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-2011-0177

Basis of Disability in Air Travel: :

Accessibility of Web Sites and Automated :

Kiosks at U.S. Airports :

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REQUEST TO CLARIFY THE PROPOSAL AND 

TO EXTEND THE COMMENT PERIOD

The Air Transport Association 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

members, appreciates the opportunity to provide comments on the Department’s September 26, 2011, 

supplemental notice of proposed rulemaking (“SNPRM”) 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 passengers. 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 respectfully requests that the Department clarify portions of the 

proposal and 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 will guide those responses. Our members have already begun to evaluate the impacts 

of the SNPRM 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 could meet the Department’s proposed new kiosk accessibility standard, 

which is a hybrid standard developed by combining U.S. Department of Justice’s 2010 American with 
2

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, it 

is not clear a product currently exists that meets the Department’s combined kiosk accessibility 

standard, since the specifics of this new hybrid 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 the feasibility of implementing the various 

Department 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 website accessibility standards

Thus, our first concern is the application of the rule to websites. We do not believe the 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 compliance 

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 nonU.S. sites is consistent with the Department’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 "accessible" 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 reference 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, there is confusion 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

382.43(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]

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...” [emphasis added]

Preamble page 59315 “The estimated cost per site for making primary 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 accessible?” [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, paragraphs 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 sites. In addition, the preamble states “..to cover public facing content on Web sites owned or 

controlled by U.S. carriers and foreign carriers...” [emphasis added]1and “The estimated cost per site 

for making primary Web sites...” [emphasis added]2and “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, in 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 Department. 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 SNPRM 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 disabilities."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 support a complete redesign of the primary site when the text-only feature provides WCAG 2.0 at level AA accessibility? 

Fourth, proposed paragraph 382.43(d) states that carriers would be responsible for the accessibility of a 

ticket agent’s website,

5

however, 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 same 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 purchase function remains on the carrier website.

Fifth, we ask the Department to clarify its unfair and deceptive trade practices authority under 49 

U.S.C. §41712. In this SNPRM, the Department states it can use its unfair and deceptive statutory

authority to 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. If 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. Reg. 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 to 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 maintaining 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 docket.

Second, the 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 kiosk 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 the 

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 costs. As with 

our request for clarification regarding non-U.S websites operated by U.S. carriers, this 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 cover check-in 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 it 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.

99

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 them. The documents include:

 The 2008 Telecommunications and Electronic and Information Technology Advisory Committee 

Board report12

 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 should 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 requested. 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 period will not 

adversely affect other interested parties, and, in fact, it will provide all parties the time needed to 

answer the more than 150 questions that are asked in the preamble. It will take carriers at least 120 

days to adequately research and provide 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 holiday 

(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, North 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 Association

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

October 7, 2011