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.
---------------------------------------------------------------------------

    \35\ See Disabilities, Opportunities, Internetworking, and
Technology, University of Washington. Are text-only Web pages an
accessible alternative? (January 23, 2013), http://www.washington.edu/doit/CUDE/articles?1149 (last visited July 16,
2016). See also Accessibility Hawks, Why Text Only Alternate Web
Pages Are Not Ideal For Accessibility (March 12, 2012), http://accessibilityhawks.com/web-accessibility-articles/why-text-only-alternate-Web-pages-are-not-ideal-for-accessibility.php (last
visited July 16, 2013). See also Should Sites Be Accessible or
Provide a Text-Only Alternative, http://www.evengrounds.com/articles/should-sites-be-accessible-or-provide-a-text-only-alternative (last visited July 16, 2013).
    \36\ Id.
    \37\ See ``Understanding Conformance'' at http://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-conforming-alt-versions-head, June 20, 2012.
    \38\ See Id.
---------------------------------------------------------------------------

    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.

Airport Kiosk Accessibility

    Automated airport kiosks are provided by airlines and airports to
enable passengers to independently obtain flight-related services. The
Department proposed provisions in the September 2011 SNPRM to require
accessibility of automated airport kiosks affecting airlines under 14
CFR part 382 and U.S. airports with 10,000 or more enplanements per
year under 49 CFR part 27 (Part 27). Part 27 is the regulation
implementing section 504 of the Rehabilitation Act of 1973 as it
applies to recipients of Federal financial assistance from the
Department of Transportation. The proposed provisions of Part 382 would
require carriers that own, lease, or control automated kiosks at U.S.
airports with 10,000 or more annual enplanements to ensure that new
kiosks ordered more than 60 days after the effective date of the rule
meet the accessibility design specifications set forth in the proposal.
We intended this provision to apply to kiosks for installation in new
locations at the airport and as replacements for those taken out of
service in the normal course of operations (e.g. end of life cycle,
general equipment upgrade, and terminal renovation). The design
specifications we proposed were based largely on Section 707 of the
2010 ADA Standards for Accessible Design. We also included selected
specifications from the Access Board's section 508 standard for self-
contained, closed products (36 CFR 1194.25). During the interim period
from the effective date of the rule until all automated kiosks owned by
a carrier are accessible, the Department proposed to require that each
accessible kiosk be visually and tactilely identifiable to users as
accessible (e.g., an international symbol of accessibility affixed to
the device) and be maintained in proper working condition. We
specifically proposed not to require retrofitting of existing kiosks.
    We intended the requirements proposed above also to apply to
shared-use kiosks that are jointly owned by one or more carriers and
the airport operator or a third-party vendor. Therefore, provisions to
amend 49 CFR part 27 were proposed to apply nearly identical
requirements to U.S. airports. We also proposed to require that
carriers and airport operators enter into written, signed agreements
allocating responsibility for ensuring that shared-use equipment meets
the design specifications and other requirements by 60 days after the
final rule's effective date. We included a provision proposing to make
all parties jointly and severally responsible for the timely and
complete implementation of the agreement provisions. Again, nearly
identical requirements for entering a written agreement and making the
parties jointly and severally liable for implementing the agreement
were proposed for both Part 382 and Part 27.
    In addition, we proposed to amend Part 382 to require each carrier
to provide equivalent service upon request

to any passenger with a disability who cannot readily use its automated
airport kiosks. Such assistance might include assisting a passenger who
is blind in using an inaccessible automated kiosk or assisting a
passenger who has total loss of the use of his/her limbs in using an
accessible automated kiosk. We proposed to require carriers to provide
equivalent service upon request to passengers with a disability who
cannot readily use their accessible automated kiosks, because even
accessible automated kiosks cannot accommodate every type of
disability.
    Finally, we proposed the same effective date for all requirements
applying to the carriers under 14 CFR part 382 and to the airport
operators under 49 CFR part 27 to avoid any delays in implementing
accessibility for shared-use automated kiosks.
1. Covered Equipment and Locations
Automated Airport Kiosk Definition and Applicability Based on Function/
Location
    The SNPRM: The ownership of automated kiosks varies from airport to
airport. In some airports, automated kiosks are airline proprietary
equipment (i.e., owned, leased, or controlled by each individual
airline). In other airports, kiosk ownership is shared jointly by the
airport operator and airlines serving the airport and are often
referred to as common use self-service (CUSS) machines. In the
September 2011 SNPRM, the Department proposed to define an airline-
owned automated airport kiosk covered by this rule as ``a self-service
transaction machine that a carrier owns, leases, or controls and makes
available at a U.S. airport to enable customers to independently obtain
flight-related services.'' For CUSS machines, we proposed the term
``shared-use automated airport kiosk'' defined as ``a self-service
transaction machine provided by an airport, a carrier, or an
independent service provider with which any carrier having a compliant
data set can collaborate to enable its customers to independently
access the flight-related services it offers.'' We proposed to apply
the accessibility design specifications to all proprietary and shared-
use automated kiosks that provide flight-related services (including,
but not limited to, ticket purchase, rebooking cancelled flights, seat
selection, and obtaining boarding passes or bag tags) to customers at
U.S. airports with 10,000 or more enplanements per year. We asked in
the preamble whether we had adequately described automated airport
kiosks in the rule text.
    Comments: In their joint request of October 7, 2011, to clarify the
scope of the proposed requirement, A4A, IATA, the Air Carrier
Association of America, and RAA asked the Department whether automated
ticket scanners for rebooking flights during irregular operations were
included in the definition of automated kiosks we intended to cover in
the rulemaking. After our clarification notice of November 21, 2011,
addressing ticket scanners, ITI sought further clarification of how
accessibility requirements apply to kiosks based on their functionality
and location at the airport (e.g., check-in or baggage tagging kiosks
located near the ticket counter, boarding or rebooking kiosks near the
gate areas). The Trace Center commented that check-in and other kiosks
at airports such as ticket scanners for rebooking, self-tagging baggage
kiosks, etc. should all be covered. They emphasized that no exceptions
should be made for particular types of airport kiosks, but if needed
due to technology shortcomings, should only apply to a particular kiosk
functions, not to an entire kiosk or category of kiosks. The Trace
Center also suggested that any exceptions based on function should be
reviewed every five years in light of advances in technology.
    DOT Decision: In our notice of November 21, 2011, the Department
clarified our position that a kiosk that allows passengers to rebook
their flights independently provides a flight-related service and
therefore is within the intended scope of the proposed rule. Although
following the notice we received additional comments suggesting that
certain types of automated airport kiosks be excluded from coverage
based on function or location at the airport, the Department finds no
reasonable basis for such exclusions. Despite the trend toward fewer
consumers using an airport kiosk than a home computer or Smartphone to
check in and download their boarding passes, we expect airlines to
continue expanding the menu of new flight-related services available on
kiosks at various locations throughout the airport (e.g., rebooking,
ticketing, and flight information). It continues to be the Department's
intention that all flight-related services offered to passengers
through airport kiosks in any location at the airport be accessible to
passengers with disabilities. Therefore, the accessibility requirements
will apply to all new automated airport kiosks and shared-use automated
airport kiosks installed more than three years after the effective date
of this rule until at least 25 percent of automated kiosks in each
location at the airport are accessible. By ``location at the airport''
we mean every place at a U.S. airport where there is a cluster of
kiosks or a stand-alone kiosk (e.g., in a location where five kiosks
are situated in close proximity to one another, such as near a ticket
counter, at least two of those kiosks must be accessible; in all
locations where a single kiosk is provided which is not in close
proximity to another kiosk, the single kiosk must be accessible). When
the kiosks provided in a location at the airport perform more than one
function (e.g., print boarding passes/bag tags, accept payment for
flight amenities such as seating upgrades/meals/WiFi access, rebook
tickets, etc.), the accessible kiosks must also provide all the same
functions as the inaccessible kiosks. (See section below on
Implementation Approach and Schedule.)
Kiosk at Non-Airport Locations
    The SNPRM: Although we proposed to apply the accessibility standard
only to automated airport kiosks, we noted in the preamble that
airlines may also own, lease, or control kiosks that provide flight-
related services in non-airport venues (e.g., hotel lobbies) covered by
ADA title III rules. We asked for public comment on whether kiosks that
carriers provide in non-airport venues should also be covered by this
rulemaking.
    Comments: Six disability advocacy organizations (ACB, AFB, NFB,
NCIL, PVA, and BBI) strongly urged the Department to apply the
accessibility requirements to kiosks in non-airport locations. PVA
argued that airlines should be required to ensure that kiosks providing
flight-related services are accessible wherever they are located. ACB,
AFB, NFB, NCIL and BBI all noted that both DOT and DOJ potentially have
jurisdiction over kiosks in non-airport locations. ACB and AFB
acknowledged that there may be differences between the DOT and DOJ
requirements for kiosk accessibility given that DOJ is currently
working on a rulemaking to apply accessibility standards to kiosks
other than ATMs and fare machines provided by entities covered under
ADA title III. NFB, NCIL and BBI all supported DOT's initiative to
cover non-airport kiosks under the ACAA but expressed concern that the
ACAA regulations not impede or interfere with rights and remedies
available under the ADA or other laws. The ACAA, for example, lacks a
private right of action like that provided by the ADA against entities
that violate the law. NFB, ACB, and AFB specifically urged the
Department to cover non-airport kiosks in the final rule and to state
in the preamble that ADA

provisions prevail when there is an overlap with the ACAA provisions.
Among individual commenters, there was a mix of responses for and
against applying the accessibility standard in DOT's final rule to
airline kiosks in non-airport venues. Individual members of the public
who did not identify themselves as having a disability tended to oppose
applying the standard to kiosks located outside airports due to
concerns about possible conflicts between the applicable DOT and DOJ
standards.
    On the industry side, only the carrier associations commented,
stating that they were opposed to applying the DOT standard to airline
kiosks located in places of public accommodation where ADA title III
already applies.
    DOT Decision: Although a case can be made to support covering
airline-owned kiosks located in non-airport venues under the ACAA
regulations, the Department believes there are compelling reasons for
not doing so at this time. A primary goal of this ACAA rulemaking is to
apply an accessibility standard to new automated airport kiosks
installed after a certain date. To achieve this, airlines must work
with the airports and their own technical teams, as well as with the
hardware designers and software developers of their suppliers, to
design, develop, test, and install accessible kiosks at airports with
10,000 or more annual enplanements where they own, lease, or control
kiosks. Each carrier may have several different kiosk suppliers with
whom they must work, depending on the airports they serve. We believe
requiring airlines to meet the accessibility standard for kiosks
located in non-airport venues would add significantly to their
compliance burden and divert resources needed to meet their primary
goal of compliance at U.S. airports. In our view, airline compliance
with respect to airport kiosks is a technically complex and resource
intensive undertaking that must take priority over making kiosks
located in other places accessible. Within the next few years, kiosks
in non-airport locations will be subject to DOJ's accessibility design
standard under its revised ADA title II and III regulations. This means
that at most there will be a lag of a few years from the time airline
kiosks at airport locations and those at non-airport locations are
required to be accessible. We believe this time lag is an acceptable
trade off to support proper implementation of the fundamental goal of
airport kiosk accessibility.
Allocation of Responsibilities for Shared-Use Kiosks
    The SNPRM: The Department proposed that carriers and airports be
required to enter into written, signed agreements concerning shared-use
kiosks that they jointly own, lease, or control. The purpose of the
agreements is to allocate responsibilities among the parties for
ensuring that new shared-use kiosks ordered after the effective date
meet the design specifications, are identified as accessible, and are
maintained in working condition. We asked a number of questions about
the allocation of responsibilities and cost-sharing between airport
operators and airlines for the procurement, operation, and maintenance
of shared-use kiosks. We asked about potential difficulties carriers
and airport operators would have in meeting the written agreement
requirement or in implementing the agreements. We also asked whether
there were any shared-use kiosk ownership arrangements involving
airlines only or between airlines and outside vendors that would
require additional time to implement.
    Comments: The Department received very few comments directly
responsive to the questions we asked about allocation of
responsibilities and costs between carriers and airport operators on
shared-used automated kiosks. Regarding the proposed written
agreements, the carrier associations asserted that it would take 24
months to enter into them, presumably due to the time necessary to
revise the IATA kiosk standards. Denver International Airport did not
comment specifically on the deadline for compliance with the agreement
provision. San Francisco International Airport indicated that six
months would be needed to comply with the agreement provision. They
also objected to the provision holding airports and carriers jointly
and severally responsible for compliance with the accessibility
standard for new kiosk orders and other provisions applicable to
shared-use automated kiosks. Their concern was that airlines and
airports have separate responsibilities for ensuring that shared-use
kiosks are accessible and would have no control over the other party
meeting its responsibilities under the agreement. They argued that
airports should not be held responsible for airlines failing to do
their part as provided in the joint agreement. In their view, the
provision for both parties to be jointly and severally liable is not
practical and they asked the Department to delete it.
    DOT Decision: The Department has considered the merits of the
arguments against the proposed provision to hold carriers and airport
operators jointly and severally liable for compliance of shared-use
kiosks with the accessibility requirements. We continue to believe,
however, that joint accountability is essential to ensuring that
shared-use kiosks comply with the design specifications set forth in
the final rule. Moreover, there is precedent for holding carriers and
airport operators jointly and severally liable under Part 382 (see 14
CFR 382.99(f)) and under Part 27 (see 49 CFR 27.72(c)(2) and (d)(2))
for the provision and maintenance of lifts and accessibility equipment
for boarding and deplaning at airports. Therefore, we have retained in
the final rule provisions stating that carriers and airports are
jointly and severally liable for ensuring that shared-use automated
airport kiosks are compliant with the requirements, including the
maintenance provisions. We have accepted, however, the recommendation
to drop the requirement for a written, signed agreement. Both parties
nevertheless will be responsible for jointly planning and coordinating
to ensure that shared-use kiosks are accessible and will be held
jointly and severally liable if compliance is not achieved. We believe
the liability provision will be an incentive for airports and airlines
to work together to carry out requirements that cannot be successfully
implemented without their mutual cooperation.
2. Accessibility Technical Standard
    The SNPRM: The Department proposed and sought public comment on
design specifications based on section 707 of the ADA and ABA
Accessibility Guidelines (now codified in the Department of Justice's
2010 ADA Standards) \39\ that apply to automated teller machines (ATM)
and fare machines and on selected specifications from the section 508
standard for self-contained closed products (see 36 CFR 1194.25). Below
we have summarized the questions we posed along with the responses we
received.
---------------------------------------------------------------------------

    \39\ See 28 CFR 35.104 (defining the ``2010 Standards'' for
title II as the requirements set forth in appendices B and D to 36
CFR part 1191 and the requirements contained in Sec.  35.151); see
also 28 CFR 36.104 (defining the ``2010 Standards'' for title III as
the requirements set forth in appendices B and D to 36 CFR part 1191
and the requirements contained in subpart D of 28 CFR part 36).
Appendices B and D to 36 CFR part 1191 contain the Access Board's
2004 ADA Accessibility Guidelines (2004 ADAAG), consolidating both
the ADA Accessibility Guidelines and Architectural Barriers
Accessibility Act Guidelines (see, 69 FR 44084 (July 23, 2004)).

---------------------------------------------------------------------------

    Comments: The consensus among most commenters was that the
Department's proposed design specifications adequately covered all the
functions automated airport kiosks presently offer, as well as some
functions that may be added in the future. The Trace Center, however,
urged the Department to look beyond the 2010 ADA Standards for
Accessible Design and provisions of the section 508 regulation dating
from 1998 as the basis for the design specifications. Many of their
comments for additions and revised wording were based on the Access
Board's advance notices of proposed rulemaking for the Section 508
update \40\ and on success criteria from WCAG 2.0.\41\ Two individual
commenters suggested that the Department consider incorporating parts
of the U.S. Election Assistance Commission's Voluntary Voting System
Guidelines (VVSG).\42\
---------------------------------------------------------------------------

    \40\ See http://www.accessboard.gov/sec508/refresh/draft-rule2010.htm (preamble at 75 FR 13457, 13468 (March 22, 2010) and
http://www.access-board.gov/sec508/refresh/draft-rule.htm (preamble
at 76 FR 76640, 76646 (December 8, 2011).
    \41\ See http://www.w3.org/TR/WCAG20/.
    \42\ See Voluntary Voting System Guidelines, http://www.eac.gov/testing_and_certification/voluntary_voting_system_guidelines.aspx.
---------------------------------------------------------------------------

    DOT Decision: In collaboration with the Access Board and the
Department of Justice, the Department reviewed and considered the VVSG
guidelines and certain WCAG 2.0 success criteria in developing the
proposed standard. We also considered each of the specific suggestions
for modifying our proposed design specifications offered by the
commenters and have adopted a number of them after weighing the cost
and benefit as well as the present need based on functions automated
airport kiosks currently perform.
    In deciding whether or not to accept a suggested change, we also
considered the fact that the Access Board is now engaged in rulemakings
to revise the guidelines and standards on which our proposed kiosk
standard is based and is expected to issue updated guidelines within
the next few years. We did not accept some recommended changes for
functions typically not performed by airport kiosks or that the Access
Board is studying for possible inclusion in their revised standard
(e.g., control of animation and seizure flash threshold for visual
outputs).
    Regarding the flight-related services automated airport kiosks
currently make available, the Department believes that the standard we
are now adopting is entirely adequate to ensure independent access and
use by the vast majority of individuals with disabilities. The standard
will apply to new kiosks installed three years or more after the
effective date and will not apply to any kiosks installed prior to that
date. We will continue to monitor automated airport kiosks and the
accessibility of any new functions not currently available as the
technology of self-service transaction machines evolves. We will also
review the new guidelines and standards issued by the Access Board and
the Department of Justice to determine whether improvements to the
section 707 and section 508 specifications warrant further change to
the DOT airport kiosk standard in the future. Insofar as the Department
modifies its standard in the future to address new developments in
kiosk technology, the revised standard will apply to new or replacement
kiosk orders only and will not apply retroactively to any equipment
that complies with this standard.

Operable Parts

    The Department sought comment on certain characteristics of
operable parts, including the following:
    Identification--The Department proposed to require that the
operable parts on new automated airport kiosks be tactilely discernible
by users to avoid unintentional activation and requested comment
regarding the cost of meeting the requirement.
    Timing--We proposed that when a timed response is required, the
user be alerted by sound or touch to indicate that more time is needed.
We also wanted to know whether timeouts present barriers to using
automated airport kiosks as well as the costs and potential
difficulties associated with meeting the requirement.
    Status Indicators--We asked whether locking or toggle controls
should be discernible visually as well as by touch or sound.
    Comments: The Trace Center offered a number of comments for
substantially reorganizing and expanding the scope of this section so
that the provisions apply to the overall operation of the kiosk rather
than to its operable parts alone. They also suggested incorporating the
provisions of section 309 of the 2010 ADA standards word for word
rather than by reference, as well as new requirements to allow at least
one mode of operation that is usable without body contact, without
speech, or without gestures. Regarding the timing provision, they
requested that a visual alert be added and that the time limit be
extendable at least ten times. In addition, they proposed to include a
new ``key repeat'' provision, modify the color provision to further
accommodate individuals with color blindness, and expand the scope of
the operable parts provisions to include the provision of touch screen
controls as well as tactilely discernible controls. The carrier
associations suggested that making operable parts tactilely discernible
and integrating a user prompt for timeouts would require substantial
time to design and test and thus would require a compliance date of 36
months after the rule's effective date. ITI indicated that timeouts,
whether in voice or visual mode, are a standard feature of applications
today. They also stated that there should be no requirement for the
status of locking or toggle controls to be discernible visually, or by
sound or touch. In their view, such a requirement would be unnecessary
since most host system applications are not case sensitive or middle
layer applications convert and send inputs to the host in the
appropriate format.
    DOT Decision: The Department has accepted the suggestion to add a
visual alert requirement to the timing provision and a requirement for
visually discernible status indicators on all locking or toggle
controls or keys. We have included as examples of toggle controls the
Caps Lock and Num Lock keys. In light of current automated airport
kiosk functions and operation, the Department has decided that the
provisions of the operable parts section as we proposed them are
adequate without further change. After the Access Board finalizes its
rulemakings revising the section 508 rules and the ADA and ABA
Accessibility Guidelines to address kiosks other than ATMs and fare
machines, the Department will consider whether further changes
addressing the issues raised by the Trace Center should be incorporated
in the operable parts provisions for future orders.

Privacy

    The Department proposed that automated airport kiosks must provide
the same degree of privacy to all individuals for inputs and outputs.
    Comments: The Trace Center suggested that we add an advisory to
provide users of speech output the option to blank the screen for
enhanced privacy. They explained that the screen should not blank
automatically when the speech output mode is activated since many users
may want to use both speech and visual interfaces simultaneously. NFB
suggested that the screen blank out automatically upon activation of
speech output.
    DOT Decision: The Department has modified the proposal in line with
the Trace Center suggestion to require that

when an option is provided to blank the screen in the speech output
mode, the screen must blank when activated by the user, not
automatically.

Outputs

    The Department sought comment on certain characteristics of
outputs, including the following:
    Speech Output--The Department proposed to require that speech
output be delivered through an industry-standard connector or a handset
and asked whether delivering speech output through either of these
means should be required. We wanted to know whether it would be
sufficient to require volume control for the automated airport kiosk's
speaker only without requiring any other mode of voice output and about
any privacy concerns with a speaker-only arrangement. We also asked
about the costs associated with providing a handset or industry
standard connector and about the costs/benefits of requiring a speaker
only, without a handset or headset output capability. We inquired about
wireless technology to allow people with disabilities to use their own
Bluetooth enabled devices in lieu of requiring the kiosk itself to have
a handset or headset connector, and if so, whether it should be
required.
    Volume Control--We asked whether the dB amplification gain
specified for speakers was sufficient and about the need for volume
control capability for outputs going to headphones or other assistive
hearing devices.
    Tickets and Boarding Passes--Regarding transactional outputs (e.g.,
receipts, tickets), we proposed to require that the speech output must
include all information necessary to complete or verify the
transaction. We listed certain types of information accompanying
transactions that must be provided in audible format, as well as
certain supplemental information that need not be, and whether any
other information should be required to be audible.
    Comments: Speech Output--In descending order of preference,
commenters supported supplying standard headset connectors, handsets,
or speakers as the method for delivering speech output. In response to
our question whether requiring volume control for the automated airport
kiosk's speaker alone without requiring any other mode of voice output,
ITI stated that it would not recommend working with a speaker-only
solution. They observed that along with privacy concerns, the ambient
noise levels in airports would present difficulties. The Trace Center,
ITI, and a number of individual commenters supported a private
listening option and recommended that a standard connector be provided
for greater privacy during transactions and to allow individuals with
hearing impairments the use of assistive listening technologies (e.g.,
audio loops). The carrier associations said all three methods should be
allowed, in addition to any other equivalent alternative a carrier or
vendor identifies. The Trace Center commented that handsets should be
in addition to, not instead of, a headphone connector and should be
hearing aid compatible if included. Regarding the cost of providing
headset connectors and handsets, ITI said the costs will depend on
whether volume control can be implemented via software or hardware,
whether a physical volume control is required, and whether volume will
need to be at distinct levels or at a continuous level. Carrier
associations cited various reasons for believing that there would be
high costs associated with providing either handsets or headset
connectors, (e.g., need to keep a large supply of handsets on hand for
sanitary reasons or to provide headsets for passengers who forgot their
own).
    Regarding wireless technologies for receiving speech outputs, the
Trace Center supported the wireless concept as an alternative output
method, but noted that a Bluetooth device must be ``paired'' with the
kiosk to ensure user privacy, a process that is too complicated for
many users and usually requires sight. ITI observed that Bluetooth
technology is not widely used in public spaces and that it would not
advocate a requirement for the use of Bluetooth at airport kiosks.
    Regarding speech outputs associated with characters such as
personal identification numbers, both the Trace Center and NFB
suggested that rather than providing a beep tone, which typically
indicates an input error, it would be better to provide the masking
characters as speech (e.g., read the word ``asterisk'' when the
character ``*'' is displayed onscreen).
    Volume Control--In response to our question about the adequacy of
the proposed dB amplification levels, the Trace Center indicated that
the specified volumes for external speakers was sufficient and noted
that absolute volume for headphones cannot be specified due to
differences in headphone equipment.
    Receipts, Tickets, and Boarding Passes--The Trace Center advocated
for requiring speech output upon request for certain types of legally
binding supplemental information (e.g., contracts of carriage,
applicable fare rules) accompanying a transaction, unless the
information was available to the user in an accessible format at an
earlier time (e.g., when the ticket was purchased online).
    Other Suggested Changes--The Trace Center also proposed changes to
require automatic cutoff of an external speaker when a plug is inserted
into the headset connector. There were two new requirements proposed by
the Trace Center related to outputs: one dealing with control over
animation (i.e., a mode of operation to pause, stop, or hide moving,
blinking, or scrolling if information starts automatically, lasts for
more than five seconds, and is presented in parallel with other
content) and one to prohibit lights and displays from flashing more
than three times in any one second period, unless the flashing does not
violate the general flash or red flash thresholds. The latter proposed
requirement is derived from a WCAG 2.0 success criterion on seizure
flash thresholds.\43\
---------------------------------------------------------------------------

    \43\ For further explanation of general flash and red flash
thresholds, see http://www.w3.org/TR/UNDERSTANDING-WCAG20/seizure-does-not-violate.html.
---------------------------------------------------------------------------

    DOT Decision: Speech Output--The Department concurs that a headset
jack potentially offers more flexibility to users in accessing a kiosk,
as well as greater privacy. At the same time, the volume control
requirements for both private listening and external speaker will allow
adequate access to speech outputs without limiting the design options
and cost flexibility. Therefore, this rule allows carriers to choose
whether their accessible automated kiosks will deliver speech outputs
via a headset jack, a handset, or a speaker. We have also decided not
to add a provision to require Bluetooth technology at this time due to
security concerns regarding its use in public spaces and usability
issues associated with pairing Bluetooth devices with airport kiosks.
    Regarding the speech output for masking characters, the Department
is requiring that the masking characters be spoken (``*'' spoken as
``asterisk'') rather than presented as beep tones or speech
representing the concealed information.
    Receipts, Tickets, and Boarding Passes--The Department has not
accepted the suggestion to require that legally binding information be
provided in audio format upon request because in our view the cost
outweighs the benefit. We do not believe the burden to carriers of
providing complex and lengthy documentation in speech format at an
automated kiosk would be balanced by a corresponding benefit to people
with disabilities, particularly when the information is supplemental
(not essential to the transaction itself) and

can be obtained by requesting it from an agent at the airport or
online.
    Other Suggested Changes--The Department has not accepted the
suggested provision to require automatic cut-off of the external
speaker when a headset is plugged into the connector. It is our
understanding that this automatic cut-off is already a standard feature
of devices equipped with connectors. While we believe that equipping
handsets with magnetic coupling to hearing aids may be desirable, the
volume control requirements for both handsets and headset connector
will still provide access and allow greater design flexibility.
Regarding the recommended provisions for animation control and seizure
flash thresholds, we believe they have merit but are premature at this
time. These provisions are appropriate and necessary for video clips
and other animated material that typically are not available on today's
automated airport kiosks. Therefore, the Department has decided that it
will reconsider the need for such provisions, if airport kiosk
functionality evolves to include animated content in the future.

Inputs

    The Department sought public comment on whether there was a need to
revise the proposed requirement for tactilely discernible input
controls to allow for accessible touch screen technology such as that
used by Apple's iPhone and Google's Android products. We asked how
familiar the community of individuals with visual impairments is with
accessible touch screen technology. We also asked about alphabetic and
numeric keypad arrangements and whether the specified function keys and
identification symbols were sufficient for the types of operations
typically performed on airport kiosks functions.
    Comments: Tactilely Discernible Input Controls--The carrier
associations and ITI support allowing either tactilely discernible
controls or accessible touch screen navigation as methods of input. The
Trace Center believes that both methods should be allowed, but that if
gestures on a surface or in three-dimensional space are allowed there
also must be some other method involving tactilely locatable controls.
The Trace Center observed that gestures can work well for people who
are technically savvy but are not easy to use for many people with
disabilities--especially those with manual dexterity disabilities.
    Keypad Controls--The Trace Center made a number of suggestions to
improve tactile controls, the layout of alpha and numeric keys on key
pads (use of QWERTY arrangement), and the use of tactile symbols for
distinguishing function keys on non-ATM style keypads. They also
suggested adding a provision to specify the arrangement of a virtual
onscreen keyboard alphabetically in one mode to facilitate navigation
using arrow keys and voice output. ITI pointed out that airport kiosks
are not usually equipped with keypads and the new standard should not
assume their presence on an accessible kiosk. They further indicated
that keypad arrangements, whether onscreen or external, should not be
specified due to text-to-speech software that reads out each screen
element.
    DOT Decision: The Department has accepted the Trace Center's
suggestion to modify the provision on tactile controls to state that
``at least one input control that is tactilely discernible without
activation shall be provided for each function. We also accepted their
suggestions to require that alphabetic keys on a keypad to be arranged
in a QWERTY keyboard layout with the ``F'' and ``J'' keys tactilely
distinct from the other keys, as well as an option for numeric keys to
be arranged in a row above the alphabetic keys on a QWERTY keyboard. We
did not add any new provisions for enhancing the onscreen navigation of
virtual keyboards for those with visual impairments but will consider
doing so in the future if virtual keyboards are integrated into
automated airport kiosks and there is a need to address their usability
by people with disabilities.

Display Screens

    The Department did not ask specific questions but received a few
comments about the proposed specifications for display screens.
    Comments: The Trace Center suggested that we change the requirement
for display screens such that they must not only be visible, but also
readable, from a point located 40 inches (1015 mm) above the center of
the clear floor space in front of the automated kiosk. Several
commenters requested that the language concerning the required contrast
of characters with their background on visual displays be changed from
``either light characters on a dark background or dark characters on a
light background'' to ``with a minimum luminosity-contrast-ratio of
3:1.'' Trace Center requested that we require a higher contrast ratio
of 4.5:1 for characters that are less than 14-point.
    DOT Decision: We have accepted the suggestion to require display
screen characters and background to have a minimum luminosity-contrast-
ratio of 3:1. This ratio is consistent with that specified in the WCAG
2.0 Success Criteria 1.4.3 on minimum contrast. Combined with the
requirement for characters on the display screen to be in sans serif
font and at least 3/16 inch (4.8 mm) high (based on the uppercase
letter ``I''), the 3:1 contrast ratio will satisfy the success
criterion at Level AA. (For further clarification of this requirement
see the WCAG 2.0 definitions for ``contrast ratio'' and ``relative
luminance'' found at: http://www.w3.org/TR/WCAG20/#contrast-ratiodef
and http://www.w3.org/TR/WCAG20/#relativeluminancedef.)
    Regarding display screen visibility, we have not accepted the
suggestion to require display screens to be readable from a point
located 40 inches above the center of the clear floor space in front of
the kiosk. The proposed requirement that the display screen be visible
from a point located 40 inches above the center of the clear floor
space essentially means that the display screen must not be obscured
from view at that height. A requirement that the display screen be
readable from that height would not be practicable since
``readability'' is a function of many factors, including screen
characteristics (e.g., font size), ambient conditions (e.g., lighting),
and each potential reader's visual acuity when viewing the screen at a
given distance from the eye.

Biometrics

    In the SNPRM, we included a provision stating that biometrics may
be used as the only means for user identification or control where at
least two options using different biological characteristics are
provided. We requested comment on this provision as well as the costs
associated with implementing it.
    Comments: ITI opposed any requirement for more than one biometric
option, saying the cost of more than one biometric device per kiosk
would be prohibitive. They recommended an alternative identification
method be used such as a personal identification number (PIN) for those
who cannot use the biometric option provided.
    DOT Decision: The final provision does not require that more than
one biometric identification option be used unless the only method of
identification the kiosk provides is biometric. The kiosk provider may
also use a non-biometric alternative such as a PIN in lieu of a second
biometric identifier using a different biological characteristic. Our
proposed provision provided alternatives that are accessible for
virtually all individuals with a

disability without imposing unreasonable cost on kiosk providers;
therefore, we are finalizing the proposed requirement.

Other Comments on the Technical Standard

    Several disability organizations' comments urged the Department to
require carriers and airports to consult with individuals with
disabilities on the design and usability of their kiosks that meet the
technical standard. Although the standard we are adopting consists of
well-established and tested design specifications, the Department
nonetheless encourages carriers and airports to consult with disability
advocacy organizations on the usability of their accessible kiosk
during the test phase and to consider adopting any feasible suggestions
for improving its usability and accessibility.
3. Implementation Schedule and Alternatives
Compliance Dates for New Kiosk Orders and Airline/Airport Agreements
    The SNPRM: The Department proposed to require carriers that own,
lease, or control automated airport kiosks or jointly own, lease, or
control shared-use automated kiosks with an airport operator at U.S.
airports with 10,000 or more annual enplanements to ensure that new
kiosks ordered more than 60 days after the effective date of the rule
meet the proposed accessibility standard. We proposed to require the
same of operators of U.S. airports having 10,000 or more annual
enplanements that jointly own, lease, or control shared-use automated
kiosks with airlines. The Department asked whether setting the
effective date to begin ordering accessible kiosks starting 60 days
after the effective date of the rule was too long or too short and what
would be a reasonable amount of implementation time for the ordering
provision. Important to our decision about the compliance time frame is
the ability of the manufacturing sector to meet the demand for
accessible automated airport kiosks. Consequently, we asked a number of
questions about the capabilities of airport kiosk manufacturers to
market accessible models in time to meet the proposed time frame. We
asked about the number of large and small manufacturers that currently
make automated airport kiosks and whether any currently market
accessible models. Assuming that some lead-time would be needed to
develop and start manufacturing an accessible model that meets the
required standard, we asked whether carriers could meet the 60-day
ordering deadline, and if not, how much time would be needed to have a
product ready to market. We also asked about the competitive impact of
the ordering deadline on small manufacturers given the resources of
larger manufacturers to meet demand more quickly.
    We explicitly proposed not to require retrofitting kiosks. For both
carriers and airports that jointly own, lease, or control shared-use
automated kiosks, we proposed to require that they enter into written,
signed agreements allocating their respective responsibilities for
ensuring compliance with the kiosk accessibility requirements. We asked
whether carriers and airport operators should have more than 60 days
after the effective date of the rule to enter into agreements with
airport operators concerning compliance with the kiosk accessibility
requirements, and if so, what would be a reasonable amount of time.
    Comments: The carrier associations recommended a delay of up to 36
months after the rule's effective date to implement the ordering
provision for new accessible kiosks. The carrier associations that
commented jointly estimated it would take as long as one year for
manufacturers to develop compliant prototype kiosks, an additional four
to six months to procure the kiosk hardware, up to one year for
carriers to develop compliant software applications, and six months to
install and test the software. Individual carriers recommended lesser
delays of one to two years for implementing the ordering provision. The
American Aviation Institute (AAI) recommended at least two years from
the rule's effective date to begin implementing the ordering provision.
    In addition to a longer delay in the effective date of the ordering
provision, most industry commenters recommended that only a percentage
of new kiosks ordered be required to comply with the accessibility
standard. The IATA Common Use Working Group stated that the majority of
shared-use airport kiosks follow the international IATA (RP1706c) and
ATA (30.100) Common Use Self-Service (CUSS) Standards. They suggested
that at least one year would be needed to modify and test the standards
for new accessible hardware, updated platform software, and new
software interfaces required to support airline software applications.
Development of airline application software and pilot testing with
integration software could require up to another year. ITI recommended
a delay of 18-36 months from the rule's effective date, which from
their perspective would allow a reasonable amount of time for product
development and manufacturing. They emphasized the importance of
adequate time to design, engineer, and test the accessibility features
to ensure they function effectively, noting that once product
development is completed, inventory and delivery should take 90-120
days. ITI also cautioned that certification, field trials, and
controlled pilots could extend the timeline further, if issues arise
with third parties that are out of the kiosk manufacturer's control.
They did not support recommendations that the Department require only a
portion of new kiosks ordered to be accessible.
    Disability community commenters called for reducing the delay after
the rule's effective date for the new order requirement. United Spinal
and CCD both recommended 30 days after the rule's effective date; BBI
recommended no delay in the effective date of new order provision and
that it coincide with the rule's effective date. The Trace Center,
recognizing that a longer lead time would likely be needed, suggested
that the Department finalize the technical standard and provide it to
interested parties while the final rule is still under review by the
Office of Management and Budget (OMB). In effect, the Trace Center
recommended that the Department give vendors and other organizations
advance notice of the technical standard before the final rule is
published so that they could develop and test an accessible kiosk
prototype before the actual effective date of the rule. They further
recommended that the final rule require that accessible kiosks begin to
be installed in airports shortly after the final rule is published. As
for airports, Denver International Airport concurred with the
Department's proposed effective date of 60 days for new kiosk orders
while San Francisco International Airport suggested extending the
compliance date to six months after the rule's effective date to allow
enough time to complete the airport/airline agreements for shared-use
automated kiosks and prepare the technical specifications.
    We received very few public comments addressing our questions about
the capabilities of the manufacturing sector, none of which came from
manufacturers of airport kiosks. However, our contractor preparing the
regulatory evaluation contacted a number of manufacturers who confirmed
in part what the industry commenters had told us about the longer lead-
time required to develop and produce compliant hardware and

software applications. They explained that airlines with proprietary
kiosks and the in-house capability to program their own software
applications would need less time to comply than airlines that contract
out software development. Manufacturers that produce shared-use kiosks
confirmed the complex development scenario described by the carrier
associations, including an initial phase to revise and test the
international technical standard that applies to such kiosks. They
confirmed that for shared-use kiosks, airports typically procure the
hardware and platform software while the airlines must each develop and
certify their own compliant software application, which then must be
integrated and tested on the hardware--steps that could extend the
compliance time frame. The manufacturers also corroborated ITI's
observations that requiring only a portion of new kiosks to be
accessible would not substantially reduce the development costs for
accessible kiosks.
    DOT Decision: The Department has weighed all the available
information and is persuaded that a compliance deadline of 60 days from
the effective date of the final rule for new kiosk orders is not
feasible. Under this rule, airlines and airports have 36 months after
the rule's effective date to begin installing accessible kiosks at U.S.
airports. There are no automated airport kiosks presently on the market
that meet entire set of the accessibility requirements mandated by this
rule, and discussions with kiosk manufacturers confirm airline
assertions that it could take a substantial amount of time to have
kiosks with fully compliant hardware and platform software developed,
tested, and ready to market for sale. Research conducted by our
contractor indicates that the amount of lead time required to develop
and produce compliant hardware and software applications will vary
significantly depending on whether the kiosks are proprietary or
shared-use and whether their capabilities for software application
development are in-house or contracted. Airlines with proprietary
kiosks and immediate access to applications programming capabilities
may be able to develop and deploy compliant kiosks within 18 to 24
months. For carriers that use shared-use kiosks, however, it may take
more than two years for accessible kiosks to be ready for installation.
    The IATA Common Use Working Group indicated that it would take up
to one year to revise the applicable standards for shared use airport
kiosks, with additional time needed to develop and test the kiosk
hardware and software components for shared-use automated kiosks. ITI
and several other sources have indicated that the current marketplace
for developers of shared-use kiosk software is limited to a few firms.
This suggests that carriers and airports could also face delays in
securing the requisite technical resources. In addition, software
applications for shared-use kiosks must be certified, which the IATA
Working Group indicates can add another 3 months to the time required
to prepare the product for deployment. Apart from the above technical
considerations, a compliance time frame of less than three years could
also result in above-market pricing, since fewer vendors will be able
to develop and test compliant kiosks in less time.
    The Trace Center's recommendation that the Department ``finalize[],
publish[] and provide[] to all interested parties [the accessibility
standard] in advance while the provisions make their way through the
Office of Management and Budget . . .'' might accelerate the
availability of accessible kiosks, but would not be consistent with the
requirements of Executive Order 12866 and the Administrative Procedure
Act. Executive Order 12866 requires Federal agencies to submit the
final rule of any significant agency rulemaking to OMB prior to its
publication in the Federal Register, unless OMB waives its review.\44\
It also prohibits agencies from otherwise issuing to the public any
regulatory action subject to OMB review prior to OMB completing or
waiving its review.\45\ The Administrative Procedure Act specifically
provides that individuals ``may not in any manner be required to resort
to, or be adversely affected by, a matter required to be published in
the Federal Register and not so published.'' \46\ This means the
Department can neither finalize the accessibility standard prior to
OMB's completion of its review nor compel carriers or airports to begin
implementing the standard prior to publication of the final rule in the
Federal Register.
---------------------------------------------------------------------------

    \44\ See Exec. Order 12,866, 58 51735, 51741 (October 4, 1993).
    \45\ See Exec. Order 12,866, 58 FR No. 140 51735, 51743 (October
4, 1993).
    \46\ See 5 U.S.C. 552(a)(1).
---------------------------------------------------------------------------

    In light of these factors, the Department has decided to extend the
compliance time frame for installing new kiosks at U.S. airports to
three years after the rule's effective date. Meeting this deadline will
require some concurrent effort in the development of compliant hardware
and software applications. Carriers and airports will need to be active
participants in the IATA standards development and approval process to
finalize a standard within a time frame that supports the development,
prototyping, and marketing of accessible kiosks and software
applications by the compliance deadline. At the same time, the three-
year lead time before the provision on new kiosk installations becomes
effective will give manufacturers and programmers not presently engaged
in developing accessible kiosks enough time to gear up to participate
in the market. We believe this broadening of the supplier base can be
expected to mitigate the incremental costs of acquiring and installing
accessible kiosks. Based on the input our contractors received from
manufacturers, shortening the compliance deadline may limit the number
of firms that would develop and market compliant hardware and software
applications. In addition, due to the amount of technical coordination
between airlines and airports necessary to develop accessible shared-
use kiosks and their reliance on third-party contractors to develop and
test compliant platform and application software, many airports and
carriers would not be able to meet a shorter compliance deadline.
Ultimately, the Department believes that passengers with disabilities
will benefit significantly from providing kiosk manufacturers and
application developers with a longer period to develop, prototype,
test, and deploy kiosks that effectively meet the required
accessibility standard.
Implementation Alternatives
    The SNPRM: The Department proposed that all new kiosks ordered
after the order deadline must be accessible. We asked for comment on
whether a phasing in period over 10 years, gradually increasing the
percentage of automated airport kiosk orders required to be accessible,
would meaningfully reduce the cost of implementing the accessibility
standard. We also asked whether we should require less than 100 percent
of new airport kiosks to be accessible, and if so, what percentage of
accessible kiosks we should require in each location at the airport. We
noted that if only a percentage of kiosks were required to be
accessible, the wait time for passengers who need an accessible
automated kiosk could be significantly longer than for non-disabled
passengers unless they were given some kind of priority access to those
machines. We observed that any mandate for priority access to
accessible kiosks could also carry the

potential of stigmatizing and segregating those passengers.
    Comments: ITI commented that from a development and manufacturing
perspective, the timelines and resources needed to develop and
incorporate ``new accessibility solutions will be the same, regardless
of whether all, or a percentage of, kiosks are required to comply with
the new rules.'' They added that from their perspective there also
would be no meaningful cost reduction from a gradual phasing in of
accessible kiosks. The carrier associations nonetheless opposed a
requirement for all airport kiosks to be accessible, arguing that this
approach is inconsistent with other Part 382 requirements (e.g.,
movable armrests are only required on fifty percent of aircraft aisle
seats, one accessible lavatory on a twin aisle aircraft) and costly.
They urged the Department to consider two compliance alternatives, each
having a compliance date of 36 months after the effective date of the
final rule: (1) Require ten percent of future kiosks ordered to include
accessible features or, in the alternative, (2) require one accessible
kiosk per passenger check in area at an airport. From their point of
view, a reduced number of accessible kiosks will have no significant
impact on passenger wait times since passengers with a disability who
self-identify would be given priority to use an accessible kiosk,
reducing their wait to the time it would take for someone already using
the accessible kiosk to finish their transaction. In the event more
than one passenger needs to use the accessible kiosk at the same time,
agents will be available to assist. The carrier associations believe
this approach will provide accessible kiosks to those who need and will
use them, while better balancing the costs with the benefits. Air New
Zealand made a similar argument, suggesting that requiring only 25
percent of airport kiosks to be accessible, in combination with
priority access for passengers with disabilities, will provide
passengers with disabilities the independent access they want and limit
the additional financial burden to carriers. Spirit Airlines proposed
that the Department require only 50 percent of new kiosks ordered to be
accessible, until a total of 25 percent of airport kiosks are
accessible. The San Francisco International Airport, on the other hand,
took the position that the Department should require 100 percent of
kiosks to be accessible by a date to be determined after taking
manufacturing capabilities and other factors into consideration. They
saw this approach as the best way to avoid potential problems for
airports having to maintain both accessible and inaccessible kiosk
models.
    DOT Decision: We are requiring that all new kiosks installed at
U.S. airports three years or more after the effective date of the rule
be accessible until at least 25 percent of kiosks in each location at
the airport are accessible. We agree with the comments of Air New
Zealand that having 25 percent of airport kiosks accessible (as opposed
to more than 25 percent), in combination with priority access for
passengers with disabilities to those kiosks, will enable passengers
with disabilities to independently use airport kiosks and limit the
additional costs to carriers and airports associated with acquiring and
installing accessible kiosks. Nonetheless, the Department intends to
monitor implementation of this rule to determine whether delay in
obtaining access to an accessible kiosk is a significant problem for
passengers with disabilities, despite the priority access provision,
especially during peak demand times. If so, we may issue further
regulations to address the matter. Of course, airlines and airports may
always choose to make more than 25 percent of airport kiosks
accessible. As noted by San Francisco International Airport, one
advantage of making 100 percent of airport kiosks accessible is
avoidance of the potential costs associated with maintaining and
supporting both accessible and inaccessible kiosk models.
    As we stated earlier, the requirement for at least 25 percent of
accessible automated airport kiosks at each location in U.S. airports
with 10,000 or more enplanements means that at least 25 percent of
kiosks provided in each cluster of kiosks and all stand-alone kiosks at
the airport must be accessible. For example, in a location where five
kiosks are situated in close proximity to one another, such as near a
ticket counter, at least two of those kiosks must be accessible; in
locations where a single kiosk is provided which is not in close
proximity to another kiosk, the single kiosk must be accessible. In
addition, when the kiosks provided in a location at the airport perform
more than one function (e.g., print boarding passes/bag tags, accept
payment for flight amenities such as seating upgrades/meals/WiFi
access, rebook tickets, etc.), the accessible kiosks must provide all
the same functions as the inaccessible kiosks in that location. These
days many kiosks provide a broad range of functionality beyond simple
check-in. Kiosks that perform different functions are considered to be
of different types. Accessible automated airport kiosks must provide
all the functions provided to customers at that location at all times.
For example, it is unacceptable for the accessible automated airport
kiosks at a particular location to only enable passengers to check-in
and print out boarding passes while the inaccessible automated airport
kiosks at that location also enable passengers to select or change
seating, upgrade class of travel, change to an earlier or later flight,
generate baggage tags and purchase inflight Wi-Fi sessions or other
ancillary services. Whatever functions are available on inaccessible
automated airport kiosks must also be available to customers using
accessible airport kiosks at the same location. As noted above, the 25
percent requirement also applies to each location at the airport where
kiosks are installed. It is not sufficient for a carrier or an airport
to merely comply with the percentage for the airport as a whole, or
even for a given terminal building if there are kiosks in more than one
location in the terminal.
    Based on data from commenters who estimated airport kiosk life
spans, we estimate that the typical kiosk life span is no more than
five to seven years. We believe it is reasonable to conclude that well
before the end of the 10-year period after the effective date of this
rule virtually all airport kiosks will have reached the end of their
life span. As such, a total of at least 25 percent of airport kiosks in
each location at a U.S. airport should have been replaced with an
accessible kiosk by then. To ensure this outcome, we have added
requirements that both carriers and airport operators must ensure that
at least 25 percent of automated kiosk provided in each location at the
airport must be accessible by ten years after the effective date of the
rule. Accessible kiosks provided in each location at the airport must
provide all the same functions as the inaccessible kiosks in that
location.

Retrofitting Kiosks

    The SNPRM: In proposing to require that only new kiosks ordered
after a certain date be accessible, we had also considered proposing to
require carriers to either retrofit or replace a certain percentage or
number of airport kiosks (e.g., retrofit 25 percent of existing kiosks
or replace at least one kiosk) in each location at the airport by a
certain date. We ultimately decided against proposing either option, as
the available information suggests that these approaches would
significantly increase the cost to carriers. Nonetheless, we also had
concerns that the transition time for an accessible kiosk to become
available

at each location in an airport could be more than a decade. The best
life cycle estimates for airport kiosks available to us when the
September 2011 SNPRM was published ranged from seven to ten years. We
therefore asked for comment on the accuracy of our life cycle estimate
and whether the Department should require carriers to retrofit or
replace a certain portion of their kiosks to meet the accessibility
standards until all automated airport kiosks are accessible.
    Comments: Most disability advocacy organizations, individual
commenters who self-identified as having a disability, and some
commenters from the general public supported an interim requirement to
retrofit some percentage of existing kiosks to accelerate the
availability of accessible kiosks at all locations in an airport. The
Trace Center, NFB, and BBI supported a phased retrofit schedule such
that 25 percent of all deployed kiosks must be accessible by 1 year, 50
percent by 3 years, 75 percent by 5 years, and 100 percent by 7 years
after the effective date. NCIL advocated a more accelerated approach
for retrofitting that would have 100 percent of deployed kiosks
accessible by five years after the effective date. PVA urged the
Department to require that any existing kiosk that is altered
(voluntarily modified or refurbished, including any software
modification or upgrade) must be retrofitted to meet the accessibility
standard. The Trace Center conceded that retrofitting ``can be
significantly more expensive than deploying new accessible kiosks'' due
to loss of the lower cost production environment and economies of
scale, as well as the additional costs of taking kiosks out of service
and the actual cost to modify the kiosk. They acknowledged that even
activating dormant accessibility features (e.g., headset connector) can
be a significant undertaking that would take some lead-time to
complete.
    The San Francisco International Airport also recommended
retrofitting some existing kiosks as a reasonable alternative to
requiring only that new kiosks ordered after the effective date be
accessible. They reasoned that if only new kiosks must meet the
accessibility requirements, it would create an adverse incentive for
airlines to maintain older kiosks beyond their useful life and delay
full accessibility for many years. They thought it likely that the
airport industry would be ready to support immediate retrofits.
    Carriers and the carrier associations opposed any kind of
retrofitting. They added that many kiosk models could not be
retrofitted because they are near the end of their life cycle and are
no longer supported by the manufacturer. The IATA CUSS working group
estimated incremental costs of at least $3,000 per kiosk to retrofit to
the DOT standard. ITI said that the costs of retrofitting an existing
kiosk would be difficult to quantify--particularly older kiosks with
operating systems that are not compatible with text-to-speech
technology and may not support software needed for speech output. They
noted that in addition to hardware costs, there would also be software
certification costs. Several manufacturer representatives echoed these
concerns, indicating that there are significant technical feasibility
issues associated with retrofitting.
    DOT Decision: The Department acknowledges that a requirement to
retrofit some percentage of kiosks to meet the accessibility standard
would accelerate the near-term availability of accessible machines at
airports. While more rapid near-term availability of accessible
machines is an important objective, retrofitting is clearly an
expensive, and in some cases, technically infeasible means to
accomplish it. A shortened compliance timeline also runs the risk of
insufficient testing to ensure the successful integration and error-
free operation of all the hardware and software components of
accessible kiosks. In lieu of requiring retrofitting of existing
kiosks, carriers and airports will be required to ensure that at least
25 percent of automated kiosks in each location at an airport are
accessible and that accessible kiosks provided in each location at the
airport provide all the same functions as the inaccessible kiosks at
that location by ten years after the rule's effective date. As
mentioned earlier, with data from carriers and industry experts
confirming that the typical kiosk life cycle is between five and seven
years, we anticipate that 25 percent of kiosks in all locations at an
airport will have been replaced with accessible models well before this
ten-year deadline. Compliant kiosks will begin to be installed in
locations at airports no later than 3 years after the effective date of
this rule.
4. Identification and Maintenance
    The SNPRM: The Department proposed to require carriers and airports
to ensure that each accessible automated kiosk they own, lease, or
control in a location at an airport is visually and tactilely
identifiable as such to users (e.g., an international symbol of
accessibility affixed to the front of the device) and is maintained in
proper working condition, until all automated kiosks in a location at
the airport are accessible. We proposed to apply these requirements to
airlines under Part 382 and to airports under Part 27.
    Comments: The Department received a very small number of comments
on these provisions. Two disability organizations supported the
requirement for affixing an international accessibility symbol. Some
commenters who did not identify as having disabilities noted that a
requirement to affix a symbol or a sign indicating that a particular
kiosk is accessible may be helpful to some individuals with
disabilities, such as those with mobility or cognitive impairments. As
a practical matter, these same commenters noted that for users with
visual impairments, receiving guidance from airline personnel to an
accessible kiosk made more sense than affixing an accessibility symbol
they cannot see and which they could not touch until physically in
front of the machine. Despite such observations, there were no comments
opposing these specific provisions.
    DOT Decision: The Department views the need for accessible
automated kiosks to be identifiable and maintained in working condition
to be of great importance particularly since this rule does not require
100 percent of kiosks to be accessible. Passengers with disabilities
will experience a greater impact than other passengers when accessible
kiosk equipment is out of order since only a portion of them will be
required to be accessible. In assessing carrier/airport responsibility
for accessible kiosks that are down for repair periodically during
their service life, the Department will examine several factors on a
case-by-case basis, including whether maintenance schedules are in
place and followed for all kiosks owned by the carrier/airport and
whether the maintenance schedules and policies followed for both
accessible and inaccessible kiosks are similar. Also, kiosk locations
at the airport will have a mix of accessible and inaccessible machines
so there is value in requiring that accessible kiosk models carry the
international accessibility symbol to allow passengers with a variety
of disabilities maximum independence in locating and using an
accessible kiosk. This requirement will help ensure that adequate
resources are allocated to maintaining accessible kiosks, particularly
during the first few years when there are fewer accessible models at an
airport, for parts and technical training that may otherwise be given
low priority. Since we received no comments opposing the provisions as
proposed and for the other reasons mentioned above, the Department is

retaining these provisions in the final rule.
5. Other Issues--Federal Preemption
    The SNPRM: In the preamble of the September 2011 SNPRM, we stated
that States are already preempted from regulating in the area of
disability civil rights in air transportation under the Airline
Deregulation Act, 49 U.S.C. 41713 and the ACAA, 49 U.S.C. 41705.
    Comments: In their comments on this rulemaking, NFB and NCIL both
urged the Department to rectify what they viewed as erroneous holdings
in two recent court cases alleging that inaccessible airline kiosks and
Web sites constitute disability discrimination under State law.\47\ In
both cases, the court granted the defendant airlines' motions to
dismiss, concluding that Plaintiffs' State-based claims alleging
disability discrimination in air transportation were preempted by the
ACAA and the Airline Deregulation Act.\48\ Specifically NFB and NCIL
asked the Department to use agency discretion to grant passengers with
disabilities, who are protected against disability discrimination under
the ACAA regulations, additional protection under other laws, such as
the State laws at issue in the litigation, by including a saving clause
in Part 382.\49\
---------------------------------------------------------------------------

    \47\ See Nat'l Fed'n of the Blind v. United Airlines, Inc., No.
C 10-04816, p. 3 WHA, 2011 WL 1544524 (N.D. Cal. April 25, 2011) and
Foley et al v. JetBlue Airways Corp., No. C 10-3882, p. 3 (N.D. Cal.
August 3, 2011).
    \48\ See Id.
    \49\ NFB and NCIL recommended identical language for this
provision: ``Nothing in these regulations shall be construed to
invalidate or limit the remedies, rights, and procedures of any
federal law or law of any state or political subdivision of any
state or jurisdiction that provides greater or equal protection for
the rights of individuals with disabilities than are afforded by
these regulations.''
---------------------------------------------------------------------------

    As background, we note that in the case filed by NFB in the United
States District Court for the Northern District of California, the
Department of Justice filed a Statement of Interest By the United
States reflecting the views of the Department of Transportation in
support of United's motion to dismiss. The statement made three central
arguments supporting Federal preemption of NFB's state claims: (1)
Airline kiosks constitute a service that falls within the preemption
provision of the Airline Deregulation Act; (2) the ACAA rules apply
pervasively not only to disability discrimination in aviation
generally, but also to the accessibility of airline kiosks
specifically; and (3) applying a State remedy to NFB's discrimination
claims would have the broad effect of undermining the purpose behind
the ACAA regulations. The court agreed with the views of the United
States, finding that NFB's claims were preempted under both the Airline
Deregulation Act and the ACAA.\50\
---------------------------------------------------------------------------

    \50\ Nat'l Fed'n of the Blind v. United Airlines, Inc., No. C
10-04816, p. 2-3 WHA, 2011 WL 1544524 (N.D. Cal. April 25, 2011).
---------------------------------------------------------------------------

    JetBlue's dismissal motion subsequently adopted the preemption
arguments made in the Statement of Interest By the United States
submitted in the United case, asserting that these views represented
the agency judgment of the Department of Transportation.\51\ The court
did not agree with JetBlue's argument that Web sites and kiosks are
``services'' affecting economic deregulation or competition intended to
fall within the scope of the Airline Deregulation Act and found that
the plaintiffs' State law claims were not preempted by the Act. The
court agreed, however, with JetBlue's arguments that DOT's ACAA
regulations occupy the field of disability non-discrimination in
aviation and preempt State law. Citing provisions in DOT's 2008 final
ACAA rule requiring airlines to provide interim accommodations and its
intent stated in the rule's preamble for further rulemaking on
inaccessible kiosks and Web sites, the court held that the ACAA
regulations specifically preempt the field of airline kiosk and Web
site accessibility ``so as to justify the inference that Congress
intended to exclude state law discrimination claims relating to these
amenities.'' \52\
---------------------------------------------------------------------------

    \51\ Thomas Foley et al. v. JetBlue Airways Corp., No. C 10-
3882, p. 4 (N.D. Cal. August 3, 2011).
    \52\ Id. at 18-20.
---------------------------------------------------------------------------

    The Plaintiffs in both cases appealed the decisions to the Court of
Appeals for the Ninth Circuit. In the NFB case, the United States filed
an amicus curiae brief and reiterated its arguments that NFB's claims
were both field and conflict preempted by the ACAA and expressly
preempted by the Airline Deregulation Act.\53\ The case was argued on
November 8, 2012. However, the Court vacated submission of the case and
will delay its decision pending a decision by the Supreme Court in
Northwest, Inc. et .al. v. Ginsberg, 695 F.3d 873 (9th Cir. 2012),
cert. granted, --S. Ct. --, 2013 WL 2149802 (May 20, 2013) (No. 12-
462).\54\ The parties in the JetBlue case filed an unopposed motion to
stay proceedings pending the court's decision in the NFB case, and the
Court granted that motion on September 22, 2011.\55\
---------------------------------------------------------------------------

    \53\ Brief for the United States as Amicus Curiae Supporting
Affirmance of the District Court's Judgment, Nat'l Fed'n of the
Blind v. United Airlines, Inc., No. 11-16240 (9th Cir. Oct. 18,
2011).
    \54\ Order, Nat'l Fed'n of the Blind v. United Airlines, No. 11-
16240 (9th Cir. May 22, 2013).
    \55\ Order, Foley, et al., v. JetBlue Airways Corp. No. 11-17128
(9th Cir. Sept. 22, 2011).
---------------------------------------------------------------------------

    Notwithstanding the United States' position and the district
courts' holdings of Federal field preemption under the ACAA in both
cases, in its comments on this rulemaking, NCIL pointed to statements
in the Congressional record that the ACAA was enacted to ensure that
airlines eliminate all discriminatory restrictions on air travel by
persons with disabilities not related to safety.\56\ They asserted that
these statements concerning the ACAA are evidence that ``. . . a
saving[s] clause permitting the operation of more protective state laws
[was] squarely contemplated by Congress and should be preserved with a
saving[s] clause.''
---------------------------------------------------------------------------

    \56\ See 132 Cong. Rec. S11, 784-08 (daily ed. Aug. 15, 1986)
(statement of Sen. Dole). See also S. Rep. No. 99-400, at 2, 4
(1986), reprinted in 1986 U.S.C.C.A.N. 2328, 2329, 2331; 132 Cong.
Rec. S11784-08 (daily ed. Aug. 15, 1986); 132 Cong. Rec. H7057-01
(daily ed. Sept. 17, 1986) (statement of Rep. Sundquist); S. Rep.
No. 99-400, at 2 (1986), reprinted in 1986 U.S.C.C.A.N. 2328, 2329-
30.
---------------------------------------------------------------------------

    DOT Decision: The Department fully concurs with NCIL and NFB that
the ACAA was enacted to eliminate discriminatory restrictions by
airlines on air transportation for people with disabilities. We
continue to strongly disagree, however, with the notions that Congress
intended State and local disability non-discrimination laws applied to
aviation to be exempt from preemption under the Airline Deregulation
Act or to operate concurrently with the ACAA. As we outlined in the
Statement of Interest discussed above, the Department believes that the
concurrent operation of State and local laws would undermine certain
central goals of both the ACAA and the Airline Deregulation Act.
    We believe that the detrimental impacts resulting from the
concurrent operation of State/local disability non-discrimination laws
on passengers with disabilities and on air transportation overall are
serious and foreseeable. The saving clause advocated by NCIL and NFB
would subject airlines to non-discrimination requirements in scores of
State and local jurisdictions. Aside from the burden of complying with
a patchwork of State and local disability regulations on airline
economic activity and competition, passengers with disabilities would
again be subject to inconsistency and uncertainty regarding the
accommodations they can expect in air travel. Congress intended that
the ACAA regulations apply accessibility requirements and compliance
deadlines

to covered airlines uniformly. The goal was to ensure that passengers
with disabilities would consistently receive the same accommodations
wherever their air transportation is subject to U.S. law. This outcome
has largely come about today due to airlines throughout the U.S. market
being freed to focus their resources on meeting a single regulatory and
enforcement scheme for ensuring accessibility. Carriers have not had to
scatter their resources training employees to meet varying regulatory
requirements for each State in which the carrier operates. It is our
view that Congress sought to avoid these foreseeable adverse effects
and intended the ACAA regulation to occupy the legal field in this area
in order to maximize accessibility across the entire air transportation
market to which the ACAA applies. Therefore, we believe the public
interest will be best served by not adding a saving provision to Part
382.

Regulatory Analysis and Notices

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

    This action has been determined to be significant under Executive
Order 12866 and the Department of Transportation's Regulatory Policies
and Procedures. It has been reviewed by the Office of Management and
Budget in accordance with Executive Order 12866 (Regulatory Planning
and Review) and Executive Order 13563 (Improving Regulation and
Regulatory Review) and is consistent with the requirements in both
orders. Executive Order 13563 directs agencies to propose or adopt a
regulation only upon a reasoned determination that its benefits justify
its costs, tailor the regulation to impose the least burden on society
consistent with obtaining the regulatory objectives, and in choosing
among alternative regulatory approaches, select those approaches that
maximize net benefits. Executive Order 13563 recognizes that some
benefits and costs are difficult to quantify and provides that, where
appropriate and permitted by law, agencies may consider and discuss
qualitatively values that are difficult or impossible to quantify,
including equity, human dignity, fairness, and distributive impacts.
This rule promotes such values by requiring the removal of barriers to
equal access to air transportation information and services for
passengers with disabilities.
    In the Department's view, the non-quantifiable benefits of kiosk
accessibility, which the tables below do not reflect, are wholly
consistent with the ACAA's mandate to eliminate discrimination against
individuals with disabilities in air transportation. They include the
increased ability of individuals with disabilities to independently
access and use with equal convenience and privacy, and without
stigmatization, the same air transportation information and services
available to individuals without disabilities. Specific non-
quantifiable benefits associated with the kiosk accessibility
requirements also include an enhanced sense of inclusion for travelers
with vision or mobility disabilities, as well as a decrease in the
stigma of special treatment at the ticket counter and in their overall
waiting time to check-in. Having a choice of check-in options (e.g.,
either the automated kiosk or the check-in counter), depending on their
anticipated transaction time or personal preference also has value to
many travelers with disabilities, even if its monetary value cannot be
quantified. The availability of accessible kiosks will also reduce
waiting times at ticket counters for travelers without disabilities who
are required to or choose to use the airline ticket counters for ticket
purchase or check-in and free customer service agents from routine
check-in and seat assignments tasks to focus on individual ticketing
and baggage issues. Travelers with and without disabilities will also
benefit from the design features of accessible kiosks (e.g., travelers
who have difficulty reading English may benefit from having the ability
to hear the kiosk instructions). We note that some of the non-
quantifiable costs include the sunk costs of inaccessible kiosk models
currently under development and occasional increases in kiosk waiting
times that may result for other travelers initially as new users become
familiar with kiosk features and applications.
    Regarding the Web site accessibility requirements, we anticipate
both non-quantifiable and intrinsically qualitative benefits. Web sites
that meet the WCAG 2.0 Level AA standards will have a cleaner layout
and less content per page, resulting in improved accessibility not only
for people with severe vision impairments, but also for those with less
severe disabilities such as low vision, developmental delays, or
epilepsy. Web site accessibility will also remove a barrier to travel
for independent people with severe vision impairments, making it more
likely they will travel and increasing the number of trips they
purchase. For carriers, we expect the process of making their Web sites
accessible (e.g., developing a detailed Web site inventory) to result
in an improved ability to identify and clean up existing errors and
performance issues (e.g., broken links and circular references).
    There are also potentially important categories of costs associated
with the Web site accessibility requirements that are intrinsically
qualitative or for which monetary values cannot be estimated from the
available data. Bringing an entire air travel Web site into compliance
with WCAG 2.0 Level AA, for example, may reduce options for innovation
and creative presentation of Web content. Carriers will also need to
allocate programming resources for creating and updating Web pages to
ensure regulatory compliance that could be used to otherwise improve or
increase functionality on their primary Web sites. Also unknown are the
costs the Department will have to incur to enforce these rules by
acquiring and maintaining the ability to monitor covered air travel Web
sites, conduct periodic testing and verification, and work with
carriers to understand and remedy identified Web site noncompliance.
    The Department believes that the qualitative and non-quantifiable
benefits of the Web site and kiosk accessibility requirements
nonetheless justify the costs and make the rule cost beneficial, even
without the economic benefits displayed in the tables below. The non-
quantifiable benefits to individuals with disabilities, in particular,
are integral to achieving full inclusion and access to the entire
spectrum of air transportation services, which is the overarching goal
of the ACAA.
    The final Regulatory Evaluation established that the monetized
benefits of the final rule exceed its monetized costs by $13.5 million
using a 3-percent discount rate. The benefits and costs were estimated
for the 10-year period beginning two years after the effective date
(which was assumed to be January 1, 2014) for the Web site
accessibility requirements and three years after the effective date for
kiosk accessibility requirements. The upfront compliance costs incurred
for Web sites in 2014 and 2015 and for kiosks in 2015 and 2016 were
rolled forward and included in the 10-year analysis period results
cited in the final regulatory evaluation. The expected present value of
monetized benefits from the final rule over a 10 year period using a 7-
percent discount rate is estimated at $110.7 million, and the expected
present value of monetized costs to comply with the final rule over a
10-year period using a 7-percent

discount rate is estimated at $114.7 million. The present value of
monetized net benefits over a 10 year period at a 7-percent discount
rate is -$4.0 million. The table below, taken from the final Regulatory
Evaluation, summarizes the monetized costs and benefits of the rule.

                               Present Value of Net Benefits for Rule Requirement
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                                Present value
    Monetized benefits and costs      Discounting period/rate     Web sites          Kiosks         (millions)
----------------------------------------------------------------------------------------------------------------
Monetized Benefits..................  10 Years, 7%                      $75.9            $34.8           $110.7
                                       discounting.
                                      10 Years, 3%                       90.3             42.0            132.3
                                       discounting.
Monetized Costs.....................  10 Years, 7%                       79.8             34.9            114.7
                                       discounting.
                                      10 Years, 3%                       82.5             36.1            118.6
                                       discounting.
Monetized Net Benefits..............  10 Years, 7%                       (3.9)            (0.1)            (4.0)
                                       discounting.
                                      10 Years, 3%                        7.8              5.9             13.7
                                       discounting.
----------------------------------------------------------------------------------------------------------------
* Present value in 2016 for Web site requirements and 2017 for kiosk requirements.

B. Executive Order 13132 (Federalism)

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

    \57\ 49 U.S.C. 41713(b)(1).
---------------------------------------------------------------------------

C. Executive Order 13175

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

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities.
We note that while the Regulatory Flexibility Act does not apply to
foreign entities, we have examined the effects of this rule not only on
U.S. airports and air carriers that are small entities under applicable
regulatory provisions, but on small foreign carriers as well. The Web
site accessibility requirements do not impact small U.S. and foreign
carriers. Only carriers that operate at least one aircraft having a
seating capacity of more than 60 passengers are required to make their
Web sites accessible to passengers with disabilities and ensure that
they provide Web-based discounts and waive any telephone or walk-in
reservation fees for individuals unable to use their Web site due to a
disability.
    This final rule also requires small U.S. and foreign carriers that
own, lease, or operate proprietary or shared-use automated kiosks at
U.S. airports with 10,000 or more annual enplanements to install
accessible models at each U.S. airport kiosk location starting three
years after the rule's effective date until at least 25 percent of
automated kiosks provided at each location are accessible and provide
all the same functions as the inaccessible kiosks at each location. The
same requirement applies to operators of U.S. airports with 10,000 or
more annual enplanements that own, lease, or operate shared-use
automated kiosks. Research for our initial regulatory flexibility
analysis identified no small carriers or small airport authorities
covered by the proposed accessibility requirements that owned or
operated kiosks. Moreover, we received no comments on the proposed
requirements during the SNPRM public comment period from small carriers
(those exclusively operating aircraft with 60 or fewer seats), small
airport authorities (those publicly owned by jurisdictions with fewer
than 50,000 inhabitants or privately owned by small entities with
annual revenues of $30 million or less under the Small Business
Administration (SBA) size standard), or other stakeholders that are
small entities. For this final rule, therefore, we conducted no further
analysis on the impact of the kiosk accessibility requirements on small
entities.
    On the basis of the examination discussed above, the Department
certifies that this rule will not have a significant economic impact on
a substantial number of small entities. A copy of the Final Regulatory
Flexibility Analysis has been placed in docket.

E. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), a Federal agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a valid control number
assigned by the Office of Management and Budget (OMB) (Pub. L. 104-13,
49 U.S.C. 3501 et seq.). The Department may not impose a penalty on
persons for violating information collection requirements when an
information collection required to have a current OMB control number
does not have one.
    The final rule contains two new information collection requirements
that require approval by OMB under the PRA. Specifically, section
382.43 requires carriers to provide a mechanism on their Web sites for
passengers to provide online notification of their requests for
disability accommodation services (e.g., enplaning/deplaning
assistance, deaf/hard of hearing communication assistance, escort to
service animal relief area, etc.) within two years after the effective
date of this final rule. Section 382.43 also requires carriers to
ensure that a disclaimer is activated when a user clicks a link on a
primary Web site

to embedded third-party software or an external Web site. The
disclaimer must inform the user that the software/Web site is not
within the carrier's control and may not follow the same accessibility
policies.
    As required by the PRA, the Department invites interested persons
to submit comments on any aspect of these information collections for
60 days, including the following: (1) The necessity and utility of the
information collection, (2) the accuracy of the estimate of the burden,
(3) ways to enhance the quality, utility, and clarity of the
information to be collected, and (4) ways to minimize the burden of
collection without reducing the quality of the collected information.
Organizations and individuals desiring to submit comments on these
information collection requirements should direct them to the Office of
Management and Budget, Attention: Desk Officer for the Office of the
Secretary of Transportation, Office of Information and Regulatory
Affairs, 725 17th Street NW., Washington, DC 20503, and should also
send a copy of their comments to: Department of Transportation, Office
of Aviation Enforcement and Proceedings, Office of the General Counsel,
1200 New Jersey Avenue SE., Washington, DC 20590.
    As noted above, the first of these two new information collections
is mandated by the requirement that carriers that market air
transportation online to customers in the U.S. make a disability
accommodation service request function available on their primary Web
site within two years after the effective date of this rule. The types
of accommodations a passenger with a disability may request through the
function would most often include, but are not limited to, wheelchair
assistance, seating accommodation, escort assistance for a visually
impaired passenger, and stowage of an assistive device. Carriers are
permitted to require that a passenger with a disability provides his/
her contact information (e.g., telephone number, email address) when
making an online service request.
    The Department anticipates that carriers will create a form that
contains 1) check boxes corresponding to a listing of the current IATA
disability-related Special Service Request (SSR) codes currently used
to flag electronic ticket records of passengers requesting assistance,
2) fields for passenger contact information to verify requested
services, and 3) an open text box to describe the specific needs and
the services being requested. We anticipate that each covered U.S. and
foreign carrier that markets scheduled air transportation to the
general public in the United States would incur initial costs
associated with developing and reviewing the design and implementation
plan for the request form, developing, coding, and integrating the form
into the Web site, as well as testing, debugging, and connecting the
form with a backend database to store the information. None of these
initial costs involve recordkeeping or reporting activities under the
meaning of the PRA. The revised final regulatory analysis (FRA)
estimates that it will take an average of 32 labor hours per carrier to
develop, implement, integrate, connect, and test the online request
form. Up to 28 additional hours eventually may be needed to revise
request-handling procedures and to train staff in the changes resulting
from the new form. Should carrier associations or some other entity
develop a common request form that all carriers could adapt and
incorporate to their Web sites, the initial costs per carrier would be
reduced.
    The second information collection is a requirement for carriers to
provide a disclaimer notice for each link on its primary Web site that
enables a user to access software or an external Web site that may not
follow the same accessibility policies as the primary Web site. The
disclaimer notice must be activated the first time a user clicks such a
link before beginning the software download or transferring the user to
the external Web site. We anticipate that each covered U.S. and foreign
carrier that markets scheduled air transportation to the general public
in the United States will incur initial costs associated with
identifying all links on the Web site that may require a disclaimer,
developing and reviewing the design and language for the disclaimer
notice, as well as developing, testing, and deploying the code that
provides this notice to Web site visitors. However, none of these
initial costs involves recordkeeping or reporting activities under the
meaning of the PRA. The incremental labor hours associated with
providing the required disclaimer may vary depending on the number of
links on the Web site to which this requirement applies. The revised
FRA estimates that it will take an average of 6 labor hours per carrier
to develop, test, and deploy the disclaimer notice.
    The title, a description of the respondents, and an estimate of the
annual recordkeeping and periodic reporting burden are set forth below
for each of these information collections:
    1. Requirement to make a disability accommodation service request
function available on the primary Web site.
    Respondents: U.S. and foreign air carriers that own or control a
primary Web site that markets air transportation within, to, or from
the United States, or a tour (i.e., a combination of air transportation
and ground or cruise accommodations), or a tour component (e.g., a
hotel stay of a tour) that includes air transportation within, to, or
from the United States, and that operate at least one aircraft with a
seating capacity of more than 60 passengers.
    Estimated Annual Burden on Respondents: 32 hours.
    Estimated Total Annual Burden: 3,552 hours.
    Frequency: One time.
    2. Requirement to provide a disclaimer notice to users when
clicking a link on a primary Web site to embedded third-party software
or an external Web site.
    Respondents: U.S. and foreign air carriers that own or control a
primary Web site that markets air transportation within, to, or from
the United States, or a tour (i.e., a combination of air transportation
and ground or cruise accommodations), or a tour component (e.g., a
hotel stay of a tour) that includes air transportation within, to, or
from the United States, and that operate at least one aircraft with a
seating capacity of more than 60 passengers.
    Estimated Annual Burden on Respondents: 6 hours.
    Estimated Total Annual Burden: 666 hours.
    Frequency: One time.

F. Unfunded Mandates Reform Act

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

    Issued this November 1, 2013, at Washington, DC.
Anthony R. Foxx,
Secretary of Transportation.

List of Subjects

14 CFR Part 382

    Air carriers, Civil rights, Individuals with disabilities,
Reporting and recordkeeping requirements.

14 CFR Part 399

    Administrative practice and procedure, Air carriers, Air rates and
fares, Air taxis, Consumer protection, Small businesses

49 CFR Part 27

    Airports, Civil rights, Individuals with disabilities, Reporting
and recordkeeping requirements

    For the reasons set forth in the preamble, the Department amends 14
CFR parts 382 and 399 and 49 CFR part 27 as follows:

Title 14--Aeronautics and Space

PART 382--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN AIR
TRAVEL

0
1. The authority citation for part 382 continues to read as follows:

    Authority: 49 U.S.C. 41702, 41705, 41712, and 41310.

0
2. Section 382.3 is amended by revising the definition of ``air
transportation'' and adding definitions for ``automated airport
kiosk,'' ``conforming alternate version,'' ``flight-related services,''
``primary (or main) Web site,'' and ``shared-use automated airport
kiosk'' in alphabetical order to read as follows:

Sec.  382.3  What do the terms in this rule mean?

* * * * *
    Air Transportation means interstate or foreign air transportation
or the transportation of mail by aircraft, as defined in 49 U.S.C.
40102. Generally this refers to transportation by aircraft within, to
or from the United States.
* * * * *
    Automated airport kiosk means a self-service transaction machine
that a carrier owns, leases, or controls and makes available at a U.S.
airport to enable customers to independently obtain flight-related
services.
* * * * *