BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D.C. 

)FPA"RMNTOF 

r^ANSPORTATION 

•^KET OPERATIONS 

/^lO :'ny ! o P 3: m 

Nondiscrimination on the Basis of 

Disability in Air Travel; Final Rule 

) 

) Docket OST-2008-0273 

) 

J 

APPLICATION OF VIRGIN AMERICA INC. 

FOR AN EQUIVALENT ALTERNATIVE DETERMINATION 

Communications with respect to this document should be sent to: 

John E. Gillick 

David M. Endersbee 

ZUCKERT, SCOUTT & RASENBERGER, 

L.L.P. 

888 17* Street, N.W. 

Washington, D.C. 20036 

Tel: 202-298-8660 

Fax: 202-342-0683 

Email: iegillick(a),zsrlaw.com 

dmendersbee(S),zsrlaw.com 

Counsel for Virgin America Inc. 

November 2, 2010 
BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D.C. 

Nondiscrimination on the Basis of 

Disability in Air Travel; Final Rule 

) 

) Docket OST-2008-0273 

) 

J 

APPLICATION OF VIRGIN AMERICA INC. 

FOR AN EOUIVALENT ALTERNATIVE DETERMINATION 

Virgin America Inc. ("Virgin America") respectfully applies, pursuant to 14 C.F.R. § 

382.10, for an equivalent alternative determination concerning compliance with 14 C.F.R. § 

382.67 (priority cabin space for passenger's folding wheelchair) and 14 C.F.R. § 382.123 

(requirements for stowage of passenger wheelchairs and other assistive devices) of the 

Department's regulations. Virgin America seeks this determination for its existing fleet of 

aircraft, as well as new and renovated aircraft to be added to its fleet. 

I. Background 

Section 382.67 of the Department's regulations requires that U.S. carriers ensure that new 

aircraft ordered after April 5, 1990, or which were delivered after April 5, 1992, have a priority 

space for a folding wheelchair or assistive device. Related Section 382.123 sets forth the rules 

for the use of such priority space. 
Virgin America is in the process of expanding its fleet by acquiring new aircraft and 

substantially renovating used aircraft.' The new aircraft to be delivered will require a priority 

space in the cabin. The used aircraft on order will be extensively renovated to meet Virgin 

America's standards and to maintain a consistent appearance with Virgin America's existing 

aircraft.^ Virgin America presently operates a fleet of ten A319-100 and 22 A320-100 aircraft. 

The A319 and A320 aircraft are particularly ill-suited to the retrofit of priority space. 

See, e.g.. Application of JetBlue Airways Corporation for Equivalent Alternative Determination 

With Respect to 14 CFR § 382.123(c) at 4 (removing a row of seats or variations of 

asymmetrically reducing pitch on one-half the aircraft); Application of US Airways, Inc. for an 

Equivalent Alternative Determination With Respect to 14 C.F.R. 382.123(c) at 6 (removing seat 

rows to accommodate priority space); Application of Aerovias del Continente Americano S.A. at 

2-3 (removing seat row or repitching to accommodate priority space). Indeed, the interior 

dimensions of these aircraft also make the provision of priority space unsuitable for both brand 

new and renovated aircraft due to the limited availability of unused space, as well as the 

difficulty of modifying existing cabin components. 

Virgin America has spent considerable man-hours and resources exploring ways to 

accommodate a priority space in its Airbus aircraft, including (among others) extensive plarming. 

' See http://www.virginamerica.com/press-release/2010/Virgin-America-Spreads-ItsWings-Orders-60-New-Aircraft.html for details of Virgin America's new aircraft order. 

While Virgin America understands that it may continue to utilize the seat strapping 

method, consistent with Order 2010-6-20, it has determined that the equivalent alternative 

proposed herein is preferable to the continued use of seat strapping. 

^ Although not entirely clear in the Department's regulations whether Virgin America is 

required to do so. Virgin America is renovating its used aircraft to "new" aircraft accessibility 

standards. 
design, and engineering of a stowage area under the galley."* Virgin America would suffer 

substantial revenue losses if it was required to remove a three-seat row in order to accommodate 

a retrofit in-cabin priority space. Re-pitching the seats on one side of the aircraft in order to 

accommodate a priority space would require an expensive and time-consuming recertification of 

the aircraft interior, including the engineering analysis, safety assessment reports and testing 

required by the necessary FAA Supplemental Type Certificate. In addition, it would result in an 

aesthetically undesirable and asymmetrical pitch difference between the rows as well as 

uncomfortably small legroom on the re-pitched side of the aircraft. It could also result in a need 

to recertify the aircraft seats used on new aircraft to meet FAA 16G seat standards and Head 

Impact Criteria for the reduced pitch. 

II. Proposed Equivalent Alternative 

Virgin America has developed a comprehensive procedure that provides an equivalent 

method of wheelchair storage on A319^ and A320^ aircraft in Virgin America's fleet. If 

approved by the Department, Virgin America plans to utilize this procedure fleet-wide in lieu of 

seat strapping. In addition to the procedure (outlined below) and the draft internal policy 

documentation already developed to implement this procedure (see Exhibit VX-4), Virgin 

America has designed protective bags and special containment straps (see Exhibits VX-5-7) for 

"* Specifically, Virgin America explored a means of removing four galley carts fi-om under 

the galleys installed in its fleet in order to stow a wheelchair horizontally. However, this proved 

to be unworkable as the wheelchair would extend beyond the galley and into the aisle. 

^ See A319 LOFA at Exhibit VX-1. This LOPA covers A319 aircraft presenfly in Virgin 

America's fleet in a 8 first class /111 seat main cabin configuration. [CONFIDENTIAL 

TREATMENT REQUESTED pursuant to Rule 12] 

^ See A320 LOP As for existing aircraft at Exhibit VX-2. These LOP As cover A320 

aircraft presently in Virgin America's fleet in a 8 first class/141 seat main cabin configuration. 

A320s on order will be configured as per Exhibit VX-3 in a 8 first class/141 seat main cabin 

configurafion. [CONFIDENTIAL TREATMENT REQUESTED pursuant to Rule 12] 
use with this procedure. The straps are webbed nylon of the same strength, material and 

manufacture as the cargo hold webbing already used in these aircraft. The bags are constructed 

of heavy duty vinyl material. The Virgin America procedure would accommodate up to two 

standard size non-motorized wheelchairs on a first-come, first-serve basis. Additional 

wheelchairs would be stowed in the hold consistent with 14 C.F.R. § 382.125. Virgin America 

would publicize this procedure in the Frequently Asked Questions ("FAQs") portion of its 

website. 

a. Pre-Flight 

The central focal points of Virgin America's procedure are guest convenience and 

protection of a guest's wheelchair. Virgin America's procedure provides maximum flexibility to 

its guests: a guest wishing to transport a wheelchair may notify the airline of his or her intent at 

any time following his or her arrival at the airport: either prior to check-in, at check-in, at the 

gate, or on the jetbridge during pre-boarding. This gives the Virgin America guest the freedom 

to determine how long the guest would prefer the wheelchair to remain in his or her possession 

and use, and when, and at which location, he or she may provide the wheelchair to Virgin 

America. Virgin America Guest Service Team (airport) members ("GST") will be trained to 

accept and process a wheelchair at any of the four locations described above. 

b. Acceptance 

When informed that a guest with a wheelchair desires to preboard or to stow her 

wheelchair in the cabin, a Virgin America GST will meet the guest and (if applicable) ask if the 

guest has any special instructions for the disassembly/assembly of the wheelchair, in accordance 

with 14 C.F.R. § 382.129. The GST will provide the guest with a Wheelchair 
Disassembly/Assembly Form. See Exhibit VX-8. Once completed, the form will be physically 

attached to the wheelchair using clip ties. 

c. Transfer and Disassembly 

At the guest's request, a GST will transfer the guest to a wheelchair (or boarding 

wheelchair, if necessary) until boarding. If the guest's wheelchair is accepted at the jet bridge, 

the guest will be transferred to a boarding wheelchair, if necessary. 

The GST will then, if necessary, disassemble the wheelchair for stowage. At the guest's 

request, the GST will do so in the guest's presence. The guest will be provided with a receipt. 

d. Protection and Stowage 

Once disassembled, the wheelchair will be stowed in the protective bag designed by 

Virgin America. Each Virgin America station will be equipped with two such protective bags, 

marked with the station name. Once utilized, the bags will be returned to the station. 

The bagged wheelchair will be stowed vertically by Virgin America personnel in Bin 1-1 

of the A319/A320 cargo holds (divided fi-om Bin 1 by netting) using the straps Virgin America 

has designed specifically for that purpose. See Exhibit VX-7. These straps will be labeled to 

identify them as equipment to remain in Bin 1-1 of the hold. The straps will be connected to 

built-in tie-down points in the floor of the Bin 1-1. If two wheelchairs are presented for stowage 

under this procedure, they will both be secured to the floor and adjacent to one another. Virgin 

America's Guest Services Manual will include instructions on the use of these straps to secure 

wheelchairs, and Virgin America GSTs and appropriate third party ramp personnel will be 

trained in their use. 

Under this procedure. Virgin America will designate Bin 1-1 on a fleet-wide basis as 

exclusive stowage space for wheelchairs and strollers. In the event that space in Bin 1-1 
becomes an issue, wheelchairs will take priority over strollers, which would then be placed with 

baggage in the main cargo bin. 

e. Transport 

Once the wheelchair is stowed, the GST will notify the Inflight Team Leader (lead flight 

attendant) ("ITL") that the item has been stowed in the front of the hold and will be delivered on 

a priority basis to the jet bridge (or other location, such as the baggage area, at the guest's 

request) upon arrival at the guest's destination, and the ITL will notify the guest. The GST will 

also enter a notation in Virgin America's reservations system or contact the destination airport 

Virgin America operations personnel directly so that the station at the guest's destination is 

aware that there is a wheelchair in the hold. This notification will also include the specific 

location at which the guest has requested the wheelchair be returned to the guest upon landing. 

f. Return 

When the aircraft arrives at its destination. Virgin America station personnel will arrange 

for the wheelchair to be removed from the hold on a priority basis as the first item(s) removed 

from the hold, and promptly delivered to the location requested. These tasks will be assigned to 

the GST or GSTs assigned to deplane the aircraft prior to the aircraft's arrival, and designated as 

highest priority. Upon delivery, the wheelchair will be removed from the protective bag and reassembled (if necessary) utilizing the guest's instructions previously attached. 

g. Damage 

In the unlikely event that a wheelchair is damaged while in Virgin America's care, Virgin 

America will reimburse the guest for the reasonable cost of repair and for the reasonable cost of 

a rental replacement of like kind and quality during the time required for repair of the guest's 

wheelchair. Each Virgin America station will also maintain contacts of local wheelchair rental 
facilities, and Virgin America will arrange for a temporary replacement for the guest, or, at the 

guest's preference, reimbursement if the guest chooses to make his or her own arrangements. 

Pursuant to 14 C.F.R. § 382.131 and Virgin America's Contract of Carriage, Virgin America is 

already obligated to reimburse a passenger for loss, damage, or destruction of a wheelchair up to 

the original purchase price of the device. 

HI. Justification 

Virgin America's proposal clearly meets the Department's standards for grant of an 

equivalent alternative determination as Virgin America's proposed alternative will "provide 

substantially equivalent accessibility to passengers with disabilities than compliance with a 

provision of the rule." 73 Fed. Reg. 27614, 27647 (May 13, 2008). The Department adopted the 

priority space requirement as initially applied to carriers operating under Part 121 for two main 

reasons: first, for the passengers' convenience, in order to have the wheelchair close by when 

deplaning and to be able to get as close to the aircraft as possible in one's own wheelchair before 

enplaning; and second, to help prevent damage to, or loss of, wheelchairs along with the "bulk" 

of general passenger checked baggage. Id. at 27626. Under Virgin America's proposed method, 

a passenger would, in fact, be able to get as close to the aircraft as she desired in her own 

wheelchair before checking it, and it would be far better protected from damage, being placed in 

a protective bag and secured in a dedicated area of the cargo hold. To be clear, only wheelchairs 

and strollers will be stowed in this portion of the hold. 

Virgin America's proposal also exceeds the treatment now required to be given to 

wheelchairs that must be checked. Section 382.125(c) requires the "timely return" of such items 

to a passenger, while Section 382.125(d) requires that wheelchairs and assistive devices be 

"among the first items retrieved from the baggage compartment." Virgin America's proposed 
method would ensure that the wheelchair is the first item removed from the cargo hold of the 

aircraft, and that it is available to the passenger as soon as she deplanes. 

Grant of this equivalent alternative application will serve the public interest. First, Virgin 

America's proposed accommodation meets the criteria set forth in the Department's final rule 

and "provides substantially equivalent accessibility" to Virgin America's passengers. Section 

382.3. "[I]n order to be viewed as an equivalent alternative, a policy, practice, accommodation, 

or piece of equipment must really provide substantially equivalent accessibility to passengers 

with disabilities than compliance with a provision of the rule." Final Rule at 27647 (discussing 

Section 382.10). Second, grant of this application will entail a significant cost savings to Virgin 

America. While the Department has indicated that it would not enforce Section 382.123(c) 

pending the outcome of a rulemaking on the subject of seat strapping, the outcome of that yet-tobe-issued rulemaking is both uncertain and likely far in the fiature. Third, Virgin America will 

not be forced to reconfigure its aircraft cabins by removing a row of seats, or performing an 

expensive and unwieldy retrofit if the outcome of the Department's seat strapping rulemaking is 

to prohibit seat strapping.^ 

Virgin America will provide additional data and information to the Department upon 

request, and respectfiilly requests the Department's prompt consideration of this application. 

' The Department has stated that it expects carriers to retrofit covered aircraft in such a 

contingency. Order 2010-6-20 at 2-3. 
WHEREFORE, Virgin America Inc. respectfully requests that the Department promptly 

grant it an equivalent alternative determination concerning compliance with 14 C.F.R. §§ 382.67 

and 382.123 as more fully discussed above. 

Respectfully submitted, 

Pl^iP 

John E. Gillick 

David M. Endersbee 

ZUCKERT, SCOUTT & RASENBERGER, 

L.L.P. 

888 17"^ Street, N.W. 

Washington, D.C. 20036 

Tel: 202-298-8660 

Fax: 202-342-0683 

Email: iegillick@zsrlaw.com 

dmendersbee(a),zsrlaw.com 

Counsel for Virgin America Inc. 

November 2, 2010 
Virgin America Inc. 

Index of Exhibits 

Exhibit 1 

Exhibit 2 

Exhibit 3 

Exhibit 4 

Exhibit 5 

Exhibit 6 

Exhibit 7 

Exhibit 8 

A319 LOPA 

A320 LOP As 

A320 LOPA (fiiture layout) 

Virgin America Policy 

Prototype Storage Bag (Photo) 

Prototype Storage Bag (Diagram) 

Wheelchair Restraint Assembly 

Wheelchair Tag 
Exhibit VX-1 

A319 LOPA 

[CONFIDENTIAL TREATMENT REQUESTED pursuant to Rule 12] 
Exhibit VX-2 

A320 LOP As 

[CONFIDENTIAL TREATMENT REQUESTED pursuant to Rule 12] 
Exhibit VX-3 

A320 LOPA (fiittire layout) 

[CONFIDENTIAL TREATMENT REQUESTED pursuant to Rule 12] 
Exhibit VX-4 

Virgin America Policy 
01.07.01.04 (Collapsible) Personal Wheelchair Stowage Procedure (If Applicable) 

I. Some wlieelchairs are collapsible or may be dismantled and can be stowed in an 

overhead bin. A wheelchair that cannot fit in the overhead can be stowed in Bin 1 of the 

aircraft, using the following priority stowage procedure: 

• A guest may ask that a personal wheelchair be stowed in a priority area of the 

aircraft at any time prior to check-in, at check-in, or on the jetbridge during the 

preboard process. 

• The GST will ask the guest if there are any special instructions for the assembly or 

disassembly of the wheelchair, and ask the guest to complete a Wheelchair 

Assembly/Disassembly Form, which will be attached to the wheelchair once 

completed using clip ties. 

• At the jetbridge, the GST will transfer the guest to an aisle chair or a cabin 

wheelchair for transport onboard the aircraft. 

• To the extent necessary, the GST will disassemble the guest's wheelchair on the 

jetbridge. Upon request, the GST will disassemble the wheelchair in the presence 

of the guest. 

• Once disassembled, the wheelchair will be placed in a protective bag used 

exclusively for wheelchairs and tagged for handling as a fragile item. The bagged 

wheelchair will be tagged using a pink gate check tag and stowed lying down 

securely strapped in Bin 1 of the aircraft. The wheelchair bags will be kept in stock 

at each Virgin America station location. 

• During the disassembly and guest transfer process, the GST will notify the guest 

and the ITL that the wheelchair has been stowed in the forward bin of the aircraft, 

and that it will be delivered priority to the jetbridge upon the aircraft's arrival at its 

destination. 

• The GST will note the presence of the wheelchair in the reservation system to 

ensure the upline station is aware of its presence. 

• Upon the aircraft's arrival at its destination, the GST at the upline station will ensure 

the wheelchair is brought to the jetbridge immediately upon arrival. The protective 

cover will be removed on the jetbridge and the GST will check the instructions sheet 

for any special instructions for re-assembly. The GST will re-assemble the 

wheelchair and make it available to the guest upon deplaning. 
Exhibit VX-5 

Prototype Storage Bag (Photo) 

Exhibit VX-6 

Prototype Storage Bag (Diagram) 
< I " I <^ ' fl I m * " - I «a ' g rn 

in 

p i 

1 

n 

11 

il 
^^hibit VX-7 

"^^'''^-He.,.,,,,, 

Assembly 

Exhibit VX-8 

Wheelchair Tag