Proposed Rule2022-05869
Accessible Lavatories on Single-Aisle Aircraft: Part 2
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 28, 2022
Issuing agencies
Transportation Department
Abstract
The U.S. Department of Transportation (Department or DOT) proposes in this notice of proposed rulemaking (NPRM) to require airlines to ensure that at least one lavatory on new single-aisle aircraft with 125 or more passenger seats is large enough to permit a passenger with a disability (with the help of an assistant, if necessary) to approach, enter, and maneuver within the aircraft lavatory, as necessary, to use all lavatory facilities and leave by means of the aircraft's on-board wheelchair.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 59 (Monday, March 28, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 59 (Monday, March 28, 2022)]
[Proposed Rules]
[Pages 17215-17225]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-05869]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 382
[Docket No. DOT-OST-2021-0137]
RIN 2105-AE89
Accessible Lavatories on Single-Aisle Aircraft: Part 2
AGENCY: Office of the Secretary (OST), U.S. Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Transportation (Department or DOT)
proposes in this notice of proposed rulemaking (NPRM) to require
airlines to ensure that at least one lavatory on new single-aisle
aircraft with 125 or more passenger seats is large enough to permit a
passenger with a disability (with the help of an assistant, if
necessary) to approach, enter, and maneuver within the aircraft
lavatory, as necessary, to use all lavatory facilities and leave by
means of the aircraft's on-board wheelchair.
DATES: Comments should be filed by May 27, 2022. Late-filed comments
will be considered to the extent practicable.
ADDRESSES: You may file comments identified by docket number DOT-OST-
2021-0137 by any of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and follow the online instructions for submitting
comments.
<bullet> Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave. SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
<bullet> Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Ave. SE, between 9:00 a.m. and 5:00 p.m. ET,
Monday through Friday, except Federal holidays.
<bullet> Fax: (202) 493-2251.
Instructions: You must include the agency name and docket number
DOT-OST-2021-0137 or the Regulation Identifier Number (RIN) for the
rulemaking at the beginning of your comment. All comments received will
be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any
personal information provided.
Confidential Business Information (CBI): CBI is commercial or
financial information that is both customarily and actually treated as
private by its owner. Under the Freedom of Information Act (FOIA) (5
U.S.C. 552), CBI is exempt from public disclosure. If your comments
responsive to this NPRM contain commercial or financial information
that is customarily treated as private, that you actually treat as
private, and that is relevant or responsive to this NPRM, it is
important that you clearly designate the submitted comments as CBI.
Please mark each page of your submission containing CBI as ``PROPIN''
to indicate that it contains proprietary information. DOT will treat
such marked submissions as confidential under the Freedom of
Information Act (FOIA), and they will not be placed in the public
docket of this NPRM. Submissions containing CBI should be sent to
Robert Gorman, Senior Trial Attorney, Office of Aviation Consumer
Protection, U.S. Department of Transportation, 1200 New Jersey Ave. SE,
Washington, DC 20590, <a href="/cdn-cgi/l/email-protection#02706d606770762c656d706f636c42666d762c656d74"><span class="__cf_email__" data-cfemail="b1c3ded3d4c3c59fd6dec3dcd0dff1d5dec59fd6dec7">[email protected]</span></a> (email). Any commentary
that DOT receives which is not specifically designated as CBI will be
placed in the public docket for this rulemaking.
Privacy Act: Anyone can search the electronic form of all comments
received in any of our dockets by the name of the individual submitting
the comment (or signing the comment, if submitted on behalf of an
association, business, labor union, etc.). You may review DOT's
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78), or you may visit <a href="https://www.transportation.gov/privacy">https://www.transportation.gov/privacy</a>.
Docket: For access to the docket to read background documents or
comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or to the street
address listed above. Follow the online instructions for accessing the
dockets.
FOR FURTHER INFORMATION CONTACT: Robert Gorman, Senior Trial Attorney,
Office of Aviation Consumer Protection, U.S. Department of
Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590, 202-366-
9342, 202-366-7152 (fax), <a href="/cdn-cgi/l/email-protection#3f4d505d5a4d4b1158504d525e517f5b504b11585049"><span class="__cf_email__" data-cfemail="d7a5b8b5b2a5a3f9b0b8a5bab6b997b3b8a3f9b0b8a1">[email protected]</span></a> (email). You may also
contact Blane Workie, Assistant General Counsel, 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),
<a href="/cdn-cgi/l/email-protection#f99b9598979cd78e968b92909cb99d968dd79e968f"><span class="__cf_email__" data-cfemail="b4d6d8d5dad19ac3dbc6dfddd1f4d0dbc09ad3dbc2">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
Like all individuals, those with disabilities rely on
transportation for all aspects of their lives. Transportation connects
individuals to jobs and services, and it opens the door to opportunity.
The Department is committed to removing transportation barriers that
exist for people with disabilities. This includes challenges posed by
inaccessible lavatories on single-aisle aircraft.
The following proposed rule is the result of a negotiated
rulemaking in 2016 that was produced through the consensus of multiple
disability organizations, a wide variety of aviation industry members,
and other stakeholders. As we explain below, the Department made a
commitment to the stakeholders that if they reached consensus on the
terms of a rulemaking, the Department would act in good faith to issue
a proposed rule that reflects those terms as closely as possible. This
NPRM is the product of the Department's commitment to stakeholders
during that process.
At the same time that DOT honors its past commitments, the
Department also recognizes that it is the affirmative responsibility of
the Federal Government to advance equity, civil rights, and equal
opportunity for all individuals, including individuals with
disabilities.\1\ The Department has concerns that the considerable
length of time that this NPRM proposes to allow for much-needed
accessibility improvements may not advance equity, civil rights or
equal opportunity for persons with disabilities quickly enough. Over 25
million Americans have mobility issues that may require
[[Page 17216]]
accommodations when flying.\2\ As the U.S. population ages (with an
estimated 30 percent of the population being over age 65 by 2030), it
is expected that the need for accommodating passengers with mobility
impairments will only increase.\3\ As the Department moves forward with
this rulemaking, including the drafting of any final rule, the
Department will firmly bear in mind its commitment to equity, including
seeking information relating to whether these accessibility
improvements can be implemented more quickly than currently proposed.
The Department now presents these terms for public comment and further
recommendations that will enhance the rule and access of passengers
with disabilities to the National Airspace System.
---------------------------------------------------------------------------
\1\ See Executive Order 13985 (January 20, 2021), Section 1.
\2\ See U.S. Government Accountability Office, ``Aviation
Consumer Protection: Few U.S. Aircraft Have Lavatories Designed to
Accommodate Passengers with Reduced Mobility'' (GAO-20-258),
available at <a href="https://www.gao.gov/assets/710/703687.pdf">https://www.gao.gov/assets/710/703687.pdf</a>, at 5.
\3\ Id. at 6.
---------------------------------------------------------------------------
A. Statutory Authority
The Air Carrier Access Act (ACAA), 49 U.S.C. 41705, prohibits
discrimination in airline service on the basis of disability by U.S.
and foreign air carriers. However, it does not specify how U.S. and
foreign air carriers must act to avoid such discrimination or how the
Department should regulate with respect to these issues. The
Department's authority to regulate nondiscrimination in airline service
is found in the ACAA in conjunction with its rulemaking authority under
49 U.S.C. 40113, which states that the Department may take action that
it considers necessary to carry out this part, including prescribing
regulations. The Department, through reasonable interpretation of its
statutory authority, has issued regulations that require carriers to
provide nondiscriminatory service to individuals with disabilities.
B. Need for a Rulemaking
Single-aisle aircraft are increasingly being 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 77 percent in 1997 to 89
percent in 2018.\4\ These flights can last four or more hours. At
present, there is no requirement that airlines provide accessible
lavatories on single-aisle aircraft. Airlines are required to provide
information on whether the aircraft expected to make a particular
flight has an accessible lavatory to an individual with a disability
who states that he or she uses a wheelchair for boarding.\5\ The
inability to access and use the lavatory on long flights can present
significant challenges to passengers with disabilities and poses a
deterrent for some passengers with disabilities to traveling by air,
limiting their independence and freedom to travel.
---------------------------------------------------------------------------
\4\ TS T-100 All Segment data, retrieved December 20, 2018 from
<a href="https://www.transtats.bts.gov/Tables.asp?DB_ID=111&DB_Name=Air%20Carrier%20Statistics%20%28Form%2041%20Traffic%29-%20All%20Carriers&DB_Short_Name=Air%20Carriers">https://www.transtats.bts.gov/Tables.asp?DB_ID=111&DB_Name=Air%20Carrier%20Statistics%20%28Form%2041%20Traffic%29-%20All%20Carriers&DB_Short_Name=Air%20Carriers</a>.
\5\ 14 CFR 382.41.
---------------------------------------------------------------------------
On January 2, 2020, the Department published an NPRM titled
``Accessible Lavatories on Single-Aisle Aircraft: Part 1'' (Part 1
NPRM).\6\ The Part 1 NPRM proposed various accessibility improvements
for lavatories on single-aisle aircraft, but did not propose to expand
the size of the lavatories themselves. This action--Accessible
Lavatories on Single-Aisle Aircraft: Part 2--would substantially
increase access for passengers with disabilities because it proposes to
increase the size of lavatories on large single-aisle aircraft.
---------------------------------------------------------------------------
\6\ 85 FR 27 (January 2, 2020); RIN 2105-AE88. Information on
the Part 1 NPRM can be found at <a href="http://www.regulations.gov">www.regulations.gov</a>; Docket DOT-OST-
2019-0180.
---------------------------------------------------------------------------
C. History of Regulations Governing Accessible Lavatories on Aircraft
In 1988, the Department conducted a negotiated rulemaking to
develop ACAA regulations. The negotiated rulemaking included
representatives of the airline industry, the disability community, and
other stakeholders.\7\ In March 1990, the Department issued final ACAA
regulations, found at 14 CFR part 382.
---------------------------------------------------------------------------
\7\ 53 FR 23574 (June 22, 1988).
---------------------------------------------------------------------------
The 1990 ACAA rule required twin-aisle aircraft to have at least
one accessible lavatory, if lavatories were installed on the aircraft.
In the context of twin-aisle aircraft, an accessible lavatory is one
that: (1) Permits a qualified individual with a disability to enter,
maneuver as necessary to use all lavatory facilities, and leave, by
means of the aircraft's on-board wheelchair (OBW); \8\ (2) affords
privacy to persons using the OBW equivalent to that afforded ambulatory
users; and (3) provides door locks, accessible call buttons, grab bars,
faucets and other controls, and dispensers usable by qualified
individuals with a disability, including wheelchair users and persons
with manual impairments.\9\ The 1990 ACAA rule, as written, does not
expressly require the lavatory to be large enough to permit a passenger
to enter the lavatory with an assistant who can help the individual
transfer from the OBW to and from the toilet seat (a ``dependent
transfer'' or ``assisted transfer'').
---------------------------------------------------------------------------
\8\ An OBW is a wheelchair that is used to transport a person
with a disability between the aircraft seat and the lavatory. OBWs
are stowed onboard the aircraft. An OBW should not be confused with
an aisle chair, which is used for enplaning and deplaning. Aisle
chairs transport passengers between the jet bridge and the
passenger's seat on the aircraft. Aisle chairs are generally kept in
the airport, rather than on the aircraft itself.
\9\ 14 CFR 382.63(a).
---------------------------------------------------------------------------
In the preamble to the 1990 ACAA rule, the Department stated that
by requiring accessible lavatories on twin aisle aircraft, the result
would be ``new aircraft with the greatest passenger capacities, and
which make the longest flights, having a lavatory that handicapped
persons can readily use.'' \10\ However the Department noted airlines'
concerns that providing accessible lavatories on single-aisle aircraft
may require airlines to remove seats in order to install a lavatory of
sufficient size to meet the accessibility standards of the existing
rule. The Department found that those ``cost and feasibility concerns''
were ``worth serious consideration,'' \11\ and ultimately decided at
the time that it was unable to ``obtain sufficient information to make
a sound decision'' on whether requiring accessible lavatories on
single-aisle aircraft would impose an undue burden on airlines.\12\
Accordingly, at the time, the Department declined to require accessible
lavatories on single-aisle aircraft due to lack of information
regarding technical or economic feasibility.\13\ Instead, accessible
lavatories on single-aisle aircraft were made optional.\14\
---------------------------------------------------------------------------
\10\ 55 FR 8008, 8021 (March 6, 1990).
\11\ Id.
\12\ Id.
\13\ Id.
\14\ 14 CFR 382.63(b).
---------------------------------------------------------------------------
The 1990 ACAA rule also set standards for the availability and
design of OBWs. The rule generally requires airlines to provide OBWs in
two circumstances: (1) If the aircraft has an accessible lavatory; or
(2) on the request of a passenger with a disability, even if the
aircraft does not have an accessible lavatory.\15\ The rule also sets
basic standards for OBW design, including
[[Page 17217]]
elements such as footrests, movable armrests, adequate restraint
systems, handles, and wheel locks.\16\ The rule provides that the OBW
must be designed to be compatible with the aisle width, maneuvering
space, and seat height of the aircraft on which it is used, and must be
easily pushed, pulled, and turned within the aircraft by airline
personnel.\17\
---------------------------------------------------------------------------
\15\ The requirement for airlines to provide an OBW is limited
to aircraft with a design seat capacity of more than 60 passenger
seats, with certain exceptions for specific types of smaller
aircraft. 14 CFR 382.65(a). There are two limitations to the rule
that airlines must provide OBWs on request when the lavatory itself
is not accessible. First, the basis of the passenger's request must
be that the passenger can use an inaccessible lavatory, but cannot
reach it without the use of an OBW. Second, airlines may require
passengers to provide up to 48 hours' advance notice to provide this
service. 14 CFR 382.27(c)(7).
\16\ 14 CFR 382.65(c).
\17\ 14 CFR 382.65(c).
---------------------------------------------------------------------------
In the 1990 ACAA rule, the Department announced its intention to
issue an advance notice of proposed rulemaking (ANPRM) to seek comment
on the issue of whether to require accessible lavatories on single-
aisle aircraft.\18\ In 1992, the Department convened an advisory
committee to study this issue. The committee issued a report that
discussed various lavatory designs, along with potential associated
costs.\19\
---------------------------------------------------------------------------
\18\ 55 FR 8008, 8021.
\19\ See attachment at <a href="https://www.regulations.gov/document?D=DOT-OST-2015-0246-0194">https://www.regulations.gov/document?D=DOT-OST-2015-0246-0194</a>.
---------------------------------------------------------------------------
As originally enacted, the ACAA covered only U.S. air carriers.
However, on April 5, 2000, Congress enacted the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century (AIR-21),
which, among other things, amended the ACAA to include foreign air
carriers.\20\ In response to the AIR-21 requirements, the Department,
on May 18, 2000, issued a notice announcing the Department's plan to
initiate a rulemaking modifying part 382 to cover foreign carriers. On
November 4, 2004, the Department issued an NPRM announcing its
intention to apply the ACAA rule to foreign carriers.\21\ During the
course of this rulemaking, the Department received many comments
expressing the view that the existing requirements concerning
accessible lavatories were inadequate. Commenters at that time stated
that accessible lavatories should be required in all aircraft,
including single-aisle aircraft.
---------------------------------------------------------------------------
\20\ Public Law 106-181, sec. 707(c), 114 Stat. 61, 158 (2000).
\21\ 69 FR 64364 (November 4, 2004).
---------------------------------------------------------------------------
On May 13, 2008, the Department published a final rule amending
part 382 to cover foreign air carriers.\22\ The 2008 final rule
requires foreign air carriers operating twin-aisle aircraft to provide
accessible lavatories with respect to new aircraft that were ordered
after May 13, 2009, or which were delivered after May 13, 2010.\23\
(For U.S. carriers, the requirement applies to twin-aisle aircraft that
were initially ordered after April 5, 1990, or which were delivered
after April 5, 1992.) In the preamble to the 2008 final rule, the
Department acknowledged that single-aisle aircraft sometimes make
lengthy flights, and that providing accessible lavatories on single-
aisle aircraft would be a significant improvement in airline service
for passengers with disabilities. However, the Department again
ultimately declined to impose a requirement for accessible lavatories
on single-aisle aircraft, given concerns that the ``revenue loss and
other cost impacts'' could be too great.\24\
---------------------------------------------------------------------------
\22\ Id. at 27614.
\23\ 14 CFR 382.63(d). The rule also extended the OBW
requirements to foreign air carriers. 14 CFR 382.65(d).
\24\ 73 FR 27614, 27625; available at <a href="https://www.transportation.gov/sites/dot.gov/files/docs/Part%20382-2008_1.pdf">https://www.transportation.gov/sites/dot.gov/files/docs/Part%20382-2008_1.pdf</a>.
---------------------------------------------------------------------------
D. DOT ACCESS Advisory Committee
1. Formation and History of Committee
On December 7, 2015, the Department issued a Federal Register
document indicating that it was exploring the feasibility of conducting
a negotiated rulemaking with respect to six accessibility issues,
including accessibility of lavatories on single-aisle aircraft.\25\ As
part of this process, the Department hired a neutral convenor to assist
the Department in determining whether any or all of the six issues
would be appropriate for a negotiated rulemaking. The convenor found
that the following three issues would be appropriate for a negotiated
rulemaking: (1) Whether to require accessible in-flight entertainment
and strengthen accessibility requirements for other in-flight
communications; (2) whether to require an accessible lavatory on new
single-aisle aircraft over a certain size; and (3) whether to amend the
definition of ``service animals'' that may accompany passengers with a
disability on a flight.\26\
---------------------------------------------------------------------------
\25\ 80 FR 75953 (December 7, 2015). The six issues were: (1)
Accessibility of in-flight entertainment; (2) supplemental medical
oxygen; (3) service animals; (4) accessible lavatories on single-
aisle aircraft; (5) seating accommodations; and (6) carrier
reporting of disability service requests. Id.
\26\ 81 FR 20265 (April 7, 2016); see also <a href="https://www.regulations.gov/document?D=DOT-OST-2015-0246-0092">https://www.regulations.gov/document?D=DOT-OST-2015-0246-0092</a>.
---------------------------------------------------------------------------
The Department established and appointed members to the Advisory
Committee on Accessible Air Transportation (ACCESS Advisory Committee
or Committee) to negotiate and develop proposed regulations addressing
accessible in-flight entertainment, accessible lavatories, and service
animals.\27\ The Committee comprised members representing various
stakeholders including the Department, airlines, flight attendants,
disability advocacy groups, academic or nonprofit institutions having
technical expertise in accessibility research and development, and
aircraft manufacturers.\28\ The Committee formed subcommittees of
stakeholders to study and make recommendations on the three topics,
depending on the stakeholders' areas of interest and expertise. During
the first meeting, the Department informed the Committee that if it
came to a consensus on the terms of a proposed rule, the Department
would exercise good faith efforts to implement that consensus to the
extent possible.\29\ The Committee gathered data, conducted meetings
and site visits, and engaged in negotiations from May 2016 through
November 2016.
---------------------------------------------------------------------------
\27\ 81 FR 26178 (May 2, 2016).
\28\ A full list of ACCESS Advisory Committee members and other
information on the Committee may be found at <a href="https://www.transportation.gov/access-advisory-committee">https://www.transportation.gov/access-advisory-committee</a>; see also <a href="https://www.regulations.gov/docket?D=DOT-OST-2015-0246">https://www.regulations.gov/docket?D=DOT-OST-2015-0246</a> (ACCESS Advisory
Committee docket).
\29\ Under the ground rules of the Committee, consensus was
defined as ``no more than two negative votes in each issue area,''
with abstentions not counting as negative votes. <a href="https://www.transportation.gov/office-general-counsel/negotiated-regulations/access-committee-ground-rules">https://www.transportation.gov/office-general-counsel/negotiated-regulations/access-committee-ground-rules</a>.
---------------------------------------------------------------------------
2. Information Gathering
The Committee gathered information concerning the benefits of
improving the accessibility of lavatories on single-aisle aircraft. The
Committee learned that single-aisle aircraft were being increasingly
used for longer-haul flights, on which accessible lavatories were not
available.\30\
---------------------------------------------------------------------------
\30\ <a href="https://www.transportation.gov/sites/dot.gov/files/docs/Minutes%20-%201st%20Plenary%20Meeting.pdf">https://www.transportation.gov/sites/dot.gov/files/docs/Minutes%20-%201st%20Plenary%20Meeting.pdf</a>.
---------------------------------------------------------------------------
Paralyzed Veterans of America (PVA) presented survey data showing
that for a majority of respondents, the inability to use a lavatory
would be reason to choose not to fly.\31\ PVA reported that some
passengers with disabilities choose to fly shorter routes, go to the
lavatory before entering the aircraft, or dehydrate themselves before
flying to alleviate the need to use the lavatory on the aircraft.\32\
More than 500 of 725 respondents to PVA's survey indicated that the
biggest hindrance was the size and space/design of the lavatory
itself.\33\ A majority of survey respondents also indicated that an OBW
would be necessary to reach the lavatory.\34\ Survey respondents noted
a number of issues with current OBWs, including lack of access to an
OBW, not knowing that OBWs are available, inability to
[[Page 17218]]
transfer from the OBW to the toilet, and the narrowness of the aisle in
relation to the OBW.\35\
---------------------------------------------------------------------------
\31\ <a href="https://www.transportation.gov/sites/dot.gov/files/docs/3a.P4.Lav_.Advocate%20Survey%20Results.v2.pdf">https://www.transportation.gov/sites/dot.gov/files/docs/3a.P4.Lav_.Advocate%20Survey%20Results.v2.pdf</a>.
\32\ Id. at 4.
\33\ Id. at 3.
\34\ Id.
\35\ Id. at 3.
---------------------------------------------------------------------------
3. Developments in Accessible Lavatory Design and OBW Design
The ACCESS Advisory Committee proceedings provided an opportunity
for manufacturers to demonstrate improvements to the accessibility of
lavatories on single-aisle aircraft. For example, at the first meeting
on May 17-18, 2016, one aircraft manufacturer (Airbus) presented
information about its SpaceFlex lavatories. During normal operations,
they function as two lavatories, separated by a dividing wall. On
request, however, the dividing wall can be removed by a flight
attendant, creating a single large space for the passenger and an
assistant to enter and use the facilities.\36\ SpaceFlex lavatories are
installed in the rear section of the aircraft against the back wall, in
the area that is often used for galley space (where drinks, meals,
snacks, and service carts are stowed). DOT has learned that SpaceFlex
lavatories are used primarily, but not exclusively, by low-cost
airlines.
---------------------------------------------------------------------------
\36\ <a href="https://www.transportation.gov/sites/dot.gov/files/docs/Airbus%20Presentation%20on%20Lav.pdf">https://www.transportation.gov/sites/dot.gov/files/docs/Airbus%20Presentation%20on%20Lav.pdf</a>. This is the version of
SpaceFlex known as ``V1.'' Airbus also produces a ``SpaceFlex V2,''
which does not increase the size of the lavatory, but provides a
transfer seat to assist passengers in transitioning from the OBW to
the aircraft toilet seat.
---------------------------------------------------------------------------
Another aircraft manufacturer (Bombardier) presented information
about the accessibility features of its single-aisle ``C-Series''
aircraft. This manufacturer explained that C-Series lavatories were
designed to permit passengers with reduced mobility the ability to
transfer independently from the OBW to the toilet seat with the
lavatory door closed.\37\ The manufacturer explained that accessible
lavatories were a design feature of the aircraft from its
inception,\38\ and that ``clean sheet'' designs can take many years to
produce. The C-Series is now majority-owned by Airbus and is known as
the Airbus A220; seating capacity ranges from 100 to 160 passengers.
The accessibility lavatory feature of the Airbus 220 is optional for
carriers.
---------------------------------------------------------------------------
\37\ <a href="https://www.transportation.gov/sites/dot.gov/files/docs/P3.Lav_.2.Block_.Bombardier%20Presentation.v2.2016.07.11.pdf">https://www.transportation.gov/sites/dot.gov/files/docs/P3.Lav_.2.Block_.Bombardier%20Presentation.v2.2016.07.11.pdf</a>.
\38\ <a href="https://www.transportation.gov/sites/dot.gov/files/docs/resources/individuals/aviation-consumer-protection/285871/july-meeting-minutes.pdf">https://www.transportation.gov/sites/dot.gov/files/docs/resources/individuals/aviation-consumer-protection/285871/july-meeting-minutes.pdf</a>.
---------------------------------------------------------------------------
The Committee also learned about a prototype OBW, developed by the
University of Hamburg, with a cantilevered design that would permit the
OBW to enter the lavatory space by positioning the OBW seat over the
toilet lid.
4. Development of a Tiered Approach to Accessibility
During the ACCESS Advisory Committee's negotiations, stakeholders
recognized that there were various ways to improve accessibility of
lavatories, with varying costs and timelines for implementation. For
example, the lavatory interior could be upgraded to include features
such as accessible handles, faucets, and call buttons; airlines could
also improve elements such as crew training and information about
lavatory accessibility. Finally, the OBW design could be improved to
enable a passenger with a disability to enter the lavatory. There was
agreement that these improvements, which would not require increasing
the floor dimensions (``footprint'') of the lavatory itself, could be
implemented relatively quickly and thus became known as ``short term''
(or ``Tier 1'') improvements.
The stakeholders also discussed various accessibility options that
would increase the footprint of the lavatory, but not to the full size
of a twin-aisle aircraft lavatory.\39\ Finally, the stakeholders
discussed the highest tier of accessibility: Expansion of lavatories to
have the footprint (and accessibility features) of lavatories on twin-
aisle aircraft. Here, airlines took the position that lavatories with
larger footprints would take up space that could otherwise be filled by
a row of seats. Airlines and manufacturers argued that airlines would
lose considerable revenue from increasing the footprint of the lavatory
because it would result in the loss of a row of seats. Airlines and
manufacturers calculated that an industry-wide loss of three seats
could result in lost revenue of $33.3 billion over 25 years (net
present value).\40\ They argued that these costs could only be incurred
if implementation of these improvements took place over the span of
many years. These accessibility improvements became known as ``long
term'' (or ``Tier 3'') improvements.
---------------------------------------------------------------------------
\39\ These became known as ``Tier 2'' improvements, but were not
adopted by the Committee.
\40\ <a href="https://www.transportation.gov/sites/dot.gov/files/docs/3a.OEM_.Airline%20Accessible%20Lav.Position.8.15.16..pdf">https://www.transportation.gov/sites/dot.gov/files/docs/3a.OEM_.Airline%20Accessible%20Lav.Position.8.15.16..pdf</a>.
---------------------------------------------------------------------------
5. Consensus and Production of Term Sheet
On November 22, 2016, the ACCESS Advisory Committee reached
consensus on recommendations for new regulatory proposals to improve
the accessibility of lavatories on single-aisle aircraft.\41\ The
accessible lavatory Term Sheet states that the proposed standards would
apply to new single-aisle aircraft. The agreement includes
recommendations for both short-term and long-term accessibility
improvements.
---------------------------------------------------------------------------
\41\ <a href="https://www.transportation.gov/office-general-counsel/negotiated-regulations/final-resolution-access-committee">https://www.transportation.gov/office-general-counsel/negotiated-regulations/final-resolution-access-committee</a>.
---------------------------------------------------------------------------
a. Recommendations on Short-Term Improvements
The Committee agreed to a series of improvements that would be
required on new single-aisle aircraft delivered 3 years after the
effective date of the DOT final rule that implements the agreement.\42\
First, the Committee agreed that airlines operating aircraft with 60 or
more passenger seats \43\ would be required to: (1) Train flight
attendants to proficiency with respect to transfers to and from the OBW
and with respect to accessibility features of the lavatory and the OBW;
(2) publish lavatory accessibility information and provide it on
request; and (3) remove the International Symbol of Accessibility from
lavatories that are not capable of facilitating a seated independent
transfer.
---------------------------------------------------------------------------
\42\ The proposed rule text refers to ``all new single-aisle
aircraft'' above a specific seating capacity that are ``delivered''
on or after a certain date. This phrasing makes clear that the
proposed rule is not limited to newly-certificated aircraft models.
Instead, it also applies to newly-manufactured aircraft of existing
models.
\43\ All references to seat capacity in the Term Sheet are
references to Federal Aviation Administration (FAA)-certificated
maximum seat capacities.
---------------------------------------------------------------------------
Next, single-aisle aircraft with 125 or more passenger seats would
also be required to have at least one lavatory with a number of
accessibility features, including accessible door locks, flush handles,
call buttons, faucets, and assist handles.
Finally, single-aisle aircraft with 125 or more passenger seats
\44\ would also be required to include an OBW that: (1) Permits passage
in the aircraft aisle; (2) fits within an available certificated OBW
stowage space; and (3) accomplishes its functions without requiring
modification to the interior arrangement of the aircraft or the
lavatory. The Term Sheet calls on the
[[Page 17219]]
Department to develop OBW standards, in consultation with stakeholders,
and to publish those standards in a proposed rule. The Term Sheet
indicates that standards for an over-the-toilet design OBW should be
established, if feasible.
---------------------------------------------------------------------------
\44\ The Committee accepted the airline industry's proposal that
a 125-seat threshold was a reasonable proxy for relatively long
flight times (over 2-3 hours), where the need to use the lavatory
would be greatest. Airlines presented data that aircraft with 125-
seats or more reflected 87% of single-aisle available seat miles,
and that only a small proportion of flights lasting over 2-3 hours
were conducted by aircraft under with a capacity under 125 seats.
See <a href="https://www.transportation.gov/sites/dot.gov/files/docs/3a.P4.Lav_.OEM_.Airline%20Accessible%20Lav.Position.8.15.16..pdf">https://www.transportation.gov/sites/dot.gov/files/docs/3a.P4.Lav_.OEM_.Airline%20Accessible%20Lav.Position.8.15.16..pdf</a>,
slide 20).
---------------------------------------------------------------------------
b. Recommendations on Long-Term Improvements
The Committee also agreed to expand the footprint of lavatories on
single-aisle aircraft, but with a longer time frame for implementation.
Specifically, new single-aisle aircraft with 125 or more passenger
seats would be required to include at least one lavatory of sufficient
size to permit a qualified individual with a disability to perform a
seated independent (unassisted) and dependent (assisted) transfer from
the OBW to and from the toilet within a closed space. The lavatory
would afford an equivalent level of privacy to the persons using the
OBW as that afforded to ambulatory users. The lavatory would also
include the interior accessibility improvements found in Tier 1.
Under the agreement, these improvements would be required on
qualifying aircraft: (1) That were initially ordered 18 years after the
effective date of the final rule implementing the agreement, or (2)
that were delivered 20 years after the effective date of such a final
rule; or (3) for which an application for a new type-certificate is
filed after 1 year from the effective date of the final rule. The
agreement does not call for retrofitting of existing aircraft to meet
the new expanded size requirements, but it does require that airlines
comply with the Tier 1 standards if they replace lavatories on older
aircraft.\45\
---------------------------------------------------------------------------
\45\ See Term Sheet, ``Tier 3'' Agreement, section (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 a single aisle aircraft, you must replace it
with an accessible lavatory as defined in section 382.xx (tier I
section)''). <a href="https://www.transportation.gov/sites/dot.gov/files/docs/Annex%20A.Lav_.Agreed%20Text.pdf">https://www.transportation.gov/sites/dot.gov/files/docs/Annex%20A.Lav_.Agreed%20Text.pdf</a>.
As with the current rule, accessible lavatories would not be
required if the airline chooses not to install any lavatories on the
aircraft. In practice, however, airlines generally choose to install
at least one lavatory onboard aircraft.
---------------------------------------------------------------------------
While the Department agreed in 2016 to propose these time frames
for implementation, the Department remains very concerned about the
length of time that individuals with disabilities have had to wait to
receive these much-needed accessibility improvements. As we indicate in
Part IV below, the Department requests comment on these requirements,
including supporting data for any comments that suggest more rapid
implementation intervals, criteria other than type-certification for
required action, or for options that would require retrofitting of
existing aircraft.
E. Conducting Lavatory Rulemakings in Two Phases
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. The NPRM addressing short-term improvements was published
as the Part 1 NPRM. 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 OBW. The comment period to the Part 1 NPRM closed on March
2, 2020. During the comment period, a large majority of individuals
expressed the view that the Department should issue a rule expanding
the size of lavatories on single aisle aircraft, even though the NPRM
itself did not seek comment on this issue.
After reviewing the comments from the Part 1 NPRM, the Department
has determined that it is prudent to gather additional information
about OBW design before issuing a final rule. Accordingly, the
Department intends to hold a public hearing regarding OBW design. The
Department will then review the information gathered in that public
hearing, along with the comments that it received to the Part 1 NPRM
and this NPRM, which is the Part 2 NPRM focused on long-term
improvements. Any final rule on accessible lavatories would address the
proposals in both these NPRMs.
F. Government Accountability Office Review
On January 7, 2020, the U.S. Government Accountability Office (GAO)
published a review of commercial aircraft lavatories.\46\ The report
found that the fleets of the top eight U.S. domestic carriers, as
measured by the number of 2018 passenger trips, largely consist of
single-aisle aircraft.\47\ Of those eight carriers that were studied,
five use single-aisle aircraft exclusively.\48\ According to GAO, in
2018, 99 percent of U.S. aircraft departures for domestic flights
occurred on single-aisle aircraft.\49\
---------------------------------------------------------------------------
\46\ GAO, ``Aviation Consumer Protection: Few U.S. Aircraft Have
Lavatories Designed to Accommodate Passengers with Reduced
Mobility'' (GAO-20-258), available at <a href="https://www.gao.gov/assets/710/703687.pdf">https://www.gao.gov/assets/710/703687.pdf</a>.
\47\ Id. at 3.
\48\ Id. at 3 n.5.
\49\ Id. at 6.
---------------------------------------------------------------------------
GAO also surveyed various types of lavatories that are currently
available to be installed on single-aisle aircraft, including the
Airbus SpaceFlex V1, the SpaceFlex V2, the accessible design for the
Airbus A220 (formerly the Bombardier C-Series), and the Boeing Pax
Plus.\50\ GAO found that, ``[w]hile aircraft manufacturers offer
lavatories designed to accommodate passengers with mobility
impairments, carriers do not often choose to acquire them.'' \51\ In
total, approximately 4.5 percent of the combined fleet of those eight
carriers have lavatories designed to provide some measure of greater
access for passengers with disabilities.\52\ Specifically, according to
GAO, of the eight carriers studied, four had single-aisle aircraft
within their fleet with lavatories designed to accommodate passengers
with mobility impairments.\53\ Moreover, all of the aircraft in U.S.
fleets with any lavatory accommodations for passengers with mobility
impairments were manufactured by Airbus.\54\ According to GAO,
``[d]espite Boeing's offering of the Pax Plus lavatories since 2017,
Boeing officials told us that no U.S. carriers have ordered these
lavatories for their current or future single-aisle Boeing aircraft.''
\55\
---------------------------------------------------------------------------
\50\ Id. at 9-13.
\51\ Id. at 14.
\52\ Id.
\53\ Id.
\54\ Id. at 15. According to the GAO report, three airlines have
aircraft in their fleet with the SpaceFlex V1 installed. One airline
has Airbus A220 aircraft in its fleet; these aircraft have
lavatories that can accommodate an OBW, but not both an OBW and an
assistant. Id., at 13, 15.
\55\ Id. at 14.
---------------------------------------------------------------------------
Consistent with the general findings of the ACCESS Advisory
Committee, the carriers with the largest percentage of accessible
lavatories in their fleets tend to be low-cost carriers with fewer
requirements for galley space.\56\ GAO confirmed that airlines take
into account cost tradeoffs (in terms of lost revenue from removed
seats) when determining whether to install accessible lavatories.
According to GAO, some airline officials contend that fewer seats in
circulation may lead to higher costs for carriers, and subsequently
higher costs for consumers.\57\
---------------------------------------------------------------------------
\56\ Id. at 16.
\57\ Id. at 15.
---------------------------------------------------------------------------
Consistent with prior findings, GAO reports that according to
stakeholder groups, passengers with disabilities may encounter
significant difficulties when attempting to fly on single-aisle
aircraft; that many report anxiety over flying, or
[[Page 17220]]
that they avoid flying and choose to take ground transportation
instead.\58\ GAO reports that airlines and DOT receive few reports of
inaccessible lavatories on single-aisle aircraft; however, that low
number could be explained by passengers either knowing that such
lavatories are not required, or avoiding air travel, or taking the
precautionary measures described above.
---------------------------------------------------------------------------
\58\ Id. at 16-17.
---------------------------------------------------------------------------
II. Discussion of Proposed Rule Text
In this NPRM, the Department proposes long-term improvements for
accessible lavatories on single-aisle aircraft. The proposed rule text
is intended to track the ACCESS Advisory Committee's consensus Term
Sheet as closely as possible.
In keeping with the ACCESS Advisory Committee's agreement, these
proposed improvements would apply to single-aisle aircraft with an FAA-
certificated maximum seating capacity of 125 or more seats that are:
(1) Ordered 18 years after the effective date of the final rule; (2)
delivered 20 years after the effective date of the final rule; or (3)
of a new type-certificated design filed with the FAA or a foreign
carrier's aviation safety authority more than one year after the
effective date of the final rule. In general, the purpose of this
requirement would be to afford airlines and aircraft manufacturers
sufficient time to determine and implement a means of installing larger
lavatories on current type-certificated aircraft, while also
effectively requiring new type-certificated aircraft to incorporate
larger lavatories as part of the aircraft's design.
The proposed rule would require the lavatory to be large enough to
permit a qualified individual with a disability \59\ to approach the
lavatory, enter, maneuver within as necessary to use all lavatory
facilities, and leave by means of the aircraft's OBW.\60\ The lavatory
would also be of sufficient size to permit an assistant to enter the
lavatory along with the passenger to facilitate an assisted transfer
between the OBW and the toilet. While the proposed rule does not
explicitly state that the lavatory would need to be large enough to
accommodate both individuals with the door closed, it does provide that
the assisted transfer must take place within a closed space that
affords to persons using the OBW privacy equivalent to that afforded
ambulatory users.
---------------------------------------------------------------------------
\59\ The Term Sheet describes the passenger with a disability
and the assistant as being ``equivalent in size to a 95th percentile
male,'' but is unclear as to whether the term refers to height,
weight, or both. The Department considers 95th percentile to apply
to both height and weight. There does not appear to be a specific
and universally-accepted method for calculating the height and
weight of a 95th percentile male; moreover, that measurement may
change over time. One recent publication from SAE International
suggests that a 95th percentile male would be 6 feet 1 inches
(1.86m) and 227 pounds (103kg). See <a href="https://saemobilus.sae.org/content/2021-01-0918">https://saemobilus.sae.org/content/2021-01-0918</a>. We seek comment on the appropriate method of
calculating the height and weight of a 95th percentile male.
``Qualified individual with a disability'' is defined in 14 CFR
382.3 in relevant part as an individual who ``buys or otherwise
validly obtains, or makes a good faith effort to obtain, a ticket
for air transportation on a carrier and presents himself or herself
at the airport for the purpose of traveling on the flight to which
the ticket pertains; and meets reasonable, nondiscriminatory
contract of carriage requirements applicable to all passengers.''
\60\ In the Part 1 NPRM, the Department proposes various
improvements to the design of the OBW itself. One of those proposed
improvements is that the OBW include an ``over-the-toilet'' design.
This feature would permit the passenger to enter the lavatory while
seated on the OBW, with the seat of the OBW situated over the top of
the closed toilet lid. This OBW design would permit passengers with
disabilities to perform non-toileting functions in privacy, within
smaller lavatories. One key benefit of the larger lavatory design is
that it permits the OBW to be situated adjacent to the toilet seat,
so that the passenger can transfer to and from the toilet to perform
toileting functions.
---------------------------------------------------------------------------
The proposed rule would also require the lavatory to have certain
accessible interior features. These features would be identical to
those the Department proposed in the Part 1 NPRM (applicable to new
single-aisle aircraft delivered 3 years after the effective date of the
final rule derived from that NPRM).\61\ Those features are set forth in
the rule text.
---------------------------------------------------------------------------
\61\ The Part 1 NPRM calls for airlines to provide a visual
barrier, on request, to afford to passengers with disabilities to
use the lavatory with the door open while providing a level of
privacy equivalent to that provided to ambulatory users. This
feature would not be required in this proposal as the Department is
proposed to require a lavatory of sufficient size to permit
equivalent levels of privacy. We seek comment, however, on whether
and to what extent visual barriers would benefit passengers with
disabilities if airlines were required to comply with this proposal.
---------------------------------------------------------------------------
The Department seeks comment on its proposal to increase the
footprint of the lavatory on single-aisle aircraft to permit a
passenger with a disability (with the help of an assistant, if
necessary) to approach, enter, and maneuver within the aircraft
lavatory, as necessary, to use all lavatory facilities and leave by
means of the aircraft's on-board wheelchair. The Department
specifically seeks comment on the costs, benefits, feasibility and
compliance timeframes of this proposal.
The Department has identified an alternative that would be similar
to the NPRM's proposal, with the only difference being that the
lavatory would not be required to be large enough to also accommodate
an attendant. Under this alternative, the lavatory would be required to
be large enough to permit a passenger equivalent in size to a 95th
percentile male to enter the lavatory using the OBW, transfer between
the OBW and the toilet, use all facilities within a closed space that
affords privacy equivalent to that afforded to ambulatory users, and
exit using the OBW. Could such an alternative be implemented on an
earlier time frame than the timeframe proposed for lavatories that
would be large enough to accommodate a passenger with a disability and
his or her attendant? The Department seeks comment on the costs,
benefits, and feasibility of this alternative. Comments submitted in
response to the Part 1 NPRM regarding changes to the interior of the
lavatory, training requirements, and improvements to the OBW need not
be resubmitted.
The Department notes that the ACCESS Advisory Committee's agreement
would not result in high levels of accessibility in single-aisle
aircraft lavatories for a long period of time, and that it would not
guarantee such accessibility in aircraft outfitted for fewer than 125
seats which, based upon current trends and practices, are capable of
performing an increasing number of missions in the U.S. domestic
market, including mid-continental and trans-continental flights of
significant duration. Failure to achieve consistent and high levels of
accessibility could result in ongoing or increasing barriers to travel
requiring future action, not to mention create hardships for persons
with disabilities that all members of the ACCESS Advisory Committee
wished to avoid. Accordingly, the Department solicits specific comments
on whether there are different or more effective performance-based
standards that could achieve the ACCESS Advisory Committee's and the
Department's goals of improving accessibility on single-aisle aircraft
more quickly.
III. Summary of Regulatory Impact Analysis
The Department has prepared a preliminary regulatory evaluation in
support of the NPRM, available in the docket. The Department's analysis
builds on the approach to estimating impacts that the airlines and
manufacturers prepared for the negotiated rulemaking proceedings.
During the proceedings, industry maintained that accessible lavatories
on single-aisle aircraft would have larger footprints and take up space
that could otherwise be filled by a row of seats. They presented an
analysis of potential economic impacts assuming an industry-wide loss
of one row of three seats per aircraft, a 2018 compliance date, and a
requirement to retrofit
[[Page 17221]]
existing aircraft.\62\ The analysis estimated that airlines would
experience a revenue loss of $33.3 billion ($35.9 billion in 2019
dollars) for the 25-year period from 2018 through 2042.\63\
---------------------------------------------------------------------------
\62\ U.S. Department of Transportation (2016). ``Aircraft
Lavatory Accessibility Joint Airline and Manufacturer
Presentation.'' <a href="https://www.transportation.gov/sites/dot.gov/files/docs/3a.OEM_.Airline%20Accessible%20Lav.Position.8.15.16..pdf">https://www.transportation.gov/sites/dot.gov/files/docs/3a.OEM_.Airline%20Accessible%20Lav.Position.8.15.16..pdf</a>.
\63\ Adjusted for inflation using the Consumer Price Index for
All Urban Consumers (CPI-U) annual averages for 2015 (237.0) and
2019 (255.7).
---------------------------------------------------------------------------
The final terms of the negotiated rulemaking differ from the
assumptions used in the industry analysis and affect the estimates.
While the analysis assumed a 2018 compliance date and a requirement to
retrofit existing aircraft, the proposed rule applies only to new
deliveries of aircraft delivered beginning 20 years after the effective
date of the final rule. The longer time horizon significantly reduces
the industry estimate of impacts through the effects of discounting, as
does removing the requirement for retrofitting of existing aircraft.
While industry projected that traveling public would experience at
least some of these impacts in the form of higher fares, reduced
service to marginally profitable locations, and reduced seat
availability, it did not provide an estimate of consumer impacts.
A key uncertainty in the Department's analysis is the degree of
seat loss the industry will experience due to an accessible lavatory
requirement. On the one hand, several existing designs would not
require carriers to remove seats, as discussed in the ``Government
Accountability Office Review'' section, suggesting that a universal
loss of three seats is likely an overestimate. Airlines could comply
with the requirements of the proposed rule using existing aircraft and
lavatory designs that would not require any seat removal. On the other
hand, airlines have demonstrated a trend of reducing the size of
lavatories on aircraft to fit as many seats as possible.\64\ Given this
trend, requiring accessible lavatories in place of shrinking lavatories
may lead to losses of seats for future aircraft relative to the world
without this proposed rule (the baseline scenario). According to
industry, the loss of ``even a small number of seats . . . has
tremendous opportunity costs'' and ``a loss of even one seat affects
the selling of all other seats.'' \65\ Total available seats, including
unoccupied seats, are part of industry planning and business strategy,
and the loss of seats could disrupt those processes.
---------------------------------------------------------------------------
\64\ Scott McCartney (August 29, 2018). ``You're Not Getting
Bigger, the Airplane Bathroom Is Getting Smaller.'' Wall Street
Journal. Retrieved October 14, 2021 from <a href="https://www.wsj.com/articles/youre-not-getting-bigger-the-airplane-bathroom-is-getting-smaller-1535553108">https://www.wsj.com/articles/youre-not-getting-bigger-the-airplane-bathroom-is-getting-smaller-1535553108</a>.
\65\ ``Aircraft Lavatory Accessibility Joint Airline and
Manufacturer Presentation,'' available at <a href="https://www.transportation.gov/sites/dot.gov/files/docs/3a.OEM_.Airline%20Accessible%20Lav.Position.8.15.16..pdf">https://www.transportation.gov/sites/dot.gov/files/docs/3a.OEM_.Airline%20Accessible%20Lav.Position.8.15.16..pdf</a>.
---------------------------------------------------------------------------
In the absence of an alternative estimate of seat loss, we retain
for the purposes of this NPRM the airlines' estimate of an industry-
wide loss of three seats per single-aisle aircraft for this analysis.
However, in our judgment, given existing designs and practical limits
to downsizing of existing lavatories, the loss of three seats likely
overestimates the effects of the rule on cabin configuration and total
available seats. We seek information, data, and comment on what
estimates of the costs of seat loss would be most appropriate.
Manufacturing and installing accessible lavatories may impose
additional costs. During the negotiated rulemaking meetings, aircraft
manufacturers and airlines did not emphasize any cost differential
between current lavatories and accessible lavatories, except for
retrofitting and taking aircraft out of service to make modifications.
Because the agreement only applies to new aircraft, we assume that any
additional cost of manufacturing and installing an accessible lavatory
at the design phase of aircraft production is de minimis relative to
the cost of an aircraft.
The primary benefit of the proposed rule is that passengers with
disabilities would have privacy and dignity while using the lavatory.
These passengers would no longer have to consider risky alternatives
such as dehydrating before flight or withholding bodily functions.
Accessible lavatories could also expand the market for travel by people
with disabilities if they have latent demand for air travel and the
rule enables travel that was previously deterred. In addition, other
passengers may also derive ancillary benefits from having larger
lavatories, including the ability to perform tasks that might not be
possible otherwise, such as changing a child's diaper or assisting a
child using the toilet. Finally, members of the public may feel that
improving accessibility for travelers with disabilities has a social
value.
Given available data, we cannot currently quantify these benefits.
There is significant uncertainty regarding the size of the affected
population in the baseline and the extent to which this proposed rule
will remove barriers to air travel for current and potential
passengers. Without the ability to measure the size of the affected
population, the extent to which the lack of accessible lavatories
creates barriers to air travel, and the degree that the requirements of
this proposed rule improve travel experience and encourage additional
travel, it is not currently possible to quantitatively evaluate or
monetize impacts. However, we seek information that may help do so.
Other economic impacts of the proposed rule depend on the degree to
which adding accessible lavatories reduces the number of passengers on
flights. The Department preliminarily estimated the effects of removing
three departure seats per aircraft based on industry feedback, although
this estimate may overstate the economic effects of the rule. The
Department also used published estimates of the price elasticity of air
travel demand to estimate potential increases to airfare that would
allow airlines to offset a portion of the revenue lost from the removal
of seats by passing on impacts to passengers. As noted above, we seek
additional data and information on these issues.
The Department's regulatory impact analysis, summarized in Table 1
and available in the docket, illustrates the potential economic effects
of the proposed rule. Total societal (economic) costs are the sum of
lost producer and consumer surplus due to the reduction in the number
of passengers transported. The annualized costs, discounted to 2022,
are $212 million at a 3% discount rate or $85 million at a 7% discount
rate. The proposed rule would also result in a transfer from passengers
to airlines due to airlines increasing airfare to recapture lost
revenue. The annualized transfers are $933 million at a 3% discount
rate or $373 million at a 7% discount rate.
[[Page 17222]]
Table 1--Summary of Economic Impacts Due to Proposed Rule
[2019 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
25-Year total (3% discount) Annualized (3% discount) 25-Year total (7% discount) Annualized (7% discount)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits............................ Not quantified............. Not quantified............. Not quantified............. Not quantified.
Costs:
Lost producer surplus........... $3,563,259,980............. $204,630,435............... $954,736,436............... $81,926,427.
Lost consumer surplus........... $136,530,910............... $7,840,679................. $33,459,393................ $2,871,168.
Total societal costs............ $3,699,790,890............. $212,471,114............... $988,195,830............... $84,797,595.
Transfers:
From passengers to airlines..... $16,241,111,323............ $932,692,447............... $4,352,911,148............. $373,525,557.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Estimates calculated using midpoint elasticities of domestic air travel demand identified in literature.
Because we could not quantify and monetize benefits, it is not
possible to make a judgment regarding the relationship between benefits
and costs based upon a net benefits calculation. We conducted a
supplementary analysis to provide some insight into how passengers and
airlines might experience these costs.
Table 2 summarizes the results of the supplementary analysis.
Passengers flying in 2066--the year when all single-aisle aircraft
would be assumed to have accessible lavatories and fewer available
seats--would experience the largest increases in ticket prices.
Domestic passengers would pay an additional $2.22 per ticket on
average; international passengers would pay an additional $9.13.
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 would more than offset
any revenue loss that the airlines would directly experience due to a
reduction in passenger seats, but the net revenue increase would be
modest.
Table 2--Other Economic Impacts Due to Proposed Rule
------------------------------------------------------------------------
Item Amount in 2066
------------------------------------------------------------------------
Increase in ticket price (domestic)..................... $2.66
Increase in ticket price (international)................ 10.88
Net revenue loss (gross revenue loss less transfer from -24,010,938
passengers)............................................
------------------------------------------------------------------------
Note: Estimates calculated using midpoint elasticities of domestic air
travel demand identified in literature.
IV. Request for Data and Comments
The Department solicits written data, analysis, views, and
recommendations from interested persons concerning the information and
issues addressed in this NPRM. Comments submitted in response to the
Part 1 NPRM need not be resubmitted, as they are already being
considered. The Department specifically seeks comment on the following
questions related to this rulemaking:
A. General
The Department currently requires airlines to ensure that at least
one lavatory on twin-aisle aircraft is accessible. To what extent do
accessible lavatories on twin-aisle aircraft meet the needs of
passengers with disabilities, particularly passengers with mobility
impairments? Are accessible lavatories on twin-aisle aircraft large
enough to accommodate an assistant to assist the passenger with
transfers between the OBW and the toilet?
To what extent are lavatories meeting the size parameters of this
proposal already available for installation on single-aisle aircraft?
To the extent that such lavatories are available on the market but are
not being installed, what are the market forces driving this decision?
How important is it for airlines to distinguish themselves in the
marketplace based on factors such as robust galley service? What
additional costs or revenue loss would be incurred if galley space were
sacrificed in order to accommodate an accessible lavatory? How do
airlines assess this tradeoff against the increase in the number of
seats (typically an entire row) that could be added under such a
design, in addition to providing accessibility?
What are the future trends for voluntary adoption of larger
lavatories in single-aisle aircraft, particularly given demographic
trends tending toward an aging population? What market incentives, if
any, exist to encourage airlines to install accessible lavatories on
single-aisle aircraft? Would airlines benefit from advertising (or
otherwise indicating) that their aircraft have accessible lavatories?
Are carriers able to distinguish themselves in the marketplace based on
the availability of accessible lavatories? If a carrier does have
aircraft in its fleet with accessible lavatories, how would passengers
with disabilities know or ensure that their specific flight is being
operated using an aircraft equipped with an accessible lavatory?
Are other innovative accessible lavatory options, not discussed in
this NPRM, being developed? If so, what tradeoffs, costs, and benefits
are associated with such lavatories? For example, could a side-by-side
aisle-facing lavatory design (such as is found on the Boeing 737-900ER)
be adapted (such as by including movable walls) to provide the desired
level of accessibility while also preserving both existing galley space
and total seating capacity?
B. Time Frame for Adoption
The ACCESS Advisory Committee agreed to require lavatories on new
aircraft ordered 18 years or delivered 20 years after the effective
date of a final rule. Airlines and aircraft manufacturers that
participated in the ACCESS Advisory Committee indicated that this time
frame was the earliest acceptable time frame for adopting new
standards, but did not provide a thorough explanation for why
implementation must be delayed to that degree. As a frame of reference,
FAA regulations allow manufacturers 5 years from the date of
application to finish designing (obtaining approval of) a new
transport-category airplane.
If the useful life of an aircraft is roughly 25 years, then
approximately 4 percent of aircraft would be replaced annually, on
average. Under these assumptions and the current implementation dates
of the rule, it would take approximately 25 years for one-quarter of
all qualifying aircraft to be deployed with accessible features, 30
years for half of all qualifying aircraft, and 45 years for essentially
all qualifying aircraft to have the accessibility features described in
this NPRM.
Are these extended implementation timeframes appropriate or
necessary?
[[Page 17223]]
Why or why not? Specifically, we note that the negotiated rulemaking
took place five years ago, in 2016. At that time, the Department
expressed its intent to expeditiously issue an NPRM reflecting the
stakeholders' Term Sheet. The Term Sheet itself contains compliance
dates that are tied to the date that the Department issues a final
rule. How should the Department take into account the lapse of time
between the Term Sheet and this NPRM when drafting its final rule? Are
there alternative timeframes that could yield benefits sooner without
imposing an undue burden?
Are new type-certificated single-aisle aircraft currently being
developed that would include lavatories of the size equivalent to that
proposed here (i.e., lavatories that are large enough to permit a
passenger with a disability to approach, enter, and maneuver within the
aircraft lavatory with the help of an assistant if needed)? If so, when
and how would such aircraft be placed into service? What share of the
total commercial aircraft fleet and available seat miles would be
represented by such aircraft at different points in the future?
Do any new type-certificated single-aisle aircraft include
lavatories that would not be large enough to accommodate an assistant
but large enough to permit a passenger equivalent in size to a 95th
percentile male to enter the lavatory using the OBW, transfer between
the OBW and the toilet, use all facilities within a closed space that
affords privacy equivalent to that afforded to ambulatory users, and
exit using the OBW? Do lavatories of this size already exist in the
marketplace? What is a realistic timeframe for implementation of this
alternative? If it is feasible to install lavatories that are large
enough to accommodate a person with a disability unassisted on an
earlier schedule than lavatories that are large enough to accommodate a
person with a disability assisted and unassisted, would that be more
beneficial to persons with disabilities? Why or why not?
Should the Department adopt a different tiered or phased model for
implementation? For example, should the Department require tiered
implementation of accessibility standards for different sizes of
carriers, different sizes of aircraft, aircraft used for longer routes
or aircraft used for routes that are busier than others? Should
implementation of accessibility standards be phased in or should
requirements be scoped based on the scheduled flight time? What are the
pros and cons of these various approaches? Is it appropriate to focus
implementation of accessibility standards first on the entities that
would be least burdened? Would a different approach allow technology or
design principles to develop more efficiently than the Department's
proposed approach? If so, how would the Department calculate the costs
and benefits of a different approach?
C. Applicability
The agreement of the ACCESS Advisory Committee would apply the
requirement for an accessible lavatory only to aircraft with maximum
seating capacity of 125 seats or more. We seek comment on this
recommended standard. Should the threshold for requiring an accessible
lavatory be higher or lower than 125 seats? How would the application
of a different threshold affect the potential costs and benefits of the
rule?
The airlines' and manufacturers' analysis also presented
information on the percentage of available seat miles (ASMs) on single-
aisle aircraft on flights over 2 hours and over 3 hours in duration.
However, the ACCESS Advisory Committee ultimately did not recommend
setting a performance-based standard that would limit the applicability
of the requirement for an accessible lavatory only to aircraft used on
flights with a scheduled duration. It is the Department's understanding
from discussions during the ACCESS Advisory Committee proceedings that
both airlines and advocates favored the seating-capacity approach over
the scheduled-duration approach because the Committee believed that
seating-capacity approach provides greater predictability as to when
accessible lavatories would be available, particularly in cases of
unexpected aircraft swaps.
Therefore, the Department seeks updated comment on this conclusion.
How can the rule be framed to provide the greatest predictability as to
when accessible lavatories would be available for disabled passengers?
The Department also seek comment on alternative performance-based
standards, such as requiring only a certain percentage of a carrier's
flights between city-pairs to have accessible lavatories. Such a
percentage standard could be accompanied by a requirement for carriers
to provide advance information on the accessibility of lavatories and
to rebook and/or compensate disabled passengers if an aircraft change
made accessible lavatories unavailable. How would the application of a
performance-based standard affect the potential costs and benefits of
the rule? What challenges would airlines face in managing their fleets
to ensure such a standard is met? Have there been any changes in
airline fleet management practices or capabilities since the time of
the rulemaking committee's report that might make meeting such a
standard more feasible today or in the future?
D. Economic Information
The Department seeks information to help it better understand the
benefits of the rule, including data that would assist it in
quantifying and/or monetizing those benefits. Relevant information to
estimate benefits for people with disabilities includes the number of
travelers with disabilities, estimates of latent air travel demand for
people who do not currently travel due to inaccessible lavatories, and
the associated costs to individuals from practices such as dehydrating
or holding bodily functions for extended periods. Other relevant
information includes information to quantify benefits for other
passengers, who may benefit from having the additional space in
accessible lavatories, as well as the public, who may derive value from
ensuring that people who need accessible lavatories on flights have
them. Data on passenger use of lavatories for flights of varying
duration would also be useful.
In the regulatory analysis, the Department assumed that aircraft
ordered with accessible lavatory features had identical costs to
aircraft ordered without accessible lavatories. The Department seeks
information on whether any cost differential exists between the two
types of aircraft and how that differential compares with the total
cost of new aircraft.
Finally, the Department seeks additional information to evaluate
the extent to which the proposed rule would require removal of
passenger or revenue seats, and how the traveling public and industry
would experience the economic impacts. The airlines and manufacturers
noted that airlines may respond to seat losses by adjusting schedules,
seat pitch, prices, and other aspects of their service but did not
quantify these effects in their analysis. The Department estimated
impacts to industry and consumers by using published estimates of the
price elasticity of demand for air travel and assumed an industry-wide
loss of three revenue seats per aircraft. In practical terms, what
would be the size of a lavatory that accommodates a passenger with a
disability and an attendant equivalent in size to a 95th-percentile
male? How would these dimensions affect the features of lavatory
interiors
[[Page 17224]]
such as assist handles, faucets and other controls, if these features
must meet the needs of and be usable by qualified individuals with a
disability whether equivalent in size to a 95 percentile male or a 5
percentile female? What are the benefits of basing the size of a
lavatory that accommodates a passenger with a disability and an
attendant equivalent on the size of a 95th-percentile male? What are
the cost effects of these dimensions, including on potential seat loss?
What additional data should the Department consider when determining
cost impacts, including potential seat loss?
We seek comment on other approaches to or data that could be used
for estimating effects on the industry and the market, as well as how
these effects might be allocated between airlines and consumers.
V. Regulatory Analyses and Notices
A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and 49 CFR
Part 5, Subpart B (DOT Rulemaking Procedures)
Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') require agencies
to regulate in the ``most cost-effective manner,'' to make a ``reasoned
determination that the benefits of the intended regulation justify its
costs,'' and to develop regulations that ``impose the least burden on
society.'' The proposed rule, which implements the terms of a
negotiated rulemaking agreement, is economically significant under
Executive Order 12866 because the estimated economic effects exceed the
$100 million annual threshold for significance defined by the order.
More information on the economic effects is available in the ``Summary
of Regulatory Impact Analysis'' section, as well as the regulatory
impact analysis available in the docket. Accordingly, the proposed rule
has been reviewed by the Office of Management and Budget.
Executive Orders 12866 and 13563 also require agencies to provide a
meaningful opportunity for public participation. Accordingly, the
Department has asked commenters to answer a variety of questions to
elicit practical information about relevant data and analytic
approaches, as described in ``Request for Data and Comments.'' These
comments will help the Department evaluate the economic effects of the
proposed rule.
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). The regulatory
initiative discussed in this NPRM would apply only to carriers that
operate aircraft with FAA-certificated maximum capacity of more than 60
seats. Therefore, by definition, the initiative would not have a
significant economic impact on a substantial number of small entities.
C. Executive Order 13132 (Federalism)
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This NPRM
does not include any provision that: (1) Has substantial direct effects
on the States, the relationship between the National Government and the
States, or the distribution of power and responsibilities among the
various levels of government; (2) imposes substantial direct compliance
costs on State and local governments; or (3) preempts State law. States
are already preempted from regulating in this area by the Airline
Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation and
funding requirements of Executive Order 13132 do not apply.
D. Executive Order 13175
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because none of the
topics on which we are seeking comment would significantly or uniquely
affect the communities of the Indian Tribal governments or impose
substantial direct compliance costs on them, the funding and
consultation requirements of Executive Order 13175 do not apply.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), no person is required to respond to a collection of information
unless it displays a valid Office of Management and Budget (OMB)
control number. This NPRM does not propose any new information
collection burdens.
F. Unfunded Mandates Reform Act
The Department has determined that the requirements of Title II of
the Unfunded Mandates Reform Act of 1995 do not apply to this NPRM.
List of Subjects in 14 CFR Part 382
Air carriers, Civil rights, Consumer protection, Individuals with
disabilities, Reporting and recordkeeping requirements.
Issued in Washington, DC, under authority delegated in 49 CFR
1.27(n).
John E. Putnam,
Deputy General Counsel.
In consideration of the foregoing, the Department proposes to amend
14 CFR part 382 as follows:
PART 382--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN AIR
TRAVEL
0
1. The authority citation for part 382 continues to read as follows:
Authority: 49 U.S.C. 41705.
Subpart E--Accessibility of Aircraft and Service Animals on
Aircraft
0
2. 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) The lavatory required in paragraph (a) of this section shall
include the following features:
(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,
[[Page 17225]]
carriers may comply with this requirement by ensuring that lavatory
water temperature is adjusted to eliminate the risk of scalding for all
passengers. Automatic or hand-operated faucets shall dispense water for
a minimum of five seconds for each application or while the hand is
below the faucet.
(3) Attendant call buttons and door locks must be accessible to an
individual seated within the lavatory.
(4) Lavatory controls and dispensers must be discernible through
the sense of touch. Operable parts within the lavatory must be operable
with one hand and must not require tight grasping, pinching, or
twisting of the wrist.
(5) The lavatory door sill must provide minimum obstruction to the
passage of the 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.
(c) You are not required to retrofit cabin interiors of existing
single-aisle aircraft to comply with the requirements of paragraph (a)
of this section.
(d) 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 [DATE 18 YEARS AFTER THE EFFECTIVE DATE OF THE
FINAL RULE] or delivered after [DATE 20 YEARS AFTER THE EFFECTIVE DATE
OF THE FINAL RULE] or are part of a new type-certificated design filed
with the FAA or a foreign carrier's safety authority after [DATE ONE
YEAR AFTER THE EFFECTIVE DATE OF THE FINAL RULE].
[FR Doc. 2022-05869 Filed 3-25-22; 8:45 am]
BILLING CODE 4910-9X-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on March 28, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.