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

Regulatory Analysis and Notices

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

This action has been determined to be significant under Executive Order 12866 and the Department of Transportation's Regulatory Policies and Procedures. It has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) and is consistent with the requirements in both orders. Executive Order 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs, tailor the regulation to impose the least burden on society consistent with obtaining the regulatory objectives, and in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits and costs are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts. This rule promotes such values by requiring the removal of barriers to equal access to air transportation information and services for passengers with disabilities.

In the Department's view, the non-quantifiable benefits of kiosk accessibility, which the tables below do not reflect, are wholly consistent with the ACAA's mandate to eliminate discrimination against individuals with disabilities in air transportation. They include the increased ability of individuals with disabilities to independently access and use with equal convenience and privacy, and without stigmatization, the same air transportation information and services available to individuals without disabilities. Specific non-quantifiable benefits associated with the kiosk accessibility requirements also include an enhanced sense of inclusion for travelers with vision or mobility disabilities, as well as a decrease in the stigma of special treatment at the ticket counter and in their overall waiting time to check-in. Having a choice of check-in options (e.g., either the automated kiosk or the check-in counter), depending on their anticipated transaction time or personal preference also has value to many travelers with disabilities, even if its monetary value cannot be quantified. The availability of accessible kiosks will also reduce waiting times at ticket counters for travelers without disabilities who are required to or choose to use the airline ticket counters for ticket purchase or check-in and free customer service agents from routine check-in and seat assignments tasks to focus on individual ticketing and baggage issues. Travelers with and without disabilities will also benefit from the design features of accessible kiosks (e.g., travelers who have difficulty reading English may benefit from having the ability to hear the kiosk instructions). We note that some of the non-quantifiable costs include the sunk costs of inaccessible kiosk models currently under development and occasional increases in kiosk waiting times that may result for other travelers initially as new users become familiar with kiosk features and applications.

Regarding the Web site accessibility requirements, we anticipate both non-quantifiable and intrinsically qualitative benefits. Web sites that meet the WCAG 2.0 Level AA standards will have a cleaner layout and less content per page, resulting in improved accessibility not only for people with severe vision impairments, but also for those with less severe disabilities such as low vision, developmental delays, or epilepsy. Web site accessibility will also remove a barrier to travel for independent people with severe vision impairments, making it more likely they will travel and increasing the number of trips they purchase. For carriers, we expect the process of making their Web sites accessible (e.g., developing a detailed Web site inventory) to result in an improved ability to identify and clean up existing errors and performance issues (e.g., broken links and circular references).

There are also potentially important categories of costs associated with the Web site accessibility requirements that are intrinsically qualitative or for which monetary values cannot be estimated from the available data. Bringing an entire air travel Web site into compliance with WCAG 2.0 Level AA, for example, may reduce options for innovation and creative presentation of Web content. Carriers will also need to allocate programming resources for creating and updating Web pages to ensure regulatory compliance that could be used to otherwise improve or increase functionality on their primary Web sites. Also unknown are the costs the Department will have to incur to enforce these rules by acquiring and maintaining the ability to monitor covered air travel Web sites, conduct periodic testing and verification, and work with carriers to understand and remedy identified Web site noncompliance.

The Department believes that the qualitative and non-quantifiable benefits of the Web site and kiosk accessibility requirements nonetheless justify the costs and make the rule cost beneficial, even without the economic benefits displayed in the tables below. The non-quantifiable benefits to individuals with disabilities, in particular, are integral to achieving full inclusion and access to the entire spectrum of air transportation services, which is the overarching goal of the ACAA.

The final Regulatory Evaluation established that the monetized benefits of the final rule exceed its monetized costs by $13.5 million using a 3-percent discount rate. The benefits and costs were estimated for the 10-year period beginning two years after the effective date (which was assumed to be January 1, 2014) for the Web site accessibility requirements and three years after the effective date for kiosk accessibility requirements. The upfront compliance costs incurred for Web sites in 2014 and 2015 and for kiosks in 2015 and 2016 were rolled forward and included in the 10-year analysis period results cited in the final regulatory evaluation. The expected present value of monetized benefits from the final rule over a 10 year period using a 7-percent discount rate is estimated at $110.7 million, and the expected present value of monetized costs to comply with the final rule over a 10-year period using a 7-percent discount rate is estimated at $114.7 million. The present value of monetized net benefits over a 10 year period at a 7-percent discount rate is −$4.0 million. The table below, taken from the final Regulatory Evaluation, summarizes the monetized costs and benefits of the rule.

B. Executive Order 13132 (Federalism)

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

C. Executive Order 13175

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

D. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities. We note that while the Regulatory Flexibility Act does not apply to foreign entities, we have examined the effects of this rule not only on U.S. airports and air carriers that are small entities under applicable regulatory provisions, but on small foreign carriers as well. The Web site accessibility requirements do not impact small U.S. and foreign carriers. Only carriers that operate at least one aircraft having a seating capacity of more than 60 passengers are required to make their Web sites accessible to passengers with disabilities and ensure that they provide Web-based discounts and waive any telephone or walk-in reservation fees for individuals unable to use their Web site due to a disability.

This final rule also requires small U.S. and foreign carriers that own, lease, or operate proprietary or shared-use automated kiosks at U.S. airports with 10,000 or more annual enplanements to install accessible models at each U.S. airport kiosk location starting three years after the rule's effective date until at least 25 percent of automated kiosks provided at each location are accessible and provide all the same functions as the inaccessible kiosks at each location. The same requirement applies to operators of U.S. airports with 10,000 or more annual enplanements that own, lease, or operate shared-use automated kiosks. Research for our initial regulatory flexibility analysis identified no small carriers or small airport authorities covered by the proposed accessibility requirements that owned or operated kiosks. Moreover, we received no comments on the proposed requirements during the SNPRM public comment period from small carriers (those exclusively operating aircraft with 60 or fewer seats), small airport authorities (those publicly owned by jurisdictions with fewer than 50,000 inhabitants or privately owned by small entities with annual revenues of $30 million or less under the Small Business Administration (SBA) size standard), or other stakeholders that are small entities. For this final rule, therefore, we conducted no further analysis on the impact of the kiosk accessibility requirements on small entities.

On the basis of the examination discussed above, the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. A copy of the Final Regulatory Flexibility Analysis has been placed in docket.

E. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA), a Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget (OMB) (Pub. L. 104-13, 49 U.S.C. 3501 et seq.). The Department may not impose a penalty on persons for violating information collection requirements when an information collection required to have a current OMB control number does not have one.

The final rule contains two new information collection requirements that require approval by OMB under the PRA. Specifically, section 382.43 requires carriers to provide a mechanism on their Web sites for passengers to provide online notification of their requests for disability accommodation services (e.g., enplaning/deplaning assistance, deaf/hard of hearing communication assistance, escort to service animal relief area, etc.) within two years after the effective date of this final rule. Section 382.43 also requires carriers to ensure that a disclaimer is activated when a user clicks a link on a primary Web site to embedded third-party software or an external Web site. The disclaimer must inform the user that the software/Web site is not within the carrier's control and may not follow the same accessibility policies.

As required by the PRA, the Department invites interested persons to submit comments on any aspect of these information collections for 60 days, including the following: (1) The necessity and utility of the information collection, (2) the accuracy of the estimate of the burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) ways to minimize the burden of collection without reducing the quality of the collected information. Organizations and individuals desiring to submit comments on these information collection requirements should direct them to the Office of Management and Budget, Attention: Desk Officer for the Office of the Secretary of Transportation, Office of Information and Regulatory Affairs, 725 17th Street NW., Washington, DC 20503, and should also send a copy of their comments to: Department of Transportation, Office of Aviation Enforcement and Proceedings, Office of the General Counsel, 1200 New Jersey Avenue SE., Washington, DC 20590.

As noted above, the first of these two new information collections is mandated by the requirement that carriers that market air transportation online to customers in the U.S. make a disability accommodation service request function available on their primary Web site within two years after the effective date of this rule. The types of accommodations a passenger with a disability may request through the function would most often include, but are not limited to, wheelchair assistance, seating accommodation, escort assistance for a visually impaired passenger, and stowage of an assistive device. Carriers are permitted to require that a passenger with a disability provides his/her contact information (e.g., telephone number, email address) when making an online service request.

The Department anticipates that carriers will create a form that contains 1) check boxes corresponding to a listing of the current IATA disability-related Special Service Request (SSR) codes currently used to flag electronic ticket records of passengers requesting assistance, 2) fields for passenger contact information to verify requested services, and 3) an open text box to describe the specific needs and the services being requested. We anticipate that each covered U.S. and foreign carrier that markets scheduled air transportation to the general public in the United States would incur initial costs associated with developing and reviewing the design and implementation plan for the request form, developing, coding, and integrating the form into the Web site, as well as testing, debugging, and connecting the form with a backend database to store the information. None of these initial costs involve recordkeeping or reporting activities under the meaning of the PRA. The revised final regulatory analysis (FRA) estimates that it will take an average of 32 labor hours per carrier to develop, implement, integrate, connect, and test the online request form. Up to 28 additional hours eventually may be needed to revise request-handling procedures and to train staff in the changes resulting from the new form. Should carrier associations or some other entity develop a common request form that all carriers could adapt and incorporate to their Web sites, the initial costs per carrier would be reduced.

The second information collection is a requirement for carriers to provide a disclaimer notice for each link on its primary Web site that enables a user to access software or an external Web site that may not follow the same accessibility policies as the primary Web site. The disclaimer notice must be activated the first time a user clicks such a link before beginning the software download or transferring the user to the external Web site. We anticipate that each covered U.S. and foreign carrier that markets scheduled air transportation to the general public in the United States will incur initial costs associated with identifying all links on the Web site that may require a disclaimer, developing and reviewing the design and language for the disclaimer notice, as well as developing, testing, and deploying the code that provides this notice to Web site visitors. However, none of these initial costs involves recordkeeping or reporting activities under the meaning of the PRA. The incremental labor hours associated with providing the required disclaimer may vary depending on the number of links on the Web site to which this requirement applies. The revised FRA estimates that it will take an average of 6 labor hours per carrier to develop, test, and deploy the disclaimer notice.

The title, a description of the respondents, and an estimate of the annual recordkeeping and periodic reporting burden are set forth below for each of these information collections:

1. Requirement to make a disability accommodation service request function available on the primary Web site.

Respondents: U.S. and foreign air carriers that own or control a primary Web site that markets air transportation within, to, or from the United States, or a tour (i.e., a combination of air transportation and ground or cruise accommodations), or a tour component (e.g., a hotel stay of a tour) that includes air transportation within, to, or from the United States, and that operate at least one aircraft with a seating capacity of more than 60 passengers.

Estimated Annual Burden on Respondents: 32 hours.

Estimated Total Annual Burden: 3,552 hours.

Frequency: One time.

2. Requirement to provide a disclaimer notice to users when clicking a link on a primary Web site to embedded third-party software or an external Web site.

Respondents: U.S. and foreign air carriers that own or control a primary Web site that markets air transportation within, to, or from the United States, or a tour (i.e., a combination of air transportation and ground or cruise accommodations), or a tour component (e.g., a hotel stay of a tour) that includes air transportation within, to, or from the United States, and that operate at least one aircraft with a seating capacity of more than 60 passengers.

Estimated Annual Burden on Respondents: 6 hours.

Estimated Total Annual Burden: 666 hours.

Frequency: One time.

F. Unfunded Mandates Reform Act

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