Rule2024-07758
Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 24, 2024
Effective
June 24, 2024
Issuing agencies
Justice Department
Abstract
The Department of Justice ("Department") issues its final rule revising the regulation implementing title II of the Americans with Disabilities Act ("ADA") 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 applications ("apps").
Full Text
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[Federal Register Volume 89, Number 80 (Wednesday, April 24, 2024)]
[Rules and Regulations]
[Pages 31320-31396]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07758]
[[Page 31319]]
Vol. 89
Wednesday,
No. 80
April 24, 2024
Part II
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; Final
Rule
Federal Register / Vol. 89, No. 80 / Wednesday, April 24, 2024 /
Rules and Regulations
[[Page 31320]]
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DEPARTMENT OF JUSTICE
28 CFR Part 35
[CRT Docket No. 144; AG Order No. 5919-2024]
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: Final rule.
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SUMMARY: The Department of Justice (``Department'') issues its final
rule revising the regulation implementing title II of the Americans
with Disabilities Act (``ADA'') 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
applications (``apps'').
DATES:
Effective date: This rule is effective June 24, 2024.
Compliance dates: A public entity, other than a special district
government, with a total population of 50,000 or more shall begin
complying with this rule April 24, 2026. A public entity with a total
population of less than 50,000 or any public entity that is a special
district government shall begin complying with this rule April 26,
2027.
Incorporation by reference: The incorporation by reference of
certain material listed in the rule is approved by the Director of the
Federal Register as of June 24, 2024.
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 rule in an alternative format by calling the
ADA Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY).
This rule is also available on <a href="http://www.ada.gov">www.ada.gov</a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of 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 public entity.\1\ The Department has consistently made
clear that the title II nondiscrimination requirements apply to all
services, programs, and activities of public entities (also referred to
as ``government services''), including those provided via the web. It
also includes those provided via mobile apps.\2\ In this rule, the
Department establishes 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
government services for individuals with disabilities.
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\1\ 42 U.S.C. 12132. The Department uses the phrases ``State and
local government entities'' and ``public entities'' interchangeably
throughout this rule to refer to ``public entit[ies]'' as defined in
42 U.S.C. 12131(1) that are covered under part A of title II of the
ADA.
\2\ As discussed in the proposed definition in this rule, mobile
apps are software applications that are downloaded and designed to
run on mobile devices, such as smartphones and tablets.
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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, obtain up-to-date health and safety
resources, request copies of vital records, access mass transit
schedules, and complete numerous other tasks via government websites.
Individuals can perform many of these same functions on mobile apps.
Often, however, State and local government entities' web- and mobile
app-based services are not designed or built accessibly and as a result
are not equally available to individuals with disabilities. Just as
stairs can exclude people who use wheelchairs from accessing government
buildings, inaccessible web content and mobile apps can exclude people
with a range of disabilities from accessing government services.
It is critical to ensure that individuals with disabilities can
access important web content and mobile apps quickly, easily,
independently, privately, and equally. Accessible web content and
mobile apps help to make this possible. By allowing individuals 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 rights with respect to
speech, assembly, association, petitioning, voting, and due process of
law.
Accordingly, the Department is establishing 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, and public comments have
reinforced, that the requirements described in this rule are necessary
to assure ``equality of opportunity, full participation, independent
living, and economic self-sufficiency'' for individuals with
disabilities, as set forth in the ADA.\3\
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\3\ 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.\4\ 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 (``Rehabilitation Act''), as amended, 29
U.S.C. 794 (``section 504''), to all activities of State and local
government entities regardless of whether the entities receive Federal
financial assistance.\5\ Part A of title II protects qualified
individuals with disabilities from discrimination on the basis of
disability in services, programs, and activities of 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.\6\
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\4\ 42 U.S.C. 12101-12213.
\5\ 42 U.S.C. 12131-12165.
\6\ 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(a), 12164.
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The Department 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
is responsible for ensuring consistency and effectiveness in the
implementation of section 504 across the Federal Government (aside from
provisions relating to equal
[[Page 31321]]
employment).\7\ Given Congress's intent for parity between section 504
and title II of the ADA, the Department must also ensure the
consistency of any related agency interpretations of those
provisions.\8\ 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
web content and mobile apps, across the Federal Government.
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\7\ E.O. 12250 secs. 1-201(c), 1-503 (Nov. 2, 1980), 45 FR
72995, 72995, 72997 (Nov. 4, 1980).
\8\ U.S. Dep't of Just., Disability Rights Section: Federal
Coordination of Section 504 and Title II of the ADA, C.R. Div. (Oct.
12, 2021), https://www.justice.gov/crt/disability-rights-
section#:~:text=Federal%20Coordination%20of%20Section%20504,required%
20by%20Executive%20Order%2012250 [<a href="https://perma.cc/S5JX-WD82">https://perma.cc/S5JX-WD82</a>] (see
Civil Rights Division (CRT) Memorandum on Federal Agencies'
Implementation of Title II of the Americans with Disabilities Act
and Section 504 of the Rehabilitation Act under the heading
``Section 504 and ADA Federal Coordination Resources'').
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C. Organization of This Rule
Appendix D to 28 CFR part 35 provides a section-by-section analysis
of the Department's changes to the title II regulation and the
reasoning behind those changes, in addition to responses to public
comments received on the notice of proposed rulemaking (``NPRM'').\9\
The section of appendix D entitled ``Public Comments on Other Issues in
Response to NPRM'' discusses public comments on several issues that are
not otherwise specifically addressed in the section-by-section
analysis. The Final Regulatory Impact Analysis (``FRIA'') and Final
Regulatory Flexibility Analysis (``FRFA'') accompanying this rulemaking
both contain further responses to comments relating to those analyses.
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\9\ 88 FR 51948 (Aug. 4, 2023).
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D. Overview of Key Provisions of This Final Rule
In this final rule, the Department adds a new subpart H to the
title II ADA regulation, 28 CFR part 35, that sets forth technical
requirements for ensuring that web content that State and local
government entities provide or make available, directly or through
contractual, licensing, or other arrangements, is readily accessible to
and usable by individuals with disabilities. Web content is defined by
Sec. 35.104 to mean the information and sensory experience to be
communicated to the user by means of a user agent (e.g., a web
browser), including code or markup that defines the content's
structure, presentation, and interactions. This includes text, images,
sounds, videos, controls, animations, and conventional electronic
documents. Subpart H also sets forth technical requirements for
ensuring the accessibility of mobile apps that a public entity provides
or makes available, directly or through contractual, licensing, or
other arrangements.
The Department adopts an internationally recognized accessibility
standard for web access, the Web Content Accessibility Guidelines
(``WCAG'') 2.1 \10\ published in June 2018, <a href="https://www.w3.org/TR/2018/REC-WCAG21-20180605/">https://www.w3.org/TR/2018/REC-WCAG21-20180605/</a> and <a href="https://perma.cc/UB8A-GG2F">https://perma.cc/UB8A-GG2F</a>,\11\ 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 requiring that public entities comply with the WCAG 2.1
Level AA success criteria and conformance requirements.\12\ 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 final rule but is instead incorporated by
reference.
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\10\ Copyright(copyright) 2023 W3C[supreg]. This document
includes material copied from or derived from <a href="https://www.w3.org/TR/2018/REC-WCAG21-20180605/">https://www.w3.org/TR/2018/REC-WCAG21-20180605/</a> and <a href="https://perma.cc/UB8A-GG2F">https://perma.cc/UB8A-GG2F</a>. As
explained elsewhere, WCAG 2.1 was updated in 2023, but this rule
requires conformance to the 2018 version.
\11\ The Permalink used for WCAG 2.1 throughout this rule shows
the 2018 version of WCAG 2.1 as it appeared on W3C's website at the
time the NPRM was published.
\12\ As explained in more detail under ``WCAG Conformance
Level'' in the section-by-section analysis of Sec. 35.200 in
appendix D, conformance to Level AA requires satisfying the success
criteria labeled Level A as well as those labeled Level AA, in
addition to satisfying the relevant conformance requirements.
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In recognition of the challenges that small public entities may
face with respect to resources for implementing the new requirements,
the Department has staggered the compliance dates for public entities
according to their total population.\13\ This final rule in Sec.
35.200(b)(1) specifies that a public entity, other than a special
district government,\14\ with a total population of 50,000 or more must
ensure that web content and mobile apps that the public entity provides
or makes available, directly or through contractual, licensing, or
other arrangements, comply with WCAG 2.1 Level AA success criteria and
conformance requirements beginning two years after the publication of
this final rule. Under Sec. 35.200(b)(2), a public entity with a total
population of less than 50,000 must comply with these requirements
beginning three years after the publication of this final rule. In
addition, under Sec. 35.200(b)(2), all special district governments
have three years following the publication of this final rule before
they must begin complying with these requirements. After the compliance
date, ongoing compliance with this final rule is required.
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\13\ Total population, defined in Sec. 35.104 and explained
further in the section-by-section analysis, is generally determined
by reference to the population estimate for a public entity (or the
population estimate for a public entity of which an entity is an
instrumentality) as calculated by the United States Census Bureau.
\14\ See U.S. Census Bureau, Special District Governments,
<a href="https://www.census.gov/glossary/?term=Special+district+governments">https://www.census.gov/glossary/?term=Special+district+governments</a>
[<a href="https://perma.cc/8V43-KKL9">https://perma.cc/8V43-KKL9</a>]. ``Special district government'' is
also defined in this rule at Sec. 35.104.
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 has set forth exceptions from
compliance with the technical standard required under Sec. 35.200 for
certain types of content, which are described in detail below in the
section-by-section analysis. If the content falls under an exception,
that means that the public entity generally does not need to make the
content conform to WCAG 2.1 Level AA.
As will be explained more fully, the Department has set forth five
specific exceptions from compliance with the technical standard
required under Sec. 35.200: (1) archived web content; (2)
[[Page 31322]]
preexisting conventional electronic documents, unless such documents
are currently used to apply for, gain access to, or participate in the
public entity's services, programs, or activities; (3) content posted
by a third party, unless the third party is posting due to contractual,
licensing, or other arrangements with the public entity; (4)
conventional electronic documents that are about a specific individual,
their property, or their account and that are password-protected or
otherwise secured; and (5) preexisting social media posts. As discussed
further, if one of these exceptions applies, then the public entity's
web content or content in mobile apps that is covered by an exception
would not need to comply with the rule's technical standard. The
Department has developed these exceptions 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 making accessible key
web content and mobile apps that public entities provide or make
available. However, upon request from a specific individual, a public
entity may have to provide the 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. For example, archived town meeting minutes from
2011 might be covered by an exception from the requirement to conform
to 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
address 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 conforms to the aspects of WCAG 2.1 Level AA
relevant to the person's particular access needs.
The final rule contains a series of other mechanisms that are
designed to make it feasible for public entities to comply with the
rule. The final rule makes clear in Sec. 35.202 the limited
circumstances in which ``conforming alternate versions'' of web
content, as defined in WCAG 2.1, can be used as a means of achieving
accessibility. As WCAG 2.1 defines it, a conforming alternate version
is a separate version of web content that is accessible, up to date,
contains the same information and functionality as the inaccessible web
content, and can be reached in particular ways, such as through a
conforming page or an accessibility-supported mechanism. However, the
Department is concerned that WCAG 2.1 could be interpreted to permit a
segregated approach and a worse experience for individuals with
disabilities. The Department also 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 these reasons, as discussed in the section-by-section
analysis of Sec. 35.202, conforming alternate versions are permissible
only when it is not possible to make web content directly accessible
due to technical or legal limitations. Also, under Sec. 35.203, the
final rule allows 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 of the web content or mobile app. Nothing in this final rule
prohibits an entity from going above and beyond the minimum
accessibility standards this rule sets out.
Additionally, the final rule in Sec. Sec. 35.200(b)(1) and (2) and
35.204 explains that conformance to WCAG 2.1 Level AA is not required
under title II of the ADA to the extent that such conformance would
result in a fundamental alteration in the nature of a service, program,
or activity of the public entity or in undue financial and
administrative burdens.
The final rule also explains in Sec. 35.205 the limited
circumstances in which a public entity that is not in full compliance
with the technical standard will be deemed to have met the requirements
of Sec. 35.200. As discussed further in the section-by-section
analysis of Sec. 35.205, a public entity will be deemed to have
satisfied its obligations under Sec. 35.200 in the limited
circumstance in which the public entity can demonstrate that its
nonconformance to the technical standard has such a minimal impact on
access that it would not affect the ability of individuals with
disabilities to use the public entity's web content or mobile app to
access the same information, engage in the same interactions, conduct
the same transactions, and otherwise participate in or benefit from the
same services, programs, and activities as individuals without
disabilities, in a manner that provides substantially equivalent
timeliness, privacy, independence, and ease of use.
More information about these provisions is provided in the section-
by-section analysis.
E. Summary of Costs and Benefits
To estimate the costs and benefits associated with this rule, the
Department conducted a FRIA. This analysis is required for significant
regulatory actions under Executive Order 12866, as amended.\15\ The
FRIA serves to inform the public about the rule's costs and benefits to
society, taking into account both quantitative and qualitative costs
and benefits. A detailed summary of the FRIA is included in Section IV
of this preamble. Table 2 below shows a high-level overview of the
Department's monetized findings. Further, this 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. Non-
monetized costs and benefits are discussed in the FRIA.
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\15\ See E.O. 14094, 88 FR 21879 (Apr. 6, 2023); E.O. 13563, 76
FR 3821 (Jan. 18, 2011); E.O. 13272, 67 FR 53461 (Aug. 13, 2002);
E.O. 13132, 64 FR 43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735
(Sept. 30, 1993).
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Comparing annualized costs and benefits of this rule, monetized
benefits to society outweigh the costs. Net annualized benefits over
the first 10 years following publication of this rule total $1.9
billion per year using a 3 percent discount rate and $1.5 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
the benefits tend to have a delay before beginning to accrue.
To consider the relative magnitude of the estimated costs of this
regulation, the Department compares the costs to revenues for public
entities. Because calculating this ratio for every public entity would
be impractical, the Department used the estimated average annualized
cost compared to the average annual revenue by each public entity type.
The costs for each public entity type and size are generally estimated
to be below 1 percent of revenues (the one exception is small
independent community colleges, for which the cost-to-revenue ratio is
1.05 percent and 1.10 percent using a 3 percent and 7 percent
[[Page 31323]]
discount rate, respectively),\16\ so the Department does not believe
the rule will be unduly burdensome or costly for public entities.\17\
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\16\ However, the Department notes that revenue for small
independent community colleges was estimated using the 2012 Census
of Governments, so revenue for small independent community colleges
would likely be underestimated if small independent community
colleges had a greater share of total local government revenue in
2022 than in 2012. If this were true, the Department expects that
the cost-to-revenue ratio for small independent community colleges
would be lower.
\17\ As a point of reference, the United States Small Business
Administration advises agencies that a potential indicator that the
impact of a 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. See U.S. Small Bus. Admin., A
Guide for Government Agencies: How to Comply with the Regulatory
Flexibility Act, at 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/PWL9-ZTW6">https://perma.cc/PWL9-ZTW6</a>]; see also U.S. Env't Prot. Agency, EPA's Action
Development Process: Final Guidance for EPA Rulewriters: Regulatory
Flexibility Act, at 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'').
Table 2--10-Year Average Annualized Comparison of Costs and Benefits
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3% Discount 7% Discount
Figure rate rate
------------------------------------------------------------------------
Average annualized costs (millions)..... $3,331.3 $3,515.0
Average annualized benefits (millions).. $5,229.5 $5,029.2
Net benefits (millions)................. $1,898.2 $1,514.2
Cost-to-benefit ratio................... 0.6 0.7
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II. Relationship to Other Laws
The ADA and the Department'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 (29 U.S.C. 791)
or its accompanying regulations.\18\ 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 the rights
of individuals with disabilities or individuals associated with
them.\19\
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\18\ 42 U.S.C. 12201(a); 28 CFR 35.103(a).
\19\ 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,\20\ and those requirements are distinct from the
obligations under this rule.
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\20\ 42 U.S.C. 12111-12117.
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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 include
longstanding, affirmative obligations for covered schools to identify
children with disabilities, and both require covered schools to provide
a free appropriate public education.\21\ This final rule builds on, and
does not supplant, those preexisting requirements. A public entity must
continue to meet all of its existing obligations under other laws.
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\21\ See 20 U.S.C. 1412; 29 U.S.C. 794; 34 CFR 104.32 through
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
(title I), State and local government entities' services, programs, and
activities (title II, part A), transportation (title II, part B), and
places of public accommodation (title III). The ADA 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.\22\ Section 204(a) of title II and section 306(b) of
title III of the ADA 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.\23\
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 of State
and local government entities.
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\22\ 42 U.S.C. 12101 et seq.
\23\ 42 U.S.C. 12134(a), 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),\24\ and include the ADA
Standards for Accessible Design (``ADA Standards'').\25\ At that time,
the web was in its infancy--and mobile apps did not exist--so State and
local government entities did not use either the web or mobile apps as
a means of providing services to the public. Thus, web content and
mobile apps were 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. Public entities and members of the public
also now rely on mobile apps for critical government services.
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\24\ 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, and office
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-12189.
\25\ See 28 CFR 35.104, 36.104.
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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.\26\ Under title II,
this includes ensuring that individuals with disabilities are
[[Page 31324]]
not, by reason of such disability, excluded from participation in or
denied the benefits of the services, programs, or 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, applications for housing, and
applications for benefits.\27\ The Department has since reiterated this
interpretation in a variety of online contexts.\28\ Title II of the ADA
also applies when public entities use mobile apps to offer their
services, programs, or activities.
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\26\ See Letter for Tom Harkin, U.S. Senator, from Deval L.
Patrick, Assistant Attorney General, Civil Rights Division, U.S.
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>].
\27\ See 42 U.S.C. 12132.
\28\ 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. 21, 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 Nueces County, Texas Under the Americans with
Disabilities Act (effective Jan. 30, 2015), <a href="https://archive.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html">https://archive.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>]; 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>].
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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 had
not previously adopted specific technical requirements for web content
and mobile apps 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.
The Department has consistently heard from members of the public--
including public entities and individuals 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 entitled ``Accessibility of State and Local Government
websites to People with Disabilities,'' which provides tips for State
and local government entities on ways they can make their websites
accessible so that they can better ensure that individuals with
disabilities have equal access to the services, programs, and
activities that are provided through those websites.\29\
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\29\ 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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In March 2022, the Department released additional guidance
addressing web accessibility for individuals with disabilities.\30\
This guidance 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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\30\ 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.\31\ 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 opportunity to
individuals with disabilities. Websites--and often mobile apps--allow
members of the public to get information or request a service within
just a few minutes, and often to do so independently. 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.
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\31\ 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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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 could 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. A staffed telephone line also may not be
accessible to someone who is deafblind, or who may have combinations of
other disabilities, such as a coordination issue impacting typing and
an audio processing disability impacting comprehension over the phone.
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 opportunity in the way that an accessible website can.
C. The Department's Previous Web Accessibility-Related Rulemaking
Efforts
The Department has previously pursued rulemaking efforts regarding
web accessibility under title II. On July 26, 2010, the Department's
advance notice of proposed rulemaking (``ANPRM'') entitled
``Nondiscrimination on the Basis of Disability; Accessibility of Web
Information and Services of State and Local Government Entities and
Public Accommodations'' was published in the Federal Register.\32\ The
ANPRM
[[Page 31325]]
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.\33\ In the ANPRM, the Department sought information on
various topics, including 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.\34\ 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.\35\ The Department received approximately 400 public
comments addressing issues germane to both titles II and III in
response to the ANPRM. The Department later announced that it had
decided to pursue separate rulemakings addressing web accessibility
under titles II and III.\36\
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\32\ 75 FR 43460 (July 26, 2010).
\33\ Id.
\34\ 75 FR 43465-43467.
\35\ Id.
\36\ See U.S. Dep't of Just., Statement of Regulatory Priorities
(Fall 2015), <a href="https://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html">https://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.\37\ The Supplemental ANPRM solicited public comment about a
variety of issues regarding establishing technical standards for web
access under title II.\38\ The Department received more than 200 public
comments in response to the title II Supplemental ANPRM.
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\37\ Nondiscrimination on the Basis of Disability; Accessibility
of Web Information and Services of State and Local Government
Entities, 81 FR 28658 (May 9, 2016).
\38\ 81 FR 28662-28686.
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On December 26, 2017, the Department published a document 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.\39\ 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.\40\ Those Executive orders were
revoked by Executive Order 13992 in early 2021.\41\
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\39\ Nondiscrimination on the Basis of Disability; Notice of
Withdrawal of Four Previously Announced Rulemaking Actions, 82 FR
60932 (Dec. 26, 2017).
\40\ See Letter for Charles E. Grassley, U.S. Senator, from
Stephen E. Boyd, Assistant Attorney General, Civil Rights Division,
U.S. 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>].
\41\ E.O. 13992 sec. 2, 86 FR 7049, 7049 (Jan. 20, 2021).
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The Department is now reengaging in efforts to promulgate
regulations establishing technical standards for web accessibility as
well as mobile app accessibility for public entities. On August 4,
2023, the Department published an NPRM in the Federal Register as part
of this rulemaking effort.\42\ The NPRM set forth the Department's
specific proposals and sought public feedback. The NPRM included more
than 60 questions for public input.\43\ The public comment period
closed on October 3, 2023.\44\ The Department received approximately
345 comments from members of the public, including individuals with
disabilities, public entities, disability advocacy groups, members of
the accessible technology industry, web developers, and many others.
The Department also published a fact sheet describing the NPRM's
proposed requirements in plain language to help ensure that members of
the public understood the rule and had an opportunity to provide
feedback.\45\ In addition, the Department attended listening sessions
with various stakeholders while the public comment period was open.
Those sessions provided important opportunities to receive through an
additional avenue the information that members of the public wanted to
share about the proposed rule. The three listening sessions that the
Department attended were hosted by the U.S. Small Business
Administration (``SBA'') Office of Advocacy, the Association on Higher
Education and Disability (``AHEAD''), and the Great Lakes ADA Center at
the University of Illinois at Chicago, in conjunction with the ADA
National Network. The sessions convened by the SBA Office of Advocacy
and the Great Lakes ADA Center were open to members of the public.
There were approximately 200 attendees at the SBA session and 380
attendees at the Great Lakes ADA Center session.\46\ The session with
AHEAD included two representatives from AHEAD along with five
representatives from public universities. The Department welcomed the
opportunity to hear from public stakeholders. However, the Department
informed attendees that these listening sessions did not serve as a
substitute for submitting written comments during the notice and
comment period.
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\42\ Nondiscrimination on the Basis of Disability; Accessibility
of Web Information and Services of State and Local Government
Entities, 88 FR 51948 (Aug. 4, 2023).
\43\ 88 FR 51958-51986.
\44\ See 88 FR 51948.
\45\ U.S. Dep't of Just., Fact Sheet: Notice of Proposed
Rulemaking on Accessibility of Web Information and Services of State
and Local Government Entities, <a href="http://ADA.gov">ADA.gov</a> (July 20, 2023), <a href="https://www.ada.gov/resources/2023-07-20-web-nprm/#">https://www.ada.gov/resources/2023-07-20-web-nprm/#</a> [<a href="https://perma.cc/B7JL-9CVS">https://perma.cc/B7JL-9CVS</a>].
\46\ U.S. Dep't of Just., Ex Parte Communication Record on
Proposed Rule on Nondiscrimination on the Basis of Disability;
Accessibility of Web Information and Services of State and Local
Government Entities and Public Accommodations (Sept. 29, 2023),
<a href="https://www.regulations.gov/document/DOJ-CRT-2023-0007-0158">https://www.regulations.gov/document/DOJ-CRT-2023-0007-0158</a> [<a href="https://perma.cc/43JX-AAMG">https://perma.cc/43JX-AAMG</a>]; U.S. Dep't of Just., Ex Parte Communication
Record on Proposed Rule on Nondiscrimination on the Basis of
Disability; Accessibility of Web Information and Services of State
and Local Government Entities and Public Accommodations (Nov. 17,
2023), <a href="https://www.regulations.gov/document/DOJ-CRT-2023-0007-0355">https://www.regulations.gov/document/DOJ-CRT-2023-0007-0355</a>
[<a href="https://perma.cc/W45S-XDQH">https://perma.cc/W45S-XDQH</a>].
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D. Need for Department Action
1. Use of Web Content by Title II Entities
As public comments have reinforced, public entities regularly use
the web to offer services, programs, or activities to the public.\47\
The web can often help public entities streamline their services,
programs, or activities and disseminate important information quickly
and effectively. For example, 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 those service requests online. Public entities' websites
also offer the opportunity for people to, for example, renew their
vehicle registrations, submit complaints, purchase event permits,
reserve public facilities, sign up for recreational activities, and pay
traffic fines and property taxes, making some of these
[[Page 31326]]
otherwise time-consuming tasks relatively easy and expanding their
availability beyond regular business hours. Access to these services
via the web can be particularly important for those who live in rural
communities and might otherwise need to travel long distances to reach
government buildings.\48\
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\47\ See, e.g., John B. Horrigan & Lee Rainie, Pew Research
Ctr., Connecting with Government or Government Data (Apr. 21, 2015),
<a href="https://www.pewresearch.org/internet/2015/04/21/connecting-with-government-or-government-data/">https://www.pewresearch.org/internet/2015/04/21/connecting-with-government-or-government-data/</a> [<a href="https://perma.cc/BFA6-QRQU">https://perma.cc/BFA6-QRQU</a>];
Samantha Becker et al., Opportunity for All: How the American Public
Benefits from internet Access at U.S. Libraries, at 7-8, 120-27
(2010), <a href="https://www.imls.gov/sites/default/files/publications/documents/opportunityforall_0.pdf">https://www.imls.gov/sites/default/files/publications/documents/opportunityforall_0.pdf</a> [<a href="https://perma.cc/3FDG-553G">https://perma.cc/3FDG-553G</a>].
\48\ See, e.g., NORC Walsh Ctr. for Rural Health Analysis &
Rural Health Info. Hub, Access to Care for Rural People with
Disabilities Toolkit (Dec. 2016), <a href="https://www.ruralhealthinfo.org/toolkits/disabilities.pdf">https://www.ruralhealthinfo.org/toolkits/disabilities.pdf</a> [<a href="https://perma.cc/YX4E-QWEE">https://perma.cc/YX4E-QWEE</a>].
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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.
Applications for many Federal benefits, such as unemployment benefits
and food stamps, are also available through State websites. 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.
People also rely on public entities' websites to engage in civic
participation. People can frequently watch local public hearings, find
schedules for 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.
Public entities are also using websites as an integral part of
public education.\49\ Public schools at all levels, including public
colleges and universities, offer programs, reading material, and
classroom instruction through websites. 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; for course registration
and assignments; and for a wide variety of administrative and
logistical functions in which students must participate. Similarly, in
many public elementary and secondary school settings, teachers and
administrators communicate via the web to parents and students about
grades, assignments, and administrative matters.
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\49\ See, e.g., 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>];
Natasha Singer, Online Schools Are Here To Stay, Even After the
Pandemic, N.Y. Times, Apr. 11, 2021, <a href="https://www.nytimes.com/2021/04/11/technology/remote-learning-online-school.html">https://www.nytimes.com/2021/04/11/technology/remote-learning-online-school.html</a> [<a href="https://perma.cc/ZYF6-79EE">https://perma.cc/ZYF6-79EE</a>] (June 23, 2023); Institute of Education
Sciences, National Ctr. for Education Statistics, Distance Learning,
National Center for Education Statistics, <a href="https://nces.ed.gov/fastfacts/display.asp?id=80">https://nces.ed.gov/fastfacts/display.asp?id=80</a> [<a href="https://perma.cc/XZT2-UKAD">https://perma.cc/XZT2-UKAD</a>].
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As public comments on the NPRM have reinforced, 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 forced
millions of Americans to stay home for extended periods.\50\ In
response, the American public increasingly turned to the web for work,
activities, and learning.\51\ A study conducted in April 2021 found
that 90 percent of adults reported the web was essential or important
to them.\52\ Several commenters on the NPRM specifically highlighted
challenges underscored by the COVID-19 pandemic such as the denial of
access to safety information and pandemic-related services, including
vaccination appointments.
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\50\ See Volker Stocker et al., Chapter 2: COVID-19 and the
Internet: Lessons Learned, in Beyond the Pandemic? Exploring the
Impact of COVID-19 on Telecommunications and the Internet 17, 21-29
(2023), <a href="https://www.emerald.com/insight/content/doi/10.1108/978-1-80262-049-820231002/full/pdf">https://www.emerald.com/insight/content/doi/10.1108/978-1-80262-049-820231002/full/pdf</a> [<a href="https://perma.cc/82P5-GVRV">https://perma.cc/82P5-GVRV</a>]; Colleen
McClain et al., Pew Research Ctr., The Internet and the Pandemic 3
(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>].
\51\ See Jina Suh et al., Disparate Impacts on Online
Information Access During the COVID-19 Pandemic, 13 Nature Comms. 1,
2-6 (Nov. 19, 2022), <a href="https://www.nature.com/articles/s41467-022-34592-z#Sec6">https://www.nature.com/articles/s41467-022-34592-z#Sec6</a> [<a href="https://perma.cc/CP2X-3ES6">https://perma.cc/CP2X-3ES6</a>]; Sara Fischer & Margaret
Harding McGill, Broadband Usage Will Keep Growing Post-Pandemic,
Axios (May 4, 2021), <a href="https://www.axios.com/2021/05/04/broadband-usage-post-pandemic-increase">https://www.axios.com/2021/05/04/broadband-usage-post-pandemic-increase</a>. A Perma archive link was unavailable
for this citation; 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.
\52\ Colleen McClain et al., Pew Research Ctr., The Internet and
the Pandemic, at 3 (Sept. 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>].
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While important for everyone during the pandemic, access to web-
based services took on heightened importance for people with
disabilities, many of whom face a greater risk of COVID-19 exposure,
serious illness, and death.\53\ A report by the National Council on
Disability indicated that COVID-19 has had a disproportionately
negative impact on the ability of people with disabilities to access
healthcare, education, and employment, among other areas, making remote
access to these opportunities via the web even more important.\54\ 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.
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\53\ 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.'' See Ctrs. for Disease
Control and Prevention, People with Disabilities, <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>].
\54\ See Nat'l Council on Disability, 2021 Progress Report: The
Impact of COVID-19 on People with Disabilities, (Oct. 29, 2021),
<a href="https://www.ncd.gov/report/an-extra/">https://www.ncd.gov/report/an-extra/</a> [<a href="https://perma.cc/2AUU-6R73">https://perma.cc/2AUU-6R73</a>].
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As discussed at greater length below, many public entities' web
content is not fully accessible, which often means that individuals
with disabilities are denied equal access to important services,
programs, or activities.
2. Use of Mobile Applications by Title II Entities
This rule also covers mobile apps because public entities often use
mobile apps to offer their services, programs, or activities to the
public. Mobile apps are software applications that are downloaded and
designed to run on mobile devices, such as smartphones and tablets.\55\
Many public entities use
[[Page 31327]]
mobile apps to provide services and reach the public in various ways,
including the purposes for which public entities use websites, in
addition to others. For example, as with websites, residents can often
use mobile apps provided or made available by public entities to submit
service requests, such as requests to clean graffiti or repair a
street-light outage, and track the status of these requests. Public
entities' apps often take advantage of common features of mobile
devices, such as camera and Global Positioning System (``GPS'')
functions,\56\ so individuals can provide public entities with a
precise description and location of issues. These may include issues
such as potholes,\57\ physical barriers created by illegal dumping or
parking, or curb ramps that need to be fixed to ensure accessibility
for some people with disabilities. 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.\58\ 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.\59\ 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.\60\
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\55\ 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. Mona Bushnell, What Is the Difference Between an App
and a Mobile website?, Bus. News Daily, <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>] (Aug. 3, 2022). A mobile website, by
contrast, 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. Id. Both mobile apps and mobile websites are covered by
this rule.
\56\ See IBM Ctr. for the Bus. of Gov't, Using Mobile Apps in
Government, 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>].
\57\ Id. at 32.
\58\ See id. at 28, 30-31.
\59\ See id. at 7-8.
\60\ See Rob Pegoraro, COVID-19 Tracking Apps, Supported by
Apple and Google, Begin Showing Up in App Stores, USA Today, Aug.
25, 2020, <a href="https://www.usatoday.com/story/tech/columnist/2020/08/25/google-and-apple-supported-coronavirus-tracking-apps-land-states/3435214001/">https://www.usatoday.com/story/tech/columnist/2020/08/25/google-and-apple-supported-coronavirus-tracking-apps-land-states/3435214001/</a> [<a href="https://perma.cc/YH8C-K2F9">https://perma.cc/YH8C-K2F9</a>] (Aug. 26, 2020) (describing
how various states' apps allow contact tracing through anonymized
data and can provide information about testing and other COVID-19
safety practices); Chandra Steele, Does My State Have a COVID-19
Vaccine App, PCMag, <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>] (Feb. 27, 2023).
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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.\61\ Many of these
individuals use assistive technology to enable them to navigate
websites or mobile apps or access information contained on those sites
or apps. For example, individuals who are unable to use their hands may
use speech recognition software to navigate a website or a mobile app,
while individuals who are blind may rely on a screen reader to convert
the visual information on a website or mobile app into speech. Many
websites and mobile apps are coded or presented such that some
individuals with disabilities do not have access to all the information
or features provided on or available on the website or mobile app.\62\
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 and
mobile apps that require timed responses from users but do not give
users the opportunity to indicate that they need more time to respond.
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\61\ See Section 2.2, ``Number of Individuals with
Disabilities,'' in the accompanying FRIA for more information on the
estimated prevalence of individuals with certain disabilities.
\62\ See W3C, Diverse Abilities and Barriers, <a href="https://www.w3.org/WAI/people-use-web/abilities-barriers/">https://www.w3.org/WAI/people-use-web/abilities-barriers/</a> [<a href="https://perma.cc/DXJ3-BTFW">https://perma.cc/DXJ3-BTFW</a>] (May 15, 2017).
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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 individuals with disabilities.\63\ The study found that
23 percent of the mobile apps reviewed did not provide content
descriptions of images for most of their image-based buttons.\64\ As a
result, the functionality of those buttons is not accessible for people
who use screen readers.\65\ Additionally, other mobile apps may be
inaccessible if they do not allow text resizing, which can provide
larger text for people with vision disabilities.\66\
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\63\ See Large-Scale Analysis Finds Many Mobile Apps Are
Inaccessible, Univ. of Washington CREATE (Mar. 1, 2021), <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>].
\64\ Id.
\65\ Id.
\66\ See Lucia Cerchie, Text Resizing in iOS and Android, The
A11y Project (Jan. 28, 2021), <a href="https://www.a11yproject.com/posts/text-resizing-in-ios-and-android/">https://www.a11yproject.com/posts/text-resizing-in-ios-and-android/</a> [<a href="https://perma.cc/C29M-N2J6">https://perma.cc/C29M-N2J6</a>].
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Furthermore, many websites and mobile apps provide information
visually, without features that allow screen readers or other assistive
technology to retrieve the information so it can be presented in an
accessible manner. A common barrier to accessibility is an image or
photograph without corresponding text (``alternative text'' or ``alt
text'') describing the image. Generally, 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 headings that facilitate navigation using assistive
technology, they may be difficult or impossible for someone using
assistive technology to navigate.\67\ Additionally, websites or mobile
apps may fail to present tables in a way that allows the information in
the table to be interpreted by someone who is using assistive
technology.\68\ Web-based forms, which are an essential part of
accessing government services, are often inaccessible to individuals
with disabilities who use assistive technology. For example, field
elements on forms, which are the empty boxes on forms that receive
input for 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 people using
assistive technology to fill out online forms, pay fees and fines, or
otherwise participate in government services, programs, or activities
using a website. Some governmental entities use inaccessible third-
party websites and mobile apps to accept online payments, while others
request public input through their own inaccessible websites and mobile
apps. As commenters have emphasized, these barriers greatly impede the
ability of individuals with
[[Page 31328]]
disabilities to access the services, programs, or activities offered by
public entities via the web and mobile apps.
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\67\ See, e.g., W3C, WCAG 2.1 Understanding Docs: Understanding
SC 1.3.1: Info and Relationships (Level A), <a href="https://www.w3.org/WAI/WCAG21/Understanding/info-and-relationships">https://www.w3.org/WAI/WCAG21/Understanding/info-and-relationships</a> [<a href="https://perma.cc/9XRQ-HWWW">https://perma.cc/9XRQ-HWWW</a>] (June 20, 2023).
\68\ See, e.g., W3C, Tables Tutorial, <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>] (Feb. 16, 2023).
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In many instances, removing certain web content and mobile app
accessibility 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.\69\ Alt
text can be added to the coding of a website without any specialized
equipment.\70\ Similarly, adding headings, which facilitate page
navigation for those using screen readers, can often be done easily as
well.\71\
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\69\ W3C, Images Tutorial, <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>] (Feb. 08, 2022).
\70\ Id.
\71\ W3C, Technique G130: Providing Descriptive Headings,
<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>] (June 20, 2023).
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Public comments on the NPRM described the lack of independence, and
the resulting lack of privacy, that can stem from accessibility
barriers. These commenters noted that without full and equal access to
digital spaces, individuals with disabilities must constantly rely on
support from others to perform tasks they could complete themselves if
the online infrastructure enabled accessibility. Commenters noted that
when using public entities' inaccessible web content or mobile apps for
interactions that involve confidential information, individuals with
disabilities must forfeit privacy and independence to seek assistance.
Commenters pointed out that constantly needing assistance from others
not only impacts self-confidence and perceptions of self-worth, but
also imposes a costly and burdensome ``time tax'' because it means that
individuals with disabilities must spend more time and effort to gain
access than individuals without disabilities.
Commenters also pointed out that accessible digital spaces benefit
everyone. Just as the existence of curb cuts benefits people in many
different scenarios--such as those using wheelchairs, pushing
strollers, and using a trolley to deliver goods--accessible web content
and mobile apps are generally more user friendly. For example,
captioning is often used by individuals viewing videos in quiet public
spaces and sufficient color contrast makes it generally easier to read
text.
4. Inadequacy of Voluntary Compliance With Technical Standards
The web has changed significantly, and its use has become far more
prevalent, since Congress enacted the ADA in 1990 and since the
Department subsequently promulgated its first ADA regulations. Neither
the ADA nor the Department's regulations specifically addressed public
entities' use of web content and mobile apps to provide their services,
programs, or activities. Congress contemplated, however, that the
Department would apply title II, part A of the statute in a manner that
would adjust over time with changing circumstances and Congress
delegated authority to the Attorney General to promulgate regulations
to carry out the ADA's mandate under title II, part A.\72\ 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.\73\
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\72\ See H.R. Rep. No. 101-485, pt. 2, at 108 (1990); 42 U.S.C.
12134(a).
\73\ Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities, 56 FR 35544, 35566
(July 26, 1991); see 28 CFR part 36, appendix 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.'' \74\ The Department has affirmed the application of
the statute to websites in multiple technical assistance documents over
the past two decades.\75\ 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.\76\ As State and local government entities have increasingly
turned to mobile apps to offer services, programs, or activities, the
Department has enforced those entities' title II obligations in that
context as well.\77\ 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, the Internet Society publishes computer security
policies and procedures for websites, and the World Wide Web Consortium
(``W3C'') 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 W3C created the WCAG.
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\74\ See 28 CFR 35.102.
\75\ 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>]; U.S. Dep't of Just., ADA Best Practices Tool Kit for State
and Local Governments: Chapter 5: website Accessibility Under Title
II of the ADA, <a href="http://ADA.gov">ADA.gov</a> (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, <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> ]; see also supra Section III.B of this preamble.
\76\ U.S. Dep't of Just., Project Civic Access, <a href="http://ADA.gov">ADA.gov</a>, <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>].
\77\ See, e.g., Settlement Agreement Between the United States
of America and Service Oklahoma (Jan. 22, 2024), <a href="https://www.justice.gov/d9/2024-01/service_oklahoma_fully_executed_agreement.01.22.24.pdf">https://www.justice.gov/d9/2024-01/service_oklahoma_fully_executed_agreement.01.22.24.pdf</a> [<a href="https://perma.cc/MB2A-BKHY">https://perma.cc/MB2A-BKHY</a>]; Settlement Agreement Between the United States
of America and the Champaign-Urbana Mass Transit District (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/Y3CX-EHCC">https://perma.cc/Y3CX-EHCC</a>].
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Many organizations, however, have indicated that voluntary
compliance with these accessibility guidelines has not resulted in
equal access for individuals with disabilities; accordingly, they have
urged the Department to take regulatory action to ensure web content
and mobile app accessibility.\78\ 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.\79\ The Department has also heard
[[Page 31329]]
from State and local government entities and businesses asking for
clarity on the ADA's requirements for websites through regulatory
efforts.\80\ Public commenters responding to the NPRM have also
emphasized the need for regulatory action on this issue to ensure that
public entities' services, programs, and activities offered via the web
and mobile apps are accessible, and have expressed that this rule is
long overdue.
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\78\ 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 Technology & Telecommunications and
Rights Task Force, re: Adopting Regulatory and Subregulatory
Initiatives To Advance Accessibility and Usability of websites,
Online Systems, Mobile Applications, and Other Forms of Information
and Communication Technology Under Titles II and III of the ADA
(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>].
\79\ See Nat'l 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/assets/uploads/reports/2006/ncd-need-for-regulation-prohibiting-it-discrimination-2006.pdf">https://www.ncd.gov/assets/uploads/reports/2006/ncd-need-for-regulation-prohibiting-it-discrimination-2006.pdf</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., Nat'l
Council on Disability, National Disability Policy: A Progress
Report: Executive Summary (Oct. 7, 2016), <a href="https://files.eric.ed.gov/fulltext/ED571832.pdf">https://files.eric.ed.gov/fulltext/ED571832.pdf</a> [<a href="https://perma.cc/ZH3P-8LCZ">https://perma.cc/ZH3P-8LCZ</a>] (urging the
Department to adopt a web accessibility regulation).
\80\ 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 and mobile apps accessible since the
2010 ANPRM was published. Such strides have been supported by the
availability of voluntary web content and mobile app accessibility
standards, as well as by the Department's clearly stated position--
supported by judicial decisions \81\--that all services, programs, and
activities of public entities, including those available on websites,
must be accessible. Still, as discussed above, individuals with
disabilities continue to struggle to obtain access to the web content
and mobile apps of public entities. Many public comments on the NPRM
shared anecdotes of instances where individuals were unable to access
government services, programs, or activities offered via the web and
mobile apps, or had to overcome significant barriers to be able to do
so, in spite of public entities' existing obligations under title II.
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\81\ 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.'').
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The Department has brought enforcement actions to address web
content and mobile app access, resulting in a significant number of
settlement agreements with State and local government entities.\82\
Other Federal agencies have also taken enforcement action against
public entities regarding the lack of website access for individuals
with disabilities. 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 that the
public entity had violated Federal statutes, including title II of the
ADA, by denying individuals with disabilities an equal opportunity to
participate in the public entity's services, programs, or activities
due to website inaccessibility.\83\ As another example, 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 website concerning housing
opportunities.\84\
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\82\ 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. 21, 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 (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>].
\83\ U.S. Dep't of Educ., In re Alaska Dep't of Educ. & Early
Dev., OCR Reference No. 10161093 (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 U.S. Dep't of Educ., In re Alaska Dep't of Educ. &
Early Dev., OCR Reference No.10161093 (Mar. 28, 2018) (revised
resol. agreement), <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 resol. agreement).
\84\ See Voluntary Compliance Agreement Between the U.S. Dep't
of Housing & Urban Dev. and the City of Los Angeles, Cal. (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, and public comments on the NPRM have
reinforced, that adopting technical standards for web content and
mobile app accessibility provides clarity to public entities regarding
how to make accessible the services, programs, and activities that they
offer via the web and mobile apps. Commenters have specifically
indicated that unambiguous, consistent, and comprehensive standards
will help resolve existing confusion around the technical requirements
for accessibility on public entities' web content and mobile apps.
Adopting specific technical standards for web content and mobile app
accessibility also helps to provide individuals with disabilities with
consistent and predictable access to the web content and mobile apps of
public entities.
IV. Regulatory Process Matters
The Department has examined the likely economic and other effects
of this final rule addressing the accessibility of web content and
mobile apps, as required under applicable Executive Orders,\85\ Federal
administrative statutes (e.g., the Regulatory Flexibility Act,\86\
Paperwork Reduction Act,\87\ and Unfunded Mandates Reform Act \88\),
and other regulatory guidance.\89\
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\85\ See E.O. 14094, 88 FR 21879 (Apr. 6, 2023); E.O. 13563, 76
FR 3821 (Jan. 18, 2011); E.O. 13272, 67 FR 53461 (Aug. 13, 2002);
E.O. 13132, 64 FR 43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735
(Sept. 30, 1993).
\86\ Regulatory Flexibility Act of 1980 (``RFA''), as amended by
the Small Bus. Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
601 et seq.
\87\ Paperwork Reduction Act (``PRA''), 44 U.S.C. 3501 et seq.
\88\ Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.
\89\ See Office of Mgmt. and Budget, Circular A-4 (Sept. 17,
2003) (superseded by Office of Mgmt. and Budget, Circular A-4 (of
Nov. 9, 2023)).
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As discussed previously, the purpose of this rule is to revise the
regulation implementing title II of the ADA in order to ensure that the
services, programs, and activities offered by State and local
government entities to the public via web content and mobile apps are
accessible to individuals with disabilities. The Department is adopting
specific technical standards related to the accessibility of the web
content and mobile apps of State and local government entities and is
specifying
[[Page 31330]]
dates by which such web content and mobile apps must meet those
standards. This rule is necessary to help public entities understand
how to ensure that individuals with disabilities will have equal access
to the services, programs, and activities that public entities provide
or make available through their web content and mobile apps.
The Department has carefully crafted this final rule to better
ensure the protections of title II of the ADA, while at the same time
doing so in an economically efficient manner. After reviewing the
Department's assessment of the likely costs of this regulation, the
Office of Management and Budget (``OMB'') has determined that it is a
significant regulatory action within the meaning of Executive Order
12866, as amended. As such, the Department has undertaken a FRIA
pursuant to Executive Order 12866. The Department has also undertaken a
FRFA as specified in section 604(a) of the Regulatory Flexibility Act.
The results of both of these analyses are summarized below. Lastly, the
Department does not believe that this regulation will have any
significant impact relevant to the Paperwork Reduction Act, the
Unfunded Mandates Reform Act, or the federalism principles outlined in
Executive Order 13132.
A. Final Regulatory Impact Analysis Summary
The Department has prepared a FRIA for this rulemaking. This
rulemaking also contains a FRFA. The Department contracted with Eastern
Research Group Inc. (``ERG'') to prepare this economic assessment. This
summary provides an overview of the Department's economic analysis and
key findings in the FRIA. The full FRIA will be made available at
<a href="https://www.justice.gov/crt/disability-rights-section">https://www.justice.gov/crt/disability-rights-section</a>.
Requiring State and local government entity web content and mobile
apps to conform to WCAG 2.1 Level AA will result in costs for State and
local government entities to remediate and maintain their web content
and mobile apps to meet this standard. The Department estimates that
109,893 State and local government entity websites and 8,805 State and
local government mobile apps will be affected by the rule. These
websites and mobile apps provide services on behalf of and are managed
by 91,489 State and local government entities that will incur these
costs. These costs include one-time costs for familiarization with the
requirements of the rule; testing, remediation, and operating and
maintenance (``O&M'') costs for websites; testing, remediation, and O&M
costs for mobile apps; and school course remediation costs. The
remediation costs include both time and software components.
Initial familiarization, testing, and remediation costs of the rule
are expected to occur over the first two or three years until
compliance is required and are presented in Table 3 (two years for
large governments and three years for small governments). Annualized
recurring costs after implementation are shown in Table 4. These
initial and recurring costs are then combined to show total costs over
the 10-year time horizon (Table 5 and Table 6) and annualized costs
over the 10-year time horizon (Table 7 and Table 8). Annualized costs
over this 10-year period are estimated at $3.3 billion assuming a 3
percent discount rate and $3.5 billion assuming a 7 percent discount
rate. This includes $16.9 billion in implementation costs accruing
during the first three years (the implementation period), undiscounted,
and $2.0 billion in annual O&M costs during the next seven years. All
values are presented in 2022 dollars as 2023 data were not yet
available.
Benefits will generally accrue to all individuals who access State
and local government entity websites and mobile apps, and additional
benefits will accrue to individuals with certain types of disabilities.
The WCAG 2.1 Level AA standards for web content and mobile app
accessibility primarily benefit individuals with vision, hearing,
cognitive, and manual dexterity disabilities because accessibility
standards are intended to address barriers that often impede access for
people with these disability types. Using the U.S. Census Bureau's
Survey of Income and Program Participation (``SIPP'') 2022 data, the
Department estimates that 5.5 percent of adults in the United States
have a vision disability, 7.6 percent have a hearing disability, 11.3
percent have a cognitive disability, and 5.8 percent have a manual
dexterity disability.\90\ Due to the incidence of multiple
disabilities, the total share of people with one or more of these
disabilities is 21.3 percent.
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\90\ See U.S. Census Bureau, 2022 SIPP Data, <a href="https://www.census.gov/programs-surveys/sipp/data/datasets/2022-data/2022.html">https://www.census.gov/programs-surveys/sipp/data/datasets/2022-data/2022.html</a> [<a href="https://perma.cc/7HW3-7GHR">https://perma.cc/7HW3-7GHR</a>] (last visited Mar. 13, 2024).
Analysis of this dataset is discussed further in the Department's
accompanying FRIA, at section 2.2, Number of Individuals with
Disabilities.
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The Department monetized benefits for both people with these
disabilities and people without disabilities.\91\ There are many
additional benefits that have not been monetized due to lack of data
availability. Benefits that cannot be monetized are discussed
qualitatively. These non-quantified benefits are central to this rule's
potential impact as they include concepts inherent to any civil rights
law--such as equality and dignity. Other impacts to individuals include
increased independence, increased flexibility, increased privacy,
reduced frustration, decreased reliance on companions, and increased
program participation. This rule will also benefit State and local
government entities through increased certainty about what constitutes
an accessible website, a potential reduction in litigation, and a
larger labor market pool (due to increased educational attainment and
access to job training).
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\91\ Throughout the Department's FRIA, the Department uses the
phrases ``individuals without a relevant disability'' or
``individuals without disabilities'' to refer to individuals without
vision, hearing, cognitive, or manual dexterity disabilities. These
individuals may have other types of disabilities, or they may be
individuals without any disabilities at all.
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Annual and annualized monetized benefits of this rule are presented
in Table 9, Table 10, and Table 11. Annual benefits, beginning once the
rule is fully implemented, total $5.3 billion. Because individuals
generally prefer benefits received sooner, future benefits need to be
discounted to reflect the lower value due to the wait to receive them.
OMB guidance states that annualized benefits and costs should be
presented using real discount rates of 3 percent and 7 percent.\92\
Benefits annualized over a 10-year period that includes both three
years of implementation and seven years post-implementation total $5.2
billion per year, assuming a 3 percent discount rate, and $5.0 billion
per year, assuming a 7 percent discount rate.
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\92\ Office of Mgmt. and Budget, Circular A-4 (Sep 17, 2003),
<a href="https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf">https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf</a> [<a href="https://perma.cc/VSR2-UFT8">https://perma.cc/VSR2-UFT8</a>]. Office of
Mgmt. and Budget, Circular A-4 (Sep 17, 2003), <a href="https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf">https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf</a> [<a href="https://perma.cc/VSR2-UFT8">https://perma.cc/VSR2-UFT8</a><a href="https://perma.cc/VSR2-UFT8">https://perma.cc/VSR2-UFT8</a>].
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Comparing annualized costs and benefits, monetized benefits to
society outweigh the costs. Net annualized benefits over the first 10
years post publication of this rule total $1.9 billion per year using a
3 percent discount rate and $1.5 billion per year using a 7 percent
discount rate (Table 12). 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 the benefits tend to
have a delay before beginning to accrue.
To consider the relative magnitude of the estimated costs of this
regulation, the Department compares the costs to revenues for public
entities. Because
[[Page 31331]]
calculating this ratio for every public entity would be impractical,
the Department used the estimated average annualized cost compared to
the average annual revenue by each government entity type. The costs
for each government entity type and size are generally estimated to be
below 1 percent of revenues (the one exception is small independent
community colleges, for which the cost-to-revenue ratio is 1.05 percent
and 1.10 percent using a 3 percent discount rate and a 7 percent
discount rate, respectively),\93\ so the Department does not believe
the rule will be unduly burdensome or costly for public entities.\94\
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\93\ However, the Department notes that revenue for small
independent community colleges was estimated using the 2012 Census
of Governments, so revenue for small independent community colleges
would likely be underestimated if small independent community
colleges had a greater share of total local government revenue in
2022 than in 2012. If this were true, the Department expects that
the cost-to-revenue ratio for small independent community colleges
would be lower.
\94\ As a point of reference, the United States Small Business
Administration advises agencies that a potential indicator that the
impact of a 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. See U.S. Small Bus. Admin., A
Guide for Government Agencies: How To Comply with the Regulatory
Flexibility Act, at 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/PWL9-ZTW6">https://perma.cc/PWL9-ZTW6</a>]; see also U.S. Env't Prot. Agency, EPA's Action
Dev. Process: Final Guidance for EPA Rulewriters: Regulatory
Flexibility Act, at 9, 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 ``[p]resumed'' to have ``no significant economic
impact on a substantial number of small entities'').
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The Department received some comments on the proposed rule's
estimated costs and benefits. These comments are discussed throughout
the FRIA. One methodological change was made from the analysis
performed for the NPRM on the timing of compliance for making password-
protected course content accessible by public educational entities,
which is discussed further in the FRIA. However, the numbers in the
FRIA also differ from the proposed rule because data have been updated
to reflect the most recently available data and because monetary values
are now reported in 2022 dollars (whereas the analysis performed for
the NPRM presented values in 2021 dollars).
Table 3--Initial Familiarization, Testing, and Remediation Costs
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.02 $1.00 $6.42 $5.35 $12.7 $4.03 $0.00 $0.62 $30.1
Websites........................ 253.0 819.9 2,606.6 1,480.7 408.5 2,014.0 7.1 1,417.4 9,007.3
Mobile apps..................... 14.7 56.8 100.0 1.4 0.0 406.3 1.3 68.9 649.2
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 5,508.5 5,508.5
Primary and secondary course N/A 50.8 19.8 42.8 N/A 1,134.1 N/A N/A 1,247.5
remediation....................
Third-party website remediation. 7.2 39.4 147.2 85.5 19.6 113.8 0.0 93.6 506.4
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Total....................... 275.0 967.8 2,880.1 1,615.8 440.8 3,672.2 8.4 7,089.1 16,949.1
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Table 4--Average Annual Cost After Implementation
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Websites........................ $22.0 $71.9 $237.3 $136.9 $43.8 $181.7 $0.6 $123.4 $817.8
Mobile apps..................... 0.01 0.04 0.03 0.00 0.00 0.23 0.00 0.05 0.35
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 1,001.6 1,001.6
Primary and secondary course N/A 5.1 2.0 4.3 N/A 113.4 N/A N/A 124.7
remediation....................
Third-party website remediation. 0.6 3.5 13.4 7.9 2.1 10.2 0.0 8.2 45.9
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Total....................... 22.6 80.6 252.7 149.1 45.9 305.6 0.6 1,133.2 1,990.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 5--Present Value of 10-Year Total Cost, 3 Percent Discount Rate
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.02 $0.97 $6.23 $5.20 $12.33 $3.91 $0.00 $0.60 $29.26
Websites........................ 366.5 1,190.3 3,812.6 2,174.4 634.1 2,939.6 10.3 2,053.9 13,181.7
Mobile apps..................... 14.1 54.2 95.8 1.3 0.0 385.4 1.2 66.2 618.1
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 11,890.1 11,890.1
Primary and secondary course N/A 79.6 31.1 67.1 N/A 1,778.9 N/A N/A 1,956.8
remediation....................
Third-party website remediation. 10.5 57.4 215.3 125.6 30.4 165.8 0.0 135.6 740.7
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Total....................... 391.1 1,382.4 4,161.0 2,373.7 676.8 5,273.6 11.5 14,146.5 28,416.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 31332]]
Table 6--Present Value of 10-Year Total Cost, 7 Percent Discount Rate
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.02 $0.93 $6.00 $5.00 $11.87 $3.76 $0.00 $0.58 $28.16
Websites........................ 323.3 1,048.5 3,327.8 1,892.9 548.3 2,570.7 9.1 1,811.7 11,532.2
Mobile apps..................... 13.3 50.7 90.5 1.3 0.0 358.5 1.2 62.5 577.9
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 10,188.1 10,188.1
Primary and secondary course N/A 69.7 27.2 58.7 N/A 1,557.3 N/A N/A 1,713.0
remediation....................
Third-party website remediation. 9.3 50.5 187.9 109.3 26.3 145.3 0.0 119.6 648.2
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Total....................... 345.9 1,220.4 3,639.4 2,067.2 586.5 4,635.5 10.2 12,182.5 24,687.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 7--10-Year Average Annualized Cost, 3 Percent Discount Rate
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.00 $0.11 $0.73 $0.61 $1.44 $0.46 $0.00 $0.07 $3.43
Websites........................ 43.0 139.5 446.9 254.9 74.3 344.6 1.2 240.8 1,545.3
Mobile apps..................... 1.7 6.3 11.2 0.2 0.0 45.2 0.1 7.8 72.5
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 1,393.9 1,393.9
Primary and secondary course N/A 9.3 3.6 7.9 N/A 208.5 N/A N/A 229.4
remediation....................
Third-party website remediation. 1.2 6.7 25.2 14.7 3.6 19.4 0.0 15.9 86.8
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Total....................... 45.8 162.1 487.8 278.3 79.3 618.2 1.4 1,658.4 3,331.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 8--10-Year Average Annualized Cost, 7 Percent Discount Rate
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.00 $0.13 $0.85 $0.71 $1.69 $0.54 $0.00 $0.08 $4.01
Websites........................ 46.0 149.3 473.8 269.5 78.1 366.0 1.3 257.9 1,641.9
Mobile apps..................... 1.9 7.2 12.9 0.2 0.0 51.0 0.2 8.9 82.3
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 1,450.6 1,450.6
Primary and secondary course N/A 9.9 3.9 8.4 N/A 221.7 N/A N/A 243.9
remediation....................
Third-party website remediation. 1.3 7.2 26.8 15.6 3.7 20.7 0.0 17.0 92.3
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Total....................... 49.2 173.8 518.2 294.3 83.5 660.0 1.5 1,734.5 3,515.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 9--Annual Benefit After Full Implementation
[Millions]
----------------------------------------------------------------------------------------------------------------
Without
Benefit type Visual Other relevant relevant State and Total
disability disability \a\ disabilities local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users..... $813.5 $1,022.1 $2,713.9 N/A $4,549.5
Time savings--mobile apps....... 76.3 95.9 254.5 N/A 426.7
Educational attainment.......... 10.2 295.8 N/A N/A 306.0
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Total benefits.............. 900.0 1,413.7 2,968.5 0.0 5,282.2
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
relevant disabilities.''
Table 10--10-Year Average Annualized Benefits, 3 Percent Discount Rate
[Millions]
----------------------------------------------------------------------------------------------------------------
Without
Benefit type Visual Other relevant relevant State and Total
disability disability \a\ disabilities local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users..... $686.3 $862.3 $2,289.6 N/A $3,838.3
Time savings--mobile apps....... 64.4 80.9 214.7 N/A 360.0
[[Page 31333]]
Educational attainment.......... 34.4 996.9 N/A N/A 1,031.3
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Total benefits.............. 785.1 1,940.0 2,504.4 0.0 5,229.5
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
relevant disabilities.''
Table 11--10-Year Average Annualized Benefits, 7 Percent Discount Rate
[Millions]
----------------------------------------------------------------------------------------------------------------
Without
Benefit type Visual Other relevant relevant State and Total
disability disability \a\ disabilities local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users..... $668.1 $839.4 $2,229.0 N/A $3,736.6
Time savings--mobile apps....... 62.7 78.7 209.0 N/A 350.4
Educational attainment.......... 31.4 910.8 N/A N/A 942.2
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Total benefits.............. 762.2 1,828.9 2,438.0 0.0 5,029.2
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
relevant disabilities.''
Table 12--10-Year Average Annualized Comparison of Costs and Benefits
------------------------------------------------------------------------
3% Discount 7% Discount
Figure rate rate
------------------------------------------------------------------------
Average annualized costs (millions)..... $3,331.3 $3,515.0
Average annualized benefits (millions).. $5,229.5 $5,029.2
Net benefits (millions)................. $1,898.2 $1,514.2
Cost-to-benefit ratio................... 0.6 0.7
------------------------------------------------------------------------
B. Final Regulatory Flexibility Analysis Summary
The Department has prepared a FRFA to comply with its obligations
under the Regulatory Flexibility Act and related laws and Executive
Orders requiring executive branch agencies to consider the effects of
regulations on small entities.\95\ The Department's FRFA includes an
explanation of steps that the Department has taken to minimize the
impact of this rule on small entities, responses to a comment by the
Chief Counsel for Advocacy of the Small Business Administration, a
description of impacts of this rule on small entities, alternatives the
Department considered related to small entities, and other information
required by the RFA. The Department includes a short summary of some
monetized cost and benefit findings made in the FRFA below, but the
full FRFA will be published along with the Department's FRIA, and it
will be made available to the public at <a href="https://www.justice.gov/crt/disability-rights-section">https://www.justice.gov/crt/disability-rights-section</a>.
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\95\ See U.S. Small Bus. Admin., A Guide for Government
Agencies: How To Comply with the Regulatory Flexibility Act, at 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/PWL9-ZTW6">https://perma.cc/PWL9-ZTW6</a>].
---------------------------------------------------------------------------
The Department calculated both costs and benefits to small
government entities as part of its FRFA. The Department also compared
costs to revenues for small government entities to evaluate the
economic impact to these small government entities. The costs for each
small government entity type and size are generally estimated to be
below 1 percent of revenues (the one exception is small independent
community colleges, for which the cost-to-revenue ratio is 1.05 percent
and 1.10 percent using a 3 percent and 7 percent discount rate,
respectively),\96\ so the Department does not believe the rule will be
unduly burdensome or costly for public entities.\97\ These costs
include one-time costs for familiarization with the requirements of the
rule, the purchase of software to assist with remediation of web
content or mobile apps, the time spent testing and remediating web
content and mobile apps to comply with WCAG 2.1 Level AA, and
elementary, secondary, and postsecondary education course content
remediation. Annual costs include recurring costs for software licenses
and remediation of future content.
---------------------------------------------------------------------------
\96\ However, the Department notes that revenue for small
independent community colleges was estimated using the 2012 Census
of Governments, so revenue for small independent community colleges
would likely be underestimated if small independent community
colleges had a greater share of total local government revenue in
2022 than in 2012. If this were true, the Department expects that
the cost-to-revenue ratio for small independent community colleges
would be lower.
\97\ As a point of reference, the United States Small Business
Administration advises agencies that a potential indicator that the
impact of a 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. See U.S. Small Bus. Admin., A
Guide for Government Agencies: How To Comply with the Regulatory
Flexibility Act, at 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/PWL9-ZTW6">https://perma.cc/PWL9-ZTW6</a>]; see also U.S. Env't Prot. Agency, EPA's Action
Dev. Process: Final Guidance for EPA Rulewriters: Regulatory
Flexibility Act, at 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 ``[p]resumed'' to have ``no significant economic
impact on a substantial number of small entities'').
---------------------------------------------------------------------------
Costs to small entities are displayed in Table 13 and Table 14;
Table 15 contains the costs and revenues per government type and cost-
to-revenue
[[Page 31334]]
ratios using a 3 percent and 7 percent discount rate. Because the
Department's cost estimates take into account different small entity
types and sizes, the Department believes the estimates in this analysis
are generally representative of what smaller entities of each type
should expect to pay. This is because the Department's methodology
generally estimated costs based on the sampled baseline accessibility
to full accessibility in accordance with this rule, which provides a
precise estimate of the costs within each government type and size.
While the Department recognizes that there may be variation in costs
for differently sized small entity types, the Department's estimates
are generally representative given the precision in our methodology
within each stratified group. The Department received several comments
on its estimates for small government entity costs. A summary of those
comments and the Department's responses are included in the
accompanying FRFA.
Table 13--Present Value of Total 10-Year Costs per Entity, 3% Discount Rate
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Primary and
Number of Regulatory Website Mobile app Postsecondary secondary Third-Party
Type of government entity entities familiarization testing and testing and course course website Total
remediation remediation remediation remediation remediation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Special district............................................... 38,542 $320 $16,452 $0 N/A N/A $790 $17,561
County (small)................................................. 2,105 320 52,893 12,022 N/A $19,949 5,743 90,927
Municipality (small)........................................... 18,729 320 161,722 0 N/A 876 8,957 171,875
Township (small)............................................... 16,097 320 132,260 0 N/A 2,198 7,695 142,472
School district (small)........................................ 11,443 320 168,261 27,634 N/A 81,971 7,648 285,834
U.S. Territory (small)......................................... 2 320 1,026,731 68,209 N/A N/A 6,160 1,101,420
Community College.............................................. 1,146 320 1,020,862 15,916 $3,617,001 N/A 67,409 4,721,508
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Table 14--Present Value of Total 10-Year Costs per Entity, 7% Discount Rate
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Primary and
Number of Regulatory Website Mobile app Postsecondary secondary Third-Party
Type of government entity entities familiarization testing and testing and course course website Total
remediation remediation remediation remediation remediation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Special district............................................... 38,542 $308 $14,226 $0 N/A N/A $683 $15,217
County (small)................................................. 2,105 308 45,992 11,147 N/A $17,463 4,993 79,904
Municipality (small)........................................... 18,729 308 140,772 0 N/A 767 7,797 149,643
Township (small)............................................... 16,097 308 115,101 0 N/A 1,924 6,697 124,029
School district (small)........................................ 11,443 308 146,475 25,624 N/A 71,758 6,658 250,822
U.S. Territory (small)......................................... 2 308 894,141 63,264 N/A N/A 5,365 963,078
Community College.............................................. 1,146 308 900,471 15,031 $3,099,245 N/A 59,460 4,074,515
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Table 15--Number of Small Entities and Ratio of Costs to Government Revenues
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average annual Average annual Total 10-year Total 10-year
Number of cost per cost per average annual average annual Annual revenue Ratio of costs Ratio of costs
Government type small entities entity (3%) entity (7%) costs (3%) costs (7%) (millions) to revenue to revenue
\a\ \c\ \a\ \c\ (millions) (millions) (3%) (7%)
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County.......................................................... 2,105 $10,659.4 $11,376.5 $22.4 $23.9 $69,686.3 0.03 0.03
Municipality.................................................... 18,729 20,149.0 21,305.8 377.4 399.0 197,708.7 0.19 0.20
Township........................................................ 16,097 16,666.1 17,616.8 268.3 283.6 59,802.5 0.45 0.47
Special district................................................ 38,542 2,058.7 2,166.5 79.3 83.5 298,338.3 0.03 0.03
School district \a\............................................. 11,443 36,023.7 38,347.6 412.2 438.8 354,350.5 0.12 0.12
U.S. territory.................................................. 2 129,120.0 137,120.7 0.3 0.3 992.6 0.03 0.03
CCs \b\......................................................... 960 553,504.8 580,119.2 531.4 556.9 N/A N/A N/A
CCs--independent................................................ 231 553,504.8 580,119.2 127.9 134.0 12,149.5 1.05 1.10
Total (includes all CCs)........................................ 87,878 19,245.7 20,324.4 1,691.3 1,786.1 N/A N/A N/A
Total (only independent CCs).................................... 87,149 14,776.6 15,641.7 1,287.8 1,363.2 993,028.5 0.13 0.14
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Excludes community colleges, which are costed separately.
\b\ Includes all dependent community college districts and small independent community college districts. Revenue data are not available for the dependent community college districts.
\c\ This cost consists of regulatory familiarization costs, government website testing and remediation costs, mobile app testing and remediation costs, postsecondary education course
remediation costs, elementary and secondary education course remediation costs, and costs for third-party websites averaged over ten years.
Though not included in the Department's primary benefits analysis
due to methodological limitations, the Department estimated time
savings for State and local government entities from reduced contacts
(i.e., fewer interactions assisting residents). Improved web
accessibility will lead some individuals who accessed government
services via the phone, mail, or in person to begin using the public
entity's website to complete the task. This will generate time savings
for government employees. In the Department's FRFA, the Department
estimates that this will result in time savings to small governments of
$192.6 million per year once full implementation is complete. Assuming
lower benefits during the implementation period results in average
annualized benefits of $162.5 million and $158.1 million to small
governments using a 3 percent and 7 percent discount rate,
respectively. The Department notes that these benefits rely on
assumptions for which the Department could not find reliable data, and
stresses the uncertainty of these estimates given the strong
assumptions made.
The Department explains in greater detail its efforts to minimize
the economic impact on small entities, as well as estimates of
regulatory alternatives that the Department considered to reduce those
impacts in
[[Page 31335]]
the full FRFA accompanying this rule. The FRFA also includes other
information such as the Department's responses to the comment from the
Chief Counsel for Advocacy of the Small Business Administration and
responses to other comments related to the rule's impact on small
entities. Finally, the Department will issue a small entity compliance
guide,\98\ which should help public entities better understand their
obligations under this rule.
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\98\ See Public Law 104-121, sec. 212, 110 Stat. 847, 858 (1996)
(5 U.S.C. 601 note).
---------------------------------------------------------------------------
C. Executive Order 13132: Federalism
Executive Order 13132 requires executive branch agencies to
consider whether a proposed rule will have federalism implications.\99\
That is, the rulemaking agency must determine whether the rule is
likely to have substantial direct effects on State and local
governments, on the relationship between the Federal Government and the
States and localities, or on the distribution of power and
responsibilities among the different levels of government. If an agency
believes that a proposed rule is likely to have federalism
implications, it must consult with State and local government entity
officials about how to minimize or eliminate the effects.
---------------------------------------------------------------------------
\99\ 64 FR 43255 (Aug. 4, 1999).
---------------------------------------------------------------------------
Title II of the ADA covers State and local government entity
services, programs, and activities, and, therefore, has federalism
implications. State and local government entities have been subject to
the ADA since 1991, and the many State and local government entities
that receive Federal financial assistance have also been required to
comply with the requirements of section 504 of the Rehabilitation Act.
Hence, the ADA and the title II regulation are not novel for State and
local government entities.
In crafting this regulation, the Department has been mindful of its
obligation to meet the objectives of the ADA while also minimizing
conflicts between State law and Federal interests. Since the Department
began efforts to issue a web accessibility regulation more than 13
years ago, the Department has received substantial feedback from State
and local government entities about the potential impacts of rulemaking
on this topic. In the NPRM, the Department solicited comments from
State and local officials and their representative national
organizations on the rule's effects on State and local government
entities, and on whether the rule may have direct effects on the
relationship between the Federal Government and the States, or the
distribution of power and responsibilities among the various levels of
government. The Department also attended three listening sessions on
the NPRM hosted by the SBA's Office of Advocacy, the Association on
Higher Education and Disability, and the Great Lakes ADA Center at the
University of Illinois at Chicago, in conjunction with the ADA National
Network. These sessions were cumulatively attended by more than 500
members of the public, including representatives from public entities,
and the Department received feedback during these sessions about the
potential impacts of the rule on public entities.
In response to the NPRM, the Department received written comments
from members of the public about the relationship between this rule and
State and local laws addressing public entities' web content and mobile
apps. Some commenters asked questions and made comments about how this
rule would interact with State laws providing greater or less
protection for the rights of individuals with disabilities. The
Department wishes to clarify that, consistent with 42 U.S.C. 12201,
this final rule will preempt State laws affecting entities subject to
the ADA only to the extent that those laws provide less protection for
the rights of individuals with disabilities. This rule does not
invalidate or limit the remedies, rights, and procedures of any State
laws that provide greater or equal protection for the rights of
individuals with disabilities. Moreover, the Department's provision on
equivalent facilitation at Sec. 35.203 provides that nothing prevents
a public entity from using designs, methods, or techniques as
alternatives to those prescribed in this rule, provided that such
alternatives result in substantially equivalent or greater
accessibility and usability. Accordingly, for example, if a State law
requires public entities in that State to conform to WCAG 2.2, nothing
in this rule would prevent a public entity from complying with that
standard.
The Department also received comments asking how this rule will
interact with State or local laws requiring public entities to post
certain content online. The Department notes that this rule does not
change public entities' obligations under State and local laws
governing the types of content that public entities must provide or
make available online. Instead, this rule simply requires that when
public entities provide or make available web content or mobile apps,
they must ensure that that content and those apps comply with the
requirements set forth in this rule. This is consistent with the
remainder of the title II regulatory framework, under which public
entities have been required to ensure that their services, programs,
and activities comply with specific accessibility requirements since
1991, even for services, programs, or activities that are otherwise
governed by State and local laws.
D. National Technology Transfer and Advancement Act of 1995
The National Technology Transfer and Advancement Act of 1995
(``NTTAA'') directs that, as a general matter, all Federal agencies and
departments shall use technical standards that are developed or adopted
by voluntary consensus standards bodies, which are private--generally
nonprofit--organizations that develop technical standards or
specifications using well-defined procedures that require openness,
balanced participation among affected interests and groups, fairness
and due process, and an opportunity for appeal, as a means to carry out
policy objectives or activities.\100\ In addition, the NTTAA directs
agencies to consult with voluntary, private sector, consensus standards
bodies and requires that agencies participate with such bodies in the
development of technical standards when such participation is in the
public interest and is compatible with agency and departmental
missions, authorities, priorities, and budget resources.\101\
---------------------------------------------------------------------------
\100\ Public Law 104-113, sec. 12(d)(1) (15 U.S.C. 272 note);
see also Office of Mgmt. and Budget, Circular A-119 (Jan 27, 2016),
<a href="https://www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-119_as_of_1_22.pdf">https://www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-119_as_of_1_22.pdf</a> [<a href="https://perma.cc/A5LP-X3DB">https://perma.cc/A5LP-X3DB</a>].
\101\ Public Law 104-113, sec. 12(d)(2).
---------------------------------------------------------------------------
The Department is adopting WCAG 2.1 Level AA as the accessibility
standard to apply to web content and mobile apps of title II entities.
WCAG 2.1 Level AA was developed by W3C, which has been the principal
international organization involved in developing protocols and
guidelines for the web. W3C develops a variety of technical standards
and guidelines, including ones relating to privacy,
internationalization of technology, and accessibility. Thus, the
Department is complying with the NTTAA in selecting WCAG 2.1 Level AA
as the applicable accessibility standard.
E. Plain Language Instructions
The Department makes every effort to promote clarity and
transparency in its rulemaking. In any regulation, there is a tension
between drafting language that is simple and straightforward and
[[Page 31336]]
drafting language that gives full effect to issues of legal
interpretation. The Department operates a toll-free ADA Information
Line at (800) 514-0301 (voice); 1-833-610-1264 (TTY) that the public is
welcome to call for assistance understanding anything in this rule. In
addition, the <a href="http://ADA.gov">ADA.gov</a> website strives to provide information in plain
language about the law, including this rule. The Department will also
issue a small entity compliance guide,\102\ which should help public
entities better understand their obligations under this rule.
---------------------------------------------------------------------------
\102\ See Public Law 104-121, sec. 212, 110 Stat. 847, 858
(1996) (5 U.S.C. 601 note).
---------------------------------------------------------------------------
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (``PRA''), no person is
required to respond to a ``collection of information'' unless the
agency has obtained a control number from OMB.\103\ This final rule
does not contain any collections of information as defined by the PRA.
---------------------------------------------------------------------------
\103\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------
G. Unfunded Mandates Reform Act
Section 4(2) of the Unfunded Mandates Reform Act of 1995 \104\
excludes from coverage under that Act any proposed or final Federal
regulation that ``establishes or enforces any statutory rights that
prohibit discrimination on the basis of race, color, religion, sex,
national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.
---------------------------------------------------------------------------
\104\ 2 U.S.C. 1503(2).
---------------------------------------------------------------------------
H. Incorporation by Reference
As discussed above, through this rule, the Department is adopting
the internationally recognized accessibility standard for web access,
WCAG 2.1 Level AA, published in June 2018, as the technical standard
for web and mobile app accessibility under title II of the ADA. WCAG
2.1 Level AA, published by W3C WAI, specifies success criteria and
requirements that make web content more accessible to all users,
including individuals with disabilities. The Department incorporates
WCAG 2.1 Level AA by reference into this rule, instead of restating all
of its requirements verbatim. To the extent there are distinctions
between WCAG 2.1 Level AA and the standards articulated in this rule,
the standards articulated in this rule prevail.
The Department notes that when W3C publishes new versions of WCAG,
those versions will not be automatically incorporated into this rule.
Federal agencies do not incorporate by reference into published
regulations future versions of standards developed by bodies like W3C.
Federal agencies are required to identify the particular version of a
standard incorporated by reference in a regulation.\105\ When an
updated version of a standard is published, an agency must revise its
regulation if it seeks to incorporate any of the new material.
---------------------------------------------------------------------------
\105\ See, e.g., 1 CFR 51.1(f) (``Incorporation by reference of
a publication is limited to the edition of the publication that is
approved [by the Office of the Federal Register]. Future amendments
or revisions of the publication are not included.'').
---------------------------------------------------------------------------
WCAG 2.1 Level AA is reasonably available to interested parties.
Free copies of WCAG 2.1 Level AA are available online on W3C's website
at <a href="https://www.w3.org/TR/2018/REC-WCAG21-20180605/">https://www.w3.org/TR/2018/REC-WCAG21-20180605/</a> and <a href="https://perma.cc/UB8A-GG2F">https://perma.cc/UB8A-GG2F</a>. In addition, a copy of WCAG 2.1 Level AA is also
available for inspection by appointment at the Disability Rights
Section, Civil Rights Division, U.S. Department of Justice, 150 M St.
NE, 9th Floor, Washington, DC 20002.
I. Congressional Review Act
In accordance with the Congressional Review Act, the Department has
determined that this rule is a major rule as defined by 5 U.S.C.
804(2). The Department will submit this final rule and other
appropriate reports to Congress and the Government Accountability
Office for review.
List of Subjects for 28 CFR Part 35
Administrative practice and procedure, Civil rights,
Communications, Incorporation by reference, Individuals with
disabilities, State and local requirements.
By the authority vested in me as Attorney General by law, including
5 U.S.C. 301; 28 U.S.C. 509, 510; sections 201 and 204 of the of the
Americans with Disabilities Act, Public Law 101-336, as amended, and
section 506 of the ADA Amendments Act of 2008, Public Law 110-325, and
for the reasons set forth in appendix D to 28 CFR part 35, chapter I of
title 28 of the Code of Federal Regulations is amended as follows--
PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES
0
1. The authority citation for part 35 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134,
12131, and 12205a.
Subpart A--General
0
2. Amend Sec. 35.104 by adding definitions for ``Archived web
content,'' ``Conventional electronic documents,'' ``Mobile applications
(apps),'' ``Special district government,'' ``Total population,'' ``User
agent,'' ``WCAG 2.1,'' and ``Web content'' in alphabetical order to
read as follows:
Sec. 35.104 Definitions.
* * * * *
Archived web content means web content that--
(1) Was created before the date the public entity is required to
comply with subpart H of this part, reproduces paper documents created
before the date the public entity is required to comply with subpart H,
or reproduces the contents of other physical media created before the
date the public entity is required to comply with subpart H;
(2) Is retained exclusively for reference, research, or
recordkeeping;
(3) Is not altered or updated after the date of archiving; and
(4) Is organized and stored in a dedicated area or areas clearly
identified as being archived.
* * * * *
Conventional electronic documents means web content or content in
mobile apps that is in the following electronic file formats: portable
document formats (``PDF''), word processor file formats, presentation
file formats, and spreadsheet file formats.
* * * * *
Mobile applications (``apps'') means software applications that are
downloaded and designed to run on mobile devices, such as smartphones
and tablets.
* * * * *
Special district government means a public entity--other than a
county, municipality, township, or independent school district--
authorized by State law to provide one function or a limited number of
designated functions with sufficient administrative and fiscal autonomy
to qualify as a separate government and whose population is not
calculated by the United States Census Bureau in the most recent
decennial Census or Small Area Income and Poverty Estimates.
* * * * *
Total population means--
(1) If a public entity has a population calculated by the United
States Census Bureau in the most recent decennial Census, the
population estimate for that public entity as calculated by the United
States Census Bureau in the most recent decennial Census; or
[[Page 31337]]
(2) If a public entity is an independent school district, or an
instrumentality of an independent school district, the population
estimate for the independent school district as calculated by the
United States Census Bureau in the most recent Small Area Income and
Poverty Estimates; or
(3) If a public entity, other than a special district government or
an independent school district, does not have a population estimate
calculated by the United States Census Bureau in the most recent
decennial Census, but is an instrumentality or a commuter authority of
one or more State or local governments that do have such a population
estimate, the combined decennial Census population estimates for any
State or local governments of which the public entity is an
instrumentality or commuter authority; or
(4) For the National Railroad Passenger Corporation, the population
estimate for the United States as calculated by the United States
Census Bureau in the most recent decennial Census.
User agent means any software that retrieves and presents web
content for users.
* * * * *
WCAG 2.1 means the Web Content Accessibility Guidelines (``WCAG'')
2.1, W3C Recommendation 05 June 2018, <a href="https://www.w3.org/TR/2018/REC-WCAG21-20180605/">https://www.w3.org/TR/2018/REC-WCAG21-20180605/</a> and <a href="https://perma.cc/UB8A-GG2F">https://perma.cc/UB8A-GG2F</a>. WCAG 2.1 is
incorporated by reference elsewhere in this part (see Sec. Sec. 35.200
and 35.202).
Web content means the 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. Examples of web content include text, images, sounds,
videos, controls, animations, and conventional electronic documents.
0
3. Add subpart H to read as follows:
Subpart H--Web and Mobile Accessibility
Sec.
35.200 Requirements for web and mobile accessibility.
35.201 Exceptions.
35.202 Conforming alternate versions.
35.203 Equivalent facilitation.
35.204 Duties.
35.205 Effect of noncompliance that has a minimal impact on access.
35.206-35.209 [Reserved]
Sec. 35.200 Requirements for web and mobile accessibility.
(a) General. A public entity shall ensure that the following are
readily accessible to and usable by individuals with disabilities:
(1) Web content that a public entity provides or makes available,
directly or through contractual, licensing, or other arrangements; and
(2) Mobile apps that a public entity provides or makes available,
directly or through contractual, licensing, or other arrangements.
(b) Requirements. (1) Beginning April 24, 2026, 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 that
the public entity provides or makes available, directly or through
contractual, licensing, or other arrangements, comply with Level A and
Level AA success criteria and conformance requirements specified in
WCAG 2.1, unless the public entity can demonstrate that compliance with
this section would result in a fundamental alteration in the nature of
a service, program, or activity or in undue financial and
administrative burdens.
(2) Beginning April 26, 2027, a public entity with a total
population of less than 50,000 or any public entity that is a special
district government shall ensure that the web content and mobile apps
that the public entity provides or makes available, directly or through
contractual, licensing, or other arrangements, comply with Level A and
Level AA success criteria and conformance requirements specified in
WCAG 2.1, unless the public entity can demonstrate that compliance with
this section would result in a fundamental alteration in the nature of
a service, program, or activity or in undue financial and
administrative burdens.
(3) WCAG 2.1 is incorporated by reference into this section with
the approval of the Director of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. All material approved for incorporation by
reference is available for inspection at the U.S. Department of Justice
and at the National Archives and Records Administration (``NARA'').
Contact the U.S. Department of Justice at: Disability Rights Section,
Civil Rights Division, U.S. Department of Justice, 150 M St. NE, 9th
Floor, Washington, DC 20002; ADA Information Line: (800) 514-0301
(voice) or 1-833-610-1264 (TTY); website: <a href="http://www.ada.gov">www.ada.gov</a> [<a href="https://perma.cc/U2V5-78KW">https://perma.cc/U2V5-78KW</a>]. For information on the availability of this
material at NARA, visit <a href="http://www.archives.gov/federal-register/cfr/ibr-locations.html">www.archives.gov/federal-register/cfr/ibr-locations.html</a> [<a href="https://perma.cc/9SJ7-D7XZ">https://perma.cc/9SJ7-D7XZ</a>] or email
<a href="/cdn-cgi/l/email-protection#395f4b1750574a495c5a4d5056577957584b58175e564f"><span class="__cf_email__" data-cfemail="d9bfabf7b0b7aaa9bcbaadb0b6b799b7b8abb8f7beb6af">[email protected]</span></a>. The material may be obtained from the World
Wide Web Consortium (``W3C'') Web Accessibility Initiative (``WAI''),
401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-
2711; email: <a href="/cdn-cgi/l/email-protection#690a06071d080a1d291e5a47061b0e"><span class="__cf_email__" data-cfemail="81e2eeeff5e0e2f5c1f6b2afeef3e6">[email protected]</span></a>; website: <a href="https://www.w3.org/TR/2018/REC-WCAG21-20180605/">https://www.w3.org/TR/2018/REC-WCAG21-20180605/</a> and <a href="https://perma.cc/UB8A-GG2F">https://perma.cc/UB8A-GG2F</a>.
Sec. 35.201 Exceptions.
The requirements of Sec. 35.200 do not apply to the following:
(a) Archived web content. Archived web content as defined in Sec.
35.104.
(b) Preexisting conventional electronic documents. Conventional
electronic documents that are available as part of a public entity's
web content or mobile apps before the date the public entity is
required to comply with this subpart, unless such documents are
currently used to apply for, gain access to, or participate in the
public entity's services, programs, or activities.
(c) Content posted by a third party. Content posted by a third
party, unless the third party is posting due to contractual, licensing,
or other arrangements with the public entity.
(d) Individualized, password-protected or otherwise secured
conventional electronic documents. Conventional electronic documents
that are:
(1) About a specific individual, their property, or their account;
and
(2) Password-protected or otherwise secured.
(e) Preexisting social media posts. A public entity's social media
posts that were posted before the date the public entity is required to
comply with this subpart.
Sec. 35.202 Conforming alternate versions.
(a) A public entity may use conforming alternate versions of web
content, as defined by WCAG 2.1, to comply with Sec. 35.200 only where
it is not possible to make web content directly accessible due to
technical or legal limitations.
(b) WCAG 2.1 is incorporated by reference into this section with
the approval of the Director of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. All material approved for incorporation by
reference is available for inspection at the U.S. Department of Justice
and at NARA. Contact the U.S. Department of Justice at: Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, 150
M St. NE, 9th Floor, Washington, DC 20002; ADA Information Line: (800)
514-0301 (voice) or 1-833-610-1264 (TTY); website: <a href="http://www.ada.gov">www.ada.gov</a> [https:/
/
[[Page 31338]]
perma.cc/U2V5-78KW]. For information on the availability of this
material at NARA, visit <a href="http://www.archives.gov/federal-register/cfr/ibr-locations.html">www.archives.gov/federal-register/cfr/ibr-locations.html</a> [<a href="https://perma.cc/9SJ7-D7XZ">https://perma.cc/9SJ7-D7XZ</a>] or email
<a href="/cdn-cgi/l/email-protection#472135692e2934372224332e2829072926352669202831"><span class="__cf_email__" data-cfemail="3a5c48145354494a5f594e5355547a545b485b145d554c">[email protected]</span></a>. The material may be obtained from W3C WAI, 401
Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-2711;
email: <a href="/cdn-cgi/l/email-protection#f3909c9d87929087b384c0dd9c8194"><span class="__cf_email__" data-cfemail="8ae9e5e4feebe9fecafdb9a4e5f8ed">[email protected]</span></a>; website: <a href="https://www.w3.org/TR/2018/REC-WCAG21-20180605/">https://www.w3.org/TR/2018/REC-WCAG21-20180605/</a> and <a href="https://perma.cc/UB8A-GG2F">https://perma.cc/UB8A-GG2F</a>.
Sec. 35.203 Equivalent facilitation.
Nothing in this subpart prevents the use of designs, methods, or
techniques as alternatives to those prescribed, provided that the
alternative designs, methods, or techniques result in substantially
equivalent or greater accessibility and usability of the web content or
mobile app.
Sec. 35.204 Duties.
Where a public entity can demonstrate that compliance with the
requirements of Sec. 35.200 would result in a fundamental alteration
in the nature of a service, program, or activity or in undue financial
and administrative burdens, compliance with Sec. 35.200 is required to
the extent that it does not result in a fundamental alteration or undue
financial and administrative burdens. In those circumstances where
personnel of the public entity believe that the proposed action would
fundamentally alter the service, program, or activity or would result
in undue financial and administrative burdens, a public entity has the
burden of proving that compliance with Sec. 35.200 would result in
such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the head of a public
entity or their designee after considering all resources available for
use in the funding and operation of the service, program, or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action would result in such an
alteration or such burdens, a public entity shall take any other action
that would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with disabilities receive the
benefits or services provided by the public entity to the maximum
extent possible.
Sec. 35.205 Effect of noncompliance that has a minimal impact on
access.
A public entity that is not in full compliance with the
requirements of Sec. 35.200(b) will be deemed to have met the
requirements of Sec. 35.200 in the limited circumstance in which the
public entity can demonstrate that the noncompliance has such a minimal
impact on access that it would not affect the ability of individuals
with disabilities to use the public entity's web content or mobile app
to do any of the following in a manner that provides substantially
equivalent timeliness, privacy, independence, and ease of use:
(a) Access the same information as individuals without
disabilities;
(b) Engage in the same interactions as individuals without
disabilities;
(c) Conduct the same transactions as individuals without
disabilities; and
(d) Otherwise participate in or benefit from the same services,
programs, and activities as individuals without disabilities.
Sec. Sec. 35.206-35.209 [Reserved]
0
4. Add appendix D to part 35 to read as follows:
Appendix D to Part 35--Guidance to Revisions to ADA Title II Regulation
on Accessibility of Web Information and Services of State and Local
Government Entities
Note: This appendix contains guidance providing a section-by-
section analysis of the revisions to this part published on April
24, 2024.
Section-by-Section Analysis and Response to Public Comments
This appendix provides a detailed description of the
Department's changes to this part (the title II regulation), the
reasoning behind those changes, and responses to public comments
received in connection with the rulemaking. The Department made
changes to subpart A of this part and added subpart H to this part.
The section-by-section analysis addresses the changes in the order
they appear in the title II regulation.
Subpart A--General
Section 35.104 Definitions
``Archived Web Content''
The Department is including in Sec. 35.104 a definition for
``archived web content.'' ``Archived web content'' is defined as web
content that was created before the date the public entity is
required to comply with subpart H of this part, reproduces paper
documents created before the date the public entity is required to
comply with subpart H, or reproduces the contents of other physical
media created before the date the public entity is required to
comply with subpart H. Second, the web content is retained
exclusively for reference, research, or recordkeeping. Third, the
web content is not altered or updated after the date of archiving.
Fourth, the web content is organized and stored in a dedicated area
or areas clearly identified as being archived. The definition is
meant to capture historic web content that, while outdated or
superfluous, is maintained unaltered in a dedicated archived area
for reference, research, or recordkeeping. The term is used in the
exception set forth in Sec. 35.201(a). The Department provides a
more detailed explanation of the application of the exception in the
section-by-section analysis of Sec. 35.201(a).
The Department made several revisions to the definition of
``archived web content'' from the notice of proposed rulemaking
(``NPRM''). The Department added a new part to the definition to
help clarify the scope of content covered by the definition and
associated exception. The new part of the definition, the first
part, specifies that archived web content is limited to three types
of historic content: web content that was created before the date
the public entity is required to comply with subpart H of this part;
web content that reproduces paper documents created before the date
the public entity is required to comply with subpart H; and web
content that reproduces the contents of other physical media created
before the date the public entity is required to comply with subpart
H.
Web content that was created before the date a public entity is
required to comply with subpart H of this part satisfies the first
part of the definition. In determining the date web content was
created, the Department does not intend to prohibit public entities
from making minor adjustments to web content that was initially
created before the relevant compliance dates specified in Sec.
35.200(b), such as by redacting personally identifying information
from web content as necessary before it is posted to an archive,
even if the adjustments are made after the compliance date. In
contrast, if a public entity makes substantial changes to web
content after the date the public entity is required to comply with
subpart H, such as by adding, updating, or rearranging content
before it is posted to an archive, the content would likely no
longer meet the first part of the definition. If the public entity
later alters or updates the content after it is posted in an
archive, the content would not meet the third part of the definition
of ``archived web content'' and it would generally need to conform
to WCAG 2.1 Level AA.
Web content that reproduces paper documents or that reproduces
the contents of other physical media would also satisfy the first
part of the definition if the paper documents or the contents of the
other physical media were created before the date the public entity
is required to comply with subpart H of this part. Paper documents
include various records that may have been printed, typed,
handwritten, drawn, painted, or otherwise marked on paper.
Videotapes, audiotapes, film negatives, CD-ROMs, and DVDs are
examples of physical media. The Department anticipates that public
entities may identify or discover historic paper documents or
historic content contained on physical media that they wish to post
in an online archive following the time they are required to comply
with subpart H. For example, a State agricultural agency might move
to a new building after the date it is required to comply with
subpart H and discover a box in storage that contains
[[Page 31339]]
hundreds of paper files and photo negatives from 1975 related to
farms in the state at that time. If the agency reproduced the
documents and photos from the film negatives as web content, such as
by scanning the documents and film negatives and saving the scans as
PDF documents that are made available online, the resulting PDF
documents would meet the first part of the definition of ``archived
web content'' because the underlying paper documents and photos were
created in 1975. The Department reiterates that it does not intend
to prohibit public entities from making minor adjustments to web
content before posting it to an archive, such as by redacting
personally identifying information from paper documents. Therefore,
the State agricultural agency could likely redact personally
identifying information about farmers from the scanned PDFs as
necessary before posting them to its online archive. But, if the
agency were to make substantial edits to PDFs, such as by adding,
updating, or rearranging content before posting the PDFs to its
archive, the PDFs would likely not meet the first part of the
definition of ``archived web content'' because, depending on the
circumstances, they may no longer be a reproduction of the historic
content. In addition, if the agency later altered or updated the
PDFs after they were posted in an archive, the content would not
meet the third part of the definition of ``archived web content''
and it would generally need to conform to WCAG 2.1 Level AA.
The Department added the first part to the definition of
``archived web content'' after considering all the comments it
received. In the NPRM, the Department sought feedback about the
archived web content exception, including whether there are
alternatives to the exception that the Department should consider or
additional limitations that should be placed on the exception.\1\
Commenters suggested various ways to add a time-based limitation to
the definition or exception. For example, some commenters suggested
that archived content should be limited to content created or posted
before a certain date, such as the date a public entity is required
to comply with subpart H of this part; there should be a certain
time period before web content can be archived, such as two years
after the content is created or another time frame based on
applicable laws related to public records; the exception should
expire after a certain period of time; or public entities should
have to remediate archived web content over time, prioritizing
content that is most important for members of the public. In
contrast, another commenter suggested that the exception should
apply to archived web content posted after the date the public
entity is required to comply with subpart H if the content is of
historical value and only minimally altered before posting.
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\1\ 88 FR 51967.
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After reviewing the comments, the Department believes the first
part of the definition sets an appropriate time-based limitation on
the scope of content covered by the definition and exception that is
consistent with the Department's stated intent in the NPRM. In the
NPRM, the Department explained that the definition of ``archived web
content'' and the associated exception were intended to cover
historic content that is outdated or superfluous.\2\ The definition
in Sec. 35.104, which is based on whether the relevant content was
created before the date a public entity is required to comply with
subpart H of this part, is now more aligned with, and better
situated to implement, the Department's intent to cover historic
content. The Department believes it is appropriate to include a
time-based limitation in the definition, rather than to add new
criteria stating that content must be historic, outdated, or
superfluous, because it is more straightforward to differentiate
content based on the date the content was created. Therefore, there
will be greater predictability for individuals with disabilities and
public entities as to which content is covered by the exception.
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\2\ 88 FR 51966.
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The Department declines to establish time-based limitations for
when content may be posted to an archive or to otherwise set an
expiration date for the exception. As discussed elsewhere in this
appendix, the Department recognizes that many public entities will
need to carefully consider the design and structure of their web
content before dedicating a certain area or areas for archived
content, and that, thereafter, it will take time for public entities
to identify all content that meets the definition of ``archived web
content'' and post it in the newly created archived area or areas.
The archived web content exception thus provides public entities
flexibility as to when they will archive web content, so long as the
web content was created before the date the public entity was
required to comply with subpart H of this part or the web content
reproduces paper documents or the contents of other physical media
created before the date the public entity was required to comply
with subpart H. In addition, the Department does not believe it is
necessary to establish a waiting period before newly created web
created content can be posted in an archive. New content created
after the date a public entity is required to comply with subpart H
will generally not meet the first part of the definition of
``archived web content.'' In the limited circumstances in which
newly created web content could meet the first part of the
definition because it reproduces paper documents or the contents of
other physical media created before the date the public entity is
required to comply with subpart H, the Department believes the scope
of content covered by the exception is sufficiently limited by the
second part of the definition: whether the content is retained
exclusively for reference, research, or recordkeeping.
In addition to adding a new first part to the definition of
``archived web content,'' the Department made one further change to
the definition from the NPRM. In the NPRM, what is now the second
part of the definition pertained to web content that is
``maintained'' exclusively for reference, research, or
recordkeeping. The word ``maintained'' is now replaced with
``retained.'' The revised language is not intended to change or
limit the coverage of the definition. Rather, the Department
recognizes that the word ``maintain'' can have multiple relevant
meanings. In some circumstances, ``maintain'' may mean ``to continue
in possession'' of property, whereas in other circumstances it might
mean ``to engage in general repair and upkeep'' of property.\3\ The
Department uses the word ``maintain'' elsewhere in the title II
regulation, at Sec. 35.133(a), consistent with the latter
definition. In contrast, the third part of the definition for
``archived web content'' specifies that content must not be altered
or updated after the date of archiving. Such alterations or updates
could be construed as repair or upkeep, but that is not what the
Department intended to convey with its use of the word
``maintained'' in this provision. To avoid confusion about whether a
public entity can alter or update web content after it is archived,
the Department instead uses the word ``retained,'' which has a
definition synonymous with the Department's intended use of
``maintain'' in the NPRM.\4\
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\3\ Maintain, Black's Law Dictionary (11th ed. 2019).
\4\ See Retain, Black's Law Dictionary (11th ed. 2019) (``To
hold in possession or under control; to keep and not lose, part
with, or dismiss.'').
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Commenters raised concerns about several aspects of the
definition of ``archived web content.'' With respect to the second
part of the definition, commenters stated that the definition does
not clearly articulate when content is retained exclusively for
reference, research, or recordkeeping. Commenters stated that the
definition could be interpreted inconsistently, and it could be
understood to cover important information that should be accessible.
For example, commenters were concerned that web content containing
public entities' past meeting minutes where key decisions were made
would qualify as archived content, as well as web content containing
laws, regulations, court decisions, or prior legal interpretations
that are still relevant. Therefore, commenters suggested that the
definition should not cover recordkeeping documents, agendas,
meeting minutes, and other related documents at all. One commenter
recommended adding to the definition to clarify that it does not
apply to content a public entity uses to offer a current service,
program, or activity, and another commenter suggested that content
should be archived depending on how frequently members of the public
seek to access the content. One commenter also stated that the
Department is left with the responsibility to determine whether web
content is appropriately designated as archived when enforcing
subpart H of this part in the future, and the commenter believed
that this enforcement may be insufficient to avoid public entities
evading their responsibilities under subpart H. Another commenter
recommended that the Department should conduct random audits to
determine if public entities are properly designating archived web
content.
The Department's revised definition of ``archived web content,''
and specifically the new first part of the definition, make clear
that the definition only pertains to content created before the date
the public entity is
[[Page 31340]]
required to comply with subpart H of this part. Therefore, new
content such as agendas, meeting minutes, and other documents
related to meetings that take place after the public entity is
required to comply with subpart H would likely not meet all parts of
the definition of ``archived web content.'' This revision to the
regulatory text is responsive to comments raising the concern that
current and newly created content might be erroneously labeled as
archived based on perceived ambiguity surrounding when content is
being retained solely for ``reference, research, or recordkeeping.''
Given the wide variety of web content that public entities provide
or make available, the Department does not believe it is advisable
to add additional, more specific language in the definition about
what types of content are covered. The Department also believes it
would be difficult to create a more specific and workable definition
for ``archived web content'' based on how frequently members of the
public seek to view certain content given the wide variation in the
types and sizes of public entities and the volume of their web
traffic. Whether web content is retained exclusively for reference,
research, or recordkeeping will depend on the facts of the
particular situation. Based on some of the examples of web content
that commenters discussed in connection with the definition, the
Department notes that if a public entity posts web content that
identifies the current policies or procedures of the public entity,
or posts web content containing or interpreting applicable laws or
regulations related to the public entity, that web content is
unlikely to be covered by the exception. This is because the content
is notifying members of the public about their ongoing rights and
responsibilities. It therefore is not, as the definition requires,
being used exclusively for reference, research, or recordkeeping.
Commenters also raised concerns about the fourth part of the
definition of ``archived web content,'' which requires archived web
content to be stored in a dedicated area or areas clearly identified
as being archived. Some commenters did not believe public entities
should be required to place archived web content in a dedicated area
or areas clearly identified as being archived in order to be covered
by the exception at Sec. 35.201(a). Commenters stated that public
entities should retain flexibility in organizing and storing files
according to how their web content is designed and structured, and
it might not be clear to members of the public to look for content
in an archive depending on the overall makeup of the web content.
Commenters also stated that it would be burdensome to create an
archive area, identify web content for the archive, and move the
content into the archive. One commenter stated that public entities
might remove content rather than move it to a dedicated archive.
Commenters instead suggested that the web content itself could be
individually marked as archived regardless of where it is posted.
One commenter also requested the Department clarify that the term
``area'' includes ``websites'' and ``repositories'' where archived
web content is stored.
After carefully weighing these comments, the Department has
decided not to change the fourth part of the definition for
``archived web content.'' The Department believes storing archived
web content in a dedicated area or areas clearly identified as being
archived will result in the greatest predictability for individuals
with disabilities about which web content they can expect to conform
to WCAG 2.1 Level AA. However, the Department notes that it did not
identify specific requirements about the structure of an archived
area, or how to clearly identify an area as being archived, in order
to provide public entities greater flexibility when complying with
subpart H of this part. For example, in some circumstances a public
entity may wish to create separate web pages or websites to store
archived web content. In other circumstances, a public entity may
wish to clearly identify that a specific section on a specific web
page contains archived web content, even if the web page also
contains non-archived content in other separate sections. However
public entities ultimately decide to store archived web content, the
Department reiterates that predictability for individuals with
disabilities is paramount. To this end, the label or other
identification for a dedicated archived area or areas must be clear
so that individuals with disabilities are able to detect when there
is content they may not be able to access. Whether a particular
dedicated area is clearly identified as being archived will, of
course, depend on the facts of the particular situation. The
Department also emphasizes that the existence of a dedicated area or
areas for archived content must not interfere with the accessibility
of other web content that is not archived.
Some commenters also recommended an alternative definition of
``archived web content'' that does not include the second or fourth
parts of the definition. Commenters proposed that archived web
content should be defined as web content that (1) was provided or
made available prior to the effective date of the final rule and (2)
is not altered or updated after the effective date of the final
rule. While the Department agrees that a time-based distinction is
appropriate and has therefore added the first part to the
definition, the Department does not believe the commenters' approach
suggested here is advisable because it has the potential to cause a
significant accessibility gap for individuals with disabilities if
public entities rely on web content that is not regularly updated or
changed. Under the commenters' proposed definition, the exception
for archived web content might cover important web content used for
reasons other than reference, research, or recordkeeping if the
content has not been updated or altered. As discussed in more detail
in the section-by-section analysis of Sec. 35.201(a), the purpose
of the exception for archived web content is to help public entities
focus their resources on making accessible the most important
materials that people use most widely and consistently, rather than
historic or outdated web content that is only used for reference,
research, or recordkeeping. Furthermore, as discussed in the
preceding paragraph, the Department believes the fourth part of the
definition is necessary to ensure the greatest predictability for
individuals with disabilities about which web content they can
expect to conform to WCAG 2.1 Level AA.
Commenters made other suggestions related to the definition of
and exception for ``archived web content.'' The Department has
addressed these comments in the discussion of the Sec. 35.201(a)
archived web content exception in the section-by-section analysis.
``Conventional Electronic Documents''
The Department is including in Sec. 35.104 a definition for
``conventional electronic documents.'' ``Conventional electronic
documents'' are defined as web content or content in mobile apps
that is in the following electronic file formats: portable document
formats, word processor file formats, presentation file formats, and
spreadsheet 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), and Microsoft
Excel files (i.e., spreadsheet files). The term ``conventional
electronic documents'' is used in Sec. 35.201(b) to provide an
exception for certain such documents that are available as part of a
public entity's web content or mobile apps before the compliance
date of subpart H of this part, unless such documents are currently
used to apply for, gain access to, or participate in the public
entity's services, programs, or activities. The term is also used in
Sec. 35.201(d) to provide an exception for certain individualized,
password-protected or otherwise secured conventional electronic
documents, and is addressed in more detail in the discussion in the
section-by-section analysis of Sec. 35.201(b) and (d). The
definition of ``conventional electronic documents'' covers documents
created or saved as electronic files that are commonly available in
an electronic form on public entities' web content and mobile apps
and that would have been traditionally available as physical printed
output.
In the NPRM, the Department asked whether it should craft a more
flexible definition of ``conventional electronic documents'' instead
of a definition based on an exhaustive list of file formats.\5\ In
response, the Department heard a range of views from commenters.
Some commenters favored a broader and more generalized definition
instead of an exhaustive list of file formats. For example,
commenters suggested that the Department could describe the
properties of conventional electronic documents and provide a non-
exhaustive list of examples of such documents, or the definition
could focus on the importance of the content contained in a document
rather than the file format. Some commenters favoring a broader
definition reasoned that technology evolves rapidly, and the
exhaustive list of file formats the Department
[[Page 31341]]
identified might not keep pace with technological advancements.
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\5\ 88 FR 51958, 51968.
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Other commenters preferred the Department's approach of
identifying an exhaustive list of file formats. Some commenters
noted that an exhaustive list provides greater clarity and
predictability, which assists public entities in identifying their
obligations under subpart H of this part. Some commenters suggested
that the Department could provide greater clarity by identifying
specific file types in the regulatory text rather than listing file
formats (e.g., the Department might specify the Microsoft Word
``.docx'' file type rather than ``word processor file formats'').
After considering all the comments, the Department declines to
change its approach to defining conventional electronic documents.
The Department expects that a more flexible definition would result
in less predictability for both public entities and individuals with
disabilities, especially because the Department does not currently
have sufficient information about how technology will develop in the
future. The Department seeks to avoid such uncertainty because the
definition of ``conventional electronic documents'' sets the scope
of two exceptions, Sec. 35.201(b) and (d). The Department carefully
balanced benefits for individuals with disabilities with the
challenges public entities face in making their web content and
mobile apps accessible in compliance with subpart H of this part
when crafting these exceptions, and the Department does not want to
inadvertently expand or narrow the exceptions with a less
predictable definition of ``conventional electronic documents.''
Unlike in the NPRM, the definition of ``conventional electronic
documents'' does not include database file formats. In the NPRM, the
Department solicited comments about whether it should add any file
formats to, or remove any file formats from, the definition of
``conventional electronic documents.'' While some commenters
supported keeping the list of file formats in the proposed
definition as is, the Department also heard a range of views from
other commenters. Some commenters, including public entities and
trade groups representing public accommodations, urged the
Department to add additional file formats to the definition of
``conventional electronic documents.'' For example, commenters
recommended adding image files, video files, audio files, and
electronic books such as EPUB (electronic publications) or DAISY
(Digital Accessible Information System) files. Commenters noted that
files in such other formats are commonly made available by public
entities and they can be burdensome to remediate. Commenters
questioned whether there is a basis for distinguishing between the
file formats included in the definition and other file formats not
included in the definition.
Other commenters believed the list of file formats included in
the proposed definition of ``conventional electronic documents'' was
too broad. A number of disability advocacy groups stated that
certain document formats included in the definition are generally
easily made accessible. Therefore, commenters did not believe such
documents should generally fall within the associated exceptions
under Sec. 35.201(b) and (d). Some commenters also stated that
there could be confusion about accessibility requirements for
database files because database files and some spreadsheet files may
include data that are not primarily intended to be human-readable.
The commenters stated that in many cases such content is instead
intended to be opened and analyzed with other special software
tools. The commenters pointed out that data that is not primarily
intended to be human-readable is equally accessible for individuals
with disabilities and individuals without disabilities, and they
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