this
AD must be removed from the existing AFM
for the fleet.
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(q) Parts Installation Prohibition
As of the effective date of this AD,
installation on any airplane of FCE CBP
software with a version previous to CBP5 is
prohibited.
(r) Alternative Methods of Compliance
(AMOCs)
(1) The Manager, Seattle ACO Branch,
FAA, has the authority to approve AMOCs
for this AD, if requested using the procedures
found in 14 CFR 39.19. In accordance with
14 CFR 39.19, send your request to your
principal inspector or local Flight Standards
District Office, as appropriate. If sending
information directly to the manager of the
certification office, send it to the attention of
the person identified in paragraph (s)(1) of
this AD. Information may be emailed to: 9ANM-Seattle-ACO-AMOC-Requests@faa.gov.
(2) Before using any approved AMOC,
notify your appropriate principal inspector,
or lacking a principal inspector, the manager
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of the local flight standards district office/
certificate holding district office.
(3) An AMOC that provides an acceptable
level of safety may be used for any repair,
modification, or alteration required by this
AD if it is approved by The Boeing Company
ODA that has been authorized by the
Manager, Seattle ACO Branch, FAA, to make
those findings. To be approved, the repair
method, modification deviation, or alteration
deviation must meet the certification basis of
the airplane, and the approval must
specifically refer to this AD.
(4) AMOCs approved previously for AD
2015–14–07, AD 2016–07–10, and AD 2016–
24–09, are approved as AMOCs for the
corresponding provisions of paragraphs (g)
through (l) of this AD.
(s) Related Information
(1) For more information about this AD,
contact Maureen G. Fallon, Aerospace
Engineer, Systems and Equipment Section,
FAA, Seattle ACO Branch, 2200 South 216th
St., Des Moines, WA 98198; phone and fax:
206–231–3690; email: maureen.g.fallon@
faa.gov.
(2) For service information identified in
this AD, contact Boeing Commercial
Airplanes, Attention: Contractual & Data
Services (C&DS), 2600 Westminster Blvd.,
MC 110–SK57, Seal Beach, CA 90740–5600;
telephone 562–797–1717; internet https://
www.myboeingfleet.com. You may view this
referenced service information at the FAA,
Transport Standards Branch, 2200 South
216th St., Des Moines, WA. For information
on the availability of this material at the
FAA, call 206–231–3195.
Issued in Des Moines, Washington, on
December 17, 2019.
Michael Kaszycki,
Acting Director, System Oversight Division,
Aircraft Certification Service.
[FR Doc. 2019–27928 Filed 12–31–19; 8:45 am]
BILLING CODE 4910–13–P
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
Office of the Secretary (OST),
U.S. Department of Transportation
(DOT).
ACTION: Notice of proposed rulemaking.
AGENCY:
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
SUMMARY:
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27
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),
robert.gorman@dot.gov (email). You
may also contact Blane Workie,
Assistant General Counsel, Office of
Aviation Enforcement and Proceedings,
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Federal Register / Vol. 85, No. 1 / Thursday, January 2, 2020 / Proposed Rules
U.S. Department of Transportation, 1200
New Jersey Ave. SE, Washington, DC
20590, 202–366–9342, 202–366–7152
(fax), blane.workie@dot.gov.
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.
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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.
1 49
2 53
U.S.C. 41705.
FR 23574, 23574 (June 22, 1988).
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The 1990 ACAA rule required twinaisle 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
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 singleaisle aircraft were optional, but not
mandatory.6
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
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.
5 55 FR 8008, 8021 (March 6, 1990).
6 14 CFR 382.63(b).
7 55 FR 8008, 8021.
8 Id.
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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
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
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
During the process of amending Part
382 to apply to foreign carriers, the
Department received many comments
9 Id.
10 See attachment at https://www.regulations.gov/
document?D=DOT-OST-2015-0246-0194.
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).
14 Public Law 106–181, 707(c), 114 Stat. 61, 158
(2000).
15 69 FR 64364.
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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
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.
D. DOT ACCESS Advisory Committee
1. Formation and History of Committee
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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 inflight entertainment and strengthen
accessibility requirements for other inflight communications; (2) whether to
require an accessible lavatory on new
single-aisle aircraft over a certain size;
and (3) whether to amend the definition
16 73 FR 27614, 27625; available at https://
www.transportation.gov/sites/dot.gov/files/docs/
Part%20382-2008_1.pdf.
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).
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.
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of ‘‘service animals’’ that may
accompany passengers with a disability
on a flight.20
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 nonprofit 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.
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
Paralyzed Veterans of America (PVA)
presented survey data showing that for
20 81 FR 20265; see also https://
www.regulations.gov/document?D=DOT-OST-20150246-0092.
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-groundrules.
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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29
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
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.
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.
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.
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
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31 https://www.transportation.gov/sites/dot.gov/
files/docs/P3.Lav_.2.Block_.Bombardier%20
Presentation.v2.2016.07.11.pdf.
32 https://www.transportation.gov/sites/dot.gov/
files/docs/resources/individuals/aviationconsumer-protection/285871/july-meetingminutes.pdf.
33 https://www.airbus.com/content/dam/
corporate-topics/publications/backgrounders/
Backgrounder-Airbus-Commercial-Aircraft-A220Facts-and-Figures-EN.pdf.
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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did raise hygiene concerns about the
dual function of the chair.
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
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 singleaisle 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
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%20
Accessible%20Lav.Position.8.15.16..pdf.
36 https://www.transportation.gov/office-generalcounsel/negotiated-regulations/final-resolutionaccess-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.
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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.
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.
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.
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.
38 The proposed rule text refers to ‘‘all new singleaisle 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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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
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
40 Public
Law 114–190, 130 Stat. 615, § 2108.
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, § 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-significantrulemaking-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.
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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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.
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
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
43 https://www.access-board.gov/.
2019/08/20/2019-17873/advisory-guidelines-foraircraft-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.
45 84 FR 43100, 43101 (August 20, 2019).
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specifications for the OBW provided
that those specifications achieve a level
of accessibility consistent with the
performance standards found in the
Department’s regulations.
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 § 382.63(f), would apply to
lavatories on new aircraft with an FAAcertificated 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 costbeneficial 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
46 Term
44 https://www.federalregister.gov/documents/
31
Sheet 2b.
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-rulemakingprocess-signed-122018.pdf, section 6(e).
47 In
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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.
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.
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.
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
48 See
Term Sheet 2c.
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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49 The
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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.
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.
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
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 § 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.
51 See Term Sheet 2g.
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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 costeffective manner, consistent with the
privacy interests of passengers entering
and using the lavatory.
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 singleaisle 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.
52 See
Term Sheet 2k.
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.
53 Section
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B. Retrofitting
Retrofitting of lavatories is addressed
in proposed § 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.
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C. Training and Information
New proposed training and
information requirements are found in
§ 382.63(h). These requirements largely
reflect the provisions of the Committee’s
Term Sheet. They apply to airlines
operating aircraft with an FAAcertificated 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
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 onboard 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
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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.
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.
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.
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
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.
57 Term Sheet 1(b).
58 Removal of the international symbol is the only
proposed rule that would apply to existing inservice 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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33
used increasingly as a location where
passengers with disabilities may
perform personal functions which
require the disposal of sharps and biowaste. The proposed rule does not
require any specific type of disposal
procedures, however (e.g., a sharps
disposal box installed within the
lavatory).59
D. OBW Standards
The Department’s proposed
performance standards for new OBWs
are found in § 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.
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.
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.
60 See Term Sheet 4A.
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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 standand-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-andpivot. We seek comment on the ways
that an OBW can be best designed to
facilitate forward entry and a stand-andpivot 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.
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
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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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.
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Fmt 4702
Sfmt 4702
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
§ 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),
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Federal Register / Vol. 85, No. 1 / Thursday, January 2, 2020 / Proposed Rules
‘‘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:
lotter on DSKBCFDHB2PROD with PROPOSALS
TABLE 1—COST SUMMARY OF THE LAVATORY ACCESSIBILITY AND OBW PROVISIONS
Discounted at
7 percent
Discounted at
3 percent
Lavatory Accessibility ..................
OBW ............................................
$21,353,264
2,523,364
$36,522,224
2,621,359
$1,832,334
216,531
Not Quantified.
Not Quantified.
Total .............................................
22,876,628
39,143,583
2,048,866
Not Quantified.
14 CFR
Regulatory topic
§ 382.63 ........................................
§ 382.65 ........................................
Total ......................................
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. Nonambulatory 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 § 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
§ 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 § 382.63 are
estimated to be minimal.62
The PRIA also estimated costs for
improvements to the OBW. It is
62 The PRIA refers to the information and training
measures as appearing within § 382.63(f); they now
appear in § 382.63(h). Similarly, the PRIA refers to
lavatory interior improvements as appearing within
§ 382.63(h); they now appear in § 382.63(f).
VerDate Sep<11>2014
16:22 Dec 31, 2019
Jkt 250001
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-thetoilet 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-
PO 00000
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Fmt 4702
Sfmt 4702
Annualized
25-year cost
Benefits
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.
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.
63 See
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14 CFR 399.73.
02JAP1
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Federal Register / Vol. 85, No. 1 / Thursday, January 2, 2020 / Proposed Rules
E. Paperwork Reduction Act
List of Subjects in 14 CFR Part 382
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.
Lavatories; Single-aisle aircraft;
Onboard wheelchairs.
For the reasons discussed in the
preamble, the Department proposes to
amend 14 CFR part 382 as follows:
F. Unfunded Mandates Reform Act
lotter on DSKBCFDHB2PROD with PROPOSALS
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.
16:22 Dec 31, 2019
Jkt 250001
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
2. In § 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:
■
§ 382.63 What are the requirements for
accessible lavatories?
*
The Department has determined that
the requirements of Title II of the
Unfunded Mandates Reform Act of 1995
do not apply to this rulemaking.
VerDate Sep<11>2014
PART 382—NONDISCRIMINATION ON
THE BASIS OF DISABILITY IN AIR
TRAVEL
*
*
*
*
(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
PO 00000
Frm 00014
Fmt 4702
Sfmt 4702
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 handson 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).
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Federal Register / Vol. 85, No. 1 / Thursday, January 2, 2020 / Proposed Rules
(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].
■ 3. In § 382.65, add paragraphs (e), (f),
(g), and (h) as follows:
§ 382.65 What are the requirements
concerning on-board wheelchairs?
lotter on DSKBCFDHB2PROD with PROPOSALS
*
*
*
*
*
(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.
VerDate Sep<11>2014
16:22 Dec 31, 2019
Jkt 250001
(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
§ 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 FAAcertificated 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
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 82
[192A2100DD/AAKC001030/
A0A501010.999900 253G]
RIN 1076–AF51
Procedures for Federal
Acknowledgment of Alaska Native
Entities
Bureau of Indian Affairs,
Interior.
ACTION: Proposed rule.
AGENCY:
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Frm 00015
Fmt 4702
Sfmt 4702
37
This proposed rule would
establish a new part in the Code of
Federal Regulations to address how
Alaska Native entities may become
acknowledged as an Indian Tribe
pursuant to the Alaska Amendment to
the Indian Reorganization Act. This
proposed rule would not affect the
status of Tribes that are already
federally recognized.
DATES: Comments are due by March 2,
2020. Consultation and public meetings
will be held January 28 and 30, and
February 6, 2020 (see section IV of this
preamble for additional information).
ADDRESSES: You may send comments,
identified by RIN number 1076–AF51
by any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for sending comments.
• Email: consultation@bia.gov.
Include RIN number 1076–AF51 in the
subject line of the message.
• Mail or Hand-Delivery/Courier:
Office of Regulatory Affairs &
Collaborative Action—Indian Affairs
(RACA), U.S. Department of the Interior,
1849 C Street NW, Mail Stop 4660,
Washington, DC 20240.
All submissions received must
include the Regulatory Information
Number (RIN) for this rulemaking (RIN
1076–AF51). All comments received
will be posted without change to https://
www.regulations.gov, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Appel, Director, Office of
Regulatory Affairs & Collaborative
Action, (202) 273–4680;
elizabeth.appel@bia.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Executive Summary
II. Background
A. Alaska IRA
B. Implementation of Alaska IRA
C. Tribal Input on the Department’s
Implementation of the Alaska IRA
1. Need for an Alaska-Specific Regulatory
Process
2. No Effect on the Status of Tribes Who
Are Currently Federally Recognized
3. Consideration of Pending Petitions
III. Summary of Proposed Rule
A. Subpart A—General Provisions
1. Definitions
2. Scope and Applicability
B. Subpart B—Criteria for Federal
Acknowledgment
1. Evaluation of the Mandatory Criteria
2. Criteria for Federal Acknowledgment
C. Subpart C—Process for Federal
Acknowledgment
IV. Tribal Consultation and Public Meeting
Sessions
V. Procedural Requirements
A. Regulatory Planning and Review (E.O.
12866)
E:\FR\FM\02JAP1.SGM
02JAP1
Agencies
[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\1\ 49 U.S.C. 41705.
\2\ 53 FR 23574, 23574 (June 22, 1988).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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
[[Page 29]]
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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\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%.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\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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[[Page 30]]
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
[[Page 31]]
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\48\ See Term Sheet 2c.
---------------------------------------------------------------------------
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.
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\57\ Term Sheet 1(b).
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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.
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\60\ See Term Sheet 4A.
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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