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

Request for Clarification and Extension of Comment Period

In October 2011, the Department received a joint request from the Air Transport Association (now Airlines for America), the International Air Transport Association, the Air Carrier Association of America, and the Regional Airline Association for clarification of the proposal and a 120-day extension of the comment period. The carrier associations specifically asked DOT to clarify the following with regard to our Web site accessibility proposals: 1) whether the scope of the proposed Web site accessibility requirements included the non-U.S. Web sites of U.S. carriers (e.g., country-specific Web sites maintained by U.S. carriers for the purpose of selling to consumers in countries other than the United States); 2) the meaning of the terms “primary,” “main,” and “public-facing” as used in the proposed Web site requirements; 3) whether the term “alternate conforming version” as described in the SNPRM would encompass “text-only” features offered by some carriers on their primary Web sites; 4) whether carriers would be responsible under the proposed requirement to ensure that the Web sites of large tour operators and carrier alliances are accessible; 5) the Department's authority to regulate ticket agent Web sites directly under 49 U.S.C. 41712, rather than indirectly through the carriers under the ACAA; and 6) the basis for our estimates of the recurring costs associated with maintaining Web site accessibility. Regarding the Department's kiosk accessibility proposals, the carrier associations asked for clarification concerning: 1) whether the Department intended to require some retrofitting of automated airport kiosks in the final rule in the absence of a specific proposal on the issue in the SNPRM; and 2) whether automated ticket scanners at U.S. airports would be covered by the proposed accessibility requirements. We received additional requests shortly thereafter from the Association of Asia Pacific Airlines (AAPA) and the Interactive Travel Services Association (ITSA) to extend the comment deadline.

By early November 2011, members of the disability community and advocacy organizations were also requesting that we delay the closing of the comment period until accessibility issues concerning the comment form available at www.regulations.gov could be resolved. In response, we sought expedited action from the Regulations.gov workgroup to correct the accessibility problems with the form and issued a notice in the Federal Register on November 21, 2011, outlining alternative methods for submitting comments until the comment form could be made fully accessible. See 76 FR 71914 (November 21, 2011). This notice also addressed the carrier associations' clarification requests and extended the public comment period until January 9, 2012.

We responded to the carrier associations' inquiries concerning our Web site accessibility requirements by explaining that it was our intention to exclude from the accessibility requirements both U.S. and foreign air carrier Web sites that market air transportation solely to consumers outside of the United States. We also further defined “public-facing” Web pages as those on a carrier's or agent's Web site intended for access and use by the general public rather than for limited access (e.g., by carrier employees only). For carriers that own, lease, or control multiple Web sites that market air transportation and offer related services and information, we explained that its “primary” or “main” Web site is the one accessed upon entering the uniform resource locator “www.carriername.com” in an Internet browser from a standard desktop or laptop computer. We note that some carriers use their IATA airline designator code or other convention in their primary Web site URL (e.g., www.aa.com, www.virgin-atlantic.com). We further explained that a carrier's text-only Web page may only be considered a conforming alternate version if (1) it provides the same content and functionality as the corresponding non-conforming page on the carrier's primary Web site, (2) it can be reached via an accessible link from the primary Web site, (3) the content conforms with WCAG 2.0 Level A and AA success criteria, and (4) it is promptly updated to reflect all changes to content available to its non-disabled customers on the primary Web site. In response to the request for clarification regarding the applicability of the accessibility requirements to ticket agent Web sites, we also explained that the requirements would apply to Web sites of large tour operators, since both travel agents and tour operators fall within the definition of ticket agent found in 49 U.S.C. 40102(a)(45). Carrier alliance Web sites, on the other hand, are operated by carriers but are not primary carrier Web sites and therefore would not be covered.

Regarding the question raised about the Department's assertion of its authority to regulate ticket agents directly while proposing to regulate ticket agents indirectly through the carriers, we stated that it was our intention to gather more information from the public about the course of action that would best serve the public interest. We stated in the notice that the Department's authority under 49 U.S.C. 41712 extends to unfair practices, including discrimination against a protected class of consumers by ticket agents, ⁽³⁾ in this case discrimination against individuals with disabilities who are excluded from using the agents' inaccessible Web sites solely due to their disabilities. We acknowledged that the Department of Justice (DOJ) was also likely to mandate that ticket agents make their Web sites accessible under a future amendment to that agency's rule implementing title III of the ADA. At the same time, we stated our intention to pursue a regulatory approach vis-à-vis the accessibility of ticket agent Web sites that would best serve the goal of achieving Web site accessibility for all in the shortest reasonable time frame. Finally, we corrected the errors in the SNPRM and preliminary regulatory evaluation concerning the estimated annual cost of maintaining Web site accessibility and re-explained the basis of the cost estimate.

Regarding the carrier associations' inquiries about our proposals concerning accessible automated airport kiosks, we explained that: (1) Although we did not propose to require retrofitting of existing kiosks, we were seeking information about the technical feasibility and cost impact of retrofitting some number of kiosks before the end of their life cycle if that should be necessary to ensure at least some accessible kiosks in every location at the airport within a reasonable time after the rule goes into effect; and (2) automated ticket scanners would fall within the scope of automated kiosks the Department intended to cover under the proposed requirements.

The Department received 84 comments on issues raised in the SNPRM from industry and advocacy organizations, academic institutions, and members of the public. The industry comments included: two from airline associations (the Association of Asia Pacific Airlines (AAPA), as well as a joint submission by Airlines for America (A4A), the International Air Transport Association (IATA), Regional Airline Association (RAA) and Air Carrier Association of America that also included comments from the Airports Council International—North America (ACI-NA)), two from airports (San Francisco International and Denver International), three from U.S. carriers (Spirit Airlines, Allegiant Air, LLC, and Virgin America), four from foreign air carriers (Air New Zealand Limited, All Nippon Airways, Condor Flugdienst GmbH, and El Al Israel Airlines Ltd.), four from travel agency or tour operator associations (a joint submission by the American Society of Travel Agents (ASTA) and the National Tour Association (NTA), a joint submission by NTA and Student and Youth Travel Association (SYTA), as well as separate submissions by the Interactive Travel Services Association (ITSA), and the United States Tour Operators Association (USTOA)), and one from a trade association representing leading companies in the information and communication technology sector (Information Technology Industry Council (ITI)). Advocacy organization comments included one airline passenger consumer organization (Association for Airline Passenger Rights) and 11 submissions from disability advocacy organizations (a joint submission by the American Council of the Blind (ACB) and American Foundation of the Blind (AFB), Consortium for Citizens with Disabilities (CCD), a joint submission by the National Association of the Deaf (NAD), Deaf and Hard of Hearing Consumer Advocacy Network (DEAFCAN), Telecommunications for Deaf and Hard of Hearing, Inc. (TDHH), Association of Late-Deafened Adults, Inc. (ALDA), Hearing Loss Association of America (HLAA), and California Coalition of Agencies Serving the Deaf and Hard of Hearing (CCASDHH), and individual submissions by Disability Rights New Jersey (DRNJ), Silicon Valley Independent Living Center (SVILC), National Federation of the Blind (NFB), United Spinal Association (United Spinal), Association of Blind Citizens (ABC), National Council on Independent Living (NCIL), American Association of People with Disabilities (AAPD), Paralyzed Veterans of America (PVA), and Open Doors Organization (ODO)). Comments from academic institutes included one each from the Burton Blatt Institute (BBI) at Syracuse University, the Department of Computer and Information Sciences at Towson University, and the Trace Research and Development Center (Trace Center) at the University of Wisconsin, and two from the Cornell e-Rulemaking Initiative (CeRI) at Cornell University. There were also 22 individual and joint submissions from students at the University of Pittsburgh School of Law. Nearly 30 individual members of the public also posted comments, 21 of whom identified themselves as persons with disabilities or relatives of the same.

One submission from the Cornell e-Rulemaking Initiative consisted of summaries of the public discussion on the SNPRM proposals that occurred on its Regulation Room Web site, http://www.regulationroom.org. The Regulation Room Web site is a pilot project in which members of the public can learn about and discuss proposed Federal regulations and provide feedback to agency decision makers. The Department partnered with Cornell University on this open government initiative of the Obama administration in order to discover the best ways to use Web 2.0 and social networking technologies to increase effective public involvement in the rulemaking process. During the period the SNPRM was available for comment on the Regulation Room Web site, there were nearly 8,000 unique visitors to the site. Those who registered to participate in the discussion totaled 53 and of those, 29 identified as having a disability. A total of 103 comments were posted by 31 of the 53 registered respondents, with 18 comments submitted by respondents identifying as having a disability. The Regulation Room submitted summaries to the Department of the online discussions addressing the accessibility standards, applicability, scope of the requirements, benefits and costs, and implementation approach of the proposed accessibility requirements for both Web sites and kiosks.

The Department has carefully reviewed and considered all the comments received. A summary of the proposed requirements and related questions asked in the SNPRM, the public comments responsive to those proposals, and the Department's responses are set forth in the sections that follow.