[Federal Register Volume 83, Number 14 (Monday, January 22, 2018)]
[Rules and Regulations]
[Pages 2912-2916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00848]


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ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD

36 CFR Part 1194

[Docket No. ATBCB-2015-0002]
RIN 3014-AA37


Information and Communication Technology (ICT) Standards and 
Guidelines

AGENCY: Architectural and Transportation Barriers Compliance Board.

ACTION: Direct final rule; request for comments.

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SUMMARY: The Architectural and Transportation Barriers Compliance Board 
(we, Access Board, or Board) is issuing this direct final rule to amend 
its regulations addressing accessibility requirements for information 
and communication technology to correct several inadvertent drafting 
errors in a final rule published in the Federal Register on January 18, 
2017. Specifically, this direct final rule corrects two typographical 
errors and the unintentional deletion of longstanding requirements for 
TTY compatibility and functionality that have been in place for nearly 
two decades. These minor amendments neither establish new substantive 
accessibility requirements, nor impose any costs on regulated entities. 
The Access Board is issuing these amendments directly as a final rule 
because we believe they are noncontroversial, unlikely to receive 
adverse comment, and will prevent confusion.

DATES: This direct final rule is effective March 23, 2018, without 
further action, unless adverse comment is received by February 21, 
2018. If timely adverse comment is received, the Access Board will 
publish a notification of withdrawal of the rule in the Federal 
Register before the effective date. Such notification may withdraw the 
direct final rule in whole or in part.

ADDRESSES: Submit comments by any one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments. The identifier for 
this docket is ATBCB-2015-0002.
     Email: board.gov">docket@access-board.gov. Include ATBCB-2015-0002 in 
the subject line of the message.
     Facsimile: 202-272-0081.
     Mail/Hand Delivery/Courier: Office of Technical and 
Information Services,

[[Page 2913]]

Access Board, 1331 F Street NW, Suite 1000, Washington, DC 20004-1111.
    All comments, including any personal information provided, will be 
posted without change to http://regulations.gov and available for 
public viewing.

FOR FURTHER INFORMATION CONTACT: Timothy Creagan, Access Board, 1331 F 
Street NW, Suite 1000, Washington, DC 20004-1111. Telephone: (202) 272-
0016 (voice) or (202) 272-0074 (TTY). Or Bruce Bailey, Access Board, 
1331 F Street NW, Suite 1000, Washington, DC 20004-1111. Telephone: 
(202) 272-0024 (voice) or (202) 272-0070 (TTY). Email: board.gov">508@access-board.gov.

SUPPLEMENTARY INFORMATION: 

Legal Authority

    Section 508 of the Rehabilitation Act of 1973 (hereafter, ``Section 
508''), as amended, mandates that Federal agencies ``develop, procure, 
maintain, or use'' information and communication technology (ICT) in a 
manner that ensures Federal employees with disabilities have comparable 
access to, and use of, such information and data relative to other 
Federal employees, unless doing so would impose an undue burden. 29 
U.S.C. 794d. Section 508 also requires Federal agencies to ensure that 
members of the public with disabilities have comparable access to 
publicly-available information and data unless doing so would impose an 
undue burden on the agency. Id. The Access Board is charged with 
developing and maintaining standards that establish technical and 
functional performance criteria for ICT accessibility. 29 U.S.C. 
794d(a)(2)(A), (B).
    Section 255 of the Communications Act of 1934 (hereafter, ``Section 
255''), as amended, requires telecommunications equipment and services 
to be accessible to, and usable by, individuals with disabilities, 
where readily achievable. 47 U.S.C. 255. ``Readily achievable'' is 
defined in the statute as ``easily accomplishable and able to be 
carried out without much difficulty or expense.'' Id. Section 255 tasks 
the Access Board, in conjunction with the Federal Communications 
Commission (FCC), with the development of guidelines for the 
accessibility of telecommunications equipment and customer premises 
equipment, as well as their periodic review and update. The FCC, 
however, has exclusive authority under Section 255 to issue 
implementing regulations and carry out their enforcement. Id. Section 
255(f).

Purpose of Direct Final Rule

    On January 18, 2017, the Access Board published a final rule in the 
Federal Register (82 FR 5790) (hereafter, ``ICT Final Rule''), which 
revised and updated--in a single rulemaking--the standards for Section 
508-covered ICT developed, procured, maintained, or used by Federal 
agencies (hereafter, ``508 Standards''), as well as the guidelines for 
telecommunications equipment and customer premises equipment covered by 
Section 255 (hereafter, ``255 Guidelines''). Because nearly two decades 
had passed since the original issuance of our then-existing 508 
Standards and 255 Guidelines, the ICT Final Rule was aimed at 
``refreshing'' these regulations by, among other things, addressing 
changing technology and harmonizing with ICT accessibility standards 
that had been developed worldwide in recent years.
    Subsequently, we discovered several small drafting errors in the 
ICT Final Rule. These errors included a few typographical errors and 
the inadvertent deletion of then-existing provisions that require 
telecommunications products and systems with two-way voice 
communication capabilities to also provide TTY compatibility and 
functionality. By this rule, the Access Board corrects these 
typographical errors and restores mistakenly deleted TTY requirements 
for ICT with two-way voice communication, albeit with slightly updated 
organization and wording (with no change in substance) for consistency 
with the ICT Final Rule.
    The Access Board is publishing this direct final rule without prior 
notice and comment. The Administrative Procedure Act permits agencies 
to publish final rules without prior notice and comment when, for good 
cause, they determine such procedures are unnecessary. See 5 U.S.C. 
553(b)(B). We view the minor, technical corrections in this rule as 
noncontroversial and do not anticipate adverse comment. Moreover, the 
public interest is best served by having these corrections without 
delay to prevent confusion concerning these errors in the ICT Final 
Rule and ensure that there are no gaps in accessibility requirements 
for ICT covered by Sections 508 or 255. Accordingly, there is good 
cause for waiver of prior notice and comment.
    This direct final rule will take effect on the specified effective 
date, without further action, unless the Access Board receives adverse 
comment within the comment period. We consider an adverse comment to be 
a comment that challenges the propriety of the rule or asserts that it 
would be ineffective or unacceptable without material change. If the 
Access Board receives timely adverse comment, we will publish a 
notification in the Federal Register announcing full or partial 
withdrawal of this rule. If an adverse comment applies only to one part 
of this direct final rule, and it is possible to withdraw that part 
without defeating the purpose of the remaining parts of the rule, we 
may adopt, as final, those parts of this rule that received no adverse 
comment. Should the Access Board withdraw this rule due to adverse 
comment (in whole in part), we may subsequently incorporate such 
comment(s) into another direct final rule or publish a notice of 
proposed rulemaking.

Discussion of Changes

A. Administrative Corrections

    This direct final rule remedies two typographical errors on the ICT 
Final Rule. First, the table of contents for appendix A to part 1194 
(Section 508 of the Rehabilitation Act: Application and Scoping 
Requirements) incorrectly lists the title of E205 as ``Content.'' The 
correct title for this section is ``Electronic Content.'' In this rule, 
we correct this error by inserting the word ``Electronic'' before 
``Content'' in the table of contents entry for E205 in appendix A. 
Second, also in appendix A to part 1194, there is a mistaken cross-
reference in E202.6, Undue Burden or Fundamental Alteration. E202.6 
currently reads, in pertinent part: ``Where an agency determines in 
accordance with E202.5 that conformance to requirements in the Revised 
508 Standards would impose an undue burden of would result in a 
fundamental alternation in the nature of the ICT . . .'' (emphasis 
added). This text should instead refer to E202.6. This direct final 
rule revises the cross-reference in the first sentence of E202.6 from 
``E202.5'' to ``E202.6.''

B. Restoration of TTY-Related Accessibility Requirements

1. Background
    The second set of corrections in this direct final rule restores 
the TTY-related accessibility requirements for ICT with two-way voice 
communication to the Access Board's 508 Standards and 255 Guidelines. 
As noted, when the Access Board published the ICT Final Rule in January 
2017, ICT with two-way voice communication had long been required to 
ensure TTY compatibility and functionality. However, as discussed 
below, a drafting error resulted in these TTY-related accessibility 
requirements being mistakenly removed from the ICT Final Rule. This 
direct final rule restores these original TTY-related requirements to 
the Board's 508 Standards and 255 Guidelines, albeit with minor, non-

[[Page 2914]]

substantive changes to better align them with the revised organization 
and language in the ICT Final Rule.
    Both the original 508 Standards (issued in 2000) and 255 Guidelines 
(issued in 1998) required telecommunications products and services with 
two-way voice communication to provide certain TTY-related features, 
including a connection point for TTY (e.g., RJ-11 connector), a 
microphone capable of being turned on and off to allow a user to 
intermix speech and TTY use, and support for cross-manufacturer, non-
proprietary standard TTY signal protocols (e.g., Baudot). See, e.g., 
Electronic and Information Technology Accessibility Standards--Final 
Rule, 65 FR 80500 (Dec. 21, 2000); Telecommunications Act Accessibility 
Guidelines--Final Rule, 63 FR 5608 (Feb. 3, 1998); see also 36 CFR part 
1194 (2017), appendix D, section D1194.23(a)-(e) (reprinting original 
508 Standards published in 2000 as appendix to revised regulations). 
TTYs (e.g., teletypewriters)--which were developed in the 1970s--allow 
persons with hearing- or speech-related disabilities to send and 
receive text communications over telephone networks.
    In recent years, however, other text-based means of communication 
have emerged, including simple message service (SMS or text messages) 
and real-time text (RTT) technology. RTT technology permits the 
transmission of text in near real-time as each character is typed. SMS 
messages are not transmitted until the user issues a send function 
(usually by hitting the ``enter'' key). Like SMS, TTY technology has a 
significant disadvantage as compared to RTT--namely, to avoid 
scrambling messages, users must send completed messages on a turn-by-
turn basis. This ability to send text transmissions instantly and 
simultaneously permits more conversational, interactive text-based 
communications that are akin to telephone conversations, as well as 
facilitating better communication during emergency situations. As a 
newer (digital) technology, RTT is directly compatible with wireless 
and internet protocol-based networks, whereas TTY, as an analog 
technology, is not. TTY signals have acoustic characteristics that 
cause them to be corrupted and become unusable with the typical 
digitization algorithms used for transmitting voice over wireless and 
IP-based networks.
    By early 2015, when the Access Board published the notice of 
proposed rulemaking to ``refresh'' the 508 Standards and 255 
Guidelines, RTT technology had matured sufficiently for the Board to 
propose that RTT supplant TTY as the form of text-based functionality 
required for ICT with two-way voice communication. See Notice of 
Proposed Rulemaking--Information and Communication Technology Standards 
and Guidelines, 80 FR 10880, 10900-10901, 10909 & 10910 (Feb. 27, 2015) 
(hereafter, ``ICT NPRM''). Most comments received in response to the 
ICT NPRM were supportive of the Access Board's RTT proposal, though 
some expressed differing views on the appropriate technical standard 
for RTT interoperability with certain systems (such as Voice over 
internet Protocol or ``VoIP'' systems).
    In May 2016, about one year after the ICT NPRM comment period had 
closed, the FCC initiated a proceeding (at the behest of several 
telecommunications companies) to update its accessibility rules to 
allow telecommunications providers and manufacturers to support RTT in 
lieu of TTY technology in IP-based telecommunication environments. See 
Transition from TTY to Real-Time Text Technology--Notice of Proposed 
Rulemaking, 81 FR 33170 (May 25, 2016).
    In deference to the FCC's ongoing rulemaking efforts on a 
regulatory transition from TTY to RTT technology, the Access Board 
elected to postpone adoption of RTT-related accessibility requirements 
in the ICT Final Rule. See 82 FR at 5800. Consequently, we removed the 
proposed requirements for RTT functionality from Chapter 4 of the final 
rule, and simply reserved section 412.5 in the final rule for future 
use should the Board subsequently promulgate RTT-related requirements. 
See 36 CFR part 1194, appendix C, section 412.5.
    By reserving adoption of RTT-related requirements, the Access Board 
did not thereby intend to leave a ``gap'' in accessibility requirements 
to ensure that persons with communication disabilities can use 
telephone networks. In other words, with the removal and reservation of 
RTT-related requirements, the TTY-related requirements in the original 
508 Standards and 255 Guidelines should have been incorporated into the 
ICT Final Rule. However, due to a drafting oversight, these existing 
TTY requirements did not get incorporated into the final rule. As a 
result, the ICT Final Rule is presently--and unintentionally--silent 
with respect to TTY functionality requirements for ICT with two-way 
voice communication.
    In this direct final rule, the Access Board restores the TTY-
related requirements from the original 508 Standards and 255 Guidelines 
to ensure that, during the pendency of further rulemaking on RTT-
related accessibility requirements, persons with communications 
disabilities will still be able to send and receive text-based 
communications over telephone networks.
    Under the ICT Final Rule, Federal agencies were afforded one year 
from rule publication (i.e., Jan. 18, 2018) to comply with the revised 
508 Standards. 82 FR at 5790, 5792 & 5821. The Access Board seeks to 
restore TTY-related requirements to the 508 Standards prior to this 
compliance date. The Board is not aware of any Federal agency having 
relied on the mistaken omission of TTY-related requirements from the 
ICT Final Rule as authorization to reduce or eliminate TTY 
functionality on their ICT with two-way voice communication.
2. Amended TTY Requirements
    As discussed in the preamble to the ICT Final Rule, the revised 508 
Standards and 255 Guidelines feature significantly revamped 
organizational format and wording relative to their predecessor 
standards and guidelines. See 82 FR at 5790-91. The TTY-related 
accessibility requirements from the original 508 Standards and 255 
Guidelines thus could not simply be reinserted into the revised 
standards and guidelines using their original wording and section 
numbering. Consequently, in this direct final rule, the TTY-related 
requirements from the original 508 Standards and 255 Guidelines have 
been modestly revised--in minor, non-substantive ways--so that they 
conform to the updated formatting and terminology used in the ICT Final 
Rule
    In summary, this direct final rule incorporates the original TTY-
related requirements into the revised 508 Standards and 255 Guidelines 
as follows. The technical specifications for TTY functionality appear 
as a new subsection (412.8) to the section that collectively sets forth 
the technical requirements applicable to ICT with two-way voice 
communication. We retained the original wording of these reinstated 
TTY-related requirements to the greatest extent possible; some minor, 
non-substantive wording changes were needed for consistency with 
updated terminology used in the ICT Final Rule. Additionally, in the 
scoping provision for hardware covered by the 255 Guidelines (C204.1), 
a companion exception has been added that exempts 255-covered hardware 
from the accessibility requirements in new 412.8.3. This exception 
mirrors the existing scope of coverage under the original 255 
Guidelines. Unlike the

[[Page 2915]]

original 508 Standards, the original 255 Guidelines do not require the 
features addressed in 412.8.3--namely, voice mail, auto-attendant, and 
interactive voice response telecommunications systems--to provide TTY 
functionality. Compare, e.g., 36 CFR 1193.51(d) (2016) (TTY-related 
compatibility requirements in original 255 Guidelines) with 36 CFR 
1194.23(c), (e) (2016) (specifying, in original 508 Standards, that 
telecommunications systems for voice mail, auto-attendant, interactive 
voice response, and caller identification must be compatible with 
TTYs). Lastly, in consideration of technological advances, we have 
clarified that the requirements for TTY compatibility (412.8) cover 
software that provides TTY functionality, as well as stand-alone TTY 
devices and other hardware.
    In Table 1 below, we provide a ``cross-walk'' that lists the TTY-
related provisions added by the direct final rule and identifies their 
corresponding provisions in the original 508 Standards and 255 
Guidelines.

 Table 1--Crosswalk of TTY Provisions in the Direct Final Rule and Their
     Corresponding Provisions in the Original 508 Standards and 255
                               Guidelines
------------------------------------------------------------------------
                                                           Original 255
                                          Original 508      guidelines
   Direct final rule (new Sec.   )         standards      (original Sec.
                                         (original Sec.           )
-----------------------------------------------)------------------------
412.8................................         1194.23(a)      1193.51(d)
412.8.1..............................         1194.23(a)      1193.51(d)
412.8.2..............................         1194.23(a)      1193.51(d)
412.8.3..............................         1194.23(b)      1193.51(e)
412.8.4 (Section 508-covered             1194.23(c), (e)             n/a
 hardware) & C204.1, Exception for
 412.8.4 (Section 255-covered
 hardware)...........................
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Regulatory Process Matters

A. Regulatory Planning and Review (Executive Orders 12866 and 13563)

    The Access Board has examined the impact of this direct final rule 
under Executive Orders 12866 and 13563. These executive orders direct 
agencies to assess the costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). This rule does not impose any incremental costs or 
benefits because it makes minor administrative corrections and, on the 
one substantive matter, merely retains (restores) existing TTY-related 
requirements for ICT with two-way voice communication that have been in 
place for nearly two decades. As such, this direct final rule is not a 
significant regulatory action for purposes of section 3(f) of Executive 
Order 12866.
    Additionally, because this direct final rule is a non-significant 
regulatory action that imposes no costs, it is also exempt from the 
requirements outlined in Executive Order 13771. See Exec. Order. 13771, 
82 FR 9339 (Feb. 3, 2017); OMB, M-17-21, Guidance Implementing 
Executive Order 13771, Titled ``Reducing Regulation and Controlling 
Regulatory Costs'' (April 5, 2017).

B. Congressional Review Act

    This direct final rule is not a major rule within the meaning of 
the Congressional Review Act (5 U.S.C. 801 et seq.).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires Federal agencies to 
analyze regulatory options that may assist in minimizing any 
significant impact of a rule on small businesses and small governmental 
jurisdictions. See 5 U.S.C. 604, 605(b). Because this direct final rule 
merely remedies several inadvertent drafting errors in the ICT Final 
Rule, including the unintentional deletion of longstanding TTY-related 
accessibility requirements, the Access Board certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities.

D. Federalism (Executive Order 13132)

    The Access Board has analyzed this direct final rule in accordance 
with the principles and criteria set forth in Executive Order 13132. 
The Board has determined that this action will not have a substantial 
direct effect on the States, or the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government, and, 
therefore, does not have Federalism implications.

E. Paperwork Reduction Act

    This direct final rule does not contain any new collections of 
information or recordkeeping requirements that require OMB approval 
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (codified at 2 U.S.C. 1531 
et seq.) (``UMRA'') generally requires that Federal agencies assess the 
effects of their discretionary regulatory actions that may result in 
the expenditure of $100 million (adjusted for inflation) or more in any 
one year by the private sector, or by state, local, and tribal 
governments in the aggregate. Because this direct final rule is being 
issued under the good cause exception in the Administrative Procedure 
Act section 553(b)(B), UMRA's analytical requirements are inapplicable. 
See 2 U.S.C. 1532(a).

List of Subjects in 36 CFR Part 1194

    Civil rights, Communications, Communications equipment, Computer 
technology, Electronic products, Government employees, Government 
procurement, Incorporation by reference, Individuals with disabilities, 
Reporting and recordkeeping requirements, Telecommunications.

    For the reasons stated in the preamble, and under the authority of 
47 U.S.C. 255(e), the Board amends 36 CFR part 1194 as follows:

PART 1194--INFORMATION AND COMMUNICATION TECHNOLOGY STANDARDS AND 
GUIDELINES

0
1. The authority citation for part 1194 continues to read as follows:

    Authority:  29 U.S.C. 794d, 47 U.S.C. 255.

Appendix A to Part 1194--[Amended]

0
2. In appendix A to part 1194:
0
a. In the table of contents, remove ``E205 Content'' and add in its 
place ``E205 Electronic Content''.
0
b. In section E202.6, in the first sentence, remove ``E202.5'' and add 
in its place ``E202.6''.

0
3. In appendix B to part 1194, revise the exception paragraph following 
section C204.1 to read as follows:

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Appendix B to Part 1194--Section 255 of the Communications Act: 
Application and Scoping Requirements

* * * * *
    C204.1 * * *
    EXCEPTION: Components of telecommunications equipment and 
customer premises equipment shall not be required to conform to 402, 
407.7, 407.8, 408, 412.8.4, and 415.
* * * * *

0
4. In appendix C to part 1194, add sections 412.8, 412.8.1, 412.8.2, 
412.8.3, and 412.8.4 in numerical order to read as follows:

Appendix C to Part 1194--Functional Performance Criteria and Technical

* * * * *
    412 ICT With Two-Way Voice Communication
* * * * *
    412.8 Legacy TTY Support. ICT equipment or systems with two-way 
voice communication that do not themselves provide TTY functionality 
shall conform to 412.8.
    412.8.1 TTY Connectability. ICT shall include a standard non-
acoustic connection point for TTYs.
    412.8.2 Voice and Hearing Carry Over. ICT shall provide a 
microphone capable of being turned on and off to allow the user to 
intermix speech with TTY use.
    412.8.3 Signal Compatibility. ICT shall support all commonly 
used cross-manufacturer non-proprietary standard TTY signal 
protocols where the system interoperates with the Public Switched 
Telephone Network (PSTN).
    412.8.4 Voice Mail and Other Messaging Systems. Where provided, 
voice mail, auto-attendant, interactive voice response, and caller 
identification systems shall be usable with a TTY.
* * * * *

    Approved by notational vote of the Access Board on January 12, 
2018.
David M. Capozzi,
Executive Director.
[FR Doc. 2018-00848 Filed 1-19-18; 8:45 am]
 BILLING CODE 8150-01-P