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 - Preamble

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 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.