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

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.