Accessible Lavatories on Single-Aisle Aircraft, 50020-50036 [2023-16178]
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Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Rules and Regulations
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
Authority: 49 U.S.C. 106(f), 106(g); 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
1. The authority citation for 14 CFR
part 71 continues to read as follows:
■
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of FAA Order JO 7400.11G,
■
Airspace Designations and Reporting
Points, dated August 19, 2022, and
effective September 15, 2022, is
amended as follows:
Paragraph 6011 United States Area
Navigation Routes
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Issued in Washington, DC, on July 26,
2023.
Karen L. Chiodini,
Acting Manager, Rules and Regulation Group.
[FR Doc. 2023–16208 Filed 7–31–23; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 382
[Docket No. DOT–OST–2021–0137]
RIN No. 2105–AE89
Accessible Lavatories on Single-Aisle
Aircraft
Office of the Secretary (OST),
U.S. Department of Transportation
(DOT).
ACTION: Final rule.
AGENCY:
The U.S. Department of
Transportation (Department or DOT) is
issuing a final rule to amend the
Department’s Air Carrier Access Act
(ACAA) regulation to improve the
accessibility of lavatories on single-aisle
aircraft. This final rule is intended to
ensure that our air transportation system
is safe and accessible to individuals
with disabilities.
DATES: This rule is effective October 2,
2023.
FOR FURTHER INFORMATION CONTACT:
Robert Gorman, Senior Trial Attorney,
Office of Aviation Consumer Protection,
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 Consumer Protection,
Department of Transportation, 1200
New Jersey Ave. SE, Washington, DC
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SUMMARY:
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VOR/DME
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62°47′04.52″
62°05′37.50″
62°03′33.30″
61°34′53.76″
61°34′17.31″
61°25′08.81″
61°13′51.69″
61°05′54.89″
20590, 202–366–9342, 202–366–7152
(fax), blane.workie@dot.gov.
SUPPLEMENTARY INFORMATION:
1. Purpose of Regulatory Action
The Department is committed to
ensuring that our air transportation
system is safe and accessible for all.
This includes taking necessary action to
remove transportation barriers that exist
for individuals with disabilities. Like all
individuals, those with disabilities rely
on transportation for all aspects of their
lives. Transportation connects
individuals to family and friends, to
jobs and to vital services, and it opens
the door to opportunity.
While accessible lavatories have been
required on twin-aisle aircraft for
decades, until now, there has been no
requirement that airlines provide
accessible lavatories on single-aisle
aircraft. However, single-aisle aircraft
are increasingly used by airlines for
long-haul flights because the fuel
efficiency and range of the aircraft have
improved. The percentage of flights
between 1,500 and 3,000 miles flown by
single-aisle aircraft increased from less
than 40 percent in 1991 to 86 percent
in 2021.1 These flights can last four or
more hours.
The inability to safely access and use
the lavatory on long flights can impact
the dignity of passengers with
disabilities and deter them from
traveling by air, limiting their
independence and freedom to travel.
This final rule addresses a human rights
issue and promotes freedom to travel for
people with disabilities. It is an
unfortunate reality that today, many air
travelers with disabilities, knowing that
they will not be able to use the lavatory
during a flight, may dehydrate
themselves or even withhold bodily
functions so that they do not need to
1 TS T–100 All Segment data, retrieved November
2022.
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164°29′15.12″
163°41′00.03″
163°17′07.68″
159°32′34.95″
158°25′46.86″
157°15′46.63″
156°14′37.32″
155°38′04.49″
W).
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urinate. These actions can cause adverse
health effects, including increased
chances of urinary tract infections.
Other passengers may use adult diapers
or catheters, which they may find
degrading and uncomfortable. Some
wheelchair users avoid flying altogether.
For example, a recent survey conducted
by Paralyzed Veterans of America (PVA)
and 11 other veterans’ and disability
advocacy organizations found that 56%
of respondents reported that
inaccessible lavatories were reason
enough to choose not to fly unless
absolutely necessary.2 These are
conditions that passengers without
disabilities would justifiably consider
intolerable.
Regulation is necessary because the
private marketplace has not met this
basic need for accessible lavatories.
While a relatively small number of
single-aisle aircraft do have lavatories
that approximate the size and
functionality of accessible twin-aisle
aircraft lavatories, the vast majority of
aircraft lavatories are too small to
accommodate on-board wheelchairs or
attendants. While accessible lavatory
options do exist in the marketplace,
airlines have largely chosen to forgo
them in favor of an additional row of
seats or extra galley space. Existing
lavatories often lack accessible features
and a safe and reliable means of
accessing those lavatories using an onboard wheelchair. Information regarding
the accessible features of lavatories is
difficult to obtain.
We expect this rule to directly benefit
millions of individuals with mobility
impairments who cannot independently
access the lavatory as a result of
neuromuscular injury, disease, or
2 Comment of PVA, available at https://
www.regulations.gov/comment/DOT-OST-20210137-0350, Exhibit A. PVA represents over 16,000
veterans of the U.S. armed forces with spinal cord
injury or disease. See https://pva.org/find-support/
membership/.
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Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Rules and Regulations
weakness. The rule will also benefit
individuals with visual or other
impairments who can access the
lavatory but need accessible features
within the lavatory. We also anticipate
that the rule will indirectly benefit
passengers of size and families with
small children.
provide nondiscriminatory service to
individuals with disabilities.
2. Statutory Authority
The Air Carrier Access Act (ACAA),
49 U.S.C. 41705, prohibits
discrimination in airline service based
on disability. When enacted in 1986, the
ACAA applied only to U.S. air carriers.
On April 5, 2000, the Wendell H. Ford
Aviation Investment and Reform Act for
the 21st Century amended the ACAA to
include foreign carriers. The ACAA,
while prohibiting discrimination by
U.S. and foreign air carriers in air
transportation against qualified
individuals with disabilities, does not
specify how carriers must act to avoid
such discrimination. The statute
similarly does not specify how the
Department should regulate with
respect to these issues. In addition to
the ACAA, the Department’s authority
to regulate nondiscrimination in airline
service on the basis of disability is based
in the Department’s 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 (at 14
CFR part 382) that require carriers to
3. Summary of Rulemaking Activities
In 2016, the Department established
the Advisory Committee on Accessible
Air Transportation (ACCESS Advisory
Committee or Committee) to negotiate
and develop proposed regulations on
various issues, including accessible
lavatories on single-aisle aircraft.3 The
Committee consisted of stakeholders
including disability rights advocates,
airlines, flight attendants, aircraft
manufacturers, and the Department
itself. On November 22, 2016, the
Committee reached consensus on
recommendations for new regulatory
proposals to improve the accessibility of
lavatories on single-aisle aircraft.4 The
agreement included recommendations
for both short-term and long-term
accessibility improvements. During the
negotiated rulemaking process, the
Department indicated that if the
stakeholders reached consensus, the
Department would act in good faith to
propose rules reflecting that consensus.
In June 2019, the Department
announced that the most appropriate
course of action was to conduct two
separate accessible lavatory
rulemakings: one for short-term
improvements, and one for long-term
improvements. On January 2, 2020, the
Department published a notice of
proposed rulemaking (NPRM) relating to
short-term improvements (the Part 1
NPRM).5 In that rulemaking, the
Department proposed improvements to
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lavatory interiors, additional training
and information procedures relating to
lavatory accessibility, and
improvements to the aircraft’s on-board
wheelchair (OBW), but without
requiring airlines to expand the size of
the lavatory itself. The comment period
to the Part 1 NPRM closed on March 2,
2020.
On December 16, 2021, the
Department and the Architectural
Transportation Barriers and Compliance
Board (Access Board) held a joint public
meeting to gather additional information
regarding proposed improvements to the
OBW. In connection with this public
meeting, the Department reopened the
comment period for the Part 1 NPRM
from December 16, 2021, to January 17,
2022.
On March 28, 2022, the Department
issued an NPRM regarding long-term
accessibility improvements that would
require airlines to install larger
lavatories on certain single-aisle aircraft
to permit a qualified individual with a
disability to perform a seated
independent (unassisted) and
dependent (assisted) transfer from an
OBW to and from the toilet (the Part 2
NPRM).6 In that rulemaking, the
Department expressed its intention to
issue one final rule regarding accessible
lavatories that would address the issues
in both the Part 1 NPRM and the Part
2 NPRM. The comment period to the
Part 2 NPRM closed on May 28, 2022.
4. Summary of the Major Provisions
ESTIMATED COSTS OF ON-CONDITION ACTIONS
Subject
Final Rule
Lavatory Interiors .........
Lavatory must have grab bars, accessible faucets and controls, accessible call buttons and door
locks, minimum obstruction to the passage of an on-board wheelchair (OBW), toe clearance,
and an available visual barrier for privacy. Retrofitting not required, but accessibility features are
required if lavatory is replaced.
OBW must facilitate safe transfer to and from the aircraft seat, have locking wheels, and have
adequate padding, supports and restraints..
OBW must permit partial entry into lavatory in forward position to permit transfer from OBW to toilet.
OBW must be maneuverable into the lavatory so as to completely close the lavatory door; if this
is not possible in the short term when lavatories are not required to be expanded beyond current measures, airlines must provide visual barrier on request.
Airlines must stow OBW in any safe available stowage space ..........................................................
Annual hands-on training required regarding OBW use, stowage, and assisting passengers to/
from the lavatory on the OBW.
Information required within aircraft and on airline web sites regarding accessibility features of lavatory.
Symbol must be removed from lavatories that cannot accommodate an assisted independent
transfer from OBW to toilet seat. Symbol must be applied to lavatories that can do so.
OBW improvements ....
Training and Information.
International Symbol of
Accessibility.
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Sharps and bio-waste ..
3 81
Airlines must develop procedures for handling sharps and bio-waste and must inform passengers
of those procedures on request.
FR 26178 (May 2, 2016).
4 https://www.transportation.gov/office-general-
counsel/negotiated-regulations/final-resolutionaccess-committee.
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5 85 FR 27 (January 2, 2020), available at https://
www.federalregister.gov/documents/2020/01/02/
2019-27631/accessible-lavatories-on-single-aisleaircraft-part-1.
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New single-aisle aircraft with 125+
seats, delivered 3 years after effective date of the rule.
Operators of single-aisle aircraft with
125+ seats, 3 years after effective
date of the rule
Operators of single-aisle aircraft with
60+ seats, 3 years after effective
date of the rule
Operators of single-aisle aircraft with
60+ seats, 3 years after effective
date of the rule
Operators of single-aisle aircraft with
60+ seats, 3 years after effective
date of the rule
6 87 FR 17215 (March 28, 2022), available at
https://www.federalregister.gov/documents/2022/
03/28/2022-05869/accessible-lavatories-on-singleaisle-aircraft-part-2.
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Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Rules and Regulations
ESTIMATED COSTS OF ON-CONDITION ACTIONS—Continued
Subject
Final Rule
Applicability
Expanded lavatory size
Lavatory must permit a person with a disability and an attendant, both equivalent in size to a 95th
percentile male, to approach, enter, maneuver within as necessary to use all lavatory facilities,
and leave, by means of the OBW, in a closed space that affords privacy equivalent to that afforded to ambulatory users.
New single-aisle aircraft with 125+
seats, ordered 10 years or delivered
12 years after effective date, or on
new type-certificated aircraft designs
filed 1 year after effective date.
Discussion
I. Short-Term Improvements
A. Overview
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1. NPRM and Comments
The Part 1 NPRM addressed
accessibility improvements that could
be implemented on a relatively shortterm basis that did not involve
expanding the size of the lavatory itself.
These improvements included
accessible lavatory interiors,
information and training requirements,
and improvements to the aircraft’s
OBW. In general, the NPRM proposed
performance standards rather than
design standards.7 The Department also
indicated that it was considering
whether to prohibit the floor
dimensions (footprint) of lavatories from
being further reduced from current
measurements, on the ground that
further reduction would adversely
impact accessibility.
The Department received 336
comments to the Part 1 NPRM during
the original comment period (January 2–
March 2, 2020). The majority of
comments were from individuals. All
individual commenters either expressed
support for the rule, or expressed the
view that lavatories should be larger, or
both. Broadly speaking, disability
advocates expressed a preference for
design standards over performance
standards, observing that design
standards are used for Amtrak and
commuter rail. They supported the
proposal that lavatory footprints should
not be reduced beyond current
measurements. They generally
supported the information and training
requirements. Airlines supported the
7 In general, performance standards describe a
function that should be met, but leave flexibility in
how to meet that standard. Design standards
describe a function with greater technical
specificity but may, as a result, limit the ways that
such a standard could be met. Performance
standards are consistent with Executive Order
(E.O.) 12866, section 1(8) (‘‘Each agency . . . shall,
to the extent feasible, specify performance
objectives, rather than specifying the behavior or
manner of compliance that regulated entities must
adopt.’’). The Part 1 NPRM referenced DOT Order
2100.6 (2018), which provided guidance regarding
its own rulemaking procedures, including a
preference for performance standards. While the
Department has repealed Order 2100.6, the
adoption of performance standards remains
consistent with E.O. 12866.
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Department’s proposed improvements
to lavatory interiors, including the
adoption of performance standards.
They also supported the Department’s
proposals for information, signage, and
procedures for disposing of sharps (such
as needles and syringes) and bio-waste
(defined as any waste containing
infectious materials or potentially
infectious substances). However, they
opposed the Department’s OBW
proposal in its entirety, arguing that the
Department failed to adequately consult
with stakeholders and failed to
adequately consider safety. They also
opposed the position that lavatory
footprints must not be reduced from
current measurements. Aircraft
manufacturers (Airbus and Boeing)
generally supported the Part 1 NPRM.
Airbus generally commented that the
proposals were feasible from an
engineering perspective. Boeing
supported the Department’s view that at
least one lavatory should not be reduced
from existing measurements and
supported the use of performance
standards.
2. OBW Standards—Public Meeting and
Comment
As noted above, the Department and
the Access Board held a joint public
meeting to solicit input from
stakeholders regarding OBW standards.8
The Department indicated that the
meeting was intended to satisfy the
consultation provisions of the
negotiated rulemaking with respect to
OBW standards.9 The Department
specifically solicited comment from
disability advocates, airlines, and
aircraft manufacturers regarding all
aspects of OBW design, including but
not limited to costs, benefits, safety
of the meeting are available at https://
www.regulations.gov/document/DOT-OST-20190180-0363.
9 Specifically, the Access Advisory Committee
agreed that the new OBW standards would apply
to aircraft with FAA-certificated seating capacity of
125 seats or more, and that the OBW would: (1)
permit passage in the aircraft aisle; (2) fit within
available stowage space; and (3) not require
modification to lavatory interiors. The stakeholders
further agreed that DOT must ‘‘consult with
advocates, airlines, aircraft manufacturers,
manufacturers of OBW, flight attendant
association(s) and other stakeholders in developing
these standards,’’ and include the new standards in
its NPRM.
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considerations, and stowage. The
Department also made significant efforts
to elicit data and comment from OBW
manufacturers themselves, with no
success; OBW manufacturers did not
participate in the meeting or file
comments. During the reopened
comment period, the Department
received a total of 12 comments from
individuals and stakeholders.10 We will
discuss the details of this meeting and
stakeholder comments in greater detail
below.
B. Section-by-Section Analysis
1. Improvements to Existing Lavatory
Interiors
NPRM and Comments
The Department proposed that grab
bars be installed and positioned as
required to meet the needs of
individuals with disabilities. The
proposed rule did not include a specific
weight-support minimum threshold
(e.g., 250 pounds). In keeping with the
Department’s preference for
performance standards, we indicated
that a specific weight threshold would
be unduly prescriptive, and that grab
bars must necessarily support
significant weight in order to adequately
meet the needs of individuals with
disabilities. The Department sought
comment on whether this general
performance standard provides
sufficient guidance to airlines and
lavatory manufacturers. The Department
sought comment on whether a weightsupport minimum threshold is
necessary, and if so, what that threshold
would be. Airlines for America (A4A)
and the International Air Transport
Association (IATA) 11 supported the
10 PVA, A4A/IATA, the Regional Airline
Association (RAA), Spirit Airlines, Boeing, Airbus,
the Transport Workers Union of America, and five
individuals. PVA’s letter was co-signed by All
Wheels Up, the Christopher & Dana Reeve
Foundation, Cure SMA, the Disability Rights
Education & Defense Fund (DREDF), the Epilepsy
Foundation, Hand in Hand: The Domestic
Employers Network, the Health Equity
Collaborative, the Muscular Dystrophy Association
(MDA), the National Council on Independent Living
(NCIL), the National Disability Rights Network
(NDRN), and the United Spinal Association (United
Spinal).
11 A4A is a trade association representing U.S.
airlines. IATA is a trade association representing
foreign airlines.
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proposal and asked the Department to
clarify in guidance or in the preamble
that airlines may comply with the
performance standard by reference to
other Federal standards, such as
Americans with Disabilities Act (ADA)
standards. Boeing supported the
Department’s use of performance
standards throughout the Part 1 NPRM.
Next, the Department proposed 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
proposed 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.
Here, A4A and IATA asked the
Department to consider the increased
chance of wasted water.
Next, the Department proposed that
attendant call buttons and door locks
must be accessible to an individual
seated in the lavatory. We sought
comment on whether to further define
‘‘accessible’’ with respect to call buttons
and door locks. For example, we sought
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. On this topic, the
Consortium for Constituents with
Disabilities (CCD) 12 and the Ability
Center of Greater Toledo urged the
Department to require that buttons and
door controls be marked to assist
passengers with visual disabilities by
using braille, large font, contrasting
colors, and embossed symbols.
Next, the Department proposed that
lavatory controls and dispensers must
be discernible through the sense of
touch, and that operable parts of the
lavatory must be operable with one
hand and not require tight pinching,
grasping, or twisting of the wrist. In the
preamble to the proposed rule, we noted
that such requirements would apply if
those accessible operable parts are
reasonably available and certificated for
the applicable aircraft type. We sought
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
12 CCD is a coalition of disability advocacy
organizations including but not limited to the
American Council of the Blind, the American
Federation of the Blind, and the DREDF.
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controls. The Ability Center of Greater
Toledo indicated that if automatic
faucets are not available, lever faucet
handles should be used as opposed to
knobs so that the faucet is operable with
one hand and does not require tight
pinching. A4A and IATA urged the
Department to state in the regulatory
text, rather than the preamble, that such
requirements would apply if those
accessible operable parts are reasonably
available and certificated for the
applicable aircraft type. They indicated
that they did not want to be in the
position of filing ‘‘waivers’’ to establish
that such parts are not available.
Next, the Department proposed to
require the lavatory door sill to provide
minimum obstruction for the passage of
an OBW, consistent with applicable
safety regulations. The Department
recognized that door sills must prevent
the spillage of water into the aircraft
cabin. The provision was intended to
promote accessibility without
compromising safety. We sought
comment on whether the term
‘‘minimum obstruction’’ should be
further defined and if so, what that
definition should be. The comments
that we received on this issue supported
the proposed rule as written.
Next, recognizing that adequate toe
clearance is necessary to permit the
OBW to maneuver into and out of the
lavatory, the Department proposed to
require airlines not to reduce toe
clearance below the current
measurements of the lavatory. The
Department sought comment on this
proposed provision and on whether the
term ‘‘toe clearance’’ should be
specifically defined. Here, the Open
Doors Organization remarked that toe
clearance should be clearly identified,
‘‘with minimum measurements
determined by industry experts.’’
Airlines supported the provision as
written. Boeing suggested that the rule
be amended to provide that ‘‘toe
clearance must not be reduced from
current measurements applicable to the
selected lavatory existing design.’’
Airbus suggested that ‘‘alternatively, toe
clearance reduction can be compensated
by design measures to achieve
equivalent performance by wheelchair
users.’’
Finally, the Department proposed that
airlines must 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. We sought comment
on the means by which this proposed
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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. One disability
advocate (Christopher Wood, of Flying
Disabled) remarked that a curtain would
be an inappropriate visual barrier, and
that the barrier should be rigid and
lockable. In contrast, Boeing urged the
Department to clarify that an opaque
curtain would be a barrier that provides
‘‘substantially equivalent’’ privacy. A4A
and IATA commented that the
Department should confirm or clarify
that the barrier must provide
‘‘substantially equivalent’’ privacy only
in the visual sense. They remarked that
DOT should clarify that airlines have
flexibility to choose the best barrier for
their aircraft, and the barrier does not
have to be permanent or physically
attached to the aircraft. They also
commented that the barrier requirement
should only apply to aft-facing
lavatories or the SpaceFlex models on
Airbus A320 aircraft because barriers on
mid or forward lavatories pose safety
and security hazards. Spirit asked the
Department to clarify that airlines
should not be required to change aircraft
interiors to accommodate a barrier.
Spirit also stated that airlines should be
deemed compliant if they use all
reasonable efforts to put up an
appropriate barrier but cannot.
The Department proposed that
lavatories on new aircraft with an FAAcertificated maximum capacity of 125
seats or more should have these
accessible features. The Department
expressed 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 sought comment on this
issue.
PVA 13 urged the Department to ‘‘fully
consider’’ requiring improved lavatory
interiors on smaller aircraft. Open Doors
and the Ability Center of Greater Toledo
commented that these requirements
should apply to lavatories on aircraft
with a capacity of 60 or more, because
the improvements do not require
expanding the footprint of the lavatory
itself. Airlines supported the proposed
rule as written, with IATA asking the
13 PVA’s comment to the Part 1 NPRM was
cosigned by Access Living of Metropolitan Chicago,
American Association of People with Disabilities,
Autistic Self Advocacy Network, Arc of the United
States, Bazelon Center for Mental Health Law,
Christopher and Dana Reeve Foundation, the
DREDF, Epilepsy Foundation, MDA, NCIL, NDRN,
National Multiple Sclerosis Society, and United
Spinal.
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Department to clarify that the rule
applies to newly manufactured aircraft,
rather than existing aircraft that are
newly acquired by the carrier.
DOT Response
After carefully considering the
comments, the Department has decided
to adopt requirements for lavatory
interiors mostly as proposed. With
respect to grab bars, the rule text
provides that they must be ‘‘provided
and positioned as required to meet the
needs of individuals with disabilities.’’
Complying with ADA grab bar standards
would be an acceptable way to comply
with this provision.
With respect to the provision that
‘‘attendant call buttons and door locks
must be accessible to an individual
seated in the lavatory,’’ we agree with
CCD’s comment that these elements
must be readily usable by passengers
with visual disabilities. While the rule
does not specifically prescribe how
airlines must comply with this
provision, we agree that features such as
braille, large font, contrasting colors,
and embossed symbols are all available
means of compliance.
With respect to the provision that
‘‘lavatory controls and dispensers must
be discernible through the sense of
touch, and that operable parts of the
lavatory must be operable with one
hand and not require tight pinching,
grasping, or twisting of the wrist,’’ we
agree with airlines’ request that they
should not be held responsible for
obtaining lavatory controls and
dispensers that meet those standards if
those accessible operable parts are not
reasonably available and certificated for
the applicable aircraft type. The
Department specifies in the rule text
that an airline is not responsible for
acquiring such lavatory controls and
dispensers so long as an airline makes
reasonable efforts to purchase such
items and informs the Department of the
unavailability despite the airline’s
reasonable efforts. In these situations,
the Department requires airlines to
purchase lavatory controls and
dispensers that comply with as many
requirements as set forth. For example,
as the Ability Center of Greater Toledo
noted, if automatic faucets are not
available, lever faucet handles should be
purchased as opposed to knobs so that
the faucet is operable with one hand.
We have adopted, as proposed, the
requirement that toe clearance not be
reduced below current measurements.
We have determined that it is not
necessary to require that toe clearance
should be set with minimum
measurements determined by industry
experts, because a performance-standard
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approach still ensures that the OBW is
able to maneuver into and out of the
lavatory while providing flexibility to
airlines in how this is done. The
purpose of adequate toe clearance is to
permit the passenger to access the
lavatory by means of the OBW (for
example, partial entry of the OBW in a
forward-facing position to facilitate a
stand-and-pivot maneuver).14 Airlines
may or may not find it necessary to
increase toe clearance within the
interior of the lavatory to meet this
OBW performance standard, depending
on the design of their lavatories and
OBWs. However, we prohibit airlines
from reducing existing toe clearance to
prevent reduction in accessibility.
Next, we will adopt as written the
proposed rule text relating to the visual
barrier. The text states that ‘‘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.’’ The barrier does
not need to be permanent or physically
attached to the aircraft to afford that
level of privacy. The term ‘‘visual
barrier’’ adequately indicates that the
privacy is of a visual nature. In sum, we
believe that the proposed rule text
provides sufficient flexibility for airlines
to provide the necessary privacy
without compromising safety. We do,
however, clarify in rule text that visual
barriers are only appropriate as a shortterm accessibility improvement. They
will not be an appropriate means of
providing privacy for the larger
lavatories that will be required in the
longer term.
Finally, we remain of the view that
changes to lavatory interiors should be
provided on new single-aisle aircraft
with an FAA-certificated maximum
seating capacity of 125 or more, because
such aircraft tend to operate longer
flights where the need for a lavatory
access is greatest. As the Regulatory
Impact Analysis explains, single-aisle
aircraft with at least 125 seats are used
for most domestic flights in the United
States (67% in 2021) and are
14 See Comment of ACCESS Advisory Committee
member Katharine Hunter-Zaworski, Oregon State
University, at 3 (‘‘Toe clearance measurements are
dependent on the design of the OBW. Prior design
work has clearly shown that increasing the toe
clearance under cabinets increases the overall
accessibility of the lavatory by increasing
maneuvering space. The height of the footrest on
OBW is dependent on the design of the OBW. The
fact that both the OBW and lavatory design affect
toe clearance illustrates the need to consider the
OBW and lavatory as a system when establishing
regulatory requirements on either one.’’)
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increasingly used for longer flights due
to improvements in fuel efficiency and
range. In response to IATA’s comment,
we believe that the rule text already
adequately conveys that the rule applies
to newly manufactured aircraft
delivered three years after the effective
date of the final rule, rather than
existing aircraft that are newly acquired
by an airline.
2. Retrofitting
NPRM and Comments
The Department proposed that
retrofitting of lavatories on aircraft
currently in service would not be
required; however, if an airline replaces
a lavatory three years or more after the
effective date of the rule, airlines would
be required to install a lavatory that
meets the new requirements. Under this
proposal, ‘‘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.
A4A and IATA suggested that DOT
clarify in the preamble to the final rule
that to trigger the new compliant
lavatory, airlines must totally replace
the lavatory shell, not only replace
limited components. Boeing suggested
that the Department clarify that
retrofitting would not be required for
‘‘any other action that results in
returning the same lavatory part number
or lavatory with the same design intent
into service.’’ Boeing reasoned that
‘‘there may be instances where, during
a heavy maintenance check, a lavatory
is removed and must be replaced with
a new lavatory of the same part number
or design intent.’’
DOT Response
We have decided to adopt the final
rule as proposed. The text provides that
‘‘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.’’ In our view, the regulatory
text adequately explains what
constitutes a replacement lavatory that
triggers installation of a compliant
lavatory.15 We reject Boeing’s
15 We also note that this retrofitting provision,
which requires retrofitting on a lavatory-by-lavatory
basis rather than a component-by-component basis,
is consistent with prior law. See now-repealed
section 382.63(c) (‘‘You are not required to retrofit
cabin interiors of existing aircraft to comply with
the requirements of this section. However, if you
replace a lavatory on an aircraft with more than one
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suggestion that retrofitting is not
required if the airline wishes to replace
an existing lavatory with a new lavatory
of the same part number or design
intent. To the contrary, the Department
is of the view that this is the type of
replacement where the airline would be
required to install a compliant lavatory.
3. Training
NPRM and Comments
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The Department proposed training
and information requirements that
would 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. These
provisions would apply three years after
the effective date of the final rule.
Specifically, the Department proposed
to require airlines to train flight
attendants to proficiency on proper
procedures for assisting qualified
individuals with disabilities to and from
the lavatory from the aircraft seat.16
Such training would include annual
hands-on training on the retrieval,
assembly, stowage, and use of the
aircraft’s OBW, and training regarding
the accessibility features of the lavatory.
The Department sought comment on
whether annual training is necessary, or
whether a different frequency of training
would be more appropriate.
Stakeholders generally supported this
proposal. PVA contended that the rule
should include training on ‘‘any
assembly or modifications to
accessibility features’’ of accessible
lavatories.17 PVA reasoned that certain
lavatories, such as the SpaceFlex
lavatory installed on certain Airbus
aircraft, require flight attendants to
remove a partition to create a larger
lavatory space. A4A supported the rule
as written without the phrase suggested
by PVA. A4A also stated that DOT
should consider hands-on training on a
phased-in schedule, combined with
online/video training. A4A
recommended that DOT clarify exactly
what constitutes hands-on training of
aisle, you must replace it with an accessible
lavatory.’’)
16 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).
17 This phrase was included in the original Term
Sheet reflecting the stakeholders’ agreement. In the
Part 1 NPRM, DOT declined to include this phrase.
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interior lavatory features. A4A also
argued that it is not feasible to provide
hands-on training for retrieval and
stowage of OBWs on every aircraft type,
so the training should only address
following instructions on how to stow
and retrieve any type of OBW. Finally,
A4A asserted its belief that DOT has not
conducted a complete analysis of the
costs of hands-on training, but A4A did
not supply any such data to assist the
Department’s analysis. IATA indicated
that DOT should clarify specifically
whether contractor employees are
included, or instead clarify that the rule
only applies to flight attendants. IATA
expressed the view that annual handson training is onerous, and that DOT did
not adequately consider the costs of
training and constructing lavatory
mockups. Spirit expressed safety
concerns to the extent that the rule
requires flight attendants to lift
passengers out of their seats, because
many contracts limit flight attendants
from lifting more than 50 pounds.
Responses to these comments pertaining
to the economic analysis can be found
in the RIA.
At the OBW public meeting held in
December 2021, stakeholders discussed
whether to clarify that the training
requirements should include the
‘‘transfer features’’ of the OBW. In
supplemental comments, A4A and
IATA indicated that they supported this
amendment. RAA, representing regional
airlines, asked the Department to clarify
that staff must only be trained with
respect to each airline’s operational
environment.
DOT Response
After review of the comments, we are
adopting training requirements largely
as proposed. In our view, annual handson training is necessary and appropriate
with respect to any OBW that the flight
attendant may be required to retrieve,
use, and stow. We are also persuaded by
PVA’s comment to specifically include
training on ‘‘any assembly or
modifications to accessibility features’’
of a lavatory. Such an addition would
make it clear that airlines are required
to provide hands-on training with
respect to elements such as the movable
partition of a SpaceFlex lavatory,
because such a partition would be an
‘‘accessibility feature’’ of the lavatory.
Also, the training requirements apply
only to flight attendants rather than offaircraft contractors because flight
attendants would be the staff that assist
passengers in flight to access the
lavatory.
We agree with the stakeholders’
suggestion to clarify that training must
include the ‘‘transfer features’’ of the
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OBW. In response to Spirit’s comment,
we note that while the rule would
require flight attendants to assist
passengers in transferring to and from
the OBW, and maneuvering the OBW to
and from the lavatory, it does not
necessarily require staff to lift
passengers. In other words, flight
attendants are required to assist the
person with a disability to transfer to
the aisle chair as best as they can but
may not be able to physically lift or
carry the person even with the use of a
sliding board. We have not amended the
rule text to clarify that staff must only
be trained with respect to each airline’s
operational environment, because we
believe that the rule is already
sufficiently clear on that point.
4. Information
NPRM and Comments
The Department proposed to require
airlines to provide information, on
request, to qualified individuals with a
disability or persons making inquiries
on their behalf concerning the
accessibility of aircraft lavatories. We
proposed that 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. We stated
that the intent of this proposal 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.
PVA urged the Department to require
that this information be ‘‘affirmatively
sent’’ to anyone who self-identifies as
using a mobility device or a service
animal. In response to the Part 2 NPRM,
NDRN noted that many airlines with
relatively accessible lavatories in their
fleet (such as the Airbus SpaceFlex) do
not make clear to passengers whether
their specific flight actually includes
such a lavatory. RAA, representing
regional carriers, urged the Department
to reconsider the website requirement.
RAA explained that the vast majority of
its airline members are operating
carriers that do not market flights or sell
tickets. RAA explained that its members
operate flights through agreements with
larger mainline partners (marketing
carriers) who are responsible for
providing flight information to the
public. RAA contended that because the
traveling public rarely visits RAA
members’ websites, the more
appropriate rule would be to apply the
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information requirements to marketing
carriers.
have amended the final rule
accordingly.
DOT Response
On further review of this provision,
and after reviewing the comments, we
believe it is appropriate to clarify the
Department’s intent with respect to
information on accessibility of aircraft
lavatories. First, rather than broadly
requiring airlines to provide information
regarding ‘‘the accessibility of aircraft
lavatories,’’ the final rule specifies that
the information must include, at a
minimum, information about the
accessibility features of aircraft
lavatories that are set forth in § 382.63(f)
(relating to lavatory interiors). This
change is consistent with the proposed
requirement that the information must
include picture diagrams of accessibility
features in the lavatory and the location
and usage of all controls and dispensers.
We also note that, consistent with the
current requirements of part 382, this
information must be flight-specific to
the extent possible. Specifically, a
different provision of part 382 states
that carriers must provide, on request,
certain information ‘‘concerning the
accessibility of the aircraft expected to
make a particular flight,’’ including
‘‘whether the aircraft has an accessible
lavatory.’’ 18 Under current rules, that
information ‘‘must be specific to the
aircraft you [airlines] expect to use for
the flight unless it is unfeasible for you
to do so (e.g., because unpredictable
circumstances such as weather or a
mechanical problem require
substitution of another aircraft that
could affect the location or availability
of an accommodation).’’ In keeping with
current rules, this final rule requires
airlines to provide the required
information regarding the accessibility
of lavatory features on a flight-specific
basis.19
We do find persuasive RAA’s
comment that the website requirement
should not apply to operating carriers
that do not market flights or sell tickets.
In situations where the operating and
marketing carrier are different entities,
the operating carrier is the airline that
flies the aircraft while the marketing
carrier is the airline that sells the ticket
and generally provides flight-specific
information to the public. Under this
rule, marketing carriers will have the
responsibility to provide information on
their website concerning the
accessibility of aircraft lavatories. We
5. International Symbol of Accessibility
18 14 CFR 382.41(e). We have amended
§ 382.41(e) to add a cross-reference to the
provisions of this final rule.
19 While the rule, as written, does not require
airlines to provide information regarding the
aircraft’s OBW, we encourage airlines to do so.
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NPRM and Comments
The Department proposed 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). In the Part 1 NPRM, we
noted that removal of the symbol is the
only proposed requirement that would
apply to existing in-service lavatories,
and to lavatories on aircraft with FAAcertificated maximum capacity of fewer
than 125 seats. We noted that the goal
is to provide greater consistency
regarding the use of the symbol.
Stakeholders generally supported this
provision. Airlines, while in favor of the
rule, commented that DOT had not
adequately considered the cost of such
removal (without providing data to
assist in the Department’s analysis).
DOT Response
We adopt the proposal as written. In
addition, we are requiring airlines to
include the International Symbol of
Accessibility if the lavatory is capable of
facilitating a seated independent
transfer. As noted above, the
Department’s intent is to provide greater
consistency as to the meaning of the
symbol as it applies to lavatories on
single-aisle aircraft. Accordingly, it is
appropriate to specify when the symbol
must be applied, as well as when it
must be removed. We note that at
present, the additional cost of this
provision will be relatively low, as few
lavatories on single-aisle aircraft are
capable of facilitating a seated
independent transfer. As fully
accessible lavatories become more
commonplace, we expect the proper use
and application of the symbol to grow.
6. Procedures for Sharps and Bio-Waste
NPRM and Comments
The Department proposed to require
airlines to develop and, on request,
inform passengers about their
procedures for disposing of sharps and
bio-waste. The Department reasoned
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 biowaste. Like the information and training
requirements, the proposed rule would
apply to airlines that operate aircraft
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with a maximum FAA-certificated
capacity of more than 60 seats.
All responses to this proposal were in
support. A4A and IATA asked the
Department to clarify that airlines are
not required to provide special facilities
or equipment for disposal.
DOT Response
We adopt the proposal as written. The
intent of the rule is to require airlines
to develop procedures for sharps and
bio-waste disposal and to inform
passengers of those procedures on
request. The rule does not require any
specific type of disposal procedures;
similarly, the rule does not require
airlines to provide special facilities or
equipment for disposal.
7a. OBW Features
NPRM and Comments
As a first step in developing proposed
OBW standards for the Part 1 NPRM, the
Department asked the Access Board to
develop advisory guidelines for
technical assistance. The Department
then adapted the Access Board’s design
standards into more flexible
performance standards. The Department
proposed that airlines could use the
Access Board’s design standards as one
method of compliance. In the Part 1
NPRM, the Department proposed that
the OBW have the following features:
(1) it must be maneuverable both
forward and backward through the
aircraft aisle by an attendant;
(2) it must be maneuverable in a
forward orientation partially into at
least one aircraft lavatory to permit
transfer from the on-board wheelchair to
the toilet; 20
(3) it 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 (an over-the-toilet, or
‘‘OTT’’ feature);
(4) the height of the OBW seat must
align with the height of the aircraft seat
so as to facilitate a safe transfer between
the OBW seat and the aircraft seat;
(5) it must have wheels that lock in
the direction of travel, and that lock in
place so as to permit safe transfers, with
any other moving parts being capable of
being secured such that they do not
move while the occupied OBW is being
maneuvered;
20 The goal of this requirement is to accommodate
passengers who can enter the lavatory using a
‘‘stand-and pivot’’ maneuver. Specifically, the
passenger would approach and partially enter the
lavatory while seated on the OBW, then stand and
pivot 180 degrees to the toilet, at which point the
OBW would be removed and the door would be
closed.
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(6) when occupied for use, it shall not
tip or fall in any direction under normal
operating conditions;
(7) it must have a padded seat and
backrest, and must be free of sharp or
abrasive components;
(8) it 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, with all
restraints operable by the passenger; and
(9) it must prominently display
instructions for proper use.
As noted above, the Department then
held a public meeting to solicit
additional comment and data regarding
OBW standards. At the meeting, a
representative of PVA expressed
support for the OBW provisions set
forth in the Part 1 NPRM but indicated
that they should be expressed as design
standards rather than performance
standards.
A4A and IATA expressed support for
many of the Department’s OBW
proposals. However, they expressed
significant design, cost, and safety
concerns regarding the Department’s
proposal that the OBW be maneuverable
into the lavatory in a backwards
position such that it would be
positioned over the closed toilet seat
(the OTT feature). A representative of
the Volpe Center, which performed the
regulatory analysis on the Part 1 NPRM,
asked questions of the meeting
attendees about the feasibility and cost
of manufacturing OBWs with an OTT
feature. This individual noted that the
OTT feature could be implemented
either by (1) manufacturing different
OBWs to accommodate different toilet
seat heights, or (2) by manufacturing a
single adjustable OBW that
accommodates multiple toilet seat
heights. This commenter noted that
neither product exists on the market
today, and that the cost and feasibility
of producing either design is largely
unknown. An engineer from the
University of Hamburg, which
developed the original prototype of the
OTT design, indicated that an OBW
with a height fixed to the toilet lid may
be problematic in terms of transfers to
and from the aircraft seat, while
adjustable-height OBWs pose different
design challenges.
In supplemental comments following
the OBW meeting, PVA again expressed
support for the proposed design
features, but urged the Department to
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adopt design standards. A4A and IATA
expressed strong support for all of the
proposed OBW design features, except
for element (3) (the OTT feature). They
urged the Department to withdraw this
proposal based on safety and feasibility
concerns. Specifically, they argued that
the Department lacked data from which
to conclude that such a feature can be
manufactured at all, let alone that it
would meet FAA safety standards. They
expressed concerns that the design may
add weight, complexity, and safety
hazards to the OBW, particularly if the
OTT design is adjustable to fit over
toilet lids of various sizes. They also
noted that the Department has limited
data from which to estimate the costs of
designing and manufacturing such a
device. Airlines urged the Department
to continue to consult with stakeholders
regarding the OTT feature, but not to
impose the requirement in a final rule.
Airbus commented that it generally
supported the Department’s
performance standards. However,
Airbus expressed concern that a fully
compliant OBW may be too large to be
transported down the aircraft aisle or
into the lavatory, or stowed in existing
spaces. Airbus also noted that the OTT
feature would not be necessary on its
accessible Airbus A220 lavatories,
because that lavatory was designed to
facilitate an independent transfer using
the aircraft’s existing OBW.
The Department proposed that these
new OBW features should be required
on new single-aisle aircraft with a
maximum FAA-certificated capacity of
125 seats or more. In this way, the OBW
provisions mirror the provisions relating
to the accessible features of lavatory
interiors. Again, the Department
reasoned that larger aircraft tend to
conduct longer flights where the need to
access the lavatory may be greatest.
PVA urged the Department to
‘‘seriously consider’’ expanding these
OBW standards to smaller aircraft. The
Ability Center of Greater Toledo agreed,
noting that individuals may have the
need to access lavatories on shorter
flights as well. A4A urged the
Department not to expand OBW
standards to smaller aircraft unless the
Department engaged in a full
consultation process to determine
feasibility, safety, and costs. A4A noted
that smaller aircraft have smaller aisles,
smaller lavatory entrances, smaller
stowage spaces, and fewer crew
resources.
DOT Response
After review of the Part 1 NPRM
comments, the information gathered at
the OBW public meeting, and the postmeeting supplemental comments, we
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50027
have decided to finalize these OBW
provisions largely as proposed, with one
important amendment. We remain of
the view that performance standards
provide meaningful guideposts for
safety and accessibility while providing
stakeholders flexibility and the
opportunity to innovate in how to meet
those standards. We also remain of the
view that these new OBW standards
should apply to new aircraft with a
maximum capacity of 125 seats or more,
because those aircraft tend to fly longer
routes where the need for lavatory use
in flight is greatest.
However, we have reconsidered the
proposal to require that the OBW 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 (the OTT requirement above). The
purpose of the proposed OTT
requirement was to assist passengers
with significant mobility impairments
who cannot use the ‘‘stand-and-pivot’’
maneuver to enter the lavatory. The
OTT requirement was intended to allow
such passengers full access to the
lavatory space while still seated on the
OBW to permit non-toileting functions
such as catheterization.
We recognize that members of the
ACCESS Advisory Committee saw and
used a simple prototype OBW with an
OTT feature developed by the
University of Hamburg. On the other
hand, since the development of that
prototype in 2016, we have seen no
evidence that it is feasible to
manufacture a fully compliant OBW
with an OTT feature. The costs of
developing such a device remain
unknown. We also share stakeholders’
concerns about the complexity and
safety of such a device, particularly if it
is adjustable to accommodate various
aircraft seat heights and toilet seat
heights. Accordingly, we have
eliminated this requirement.
We remain concerned, however, about
lavatory accessibility for passengers
who are unable to use the stand-andpivot maneuver. We also recognize that
an OTT design may not be the only
method for accommodating such
passengers. For example, certain Airbus
SpaceFlex lavatories are large enough to
accommodate an OBW inside the
lavatory space without the use of an
OTT design. Accordingly, rather than
specifically mandating an OTT design,
we have adjusted this requirement to
broadly state that the OBW must be
maneuverable into the aircraft lavatory
without protruding into the clear space
needed to completely close the lavatory
door. If the lavatory itself is not large
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enough to accommodate an OBW
without an OTT feature, and an OBW
with an OTT feature is not available,
airlines must provide the use of a visual
barrier on request to enable the
passenger to perform lavatory functions
in privacy (see section 7c, below). A
visual barrier would not be an
acceptable means of compliance for
lavatories that are required to be
expanded beyond current
measurements. As for comments to
expand the OBW standards to smaller
aircraft, the Department plans to address
this issue as part of its rulemaking on
Ensuring Safe Accommodations for Air
Travelers with Disabilities Using
Wheelchairs.21
7b. OBW Stowage
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NPRM, Public Meeting, and Comment
The Department proposed that
airlines are not required to expand the
existing FAA-certificated on-board
wheelchair stowage space of the aircraft,
or to modify the interior arrangement of
the lavatory or the aircraft, in order to
comply with the OBW provisions of the
rule. During the OBW public meeting,
Airbus and Boeing provided
information regarding available stowage
spaces.
In supplemental comments to the
OBW public meeting, PVA commented
that because OBWs serve a critical
function with respect to lavatory
accessibility, the final rule ‘‘should
require an air carrier to use any FAAapproved OBW stowage location, not
just its preferred or existing stowage
location.’’ Airlines supported DOT’s
proposal as written. Spirit contended
that if a compliant OBW does not fit in
the existing space, then airlines should
not be required to provide such an
OBW. Spirit also argued that airlines
should not be required to stow the OBW
in an alternate location such as an
overhead bin, this would limit bin space
and raise prices for consumers. They
also expressed safety concerns for flight
attendants if the new OBW weighs more
than 50 pounds.
The Transport Workers Union of
America, AFL–CIO, expressed concerns
regarding the safe operation of OBWs
while in flight, noting that it would be
unsafe to operate them unless the
aircraft is at a safe cruising altitude.
They asked DOT to provide guidance to
the public about when OBWs can be
used.
21 RIN 2105–AF14; https://www.reginfo.gov/
public/do/eAgendaViewRule?pubId=202210&
RIN=2105-AF14.
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DOT Response
We remain of the view that airlines
should not be required to expand the
existing FAA-certificated on-board
wheelchair stowage space of the aircraft,
or to modify the interior arrangement of
the lavatory or the aircraft, in order to
comply with the OBW provisions of the
rule. These provisions are consistent
with the overarching premise that shortterm solutions should not require
modification of aircraft interiors. On the
other hand, we agree with PVA that we
should amend the final rule relating to
stowage.
We recognize the possibility that
newly compliant OBWs may not fit
within pre-existing OBW stowage
spaces. The rule as proposed could be
reasonably interpreted to read that if the
new OBW does not fit within preexisting OBW stowage spaces, then
airlines would not be required to supply
them at all. We agree with PVA that this
is unacceptable. Compliant OBWs will
include important new safety and
accessibility features. Accordingly, the
Department is requiring airlines to stow
the OBW in any other available stowage
space where it can be safely
accommodated (e.g., a stowage closet or
an overhead bin). Airlines are also
required to seek any necessary approval
from the FAA to stow the OBW in this
alternate location. We also note that all
ACAA requirements are subject to safety
restrictions, including the use of the
OBW. We have added rule text
clarifying this point. Airline training
should also make it clear to relevant
staff that OBW stowage spaces does not
affect the options for individuals with
disabilities to stow personal
wheelchairs on board.
7c. Potential Unavailability of Fully
Compliant OBWs
NPRM, Public Meeting, and Comment
In the Part 1 NPRM, the Department
recognized that airlines typically rely on
third parties to develop and
manufacture OBWs, and that an OBW
meeting all of the Department’s
proposed requirements does not
currently exist. Accordingly, the
Department proposed that airlines
would not be responsible for the failure
of third parties to develop and deliver
an OBW that complies with a required
feature described above, so long as the
airline notifies and demonstrates to the
Department that an OBW meeting that
requirement is unavailable despite the
airline’s reasonable efforts.
PVA generally agreed with this
proposal but argued that there should be
a ‘‘higher standard of proof.’’ A4A
strongly supported this provision,
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noting that extensive design and testing
is necessary to determine whether an
OBW meeting DOT’s new standards can
be made commercially available and
safely stowable on-board the aircraft.
DOT Response
After review of the comments and on
further consideration, the Department
has decided to amend the final rule in
certain material respects. First, the final
rule clarifies that airlines must acquire
an OBW with as many required features
as are available, even if no OBW is
available that meets all of the required
standards. Next, the final rule relieves
airlines of the burden of proving a
negative: i.e., demonstrating that an
OBW with a required feature is
unavailable despite the airline’s
reasonable efforts. The final rule still
requires airlines to make reasonable
efforts to purchase OBWs with all
required features. If an OBW with a
required feature is unavailable despite
reasonable efforts, airlines must inform
the Department of that fact.Finally, the
Department recognizes that many OBWs
may not be maneuverable in the aircraft
lavatory as required without protruding
into the clear space needed to
completely close the lavatory door (e.g.,
because the OBW is not of an OTT
design and/or because the lavatory itself
is too small to allow full entry of the
OBW). The final rule specifies that if
airlines cannot provide an OBW
meeting that requirement, then they
must provide the use of a visual barrier
on request to enable the passenger to
perform lavatory functions in private.
The intent of this rule is to provide an
option for passengers who cannot enter
the lavatory by performing a stand-andpivot from the OBW. The Department
anticipates that while such passengers
may not be able to fully enter the
lavatory, they may be able to perform
non-toileting functions such as
catheterization in the lavatory area
behind a visual barrier.
7d. Replacement of OBWs
NPRM, Public Meeting, and Comment
The Department proposed that if an
airline replaced an OBW on aircraft
with an FAA-certificated maximum
seating capacity of 125 or more on a
date later than three years after the
effective date of the final rule, then the
airline must replace it with an on-board
wheelchair that meets the new OBW
standards. This proposal mirrors the
requirement (described above) relating
to retrofitting and replacement of
aircraft lavatories themselves. A4A
commented that airlines should be
permitted to replace a broken or worn-
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out OBW with a new OBW of the same
part number, and that the new standards
should be required only if airlines adopt
a new OBW design. Airbus commented
that relocating the OBW stowage space
should not count as replacing the OBW.
DOT Response
We are adopting the proposed rule as
written. As written, airlines are
provided a three-year time frame to
acquire compliant OBWs. If an airline
replaces an OBW after that date, it is
reasonable to require airlines to provide
a new OBW that meets DOT’s updated
safety and accessibility standards,
because such OBWs will presumably be
available and on the market by that
time. This rule is also consistent with
the general rule, found at 14 CFR
382.71(b), which states that airlines
must ensure that any replacement or
refurbishing of the 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.
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8. Prohibition on Reducing Existing
Lavatory Footprint
NPRM and Comments
In the Part 1 NPRM, the Department
solicited comment on whether to
prohibit airlines from reducing lavatory
footprints below their current size. The
Department sought 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.
Three disability advocacy
organizations (PVA, the National
Multiple Sclerosis Society and Flying
Disabled) urged the Department to
prohibit further reduction of lavatory
footprints. PVA argued that such a
provision would be consistent with the
spirit of part 382.22 A4A and IATA
urged the Department not to adopt such
a proposal. A4A contended that the
Department does not have baseline data
on current lavatory footprints, and
without that data, it cannot calculate the
cost of the proposal (which may be
significant). IATA argued that if the
lavatory met performance standards,
airlines should be permitted to select a
footprint that is best suited to their
operations. Boeing supported the
Department’s suggestion, reasoning that
maintaining one lavatory on single aisle
22 Specifically, PVA cited 14 CFR 382.71, which
states, ‘‘You must ensure that any replacement or
refurbishing of the aircraft cabin or its elements
does not reduce the accessibility of that element to
a level below that specified for new aircraft in this
part.’’
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aircraft at current size would not further
limit accessibility to the traveling public
as a whole. Like A4A, Boeing noted that
clarity on starting lavatory
measurements would be necessary as
there are a variety of different designs in
the industry.
DOT Response
After reviewing the comments on this
issue, we do not have sufficient data to
prohibit airlines from further reducing
the footprint of lavatories at this time,
though this remains an area of interest
given that the small size of current
lavatories is one significant reason that
they are largely inaccessible today. DOT
may revisit this issue in a future
rulemaking.
9. Effective Date
Airlines are required to comply with
all of the short-term accessibility
improvements discussed above three
years after the effective date of this final
rule. This time frame will allow airlines,
aircraft manufacturers, OBW
manufacturers, and other stakeholders
sufficient time to develop accessible
lavatory interiors, training programs,
accessibility information, compliant
OBWs, and appropriate OBW stowage
space.
II. Long-Term Improvements
A. Overview
The Department addressed long-term
improvements in the Part 2 NPRM. The
Department proposed to require that
airlines expand the size of at least one
lavatory on new single-aisle aircraft
with an FAA-certificated maximum
capacity of 125 seats or more. The most
significant issue in the NPRM was the
time frame for implementation. The
Department proposed that the rule
would apply to new single-aisle aircraft
ordered 18 years after the effective date
of the final rule, or delivered 20 years
after the effective date of the final rule
(18/20).23 The Department proposed
this time frame because it tracked the
ACCESS Advisory Committee’s
agreement from 2016.24 At the same
time, the Department recognized the
slow pace of this proposed
implementation period, particularly in
light of the roughly six-year delay
23 In this document, two numbers separated by a
slash refers to a single implementation period. For
example, ‘‘15/17’’ would mean that the rule applies
to new single-aisle aircraft ordered 15 years after
the effective date of the final rule and delivered 17
years after the effective date of the final rule.
24 As noted above, during the ACCESS Advisory
Committee process, the Department publicly
committed that if the Committee reached
consensus, the Department would propose a rule
tracking that agreement to the extent possible.
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between the date of the Committee’s
agreement (in 2016) and the issuance of
the Part 2 NPRM (in 2022). The
Department sought comment and data
on whether and how to accelerate this
implementation period for the final rule.
The comment period closed on May
28, 2022. Broadly speaking, disability
rights organizations supported the rule
but also urged a faster implementation
period. For example, PVA argued that
the Department should subtract the sixyear delay in issuance of the
rulemaking, and therefore that the
requirement for larger lavatories should
apply to aircraft ordered 12 years after
the effective date of the final rule or
delivered 14 years after the effective
date of the final rule (12/14). The MDA
urged the Department to adopt a 10-year
maximum implementation. United
Spinal did not propose a specific time
frame but urged the Department to act
‘‘with all deliberate speed.’’ Individual
commenters universally supported the
rule but urged the Department for a
faster implementation period. Certain
advocates also urged the Department to
apply the rule to smaller aircraft.
Airlines supported the proposal as
written. A4A/IATA argued that if the
Department reduced the
implementation period, (1) it should be
to 15/17, (2) DOT must fully explain the
basis, data, and information that
justifies its deviation from the original
proposal, and (3) DOT must allow
stakeholders to submit supplemental
comment. Airbus and Boeing supplied
technical comments, with Boeing also
supporting the implementation time
frame as written. DOT’s responses to
these and other significant issues raised
by the commenters are provided below.
B. Section-by-Section Analysis
1. Applicability: Aircraft Size
NPRM and Comments
The Department proposed that larger
lavatories would be required on new
single-aisle aircraft with an FAAcertificated maximum capacity of 125
seats or more. The Department reasoned
that such aircraft operate a significant
percentage of longer-haul flights, where
the in-flight need for a lavatory would
be greatest. The Department sought
comment on the costs and benefits of
extending the rule to smaller aircraft.
The Department noted that the
Committee considered, but rejected, a
rule that would require accessible
lavatories based on the length of the
flight as opposed to the size of the
aircraft. The Committee also rejected
other approaches such as phased or
tiered approaches to full accessibility.
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Nevertheless, the Department sought
comment on these issues as well.
Two organizations (Open Doors and
Disability Rights PA) urged the
Department to apply the rule to all new
aircraft. Airlines supported the proposal
as written, contending that this standard
captures the near-total volume of U.S.
passenger traffic. A4A and IATA further
stated that aircraft with fewer than 125
seats are only used on short flights, that
requiring accessible lavatories on
smaller aircraft would impose
substantial costs that may increase fares
and potentially disrupt service to
smaller communities, and that there is
no technical solution for accessible
lavatories on these smaller aircraft.25
Spirit Airlines also supported the rule
as written, and further argued that it
should apply on a fleet-wide basis
instead of a route-by-route basis.
Similarly, RAA supported the 125-seat
standard and preferred the seatingcapacity approach instead of a
scheduled-duration approach.26 Boeing
commented that the proposed standard
is reasonable, noting that smaller
aircraft are operated on shorter routes,
there is no current technical solution for
smaller aircraft, and lowering the
threshold would increase compliance
costs. Airbus did not comment.
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DOT Response
The Department is finalizing this
aspect of the proposal as written. We
recognize that determining a reasonable
threshold for larger accessible lavatories
will always involve a measure of
judgment. On balance, the Department
continues to hold the view that a 125seat threshold is reasonable because it
covers a substantial portion of lengthy
flights. As we explain in the RIA, we
chose not to extend the rule to aircraft
with 100 to 124 seats because aircraft of
this size are increasingly rare, leading to
uncertainty about the benefits of
extending the rule to such aircraft. In
contrast, flights on aircraft of 125 seats
or more made up 58% of all flights and
90% of medium- and long-haul flights
in 2021. We do recognize that in
general, as future aircraft become more
efficient, smaller aircraft may
increasingly operate longer flights; if so,
the Department may revisit this issue in
the future. Finally, after reviewing the
comments, we find essentially no
support for alternative standards of
applicability such as scheduled flight
length, or for tiered/phased approaches
25 Comment
26 Comment
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of A4A/IATA at 16–17.
of RAA at 2–3.
16:03 Jul 31, 2023
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to implementing fully accessible
lavatories.27
2. Lavatory Size: Accommodation of
Passenger and Attendant
NPRM and Comments
The Department proposed that for
applicable aircraft, airlines must include
at least one lavatory of sufficient size to
(1) permit a qualified individual with a
disability equivalent in size to a 95th
percentile male to approach, enter,
maneuver within as necessary to use all
lavatory facilities, and leave, by means
of the aircraft’s on-board wheelchair, in
a closed space that affords privacy
equivalent to that afforded to
ambulatory users; and (2) permit an
assistant equivalent in size to a 95th
percentile male to assist a qualified
individual with a disability, including
assisting in transfers between the toilet
and the aircraft’s on-board wheelchair,
within a closed space that affords
privacy equivalent to that afforded to
ambulatory users.
NDRN commented that the 95th
percentile standard was preferable to
the non-specific standard set forth in the
rule for twin-aisle aircraft lavatories,
which are inconsistent in terms of
accessibility. A4A and IATA supported
the proposal, noting that it tracked the
Committee’s agreement. Airbus
supported the proposal, noting that the
95th percentile overweight/tall U.S.
male is an appropriate reference
measure for an assisted transfer within
the limited space of a lavatory.28 Boeing
argued that the 95th percentile standard
should be placed in guidance, rather
than regulatory text, noting that DOT
took this approach with respect to the
size of twin-aisle aircraft. Boeing also
urged the Department to add that
airlines may use curtains to create the
27 A4A and IATA stated that public comment is
essential to any further adjustments to the
implementation and further suggests that it would
lead to a lack of consistency for no clear benefit.
They specifically oppose different phases of
assisted vs. unassisted transfer, a view shared by
Boeing, who added that such an idea was
specifically rejected in the negotiated rulemaking.
Passenger-advocacy organizations also opposed
additional phases or tiers, largely because they find
them unnecessary. NDRN commented that the
current rulemaking supports attendantaccommodating lavatories without further phases or
tiers. United Spinal Association and PVA shared
similar views that there should not be further
tiering or phasing, but if such is implemented, it
should not increase the implementation timeframe.
28 Airbus also asked if the Department truly
intended to require a space that accommodates both
a 95th percentile male passenger and a 95th
percentile male attendant at the same time, noting
that this ‘‘worst case scenario’’ would be extremely
rare. We believe that the rule text is sufficiently
clear regarding the intended lavatory size and agree
that the scenario described by Airbus is likely to be
rare.
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closed space that affords privacy
equivalent to that afforded to
ambulatory users.
DOT Response
After reviewing the comments, the
Department is finalizing the proposed
rule as written. We have chosen to place
size standards in the rule text, rather
than in guidance, because those
standards are necessary to ensure that
the lavatory is of sufficient size to
accommodate larger passengers and
larger attendants alike. We have not
adopted Boeing’s suggestion that in the
long term, airlines should be permitted
to use curtains to help create a
substantially equivalent privacy space.
Such visual barriers may be necessary in
the short term when lavatories are not
required to be expanded beyond current
measurements. However, such a
solution would be inappropriate in the
long term, given that the Department is
providing airlines and aircraft
manufacturers ample time to engineer
and develop fully compliant solutions.
3. Lavatory Interiors
NPRM and Comments
In the Part 2 NPRM, the Department
included for reference its proposed rules
from the Part 1 NPRM relating to
lavatory interiors. The Department did
not propose new rules for lavatory
interiors that would apply to the larger
lavatories described in the Part 2 NPRM.
PVA noted that passengers with
disabilities should be able to access
flush controls, call buttons, the lavatory
door, the sink, paper towels, and trash
dispenser from a seated position. A4A
supported the proposal as written.
Boeing noted that larger lavatories may
produce situations where certain
controls may not be reachable from a
seated position (on the toilet or on the
OBW).
DOT Response
The Department is adopting the
provisions regarding lavatory interiors
as described above in the discussion of
the Part 1 NPRM. In response to PVA’s
comment, we anticipate that passengers
with disabilities will be able to access,
from a seated position, the components
that they described.
4. Implementation: Effective Date and
Retrofitting
NPRM and Comments
In keeping with its commitment to the
ACCESS Advisory Committee, the
Department proposed to require
accessible lavatories on new single-aisle
aircraft that are: (1) ordered 18 years
after the effective date of the final rule;
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(2) delivered 20 years after the effective
date of the final rule; or (3) part of a new
type-certificated design filed with the
FAA or a foreign carrier’s safety
authority one year after the effective
date of the final rule.29 The Department
also proposed that airlines not be
required to retrofit existing aircraft to
install larger lavatories. This proposal
was consistent not only with the
ACCESS Advisory Committee’s
agreement, but also with existing part
382.30 The Department asked extensive
questions regarding whether and how to
accelerate this time frame for the final
rule, along with the costs and benefits
of doing so.
As noted above, disability advocates
argued for a more accelerated
implementation period. PVA and NDRN
stated that the Department should
deduct the 6-year gap between the
Committee’s agreement and the Part 2
NPRM, for a current implementation
period of 12/14 rather than 18/20. They
argued that this reduction would meet
the parties’ reasonable expectations at
the time the agreement was formed. The
MDA urged the Department to adopt a
10-year maximum implementation.
United Spinal did not propose a specific
time frame but urged the Department to
act ‘‘with all deliberate speed,’’
including a requirement for retrofitting
when an aircraft is taken out of
service.31 Similarly, advocacy
organizations including AARP,
FlyersRights, Disability Rights
Pennsylvania, Flying Disabled, and
Dementia-Friendly Airports Working
Group all argued for significantly
accelerated implementation. Some
urged retrofitting, and others noted that
DOT required accessible lavatories on
twin-aisle aircraft within only two years
from the date of that rule. FlyersRights
argued that the larger lavatories should
also be required on aircraft
29 Most newly manufactured aircraft are based on
an existing type-certificated design that has already
been filed with the FAA. The intent of the ‘‘new
type-certificated design’’ provision is to require
fully accessible lavatories as part of any newly
designed aircraft, so long as the design is filed more
than one year after the effective date of the rule.
A4A and IATA asked the Department to clarify that
this provision ‘‘is referring to a clean sheet design
(i.e., new TCDS and pursuant to 14 CFR 21.19), not
aircraft that are already type certificated (e.g., B737–
MAX) with amended type certification programs.’’
We believe that the rule is adequately clear that this
provision refers to clean sheet designs.
30 See 14 CFR 382.63 (‘‘You are not required to
retrofit cabin interiors of existing aircraft to comply
with the requirements of this section. However, if
you replace a lavatory on an aircraft with more than
one aisle, you must replace it with an accessible
lavatory.’’)
31 Comment of United Spinal at 2 (‘‘DOT should
require accessible lavatories be installed in all
single-aisle aircraft that are taken out of service for
any other changes to the cabin.’’)
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manufactured pursuant to amended
type certificates filed three years after
the effective date of the final rule.
Airlines supported the proposed rule
as written. A4A/IATA posited that the
six-year delay identified by PVA was a
result of the Department’s choices and
not those of the stakeholders. A4A/
IATA opposed any reduction in the
rule’s proposed timing and asked for a
full explanation of DOT’s justification
for any accelerated implementation, as
well as additional public comment if
such a reduction would occur. With
those qualifications, A4A/IATA
indicated that it was open to supporting
a 15/17 implementation period. Spirit
Airlines described the timeline as
proposed by the Department as
‘‘reasonable.’’
As for aircraft manufacturers, Boeing
asked the Department to honor the
timeline of the negotiated rulemaking.32
Airbus did not comment on the
implementation period but noted that
many of its aircraft are already
accessible, with more on the way to
delivery.
DOT Response
After careful consideration of all of
the comments, the Department
concludes that a faster implementation
period is both necessary and
appropriate. First, in our view, requiring
accessible lavatories on an 18/20
implementation period would penalize
passengers with disabilities and other
stakeholders who would benefit from
the rule, for the Department’s own delay
in finalizing the rule. The Department
proposed 18/20 years for the
implementation period to honor the
promise to stakeholders during the
negotiated rulemaking. However, given
the technical feasibility of having
accessible lavatories earlier and the
Department’s position that accessible
toileting is a basic human need and
right, the Department determined that it
is unacceptable to have individuals with
disabilities wait another 18/20 years
after the effective date of the rule. In our
view, reducing the implementation
period by six years would be the
minimum that the Department could do
to maintain the reasonable expectations
of the stakeholders as expressed in the
2016 ACCESS Advisory Committee’s
Term Sheet. Given the significance of
accessible lavatories to passengers with
disabilities and other stakeholders, it is
also appropriate to do more than the
32 Boeing provided proprietary information
regarding the options that it has explored and is
currently exploring for providing accessible
lavatory solutions, along with the advantages and
disadvantages of those options as viewed by its
airline customers.
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bare minimum. The Department is
mandating implementation on the
fastest basis that is both realistic and
economically feasible. After reviewing
the record of the ACCESS Advisory
Committee and the comments received
to the NPRM, we believe that a 10/12
implementation period for newlymanufactured aircraft is realistic from a
technological, engineering, and
manufacturing perspective. This is
particularly true given that the core
lavatory specifications found in this
final rule are essentially unchanged
from the 2016 Term Sheet and the 2021
NPRM. In short, we are confident that
technical solutions do exist, and can be
implemented within a 10/12 time frame.
This time frame also allows airlines and
manufacturers time to satisfy existing
orders and deliveries without
interruption.
So far as we can determine, the
primary driver of industry’s concern is
cost, in the form of lost revenue from
removal of seats and/or impingement of
a larger lavatory into space that could be
used for galleys (food and beverage
service).33 As we explain in our
Regulatory Impact Analysis, those costs
may be recoverable in the form of higher
air fares. Moreover, while the
Department could reduce those burdens
by extending the implementation
period, any such extension will
necessarily impose burdens on
passengers with disabilities who will be
forced to wait longer to enjoy the basic
human dignity of being able to use a
lavatory on a long-haul flight.
Our economic analysis reflects that
with a 10/12 implementation period,
that net revenue impacts to airlines will
range from a loss of 1.6 percent to a gain
of less than one percent. Airfare
increases could range from zero to 3 or
4 percent of baseline airfares, depending
on the ability of airlines to pass on
increased costs through increases in
airfare. These are relatively small
impacts considering access to toilets is
a basic human need and should be
available to all.
We have considered the even more
aggressive solution of retrofitting, but
continue to hold the view that
retrofitting should not be required
33 During the Access Advisory Committee
proceedings, industry stakeholders expressed
concern about mandating accessible lavatories in
the middle of an aircraft’s ordering/manufacturing
cycle, and maintaining fleet commonality, (i.e.,
realizing the considerable cost savings that arise
from having predictable features among an aircraft’s
fleet). See https://www.transportation.gov/officegeneral-counsel/negotiated-regulations/3rdplenary-meeting-%E2%80%93-presentationairplane-life-cycle. We have not seen evidence that
a 10/12 implementation period would significantly
impact either of these concerns.
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because of cost uncertainties. Similarly,
we have not required accessible
lavatories on amended type-certificated
aircraft earlier than 10/12 because this
could again require either retrofitting or
early replacement of existing aircraft,
which would add significant costs or
may not be technically feasible due to
the production cycle of new aircraft. We
will continue to require accessible
lavatories on new type-certificated
(clean sheet) designs filed with the FAA
or a foreign safety authority more than
1 year after the effective date of the
rule.34
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III. Severability
The overall purpose of this rule is to
improve accessibility of lavatories on
single-aisle aircraft in both the short
term and the long term. The short-term
elements include improvements to
lavatory interiors, information
requirements, training requirements,
required procedures for sharps and biowaste, removal of the International
Symbol of Accessibility, improvements
to the aircraft’s OBW, and a requirement
for a visual barrier under certain
circumstances. All of these measures are
designed to improve accessibility in the
time period before the size of the
lavatories themselves must be
expanded. The Department finds that
these short-term improvements can
operate independently of the long-term
measures to increase the size of the
lavatory. Moreover, while the short-term
measures form a suite of improvements,
they can each function separately from
each other. For example, the required
standards for an accessible OBW can
function separately from the required
improvements to existing lavatory
interiors.
The long-term improvements include
a lavatory size requirement for the
passenger onboard an OBW, a lavatory
size requirement for the passenger’s
attendant, and a requirement that
airlines provide such lavatories on new
single-aisle aircraft within a 10/12 time
frame as discussed above. These
measures can function separately from
each other and are intended to operate
as such. In the event that a court were
to invalidate one or more of this final
rules unique provisions, the
Department’s intent is that the
34 During the Access Advisory Committee
proceedings, stakeholders learned that it took
Bombardier approximately 20 years to manufacture
its C-series aircraft from a clean-sheet design that
included an accessible lavatory. It does not logically
follow, that it necessarily takes 20 years to
implement accessibly lavatory solutions on existing
type-certificated aircraft. As we also explained in
the NPRM, airline customers largely chose not to
select the accessible-lavatory option on the C-Series
(now Airbus A220) aircraft that they ordered.
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remaining provisions should remain in
effect to the greatest extent possible.
Regulatory Analyses and Notices
A. Executive Order 12866 (Regulatory
Planning and Review), Executive Order
13563 (Improving Regulation and
Regulatory Review), Executive Order
14094 (Modernizing Regulatory Review)
and DOT Regulatory Policies and
Procedures
This final rule has been determined to
be significant under section 3(f)(1) of
Executive Order 12866 (‘‘Regulatory
Planning and Review’’), as amended by
Executive Order 14094, (‘‘Modernizing
Regulatory Review’’),35 and under the
Department of Transportation’s
Regulatory Policies and Procedures
because of its considerable interest to
the disability community and the
aviation industry. It has been reviewed
by the Office of Management and
Budget (OMB) under Executive Order
12866. A summary of the Department’s
economic analysis is provided in the
paragraphs to follow, and the complete
Regulatory Impact Analysis is available
in the docket for this rulemaking.
The objective of the rule is to ensure
that passengers with disabilities not
only can access lavatories on singleaisle aircraft, but also have privacy and
dignity while using the lavatory during
air travel. As such, this final rule
addresses a human rights issue and
promotes freedom to travel for people
with disabilities. The lack of accessible
lavatories on single-aisle aircraft makes
air travel difficult for passengers with
disabilities, especially if they use
wheelchairs and need help transferring
to a lavatory toilet. Some of the
passengers, knowing that they will not
be able to use the lavatory during a
flight, may dehydrate themselves or
even withhold bodily functions so that
they do not need to urinate. These
actions can cause adverse health effects,
including increased chances of urinary
tract infections. Other passengers may
use adult diapers or catheters, which
they may find degrading and
uncomfortable. Some wheelchair users
avoid flying altogether.
The Department has determined that
regulation is necessary because society
cannot count on the private market to
provide accessible lavatories reliably.
The provision of accessible lavatories
involves resource costs, as evident in
the airlines’ comments on the proposed
rule and their reluctance to comply with
the terms they agreed to during a
negotiated rulemaking. Moreover, the
lack of reliable information on
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FR 21879 (Apr. 11, 2023).
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accessibility means that consumers do
not have an adequate mechanism for
expressing their preferences when they
have a choice between flights with or
without accessible lavatories. This final
rule includes requirements that airlines
provide accurate and consistent
accessibility information under a more
immediate timeframe to address the
information problem. Accurate
information benefits passengers with
disabilities as well as those who simply
would prefer additional space to
perform routine lavatory functions if
presented with the option.
The primary benefits of the rule are
due to expected improvements in the
quality of travel experience for persons
with disabilities who currently
participate in the market for air travel.
In addition, greater convenience and
accessibility could lead passengers with
disabilities to increase their use of air
travel, either by switching from slower
modes of travel or by making more longdistance trips. Assigning monetary
values to such basic human rights as the
ability to relieve oneself involves
intangible dimensions that are
inherently difficult to quantify. These
values are not necessarily observed in
the market. Nevertheless, the
Department gives full consideration to
such unquantified and non-monetized
benefits in its evaluation of this this
rule. These attributes interact with and
can be difficult to empirically
distinguish from other aspects,
including convenience or reductions in
the amount of time needed for travel
planning or for travel itself, that are
easier to value. Using an estimate of
passengers’ willingness to pay to avoid
inconvenience, the benefits analysis
applies a value of $194 one-way trip to
monetize benefits of accessible
lavatories to passengers with
disabilities.
The cost analysis is premised on the
assumption that installing an accessible
lavatory will require airlines, on
average, to eliminate three passenger
seats per aircraft. The three-seat loss
assumption originated from airline
industry analysis presented early in the
rulemaking proceedings, and the
Department recognizes that there will be
variation in impacts across airlines. The
Department lacks sufficient data to
support an alternative assumption.
Table 1 summarizes the results of the
analysis and the potential economic
effects of the rule over the analysis
timeframe, 2023–2067. Benefits
analyzed over 2023–2067 are $1 billion
at a 3% discount rate or $571 million at
a 7% discount rate. The loss of three
passenger seats per aircraft results in
societal costs that include lost producer
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surplus due to the reduction in the
number of passengers transported and
the value of lost consumption. There
also are resource costs due to
manufacturing and designing improved
lavatories and on-board wheelchairs as
well as for flight attendant training. The
cost analyzed over 2023 through 2067,
are $459 million at a 3% discount rate
or $228 million at a 7% discount rate.
The rule also could result in a transfer
from passengers to airlines due to
airlines increasing airfares in response
to the reduced supply of seats. The
annualized transfers estimated for the
primary analysis are $2.2 billion at a 3%
discount rate or $1.1 billion at a 7%
discount rate.
Passengers might experience
economic effects in the form of
increased airfares. The primary analysis
estimates that in 2060 when all aircraft
have accessible lavatories, domestic
passengers would pay an additional
$2.54 per ticket on average and
international passengers would pay an
additional $12.28. Passengers flying in
earlier years, when some aircraft would
not have accessible lavatories and
reduced seating, would experience
smaller airfare increases. The increase
in ticket prices and resulting transfer
from passengers offsets the direct
revenue loss to airlines. Analysis of
potential revenue and price effects
suggests that relative to the baseline, net
revenue impacts to airlines will range
from a loss of 1.6 percent loss to a gain
of less than one percent. Airfare
increases could range from zero to 3 or
4 percent of baseline airfares, depending
on the ability of airlines to pass on
increased costs through increases in
airfare. Segments of the market
characterized by a low price elasticity of
demand will experience the largest
potential fare increases, while the most
price sensitive passengers will likely
experience little to no airfare increases.
In any case, the Department does not
view compromises in accessibility as an
acceptable mechanism for airlines to
50033
achieve or maintain lower prices in the
market for air travel when the solution
is technically and economically feasible.
Based upon the economic analysis
and other information received from
stakeholders throughout the rulemaking,
the Department finds that the benefits of
the final rule justify its costs. While the
benefits of the rule have not been
monetized, the available information
sufficiently demonstrates that the status
quo is untenable for passengers with
disabilities who want or need to travel
by air. In the context of the market for
air travel and the airline industry, the
estimated costs and expected impacts to
airfares and industry revenues are
reasonable, especially when viewed
against the lengthy lead time for
compliance and that industry agreed to
make the accessibility improvements
reflected in the final rule in 2016. These
facts considered as a whole provide the
basis for the Department’s reasoned
determination that the benefits of the
rule justify its costs.
TABLE 1—SUMMARY OF ECONOMIC IMPACTS, 2023–2067
[2021 dollars, millions]
Total
present value
(3% discount)
Item
Benefits ....................................................................................................
Annualized
(7% discount)
$21,166
$1,019
$7,282
$571
8,997
459
433
22
2,733
127
214
10
94
4
48
4
Total societal costs ....................................................................
9,549
459
2,908
228
Net benefits ...............................................................................
11,616
560
4,374
343
Other economic effects:
Transfers from passengers to airlines ..............................................
44,785
2,157
13,562
1,063
Costs:
Lost producer surplus .......................................................................
Value of lost consumption (deadweight loss) ..................................
Resource costs for lavatories, onboard wheelchairs, and flight attendant training .............................................................................
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Total
present value
(7% discount)
Annualized
(3% discount)
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/18,000pound payload capacity). Relative to
typical airlines’ operating costs and
revenues, the impact is expected to be
nonsignificant. We received no
comment on the preliminary finding of
nonsignificance or, more generally, the
potential impact of this rulemaking on
small entities. Therefore, the
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Department certifies that this final rule
will not have a significant impact on a
substantial number of small entities.
U.S.C. 41713. Therefore, the
consultation and funding requirements
of Executive Order 13132 do not apply.
C. Executive Order 13132 (Federalism)
D. Executive Order 13084
This final rule has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132 (‘‘Federalism’’). This final rule
does not include any provision that: (1)
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
This rulemaking has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13084 (‘‘Consultation and Coordination
with Indian Tribal Governments’’).
Because this rulemaking 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 13084 do not apply.
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Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Rules and Regulations
E. Paperwork Reduction Act
This final rule adds two new
collections of information that would
require approval OMB under the
Paperwork Reduction Act of 1995 (Pub.
L. 104–13, 44 U.S.C. 3501 et seq.). The
rule requires carriers operating at least
one aircraft with an FAA-certificated
maximum seating capacity of 60 or more
to provide information, on request, to
qualified individuals with a disability or
persons making inquiries on their behalf
concerning, at a minimum, the
accessibility features of aircraft
lavatories set forth in the rule. A
‘‘carrier’’ is defined as a U.S. citizen or
foreign citizen that undertakes, directly
or indirectly, or by a lease or any other
arrangement, to engage in air
transportation.
This information must be available on
the carrier’s website (if the carrier
markets tickets to the public). The
information must also be provided 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. Carriers must provide
the information required by this rule
three years after the effective date of the
rule.
Under the Paperwork Reduction Act,
before an agency submits a proposed
collection of information to OMB for
approval, it must first publish a
document in the Federal Register
providing notice of the proposed
information collection and a 60-day
comment period, and otherwise consult
with members of the public and affected
agencies concerning each proposed
collection of information. The
Department has not yet published a
notice of the proposed information
collection because the information will
not be required until three years after
the effective date of the final rule.
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F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
(UMRA) of 1995, 2 U.S.C. 1501, requires
agencies to prepare a written assessment
of the costs, benefits, and other effects
of proposed or final rules that include
a Federal mandate likely to result in the
expenditures by States, local or Tribal
governments, or by the private sector, of
$100 million or more (adjusted annually
for inflation with base year of 1995) in
any one year. The 2021 threshold after
adjustment for inflation is $165 million,
using the Implicit Price Deflator for the
Gross Domestic Product. The
assessment may be included in
conjunction with other assessments, as
it is here.
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The final rule is unlikely to result in
expenditures by State, local, or Tribal
governments of more than $100 million
annually. However, it is estimated to
result costs to the airline industry that
may exceed $165 million annually. The
estimated costs are discussed in the
Department’s Regulatory Impact
Analysis.
G. National Environmental Policy Act
The Department has analyzed the
environmental impacts of this 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).36
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.37 Paragraph 4.c.6.i of DOT Order
5610.1C categorically excludes
‘‘[a]ctions relating to consumer
protection, including regulations.’’
Because this rulemaking relates to
ensuring both the nondiscriminatory
access to air transportation for
consumers with disabilities, as well as
the safe transport of the traveling public,
this rulemaking is a consumer
protection rulemaking. The Department
does not anticipate any environmental
impacts, and there are no extraordinary
circumstances present in connection
with this rulemaking.
H. Congressional Review Act
Pursuant to Subtitle E of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (the Congressional
Review Act), OMB’s Office of
Information and Regulatory Affairs has
found that this rule falls within the
scope of 5 U.S.C. 804(2).
List of Subjects in 14 CFR Part 382
Air Carriers, Civil rights, Consumer
protection, Individuals with Disabilities,
Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, the Department of
Transportation amends 14 CFR part 382
as follows:
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36 See
40 CFR 1508.4.
37 Id.
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PART 382—NONDISCRIMINATION ON
THE BASIS OF DISABILITY IN AIR
TRAVEL
1. The authority citation for part 382
continues to read as follows:
■
Authority: 49 U.S.C. 41702, 41705, 41712,
and 41310.
Subpart C—Information for
Passengers
2. In § 382.41, revise paragraph (e) to
read as follows:
■
§ 382.41 What flight-related information
must carriers provide to qualified
individuals with a disability?
*
*
*
*
*
(e) Information regarding accessibility
of lavatories (see § 382.63(h)); and
*
*
*
*
*
Subpart E—Accessibility of Aircraft
3. 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?
*
*
*
*
*
(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
October 2, 2026, 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. You must comply with these
requirements to the extent that such
accessible components are reasonably
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available and certificated for the
applicable aircraft type. You are not
responsible for acquiring lavatory
controls and dispensers with an
accessible feature described above so
long as you inform the Department of
their unavailability despite your
reasonable efforts.
(5) The lavatory door sill must
provide minimum obstruction to the
passage of the on-board 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. Visual
barriers are not an acceptable method of
providing privacy with respect to
lavatories covered in § 382.64.
(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 October 2,
2026, 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, transfer features, and use of the
aircraft’s on-board wheelchair, and
regarding the accessibility features of
the lavatory, including any assembly or
modifications to accessibility features.
(2) You must provide information, on
request, to qualified individuals with a
disability or persons making inquiries
on their behalf concerning, at a
minimum, the accessibility features of
aircraft lavatories set forth in paragraph
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(f) of this section. This information must
also be available on the carrier’s website
(if the carrier markets tickets to the
public), 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 on-board wheelchair to the
toilet seat without requiring the use of
an assistant). You must include the
International Symbol of Accessibility if
the lavatory is capable of providing a
seated independent transfer.
(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
October 2, 2026.
■ 4. Section 382.64 is added to read as
follows:
§ 382.64 What are the requirements for
large accessible lavatories on single-aisle
aircraft?
(a) As a carrier, you must ensure that
all new single-aisle aircraft that you
operate with an FAA-certificated
maximum seating capacity of 125 seats
or more in which lavatories are
provided, shall include at least one
lavatory of sufficient size to:
(1) Permit a qualified individual with
a disability equivalent in size to a 95th
percentile male to approach, enter,
maneuver within as necessary to use all
lavatory facilities, and leave, by means
of the aircraft’s on-board wheelchair, in
a closed space that affords privacy
equivalent to that afforded to
ambulatory users; and
(2) Permit an assistant equivalent in
size to a 95th percentile male to assist
a qualified individual with a disability,
including assisting in transfers between
the toilet and the aircraft’s on-board
wheelchair, within a closed space that
affords privacy equivalent to that
afforded to ambulatory users.
(b) You are not required to retrofit
cabin interiors of existing single-aisle
aircraft to comply with the requirements
of paragraph (a) of this section.
(c) As a carrier, you must comply with
the requirements of this section with
respect to new aircraft that you operate
that were originally ordered after
October 3, 2033, or delivered after
October 2, 2035, or are part of a new
type-certificated design filed with the
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50035
FAA or a foreign carrier’s safety
authority after October 2, 2024.
■ 5. In § 382.65, add paragraphs (e), (f),
(g), and (h) as follows:
§ 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
October 2, 2026, and on which
lavatories are provided include an onboard wheelchair meeting the
requirements of this section. The Access
Board’s published nonbinding technical
assistance on aircraft on-board
wheelchairs may be relied upon for
compliance with these requirements.
(1) The on-board wheelchair must be
maneuverable both forward and
backward through the aircraft aisle by
an attendant.
(2) The height of the on-board
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.
(3) The on-board 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 on-board wheelchair must
be capable of being secured such that
they do not move while the occupied
on-board wheelchair is being
maneuvered.
(4) The on-board wheelchair shall be
designed not to tip or fall in any
direction under normal operating
conditions when occupied for use.
(5) The on-board wheelchair must
have a padded seat and backrest and
must be free of sharp or abrasive
components.
(6) The on-board 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.
(7) The on-board 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.
(8) The on-board wheelchair must be
maneuverable into the aircraft lavatory
without protruding into the clear space
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Federal Register / Vol. 88, No. 146 / Tuesday, August 1, 2023 / Rules and Regulations
needed to completely close the lavatory
door.
(9) The on-board wheelchair must
prominently display instructions for
proper use.
(f) You are not required to expand the
existing FAA-certificated on-board
wheelchair stowage space of the aircraft,
or modify the interior arrangement of
the lavatory or the aircraft, in order to
comply with this section. However, if
the on-board wheelchair that you obtain
does not fit within the original stowage
space, and another space exists (e.g., an
overhead compartment) where the onboard wheelchair could fit consistent
with FAA safety standards, then you
must stow the on-board wheelchair in
that space and must request any
necessary FAA approval to do so. You
are not required to make the on-board
wheelchair available if the pilot-incommand determines that safety or
security considerations preclude its use.
(g) You must acquire an OBW that
complies with as many requirements set
forth in paragraph (e) of this section as
are available. You are not responsible
for the failure of third parties to develop
and deliver an on-board wheelchair that
complies with a requirement set forth in
paragraph (e) of this section so long as
you make reasonable efforts to purchase
such an OBW and inform the
Department at the address cited in
§ 382.159 that an on-board wheelchair
meeting that requirement is unavailable
despite your reasonable efforts. If you
cannot provide a wheelchair meeting
requirement (e)(8) of this section despite
your reasonable efforts, then you must
provide, on request, the use of the visual
barrier (e.g., a curtain) described in
§ 382.63(f)(7) to enable the passenger to
perform lavatory functions in privacy.
(h) If you replace an on-board
wheelchair on aircraft with an FAAcertificated maximum seating capacity
of 125 or more after October 2, 2026,
then you must replace it with an onboard wheelchair that meets the
standards set forth in paragraph (e) of
this section.
lotter on DSK11XQN23PROD with RULES1
Issued this 25th day of July, 2023, in
Washington, DC.
Peter Paul Montgomery Buttigieg,
Secretary.
[FR Doc. 2023–16178 Filed 7–31–23; 8:45 am]
BILLING CODE 4910–9X–P
VerDate Sep<11>2014
16:03 Jul 31, 2023
Jkt 259001
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Part 1300, 1302, and 1308
[Docket No. DEA–481]
RIN 1117–AB81
Implementation of the Designer
Anabolic Steroid Control Act of 2014
Drug Enforcement
Administration (DEA), Department of
Justice.
ACTION: Final rule.
AGENCY:
On December 18, 2014, the
Designer Anabolic Steroid Control Act
of 2014 (DASCA) became law. The Act
amended the Controlled Substances Act
to revise and add specified substances
to the definition of ‘‘anabolic steroid.’’
The Act provided a new mechanism for
temporary and permanent scheduling of
anabolic steroids, and added specific
labeling requirements for products
containing anabolic steroids. The Drug
Enforcement Administration (DEA) is
publishing this rule to amend and
reorganize its regulations to make them
consistent with DASCA regarding the
updated definition, specific substances,
criteria and timeframes applicable to
temporary and permanent scheduling of
anabolic steroids, and labeling
requirements.
SUMMARY:
This final rule is effective August
1, 2023.
FOR FURTHER INFORMATION CONTACT:
Terrence L. Boos, Ph.D., Chief (DOE),
Diversion Control Division, Drug
Enforcement Administration; Mailing
Address: 8701 Morrissette Drive,
Springfield, Virginia 22152. Telephone:
(571) 362–3249.
SUPPLEMENTARY INFORMATION: On
December 18, 2014, the Designer
Anabolic Steroid Control Act of 2014,
Public Law 113–260 (128 Stat. 2929)
(DASCA), became law. The purpose of
this final rule is to codify in Drug
Enforcement Administration (DEA)
regulations the statutory amendments to
the Controlled Substances Act (CSA)
made by DASCA. This final rule merely
conforms the DEA’s regulations to the
statutory amendments to the CSA that
have already taken effect, and does not
add additional requirements to the
regulations. Thus, because this rule does
no more than incorporate statutory
amendments into DEA’s regulations,
publishing a notice of proposed
rulemaking and soliciting public
comment are unnecessary; and the rule
is instead being issued as a final rule
effective immediately.
DATES:
PO 00000
Frm 00044
Fmt 4700
Sfmt 4700
DASCA’s Changes to the CSA
A House Report for DASCA stated
that the purpose of the Act is ‘‘to more
effectively regulate anabolic steroids.’’
H.R. Rep. No. 113–587, Part 2, at 4
(2014). DASCA makes four changes to
the CSA: DASCA (1) revises and adds
additional substances to the existing
definition of ‘‘anabolic steroid’’ in 21
U.S.C. 802(41); (2) provides a new
mechanism for temporary and
permanent scheduling of anabolic
steroids in 21 U.S.C. 811(i); (3) adds
labeling requirements for anabolic
steroids under 21 U.S.C. 825(e); and (4)
provides new penalties for violating the
labeling requirements under 21 U.S.C.
842(a)(16) and 842(c)(1)(C) and (D).
It is evident from the enactment of
DASCA that Congress believed the prior
two public laws addressing steroids
under the CSA (the Anabolic Steroids
Control Act of 1990, Pub. L. 101–647,
and the Anabolic Steroid Control Act of
2004, Pub. L. 108–358) had not
sufficiently stemmed the misuse of
anabolic steroids by athletes, students,
and others. Among other things,
Congress found that the prior statutory
definition of an anabolic steroid was too
narrow and that this narrowness was
being exploited by some manufacturers
and distributors. DASCA was designed
to remedy this situation by: (1)
expressly controlling under the CSA
additional anabolic steroids that have
emerged in the United States in recent
years; and (2) expanding the definition
of an anabolic steroid to allow other
such steroids to be controlled as they
emerged in the future. Indeed, the word
‘‘designer’’ in DASCA’s title reflects that
Congress was targeting those who
sought to circumvent the CSA by
producing anabolic steroids that were
slightly different in chemical structure
from those substances specifically listed
in the CSA but which were intended to
cause the same effects—and thus were
potentially harmful to users. The
following statement by one of the
sponsors of the legislation, Senator
Whitehouse, illustrates these
considerations:
[A] loophole in current law allows for
designer anabolic steroids to easily be found
on the internet, in gyms, and even in retail
stores.
Designer steroids are produced by reverse
engineering existing illegal steroids and then
slightly modifying the chemical composition,
so that the resulting product is not on
[DEA’s] list of controlled substances. When
taken by consumers, designer steroids can
cause serious medical consequences,
including liver injury and increased risk of
heart attack and stroke. They may also lead
to psychological effects such as aggression,
hostility, and addiction.
E:\FR\FM\01AUR1.SGM
01AUR1
]]>Agencies
[Federal Register Volume 88, Number 146 (Tuesday, August 1, 2023)]
[Rules and Regulations]
[Pages 50020-50036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16178]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 382
[Docket No. DOT-OST-2021-0137]
RIN No. 2105-AE89
Accessible Lavatories on Single-Aisle Aircraft
AGENCY: Office of the Secretary (OST), U.S. Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Transportation (Department or DOT) is
issuing a final rule to amend the Department's Air Carrier Access Act
(ACAA) regulation to improve the accessibility of lavatories on single-
aisle aircraft. This final rule is intended to ensure that our air
transportation system is safe and accessible to individuals with
disabilities.
DATES: This rule is effective October 2, 2023.
FOR FURTHER INFORMATION CONTACT: Robert Gorman, Senior Trial Attorney,
Office of Aviation Consumer Protection, 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
Consumer Protection, Department of Transportation, 1200 New Jersey Ave.
SE, Washington, DC 20590, 202-366-9342, 202-366-7152 (fax),
[email protected].
SUPPLEMENTARY INFORMATION:
1. Purpose of Regulatory Action
The Department is committed to ensuring that our air transportation
system is safe and accessible for all. This includes taking necessary
action to remove transportation barriers that exist for individuals
with disabilities. Like all individuals, those with disabilities rely
on transportation for all aspects of their lives. Transportation
connects individuals to family and friends, to jobs and to vital
services, and it opens the door to opportunity.
While accessible lavatories have been required on twin-aisle
aircraft for decades, until now, there has been no requirement that
airlines provide accessible lavatories on single-aisle aircraft.
However, single-aisle aircraft are increasingly used by airlines for
long-haul flights because the fuel efficiency and range of the aircraft
have improved. The percentage of flights between 1,500 and 3,000 miles
flown by single-aisle aircraft increased from less than 40 percent in
1991 to 86 percent in 2021.\1\ These flights can last four or more
hours.
---------------------------------------------------------------------------
\1\ TS T-100 All Segment data, retrieved November 2022.
---------------------------------------------------------------------------
The inability to safely access and use the lavatory on long flights
can impact the dignity of passengers with disabilities and deter them
from traveling by air, limiting their independence and freedom to
travel. This final rule addresses a human rights issue and promotes
freedom to travel for people with disabilities. It is an unfortunate
reality that today, many air travelers with disabilities, knowing that
they will not be able to use the lavatory during a flight, may
dehydrate themselves or even withhold bodily functions so that they do
not need to urinate. These actions can cause adverse health effects,
including increased chances of urinary tract infections. Other
passengers may use adult diapers or catheters, which they may find
degrading and uncomfortable. Some wheelchair users avoid flying
altogether. For example, a recent survey conducted by Paralyzed
Veterans of America (PVA) and 11 other veterans' and disability
advocacy organizations found that 56% of respondents reported that
inaccessible lavatories were reason enough to choose not to fly unless
absolutely necessary.\2\ These are conditions that passengers without
disabilities would justifiably consider intolerable.
---------------------------------------------------------------------------
\2\ Comment of PVA, available at https://www.regulations.gov/comment/DOT-OST-2021-0137-0350, Exhibit A. PVA represents over
16,000 veterans of the U.S. armed forces with spinal cord injury or
disease. See https://pva.org/find-support/membership/.
---------------------------------------------------------------------------
Regulation is necessary because the private marketplace has not met
this basic need for accessible lavatories. While a relatively small
number of single-aisle aircraft do have lavatories that approximate the
size and functionality of accessible twin-aisle aircraft lavatories,
the vast majority of aircraft lavatories are too small to accommodate
on-board wheelchairs or attendants. While accessible lavatory options
do exist in the marketplace, airlines have largely chosen to forgo them
in favor of an additional row of seats or extra galley space. Existing
lavatories often lack accessible features and a safe and reliable means
of accessing those lavatories using an on-board wheelchair. Information
regarding the accessible features of lavatories is difficult to obtain.
We expect this rule to directly benefit millions of individuals
with mobility impairments who cannot independently access the lavatory
as a result of neuromuscular injury, disease, or
[[Page 50021]]
weakness. The rule will also benefit individuals with visual or other
impairments who can access the lavatory but need accessible features
within the lavatory. We also anticipate that the rule will indirectly
benefit passengers of size and families with small children.
2. Statutory Authority
The Air Carrier Access Act (ACAA), 49 U.S.C. 41705, prohibits
discrimination in airline service based on disability. When enacted in
1986, the ACAA applied only to U.S. air carriers. On April 5, 2000, the
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
amended the ACAA to include foreign carriers. The ACAA, while
prohibiting discrimination by U.S. and foreign air carriers in air
transportation against qualified individuals with disabilities, does
not specify how carriers must act to avoid such discrimination. The
statute similarly does not specify how the Department should regulate
with respect to these issues. In addition to the ACAA, the Department's
authority to regulate nondiscrimination in airline service on the basis
of disability is based in the Department's 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 (at 14 CFR part 382) that
require carriers to provide nondiscriminatory service to individuals
with disabilities.
3. Summary of Rulemaking Activities
In 2016, the Department established the Advisory Committee on
Accessible Air Transportation (ACCESS Advisory Committee or Committee)
to negotiate and develop proposed regulations on various issues,
including accessible lavatories on single-aisle aircraft.\3\ The
Committee consisted of stakeholders including disability rights
advocates, airlines, flight attendants, aircraft manufacturers, and the
Department itself. On November 22, 2016, the Committee reached
consensus on recommendations for new regulatory proposals to improve
the accessibility of lavatories on single-aisle aircraft.\4\ The
agreement included recommendations for both short-term and long-term
accessibility improvements. During the negotiated rulemaking process,
the Department indicated that if the stakeholders reached consensus,
the Department would act in good faith to propose rules reflecting that
consensus.
---------------------------------------------------------------------------
\3\ 81 FR 26178 (May 2, 2016).
\4\ https://www.transportation.gov/office-general-counsel/negotiated-regulations/final-resolution-access-committee.
---------------------------------------------------------------------------
In June 2019, the Department announced that the most appropriate
course of action was to conduct two separate accessible lavatory
rulemakings: one for short-term improvements, and one for long-term
improvements. On January 2, 2020, the Department published a notice of
proposed rulemaking (NPRM) relating to short-term improvements (the
Part 1 NPRM).\5\ In that rulemaking, the Department proposed
improvements to lavatory interiors, additional training and information
procedures relating to lavatory accessibility, and improvements to the
aircraft's on-board wheelchair (OBW), but without requiring airlines to
expand the size of the lavatory itself. The comment period to the Part
1 NPRM closed on March 2, 2020.
---------------------------------------------------------------------------
\5\ 85 FR 27 (January 2, 2020), available at https://www.federalregister.gov/documents/2020/01/02/2019-27631/accessible-lavatories-on-single-aisle-aircraft-part-1.
---------------------------------------------------------------------------
On December 16, 2021, the Department and the Architectural
Transportation Barriers and Compliance Board (Access Board) held a
joint public meeting to gather additional information regarding
proposed improvements to the OBW. In connection with this public
meeting, the Department reopened the comment period for the Part 1 NPRM
from December 16, 2021, to January 17, 2022.
On March 28, 2022, the Department issued an NPRM regarding long-
term accessibility improvements that would require airlines to install
larger lavatories on certain single-aisle aircraft to permit a
qualified individual with a disability to perform a seated independent
(unassisted) and dependent (assisted) transfer from an OBW to and from
the toilet (the Part 2 NPRM).\6\ In that rulemaking, the Department
expressed its intention to issue one final rule regarding accessible
lavatories that would address the issues in both the Part 1 NPRM and
the Part 2 NPRM. The comment period to the Part 2 NPRM closed on May
28, 2022.
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\6\ 87 FR 17215 (March 28, 2022), available at https://www.federalregister.gov/documents/2022/03/28/2022-05869/accessible-lavatories-on-single-aisle-aircraft-part-2.
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4. Summary of the Major Provisions
Estimated Costs of On-Condition Actions
------------------------------------------------------------------------
Subject Final Rule Applicability
------------------------------------------------------------------------
Lavatory Interiors......... Lavatory must have grab New single-aisle
bars, accessible aircraft with
faucets and controls, 125+ seats,
accessible call delivered 3 years
buttons and door after effective
locks, minimum date of the rule.
obstruction to the
passage of an on-board
wheelchair (OBW), toe
clearance, and an
available visual
barrier for privacy.
Retrofitting not
required, but
accessibility features
are required if
lavatory is replaced.
OBW improvements........... OBW must facilitate Operators of
safe transfer to and single-aisle
from the aircraft aircraft with
seat, have locking 125+ seats, 3
wheels, and have years after
adequate padding, effective date of
supports and the rule
restraints..
OBW must permit partial
entry into lavatory in
forward position to
permit transfer from
OBW to toilet.
OBW must be
maneuverable into the
lavatory so as to
completely close the
lavatory door; if this
is not possible in the
short term when
lavatories are not
required to be
expanded beyond
current measures,
airlines must provide
visual barrier on
request.
Airlines must stow OBW
in any safe available
stowage space.
Training and Information... Annual hands-on Operators of
training required single-aisle
regarding OBW use, aircraft with 60+
stowage, and assisting seats, 3 years
passengers to/from the after effective
lavatory on the OBW. date of the rule
Information required
within aircraft and on
airline web sites
regarding
accessibility features
of lavatory.
International Symbol of Symbol must be removed Operators of
Accessibility. from lavatories that single-aisle
cannot accommodate an aircraft with 60+
assisted independent seats, 3 years
transfer from OBW to after effective
toilet seat. Symbol date of the rule
must be applied to
lavatories that can do
so.
Sharps and bio-waste....... Airlines must develop Operators of
procedures for single-aisle
handling sharps and aircraft with 60+
bio-waste and must seats, 3 years
inform passengers of after effective
those procedures on date of the rule
request.
[[Page 50022]]
Expanded lavatory size..... Lavatory must permit a New single-aisle
person with a aircraft with
disability and an 125+ seats,
attendant, both ordered 10 years
equivalent in size to or delivered 12
a 95th percentile years after
male, to approach, effective date,
enter, maneuver within or on new type-
as necessary to use certificated
all lavatory aircraft designs
facilities, and leave, filed 1 year
by means of the OBW, after effective
in a closed space that date.
affords privacy
equivalent to that
afforded to ambulatory
users.
------------------------------------------------------------------------
Discussion
I. Short-Term Improvements
A. Overview
1. NPRM and Comments
The Part 1 NPRM addressed accessibility improvements that could be
implemented on a relatively short-term basis that did not involve
expanding the size of the lavatory itself. These improvements included
accessible lavatory interiors, information and training requirements,
and improvements to the aircraft's OBW. In general, the NPRM proposed
performance standards rather than design standards.\7\ The Department
also indicated that it was considering whether to prohibit the floor
dimensions (footprint) of lavatories from being further reduced from
current measurements, on the ground that further reduction would
adversely impact accessibility.
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\7\ In general, performance standards describe a function that
should be met, but leave flexibility in how to meet that standard.
Design standards describe a function with greater technical
specificity but may, as a result, limit the ways that such a
standard could be met. Performance standards are consistent with
Executive Order (E.O.) 12866, section 1(8) (``Each agency . . .
shall, to the extent feasible, specify performance objectives,
rather than specifying the behavior or manner of compliance that
regulated entities must adopt.''). The Part 1 NPRM referenced DOT
Order 2100.6 (2018), which provided guidance regarding its own
rulemaking procedures, including a preference for performance
standards. While the Department has repealed Order 2100.6, the
adoption of performance standards remains consistent with E.O.
12866.
---------------------------------------------------------------------------
The Department received 336 comments to the Part 1 NPRM during the
original comment period (January 2-March 2, 2020). The majority of
comments were from individuals. All individual commenters either
expressed support for the rule, or expressed the view that lavatories
should be larger, or both. Broadly speaking, disability advocates
expressed a preference for design standards over performance standards,
observing that design standards are used for Amtrak and commuter rail.
They supported the proposal that lavatory footprints should not be
reduced beyond current measurements. They generally supported the
information and training requirements. Airlines supported the
Department's proposed improvements to lavatory interiors, including the
adoption of performance standards. They also supported the Department's
proposals for information, signage, and procedures for disposing of
sharps (such as needles and syringes) and bio-waste (defined as any
waste containing infectious materials or potentially infectious
substances). However, they opposed the Department's OBW proposal in its
entirety, arguing that the Department failed to adequately consult with
stakeholders and failed to adequately consider safety. They also
opposed the position that lavatory footprints must not be reduced from
current measurements. Aircraft manufacturers (Airbus and Boeing)
generally supported the Part 1 NPRM. Airbus generally commented that
the proposals were feasible from an engineering perspective. Boeing
supported the Department's view that at least one lavatory should not
be reduced from existing measurements and supported the use of
performance standards.
2. OBW Standards--Public Meeting and Comment
As noted above, the Department and the Access Board held a joint
public meeting to solicit input from stakeholders regarding OBW
standards.\8\ The Department indicated that the meeting was intended to
satisfy the consultation provisions of the negotiated rulemaking with
respect to OBW standards.\9\ The Department specifically solicited
comment from disability advocates, airlines, and aircraft manufacturers
regarding all aspects of OBW design, including but not limited to
costs, benefits, safety considerations, and stowage. The Department
also made significant efforts to elicit data and comment from OBW
manufacturers themselves, with no success; OBW manufacturers did not
participate in the meeting or file comments. During the reopened
comment period, the Department received a total of 12 comments from
individuals and stakeholders.\10\ We will discuss the details of this
meeting and stakeholder comments in greater detail below.
---------------------------------------------------------------------------
\8\ Minutes of the meeting are available at https://www.regulations.gov/document/DOT-OST-2019-0180-0363.
\9\ Specifically, the Access Advisory Committee agreed that the
new OBW standards would apply to aircraft with FAA-certificated
seating capacity of 125 seats or more, and that the OBW would: (1)
permit passage in the aircraft aisle; (2) fit within available
stowage space; and (3) not require modification to lavatory
interiors. The stakeholders further agreed that DOT must ``consult
with advocates, airlines, aircraft manufacturers, manufacturers of
OBW, flight attendant association(s) and other stakeholders in
developing these standards,'' and include the new standards in its
NPRM.
\10\ PVA, A4A/IATA, the Regional Airline Association (RAA),
Spirit Airlines, Boeing, Airbus, the Transport Workers Union of
America, and five individuals. PVA's letter was co-signed by All
Wheels Up, the Christopher & Dana Reeve Foundation, Cure SMA, the
Disability Rights Education & Defense Fund (DREDF), the Epilepsy
Foundation, Hand in Hand: The Domestic Employers Network, the Health
Equity Collaborative, the Muscular Dystrophy Association (MDA), the
National Council on Independent Living (NCIL), the National
Disability Rights Network (NDRN), and the United Spinal Association
(United Spinal).
---------------------------------------------------------------------------
B. Section-by-Section Analysis
1. Improvements to Existing Lavatory Interiors
NPRM and Comments
The Department proposed that grab bars be installed and positioned
as required to meet the needs of individuals with disabilities. The
proposed rule did not include a specific weight-support minimum
threshold (e.g., 250 pounds). In keeping with the Department's
preference for performance standards, we indicated that a specific
weight threshold would be unduly prescriptive, and that grab bars must
necessarily support significant weight in order to adequately meet the
needs of individuals with disabilities. The Department sought comment
on whether this general performance standard provides sufficient
guidance to airlines and lavatory manufacturers. The Department sought
comment on whether a weight-support minimum threshold is necessary, and
if so, what that threshold would be. Airlines for America (A4A) and the
International Air Transport Association (IATA) \11\ supported the
[[Page 50023]]
proposal and asked the Department to clarify in guidance or in the
preamble that airlines may comply with the performance standard by
reference to other Federal standards, such as Americans with
Disabilities Act (ADA) standards. Boeing supported the Department's use
of performance standards throughout the Part 1 NPRM.
---------------------------------------------------------------------------
\11\ A4A is a trade association representing U.S. airlines. IATA
is a trade association representing foreign airlines.
---------------------------------------------------------------------------
Next, the Department proposed 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 proposed 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.
Here, A4A and IATA asked the Department to consider the increased
chance of wasted water.
Next, the Department proposed that attendant call buttons and door
locks must be accessible to an individual seated in the lavatory. We
sought comment on whether to further define ``accessible'' with respect
to call buttons and door locks. For example, we sought 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. On this topic, the Consortium for Constituents with
Disabilities (CCD) \12\ and the Ability Center of Greater Toledo urged
the Department to require that buttons and door controls be marked to
assist passengers with visual disabilities by using braille, large
font, contrasting colors, and embossed symbols.
---------------------------------------------------------------------------
\12\ CCD is a coalition of disability advocacy organizations
including but not limited to the American Council of the Blind, the
American Federation of the Blind, and the DREDF.
---------------------------------------------------------------------------
Next, the Department proposed that lavatory controls and dispensers
must be discernible through the sense of touch, and that operable parts
of the lavatory must be operable with one hand and not require tight
pinching, grasping, or twisting of the wrist. In the preamble to the
proposed rule, we noted that such requirements would apply if those
accessible operable parts are reasonably available and certificated for
the applicable aircraft type. We sought 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 Ability Center of Greater
Toledo indicated that if automatic faucets are not available, lever
faucet handles should be used as opposed to knobs so that the faucet is
operable with one hand and does not require tight pinching. A4A and
IATA urged the Department to state in the regulatory text, rather than
the preamble, that such requirements would apply if those accessible
operable parts are reasonably available and certificated for the
applicable aircraft type. They indicated that they did not want to be
in the position of filing ``waivers'' to establish that such parts are
not available.
Next, the Department proposed to require the lavatory door sill to
provide minimum obstruction for the passage of an OBW, consistent with
applicable safety regulations. The Department recognized that door
sills must prevent the spillage of water into the aircraft cabin. The
provision was intended to promote accessibility without compromising
safety. We sought comment on whether the term ``minimum obstruction''
should be further defined and if so, what that definition should be.
The comments that we received on this issue supported the proposed rule
as written.
Next, recognizing that adequate toe clearance is necessary to
permit the OBW to maneuver into and out of the lavatory, the Department
proposed to require airlines not to reduce toe clearance below the
current measurements of the lavatory. The Department sought comment on
this proposed provision and on whether the term ``toe clearance''
should be specifically defined. Here, the Open Doors Organization
remarked that toe clearance should be clearly identified, ``with
minimum measurements determined by industry experts.'' Airlines
supported the provision as written. Boeing suggested that the rule be
amended to provide that ``toe clearance must not be reduced from
current measurements applicable to the selected lavatory existing
design.'' Airbus suggested that ``alternatively, toe clearance
reduction can be compensated by design measures to achieve equivalent
performance by wheelchair users.''
Finally, the Department proposed that airlines must 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. We sought 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. One disability advocate (Christopher
Wood, of Flying Disabled) remarked that a curtain would be an
inappropriate visual barrier, and that the barrier should be rigid and
lockable. In contrast, Boeing urged the Department to clarify that an
opaque curtain would be a barrier that provides ``substantially
equivalent'' privacy. A4A and IATA commented that the Department should
confirm or clarify that the barrier must provide ``substantially
equivalent'' privacy only in the visual sense. They remarked that DOT
should clarify that airlines have flexibility to choose the best
barrier for their aircraft, and the barrier does not have to be
permanent or physically attached to the aircraft. They also commented
that the barrier requirement should only apply to aft-facing lavatories
or the SpaceFlex models on Airbus A320 aircraft because barriers on mid
or forward lavatories pose safety and security hazards. Spirit asked
the Department to clarify that airlines should not be required to
change aircraft interiors to accommodate a barrier. Spirit also stated
that airlines should be deemed compliant if they use all reasonable
efforts to put up an appropriate barrier but cannot.
The Department proposed that lavatories on new aircraft with an
FAA-certificated maximum capacity of 125 seats or more should have
these accessible features. The Department expressed 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 sought comment on this issue.
PVA \13\ urged the Department to ``fully consider'' requiring
improved lavatory interiors on smaller aircraft. Open Doors and the
Ability Center of Greater Toledo commented that these requirements
should apply to lavatories on aircraft with a capacity of 60 or more,
because the improvements do not require expanding the footprint of the
lavatory itself. Airlines supported the proposed rule as written, with
IATA asking the
[[Page 50024]]
Department to clarify that the rule applies to newly manufactured
aircraft, rather than existing aircraft that are newly acquired by the
carrier.
---------------------------------------------------------------------------
\13\ PVA's comment to the Part 1 NPRM was cosigned by Access
Living of Metropolitan Chicago, American Association of People with
Disabilities, Autistic Self Advocacy Network, Arc of the United
States, Bazelon Center for Mental Health Law, Christopher and Dana
Reeve Foundation, the DREDF, Epilepsy Foundation, MDA, NCIL, NDRN,
National Multiple Sclerosis Society, and United Spinal.
---------------------------------------------------------------------------
DOT Response
After carefully considering the comments, the Department has
decided to adopt requirements for lavatory interiors mostly as
proposed. With respect to grab bars, the rule text provides that they
must be ``provided and positioned as required to meet the needs of
individuals with disabilities.'' Complying with ADA grab bar standards
would be an acceptable way to comply with this provision.
With respect to the provision that ``attendant call buttons and
door locks must be accessible to an individual seated in the
lavatory,'' we agree with CCD's comment that these elements must be
readily usable by passengers with visual disabilities. While the rule
does not specifically prescribe how airlines must comply with this
provision, we agree that features such as braille, large font,
contrasting colors, and embossed symbols are all available means of
compliance.
With respect to the provision that ``lavatory controls and
dispensers must be discernible through the sense of touch, and that
operable parts of the lavatory must be operable with one hand and not
require tight pinching, grasping, or twisting of the wrist,'' we agree
with airlines' request that they should not be held responsible for
obtaining lavatory controls and dispensers that meet those standards if
those accessible operable parts are not reasonably available and
certificated for the applicable aircraft type. The Department specifies
in the rule text that an airline is not responsible for acquiring such
lavatory controls and dispensers so long as an airline makes reasonable
efforts to purchase such items and informs the Department of the
unavailability despite the airline's reasonable efforts. In these
situations, the Department requires airlines to purchase lavatory
controls and dispensers that comply with as many requirements as set
forth. For example, as the Ability Center of Greater Toledo noted, if
automatic faucets are not available, lever faucet handles should be
purchased as opposed to knobs so that the faucet is operable with one
hand.
We have adopted, as proposed, the requirement that toe clearance
not be reduced below current measurements. We have determined that it
is not necessary to require that toe clearance should be set with
minimum measurements determined by industry experts, because a
performance-standard approach still ensures that the OBW is able to
maneuver into and out of the lavatory while providing flexibility to
airlines in how this is done. The purpose of adequate toe clearance is
to permit the passenger to access the lavatory by means of the OBW (for
example, partial entry of the OBW in a forward-facing position to
facilitate a stand-and-pivot maneuver).\14\ Airlines may or may not
find it necessary to increase toe clearance within the interior of the
lavatory to meet this OBW performance standard, depending on the design
of their lavatories and OBWs. However, we prohibit airlines from
reducing existing toe clearance to prevent reduction in accessibility.
---------------------------------------------------------------------------
\14\ See Comment of ACCESS Advisory Committee member Katharine
Hunter-Zaworski, Oregon State University, at 3 (``Toe clearance
measurements are dependent on the design of the OBW. Prior design
work has clearly shown that increasing the toe clearance under
cabinets increases the overall accessibility of the lavatory by
increasing maneuvering space. The height of the footrest on OBW is
dependent on the design of the OBW. The fact that both the OBW and
lavatory design affect toe clearance illustrates the need to
consider the OBW and lavatory as a system when establishing
regulatory requirements on either one.'')
---------------------------------------------------------------------------
Next, we will adopt as written the proposed rule text relating to
the visual barrier. The text states that ``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.'' The
barrier does not need to be permanent or physically attached to the
aircraft to afford that level of privacy. The term ``visual barrier''
adequately indicates that the privacy is of a visual nature. In sum, we
believe that the proposed rule text provides sufficient flexibility for
airlines to provide the necessary privacy without compromising safety.
We do, however, clarify in rule text that visual barriers are only
appropriate as a short-term accessibility improvement. They will not be
an appropriate means of providing privacy for the larger lavatories
that will be required in the longer term.
Finally, we remain of the view that changes to lavatory interiors
should be provided on new single-aisle aircraft with an FAA-
certificated maximum seating capacity of 125 or more, because such
aircraft tend to operate longer flights where the need for a lavatory
access is greatest. As the Regulatory Impact Analysis explains, single-
aisle aircraft with at least 125 seats are used for most domestic
flights in the United States (67% in 2021) and are increasingly used
for longer flights due to improvements in fuel efficiency and range. In
response to IATA's comment, we believe that the rule text already
adequately conveys that the rule applies to newly manufactured aircraft
delivered three years after the effective date of the final rule,
rather than existing aircraft that are newly acquired by an airline.
2. Retrofitting
NPRM and Comments
The Department proposed that retrofitting of lavatories on aircraft
currently in service would not be required; however, if an airline
replaces a lavatory three years or more after the effective date of the
rule, airlines would be required to install a lavatory that meets the
new requirements. Under this proposal, ``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.
A4A and IATA suggested that DOT clarify in the preamble to the
final rule that to trigger the new compliant lavatory, airlines must
totally replace the lavatory shell, not only replace limited
components. Boeing suggested that the Department clarify that
retrofitting would not be required for ``any other action that results
in returning the same lavatory part number or lavatory with the same
design intent into service.'' Boeing reasoned that ``there may be
instances where, during a heavy maintenance check, a lavatory is
removed and must be replaced with a new lavatory of the same part
number or design intent.''
DOT Response
We have decided to adopt the final rule as proposed. The text
provides that ``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.'' In our view, the
regulatory text adequately explains what constitutes a replacement
lavatory that triggers installation of a compliant lavatory.\15\ We
reject Boeing's
[[Page 50025]]
suggestion that retrofitting is not required if the airline wishes to
replace an existing lavatory with a new lavatory of the same part
number or design intent. To the contrary, the Department is of the view
that this is the type of replacement where the airline would be
required to install a compliant lavatory.
---------------------------------------------------------------------------
\15\ We also note that this retrofitting provision, which
requires retrofitting on a lavatory-by-lavatory basis rather than a
component-by-component basis, is consistent with prior law. See now-
repealed section 382.63(c) (``You are not required to retrofit cabin
interiors of existing aircraft to comply with the requirements of
this section. However, if you replace a lavatory on an aircraft with
more than one aisle, you must replace it with an accessible
lavatory.'')
---------------------------------------------------------------------------
3. Training
NPRM and Comments
The Department proposed training and information requirements that
would 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. These
provisions would apply three years after the effective date of the
final rule.
Specifically, the Department proposed to require airlines to train
flight attendants to proficiency on proper procedures for assisting
qualified individuals with disabilities to and from the lavatory from
the aircraft seat.\16\ Such training would include annual hands-on
training on the retrieval, assembly, stowage, and use of the aircraft's
OBW, and training regarding the accessibility features of the lavatory.
The Department sought comment on whether annual training is necessary,
or whether a different frequency of training would be more appropriate.
---------------------------------------------------------------------------
\16\ 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).
---------------------------------------------------------------------------
Stakeholders generally supported this proposal. PVA contended that
the rule should include training on ``any assembly or modifications to
accessibility features'' of accessible lavatories.\17\ PVA reasoned
that certain lavatories, such as the SpaceFlex lavatory installed on
certain Airbus aircraft, require flight attendants to remove a
partition to create a larger lavatory space. A4A supported the rule as
written without the phrase suggested by PVA. A4A also stated that DOT
should consider hands-on training on a phased-in schedule, combined
with online/video training. A4A recommended that DOT clarify exactly
what constitutes hands-on training of interior lavatory features. A4A
also argued that it is not feasible to provide hands-on training for
retrieval and stowage of OBWs on every aircraft type, so the training
should only address following instructions on how to stow and retrieve
any type of OBW. Finally, A4A asserted its belief that DOT has not
conducted a complete analysis of the costs of hands-on training, but
A4A did not supply any such data to assist the Department's analysis.
IATA indicated that DOT should clarify specifically whether contractor
employees are included, or instead clarify that the rule only applies
to flight attendants. IATA expressed the view that annual hands-on
training is onerous, and that DOT did not adequately consider the costs
of training and constructing lavatory mockups. Spirit expressed safety
concerns to the extent that the rule requires flight attendants to lift
passengers out of their seats, because many contracts limit flight
attendants from lifting more than 50 pounds. Responses to these
comments pertaining to the economic analysis can be found in the RIA.
---------------------------------------------------------------------------
\17\ This phrase was included in the original Term Sheet
reflecting the stakeholders' agreement. In the Part 1 NPRM, DOT
declined to include this phrase.
---------------------------------------------------------------------------
At the OBW public meeting held in December 2021, stakeholders
discussed whether to clarify that the training requirements should
include the ``transfer features'' of the OBW. In supplemental comments,
A4A and IATA indicated that they supported this amendment. RAA,
representing regional airlines, asked the Department to clarify that
staff must only be trained with respect to each airline's operational
environment.
DOT Response
After review of the comments, we are adopting training requirements
largely as proposed. In our view, annual hands-on training is necessary
and appropriate with respect to any OBW that the flight attendant may
be required to retrieve, use, and stow. We are also persuaded by PVA's
comment to specifically include training on ``any assembly or
modifications to accessibility features'' of a lavatory. Such an
addition would make it clear that airlines are required to provide
hands-on training with respect to elements such as the movable
partition of a SpaceFlex lavatory, because such a partition would be an
``accessibility feature'' of the lavatory. Also, the training
requirements apply only to flight attendants rather than off-aircraft
contractors because flight attendants would be the staff that assist
passengers in flight to access the lavatory.
We agree with the stakeholders' suggestion to clarify that training
must include the ``transfer features'' of the OBW. In response to
Spirit's comment, we note that while the rule would require flight
attendants to assist passengers in transferring to and from the OBW,
and maneuvering the OBW to and from the lavatory, it does not
necessarily require staff to lift passengers. In other words, flight
attendants are required to assist the person with a disability to
transfer to the aisle chair as best as they can but may not be able to
physically lift or carry the person even with the use of a sliding
board. We have not amended the rule text to clarify that staff must
only be trained with respect to each airline's operational environment,
because we believe that the rule is already sufficiently clear on that
point.
4. Information
NPRM and Comments
The Department proposed to require airlines to provide information,
on request, to qualified individuals with a disability or persons
making inquiries on their behalf concerning the accessibility of
aircraft lavatories. We proposed that 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. We stated that the intent of this proposal 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.
PVA urged the Department to require that this information be
``affirmatively sent'' to anyone who self-identifies as using a
mobility device or a service animal. In response to the Part 2 NPRM,
NDRN noted that many airlines with relatively accessible lavatories in
their fleet (such as the Airbus SpaceFlex) do not make clear to
passengers whether their specific flight actually includes such a
lavatory. RAA, representing regional carriers, urged the Department to
reconsider the website requirement. RAA explained that the vast
majority of its airline members are operating carriers that do not
market flights or sell tickets. RAA explained that its members operate
flights through agreements with larger mainline partners (marketing
carriers) who are responsible for providing flight information to the
public. RAA contended that because the traveling public rarely visits
RAA members' websites, the more appropriate rule would be to apply the
[[Page 50026]]
information requirements to marketing carriers.
DOT Response
On further review of this provision, and after reviewing the
comments, we believe it is appropriate to clarify the Department's
intent with respect to information on accessibility of aircraft
lavatories. First, rather than broadly requiring airlines to provide
information regarding ``the accessibility of aircraft lavatories,'' the
final rule specifies that the information must include, at a minimum,
information about the accessibility features of aircraft lavatories
that are set forth in Sec. 382.63(f) (relating to lavatory interiors).
This change is consistent with the proposed requirement that the
information must include picture diagrams of accessibility features in
the lavatory and the location and usage of all controls and dispensers.
We also note that, consistent with the current requirements of part
382, this information must be flight-specific to the extent possible.
Specifically, a different provision of part 382 states that carriers
must provide, on request, certain information ``concerning the
accessibility of the aircraft expected to make a particular flight,''
including ``whether the aircraft has an accessible lavatory.'' \18\
Under current rules, that information ``must be specific to the
aircraft you [airlines] expect to use for the flight unless it is
unfeasible for you to do so (e.g., because unpredictable circumstances
such as weather or a mechanical problem require substitution of another
aircraft that could affect the location or availability of an
accommodation).'' In keeping with current rules, this final rule
requires airlines to provide the required information regarding the
accessibility of lavatory features on a flight-specific basis.\19\
---------------------------------------------------------------------------
\18\ 14 CFR 382.41(e). We have amended Sec. 382.41(e) to add a
cross-reference to the provisions of this final rule.
\19\ While the rule, as written, does not require airlines to
provide information regarding the aircraft's OBW, we encourage
airlines to do so.
---------------------------------------------------------------------------
We do find persuasive RAA's comment that the website requirement
should not apply to operating carriers that do not market flights or
sell tickets. In situations where the operating and marketing carrier
are different entities, the operating carrier is the airline that flies
the aircraft while the marketing carrier is the airline that sells the
ticket and generally provides flight-specific information to the
public. Under this rule, marketing carriers will have the
responsibility to provide information on their website concerning the
accessibility of aircraft lavatories. We have amended the final rule
accordingly.
5. International Symbol of Accessibility
NPRM and Comments
The Department proposed 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). In the Part 1
NPRM, we noted that removal of the symbol is the only proposed
requirement that would apply to existing in-service lavatories, and to
lavatories on aircraft with FAA-certificated maximum capacity of fewer
than 125 seats. We noted that the goal is to provide greater
consistency regarding the use of the symbol.
Stakeholders generally supported this provision. Airlines, while in
favor of the rule, commented that DOT had not adequately considered the
cost of such removal (without providing data to assist in the
Department's analysis).
DOT Response
We adopt the proposal as written. In addition, we are requiring
airlines to include the International Symbol of Accessibility if the
lavatory is capable of facilitating a seated independent transfer. As
noted above, the Department's intent is to provide greater consistency
as to the meaning of the symbol as it applies to lavatories on single-
aisle aircraft. Accordingly, it is appropriate to specify when the
symbol must be applied, as well as when it must be removed. We note
that at present, the additional cost of this provision will be
relatively low, as few lavatories on single-aisle aircraft are capable
of facilitating a seated independent transfer. As fully accessible
lavatories become more commonplace, we expect the proper use and
application of the symbol to grow.
6. Procedures for Sharps and Bio-Waste
NPRM and Comments
The Department proposed to require airlines to develop and, on
request, inform passengers about their procedures for disposing of
sharps and bio-waste. The Department reasoned 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. Like the information and training requirements, the proposed
rule would apply to airlines that operate aircraft with a maximum FAA-
certificated capacity of more than 60 seats.
All responses to this proposal were in support. A4A and IATA asked
the Department to clarify that airlines are not required to provide
special facilities or equipment for disposal.
DOT Response
We adopt the proposal as written. The intent of the rule is to
require airlines to develop procedures for sharps and bio-waste
disposal and to inform passengers of those procedures on request. The
rule does not require any specific type of disposal procedures;
similarly, the rule does not require airlines to provide special
facilities or equipment for disposal.
7a. OBW Features
NPRM and Comments
As a first step in developing proposed OBW standards for the Part 1
NPRM, the Department asked the Access Board to develop advisory
guidelines for technical assistance. The Department then adapted the
Access Board's design standards into more flexible performance
standards. The Department proposed that airlines could use the Access
Board's design standards as one method of compliance. In the Part 1
NPRM, the Department proposed that the OBW have the following features:
(1) it must be maneuverable both forward and backward through the
aircraft aisle by an attendant;
(2) it must be maneuverable in a forward orientation partially into
at least one aircraft lavatory to permit transfer from the on-board
wheelchair to the toilet; \20\
---------------------------------------------------------------------------
\20\ The goal of this requirement is to accommodate passengers
who can enter the lavatory using a ``stand-and pivot'' maneuver.
Specifically, the passenger would approach and partially enter the
lavatory while seated on the OBW, then stand and pivot 180 degrees
to the toilet, at which point the OBW would be removed and the door
would be closed.
---------------------------------------------------------------------------
(3) it 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 (an over-the-toilet, or ``OTT'' feature);
(4) the height of the OBW seat must align with the height of the
aircraft seat so as to facilitate a safe transfer between the OBW seat
and the aircraft seat;
(5) it must have wheels that lock in the direction of travel, and
that lock in place so as to permit safe transfers, with any other
moving parts being capable of being secured such that they do not move
while the occupied OBW is being maneuvered;
[[Page 50027]]
(6) when occupied for use, it shall not tip or fall in any
direction under normal operating conditions;
(7) it must have a padded seat and backrest, and must be free of
sharp or abrasive components;
(8) it 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, with all restraints operable by the passenger;
and
(9) it must prominently display instructions for proper use.
As noted above, the Department then held a public meeting to
solicit additional comment and data regarding OBW standards. At the
meeting, a representative of PVA expressed support for the OBW
provisions set forth in the Part 1 NPRM but indicated that they should
be expressed as design standards rather than performance standards.
A4A and IATA expressed support for many of the Department's OBW
proposals. However, they expressed significant design, cost, and safety
concerns regarding the Department's proposal that the OBW be
maneuverable into the lavatory in a backwards position such that it
would be positioned over the closed toilet seat (the OTT feature). A
representative of the Volpe Center, which performed the regulatory
analysis on the Part 1 NPRM, asked questions of the meeting attendees
about the feasibility and cost of manufacturing OBWs with an OTT
feature. This individual noted that the OTT feature could be
implemented either by (1) manufacturing different OBWs to accommodate
different toilet seat heights, or (2) by manufacturing a single
adjustable OBW that accommodates multiple toilet seat heights. This
commenter noted that neither product exists on the market today, and
that the cost and feasibility of producing either design is largely
unknown. An engineer from the University of Hamburg, which developed
the original prototype of the OTT design, indicated that an OBW with a
height fixed to the toilet lid may be problematic in terms of transfers
to and from the aircraft seat, while adjustable-height OBWs pose
different design challenges.
In supplemental comments following the OBW meeting, PVA again
expressed support for the proposed design features, but urged the
Department to adopt design standards. A4A and IATA expressed strong
support for all of the proposed OBW design features, except for element
(3) (the OTT feature). They urged the Department to withdraw this
proposal based on safety and feasibility concerns. Specifically, they
argued that the Department lacked data from which to conclude that such
a feature can be manufactured at all, let alone that it would meet FAA
safety standards. They expressed concerns that the design may add
weight, complexity, and safety hazards to the OBW, particularly if the
OTT design is adjustable to fit over toilet lids of various sizes. They
also noted that the Department has limited data from which to estimate
the costs of designing and manufacturing such a device. Airlines urged
the Department to continue to consult with stakeholders regarding the
OTT feature, but not to impose the requirement in a final rule.
Airbus commented that it generally supported the Department's
performance standards. However, Airbus expressed concern that a fully
compliant OBW may be too large to be transported down the aircraft
aisle or into the lavatory, or stowed in existing spaces. Airbus also
noted that the OTT feature would not be necessary on its accessible
Airbus A220 lavatories, because that lavatory was designed to
facilitate an independent transfer using the aircraft's existing OBW.
The Department proposed that these new OBW features should be
required on new single-aisle aircraft with a maximum FAA-certificated
capacity of 125 seats or more. In this way, the OBW provisions mirror
the provisions relating to the accessible features of lavatory
interiors. Again, the Department reasoned that larger aircraft tend to
conduct longer flights where the need to access the lavatory may be
greatest.
PVA urged the Department to ``seriously consider'' expanding these
OBW standards to smaller aircraft. The Ability Center of Greater Toledo
agreed, noting that individuals may have the need to access lavatories
on shorter flights as well. A4A urged the Department not to expand OBW
standards to smaller aircraft unless the Department engaged in a full
consultation process to determine feasibility, safety, and costs. A4A
noted that smaller aircraft have smaller aisles, smaller lavatory
entrances, smaller stowage spaces, and fewer crew resources.
DOT Response
After review of the Part 1 NPRM comments, the information gathered
at the OBW public meeting, and the post-meeting supplemental comments,
we have decided to finalize these OBW provisions largely as proposed,
with one important amendment. We remain of the view that performance
standards provide meaningful guideposts for safety and accessibility
while providing stakeholders flexibility and the opportunity to
innovate in how to meet those standards. We also remain of the view
that these new OBW standards should apply to new aircraft with a
maximum capacity of 125 seats or more, because those aircraft tend to
fly longer routes where the need for lavatory use in flight is
greatest.
However, we have reconsidered the proposal to require that the OBW
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 (the OTT requirement above). The purpose of the proposed OTT
requirement was to assist passengers with significant mobility
impairments who cannot use the ``stand-and-pivot'' maneuver to enter
the lavatory. The OTT requirement was intended to allow such passengers
full access to the lavatory space while still seated on the OBW to
permit non-toileting functions such as catheterization.
We recognize that members of the ACCESS Advisory Committee saw and
used a simple prototype OBW with an OTT feature developed by the
University of Hamburg. On the other hand, since the development of that
prototype in 2016, we have seen no evidence that it is feasible to
manufacture a fully compliant OBW with an OTT feature. The costs of
developing such a device remain unknown. We also share stakeholders'
concerns about the complexity and safety of such a device, particularly
if it is adjustable to accommodate various aircraft seat heights and
toilet seat heights. Accordingly, we have eliminated this requirement.
We remain concerned, however, about lavatory accessibility for
passengers who are unable to use the stand-and-pivot maneuver. We also
recognize that an OTT design may not be the only method for
accommodating such passengers. For example, certain Airbus SpaceFlex
lavatories are large enough to accommodate an OBW inside the lavatory
space without the use of an OTT design. Accordingly, rather than
specifically mandating an OTT design, we have adjusted this requirement
to broadly state that the OBW must be maneuverable into the aircraft
lavatory without protruding into the clear space needed to completely
close the lavatory door. If the lavatory itself is not large
[[Page 50028]]
enough to accommodate an OBW without an OTT feature, and an OBW with an
OTT feature is not available, airlines must provide the use of a visual
barrier on request to enable the passenger to perform lavatory
functions in privacy (see section 7c, below). A visual barrier would
not be an acceptable means of compliance for lavatories that are
required to be expanded beyond current measurements. As for comments to
expand the OBW standards to smaller aircraft, the Department plans to
address this issue as part of its rulemaking on Ensuring Safe
Accommodations for Air Travelers with Disabilities Using
Wheelchairs.\21\
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\21\ RIN 2105-AF14; https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202210&RIN=2105-AF14.
---------------------------------------------------------------------------
7b. OBW Stowage
NPRM, Public Meeting, and Comment
The Department proposed that airlines are not required to expand
the existing FAA-certificated on-board wheelchair stowage space of the
aircraft, or to modify the interior arrangement of the lavatory or the
aircraft, in order to comply with the OBW provisions of the rule.
During the OBW public meeting, Airbus and Boeing provided information
regarding available stowage spaces.
In supplemental comments to the OBW public meeting, PVA commented
that because OBWs serve a critical function with respect to lavatory
accessibility, the final rule ``should require an air carrier to use
any FAA-approved OBW stowage location, not just its preferred or
existing stowage location.'' Airlines supported DOT's proposal as
written. Spirit contended that if a compliant OBW does not fit in the
existing space, then airlines should not be required to provide such an
OBW. Spirit also argued that airlines should not be required to stow
the OBW in an alternate location such as an overhead bin, this would
limit bin space and raise prices for consumers. They also expressed
safety concerns for flight attendants if the new OBW weighs more than
50 pounds.
The Transport Workers Union of America, AFL-CIO, expressed concerns
regarding the safe operation of OBWs while in flight, noting that it
would be unsafe to operate them unless the aircraft is at a safe
cruising altitude. They asked DOT to provide guidance to the public
about when OBWs can be used.
DOT Response
We remain of the view that airlines should not be required to
expand the existing FAA-certificated on-board wheelchair stowage space
of the aircraft, or to modify the interior arrangement of the lavatory
or the aircraft, in order to comply with the OBW provisions of the
rule. These provisions are consistent with the overarching premise that
short-term solutions should not require modification of aircraft
interiors. On the other hand, we agree with PVA that we should amend
the final rule relating to stowage.
We recognize the possibility that newly compliant OBWs may not fit
within pre-existing OBW stowage spaces. The rule as proposed could be
reasonably interpreted to read that if the new OBW does not fit within
pre-existing OBW stowage spaces, then airlines would not be required to
supply them at all. We agree with PVA that this is unacceptable.
Compliant OBWs will include important new safety and accessibility
features. Accordingly, the Department is requiring airlines to stow the
OBW in any other available stowage space where it can be safely
accommodated (e.g., a stowage closet or an overhead bin). Airlines are
also required to seek any necessary approval from the FAA to stow the
OBW in this alternate location. We also note that all ACAA requirements
are subject to safety restrictions, including the use of the OBW. We
have added rule text clarifying this point. Airline training should
also make it clear to relevant staff that OBW stowage spaces does not
affect the options for individuals with disabilities to stow personal
wheelchairs on board.
7c. Potential Unavailability of Fully Compliant OBWs
NPRM, Public Meeting, and Comment
In the Part 1 NPRM, the Department recognized that airlines
typically rely on third parties to develop and manufacture OBWs, and
that an OBW meeting all of the Department's proposed requirements does
not currently exist. Accordingly, the Department proposed that airlines
would not be responsible for the failure of third parties to develop
and deliver an OBW that complies with a required feature described
above, so long as the airline notifies and demonstrates to the
Department that an OBW meeting that requirement is unavailable despite
the airline's reasonable efforts.
PVA generally agreed with this proposal but argued that there
should be a ``higher standard of proof.'' A4A strongly supported this
provision, noting that extensive design and testing is necessary to
determine whether an OBW meeting DOT's new standards can be made
commercially available and safely stowable on-board the aircraft.
DOT Response
After review of the comments and on further consideration, the
Department has decided to amend the final rule in certain material
respects. First, the final rule clarifies that airlines must acquire an
OBW with as many required features as are available, even if no OBW is
available that meets all of the required standards. Next, the final
rule relieves airlines of the burden of proving a negative: i.e.,
demonstrating that an OBW with a required feature is unavailable
despite the airline's reasonable efforts. The final rule still requires
airlines to make reasonable efforts to purchase OBWs with all required
features. If an OBW with a required feature is unavailable despite
reasonable efforts, airlines must inform the Department of that
fact.Finally, the Department recognizes that many OBWs may not be
maneuverable in the aircraft lavatory as required without protruding
into the clear space needed to completely close the lavatory door
(e.g., because the OBW is not of an OTT design and/or because the
lavatory itself is too small to allow full entry of the OBW). The final
rule specifies that if airlines cannot provide an OBW meeting that
requirement, then they must provide the use of a visual barrier on
request to enable the passenger to perform lavatory functions in
private. The intent of this rule is to provide an option for passengers
who cannot enter the lavatory by performing a stand-and-pivot from the
OBW. The Department anticipates that while such passengers may not be
able to fully enter the lavatory, they may be able to perform non-
toileting functions such as catheterization in the lavatory area behind
a visual barrier.
7d. Replacement of OBWs
NPRM, Public Meeting, and Comment
The Department proposed that if an airline replaced an OBW on
aircraft with an FAA-certificated maximum seating capacity of 125 or
more on a date later than three years after the effective date of the
final rule, then the airline must replace it with an on-board
wheelchair that meets the new OBW standards. This proposal mirrors the
requirement (described above) relating to retrofitting and replacement
of aircraft lavatories themselves. A4A commented that airlines should
be permitted to replace a broken or worn-
[[Page 50029]]
out OBW with a new OBW of the same part number, and that the new
standards should be required only if airlines adopt a new OBW design.
Airbus commented that relocating the OBW stowage space should not count
as replacing the OBW.
DOT Response
We are adopting the proposed rule as written. As written, airlines
are provided a three-year time frame to acquire compliant OBWs. If an
airline replaces an OBW after that date, it is reasonable to require
airlines to provide a new OBW that meets DOT's updated safety and
accessibility standards, because such OBWs will presumably be available
and on the market by that time. This rule is also consistent with the
general rule, found at 14 CFR 382.71(b), which states that airlines
must ensure that any replacement or refurbishing of the 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.
8. Prohibition on Reducing Existing Lavatory Footprint
NPRM and Comments
In the Part 1 NPRM, the Department solicited comment on whether to
prohibit airlines from reducing lavatory footprints below their current
size. The Department sought 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.
Three disability advocacy organizations (PVA, the National Multiple
Sclerosis Society and Flying Disabled) urged the Department to prohibit
further reduction of lavatory footprints. PVA argued that such a
provision would be consistent with the spirit of part 382.\22\ A4A and
IATA urged the Department not to adopt such a proposal. A4A contended
that the Department does not have baseline data on current lavatory
footprints, and without that data, it cannot calculate the cost of the
proposal (which may be significant). IATA argued that if the lavatory
met performance standards, airlines should be permitted to select a
footprint that is best suited to their operations. Boeing supported the
Department's suggestion, reasoning that maintaining one lavatory on
single aisle aircraft at current size would not further limit
accessibility to the traveling public as a whole. Like A4A, Boeing
noted that clarity on starting lavatory measurements would be necessary
as there are a variety of different designs in the industry.
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\22\ Specifically, PVA cited 14 CFR 382.71, which states, ``You
must ensure that any replacement or refurbishing of the aircraft
cabin or its elements does not reduce the accessibility of that
element to a level below that specified for new aircraft in this
part.''
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DOT Response
After reviewing the comments on this issue, we do not have
sufficient data to prohibit airlines from further reducing the
footprint of lavatories at this time, though this remains an area of
interest given that the small size of current lavatories is one
significant reason that they are largely inaccessible today. DOT may
revisit this issue in a future rulemaking.
9. Effective Date
Airlines are required to comply with all of the short-term
accessibility improvements discussed above three years after the
effective date of this final rule. This time frame will allow airlines,
aircraft manufacturers, OBW manufacturers, and other stakeholders
sufficient time to develop accessible lavatory interiors, training
programs, accessibility information, compliant OBWs, and appropriate
OBW stowage space.
II. Long-Term Improvements
A. Overview
The Department addressed long-term improvements in the Part 2 NPRM.
The Department proposed to require that airlines expand the size of at
least one lavatory on new single-aisle aircraft with an FAA-
certificated maximum capacity of 125 seats or more. The most
significant issue in the NPRM was the time frame for implementation.
The Department proposed that the rule would apply to new single-aisle
aircraft ordered 18 years after the effective date of the final rule,
or delivered 20 years after the effective date of the final rule (18/
20).\23\ The Department proposed this time frame because it tracked the
ACCESS Advisory Committee's agreement from 2016.\24\ At the same time,
the Department recognized the slow pace of this proposed implementation
period, particularly in light of the roughly six-year delay between the
date of the Committee's agreement (in 2016) and the issuance of the
Part 2 NPRM (in 2022). The Department sought comment and data on
whether and how to accelerate this implementation period for the final
rule.
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\23\ In this document, two numbers separated by a slash refers
to a single implementation period. For example, ``15/17'' would mean
that the rule applies to new single-aisle aircraft ordered 15 years
after the effective date of the final rule and delivered 17 years
after the effective date of the final rule.
\24\ As noted above, during the ACCESS Advisory Committee
process, the Department publicly committed that if the Committee
reached consensus, the Department would propose a rule tracking that
agreement to the extent possible.
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The comment period closed on May 28, 2022. Broadly speaking,
disability rights organizations supported the rule but also urged a
faster implementation period. For example, PVA argued that the
Department should subtract the six-year delay in issuance of the
rulemaking, and therefore that the requirement for larger lavatories
should apply to aircraft ordered 12 years after the effective date of
the final rule or delivered 14 years after the effective date of the
final rule (12/14). The MDA urged the Department to adopt a 10-year
maximum implementation. United Spinal did not propose a specific time
frame but urged the Department to act ``with all deliberate speed.''
Individual commenters universally supported the rule but urged the
Department for a faster implementation period. Certain advocates also
urged the Department to apply the rule to smaller aircraft.
Airlines supported the proposal as written. A4A/IATA argued that if
the Department reduced the implementation period, (1) it should be to
15/17, (2) DOT must fully explain the basis, data, and information that
justifies its deviation from the original proposal, and (3) DOT must
allow stakeholders to submit supplemental comment. Airbus and Boeing
supplied technical comments, with Boeing also supporting the
implementation time frame as written. DOT's responses to these and
other significant issues raised by the commenters are provided below.
B. Section-by-Section Analysis
1. Applicability: Aircraft Size
NPRM and Comments
The Department proposed that larger lavatories would be required on
new single-aisle aircraft with an FAA-certificated maximum capacity of
125 seats or more. The Department reasoned that such aircraft operate a
significant percentage of longer-haul flights, where the in-flight need
for a lavatory would be greatest. The Department sought comment on the
costs and benefits of extending the rule to smaller aircraft. The
Department noted that the Committee considered, but rejected, a rule
that would require accessible lavatories based on the length of the
flight as opposed to the size of the aircraft. The Committee also
rejected other approaches such as phased or tiered approaches to full
accessibility.
[[Page 50030]]
Nevertheless, the Department sought comment on these issues as well.
Two organizations (Open Doors and Disability Rights PA) urged the
Department to apply the rule to all new aircraft. Airlines supported
the proposal as written, contending that this standard captures the
near-total volume of U.S. passenger traffic. A4A and IATA further
stated that aircraft with fewer than 125 seats are only used on short
flights, that requiring accessible lavatories on smaller aircraft would
impose substantial costs that may increase fares and potentially
disrupt service to smaller communities, and that there is no technical
solution for accessible lavatories on these smaller aircraft.\25\
Spirit Airlines also supported the rule as written, and further argued
that it should apply on a fleet-wide basis instead of a route-by-route
basis. Similarly, RAA supported the 125-seat standard and preferred the
seating-capacity approach instead of a scheduled-duration approach.\26\
Boeing commented that the proposed standard is reasonable, noting that
smaller aircraft are operated on shorter routes, there is no current
technical solution for smaller aircraft, and lowering the threshold
would increase compliance costs. Airbus did not comment.
---------------------------------------------------------------------------
\25\ Comment of A4A/IATA at 16-17.
\26\ Comment of RAA at 2-3.
---------------------------------------------------------------------------
DOT Response
The Department is finalizing this aspect of the proposal as
written. We recognize that determining a reasonable threshold for
larger accessible lavatories will always involve a measure of judgment.
On balance, the Department continues to hold the view that a 125-seat
threshold is reasonable because it covers a substantial portion of
lengthy flights. As we explain in the RIA, we chose not to extend the
rule to aircraft with 100 to 124 seats because aircraft of this size
are increasingly rare, leading to uncertainty about the benefits of
extending the rule to such aircraft. In contrast, flights on aircraft
of 125 seats or more made up 58% of all flights and 90% of medium- and
long-haul flights in 2021. We do recognize that in general, as future
aircraft become more efficient, smaller aircraft may increasingly
operate longer flights; if so, the Department may revisit this issue in
the future. Finally, after reviewing the comments, we find essentially
no support for alternative standards of applicability such as scheduled
flight length, or for tiered/phased approaches to implementing fully
accessible lavatories.\27\
---------------------------------------------------------------------------
\27\ A4A and IATA stated that public comment is essential to any
further adjustments to the implementation and further suggests that
it would lead to a lack of consistency for no clear benefit. They
specifically oppose different phases of assisted vs. unassisted
transfer, a view shared by Boeing, who added that such an idea was
specifically rejected in the negotiated rulemaking. Passenger-
advocacy organizations also opposed additional phases or tiers,
largely because they find them unnecessary. NDRN commented that the
current rulemaking supports attendant-accommodating lavatories
without further phases or tiers. United Spinal Association and PVA
shared similar views that there should not be further tiering or
phasing, but if such is implemented, it should not increase the
implementation timeframe.
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2. Lavatory Size: Accommodation of Passenger and Attendant
NPRM and Comments
The Department proposed that for applicable aircraft, airlines must
include at least one lavatory of sufficient size to (1) permit a
qualified individual with a disability equivalent in size to a 95th
percentile male to approach, enter, maneuver within as necessary to use
all lavatory facilities, and leave, by means of the aircraft's on-board
wheelchair, in a closed space that affords privacy equivalent to that
afforded to ambulatory users; and (2) permit an assistant equivalent in
size to a 95th percentile male to assist a qualified individual with a
disability, including assisting in transfers between the toilet and the
aircraft's on-board wheelchair, within a closed space that affords
privacy equivalent to that afforded to ambulatory users.
NDRN commented that the 95th percentile standard was preferable to
the non-specific standard set forth in the rule for twin-aisle aircraft
lavatories, which are inconsistent in terms of accessibility. A4A and
IATA supported the proposal, noting that it tracked the Committee's
agreement. Airbus supported the proposal, noting that the 95th
percentile overweight/tall U.S. male is an appropriate reference
measure for an assisted transfer within the limited space of a
lavatory.\28\ Boeing argued that the 95th percentile standard should be
placed in guidance, rather than regulatory text, noting that DOT took
this approach with respect to the size of twin-aisle aircraft. Boeing
also urged the Department to add that airlines may use curtains to
create the closed space that affords privacy equivalent to that
afforded to ambulatory users.
---------------------------------------------------------------------------
\28\ Airbus also asked if the Department truly intended to
require a space that accommodates both a 95th percentile male
passenger and a 95th percentile male attendant at the same time,
noting that this ``worst case scenario'' would be extremely rare. We
believe that the rule text is sufficiently clear regarding the
intended lavatory size and agree that the scenario described by
Airbus is likely to be rare.
---------------------------------------------------------------------------
DOT Response
After reviewing the comments, the Department is finalizing the
proposed rule as written. We have chosen to place size standards in the
rule text, rather than in guidance, because those standards are
necessary to ensure that the lavatory is of sufficient size to
accommodate larger passengers and larger attendants alike. We have not
adopted Boeing's suggestion that in the long term, airlines should be
permitted to use curtains to help create a substantially equivalent
privacy space. Such visual barriers may be necessary in the short term
when lavatories are not required to be expanded beyond current
measurements. However, such a solution would be inappropriate in the
long term, given that the Department is providing airlines and aircraft
manufacturers ample time to engineer and develop fully compliant
solutions.
3. Lavatory Interiors
NPRM and Comments
In the Part 2 NPRM, the Department included for reference its
proposed rules from the Part 1 NPRM relating to lavatory interiors. The
Department did not propose new rules for lavatory interiors that would
apply to the larger lavatories described in the Part 2 NPRM.
PVA noted that passengers with disabilities should be able to
access flush controls, call buttons, the lavatory door, the sink, paper
towels, and trash dispenser from a seated position. A4A supported the
proposal as written. Boeing noted that larger lavatories may produce
situations where certain controls may not be reachable from a seated
position (on the toilet or on the OBW).
DOT Response
The Department is adopting the provisions regarding lavatory
interiors as described above in the discussion of the Part 1 NPRM. In
response to PVA's comment, we anticipate that passengers with
disabilities will be able to access, from a seated position, the
components that they described.
4. Implementation: Effective Date and Retrofitting
NPRM and Comments
In keeping with its commitment to the ACCESS Advisory Committee,
the Department proposed to require accessible lavatories on new single-
aisle aircraft that are: (1) ordered 18 years after the effective date
of the final rule;
[[Page 50031]]
(2) delivered 20 years after the effective date of the final rule; or
(3) part of a new type-certificated design filed with the FAA or a
foreign carrier's safety authority one year after the effective date of
the final rule.\29\ The Department also proposed that airlines not be
required to retrofit existing aircraft to install larger lavatories.
This proposal was consistent not only with the ACCESS Advisory
Committee's agreement, but also with existing part 382.\30\ The
Department asked extensive questions regarding whether and how to
accelerate this time frame for the final rule, along with the costs and
benefits of doing so.
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\29\ Most newly manufactured aircraft are based on an existing
type-certificated design that has already been filed with the FAA.
The intent of the ``new type-certificated design'' provision is to
require fully accessible lavatories as part of any newly designed
aircraft, so long as the design is filed more than one year after
the effective date of the rule. A4A and IATA asked the Department to
clarify that this provision ``is referring to a clean sheet design
(i.e., new TCDS and pursuant to 14 CFR 21.19), not aircraft that are
already type certificated (e.g., B737-MAX) with amended type
certification programs.'' We believe that the rule is adequately
clear that this provision refers to clean sheet designs.
\30\ See 14 CFR 382.63 (``You are not required to retrofit cabin
interiors of existing aircraft to comply with the requirements of
this section. However, if you replace a lavatory on an aircraft with
more than one aisle, you must replace it with an accessible
lavatory.'')
---------------------------------------------------------------------------
As noted above, disability advocates argued for a more accelerated
implementation period. PVA and NDRN stated that the Department should
deduct the 6-year gap between the Committee's agreement and the Part 2
NPRM, for a current implementation period of 12/14 rather than 18/20.
They argued that this reduction would meet the parties' reasonable
expectations at the time the agreement was formed. The MDA urged the
Department to adopt a 10-year maximum implementation. United Spinal did
not propose a specific time frame but urged the Department to act
``with all deliberate speed,'' including a requirement for retrofitting
when an aircraft is taken out of service.\31\ Similarly, advocacy
organizations including AARP, FlyersRights, Disability Rights
Pennsylvania, Flying Disabled, and Dementia-Friendly Airports Working
Group all argued for significantly accelerated implementation. Some
urged retrofitting, and others noted that DOT required accessible
lavatories on twin-aisle aircraft within only two years from the date
of that rule. FlyersRights argued that the larger lavatories should
also be required on aircraft manufactured pursuant to amended type
certificates filed three years after the effective date of the final
rule.
---------------------------------------------------------------------------
\31\ Comment of United Spinal at 2 (``DOT should require
accessible lavatories be installed in all single-aisle aircraft that
are taken out of service for any other changes to the cabin.'')
---------------------------------------------------------------------------
Airlines supported the proposed rule as written. A4A/IATA posited
that the six-year delay identified by PVA was a result of the
Department's choices and not those of the stakeholders. A4A/IATA
opposed any reduction in the rule's proposed timing and asked for a
full explanation of DOT's justification for any accelerated
implementation, as well as additional public comment if such a
reduction would occur. With those qualifications, A4A/IATA indicated
that it was open to supporting a 15/17 implementation period. Spirit
Airlines described the timeline as proposed by the Department as
``reasonable.''
As for aircraft manufacturers, Boeing asked the Department to honor
the timeline of the negotiated rulemaking.\32\ Airbus did not comment
on the implementation period but noted that many of its aircraft are
already accessible, with more on the way to delivery.
---------------------------------------------------------------------------
\32\ Boeing provided proprietary information regarding the
options that it has explored and is currently exploring for
providing accessible lavatory solutions, along with the advantages
and disadvantages of those options as viewed by its airline
customers.
---------------------------------------------------------------------------
DOT Response
After careful consideration of all of the comments, the Department
concludes that a faster implementation period is both necessary and
appropriate. First, in our view, requiring accessible lavatories on an
18/20 implementation period would penalize passengers with disabilities
and other stakeholders who would benefit from the rule, for the
Department's own delay in finalizing the rule. The Department proposed
18/20 years for the implementation period to honor the promise to
stakeholders during the negotiated rulemaking. However, given the
technical feasibility of having accessible lavatories earlier and the
Department's position that accessible toileting is a basic human need
and right, the Department determined that it is unacceptable to have
individuals with disabilities wait another 18/20 years after the
effective date of the rule. In our view, reducing the implementation
period by six years would be the minimum that the Department could do
to maintain the reasonable expectations of the stakeholders as
expressed in the 2016 ACCESS Advisory Committee's Term Sheet. Given the
significance of accessible lavatories to passengers with disabilities
and other stakeholders, it is also appropriate to do more than the bare
minimum. The Department is mandating implementation on the fastest
basis that is both realistic and economically feasible. After reviewing
the record of the ACCESS Advisory Committee and the comments received
to the NPRM, we believe that a 10/12 implementation period for newly-
manufactured aircraft is realistic from a technological, engineering,
and manufacturing perspective. This is particularly true given that the
core lavatory specifications found in this final rule are essentially
unchanged from the 2016 Term Sheet and the 2021 NPRM. In short, we are
confident that technical solutions do exist, and can be implemented
within a 10/12 time frame. This time frame also allows airlines and
manufacturers time to satisfy existing orders and deliveries without
interruption.
So far as we can determine, the primary driver of industry's
concern is cost, in the form of lost revenue from removal of seats and/
or impingement of a larger lavatory into space that could be used for
galleys (food and beverage service).\33\ As we explain in our
Regulatory Impact Analysis, those costs may be recoverable in the form
of higher air fares. Moreover, while the Department could reduce those
burdens by extending the implementation period, any such extension will
necessarily impose burdens on passengers with disabilities who will be
forced to wait longer to enjoy the basic human dignity of being able to
use a lavatory on a long-haul flight.
---------------------------------------------------------------------------
\33\ During the Access Advisory Committee proceedings, industry
stakeholders expressed concern about mandating accessible lavatories
in the middle of an aircraft's ordering/manufacturing cycle, and
maintaining fleet commonality, (i.e., realizing the considerable
cost savings that arise from having predictable features among an
aircraft's fleet). See https://www.transportation.gov/office-general-counsel/negotiated-regulations/3rd-plenary-meeting-%E2%80%93-presentation-airplane-life-cycle. We have not seen
evidence that a 10/12 implementation period would significantly
impact either of these concerns.
---------------------------------------------------------------------------
Our economic analysis reflects that with a 10/12 implementation
period, that net revenue impacts to airlines will range from a loss of
1.6 percent to a gain of less than one percent. Airfare increases could
range from zero to 3 or 4 percent of baseline airfares, depending on
the ability of airlines to pass on increased costs through increases in
airfare. These are relatively small impacts considering access to
toilets is a basic human need and should be available to all.
We have considered the even more aggressive solution of
retrofitting, but continue to hold the view that retrofitting should
not be required
[[Page 50032]]
because of cost uncertainties. Similarly, we have not required
accessible lavatories on amended type-certificated aircraft earlier
than 10/12 because this could again require either retrofitting or
early replacement of existing aircraft, which would add significant
costs or may not be technically feasible due to the production cycle of
new aircraft. We will continue to require accessible lavatories on new
type-certificated (clean sheet) designs filed with the FAA or a foreign
safety authority more than 1 year after the effective date of the
rule.\34\
---------------------------------------------------------------------------
\34\ During the Access Advisory Committee proceedings,
stakeholders learned that it took Bombardier approximately 20 years
to manufacture its C-series aircraft from a clean-sheet design that
included an accessible lavatory. It does not logically follow, that
it necessarily takes 20 years to implement accessibly lavatory
solutions on existing type-certificated aircraft. As we also
explained in the NPRM, airline customers largely chose not to select
the accessible-lavatory option on the C-Series (now Airbus A220)
aircraft that they ordered.
---------------------------------------------------------------------------
III. Severability
The overall purpose of this rule is to improve accessibility of
lavatories on single-aisle aircraft in both the short term and the long
term. The short-term elements include improvements to lavatory
interiors, information requirements, training requirements, required
procedures for sharps and bio-waste, removal of the International
Symbol of Accessibility, improvements to the aircraft's OBW, and a
requirement for a visual barrier under certain circumstances. All of
these measures are designed to improve accessibility in the time period
before the size of the lavatories themselves must be expanded. The
Department finds that these short-term improvements can operate
independently of the long-term measures to increase the size of the
lavatory. Moreover, while the short-term measures form a suite of
improvements, they can each function separately from each other. For
example, the required standards for an accessible OBW can function
separately from the required improvements to existing lavatory
interiors.
The long-term improvements include a lavatory size requirement for
the passenger onboard an OBW, a lavatory size requirement for the
passenger's attendant, and a requirement that airlines provide such
lavatories on new single-aisle aircraft within a 10/12 time frame as
discussed above. These measures can function separately from each other
and are intended to operate as such. In the event that a court were to
invalidate one or more of this final rules unique provisions, the
Department's intent is that the remaining provisions should remain in
effect to the greatest extent possible.
Regulatory Analyses and Notices
A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), Executive
Order 14094 (Modernizing Regulatory Review) and DOT Regulatory Policies
and Procedures
This final rule has been determined to be significant under section
3(f)(1) of Executive Order 12866 (``Regulatory Planning and Review''),
as amended by Executive Order 14094, (``Modernizing Regulatory
Review''),\35\ and under the Department of Transportation's Regulatory
Policies and Procedures because of its considerable interest to the
disability community and the aviation industry. It has been reviewed by
the Office of Management and Budget (OMB) under Executive Order 12866.
A summary of the Department's economic analysis is provided in the
paragraphs to follow, and the complete Regulatory Impact Analysis is
available in the docket for this rulemaking.
---------------------------------------------------------------------------
\35\ 88 FR 21879 (Apr. 11, 2023).
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The objective of the rule is to ensure that passengers with
disabilities not only can access lavatories on single-aisle aircraft,
but also have privacy and dignity while using the lavatory during air
travel. As such, this final rule addresses a human rights issue and
promotes freedom to travel for people with disabilities. The lack of
accessible lavatories on single-aisle aircraft makes air travel
difficult for passengers with disabilities, especially if they use
wheelchairs and need help transferring to a lavatory toilet. Some of
the passengers, knowing that they will not be able to use the lavatory
during a flight, may dehydrate themselves or even withhold bodily
functions so that they do not need to urinate. These actions can cause
adverse health effects, including increased chances of urinary tract
infections. Other passengers may use adult diapers or catheters, which
they may find degrading and uncomfortable. Some wheelchair users avoid
flying altogether.
The Department has determined that regulation is necessary because
society cannot count on the private market to provide accessible
lavatories reliably. The provision of accessible lavatories involves
resource costs, as evident in the airlines' comments on the proposed
rule and their reluctance to comply with the terms they agreed to
during a negotiated rulemaking. Moreover, the lack of reliable
information on accessibility means that consumers do not have an
adequate mechanism for expressing their preferences when they have a
choice between flights with or without accessible lavatories. This
final rule includes requirements that airlines provide accurate and
consistent accessibility information under a more immediate timeframe
to address the information problem. Accurate information benefits
passengers with disabilities as well as those who simply would prefer
additional space to perform routine lavatory functions if presented
with the option.
The primary benefits of the rule are due to expected improvements
in the quality of travel experience for persons with disabilities who
currently participate in the market for air travel. In addition,
greater convenience and accessibility could lead passengers with
disabilities to increase their use of air travel, either by switching
from slower modes of travel or by making more long-distance trips.
Assigning monetary values to such basic human rights as the ability to
relieve oneself involves intangible dimensions that are inherently
difficult to quantify. These values are not necessarily observed in the
market. Nevertheless, the Department gives full consideration to such
unquantified and non-monetized benefits in its evaluation of this this
rule. These attributes interact with and can be difficult to
empirically distinguish from other aspects, including convenience or
reductions in the amount of time needed for travel planning or for
travel itself, that are easier to value. Using an estimate of
passengers' willingness to pay to avoid inconvenience, the benefits
analysis applies a value of $194 one-way trip to monetize benefits of
accessible lavatories to passengers with disabilities.
The cost analysis is premised on the assumption that installing an
accessible lavatory will require airlines, on average, to eliminate
three passenger seats per aircraft. The three-seat loss assumption
originated from airline industry analysis presented early in the
rulemaking proceedings, and the Department recognizes that there will
be variation in impacts across airlines. The Department lacks
sufficient data to support an alternative assumption.
Table 1 summarizes the results of the analysis and the potential
economic effects of the rule over the analysis timeframe, 2023-2067.
Benefits analyzed over 2023-2067 are $1 billion at a 3% discount rate
or $571 million at a 7% discount rate. The loss of three passenger
seats per aircraft results in societal costs that include lost producer
[[Page 50033]]
surplus due to the reduction in the number of passengers transported
and the value of lost consumption. There also are resource costs due to
manufacturing and designing improved lavatories and on-board
wheelchairs as well as for flight attendant training. The cost analyzed
over 2023 through 2067, are $459 million at a 3% discount rate or $228
million at a 7% discount rate. The rule also could result in a transfer
from passengers to airlines due to airlines increasing airfares in
response to the reduced supply of seats. The annualized transfers
estimated for the primary analysis are $2.2 billion at a 3% discount
rate or $1.1 billion at a 7% discount rate.
Passengers might experience economic effects in the form of
increased airfares. The primary analysis estimates that in 2060 when
all aircraft have accessible lavatories, domestic passengers would pay
an additional $2.54 per ticket on average and international passengers
would pay an additional $12.28. Passengers flying in earlier years,
when some aircraft would not have accessible lavatories and reduced
seating, would experience smaller airfare increases. The increase in
ticket prices and resulting transfer from passengers offsets the direct
revenue loss to airlines. Analysis of potential revenue and price
effects suggests that relative to the baseline, net revenue impacts to
airlines will range from a loss of 1.6 percent loss to a gain of less
than one percent. Airfare increases could range from zero to 3 or 4
percent of baseline airfares, depending on the ability of airlines to
pass on increased costs through increases in airfare. Segments of the
market characterized by a low price elasticity of demand will
experience the largest potential fare increases, while the most price
sensitive passengers will likely experience little to no airfare
increases. In any case, the Department does not view compromises in
accessibility as an acceptable mechanism for airlines to achieve or
maintain lower prices in the market for air travel when the solution is
technically and economically feasible.
Based upon the economic analysis and other information received
from stakeholders throughout the rulemaking, the Department finds that
the benefits of the final rule justify its costs. While the benefits of
the rule have not been monetized, the available information
sufficiently demonstrates that the status quo is untenable for
passengers with disabilities who want or need to travel by air. In the
context of the market for air travel and the airline industry, the
estimated costs and expected impacts to airfares and industry revenues
are reasonable, especially when viewed against the lengthy lead time
for compliance and that industry agreed to make the accessibility
improvements reflected in the final rule in 2016. These facts
considered as a whole provide the basis for the Department's reasoned
determination that the benefits of the rule justify its costs.
Table 1--Summary of Economic Impacts, 2023-2067
[2021 dollars, millions]
----------------------------------------------------------------------------------------------------------------
Total present Total present
Item value (3% Annualized (3% value (7% Annualized (7%
discount) discount) discount) discount)
----------------------------------------------------------------------------------------------------------------
Benefits.................................... $21,166 $1,019 $7,282 $571
----------------------------------------------------------------------------------------------------------------
Costs:
Lost producer surplus................... 8,997 433 2,733 214
Value of lost consumption (deadweight 459 22 127 10
loss)..................................
Resource costs for lavatories, onboard 94 4 48 4
wheelchairs, and flight attendant
training...............................
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Total societal costs................ 9,549 459 2,908 228
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Net benefits........................ 11,616 560 4,374 343
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Other economic effects:
Transfers from passengers to airlines... 44,785 2,157 13,562 1,063
----------------------------------------------------------------------------------------------------------------
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). Relative to typical
airlines' operating costs and revenues, the impact is expected to be
nonsignificant. We received no comment on the preliminary finding of
nonsignificance or, more generally, the potential impact of this
rulemaking on small entities. Therefore, the Department certifies that
this final rule will not have a significant impact on a substantial
number of small entities.
C. Executive Order 13132 (Federalism)
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule does not include any provision that: (1) 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 13084
This rulemaking has been analyzed in accordance with the principles
and criteria contained in Executive Order 13084 (``Consultation and
Coordination with Indian Tribal Governments''). Because this rulemaking
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
13084 do not apply.
[[Page 50034]]
E. Paperwork Reduction Act
This final rule adds two new collections of information that would
require approval OMB under the Paperwork Reduction Act of 1995 (Pub. L.
104-13, 44 U.S.C. 3501 et seq.). The rule requires carriers operating
at least one aircraft with an FAA-certificated maximum seating capacity
of 60 or more to provide information, on request, to qualified
individuals with a disability or persons making inquiries on their
behalf concerning, at a minimum, the accessibility features of aircraft
lavatories set forth in the rule. A ``carrier'' is defined as a U.S.
citizen or foreign citizen that undertakes, directly or indirectly, or
by a lease or any other arrangement, to engage in air transportation.
This information must be available on the carrier's website (if the
carrier markets tickets to the public). The information must also be
provided 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. Carriers must
provide the information required by this rule three years after the
effective date of the rule.
Under the Paperwork Reduction Act, before an agency submits a
proposed collection of information to OMB for approval, it must first
publish a document in the Federal Register providing notice of the
proposed information collection and a 60-day comment period, and
otherwise consult with members of the public and affected agencies
concerning each proposed collection of information. The Department has
not yet published a notice of the proposed information collection
because the information will not be required until three years after
the effective date of the final rule.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1501,
requires agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditures by States, local
or Tribal governments, or by the private sector, of $100 million or
more (adjusted annually for inflation with base year of 1995) in any
one year. The 2021 threshold after adjustment for inflation is $165
million, using the Implicit Price Deflator for the Gross Domestic
Product. The assessment may be included in conjunction with other
assessments, as it is here.
The final rule is unlikely to result in expenditures by State,
local, or Tribal governments of more than $100 million annually.
However, it is estimated to result costs to the airline industry that
may exceed $165 million annually. The estimated costs are discussed in
the Department's Regulatory Impact Analysis.
G. National Environmental Policy Act
The Department has analyzed the environmental impacts of this
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).\36\ 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.\37\ Paragraph 4.c.6.i of
DOT Order 5610.1C categorically excludes ``[a]ctions relating to
consumer protection, including regulations.'' Because this rulemaking
relates to ensuring both the nondiscriminatory access to air
transportation for consumers with disabilities, as well as the safe
transport of the traveling public, this rulemaking is a consumer
protection rulemaking. The Department does not anticipate any
environmental impacts, and there are no extraordinary circumstances
present in connection with this rulemaking.
---------------------------------------------------------------------------
\36\ See 40 CFR 1508.4.
\37\ Id.
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H. Congressional Review Act
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (the Congressional Review Act), OMB's Office of
Information and Regulatory Affairs has found that this rule falls
within the scope of 5 U.S.C. 804(2).
List of Subjects in 14 CFR Part 382
Air Carriers, Civil rights, Consumer protection, Individuals with
Disabilities, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Department of
Transportation amends 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 continues to read as follows:
Authority: 49 U.S.C. 41702, 41705, 41712, and 41310.
Subpart C--Information for Passengers
0
2. In Sec. 382.41, revise paragraph (e) to read as follows:
Sec. 382.41 What flight-related information must carriers provide to
qualified individuals with a disability?
* * * * *
(e) Information regarding accessibility of lavatories (see Sec.
382.63(h)); and
* * * * *
Subpart E--Accessibility of Aircraft
0
3. 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 October 2, 2026,
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. You must comply with these requirements to the
extent that such accessible components are reasonably
[[Page 50035]]
available and certificated for the applicable aircraft type. You are
not responsible for acquiring lavatory controls and dispensers with an
accessible feature described above so long as you inform the Department
of their unavailability despite your reasonable efforts.
(5) The lavatory door sill must provide minimum obstruction to the
passage of the on-board 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. Visual barriers are not an acceptable
method of providing privacy with respect to lavatories covered in Sec.
382.64.
(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 October 2, 2026, 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, transfer features, and use of the aircraft's on-board
wheelchair, and regarding the accessibility features of the lavatory,
including any assembly or modifications to accessibility features.
(2) You must provide information, on request, to qualified
individuals with a disability or persons making inquiries on their
behalf concerning, at a minimum, the accessibility features of aircraft
lavatories set forth in paragraph (f) of this section. This information
must also be available on the carrier's website (if the carrier markets
tickets to the public), 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 on-board wheelchair to the toilet seat
without requiring the use of an assistant). You must include the
International Symbol of Accessibility if the lavatory is capable of
providing a seated independent transfer.
(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
October 2, 2026.
0
4. Section 382.64 is added to read as follows:
Sec. 382.64 What are the requirements for large accessible lavatories
on single-aisle aircraft?
(a) As a carrier, you must ensure that all new single-aisle
aircraft that you operate with an FAA-certificated maximum seating
capacity of 125 seats or more in which lavatories are provided, shall
include at least one lavatory of sufficient size to:
(1) Permit a qualified individual with a disability equivalent in
size to a 95th percentile male to approach, enter, maneuver within as
necessary to use all lavatory facilities, and leave, by means of the
aircraft's on-board wheelchair, in a closed space that affords privacy
equivalent to that afforded to ambulatory users; and
(2) Permit an assistant equivalent in size to a 95th percentile
male to assist a qualified individual with a disability, including
assisting in transfers between the toilet and the aircraft's on-board
wheelchair, within a closed space that affords privacy equivalent to
that afforded to ambulatory users.
(b) You are not required to retrofit cabin interiors of existing
single-aisle aircraft to comply with the requirements of paragraph (a)
of this section.
(c) As a carrier, you must comply with the requirements of this
section with respect to new aircraft that you operate that were
originally ordered after October 3, 2033, or delivered after October 2,
2035, or are part of a new type-certificated design filed with the FAA
or a foreign carrier's safety authority after October 2, 2024.
0
5. 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 October 2, 2026,
and on which lavatories are provided include an on-board wheelchair
meeting the requirements of this section. The Access Board's published
nonbinding technical assistance on aircraft on-board wheelchairs may be
relied upon for compliance with these requirements.
(1) The on-board wheelchair must be maneuverable both forward and
backward through the aircraft aisle by an attendant.
(2) The height of the on-board wheelchair seat must align with the
height of the aircraft seat so as to facilitate a safe transfer between
the on-board wheelchair seat and the aircraft seat.
(3) The on-board 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 on-board wheelchair must be
capable of being secured such that they do not move while the occupied
on-board wheelchair is being maneuvered.
(4) The on-board wheelchair shall be designed not to tip or fall in
any direction under normal operating conditions when occupied for use.
(5) The on-board wheelchair must have a padded seat and backrest
and must be free of sharp or abrasive components.
(6) The on-board 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.
(7) The on-board wheelchair must be maneuverable in a forward
orientation partially into at least one aircraft lavatory to permit
transfer from the on-board wheelchair to the toilet.
(8) The on-board wheelchair must be maneuverable into the aircraft
lavatory without protruding into the clear space
[[Page 50036]]
needed to completely close the lavatory door.
(9) The on-board wheelchair must prominently display instructions
for proper use.
(f) You are not required to expand the existing FAA-certificated
on-board wheelchair stowage space of the aircraft, or modify the
interior arrangement of the lavatory or the aircraft, in order to
comply with this section. However, if the on-board wheelchair that you
obtain does not fit within the original stowage space, and another
space exists (e.g., an overhead compartment) where the on-board
wheelchair could fit consistent with FAA safety standards, then you
must stow the on-board wheelchair in that space and must request any
necessary FAA approval to do so. You are not required to make the on-
board wheelchair available if the pilot-in-command determines that
safety or security considerations preclude its use.
(g) You must acquire an OBW that complies with as many requirements
set forth in paragraph (e) of this section as are available. You are
not responsible for the failure of third parties to develop and deliver
an on-board wheelchair that complies with a requirement set forth in
paragraph (e) of this section so long as you make reasonable efforts to
purchase such an OBW and inform the Department at the address cited in
Sec. 382.159 that an on-board wheelchair meeting that requirement is
unavailable despite your reasonable efforts. If you cannot provide a
wheelchair meeting requirement (e)(8) of this section despite your
reasonable efforts, then you must provide, on request, the use of the
visual barrier (e.g., a curtain) described in Sec. 382.63(f)(7) to
enable the passenger to perform lavatory functions in privacy.
(h) If you replace an on-board wheelchair on aircraft with an FAA-
certificated maximum seating capacity of 125 or more after October 2,
2026, then you must replace it with an on-board wheelchair that meets
the standards set forth in paragraph (e) of this section.
Issued this 25th day of July, 2023, in Washington, DC.
Peter Paul Montgomery Buttigieg,
Secretary.
[FR Doc. 2023-16178 Filed 7-31-23; 8:45 am]
BILLING CODE 4910-9X-P
