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

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 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.

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 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 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.