BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

------------------------------------------------------ In the matter of: :
: Supplemental Notice of Proposed : Rulemaking: Nondiscrimination on the : Docket No. DOT

- OST

- 20 11

- 01 77 Basis of Disability in Air Travel: : Accessibility of Web Sites and Automated : Kiosks at U.S. Airports :

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

REQUEST TO CLARIFY THE PROPOSAL AND TO EXTEND THE COMMENT PERIOD
The Air Transport Assoc iation of America, Inc.
, the International Air Transport Association, the Regional Airline Association, and the Air Carrier Association of America on behalf of their air carrier
member s , appreciates the opportunity to provide comments on the Department’s S eptember 26 , 20 11
, supplemental notice of proposed rulemaking (“ S NPRM”) regarding accessible web sites and
automated kiosks at U.S. airports

. We look forward to continuing to work cooperatively with the Department to improve air travel for disabled passeng ers. The comment period for the proposed rulemaking is set to close on November 25, 2011

. Due to the complexity of the proposed rule and the ambiguity of certain key aspects, we r espectfully requests that the Department clarify portions of the proposal an d extend the comment period by 120 days

. This will allow interested parties to fully evaluate the proposed rule , answer the more than 150 questions in the preamble and develop constructive comments for the Department’s consideration. With this extension, the comment period
would end on March 25, 2012

.
The additional time is necessary for our members to fully consider and respond to the numerous questions the Department has sought comment upon, as well as to develop and provide important
information that w ill guide those responses

. Our members have already begun to evaluate the impacts
of the S NPRM on some aspects of the carriers’ operations and have identified other areas that will require the collection of information from a variety of departments within each carrier. For example,
each carrier will need to consult with multiple specialists to determine whether hardware and software products currently exist that c ould meet the Department’s proposed new kiosk accessibility standard, which is a hybrid standar d developed by combining U.S. Department of Justice’s 2010 American with2

Disabilities Act (“ADA”) Standards for Accessible Design applicable to automated teller machines (Section 707) and select provisions from Section 508 of the Rehabilitation Act of 1973 (36 C.F.R. 1194.25). While products likely exist that meet the ADA and Section 508 standards independently, i t is not clear a product currently exists that meets the Department’s combined kiosk accessibility standard, since the specifics of this new hybr id standard were just made public and were not previously available to regulated parties and commercial vendors. Similarly, our members need to collect significant data and information necessary to evaluate t he feasibility of implementing the various Depa rtment proposals and the accuracy of the Department’s cost assumptions.

In addition
, to facilitate a meaningful review of the SNPRM , we ask the Department to confirm certain aspects of the SNPRM in its response to this extension request. In particular , and as discussed further below, it would be beneficial to understand the precise scope of applicability the Department
intended for w ebsite accessibility standards

Thus, o ur first concern is the application of the rule to websites

. We do not believe t he Department intended to cover overseas websites maintained by U.S. carriers that are not directed at U.S. customers. For example, U.S. carriers maintain country

- specific sites for the purposes of selling in those countries. Applying the proposed rule to all websites maintained by U.S. carriers world

- wide would add tremendously to the burden of compliance for U.S. carriers and would not benefit U.S. customers. It would also significantly affect our estimates regarding implementation, maintenance and c ompliance

matters

. The proposed rule exempts foreign air carriers from the requirement for their non

- U.S. sites, and provides a number of indicia for determining the intended audience of a website. Excluding non

U.S. sites is consistent with the Departme nt’s recently issued FAQ regarding to section 399.85:

It applies only to U.S. and foreign carriers with websites marketed towards the general public in the U.S. In section 399.85(a) and 399.85(b), the final rule inadvertently refers to websites "accessibl e" in the United States. It was the Department’s intent, and it remains our intention as a matter of enforcement policy, to apply these provisions to websites marketed towards U.S. consumers (language that is used elsewhere in the rule). The incorrect refe rence to websites that are "accessible for ticket purchases by the general public in the U.S." will be corrected. [emphasis added]

We ask DOT to confirm that proposed § 382.43 does not apply to non

- U.S. websites of U.S. carriers.3

Second, t he re is c onfusion regarding several provisions in the rule text and preamble that use different

terms regarding websites (“public

- facing,” “primary” and “main”) to describe the application and

scope of the rule as described below

.

Section Conflicting Text 382.4 3(c) “...you must ensure the public

- facing web pages on your Web site are accessible to individuals with disabilities in accordance with this section.” [emphasis added]. 382.43(c)(1) “A new or completely redesigned primary Web site...” [emphasis added] 38 2.43(c)(2) “Web pages on an existing Web site associated with obtaining the following services and information shall either be directly conformant on your primary Web site...” [emphasis added] Preamble page 59315 “The estimated cost per site for making pri mary Web sites ...” [emphasis added] Preamble page 59315 “The estimated cost per site for making primary Web sites ...” [emphasis added] Preamble page 59316 “Is a two

- year time frame sufficient to render all public

- facing content on a carrier’s main Web site a ccessible?” [emphasis added]

First, proposed paragraph 382.43(c) states “...you must ensure the public

- facing web pages on your Web site are accessible to individuals with disabilities in accordance with this section.” [emphasis added]

. However, paragrap hs 382.43(c)(1) (“A new or completely redesigned primary Web site...”)
and 382.43 (c)(2) (“Web pages on an existing Web site associated with obtaining the following services and information shall either be directly conformant on your primary Web site...” ) refer to “ primary ”
Web site s. In addition, the preamble states “..to cover public facing content on Web sites owned or controlled by U.S. carrier s and foreign carriers...” [emphasis added] 1 and “ The estimated cost per site for making primary Web sites ...” [emphasi s added] 2 and “Is a two

- year time frame sufficient to render all public

- facing content on a carrier’s main Web site accessible?” [emphasis added] 3 Second, the terms “public

- facing,” “primary,” and “main” web sites are not defined in the SNPRM. We ask the Department to clarify this terminology

.
Third, i n order to better serve their disabled customers, some carriers have already developed accessible versions of their website that meet WCAG 2.0 at level AA with the full booking

1 76 Fed. Reg. 59315. 2 Id. 3 76 Fed. Reg. 59316.4

functionality sought by the D epartment. One method carriers have used is to provide a “text

- only” feature on their primary website, which is compatible with reader technology. The text

- only feature is activated with a single click on the primary homepage. The S NPRM asks “whether it should explicitly prohibit the use of conforming alternate versions except when necessary to provide the information, services, and benefits on a specific Web page or Web site as effectively to individuals with disabilities
as to those without disabilit ies." 4 “Conforming alternate version” is not a defined term. What is a

“ conforming alternate version?” If a text

- only feature activated from the primary site is considered a “conforming alternate version,” does the Department have cost

- benefit data to s upport a complete re

design of the primary site when the text

- only feature provides WCAG 2.0 at level AA accessibility?

Fourth, p roposed paragraph 382.43(d) states that carriers would be responsible for the accessibility of a ticket agent’s website
, 5 how ever, the regulatory evaluation states “ Carriers would also be required to ensure that the Web sites of large travel agents and tour operators (hereinafter referred to collectively as “ticket agents”) selling air transportation on their behalf meet the sam e accessibility standard ...” 6 The Department should confirm whether this proposal applies to tour operators. The Department should also confirm the proposal does not apply to carrier alliance websites marketed to U.S.

consumers because the ticketing purch ase function remains on the carrier website.

Fifth, w e ask the Department to clarify its unfair and deceptive trade practices authority under 49
U.S.C. § 41712 . In this SNPRM, t he Department states it can use its unfair and deceptive statut ory authority t o ensure that websites marketing covered air transportation to the general public in the U.S.
are accessible

. 7 However, the Department does not propose to directly prohibit ticket agent
inaccessible websites but instead proposes shift that responsibility to carriers by imposing the obligation to ensure that ticket agent websites are accessible . I f the Department has authority to regulate ticket agents directly, why did the Department choose to regulate ticket agents indirectly through carriers ?

4 76 Fed. Reg. 59313. 5 76 Fed. Reg. 59325. 6 Preliminary Regulatory Analysis, Executive Summary, page 1. 7 “The Department considers marketing covered air transportation to the general public in the U.S. on Web sites that are inaccessible to individuals with disabilities to be discriminatory and a violation of the Air Carrier Access Act (49 U.S.C. 41705) and an unfair trade practice in violation of 49 U.S.C. 41712 .” [emphasis added]. 76 Fed. R eg. 59309.5

There are also several conflicting statements in the SNPRM that create additional confusion. First, the Department states that “ U.S. and foreign carriers would incur an estimated $2.0 million annually and ticket agents an estimated $2.6 million annually in costs t o ensure that their primary Web sites remain fully compliant. ” 8 On the same page the Department states “potentially important categories of cost identified for which no quantitative data are available include the cost of mai ntaining Web site accessibility

. ” 9 These two statements appear to conflict; the Department should clarify whether it was able to quantify ongoing recurring costs to maintain an accessible web site , identify the source of the estimated costs, and place supporting documentation in the doc ket

.

Second, t he Department also states in the preamble that “... the Department is considering requiring either retrofitting or replacement of a certain percentage or number of airport kiosks (e.g., retrofit 25% of existing kiosks or retrofit at least one k iosk at each airport location by a certain date). ” 10 Yet proposed § 382.57(a)(1) states “ You are not required to retrofit existing kiosks. ” 11 These statements appear to conflict. Is the Department proposing a kiosk retrofit requirement and if so what is th e compliance period ? This clarification is significant because a retrofit would require carriers and airports (for common use kiosks) to estimate the feasibility of compliance , impact and cost s

. As with our request for clarification regarding non

- U.S web sites operated by U.S. carriers, t his aspect of the proposal could significantly increase the scope and impact of the SNPRM and the Department’s clarification is needed to facilitate meaningful review and comment

.
We believe the Department intended to cov er check

- i n kiosks that are used throughout the U.S. However, we ask the Department to confirm that automated ticket scanners used beyond security for rebooking flights during irregular operations are not included in the definition of a kiosk

. Including this type of kiosk would increase the scope and impact of the proposal as i t is unclear that any such scanners exist today that meet the proposed requirements.

We also note there are several documents on which the Department relies in the SNPRM and the Preliminary Regulatory Analysis (“ PRA ”) , which are not publicly available. We request the

8 76 Fed. Reg. 59315. 9 9 Id. 10 76 Fed. Reg. 59318. 11 76 Fed. Reg. 59325.6

Department place these documents in the docket so the public has the opportunity to review and
comment on the m. Th e documents include:

 The 2008 Telecommunications and Electronic and Information Technology Advisory Committee Board report 12

 The source of the estimate that “building accessibility into new Web pages today is estimated to add only about 3

– 6 percent to the cost.” 13

 DOT states that “Information obtained from kiosks vendors indicates that the bulk of the incremental costs associated with making kiosk hardware, middleware, and software applications accessible are fixed, therefore they do not vary appreciably with the number of units sold.” 14 The Department shou ld place any documentation that supports this information in the docket.

 The paper “Countering the economic threat to sustainable accessibility” by Lewis, D., Suen, S.L., Federing, D. (2010), 15 should be placed in the docket.

 The PRA cites a TRACE analysis of the modifications that would be required to produce an
accessible kiosk. 16 This analysis should be placed in the docket.

Thank you for considering the request for an extension of time, and for the Department’s anticipated
clarification on the matters r equested. With additional time, and the Department’s clarifications, all interested parties will be able to gather the appropriate information, perform the necessary analyses and provide the most meaningful responses to the SNPRM. Extending the comment p eriod will not adversely affect other int erested parties, and, in fact, it will provide all parties the time needed to answer the more than 15 0 questions that are asked in the preamble . It will take carriers at least 120 days to adequately research and pr ovide answers to these questions. We also note that the current comment close date for this SNPRM is the day after a holiday ( Thanksgiving ) and if the Department were to extend the comment period 30 days, comments would be due the day after another holida y ( Christmas ) . Getting information from entities during the holiday period is extremely challenging and we ask the Department to consider these factors in its decision to extend the comment period. For the

12 76 Fed. Reg. 59313

- 59314. 13 76 Fed. Reg. 59316. 14 76 Fed. Reg. 59321. 15 76 Fed. Reg. 59323. 16 PRA page 37, Fn 41.7

reasons given above, we believe good cause exists to grant our request and that an extension would be in the public interest. Please let us know if you have any questions.

Respectfully submitted,

Douglas Mullen Douglas E. Lavin Senior Attorney Regulatory Affairs Regional Vice President, N orth America Air Transport Association of America, Inc. International Air Transport Association 1301 Pennsylvania Avenue, NW 601 Pennsylvania Avenue, NW Suite 300 North Washington, DC 20004 Washington, D.C. 202

- 626

- 4000 202

- 628

- 9292 dmullen@airlines.org lavind@iata.org

Edward P. Faberman Roger Cohen Executive Director President Air Carrier Association of America Regional Airline Associatio n 1776 K Street, NW 2025 M Street, NW Washington, DC 20006 Washington, DC 20036 (202) 719

- 7420 (202) 367

- 1250 epfaberman@acaa1.com cohen@raa.org

Oct ober 7 , 2011