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 - Preamble

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.

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.

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.