[Federal Register Volume 88, Number 149 (Friday, August 4, 2023)]
[Proposed Rules]
[Pages 51948-52020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15823]
[[Page 51947]]
Vol. 88
Friday,
No. 149
August 4, 2023
Part III
Department of Justice
-----------------------------------------------------------------------
28 CFR Part 35
Nondiscrimination on the Basis of Disability; Accessibility of Web
Information and Services of State and Local Government Entities;
Proposed Rule
Federal Register / Vol. 88 , No. 149 / Friday, August 4, 2023 /
Proposed Rules
[[Page 51948]]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 35
[CRT Docket No. 144; AG Order No. 5729-2023]
RIN 1190-AA79
Nondiscrimination on the Basis of Disability; Accessibility of
Web Information and Services of State and Local Government Entities
AGENCY: Civil Rights Division, Department of Justice.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Justice (``Department'') is proposing to
revise the regulation implementing title II of the Americans with
Disabilities Act (``ADA'') in order to establish specific requirements,
including the adoption of specific technical standards, for making
accessible the services, programs, and activities offered by State and
local Government entities to the public through the web and mobile
apps.
DATES: Written comments must be postmarked, and electronic comments
must be submitted, on or before October 3, 2023. Commenters should be
aware that the electronic Federal Docket Management System (``FDMS'')
will accept comments submitted prior to midnight Eastern Time on the
last day of the comment period. Written comments postmarked on or
before the last day are considered timely even though they may be
received after the end of the comment period. Late comments are highly
disfavored. The Department is not required to consider late comments.
ADDRESSES: You may submit comments, identified by RIN 1190-AA79 (or
Docket ID No. 144), by any one of the following methods:
Federal eRulemaking Website: www.regulations.gov. Follow
the website's instructions for submitting comments.
Regular U.S. Mail: Disability Rights Section, Civil Rights
Division, U.S. Department of Justice, P.O. Box 440528, Somerville, MA
02144.
Overnight, Courier, or Hand Delivery: Disability Rights
Section, Civil Rights Division, U.S. Department of Justice, 150 M St.
NE, 9th Floor, Washington, DC 20002.
FOR FURTHER INFORMATION CONTACT: Rebecca B. Bond, Chief, Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, at
(202) 307-0663 (voice or TTY). This is not a toll-free number.
Information may also be obtained from the Department's toll-free ADA
Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY). You
may obtain copies of this NPRM in an alternative format by calling the
ADA Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY).
A link to this NPRM is also available on www.ada.gov.
Electronic Submission of Comments and Posting of Public Comments
Interested persons are invited to participate in this rulemaking by
submitting written comments on all aspects of this rule via one of the
methods and by the deadline stated above. When submitting comments,
please include ``RIN 1190-AA79'' in the subject field. The Department
also invites comments that relate to the economic, environmental, or
federalism effects that might result from this rule. Comments that will
provide the most assistance to the Department in developing this rule
will reference a specific portion of the rule or respond to a specific
question, explain the reason for any recommended change, and include
data, information, or authority that support such recommended change.
Please note that all comments received are considered part of the
public record and made available for public inspection at https://www.regulations.gov. Such information includes personally identifiable
information (``PII'') (such as your name and address). Interested
persons are not required to submit their PII in order to comment on
this rule. However, any PII that is submitted is subject to being
posted to the publicly accessible https://www.regulations.gov/ site
without redaction.
Confidential business information clearly identified in the first
paragraph of the comment as such will not be placed in the public
docket file.
The Department may withhold from public viewing information
provided in comments that they determine may impact the privacy of an
individual or is offensive. For additional information, please read the
Privacy Act notice that is available via the link in the footer of
https://www.regulations.gov. To inspect the agency's public docket file
in person, you must make an appointment with the agency. Please see the
FOR FURTHER INFORMATION CONTACT paragraph above for agency contact
information.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of Proposed Rule and Need for the Rule
Title II of the ADA provides that no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or denied the benefits of the services, programs, or
activities of a State or local government entity.\1\ The Department
uses the phrases ``State and local government entities'' and ``public
entities'' interchangeably throughout this Notice of Proposed
Rulemaking (``NPRM'') to refer to ``public entities'' as defined in 42
U.S.C. 12131(1) that are covered under part A of title II of the ADA.
The Department has consistently made clear that the title II
nondiscrimination provision applies to all services, programs, and
activities of public entities, including those provided via the web. It
also includes those provided via mobile applications (``apps''), which,
as discussed in the proposed definition, are software applications that
are designed to be downloaded and run on mobile devices such as
smartphones and tablets. In this NPRM, the Department proposes
technical standards for web content and mobile app accessibility to
give public entities greater clarity in exactly how to meet their ADA
obligations and to help ensure equal access to public entities'
services, programs, and activities (also referred to as ``government
services'') for people with disabilities.
---------------------------------------------------------------------------
\1\ 42 U.S.C. 12132.
---------------------------------------------------------------------------
Public entities are increasingly providing the public access to
government services through their web content and mobile apps. For
example, government websites and mobile apps often allow the public to
obtain information or correspond with local officials without having to
wait in line or be placed on hold. Members of the public can also pay
fines, apply for State benefits, renew State-issued identification,
register to vote, file taxes, request copies of vital records, and
complete numerous other tasks via government websites. Individuals can
often perform many of these same functions on mobile apps.
Additionally, as discussed further, web- and mobile app-based access to
these programs and activities has become especially critical since the
start of the COVID-19 pandemic. Often, however, State and local
government entities' web- and mobile app-based services are not
designed accessibly and as a result are not equally available to
individuals with disabilities.
[[Page 51949]]
It is critical to ensure that people with disabilities can access
important web content and mobile apps quickly, easily, independently,
and equally. Just as steps can exclude people who use wheelchairs,
inaccessible web content can exclude people with a range of
disabilities from accessing government services. For example, access to
voting information, up-to-date health and safety resources, and mass
transit schedules and fare information may depend on having access to
websites and mobile apps. With accessible web content and mobile apps,
people with disabilities can access government services independently
and in some cases with more privacy. By allowing people with
disabilities to engage more fully with their governments, accessible
web content and mobile apps also promote the equal enjoyment of
fundamental constitutional rights, such as the rights to freedom of
speech, assembly, association, petitioning, and due process of law.
Accordingly, the Department is proposing technical requirements to
provide concrete standards to public entities on how to fulfill their
obligations under title II to provide equal access to all of their
services, programs, and activities that are provided via the web and
mobile apps. The Department believes the requirements described in this
rule are necessary to ensure ``equality of opportunity, full
participation, independent living, and economic self-sufficiency'' for
individuals with disabilities, as set forth in the ADA.\2\
---------------------------------------------------------------------------
\2\ 42 U.S.C. 12101(a)(7).
---------------------------------------------------------------------------
B. Legal Authority
On July 26, 1990, President George H.W. Bush signed into law the
ADA, a comprehensive civil rights law prohibiting discrimination on the
basis of disability.\3\ Title II of the ADA, which this rule addresses,
applies to State and local government entities. Title II extends the
prohibition on discrimination established by section 504 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, to all
activities of State and local government entities regardless of whether
the entities receive Federal financial assistance.\4\ Part A of title
II protects qualified individuals with disabilities from discrimination
on the basis of disability in services, programs, and activities
provided by State and local government entities. Section 204(a) of the
ADA directs the Attorney General to issue regulations implementing part
A of title II but exempts matters within the scope of the authority of
the Secretary of Transportation under section 223, 229, or 244.\5\
---------------------------------------------------------------------------
\3\ 42 U.S.C. 12101-12213.
\4\ 42 U.S.C. 12131-65.
---------------------------------------------------------------------------
The Department of Justice is the only Federal agency with authority
to issue regulations under title II, part A, of the ADA regarding the
accessibility of State and local government entities' web content and
mobile apps. In addition, under Executive Order 12250, the Department
of Justice is responsible for ensuring consistency and effectiveness in
the implementation of section 504 across the Federal Government (aside
from provisions relating to equal employment). Given Congress's intent
for parity between section 504 and title II of the ADA, the Department
must also ensure that any interpretations of section 504 are consistent
with title II (and vice versa).\6\ The Department, therefore, also has
a lead role in coordinating interpretations of section 504 (again,
aside from provisions relating to equal employment), including its
application to websites and mobile apps, across the Federal Government.
---------------------------------------------------------------------------
\5\ See 42 U.S.C. 12134. Section 229(a) and section 244 of the
ADA direct the Secretary of Transportation to issue regulations
implementing part B of title II, except for section 223. See 42
U.S.C. 12149, 12164.
\6\ Memorandum for Federal Agency Civil Rights Directors and
General Counsels from the Office of the Assistant Attorney General,
Civil Rights Division, Department of Justice, https://www.justice.gov/crt/file/1466601/download [https://perma.cc/YN3G-J7F9].
---------------------------------------------------------------------------
C. Overview of Key Provisions of This Proposed Regulation
In this NPRM, the Department proposes to add a new subpart H to the
title II ADA regulation, 28 CFR part 35, that will set forth technical
requirements for ensuring that web content that State and local
government entities make available to members of the public or use to
offer services, programs, and activities to members of the public is
readily accessible to and usable by individuals with disabilities. Web
content is information or sensory experience that is communicated to
the user by a web browser or other software. This includes text,
images, sounds, videos, controls, animations, navigation menus, and
documents. Examples of sensory experiences include content like visual
works of art or musical performances.\7\ Proposed subpart H also sets
forth technical requirements for ensuring the accessibility of mobile
apps that a public entity makes available to members of the public or
uses to offer services, programs, or activities to members of the
public.
---------------------------------------------------------------------------
\7\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/#dfn-specific-sensory-experience [https://perma.cc/5554-T2R2].
---------------------------------------------------------------------------
The Department proposes to adopt an internationally recognized
accessibility standard for web access, the Web Content Accessibility
Guidelines (``WCAG'') 2.1 \8\ published in June 2018, https://www.w3.org/TR/WCAG21/ [https://perma.cc/H2GG-WJVK], as the technical
standard for web content and mobile app accessibility under title II of
the ADA. As will be explained in more detail, the Department is
proposing to require that public entities comply with the WCAG 2.1
Level AA success criteria and conformance requirements. The applicable
technical standard will be referred to hereinafter as ``WCAG 2.1.'' The
applicable conformance level will be referred to hereinafter as ``Level
AA.'' To the extent there are differences between WCAG 2.1 Level AA and
the standards articulated in this rule, the standards articulated in
this rule prevail. As noted below, WCAG 2.1 Level AA is not restated in
full in this rule but is instead incorporated by reference.
---------------------------------------------------------------------------
\8\ Copyright (copyright) 2017 2018 W3C[supreg] (MIT, ERCIM,
Keio, Beihang). This document includes material copied from or
derived from https://www.w3.org/TR/WCAG21/ [https://perma.cc/H2GG-WJVK].
---------------------------------------------------------------------------
In recognition of the challenges that small public entities may
face with respect to resources for implementing the proposed new
requirements, the Department is proposing to stagger the compliance
dates for public entities according to their total population. Total
population refers to the size of the public entity's population
according to the U.S. Census Bureau or, if the public entity does not
have a specific population but belongs to another jurisdiction that
does, the population of the jurisdiction to which the entity belongs.
This NPRM proposes that a public entity with a total population of
50,000 or more must ensure that web content and mobile apps it makes
available to members of the public or uses to offer services, programs,
or activities to members of the public, comply with WCAG 2.1 Level AA
success criteria and conformance requirements two years after the
publication of the final rule. A public entity with a total population
of less than 50,000 would have three years to comply with these
requirements. In addition, all special district governments would have
three years to comply with these requirements.
[[Page 51950]]
Table 1--Compliance Dates for WCAG 2.1 Level AA
------------------------------------------------------------------------
Public entity size Compliance date
------------------------------------------------------------------------
Fewer than 50,000 persons/Special Three years after publication
district governments. of the final rule.
50,000 or more persons................. Two years after publication of
the final rule.
------------------------------------------------------------------------
In addition, the Department is proposing to create an exception
from the web accessibility requirements for certain categories of web
content, which are described in detail in the section-by-section
analysis.
If web content is excepted, that means that the public entity does
not need to make the content conform to WCAG 2.1 Level AA, unless there
is an applicable limitation to the exception. The proposed limitations
describe situations in which the otherwise excepted content must
conform to WCAG 2.1 Level AA.
As will be explained more fully, the Department is proposing seven
exceptions with some limitations: (1) archived web content; (2)
preexisting conventional electronic documents; (3) web content posted
by third parties on a public entity's website; (4) third-party web
content linked from a public entity's website; (5) course content on a
public entity's password-protected or otherwise secured website for
admitted students enrolled in a specific course offered by a public
postsecondary institution; (6) class or course content on a public
entity's password-protected or otherwise secured website for students
enrolled, or parents of students enrolled, in a specific class or
course at a public elementary or secondary school; and (7) conventional
electronic documents that are about a specific individual, their
property, or their account and that are password-protected or otherwise
secured. The proposed exception for preexisting conventional electronic
documents would also apply to conventional electronic documents
available through mobile apps. As discussed further, if one of these
exceptions applies without a limitation, then the public entity's
excepted web content or mobile app would not need to comply with the
proposed rule's accessibility requirements. However, each exception is
limited in some way. If a limitation applies to an exception, then the
public entity would need to ensure that its web content or mobile app
complies with the proposed rule's accessibility requirements. The
Department is proposing these exceptions--with certain limitations
explained in detail later in this NPRM--because it believes that
requiring public entities to make the particular content described in
these categories accessible under all circumstances could be too
burdensome at this time. In addition, requiring accessibility in all
circumstances may divert important resources from providing access to
key web content and mobile apps that public entities make available or
use to offer services, programs, and activities. However, upon request
from a specific individual, a public entity may have to provide web
content or content in mobile apps to that individual in an accessible
format to comply with the entity's existing obligations under other
regulatory provisions implementing title II of the ADA, even if an
exception applies without a limitation. For example, archived town
meeting minutes from 2011 might be excepted from the requirement to
comply with WCAG 2.1 Level AA. But, if a person with low vision, for
example, requests an accessible version, then the town would still need
to consider the person's request under its existing effective
communication obligations in 28 CFR 35.160. The way that the town does
this could vary based on the facts. For example, in some circumstances,
providing a large print version of the minutes might satisfy the town's
obligations, and in other circumstances it might need to provide an
electronic version that partially complies with WCAG.
The NPRM also proposes to make clear the limited circumstances in
which ``conforming alternate versions'' of web pages, as defined in
WCAG 2.1, can be used as a means of achieving accessibility. A
conforming alternate version is a separate web page that is accessible,
up to date, contains the same information and functionality as the
inaccessible web page, and can be reached via a conforming page or an
accessibility-supported mechanism. The Department understands that, in
practice, it can be difficult to maintain conforming alternate versions
because it is often challenging to keep two different versions of web
content up to date. For this reason and others discussed later,
conforming alternate versions are permissible only when it is not
possible to make websites and web content directly accessible due to
technical or legal limitations. Also, the NPRM would allow a public
entity flexibility to show that its use of other designs, methods, or
techniques as alternatives to WCAG 2.1 Level AA provides substantially
equivalent or greater accessibility and usability. Additionally, the
NPRM proposes that compliance with WCAG 2.1 Level AA is not required
under the ADA to the extent that such compliance imposes undue
financial and administrative burdens or results in a fundamental
alteration of the services, programs, or activities of the public
entity. More information about these proposals is provided in the
section-by-section analysis.
D. Summary of Costs and Benefits
To estimate the potential costs and benefits associated with this
proposed rule, the Department conducted a Preliminary Regulatory Impact
Analysis (``PRIA''). The purpose of the PRIA is to inform the public
about how the proposed rule creates costs and benefits to society,
taking into account both quantitative and qualitative costs and
benefits. A more detailed summary of the PRIA is included in section VI
of this preamble. The results of the Department's economic analysis
indicate that monetized benefits of this rulemaking far exceed the
costs. Further, the proposed rule will benefit individuals with
disabilities uniquely and in their day-to-day lives in many ways that
could not be quantified due to unavailable data. Table 2 below shows a
high-level overview of the Department's monetized findings. Non-
monetized costs and benefits are discussed in the text.
The Department calculated a variety of estimated costs, including:
(1) one-time costs for familiarization with the requirements of the
rule; (2) initial testing and remediation costs for government
websites; (3) operating and maintenance (``O&M'') costs for government
websites; (4) initial testing and remediation costs for mobile apps;
(5) O&M costs for mobile apps; (6) school course remediation costs; and
(7) initial testing and remediation costs for third-party websites that
provide services on behalf of State and local governments. School
course content, despite primarily being hosted on websites, is
estimated as a separate remediation cost due to its unique structure
and content, and because it is primarily on password-protected pages
[[Page 51951]]
and therefore unobservable to the Department. The remediation costs
include both time and software components. Annualized costs are
calculated over a 10-year period that includes both the three-year
implementation period and the seven years post-implementation.
Annualized costs over this 10-year period are estimated at $2.8 billion
assuming a 3 percent discount rate or $2.9 billion assuming a 7 percent
discount rate. This includes $15.8 billion in implementation costs
accruing during the first three years (the implementation period),
undiscounted, and $1.8 billion in annual O&M costs during the next
seven years. All values are presented in 2021 dollars as 2022 data were
not yet available.
To consider the relative magnitude of the estimated costs of this
proposed regulation, the Department compares the costs to revenues for
public entities. Because the costs for each government entity type are
estimated to be well below 1 percent of revenues, the Department does
not believe the rule will be unduly burdensome or costly for public
entities.\9\
---------------------------------------------------------------------------
\9\ As a point of reference, the United States Small Business
Administration advises agencies that a potential indicator that the
impact of a proposed regulation may be ``significant'' is whether
the costs exceed 1 percent of the gross revenues of the entities in
a particular sector, although the threshold may vary based on the
particular types of entities at issue. The Department estimates that
the costs of this rulemaking for each government entity type are far
less than 1 percent of revenues. See Small Bus. Admin., A Guide for
Government Agencies: How to Comply with the Regulatory Flexibility
Act 19 (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH]; see also EPA, EPA's Action Development Process: Final
Guidance for EPA Rulewriters: Regulatory Flexibility Act 24 (Nov.
2006), https://www.epa.gov/sites/default/files/2015-06/documents/guidance-regflexact.pdf [https://perma.cc/9XFZ-3EVA] (providing an
illustrative example of a hypothetical analysis under the RFA in
which, for certain small entities, economic impact of ``[l]ess than
1% for all affected small entities'' may be ``presumed'' to have
``no significant economic impact on a substantial number of small
entities'').
---------------------------------------------------------------------------
Benefits of this rulemaking will accrue particularly to individuals
with certain types of disabilities. For purposes of the PRIA, the
Department has determined that WCAG 2.1 Level AA primarily benefits
individuals with vision, hearing, cognitive, and manual dexterity
disabilities because the WCAG 2.1 standards are intended to address
barriers that often impede access for people with these disability
types.\10\ The Department quantified benefits to individuals with these
four types of disabilities. Individuals with other types of
disabilities may also benefit but, due to data limitations and
uncertainties, benefits to these individuals are not directly
quantified. Additionally, because accessibly designed web content and
mobile apps are easier for everyone to use, benefits will also accrue
to people without relevant disabilities \11\ who access State and local
government entities' web content and mobile apps.
---------------------------------------------------------------------------
\10\ See W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK]; W3C[supreg], Web Content Accessibility
Guidelines 2.1 (June 5, 2018), https://www.w3.org/TR/WCAG21/
[https://perma.cc/29PG-YX3N].
\11\ Throughout this proposed rule, the Department uses the
phrase ``individuals without relevant disabilities'' to refer to
individuals without vision, hearing, cognitive, or manual dexterity
disabilities. Individuals without these disabilities may have other
types of disabilities, or they may be individuals without
disabilities, but to simplify the discussion in this proposed rule,
``individuals without relevant disabilities'' will be used to mean
individuals without one of these four types of disabilities.
---------------------------------------------------------------------------
The Department monetized benefits for people with vision, hearing,
cognitive, and manual dexterity disabilities as well as people without
these disabilities. These benefits included time savings for current
users of State and local government entities' web content; time savings
for those who switch from other modes of accessing State and local
government entities' services, programs, or activities (e.g., phone or
in person) to web access or begin to participate in these services,
programs, or activities for the first time; time savings for current
mobile app users; time savings for students and their parents; and
earnings from additional educational attainment. Annual benefits,
beginning once the rule is fully implemented, total $11.4 billion.
Benefits annualized over a 10-year period that includes both three
years of implementation and seven years post-implementation total $9.3
billion per year, assuming a 3 percent discount rate, and $8.9 billion
per year, assuming a 7 percent discount rate.
There are many additional benefits that have not been monetized due
to a lack of data availability. Benefits that cannot be monetized are
discussed qualitatively in the PRIA. These qualitative benefits are
central to this proposed rule's potential impact. They include concepts
at the core of any civil rights law, such as equality and dignity.
Other benefits to individuals include increased independence, increased
flexibility, increased privacy, reduced frustration, decreased reliance
on companions, and increased program participation. This proposed rule
will also benefit governments through increased certainty about what
constitutes accessible web content, potential reduction in litigation,
and a larger labor market pool.
Comparing annualized costs and benefits, the monetized benefits to
society of this rulemaking far outweigh the costs. Net annualized
benefits over the first 10 years after publication of this proposed
rule total $6.5 billion per year using a 3 percent discount rate and
$6.0 billion per year using a 7 percent discount rate (Table 2).
Additionally, beyond this 10-year period, benefits are likely to
continue to accrue at a greater rate than costs because many of the
costs are upfront costs and benefits tend to have a delay before
beginning to accrue. Moreover, the Department expects the net
annualized benefit estimate is an underestimate, as it does not include
the significant qualitative benefits that the Department was unable to
monetize. For a complete comparison of costs and benefits, please see
Section 1.2, Summary of Benefits and Costs, in the corresponding PRIA.
Table 2--10-Year Average Annualized Comparison of Costs and Benefits
------------------------------------------------------------------------
3% Discount 7% Discount
Benefit type rate rate
------------------------------------------------------------------------
Average annualized costs (millions)..... $2,846.6 $2,947.9
Average annualized benefits (millions).. 9,316.3 8,937.2
Net benefits (millions)................. 6,469.7 5,989.3
Cost-to-benefit ratio................... 0.3 0.3
------------------------------------------------------------------------
[[Page 51952]]
II. Relationship to Other Laws
Title II of the ADA and the Department of Justice's implementing
regulation state that except as otherwise provided, the ADA shall not
be construed to apply a lesser standard than title V of the
Rehabilitation Act of 1973 (29 U.S.C. 791) or its accompanying
regulations.\12\ They further state that the ADA does not invalidate or
limit the remedies, rights, and procedures of any other laws that
provide greater or equal protection for people with disabilities or
people associated with them.\13\
---------------------------------------------------------------------------
\12\ 42 U.S.C. 12201(a); 28 CFR 35.103(a).
\13\ 42 U.S.C. 12201(b); 28 CFR 35.103(b).
---------------------------------------------------------------------------
The Department recognizes that entities subject to title II of the
ADA may also be subject to other statutes that prohibit discrimination
on the basis of disability. Compliance with the Department's title II
regulation does not necessarily ensure compliance with other statutes
and their implementing regulations. Title II entities are also
obligated to fulfill the ADA's title I requirements in their capacity
as employers, and those requirements are distinct from the obligations
under this rule.
Education is another context in which entities have obligations to
comply with other laws imposing affirmative obligations regarding
individuals with disabilities. The Department of Education's
regulations implementing the Individuals with Disabilities Education
Act (``IDEA'') and section 504 of the Rehabilitation Act provide
longstanding, affirmative obligations on covered schools to identify
children with disabilities, and both require covered schools to provide
a Free Appropriate Public Education (``FAPE'').\14\ This rulemaking
would build on, and would not supplant, those preexisting requirements.
A public entity must continue to meet all of its existing obligations
under other laws. A discussion of how this rule adds to the existing
educational legal environment is included under the preamble discussion
of the relevant educational exception.
---------------------------------------------------------------------------
\14\ See 20 U.S.C. 1412; 34 CFR 104.32-104.33.
---------------------------------------------------------------------------
III. Background
A. ADA Statutory and Regulatory History
The ADA broadly protects the rights of individuals with
disabilities in important areas of everyday life, such as in
employment, access to State and local government entities' services,
places of public accommodation, and transportation. The ADA also
requires newly designed and constructed or altered State and local
government entities' facilities, public accommodations, and commercial
facilities to be readily accessible to and usable by individuals with
disabilities.\15\ Section 204(a) of title II and section 306(b) of
title III direct the Attorney General to promulgate regulations to
carry out the provisions of titles II and III, other than certain
provisions dealing specifically with transportation.\16\ Title II, part
A, applies to State and local government entities and protects
qualified individuals with disabilities from discrimination on the
basis of disability in services, programs, and activities provided by
State and local government entities.
---------------------------------------------------------------------------
\15\ 42 U.S.C. 12101 et seq.
\16\ 42 U.S.C. 12134, 12186(b).
---------------------------------------------------------------------------
On July 26, 1991, the Department issued its final rules
implementing title II and title III, which are codified at 28 CFR part
35 (title II) and part 36 (title III), and include the ADA Standards
for Accessible Design (``ADA Standards'').\17\ At that time, the web
was in its infancy and was thus not used by State and local government
entities as a means of providing services or information to the public.
Thus, web content was not mentioned in the Department's title II
regulation. Only a few years later, however, as web content of general
interest became available, public entities began using web content to
provide information to the public.
---------------------------------------------------------------------------
\17\ Title III prohibits discrimination on the basis of
disability in the full and equal enjoyment of places of public
accommodation (privately operated entities whose operations affect
commerce and fall within at least one of 12 categories listed in the
ADA, such as restaurants, movie theaters, schools, day care
facilities, recreational facilities, and doctors' offices) and
requires newly constructed or altered places of public
accommodation--as well as commercial facilities (facilities intended
for nonresidential use by a private entity and whose operations
affect commerce, such as factories, warehouses, or office
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-89.
---------------------------------------------------------------------------
B. History of the Department's Title II Web-Related Interpretation and
Guidance
The Department first articulated its interpretation that the ADA
applies to websites of covered entities in 1996.\18\ Under title II,
this includes ensuring that individuals with disabilities are not, by
reason of such disability, excluded from participation in or denied the
benefits of the services, programs, and activities offered by State and
local government entities, including those offered via the web, such as
education services, voting, town meetings, vaccine registration, tax
filing systems, and applications for benefits.\19\ The Department has
since reiterated this interpretation in a variety of online
contexts.\20\ Title II of the ADA also applies when public entities use
mobile apps to offer their services, programs, and activities.
---------------------------------------------------------------------------
\18\ See Letter for Tom Harkin, U.S. Senator, from Deval L.
Patrick, Assistant Attorney General, Civil Rights Division,
Department of Justice (Sept. 9, 1996), https://www.justice.gov/crt/foia/file/666366/download [https://perma.cc/56ZB-WTHA].
\19\ See 42 U.S.C. 12132.
\20\ See U.S. Dep't of Just., Guidance on Web Accessibility and
the ADA, ADA.gov (Mar. 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/WH9E-VTCY]; Settlement Agreement Between
the United States of America and the Champaign-Urbana Mass Transit
District (Dec. 14, 2021), https://www.ada.gov/champaign-urbana_sa.pdf [https://perma.cc/VZU2-E6FZ]; Consent Decree, United
States v. The Regents of the Univ. of Cal. (Nov. 20, 2022), https://www.justice.gov/opa/press-release/file/1553291/download [https://perma.cc/9AMQ-GPP3]; Consent Decree, Dudley v. Miami Univ. (Oct. 17,
2016), https://www.ada.gov/miami_university_cd.html [https://perma.cc/T3FX-G7RZ]; Settlement Agreement Between the United States
of America and the City and County of Denver, Colorado Under the
Americans with Disabilities Act (Jan. 8, 2018), https://www.ada.gov/denver_pca/denver_sa.html [https://perma.cc/U7VE-MBSG]; Settlement
Agreement Between the United States of America and Nueces County,
Texas Under the Americans with Disabilities Act (effective Jan. 30,
2015), https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html
[https://perma.cc/TX66-WQY7]; Settlement Agreement Between the
United States of America, Louisiana Tech University, and the Board
of Supervisors for the University of Louisiana System Under the
Americans with Disabilities Act (July 22, 2013), https://www.ada.gov/louisiana-tech.htm [https://perma.cc/78ES-4FQR].
---------------------------------------------------------------------------
Many public entities now regularly offer many of their services,
programs, and activities through web content and mobile apps, and the
Department describes in detail the ways in which public entities have
been doing so later in this section. To ensure equal access to such
services, programs, and activities, the Department is undertaking this
rulemaking to provide public entities with more specific information
about how to meet their nondiscrimination obligations in the web and
mobile app contexts.
As with many other statutes, the ADA's requirements are broad and
its implementing regulations do not include specific standards for
every obligation under the statute. This has been the case in the
context of web accessibility under the ADA. Because the Department has
not adopted specific technical requirements for web content through
rulemaking, public entities have not had specific direction on how to
comply with the ADA's general requirements of nondiscrimination and
effective communication. However, public entities still must comply
with these ADA obligations with respect to their web content and mobile
apps, including before this rule's effective date.
[[Page 51953]]
The Department has consistently heard from members of the public--
especially public entities and people with disabilities--that there is
a need for additional information on how to specifically comply with
the ADA in this context. In June 2003, the Department published a
document titled ``Accessibility of State and Local Government websites
to People with Disabilities'' (https://www.ada.gov/websites2.htm
[https://perma.cc/Z7JT-USAN]), which provides tips for State and local
government entities on ways they can make their websites accessible so
that they can better ensure that people with disabilities have equal
access to the services, programs, and activities that are provided
through those websites.
In March 2022, the Department released additional guidance
addressing web accessibility for people with disabilities.\21\ This
technical assistance expanded on the Department's previous ADA guidance
by providing practical tips and resources for making websites
accessible for both title II and title III entities. It also reiterated
the Department's longstanding interpretation that the ADA applies to
all services, programs, and activities of covered entities, including
when they are offered via the web.
---------------------------------------------------------------------------
\21\ U.S. Dep't of Just., Guidance on Web Accessibility and the
ADA, ADA.gov (Mar. 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/874V-JK5Z].
---------------------------------------------------------------------------
The Department's 2003 guidance on State and local government
entities' websites noted that ``an agency with an inaccessible website
may also meet its legal obligations by providing an alternative
accessible way for citizens to use the programs or services, such as a
staffed telephone information line,'' while also acknowledging that
this is unlikely to provide an equal degree of access.\22\ The
Department's March 2022 guidance did not include 24/7 staffed telephone
lines as an alternative to accessible websites. Given the way the
modern web has developed, the Department no longer believes 24/7
staffed telephone lines can realistically provide equal access to
people with disabilities. Websites--and often mobile apps--allow the
public to get information or request a service within just a few
minutes. Getting the same information or requesting the same service
using a staffed telephone line takes more steps and may result in wait
times or difficulty getting the information. For example, State and
local government entities' websites may allow members of the public to
quickly review large quantities of information, like information about
how to register for government services, information on pending
government ordinances, or instructions about how to apply for a
government benefit. Members of the public can then use government
websites to promptly act on that information by, for example,
registering for programs or activities, submitting comments on pending
government ordinances, or filling out an application for a government
benefit. A member of the public could not realistically accomplish
these tasks efficiently over the phone. Additionally, a person with a
disability who cannot use an inaccessible online tax form might have to
call to request assistance with filling out either online or mailed
forms, which could involve significant delay, added costs, and may
require providing private information such as banking details or Social
Security numbers over the phone without the benefit of certain security
features available for online transactions. Finally, calling a staffed
telephone line lacks the privacy of looking up information on a
website. A caller needing public safety resources, for example, might
be unable to access a private location to ask for help on the phone,
whereas an accessible website would allow users to privately locate
resources. For these reasons, the Department does not now believe that
a staffed telephone line--even if it is offered 24/7--provides equal
access in the way that an accessible website can.
---------------------------------------------------------------------------
\22\ U.S. Dep't of Just., Accessibility of State and Local
Government websites to People with Disabilities, ADA.gov (June
2003), https://www.ada.gov/websites2.htm [https://perma.cc/Z7JT-USAN].
---------------------------------------------------------------------------
C. The Department's Previous Web Accessibility-Related Rulemaking
Efforts
The Department has previously pursued rulemaking efforts regarding
website accessibility under title II. On July 26, 2010, the
Department's advance notice of proposed rulemaking (``ANPRM'') titled
``Accessibility of Web Information and Services of State and Local
Government Entities and Public Accommodations'' was published in the
Federal Register.\23\ The ANPRM announced that the Department was
considering revising the regulations implementing titles II and III of
the ADA to establish specific requirements for State and local
government entities and public accommodations to make their websites
accessible to individuals with disabilities. In the ANPRM, the
Department sought information regarding what standards, if any, it
should adopt for web accessibility; whether the Department should adopt
coverage limitations for certain entities, like small businesses; and
what resources and services are available to make existing websites
accessible to individuals with disabilities. The Department also
requested comments on the costs of making websites accessible; whether
there are effective and reasonable alternatives to make websites
accessible that the Department should consider permitting; and when any
web accessibility requirements adopted by the Department should become
effective. The Department received approximately 400 public comments
addressing issues germane to both titles II and III in response to this
ANPRM. The Department later announced that it decided to pursue
separate rulemakings addressing website accessibility under titles II
and III.\24\
---------------------------------------------------------------------------
\23\ 75 FR 43460 (July 26, 2010).
\24\ See Department of Justice--Fall 2015 Statement of
Regulatory Priorities, http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html [https://perma.cc/YF2L-FTSK].
---------------------------------------------------------------------------
On May 9, 2016, the Department followed up on its 2010 ANPRM with a
detailed Supplemental ANPRM that was published in the Federal Register.
The Supplemental ANPRM solicited public comment about a variety of
issues regarding establishing technical standards for web access under
title II.\25\ The Department received more than 200 public comments in
response to the title II Supplemental ANPRM.
---------------------------------------------------------------------------
\25\ Nondiscrimination on the Basis of Disability; Accessibility
of Web Information and Services of State and Local Government
Entities, 81 FR 28658 (May 9, 2016).
---------------------------------------------------------------------------
On December 26, 2017, the Department published a Notice in the
Federal Register withdrawing four rulemaking actions, including the
titles II and III web rulemakings, stating that it was evaluating
whether promulgating specific web accessibility standards through
regulations was necessary and appropriate to ensure compliance with the
ADA.\26\ The Department has also previously stated that it would
continue to review its entire regulatory landscape and associated
agenda, pursuant to the regulatory reform provisions of Executive Order
13771 and Executive Order 13777.\27\ Those Executive Orders
[[Page 51954]]
were revoked by Executive Order 13992 in early 2021.
---------------------------------------------------------------------------
\26\ Nondiscrimination on the Basis of Disability; Notice of
Withdrawal of Four Previously Announced Rulemaking Actions, 82 FR
60932 (Dec. 26, 2017).
\27\ See Letter for Charles E. Grassley, U.S. Senator, from
Stephen E. Boyd, Assistant Attorney General, Civil Rights Division,
Department of Justice (Oct. 11, 2018), https://www.grassley.senate.gov/imo/media/doc/2018-10-11%20DOJ%20to%20Grassley%20-%20ADA%20website%20Accessibility.pdf
[https://perma.cc/8JHS-FK2Q].
---------------------------------------------------------------------------
The Department is now reengaging in efforts to promulgate
regulations establishing technical standards for web accessibility for
public entities. Accordingly, the Department has begun this distinct
rulemaking effort to address web access under title II of the ADA.
D. Need for Department Action
1. Use of Web Content by Title II Entities
Public entities regularly use the web to disseminate information
and offer programs and services to the public. Public entities use a
variety of websites to streamline their programs and services. Members
of the public routinely make online service requests--from requesting
streetlight repairs and bulk trash pickups to reporting broken parking
meters--and can often check the status of a service request online.
Public entities' websites also offer the opportunity for people to
renew their vehicle registrations, submit complaints, purchase event
permits, and pay traffic fines and property taxes, making some of these
otherwise time-consuming tasks relatively easy and expanding their
availability beyond regular business hours. Moreover, applications for
many Federal benefits, such as unemployment benefits and food stamps,
are available through State websites.
People also rely on public entities' websites to engage in civic
participation, particularly when more individuals prefer or need to
stay at home in light of changes to preferences and behavior resulting
from the COVID-19 pandemic. The Department believes that although many
public health measures addressing the COVID-19 pandemic are no longer
in place, there have been durable changes to State and local government
entities' operations and public preferences that necessitate greater
access to online services, programs, and activities.
People can now frequently watch local public hearings, read minutes
from community meetings, or take part in live chats with government
officials on the websites of State and local government entities. Many
public entities allow voters to begin the voter registration process
and obtain candidate information on their websites. Individuals
interested in running for local public offices can often find pertinent
information concerning candidate qualifications and filing requirements
on these websites as well. The websites of public entities also include
information about a range of issues of concern to the community and
about how people can get involved in community efforts to improve the
administration of government services.
Many public entities use online resources to promote access to
public benefits. People can use websites of public entities to file for
unemployment or other benefits and find and apply for job openings.
Access to these online functions became even more crucial during the
COVID-19 pandemic, when millions of Americans lost their jobs and
government services were often not available in person.\28\ As noted
previously, the Department believes that although many of these
services have become available in person again as COVID-19 public
health measures have ended, State and local government entities will
continue to offer these services online due to durable shifts in
preferences and expectations resulting from the pandemic. For example,
through the websites of State and local government entities, business
owners can register their businesses, apply for occupational and
professional licenses, bid on contracts to provide products and
services to public entities, and obtain information about laws and
regulations with which they must comply. The websites of many State and
local government entities also allow members of the public to research
and verify business licenses online and report unsavory business
practices. Access to these online services can be particularly
important for any services that have not resumed in-person
availability.
---------------------------------------------------------------------------
\28\ See Rakesh Kochhar & Jesse Bennet, U.S. Labor Market Inches
Back from the Covid-19 Shock, but Recovery is Far from Complete, Pew
Research Center (Apr. 14, 2021), https://www.pewresearch.org/fact-tank/2021/04/14/u-s-labor-market-inches-back-from-the-covid-19-shock-but-recovery-is-far-from-complete/ [https://perma.cc/29E5-LMXM].
---------------------------------------------------------------------------
Public entities are also using websites as an integral part of
public education. Public schools at all levels, including public
colleges and universities, offer programs, reading material, and
classroom instruction through websites. Access to these sites became
even more critical during the COVID-19 pandemic, when, at one point,
all U.S. public school buildings were closed.\29\ Web access is
essential, and, during part of the COVID-19 pandemic, it was often the
only way for State and local government entities to provide students
with educational services, programs, and activities like public school
classes and exams. As noted previously, the Department believes durable
changes to preferences and behavior due to the COVID-19 pandemic will
result in many educational activities continuing to be offered online.
Most public colleges and universities rely heavily on websites and
other online technologies in the application process for prospective
students; for housing eligibility and on-campus living assignments;
course registration, assignments, and discussion groups; and for a wide
variety of administrative and logistical functions in which students
and staff must participate. Similarly, in many public elementary and
secondary school settings, communications via the web are how teachers
and administrators communicate grades, assignments, and administrative
matters to parents and students.
---------------------------------------------------------------------------
\29\ See The Coronavirus Spring: The Historic Closing of U.S.
Schools (A Timeline), Education Week (July 1, 2020), https://www.edweek.org/leadership/the-coronavirus-spring-the-historic-closing-of-u-s-schools-a-timeline/2020/07 [https://perma.cc/47E8-FJ3U].
---------------------------------------------------------------------------
As noted previously, access to the web has become increasingly
important as a result of the COVID-19 pandemic, which shut down
workplaces, schools, and in-person services, and has forced millions of
Americans to stay home for extended periods.\30\ In response, the
American public has turned to the web for work, activities, and
learning.\31\ In fact, a study conducted in April 2021 found that 90
percent of adults say the web ``has been at least important to them
personally during the pandemic.'' \32\ Fifty-eight percent say it has
been essential.\33\ Web access can be particularly important for those
who live in rural communities and need to travel long distances to
reach certain physical locations like schools and libraries.\34\
---------------------------------------------------------------------------
\30\ See Colleen McClain et al., The internet and the Pandemic,
Pew Research Center (Sep. 1, 2021), https://www.pewresearch.org/internet/2021/09/01/the-internet-and-the-pandemic/ [https://perma.cc/4WVA-FQ9P].
\31\ See Kerry Dobransky & Eszter Hargittai, Piercing the
Pandemic Social Bubble: Disability and Social Media Use About COVID-
19, American Behavioral Scientist (Mar. 29, 2021), https://doi.org/10.1177/00027642211003146. A Perma archive link was unavailable for
this citation.
\32\ McClain et al., The internet and the Pandemic, at 3.
\33\ Id.
\34\ John Lai & Nicole O. Widmar, Revisiting the Digital Divide
in the COVID-19 Era, 43 Applied Econ. Perspectives and Pol'y 458
(2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7675734/
[https://perma.cc/Y75D-XWCT].
---------------------------------------------------------------------------
Currently, a large number of Americans interact with public
entities remotely and many State and local government entities provide
vital information and services for the general public online, including
information on recreational and educational programs, school closings,
State travel restrictions,
[[Page 51955]]
food assistance and employment, guidance for health care providers, and
workplace safety.\35\ Access to such web-based information and
services, while important for everyone during the pandemic, took on
heightened importance for people with disabilities, many of whom face a
greater risk of COVID-19 exposure, serious illness, and death.\36\
---------------------------------------------------------------------------
\35\ See, e.g., Coronavirus Disease 2019 (COVID-19) Outbreak,
Maryland.gov, https://coronavirus.maryland.gov/ [https://perma.cc/NAW4-6KP4]; Covid19.CA, California.gov, https://covid19.ca.gov/
[https://perma.cc/BL9C-WTJP]; Washington State Coronavirus Response,
Washington State, https://coronavirus.wa.gov/ [https://perma.cc/KLA4-KY53].
\36\ See Hannah Eichner, The Time is Now to Vaccinate High-Risk
People with Disabilities, National Health Law Program (Mar. 15,
2021), https://healthlaw.org/the-time-is-now-to-vaccinate-high-risk-people-with-disabilities/ [https://perma.cc/8CM8-9UC4].
---------------------------------------------------------------------------
According to the CDC, some people with disabilities ``might be more
likely to get infected or have severe illness because of underlying
medical conditions, congregate living settings, or systemic health and
social inequities. All people with serious underlying chronic medical
conditions like chronic lung disease, a serious heart condition, or a
weakened immune system seem to be more likely to get severely ill from
COVID-19.'' \37\ A report by the National Council on Disability
indicated that COVID-19 has a disproportionately negative impact on
people with disabilities' access to healthcare, education, and
employment, among other areas, making remote access to these
opportunities via the web even more important.\38\
---------------------------------------------------------------------------
\37\ See People with Disabilities, Centers for Disease Control
and Prevention, https://www.cdc.gov/ncbddd/humandevelopment/covid-19/people-with-disabilities.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fneed-extra-precautions%2Fpeople-with-disabilities.html [https://perma.cc/WZ7U-2EQE].
\38\ See 2021 Progress Report: The Impact of COVID-19 on People
with Disabilities, National Council on Disability (Oct. 29, 2021),
https://ncd.gov/progressreport/2021/2021-progress-report [https://perma.cc/96L7-XMKZ].
---------------------------------------------------------------------------
Individuals with disabilities can often be denied equal access to
many services, programs, and activities because many public entities'
web content is not fully accessible. Thus, there is a digital divide
between the ability of people with certain types of disabilities and
people without those disabilities to access the services, programs, and
activities of their State and local government entities.
2. Use of Mobile Applications by Title II Entities
The Department is also proposing that public entities make their
mobile apps accessible under proposed Sec. 35.200 because public
entities also use mobile apps to offer their services, programs, and
activities to the public. As discussed, a mobile app is a software
application that runs on mobile devices. Mobile apps are distinct from
a website that can be accessed by a mobile device because, in part,
mobile apps are not directly accessible on the web--they are often
downloaded on a mobile device.\39\ A mobile website, on the other hand,
is a website that is designed so that it can be accessed by a mobile
device similarly to how it can be accessed on a desktop computer.\40\
---------------------------------------------------------------------------
\39\ Mona Bushnell, What Is the Difference Between an App and a
Mobile website?, Business News Daily (updated Aug. 2, 2022), https://www.businessnewsdaily.com/6783-mobile-website-vs-mobile-app.html
[https://perma.cc/9LKC-GUEM].
\40\ Id.
---------------------------------------------------------------------------
Public entities use mobile apps to provide services and reach the
public in various ways. For example, during the COVID-19 pandemic, when
many State and local government entities' offices were closed, public
entities used mobile apps to inform people about benefits and
resources, to provide updates about the pandemic, and as a means to
show proof of vaccination status, among other things.\41\ Also, using a
public entity's mobile app, residents are able to submit nonemergency
service requests, such as cleaning graffiti or repairing a street light
outage, and track the status of these requests. Public entities' apps
take advantage of common features of mobile devices, such as camera and
Global Positioning System (``GPS'') functions, so individuals can
provide public entities with a precise description and location of
issues.\42\ These may include issues such as potholes, physical
barriers created by illegal dumping or parking, or curb ramps that need
to be fixed to ensure accessibility for some people with
disabilities.\43\ Some public transit authorities have transit apps
that use a mobile device's GPS function to provide bus riders with the
location of nearby bus stops and real-time arrival and departure
times.\44\ In addition, public entities are also using mobile apps to
assist with emergency planning for natural disasters like wildfires;
provide information about local schools; and promote tourism, civic
culture, and community initiatives.\45\
---------------------------------------------------------------------------
\41\ See, e.g., COVID-19 Virginia Resources, Virginia Department
of Social Services, https://apps.apple.com/us/app/covid-19-virginia-resources/id1507112717 [https://perma.cc/LP6N-WC9K]; Chandra Steele,
Does My State Have a COVID-19 Vaccine App, PC Mag (updated Feb. 10,
2022), https://www.pcmag.com/how-to/does-my-state-have-a-covid-19-vaccine-app [https://perma.cc/H338-MCWC].
\42\ See Using Mobile Apps in Government, IBM Ctr. for the Bus.
of Gov't, at 11 (2015), https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf [https://perma.cc/248X-8A6C].
\43\ Id. at 32.
\44\ Id. at 31.
\45\ Id. at 8.
---------------------------------------------------------------------------
3. Barriers to Web and Mobile App Accessibility
Millions of individuals in the United States have disabilities that
can affect their use of the web and mobile apps. Many of these
individuals use assistive technology to enable them to navigate
websites or access information contained on those sites. For example,
individuals who are unable to use their hands may use speech
recognition software to navigate a website, while individuals who are
blind may rely on a screen reader to convert the visual information on
a website into speech. Many websites and mobile apps fail to
incorporate or activate features that enable users with certain types
of disabilities to access all of the information or elements on the
website or app. For instance, individuals who are deaf may be unable to
access information in web videos and other multimedia presentations
that do not have captions. Individuals with low vision may be unable to
read websites or mobile apps that do not allow text to be resized or do
not provide enough contrast. Individuals with limited manual dexterity
or vision disabilities who use assistive technology that enables them
to interact with websites may be unable to access sites that do not
support keyboard alternatives for mouse commands. These same
individuals, along with individuals with cognitive and vision
disabilities, often encounter difficulty using portions of websites
that require timed responses from users but do not give users the
opportunity to indicate that they need more time to respond.
Individuals who are blind or have low vision often confront
significant barriers to accessing websites and mobile apps. For
example, a study from the University of Washington analyzed
approximately 10,000 mobile apps and found that many are highly
inaccessible to people with disabilities.\46\ The study found that 23
percent of the mobile apps reviewed did not provide content description
of images for most of their image-based buttons. As a result, the
functionality of those buttons is not accessible for people who use
screen
[[Page 51956]]
readers.\47\ Additionally, other mobile apps may be inaccessible if
they do not allow text resizing, which can provide larger text for
persons with vision disabilities.\48\
---------------------------------------------------------------------------
\46\ See Large-Scale Analysis Finds Many Mobile Apps Are
Inaccessible, University of Washington CREATE, https://create.uw.edu/initiatives/large-scale-analysis-finds-many-mobile-apps-are-inaccessible/ [https://perma.cc/442K-SBCG].
\47\ Id.
\48\ See Chase DiBenedetto, 4 ways mobile apps could be a lot
more accessible, Mashable (Dec. 9, 2021), https://mashable.com/article/mobile-apps-accessibility-fixes [https://perma.cc/WC6M-2EUL].
---------------------------------------------------------------------------
Furthermore, many websites provide information visually, without
features that allow screen readers or other assistive technology to
retrieve information on the website so it can be presented in an
accessible manner. A common barrier to website accessibility is an
image or photograph without corresponding text describing the image. A
screen reader or similar assistive technology cannot ``read'' an image,
leaving individuals who are blind with no way of independently knowing
what information the image conveys (e.g., a simple icon or a detailed
graph). Similarly, if websites lack navigational headings or links that
facilitate navigation using a screen reader, it will be difficult or
impossible for a someone using a screen reader to understand.\49\
Additionally, these websites may fail to present tables in a way that
allows the information in the table to be interpreted by someone who is
using a screen reader.\50\ Web-based forms, which are an essential part
of accessing government services, are often inaccessible to individuals
with disabilities who use screen readers. For example, field elements
on forms, which are the empty boxes on forms that hold specific pieces
of information, such as a last name or telephone number, may lack clear
labels that can be read by assistive technology. Inaccessible form
fields make it difficult for persons using screen readers to fill out
online forms, pay fees and fines, submit donations, or otherwise
participate in government services, programs, or activities using a
website. Some governmental entities use inaccessible third-party
websites to accept online payments, while others request public input
through their own inaccessible websites. These barriers greatly impede
the ability of individuals with disabilities to access the services,
programs, and activities offered by public entities on the web. In many
instances, removing certain website barriers is neither difficult nor
especially costly. For example, the addition of invisible attributes
known as alt text or alt tags to an image helps orient an individual
using a screen reader and allows them to gain access to the information
on the website. Alt text can be added to the coding of a website
without any specialized equipment.\51\ Similarly, adding headings,
which facilitate page navigation for those using screen readers, can
often be done easily as well.\52\
---------------------------------------------------------------------------
\49\ See, e.g., W3C[supreg], Easy Checks--A First Review of Web
Accessibility, (updated Jan. 31, 2023), https://www.w3.org/WAI/test-evaluate/preliminary/ [https://perma.cc/N4DZ-3ZB8].
\50\ W3C[supreg], Tables Tutorial (updated Feb. 16, 2023),
https://www.w3.org/WAI/tutorials/tables/ [https://perma.cc/FMG2-33C4].
\51\ W3C[supreg], Images Tutorial (Feb. 08, 2022), https://www.w3.org/WAI/tutorials/images/ [https://perma.cc/G6TL-W7ZC].
\52\ W3C[supreg], Providing Descriptive Headings (June 20,
2023), https://www.w3.org/WAI/WCAG21/Techniques/general/G130.html
[https://perma.cc/XWM5-LL6S].
---------------------------------------------------------------------------
4. Voluntary Compliance With Technical Standards for Web Accessibility
Has Been Insufficient in Providing Access
The web has changed significantly and its use has become far more
prevalent since Congress enacted the ADA in 1990 and the Department
subsequently promulgated its first ADA regulations. Neither the ADA nor
the Department's regulations specifically addressed public entities'
use of websites and mobile apps to provide their services, programs,
and activities. Congress contemplated, however, that the Department
would apply title II, part A of the statute in a manner that evolved
over time and it delegated authority to the Attorney General to
promulgate regulations to carry out the ADA mandate under title II,
part A.\53\ Consistent with this approach, the Department stated in the
preamble to the original 1991 ADA regulations that the regulations
should be interpreted to keep pace with developing technologies.\54\
---------------------------------------------------------------------------
\53\ See H.R. Rep. No. 101-485, pt. 2, at 108 (1990); 42 U.S.C.
12134(a).
\54\ 28 CFR part 36, app. B.
---------------------------------------------------------------------------
Since 1996, the Department has consistently taken the position that
the ADA applies to the web content of State and local government
entities. This interpretation comes from title II's application to
``all services, programs, and activities provided or made available by
public entities.'' \55\ The Department has affirmed the application of
the statute to websites in multiple technical assistance documents over
the past two decades.\56\ Further, the Department has repeatedly
enforced this obligation and worked with State and local government
entities to make their websites accessible, such as through Project
Civic Access, an initiative to promote local governments' compliance
with the ADA by eliminating physical and communication barriers
impeding full participation by people with disabilities in community
life.\57\
---------------------------------------------------------------------------
\55\ See 28 CFR 35.102.
\56\ U.S. Dep't of Just., Accessibility of State and Local
Government websites to People with Disabilities (2003), https://www.ada.gov/websites2.htm [https://perma.cc/Z7JT-USAN]; U.S. Dep't
of Just., Chapter 5: website Accessibility Under Title II of the
ADA, ADA Best Practices Tool Kit for State and Local Governments,
Ada.gov (May 7, 2007), https://www.ada.gov/pcatoolkit/chap5toolkit.htm [https://perma.cc/VM3M-AHDJ]; U.S. Dep't of Just.,
Guidance on Web Accessibility and the ADA, Ada.gov (Mar. 18, 2022),
https://https://www.ada.gov/resources/web-guidance/ [https://perma.cc/874V-JK5Z].
\57\ U.S. Dep't of Just., Project Civic Access, Ada.gov, https://www.ada.gov/civicac.htm [https://perma.cc/B6WV-4HLQ].
---------------------------------------------------------------------------
A variety of voluntary standards and structures have been developed
for the web through nonprofit organizations using multinational
collaborative efforts. For example, domain names are issued and
administered through the internet Corporation for Assigned Names and
Numbers (``ICANN''), the internet Society (``ISOC'') publishes computer
security policies and procedures for websites, and the World Wide Web
Consortium (``W3C[supreg]'') develops a variety of technical standards
and guidelines ranging from issues related to mobile devices and
privacy to internationalization of technology. In the area of
accessibility, the Web Accessibility Initiative (``WAI'') of the
W3C[supreg] created the Web Content Accessibility Guidelines
(``WCAG'').
Many organizations, however, have indicated that voluntary
compliance with these accessibility guidelines has not resulted in
equal access for people with disabilities; accordingly, they have urged
the Department to take regulatory action to ensure web and mobile app
accessibility.\58\ The National Council on Disability, an independent
Federal agency that advises the President, Congress, and other agencies
about programs, policies, practices, and procedures affecting people
with disabilities, has similarly emphasized the need for regulatory
action on this issue.\59\ The Department has also heard
[[Page 51957]]
from State and local government entities and businesses asking for
clarity on the ADA's requirements for websites through regulatory
efforts.\60\
---------------------------------------------------------------------------
\58\ See, e.g., Letter for U.S. Dep't of Just. from American
Council of the Blind et al. (Feb. 28, 2022), https://acb.org/accessibility-standards-joint-letter-2-28-22 [https://perma.cc/R77M-VPH9] (citing research showing persistent barriers in digital
accessibility); Letter for U.S. Dep't of Just. from Consortium for
Citizens with Disabilities (Mar. 23, 2022), https://www.c-c-d.org/fichiers/CCD-Web-Accessibility-Letter-to-DOJ-03232022.pdf [https://perma.cc/Q7YB-UNKV].
\59\ National Council on Disability, The Need for Federal
Legislation and Regulation Prohibiting Telecommunications and
Information Services Discrimination (Dec. 19, 2006), https://www.ncd.gov/publications/2006/Dec282006 [https://perma.cc/7HW5-NF7P]
(discussing how competitive market forces have not proven sufficient
to provide individuals with disabilities access to
telecommunications and information services); see also, e.g.,
National Council on Disability, National Disability Policy: A
Progress Report (Oct. 7, 2016), https://ncd.gov/progressreport/2016/progress-report-october-2016 [https://perma.cc/J82G-6UU8] (urging
the Department to adopt a web accessibility regulation).
\60\ See, e.g., Letter for U.S. Dep't of Just. from Nat'l Ass'n
of Realtors (Dec. 13, 2017), https://www.narfocus.com/billdatabase/clientfiles/172/3/3058.pdf [https://perma.cc/Z93F-K88P].
---------------------------------------------------------------------------
In light of the long regulatory history and the ADA's current
general requirement to make all services, programs, and activities
accessible, the Department expects that public entities have made
strides to make their web content accessible since the 2010 ANPRM was
published. However, despite the availability of voluntary web and
mobile app accessibility standards; the Department's clearly stated
position that all services, programs, and activities of public
entities, including those available on websites, must be accessible;
and case law supporting that position, individuals with disabilities
continue to struggle to obtain access to the websites of public
entities.\61\ As a result, the Department has brought enforcement
actions to address web access, resulting in a significant number of
settlement agreements with State and local government entities.\62\
---------------------------------------------------------------------------
\61\ See, e.g., Meyer v. Walthall, 528 F. Supp. 3d 928, 959
(S.D. Ind. 2021) (``[T]he Court finds that Defendants' websites
constitute services or activities within the purview of Title II and
section 504, requiring Defendants to provide effective access to
qualified individuals with a disability.''); Price v. City of Ocala,
Fla., 375 F. Supp. 3d 1264, 1271 (M.D. Fla. 2019) (``Title II
undoubtedly applies to websites . . . .''); Payan v. Los Angeles
Cmty. Coll. Dist., No. 2:17-CV-01697-SVW-SK, 2019 WL 9047062, at *12
(C.D. Cal. Apr. 23, 2019) (``[T]he ability to sign up for classes on
the website and to view important enrollment information is itself a
`service' warranting protection under Title II and section 504.'');
Eason v. New York State Bd. of Elections, No. 16-CV-4292 (KBF), 2017
WL 6514837, at *1 (S.D.N.Y. Dec. 20, 2017) (stating, in a case
involving a State's website, that ``Section 504 of the
Rehabilitation Act and Title II of the Americans with Disabilities
Act . . . , long ago provided that the disabled are entitled to
meaningful access to a public entity's programs and services. Just
as buildings have architecture that can prevent meaningful access,
so too can software.''); Hindel v. Husted, No. 2:15-CV-3061, 2017 WL
432839, at *5 (S.D. Ohio Feb. 1, 2017) (``The Court finds that
Plaintiffs have sufficiently established that Secretary Husted's
website violates Title II of the ADA because it is not formatted in
a way that is accessible to all individuals, especially blind
individuals like the Individual Plaintiffs whose screen access
software cannot be used on the website.'').
\62\ See, e.g., Settlement Agreement Between the United States
of America and the Champaign-Urbana Mass Transit District (Dec. 14,
2021), https://www.ada.gov/champaign-urbana_sa.pdf [https://perma.cc/VZU2-E6FZ]; Consent Decree, United States v. The Regents of
the Univ. of Cal. (Nov. 20, 2022), https://www.justice.gov/opa/press-release/file/1553291/download [https://perma.cc/9AMQ-GPP3];
Consent Decree, Dudley v. Miami Univ. (Oct. 13, 2016), https://www.ada.gov/miami_university_cd.html [https://perma.cc/T3FX-G7RZ];
Settlement Agreement Between the United States of America and the
City and County of Denver, Colorado Under the Americans with
Disabilities Act (Jan. 8, 2018), https://www.ada.gov/denver_pca/denver_sa.html [https://perma.cc/U7VE-MBSG]; Settlement Agreement
Between the United States of America and Nueces County, Texas Under
the Americans with Disabilities Act (effective Jan. 30, 2015),
https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html [https://perma.cc/TX66-WQY7]; Settlement Agreement Between the United States
of America, Louisiana Tech University, and the Board of Supervisors
for the University of Louisiana System Under the Americans with
Disabilities Act (July 22, 2013), https://www.ada.gov/louisiana-tech.htm [https://perma.cc/78ES-4FQR].
---------------------------------------------------------------------------
Moreover, other Federal agencies have also taken enforcement action
against public entities regarding the lack of access for people with
disabilities to websites. In December 2017, for example, the U.S.
Department of Education entered into a resolution agreement with the
Alaska Department of Education and Early Development after it found the
entity had violated Federal statutes, including title II of the ADA, by
denying people with disabilities an equal opportunity to participate in
Alaska Department of Education and Early Development's services,
programs, and activities, due to website inaccessibility.\63\
Similarly, the U.S. Department of Housing and Urban Development took
action against the City of Los Angeles, and its subrecipient housing
providers, to ensure that it maintained an accessible housing website
concerning housing opportunities.\64\
---------------------------------------------------------------------------
\63\ In re Alaska Dep't of Educ. and Early Dev., OCR Reference
No. 10161093 (U.S. Dep't of Educ. Dec. 11, 2017) (resolution
agreement), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b.pdf [https://perma.cc/DUS4-HVZJ],
superseded by https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b1.pdf [https://perma.cc/BVL6-Y59M]
(U.S. Dep't of Educ. Mar. 28, 2018) (revised resolution agreement).
\64\ See Voluntary Compliance Agreement Between the U.S.
Department of Housing and Urban Development and the City of Los
Angeles, California (Aug. 2, 2019), https://www.hud.gov/sites/dfiles/Main/documents/HUD-City-of-Los-Angeles-VCA.pdf [https://perma.cc/X5RN-AJ5K].
---------------------------------------------------------------------------
The Department believes that adopting technical standards for web
and mobile app accessibility will provide clarity to public entities
regarding how to make the services, programs, and activities they offer
the public via the web and mobile apps accessible. Adopting specific
technical standards for web and mobile app accessibility will also
provide individuals with disabilities with consistent and predictable
access to the web content and mobile apps of public entities.
IV. Section-by-Section Analysis
This section details the Department's proposed changes to the title
II regulation, including the reasoning behind the proposals, and poses
questions for public comment.
Subpart A--General
Sec. 35.104 Definitions
``Archived Web Content''
The Department proposes to add a definition for ``archived web
content'' to proposed Sec. 35.104. The proposed definition defines
``archived web content'' as ``web content that (1) is maintained
exclusively for reference, research, or recordkeeping; (2) is not
altered or updated after the date of archiving; and (3) is organized
and stored in a dedicated area or areas clearly identified as being
archived.'' The definition is meant to capture web content that, while
outdated or superfluous, is maintained unaltered in a dedicated area on
a public entity's website for historical, reference, or other similar
purposes, and the term is used in the proposed exceptions set forth in
Sec. 35.201. Throughout this rule, a public entity's ``website'' is
intended to include not only the websites hosted by the public entity,
but also websites operated on behalf of a public entity by a third
party. For example, public entities sometimes use vendors to create and
host their web content. Such content would also be covered by this
rule.
``Conventional Electronic Documents''
The Department proposes to add a definition for ``conventional
electronic documents'' to proposed Sec. 35.104. The proposal defines
``conventional electronic documents'' as ``web content or content in
mobile apps that is in the following electronic file formats: portable
document formats (`PDFs'), word processor file formats, presentation
file formats, spreadsheet file formats, and database file formats.''
The definition thus provides an exhaustive list of electronic file
formats that constitute conventional electronic documents. Examples of
conventional electronic documents include: Adobe PDF files (i.e.,
portable document formats), Microsoft Word files (i.e., word processor
files), Apple Keynote or Microsoft PowerPoint files (i.e., presentation
files), Microsoft Excel files (i.e., spreadsheet files), and FileMaker
Pro or Microsoft Access files (i.e., database files).
The term ``conventional electronic documents'' is intended to
describe those documents created or saved as an electronic file that
are commonly available on public entities' websites
[[Page 51958]]
and mobile apps in either an electronic form or as printed output. The
term is intended to capture documents where the version posted by the
public entity is not open for editing by the public. For example, if a
public entity maintains a Word version of a flyer on its website, that
would be a conventional electronic document. A third party could
technically download and edit that Word document, but their edits would
not impact the ``official'' posted version. Similarly, a Google Docs
file that does not allow others to edit or add comments in the posted
document would be a conventional electronic document. The term
``conventional electronic documents'' is used in proposed Sec.
35.201(b) to provide an exception for certain electronic documents
created by or for a public entity that are available on a public
entity's website before the compliance date of this rule and in
proposed Sec. 35.201(g) to provide an exception for certain
individualized, password-protected documents, and is addressed in more
detail in the discussion regarding proposed Sec. Sec. 35.201(b) and
(g).
``Mobile Applications (Apps)''
Mobile apps are software applications that are downloaded and
designed to run on mobile devices such as smartphones and tablets. For
the purposes of this part, mobile apps include, for example, native
apps built for a particular platform (e.g., Apple iOS, Google Android,
among others) or device and hybrid apps using web components inside
native apps.
``Special District Government''
The Department proposes to add a definition for a ``special
district government.'' The term ``special district government'' is used
in proposed Sec. 35.200(b) and is defined in proposed Sec. 35.104 to
mean ``a public entity--other than a county, municipality, or township,
or independent school district--authorized by State law to provide one
function or a limited number of designated functions with sufficient
administrative and fiscal autonomy to qualify as a separate government
and whose population is not calculated by the United States Census
Bureau in the most recent decennial Census or Small Area Income and
Poverty Estimates.'' Because special district governments do not have
populations calculated by the United States Census Bureau, their
population sizes are unknown. A special district government may
include, for example, a mosquito abatement district, utility district,
transit authority, water and sewer board, zoning district, or other
similar governmental entities that may operate with administrative and
fiscal independence.
``Total Population''
The Department proposes to add a definition for ``total
population.'' The term ``total population'' means ``the population
estimate for a public entity as calculated by the United States Census
Bureau in the most recent decennial Census or, if a public entity is an
independent school district, the population estimate as calculated by
the United States Census Bureau in the most recent Small Area Income
and Poverty Estimates.''
As mentioned previously, proposed Sec. 35.200 generally proposes
different compliance dates according to a public entity's size. The
term ``total population'' is generally used in proposed Sec. 35.200 to
refer to the size of a public entity's population as calculated by the
U.S. Census Bureau in the most recent decennial Census. If a public
entity does not have a specific population calculated by the U.S.
Census Bureau, but belongs to another jurisdiction that does, the
population of the entity is determined by the population of the
jurisdiction to which the entity belongs. For example, the total
population of a county library is the population of the county to which
the library belongs. However, because the decennial Census does not
include population estimates for public entities that are independent
school districts, the term ``total population'' with regard to
independent school districts refers to population estimates in the most
recent Small Area Income and Poverty Estimates, which includes
population estimates for these entities.
``WCAG 2.1''
The Department proposes to add a definition of ``WCAG 2.1.'' The
term ``WCAG 2.1'' refers to the 2018 version of the voluntary
guidelines for web accessibility, known as the Web Content
Accessibility Guidelines 2.1 (``WCAG''). The W3C[supreg], the principal
international organization involved in developing standards for the
web, published WCAG 2.1 in June 2018, and it is available at https://www.w3.org/TR/WCAG21/. WCAG 2.1 is discussed in more detail in proposed
Sec. 35.200 below.
``Web Content''
The Department proposes to add a definition for ``web content''
under proposed Sec. 35.104 that is based on the WCAG 2.1 definition
but is slightly less technical and intended to be more easily
understood by the public generally. The Department's proposal defines
``web content'' as ``information or sensory experience--including the
encoding that defines the content's structure, presentation, and
interactions--that is communicated to the user by a web browser or
other software. Examples of web content include text, images, sounds,
videos, controls, animations, and conventional electronic documents.''
WCAG 2.1 defines web content as ``information and sensory experience to
be communicated to the user by means of a user agent, including code or
markup that defines the content's structure, presentation, and
interactions.'' \65\
---------------------------------------------------------------------------
\65\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/#glossary [https://perma.cc/YB57-ZB8C].
---------------------------------------------------------------------------
The definition of ``web content'' attempts to describe the
different types of information and experiences available on the web.
The Department's NPRM proposes to cover the accessibility of public
entities' web content available on public entities' websites and web
pages regardless of whether the web content is viewed on desktop
computers, laptops, smartphones, or other devices.
The definition of ``web content'' also includes the encoding used
to create the structure, presentation, or interactions of the
information or experiences on web pages that range in complexity from,
for example, pages with only textual information to pages where users
can complete transactions. Examples of languages used to create web
pages include Hypertext Markup Language (``HTML''), Cascading Style
Sheets (``CSS''), Python, SQL, PHP, and JavaScript.
The Department poses questions for feedback about its proposed
approach. Comments on all aspects of this proposed rule, including
these proposed definitions, are invited. Please provide as much detail
as possible and any applicable data, suggested alternative approaches
or requirements, arguments, explanations, and examples in your
responses to the following questions.
Question 1: The Department's definition of ``conventional
electronic documents'' consists of an exhaustive list of specific file
types. Should the Department instead craft a more flexible definition
that generally describes the types of documents that are covered or
otherwise change the proposed definition, such as by including other
file types (e.g., images or movies), or removing some of the listed
file types?
Question 2: Are there refinements to the definition of ``web
content'' the Department should consider? Consider,
[[Page 51959]]
for example, WCAG 2.1's definition of ``web content'' as ``information
and sensory experience to be communicated to the user by means of a
user agent, including code or markup that defines the content's
structure, presentation, and interactions.''
Subpart H--Web and Mobile Accessibility
The Department is proposing to create a new subpart to its title II
regulation. Subpart H would address the accessibility of public
entities' web content and mobile apps.
Sec. 35.200 Requirements for Web and Mobile Accessibility
General
Proposed Sec. 35.200 sets forth specific requirements for the
accessibility of web content and mobile apps of public entities.
Proposed Sec. 35.200(a) requires a public entity to ``ensure the
following are readily accessible to and usable by individuals with
disabilities: (1) web content that a public entity makes available to
members of the public or uses to offer services, programs, or
activities to members of the public; and (2) mobile apps that a public
entity makes available to members of the public or uses to offer
services, programs, or activities to members of the public.'' As
detailed below, the remainder of proposed Sec. 35.200 sets forth the
specific standards that public entities would be required to meet to
make their web content and mobile apps accessible and the proposed
timelines for compliance.
Background on Accessibility Standards for Websites and Web Content
Since 1994, the W3C[supreg] has been the principal international
organization involved in developing protocols and guidelines for the
web.\66\ The W3C[supreg] develops a variety of voluntary technical
standards and guidelines, including ones relating to privacy,
internationalization of technology, and, relevant to this rulemaking,
accessibility. The W3C[supreg]'s WAI has developed voluntary guidelines
for web accessibility, known as WCAG, to help web developers create web
content that is accessible to individuals with disabilities.
---------------------------------------------------------------------------
\66\ W3C[supreg], About Us, https://www.w3.org/about/ [https://perma.cc/TQ2W-T377].
---------------------------------------------------------------------------
The first version of WCAG, WCAG 1.0, was published in 1999. WCAG
2.0 was published in December 2008, and is available at http://www.w3.org/TR/2008/REC-WCAG20-20081211/ [https://perma.cc/L2NH-VLCR].
WCAG 2.0 was approved as an international standard by the International
Organization for Standardization (``ISO'') and the International
Electrotechnical Commission (``IEC'') in October 2012.\67\ WCAG 2.1,
the most recent and updated recommendation of WCAG, was published in
June 2018, and is available at https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].\68\
---------------------------------------------------------------------------
\67\ W3C[supreg], Web Accessibility Guidelines 2.0 Approved as
ISO/IEC International Standard (Oct. 15, 2012), https://www.w3.org/press-releases/2012/wcag2pas/[https://perma.cc/JQ39-HGKQ].
\68\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance [https://perma.cc/5PDG-ZTJE]. Additionally, in May 2021,
WAI published a working draft for WCAG 2.2, which has yet to be
finalized. W3C[supreg], Web Content Accessibility Guidelines 2.2
(May 21, 2021), https://www.w3.org/TR/WCAG22/ [https://perma.cc/M4G8-Z2GY]. The WAI also published a working draft of WCAG 3.0 in
December 2021. W3C[supreg], Web Content Accessibility Guidelines 3.0
(Dec. 7, 2021), https://www.w3.org/TR/wcag-3.0/ [https://perma.cc/7FPQ-EEJ7].
---------------------------------------------------------------------------
WCAG 2.1 contains four principles that provide the foundation for
web accessibility: perceivable, operable, understandable, and
robust.\69\ Testable success criteria (i.e., requirements for web
accessibility that are measurable) are provided ``to be used where
requirements and conformance testing are necessary such as in design
specification, purchasing, regulation and contractual agreements.''
\70\ Thus, WCAG 2.1 contemplates establishing testable success criteria
that could be used in regulatory efforts such as this one.
---------------------------------------------------------------------------
\69\ Id.
\70\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
WCAG 2 Layers of Guidance (June 5, 2018), https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance [https://perma.cc/5PDG-ZTJE]
(emphasis added).
---------------------------------------------------------------------------
Proposed WCAG Version
The Department is proposing to adopt WCAG 2.1 as the technical
standard for web and mobile app accessibility under title II. WCAG 2.1
was published in June 2018 and is available at https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F]. WCAG 2.1 represents the most
recent and updated published recommendation of WCAG. WCAG 2.1
incorporates and builds upon WCAG 2.0--meaning that WCAG 2.1 includes
all of the WCAG 2.0 success criteria, in addition to success criteria
that were developed under WCAG 2.1.\71\ Specifically, WCAG 2.1 added 12
Level A and AA success criteria to the 38 success criteria contained in
WCAG 2.0 Level AA.\72\ The additional criteria provide important
accessibility benefits, especially for people with low vision, manual
dexterity disabilities, and cognitive and learning disabilities.\73\
The additional criteria are intended to improve accessibility for
mobile web content and mobile apps.\74\ The Department anticipates that
WCAG 2.1 is familiar to web developers as it comprises WCAG 2.0's
requirements--which have been in existence since 2008--and 12 new Level
A and AA requirements that have been in existence since 2018.
---------------------------------------------------------------------------
\71\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
\72\ Id.
\73\ Id.
\74\ See id.
---------------------------------------------------------------------------
The Department expects that adopting WCAG 2.1 as the technical
standard will have benefits that are important to ensuring access for
people with disabilities to public entities' services, programs, and
activities. For example, WCAG 2.1 requires that text be formatted so
that it is easier to read when magnified.\75\ This is important, for
example, for people with low vision who use magnifying tools. Without
the formatting that WCAG 2.1 requires, a person magnifying the text
might find reading the text disorienting because they could have to
scroll horizontally on every line.\76\
---------------------------------------------------------------------------
\75\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Reflow (June 5, 2018), https://www.w3.org/TR/WCAG21/#reflow [https://perma.cc/YRP5-M599].
\76\ See id.
---------------------------------------------------------------------------
WCAG 2.1 also has new success criteria addressing the accessibility
of mobile apps or web content viewed on a mobile device. For example,
WCAG 2.1 Success Criterion 1.3.4 requires that page orientation (i.e.,
portrait or landscape) not be restricted to just one orientation,
unless a specific display orientation is essential.\77\ This feature is
important, for example, for someone who uses a wheelchair with a tablet
attached to it such that the tablet cannot be rotated.\78\ If content
only works in one orientation (i.e., portrait or landscape) it will not
always work for this individual depending on how the tablet is
oriented, and could render that content or app unusable for the
person.\79\ Another WCAG 2.1 success criterion requires, in part, that
if a device can be operated by motion--for example, shaking the device
to undo typing--that there be an option to turn
[[Page 51960]]
off that motion sensitivity.\80\ This could be important, for example,
for someone who has tremors so that they do not accidentally undo their
typing.\81\
---------------------------------------------------------------------------
\77\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Orientation (June 5, 2018), https://www.w3.org/TR/WCAG21/#orientation [https://perma.cc/FC3E-FRYK].
\78\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK]
\79\ See id.
\80\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Motion Actuation (June 5, 2018), https://www.w3.org/TR/WCAG21/#motion-actuation [https://perma.cc/6S93-VX58].
\81\ See W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
---------------------------------------------------------------------------
Such accessibility features are critical for people with
disabilities to have equal access to their State or local government's
services, programs, and activities. This is particularly true given
that using mobile devices to access government services is commonplace.
For example, in August 2022, about 54 percent of visits to Federal
Government websites over the previous 90 days were from mobile
devices.\82\ In addition, WCAG 2.1's incorporation of mobile-related
criteria is important because of public entities' increasing use of
mobile apps in offering their services, programs, and activities via
mobile apps. As discussed in more detail later, public entities are
using mobile apps to offer a range of critical government services--
from traffic information, to scheduling trash pickup, to vaccination
appointments.
---------------------------------------------------------------------------
\82\ U.S. Gen. Servs. Admin. Digital Analytics Program, https://analytics.usa.gov/ [https://perma.cc/2YZP-KCMG].
---------------------------------------------------------------------------
Because WCAG 2.1 is the most recent recommended version of WCAG and
generally familiar to web professionals, the Department expects it is
well-positioned to continue to be relevant even as technology
inevitably evolves. In fact, the W3C[supreg] advises using WCAG 2.1
over WCAG 2.0 when possible because WCAG 2.1 incorporates more forward-
looking accessibility needs.\83\ The WCAG standards were designed to be
``technology neutral.'' \84\ This means that they are designed to be
broadly applicable to current and future web technologies.\85\ Thus,
WCAG 2.1 also allows web and mobile app developers flexibility and
potential for innovation.
---------------------------------------------------------------------------
\83\ W3C[supreg], WCAG 2.0 Overview (updated Aug. 6, 2022),
https://www.w3.org/WAI/standards-guidelines/wcag/ [https://perma.cc/L7NX-8XW3].
\84\ W3C[supreg], Introduction to Understanding WCAG (June 20,
2023), https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU].
\85\ See W3C[supreg], Understanding Techniques for WCAG Success
Criteria (June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques [https://perma.cc/AMT4-XAAL].
---------------------------------------------------------------------------
The Department also expects that public entities are likely already
familiar with WCAG 2.1 or will be able to become familiar quickly. This
is because WCAG 2.1 has been available since 2018, and it builds upon
WCAG 2.0, which has been in existence since 2008 and has been
established for years as a benchmark for accessibility. In other words,
the Department expects that web developers and professionals who work
for or with public entities are likely to be familiar with WCAG 2.1. If
they are not already familiar with WCAG 2.1, the Department expects
that they are at least likely to be familiar with WCAG 2.0 and will be
able to become acquainted quickly with WCAG 2.1's 12 additional Level A
and AA success criteria. The Department also believes that resources
exist to help public entities implement or understand how to implement
not only WCAG 2.0 Level AA, but also WCAG 2.1 Level AA. Additionally,
public entities will have two or three years to come into compliance
with a final rule, which should also provide sufficient time to get
acquainted with and implement WCAG 2.1.
According to the Department's research, WCAG 2.1 is also being
increasingly used by members of the public and governmental entities.
In fact, the Department recently included WCAG 2.1 in several
settlement agreements with covered entities addressing inaccessible
websites.\86\
---------------------------------------------------------------------------
\86\ See, e.g., Settlement Agreement with CVS Pharmacy, Inc.
(Apr. 11, 2022), https://archive.ada.gov/cvs_sa.pdf [https://perma.cc/H5KZ-4VVF]; Settlement Agreement with Meijer, Inc. (Feb. 2,
2022), https://archive.ada.gov/meijer_sa.pdf [https://perma.cc/5FGD-FK42]; Settlement Agreement with The Kroger Co. (Jan. 28, 2022),
https://archive.ada.gov/kroger_co_sa.pdf [https://perma.cc/6ASX-U7FQ]; Settlement Agreement with Champaign-Urbana Mass Transit Dist.
(Dec. 14, 2021), https://www.justice.gov/d9/case-documents/attachments/2021/12/14/champaign-urbana_sa.pdf [https://perma.cc/66XY-QGA8]; Settlement Agreement with Hy-Vee, Inc. (Dec. 1, 2021)
https://archive.ada.gov/hy-vee_sa.pdf [https://perma.cc/GFY6-BJNE];
Settlement Agreement with Rite Aid Corp. (Nov. 1, 2021), https://archive.ada.gov/rite_aid_sa.pdf [https://perma.cc/4HBF-RBK2].
---------------------------------------------------------------------------
In evaluating what technical standard to propose, the Department
also considered WCAG 2.0. In addition, the Department considered the
standards set forth under section 508 of the Rehabilitation Act of
1973, which governs the accessibility of the Federal Government's web
content and is harmonized with WCAG 2.0.\87\ In 2017, when the United
States Access Board adopted WCAG 2.0 as the technical standard for the
Federal Government's web content under section 508, WCAG 2.1 had not
been finalized.\88\ The Department ultimately decided to propose WCAG
2.1 as the appropriate standard. A number of countries that have
adopted WCAG 2.0 as their standard are now making efforts to move or
have moved to WCAG 2.1.\89\ In countries that are part of the European
Union, public sector websites and mobile apps generally must meet a
technical standard that requires conformance with the WCAG 2.1 Level AA
success criteria.\90\ And although WCAG 2.0 is the standard adopted by
the Department of Transportation in its rule implementing the Air
Carrier Access Act, which covers airlines' websites and kiosks,\91\
that rule--like the section 508 rule--was promulgated before WCAG 2.1
was published.
---------------------------------------------------------------------------
\87\ 36 CFR 1194, app. A.
\88\ See Information and Communication Technology (``ICT'')
Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017);
W3C[supreg], Web Content Accessibility Guidelines 2.1 (June 5,
2018), https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].
\89\ See e.g., Exploring WCAG 2.1 for Australian government
services, Australian Government Digital Transformation Agency (Aug.
22, 2018), https://www.dta.gov.au/blogs/exploring-wcag-21-australian-government-services. A Perma archive link was unavailable
for this citation.
\90\ Web Accessibility, European Comm'n (updated July 13, 2022),
https://digital-strategy.ec.europa.eu/en/policies/web-accessibility
[https://perma.cc/LSG9-XW7L]; Accessibility Requirements for ICT
Products and Services, European Telecomm. Standards Institute, 45-
51, 64-78 (Mar. 2021), https://www.etsi.org/deliver/etsi_en/301500_301599/301549/03.02.01_60/en_301549v030201p.pdf [https://perma.cc/5TEZ-9GC6].
\91\ See 14 CFR 382.43(c)-(e), 382.57.
---------------------------------------------------------------------------
The Department expects that the wide usage of WCAG 2.0 lays a solid
foundation for public entities to become familiar with and implement
WCAG 2.1's additional Level A and AA criteria. According to the
Department's research, approximately 48 States either use or strive to
use a WCAG 2.0 standard or greater for at least some of their web
content. It appears that at least four of these States--Louisiana,
Maryland, Nebraska, and Washington--already either use WCAG 2.1 or
strive to use WCAG 2.1 for at least some of their web content.
WCAG 2.1 represents the most up-to-date recommendation and is
generally familiar to web professionals. It offers important
accessibility benefits for people with disabilities that affect manual
dexterity, adds some criteria to reduce barriers for those with low
vision and cognitive disabilities, and expands coverage of mobile
content. Given that public entities will have two or three years to
comply, the Department views WCAG 2.1 as the appropriate technical
standard to propose at this time.
The Department is aware that a working draft for WCAG 2.2 was
published in May 2021.\92\ Several subsequent drafts have also been
[[Page 51961]]
published.\93\ All of the WCAG 2.0 and WCAG 2.1 success criteria except
for one are included in WCAG 2.2.\94\ But WCAG 2.2 also includes six
additional Level A and AA success criteria beyond those included in
WCAG 2.1.\95\ Like WCAG 2.1, WCAG 2.2 offers benefits for individuals
with low vision, limited manual dexterity, and cognitive disabilities.
For example, Success Criterion 3.3.8, which is a new criterion under
WCAG 2.2, improves access for people with cognitive disabilities by
limiting the use of cognitive function tests, like solving puzzles, in
authentication processes.\96\ Because WCAG 2.2 has not yet been
finalized and is subject to change, and web professionals have had less
time to become familiar with the additional success criteria that have
been incorporated into WCAG 2.2, the Department does not believe it is
appropriate to adopt WCAG 2.2 as the technical standard at this time.
---------------------------------------------------------------------------
\92\ W3C[supreg], Web Content Accessibility Guidelines 2.2 (May
21, 2021), https://www.w3.org/TR/2021/WD-WCAG22-20210521/ [https://perma.cc/M4G8-Z2GY].
\93\ See, e.g., W3C[supreg], Web Content Accessibility
Guidelines 2.2 (May 17, 2023), https://www.w3.org/TR/WCAG22/
[https://perma.cc/SXA7-RF32].
\94\ W3C[supreg], What's New in WCAG 2.2 Draft (May 17, 2023),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-22/ [https://perma.cc/Y67R-SFSE].
\95\ Id.
\96\ Id.
---------------------------------------------------------------------------
The Department is seeking feedback from the public about its
proposal to use WCAG 2.1 as the standard under this rule and its
assumptions underlying this decision. Please provide as much detail as
possible and any applicable data, suggested alternative approaches or
requirements, arguments, explanations, and examples in your responses
to the following questions.
Question 3: Are there technical standards or performance standards
other than WCAG 2.1 that the Department should consider? For example,
if WCAG 2.2 is finalized before the Department issues a final rule,
should the Department consider adopting that standard? If so, what is a
reasonable time frame for State and local compliance with WCAG 2.2 and
why? Is there any other standard that the Department should consider,
especially in light of the rapid pace at which technology changes?
Proposed WCAG Conformance Level
For a web page to conform to WCAG 2.1, the web page must satisfy
the success criteria under one of three levels of conformance: A, AA,
or AAA. The three levels of conformance indicate a measure of
accessibility and feasibility. Level A, which is the minimum level of
accessibility, contains criteria that provide basic web accessibility
and are the least difficult to achieve for web developers.\97\ Level
AA, which is the intermediate level of accessibility, includes all of
the Level A criteria and contains enhanced criteria that provide more
comprehensive web accessibility, and yet are still achievable for most
web developers.\98\ Level AAA, which is the highest level of
conformance, includes all of the Level A and Level AA criteria and
contains additional criteria that can provide a more enriched user
experience, but are the most difficult to achieve for web
developers.\99\ The W3C[supreg] does not recommend that Level AAA
conformance be required as a general policy for entire websites because
it is not possible to satisfy all Level AAA criteria for some
content.\100\
---------------------------------------------------------------------------
\97\ W3C[supreg], Web Content Accessibility Guidelines (WCAG) 2
Level A Conformance (July 13, 2020), https://www.w3.org/WAI/WCAG2A-Conformance [https://perma.cc/KT74-JNHG].
\98\ Id.
\99\ Id.
\100\ See W3C[supreg], Understanding Conformance, Understanding
Requirement 1, https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/9ZG9-G5N8].
---------------------------------------------------------------------------
Based on review of previous public feedback and independent
research, the Department believes that WCAG 2.1 Level AA is an
appropriate conformance level because it includes criteria that provide
web accessibility to individuals with disabilities--including those
with visual, auditory, physical, speech, cognitive, and neurological
disabilities--and yet is feasible for public entities' web developers
to implement. In addition, Level AA conformance is widely used, making
it more likely that web developers are already familiar with its
requirements. Though many of the entities that conform to Level AA do
so under WCAG 2.0, not 2.1, this still suggests a widespread
familiarity with most of the Level AA success criteria, given that 38
of the 50 Level A and AA success criteria in WCAG 2.1 are also included
in WCAG 2.0. The Department believes that Level A conformance alone is
not appropriate because it does not include criteria for providing web
accessibility that the Department understands are critical, such as a
minimum level of color contrast so that items like text boxes or icons
are easier to see, which is important for people with vision
disabilities. Also, while Level AAA conformance provides a richer user
experience, it is the most difficult to achieve for many entities.
Therefore, the Department is proposing Level AA conformance for public
feedback as to whether it strikes the right balance between
accessibility for individuals with disabilities and achievability for
public entities. Adopting a WCAG 2.1 Level AA conformance level would
make the ADA requirements consistent with a standard that has been
widely accepted internationally. Many nations have selected Level AA
conformance as their standard for web accessibility.\101\ The web
content of Federal agencies that are governed by section 508 also need
to comply with Level AA.\102\ In its proposed regulatory text in Sec.
35.200(b)(1) and (2), the Department provides that public entities must
``comply with Level A and Level AA success criteria and conformance
requirements specified in WCAG 2.1.'' WCAG 2.1 provides that for
``Level AA conformance, the web page [must] satisf[y] all the Level A
and Level AA Success Criteria . . . .'' \103\ However, individual
success criteria in WCAG 2.1 are labeled only as Level A or Level AA.
Therefore, a person reviewing individual requirements in WCAG 2.1 may
not understand that both Level A and Level AA success criteria must be
met in order to attain Level AA. Accordingly, the Department has made
explicit in its proposed regulation that both Level A and Level AA
success criteria and conformance requirements must be met in order to
comply with the proposed web accessibility requirements.
---------------------------------------------------------------------------
\101\ See W3C[supreg], Web Accessibility Laws & Policies (Mar.
21, 2018), https://www.w3.org/WAI/policies/ [https://perma.cc/5EBY-3WX4].
\102\ See Information and Communication Technology (``ICT'')
Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017).
\103\ See W3C[supreg], Conformance Requirements, Web Content
Accessibility Guidelines (WCAG) 2.1 (June 5, 2018), https://www.w3.org/TR/WCAG21/#cc1 [https://perma.cc/ZL6N-VQX4]. WCAG 2.1
also states that a Level AA conforming alternate version may be
provided. The Department has adopted a slightly different approach
to conforming alternate versions, which is discussed below.
---------------------------------------------------------------------------
Conformance Level for Small Public Entities
The Department considered proposing another population threshold of
very small entities that would be subject to a lower conformance level
or WCAG version, to reduce the burden of compliance on those entities.
However, the Department decided against this proposal due to a variety
of factors. First, this would make for inconsistent levels of WCAG
conformance across public entities, and a universal standard for
consistency in implementation would promote predictability. A universal
level of conformance would reduce confusion about which standard
applies, and it would create a basic level of conformance for all
public entities to follow. It would also allow for people with
disabilities to know what they can
[[Page 51962]]
expect when navigating a public entity's web content; for example, it
will be helpful for people with disabilities to know that they can
expect to be able to navigate a public entity's web content
independently using their assistive technology. Finally, for the
reasons discussed above, the Department believes that WCAG 2.1 Level AA
contains criteria that are critical to accessing services, programs,
and activities of public entities, which may not be included under a
lower standard. However, the Department recognizes that small public
entities--those with a total population of less than 50,000 based on
Census data--might initially face more technical and resource
challenges in complying than larger public entities. Therefore, as
discussed below, the Department has decided to propose different
compliance dates according to a public entity's size to reduce burdens
on small public entities.
Possible Alternative Standards for Compliance
The Department considered proposing to adopt the section 508
standards but decided not to take this approach. The section 508
standards are harmonized with WCAG 2.0, and for the reasons discussed
above, the Department believes WCAG 2.1--which had not been finalized
at the time the section 508 standards were promulgated--is the more
appropriate recommendation for this proposed rule. Moreover, by
adopting WCAG on its own rather than adopting it through the section
508 standards, the Department can then tailor the rule to public
entities as it does in this proposed rule.
The Department also considered adopting performance standards
instead of specific technical standards for accessibility of web
content. Performance standards establish general expectations or goals
for web accessibility and allow for compliance via a variety of
unspecified methods. Performance standards could provide greater
flexibility in ensuring accessibility as web technologies change.
However, based on what the Department has heard previously from the
public and its own knowledge of this area, the Department understands
that performance standards might be too vague and subjective and could
prove insufficient in providing consistent and testable requirements
for web accessibility. Additionally, the Department expects that
performance standards would likely not result in predictability for
either public entities or people with disabilities in the way that a
more specific technical standard would. Further, similar to a
performance standard, WCAG has been designed to allow for flexibility
and innovation in the evolving web environment. The Department
recognizes the importance of adopting a standard for web accessibility
that provides not only specific and testable requirements, but also
sufficient flexibility to develop accessibility solutions for new web
technologies. The Department believes that WCAG achieves this balance
because it provides flexibility similar to a performance standard, but
it also provides more clarity, consistency, predictability, and
objectivity. Using WCAG also enables public entities to know precisely
what is expected of them under title II, which may be of particular
benefit to jurisdictions with less technological experience. This will
assist public entities in targeting accessibility errors, which may
reduce costs they would incur without clear expectations.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 4: What compliance costs and challenges might small public
entities face in conforming with this rule? How accessible are small
public entities' web content and mobile apps currently? Do small public
entities have internal staff to modify their web content and mobile
apps, or do they use outside consulting staff to modify and maintain
their web content and mobile apps? If small public entities have
recently (for example, in the past three years) modified their web
content or mobile apps to make them accessible, what costs were
associated with those changes?
Question 5: Should the Department adopt a different WCAG version or
conformance level for small entities or a subset of small entities?
Public Entities' Use of Social Media Platforms
Public entities are increasingly using social media platforms to
provide information and communicate with the public about their
services, programs, and activities in lieu of or in addition to
engaging the public on their own websites. The Department is using the
term ``social media platforms'' to refer to websites or mobile apps of
third parties whose primary purpose is to enable users to create and
share content in order to participate in social networking (i.e., the
creation and maintenance of personal and business relationships online
through websites and mobile apps like Facebook, Instagram, Twitter, and
LinkedIn).
The Department is proposing to require that web content that public
entities make available to members of the public or use to offer
services, programs, and activities to members of the public be
accessible within the meaning of proposed Sec. 35.200. This
requirement would apply regardless of whether that web content is
located on the public entity's own website or elsewhere on the web. It
therefore covers web content that a public entity makes available via a
social media platform. Even where a social media platform is not fully
accessible, a public entity can generally take actions to ensure that
the web content that it posts is accessible and in compliance with WCAG
2.1.\104\ The Department understands that social media platforms often
make available certain accessibility features like the ability to add
captions or alt text. It is the public entity's responsibility to use
these features when it makes web content available on social media
sites. For example, if a public entity posts an image to a social media
site that allows users to post alt text, the public entity needs to
ensure that appropriate alt text accompanies that image so that screen
reader users can access the information.
---------------------------------------------------------------------------
\104\ See Federal Social Media Accessibility Toolkit Hackpad,
Digital.gov (updated June 21, 2022), https://digital.gov/resources/federal-social-media-accessibility-toolkit-hackpad/ [https://perma.cc/DJ8X-UCHA].
---------------------------------------------------------------------------
At this time, the Department is not proposing any regulatory text
specific to the web content that public entities make available to
members of the public via social media platforms because web content
posted on social media platforms will be treated the same as any other
content public entities post on the web. However, the Department is
considering creating an exception from coverage under the rule for
social media posts if they were posted before the effective date of the
rule. This exception would recognize that making preexisting social
media content accessible may be impossible at this time or result in a
significant burden. Many public entities have posted social media
content for several years, often numbering thousands of posts, which
may not all be accessible. The benefits of making all preexisting
social media posts accessible might also be limited as these posts are
intended to provide current updates on platforms that are frequently
refreshed with new information. The Department is considering this
exception in recognition of the fact that many entities' resources may
be better spent
[[Page 51963]]
ensuring that current web content is accessible, rather than reviewing
all preexisting social media content for compliance or possibly
deleting their previous posts. The Department is looking for input on
whether this approach would make sense and whether any limitations to
this approach are necessary, such as providing that the exception does
not apply when preexisting social media content is currently used to
offer a service, program, or activity, or possibly limiting this
exception when the public requests certain social media content to be
made accessible.
The Department is also weighing whether public entities'
preexisting videos posted to social media platforms such as YouTube
should be excepted from coverage due to these same concerns or
otherwise be treated differently.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 6: How do public entities use social media platforms and
how do members of the public use content made available by public
entities on social media platforms? What kinds of barriers do people
with disabilities encounter when attempting to access public entities'
services via social media platforms?
Mobile Applications
The Department is proposing to adopt the same technical standard
for mobile app accessibility as it is for web content--WCAG 2.1 Level
AA. As discussed earlier, WCAG 2.1 was published in June 2018 and was
developed, in part, to address mobile accessibility.\105\
---------------------------------------------------------------------------
\105\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
---------------------------------------------------------------------------
The Department considered applying WCAG 2.0 Level AA to mobile
apps, which is a similar approach to the requirements in the final rule
promulgated by the United States Access Board in its update to the
section 508 standards.\106\ WCAG 2.1 was not finalized when the Access
Board adopted the section 508 standards. When WCAG 2.0 was originally
drafted in 2008, mobile apps were not as widely used or developed.
Further, the technology has grown considerably since that time.
Accordingly, WCAG 2.1 provides 12 additional Level A and AA success
criteria not included in WCAG 2.0 to ensure, among other things, that
mobile apps are more accessible to individuals with disabilities using
mobile devices.\107\ For example, WCAG 2.1 includes Success Criterion
1.4.12, which ensures that text spacing like letter spacing, line
spacing, and word spacing meets certain requirements to ensure
accessibility; Success Criterion 2.5.4, which enables the user to
disable motion actuation (e.g., the ability to activate a device's
function by shaking it) to prevent such things as accidental deletion
of text; and Success Criterion 1.3.5, which allows a user to input
information such as a name or address automatically.\108\
---------------------------------------------------------------------------
\106\ See 82 FR 5790, 5815 (Jan. 18, 2017).
\107\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
\108\ W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].
---------------------------------------------------------------------------
The Access Board's section 508 standards include additional
requirements applicable to mobile apps that are not in WCAG 2.1, and
the Department is requesting feedback on whether to adopt those
requirements as well. For example, the section 508 standards apply the
following requirements not found in WCAG 2.1 to mobile apps:
interoperability requirements to ensure that a mobile app does not
disrupt a device's assistive technology for persons with disabilities
(e.g., screen readers for persons who are blind or have low vision);
requirements for mobile apps to follow preferences on a user's phone
such as settings for color, contrast, and font size; and requirements
for caption controls and audio description controls that enable users
to adjust caption and audio description functions.\109\
---------------------------------------------------------------------------
\109\ 36 CFR 1194, app. C (Sec. Sec. 502.1, 502.2.2, 503.2,
503.4.1, 503.4.2).
---------------------------------------------------------------------------
Adopting WCAG 2.1 Level AA for mobile apps will help ensure this
rule's accessibility standards for mobile apps are consistent with this
rule's accessibility standards for web content. We seek comments on
this approach below. Please provide as much detail as possible and any
applicable data, suggested alternative approaches or requirements,
arguments, explanations, and examples in your responses to the
following questions.
Question 7: How do public entities use mobile apps to make
information and services available to the public? What kinds of
barriers do people with disabilities encounter when attempting to
access public entities' services, programs, and activities via mobile
apps? Are there any accessibility features unique to mobile apps that
the Department should be aware of?
Question 8: Is WCAG 2.1 Level AA the appropriate accessibility
standard for mobile apps? Should the Department instead adopt another
accessibility standard or alternative for mobile apps, such as the
requirements from section 508 discussed above?
Requirements by Entity Size
Section 35.200(b) sets forth the proposed specific standard with
which the web content and mobile apps that public entities make
available to members of the public or use to offer services, programs,
and activities to members of the public must comply, and also proposes
time frames for compliance. The proposed requirements of Sec.
35.200(b) are generally delineated by the size of the population of the
public entity, as calculated by the U.S. Census Bureau.
Section 35.200(b)(1): Larger Public Entities
Section 35.200(b)(1) sets forth the proposed web and mobile app
accessibility requirements for public entities with a total population
of 50,000 or more. The requirements of proposed Sec. 35.200(b)(1) are
meant to apply to larger public entities--specifically, to those public
entities that do not qualify as ``small governmental jurisdictions'' as
defined in the Regulatory Flexibility Act.\110\ As applied to this
proposed rule, the Department defines the population of a public entity
by the total general population of the jurisdiction as calculated by
the U.S. Census Bureau. If a public entity does not have a specific
population calculated by the U.S. Census Bureau, but belongs to another
jurisdiction that does, the population of the entity is determined by
the population of the jurisdiction to which the entity belongs. For
example, a county police department in a county with a population of
5,000 is a small public entity, while a city police department in a
city with a population of 200,000 is not a small public entity. For
purposes of this rule, a population of a public entity is not defined
by the population that is eligible for or that takes advantage of the
specific services of the public entity. For example, a county school
district in a county with a population of 60,000 adults and children is
not a small public entity regardless of the number of students
[[Page 51964]]
enrolled or eligible for services. Similarly, individual county schools
are also not considered small public entities if they are components of
a county government that has a population of over 50,000 (i.e., when
the individual county schools are not separate legal entities). Though
a specific county school may create and maintain web content or a
mobile app, the county, as the legal entity governed by title II, is
also responsible for what happens in the individual school. The
Department expects that the specific school benefits from the resources
made available or allocated by the county.
---------------------------------------------------------------------------
\110\ 5 U.S.C. 601(5) (``[T]he term `small governmental
jurisdiction' means governments of cities, counties, towns,
townships, villages, school districts, or special districts, with a
population of less than fifty thousand . . . .'').
---------------------------------------------------------------------------
The Department is also proposing this approach because, practically
speaking, it is likely to make it easier for public entities to
determine their population size. Under the Department's proposal,
population size is used to determine a public entity's compliance time
frame. Some public entities, like libraries or public universities and
community colleges, do not have population data associated with them in
the U.S. Census. By using the population data associated with the
entity the library or university belongs to, like a county or State,
the library or university can assess its compliance time frame. This
also allows the county or State as a whole to assess compliance for its
services, programs, and activities holistically.
Proposed Sec. 35.200(b)(1) requires that a public entity, other
than a special district government, with a total population of 50,000
or more shall ensure that the web content and mobile apps it makes
available to members of the public or uses to offer services, programs,
or activities to members of the public comply with Level A and Level AA
success criteria and conformance requirements specified in WCAG 2.1.
Public entities subject to proposed Sec. 35.200(b)(1) have two years
after the publication of a final rule to make their web content and
mobile apps accessible, unless they can demonstrate that compliance
with proposed Sec. 35.200(b)(1) would result in a fundamental
alteration in the nature of a service, program, or activity or in undue
financial and administrative burdens. The limitations on a public
entity's obligation to comply with the proposed requirements are
discussed in more detail below.
The Department has received varied feedback from the public in the
past regarding an appropriate time frame for requiring compliance with
technical web accessibility standards. Individuals with disabilities or
disability advocacy organizations tended to prefer a shorter time
frame, often arguing that web accessibility has long been required by
the ADA and that extending the deadline for compliance rewards entities
that have not made efforts to make their websites accessible. Some
covered entities have asked for more time to comply. State and local
government entities have been particularly concerned about shorter
compliance deadlines, often citing budgets and staffing as major
limitations. In the past, many public entities stated that they lacked
qualified personnel to implement the web accessibility requirements of
WCAG 2.0, which was relatively new at the time. They told the
Department that in addition to needing time to implement the changes to
their websites, they also needed time to train staff or contract with
professionals who are proficient in developing accessible websites.
Considering all these factors, as well as the facts that over a decade
has passed since the Department started receiving such feedback and
there is more available technology to make web content and mobile apps
accessible, the Department is proposing a two-year implementation time
frame for public entities with a total population of 50,000 or more.
Regulated entities and the community of web developers have had over a
decade to familiarize themselves with WCAG 2.0, which was published in
2008 and serves as the foundation for WCAG 2.1, and five years to
familiarize themselves with the additional 12 Level A and AA success
criteria of WCAG 2.1. Though the Department is now proposing requiring
public entities to comply with WCAG 2.1 instead of WCAG 2.0, the
Department believes the time allowed to come into compliance is
appropriate. As discussed above, WCAG 2.1 Level AA only adds 12 Level A
and AA success criteria that were not included in WCAG 2.0. The
Department believes these additional success criteria will not
significantly increase the time or resources that it will take for a
public entity to come into compliance with the proposed rule beyond
what would have already been required to comply with WCAG 2.0, though
the Department seeks the public's input on this belief. The Department
therefore believes this proposal balances the resource challenges
reported by public entities with the interests of individuals with
disabilities in accessing the multitude of services, programs, and
activities that public entities now offer via the web and mobile apps.
Section 35.200(b)(2): Small Public Entities and Special District
Governments
The Department has also previously received public input on whether
it should consider different compliance requirements or a different
compliance date for small entities in order to take into account the
impact on small entities as required by the Regulatory Flexibility Act
of 1980 and Executive Order 13272.\111\ Many disability organizations
and individuals have opposed having a different timetable or different
accessibility requirements for smaller entities, stating that many
small entities have smaller and less complex websites with fewer web
pages, which would make compliance easier. The Department has also
heard from other members of the public opposing different timetables or
different accessibility requirements for smaller entities. These
commenters note that small public entities are protected from excessive
burdens deriving from rigorous compliance dates or stringent
accessibility standards by the ADA's ``undue burden'' compliance
limitations. It is also the Department's understanding that many web
accessibility professionals may operate online and could be available
to assist entities with compliance regardless of their location.
---------------------------------------------------------------------------
\111\ See Nondiscrimination on the Basis of Disability;
Accessibility of Web Information and Services of State and Local
Government Entities and Public Accommodations, 75 FR 43460, 43467
(July 26, 2010).
---------------------------------------------------------------------------
Many of those expressing concerns about compliance dates,
especially web developers as well as State and local government
entities, have stated that compliance in incremental levels would help
public entities to allocate resources--both financial and personnel--to
bring their websites into compliance. Such entities have noted that
many small State and local government entities do not have a dedicated
web developer or staff. The Department has heard that when these small
entities develop or maintain their own websites, they often do so with
staff or volunteers who have only a cursory knowledge of web design and
use manufactured web templates or software, which may create
inaccessible web pages. Some small public entities have expressed
concern that even when they do use outside help, there is likely to be
a shortage of professionals who are proficient in web accessibility and
can assist all public entities in bringing their websites into
compliance. Some public entities have also expressed concern that
smaller entities would need to take
[[Page 51965]]
down their websites because they would not be able to comply with the
accessibility requirements, although the Department notes that public
entities would not be required to undertake changes that would impose
an undue financial and administrative burden.
In light of these concerns, proposed Sec. 35.200(b)(2) sets forth
the Department's proposed web and mobile app accessibility requirements
for small public entities and special district governments.
Specifically, proposed Sec. 35.200(b)(2) covers those public entities
with a total population of less than 50,000 and special district
governments. Section 35.200(b)(2) would require these public entities
to ensure that the web content and mobile apps they make available to
the public or use to offer services, programs, and activities to
members of the public, comply with Level A and Level AA success
criteria and conformance requirements specified in WCAG 2.1, unless
they can demonstrate that compliance would result in a fundamental
alteration in the nature of a service, program, or activity or in undue
financial and administrative burdens. This is the same substantive
standard that applies to larger entities. However, the Department is
proposing to give these small entities additional time to bring their
web content and mobile apps into compliance with proposed Sec.
35.200(b)(2). Specifically, small public entities and special district
governments covered by proposed Sec. 35.200(b)(2) will have three
years after the publication of a final rule to make their web content
and mobile apps compliant with the Department's proposed requirements.
The Department believes this longer phase-in period would be prudent to
allow small public entities and special district governments to
properly allocate their personnel and financial resources in order to
bring their web content and mobile apps into compliance with the
Department's proposed requirements. However, the Department welcomes
feedback on whether there are alternatives to delaying compliance
requirements by a year that could better balance the needs of small
public entities and the people with disabilities who live in those
communities.
Proposed Sec. 35.200(b)(2) also covers public entities that are
special district governments. As previously noted, special district
governments are governments that are authorized to provide a single
function or a limited number of functions, such as a zoning or transit
authority. As discussed above, proposed Sec. 35.200 proposes different
compliance dates according to the size of the population of the public
entity, as calculated by the U.S. Census Bureau. The Department
believes applying to special district governments the same compliance
date as proposed for small public entities (i.e., compliance in three
years) may be appropriate for two reasons. First, because the U.S.
Census Bureau does not provide population estimates for special
district governments, these limited-purpose public entities would find
it difficult to obtain population estimates that are objective and
reliable in order to determine their duties under the proposed rule.
Though some special district governments may estimate their total
populations, these entities may use varying methodology to calculate
population estimations, which may lead to confusion and inconsistency
in the application of the proposed accessibility requirements. Second,
although special district governments in some instances may serve a
large population, unlike counties, cities, or townships with large
populations that provide a wide range of online government services and
programs and have large and varying budgets, special district
governments are authorized to provide a single function or a limited
number of functions (e.g., to provide mosquito abatement or water and
sewer services) and have more limited or specialized budgets.
Therefore, proposed Sec. 35.200(b)(2) extends the deadline for
compliance for special district governments to three years, as it does
for small public entities.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 9: How will the proposed compliance date affect small
public entities? Are there technical or budget constraints that small
public entities would face in complying with this rule, such that a
longer phase-in period is appropriate?
Question 10: How will the proposed compliance date affect people
with disabilities, particularly in rural areas?
Question 11: How should the Department define ``small public
entity''? Should categories of small public entities other than those
already delineated in this proposed rule be subject to a different WCAG
2.1 conformance level or compliance date?
Question 12: Should the Department consider factors other than
population size, such as annual budget, when establishing different or
tiered compliance requirements? If so, what should those factors be,
why are they more appropriate than population size, and how should they
be used to determine regulatory requirements?
Limitations
The proposed rule sets forth the limitations on public entities'
obligations to comply with the specific requirements of this proposed
rule. For example, where it would impose an undue financial and
administrative burden to comply with WCAG 2.1 (or part of WCAG 2.1),
public entities would not be required to remove their web content and
mobile apps, forfeit their web presence, or otherwise undertake changes
that would be unduly burdensome. Further, as proposed in Sec.
35.200(b), the web and mobile app accessibility requirements would not
require any public entity to take actions that would result in a
fundamental alteration in the nature of a service, program, or
activity.
In circumstances where officials of a public entity believe that
the proposed action would fundamentally alter the service, program, or
activity or would result in undue financial and administrative burdens,
a public entity has the burden of proving that compliance would result
in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the head of the
public entity or their designee after considering all resources
available for use in the funding and operation of the service, program,
or activity and must be accompanied by a written statement of the
reasons for reaching that conclusion. If an action required to comply
with proposed Sec. 35.200(b) would result in such an alteration or
such burdens, a public entity must take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that, to the maximum extent possible, individuals with
disabilities receive the benefits or services provided by the public
entity. For more information, see the discussion below regarding
limitations on obligations under proposed Sec. 35.204.
Captions for Live-Audio Content
WCAG 2.1 Level AA Success Criterion 1.2.4 requires synchronized
captions for live-audio content. The intent of this success criterion
is to ``enable people who are deaf or hard of hearing to watch real-
time presentations. Captions provide the part of the content available
via the audio track. Captions not only include dialogue, but also
identify who is speaking and notate sound effects and
[[Page 51966]]
other significant audio.'' \112\ Modern live captioning often can be
created with the assistance of technology, such as by assigning
captioners through Zoom or other conferencing software, which
integrates captioning with live meetings.
---------------------------------------------------------------------------
\112\ W3C[supreg], Captions (Live), Understanding SC 1.2.4,
Understanding WCAG 2.0: A Guide to Understanding and Implementing
WCAG 2.0, http://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-real-time-captions.html [https://perma.cc/NV74-U77R] (emphasis in
original).
---------------------------------------------------------------------------
The Department proposes to apply the same compliance date to all of
the WCAG 2.1 Level AA success criteria, including live-audio captioning
requirements. As noted above, this would allow for three years after
publication of the final rule for small public entities and special
district governments to comply, and two years for large public
entities. The Department believes this approach is appropriate for
several reasons. First, the Department understands that technology
utilizing live-audio captioning has developed in recent years and
continues to develop. In addition, the COVID-19 pandemic moved a
significant number of formerly in-person meetings, activities, and
other gatherings to online settings, many of which incorporated live-
audio captioning. As a result of these developments, live-audio
captioning has become even more critical for individuals with certain
types of disabilities to participate fully in civic life. And while the
Department believes that the two- and three-year periods described
above afford a sufficient amount of time for public entities to
allocate resources towards live-audio captioning, public entities have
the option to demonstrate that compliance with any success criterion
would result in a fundamental alteration in the nature of a service,
program, or activity or in undue financial and administrative burdens.
Though at least one country that has adopted WCAG 2.0 Level AA as
its standard for web accessibility has exempted entities from having to
comply with the live-audio captioning requirements,\113\ the Department
does not believe this approach is appropriate or necessary under the
current circumstances, given the current state of live-audio captioning
technology and the critical need for live-audio captioning for people
with certain types of disabilities to participate more fully in civic
life. Further, the Department believes that the state of live-audio
captioning technology has advanced since 2016 when Canada made the
decision to exempt entities from the live-audio captioning
requirements.\114\ However, the Department is interested in learning
more about compliance capabilities. Accordingly, the Department poses
several questions for commenters about the development of live-audio
captioning technology and the Department's proposed requirement.
---------------------------------------------------------------------------
\113\ See W3C[supreg], Canada (last updated Feb. 9, 2017),
https://www.w3.org/WAI/policies/canada/ [https://perma.cc/W2DS-FAE9].
\114\ See id.
---------------------------------------------------------------------------
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 13: Should the Department consider a different compliance
date for the captioning of live-audio content in synchronized media or
exclude some public entities from the requirement? If so, when should
compliance with this success criterion be required and why? Should
there be a different compliance date for different types or sizes of
public entities?
Question 14: What types of live-audio content do public entities
and small public entities post? What has been the cost for providing
live-audio captioning?
Sec. 35.201 Exceptions
This rule would require public entities to make their web content
and mobile apps accessible. However, the Department believes it may be
appropriate in some situations for certain content to be excepted from
compliance with the technical requirements of this proposed rule. The
Department has heard a range of views on this issue, including that a
title II regulation should not include any exceptions because the
compliance limitations for undue financial and administrative burdens
would protect public entities from any unrealistic requirements. On the
other hand, the Department has also heard that exceptions are necessary
to avoid substantial burdens on public entities. The Department also
expects that such exceptions may help public entities avoid uncertainty
about whether they need to ensure accessibility in situations where it
might be extremely difficult. After consideration of the public's views
and after its independent assessment, the Department is proposing the
following exceptions and poses questions for public feedback. The
Department is interested in feedback about whether these proposed
exceptions would relieve the burden on public entities, and also how
these proposed exceptions would impact people with disabilities.
The Department is proposing exceptions from coverage--subject to
certain limitations--for the following seven categories of web content:
(1) archived web content; (2) preexisting conventional electronic
documents; (3) web content posted by third parties on a public entity's
website; (4) third-party web content linked from a public entity's
website; (5) course content on a public entity's password-protected or
otherwise secured website for admitted students enrolled in a specific
course offered by a public postsecondary institution; (6) class or
course content on a public entity's password-protected or otherwise
secured website for students enrolled, or parents of students enrolled,
in a specific class or course at a public elementary or secondary
school; and (7) conventional electronic documents that are about a
specific individual, their property, or their account and that are
password-protected or otherwise secured. Additionally, there are
certain limitations to these exceptions--situations in which the
otherwise excepted content still must be made accessible. This proposed
rule's exceptions as well as the limitations on those exceptions are
explained below.
Archived Web Content
Public entities' websites can often include a significant amount of
archived web content, which may contain information that is outdated,
superfluous, or replicated elsewhere. The Department's impression is
that generally, this historic information is of interest to only a
small segment of the general population. Still, the information may be
of interest to some members of the public, including some individuals
with disabilities, who are conducting research or are otherwise
interested in these historic documents. The Department is aware and
concerned, however, that based on current technologies, public entities
would need to expend considerable resources to retroactively make
accessible the large quantity of historic or otherwise outdated
information available on public entities' websites. Thus, proposed
Sec. 35.201(a) provides an exception from the web access requirements
of proposed Sec. 35.200 for web content that meets the definition of
``archived web content'' in proposed Sec. 35.104. As mentioned
previously, proposed Sec. 35.104 defines ``archived web content'' as
``web content that (1) is maintained exclusively for reference,
research, or recordkeeping; (2) is not altered or updated after the
date of archiving; and (3) is organized and stored in a dedicated area
or areas clearly identified as being archived.''
[[Page 51967]]
The archived web content exception allows public entities to keep and
maintain historic web content, while utilizing their resources to make
accessible the many up-to-date materials that people need to currently
access public services or to participate in civic life.
The Department notes that under this exception, public entities may
not circumvent their accessibility obligations by merely labeling their
web content as ``archived'' or by refusing to make accessible any
content that is old. The exception focuses narrowly on content that
satisfies all three of the criteria necessary to qualify as ``archived
web content,'' namely content that is maintained exclusively for
reference, research, or recordkeeping; is not altered or updated after
the date of archiving; and is organized and stored in a dedicated area
or areas clearly identified as being archived. If any one of those
criteria is not met, the content does not qualify as ``archived web
content.'' For example, if an entity maintains content for any purpose
other than reference, research, or recordkeeping--such as for purposes
of offering a current service, program, or activity--then that content
would not fall within the exception, even if an entity labeled it as
``archived.'' Similarly, an entity would not be able to circumvent its
accessibility obligations by rapidly moving newly posted content that
is maintained for a purpose other than reference, research, or
recordkeeping, or that the entity continues to update, from a non-
archived section of its website to an archived section.
Though the Department proposes that archived web content be
excepted from coverage under this rule, if an individual with a
disability requests that certain archived web content be made
accessible, public entities generally have an existing obligation to
make these materials accessible in a timely manner and free of
charge.\115\
---------------------------------------------------------------------------
\115\ See, e.g., 28 CFR 35.130(b)(7)(i), (f), 35.160(b)(2).
---------------------------------------------------------------------------
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 15: How do public entities currently manage content that
is maintained for reference, research, or recordkeeping?
Question 16: What would the impact of this exception be on people
with disabilities?
Question 17: Are there alternatives to this exception that the
Department should consider, or additional limitations that should be
placed on this exception? How would foreseeable advances in technology
affect the need for this exception?
Preexisting Conventional Electronic Documents
As discussed in the section-by-section analysis for proposed Sec.
35.104 above, the Department is proposing to add a definition for
``conventional electronic documents.'' Specifically, the proposed
definition provides that the term ``conventional electronic documents''
``means web content or content in mobile apps that is in the following
electronic file formats: portable document formats (`PDF'), word
processor file formats, presentation file formats, spreadsheet file
formats, and database file formats.'' This list of conventional
electronic documents is intended to be an exhaustive list of file
formats, rather than an open-ended list.
Proposed Sec. 35.201(b) provides that ``conventional electronic
documents created by or for a public entity that are available on a
public entity's website or mobile app before the date the public entity
is required to comply with this rule'' do not have to comply with the
accessibility requirements of proposed Sec. 35.200, ``unless such
documents are currently used by members of the public to apply for,
gain access to, or participate in a public entity's services, programs,
or activities.''
The Department's research indicates that many websites of public
entities contain a significant number of conventional electronic
documents, such as comprehensive reports on water quality containing
text, images, charts, graphs, and maps. The Department expects that
many of these conventional electronic documents are in PDF format, but
many conventional electronic documents are formatted as word processor
files (e.g., Microsoft Word files), presentation files (e.g., Apple
Keynote or Microsoft PowerPoint files), spreadsheet files (e.g.,
Microsoft Excel files), and database files (e.g., FileMaker Pro or
Microsoft Access files).
Because of the substantial number of conventional electronic
documents that public entities make available on their websites and
mobile apps, and because of the difficulty of remediating some complex
types of information and data to make them accessible after-the-fact,
the Department believes public entities should generally focus their
personnel and financial resources on developing new conventional
electronic documents that are accessible and remediating existing
conventional electronic documents that are currently used by members of
the public to access the public entity's services, programs, or
activities. For example, if before the date a public entity is required
to comply with this rule, the entity's website contains a series of
out-of-date PDF reports on local COVID-19 statistics, those reports
generally need not comply with WCAG 2.1. Similarly, if a public entity
maintains decades' worth of water quality reports in conventional
electronic documents on the same web page as its current water quality
report, the old reports that were posted before the date the entity was
required to comply with this rule generally do not need to comply with
WCAG 2.1. As the public entity posts new reports going forward,
however, those reports must comply with WCAG 2.1. This approach is
expected to reduce the burdens on public entities.
This exception is subject to a limitation: the exception does not
apply to any preexisting documents that are currently used by members
of the public to apply for, access, or participate in the public
entity's services, programs, or activities. In referencing ``documents
that are currently used,'' the Department intends to cover documents
that are used by members of the public at any given point in the
future, not just at the moment in time when this rule is published.
This limitation includes documents that provide instructions or
guidance. For example, a public entity must not only make an
application for a business license accessible, but it must also make
accessible other materials that may be needed to obtain the license,
complete the application, understand the process, or otherwise take
part in the program, such as business license application instructions,
manuals, sample knowledge tests, and guides, such as ``Questions and
Answers'' documents.
The Department notes that a public entity may not rely on this
``preexisting conventional electronic documents'' exception to
circumvent its accessibility obligations by, for example, converting
all of its web content to conventional electronic document formats and
posting those documents before the date the entity must comply with
this rule. As noted above, any documents that are currently used by
members of the public to access the public entity's services, programs,
or activities would need to be accessible as defined under this rule,
even if those documents were posted before the date the entity was
required to comply with the rule. And if an entity updates a
conventional electronic document after the date the entity must
[[Page 51968]]
comply with this rule, that document would no longer qualify as
``preexisting,'' and would thus need to be made accessible as defined
under this rule.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 18: Where do public entities make conventional electronic
documents available to the public? Do public entities post conventional
electronic documents anywhere else on the web besides their own
websites?
Question 19: Would this ``preexisting conventional electronic
documents'' exception reach content that is not already excepted under
the proposed archived web content exception? If so, what kinds of
additional content would it reach?
Question 20: What would the impact of this exception be on people
with disabilities? Are there alternatives to this exception that the
Department should consider, or additional limitations that should be
placed on this exception? How would foreseeable advances in technology
affect the need for this exception?
Third-Party Web Content
Public entities' websites can include or link to many different
types of third-party content (i.e., content that is created by someone
other than the public entity), some of which is posted by or on behalf
of public entities and some of which is not. For example, many public
entities' websites contain third-party web content like maps,
calendars, weather forecasts, news feeds, scheduling tools,
reservations systems, or payment systems. Third-party web content may
also be posted by members of the public on a public entity's online
message board or other sections of the public entity's website that
allow public comment. In addition to third-party content that is posted
on the public entity's own website, public entities frequently provide
links to third-party content (i.e., links on the public entity's
website to content that has been posted on another website that does
not belong to the public entity), including links to outside resources
and information.
The Department has heard a variety of views regarding whether or
not public entities should be responsible for ensuring that third-party
content on their websites and linked third-party content are
accessible. Some maintain that public entities cannot be held
accountable for third-party content on their websites, and without such
an exception, public entities may have to remove the content
altogether. Others have suggested that public entities should not be
responsible for third-party content and linked content unless that
content is necessary for individuals to access public entities'
services, programs, or activities. The Department has also previously
heard the view, however, that public entities should be responsible for
third-party content because an entity's reliance on inaccessible third-
party content can prevent people with disabilities from having equal
access to the public entity's own services, programs, and activities.
Furthermore, boundaries between web content generated by a public
entity and by a third party are often difficult to discern.
At this time, the Department is proposing the following two limited
exceptions related to third-party content in Sec. Sec. 35.201(c)-(d)
and is posing questions for public comment.
Section 35.201(c): Web Content Posted by a Third Party on a Public
Entity's Website
Proposed Sec. 35.201(c) provides an exception to the web
accessibility requirements of proposed Sec. 35.200 for ``web content
posted by a third party that is available on a public entity's
website.''
The Department is proposing this exception in recognition of the
fact that individuals other than a public entity's agents sometimes
post content on a public entity's website. For example, members of the
public may sometimes post on a public entity's online message boards,
wikis, social media, or other web forums, many of which are
unregulated, interactive spaces designed to promote the sharing of
information and ideas. Members of the public may post frequently, at
all hours of the day or night, and a public entity may have little or
no control over the content posted. In some cases, a public entity's
website may include posts from third parties dating back many years,
which are likely of limited, if any, relevance today. Because public
entities often lack control over this third-party content, it may be
challenging (or impossible) for them to make it accessible. Moreover,
because this third-party content may be outdated or unrelated to a
public entity's services, programs, and activities, there may be only
limited benefit to requiring public entities to make this content
accessible. Accordingly, the Department believes it is appropriate to
create an exception for this content. However, while this exception
applies to web content posted by third parties, it does not apply to
the tools or platforms used to post third-party content on a public
entity's website such as message boards--these tools and platforms are
subject to the rule's technical standard.
This exception applies to, among other third-party content,
documents filed by third parties in administrative, judicial, and other
legal proceedings that are available on a public entity's website. This
example helps to illustrate why the Department believes this exception
is necessary. Many public entities have either implemented or are
developing an automated process for electronic filing of documents in
administrative, judicial, or legal proceedings in order to improve
efficiency in the collection and management of these documents. Courts
and other public entities receive high volumes of filings in these
sorts of proceedings each year. The majority of these documents are
submitted by third parties--such as a private attorney in a legal case
or other members of the public--and often include appendices, exhibits,
or other similar supplementary materials that may be difficult to make
accessible.
However, the Department notes that public entities have existing
obligations under title II of the ADA to ensure the accessibility of
their services, programs, and activities.\116\ Accordingly, for
example, if a person with a disability is a party to a case and
requests access to inaccessible filings submitted by a third party in a
judicial proceeding that are available on a State court's website, the
court may need to timely provide those filings in an accessible format.
Similarly, public entities may need to provide reasonable modifications
to ensure that people with disabilities have access to the entities'
services, programs, and activities. For example, if a hearing had been
scheduled in the proceeding referenced above, the court might need to
postpone the hearing if it did not provide the filings in an accessible
format to the requestor in sufficient time for the requestor to review
the documents before the scheduled hearing.
---------------------------------------------------------------------------
\116\ 28 CFR 35.130, 35.160.
---------------------------------------------------------------------------
Sometimes a public entity itself chooses to post content created by
a third party on its website. This exception does not apply to content
posted by the public entity itself, even if the content was originally
created by a third party. For example, many public entities post third-
party content on their websites, such as calendars, scheduling tools,
maps, reservations systems, and payment systems that were developed
[[Page 51969]]
by an outside technology company. To the extent a public entity chooses
to rely on third-party content on its website, it must select third-
party content that meets the requirements of proposed Sec. 35.200.
Moreover, a public entity may not delegate away its obligations
under the ADA.\117\ Accordingly, if a public entity relies on a
contractor or another third party to post content on the entity's
behalf, the public entity retains responsibility for ensuring the
accessibility of that content. For example, if a public housing
authority relies on a third-party contractor to collect applications
for placement on a waitlist for housing, the public housing authority
must ensure that this content is accessible.
---------------------------------------------------------------------------
\117\ See 28 CFR 35.130(b)(1) (prohibiting discrimination
through a contractual, licensing, or other arrangement that would
provide an aid, benefit, or service to a qualified individual with a
disability that is not equal to that afforded others).
---------------------------------------------------------------------------
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 21: What types of third-party web content can be found on
websites of public entities and, how would foreseeable advances in
technology affect the need for creating an exception for this content?
To what extent is this content posted by the public entities
themselves, as opposed to third parties? To what extent do public
entities delegate to third parties to post on their behalf? What degree
of control do public entities have over content posted by third
parties, and what steps can public entities take to make sure this
content is accessible?
Question 22: What would the impact of this exception be on people
with disabilities?
Section 35.201(d): Third-Party Content Linked From a Public Entity's
Website
Proposed Sec. 35.201(d) provides that a public entity is not
responsible for the accessibility of third-party web content linked
from the public entity's website ``unless the public entity uses the
third-party web content to allow members of the public to participate
in or benefit from the public entity's services, programs, or
activities.'' Many public entities' websites include links to other
websites that contain information or resources in the community offered
by third parties that are not affiliated with the public entity.
Clicking on one of these links will take an individual away from the
public entity's website to the website of a third party. Typically, the
public entity has no control over or responsibility for a third party's
web content or the operation of the third party's website. Accordingly,
the public entity has no obligation to make the content on a third
party's website accessible. For example, if for purely informational or
reference purposes, a public university posts a series of links to
restaurants and tourist attractions that members of the public may wish
to visit in the surrounding area, the public entity is not responsible
for ensuring the websites of those restaurants and tourist attractions
are accessible.
Proposed Sec. 35.201(d) generally allows public entities to
provide relevant links to third-party web content that may be helpful
without making them responsible for the third party's web content.
However, the Department's title II regulation prohibits discrimination
in the provision of any aid, benefit, or service provided by public
entities directly or through contractual, licensing, or other
arrangements.\118\ Therefore, if the public entity uses the linked
third-party web content to allow members of the public to participate
in or benefit from the public entity's services, programs, or
activities, then the public entity must ensure it only links to third-
party web content that complies with the web accessibility requirements
of proposed Sec. 35.200. This approach is consistent with public
entities' obligation to make all of their services, programs, or
activities accessible to the public, including those it provides
through third parties.\119\ For example, a public entity that links to
online payment processing websites offered by third parties to accept
the payment of fees, parking tickets, or taxes must ensure that the
third-party web content it links to in order for members of the public
to pay for the public entity's services, programs, or activities
complies with the web accessibility requirements of proposed Sec.
35.200. In other words, if a public entity links to a website for a
third-party payment service that the entity allows the public to use to
pay taxes, the public entity would be using that third-party web
content to allow members of the public to participate in its tax
program, and the linked third-party web content would need to comply
with this rule. Otherwise, the public entity's tax program would not be
equally accessible to people with disabilities. Similarly, if a public
entity links to a third-party website that processes applications for
benefits or requests to sign up for classes or programs the public
entity offers, the public entity is using the third party's linked web
content to allow members of the public to participate in the public
entity's services, programs, or activities, and the public entity must
thus ensure that it links to only third-party web content that complies
with the requirements of proposed Sec. 35.200.
---------------------------------------------------------------------------
\118\ 28 CFR 35.130(b)(1).
\119\ See 28 CFR 35.130(b)(1)(ii) (prohibiting discrimination
through a contractual, licensing, or other arrangement that would
provide an aid, benefit, or service to a qualified individual with a
disability that is not equal to that afforded others).
---------------------------------------------------------------------------
The Department believes this approach strikes the appropriate
balance between acknowledging that public entities may not have the
ability to make third parties' web content accessible and recognizing
that public entities do have the ability to choose to use only third-
party content that is accessible when that content is used to allow
members of the public to participate in or benefit from the public
entity's services, programs, or activities.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 23: Do public entities link to third-party web content to
allow members of the public to participate in or benefit from the
entities' services, programs, or activities? If so, to what extent does
the third-party web content that public entities use for that purpose
comply with WCAG 2.1 Level AA?
Question 24: What would the impact of this exception be on people
with disabilities and how would foreseeable advances in technology
affect the need for this exception?
External Mobile Apps
Many public entities use mobile apps that are developed, owned, and
operated by third parties, such as private companies, to allow the
public to access the entity's services, programs, or activities. We
will refer to these mobile apps as ``external mobile apps.'' \120\ One
example of an external mobile app is the ``ParkMobile'' app, a private
company's app that some cities direct the public to in order to pay for
[[Page 51970]]
parking in the city.\121\ In addition, members of the public use mobile
apps that are operated by private companies, like the ``SeeClickFix''
app, to submit non-emergency service requests such as fixing a pothole
or a streetlight.\122\
---------------------------------------------------------------------------
\120\ In this document, we refer to web content that is created
by someone other than a public entity as ``third-party web
content.'' We note that we do not use ``third-party'' to describe
mobile apps here to avoid confusion. It is our understanding that
the term ``third-party mobile app'' appears to have a different
meaning in the technology industry and some understand ``a third-
party app'' as an application that is provided by a vendor other
than the manufacturer of the device or operating system provider.
See Alice Musyoka, Third-Party Apps, Webopedia (Aug. 4, 2022),
https://www.webopedia.com/definitions/third-party-apps/ [https://perma.cc/SBW3-RRGN].
\121\ See ParkMobile Parking App, https://parkmobile.io [https://perma.cc/G7GY-MDFE].
\122\ See Using Mobile Apps in Government, IBM Ctr. for the Bus.
of Gov't, at 32-33 (2015), https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf
[https://perma.cc/248X-8A6C].
---------------------------------------------------------------------------
At this time, the Department is not proposing to create an
exception for public entities' use of external mobile apps (e.g.,
mobile apps operated by a third party) from proposed Sec. 35.200. We
expect that public entities are using external mobile apps mostly to
offer the entities' services, programs, and activities, such that
creating an exception for these apps would not be appropriate.
Accordingly, the Department is seeking comment and additional
information on external mobile apps that public entities use to offer
their services, programs, and activities. Please provide as much detail
as possible and any applicable data, suggested alternative approaches
or requirements, arguments, explanations, and examples in your
responses to the following questions.
Question 25: What types of external mobile apps, if any, do public
entities use to offer their services, programs, and activities to
members of the public, and how accessible are these apps? While the
Department has not proposed an exception to the requirements proposed
in Sec. 35.200 for public entities' use of external mobile apps,
should the Department propose such an exception? If so, should this
exception expire after a certain time, and how would this exception
impact persons with disabilities?
Password-Protected Class or Course Content of Public Educational
Institutions
Proposed Sec. 35.201(e) and (f) provide exceptions for public
educational institutions' password-protected class or course content
where there is no student with a disability enrolled in the class or
course (or, in the elementary and secondary school context, where there
is no student enrolled in the class or course who has a parent with a
disability) who needs the password-protected content to be made
accessible.
Public educational institutions, like many other public
institutions, use their websites to provide a variety of services,
programs, and activities to members of the public. Many of the
services, programs, and activities on these websites are available to
anyone. The content on these websites can include such general
information as the academic calendar, enrollment process, admission
requirements, school lunch menus, school policies and procedures, and
contact information. Under the proposed regulation, all such services,
programs, or activities available to the public on the websites of
public educational institutions must comply with the requirements of
proposed Sec. 35.200 unless the content is subject to a proposed
exception.
In addition to the information available to the general public on
the websites of public educational institutions, the websites of many
schools, colleges, and universities also make certain services,
programs, and activities available to a discrete and targeted audience
of individuals (e.g., students taking particular classes or courses or,
in the elementary or secondary school context, parents of students
enrolled in particular classes or courses). This information is often
provided using a Learning Management System (``LMS'') or similar
platform that can provide secure online access and allow the exchange
of educational and administrative information in real time. LMSs allow
public educational institutions and their faculty and staff to exchange
and share information with students and parents about classes or
courses and students' progress. For example, faculty and staff can
create and collect assignments, post grades, provide real-time
feedback, and share subject-specific media, documents, and other
resources to supplement and enrich the curriculum. Parents can track
their children's attendance, assignments, grades, and upcoming class
events. To access the information available on these platforms,
students (and parents in the elementary and secondary school context)
generally must obtain a password, login credentials, or some equivalent
from the educational institution. The discrete population that has
access to this content may not always include a person with a
disability. For example, a student who is blind may not have enrolled
in a psychology course, or a parent who is deaf may not have a child
enrolled in a particular ninth-grade world history class.
The Department's regulatory proposal would require that the LMS
platforms that public elementary and secondary schools, colleges, and
universities use comply with proposed Sec. 35.200. However, subject to
limitations, the Department is proposing an exception for password-
protected class or course content. Thus, while the LMS platform would
need to be accessible, class or course content (such as syllabi and
assigned readings) posted on the password-protected LMS platform would
not need to be, except in specified circumstances. Specifically, the
content available on password-protected websites for specific classes
or courses would generally be excepted from the requirements of
proposed Sec. 35.200 unless a student is enrolled in that particular
class or course and the student (or the parent \123\ in the elementary
and secondary school context) would be unable, because of a disability,
to access the content posted on the password-protected website for that
class or course. Thus, once a student with a disability (or a student
in an elementary or secondary school with a parent with a disability)
is enrolled in a particular class or course, the content available on
the password-protected website for the specific class or course would
need to be made accessible in accordance with certain compliance dates
discussed below. This may include scenarios in which a student with a
disability (or, in the elementary and secondary school context, a
student whose parent has a disability) preregisters, enrolls, or
transfers into a class or course or acquires a disability during the
term, or when a school otherwise identifies a student in a class or
course (or their parent in the elementary and secondary school context)
as having a disability. The educational institution would generally be
required to make the course content for that class or course fully
compliant with all WCAG 2.1 Level AA success criteria, not merely the
criteria related to that student or parent's disability. This will
ensure that course content becomes more accessible to all students over
time. In addition, the Department expects that it will be more
straightforward for public entities to comply with WCAG 2.1 Level AA as
a whole, rather than attempting to identify and isolate the WCAG 2.1
success criteria that relate to a specific student, and then repeating
that process for a subsequent student with a different disability.
---------------------------------------------------------------------------
\123\ The Department notes that the term ``parent'' as used
throughout proposed Sec. 35.201(f) is intended to include
biological, adoptive, step-, or foster parents; legal guardians; or
other individuals recognized under Federal or State law as having
parental rights.
---------------------------------------------------------------------------
The Department proposes this exception for class and course content
based on its understanding that it would be burdensome to require
public educational institutions to make
[[Page 51971]]
accessible all of the documents, videos, and other content that many
instructors upload and assign via LMS websites. For instance,
instructors may scan hard-copy documents and then upload them to LMS
sites as conventional electronic documents. In some instances, these
documents comprise multiple chapters from books and may be hundreds of
pages long. Similarly, instructors may upload videos or other
multimedia content for students to review. The Department believes that
making all of this content accessible when students with disabilities
(or their parents in the elementary and secondary context) are not
enrolled in the class or course may be onerous for public educational
institutions, but the Department also understands that it is critical
for students and parents with disabilities to have access to needed
course content.
The Department believes its proposal provides a balanced approach
by ensuring access to students with disabilities (or, in elementary and
secondary school settings, parents with disabilities) enrolled in the
educational institution, while recognizing that there are large amounts
of class or course content that may not immediately need to be accessed
by individuals with disabilities because they have not enrolled in a
particular class or course.
By way of analogy and as an example, under the Department's
existing title II regulations, public educational institutions are not
required to proactively provide accessible course handouts to all
students in a course, but they are required to do so for a student with
a disability who needs them to access the course content. The
Department envisions the requirements proposed here as an online
analogue: while public educational institutions are not required to
proactively make all password-protected course handouts accessible, for
example, once an institution knows that a student with a disability is
enrolled in a course and, accordingly, needs the content to be made
accessible, the institution must do so. The institution must also
comply with its obligations to provide accessible course content under
all other applicable laws, including the IDEA.
The Department appreciates that some public educational
institutions may find it preferable or more effective to make all class
or course content accessible from the outset without waiting for a
student with a disability (or, in the elementary and secondary school
context, a student with a parent with a disability) to enroll in a
particular class or course, and nothing in this rule would prevent
public educational institutions from taking that approach. Even if
public educational institutions do not take this approach, the
Department expects that those institutions will likely need to take
steps in advance so that they are prepared to make all class or course
content for a particular course accessible within the required
timeframes discussed below when there is an enrolled student with a
disability (or, in the elementary and secondary school context, an
enrolled student with a parent with a disability) who needs access to
that content.
Because the nature, operation, and structure of public elementary
and secondary schools are different from those of public colleges and
universities, the proposed regulation sets forth separate requirements
for the two types of institutions.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following question.
Question 26: Are there particular issues relating to the
accessibility of digital books and textbooks that the Department should
consider in finalizing this rule? Are there particular issues that the
Department should consider regarding the impact of this rule on
libraries?
Public Postsecondary Institutions: Password-Protected Web Content
In proposed Sec. 35.201(e), the Department is considering an
exception to the requirements proposed in Sec. 35.200 for public
postsecondary institutions, subject to two limitations. This exception
would provide that ``course content available on a public entity's
password-protected or otherwise secured website for admitted students
enrolled in a specific course offered by a public postsecondary
institution'' would not need to comply with the web accessibility
requirements of proposed Sec. 35.200 unless one of the two limitations
described below applies. As used in this context, ``admitted students''
refers to students who have applied to, been accepted by, and are
enrolled in a particular educational institution. These students
include both matriculated students (i.e., students seeking a degree)
and non-matriculated students (i.e., continuing education students or
non-degree-seeking students). As noted above, this exception applies
only to password-protected or otherwise secured content. Content may be
otherwise secured if it requires some process of authentication or
login to access the content.
The exception is not intended to apply to password-protected
content for classes or courses that are made available to the general
public, or a subset thereof, without enrolling at a particular
educational institution. Such classes or courses generally only require
limited, if any, registration to participate. These types of classes or
courses may sometimes be referred to as Massive Open Online Courses, or
MOOCs. Because access to the content on these password-protected
websites is not limited to a discrete student population within an
educational institution but is instead widely available to the general
public--sometimes without limits as to enrollment--any individual,
including one with a disability, may enroll or participate at almost
any time. Under these circumstances, the public entity must make such
class or course content accessible from the outset of the class or
course regardless of whether a student with a disability is known to be
participating. The Department is interested in the public's feedback on
this exception, and in particular the impact it may have on public
institutions' continued use of MOOCs.
The phrase ``enrolled in a specific course'' as used in proposed
Sec. 35.201(e) limits the exception to password-protected course
content for a particular course, at a particular time, during a
particular term. For example, if a university offers a 20th-Century
Irish Literature course at 10 a.m. that meets on Mondays, Wednesdays,
and Fridays for the fall semester of the 2029-2030 academic year, the
exception would apply to the password-protected course content for that
course, subject to the limitations discussed below.
The proposed exception in Sec. 35.201(e) would not apply to non-
course content on the public entity's password-protected website that
is generally available to all admitted students. For example, forms for
registering for class, applications for meal plans or housing, academic
calendars, and announcements generally made available to all students
enrolled in the postsecondary institution would all be required to
comply with proposed Sec. 35.200. In addition, if a public
postsecondary institution made course content for specific courses
available to all admitted students on a password-protected website,
regardless of whether students had enrolled in that specific course,
the exception would not apply, even if such content was only made
available for a limited time, such as within a set time frame for
course shopping.
[[Page 51972]]
Sections 35.201(e)(1)-(2): Limitations to the Exception for Password-
Protected Course Content for Specific Courses
As noted previously, there are two important limitations to the
general exception for course content on password-protected websites of
postsecondary institutions in proposed Sec. 35.201(e); both
limitations apply to situations in which an admitted student with a
disability is enrolled in a particular course at a postsecondary
institution and the student, because of a disability, would be unable
to access the content on the password-protected website for the
specific course. The phrase ``the student, because of a disability,
would be unable to access'' is meant to make clear that these
limitations are not triggered merely by the enrollment of a student
with a disability, but instead they are triggered by the enrollment of
a student whose disability would make them unable to access the content
on the password-protected course website. These limitations would also
be triggered by the development or identification of such a disability
while a student is enrolled, or the realization that a student's
disability makes them unable to access the course content during the
time that they are enrolled. The phrase ``unable to access'' does not
necessarily mean a student has no access at all. Instead, the phrase
``unable to access'' is intended to cover situations in which a
student's disability would limit or prevent their ability to equally
access the relevant content.
The provisions set forth in the limitations to the exception are
consistent with longstanding obligations of public entities under title
II of the ADA. Public entities are already required to make appropriate
reasonable modifications and ensure effective communication, including
by providing the necessary auxiliary aids and services to students with
disabilities, under the current title II regulation. It is the public
educational institution, not the student, that is responsible for
ensuring that it is meeting these obligations. Such institutions,
therefore, should be proactive in addressing the access needs of
admitted students with disabilities, including those who would be
unable to access inaccessible course content on the web. This also
means that when an institution knows that a student with a disability
is unable to access inaccessible content, the institution should not
expect or require that the student first attempt to access the
information and be unable to do so before the institution's obligation
to make the content accessible arises.
Correspondingly, when an institution has notice that such a student
is enrolled in a course, all of the content available on the password-
protected website for that course must be made accessible in compliance
with the accessibility requirements of proposed Sec. 35.200. The
difference between the two limitations to the exception to proposed
Sec. 35.201(e) is the date that triggers compliance. The triggering
event is based on when the institution knew, or should have known, that
such a student with a disability would be enrolled in a specific course
and would be unable to access the content available on the password-
protected website.
The application of the limitation in proposed Sec. 35.201(e)(1)
and (e)(2), discussed in detail below, is contingent upon the
institution having notice both that a student with a disability is
enrolled in a specific course and that the student cannot access the
course content because of their disability. Once an institution is on
notice that a student with a disability is enrolled in a specific
course and that the student's disability would render the student
unable to access the content available on the password-protected
website for the specific course, the password-protected course content
for that course must be made accessible within the time frames set
forth in proposed Sec. 35.201(e)(1) and (e)(2), which are described in
greater detail below.
The first proposed limitation to the exception for postsecondary
institutions, proposed Sec. 35.201(e)(1), would require that ``if a
public entity is on notice that an admitted student with a disability
is pre-registered in a specific course offered by a public
postsecondary institution and that the student, because of a
disability, would be unable to access the content available on the
public entity's password-protected or otherwise secured website for the
specific course,'' then ``all content available on the public entity's
password-protected or otherwise secured website for the specific course
must comply with the requirements of Sec. 35.200 by the date the
academic term begins for that course offering. New content added
throughout the term for the course must also comply with the
requirements of Sec. 35.200 at the time it is added to the website.''
Students may register for classes and make accessibility requests ahead
of the start of the term--often during the previous term. The
institution therefore knows, or should know, that a student with a
disability has registered for a particular course or notified the
school that content must be made accessible for a particular course.
This provision would ensure that students with disabilities have timely
access to and equal opportunity to benefit from content available on a
password-protected website for their particular courses.
The second proposed limitation to the exception for postsecondary
institutions, proposed Sec. 35.201(e)(2), applies to situations in
which ``a public entity is on notice that an admitted student with a
disability is enrolled in a specific course offered by a public
postsecondary institution after the start of the academic term, and
that the student, because of a disability, would be unable to access
the content available on the public entity's password-protected or
otherwise secured website for the specific course.'' In this instance,
unlike proposed Sec. 35.201(e)(1), the postsecondary institution is
not on notice until after the start of the academic term that a student
is enrolled in a particular course and that the student, because of a
disability, would be unable to access the content on the password-
protected course website. In such circumstances, all content available
on the public entity's password-protected website for the specific
course must comply with the requirements of proposed Sec. 35.200
within five business days of such notice. This second limitation would
apply to situations in which students have not pre-registered in a
class, such as when students enroll in a class during the add/drop
period, or where waitlisted or transfer students enroll in a class at
the start of, or during, the academic term. This second limitation to
the exception for postsecondary institutions would also apply to
situations in which the institution was not on notice that the enrolled
student had a disability and would be unable to access online course
content until after the academic term began--because, for example, the
student newly enrolled at the institution or was recently diagnosed
with a disability.
In proposing the five-day remediation requirement in this
limitation, the Department is attempting to strike the appropriate
balance between providing postsecondary institutions with a reasonable
opportunity to make the content on the password-protected or otherwise
secured website accessible and providing individuals with disabilities
full and timely access to this information that has been made available
to all other students in the course. The Department believes five days
provides a reasonable opportunity to make the relevant content
accessible in most cases, subject to the general limitations under
proposed Sec. 35.204, entitled ``Duties.'' However, the
[[Page 51973]]
Department is interested in the public's feedback and data on whether
this remediation requirement provides a reasonable opportunity to make
the relevant content accessible, and whether a shorter or longer period
would be more appropriate in most cases.
If, for example, a public college offers a specific fall semester
course, a student with a disability pre-registers for it and, because
of disability, that student would be unable to access the content
available on the password-protected website for that course, all
content available on the institution's password-protected website for
that specific course must comply with the requirements of proposed
Sec. 35.200 by the date the academic semester begins for the fall
semester (according to the first limitation). If, instead, that same
student does not enroll in that particular course until two days after
the start of the fall semester, all content available on the
institution's password-protected or otherwise secured website for that
specific course must comply with the requirements of proposed Sec.
35.200 within five business days of notice that a student with a
disability is enrolled in that particular course and, because of
disability, would be unable to access the content (according to the
second limitation).
The exception applies to course content such as conventional
electronic documents, multimedia content, or other course material
``available'' on a public entity's password-protected or otherwise
secured website. As such, the two limitations apply when that content
is made ``available'' to students with disabilities enrolled in a
specific course who are unable to access course content. Although a
professor may load all of their course content on the password-
protected website at one time, they may also stagger the release of
particular content to their students at various points in time during
the term. It is when this content is made available to students that it
must be made accessible in compliance with proposed Sec. 35.200.
The two limitations to the exception for password-protected course
content state that the limitations apply whenever ``the student,
because of a disability, would be unable to access the content
available on the public entity's password-protected website for the
specific course.'' Pursuant to longstanding obligations of public
entities under title II of the ADA, the public postsecondary
institution must continue to take other steps necessary to timely make
inaccessible course content accessible to an admitted student with a
disability during the five-day period proposed in the second
limitation, unless doing so would result in a fundamental alteration or
undue financial and administrative burden. This could include timely
providing alternative formats, a reader, or a notetaker for the student
with a disability, or providing other auxiliary aids and services that
enable the student with a disability to participate in and benefit from
the services, programs, and activities of the public entity while the
public entity is making the course content on the password-protected
website accessible.
Once the obligation is triggered to make password-protected course
content accessible for a specific course, the obligation is ongoing for
the duration of the course (i.e., the obligation is not limited to
course content available at the beginning of the term). Rather, all web
content newly added throughout the remainder of the student's
enrollment in the course must also be accessible at the time it is made
available to students. Furthermore, once a public postsecondary
institution makes conventional electronic documents, multimedia
content, or other course material accessible in accordance with the
requirements of proposed Sec. 35.201(e)(1) or (e)(2), the institution
must maintain the accessibility of that specific content as long as
that content is available to students on the password-protected course
website, in compliance with the general accessibility requirement set
forth in proposed Sec. 35.200. However, new content added later, when
there is no longer a student with a disability who is unable to access
inaccessible web content enrolled in that specific course, would not
need to be made accessible because that course-specific web content
would once again be subject to the exception, unless and until another
student with a disability is enrolled in that course.
With regard to third-party content linked to from a password-
protected or otherwise secured website for a specific course, the
exception and limitations set forth in proposed Sec. 35.201(d) apply
to this content, even when a limitation under proposed Sec.
35.201(e)(1) or (e)(2) has been triggered requiring all the content
available to students on a password-protected website for a specific
course to be accessible. Accordingly, third-party web content to which
a public entity provides links for informational or resource purposes
is not required to be accessible; however, if the postsecondary
institution uses the third-party web content to allow members of the
public to participate in or benefit from the institution's services,
programs, or activities, then the postsecondary institution must ensure
it links to third-party web content that complies with the web
accessibility requirements of proposed Sec. 35.200. For example, if a
postsecondary institution requires students to use a third-party
website it links to on its password-protected course website to
complete coursework, then the third-party web content must be
accessible.
The Department believes that this approach strikes a proper balance
of providing necessary and timely access to course content, while not
imposing burdens where web content is currently only utilized by a
population of students without relevant disabilities, but it welcomes
public feedback on whether alternative approaches might strike a more
appropriate balance.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 27: How difficult would it be for public postsecondary
institutions to comply with this rule in the absence of this exception?
Question 28: What would the impact of this exception be on people
with disabilities?
Question 29: How do public postsecondary institutions communicate
general information and course-specific information to their students?
Question 30: Do public postsecondary institutions commonly provide
parents access to password-protected course content?
Question 31: The proposed exception and its limitations are
confined to content on a password-protected or otherwise secured
website for students enrolled in a specific course. Do public
postsecondary institutions combine and make available content for
particular groups of students (e.g., newly admitted students or
graduating seniors) using a single password-protected website and, if
so, should such content be included in the exception?
Question 32: On average, how much content and what type of content
do password-protected course websites of postsecondary institutions
contain? Is there content posted by students or parents? Should content
posted by students or parents be required to be accessible and, if so,
how long would it take a public postsecondary institution to make it
accessible?
Question 33: How long would it take to make course content
available on a public entity's password-protected or otherwise secured
website for a particular course accessible, and does this vary based on
the type of course? Do students need access to course
[[Page 51974]]
content before the first day of class? How much delay in accessing
online course content can a student reasonably overcome in order to
have an equal opportunity to succeed in a course, and does the answer
change depending on the point in the academic term that the delay
occurs?
Question 34: To what extent do public postsecondary institutions
use or offer students mobile apps to enable access to password-
protected course content? Should the Department apply the same
exceptions and limitations to the exceptions under proposed Sec.
35.201(e) and (e)(1)-(2), respectively, to mobile apps?
Question 35: Should the Department consider an alternative
approach, such as requiring that all newly posted course content be
made accessible on an expedited time frame, while adopting a later
compliance date for remediating existing content?
Public Elementary and Secondary Schools: Password-Protected Web Content
In proposed Sec. 35.201(f), the Department is considering an
exception to the requirements proposed in Sec. 35.200 for public
elementary and secondary schools that would provide, subject to four
limitations, that ``class or course content available on a public
entity's password-protected or otherwise secured website for students
enrolled, or parents of students enrolled, in a specific class or
course at a public elementary or secondary school'' would not need to
comply with the web accessibility requirements of proposed Sec.
35.200.
Because parents of students in elementary and secondary schools
have greater rights, roles, and responsibilities with regard to their
children and their children's education than in the postsecondary
education setting, and because these parents typically interact with
such schools much more often and in much greater depth and detail,
parents are expressly included in both the general exception for
password-protected web content in proposed Sec. 35.201(f) and its
limitations.\124\ Parents use password-protected websites to access
progress reports and grades, track homework and long-term project
assignments, and interact regularly with their children's teachers and
administrators.
---------------------------------------------------------------------------
\124\ The Department notes that the term ``parent'' as used
throughout proposed Sec. 35.201(f) is intended to include
biological, adoptive, step-, or foster parents; legal guardians; or
other individuals recognized under Federal or State law as having
parental rights.
---------------------------------------------------------------------------
Proposed exception Sec. 35.201(f) provides that ``class or course
content available on a public entity's password-protected or otherwise
secured website for students enrolled, or parents of students enrolled,
in a specific class or course offered by a public elementary or
secondary school'' does not need to comply with the accessibility
requirements of proposed Sec. 35.200 unless and until a student is
enrolled in that particular class or course and either the student or
the parent would be unable, because of a disability, to access the
content available on the password-protected website. As used in this
context, ``enrolled . . . in a specific class or course'' limits the
exception to password-protected class or course content for a
particular class or course during a particular academic term. For
example, content on a password-protected website for students, and
parents of students, in a specific fifth-grade class would not need to
be made accessible unless a student enrolled, or the parent of a
student enrolled, in the class that term would be unable, because of a
disability, to access the content on the password-protected website.
The proposed exception in Sec. 35.201(f) is not intended to apply
to password-protected content that is available to all students or
their parents in a public elementary or secondary school. Content on
password-protected websites that is not limited to students enrolled,
or parents of students enrolled, in a specific class or course, but
instead is available to all students or their parents at the public
elementary or secondary school is not subject to the exception. For
example, a school calendar available on a password-protected website to
which all students or parents at a particular elementary school are
given a password would not be subject to the exception for password-
protected web content for a specific class or course. It would,
therefore, need to comply with the requirements of proposed Sec.
35.200.
Sections 35.201(f)(1)-(4): Limitations to the Exception for Password-
Protected Class or Course Content
There are four critical limitations to the general exception in
proposed Sec. 35.201(f) for public elementary and secondary schools'
class or course content. These limitations are identical to those
discussed above in the postsecondary context, except that they arise
not only when a school is on notice that a student with a disability is
enrolled in a particular class or course and cannot access content on
the class or course's password-protected website because of their
disability, but also when the same situation arises for a parent with a
disability. The discussion above of the limitations in the
postsecondary context applies with equal force here, and a shorter
discussion of the limitations in the elementary and secondary context
follows. However, the Department acknowledges that there are existing
legal frameworks specific to the public elementary and secondary
education context which are described further in this section.
The first limitation, in proposed Sec. 35.201(f)(1), addresses
situations in which the public entity is on notice before the beginning
of the academic term that a student with a disability is pre-registered
in a specific class or course offered by a public elementary or
secondary school, and the student, because of a disability, would be
unable to access the content available on the public entity's password-
protected or otherwise secured website for the specific class or
course. In such circumstances, all content available on the public
entity's password-protected website for the specific class or course
must comply with the requirements of proposed Sec. 35.200 by the date
the term begins for that class or course. New content added throughout
the term for the class or course must also comply with the requirements
of proposed Sec. 35.200 at the time it is added to the website.
Similarly, the second limitation, proposed Sec. 35.201(f)(2),
addresses situations in which the pre-registered student's parent has a
disability. Proposed Sec. 35.201(f)(2) applies when the public entity
is on notice that a student is pre-registered in a public elementary or
secondary school's class or course, and that the student's parent needs
the content to be accessible because of a disability that inhibits
access to the content available on the password-protected website for
the specific class or course. In such circumstances, all content
available on the public entity's password-protected website for the
specific class or course must comply with the requirements of proposed
Sec. 35.200 by the date the school term begins for that class or
course. New content added throughout the term for the class or course
must also comply with the requirements of proposed Sec. 35.200 at the
time it is added to the website.
The third and fourth limitations to the exception for class or
course content on password-protected websites for particular classes or
courses at elementary and secondary schools are similar to the first
and second limitations but have different triggering
[[Page 51975]]
events. These limitations apply to situations in which a student is
enrolled in a public elementary or secondary school's class or course
after the term begins, or when a school is otherwise not on notice
until after the term begins that there is a student or parent with a
disability who is unable to access class or course content because of
their disability. The third limitation, in proposed Sec. 35.201(f)(3),
would apply once a public entity is on notice that ``a student with a
disability is enrolled in a public elementary or secondary school's
class or course after the term begins and that the student, because of
a disability, would be unable to access the content available on the
public entity's password-protected or otherwise secured website for the
specific class or course.'' In such circumstances, all content
available on the public entity's password-protected or otherwise
secured website for the specific class or course must comply with the
requirements of proposed Sec. 35.200 within five business days of such
notice. New content added throughout the term for the class or course
must also comply with the requirements of proposed Sec. 35.200 at the
time it is added to the website.
Proposed Sec. 35.201(f)(4), the fourth limitation, applies the
same triggering event as in proposed Sec. 35.201(f)(3) to situations
in which the student's parent has a disability. Proposed Sec.
35.201(f)(4) would apply once a public entity is on notice that a
student is enrolled in a public elementary or secondary school's class
or course after the term begins, and that the student's parent needs
the content to be accessible because of a disability that would inhibit
access to the content available on the public entity's password-
protected website for the specific class or course. In such
circumstances, all content available on the public entity's password-
protected or otherwise secured website for the specific class or course
must comply with the requirements of proposed Sec. 35.200 within five
business days of such notice. New content added throughout the term for
the class or course must also comply with the requirements of proposed
Sec. 35.200 at the time it is added to the website.
The procedures for enrollment in the public elementary or secondary
school context likely vary from the postsecondary context. Unlike in
postsecondary institutions, public elementary and secondary schools
generally have more autonomy and authority regarding student placement
in a particular class or course. The student or parent generally does
not control placement in a particular class or course. To the extent a
parent or student has such autonomy or authority, the application of
the limitations in proposed Sec. 35.201(f)(1) through (f)(4) is
contingent on whether the public elementary or secondary school knows,
or should know, that a student with a disability is enrolled, or a
parent with a disability has a child enrolled, in a particular class or
course, and that the student or parent would be unable to access the
class or course content because of their disability.
Regardless of what process a school follows for notification of
enrollment, accessibility obligations for password-protected class or
course content come into effect once a school is on notice that
materials need to be made accessible under these provisions. For
example, some schools that allow students to self-select the class or
course in which they enroll may require students with disabilities to
notify their guidance counselor or the special education coordinator
each time they have enrolled in a class or course. With respect to
parents, some schools may have a form that parents fill out as part of
the process for enrolling a student in a school, or in a particular
class or course in that school, indicating that they (the parent) are
an individual with a disability who, because of their disability, needs
auxiliary aids or services. Other schools may publicize the schools'
responsibility to make class or course content accessible to parents
with disabilities and explain the process for informing the school that
they cannot access inaccessible websites. Under this rule, regardless
of the process a school follows, once the public elementary or
secondary school is on notice, the password-protected class or course
content for that class or course must be made accessible within the
time frames set forth in proposed Sec. 35.201(f)(1) through (f)(4). We
note that the ADA would prohibit limiting assignment of students with
disabilities only to classes for which the content has already been
made accessible.\125\
---------------------------------------------------------------------------
\125\ See 28 CFR 35.130.
---------------------------------------------------------------------------
The Department emphasizes that in the public elementary and
secondary school context a variety of Federal laws include robust
protections for students with disabilities, and this rule is intended
to build on, but not to supplant, those protections for students with
disabilities. Public schools that receive Federal financial assistance
already must ensure they comply with obligations under other statutes
such as the IDEA and section 504 of the Rehabilitation Act, including
the Department of Education's regulations implementing those statutes.
The IDEA and section 504 already include affirmative obligations that
covered public schools work to identify children with disabilities,
regardless of whether the schools receive notice from a parent that a
student has a disability, and provide a Free Appropriate Public
Education (FAPE).\126\ The Department acknowledges that educational
entities likely already employ procedures under those frameworks to
identify children with disabilities and assess their educational needs.
Under the IDEA and section 504, schools have obligations to identify
students with the relevant disabilities that would trigger the
limitations in proposed Sec. 35.201(f)(1) through (f)(4). The proposed
rule would add to and would not supplant the already robust framework
for identifying children with disabilities and making materials
accessible. The language used in the educational exceptions and their
limitations is not intended to replace or conflict with those existing
procedures. In other words, regardless of the means by which schools
identify students with the relevant disabilities here, including
procedures developed to comply with the IDEA and section 504
regulations, once a school is on notice that either the student or the
parent has a disability and requires access because of that disability,
the limitation is triggered. Further, schools should not alter their
existing practices to wait for notice because of this rule--this rule
does not modify existing requirements that schools must follow under
other statutes such as the IDEA and section 504.
---------------------------------------------------------------------------
\126\ See 20 U.S.C. 1412; 34 CFR 104.32-104.33.
---------------------------------------------------------------------------
Federal and State laws may have a process for students who are
newly enrolled in a school and those who are returning to have their
educational program or plan reviewed and revised annually. This
generally would include a determination of the special education,
related services, supplementary aids and services, program
modifications, and supports from school personnel that the student
needs, which under the ADA would be similar to the terms
``modifications'' and ``auxiliary aids and services.'' However, once
the school is on notice that the student has a disability and requires
access because of the disability, those processes and procedures cannot
be used to delay or avoid compliance with the time frames set forth in
proposed Sec. 35.201(f)(1) through (f)(4). For example, if a school
knows that a student who is blind is enrolled at the school for the
first time over the summer, the school is then on notice that, in
accordance with proposed
[[Page 51976]]
Sec. 35.201(f)(1), the content on the school's password-protected
website for the class or course to which the school assigns the student
must be accessible in compliance with the requirements of proposed
Sec. 35.200 by the date the term begins, regardless of the timeframes
for evaluation or the review or development of an Individualized
Education Program or section 504 Plan.
As in the postsecondary context, the Department believes that these
exceptions and limitations strike a proper balance of providing
necessary and timely access to class or course content, while not
imposing burdens where class or course content is currently only used
by a population of students and parents without relevant disabilities,
but it welcomes public feedback on whether alternative approaches might
strike a more appropriate balance.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 36: How difficult would it be for public elementary and
secondary schools to comply with this rule in the absence of this
exception?
Question 37: What would the impact of this exception be on people
with disabilities?
Question 38: How do elementary and secondary schools communicate
general information and class- or course-specific information to
students and parents?
Question 39: The proposed exception and its limitations are
confined to content on a password-protected or otherwise secured
website for students enrolled, or parents of students enrolled, in a
specific class or course. Do public elementary or secondary schools
combine and make available content for all students in a particular
grade or certain classes (e.g., all 10th-graders in a school taking
chemistry in the same semester) using a single password-protected
website and, if so, should such content be included in the exception?
Question 40: Do elementary and secondary schools have a system
allowing a parent with a disability to provide notice of their need for
accessible class or course content?
Question 41: On average, how much content and what type of content
do password-protected websites of public elementary or secondary school
courses contain? Is there content posted by students or parents? Should
content posted by students or parents be required to be accessible and,
if so, how long would it take a public elementary or secondary school
to make it accessible?
Question 42: How long would it take to make class or course content
available on a public entity's password-protected or otherwise secured
website for the particular class or course accessible, and does this
vary based on the type of course? Do parents and students need access
to class or course content before the first day of class? How much
delay in accessing online class or course content can a student
reasonably overcome in order to have an equal opportunity to succeed in
a course, and does the answer change depending on the point in the
academic term that the delay occurs?
Question 43: To what extent do public elementary or secondary
schools use or offer students or parents mobile apps to enable access
to password-protected class or course content? Should the Department
apply the same exceptions and limitations to the exceptions under
proposed Sec. 35.201(f) and (f)(1)-(4), respectively, to mobile apps?
Question 44: Should the Department consider an alternative
approach, such as requiring that all newly posted course content be
made accessible on an expedited timeframe, while adopting a later
compliance date for remediating existing content?
Individualized, Password-Protected Documents
In proposed Sec. 35.201(g), the Department is considering an
exception to the accessibility requirements of proposed Sec. 35.200
for web-based ``[c]onventional electronic documents that are: (1) about
a specific individual, their property, or their account; and (2)
password-protected or otherwise secured.''
Many public entities use the web to provide access to digital
versions of documents for their customers, constituents, and other
members of the public. For example, some public utility companies
provide a website where customers can log in and view a PDF version of
their latest bill. Similarly, many public hospitals offer a virtual
platform where healthcare providers can send digital versions of test
results and scanned documents to their patients. The Department
anticipates that a public entity could have many such documents. The
Department also anticipates that making conventional electronic
documents accessible in this context may be difficult for public
entities, and that in many instances, the individuals who are entitled
to view a particular individualized document will not need an
accessible version. However, some public entities might be able to make
some types of documents accessible relatively easily after they make
the template they use to generate these individualized documents
accessible. To help better understand whether these assumptions are
accurate, the Department asks questions for public comment below about
what kinds of individualized, conventional electronic documents public
entities make available, how public entities make these documents
available to individuals, and what experiences individuals have had in
accessing these documents.
This proposed exception is expected to reduce the burdens on public
entities. The Department expects that making such documents accessible
for every individual, regardless of whether they need such access,
could be too burdensome and would not deliver the same benefit to the
public as a whole as if the public entity were to focus on making other
types of web content accessible. The Department expects that it would
generally be more impactful for public entities to focus resources on
making documents accessible for those individuals who actually need the
documents to be accessible. It is the Department's understanding that
making conventional electronic documents accessible is generally a more
time- and resource- intensive process than making other types of web
content accessible. As discussed below, public entities must still
provide accessible versions of individualized, password-protected
conventional electronic documents in a timely manner when those
documents pertain to individuals with disabilities. This approach is
consistent with the broader title II regulatory framework. For example,
public utility companies are not required to provide accessible bills
to all customers. Instead, the companies need only provide accessible
bills to those customers who need them because of a disability.
This exception is limited to ``conventional electronic documents''
as defined in proposed Sec. 35.104. This exception would, therefore,
not apply in a case where a public entity makes individualized
information available in formats other than a conventional electronic
document. For example, if a public utility makes individualized bills
available on a password-protected web platform as HTML content (rather
than a PDF), that content would not be subject to this exception. Such
bills, therefore, would need to be made accessible in accordance with
proposed Sec. 35.200. On the other hand, if a public entity makes
individualized bills
[[Page 51977]]
available on a password-protected web platform in PDF form, that
content would be excepted from the accessibility requirements of
proposed Sec. 35.200, subject to the limitation discussed in further
detail below.
This exception also only applies when the content is individualized
for a specific person or their property or account. Examples of
individualized documents include medical records or notes about a
specific patient, receipts for purchases (like a parent's receipt for
signing a child up for a recreational sports league), utility bills
concerning a specific residence, or Department of Motor Vehicles
records for a specific person or vehicle. Content that is broadly
applicable or otherwise for the general public (i.e., not
individualized) is not subject to this exception. For instance, a PDF
notice that explains an upcoming rate increase for all utility
customers and is not addressed to a specific customer would not be
subject to this exception. Such a general notice would not be subject
to this exception even if it were attached to or sent with an
individualized letter, like a bill, that is addressed to a specific
customer.
Finally, this exception applies only to password-protected or
otherwise secured content. Content may be otherwise secured if it
requires some process of authentication or login to access the content.
Unless subject to another exception, conventional electronic documents
that are on a public entity's general, public web platform would not be
excepted.
This proposed exception for individualized, password-protected
conventional electronic documents has certain limitations. While the
exception is meant to alleviate the burden on public entities of making
all individualized, password-protected or otherwise secured
conventional electronic documents generally accessible, people with
disabilities must still be able to access information from documents
that pertain to them. An accessible version of these documents must be
provided in a timely manner.\127\ A public entity might also need to
make reasonable modifications to ensure that a person with a disability
has equal access to its services, programs, or activities.\128\ For
example, if a person with a disability requests access to an
inaccessible bill from a county hospital, the hospital may need to
extend the payment deadline and waive any late fees if the hospital
does not provide the bill in an accessible format in sufficient time
for the person to review the bill before payment is due.
---------------------------------------------------------------------------
\127\ See 28 CFR 35.160(b)(2).
\128\ See 28 CFR 35.130(b)(7)(i).
---------------------------------------------------------------------------
As in other situations involving a public entity's effective
communication obligations--for example, when providing an American Sign
Language interpreter--this exception and its accompanying limitation
would also apply to the parent, spouse, or companion of the person
receiving the public entity's services in appropriate
circumstances.\129\
---------------------------------------------------------------------------
\129\ See ADA Requirements: Effective Communication, U.S. Dep't
of Just. (updated Feb. 28, 2020), https://www.ada.gov/effective-comm.htm [https://perma.cc/W9YR-VPBP].
---------------------------------------------------------------------------
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 45: What kinds of individualized, conventional electronic
documents do public entities make available and how are they made
available (e.g., on websites or mobile apps)? How difficult would it be
to make such documents accessible? How do people with disabilities
currently access such documents?
Question 46: Do public entities have adequate systems for receiving
notification that an individual with a disability requires access to an
individualized, password-protected conventional electronic document?
What kinds of burdens do these notification systems place on
individuals with disabilities and how easy are these systems to access?
Should the Department consider requiring a particular system for
notification or a particular process or timeline that entities must
follow when they are on notice that an individual with a disability
requires access to such a document?
Question 47: What would the impact of this exception be on people
with disabilities?
Question 48: Which provisions of this rule, including any
exceptions (e.g., the exceptions for individualized, password-protected
conventional electronic documents and content posted by a third party),
should apply to mobile apps?
Sec. 35.202 Conforming Alternate Versions
Generally, to meet the WCAG 2.1 standard, a web page must satisfy
one of the defined levels of conformance--in the case of this proposed
rule, Level AA.\130\ However, WCAG 2.1 allows for the creation of a
``conforming alternate version,'' a separate web page that is
accessible, up-to-date, contains the same information and functionality
as the inaccessible web page, and can be reached via a conforming page
or an accessibility-supported mechanism.\131\ The ostensible purpose of
a ``conforming alternate version'' is to provide individuals with
relevant disabilities access to the information and functionality
provided to individuals without relevant disabilities, albeit via a
separate vehicle.
---------------------------------------------------------------------------
\130\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/#cc1 [https://perma.cc/ZL6N-VQX4].
\131\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Conforming Alternate Version (June 5, 2018), https://www.w3.org/TR/WCAG21/#dfn-conforming-alternate-version [https://perma.cc/5NJ6-UZPV].
---------------------------------------------------------------------------
Having direct access to an accessible web page provides the best
user experience for many individuals with disabilities, and it may be
difficult for public entities to reliably maintain conforming alternate
versions, which must be kept up to date. Accordingly, the W3C[supreg]
explains that providing a conforming alternate version of a web page is
intended to be a ``fallback option for conformance to WCAG and the
preferred method of conformance is to make all content directly
accessible.'' \132\ However, WCAG 2.1 does not explicitly limit the
circumstances under which an entity may choose to create a conforming
alternate version of a web page instead of making the web page directly
accessible.
---------------------------------------------------------------------------
\132\ See W3C[supreg], Understanding Conformance (last updated
Dec. 24, 2022), https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/Q2XU-K4YY].
---------------------------------------------------------------------------
The Department is concerned that WCAG 2.1 can be interpreted to
permit the development of two separate websites--one for individuals
with relevant disabilities and another for individuals without relevant
disabilities--even when doing so is unnecessary and when users with
disabilities would have a better experience using the main web page.
This segregated approach is concerning and appears inconsistent with
the ADA's core principles of inclusion and integration.\133\ The
Department is also concerned that the creation of separate websites for
individuals with disabilities may, in practice, result in unequal
access to information and
[[Page 51978]]
functionality. However, as the W3C[supreg] explains, certain limited
circumstances may warrant the use of conforming alternate versions of
web pages. For example, a conforming alternate version of a web page
may be necessary when a new, emerging technology is used on a web page,
but the technology is not yet capable of being made accessible, or when
a website owner is legally prohibited from modifying the web
content.\134\
---------------------------------------------------------------------------
\133\ See, e.g., 42 U.S.C. 12101(a)(2) (finding that ``society
has tended to isolate and segregate individuals with
disabilities''); 28 CFR 35.130(b)(1)(iv) (stating that public
entities generally may not ``[p]rovide different or separate aids,
benefits, or services to individuals with disabilities . . . than is
provided to others unless such action is necessary[.]''); 35.130(d)
(requiring that public entities administer services, programs, and
activities in ``the most integrated setting appropriate'').
\134\ See W3C[supreg], Understanding WCAG 2.0 (Oct. 7, 2016),
https://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-conforming-alt-versions-head [https://perma.cc/DV5L-RJUG].
---------------------------------------------------------------------------
Due to the concerns about user experience, segregation of users
with disabilities, unequal access to information, and maintenance
burdens discussed above, the Department is proposing to adopt a
slightly different approach to ``conforming alternate versions'' than
that provided under WCAG 2.1. Instead of permitting entities to adopt
``conforming alternate versions'' whenever they believe this is
appropriate, proposed Sec. 35.202 makes it clear that use of
conforming alternate versions of websites and web content to comply
with the Department's proposed requirements in Sec. 35.200 is
permissible only where it is not possible to make websites and web
content directly accessible due to technical limitations (e.g.,
technology is not yet capable of being made accessible) or legal
limitations (e.g., web content is protected by copyright). Conforming
alternate versions should be used rarely--when it is truly not possible
to make the content accessible for reasons beyond the public entity's
control. For example, a conforming alternate version would not be
permissible due to technical limitations just because a town's web
developer lacked the knowledge or training needed to make content
accessible. By contrast, the town could use a conforming alternate
version if its website included a new type of technology that it is not
yet possible to make accessible, such as a specific kind of immersive
virtual reality environment. Similarly, a town would not be permitted
to claim a legal limitation because its general counsel failed to
approve contracts for a web developer with accessibility experience.
Instead, a legal limitation would apply when the inaccessible content
itself could not be modified for legal reasons specific to that
content, such as lacking the right to alter the content or needing to
maintain the content as it existed at a particular time due to pending
litigation. The Department believes this approach is appropriate
because it ensures that, whenever possible, people with disabilities
have access to the same web content that is available to people without
disabilities. However, proposed Sec. 35.202 does not prohibit public
entities from providing alternate versions of web pages in addition to
their accessible main web page to possibly provide users with certain
types of disabilities a better experience.
In addition to allowing conforming alternate versions to be used
where it is not possible to make websites and web content directly
accessible due to technical or legal limitations, this proposed
rulemaking also incorporates general limitations if public entities can
demonstrate that full compliance with proposed Sec. 35.200 would
result in a fundamental alteration in the nature of a service, program,
or activity or in undue financial and administrative burdens.\135\ If
an action would result in such an alteration or such burdens, a public
entity shall take any other action that would not result in such an
alteration or such burdens but would nevertheless ensure that
individuals with disabilities receive the benefits or services provided
by the public entity to the maximum extent possible.\136\ One way in
which public entities could fulfill their obligation to provide the
benefits or services to the maximum extent possible, in the rare
instance when they can demonstrate that full compliance would result in
a fundamental alteration or undue burden, is through creating
conforming alternate versions.
---------------------------------------------------------------------------
\135\ See proposed Sec. 35.204.
\136\ See id.
---------------------------------------------------------------------------
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 49: Would allowing conforming alternate versions due to
technical or legal limitations result in individuals with disabilities
receiving unequal access to a public entity's services, programs, and
activities?
Sec. 35.203 Equivalent Facilitation
Proposed Sec. 35.203 provides that nothing prevents a public
entity from using designs, methods, or techniques as alternatives to
those prescribed in the proposed regulation, provided that such
alternatives result in substantially equivalent or greater
accessibility and usability. The 1991 and 2010 ADA Standards for
Accessible Design both contain an equivalent facilitation
provision.\137\ However, for purposes of proposed subpart H, the reason
for allowing for equivalent facilitation is to encourage flexibility
and innovation by public entities while still ensuring equal or greater
access to web and mobile content. Especially in light of the rapid pace
at which technology changes, this proposed provision is intended to
clarify that public entities can use methods or techniques that provide
equal or greater accessibility than this proposed rule would require.
For example, if a public entity wanted to conform its website or mobile
app to WCAG 2.1 Level AAA--which includes all the Level AA requirements
plus some additional requirements for even greater accessibility--this
provision makes clear that the public entity would be in compliance
with this rule. A public entity could also choose to comply with this
rule by conforming its website to WCAG 2.2 or WCAG 3.0, so long as the
version and conformance level of those guidelines that the entity
selects includes all of the WCAG 2.1 Level AA requirements. The
Department believes that this proposed provision offers needed
flexibility for entities to provide usability and accessibility that
meet or exceed what this rule would require as technology continues to
develop. The responsibility for demonstrating equivalent facilitation
rests with the public entity.
---------------------------------------------------------------------------
\137\ See 28 CFR pt. 36, app. D, at 1000 (1991); 36 CFR pt.
1191, app. B at 329.
---------------------------------------------------------------------------
Sec. 35.204 Duties
Section 35.204 sets forth the general limitations on the
obligations under subpart H. Proposed Sec. 35.204 provides that in
meeting the accessibility requirements set out in this subpart, a
public entity is not required to take any action that would result in a
fundamental alteration in the nature of a service, program, or activity
or in undue financial and administrative burdens. These proposed
limitations on a public entity's duty to comply with the proposed
regulatory provisions mirror the fundamental alteration and undue
burden compliance limitations currently provided in the title II
regulation in 28 CFR 35.150(a)(3) (program accessibility) and 35.164
(effective communication), and the fundamental alteration compliance
limitation currently provided in the title II regulation in 28 CFR
35.130(b)(7) (reasonable modifications in policies, practices, or
procedures). These limitations are thus familiar to public entities.
Generally, the Department believes it would not constitute a
fundamental
[[Page 51979]]
alteration of a public entity's services, programs, or activities to
modify web content or mobile apps to make them accessible, though the
Department seeks the public's input on this view. Moreover, like the
undue burden and fundamental alteration limitations in the title II
regulation referenced above, proposed Sec. 35.204 does not relieve a
public entity of all obligations to individuals with disabilities.
Although a public entity under this proposed rule is not required to
take actions that would result in a fundamental alteration in the
nature of a service, program, or activity or in undue financial and
administrative burdens, it nevertheless must comply with the
requirements of this subpart to the extent that compliance does not
result in a fundamental alteration or undue financial and
administrative burdens. For instance, a public entity might determine
that full WCAG 2.1 Level AA compliance would result in a fundamental
alteration or undue financial and administrative burdens. However, this
same public entity must then determine whether it can take any other
action that would not result in such an alteration or such burdens, but
would nevertheless ensure that individuals with disabilities receive
the benefits or services provided by the public entity to the maximum
extent possible. To the extent that the public entity can, it must do
so. This may include the public entity's bringing its web content into
compliance with some of the WCAG 2.1 Level A or Level AA success
criteria.
It is the Department's view that most entities that choose to
assert a claim that full compliance with the proposed web or mobile app
accessibility requirements would result in undue financial and
administrative burdens will be able to attain at least partial
compliance. The Department believes that there are many steps a public
entity can take to comply with WCAG 2.1 that should not result in undue
financial and administrative burdens, depending on the particular
circumstances.
In determining whether an action would result in undue financial
and administrative burdens, all of a public entity's resources
available for use in the funding and operation of the service, program,
or activity should be considered. The burden of proving that compliance
with proposed Sec. 35.204 would fundamentally alter the nature of a
service, program, or activity, or would result in undue financial and
administrative burdens, rests with the public entity. As the Department
has consistently maintained since promulgation of the title II
regulation in 1991, the decision that compliance would result in a
fundamental alteration or impose undue burdens must be made by the head
of the public entity or their designee, and must be memorialized with a
written statement of the reasons for reaching that conclusion.\138\ The
Department has always recognized the difficulty public entities have in
identifying the official responsible for this determination, given the
variety of organizational structures within public entities and their
components.\139\ The Department has made clear that ``the determination
must be made by a high level official, no lower than a Department head,
having budgetary authority and responsibility for making spending
decisions.'' \140\
---------------------------------------------------------------------------
\138\ 28 CFR 35.150(a)(3), 35.164.
\139\ 28 CFR pt. 35, app. B, at 708 (2022).
\140\ Id.
---------------------------------------------------------------------------
Where a public entity cannot bring web content or a mobile app into
compliance without a fundamental alteration or an undue burden, it must
take other steps to ensure that individuals with disabilities receive
the benefits or services provided by the public entity to the maximum
extent possible.
Once a public entity has complied with the web or mobile app
accessibility requirements set forth in subpart H, it is not required
by title II of the ADA to make further modifications to its web or
mobile app content to accommodate an individual who is still unable to
access, or does not have equal access to, the web or mobile app content
due to their disability. However, it is important to note that
compliance with this ADA title II rule will not alleviate title II
entities of their distinct employment-related obligations under title I
of the ADA. The Department realizes that the proposed rule is not going
to meet the needs of and provide access to every individual with a
disability, but believes that setting a consistent and enforceable web
accessibility standard that meets the needs of a majority of
individuals with disabilities will provide greater predictability for
public entities, as well as added assurance of accessibility for
individuals with disabilities.
Fully complying with the web and mobile app accessibility
requirements set forth in subpart H means that a public entity is not
required by title II of the ADA to make any further modifications to
its web or mobile app content. This is consistent with the approach the
Department has taken in the context of physical accessibility, where a
public entity is not required to exceed the applicable design
requirements of the ADA Standards if certain wheelchairs or other
power-driven mobility devices exceed those requirements.\141\ However,
if an individual with a disability, on the basis of disability, cannot
access or does not have equal access to a service, program, or activity
through a public entity's web content or mobile app that conforms to
WCAG 2.1 Level AA, the public entity still has an obligation to provide
the individual an alternative method of access to that service,
program, or activity unless the public entity can demonstrate that
alternative methods of access would result in a fundamental alteration
in the nature of a service, program, or activity or in undue financial
and administrative burdens.\142\ Thus, just because an entity is in
full compliance with this rule's web or mobile app accessibility
standard does not mean it has met all of its obligations under the ADA
or other applicable laws. Even though no further changes to a public
entity's web or mobile app content are required by title II of the ADA,
a public entity must still take other steps necessary to ensure that an
individual with a disability who, on the basis of disability, is unable
to access or does not have equal access to the service, program, or
activity provided by the public entity through its accessible web
content or mobile app can obtain access through other effective means.
The entity must still satisfy its general obligations to provide
effective communication, reasonable modifications, and an equal
opportunity to participate in or benefit from the entity's services
using methods other than its website or mobile app.\143\ Of course, an
entity may also choose to further modify its web or mobile app content
to make that content more accessible or usable than this subpart
requires.
---------------------------------------------------------------------------
\141\ See 28 CFR pt. 35, app. A, at 626 (2022).
\142\ See, e.g., 28 CFR 35.130(b)(1)(ii), (b)(7), 35.160.
\143\ See 28 CFR 35.130(b)(1)(ii), (b)(7), 35.160.
---------------------------------------------------------------------------
The public entity must determine on a case-by-case basis how best
to accommodate those individuals who cannot access the service,
program, or activity provided through the public entity's fully
compliant web content or mobile app. A public entity should refer to 28
CFR 35.160 (effective communication) to determine its obligations to
provide individuals with disabilities with the appropriate auxiliary
aids and services necessary to afford them an equal opportunity to
participate in, and enjoy the benefits of, the public entity's service,
program, or activity. A public entity should refer to 28 CFR
35.130(b)(7) (reasonable modifications) to determine its
[[Page 51980]]
obligations to provide reasonable modifications in policies, practices,
or procedures to avoid discrimination on the basis of disability. It is
helpful to provide individuals with disabilities with information about
how to obtain the modifications or auxiliary aids and services they may
need. The Department therefore strongly recommends that the public
entity provide notice to the public on how an individual who cannot use
the web content or mobile app because of a disability can request other
means of effective communication or reasonable modifications in order
to access the public entity's services, programs, or activities that
are being provided through the web content or mobile app. The
Department also strongly recommends that the public entity provide an
accessibility statement that tells the public how to bring web or
mobile app accessibility problems to the public entity's attention, and
that public entities consider developing and implementing a procedure
for reviewing and addressing any such issues raised. For example, a
public entity is encouraged to provide an email address, accessible
link, accessible web page, or other accessible means of contacting the
public entity to provide information about issues individuals with
disabilities may encounter accessing web or mobile app content or to
request assistance.\144\ Providing this information will help public
entities to ensure that they are satisfying their obligations to
provide equal access, effective communication, and reasonable
modifications.
---------------------------------------------------------------------------
\144\ See W3C[supreg], Developing an Accessibility Statement
(Mar. 11, 2021), https://www.w3.org/WAI/planning/statements/
[https://perma.cc/85WU-JTJ6].
---------------------------------------------------------------------------
V. Additional Issues for Public Comment
A. Measuring Compliance
As discussed above, the Department is proposing to adopt specific
standards for public entities to use to ensure that their web content
and mobile apps are accessible to individuals with disabilities.
Proposed Sec. 35.200(a) requires public entities to ensure that any
web content and mobile apps that they make available to members of the
public or use to offer services, programs, and activities to members of
the public are readily accessible to and usable by individuals with
disabilities. Proposed Sec. 35.200(b) sets forth the specific
technical requirements in WCAG 2.1 Level AA with which public entities
must comply unless compliance results in a fundamental alteration in
the nature of a service, program, or activity or undue financial and
administrative burdens. Now that the Department is proposing requiring
public entities to comply with a specific technical standard for web
accessibility, it seeks to craft a framework for determining when an
entity has complied with that standard. The framework will ensure the
full and equal access to which individuals with disabilities are
entitled, while setting forth obligations that will be achievable for
public entities.
1. Existing Approaches to Defining and Measuring Compliance
a. Federal and International Approaches
The Department is aware of two Federal agencies that have
implemented requirements for complying with technical standards for web
accessibility. Each agency has taken a different approach to defining
what it means to comply with its regulation. As discussed above, for
Federal agency websites covered by section 508, the Access Board
requires conformance with WCAG 2.0 Level A and Level AA.\145\ In
contrast, in its regulation on accessibility of air carrier websites,
the Department of Transportation took a tiered approach that did not
require all web content to conform to a technical standard before the
first compliance date.\146\ Instead, the Department of Transportation
required those web pages associated with ``core air travel services and
information'' to conform to a technical standard first, while other
types of content could come into conformance later.\147\ The Department
of Transportation also required air carriers to consult with members of
the disability community to test, and obtain feedback about, the
usability of their websites.\148\
---------------------------------------------------------------------------
\145\ 36 CFR 1194.1; id. part 1194, app. A (E205.4).
\146\ 14 CFR 382.43(c)(1).
\147\ Id.
\148\ Id. 382.43(c)(2).
---------------------------------------------------------------------------
International laws appear to have taken different approaches to
evaluating compliance, though it is unclear which, if any, would be
feasible within the system of government in the United States and the
Department's authority under the ADA. For example, the European Union
has crafted a detailed monitoring methodology that specifies protocols
for member States to sample, test, and report on accessibility of
government websites and mobile apps.\149\ Canada has established a
reporting framework for the specific Federal departments covered by its
web accessibility standard and may impose a range of corrective
actions, depending on how conformant a website is with a technical
standard, measured as a percentage.\150\ New Zealand has developed a
self-assessment methodology for government agencies that combines
automated and manual testing and requires agencies to conduct a
detailed risk assessment and develop a plan for addressing
nonconformance over time.\151\ In the United Kingdom, a government
agency audits a sample of public sector websites and mobile apps (i.e.,
websites and mobile apps of central government, local government
organizations, some charities, and some other non-governmental
organizations) every year, using both manual and automated testing,
following a priority order for auditing that is based on the ``social
impact (for example size of population covered, or site or service
usage) and complaints received.'' \152\ The auditing agency then sends
a report to the public entity, requires the entity to fix accessibility
issues within 12 weeks, and refers the matter to an enforcement agency
after that time frame has passed and the website or app has been
retested.\153\
---------------------------------------------------------------------------
\149\ Commission Implementing Decision (EU) 2018/1524 (Dec. 10,
2018), https://eur-lex.europa.eu/eli/dec_impl/2018/1524/oj [https://perma.cc/5M7B-SVP9].
\150\ Government of Canada, Standard on Web Accessibility (Aug.
1, 2011), https://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=23601§ion=html [https://perma.cc/ZU5D-CPQ7].
\151\ New Zealand Government, 2017 Web Standards Self-
Assessments Report (July 2018), https://www.digital.govt.nz/dmsdocument/97-2017-web-standards-self-assessments-report/html
[https://perma.cc/3TQ3-2L9L]; New Zealand Government, Web Standards
Risk Assessment (Oct. 19, 2020), https://www.digital.govt.nz/standards-and-guidance/nz-government-web-standards/risk-assessment/
[https://perma.cc/N3GJ-VK7X]; New Zealand Government, About the Web
Accessibility Standard (Mar. 3, 2022), https://www.digital.govt.nz/standards-and-guidance/nz-government-web-standards/web-accessibility-standard-1-1/about-2/ [https://perma.cc/GPR4-QJ29].
\152\ United Kingdom, Understanding accessibility requirements
for public sector bodies (Aug. 22, 2022), https://www.gov.uk/guidance/accessibility-requirements-for-public-sector-websites-and-apps; United Kingdom, Public sector website and mobile application
accessibility monitoring (Nov. 1, 2022), https://www.gov.uk/guidance/public-sector-website-and-mobile-application-accessibility-monitoring. A Perma archive link was unavailable for these
citations.
\153\ United Kingdom, Public sector website and mobile
application accessibility monitoring (Dec. 6, 2021), https://www.gov.uk/guidance/public-sector-website-and-mobile-application-accessibility-monitoring. A Perma archive link was unavailable for
this citation.
---------------------------------------------------------------------------
b. State Governments' Approaches
Within the United States, different public entities have taken
different approaches to measuring compliance with a technical standard
under State laws. For example, Florida,\154\
[[Page 51981]]
Illinois,\155\ and Massachusetts \156\ seem to simply require
conformance, without specifying how compliance will be measured or how
entities can demonstrate compliance with this requirement. California
requires the director of each State agency to certify compliance with
technical standards and post a certification form on the agency's
website.\157\ California also provides assessment checklists for its
agencies and guidelines for sampling and testing, including
recommending that agencies use analytics data to conduct thorough
testing on frequently used pages.\158\ Minnesota requires compliance
with a technical standard, provides accessibility courses and other
resources, and notes the importance of both automated and manual
testing; it also states that ``[f]ew systems are completely
accessible,'' and that ``[t]he goal is continuous improvement.'' \159\
Texas law requires State agencies to, among other steps, comply with a
technical standard, conduct tests with one or more accessibility
validation tools, establish an accessibility policy that includes
criteria for compliance monitoring and a plan for remediation of
noncompliant items, and establish goals and progress measurements for
accessibility.\160\ Texas has also developed an automated accessibility
scanning tool and offers courses on web accessibility.\161\
---------------------------------------------------------------------------
\154\ Fla. Stat. 282.603 (2023).
\155\ 30 Ill. Comp. Stat. 587 (2023); Illinois Information
Technology Accessibility Act (Mar. 18, 2022), https://www.dhs.state.il.us/page.aspx?item=32765. A Perma archive link was
unavailable for the second citation.
\156\ Commonwealth of Massachusetts, Enterprise Information
Technology Accessibility Policy (July 28, 2021), https://www.mass.gov/policy-advisory/enterprise-information-technology-accessibility-policy [https://perma.cc/8293-HXUA].
\157\ Cal. Gov't Code 11546.7.
\158\ Department of Rehabilitation, website Accessibility
Requirements and Assessment Checklists, https://www.dor.ca.gov/Home/WebRequirementsAndAssessmentChecklists [https://perma.cc/JAS9-Q343].
\159\ Minnesota IT Services, Guidelines for Accessibility and
Usability of Information Technology Standard (Apr. 17, 2018),
https://mn.gov/mnit/assets/accessibility-guidelines-2018_tcm38-336072.pdf [https://perma.cc/Q9P5-NGMT].
\160\ 1 Tex. Admin. Code 206.50, 213.21.
\161\ Texas Department of Information Resources, EIR
Accessibility Tools & Training, https://dir.texas.gov/electronic-information-resources-eir-accessibility/eir-accessibility-tools-
training [https://perma.cc/A5LC-ZTST].
---------------------------------------------------------------------------
c. Other Approaches to Defining and Measuring Compliance
The Department understands that businesses open to the public,
which are subject to title III of the ADA, have, like public entities,
taken different approaches to web accessibility. These approaches may
include collecting feedback from users with disabilities about
inaccessible websites or mobile apps or relying on external consultants
to conduct periodic testing and remediation. Other businesses may have
developed detailed internal policies and practices that require
comprehensive automated and manual testing, including testing by people
with disabilities, on a regular basis throughout their digital content
development and quality control processes. Some businesses have also
developed policies that include timelines for remediation of any
accessibility barriers; these policies may establish different
remediation time frames for different types of barriers.
2. Challenges of Defining and Measuring Compliance With This Rule
The Department recognizes that it must move forward with care,
weighing the interests of all stakeholders, so that as accessibility
for individuals with disabilities is improved, innovation in the use of
the web or mobile apps by public entities is not hampered. The
Department appreciates that the dynamic nature of web content and
mobile apps presents unique challenges in measuring compliance. For
example, as discussed further below, this type of content can change
frequently and assessment of conformance can be complex or subjective.
Therefore, the Department is seeking public input on issues concerning
how compliance should be measured, which the Department plans to
address in its final rule.
The Department is concerned that the type of compliance measures it
currently uses in the ADA, such as the one used to assess compliance
with the ADA Standards, may not be practical in the web or mobile app
context. Public entities must ensure that newly designed and
constructed State and local government facilities are in full
compliance with the scoping and technical specifications in the ADA
Standards unless full compliance is structurally impracticable.\162\
The ADA Standards require newly constructed State or local government
buildings to be 100 percent compliant at all times with the applicable
provisions, subject to limited compliance limitations. However, unlike
buildings, public entities' websites and mobile apps are dynamic and
interconnected, and can contain a large amount of complex, highly
technical, varied, and frequently changing content. Accordingly, the
Department is concerned that a compliance measure similar to the one
used in the other area where it has adopted specific technical
standards may not work well for web content or mobile apps.
---------------------------------------------------------------------------
\162\ 28 CFR 35.151(a), (c).
---------------------------------------------------------------------------
If web content or mobile apps are updated frequently, full
conformance with a technical standard after the compliance date may be
difficult or impossible to maintain at all times. The Department is
aware that even when a public entity understands its accessibility
obligations, is committed to maintaining an accessible website, and
intends to conform with WCAG 2.1 Level AA, the dynamic and complex
nature of web content is such that full conformance may not always be
achieved successfully. The Department is seeking public comment about
whether a different framework for measuring compliance may be needed to
address the difficulty that public entities may have in achieving 100
percent conformance with a technical standard, 100 percent of the time.
Though title II does not prohibit isolated or temporary interruptions
in service or access due to maintenance or repairs,\163\ it is possible
that websites or mobile apps could be undergoing maintenance or repair
almost constantly, such that this compliance limitation is not readily
transferrable to web or mobile app accessibility.
---------------------------------------------------------------------------
\163\ See 28 CFR 35.133(b).
---------------------------------------------------------------------------
The Department also appreciates the serious impact that a failure
to comply with WCAG 2.1 Level AA can have on people with disabilities.
For example, if a person who has limited manual dexterity and uses
keyboard navigation is trying to apply for public benefits, and the
``submit'' button on the form is not operable using the keyboard, that
person will not be able to apply independently for benefits online,
even if the rest of the website is fully accessible. A person who is
blind and uses a screen reader may not be able to make an appointment
at a county health clinic if an element of the clinic's appointment
calendar is not coded properly. Nearly all of a public entity's web
content could conform with the WCAG 2.1 Level AA success criteria, but
one instance of nonconformance could still prevent someone from
accessing services on the website. People with disabilities must be
able to access the many important government services, programs, and
activities that are offered through web content and mobile apps on
equal terms, without sacrificing their privacy, dignity, or
independence. The Department's concern about the many barriers to full
and equal participation in civic life that inaccessible web content can
pose for
[[Page 51982]]
people with disabilities is an important motivating factor behind the
Department's decision to propose requiring compliance with a technical
standard. By clarifying what compliance with a technical standard
means, the Department seeks to enhance the impact this requirement will
have on the daily lives of people with disabilities by helping public
entities to understand their obligations, thereby increasing
compliance.
An additional challenge to specifying what it means to comply with
a technical standard for web accessibility is that, unlike the physical
accessibility required by the ADA Standards, which can be objectively
and reliably assessed with one set of tools, different automated
testing tools may provide different assessments of the same website's
accessibility. For example, using different web browsers with different
testing tools or assistive technology can yield different results.
Assessments of a website's or mobile app's accessibility may change
frequently over time as the web content or mobile app changes.
Automated testing tools also may report purported accessibility errors
inaccurately. For example, an automated testing tool may report an
error related to insufficient color contrast because the tool has not
correctly detected the foreground and background colors. These tools
will also provide an incomplete assessment of a website's accessibility
because automated tools cannot assess conformance with certain WCAG
success criteria, such as whether color is being used as the only
visual means of conveying information or whether all functionality of
the content is operable through a keyboard interface.\164\ Additional,
manual testing is required to conduct a full assessment of conformance,
which can take time and often relies on sampling. Furthermore, the
Department understands that a person's experiences of web or mobile app
accessibility may vary depending on what assistive technology or other
types of hardware or software they are using. Accordingly, the
Department is considering what the appropriate measure for determining
compliance with the web and mobile app accessibility requirements
should be.
---------------------------------------------------------------------------
\164\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Use of Color (June 5, 2018), https://www.w3.org/TR/WCAG21/#use-of-color [https://perma.cc/R3VC-WZMY]; W3C[supreg], Web Content
Accessibility Guidelines 2.1, Keyboard Accessible, http://www.w3.org/TR/WCAG21/#keyboard-accessible [https://perma.cc/5A3C-9KK2].
---------------------------------------------------------------------------
The Department believes that a more nuanced definition of
compliance might be appropriate because some instances of
nonconformance with WCAG success criteria may not impede access to the
services, programs, or activities offered through a public entity's web
content or mobile app. For example, even if a county park fails to
provide alt text on an image of the scenic views at the park, a person
who is using a screen reader could still reserve a picnic area
successfully, so long as the website also includes text about any
amenities shown in the photo. If the contrast between the text and
background colors used for permit application instructions deviates by
a few hundredths from the color contrast ratio required by WCAG 2.1
Level AA, most people with low vision will likely still be able to
access those instructions without difficulty. However, in either of
these examples, the web content would be out of conformance with WCAG
2.1 Level AA. If the Department does not establish a more detailed
compliance framework, a person with a disability would have a valid
basis for filing a complaint with the Department, other designated
Federal agencies, or in Federal court about either scenario. This could
expose public entities to extensive litigation risk, while potentially
generating more complaints than the Department, other designated
Federal agencies, or the courts have capacity to resolve, and without
improving access for people with disabilities.
Some may argue that the same risk of allegedly unjustified
enforcement action also exists for some provisions of the ADA
Standards. Yet, the Department believes that, for all of the reasons
described above (including the frequently changing nature of web
content, the technical difficulties inherent in ensuring compliance,
and the potential for differing assessments of compliance), a public
entity's web content and mobile apps may be more likely to be out of
full compliance with WCAG 2.1 Level AA than its buildings are to be out
of compliance with the ADA Standards. Sustained, perfect compliance
with WCAG 2.1 Level AA may be more difficult to achieve on a website
that is updated several times a week and includes thousands of pages of
content than compliance with the ADA Standards is in a town hall that
is renovated once a decade. The Department also believes that slight
deviations from WCAG 2.1 Level AA may be more likely to occur without
having a detrimental impact on access than is the case with the ADA
Standards. Additionally, it may be easier for an aggrieved individual
to find evidence of noncompliance with WCAG 2.1 Level AA than
noncompliance with the ADA Standards, given the availability of many
free testing tools and the fact that public entities' websites can be
accessed from almost anywhere. The Department welcomes public comment
on the accuracy of all of these assumptions, as well as about whether
it is appropriate to consider the impact of nonconformance with a
technical standard when evaluating compliance with the proposed rule.
3. Possible Approaches to Defining and Measuring Compliance With This
Rule
The Department is considering a range of different approaches to
measuring compliance with this proposed rule. First, the Department is
considering whether to require a numerical percentage of conformance
with a technical standard, which could be 100 percent or less. This
percentage could be a simple numerical calculation based on the number
of instances of nonconformance across a website or mobile app, or the
percentage could be calculated by weighting different instances of
nonconformance differently. Weighting could be based on factors like
the importance of the content; the frequency with which the content is
accessed; the severity of the impact of nonconformance on a person's
ability to access the services, programs, or activities provided on the
website; or some other formula. This idea of weighting would not be
unprecedented in the context of the title II regulatory scheme because,
in some circumstances, the existing title II regulation requires
priority to be given to alterations that will provide the greatest
access.\165\ As described above, the Department of Transportation's web
accessibility regulation has, at times, also prioritized the
accessibility of certain content.
---------------------------------------------------------------------------
\165\ See 28 CFR 35.151(b)(4)(iv)(B).
---------------------------------------------------------------------------
However, the Department does not believe that a percentage-based
approach would achieve the purposes of this rule or be feasible to
implement because it may not ensure access and will be difficult to
measure. First, as discussed previously, a percentage-based approach
seems unlikely to ensure access for people with disabilities. Even if
the Department were to require that 95 percent or 99 percent of an
entity's web content or mobile apps conform with WCAG 2.1 (or that all
content or apps conform to 95 percent or 99 percent of the WCAG 2.1
success criteria), the relatively small percentage that does not
conform could still block an individual with a disability from
accessing a service, program, or activity. For example, a
[[Page 51983]]
single critical accessibility error could prevent an individual with a
disability from submitting their application for a business license.
A percentage-based standard is also likely to be difficult to
implement. If the Department adopts a specific formula for calculating
whether a certain percentage-based compliance threshold has been met,
it could be challenging for members of the public and regulated
entities to determine whether web content and mobile apps comply with
this rule. Calculations required to evaluate compliance could become
complex, particularly if the Department were to adopt a weighted or
tiered approach that requires certain types of core content to be fully
accessible, while allowing a lower percentage of accessibility for less
important or less frequently accessed content. People with disabilities
who are unable to use inaccessible parts of a website or mobile app may
have particular difficulty calculating a compliance percentage, because
it could be difficult, if not impossible, for them to correctly
evaluate the percentage of a website or mobile app that is inaccessible
if they do not have full access to the entire website or app. For these
reasons, the Department currently is not inclined to adopt a
percentage-based approach to measuring compliance, though we welcome
public comment on ways that such an approach could be implemented
successfully.
Another possible approach might be to limit an entity's compliance
obligations where nonconformance with a technical standard does not
impact a person's ability to have equal access to services, programs,
or activities offered on a public entity's website or mobile app. For
example, the Department could specify that nonconformance with WCAG 2.1
Level AA does not constitute noncompliance with this part if that
nonconformance does not prevent a person with a disability from
accessing or acquiring the same information, engaging in the same
interactions, performing the same transactions, and enjoying the same
services, programs, and activities that the public entity offers
visitors to its website without relevant disabilities, with
substantially equivalent ease of use. This approach would provide equal
access to people with disabilities, while limiting the conformance
obligations of public entities where technical nonconformance with WCAG
2.1 Level AA does not affect access. If a public entity's compliance
were to be challenged, in order to prevail, the entity would need to
demonstrate that, even though it was technically out of conformance
with one or more of the WCAG 2.1 Level AA success criteria, the
nonconformance had such a minimal impact that this provision applies,
and the entity has therefore met its obligations under the ADA despite
nonconformance with WCAG 2.1.
The Department believes that this approach would have a limited
impact on the experience of people with disabilities who are trying to
use web content or mobile apps for two reasons. First, by its own
terms, the provision would require a public entity to demonstrate that
any nonconformance did not have a meaningful effect. Second, it is
possible that few public entities will choose to rely on such a
provision, because they would prefer to avoid assuming the risk
inherent in this approach to compliance. A public entity may find it
easier to conform to WCAG 2.1 Level AA in full so that it can depend on
that clearly defined standard, instead of attempting to determine
whether any nonconformance could be excused under this provision.
Nonetheless, the Department believes some public entities may find such
a provision useful because it would prevent them from facing the
prospect of failing to comply with the ADA based on a minor technical
error. The Department seeks public comment on all of these assumptions.
The Department also believes such an approach may be logically
consistent with the general nondiscrimination principles of section
508, which require comparable access to information and data,\166\ and
of the ADA's implementing regulation, which require an equal
opportunity to participate in and benefit from services.\167\ The
Department has heard support from the public for ensuring that people
with disabilities have equal access to the same information and
services as people without disabilities, with equivalent ease of use.
The Department is therefore evaluating ways that it can incorporate
this crucial principle into a final rule, while simultaneously ensuring
that the compliance obligations imposed by the final rule will be
attainable for public entities in practice.
---------------------------------------------------------------------------
\166\ See 29 U.S.C. 794d(a)(1)(A).
\167\ See 28 CFR 35.130(b)(1)(ii).
---------------------------------------------------------------------------
Another approach the Department is considering is whether an entity
could demonstrate compliance with this part by affirmatively
establishing and following certain robust policies and practices for
accessibility feedback, testing, and remediation. The Department has
not made any determinations about what policies and practices, if any,
would be sufficient to demonstrate compliance, and the Department is
seeking public comment on this issue. However, for illustrative
purposes only, and to enable the public to better understand the
general approach the Department is considering, assume that a public
entity proactively tested its existing web and mobile app content for
conformance with WCAG 2.1 Level AA using automated testing on a regular
basis (e.g., every 30 days), conducted user testing on a regular basis
(e.g., every 90 days), and tested any new web and mobile app content
for conformance with WCAG 2.1 Level AA before that content was posted
on its website or added to its mobile app. This public entity also
remediated any nonconformance found in its existing web and mobile app
content soon after the test (e.g., within two weeks). An entity that
took these (or similar) steps on its own initiative could be deemed to
have complied with its obligations under the ADA, even if a person with
a disability encountered an access barrier or a particular automated
testing report indicated noncompliance with WCAG 2.1 Level AA. The
public entity would be able to rely on its existing, effectively
working web and mobile app content accessibility testing and
remediation program to demonstrate compliance with the ADA. In a final
rule, the Department could specify that nonconformance with WCAG 2.1
Level AA does not constitute noncompliance with this part if a public
entity has established certain policies for testing the accessibility
of web and mobile app content and remediating inaccessible content, and
the entity can demonstrate that it follows those policies.
This approach would enable a public entity to remain in compliance
with the ADA even if its website or mobile app is not in perfect
conformance with WCAG 2.1 Level AA at all times, if the entity is
addressing any nonconformance within a reasonable period of time. A new
policy that a public entity established in response to a particular
complaint, or a policy that an entity could not demonstrate that it has
a practice of following, would not satisfy such a provision. The
Department could craft requirements for such policies in many different
ways, including by requiring more prompt remediation for nonconformance
with a technical standard that has a more serious impact on access to
services, programs, and activities; providing more detail about what
testing is sufficient (e.g., both automated testing and manual testing,
testing by users with certain types of disabilities); setting shorter
or longer time frames for how often testing
[[Page 51984]]
should occur; setting shorter or longer time frames for remediation; or
establishing any number of additional criteria.
The Department is also considering whether an entity should be
permitted to demonstrate compliance with this rule by showing
organizational maturity--that the organization has a sufficiently
robust program for web and mobile app accessibility. Organizational
maturity models provide a framework for measuring how developed an
organization's programs, policies, and practices are--either as a whole
or on certain topics (e.g., cybersecurity, user experience, project
management, accessibility). The authors of one accessibility maturity
model observe that it can be difficult to know what a successful
digital accessibility program looks like, and they suggest that
maturity models can help assess the proficiency of accessibility
programs and a program's capacity to succeed.\168\ Whereas
accessibility conformance testing evaluates the accessibility of a
particular website or mobile app at a specific point in time,
organizational maturity evaluates whether an entity has developed the
infrastructure needed to produce accessible web content and mobile apps
consistently.\169\ For example, some outcomes that an organization at
the highest level of accessibility maturity might demonstrate include
integrating accessibility criteria into all procurement and contracting
decisions, leveraging employees with disabilities to audit
accessibility, and periodically evaluating the workforce to identify
gaps in accessibility knowledge and training.\170\
---------------------------------------------------------------------------
\168\ See Level Access, The Digital Accessibility Maturity
Model: Introduction to DAMM, https://www.levelaccess.com/the-digital-accessibility-maturity-model-introduction-to-damm/ [https://perma.cc/6K38-FJZU].
\169\ See W3C[supreg], W3C Accessibility Maturity Model, About
the W3C Accessibility Maturity Model (Sept. 6, 2022), https://www.w3.org/TR/maturity-model/ [https://perma.cc/NB29-BDRN].
\170\ See W3C[supreg], W3C Accessibility Maturity Model, Ratings
for Evaluation (Sept. 6, 2022), https://www.w3.org/TR/maturity-model/ [https://perma.cc/W7DA-HM9Z].
---------------------------------------------------------------------------
Existing maturity models for accessibility establish several
different categories of accessibility, which are called domains or
dimensions, then assess which maturity level an organization is at for
each category.\171\
---------------------------------------------------------------------------
\171\ See, e.g., W3C[supreg], W3C Accessibility Maturity Model,
Maturity Model Structure (Sept. 6, 2022), https://www.w3.org/TR/maturity-model/ [https://perma.cc/NB29-BDRN]; Level Access, The
Digital Accessibility Maturity Model: Core Dimensions, https://www.levelaccess.com/the-digital-accessibility-maturity-model-core-dimensions/ [https://perma.cc/C6ZC-K9ZF]; Level Access, The Digital
Accessibility Maturity Model: Maturity Levels, https://www.levelaccess.com/the-digital-accessibility-maturity-model-maturity-levels/ [https://perma.cc/25HH-SLYF].
---------------------------------------------------------------------------
For example, the Office of Management and Budget requires Federal
agencies to assess the maturity of their section 508 programs in the
following domains: acquisition, agency technology life cycles, testing
and validation, complaint management, and training.\172\ At the lowest
level of maturity in each domain, no formal policies, processes, or
procedures have been defined; at the highest level of maturity,
effectiveness in the domain is validated, measured, and tracked.\173\
---------------------------------------------------------------------------
\172\ U.S. Gen. Servs. Admin., Assess your Section 508 program
maturity, https://www.section508.gov/tools/playbooks/technology-accessibility-playbook-intro/play02/ [https://perma.cc/89FM-SJ3H].
\173\ Id.
---------------------------------------------------------------------------
As another example, according to a different digital accessibility
maturity model, if an organization has well-trained, qualified
individuals test all of its technology, and has individuals with
relevant disabilities conduct testing at multiple stages in the
development lifecycle, the organization would meet some of the criteria
to be rated at the fourth level out of five maturity levels in one of
ten dimensions--testing and validation.\174\ The Department seeks
public comment on whether the maturity levels and criteria established
in existing organizational maturity models for digital accessibility
would be feasible for State and local government entities to meet.
---------------------------------------------------------------------------
\174\ Level Access, The Digital Accessibility Maturity Model:
Dimension #7--Testing and Validation, https://www.levelaccess.com/the-digital-accessibility-maturity-model-dimension-7-testing-and-validation/ [https://perma.cc/VU93-3NH4].
---------------------------------------------------------------------------
As with the policy-based approach discussed above, a focus on
organizational maturity would enable a public entity to demonstrate
compliance with the ADA even if the entity's website or mobile app is
not in perfect conformance with WCAG 2.1 Level AA at all times, so long
as the entity can demonstrate sufficient maturity of its digital
accessibility program, which would indicate its ability to quickly
remedy any issues of nonconformance identified. The Department could
define requirements for organizational maturity in many different ways,
including by adopting an existing organizational maturity model in
full, otherwise relying on existing organizational maturity models,
establishing different categories of organizational maturity (e.g.,
training, testing, feedback), or establishing different criteria for
measuring organizational maturity levels in each category. The
Department could also require an entity to have maintained a certain
level of organizational maturity across a certain number of categories
for a specified period of time or require an entity to have improved
its organizational maturity by a certain amount in a specified period
of time.
The Department has several concerns about whether allowing
organizations to demonstrate compliance with this rule through their
organizational maturity will achieve the goals of this rulemaking.
First, this approach may not provide sufficient accessibility for
individuals with disabilities. It is not clear that when State and
local government entities make their accessibility programs more
robust, that will necessarily result in websites and mobile apps that
consistently conform to WCAG 2.1 Level AA. If the Department permits a
lower level of organizational maturity (e.g., level four out of five)
or requires the highest level of maturity in only some categories
(e.g., level five in training), this challenge may be particularly
acute. Second, this approach may not provide sufficient predictability
or certainty for public entities. Organizational maturity criteria may
prove subjective and difficult to measure, so disputes about an
entity's assessments of its own maturity may arise. Third, an
organizational maturity model may be too complex for the Department to
define or for public entities to implement. Some existing models
include as many as ten categories of accessibility, with five levels of
maturity, and more than ten criteria for some levels.\175\ Some of
these criteria are also highly technical and may not be feasible for
some public entities to understand or satisfy (e.g., testing artifacts
are actively updated and disseminated based on lessons learned from
each group; accessibility testing artifacts required by teams are
actively updated and maintained for form and ease of use).\176\ Of
course, a public entity that does not want to use an organizational
maturity model would not need to do so; it could meet its obligations
under the rule by complying with WCAG 2.1 Level AA. But it is unclear
whether this approach will benefit either people with disabilities or
public entities. We seek public
[[Page 51985]]
comment on whether the Department should adopt an approach to
compliance that includes organizational maturity, and how such an
approach could be implemented successfully.
---------------------------------------------------------------------------
\175\ Level Access, Digital Accessibility Maturity Model (DAAM)
Archives, https://www.levelaccess.com/category/damm/ [https://perma.cc/Z683-X9H5].
\176\ Level Access, The Digital Accessibility Maturity Model:
Dimension #7--Testing and Validation, https://www.levelaccess.com/the-digital-accessibility-maturity-model-dimension-7-testing-and-validation/ [https://perma.cc/VU93-3NH4].
---------------------------------------------------------------------------
The Department seeks public comment on how compliance with the web
and mobile app accessibility requirements should be assessed or
measured, including comments on these approaches to measuring
compliance and any alternative approaches it should consider.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 50: What should be considered sufficient evidence to
support an allegation of noncompliance with a technical standard for
purposes of enforcement action? For example, if web content or a mobile
app is noncompliant according to one testing methodology, or using one
configuration of assistive technology, hardware, and software, is that
sufficient?
Question 51: In evaluating compliance, do you think a public
entity's policies and practices related to web and mobile app
accessibility (e.g., accessibility feedback, testing, remediation)
should be considered and, if so, how? For example, should consideration
be given to an entity's effectively working processes for accepting and
addressing feedback about accessibility problems; using automated
testing, manual testing, or testing by people with relevant
disabilities to identify accessibility problems; and remediating any
accessibility problems identified within a reasonable period of time
according to the entity's policies, and if so, how? How would such an
approach impact people with disabilities?
Question 52: If you think a public entity's policies and practices
for receiving feedback on web and mobile app accessibility should be
considered in assessing compliance, what specific policies and
practices for feedback would be effective?
Question 53: If you think a public entity's web and mobile app
accessibility testing policies and practices should be considered in
assessing compliance, what specific testing policies and practices
would be effective? For example, how often should websites and mobile
apps undergo testing, and what methods should be used for testing? If
manual testing is required, how often should this testing be conducted,
by whom, and what methods should be used? Should the Department require
public entities' websites and mobile apps to be tested in consultation
with individuals with disabilities or members of disability
organizations, and, if so, how?
Question 54: If you think a public entity's web and mobile app
accessibility remediation policies and practices should be considered
in assessing compliance, what specific remediation policies and
practices would be effective? Should instances of nonconformance that
have a more serious impact on usability--because of the nature of the
nonconformance (i.e., whether it entirely prevents access or makes
access more difficult), the importance of the content, or otherwise--be
remediated in a shorter period of time, while other instances of
nonconformance are remediated in a longer period of time? How should
these categories of nonconformance be defined and what time frames
should be used, if any?
Question 55: Should a public entity be considered in compliance
with this part if the entity remediates web and mobile app
accessibility errors within a certain period of time after the entity
learns of nonconformance through accessibility testing or feedback? If
so, what time frame for remediation is reasonable? How would allowing
public entities a certain amount of time to remediate instances of
nonconformance identified through testing or feedback impact people
with disabilities?
Question 56: Should compliance with this rule be assessed
differently for web content that existed on the public entity's website
on the compliance date than for web content that is added after the
compliance date? For example, might it be appropriate to allow some
additional time for remediation of content that is added to a public
entity's website after the compliance date, if the public entity
identifies nonconformance within a certain period of time after the
content is added, and, if so, what should the remediation time frame
be? How would allowing public entities a certain amount of time to
remediate instances of nonconformance identified in content added after
the compliance date impact people with disabilities?
Question 57: What policies and practices for testing and
remediating web and mobile app accessibility barriers are public
entities or others currently using and what types of testing and
remediation policies and practices are feasible (or infeasible)? What
types of costs are associated with these testing and remediation
policies?
Question 58: In evaluating compliance, do you think a public
entity's organizational maturity related to web and mobile app
accessibility should be considered and, if so, how? For example, what
categories of accessibility should be measured? How should maturity in
each category be assessed or demonstrated i.e., what should the levels
of organizational maturity be and what should an entity be required to
do to attain each level)? What indicators of organizational maturity
criteria would be feasible for public entities to attain? How would an
approach that assesses organizational maturity for purposes of
demonstrating compliance impact people with disabilities? Would such an
approach be useful for public entities?
Question 59: If you think a public entity's organizational maturity
should be considered in assessing compliance, what level of
organizational maturity would be effective? For example, if an
organizational maturity model has ten categories, should an entity be
required to attain the highest level of maturity in all ten? Should an
entity be required to sustain a particular level of organizational
maturity for a certain length of time?
Question 60: Should a public entity be considered in compliance
with this part if the entity increases its level of organizational
maturity by a certain amount within a certain period of time? If so,
what time frame for improvement is reasonable, and how much should
organizational maturity be required to improve? How would an entity
demonstrate this improvement? How would allowing public entities a
certain amount of time to develop organizational maturity with respect
to accessibility impact people with disabilities? Would requiring
public entities to improve their organizational maturity over time be
effective?
Question 61: Are there any frameworks or methods for defining,
assessing, or demonstrating organizational maturity with respect to
digital accessibility that the Department should consider adopting for
purposes of this rule?
[[Page 51986]]
Question 62: Should the Department address the different level of
impact that different instances of nonconformance with a technical
standard might have on the ability of people with disabilities to
access the services, programs, and activities that a public entity
offers via the web or a mobile app? If so, how?
Question 63: Should the Department consider limiting public
entities' compliance obligations if nonconformance with a technical
standard does not prevent a person with disabilities from accessing the
services, programs, and activities that a public entity offers via the
web or a mobile app? Should the Department consider limiting public
entities' compliance obligations if nonconformance with a technical
standard does not prevent a person with disabilities from accessing the
same information, engaging in the same interactions, and enjoying the
same programs, services, and activities as people without relevant
disabilities, within similar time frames and with substantially
equivalent ease of use? Should the Department consider limiting public
entities' compliance obligations if members of the public with
disabilities who are seeking information or services from a public
entity have access to and use of information and services that is
comparable to that provided to members of the public who are not
individuals with disabilities? How would these limitations impact
people with disabilities?
Question 64: Should the Department adopt percentages of web or
mobile app content that need to be accessible or other similar means of
measuring compliance? Is there a minimum threshold below 100 percent
that is an acceptable level of compliance? If the Department sets a
threshold for compliance, how would one determine whether a website or
mobile app meets that threshold?
Question 65: When assessing compliance, should all instances of
nonconformance be treated equally? Should nonconformance with certain
WCAG 2.1 success criteria, or nonconformance in more frequently
accessed content or more important core content, be given more weight
when determining whether a website or mobile app meets a particular
threshold for compliance?
Question 66: How should the Department address isolated or
temporary noncompliance \177\ with a technical standard and under what
circumstances should noncompliance be considered isolated or temporary?
How should the Department address noncompliance that is a result of
technical difficulties, maintenance, updates, or repairs?
---------------------------------------------------------------------------
\177\ See 28 CFR 35.133(b).
---------------------------------------------------------------------------
Question 67: Are there any local, State, Federal, international, or
other laws or policies that provide a framework for measuring,
evaluating, defining, or demonstrating compliance with web or mobile
app accessibility requirements that the Department should consider
adopting?
VI. Regulatory Process Matters
The Department has examined the likely economic and other effects
of this proposed rule addressing the accessibility of web content and
mobile apps, as required, under applicable Executive Orders,\178\
Federal administrative statutes (e.g., the Regulatory Flexibility
Act,\179\ Paperwork Reduction Act,\180\ and Unfunded Mandates Reform
Act \181\) and other regulatory guidance.\182\
---------------------------------------------------------------------------
\178\ See E.O. 14094, 88 FR 21879 (Apr. 6, 2023); E.O. 13563, 76
FR 3821 (Jan. 21, 2011); E.O. 13272, 67 FR 53461 (Aug. 13, 2002);
E.O. 13132, 64 FR 43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735
(Sept. 30, 1993).
\179\ Regulatory Flexibility Act of 1980 (``RFA''), as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996, 5
U.S.C. 601 et seq.
\180\ Paperwork Reduction Act (``PRA''), 44 U.S.C. 3501 et seq.
\181\ Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et
seq.
\182\ OMB Circular A-4 (Sept. 17, 2003).
---------------------------------------------------------------------------
As discussed previously, the purpose of this proposed regulation is
to revise the regulation implementing title II of the ADA in order to
ensure that the services, programs, or activities offered by State and
local government entities to the public via web content and mobile apps
are accessible to people with disabilities. The Department is proposing
to adopt specific technical standards related to the accessibility of
the web content and mobile apps of State and local government entities
and is specifying proposed dates by which such web content and mobile
apps must meet those standards. This rule is necessary to help public
entities understand how to ensure that people with disabilities will
have equal access to the services, programs, and activities public
entities make available on or through their web content and mobile
apps.
The Department has carefully crafted this proposed regulation to
better ensure the protections of title II of the ADA, while at the same
time doing so in the most economically efficient manner possible. After
assessing the likely costs of this proposed regulation, the Department
has determined that it is a section 3(f)(1) significant regulatory
action within the meaning of Executive Order 12866, as amended by
Executive Order 14094. As such, the Department has undertaken a
Preliminary Regulatory Impact Analysis (``PRIA'') pursuant to Executive
Order 12866. The Department has undertaken a Preliminary Regulatory
Flexibility Analysis as specified in Sec. 603(a) of the Regulatory
Flexibility Act. The results of both of these analyses are summarized
below. Lastly, the Department does not believe that this proposed
regulation will have any impact--significant or otherwise--relative to
the Paperwork Reduction Act, the Unfunded Mandates Reform Act, or the
federalism principles outlined in Executive Order 13132.
A. Preliminary Regulatory Impact Analysis (``PRIA'') Summary
1. Introduction
The Department has prepared a Preliminary Regulatory Impact
Analysis (``PRIA'') for this rulemaking. This PRIA complies with the
requirements of Executive Order 12866, as well as other authorities on
regulatory planning, by providing a robust economic analysis of the
costs and benefits of this rulemaking. It contains a Preliminary
Regulatory Flexibility Analysis (``PRFA''), which is also included in
this summary. The Department contracted with Eastern Research Group
Inc. (``ERG'') to prepare this economic assessment. This summary
provides an overview of the Department's preliminary economic analysis
and key components of the PRIA. The full PRIA will be made available at
https://www.ada.gov/assets/_pdfs/web-pria.pdf.
Requiring State and local government entities' web content and
mobile apps to comply with the WCAG 2.1 Level AA success criteria will
result in costs for State and local government entities to remediate
and maintain their web content and mobile apps in conformance with this
technical standard. The Department believes that most of these costs
will be one-time expenses to remediate existing websites, and that the
rule will not impose as substantial cost burdens in the creation of new
websites, as experts estimate that building accessibility into a
website initially is 3-10 times less expensive than retrofitting an
existing one for accessibility.\183\ Based on a Department analysis of
the web presence of a sample of 227 State and local government
[[Page 51987]]
entities, the Department estimates that a total number of 109,893 State
and local government entity websites and 8,805 State and local
government entity mobile apps will be affected by the rule. These
websites and mobile apps provide services on behalf of and are managed
by 91,489 State and local government entities that will incur these
costs. These costs include one-time costs for familiarization with the
requirements of the rule; testing, remediation, and O&M costs for
websites; testing, remediation, and O&M costs for mobile apps; and
school course remediation costs. The remediation costs include both
time and software components. Initial familiarization, testing, and
remediation costs of the proposed rule occur over the first two or
three years (two years for large governments and three years for small
governments) and are presented in Table 3. Implementation costs accrue
during the first three years of the analysis (the implementation
period) and total $15.8 billion, undiscounted. After the implementation
period, annual O&M costs are $1.8 billion. Annualized costs are
calculated over a 10-year period that includes both this implementation
period and seven years post-implementation. Annualized costs over this
10-year period are estimated at $2.8 billion assuming a 3 percent
discount rate or $2.9 billion assuming a 7 percent discount rate. All
values are presented in 2021 dollars as 2022 data were not yet
available. These costs are summarized in Table 4, Table 5, and Table 6.
Two findings that were notable in the Department's estimations for
accessible course content were that, due to the limitations to the
exceptions for course content, the Department expects that within two
years following implementation virtually all postsecondary courses will
be remediated, and within the first year of implementation virtually
all elementary and secondary classes or courses will be remediated.
---------------------------------------------------------------------------
\183\ Level Access, The Road to Digital Accessibility, https://www.levelaccess.com/the-road-to-digital-accessibility/ [https://perma.cc/4972-J8TA].
---------------------------------------------------------------------------
Benefits will generally accrue to all individuals who access State
and local government entities' web content and mobile apps, and
additional benefits will accrue to individuals with certain types of
disabilities. The WCAG 2.1 Level AA standards primarily benefit
individuals with vision, hearing, cognitive, and manual dexterity
disabilities because WCAG 2.1 is intended to address barriers that
often impede access for people with these disability types. Using 2021
data, the Department estimates that 4.8 percent of adults have a vision
disability, 7.5 percent have a hearing disability, 10.1 percent have a
cognitive disability, and 5.7 percent have a manual dexterity
disability. Due to the incidence of multiple disabilities, the total
share without any of these disabilities is 80.1 percent.
Annual benefits, beginning once the rule is fully implemented,
total $11.4 billion. Because individuals generally prefer benefits
received sooner, future benefits need to be discounted to reflect the
lower value due to the wait to receive them. The Office of Management
and Budget (``OMB'') guidance states that annualized benefits and costs
should be presented using real discount rates of 3 and 7 percent.\184\
Benefits annualized over a 10-year period that includes both three
years of implementation and seven years post-implementation total $9.3
billion per year, assuming a 3 percent discount rate, and $8.9 billion
per year, assuming a 7 percent discount rate. Annual and annualized
monetized benefits of the proposed rule are presented in Table 7, Table
8, and Table 9. There are many additional benefits that have not been
monetized due to data availability. Benefits that cannot be monetized
are discussed qualitatively. Impacts to individuals include increased
independence, increased flexibility, increased privacy, reduced
frustration, decreased reliance on companions, and increased program
participation. This proposed rule will also benefit governments through
increased certainty about what constitutes accessible web content,
potential reduction in litigation, and a larger labor market pool.
---------------------------------------------------------------------------
\184\ See Office of Management and Budget, Circular A-4 (Sept.
17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf [https://perma.cc/7655-M7UF].
---------------------------------------------------------------------------
Comparing annualized costs and benefits, monetized benefits to
society outweigh the costs. A summary of this comparison is presented
in Table 10. Net annualized benefits over the first 10 years post
publication of this rule total $6.5 billion per year using a 3 percent
discount rate and $6.0 billion per year using a 7 percent discount
rate. Additionally, beyond this 10-year period, benefits are likely to
continue to accrue at a greater rate than costs because many of the
costs are upfront costs and benefits tend to have a delay before
beginning to accrue.
To consider the relative magnitude of the estimated costs of this
proposed regulation, the Department also compared the costs to revenues
for public entities. Because the costs for each government entity type
are estimated to be well below 1 percent of revenues, the Department
does not believe the rule will be unduly burdensome or costly for
public entities.\185\ Costs of the rulemaking for each government
entity type are estimated to be well below this 1 percent threshold.
---------------------------------------------------------------------------
\185\ As noted above and as a point of reference, the United
States Small Business Administration advises agencies that a
potential indicator that the impact of a proposed regulation may be
``significant'' is whether the costs exceed 1 percent of the gross
revenues of the entities in a particular sector, although the
threshold may vary based on the particular types of entities at
issue. The Department estimates that the costs of this rulemaking
for each government entity type are far less than 1 percent of
revenues. See Small Bus. Admin., A Guide for Government Agencies:
How to Comply with the Regulatory Flexibility Act 19 (Aug. 2017),
https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH].
---------------------------------------------------------------------------
The Department's economic analysis is discussed more fully in the
complete PRIA. However, the Department will review its findings and
analysis in this summary. Some key portions of the PRIA are also
included here in full to aid in understanding the Department's analysis
and to provide sufficient context for public feedback.
[[Page 51988]]
Table 3--Initial Familiarization, Testing, and Remediation Costs
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.02 $0.90 $5.79 $4.83 $11.44 $3.63 $0.00 $0.56 $27.17
Websites........................ 228.9 742.5 2,363.4 1,342.9 374.4 1,826.1 6.4 1,283.0 8,167.7
Mobile apps..................... 13.7 53.1 93.4 1.3 0.0 379.7 1.2 64.4 606.8
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 5,393.8 5,393.8
Primary and secondary course N/A 47.4 18.5 40.0 N/A 1,059.5 N/A N/A 1,165.4
remediation....................
Third-party website remediation. 6.6 35.8 133.5 77.6 18.0 103.1 0.0 84.7 459.2
-----------------------------------------------------------------------------------------------------------------------
Total....................... 249.2 879.7 2,614.6 1,466.6 403.9 3,372.0 7.6 6,826.4 15,819.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 4--Average Annual Cost After Implementation
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Websites........................ $19.9 $65.1 $215.1 $124.2 $40.5 $164.7 $0.6 $111.7 $741.9
Mobile apps..................... 0.01 0.04 0.03 0.00 0.00 0.21 0.00 0.04 0.33
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 935.7 935.7
Primary and secondary course N/A 4.7 1.9 4.0 N/A 105.9 N/A N/A 116.5
remediation....................
Third-party website remediation. 0.6 3.2 12.1 7.2 1.9 9.2 0.0 7.4 41.6
-----------------------------------------------------------------------------------------------------------------------
Total....................... 20.5 73.1 229.2 135.4 42.5 280.1 0.6 1,054.8 1,836.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 5--10-Year Average Annualized Cost, 3 Percent Discount Rate
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.00 $0.10 $0.66 $0.55 $1.30 $0.41 $0.00 $0.06 $3.09
Websites........................ 38.9 126.4 405.2 231.2 68.4 312.4 1.1 217.9 1,401.5
Mobile apps..................... 1.5 5.9 10.5 0.1 0.0 42.2 0.1 7.2 67.7
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 1,100.9 1,100.9
Primary and secondary course N/A 7.9 3.1 6.7 N/A 176.9 N/A N/A 194.6
remediation....................
Third-party website remediation. 1.1 6.1 22.9 13.4 3.3 17.6 0.0 14.4 78.7
-----------------------------------------------------------------------------------------------------------------------
Total....................... 41.5 146.4 442.3 251.9 73.0 549.6 1.2 1,340.6 2,846.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 6--10-Year Average Annualized Cost, 7 Percent Discount Rate
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.00 $0.12 $0.77 $0.64 $1.52 $0.48 $0.00 $0.07 $3.61
Websites........................ 41.6 135.2 429.6 244.5 71.8 331.8 1.2 233.5 1,489.1
Mobile apps..................... 1.8 6.7 12.0 0.2 0.0 47.7 0.2 8.3 76.9
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 1,097.5 1,097.5
Primary and secondary course N/A 8.0 3.1 6.8 N/A 179.2 N/A N/A 197.1
remediation....................
Third-party website remediation. 1.2 6.5 24.3 14.1 3.4 18.7 0.0 15.4 83.7
-----------------------------------------------------------------------------------------------------------------------
Total....................... 44.6 156.6 469.8 266.1 76.8 577.9 1.3 1,354.8 2,947.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 7--Annual Benefit Once Full Implementation
[Millions]
----------------------------------------------------------------------------------------------------------------
Without
Benefit type Visual Other relevant relevant State and Total
disability disability \a\ disabilities local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users..... $549.6 $751.3 $2,858.5 N/A $4,159.4
[[Page 51989]]
Time savings--new users......... 222.4 695.0 N/A 600.6 1,518.1
Time savings--mobile apps....... 51.5 70.5 268.1 N/A 390.1
Time savings--education......... 693.5 1,205.8 3,157.8 N/A 5,057.1
Educational attainment.......... 7.2 255.6 N/A N/A 262.8
-------------------------------------------------------------------------------
Total benefits.............. 1,524.2 2,978.3 6,284.3 600.6 11,387.5
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
relevant disabilities.''
Table 8--10-Year Average Annualized Benefits, 3 Percent Discount Rate
[Millions]
----------------------------------------------------------------------------------------------------------------
Without
Benefit type Visual Other relevant relevant State and Total
disability disability \a\ disabilities local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users..... $463.6 $633.8 $2,411.6 N/A $3,509.1
Time savings--new users......... 187.6 586.4 N/A 506.7 1,280.7
Time savings--mobile apps....... 43.5 59.4 226.2 N/A 329.1
Time savings--education......... 504.7 878.8 2,307.6 N/A 3,691.1
Educational attainment.......... 13.8 492.4 N/A N/A 506.2
-------------------------------------------------------------------------------
Total benefits.............. 1,213.2 2,650.9 4,945.4 506.7 9,316.3
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
relevant disabilities.''
Table 9--10-Year Average Annualized Benefits, 7 Percent Discount Rate
[Millions]
----------------------------------------------------------------------------------------------------------------
Without
Benefit type Visual Other relevant relevant State and Total
disability disability \a\ disabilities local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users..... $451.4 $617.1 $2,347.7 N/A $3,416.1
Time savings--new users......... 182.7 570.8 N/A 493.3 1,246.8
Time savings--mobile apps....... 42.3 57.9 220.2 N/A 320.4
Time savings--education......... 478.9 834.2 2,191.3 N/A 3,504.4
Educational attainment.......... 12.3 437.2 N/A N/A 449.5
-------------------------------------------------------------------------------
Total benefits.............. 1,167.6 2,517.1 4,759.1 493.3 8,937.2
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
relevant disabilities.''
Table 10--10-Year Average Annualized Comparison of Costs and Benefits
------------------------------------------------------------------------
3% Discount 7% Discount
Benefit type rate rate
------------------------------------------------------------------------
Average annualized costs (millions)..... $2,846.6 $2,947.9
Average annualized benefits (millions).. 9,316.3 8,937.2
Net benefits (millions)................. 6,469.7 5,989.3
Cost-to-benefit ratio................... 0.3 0.3
------------------------------------------------------------------------
2. Baseline Conditions
To estimate the costs and benefits of the proposed rule, baseline
web accessibility of government websites and baseline disability
prevalence need to be considered both in the presence and absence of
the proposed rule over the 10-year analysis period. For these analyses,
the Department assumed that the number of governments would remain
constant over the 10-year horizon for which the Department projects
costs and benefits. This is in line with the trend of total government
units in the United States, which rose by only 19 government units
(representing a 0.02 percent increase) between 2012 and 2017.\186\ The
Department assumes that the total number of government websites scales
with the number of governments, and that the number of government
websites that each government maintains would remain constant for the
10-year period with or without the rule. The Department notes, however,
that if the number of government websites increases over time, both
costs and
[[Page 51990]]
benefits would increase accordingly, and because benefits are estimated
to be larger than costs, this would only create a larger net benefit
for the rule. The Department also assumes constant rates of disability
over the 10-year horizon.\187\ Finally, the ways in which government
websites are used and the types of websites (e.g., Learning Management
Systems and Content Management Systems) are assumed to be constant due
to a lack of data.
---------------------------------------------------------------------------
\186\ U.S. Census Bureau, Census of Governments 2017--Public use
Files (Jan. 2017), https://www.census.gov/data/datasets/2017/econ/gus/public-use-files.html [https://perma.cc/UG79-5MVM]; U.S. Census
Bureau, Census of Governments 2012--Public use Files (Jan. 2012),
https://www.census.gov/data/datasets/2012/econ/gus/public-use-files.html [https://perma.cc/7UPP-H9WN].
\187\ Recent trends in disability prevalence vary across
surveys, with some finding an increase in recent years and others
finding no change. Due to uncertainty, the Department assumed no
change in prevalence rates over the next ten years. U.S. Census
Bureau, 2021 SIPP: Estimates of Disability Prevalence (Aug. 30,
2022), https://www.census.gov/programs-surveys/sipp/tech-documentation/user-notes/2021-usernotes/estim-disabilty-preval.html
[https://perma.cc/6BJB-XX96].
---------------------------------------------------------------------------
Costs to test and remediate websites were estimated based on the
level of effort needed to reach full compliance with WCAG 2.1 Level AA
from the level of observed compliance during the Department's automated
and manual accessibility checking from September 2022 through October
2022. The Department did not feel confident quantifying baseline
conformity with proposed requirements.\188\ Baseline accessibility of
mobile apps and password-protected course content was understood
through literature, which estimated costs to make those materials WCAG
2.1 Level AA compliant, implicitly defining baseline conditions.
---------------------------------------------------------------------------
\188\ Though SortSite does give what percentile a website falls
into as far as accessibility, it does not give a raw ``accessibility
score.''
---------------------------------------------------------------------------
Most literature on current website accessibility has not
historically tested websites against the same sets of standards, so
comparing results from studies over time to find trends in
accessibility is challenging. Additionally, the types of websites
tested, and their associated geographies, tend to vary from study to
study, compounding the difficulty of extracting longitudinal trends in
accessibility. There are, however, some studies that have evaluated the
change in accessibility for the same websites in different time
periods, such as a 2014 paper that continued a study of Alabama website
accessibility from 2002.189 190 That study found almost no
change in accessibility from the previous 2002 study.\191\ Although
most accessibility studies do not take this longitudinal approach,
their conclusions, regardless of the standards against which websites
are checked, are generally that websites are not fully accessible. For
example, a 2006 study found that 98 percent of State home pages did not
meet WCAG 1.0 Level AA guidelines.\192\ Another 2006 study found that
only 18 percent of municipal websites met section 508 standards.\193\
And 14 years later, a 2021 study found that 71 percent of county
websites evaluated did not conform to WCAG 2.0, and the remaining 29
percent only partially conformed to the standards.\194\ Given the
minimal progress in web accessibility over the last 20 years, the
Department does not expect that compliance with WCAG 2.1 Level AA would
improve significantly in the absence of the rule.
---------------------------------------------------------------------------
\189\ Andrew Potter, Accessibility of Alabama Government
websites, 29 Journal of Government Information 303 (2002), https://doi.org/10.1016/S1352-0237(03)00053-4 [https://perma.cc/5W29-YUHK].
\190\ Norman Youngblood, Revisiting Alabama State website
Accessibility, 31 Government Information Quarterly 476 (2014),
https://doi.org/10.1016/j.giq.2014.02.007 [https://perma.cc/PUL4-QUCD].
\191\ Potter (2002) found that 80 percent of State websites did
not pass section 508 standards, and Youngblood (2014) found that 78
percent of those same websites still did not meet section 508
standards 12 years later. Andrew Potter, Accessibility of Alabama
Government websites, 29 Journal of Government Information 303
(2002), https://doi.org/10.1016/S1352-0237(03)00053-4 [https://perma.cc/5W29-YUHK]; Norman Youngblood, Revisiting Alabama State
website Accessibility, 31 Government Information Quarterly 476
(2014), https://doi.org/10.1016/j.giq.2014.02.007 [https://perma.cc/PUL4-QUCD].
\192\ Tanya Goette et al., An Exploratory Study of the
Accessibility of State Government websites, 5 Universal Access in
the Information Society 41 (Apr. 20, 2006), https://link.springer.com/article/10.1007/s10209-006-0023-2 [https://perma.cc/6SD9-KRFT].
\193\ Jennifer S. Evans-Cowley, The Accessibility of Municipal
Government websites, 2 Journal of E-Government 75 (2006), https://www.tandfonline.com/doi/abs/10.1300/J399v02n02_05. A Perma archive
link was unavailable for this citation.
\194\ Yang Bai et al., Accessibility of Local Government
websites: Influence of Financial Resources, County Characteristics
and Local Demographics, 20 Universal Access in the Information
Society 851 (2021), https://link.springer.com/article/10.1007/s10209-020-00752-5 [https://perma.cc/YM6G-Y7TY]. The Department
notes that although these studies discuss State or local government
conformance with the section 508 standards, those standards only
apply to the Federal Government, not to State or local governments.
---------------------------------------------------------------------------
3. Number of Affected Governments and Individuals
The proposed regulation will affect all State and local government
entities \195\ by requiring them to comply with WCAG 2.1 Level AA. The
Department used the 2017 Census of Governments to determine the number
of affected governments, disaggregated by government entity type as
defined by the Census Bureau.\196\ The Department estimates the number
of government entities affected by the proposed rule in Table 11. To
account for differences in government characteristics, the Department
stratified the government entities by population size and analyzed
impacts of the rule to each type of government entity within each
population size category. The Department assumes that the number of
governments would remain constant throughout the 10-year analysis
period with or without the rule.
---------------------------------------------------------------------------
\195\ The PRIA summary and PRFA frequently refer generally to
``governments,'' which is intended to include only State or local
governments covered by this rulemaking.
\196\ U.S. Census Bureau, Census of Governments 2017--Public use
Files (Jan. https://www.census.gov/data/datasets/2017/econ/gus/public-use-files.html [https://perma.cc/UG79-5MVM].
\197\ See Section 2.1, Number of Governments, in the
accompanying PRIA for the Department's methodology.
Table 11--Number of Governments by Government Entity Type \197\
----------------------------------------------------------------------------------------------------------------
Population of
Type of government entity less than Population of Total
50,000 50,000 or more
----------------------------------------------------------------------------------------------------------------
State........................................................... N/A \a\ 51 51
County.......................................................... 2,105 926 3,031
Municipal....................................................... 18,729 766 19,495
Township........................................................ 16,097 156 16,253
Special district................................................ \b\ 38,542 N/A 38,542
School district................................................. 11,443 779 12,222
U.S. territory.................................................. 2 3 5
Public university............................................... \b\ 744 N/A 744
Community college............................................... \b\ 1,146 N/A 1,146
-----------------------------------------------
[[Page 51991]]
Total (no higher education)................................. 86,918 2,681 89,599
-----------------------------------------------
Total (with higher education)........................... 88,808 2,681 91,489
----------------------------------------------------------------------------------------------------------------
\a\ Washington, DC is included as a State for purposes of this table and the following analysis.
\b\ Special district, public university, and community college data do not include population. For these tables,
they are displayed as small.
The Department expects the benefits of this proposed regulation
will accrue to all individuals using State and local government
entities' services, but particularly to those with certain types of
disabilities. WCAG 2.1 Level AA primarily benefits individuals with
vision, hearing, cognitive, and manual dexterity disabilities.\198\ To
identify persons with those disabilities, the Department relied on the
U.S. Census Bureau's Survey of Income and Program Participation
(``SIPP'') for reasons described further in the Department's full
PRIA.\199\
---------------------------------------------------------------------------
\198\ See Section VI.A.5.b of this preamble for further
information.
\199\ See U.S. Census Bureau, Survey of Income and Program
Participation--About this Survey (Aug. 2022), https://www.census.gov/programs-surveys/sipp/about.html [https://perma.cc/Z7UH-6MJ8].
---------------------------------------------------------------------------
Using SIPP 2021 data, as shown in Table 12, the Department
estimates that 4.8 percent of adults have a vision disability, 7.5
percent have a hearing disability, 10.1 percent have a cognitive
disability, and 5.7 percent have a manual dexterity disability. Due to
the incidence of multiple disabilities, the total share without any of
these disabilities is 80.1 percent.\200\
---------------------------------------------------------------------------
\200\ These estimates may miss some individuals due to
underreporting. Some individuals with temporary disabilities may
also not respond in the affirmative and may be missed. We note,
however, that people with temporary disabilities may not always
qualify as having a disability covered by the ADA.
Table 12--Disability Prevalence Counts, SIPP 2021
----------------------------------------------------------------------------------------------------------------
Marginal Marginal
Disability type Prevalence Number prevalence number \a\
rate (%) (millions) rate \a\ (%) (millions)
----------------------------------------------------------------------------------------------------------------
Vision.......................................... 4.8 12.2 4.8 12.2
Hearing......................................... 7.5 19.0 6.1 15.3
Cognitive....................................... 10.1 25.5 6.7 16.9
Manual dexterity................................ 5.7 14.3 2.3 5.7
None of the above............................... 80.1 202.3 80.1 202.3
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau. https://www.census.gov/programs-surveys/sipp/data/datasets/2021-data/2021.html.
\a\ Individuals with multiple qualifying disabilities are counted within the first disability category listed
(e.g., if someone has a cognitive and vision disability, they are included in the vision disability prevalence
rate).
4. Compliance Cost Analysis
For State and local Government entities to comply with the proposed
rule, they will have to invest time and resources to make inaccessible
web and mobile app content accessible. Based on a review of the
accessibility of a sample of State and local government entities'
websites taken between September and November 2022, the Department has
found that most government websites and mobile apps will require
accessibility testing and remediation because they do not meet the
success criteria of WCAG 2.1 Level AA. In addition, the proposed rule
will generally require public postsecondary educational institutions
and primary and secondary schools to provide accessible course content
to students with disabilities at the time that the schools knew or
should have known that a student with a disability is enrolled in a
class and would be unable to access the content available on the
password-protected website for that class (the rule provides a similar
requirement for parents with disabilities in the primary and secondary
school context). The Department performed analyses to estimate the
costs to test and remediate inaccessible websites, mobile apps, and
education course content. Estimated total costs of the rule can be
found in Table 3 above. The monetized costs are also summarized further
in the following subsections.
a. Regulatory Familiarization Costs
Regulatory familiarization refers to the time needed for
professional staff members to become familiar with the requirements of
new regulations. This may include time spent reading the rule itself,
but more commonly it refers to time spent reviewing guidance documents
provided by the Department, advocacy groups, or professional
organizations. It does not include time spent identifying current
compliance levels or implementing changes. It also does not include
training time to learn the nuances of WCAG 2.1 Level AA.
The Department has estimated regulatory familiarization costs to be
$27.2 million. The summary of the Department's regulatory
familiarization calculations is included in Table 13, and the
Department's analysis is explained in more detail in Section 3.2,
Regulatory Familiarization Costs, of the full PRIA. Average annualized
regulatory familiarization costs over 10 years, using a 7 percent
discount rate, are $3.6 million.
---------------------------------------------------------------------------
\201\ See Section 3.2, Regulatory Familiarization Costs, in the
accompanying PRIA for the Department's methodology.
Table 13--Regulatory Familiarization Costs \201\
------------------------------------------------------------------------
Variable Value
------------------------------------------------------------------------
Potentially affected governments........................ 91,489
Average hours per entity................................ 3
[[Page 51992]]
Loaded wage rate........................................ $98.98
Base wage \a\....................................... $49.49
Adjustment factor................................... 2.00
Cost year 1 ($1,000s)................................... $27,167
Annual cost years 2-10 ($1,000s)........................ $0
Average annualized cost, 3% discount rate ($1,000s)..... $3,092
Average annualized cost, 7% discount rate ($1,000s)..... $3,615
------------------------------------------------------------------------
\a\ 2021 Occupational Employment and Wage Survey (OEWS) median wage for
software and web developers, programmers, and testers (SOC 15-1250).
b. Website Testing, Remediation, and O&M Costs
The proposed rule uses WCAG 2.1 Level AA as the standard for State
and local government entities' websites. To assess costs to State and
local government entities, the Department employed multistage
stratified cluster sampling to randomly select government entities and
their websites. To account for variability in website complexity and
baseline compliance with WCAG 2.1 between government types, the
Department then sampled and assessed costs based on each government
type. Each identified website within the second-stage sample was tested
for accessibility using a two-pronged approach of automated and manual
testing to estimate the number of accessibility errors present on each
site. The Department estimated remediation costs for government
websites based on these manual and automated accessibility reports. The
cost of remediating a website was calculated by estimating the amount
of time it would take to fix each accessibility error identified on
that website and multiplying that time by the 2021 Occupational
Employment and Wage Survey (``OEWS'') median wage for software and web
developers, programmers, and testers and by a factor of two to account
for benefits and overhead.\202\
---------------------------------------------------------------------------
\202\ U.S. Bureau of Labor Statistics, May 2021 National
Occupational Employment and Wage Estimates United States (Mar. 31,
2022), https://www.bls.gov/oes/current/oes_nat.htm#15-0000 [https://perma.cc/U2JE-ZXAL].
---------------------------------------------------------------------------
Mobile app costs were analyzed separately as described in Section
VI.A.4.c of this preamble. Further, costs associated with the
remediation of PDFs and the captioning of video and audio media hosted
on government websites were estimated separately, in order to better
capture the nuanced costs associated with remediating these types of
content.
For costs of PDF remediation, the Department calculated both
software costs and remediation time, given that access to some PDF
editing software equipped with accessibility functionality is necessary
to ensure PDFs are accessible. The Department estimated the amount of
time needed to remediate existing PDFs covered by the proposed rule by
determining an average amount of time needed to make a pre-existing PDF
compliant with WCAG 2.1 Level AA and estimating the number of covered
PDFs hosted on State and local government entities' websites requiring
remediation.
For costs of captioning, two governments were randomly selected
from each government type, for a total of 28 governments selected. The
Department compiled a list of all videos and audio files associated
with each website. The Department then made a determination about
whether the video or audio media required captions and recorded their
durations. The durations of YouTube and Vimeo videos were imputed from
the mean duration of non-YouTube and non-Vimeo videos, computed across
all 28 governments. The Department estimated that, for those 28
entities, captioning is needed for: 1,640 minutes of non-YouTube and
non-Vimeo videos, 378 minutes of audio files, and 23,794 minutes of
YouTube and Vimeo videos. This adds up to a total captioning time of
25,811 minutes for the 28 governments. The Department then scanned
consumer prices and, based on that scan, applied an upper bound rate of
$15 per minute to caption to the total captioning time, yielding an
estimated cost of $387,200 across the 28 governments. For these same
governments, the total estimated website remediation costs are $8.1
million. Thus, the ratio of captioning costs to website remediation
costs is 4.8 percent. This ratio represents the estimated mean
percentage increase in website remediation costs when accounting for
video and audio content requiring captions--including content posted to
external sites and platforms such as YouTube and Vimeo. This mean
percentage was applied uniformly to all government types to scale up
the website remediation costs to account for video and audio content.
The Department's assessment of these costs is included in the full PRIA
and summarized in Table 14.
In addition, the Department estimated testing costs by evaluating
the pricing of several commercial web accessibility checkers that could
be used in tandem with manual testing. The Department then derived an
average cost to test and remediate all websites of a given government
entity for each government type and size. Initial website testing and
remediation costs are summarized in Table 14, and the methodologies
used to calculate these costs are fully described in Section 3.3,
website Testing, Remediation, and O&M Costs, in the full PRIA.
Table 14--Total Initial Website Testing and Remediation Costs
[Millions] \203\
----------------------------------------------------------------------------------------------------------------
Video and
Website PDF audio Total initial
Type of Government entity Testing costs remediation remediation captioning costs
costs costs costs
----------------------------------------------------------------------------------------------------------------
State........................... $28.3 $141.1 $22.9 $6.7 $199.0
County (small).................. 9.1 35.4 15.9 1.7 62.2
County (large).................. 87.7 433.2 44.4 20.6 585.9
Municipality (small)............ 268.8 1,260.1 112.7 60.0 1,701.5
Municipality (large)............ 61.8 304.2 45.0 14.5 425.5
Township (small)................ 185.5 876.1 89.5 41.7 1,192.8
Township (large)................ 3.8 18.0 2.1 0.9 24.7
Special district................ 61.4 247.0 13.8 11.8 333.9
U.S. territory (small).......... 0.1 0.6 0.4 0.0 1.2
U.S. territory (large).......... 0.6 3.0 0.7 0.1 4.5
School district (small)......... 175.1 813.5 55.7 38.7 1,083.0
[[Page 51993]]
School district (large)......... 85.2 421.4 24.1 20.1 550.8
Public university............... 73.4 362.7 26.7 17.3 480.1
Community college............... 98.0 483.4 30.9 23.0 635.3
-------------------------------------------------------------------------------
Total....................... 1,138.8 5,399.6 484.9 257.1 7,280.3
----------------------------------------------------------------------------------------------------------------
In addition to initial testing and remediation costs associated
with making existing web content accessible, the Department also
estimated O&M costs, which State and local government entities would
incur after the initial implementation phase. These O&M costs cover
ongoing activities required under the rule to ensure that new web
content meets WCAG 2.1 Level AA such as websites and new social media
posts.
---------------------------------------------------------------------------
\203\ See Section 3.3, website Testing, Remediation, and O&M
Costs, in the accompanying PRIA for the Department's methodology.
---------------------------------------------------------------------------
The Department estimates O&M costs will be composed of (1) a fixed
cost for technology to assist with creating accessible content, as well
as (2) a variable cost that scales according to the size and type of
content on the website. In general, entities whose websites have higher
remediation costs are likely to have a higher O&M burden, as
remediation cost is one useful measure of the amount of web content
that must conform to WCAG 2.1 Level AA. As such, the Department
believes that the initial remediation costs serve as a reasonable basis
for scaling future O&M costs. However, regardless of their initial
remediation burden, governments may be able to mitigate their ongoing
costs by developing systems early in the implementation period to
ensure that accessibility considerations are incorporated at every
stage of future content creation.
Annual O&M costs are estimated to be significantly smaller than
remediation costs because (1) the amount of new material added each
year will generally be less than the current amount of content and (2)
the cost to make new content accessible is significantly smaller than
to remediate existing content. One vendor estimates that making content
accessible during the development phase is 3-10 times faster, and
consequently less expensive, than remediating web content after a
website has been fully launched.\204\ Given the estimate that new web
content is 3-10 times faster to make accessible than existing content,
the Department concluded that allocating 10 percent of the time
originally used to test and remediate sites to O&M each year would be
more than sufficient to ensure future content is accessible.
---------------------------------------------------------------------------
\204\ Level Access, The Road to Digital Accessibility, https://www.levelaccess.com/the-road-to-digital-accessibility/ [https://perma.cc/4972-J8TA].
---------------------------------------------------------------------------
Table 15 displays the undiscounted annual O&M costs for each
government type. The total annual cost across all State and local
government entities is estimated to be $741.9 million. O&M costs are
estimated to accrue over the implementation period following the same
schedule described for initial costs. Large governments will incur 100
percent of annual O&M costs starting in Year 3 following promulgation
of the proposed rule, and small governments would incur these full O&M
costs beginning in Year 4. For more on annual O&M costs, please see
Section 3.3.8, Operating and Maintenance (``O&M'') Costs, of the
accompanying PRIA.
---------------------------------------------------------------------------
\205\ See Section 3.3.8, Operating and Maintenance (O&M) Costs,
in the accompanying PRIA for the Department's methodology.
Table 15--Annual O&M Costs, by Government Type
[Thousands] \205\
------------------------------------------------------------------------
Total
Undiscounted undiscounted
Type of Government entity annual O&M annual O&M
costs, per costs for all
entity \a\ entities
------------------------------------------------------------------------
State................................... $390.3 $19,906.4
County (small).......................... 3.1 6,470.7
County (large).......................... 63.4 58,677.8
Municipality (small).................... 9.2 172,517.7
Municipality (large).................... 55.6 42,622.7
Township (small)........................ 7.6 121,724.7
Township (large)........................ 15.9 2,482.2
Special district........................ 1.1 40,513.9
U.S. territory (small).................. 57.9 115.8
U.S. territory (large).................. 149.2 447.7
School district (small)................. 9.6 109,531.3
School district (large)................. 70.8 55,156.1
Public university....................... 64.6 48,081.1
Community college....................... 55.5 63,644.5
-------------------------------
Total............................... 8.1 741,892.6
------------------------------------------------------------------------
\a\ This column presents the mean annual O&M cost across all
governments, including those that do not have a website.
[[Page 51994]]
The Department assumes that initial testing and remediation costs
would be uniformly distributed across the number of implementation
years for each entity type. In aggregate, it was assumed that large
entities would incur 50 percent of their initial testing and
remediation costs during each of Year 1 and Year 2 following the
promulgation of the rule, and that small entities would incur 33
percent of their initial testing and remediation costs during each of
the first three years following the promulgation of the rule. Total
projected website costs over 10 years are displayed in Table 16, and
are discussed in Section 3.3.9 of the full PRIA. Present value (``PV'')
and average annualized costs are displayed using both a 3 percent and 7
percent discount rate.
Table 16--Total Projected 10-Year Website Costs \206\
------------------------------------------------------------------------
Cost
Time period (millions)
------------------------------------------------------------------------
Year 1.................................................. $2,911.0
Year 2.................................................. 3,206.8
Year 3.................................................. 2,049.8
Year 4.................................................. 741.9
Year 5.................................................. 741.9
Year 6.................................................. 741.9
Year 7.................................................. 741.9
Year 8.................................................. 741.9
Year 9.................................................. 741.9
Year 10................................................. 741.9
PV of 10-year costs, 3% discount rate................... 11,954.8
Average annualized costs, 3% discount rate.............. 1,401.5
PV of 10-year costs, 7% discount rate................... 10,458.6
Average annualized costs, 7% discount rate.............. 1,489.1
------------------------------------------------------------------------
c. Mobile App Testing, Remediation, and O&M Costs
---------------------------------------------------------------------------
\206\ See Section 3.3.9, Total Costs for Website Testing and
Remediation, in the accompanying PRIA for the Department's
methodology.
---------------------------------------------------------------------------
Mobile apps offer convenient access to State and local government
entities' services, programs, and activities. According to a 2021 U.S.
Census Bureau report, in 2018, smartphones and tablet devices were
present in 84 percent and 63 percent of U.S. households,
respectively.\207\ Mobile apps are relatively new compared to websites,
and a different technology. Existing tools to evaluate website
accessibility cannot reasonably be applied to mobile apps and cannot be
easily altered for mobile app evaluation. The tools that do exist to
evaluate mobile app accessibility are largely geared towards app
developers and often require access to mobile app coding.\208\
Literature related to accessibility for mobile software is also sparse,
which may be attributed to the relative lack of tools available to
assess mobile app accessibility compared with the tools available to
assess website accessibility.\209\ The Department expects that these
resources will grow as a result of this rulemaking and a resulting
greater demand for mobile app accessibility resources.
---------------------------------------------------------------------------
\207\ Michael Martin, Computer and internet Use in the United
States: 2018, American Community Survey Reports (Apr. 2021), https://www.census.gov/content/dam/Census/library/publications/2021/acs/acs-49.pdf [https://perma.cc/ST79-PKX5].
\208\ See id.
\209\ See id.
---------------------------------------------------------------------------
Under the proposed rule, mobile apps that State and local
government entities make available to members of the public or use to
offer services, programs, and activities to members of the public must
adhere to WCAG 2.1 Level AA. To evaluate costs associated with mobile
app compliance, a simple random sample of five entities was selected
for each type of government. As described in more detail in Section
3.3.2, Government and Website Sampling, in the accompanying PRIA,
governments were stratified by size when sampled.
State and local Government entities are obligated to ensure that
mobile apps they make available or use to offer services, programs, and
activities to members of the public are accessible. However, as with
websites, the Department only identified mobile apps created directly
for a government. The Department did not include mobile apps developed
and managed by third parties and used by the sampled government
entities (``external mobile apps'') because the Department was unable
to find existing data or literature on the cost to remediate these
apps, which may differ substantially from internal mobile apps.
Additionally, many of these external mobile apps are used by multiple
government clients, so our sample would overcount these apps. However,
unlike websites, the Department has not included costs for third-party
mobile apps as a separate cost, because the necessary data are
unavailable. Exclusion of third-party developed mobile apps from this
analysis may underestimate costs. The Department believes this
undercount is offset elsewhere. For example, for State and local
government entities' mobile apps used to offer services, programs, and
activities to members of the public, the Department assumed all non-
compliant material would be remediated, but in reality, some material
that is not actively being used will likely be archived or removed.
To estimate the number of mobile apps controlled by State and local
government entities, the Department calculated the average number of
identified mobile apps per government entity in the sample, by entity
type. The results of these calculations are presented below in Table
17. This was multiplied by the number of government entities for each
respective government type (see Table 11) to estimate the number of
mobile apps controlled by each government type. Estimates of the total
number of mobile apps controlled by each government type are presented
below, in Table 18. These calculations are discussed further in Section
3.4.1.1, Mobile App Estimation, of the PRIA.
---------------------------------------------------------------------------
\210\ See Section 3.4.1.1, Mobile App Estimation, in the
accompanying PRIA for the Department's methodology.
Table 17--Average Number of Mobile Apps by Government Type \210\
----------------------------------------------------------------------------------------------------------------
Population Population
Type of Government entity less than more than Total
50,000 50,000
----------------------------------------------------------------------------------------------------------------
State........................................................... N/A 4.40 4.40
County.......................................................... 0.20 0.60 0.32
Municipal....................................................... 0.00 1.00 0.04
Township........................................................ 0.00 0.20 0.00
Special district................................................ 0.00 [\a\] 0.00
School district................................................. 0.40 1.40 0.46
U.S. territory.................................................. 0.50 5.33 3.40
Public university............................................... 1.20 [\a\] 1.20
[[Page 51995]]
Community college............................................... 0.20 [\a\] 0.20
-----------------------------------------------
Total (special districts and higher education).............. [\a\] [\a\] 0.03
-----------------------------------------------
Total (all else)............................................ 0.10 1.00 0.15
----------------------------------------------------------------------------------------------------------------
[\a\] Special district, public university, and community college data do not include population. For tables in
Section VI.A.4.c of this preamble, they are displayed as entities with populations less than 50,000.
Table 18--Total Estimated Number of Mobile Apps by Government Type \211\
----------------------------------------------------------------------------------------------------------------
Population Population
Type of Government entity less than more than Total
50,000 50,000
----------------------------------------------------------------------------------------------------------------
State........................................................... N/A 224 224
County.......................................................... 421 556 977
Municipal....................................................... 0 766 766
Township........................................................ 0 31 31
Special district................................................ 0 [\a\] 0
School district................................................. 4,577 1,091 5,668
U.S. territory.................................................. 1 16 17
Public university............................................... 893 [\a\] 893
Community college............................................... 229 [\a\] 229
-----------------------------------------------
Total (special districts and higher education).............. 1,122 [\a\] 1,122
-----------------------------------------------
Total (all else)............................................ 4,999 2,684 7,683
----------------------------------------------------------------------------------------------------------------
[\a\] Special district, public university, and community college data do not include population. For tables in
Section VI.A.4.c of this preamble, they are displayed as entities with populations less than 50,000.
As the Department describes more fully in its PRIA, there is a lack
of literature related to accessibility testing guidelines, tools, and
costs for mobile apps. Because of this, the Department assumed that
costs to test and modify a mobile app for compliance with WCAG 2.1
Level AA success criteria would be a percentage of the cost to develop
an ``average'' mobile app, based on the limited literature the
Department found related to making mobile apps accessible. Using best
professional judgment, the Department assumed that costs to test and
modify an existing mobile app for accessibility will be greater than
half of the cost to develop a mobile app from scratch, but less than
the total cost of developing a new mobile app. Specifically, the
Department assumed that the cost to test and modify a mobile app for
accessibility will be 65 percent of the cost to develop a new mobile
app. The Department seeks the public's input on this assumption. The
Department used mobile app development cost data made public by the
mobile app developer SPD Load in 2022 to estimate an average mobile app
development cost of $105,000.\212\ This results in an average mobile
app accessibility testing and modification cost of $68,250 (65 percent
of $105,000). Some mobile apps may be more complex than others, and
therefore more expensive to test and modify for accessibility.\213\ The
Department thus used file size as a proxy for mobile app complexity in
its analysis.
---------------------------------------------------------------------------
\211\ Id.
\212\ SPD Load, How Much Does It Cost to Develop an App in 2022?
Cost Breakdown, https://spdload.com/blog/app-development-cost/
[https://perma.cc/Y2RM-X7VR].
\213\ Sudeep Srivastava, What Differentiates a $10,000 Mobile
App From a $100,000 Mobile App?, appinventiv (May 6, 2022), https://appinventiv.com/blog/mobile-app-development-costs-difference/
[https://perma.cc/5RBB-W7VP].
---------------------------------------------------------------------------
Table 19 shows the average costs associated with testing and
modifying an existing mobile app to conform with WCAG 2.1 Level AA.
Generally, the estimated costs differ due to variability in the file
size. The average cost of initial mobile app testing and remediation
was then multiplied by the total estimated number of mobile apps for
each respective government type and size (see Table 18) to generate an
estimated cost to all government entities in each respective category
(Table 20). Underlying calculations to these tables are discussed
further in Section 3.4, Mobile App Testing, Remediation, and O&M Costs,
of the accompanying PRIA.
---------------------------------------------------------------------------
\214\ See Section 3.4, Mobile App Testing, Remediation, and O&M
Costs, in the accompanying PRIA for the Department's methodology.
Table 19--Average Cost To Modify a Mobile App by Government Type \214\
------------------------------------------------------------------------
Population Population
Type of Government entity less than more than
50,000 50,000
------------------------------------------------------------------------
State................................... N/A $61,045
County.................................. $59,356 50,478
Municipal............................... N/A 121,922
Township................................ N/A 41,624
[[Page 51996]]
Special district........................ \a\ N/A [\a\]
School district......................... 68,250 61,670
U.S. territory.......................... 134,991 65,971
Public university....................... \a\ 52,185 [\a\]
Community college....................... \a\ 77,478 [\a\]
-------------------------------
Total (special districts and higher 64,832 [\a\]
education).........................
-------------------------------
Total (all else).................... 87,532 67,118
------------------------------------------------------------------------
\a\ Special district, public university, and community college data do
not include population. For tables in Section VI.A.4.c of this
preamble, they are displayed as entities with populations less than
50,000.
Table 20--Initial Mobile App Costs
[Millions] \215\
----------------------------------------------------------------------------------------------------------------
Population Population
Type of Government entity less than more than Total
50,000 50,000
----------------------------------------------------------------------------------------------------------------
State........................................................... N/A $13.7 $13.7
County.......................................................... $25.0 28.0 53.0
Municipal....................................................... 0.0 93.4 93.4
Township........................................................ 0.0 1.3 1.3
Special district................................................ \a\ 0.0 [\a\] 0.0
School district................................................. 312.4 67.3 379.7
U.S. territory.................................................. 0.1 1.1 1.2
Public university............................................... \a\ 46.6 [\a\] 46.6
Community college............................................... \a\ 17.8 [\a\] 17.8
-----------------------------------------------
Total (special districts and higher education).............. 64.3 [\a\] 64.3
-----------------------------------------------
Total (all else)............................................ 337.5 204.7 542.3
----------------------------------------------------------------------------------------------------------------
\a\ Special district, public university, and community college data do not include population. For tables in
Section VI.A.4.c of this preamble, they are displayed as entities with populations less than 50,000.
Costs for the proposed rule are expected to be incurred at
different times for each type of government entity because of
differences in proposed implementation timelines. Government entities
serving populations over 50,000 will have two years to implement the
proposed rule, and costs are assumed to be distributed evenly across
the two implementation years. Government entities serving populations
of less than 50,000 and special districts will have three years to
implement the proposed rule, and costs are assumed to be distributed
evenly among the three implementation period years. Public
postsecondary institutions are generally associated with large
governments, and consequently, for purposes of this analysis, the
Department assumes that public postsecondary institutions will have two
years to implement the rule.
---------------------------------------------------------------------------
\215\ Id.
---------------------------------------------------------------------------
Additionally, the Department assumed that State and local
Government entities will incur O&M costs associated with accessibility
maintenance starting after the proposed rule's implementation period.
The Department, using best professional judgment due to the absence of
applicable data, assumed that added O&M costs associated with
accessible mobile apps are equal to 10 percent of O&M costs associated
with an average mobile app. The Department used a publicly available
data range to calculate average annual mobile app O&M costs and
estimate the annual cost of O&M for an average mobile app.\216\ The
estimated average annual cost of O&M per mobile app ($375) was
multiplied by 10 percent to calculate expected additional O&M costs
incurred as a result of compliance with the proposed rule ($37.50). The
Department then multiplied expected additional O&M costs per app by the
total estimated number of mobile apps. Undiscounted costs of compliance
with the proposed rule over a 10-year period, PV of costs, and average
annualized costs are presented in Table 21 and discussed further in
Section 3.4, Mobile App Testing, Remediation, and O&M Costs, of the
accompanying PRIA.
---------------------------------------------------------------------------
\216\ Michael Georgiou, Cost of Mobile App Maintenance in 2022
and Why It's Needed, Imaginovation Insider (June 30, 2022), https://imaginovation.net/blog/importance-mobile-app-maintenance-cost/
[https://perma.cc/UY5K-6FKC].
\217\ See Section 3.4, Mobile App Testing, Remediation, and O&M
Costs, in the accompanying PRIA for the Department's methodology.
Table 21--Timing of Mobile App Costs
[Millions] \217\
------------------------------------------------------------------------
Time period Costs
------------------------------------------------------------------------
Year 1.................................................. $247.1
Year 2.................................................. 247.1
Year 3.................................................. 112.6
Year 4.................................................. 0.3
Year 5.................................................. 0.3
Year 6.................................................. 0.3
Year 7.................................................. 0.3
Year 8.................................................. 0.3
Year 9.................................................. 0.3
Year 10................................................. 0.3
PV of 10-year costs, 3% discount rate................... 577.7
Average annualized costs, 3% discount rate.............. 67.7
PV of 10-year costs, 7% discount rate................... 540.1
[[Page 51997]]
Average annualized costs, 7% discount rate.............. 76.9
------------------------------------------------------------------------
d. Postsecondary Education
The proposed rule distinguishes between public postsecondary
institutions' public-facing websites, mobile apps, and password-
protected course material. Costs were estimated separately for these
three categories.
Public-facing websites were assessed for current levels of
compliance using SortSite, a software application the Department used
to assess accessibility in tandem with manual testing.\218\ For this
cost component, unstratified random samples were drawn consisting of 10
public four-year universities and 10 public community colleges.\219\
Whereas the Department searched for and scanned other State and local
government entities' secondary websites, only the main site was scanned
for postsecondary institutions. Instead, the Department estimated that
postsecondary institutions' secondary websites would incur testing and
remediation costs equal to 1.1 times the testing and remediation costs
of their main websites. Postsecondary institutions were found to have
main website costs that were most similar to those of large school
districts and large counties, and for those two types of government
entities, secondary websites incur 1.1 times the cost of the main
websites, on average. Large school districts and large counties also
have 5.7 times as many secondary websites as main websites and their
secondary websites have 0.25 times the number of PDFs as their main
websites. Those ratios were used in estimating numbers of higher
education secondary websites and secondary website PDF costs. For a
more complete discussion of the Department's methodology, please see
Section 3.5.1, Postsecondary Education Overview, of the accompanying
PRIA.
---------------------------------------------------------------------------
\218\ The Department's basis for selecting SortSite, as well as
its methods for using SortSite in tandem with manual testing, are
described in more detail in the full PRIA.
\219\ Technical colleges were included with community colleges.
---------------------------------------------------------------------------
Postsecondary institutions' mobile app costs were assessed
separately using the Department's methodology for mobile app
calculation. This is discussed in full in the Department's PRIA.
Given that website accessibility scanning software is not
compatible with password-protected sites, costs to remediate online
course content were estimated with a different method. As an overview,
the Department used a probabilistic model to estimate the proportion of
courses that would require remediation during the first year of
remediating course content under the proposed rule (the first year
after implementation). As discussed in more detail in the full PRIA,
the Department determined as a result of its modeling that virtually
all remaining courses would be remediated in the second year of
remediating course content. The Department does not expect that courses
will be made accessible in a significant way in the absence of the
rule, though this assumption is based on literature on trends in web
accessibility rather than statistical modeling. The high rate at which
courses will need remediation under the proposed rule is a notable
finding of the Department's analysis, which has major implications for
students with disabilities. The Department also conducted sensitivity
analyses to ensure the PRIA accounts for a range of possibilities on
course remediation.
O&M costs for course content were estimated at a higher annual rate
than for websites to account for new courses that may be introduced,
additional captioning associated with video lectures, and the like.
This is further described in the Department's full PRIA.
Under the proposed rule, password-protected postsecondary course
content (e.g., course content provided through third-party learning
management systems) must be made accessible when an institution is on
notice that a student with a relevant disability is enrolled in a
particular class. Using data from the 2021 SIPP, the Department
estimated the prevalence of students with either a hearing, vision,
manual dexterity, or cognitive disability. The Department estimated
prevalence values for individuals aged 18-22 to account for the
conventional school age population that attends four-year institutions
and used an age range of 17-29 for community college students.\220\ The
Department recognizes that these age ranges do not represent the entire
postsecondary population, and that they may underestimate disability
prevalence by excluding older populations who may be more likely to
have disabilities. However, given the need to define the population's
age in order to estimate disability prevalence, the Department feels
that these are appropriate ranges for this cost estimation.
---------------------------------------------------------------------------
\220\ The range 17-29 was calculated from National Center for
Education Statistics data and includes 80 percent of the community
college population.
---------------------------------------------------------------------------
The Department understands that only a portion of students with
disabilities will require course remediation. Data in the High School
Longitudinal Study (``HSLS'') of 2009, conducted by the National Center
for Education Statistics (``NCES''), suggests that 37 percent of
students with disabilities report their disability to their college or
university.\221\ Applying this proportion to the disability prevalence
rates for students with a vision, hearing, dexterity, or cognitive
disability, yields the percent of individuals aged 18-22 and 17-29 who
will report a relevant disability to their college or university.
However, because the HSLS reports the fraction of students with any
disability who report their disability to the school, and not the
fraction of students with either a vision, hearing, dexterity, or
cognitive disability who report their disability to the school, this
number may be an over- or underestimate depending on the variability in
the likelihood that students with specific disabilities report their
disability to the school. To estimate average class sizes, the
Department used Common Data Set (``CDS'') reports from 21 public
universities and 10 community colleges, resulting in an average of 29.8
students per class in public universities and 20.4 students per class
in community colleges.\222\
---------------------------------------------------------------------------
\221\ Institute of Education Sciences, Use of Supports Among
Students with Disabilities and Special Needs in College Supp. Tbl. 2
(Apr. 2022), https://nces.ed.gov/pubs2022/2022071/index.asp [https://perma.cc/RSY3-TQ46].
\222\ See Common Data Set Initiative, https://commondataset.org/
(last visited June 15, 2023).
---------------------------------------------------------------------------
When estimating the percent of courses that will be remediated in
each year, the Department found that, within two years following
implementation, virtually all postsecondary courses will have been
remediated. Specifically, the probability function discussed in Section
3.5.2.2, Probabilistically Calculating the Rate of Course Remediation,
in the Department's PRIA shows that by the end of year four (two years
after postsecondary schools begin to remediate course content), 96
percent of courses offered by public four-year and postgraduate
institutions and 90 percent of courses offered by community colleges
will have been remediated. The Department assumes that despite having
some courses for which remediation has not been requested by year five,
postsecondary institutions will finish remediation on their own to
preempt requests in the
[[Page 51998]]
following year. For institutions that wait to remediate outstanding
courses, the costs will be negligible because the number of outstanding
courses is projected to be low, and because in year three entities will
likely have ensured that their LMS supports accessibility and that
their instructors have appropriate tools and training. These findings
about the rapidity of course remediation speak to the necessity and
importance of this rule. Table 22 shows the assumptions, data, and
methods from Section 3.5, Postsecondary Education, of the accompanying
PRIA to estimate course costs.
---------------------------------------------------------------------------
\223\ See Section 3.5, Postsecondary Education, in the
accompanying PRIA for the Department's methodology.
\224\ Beverly Farr et al., A Needs Assessment of the
Accessibility of Distance Education in the California Community
College System Part II: Costs and Promising Practices Associated
with Making Distance Education Courses Accessible, MPR Associates,
Inc. (May 2009), https://files.eric.ed.gov/fulltext/ED537862.pdf
[https://perma.cc/LFT7-R2CL].
\225\ Cyndi Rowland, GOALS Cost Case Study: Cost of Web
Accessibility in Higher Education, Gaining Online Accessible
Learning through Self-Study (Dec. 2014), https://www.ncdae.org/documents/GOALS_Cost_Case_Study.pdf [https://perma.cc/UH6V-SBTU].
Table 22--Course Remediation Costs \223\
----------------------------------------------------------------------------------------------------------------
Public Community
Description university college Source
----------------------------------------------------------------------------------------------------------------
Age range..................................... 18-22 17-29 NCES.
Average class size............................ 29.8 20.4 CDS Data.
Prevalence of disabilities.................... 0.13 0.12 SIPP Data.
Share of students with a disability who notify 0.37 0.37 HSLS.
school.
Share of students who have a relevant 0.05 0.04 Calculation.
disability and notify school.
Total number of courses offered............... 1,803,277 965,097 Calculation.
Number of courses remediated first semester... 900,406 383,766 Calculation.
Cost per course............................... $1,690 $1,690 Farr et al. (2009).\224\
NCDAE.\225\
First semester cost for all institutions $1,521.6 $648.5 Calculation.
(millions).
First semester mean cost per institution $2.0 $0.6 Calculation.
(millions).
Number of courses remediated second semester.. 563,214 269,294 Calculation.
Second semester course remediation costs $951.8 $455.1 Calculation.
(millions).
First year cost (millions).................... $2,473.4 $1,103.6 Calculation.
Courses remediated in Year 2.................. 339,656 312,037 Calculation.
Year 2 course remediation cost (millions)..... $574.0 $527.3 Calculation.
Total costs to remediate all courses $3,047.4 $1,630.9 Calculation.
(millions).
Mean cost per institution to remediate all $4.1 $1.4 Calculation.
courses (millions).
Mean cost per student to remediate all courses $340.7 $341.4 Calculation.
Yearly O&M cost per course.................... $253 $253 Calculation.
Total yearly O&M cost (millions).............. $609.5 $326.2 Calculation.
Mean O&M cost per institution................. $819,198 $285,380 Calculation.
----------------------------------------------------------------------------------------------------------------
The Department calculated the proportion of classes requiring
remediation on a per school basis using a methodology outlined in the
PRIA, and with that number calculated the total number of classes
offered by a school requiring remediation. The Department developed a
per-course cost estimate because it believes that password-protected
course content is unique in its combination of level of complexity,
volume of material, and distribution of content compared to other
government web content. These qualities distinguish it from other
government entities' web contents, which necessitate a separate
estimation approach. Though literature on the cost of remediating
course content to WCAG 2.1 Level AA is sparse, the Department used
findings from Farr et al. (2009) \226\ and the National Center on
Disability and Access to Education (``NCDAE'') GOALS Course Cost Case
Study (2014),\227\ to estimate the cost to remediate a course to be
$1,690. Each of these studies presented ranges of cost estimates for
``simple'' and ``complex'' courses.\228\ To generate an average course
cost, the Department took the midpoint of the given ranges and
generated a weighted average from the two studies' ``simple'' and
``complex'' course cost estimates using survey data from Farr et al.
(2009) that estimated 40 percent of classes to be complex, and 60
percent of classes to be simple.\229\ A full explanation of the
Department's methodology on course cost estimates can be found in
Section 3.5.2.3 of the accompanying PRIA.
---------------------------------------------------------------------------
\226\ Beverly Farr et al., A Needs Assessment of the
Accessibility of Distance Education in the California Community
College System Part II: Costs and Promising Practices Associated
with Making Distance Education Courses Accessible, MPR Associates,
Inc. (May 2009), https://files.eric.ed.gov/fulltext/ED537862.pdf
[https://perma.cc/LFT7-R2CL].
\227\ Cyndi Rowland et al., GOALS Cost Case Study: Cost of Web
Accessibility in Higher Education, Gaining Online Accessible
Learning through Self-Study (Dec. 2014), https://www.ncdae.org/documents/GOALS_Cost_Case_Study.pdf [https://perma.cc/UH6V-SBTU].
\228\ ``Simple'' courses are loosely defined as courses that
mostly house images and documents.
\229\ See Farr et al., at 5. As part of this study, experts were
interviewed on online learning to estimate the proportion of classes
which are simple or complex. These estimates are discussed
throughout the paper and are first referenced on page 5.
---------------------------------------------------------------------------
The Department then multiplied the sum of the number of all
institutions' first semester courses requiring remediation by the cost
per course to estimate a total first-semester cost to remediate
courses. The Department expects the first semester to be the most
expensive as it will be the semester with the smallest amount of
existing compliance, and therefore the greatest number of classes that
are out of compliance with WCAG 2.1 Level AA. In subsequent semesters,
those courses that have been previously remediated will already be
accessible, meaning the total pool of classes needing remediation will
decrease over time. The Department estimates that 46 percent of all
classes offered between community colleges and four-year and
postgraduate institutions will be remediated in the first semester,
costing a total of $2.2 billion. On a per-student basis, this is $170
for four-year and postgraduate institutions and $136 for community
colleges. A full explanation of the Department's methodology can be
[[Page 51999]]
found in Section 3.5, Postsecondary Education of the accompanying PRIA.
To calculate second-semester classes requiring remediation, the
Department used the same proportion of classes needing remediation but
calculated a new number of classes that are eligible for remediation.
The Department estimates that there is a 50 percent overlap in classes
offered during semester one and semester two. Using that estimate, the
Department calculated the number of second semester classes eligible
for remediation as half the number of classes in the first semester
plus the courses which are offered both semesters but were not
remediated in semester one. The Department estimates that 563,214
public four-year and postgraduate courses and 269,294 community college
courses will need to be remediated in semester two, which will cost a
total of $1.4 billion. Because the Department's estimated rate of
remediation is relatively high (the modeling above yields a 75 percent
remediation rate in semester one for four-year institutions, and a 60
percent remediation rate in semester one for community colleges), the
Department assumed that by the end of the second year of remediation,
all postsecondary institutions will have remediated all currently
offered courses. For the Department's detailed methodology, see Section
3.5.2.2, Probabilistically Calculating the Rate of Course Remediation,
of the accompanying PRIA.
Following this remediation period, the Department estimates yearly
O&M costs to be 15 percent of initial remediation costs, amounting to
$253 per class. As discussed more fully in its PRIA, the Department
estimates general O&M costs to be 10 percent of total remediation
costs. Given that course content often contains video-based lectures
requiring closed captioning, and content that is updated more
frequently than general web content, the Department assumes a 50
percent higher O&M cost for course content than for general web
content. Additionally, this 50 percent higher estimate accounts for the
cost of developing new accessible courses. The full 10-year costs of
the rule for course remediation and O&M costs are presented in Table
23, along with PV and annualized costs. A full explanation of the
Department's methodology can be found in Section 3.5, Postsecondary
Education, of the PRIA.
Table 23--Projected 10-Year Costs for Course Remediation \230\
[Millions]
----------------------------------------------------------------------------------------------------------------
Public Community
Institution type university college Total
----------------------------------------------------------------------------------------------------------------
Year 1.......................................................... $0 $0 $0
Year 2.......................................................... 0 0 0
Year 3.......................................................... 2,473 1,104 3,577
Year 4.......................................................... 1,069 748 1,817
Year 5.......................................................... 609 326 936
Year 6.......................................................... 609 326 936
Year 7.......................................................... 609 326 936
Year 8.......................................................... 609 326 936
Year 9.......................................................... 609 326 936
Year 10......................................................... 609 326 936
PV, 3% discount rate............................................ 6,147 3,245 9,391
PV, 7% discount rate............................................ 5,051 2,658 7,708
Annualized cost, 3% discount rate............................... 721 380 1,101
Annualized cost, 7% discount rate............................... 719 378 1,097
----------------------------------------------------------------------------------------------------------------
e. Elementary and Secondary Class or Course Content Remediation
---------------------------------------------------------------------------
\230\ See Section 3.5, Postsecondary Education, in the
accompanying PRIA for the Department's methodology.
---------------------------------------------------------------------------
Under the proposed rule, password-protected course content (e.g.,
content provided through third-party learning management systems) in a
public elementary or secondary school generally must be made accessible
when a student with a disability is enrolled in the course or when a
student is enrolled whose parent has a disability. This section
summarizes the Department's analysis of the costs for elementary and
secondary education institutions to make this content accessible, which
is discussed in depth in Section 3.6, Elementary and Secondary Course
Content Remediation, of the PRIA. Much of the methodology used is
similar to that for course remediation costs for postsecondary
education. The Department estimates that annualized costs with a 3
percent discount rate for elementary and secondary education
institutions are $195 million. Additionally, these institutions will
incur some O&M costs after implementation.
NCES publishes a list of all public schools in the United States
with enrollment counts by grade level for kindergarten (grade K)
through 12th grade.\231\ Best available estimates suggest 66 percent of
all schools (public and private) have an LMS and the Department assumed
that this number will not change significantly in the next 10 years in
the presence or absence of this rule.\232\ The Department made this
assumption due to a lack of available data, and the Department notes
that even if there were an increase in the percent of schools with an
LMS, this would increase both costs and benefits, likely resulting in a
nominal impact to the net benefits of the rule. Using these data, the
number of public schools with an LMS was computed by grade level. The
Department estimated the number of unique classes or courses offered
per school and per grade level, and then used this value to calculate
the total number of LMS classes or courses that must be remediated in
each school.\233\
[[Page 52000]]
Table 24 presents the assumptions for the number of unique LMS classes
or courses offered per grade level, based on the Department's best
professional judgment. The number of unique classes or courses is lower
for earlier grade levels \234\ and increases in higher grade levels as
education becomes more departmentalized (i.e., students move from
teacher to teacher for their education in different subjects) and
schools generally introduce more elective offerings as students
progress toward grade 12.\235\
---------------------------------------------------------------------------
\231\ Institute of Education Sciences, ELSI Elementary/Secondary
Information System 2020-21 Public School Student Enrollments by
Grade, National Center for Education Statistics, https://nces.ed.gov/ccd/elsi/default.aspx. A Perma archive link was
unavailable for this citation.
\232\ Frank Catalano, Pandemic Spurs Changes in the Edtech
Schools Use, From the Classroom to the Admin Office, EdSurge (Jan.
2021), https://www.edsurge.com/news/2021-01-26-pandemic-spurs-changes-in-the-edtech-schools-use-from-the-classroom-to-the-admin-office [https://perma.cc/N2Y3-UKM2].
\233\ To the extent that the percentage of public schools with
an LMS is lower than the percentage of private schools, the analysis
presented here overestimates the true elementary and secondary class
or course remediation costs.
\234\ Standardized curricula and relatively lower mean
enrollments in earlier grade levels tend to decrease the number of
unique class or course offerings per grade level, which would reduce
the number of LMS classes or courses that must be remediated.
\235\ According to NCES, in the 2017-2018 school year, 24
percent of elementary school classes were departmentalized, compared
to 93 percent of middle schools and 96 percent of high schools.
National Teacher and Principal Survey, NCES, https://nces.ed.gov/surveys/ntps/tables/ntps1718_fltable06_t1s.asp [https://perma.cc/8XAK-XK4L].
Table 24--Calculation of Elementary and Secondary Class or Course Remediation Costs, by Grade Level
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost to
Number of Number of Number of LMS Number of remediate a Total cost
Grade level schools [a] schools with courses per courses to year-long (millions)
an LMS [b] grade level remediate course
--------------------------------------------------------------------------------------------------------------------------------------------------------
K....................................................... 52,155 34,422 1 34,422 $182 $6.3
1....................................................... 52,662 34,757 1 34,757 182 6.3
2....................................................... 52,730 34,802 1 34,802 182 6.3
3....................................................... 52,661 34,756 1 34,756 182 6.3
4....................................................... 52,363 34,560 1 34,560 182 6.3
5....................................................... 50,903 33,596 7 235,172 364 85.7
6....................................................... 35,032 23,121 7 161,848 364 59.0
7....................................................... 29,962 19,775 7 138,424 364 50.5
8....................................................... 30,161 19,906 7 139,344 364 50.8
9....................................................... 23,843 15,736 14 220,309 994 219.0
10...................................................... 24,200 15,972 14 223,608 994 222.3
11...................................................... 24,322 16,053 14 224,735 994 223.4
12...................................................... 24,304 16,041 14 224,569 994 223.2
-----------------------------------------------------------------------------------------------
Total............................................... N/A N/A N/A N/A N/A 1,165.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] This represents the number of schools with nonzero enrollment in the listed grade level. As such, a single school can be represented on multiple
rows.
[b] This represents the number of schools with an LMS and nonzero enrollment in the listed grade level.
As discussed in its assessment of postsecondary education costs,
the Department estimated costs to remediate a single postsecondary
course using two estimates from Farr et al. (2009) \236\ and the NCDAE
GOALS Course Case Study.\237\ Those papers also estimate the cost of
remediating a ``simple'' college course. The Department assumes that a
high school course is equivalent in its complexity to a ``simple''
college course and used estimates on time spent on homework to scale
course costs for different grade levels. For a more complete discussion
of course cost estimates, please see Section 3.6 of the accompanying
PRIA. Summing across all grade levels yields total costs of $1.2
billion. Table 25 presents the costs incurred in the first 10 years
following promulgation of the rule, by entity type. For each year after
completing class or course remediation, the Department assumed
elementary and secondary school districts would incur an O&M cost equal
to 10 percent of the initial remediation cost. The Department assumes
costs will not be incurred until the year required by the rule (Year 4
for small entities and Year 3 for large entities) because classes or
courses would not be remediated until necessary. The Department expects
that elementary and secondary classes or courses will be remediated at
a faster rate than postsecondary courses, given that the proposed rule
generally requires elementary and secondary educational web content to
be accessible if requested by either the child or their parent(s),
whereas postsecondary course provisions in the rule do not provide for
parent(s) to request accessible web content. As such, the Department
expects that virtually all class or course content will be remediated
by elementary and secondary educational institutions in the first year
required under the rule.
---------------------------------------------------------------------------
\236\ Beverly Farr et al., A Needs Assessment of the
Accessibility of Distance Education in the California Community
College System Part II: Costs and Promising Practices Associated
with Making Distance Education Courses Accessible, MPR Associates,
Inc. (May 2009), https://files.eric.ed.gov/fulltext/ED537862.pdf
[https://perma.cc/LFT7-R2CL].
\237\ Cyndi Rowland et al., GOALS Cost Case Study: Cost of web
accessibility in higher education, Gaining Online Accessible
Learning through Self-Study, (Dec. 2014), https://www.ncdae.org/documents/GOALS_Cost_Case_Study.pdf [https://perma.cc/UH6V-SBTU].
Table 25--Projected 10-Year Course Remediation Costs
[Millions]
----------------------------------------------------------------------------------------------------------------
Cost for small Cost for large
Time period school school Total costs
districts districts
----------------------------------------------------------------------------------------------------------------
Year 1.......................................................... $0 $0 $0
Year 2.......................................................... 0 0 0
Year 3.......................................................... 0 551 551
Year 4.......................................................... 614 55 670
Year 5.......................................................... 61 55 117
[[Page 52001]]
Year 6.......................................................... 61 55 117
Year 7.......................................................... 61 55 117
Year 8.......................................................... 61 55 117
Year 9.......................................................... 61 55 117
Year 10......................................................... 61 55 117
PV, 3% discount rate............................................ 842 818 1,660
PV, 7% discount rate............................................ 692 692 1,384
Annualized cost, 3% discount rate............................... 99 96 195
Annualized cost, 7% discount rate............................... 99 99 197
----------------------------------------------------------------------------------------------------------------
f. Costs for Third-Party Websites and Mobile Apps
Some government entities use third-party websites and mobile apps
to provide government services, programs, and activities. The
Department estimated costs to modify existing third-party websites that
are used to provide government services. Third-party costs related to
mobile apps are unquantified because the Department was unable to find
existing data or literature on the subject.
These numbers should be interpreted with caution because they
include significant uncertainty. Limited information exists regarding
the number of third-party websites and mobile apps employed by
government entities. Additionally, little research has been conducted
assessing how government entities use third-party website and mobile
app services.
To estimate costs incurred from third-party website compliance, the
Department used a convenience sub-sample of the full sample of
government entities. This sub-sample includes 106 government entities
and was not stratified to ascertain representativeness among various
government entities. The Department used SortSite inventory reports to
identify third-party websites that provide government services on
behalf of sampled government entities. Counts were then adjusted to
reflect that some third-party websites are used by more than one
government. For each government entity type, the Department calculated
the ratio of third-party websites in the sample to total government
websites in the sample. Across all entity types, the average ratio is
0.042, or 4.2 percent.
The Department reviewed the literature for reputable estimates of
the average cost of modifying a third-party website that provides
government services to the public for WCAG 2.1 AA compliance. In the
absence of existing reputable estimates, the Department opted to use
average government website testing and remediation costs generated in
this study as an approximation. Government website testing and
remediation cost estimates for each government entity type were
multiplied by the third-party to government website ratios to estimate
costs from third-party website compliance with WCAG 2.1 AA.
In aggregate, there are estimated to be 0.04 third-party websites
for every government website. If all costs were passed along to
governments, governments would incur additional costs for remediating
third-party websites equivalent to about 4 percent of the costs to test
and remediate their own websites. The present value of total 10-year
costs incurred from third-party website compliance is estimated to be
$671.7 million at a discount rate of 3 percent and $587.8 at a discount
rate of 7 percent. These values are displayed in Table 26.
Table 26--Projected Total Costs of Remediating Third-Party Websites
[Millions]
------------------------------------------------------------------------
Total costs
Time period (all entities)
------------------------------------------------------------------------
Year 1.................................................. $165.2
Year 2.................................................. 181.9
Year 3.................................................. 112.1
Year 4.................................................. 41.6
Year 5.................................................. 41.6
Year 6.................................................. 41.6
Year 7.................................................. 41.6
Year 8.................................................. 41.6
Year 9.................................................. 41.6
Year 10................................................. 41.6
PV of 10-year costs, 3% discount rate................... 671.7
Annualized costs, 3% discount rate...................... 78.7
PV of 10-year costs, 7% discount rate................... 587.8
Annualized costs, 7% discount rate...................... 83.7
------------------------------------------------------------------------
g. Sensitivity and Uncertainty Analyses of Costs
The Department's cost estimates rely on a variety of assumptions
based on literature and other information that, if changed, could
impact the cost burden to different government entities. To better
understand the uncertainty behind its cost estimates, the Department
performed several sensitivity analyses on key assumptions in its cost
model. A full summary of the Department's high and low-cost estimates
is in Table 28. Other assumptions not altered here also involve a
degree of uncertainty and so these low and high estimates should not be
considered absolute bounds.
For website testing and remediation costs, the Department adjusted
its estimate of the effectiveness of automated accessibility checkers
such as SortSite at identifying accessibility errors. In its primary
analysis, the Department relied on its own manual assessment of several
web pages to estimate the fraction of remediation time that the errors
SortSite caught accounted for among all errors present. This approach
found that SortSite caught errors corresponding to 50.6 percent of the
time needed to remediate a website, leading to a manual adjustment
factor of 1.98. This manual adjustment factor was multiplied by the
remediation time estimated using the SortSite output for each website
in the sample. Vigo, Brown, and Conway (2013), by contrast, found that
SortSite correctly identified 30 percent of the accessibility errors on
a given website.\238\ This finding is not
[[Page 52002]]
necessarily inconsistent with the results of the Department's analysis,
however, since the paper's authors merely count instances of errors,
without considering the relative severity of errors. Nevertheless, the
Department conservatively replicated its analysis using the 30 percent
estimate for SortSite's comprehensiveness, which amounts to an
adjustment factor of 3.33. This altered assumption resulted in a 10-
year total website testing and remediation cost of $19.2 billion at a 3
percent discount rate, which is $7.2 billion more than the primary
estimate of $12.0 billion. The analysis for estimating costs of
remediating third-party websites was replicated using the same altered
assumption of SortSite's comprehensiveness, resulting in a 10-year
total third-party website testing and remediation cost of $1.1 billion.
This is $400 million more than the primary estimate of $672 million.
---------------------------------------------------------------------------
\238\ Markel Vigo et al., Benchmarking Web Accessibility
Evaluation Tools: Measuring the Harm of Sole Reliance on Automated
Tests, International Cross-Disciplinary Conference on Web
Accessibility (May 2013), https://www.researchgate.net/profile/Markel-Vigo/publication/262352732_Benchmarking_web_accessibility_evaluation_tools_Measuring_the_harm_of_sole_reliance_on_automated_tests/links/56333eee08ae911fcd4a99a7/Benchmarking-web-accessibility-evaluation-tools-Measuring-the-harm-of-sole-reliance-on-automated-tests.pdf . A
Perma archive link was unavailable for this citation.
---------------------------------------------------------------------------
The Department also reexamined its assumptions concerning PDFs that
State and local government entities would choose to remediate. In the
primary analysis, it was assumed that only those PDFs that had last
been modified prior to 2012 would be removed or archived rather than
remediated. This assumption resulted in an estimate that 15 percent of
PDFs currently hosted on government websites would be taken down or
archived. To approximate an upper bound on the number of PDFs
government entities would choose to archive, the Department reconducted
its website cost analysis with the assumption that 50 percent of PDFs
on State and local government entities' websites would be archived or
removed rather than remediated. This calculation resulted in website
costs of $11.6 billion discounted at 3 percent over 10 years, $311
million less than the primary estimate of $12.0 billion. Once again,
the analysis for estimating costs of remediating third-party websites
(described in Section VI.A.4.f of this preamble) was replicated using
this altered PDF archival rate, resulting in a 10-year total third-
party website testing and remediation cost of $654 million. This is $17
million less than the primary estimate of $672 million.
For postsecondary course remediation cost, the Department
calculated costs over an increased timeline to generate a low-cost
estimate. In its initial calculations, the Department estimated
disability prevalence using SIPP data, calculated that the majority of
classes will be remediated in the first year following the
implementation of the rule, and determined that any outstanding classes
will be remediated in the second year. However, the prevalence rates
used from SIPP data are higher estimates than estimates from the
American Community Survey (``ACS''). If the true disability prevalence
of the college population is lower than was estimated for these
analyses, then fewer courses will need remediation per year. The
Department found that in a scenario where one third of courses are
remediated per year, the annualized cost at a 3 percent discount rate
is $992 million, $109 million less than its primary estimate.\239\
---------------------------------------------------------------------------
\239\ The Department chose \1/3\ to create a scenario with a
more flexible remediation timeline, which implies that all courses
get remediated within three years instead of two.
---------------------------------------------------------------------------
To generate a high-cost estimate for higher education, the
Department evaluated a higher per-course remediation cost. In its
primary estimates, the Department used data from two studies that
estimated costs to make a course accessible. These studies were
conducted in 2009 and 2014 respectively, and the online landscape of
postsecondary education has changed since then. COVID-19 and the
subsequent distance learning at higher education institutions may have
increased the amount of course content that is offered through online
portals. If this is the case, it is possible that there is more content
that needs to be remediated than there was at the time of the studies
on which the Department bases its course cost estimates, and that
because of that there is less accessible course content.\240\ To
account for this, the Department used the higher estimates for complex
course remediation given in Farr et al. (2009) and the GOALS Cost Case
Study from the NCDAE to estimate a cost of $1,894 per course (compared
with $1,690 in the primary estimate), and an O&M cost of $284 per
course (compared with $253 in the primary estimate). Under these
conditions, the Department found the annualized cost of course content
remediation to be $1.21 billion, $112 million more than its primary
estimates.
---------------------------------------------------------------------------
\240\ Conversely, it is also possible that a shift to online
learning has made the higher education community more aware of web
accessibility issues, and therefore increased the rate of WCAG 2.1
compliance.
---------------------------------------------------------------------------
To estimate class or course remediation costs for elementary and
secondary institutions, the Department made assumptions about the
number of LMSs that students interface with at each grade level. In
addition, the Department had to estimate the average cost to remediate
each of those LMS's content to be compliant with WCAG 2.1 Level AA. The
Department performed a sensitivity analysis on these assumptions to
create upper and lower bounds on cost.
For the upper bound, the Department increased the number of LMSs
that students interact with in each semester. The Department raised the
assumption from 1 LMS to 2 for students in grades K-4, from 7 LMSs to
10 in grades 5-8, and from 14 LMSs to 20 in grades 9-12. In addition,
the Department created a continuum of costs between its low estimate of
$182 and its high estimate of $994, allocating costs that increase
linearly with each subsequent grade level, and effectively raising the
average cost to remediate class or course content. These changes raised
the annualized cost with a 3 percent discount rate from $195 million to
$312 million.
For the lower bound, the Department adjusted the same parameters
downwards. The Department kept the same estimate of one LMS for grades
K-4, decreased the number of LMSs for grades 5-6 from seven to five,
and decreased the number of LMSs for grades 9-12 from 14 to 10. For
class or course remediation costs, the Department halved the estimated
costs to remediate a class for all grades. When applying these changes,
the annualized cost with a 3 percent discount rate decreased from $195
million dollars to $75 million dollars.
The Department conducted sensitivity analyses to assess the mobile
apps cost model by varying the assumption that the cost to test and
modify an existing mobile app for accessibility is equal to 65 percent
of the cost to build an ``average'' mobile app. In the sensitivity
analysis the Department assumed that State and local government
entities mostly control either ``simple'' or ``complex'' mobile apps,
rather than ``average'' mobile apps. Simple mobile apps are less costly
to build than the average mobile app. The expected cost of building a
simple mobile app is estimated to be $50,000, compared with $105,000
for an average mobile app.\241\ The cost of testing and modifying a
simple mobile app for accessibility is assumed to be 65 percent of the
cost to build a simple mobile app, equal to $32,500. Using this
assumption based on simple mobile apps, PV of total mobile app testing
and remediation
[[Page 52003]]
costs decreases from $597.8 million to $285.7 million.
---------------------------------------------------------------------------
\241\ SPD Load, How Much Does It Cost to Develop an App in 2022?
Cost Breakdown, https://spdload.com/blog/app-development-cost/
[https://perma.cc/Y2RM-X7VR].
---------------------------------------------------------------------------
Conversely, complex mobile apps are costlier to build than both
simple mobile apps and the ``average'' mobile app. The expected cost of
building a complex mobile app is $300,000, compared with $105,000 for
the average mobile app.\242\ The cost to test and modify a complex
mobile app for accessibility is assumed to be 65 percent of the cost to
build a complex mobile app, equal to $195,000. Using this assumption
based on complex mobile apps, PV of total mobile app testing and
remediation costs increase from $597.8 million to $1.1 billion.
---------------------------------------------------------------------------
\242\ Id.
---------------------------------------------------------------------------
The parameters changed for each analysis can be found in Table 27,
and the total aggregated lower and higher estimates can be found in
Table 28. Based on the Department's sensitivity analyses, total 10-year
costs discounted at 7 percent would likely be between $18.4 and $29.5
billion.
The Department's sensitivity analysis parameters are presented in
Table 27, and the Department's sensitivity analyses of total costs are
presented in Table 28.
Table 27--Sensitivity Analysis Parameters
------------------------------------------------------------------------
Cost Bound Variations
------------------------------------------------------------------------
Higher education course Lower estimate... Increased remediation
remediation. timeline.
Higher education course Higher estimate.. Higher course cost.
remediation.
Website costs................. Lower estimate... Increased rate of PDF
archival.
Website costs................. Higher estimate.. Lower effectiveness
of automated
accessibility
checkers.
Mobile app costs.............. Lower estimate... Assume government
apps are ``simple.''
Mobile app costs.............. Higher estimate.. Assume government
apps are
``complex.''
Elementary and secondary class Lower estimate... Assume fewer LMS
or course remediation costs. classes or courses,
lower class or
course cost.
Elementary and secondary class Higher estimate.. Assume more LMS
or course remediation costs. classes or courses,
higher class or
course cost.
------------------------------------------------------------------------
Table 28--Sensitivity Analyses of Total Costs
[Millions]
----------------------------------------------------------------------------------------------------------------
Time period Primary High estimate Low estimate
----------------------------------------------------------------------------------------------------------------
Year 1.......................................................... $3,361 $5,462 $3,145
Year 2.......................................................... 3,646 5,935 3,422
Year 3.......................................................... 6,402 8,986 4,030
Year 4.......................................................... 3,270 3,756 2,716
Year 5.......................................................... 1,836 2,485 2,835
Year 6.......................................................... 1,836 2,485 1,743
Year 7.......................................................... 1,836 2,485 1,743
Year 8.......................................................... 1,836 2,485 1,743
Year 9.......................................................... 1,836 2,485 1,743
Year 10......................................................... 1,836 2,485 1,743
PV of 10-year costs, 3% discount rate........................... 24,302 34,420 21,712
Average annualized costs, 3% discount rate...................... 2,849 4,035 2,545
PV of 10-year costs, 7% discount rate........................... 20,724 29,527 18,407
Average annualized costs, 7% discount rate...................... 2,951 4,204 2,621
----------------------------------------------------------------------------------------------------------------
h. Cost to Revenue Comparison
To consider the relative magnitude of the estimated costs of this
proposed regulation, the Department compares the costs to revenues for
State and local government entities. Because the costs for each
government entity type are estimated to be well below 1 percent of
revenues, the Department does not believe the rule will be unduly
burdensome or costly for public entities.\243\ Costs for each type and
size of government entity are estimated to be well below this 1 percent
threshold.
---------------------------------------------------------------------------
\243\ As noted above and as a point of reference, the United
States Small Business Administration advises agencies that a
potential indicator that the impact of a proposed regulation may be
``significant'' is whether the costs exceed 1 percent of the gross
revenues of the entities in a particular sector, although the
threshold may vary based on the particular types of entities at
issue. The Department estimates that the costs of this rulemaking
for each government entity type are far less than 1 percent of
revenues. See Small Bus. Admin., A Guide for Government Agencies:
How to Comply with the Regulatory Flexibility Act 19 (Aug. 2017),
https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH].
---------------------------------------------------------------------------
The Department estimated the proportion of total local government
revenue in each local government entity type and size using the 2012
U.S. Census Bureau's database on individual local government
finances.\244\ To evaluate which government entities continue to be
small, the Department applied the U.S. Census's Bureau's population
growth rates by State to the population numbers in the individual local
government finances data to estimate 2020 population levels.\245\
---------------------------------------------------------------------------
\244\ U.S. Census Bureau, Historical Data (Oct. 2021), https://www.census.gov/programs-surveys/cog/data/historical-data.html
[https://perma.cc/UW25-6JPZ]. The Department was unable to find more
recent data with this level of detail.
\245\ U.S. Census Bureau, Historical Population Change Data
(1910-2020) (Apr. 26, 2021), https://www.census.gov/data/tables/time-series/dec/popchange-data-text.html [https://perma.cc/RYQ3-VX9Q]. Population numbers in the 2012 data are from different years,
so the Department applied a growth rate based on the specified date
for each entity.
---------------------------------------------------------------------------
To calculate population estimates for independent school districts,
the Department used a methodology that is inconsistent with the
population provisions in the proposed rule's regulatory text because
the local government finances data only include enrollment numbers, not
population
[[Page 52004]]
numbers. Detailed information on this methodology can be found in the
full PRIA.
The Department applied these proportions of governments in each
entity type to the total local government revenue estimate from the
U.S. Census Bureau's State and Local Government Finances by Level of
Government and by State: 2020, updated to 2021 dollars.\246\ Table 29
contains the average annualized cost using a 3 percent and 7 percent
discount rate,\247\ 2020 annual revenue estimates, and the cost-to-
revenue ratios for each entity type and size. The costs are less than 1
percent of revenues in every entity type and size combination, so the
Department believes that the costs of this proposed regulation would
not be overly burdensome for the regulated entities.
---------------------------------------------------------------------------
\246\ U.S. Census Bureau, 2020 State & Local Government Finance
Historical Datasets and Tables (Sept. 20, 2022), https://www.census.gov/data/datasets/2020/econ/local/public-use-datasets.html [https://perma.cc/QJM3-N7SG].
\247\ The estimated costs for dependent community colleges are
not included in this table because the Department is unable to
determine how to distribute these entities' costs across the other
types of State and local entities. Additionally, it is unclear if
all public college and university revenue (e.g., tuition and fees)
are included in the revenue recorded for the State or local entities
on which the school is dependent. Finally, the low cost-to-revenue
ratio for the independent community colleges indicate that these
would not increase the cost to revenue above 1 percent for any
entity type and size.
---------------------------------------------------------------------------
Costs for postsecondary institutions were analyzed separately from
other government entities. For public universities, which tend to be
State dependent, the Department has included costs with State
governments to ensure the ratio of costs to revenues is not
underestimated. For community college independent districts, the
Department has revenue data.
---------------------------------------------------------------------------
\248\ See Section 3.9, Cost to Revenue Comparison, in the
accompanying PRIA.
Table 29--Cost-to-Revenue Ratios by Entity Type and Size \248\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
annualized annualized Annual Cost to Cost to
Type of government entity Size cost cost revenue revenue 3% revenue 7%
(millions) 3% (millions) 7% (millions) discount rate discount rate
discount rate discount rate [a] (%) (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
State..................................... Small....................... N/A N/A N/A N/A N/A
State..................................... Large....................... $867 $877 $2,846,972 0.03 0.03
County.................................... Small....................... 20 21 65,044 0.03 0.03
County.................................... Large....................... 126 135 448,212 0.03 0.03
Municipality.............................. Small....................... 342 362 184,539 0.19 0.20
Municipality.............................. Large....................... 100 108 524,589 0.02 0.02
Township.................................. Small....................... 244 257 55,819 0.46 0.48
Township.................................. Large....................... 8 9 12,649 0.07 0.07
Special district.......................... N/A......................... 73 77 278,465 0.03 0.03
School district [b]....................... Small....................... 366 384 330,746 0.12 0.12
School district [b]....................... Large....................... 208 218 311,614 0.07 0.07
Territory................................. Small....................... 0 0 1,243 0.02 0.02
Territory................................. Large....................... 1 1 38,871 0.00 0.00
Public university [c]..................... N/A......................... N/A N/A N/A N/A N/A
Community college [d]..................... N/A......................... 163 166 38,445 0.44 0.45
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] U.S. Census Bureau, 2020 State & Local Government Finance Historical Datasets and Tables (Sept. 2022), https://www.census.gov/data/datasets/2020/econ/local/public-use-datasets.html [https://perma.cc/QJM3-N7SG]. Inflated to 2021 dollars using GDP deflator.
[b] Excludes colleges and universities.
[c] Almost all public universities are State-dependent; costs included in the State entity type.
[d] Census of Governments data include revenue numbers only for independent community colleges. The costs included correspond to the proportion of the
total number of community colleges that are independent.
5. Benefits Analysis
a. Summary of Benefits for Persons With and Without Relevant
Disabilities
Websites and mobile apps are common resources to access government
services, programs, and activities. For example, during a 90-day period
in summer 2022, there were nearly 5 billion visits to Federal
Government websites.\249\ Aggregate data are unavailable for State and
local government entities' websites, but based on the analysis in
Section 2 of the PRIA, the Department estimates there are roughly
109,900 public entity websites, and based on the analysis in Section
4.3.2 of the PRIA, the Department estimates these websites have 22.8
billion annual visits. Unfortunately, services, programs, and
activities that State and local government entities provide online are
not always fully accessible to individuals with disabilities.
Conformance with WCAG 2.1 Level AA would increase availability of these
resources to individuals with disabilities that affect web and mobile
app access (i.e., vision, hearing, cognitive, and manual dexterity
disabilities). These individuals are referred to as ``individuals with
relevant disabilities'' or ``individuals with certain types of
disabilities.'' Conformance would also result in benefits to
individuals without these disabilities because accessible websites
incorporate features that benefit all users, including individuals with
other types of disabilities and individuals who do not have
disabilities.
---------------------------------------------------------------------------
\249\ General Services Administration Digital Analytics Program,
https://analytics.usa.gov/ [https://perma.cc/2YZP-KCMG] (data
retrieved on Aug. 8, 2022). While this rule will not apply to the
Federal Government, this statistic is provided for analogy to show
the proliferation of government services offered online.
---------------------------------------------------------------------------
This section summarizes the benefits of conformance with WCAG 2.1
Level AA for both individuals with and without relevant disabilities.
The Department calculated the primary types of disabilities impacted by
WCAG 2.1 Level AA and prevalence rates for each disability type. The
Department also considered how individuals without relevant
disabilities may benefit. For purposes of this analysis, ``individuals
without relevant disabilities'' are individuals who do not have vision,
hearing, cognitive, or manual dexterity disabilities; these may be
individuals with other disabilities or
[[Page 52005]]
individuals with no disability. The Department then monetized benefits
where applicable. These monetized benefits are predominantly associated
with time savings. The Department estimates that average annualized
benefits will total $8.9 billion, using a 7 percent discount rate, and
$9.3 billion using a 3 percent discount rate. Finally, the Department
qualitatively described additional benefits that could not be
quantified.
b. Types of Disabilities Affected by Accessibility Standards
Accessibility standards can benefit individuals with a wide range
of disabilities, including vision, hearing, cognitive, speech, and
physical disabilities. The Department focused on those with vision,
hearing, cognitive, and manual dexterity disabilities because WCAG 2.1
Level AA success criteria more directly benefit people with these
disability types.\250\ However, the Department emphasizes that benefits
for other disability types are also important and that excluding those
disabilities may underestimate benefits. Additionally, disability
prevalence rates may underestimate the number of people with a
disability due to underreporting. As part of its analysis, the
Department estimated that 19.9 percent of adults have a relevant
disability for purposes of this analysis. Table 30 presents prevalence
rates for each of these four types of disability.
---------------------------------------------------------------------------
\250\ See W3C[supreg], Introduction to Web Accessibility,
https://www.w3.org/WAI/fundamentals/accessibility-intro/ (Mar. 31,
2022) [https://perma.cc/79BA-HLZY].
---------------------------------------------------------------------------
The number of individuals with disabilities impacted by this rule
may be smaller or larger than the numbers shown here. According to the
Pew Research Center, 27 percent of people have a disability, as
compared to the 19.9 percent figure used in this analysis.\251\
Conversely, not all individuals with vision, hearing, cognitive, or
manual dexterity disabilities may be impacted by the proposed
rulemaking. For example, ``cognitive disabilities'' is a broad category
and some people with cognitive disabilities may not experience the same
benefits from web accessibility that others do.
---------------------------------------------------------------------------
\251\ Susannah Fox & Jan Lauren Boyles, Disability in the
Digital Age, Pew Research Center (Aug. 6, 2012), https://www.pewinternet.org/2012/08/06/disability-in-the-digital-age/
[https://perma.cc/9RBM-PD78].
---------------------------------------------------------------------------
The Department recognizes that accessibility can also produce
significant benefits for individuals without relevant disabilities. For
instance, many individuals without physical disabilities enjoy the
benefits of physical accessibility features currently required under
the ADA. For example, curb ramps, other ramps, and doors with
accessible features can be helpful when pushing strollers or dollies.
In the web context, experts have recognized that accessible websites
are generally better organized and easier to use even for persons
without relevant disabilities.\252\ This can result in benefits to the
general public. The population of persons without relevant disabilities
is derived as the remainder of the population once individuals with the
four disabilities discussed above are removed. The Department estimates
that there are 202.3 million Americans without relevant disabilities.
---------------------------------------------------------------------------
\252\ See W3C[supreg], The Business Case for Digital
Accessibility (Nov. 9, 2018), https://www.w3.org/WAI/business-case/
[https://perma.cc/K5AF-UYWS].
---------------------------------------------------------------------------
Companions \253\ may also benefit from this proposed rulemaking
because they will not need to spend as much time assisting with
activities that an individual with a disability can now perform on
their own. Companions can then spend this time assisting with other
tasks or engaging in other activities. Estimates on the number of
companions vary based on definitions, but according to the AARP, there
are 53 million ``unpaid caregivers'' in the United States.\254\ This
number includes companions to those with disabilities other than
disabilities applicable to web accessibility. There are also 4.7
million direct care workers in the United States.\255\ Benefits to
companions are not quantified, but they are discussed further in
Section VI.A.5.d of this preamble.
---------------------------------------------------------------------------
\253\ A companion may refer to a family member, friend,
caregiver, or anyone else providing assistance.
\254\ AARP National Alliance for Caregiving, Caregiving in the
United States 2020, AARP (May 14, 2020), https://www.aarp.org/ppi/info-2020/caregiving-in-the-united-states.html [https://perma.cc/QBQ2-L94W]. The term ``unpaid caregiver'' as used in the AARP report
is comparable to this analysis' use of the term companion to refer
to family members, friends, caregivers, or anyone else providing
assistance.
\255\ PHI, Understanding the Direct Care Workforce, https://www.phinational.org/policy-research/key-facts-faq/ [https://perma.cc/9DNN-XL23].
Table 30--Disability Prevalence Counts, SIPP 2021
----------------------------------------------------------------------------------------------------------------
Cumulative Cumulative
Disability type Prevalence Number prevalence number [a]
rate (%) (millions) rate [a] (%) (millions)
----------------------------------------------------------------------------------------------------------------
Vision.......................................... 4.8 12.2 4.8 12.2
Hearing......................................... 7.5 19.0 6.1 15.3
Cognitive....................................... 10.1 25.5 6.7 16.9
Manual dexterity................................ 5.7 14.3 2.3 5.7
None of the above............................... 80.1 202.3 80.1 202.3
----------------------------------------------------------------------------------------------------------------
See U.S. Census Bureau, Survey of Income and Program Participation--About this Survey (Aug. 2022), https://www.census.gov/programs-surveys/sipp/about.html [https://perma.cc/Z7UH-6MJ8]; see also Section 4.2, Types of
Disabilities Affected by Accessibility Standards, in the accompanying PRIA for more details on the
Department's findings.
[a] Individuals with multiple qualifying disabilities are counted within the first disability category listed
(e.g., if someone has a cognitive and vision disability, they are included in the vision disability prevalence
rate).
c. Monetized Benefits
The Department monetized five benefits of accessible public entity
websites and mobile apps (Figure 1). The Department's conclusions are
described in this summary, and more detail about its methodology and
assumptions are included in Section 4.3, Monetized Benefits, in the
accompanying PRIA. The five monetized benefits and their estimated
monetary value are:
Time savings for current users of State and local
government entities' websites ($4.2 billion per year),
Time savings for those who switch modes of access (i.e.,
switch from other modes of accessing State and local government
entities' services, programs,
[[Page 52006]]
and activities such as phone or mail to the public entities' website)
or begin to participate (did not previously partake in the State and
local government entities' services, programs, or activities) ($917.4
million per year),
Time savings for current mobile app users ($390.1 million
per year),
Time savings for students and their parents ($5.1 billion
per year), and
Earnings from additional educational attainment ($262.8
million per year).\256\
---------------------------------------------------------------------------
\256\ Even after the implementation period, the size of the
annual benefit increases over time as more cohorts graduate with
additional educational attainment. $262.8 million represents the
annual benefit to one graduating class.
---------------------------------------------------------------------------
All five types of benefits are applicable for those with a relevant
disability. For individuals without a relevant disability, benefits are
limited to time savings for current users of State and local government
entities' websites, current users of mobile apps, and educational time
savings. For State and local government entities, monetized benefits
include time savings from reduced contacts (i.e., fewer interactions
assisting people with disabilities). After calculating current benefit
levels for each benefit type, the Department projected benefits over a
10-year period and took into consideration the implementation period.
The Department also conducted sensitivity analyses and calculated
benefits for regulatory alternatives.
In total, the Department estimated benefits of $8.9 billion per
year on an average annualized basis, using a 7 percent discount rate.
On a per capita basis, this equates to $35 per adult in the United
States.\257\
[GRAPHIC] [TIFF OMITTED] TP04AU23.001
i. Projected 10-Year Benefits
During the implementation period, benefits will be lower. The
proposed rule allows either two or three years for implementation,
depending on the public entity's population. With the exclusion of
educational benefits (discussed below), the Department believes
benefits will fully accrue beginning in Year 4 but that some benefits
will exist during the three implementation years as websites and mobile
apps become more accessible. The Department assumes that in Year 1
benefits are 27 percent of the level of benefits once compliance is
complete; in Year 2 benefits increase to 53 percent; and in Year 3
benefits increase to 80 percent (Table 31).\258\
---------------------------------------------------------------------------
\257\ The Census Bureau estimates 257.9 million adults in the
United States in 2020. U.S. Census Bureau, National Demographic
Analysis Tables: 2020 (Mar. 2022), https://www.census.gov/data/tables/2020/demo/popest/2020-demographic-analysis-tables.html
[https://perma.cc/7WHV-7CPM].
\258\ The Department assumed benefits accrue at a steady rate
over the implementation period. For example, for large entities,
benefits increase from 33 percent in Year 1, to 66 percent in Year
2, and 100 percent in Year 3. For small entities, benefits increase
from 25 percent in Year 1, to 50 percent in Year 2, to 75 percent in
Year 3, and 100 percent in Year 4. The benefits will be 100 percent
accrued in Year 3 for large entities and Year 4 for small entities
because at the beginning of those years, the implementation period
will be over. These accrual rates are weighted by the number of
government websites for small versus large governments. Eighty
percent of websites are for small entities, despite websites being
less common among small entities, because the number of small
governments is much larger than the number of large governments.
---------------------------------------------------------------------------
For course remediation time savings, the Department assumed no
benefits would accrue until the implementation period is complete
because courses will not be remediated until remediation is
requested,\259\ and it is unknown in advance which courses will need to
be remediated. Therefore, in Year 3, once small entities are affected,
63 percent of potential benefits for postsecondary students will accrue
and 53 percent of potential benefits for elementary and secondary
students will accrue. In Year 4, full benefits are reached.\260\
---------------------------------------------------------------------------
\259\ There are circumstances where courses must be remediated
in the absence of a request, such as where an institution should
know about the need for accessible materials. This is described in
detail in the corresponding section of the preamble.
\260\ The Department does not know which institutions are
associated with small or large governments. Therefore, the
Department assumed that four-year institutions are large entities
and community colleges are small entities. For elementary and
secondary schools, the Department used the share of students in
independent school districts who are in small versus large
districts.
---------------------------------------------------------------------------
[[Page 52007]]
For educational attainment, benefits do not accrue until after the
additional education is obtained. For simplicity, benefits are assumed
to begin in Year 5, after two years of implementation followed by two
years of additional educational attainment. The amount of time needed
to obtain additional education varies based on the degree, but the
Department believes two years is an appropriate average. For example,
to move from a high school degree to some college or an associate's
degree would take approximately two years. Similarly, to move from some
college or an associate's degree to a bachelor's degree would also take
approximately two years. The Department only incorporated two years of
implementation because most public colleges are under the purview of
large governments with a two-year implementation period. Average
annualized educational attainment benefits only include additional
earnings over this 10-year period, not over the course of a lifetime.
Table 31--Timing of Benefits
[Millions]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Elementary/ Elementary/ Education
Total benefit Non-education Non-education Postsec. Postsec. secondary secondary Educational attainment attainment
Year (million) accrual rate benefits accrual rate benefits \a\ accrual rate benefits \a\ accrual benefits
(%) (millions) (%) (million) (%) (million) (million)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1................................ $1,619 27 $1,619 0 $0 0% $0 0%...................... $0.0
Year 2................................ 3,239 53 3,239 0 0 0 0 0%...................... 0.0
Year 3................................ 7,756 80 4,858 63 1,447 53 1,452 0%...................... 0.0
Year 4................................ 11,125 100 6,068 100 2,303 100 2,754 0%...................... 0.0
Year 5................................ 11,387 100 6,068 100 2,303 100 2,754 1 cohort................ 263
Year 6................................ 11,650 100 6,068 100 2,303 100 2,754 2 cohorts............... 526
Year 7................................ 11,913 100 6,068 100 2,303 100 2,754 3 cohorts............... 788
Year 8................................ 12,176 100 6,068 100 2,303 100 2,754 4 cohorts............... 1,051
Year 9................................ 12,439 100 6,068 100 2,303 100 2,754 5 cohorts............... 1,314
Year 10............................... 12,702 100 6,068 100 2,303 100 2,754 6 cohorts............... 1,577
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Benefits may begin accruing during the implementation period, but for simplicity, the Department excluded benefits here for these years. The Department only incorporated two years of
implementation because most public colleges are under the purview of large governments with a two-year implementation period.
ii. Sensitivity Analysis of Benefits
The benefits calculations incorporate some assumptions and sources
of uncertainty. Therefore, the Department has conducted sensitivity
analyses on select assumptions to demonstrate the degree of uncertainty
in the estimates. Other assumptions not altered here also involve a
degree of uncertainty and so these low and high estimates should not be
considered absolute bounds.
Average annualized benefits using a 7 percent discount rate are
estimated to be $8.9 billion under the primary conditions. Using the
low estimate assumptions, they are $6.4 billion and under the high
estimate assumptions they are $14.7 billion (Table 32). The variations
used for each benefit type are shown in Table 33.
Table 32--Average Annualized Benefits Sensitivity Analysis
[Millions] \a\
----------------------------------------------------------------------------------------------------------------
Beneficiary Low estimate Primary High estimate
----------------------------------------------------------------------------------------------------------------
Time savings--current users..................................... $2,688.7 $3,416.1 7,284.1
Time savings--new users......................................... 170.3 753.5 1,177.3
Time savings--governments....................................... 83.6 493.3 578.1
Time savings--mobile apps....................................... 252.1 320.4 683.1
Time savings--education......................................... 3,043.7 3,504.4 3,803.5
Educational attainment.......................................... 141.2 449.5 1,167.5
-----------------------------------------------
Total....................................................... 6,379.7 8,937.2 14,693.6
----------------------------------------------------------------------------------------------------------------
\a\ 10-Year average annualized benefits, 7 percent discount rate.
Table 33--Assumptions and Data Sources Varied for Sensitivity Analysis
------------------------------------------------------------------------
Beneficiary Estimate type Variations
------------------------------------------------------------------------
Time savings--current users... Low.............. ACS data for
prevalence rates,
instead of SIPP.
Time savings--current users... High............. Same time reduction
(24%) for all
disabilities.
Time savings--current users... High............. Exclude ``n/a'' from
SEMRUSH output.
Time savings--new users....... Low.............. ACS data for
prevalence rates,
instead of SIPP.
Time savings--new users....... Low.............. Usage gap only closes
by 75%.
Time savings--new users....... Low.............. Lower transaction
time (19 minutes
instead of 25).
Time savings--new users....... Low.............. Fewer transactions (6
instead of 8).
Time savings--new users....... High............. Higher transaction
time (31 minutes
instead of 25).
Time savings--new users....... High............. More transactions (10
instead of 8).
Time savings--governments..... Low.............. ACS data for
prevalence rates,
instead of SIPP.
Time savings--governments..... Low.............. Usage gap only closes
by 75%.
Time savings--governments..... Low.............. Lower transaction
time (7.5 minutes
instead of 10).
Time savings--governments..... Low.............. Fewer transactions
(7.5 instead of 6).
Time savings--governments..... High............. Higher transaction
time (12.5 minutes
instead of 10).
Time savings--governments..... High............. More transactions
(4.5 instead of 6).
Time savings--mobile apps..... Low.............. ACS data for
prevalence rates,
instead of SIPP.
[[Page 52008]]
Time savings--mobile apps..... High............. Same time reduction
(24%) for all
disabilities.
Time savings--mobile apps..... High............. Exclude ``n/a'' from
SEMRUSH output.
Time savings--education....... Low.............. ACS data for
prevalence rates,
instead of SIPP.
Time savings--education....... High............. Same time reduction
(24%) for all
disabilities.
Educational attainment........ Low.............. ACS data for
prevalence rates,
instead of SIPP.
Educational attainment........ Low.............. Smaller share of
achievement gap
closed.
Educational attainment........ High............. Benefits begin in
Year 3, instead of
Year 5.
Educational attainment........ High............. Larger share of
achievement gap
closed.
------------------------------------------------------------------------
For current website users, the Department altered three
assumptions--one for the low estimate and two for the high estimate.
First, disability prevalence rates are much lower using ACS data than
SIPP data. As explained in Section 2.2 of the accompanying PRIA, the
Department believes the SIPP estimates are more appropriate, but ACS
numbers are used here for sensitivity. Using ACS data reduces the
average annual benefits from $3.4 to $2.7 billion. For the high
estimate, rather than assuming the time reduction for individuals with
hearing, cognitive, or manual dexterity is equivalent to individuals
without a hearing disability, the Department assumes the reduction is
equivalent to individuals with vision disabilities. The Department also
excluded websites for which SEMRUSH, an online marketing and research
tool,\261\ did not provide data, rather than assuming values of zero.
These two variations increase benefits from $3.4 billion to $7.3
billion.
---------------------------------------------------------------------------
\261\ For information on this application, see https://www.semrush.com/features/ [https://perma.cc/ZZY5-U42Z].
---------------------------------------------------------------------------
For new website users and cost savings to governments, the
Department altered four assumptions. First, once again, ACS prevalence
rates were used in lieu of SIPP estimates. Second, rather than assuming
website usage becomes equivalent for individuals with and without
relevant disabilities, the Department assumed this gap only closes by
75 percent. Third, the average time spent per transaction was reduced
or increased by 25 percent for the low estimate and high estimate,
respectively. Fourth, the average number of transactions per year was
reduced or increased by 25 percent for the low estimate and high
estimate, respectively. Incorporating these alternative assumptions
reduces the benefits for new users to $170.3 million when the
transactions are reduced or increases the benefits to $1.2 billion when
the transactions are increased, from $753.5 million. For cost savings
to governments, benefits decrease to $83.6 million when transactions
are reduced or increase to $578.1 million when the transactions are
increased, from $493.3 million.
For mobile app users, the Department altered three assumptions.
These are the same assumptions that were discussed above for current
website users (ACS prevalence data, time reduction for individuals with
other disabilities, and exclusion of websites not analyzed by SEMRUSH).
After making these calculations, benefits either decrease to $252.1
million or increase to $683.1 million from $320.4 million.
For time savings for students and parents, the Department altered
two assumptions. The low estimate uses ACS data for prevalence rates
instead of SIPP. The high estimate uses a 24 percent time savings for
those with hearing, cognitive, and manual dexterity disabilities
instead of 21 percent. After making these calculations, benefits
decrease to $3.0 billion or increase to $3.8 billion from $3.5 billion.
For benefits of additional educational attainment, the Department
altered three assumptions. First, ACS prevalence rates were used
instead of SIPP. Second, benefits begin to accrue in Year 3 rather than
Year 5. Third, the Department changed the share of the educational
achievement gap that would be closed from 10 percent to 5 and 15
percent. After making these calculations, benefits decrease to $141.2
million or increase to $1.2 billion from $449.5 million.
d. Unquantified Benefits
This rulemaking is being promulgated under the ADA--a Federal civil
rights law. Congress stated that a purpose of the ADA is ``to provide a
clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.'' \262\ This
proposed rule is intended to further the ADA's broad purpose by helping
to eliminate discrimination against people with disabilities in public
entities' web content and mobile apps that are made available to the
public or are used to offer their services, programs, and activities.
Access to such services, programs, and activities is critical to
furthering the Nation's goal, as articulated in the ADA, to ensure
``equality of opportunity, full participation, independent living, and
economic self-sufficiency'' for people with disabilities.\263\ This
access is also critical to promoting the exercise of fundamental
constitutional rights, such as the rights to freedom of speech,
assembly, association, petitioning, and due process of law. This
proposed rule, therefore, implicates benefits like dignity,
independence, and advancement of civil and constitutional rights for
people with disabilities. Such benefits can be difficult or impossible
to quantify yet provide tremendous benefit to society. The January 20,
2021, Presidential Memorandum titled ``Modernizing Regulatory Review''
\264\ states that the regulatory review process should fully account
for regulatory benefits that are difficult or impossible to quantify.
Many of the benefits in this proposed rule are exactly the type of
benefits contemplated by the Presidential Memorandum.
---------------------------------------------------------------------------
\262\ 42 U.S.C. 12101(b)(1).
\263\ Id. 12101(a)(7).
\264\ 86 FR 7223 (Jan. 20, 2021).
---------------------------------------------------------------------------
These benefits are central to this proposed rule's potential impact
as they include concepts inherent to any civil rights law--like
equality--that will be felt throughout society and personally by
individuals with disabilities. Consider, for example, how even a
routine example of access to a web-based form could impact a person
with a disability. When the online form is accessible, the person with
a disability can complete the form (1) at any time they please, even
after normal business hours; (2) on their own; (3) without needing to
share potentially private information with someone else; and 4)
quickly, because they would not need to coordinate a time to complete
the form with a companion. Importantly, this is the experience people
without relevant disabilities have when accessing online government
services. This proposed rule is intended to ensure that people with
[[Page 52009]]
disabilities have the same opportunity to participate in and receive
the benefits of the services, programs, or activities that State and
local government entities make available to members of the public
online.
There are many benefits of this proposed rule--like equality and
dignity--that have not been monetized in the PRIA due to limited data
availability and inherent difficulty to quantify. Those benefits are
discussed here qualitatively. The Department requests comments and data
that could assist in quantifying these important benefits so that the
Department can also represent them in a way consistent with this
proposed rule's costs. The Department recognizes the significant
benefits of this rule and the impact the rule will have on the everyday
lives of people with disabilities. Thus, the Department seeks the
public's assistance in better quantifying the benefits that are
discussed qualitatively in this section.
This section's description of the proposed rule's unquantified
benefits first discusses benefits to individuals, followed by benefits
to State and local government entities.
Benefits to individuals include, among others:
[cir] Increased independence, flexibility, and dignity;
[cir] Increased privacy;
[cir] Reduced frustration;
[cir] Decreased assistance by companions;
[cir] Increased program participation; and
[cir] Increased civic engagement and inclusion.
Benefits to governments include, among others:
[cir] Increased certainty about the applicable technical standard;
and
[cir] Potential reduction in litigation.
i. Increased Independence, Flexibility, and Dignity
Among the most impactful benefits of this rulemaking are greater
independence, flexibility, and dignity for people with disabilities.
These unquantified benefits will extend beyond just people with
disabilities--many other individuals will benefit from more accessible
websites, as described in the PRIA. These benefits are also among the
most difficult to quantify, given that they will be felt uniquely by
each person and are often experienced in many intangible aspects of a
person's life. Because of this, the Department was unable to quantify
the monetary benefits of increased independence, flexibility, and
dignity that will result from this rulemaking. These unquantified
benefits are thus briefly described here. This inability to quantify
these benefits does not suggest that the Department considers them any
less important.
Accessible public entity websites and mobile apps will enable more
people with disabilities to independently access State or local
government entities' services, programs, and activities. People with
disabilities will be able to directly access websites providing
essential governmental information and services, without needing to
rely on a companion to obtain information and interact with websites
and mobile apps. For example, people with disabilities will be able to
independently submit forms and complete transactions, request critical
public services, communicate more easily with their local public
officials, and apply for governmental benefits. The ability to do each
of these tasks independently, without paying an assistant or asking for
a companion's assistance, creates a substantial benefit. Additionally,
online processing with status updates, automated notifications, and
automated reminders generates time savings and convenience that those
with disabilities will be better able to access when they can
independently enroll in government services through websites as a
result of this rule. People with disabilities will thus be able to
exercise more independence and control over their interactions with
State or local government entities, which are unquantified benefits
that will accrue from this rulemaking.
Further, this rulemaking will provide increased flexibility for
people with disabilities. This is another benefit that is difficult to
quantify, so the Department describes it here. Because of this
rulemaking, people with disabilities will be better able to access
State or local government entities' services, programs, or activities
on their own time and at their convenience, without needing to wait for
assistance from a companion or a State or local government entity's
employee. The ability to conduct certain transactions on a public
entity's website, such as paying a utility bill, renewing a business
license, or requesting a special trash pickup, gives individuals the
ability to conduct these transactions at a time most convenient to
them. This greater flexibility should lead to overall improved use of a
person's time, as measured by their preferences (thereby enhancing what
economists refer to as utility). This greater flexibility could also
result in cost savings to individuals with disabilities who might have
previously paid an assistant or sought the help of a companion to
conduct these transactions. Additionally, when websites are
inaccessible, people with disabilities might have to make separate
arrangements to conduct a transaction by taking time off work or
arranging transportation. Because of greater website accessibility,
people with disabilities can schedule these transactions or search for
information at a time and place most convenient for them, which results
in increased benefits.
Finally, individuals with disabilities will benefit from the
dignity that is associated with greater independence and flexibility.
This is another benefit that is difficult to quantify, so the
Department has included it as an unquantified benefit that will result
from this rulemaking. When individuals with relevant disabilities do
not need to rely on others to conduct transactions and access services,
programs, and activities, they are able to act with the independence
and flexibility that individuals without relevant disabilities enjoy,
which results in greater feelings of dignity. The knowledge that
websites and mobile apps are designed to be inclusive of individuals
with disabilities can give people with disabilities a greater sense of
dignity rooted in the knowledge that their lives are valued and
respected, and that they too are entitled to receive the benefits of
State or local government entities' services, programs, and activities,
without needing to rely on others. The Department was unable to
quantify the monetary value of this benefit, but the Department expects
individuals with disabilities to benefit from greater dignity as a
result of this rulemaking. This benefit is also associated with a
greater sense of confidence, self-worth, empowerment, and fairness,
which are also benefits that will accrue as a result of this
rulemaking.
ii. Increased Privacy
Accessible websites and mobile apps allow individuals with
disabilities to conduct activities independently, without unnecessarily
disclosing potentially private information such as banking details,
Social Security numbers, and health information to other people. This
is because when individuals with disabilities are able to use an
accessible website or mobile app, they can rely on security features to
convey information online, rather than potentially sharing information
with others, such as companions or public entities' employees. Without
accessible websites, people with certain types of disabilities may need
to share this sensitive information with others
[[Page 52010]]
unnecessarily, which could result in identity theft or misuse of their
personal information. Additionally, privacy protects individual
autonomy and has inherent value. Even the prospect of identity theft
may result in people with disabilities sharing less information or
needing to take additional measures to protect themselves from having
their information stolen. Because of this, there is a benefit that is
difficult to quantify in people with disabilities being able to safely
and privately conduct important transactions on the web, such as for
taxes, healthcare, and benefits applications. The increased privacy and
assurances that information will be kept safe online will benefit
people with relevant disabilities, though the Department was unable to
quantitatively calculate this benefit.
Further, another privacy benefit of this rulemaking is that people
with relevant disabilities will have greater access to community
resources that require sharing and receiving private information.
Sometimes sensitive information may need to be discussed, such as
information about physical health, mental health, sexual history,
substance use, domestic violence, or sexual assault. When websites are
more accessible, people with disabilities will be able to share this
information using things like online forms and messaging systems, which
reduces the likelihood that an individual with a disability will need
to disclose this personal information unnecessarily to a companion or
on the phone in the presence of others. Additionally, if people with
relevant disabilities can access websites independently, they may be
able to seek out community resources without needing to involve a
companion or a State or local government entity's employee
unnecessarily, which enhances the ability of people with these
disabilities to privately locate information. For example, if a person
with a disability is seeking to privately locate resources offered by a
public entity that would enable them to leave an abusive relationship
safely, accessible websites will allow them to search for information
with greater privacy than seeking out resources in person, on the
phone, or by mail, which they may not be able to do without seeking
assistance from, or risking being detected by, their abuser. These
benefits were not calculated quantitatively due to the difficulty of
placing a value on added privacy, but the Department anticipates people
with disabilities would nonetheless greatly benefit from the privacy
implications of this rule.
iii. Reduced Frustration
Potentially in addition to the significant unquantified benefits
discussed above, another impactful benefit of this rulemaking that may
be difficult to quantify is reduced frustration for people with
disabilities. Inaccessible websites and mobile apps create significant
frustration for individuals with certain types of disabilities who are
unable to access information or complete certain tasks. In addition to
the inconvenience of not being able to complete a task, this
frustration can lead to a lower-quality user experience. For example,
Pascual et al. (2014) assessed the moods of sighted, low vision, and
blind users while using accessible and inaccessible websites and found
greater satisfaction with accessible websites.\265\ This frustration
appears to be particularly common for individuals with disabilities.
Lazar et al. (2007) documented the frustrations users who are blind
experience when using screen readers, finding, for example, that on
average users reported losing 30.4 percent of time due to inaccessible
content.\266\ Furthermore, some people with vision disabilities may be
unable to complete a required task altogether. For example, if an
individual with low vision is filling out an online form but the color
contrast between the foreground and background on the ``submit'' button
is not sufficient, or if an individual who is blind is filling out a
form that is not coded so that it can be used with a screen reader,
they may be unable to submit their completed form. The inability to
complete a task independently or without any barriers can be extremely
frustrating and significantly reduce the overall quality of the user
experience. The frustration that individuals with disabilities
experience while accessing services, programs, and activities that
public entities offer on their websites and mobile apps would be
significantly reduced if the content was made accessible.
---------------------------------------------------------------------------
\265\ Afra Pascual et al., Impact of Accessibility Barriers on
the Mood of Blind, Low-Vision and Sighted Users, 27 Procedia Comput.
Sci. 431, 440 (2014), https://repositori.udl.cat/bitstream/handle/10459.1/47973/020714.pdf?sequence=1 [https://perma.cc/4P62-B42X].
\266\ Jonathan Lazar et al., What Frustrates Screen Reader Users
on the Web: A Study of 100 Blind Users, 22(3) Int'l J. of Human-
Comput. Interaction 247-269 (2007), https://web.archive.org/web/
20100612034800id_/http://triton.towson.edu/~jlazar/
IJHCI_blind_user_frustration.pdf [https://perma.cc/29PN-45GR].
---------------------------------------------------------------------------
It is difficult to quantify this reduction in frustration in
monetary costs, but it may already partially be captured in the
quantitative estimates framed above as time savings. The Department
believes the ability to complete tasks and engage with the services,
programs, and activities offered by public entities on websites and
mobile apps can make a significant improvement in the quality of the
lives of people with relevant disabilities by reducing the frustration
they experience.
iv. Decreased Assistance by Companions
In addition to the significant benefits discussed above, when
individuals with disabilities are able to access websites and mobile
apps independently instead of relying on a companion for assistance,
both individuals with disabilities and their companions will benefit in
other ways that are difficult to quantify.
If people with disabilities previously relied on supports such as
family members or friends to perform these tasks, the quality of these
relationships may be improved. If a person with a disability no longer
needs to request assistance, they can spend that time together with
their loved ones socializing or doing activities that they prefer,
instead of more mundane tasks like filling out tax forms. People with
relevant disabilities will have an increased opportunity to relate to
their companions as equals, rather than needing to assume a dependent
role in their relationships when they need help from others to complete
tasks online. Requests for assistance, and the manner in which those
requests are fulfilled by others, can sometimes cause stress or
friction in interpersonal relationships; when individuals can complete
tasks independently, those strains on relationships may be reduced.
If people with relevant disabilities previously paid companions to
assist them with online tasks, they will be able to save or spend this
money as they choose. They will also be able to save the time and
effort associated with finding paid companions who are willing and able
to assist with intermittent, often low-paid work.
If State agencies were providing a personal care assistant or home
health aide to assist an individual with a disability, it is possible
that some of that companion's time could be reallocated to assist a
different person with a disability, because the same amount of
assistance would not be needed to complete tasks online. This could
reduce government spending for home- and community-based services. It
may also increase the number of direct care workers who are available
to assist people with disabilities.
[[Page 52011]]
Companions will also benefit when they do not need to provide
assistance. Family members or friends will be able to do other things
with the time that they would have spent helping someone with a
disability. These may be activities that they enjoy more, that earn
income, or that benefit society in other ways. Paid companions will be
able to spend their time on other tasks such as assisting with bathing,
toileting, or eating. All of these benefits are difficult to
quantitatively calculate, but they are nonetheless benefits that would
accrue from the rule.
v. Increased Program Participation
Section 4.3 of the PRIA indirectly quantified the benefits of
increased access to services, programs, and activities by calculating
the benefit from people changing how they access those services to
using websites and mobile apps, which the Department referred to as
switching modes. However, the Department believes that there are
unquantified benefits associated with increased program participation
that are difficult to quantify, which are described briefly here.
Inaccessible websites may prevent persons with relevant
disabilities from accessing information or using State or local
government services, programs, and activities that others without
relevant disabilities have access to online. While people with
disabilities may nonetheless access government services, programs, and
activities despite barriers due to inaccessible websites, there will be
other times when people with disabilities are too discouraged by these
barriers and thus do not participate in services, programs, and
activities. This rulemaking will reduce those barriers to access, which
will result in fewer individuals with disabilities being deterred from
participating in State or local government services, programs, or
activities. Further, there may be some State or local government
services, programs, or activities that individuals with disabilities
would simply not have been aware of due to an inaccessible website,
that they may now choose to participate in once they have access to the
website or mobile app providing those services. This could result in a
benefit of increased program participation, which will allow people
with relevant disabilities to take advantage of services, programs, or
activities that could improve their lives. The Department believes
there is great intangible benefit to people with disabilities being
able to connect to services, which will result in greater feelings of
engagement and belonging in the community. There will also be a
tangible benefit to increased program participation that will likely
reduce inequality. For example, increased program participation could
result in increased benefit payouts, sidewalk repairs, and trash
pickups for people with disabilities, which would reduce inequality
between people with disabilities and people without relevant
disabilities.
vi. Increased Civic Engagement and Inclusion
Increased program participation in many civic activities will
result in an unquantified benefit of greater community involvement,
which will allow people with relevant disabilities to advocate for
themselves and others and participate more actively in the direction of
their communities. For example, if more people with disabilities can
independently access information about proposed legislative and policy
changes and contact local civic leadership about their views, they
might be more likely to become actively involved in civic activities
within their communities. Further, they may be able to access
information to inform their democratic participation, such as by
locating election resources and procedures for accessible voting. By
facilitating this kind of civic engagement, this rule will promote the
exercise of fundamental constitutional rights, such as the rights to
freedom of speech, assembly, association, and petitioning. Aside from
these benefits, governments also provide opportunities for social
engagement, recreation, and entertainment, which will further enable
people with relevant disabilities to feel more engaged and connected
with their communities. This engagement is a benefit both to people
with these disabilities and to people without relevant disabilities who
will be able to connect with others in their community more easily. All
of these benefits are difficult to quantify monetarily, but the
Department nonetheless believes they will result in significant
benefits for people with disabilities and for American communities.
vii. Increased Certainty About What Constitutes an Accessible Website
Under the ADA and Potential Reduction in Litigation
Although the ADA applies to the services, programs, and activities
that State and local government entities offer via the web, the ADA's
implementing regulations currently do not include specific technical
standards. The Department has consistently heard from public entities
that they desire guidance on how to specifically comply with the ADA in
this context. Adopting WCAG 2.1 Level AA as the technical standard for
web and mobile app accessibility will reduce confusion and uncertainty
by providing clear rules to public entities regarding how to make the
services, programs, and activities they offer to the public via their
websites and mobile apps accessible. Although the resulting increased
certainty from adopting a technical standard is difficult to quantify,
the Department believes it is an important benefit that will make
public entities more confident in understanding and complying with
their ADA obligations.
Further, increased certainty regarding how to make websites and
mobile apps accessible may reduce litigation costs for public entities.
Similar to how specific standards in the physical environment enable
businesses to identify and resolve accessibility issues, the adoption
of WCAG 2.1 Level AA as a technical standard will enable public
entities to determine if their websites or mobile apps are out of
compliance with the ADA and resolve any instances of noncompliance,
resulting in greater accessibility without litigation. The Department
recognizes that more specific technical standards could lead to an
increase in litigation as there will be a clearer way to demonstrate
that public entities are not in compliance. However, the ability to
more easily determine noncompliance will allow the public entity to
proactively resolve any compliance issues. Thus, although it is
difficult to know the exact impact that a clear technical standard will
have on total litigation costs, the Department believes that the
potential for reduced litigation costs is a significant benefit for
public entities that should be accounted for in this analysis.
6. Costs and Benefits of Regulatory Alternatives
The Department estimated costs and benefits for several possible
alternatives to the proposed rule. These alternatives are described in
Table 34, and a full explanation of the Department's methodology can be
found in Section 5, Regulatory Alternatives, of the accompanying PRIA.
[[Page 52012]]
Table 34--Regulatory Alternatives Considered \267\
------------------------------------------------------------------------
Stringency Alternative
------------------------------------------------------------------------
Less stringent.................... 3 years for implementation for large
entities; 4 years for
implementation for small entities.
Less stringent.................... Conformance with WCAG 2.1 Level A
required.
Less stringent.................... Conformance with WCAG 2.0 Level AA
required.
Rule as Proposed.................. Conformance with WCAG 2.1 Level AA
required.
More stringent.................... 1 year for implementation for all
entities.
More stringent.................... 1 year for implementation for large
entities; 3 years for
implementation for small entities.
More stringent.................... Conformance with WCAG 2.1 Level AAA
required.
------------------------------------------------------------------------
a. Costs of Regulatory Alternatives
To estimate the impact to website, mobile app, and course
remediation costs of lengthening the required implementation timeline,
the Department adjusted its assumptions about the pace at which
entities would incur initial testing and remediation costs. In this
analysis, the Department projected 10-year costs assuming large
entities would incur 33 percent of their initial costs in each of the
first three years and small entities would incur 25 percent of their
initial costs in each of the first four years after the promulgation of
the rule.
---------------------------------------------------------------------------
\267\ See Section 5, Regulatory Alternatives, in the
accompanying PRIA for the Department's methodology.
---------------------------------------------------------------------------
To estimate the costs of requiring conformance only with WCAG 2.1
Level A, the Department duplicated its website cost methodology while
omitting from consideration any errors that violate WCAG 2.1 Level AA
success criteria only. Accessibility errors that violated both WCAG 2.1
Level A and WCAG 2.1 Level AA success criteria were retained.
WCAG 2.1 introduced 12 new success criteria for WCAG 2.1 Levels A
and AA.\268\ To estimate the costs of requiring WCAG 2.0 Level AA
rather than WCAG 2.1 Level AA standards, the Department replicated its
website cost methodology while omitting any errors classified under one
or more of these new success criteria.
---------------------------------------------------------------------------
\268\ These are standards 1.3.4, 1.3.5, 1.4.10, 1.4.11, 1.4.12,
1.4.13, 2.1.4, 2.5.1, 2.5.2, 2.5.3, 2.5.4, and 4.1.3. More
information is available at: W3C[supreg], What's New in WCAG 2.1
(Aug. 13, 2020), https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
---------------------------------------------------------------------------
To estimate the costs of shortening the implementation timeline for
the proposed rule to one year for all entities, the Department retained
its primary calculations but assumed that the full burden of the
initial costs would be borne in Year 1. The Department then generated a
second alternative timeline with a one-year implementation timeline for
large entities, and a three-year implementation timeline for small
entities. For these alternatives, the primary costs remain the same,
but the year that they begin to accrue is changed.
The Department believes that requiring compliance with WCAG 2.1
Level AAA would prove infeasible, or at least unduly onerous, for some
entities. Level AAA, which is the highest level of WCAG conformance,
includes all of the Level A and Level AA success criteria and also
contains additional success criteria that can provide a more enriched
user experience, but are the most difficult to achieve for web
developers. The W3C[supreg] does not recommend that Level AAA
conformance be required as a general policy for entire websites because
it is not possible to satisfy all Level AAA success criteria for some
content.\269\ For those reasons, the Department did not quantify costs
of requiring WCAG 2.1 Level AAA. Table 35 shows the projected 10-year
costs of these alternatives.
---------------------------------------------------------------------------
\269\ See W3C[supreg], Understanding Conformance, Understanding
Requirement 1 (Aug. 19, 2022), https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/9ZG9-G5N8].
\270\ See Section 5, Regulatory Alternatives, in the
accompanying PRIA for the Department's methodology.
Table 35--Projected Total 10-Year Costs for Regulatory Alternatives
[Millions] \270\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shorter time Shorter time
Time period Longer time WCAG 2.1 Level WCAG 2.0 Level Rule as frame opt. 1 frame opt. 2
frame A AA proposed [a] [a]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1.................................................. $2,387 $3,095 $3,082 $3,361 $8,344 $5,046
Year 2.................................................. 2,582 3,380 3,365 3,646 5,526 6,402
Year 3.................................................. 2,803 6,275 5,402 6,402 2,717 4,304
Year 4.................................................. 6,030 3,262 2,817 3,270 1,836 2,389
Year 5.................................................. 3,270 1,831 1,600 1,836 1,836 1,836
Year 6.................................................. 1,836 1,831 1,600 1,836 1,836 1,836
Year 7.................................................. 1,836 1,831 1,600 1,836 1,836 1,836
Year 8.................................................. 1,836 1,831 1,600 1,836 1,836 1,836
Year 9.................................................. 1,836 1,831 1,600 1,836 1,836 1,836
Year 10................................................. 1,836 1,831 1,600 1,836 1,836 1,836
PV of 10-year costs, 3% rate............................ 22,721 23,620 21,286 24,275 26,238 25,806
Average annualized costs, 3% rate....................... 3,162 2,795 2,522 2,872 3,102 3,052
PV of 10-year costs, 7% rate............................ 18,579 20,093 18,174 20,701 22,898 22,298
Average annualized costs, 7% rate....................... 2,712 2,860 2,587 2,947 3,260 3,174
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] Option 1 is a compliance time frame of one year for all entities. Option 2 is a compliance time frame of one year for large entities and three years
for small entities.
[[Page 52013]]
b. Benefits of Regulatory Alternatives
A variety of assumptions were used to estimate benefits for these
regulatory alternatives. For the alternative compliance time frames,
the Department adjusted only the benefit accrual rates to reflect the
alternative time frames. Table 36 shows the 10-year average annualized
benefits decrease to $7.7 billion from $8.9 billion with the longer
time frame and increase to either $10.7 billion or $9.7 billion with
the shorter time frames (using a 7 percent discount rate).
---------------------------------------------------------------------------
\271\ See Section 5, Regulatory Alternatives, in the
accompanying PRIA for the Department's methodology.
Table 36--Average Annualized Benefits, Regulatory Alternatives
[Millions] \271\ [a]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shorter time Shorter time
Beneficiary Longer time WCAG 2.1 Level WCAG 2.0 Level Rule as frame opt. 1 frame opt. 2
frame A AA proposed [b] [b]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Time savings--current users............................. $3,171.6 $2,696.9 $3,416.1 $3,416.1 $3,882.6 $3,469.8
Time savings--new users................................. 699.6 170.3 170.3 753.5 856.4 765.3
Time savings--governments............................... 458.0 83.6 83.6 493.3 560.7 501.1
Time savings--mobile apps............................... 297.4 252.9 320.4 320.4 364.1 325.4
Time savings--education................................. 2,775.4 2,766.6 3,504.4 3,504.4 4,384.2 4,070.8
Educational attainment.................................. 313.4 224.7 224.7 449.5 614.1 597.6
-----------------------------------------------------------------------------------------------
Total............................................... 7,715.4 6,195.1 7,719.5 8,937.2 10,662.1 9,730.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] 10-Year average annualized benefits, 7 percent discount rate.
[b] Option 1 is a compliance time frame of one year for all entities. Option 2 is a compliance time frame of one year for large entities and three years
for small entities.
For the WCAG conformance level, the alternative assumptions were
less straightforward to calculate. For time savings for current website
users, current mobile app users, and postsecondary students, the
Department used the ratio of the number of success criteria under the
different standards to adjust benefit levels. Because the literature
used to assess the benefits of compliance with WCAG 2.1 Level AA in the
primary analysis was based on compliance with WCAG 2.0 Level AA, the
Department set benefits for compliance with WCAG 2.0 Level AA equal to
the benefits in the primary analysis. For WCAG 2.1 Level A, the
Department multiplied primary benefits by 0.79 (based on the ratio of
the number of success criteria in WCAG 2.1 Level A to the number of
success criteria in WCAG 2.0 Level AA, or 30/38).\272\
---------------------------------------------------------------------------
\272\ WCAG 2.0 Level AA has 38 success criteria, and WCAG 2.1
Level A has 30. WGAG 2.0 Level AA is used as the baseline because
that is the standard used by Sven Schmutz et al., Implementing
Recommendations From Web Accessibility Guidelines: A Comparative
Study of Nondisabled Users and Users with Visual Impairments, 59
Human Factors and Ergonomics Soc'y 956 (2017), https://doi.org/
10.1177/0018720817708397. A Perma archive link was unavailable for
this citation.
---------------------------------------------------------------------------
For time savings to new users and State and local government
entities, the Department used the low and high estimates for the less
stringent and more stringent conformance level alternatives,
respectively. For benefits of higher educational attainment, the
Department simply multiplied by 0.5 and 1.5 respectively for the less
stringent and more stringent alternatives. The basis for this is the
gap in educational achievement closing by 5 percent or 15 percent,
rather than 10 percent (the same alternative assumptions as used in the
sensitivity analysis).
B. Preliminary Regulatory Flexibility Act (``PRFA'') Analysis Summary
As directed by the Regulatory Flexibility Act of 1980, as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996, as
well as Executive Order 13272, the Department is required to consider
the potential impact of the proposed rule on small entities, including
small businesses, small non-profit organizations, and small
governmental jurisdictions. This process helps agencies to determine
whether a proposed rule is likely to impose a significant economic
impact on a substantial number of small entities and, in turn, to
consider regulatory alternatives to reduce the regulatory burden on
those small entities.This proposed rule applies to all small
governmental jurisdictions. The Department's analysis leads it to
conclude that the impact on small governmental jurisdictions affected
by the proposed rule will not be significant, as measured by annualized
costs as a percent of annual revenues. The Department presents this
Preliminary Regulatory Flexibility Analysis for review and comment.
1. Why the Department is Considering Action
Title II of the ADA provides that no qualified individual with a
disability shall be excluded from participation in or denied the
benefits of the services, programs, or activities of a State or local
government. The Department has consistently made clear that this
requirement includes all services, programs, and activities of public
entities, including those provided via the web. It also includes those
provided via mobile apps. In this NPRM, the Department proposes
technical standards for web and mobile app accessibility to give public
entities greater clarity in exactly how to meet their ADA obligations
and to help ensure equal access to government services, programs, and
activities for people with disabilities.
Just as steps can exclude people who use wheelchairs, inaccessible
web content can exclude people with a range of disabilities from
accessing government services. For example, the ability to access
voting information, find up-to-date health and safety resources, and
look up mass transit schedules and fare information may depend on
having access to web content and mobile apps. With accessible web
content and mobile apps people with disabilities can access government
services independently and privately.
2. Objectives of and Legal Basis for the Proposed Rule
On July 26, 1990, President George H.W. Bush signed into law the
ADA, a comprehensive civil rights law prohibiting discrimination on the
basis of disability.\273\ Section 204(a) of the ADA directs the
Attorney General to
[[Page 52014]]
issue regulations implementing part A of title II but exempts matters
within the scope of the authority of the Secretary of Transportation
under section 223, 229, or 244.\274\ Title II, which this rule
addresses, applies to State and local government entities, and, in part
A, protects qualified individuals with disabilities from discrimination
on the basis of disability in services, programs, and activities
provided by State and local government entities.
---------------------------------------------------------------------------
\273\ 42 U.S.C. 12101-12213.
\274\ 42 U.S.C. 12134(a). Sections 229(a) and 244 of the ADA
direct the Secretary of Transportation to issue regulations
implementing part B of title II, except for section 223. See 42
U.S.C 12149; 42 U.S.C. 12164.
---------------------------------------------------------------------------
Accordingly, the Department is proposing technical requirements to
enable public entities to fulfill their obligations under title II to
provide access to all of their services, programs, and activities that
are provided via the web and mobile apps. The Department believes the
requirements described in the NPRM are necessary to ensure the
``equality of opportunity, full participation, independent living, and
economic self-sufficiency'' for individuals with disabilities set forth
in the ADA.\275\
---------------------------------------------------------------------------
\275\ 42 U.S.C. 12101(a)(7).
---------------------------------------------------------------------------
3. Number of Small Governments Affected by the Rulemaking
The Department has examined the impact of the proposed rule on
small entities as required by the RFA. For the purposes of this
analysis, impacted small public entities are independent State and
local governmental units in the United States that serve a population
less than 50,000.\276\ Based on this definition, the Department
estimates a total of 88,000 small entities. This estimate includes the
governments of counties, municipalities, townships, school districts,
and territories with populations below 50,000 in the 2020 Census of
Governments.\277\ No State governments qualify as small. All special
district governments \278\ are included in this analysis because total
population for these public entities could not be determined and the
Department wants to ensure small governments are not undercounted.
---------------------------------------------------------------------------
\276\ 5 U.S.C. 601(5); Small Bus. Admin., A Guide for Government
Agencies: How to Comply with the Regulatory Flexibility Act (Aug.
2017), https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/C57B-YV28].
\277\ U.S. Census Bureau, 2020 State & Local Government Finance
Historical Datasets and Tables (Sept. 2022), https://www2.census.gov/programs-surveys/gov-finances/tables/2020/2020_Individual_Unit_File.zip, Fin_PID_2020.txt file [https://perma.cc/QJM3-N7SG].
\278\ The proposed rule defines ``special district government''
as ``a public entity--other than a county, municipality, or
township, or independent school district--authorized by State law to
provide one function or a limited number of designated functions
with sufficient administrative and fiscal autonomy to qualify as a
separate government and whose population is not calculated by the
United States Census Bureau in the most recent decennial Census or
Small Area Income and Poverty Estimates.'' A special district
government may include, for example, a mosquito abatement district,
utility district, transit authority, water and sewer board, zoning
district, or other similar governmental entities that operate with
administrative and fiscal independence.
---------------------------------------------------------------------------
The Census of Governments includes enrollment numbers for school
districts, but not population counts. To approximate population, the
Department multiplied the enrollment numbers by the ratio of the
estimated total population to school age population, by county.\279\
The Department notes that this method of estimating population of
independent school districts is inconsistent with the population
provisions in the proposed rule's regulatory text because the local
government finances data only include enrollment numbers, not
population numbers. Postsecondary educational institutions are
considered as separate institutions because their funding sources are
different from those of traditional State and local government
entities. While public postsecondary educational institutions receive
funding from State and local tax revenue, they also receive funding
from tuition and fees from students and sometimes from endowments.
Public universities are excluded from this analysis because these tend
to be State-dependent institutions and all States have populations
greater than 50,000. Independent community colleges were removed from
school district counts and included separately. These were combined
with counts of dependent community colleges from the National Center
for Education Statistics (``NCES'').\280\
---------------------------------------------------------------------------
\279\ U.S. Census Bureau, Annual County Resident Population
Estimates by Age, Sex, Race, and Hispanic Origin: April 1, 2010 to
July 1, 2019 (Oct. 2021), https://www.census.gov/data/datasets/time-series/demo/popest/2010s-counties-detail.html [https://perma.cc/SV98-ML2A].
\280\ Institute of Education Sciences, Summary Tables, National
Center for Education Statistics, https://nces.ed.gov/ipeds/SummaryTables/ [https://perma.cc/9SS9-D9T2].
---------------------------------------------------------------------------
4. Impact of the Proposed Rule on Small Governments
The Department calculated costs and benefits to small governments.
The Department also compared costs to revenues for small governments to
evaluate the economic impact to these governments. The costs are less
than 1 percent of revenues for every entity type, so the Department
believes that the costs of this proposed regulation would not be overly
burdensome for the regulated small governments.\281\ These costs
include one-time costs for familiarization with the requirements of the
rule; the purchase of software to assist with remediation of the
website or mobile app; the time spent testing and remediating websites
and mobile apps to comply with WCAG 2.1 Level AA; and elementary,
secondary, and postsecondary education course content remediation.
Annual costs include recurring costs for software licenses and
remediation of future content.
---------------------------------------------------------------------------
\281\ As noted above and as a point of reference, the United
States Small Business Administration advises agencies that a
potential indicator that the impact of a proposed regulation may be
``significant'' is whether the costs exceed 1 percent of the gross
revenues of the entities in a particular sector, although the
threshold may vary based on the particular types of entities at
issue. The Department estimates that the costs of this rulemaking
for each government entity type are far less than 1 percent of
revenues. See Small Bus. Admin., A Guide for Government Agencies:
How to Comply with the Regulatory Flexibility Act 19 (Aug. 2017),
https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH].
---------------------------------------------------------------------------
The Department performed analyses to estimate the costs to test and
remediate inaccessible websites; mobile apps; and elementary,
secondary, and postsecondary education course content. These analyses
involved multistage stratified cluster sampling to randomly select
government entities, government entity websites, and government entity
mobile apps. The Department selected samples from each type and size
(small or large) of government entity, estimated each type of
remediation cost, and then extrapolated the costs to the population of
government entities in each government type and size combination.
Annualized total costs for small governments over a 10-year period are
estimated at $1.5 billion assuming either a 3 percent or 7 percent
discount rate (Table 37). Additional details on how these costs were
estimated are provided in Section VI.A.4 of this preamble.
The most recent revenue data available are from the U.S. Census
Bureau's State and Local Government Finances by Level of Government and
by State: 2020.\282\ However, these data do not disaggregate revenue by
entity type or size. Therefore, the Department first estimated the
proportion of total local government revenue in each local government
entity type and size using the 2012 U.S. Census Bureau's database on
individual local government
[[Page 52015]]
finances.\283\ The Department then multiplied these proportions of the
total local government revenues in each entity type by the 2020 total
local government revenue to calculate the 2020 revenue for the small
entities in each government type. Revenue data for the small
territories are from the U.S. Government Accountability Office.\284\
The Department then multiplied these 2020 revenue numbers by the ratio
of the 2021 GDP deflator to the 2020 GDP deflator to express these
revenues in 2021 dollars.\285\ See Section VI.A.3.h for additional
details on how these revenue numbers were derived.
---------------------------------------------------------------------------
\282\ U.S. Census Bureau, 2020 State & Local Government Finance
Historical Datasets and Tables (Sept. 2022), https://www.census.gov/data/datasets/2020/econ/local/public-use-datasets.html [https://perma.cc/QJM3-N7SG].
\283\ U.S. Census Bureau, Historical Data (Oct. 2021), https://www.census.gov/programs-surveys/cog/data/historical-data.html
[https://perma.cc/UW25-6JPZ]. The Department was unable to find more
recent data with this level of detail. Population counts were
adjusted for estimated population growth over the applicable period.
\284\ GAO, U.S. TERRITORIES: Public Debt Outlook-2021 Update
(June 2021), https://www.gao.gov/assets/gao-21-508.pdf [https://perma.cc/7Z2W-K8ZG].
\285\ Bureau of Economic Analysis, Table 1.1.9. Implicit Price
Deflators for Gross Domestic Product (last updated Nov. 30, 2022),
https://apps.bea.gov/iTable/?reqid=19&step=3&isuri=1&1910=x&0=-99&1921=survey&1903=13&1904=2015&1905=2021&1906=a&1911=0 [https://perma.cc/KNK8-EM6L].
---------------------------------------------------------------------------
Table 37 contains the costs and revenues per government type, and
cost-to-revenue ratios using a 3 percent and 7 percent discount rate.
The costs are less than 1 percent of revenues for every entity type, so
the Department believes that the costs of this proposed regulation
would not have a significant economic impact on small entities affected
by the proposed rule.\286\
---------------------------------------------------------------------------
\286\ As noted above and as a point of reference, the United
States Small Business Administration advises agencies that a
potential indicator that the impact of a proposed regulation may be
``significant'' is whether the costs exceed 1 percent of the gross
revenues of the entities in a particular sector, although the
threshold may vary based on the particular types of entities at
issue. The Department estimates that the costs of this rulemaking
for each government entity type are far less than 1 percent of
revenues. See Small Bus. Admin., A Guide for Government Agencies:
How to Comply with the Regulatory Flexibility Act 19 (Aug. 2017),
https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH]. Dependent
community college costs (community colleges that are operated by a
government entity rather than being an independent school district)
are not compared to revenues. Revenues are not available directly
for these community colleges, and the Department is unable to
determine how to distribute these entities' costs across the State
and local government entity types. Additionally, it is unclear if
all public college and university revenue (e.g., tuition, fees) is
included in the revenue recorded for the State or local entities on
which the school is dependent.
Table 37--Number of Small Entities and Ratio of Costs to Government Revenues
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average annual Average annual Total 10-year Total 10-year
Number of cost per cost per average annual average annual Annual revenue Ratio of costs Ratio of costs
Government type small entities entity (3%) entity (7%) costs (3%) costs (7%) (millions) to revenue to revenue
[c] [c] (millions) (millions) (3%) (7%)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
County.......................................................... 2,105 $9,601.6 $10,150.5 $20.2 $21.4 $65,044.3 0.03 0.03
Municipality.................................................... 18,729 18,269.9 19,314.5 342.2 361.7 184,538.9 0.19 0.20
Township........................................................ 16,097 15,135.0 15,990.6 243.6 257.4 55,818.9 0.44 0.46
Special district................................................ 38,542 1,893.1 1,991.4 73.0 76.8 278,465.3 0.03 0.03
School district [a]............................................. 11,443 31,964.3 33,559.1 365.8 384.0 330,746.4 0.11 0.12
U.S. territory.................................................. 2 116,995.3 124,261.1 0.2 0.2 1,242.5 0.02 0.02
CCs [b]......................................................... 960 449,163.1 455,942.1 431.2 437.7 N/A N/A N/A
CCs--independent................................................ 231 449,163.1 455,942.1 103.8 105.3 11,340.2 0.91 0.93
-------------------------------------------------------------------------------------------------------------------------------
Total (includes all CCs).................................... 87,878 16,798.0 17,515.5 1,476.2 1,539.2 N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
Total (only independent CCs)................................ 87,149 13,181.3 13,848.1 1,148.7 1,206.8 927,196.7 0.12 0.13
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[a] Excludes community colleges, which are costed separately.
[b] Includes all dependent community college districts and the small independent community college districts. Revenue data are not available for the dependent community college districts.
[c] This cost consists of regulatory familiarization costs (discussed in Section VI.A.4.a of this preamble), government website testing and remediation costs (Section VI.A.4.b), mobile app
testing and remediation costs (Section VI.A.4.c of this preamble), postsecondary education course remediation costs (Section VI.A.4.d of this preamble), elementary and secondary education
course remediation costs (Section VI.A.4.e), and costs for third-party websites (Section VI.A.4.f of this preamble) averaged over ten years.
The Department quantified six types of benefits in the Preliminary
Regulatory Impact Analysis.\287\ However, only one of these types of
benefits directly impacts State and local government entities' budgets.
Improved website accessibility will lead some individuals who accessed
government services via the phone, mail, or in person to begin using
the public entity's website to complete the task. This will generate
time savings for government employees. The Department assumed that for
each of the 13.5 million new users of State and local government
entities' websites, there will be six fewer transactions that require
government personnel's time, and each of these will save the government
about 10 minutes of labor time. This results in 13.5 million hours
saved. To determine the share associated with small governments, the
Department multiplied by 80 percent, which is the share of websites
associated with small governments.
---------------------------------------------------------------------------
\287\ See Section 4, Impact of the Proposed Rule on Small
Governments, of the accompanying PRFA for more details.
---------------------------------------------------------------------------
The cost of this time is valued at the median loaded wage for
``Office and Administrative Support Occupations'' within Federal,
State, and local governments. According to the 2021 OEWS, the median
hourly wage rate is $22.19.\288\ This was multiplied by two to account
for benefits and overhead.\289\ This results in a loaded hourly wage
rate of $44.38 per hour. Multiplying 13.5 million hours by 80 percent
and $44.38 per hour results in time savings to small State and local
government entities of $478.9 million. Assuming lower benefits during
the implementation period \290\ results in average annualized benefits
of $404.0 million and $393.3 million using a 3 percent and 7 percent
discount rate, respectively.
---------------------------------------------------------------------------
\288\ U.S. Bureau of Labor Statistics, May 2021 National
Industry-Specific Occupational Employment and Wage Estimates (last
updated Mar. 2022), https://www.bls.gov/oes/current/naics2_99.htm#43-0000 [https://perma.cc/SGS7-9GXP].
\289\ Department of Justice guidance was unavailable, so the
Department used guidance from a different agency that frequently
engages in rulemakings. U.S. Dep't of Health and Human Services
Office of the Assistant Secretary for Planning and Evaluation,
Guidelines for Regulatory Impact Analyses (2016), https://aspe.hhs.gov/reports/guidelines-regulatory-impact-analysis [https://perma.cc/7NVQ-AG8S].
\290\ See Section VI.A.5.c.i.
---------------------------------------------------------------------------
[[Page 52016]]
5. Relevant Federal Rules Duplicating, Overlapping, or Conflicting With
the Proposed Rule
The Department has determined that there are no other Federal rules
that are either in conflict with this proposed rule or are duplicative
of it. The Department recognizes that there is a potential for overlap
with other Federal nondiscrimination laws because entities subject to
title II of the ADA also are subject to title I of the ADA, which
prohibits discrimination on the basis of disability in employment. Some
public entities subject to title II may also be subject to section 504
of the Rehabilitation Act, which prohibits discrimination on the basis
of disability in programs and activities that receive Federal financial
assistance. The regulation implementing title II of the ADA does not,
however, invalidate or limit the remedies, rights, and procedures
available under any other Federal, State, or local laws that provide
greater or equal protection for the rights of individuals with
disabilities (or individuals associated with them). Compliance with the
Department's title II regulation, therefore, does not ensure compliance
with other Federal laws.
6. Alternatives to the Proposed Rule
The Department has considered three less-restrictive compliance
alternatives for small governments. The first is a longer compliance
period of four years for small public entities and special district
governments, for which the Department adjusted its assumptions as to
the pace at which entities would incur initial testing and remediation
costs. Additionally, two less restrictive conformance levels were
considered: WCAG 2.1 Level A and WCAG 2.0 Level AA. To estimate the
costs of requiring conformance only with WCAG 2.1 Level A success
criteria, the Department duplicated its website cost methodology
discussed in Section VI.A.4.b of this preamble while omitting from
consideration any errors that violate WCAG 2.1 Level AA success
criteria only. Accessibility errors that violated both WCAG 2.1 Level A
and WCAG 2.1 Level AA success criteria were retained. WCAG 2.1
introduced 12 new success criteria for Levels A and AA.\291\ To
estimate the costs of requiring WCAG 2.0 Level AA rather than WCAG 2.1
Level AA compliance, the Department replicated its website cost
methodology from Section VI.A.4.b while omitting any errors classified
under one or more of these new success criteria. Costs and benefits of
these regulatory alternatives for all governments are presented in
Section 5, Regulatory Alternatives, of the accompanying PRIA. Here, the
Department summarizes the costs and benefits of these regulatory
alternatives for small entities.
---------------------------------------------------------------------------
\291\ These are Success Criteria 1.3.4, 1.3.5, 1.4.10, 1.4.11,
1.4.12, 1.4.13, 2.1.4, 2.5.1, 2.5.2, 2.5.3, 2.5.4, and 4.1.3.
Success Criteria 1.3.6, 2.2.6, 2.3.3, 2.5.5, and 2.5.6 were newly
introduced at Level AAA. See W3C,[supreg] What's New in WCAG 2.1
(Aug. 13, 2020), https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
---------------------------------------------------------------------------
Costs for small public entities differ for the regulatory
alternatives as explained in Section 6, Alternatives to the Proposed
Rule, of the accompanying PRIA. The results are summarized in Table 38.
---------------------------------------------------------------------------
\292\ See Section 6, Alternatives to the Proposed Rule, in the
accompanying PRFA for the Department's methodology.
Table 38--Average Annualized Costs for Small Entities of Regulatory Alternatives, 7 Percent Discount Rate
[Millions] \292\
----------------------------------------------------------------------------------------------------------------
Longer
Government type Rule as WCAG 2.1 Level WCAG 2.0 Level implementation
proposed A AA period
----------------------------------------------------------------------------------------------------------------
County....................................... $21.4 $21.2 $21.8 $20.6
Municipality................................. 361.7 360.8 366.5 348.9
Township..................................... 257.4 256.5 261.5 248.8
Special district............................. 76.8 76.7 86.7 82.9
School district [a].......................... 384.0 383.1 382.5 362.2
U.S. territory............................... 0.2 0.2 0.2 0.2
CCs [b]...................................... 437.7 436.5 357.5 392.8
CCs--independent............................. 105.3 105.0 86.0 94.5
------------------------------------------------------------------
Total (includes all CCs)................. 1,539.2 1,535.1 1,476.8 1,456.4
------------------------------------------------------------------
Total (only independent CCs)............. 1,206.8 1,203.6 1,205.3 1,158.1
----------------------------------------------------------------------------------------------------------------
[a] Excludes community colleges, which are costed separately.
[b] Includes all dependent community college districts and the small independent community college districts.
Benefit methodology for regulatory alternatives is explained in
Section VI.A.6 of this preamble. Here, the Department applies that same
methodology to small entities. Using a longer compliance period, the
Department estimates average annualized benefits would be slightly
lower because benefits would not accrue as quickly. The Department
estimates average annualized benefits of $378.2 million and $365.2
million using a 3 percent and 7 percent discount rate, respectively
(compared with $404.0 million and $393.3 million associated with the
rule as proposed).
The Department altered four assumptions to estimate the benefits
associated with WCAG 2.1 Level A and WCAG 2.0 Level AA. These are the
same assumptions altered for the sensitivity analysis in Section
VI.A.5.c.ii of this preamble. First, ACS prevalence rates were used in
lieu of SIPP estimates. Second, rather than assuming website usage
becomes equivalent for individuals with and without relevant
disabilities, the Department assumed this gap only closes by 75
percent. Third, the average time spent per transaction was reduced by
25 percent. Fourth, the average number of transactions per year was
reduced by 25 percent. Incorporating these alternative assumptions
reduces the cost savings for small governments to $68.5 million and
$66.7 million using a 3 percent and 7 percent discount rate,
respectively (from $404.0 million and $393.3 million associated with
the rule as proposed).
[[Page 52017]]
C. Executive Order 13132: Federalism
Executive Order 13132 requires executive branch agencies to
consider whether a proposed rule will have federalism
implications.\293\ That is, the rulemaking agency must determine
whether the rule is likely to have substantial direct effects on State
and local governments, on the relationship between the Federal
Government and the States and localities, or on the distribution of
power and responsibilities among the different levels of government. If
an agency believes that a proposed rule is likely to have federalism
implications, it must consult with State and local government officials
about how to minimize or eliminate the effects.
---------------------------------------------------------------------------
\293\ 64 FR 43255 (Aug. 4, 1999).
---------------------------------------------------------------------------
Title II of the ADA covers State and local government services,
programs, and activities, and, therefore, clearly has some federalism
implications. State and local government entities have been subject to
the ADA since 1991, and the many State and local government entities
that receive Federal financial assistance have also been required to
comply with the requirements of section 504 of the Rehabilitation Act.
Hence, the ADA and the title II regulation are not novel for State and
local governments. This proposed rule will preempt State laws affecting
entities subject to the ADA only to the extent that those laws provide
less protection for the rights of individuals with disabilities. This
proposed rule does not invalidate or limit the remedies, rights and
procedures of any State laws that provide greater or equal protection
for the rights of individuals with disabilities.
The Department intends to amend the regulation in a manner that
meets the objectives of the ADA while also minimizing conflicts between
State law and Federal interests. The Department is now soliciting
comments from State and local officials and their representative
national organizations through this NPRM. The Department seeks comment
from all interested parties about the potential federalism implications
of the proposed rule. The Department welcomes comments on the proposed
rule's effects on State and local governments, and on whether the
proposed rule may have direct effects on the relationship between the
Federal Government and the States, or the distribution of power and
responsibilities among the various levels of government.
D. National Technology Transfer and Advancement Act of 1995
The National Technology Transfer and Advancement Act of 1995
(``NTTAA'') directs that, as a general matter, all Federal agencies and
departments shall use technical standards that are developed or adopted
by voluntary consensus standards bodies, which are private, generally
nonprofit organizations that develop technical standards or
specifications using well-defined procedures that require openness,
balanced participation among affected interests and groups, fairness
and due process, and an opportunity for appeal, as a means to carry out
policy objectives or activities.\294\ In addition, the NTTAA directs
agencies to consult with voluntary, private sector, consensus standards
bodies and requires that agencies participate with such bodies in the
development of technical standards when such participation is in the
public interest and is compatible with agency and departmental
missions, authorities, priorities, and budget resources.\295\
---------------------------------------------------------------------------
\294\ Public Law 104-113, 12(d)(1) (15 U.S.C. 272 note).
\295\ Id. Sec. 12(d)(2).
---------------------------------------------------------------------------
As discussed previously, the Department is proposing to adopt the
Web Content Accessibility Guidelines 2.1 Level AA as the accessibility
standard to apply to web content and mobile apps of title II entities.
WCAG 2.1 was developed by the W3C[supreg], which has been the principal
international organization involved in developing protocols and
guidelines for the web. The W3C[supreg] develops a variety of technical
standards and guidelines, including ones relating to privacy,
internationalization of technology, and--as detailed above--
accessibility. Thus, the Department believes it is complying with the
NTTAA in selecting WCAG 2.1 as the applicable accessibility standard.
However, the Department is interested in comments from the public
addressing our use of WCAG 2.1.
E. Plain Language Instructions
The Department makes every effort to promote clarity and
transparency in its rulemaking. In any regulation, there is a tension
between drafting language that is simple and straightforward and
drafting language that gives full effect to issues of legal
interpretation. The Department operates a toll-free ADA Information
Line at (800) 514-0301 (voice); 1-833-610-1264 (TTY) that the public is
welcome to call for assistance understanding anything in this proposed
rule. If any commenter has suggestions for how the regulation could be
written more clearly, please contact Rebecca B. Bond, Chief, Disability
Rights Section, whose contact information is provided in the
introductory section of this proposed rule entitled, FOR FURTHER
INFORMATION CONTACT.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (``PRA''), no person is
required to respond to a ``collection of information'' unless the
agency has obtained a control number from OMB.\296\ This proposed rule
does not contain any collections of information as defined by the PRA.
---------------------------------------------------------------------------
\296\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------
G. Unfunded Mandates Reform Act
Section 4(2) of the Unfunded Mandates Reform Act of 1995 \297\
excludes from coverage under that Act any proposed or final Federal
regulation that ``establishes or enforces any statutory rights that
prohibit discrimination on the basis of race, color, religion, sex,
national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.
---------------------------------------------------------------------------
\297\ 2 U.S.C. 1503(2).
---------------------------------------------------------------------------
H. Incorporation by Reference
As discussed above, the Department proposes to adopt the
internationally recognized accessibility standard for web access, the
Web Content Accessibility Guidelines (``WCAG'') 2.1 Level AA, published
in June 2018, as the technical standard for web and mobile app
accessibility under title II of the ADA. WCAG 2.1, published by the
World Wide Web Consortium (``W3C[supreg]'') Web Accessibility
Initiative (``WAI''), specifies success criteria and requirements to
make web content more accessible to all users, including persons with
disabilities. The Department incorporates WCAG 2.1 Level AA by
reference into this rule, instead of restating all of its requirements
verbatim. As noted above, to the extent there are distinctions between
WCAG 2.1 Level AA and the standards articulated in this rule, the
standards articulated in this rule prevail.
The Department notes that when the W3C[supreg] publishes new
versions of WCAG, those versions will not be automatically incorporated
into this rule. Federal agencies cannot incorporate by reference future
versions of standards developed by bodies like the W3C[supreg]. Federal
agencies are required
[[Page 52018]]
to identify the particular version of a standard incorporated by
reference in a regulation.\298\ When an updated version of a standard
is published, an agency must revise its regulation if it seeks to
incorporate any of the new material.
---------------------------------------------------------------------------
\298\ See, e.g., 1 CFR 51.1(f) (``Incorporation by reference of
a publication is limited to the edition of the publication that is
approved [by the Office of Federal Register. Future amendments or
revisions of the publication are not included.'').
---------------------------------------------------------------------------
WCAG 2.1 is reasonably available to interested parties. Free copies
of WCAG 2.1 are available online on the W3C[supreg]'s website at
https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F]. In
addition, a copy of WCAG 2.1 is also available for inspection at the
Disability Rights Section, Civil Rights Division, U.S. Department of
Justice, 150 M St. NE, 9th Floor, Washington, DC 20002 by appointment.
VII. Proposed Regulatory Text
List of Subjects for 28 CFR Part 35
Administrative practice and procedure, Civil rights,
Communications, Incorporation by reference, Individuals with
disabilities, State and local requirements.
By the authority vested in me as Attorney General by law, including
5 U.S.C. 301; 28 U.S.C. 509, 510; sections 201 and 204 of the of the
Americans with Disabilities Act, Public Law 101-336, as amended, and
section 506 of the ADA Amendments Act of 2008, Public Law. 110-325, 28
CFR part 35 is proposed to be amended as follows--
PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES
0
1. The authority citation for part 35 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134,
12131, and 12205a.
Subpart A--General
0
2. Amend Sec. 35.104 by adding definitions for Archived web content,
Conventional electronic documents, Mobile applications (apps), Special
district government, Total population, WCAG 2.1, and Web content in
alphabetical order to read as follows:
Sec. 35.104 Definitions.
* * * * *
Archived web content means web content that--
(1) Is maintained exclusively for reference, research, or
recordkeeping;
(2) Is not altered or updated after the date of archiving; and
(3) Is organized and stored in a dedicated area or areas clearly
identified as being archived.
* * * * *
Conventional electronic documents means web content or content in
mobile apps that is in the following electronic file formats: portable
document formats (``PDF''), word processor file formats, presentation
file formats, spreadsheet file formats, and database file formats.
* * * * *
Mobile applications (``apps'') means software applications that are
downloaded and designed to run on mobile devices, such as smartphones
and tablets.
* * * * *
Special district government means a public entity--other than a
county, municipality, or township, or independent school district--
authorized by State law to provide one function or a limited number of
designated functions with sufficient administrative and fiscal autonomy
to qualify as a separate government and whose population is not
calculated by the United States Census Bureau in the most recent
decennial Census or Small Area Income and Poverty Estimates.
* * * * *
Total population means the population estimate for a public entity
as calculated by the United States Census Bureau in the most recent
decennial Census or, if a public entity is an independent school
district, the population estimate as calculated by the United States
Census Bureau in the most recent Small Area Income and Poverty
Estimates.
* * * * *
WCAG 2.1 means the Web Content Accessibility Guidelines (``WCAG'')
2.1, W3C[supreg] Recommendation 05 June 2018, https://www.w3.org/TR/2018/REC-WCAG21-20180605/ [https://perma.cc/UB8A-GG2F]. WCAG 2.1 is
incorporated by reference elsewhere in this part (see Sec. 35.200 and
35.202).
Web content means information or sensory experience--including the
encoding that defines the content's structure, presentation, and
interactions--that is communicated to the user by a web browser or
other software. Examples of web content include text, images, sounds,
videos, controls, animations, and conventional electronic documents.
Subpart H--Web and Mobile Accessibility
0
3. Add new subpart H to read as follows:
Subpart H--Web and Mobile Accessibility
Sec.
35.200 Requirements for web and mobile accessibility.
35.201 Exceptions.
35.202 Conforming alternate versions.
35.203 Equivalent facilitation.
35.204 Duties.
35.205-35.209 [Reserved]
Sec. 35.200 Requirements for web and mobile accessibility.
(a) General. A public entity shall ensure that the following are
readily accessible to and usable by individuals with disabilities:
(1) Web content that a public entity makes available to members of
the public or uses to offer services, programs, or activities to
members of the public; and
(2) Mobile apps that a public entity makes available to members of
the public or uses to offer services, programs, or activities to
members of the public.
(b) Requirements
(1) Effective two years from the publication of this rule in final
form, a public entity, other than a special district government, with a
total population of 50,000 or more shall ensure that the web content
and mobile apps it makes available to members of the public or uses to
offer services, programs, or activities to members of the public comply
with Level A and Level AA success criteria and conformance requirements
specified in WCAG 2.1, unless the public entity can demonstrate that
compliance with this section would result in a fundamental alteration
in the nature of a service, program, or activity or in undue financial
and administrative burdens.
(2) Effective three years from the publication of this rule in
final form, a public entity with a total population of less than 50,000
or any public entity that is a special district government shall ensure
that the web content and mobile apps it makes available to members of
the public or uses to offer services, programs, or activities to
members of the public comply with Level A and Level AA success criteria
and conformance requirements specified in WCAG 2.1, unless the public
entity can demonstrate that compliance with this section would result
in a fundamental alteration in the nature of a service, program, or
activity or in undue financial and administrative burdens.
(3) WCAG 2.1 is incorporated by reference into this section with
the approval of the Director of the Federal
[[Page 52019]]
Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved
incorporation by reference (``IBR'') material is available for
inspection at the U.S. Department of Justice and at the National
Archives and Records Administration (``NARA''). Contact the U.S.
Department of Justice at: Disability Rights Section, Civil Rights
Division, U.S. Department of Justice, 150 M St. NE, 9th Floor,
Washington, DC 20002; ADA Information Line: (800) 514-0301 (voice) or
1-833-610-1264 (TTY); website: www.ada.gov. For information on the
availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email [email protected]. The
material may be obtained from the World Wide Web Consortium
(``W3C[supreg]'') Web Accessibility Initiative (``WAI''), 401 Edgewater
Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-2711; email:
[email protected]; website: www.w3.org/TR/2018/REC-WCAG21-20180605/
[https://perma.cc/UB8A-GG2F].
Sec. 35.201 Exceptions.
The requirements of Sec. 35.200 of this chapter do not apply to
the following:
(a) Archived web content. Archived web content as defined in Sec.
35.104 of this chapter.
(b) Preexisting conventional electronic documents. Conventional
electronic documents created by or for a public entity that are
available on a public entity's website or mobile app before the date
the public entity is required to comply with this rule, unless such
documents are currently used by members of the public to apply for,
gain access to, or participate in a public entity's services, programs,
or activities.
(c) Web content posted by a third party. Web content posted by a
third party that is available on a public entity's website.
(d) Linked third-party web content. Third-party web content linked
from a public entity's website, unless the public entity uses the
third-party web content to allow members of the public to participate
in or benefit from the public entity's services, programs, or
activities.
(e) Public postsecondary institutions: password-protected course
content. Except as provided in paragraphs (e)(1) and (2) of this
section, course content available on a public entity's password-
protected or otherwise secured website for admitted students enrolled
in a specific course offered by a public postsecondary institution.
(1) This exception does not apply if a public entity is on notice
that an admitted student with a disability is pre-registered in a
specific course offered by a public postsecondary institution and that
the student, because of a disability, would be unable to access the
content available on the public entity's password-protected or
otherwise secured website for the specific course. In such
circumstances, all content available on the public entity's password-
protected or otherwise secured website for the specific course must
comply with the requirements of Sec. 35.200 by the date the academic
term begins for that course offering. New content added throughout the
term for the course must also comply with the requirements of Sec.
35.200 at the time it is added to the website.
(2) This exception does not apply once a public entity is on notice
that an admitted student with a disability is enrolled in a specific
course offered by a public postsecondary institution after the start of
the academic term and that the student, because of a disability, would
be unable to access the content available on the public entity's
password-protected or otherwise secured website for the specific
course. In such circumstances, all content available on the public
entity's password-protected or otherwise secured website for the
specific course must comply with the requirements of Sec. 35.200
within five business days of such notice. New content added throughout
the term for the course must also comply with the requirements of Sec.
35.200 at the time it is added to the website.
(f) Public elementary and secondary schools: password-protected
class or course content. Except as provided in paragraphs (f)(1)
through (4) of this section, class or course content available on a
public entity's password-protected or otherwise secured website for
students enrolled, or parents of students enrolled, in a specific class
or course at a public elementary or secondary school.
(1) This exception does not apply if the public entity is on notice
of the following: a student with a disability is pre-registered in a
specific class or course offered by a public elementary or secondary
school and that the student, because of a disability, would be unable
to access the content available on the public entity's password-
protected or otherwise secured website for the specific class or
course. In such circumstances, all content available on the public
entity's password-protected or otherwise secured website for the
specific class or course must comply with the requirements of Sec.
35.200 by the date the term begins for that class or course. New
content added throughout the term for the class or course must also
comply with the requirements of Sec. 35.200 at the time it is added to
the website.
(2) This exception does not apply if the public entity is on notice
of the following: a student is pre-registered in a public elementary or
secondary school's class or course, the student's parent has a
disability, and the parent, because of a disability, would be unable to
access the content available on the password-protected or otherwise
secured website for the specific class or course. In such
circumstances, all content available on the public entity's password-
protected or otherwise secured website for the specific class or course
must comply with the requirements of Sec. 35.200 by the date the term
begins for that class or course. New content added throughout the term
for the class or course must also comply with the requirements of Sec.
35.200 at the time it is added to the website.
(3) This exception does not apply once a public entity is on notice
of the following: a student with a disability is enrolled in a public
elementary or secondary school's class or course after the term begins
and that the student, because of a disability, would be unable to
access the content available on the public entity's password-protected
or otherwise secured website for the specific class or course. In such
circumstances, all content available on the public entity's password-
protected or otherwise secured website for the specific class or course
must comply with the requirements of Sec. 35.200 within five business
days of such notice. New content added throughout the term for the
class or course must also comply with the requirements of Sec. 35.200
at the time it is added to the website.
(4) This exception also does not apply once a public entity is on
notice of the following: a student is enrolled in a public elementary
or secondary school's class or course after the term begins, and the
student's parent has a disability, and the parent, because of a
disability, would be unable to access the content available on the
public entity's password-protected or otherwise secured website for the
specific class or course. In such circumstances, all content available
on the public entity's password-protected or otherwise secured website
for the specific class or course must comply with the requirements of
Sec. 35.200 within five business days of such notice. New content
added throughout the term for the class or course must also comply with
the requirements of Sec. 35.200 at the time it is added to the
website.
[[Page 52020]]
(g) Individualized, password-protected documents. Conventional
electronic documents that are: (1) about a specific individual, their
property, or their account; and (2) password-protected or otherwise
secured.
Sec. 35.202 Conforming alternate versions.
(a) A public entity may use conforming alternate versions of
websites and web content, as defined by WCAG 2.1, to comply with Sec.
35.200 only where it is not possible to make websites and web content
directly accessible due to technical or legal limitations.
(b) WCAG 2.1 is incorporated by reference into this section with
the approval of the Director of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. All approved incorporation by reference
(``IBR'') material is available for inspection at the U.S. Department
of Justice and at the National Archives and Records Administration
(``NARA''). Contact the U.S. Department of Justice at: Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, 150
M St. NE, 9th Floor, Washington, DC 20002; ADA Information Line: (800)
514-0301 (voice) or 1-833-610-1264 (TTY); website: www.ada.gov. For
information on the availability of this material at NARA, visit
www.archives.gov/federal-register/cfr/ibr-locations.html or email
[email protected]. The material may be obtained from the World
Wide Web Consortium (``W3C[supreg]'') Web Accessibility Initiative
(``WAI''), 401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone:
(339) 273-2711; email: [email protected]; website: www.w3.org/TR/2018/REC-WCAG21-20180605/ [https://perma.cc/UB8A-GG2F].
Sec. 35.203 Equivalent facilitation.
Nothing in this subpart prevents the use of designs, methods, or
techniques as alternatives to those prescribed, provided that the
alternative designs, methods or techniques result in substantially
equivalent or greater accessibility and usability of the web content or
mobile app.
Sec. 35.204 Duties.
Where a public entity can demonstrate that full compliance with the
requirements of Sec. 35.200 would result in a fundamental alteration
in the nature of a service, program, or activity or in undue financial
and administrative burdens, compliance with Sec. 35.200 is required to
the extent that it does not result in a fundamental alteration or undue
financial and administrative burdens. In those circumstances where
personnel of the public entity believe that the proposed action would
fundamentally alter the service, program, or activity or would result
in undue financial and administrative burdens, a public entity has the
burden of proving that compliance with Sec. 35.200 would result in
such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the head of a public
entity or their designee after considering all resources available for
use in the funding and operation of the service, program, or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action would result in such an
alteration or such burdens, a public entity shall take any other action
that would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with disabilities receive the
benefits or services provided by the public entity to the maximum
extent possible.
Sec. Sec. 35.205-35.209 [Reserved]
Dated: July 21, 2023.
Merrick B. Garland,
Attorney General.
[FR Doc. 2023-15823 Filed 8-3-23; 8:45 am]
BILLING CODE 4410-13-P