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

Web Site Accessibility

In the September 2011 SNPRM, we proposed to require that U.S. and foreign air carriers ensure that the public-facing content of a primary Web site they own or control that markets air transportation  ⁽⁴⁾ to the general public in the United States conforms to the WCAG 2.0 Success Criteria and all Conformance Requirements at Level A and Level AA. We explained that the proposed requirements would apply to foreign carriers only with respect to public-facing pages on Web sites they own or control that market air transportation to the general public in the United States and made clear in the November 2011 notice that this same limitation would apply to U.S. carriers as well. For both U.S. and foreign carriers, our intent was to exclude from coverage public-facing content on primary Web sites they own or control that market flights to the general public outside of the United States. We explained that the characteristics of a covered primary Web site that markets air transportation to the general public inside the United States includes, but is not limited to, a site that: (1) Contains an option to view content in English, (2) advertises or sells flights operating to, from, or within the United States, and (3) displays fares in U.S. dollars. We note that non-English (e.g., Spanish) Web sites targeting a U.S. market segment would also be covered; whereas Web sites that block sales to customers with U.S. addresses or telephone numbers, even if in English, would not. We also stated our intention to continue requiring carriers to make applicable discounted Web-based fares and other Web-based amenities available to passengers who self-identify as being unable to use an inaccessible Web site due to their disability and to extend the requirement to do the same for passengers who self-identify as being unable to use the carrier's Web site that meets the WCAG 2.0 standard due to their disability.

In addition to the content on their primary Web sites, the Department proposed to require U.S. and foreign carriers to ensure that when their ticket agents are providing schedule and fare information and marketing covered air transportation services to the general public in the United States on Web sites, that these ticket agent Web sites also meet the WCAG 2.0 standard. We proposed to limit the scope of the carriers' responsibility to ensure agent Web site accessibility to the Web sites of agents that are not small businesses as defined by the Small Business Administration under 13 CFR 121.201 (i.e., travel agents or tour operators with annual receipts exceeding $19 million). Specifically with regard to small ticket agents, we proposed to permit carriers to market air transportation on the inaccessible Web sites of such agents but at the same time require carriers to ensure that those small agents make Web-based discount fares available and waive applicable reservation fees to a passenger who indicates that he or she is unable to use an agent's Web site and purchases tickets using another method, unless the fee would apply to other customers purchasing the same ticket online.

Finally, we proposed a tiered implementation approach in which the WCAG 2.0 standard at Level A and AA would apply to (1) a new or completely redesigned primary Web site brought online 180 or more days after the effective date of the final rule; (2) Web pages on an existing Web site associated with core air travel services and information  ⁽⁵⁾ to be conformant either on a primary Web site or by providing accessible links from the associated pages on a primary Web site to corresponding accessible pages on a mobile Web site by one year after the final rule's effective date; and (3) all covered Web pages on a carrier's primary Web site by two years after the final rule's effective date.

1. Technical Standard for Web Site Accessibility

The SNPRM: The Department proposed WCAG 2.0 at Level AA (Level AA includes all the Level A success criteria) as the required accessibility standard for all public-facing Web pages involved in marketing air transportation to the general public in the United States on primary carrier and ticket agent Web sites.

Comments: The comments submitted jointly by A4A, IATA, ACI-NA, RAA, and the Air Carrier Association of America opposed mandating a single technical standard for Web site accessibility. They supported various compliance options that, for the most part, would provide increased access for passengers with disabilities to some, but not all, of the content on primary carrier Web sites through an alternative text-only or Mobile Web site conformant with any of the following standards: WCAG 1.0, WCAG 2.0 at Level A, existing Section 508 standards, or Mobile Web Best Practices (MWBP) 1.0 (if applicable). Two of the options they proposed would allow carriers to establish an alternative Web site (i.e., text-only or mobile Web site) containing only the proposed core air travel information and essential functions to which they would apply the accessibility standard of their choice. Two other options they proposed would allow them to apply the standard of choice to limited portions of a carrier's primary Web site (i.e., either to newly designed Web pages or to Web pages associated with core air travel services and information). These compliance options proposed by the carrier associations, as well as other electronic information and communication technology issues discussed in the SNPRM, are presented in greater detail below in the section on Scope. Regarding compliance with the WCAG 2.0 standard at Level AA, the carrier associations asserted that requiring carriers to comply with WCAG 2.0 would “set a very high bar that exceeds federal government Web site accessibility requirements.” They commented that no government agency currently is required to meet the WCAG 2.0 Level A and AA standards, maintaining that the section 508 Web site standard agencies are required to meet is the equivalent of the WCAG 1.0 standard. ⁽⁶⁾ They argued that the airline industry should not be the “test case” or the first to implement WCAG 2.0.

Although the Association of Asia Pacific Airlines (AAPA) did not specifically oppose the WCAG 2.0 standard, they noted that requiring airlines to apply the standard to primary Web sites which include covered and non-covered content could result in the airlines having to revamp Web pages and shared electronic data sources outside the scope of the requirement from which the covered Web sites obtain information. This concern was echoed by foreign carriers that commented individually, although none of the comments provided any information about the amount of non-covered content they anticipated having to change. AAPA also expressed concern that foreign carriers may eventually be required by the law of their countries to meet a different Web site accessibility standard. Another carrier commenting individually supported compliance with the WCAG 2.0 Level A standard but only for those portions of its Web site involved in providing core air transportation information and functions. Other carriers objected to the Department requiring the WCAG 2.0 standard altogether, opining that it is “not widely used on commercial Web sites” or that the technical criteria are “highly subjective.” One U.S. carrier was unopposed to the WCAG 2.0 Level AA standard as long as the Department allowed two years to achieve compliance.

The American Aviation Institute (AAI) supported the Department's proposal to require conformance with the WCAG 2.0 Level AA, but again, only on those pages involved with providing core information and functions. The Information Technology Industry Council (ITI), representing 50 leading companies in the information and communications technology industry, urged the Department not to require any technical standard other than WCAG 2.0, stating: “WCAG 2.0 is the most current and complete standard for web accessibility and is expected to be the basis for the updated Section 508 also. For harmonization purposes, ITI strongly recommends only accepting WCAG 2.0.”

With rare exception, individual commenters who self-identified as having a disability supported WCAG 2.0 as the applicable standard for Web site accessibility. Virtually all advocacy organizations representing individuals with disabilities across the spectrum also supported WCAG 2.0, with more than half specifically endorsing the Level AA success criteria as the appropriate standard. All of the advocacy organization commenters representing individuals who are blind, deaf, or hard of hearing specifically endorsed the Level AA success criteria. ACB and AFB also urged the Department to adopt the Authoring Tools Accessibility Guidelines (ATAG) 1.0, a World Wide Web Consortium  ⁽⁷⁾ (W3C) guideline that defines how authoring tools should assist Web developers in producing Web content that is accessible and conforms to WCAG. (ATAG will be discussed in a later section on Implementation Approach and Schedule.) There were a few comments suggesting that all Level A success criteria and only selected criteria from Level AA be required.

The leading commenters representing ticket agents (ASTA, NTA, USTOA, and ITSA) felt strongly that the Department should refrain from requiring carriers to ensure that their agent Web sites conform to the WCAG 2.0 standard or any other specific accessibility standard at this time. ITSA, in particular, advocated that the Department allow carriers, as well as agents, to adopt any acceptable standard at any compliance level. Citing the DOJ's concurrent rulemaking concerning Web site accessibility standards applicable to entities covered under ADA title III regulations, ⁽⁸⁾ ticket agent commenters also urged that both agencies coordinate the technical accessibility criteria each intends to apply so that Web site accessibility requirements are consistent. A number of these commenters felt that the Department should postpone imposing a Web site accessibility standard for ticket agent Web sites until the DOJ rulemaking is completed.

DOT Decision: After considering the arguments raised by the carrier and ticket agent associations to postpone requiring any standard until after the DOJ rulemaking on Web site accessibility is complete, we have concluded that there is no compelling reason to defer promulgating a WCAG 2.0 based standard applicable to the Web sites of carriers. Since WCAG 2.0 is by far the front-runner among the existing accessibility standards world-wide, and both the Access Board and the Department of Justice have sought public comment on incorporating WCAG 2.0 technical criteria into the existing section 508 standard or directly adopting the standard, ⁽⁹⁾ the Department believes there is ample justification for adopting WCAG 2.0 at Level AA as the accessibility standard for carrier Web sites that market air transportation to the public in the United States.

We note that well before DOT published its SNPRM in September 2011, both DOJ and the Access Board had embarked upon rulemakings that address Web site accessibility standards. The DOJ rulemakings sought comment on the standard for Web site accessibility it should adopt for entities covered by ADA titles II and III. ⁽¹⁰⁾ Specifically, DOJ asked whether it should adopt the WCAG 2.0 Level AA success criteria, whether it should consider adopting another WCAG 2.0 success criteria level, or whether it should instead adopt the section 508 standards rather than the WCAG 2.0 guidelines as the applicable standards for Web site accessibility. In addition, the Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) recommended to the Access Board that the Section 508 standard be harmonized with WCAG 2.0. ⁽¹¹⁾ The Access Board, in turn, sought public comment in two successive advance notices of proposed rulemaking on adopting WCAG 2.0 as the successor to the current section 508 standards for Web content, forms and applications. ⁽¹²⁾

This consensus is corroborated by many indicators that WCAG 2.0 is the most robust and well supported accessibility standard currently in use. The developers of WCAG 2.0 have made an array of technical resources available on the W3C Web site at no cost to assist companies in implementing the standard.

In addition, foreign governments increasingly are adopting WCAG 2.0 Level AA either as guidelines for evaluating nondiscrimination in providing Web site access  ⁽¹³⁾ or as the official legal standard for accessibility on government Web sites. ⁽¹⁴⁾ Australian government agencies are currently required to be compliant at WCAG 2.0 Level A and upgrade to Level AA by December 31, 2014. ⁽¹⁵⁾ In August 2011, the Canadian government adopted a requirement for government agencies to bring most content on their public Web sites into compliance with the WCAG 2.0 Level AA standard by July 31, 2013. ⁽¹⁶⁾ The Canadian government also released a resource tool in March 2013, to assist air terminal operators in implementing the government's voluntary Code of Practice on accessibility of non-national airports system air terminals. ⁽¹⁷⁾ The guidance recommends that terminal operators conform their Web sites to the WCAG 2.0 standard. All official Web sites of the European Union institutions are currently expected to follow the WCAG 1.0 guidelines for accessible Web content, and the EU Commission has proposed to require 12 categories of EU public sector Web sites to meet WCAG 2.0 at Level AA by December 31, 2014. ⁽¹⁸⁾ Hong Kong government sites are currently required to meet the WCAG 2.0 at Level AA. ⁽¹⁹⁾ New Zealand government sites must meet the same standards by July 1, 2017, with some limited exceptions. ⁽²⁰⁾ France and Germany have national standards that are based on, but not identical to, WCAG 2.0 (Level AA), while United Kingdom government Web sites are required to comply with either WCAG 1.0 or 2.0 at the AA level. ⁽²¹⁾ The European Telecommunications Standards Institute (ETSI) is seeking public comment on a draft proposal to adopt harmonized accessibility standards for European public information and communication technology (ICT) procurements that specifically proposes WCAG 2.0 Level AA as the Web content accessibility standard. ⁽²²⁾

The Department considered requiring conformance with WCAG 2.0 Level A success criteria only, which are feasible standards for Web developers and would ensure the removal of major accessibility barriers. Level AA, however, contains additional guidelines and recommendations that provide a more comprehensive level of Web site accessibility for people with various types of disabilities. Examples of Level AA success criteria that provide additional access beyond what Level A provides include minimum contrast ratios for regular and large text, capability to resize text, consistent order of the navigation links that repeat on Web pages when navigating through a site, and the availability of multiple ways for the users to find Web pages on a site. As the foregoing discussion on government Web site accessibility standards indicates, the Level AA success criteria are widely regarded as feasible for Web content developers to implement. Moreover, the Level AA success criteria appear to be most often specified when conformance with WCAG is required and are most often adopted when Web sites voluntarily use WCAG. ⁽²³⁾ Level AAA success criteria, while providing a high level of accessibility, are not recommended for entire Web sites because they are much more challenging to implement and all criteria cannot be satisfied for some Web content. ⁽²⁴⁾ For these reasons, the Department is persuaded that Level AA is the compliance level that can provide the highest practicable level of Web site accessibility.

Regarding the carrier associations' assertion that requiring airlines to comply with the WCAG 2.0 standard sets “a very high bar that exceeds federal government Web site accessibility requirements,” we believe they overstate the actual differences between the section 508 and WCAG 2.0 standards. From a practical standpoint, WCAG 2.0 success criteria largely standardize best practices that were developed in response to the requirements of the current section 508 standards. In addition, WCAG 2.0 success criteria that do not correspond to the current section 508 standards were developed to address perceived gaps and deficiencies in the current section 508 standards. Overall, the WCAG 2.0 success criteria spell out more specific requirements for aspects of the Web site coding function than section 508 provides, such as consistent identification of functional elements that repeat across Web pages, specific standards for color contrast, multimedia player controls, and compatibility with assistive technology.

2. Usability and Performance Standards

The SNPRM: In the September 2011 SNPRM preamble, we asked for comment on whether we should adopt a performance standard in lieu of or in addition to the proposed technical standards in the final rule, as well as on the types and versions of assistive technologies to which performance standards should apply. We also sought comment on the feasibility and value of requiring airlines to seek feedback from the disability community on the accessibility of their Web sites through periodic monitoring and feedback on their usability. In addition, we wanted to know whether the Department should require carriers to develop guidance manuals for their Web site developers on implementing the WCAG 2.0 standard so that their Web sites are functionally usable by individuals with disabilities.

Comments: Disability advocacy organizations strongly urged the Department to adopt a set of performance standards in addition to the WCAG 2.0 Level AA technical standard. ACB and AFB advocated the adoption of a general performance standard consistent with the broader accessibility standard of effective communication articulated in the DOJ ADA title II and III regulations. ⁽²⁵⁾ They argued that mere compliance with the technical standards would not be enough to ensure that Web sites would be fully accessible to people with disabilities. NFB, ABC, NCIL, CCD, and BBI also supported pairing the WCAG technical standard with a performance standard to ensure accessibility and usability by a range of individuals with sensory, physical, and cognitive disabilities. Acknowledging the difficulty of measuring performance standards, NCIL suggested several possible measures, including the rate of success of users with disabilities in accomplishing various tasks on the Web site, the average time it takes for a group of users with disabilities to accomplish a task as compared to a group of non-disabled users, and required compatibility of a Web site with the most widely used accessibility software and technologies to ensure usability by as many people as possible.

While most industry commenters did not specifically address performance standards, the carrier associations opposed the adoption of any kind of prescriptive standard, including specific performance standards. ITSA noted that making Web pages accessible involves performance trade-offs and that imposing rigid performance standards would result in costs and technical challenges that may not be feasible. The Cornell e-Rulemaking Initiative (CeRI), an academic initiative working to facilitate public comment on DOT rulemakings, sought to conform its Web site to WCAG 2.0 at Level AA in preparation for soliciting public comments on DOT's rulemaking on Web site and kiosk accessibility. Their experience led them to conclude that applying performance standards broadly may have limited usefulness. They note, for example, that performance standards are typically developed based on a specific version of a specific assistive technology used to access Web sites and therefore are not useful for testing earlier versions of the technology (e.g., a Web site that meets a performance standard accessed by a user with the latest version of JAWS screen reader software may not meet the performance standard if accessed using an earlier version of the software). They also noted that with regard to specific assistive technologies, compatibility with evolving technical standards and user proficiency has an impact on whether performance standards are helpful in testing the usability of a Web site. ITI expressed concern about the many questions related to specific combinations of browsers, operating systems, assistive technologies, and disability types that would need to be considered and the cost impact of developing and testing specific performance standards. As an alternative, ITI suggested introducing a mechanism for end users of a Web site that already meets the WCAG 2.0 technical standard to be able to report on specific accessibility issues encountered on that Web site.

BBI supported a requirement for carriers to develop internal guidance manuals, pointing out that such documents are useful for training new or temporary employees on implementing the standard and preventing new accessibility barriers on the Web site. CCD stated that DOT should act now to develop guidance for carriers on how to implement technical accessibility standards so that their Web sites will be functionally usable. DRNJ, on the other hand, noted that since a substantial amount of free training and guidance materials are presently available online, a requirement for each carrier to develop its own guidance manual would appear to be unnecessary. They recommended that if there is a need for airline-specific material, the Department should contract with a university or other provider to create a national center for training and technical assistance. The carrier associations felt that requiring carriers to produce a guidance manual would further burden staff members already busy implementing other passenger protection requirements.

DOT Decision: The Department is persuaded that adopting specific performance standards at this time is premature. We strongly believe that specific measures to ensure the usability of Web sites that meet the WCAG 2.0 standard are necessary, however. We therefore are requiring carriers to consult with members of the disability community to test and provide feedback on the usability of their Web sites before the applicable compliance deadline. A carrier is not required to pay a group or individual representing a disability type to test its Web site. Although we believe that it is very unlikely that a carrier would be completely unable to find anyone with whom to consult, if after making a reasonable effort a carrier is unable to find a person or group representing a disability type that will test the carrier's Web site at no expense to the carrier and within a reasonable time period, the carrier has fulfilled its obligation with respect to the requirement.

It is worth noting that the Department has required consultation with disability organizations in implementing certain provisions of its disability regulation (14 CFR part 382) since March 1990. In the March 1990 final rule, the Department mandated that airlines consult with organizations representing persons with disabilities in developing their employee training programs. In the preamble to this 1990 final rule, we explained that “[t]he Department continues to believe that disability groups are a major resource for carriers, to help them devise practical and comprehensive procedures for accommodating passengers with a wide variety of disabilities. Consultation basically means making reasonable efforts to obtain the views of disability organizations: there is no list of organizations or type of contacts that the rule specifically mandates.” See 55 FR 8008, 8043 (March 6, 1990).

More recently, we refined this requirement in the May 2008 final rule in response to concerns raised by foreign carriers. In their comments on the 2004 Foreign Carriers NPRM, some foreign carriers objected to consulting with disability groups, saying that the requirement should be waived if they could not find a local disability group to consult. Disability groups responded to these comments by suggesting that such a waiver was unnecessary because the U.S.-based staff of the airline could consult with U.S. groups if necessary. The following excerpt from the preamble to the 2008 final rule discusses the Department's decision regarding changes to the consultation requirement: “While U.S. disability groups can undoubtedly be a useful resource for both U.S. and foreign carriers, we do not believe it would be realistic to require foreign carriers to seek out U.S. disability groups for consultation (in many cases, U.S.-based personnel of these carriers would be operations staff, not management and training officials). Consequently, we have modified the language of this provision to refer to seeking disability groups in the home country of the airline. If home country disability groups are not available, a carrier could consult individuals with disabilities or international organizations representing individuals with disabilities. We do not believe that a waiver provision is needed, since it is unlikely that a carrier would be completely unable to find anyone—home country or international disability groups, individuals with disabilities—with whom to consult. As a matter of enforcement policy, however, the Department would take into consideration a situation in which a carrier with an otherwise satisfactory training program documented it had made good faith efforts to consult but was unable to find anyone with whom to consult.” 73 FR 27614, 27643 (May 13, 2008). The Department also already requires U.S. and foreign carriers to consult with local service animal training organization(s) in providing animal relief areas for service animals at U.S. airports.

Similarly, in this final rule, the Department is requiring carriers to consult with individuals with visual, auditory, tactile, and cognitive disabilities or organizations representing these disability types (e.g., American Federation of the Blind, National Federation of the Blind, National Association of the Deaf, Arthritis Foundation, United Cerebral Palsy, The Arc, etc.) in testing the usability of their Level AA-compliant Web sites. Carriers may consult with any individuals and/or local, national, or international disability organizations whose input collectively can help them determine how effectively their accessible Web site addresses the functional limitations of people with visual, auditory, tactile, and cognitive disabilities. To the extent that individuals on a carrier's disability advisory board represent these disability types, the carrier may consult with those individuals to satisfy the requirement. For disabilities of the types listed above that are not represented on their advisory boards, carriers will be obliged to consult with outside individuals or organizations representing those disability types. We believe that it is very unlikely that a carrier would be completely unable to find anyone with whom to consult—either unaffiliated individuals with disabilities or members of a home country or international disability group—that represent these disability types and who use or want to use a carrier's Web site. As a matter of enforcement policy, however, the Department would take into consideration a situation in which a carrier documented that it had made good faith efforts but was unable to find a group or individual willing or able to consult within a reasonable time period. While the consultation requirement does not mandate that carriers modify their Web sites using all the feedback obtained from the consultations, we encourage carriers to make any changes necessary to ensure access by people with these functional limitations to the extent that such changes are not unduly burdensome to implement.

We note that although the WCAG 2.0 standard is geared to making Web sites accessible to a wide range of individuals with disabilities, the developers of WCAG 2.0 emphasize that the guidelines are not able to address the needs of people with all types, degrees, and combinations of disability. Some disability advocates have criticized WCAG 2.0 as falling short in providing equal accessibility for individuals with cognitive disabilities. ⁽²⁶⁾ These advocates observe that certain WCAG 2.0 Level A and Level AA success criteria target certain accessibility issues such individuals face (e.g., Success Criterion 2.2.1—Adjustable Timing, 2.4.7—Focus Visible such that any keyboard operable user interface has a mode of operation where the keyboard focus indicator is visible, 3.3.1—Error Identification, 3.3.3—Error Suggestion, and 3.3.4—Error Prevention). The advocates note, however, that the most significant issues such as difficulty comprehending text are addressed by optional Level AAA success criteria. Those criteria include Success Criterion 3.1.5—Reading Level that requires supplementary content or a version of the content that does not require reading ability greater than lower secondary level, and Success Criterion 1.4.8—Visual Presentation requiring unjustified text, text width no more than 80 characters, line spacing of at least one and a half lines within paragraphs, capabilities for users to select text and background colors and resize text up to 200%, and other features to assist with difficulties in tracking and comprehending text. With nearly 5% of the U.S. population reporting some kind of cognitive disability in 2011, ⁽²⁷⁾ the Department acknowledges that even the best accessibility standards currently available fall short of providing the accessibility needed by many individuals with cognitive impairments. We are nonetheless encouraged that the WCAG developers recognize these needs and support additional measures to advance cognitive, language, and learning access that can be taken within WCAG 2.0 itself and other ways that go beyond what can go into the standard. ⁽²⁸⁾ As efforts to improve accessibility for different kinds of disabilities continue, usability testing with individuals representing a variety of disabilities will help in the interim to improve access until measurable success criteria to address specific unmet needs can be developed. We believe that the usability testing strikes a balance between taking reasonable steps to ensure usability, while limiting the potentially significant costs of meeting performance standards having minimal usefulness to individuals with disabilities. The Department encourages disability advocacy organizations to work with carriers to provide Web site usability feedback, both during the development and testing process and after the accessible Web site has been published.

With regard to adopting a requirement for carriers to develop guidance manuals, the Department concurs that the benefits do not outweigh the costs. There is an abundance of readily available guidance on the W3C Web site with detailed information on implementing and testing each of the technical criteria for each WCAG 2.0 conformance level. In addition, consultation with members of the disability community on the usability of conformant Web sites will enhance the available technical guidance and ensure that carriers have practical feedback to guide their efforts. As Web content is updated and Web development standards evolve, we encourage carriers to continue soliciting feedback from users with disabilities as the best way to ensure the ongoing accessibility and usability of their Web sites.

3. Scope—Web Sites and Other Electronic Information and Communication Technologies

The SNPRM: Our proposal to require carrier Web site accessibility was limited to all public-facing content on a carrier's primary Web site marketing air transportation to the general public in the United States. We did not propose to apply the accessibility standard to any other Web site a carrier may own, lease, or control (e.g., a mobile Web site) or to primary carrier Web sites marketing flights exclusively to the public outside of the United States. The Department asked for comment on whether we should limit the requirement to certain portions of the primary Web site (e.g., booking function, checking flight status), whether the requirements should extend to mobile carrier Web sites and to other electronic information technologies (e.g., email or text messaging) used by carriers, and whether any third-party software downloadable from a carrier's Web site should be required to be accessible.

Covered Content on Primary Web Sites

Comments: Regarding the scope of the Web site accessibility requirements, in general the carrier associations and several individual carriers advocated limiting the scope to pages on the primary Web site or on a mobile Web site involved in booking air transportation. The carrier associations, which strongly advocated for flexibility and alternative approaches to making Web sites accessible, urged the Department to consider four options for providing Web site accessibility from which carriers could choose. The first option was a text alternative Web site that would provide only the core air travel information and services (not all of the public-facing content) offered on the primary Web site. The second option would also provide only core air travel information and services on a mobile Web site that meets the MWBP 1.0 standard and is accessible from a link on the primary Web site or that automatically loads on a Smartphone or other mobile device. The third option would allow a carrier to make the Web pages that provide core air travel information and services on a primary Web site accessible using any Web accessibility standard. The fourth option would only require carriers to make newly created Web pages on a primary Web site accessible using any Web accessibility standard starting two years from the final rule effective date. None of the options suggested by the carrier associations would require that all public-facing content on a primary Web site be accessible, although the fourth option might eventually lead to that result. Commenters who supported flexibility and carrier choice also expressed the view that fewer compliance options would inhibit carrier innovation and use of new technologies, limit Web site utility for all passengers, and result in an undue burden for the industry. Other industry commenters such as AAI supported the WCAG 2.0 accessibility standard, but also favored an approach that would limit the public-facing content on a primary Web site that must meet that standard. Some commenters who supported limiting the scope of covered primary Web site content argued that the cost of making large numbers of infrequently visited pages accessible will outweigh any benefit to the few people with disabilities who might visit them. Others argued that providing the core air travel functions in an accessible format on a mobile or text alternative Web site was a reasonable solution because it would be less costly than making their primary Web sites accessible and still provide passengers with disabilities essential air transportation service information. We note that carriers generally were in agreement with the core air travel information and services listed in the second tier of the phased compliance schedule proposed in the September 2011 SNPRM and to applying some accessibility standard to all associated Web pages. One carrier that did not support applying accessibility standards to carrier Web sites suggested that carriers be required to provide a phone number to an accessible phone line where equivalent information and services could be obtained. In its view, this was the best alternative because it would provide personalized service to passengers with disabilities and avoid the imposition of high Web site conversion costs on carriers.

Disability advocacy organizations and individuals who self-identified as having a disability unanimously supported the Department's proposal to require that all public-facing content on a carrier's primary Web site be accessible. A few commenters who self-identified as having disabilities did not oppose the use of text-only Web sites for achieving accessibility, but none supported access to anything less than all public-facing content on a carrier's Web site. ITI, the association of leading information and communication technology companies, stated unequivocally that the complete Web site (all public-facing content on a carrier's primary Web site versus only portions necessary to providing core air travel services and information) should comply with the WCAG 2.0 standard at the conclusion of the implementation period. The majority of individual commenters identifying as having a disability and all commenters representing disability advocacy organizations were also adamantly against the use of text-only Web sites as an alternative to making the primary Web site accessible. Their reasons for opposing the text-only sites will be explained in the discussion on conforming alternate versions later in this preamble.

DOT Decision: The Department considered the arguments raised by carriers and carrier associations in support of compliance options that limit the scope of primary Web site content that must be accessible. While the proposed options would undoubtedly result in cost savings to carriers, they are not the only way to reduce the cost of making Web sites accessible. Moreover, and most importantly, such options are not acceptable because the purpose of requiring Web site accessibility is to attempt to ensure that passengers with disabilities have equal access to the same information and services available to passengers without disabilities. Therefore, the Department has decided to retain in the final rule the requirement we proposed that public-facing content on a carrier's primary Web site marketing air transportation to the general public in the United States must be accessible. The statutory definition of air transportation includes interstate transportation or foreign air transportation between a place in the United States and a place outside of the United States. See 49 U.S.C. 40102 (a) (5). For a carrier whose primary Web site markets (i.e., advertises or sells) air transportation to the general public in the United States this generally means that all public-facing Web content is covered. For a carrier whose primary Web site markets air transportation as defined above and other flights to the general public in and outside of the United States, only public-facing content on the Web site marketing air transportation to the general public in the United States must be accessible. We recognize that some technical difficulty may be involved for foreign carriers applying the accessibility standard to Web sites marketing air transportation to the public in the United States that draw on data sources not required to be accessible under our rules. We are not convinced; however, that the effort to ensure the data from such sources can be used on the covered Web site will involve such significant expense as to cause an undue burden. At the same time, there is no requirement for carriers to make Web pages that market air transportation to the general public outside of the United States on a covered Web site accessible. Therefore, for covered Web sites that market both air transportation as defined above and other flights not within the scope of this rule, we expect carriers to do what is necessary to render Web pages marketing air transportation to the general public in the United States accessible. Carriers will have to decide the best approach to making the covered Web content accessible based on their business priorities and available resources. As a practical matter, we recognize that the most technically efficient and cost effective way to ensure that covered pages meet the accessibility standard may be for carriers to make all Web pages accessible on a Web site that markets air transportation to the general public both inside and outside of the United States and/or markets flights not covered by the rule. Therefore, we encourage carriers to bring Web pages covered by the accessibility requirements into compliance with the WCAG 2.0 Level AA standard using the technical approach that is most feasible for them given the content and infrastructure architecture of their Web sites.

Mobile Web Sites, Mobile Apps, and Other Electronic Communication Technology

The SNPRM: The Department sought comment on whether carriers should be required to ensure that their mobile Web sites meet the WCAG 2.0 standard at Level AA or follow the W3C's MWBP 1.0, or both. We asked whether carriers should be required to ensure that any third party software downloadable from a link on the carrier's Web site (e.g., deal finding software) is accessible and to ensure other carrier-initiated electronic communications such as reservation confirmations, flight status notifications, and special offer emails are accessible. We also requested input on the costs and technical feasibility of ensuring that such content is accessible.

Comments: The Department received a number of responsive comments to our questions about the accessibility of mobile Web sites and other electronic information and communication technologies. Several advocacy organizations for individuals with vision impairment were pleased that the Department had acknowledged that primary Web sites represent only a portion of the air travel-related electronic information and communication that pose barriers to people with disabilities. These organizations strongly urged the Department to go further and require carriers to ensure that their mobile Web sites and other technologies used for electronic customer interface (e.g., email, text messages, and mobile applications) are accessible. Some commenters representing advocacy organizations urged the Department to require carriers to make their mobile Web sites conform to the W3C's MWBP, while others urged us to require mobile Web sites to conform to the same WCAG 2.0 Level AA standard as primary Web sites. Regarding mobile applications (apps), while some of these commenters acknowledged that most mobile phones are not yet fully accessible to blind and other visually impaired users, they felt strongly that mobile apps may overtake Web sites and kiosks as the method of choice for looking up flight information, selecting seats, checking in, etc. within the next few years. They urged the Department to require carriers to ensure that their apps are compatible with the built-in or external assistive technologies that individuals with disabilities use. Specifically, they asked us to require carriers to meet the accessibility standards developed by operating system developers (e.g., Apple's Human Interface Guidelines for mobile apps designed for Apple's iOS mobile operating system) or another recognized standard known to be compatible with available external assistive technology. As discussed earlier, a few of these commenters also urged the Department to adopt in 14 CFR part 382 DOJ's “effective communication” standard under ADA titles II and III and require accessibility of all electronic information and communication technologies used by carriers to interface with their customers. NCIL advocated that the Department take a stronger stance in its rulemakings to reflect the broader rights of people with disabilities to technology access as described in Section 508. By way of comparison, they observed the efforts of government agencies to effectively communicate with people from diverse cultural backgrounds by making their regulations and guidance documents available in multiple languages on agency Web sites, through printed media, and via interpreters on the telephone. NCIL believes that the same concentrated and sustained effort to include people with disabilities is overdue. They further regard failure to move in the direction of greater access for people with disabilities across the spectrum of electronic information and communication technologies as “unacceptable, unfair, and discriminatory” stating: “. . . mandates for accessibility of Web sites . . . [are] long overdue; DOT must not make the same mistake by neglecting to address mobile apps until several years from now.”

Carrier associations and individual carriers generally supported applying an accessibility standard to mobile Web sites only when the mobile Web site is the platform for making the content of a carrier's primary Web site accessible. They acknowledged that mobile Web sites typically do not contain all the content of primary Web sites. ITSA encouraged us to adopt a flexible standard for mobile Web sites (e.g., the W3C's MWBP). In general, industry commenters either expressed opposition or did not comment on our questions regarding accessibility of other electronic information and communication technologies used by carriers to interface with their customers.

DOT Decision: The Department unequivocally supports full accessibility of all electronic information and communication technologies used by the air transportation industry to interface with its customers. We believe that certain factors, however, preclude introducing new accessibility requirements for electronic information and communication technologies other than Web sites at this time. Four factors weighed most heavily in our decision: (1) No accessibility standard specifically for mobile Web sites exists at this time; (2) accessibility standards such as WCAG 2.0 cannot be readily applied to mobile applications designed for mobile platforms that are not accessible; (3) most mobile devices currently on the market are not accessible to individuals who are blind or visually impaired; and (4) the need to focus carrier attention and resources on bringing existing Web sites into compliance with WCAG 2.0 Level AA. We believe the best approach to expanding accessibility of electronic information and communication technology in the air travel industry is to allow carriers to focus their resources on bringing the covered public-facing content of their primary Web sites into full compliance with the WCAG 2.0 Level AA standard. As they do so, they will acquire expertise and develop technical efficiencies in implementing the standard. We have decided, therefore, not to require that mobile Web sites, email, text messaging, mobile apps, and other electronic communication technologies be accessible at this time. Nonetheless, we encourage carriers to develop their mobile Web sites in conformance with the W3C's current MWBP until such time as a standard for mobile Web sites is developed and adopted. We also encourage carriers to immediately begin incorporating accessibility features into email, text messaging, and other information and communication technologies they use to the extent feasible. Doing so will immediately and incrementally increase access to those technologies for individuals with disabilities. In addition, it may make compliance with any accessibility standard the Department may require for such technologies in the future easier and less costly.

Embedded Inaccessible Third-Party Plug-In Applications and Links to Inaccessible External Web Sites and Applications

Comments: Carrier Web sites may contain content that can only be read using a software application owned and developed by a third party. Such applications may be hosted (embedded) on the carrier's Web site, or the Web site may contain a link to an external Web site where the application resides. In the September 2011 SNPRM, the Department sought comment on whether third-party software downloadable from a carrier's Web site (embedded) should be required to be accessible. The carrier associations opposed any such requirement, reiterating their position that the Department should regulate the entities providing the software directly when it is within the scope of its authority to do so. Disability advocacy organizations commenting on the issue urged the Department to require carriers to ensure that downloadable third-party software is accessible. These commenters pointed out that any contracts carriers have with the entities producing such software should contain a provision requiring that it meet the WCAG 2.0 standard. They specifically noted that section 382.15(b) requires carriers contracting for services that must be provided under Part 382 to ensure that the contracts stipulate that the vendor provide the service in accordance with Part 382. They reasoned that if Part 382 requires a carrier's public-facing Web content to be accessible, and the carrier contracts with a third party to provide downloadable software on its Web site, the contract must stipulate that the software meets the WCAG 2.0 standard. In addition, they urged the Department to require carriers to work proactively with the producers of inaccessible software that resides on an external Web site but can be reached from a link on the carriers' Web sites to repair any accessibility issues.

DOT Decision: The Department has considered the impact on Web site accessibility of various scenarios involving inaccessible third-party software embedded on a carrier's Web site and links to inaccessible Web sites or software that reside on an external Web site. In the case of an inaccessible third-party software, such as a deal finder software, embedded directly on a carrier's Web site, the Department believes that allowing exceptions for such software on an otherwise accessible Web site could significantly undermine the goal of equivalent access to Web site information and services for people with disabilities. Many companies today sell off-the-shelf Web software (e.g., JavaScript menus) used by Web site authors. A general exception allowing carriers to embed inaccessible plug-in software developed by third parties on an otherwise accessible Web site over time could result in significant portions of Web sites being excepted from compliance with the WCAG 2.0 standard.

The Department believes it is incumbent on carriers that intend to host third-party software of any kind on their Web sites to work with the developers to ensure that such software meets the WCAG 2.0 standard. This rule does not, however, prohibit a carrier from having links on its primary Web site to external Web sites and third-party software that are partially or entirely inaccessible. Such links are acceptable so long as there is a mechanism on the carrier's Web site informing the user that the third party software or external Web site may not follow the same accessibility policies as the primary Web site. For example, if a carrier's Web site has links to inaccessible external Web sites containing information and consumer comments about the carrier's services (e.g., social media Web sites such as Facebook, Twitter, and YouTube), the carrier must provide a disclaimer when the link is clicked informing the user that the external Web site is not within the carrier's control and may not follow the same accessibility policies (See links to Facebook, Twitter, and YouTube on the Social Security Administration home page http://ssa.gov). While this approach is acceptable, we urge carriers generally to avoid linking to external resources that are known to be inaccessible and to work with the authors of the external sites whenever possible to develop accessible modules. For example, Facebook, Twitter, and YouTube have collaborated successfully with the Web site developers of certain government agencies to provide an accessible interface for agency-related content (e.g., see links to Facebook, Twitter, and YouTube on the homepages of the Department of Education at http://ed.gov and the Department of Homeland Security at http://dhs.gov).

4. Applicability

The SNPRM: We proposed to apply the WCAG 2.0 Web site accessibility standard to U.S. and foreign carrier primary Web sites that market (i.e., advertise or sell) air transportation to the general public in the United States. We asked whether the requirements should apply to the Web sites of the largest U.S. and foreign air carriers only (e.g., those that operate at least one aircraft with more than 60 seats), of carriers that offer charter service only, and of carriers that advertise air transportation but do not sell airline tickets. As discussed above, the Department also proposed to require both U.S. and foreign carriers to ensure the accessibility of Web sites owned or controlled by agents that are not small business entities and to permit carriers to market on the inaccessible Web sites of small ticket agents, if they ensure that those small agents make Web-based discount fares and amenities available to passengers who indicate they are unable to use the agent's Web site. We sought comment on whether we should directly require ticket agents to ensure the accessibility of their Web sites under 49 U.S.C. 41712, rather than indirectly through the carriers. We also proposed to require that carriers disclose (and make available to sell) Web-based discounts and waive telephone or ticket counter reservation fees for customers indicating that due to a disability they are unable to use a carrier's inaccessible Web site (before the Web site conversion deadline). Finally, since individuals with certain disabilities (e.g., deaf-blind) may not be able to use a Web site that meets the WCAG 2.0 standard at Level AA without assistance, we proposed to require carriers to disclose and make available Web-based discounts and waive telephone or ticket counter reservation fees for customers indicating that due to a disability they are unable to use the carrier's accessible Web site after the Web site conversion deadline.

Applicability to Carrier Web Sites

Comments: Overall, the majority of commenters favored our proposal to apply the Web site accessibility requirements to primary carrier Web sites that market air transportation to the general public in the United States. Despite their disagreements with the proposed technical standard, the scope of covered Web site content, and the implementation time frame, both U.S. and foreign carriers were nearly unanimous in supporting the concept of carrier Web site accessibility. There were some comments, particularly among industry commenters, in favor of limiting applicability of the Web site accessibility requirements based on carrier size or Web site function.

The carrier associations who commented jointly urged the Department to apply the accessibility standard only to carrier Web sites that offer and sell air transportation. In their view, carrier Web sites that advertise air transportation but do not sell airline tickets should be excluded from coverage. Condor Flugdienst noted that foreign carriers operating a small number of weekly flights to and from the United States should be permitted an alternative means of compliance rather than having to make an investment in Web site accessibility similar to that of foreign carriers that operate more frequent covered service. All Nippon (ANA) concurred with the notion that basic information on carrier Web sites should be accessible to consumers with disabilities but stated that revising its Web sites targeting only U.S. consumers is impractical because all its Web sites (e.g., targeting Japan, Asia, Europe) draw on common data sources. The Regional Airline Association asserted that compliance costs for smaller carriers operating aircraft with 60 or fewer passenger seats would far outweigh the benefits but did not explicitly support excluding Web sites based on carrier size. One industry commenter suggested that DOT should exclude small or very small carriers with inaccessible Web sites from the accessibility requirements as long as the large partner carriers handling online ticket sales, check-in, etc., on their behalf also host on their own accessible Web sites the core air travel information and services available on the smaller airlines' inaccessible Web sites. There were very few comments by individual members of the public and none by commenters representing the disability community in favor of excluding any primary carrier Web sites from coverage.

Carriers raised no objections to the provisions to require disclosure of Web-based discounts and amenities and waiver of reservation fees not applicable to other customers for individuals with disabilities who notify the carrier that they are unable to use a Web site due to their disability. Some pointed out that this service is already required by Part 382 so compliance would not pose any additional burden. Others expressed the view that this provision by itself would meet the service needs of customers with disabilities without imposing the cost of compliance with the WCAG standard.

Several disability commenters, however, expressed dissatisfaction with the disclosure and fee waiver measures currently required by the Department when a carrier's Web site is not accessible. These commenters maintained that carriers frequently do not provide the discount information or do not waive reservation fees even when the individual identifies as having a disability. In 2010, Dr. Jonathan Lazar and students at the Department of Computer and Information Sciences of Towson State University conducted a study involving test calls to major carriers to determine how consistently carriers comply with these requirements. Their findings suggested that there are compliance problems. After placing a series of 60 phone calls (15 calls to each of 4 major carriers), students who self-identified as blind and specifically stated that they were unable to access the carrier's Web site noted at least one instance per carrier of price discrimination (e.g., discounted Web-based fares offered online were not disclosed to the caller or the agent refused to waive the telephone reservation fee). The rate of compliance failure was as high as 33 percent and 40 percent respectively for two carriers. ⁽²⁹⁾

DOT Decision: After carefully considering the concerns and compliance alternatives proposed by commenters, the Department has decided to require U.S. and foreign carriers that operate at least one aircraft with a seating capacity of more than 60 passengers to apply the WCAG 2.0 Level AA standard to their primary Web sites that market air transportation to the general public in the United States regardless of the carrier's type of passenger operations (e.g., charter or scheduled), or in the case of foreign carriers, the frequency of covered flights. We note here that whenever we reference aircraft passenger seating capacity in this or other economic or civil rights aviation rulemakings, we are referring to an aircraft's seating capacity as originally designed by the manufacturer. This requirement includes the primary Web sites of any such carriers that advertise on that site but do not sell air transportation there. For carriers that only advertise air transportation or their role as providers of air transportation (e.g., contract carriers) on their Web sites, compliance will be less technically complex and costly than for carriers that also sell airline tickets. For foreign carriers for whom air transportation to and from the United States is a small percentage of their overall operations, some additional complexity may be involved to convert data drawn from databases that are not covered by Part 382. But as we discussed earlier, the data conversion involved does not, in our view, constitute an undue burden.

On the other hand, we have decided to exclude small carriers (defined as those exclusively operating aircraft with 60 or fewer seats) from the requirement to make their primary Web sites accessible because of concerns about cost burden. When we proposed to require all carriers, regardless of size, to make their Web sites accessible, our research indicated that the majority of small carriers operated fairly simple Web sites that do not offer online booking, check-in or flight status updates. In updating our research for the final regulatory evaluation, we found that the Web sites of many smaller carriers have added online booking engines, one of the more difficult Web site functions to make accessible. As such, we believe that the additional cost to comply with the accessibility standard and maintain their Web site's accessibility would be substantial for small carriers. At the same time, the benefit for consumers would be small as only a few carriers exclusively operate aircraft with 60 or fewer seats. We therefore agree with the Regional Airline Association that the additional compliance costs for these small carriers are likely to outweigh the additional benefits to consumers from slightly increasing the number of carriers subject to these requirements.

To address carrier sites that are inaccessible to an individual with a disability before or after the Web site accessibility deadline, we retain the provisions requiring carriers to disclose Web-based discounts applicable to the individual's itinerary and waive fees applicable to telephone or ticket counter reservations for individuals who contact them through another avenue to make a reservation and indicate they are unable to access the Web site due to a disability. If the carrier charges a fee for Web site reservations that applies to all online reservations, the carrier may charge the same fee to a passenger with a disability requesting a reservation for a Web-based fare. We have noted earlier the commenter assertions and the Lazar study findings that some carriers do not consistently make Web-based discounts available or waive telephone or ticket counter reservation fees for those unable to use an inaccessible Web site. Therefore, we encourage carriers to ensure that their customer service staff is properly trained to comply with these requirements, as failures in this regard could result in enforcement action. We also encourage individuals with disabilities to immediately request a complaints resolution official (see 14 CFR 382.151) when they encounter any difficulties obtaining the required accommodation.

Ticket Agent Web sites

Comments: All carrier associations and individual carriers commenting on the provision to require carriers to ensure the accessibility of ticket agent Web sites strenuously opposed it and most urged the Department to regulate ticket agents directly. These commenters cited significant added costs to carriers in order to monitor ticket agent Web sites and a lack of leverage on the carriers' part to make the agents comply. ANA also sought clarification of the provision that carriers must ensure compliance with the accessibility standard on ticket agent “Web pages on which [their] airline tickets are sold.” They wanted to know the extent of a carrier's obligation to ensure accessibility on agent Web pages, which in addition to the carrier's fares, display special offers and advertise travel components (e.g., hotel bookings, rental cars) that are not within DOT's jurisdiction.

ANA also raised concerns about Web pages subject to oversight by more than one carrier if disagreements arise among the carriers as to whether the pages adequately meet the standard. ANA also wanted to know about Web pages that are likely to be viewed in the process of booking a carrier's fares but that do not specifically mention the carrier—such as disclosures about service fees or refund fees imposed by the agent. Finally, they raised the possibility that DOJ may subsequently adopt a Web site accessibility standard that conflicts with the DOT standard, and asked whether carriers would be obligated to put agents at risk of DOJ sanctions by insisting that they follow the DOT standard. We respond to these concerns in the section DOT Decision below.

The American Society of Travel Agents (ASTA) and National Tour Association (NTA) concurred with the view that airlines should not be quasi-enforcers of ticket agent compliance with Web site accessibility requirements, stating that the carriers' role should only be to provide notice to agents of their Web site accessibility obligations (e.g., through the Airlines Reporting Corporation). The Interactive Travel Services Association (ITSA) was the sole commenter representing ticket agents that supported a requirement for carriers to ensure agent Web site compliance as long as the sole determinant of compliance is the accessibility standard DOT mandates and not any additional requirements that individual airlines may wish to impose.

Echoing ANA's comments about the scope of agent Web sites, other industry commenters pointed out that ticket agent Web sites contain content and functionality that go well beyond the marketing of air transportation. They observed that compliance with the accessibility standard would necessarily entail changes to many Web pages unrelated to air transportation. USTOA in particular argued that few, if any, tour operator Web sites offer customers the opportunity to purchase air transportation as a stand-alone product, which typically is offered as an add-on to supplement a cruise or land tour. They argued that Web site changes to make pages on which air transportation is marketed accessible will necessarily involve changes to the site layout and architecture affecting non-air transportation related Web pages. USTOA believes that this situation amounts to de facto regulation of travel products and services outside the scope of the ACAA and the Department's jurisdiction. Other travel industry commenters noted that only a small portion of the content on agent Web sites is air transportation-related and asserted that unless agents undertake the expense of rendering all the public-facing content on their Web sites accessible, their Web sites as a whole will not be accessible to passengers with disabilities under the proposed requirements.

Commenters representing agents also pointed out that the cost of converting existing Web sites would be especially difficult for ticket agents that have minimal in-house resources providing Web site support. These commenters observed that many travel businesses would have no choice but to purge existing content and avoid adding any advanced features on their Web sites rather than incur the high cost of ensuring that all their covered content is accessible. As an alternative, ASTA/NTA suggested that DOT consider requiring only new content on agent Web sites to be accessible, while permitting a safe harbor for existing content. They reasoned that even with a safe harbor provision, in most cases the continuous and rapid turnover of content would result in Web sites coming into compliance over a relatively short period of time.

For the most part, disability advocacy organizations indicated their overall concurrence with the Department's proposals and few commented directly on whether the Department should require carriers to ensure the accessibility of ticket agent Web sites or ensure the compliance of ticket agent Web sites directly. Disability advocacy organizations that did comment on the ticket agent proposal remarked that carriers should be held responsible for ensuring ticket agent Web site accessibility through their contracts with the agents. They again observed that Part 382 already requires carriers to have provisions in their agreements with contractors that perform services required by Part 382 on their behalf. See section 382.15(b). A few individual members of the public who did not identify as having disabilities, however, did not support a requirement to hold carriers responsible for ensuring the compliance of ticket agent Web sites.

In connection with ensuring the accessibility of ticket agent Web sites, industry commenters and some individual commenters also raised the concurrent Department of Justice (DOJ) rulemaking to revise its ADA title III regulations concerning Web site accessibility standards. These commenters stated that both Federal agencies must coordinate to ensure that the technical Web site accessibility criteria each will require are consistent. Some of these commenters urged the Department to postpone imposing a Web site accessibility standard with regard to ticket agents until the DOJ rulemaking is completed.

Finally, the Department received a number of comments on the proposed provisions for carriers to ensure that agents that are small businesses and whose Web sites are inaccessible provide Web-based discounts, services, and amenities to individuals who indicate that they cannot use the agents' Web sites and who purchase tickets using another method. ASTA specifically supported this proposal as a viable trade-off for small entities in lieu of Web site conformance, saying that such businesses expect to have personal interaction with consumers anyway, so any additional burden of providing these services offline should be manageable. Some disability advocacy organizations took exception to the Department excluding small ticket agents from the carriers' responsibility to ensure that agent Web sites comply with the WCAG 2.0 standard. In their view, a requirement for carriers to ensure that small agents offer Web-based discounts to passengers who self-identify as having a disability is not practical. They argued that customers will not necessarily know whether the agent is a small business and whether or not the agent's Web site should be accessible. They also objected to the notion that in order to access the same service as non-disabled people, they must self-identify as having a disability.

DOT Decision: The Department has considered the viewpoints for and against requiring accessibility of ticket agent Web sites and the question of whether or not carriers should be responsible to ensure that such Web sites are accessible. After looking at all the available information, we have decided against requiring carriers to ensure the accessibility of ticket agent Web sites. We considered limiting the agent Web sites for which carriers must ensure compliance to those agents whose annual revenues related to passenger service to, within and from the United States are $100,000,000 or more. Limiting carriers' responsibility to ensure the accessibility of ticket agent Web sites to only the few largest agent Web sites would limit the cost burden to carriers of monitoring agent Web site compliance with this requirement while increasing the range of accessible air travel Web sites available to consumers with disabilities who would benefit from the rule.

We decided against adopting this approach for two reasons. First, the Department of Justice (DOJ) has jurisdiction to regulate travel services as service establishments that are public accommodations under title III of the ADA, and DOJ expects to issue a proposal in early 2014 on accessibility of public Web sites under ADA title III. The Department of Justice proposal would address the scope of the obligation for public accommodations to provide access to their Web sites for persons with disabilities, as well as the technical standards necessary to comply with the ADA. Ticket agents, which are public accommodations under ADA title III, would be covered entities under DOJ's rulemaking. Although in our view DOT has the rulemaking authority to require ticket agents to directly comply with the same Web site accessibility standard as carriers, we acknowledge DOJ's concurrent authority to do the same and are persuaded that a single consistent standard that applies to ticket agents for Web site accessibility will eliminate uncertainty and confusion in converting their Web sites.

Secondly, we find the carriers' arguments persuasive that a requirement to ensure that their agents implement the Web site accessibility standards will be difficult for them to monitor and enforce. Furthermore, diverting technical resources away from the development and maintenance of their own primary Web sites in order to monitor ticket agent Web sites may detract from their efforts to identify and correct problems that may emerge after the WCAG 2.0, Level AA standard is implemented on their Web sites. For these reasons, we feel it will best serve the public interest not to require carriers to ensure that their ticket agents bring their Web sites into compliance with WCAG 2.0, Level AA at this time. In the same vein, the Department has decided not to require carriers to monitor and refrain from using ticket agents who fail to provide, either over the telephone or at an agent's places of business, Web-based fares and amenities to individuals who cannot access an agent's Web site due to their disabilities. Instead, the Department has decided to amend its rule on unfair and deceptive practices of ticket agents  ⁽³⁰⁾ to require all ticket agents that are not considered small businesses under the Small Business Administration's (SBA) size standards  ⁽³¹⁾ to disclose and offer Web-based discount fares to prospective passengers who contact them through other channels (e.g., by telephone or at an agent's place of business) and indicate that they are unable to use an agent's Web site due to a disability.

The Department has also decided not to include an additional requirement in the rule on unfair and deceptive practices to prohibit a ticket agent from charging a fee for reservations made over the phone or at the agent's place of business to individuals who cannot use the agent's Web site due to a disability. In our view, amending the unfair and deceptive practices rule to bar fees is unnecessary since existing law already prohibits charging a fee in such circumstances. Under the “reasonable modification” provision of DOJ's current title III ADA regulation, covered entities are required to make reasonable modifications to their policies, practices, and procedures when necessary to afford the same advantages to individuals with disabilities as are available to others, unless such modification would cause a fundamental alteration of the advantage offered. ⁽³²⁾ Furthermore, ADA title III prohibits covered entities from imposing charges to cover the cost of such reasonable modifications, even when a charge would normally be assessed to all customers for the same service. ⁽³³⁾ DOJ's guidance concerning this provision explains that when a service normally provided at a fee to all customers is provided to an individual with a disability as a necessary measure to ensure compliance with the ADA, no fee may be imposed on the individual with a disability for that service. ⁽³⁴⁾ The Department believes that these title III provisions sufficiently establish the obligation of ticket agents to modify their policies to refrain from charging a fee to individuals with a disability for Web fares requested over the telephone or in-person at the agents' places of business when those individuals indicate that they are unable to access the agent's Web sites due to their disabilities.

Implementation Approach and Schedule

The SNPRM: The Department proposed a three-phase implementation schedule for ensuring that the carriers' primary Web sites would be fully compliant by two years after the effective date of the rule. The first phase would apply only to new or completely redesigned primary Web sites that would be required to be accessible if placed online 180 days or later after the effective date. We explained that substantial technical changes such as those affecting a Web site's visual design or site architecture would constitute a “redesign.” The second phase would require all pages associated with obtaining core air travel services and information related to these core services, either to be directly conformant on the carrier's primary Web site, or have accessible links from the primary Web site to corresponding conformant pages on a mobile Web site by one year after the effective date. The third phase would require all public-facing content on the carrier's primary Web site, including core air travel services and information previously made accessible on a mobile Web site, to meet the accessibility standard by two years after the effective date. We also sought comment on alternative time frames and approaches for implementation of the WCAG 2.0 standard.

Comments: Most commenters, whether representing industry or the disability community, disagreed with the proposed implementation approach and time frame. Nearly all of the industry comments, for example, favored a flat two-year implementation deadline for all Web site changes, rather than the proposed phased approach. Most of the industry comments favoring a two-year deadline also supported applying the accessibility standard to only the portion of a carrier's primary or mobile Web site involved in providing core air travel services and information. Spirit Airlines offered another option, recommending that only core air travel service and information pages be compliant with WCAG 2.0 at Level A by two years after the effective date and with Level AA by five years after the effective date. Air New Zealand, which did not object to the proposed WCAG 2.0 Level AA standard or to the scope (all public-facing Web pages on the primary Web site) argued that more than two years would be needed to render all covered content compliant. The Interactive Travel Services Association (ITSA) opposed the phased implementation timeline and urged the Department to impose a single compliance deadline of at least 18 months after the effective date for all Web content. Not all commenters rejected a phased approach, however. The American Society of Travel Agents (ASTA) opposed a flat two-year compliance period, stating that the timeline should be variable, allowing more time to convert larger Web sites. ASTA also supported a requirement for priority to be given to bringing content most likely to be used by consumers with disabilities into compliance first.

Although many individual commenters who self-identified as having a disability supported the proposed time frame, disability advocacy organizations generally considered the time frame too generous. In their view, the technology already exists to restructure a large Web site on an accelerated schedule. ACB and AFB found the staggered implementation time frame confusing and potentially subject to litigation. They recommended that all Web site pages be compliant by six months after the effective date, except for certain legacy pages and content that would pose an undue burden to convert. CCD and NCIL advocated that at least Web pages providing the core air transportation services be compliant within six months after the effective date.

ITI offered several comments on the proposed implementation approach. They observed that while the technical challenges of Web site conversion vary greatly among the carriers, it is safe to say that when accessibility is properly integrated into the development process, technical efficiencies can be expected over time. They also observed that while new pages generally can be made accessible more easily than existing content, both share common back end infrastructure that may need to be changed. These infrastructure changes may involve additional staff training and implementation time in order to enable accessibility on new pages. They advised the Department to allow adequate time to execute all the required changes.

DOT Decision: We have considered all these comments at length and have been persuaded that the three-phase implementation schedule proposed for carriers' Web sites to be fully compliant within two years should not be adopted. However, for reasons we discussed earlier, the Department is convinced that it should require all covered public-facing content on a carrier's primary Web site to be accessible. The Department believes that reduction of compliance costs can be achieved without compromising access to all the public-facing pages on an airline's Web site content for people with disabilities by providing additional time for carriers to make their Web sites accessible. The additional time before full compliance is required will increase the extent to which accessibility can be built into newly launched or redesigned Web pages, forms, and applications, while minimizing the amount of retrofitting required. As such, we are requiring carriers that market air transportation to the general public in the United States and operate at least one aircraft with a seating capacity of more than 60 passengers to bring all Web pages associated with obtaining core air travel services and information (i.e., booking or changing a reservation (including all flight amenities), checking-in for a flight, accessing a personal travel itinerary, accessing the status of a flight, accessing a personal frequent flyer account, accessing flight schedules, and accessing carrier contact information) into compliance with the WCAG 2.0 standard at Level AA two years after the effective date of the rule. All remaining covered public-facing content on their Web sites must meet the WCAG 2.0 standard at Level AA three years after the effective date of the rule. We believe the extended deadline will lower the overall compliance costs for carriers by allowing more time to implement the changes during scheduled Web site maintenance and updates. A more detailed discussion of issues relating to the cost of implementation will be presented in the upcoming section on Costs and Benefits.

5. Conforming Alternate Versions

The SNPRM: In the September 2011 SNPRM preamble, we discussed our concerns about some methods used to provide accessible Web content to individuals with disabilities. Specifically, we discussed the method of making the content of a primary Web site or Web page available in a text-only format at a separate location rather than making it directly conformant on the primary Web site. The Department had learned from a number of sources that such alternate sites are often not well maintained, frequently lack all the functionality available on the non-conforming Web site/page, and have content that is not up-to-date. ⁽³⁵⁾ These deficiencies are so prevalent that many accessibility experts flatly oppose alternate text-only sites as a general accessibility solution. ⁽³⁶⁾ WCAG 2.0, however, permits a conforming alternate version of a Web page as a way for a non-conforming page to comply with the standard. The conforming alternate version must meet the WCAG 2.0 Level AA success criteria, be up-to-date with and contain the same information and functionality in the same language as the non-conforming page, and at least one of the following must be true: (1) The conforming version can be reached from the non-conforming page via an accessibility-supported mechanism, or (2) the non-conforming version can only be reached from the conforming version, or (3) the non-conforming version can only be reached from a conforming page that also provides a mechanism to reach the conforming version. ⁽³⁷⁾ The conforming alternate version is intended to provide people with disabilities equivalent access to the same content and functionality as a directly accessible Web page. WCAG 2.0 implementation guidance, however, notes that providing a conforming alternate version of a Web page is a fallback option for WCAG conformance and that the preferred method is to make all Web page content directly accessible. ⁽³⁸⁾ Although the Department proposed no requirement restricting the use of conforming alternate versions, we stated our intent that Web site content be directly accessible whenever possible. See 76 FR 59307, 59313 (September 26, 2011). We sought comment on whether we should explicitly prohibit the use of conforming alternate versions except when necessary to provide the information, services, and benefits on a specific Web page or Web site as effectively to individuals with disabilities as to those without disabilities. We also asked under what circumstances it may be necessary to use a conforming alternate version to meet that objective.

Comments: In general, as discussed earlier, industry commenters favored the use of alternate Web site versions that did not conform to the WCAG 2.0 definition of “conforming alternate version.” Although some carriers did not oppose adopting the WCAG 2.0 Level AA success criteria, nearly all preferred having the option to apply any accepted accessibility standard only to primary Web site content involving core air travel services and information and to provide such content on a separate mobile or text-only Web site. We note that this proposed alternative would result in two parallel Web sites, each with its own development and maintenance costs. ITI commented that it should be up to the carrier to decide whether to build and maintain two Web sites (one that meets the WCAG 2.0 Level AA success criteria and one that does not) or a single compliant Web site. ITI observed that even though over time the cost of maintaining two Web sites would be greater than for a single compliant Web site, carriers should determine which approach would work best for them.

Disability community commenters rejected any option involving an alternative Web site largely because of their experience with such Web sites being poorly maintained and containing outdated content. Moreover, they viewed reliance on text-only alternatives for achieving accessibility as a “fundamental mistake.” They noted that arguments for text-only Web sites carry the implicit assumption that accessibility is intended to focus on users with visual disabilities. They emphasized the importance of considering the accessibility needs of all users, including those with hearing, cognitive, and dexterity disabilities, who benefit from accessible content that contains images, color, time-based media, and JavaScript.

DOT Decision: The Department continues to believe that conforming alternate versions, as defined by WCAG 2.0, have a role, albeit a very limited one, in achieving Web site accessibility. The alternate version promoted by the carrier associations and some individual carriers (i.e., text-only Web site containing core air travel services and information only), however, would host on the alternate Web sites only selected portions of the information available on the carriers' primary Web sites. The Department believes that permitting the use of an alternate version of any Web page that does not conform to the elements of a “conforming alternate version” as defined by WCAG 2.0 is incompatible with the goal of equal access. As discussed earlier, in order for a non-conforming Web page to be included within the scope of conformance by using a conforming alternate Web page under this rule, the alternate page must meet the WCAG 2.0 Level AA success criteria, be as up-to-date and contain the same information and functionality in the same language as the non-conforming page, and at least one of the following must be true: (1) The conforming version can be reached from the non-conforming page via an accessibility-supported mechanism, or (2) the non-conforming version can only be reached from the conforming version, or (3) the non-conforming version can only be reached from a conforming page that also provides a mechanism to reach the conforming version. We note that the use of WCAG 2.0 conforming alternate versions, if unrestricted, is likely to perpetuate the problem of unequal access as carriers allot fewer resources than needed over time to properly maintain the secondary site. Given the incentives for carriers to focus on the development and maintenance of their primary Web site and the cost inefficiencies of maintaining two separate Web sites, the Department concurs with the WAI's view that the preferred method of conformance in most circumstances is to make all content (e.g., each page) on the primary Web site directly accessible.

Moreover, limiting the use of conforming alternate versions aligns with the well-established principle of disability nondiscrimination law that separate or different aids, benefits, or services can only be provided to individuals with disabilities (or a class of such individuals) when necessary to provide aids, benefits, or services that are as effective as those provided to others. See, e.g., the ADA implementing regulation for title II at 28 CFR 35.130(b)(1)(iii) and (iv) and 35.130(b)(8)(d), and the ADA implementing regulation for title III at 28 CFR 36.202(b) and (c), and 36.203(a). Therefore, the Department has decided to permit the use of Level AA conforming alternate versions only when making a particular public-facing Web page compliant with all WCAG 2.0 Level AA success criteria would constitute an undue burden or fundamentally alter the content on that page. Since a fundamental principle underlying the WCAG success criteria is that they be reasonable to do all of the time, most of the more difficult success criteria have explicit exceptions built-in for situations where direct compliance is not reasonable. For example, Success Criterion 1.1.1 (Level A) provides that all non-text content that is presented to the user has a text alternative that serves the equivalent purpose and lists six exceptions/alternative means of compliance for situations in which presenting non-text content as a text alternative would not be technically feasible. These include non-text content that is (1) a control or accepts user input, (2) time-based media, (3) a test or exercise, (4) designed to create a specific sensory experience, (5) a Completely Automated Public Turing test to tell Computers and Humans Apart (CAPTCHA), or (6) a decoration, formatting, or invisible. Most of these exceptions permit the text alternative to at least provide descriptive identification of the non-text content. With such broad exceptions intended to address technically challenging situations specifically built into the success criteria, an undue burden or fundamental alteration defense for using a conforming alternate version rather than rendering a Web page directly compliant with the Level AA success criteria will be a very high bar to meet.

If, despite the exceptions built into the WCAG 2.0 standard, a carrier believes an undue burden defense is justified with respect to a particular Web page, we would emphasize that the determination must be based on an individualized assessment of a number of factors showing that directly converting the Web page would cause significant difficulty or expense to the carrier. Those factors include: The size of the carrier's primary Web site; the type of change needed to bring the particular Web page into compliance; the cost of making the change as compared to the cost of bringing the Web site as a whole into compliance; the overall financial resources of the carrier; the number of carrier employees; the effect that making the change would have on the expenses and resources of the carrier; whether the carrier is part of a larger entity and its relationship to the larger entity; and the impact of making the change on the carrier's operation.

6. Compliance Monitoring

The SNPRM: In the September 2011 SNPRM, the Department discussed several issues relating to ensuring and monitoring carriers' compliance with the WCAG 2.0 accessibility standard. We discussed, but did not propose to require, that carriers post WCAG 2.0 “conformance claims” on their Web sites. (A “conformance claim” is W3C's term of art for a statement by an entity giving a brief description of one Web page, a series of pages, or multiple related pages on its Web site for which the claim is made, the date of conformance, the WCAG guidelines and conformance level satisfied, and the Web content technologies relied upon.) See Web Content Accessibility Guidelines (WCAG) 2.0: W3C Recommendation 11 December 2008, available at http://www.w3.org/TR/WCAG/#conformance-claims (as of November 16, 2012). Although concerned that conformance claims may be too resource intensive for complex and dynamic carrier Web sites, we nonetheless invited public comment on effective alternative means for readily identifying compliant Web pages during the Web site conversion period and for verifying overall Web site accessibility after the compliance deadline. We asked whether the Department should initiate random “spot” investigations of carrier and online ticket agency Web sites to monitor compliance after the rule becomes effective. We also asked whether there were any specific technical barriers to maintaining Web site accessibility after full Web site compliance is initially achieved.

Comments: The Department received a fairly wide range of comments addressing our inquiries on compliance monitoring. The NFB disagreed with the Department's view that conformance claims may be too costly to be feasible, stating that conformance claims are the “cheapest and easiest method of identifying accessible Web pages for both the carrier and the user.” If the Department does not decide to adopt conformance claims, NFB suggested that in the alternative carriers provide: (1) A mechanism for users to request accessibility information that carriers must promptly disclose in an accessible format; (2) a “how to” tutorial on using the accessible Web site; or (3) customer service assistance specifically to address accessibility questions and needs. NFB considered these suggested alternatives less effective and less feasible than conformance claims. Some commenters suggested that the Department require carriers to adopt some form of self-monitoring such as a link to a customer survey prominently displayed on the Web site, a pop-up to ask users their opinion or permission to send them a survey regarding Web site accessibility, or a feedback mechanism on the Web site specifically for reporting accessibility problems. Other suggestions were that the Department itself randomly check carrier Web sites to ensure compliance or work collaboratively with academic institutions to carry out random monitoring. Yet another suggestion was that the Department require carriers to establish disability teams to conduct an annual or biannual assessment of their Web sites for accessibility barriers and send a report to the Department.

The carrier associations suggested that the Department employ accessibility experts and use available online tools to determine if carriers' Web sites meet the accessibility standard. They also suggested that initial “spot” investigations be used to provide constructive feedback to carriers on Web site areas that appear not to meet the required standard. Regarding specific technical barriers, they noted that Java or Flash programs used to enhance the customer Web site experience are not easily made accessible and should be exempt from the standard or a text alternative version permitted.

DOT Decision: The Department considered the value of conformance claims as a means to readily identify compliant Web pages and Web sites and weighed the expense that meeting all the required elements of conformance claims is likely to incur. We also considered the fact that W3C itself does not require entities to post conformance claims. We have decided that other methods would allow the Department to monitor Web site compliance and provide feedback to carriers without imposing any additional cost burden on them. The Department encourages carriers to adopt one or more of the suggestions above for obtaining user feedback on the accessibility of their Web sites and urges them to use the feedback to continuously improve the accessibility of their Web sites. We especially recommend, but do not require, that carriers include a feedback form on their Web sites, perhaps located on a page that can be reached from a link on the Web pages associated with disability assistance services. At the same time, we do not consider self-monitoring alone adequate for ensuring compliance. The Department intends, therefore, to engage Web site accessibility experts after the date specified in this rule for Web site compliance to check the compliance status of carrier Web sites so that we can notify carriers of non-compliant areas for corrective action. A carrier's failure to take corrective action within a designated time frame may result in the Department taking enforcement action.

7. Online Disability Accommodation Request

The SNPRM: Following up on a similar inquiry we had made to the public in the 2004 Foreign Carrier NPRM, we asked in the September 2011 SNPRM whether the Department should require carriers and ticket agents to provide a mechanism 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.).

Comments: The comments the Department received on this question were starkly split. The disability advocacy community and some individual members of the public strongly favored adopting a requirement for carriers to allow passengers to submit a request online for a disability accommodation. Representatives from industry opposed any mandate for them to provide this service. Disability advocacy commenters observed that online service request notification would be advantageous for passengers with disabilities, who would have a written record of their requests and for carriers, who would have the request in writing in case there was a need for additional information. The Open Doors Organization (ODO) stated that “everyone in the industry,” including travel agents, should be using special service requests uniformly. ODO observed that passengers with disabilities who book their tickets with online travel agents oftentimes must still call the carrier to set up the service request. ODO also pointed out that when the option is available to make a disability service request online when booking with an online travel agent, the service request often does not transfer to the carrier. The carrier associations noted that several carriers already provide an online accommodation request function. They stated that carriers generally still prefer for passengers to speak with a customer service representative about their accommodation needs. The carrier associations believe that any requirement to provide an online service request function will serve to mislead passengers into believing that no other communication with the carrier about their accommodation needs is necessary, thus preventing carriers from getting all the information necessary to properly accommodate passengers.

DOT Decision: The Department believes that having online capability for requesting a disability accommodation has a number of potential benefits both to passengers with disabilities and to carriers. Aside from the advantage to a passenger of having an electronic record of providing notice to the carrier of a service request, an online service request will serve as a flag to the carrier of the passenger's accommodation needs. The Department is therefore requiring carriers to make an online service request form available for passengers with disabilities to request services including, but not limited to, wheelchair assistance, seating accommodation, escort assistance for a visually impaired passenger, and stowage of an assistive device. We also note the carrier associations' argument that simply making an online service request may not be sufficient to ensure the correct accommodation is provided. We agree with their assertion that additional information may be needed at times from the passenger. Therefore, carriers will be permitted to require that passengers with disabilities making an online service request provide information (e.g., telephone number, email address) that the carrier can use to contact passengers about their accommodation needs. Carriers that market air transportation online will be required to provide the service request on their Web sites within two years after the effective date of this rule.

We view an online service request form as a useful tool to assist carriers in providing timely, appropriate assistance and reducing service failures that lead to complaints. Furthermore, aggregate data on online service requests would potentially be useful in helping carriers to understand the volume and types of service requests across time periods and routes.