[Federal Register Volume 78, Number 218 (Tuesday, November 12, 2013)]
[Rules and Regulations]
[Pages 67881-67918]
[FR Doc No: 2013-26749]

Vol. 78

Tuesday,

No. 218

November 12, 2013

Part V

Department of Transportation

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

Office of the Secretary

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

14 CFR Parts 382 and 399

49 CFR Part 27

Nondiscrimination on the Basis of Disability in Air Travel:
Accessibility of Web Sites and Automated Kiosks at U.S. Airports and
Accessibility of Aircraft and Stowage of Wheelchairs; Final Rules

Federal Register / Vol. 78 , No. 218 / Tuesday, November 12, 2013 /
Rules and Regulations

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

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Parts 382 and 399

49 CFR Part 27

[Docket No. DOT-OST-2011-0177]
RIN 2105-AD96

Nondiscrimination on the Basis of Disability in Air Travel:
Accessibility of Web Sites and Automated Kiosks at U.S. Airports

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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

SUMMARY: The Department of Transportation is amending its rules
implementing the Air Carrier Access Act (ACAA) to require U.S. air
carriers and foreign air carriers to make their Web sites that market
air transportation to the general public in the United States
accessible to individuals with disabilities. In addition, the
Department is amending its rule that prohibits unfair and deceptive
practices and unfair methods of competition to require ticket agents
that are not small businesses to disclose and offer Web-based fares to
passengers who indicate that they are unable to use the agents' Web
sites due to a disability. DOT is also requiring U.S. and foreign air
carriers to ensure that kiosks meet detailed accessibility design
standards specified in this rule until a total of at least 25 percent
of automated kiosks in each location at the airport meet these
standards. In addition, the Department is amending its rule
implementing the Rehabilitation Act to require U.S. airport operators
meet the same accessibility standards.

DATES: This rule is effective December 12, 2013.

FOR FURTHER INFORMATION CONTACT: Kathleen Blank Riether, Senior
Attorney, Office of the Assistant General Counsel for Aviation
Enforcement and Proceedings, U.S. Department of Transportation, 1200
New Jersey Ave. SE., Washington, DC 20590,<PHONE_NUMBER> (phone), 202-
366-7152 (fax<EMAIL_ADDRESS>You may also contact
Blane A. Workie, Deputy Assistant General Counsel, Office of the
Assistant General Counsel for Aviation Enforcement and Proceedings,
Department of Transportation, at the same address,<PHONE_NUMBER>
(phone),<PHONE_NUMBER> (fax<EMAIL_ADDRESS>You may obtain
copies of this rule in an accessible format by contacting the above
named individuals.

SUPPLEMENTARY INFORMATION: The Department of Transportation is amending
its rule implementing the Air Carrier Access Act (ACAA) to require U.S.
air carriers and foreign air carriers to make their Web sites that
market air transportation to the general public in the United States
accessible to individuals with disabilities. Specifically, we are
requiring U.S. and foreign air carriers that operate at least one
aircraft having a seating capacity of more than 60 passengers to ensure
that their primary Web sites are accessible. The requirements will be
implemented in two phases. Web pages that provide core air travel
services and information (e.g., booking or changing a reservation) must
be accessible by December 12, 2015. All remaining pages on a carrier's
Web site must be accessible by December 12, 2016. Web sites must
conform to the standard for accessibility contained in the widely
accepted Web site Content Accessibility Guidelines (WCAG) 2.0 and meet
the Level AA Success Criteria. In addition, the Department is amending
its rule that prohibits unfair and deceptive practices and unfair
methods of competition to require ticket agents that are not small
businesses to disclose and offer Web-based fares on or after June 10,
2014, to passengers who indicate that they are unable to use the
agents' Web sites due to a disability.
    DOT is also requiring U.S. and foreign air carriers that own,
lease, or control automated airport kiosks at U.S. airports with 10,000
or more annual enplanements to ensure that kiosks installed after
December 12, 2016, meet detailed accessibility design standards
specified in this rule until a total of at least 25 percent of
automated kiosks in each location at the airport meet these standards.
In addition, accessible kiosks provided in each location at the airport
must provide all the same functions as the inaccessible kiosks in that
location. These goals must be met by December 12, 2022. In addition,
the Department is amending its rule implementing the Rehabilitation Act
to require U.S. airport operators that jointly own, lease, or control
automated airport kiosks with U.S. or foreign air carriers to work with
the carriers to ensure that the kiosks installed after December 12,
2016, meet the same accessibility standards. The accessibility standard
for automated airport kiosks set forth in this rule is based, in part,
on the standard for automated teller and fare machines established by
the Department of Justice in the 2010 amendment to its Americans with
Disabilities Act (ADA) rules.

Executive Summary

    The purpose of this rulemaking is to ensure that passengers with
disabilities have equal access to the same air travel-related
information and services that are available to passengers without
disabilities through airline Web sites and airport kiosks. In the
Department's view, equal access means that passengers with disabilities
can obtain the same information and services on airline Web sites and
airport kiosks as conveniently and independently as passengers without
disabilities. We expect this rulemaking to be a major step toward
ending unequal access in air transportation for people with
disabilities resulting from inaccessible carrier Web sites and airport
kiosks.
    Today, individuals with disabilities often cannot use an airline's
Web site because it is not accessible. There are many disadvantages to
not being able to do so even with the existing prohibition on airlines
charging fees to passengers with disabilities for telephone or in-
person reservations, or not making web fare discounts available to
passengers with disabilities who cannot use inaccessible Web sites. For
example, the cheapest prices for air fares and ancillary services are
almost always on the airline's Web site. As a practical matter, the
cheapest fares may not be made available to many consumers with
disabilities who book by phone or in person as they may be unaware of
their right to ask for the Web fare discounts. A few airlines also do
not have telephone reservation operations or ticket offices, making it
particularly difficult for passengers with disabilities to purchase
tickets from them. Inaccessible Web sites also prevent persons with
disabilities from checking out many airlines' fares online for the best
price before making a choice, booking an online reservation any time of
day or night, or avoiding long wait times associated with making
telephone reservations. Many also can't always take advantage of
checking-in early online to save time as passengers without
disabilities can. The reality is that some people with disabilities
currently lack access to most, if not all, of the information and
services on certain carriers' Web sites that are available to their
non-disabled counterparts.
    As for airport kiosks, many passengers today use airport kiosks
when arriving at the airport to finalize their travel preparations,
whether scanning a passport to check in, printing a boarding pass,
cancelling/rebooking a ticket, or printing baggage tags. The
convenience of airport kiosks simplifies the airport

experience of countless travelers as they independently conduct the
necessary transactions and head to their departure gates. For many
passengers with disabilities who are otherwise self-sufficient, using
an airport kiosk can only be done with assistance from others. In many
instances, passengers who cannot use a kiosk due to a disability are
simply directed to a line at the ticket counter where they receive
expedited service from an agent. This is not a good solution as it
denies travelers with disabilities their rights to function
independently and excludes them from the advantages other air travelers
enjoy in using kiosks.
    The legal authority for the Department's regulatory action
affecting 14 CFR part 382 is 49 U.S.C. 41702, 41705, 41712, and 41310.
Our legal authority for regulatory action affecting 49 CFR part 27 is
Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C.
794). Below is a summary of the major provisions of this regulatory
action.

                       Summary of Major Provisions
------------------------------------------------------------------------

------------------------------------------------------------------------
                         Web Site Accessibility
------------------------------------------------------------------------
Scope/Coverage.........................   Requires U.S. and
                                          foreign carriers that operate
                                          at least one aircraft having a
                                          seating capacity of more than
                                          60 passengers, and own or
                                          control a primary Web site
                                          that markets air
                                          transportation to consumers in
                                          the United States to ensure
                                          that public-facing pages on
                                          their primary Web site are
                                          accessible to individuals with
                                          disabilities.
                                          Requires ticket agents
                                          that are not small businesses
                                          to disclose and offer Web-
                                          based fares to passengers who
                                          indicate that they are unable
                                          to use an agent's Web site due
                                          to a disability.
Web Site Accessibility Standard........   Requires carriers to
                                          ensure that Web pages on their
                                          primary Web sites associated
                                          with core travel information
                                          and services conform to all
                                          Level AA success criteria of
                                          the Web Content Accessibility
                                          Guidelines (WCAG) 2.0 within
                                          two years of the rule's
                                          effective date and that all
                                          other Web pages on their
                                          primary Web sites are
                                          conformant within three years
                                          of the rule's effective date.
Usability Testing of Web Sites.........   Requires carriers to
                                          test the usability of their
                                          accessible primary Web sites
                                          in consultation with
                                          individuals or organizations
                                          representing visual, auditory,
                                          tactile, and cognitive
                                          disabilities.
Equivalent Service.....................   Requires carriers to
                                          provide applicable Web-based
                                          fare discounts and other Web-
                                          based amenities to customers
                                          with a disability who cannot
                                          use their Web sites due to a
                                          disability.
                                          Requires ticket agents
                                          to provide applicable Web-
                                          based fare discounts on and
                                          after 180 days from the rule's
                                          effective date to customers
                                          with a disability who cannot
                                          use an agent's Web sites due
                                          to a disability.
Online Disability Accommodation           Requires carriers to
 Requests.                                make an online service request
                                          form available within two
                                          years of the rule's effective
                                          date 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.
------------------------------------------------------------------------
                  Automated Airport Kiosk Accessibility
------------------------------------------------------------------------
Scope, Coverage, and Kiosk                Requires U.S. and
 Accessibility.                           foreign air carriers that own,
                                          lease, or control automated
                                          airport kiosks at U.S.
                                          airports with 10,000 or more
                                          annual enplanements to ensure
                                          that all new automated airport
                                          kiosks installed three or more
                                          years after the rule's
                                          effective date meet required
                                          technical accessibility
                                          standards until at least 25
                                          percent of automated kiosks in
                                          each location at the airport
                                          is accessible. Accessible
                                          kiosks provided in each
                                          location at the airport must
                                          provide all the same functions
                                          as the inaccessible kiosks in
                                          that location. These goals
                                          must be met within ten years
                                          after the rule's effective
                                          date.
                                          Requires airlines and
                                          airports to ensure that all
                                          shared-use automated airport
                                          kiosks installed three or more
                                          years after the rule's
                                          effective date meet required
                                          technical accessibility
                                          standards until at least 25
                                          percent of automated kiosks in
                                          each location at the airport
                                          is accessible. Accessible
                                          kiosks provided in each
                                          location at the airport must
                                          provide all the same functions
                                          as the inaccessible kiosks in
                                          that location. These goals
                                          must be met within ten years
                                          after the rule's effective
                                          date.
Identification and Maintenance of         Requires carriers and
 Accessible Kiosks.                       airports to ensure that
                                          accessible automated airport
                                          kiosks are visually and
                                          tactilely identifiable and
                                          maintained in working
                                          condition.
Joint and Several Liability............   Makes carriers and
                                          airports jointly and severally
                                          liable for ensuring that
                                          shared-use automated airport
                                          kiosks meet accessibility
                                          requirements.
Priority Access........................   Requires carriers to
                                          give passengers with a
                                          disability requesting an
                                          accessible automated kiosk
                                          priority access to any
                                          available accessible kiosk the
                                          carrier owns, leases, or
                                          controls in that location at
                                          the airport.

Equivalent Service.....................   Requires carriers to
                                          provide equivalent service
                                          upon request to passengers
                                          with a disability who cannot
                                          readily use their automated
                                          airport kiosks.
------------------------------------------------------------------------

Summary of Regulatory Analysis

    The regulatory analysis summarized in the table below shows that
the estimated monetized costs of the Web site and kiosk requirements
exceed their estimated monetized benefits at the 7% discount rate but
the monetized benefits exceed the costs at the 3% discount rate. The
present value of monetized net benefits for a 10-year analysis period
is estimated to be -$4.0 million at a 7% discount rate and $13.7
million at a 3% discount rate. Additional benefits and costs were also
identified for which quantitative estimates could not be developed. The
Department believes that the qualitative and non-quantifiable benefits
of the Web site and kiosk accessibility requirements combined with the
quantifiable benefits justify the costs and make the total benefits of
the rule exceed the total costs of the rule. A more detailed discussion
of the monetized benefits and costs for the final Web site and kiosk
accessibility requirements is provided in the Regulatory Analysis and
Notices section below.

                              Present Value of Net Benefits for Rule Requirements*
                                                   [millions]
----------------------------------------------------------------------------------------------------------------
                                      Discounting period/                                         Present value
    Monetized benefits and costs              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.

Background

    On May 13, 2008, the Department of Transportation (``Department''
or ``DOT,'' also ``we'' or ``us'') amended 14 CFR Part 382 (Part 382),
its ACAA rule, to apply the rule to foreign carriers and to add new
provisions concerning passengers who use medical oxygen and those who
are deaf or hard of hearing, among other things.\1\ The final rule
consolidated and took final action on proposals from three separate
notices of proposed rulemaking (NPRM).\2\ In the preamble of the 2008
final rule, we announced that we would defer final action on certain
proposals and issues set forth in the three NPRMs in order to seek
further information on their cost and technical feasibility through a
supplemental notice of proposed rulemaking (SNPRM). Among the issues we
intended to revisit in the SNPRM was a proposal in the initial NPRM to
require carriers and their agents to make their Web sites accessible to
people with vision impairments and other disabilities. See 69 FR 64364,
64382-83 (November 4, 2004), hereinafter ``Foreign Carrier NPRM.'' We
also pledged to seek further comment on kiosk accessibility, which we
had discussed in the preamble of the initial NPRM. See Id. at 64370. In
the 2008 final rule, as an interim measure, we mandated that carriers
ensure passengers with disabilities who cannot use inaccessible kiosks
or inaccessible Web sites are provided equivalent service.
---------------------------------------------------------------------------

    \1\ 73 FR 27614-27687 (May 13, 2008), as modified by 74 FR
11469-11472 (March 18, 2009) and 75 FR 44885-44887 (July 30, 2010).
    \2\ Nondiscrimination on the Basis of Disability in Air Travel,
Notice of Proposed Rulemaking, 69 FR 64364-64395 (November 4, 2004);
Nondiscrimination on the Basis of Disability in Air Travel--Medical
Oxygen and Portable Respiration Assistive Devices, Notice of
Proposed Rulemaking, 70 FR 53108-53117 (September 7, 2005); and
Accommodations for Individuals Who Are Deaf, Hard of Hearing, or
Deaf-Blind, Notice of Proposed Rulemaking, 71 FR 9285-9299 (February
23, 2006).
---------------------------------------------------------------------------

    On September 26, 2011, the Department published an SNPRM proposing
to require U.S. and foreign air carriers to make their Web sites
accessible to individuals with disabilities and to ensure that their
ticket agents do the same. We also proposed to require U.S. and foreign
air carriers to ensure that their proprietary and shared-use automated
airport kiosks are accessible to individuals with disabilities. In
addition, we proposed to revise our rule implementing Section 504 of
the Rehabilitation Act of 1973, as amended (29 U.S.C. 794) to require
U.S. airports to work with airlines to ensure that shared-use automated
airport kiosks are accessible to individuals with disabilities. The
SNPRM also set forth the technical criteria and procedures that we
proposed to apply to automated airport kiosks and to Web sites on which
air transportation is marketed to the general public in the United
States to ensure that individuals with disabilities can readily use
these technologies to obtain the same information and services as other
members of the public. See 76 FR 59307 (September 26, 2011). Comments
on the SNPRM were to be filed by November 25, 2011.

Request for Clarification and Extension of Comment Period

    In October 2011, the Department received a joint request from the
Air Transport Association (now Airlines for America), the International
Air Transport Association, the Air Carrier Association of America, and
the Regional Airline Association for clarification of the proposal and
a 120-day extension of the comment period. The carrier associations
specifically asked DOT to clarify the following with regard to our Web
site accessibility proposals: 1) whether the scope of the proposed Web
site accessibility requirements included the non-U.S. Web sites of U.S.
carriers (e.g., country-specific Web sites maintained by U.S. carriers
for the purpose of selling to consumers in countries other than the
United States); 2) the meaning of the terms ``primary,'' ``main,'' and
``public-facing'' as used in the proposed Web

site requirements; 3) whether the term ``alternate conforming version''
as described in the SNPRM would encompass ``text-only'' features
offered by some carriers on their primary Web sites; 4) whether
carriers would be responsible under the proposed requirement to ensure
that the Web sites of large tour operators and carrier alliances are
accessible; 5) the Department's authority to regulate ticket agent Web
sites directly under 49 U.S.C. 41712, rather than indirectly through
the carriers under the ACAA; and 6) the basis for our estimates of the
recurring costs associated with maintaining Web site accessibility.
Regarding the Department's kiosk accessibility proposals, the carrier
associations asked for clarification concerning: 1) whether the
Department intended to require some retrofitting of automated airport
kiosks in the final rule in the absence of a specific proposal on the
issue in the SNPRM; and 2) whether automated ticket scanners at U.S.
airports would be covered by the proposed accessibility requirements.
We received additional requests shortly thereafter from the Association
of Asia Pacific Airlines (AAPA) and the Interactive Travel Services
Association (ITSA) to extend the comment deadline.
    By early November 2011, members of the disability community and
advocacy organizations were also requesting that we delay the closing
of the comment period until accessibility issues concerning the comment
form available at www.regulations.gov could be resolved. In response,
we sought expedited action from the Regulations.gov workgroup to
correct the accessibility problems with the form and issued a notice in
the Federal Register on November 21, 2011, outlining alternative
methods for submitting comments until the comment form could be made
fully accessible. See 76 FR 71914 (November 21, 2011). This notice also
addressed the carrier associations' clarification requests and extended
the public comment period until January 9, 2012.
    We responded to the carrier associations' inquiries concerning our
Web site accessibility requirements by explaining that it was our
intention to exclude from the accessibility requirements both U.S. and
foreign air carrier Web sites that market air transportation solely to
consumers outside of the United States. We also further defined
``public-facing'' Web pages as those on a carrier's or agent's Web site
intended for access and use by the general public rather than for
limited access (e.g., by carrier employees only). For carriers that
own, lease, or control multiple Web sites that market air
transportation and offer related services and information, we explained
that its ``primary'' or ``main'' Web site is the one accessed upon
entering the uniform resource locator ``www.carriername.com'' in an
Internet browser from a standard desktop or laptop computer. We note
that some carriers use their IATA airline designator code or other
convention in their primary Web site URL (e.g., www.aa.com, www.virgin-atlantic.com). We further explained that a carrier's text-only Web page
may only be considered a conforming alternate version if (1) it
provides the same content and functionality as the corresponding non-
conforming page on the carrier's primary Web site, (2) it can be
reached via an accessible link from the primary Web site, (3) the
content conforms with WCAG 2.0 Level A and AA success criteria, and (4)
it is promptly updated to reflect all changes to content available to
its non-disabled customers on the primary Web site. In response to the
request for clarification regarding the applicability of the
accessibility requirements to ticket agent Web sites, we also explained
that the requirements would apply to Web sites of large tour operators,
since both travel agents and tour operators fall within the definition
of ticket agent found in 49 U.S.C. 40102(a)(45). Carrier alliance Web
sites, on the other hand, are operated by carriers but are not primary
carrier Web sites and therefore would not be covered.
    Regarding the question raised about the Department's assertion of
its authority to regulate ticket agents directly while proposing to
regulate ticket agents indirectly through the carriers, we stated that
it was our intention to gather more information from the public about
the course of action that would best serve the public interest. We
stated in the notice that the Department's authority under 49 U.S.C.
41712 extends to unfair practices, including discrimination against a
protected class of consumers by ticket agents,\3\ in this case
discrimination against individuals with disabilities who are excluded
from using the agents' inaccessible Web sites solely due to their
disabilities. We acknowledged that the Department of Justice (DOJ) was
also likely to mandate that ticket agents make their Web sites
accessible under a future amendment to that agency's rule implementing
title III of the ADA. At the same time, we stated our intention to
pursue a regulatory approach vis-[agrave]-vis the accessibility of
ticket agent Web sites that would best serve the goal of achieving Web
site accessibility for all in the shortest reasonable time frame.
Finally, we corrected the errors in the SNPRM and preliminary
regulatory evaluation concerning the estimated annual cost of
maintaining Web site accessibility and re-explained the basis of the
cost estimate.
---------------------------------------------------------------------------

    \3\ 49 U.S.C. 41712 authorizes the Secretary of Transportation
to investigate and determine whether an air carrier, foreign air
carrier, or ticket agent has been or is engaged in an unfair or
deceptive practice or an unfair method of competition in air
transportation or the sale of air transportation, and if so, to stop
such practice or method.
---------------------------------------------------------------------------

    Regarding the carrier associations' inquiries about our proposals
concerning accessible automated airport kiosks, we explained that: (1)
Although we did not propose to require retrofitting of existing kiosks,
we were seeking information about the technical feasibility and cost
impact of retrofitting some number of kiosks before the end of their
life cycle if that should be necessary to ensure at least some
accessible kiosks in every location at the airport within a reasonable
time after the rule goes into effect; and (2) automated ticket scanners
would fall within the scope of automated kiosks the Department intended
to cover under the proposed requirements.
    The Department received 84 comments on issues raised in the SNPRM
from industry and advocacy organizations, academic institutions, and
members of the public. The industry comments included: two from airline
associations (the Association of Asia Pacific Airlines (AAPA), as well
as a joint submission by Airlines for America (A4A), the International
Air Transport Association (IATA), Regional Airline Association (RAA)
and Air Carrier Association of America that also included comments from
the Airports Council International--North America (ACI-NA)), two from
airports (San Francisco International and Denver International), three
from U.S. carriers (Spirit Airlines, Allegiant Air, LLC, and Virgin
America), four from foreign air carriers (Air New Zealand Limited, All
Nippon Airways, Condor Flugdienst GmbH, and El Al Israel Airlines
Ltd.), four from travel agency or tour operator associations (a joint
submission by the American Society of Travel Agents (ASTA) and the
National Tour Association (NTA), a joint submission by NTA and Student
and Youth Travel Association (SYTA), as well as separate submissions by
the Interactive Travel Services Association (ITSA), and the United
States Tour Operators Association (USTOA)), and one from a trade
association representing leading companies in the information and

communication technology sector (Information Technology Industry
Council (ITI)). Advocacy organization comments included one airline
passenger consumer organization (Association for Airline Passenger
Rights) and 11 submissions from disability advocacy organizations (a
joint submission by the American Council of the Blind (ACB) and
American Foundation of the Blind (AFB), Consortium for Citizens with
Disabilities (CCD), a joint submission by the National Association of
the Deaf (NAD), Deaf and Hard of Hearing Consumer Advocacy Network
(DEAFCAN), Telecommunications for Deaf and Hard of Hearing, Inc.
(TDHH), Association of Late-Deafened Adults, Inc. (ALDA), Hearing Loss
Association of America (HLAA), and California Coalition of Agencies
Serving the Deaf and Hard of Hearing (CCASDHH), and individual
submissions by Disability Rights New Jersey (DRNJ), Silicon Valley
Independent Living Center (SVILC), National Federation of the Blind
(NFB), United Spinal Association (United Spinal), Association of Blind
Citizens (ABC), National Council on Independent Living (NCIL), American
Association of People with Disabilities (AAPD), Paralyzed Veterans of
America (PVA), and Open Doors Organization (ODO)). Comments from
academic institutes included one each from the Burton Blatt Institute
(BBI) at Syracuse University, the Department of Computer and
Information Sciences at Towson University, and the Trace Research and
Development Center (Trace Center) at the University of Wisconsin, and
two from the Cornell e-Rulemaking Initiative (CeRI) at Cornell
University. There were also 22 individual and joint submissions from
students at the University of Pittsburgh School of Law. Nearly 30
individual members of the public also posted comments, 21 of whom
identified themselves as persons with disabilities or relatives of the
same.
    One submission from the Cornell e-Rulemaking Initiative consisted
of summaries of the public discussion on the SNPRM proposals that
occurred on its Regulation Room Web site, http://www.regulationroom.org. The Regulation Room Web site is a pilot project
in which members of the public can learn about and discuss proposed
Federal regulations and provide feedback to agency decision makers. The
Department partnered with Cornell University on this open government
initiative of the Obama administration in order to discover the best
ways to use Web 2.0 and social networking technologies to increase
effective public involvement in the rulemaking process. During the
period the SNPRM was available for comment on the Regulation Room Web
site, there were nearly 8,000 unique visitors to the site. Those who
registered to participate in the discussion totaled 53 and of those, 29
identified as having a disability. A total of 103 comments were posted
by 31 of the 53 registered respondents, with 18 comments submitted by
respondents identifying as having a disability. The Regulation Room
submitted summaries to the Department of the online discussions
addressing the accessibility standards, applicability, scope of the
requirements, benefits and costs, and implementation approach of the
proposed accessibility requirements for both Web sites and kiosks.
    The Department has carefully reviewed and considered all the
comments received. A summary of the proposed requirements and related
questions asked in the SNPRM, the public comments responsive to those
proposals, and the Department's responses are set forth in the sections
that follow.

Summary of Comments and Responses

Web Site Accessibility

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

    \4\ 49 U.S.C. 40102(a)(5) defines ``air transportation'' as
foreign air transportation, interstate air transportation, or the
transportation of mail by aircraft. 49 U.S.C. 40102(a)(23) defines
``foreign air transportation'' as the transportation of passengers
or property by aircraft as a common carrier for compensation, or the
transportation of mail by aircraft, between a place in the United
States and a place outside of the United States when any part of the
transportation is by aircraft. 49 U.S.C. 40102(a)(25) defines
``interstate transportation'' as the transportation of passengers or
property by aircraft as a common carrier for compensation, or the
transportation of mail by aircraft between a place in a State,
territory, or possession of the United States and (i) a place in the
District of Columbia or another State, territory, or possession of
the United States; (ii) Hawaii and another place in Hawaii through
the airspace over a place outside Hawaii; (iii) the District of
Columbia and another place in the District of Columbia; or (iv) a
territory or possession of the United States and another place in
the same territory or possession; and when any part of the
transportation is by aircraft.
---------------------------------------------------------------------------

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

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

    \5\ In the September 2011 SNPRM, the Department defined core air
travel services and information on Web sites as the booking and
check-in functions as well as information pertaining to personal
flight itinerary, flight status, frequent flyer account, flight
schedules, and carrier contact information available to consumers on
a carrier's primary Web site.
---------------------------------------------------------------------------

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

    \6\ See 36 CFR 1194.22, Note par. 2, stating that ``Web pages
that conform to WCAG 1.0, level A (i.e., all priority 1 checkpoints)
must also meet paragraphs (l), (m), (n), (o), and (p) of this
section to comply with this section.''
---------------------------------------------------------------------------

    Although the Association of Asia Pacific Airlines (AAPA) did not
specifically oppose the WCAG 2.0 standard, they noted that requiring
airlines to apply the standard to primary Web sites which include
covered and non-covered content could result in the airlines having to
revamp Web pages and shared electronic data sources outside the scope
of the requirement from which the covered Web sites obtain information.
This concern was echoed by foreign carriers that commented
individually, although none of the comments provided any information
about the amount of non-covered content they anticipated having to
change. AAPA also expressed concern that foreign carriers may
eventually be required by the law of their countries to meet a
different Web site accessibility standard. Another carrier commenting
individually supported compliance with the WCAG 2.0 Level A standard
but only for those portions of its Web site involved in providing core
air transportation information and functions. Other carriers objected
to the Department requiring the WCAG 2.0 standard altogether, opining
that it is ``not widely used on commercial Web sites'' or that the
technical criteria are ``highly subjective.'' One U.S. carrier was
unopposed to the WCAG 2.0 Level AA standard as long as the Department
allowed two years to achieve compliance.
    The American Aviation Institute (AAI) supported the Department's
proposal to require conformance with the WCAG 2.0 Level AA, but again,
only on those pages involved with providing core information and
functions. The Information Technology Industry Council (ITI),
representing 50 leading companies in the information and communications
technology industry, urged the Department not to require any technical
standard other than WCAG 2.0, stating: ``WCAG 2.0 is the most current
and complete standard for web accessibility and is expected to be the
basis for the updated Section 508 also. For harmonization purposes, ITI
strongly recommends only accepting WCAG 2.0.''
    With rare exception, individual commenters who self-identified as
having a disability supported WCAG 2.0 as the applicable standard for
Web site accessibility. Virtually all advocacy organizations
representing individuals with disabilities across the spectrum also
supported WCAG 2.0, with more than half specifically endorsing the
Level AA success criteria as the appropriate standard. All of the
advocacy organization commenters representing individuals who are
blind, deaf, or hard of hearing specifically endorsed the Level AA
success criteria. ACB and AFB also urged the Department to adopt the
Authoring Tools Accessibility Guidelines (ATAG) 1.0, a World Wide Web
Consortium \7\ (W3C) guideline that defines how authoring tools should
assist Web developers in producing Web content that is accessible and
conforms to WCAG. (ATAG will be discussed in a later section on
Implementation Approach and Schedule.) There were a few comments
suggesting that all Level A success criteria and only selected criteria
from Level AA be required.
---------------------------------------------------------------------------

    \7\ The World Wide Web Consortium is an international community
that develops open standards to ensure the long-term growth of the
Web. One of its primary goals is to make the benefits that the Web
enables, including human communication, commerce, and opportunities
to share knowledge, available to all people.
---------------------------------------------------------------------------

    The leading commenters representing ticket agents (ASTA, NTA,
USTOA, and ITSA) felt strongly that the Department should refrain from
requiring carriers to ensure that their agent Web sites conform to the
WCAG 2.0 standard or any other specific accessibility standard at this
time. ITSA, in particular, advocated that the Department allow
carriers, as well as agents, to adopt any acceptable standard at any
compliance level. Citing the DOJ's concurrent rulemaking concerning Web
site accessibility standards applicable to entities covered under ADA
title III regulations,\8\ ticket agent commenters

also urged that both agencies coordinate the technical accessibility
criteria each intends to apply so that Web site accessibility
requirements are consistent. A number of these commenters felt that the
Department should postpone imposing a Web site accessibility standard
for ticket agent Web sites until the DOJ rulemaking is completed.
---------------------------------------------------------------------------

    \8\ 75 FR 43460-43467 (July 26, 2010).
---------------------------------------------------------------------------

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

    \9\ See 75 FR 43452-43460 (title II) and 75 FR 43460-43467
(title III) (July 26, 2010); see also 75 FR 13457 (March 22, 2010)
and 76 FR 76640 (December 8, 2011).
---------------------------------------------------------------------------

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

    \10\ See 75 FR 43460-43467 (July 26, 2010).
    \11\ TEITAC was established in 2006 to review the existing
Section 508 standards and Telecommunications Act accessibility
guidelines and advise the Access Board concerning needed changes,
including the need for standardization across markets globally. Its
members represented the electronic information technology industry,
disability groups, standard-setting bodies in the United States and
abroad, and government agencies. TEITAC recommended in its 2008
final report that the Access Board seek to harmonize the Section 508
standards with the WCAG 2.0 standards to improve accessibility and
facilitate compliance.
    \12\ See 75 FR 13457 (March 22, 2010) and 76 FR 76640 (December
8, 2011).
---------------------------------------------------------------------------

    This consensus is corroborated by many indicators that WCAG 2.0 is
the most robust and well supported accessibility standard currently in
use. The developers of WCAG 2.0 have made an array of technical
resources available on the W3C Web site at no cost to assist companies
in implementing the standard.
    In addition, foreign governments increasingly are adopting WCAG 2.0
Level AA either as guidelines for evaluating nondiscrimination in
providing Web site access \13\ or as the official legal standard for
accessibility on government Web sites.\14\ Australian government
agencies are currently required to be compliant at WCAG 2.0 Level A and
upgrade to Level AA by December 31, 2014.\15\ In August 2011, the
Canadian government adopted a requirement for government agencies to
bring most content on their public Web sites into compliance with the
WCAG 2.0 Level AA standard by July 31, 2013.\16\ The Canadian
government also released a resource tool in March 2013, to assist air
terminal operators in implementing the government's voluntary Code of
Practice on accessibility of non-national airports system air
terminals.\17\ The guidance recommends that terminal operators conform
their Web sites to the WCAG 2.0 standard. All official Web sites of the
European Union institutions are currently expected to follow the WCAG
1.0 guidelines for accessible Web content, and the EU Commission has
proposed to require 12 categories of EU public sector Web sites to meet
WCAG 2.0 at Level AA by December 31, 2014.\18\ Hong Kong government
sites are currently required to meet the WCAG 2.0 at Level AA.\19\ New
Zealand government sites must meet the same standards by July 1, 2017,
with some limited exceptions.\20\ France and Germany have national
standards that are based on, but not identical to, WCAG 2.0 (Level AA),
while United Kingdom government Web sites are required to comply with
either WCAG 1.0 or 2.0 at the AA level.\21\ The European
Telecommunications Standards Institute (ETSI) is seeking public comment
on a draft proposal to adopt harmonized accessibility standards for
European public information and communication technology (ICT)
procurements that specifically proposes WCAG 2.0 Level AA as the Web
content accessibility standard.\22\
---------------------------------------------------------------------------

    \13\ See 76 FR 76640, 76644, nt. 4 (December 8, 2011).
    \14\ See 76 FR 76640, 76644, nt. 5 and 6 (December 8, 2011).
    \15\ See Australian Government Web Guide, http://webguide.gov.au/accessibility-usability/accessibility/ (last visited
July 2, 2013).
    \16\ See Government of Canada Standard on Web Accessibility,
http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?section=text&id=23601
(last visited July 2, 2013).
    \17\ See Accessibility of Non-National Airports System Air
Terminals: Code of Practice, http://www.otc-cta.gc.ca/eng/publication/accessibility-non-national-airports-system-air-terminals-code-practice (last visited August 26, 2013).
    \18\ See Directive of the European Parliament and of the Council
on the Accessibility of Public Sector Bodies' Web sites, http://ec.europa.eu/digital-agenda/en/news/proposal-directive-european-parliament-and-council-accessibility-public-sector-bodies-Web sites
(last visited July 2, 2013).
    \19\ See Guidelines on Dissemination of Information Through
Government Web sites, http://www.ogcio.gov.hk/en/community/web_accessibility/doc/disseminationguidelines.pdf (last visited July 2,
2013).
    \20\ See New Zealand Government (Web Accessibility Standard
1.0), https://webtoolkit.govt.nz/standards/web-accessibility-standard/ (last visited July 2, 2013).
    \21\ See Powermapper Software Blog, Government Accessibility
Standards and WCAG 2.0, http://blog.powermapper.com/blog/post/Government-Accessibility-Standards.aspx (last visited July 9, 2013
    \22\ See Draft EN 301 549 V1.0.0, Human Factors (HF);
Accessibility Requirements for Public Procurement of ICT products
and services in Europe, (2013-02). The public comment period on the
draft closes July 28, 2013.
---------------------------------------------------------------------------

    The Department considered requiring conformance with WCAG 2.0 Level
A success criteria only, which are feasible standards for Web
developers and would ensure the removal of major accessibility
barriers. Level AA, however, contains additional guidelines and
recommendations that provide a more comprehensive level of Web site
accessibility for people with various types of disabilities. Examples
of Level AA success criteria that provide additional access beyond what
Level A provides include minimum contrast ratios for regular and large
text, capability to resize text, consistent order of the navigation
links that repeat on Web pages when navigating through a site, and the
availability of multiple ways for the users to find Web pages on a
site. As the foregoing discussion on government Web site accessibility
standards indicates, the Level AA success criteria are widely regarded
as feasible for Web content developers to implement. Moreover, the
Level AA success criteria appear to be most often

specified when conformance with WCAG is required and are most often
adopted when Web sites voluntarily use WCAG.\23\ Level AAA success
criteria, while providing a high level of accessibility, are not
recommended for entire Web sites because they are much more challenging
to implement and all criteria cannot be satisfied for some Web
content.\24\ For these reasons, the Department is persuaded that Level
AA is the compliance level that can provide the highest practicable
level of Web site accessibility.
---------------------------------------------------------------------------

    \23\ See WCAG 2.0 Overview, http://www.evengrounds.com/wcag-tutorial/overview (last visited July 2, 2013).
    \24\ See Web Content Accessibility Guidelines (WCAG) 2.0, http://www.w3.org/TR/WCAG/ (last visited August 22, 2012.)
---------------------------------------------------------------------------

    Regarding the carrier associations' assertion that requiring
airlines to comply with the WCAG 2.0 standard sets ``a very high bar
that exceeds federal government Web site accessibility requirements,''
we believe they overstate the actual differences between the section
508 and WCAG 2.0 standards. From a practical standpoint, WCAG 2.0
success criteria largely standardize best practices that were developed
in response to the requirements of the current section 508 standards.
In addition, WCAG 2.0 success criteria that do not correspond to the
current section 508 standards were developed to address perceived gaps
and deficiencies in the current section 508 standards. Overall, the
WCAG 2.0 success criteria spell out more specific requirements for
aspects of the Web site coding function than section 508 provides, such
as consistent identification of functional elements that repeat across
Web pages, specific standards for color contrast, multimedia player
controls, and compatibility with assistive technology.
2. Usability and Performance Standards
    The SNPRM: In the September 2011 SNPRM preamble, we asked for
comment on whether we should adopt a performance standard in lieu of or
in addition to the proposed technical standards in the final rule, as
well as on the types and versions of assistive technologies to which
performance standards should apply. We also sought comment on the
feasibility and value of requiring airlines to seek feedback from the
disability community on the accessibility of their Web sites through
periodic monitoring and feedback on their usability. In addition, we
wanted to know whether the Department should require carriers to
develop guidance manuals for their Web site developers on implementing
the WCAG 2.0 standard so that their Web sites are functionally usable
by individuals with disabilities.
    Comments: Disability advocacy organizations strongly urged the
Department to adopt a set of performance standards in addition to the
WCAG 2.0 Level AA technical standard. ACB and AFB advocated the
adoption of a general performance standard consistent with the broader
accessibility standard of effective communication articulated in the
DOJ ADA title II and III regulations.\25\ They argued that mere
compliance with the technical standards would not be enough to ensure
that Web sites would be fully accessible to people with disabilities.
NFB, ABC, NCIL, CCD, and BBI also supported pairing the WCAG technical
standard with a performance standard to ensure accessibility and
usability by a range of individuals with sensory, physical, and
cognitive disabilities. Acknowledging the difficulty of measuring
performance standards, NCIL suggested several possible measures,
including the rate of success of users with disabilities in
accomplishing various tasks on the Web site, the average time it takes
for a group of users with disabilities to accomplish a task as compared
to a group of non-disabled users, and required compatibility of a Web
site with the most widely used accessibility software and technologies
to ensure usability by as many people as possible.
---------------------------------------------------------------------------

    \25\ The Department of Justice requires covered entities to
ensure effective communication through auxiliary aids and services
that are ``provided in accessible formats, in a timely manner, and
in such a way as to protect the privacy and independence of the
individual with a disability.'' See 28 CFR 35.160 (b) and 28 CFR
36.303(c)(1)(ii).
---------------------------------------------------------------------------

    While most industry commenters did not specifically address
performance standards, the carrier associations opposed the adoption of
any kind of prescriptive standard, including specific performance
standards. ITSA noted that making Web pages accessible involves
performance trade-offs and that imposing rigid performance standards
would result in costs and technical challenges that may not be
feasible. The Cornell e-Rulemaking Initiative (CeRI), an academic
initiative working to facilitate public comment on DOT rulemakings,
sought to conform its Web site to WCAG 2.0 at Level AA in preparation
for soliciting public comments on DOT's rulemaking on Web site and
kiosk accessibility. Their experience led them to conclude that
applying performance standards broadly may have limited usefulness.
They note, for example, that performance standards are typically
developed based on a specific version of a specific assistive
technology used to access Web sites and therefore are not useful for
testing earlier versions of the technology (e.g., a Web site that meets
a performance standard accessed by a user with the latest version of
JAWS screen reader software may not meet the performance standard if
accessed using an earlier version of the software). They also noted
that with regard to specific assistive technologies, compatibility with
evolving technical standards and user proficiency has an impact on
whether performance standards are helpful in testing the usability of a
Web site. ITI expressed concern about the many questions related to
specific combinations of browsers, operating systems, assistive
technologies, and disability types that would need to be considered and
the cost impact of developing and testing specific performance
standards. As an alternative, ITI suggested introducing a mechanism for
end users of a Web site that already meets the WCAG 2.0 technical
standard to be able to report on specific accessibility issues
encountered on that Web site.
    BBI supported a requirement for carriers to develop internal
guidance manuals, pointing out that such documents are useful for
training new or temporary employees on implementing the standard and
preventing new accessibility barriers on the Web site. CCD stated that
DOT should act now to develop guidance for carriers on how to implement
technical accessibility standards so that their Web sites will be
functionally usable. DRNJ, on the other hand, noted that since a
substantial amount of free training and guidance materials are
presently available online, a requirement for each carrier to develop
its own guidance manual would appear to be unnecessary. They
recommended that if there is a need for airline-specific material, the
Department should contract with a university or other provider to
create a national center for training and technical assistance. The
carrier associations felt that requiring carriers to produce a guidance
manual would further burden staff members already busy implementing
other passenger protection requirements.
    DOT Decision: The Department is persuaded that adopting specific
performance standards at this time is premature. We strongly believe
that specific measures to ensure the usability of Web sites that meet
the WCAG 2.0 standard are necessary, however. We therefore are
requiring carriers to consult with members of the disability community
to test and provide feedback

on the usability of their Web sites before the applicable compliance
deadline. A carrier is not required to pay a group or individual
representing a disability type to test its Web site. Although we
believe that it is very unlikely that a carrier would be completely
unable to find anyone with whom to consult, if after making a
reasonable effort a carrier is unable to find a person or group
representing a disability type that will test the carrier's Web site at
no expense to the carrier and within a reasonable time period, the
carrier has fulfilled its obligation with respect to the requirement.
    It is worth noting that the Department has required consultation
with disability organizations in implementing certain provisions of its
disability regulation (14 CFR part 382) since March 1990. In the March
1990 final rule, the Department mandated that airlines consult with
organizations representing persons with disabilities in developing
their employee training programs. In the preamble to this 1990 final
rule, we explained that ``[t]he Department continues to believe that
disability groups are a major resource for carriers, to help them
devise practical and comprehensive procedures for accommodating
passengers with a wide variety of disabilities. Consultation basically
means making reasonable efforts to obtain the views of disability
organizations: there is no list of organizations or type of contacts
that the rule specifically mandates.'' See 55 FR 8008, 8043 (March 6,
1990).
    More recently, we refined this requirement in the May 2008 final
rule in response to concerns raised by foreign carriers. In their
comments on the 2004 Foreign Carriers NPRM, some foreign carriers
objected to consulting with disability groups, saying that the
requirement should be waived if they could not find a local disability
group to consult. Disability groups responded to these comments by
suggesting that such a waiver was unnecessary because the U.S.-based
staff of the airline could consult with U.S. groups if necessary. The
following excerpt from the preamble to the 2008 final rule discusses
the Department's decision regarding changes to the consultation
requirement: ``While U.S. disability groups can undoubtedly be a useful
resource for both U.S. and foreign carriers, we do not believe it would
be realistic to require foreign carriers to seek out U.S. disability
groups for consultation (in many cases, U.S.-based personnel of these
carriers would be operations staff, not management and training
officials). Consequently, we have modified the language of this
provision to refer to seeking disability groups in the home country of
the airline. If home country disability groups are not available, a
carrier could consult individuals with disabilities or international
organizations representing individuals with disabilities. We do not
believe that a waiver provision is needed, since it is unlikely that a
carrier would be completely unable to find anyone--home country or
international disability groups, individuals with disabilities--with
whom to consult. As a matter of enforcement policy, however, the
Department would take into consideration a situation in which a carrier
with an otherwise satisfactory training program documented it had made
good faith efforts to consult but was unable to find anyone with whom
to consult.'' 73 FR 27614, 27643 (May 13, 2008). The Department also
already requires U.S. and foreign carriers to consult with local
service animal training organization(s) in providing animal relief
areas for service animals at U.S. airports.
    Similarly, in this final rule, the Department is requiring carriers
to consult with individuals with visual, auditory, tactile, and
cognitive disabilities or organizations representing these disability
types (e.g., American Federation of the Blind, National Federation of
the Blind, National Association of the Deaf, Arthritis Foundation,
United Cerebral Palsy, The Arc, etc.) in testing the usability of their
Level AA-compliant Web sites. Carriers may consult with any individuals
and/or local, national, or international disability organizations whose
input collectively can help them determine how effectively their
accessible Web site addresses the functional limitations of people with
visual, auditory, tactile, and cognitive disabilities. To the extent
that individuals on a carrier's disability advisory board represent
these disability types, the carrier may consult with those individuals
to satisfy the requirement. For disabilities of the types listed above
that are not represented on their advisory boards, carriers will be
obliged to consult with outside individuals or organizations
representing those disability types. We believe that it is very
unlikely that a carrier would be completely unable to find anyone with
whom to consult--either unaffiliated individuals with disabilities or
members of a home country or international disability group--that
represent these disability types and who use or want to use a carrier's
Web site. As a matter of enforcement policy, however, the Department
would take into consideration a situation in which a carrier documented
that it had made good faith efforts but was unable to find a group or
individual willing or able to consult within a reasonable time period.
While the consultation requirement does not mandate that carriers
modify their Web sites using all the feedback obtained from the
consultations, we encourage carriers to make any changes necessary to
ensure access by people with these functional limitations to the extent
that such changes are not unduly burdensome to implement.
    We note that although the WCAG 2.0 standard is geared to making Web
sites accessible to a wide range of individuals with disabilities, the
developers of WCAG 2.0 emphasize that the guidelines are not able to
address the needs of people with all types, degrees, and combinations
of disability. Some disability advocates have criticized WCAG 2.0 as
falling short in providing equal accessibility for individuals with
cognitive disabilities.\26\ These advocates observe that certain WCAG
2.0 Level A and Level AA success criteria target certain accessibility
issues such individuals face (e.g., Success Criterion 2.2.1--Adjustable
Timing, 2.4.7--Focus Visible such that any keyboard operable user
interface has a mode of operation where the keyboard focus indicator is
visible, 3.3.1--Error Identification, 3.3.3--Error Suggestion, and
3.3.4--Error Prevention). The advocates note, however, that the most
significant issues such as difficulty comprehending text are addressed
by optional Level AAA success criteria. Those criteria include Success
Criterion 3.1.5--Reading Level that requires supplementary content or a
version of the content that does not require reading ability greater
than lower secondary level, and Success Criterion 1.4.8--Visual
Presentation requiring unjustified text, text width no more than 80
characters, line spacing of at least one and a half lines within
paragraphs, capabilities for users to select text and background colors
and resize text up to 200%, and other features to assist with
difficulties in tracking and comprehending text. With nearly 5% of the
U.S. population reporting some kind of cognitive disability in
2011,\27\ the Department

acknowledges that even the best accessibility standards currently
available fall short of providing the accessibility needed by many
individuals with cognitive impairments. We are nonetheless encouraged
that the WCAG developers recognize these needs and support additional
measures to advance cognitive, language, and learning access that can
be taken within WCAG 2.0 itself and other ways that go beyond what can
go into the standard.\28\ As efforts to improve accessibility for
different kinds of disabilities continue, usability testing with
individuals representing a variety of disabilities will help in the
interim to improve access until measurable success criteria to address
specific unmet needs can be developed. We believe that the usability
testing strikes a balance between taking reasonable steps to ensure
usability, while limiting the potentially significant costs of meeting
performance standards having minimal usefulness to individuals with
disabilities. The Department encourages disability advocacy
organizations to work with carriers to provide Web site usability
feedback, both during the development and testing process and after the
accessible Web site has been published.
---------------------------------------------------------------------------

    \26\ Richardson, Allie (November 29, 2011). Those WCAG Forgot:
Designing for the Cognitively Disabled. Retrieved July 16, 2013 from
http://orange.eserver.org/issues/7-2/richardson.html.
    \27\ Erickson, W., Lee, C., von Schrader, S. (2013). Disability
Statistics from the 2011 American Community Survey (ACS). Ithaca,
NY: Cornell University Employment and Disability Institute (EDI).
Retrieved July 16, 2013 from www.disabilitystatistics.org.
    \28\ Clark, Joe (November 26, 2006). Letter of invitation re
cognitive language and learning aspects of WCAG 2.0. Retrieved July
16, 2013 from http://joeclark.org/access/webaccess/WCAG/cognitive/message061122.html.
---------------------------------------------------------------------------

    With regard to adopting a requirement for carriers to develop
guidance manuals, the Department concurs that the benefits do not
outweigh the costs. There is an abundance of readily available guidance
on the W3C Web site with detailed information on implementing and
testing each of the technical criteria for each WCAG 2.0 conformance
level. In addition, consultation with members of the disability
community on the usability of conformant Web sites will enhance the
available technical guidance and ensure that carriers have practical
feedback to guide their efforts. As Web content is updated and Web
development standards evolve, we encourage carriers to continue
soliciting feedback from users with disabilities as the best way to
ensure the ongoing accessibility and usability of their Web sites.
3. Scope--Web Sites and Other Electronic Information and Communication
Technologies
    The SNPRM: Our proposal to require carrier Web site accessibility
was limited to all public-facing content on a carrier's primary Web
site marketing air transportation to the general public in the United
States. We did not propose to apply the accessibility standard to any
other Web site a carrier may own, lease, or control (e.g., a mobile Web
site) or to primary carrier Web sites marketing flights exclusively to
the public outside of the United States. The Department asked for
comment on whether we should limit the requirement to certain portions
of the primary Web site (e.g., booking function, checking flight
status), whether the requirements should extend to mobile carrier Web
sites and to other electronic information technologies (e.g., email or
text messaging) used by carriers, and whether any third-party software
downloadable from a carrier's Web site should be required to be
accessible.
Covered Content on Primary Web Sites
    Comments: Regarding the scope of the Web site accessibility
requirements, in general the carrier associations and several
individual carriers advocated limiting the scope to pages on the
primary Web site or on a mobile Web site involved in booking air
transportation. The carrier associations, which strongly advocated for
flexibility and alternative approaches to making Web sites accessible,
urged the Department to consider four options for providing Web site
accessibility from which carriers could choose. The first option was a
text alternative Web site that would provide only the core air travel
information and services (not all of the public-facing content) offered
on the primary Web site. The second option would also provide only core
air travel information and services on a mobile Web site that meets the
MWBP 1.0 standard and is accessible from a link on the primary Web site
or that automatically loads on a Smartphone or other mobile device. The
third option would allow a carrier to make the Web pages that provide
core air travel information and services on a primary Web site
accessible using any Web accessibility standard. The fourth option
would only require carriers to make newly created Web pages on a
primary Web site accessible using any Web accessibility standard
starting two years from the final rule effective date. None of the
options suggested by the carrier associations would require that all
public-facing content on a primary Web site be accessible, although the
fourth option might eventually lead to that result. Commenters who
supported flexibility and carrier choice also expressed the view that
fewer compliance options would inhibit carrier innovation and use of
new technologies, limit Web site utility for all passengers, and result
in an undue burden for the industry. Other industry commenters such as
AAI supported the WCAG 2.0 accessibility standard, but also favored an
approach that would limit the public-facing content on a primary Web
site that must meet that standard. Some commenters who supported
limiting the scope of covered primary Web site content argued that the
cost of making large numbers of infrequently visited pages accessible
will outweigh any benefit to the few people with disabilities who might
visit them. Others argued that providing the core air travel functions
in an accessible format on a mobile or text alternative Web site was a
reasonable solution because it would be less costly than making their
primary Web sites accessible and still provide passengers with
disabilities essential air transportation service information. We note
that carriers generally were in agreement with the core air travel
information and services listed in the second tier of the phased
compliance schedule proposed in the September 2011 SNPRM and to
applying some accessibility standard to all associated Web pages. One
carrier that did not support applying accessibility standards to
carrier Web sites suggested that carriers be required to provide a
phone number to an accessible phone line where equivalent information
and services could be obtained. In its view, this was the best
alternative because it would provide personalized service to passengers
with disabilities and avoid the imposition of high Web site conversion
costs on carriers.
    Disability advocacy organizations and individuals who self-
identified as having a disability unanimously supported the
Department's proposal to require that all public-facing content on a
carrier's primary Web site be accessible. A few commenters who self-
identified as having disabilities did not oppose the use of text-only
Web sites for achieving accessibility, but none supported access to
anything less than all public-facing content on a carrier's Web site.
ITI, the association of leading information and communication
technology companies, stated unequivocally that the complete Web site
(all public-facing content on a carrier's primary Web site versus only
portions necessary to providing core air travel services and
information) should comply with the WCAG 2.0 standard at the conclusion
of the implementation period. The majority of individual commenters
identifying as having a disability and all commenters representing
disability advocacy organizations were also adamantly

against the use of text-only Web sites as an alternative to making the
primary Web site accessible. Their reasons for opposing the text-only
sites will be explained in the discussion on conforming alternate
versions later in this preamble.
    DOT Decision: The Department considered the arguments raised by
carriers and carrier associations in support of compliance options that
limit the scope of primary Web site content that must be accessible.
While the proposed options would undoubtedly result in cost savings to
carriers, they are not the only way to reduce the cost of making Web
sites accessible. Moreover, and most importantly, such options are not
acceptable because the purpose of requiring Web site accessibility is
to attempt to ensure that passengers with disabilities have equal
access to the same information and services available to passengers
without disabilities. Therefore, the Department has decided to retain
in the final rule the requirement we proposed that public-facing
content on a carrier's primary Web site marketing air transportation to
the general public in the United States must be accessible. The
statutory definition of air transportation includes interstate
transportation or foreign air transportation between a place in the
United States and a place outside of the United States. See 49 U.S.C.
40102 (a) (5). For a carrier whose primary Web site markets (i.e.,
advertises or sells) air transportation to the general public in the
United States this generally means that all public-facing Web content
is covered. For a carrier whose primary Web site markets air
transportation as defined above and other flights to the general public
in and outside of the United States, only public-facing content on the
Web site marketing air transportation to the general public in the
United States must be accessible. We recognize that some technical
difficulty may be involved for foreign carriers applying the
accessibility standard to Web sites marketing air transportation to the
public in the United States that draw on data sources not required to
be accessible under our rules. We are not convinced; however, that the
effort to ensure the data from such sources can be used on the covered
Web site will involve such significant expense as to cause an undue
burden. At the same time, there is no requirement for carriers to make
Web pages that market air transportation to the general public outside
of the United States on a covered Web site accessible. Therefore, for
covered Web sites that market both air transportation as defined above
and other flights not within the scope of this rule, we expect carriers
to do what is necessary to render Web pages marketing air
transportation to the general public in the United States accessible.
Carriers will have to decide the best approach to making the covered
Web content accessible based on their business priorities and available
resources. As a practical matter, we recognize that the most
technically efficient and cost effective way to ensure that covered
pages meet the accessibility standard may be for carriers to make all
Web pages accessible on a Web site that markets air transportation to
the general public both inside and outside of the United States and/or
markets flights not covered by the rule. Therefore, we encourage
carriers to bring Web pages covered by the accessibility requirements
into compliance with the WCAG 2.0 Level AA standard using the technical
approach that is most feasible for them given the content and
infrastructure architecture of their Web sites.
Mobile Web Sites, Mobile Apps, and Other Electronic Communication
Technology
    The SNPRM: The Department sought comment on whether carriers should
be required to ensure that their mobile Web sites meet the WCAG 2.0
standard at Level AA or follow the W3C's MWBP 1.0, or both. We asked
whether carriers should be required to ensure that any third party
software downloadable from a link on the carrier's Web site (e.g., deal
finding software) is accessible and to ensure other carrier-initiated
electronic communications such as reservation confirmations, flight
status notifications, and special offer emails are accessible. We also
requested input on the costs and technical feasibility of ensuring that
such content is accessible.
    Comments: The Department received a number of responsive comments
to our questions about the accessibility of mobile Web sites and other
electronic information and communication technologies. Several advocacy
organizations for individuals with vision impairment were pleased that
the Department had acknowledged that primary Web sites represent only a
portion of the air travel-related electronic information and
communication that pose barriers to people with disabilities. These
organizations strongly urged the Department to go further and require
carriers to ensure that their mobile Web sites and other technologies
used for electronic customer interface (e.g., email, text messages, and
mobile applications) are accessible. Some commenters representing
advocacy organizations urged the Department to require carriers to make
their mobile Web sites conform to the W3C's MWBP, while others urged us
to require mobile Web sites to conform to the same WCAG 2.0 Level AA
standard as primary Web sites. Regarding mobile applications (apps),
while some of these commenters acknowledged that most mobile phones are
not yet fully accessible to blind and other visually impaired users,
they felt strongly that mobile apps may overtake Web sites and kiosks
as the method of choice for looking up flight information, selecting
seats, checking in, etc. within the next few years. They urged the
Department to require carriers to ensure that their apps are compatible
with the built-in or external assistive technologies that individuals
with disabilities use. Specifically, they asked us to require carriers
to meet the accessibility standards developed by operating system
developers (e.g., Apple's Human Interface Guidelines for mobile apps
designed for Apple's iOS mobile operating system) or another recognized
standard known to be compatible with available external assistive
technology. As discussed earlier, a few of these commenters also urged
the Department to adopt in 14 CFR part 382 DOJ's ``effective
communication'' standard under ADA titles II and III and require
accessibility of all electronic information and communication
technologies used by carriers to interface with their customers. NCIL
advocated that the Department take a stronger stance in its rulemakings
to reflect the broader rights of people with disabilities to technology
access as described in Section 508. By way of comparison, they observed
the efforts of government agencies to effectively communicate with
people from diverse cultural backgrounds by making their regulations
and guidance documents available in multiple languages on agency Web
sites, through printed media, and via interpreters on the telephone.
NCIL believes that the same concentrated and sustained effort to
include people with disabilities is overdue. They further regard
failure to move in the direction of greater access for people with
disabilities across the spectrum of electronic information and
communication technologies as ``unacceptable, unfair, and
discriminatory'' stating: ``. . . mandates for accessibility of Web
sites . . . [are] long overdue; DOT must not make the same mistake by
neglecting to address

mobile apps until several years from now.''
    Carrier associations and individual carriers generally supported
applying an accessibility standard to mobile Web sites only when the
mobile Web site is the platform for making the content of a carrier's
primary Web site accessible. They acknowledged that mobile Web sites
typically do not contain all the content of primary Web sites. ITSA
encouraged us to adopt a flexible standard for mobile Web sites (e.g.,
the W3C's MWBP). In general, industry commenters either expressed
opposition or did not comment on our questions regarding accessibility
of other electronic information and communication technologies used by
carriers to interface with their customers.
    DOT Decision: The Department unequivocally supports full
accessibility of all electronic information and communication
technologies used by the air transportation industry to interface with
its customers. We believe that certain factors, however, preclude
introducing new accessibility requirements for electronic information
and communication technologies other than Web sites at this time. Four
factors weighed most heavily in our decision: (1) No accessibility
standard specifically for mobile Web sites exists at this time; (2)
accessibility standards such as WCAG 2.0 cannot be readily applied to
mobile applications designed for mobile platforms that are not
accessible; (3) most mobile devices currently on the market are not
accessible to individuals who are blind or visually impaired; and (4)
the need to focus carrier attention and resources on bringing existing
Web sites into compliance with WCAG 2.0 Level AA. We believe the best
approach to expanding accessibility of electronic information and
communication technology in the air travel industry is to allow
carriers to focus their resources on bringing the covered public-facing
content of their primary Web sites into full compliance with the WCAG
2.0 Level AA standard. As they do so, they will acquire expertise and
develop technical efficiencies in implementing the standard. We have
decided, therefore, not to require that mobile Web sites, email, text
messaging, mobile apps, and other electronic communication technologies
be accessible at this time. Nonetheless, we encourage carriers to
develop their mobile Web sites in conformance with the W3C's current
MWBP until such time as a standard for mobile Web sites is developed
and adopted. We also encourage carriers to immediately begin
incorporating accessibility features into email, text messaging, and
other information and communication technologies they use to the extent
feasible. Doing so will immediately and incrementally increase access
to those technologies for individuals with disabilities. In addition,
it may make compliance with any accessibility standard the Department
may require for such technologies in the future easier and less costly.
Embedded Inaccessible Third-Party Plug-In Applications and Links to
Inaccessible External Web Sites and Applications
    Comments: Carrier Web sites may contain content that can only be
read using a software application owned and developed by a third party.
Such applications may be hosted (embedded) on the carrier's Web site,
or the Web site may contain a link to an external Web site where the
application resides. In the September 2011 SNPRM, the Department sought
comment on whether third-party software downloadable from a carrier's
Web site (embedded) should be required to be accessible. The carrier
associations opposed any such requirement, reiterating their position
that the Department should regulate the entities providing the software
directly when it is within the scope of its authority to do so.
Disability advocacy organizations commenting on the issue urged the
Department to require carriers to ensure that downloadable third-party
software is accessible. These commenters pointed out that any contracts
carriers have with the entities producing such software should contain
a provision requiring that it meet the WCAG 2.0 standard. They
specifically noted that section 382.15(b) requires carriers contracting
for services that must be provided under Part 382 to ensure that the
contracts stipulate that the vendor provide the service in accordance
with Part 382. They reasoned that if Part 382 requires a carrier's
public-facing Web content to be accessible, and the carrier contracts
with a third party to provide downloadable software on its Web site,
the contract must stipulate that the software meets the WCAG 2.0
standard. In addition, they urged the Department to require carriers to
work proactively with the producers of inaccessible software that
resides on an external Web site but can be reached from a link on the
carriers' Web sites to repair any accessibility issues.
    DOT Decision: The Department has considered the impact on Web site
accessibility of various scenarios involving inaccessible third-party
software embedded on a carrier's Web site and links to inaccessible Web
sites or software that reside on an external Web site. In the case of
an inaccessible third-party software, such as a deal finder software,
embedded directly on a carrier's Web site, the Department believes that
allowing exceptions for such software on an otherwise accessible Web
site could significantly undermine the goal of equivalent access to Web
site information and services for people with disabilities. Many
companies today sell off-the-shelf Web software (e.g., JavaScript
menus) used by Web site authors. A general exception allowing carriers
to embed inaccessible plug-in software developed by third parties on an
otherwise accessible Web site over time could result in significant
portions of Web sites being excepted from compliance with the WCAG 2.0
standard.
    The Department believes it is incumbent on carriers that intend to
host third-party software of any kind on their Web sites to work with
the developers to ensure that such software meets the WCAG 2.0
standard. This rule does not, however, prohibit a carrier from having
links on its primary Web site to external Web sites and third-party
software that are partially or entirely inaccessible. Such links are
acceptable so long as there is a mechanism on the carrier's Web site
informing the user that the third party software or external Web site
may not follow the same accessibility policies as the primary Web site.
For example, if a carrier's Web site has links to inaccessible external
Web sites containing information and consumer comments about the
carrier's services (e.g., social media Web sites such as Facebook,
Twitter, and YouTube), the carrier must provide a disclaimer when the
link is clicked informing the user that the external Web site is not
within the carrier's control and may not follow the same accessibility
policies (See links to Facebook, Twitter, and YouTube on the Social
Security Administration home page http://ssa.gov). While this approach
is acceptable, we urge carriers generally to avoid linking to external
resources that are known to be inaccessible and to work with the
authors of the external sites whenever possible to develop accessible
modules. For example, Facebook, Twitter, and YouTube have collaborated
successfully with the Web site developers of certain government
agencies to provide an accessible interface for agency-related content
(e.g., see links to Facebook, Twitter, and YouTube on the homepages of
the Department of Education at http://ed.gov and the

Department of Homeland Security at http://dhs.gov).
4. Applicability
    The SNPRM: We proposed to apply the WCAG 2.0 Web site accessibility
standard to U.S. and foreign carrier primary Web sites that market
(i.e., advertise or sell) air transportation to the general public in
the United States. We asked whether the requirements should apply to
the Web sites of the largest U.S. and foreign air carriers only (e.g.,
those that operate at least one aircraft with more than 60 seats), of
carriers that offer charter service only, and of carriers that
advertise air transportation but do not sell airline tickets. As
discussed above, the Department also proposed to require both U.S. and
foreign carriers to ensure the accessibility of Web sites owned or
controlled by agents that are not small business entities and to permit
carriers to market on the inaccessible Web sites of small ticket
agents, if they ensure that those small agents make Web-based discount
fares and amenities available to passengers who indicate they are
unable to use the agent's Web site. We sought comment on whether we
should directly require ticket agents to ensure the accessibility of
their Web sites under 49 U.S.C. 41712, rather than indirectly through
the carriers. We also proposed to require that carriers disclose (and
make available to sell) Web-based discounts and waive telephone or
ticket counter reservation fees for customers indicating that due to a
disability they are unable to use a carrier's inaccessible Web site
(before the Web site conversion deadline). Finally, since individuals
with certain disabilities (e.g., deaf-blind) may not be able to use a
Web site that meets the WCAG 2.0 standard at Level AA without
assistance, we proposed to require carriers to disclose and make
available Web-based discounts and waive telephone or ticket counter
reservation fees for customers indicating that due to a disability they
are unable to use the carrier's accessible Web site after the Web site
conversion deadline.
Applicability to Carrier Web Sites
    Comments: Overall, the majority of commenters favored our proposal
to apply the Web site accessibility requirements to primary carrier Web
sites that market air transportation to the general public in the
United States. Despite their disagreements with the proposed technical
standard, the scope of covered Web site content, and the implementation
time frame, both U.S. and foreign carriers were nearly unanimous in
supporting the concept of carrier Web site accessibility. There were
some comments, particularly among industry commenters, in favor of
limiting applicability of the Web site accessibility requirements based
on carrier size or Web site function.
    The carrier associations who commented jointly urged the Department
to apply the accessibility standard only to carrier Web sites that
offer and sell air transportation. In their view, carrier Web sites
that advertise air transportation but do not sell airline tickets
should be excluded from coverage. Condor Flugdienst noted that foreign
carriers operating a small number of weekly flights to and from the
United States should be permitted an alternative means of compliance
rather than having to make an investment in Web site accessibility
similar to that of foreign carriers that operate more frequent covered
service. All Nippon (ANA) concurred with the notion that basic
information on carrier Web sites should be accessible to consumers with
disabilities but stated that revising its Web sites targeting only U.S.
consumers is impractical because all its Web sites (e.g., targeting
Japan, Asia, Europe) draw on common data sources. The Regional Airline
Association asserted that compliance costs for smaller carriers
operating aircraft with 60 or fewer passenger seats would far outweigh
the benefits but did not explicitly support excluding Web sites based
on carrier size. One industry commenter suggested that DOT should
exclude small or very small carriers with inaccessible Web sites from
the accessibility requirements as long as the large partner carriers
handling online ticket sales, check-in, etc., on their behalf also host
on their own accessible Web sites the core air travel information and
services available on the smaller airlines' inaccessible Web sites.
There were very few comments by individual members of the public and
none by commenters representing the disability community in favor of
excluding any primary carrier Web sites from coverage.
    Carriers raised no objections to the provisions to require
disclosure of Web-based discounts and amenities and waiver of
reservation fees not applicable to other customers for individuals with
disabilities who notify the carrier that they are unable to use a Web
site due to their disability. Some pointed out that this service is
already required by Part 382 so compliance would not pose any
additional burden. Others expressed the view that this provision by
itself would meet the service needs of customers with disabilities
without imposing the cost of compliance with the WCAG standard.
    Several disability commenters, however, expressed dissatisfaction
with the disclosure and fee waiver measures currently required by the
Department when a carrier's Web site is not accessible. These
commenters maintained that carriers frequently do not provide the
discount information or do not waive reservation fees even when the
individual identifies as having a disability. In 2010, Dr. Jonathan
Lazar and students at the Department of Computer and Information
Sciences of Towson State University conducted a study involving test
calls to major carriers to determine how consistently carriers comply
with these requirements. Their findings suggested that there are
compliance problems. After placing a series of 60 phone calls (15 calls
to each of 4 major carriers), students who self-identified as blind and
specifically stated that they were unable to access the carrier's Web
site noted at least one instance per carrier of price discrimination
(e.g., discounted Web-based fares offered online were not disclosed to
the caller or the agent refused to waive the telephone reservation
fee). The rate of compliance failure was as high as 33 percent and 40
percent respectively for two carriers.\29\
---------------------------------------------------------------------------

    \29\ Lazar, Jonathan. ``Up in the air: Are airlines following
the new DOT rules on equal pricing for people with disabilities when
Web sites are inaccessible?'' Government Information Quarterly. 27.4
(October 2010): 329-336. Web. 26 June 2012 http://www.sciencedirect.com/science/article/pii/S0740624X10000638
---------------------------------------------------------------------------

    DOT Decision: After carefully considering the concerns and
compliance alternatives proposed by commenters, the Department has
decided to require U.S. and foreign carriers that operate at least one
aircraft with a seating capacity of more than 60 passengers to apply
the WCAG 2.0 Level AA standard to their primary Web sites that market
air transportation to the general public in the United States
regardless of the carrier's type of passenger operations (e.g., charter
or scheduled), or in the case of foreign carriers, the frequency of
covered flights. We note here that whenever we reference aircraft
passenger seating capacity in this or other economic or civil rights
aviation rulemakings, we are referring to an aircraft's seating
capacity as originally designed by the manufacturer. This requirement
includes the primary Web sites of any such carriers that advertise on
that site but do not sell air transportation there. For carriers that
only advertise air transportation or their role as providers of air
transportation (e.g., contract carriers) on their Web sites, compliance
will be less technically complex and

costly than for carriers that also sell airline tickets. For foreign
carriers for whom air transportation to and from the United States is a
small percentage of their overall operations, some additional
complexity may be involved to convert data drawn from databases that
are not covered by Part 382. But as we discussed earlier, the data
conversion involved does not, in our view, constitute an undue burden.
    On the other hand, we have decided to exclude small carriers
(defined as those exclusively operating aircraft with 60 or fewer
seats) from the requirement to make their primary Web sites accessible
because of concerns about cost burden. When we proposed to require all
carriers, regardless of size, to make their Web sites accessible, our
research indicated that the majority of small carriers operated fairly
simple Web sites that do not offer online booking, check-in or flight
status updates. In updating our research for the final regulatory
evaluation, we found that the Web sites of many smaller carriers have
added online booking engines, one of the more difficult Web site
functions to make accessible. As such, we believe that the additional
cost to comply with the accessibility standard and maintain their Web
site's accessibility would be substantial for small carriers. At the
same time, the benefit for consumers would be small as only a few
carriers exclusively operate aircraft with 60 or fewer seats. We
therefore agree with the Regional Airline Association that the
additional compliance costs for these small carriers are likely to
outweigh the additional benefits to consumers from slightly increasing
the number of carriers subject to these requirements.
    To address carrier sites that are inaccessible to an individual
with a disability before or after the Web site accessibility deadline,
we retain the provisions requiring carriers to disclose Web-based
discounts applicable to the individual's itinerary and waive fees
applicable to telephone or ticket counter reservations for individuals
who contact them through another avenue to make a reservation and
indicate they are unable to access the Web site due to a disability. If
the carrier charges a fee for Web site reservations that applies to all
online reservations, the carrier may charge the same fee to a passenger
with a disability requesting a reservation for a Web-based fare. We
have noted earlier the commenter assertions and the Lazar study
findings that some carriers do not consistently make Web-based
discounts available or waive telephone or ticket counter reservation
fees for those unable to use an inaccessible Web site. Therefore, we
encourage carriers to ensure that their customer service staff is
properly trained to comply with these requirements, as failures in this
regard could result in enforcement action. We also encourage
individuals with disabilities to immediately request a complaints
resolution official (see 14 CFR 382.151) when they encounter any
difficulties obtaining the required accommodation.
Ticket Agent Web sites
    Comments: All carrier associations and individual carriers
commenting on the provision to require carriers to ensure the
accessibility of ticket agent Web sites strenuously opposed it and most
urged the Department to regulate ticket agents directly. These
commenters cited significant added costs to carriers in order to
monitor ticket agent Web sites and a lack of leverage on the carriers'
part to make the agents comply. ANA also sought clarification of the
provision that carriers must ensure compliance with the accessibility
standard on ticket agent ``Web pages on which [their] airline tickets
are sold.'' They wanted to know the extent of a carrier's obligation to
ensure accessibility on agent Web pages, which in addition to the
carrier's fares, display special offers and advertise travel components
(e.g., hotel bookings, rental cars) that are not within DOT's
jurisdiction.
    ANA also raised concerns about Web pages subject to oversight by
more than one carrier if disagreements arise among the carriers as to
whether the pages adequately meet the standard. ANA also wanted to know
about Web pages that are likely to be viewed in the process of booking
a carrier's fares but that do not specifically mention the carrier--
such as disclosures about service fees or refund fees imposed by the
agent. Finally, they raised the possibility that DOJ may subsequently
adopt a Web site accessibility standard that conflicts with the DOT
standard, and asked whether carriers would be obligated to put agents
at risk of DOJ sanctions by insisting that they follow the DOT
standard. We respond to these concerns in the section DOT Decision
below.
    The American Society of Travel Agents (ASTA) and National Tour
Association (NTA) concurred with the view that airlines should not be
quasi-enforcers of ticket agent compliance with Web site accessibility
requirements, stating that the carriers' role should only be to provide
notice to agents of their Web site accessibility obligations (e.g.,
through the Airlines Reporting Corporation). The Interactive Travel
Services Association (ITSA) was the sole commenter representing ticket
agents that supported a requirement for carriers to ensure agent Web
site compliance as long as the sole determinant of compliance is the
accessibility standard DOT mandates and not any additional requirements
that individual airlines may wish to impose.
    Echoing ANA's comments about the scope of agent Web sites, other
industry commenters pointed out that ticket agent Web sites contain
content and functionality that go well beyond the marketing of air
transportation. They observed that compliance with the accessibility
standard would necessarily entail changes to many Web pages unrelated
to air transportation. USTOA in particular argued that few, if any,
tour operator Web sites offer customers the opportunity to purchase air
transportation as a stand-alone product, which typically is offered as
an add-on to supplement a cruise or land tour. They argued that Web
site changes to make pages on which air transportation is marketed
accessible will necessarily involve changes to the site layout and
architecture affecting non-air transportation related Web pages. USTOA
believes that this situation amounts to de facto regulation of travel
products and services outside the scope of the ACAA and the
Department's jurisdiction. Other travel industry commenters noted that
only a small portion of the content on agent Web sites is air
transportation-related and asserted that unless agents undertake the
expense of rendering all the public-facing content on their Web sites
accessible, their Web sites as a whole will not be accessible to
passengers with disabilities under the proposed requirements.
    Commenters representing agents also pointed out that the cost of
converting existing Web sites would be especially difficult for ticket
agents that have minimal in-house resources providing Web site support.
These commenters observed that many travel businesses would have no
choice but to purge existing content and avoid adding any advanced
features on their Web sites rather than incur the high cost of ensuring
that all their covered content is accessible. As an alternative, ASTA/
NTA suggested that DOT consider requiring only new content on agent Web
sites to be accessible, while permitting a safe harbor for existing
content. They reasoned that even with a safe harbor provision, in most
cases the continuous and rapid turnover of content would result in Web
sites coming into compliance over a relatively short period of time.

    For the most part, disability advocacy organizations indicated
their overall concurrence with the Department's proposals and few
commented directly on whether the Department should require carriers to
ensure the accessibility of ticket agent Web sites or ensure the
compliance of ticket agent Web sites directly. Disability advocacy
organizations that did comment on the ticket agent proposal remarked
that carriers should be held responsible for ensuring ticket agent Web
site accessibility through their contracts with the agents. They again
observed that Part 382 already requires carriers to have provisions in
their agreements with contractors that perform services required by
Part 382 on their behalf. See section 382.15(b). A few individual
members of the public who did not identify as having disabilities,
however, did not support a requirement to hold carriers responsible for
ensuring the compliance of ticket agent Web sites.
    In connection with ensuring the accessibility of ticket agent Web
sites, industry commenters and some individual commenters also raised
the concurrent Department of Justice (DOJ) rulemaking to revise its ADA
title III regulations concerning Web site accessibility standards.
These commenters stated that both Federal agencies must coordinate to
ensure that the technical Web site accessibility criteria each will
require are consistent. Some of these commenters urged the Department
to postpone imposing a Web site accessibility standard with regard to
ticket agents until the DOJ rulemaking is completed.
    Finally, the Department received a number of comments on the
proposed provisions for carriers to ensure that agents that are small
businesses and whose Web sites are inaccessible provide Web-based
discounts, services, and amenities to individuals who indicate that
they cannot use the agents' Web sites and who purchase tickets using
another method. ASTA specifically supported this proposal as a viable
trade-off for small entities in lieu of Web site conformance, saying
that such businesses expect to have personal interaction with consumers
anyway, so any additional burden of providing these services offline
should be manageable. Some disability advocacy organizations took
exception to the Department excluding small ticket agents from the
carriers' responsibility to ensure that agent Web sites comply with the
WCAG 2.0 standard. In their view, a requirement for carriers to ensure
that small agents offer Web-based discounts to passengers who self-
identify as having a disability is not practical. They argued that
customers will not necessarily know whether the agent is a small
business and whether or not the agent's Web site should be accessible.
They also objected to the notion that in order to access the same
service as non-disabled people, they must self-identify as having a
disability.
    DOT Decision: The Department has considered the viewpoints for and
against requiring accessibility of ticket agent Web sites and the
question of whether or not carriers should be responsible to ensure
that such Web sites are accessible. After looking at all the available
information, we have decided against requiring carriers to ensure the
accessibility of ticket agent Web sites. We considered limiting the
agent Web sites for which carriers must ensure compliance to those
agents whose annual revenues related to passenger service to, within
and from the United States are $100,000,000 or more. Limiting carriers'
responsibility to ensure the accessibility of ticket agent Web sites to
only the few largest agent Web sites would limit the cost burden to
carriers of monitoring agent Web site compliance with this requirement
while increasing the range of accessible air travel Web sites available
to consumers with disabilities who would benefit from the rule.
    We decided against adopting this approach for two reasons. First,
the Department of Justice (DOJ) has jurisdiction to regulate travel
services as service establishments that are public accommodations under
title III of the ADA, and DOJ expects to issue a proposal in early 2014
on accessibility of public Web sites under ADA title III. The
Department of Justice proposal would address the scope of the
obligation for public accommodations to provide access to their Web
sites for persons with disabilities, as well as the technical standards
necessary to comply with the ADA. Ticket agents, which are public
accommodations under ADA title III, would be covered entities under
DOJ's rulemaking. Although in our view DOT has the rulemaking authority
to require ticket agents to directly comply with the same Web site
accessibility standard as carriers, we acknowledge DOJ's concurrent
authority to do the same and are persuaded that a single consistent
standard that applies to ticket agents for Web site accessibility will
eliminate uncertainty and confusion in converting their Web sites.
    Secondly, we find the carriers' arguments persuasive that a
requirement to ensure that their agents implement the Web site
accessibility standards will be difficult for them to monitor and
enforce. Furthermore, diverting technical resources away from the
development and maintenance of their own primary Web sites in order to
monitor ticket agent Web sites may detract from their efforts to
identify and correct problems that may emerge after the WCAG 2.0, Level
AA standard is implemented on their Web sites. For these reasons, we
feel it will best serve the public interest not to require carriers to
ensure that their ticket agents bring their Web sites into compliance
with WCAG 2.0, Level AA at this time. In the same vein, the Department
has decided not to require carriers to monitor and refrain from using
ticket agents who fail to provide, either over the telephone or at an
agent's places of business, Web-based fares and amenities to
individuals who cannot access an agent's Web site due to their
disabilities. Instead, the Department has decided to amend its rule on
unfair and deceptive practices of ticket agents \30\ to require all
ticket agents that are not considered small businesses under the Small
Business Administration's (SBA) size standards \31\ to disclose and
offer Web-based discount fares to prospective passengers who contact
them through other channels (e.g., by telephone or at an agent's place
of business) and indicate that they are unable to use an agent's Web
site due to a disability.
---------------------------------------------------------------------------

    \30\ 14 CFR 399.80.
    \31\ See 13 CFR 121.201.
---------------------------------------------------------------------------

    The Department has also decided not to include an additional
requirement in the rule on unfair and deceptive practices to prohibit a
ticket agent from charging a fee for reservations made over the phone
or at the agent's place of business to individuals who cannot use the
agent's Web site due to a disability. In our view, amending the unfair
and deceptive practices rule to bar fees is unnecessary since existing
law already prohibits charging a fee in such circumstances. Under the
``reasonable modification'' provision of DOJ's current title III ADA
regulation, covered entities are required to make reasonable
modifications to their policies, practices, and procedures when
necessary to afford the same advantages to individuals with
disabilities as are available to others, unless such modification would
cause a fundamental alteration of the advantage offered.\32\
Furthermore, ADA title III prohibits covered entities from imposing
charges to cover the cost of such reasonable modifications, even when a
charge would normally be assessed to all customers for the same

service.\33\ DOJ's guidance concerning this provision explains that
when a service normally provided at a fee to all customers is provided
to an individual with a disability as a necessary measure to ensure
compliance with the ADA, no fee may be imposed on the individual with a
disability for that service.\34\ The Department believes that these
title III provisions sufficiently establish the obligation of ticket
agents to modify their policies to refrain from charging a fee to
individuals with a disability for Web fares requested over the
telephone or in-person at the agents' places of business when those
individuals indicate that they are unable to access the agent's Web
sites due to their disabilities.
---------------------------------------------------------------------------

    \32\ See 28 CFR 36.302(a).
    \33\ See 28 CFR 36.301(c) which prohibits a public accommodation
from imposing a surcharge on a particular individual with a
disability or any group of individuals with disabilities to cover
the costs of measures, such as the provision of auxiliary aids,
barrier removal, alternatives to barrier removal, and reasonable
modifications in policies, practices, or procedures, that are
required to provide that individual or group with the
nondiscriminatory treatment required by the ADA or its implementing
regulation.
    \34\ See 28 CFR part 36, App. B, p. 223 (September 15, 2010).
---------------------------------------------------------------------------

Implementation Approach and Schedule
    The SNPRM: The Department proposed a three-phase implementation
schedule for ensuring that the carriers' primary Web sites would be
fully compliant by two years after the effective date of the rule. The
first phase would apply only to new or completely redesigned primary
Web sites that would be required to be accessible if placed online 180
days or later after the effective date. We explained that substantial
technical changes such as those affecting a Web site's visual design or
site architecture would constitute a ``redesign.'' The second phase
would require all pages associated with obtaining core air travel
services and information related to these core services, either to be
directly conformant on the carrier's primary Web site, or have
accessible links from the primary Web site to corresponding conformant
pages on a mobile Web site by one year after the effective date. The
third phase would require all public-facing content on the carrier's
primary Web site, including core air travel services and information
previously made accessible on a mobile Web site, to meet the
accessibility standard by two years after the effective date. We also
sought comment on alternative time frames and approaches for
implementation of the WCAG 2.0 standard.
    Comments: Most commenters, whether representing industry or the
disability community, disagreed with the proposed implementation
approach and time frame. Nearly all of the industry comments, for
example, favored a flat two-year implementation deadline for all Web
site changes, rather than the proposed phased approach. Most of the
industry comments favoring a two-year deadline also supported applying
the accessibility standard to only the portion of a carrier's primary
or mobile Web site involved in providing core air travel services and
information. Spirit Airlines offered another option, recommending that
only core air travel service and information pages be compliant with
WCAG 2.0 at Level A by two years after the effective date and with
Level AA by five years after the effective date. Air New Zealand, which
did not object to the proposed WCAG 2.0 Level AA standard or to the
scope (all public-facing Web pages on the primary Web site) argued that
more than two years would be needed to render all covered content
compliant. The Interactive Travel Services Association (ITSA) opposed
the phased implementation timeline and urged the Department to impose a
single compliance deadline of at least 18 months after the effective
date for all Web content. Not all commenters rejected a phased
approach, however. The American Society of Travel Agents (ASTA) opposed
a flat two-year compliance period, stating that the timeline should be
variable, allowing more time to convert larger Web sites. ASTA also
supported a requirement for priority to be given to bringing content
most likely to be used by consumers with disabilities into compliance
first.
    Although many individual commenters who self-identified as having a
disability supported the proposed time frame, disability advocacy
organizations generally considered the time frame too generous. In
their view, the technology already exists to restructure a large Web
site on an accelerated schedule. ACB and AFB found the staggered
implementation time frame confusing and potentially subject to
litigation. They recommended that all Web site pages be compliant by
six months after the effective date, except for certain legacy pages
and content that would pose an undue burden to convert. CCD and NCIL
advocated that at least Web pages providing the core air transportation
services be compliant within six months after the effective date.
    ITI offered several comments on the proposed implementation
approach. They observed that while the technical challenges of Web site
conversion vary greatly among the carriers, it is safe to say that when
accessibility is properly integrated into the development process,
technical efficiencies can be expected over time. They also observed
that while new pages generally can be made accessible more easily than
existing content, both share common back end infrastructure that may
need to be changed. These infrastructure changes may involve additional