Proposed Rule2023-15823
Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities
Primary source
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Published
August 4, 2023
Issuing agencies
Justice Department
Abstract
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.
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15823]
[[Page 51947]]
Vol. 88
Friday,
No. 149
August 4, 2023
Part III
Department of Justice
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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]]
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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.
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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:
<bullet> Federal eRulemaking Website: <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow
the website's instructions for submitting comments.
<bullet> Regular U.S. Mail: Disability Rights Section, Civil Rights
Division, U.S. Department of Justice, P.O. Box 440528, Somerville, MA
02144.
<bullet> 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 <a href="http://www.ada.gov">www.ada.gov</a>.
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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> 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
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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.
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\1\ 42 U.S.C. 12132.
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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\
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\2\ 42 U.S.C. 12101(a)(7).
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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\
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\3\ 42 U.S.C. 12101-12213.
\4\ 42 U.S.C. 12131-65.
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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.
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\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, <a href="https://www.justice.gov/crt/file/1466601/download">https://www.justice.gov/crt/file/1466601/download</a> [<a href="https://perma.cc/YN3G-J7F9">https://perma.cc/YN3G-J7F9</a>].
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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.
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\7\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), <a href="https://www.w3.org/TR/WCAG21/#dfn-specific-sensory-experience">https://www.w3.org/TR/WCAG21/#dfn-specific-sensory-experience</a> [<a href="https://perma.cc/5554-T2R2">https://perma.cc/5554-T2R2</a>].
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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, <a href="https://www.w3.org/TR/WCAG21/">https://www.w3.org/TR/WCAG21/</a> [<a href="https://perma.cc/H2GG-WJVK">https://perma.cc/H2GG-WJVK</a>], 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.
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\8\ Copyright (copyright) 2017 2018 W3C[supreg] (MIT, ERCIM,
Keio, Beihang). This document includes material copied from or
derived from <a href="https://www.w3.org/TR/WCAG21/">https://www.w3.org/TR/WCAG21/</a> [<a href="https://perma.cc/H2GG-WJVK">https://perma.cc/H2GG-WJVK</a>].
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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
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Public entity size Compliance date
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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.
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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\
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\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), <a href="https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf">https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf</a> [<a href="https://perma.cc/MZW6-Y3MH">https://perma.cc/MZW6-Y3MH</a>]; see also EPA, EPA's Action Development Process: Final
Guidance for EPA Rulewriters: Regulatory Flexibility Act 24 (Nov.
2006), <a href="https://www.epa.gov/sites/default/files/2015-06/documents/guidance-regflexact.pdf">https://www.epa.gov/sites/default/files/2015-06/documents/guidance-regflexact.pdf</a> [<a href="https://perma.cc/9XFZ-3EVA">https://perma.cc/9XFZ-3EVA</a>] (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'').
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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.
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\10\ See W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
<a href="https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/">https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/</a> [<a href="https://perma.cc/W8HK-Z5QK">https://perma.cc/W8HK-Z5QK</a>]; W3C[supreg], Web Content Accessibility
Guidelines 2.1 (June 5, 2018), <a href="https://www.w3.org/TR/WCAG21/">https://www.w3.org/TR/WCAG21/</a>
[<a href="https://perma.cc/29PG-YX3N">https://perma.cc/29PG-YX3N</a>].
\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.
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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
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3% Discount 7% Discount
Benefit type rate rate
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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
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[[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\
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\12\ 42 U.S.C. 12201(a); 28 CFR 35.103(a).
\13\ 42 U.S.C. 12201(b); 28 CFR 35.103(b).
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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.
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\14\ See 20 U.S.C. 1412; 34 CFR 104.32-104.33.
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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.
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\15\ 42 U.S.C. 12101 et seq.
\16\ 42 U.S.C. 12134, 12186(b).
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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.
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\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.
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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.
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\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), <a href="https://www.justice.gov/crt/foia/file/666366/download">https://www.justice.gov/crt/foia/file/666366/download</a> [<a href="https://perma.cc/56ZB-WTHA">https://perma.cc/56ZB-WTHA</a>].
\19\ See 42 U.S.C. 12132.
\20\ See U.S. Dep't of Just., Guidance on Web Accessibility and
the ADA, <a href="http://ADA.gov">ADA.gov</a> (Mar. 18, 2022), <a href="https://www.ada.gov/resources/web-guidance/">https://www.ada.gov/resources/web-guidance/</a> [<a href="https://perma.cc/WH9E-VTCY">https://perma.cc/WH9E-VTCY</a>]; Settlement Agreement Between
the United States of America and the Champaign-Urbana Mass Transit
District (Dec. 14, 2021), <a href="https://www.ada.gov/champaign-urbana_sa.pdf">https://www.ada.gov/champaign-urbana_sa.pdf</a> [<a href="https://perma.cc/VZU2-E6FZ">https://perma.cc/VZU2-E6FZ</a>]; Consent Decree, United
States v. The Regents of the Univ. of Cal. (Nov. 20, 2022), <a href="https://www.justice.gov/opa/press-release/file/1553291/download">https://www.justice.gov/opa/press-release/file/1553291/download</a> [<a href="https://perma.cc/9AMQ-GPP3">https://perma.cc/9AMQ-GPP3</a>]; Consent Decree, Dudley v. Miami Univ. (Oct. 17,
2016), <a href="https://www.ada.gov/miami_university_cd.html">https://www.ada.gov/miami_university_cd.html</a> [<a href="https://perma.cc/T3FX-G7RZ">https://perma.cc/T3FX-G7RZ</a>]; 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), <a href="https://www.ada.gov/denver_pca/denver_sa.html">https://www.ada.gov/denver_pca/denver_sa.html</a> [<a href="https://perma.cc/U7VE-MBSG">https://perma.cc/U7VE-MBSG</a>]; Settlement
Agreement Between the United States of America and Nueces County,
Texas Under the Americans with Disabilities Act (effective Jan. 30,
2015), <a href="https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html">https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html</a>
[<a href="https://perma.cc/TX66-WQY7">https://perma.cc/TX66-WQY7</a>]; 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), <a href="https://www.ada.gov/louisiana-tech.htm">https://www.ada.gov/louisiana-tech.htm</a> [<a href="https://perma.cc/78ES-4FQR">https://perma.cc/78ES-4FQR</a>].
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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'' (<a href="https://www.ada.gov/websites2.htm">https://www.ada.gov/websites2.htm</a>
[<a href="https://perma.cc/Z7JT-USAN">https://perma.cc/Z7JT-USAN</a>]), 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.
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\21\ U.S. Dep't of Just., Guidance on Web Accessibility and the
ADA, <a href="http://ADA.gov">ADA.gov</a> (Mar. 18, 2022), <a href="https://www.ada.gov/resources/web-guidance/">https://www.ada.gov/resources/web-guidance/</a> [<a href="https://perma.cc/874V-JK5Z">https://perma.cc/874V-JK5Z</a>].
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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.
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\22\ U.S. Dep't of Just., Accessibility of State and Local
Government websites to People with Disabilities, <a href="http://ADA.gov">ADA.gov</a> (June
2003), <a href="https://www.ada.gov/websites2.htm">https://www.ada.gov/websites2.htm</a> [<a href="https://perma.cc/Z7JT-USAN">https://perma.cc/Z7JT-USAN</a>].
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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\
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\23\ 75 FR 43460 (July 26, 2010).
\24\ See Department of Justice--Fall 2015 Statement of
Regulatory Priorities, <a href="http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html">http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html</a> [<a href="https://perma.cc/YF2L-FTSK">https://perma.cc/YF2L-FTSK</a>].
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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.
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\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).
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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.
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\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), <a href="https://www.grassley.senate.gov/imo/media/doc/2018-10-11%20DOJ%20to%20Grassley%20-%20ADA%20website%20Accessibility.pdf">https://www.grassley.senate.gov/imo/media/doc/2018-10-11%20DOJ%20to%20Grassley%20-%20ADA%20website%20Accessibility.pdf</a>
[<a href="https://perma.cc/8JHS-FK2Q">https://perma.cc/8JHS-FK2Q</a>].
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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.
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\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), <a href="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://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/</a> [<a href="https://perma.cc/29E5-LMXM">https://perma.cc/29E5-LMXM</a>].
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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.
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\29\ See The Coronavirus Spring: The Historic Closing of U.S.
Schools (A Timeline), Education Week (July 1, 2020), <a href="https://www.edweek.org/leadership/the-coronavirus-spring-the-historic-closing-of-u-s-schools-a-timeline/2020/07">https://www.edweek.org/leadership/the-coronavirus-spring-the-historic-closing-of-u-s-schools-a-timeline/2020/07</a> [<a href="https://perma.cc/47E8-FJ3U">https://perma.cc/47E8-FJ3U</a>].
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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\
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\30\ See Colleen McClain et al., The internet and the Pandemic,
Pew Research Center (Sep. 1, 2021), <a href="https://www.pewresearch.org/internet/2021/09/01/the-internet-and-the-pandemic/">https://www.pewresearch.org/internet/2021/09/01/the-internet-and-the-pandemic/</a> [<a href="https://perma.cc/4WVA-FQ9P">https://perma.cc/4WVA-FQ9P</a>].
\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), <a href="https://doi.org/10.1177/00027642211003146">https://doi.org/10.1177/00027642211003146</a>. 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), <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7675734/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7675734/</a>
[<a href="https://perma.cc/Y75D-XWCT">https://perma.cc/Y75D-XWCT</a>].
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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\
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\35\ See, e.g., Coronavirus Disease 2019 (COVID-19) Outbreak,
<a href="http://Maryland.gov">Maryland.gov</a>, <a href="https://coronavirus.maryland.gov/">https://coronavirus.maryland.gov/</a> [<a href="https://perma.cc/NAW4-6KP4">https://perma.cc/NAW4-6KP4</a>]; Covid19.CA, <a href="http://California.gov">California.gov</a>, <a href="https://covid19.ca.gov/">https://covid19.ca.gov/</a>
[<a href="https://perma.cc/BL9C-WTJP">https://perma.cc/BL9C-WTJP</a>]; Washington State Coronavirus Response,
Washington State, <a href="https://coronavirus.wa.gov/">https://coronavirus.wa.gov/</a> [<a href="https://perma.cc/KLA4-KY53">https://perma.cc/KLA4-KY53</a>].
\36\ See Hannah Eichner, The Time is Now to Vaccinate High-Risk
People with Disabilities, National Health Law Program (Mar. 15,
2021), <a href="https://healthlaw.org/the-time-is-now-to-vaccinate-high-risk-people-with-disabilities/">https://healthlaw.org/the-time-is-now-to-vaccinate-high-risk-people-with-disabilities/</a> [<a href="https://perma.cc/8CM8-9UC4">https://perma.cc/8CM8-9UC4</a>].
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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\
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\37\ See People with Disabilities, Centers for Disease Control
and Prevention, <a href="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://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</a> [<a href="https://perma.cc/WZ7U-2EQE">https://perma.cc/WZ7U-2EQE</a>].
\38\ See 2021 Progress Report: The Impact of COVID-19 on People
with Disabilities, National Council on Disability (Oct. 29, 2021),
<a href="https://ncd.gov/progressreport/2021/2021-progress-report">https://ncd.gov/progressreport/2021/2021-progress-report</a> [<a href="https://perma.cc/96L7-XMKZ">https://perma.cc/96L7-XMKZ</a>].
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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\
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\39\ Mona Bushnell, What Is the Difference Between an App and a
Mobile website?, Business News Daily (updated Aug. 2, 2022), <a href="https://www.businessnewsdaily.com/6783-mobile-website-vs-mobile-app.html">https://www.businessnewsdaily.com/6783-mobile-website-vs-mobile-app.html</a>
[<a href="https://perma.cc/9LKC-GUEM">https://perma.cc/9LKC-GUEM</a>].
\40\ Id.
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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\
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\41\ See, e.g., COVID-19 Virginia Resources, Virginia Department
of Social Services, <a href="https://apps.apple.com/us/app/covid-19-virginia-resources/id1507112717">https://apps.apple.com/us/app/covid-19-virginia-resources/id1507112717</a> [<a href="https://perma.cc/LP6N-WC9K">https://perma.cc/LP6N-WC9K</a>]; Chandra Steele,
Does My State Have a COVID-19 Vaccine App, PC Mag (updated Feb. 10,
2022), <a href="https://www.pcmag.com/how-to/does-my-state-have-a-covid-19-vaccine-app">https://www.pcmag.com/how-to/does-my-state-have-a-covid-19-vaccine-app</a> [<a href="https://perma.cc/H338-MCWC">https://perma.cc/H338-MCWC</a>].
\42\ See Using Mobile Apps in Government, IBM Ctr. for the Bus.
of Gov't, at 11 (2015), <a href="https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf">https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf</a> [<a href="https://perma.cc/248X-8A6C">https://perma.cc/248X-8A6C</a>].
\43\ Id. at 32.
\44\ Id. at 31.
\45\ Id. at 8.
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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\
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\46\ See Large-Scale Analysis Finds Many Mobile Apps Are
Inaccessible, University of Washington CREATE, <a href="https://create.uw.edu/initiatives/large-scale-analysis-finds-many-mobile-apps-are-inaccessible/">https://create.uw.edu/initiatives/large-scale-analysis-finds-many-mobile-apps-are-inaccessible/</a> [<a href="https://perma.cc/442K-SBCG">https://perma.cc/442K-SBCG</a>].
\47\ Id.
\48\ See Chase DiBenedetto, 4 ways mobile apps could be a lot
more accessible, Mashable (Dec. 9, 2021), <a href="https://mashable.com/article/mobile-apps-accessibility-fixes">https://mashable.com/article/mobile-apps-accessibility-fixes</a> [<a href="https://perma.cc/WC6M-2EUL">https://perma.cc/WC6M-2EUL</a>].
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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\
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\49\ See, e.g., W3C[supreg], Easy Checks--A First Review of Web
Accessibility, (updated Jan. 31, 2023), <a href="https://www.w3.org/WAI/test-evaluate/preliminary/">https://www.w3.org/WAI/test-evaluate/preliminary/</a> [<a href="https://perma.cc/N4DZ-3ZB8">https://perma.cc/N4DZ-3ZB8</a>].
\50\ W3C[supreg], Tables Tutorial (updated Feb. 16, 2023),
<a href="https://www.w3.org/WAI/tutorials/tables/">https://www.w3.org/WAI/tutorials/tables/</a> [<a href="https://perma.cc/FMG2-33C4">https://perma.cc/FMG2-33C4</a>].
\51\ W3C[supreg], Images Tutorial (Feb. 08, 2022), <a href="https://www.w3.org/WAI/tutorials/images/">https://www.w3.org/WAI/tutorials/images/</a> [<a href="https://perma.cc/G6TL-W7ZC">https://perma.cc/G6TL-W7ZC</a>].
\52\ W3C[supreg], Providing Descriptive Headings (June 20,
2023), <a href="https://www.w3.org/WAI/WCAG21/Techniques/general/G130.html">https://www.w3.org/WAI/WCAG21/Techniques/general/G130.html</a>
[<a href="https://perma.cc/XWM5-LL6S">https://perma.cc/XWM5-LL6S</a>].
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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\
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\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.
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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\
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\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), <a href="https://www.ada.gov/websites2.htm">https://www.ada.gov/websites2.htm</a> [<a href="https://perma.cc/Z7JT-USAN">https://perma.cc/Z7JT-USAN</a>]; 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), <a href="https://www.ada.gov/pcatoolkit/chap5toolkit.htm">https://www.ada.gov/pcatoolkit/chap5toolkit.htm</a> [<a href="https://perma.cc/VM3M-AHDJ">https://perma.cc/VM3M-AHDJ</a>]; U.S. Dep't of Just.,
Guidance on Web Accessibility and the ADA, Ada.gov (Mar. 18, 2022),
https://<a href="https://www.ada.gov/resources/web-guidance/">https://www.ada.gov/resources/web-guidance/</a> [<a href="https://perma.cc/874V-JK5Z">https://perma.cc/874V-JK5Z</a>].
\57\ U.S. Dep't of Just., Project Civic Access, Ada.gov, <a href="https://www.ada.gov/civicac.htm">https://www.ada.gov/civicac.htm</a> [<a href="https://perma.cc/B6WV-4HLQ">https://perma.cc/B6WV-4HLQ</a>].
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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\
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\58\ See, e.g., Letter for U.S. Dep't of Just. from American
Council of the Blind et al. (Feb. 28, 2022), <a href="https://acb.org/accessibility-standards-joint-letter-2-28-22">https://acb.org/accessibility-standards-joint-letter-2-28-22</a> [<a href="https://perma.cc/R77M-VPH9">https://perma.cc/R77M-VPH9</a>] (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), <a href="https://www.c-c-d.org/fichiers/CCD-Web-Accessibility-Letter-to-DOJ-03232022.pdf">https://www.c-c-d.org/fichiers/CCD-Web-Accessibility-Letter-to-DOJ-03232022.pdf</a> [<a href="https://perma.cc/Q7YB-UNKV">https://perma.cc/Q7YB-UNKV</a>].
\59\ National Council on Disability, The Need for Federal
Legislation and Regulation Prohibiting Telecommunications and
Information Services Discrimination (Dec. 19, 2006), <a href="https://www.ncd.gov/publications/2006/Dec282006">https://www.ncd.gov/publications/2006/Dec282006</a> [<a href="https://perma.cc/7HW5-NF7P">https://perma.cc/7HW5-NF7P</a>]
(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), <a href="https://ncd.gov/progressreport/2016/progress-report-october-2016">https://ncd.gov/progressreport/2016/progress-report-october-2016</a> [<a href="https://perma.cc/J82G-6UU8">https://perma.cc/J82G-6UU8</a>] (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), <a href="https://www.narfocus.com/billdatabase/clientfiles/172/3/3058.pdf">https://www.narfocus.com/billdatabase/clientfiles/172/3/3058.pdf</a> [<a href="https://perma.cc/Z93F-K88P">https://perma.cc/Z93F-K88P</a>].
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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\
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\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), <a href="https://www.ada.gov/champaign-urbana_sa.pdf">https://www.ada.gov/champaign-urbana_sa.pdf</a> [<a href="https://perma.cc/VZU2-E6FZ">https://perma.cc/VZU2-E6FZ</a>]; Consent Decree, United States v. The Regents of
the Univ. of Cal. (Nov. 20, 2022), <a href="https://www.justice.gov/opa/press-release/file/1553291/download">https://www.justice.gov/opa/press-release/file/1553291/download</a> [<a href="https://perma.cc/9AMQ-GPP3">https://perma.cc/9AMQ-GPP3</a>];
Consent Decree, Dudley v. Miami Univ. (Oct. 13, 2016), <a href="https://www.ada.gov/miami_university_cd.html">https://www.ada.gov/miami_university_cd.html</a> [<a href="https://perma.cc/T3FX-G7RZ">https://perma.cc/T3FX-G7RZ</a>];
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), <a href="https://www.ada.gov/denver_pca/denver_sa.html">https://www.ada.gov/denver_pca/denver_sa.html</a> [<a href="https://perma.cc/U7VE-MBSG">https://perma.cc/U7VE-MBSG</a>]; Settlement Agreement
Between the United States of America and Nueces County, Texas Under
the Americans with Disabilities Act (effective Jan. 30, 2015),
<a href="https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html">https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html</a> [<a href="https://perma.cc/TX66-WQY7">https://perma.cc/TX66-WQY7</a>]; 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), <a href="https://www.ada.gov/louisiana-tech.htm">https://www.ada.gov/louisiana-tech.htm</a> [<a href="https://perma.cc/78ES-4FQR">https://perma.cc/78ES-4FQR</a>].
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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\
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\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), <a href="https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b.pdf">https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b.pdf</a> [<a href="https://perma.cc/DUS4-HVZJ">https://perma.cc/DUS4-HVZJ</a>],
superseded by <a href="https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b1.pdf">https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b1.pdf</a> [<a href="https://perma.cc/BVL6-Y59M">https://perma.cc/BVL6-Y59M</a>]
(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), <a href="https://www.hud.gov/sites/dfiles/Main/documents/HUD-City-of-Los-Angeles-VCA.pdf">https://www.hud.gov/sites/dfiles/Main/documents/HUD-City-of-Los-Angeles-VCA.pdf</a> [<a href="https://perma.cc/X5RN-AJ5K">https://perma.cc/X5RN-AJ5K</a>].
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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 <a href="https://www.w3.org/TR/WCAG21/">https://www.w3.org/TR/WCAG21/</a>. 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\
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\65\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), <a href="https://www.w3.org/TR/WCAG21/#glossary">https://www.w3.org/TR/WCAG21/#glossary</a> [<a href="https://perma.cc/YB57-ZB8C">https://perma.cc/YB57-ZB8C</a>].
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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.
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\66\ W3C[supreg], About Us, <a href="https://www.w3.org/about/">https://www.w3.org/about/</a> [<a href="https://perma.cc/TQ2W-T377">https://perma.cc/TQ2W-T377</a>].
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The first version of WCAG, WCAG 1.0, was published in 1999. WCAG
2.0 was published in December 2008, and is available at <a href="http://www.w3.org/TR/2008/REC-WCAG20-20081211/">http://www.w3.org/TR/2008/REC-WCAG20-20081211/</a> [<a href="https://perma.cc/L2NH-VLCR">https://perma.cc/L2NH-VLCR</a>].
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 <a href="https://www.w3.org/TR/WCAG21/">https://www.w3.org/TR/WCAG21/</a> [<a href="https://perma.cc/UB8A-GG2F">https://perma.cc/UB8A-GG2F</a>].\68\
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\67\ W3C[supreg], Web Accessibility Guidelines 2.0 Approved as
ISO/IEC International Standard (Oct. 15, 2012), <a href="https://www.w3.org/press-releases/2012/wcag2pas/">https://www.w3.org/press-releases/2012/wcag2pas/</a>[<a href="https://perma.cc/JQ39-HGKQ">https://perma.cc/JQ39-HGKQ</a>].
\68\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), <a href="https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance">https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance</a> [<a href="https://perma.cc/5PDG-ZTJE">https://perma.cc/5PDG-ZTJE</a>]. 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), <a href="https://www.w3.org/TR/WCAG22/">https://www.w3.org/TR/WCAG22/</a> [<a href="https://perma.cc/M4G8-Z2GY">https://perma.cc/M4G8-Z2GY</a>]. 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), <a href="https://www.w3.org/TR/wcag-3.0/">https://www.w3.org/TR/wcag-3.0/</a> [<a href="https://perma.cc/7FPQ-EEJ7">https://perma.cc/7FPQ-EEJ7</a>].
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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.
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\69\ Id.
\70\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
WCAG 2 Layers of Guidance (June 5, 2018), <a href="https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance">https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance</a> [<a href="https://perma.cc/5PDG-ZTJE">https://perma.cc/5PDG-ZTJE</a>]
(emphasis added).
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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 <a href="https://www.w3.org/TR/WCAG21/">https://www.w3.org/TR/WCAG21/</a> [<a href="https://perma.cc/UB8A-GG2F">https://perma.cc/UB8A-GG2F</a>]. 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.
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\71\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
<a href="https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/">https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/</a> [<a href="https://perma.cc/W8HK-Z5QK">https://perma.cc/W8HK-Z5QK</a>].
\72\ Id.
\73\ Id.
\74\ See id.
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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\
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\75\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Reflow (June 5, 2018), <a href="https://www.w3.org/TR/WCAG21/#reflow">https://www.w3.org/TR/WCAG21/#reflow</a> [<a href="https://perma.cc/YRP5-M599">https://perma.cc/YRP5-M599</a>].
\76\ See id.
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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\
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\77\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Orientation (June 5, 2018), <a href="https://www.w3.org/TR/WCAG21/#orientation">https://www.w3.org/TR/WCAG21/#orientation</a> [<a href="https://perma.cc/FC3E-FRYK">https://perma.cc/FC3E-FRYK</a>].
\78\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
<a href="https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/">https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/</a> [<a href="https://perma.cc/W8HK-Z5QK">https://perma.cc/W8HK-Z5QK</a>]
\79\ See id.
\80\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Motion Actuation (June 5, 2018), <a href="https://www.w3.org/TR/WCAG21/#motion-actuation">https://www.w3.org/TR/WCAG21/#motion-actuation</a> [<a href="https://perma.cc/6S93-VX58">https://perma.cc/6S93-VX58</a>].
\81\ See W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
<a href="https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/">https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/</a> [<a href="https://perma.cc/W8HK-Z5QK">https://perma.cc/W8HK-Z5QK</a>].
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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.
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\82\ U.S. Gen. Servs. Admin. Digital Analytics Program, <a href="https://analytics.usa.gov/">https://analytics.usa.gov/</a> [<a href="https://perma.cc/2YZP-KCMG">https://perma.cc/2YZP-KCMG</a>].
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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.
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\83\ W3C[supreg], WCAG 2.0 Overview (updated Aug. 6, 2022),
<a href="https://www.w3.org/WAI/standards-guidelines/wcag/">https://www.w3.org/WAI/standards-guidelines/wcag/</a> [<a href="https://perma.cc/L7NX-8XW3">https://perma.cc/L7NX-8XW3</a>].
\84\ W3C[supreg], Introduction to Understanding WCAG (June 20,
2023), <a href="https://www.w3.org/WAI/WCAG21/Understanding/intro">https://www.w3.org/WAI/WCAG21/Understanding/intro</a> [<a href="https://perma.cc/XB3Y-QKVU">https://perma.cc/XB3Y-QKVU</a>].
\85\ See W3C[supreg], Understanding Techniques for WCAG Success
Criteria (June 20, 2023), <a href="https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques">https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques</a> [<a href="https://perma.cc/AMT4-XAAL">https://perma.cc/AMT4-XAAL</a>].
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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\
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\86\ See, e.g., Settlement Agreement with CVS Pharmacy, Inc.
(Apr. 11, 2022), <a href="https://archive.ada.gov/cvs_sa.pdf">https://archive.ada.gov/cvs_sa.pdf</a> [<a href="https://perma.cc/H5KZ-4VVF">https://perma.cc/H5KZ-4VVF</a>]; Settlement Agreement with Meijer, Inc. (Feb. 2,
2022), <a href="https://archive.ada.gov/meijer_sa.pdf">https://archive.ada.gov/meijer_sa.pdf</a> [<a href="https://perma.cc/5FGD-FK42">https://perma.cc/5FGD-FK42</a>]; Settlement Agreement with The Kroger Co. (Jan. 28, 2022),
<a href="https://archive.ada.gov/kroger_co_sa.pdf">https://archive.ada.gov/kroger_co_sa.pdf</a> [<a href="https://perma.cc/6ASX-U7FQ">https://perma.cc/6ASX-U7FQ</a>]; Settlement Agreement with Champaign-Urbana Mass Transit Dist.
(Dec. 14, 2021), <a href="https://www.justice.gov/d9/case-documents/attachments/2021/12/14/champaign-urbana_sa.pdf">https://www.justice.gov/d9/case-documents/attachments/2021/12/14/champaign-urbana_sa.pdf</a> [<a href="https://perma.cc/66XY-QGA8">https://perma.cc/66XY-QGA8</a>]; Settlement Agreement with Hy-Vee, Inc. (Dec. 1, 2021)
<a href="https://archive.ada.gov/hy-vee_sa.pdf">https://archive.ada.gov/hy-vee_sa.pdf</a> [<a href="https://perma.cc/GFY6-BJNE">https://perma.cc/GFY6-BJNE</a>];
Settlement Agreement with Rite Aid Corp. (Nov. 1, 2021), <a href="https://archive.ada.gov/rite_aid_sa.pdf">https://archive.ada.gov/rite_aid_sa.pdf</a> [<a href="https://perma.cc/4HBF-RBK2">https://perma.cc/4HBF-RBK2</a>].
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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.
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\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), <a href="https://www.w3.org/TR/WCAG21/">https://www.w3.org/TR/WCAG21/</a> [<a href="https://perma.cc/UB8A-GG2F">https://perma.cc/UB8A-GG2F</a>].
\89\ See e.g., Exploring WCAG 2.1 for Australian government
services, Australian Government Digital Transformation Agency (Aug.
22, 2018), <a href="https://www.dta.gov.au/blogs/exploring-wcag-21-australian-government-services">https://www.dta.gov.au/blogs/exploring-wcag-21-australian-government-services</a>. A Perma archive link was unavailable
for this citation.
\90\ Web Accessibility, European Comm'n (updated July 13, 2022),
<a href="https://digital-strategy.ec.europa.eu/en/policies/web-accessibility">https://digital-strategy.ec.europa.eu/en/policies/web-accessibility</a>
[<a href="https://perma.cc/LSG9-XW7L">https://perma.cc/LSG9-XW7L</a>]; Accessibility Requirements for ICT
Products and Services, European Telecomm. Standards Institute, 45-
51, 64-78 (Mar. 2021), <a href="https://www.etsi.org/deliver/etsi_en/301500_301599/301549/03.02.01_60/en_301549v030201p.pdf">https://www.etsi.org/deliver/etsi_en/301500_301599/301549/03.02.01_60/en_301549v030201p.pdf</a> [<a href="https://perma.cc/5TEZ-9GC6">https://perma.cc/5TEZ-9GC6</a>].
\91\ See 14 CFR 382.43(c)-(e), 382.57.
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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.
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\92\ W3C[supreg], Web Content Accessibility Guidelines 2.2 (May
21, 2021), <a href="https://www.w3.org/TR/2021/WD-WCAG22-20210521/">https://www.w3.org/TR/2021/WD-WCAG22-20210521/</a> [<a href="https://perma.cc/M4G8-Z2GY">https://perma.cc/M4G8-Z2GY</a>].
\93\ See, e.g., W3C[supreg], Web Content Accessibility
Guidelines 2.2 (May 17, 2023), <a href="https://www.w3.org/TR/WCAG22/">https://www.w3.org/TR/WCAG22/</a>
[<a href="https://perma.cc/SXA7-RF32">https://perma.cc/SXA7-RF32</a>].
\94\ W3C[supreg], What's New in WCAG 2.2 Draft (May 17, 2023),
<a href="https://www.w3.org/WAI/standards-guidelines/wcag/new-in-22/">https://www.w3.org/WAI/standards-guidelines/wcag/new-in-22/</a> [<a href="https://perma.cc/Y67R-SFSE">https://perma.cc/Y67R-SFSE</a>].
\95\ Id.
\96\ Id.
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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\
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\97\ W3C[supreg], Web Content Accessibility Guidelines (WCAG) 2
Level A Conformance (July 13, 2020), <a href="https://www.w3.org/WAI/WCAG2A-Conformance">https://www.w3.org/WAI/WCAG2A-Conformance</a> [<a href="https://perma.cc/KT74-JNHG">https://perma.cc/KT74-JNHG</a>].
\98\ Id.
\99\ Id.
\100\ See W3C[supreg], Understanding Conformance, Understanding
Requirement 1, <a href="https://www.w3.org/WAI/WCAG21/Understanding/conformance">https://www.w3.org/WAI/WCAG21/Understanding/conformance</a> [<a href="https://perma.cc/9ZG9-G5N8">https://perma.cc/9ZG9-G5N8</a>].
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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.
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\101\ See W3C[supreg], Web Accessibility Laws & Policies (Mar.
21, 2018), <a href="https://www.w3.org/WAI/policies/">https://www.w3.org/WAI/policies/</a> [<a href="https://perma.cc/5EBY-3WX4">https://perma.cc/5EBY-3WX4</a>].
\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), <a href="https://www.w3.org/TR/WCAG21/#cc1">https://www.w3.org/TR/WCAG21/#cc1</a> [<a href="https://perma.cc/ZL6N-VQX4">https://perma.cc/ZL6N-VQX4</a>]. 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.
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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.
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\104\ See Federal Social Media Accessibility Toolkit Hackpad,
<a href="http://Digital.gov">Digital.gov</a> (updated June 21, 2022), <a href="https://digital.gov/resources/federal-social-media-accessibility-toolkit-hackpad/">https://digital.gov/resources/federal-social-media-accessibility-toolkit-hackpad/</a> [<a href="https://perma.cc/DJ8X-UCHA">https://perma.cc/DJ8X-UCHA</a>].
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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\
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\105\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
<a href="https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/">https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/</a> [<a href="https://perma.cc/W8HK-Z5QK">https://perma.cc/W8HK-Z5QK</a>].
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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\
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\106\ See 82 FR 5790, 5815 (Jan. 18, 2017).
\107\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
<a href="https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/">https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/</a> [<a href="https://perma.cc/W8HK-Z5QK">https://perma.cc/W8HK-Z5QK</a>].
\108\ W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), <a href="https://www.w3.org/TR/WCAG21/">https://www.w3.org/TR/WCAG21/</a> [<a href="https://perma.cc/UB8A-GG2F">https://perma.cc/UB8A-GG2F</a>].
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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\
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\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.
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\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 . . . .'').
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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.
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\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).
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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.
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\112\ W3C[supreg], Captions (Live), Understanding SC 1.2.4,
Understanding WCAG 2.0: A Guide to Understanding and Implementing
WCAG 2.0, <a href="http://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-real-time-captions.html">http://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-real-time-captions.html</a> [<a href="https://perma.cc/NV74-U77R">https://perma.cc/NV74-U77R</a>] (emphasis in
original).
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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.
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\113\ See W3C[supreg], Canada (last updated Feb. 9, 2017),
<a href="https://www.w3.org/WAI/policies/canada/">https://www.w3.org/WAI/policies/canada/</a> [<a href="https://perma.cc/W2DS-FAE9">https://perma.cc/W2DS-FAE9</a>].
\114\ See id.
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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\
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\115\ See, e.g., 28 CFR 35.130(b)(7)(i), (f), 35.160(b)(2).
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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.
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\116\ 28 CFR 35.130, 35.160.
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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.
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\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.
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\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\
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\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),
<a href="https://www.webopedia.com/definitions/third-party-apps/">https://www.webopedia.com/definitions/third-party-apps/</a> [<a href="https://perma.cc/SBW3-RRGN">https://perma.cc/SBW3-RRGN</a>].
\121\ See ParkMobile Parking App, <a href="https://parkmobile.io">https://parkmobile.io</a> [<a href="https://perma.cc/G7GY-MDFE">https://perma.cc/G7GY-MDFE</a>].
\122\ See Using Mobile Apps in Government, IBM Ctr. for the Bus.
of Gov't, at 32-33 (2015), <a href="https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf">https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf</a>
[<a href="https://perma.cc/248X-8A6C">https://perma.cc/248X-8A6C</a>].
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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 stude
[…truncated; see source link]Indexed from Federal Register on August 4, 2023.
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