## Initial Regulatory Flexibility Analysis

ACAA SNPRM Accessible Kiosks and Web site s

Contract No.: GS

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Order No.: DTOS59

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Project No.:

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Submitted To:


## Office of the Assistant General Counsel
Aviation Enforcement and Proceedings U.S. Department of Transportation 1200 New Jersey Avenue, SE West Build ing Washington, DC 20590

- 0001

Submitted By: 

## Econometrica, Inc.
4416 East

- West Highway Suite 215 Bethesda, Maryland 20814



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## Table of Contents

Introduction and Summary

................................ ................................ ................................ ......... 1

1. Need for the Proposed Requirements

................................ ................................ ................... 3

2. Objectives and Legal Basis for the Proposed Rule

................................ .............................. 4

3. Types and Numbers of Potentially Affected Small Entities

................................ ................ 5

3.1. Small U.S. Air Carriers

................................ ................................ ................................ ....... 5 3.2. Airports

................................ ................................ ................................ ............................... 6 3.3. Travel Agencies and Tour Operators

................................ ................................ .................. 7

4. Nature and Impact of Proposed Requirements on Small Entities

................................ ..... 8

5. Other Applicable Federal Regulations

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## List of Tables

Table 1

- Accessibility Testing of Carrier Web Site Home Pages

................................ .................. 4 Table 2

- Number of U.S. Carriers by Size Class, 2009

................................ ................................ . 6 Table 3

- Passenger Enplanements by Size of Airport, 2009

................................ ......................... 7 Table 4

- Travel Agencies and Tour Operators, 2007

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Page 1 of 10 Pages Econometrica, Inc. August 30 , 2011 

### Introduction and Summary

The U.S. Department of Transportation (DOT) is issuing a Supplemental Notice of Proposed Rulemaking (SNPRM) to ensure that automated airport kiosks and air travel Web site s are accessible to disabled air travelers

. C arriers and airports ( in th e case of shared

- use k iosks) would be required to begin ordering and installing accessible kiosks that comply with the technical standards set forth in the proposed rule. 1 The primary Web site s of U.S. carriers and those of foreign carriers that market air transportation to the general public in the U.S. would be required to meet the Level A and AA criteria included in the Web Content Accessibility Guidelines (WCAG) 2.0 standards for Web site accessibility

. U.S. carriers and foreign carriers would be required to ensure that the Web site s of large travel agencies and tour operators selling air transportation on their behalf also m e et the proposed accessibility standard

. They would not be required to ensure that the Web site s of small travel agencies and tour operators acting as th eir agents are accessible, but would be required to ensure that these small entities provide Web

based discounts and Web

- based amenities upon request to individuals with disabilities who are cannot use their Web site s due to their disability.

The Regulatory Flexibility Act of 1980, as amended, requires Federal agencies to conduct a separate analysis of the economic impact of rules on small entities

. The Regulatory Flexibility Act requires that Federal a gencies take the particular concerns of small entities into account when developing, writing, publicizing, promulgating, and enforcing regulations

. To this end, the Act requires that agencies detail how they have met these concerns by including a Regulatory Flexibility Analysis (RFA)

. An init ial RFA, which accompanies a n NPRM or SNPRM , must include the following five elements:

1. A description of the reasons why action by the Agency is being considered.

2. A succinct statement of the objectives of, and leg al basis for, the proposed rule.

3. A descri ption of

, and, where feasible, an estimate of the number of small entities to whic h the proposed rule would apply.

4. A description of the proposed reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that would be subject to the requirements and the type of professional skills necessary for preparing the report or record.

5. Identification, to the extent practicable, of all Federal rules that may duplicate, overlap, or conflict with the proposed rule.

In this Initial RFA, we provide the information on each of these five elements:

1 Throughout this analysis, the term “kiosk” is specifically used to refer to an automated self

- service transaction machine that is owned, operated, or leased by U.S. and foreign air carriers at a U.S. airport on either a proprietary or shared

- use basis to enable customers to independently obtain flight

- related services . The proposed requirements in the accompanying SNPRM would not apply to other types of electronic kiosks located in airports (e.g., ATMs, traveler information displays, vending machines).Initial Regulatory Flexibility Analysis 10 30

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Page 2 of 10 Pages Econometrica, Inc. August 30 , 2011 1. In Section 1, we describe the current obstacles faced by travelers with disabilities who wish to use automated airport kiosks or air travel Web site s and summarize results from our review of the accessibility characteristics of U.S. and foreign carrier Web site s.

2. Under the Air Carrier Access Act (ACAA), the Department is obligated to take affirmative action to ensure that travelers with disabilities a re provided equal access to air transportation services

. Section 2 describes the ways in which the proposed requirements would help to meet this obligation

.

3. Section 3 provides information on the types and numbers of small U.S. carriers, airports, travel a gencies, and tour operators that would need to comply with the proposed accessibility requirements for kiosks or Web site s

.

4. Small carriers that currently own, lease, or operate proprietary or shared

- use automated kiosks would be responsible for the purcha se, installation, operation, and maintenance of accessible kiosks after the effective date of the rule. A shared

- use automated kiosk is a self

- service transaction machine provided by an airport, a carrier, or an independent service provider with which any carrier having a compliant data set can collaborate to enable its customers to independently access the flight

- related services it offers

. Small carriers and small airports would also need to enter into agreements which delineate responsibilities for ensuring that shared

- use kiosks ordered for each location in an airport comply with the proposed accessibility standard for automated kiosks

. In some instances

, these entities would be responsible for the purchase, installat ion, operation, and maintenance of accessible kiosks

. S mall U.S. carriers that market air transportation to the general public would also need to comply with the proposed Web site accessibility requirements

. U.S. and foreign carriers would be responsible t o ensure that small travel agencies and tour operator s acting as their agents make discounted Web

- based fares and other Web

- based amenities available upon request to passengers who are unable to use their Web site s due to their disability

. A n expanded disc ussion of these requirements and the entities potentially affected by each of them is provided in Section 4.

5. In Section 5, we provide a brief summary of other applicable Federal standards and guidelines relating to self

- service machines and Web site s that could potentially duplicate, overlap, or conflict with the proposed rule

. It should be noted that the Department has coordinated, and continues to coordinate, the proposed technical standards for automated kiosks and air travel Web site s with the U.S. Acc ess Board and the U.S. Department of Justice (DOJ) to ensure that they will be consistent with other potentially relevant standards

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Page 3 of 10 Pages Econometrica, Inc. August 30 , 2011 

### 1

. Need for the Proposed Requirements

Kiosk Accessibility C arriers and airport operators are not currently required to ensure that automated airport kiosks are accessible and usable by travelers with various types of disabilities

. As noted in the preliminary regulatory impact analysis ( RIA ) :

Use of airport kiosks typically reduces check

- in waits and, in some cases, red uces the fees paid by passengers for checked baggage

. However, current

- generation kiosk systems pose significant obstacles to use by travelers with various types of disabilities

. The installation configurations often make access by passengers in wheelchair s difficult or impossible

. Typical automated kiosks also pose some specific challenges to air passengers with visual impairments, cognitive disabilities, or problems with motor skills

. At present

, none of the estimated 1 1 ,000 automated kiosks in U.S. airports are accessible to persons with severe vision disabili ties or to those in wheelchairs, although at least one vendor is currently marketing a demonstration version of an automated airport kiosk that has a variety of accessibility features.

Web S ite Accessibility Only one of the 12 reporting U.S. carriers that markets air transportation to the general public appears to have a specific option which converts its default home page into a version adapted for screen readers and other technologies that mak e it more accessible for blind people and those with severe vision impairments

. The current full versions of other carrier and ticket agent Web site s afford different degrees of accessibility for consumers with various types of disabilities.

We conducted an evaluation of carrier Web site accessibility characteristics in the course of developing the preliminary RIA. The following table summarizes the number of programming issues found in various carrier Web site home pages

, the number of different WCAG 2.0 guidelines violated, and the number of issues identified that are specific to the degree of conformance (“Level AA”) that the Department is proposing to require: 2

2 This research included reviews of 6 small carrier Web sites and 11 very small carrier Web sites. More information on the accessibility reviews conducted is available in the preliminary RIA Appendix.Initial Regulatory Flexibility Analysis 10 30

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Page 4 of 10 Pages Econometrica, Inc. August 30 , 2011 Table 1

- Accessibility Testing of Carrier Web S ite Home Pages

Carrier Category Average Number of Violations (WCAG 2.0 A/AA Level)

Total
Issues Total Guidelines AA Level
Issues

Domestic reporting carriers 80 11 12 other large carriers (> 60 seat aircraft) 116 12 31 small carriers (30

- 60 seat aircraft) 59 9 6 very small carriers (only < 30 seat aircraft) 46 8 15

Foreign carriers with > 1 million U.S. passengers/year 67 9 7 carriers < 1 million U.S. passengers/year 78 9 20 Source: Econometrica, Inc.
, site testing using Qompliance add

- in on Firefox 3.6 browser, April

- May 2011.

These results indicate that there is a broad spectrum of Web site programming issues that would need to be addressed to provide complete access to even the home page of carrier Web site s. This conclusion is equally applicable to the Web site s of both large and small U.S. carriers and to carriers based in foreign countri es as well.



### 2

. Objectives and Legal Basis for the Proposed Rule

The Department issued a final rule in 1990 implementing the 1986 Air Carrier Access Act (ACAA), which prohibits discrimination in the provision of airline service on the basis of disability . The regulations implementing the statute have been revised and extended on numerous occasions, most recently in a final rule published on May 13, 2008

. In that rule, the Department indicated that it intended to issue a subsequent SNPRM that would address , among other issues, accessibility requirements for automated airport kiosks and air travel Web site s.

Kiosk Accessibility The proposed accessibility requirements for automated airport kiosks will help to mitigate the physical barriers faced by travelers with mobility or fine motor skill disabilities, as well as make them usable by those with vision disabilities.

Carriers have previously been required to provide equivalent service to disabled passengers who
cannot use automated airport kiosks under the A CAA ( 49 U.S.C. § 41705)

. The implementing regulations (14 CFR Part 382) would be amended to require carriers to ensure that all new orders for automated airport kiosks are for models that meet the proposed accessibility standard

. Airport facilities are covered under 49 CFR Part 27, which stipulates that programs or activities that receive F ederal financial assistance must not discriminate on the basis of disability

. The Department is proposing to amend these requirements to refer e xplicitly to automated airport kiosks as a specific type of airport facilit y under Part 27 that must meet the accessibility standard

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Page 5 of 10 Pages Econometrica, Inc. August 30 , 2011 Web Site Accessibility The proposed accessibility requirements for air travel Web site s are primarily directed at address ing the need to provide those with vision disabilities with access to online information and services related to air travel

. However, compliance with the WCAG 2.0 Level AA standards would improve the usability of carrier and ticket agent Web site s for thos e with a number of other types of disabilities as well.

The Department considers it a violation of the ACAA ( 49 U.S.C. § 41705) , as well as an unfair and deceptive trade practice ( 49 U.S.C. § 41712 )

, for carrier Web site s not to be accessible to individuals with disabilities

. Further, t he Department’s statutory authority under 49 U.S.C. § 41712 to prohibit unfair and deceptive trade practices and unfair methods of competition applies not only to carrier s but also to “ticket agents.” The Departmen t considers the publi cation of Web site s by ticket agents that are not accessible to individuals with disabilities to be an unfair and deceptive practice

. However, the Department is not proposing to require small ticket agents to make their Web site s acces sible under these statutes

. Rather, the Department proposes to require U.S. and foreign carriers to ensure that the small entities acting as their agents provide Web

- based discounts and other Web

- based amenities upon request to passengers with a disability who are unable to use their Web site s due to their disability.



### 3

. Types and Numbers of Potentially Affected Small Entities

This section describes the types and numbers of small entities in each of the sectors that would be affected by the proposed requirements.

3.1. Small U.S. Air Carriers

Kiosk Accessibility The proposed kiosk accessibility requirements would apply to all U.S. and foreign carriers that own, operate, or lease automated kiosks at U.S. airports

. Small U.S. and foreign carriers with proprietary systems would need to ensure that all new orders for automated airport kiosks are for models that meet the proposed accessibility standard

. Small carriers may also incur costs associated with the installation of shared

- use kiosks in certain airport locations.

However, b ased on a preliminary canvas of airport and carrier Web site s, it does not appear that any small U.S. carriers own, lease, or operate proprietary or shared

- use automated airport kiosks at present

.

Web Site Accessibility The proposed Web site accessibility requirements would apply to all U.S. and foreign carriers that operate passenger service flights to and from destinations in the United States

. There are as many as 12 small domestic carriers that provide passenger service using at least one aircraft with between 30 and 60 seats (but none larger than 60 seats)

. A s many as 38 U.S. carriers providing passenger service exclusively with planes that have fewer than 30 seats would also be affected by these propos ed requirements

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Page 6 of 10 Pages Econometrica, Inc. August 30 , 2011 Table 2

- Number of U.S. Carriers by Size Class, 2009

Group Seat Criterion Total in 2009 T

- 100* Charter

only * * Scheduled Service Contract Carriers Other
Small 30

- 60 12 0 12 6 6 Very Small < 30 38 10 28 1 27 *Excludes carriers that were no longer operating independently by the end of 2010. **Six charters offered some scheduled service in 2009; all are very small Alaska or sightseeing tour carriers.

DOT defines small carriers based on the standard published in 14 CFR 399.73:

For the purposes of the Department ’ s implementation of chapter 6 of title 5, United State s Code (Regulatory Flexibility Act), a direct air carrier or foreign air carrier is a sm all business if it provides air transportation only with small aircraft as defined in §298.3 of this chapter (up to 60 seats/18,000 pound payload capacity).

S mall foreign carriers that provide scheduled passenger service only with aircraft with fewer than 6 1 seats would also need to comply with these proposed requirements

. It appears that only one foreign carrier operating scheduled passenger service to and from the United States with aircraft that have between 30 and 60 seats (but none larger than 60 seats) and four that provide scheduled or nonscheduled passenger service exclusively with planes that have fewer than 30
seats. 3

3.2. Airports

The Department proposal would require carriers and airports to enter into agreements specifying each party’s responsibilities for ensuring that all new orders for automated shared

- use airport kiosks are for models that meet the proposed accessibility stand ard

. These requirements would not apply to automated shared

- use kiosk s located in commercial airports that have fewer than 10,000 passenger enplanements annually.

The Federal Aviation Administration (FAA) categorizes airports based on the number of
passen gers departing annually (“enplanements”):

3 Cite to “The Enhancing Airline Passenger Protections (EAPP) 2 Final RFA.”Initial Regulatory Flexibility Analysis 10 30

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Page 7 of 10 Pages Econometrica, Inc. August 30 , 2011 Table 3

- Passenger Enplanements by Size of Airport, 2009

Category Minimum % or # of Passengers # of Airports Passengers (millions) % of Total Average # of Passengers/ Airport Large Hub >1% of total 29 491.7 6 9

. 3 % 17.0 million Medium Hub >0.25% of total 37 1 38 .0 19

. 4 % 3.7 million Small Hub >0.05% of total 69 56

. 7 8. 0 % 821,000
Non

- Hub >10,000/year 2 50 22. 9 3. 2 % 91,000 Other Commercial >2,500/year 180 0.9 0.1% 5,000 Total 565 710.1 100.0% 1.3 million
Source: BTS T

- 100 Segment Database, 2009.

Small Business Administration ( SBA ) size standards define privately

- owned airports as small businesses if their annual revenues do not exceed $7 million

. P ublicly

- owned airports are categorized as small entities if they are owned by jurisdictions with fewer than 50,000 inhabitants

. Of the 319 small hub and non

- hub airports with more than 10,000 passenger enplanements in 2009

, 54 met this classification, including 2 small hub airport s (Burlington International Airp ort in Vermont and Sanford

- Orlando International Airport in Florida ). 4

B ased on a preliminary canvas of carrier and airport Web site s, it does not appear that any small airports own, lease, or operate shared

- use automated kiosks at this time

. However, one or more of these airport authorities may begin installing automated kiosks either before or after the effective date of the proposed rule.

3.3. Travel Agencies and Tour Operators

The proposed Web site accessibility requirements would not apply directly to s mall travel
agen cies and tour operators (collectively, “ticket agents”) , but carriers would be required to ensure that these ticket agents make discounted Web

- based fares and other Web

- based amenities available upon request to passengers who are unable to use an agent’s Web site due to their disability

.

The numbers of small firms in the travel agen cy and tour operator sectors have been estimated from 200 7 Economic Census data, as follows:

Table 4

- Travel Agencies and Tour Operators, 2007

Total Firms Online Sales Capability Offline Sales Only Large Businesses (SBA Definition) Small Businesses (SBA Definition Travel Agencies 11,953 2,032 9,921 328 11,625 Tour Operators 2,814 478 2,336 94 2,720 Sources: Bureau of the Census, Economic Census
, 2007; PhoCusWright, The Role and Value of the Global Distribution Systems in Travel Distribution , 2009.

4 Although the majority of small U.S. airports are located in Alaska, few of the small Alaska airports are considered small entities because most are owned by the State Department of Transportation.Initial Regulatory Flexibility Analysis 10 30

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Page 8 of 10 Pages Econometrica, Inc. August 30 , 2011 T he applicable SBA size standards designate travel agencies with no more than $3.5 million in annual re venues and tour operators with no more than $7.0 million as small businesses.

According to the 2007 Economic Census

, there were 11,953 travel agencies operating for at least part of the year

. The largest 220 of these had revenues in excess of $5 million

. There were also 216 firms with revenues in the $2 .5

- 5 million range

. A pproximately one

- half (108) of these firms could be expected to have had revenues that exceeded $3 .5 million

. All of these firms can be assumed to have online booking capability

. A 200 9 white paper on global distribution systems (GDSs) estimate d that 2,0 32 travel agencies have online sales capability. 5 Subtracting the 328 large firms identified from the Census data, t h is means that carriers would have to ensure that an estimated 1, 704 s mall travel agencies with online sales capability make discounted Web

- based fares and other Web

- based amenities available upon request to passengers who are unable to use the agent’s Web site due to their disability. Carriers would also have to ensure that as many as 9,9 21 small travel agencies without online sales capability will make any discounted fares advertised on their Web sites and any other amenities that may be offered on these Web sites available upon request to passengers who are unable to use the travel agen cy ’s site because of their disability.

The 200 7 Economic Census estimates that there were 2,814 tour operators in business for at least part of the year

. The largest 55 of these had revenues in excess of $10 million

. There were also 78 firm s with estimated revenues in the $5

- 10 million range

. A pproximately one

- half (39) of these firms could be expected to have had revenues that exceeded $ 7 million

. All of these firms can be assumed to have online booking capability

. The 2009 GDS white paper estimated that there were 4 78 tour operators which have online sales capability

. Subtracting the 94 large firms identified from the Census data, this means tha t carriers would have to ensure that an estimated 3 84 small tour operators with online sales capa bility make discounted Web

- based fares and other Web

- based amenities available upon request to passengers who are unable to use the agent’s Web site due to their disability. Carriers would also have to ensure that as many as 2,3 36 small tour operators without online sales capability will make any discounted fares advertised on their Web sites and any other amenities that may be offered on these Web sites available upon request to passengers who are unable to use the tour operator’s site because of their disability.



### 4

. Nature and Impact of Proposed Requirements on Small Entities

Kiosk Accessibility The Department proposal would require carriers and airports to enter into agreements specifying each party’s responsibilities for ensu ring that all new orders for automated shared

- use airport kiosks are for models that meet the proposed accessibility standard

. Small carriers and small airport authorities would potentially need to develop and maintain records and reports in connection wit h executing and implementing these agreements and to verify that all new and replacement kiosk purchases comply with the applicable standards.

5 PhoCusWright, The Role and Value of the Global Distribut ion Systems in Travel Distribution , 2009.Initial Regulatory Flexibility Analysis 10 30

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Page 9 of 10 Pages Econometrica, Inc. August 30 , 2011 A s noted above

, it does not appear that small carriers or airports currently own, lease or operate
any automated kiosks

. However, it is possible that some small carriers or airports may install new automated kiosks either before or after the effective date of the proposed rule. Small entities that do so would incur costs associated with purchasing, installing, and m aintaining accessible automated kiosks. Input and comment on th is issue is expressly solicited in the accompanying SNPRM.

Web S ite Accessibility Small c arriers will incur direct, indirect, and opportunity costs for increasing Web site accessibility

. There are direct costs associated with programming and site redesign for greater accessibility, indirect costs related to program management and training, and potential opportunity costs in applying technical resources towards accessibility rather than oth er Web

based business strategies (e.g.

, social networking).

Small carriers already have to comply with a number of Web site requirements under current Department regulations

. It is reasonable to expect that these carriers have staff members or contractors with the professional skills to meet the proposed requirements, since small carriers already use the services of programmers to publish and maintain their current Web site s

. However, it is not clear that these employees or contractors have the specific ex pertise and professional skills that may be required to ensure that air travel Web site s would comply with the proposed accessibility requirements.

While the Department is not proposing to require carriers to ensure that their small ticket agents comply with the Web site accessibility requirements, carriers would be require d to ensure that these agents make discounted Web

- based fares and other Web

- based amenities available upon request to passengers who are unable to use the agent’s Web site due to their disability

. While th e accompanying regulatory evaluation includes the costs to ticket agents from the proposed requirement for carriers to ensure that their agents make their Web sites accessible, it does not address any costs incurred by agents in providing Web

- based amenities to passengers who
cannot access their Web site s due to a disability. While a substantial number of small ticket agents would be affected indirectly by this requirement on carriers, the economic impact on such agents of providi ng this assistance is not likely to be significant. The Department is seeking public comment on this matter in the SNPRM with the intent of addressing the economic impact more specifically in the final rule.



### 5. Other Applicable Federal Regulations

The preliminary RFA provides a brief summary of the current regulatory standards and guidelines that are applicable to automatic self

- service machines, such as automated kiosks, and Web site s

. There are two sets of standards for kiosks other than those use d for flight

- related services at airport s , each of which appl ies to different categories of affected entities:

Section 707 of the ADA Accessibility Guidelines

. Revised regulations for Titles II and III of the Americans with Disabilities (ADA) were publis hed on September 15, 2010

. Requirements for automatic teller machines (ATMs) and fare machines are provided in Section 707 of the 2004Initial Regulatory Flexibility Analysis 10 30

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Page 10 of 10 Pages Econometrica, Inc. August 30 , 2011 ADA Accessibility Guidelines (ADAAG), which are incorporated into both Title II and Title III of the 2010 Standards

. Whil e interactive transaction machines (ITMs), other than ATMs, are not covered by Section 707, the technical standard that the Department is proposing for automated airport kiosks is based in large part on the Section 707 requirements.

Section 508 of the Reh abilitation Act

. The Access Board’s accessibility standards for electronic and information technology are compiled in its regulation implementing Section 508 of the Rehabilitation Act of 1973

. The requirements in Part 1194.25 of Section 508 pertain to “sel f contained, closed products,” which include automated self

- service machines such as kiosks

. Part 1194.22 of Section 508 covers Web

- based Intranet and Internet information and applications

. In 2010, the Access Board issued an Advanced Notice of Proposed Rulemaking (ANPR M ) to solicit comment on revising or “refreshing” the current Section 508 standards

. However, the timeframe for final publication of these revisions is uncertain at present

. Elements of Section 508 standards have been incorporated into the automated airport kiosk requirements proposed in the accompanying SNPRM

. In addition, in the same ANPRM, the Access Board stated that it was giving consideration to harmonizing the section 508 Web site accessibility standard with the WCAG 2.0 accessibility standard and sought public comment on a specific technical approach to doing so

.

28 CFR Part 35 and 28 CFR Part 36

- ADA Title II and III Regulations

. The Department of Justice also issued an ANPRM in 2010 seeking comment on requiring Web site accessibi lity for entities covered by ADA titles II and III

. DOJ specifically requested comment on applying the WCAG 2.0 accessibility standard to the Web site s of covered entities and on an implementation schedule that would require full Web site accessibility aft er two years.

In developing the proposed requirements, the Department has worked to coordinate the accessibility standards for both automated kiosks and Web site s with the government agencies responsible for developing and enforcing the standards and guid elines that apply to entities outside the air transportation sector

. This effort has included a series of meetings with the Access Board and Department of Justice; development of proposed kiosk accessibility standards based on existing requirements in Sect ion 707 of the ADAAG and the applicable parts of Section 508; and consultation with both agencies concerning reliance on international consensus standards on Web site accessibility (WCAG 2.0) in the proposed requirements.