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

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 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 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.

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⁾

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 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⁾

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 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 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 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.

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 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⁾

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⁾

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⁾

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⁾

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.”

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 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.