[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 [www.gpo.gov]
[FR Doc No: 2022-05869]


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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.

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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 https://www.regulations.gov 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 https://www.regulations.gov, 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 https://www.transportation.gov/privacy.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov, or to the street 
address listed above. Follow the online instructions for accessing the 
dockets.

FOR FURTHER INFORMATION CONTACT: Robert Gorman, Senior Trial Attorney, 
Office of Aviation 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.
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    \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 https://www.gao.gov/assets/710/703687.pdf, at 5.
    \3\ Id. at 6.
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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.
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    \4\ TS T-100 All Segment data, retrieved December 20, 2018 from 
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.
    \5\ 14 CFR 382.41.
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    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.
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    \6\ 85 FR 27 (January 2, 2020); RIN 2105-AE88. Information on 
the Part 1 NPRM can be found at www.regulations.gov; Docket DOT-OST-
2019-0180.
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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.
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    \7\ 53 FR 23574 (June 22, 1988).
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    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'').
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    \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).
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    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\
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    \10\ 55 FR 8008, 8021 (March 6, 1990).
    \11\ Id.
    \12\ Id.
    \13\ Id.
    \14\ 14 CFR 382.63(b).
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    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\
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    \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).
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    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\
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    \18\ 55 FR 8008, 8021.
    \19\ See attachment at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0194.
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    As originally enacted, the ACAA covered only U.S. air carriers. 
However, on April 5, 2000, Congress enacted the Wendell H. Ford 
Aviation Investment and Reform Act for the 21st Century (AIR-21), 
which, among other things, amended the ACAA to include foreign 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.
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    \20\ Public Law 106-181, sec. 707(c), 114 Stat. 61, 158 (2000).
    \21\ 69 FR 64364 (November 4, 2004).
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    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\
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    \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 https://www.transportation.gov/sites/dot.gov/files/docs/Part%20382-2008_1.pdf.
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D. DOT ACCESS Advisory Committee

1. Formation and History of Committee
    On December 7, 2015, the Department issued a Federal Register 
document indicating that it was exploring the feasibility of conducting 
a negotiated rulemaking with respect to six accessibility issues, 
including accessibility of lavatories on single-aisle aircraft.\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\
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    \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 https://www.regulations.gov/document?D=DOT-OST-2015-0246-0092.
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    The Department established and appointed members to the Advisory 
Committee on Accessible Air Transportation (ACCESS Advisory Committee 
or Committee) to negotiate and develop proposed regulations addressing 
accessible in-flight entertainment, accessible lavatories, and service 
animals.\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.
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    \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 https://www.transportation.gov/access-advisory-committee; see also https://www.regulations.gov/docket?D=DOT-OST-2015-0246 (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. https://www.transportation.gov/office-general-counsel/negotiated-regulations/access-committee-ground-rules.
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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\
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    \30\ https://www.transportation.gov/sites/dot.gov/files/docs/Minutes%20-%201st%20Plenary%20Meeting.pdf.
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    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\
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    \31\ https://www.transportation.gov/sites/dot.gov/files/docs/3a.P4.Lav_.Advocate%20Survey%20Results.v2.pdf.
    \32\ Id. at 4.
    \33\ Id. at 3.
    \34\ Id.
    \35\ Id. at 3.
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3. Developments in Accessible Lavatory Design and OBW Design
    The ACCESS Advisory Committee proceedings provided an opportunity 
for manufacturers to demonstrate improvements to the accessibility of 
lavatories on single-aisle aircraft. For example, at the first meeting 
on May 17-18, 2016, 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.
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    \36\ https://www.transportation.gov/sites/dot.gov/files/docs/Airbus%20Presentation%20on%20Lav.pdf. This is the version of 
SpaceFlex known as ``V1.'' Airbus also produces a ``SpaceFlex V2,'' 
which does not increase the size of the lavatory, but provides a 
transfer seat to assist passengers in transitioning from the OBW to 
the aircraft toilet seat.
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    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.
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    \37\ https://www.transportation.gov/sites/dot.gov/files/docs/P3.Lav_.2.Block_.Bombardier%20Presentation.v2.2016.07.11.pdf.
    \38\ https://www.transportation.gov/sites/dot.gov/files/docs/resources/individuals/aviation-consumer-protection/285871/july-meeting-minutes.pdf.
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    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.
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    \39\ These became known as ``Tier 2'' improvements, but were not 
adopted by the Committee.
    \40\ https://www.transportation.gov/sites/dot.gov/files/docs/3a.OEM_.Airline%20Accessible%20Lav.Position.8.15.16..pdf.
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5. Consensus and Production of Term Sheet
    On November 22, 2016, the ACCESS Advisory Committee reached 
consensus on 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.
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    \41\ https://www.transportation.gov/office-general-counsel/negotiated-regulations/final-resolution-access-committee.
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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.
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    \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.
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    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.
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    \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 https://www.transportation.gov/sites/dot.gov/files/docs/3a.P4.Lav_.OEM_.Airline%20Accessible%20Lav.Position.8.15.16..pdf, 
slide 20).
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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)''). https://www.transportation.gov/sites/dot.gov/files/docs/Annex%20A.Lav_.Agreed%20Text.pdf.
    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 https://www.gao.gov/assets/710/703687.pdf.
    \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 https://saemobilus.sae.org/content/2021-01-0918. 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.'' https://www.transportation.gov/sites/dot.gov/files/docs/3a.OEM_.Airline%20Accessible%20Lav.Position.8.15.16..pdf.
    \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 https://www.wsj.com/articles/youre-not-getting-bigger-the-airplane-bathroom-is-getting-smaller-1535553108.
    \65\ ``Aircraft Lavatory Accessibility Joint Airline and 
Manufacturer Presentation,'' available at https://www.transportation.gov/sites/dot.gov/files/docs/3a.OEM_.Airline%20Accessible%20Lav.Position.8.15.16..pdf.
---------------------------------------------------------------------------

    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


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