[Federal Register Volume 78, Number 218 (Tuesday, November 12, 2013)]
[Rules and Regulations]
[Pages 67882-67918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-26749]



[[Page 67881]]

Vol. 78

Tuesday,

No. 218

November 12, 2013

Part V





Department of Transportation





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Office of the Secretary





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14 CFR Parts 382 and 399

49 CFR Part 27





Nondiscrimination on the Basis of Disability in Air Travel: 
Accessibility of Web Sites and Automated Kiosks at U.S. Airports and 
Accessibility of Aircraft and Stowage of Wheelchairs; Final Rules

  Federal Register / Vol. 78 , No. 218 / Tuesday, November 12, 2013 / 
Rules and Regulations  

[[Page 67882]]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Parts 382 and 399

49 CFR Part 27

[Docket No. DOT-OST-2011-0177]
RIN 2105-AD96


Nondiscrimination on the Basis of Disability in Air Travel: 
Accessibility of Web Sites and Automated Kiosks at U.S. Airports

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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SUMMARY: The Department of Transportation is amending its rules 
implementing the Air Carrier Access Act (ACAA) to require U.S. air 
carriers and foreign air carriers to make their Web sites that market 
air transportation to the general public in the United States 
accessible to individuals with disabilities. In addition, the 
Department is amending its rule that prohibits unfair and deceptive 
practices and unfair methods of competition to require ticket agents 
that are not small businesses to disclose and offer Web-based fares to 
passengers who indicate that they are unable to use the agents' Web 
sites due to a disability. DOT is also requiring U.S. and foreign air 
carriers to ensure that kiosks meet detailed accessibility design 
standards specified in this rule until a total of at least 25 percent 
of automated kiosks in each location at the airport meet these 
standards. In addition, the Department is amending its rule 
implementing the Rehabilitation Act to require U.S. airport operators 
meet the same accessibility standards.

DATES: This rule is effective December 12, 2013.

FOR FURTHER INFORMATION CONTACT: Kathleen Blank Riether, Senior 
Attorney, Office of the Assistant General Counsel for Aviation 
Enforcement and Proceedings, U.S. Department of Transportation, 1200 
New Jersey Ave. SE., Washington, DC 20590, 202-366-9342 (phone), 202-
366-7152 (fax), [email protected]. You may also contact 
Blane A. Workie, Deputy Assistant General Counsel, Office of the 
Assistant General Counsel for Aviation Enforcement and Proceedings, 
Department of Transportation, at the same address, 202-366-9342 
(phone), 202-366-7152 (fax), [email protected]. You may obtain 
copies of this rule in an accessible format by contacting the above 
named individuals.

SUPPLEMENTARY INFORMATION: The Department of Transportation is amending 
its rule implementing the Air Carrier Access Act (ACAA) to require U.S. 
air carriers and foreign air carriers to make their Web sites that 
market air transportation to the general public in the United States 
accessible to individuals with disabilities. Specifically, we are 
requiring U.S. and foreign air carriers that operate at least one 
aircraft having a seating capacity of more than 60 passengers to ensure 
that their primary Web sites are accessible. The requirements will be 
implemented in two phases. Web pages that provide core air travel 
services and information (e.g., booking or changing a reservation) must 
be accessible by December 12, 2015. All remaining pages on a carrier's 
Web site must be accessible by December 12, 2016. Web sites must 
conform to the standard for accessibility contained in the widely 
accepted Web site Content Accessibility Guidelines (WCAG) 2.0 and meet 
the Level AA Success Criteria. In addition, the Department is amending 
its rule that prohibits unfair and deceptive practices and unfair 
methods of competition to require ticket agents that are not small 
businesses to disclose and offer Web-based fares on or after June 10, 
2014, to passengers who indicate that they are unable to use the 
agents' Web sites due to a disability.
    DOT is also requiring U.S. and foreign air carriers that own, 
lease, or control automated airport kiosks at U.S. airports with 10,000 
or more annual enplanements to ensure that kiosks installed after 
December 12, 2016, meet detailed accessibility design standards 
specified in this rule until a total of at least 25 percent of 
automated kiosks in each location at the airport meet these standards. 
In addition, accessible kiosks provided in each location at the airport 
must provide all the same functions as the inaccessible kiosks in that 
location. These goals must be met by December 12, 2022. In addition, 
the Department is amending its rule implementing the Rehabilitation Act 
to require U.S. airport operators that jointly own, lease, or control 
automated airport kiosks with U.S. or foreign air carriers to work with 
the carriers to ensure that the kiosks installed after December 12, 
2016, meet the same accessibility standards. The accessibility standard 
for automated airport kiosks set forth in this rule is based, in part, 
on the standard for automated teller and fare machines established by 
the Department of Justice in the 2010 amendment to its Americans with 
Disabilities Act (ADA) rules.

Executive Summary

    The purpose of this rulemaking is to ensure that passengers with 
disabilities have equal access to the same air travel-related 
information and services that are available to passengers without 
disabilities through airline Web sites and airport kiosks. In the 
Department's view, equal access means that passengers with disabilities 
can obtain the same information and services on airline Web sites and 
airport kiosks as conveniently and independently as passengers without 
disabilities. We expect this rulemaking to be a major step toward 
ending unequal access in air transportation for people with 
disabilities resulting from inaccessible carrier Web sites and airport 
kiosks.
    Today, individuals with disabilities often cannot use an airline's 
Web site because it is not accessible. There are many disadvantages to 
not being able to do so even with the existing prohibition on airlines 
charging fees to passengers with disabilities for telephone or in-
person reservations, or not making web fare discounts available to 
passengers with disabilities who cannot use inaccessible Web sites. For 
example, the cheapest prices for air fares and ancillary services are 
almost always on the airline's Web site. As a practical matter, the 
cheapest fares may not be made available to many consumers with 
disabilities who book by phone or in person as they may be unaware of 
their right to ask for the Web fare discounts. A few airlines also do 
not have telephone reservation operations or ticket offices, making it 
particularly difficult for passengers with disabilities to purchase 
tickets from them. Inaccessible Web sites also prevent persons with 
disabilities from checking out many airlines' fares online for the best 
price before making a choice, booking an online reservation any time of 
day or night, or avoiding long wait times associated with making 
telephone reservations. Many also can't always take advantage of 
checking-in early online to save time as passengers without 
disabilities can. The reality is that some people with disabilities 
currently lack access to most, if not all, of the information and 
services on certain carriers' Web sites that are available to their 
non-disabled counterparts.
    As for airport kiosks, many passengers today use airport kiosks 
when arriving at the airport to finalize their travel preparations, 
whether scanning a passport to check in, printing a boarding pass, 
cancelling/rebooking a ticket, or printing baggage tags. The 
convenience of airport kiosks simplifies the airport

[[Page 67883]]

experience of countless travelers as they independently conduct the 
necessary transactions and head to their departure gates. For many 
passengers with disabilities who are otherwise self-sufficient, using 
an airport kiosk can only be done with assistance from others. In many 
instances, passengers who cannot use a kiosk due to a disability are 
simply directed to a line at the ticket counter where they receive 
expedited service from an agent. This is not a good solution as it 
denies travelers with disabilities their rights to function 
independently and excludes them from the advantages other air travelers 
enjoy in using kiosks.
    The legal authority for the Department's regulatory action 
affecting 14 CFR part 382 is 49 U.S.C. 41702, 41705, 41712, and 41310. 
Our legal authority for regulatory action affecting 49 CFR part 27 is 
Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 
794). Below is a summary of the major provisions of this regulatory 
action.

                       Summary of Major Provisions
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                         Web Site Accessibility
------------------------------------------------------------------------
Scope/Coverage.........................   Requires U.S. and
                                          foreign carriers that operate
                                          at least one aircraft having a
                                          seating capacity of more than
                                          60 passengers, and own or
                                          control a primary Web site
                                          that markets air
                                          transportation to consumers in
                                          the United States to ensure
                                          that public-facing pages on
                                          their primary Web site are
                                          accessible to individuals with
                                          disabilities.
                                          Requires ticket agents
                                          that are not small businesses
                                          to disclose and offer Web-
                                          based fares to passengers who
                                          indicate that they are unable
                                          to use an agent's Web site due
                                          to a disability.
Web Site Accessibility Standard........   Requires carriers to
                                          ensure that Web pages on their
                                          primary Web sites associated
                                          with core travel information
                                          and services conform to all
                                          Level AA success criteria of
                                          the Web Content Accessibility
                                          Guidelines (WCAG) 2.0 within
                                          two years of the rule's
                                          effective date and that all
                                          other Web pages on their
                                          primary Web sites are
                                          conformant within three years
                                          of the rule's effective date.
Usability Testing of Web Sites.........   Requires carriers to
                                          test the usability of their
                                          accessible primary Web sites
                                          in consultation with
                                          individuals or organizations
                                          representing visual, auditory,
                                          tactile, and cognitive
                                          disabilities.
Equivalent Service.....................   Requires carriers to
                                          provide applicable Web-based
                                          fare discounts and other Web-
                                          based amenities to customers
                                          with a disability who cannot
                                          use their Web sites due to a
                                          disability.
                                          Requires ticket agents
                                          to provide applicable Web-
                                          based fare discounts on and
                                          after 180 days from the rule's
                                          effective date to customers
                                          with a disability who cannot
                                          use an agent's Web sites due
                                          to a disability.
Online Disability Accommodation           Requires carriers to
 Requests.                                make an online service request
                                          form available within two
                                          years of the rule's effective
                                          date for passengers with
                                          disabilities to request
                                          services including, but not
                                          limited to, wheelchair
                                          assistance, seating
                                          accommodation, escort
                                          assistance for a visually
                                          impaired passenger, and
                                          stowage of an assistive
                                          device.
------------------------------------------------------------------------
                  Automated Airport Kiosk Accessibility
------------------------------------------------------------------------
Scope, Coverage, and Kiosk                Requires U.S. and
 Accessibility.                           foreign air carriers that own,
                                          lease, or control automated
                                          airport kiosks at U.S.
                                          airports with 10,000 or more
                                          annual enplanements to ensure
                                          that all new automated airport
                                          kiosks installed three or more
                                          years after the rule's
                                          effective date meet required
                                          technical accessibility
                                          standards until at least 25
                                          percent of automated kiosks in
                                          each location at the airport
                                          is accessible. Accessible
                                          kiosks provided in each
                                          location at the airport must
                                          provide all the same functions
                                          as the inaccessible kiosks in
                                          that location. These goals
                                          must be met within ten years
                                          after the rule's effective
                                          date.
                                          Requires airlines and
                                          airports to ensure that all
                                          shared-use automated airport
                                          kiosks installed three or more
                                          years after the rule's
                                          effective date meet required
                                          technical accessibility
                                          standards until at least 25
                                          percent of automated kiosks in
                                          each location at the airport
                                          is accessible. Accessible
                                          kiosks provided in each
                                          location at the airport must
                                          provide all the same functions
                                          as the inaccessible kiosks in
                                          that location. These goals
                                          must be met within ten years
                                          after the rule's effective
                                          date.
Identification and Maintenance of         Requires carriers and
 Accessible Kiosks.                       airports to ensure that
                                          accessible automated airport
                                          kiosks are visually and
                                          tactilely identifiable and
                                          maintained in working
                                          condition.
Joint and Several Liability............   Makes carriers and
                                          airports jointly and severally
                                          liable for ensuring that
                                          shared-use automated airport
                                          kiosks meet accessibility
                                          requirements.
Priority Access........................   Requires carriers to
                                          give passengers with a
                                          disability requesting an
                                          accessible automated kiosk
                                          priority access to any
                                          available accessible kiosk the
                                          carrier owns, leases, or
                                          controls in that location at
                                          the airport.

[[Page 67884]]

 
Equivalent Service.....................   Requires carriers to
                                          provide equivalent service
                                          upon request to passengers
                                          with a disability who cannot
                                          readily use their automated
                                          airport kiosks.
------------------------------------------------------------------------

Summary of Regulatory Analysis

    The regulatory analysis summarized in the table below shows that 
the estimated monetized costs of the Web site and kiosk requirements 
exceed their estimated monetized benefits at the 7% discount rate but 
the monetized benefits exceed the costs at the 3% discount rate. The 
present value of monetized net benefits for a 10-year analysis period 
is estimated to be -$4.0 million at a 7% discount rate and $13.7 
million at a 3% discount rate. Additional benefits and costs were also 
identified for which quantitative estimates could not be developed. The 
Department believes that the qualitative and non-quantifiable benefits 
of the Web site and kiosk accessibility requirements combined with the 
quantifiable benefits justify the costs and make the total benefits of 
the rule exceed the total costs of the rule. A more detailed discussion 
of the monetized benefits and costs for the final Web site and kiosk 
accessibility requirements is provided in the Regulatory Analysis and 
Notices section below.

                              Present Value of Net Benefits for Rule Requirements*
                                                   [millions]
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                                      Discounting period/                                         Present value
    Monetized benefits and costs              rate              Web sites          Kiosks          (millions)
----------------------------------------------------------------------------------------------------------------
Monetized Benefits.................  10 Years, 7%                      $75.9             $34.8            $110.7
                                      discounting.
                                     10 Years, 3%                       90.3              42.0             132.3
                                      discounting.
Monetized Costs....................  10 Years, 7%                       79.8              34.9             114.7
                                      discounting.
                                     10 Years, 3%                       82.5              36.1             118.6
                                      discounting.
Monetized Net Benefits.............  10 Years, 7%                      (3.9)             (0.1)             (4.0)
                                      discounting.
                                     10 Years, 3%                        7.8               5.9              13.7
                                      discounting.
----------------------------------------------------------------------------------------------------------------
* Present value in 2016 for Web site requirements and 2017 for kiosk requirements.

Background

    On May 13, 2008, the Department of Transportation (``Department'' 
or ``DOT,'' also ``we'' or ``us'') amended 14 CFR Part 382 (Part 382), 
its ACAA rule, to apply the rule to foreign carriers and to add new 
provisions concerning passengers who use medical oxygen and those who 
are deaf or hard of hearing, among other things.\1\ The final rule 
consolidated and took final action on proposals from three separate 
notices of proposed rulemaking (NPRM).\2\ In the preamble of the 2008 
final rule, we announced that we would defer final action on certain 
proposals and issues set forth in the three NPRMs in order to seek 
further information on their cost and technical feasibility through a 
supplemental notice of proposed rulemaking (SNPRM). Among the issues we 
intended to revisit in the SNPRM was a proposal in the initial NPRM to 
require carriers and their agents to make their Web sites accessible to 
people with vision impairments and other disabilities. See 69 FR 64364, 
64382-83 (November 4, 2004), hereinafter ``Foreign Carrier NPRM.'' We 
also pledged to seek further comment on kiosk accessibility, which we 
had discussed in the preamble of the initial NPRM. See Id. at 64370. In 
the 2008 final rule, as an interim measure, we mandated that carriers 
ensure passengers with disabilities who cannot use inaccessible kiosks 
or inaccessible Web sites are provided equivalent service.
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    \1\ 73 FR 27614-27687 (May 13, 2008), as modified by 74 FR 
11469-11472 (March 18, 2009) and 75 FR 44885-44887 (July 30, 2010).
    \2\ Nondiscrimination on the Basis of Disability in Air Travel, 
Notice of Proposed Rulemaking, 69 FR 64364-64395 (November 4, 2004); 
Nondiscrimination on the Basis of Disability in Air Travel--Medical 
Oxygen and Portable Respiration Assistive Devices, Notice of 
Proposed Rulemaking, 70 FR 53108-53117 (September 7, 2005); and 
Accommodations for Individuals Who Are Deaf, Hard of Hearing, or 
Deaf-Blind, Notice of Proposed Rulemaking, 71 FR 9285-9299 (February 
23, 2006).
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    On September 26, 2011, the Department published an SNPRM proposing 
to require U.S. and foreign air carriers to make their Web sites 
accessible to individuals with disabilities and to ensure that their 
ticket agents do the same. We also proposed to require U.S. and foreign 
air carriers to ensure that their proprietary and shared-use automated 
airport kiosks are accessible to individuals with disabilities. In 
addition, we proposed to revise our rule implementing Section 504 of 
the Rehabilitation Act of 1973, as amended (29 U.S.C. 794) to require 
U.S. airports to work with airlines to ensure that shared-use automated 
airport kiosks are accessible to individuals with disabilities. The 
SNPRM also set forth the technical criteria and procedures that we 
proposed to apply to automated airport kiosks and to Web sites on which 
air transportation is marketed to the general public in the United 
States to ensure that individuals with disabilities can readily use 
these technologies to obtain the same information and services as other 
members of the public. See 76 FR 59307 (September 26, 2011). Comments 
on the SNPRM were to be filed by November 25, 2011.

Request for Clarification and Extension of Comment Period

    In October 2011, the Department received a joint request from the 
Air Transport Association (now Airlines for America), the International 
Air Transport Association, the Air Carrier Association of America, and 
the Regional Airline Association for clarification of the proposal and 
a 120-day extension of the comment period. The carrier associations 
specifically asked DOT to clarify the following with regard to our Web 
site accessibility proposals: 1) whether the scope of the proposed Web 
site accessibility requirements included the non-U.S. Web sites of U.S. 
carriers (e.g., country-specific Web sites maintained by U.S. carriers 
for the purpose of selling to consumers in countries other than the 
United States); 2) the meaning of the terms ``primary,'' ``main,'' and 
``public-facing'' as used in the proposed Web

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site requirements; 3) whether the term ``alternate conforming version'' 
as described in the SNPRM would encompass ``text-only'' features 
offered by some carriers on their primary Web sites; 4) whether 
carriers would be responsible under the proposed requirement to ensure 
that the Web sites of large tour operators and carrier alliances are 
accessible; 5) the Department's authority to regulate ticket agent Web 
sites directly under 49 U.S.C. 41712, rather than indirectly through 
the carriers under the ACAA; and 6) the basis for our estimates of the 
recurring costs associated with maintaining Web site accessibility. 
Regarding the Department's kiosk accessibility proposals, the carrier 
associations asked for clarification concerning: 1) whether the 
Department intended to require some retrofitting of automated airport 
kiosks in the final rule in the absence of a specific proposal on the 
issue in the SNPRM; and 2) whether automated ticket scanners at U.S. 
airports would be covered by the proposed accessibility requirements. 
We received additional requests shortly thereafter from the Association 
of Asia Pacific Airlines (AAPA) and the Interactive Travel Services 
Association (ITSA) to extend the comment deadline.
    By early November 2011, members of the disability community and 
advocacy organizations were also requesting that we delay the closing 
of the comment period until accessibility issues concerning the comment 
form available at www.regulations.gov could be resolved. In response, 
we sought expedited action from the Regulations.gov workgroup to 
correct the accessibility problems with the form and issued a notice in 
the Federal Register on November 21, 2011, outlining alternative 
methods for submitting comments until the comment form could be made 
fully accessible. See 76 FR 71914 (November 21, 2011). This notice also 
addressed the carrier associations' clarification requests and extended 
the public comment period until January 9, 2012.
    We responded to the carrier associations' inquiries concerning our 
Web site accessibility requirements by explaining that it was our 
intention to exclude from the accessibility requirements both U.S. and 
foreign air carrier Web sites that market air transportation solely to 
consumers outside of the United States. We also further defined 
``public-facing'' Web pages as those on a carrier's or agent's Web site 
intended for access and use by the general public rather than for 
limited access (e.g., by carrier employees only). For carriers that 
own, lease, or control multiple Web sites that market air 
transportation and offer related services and information, we explained 
that its ``primary'' or ``main'' Web site is the one accessed upon 
entering the uniform resource locator ``www.carriername.com'' in an 
Internet browser from a standard desktop or laptop computer. We note 
that some carriers use their IATA airline designator code or other 
convention in their primary Web site URL (e.g., www.aa.com, www.virgin-atlantic.com). We further explained that a carrier's text-only Web page 
may only be considered a conforming alternate version if (1) it 
provides the same content and functionality as the corresponding non-
conforming page on the carrier's primary Web site, (2) it can be 
reached via an accessible link from the primary Web site, (3) the 
content conforms with WCAG 2.0 Level A and AA success criteria, and (4) 
it is promptly updated to reflect all changes to content available to 
its non-disabled customers on the primary Web site. In response to the 
request for clarification regarding the applicability of the 
accessibility requirements to ticket agent Web sites, we also explained 
that the requirements would apply to Web sites of large tour operators, 
since both travel agents and tour operators fall within the definition 
of ticket agent found in 49 U.S.C. 40102(a)(45). Carrier alliance Web 
sites, on the other hand, are operated by carriers but are not primary 
carrier Web sites and therefore would not be covered.
    Regarding the question raised about the Department's assertion of 
its authority to regulate ticket agents directly while proposing to 
regulate ticket agents indirectly through the carriers, we stated that 
it was our intention to gather more information from the public about 
the course of action that would best serve the public interest. We 
stated in the notice that the Department's authority under 49 U.S.C. 
41712 extends to unfair practices, including discrimination against a 
protected class of consumers by ticket agents,\3\ in this case 
discrimination against individuals with disabilities who are excluded 
from using the agents' inaccessible Web sites solely due to their 
disabilities. We acknowledged that the Department of Justice (DOJ) was 
also likely to mandate that ticket agents make their Web sites 
accessible under a future amendment to that agency's rule implementing 
title III of the ADA. At the same time, we stated our intention to 
pursue a regulatory approach vis-[agrave]-vis the accessibility of 
ticket agent Web sites that would best serve the goal of achieving Web 
site accessibility for all in the shortest reasonable time frame. 
Finally, we corrected the errors in the SNPRM and preliminary 
regulatory evaluation concerning the estimated annual cost of 
maintaining Web site accessibility and re-explained the basis of the 
cost estimate.
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    \3\ 49 U.S.C. 41712 authorizes the Secretary of Transportation 
to investigate and determine whether an air carrier, foreign air 
carrier, or ticket agent has been or is engaged in an unfair or 
deceptive practice or an unfair method of competition in air 
transportation or the sale of air transportation, and if so, to stop 
such practice or method.
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    Regarding the carrier associations' inquiries about our proposals 
concerning accessible automated airport kiosks, we explained that: (1) 
Although we did not propose to require retrofitting of existing kiosks, 
we were seeking information about the technical feasibility and cost 
impact of retrofitting some number of kiosks before the end of their 
life cycle if that should be necessary to ensure at least some 
accessible kiosks in every location at the airport within a reasonable 
time after the rule goes into effect; and (2) automated ticket scanners 
would fall within the scope of automated kiosks the Department intended 
to cover under the proposed requirements.
    The Department received 84 comments on issues raised in the SNPRM 
from industry and advocacy organizations, academic institutions, and 
members of the public. The industry comments included: two from airline 
associations (the Association of Asia Pacific Airlines (AAPA), as well 
as a joint submission by Airlines for America (A4A), the International 
Air Transport Association (IATA), Regional Airline Association (RAA) 
and Air Carrier Association of America that also included comments from 
the Airports Council International--North America (ACI-NA)), two from 
airports (San Francisco International and Denver International), three 
from U.S. carriers (Spirit Airlines, Allegiant Air, LLC, and Virgin 
America), four from foreign air carriers (Air New Zealand Limited, All 
Nippon Airways, Condor Flugdienst GmbH, and El Al Israel Airlines 
Ltd.), four from travel agency or tour operator associations (a joint 
submission by the American Society of Travel Agents (ASTA) and the 
National Tour Association (NTA), a joint submission by NTA and Student 
and Youth Travel Association (SYTA), as well as separate submissions by 
the Interactive Travel Services Association (ITSA), and the United 
States Tour Operators Association (USTOA)), and one from a trade 
association representing leading companies in the information and

[[Page 67886]]

communication technology sector (Information Technology Industry 
Council (ITI)). Advocacy organization comments included one airline 
passenger consumer organization (Association for Airline Passenger 
Rights) and 11 submissions from disability advocacy organizations (a 
joint submission by the American Council of the Blind (ACB) and 
American Foundation of the Blind (AFB), Consortium for Citizens with 
Disabilities (CCD), a joint submission by the National Association of 
the Deaf (NAD), Deaf and Hard of Hearing Consumer Advocacy Network 
(DEAFCAN), Telecommunications for Deaf and Hard of Hearing, Inc. 
(TDHH), Association of Late-Deafened Adults, Inc. (ALDA), Hearing Loss 
Association of America (HLAA), and California Coalition of Agencies 
Serving the Deaf and Hard of Hearing (CCASDHH), and individual 
submissions by Disability Rights New Jersey (DRNJ), Silicon Valley 
Independent Living Center (SVILC), National Federation of the Blind 
(NFB), United Spinal Association (United Spinal), Association of Blind 
Citizens (ABC), National Council on Independent Living (NCIL), American 
Association of People with Disabilities (AAPD), Paralyzed Veterans of 
America (PVA), and Open Doors Organization (ODO)). Comments from 
academic institutes included one each from the Burton Blatt Institute 
(BBI) at Syracuse University, the Department of Computer and 
Information Sciences at Towson University, and the Trace Research and 
Development Center (Trace Center) at the University of Wisconsin, and 
two from the Cornell e-Rulemaking Initiative (CeRI) at Cornell 
University. There were also 22 individual and joint submissions from 
students at the University of Pittsburgh School of Law. Nearly 30 
individual members of the public also posted comments, 21 of whom 
identified themselves as persons with disabilities or relatives of the 
same.
    One submission from the Cornell e-Rulemaking Initiative consisted 
of summaries of the public discussion on the SNPRM proposals that 
occurred on its Regulation Room Web site, http://www.regulationroom.org. The Regulation Room Web site is a pilot project 
in which members of the public can learn about and discuss proposed 
Federal regulations and provide feedback to agency decision makers. The 
Department partnered with Cornell University on this open government 
initiative of the Obama administration in order to discover the best 
ways to use Web 2.0 and social networking technologies to increase 
effective public involvement in the rulemaking process. During the 
period the SNPRM was available for comment on the Regulation Room Web 
site, there were nearly 8,000 unique visitors to the site. Those who 
registered to participate in the discussion totaled 53 and of those, 29 
identified as having a disability. A total of 103 comments were posted 
by 31 of the 53 registered respondents, with 18 comments submitted by 
respondents identifying as having a disability. The Regulation Room 
submitted summaries to the Department of the online discussions 
addressing the accessibility standards, applicability, scope of the 
requirements, benefits and costs, and implementation approach of the 
proposed accessibility requirements for both Web sites and kiosks.
    The Department has carefully reviewed and considered all the 
comments received. A summary of the proposed requirements and related 
questions asked in the SNPRM, the public comments responsive to those 
proposals, and the Department's responses are set forth in the sections 
that follow.

Summary of Comments and Responses

Web Site Accessibility

    In the September 2011 SNPRM, we proposed to require that U.S. and 
foreign air carriers ensure that the public-facing content of a primary 
Web site they own or control that markets air transportation \4\ to the 
general public in the United States conforms to the WCAG 2.0 Success 
Criteria and all Conformance Requirements at Level A and Level AA. We 
explained that the proposed requirements would apply to foreign 
carriers only with respect to public-facing pages on Web sites they own 
or control that market air transportation to the general public in the 
United States and made clear in the November 2011 notice that this same 
limitation would apply to U.S. carriers as well. For both U.S. and 
foreign carriers, our intent was to exclude from coverage public-facing 
content on primary Web sites they own or control that market flights to 
the general public outside of the United States. We explained that the 
characteristics of a covered primary Web site that markets air 
transportation to the general public inside the United States includes, 
but is not limited to, a site that: (1) Contains an option to view 
content in English, (2) advertises or sells flights operating to, from, 
or within the United States, and (3) displays fares in U.S. dollars. We 
note that non-English (e.g., Spanish) Web sites targeting a U.S. market 
segment would also be covered; whereas Web sites that block sales to 
customers with U.S. addresses or telephone numbers, even if in English, 
would not. We also stated our intention to continue requiring carriers 
to make applicable discounted Web-based fares and other Web-based 
amenities available to passengers who self-identify as being unable to 
use an inaccessible Web site due to their disability and to extend the 
requirement to do the same for passengers who self-identify as being 
unable to use the carrier's Web site that meets the WCAG 2.0 standard 
due to their disability.
---------------------------------------------------------------------------

    \4\ 49 U.S.C. 40102(a)(5) defines ``air transportation'' as 
foreign air transportation, interstate air transportation, or the 
transportation of mail by aircraft. 49 U.S.C. 40102(a)(23) defines 
``foreign air transportation'' as the transportation of passengers 
or property by aircraft as a common carrier for compensation, or the 
transportation of mail by aircraft, between a place in the United 
States and a place outside of the United States when any part of the 
transportation is by aircraft. 49 U.S.C. 40102(a)(25) defines 
``interstate transportation'' as the transportation of passengers or 
property by aircraft as a common carrier for compensation, or the 
transportation of mail by aircraft between a place in a State, 
territory, or possession of the United States and (i) a place in the 
District of Columbia or another State, territory, or possession of 
the United States; (ii) Hawaii and another place in Hawaii through 
the airspace over a place outside Hawaii; (iii) the District of 
Columbia and another place in the District of Columbia; or (iv) a 
territory or possession of the United States and another place in 
the same territory or possession; and when any part of the 
transportation is by aircraft.
---------------------------------------------------------------------------

    In addition to the content on their primary Web sites, the 
Department proposed to require U.S. and foreign carriers to ensure that 
when their ticket agents are providing schedule and fare information 
and marketing covered air transportation services to the general public 
in the United States on Web sites, that these ticket agent Web sites 
also meet the WCAG 2.0 standard. We proposed to limit the scope of the 
carriers' responsibility to ensure agent Web site accessibility to the 
Web sites of agents that are not small businesses as defined by the 
Small Business Administration under 13 CFR 121.201 (i.e., travel agents 
or tour operators with annual receipts exceeding $19 million). 
Specifically with regard to small ticket agents, we proposed to permit 
carriers to market air transportation on the inaccessible Web sites of 
such agents but at the same time require carriers to ensure that those 
small agents make Web-based discount fares available and waive 
applicable reservation fees to a passenger who indicates that he or she 
is unable to use an agent's Web site and purchases tickets using 
another method, unless the fee would apply to other customers 
purchasing the same ticket online.

[[Page 67887]]

    Finally, we proposed a tiered implementation approach in which the 
WCAG 2.0 standard at Level A and AA would apply to (1) a new or 
completely redesigned primary Web site brought online 180 or more days 
after the effective date of the final rule; (2) Web pages on an 
existing Web site associated with core air travel services and 
information \5\ to be conformant either on a primary Web site or by 
providing accessible links from the associated pages on a primary Web 
site to corresponding accessible pages on a mobile Web site by one year 
after the final rule's effective date; and (3) all covered Web pages on 
a carrier's primary Web site by two years after the final rule's 
effective date.
---------------------------------------------------------------------------

    \5\ In the September 2011 SNPRM, the Department defined core air 
travel services and information on Web sites as the booking and 
check-in functions as well as information pertaining to personal 
flight itinerary, flight status, frequent flyer account, flight 
schedules, and carrier contact information available to consumers on 
a carrier's primary Web site.
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1. Technical Standard for Web Site Accessibility
    The SNPRM: The Department proposed WCAG 2.0 at Level AA (Level AA 
includes all the Level A success criteria) as the required 
accessibility standard for all public-facing Web pages involved in 
marketing air transportation to the general public in the United States 
on primary carrier and ticket agent Web sites.
    Comments: The comments submitted jointly by A4A, IATA, ACI-NA, RAA, 
and the Air Carrier Association of America opposed mandating a single 
technical standard for Web site accessibility. They supported various 
compliance options that, for the most part, would provide increased 
access for passengers with disabilities to some, but not all, of the 
content on primary carrier Web sites through an alternative text-only 
or Mobile Web site conformant with any of the following standards: WCAG 
1.0, WCAG 2.0 at Level A, existing Section 508 standards, or Mobile Web 
Best Practices (MWBP) 1.0 (if applicable). Two of the options they 
proposed would allow carriers to establish an alternative Web site 
(i.e., text-only or mobile Web site) containing only the proposed core 
air travel information and essential functions to which they would 
apply the accessibility standard of their choice. Two other options 
they proposed would allow them to apply the standard of choice to 
limited portions of a carrier's primary Web site (i.e., either to newly 
designed Web pages or to Web pages associated with core air travel 
services and information). These compliance options proposed by the 
carrier associations, as well as other electronic information and 
communication technology issues discussed in the SNPRM, are presented 
in greater detail below in the section on Scope. Regarding compliance 
with the WCAG 2.0 standard at Level AA, the carrier associations 
asserted that requiring carriers to comply with WCAG 2.0 would ``set a 
very high bar that exceeds federal government Web site accessibility 
requirements.'' They commented that no government agency currently is 
required to meet the WCAG 2.0 Level A and AA standards, maintaining 
that the section 508 Web site standard agencies are required to meet is 
the equivalent of the WCAG 1.0 standard.\6\ They argued that the 
airline industry should not be the ``test case'' or the first to 
implement WCAG 2.0.
---------------------------------------------------------------------------

    \6\ See 36 CFR 1194.22, Note par. 2, stating that ``Web pages 
that conform to WCAG 1.0, level A (i.e., all priority 1 checkpoints) 
must also meet paragraphs (l), (m), (n), (o), and (p) of this 
section to comply with this section.''
---------------------------------------------------------------------------

    Although the Association of Asia Pacific Airlines (AAPA) did not 
specifically oppose the WCAG 2.0 standard, they noted that requiring 
airlines to apply the standard to primary Web sites which include 
covered and non-covered content could result in the airlines having to 
revamp Web pages and shared electronic data sources outside the scope 
of the requirement from which the covered Web sites obtain information. 
This concern was echoed by foreign carriers that commented 
individually, although none of the comments provided any information 
about the amount of non-covered content they anticipated having to 
change. AAPA also expressed concern that foreign carriers may 
eventually be required by the law of their countries to meet a 
different Web site accessibility standard. Another carrier commenting 
individually supported compliance with the WCAG 2.0 Level A standard 
but only for those portions of its Web site involved in providing core 
air transportation information and functions. Other carriers objected 
to the Department requiring the WCAG 2.0 standard altogether, opining 
that it is ``not widely used on commercial Web sites'' or that the 
technical criteria are ``highly subjective.'' One U.S. carrier was 
unopposed to the WCAG 2.0 Level AA standard as long as the Department 
allowed two years to achieve compliance.
    The American Aviation Institute (AAI) supported the Department's 
proposal to require conformance with the WCAG 2.0 Level AA, but again, 
only on those pages involved with providing core information and 
functions. The Information Technology Industry Council (ITI), 
representing 50 leading companies in the information and communications 
technology industry, urged the Department not to require any technical 
standard other than WCAG 2.0, stating: ``WCAG 2.0 is the most current 
and complete standard for web accessibility and is expected to be the 
basis for the updated Section 508 also. For harmonization purposes, ITI 
strongly recommends only accepting WCAG 2.0.''
    With rare exception, individual commenters who self-identified as 
having a disability supported WCAG 2.0 as the applicable standard for 
Web site accessibility. Virtually all advocacy organizations 
representing individuals with disabilities across the spectrum also 
supported WCAG 2.0, with more than half specifically endorsing the 
Level AA success criteria as the appropriate standard. All of the 
advocacy organization commenters representing individuals who are 
blind, deaf, or hard of hearing specifically endorsed the Level AA 
success criteria. ACB and AFB also urged the Department to adopt the 
Authoring Tools Accessibility Guidelines (ATAG) 1.0, a World Wide Web 
Consortium \7\ (W3C) guideline that defines how authoring tools should 
assist Web developers in producing Web content that is accessible and 
conforms to WCAG. (ATAG will be discussed in a later section on 
Implementation Approach and Schedule.) There were a few comments 
suggesting that all Level A success criteria and only selected criteria 
from Level AA be required.
---------------------------------------------------------------------------

    \7\ The World Wide Web Consortium is an international community 
that develops open standards to ensure the long-term growth of the 
Web. One of its primary goals is to make the benefits that the Web 
enables, including human communication, commerce, and opportunities 
to share knowledge, available to all people.
---------------------------------------------------------------------------

    The leading commenters representing ticket agents (ASTA, NTA, 
USTOA, and ITSA) felt strongly that the Department should refrain from 
requiring carriers to ensure that their agent Web sites conform to the 
WCAG 2.0 standard or any other specific accessibility standard at this 
time. ITSA, in particular, advocated that the Department allow 
carriers, as well as agents, to adopt any acceptable standard at any 
compliance level. Citing the DOJ's concurrent rulemaking concerning Web 
site accessibility standards applicable to entities covered under ADA 
title III regulations,\8\ ticket agent commenters

[[Page 67888]]

also urged that both agencies coordinate the technical accessibility 
criteria each intends to apply so that Web site accessibility 
requirements are consistent. A number of these commenters felt that the 
Department should postpone imposing a Web site accessibility standard 
for ticket agent Web sites until the DOJ rulemaking is completed.
---------------------------------------------------------------------------

    \8\ 75 FR 43460-43467 (July 26, 2010).
---------------------------------------------------------------------------

    DOT Decision: After considering the arguments raised by the carrier 
and ticket agent associations to postpone requiring any standard until 
after the DOJ rulemaking on Web site accessibility is complete, we have 
concluded that there is no compelling reason to defer promulgating a 
WCAG 2.0 based standard applicable to the Web sites of carriers. Since 
WCAG 2.0 is by far the front-runner among the existing accessibility 
standards world-wide, and both the Access Board and the Department of 
Justice have sought public comment on incorporating WCAG 2.0 technical 
criteria into the existing section 508 standard or directly adopting 
the standard,\9\ the Department believes there is ample justification 
for adopting WCAG 2.0 at Level AA as the accessibility standard for 
carrier Web sites that market air transportation to the public in the 
United States.
---------------------------------------------------------------------------

    \9\ See 75 FR 43452-43460 (title II) and 75 FR 43460-43467 
(title III) (July 26, 2010); see also 75 FR 13457 (March 22, 2010) 
and 76 FR 76640 (December 8, 2011).
---------------------------------------------------------------------------

    We note that well before DOT published its SNPRM in September 2011, 
both DOJ and the Access Board had embarked upon rulemakings that 
address Web site accessibility standards. The DOJ rulemakings sought 
comment on the standard for Web site accessibility it should adopt for 
entities covered by ADA titles II and III.\10\ Specifically, DOJ asked 
whether it should adopt the WCAG 2.0 Level AA success criteria, whether 
it should consider adopting another WCAG 2.0 success criteria level, or 
whether it should instead adopt the section 508 standards rather than 
the WCAG 2.0 guidelines as the applicable standards for Web site 
accessibility. In addition, the Telecommunications and Electronic and 
Information Technology Advisory Committee (TEITAC) recommended to the 
Access Board that the Section 508 standard be harmonized with WCAG 
2.0.\11\ The Access Board, in turn, sought public comment in two 
successive advance notices of proposed rulemaking on adopting WCAG 2.0 
as the successor to the current section 508 standards for Web content, 
forms and applications.\12\
---------------------------------------------------------------------------

    \10\ See 75 FR 43460-43467 (July 26, 2010).
    \11\ TEITAC was established in 2006 to review the existing 
Section 508 standards and Telecommunications Act accessibility 
guidelines and advise the Access Board concerning needed changes, 
including the need for standardization across markets globally. Its 
members represented the electronic information technology industry, 
disability groups, standard-setting bodies in the United States and 
abroad, and government agencies. TEITAC recommended in its 2008 
final report that the Access Board seek to harmonize the Section 508 
standards with the WCAG 2.0 standards to improve accessibility and 
facilitate compliance.
    \12\ See 75 FR 13457 (March 22, 2010) and 76 FR 76640 (December 
8, 2011).
---------------------------------------------------------------------------

    This consensus is corroborated by many indicators that WCAG 2.0 is 
the most robust and well supported accessibility standard currently in 
use. The developers of WCAG 2.0 have made an array of technical 
resources available on the W3C Web site at no cost to assist companies 
in implementing the standard.
    In addition, foreign governments increasingly are adopting WCAG 2.0 
Level AA either as guidelines for evaluating nondiscrimination in 
providing Web site access \13\ or as the official legal standard for 
accessibility on government Web sites.\14\ Australian government 
agencies are currently required to be compliant at WCAG 2.0 Level A and 
upgrade to Level AA by December 31, 2014.\15\ In August 2011, the 
Canadian government adopted a requirement for government agencies to 
bring most content on their public Web sites into compliance with the 
WCAG 2.0 Level AA standard by July 31, 2013.\16\ The Canadian 
government also released a resource tool in March 2013, to assist air 
terminal operators in implementing the government's voluntary Code of 
Practice on accessibility of non-national airports system air 
terminals.\17\ The guidance recommends that terminal operators conform 
their Web sites to the WCAG 2.0 standard. All official Web sites of the 
European Union institutions are currently expected to follow the WCAG 
1.0 guidelines for accessible Web content, and the EU Commission has 
proposed to require 12 categories of EU public sector Web sites to meet 
WCAG 2.0 at Level AA by December 31, 2014.\18\ Hong Kong government 
sites are currently required to meet the WCAG 2.0 at Level AA.\19\ New 
Zealand government sites must meet the same standards by July 1, 2017, 
with some limited exceptions.\20\ France and Germany have national 
standards that are based on, but not identical to, WCAG 2.0 (Level AA), 
while United Kingdom government Web sites are required to comply with 
either WCAG 1.0 or 2.0 at the AA level.\21\ The European 
Telecommunications Standards Institute (ETSI) is seeking public comment 
on a draft proposal to adopt harmonized accessibility standards for 
European public information and communication technology (ICT) 
procurements that specifically proposes WCAG 2.0 Level AA as the Web 
content accessibility standard.\22\
---------------------------------------------------------------------------

    \13\ See 76 FR 76640, 76644, nt. 4 (December 8, 2011).
    \14\ See 76 FR 76640, 76644, nt. 5 and 6 (December 8, 2011).
    \15\ See Australian Government Web Guide, http://webguide.gov.au/accessibility-usability/accessibility/ (last visited 
July 2, 2013).
    \16\ See Government of Canada Standard on Web Accessibility, 
http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?section=text&id=23601 
(last visited July 2, 2013).
    \17\ See Accessibility of Non-National Airports System Air 
Terminals: Code of Practice, http://www.otc-cta.gc.ca/eng/publication/accessibility-non-national-airports-system-air-terminals-code-practice (last visited August 26, 2013).
    \18\ See Directive of the European Parliament and of the Council 
on the Accessibility of Public Sector Bodies' Web sites, http://ec.europa.eu/digital-agenda/en/news/proposal-directive-european-parliament-and-council-accessibility-public-sector-bodies-Web sites 
(last visited July 2, 2013).
    \19\ See Guidelines on Dissemination of Information Through 
Government Web sites, http://www.ogcio.gov.hk/en/community/web_accessibility/doc/disseminationguidelines.pdf (last visited July 2, 
2013).
    \20\ See New Zealand Government (Web Accessibility Standard 
1.0), https://webtoolkit.govt.nz/standards/web-accessibility-standard/ (last visited July 2, 2013).
    \21\ See Powermapper Software Blog, Government Accessibility 
Standards and WCAG 2.0, http://blog.powermapper.com/blog/post/Government-Accessibility-Standards.aspx (last visited July 9, 2013
    \22\ See Draft EN 301 549 V1.0.0, Human Factors (HF); 
Accessibility Requirements for Public Procurement of ICT products 
and services in Europe, (2013-02). The public comment period on the 
draft closes July 28, 2013.
---------------------------------------------------------------------------

    The Department considered requiring conformance with WCAG 2.0 Level 
A success criteria only, which are feasible standards for Web 
developers and would ensure the removal of major accessibility 
barriers. Level AA, however, contains additional guidelines and 
recommendations that provide a more comprehensive level of Web site 
accessibility for people with various types of disabilities. Examples 
of Level AA success criteria that provide additional access beyond what 
Level A provides include minimum contrast ratios for regular and large 
text, capability to resize text, consistent order of the navigation 
links that repeat on Web pages when navigating through a site, and the 
availability of multiple ways for the users to find Web pages on a 
site. As the foregoing discussion on government Web site accessibility 
standards indicates, the Level AA success criteria are widely regarded 
as feasible for Web content developers to implement. Moreover, the 
Level AA success criteria appear to be most often

[[Page 67889]]

specified when conformance with WCAG is required and are most often 
adopted when Web sites voluntarily use WCAG.\23\ Level AAA success 
criteria, while providing a high level of accessibility, are not 
recommended for entire Web sites because they are much more challenging 
to implement and all criteria cannot be satisfied for some Web 
content.\24\ For these reasons, the Department is persuaded that Level 
AA is the compliance level that can provide the highest practicable 
level of Web site accessibility.
---------------------------------------------------------------------------

    \23\ See WCAG 2.0 Overview, http://www.evengrounds.com/wcag-tutorial/overview (last visited July 2, 2013).
    \24\ See Web Content Accessibility Guidelines (WCAG) 2.0, http://www.w3.org/TR/WCAG/ (last visited August 22, 2012.)
---------------------------------------------------------------------------

    Regarding the carrier associations' assertion that requiring 
airlines to comply with the WCAG 2.0 standard sets ``a very high bar 
that exceeds federal government Web site accessibility requirements,'' 
we believe they overstate the actual differences between the section 
508 and WCAG 2.0 standards. From a practical standpoint, WCAG 2.0 
success criteria largely standardize best practices that were developed 
in response to the requirements of the current section 508 standards. 
In addition, WCAG 2.0 success criteria that do not correspond to the 
current section 508 standards were developed to address perceived gaps 
and deficiencies in the current section 508 standards. Overall, the 
WCAG 2.0 success criteria spell out more specific requirements for 
aspects of the Web site coding function than section 508 provides, such 
as consistent identification of functional elements that repeat across 
Web pages, specific standards for color contrast, multimedia player 
controls, and compatibility with assistive technology.
2. Usability and Performance Standards
    The SNPRM: In the September 2011 SNPRM preamble, we asked for 
comment on whether we should adopt a performance standard in lieu of or 
in addition to the proposed technical standards in the final rule, as 
well as on the types and versions of assistive technologies to which 
performance standards should apply. We also sought comment on the 
feasibility and value of requiring airlines to seek feedback from the 
disability community on the accessibility of their Web sites through 
periodic monitoring and feedback on their usability. In addition, we 
wanted to know whether the Department should require carriers to 
develop guidance manuals for their Web site developers on implementing 
the WCAG 2.0 standard so that their Web sites are functionally usable 
by individuals with disabilities.
    Comments: Disability advocacy organizations strongly urged the 
Department to adopt a set of performance standards in addition to the 
WCAG 2.0 Level AA technical standard. ACB and AFB advocated the 
adoption of a general performance standard consistent with the broader 
accessibility standard of effective communication articulated in the 
DOJ ADA title II and III regulations.\25\ They argued that mere 
compliance with the technical standards would not be enough to ensure 
that Web sites would be fully accessible to people with disabilities. 
NFB, ABC, NCIL, CCD, and BBI also supported pairing the WCAG technical 
standard with a performance standard to ensure accessibility and 
usability by a range of individuals with sensory, physical, and 
cognitive disabilities. Acknowledging the difficulty of measuring 
performance standards, NCIL suggested several possible measures, 
including the rate of success of users with disabilities in 
accomplishing various tasks on the Web site, the average time it takes 
for a group of users with disabilities to accomplish a task as compared 
to a group of non-disabled users, and required compatibility of a Web 
site with the most widely used accessibility software and technologies 
to ensure usability by as many people as possible.
---------------------------------------------------------------------------

    \25\ The Department of Justice requires covered entities to 
ensure effective communication through auxiliary aids and services 
that are ``provided in accessible formats, in a timely manner, and 
in such a way as to protect the privacy and independence of the 
individual with a disability.'' See 28 CFR 35.160 (b) and 28 CFR 
36.303(c)(1)(ii).
---------------------------------------------------------------------------

    While most industry commenters did not specifically address 
performance standards, the carrier associations opposed the adoption of 
any kind of prescriptive standard, including specific performance 
standards. ITSA noted that making Web pages accessible involves 
performance trade-offs and that imposing rigid performance standards 
would result in costs and technical challenges that may not be 
feasible. The Cornell e-Rulemaking Initiative (CeRI), an academic 
initiative working to facilitate public comment on DOT rulemakings, 
sought to conform its Web site to WCAG 2.0 at Level AA in preparation 
for soliciting public comments on DOT's rulemaking on Web site and 
kiosk accessibility. Their experience led them to conclude that 
applying performance standards broadly may have limited usefulness. 
They note, for example, that performance standards are typically 
developed based on a specific version of a specific assistive 
technology used to access Web sites and therefore are not useful for 
testing earlier versions of the technology (e.g., a Web site that meets 
a performance standard accessed by a user with the latest version of 
JAWS screen reader software may not meet the performance standard if 
accessed using an earlier version of the software). They also noted 
that with regard to specific assistive technologies, compatibility with 
evolving technical standards and user proficiency has an impact on 
whether performance standards are helpful in testing the usability of a 
Web site. ITI expressed concern about the many questions related to 
specific combinations of browsers, operating systems, assistive 
technologies, and disability types that would need to be considered and 
the cost impact of developing and testing specific performance 
standards. As an alternative, ITI suggested introducing a mechanism for 
end users of a Web site that already meets the WCAG 2.0 technical 
standard to be able to report on specific accessibility issues 
encountered on that Web site.
    BBI supported a requirement for carriers to develop internal 
guidance manuals, pointing out that such documents are useful for 
training new or temporary employees on implementing the standard and 
preventing new accessibility barriers on the Web site. CCD stated that 
DOT should act now to develop guidance for carriers on how to implement 
technical accessibility standards so that their Web sites will be 
functionally usable. DRNJ, on the other hand, noted that since a 
substantial amount of free training and guidance materials are 
presently available online, a requirement for each carrier to develop 
its own guidance manual would appear to be unnecessary. They 
recommended that if there is a need for airline-specific material, the 
Department should contract with a university or other provider to 
create a national center for training and technical assistance. The 
carrier associations felt that requiring carriers to produce a guidance 
manual would further burden staff members already busy implementing 
other passenger protection requirements.
    DOT Decision: The Department is persuaded that adopting specific 
performance standards at this time is premature. We strongly believe 
that specific measures to ensure the usability of Web sites that meet 
the WCAG 2.0 standard are necessary, however. We therefore are 
requiring carriers to consult with members of the disability community 
to test and provide feedback

[[Page 67890]]

on the usability of their Web sites before the applicable compliance 
deadline. A carrier is not required to pay a group or individual 
representing a disability type to test its Web site. Although we 
believe that it is very unlikely that a carrier would be completely 
unable to find anyone with whom to consult, if after making a 
reasonable effort a carrier is unable to find a person or group 
representing a disability type that will test the carrier's Web site at 
no expense to the carrier and within a reasonable time period, the 
carrier has fulfilled its obligation with respect to the requirement.
    It is worth noting that the Department has required consultation 
with disability organizations in implementing certain provisions of its 
disability regulation (14 CFR part 382) since March 1990. In the March 
1990 final rule, the Department mandated that airlines consult with 
organizations representing persons with disabilities in developing 
their employee training programs. In the preamble to this 1990 final 
rule, we explained that ``[t]he Department continues to believe that 
disability groups are a major resource for carriers, to help them 
devise practical and comprehensive procedures for accommodating 
passengers with a wide variety of disabilities. Consultation basically 
means making reasonable efforts to obtain the views of disability 
organizations: there is no list of organizations or type of contacts 
that the rule specifically mandates.'' See 55 FR 8008, 8043 (March 6, 
1990).
    More recently, we refined this requirement in the May 2008 final 
rule in response to concerns raised by foreign carriers. In their 
comments on the 2004 Foreign Carriers NPRM, some foreign carriers 
objected to consulting with disability groups, saying that the 
requirement should be waived if they could not find a local disability 
group to consult. Disability groups responded to these comments by 
suggesting that such a waiver was unnecessary because the U.S.-based 
staff of the airline could consult with U.S. groups if necessary. The 
following excerpt from the preamble to the 2008 final rule discusses 
the Department's decision regarding changes to the consultation 
requirement: ``While U.S. disability groups can undoubtedly be a useful 
resource for both U.S. and foreign carriers, we do not believe it would 
be realistic to require foreign carriers to seek out U.S. disability 
groups for consultation (in many cases, U.S.-based personnel of these 
carriers would be operations staff, not management and training 
officials). Consequently, we have modified the language of this 
provision to refer to seeking disability groups in the home country of 
the airline. If home country disability groups are not available, a 
carrier could consult individuals with disabilities or international 
organizations representing individuals with disabilities. We do not 
believe that a waiver provision is needed, since it is unlikely that a 
carrier would be completely unable to find anyone--home country or 
international disability groups, individuals with disabilities--with 
whom to consult. As a matter of enforcement policy, however, the 
Department would take into consideration a situation in which a carrier 
with an otherwise satisfactory training program documented it had made 
good faith efforts to consult but was unable to find anyone with whom 
to consult.'' 73 FR 27614, 27643 (May 13, 2008). The Department also 
already requires U.S. and foreign carriers to consult with local 
service animal training organization(s) in providing animal relief 
areas for service animals at U.S. airports.
    Similarly, in this final rule, the Department is requiring carriers 
to consult with individuals with visual, auditory, tactile, and 
cognitive disabilities or organizations representing these disability 
types (e.g., American Federation of the Blind, National Federation of 
the Blind, National Association of the Deaf, Arthritis Foundation, 
United Cerebral Palsy, The Arc, etc.) in testing the usability of their 
Level AA-compliant Web sites. Carriers may consult with any individuals 
and/or local, national, or international disability organizations whose 
input collectively can help them determine how effectively their 
accessible Web site addresses the functional limitations of people with 
visual, auditory, tactile, and cognitive disabilities. To the extent 
that individuals on a carrier's disability advisory board represent 
these disability types, the carrier may consult with those individuals 
to satisfy the requirement. For disabilities of the types listed above 
that are not represented on their advisory boards, carriers will be 
obliged to consult with outside individuals or organizations 
representing those disability types. We believe that it is very 
unlikely that a carrier would be completely unable to find anyone with 
whom to consult--either unaffiliated individuals with disabilities or 
members of a home country or international disability group--that 
represent these disability types and who use or want to use a carrier's 
Web site. As a matter of enforcement policy, however, the Department 
would take into consideration a situation in which a carrier documented 
that it had made good faith efforts but was unable to find a group or 
individual willing or able to consult within a reasonable time period. 
While the consultation requirement does not mandate that carriers 
modify their Web sites using all the feedback obtained from the 
consultations, we encourage carriers to make any changes necessary to 
ensure access by people with these functional limitations to the extent 
that such changes are not unduly burdensome to implement.
    We note that although the WCAG 2.0 standard is geared to making Web 
sites accessible to a wide range of individuals with disabilities, the 
developers of WCAG 2.0 emphasize that the guidelines are not able to 
address the needs of people with all types, degrees, and combinations 
of disability. Some disability advocates have criticized WCAG 2.0 as 
falling short in providing equal accessibility for individuals with 
cognitive disabilities.\26\ These advocates observe that certain WCAG 
2.0 Level A and Level AA success criteria target certain accessibility 
issues such individuals face (e.g., Success Criterion 2.2.1--Adjustable 
Timing, 2.4.7--Focus Visible such that any keyboard operable user 
interface has a mode of operation where the keyboard focus indicator is 
visible, 3.3.1--Error Identification, 3.3.3--Error Suggestion, and 
3.3.4--Error Prevention). The advocates note, however, that the most 
significant issues such as difficulty comprehending text are addressed 
by optional Level AAA success criteria. Those criteria include Success 
Criterion 3.1.5--Reading Level that requires supplementary content or a 
version of the content that does not require reading ability greater 
than lower secondary level, and Success Criterion 1.4.8--Visual 
Presentation requiring unjustified text, text width no more than 80 
characters, line spacing of at least one and a half lines within 
paragraphs, capabilities for users to select text and background colors 
and resize text up to 200%, and other features to assist with 
difficulties in tracking and comprehending text. With nearly 5% of the 
U.S. population reporting some kind of cognitive disability in 
2011,\27\ the Department

[[Page 67891]]

acknowledges that even the best accessibility standards currently 
available fall short of providing the accessibility needed by many 
individuals with cognitive impairments. We are nonetheless encouraged 
that the WCAG developers recognize these needs and support additional 
measures to advance cognitive, language, and learning access that can 
be taken within WCAG 2.0 itself and other ways that go beyond what can 
go into the standard.\28\ As efforts to improve accessibility for 
different kinds of disabilities continue, usability testing with 
individuals representing a variety of disabilities will help in the 
interim to improve access until measurable success criteria to address 
specific unmet needs can be developed. We believe that the usability 
testing strikes a balance between taking reasonable steps to ensure 
usability, while limiting the potentially significant costs of meeting 
performance standards having minimal usefulness to individuals with 
disabilities. The Department encourages disability advocacy 
organizations to work with carriers to provide Web site usability 
feedback, both during the development and testing process and after the 
accessible Web site has been published.
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    \26\ Richardson, Allie (November 29, 2011). Those WCAG Forgot: 
Designing for the Cognitively Disabled. Retrieved July 16, 2013 from 
http://orange.eserver.org/issues/7-2/richardson.html.
    \27\ Erickson, W., Lee, C., von Schrader, S. (2013). Disability 
Statistics from the 2011 American Community Survey (ACS). Ithaca, 
NY: Cornell University Employment and Disability Institute (EDI). 
Retrieved July 16, 2013 from www.disabilitystatistics.org.
    \28\ Clark, Joe (November 26, 2006). Letter of invitation re 
cognitive language and learning aspects of WCAG 2.0. Retrieved July 
16, 2013 from http://joeclark.org/access/webaccess/WCAG/cognitive/message061122.html.
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    With regard to adopting a requirement for carriers to develop 
guidance manuals, the Department concurs that the benefits do not 
outweigh the costs. There is an abundance of readily available guidance 
on the W3C Web site with detailed information on implementing and 
testing each of the technical criteria for each WCAG 2.0 conformance 
level. In addition, consultation with members of the disability 
community on the usability of conformant Web sites will enhance the 
available technical guidance and ensure that carriers have practical 
feedback to guide their efforts. As Web content is updated and Web 
development standards evolve, we encourage carriers to continue 
soliciting feedback from users with disabilities as the best way to 
ensure the ongoing accessibility and usability of their Web sites.
3. Scope--Web Sites and Other Electronic Information and Communication 
Technologies
    The SNPRM: Our proposal to require carrier Web site accessibility 
was limited to all public-facing content on a carrier's primary Web 
site marketing air transportation to the general public in the United 
States. We did not propose to apply the accessibility standard to any 
other Web site a carrier may own, lease, or control (e.g., a mobile Web 
site) or to primary carrier Web sites marketing flights exclusively to 
the public outside of the United States. The Department asked for 
comment on whether we should limit the requirement to certain portions 
of the primary Web site (e.g., booking function, checking flight 
status), whether the requirements should extend to mobile carrier Web 
sites and to other electronic information technologies (e.g., email or 
text messaging) used by carriers, and whether any third-party software 
downloadable from a carrier's Web site should be required to be 
accessible.
Covered Content on Primary Web Sites
    Comments: Regarding the scope of the Web site accessibility 
requirements, in general the carrier associations and several 
individual carriers advocated limiting the scope to pages on the 
primary Web site or on a mobile Web site involved in booking air 
transportation. The carrier associations, which strongly advocated for 
flexibility and alternative approaches to making Web sites accessible, 
urged the Department to consider four options for providing Web site 
accessibility from which carriers could choose. The first option was a 
text alternative Web site that would provide only the core air travel 
information and services (not all of the public-facing content) offered 
on the primary Web site. The second option would also provide only core 
air travel information and services on a mobile Web site that meets the 
MWBP 1.0 standard and is accessible from a link on the primary Web site 
or that automatically loads on a Smartphone or other mobile device. The 
third option would allow a carrier to make the Web pages that provide 
core air travel information and services on a primary Web site 
accessible using any Web accessibility standard. The fourth option 
would only require carriers to make newly created Web pages on a 
primary Web site accessible using any Web accessibility standard 
starting two years from the final rule effective date. None of the 
options suggested by the carrier associations would require that all 
public-facing content on a primary Web site be accessible, although the 
fourth option might eventually lead to that result. Commenters who 
supported flexibility and carrier choice also expressed the view that 
fewer compliance options would inhibit carrier innovation and use of 
new technologies, limit Web site utility for all passengers, and result 
in an undue burden for the industry. Other industry commenters such as 
AAI supported the WCAG 2.0 accessibility standard, but also favored an 
approach that would limit the public-facing content on a primary Web 
site that must meet that standard. Some commenters who supported 
limiting the scope of covered primary Web site content argued that the 
cost of making large numbers of infrequently visited pages accessible 
will outweigh any benefit to the few people with disabilities who might 
visit them. Others argued that providing the core air travel functions 
in an accessible format on a mobile or text alternative Web site was a 
reasonable solution because it would be less costly than making their 
primary Web sites accessible and still provide passengers with 
disabilities essential air transportation service information. We note 
that carriers generally were in agreement with the core air travel 
information and services listed in the second tier of the phased 
compliance schedule proposed in the September 2011 SNPRM and to 
applying some accessibility standard to all associated Web pages. One 
carrier that did not support applying accessibility standards to 
carrier Web sites suggested that carriers be required to provide a 
phone number to an accessible phone line where equivalent information 
and services could be obtained. In its view, this was the best 
alternative because it would provide personalized service to passengers 
with disabilities and avoid the imposition of high Web site conversion 
costs on carriers.
    Disability advocacy organizations and individuals who self-
identified as having a disability unanimously supported the 
Department's proposal to require that all public-facing content on a 
carrier's primary Web site be accessible. A few commenters who self-
identified as having disabilities did not oppose the use of text-only 
Web sites for achieving accessibility, but none supported access to 
anything less than all public-facing content on a carrier's Web site. 
ITI, the association of leading information and communication 
technology companies, stated unequivocally that the complete Web site 
(all public-facing content on a carrier's primary Web site versus only 
portions necessary to providing core air travel services and 
information) should comply with the WCAG 2.0 standard at the conclusion 
of the implementation period. The majority of individual commenters 
identifying as having a disability and all commenters representing 
disability advocacy organizations were also adamantly

[[Page 67892]]

against the use of text-only Web sites as an alternative to making the 
primary Web site accessible. Their reasons for opposing the text-only 
sites will be explained in the discussion on conforming alternate 
versions later in this preamble.
    DOT Decision: The Department considered the arguments raised by 
carriers and carrier associations in support of compliance options that 
limit the scope of primary Web site content that must be accessible. 
While the proposed options would undoubtedly result in cost savings to 
carriers, they are not the only way to reduce the cost of making Web 
sites accessible. Moreover, and most importantly, such options are not 
acceptable because the purpose of requiring Web site accessibility is 
to attempt to ensure that passengers with disabilities have equal 
access to the same information and services available to passengers 
without disabilities. Therefore, the Department has decided to retain 
in the final rule the requirement we proposed that public-facing 
content on a carrier's primary Web site marketing air transportation to 
the general public in the United States must be accessible. The 
statutory definition of air transportation includes interstate 
transportation or foreign air transportation between a place in the 
United States and a place outside of the United States. See 49 U.S.C. 
40102 (a) (5). For a carrier whose primary Web site markets (i.e., 
advertises or sells) air transportation to the general public in the 
United States this generally means that all public-facing Web content 
is covered. For a carrier whose primary Web site markets air 
transportation as defined above and other flights to the general public 
in and outside of the United States, only public-facing content on the 
Web site marketing air transportation to the general public in the 
United States must be accessible. We recognize that some technical 
difficulty may be involved for foreign carriers applying the 
accessibility standard to Web sites marketing air transportation to the 
public in the United States that draw on data sources not required to 
be accessible under our rules. We are not convinced; however, that the 
effort to ensure the data from such sources can be used on the covered 
Web site will involve such significant expense as to cause an undue 
burden. At the same time, there is no requirement for carriers to make 
Web pages that market air transportation to the general public outside 
of the United States on a covered Web site accessible. Therefore, for 
covered Web sites that market both air transportation as defined above 
and other flights not within the scope of this rule, we expect carriers 
to do what is necessary to render Web pages marketing air 
transportation to the general public in the United States accessible. 
Carriers will have to decide the best approach to making the covered 
Web content accessible based on their business priorities and available 
resources. As a practical matter, we recognize that the most 
technically efficient and cost effective way to ensure that covered 
pages meet the accessibility standard may be for carriers to make all 
Web pages accessible on a Web site that markets air transportation to 
the general public both inside and outside of the United States and/or 
markets flights not covered by the rule. Therefore, we encourage 
carriers to bring Web pages covered by the accessibility requirements 
into compliance with the WCAG 2.0 Level AA standard using the technical 
approach that is most feasible for them given the content and 
infrastructure architecture of their Web sites.
Mobile Web Sites, Mobile Apps, and Other Electronic Communication 
Technology
    The SNPRM: The Department sought comment on whether carriers should 
be required to ensure that their mobile Web sites meet the WCAG 2.0 
standard at Level AA or follow the W3C's MWBP 1.0, or both. We asked 
whether carriers should be required to ensure that any third party 
software downloadable from a link on the carrier's Web site (e.g., deal 
finding software) is accessible and to ensure other carrier-initiated 
electronic communications such as reservation confirmations, flight 
status notifications, and special offer emails are accessible. We also 
requested input on the costs and technical feasibility of ensuring that 
such content is accessible.
    Comments: The Department received a number of responsive comments 
to our questions about the accessibility of mobile Web sites and other 
electronic information and communication technologies. Several advocacy 
organizations for individuals with vision impairment were pleased that 
the Department had acknowledged that primary Web sites represent only a 
portion of the air travel-related electronic information and 
communication that pose barriers to people with disabilities. These 
organizations strongly urged the Department to go further and require 
carriers to ensure that their mobile Web sites and other technologies 
used for electronic customer interface (e.g., email, text messages, and 
mobile applications) are accessible. Some commenters representing 
advocacy organizations urged the Department to require carriers to make 
their mobile Web sites conform to the W3C's MWBP, while others urged us 
to require mobile Web sites to conform to the same WCAG 2.0 Level AA 
standard as primary Web sites. Regarding mobile applications (apps), 
while some of these commenters acknowledged that most mobile phones are 
not yet fully accessible to blind and other visually impaired users, 
they felt strongly that mobile apps may overtake Web sites and kiosks 
as the method of choice for looking up flight information, selecting 
seats, checking in, etc. within the next few years. They urged the 
Department to require carriers to ensure that their apps are compatible 
with the built-in or external assistive technologies that individuals 
with disabilities use. Specifically, they asked us to require carriers 
to meet the accessibility standards developed by operating system 
developers (e.g., Apple's Human Interface Guidelines for mobile apps 
designed for Apple's iOS mobile operating system) or another recognized 
standard known to be compatible with available external assistive 
technology. As discussed earlier, a few of these commenters also urged 
the Department to adopt in 14 CFR part 382 DOJ's ``effective 
communication'' standard under ADA titles II and III and require 
accessibility of all electronic information and communication 
technologies used by carriers to interface with their customers. NCIL 
advocated that the Department take a stronger stance in its rulemakings 
to reflect the broader rights of people with disabilities to technology 
access as described in Section 508. By way of comparison, they observed 
the efforts of government agencies to effectively communicate with 
people from diverse cultural backgrounds by making their regulations 
and guidance documents available in multiple languages on agency Web 
sites, through printed media, and via interpreters on the telephone. 
NCIL believes that the same concentrated and sustained effort to 
include people with disabilities is overdue. They further regard 
failure to move in the direction of greater access for people with 
disabilities across the spectrum of electronic information and 
communication technologies as ``unacceptable, unfair, and 
discriminatory'' stating: ``. . . mandates for accessibility of Web 
sites . . . [are] long overdue; DOT must not make the same mistake by 
neglecting to address

[[Page 67893]]

mobile apps until several years from now.''
    Carrier associations and individual carriers generally supported 
applying an accessibility standard to mobile Web sites only when the 
mobile Web site is the platform for making the content of a carrier's 
primary Web site accessible. They acknowledged that mobile Web sites 
typically do not contain all the content of primary Web sites. ITSA 
encouraged us to adopt a flexible standard for mobile Web sites (e.g., 
the W3C's MWBP). In general, industry commenters either expressed 
opposition or did not comment on our questions regarding accessibility 
of other electronic information and communication technologies used by 
carriers to interface with their customers.
    DOT Decision: The Department unequivocally supports full 
accessibility of all electronic information and communication 
technologies used by the air transportation industry to interface with 
its customers. We believe that certain factors, however, preclude 
introducing new accessibility requirements for electronic information 
and communication technologies other than Web sites at this time. Four 
factors weighed most heavily in our decision: (1) No accessibility 
standard specifically for mobile Web sites exists at this time; (2) 
accessibility standards such as WCAG 2.0 cannot be readily applied to 
mobile applications designed for mobile platforms that are not 
accessible; (3) most mobile devices currently on the market are not 
accessible to individuals who are blind or visually impaired; and (4) 
the need to focus carrier attention and resources on bringing existing 
Web sites into compliance with WCAG 2.0 Level AA. We believe the best 
approach to expanding accessibility of electronic information and 
communication technology in the air travel industry is to allow 
carriers to focus their resources on bringing the covered public-facing 
content of their primary Web sites into full compliance with the WCAG 
2.0 Level AA standard. As they do so, they will acquire expertise and 
develop technical efficiencies in implementing the standard. We have 
decided, therefore, not to require that mobile Web sites, email, text 
messaging, mobile apps, and other electronic communication technologies 
be accessible at this time. Nonetheless, we encourage carriers to 
develop their mobile Web sites in conformance with the W3C's current 
MWBP until such time as a standard for mobile Web sites is developed 
and adopted. We also encourage carriers to immediately begin 
incorporating accessibility features into email, text messaging, and 
other information and communication technologies they use to the extent 
feasible. Doing so will immediately and incrementally increase access 
to those technologies for individuals with disabilities. In addition, 
it may make compliance with any accessibility standard the Department 
may require for such technologies in the future easier and less costly.
Embedded Inaccessible Third-Party Plug-In Applications and Links to 
Inaccessible External Web Sites and Applications
    Comments: Carrier Web sites may contain content that can only be 
read using a software application owned and developed by a third party. 
Such applications may be hosted (embedded) on the carrier's Web site, 
or the Web site may contain a link to an external Web site where the 
application resides. In the September 2011 SNPRM, the Department sought 
comment on whether third-party software downloadable from a carrier's 
Web site (embedded) should be required to be accessible. The carrier 
associations opposed any such requirement, reiterating their position 
that the Department should regulate the entities providing the software 
directly when it is within the scope of its authority to do so. 
Disability advocacy organizations commenting on the issue urged the 
Department to require carriers to ensure that downloadable third-party 
software is accessible. These commenters pointed out that any contracts 
carriers have with the entities producing such software should contain 
a provision requiring that it meet the WCAG 2.0 standard. They 
specifically noted that section 382.15(b) requires carriers contracting 
for services that must be provided under Part 382 to ensure that the 
contracts stipulate that the vendor provide the service in accordance 
with Part 382. They reasoned that if Part 382 requires a carrier's 
public-facing Web content to be accessible, and the carrier contracts 
with a third party to provide downloadable software on its Web site, 
the contract must stipulate that the software meets the WCAG 2.0 
standard. In addition, they urged the Department to require carriers to 
work proactively with the producers of inaccessible software that 
resides on an external Web site but can be reached from a link on the 
carriers' Web sites to repair any accessibility issues.
    DOT Decision: The Department has considered the impact on Web site 
accessibility of various scenarios involving inaccessible third-party 
software embedded on a carrier's Web site and links to inaccessible Web 
sites or software that reside on an external Web site. In the case of 
an inaccessible third-party software, such as a deal finder software, 
embedded directly on a carrier's Web site, the Department believes that 
allowing exceptions for such software on an otherwise accessible Web 
site could significantly undermine the goal of equivalent access to Web 
site information and services for people with disabilities. Many 
companies today sell off-the-shelf Web software (e.g., JavaScript 
menus) used by Web site authors. A general exception allowing carriers 
to embed inaccessible plug-in software developed by third parties on an 
otherwise accessible Web site over time could result in significant 
portions of Web sites being excepted from compliance with the WCAG 2.0 
standard.
    The Department believes it is incumbent on carriers that intend to 
host third-party software of any kind on their Web sites to work with 
the developers to ensure that such software meets the WCAG 2.0 
standard. This rule does not, however, prohibit a carrier from having 
links on its primary Web site to external Web sites and third-party 
software that are partially or entirely inaccessible. Such links are 
acceptable so long as there is a mechanism on the carrier's Web site 
informing the user that the third party software or external Web site 
may not follow the same accessibility policies as the primary Web site. 
For example, if a carrier's Web site has links to inaccessible external 
Web sites containing information and consumer comments about the 
carrier's services (e.g., social media Web sites such as Facebook, 
Twitter, and YouTube), the carrier must provide a disclaimer when the 
link is clicked informing the user that the external Web site is not 
within the carrier's control and may not follow the same accessibility 
policies (See links to Facebook, Twitter, and YouTube on the Social 
Security Administration home page http://ssa.gov). While this approach 
is acceptable, we urge carriers generally to avoid linking to external 
resources that are known to be inaccessible and to work with the 
authors of the external sites whenever possible to develop accessible 
modules. For example, Facebook, Twitter, and YouTube have collaborated 
successfully with the Web site developers of certain government 
agencies to provide an accessible interface for agency-related content 
(e.g., see links to Facebook, Twitter, and YouTube on the homepages of 
the Department of Education at http://ed.gov and the

[[Page 67894]]

Department of Homeland Security at http://dhs.gov).
4. Applicability
    The SNPRM: We proposed to apply the WCAG 2.0 Web site accessibility 
standard to U.S. and foreign carrier primary Web sites that market 
(i.e., advertise or sell) air transportation to the general public in 
the United States. We asked whether the requirements should apply to 
the Web sites of the largest U.S. and foreign air carriers only (e.g., 
those that operate at least one aircraft with more than 60 seats), of 
carriers that offer charter service only, and of carriers that 
advertise air transportation but do not sell airline tickets. As 
discussed above, the Department also proposed to require both U.S. and 
foreign carriers to ensure the accessibility of Web sites owned or 
controlled by agents that are not small business entities and to permit 
carriers to market on the inaccessible Web sites of small ticket 
agents, if they ensure that those small agents make Web-based discount 
fares and amenities available to passengers who indicate they are 
unable to use the agent's Web site. We sought comment on whether we 
should directly require ticket agents to ensure the accessibility of 
their Web sites under 49 U.S.C. 41712, rather than indirectly through 
the carriers. We also proposed to require that carriers disclose (and 
make available to sell) Web-based discounts and waive telephone or 
ticket counter reservation fees for customers indicating that due to a 
disability they are unable to use a carrier's inaccessible Web site 
(before the Web site conversion deadline). Finally, since individuals 
with certain disabilities (e.g., deaf-blind) may not be able to use a 
Web site that meets the WCAG 2.0 standard at Level AA without 
assistance, we proposed to require carriers to disclose and make 
available Web-based discounts and waive telephone or ticket counter 
reservation fees for customers indicating that due to a disability they 
are unable to use the carrier's accessible Web site after the Web site 
conversion deadline.
Applicability to Carrier Web Sites
    Comments: Overall, the majority of commenters favored our proposal 
to apply the Web site accessibility requirements to primary carrier Web 
sites that market air transportation to the general public in the 
United States. Despite their disagreements with the proposed technical 
standard, the scope of covered Web site content, and the implementation 
time frame, both U.S. and foreign carriers were nearly unanimous in 
supporting the concept of carrier Web site accessibility. There were 
some comments, particularly among industry commenters, in favor of 
limiting applicability of the Web site accessibility requirements based 
on carrier size or Web site function.
    The carrier associations who commented jointly urged the Department 
to apply the accessibility standard only to carrier Web sites that 
offer and sell air transportation. In their view, carrier Web sites 
that advertise air transportation but do not sell airline tickets 
should be excluded from coverage. Condor Flugdienst noted that foreign 
carriers operating a small number of weekly flights to and from the 
United States should be permitted an alternative means of compliance 
rather than having to make an investment in Web site accessibility 
similar to that of foreign carriers that operate more frequent covered 
service. All Nippon (ANA) concurred with the notion that basic 
information on carrier Web sites should be accessible to consumers with 
disabilities but stated that revising its Web sites targeting only U.S. 
consumers is impractical because all its Web sites (e.g., targeting 
Japan, Asia, Europe) draw on common data sources. The Regional Airline 
Association asserted that compliance costs for smaller carriers 
operating aircraft with 60 or fewer passenger seats would far outweigh 
the benefits but did not explicitly support excluding Web sites based 
on carrier size. One industry commenter suggested that DOT should 
exclude small or very small carriers with inaccessible Web sites from 
the accessibility requirements as long as the large partner carriers 
handling online ticket sales, check-in, etc., on their behalf also host 
on their own accessible Web sites the core air travel information and 
services available on the smaller airlines' inaccessible Web sites. 
There were very few comments by individual members of the public and 
none by commenters representing the disability community in favor of 
excluding any primary carrier Web sites from coverage.
    Carriers raised no objections to the provisions to require 
disclosure of Web-based discounts and amenities and waiver of 
reservation fees not applicable to other customers for individuals with 
disabilities who notify the carrier that they are unable to use a Web 
site due to their disability. Some pointed out that this service is 
already required by Part 382 so compliance would not pose any 
additional burden. Others expressed the view that this provision by 
itself would meet the service needs of customers with disabilities 
without imposing the cost of compliance with the WCAG standard.
    Several disability commenters, however, expressed dissatisfaction 
with the disclosure and fee waiver measures currently required by the 
Department when a carrier's Web site is not accessible. These 
commenters maintained that carriers frequently do not provide the 
discount information or do not waive reservation fees even when the 
individual identifies as having a disability. In 2010, Dr. Jonathan 
Lazar and students at the Department of Computer and Information 
Sciences of Towson State University conducted a study involving test 
calls to major carriers to determine how consistently carriers comply 
with these requirements. Their findings suggested that there are 
compliance problems. After placing a series of 60 phone calls (15 calls 
to each of 4 major carriers), students who self-identified as blind and 
specifically stated that they were unable to access the carrier's Web 
site noted at least one instance per carrier of price discrimination 
(e.g., discounted Web-based fares offered online were not disclosed to 
the caller or the agent refused to waive the telephone reservation 
fee). The rate of compliance failure was as high as 33 percent and 40 
percent respectively for two carriers.\29\
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    \29\ Lazar, Jonathan. ``Up in the air: Are airlines following 
the new DOT rules on equal pricing for people with disabilities when 
Web sites are inaccessible?'' Government Information Quarterly. 27.4 
(October 2010): 329-336. Web. 26 June 2012 http://www.sciencedirect.com/science/article/pii/S0740624X10000638
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    DOT Decision: After carefully considering the concerns and 
compliance alternatives proposed by commenters, the Department has 
decided to require U.S. and foreign carriers that operate at least one 
aircraft with a seating capacity of more than 60 passengers to apply 
the WCAG 2.0 Level AA standard to their primary Web sites that market 
air transportation to the general public in the United States 
regardless of the carrier's type of passenger operations (e.g., charter 
or scheduled), or in the case of foreign carriers, the frequency of 
covered flights. We note here that whenever we reference aircraft 
passenger seating capacity in this or other economic or civil rights 
aviation rulemakings, we are referring to an aircraft's seating 
capacity as originally designed by the manufacturer. This requirement 
includes the primary Web sites of any such carriers that advertise on 
that site but do not sell air transportation there. For carriers that 
only advertise air transportation or their role as providers of air 
transportation (e.g., contract carriers) on their Web sites, compliance 
will be less technically complex and

[[Page 67895]]

costly than for carriers that also sell airline tickets. For foreign 
carriers for whom air transportation to and from the United States is a 
small percentage of their overall operations, some additional 
complexity may be involved to convert data drawn from databases that 
are not covered by Part 382. But as we discussed earlier, the data 
conversion involved does not, in our view, constitute an undue burden.
    On the other hand, we have decided to exclude small carriers 
(defined as those exclusively operating aircraft with 60 or fewer 
seats) from the requirement to make their primary Web sites accessible 
because of concerns about cost burden. When we proposed to require all 
carriers, regardless of size, to make their Web sites accessible, our 
research indicated that the majority of small carriers operated fairly 
simple Web sites that do not offer online booking, check-in or flight 
status updates. In updating our research for the final regulatory 
evaluation, we found that the Web sites of many smaller carriers have 
added online booking engines, one of the more difficult Web site 
functions to make accessible. As such, we believe that the additional 
cost to comply with the accessibility standard and maintain their Web 
site's accessibility would be substantial for small carriers. At the 
same time, the benefit for consumers would be small as only a few 
carriers exclusively operate aircraft with 60 or fewer seats. We 
therefore agree with the Regional Airline Association that the 
additional compliance costs for these small carriers are likely to 
outweigh the additional benefits to consumers from slightly increasing 
the number of carriers subject to these requirements.
    To address carrier sites that are inaccessible to an individual 
with a disability before or after the Web site accessibility deadline, 
we retain the provisions requiring carriers to disclose Web-based 
discounts applicable to the individual's itinerary and waive fees 
applicable to telephone or ticket counter reservations for individuals 
who contact them through another avenue to make a reservation and 
indicate they are unable to access the Web site due to a disability. If 
the carrier charges a fee for Web site reservations that applies to all 
online reservations, the carrier may charge the same fee to a passenger 
with a disability requesting a reservation for a Web-based fare. We 
have noted earlier the commenter assertions and the Lazar study 
findings that some carriers do not consistently make Web-based 
discounts available or waive telephone or ticket counter reservation 
fees for those unable to use an inaccessible Web site. Therefore, we 
encourage carriers to ensure that their customer service staff is 
properly trained to comply with these requirements, as failures in this 
regard could result in enforcement action. We also encourage 
individuals with disabilities to immediately request a complaints 
resolution official (see 14 CFR 382.151) when they encounter any 
difficulties obtaining the required accommodation.
Ticket Agent Web sites
    Comments: All carrier associations and individual carriers 
commenting on the provision to require carriers to ensure the 
accessibility of ticket agent Web sites strenuously opposed it and most 
urged the Department to regulate ticket agents directly. These 
commenters cited significant added costs to carriers in order to 
monitor ticket agent Web sites and a lack of leverage on the carriers' 
part to make the agents comply. ANA also sought clarification of the 
provision that carriers must ensure compliance with the accessibility 
standard on ticket agent ``Web pages on which [their] airline tickets 
are sold.'' They wanted to know the extent of a carrier's obligation to 
ensure accessibility on agent Web pages, which in addition to the 
carrier's fares, display special offers and advertise travel components 
(e.g., hotel bookings, rental cars) that are not within DOT's 
jurisdiction.
    ANA also raised concerns about Web pages subject to oversight by 
more than one carrier if disagreements arise among the carriers as to 
whether the pages adequately meet the standard. ANA also wanted to know 
about Web pages that are likely to be viewed in the process of booking 
a carrier's fares but that do not specifically mention the carrier--
such as disclosures about service fees or refund fees imposed by the 
agent. Finally, they raised the possibility that DOJ may subsequently 
adopt a Web site accessibility standard that conflicts with the DOT 
standard, and asked whether carriers would be obligated to put agents 
at risk of DOJ sanctions by insisting that they follow the DOT 
standard. We respond to these concerns in the section DOT Decision 
below.
    The American Society of Travel Agents (ASTA) and National Tour 
Association (NTA) concurred with the view that airlines should not be 
quasi-enforcers of ticket agent compliance with Web site accessibility 
requirements, stating that the carriers' role should only be to provide 
notice to agents of their Web site accessibility obligations (e.g., 
through the Airlines Reporting Corporation). The Interactive Travel 
Services Association (ITSA) was the sole commenter representing ticket 
agents that supported a requirement for carriers to ensure agent Web 
site compliance as long as the sole determinant of compliance is the 
accessibility standard DOT mandates and not any additional requirements 
that individual airlines may wish to impose.
    Echoing ANA's comments about the scope of agent Web sites, other 
industry commenters pointed out that ticket agent Web sites contain 
content and functionality that go well beyond the marketing of air 
transportation. They observed that compliance with the accessibility 
standard would necessarily entail changes to many Web pages unrelated 
to air transportation. USTOA in particular argued that few, if any, 
tour operator Web sites offer customers the opportunity to purchase air 
transportation as a stand-alone product, which typically is offered as 
an add-on to supplement a cruise or land tour. They argued that Web 
site changes to make pages on which air transportation is marketed 
accessible will necessarily involve changes to the site layout and 
architecture affecting non-air transportation related Web pages. USTOA 
believes that this situation amounts to de facto regulation of travel 
products and services outside the scope of the ACAA and the 
Department's jurisdiction. Other travel industry commenters noted that 
only a small portion of the content on agent Web sites is air 
transportation-related and asserted that unless agents undertake the 
expense of rendering all the public-facing content on their Web sites 
accessible, their Web sites as a whole will not be accessible to 
passengers with disabilities under the proposed requirements.
    Commenters representing agents also pointed out that the cost of 
converting existing Web sites would be especially difficult for ticket 
agents that have minimal in-house resources providing Web site support. 
These commenters observed that many travel businesses would have no 
choice but to purge existing content and avoid adding any advanced 
features on their Web sites rather than incur the high cost of ensuring 
that all their covered content is accessible. As an alternative, ASTA/
NTA suggested that DOT consider requiring only new content on agent Web 
sites to be accessible, while permitting a safe harbor for existing 
content. They reasoned that even with a safe harbor provision, in most 
cases the continuous and rapid turnover of content would result in Web 
sites coming into compliance over a relatively short period of time.

[[Page 67896]]

    For the most part, disability advocacy organizations indicated 
their overall concurrence with the Department's proposals and few 
commented directly on whether the Department should require carriers to 
ensure the accessibility of ticket agent Web sites or ensure the 
compliance of ticket agent Web sites directly. Disability advocacy 
organizations that did comment on the ticket agent proposal remarked 
that carriers should be held responsible for ensuring ticket agent Web 
site accessibility through their contracts with the agents. They again 
observed that Part 382 already requires carriers to have provisions in 
their agreements with contractors that perform services required by 
Part 382 on their behalf. See section 382.15(b). A few individual 
members of the public who did not identify as having disabilities, 
however, did not support a requirement to hold carriers responsible for 
ensuring the compliance of ticket agent Web sites.
    In connection with ensuring the accessibility of ticket agent Web 
sites, industry commenters and some individual commenters also raised 
the concurrent Department of Justice (DOJ) rulemaking to revise its ADA 
title III regulations concerning Web site accessibility standards. 
These commenters stated that both Federal agencies must coordinate to 
ensure that the technical Web site accessibility criteria each will 
require are consistent. Some of these commenters urged the Department 
to postpone imposing a Web site accessibility standard with regard to 
ticket agents until the DOJ rulemaking is completed.
    Finally, the Department received a number of comments on the 
proposed provisions for carriers to ensure that agents that are small 
businesses and whose Web sites are inaccessible provide Web-based 
discounts, services, and amenities to individuals who indicate that 
they cannot use the agents' Web sites and who purchase tickets using 
another method. ASTA specifically supported this proposal as a viable 
trade-off for small entities in lieu of Web site conformance, saying 
that such businesses expect to have personal interaction with consumers 
anyway, so any additional burden of providing these services offline 
should be manageable. Some disability advocacy organizations took 
exception to the Department excluding small ticket agents from the 
carriers' responsibility to ensure that agent Web sites comply with the 
WCAG 2.0 standard. In their view, a requirement for carriers to ensure 
that small agents offer Web-based discounts to passengers who self-
identify as having a disability is not practical. They argued that 
customers will not necessarily know whether the agent is a small 
business and whether or not the agent's Web site should be accessible. 
They also objected to the notion that in order to access the same 
service as non-disabled people, they must self-identify as having a 
disability.
    DOT Decision: The Department has considered the viewpoints for and 
against requiring accessibility of ticket agent Web sites and the 
question of whether or not carriers should be responsible to ensure 
that such Web sites are accessible. After looking at all the available 
information, we have decided against requiring carriers to ensure the 
accessibility of ticket agent Web sites. We considered limiting the 
agent Web sites for which carriers must ensure compliance to those 
agents whose annual revenues related to passenger service to, within 
and from the United States are $100,000,000 or more. Limiting carriers' 
responsibility to ensure the accessibility of ticket agent Web sites to 
only the few largest agent Web sites would limit the cost burden to 
carriers of monitoring agent Web site compliance with this requirement 
while increasing the range of accessible air travel Web sites available 
to consumers with disabilities who would benefit from the rule.
    We decided against adopting this approach for two reasons. First, 
the Department of Justice (DOJ) has jurisdiction to regulate travel 
services as service establishments that are public accommodations under 
title III of the ADA, and DOJ expects to issue a proposal in early 2014 
on accessibility of public Web sites under ADA title III. The 
Department of Justice proposal would address the scope of the 
obligation for public accommodations to provide access to their Web 
sites for persons with disabilities, as well as the technical standards 
necessary to comply with the ADA. Ticket agents, which are public 
accommodations under ADA title III, would be covered entities under 
DOJ's rulemaking. Although in our view DOT has the rulemaking authority 
to require ticket agents to directly comply with the same Web site 
accessibility standard as carriers, we acknowledge DOJ's concurrent 
authority to do the same and are persuaded that a single consistent 
standard that applies to ticket agents for Web site accessibility will 
eliminate uncertainty and confusion in converting their Web sites.
    Secondly, we find the carriers' arguments persuasive that a 
requirement to ensure that their agents implement the Web site 
accessibility standards will be difficult for them to monitor and 
enforce. Furthermore, diverting technical resources away from the 
development and maintenance of their own primary Web sites in order to 
monitor ticket agent Web sites may detract from their efforts to 
identify and correct problems that may emerge after the WCAG 2.0, Level 
AA standard is implemented on their Web sites. For these reasons, we 
feel it will best serve the public interest not to require carriers to 
ensure that their ticket agents bring their Web sites into compliance 
with WCAG 2.0, Level AA at this time. In the same vein, the Department 
has decided not to require carriers to monitor and refrain from using 
ticket agents who fail to provide, either over the telephone or at an 
agent's places of business, Web-based fares and amenities to 
individuals who cannot access an agent's Web site due to their 
disabilities. Instead, the Department has decided to amend its rule on 
unfair and deceptive practices of ticket agents \30\ to require all 
ticket agents that are not considered small businesses under the Small 
Business Administration's (SBA) size standards \31\ to disclose and 
offer Web-based discount fares to prospective passengers who contact 
them through other channels (e.g., by telephone or at an agent's place 
of business) and indicate that they are unable to use an agent's Web 
site due to a disability.
---------------------------------------------------------------------------

    \30\ 14 CFR 399.80.
    \31\ See 13 CFR 121.201.
---------------------------------------------------------------------------

    The Department has also decided not to include an additional 
requirement in the rule on unfair and deceptive practices to prohibit a 
ticket agent from charging a fee for reservations made over the phone 
or at the agent's place of business to individuals who cannot use the 
agent's Web site due to a disability. In our view, amending the unfair 
and deceptive practices rule to bar fees is unnecessary since existing 
law already prohibits charging a fee in such circumstances. Under the 
``reasonable modification'' provision of DOJ's current title III ADA 
regulation, covered entities are required to make reasonable 
modifications to their policies, practices, and procedures when 
necessary to afford the same advantages to individuals with 
disabilities as are available to others, unless such modification would 
cause a fundamental alteration of the advantage offered.\32\ 
Furthermore, ADA title III prohibits covered entities from imposing 
charges to cover the cost of such reasonable modifications, even when a 
charge would normally be assessed to all customers for the same

[[Page 67897]]

service.\33\ DOJ's guidance concerning this provision explains that 
when a service normally provided at a fee to all customers is provided 
to an individual with a disability as a necessary measure to ensure 
compliance with the ADA, no fee may be imposed on the individual with a 
disability for that service.\34\ The Department believes that these 
title III provisions sufficiently establish the obligation of ticket 
agents to modify their policies to refrain from charging a fee to 
individuals with a disability for Web fares requested over the 
telephone or in-person at the agents' places of business when those 
individuals indicate that they are unable to access the agent's Web 
sites due to their disabilities.
---------------------------------------------------------------------------

    \32\ See 28 CFR 36.302(a).
    \33\ See 28 CFR 36.301(c) which prohibits a public accommodation 
from imposing a surcharge on a particular individual with a 
disability or any group of individuals with disabilities to cover 
the costs of measures, such as the provision of auxiliary aids, 
barrier removal, alternatives to barrier removal, and reasonable 
modifications in policies, practices, or procedures, that are 
required to provide that individual or group with the 
nondiscriminatory treatment required by the ADA or its implementing 
regulation.
    \34\ See 28 CFR part 36, App. B, p. 223 (September 15, 2010).
---------------------------------------------------------------------------

Implementation Approach and Schedule
    The SNPRM: The Department proposed a three-phase implementation 
schedule for ensuring that the carriers' primary Web sites would be 
fully compliant by two years after the effective date of the rule. The 
first phase would apply only to new or completely redesigned primary 
Web sites that would be required to be accessible if placed online 180 
days or later after the effective date. We explained that substantial 
technical changes such as those affecting a Web site's visual design or 
site architecture would constitute a ``redesign.'' The second phase 
would require all pages associated with obtaining core air travel 
services and information related to these core services, either to be 
directly conformant on the carrier's primary Web site, or have 
accessible links from the primary Web site to corresponding conformant 
pages on a mobile Web site by one year after the effective date. The 
third phase would require all public-facing content on the carrier's 
primary Web site, including core air travel services and information 
previously made accessible on a mobile Web site, to meet the 
accessibility standard by two years after the effective date. We also 
sought comment on alternative time frames and approaches for 
implementation of the WCAG 2.0 standard.
    Comments: Most commenters, whether representing industry or the 
disability community, disagreed with the proposed implementation 
approach and time frame. Nearly all of the industry comments, for 
example, favored a flat two-year implementation deadline for all Web 
site changes, rather than the proposed phased approach. Most of the 
industry comments favoring a two-year deadline also supported applying 
the accessibility standard to only the portion of a carrier's primary 
or mobile Web site involved in providing core air travel services and 
information. Spirit Airlines offered another option, recommending that 
only core air travel service and information pages be compliant with 
WCAG 2.0 at Level A by two years after the effective date and with 
Level AA by five years after the effective date. Air New Zealand, which 
did not object to the proposed WCAG 2.0 Level AA standard or to the 
scope (all public-facing Web pages on the primary Web site) argued that 
more than two years would be needed to render all covered content 
compliant. The Interactive Travel Services Association (ITSA) opposed 
the phased implementation timeline and urged the Department to impose a 
single compliance deadline of at least 18 months after the effective 
date for all Web content. Not all commenters rejected a phased 
approach, however. The American Society of Travel Agents (ASTA) opposed 
a flat two-year compliance period, stating that the timeline should be 
variable, allowing more time to convert larger Web sites. ASTA also 
supported a requirement for priority to be given to bringing content 
most likely to be used by consumers with disabilities into compliance 
first.
    Although many individual commenters who self-identified as having a 
disability supported the proposed time frame, disability advocacy 
organizations generally considered the time frame too generous. In 
their view, the technology already exists to restructure a large Web 
site on an accelerated schedule. ACB and AFB found the staggered 
implementation time frame confusing and potentially subject to 
litigation. They recommended that all Web site pages be compliant by 
six months after the effective date, except for certain legacy pages 
and content that would pose an undue burden to convert. CCD and NCIL 
advocated that at least Web pages providing the core air transportation 
services be compliant within six months after the effective date.
    ITI offered several comments on the proposed implementation 
approach. They observed that while the technical challenges of Web site 
conversion vary greatly among the carriers, it is safe to say that when 
accessibility is properly integrated into the development process, 
technical efficiencies can be expected over time. They also observed 
that while new pages generally can be made accessible more easily than 
existing content, both share common back end infrastructure that may 
need to be changed. These infrastructure changes may involve additional 
staff training and implementation time in order to enable accessibility 
on new pages. They advised the Department to allow adequate time to 
execute all the required changes.
    DOT Decision: We have considered all these comments at length and 
have been persuaded that the three-phase implementation schedule 
proposed for carriers' Web sites to be fully compliant within two years 
should not be adopted. However, for reasons we discussed earlier, the 
Department is convinced that it should require all covered public-
facing content on a carrier's primary Web site to be accessible. The 
Department believes that reduction of compliance costs can be achieved 
without compromising access to all the public-facing pages on an 
airline's Web site content for people with disabilities by providing 
additional time for carriers to make their Web sites accessible. The 
additional time before full compliance is required will increase the 
extent to which accessibility can be built into newly launched or 
redesigned Web pages, forms, and applications, while minimizing the 
amount of retrofitting required. As such, we are requiring carriers 
that market air transportation to the general public in the United 
States and operate at least one aircraft with a seating capacity of 
more than 60 passengers to bring all Web pages associated with 
obtaining core air travel services and information (i.e., booking or 
changing a reservation (including all flight amenities), checking-in 
for a flight, accessing a personal travel itinerary, accessing the 
status of a flight, accessing a personal frequent flyer account, 
accessing flight schedules, and accessing carrier contact information) 
into compliance with the WCAG 2.0 standard at Level AA two years after 
the effective date of the rule. All remaining covered public-facing 
content on their Web sites must meet the WCAG 2.0 standard at Level AA 
three years after the effective date of the rule. We believe the 
extended deadline will lower the overall compliance costs for carriers 
by allowing more time to implement the changes during scheduled Web 
site maintenance and updates. A more

[[Page 67898]]

detailed discussion of issues relating to the cost of implementation 
will be presented in the upcoming section on Costs and Benefits.
5. Conforming Alternate Versions
    The SNPRM: In the September 2011 SNPRM preamble, we discussed our 
concerns about some methods used to provide accessible Web content to 
individuals with disabilities. Specifically, we discussed the method of 
making the content of a primary Web site or Web page available in a 
text-only format at a separate location rather than making it directly 
conformant on the primary Web site. The Department had learned from a 
number of sources that such alternate sites are often not well 
maintained, frequently lack all the functionality available on the non-
conforming Web site/page, and have content that is not up-to-date.\35\ 
These deficiencies are so prevalent that many accessibility experts 
flatly oppose alternate text-only sites as a general accessibility 
solution.\36\ WCAG 2.0, however, permits a conforming alternate version 
of a Web page as a way for a non-conforming page to comply with the 
standard. The conforming alternate version must meet the WCAG 2.0 Level 
AA success criteria, be up-to-date with and contain the same 
information and functionality in the same language as the non-
conforming page, and at least one of the following must be true: (1) 
The conforming version can be reached from the non-conforming page via 
an accessibility-supported mechanism, or (2) the non-conforming version 
can only be reached from the conforming version, or (3) the non-
conforming version can only be reached from a conforming page that also 
provides a mechanism to reach the conforming version.\37\ The 
conforming alternate version is intended to provide people with 
disabilities equivalent access to the same content and functionality as 
a directly accessible Web page. WCAG 2.0 implementation guidance, 
however, notes that providing a conforming alternate version of a Web 
page is a fallback option for WCAG conformance and that the preferred 
method is to make all Web page content directly accessible.\38\ 
Although the Department proposed no requirement restricting the use of 
conforming alternate versions, we stated our intent that Web site 
content be directly accessible whenever possible. See 76 FR 59307, 
59313 (September 26, 2011). We sought comment on whether we should 
explicitly prohibit the use of conforming alternate versions except 
when necessary to provide the information, services, and benefits on a 
specific Web page or Web site as effectively to individuals with 
disabilities as to those without disabilities. We also asked under what 
circumstances it may be necessary to use a conforming alternate version 
to meet that objective.
---------------------------------------------------------------------------

    \35\ See Disabilities, Opportunities, Internetworking, and 
Technology, University of Washington. Are text-only Web pages an 
accessible alternative? (January 23, 2013), http://www.washington.edu/doit/CUDE/articles?1149 (last visited July 16, 
2016). See also Accessibility Hawks, Why Text Only Alternate Web 
Pages Are Not Ideal For Accessibility (March 12, 2012), http://accessibilityhawks.com/web-accessibility-articles/why-text-only-alternate-Web-pages-are-not-ideal-for-accessibility.php (last 
visited July 16, 2013). See also Should Sites Be Accessible or 
Provide a Text-Only Alternative, http://www.evengrounds.com/articles/should-sites-be-accessible-or-provide-a-text-only-alternative (last visited July 16, 2013).
    \36\ Id.
    \37\ See ``Understanding Conformance'' at http://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-conforming-alt-versions-head, June 20, 2012.
    \38\ See Id.
---------------------------------------------------------------------------

    Comments: In general, as discussed earlier, industry commenters 
favored the use of alternate Web site versions that did not conform to 
the WCAG 2.0 definition of ``conforming alternate version.'' Although 
some carriers did not oppose adopting the WCAG 2.0 Level AA success 
criteria, nearly all preferred having the option to apply any accepted 
accessibility standard only to primary Web site content involving core 
air travel services and information and to provide such content on a 
separate mobile or text-only Web site. We note that this proposed 
alternative would result in two parallel Web sites, each with its own 
development and maintenance costs. ITI commented that it should be up 
to the carrier to decide whether to build and maintain two Web sites 
(one that meets the WCAG 2.0 Level AA success criteria and one that 
does not) or a single compliant Web site. ITI observed that even though 
over time the cost of maintaining two Web sites would be greater than 
for a single compliant Web site, carriers should determine which 
approach would work best for them.
    Disability community commenters rejected any option involving an 
alternative Web site largely because of their experience with such Web 
sites being poorly maintained and containing outdated content. 
Moreover, they viewed reliance on text-only alternatives for achieving 
accessibility as a ``fundamental mistake.'' They noted that arguments 
for text-only Web sites carry the implicit assumption that 
accessibility is intended to focus on users with visual disabilities. 
They emphasized the importance of considering the accessibility needs 
of all users, including those with hearing, cognitive, and dexterity 
disabilities, who benefit from accessible content that contains images, 
color, time-based media, and JavaScript.
    DOT Decision: The Department continues to believe that conforming 
alternate versions, as defined by WCAG 2.0, have a role, albeit a very 
limited one, in achieving Web site accessibility. The alternate version 
promoted by the carrier associations and some individual carriers 
(i.e., text-only Web site containing core air travel services and 
information only), however, would host on the alternate Web sites only 
selected portions of the information available on the carriers' primary 
Web sites. The Department believes that permitting the use of an 
alternate version of any Web page that does not conform to the elements 
of a ``conforming alternate version'' as defined by WCAG 2.0 is 
incompatible with the goal of equal access. As discussed earlier, in 
order for a non-conforming Web page to be included within the scope of 
conformance by using a conforming alternate Web page under this rule, 
the alternate page must meet the WCAG 2.0 Level AA success criteria, be 
as up-to-date and contain the same information and functionality in the 
same language as the non-conforming page, and at least one of the 
following must be true: (1) The conforming version can be reached from 
the non-conforming page via an accessibility-supported mechanism, or 
(2) the non-conforming version can only be reached from the conforming 
version, or (3) the non-conforming version can only be reached from a 
conforming page that also provides a mechanism to reach the conforming 
version. We note that the use of WCAG 2.0 conforming alternate 
versions, if unrestricted, is likely to perpetuate the problem of 
unequal access as carriers allot fewer resources than needed over time 
to properly maintain the secondary site. Given the incentives for 
carriers to focus on the development and maintenance of their primary 
Web site and the cost inefficiencies of maintaining two separate Web 
sites, the Department concurs with the WAI's view that the preferred 
method of conformance in most circumstances is to make all content 
(e.g., each page) on the primary Web site directly accessible.
    Moreover, limiting the use of conforming alternate versions aligns 
with the well-established principle of disability nondiscrimination law 
that separate or different aids, benefits, or services can only be 
provided to individuals with disabilities (or a class of such 
individuals) when necessary to provide aids, benefits, or services that

[[Page 67899]]

are as effective as those provided to others. See, e.g., the ADA 
implementing regulation for title II at 28 CFR 35.130(b)(1)(iii) and 
(iv) and 35.130(b)(8)(d), and the ADA implementing regulation for title 
III at 28 CFR 36.202(b) and (c), and 36.203(a). Therefore, the 
Department has decided to permit the use of Level AA conforming 
alternate versions only when making a particular public-facing Web page 
compliant with all WCAG 2.0 Level AA success criteria would constitute 
an undue burden or fundamentally alter the content on that page. Since 
a fundamental principle underlying the WCAG success criteria is that 
they be reasonable to do all of the time, most of the more difficult 
success criteria have explicit exceptions built-in for situations where 
direct compliance is not reasonable. For example, Success Criterion 
1.1.1 (Level A) provides that all non-text content that is presented to 
the user has a text alternative that serves the equivalent purpose and 
lists six exceptions/alternative means of compliance for situations in 
which presenting non-text content as a text alternative would not be 
technically feasible. These include non-text content that is (1) a 
control or accepts user input, (2) time-based media, (3) a test or 
exercise, (4) designed to create a specific sensory experience, (5) a 
Completely Automated Public Turing test to tell Computers and Humans 
Apart (CAPTCHA), or (6) a decoration, formatting, or invisible. Most of 
these exceptions permit the text alternative to at least provide 
descriptive identification of the non-text content. With such broad 
exceptions intended to address technically challenging situations 
specifically built into the success criteria, an undue burden or 
fundamental alteration defense for using a conforming alternate version 
rather than rendering a Web page directly compliant with the Level AA 
success criteria will be a very high bar to meet.
    If, despite the exceptions built into the WCAG 2.0 standard, a 
carrier believes an undue burden defense is justified with respect to a 
particular Web page, we would emphasize that the determination must be 
based on an individualized assessment of a number of factors showing 
that directly converting the Web page would cause significant 
difficulty or expense to the carrier. Those factors include: The size 
of the carrier's primary Web site; the type of change needed to bring 
the particular Web page into compliance; the cost of making the change 
as compared to the cost of bringing the Web site as a whole into 
compliance; the overall financial resources of the carrier; the number 
of carrier employees; the effect that making the change would have on 
the expenses and resources of the carrier; whether the carrier is part 
of a larger entity and its relationship to the larger entity; and the 
impact of making the change on the carrier's operation.
6. Compliance Monitoring
    The SNPRM: In the September 2011 SNPRM, the Department discussed 
several issues relating to ensuring and monitoring carriers' compliance 
with the WCAG 2.0 accessibility standard. We discussed, but did not 
propose to require, that carriers post WCAG 2.0 ``conformance claims'' 
on their Web sites. (A ``conformance claim'' is W3C's term of art for a 
statement by an entity giving a brief description of one Web page, a 
series of pages, or multiple related pages on its Web site for which 
the claim is made, the date of conformance, the WCAG guidelines and 
conformance level satisfied, and the Web content technologies relied 
upon.) See Web Content Accessibility Guidelines (WCAG) 2.0: W3C 
Recommendation 11 December 2008, available at http://www.w3.org/TR/WCAG/#conformance-claims (as of November 16, 2012). Although concerned 
that conformance claims may be too resource intensive for complex and 
dynamic carrier Web sites, we nonetheless invited public comment on 
effective alternative means for readily identifying compliant Web pages 
during the Web site conversion period and for verifying overall Web 
site accessibility after the compliance deadline. We asked whether the 
Department should initiate random ``spot'' investigations of carrier 
and online ticket agency Web sites to monitor compliance after the rule 
becomes effective. We also asked whether there were any specific 
technical barriers to maintaining Web site accessibility after full Web 
site compliance is initially achieved.
    Comments: The Department received a fairly wide range of comments 
addressing our inquiries on compliance monitoring. The NFB disagreed 
with the Department's view that conformance claims may be too costly to 
be feasible, stating that conformance claims are the ``cheapest and 
easiest method of identifying accessible Web pages for both the carrier 
and the user.'' If the Department does not decide to adopt conformance 
claims, NFB suggested that in the alternative carriers provide: (1) A 
mechanism for users to request accessibility information that carriers 
must promptly disclose in an accessible format; (2) a ``how to'' 
tutorial on using the accessible Web site; or (3) customer service 
assistance specifically to address accessibility questions and needs. 
NFB considered these suggested alternatives less effective and less 
feasible than conformance claims. Some commenters suggested that the 
Department require carriers to adopt some form of self-monitoring such 
as a link to a customer survey prominently displayed on the Web site, a 
pop-up to ask users their opinion or permission to send them a survey 
regarding Web site accessibility, or a feedback mechanism on the Web 
site specifically for reporting accessibility problems. Other 
suggestions were that the Department itself randomly check carrier Web 
sites to ensure compliance or work collaboratively with academic 
institutions to carry out random monitoring. Yet another suggestion was 
that the Department require carriers to establish disability teams to 
conduct an annual or biannual assessment of their Web sites for 
accessibility barriers and send a report to the Department.
    The carrier associations suggested that the Department employ 
accessibility experts and use available online tools to determine if 
carriers' Web sites meet the accessibility standard. They also 
suggested that initial ``spot'' investigations be used to provide 
constructive feedback to carriers on Web site areas that appear not to 
meet the required standard. Regarding specific technical barriers, they 
noted that Java or Flash programs used to enhance the customer Web site 
experience are not easily made accessible and should be exempt from the 
standard or a text alternative version permitted.
    DOT Decision: The Department considered the value of conformance 
claims as a means to readily identify compliant Web pages and Web sites 
and weighed the expense that meeting all the required elements of 
conformance claims is likely to incur. We also considered the fact that 
W3C itself does not require entities to post conformance claims. We 
have decided that other methods would allow the Department to monitor 
Web site compliance and provide feedback to carriers without imposing 
any additional cost burden on them. The Department encourages carriers 
to adopt one or more of the suggestions above for obtaining user 
feedback on the accessibility of their Web sites and urges them to use 
the feedback to continuously improve the accessibility of their Web 
sites. We especially recommend, but do not require, that carriers 
include a feedback form on their Web sites, perhaps located on a page 
that can be reached from a link on the Web pages associated with

[[Page 67900]]

disability assistance services. At the same time, we do not consider 
self-monitoring alone adequate for ensuring compliance. The Department 
intends, therefore, to engage Web site accessibility experts after the 
date specified in this rule for Web site compliance to check the 
compliance status of carrier Web sites so that we can notify carriers 
of non-compliant areas for corrective action. A carrier's failure to 
take corrective action within a designated time frame may result in the 
Department taking enforcement action.
7. Online Disability Accommodation Request
    The SNPRM: Following up on a similar inquiry we had made to the 
public in the 2004 Foreign Carrier NPRM, we asked in the September 2011 
SNPRM whether the Department should require carriers and ticket agents 
to provide a mechanism for passengers to provide online notification of 
their requests for disability accommodation services (e.g., enplaning/
deplaning assistance, deaf/hard of hearing communication assistance, 
escort to service animal relief area, etc.).
    Comments: The comments the Department received on this question 
were starkly split. The disability advocacy community and some 
individual members of the public strongly favored adopting a 
requirement for carriers to allow passengers to submit a request online 
for a disability accommodation. Representatives from industry opposed 
any mandate for them to provide this service. Disability advocacy 
commenters observed that online service request notification would be 
advantageous for passengers with disabilities, who would have a written 
record of their requests and for carriers, who would have the request 
in writing in case there was a need for additional information. The 
Open Doors Organization (ODO) stated that ``everyone in the industry,'' 
including travel agents, should be using special service requests 
uniformly. ODO observed that passengers with disabilities who book 
their tickets with online travel agents oftentimes must still call the 
carrier to set up the service request. ODO also pointed out that when 
the option is available to make a disability service request online 
when booking with an online travel agent, the service request often 
does not transfer to the carrier. The carrier associations noted that 
several carriers already provide an online accommodation request 
function. They stated that carriers generally still prefer for 
passengers to speak with a customer service representative about their 
accommodation needs. The carrier associations believe that any 
requirement to provide an online service request function will serve to 
mislead passengers into believing that no other communication with the 
carrier about their accommodation needs is necessary, thus preventing 
carriers from getting all the information necessary to properly 
accommodate passengers.
    DOT Decision: The Department believes that having online capability 
for requesting a disability accommodation has a number of potential 
benefits both to passengers with disabilities and to carriers. Aside 
from the advantage to a passenger of having an electronic record of 
providing notice to the carrier of a service request, an online service 
request will serve as a flag to the carrier of the passenger's 
accommodation needs. The Department is therefore requiring carriers to 
make an online service request form available for passengers with 
disabilities to request services including, but not limited to, 
wheelchair assistance, seating accommodation, escort assistance for a 
visually impaired passenger, and stowage of an assistive device. We 
also note the carrier associations' argument that simply making an 
online service request may not be sufficient to ensure the correct 
accommodation is provided. We agree with their assertion that 
additional information may be needed at times from the passenger. 
Therefore, carriers will be permitted to require that passengers with 
disabilities making an online service request provide information 
(e.g., telephone number, email address) that the carrier can use to 
contact passengers about their accommodation needs. Carriers that 
market air transportation online will be required to provide the 
service request on their Web sites within two years after the effective 
date of this rule.
    We view an online service request form as a useful tool to assist 
carriers in providing timely, appropriate assistance and reducing 
service failures that lead to complaints. Furthermore, aggregate data 
on online service requests would potentially be useful in helping 
carriers to understand the volume and types of service requests across 
time periods and routes.

Airport Kiosk Accessibility

    Automated airport kiosks are provided by airlines and airports to 
enable passengers to independently obtain flight-related services. The 
Department proposed provisions in the September 2011 SNPRM to require 
accessibility of automated airport kiosks affecting airlines under 14 
CFR part 382 and U.S. airports with 10,000 or more enplanements per 
year under 49 CFR part 27 (Part 27). Part 27 is the regulation 
implementing section 504 of the Rehabilitation Act of 1973 as it 
applies to recipients of Federal financial assistance from the 
Department of Transportation. The proposed provisions of Part 382 would 
require carriers that own, lease, or control automated kiosks at U.S. 
airports with 10,000 or more annual enplanements to ensure that new 
kiosks ordered more than 60 days after the effective date of the rule 
meet the accessibility design specifications set forth in the proposal. 
We intended this provision to apply to kiosks for installation in new 
locations at the airport and as replacements for those taken out of 
service in the normal course of operations (e.g. end of life cycle, 
general equipment upgrade, and terminal renovation). The design 
specifications we proposed were based largely on Section 707 of the 
2010 ADA Standards for Accessible Design. We also included selected 
specifications from the Access Board's section 508 standard for self-
contained, closed products (36 CFR 1194.25). During the interim period 
from the effective date of the rule until all automated kiosks owned by 
a carrier are accessible, the Department proposed to require that each 
accessible kiosk be visually and tactilely identifiable to users as 
accessible (e.g., an international symbol of accessibility affixed to 
the device) and be maintained in proper working condition. We 
specifically proposed not to require retrofitting of existing kiosks.
    We intended the requirements proposed above also to apply to 
shared-use kiosks that are jointly owned by one or more carriers and 
the airport operator or a third-party vendor. Therefore, provisions to 
amend 49 CFR part 27 were proposed to apply nearly identical 
requirements to U.S. airports. We also proposed to require that 
carriers and airport operators enter into written, signed agreements 
allocating responsibility for ensuring that shared-use equipment meets 
the design specifications and other requirements by 60 days after the 
final rule's effective date. We included a provision proposing to make 
all parties jointly and severally responsible for the timely and 
complete implementation of the agreement provisions. Again, nearly 
identical requirements for entering a written agreement and making the 
parties jointly and severally liable for implementing the agreement 
were proposed for both Part 382 and Part 27.
    In addition, we proposed to amend Part 382 to require each carrier 
to provide equivalent service upon request

[[Page 67901]]

to any passenger with a disability who cannot readily use its automated 
airport kiosks. Such assistance might include assisting a passenger who 
is blind in using an inaccessible automated kiosk or assisting a 
passenger who has total loss of the use of his/her limbs in using an 
accessible automated kiosk. We proposed to require carriers to provide 
equivalent service upon request to passengers with a disability who 
cannot readily use their accessible automated kiosks, because even 
accessible automated kiosks cannot accommodate every type of 
disability.
    Finally, we proposed the same effective date for all requirements 
applying to the carriers under 14 CFR part 382 and to the airport 
operators under 49 CFR part 27 to avoid any delays in implementing 
accessibility for shared-use automated kiosks.
1. Covered Equipment and Locations
Automated Airport Kiosk Definition and Applicability Based on Function/
Location
    The SNPRM: The ownership of automated kiosks varies from airport to 
airport. In some airports, automated kiosks are airline proprietary 
equipment (i.e., owned, leased, or controlled by each individual 
airline). In other airports, kiosk ownership is shared jointly by the 
airport operator and airlines serving the airport and are often 
referred to as common use self-service (CUSS) machines. In the 
September 2011 SNPRM, the Department proposed to define an airline-
owned automated airport kiosk covered by this rule as ``a self-service 
transaction machine that a carrier owns, leases, or controls and makes 
available at a U.S. airport to enable customers to independently obtain 
flight-related services.'' For CUSS machines, we proposed the term 
``shared-use automated airport kiosk'' defined as ``a self-service 
transaction machine provided by an airport, a carrier, or an 
independent service provider with which any carrier having a compliant 
data set can collaborate to enable its customers to independently 
access the flight-related services it offers.'' We proposed to apply 
the accessibility design specifications to all proprietary and shared-
use automated kiosks that provide flight-related services (including, 
but not limited to, ticket purchase, rebooking cancelled flights, seat 
selection, and obtaining boarding passes or bag tags) to customers at 
U.S. airports with 10,000 or more enplanements per year. We asked in 
the preamble whether we had adequately described automated airport 
kiosks in the rule text.
    Comments: In their joint request of October 7, 2011, to clarify the 
scope of the proposed requirement, A4A, IATA, the Air Carrier 
Association of America, and RAA asked the Department whether automated 
ticket scanners for rebooking flights during irregular operations were 
included in the definition of automated kiosks we intended to cover in 
the rulemaking. After our clarification notice of November 21, 2011, 
addressing ticket scanners, ITI sought further clarification of how 
accessibility requirements apply to kiosks based on their functionality 
and location at the airport (e.g., check-in or baggage tagging kiosks 
located near the ticket counter, boarding or rebooking kiosks near the 
gate areas). The Trace Center commented that check-in and other kiosks 
at airports such as ticket scanners for rebooking, self-tagging baggage 
kiosks, etc. should all be covered. They emphasized that no exceptions 
should be made for particular types of airport kiosks, but if needed 
due to technology shortcomings, should only apply to a particular kiosk 
functions, not to an entire kiosk or category of kiosks. The Trace 
Center also suggested that any exceptions based on function should be 
reviewed every five years in light of advances in technology.
    DOT Decision: In our notice of November 21, 2011, the Department 
clarified our position that a kiosk that allows passengers to rebook 
their flights independently provides a flight-related service and 
therefore is within the intended scope of the proposed rule. Although 
following the notice we received additional comments suggesting that 
certain types of automated airport kiosks be excluded from coverage 
based on function or location at the airport, the Department finds no 
reasonable basis for such exclusions. Despite the trend toward fewer 
consumers using an airport kiosk than a home computer or Smartphone to 
check in and download their boarding passes, we expect airlines to 
continue expanding the menu of new flight-related services available on 
kiosks at various locations throughout the airport (e.g., rebooking, 
ticketing, and flight information). It continues to be the Department's 
intention that all flight-related services offered to passengers 
through airport kiosks in any location at the airport be accessible to 
passengers with disabilities. Therefore, the accessibility requirements 
will apply to all new automated airport kiosks and shared-use automated 
airport kiosks installed more than three years after the effective date 
of this rule until at least 25 percent of automated kiosks in each 
location at the airport are accessible. By ``location at the airport'' 
we mean every place at a U.S. airport where there is a cluster of 
kiosks or a stand-alone kiosk (e.g., in a location where five kiosks 
are situated in close proximity to one another, such as near a ticket 
counter, at least two of those kiosks must be accessible; in all 
locations where a single kiosk is provided which is not in close 
proximity to another kiosk, the single kiosk must be accessible). When 
the kiosks provided in a location at the airport perform more than one 
function (e.g., print boarding passes/bag tags, accept payment for 
flight amenities such as seating upgrades/meals/WiFi access, rebook 
tickets, etc.), the accessible kiosks must also provide all the same 
functions as the inaccessible kiosks. (See section below on 
Implementation Approach and Schedule.)
Kiosk at Non-Airport Locations
    The SNPRM: Although we proposed to apply the accessibility standard 
only to automated airport kiosks, we noted in the preamble that 
airlines may also own, lease, or control kiosks that provide flight-
related services in non-airport venues (e.g., hotel lobbies) covered by 
ADA title III rules. We asked for public comment on whether kiosks that 
carriers provide in non-airport venues should also be covered by this 
rulemaking.
    Comments: Six disability advocacy organizations (ACB, AFB, NFB, 
NCIL, PVA, and BBI) strongly urged the Department to apply the 
accessibility requirements to kiosks in non-airport locations. PVA 
argued that airlines should be required to ensure that kiosks providing 
flight-related services are accessible wherever they are located. ACB, 
AFB, NFB, NCIL and BBI all noted that both DOT and DOJ potentially have 
jurisdiction over kiosks in non-airport locations. ACB and AFB 
acknowledged that there may be differences between the DOT and DOJ 
requirements for kiosk accessibility given that DOJ is currently 
working on a rulemaking to apply accessibility standards to kiosks 
other than ATMs and fare machines provided by entities covered under 
ADA title III. NFB, NCIL and BBI all supported DOT's initiative to 
cover non-airport kiosks under the ACAA but expressed concern that the 
ACAA regulations not impede or interfere with rights and remedies 
available under the ADA or other laws. The ACAA, for example, lacks a 
private right of action like that provided by the ADA against entities 
that violate the law. NFB, ACB, and AFB specifically urged the 
Department to cover non-airport kiosks in the final rule and to state 
in the preamble that ADA

[[Page 67902]]

provisions prevail when there is an overlap with the ACAA provisions. 
Among individual commenters, there was a mix of responses for and 
against applying the accessibility standard in DOT's final rule to 
airline kiosks in non-airport venues. Individual members of the public 
who did not identify themselves as having a disability tended to oppose 
applying the standard to kiosks located outside airports due to 
concerns about possible conflicts between the applicable DOT and DOJ 
standards.
    On the industry side, only the carrier associations commented, 
stating that they were opposed to applying the DOT standard to airline 
kiosks located in places of public accommodation where ADA title III 
already applies.
    DOT Decision: Although a case can be made to support covering 
airline-owned kiosks located in non-airport venues under the ACAA 
regulations, the Department believes there are compelling reasons for 
not doing so at this time. A primary goal of this ACAA rulemaking is to 
apply an accessibility standard to new automated airport kiosks 
installed after a certain date. To achieve this, airlines must work 
with the airports and their own technical teams, as well as with the 
hardware designers and software developers of their suppliers, to 
design, develop, test, and install accessible kiosks at airports with 
10,000 or more annual enplanements where they own, lease, or control 
kiosks. Each carrier may have several different kiosk suppliers with 
whom they must work, depending on the airports they serve. We believe 
requiring airlines to meet the accessibility standard for kiosks 
located in non-airport venues would add significantly to their 
compliance burden and divert resources needed to meet their primary 
goal of compliance at U.S. airports. In our view, airline compliance 
with respect to airport kiosks is a technically complex and resource 
intensive undertaking that must take priority over making kiosks 
located in other places accessible. Within the next few years, kiosks 
in non-airport locations will be subject to DOJ's accessibility design 
standard under its revised ADA title II and III regulations. This means 
that at most there will be a lag of a few years from the time airline 
kiosks at airport locations and those at non-airport locations are 
required to be accessible. We believe this time lag is an acceptable 
trade off to support proper implementation of the fundamental goal of 
airport kiosk accessibility.
Allocation of Responsibilities for Shared-Use Kiosks
    The SNPRM: The Department proposed that carriers and airports be 
required to enter into written, signed agreements concerning shared-use 
kiosks that they jointly own, lease, or control. The purpose of the 
agreements is to allocate responsibilities among the parties for 
ensuring that new shared-use kiosks ordered after the effective date 
meet the design specifications, are identified as accessible, and are 
maintained in working condition. We asked a number of questions about 
the allocation of responsibilities and cost-sharing between airport 
operators and airlines for the procurement, operation, and maintenance 
of shared-use kiosks. We asked about potential difficulties carriers 
and airport operators would have in meeting the written agreement 
requirement or in implementing the agreements. We also asked whether 
there were any shared-use kiosk ownership arrangements involving 
airlines only or between airlines and outside vendors that would 
require additional time to implement.
    Comments: The Department received very few comments directly 
responsive to the questions we asked about allocation of 
responsibilities and costs between carriers and airport operators on 
shared-used automated kiosks. Regarding the proposed written 
agreements, the carrier associations asserted that it would take 24 
months to enter into them, presumably due to the time necessary to 
revise the IATA kiosk standards. Denver International Airport did not 
comment specifically on the deadline for compliance with the agreement 
provision. San Francisco International Airport indicated that six 
months would be needed to comply with the agreement provision. They 
also objected to the provision holding airports and carriers jointly 
and severally responsible for compliance with the accessibility 
standard for new kiosk orders and other provisions applicable to 
shared-use automated kiosks. Their concern was that airlines and 
airports have separate responsibilities for ensuring that shared-use 
kiosks are accessible and would have no control over the other party 
meeting its responsibilities under the agreement. They argued that 
airports should not be held responsible for airlines failing to do 
their part as provided in the joint agreement. In their view, the 
provision for both parties to be jointly and severally liable is not 
practical and they asked the Department to delete it.
    DOT Decision: The Department has considered the merits of the 
arguments against the proposed provision to hold carriers and airport 
operators jointly and severally liable for compliance of shared-use 
kiosks with the accessibility requirements. We continue to believe, 
however, that joint accountability is essential to ensuring that 
shared-use kiosks comply with the design specifications set forth in 
the final rule. Moreover, there is precedent for holding carriers and 
airport operators jointly and severally liable under Part 382 (see 14 
CFR 382.99(f)) and under Part 27 (see 49 CFR 27.72(c)(2) and (d)(2)) 
for the provision and maintenance of lifts and accessibility equipment 
for boarding and deplaning at airports. Therefore, we have retained in 
the final rule provisions stating that carriers and airports are 
jointly and severally liable for ensuring that shared-use automated 
airport kiosks are compliant with the requirements, including the 
maintenance provisions. We have accepted, however, the recommendation 
to drop the requirement for a written, signed agreement. Both parties 
nevertheless will be responsible for jointly planning and coordinating 
to ensure that shared-use kiosks are accessible and will be held 
jointly and severally liable if compliance is not achieved. We believe 
the liability provision will be an incentive for airports and airlines 
to work together to carry out requirements that cannot be successfully 
implemented without their mutual cooperation.
2. Accessibility Technical Standard
    The SNPRM: The Department proposed and sought public comment on 
design specifications based on section 707 of the ADA and ABA 
Accessibility Guidelines (now codified in the Department of Justice's 
2010 ADA Standards) \39\ that apply to automated teller machines (ATM) 
and fare machines and on selected specifications from the section 508 
standard for self-contained closed products (see 36 CFR 1194.25). Below 
we have summarized the questions we posed along with the responses we 
received.
---------------------------------------------------------------------------

    \39\ See 28 CFR 35.104 (defining the ``2010 Standards'' for 
title II as the requirements set forth in appendices B and D to 36 
CFR part 1191 and the requirements contained in Sec.  35.151); see 
also 28 CFR 36.104 (defining the ``2010 Standards'' for title III as 
the requirements set forth in appendices B and D to 36 CFR part 1191 
and the requirements contained in subpart D of 28 CFR part 36). 
Appendices B and D to 36 CFR part 1191 contain the Access Board's 
2004 ADA Accessibility Guidelines (2004 ADAAG), consolidating both 
the ADA Accessibility Guidelines and Architectural Barriers 
Accessibility Act Guidelines (see, 69 FR 44084 (July 23, 2004)).

---------------------------------------------------------------------------

[[Page 67903]]

    Comments: The consensus among most commenters was that the 
Department's proposed design specifications adequately covered all the 
functions automated airport kiosks presently offer, as well as some 
functions that may be added in the future. The Trace Center, however, 
urged the Department to look beyond the 2010 ADA Standards for 
Accessible Design and provisions of the section 508 regulation dating 
from 1998 as the basis for the design specifications. Many of their 
comments for additions and revised wording were based on the Access 
Board's advance notices of proposed rulemaking for the Section 508 
update \40\ and on success criteria from WCAG 2.0.\41\ Two individual 
commenters suggested that the Department consider incorporating parts 
of the U.S. Election Assistance Commission's Voluntary Voting System 
Guidelines (VVSG).\42\
---------------------------------------------------------------------------

    \40\ See http://www.accessboard.gov/sec508/refresh/draft-rule2010.htm (preamble at 75 FR 13457, 13468 (March 22, 2010) and 
http://www.access-board.gov/sec508/refresh/draft-rule.htm (preamble 
at 76 FR 76640, 76646 (December 8, 2011).
    \41\ See http://www.w3.org/TR/WCAG20/.
    \42\ See Voluntary Voting System Guidelines, http://www.eac.gov/testing_and_certification/voluntary_voting_system_guidelines.aspx.
---------------------------------------------------------------------------

    DOT Decision: In collaboration with the Access Board and the 
Department of Justice, the Department reviewed and considered the VVSG 
guidelines and certain WCAG 2.0 success criteria in developing the 
proposed standard. We also considered each of the specific suggestions 
for modifying our proposed design specifications offered by the 
commenters and have adopted a number of them after weighing the cost 
and benefit as well as the present need based on functions automated 
airport kiosks currently perform.
    In deciding whether or not to accept a suggested change, we also 
considered the fact that the Access Board is now engaged in rulemakings 
to revise the guidelines and standards on which our proposed kiosk 
standard is based and is expected to issue updated guidelines within 
the next few years. We did not accept some recommended changes for 
functions typically not performed by airport kiosks or that the Access 
Board is studying for possible inclusion in their revised standard 
(e.g., control of animation and seizure flash threshold for visual 
outputs).
    Regarding the flight-related services automated airport kiosks 
currently make available, the Department believes that the standard we 
are now adopting is entirely adequate to ensure independent access and 
use by the vast majority of individuals with disabilities. The standard 
will apply to new kiosks installed three years or more after the 
effective date and will not apply to any kiosks installed prior to that 
date. We will continue to monitor automated airport kiosks and the 
accessibility of any new functions not currently available as the 
technology of self-service transaction machines evolves. We will also 
review the new guidelines and standards issued by the Access Board and 
the Department of Justice to determine whether improvements to the 
section 707 and section 508 specifications warrant further change to 
the DOT airport kiosk standard in the future. Insofar as the Department 
modifies its standard in the future to address new developments in 
kiosk technology, the revised standard will apply to new or replacement 
kiosk orders only and will not apply retroactively to any equipment 
that complies with this standard.

Operable Parts

    The Department sought comment on certain characteristics of 
operable parts, including the following:
    Identification--The Department proposed to require that the 
operable parts on new automated airport kiosks be tactilely discernible 
by users to avoid unintentional activation and requested comment 
regarding the cost of meeting the requirement.
    Timing--We proposed that when a timed response is required, the 
user be alerted by sound or touch to indicate that more time is needed. 
We also wanted to know whether timeouts present barriers to using 
automated airport kiosks as well as the costs and potential 
difficulties associated with meeting the requirement.
    Status Indicators--We asked whether locking or toggle controls 
should be discernible visually as well as by touch or sound.
    Comments: The Trace Center offered a number of comments for 
substantially reorganizing and expanding the scope of this section so 
that the provisions apply to the overall operation of the kiosk rather 
than to its operable parts alone. They also suggested incorporating the 
provisions of section 309 of the 2010 ADA standards word for word 
rather than by reference, as well as new requirements to allow at least 
one mode of operation that is usable without body contact, without 
speech, or without gestures. Regarding the timing provision, they 
requested that a visual alert be added and that the time limit be 
extendable at least ten times. In addition, they proposed to include a 
new ``key repeat'' provision, modify the color provision to further 
accommodate individuals with color blindness, and expand the scope of 
the operable parts provisions to include the provision of touch screen 
controls as well as tactilely discernible controls. The carrier 
associations suggested that making operable parts tactilely discernible 
and integrating a user prompt for timeouts would require substantial 
time to design and test and thus would require a compliance date of 36 
months after the rule's effective date. ITI indicated that timeouts, 
whether in voice or visual mode, are a standard feature of applications 
today. They also stated that there should be no requirement for the 
status of locking or toggle controls to be discernible visually, or by 
sound or touch. In their view, such a requirement would be unnecessary 
since most host system applications are not case sensitive or middle 
layer applications convert and send inputs to the host in the 
appropriate format.
    DOT Decision: The Department has accepted the suggestion to add a 
visual alert requirement to the timing provision and a requirement for 
visually discernible status indicators on all locking or toggle 
controls or keys. We have included as examples of toggle controls the 
Caps Lock and Num Lock keys. In light of current automated airport 
kiosk functions and operation, the Department has decided that the 
provisions of the operable parts section as we proposed them are 
adequate without further change. After the Access Board finalizes its 
rulemakings revising the section 508 rules and the ADA and ABA 
Accessibility Guidelines to address kiosks other than ATMs and fare 
machines, the Department will consider whether further changes 
addressing the issues raised by the Trace Center should be incorporated 
in the operable parts provisions for future orders.

Privacy

    The Department proposed that automated airport kiosks must provide 
the same degree of privacy to all individuals for inputs and outputs.
    Comments: The Trace Center suggested that we add an advisory to 
provide users of speech output the option to blank the screen for 
enhanced privacy. They explained that the screen should not blank 
automatically when the speech output mode is activated since many users 
may want to use both speech and visual interfaces simultaneously. NFB 
suggested that the screen blank out automatically upon activation of 
speech output.
    DOT Decision: The Department has modified the proposal in line with 
the Trace Center suggestion to require that

[[Page 67904]]

when an option is provided to blank the screen in the speech output 
mode, the screen must blank when activated by the user, not 
automatically.

Outputs

    The Department sought comment on certain characteristics of 
outputs, including the following:
    Speech Output--The Department proposed to require that speech 
output be delivered through an industry-standard connector or a handset 
and asked whether delivering speech output through either of these 
means should be required. We wanted to know whether it would be 
sufficient to require volume control for the automated airport kiosk's 
speaker only without requiring any other mode of voice output and about 
any privacy concerns with a speaker-only arrangement. We also asked 
about the costs associated with providing a handset or industry 
standard connector and about the costs/benefits of requiring a speaker 
only, without a handset or headset output capability. We inquired about 
wireless technology to allow people with disabilities to use their own 
Bluetooth enabled devices in lieu of requiring the kiosk itself to have 
a handset or headset connector, and if so, whether it should be 
required.
    Volume Control--We asked whether the dB amplification gain 
specified for speakers was sufficient and about the need for volume 
control capability for outputs going to headphones or other assistive 
hearing devices.
    Tickets and Boarding Passes--Regarding transactional outputs (e.g., 
receipts, tickets), we proposed to require that the speech output must 
include all information necessary to complete or verify the 
transaction. We listed certain types of information accompanying 
transactions that must be provided in audible format, as well as 
certain supplemental information that need not be, and whether any 
other information should be required to be audible.
    Comments: Speech Output--In descending order of preference, 
commenters supported supplying standard headset connectors, handsets, 
or speakers as the method for delivering speech output. In response to 
our question whether requiring volume control for the automated airport 
kiosk's speaker alone without requiring any other mode of voice output, 
ITI stated that it would not recommend working with a speaker-only 
solution. They observed that along with privacy concerns, the ambient 
noise levels in airports would present difficulties. The Trace Center, 
ITI, and a number of individual commenters supported a private 
listening option and recommended that a standard connector be provided 
for greater privacy during transactions and to allow individuals with 
hearing impairments the use of assistive listening technologies (e.g., 
audio loops). The carrier associations said all three methods should be 
allowed, in addition to any other equivalent alternative a carrier or 
vendor identifies. The Trace Center commented that handsets should be 
in addition to, not instead of, a headphone connector and should be 
hearing aid compatible if included. Regarding the cost of providing 
headset connectors and handsets, ITI said the costs will depend on 
whether volume control can be implemented via software or hardware, 
whether a physical volume control is required, and whether volume will 
need to be at distinct levels or at a continuous level. Carrier 
associations cited various reasons for believing that there would be 
high costs associated with providing either handsets or headset 
connectors, (e.g., need to keep a large supply of handsets on hand for 
sanitary reasons or to provide headsets for passengers who forgot their 
own).
    Regarding wireless technologies for receiving speech outputs, the 
Trace Center supported the wireless concept as an alternative output 
method, but noted that a Bluetooth device must be ``paired'' with the 
kiosk to ensure user privacy, a process that is too complicated for 
many users and usually requires sight. ITI observed that Bluetooth 
technology is not widely used in public spaces and that it would not 
advocate a requirement for the use of Bluetooth at airport kiosks.
    Regarding speech outputs associated with characters such as 
personal identification numbers, both the Trace Center and NFB 
suggested that rather than providing a beep tone, which typically 
indicates an input error, it would be better to provide the masking 
characters as speech (e.g., read the word ``asterisk'' when the 
character ``*'' is displayed onscreen).
    Volume Control--In response to our question about the adequacy of 
the proposed dB amplification levels, the Trace Center indicated that 
the specified volumes for external speakers was sufficient and noted 
that absolute volume for headphones cannot be specified due to 
differences in headphone equipment.
    Receipts, Tickets, and Boarding Passes--The Trace Center advocated 
for requiring speech output upon request for certain types of legally 
binding supplemental information (e.g., contracts of carriage, 
applicable fare rules) accompanying a transaction, unless the 
information was available to the user in an accessible format at an 
earlier time (e.g., when the ticket was purchased online).
    Other Suggested Changes--The Trace Center also proposed changes to 
require automatic cutoff of an external speaker when a plug is inserted 
into the headset connector. There were two new requirements proposed by 
the Trace Center related to outputs: one dealing with control over 
animation (i.e., a mode of operation to pause, stop, or hide moving, 
blinking, or scrolling if information starts automatically, lasts for 
more than five seconds, and is presented in parallel with other 
content) and one to prohibit lights and displays from flashing more 
than three times in any one second period, unless the flashing does not 
violate the general flash or red flash thresholds. The latter proposed 
requirement is derived from a WCAG 2.0 success criterion on seizure 
flash thresholds.\43\
---------------------------------------------------------------------------

    \43\ For further explanation of general flash and red flash 
thresholds, see http://www.w3.org/TR/UNDERSTANDING-WCAG20/seizure-does-not-violate.html.
---------------------------------------------------------------------------

    DOT Decision: Speech Output--The Department concurs that a headset 
jack potentially offers more flexibility to users in accessing a kiosk, 
as well as greater privacy. At the same time, the volume control 
requirements for both private listening and external speaker will allow 
adequate access to speech outputs without limiting the design options 
and cost flexibility. Therefore, this rule allows carriers to choose 
whether their accessible automated kiosks will deliver speech outputs 
via a headset jack, a handset, or a speaker. We have also decided not 
to add a provision to require Bluetooth technology at this time due to 
security concerns regarding its use in public spaces and usability 
issues associated with pairing Bluetooth devices with airport kiosks.
    Regarding the speech output for masking characters, the Department 
is requiring that the masking characters be spoken (``*'' spoken as 
``asterisk'') rather than presented as beep tones or speech 
representing the concealed information.
    Receipts, Tickets, and Boarding Passes--The Department has not 
accepted the suggestion to require that legally binding information be 
provided in audio format upon request because in our view the cost 
outweighs the benefit. We do not believe the burden to carriers of 
providing complex and lengthy documentation in speech format at an 
automated kiosk would be balanced by a corresponding benefit to people 
with disabilities, particularly when the information is supplemental 
(not essential to the transaction itself) and

[[Page 67905]]

can be obtained by requesting it from an agent at the airport or 
online.
    Other Suggested Changes--The Department has not accepted the 
suggested provision to require automatic cut-off of the external 
speaker when a headset is plugged into the connector. It is our 
understanding that this automatic cut-off is already a standard feature 
of devices equipped with connectors. While we believe that equipping 
handsets with magnetic coupling to hearing aids may be desirable, the 
volume control requirements for both handsets and headset connector 
will still provide access and allow greater design flexibility. 
Regarding the recommended provisions for animation control and seizure 
flash thresholds, we believe they have merit but are premature at this 
time. These provisions are appropriate and necessary for video clips 
and other animated material that typically are not available on today's 
automated airport kiosks. Therefore, the Department has decided that it 
will reconsider the need for such provisions, if airport kiosk 
functionality evolves to include animated content in the future.

Inputs

    The Department sought public comment on whether there was a need to 
revise the proposed requirement for tactilely discernible input 
controls to allow for accessible touch screen technology such as that 
used by Apple's iPhone and Google's Android products. We asked how 
familiar the community of individuals with visual impairments is with 
accessible touch screen technology. We also asked about alphabetic and 
numeric keypad arrangements and whether the specified function keys and 
identification symbols were sufficient for the types of operations 
typically performed on airport kiosks functions.
    Comments: Tactilely Discernible Input Controls--The carrier 
associations and ITI support allowing either tactilely discernible 
controls or accessible touch screen navigation as methods of input. The 
Trace Center believes that both methods should be allowed, but that if 
gestures on a surface or in three-dimensional space are allowed there 
also must be some other method involving tactilely locatable controls. 
The Trace Center observed that gestures can work well for people who 
are technically savvy but are not easy to use for many people with 
disabilities--especially those with manual dexterity disabilities.
    Keypad Controls--The Trace Center made a number of suggestions to 
improve tactile controls, the layout of alpha and numeric keys on key 
pads (use of QWERTY arrangement), and the use of tactile symbols for 
distinguishing function keys on non-ATM style keypads. They also 
suggested adding a provision to specify the arrangement of a virtual 
onscreen keyboard alphabetically in one mode to facilitate navigation 
using arrow keys and voice output. ITI pointed out that airport kiosks 
are not usually equipped with keypads and the new standard should not 
assume their presence on an accessible kiosk. They further indicated 
that keypad arrangements, whether onscreen or external, should not be 
specified due to text-to-speech software that reads out each screen 
element.
    DOT Decision: The Department has accepted the Trace Center's 
suggestion to modify the provision on tactile controls to state that 
``at least one input control that is tactilely discernible without 
activation shall be provided for each function. We also accepted their 
suggestions to require that alphabetic keys on a keypad to be arranged 
in a QWERTY keyboard layout with the ``F'' and ``J'' keys tactilely 
distinct from the other keys, as well as an option for numeric keys to 
be arranged in a row above the alphabetic keys on a QWERTY keyboard. We 
did not add any new provisions for enhancing the onscreen navigation of 
virtual keyboards for those with visual impairments but will consider 
doing so in the future if virtual keyboards are integrated into 
automated airport kiosks and there is a need to address their usability 
by people with disabilities.

Display Screens

    The Department did not ask specific questions but received a few 
comments about the proposed specifications for display screens.
    Comments: The Trace Center suggested that we change the requirement 
for display screens such that they must not only be visible, but also 
readable, from a point located 40 inches (1015 mm) above the center of 
the clear floor space in front of the automated kiosk. Several 
commenters requested that the language concerning the required contrast 
of characters with their background on visual displays be changed from 
``either light characters on a dark background or dark characters on a 
light background'' to ``with a minimum luminosity-contrast-ratio of 
3:1.'' Trace Center requested that we require a higher contrast ratio 
of 4.5:1 for characters that are less than 14-point.
    DOT Decision: We have accepted the suggestion to require display 
screen characters and background to have a minimum luminosity-contrast-
ratio of 3:1. This ratio is consistent with that specified in the WCAG 
2.0 Success Criteria 1.4.3 on minimum contrast. Combined with the 
requirement for characters on the display screen to be in sans serif 
font and at least 3/16 inch (4.8 mm) high (based on the uppercase 
letter ``I''), the 3:1 contrast ratio will satisfy the success 
criterion at Level AA. (For further clarification of this requirement 
see the WCAG 2.0 definitions for ``contrast ratio'' and ``relative 
luminance'' found at: http://www.w3.org/TR/WCAG20/#contrast-ratiodef 
and http://www.w3.org/TR/WCAG20/#relativeluminancedef.)
    Regarding display screen visibility, we have not accepted the 
suggestion to require display screens to be readable from a point 
located 40 inches above the center of the clear floor space in front of 
the kiosk. The proposed requirement that the display screen be visible 
from a point located 40 inches above the center of the clear floor 
space essentially means that the display screen must not be obscured 
from view at that height. A requirement that the display screen be 
readable from that height would not be practicable since 
``readability'' is a function of many factors, including screen 
characteristics (e.g., font size), ambient conditions (e.g., lighting), 
and each potential reader's visual acuity when viewing the screen at a 
given distance from the eye.

Biometrics

    In the SNPRM, we included a provision stating that biometrics may 
be used as the only means for user identification or control where at 
least two options using different biological characteristics are 
provided. We requested comment on this provision as well as the costs 
associated with implementing it.
    Comments: ITI opposed any requirement for more than one biometric 
option, saying the cost of more than one biometric device per kiosk 
would be prohibitive. They recommended an alternative identification 
method be used such as a personal identification number (PIN) for those 
who cannot use the biometric option provided.
    DOT Decision: The final provision does not require that more than 
one biometric identification option be used unless the only method of 
identification the kiosk provides is biometric. The kiosk provider may 
also use a non-biometric alternative such as a PIN in lieu of a second 
biometric identifier using a different biological characteristic. Our 
proposed provision provided alternatives that are accessible for 
virtually all individuals with a

[[Page 67906]]

disability without imposing unreasonable cost on kiosk providers; 
therefore, we are finalizing the proposed requirement.

Other Comments on the Technical Standard

    Several disability organizations' comments urged the Department to 
require carriers and airports to consult with individuals with 
disabilities on the design and usability of their kiosks that meet the 
technical standard. Although the standard we are adopting consists of 
well-established and tested design specifications, the Department 
nonetheless encourages carriers and airports to consult with disability 
advocacy organizations on the usability of their accessible kiosk 
during the test phase and to consider adopting any feasible suggestions 
for improving its usability and accessibility.
3. Implementation Schedule and Alternatives
Compliance Dates for New Kiosk Orders and Airline/Airport Agreements
    The SNPRM: The Department proposed to require carriers that own, 
lease, or control automated airport kiosks or jointly own, lease, or 
control shared-use automated kiosks with an airport operator at U.S. 
airports with 10,000 or more annual enplanements to ensure that new 
kiosks ordered more than 60 days after the effective date of the rule 
meet the proposed accessibility standard. We proposed to require the 
same of operators of U.S. airports having 10,000 or more annual 
enplanements that jointly own, lease, or control shared-use automated 
kiosks with airlines. The Department asked whether setting the 
effective date to begin ordering accessible kiosks starting 60 days 
after the effective date of the rule was too long or too short and what 
would be a reasonable amount of implementation time for the ordering 
provision. Important to our decision about the compliance time frame is 
the ability of the manufacturing sector to meet the demand for 
accessible automated airport kiosks. Consequently, we asked a number of 
questions about the capabilities of airport kiosk manufacturers to 
market accessible models in time to meet the proposed time frame. We 
asked about the number of large and small manufacturers that currently 
make automated airport kiosks and whether any currently market 
accessible models. Assuming that some lead-time would be needed to 
develop and start manufacturing an accessible model that meets the 
required standard, we asked whether carriers could meet the 60-day 
ordering deadline, and if not, how much time would be needed to have a 
product ready to market. We also asked about the competitive impact of 
the ordering deadline on small manufacturers given the resources of 
larger manufacturers to meet demand more quickly.
    We explicitly proposed not to require retrofitting kiosks. For both 
carriers and airports that jointly own, lease, or control shared-use 
automated kiosks, we proposed to require that they enter into written, 
signed agreements allocating their respective responsibilities for 
ensuring compliance with the kiosk accessibility requirements. We asked 
whether carriers and airport operators should have more than 60 days 
after the effective date of the rule to enter into agreements with 
airport operators concerning compliance with the kiosk accessibility 
requirements, and if so, what would be a reasonable amount of time.
    Comments: The carrier associations recommended a delay of up to 36 
months after the rule's effective date to implement the ordering 
provision for new accessible kiosks. The carrier associations that 
commented jointly estimated it would take as long as one year for 
manufacturers to develop compliant prototype kiosks, an additional four 
to six months to procure the kiosk hardware, up to one year for 
carriers to develop compliant software applications, and six months to 
install and test the software. Individual carriers recommended lesser 
delays of one to two years for implementing the ordering provision. The 
American Aviation Institute (AAI) recommended at least two years from 
the rule's effective date to begin implementing the ordering provision.
    In addition to a longer delay in the effective date of the ordering 
provision, most industry commenters recommended that only a percentage 
of new kiosks ordered be required to comply with the accessibility 
standard. The IATA Common Use Working Group stated that the majority of 
shared-use airport kiosks follow the international IATA (RP1706c) and 
ATA (30.100) Common Use Self-Service (CUSS) Standards. They suggested 
that at least one year would be needed to modify and test the standards 
for new accessible hardware, updated platform software, and new 
software interfaces required to support airline software applications. 
Development of airline application software and pilot testing with 
integration software could require up to another year. ITI recommended 
a delay of 18-36 months from the rule's effective date, which from 
their perspective would allow a reasonable amount of time for product 
development and manufacturing. They emphasized the importance of 
adequate time to design, engineer, and test the accessibility features 
to ensure they function effectively, noting that once product 
development is completed, inventory and delivery should take 90-120 
days. ITI also cautioned that certification, field trials, and 
controlled pilots could extend the timeline further, if issues arise 
with third parties that are out of the kiosk manufacturer's control. 
They did not support recommendations that the Department require only a 
portion of new kiosks ordered to be accessible.
    Disability community commenters called for reducing the delay after 
the rule's effective date for the new order requirement. United Spinal 
and CCD both recommended 30 days after the rule's effective date; BBI 
recommended no delay in the effective date of new order provision and 
that it coincide with the rule's effective date. The Trace Center, 
recognizing that a longer lead time would likely be needed, suggested 
that the Department finalize the technical standard and provide it to 
interested parties while the final rule is still under review by the 
Office of Management and Budget (OMB). In effect, the Trace Center 
recommended that the Department give vendors and other organizations 
advance notice of the technical standard before the final rule is 
published so that they could develop and test an accessible kiosk 
prototype before the actual effective date of the rule. They further 
recommended that the final rule require that accessible kiosks begin to 
be installed in airports shortly after the final rule is published. As 
for airports, Denver International Airport concurred with the 
Department's proposed effective date of 60 days for new kiosk orders 
while San Francisco International Airport suggested extending the 
compliance date to six months after the rule's effective date to allow 
enough time to complete the airport/airline agreements for shared-use 
automated kiosks and prepare the technical specifications.
    We received very few public comments addressing our questions about 
the capabilities of the manufacturing sector, none of which came from 
manufacturers of airport kiosks. However, our contractor preparing the 
regulatory evaluation contacted a number of manufacturers who confirmed 
in part what the industry commenters had told us about the longer lead-
time required to develop and produce compliant hardware and

[[Page 67907]]

software applications. They explained that airlines with proprietary 
kiosks and the in-house capability to program their own software 
applications would need less time to comply than airlines that contract 
out software development. Manufacturers that produce shared-use kiosks 
confirmed the complex development scenario described by the carrier 
associations, including an initial phase to revise and test the 
international technical standard that applies to such kiosks. They 
confirmed that for shared-use kiosks, airports typically procure the 
hardware and platform software while the airlines must each develop and 
certify their own compliant software application, which then must be 
integrated and tested on the hardware--steps that could extend the 
compliance time frame. The manufacturers also corroborated ITI's 
observations that requiring only a portion of new kiosks to be 
accessible would not substantially reduce the development costs for 
accessible kiosks.
    DOT Decision: The Department has weighed all the available 
information and is persuaded that a compliance deadline of 60 days from 
the effective date of the final rule for new kiosk orders is not 
feasible. Under this rule, airlines and airports have 36 months after 
the rule's effective date to begin installing accessible kiosks at U.S. 
airports. There are no automated airport kiosks presently on the market 
that meet entire set of the accessibility requirements mandated by this 
rule, and discussions with kiosk manufacturers confirm airline 
assertions that it could take a substantial amount of time to have 
kiosks with fully compliant hardware and platform software developed, 
tested, and ready to market for sale. Research conducted by our 
contractor indicates that the amount of lead time required to develop 
and produce compliant hardware and software applications will vary 
significantly depending on whether the kiosks are proprietary or 
shared-use and whether their capabilities for software application 
development are in-house or contracted. Airlines with proprietary 
kiosks and immediate access to applications programming capabilities 
may be able to develop and deploy compliant kiosks within 18 to 24 
months. For carriers that use shared-use kiosks, however, it may take 
more than two years for accessible kiosks to be ready for installation.
    The IATA Common Use Working Group indicated that it would take up 
to one year to revise the applicable standards for shared use airport 
kiosks, with additional time needed to develop and test the kiosk 
hardware and software components for shared-use automated kiosks. ITI 
and several other sources have indicated that the current marketplace 
for developers of shared-use kiosk software is limited to a few firms. 
This suggests that carriers and airports could also face delays in 
securing the requisite technical resources. In addition, software 
applications for shared-use kiosks must be certified, which the IATA 
Working Group indicates can add another 3 months to the time required 
to prepare the product for deployment. Apart from the above technical 
considerations, a compliance time frame of less than three years could 
also result in above-market pricing, since fewer vendors will be able 
to develop and test compliant kiosks in less time.
    The Trace Center's recommendation that the Department ``finalize[], 
publish[] and provide[] to all interested parties [the accessibility 
standard] in advance while the provisions make their way through the 
Office of Management and Budget . . .'' might accelerate the 
availability of accessible kiosks, but would not be consistent with the 
requirements of Executive Order 12866 and the Administrative Procedure 
Act. Executive Order 12866 requires Federal agencies to submit the 
final rule of any significant agency rulemaking to OMB prior to its 
publication in the Federal Register, unless OMB waives its review.\44\ 
It also prohibits agencies from otherwise issuing to the public any 
regulatory action subject to OMB review prior to OMB completing or 
waiving its review.\45\ The Administrative Procedure Act specifically 
provides that individuals ``may not in any manner be required to resort 
to, or be adversely affected by, a matter required to be published in 
the Federal Register and not so published.'' \46\ This means the 
Department can neither finalize the accessibility standard prior to 
OMB's completion of its review nor compel carriers or airports to begin 
implementing the standard prior to publication of the final rule in the 
Federal Register.
---------------------------------------------------------------------------

    \44\ See Exec. Order 12,866, 58 51735, 51741 (October 4, 1993).
    \45\ See Exec. Order 12,866, 58 FR No. 140 51735, 51743 (October 
4, 1993).
    \46\ See 5 U.S.C. 552(a)(1).
---------------------------------------------------------------------------

    In light of these factors, the Department has decided to extend the 
compliance time frame for installing new kiosks at U.S. airports to 
three years after the rule's effective date. Meeting this deadline will 
require some concurrent effort in the development of compliant hardware 
and software applications. Carriers and airports will need to be active 
participants in the IATA standards development and approval process to 
finalize a standard within a time frame that supports the development, 
prototyping, and marketing of accessible kiosks and software 
applications by the compliance deadline. At the same time, the three-
year lead time before the provision on new kiosk installations becomes 
effective will give manufacturers and programmers not presently engaged 
in developing accessible kiosks enough time to gear up to participate 
in the market. We believe this broadening of the supplier base can be 
expected to mitigate the incremental costs of acquiring and installing 
accessible kiosks. Based on the input our contractors received from 
manufacturers, shortening the compliance deadline may limit the number 
of firms that would develop and market compliant hardware and software 
applications. In addition, due to the amount of technical coordination 
between airlines and airports necessary to develop accessible shared-
use kiosks and their reliance on third-party contractors to develop and 
test compliant platform and application software, many airports and 
carriers would not be able to meet a shorter compliance deadline. 
Ultimately, the Department believes that passengers with disabilities 
will benefit significantly from providing kiosk manufacturers and 
application developers with a longer period to develop, prototype, 
test, and deploy kiosks that effectively meet the required 
accessibility standard.
Implementation Alternatives
    The SNPRM: The Department proposed that all new kiosks ordered 
after the order deadline must be accessible. We asked for comment on 
whether a phasing in period over 10 years, gradually increasing the 
percentage of automated airport kiosk orders required to be accessible, 
would meaningfully reduce the cost of implementing the accessibility 
standard. We also asked whether we should require less than 100 percent 
of new airport kiosks to be accessible, and if so, what percentage of 
accessible kiosks we should require in each location at the airport. We 
noted that if only a percentage of kiosks were required to be 
accessible, the wait time for passengers who need an accessible 
automated kiosk could be significantly longer than for non-disabled 
passengers unless they were given some kind of priority access to those 
machines. We observed that any mandate for priority access to 
accessible kiosks could also carry the

[[Page 67908]]

potential of stigmatizing and segregating those passengers.
    Comments: ITI commented that from a development and manufacturing 
perspective, the timelines and resources needed to develop and 
incorporate ``new accessibility solutions will be the same, regardless 
of whether all, or a percentage of, kiosks are required to comply with 
the new rules.'' They added that from their perspective there also 
would be no meaningful cost reduction from a gradual phasing in of 
accessible kiosks. The carrier associations nonetheless opposed a 
requirement for all airport kiosks to be accessible, arguing that this 
approach is inconsistent with other Part 382 requirements (e.g., 
movable armrests are only required on fifty percent of aircraft aisle 
seats, one accessible lavatory on a twin aisle aircraft) and costly. 
They urged the Department to consider two compliance alternatives, each 
having a compliance date of 36 months after the effective date of the 
final rule: (1) Require ten percent of future kiosks ordered to include 
accessible features or, in the alternative, (2) require one accessible 
kiosk per passenger check in area at an airport. From their point of 
view, a reduced number of accessible kiosks will have no significant 
impact on passenger wait times since passengers with a disability who 
self-identify would be given priority to use an accessible kiosk, 
reducing their wait to the time it would take for someone already using 
the accessible kiosk to finish their transaction. In the event more 
than one passenger needs to use the accessible kiosk at the same time, 
agents will be available to assist. The carrier associations believe 
this approach will provide accessible kiosks to those who need and will 
use them, while better balancing the costs with the benefits. Air New 
Zealand made a similar argument, suggesting that requiring only 25 
percent of airport kiosks to be accessible, in combination with 
priority access for passengers with disabilities, will provide 
passengers with disabilities the independent access they want and limit 
the additional financial burden to carriers. Spirit Airlines proposed 
that the Department require only 50 percent of new kiosks ordered to be 
accessible, until a total of 25 percent of airport kiosks are 
accessible. The San Francisco International Airport, on the other hand, 
took the position that the Department should require 100 percent of 
kiosks to be accessible by a date to be determined after taking 
manufacturing capabilities and other factors into consideration. They 
saw this approach as the best way to avoid potential problems for 
airports having to maintain both accessible and inaccessible kiosk 
models.
    DOT Decision: We are requiring that all new kiosks installed at 
U.S. airports three years or more after the effective date of the rule 
be accessible until at least 25 percent of kiosks in each location at 
the airport are accessible. We agree with the comments of Air New 
Zealand that having 25 percent of airport kiosks accessible (as opposed 
to more than 25 percent), in combination with priority access for 
passengers with disabilities to those kiosks, will enable passengers 
with disabilities to independently use airport kiosks and limit the 
additional costs to carriers and airports associated with acquiring and 
installing accessible kiosks. Nonetheless, the Department intends to 
monitor implementation of this rule to determine whether delay in 
obtaining access to an accessible kiosk is a significant problem for 
passengers with disabilities, despite the priority access provision, 
especially during peak demand times. If so, we may issue further 
regulations to address the matter. Of course, airlines and airports may 
always choose to make more than 25 percent of airport kiosks 
accessible. As noted by San Francisco International Airport, one 
advantage of making 100 percent of airport kiosks accessible is 
avoidance of the potential costs associated with maintaining and 
supporting both accessible and inaccessible kiosk models.
    As we stated earlier, the requirement for at least 25 percent of 
accessible automated airport kiosks at each location in U.S. airports 
with 10,000 or more enplanements means that at least 25 percent of 
kiosks provided in each cluster of kiosks and all stand-alone kiosks at 
the airport must be accessible. For example, in a location where five 
kiosks are situated in close proximity to one another, such as near a 
ticket counter, at least two of those kiosks must be accessible; in 
locations where a single kiosk is provided which is not in close 
proximity to another kiosk, the single kiosk must be accessible. In 
addition, when the kiosks provided in a location at the airport perform 
more than one function (e.g., print boarding passes/bag tags, accept 
payment for flight amenities such as seating upgrades/meals/WiFi 
access, rebook tickets, etc.), the accessible kiosks must provide all 
the same functions as the inaccessible kiosks in that location. These 
days many kiosks provide a broad range of functionality beyond simple 
check-in. Kiosks that perform different functions are considered to be 
of different types. Accessible automated airport kiosks must provide 
all the functions provided to customers at that location at all times. 
For example, it is unacceptable for the accessible automated airport 
kiosks at a particular location to only enable passengers to check-in 
and print out boarding passes while the inaccessible automated airport 
kiosks at that location also enable passengers to select or change 
seating, upgrade class of travel, change to an earlier or later flight, 
generate baggage tags and purchase inflight Wi-Fi sessions or other 
ancillary services. Whatever functions are available on inaccessible 
automated airport kiosks must also be available to customers using 
accessible airport kiosks at the same location. As noted above, the 25 
percent requirement also applies to each location at the airport where 
kiosks are installed. It is not sufficient for a carrier or an airport 
to merely comply with the percentage for the airport as a whole, or 
even for a given terminal building if there are kiosks in more than one 
location in the terminal.
    Based on data from commenters who estimated airport kiosk life 
spans, we estimate that the typical kiosk life span is no more than 
five to seven years. We believe it is reasonable to conclude that well 
before the end of the 10-year period after the effective date of this 
rule virtually all airport kiosks will have reached the end of their 
life span. As such, a total of at least 25 percent of airport kiosks in 
each location at a U.S. airport should have been replaced with an 
accessible kiosk by then. To ensure this outcome, we have added 
requirements that both carriers and airport operators must ensure that 
at least 25 percent of automated kiosk provided in each location at the 
airport must be accessible by ten years after the effective date of the 
rule. Accessible kiosks provided in each location at the airport must 
provide all the same functions as the inaccessible kiosks in that 
location.

Retrofitting Kiosks

    The SNPRM: In proposing to require that only new kiosks ordered 
after a certain date be accessible, we had also considered proposing to 
require carriers to either retrofit or replace a certain percentage or 
number of airport kiosks (e.g., retrofit 25 percent of existing kiosks 
or replace at least one kiosk) in each location at the airport by a 
certain date. We ultimately decided against proposing either option, as 
the available information suggests that these approaches would 
significantly increase the cost to carriers. Nonetheless, we also had 
concerns that the transition time for an accessible kiosk to become 
available

[[Page 67909]]

at each location in an airport could be more than a decade. The best 
life cycle estimates for airport kiosks available to us when the 
September 2011 SNPRM was published ranged from seven to ten years. We 
therefore asked for comment on the accuracy of our life cycle estimate 
and whether the Department should require carriers to retrofit or 
replace a certain portion of their kiosks to meet the accessibility 
standards until all automated airport kiosks are accessible.
    Comments: Most disability advocacy organizations, individual 
commenters who self-identified as having a disability, and some 
commenters from the general public supported an interim requirement to 
retrofit some percentage of existing kiosks to accelerate the 
availability of accessible kiosks at all locations in an airport. The 
Trace Center, NFB, and BBI supported a phased retrofit schedule such 
that 25 percent of all deployed kiosks must be accessible by 1 year, 50 
percent by 3 years, 75 percent by 5 years, and 100 percent by 7 years 
after the effective date. NCIL advocated a more accelerated approach 
for retrofitting that would have 100 percent of deployed kiosks 
accessible by five years after the effective date. PVA urged the 
Department to require that any existing kiosk that is altered 
(voluntarily modified or refurbished, including any software 
modification or upgrade) must be retrofitted to meet the accessibility 
standard. The Trace Center conceded that retrofitting ``can be 
significantly more expensive than deploying new accessible kiosks'' due 
to loss of the lower cost production environment and economies of 
scale, as well as the additional costs of taking kiosks out of service 
and the actual cost to modify the kiosk. They acknowledged that even 
activating dormant accessibility features (e.g., headset connector) can 
be a significant undertaking that would take some lead-time to 
complete.
    The San Francisco International Airport also recommended 
retrofitting some existing kiosks as a reasonable alternative to 
requiring only that new kiosks ordered after the effective date be 
accessible. They reasoned that if only new kiosks must meet the 
accessibility requirements, it would create an adverse incentive for 
airlines to maintain older kiosks beyond their useful life and delay 
full accessibility for many years. They thought it likely that the 
airport industry would be ready to support immediate retrofits.
    Carriers and the carrier associations opposed any kind of 
retrofitting. They added that many kiosk models could not be 
retrofitted because they are near the end of their life cycle and are 
no longer supported by the manufacturer. The IATA CUSS working group 
estimated incremental costs of at least $3,000 per kiosk to retrofit to 
the DOT standard. ITI said that the costs of retrofitting an existing 
kiosk would be difficult to quantify--particularly older kiosks with 
operating systems that are not compatible with text-to-speech 
technology and may not support software needed for speech output. They 
noted that in addition to hardware costs, there would also be software 
certification costs. Several manufacturer representatives echoed these 
concerns, indicating that there are significant technical feasibility 
issues associated with retrofitting.
    DOT Decision: The Department acknowledges that a requirement to 
retrofit some percentage of kiosks to meet the accessibility standard 
would accelerate the near-term availability of accessible machines at 
airports. While more rapid near-term availability of accessible 
machines is an important objective, retrofitting is clearly an 
expensive, and in some cases, technically infeasible means to 
accomplish it. A shortened compliance timeline also runs the risk of 
insufficient testing to ensure the successful integration and error-
free operation of all the hardware and software components of 
accessible kiosks. In lieu of requiring retrofitting of existing 
kiosks, carriers and airports will be required to ensure that at least 
25 percent of automated kiosks in each location at an airport are 
accessible and that accessible kiosks provided in each location at the 
airport provide all the same functions as the inaccessible kiosks at 
that location by ten years after the rule's effective date. As 
mentioned earlier, with data from carriers and industry experts 
confirming that the typical kiosk life cycle is between five and seven 
years, we anticipate that 25 percent of kiosks in all locations at an 
airport will have been replaced with accessible models well before this 
ten-year deadline. Compliant kiosks will begin to be installed in 
locations at airports no later than 3 years after the effective date of 
this rule.
4. Identification and Maintenance
    The SNPRM: The Department proposed to require carriers and airports 
to ensure that each accessible automated kiosk they own, lease, or 
control in a location at an airport is visually and tactilely 
identifiable as such to users (e.g., an international symbol of 
accessibility affixed to the front of the device) and is maintained in 
proper working condition, until all automated kiosks in a location at 
the airport are accessible. We proposed to apply these requirements to 
airlines under Part 382 and to airports under Part 27.
    Comments: The Department received a very small number of comments 
on these provisions. Two disability organizations supported the 
requirement for affixing an international accessibility symbol. Some 
commenters who did not identify as having disabilities noted that a 
requirement to affix a symbol or a sign indicating that a particular 
kiosk is accessible may be helpful to some individuals with 
disabilities, such as those with mobility or cognitive impairments. As 
a practical matter, these same commenters noted that for users with 
visual impairments, receiving guidance from airline personnel to an 
accessible kiosk made more sense than affixing an accessibility symbol 
they cannot see and which they could not touch until physically in 
front of the machine. Despite such observations, there were no comments 
opposing these specific provisions.
    DOT Decision: The Department views the need for accessible 
automated kiosks to be identifiable and maintained in working condition 
to be of great importance particularly since this rule does not require 
100 percent of kiosks to be accessible. Passengers with disabilities 
will experience a greater impact than other passengers when accessible 
kiosk equipment is out of order since only a portion of them will be 
required to be accessible. In assessing carrier/airport responsibility 
for accessible kiosks that are down for repair periodically during 
their service life, the Department will examine several factors on a 
case-by-case basis, including whether maintenance schedules are in 
place and followed for all kiosks owned by the carrier/airport and 
whether the maintenance schedules and policies followed for both 
accessible and inaccessible kiosks are similar. Also, kiosk locations 
at the airport will have a mix of accessible and inaccessible machines 
so there is value in requiring that accessible kiosk models carry the 
international accessibility symbol to allow passengers with a variety 
of disabilities maximum independence in locating and using an 
accessible kiosk. This requirement will help ensure that adequate 
resources are allocated to maintaining accessible kiosks, particularly 
during the first few years when there are fewer accessible models at an 
airport, for parts and technical training that may otherwise be given 
low priority. Since we received no comments opposing the provisions as 
proposed and for the other reasons mentioned above, the Department is

[[Page 67910]]

retaining these provisions in the final rule.
5. Other Issues--Federal Preemption
    The SNPRM: In the preamble of the September 2011 SNPRM, we stated 
that States are already preempted from regulating in the area of 
disability civil rights in air transportation under the Airline 
Deregulation Act, 49 U.S.C. 41713 and the ACAA, 49 U.S.C. 41705.
    Comments: In their comments on this rulemaking, NFB and NCIL both 
urged the Department to rectify what they viewed as erroneous holdings 
in two recent court cases alleging that inaccessible airline kiosks and 
Web sites constitute disability discrimination under State law.\47\ In 
both cases, the court granted the defendant airlines' motions to 
dismiss, concluding that Plaintiffs' State-based claims alleging 
disability discrimination in air transportation were preempted by the 
ACAA and the Airline Deregulation Act.\48\ Specifically NFB and NCIL 
asked the Department to use agency discretion to grant passengers with 
disabilities, who are protected against disability discrimination under 
the ACAA regulations, additional protection under other laws, such as 
the State laws at issue in the litigation, by including a saving clause 
in Part 382.\49\
---------------------------------------------------------------------------

    \47\ See Nat'l Fed'n of the Blind v. United Airlines, Inc., No. 
C 10-04816, p. 3 WHA, 2011 WL 1544524 (N.D. Cal. April 25, 2011) and 
Foley et al v. JetBlue Airways Corp., No. C 10-3882, p. 3 (N.D. Cal. 
August 3, 2011).
    \48\ See Id.
    \49\ NFB and NCIL recommended identical language for this 
provision: ``Nothing in these regulations shall be construed to 
invalidate or limit the remedies, rights, and procedures of any 
federal law or law of any state or political subdivision of any 
state or jurisdiction that provides greater or equal protection for 
the rights of individuals with disabilities than are afforded by 
these regulations.''
---------------------------------------------------------------------------

    As background, we note that in the case filed by NFB in the United 
States District Court for the Northern District of California, the 
Department of Justice filed a Statement of Interest By the United 
States reflecting the views of the Department of Transportation in 
support of United's motion to dismiss. The statement made three central 
arguments supporting Federal preemption of NFB's state claims: (1) 
Airline kiosks constitute a service that falls within the preemption 
provision of the Airline Deregulation Act; (2) the ACAA rules apply 
pervasively not only to disability discrimination in aviation 
generally, but also to the accessibility of airline kiosks 
specifically; and (3) applying a State remedy to NFB's discrimination 
claims would have the broad effect of undermining the purpose behind 
the ACAA regulations. The court agreed with the views of the United 
States, finding that NFB's claims were preempted under both the Airline 
Deregulation Act and the ACAA.\50\
---------------------------------------------------------------------------

    \50\ Nat'l Fed'n of the Blind v. United Airlines, Inc., No. C 
10-04816, p. 2-3 WHA, 2011 WL 1544524 (N.D. Cal. April 25, 2011).
---------------------------------------------------------------------------

    JetBlue's dismissal motion subsequently adopted the preemption 
arguments made in the Statement of Interest By the United States 
submitted in the United case, asserting that these views represented 
the agency judgment of the Department of Transportation.\51\ The court 
did not agree with JetBlue's argument that Web sites and kiosks are 
``services'' affecting economic deregulation or competition intended to 
fall within the scope of the Airline Deregulation Act and found that 
the plaintiffs' State law claims were not preempted by the Act. The 
court agreed, however, with JetBlue's arguments that DOT's ACAA 
regulations occupy the field of disability non-discrimination in 
aviation and preempt State law. Citing provisions in DOT's 2008 final 
ACAA rule requiring airlines to provide interim accommodations and its 
intent stated in the rule's preamble for further rulemaking on 
inaccessible kiosks and Web sites, the court held that the ACAA 
regulations specifically preempt the field of airline kiosk and Web 
site accessibility ``so as to justify the inference that Congress 
intended to exclude state law discrimination claims relating to these 
amenities.'' \52\
---------------------------------------------------------------------------

    \51\ Thomas Foley et al. v. JetBlue Airways Corp., No. C 10-
3882, p. 4 (N.D. Cal. August 3, 2011).
    \52\ Id. at 18-20.
---------------------------------------------------------------------------

    The Plaintiffs in both cases appealed the decisions to the Court of 
Appeals for the Ninth Circuit. In the NFB case, the United States filed 
an amicus curiae brief and reiterated its arguments that NFB's claims 
were both field and conflict preempted by the ACAA and expressly 
preempted by the Airline Deregulation Act.\53\ The case was argued on 
November 8, 2012. However, the Court vacated submission of the case and 
will delay its decision pending a decision by the Supreme Court in 
Northwest, Inc. et .al. v. Ginsberg, 695 F.3d 873 (9th Cir. 2012), 
cert. granted, --S. Ct. --, 2013 WL 2149802 (May 20, 2013) (No. 12-
462).\54\ The parties in the JetBlue case filed an unopposed motion to 
stay proceedings pending the court's decision in the NFB case, and the 
Court granted that motion on September 22, 2011.\55\
---------------------------------------------------------------------------

    \53\ Brief for the United States as Amicus Curiae Supporting 
Affirmance of the District Court's Judgment, Nat'l Fed'n of the 
Blind v. United Airlines, Inc., No. 11-16240 (9th Cir. Oct. 18, 
2011).
    \54\ Order, Nat'l Fed'n of the Blind v. United Airlines, No. 11-
16240 (9th Cir. May 22, 2013).
    \55\ Order, Foley, et al., v. JetBlue Airways Corp. No. 11-17128 
(9th Cir. Sept. 22, 2011).
---------------------------------------------------------------------------

    Notwithstanding the United States' position and the district 
courts' holdings of Federal field preemption under the ACAA in both 
cases, in its comments on this rulemaking, NCIL pointed to statements 
in the Congressional record that the ACAA was enacted to ensure that 
airlines eliminate all discriminatory restrictions on air travel by 
persons with disabilities not related to safety.\56\ They asserted that 
these statements concerning the ACAA are evidence that ``. . . a 
saving[s] clause permitting the operation of more protective state laws 
[was] squarely contemplated by Congress and should be preserved with a 
saving[s] clause.''
---------------------------------------------------------------------------

    \56\ See 132 Cong. Rec. S11, 784-08 (daily ed. Aug. 15, 1986) 
(statement of Sen. Dole). See also S. Rep. No. 99-400, at 2, 4 
(1986), reprinted in 1986 U.S.C.C.A.N. 2328, 2329, 2331; 132 Cong. 
Rec. S11784-08 (daily ed. Aug. 15, 1986); 132 Cong. Rec. H7057-01 
(daily ed. Sept. 17, 1986) (statement of Rep. Sundquist); S. Rep. 
No. 99-400, at 2 (1986), reprinted in 1986 U.S.C.C.A.N. 2328, 2329-
30.
---------------------------------------------------------------------------

    DOT Decision: The Department fully concurs with NCIL and NFB that 
the ACAA was enacted to eliminate discriminatory restrictions by 
airlines on air transportation for people with disabilities. We 
continue to strongly disagree, however, with the notions that Congress 
intended State and local disability non-discrimination laws applied to 
aviation to be exempt from preemption under the Airline Deregulation 
Act or to operate concurrently with the ACAA. As we outlined in the 
Statement of Interest discussed above, the Department believes that the 
concurrent operation of State and local laws would undermine certain 
central goals of both the ACAA and the Airline Deregulation Act.
    We believe that the detrimental impacts resulting from the 
concurrent operation of State/local disability non-discrimination laws 
on passengers with disabilities and on air transportation overall are 
serious and foreseeable. The saving clause advocated by NCIL and NFB 
would subject airlines to non-discrimination requirements in scores of 
State and local jurisdictions. Aside from the burden of complying with 
a patchwork of State and local disability regulations on airline 
economic activity and competition, passengers with disabilities would 
again be subject to inconsistency and uncertainty regarding the 
accommodations they can expect in air travel. Congress intended that 
the ACAA regulations apply accessibility requirements and compliance 
deadlines

[[Page 67911]]

to covered airlines uniformly. The goal was to ensure that passengers 
with disabilities would consistently receive the same accommodations 
wherever their air transportation is subject to U.S. law. This outcome 
has largely come about today due to airlines throughout the U.S. market 
being freed to focus their resources on meeting a single regulatory and 
enforcement scheme for ensuring accessibility. Carriers have not had to 
scatter their resources training employees to meet varying regulatory 
requirements for each State in which the carrier operates. It is our 
view that Congress sought to avoid these foreseeable adverse effects 
and intended the ACAA regulation to occupy the legal field in this area 
in order to maximize accessibility across the entire air transportation 
market to which the ACAA applies. Therefore, we believe the public 
interest will be best served by not adding a saving provision to Part 
382.

Regulatory Analysis and Notices

A. Executive Order 12866 (Regulatory Planning and Review), Executive 
Order 13563 (Improving Regulation and Regulatory Review), and DOT 
Regulatory Policies and Procedures

    This action has been determined to be significant under Executive 
Order 12866 and the Department of Transportation's Regulatory Policies 
and Procedures. It has been reviewed by the Office of Management and 
Budget in accordance with Executive Order 12866 (Regulatory Planning 
and Review) and Executive Order 13563 (Improving Regulation and 
Regulatory Review) and is consistent with the requirements in both 
orders. Executive Order 13563 directs agencies to propose or adopt a 
regulation only upon a reasoned determination that its benefits justify 
its costs, tailor the regulation to impose the least burden on society 
consistent with obtaining the regulatory objectives, and in choosing 
among alternative regulatory approaches, select those approaches that 
maximize net benefits. Executive Order 13563 recognizes that some 
benefits and costs are difficult to quantify and provides that, where 
appropriate and permitted by law, agencies may consider and discuss 
qualitatively values that are difficult or impossible to quantify, 
including equity, human dignity, fairness, and distributive impacts. 
This rule promotes such values by requiring the removal of barriers to 
equal access to air transportation information and services for 
passengers with disabilities.
    In the Department's view, the non-quantifiable benefits of kiosk 
accessibility, which the tables below do not reflect, are wholly 
consistent with the ACAA's mandate to eliminate discrimination against 
individuals with disabilities in air transportation. They include the 
increased ability of individuals with disabilities to independently 
access and use with equal convenience and privacy, and without 
stigmatization, the same air transportation information and services 
available to individuals without disabilities. Specific non-
quantifiable benefits associated with the kiosk accessibility 
requirements also include an enhanced sense of inclusion for travelers 
with vision or mobility disabilities, as well as a decrease in the 
stigma of special treatment at the ticket counter and in their overall 
waiting time to check-in. Having a choice of check-in options (e.g., 
either the automated kiosk or the check-in counter), depending on their 
anticipated transaction time or personal preference also has value to 
many travelers with disabilities, even if its monetary value cannot be 
quantified. The availability of accessible kiosks will also reduce 
waiting times at ticket counters for travelers without disabilities who 
are required to or choose to use the airline ticket counters for ticket 
purchase or check-in and free customer service agents from routine 
check-in and seat assignments tasks to focus on individual ticketing 
and baggage issues. Travelers with and without disabilities will also 
benefit from the design features of accessible kiosks (e.g., travelers 
who have difficulty reading English may benefit from having the ability 
to hear the kiosk instructions). We note that some of the non-
quantifiable costs include the sunk costs of inaccessible kiosk models 
currently under development and occasional increases in kiosk waiting 
times that may result for other travelers initially as new users become 
familiar with kiosk features and applications.
    Regarding the Web site accessibility requirements, we anticipate 
both non-quantifiable and intrinsically qualitative benefits. Web sites 
that meet the WCAG 2.0 Level AA standards will have a cleaner layout 
and less content per page, resulting in improved accessibility not only 
for people with severe vision impairments, but also for those with less 
severe disabilities such as low vision, developmental delays, or 
epilepsy. Web site accessibility will also remove a barrier to travel 
for independent people with severe vision impairments, making it more 
likely they will travel and increasing the number of trips they 
purchase. For carriers, we expect the process of making their Web sites 
accessible (e.g., developing a detailed Web site inventory) to result 
in an improved ability to identify and clean up existing errors and 
performance issues (e.g., broken links and circular references).
    There are also potentially important categories of costs associated 
with the Web site accessibility requirements that are intrinsically 
qualitative or for which monetary values cannot be estimated from the 
available data. Bringing an entire air travel Web site into compliance 
with WCAG 2.0 Level AA, for example, may reduce options for innovation 
and creative presentation of Web content. Carriers will also need to 
allocate programming resources for creating and updating Web pages to 
ensure regulatory compliance that could be used to otherwise improve or 
increase functionality on their primary Web sites. Also unknown are the 
costs the Department will have to incur to enforce these rules by 
acquiring and maintaining the ability to monitor covered air travel Web 
sites, conduct periodic testing and verification, and work with 
carriers to understand and remedy identified Web site noncompliance.
    The Department believes that the qualitative and non-quantifiable 
benefits of the Web site and kiosk accessibility requirements 
nonetheless justify the costs and make the rule cost beneficial, even 
without the economic benefits displayed in the tables below. The non-
quantifiable benefits to individuals with disabilities, in particular, 
are integral to achieving full inclusion and access to the entire 
spectrum of air transportation services, which is the overarching goal 
of the ACAA.
    The final Regulatory Evaluation established that the monetized 
benefits of the final rule exceed its monetized costs by $13.5 million 
using a 3-percent discount rate. The benefits and costs were estimated 
for the 10-year period beginning two years after the effective date 
(which was assumed to be January 1, 2014) for the Web site 
accessibility requirements and three years after the effective date for 
kiosk accessibility requirements. The upfront compliance costs incurred 
for Web sites in 2014 and 2015 and for kiosks in 2015 and 2016 were 
rolled forward and included in the 10-year analysis period results 
cited in the final regulatory evaluation. The expected present value of 
monetized benefits from the final rule over a 10 year period using a 7-
percent discount rate is estimated at $110.7 million, and the expected 
present value of monetized costs to comply with the final rule over a 
10-year period using a 7-percent

[[Page 67912]]

discount rate is estimated at $114.7 million. The present value of 
monetized net benefits over a 10 year period at a 7-percent discount 
rate is -$4.0 million. The table below, taken from the final Regulatory 
Evaluation, summarizes the monetized costs and benefits of the rule.

                               Present Value of Net Benefits for Rule Requirement
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                                                  Present value
    Monetized benefits and costs      Discounting period/rate     Web sites          Kiosks         (millions)
----------------------------------------------------------------------------------------------------------------
Monetized Benefits..................  10 Years, 7%                      $75.9            $34.8           $110.7
                                       discounting.
                                      10 Years, 3%                       90.3             42.0            132.3
                                       discounting.
Monetized Costs.....................  10 Years, 7%                       79.8             34.9            114.7
                                       discounting.
                                      10 Years, 3%                       82.5             36.1            118.6
                                       discounting.
Monetized Net Benefits..............  10 Years, 7%                       (3.9)            (0.1)            (4.0)
                                       discounting.
                                      10 Years, 3%                        7.8              5.9             13.7
                                       discounting.
----------------------------------------------------------------------------------------------------------------
* Present value in 2016 for Web site requirements and 2017 for kiosk requirements.

B. Executive Order 13132 (Federalism)

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
final rule does not include any provision that: (1) 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; or (2) imposes 
substantial direct compliance costs on State and local governments. 
With regard to preemption, this final rule preempts State law in the 
area of disability civil rights in air transportation. However, State 
regulation in this area is already expressly preempted by the Airline 
Deregulation Act, which prohibits States from enacting or enforcing a 
law ``related to a price, route, or service of an air carrier.'' \57\ 
Furthermore, the ACAA occupies the field in the area of 
nondiscrimination in air travel on the basis of disability. Therefore, 
the consultation and funding requirements of Executive Order 13132 do 
not apply.
---------------------------------------------------------------------------

    \57\ 49 U.S.C. 41713(b)(1).
---------------------------------------------------------------------------

C. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final rule 
does not significantly or uniquely affect the communities of the Indian 
tribal governments or impose substantial direct compliance costs on 
them, the funding and consultation requirements of Executive Order 
13175 do not apply.

D. 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. 
We note that while the Regulatory Flexibility Act does not apply to 
foreign entities, we have examined the effects of this rule not only on 
U.S. airports and air carriers that are small entities under applicable 
regulatory provisions, but on small foreign carriers as well. The Web 
site accessibility requirements do not impact small U.S. and foreign 
carriers. Only carriers that operate at least one aircraft having a 
seating capacity of more than 60 passengers are required to make their 
Web sites accessible to passengers with disabilities and ensure that 
they provide Web-based discounts and waive any telephone or walk-in 
reservation fees for individuals unable to use their Web site due to a 
disability.
    This final rule also requires small U.S. and foreign carriers that 
own, lease, or operate proprietary or shared-use automated kiosks at 
U.S. airports with 10,000 or more annual enplanements to install 
accessible models at each U.S. airport kiosk location starting three 
years after the rule's effective date until at least 25 percent of 
automated kiosks provided at each location are accessible and provide 
all the same functions as the inaccessible kiosks at each location. The 
same requirement applies to operators of U.S. airports with 10,000 or 
more annual enplanements that own, lease, or operate shared-use 
automated kiosks. Research for our initial regulatory flexibility 
analysis identified no small carriers or small airport authorities 
covered by the proposed accessibility requirements that owned or 
operated kiosks. Moreover, we received no comments on the proposed 
requirements during the SNPRM public comment period from small carriers 
(those exclusively operating aircraft with 60 or fewer seats), small 
airport authorities (those publicly owned by jurisdictions with fewer 
than 50,000 inhabitants or privately owned by small entities with 
annual revenues of $30 million or less under the Small Business 
Administration (SBA) size standard), or other stakeholders that are 
small entities. For this final rule, therefore, we conducted no further 
analysis on the impact of the kiosk accessibility requirements on small 
entities.
    On the basis of the examination discussed above, the Department 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities. A copy of the Final Regulatory 
Flexibility Analysis has been placed in docket.

E. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), a Federal agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a valid control number 
assigned by the Office of Management and Budget (OMB) (Pub. L. 104-13, 
49 U.S.C. 3501 et seq.). The Department may not impose a penalty on 
persons for violating information collection requirements when an 
information collection required to have a current OMB control number 
does not have one.
    The final rule contains two new information collection requirements 
that require approval by OMB under the PRA. Specifically, section 
382.43 requires carriers to provide a mechanism on their Web sites for 
passengers to provide online notification of their requests for 
disability accommodation services (e.g., enplaning/deplaning 
assistance, deaf/hard of hearing communication assistance, escort to 
service animal relief area, etc.) within two years after the effective 
date of this final rule. Section 382.43 also requires carriers to 
ensure that a disclaimer is activated when a user clicks a link on a 
primary Web site

[[Page 67913]]

to embedded third-party software or an external Web site. The 
disclaimer must inform the user that the software/Web site is not 
within the carrier's control and may not follow the same accessibility 
policies.
    As required by the PRA, the Department invites interested persons 
to submit comments on any aspect of these information collections for 
60 days, including the following: (1) The necessity and utility of the 
information collection, (2) the accuracy of the estimate of the burden, 
(3) ways to enhance the quality, utility, and clarity of the 
information to be collected, and (4) ways to minimize the burden of 
collection without reducing the quality of the collected information. 
Organizations and individuals desiring to submit comments on these 
information collection requirements should direct them to the Office of 
Management and Budget, Attention: Desk Officer for the Office of the 
Secretary of Transportation, Office of Information and Regulatory 
Affairs, 725 17th Street NW., Washington, DC 20503, and should also 
send a copy of their comments to: Department of Transportation, Office 
of Aviation Enforcement and Proceedings, Office of the General Counsel, 
1200 New Jersey Avenue SE., Washington, DC 20590.
    As noted above, the first of these two new information collections 
is mandated by the requirement that carriers that market air 
transportation online to customers in the U.S. make a disability 
accommodation service request function available on their primary Web 
site within two years after the effective date of this rule. The types 
of accommodations a passenger with a disability may request through the 
function would most often include, but are not limited to, wheelchair 
assistance, seating accommodation, escort assistance for a visually 
impaired passenger, and stowage of an assistive device. Carriers are 
permitted to require that a passenger with a disability provides his/
her contact information (e.g., telephone number, email address) when 
making an online service request.
    The Department anticipates that carriers will create a form that 
contains 1) check boxes corresponding to a listing of the current IATA 
disability-related Special Service Request (SSR) codes currently used 
to flag electronic ticket records of passengers requesting assistance, 
2) fields for passenger contact information to verify requested 
services, and 3) an open text box to describe the specific needs and 
the services being requested. We anticipate that each covered U.S. and 
foreign carrier that markets scheduled air transportation to the 
general public in the United States would incur initial costs 
associated with developing and reviewing the design and implementation 
plan for the request form, developing, coding, and integrating the form 
into the Web site, as well as testing, debugging, and connecting the 
form with a backend database to store the information. None of these 
initial costs involve recordkeeping or reporting activities under the 
meaning of the PRA. The revised final regulatory analysis (FRA) 
estimates that it will take an average of 32 labor hours per carrier to 
develop, implement, integrate, connect, and test the online request 
form. Up to 28 additional hours eventually may be needed to revise 
request-handling procedures and to train staff in the changes resulting 
from the new form. Should carrier associations or some other entity 
develop a common request form that all carriers could adapt and 
incorporate to their Web sites, the initial costs per carrier would be 
reduced.
    The second information collection is a requirement for carriers to 
provide a disclaimer notice for each link on its primary Web site that 
enables a user to access software or an external Web site that may not 
follow the same accessibility policies as the primary Web site. The 
disclaimer notice must be activated the first time a user clicks such a 
link before beginning the software download or transferring the user to 
the external Web site. We anticipate that each covered U.S. and foreign 
carrier that markets scheduled air transportation to the general public 
in the United States will incur initial costs associated with 
identifying all links on the Web site that may require a disclaimer, 
developing and reviewing the design and language for the disclaimer 
notice, as well as developing, testing, and deploying the code that 
provides this notice to Web site visitors. However, none of these 
initial costs involves recordkeeping or reporting activities under the 
meaning of the PRA. The incremental labor hours associated with 
providing the required disclaimer may vary depending on the number of 
links on the Web site to which this requirement applies. The revised 
FRA estimates that it will take an average of 6 labor hours per carrier 
to develop, test, and deploy the disclaimer notice.
    The title, a description of the respondents, and an estimate of the 
annual recordkeeping and periodic reporting burden are set forth below 
for each of these information collections:
    1. Requirement to make a disability accommodation service request 
function available on the primary Web site.
    Respondents: U.S. and foreign air carriers that own or control a 
primary Web site that markets air transportation within, to, or from 
the United States, or a tour (i.e., a combination of air transportation 
and ground or cruise accommodations), or a tour component (e.g., a 
hotel stay of a tour) that includes air transportation within, to, or 
from the United States, and that operate at least one aircraft with a 
seating capacity of more than 60 passengers.
    Estimated Annual Burden on Respondents: 32 hours.
    Estimated Total Annual Burden: 3,552 hours.
    Frequency: One time.
    2. Requirement to provide a disclaimer notice to users when 
clicking a link on a primary Web site to embedded third-party software 
or an external Web site.
    Respondents: U.S. and foreign air carriers that own or control a 
primary Web site that markets air transportation within, to, or from 
the United States, or a tour (i.e., a combination of air transportation 
and ground or cruise accommodations), or a tour component (e.g., a 
hotel stay of a tour) that includes air transportation within, to, or 
from the United States, and that operate at least one aircraft with a 
seating capacity of more than 60 passengers.
    Estimated Annual Burden on Respondents: 6 hours.
    Estimated Total Annual Burden: 666 hours.
    Frequency: One time.

F. Unfunded Mandates Reform Act

    The requirements of Title II of the Unfunded Mandates Reform Act of 
1995 do not apply to civil rights requirements mandating 
nondiscrimination; therefore, the Department has determined that the 
Act does not apply to this final rule.

    Issued this November 1, 2013, at Washington, DC.
Anthony R. Foxx,
Secretary of Transportation.

List of Subjects

14 CFR Part 382

    Air carriers, Civil rights, Individuals with disabilities, 
Reporting and recordkeeping requirements.

14 CFR Part 399

    Administrative practice and procedure, Air carriers, Air rates and 
fares, Air taxis, Consumer protection, Small businesses

49 CFR Part 27

    Airports, Civil rights, Individuals with disabilities, Reporting 
and recordkeeping requirements


[[Page 67914]]


    For the reasons set forth in the preamble, the Department amends 14 
CFR parts 382 and 399 and 49 CFR part 27 as follows:

Title 14--Aeronautics and Space

PART 382--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN AIR 
TRAVEL

0
1. The authority citation for part 382 continues to read as follows:

    Authority: 49 U.S.C. 41702, 41705, 41712, and 41310.


0
2. Section 382.3 is amended by revising the definition of ``air 
transportation'' and adding definitions for ``automated airport 
kiosk,'' ``conforming alternate version,'' ``flight-related services,'' 
``primary (or main) Web site,'' and ``shared-use automated airport 
kiosk'' in alphabetical order to read as follows:


Sec.  382.3  What do the terms in this rule mean?

* * * * *
    Air Transportation means interstate or foreign air transportation 
or the transportation of mail by aircraft, as defined in 49 U.S.C. 
40102. Generally this refers to transportation by aircraft within, to 
or from the United States.
* * * * *
    Automated airport kiosk means a self-service transaction machine 
that a carrier owns, leases, or controls and makes available at a U.S. 
airport to enable customers to independently obtain flight-related 
services.
* * * * *
    Conforming alternate version means a Web page that allows a 
corresponding non-conforming Web page on the primary Web site to be 
included within the scope of conformance as long as it meets the WCAG 
2.0 Level AA success criteria, is up-to-date and contains the same 
information and functionality in the same language as the non-
conforming page. At least one of the following applies to a conforming 
alternative version:
    (1) The conforming version can be reached from the non-conforming 
page via an accessibility-supported mechanism; or
    (2) The non-conforming version can only be reached from the 
conforming version; or
    (3) The non-conforming version can only be reached from a 
conforming page that also provides a mechanism to reach the conforming 
version.
* * * * *
    Flight-related services mean functions related to air travel 
including, but not limited to, ticket purchase, rebooking cancelled 
flights, seat selection, and obtaining boarding passes or bag tags.
* * * * *
    Primary (or Main) Web site means the Web site that is accessed upon 
entering the uniform resource locator (e.g., www.carriername.com, 
www.airline designator code.com) in an Internet browser from a standard 
desktop or laptop computer where the carrier advertises or sells air 
transportation to the public.
* * * * *
    Shared-use automated airport kiosk means a self-service transaction 
machine that is jointly owned, controlled or leased by an airport 
operator and carriers and/or an independent service provider and that 
provides carrier software applications which enable customers to 
independently access flight-related services.
* * * * *


Sec.  382.31  [Amended]

0
3. In Sec.  382.31, paragraph (c) is removed.

0
4. Section 382.43 is amended by revising the section heading and adding 
paragraphs (c) through (e) to read as follows:


Sec.  382.43  Must information and reservation services of carriers be 
accessible to individuals with visual, hearing, and other disabilities?

* * * * *
    (c) If you are a U.S. or foreign air carrier that operates at least 
one aircraft having a designed seating capacity of more than 60 
passengers and owns or controls a primary Web site that markets 
passenger air transportation, or a tour (i.e., a combination of air 
transportation and ground or cruise accommodations), or tour component 
(e.g., a hotel stay) that must be purchased with air transportation, 
you must ensure the public-facing Web pages on your primary Web site 
are accessible to individuals with disabilities as provided in 
paragraphs (c)(1) through (4) of this section. Only Web sites that 
market air transportation to the general public in the United States 
must be accessible to individuals with disabilities. The following are 
among the characteristics of a primary Web site that markets to the 
general public in the U.S.: the content can be viewed in English, the 
site advertises or sells flights operating to, from, or within the 
United States, and the site displays fares in U.S. dollars.
    (1) Your primary Web site must conform to all Success Criteria and 
all Conformance Requirements from the World Wide Web Consortium (W3C) 
Recommendation 11 December 2008, Web site Content Accessibility 
Guidelines (WCAG) 2.0 for Level AA as follows:
    (i) Web pages associated with obtaining the following core air 
travel services and information that are offered on your primary Web 
site are conformant by December 12, 2015:
    (A) Booking or changing a reservation, including all flight 
amenities;
    (B) Checking in for a flight;
    (C) Accessing a personal travel itinerary;
    (D) Accessing the status of a flight;
    (E) Accessing a personal frequent flyer account;
    (F) Accessing flight schedules; and
    (G) Accessing carrier contact information.
    (ii) All remaining Web pages on your primary Web site are 
conformant by December 12, 2016.
    (2) Your primary Web site must be tested in consultation with 
individuals with disabilities or members of disability organization(s) 
who use or want to use carrier Web sites to research or book air 
transportation in order to obtain their feedback on the Web site's 
accessibility and usability before the dates specified in paragraph 
(c)(1) of this section. Collectively, such individuals must be able to 
provide feedback on the usability of the Web site by individuals with 
visual, auditory, tactile, and cognitive disabilities. Consultation is 
required to ensure that your Web site is usable by individuals with 
disabilities by the date specified in paragraph (c)(1).
    (3) You are permitted to use a Level AA conforming alternate 
version only when conforming a public-facing Web page to all WCAG 2.0 
Level AA success criteria would constitute an undue burden or 
fundamentally alter the information or functionality provided by that 
page.
    (4) You must assist prospective passengers who indicate that they 
are unable to use your Web site due to a disability and contact you 
through other channels (e.g., by telephone or at the ticket counter) as 
follows:
    (i) Disclose Web-based discount fares to the passenger if his or 
her itinerary qualifies for the discounted fare.
    (ii) Provide Web-based amenities to the passenger, such as waiving 
any fee applicable to making a reservation or purchasing a ticket using 
a method other than your Web site (e.g., by telephone), unless the fee 
applies to other customers purchasing the same fare online.
    (d) As a carrier covered under paragraph (c) of this section, you 
must provide a mechanism on your primary

[[Page 67915]]

Web site for persons with disabilities to request disability 
accommodation services for future flights, including but not limited to 
wheelchair assistance, seating accommodation, escort assistance for a 
visually impaired passenger, and stowage of an assistive device no 
later than December 12, 2015. You may require individuals who request 
accommodations using this mechanism to provide contact information 
(e.g., name, daytime phone, evening phone, and email address) for 
follow-up by your customer service department or medical desk.
    (e) As a carrier covered under paragraph (c) of this section, you 
must provide a disclaimer activated when a user clicks a link on your 
primary Web site to an external Web site or to third-party software 
informing the user that the Web site or software may not follow the 
same accessibility policies no later than December 12, 2016.

0
5. Section 382.57 is revised to read as follows:


Sec.  382.57  What accessibility requirements apply to automated 
airport kiosks?

    (a) As a carrier, you must comply with the following requirements 
with respect to any automated airport kiosk you own, lease, or control 
at a U.S. airport with 10,000 or more enplanements per year.
    (1) You must ensure that all automated airport kiosks installed on 
or after December 12, 2016, are models that meet the design 
specifications set forth in paragraph (c) of this section until at 
least 25 percent of automated kiosks provided in each location at the 
airport (i.e., each cluster of kiosks and all stand-alone kiosks at the 
airport) meets this specification.
    (2) You must ensure that at least 25 percent of automated kiosks 
you own, lease, or control in each location at a U.S. airport meet the 
design specifications in paragraph (c) of this section by December 12, 
2022.
    (3) When the kiosks provided in a location at the airport perform 
more than one function (e.g., print boarding passes/bag tags, accept 
payment for flight amenities such as seating upgrades/meals/WiFi 
access, rebook tickets, etc.), you must ensure that the accessible 
kiosks provide all the same functions as the inaccessible kiosks in 
that location.
    (4) You must ensure that a passenger with a disability who requests 
an accessible automated kiosk is given priority access to any available 
accessible kiosk you own, lease, or control in that location at the 
airport.
    (5) You must ensure that each automated airport kiosk that meets 
the design specifications in paragraph (c) of this section is:
    (i) Visually and tactilely identifiable to users as accessible 
(e.g., an international symbol of accessibility affixed to the front of 
the device).
    (ii) Maintained in proper working condition.
    (b) As a carrier, you must comply with the following requirements 
for any shared-use automated airport kiosks you jointly own, lease, or 
control at a U.S. airport with 10,000 or more enplanements per year.
    (1) You must ensure that all shared-use automated airport kiosks 
you jointly own, lease, or control installed on or after December 12, 
2016, meet the design specifications in paragraph (c) of this section 
until at least 25 percent of automated kiosks provided in each location 
at the airport (i.e., each cluster of kiosks and all stand-alone kiosks 
at an airport) meet this specification.
    (2) You must ensure that at least 25 percent of shared-use 
automated kiosks you own, lease, or control in each location at the 
airport meet the design specifications in paragraph (c) of this section 
by December 12, 2022.
    (3) When shared-use automated kiosks provided in a location at the 
airport perform more than one function (e.g., print boarding passes/bag 
tags, accept payment for flight amenities such as seating upgrades/
meals/WiFi access, rebook tickets, etc.), you must ensure that the 
accessible kiosks provide all the same functions as the inaccessible 
kiosks in that location.
    (4) You must ensure that each automated airport kiosk that meets 
the design specifications set forth in paragraph (c) of this section 
is:
    (i) Visually and tactilely identifiable to users as accessible 
(e.g., an international symbol of accessibility affixed to the front of 
the device; and
    (ii) Maintained in proper working condition.
    (5) As a carrier, you are jointly and severally liable with airport 
operators and/or other participating carriers for ensuring that shared-
use automated airport kiosks are compliant with the requirements of 
paragraphs (b) and (c) of this section.
    (c) You must ensure that the automated airport kiosks provided in 
accordance with this section conform to the following technical 
accessibility standards with respect to their physical design and the 
functions they perform:
    (1) Self contained. Except for personal headsets and audio loops, 
automated kiosks must be operable without requiring the user to attach 
assistive technology.
    (2) Clear floor or ground space. A clear floor or ground space 
complying with section 305 of the U.S. Department of Justice's 2010 ADA 
Standards for Accessible Design, 28 CFR 35.104 (defining the ``2010 
Standards'' for title II as the requirements set forth in appendices B 
and D to 36 CFR part 1191 and the requirements contained in 28 CFR 
35.151) (hereinafter 2010 ADA Standards) must be provided.
    (3) Operable parts. Operable parts must comply with section 309 of 
the 2010 ADA Standards, and the following requirements:
    (i) Identification. Operable parts must be tactilely discernible 
without activation;
    (ii) Timing. Where a timed response is required, the user must be 
alerted visually and by touch or sound and must be given the 
opportunity to indicate that more time is required;
    (iii) Status indicators. Status indicators, including all locking 
or toggle controls or keys (e.g., Caps Lock and Num Lock keys), must be 
discernible visually and by touch or sound; and
    (iv) Color. Color coding must not be used as the only means of 
conveying information, indicating an action, prompting a response, or 
distinguishing a visual element.
    (4) Privacy. Automated airport kiosks must provide the opportunity 
for the same degree of privacy of input and output available to all 
individuals. However, if an option is provided to blank the screen in 
the speech output mode, the screen must blank when activated by the 
user, not automatically.
    (5) Output. Automated airport kiosks must comply with paragraphs 
(c)(5)(i) through (iv) of this section.
    (i) Speech output enabled. Automated airport kiosks must provide an 
option for speech output. Operating instructions and orientation, 
visible transaction prompts, user input verification, error messages, 
and all other visual information for full use must be accessible to and 
independently usable by individuals with vision impairments. Speech 
output must be delivered through a mechanism that is readily available 
to all users, including but not limited to, an industry standard 
connector or a telephone handset. Speech output must be recorded or 
digitized human, or synthesized. Speech output must be coordinated with 
information displayed on the screen. Speech output must comply with 
paragraphs (c)(5)(i)(A) through (F) of this section.
    (A) When asterisks or other masking characters are used to 
represent personal identification numbers or other

[[Page 67916]]

visual output that is not displayed for security purposes, the masking 
characters must be spoken (``*'' spoken as ``asterisk'') rather than 
presented as beep tones or speech representing the concealed 
information.
    (B) Advertisements and other similar information are not required 
to be audible unless they convey information that can be used in the 
transaction being conducted.
    (C) Speech for any single function must be automatically 
interrupted when a transaction is selected or navigation controls are 
used. Speech must be capable of being repeated and paused by the user.
    (D) Where receipts, tickets, or other outputs are provided as a 
result of a transaction, speech output must include all information 
necessary to complete or verify the transaction, except that--
    (1) Automated airport kiosk location, date and time of transaction, 
customer account numbers, and the kiosk identifier are not required to 
be audible;
    (2) Information that duplicates information available on-screen and 
already presented audibly is not required to be repeated; and
    (3) Printed copies of a carrier's contract of carriage, applicable 
fare rules, itineraries and other similar supplemental information that 
may be included with a boarding pass are not required to be audible.
    (ii) Volume control. Automated kiosks must provide volume control 
complying with paragraphs (c)(5)(ii)(A) and (B) of this section.
    (A) Private listening. Where speech required by paragraph (c)(5)(i) 
of this section is delivered through a mechanism for private listening, 
the automated kiosk must provide a means for the user to control the 
volume. A function must be provided to automatically reset the volume 
to the default level after every use.
    (B) Speaker volume. Where sound is delivered through speakers on 
the automated kiosk, incremental volume control must be provided with 
output amplification up to a level of at least 65 dB SPL. Where the 
ambient noise level of the environment is above 45 dB SPL, a volume 
gain of at least 20 dB above the ambient level must be user selectable. 
A function must be provided to automatically reset the volume to the 
default level after every use.
    (iii) Captioning. Multimedia content that contains speech or other 
audio information necessary for the comprehension of the content must 
be open or closed captioned. Advertisements and other similar 
information are not required to be captioned unless they convey 
information that can be used in the transaction being conducted.
    (iv) Tickets and boarding passes. Where tickets or boarding passes 
are provided, tickets and boarding passes must have an orientation that 
is tactilely discernible if orientation is important to further use of 
the ticket or boarding pass.
    (6) Input. Input devices must comply with paragraphs (c)(6)(i) 
through (iv) of this section.
    (i) Input controls. At least one input control that is tactilely 
discernible without activation must be provided for each function. 
Where provided, key surfaces not on active areas of display screens, 
must be raised above surrounding surfaces. Where touch or membrane keys 
are the only method of input, each must be tactilely discernible from 
surrounding surfaces and adjacent keys.
    (ii) Alphabetic keys. Alphabetic keys must be arranged in a QWERTY 
keyboard layout. The ``F'' and ``J'' keys must be tactilely distinct 
from the other keys.
    (iii) Numeric keys. Numeric keys must be arranged in a 12-key 
ascending or descending keypad layout or must be arranged in a row 
above the alphabetic keys on a QWERTY keyboard. The ``5'' key must be 
tactilely distinct from the other keys.
    (iv) Function keys. Function keys must comply with paragraphs 
(c)(6)(iv)(A) and (B) of this section.
    (A) Contrast. Function keys must contrast visually from background 
surfaces. Characters and symbols on key surfaces must contrast visually 
from key surfaces. Visual contrast must be either light-on-dark or 
dark-on-light. However, tactile symbols required by (c)(6)(iv)(B) are 
not required to comply with (c)(6)(iv)(A) of this section.
    (B) Tactile symbols. Function key surfaces must have tactile 
symbols as follows: Enter or Proceed key: raised circle; Clear or 
Correct key: raised left arrow; Cancel key: raised letter ex; Add Value 
key: raised plus sign; Decrease Value key: raised minus sign.
    (7) Display screen. The display screen must comply with paragraphs 
(c)(7)(i) and (ii) of this section.
    (i) Visibility. The display screen must be visible from a point 
located 40 inches (1015 mm) above the center of the clear floor space 
in front of the automated kiosk.
    (ii) Characters. Characters displayed on the screen must be in a 
sans serif font. Characters must be 3/16 inch (4.8 mm) high minimum 
based on the uppercase letter ``I.'' Characters must contrast with 
their background with a minimum luminosity contrast ratio of 3:1.
    (8) Braille instructions. Braille instructions for initiating the 
speech mode must be provided. Braille must comply with section 703.3 of 
the 2010 ADA Standards.
    (9) Biometrics. Biometrics must not be the only means for user 
identification or control, unless at least two biometric options that 
use different biological characteristics are provided.
    (d) You must provide equivalent service upon request to passengers 
with a disability who cannot readily use your automated airport kiosks 
(e.g., by directing a passenger who is blind to an accessible automated 
kiosk, assisting a passenger in using an inaccessible automated kiosk, 
assisting a passenger who due to his or her disability cannot use an 
accessible automated kiosk by allowing the passenger to come to the 
front of the line at the check-in counter).

PART 399--STATEMENTS OF GENERAL POLICY [AMENDED]

0
4. The authority citation for part 399 is revised to read as follows:

    Authority: 49 U.S.C. 41712


0
5. Section 399.80 is amended by revising the introductory text, adding 
reserved paragraphs (o) through (r), and adding paragraph (s) to read 
as follows:


Sec.  399.80  Unfair and deceptive practices of ticket agents.

    It is the policy of the Department to regard as an unfair or 
deceptive practice or unfair method of competition the practices 
enumerated in paragraphs (a) through (m) of this section by a ticket 
agent of any size and the practice enumerated in paragraph (s) by a 
ticket agent that sells air transportation online and is not considered 
a small business under the Small Business Administration's size 
standards set forth in 13 CFR 121.201:
* * * * *
    (o)-(r) [Reserved]
    (s) Failing to disclose and offer Web-based discount fares on or 
after June 10, 2014, to prospective passengers who contact the agent 
through other channels (e.g., by telephone or in the agent's place of 
business) and indicate they are unable to use the agent's Web site due 
to a disability.

[[Page 67917]]

Title 49--Transportation

PART 27--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS 
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

0
6. The authority citation for part 27 continues to read as follows:

    Authority:  Sec. 504 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 794); sec. 16(a) and (d) of the Federal Transit 
Act of 1964, as amended (49 U.S.C. 5310(a) and (f); sec. 165(b) of 
the Federal-Aid Highway Act of 1973, as amended (23 U.S.C. 142 nt.).


0
7. Section 27.71 is amended by adding reserved paragraphs (h) and (i) 
and paragraphs (j) and (k) to read as follows:


Sec.  27.71  Airport facilities.

* * * * *
    (h) [Reserved]
    (i) [Reserved]
    (j) Shared-use automated airport kiosks. This paragraph applies to 
U.S. airports with 10,000 or more annual enplanements.
    (1) Airport operators that jointly own, lease, or control automated 
airport kiosks with carriers at U.S. airports must ensure that all 
shared-use automated kiosks installed on or after December 12, 2016 
meet the design specifications set forth in paragraph (k) of this 
section until at least 25 percent of kiosks provided in each location 
at the airport (i.e., each cluster of kiosks and all stand-alone kiosks 
at the airport) meet this specification.
    (2) Airport operators must ensure that at least 25 percent of 
shared-use automated airport kiosks they jointly own, lease, or control 
with carriers in each location at the airport meet the design 
specifications in paragraph (k) of this section by December 12, 2022.
    (3) When shared-use kiosks provided in a location at the airport 
perform more than one function (e.g., print boarding passes/bag tags, 
accept payment for flight amenities such as seating upgrades/meals/WiFi 
access, rebook tickets, etc.), the accessible kiosks must provide all 
the same functions as the inaccessible kiosks in that location.
    (4) Each shared-use automated kiosk that meets the design 
specifications in paragraph (k) of this section must be visually and 
tactilely identifiable to users as accessible (e.g., an international 
symbol of accessibility affixed to the front of the device) and 
maintained in proper working condition.
    (5) Airport operators are jointly and severally liable with 
carriers for ensuring that shared-use automated airport kiosks are 
compliant with the requirements of paragraphs (j) and (k) of this 
section.
    (k) Shared-use automated airport kiosks provided in accordance with 
paragraph (j) of this section must conform to the following technical 
accessibility standards with respect to their physical design and the 
functions they perform:
    (1) Self contained. Except for personal headsets and audio loops, 
automated kiosks must be operable without requiring the user to attach 
assistive technology.
    (2) Clear floor or ground space. A clear floor or ground space 
complying with section 305 of the U.S. Department of Justice's 2010 ADA 
Standards for Accessible Design, 28 CFR 35.104 (defining the ``2010 
Standards'' for title II as the requirements set forth in appendices B 
and D to 36 CFR part 1191 and the requirements contained in 28 CFR 
35.151) (hereinafter 2010 ADA Standards) must be provided.
    (3) Operable parts. Operable parts must comply with section 309 of 
the 2010 ADA Standards, and the following requirements:
    (i) Identification. Operable parts must be tactilely discernible 
without activation;
    (ii) Timing. Where a timed response is required, the user must be 
alerted visually and by touch or sound and must be given the 
opportunity to indicate that more time is required;
    (iii) Status indicators. Status indicators, including all locking 
or toggle controls or keys (e.g., Caps Lock and Num Lock keys), must be 
discernible visually and by touch or sound; and
    (iv) Color. Color coding must not be used as the only means of 
conveying information, indicating an action, prompting a response, or 
distinguishing a visual element.
    (4) Privacy. Automated airport kiosks must provide the opportunity 
for the same degree of privacy of input and output available to all 
individuals. However, if an option is provided to blank the screen in 
the speech output mode, the screen must blank when activated by the 
user, not automatically.
    (5) Output. Automated airport kiosks must comply with paragraphs 
(k)(5)(i) through (iv) of this section.
    (i) Speech output enabled. Automated airport kiosks must provide an 
option for speech output. Operating instructions and orientation, 
visible transaction prompts, user input verification, error messages, 
and all other visual information for full use must be accessible to and 
independently usable by individuals with vision impairments. Speech 
output must be delivered through a mechanism that is readily available 
to all users, including but not limited to, an industry standard 
connector or a telephone handset. Speech output must be recorded or 
digitized human, or synthesized. Speech output must be coordinated with 
information displayed on the screen. Speech output must comply with 
paragraphs (k)(5)(i)(A) through (D) of this section.
    (A) When asterisks or other masking characters are used to 
represent personal identification numbers or other visual output that 
is not displayed for security purposes, the masking characters must be 
spoken (``*'' spoken as ``asterisk'') rather than presented as beep 
tones or speech representing the concealed information.
    (B) Advertisements and other similar information are not required 
to be audible unless they convey information that can be used in the 
transaction being conducted.
    (C) Speech for any single function must be automatically 
interrupted when a transaction is selected or navigation controls are 
used. Speech must be capable of being repeated and paused by the user.
    (D) Where receipts, tickets, or other outputs are provided as a 
result of a transaction, speech output must include all information 
necessary to complete or verify the transaction, except that -
    (1) Automated airport kiosk location, date and time of transaction, 
customer account numbers, and the kiosk identifier are not required to 
be audible;
    (2) Information that duplicates information available on-screen and 
already presented audibly is not required to be repeated; and
    (3) Printed copies of a carrier's contract of carriage, applicable 
fare rules, itineraries and other similar supplemental information that 
may be included with a boarding pass are not required to be audible.
    (ii) Volume control. Automated kiosks must provide volume control 
complying with paragraphs (k)(5)(ii)(A) and (B) of this section.
    (A) Private listening. Where speech required by paragraph (k)(5)(i) 
is delivered through a mechanism for private listening, the automated 
kiosk must provide a means for the user to control the volume. A 
function must be provided to automatically reset the volume to the 
default level after every use.
    (B) Speaker volume. Where sound is delivered through speakers on 
the automated kiosk, incremental volume control must be provided with 
output amplification up to a level of at least 65 dB SPL. Where the 
ambient noise level of the environment is above 45 dB SPL, a volume 
gain of at least 20 dB above

[[Page 67918]]

the ambient level must be user selectable. A function must be provided 
to automatically reset the volume to the default level after every use.
    (iii) Captioning. Multimedia content that contains speech or other 
audio information necessary for the comprehension of the content must 
be open or closed captioned.
    Advertisements and other similar information are not required to be 
captioned unless they convey information that can be used in the 
transaction being conducted.
    (iv) Tickets and boarding passes. Where tickets or boarding passes 
are provided, tickets and boarding passes must have an orientation that 
is tactilely discernible if orientation is important to further use of 
the ticket or boarding pass.
    (6) Input. Input devices must comply with paragraphs (k)(6)(i) 
through (iv) of this section.
    (i) Input controls. At least one input control that is tactilely 
discernible without activation must be provided for each function. 
Where provided, key surfaces not on active areas of display screens, 
must be raised above surrounding surfaces. Where touch or membrane keys 
are the only method of input, each must be tactilely discernible from 
surrounding surfaces and adjacent keys.
    (ii) Alphabetic keys. Alphabetic keys must be arranged in a QWERTY 
keyboard layout. The ``F'' and ``J'' keys must be tactilely distinct 
from the other keys.
    (iii) Numeric keys. Numeric keys must be arranged in a 12-key 
ascending or descending keypad layout or must be arranged in a row 
above the alphabetic keys on a QWERTY keyboard. The ``5'' key must be 
tactilely distinct from the other keys.
    (iv) Function keys. Function keys must comply with paragraphs 
(k)(6)(iv)(A) and (B) of this section.
    (A) Contrast. Function keys must contrast visually from background 
surfaces. Characters and symbols on key surfaces must contrast visually 
from key surfaces. Visual contrast must be either light-on-dark or 
dark-on-light. However, tactile symbols required by (k)(6)(iv)(B) are 
not required to comply with paragraph (k)(6)(iv)(A) of this section.
    (B) Tactile symbols. Function key surfaces must have tactile 
symbols as follows: Enter or Proceed key: raised circle; Clear or 
Correct key: raised left arrow; Cancel key: raised letter ex; Add Value 
key: raised plus sign; Decrease Value key: raised minus sign.
    (7) Display screen. The display screen must comply with paragraphs 
(k)(7)(i) and (ii) of this section.
    (i) Visibility. The display screen must be visible from a point 
located 40 inches (1015 mm) above the center of the clear floor space 
in front of the automated kiosk.
    (ii) Characters. Characters displayed on the screen must be in a 
sans serif font. Characters must be 3/16 inch (4.8 mm) high minimum 
based on the uppercase letter ``I.'' Characters must contrast with 
their background with a minimum luminosity contrast ratio of 3:1.
    (8) Braille instructions. Braille instructions for initiating the 
speech mode must be provided. Braille must comply with section 703.3 of 
the 2010 ADA Standards.
    (9) Biometrics. Biometrics must not be the only means for user 
identification or control, unless at least two biometric options that 
use different biological characteristics are provided.

[FR Doc. 2013-26749 Filed 11-7-13; 4:15 pm]
BILLING CODE 4910-9X-P