[Federal Register Volume 88, Number 149 (Friday, August 4, 2023)]
[Proposed Rules]
[Pages 51948-52020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15823]



[[Page 51947]]

Vol. 88

Friday,

No. 149

August 4, 2023

Part III





Department of Justice





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28 CFR Part 35





Nondiscrimination on the Basis of Disability; Accessibility of Web 
Information and Services of State and Local Government Entities; 
Proposed Rule

  Federal Register / Vol. 88 , No. 149 / Friday, August 4, 2023 / 
Proposed Rules  

[[Page 51948]]


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DEPARTMENT OF JUSTICE

28 CFR Part 35

[CRT Docket No. 144; AG Order No. 5729-2023]
RIN 1190-AA79


Nondiscrimination on the Basis of Disability; Accessibility of 
Web Information and Services of State and Local Government Entities

AGENCY: Civil Rights Division, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice (``Department'') is proposing to 
revise the regulation implementing title II of the Americans with 
Disabilities Act (``ADA'') in order to establish specific requirements, 
including the adoption of specific technical standards, for making 
accessible the services, programs, and activities offered by State and 
local Government entities to the public through the web and mobile 
apps.

DATES: Written comments must be postmarked, and electronic comments 
must be submitted, on or before October 3, 2023. Commenters should be 
aware that the electronic Federal Docket Management System (``FDMS'') 
will accept comments submitted prior to midnight Eastern Time on the 
last day of the comment period. Written comments postmarked on or 
before the last day are considered timely even though they may be 
received after the end of the comment period. Late comments are highly 
disfavored. The Department is not required to consider late comments.

ADDRESSES: You may submit comments, identified by RIN 1190-AA79 (or 
Docket ID No. 144), by any one of the following methods:
     Federal eRulemaking Website: www.regulations.gov. Follow 
the website's instructions for submitting comments.
     Regular U.S. Mail: Disability Rights Section, Civil Rights 
Division, U.S. Department of Justice, P.O. Box 440528, Somerville, MA 
02144.
     Overnight, Courier, or Hand Delivery: Disability Rights 
Section, Civil Rights Division, U.S. Department of Justice, 150 M St. 
NE, 9th Floor, Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Rebecca B. Bond, Chief, Disability 
Rights Section, Civil Rights Division, U.S. Department of Justice, at 
(202) 307-0663 (voice or TTY). This is not a toll-free number. 
Information may also be obtained from the Department's toll-free ADA 
Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY). You 
may obtain copies of this NPRM in an alternative format by calling the 
ADA Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY). 
A link to this NPRM is also available on www.ada.gov.

Electronic Submission of Comments and Posting of Public Comments

    Interested persons are invited to participate in this rulemaking by 
submitting written comments on all aspects of this rule via one of the 
methods and by the deadline stated above. When submitting comments, 
please include ``RIN 1190-AA79'' in the subject field. The Department 
also invites comments that relate to the economic, environmental, or 
federalism effects that might result from this rule. Comments that will 
provide the most assistance to the Department in developing this rule 
will reference a specific portion of the rule or respond to a specific 
question, explain the reason for any recommended change, and include 
data, information, or authority that support such recommended change.
    Please note that all comments received are considered part of the 
public record and made available for public inspection at https://www.regulations.gov. Such information includes personally identifiable 
information (``PII'') (such as your name and address). Interested 
persons are not required to submit their PII in order to comment on 
this rule. However, any PII that is submitted is subject to being 
posted to the publicly accessible https://www.regulations.gov/ site 
without redaction.
    Confidential business information clearly identified in the first 
paragraph of the comment as such will not be placed in the public 
docket file.
    The Department may withhold from public viewing information 
provided in comments that they determine may impact the privacy of an 
individual or is offensive. For additional information, please read the 
Privacy Act notice that is available via the link in the footer of 
https://www.regulations.gov. To inspect the agency's public docket file 
in person, you must make an appointment with the agency. Please see the 
FOR FURTHER INFORMATION CONTACT paragraph above for agency contact 
information.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

A. Purpose of Proposed Rule and Need for the Rule

    Title II of the ADA provides that no qualified individual with a 
disability shall, by reason of such disability, be excluded from 
participation in or denied the benefits of the services, programs, or 
activities of a State or local government entity.\1\ The Department 
uses the phrases ``State and local government entities'' and ``public 
entities'' interchangeably throughout this Notice of Proposed 
Rulemaking (``NPRM'') to refer to ``public entities'' as defined in 42 
U.S.C. 12131(1) that are covered under part A of title II of the ADA. 
The Department has consistently made clear that the title II 
nondiscrimination provision applies to all services, programs, and 
activities of public entities, including those provided via the web. It 
also includes those provided via mobile applications (``apps''), which, 
as discussed in the proposed definition, are software applications that 
are designed to be downloaded and run on mobile devices such as 
smartphones and tablets. In this NPRM, the Department proposes 
technical standards for web content and mobile app accessibility to 
give public entities greater clarity in exactly how to meet their ADA 
obligations and to help ensure equal access to public entities' 
services, programs, and activities (also referred to as ``government 
services'') for people with disabilities.
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    \1\ 42 U.S.C. 12132.
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    Public entities are increasingly providing the public access to 
government services through their web content and mobile apps. For 
example, government websites and mobile apps often allow the public to 
obtain information or correspond with local officials without having to 
wait in line or be placed on hold. Members of the public can also pay 
fines, apply for State benefits, renew State-issued identification, 
register to vote, file taxes, request copies of vital records, and 
complete numerous other tasks via government websites. Individuals can 
often perform many of these same functions on mobile apps. 
Additionally, as discussed further, web- and mobile app-based access to 
these programs and activities has become especially critical since the 
start of the COVID-19 pandemic. Often, however, State and local 
government entities' web- and mobile app-based services are not 
designed accessibly and as a result are not equally available to 
individuals with disabilities.

[[Page 51949]]

    It is critical to ensure that people with disabilities can access 
important web content and mobile apps quickly, easily, independently, 
and equally. Just as steps can exclude people who use wheelchairs, 
inaccessible web content can exclude people with a range of 
disabilities from accessing government services. For example, access to 
voting information, up-to-date health and safety resources, and mass 
transit schedules and fare information may depend on having access to 
websites and mobile apps. With accessible web content and mobile apps, 
people with disabilities can access government services independently 
and in some cases with more privacy. By allowing people with 
disabilities to engage more fully with their governments, accessible 
web content and mobile apps also promote the equal enjoyment of 
fundamental constitutional rights, such as the rights to freedom of 
speech, assembly, association, petitioning, and due process of law.
    Accordingly, the Department is proposing technical requirements to 
provide concrete standards to public entities on how to fulfill their 
obligations under title II to provide equal access to all of their 
services, programs, and activities that are provided via the web and 
mobile apps. The Department believes the requirements described in this 
rule are necessary to ensure ``equality of opportunity, full 
participation, independent living, and economic self-sufficiency'' for 
individuals with disabilities, as set forth in the ADA.\2\
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    \2\ 42 U.S.C. 12101(a)(7).
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B. Legal Authority

    On July 26, 1990, President George H.W. Bush signed into law the 
ADA, a comprehensive civil rights law prohibiting discrimination on the 
basis of disability.\3\ Title II of the ADA, which this rule addresses, 
applies to State and local government entities. Title II extends the 
prohibition on discrimination established by section 504 of the 
Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, to all 
activities of State and local government entities regardless of whether 
the entities receive Federal financial assistance.\4\ Part A of title 
II protects qualified individuals with disabilities from discrimination 
on the basis of disability in services, programs, and activities 
provided by State and local government entities. Section 204(a) of the 
ADA directs the Attorney General to issue regulations implementing part 
A of title II but exempts matters within the scope of the authority of 
the Secretary of Transportation under section 223, 229, or 244.\5\
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    \3\ 42 U.S.C. 12101-12213.
    \4\ 42 U.S.C. 12131-65.
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    The Department of Justice is the only Federal agency with authority 
to issue regulations under title II, part A, of the ADA regarding the 
accessibility of State and local government entities' web content and 
mobile apps. In addition, under Executive Order 12250, the Department 
of Justice is responsible for ensuring consistency and effectiveness in 
the implementation of section 504 across the Federal Government (aside 
from provisions relating to equal employment). Given Congress's intent 
for parity between section 504 and title II of the ADA, the Department 
must also ensure that any interpretations of section 504 are consistent 
with title II (and vice versa).\6\ The Department, therefore, also has 
a lead role in coordinating interpretations of section 504 (again, 
aside from provisions relating to equal employment), including its 
application to websites and mobile apps, across the Federal Government.
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    \5\ See 42 U.S.C. 12134. Section 229(a) and section 244 of the 
ADA direct the Secretary of Transportation to issue regulations 
implementing part B of title II, except for section 223. See 42 
U.S.C. 12149, 12164.
    \6\ Memorandum for Federal Agency Civil Rights Directors and 
General Counsels from the Office of the Assistant Attorney General, 
Civil Rights Division, Department of Justice, https://www.justice.gov/crt/file/1466601/download [https://perma.cc/YN3G-J7F9].
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C. Overview of Key Provisions of This Proposed Regulation

    In this NPRM, the Department proposes to add a new subpart H to the 
title II ADA regulation, 28 CFR part 35, that will set forth technical 
requirements for ensuring that web content that State and local 
government entities make available to members of the public or use to 
offer services, programs, and activities to members of the public is 
readily accessible to and usable by individuals with disabilities. Web 
content is information or sensory experience that is communicated to 
the user by a web browser or other software. This includes text, 
images, sounds, videos, controls, animations, navigation menus, and 
documents. Examples of sensory experiences include content like visual 
works of art or musical performances.\7\ Proposed subpart H also sets 
forth technical requirements for ensuring the accessibility of mobile 
apps that a public entity makes available to members of the public or 
uses to offer services, programs, or activities to members of the 
public.
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    \7\ See W3C[supreg], Web Content Accessibility Guidelines 2.1 
(June 5, 2018), https://www.w3.org/TR/WCAG21/#dfn-specific-sensory-experience [https://perma.cc/5554-T2R2].
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    The Department proposes to adopt an internationally recognized 
accessibility standard for web access, the Web Content Accessibility 
Guidelines (``WCAG'') 2.1 \8\ published in June 2018, https://www.w3.org/TR/WCAG21/ [https://perma.cc/H2GG-WJVK], as the technical 
standard for web content and mobile app accessibility under title II of 
the ADA. As will be explained in more detail, the Department is 
proposing to require that public entities comply with the WCAG 2.1 
Level AA success criteria and conformance requirements. The applicable 
technical standard will be referred to hereinafter as ``WCAG 2.1.'' The 
applicable conformance level will be referred to hereinafter as ``Level 
AA.'' To the extent there are differences between WCAG 2.1 Level AA and 
the standards articulated in this rule, the standards articulated in 
this rule prevail. As noted below, WCAG 2.1 Level AA is not restated in 
full in this rule but is instead incorporated by reference.
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    \8\ Copyright (copyright) 2017 2018 W3C[supreg] (MIT, ERCIM, 
Keio, Beihang). This document includes material copied from or 
derived from https://www.w3.org/TR/WCAG21/ [https://perma.cc/H2GG-WJVK].
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    In recognition of the challenges that small public entities may 
face with respect to resources for implementing the proposed new 
requirements, the Department is proposing to stagger the compliance 
dates for public entities according to their total population. Total 
population refers to the size of the public entity's population 
according to the U.S. Census Bureau or, if the public entity does not 
have a specific population but belongs to another jurisdiction that 
does, the population of the jurisdiction to which the entity belongs. 
This NPRM proposes that a public entity with a total population of 
50,000 or more must ensure that web content and mobile apps it makes 
available to members of the public or uses to offer services, programs, 
or activities to members of the public, comply with WCAG 2.1 Level AA 
success criteria and conformance requirements two years after the 
publication of the final rule. A public entity with a total population 
of less than 50,000 would have three years to comply with these 
requirements. In addition, all special district governments would have 
three years to comply with these requirements.

[[Page 51950]]



             Table 1--Compliance Dates for WCAG 2.1 Level AA
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           Public entity size                    Compliance date
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Fewer than 50,000 persons/Special        Three years after publication
 district governments.                    of the final rule.
50,000 or more persons.................  Two years after publication of
                                          the final rule.
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    In addition, the Department is proposing to create an exception 
from the web accessibility requirements for certain categories of web 
content, which are described in detail in the section-by-section 
analysis.
    If web content is excepted, that means that the public entity does 
not need to make the content conform to WCAG 2.1 Level AA, unless there 
is an applicable limitation to the exception. The proposed limitations 
describe situations in which the otherwise excepted content must 
conform to WCAG 2.1 Level AA.
    As will be explained more fully, the Department is proposing seven 
exceptions with some limitations: (1) archived web content; (2) 
preexisting conventional electronic documents; (3) web content posted 
by third parties on a public entity's website; (4) third-party web 
content linked from a public entity's website; (5) course content on a 
public entity's password-protected or otherwise secured website for 
admitted students enrolled in a specific course offered by a public 
postsecondary institution; (6) class or course content on a public 
entity's password-protected or otherwise secured website for students 
enrolled, or parents of students enrolled, in a specific class or 
course at a public elementary or secondary school; and (7) conventional 
electronic documents that are about a specific individual, their 
property, or their account and that are password-protected or otherwise 
secured. The proposed exception for preexisting conventional electronic 
documents would also apply to conventional electronic documents 
available through mobile apps. As discussed further, if one of these 
exceptions applies without a limitation, then the public entity's 
excepted web content or mobile app would not need to comply with the 
proposed rule's accessibility requirements. However, each exception is 
limited in some way. If a limitation applies to an exception, then the 
public entity would need to ensure that its web content or mobile app 
complies with the proposed rule's accessibility requirements. The 
Department is proposing these exceptions--with certain limitations 
explained in detail later in this NPRM--because it believes that 
requiring public entities to make the particular content described in 
these categories accessible under all circumstances could be too 
burdensome at this time. In addition, requiring accessibility in all 
circumstances may divert important resources from providing access to 
key web content and mobile apps that public entities make available or 
use to offer services, programs, and activities. However, upon request 
from a specific individual, a public entity may have to provide web 
content or content in mobile apps to that individual in an accessible 
format to comply with the entity's existing obligations under other 
regulatory provisions implementing title II of the ADA, even if an 
exception applies without a limitation. For example, archived town 
meeting minutes from 2011 might be excepted from the requirement to 
comply with WCAG 2.1 Level AA. But, if a person with low vision, for 
example, requests an accessible version, then the town would still need 
to consider the person's request under its existing effective 
communication obligations in 28 CFR 35.160. The way that the town does 
this could vary based on the facts. For example, in some circumstances, 
providing a large print version of the minutes might satisfy the town's 
obligations, and in other circumstances it might need to provide an 
electronic version that partially complies with WCAG.
    The NPRM also proposes to make clear the limited circumstances in 
which ``conforming alternate versions'' of web pages, as defined in 
WCAG 2.1, can be used as a means of achieving accessibility. A 
conforming alternate version is a separate web page that is accessible, 
up to date, contains the same information and functionality as the 
inaccessible web page, and can be reached via a conforming page or an 
accessibility-supported mechanism. The Department understands that, in 
practice, it can be difficult to maintain conforming alternate versions 
because it is often challenging to keep two different versions of web 
content up to date. For this reason and others discussed later, 
conforming alternate versions are permissible only when it is not 
possible to make websites and web content directly accessible due to 
technical or legal limitations. Also, the NPRM would allow a public 
entity flexibility to show that its use of other designs, methods, or 
techniques as alternatives to WCAG 2.1 Level AA provides substantially 
equivalent or greater accessibility and usability. Additionally, the 
NPRM proposes that compliance with WCAG 2.1 Level AA is not required 
under the ADA to the extent that such compliance imposes undue 
financial and administrative burdens or results in a fundamental 
alteration of the services, programs, or activities of the public 
entity. More information about these proposals is provided in the 
section-by-section analysis.

D. Summary of Costs and Benefits

    To estimate the potential costs and benefits associated with this 
proposed rule, the Department conducted a Preliminary Regulatory Impact 
Analysis (``PRIA''). The purpose of the PRIA is to inform the public 
about how the proposed rule creates costs and benefits to society, 
taking into account both quantitative and qualitative costs and 
benefits. A more detailed summary of the PRIA is included in section VI 
of this preamble. The results of the Department's economic analysis 
indicate that monetized benefits of this rulemaking far exceed the 
costs. Further, the proposed rule will benefit individuals with 
disabilities uniquely and in their day-to-day lives in many ways that 
could not be quantified due to unavailable data. Table 2 below shows a 
high-level overview of the Department's monetized findings. Non-
monetized costs and benefits are discussed in the text.
    The Department calculated a variety of estimated costs, including: 
(1) one-time costs for familiarization with the requirements of the 
rule; (2) initial testing and remediation costs for government 
websites; (3) operating and maintenance (``O&M'') costs for government 
websites; (4) initial testing and remediation costs for mobile apps; 
(5) O&M costs for mobile apps; (6) school course remediation costs; and 
(7) initial testing and remediation costs for third-party websites that 
provide services on behalf of State and local governments. School 
course content, despite primarily being hosted on websites, is 
estimated as a separate remediation cost due to its unique structure 
and content, and because it is primarily on password-protected pages

[[Page 51951]]

and therefore unobservable to the Department. The remediation costs 
include both time and software components. Annualized costs are 
calculated over a 10-year period that includes both the three-year 
implementation period and the seven years post-implementation. 
Annualized costs over this 10-year period are estimated at $2.8 billion 
assuming a 3 percent discount rate or $2.9 billion assuming a 7 percent 
discount rate. This includes $15.8 billion in implementation costs 
accruing during the first three years (the implementation period), 
undiscounted, and $1.8 billion in annual O&M costs during the next 
seven years. All values are presented in 2021 dollars as 2022 data were 
not yet available.
    To consider the relative magnitude of the estimated costs of this 
proposed regulation, the Department compares the costs to revenues for 
public entities. Because the costs for each government entity type are 
estimated to be well below 1 percent of revenues, the Department does 
not believe the rule will be unduly burdensome or costly for public 
entities.\9\
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    \9\ As a point of reference, the United States Small Business 
Administration advises agencies that a potential indicator that the 
impact of a proposed regulation may be ``significant'' is whether 
the costs exceed 1 percent of the gross revenues of the entities in 
a particular sector, although the threshold may vary based on the 
particular types of entities at issue. The Department estimates that 
the costs of this rulemaking for each government entity type are far 
less than 1 percent of revenues. See Small Bus. Admin., A Guide for 
Government Agencies: How to Comply with the Regulatory Flexibility 
Act 19 (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH]; see also EPA, EPA's Action Development Process: Final 
Guidance for EPA Rulewriters: Regulatory Flexibility Act 24 (Nov. 
2006), https://www.epa.gov/sites/default/files/2015-06/documents/guidance-regflexact.pdf [https://perma.cc/9XFZ-3EVA] (providing an 
illustrative example of a hypothetical analysis under the RFA in 
which, for certain small entities, economic impact of ``[l]ess than 
1% for all affected small entities'' may be ``presumed'' to have 
``no significant economic impact on a substantial number of small 
entities'').
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    Benefits of this rulemaking will accrue particularly to individuals 
with certain types of disabilities. For purposes of the PRIA, the 
Department has determined that WCAG 2.1 Level AA primarily benefits 
individuals with vision, hearing, cognitive, and manual dexterity 
disabilities because the WCAG 2.1 standards are intended to address 
barriers that often impede access for people with these disability 
types.\10\ The Department quantified benefits to individuals with these 
four types of disabilities. Individuals with other types of 
disabilities may also benefit but, due to data limitations and 
uncertainties, benefits to these individuals are not directly 
quantified. Additionally, because accessibly designed web content and 
mobile apps are easier for everyone to use, benefits will also accrue 
to people without relevant disabilities \11\ who access State and local 
government entities' web content and mobile apps.
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    \10\ See W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020), 
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK]; W3C[supreg], Web Content Accessibility 
Guidelines 2.1 (June 5, 2018), https://www.w3.org/TR/WCAG21/ 
[https://perma.cc/29PG-YX3N].
    \11\ Throughout this proposed rule, the Department uses the 
phrase ``individuals without relevant disabilities'' to refer to 
individuals without vision, hearing, cognitive, or manual dexterity 
disabilities. Individuals without these disabilities may have other 
types of disabilities, or they may be individuals without 
disabilities, but to simplify the discussion in this proposed rule, 
``individuals without relevant disabilities'' will be used to mean 
individuals without one of these four types of disabilities.
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    The Department monetized benefits for people with vision, hearing, 
cognitive, and manual dexterity disabilities as well as people without 
these disabilities. These benefits included time savings for current 
users of State and local government entities' web content; time savings 
for those who switch from other modes of accessing State and local 
government entities' services, programs, or activities (e.g., phone or 
in person) to web access or begin to participate in these services, 
programs, or activities for the first time; time savings for current 
mobile app users; time savings for students and their parents; and 
earnings from additional educational attainment. Annual benefits, 
beginning once the rule is fully implemented, total $11.4 billion. 
Benefits annualized over a 10-year period that includes both three 
years of implementation and seven years post-implementation total $9.3 
billion per year, assuming a 3 percent discount rate, and $8.9 billion 
per year, assuming a 7 percent discount rate.
    There are many additional benefits that have not been monetized due 
to a lack of data availability. Benefits that cannot be monetized are 
discussed qualitatively in the PRIA. These qualitative benefits are 
central to this proposed rule's potential impact. They include concepts 
at the core of any civil rights law, such as equality and dignity. 
Other benefits to individuals include increased independence, increased 
flexibility, increased privacy, reduced frustration, decreased reliance 
on companions, and increased program participation. This proposed rule 
will also benefit governments through increased certainty about what 
constitutes accessible web content, potential reduction in litigation, 
and a larger labor market pool.
    Comparing annualized costs and benefits, the monetized benefits to 
society of this rulemaking far outweigh the costs. Net annualized 
benefits over the first 10 years after publication of this proposed 
rule total $6.5 billion per year using a 3 percent discount rate and 
$6.0 billion per year using a 7 percent discount rate (Table 2). 
Additionally, beyond this 10-year period, benefits are likely to 
continue to accrue at a greater rate than costs because many of the 
costs are upfront costs and benefits tend to have a delay before 
beginning to accrue. Moreover, the Department expects the net 
annualized benefit estimate is an underestimate, as it does not include 
the significant qualitative benefits that the Department was unable to 
monetize. For a complete comparison of costs and benefits, please see 
Section 1.2, Summary of Benefits and Costs, in the corresponding PRIA.

  Table 2--10-Year Average Annualized Comparison of Costs and Benefits
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                                            3% Discount     7% Discount
              Benefit type                     rate            rate
------------------------------------------------------------------------
Average annualized costs (millions).....        $2,846.6        $2,947.9
Average annualized benefits (millions)..         9,316.3         8,937.2
Net benefits (millions).................         6,469.7         5,989.3
Cost-to-benefit ratio...................             0.3             0.3
------------------------------------------------------------------------


[[Page 51952]]

II. Relationship to Other Laws

    Title II of the ADA and the Department of Justice's implementing 
regulation state that except as otherwise provided, the ADA shall not 
be construed to apply a lesser standard than title V of the 
Rehabilitation Act of 1973 (29 U.S.C. 791) or its accompanying 
regulations.\12\ They further state that the ADA does not invalidate or 
limit the remedies, rights, and procedures of any other laws that 
provide greater or equal protection for people with disabilities or 
people associated with them.\13\
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    \12\ 42 U.S.C. 12201(a); 28 CFR 35.103(a).
    \13\ 42 U.S.C. 12201(b); 28 CFR 35.103(b).
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    The Department recognizes that entities subject to title II of the 
ADA may also be subject to other statutes that prohibit discrimination 
on the basis of disability. Compliance with the Department's title II 
regulation does not necessarily ensure compliance with other statutes 
and their implementing regulations. Title II entities are also 
obligated to fulfill the ADA's title I requirements in their capacity 
as employers, and those requirements are distinct from the obligations 
under this rule.
    Education is another context in which entities have obligations to 
comply with other laws imposing affirmative obligations regarding 
individuals with disabilities. The Department of Education's 
regulations implementing the Individuals with Disabilities Education 
Act (``IDEA'') and section 504 of the Rehabilitation Act provide 
longstanding, affirmative obligations on covered schools to identify 
children with disabilities, and both require covered schools to provide 
a Free Appropriate Public Education (``FAPE'').\14\ This rulemaking 
would build on, and would not supplant, those preexisting requirements. 
A public entity must continue to meet all of its existing obligations 
under other laws. A discussion of how this rule adds to the existing 
educational legal environment is included under the preamble discussion 
of the relevant educational exception.
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    \14\ See 20 U.S.C. 1412; 34 CFR 104.32-104.33.
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III. Background

A. ADA Statutory and Regulatory History

    The ADA broadly protects the rights of individuals with 
disabilities in important areas of everyday life, such as in 
employment, access to State and local government entities' services, 
places of public accommodation, and transportation. The ADA also 
requires newly designed and constructed or altered State and local 
government entities' facilities, public accommodations, and commercial 
facilities to be readily accessible to and usable by individuals with 
disabilities.\15\ Section 204(a) of title II and section 306(b) of 
title III direct the Attorney General to promulgate regulations to 
carry out the provisions of titles II and III, other than certain 
provisions dealing specifically with transportation.\16\ Title II, part 
A, applies to State and local government entities and protects 
qualified individuals with disabilities from discrimination on the 
basis of disability in services, programs, and activities provided by 
State and local government entities.
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    \15\ 42 U.S.C. 12101 et seq.
    \16\ 42 U.S.C. 12134, 12186(b).
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    On July 26, 1991, the Department issued its final rules 
implementing title II and title III, which are codified at 28 CFR part 
35 (title II) and part 36 (title III), and include the ADA Standards 
for Accessible Design (``ADA Standards'').\17\ At that time, the web 
was in its infancy and was thus not used by State and local government 
entities as a means of providing services or information to the public. 
Thus, web content was not mentioned in the Department's title II 
regulation. Only a few years later, however, as web content of general 
interest became available, public entities began using web content to 
provide information to the public.
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    \17\ Title III prohibits discrimination on the basis of 
disability in the full and equal enjoyment of places of public 
accommodation (privately operated entities whose operations affect 
commerce and fall within at least one of 12 categories listed in the 
ADA, such as restaurants, movie theaters, schools, day care 
facilities, recreational facilities, and doctors' offices) and 
requires newly constructed or altered places of public 
accommodation--as well as commercial facilities (facilities intended 
for nonresidential use by a private entity and whose operations 
affect commerce, such as factories, warehouses, or office 
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-89.
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B. History of the Department's Title II Web-Related Interpretation and 
Guidance

    The Department first articulated its interpretation that the ADA 
applies to websites of covered entities in 1996.\18\ Under title II, 
this includes ensuring that individuals with disabilities are not, by 
reason of such disability, excluded from participation in or denied the 
benefits of the services, programs, and activities offered by State and 
local government entities, including those offered via the web, such as 
education services, voting, town meetings, vaccine registration, tax 
filing systems, and applications for benefits.\19\ The Department has 
since reiterated this interpretation in a variety of online 
contexts.\20\ Title II of the ADA also applies when public entities use 
mobile apps to offer their services, programs, and activities.
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    \18\ See Letter for Tom Harkin, U.S. Senator, from Deval L. 
Patrick, Assistant Attorney General, Civil Rights Division, 
Department of Justice (Sept. 9, 1996), https://www.justice.gov/crt/foia/file/666366/download [https://perma.cc/56ZB-WTHA].
    \19\ See 42 U.S.C. 12132.
    \20\ See U.S. Dep't of Just., Guidance on Web Accessibility and 
the ADA, ADA.gov (Mar. 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/WH9E-VTCY]; Settlement Agreement Between 
the United States of America and the Champaign-Urbana Mass Transit 
District (Dec. 14, 2021), https://www.ada.gov/champaign-urbana_sa.pdf [https://perma.cc/VZU2-E6FZ]; Consent Decree, United 
States v. The Regents of the Univ. of Cal. (Nov. 20, 2022), https://www.justice.gov/opa/press-release/file/1553291/download [https://perma.cc/9AMQ-GPP3]; Consent Decree, Dudley v. Miami Univ. (Oct. 17, 
2016), https://www.ada.gov/miami_university_cd.html [https://perma.cc/T3FX-G7RZ]; Settlement Agreement Between the United States 
of America and the City and County of Denver, Colorado Under the 
Americans with Disabilities Act (Jan. 8, 2018), https://www.ada.gov/denver_pca/denver_sa.html [https://perma.cc/U7VE-MBSG]; Settlement 
Agreement Between the United States of America and Nueces County, 
Texas Under the Americans with Disabilities Act (effective Jan. 30, 
2015), https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html 
[https://perma.cc/TX66-WQY7]; Settlement Agreement Between the 
United States of America, Louisiana Tech University, and the Board 
of Supervisors for the University of Louisiana System Under the 
Americans with Disabilities Act (July 22, 2013), https://www.ada.gov/louisiana-tech.htm [https://perma.cc/78ES-4FQR].
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    Many public entities now regularly offer many of their services, 
programs, and activities through web content and mobile apps, and the 
Department describes in detail the ways in which public entities have 
been doing so later in this section. To ensure equal access to such 
services, programs, and activities, the Department is undertaking this 
rulemaking to provide public entities with more specific information 
about how to meet their nondiscrimination obligations in the web and 
mobile app contexts.
    As with many other statutes, the ADA's requirements are broad and 
its implementing regulations do not include specific standards for 
every obligation under the statute. This has been the case in the 
context of web accessibility under the ADA. Because the Department has 
not adopted specific technical requirements for web content through 
rulemaking, public entities have not had specific direction on how to 
comply with the ADA's general requirements of nondiscrimination and 
effective communication. However, public entities still must comply 
with these ADA obligations with respect to their web content and mobile 
apps, including before this rule's effective date.

[[Page 51953]]

    The Department has consistently heard from members of the public--
especially public entities and people with disabilities--that there is 
a need for additional information on how to specifically comply with 
the ADA in this context. In June 2003, the Department published a 
document titled ``Accessibility of State and Local Government websites 
to People with Disabilities'' (https://www.ada.gov/websites2.htm 
[https://perma.cc/Z7JT-USAN]), which provides tips for State and local 
government entities on ways they can make their websites accessible so 
that they can better ensure that people with disabilities have equal 
access to the services, programs, and activities that are provided 
through those websites.
    In March 2022, the Department released additional guidance 
addressing web accessibility for people with disabilities.\21\ This 
technical assistance expanded on the Department's previous ADA guidance 
by providing practical tips and resources for making websites 
accessible for both title II and title III entities. It also reiterated 
the Department's longstanding interpretation that the ADA applies to 
all services, programs, and activities of covered entities, including 
when they are offered via the web.
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    \21\ U.S. Dep't of Just., Guidance on Web Accessibility and the 
ADA, ADA.gov (Mar. 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/874V-JK5Z].
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    The Department's 2003 guidance on State and local government 
entities' websites noted that ``an agency with an inaccessible website 
may also meet its legal obligations by providing an alternative 
accessible way for citizens to use the programs or services, such as a 
staffed telephone information line,'' while also acknowledging that 
this is unlikely to provide an equal degree of access.\22\ The 
Department's March 2022 guidance did not include 24/7 staffed telephone 
lines as an alternative to accessible websites. Given the way the 
modern web has developed, the Department no longer believes 24/7 
staffed telephone lines can realistically provide equal access to 
people with disabilities. Websites--and often mobile apps--allow the 
public to get information or request a service within just a few 
minutes. Getting the same information or requesting the same service 
using a staffed telephone line takes more steps and may result in wait 
times or difficulty getting the information. For example, State and 
local government entities' websites may allow members of the public to 
quickly review large quantities of information, like information about 
how to register for government services, information on pending 
government ordinances, or instructions about how to apply for a 
government benefit. Members of the public can then use government 
websites to promptly act on that information by, for example, 
registering for programs or activities, submitting comments on pending 
government ordinances, or filling out an application for a government 
benefit. A member of the public could not realistically accomplish 
these tasks efficiently over the phone. Additionally, a person with a 
disability who cannot use an inaccessible online tax form might have to 
call to request assistance with filling out either online or mailed 
forms, which could involve significant delay, added costs, and may 
require providing private information such as banking details or Social 
Security numbers over the phone without the benefit of certain security 
features available for online transactions. Finally, calling a staffed 
telephone line lacks the privacy of looking up information on a 
website. A caller needing public safety resources, for example, might 
be unable to access a private location to ask for help on the phone, 
whereas an accessible website would allow users to privately locate 
resources. For these reasons, the Department does not now believe that 
a staffed telephone line--even if it is offered 24/7--provides equal 
access in the way that an accessible website can.
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    \22\ U.S. Dep't of Just., Accessibility of State and Local 
Government websites to People with Disabilities, ADA.gov (June 
2003), https://www.ada.gov/websites2.htm [https://perma.cc/Z7JT-USAN].
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C. The Department's Previous Web Accessibility-Related Rulemaking 
Efforts

    The Department has previously pursued rulemaking efforts regarding 
website accessibility under title II. On July 26, 2010, the 
Department's advance notice of proposed rulemaking (``ANPRM'') titled 
``Accessibility of Web Information and Services of State and Local 
Government Entities and Public Accommodations'' was published in the 
Federal Register.\23\ The ANPRM announced that the Department was 
considering revising the regulations implementing titles II and III of 
the ADA to establish specific requirements for State and local 
government entities and public accommodations to make their websites 
accessible to individuals with disabilities. In the ANPRM, the 
Department sought information regarding what standards, if any, it 
should adopt for web accessibility; whether the Department should adopt 
coverage limitations for certain entities, like small businesses; and 
what resources and services are available to make existing websites 
accessible to individuals with disabilities. The Department also 
requested comments on the costs of making websites accessible; whether 
there are effective and reasonable alternatives to make websites 
accessible that the Department should consider permitting; and when any 
web accessibility requirements adopted by the Department should become 
effective. The Department received approximately 400 public comments 
addressing issues germane to both titles II and III in response to this 
ANPRM. The Department later announced that it decided to pursue 
separate rulemakings addressing website accessibility under titles II 
and III.\24\
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    \23\ 75 FR 43460 (July 26, 2010).
    \24\ See Department of Justice--Fall 2015 Statement of 
Regulatory Priorities, http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html [https://perma.cc/YF2L-FTSK].
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    On May 9, 2016, the Department followed up on its 2010 ANPRM with a 
detailed Supplemental ANPRM that was published in the Federal Register. 
The Supplemental ANPRM solicited public comment about a variety of 
issues regarding establishing technical standards for web access under 
title II.\25\ The Department received more than 200 public comments in 
response to the title II Supplemental ANPRM.
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    \25\ Nondiscrimination on the Basis of Disability; Accessibility 
of Web Information and Services of State and Local Government 
Entities, 81 FR 28658 (May 9, 2016).
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    On December 26, 2017, the Department published a Notice in the 
Federal Register withdrawing four rulemaking actions, including the 
titles II and III web rulemakings, stating that it was evaluating 
whether promulgating specific web accessibility standards through 
regulations was necessary and appropriate to ensure compliance with the 
ADA.\26\ The Department has also previously stated that it would 
continue to review its entire regulatory landscape and associated 
agenda, pursuant to the regulatory reform provisions of Executive Order 
13771 and Executive Order 13777.\27\ Those Executive Orders

[[Page 51954]]

were revoked by Executive Order 13992 in early 2021.
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    \26\ Nondiscrimination on the Basis of Disability; Notice of 
Withdrawal of Four Previously Announced Rulemaking Actions, 82 FR 
60932 (Dec. 26, 2017).
    \27\ See Letter for Charles E. Grassley, U.S. Senator, from 
Stephen E. Boyd, Assistant Attorney General, Civil Rights Division, 
Department of Justice (Oct. 11, 2018), https://www.grassley.senate.gov/imo/media/doc/2018-10-11%20DOJ%20to%20Grassley%20-%20ADA%20website%20Accessibility.pdf 
[https://perma.cc/8JHS-FK2Q].
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    The Department is now reengaging in efforts to promulgate 
regulations establishing technical standards for web accessibility for 
public entities. Accordingly, the Department has begun this distinct 
rulemaking effort to address web access under title II of the ADA.

D. Need for Department Action

1. Use of Web Content by Title II Entities
    Public entities regularly use the web to disseminate information 
and offer programs and services to the public. Public entities use a 
variety of websites to streamline their programs and services. Members 
of the public routinely make online service requests--from requesting 
streetlight repairs and bulk trash pickups to reporting broken parking 
meters--and can often check the status of a service request online. 
Public entities' websites also offer the opportunity for people to 
renew their vehicle registrations, submit complaints, purchase event 
permits, and pay traffic fines and property taxes, making some of these 
otherwise time-consuming tasks relatively easy and expanding their 
availability beyond regular business hours. Moreover, applications for 
many Federal benefits, such as unemployment benefits and food stamps, 
are available through State websites.
    People also rely on public entities' websites to engage in civic 
participation, particularly when more individuals prefer or need to 
stay at home in light of changes to preferences and behavior resulting 
from the COVID-19 pandemic. The Department believes that although many 
public health measures addressing the COVID-19 pandemic are no longer 
in place, there have been durable changes to State and local government 
entities' operations and public preferences that necessitate greater 
access to online services, programs, and activities.
    People can now frequently watch local public hearings, read minutes 
from community meetings, or take part in live chats with government 
officials on the websites of State and local government entities. Many 
public entities allow voters to begin the voter registration process 
and obtain candidate information on their websites. Individuals 
interested in running for local public offices can often find pertinent 
information concerning candidate qualifications and filing requirements 
on these websites as well. The websites of public entities also include 
information about a range of issues of concern to the community and 
about how people can get involved in community efforts to improve the 
administration of government services.
    Many public entities use online resources to promote access to 
public benefits. People can use websites of public entities to file for 
unemployment or other benefits and find and apply for job openings. 
Access to these online functions became even more crucial during the 
COVID-19 pandemic, when millions of Americans lost their jobs and 
government services were often not available in person.\28\ As noted 
previously, the Department believes that although many of these 
services have become available in person again as COVID-19 public 
health measures have ended, State and local government entities will 
continue to offer these services online due to durable shifts in 
preferences and expectations resulting from the pandemic. For example, 
through the websites of State and local government entities, business 
owners can register their businesses, apply for occupational and 
professional licenses, bid on contracts to provide products and 
services to public entities, and obtain information about laws and 
regulations with which they must comply. The websites of many State and 
local government entities also allow members of the public to research 
and verify business licenses online and report unsavory business 
practices. Access to these online services can be particularly 
important for any services that have not resumed in-person 
availability.
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    \28\ See Rakesh Kochhar & Jesse Bennet, U.S. Labor Market Inches 
Back from the Covid-19 Shock, but Recovery is Far from Complete, Pew 
Research Center (Apr. 14, 2021), https://www.pewresearch.org/fact-tank/2021/04/14/u-s-labor-market-inches-back-from-the-covid-19-shock-but-recovery-is-far-from-complete/ [https://perma.cc/29E5-LMXM].
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    Public entities are also using websites as an integral part of 
public education. Public schools at all levels, including public 
colleges and universities, offer programs, reading material, and 
classroom instruction through websites. Access to these sites became 
even more critical during the COVID-19 pandemic, when, at one point, 
all U.S. public school buildings were closed.\29\ Web access is 
essential, and, during part of the COVID-19 pandemic, it was often the 
only way for State and local government entities to provide students 
with educational services, programs, and activities like public school 
classes and exams. As noted previously, the Department believes durable 
changes to preferences and behavior due to the COVID-19 pandemic will 
result in many educational activities continuing to be offered online. 
Most public colleges and universities rely heavily on websites and 
other online technologies in the application process for prospective 
students; for housing eligibility and on-campus living assignments; 
course registration, assignments, and discussion groups; and for a wide 
variety of administrative and logistical functions in which students 
and staff must participate. Similarly, in many public elementary and 
secondary school settings, communications via the web are how teachers 
and administrators communicate grades, assignments, and administrative 
matters to parents and students.
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    \29\ See The Coronavirus Spring: The Historic Closing of U.S. 
Schools (A Timeline), Education Week (July 1, 2020), https://www.edweek.org/leadership/the-coronavirus-spring-the-historic-closing-of-u-s-schools-a-timeline/2020/07 [https://perma.cc/47E8-FJ3U].
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    As noted previously, access to the web has become increasingly 
important as a result of the COVID-19 pandemic, which shut down 
workplaces, schools, and in-person services, and has forced millions of 
Americans to stay home for extended periods.\30\ In response, the 
American public has turned to the web for work, activities, and 
learning.\31\ In fact, a study conducted in April 2021 found that 90 
percent of adults say the web ``has been at least important to them 
personally during the pandemic.'' \32\ Fifty-eight percent say it has 
been essential.\33\ Web access can be particularly important for those 
who live in rural communities and need to travel long distances to 
reach certain physical locations like schools and libraries.\34\
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    \30\ See Colleen McClain et al., The internet and the Pandemic, 
Pew Research Center (Sep. 1, 2021), https://www.pewresearch.org/internet/2021/09/01/the-internet-and-the-pandemic/ [https://perma.cc/4WVA-FQ9P].
    \31\ See Kerry Dobransky & Eszter Hargittai, Piercing the 
Pandemic Social Bubble: Disability and Social Media Use About COVID-
19, American Behavioral Scientist (Mar. 29, 2021), https://doi.org/10.1177/00027642211003146. A Perma archive link was unavailable for 
this citation.
    \32\ McClain et al., The internet and the Pandemic, at 3.
    \33\ Id.
    \34\ John Lai & Nicole O. Widmar, Revisiting the Digital Divide 
in the COVID-19 Era, 43 Applied Econ. Perspectives and Pol'y 458 
(2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7675734/ 
[https://perma.cc/Y75D-XWCT].
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    Currently, a large number of Americans interact with public 
entities remotely and many State and local government entities provide 
vital information and services for the general public online, including 
information on recreational and educational programs, school closings, 
State travel restrictions,

[[Page 51955]]

food assistance and employment, guidance for health care providers, and 
workplace safety.\35\ Access to such web-based information and 
services, while important for everyone during the pandemic, took on 
heightened importance for people with disabilities, many of whom face a 
greater risk of COVID-19 exposure, serious illness, and death.\36\
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    \35\ See, e.g., Coronavirus Disease 2019 (COVID-19) Outbreak, 
Maryland.gov, https://coronavirus.maryland.gov/ [https://perma.cc/NAW4-6KP4]; Covid19.CA, California.gov, https://covid19.ca.gov/ 
[https://perma.cc/BL9C-WTJP]; Washington State Coronavirus Response, 
Washington State, https://coronavirus.wa.gov/ [https://perma.cc/KLA4-KY53].
    \36\ See Hannah Eichner, The Time is Now to Vaccinate High-Risk 
People with Disabilities, National Health Law Program (Mar. 15, 
2021), https://healthlaw.org/the-time-is-now-to-vaccinate-high-risk-people-with-disabilities/ [https://perma.cc/8CM8-9UC4].
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    According to the CDC, some people with disabilities ``might be more 
likely to get infected or have severe illness because of underlying 
medical conditions, congregate living settings, or systemic health and 
social inequities. All people with serious underlying chronic medical 
conditions like chronic lung disease, a serious heart condition, or a 
weakened immune system seem to be more likely to get severely ill from 
COVID-19.'' \37\ A report by the National Council on Disability 
indicated that COVID-19 has a disproportionately negative impact on 
people with disabilities' access to healthcare, education, and 
employment, among other areas, making remote access to these 
opportunities via the web even more important.\38\
---------------------------------------------------------------------------

    \37\ See People with Disabilities, Centers for Disease Control 
and Prevention, https://www.cdc.gov/ncbddd/humandevelopment/covid-19/people-with-disabilities.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fneed-extra-precautions%2Fpeople-with-disabilities.html [https://perma.cc/WZ7U-2EQE].
    \38\ See 2021 Progress Report: The Impact of COVID-19 on People 
with Disabilities, National Council on Disability (Oct. 29, 2021), 
https://ncd.gov/progressreport/2021/2021-progress-report [https://perma.cc/96L7-XMKZ].
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    Individuals with disabilities can often be denied equal access to 
many services, programs, and activities because many public entities' 
web content is not fully accessible. Thus, there is a digital divide 
between the ability of people with certain types of disabilities and 
people without those disabilities to access the services, programs, and 
activities of their State and local government entities.

2. Use of Mobile Applications by Title II Entities

    The Department is also proposing that public entities make their 
mobile apps accessible under proposed Sec.  35.200 because public 
entities also use mobile apps to offer their services, programs, and 
activities to the public. As discussed, a mobile app is a software 
application that runs on mobile devices. Mobile apps are distinct from 
a website that can be accessed by a mobile device because, in part, 
mobile apps are not directly accessible on the web--they are often 
downloaded on a mobile device.\39\ A mobile website, on the other hand, 
is a website that is designed so that it can be accessed by a mobile 
device similarly to how it can be accessed on a desktop computer.\40\
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    \39\ Mona Bushnell, What Is the Difference Between an App and a 
Mobile website?, Business News Daily (updated Aug. 2, 2022), https://www.businessnewsdaily.com/6783-mobile-website-vs-mobile-app.html 
[https://perma.cc/9LKC-GUEM].
    \40\ Id.
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    Public entities use mobile apps to provide services and reach the 
public in various ways. For example, during the COVID-19 pandemic, when 
many State and local government entities' offices were closed, public 
entities used mobile apps to inform people about benefits and 
resources, to provide updates about the pandemic, and as a means to 
show proof of vaccination status, among other things.\41\ Also, using a 
public entity's mobile app, residents are able to submit nonemergency 
service requests, such as cleaning graffiti or repairing a street light 
outage, and track the status of these requests. Public entities' apps 
take advantage of common features of mobile devices, such as camera and 
Global Positioning System (``GPS'') functions, so individuals can 
provide public entities with a precise description and location of 
issues.\42\ These may include issues such as potholes, physical 
barriers created by illegal dumping or parking, or curb ramps that need 
to be fixed to ensure accessibility for some people with 
disabilities.\43\ Some public transit authorities have transit apps 
that use a mobile device's GPS function to provide bus riders with the 
location of nearby bus stops and real-time arrival and departure 
times.\44\ In addition, public entities are also using mobile apps to 
assist with emergency planning for natural disasters like wildfires; 
provide information about local schools; and promote tourism, civic 
culture, and community initiatives.\45\
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    \41\ See, e.g., COVID-19 Virginia Resources, Virginia Department 
of Social Services, https://apps.apple.com/us/app/covid-19-virginia-resources/id1507112717 [https://perma.cc/LP6N-WC9K]; Chandra Steele, 
Does My State Have a COVID-19 Vaccine App, PC Mag (updated Feb. 10, 
2022), https://www.pcmag.com/how-to/does-my-state-have-a-covid-19-vaccine-app [https://perma.cc/H338-MCWC].
    \42\ See Using Mobile Apps in Government, IBM Ctr. for the Bus. 
of Gov't, at 11 (2015), https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf [https://perma.cc/248X-8A6C].
    \43\ Id. at 32.
    \44\ Id. at 31.
    \45\ Id. at 8.
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3. Barriers to Web and Mobile App Accessibility
    Millions of individuals in the United States have disabilities that 
can affect their use of the web and mobile apps. Many of these 
individuals use assistive technology to enable them to navigate 
websites or access information contained on those sites. For example, 
individuals who are unable to use their hands may use speech 
recognition software to navigate a website, while individuals who are 
blind may rely on a screen reader to convert the visual information on 
a website into speech. Many websites and mobile apps fail to 
incorporate or activate features that enable users with certain types 
of disabilities to access all of the information or elements on the 
website or app. For instance, individuals who are deaf may be unable to 
access information in web videos and other multimedia presentations 
that do not have captions. Individuals with low vision may be unable to 
read websites or mobile apps that do not allow text to be resized or do 
not provide enough contrast. Individuals with limited manual dexterity 
or vision disabilities who use assistive technology that enables them 
to interact with websites may be unable to access sites that do not 
support keyboard alternatives for mouse commands. These same 
individuals, along with individuals with cognitive and vision 
disabilities, often encounter difficulty using portions of websites 
that require timed responses from users but do not give users the 
opportunity to indicate that they need more time to respond.
    Individuals who are blind or have low vision often confront 
significant barriers to accessing websites and mobile apps. For 
example, a study from the University of Washington analyzed 
approximately 10,000 mobile apps and found that many are highly 
inaccessible to people with disabilities.\46\ The study found that 23 
percent of the mobile apps reviewed did not provide content description 
of images for most of their image-based buttons. As a result, the 
functionality of those buttons is not accessible for people who use 
screen

[[Page 51956]]

readers.\47\ Additionally, other mobile apps may be inaccessible if 
they do not allow text resizing, which can provide larger text for 
persons with vision disabilities.\48\
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    \46\ See Large-Scale Analysis Finds Many Mobile Apps Are 
Inaccessible, University of Washington CREATE, https://create.uw.edu/initiatives/large-scale-analysis-finds-many-mobile-apps-are-inaccessible/ [https://perma.cc/442K-SBCG].
    \47\ Id.
    \48\ See Chase DiBenedetto, 4 ways mobile apps could be a lot 
more accessible, Mashable (Dec. 9, 2021), https://mashable.com/article/mobile-apps-accessibility-fixes [https://perma.cc/WC6M-2EUL].
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    Furthermore, many websites provide information visually, without 
features that allow screen readers or other assistive technology to 
retrieve information on the website so it can be presented in an 
accessible manner. A common barrier to website accessibility is an 
image or photograph without corresponding text describing the image. A 
screen reader or similar assistive technology cannot ``read'' an image, 
leaving individuals who are blind with no way of independently knowing 
what information the image conveys (e.g., a simple icon or a detailed 
graph). Similarly, if websites lack navigational headings or links that 
facilitate navigation using a screen reader, it will be difficult or 
impossible for a someone using a screen reader to understand.\49\ 
Additionally, these websites may fail to present tables in a way that 
allows the information in the table to be interpreted by someone who is 
using a screen reader.\50\ Web-based forms, which are an essential part 
of accessing government services, are often inaccessible to individuals 
with disabilities who use screen readers. For example, field elements 
on forms, which are the empty boxes on forms that hold specific pieces 
of information, such as a last name or telephone number, may lack clear 
labels that can be read by assistive technology. Inaccessible form 
fields make it difficult for persons using screen readers to fill out 
online forms, pay fees and fines, submit donations, or otherwise 
participate in government services, programs, or activities using a 
website. Some governmental entities use inaccessible third-party 
websites to accept online payments, while others request public input 
through their own inaccessible websites. These barriers greatly impede 
the ability of individuals with disabilities to access the services, 
programs, and activities offered by public entities on the web. In many 
instances, removing certain website barriers is neither difficult nor 
especially costly. For example, the addition of invisible attributes 
known as alt text or alt tags to an image helps orient an individual 
using a screen reader and allows them to gain access to the information 
on the website. Alt text can be added to the coding of a website 
without any specialized equipment.\51\ Similarly, adding headings, 
which facilitate page navigation for those using screen readers, can 
often be done easily as well.\52\
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    \49\ See, e.g., W3C[supreg], Easy Checks--A First Review of Web 
Accessibility, (updated Jan. 31, 2023), https://www.w3.org/WAI/test-evaluate/preliminary/ [https://perma.cc/N4DZ-3ZB8].
    \50\ W3C[supreg], Tables Tutorial (updated Feb. 16, 2023), 
https://www.w3.org/WAI/tutorials/tables/ [https://perma.cc/FMG2-33C4].
    \51\ W3C[supreg], Images Tutorial (Feb. 08, 2022), https://www.w3.org/WAI/tutorials/images/ [https://perma.cc/G6TL-W7ZC].
    \52\ W3C[supreg], Providing Descriptive Headings (June 20, 
2023), https://www.w3.org/WAI/WCAG21/Techniques/general/G130.html 
[https://perma.cc/XWM5-LL6S].
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4. Voluntary Compliance With Technical Standards for Web Accessibility 
Has Been Insufficient in Providing Access
    The web has changed significantly and its use has become far more 
prevalent since Congress enacted the ADA in 1990 and the Department 
subsequently promulgated its first ADA regulations. Neither the ADA nor 
the Department's regulations specifically addressed public entities' 
use of websites and mobile apps to provide their services, programs, 
and activities. Congress contemplated, however, that the Department 
would apply title II, part A of the statute in a manner that evolved 
over time and it delegated authority to the Attorney General to 
promulgate regulations to carry out the ADA mandate under title II, 
part A.\53\ Consistent with this approach, the Department stated in the 
preamble to the original 1991 ADA regulations that the regulations 
should be interpreted to keep pace with developing technologies.\54\
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    \53\ See H.R. Rep. No. 101-485, pt. 2, at 108 (1990); 42 U.S.C. 
12134(a).
    \54\ 28 CFR part 36, app. B.
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    Since 1996, the Department has consistently taken the position that 
the ADA applies to the web content of State and local government 
entities. This interpretation comes from title II's application to 
``all services, programs, and activities provided or made available by 
public entities.'' \55\ The Department has affirmed the application of 
the statute to websites in multiple technical assistance documents over 
the past two decades.\56\ Further, the Department has repeatedly 
enforced this obligation and worked with State and local government 
entities to make their websites accessible, such as through Project 
Civic Access, an initiative to promote local governments' compliance 
with the ADA by eliminating physical and communication barriers 
impeding full participation by people with disabilities in community 
life.\57\
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    \55\ See 28 CFR 35.102.
    \56\ U.S. Dep't of Just., Accessibility of State and Local 
Government websites to People with Disabilities (2003), https://www.ada.gov/websites2.htm [https://perma.cc/Z7JT-USAN]; U.S. Dep't 
of Just., Chapter 5: website Accessibility Under Title II of the 
ADA, ADA Best Practices Tool Kit for State and Local Governments, 
Ada.gov (May 7, 2007), https://www.ada.gov/pcatoolkit/chap5toolkit.htm [https://perma.cc/VM3M-AHDJ]; U.S. Dep't of Just., 
Guidance on Web Accessibility and the ADA, Ada.gov (Mar. 18, 2022), 
https://https://www.ada.gov/resources/web-guidance/ [https://perma.cc/874V-JK5Z].
    \57\ U.S. Dep't of Just., Project Civic Access, Ada.gov, https://www.ada.gov/civicac.htm [https://perma.cc/B6WV-4HLQ].
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    A variety of voluntary standards and structures have been developed 
for the web through nonprofit organizations using multinational 
collaborative efforts. For example, domain names are issued and 
administered through the internet Corporation for Assigned Names and 
Numbers (``ICANN''), the internet Society (``ISOC'') publishes computer 
security policies and procedures for websites, and the World Wide Web 
Consortium (``W3C[supreg]'') develops a variety of technical standards 
and guidelines ranging from issues related to mobile devices and 
privacy to internationalization of technology. In the area of 
accessibility, the Web Accessibility Initiative (``WAI'') of the 
W3C[supreg] created the Web Content Accessibility Guidelines 
(``WCAG'').
    Many organizations, however, have indicated that voluntary 
compliance with these accessibility guidelines has not resulted in 
equal access for people with disabilities; accordingly, they have urged 
the Department to take regulatory action to ensure web and mobile app 
accessibility.\58\ The National Council on Disability, an independent 
Federal agency that advises the President, Congress, and other agencies 
about programs, policies, practices, and procedures affecting people 
with disabilities, has similarly emphasized the need for regulatory 
action on this issue.\59\ The Department has also heard

[[Page 51957]]

from State and local government entities and businesses asking for 
clarity on the ADA's requirements for websites through regulatory 
efforts.\60\
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    \58\ See, e.g., Letter for U.S. Dep't of Just. from American 
Council of the Blind et al. (Feb. 28, 2022), https://acb.org/accessibility-standards-joint-letter-2-28-22 [https://perma.cc/R77M-VPH9] (citing research showing persistent barriers in digital 
accessibility); Letter for U.S. Dep't of Just. from Consortium for 
Citizens with Disabilities (Mar. 23, 2022), https://www.c-c-d.org/fichiers/CCD-Web-Accessibility-Letter-to-DOJ-03232022.pdf [https://perma.cc/Q7YB-UNKV].
    \59\ National Council on Disability, The Need for Federal 
Legislation and Regulation Prohibiting Telecommunications and 
Information Services Discrimination (Dec. 19, 2006), https://www.ncd.gov/publications/2006/Dec282006 [https://perma.cc/7HW5-NF7P] 
(discussing how competitive market forces have not proven sufficient 
to provide individuals with disabilities access to 
telecommunications and information services); see also, e.g., 
National Council on Disability, National Disability Policy: A 
Progress Report (Oct. 7, 2016), https://ncd.gov/progressreport/2016/progress-report-october-2016 [https://perma.cc/J82G-6UU8] (urging 
the Department to adopt a web accessibility regulation).
    \60\ See, e.g., Letter for U.S. Dep't of Just. from Nat'l Ass'n 
of Realtors (Dec. 13, 2017), https://www.narfocus.com/billdatabase/clientfiles/172/3/3058.pdf [https://perma.cc/Z93F-K88P].
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    In light of the long regulatory history and the ADA's current 
general requirement to make all services, programs, and activities 
accessible, the Department expects that public entities have made 
strides to make their web content accessible since the 2010 ANPRM was 
published. However, despite the availability of voluntary web and 
mobile app accessibility standards; the Department's clearly stated 
position that all services, programs, and activities of public 
entities, including those available on websites, must be accessible; 
and case law supporting that position, individuals with disabilities 
continue to struggle to obtain access to the websites of public 
entities.\61\ As a result, the Department has brought enforcement 
actions to address web access, resulting in a significant number of 
settlement agreements with State and local government entities.\62\
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    \61\ See, e.g., Meyer v. Walthall, 528 F. Supp. 3d 928, 959 
(S.D. Ind. 2021) (``[T]he Court finds that Defendants' websites 
constitute services or activities within the purview of Title II and 
section 504, requiring Defendants to provide effective access to 
qualified individuals with a disability.''); Price v. City of Ocala, 
Fla., 375 F. Supp. 3d 1264, 1271 (M.D. Fla. 2019) (``Title II 
undoubtedly applies to websites . . . .''); Payan v. Los Angeles 
Cmty. Coll. Dist., No. 2:17-CV-01697-SVW-SK, 2019 WL 9047062, at *12 
(C.D. Cal. Apr. 23, 2019) (``[T]he ability to sign up for classes on 
the website and to view important enrollment information is itself a 
`service' warranting protection under Title II and section 504.''); 
Eason v. New York State Bd. of Elections, No. 16-CV-4292 (KBF), 2017 
WL 6514837, at *1 (S.D.N.Y. Dec. 20, 2017) (stating, in a case 
involving a State's website, that ``Section 504 of the 
Rehabilitation Act and Title II of the Americans with Disabilities 
Act . . . , long ago provided that the disabled are entitled to 
meaningful access to a public entity's programs and services. Just 
as buildings have architecture that can prevent meaningful access, 
so too can software.''); Hindel v. Husted, No. 2:15-CV-3061, 2017 WL 
432839, at *5 (S.D. Ohio Feb. 1, 2017) (``The Court finds that 
Plaintiffs have sufficiently established that Secretary Husted's 
website violates Title II of the ADA because it is not formatted in 
a way that is accessible to all individuals, especially blind 
individuals like the Individual Plaintiffs whose screen access 
software cannot be used on the website.'').
    \62\ See, e.g., Settlement Agreement Between the United States 
of America and the Champaign-Urbana Mass Transit District (Dec. 14, 
2021), https://www.ada.gov/champaign-urbana_sa.pdf [https://perma.cc/VZU2-E6FZ]; Consent Decree, United States v. The Regents of 
the Univ. of Cal. (Nov. 20, 2022), https://www.justice.gov/opa/press-release/file/1553291/download [https://perma.cc/9AMQ-GPP3]; 
Consent Decree, Dudley v. Miami Univ. (Oct. 13, 2016), https://www.ada.gov/miami_university_cd.html [https://perma.cc/T3FX-G7RZ]; 
Settlement Agreement Between the United States of America and the 
City and County of Denver, Colorado Under the Americans with 
Disabilities Act (Jan. 8, 2018), https://www.ada.gov/denver_pca/denver_sa.html [https://perma.cc/U7VE-MBSG]; Settlement Agreement 
Between the United States of America and Nueces County, Texas Under 
the Americans with Disabilities Act (effective Jan. 30, 2015), 
https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html [https://perma.cc/TX66-WQY7]; Settlement Agreement Between the United States 
of America, Louisiana Tech University, and the Board of Supervisors 
for the University of Louisiana System Under the Americans with 
Disabilities Act (July 22, 2013), https://www.ada.gov/louisiana-tech.htm [https://perma.cc/78ES-4FQR].
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    Moreover, other Federal agencies have also taken enforcement action 
against public entities regarding the lack of access for people with 
disabilities to websites. In December 2017, for example, the U.S. 
Department of Education entered into a resolution agreement with the 
Alaska Department of Education and Early Development after it found the 
entity had violated Federal statutes, including title II of the ADA, by 
denying people with disabilities an equal opportunity to participate in 
Alaska Department of Education and Early Development's services, 
programs, and activities, due to website inaccessibility.\63\ 
Similarly, the U.S. Department of Housing and Urban Development took 
action against the City of Los Angeles, and its subrecipient housing 
providers, to ensure that it maintained an accessible housing website 
concerning housing opportunities.\64\
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    \63\ In re Alaska Dep't of Educ. and Early Dev., OCR Reference 
No. 10161093 (U.S. Dep't of Educ. Dec. 11, 2017) (resolution 
agreement), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b.pdf [https://perma.cc/DUS4-HVZJ], 
superseded by https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b1.pdf [https://perma.cc/BVL6-Y59M] 
(U.S. Dep't of Educ. Mar. 28, 2018) (revised resolution agreement).
    \64\ See Voluntary Compliance Agreement Between the U.S. 
Department of Housing and Urban Development and the City of Los 
Angeles, California (Aug. 2, 2019), https://www.hud.gov/sites/dfiles/Main/documents/HUD-City-of-Los-Angeles-VCA.pdf [https://perma.cc/X5RN-AJ5K].
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    The Department believes that adopting technical standards for web 
and mobile app accessibility will provide clarity to public entities 
regarding how to make the services, programs, and activities they offer 
the public via the web and mobile apps accessible. Adopting specific 
technical standards for web and mobile app accessibility will also 
provide individuals with disabilities with consistent and predictable 
access to the web content and mobile apps of public entities.

IV. Section-by-Section Analysis

    This section details the Department's proposed changes to the title 
II regulation, including the reasoning behind the proposals, and poses 
questions for public comment.

Subpart A--General

Sec.  35.104 Definitions
``Archived Web Content''
    The Department proposes to add a definition for ``archived web 
content'' to proposed Sec.  35.104. The proposed definition defines 
``archived web content'' as ``web content that (1) is maintained 
exclusively for reference, research, or recordkeeping; (2) is not 
altered or updated after the date of archiving; and (3) is organized 
and stored in a dedicated area or areas clearly identified as being 
archived.'' The definition is meant to capture web content that, while 
outdated or superfluous, is maintained unaltered in a dedicated area on 
a public entity's website for historical, reference, or other similar 
purposes, and the term is used in the proposed exceptions set forth in 
Sec.  35.201. Throughout this rule, a public entity's ``website'' is 
intended to include not only the websites hosted by the public entity, 
but also websites operated on behalf of a public entity by a third 
party. For example, public entities sometimes use vendors to create and 
host their web content. Such content would also be covered by this 
rule.
``Conventional Electronic Documents''
    The Department proposes to add a definition for ``conventional 
electronic documents'' to proposed Sec.  35.104. The proposal defines 
``conventional electronic documents'' as ``web content or content in 
mobile apps that is in the following electronic file formats: portable 
document formats (`PDFs'), word processor file formats, presentation 
file formats, spreadsheet file formats, and database file formats.'' 
The definition thus provides an exhaustive list of electronic file 
formats that constitute conventional electronic documents. Examples of 
conventional electronic documents include: Adobe PDF files (i.e., 
portable document formats), Microsoft Word files (i.e., word processor 
files), Apple Keynote or Microsoft PowerPoint files (i.e., presentation 
files), Microsoft Excel files (i.e., spreadsheet files), and FileMaker 
Pro or Microsoft Access files (i.e., database files).
    The term ``conventional electronic documents'' is intended to 
describe those documents created or saved as an electronic file that 
are commonly available on public entities' websites

[[Page 51958]]

and mobile apps in either an electronic form or as printed output. The 
term is intended to capture documents where the version posted by the 
public entity is not open for editing by the public. For example, if a 
public entity maintains a Word version of a flyer on its website, that 
would be a conventional electronic document. A third party could 
technically download and edit that Word document, but their edits would 
not impact the ``official'' posted version. Similarly, a Google Docs 
file that does not allow others to edit or add comments in the posted 
document would be a conventional electronic document. The term 
``conventional electronic documents'' is used in proposed Sec.  
35.201(b) to provide an exception for certain electronic documents 
created by or for a public entity that are available on a public 
entity's website before the compliance date of this rule and in 
proposed Sec.  35.201(g) to provide an exception for certain 
individualized, password-protected documents, and is addressed in more 
detail in the discussion regarding proposed Sec. Sec.  35.201(b) and 
(g).
``Mobile Applications (Apps)''
    Mobile apps are software applications that are downloaded and 
designed to run on mobile devices such as smartphones and tablets. For 
the purposes of this part, mobile apps include, for example, native 
apps built for a particular platform (e.g., Apple iOS, Google Android, 
among others) or device and hybrid apps using web components inside 
native apps.
``Special District Government''
    The Department proposes to add a definition for a ``special 
district government.'' The term ``special district government'' is used 
in proposed Sec.  35.200(b) and is defined in proposed Sec.  35.104 to 
mean ``a public entity--other than a county, municipality, or township, 
or independent school district--authorized by State law to provide one 
function or a limited number of designated functions with sufficient 
administrative and fiscal autonomy to qualify as a separate government 
and whose population is not calculated by the United States Census 
Bureau in the most recent decennial Census or Small Area Income and 
Poverty Estimates.'' Because special district governments do not have 
populations calculated by the United States Census Bureau, their 
population sizes are unknown. A special district government may 
include, for example, a mosquito abatement district, utility district, 
transit authority, water and sewer board, zoning district, or other 
similar governmental entities that may operate with administrative and 
fiscal independence.
``Total Population''
    The Department proposes to add a definition for ``total 
population.'' The term ``total population'' means ``the population 
estimate for a public entity as calculated by the United States Census 
Bureau in the most recent decennial Census or, if a public entity is an 
independent school district, the population estimate as calculated by 
the United States Census Bureau in the most recent Small Area Income 
and Poverty Estimates.''
    As mentioned previously, proposed Sec.  35.200 generally proposes 
different compliance dates according to a public entity's size. The 
term ``total population'' is generally used in proposed Sec.  35.200 to 
refer to the size of a public entity's population as calculated by the 
U.S. Census Bureau in the most recent decennial Census. If a public 
entity does not have a specific population calculated by the U.S. 
Census Bureau, but belongs to another jurisdiction that does, the 
population of the entity is determined by the population of the 
jurisdiction to which the entity belongs. For example, the total 
population of a county library is the population of the county to which 
the library belongs. However, because the decennial Census does not 
include population estimates for public entities that are independent 
school districts, the term ``total population'' with regard to 
independent school districts refers to population estimates in the most 
recent Small Area Income and Poverty Estimates, which includes 
population estimates for these entities.
``WCAG 2.1''
    The Department proposes to add a definition of ``WCAG 2.1.'' The 
term ``WCAG 2.1'' refers to the 2018 version of the voluntary 
guidelines for web accessibility, known as the Web Content 
Accessibility Guidelines 2.1 (``WCAG''). The W3C[supreg], the principal 
international organization involved in developing standards for the 
web, published WCAG 2.1 in June 2018, and it is available at https://www.w3.org/TR/WCAG21/. WCAG 2.1 is discussed in more detail in proposed 
Sec.  35.200 below.
``Web Content''
    The Department proposes to add a definition for ``web content'' 
under proposed Sec.  35.104 that is based on the WCAG 2.1 definition 
but is slightly less technical and intended to be more easily 
understood by the public generally. The Department's proposal defines 
``web content'' as ``information or sensory experience--including the 
encoding that defines the content's structure, presentation, and 
interactions--that is communicated to the user by a web browser or 
other software. Examples of web content include text, images, sounds, 
videos, controls, animations, and conventional electronic documents.'' 
WCAG 2.1 defines web content as ``information and sensory experience to 
be communicated to the user by means of a user agent, including code or 
markup that defines the content's structure, presentation, and 
interactions.'' \65\
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    \65\ See W3C[supreg], Web Content Accessibility Guidelines 2.1 
(June 5, 2018), https://www.w3.org/TR/WCAG21/#glossary [https://perma.cc/YB57-ZB8C].
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    The definition of ``web content'' attempts to describe the 
different types of information and experiences available on the web. 
The Department's NPRM proposes to cover the accessibility of public 
entities' web content available on public entities' websites and web 
pages regardless of whether the web content is viewed on desktop 
computers, laptops, smartphones, or other devices.
    The definition of ``web content'' also includes the encoding used 
to create the structure, presentation, or interactions of the 
information or experiences on web pages that range in complexity from, 
for example, pages with only textual information to pages where users 
can complete transactions. Examples of languages used to create web 
pages include Hypertext Markup Language (``HTML''), Cascading Style 
Sheets (``CSS''), Python, SQL, PHP, and JavaScript.
    The Department poses questions for feedback about its proposed 
approach. Comments on all aspects of this proposed rule, including 
these proposed definitions, are invited. Please provide as much detail 
as possible and any applicable data, suggested alternative approaches 
or requirements, arguments, explanations, and examples in your 
responses to the following questions.
    Question 1: The Department's definition of ``conventional 
electronic documents'' consists of an exhaustive list of specific file 
types. Should the Department instead craft a more flexible definition 
that generally describes the types of documents that are covered or 
otherwise change the proposed definition, such as by including other 
file types (e.g., images or movies), or removing some of the listed 
file types?
    Question 2: Are there refinements to the definition of ``web 
content'' the Department should consider? Consider,

[[Page 51959]]

for example, WCAG 2.1's definition of ``web content'' as ``information 
and sensory experience to be communicated to the user by means of a 
user agent, including code or markup that defines the content's 
structure, presentation, and interactions.''

Subpart H--Web and Mobile Accessibility

    The Department is proposing to create a new subpart to its title II 
regulation. Subpart H would address the accessibility of public 
entities' web content and mobile apps.
Sec.  35.200 Requirements for Web and Mobile Accessibility
General
    Proposed Sec.  35.200 sets forth specific requirements for the 
accessibility of web content and mobile apps of public entities. 
Proposed Sec.  35.200(a) requires a public entity to ``ensure the 
following are readily accessible to and usable by individuals with 
disabilities: (1) web content that a public entity makes available to 
members of the public or uses to offer services, programs, or 
activities to members of the public; and (2) mobile apps that a public 
entity makes available to members of the public or uses to offer 
services, programs, or activities to members of the public.'' As 
detailed below, the remainder of proposed Sec.  35.200 sets forth the 
specific standards that public entities would be required to meet to 
make their web content and mobile apps accessible and the proposed 
timelines for compliance.
Background on Accessibility Standards for Websites and Web Content
    Since 1994, the W3C[supreg] has been the principal international 
organization involved in developing protocols and guidelines for the 
web.\66\ The W3C[supreg] develops a variety of voluntary technical 
standards and guidelines, including ones relating to privacy, 
internationalization of technology, and, relevant to this rulemaking, 
accessibility. The W3C[supreg]'s WAI has developed voluntary guidelines 
for web accessibility, known as WCAG, to help web developers create web 
content that is accessible to individuals with disabilities.
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    \66\ W3C[supreg], About Us, https://www.w3.org/about/ [https://perma.cc/TQ2W-T377].
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    The first version of WCAG, WCAG 1.0, was published in 1999. WCAG 
2.0 was published in December 2008, and is available at http://www.w3.org/TR/2008/REC-WCAG20-20081211/ [https://perma.cc/L2NH-VLCR]. 
WCAG 2.0 was approved as an international standard by the International 
Organization for Standardization (``ISO'') and the International 
Electrotechnical Commission (``IEC'') in October 2012.\67\ WCAG 2.1, 
the most recent and updated recommendation of WCAG, was published in 
June 2018, and is available at https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].\68\
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    \67\ W3C[supreg], Web Accessibility Guidelines 2.0 Approved as 
ISO/IEC International Standard (Oct. 15, 2012), https://www.w3.org/press-releases/2012/wcag2pas/[https://perma.cc/JQ39-HGKQ].
    \68\ See W3C[supreg], Web Content Accessibility Guidelines 2.1 
(June 5, 2018), https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance [https://perma.cc/5PDG-ZTJE]. Additionally, in May 2021, 
WAI published a working draft for WCAG 2.2, which has yet to be 
finalized. W3C[supreg], Web Content Accessibility Guidelines 2.2 
(May 21, 2021), https://www.w3.org/TR/WCAG22/ [https://perma.cc/M4G8-Z2GY]. The WAI also published a working draft of WCAG 3.0 in 
December 2021. W3C[supreg], Web Content Accessibility Guidelines 3.0 
(Dec. 7, 2021), https://www.w3.org/TR/wcag-3.0/ [https://perma.cc/7FPQ-EEJ7].
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    WCAG 2.1 contains four principles that provide the foundation for 
web accessibility: perceivable, operable, understandable, and 
robust.\69\ Testable success criteria (i.e., requirements for web 
accessibility that are measurable) are provided ``to be used where 
requirements and conformance testing are necessary such as in design 
specification, purchasing, regulation and contractual agreements.'' 
\70\ Thus, WCAG 2.1 contemplates establishing testable success criteria 
that could be used in regulatory efforts such as this one.
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    \69\ Id.
    \70\ See W3C[supreg], Web Content Accessibility Guidelines 2.1, 
WCAG 2 Layers of Guidance (June 5, 2018), https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance [https://perma.cc/5PDG-ZTJE] 
(emphasis added).
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Proposed WCAG Version
    The Department is proposing to adopt WCAG 2.1 as the technical 
standard for web and mobile app accessibility under title II. WCAG 2.1 
was published in June 2018 and is available at https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F]. WCAG 2.1 represents the most 
recent and updated published recommendation of WCAG. WCAG 2.1 
incorporates and builds upon WCAG 2.0--meaning that WCAG 2.1 includes 
all of the WCAG 2.0 success criteria, in addition to success criteria 
that were developed under WCAG 2.1.\71\ Specifically, WCAG 2.1 added 12 
Level A and AA success criteria to the 38 success criteria contained in 
WCAG 2.0 Level AA.\72\ The additional criteria provide important 
accessibility benefits, especially for people with low vision, manual 
dexterity disabilities, and cognitive and learning disabilities.\73\ 
The additional criteria are intended to improve accessibility for 
mobile web content and mobile apps.\74\ The Department anticipates that 
WCAG 2.1 is familiar to web developers as it comprises WCAG 2.0's 
requirements--which have been in existence since 2008--and 12 new Level 
A and AA requirements that have been in existence since 2018.
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    \71\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020), 
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
    \72\ Id.
    \73\ Id.
    \74\ See id.
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    The Department expects that adopting WCAG 2.1 as the technical 
standard will have benefits that are important to ensuring access for 
people with disabilities to public entities' services, programs, and 
activities. For example, WCAG 2.1 requires that text be formatted so 
that it is easier to read when magnified.\75\ This is important, for 
example, for people with low vision who use magnifying tools. Without 
the formatting that WCAG 2.1 requires, a person magnifying the text 
might find reading the text disorienting because they could have to 
scroll horizontally on every line.\76\
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    \75\ See W3C[supreg], Web Content Accessibility Guidelines 2.1, 
Reflow (June 5, 2018), https://www.w3.org/TR/WCAG21/#reflow [https://perma.cc/YRP5-M599].
    \76\ See id.
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    WCAG 2.1 also has new success criteria addressing the accessibility 
of mobile apps or web content viewed on a mobile device. For example, 
WCAG 2.1 Success Criterion 1.3.4 requires that page orientation (i.e., 
portrait or landscape) not be restricted to just one orientation, 
unless a specific display orientation is essential.\77\ This feature is 
important, for example, for someone who uses a wheelchair with a tablet 
attached to it such that the tablet cannot be rotated.\78\ If content 
only works in one orientation (i.e., portrait or landscape) it will not 
always work for this individual depending on how the tablet is 
oriented, and could render that content or app unusable for the 
person.\79\ Another WCAG 2.1 success criterion requires, in part, that 
if a device can be operated by motion--for example, shaking the device 
to undo typing--that there be an option to turn

[[Page 51960]]

off that motion sensitivity.\80\ This could be important, for example, 
for someone who has tremors so that they do not accidentally undo their 
typing.\81\
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    \77\ See W3C[supreg], Web Content Accessibility Guidelines 2.1, 
Orientation (June 5, 2018), https://www.w3.org/TR/WCAG21/#orientation [https://perma.cc/FC3E-FRYK].
    \78\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020), 
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK]
    \79\ See id.
    \80\ See W3C[supreg], Web Content Accessibility Guidelines 2.1, 
Motion Actuation (June 5, 2018), https://www.w3.org/TR/WCAG21/#motion-actuation [https://perma.cc/6S93-VX58].
    \81\ See W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020), 
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
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    Such accessibility features are critical for people with 
disabilities to have equal access to their State or local government's 
services, programs, and activities. This is particularly true given 
that using mobile devices to access government services is commonplace. 
For example, in August 2022, about 54 percent of visits to Federal 
Government websites over the previous 90 days were from mobile 
devices.\82\ In addition, WCAG 2.1's incorporation of mobile-related 
criteria is important because of public entities' increasing use of 
mobile apps in offering their services, programs, and activities via 
mobile apps. As discussed in more detail later, public entities are 
using mobile apps to offer a range of critical government services--
from traffic information, to scheduling trash pickup, to vaccination 
appointments.
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    \82\ U.S. Gen. Servs. Admin. Digital Analytics Program, https://analytics.usa.gov/ [https://perma.cc/2YZP-KCMG].
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    Because WCAG 2.1 is the most recent recommended version of WCAG and 
generally familiar to web professionals, the Department expects it is 
well-positioned to continue to be relevant even as technology 
inevitably evolves. In fact, the W3C[supreg] advises using WCAG 2.1 
over WCAG 2.0 when possible because WCAG 2.1 incorporates more forward-
looking accessibility needs.\83\ The WCAG standards were designed to be 
``technology neutral.'' \84\ This means that they are designed to be 
broadly applicable to current and future web technologies.\85\ Thus, 
WCAG 2.1 also allows web and mobile app developers flexibility and 
potential for innovation.
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    \83\ W3C[supreg], WCAG 2.0 Overview (updated Aug. 6, 2022), 
https://www.w3.org/WAI/standards-guidelines/wcag/ [https://perma.cc/L7NX-8XW3].
    \84\ W3C[supreg], Introduction to Understanding WCAG (June 20, 
2023), https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU].
    \85\ See W3C[supreg], Understanding Techniques for WCAG Success 
Criteria (June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques [https://perma.cc/AMT4-XAAL].
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    The Department also expects that public entities are likely already 
familiar with WCAG 2.1 or will be able to become familiar quickly. This 
is because WCAG 2.1 has been available since 2018, and it builds upon 
WCAG 2.0, which has been in existence since 2008 and has been 
established for years as a benchmark for accessibility. In other words, 
the Department expects that web developers and professionals who work 
for or with public entities are likely to be familiar with WCAG 2.1. If 
they are not already familiar with WCAG 2.1, the Department expects 
that they are at least likely to be familiar with WCAG 2.0 and will be 
able to become acquainted quickly with WCAG 2.1's 12 additional Level A 
and AA success criteria. The Department also believes that resources 
exist to help public entities implement or understand how to implement 
not only WCAG 2.0 Level AA, but also WCAG 2.1 Level AA. Additionally, 
public entities will have two or three years to come into compliance 
with a final rule, which should also provide sufficient time to get 
acquainted with and implement WCAG 2.1.
    According to the Department's research, WCAG 2.1 is also being 
increasingly used by members of the public and governmental entities. 
In fact, the Department recently included WCAG 2.1 in several 
settlement agreements with covered entities addressing inaccessible 
websites.\86\
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    \86\ See, e.g., Settlement Agreement with CVS Pharmacy, Inc. 
(Apr. 11, 2022), https://archive.ada.gov/cvs_sa.pdf [https://perma.cc/H5KZ-4VVF]; Settlement Agreement with Meijer, Inc. (Feb. 2, 
2022), https://archive.ada.gov/meijer_sa.pdf [https://perma.cc/5FGD-FK42]; Settlement Agreement with The Kroger Co. (Jan. 28, 2022), 
https://archive.ada.gov/kroger_co_sa.pdf [https://perma.cc/6ASX-U7FQ]; Settlement Agreement with Champaign-Urbana Mass Transit Dist. 
(Dec. 14, 2021), https://www.justice.gov/d9/case-documents/attachments/2021/12/14/champaign-urbana_sa.pdf [https://perma.cc/66XY-QGA8]; Settlement Agreement with Hy-Vee, Inc. (Dec. 1, 2021) 
https://archive.ada.gov/hy-vee_sa.pdf [https://perma.cc/GFY6-BJNE]; 
Settlement Agreement with Rite Aid Corp. (Nov. 1, 2021), https://archive.ada.gov/rite_aid_sa.pdf [https://perma.cc/4HBF-RBK2].
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    In evaluating what technical standard to propose, the Department 
also considered WCAG 2.0. In addition, the Department considered the 
standards set forth under section 508 of the Rehabilitation Act of 
1973, which governs the accessibility of the Federal Government's web 
content and is harmonized with WCAG 2.0.\87\ In 2017, when the United 
States Access Board adopted WCAG 2.0 as the technical standard for the 
Federal Government's web content under section 508, WCAG 2.1 had not 
been finalized.\88\ The Department ultimately decided to propose WCAG 
2.1 as the appropriate standard. A number of countries that have 
adopted WCAG 2.0 as their standard are now making efforts to move or 
have moved to WCAG 2.1.\89\ In countries that are part of the European 
Union, public sector websites and mobile apps generally must meet a 
technical standard that requires conformance with the WCAG 2.1 Level AA 
success criteria.\90\ And although WCAG 2.0 is the standard adopted by 
the Department of Transportation in its rule implementing the Air 
Carrier Access Act, which covers airlines' websites and kiosks,\91\ 
that rule--like the section 508 rule--was promulgated before WCAG 2.1 
was published.
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    \87\ 36 CFR 1194, app. A.
    \88\ See Information and Communication Technology (``ICT'') 
Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017); 
W3C[supreg], Web Content Accessibility Guidelines 2.1 (June 5, 
2018), https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].
    \89\ See e.g., Exploring WCAG 2.1 for Australian government 
services, Australian Government Digital Transformation Agency (Aug. 
22, 2018), https://www.dta.gov.au/blogs/exploring-wcag-21-australian-government-services. A Perma archive link was unavailable 
for this citation.
    \90\ Web Accessibility, European Comm'n (updated July 13, 2022), 
https://digital-strategy.ec.europa.eu/en/policies/web-accessibility 
[https://perma.cc/LSG9-XW7L]; Accessibility Requirements for ICT 
Products and Services, European Telecomm. Standards Institute, 45-
51, 64-78 (Mar. 2021), https://www.etsi.org/deliver/etsi_en/301500_301599/301549/03.02.01_60/en_301549v030201p.pdf [https://perma.cc/5TEZ-9GC6].
    \91\ See 14 CFR 382.43(c)-(e), 382.57.
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    The Department expects that the wide usage of WCAG 2.0 lays a solid 
foundation for public entities to become familiar with and implement 
WCAG 2.1's additional Level A and AA criteria. According to the 
Department's research, approximately 48 States either use or strive to 
use a WCAG 2.0 standard or greater for at least some of their web 
content. It appears that at least four of these States--Louisiana, 
Maryland, Nebraska, and Washington--already either use WCAG 2.1 or 
strive to use WCAG 2.1 for at least some of their web content.
    WCAG 2.1 represents the most up-to-date recommendation and is 
generally familiar to web professionals. It offers important 
accessibility benefits for people with disabilities that affect manual 
dexterity, adds some criteria to reduce barriers for those with low 
vision and cognitive disabilities, and expands coverage of mobile 
content. Given that public entities will have two or three years to 
comply, the Department views WCAG 2.1 as the appropriate technical 
standard to propose at this time.
    The Department is aware that a working draft for WCAG 2.2 was 
published in May 2021.\92\ Several subsequent drafts have also been

[[Page 51961]]

published.\93\ All of the WCAG 2.0 and WCAG 2.1 success criteria except 
for one are included in WCAG 2.2.\94\ But WCAG 2.2 also includes six 
additional Level A and AA success criteria beyond those included in 
WCAG 2.1.\95\ Like WCAG 2.1, WCAG 2.2 offers benefits for individuals 
with low vision, limited manual dexterity, and cognitive disabilities. 
For example, Success Criterion 3.3.8, which is a new criterion under 
WCAG 2.2, improves access for people with cognitive disabilities by 
limiting the use of cognitive function tests, like solving puzzles, in 
authentication processes.\96\ Because WCAG 2.2 has not yet been 
finalized and is subject to change, and web professionals have had less 
time to become familiar with the additional success criteria that have 
been incorporated into WCAG 2.2, the Department does not believe it is 
appropriate to adopt WCAG 2.2 as the technical standard at this time.
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    \92\ W3C[supreg], Web Content Accessibility Guidelines 2.2 (May 
21, 2021), https://www.w3.org/TR/2021/WD-WCAG22-20210521/ [https://perma.cc/M4G8-Z2GY].
    \93\ See, e.g., W3C[supreg], Web Content Accessibility 
Guidelines 2.2 (May 17, 2023), https://www.w3.org/TR/WCAG22/ 
[https://perma.cc/SXA7-RF32].
    \94\ W3C[supreg], What's New in WCAG 2.2 Draft (May 17, 2023), 
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-22/ [https://perma.cc/Y67R-SFSE].
    \95\ Id.
    \96\ Id.
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    The Department is seeking feedback from the public about its 
proposal to use WCAG 2.1 as the standard under this rule and its 
assumptions underlying this decision. Please provide as much detail as 
possible and any applicable data, suggested alternative approaches or 
requirements, arguments, explanations, and examples in your responses 
to the following questions.
    Question 3: Are there technical standards or performance standards 
other than WCAG 2.1 that the Department should consider? For example, 
if WCAG 2.2 is finalized before the Department issues a final rule, 
should the Department consider adopting that standard? If so, what is a 
reasonable time frame for State and local compliance with WCAG 2.2 and 
why? Is there any other standard that the Department should consider, 
especially in light of the rapid pace at which technology changes?
Proposed WCAG Conformance Level
    For a web page to conform to WCAG 2.1, the web page must satisfy 
the success criteria under one of three levels of conformance: A, AA, 
or AAA. The three levels of conformance indicate a measure of 
accessibility and feasibility. Level A, which is the minimum level of 
accessibility, contains criteria that provide basic web accessibility 
and are the least difficult to achieve for web developers.\97\ Level 
AA, which is the intermediate level of accessibility, includes all of 
the Level A criteria and contains enhanced criteria that provide more 
comprehensive web accessibility, and yet are still achievable for most 
web developers.\98\ Level AAA, which is the highest level of 
conformance, includes all of the Level A and Level AA criteria and 
contains additional criteria that can provide a more enriched user 
experience, but are the most difficult to achieve for web 
developers.\99\ The W3C[supreg] does not recommend that Level AAA 
conformance be required as a general policy for entire websites because 
it is not possible to satisfy all Level AAA criteria for some 
content.\100\
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    \97\ W3C[supreg], Web Content Accessibility Guidelines (WCAG) 2 
Level A Conformance (July 13, 2020), https://www.w3.org/WAI/WCAG2A-Conformance [https://perma.cc/KT74-JNHG].
    \98\ Id.
    \99\ Id.
    \100\ See W3C[supreg], Understanding Conformance, Understanding 
Requirement 1, https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/9ZG9-G5N8].
---------------------------------------------------------------------------

    Based on review of previous public feedback and independent 
research, the Department believes that WCAG 2.1 Level AA is an 
appropriate conformance level because it includes criteria that provide 
web accessibility to individuals with disabilities--including those 
with visual, auditory, physical, speech, cognitive, and neurological 
disabilities--and yet is feasible for public entities' web developers 
to implement. In addition, Level AA conformance is widely used, making 
it more likely that web developers are already familiar with its 
requirements. Though many of the entities that conform to Level AA do 
so under WCAG 2.0, not 2.1, this still suggests a widespread 
familiarity with most of the Level AA success criteria, given that 38 
of the 50 Level A and AA success criteria in WCAG 2.1 are also included 
in WCAG 2.0. The Department believes that Level A conformance alone is 
not appropriate because it does not include criteria for providing web 
accessibility that the Department understands are critical, such as a 
minimum level of color contrast so that items like text boxes or icons 
are easier to see, which is important for people with vision 
disabilities. Also, while Level AAA conformance provides a richer user 
experience, it is the most difficult to achieve for many entities. 
Therefore, the Department is proposing Level AA conformance for public 
feedback as to whether it strikes the right balance between 
accessibility for individuals with disabilities and achievability for 
public entities. Adopting a WCAG 2.1 Level AA conformance level would 
make the ADA requirements consistent with a standard that has been 
widely accepted internationally. Many nations have selected Level AA 
conformance as their standard for web accessibility.\101\ The web 
content of Federal agencies that are governed by section 508 also need 
to comply with Level AA.\102\ In its proposed regulatory text in Sec.  
35.200(b)(1) and (2), the Department provides that public entities must 
``comply with Level A and Level AA success criteria and conformance 
requirements specified in WCAG 2.1.'' WCAG 2.1 provides that for 
``Level AA conformance, the web page [must] satisf[y] all the Level A 
and Level AA Success Criteria . . . .'' \103\ However, individual 
success criteria in WCAG 2.1 are labeled only as Level A or Level AA. 
Therefore, a person reviewing individual requirements in WCAG 2.1 may 
not understand that both Level A and Level AA success criteria must be 
met in order to attain Level AA. Accordingly, the Department has made 
explicit in its proposed regulation that both Level A and Level AA 
success criteria and conformance requirements must be met in order to 
comply with the proposed web accessibility requirements.
---------------------------------------------------------------------------

    \101\ See W3C[supreg], Web Accessibility Laws & Policies (Mar. 
21, 2018), https://www.w3.org/WAI/policies/ [https://perma.cc/5EBY-3WX4].
    \102\ See Information and Communication Technology (``ICT'') 
Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017).
    \103\ See W3C[supreg], Conformance Requirements, Web Content 
Accessibility Guidelines (WCAG) 2.1 (June 5, 2018), https://www.w3.org/TR/WCAG21/#cc1 [https://perma.cc/ZL6N-VQX4]. WCAG 2.1 
also states that a Level AA conforming alternate version may be 
provided. The Department has adopted a slightly different approach 
to conforming alternate versions, which is discussed below.
---------------------------------------------------------------------------

Conformance Level for Small Public Entities
    The Department considered proposing another population threshold of 
very small entities that would be subject to a lower conformance level 
or WCAG version, to reduce the burden of compliance on those entities. 
However, the Department decided against this proposal due to a variety 
of factors. First, this would make for inconsistent levels of WCAG 
conformance across public entities, and a universal standard for 
consistency in implementation would promote predictability. A universal 
level of conformance would reduce confusion about which standard 
applies, and it would create a basic level of conformance for all 
public entities to follow. It would also allow for people with 
disabilities to know what they can

[[Page 51962]]

expect when navigating a public entity's web content; for example, it 
will be helpful for people with disabilities to know that they can 
expect to be able to navigate a public entity's web content 
independently using their assistive technology. Finally, for the 
reasons discussed above, the Department believes that WCAG 2.1 Level AA 
contains criteria that are critical to accessing services, programs, 
and activities of public entities, which may not be included under a 
lower standard. However, the Department recognizes that small public 
entities--those with a total population of less than 50,000 based on 
Census data--might initially face more technical and resource 
challenges in complying than larger public entities. Therefore, as 
discussed below, the Department has decided to propose different 
compliance dates according to a public entity's size to reduce burdens 
on small public entities.
Possible Alternative Standards for Compliance
    The Department considered proposing to adopt the section 508 
standards but decided not to take this approach. The section 508 
standards are harmonized with WCAG 2.0, and for the reasons discussed 
above, the Department believes WCAG 2.1--which had not been finalized 
at the time the section 508 standards were promulgated--is the more 
appropriate recommendation for this proposed rule. Moreover, by 
adopting WCAG on its own rather than adopting it through the section 
508 standards, the Department can then tailor the rule to public 
entities as it does in this proposed rule.
    The Department also considered adopting performance standards 
instead of specific technical standards for accessibility of web 
content. Performance standards establish general expectations or goals 
for web accessibility and allow for compliance via a variety of 
unspecified methods. Performance standards could provide greater 
flexibility in ensuring accessibility as web technologies change. 
However, based on what the Department has heard previously from the 
public and its own knowledge of this area, the Department understands 
that performance standards might be too vague and subjective and could 
prove insufficient in providing consistent and testable requirements 
for web accessibility. Additionally, the Department expects that 
performance standards would likely not result in predictability for 
either public entities or people with disabilities in the way that a 
more specific technical standard would. Further, similar to a 
performance standard, WCAG has been designed to allow for flexibility 
and innovation in the evolving web environment. The Department 
recognizes the importance of adopting a standard for web accessibility 
that provides not only specific and testable requirements, but also 
sufficient flexibility to develop accessibility solutions for new web 
technologies. The Department believes that WCAG achieves this balance 
because it provides flexibility similar to a performance standard, but 
it also provides more clarity, consistency, predictability, and 
objectivity. Using WCAG also enables public entities to know precisely 
what is expected of them under title II, which may be of particular 
benefit to jurisdictions with less technological experience. This will 
assist public entities in targeting accessibility errors, which may 
reduce costs they would incur without clear expectations.
    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following 
questions.
    Question 4: What compliance costs and challenges might small public 
entities face in conforming with this rule? How accessible are small 
public entities' web content and mobile apps currently? Do small public 
entities have internal staff to modify their web content and mobile 
apps, or do they use outside consulting staff to modify and maintain 
their web content and mobile apps? If small public entities have 
recently (for example, in the past three years) modified their web 
content or mobile apps to make them accessible, what costs were 
associated with those changes?
    Question 5: Should the Department adopt a different WCAG version or 
conformance level for small entities or a subset of small entities?
Public Entities' Use of Social Media Platforms
    Public entities are increasingly using social media platforms to 
provide information and communicate with the public about their 
services, programs, and activities in lieu of or in addition to 
engaging the public on their own websites. The Department is using the 
term ``social media platforms'' to refer to websites or mobile apps of 
third parties whose primary purpose is to enable users to create and 
share content in order to participate in social networking (i.e., the 
creation and maintenance of personal and business relationships online 
through websites and mobile apps like Facebook, Instagram, Twitter, and 
LinkedIn).
    The Department is proposing to require that web content that public 
entities make available to members of the public or use to offer 
services, programs, and activities to members of the public be 
accessible within the meaning of proposed Sec.  35.200. This 
requirement would apply regardless of whether that web content is 
located on the public entity's own website or elsewhere on the web. It 
therefore covers web content that a public entity makes available via a 
social media platform. Even where a social media platform is not fully 
accessible, a public entity can generally take actions to ensure that 
the web content that it posts is accessible and in compliance with WCAG 
2.1.\104\ The Department understands that social media platforms often 
make available certain accessibility features like the ability to add 
captions or alt text. It is the public entity's responsibility to use 
these features when it makes web content available on social media 
sites. For example, if a public entity posts an image to a social media 
site that allows users to post alt text, the public entity needs to 
ensure that appropriate alt text accompanies that image so that screen 
reader users can access the information.
---------------------------------------------------------------------------

    \104\ See Federal Social Media Accessibility Toolkit Hackpad, 
Digital.gov (updated June 21, 2022), https://digital.gov/resources/federal-social-media-accessibility-toolkit-hackpad/ [https://perma.cc/DJ8X-UCHA].
---------------------------------------------------------------------------

    At this time, the Department is not proposing any regulatory text 
specific to the web content that public entities make available to 
members of the public via social media platforms because web content 
posted on social media platforms will be treated the same as any other 
content public entities post on the web. However, the Department is 
considering creating an exception from coverage under the rule for 
social media posts if they were posted before the effective date of the 
rule. This exception would recognize that making preexisting social 
media content accessible may be impossible at this time or result in a 
significant burden. Many public entities have posted social media 
content for several years, often numbering thousands of posts, which 
may not all be accessible. The benefits of making all preexisting 
social media posts accessible might also be limited as these posts are 
intended to provide current updates on platforms that are frequently 
refreshed with new information. The Department is considering this 
exception in recognition of the fact that many entities' resources may 
be better spent

[[Page 51963]]

ensuring that current web content is accessible, rather than reviewing 
all preexisting social media content for compliance or possibly 
deleting their previous posts. The Department is looking for input on 
whether this approach would make sense and whether any limitations to 
this approach are necessary, such as providing that the exception does 
not apply when preexisting social media content is currently used to 
offer a service, program, or activity, or possibly limiting this 
exception when the public requests certain social media content to be 
made accessible.
    The Department is also weighing whether public entities' 
preexisting videos posted to social media platforms such as YouTube 
should be excepted from coverage due to these same concerns or 
otherwise be treated differently.
    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following 
questions.
    Question 6: How do public entities use social media platforms and 
how do members of the public use content made available by public 
entities on social media platforms? What kinds of barriers do people 
with disabilities encounter when attempting to access public entities' 
services via social media platforms?
Mobile Applications
    The Department is proposing to adopt the same technical standard 
for mobile app accessibility as it is for web content--WCAG 2.1 Level 
AA. As discussed earlier, WCAG 2.1 was published in June 2018 and was 
developed, in part, to address mobile accessibility.\105\
---------------------------------------------------------------------------

    \105\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020), 
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
---------------------------------------------------------------------------

    The Department considered applying WCAG 2.0 Level AA to mobile 
apps, which is a similar approach to the requirements in the final rule 
promulgated by the United States Access Board in its update to the 
section 508 standards.\106\ WCAG 2.1 was not finalized when the Access 
Board adopted the section 508 standards. When WCAG 2.0 was originally 
drafted in 2008, mobile apps were not as widely used or developed. 
Further, the technology has grown considerably since that time. 
Accordingly, WCAG 2.1 provides 12 additional Level A and AA success 
criteria not included in WCAG 2.0 to ensure, among other things, that 
mobile apps are more accessible to individuals with disabilities using 
mobile devices.\107\ For example, WCAG 2.1 includes Success Criterion 
1.4.12, which ensures that text spacing like letter spacing, line 
spacing, and word spacing meets certain requirements to ensure 
accessibility; Success Criterion 2.5.4, which enables the user to 
disable motion actuation (e.g., the ability to activate a device's 
function by shaking it) to prevent such things as accidental deletion 
of text; and Success Criterion 1.3.5, which allows a user to input 
information such as a name or address automatically.\108\
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    \106\ See 82 FR 5790, 5815 (Jan. 18, 2017).
    \107\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020), 
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
    \108\ W3C[supreg], Web Content Accessibility Guidelines 2.1 
(June 5, 2018), https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].
---------------------------------------------------------------------------

    The Access Board's section 508 standards include additional 
requirements applicable to mobile apps that are not in WCAG 2.1, and 
the Department is requesting feedback on whether to adopt those 
requirements as well. For example, the section 508 standards apply the 
following requirements not found in WCAG 2.1 to mobile apps: 
interoperability requirements to ensure that a mobile app does not 
disrupt a device's assistive technology for persons with disabilities 
(e.g., screen readers for persons who are blind or have low vision); 
requirements for mobile apps to follow preferences on a user's phone 
such as settings for color, contrast, and font size; and requirements 
for caption controls and audio description controls that enable users 
to adjust caption and audio description functions.\109\
---------------------------------------------------------------------------

    \109\ 36 CFR 1194, app. C (Sec. Sec.  502.1, 502.2.2, 503.2, 
503.4.1, 503.4.2).
---------------------------------------------------------------------------

    Adopting WCAG 2.1 Level AA for mobile apps will help ensure this 
rule's accessibility standards for mobile apps are consistent with this 
rule's accessibility standards for web content. We seek comments on 
this approach below. Please provide as much detail as possible and any 
applicable data, suggested alternative approaches or requirements, 
arguments, explanations, and examples in your responses to the 
following questions.
    Question 7: How do public entities use mobile apps to make 
information and services available to the public? What kinds of 
barriers do people with disabilities encounter when attempting to 
access public entities' services, programs, and activities via mobile 
apps? Are there any accessibility features unique to mobile apps that 
the Department should be aware of?
    Question 8: Is WCAG 2.1 Level AA the appropriate accessibility 
standard for mobile apps? Should the Department instead adopt another 
accessibility standard or alternative for mobile apps, such as the 
requirements from section 508 discussed above?
Requirements by Entity Size
    Section 35.200(b) sets forth the proposed specific standard with 
which the web content and mobile apps that public entities make 
available to members of the public or use to offer services, programs, 
and activities to members of the public must comply, and also proposes 
time frames for compliance. The proposed requirements of Sec.  
35.200(b) are generally delineated by the size of the population of the 
public entity, as calculated by the U.S. Census Bureau.
Section 35.200(b)(1): Larger Public Entities
    Section 35.200(b)(1) sets forth the proposed web and mobile app 
accessibility requirements for public entities with a total population 
of 50,000 or more. The requirements of proposed Sec.  35.200(b)(1) are 
meant to apply to larger public entities--specifically, to those public 
entities that do not qualify as ``small governmental jurisdictions'' as 
defined in the Regulatory Flexibility Act.\110\ As applied to this 
proposed rule, the Department defines the population of a public entity 
by the total general population of the jurisdiction as calculated by 
the U.S. Census Bureau. If a public entity does not have a specific 
population calculated by the U.S. Census Bureau, but belongs to another 
jurisdiction that does, the population of the entity is determined by 
the population of the jurisdiction to which the entity belongs. For 
example, a county police department in a county with a population of 
5,000 is a small public entity, while a city police department in a 
city with a population of 200,000 is not a small public entity. For 
purposes of this rule, a population of a public entity is not defined 
by the population that is eligible for or that takes advantage of the 
specific services of the public entity. For example, a county school 
district in a county with a population of 60,000 adults and children is 
not a small public entity regardless of the number of students

[[Page 51964]]

enrolled or eligible for services. Similarly, individual county schools 
are also not considered small public entities if they are components of 
a county government that has a population of over 50,000 (i.e., when 
the individual county schools are not separate legal entities). Though 
a specific county school may create and maintain web content or a 
mobile app, the county, as the legal entity governed by title II, is 
also responsible for what happens in the individual school. The 
Department expects that the specific school benefits from the resources 
made available or allocated by the county.
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    \110\ 5 U.S.C. 601(5) (``[T]he term `small governmental 
jurisdiction' means governments of cities, counties, towns, 
townships, villages, school districts, or special districts, with a 
population of less than fifty thousand . . . .'').
---------------------------------------------------------------------------

    The Department is also proposing this approach because, practically 
speaking, it is likely to make it easier for public entities to 
determine their population size. Under the Department's proposal, 
population size is used to determine a public entity's compliance time 
frame. Some public entities, like libraries or public universities and 
community colleges, do not have population data associated with them in 
the U.S. Census. By using the population data associated with the 
entity the library or university belongs to, like a county or State, 
the library or university can assess its compliance time frame. This 
also allows the county or State as a whole to assess compliance for its 
services, programs, and activities holistically.
    Proposed Sec.  35.200(b)(1) requires that a public entity, other 
than a special district government, with a total population of 50,000 
or more shall ensure that the web content and mobile apps it makes 
available to members of the public or uses to offer services, programs, 
or activities to members of the public comply with Level A and Level AA 
success criteria and conformance requirements specified in WCAG 2.1. 
Public entities subject to proposed Sec.  35.200(b)(1) have two years 
after the publication of a final rule to make their web content and 
mobile apps accessible, unless they can demonstrate that compliance 
with proposed Sec.  35.200(b)(1) would result in a fundamental 
alteration in the nature of a service, program, or activity or in undue 
financial and administrative burdens. The limitations on a public 
entity's obligation to comply with the proposed requirements are 
discussed in more detail below.
    The Department has received varied feedback from the public in the 
past regarding an appropriate time frame for requiring compliance with 
technical web accessibility standards. Individuals with disabilities or 
disability advocacy organizations tended to prefer a shorter time 
frame, often arguing that web accessibility has long been required by 
the ADA and that extending the deadline for compliance rewards entities 
that have not made efforts to make their websites accessible. Some 
covered entities have asked for more time to comply. State and local 
government entities have been particularly concerned about shorter 
compliance deadlines, often citing budgets and staffing as major 
limitations. In the past, many public entities stated that they lacked 
qualified personnel to implement the web accessibility requirements of 
WCAG 2.0, which was relatively new at the time. They told the 
Department that in addition to needing time to implement the changes to 
their websites, they also needed time to train staff or contract with 
professionals who are proficient in developing accessible websites. 
Considering all these factors, as well as the facts that over a decade 
has passed since the Department started receiving such feedback and 
there is more available technology to make web content and mobile apps 
accessible, the Department is proposing a two-year implementation time 
frame for public entities with a total population of 50,000 or more. 
Regulated entities and the community of web developers have had over a 
decade to familiarize themselves with WCAG 2.0, which was published in 
2008 and serves as the foundation for WCAG 2.1, and five years to 
familiarize themselves with the additional 12 Level A and AA success 
criteria of WCAG 2.1. Though the Department is now proposing requiring 
public entities to comply with WCAG 2.1 instead of WCAG 2.0, the 
Department believes the time allowed to come into compliance is 
appropriate. As discussed above, WCAG 2.1 Level AA only adds 12 Level A 
and AA success criteria that were not included in WCAG 2.0. The 
Department believes these additional success criteria will not 
significantly increase the time or resources that it will take for a 
public entity to come into compliance with the proposed rule beyond 
what would have already been required to comply with WCAG 2.0, though 
the Department seeks the public's input on this belief. The Department 
therefore believes this proposal balances the resource challenges 
reported by public entities with the interests of individuals with 
disabilities in accessing the multitude of services, programs, and 
activities that public entities now offer via the web and mobile apps.
Section 35.200(b)(2): Small Public Entities and Special District 
Governments
    The Department has also previously received public input on whether 
it should consider different compliance requirements or a different 
compliance date for small entities in order to take into account the 
impact on small entities as required by the Regulatory Flexibility Act 
of 1980 and Executive Order 13272.\111\ Many disability organizations 
and individuals have opposed having a different timetable or different 
accessibility requirements for smaller entities, stating that many 
small entities have smaller and less complex websites with fewer web 
pages, which would make compliance easier. The Department has also 
heard from other members of the public opposing different timetables or 
different accessibility requirements for smaller entities. These 
commenters note that small public entities are protected from excessive 
burdens deriving from rigorous compliance dates or stringent 
accessibility standards by the ADA's ``undue burden'' compliance 
limitations. It is also the Department's understanding that many web 
accessibility professionals may operate online and could be available 
to assist entities with compliance regardless of their location.
---------------------------------------------------------------------------

    \111\ See Nondiscrimination on the Basis of Disability; 
Accessibility of Web Information and Services of State and Local 
Government Entities and Public Accommodations, 75 FR 43460, 43467 
(July 26, 2010).
---------------------------------------------------------------------------

    Many of those expressing concerns about compliance dates, 
especially web developers as well as State and local government 
entities, have stated that compliance in incremental levels would help 
public entities to allocate resources--both financial and personnel--to 
bring their websites into compliance. Such entities have noted that 
many small State and local government entities do not have a dedicated 
web developer or staff. The Department has heard that when these small 
entities develop or maintain their own websites, they often do so with 
staff or volunteers who have only a cursory knowledge of web design and 
use manufactured web templates or software, which may create 
inaccessible web pages. Some small public entities have expressed 
concern that even when they do use outside help, there is likely to be 
a shortage of professionals who are proficient in web accessibility and 
can assist all public entities in bringing their websites into 
compliance. Some public entities have also expressed concern that 
smaller entities would need to take

[[Page 51965]]

down their websites because they would not be able to comply with the 
accessibility requirements, although the Department notes that public 
entities would not be required to undertake changes that would impose 
an undue financial and administrative burden.
    In light of these concerns, proposed Sec.  35.200(b)(2) sets forth 
the Department's proposed web and mobile app accessibility requirements 
for small public entities and special district governments. 
Specifically, proposed Sec.  35.200(b)(2) covers those public entities 
with a total population of less than 50,000 and special district 
governments. Section 35.200(b)(2) would require these public entities 
to ensure that the web content and mobile apps they make available to 
the public or use to offer services, programs, and activities to 
members of the public, comply with Level A and Level AA success 
criteria and conformance requirements specified in WCAG 2.1, unless 
they can demonstrate that compliance would result in a fundamental 
alteration in the nature of a service, program, or activity or in undue 
financial and administrative burdens. This is the same substantive 
standard that applies to larger entities. However, the Department is 
proposing to give these small entities additional time to bring their 
web content and mobile apps into compliance with proposed Sec.  
35.200(b)(2). Specifically, small public entities and special district 
governments covered by proposed Sec.  35.200(b)(2) will have three 
years after the publication of a final rule to make their web content 
and mobile apps compliant with the Department's proposed requirements. 
The Department believes this longer phase-in period would be prudent to 
allow small public entities and special district governments to 
properly allocate their personnel and financial resources in order to 
bring their web content and mobile apps into compliance with the 
Department's proposed requirements. However, the Department welcomes 
feedback on whether there are alternatives to delaying compliance 
requirements by a year that could better balance the needs of small 
public entities and the people with disabilities who live in those 
communities.
    Proposed Sec.  35.200(b)(2) also covers public entities that are 
special district governments. As previously noted, special district 
governments are governments that are authorized to provide a single 
function or a limited number of functions, such as a zoning or transit 
authority. As discussed above, proposed Sec.  35.200 proposes different 
compliance dates according to the size of the population of the public 
entity, as calculated by the U.S. Census Bureau. The Department 
believes applying to special district governments the same compliance 
date as proposed for small public entities (i.e., compliance in three 
years) may be appropriate for two reasons. First, because the U.S. 
Census Bureau does not provide population estimates for special 
district governments, these limited-purpose public entities would find 
it difficult to obtain population estimates that are objective and 
reliable in order to determine their duties under the proposed rule. 
Though some special district governments may estimate their total 
populations, these entities may use varying methodology to calculate 
population estimations, which may lead to confusion and inconsistency 
in the application of the proposed accessibility requirements. Second, 
although special district governments in some instances may serve a 
large population, unlike counties, cities, or townships with large 
populations that provide a wide range of online government services and 
programs and have large and varying budgets, special district 
governments are authorized to provide a single function or a limited 
number of functions (e.g., to provide mosquito abatement or water and 
sewer services) and have more limited or specialized budgets. 
Therefore, proposed Sec.  35.200(b)(2) extends the deadline for 
compliance for special district governments to three years, as it does 
for small public entities.
    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following 
questions.
    Question 9: How will the proposed compliance date affect small 
public entities? Are there technical or budget constraints that small 
public entities would face in complying with this rule, such that a 
longer phase-in period is appropriate?
    Question 10: How will the proposed compliance date affect people 
with disabilities, particularly in rural areas?
    Question 11: How should the Department define ``small public 
entity''? Should categories of small public entities other than those 
already delineated in this proposed rule be subject to a different WCAG 
2.1 conformance level or compliance date?
    Question 12: Should the Department consider factors other than 
population size, such as annual budget, when establishing different or 
tiered compliance requirements? If so, what should those factors be, 
why are they more appropriate than population size, and how should they 
be used to determine regulatory requirements?
Limitations
    The proposed rule sets forth the limitations on public entities' 
obligations to comply with the specific requirements of this proposed 
rule. For example, where it would impose an undue financial and 
administrative burden to comply with WCAG 2.1 (or part of WCAG 2.1), 
public entities would not be required to remove their web content and 
mobile apps, forfeit their web presence, or otherwise undertake changes 
that would be unduly burdensome. Further, as proposed in Sec.  
35.200(b), the web and mobile app accessibility requirements would not 
require any public entity to take actions that would result in a 
fundamental alteration in the nature of a service, program, or 
activity.
    In circumstances where officials of a public entity believe that 
the proposed action would fundamentally alter the service, program, or 
activity or would result in undue financial and administrative burdens, 
a public entity has the burden of proving that compliance would result 
in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the head of the 
public entity or their designee after considering all resources 
available for use in the funding and operation of the service, program, 
or activity and must be accompanied by a written statement of the 
reasons for reaching that conclusion. If an action required to comply 
with proposed Sec.  35.200(b) would result in such an alteration or 
such burdens, a public entity must take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that, to the maximum extent possible, individuals with 
disabilities receive the benefits or services provided by the public 
entity. For more information, see the discussion below regarding 
limitations on obligations under proposed Sec.  35.204.
Captions for Live-Audio Content
    WCAG 2.1 Level AA Success Criterion 1.2.4 requires synchronized 
captions for live-audio content. The intent of this success criterion 
is to ``enable people who are deaf or hard of hearing to watch real-
time presentations. Captions provide the part of the content available 
via the audio track. Captions not only include dialogue, but also 
identify who is speaking and notate sound effects and

[[Page 51966]]

other significant audio.'' \112\ Modern live captioning often can be 
created with the assistance of technology, such as by assigning 
captioners through Zoom or other conferencing software, which 
integrates captioning with live meetings.
---------------------------------------------------------------------------

    \112\ W3C[supreg], Captions (Live), Understanding SC 1.2.4, 
Understanding WCAG 2.0: A Guide to Understanding and Implementing 
WCAG 2.0, http://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-real-time-captions.html [https://perma.cc/NV74-U77R] (emphasis in 
original).
---------------------------------------------------------------------------

    The Department proposes to apply the same compliance date to all of 
the WCAG 2.1 Level AA success criteria, including live-audio captioning 
requirements. As noted above, this would allow for three years after 
publication of the final rule for small public entities and special 
district governments to comply, and two years for large public 
entities. The Department believes this approach is appropriate for 
several reasons. First, the Department understands that technology 
utilizing live-audio captioning has developed in recent years and 
continues to develop. In addition, the COVID-19 pandemic moved a 
significant number of formerly in-person meetings, activities, and 
other gatherings to online settings, many of which incorporated live-
audio captioning. As a result of these developments, live-audio 
captioning has become even more critical for individuals with certain 
types of disabilities to participate fully in civic life. And while the 
Department believes that the two- and three-year periods described 
above afford a sufficient amount of time for public entities to 
allocate resources towards live-audio captioning, public entities have 
the option to demonstrate that compliance with any success criterion 
would result in a fundamental alteration in the nature of a service, 
program, or activity or in undue financial and administrative burdens.
    Though at least one country that has adopted WCAG 2.0 Level AA as 
its standard for web accessibility has exempted entities from having to 
comply with the live-audio captioning requirements,\113\ the Department 
does not believe this approach is appropriate or necessary under the 
current circumstances, given the current state of live-audio captioning 
technology and the critical need for live-audio captioning for people 
with certain types of disabilities to participate more fully in civic 
life. Further, the Department believes that the state of live-audio 
captioning technology has advanced since 2016 when Canada made the 
decision to exempt entities from the live-audio captioning 
requirements.\114\ However, the Department is interested in learning 
more about compliance capabilities. Accordingly, the Department poses 
several questions for commenters about the development of live-audio 
captioning technology and the Department's proposed requirement.
---------------------------------------------------------------------------

    \113\ See W3C[supreg], Canada (last updated Feb. 9, 2017), 
https://www.w3.org/WAI/policies/canada/ [https://perma.cc/W2DS-FAE9].
    \114\ See id.
---------------------------------------------------------------------------

    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following 
questions.
    Question 13: Should the Department consider a different compliance 
date for the captioning of live-audio content in synchronized media or 
exclude some public entities from the requirement? If so, when should 
compliance with this success criterion be required and why? Should 
there be a different compliance date for different types or sizes of 
public entities?
    Question 14: What types of live-audio content do public entities 
and small public entities post? What has been the cost for providing 
live-audio captioning?
Sec.  35.201 Exceptions
    This rule would require public entities to make their web content 
and mobile apps accessible. However, the Department believes it may be 
appropriate in some situations for certain content to be excepted from 
compliance with the technical requirements of this proposed rule. The 
Department has heard a range of views on this issue, including that a 
title II regulation should not include any exceptions because the 
compliance limitations for undue financial and administrative burdens 
would protect public entities from any unrealistic requirements. On the 
other hand, the Department has also heard that exceptions are necessary 
to avoid substantial burdens on public entities. The Department also 
expects that such exceptions may help public entities avoid uncertainty 
about whether they need to ensure accessibility in situations where it 
might be extremely difficult. After consideration of the public's views 
and after its independent assessment, the Department is proposing the 
following exceptions and poses questions for public feedback. The 
Department is interested in feedback about whether these proposed 
exceptions would relieve the burden on public entities, and also how 
these proposed exceptions would impact people with disabilities.
    The Department is proposing exceptions from coverage--subject to 
certain limitations--for the following seven categories of web content: 
(1) archived web content; (2) preexisting conventional electronic 
documents; (3) web content posted by third parties on a public entity's 
website; (4) third-party web content linked from a public entity's 
website; (5) course content on a public entity's password-protected or 
otherwise secured website for admitted students enrolled in a specific 
course offered by a public postsecondary institution; (6) class or 
course content on a public entity's password-protected or otherwise 
secured website for students enrolled, or parents of students enrolled, 
in a specific class or course at a public elementary or secondary 
school; and (7) conventional electronic documents that are about a 
specific individual, their property, or their account and that are 
password-protected or otherwise secured. Additionally, there are 
certain limitations to these exceptions--situations in which the 
otherwise excepted content still must be made accessible. This proposed 
rule's exceptions as well as the limitations on those exceptions are 
explained below.
Archived Web Content
    Public entities' websites can often include a significant amount of 
archived web content, which may contain information that is outdated, 
superfluous, or replicated elsewhere. The Department's impression is 
that generally, this historic information is of interest to only a 
small segment of the general population. Still, the information may be 
of interest to some members of the public, including some individuals 
with disabilities, who are conducting research or are otherwise 
interested in these historic documents. The Department is aware and 
concerned, however, that based on current technologies, public entities 
would need to expend considerable resources to retroactively make 
accessible the large quantity of historic or otherwise outdated 
information available on public entities' websites. Thus, proposed 
Sec.  35.201(a) provides an exception from the web access requirements 
of proposed Sec.  35.200 for web content that meets the definition of 
``archived web content'' in proposed Sec.  35.104. As mentioned 
previously, proposed Sec.  35.104 defines ``archived web content'' as 
``web content that (1) is maintained exclusively for reference, 
research, or recordkeeping; (2) is not altered or updated after the 
date of archiving; and (3) is organized and stored in a dedicated area 
or areas clearly identified as being archived.''

[[Page 51967]]

The archived web content exception allows public entities to keep and 
maintain historic web content, while utilizing their resources to make 
accessible the many up-to-date materials that people need to currently 
access public services or to participate in civic life.
    The Department notes that under this exception, public entities may 
not circumvent their accessibility obligations by merely labeling their 
web content as ``archived'' or by refusing to make accessible any 
content that is old. The exception focuses narrowly on content that 
satisfies all three of the criteria necessary to qualify as ``archived 
web content,'' namely content that is maintained exclusively for 
reference, research, or recordkeeping; is not altered or updated after 
the date of archiving; and is organized and stored in a dedicated area 
or areas clearly identified as being archived. If any one of those 
criteria is not met, the content does not qualify as ``archived web 
content.'' For example, if an entity maintains content for any purpose 
other than reference, research, or recordkeeping--such as for purposes 
of offering a current service, program, or activity--then that content 
would not fall within the exception, even if an entity labeled it as 
``archived.'' Similarly, an entity would not be able to circumvent its 
accessibility obligations by rapidly moving newly posted content that 
is maintained for a purpose other than reference, research, or 
recordkeeping, or that the entity continues to update, from a non-
archived section of its website to an archived section.
    Though the Department proposes that archived web content be 
excepted from coverage under this rule, if an individual with a 
disability requests that certain archived web content be made 
accessible, public entities generally have an existing obligation to 
make these materials accessible in a timely manner and free of 
charge.\115\
---------------------------------------------------------------------------

    \115\ See, e.g., 28 CFR 35.130(b)(7)(i), (f), 35.160(b)(2).
---------------------------------------------------------------------------

    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following 
questions.
    Question 15: How do public entities currently manage content that 
is maintained for reference, research, or recordkeeping?
    Question 16: What would the impact of this exception be on people 
with disabilities?
    Question 17: Are there alternatives to this exception that the 
Department should consider, or additional limitations that should be 
placed on this exception? How would foreseeable advances in technology 
affect the need for this exception?
Preexisting Conventional Electronic Documents
    As discussed in the section-by-section analysis for proposed Sec.  
35.104 above, the Department is proposing to add a definition for 
``conventional electronic documents.'' Specifically, the proposed 
definition provides that the term ``conventional electronic documents'' 
``means web content or content in mobile apps that is in the following 
electronic file formats: portable document formats (`PDF'), word 
processor file formats, presentation file formats, spreadsheet file 
formats, and database file formats.'' This list of conventional 
electronic documents is intended to be an exhaustive list of file 
formats, rather than an open-ended list.
    Proposed Sec.  35.201(b) provides that ``conventional electronic 
documents created by or for a public entity that are available on a 
public entity's website or mobile app before the date the public entity 
is required to comply with this rule'' do not have to comply with the 
accessibility requirements of proposed Sec.  35.200, ``unless such 
documents are currently used by members of the public to apply for, 
gain access to, or participate in a public entity's services, programs, 
or activities.''
    The Department's research indicates that many websites of public 
entities contain a significant number of conventional electronic 
documents, such as comprehensive reports on water quality containing 
text, images, charts, graphs, and maps. The Department expects that 
many of these conventional electronic documents are in PDF format, but 
many conventional electronic documents are formatted as word processor 
files (e.g., Microsoft Word files), presentation files (e.g., Apple 
Keynote or Microsoft PowerPoint files), spreadsheet files (e.g., 
Microsoft Excel files), and database files (e.g., FileMaker Pro or 
Microsoft Access files).
    Because of the substantial number of conventional electronic 
documents that public entities make available on their websites and 
mobile apps, and because of the difficulty of remediating some complex 
types of information and data to make them accessible after-the-fact, 
the Department believes public entities should generally focus their 
personnel and financial resources on developing new conventional 
electronic documents that are accessible and remediating existing 
conventional electronic documents that are currently used by members of 
the public to access the public entity's services, programs, or 
activities. For example, if before the date a public entity is required 
to comply with this rule, the entity's website contains a series of 
out-of-date PDF reports on local COVID-19 statistics, those reports 
generally need not comply with WCAG 2.1. Similarly, if a public entity 
maintains decades' worth of water quality reports in conventional 
electronic documents on the same web page as its current water quality 
report, the old reports that were posted before the date the entity was 
required to comply with this rule generally do not need to comply with 
WCAG 2.1. As the public entity posts new reports going forward, 
however, those reports must comply with WCAG 2.1. This approach is 
expected to reduce the burdens on public entities.
    This exception is subject to a limitation: the exception does not 
apply to any preexisting documents that are currently used by members 
of the public to apply for, access, or participate in the public 
entity's services, programs, or activities. In referencing ``documents 
that are currently used,'' the Department intends to cover documents 
that are used by members of the public at any given point in the 
future, not just at the moment in time when this rule is published. 
This limitation includes documents that provide instructions or 
guidance. For example, a public entity must not only make an 
application for a business license accessible, but it must also make 
accessible other materials that may be needed to obtain the license, 
complete the application, understand the process, or otherwise take 
part in the program, such as business license application instructions, 
manuals, sample knowledge tests, and guides, such as ``Questions and 
Answers'' documents.
    The Department notes that a public entity may not rely on this 
``preexisting conventional electronic documents'' exception to 
circumvent its accessibility obligations by, for example, converting 
all of its web content to conventional electronic document formats and 
posting those documents before the date the entity must comply with 
this rule. As noted above, any documents that are currently used by 
members of the public to access the public entity's services, programs, 
or activities would need to be accessible as defined under this rule, 
even if those documents were posted before the date the entity was 
required to comply with the rule. And if an entity updates a 
conventional electronic document after the date the entity must

[[Page 51968]]

comply with this rule, that document would no longer qualify as 
``preexisting,'' and would thus need to be made accessible as defined 
under this rule.
    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following 
questions.
    Question 18: Where do public entities make conventional electronic 
documents available to the public? Do public entities post conventional 
electronic documents anywhere else on the web besides their own 
websites?
    Question 19: Would this ``preexisting conventional electronic 
documents'' exception reach content that is not already excepted under 
the proposed archived web content exception? If so, what kinds of 
additional content would it reach?
    Question 20: What would the impact of this exception be on people 
with disabilities? Are there alternatives to this exception that the 
Department should consider, or additional limitations that should be 
placed on this exception? How would foreseeable advances in technology 
affect the need for this exception?
Third-Party Web Content
    Public entities' websites can include or link to many different 
types of third-party content (i.e., content that is created by someone 
other than the public entity), some of which is posted by or on behalf 
of public entities and some of which is not. For example, many public 
entities' websites contain third-party web content like maps, 
calendars, weather forecasts, news feeds, scheduling tools, 
reservations systems, or payment systems. Third-party web content may 
also be posted by members of the public on a public entity's online 
message board or other sections of the public entity's website that 
allow public comment. In addition to third-party content that is posted 
on the public entity's own website, public entities frequently provide 
links to third-party content (i.e., links on the public entity's 
website to content that has been posted on another website that does 
not belong to the public entity), including links to outside resources 
and information.
    The Department has heard a variety of views regarding whether or 
not public entities should be responsible for ensuring that third-party 
content on their websites and linked third-party content are 
accessible. Some maintain that public entities cannot be held 
accountable for third-party content on their websites, and without such 
an exception, public entities may have to remove the content 
altogether. Others have suggested that public entities should not be 
responsible for third-party content and linked content unless that 
content is necessary for individuals to access public entities' 
services, programs, or activities. The Department has also previously 
heard the view, however, that public entities should be responsible for 
third-party content because an entity's reliance on inaccessible third-
party content can prevent people with disabilities from having equal 
access to the public entity's own services, programs, and activities. 
Furthermore, boundaries between web content generated by a public 
entity and by a third party are often difficult to discern.
    At this time, the Department is proposing the following two limited 
exceptions related to third-party content in Sec. Sec.  35.201(c)-(d) 
and is posing questions for public comment.
Section 35.201(c): Web Content Posted by a Third Party on a Public 
Entity's Website
    Proposed Sec.  35.201(c) provides an exception to the web 
accessibility requirements of proposed Sec.  35.200 for ``web content 
posted by a third party that is available on a public entity's 
website.''
    The Department is proposing this exception in recognition of the 
fact that individuals other than a public entity's agents sometimes 
post content on a public entity's website. For example, members of the 
public may sometimes post on a public entity's online message boards, 
wikis, social media, or other web forums, many of which are 
unregulated, interactive spaces designed to promote the sharing of 
information and ideas. Members of the public may post frequently, at 
all hours of the day or night, and a public entity may have little or 
no control over the content posted. In some cases, a public entity's 
website may include posts from third parties dating back many years, 
which are likely of limited, if any, relevance today. Because public 
entities often lack control over this third-party content, it may be 
challenging (or impossible) for them to make it accessible. Moreover, 
because this third-party content may be outdated or unrelated to a 
public entity's services, programs, and activities, there may be only 
limited benefit to requiring public entities to make this content 
accessible. Accordingly, the Department believes it is appropriate to 
create an exception for this content. However, while this exception 
applies to web content posted by third parties, it does not apply to 
the tools or platforms used to post third-party content on a public 
entity's website such as message boards--these tools and platforms are 
subject to the rule's technical standard.
    This exception applies to, among other third-party content, 
documents filed by third parties in administrative, judicial, and other 
legal proceedings that are available on a public entity's website. This 
example helps to illustrate why the Department believes this exception 
is necessary. Many public entities have either implemented or are 
developing an automated process for electronic filing of documents in 
administrative, judicial, or legal proceedings in order to improve 
efficiency in the collection and management of these documents. Courts 
and other public entities receive high volumes of filings in these 
sorts of proceedings each year. The majority of these documents are 
submitted by third parties--such as a private attorney in a legal case 
or other members of the public--and often include appendices, exhibits, 
or other similar supplementary materials that may be difficult to make 
accessible.
    However, the Department notes that public entities have existing 
obligations under title II of the ADA to ensure the accessibility of 
their services, programs, and activities.\116\ Accordingly, for 
example, if a person with a disability is a party to a case and 
requests access to inaccessible filings submitted by a third party in a 
judicial proceeding that are available on a State court's website, the 
court may need to timely provide those filings in an accessible format. 
Similarly, public entities may need to provide reasonable modifications 
to ensure that people with disabilities have access to the entities' 
services, programs, and activities. For example, if a hearing had been 
scheduled in the proceeding referenced above, the court might need to 
postpone the hearing if it did not provide the filings in an accessible 
format to the requestor in sufficient time for the requestor to review 
the documents before the scheduled hearing.
---------------------------------------------------------------------------

    \116\ 28 CFR 35.130, 35.160.
---------------------------------------------------------------------------

    Sometimes a public entity itself chooses to post content created by 
a third party on its website. This exception does not apply to content 
posted by the public entity itself, even if the content was originally 
created by a third party. For example, many public entities post third-
party content on their websites, such as calendars, scheduling tools, 
maps, reservations systems, and payment systems that were developed

[[Page 51969]]

by an outside technology company. To the extent a public entity chooses 
to rely on third-party content on its website, it must select third-
party content that meets the requirements of proposed Sec.  35.200.
    Moreover, a public entity may not delegate away its obligations 
under the ADA.\117\ Accordingly, if a public entity relies on a 
contractor or another third party to post content on the entity's 
behalf, the public entity retains responsibility for ensuring the 
accessibility of that content. For example, if a public housing 
authority relies on a third-party contractor to collect applications 
for placement on a waitlist for housing, the public housing authority 
must ensure that this content is accessible.
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    \117\ See 28 CFR 35.130(b)(1) (prohibiting discrimination 
through a contractual, licensing, or other arrangement that would 
provide an aid, benefit, or service to a qualified individual with a 
disability that is not equal to that afforded others).
---------------------------------------------------------------------------

    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following 
questions.
    Question 21: What types of third-party web content can be found on 
websites of public entities and, how would foreseeable advances in 
technology affect the need for creating an exception for this content? 
To what extent is this content posted by the public entities 
themselves, as opposed to third parties? To what extent do public 
entities delegate to third parties to post on their behalf? What degree 
of control do public entities have over content posted by third 
parties, and what steps can public entities take to make sure this 
content is accessible?
    Question 22: What would the impact of this exception be on people 
with disabilities?
Section 35.201(d): Third-Party Content Linked From a Public Entity's 
Website
    Proposed Sec.  35.201(d) provides that a public entity is not 
responsible for the accessibility of third-party web content linked 
from the public entity's website ``unless the public entity uses the 
third-party web content to allow members of the public to participate 
in or benefit from the public entity's services, programs, or 
activities.'' Many public entities' websites include links to other 
websites that contain information or resources in the community offered 
by third parties that are not affiliated with the public entity. 
Clicking on one of these links will take an individual away from the 
public entity's website to the website of a third party. Typically, the 
public entity has no control over or responsibility for a third party's 
web content or the operation of the third party's website. Accordingly, 
the public entity has no obligation to make the content on a third 
party's website accessible. For example, if for purely informational or 
reference purposes, a public university posts a series of links to 
restaurants and tourist attractions that members of the public may wish 
to visit in the surrounding area, the public entity is not responsible 
for ensuring the websites of those restaurants and tourist attractions 
are accessible.
    Proposed Sec.  35.201(d) generally allows public entities to 
provide relevant links to third-party web content that may be helpful 
without making them responsible for the third party's web content. 
However, the Department's title II regulation prohibits discrimination 
in the provision of any aid, benefit, or service provided by public 
entities directly or through contractual, licensing, or other 
arrangements.\118\ Therefore, if the public entity uses the linked 
third-party web content to allow members of the public to participate 
in or benefit from the public entity's services, programs, or 
activities, then the public entity must ensure it only links to third-
party web content that complies with the web accessibility requirements 
of proposed Sec.  35.200. This approach is consistent with public 
entities' obligation to make all of their services, programs, or 
activities accessible to the public, including those it provides 
through third parties.\119\ For example, a public entity that links to 
online payment processing websites offered by third parties to accept 
the payment of fees, parking tickets, or taxes must ensure that the 
third-party web content it links to in order for members of the public 
to pay for the public entity's services, programs, or activities 
complies with the web accessibility requirements of proposed Sec.  
35.200. In other words, if a public entity links to a website for a 
third-party payment service that the entity allows the public to use to 
pay taxes, the public entity would be using that third-party web 
content to allow members of the public to participate in its tax 
program, and the linked third-party web content would need to comply 
with this rule. Otherwise, the public entity's tax program would not be 
equally accessible to people with disabilities. Similarly, if a public 
entity links to a third-party website that processes applications for 
benefits or requests to sign up for classes or programs the public 
entity offers, the public entity is using the third party's linked web 
content to allow members of the public to participate in the public 
entity's services, programs, or activities, and the public entity must 
thus ensure that it links to only third-party web content that complies 
with the requirements of proposed Sec.  35.200.
---------------------------------------------------------------------------

    \118\ 28 CFR 35.130(b)(1).
    \119\ See 28 CFR 35.130(b)(1)(ii) (prohibiting discrimination 
through a contractual, licensing, or other arrangement that would 
provide an aid, benefit, or service to a qualified individual with a 
disability that is not equal to that afforded others).
---------------------------------------------------------------------------

    The Department believes this approach strikes the appropriate 
balance between acknowledging that public entities may not have the 
ability to make third parties' web content accessible and recognizing 
that public entities do have the ability to choose to use only third-
party content that is accessible when that content is used to allow 
members of the public to participate in or benefit from the public 
entity's services, programs, or activities.
    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following 
questions.
    Question 23: Do public entities link to third-party web content to 
allow members of the public to participate in or benefit from the 
entities' services, programs, or activities? If so, to what extent does 
the third-party web content that public entities use for that purpose 
comply with WCAG 2.1 Level AA?
    Question 24: What would the impact of this exception be on people 
with disabilities and how would foreseeable advances in technology 
affect the need for this exception?
External Mobile Apps
    Many public entities use mobile apps that are developed, owned, and 
operated by third parties, such as private companies, to allow the 
public to access the entity's services, programs, or activities. We 
will refer to these mobile apps as ``external mobile apps.'' \120\ One 
example of an external mobile app is the ``ParkMobile'' app, a private 
company's app that some cities direct the public to in order to pay for

[[Page 51970]]

parking in the city.\121\ In addition, members of the public use mobile 
apps that are operated by private companies, like the ``SeeClickFix'' 
app, to submit non-emergency service requests such as fixing a pothole 
or a streetlight.\122\
---------------------------------------------------------------------------

    \120\ In this document, we refer to web content that is created 
by someone other than a public entity as ``third-party web 
content.'' We note that we do not use ``third-party'' to describe 
mobile apps here to avoid confusion. It is our understanding that 
the term ``third-party mobile app'' appears to have a different 
meaning in the technology industry and some understand ``a third-
party app'' as an application that is provided by a vendor other 
than the manufacturer of the device or operating system provider. 
See Alice Musyoka, Third-Party Apps, Webopedia (Aug. 4, 2022), 
https://www.webopedia.com/definitions/third-party-apps/ [https://perma.cc/SBW3-RRGN].
    \121\ See ParkMobile Parking App, https://parkmobile.io [https://perma.cc/G7GY-MDFE].
    \122\ See Using Mobile Apps in Government, IBM Ctr. for the Bus. 
of Gov't, at 32-33 (2015), https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf 
[https://perma.cc/248X-8A6C].
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    At this time, the Department is not proposing to create an 
exception for public entities' use of external mobile apps (e.g., 
mobile apps operated by a third party) from proposed Sec.  35.200. We 
expect that public entities are using external mobile apps mostly to 
offer the entities' services, programs, and activities, such that 
creating an exception for these apps would not be appropriate.
    Accordingly, the Department is seeking comment and additional 
information on external mobile apps that public entities use to offer 
their services, programs, and activities. Please provide as much detail 
as possible and any applicable data, suggested alternative approaches 
or requirements, arguments, explanations, and examples in your 
responses to the following questions.
    Question 25: What types of external mobile apps, if any, do public 
entities use to offer their services, programs, and activities to 
members of the public, and how accessible are these apps? While the 
Department has not proposed an exception to the requirements proposed 
in Sec.  35.200 for public entities' use of external mobile apps, 
should the Department propose such an exception? If so, should this 
exception expire after a certain time, and how would this exception 
impact persons with disabilities?
Password-Protected Class or Course Content of Public Educational 
Institutions
    Proposed Sec.  35.201(e) and (f) provide exceptions for public 
educational institutions' password-protected class or course content 
where there is no student with a disability enrolled in the class or 
course (or, in the elementary and secondary school context, where there 
is no student enrolled in the class or course who has a parent with a 
disability) who needs the password-protected content to be made 
accessible.
    Public educational institutions, like many other public 
institutions, use their websites to provide a variety of services, 
programs, and activities to members of the public. Many of the 
services, programs, and activities on these websites are available to 
anyone. The content on these websites can include such general 
information as the academic calendar, enrollment process, admission 
requirements, school lunch menus, school policies and procedures, and 
contact information. Under the proposed regulation, all such services, 
programs, or activities available to the public on the websites of 
public educational institutions must comply with the requirements of 
proposed Sec.  35.200 unless the content is subject to a proposed 
exception.
    In addition to the information available to the general public on 
the websites of public educational institutions, the websites of many 
schools, colleges, and universities also make certain services, 
programs, and activities available to a discrete and targeted audience 
of individuals (e.g., students taking particular classes or courses or, 
in the elementary or secondary school context, parents of students 
enrolled in particular classes or courses). This information is often 
provided using a Learning Management System (``LMS'') or similar 
platform that can provide secure online access and allow the exchange 
of educational and administrative information in real time. LMSs allow 
public educational institutions and their faculty and staff to exchange 
and share information with students and parents about classes or 
courses and students' progress. For example, faculty and staff can 
create and collect assignments, post grades, provide real-time 
feedback, and share subject-specific media, documents, and other 
resources to supplement and enrich the curriculum. Parents can track 
their children's attendance, assignments, grades, and upcoming class 
events. To access the information available on these platforms, 
students (and parents in the elementary and secondary school context) 
generally must obtain a password, login credentials, or some equivalent 
from the educational institution. The discrete population that has 
access to this content may not always include a person with a 
disability. For example, a student who is blind may not have enrolled 
in a psychology course, or a parent who is deaf may not have a child 
enrolled in a particular ninth-grade world history class.
    The Department's regulatory proposal would require that the LMS 
platforms that public elementary and secondary schools, colleges, and 
universities use comply with proposed Sec.  35.200. However, subject to 
limitations, the Department is proposing an exception for password-
protected class or course content. Thus, while the LMS platform would 
need to be accessible, class or course content (such as syllabi and 
assigned readings) posted on the password-protected LMS platform would 
not need to be, except in specified circumstances. Specifically, the 
content available on password-protected websites for specific classes 
or courses would generally be excepted from the requirements of 
proposed Sec.  35.200 unless a student is enrolled in that particular 
class or course and the student (or the parent \123\ in the elementary 
and secondary school context) would be unable, because of a disability, 
to access the content posted on the password-protected website for that 
class or course. Thus, once a student with a disability (or a student 
in an elementary or secondary school with a parent with a disability) 
is enrolled in a particular class or course, the content available on 
the password-protected website for the specific class or course would 
need to be made accessible in accordance with certain compliance dates 
discussed below. This may include scenarios in which a student with a 
disability (or, in the elementary and secondary school context, a 
student whose parent has a disability) preregisters, enrolls, or 
transfers into a class or course or acquires a disability during the 
term, or when a school otherwise identifies a student in a class or 
course (or their parent in the elementary and secondary school context) 
as having a disability. The educational institution would generally be 
required to make the course content for that class or course fully 
compliant with all WCAG 2.1 Level AA success criteria, not merely the 
criteria related to that student or parent's disability. This will 
ensure that course content becomes more accessible to all students over 
time. In addition, the Department expects that it will be more 
straightforward for public entities to comply with WCAG 2.1 Level AA as 
a whole, rather than attempting to identify and isolate the WCAG 2.1 
success criteria that relate to a specific student, and then repeating 
that process for a subsequent student with a different disability.
---------------------------------------------------------------------------

    \123\ The Department notes that the term ``parent'' as used 
throughout proposed Sec.  35.201(f) is intended to include 
biological, adoptive, step-, or foster parents; legal guardians; or 
other individuals recognized under Federal or State law as having 
parental rights.
---------------------------------------------------------------------------

    The Department proposes this exception for class and course content 
based on its understanding that it would be burdensome to require 
public educational institutions to make

[[Page 51971]]

accessible all of the documents, videos, and other content that many 
instructors upload and assign via LMS websites. For instance, 
instructors may scan hard-copy documents and then upload them to LMS 
sites as conventional electronic documents. In some instances, these 
documents comprise multiple chapters from books and may be hundreds of 
pages long. Similarly, instructors may upload videos or other 
multimedia content for students to review. The Department believes that 
making all of this content accessible when students with disabilities 
(or their parents in the elementary and secondary context) are not 
enrolled in the class or course may be onerous for public educational 
institutions, but the Department also understands that it is critical 
for students and parents with disabilities to have access to needed 
course content.
    The Department believes its proposal provides a balanced approach 
by ensuring access to students with disabilities (or, in elementary and 
secondary school settings, parents with disabilities) enrolled in the 
educational institution, while recognizing that there are large amounts 
of class or course content that may not immediately need to be accessed 
by individuals with disabilities because they have not enrolled in a 
particular class or course.
    By way of analogy and as an example, under the Department's 
existing title II regulations, public educational institutions are not 
required to proactively provide accessible course handouts to all 
students in a course, but they are required to do so for a student with 
a disability who needs them to access the course content. The 
Department envisions the requirements proposed here as an online 
analogue: while public educational institutions are not required to 
proactively make all password-protected course handouts accessible, for 
example, once an institution knows that a student with a disability is 
enrolled in a course and, accordingly, needs the content to be made 
accessible, the institution must do so. The institution must also 
comply with its obligations to provide accessible course content under 
all other applicable laws, including the IDEA.
    The Department appreciates that some public educational 
institutions may find it preferable or more effective to make all class 
or course content accessible from the outset without waiting for a 
student with a disability (or, in the elementary and secondary school 
context, a student with a parent with a disability) to enroll in a 
particular class or course, and nothing in this rule would prevent 
public educational institutions from taking that approach. Even if 
public educational institutions do not take this approach, the 
Department expects that those institutions will likely need to take 
steps in advance so that they are prepared to make all class or course 
content for a particular course accessible within the required 
timeframes discussed below when there is an enrolled student with a 
disability (or, in the elementary and secondary school context, an 
enrolled student with a parent with a disability) who needs access to 
that content.
    Because the nature, operation, and structure of public elementary 
and secondary schools are different from those of public colleges and 
universities, the proposed regulation sets forth separate requirements 
for the two types of institutions.
    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following question.
    Question 26: Are there particular issues relating to the 
accessibility of digital books and textbooks that the Department should 
consider in finalizing this rule? Are there particular issues that the 
Department should consider regarding the impact of this rule on 
libraries?
Public Postsecondary Institutions: Password-Protected Web Content
    In proposed Sec.  35.201(e), the Department is considering an 
exception to the requirements proposed in Sec.  35.200 for public 
postsecondary institutions, subject to two limitations. This exception 
would provide that ``course content available on a public entity's 
password-protected or otherwise secured website for admitted students 
enrolled in a specific course offered by a public postsecondary 
institution'' would not need to comply with the web accessibility 
requirements of proposed Sec.  35.200 unless one of the two limitations 
described below applies. As used in this context, ``admitted students'' 
refers to students who have applied to, been accepted by, and are 
enrolled in a particular educational institution. These students 
include both matriculated students (i.e., students seeking a degree) 
and non-matriculated students (i.e., continuing education students or 
non-degree-seeking students). As noted above, this exception applies 
only to password-protected or otherwise secured content. Content may be 
otherwise secured if it requires some process of authentication or 
login to access the content.
    The exception is not intended to apply to password-protected 
content for classes or courses that are made available to the general 
public, or a subset thereof, without enrolling at a particular 
educational institution. Such classes or courses generally only require 
limited, if any, registration to participate. These types of classes or 
courses may sometimes be referred to as Massive Open Online Courses, or 
MOOCs. Because access to the content on these password-protected 
websites is not limited to a discrete student population within an 
educational institution but is instead widely available to the general 
public--sometimes without limits as to enrollment--any individual, 
including one with a disability, may enroll or participate at almost 
any time. Under these circumstances, the public entity must make such 
class or course content accessible from the outset of the class or 
course regardless of whether a student with a disability is known to be 
participating. The Department is interested in the public's feedback on 
this exception, and in particular the impact it may have on public 
institutions' continued use of MOOCs.
    The phrase ``enrolled in a specific course'' as used in proposed 
Sec.  35.201(e) limits the exception to password-protected course 
content for a particular course, at a particular time, during a 
particular term. For example, if a university offers a 20th-Century 
Irish Literature course at 10 a.m. that meets on Mondays, Wednesdays, 
and Fridays for the fall semester of the 2029-2030 academic year, the 
exception would apply to the password-protected course content for that 
course, subject to the limitations discussed below.
    The proposed exception in Sec.  35.201(e) would not apply to non-
course content on the public entity's password-protected website that 
is generally available to all admitted students. For example, forms for 
registering for class, applications for meal plans or housing, academic 
calendars, and announcements generally made available to all students 
enrolled in the postsecondary institution would all be required to 
comply with proposed Sec.  35.200. In addition, if a public 
postsecondary institution made course content for specific courses 
available to all admitted students on a password-protected website, 
regardless of whether students had enrolled in that specific course, 
the exception would not apply, even if such content was only made 
available for a limited time, such as within a set time frame for 
course shopping.

[[Page 51972]]

Sections 35.201(e)(1)-(2): Limitations to the Exception for Password-
Protected Course Content for Specific Courses
    As noted previously, there are two important limitations to the 
general exception for course content on password-protected websites of 
postsecondary institutions in proposed Sec.  35.201(e); both 
limitations apply to situations in which an admitted student with a 
disability is enrolled in a particular course at a postsecondary 
institution and the student, because of a disability, would be unable 
to access the content on the password-protected website for the 
specific course. The phrase ``the student, because of a disability, 
would be unable to access'' is meant to make clear that these 
limitations are not triggered merely by the enrollment of a student 
with a disability, but instead they are triggered by the enrollment of 
a student whose disability would make them unable to access the content 
on the password-protected course website. These limitations would also 
be triggered by the development or identification of such a disability 
while a student is enrolled, or the realization that a student's 
disability makes them unable to access the course content during the 
time that they are enrolled. The phrase ``unable to access'' does not 
necessarily mean a student has no access at all. Instead, the phrase 
``unable to access'' is intended to cover situations in which a 
student's disability would limit or prevent their ability to equally 
access the relevant content.
    The provisions set forth in the limitations to the exception are 
consistent with longstanding obligations of public entities under title 
II of the ADA. Public entities are already required to make appropriate 
reasonable modifications and ensure effective communication, including 
by providing the necessary auxiliary aids and services to students with 
disabilities, under the current title II regulation. It is the public 
educational institution, not the student, that is responsible for 
ensuring that it is meeting these obligations. Such institutions, 
therefore, should be proactive in addressing the access needs of 
admitted students with disabilities, including those who would be 
unable to access inaccessible course content on the web. This also 
means that when an institution knows that a student with a disability 
is unable to access inaccessible content, the institution should not 
expect or require that the student first attempt to access the 
information and be unable to do so before the institution's obligation 
to make the content accessible arises.
    Correspondingly, when an institution has notice that such a student 
is enrolled in a course, all of the content available on the password-
protected website for that course must be made accessible in compliance 
with the accessibility requirements of proposed Sec.  35.200. The 
difference between the two limitations to the exception to proposed 
Sec.  35.201(e) is the date that triggers compliance. The triggering 
event is based on when the institution knew, or should have known, that 
such a student with a disability would be enrolled in a specific course 
and would be unable to access the content available on the password-
protected website.
    The application of the limitation in proposed Sec.  35.201(e)(1) 
and (e)(2), discussed in detail below, is contingent upon the 
institution having notice both that a student with a disability is 
enrolled in a specific course and that the student cannot access the 
course content because of their disability. Once an institution is on 
notice that a student with a disability is enrolled in a specific 
course and that the student's disability would render the student 
unable to access the content available on the password-protected 
website for the specific course, the password-protected course content 
for that course must be made accessible within the time frames set 
forth in proposed Sec.  35.201(e)(1) and (e)(2), which are described in 
greater detail below.
    The first proposed limitation to the exception for postsecondary 
institutions, proposed Sec.  35.201(e)(1), would require that ``if a 
public entity is on notice that an admitted student with a disability 
is pre-registered in a specific course offered by a public 
postsecondary institution and that the student, because of a 
disability, would be unable to access the content available on the 
public entity's password-protected or otherwise secured website for the 
specific course,'' then ``all content available on the public entity's 
password-protected or otherwise secured website for the specific course 
must comply with the requirements of Sec.  35.200 by the date the 
academic term begins for that course offering. New content added 
throughout the term for the course must also comply with the 
requirements of Sec.  35.200 at the time it is added to the website.'' 
Students may register for classes and make accessibility requests ahead 
of the start of the term--often during the previous term. The 
institution therefore knows, or should know, that a student with a 
disability has registered for a particular course or notified the 
school that content must be made accessible for a particular course. 
This provision would ensure that students with disabilities have timely 
access to and equal opportunity to benefit from content available on a 
password-protected website for their particular courses.
    The second proposed limitation to the exception for postsecondary 
institutions, proposed Sec.  35.201(e)(2), applies to situations in 
which ``a public entity is on notice that an admitted student with a 
disability is enrolled in a specific course offered by a public 
postsecondary institution after the start of the academic term, and 
that the student, because of a disability, would be unable to access 
the content available on the public entity's password-protected or 
otherwise secured website for the specific course.'' In this instance, 
unlike proposed Sec.  35.201(e)(1), the postsecondary institution is 
not on notice until after the start of the academic term that a student 
is enrolled in a particular course and that the student, because of a 
disability, would be unable to access the content on the password-
protected course website. In such circumstances, all content available 
on the public entity's password-protected website for the specific 
course must comply with the requirements of proposed Sec.  35.200 
within five business days of such notice. This second limitation would 
apply to situations in which students have not pre-registered in a 
class, such as when students enroll in a class during the add/drop 
period, or where waitlisted or transfer students enroll in a class at 
the start of, or during, the academic term. This second limitation to 
the exception for postsecondary institutions would also apply to 
situations in which the institution was not on notice that the enrolled 
student had a disability and would be unable to access online course 
content until after the academic term began--because, for example, the 
student newly enrolled at the institution or was recently diagnosed 
with a disability.
    In proposing the five-day remediation requirement in this 
limitation, the Department is attempting to strike the appropriate 
balance between providing postsecondary institutions with a reasonable 
opportunity to make the content on the password-protected or otherwise 
secured website accessible and providing individuals with disabilities 
full and timely access to this information that has been made available 
to all other students in the course. The Department believes five days 
provides a reasonable opportunity to make the relevant content 
accessible in most cases, subject to the general limitations under 
proposed Sec.  35.204, entitled ``Duties.'' However, the

[[Page 51973]]

Department is interested in the public's feedback and data on whether 
this remediation requirement provides a reasonable opportunity to make 
the relevant content accessible, and whether a shorter or longer period 
would be more appropriate in most cases.
    If, for example, a public college offers a specific fall semester 
course, a student with a disability pre-registers for it and, because 
of disability, that student would be unable to access the content 
available on the password-protected website for that course, all 
content available on the institution's password-protected website for 
that specific course must comply with the requirements of proposed 
Sec.  35.200 by the date the academic semester begins for the fall 
semester (according to the first limitation). If, instead, that same 
student does not enroll in that particular course until two days after 
the start of the fall semester, all content available on the 
institution's password-protected or otherwise secured website for that 
specific course must comply with the requirements of proposed Sec.  
35.200 within five business days of notice that a student with a 
disability is enrolled in that particular course and, because of 
disability, would be unable to access the content (according to the 
second limitation).
    The exception applies to course content such as conventional 
electronic documents, multimedia content, or other course material 
``available'' on a public entity's password-protected or otherwise 
secured website. As such, the two limitations apply when that content 
is made ``available'' to students with disabilities enrolled in a 
specific course who are unable to access course content. Although a 
professor may load all of their course content on the password-
protected website at one time, they may also stagger the release of 
particular content to their students at various points in time during 
the term. It is when this content is made available to students that it 
must be made accessible in compliance with proposed Sec.  35.200.
    The two limitations to the exception for password-protected course 
content state that the limitations apply whenever ``the student, 
because of a disability, would be unable to access the content 
available on the public entity's password-protected website for the 
specific course.'' Pursuant to longstanding obligations of public 
entities under title II of the ADA, the public postsecondary 
institution must continue to take other steps necessary to timely make 
inaccessible course content accessible to an admitted student with a 
disability during the five-day period proposed in the second 
limitation, unless doing so would result in a fundamental alteration or 
undue financial and administrative burden. This could include timely 
providing alternative formats, a reader, or a notetaker for the student 
with a disability, or providing other auxiliary aids and services that 
enable the student with a disability to participate in and benefit from 
the services, programs, and activities of the public entity while the 
public entity is making the course content on the password-protected 
website accessible.
    Once the obligation is triggered to make password-protected course 
content accessible for a specific course, the obligation is ongoing for 
the duration of the course (i.e., the obligation is not limited to 
course content available at the beginning of the term). Rather, all web 
content newly added throughout the remainder of the student's 
enrollment in the course must also be accessible at the time it is made 
available to students. Furthermore, once a public postsecondary 
institution makes conventional electronic documents, multimedia 
content, or other course material accessible in accordance with the 
requirements of proposed Sec.  35.201(e)(1) or (e)(2), the institution 
must maintain the accessibility of that specific content as long as 
that content is available to students on the password-protected course 
website, in compliance with the general accessibility requirement set 
forth in proposed Sec.  35.200. However, new content added later, when 
there is no longer a student with a disability who is unable to access 
inaccessible web content enrolled in that specific course, would not 
need to be made accessible because that course-specific web content 
would once again be subject to the exception, unless and until another 
student with a disability is enrolled in that course.
    With regard to third-party content linked to from a password-
protected or otherwise secured website for a specific course, the 
exception and limitations set forth in proposed Sec.  35.201(d) apply 
to this content, even when a limitation under proposed Sec.  
35.201(e)(1) or (e)(2) has been triggered requiring all the content 
available to students on a password-protected website for a specific 
course to be accessible. Accordingly, third-party web content to which 
a public entity provides links for informational or resource purposes 
is not required to be accessible; however, if the postsecondary 
institution uses the third-party web content to allow members of the 
public to participate in or benefit from the institution's services, 
programs, or activities, then the postsecondary institution must ensure 
it links to third-party web content that complies with the web 
accessibility requirements of proposed Sec.  35.200. For example, if a 
postsecondary institution requires students to use a third-party 
website it links to on its password-protected course website to 
complete coursework, then the third-party web content must be 
accessible.
    The Department believes that this approach strikes a proper balance 
of providing necessary and timely access to course content, while not 
imposing burdens where web content is currently only utilized by a 
population of students without relevant disabilities, but it welcomes 
public feedback on whether alternative approaches might strike a more 
appropriate balance.
    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following 
questions.
    Question 27: How difficult would it be for public postsecondary 
institutions to comply with this rule in the absence of this exception?
    Question 28: What would the impact of this exception be on people 
with disabilities?
    Question 29: How do public postsecondary institutions communicate 
general information and course-specific information to their students?
    Question 30: Do public postsecondary institutions commonly provide 
parents access to password-protected course content?
    Question 31: The proposed exception and its limitations are 
confined to content on a password-protected or otherwise secured 
website for students enrolled in a specific course. Do public 
postsecondary institutions combine and make available content for 
particular groups of students (e.g., newly admitted students or 
graduating seniors) using a single password-protected website and, if 
so, should such content be included in the exception?
    Question 32: On average, how much content and what type of content 
do password-protected course websites of postsecondary institutions 
contain? Is there content posted by students or parents? Should content 
posted by students or parents be required to be accessible and, if so, 
how long would it take a public postsecondary institution to make it 
accessible?
    Question 33: How long would it take to make course content 
available on a public entity's password-protected or otherwise secured 
website for a particular course accessible, and does this vary based on 
the type of course? Do students need access to course

[[Page 51974]]

content before the first day of class? How much delay in accessing 
online course content can a student reasonably overcome in order to 
have an equal opportunity to succeed in a course, and does the answer 
change depending on the point in the academic term that the delay 
occurs?
    Question 34: To what extent do public postsecondary institutions 
use or offer students mobile apps to enable access to password-
protected course content? Should the Department apply the same 
exceptions and limitations to the exceptions under proposed Sec.  
35.201(e) and (e)(1)-(2), respectively, to mobile apps?
    Question 35: Should the Department consider an alternative 
approach, such as requiring that all newly posted course content be 
made accessible on an expedited time frame, while adopting a later 
compliance date for remediating existing content?
Public Elementary and Secondary Schools: Password-Protected Web Content
    In proposed Sec.  35.201(f), the Department is considering an 
exception to the requirements proposed in Sec.  35.200 for public 
elementary and secondary schools that would provide, subject to four 
limitations, that ``class or course content available on a public 
entity's password-protected or otherwise secured website for students 
enrolled, or parents of students enrolled, in a specific class or 
course at a public elementary or secondary school'' would not need to 
comply with the web accessibility requirements of proposed Sec.  
35.200.
    Because parents of students in elementary and secondary schools 
have greater rights, roles, and responsibilities with regard to their 
children and their children's education than in the postsecondary 
education setting, and because these parents typically interact with 
such schools much more often and in much greater depth and detail, 
parents are expressly included in both the general exception for 
password-protected web content in proposed Sec.  35.201(f) and its 
limitations.\124\ Parents use password-protected websites to access 
progress reports and grades, track homework and long-term project 
assignments, and interact regularly with their children's teachers and 
administrators.
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    \124\ The Department notes that the term ``parent'' as used 
throughout proposed Sec.  35.201(f) is intended to include 
biological, adoptive, step-, or foster parents; legal guardians; or 
other individuals recognized under Federal or State law as having 
parental rights.
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    Proposed exception Sec.  35.201(f) provides that ``class or course 
content available on a public entity's password-protected or otherwise 
secured website for students enrolled, or parents of students enrolled, 
in a specific class or course offered by a public elementary or 
secondary school'' does not need to comply with the accessibility 
requirements of proposed Sec.  35.200 unless and until a student is 
enrolled in that particular class or course and either the student or 
the parent would be unable, because of a disability, to access the 
content available on the password-protected website. As used in this 
context, ``enrolled . . . in a specific class or course'' limits the 
exception to password-protected class or course content for a 
particular class or course during a particular academic term. For 
example, content on a password-protected website for students, and 
parents of students, in a specific fifth-grade class would not need to 
be made accessible unless a student enrolled, or the parent of a 
student enrolled, in the class that term would be unable, because of a 
disability, to access the content on the password-protected website.
    The proposed exception in Sec.  35.201(f) is not intended to apply 
to password-protected content that is available to all students or 
their parents in a public elementary or secondary school. Content on 
password-protected websites that is not limited to students enrolled, 
or parents of students enrolled, in a specific class or course, but 
instead is available to all students or their parents at the public 
elementary or secondary school is not subject to the exception. For 
example, a school calendar available on a password-protected website to 
which all students or parents at a particular elementary school are 
given a password would not be subject to the exception for password-
protected web content for a specific class or course. It would, 
therefore, need to comply with the requirements of proposed Sec.  
35.200.
Sections 35.201(f)(1)-(4): Limitations to the Exception for Password-
Protected Class or Course Content
    There are four critical limitations to the general exception in 
proposed Sec.  35.201(f) for public elementary and secondary schools' 
class or course content. These limitations are identical to those 
discussed above in the postsecondary context, except that they arise 
not only when a school is on notice that a student with a disability is 
enrolled in a particular class or course and cannot access content on 
the class or course's password-protected website because of their 
disability, but also when the same situation arises for a parent with a 
disability. The discussion above of the limitations in the 
postsecondary context applies with equal force here, and a shorter 
discussion of the limitations in the elementary and secondary context 
follows. However, the Department acknowledges that there are existing 
legal frameworks specific to the public elementary and secondary 
education context which are described further in this section.
    The first limitation, in proposed Sec.  35.201(f)(1), addresses 
situations in which the public entity is on notice before the beginning 
of the academic term that a student with a disability is pre-registered 
in a specific class or course offered by a public elementary or 
secondary school, and the student, because of a disability, would be 
unable to access the content available on the public entity's password-
protected or otherwise secured website for the specific class or 
course. In such circumstances, all content available on the public 
entity's password-protected website for the specific class or course 
must comply with the requirements of proposed Sec.  35.200 by the date 
the term begins for that class or course. New content added throughout 
the term for the class or course must also comply with the requirements 
of proposed Sec.  35.200 at the time it is added to the website.
    Similarly, the second limitation, proposed Sec.  35.201(f)(2), 
addresses situations in which the pre-registered student's parent has a 
disability. Proposed Sec.  35.201(f)(2) applies when the public entity 
is on notice that a student is pre-registered in a public elementary or 
secondary school's class or course, and that the student's parent needs 
the content to be accessible because of a disability that inhibits 
access to the content available on the password-protected website for 
the specific class or course. In such circumstances, all content 
available on the public entity's password-protected website for the 
specific class or course must comply with the requirements of proposed 
Sec.  35.200 by the date the school term begins for that class or 
course. New content added throughout the term for the class or course 
must also comply with the requirements of proposed Sec.  35.200 at the 
time it is added to the website.
    The third and fourth limitations to the exception for class or 
course content on password-protected websites for particular classes or 
courses at elementary and secondary schools are similar to the first 
and second limitations but have different triggering

[[Page 51975]]

events. These limitations apply to situations in which a student is 
enrolled in a public elementary or secondary school's class or course 
after the term begins, or when a school is otherwise not on notice 
until after the term begins that there is a student or parent with a 
disability who is unable to access class or course content because of 
their disability. The third limitation, in proposed Sec.  35.201(f)(3), 
would apply once a public entity is on notice that ``a student with a 
disability is enrolled in a public elementary or secondary school's 
class or course after the term begins and that the student, because of 
a disability, would be unable to access the content available on the 
public entity's password-protected or otherwise secured website for the 
specific class or course.'' In such circumstances, all content 
available on the public entity's password-protected or otherwise 
secured website for the specific class or course must comply with the 
requirements of proposed Sec.  35.200 within five business days of such 
notice. New content added throughout the term for the class or course 
must also comply with the requirements of proposed Sec.  35.200 at the 
time it is added to the website.
    Proposed Sec.  35.201(f)(4), the fourth limitation, applies the 
same triggering event as in proposed Sec.  35.201(f)(3) to situations 
in which the student's parent has a disability. Proposed Sec.  
35.201(f)(4) would apply once a public entity is on notice that a 
student is enrolled in a public elementary or secondary school's class 
or course after the term begins, and that the student's parent needs 
the content to be accessible because of a disability that would inhibit 
access to the content available on the public entity's password-
protected website for the specific class or course. In such 
circumstances, all content available on the public entity's password-
protected or otherwise secured website for the specific class or course 
must comply with the requirements of proposed Sec.  35.200 within five 
business days of such notice. New content added throughout the term for 
the class or course must also comply with the requirements of proposed 
Sec.  35.200 at the time it is added to the website.
    The procedures for enrollment in the public elementary or secondary 
school context likely vary from the postsecondary context. Unlike in 
postsecondary institutions, public elementary and secondary schools 
generally have more autonomy and authority regarding student placement 
in a particular class or course. The student or parent generally does 
not control placement in a particular class or course. To the extent a 
parent or student has such autonomy or authority, the application of 
the limitations in proposed Sec.  35.201(f)(1) through (f)(4) is 
contingent on whether the public elementary or secondary school knows, 
or should know, that a student with a disability is enrolled, or a 
parent with a disability has a child enrolled, in a particular class or 
course, and that the student or parent would be unable to access the 
class or course content because of their disability.
    Regardless of what process a school follows for notification of 
enrollment, accessibility obligations for password-protected class or 
course content come into effect once a school is on notice that 
materials need to be made accessible under these provisions. For 
example, some schools that allow students to self-select the class or 
course in which they enroll may require students with disabilities to 
notify their guidance counselor or the special education coordinator 
each time they have enrolled in a class or course. With respect to 
parents, some schools may have a form that parents fill out as part of 
the process for enrolling a student in a school, or in a particular 
class or course in that school, indicating that they (the parent) are 
an individual with a disability who, because of their disability, needs 
auxiliary aids or services. Other schools may publicize the schools' 
responsibility to make class or course content accessible to parents 
with disabilities and explain the process for informing the school that 
they cannot access inaccessible websites. Under this rule, regardless 
of the process a school follows, once the public elementary or 
secondary school is on notice, the password-protected class or course 
content for that class or course must be made accessible within the 
time frames set forth in proposed Sec.  35.201(f)(1) through (f)(4). We 
note that the ADA would prohibit limiting assignment of students with 
disabilities only to classes for which the content has already been 
made accessible.\125\
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    \125\ See 28 CFR 35.130.
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    The Department emphasizes that in the public elementary and 
secondary school context a variety of Federal laws include robust 
protections for students with disabilities, and this rule is intended 
to build on, but not to supplant, those protections for students with 
disabilities. Public schools that receive Federal financial assistance 
already must ensure they comply with obligations under other statutes 
such as the IDEA and section 504 of the Rehabilitation Act, including 
the Department of Education's regulations implementing those statutes. 
The IDEA and section 504 already include affirmative obligations that 
covered public schools work to identify children with disabilities, 
regardless of whether the schools receive notice from a parent that a 
student has a disability, and provide a Free Appropriate Public 
Education (FAPE).\126\ The Department acknowledges that educational 
entities likely already employ procedures under those frameworks to 
identify children with disabilities and assess their educational needs. 
Under the IDEA and section 504, schools have obligations to identify 
students with the relevant disabilities that would trigger the 
limitations in proposed Sec.  35.201(f)(1) through (f)(4). The proposed 
rule would add to and would not supplant the already robust framework 
for identifying children with disabilities and making materials 
accessible. The language used in the educational exceptions and their 
limitations is not intended to replace or conflict with those existing 
procedures. In other words, regardless of the means by which schools 
identify students with the relevant disabilities here, including 
procedures developed to comply with the IDEA and section 504 
regulations, once a school is on notice that either the student or the 
parent has a disability and requires access because of that disability, 
the limitation is triggered. Further, schools should not alter their 
existing practices to wait for notice because of this rule--this rule 
does not modify existing requirements that schools must follow under 
other statutes such as the IDEA and section 504.
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    \126\ See 20 U.S.C. 1412; 34 CFR 104.32-104.33.
---------------------------------------------------------------------------

    Federal and State laws may have a process for students who are 
newly enrolled in a school and those who are returning to have their 
educational program or plan reviewed and revised annually. This 
generally would include a determination of the special education, 
related services, supplementary aids and services, program 
modifications, and supports from school personnel that the student 
needs, which under the ADA would be similar to the terms 
``modifications'' and ``auxiliary aids and services.'' However, once 
the school is on notice that the student has a disability and requires 
access because of the disability, those processes and procedures cannot 
be used to delay or avoid compliance with the time frames set forth in 
proposed Sec.  35.201(f)(1) through (f)(4). For example, if a school 
knows that a student who is blind is enrolled at the school for the 
first time over the summer, the school is then on notice that, in 
accordance with proposed

[[Page 51976]]

Sec.  35.201(f)(1), the content on the school's password-protected 
website for the class or course to which the school assigns the student 
must be accessible in compliance with the requirements of proposed 
Sec.  35.200 by the date the term begins, regardless of the timeframes 
for evaluation or the review or development of an Individualized 
Education Program or section 504 Plan.
    As in the postsecondary context, the Department believes that these 
exceptions and limitations strike a proper balance of providing 
necessary and timely access to class or course content, while not 
imposing burdens where class or course content is currently only used 
by a population of students and parents without relevant disabilities, 
but it welcomes public feedback on whether alternative approaches might 
strike a more appropriate balance.
    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following 
questions.
    Question 36: How difficult would it be for public elementary and 
secondary schools to comply with this rule in the absence of this 
exception?
    Question 37: What would the impact of this exception be on people 
with disabilities?
    Question 38: How do elementary and secondary schools communicate 
general information and class- or course-specific information to 
students and parents?
    Question 39: The proposed exception and its limitations are 
confined to content on a password-protected or otherwise secured 
website for students enrolled, or parents of students enrolled, in a 
specific class or course. Do public elementary or secondary schools 
combine and make available content for all students in a particular 
grade or certain classes (e.g., all 10th-graders in a school taking 
chemistry in the same semester) using a single password-protected 
website and, if so, should such content be included in the exception?
    Question 40: Do elementary and secondary schools have a system 
allowing a parent with a disability to provide notice of their need for 
accessible class or course content?
    Question 41: On average, how much content and what type of content 
do password-protected websites of public elementary or secondary school 
courses contain? Is there content posted by students or parents? Should 
content posted by students or parents be required to be accessible and, 
if so, how long would it take a public elementary or secondary school 
to make it accessible?
    Question 42: How long would it take to make class or course content 
available on a public entity's password-protected or otherwise secured 
website for the particular class or course accessible, and does this 
vary based on the type of course? Do parents and students need access 
to class or course content before the first day of class? How much 
delay in accessing online class or course content can a student 
reasonably overcome in order to have an equal opportunity to succeed in 
a course, and does the answer change depending on the point in the 
academic term that the delay occurs?
    Question 43: To what extent do public elementary or secondary 
schools use or offer students or parents mobile apps to enable access 
to password-protected class or course content? Should the Department 
apply the same exceptions and limitations to the exceptions under 
proposed Sec.  35.201(f) and (f)(1)-(4), respectively, to mobile apps?
    Question 44: Should the Department consider an alternative 
approach, such as requiring that all newly posted course content be 
made accessible on an expedited timeframe, while adopting a later 
compliance date for remediating existing content?
Individualized, Password-Protected Documents
    In proposed Sec.  35.201(g), the Department is considering an 
exception to the accessibility requirements of proposed Sec.  35.200 
for web-based ``[c]onventional electronic documents that are: (1) about 
a specific individual, their property, or their account; and (2) 
password-protected or otherwise secured.''
    Many public entities use the web to provide access to digital 
versions of documents for their customers, constituents, and other 
members of the public. For example, some public utility companies 
provide a website where customers can log in and view a PDF version of 
their latest bill. Similarly, many public hospitals offer a virtual 
platform where healthcare providers can send digital versions of test 
results and scanned documents to their patients. The Department 
anticipates that a public entity could have many such documents. The 
Department also anticipates that making conventional electronic 
documents accessible in this context may be difficult for public 
entities, and that in many instances, the individuals who are entitled 
to view a particular individualized document will not need an 
accessible version. However, some public entities might be able to make 
some types of documents accessible relatively easily after they make 
the template they use to generate these individualized documents 
accessible. To help better understand whether these assumptions are 
accurate, the Department asks questions for public comment below about 
what kinds of individualized, conventional electronic documents public 
entities make available, how public entities make these documents 
available to individuals, and what experiences individuals have had in 
accessing these documents.
    This proposed exception is expected to reduce the burdens on public 
entities. The Department expects that making such documents accessible 
for every individual, regardless of whether they need such access, 
could be too burdensome and would not deliver the same benefit to the 
public as a whole as if the public entity were to focus on making other 
types of web content accessible. The Department expects that it would 
generally be more impactful for public entities to focus resources on 
making documents accessible for those individuals who actually need the 
documents to be accessible. It is the Department's understanding that 
making conventional electronic documents accessible is generally a more 
time- and resource- intensive process than making other types of web 
content accessible. As discussed below, public entities must still 
provide accessible versions of individualized, password-protected 
conventional electronic documents in a timely manner when those 
documents pertain to individuals with disabilities. This approach is 
consistent with the broader title II regulatory framework. For example, 
public utility companies are not required to provide accessible bills 
to all customers. Instead, the companies need only provide accessible 
bills to those customers who need them because of a disability.
    This exception is limited to ``conventional electronic documents'' 
as defined in proposed Sec.  35.104. This exception would, therefore, 
not apply in a case where a public entity makes individualized 
information available in formats other than a conventional electronic 
document. For example, if a public utility makes individualized bills 
available on a password-protected web platform as HTML content (rather 
than a PDF), that content would not be subject to this exception. Such 
bills, therefore, would need to be made accessible in accordance with 
proposed Sec.  35.200. On the other hand, if a public entity makes 
individualized bills

[[Page 51977]]

available on a password-protected web platform in PDF form, that 
content would be excepted from the accessibility requirements of 
proposed Sec.  35.200, subject to the limitation discussed in further 
detail below.
    This exception also only applies when the content is individualized 
for a specific person or their property or account. Examples of 
individualized documents include medical records or notes about a 
specific patient, receipts for purchases (like a parent's receipt for 
signing a child up for a recreational sports league), utility bills 
concerning a specific residence, or Department of Motor Vehicles 
records for a specific person or vehicle. Content that is broadly 
applicable or otherwise for the general public (i.e., not 
individualized) is not subject to this exception. For instance, a PDF 
notice that explains an upcoming rate increase for all utility 
customers and is not addressed to a specific customer would not be 
subject to this exception. Such a general notice would not be subject 
to this exception even if it were attached to or sent with an 
individualized letter, like a bill, that is addressed to a specific 
customer.
    Finally, this exception applies only to password-protected or 
otherwise secured content. Content may be otherwise secured if it 
requires some process of authentication or login to access the content. 
Unless subject to another exception, conventional electronic documents 
that are on a public entity's general, public web platform would not be 
excepted.
    This proposed exception for individualized, password-protected 
conventional electronic documents has certain limitations. While the 
exception is meant to alleviate the burden on public entities of making 
all individualized, password-protected or otherwise secured 
conventional electronic documents generally accessible, people with 
disabilities must still be able to access information from documents 
that pertain to them. An accessible version of these documents must be 
provided in a timely manner.\127\ A public entity might also need to 
make reasonable modifications to ensure that a person with a disability 
has equal access to its services, programs, or activities.\128\ For 
example, if a person with a disability requests access to an 
inaccessible bill from a county hospital, the hospital may need to 
extend the payment deadline and waive any late fees if the hospital 
does not provide the bill in an accessible format in sufficient time 
for the person to review the bill before payment is due.
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    \127\ See 28 CFR 35.160(b)(2).
    \128\ See 28 CFR 35.130(b)(7)(i).
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    As in other situations involving a public entity's effective 
communication obligations--for example, when providing an American Sign 
Language interpreter--this exception and its accompanying limitation 
would also apply to the parent, spouse, or companion of the person 
receiving the public entity's services in appropriate 
circumstances.\129\
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    \129\ See ADA Requirements: Effective Communication, U.S. Dep't 
of Just. (updated Feb. 28, 2020), https://www.ada.gov/effective-comm.htm [https://perma.cc/W9YR-VPBP].
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    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following 
questions.
    Question 45: What kinds of individualized, conventional electronic 
documents do public entities make available and how are they made 
available (e.g., on websites or mobile apps)? How difficult would it be 
to make such documents accessible? How do people with disabilities 
currently access such documents?
    Question 46: Do public entities have adequate systems for receiving 
notification that an individual with a disability requires access to an 
individualized, password-protected conventional electronic document? 
What kinds of burdens do these notification systems place on 
individuals with disabilities and how easy are these systems to access? 
Should the Department consider requiring a particular system for 
notification or a particular process or timeline that entities must 
follow when they are on notice that an individual with a disability 
requires access to such a document?
    Question 47: What would the impact of this exception be on people 
with disabilities?
    Question 48: Which provisions of this rule, including any 
exceptions (e.g., the exceptions for individualized, password-protected 
conventional electronic documents and content posted by a third party), 
should apply to mobile apps?
Sec.  35.202 Conforming Alternate Versions
    Generally, to meet the WCAG 2.1 standard, a web page must satisfy 
one of the defined levels of conformance--in the case of this proposed 
rule, Level AA.\130\ However, WCAG 2.1 allows for the creation of a 
``conforming alternate version,'' a separate web page that is 
accessible, up-to-date, contains the same information and functionality 
as the inaccessible web page, and can be reached via a conforming page 
or an accessibility-supported mechanism.\131\ The ostensible purpose of 
a ``conforming alternate version'' is to provide individuals with 
relevant disabilities access to the information and functionality 
provided to individuals without relevant disabilities, albeit via a 
separate vehicle.
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    \130\ See W3C[supreg], Web Content Accessibility Guidelines 2.1 
(June 5, 2018), https://www.w3.org/TR/WCAG21/#cc1 [https://perma.cc/ZL6N-VQX4].
    \131\ See W3C[supreg], Web Content Accessibility Guidelines 2.1, 
Conforming Alternate Version (June 5, 2018), https://www.w3.org/TR/WCAG21/#dfn-conforming-alternate-version [https://perma.cc/5NJ6-UZPV].
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    Having direct access to an accessible web page provides the best 
user experience for many individuals with disabilities, and it may be 
difficult for public entities to reliably maintain conforming alternate 
versions, which must be kept up to date. Accordingly, the W3C[supreg] 
explains that providing a conforming alternate version of a web page is 
intended to be a ``fallback option for conformance to WCAG and the 
preferred method of conformance is to make all content directly 
accessible.'' \132\ However, WCAG 2.1 does not explicitly limit the 
circumstances under which an entity may choose to create a conforming 
alternate version of a web page instead of making the web page directly 
accessible.
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    \132\ See W3C[supreg], Understanding Conformance (last updated 
Dec. 24, 2022), https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/Q2XU-K4YY].
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    The Department is concerned that WCAG 2.1 can be interpreted to 
permit the development of two separate websites--one for individuals 
with relevant disabilities and another for individuals without relevant 
disabilities--even when doing so is unnecessary and when users with 
disabilities would have a better experience using the main web page. 
This segregated approach is concerning and appears inconsistent with 
the ADA's core principles of inclusion and integration.\133\ The 
Department is also concerned that the creation of separate websites for 
individuals with disabilities may, in practice, result in unequal 
access to information and

[[Page 51978]]

functionality. However, as the W3C[supreg] explains, certain limited 
circumstances may warrant the use of conforming alternate versions of 
web pages. For example, a conforming alternate version of a web page 
may be necessary when a new, emerging technology is used on a web page, 
but the technology is not yet capable of being made accessible, or when 
a website owner is legally prohibited from modifying the web 
content.\134\
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    \133\ See, e.g., 42 U.S.C. 12101(a)(2) (finding that ``society 
has tended to isolate and segregate individuals with 
disabilities''); 28 CFR 35.130(b)(1)(iv) (stating that public 
entities generally may not ``[p]rovide different or separate aids, 
benefits, or services to individuals with disabilities . . . than is 
provided to others unless such action is necessary[.]''); 35.130(d) 
(requiring that public entities administer services, programs, and 
activities in ``the most integrated setting appropriate'').
    \134\ See W3C[supreg], Understanding WCAG 2.0 (Oct. 7, 2016), 
https://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-conforming-alt-versions-head [https://perma.cc/DV5L-RJUG].
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    Due to the concerns about user experience, segregation of users 
with disabilities, unequal access to information, and maintenance 
burdens discussed above, the Department is proposing to adopt a 
slightly different approach to ``conforming alternate versions'' than 
that provided under WCAG 2.1. Instead of permitting entities to adopt 
``conforming alternate versions'' whenever they believe this is 
appropriate, proposed Sec.  35.202 makes it clear that use of 
conforming alternate versions of websites and web content to comply 
with the Department's proposed requirements in Sec.  35.200 is 
permissible only where it is not possible to make websites and web 
content directly accessible due to technical limitations (e.g., 
technology is not yet capable of being made accessible) or legal 
limitations (e.g., web content is protected by copyright). Conforming 
alternate versions should be used rarely--when it is truly not possible 
to make the content accessible for reasons beyond the public entity's 
control. For example, a conforming alternate version would not be 
permissible due to technical limitations just because a town's web 
developer lacked the knowledge or training needed to make content 
accessible. By contrast, the town could use a conforming alternate 
version if its website included a new type of technology that it is not 
yet possible to make accessible, such as a specific kind of immersive 
virtual reality environment. Similarly, a town would not be permitted 
to claim a legal limitation because its general counsel failed to 
approve contracts for a web developer with accessibility experience. 
Instead, a legal limitation would apply when the inaccessible content 
itself could not be modified for legal reasons specific to that 
content, such as lacking the right to alter the content or needing to 
maintain the content as it existed at a particular time due to pending 
litigation. The Department believes this approach is appropriate 
because it ensures that, whenever possible, people with disabilities 
have access to the same web content that is available to people without 
disabilities. However, proposed Sec.  35.202 does not prohibit public 
entities from providing alternate versions of web pages in addition to 
their accessible main web page to possibly provide users with certain 
types of disabilities a better experience.
    In addition to allowing conforming alternate versions to be used 
where it is not possible to make websites and web content directly 
accessible due to technical or legal limitations, this proposed 
rulemaking also incorporates general limitations if public entities can 
demonstrate that full compliance with proposed Sec.  35.200 would 
result in a fundamental alteration in the nature of a service, program, 
or activity or in undue financial and administrative burdens.\135\ If 
an action would result in such an alteration or such burdens, a public 
entity shall take any other action that would not result in such an 
alteration or such burdens but would nevertheless ensure that 
individuals with disabilities receive the benefits or services provided 
by the public entity to the maximum extent possible.\136\ One way in 
which public entities could fulfill their obligation to provide the 
benefits or services to the maximum extent possible, in the rare 
instance when they can demonstrate that full compliance would result in 
a fundamental alteration or undue burden, is through creating 
conforming alternate versions.
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    \135\ See proposed Sec.  35.204.
    \136\ See id.
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    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following 
questions.
    Question 49: Would allowing conforming alternate versions due to 
technical or legal limitations result in individuals with disabilities 
receiving unequal access to a public entity's services, programs, and 
activities?
Sec.  35.203 Equivalent Facilitation
    Proposed Sec.  35.203 provides that nothing prevents a public 
entity from using designs, methods, or techniques as alternatives to 
those prescribed in the proposed regulation, provided that such 
alternatives result in substantially equivalent or greater 
accessibility and usability. The 1991 and 2010 ADA Standards for 
Accessible Design both contain an equivalent facilitation 
provision.\137\ However, for purposes of proposed subpart H, the reason 
for allowing for equivalent facilitation is to encourage flexibility 
and innovation by public entities while still ensuring equal or greater 
access to web and mobile content. Especially in light of the rapid pace 
at which technology changes, this proposed provision is intended to 
clarify that public entities can use methods or techniques that provide 
equal or greater accessibility than this proposed rule would require. 
For example, if a public entity wanted to conform its website or mobile 
app to WCAG 2.1 Level AAA--which includes all the Level AA requirements 
plus some additional requirements for even greater accessibility--this 
provision makes clear that the public entity would be in compliance 
with this rule. A public entity could also choose to comply with this 
rule by conforming its website to WCAG 2.2 or WCAG 3.0, so long as the 
version and conformance level of those guidelines that the entity 
selects includes all of the WCAG 2.1 Level AA requirements. The 
Department believes that this proposed provision offers needed 
flexibility for entities to provide usability and accessibility that 
meet or exceed what this rule would require as technology continues to 
develop. The responsibility for demonstrating equivalent facilitation 
rests with the public entity.
---------------------------------------------------------------------------

    \137\ See 28 CFR pt. 36, app. D, at 1000 (1991); 36 CFR pt. 
1191, app. B at 329.
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Sec.  35.204 Duties
    Section 35.204 sets forth the general limitations on the 
obligations under subpart H. Proposed Sec.  35.204 provides that in 
meeting the accessibility requirements set out in this subpart, a 
public entity is not required to take any action that would result in a 
fundamental alteration in the nature of a service, program, or activity 
or in undue financial and administrative burdens. These proposed 
limitations on a public entity's duty to comply with the proposed 
regulatory provisions mirror the fundamental alteration and undue 
burden compliance limitations currently provided in the title II 
regulation in 28 CFR 35.150(a)(3) (program accessibility) and 35.164 
(effective communication), and the fundamental alteration compliance 
limitation currently provided in the title II regulation in 28 CFR 
35.130(b)(7) (reasonable modifications in policies, practices, or 
procedures). These limitations are thus familiar to public entities.
    Generally, the Department believes it would not constitute a 
fundamental

[[Page 51979]]

alteration of a public entity's services, programs, or activities to 
modify web content or mobile apps to make them accessible, though the 
Department seeks the public's input on this view. Moreover, like the 
undue burden and fundamental alteration limitations in the title II 
regulation referenced above, proposed Sec.  35.204 does not relieve a 
public entity of all obligations to individuals with disabilities. 
Although a public entity under this proposed rule is not required to 
take actions that would result in a fundamental alteration in the 
nature of a service, program, or activity or in undue financial and 
administrative burdens, it nevertheless must comply with the 
requirements of this subpart to the extent that compliance does not 
result in a fundamental alteration or undue financial and 
administrative burdens. For instance, a public entity might determine 
that full WCAG 2.1 Level AA compliance would result in a fundamental 
alteration or undue financial and administrative burdens. However, this 
same public entity must then determine whether it can take any other 
action that would not result in such an alteration or such burdens, but 
would nevertheless ensure that individuals with disabilities receive 
the benefits or services provided by the public entity to the maximum 
extent possible. To the extent that the public entity can, it must do 
so. This may include the public entity's bringing its web content into 
compliance with some of the WCAG 2.1 Level A or Level AA success 
criteria.
    It is the Department's view that most entities that choose to 
assert a claim that full compliance with the proposed web or mobile app 
accessibility requirements would result in undue financial and 
administrative burdens will be able to attain at least partial 
compliance. The Department believes that there are many steps a public 
entity can take to comply with WCAG 2.1 that should not result in undue 
financial and administrative burdens, depending on the particular 
circumstances.
    In determining whether an action would result in undue financial 
and administrative burdens, all of a public entity's resources 
available for use in the funding and operation of the service, program, 
or activity should be considered. The burden of proving that compliance 
with proposed Sec.  35.204 would fundamentally alter the nature of a 
service, program, or activity, or would result in undue financial and 
administrative burdens, rests with the public entity. As the Department 
has consistently maintained since promulgation of the title II 
regulation in 1991, the decision that compliance would result in a 
fundamental alteration or impose undue burdens must be made by the head 
of the public entity or their designee, and must be memorialized with a 
written statement of the reasons for reaching that conclusion.\138\ The 
Department has always recognized the difficulty public entities have in 
identifying the official responsible for this determination, given the 
variety of organizational structures within public entities and their 
components.\139\ The Department has made clear that ``the determination 
must be made by a high level official, no lower than a Department head, 
having budgetary authority and responsibility for making spending 
decisions.'' \140\
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    \138\ 28 CFR 35.150(a)(3), 35.164.
    \139\ 28 CFR pt. 35, app. B, at 708 (2022).
    \140\ Id.
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    Where a public entity cannot bring web content or a mobile app into 
compliance without a fundamental alteration or an undue burden, it must 
take other steps to ensure that individuals with disabilities receive 
the benefits or services provided by the public entity to the maximum 
extent possible.
    Once a public entity has complied with the web or mobile app 
accessibility requirements set forth in subpart H, it is not required 
by title II of the ADA to make further modifications to its web or 
mobile app content to accommodate an individual who is still unable to 
access, or does not have equal access to, the web or mobile app content 
due to their disability. However, it is important to note that 
compliance with this ADA title II rule will not alleviate title II 
entities of their distinct employment-related obligations under title I 
of the ADA. The Department realizes that the proposed rule is not going 
to meet the needs of and provide access to every individual with a 
disability, but believes that setting a consistent and enforceable web 
accessibility standard that meets the needs of a majority of 
individuals with disabilities will provide greater predictability for 
public entities, as well as added assurance of accessibility for 
individuals with disabilities.
    Fully complying with the web and mobile app accessibility 
requirements set forth in subpart H means that a public entity is not 
required by title II of the ADA to make any further modifications to 
its web or mobile app content. This is consistent with the approach the 
Department has taken in the context of physical accessibility, where a 
public entity is not required to exceed the applicable design 
requirements of the ADA Standards if certain wheelchairs or other 
power-driven mobility devices exceed those requirements.\141\ However, 
if an individual with a disability, on the basis of disability, cannot 
access or does not have equal access to a service, program, or activity 
through a public entity's web content or mobile app that conforms to 
WCAG 2.1 Level AA, the public entity still has an obligation to provide 
the individual an alternative method of access to that service, 
program, or activity unless the public entity can demonstrate that 
alternative methods of access would result in a fundamental alteration 
in the nature of a service, program, or activity or in undue financial 
and administrative burdens.\142\ Thus, just because an entity is in 
full compliance with this rule's web or mobile app accessibility 
standard does not mean it has met all of its obligations under the ADA 
or other applicable laws. Even though no further changes to a public 
entity's web or mobile app content are required by title II of the ADA, 
a public entity must still take other steps necessary to ensure that an 
individual with a disability who, on the basis of disability, is unable 
to access or does not have equal access to the service, program, or 
activity provided by the public entity through its accessible web 
content or mobile app can obtain access through other effective means. 
The entity must still satisfy its general obligations to provide 
effective communication, reasonable modifications, and an equal 
opportunity to participate in or benefit from the entity's services 
using methods other than its website or mobile app.\143\ Of course, an 
entity may also choose to further modify its web or mobile app content 
to make that content more accessible or usable than this subpart 
requires.
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    \141\ See 28 CFR pt. 35, app. A, at 626 (2022).
    \142\ See, e.g., 28 CFR 35.130(b)(1)(ii), (b)(7), 35.160.
    \143\ See 28 CFR 35.130(b)(1)(ii), (b)(7), 35.160.
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    The public entity must determine on a case-by-case basis how best 
to accommodate those individuals who cannot access the service, 
program, or activity provided through the public entity's fully 
compliant web content or mobile app. A public entity should refer to 28 
CFR 35.160 (effective communication) to determine its obligations to 
provide individuals with disabilities with the appropriate auxiliary 
aids and services necessary to afford them an equal opportunity to 
participate in, and enjoy the benefits of, the public entity's service, 
program, or activity. A public entity should refer to 28 CFR 
35.130(b)(7) (reasonable modifications) to determine its

[[Page 51980]]

obligations to provide reasonable modifications in policies, practices, 
or procedures to avoid discrimination on the basis of disability. It is 
helpful to provide individuals with disabilities with information about 
how to obtain the modifications or auxiliary aids and services they may 
need. The Department therefore strongly recommends that the public 
entity provide notice to the public on how an individual who cannot use 
the web content or mobile app because of a disability can request other 
means of effective communication or reasonable modifications in order 
to access the public entity's services, programs, or activities that 
are being provided through the web content or mobile app. The 
Department also strongly recommends that the public entity provide an 
accessibility statement that tells the public how to bring web or 
mobile app accessibility problems to the public entity's attention, and 
that public entities consider developing and implementing a procedure 
for reviewing and addressing any such issues raised. For example, a 
public entity is encouraged to provide an email address, accessible 
link, accessible web page, or other accessible means of contacting the 
public entity to provide information about issues individuals with 
disabilities may encounter accessing web or mobile app content or to 
request assistance.\144\ Providing this information will help public 
entities to ensure that they are satisfying their obligations to 
provide equal access, effective communication, and reasonable 
modifications.
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    \144\ See W3C[supreg], Developing an Accessibility Statement 
(Mar. 11, 2021), https://www.w3.org/WAI/planning/statements/ 
[https://perma.cc/85WU-JTJ6].
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V. Additional Issues for Public Comment

A. Measuring Compliance

    As discussed above, the Department is proposing to adopt specific 
standards for public entities to use to ensure that their web content 
and mobile apps are accessible to individuals with disabilities. 
Proposed Sec.  35.200(a) requires public entities to ensure that any 
web content and mobile apps that they make available to members of the 
public or use to offer services, programs, and activities to members of 
the public are readily accessible to and usable by individuals with 
disabilities. Proposed Sec.  35.200(b) sets forth the specific 
technical requirements in WCAG 2.1 Level AA with which public entities 
must comply unless compliance results in a fundamental alteration in 
the nature of a service, program, or activity or undue financial and 
administrative burdens. Now that the Department is proposing requiring 
public entities to comply with a specific technical standard for web 
accessibility, it seeks to craft a framework for determining when an 
entity has complied with that standard. The framework will ensure the 
full and equal access to which individuals with disabilities are 
entitled, while setting forth obligations that will be achievable for 
public entities.
1. Existing Approaches to Defining and Measuring Compliance
a. Federal and International Approaches
    The Department is aware of two Federal agencies that have 
implemented requirements for complying with technical standards for web 
accessibility. Each agency has taken a different approach to defining 
what it means to comply with its regulation. As discussed above, for 
Federal agency websites covered by section 508, the Access Board 
requires conformance with WCAG 2.0 Level A and Level AA.\145\ In 
contrast, in its regulation on accessibility of air carrier websites, 
the Department of Transportation took a tiered approach that did not 
require all web content to conform to a technical standard before the 
first compliance date.\146\ Instead, the Department of Transportation 
required those web pages associated with ``core air travel services and 
information'' to conform to a technical standard first, while other 
types of content could come into conformance later.\147\ The Department 
of Transportation also required air carriers to consult with members of 
the disability community to test, and obtain feedback about, the 
usability of their websites.\148\
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    \145\ 36 CFR 1194.1; id. part 1194, app. A (E205.4).
    \146\ 14 CFR 382.43(c)(1).
    \147\ Id.
    \148\ Id. 382.43(c)(2).
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    International laws appear to have taken different approaches to 
evaluating compliance, though it is unclear which, if any, would be 
feasible within the system of government in the United States and the 
Department's authority under the ADA. For example, the European Union 
has crafted a detailed monitoring methodology that specifies protocols 
for member States to sample, test, and report on accessibility of 
government websites and mobile apps.\149\ Canada has established a 
reporting framework for the specific Federal departments covered by its 
web accessibility standard and may impose a range of corrective 
actions, depending on how conformant a website is with a technical 
standard, measured as a percentage.\150\ New Zealand has developed a 
self-assessment methodology for government agencies that combines 
automated and manual testing and requires agencies to conduct a 
detailed risk assessment and develop a plan for addressing 
nonconformance over time.\151\ In the United Kingdom, a government 
agency audits a sample of public sector websites and mobile apps (i.e., 
websites and mobile apps of central government, local government 
organizations, some charities, and some other non-governmental 
organizations) every year, using both manual and automated testing, 
following a priority order for auditing that is based on the ``social 
impact (for example size of population covered, or site or service 
usage) and complaints received.'' \152\ The auditing agency then sends 
a report to the public entity, requires the entity to fix accessibility 
issues within 12 weeks, and refers the matter to an enforcement agency 
after that time frame has passed and the website or app has been 
retested.\153\
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    \149\ Commission Implementing Decision (EU) 2018/1524 (Dec. 10, 
2018), https://eur-lex.europa.eu/eli/dec_impl/2018/1524/oj [https://perma.cc/5M7B-SVP9].
    \150\ Government of Canada, Standard on Web Accessibility (Aug. 
1, 2011), https://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=23601&section=html [https://perma.cc/ZU5D-CPQ7].
    \151\ New Zealand Government, 2017 Web Standards Self-
Assessments Report (July 2018), https://www.digital.govt.nz/dmsdocument/97-2017-web-standards-self-assessments-report/html 
[https://perma.cc/3TQ3-2L9L]; New Zealand Government, Web Standards 
Risk Assessment (Oct. 19, 2020), https://www.digital.govt.nz/standards-and-guidance/nz-government-web-standards/risk-assessment/ 
[https://perma.cc/N3GJ-VK7X]; New Zealand Government, About the Web 
Accessibility Standard (Mar. 3, 2022), https://www.digital.govt.nz/standards-and-guidance/nz-government-web-standards/web-accessibility-standard-1-1/about-2/ [https://perma.cc/GPR4-QJ29].
    \152\ United Kingdom, Understanding accessibility requirements 
for public sector bodies (Aug. 22, 2022), https://www.gov.uk/guidance/accessibility-requirements-for-public-sector-websites-and-apps; United Kingdom, Public sector website and mobile application 
accessibility monitoring (Nov. 1, 2022), https://www.gov.uk/guidance/public-sector-website-and-mobile-application-accessibility-monitoring. A Perma archive link was unavailable for these 
citations.
    \153\ United Kingdom, Public sector website and mobile 
application accessibility monitoring (Dec. 6, 2021), https://www.gov.uk/guidance/public-sector-website-and-mobile-application-accessibility-monitoring. A Perma archive link was unavailable for 
this citation.
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b. State Governments' Approaches
    Within the United States, different public entities have taken 
different approaches to measuring compliance with a technical standard 
under State laws. For example, Florida,\154\

[[Page 51981]]

Illinois,\155\ and Massachusetts \156\ seem to simply require 
conformance, without specifying how compliance will be measured or how 
entities can demonstrate compliance with this requirement. California 
requires the director of each State agency to certify compliance with 
technical standards and post a certification form on the agency's 
website.\157\ California also provides assessment checklists for its 
agencies and guidelines for sampling and testing, including 
recommending that agencies use analytics data to conduct thorough 
testing on frequently used pages.\158\ Minnesota requires compliance 
with a technical standard, provides accessibility courses and other 
resources, and notes the importance of both automated and manual 
testing; it also states that ``[f]ew systems are completely 
accessible,'' and that ``[t]he goal is continuous improvement.'' \159\ 
Texas law requires State agencies to, among other steps, comply with a 
technical standard, conduct tests with one or more accessibility 
validation tools, establish an accessibility policy that includes 
criteria for compliance monitoring and a plan for remediation of 
noncompliant items, and establish goals and progress measurements for 
accessibility.\160\ Texas has also developed an automated accessibility 
scanning tool and offers courses on web accessibility.\161\
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    \154\ Fla. Stat. 282.603 (2023).
    \155\ 30 Ill. Comp. Stat. 587 (2023); Illinois Information 
Technology Accessibility Act (Mar. 18, 2022), https://www.dhs.state.il.us/page.aspx?item=32765. A Perma archive link was 
unavailable for the second citation.
    \156\ Commonwealth of Massachusetts, Enterprise Information 
Technology Accessibility Policy (July 28, 2021), https://www.mass.gov/policy-advisory/enterprise-information-technology-accessibility-policy [https://perma.cc/8293-HXUA].
    \157\ Cal. Gov't Code 11546.7.
    \158\ Department of Rehabilitation, website Accessibility 
Requirements and Assessment Checklists, https://www.dor.ca.gov/Home/WebRequirementsAndAssessmentChecklists [https://perma.cc/JAS9-Q343].
    \159\ Minnesota IT Services, Guidelines for Accessibility and 
Usability of Information Technology Standard (Apr. 17, 2018), 
https://mn.gov/mnit/assets/accessibility-guidelines-2018_tcm38-336072.pdf [https://perma.cc/Q9P5-NGMT].
    \160\ 1 Tex. Admin. Code 206.50, 213.21.
    \161\ Texas Department of Information Resources, EIR 
Accessibility Tools & Training, https://dir.texas.gov/electronic-information-resources-eir-accessibility/eir-accessibility-tools-
training [https://perma.cc/A5LC-ZTST].
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c. Other Approaches to Defining and Measuring Compliance
    The Department understands that businesses open to the public, 
which are subject to title III of the ADA, have, like public entities, 
taken different approaches to web accessibility. These approaches may 
include collecting feedback from users with disabilities about 
inaccessible websites or mobile apps or relying on external consultants 
to conduct periodic testing and remediation. Other businesses may have 
developed detailed internal policies and practices that require 
comprehensive automated and manual testing, including testing by people 
with disabilities, on a regular basis throughout their digital content 
development and quality control processes. Some businesses have also 
developed policies that include timelines for remediation of any 
accessibility barriers; these policies may establish different 
remediation time frames for different types of barriers.
2. Challenges of Defining and Measuring Compliance With This Rule
    The Department recognizes that it must move forward with care, 
weighing the interests of all stakeholders, so that as accessibility 
for individuals with disabilities is improved, innovation in the use of 
the web or mobile apps by public entities is not hampered. The 
Department appreciates that the dynamic nature of web content and 
mobile apps presents unique challenges in measuring compliance. For 
example, as discussed further below, this type of content can change 
frequently and assessment of conformance can be complex or subjective. 
Therefore, the Department is seeking public input on issues concerning 
how compliance should be measured, which the Department plans to 
address in its final rule.
    The Department is concerned that the type of compliance measures it 
currently uses in the ADA, such as the one used to assess compliance 
with the ADA Standards, may not be practical in the web or mobile app 
context. Public entities must ensure that newly designed and 
constructed State and local government facilities are in full 
compliance with the scoping and technical specifications in the ADA 
Standards unless full compliance is structurally impracticable.\162\ 
The ADA Standards require newly constructed State or local government 
buildings to be 100 percent compliant at all times with the applicable 
provisions, subject to limited compliance limitations. However, unlike 
buildings, public entities' websites and mobile apps are dynamic and 
interconnected, and can contain a large amount of complex, highly 
technical, varied, and frequently changing content. Accordingly, the 
Department is concerned that a compliance measure similar to the one 
used in the other area where it has adopted specific technical 
standards may not work well for web content or mobile apps.
---------------------------------------------------------------------------

    \162\ 28 CFR 35.151(a), (c).
---------------------------------------------------------------------------

    If web content or mobile apps are updated frequently, full 
conformance with a technical standard after the compliance date may be 
difficult or impossible to maintain at all times. The Department is 
aware that even when a public entity understands its accessibility 
obligations, is committed to maintaining an accessible website, and 
intends to conform with WCAG 2.1 Level AA, the dynamic and complex 
nature of web content is such that full conformance may not always be 
achieved successfully. The Department is seeking public comment about 
whether a different framework for measuring compliance may be needed to 
address the difficulty that public entities may have in achieving 100 
percent conformance with a technical standard, 100 percent of the time. 
Though title II does not prohibit isolated or temporary interruptions 
in service or access due to maintenance or repairs,\163\ it is possible 
that websites or mobile apps could be undergoing maintenance or repair 
almost constantly, such that this compliance limitation is not readily 
transferrable to web or mobile app accessibility.
---------------------------------------------------------------------------

    \163\ See 28 CFR 35.133(b).
---------------------------------------------------------------------------

    The Department also appreciates the serious impact that a failure 
to comply with WCAG 2.1 Level AA can have on people with disabilities. 
For example, if a person who has limited manual dexterity and uses 
keyboard navigation is trying to apply for public benefits, and the 
``submit'' button on the form is not operable using the keyboard, that 
person will not be able to apply independently for benefits online, 
even if the rest of the website is fully accessible. A person who is 
blind and uses a screen reader may not be able to make an appointment 
at a county health clinic if an element of the clinic's appointment 
calendar is not coded properly. Nearly all of a public entity's web 
content could conform with the WCAG 2.1 Level AA success criteria, but 
one instance of nonconformance could still prevent someone from 
accessing services on the website. People with disabilities must be 
able to access the many important government services, programs, and 
activities that are offered through web content and mobile apps on 
equal terms, without sacrificing their privacy, dignity, or 
independence. The Department's concern about the many barriers to full 
and equal participation in civic life that inaccessible web content can 
pose for

[[Page 51982]]

people with disabilities is an important motivating factor behind the 
Department's decision to propose requiring compliance with a technical 
standard. By clarifying what compliance with a technical standard 
means, the Department seeks to enhance the impact this requirement will 
have on the daily lives of people with disabilities by helping public 
entities to understand their obligations, thereby increasing 
compliance.
    An additional challenge to specifying what it means to comply with 
a technical standard for web accessibility is that, unlike the physical 
accessibility required by the ADA Standards, which can be objectively 
and reliably assessed with one set of tools, different automated 
testing tools may provide different assessments of the same website's 
accessibility. For example, using different web browsers with different 
testing tools or assistive technology can yield different results. 
Assessments of a website's or mobile app's accessibility may change 
frequently over time as the web content or mobile app changes. 
Automated testing tools also may report purported accessibility errors 
inaccurately. For example, an automated testing tool may report an 
error related to insufficient color contrast because the tool has not 
correctly detected the foreground and background colors. These tools 
will also provide an incomplete assessment of a website's accessibility 
because automated tools cannot assess conformance with certain WCAG 
success criteria, such as whether color is being used as the only 
visual means of conveying information or whether all functionality of 
the content is operable through a keyboard interface.\164\ Additional, 
manual testing is required to conduct a full assessment of conformance, 
which can take time and often relies on sampling. Furthermore, the 
Department understands that a person's experiences of web or mobile app 
accessibility may vary depending on what assistive technology or other 
types of hardware or software they are using. Accordingly, the 
Department is considering what the appropriate measure for determining 
compliance with the web and mobile app accessibility requirements 
should be.
---------------------------------------------------------------------------

    \164\ See W3C[supreg], Web Content Accessibility Guidelines 2.1, 
Use of Color (June 5, 2018), https://www.w3.org/TR/WCAG21/#use-of-color [https://perma.cc/R3VC-WZMY]; W3C[supreg], Web Content 
Accessibility Guidelines 2.1, Keyboard Accessible, http://www.w3.org/TR/WCAG21/#keyboard-accessible [https://perma.cc/5A3C-9KK2].
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    The Department believes that a more nuanced definition of 
compliance might be appropriate because some instances of 
nonconformance with WCAG success criteria may not impede access to the 
services, programs, or activities offered through a public entity's web 
content or mobile app. For example, even if a county park fails to 
provide alt text on an image of the scenic views at the park, a person 
who is using a screen reader could still reserve a picnic area 
successfully, so long as the website also includes text about any 
amenities shown in the photo. If the contrast between the text and 
background colors used for permit application instructions deviates by 
a few hundredths from the color contrast ratio required by WCAG 2.1 
Level AA, most people with low vision will likely still be able to 
access those instructions without difficulty. However, in either of 
these examples, the web content would be out of conformance with WCAG 
2.1 Level AA. If the Department does not establish a more detailed 
compliance framework, a person with a disability would have a valid 
basis for filing a complaint with the Department, other designated 
Federal agencies, or in Federal court about either scenario. This could 
expose public entities to extensive litigation risk, while potentially 
generating more complaints than the Department, other designated 
Federal agencies, or the courts have capacity to resolve, and without 
improving access for people with disabilities.
    Some may argue that the same risk of allegedly unjustified 
enforcement action also exists for some provisions of the ADA 
Standards. Yet, the Department believes that, for all of the reasons 
described above (including the frequently changing nature of web 
content, the technical difficulties inherent in ensuring compliance, 
and the potential for differing assessments of compliance), a public 
entity's web content and mobile apps may be more likely to be out of 
full compliance with WCAG 2.1 Level AA than its buildings are to be out 
of compliance with the ADA Standards. Sustained, perfect compliance 
with WCAG 2.1 Level AA may be more difficult to achieve on a website 
that is updated several times a week and includes thousands of pages of 
content than compliance with the ADA Standards is in a town hall that 
is renovated once a decade. The Department also believes that slight 
deviations from WCAG 2.1 Level AA may be more likely to occur without 
having a detrimental impact on access than is the case with the ADA 
Standards. Additionally, it may be easier for an aggrieved individual 
to find evidence of noncompliance with WCAG 2.1 Level AA than 
noncompliance with the ADA Standards, given the availability of many 
free testing tools and the fact that public entities' websites can be 
accessed from almost anywhere. The Department welcomes public comment 
on the accuracy of all of these assumptions, as well as about whether 
it is appropriate to consider the impact of nonconformance with a 
technical standard when evaluating compliance with the proposed rule.
3. Possible Approaches to Defining and Measuring Compliance With This 
Rule
    The Department is considering a range of different approaches to 
measuring compliance with this proposed rule. First, the Department is 
considering whether to require a numerical percentage of conformance 
with a technical standard, which could be 100 percent or less. This 
percentage could be a simple numerical calculation based on the number 
of instances of nonconformance across a website or mobile app, or the 
percentage could be calculated by weighting different instances of 
nonconformance differently. Weighting could be based on factors like 
the importance of the content; the frequency with which the content is 
accessed; the severity of the impact of nonconformance on a person's 
ability to access the services, programs, or activities provided on the 
website; or some other formula. This idea of weighting would not be 
unprecedented in the context of the title II regulatory scheme because, 
in some circumstances, the existing title II regulation requires 
priority to be given to alterations that will provide the greatest 
access.\165\ As described above, the Department of Transportation's web 
accessibility regulation has, at times, also prioritized the 
accessibility of certain content.
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    \165\ See 28 CFR 35.151(b)(4)(iv)(B).
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    However, the Department does not believe that a percentage-based 
approach would achieve the purposes of this rule or be feasible to 
implement because it may not ensure access and will be difficult to 
measure. First, as discussed previously, a percentage-based approach 
seems unlikely to ensure access for people with disabilities. Even if 
the Department were to require that 95 percent or 99 percent of an 
entity's web content or mobile apps conform with WCAG 2.1 (or that all 
content or apps conform to 95 percent or 99 percent of the WCAG 2.1 
success criteria), the relatively small percentage that does not 
conform could still block an individual with a disability from 
accessing a service, program, or activity. For example, a

[[Page 51983]]

single critical accessibility error could prevent an individual with a 
disability from submitting their application for a business license.
    A percentage-based standard is also likely to be difficult to 
implement. If the Department adopts a specific formula for calculating 
whether a certain percentage-based compliance threshold has been met, 
it could be challenging for members of the public and regulated 
entities to determine whether web content and mobile apps comply with 
this rule. Calculations required to evaluate compliance could become 
complex, particularly if the Department were to adopt a weighted or 
tiered approach that requires certain types of core content to be fully 
accessible, while allowing a lower percentage of accessibility for less 
important or less frequently accessed content. People with disabilities 
who are unable to use inaccessible parts of a website or mobile app may 
have particular difficulty calculating a compliance percentage, because 
it could be difficult, if not impossible, for them to correctly 
evaluate the percentage of a website or mobile app that is inaccessible 
if they do not have full access to the entire website or app. For these 
reasons, the Department currently is not inclined to adopt a 
percentage-based approach to measuring compliance, though we welcome 
public comment on ways that such an approach could be implemented 
successfully.
    Another possible approach might be to limit an entity's compliance 
obligations where nonconformance with a technical standard does not 
impact a person's ability to have equal access to services, programs, 
or activities offered on a public entity's website or mobile app. For 
example, the Department could specify that nonconformance with WCAG 2.1 
Level AA does not constitute noncompliance with this part if that 
nonconformance does not prevent a person with a disability from 
accessing or acquiring the same information, engaging in the same 
interactions, performing the same transactions, and enjoying the same 
services, programs, and activities that the public entity offers 
visitors to its website without relevant disabilities, with 
substantially equivalent ease of use. This approach would provide equal 
access to people with disabilities, while limiting the conformance 
obligations of public entities where technical nonconformance with WCAG 
2.1 Level AA does not affect access. If a public entity's compliance 
were to be challenged, in order to prevail, the entity would need to 
demonstrate that, even though it was technically out of conformance 
with one or more of the WCAG 2.1 Level AA success criteria, the 
nonconformance had such a minimal impact that this provision applies, 
and the entity has therefore met its obligations under the ADA despite 
nonconformance with WCAG 2.1.
    The Department believes that this approach would have a limited 
impact on the experience of people with disabilities who are trying to 
use web content or mobile apps for two reasons. First, by its own 
terms, the provision would require a public entity to demonstrate that 
any nonconformance did not have a meaningful effect. Second, it is 
possible that few public entities will choose to rely on such a 
provision, because they would prefer to avoid assuming the risk 
inherent in this approach to compliance. A public entity may find it 
easier to conform to WCAG 2.1 Level AA in full so that it can depend on 
that clearly defined standard, instead of attempting to determine 
whether any nonconformance could be excused under this provision. 
Nonetheless, the Department believes some public entities may find such 
a provision useful because it would prevent them from facing the 
prospect of failing to comply with the ADA based on a minor technical 
error. The Department seeks public comment on all of these assumptions.
    The Department also believes such an approach may be logically 
consistent with the general nondiscrimination principles of section 
508, which require comparable access to information and data,\166\ and 
of the ADA's implementing regulation, which require an equal 
opportunity to participate in and benefit from services.\167\ The 
Department has heard support from the public for ensuring that people 
with disabilities have equal access to the same information and 
services as people without disabilities, with equivalent ease of use. 
The Department is therefore evaluating ways that it can incorporate 
this crucial principle into a final rule, while simultaneously ensuring 
that the compliance obligations imposed by the final rule will be 
attainable for public entities in practice.
---------------------------------------------------------------------------

    \166\ See 29 U.S.C. 794d(a)(1)(A).
    \167\ See 28 CFR 35.130(b)(1)(ii).
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    Another approach the Department is considering is whether an entity 
could demonstrate compliance with this part by affirmatively 
establishing and following certain robust policies and practices for 
accessibility feedback, testing, and remediation. The Department has 
not made any determinations about what policies and practices, if any, 
would be sufficient to demonstrate compliance, and the Department is 
seeking public comment on this issue. However, for illustrative 
purposes only, and to enable the public to better understand the 
general approach the Department is considering, assume that a public 
entity proactively tested its existing web and mobile app content for 
conformance with WCAG 2.1 Level AA using automated testing on a regular 
basis (e.g., every 30 days), conducted user testing on a regular basis 
(e.g., every 90 days), and tested any new web and mobile app content 
for conformance with WCAG 2.1 Level AA before that content was posted 
on its website or added to its mobile app. This public entity also 
remediated any nonconformance found in its existing web and mobile app 
content soon after the test (e.g., within two weeks). An entity that 
took these (or similar) steps on its own initiative could be deemed to 
have complied with its obligations under the ADA, even if a person with 
a disability encountered an access barrier or a particular automated 
testing report indicated noncompliance with WCAG 2.1 Level AA. The 
public entity would be able to rely on its existing, effectively 
working web and mobile app content accessibility testing and 
remediation program to demonstrate compliance with the ADA. In a final 
rule, the Department could specify that nonconformance with WCAG 2.1 
Level AA does not constitute noncompliance with this part if a public 
entity has established certain policies for testing the accessibility 
of web and mobile app content and remediating inaccessible content, and 
the entity can demonstrate that it follows those policies.
    This approach would enable a public entity to remain in compliance 
with the ADA even if its website or mobile app is not in perfect 
conformance with WCAG 2.1 Level AA at all times, if the entity is 
addressing any nonconformance within a reasonable period of time. A new 
policy that a public entity established in response to a particular 
complaint, or a policy that an entity could not demonstrate that it has 
a practice of following, would not satisfy such a provision. The 
Department could craft requirements for such policies in many different 
ways, including by requiring more prompt remediation for nonconformance 
with a technical standard that has a more serious impact on access to 
services, programs, and activities; providing more detail about what 
testing is sufficient (e.g., both automated testing and manual testing, 
testing by users with certain types of disabilities); setting shorter 
or longer time frames for how often testing

[[Page 51984]]

should occur; setting shorter or longer time frames for remediation; or 
establishing any number of additional criteria.
    The Department is also considering whether an entity should be 
permitted to demonstrate compliance with this rule by showing 
organizational maturity--that the organization has a sufficiently 
robust program for web and mobile app accessibility. Organizational 
maturity models provide a framework for measuring how developed an 
organization's programs, policies, and practices are--either as a whole 
or on certain topics (e.g., cybersecurity, user experience, project 
management, accessibility). The authors of one accessibility maturity 
model observe that it can be difficult to know what a successful 
digital accessibility program looks like, and they suggest that 
maturity models can help assess the proficiency of accessibility 
programs and a program's capacity to succeed.\168\ Whereas 
accessibility conformance testing evaluates the accessibility of a 
particular website or mobile app at a specific point in time, 
organizational maturity evaluates whether an entity has developed the 
infrastructure needed to produce accessible web content and mobile apps 
consistently.\169\ For example, some outcomes that an organization at 
the highest level of accessibility maturity might demonstrate include 
integrating accessibility criteria into all procurement and contracting 
decisions, leveraging employees with disabilities to audit 
accessibility, and periodically evaluating the workforce to identify 
gaps in accessibility knowledge and training.\170\
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    \168\ See Level Access, The Digital Accessibility Maturity 
Model: Introduction to DAMM, https://www.levelaccess.com/the-digital-accessibility-maturity-model-introduction-to-damm/ [https://perma.cc/6K38-FJZU].
    \169\ See W3C[supreg], W3C Accessibility Maturity Model, About 
the W3C Accessibility Maturity Model (Sept. 6, 2022), https://www.w3.org/TR/maturity-model/ [https://perma.cc/NB29-BDRN].
    \170\ See W3C[supreg], W3C Accessibility Maturity Model, Ratings 
for Evaluation (Sept. 6, 2022), https://www.w3.org/TR/maturity-model/ [https://perma.cc/W7DA-HM9Z].
---------------------------------------------------------------------------

    Existing maturity models for accessibility establish several 
different categories of accessibility, which are called domains or 
dimensions, then assess which maturity level an organization is at for 
each category.\171\
---------------------------------------------------------------------------

    \171\ See, e.g., W3C[supreg], W3C Accessibility Maturity Model, 
Maturity Model Structure (Sept. 6, 2022), https://www.w3.org/TR/maturity-model/ [https://perma.cc/NB29-BDRN]; Level Access, The 
Digital Accessibility Maturity Model: Core Dimensions, https://www.levelaccess.com/the-digital-accessibility-maturity-model-core-dimensions/ [https://perma.cc/C6ZC-K9ZF]; Level Access, The Digital 
Accessibility Maturity Model: Maturity Levels, https://www.levelaccess.com/the-digital-accessibility-maturity-model-maturity-levels/ [https://perma.cc/25HH-SLYF].
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    For example, the Office of Management and Budget requires Federal 
agencies to assess the maturity of their section 508 programs in the 
following domains: acquisition, agency technology life cycles, testing 
and validation, complaint management, and training.\172\ At the lowest 
level of maturity in each domain, no formal policies, processes, or 
procedures have been defined; at the highest level of maturity, 
effectiveness in the domain is validated, measured, and tracked.\173\
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    \172\ U.S. Gen. Servs. Admin., Assess your Section 508 program 
maturity, https://www.section508.gov/tools/playbooks/technology-accessibility-playbook-intro/play02/ [https://perma.cc/89FM-SJ3H].
    \173\ Id.
---------------------------------------------------------------------------

    As another example, according to a different digital accessibility 
maturity model, if an organization has well-trained, qualified 
individuals test all of its technology, and has individuals with 
relevant disabilities conduct testing at multiple stages in the 
development lifecycle, the organization would meet some of the criteria 
to be rated at the fourth level out of five maturity levels in one of 
ten dimensions--testing and validation.\174\ The Department seeks 
public comment on whether the maturity levels and criteria established 
in existing organizational maturity models for digital accessibility 
would be feasible for State and local government entities to meet.
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    \174\ Level Access, The Digital Accessibility Maturity Model: 
Dimension #7--Testing and Validation, https://www.levelaccess.com/the-digital-accessibility-maturity-model-dimension-7-testing-and-validation/ [https://perma.cc/VU93-3NH4].
---------------------------------------------------------------------------

    As with the policy-based approach discussed above, a focus on 
organizational maturity would enable a public entity to demonstrate 
compliance with the ADA even if the entity's website or mobile app is 
not in perfect conformance with WCAG 2.1 Level AA at all times, so long 
as the entity can demonstrate sufficient maturity of its digital 
accessibility program, which would indicate its ability to quickly 
remedy any issues of nonconformance identified. The Department could 
define requirements for organizational maturity in many different ways, 
including by adopting an existing organizational maturity model in 
full, otherwise relying on existing organizational maturity models, 
establishing different categories of organizational maturity (e.g., 
training, testing, feedback), or establishing different criteria for 
measuring organizational maturity levels in each category. The 
Department could also require an entity to have maintained a certain 
level of organizational maturity across a certain number of categories 
for a specified period of time or require an entity to have improved 
its organizational maturity by a certain amount in a specified period 
of time.
    The Department has several concerns about whether allowing 
organizations to demonstrate compliance with this rule through their 
organizational maturity will achieve the goals of this rulemaking. 
First, this approach may not provide sufficient accessibility for 
individuals with disabilities. It is not clear that when State and 
local government entities make their accessibility programs more 
robust, that will necessarily result in websites and mobile apps that 
consistently conform to WCAG 2.1 Level AA. If the Department permits a 
lower level of organizational maturity (e.g., level four out of five) 
or requires the highest level of maturity in only some categories 
(e.g., level five in training), this challenge may be particularly 
acute. Second, this approach may not provide sufficient predictability 
or certainty for public entities. Organizational maturity criteria may 
prove subjective and difficult to measure, so disputes about an 
entity's assessments of its own maturity may arise. Third, an 
organizational maturity model may be too complex for the Department to 
define or for public entities to implement. Some existing models 
include as many as ten categories of accessibility, with five levels of 
maturity, and more than ten criteria for some levels.\175\ Some of 
these criteria are also highly technical and may not be feasible for 
some public entities to understand or satisfy (e.g., testing artifacts 
are actively updated and disseminated based on lessons learned from 
each group; accessibility testing artifacts required by teams are 
actively updated and maintained for form and ease of use).\176\ Of 
course, a public entity that does not want to use an organizational 
maturity model would not need to do so; it could meet its obligations 
under the rule by complying with WCAG 2.1 Level AA. But it is unclear 
whether this approach will benefit either people with disabilities or 
public entities. We seek public

[[Page 51985]]

comment on whether the Department should adopt an approach to 
compliance that includes organizational maturity, and how such an 
approach could be implemented successfully.
---------------------------------------------------------------------------

    \175\ Level Access, Digital Accessibility Maturity Model (DAAM) 
Archives, https://www.levelaccess.com/category/damm/ [https://perma.cc/Z683-X9H5].
    \176\ Level Access, The Digital Accessibility Maturity Model: 
Dimension #7--Testing and Validation, https://www.levelaccess.com/the-digital-accessibility-maturity-model-dimension-7-testing-and-validation/ [https://perma.cc/VU93-3NH4].
---------------------------------------------------------------------------

    The Department seeks public comment on how compliance with the web 
and mobile app accessibility requirements should be assessed or 
measured, including comments on these approaches to measuring 
compliance and any alternative approaches it should consider.
    Please provide as much detail as possible and any applicable data, 
suggested alternative approaches or requirements, arguments, 
explanations, and examples in your responses to the following 
questions.
    Question 50: What should be considered sufficient evidence to 
support an allegation of noncompliance with a technical standard for 
purposes of enforcement action? For example, if web content or a mobile 
app is noncompliant according to one testing methodology, or using one 
configuration of assistive technology, hardware, and software, is that 
sufficient?
    Question 51: In evaluating compliance, do you think a public 
entity's policies and practices related to web and mobile app 
accessibility (e.g., accessibility feedback, testing, remediation) 
should be considered and, if so, how? For example, should consideration 
be given to an entity's effectively working processes for accepting and 
addressing feedback about accessibility problems; using automated 
testing, manual testing, or testing by people with relevant 
disabilities to identify accessibility problems; and remediating any 
accessibility problems identified within a reasonable period of time 
according to the entity's policies, and if so, how? How would such an 
approach impact people with disabilities?
    Question 52: If you think a public entity's policies and practices 
for receiving feedback on web and mobile app accessibility should be 
considered in assessing compliance, what specific policies and 
practices for feedback would be effective?
    Question 53: If you think a public entity's web and mobile app 
accessibility testing policies and practices should be considered in 
assessing compliance, what specific testing policies and practices 
would be effective? For example, how often should websites and mobile 
apps undergo testing, and what methods should be used for testing? If 
manual testing is required, how often should this testing be conducted, 
by whom, and what methods should be used? Should the Department require 
public entities' websites and mobile apps to be tested in consultation 
with individuals with disabilities or members of disability 
organizations, and, if so, how?
    Question 54: If you think a public entity's web and mobile app 
accessibility remediation policies and practices should be considered 
in assessing compliance, what specific remediation policies and 
practices would be effective? Should instances of nonconformance that 
have a more serious impact on usability--because of the nature of the 
nonconformance (i.e., whether it entirely prevents access or makes 
access more difficult), the importance of the content, or otherwise--be 
remediated in a shorter period of time, while other instances of 
nonconformance are remediated in a longer period of time? How should 
these categories of nonconformance be defined and what time frames 
should be used, if any?
    Question 55: Should a public entity be considered in compliance 
with this part if the entity remediates web and mobile app 
accessibility errors within a certain period of time after the entity 
learns of nonconformance through accessibility testing or feedback? If 
so, what time frame for remediation is reasonable? How would allowing 
public entities a certain amount of time to remediate instances of 
nonconformance identified through testing or feedback impact people 
with disabilities?
    Question 56: Should compliance with this rule be assessed 
differently for web content that existed on the public entity's website 
on the compliance date than for web content that is added after the 
compliance date? For example, might it be appropriate to allow some 
additional time for remediation of content that is added to a public 
entity's website after the compliance date, if the public entity 
identifies nonconformance within a certain period of time after the 
content is added, and, if so, what should the remediation time frame 
be? How would allowing public entities a certain amount of time to 
remediate instances of nonconformance identified in content added after 
the compliance date impact people with disabilities?
    Question 57: What policies and practices for testing and 
remediating web and mobile app accessibility barriers are public 
entities or others currently using and what types of testing and 
remediation policies and practices are feasible (or infeasible)? What 
types of costs are associated with these testing and remediation 
policies?
    Question 58: In evaluating compliance, do you think a public 
entity's organizational maturity related to web and mobile app 
accessibility should be considered and, if so, how? For example, what 
categories of accessibility should be measured? How should maturity in 
each category be assessed or demonstrated i.e., what should the levels 
of organizational maturity be and what should an entity be required to 
do to attain each level)? What indicators of organizational maturity 
criteria would be feasible for public entities to attain? How would an 
approach that assesses organizational maturity for purposes of 
demonstrating compliance impact people with disabilities? Would such an 
approach be useful for public entities?
    Question 59: If you think a public entity's organizational maturity 
should be considered in assessing compliance, what level of 
organizational maturity would be effective? For example, if an 
organizational maturity model has ten categories, should an entity be 
required to attain the highest level of maturity in all ten? Should an 
entity be required to sustain a particular level of organizational 
maturity for a certain length of time?
    Question 60: Should a public entity be considered in compliance 
with this part if the entity increases its level of organizational 
maturity by a certain amount within a certain period of time? If so, 
what time frame for improvement is reasonable, and how much should 
organizational maturity be required to improve? How would an entity 
demonstrate this improvement? How would allowing public entities a 
certain amount of time to develop organizational maturity with respect 
to accessibility impact people with disabilities? Would requiring 
public entities to improve their organizational maturity over time be 
effective?
    Question 61: Are there any frameworks or methods for defining, 
assessing, or demonstrating organizational maturity with respect to 
digital accessibility that the Department should consider adopting for 
purposes of this rule?

[[Page 51986]]

    Question 62: Should the Department address the different level of 
impact that different instances of nonconformance with a technical 
standard might have on the ability of people with disabilities to 
access the services, programs, and activities that a public entity 
offers via the web or a mobile app? If so, how?
    Question 63: Should the Department consider limiting public 
entities' compliance obligations if nonconformance with a technical 
standard does not prevent a person with disabilities from accessing the 
services, programs, and activities that a public entity offers via the 
web or a mobile app? Should the Department consider limiting public 
entities' compliance obligations if nonconformance with a technical 
standard does not prevent a person with disabilities from accessing the 
same information, engaging in the same interactions, and enjoying the 
same programs, services, and activities as people without relevant 
disabilities, within similar time frames and with substantially 
equivalent ease of use? Should the Department consider limiting public 
entities' compliance obligations if members of the public with 
disabilities who are seeking information or services from a public 
entity have access to and use of information and services that is 
comparable to that provided to members of the public who are not 
individuals with disabilities? How would these limitations impact 
people with disabilities?
    Question 64: Should the Department adopt percentages of web or 
mobile app content that need to be accessible or other similar means of 
measuring compliance? Is there a minimum threshold below 100 percent 
that is an acceptable level of compliance? If the Department sets a 
threshold for compliance, how would one determine whether a website or 
mobile app meets that threshold?
    Question 65: When assessing compliance, should all instances of 
nonconformance be treated equally? Should nonconformance with certain 
WCAG 2.1 success criteria, or nonconformance in more frequently 
accessed content or more important core content, be given more weight 
when determining whether a website or mobile app meets a particular 
threshold for compliance?
    Question 66: How should the Department address isolated or 
temporary noncompliance \177\ with a technical standard and under what 
circumstances should noncompliance be considered isolated or temporary? 
How should the Department address noncompliance that is a result of 
technical difficulties, maintenance, updates, or repairs?
---------------------------------------------------------------------------

    \177\ See 28 CFR 35.133(b).
---------------------------------------------------------------------------

    Question 67: Are there any local, State, Federal, international, or 
other laws or policies that provide a framework for measuring, 
evaluating, defining, or demonstrating compliance with web or mobile 
app accessibility requirements that the Department should consider 
adopting?

VI. Regulatory Process Matters

    The Department has examined the likely economic and other effects 
of this proposed rule addressing the accessibility of web content and 
mobile apps, as required, under applicable Executive Orders,\178\ 
Federal administrative statutes (e.g., the Regulatory Flexibility 
Act,\179\ Paperwork Reduction Act,\180\ and Unfunded Mandates Reform 
Act \181\) and other regulatory guidance.\182\
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    \178\ See E.O. 14094, 88 FR 21879 (Apr. 6, 2023); E.O. 13563, 76 
FR 3821 (Jan. 21, 2011); E.O. 13272, 67 FR 53461 (Aug. 13, 2002); 
E.O. 13132, 64 FR 43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735 
(Sept. 30, 1993).
    \179\ Regulatory Flexibility Act of 1980 (``RFA''), as amended 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 
U.S.C. 601 et seq.
    \180\ Paperwork Reduction Act (``PRA''), 44 U.S.C. 3501 et seq.
    \181\ Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et 
seq.
    \182\ OMB Circular A-4 (Sept. 17, 2003).
---------------------------------------------------------------------------

    As discussed previously, the purpose of this proposed regulation is 
to revise the regulation implementing title II of the ADA in order to 
ensure that the services, programs, or activities offered by State and 
local government entities to the public via web content and mobile apps 
are accessible to people with disabilities. The Department is proposing 
to adopt specific technical standards related to the accessibility of 
the web content and mobile apps of State and local government entities 
and is specifying proposed dates by which such web content and mobile 
apps must meet those standards. This rule is necessary to help public 
entities understand how to ensure that people with disabilities will 
have equal access to the services, programs, and activities public 
entities make available on or through their web content and mobile 
apps.
    The Department has carefully crafted this proposed regulation to 
better ensure the protections of title II of the ADA, while at the same 
time doing so in the most economically efficient manner possible. After 
assessing the likely costs of this proposed regulation, the Department 
has determined that it is a section 3(f)(1) significant regulatory 
action within the meaning of Executive Order 12866, as amended by 
Executive Order 14094. As such, the Department has undertaken a 
Preliminary Regulatory Impact Analysis (``PRIA'') pursuant to Executive 
Order 12866. The Department has undertaken a Preliminary Regulatory 
Flexibility Analysis as specified in Sec.  603(a) of the Regulatory 
Flexibility Act. The results of both of these analyses are summarized 
below. Lastly, the Department does not believe that this proposed 
regulation will have any impact--significant or otherwise--relative to 
the Paperwork Reduction Act, the Unfunded Mandates Reform Act, or the 
federalism principles outlined in Executive Order 13132.

A. Preliminary Regulatory Impact Analysis (``PRIA'') Summary

1. Introduction
    The Department has prepared a Preliminary Regulatory Impact 
Analysis (``PRIA'') for this rulemaking. This PRIA complies with the 
requirements of Executive Order 12866, as well as other authorities on 
regulatory planning, by providing a robust economic analysis of the 
costs and benefits of this rulemaking. It contains a Preliminary 
Regulatory Flexibility Analysis (``PRFA''), which is also included in 
this summary. The Department contracted with Eastern Research Group 
Inc. (``ERG'') to prepare this economic assessment. This summary 
provides an overview of the Department's preliminary economic analysis 
and key components of the PRIA. The full PRIA will be made available at 
https://www.ada.gov/assets/_pdfs/web-pria.pdf.
    Requiring State and local government entities' web content and 
mobile apps to comply with the WCAG 2.1 Level AA success criteria will 
result in costs for State and local government entities to remediate 
and maintain their web content and mobile apps in conformance with this 
technical standard. The Department believes that most of these costs 
will be one-time expenses to remediate existing websites, and that the 
rule will not impose as substantial cost burdens in the creation of new 
websites, as experts estimate that building accessibility into a 
website initially is 3-10 times less expensive than retrofitting an 
existing one for accessibility.\183\ Based on a Department analysis of 
the web presence of a sample of 227 State and local government

[[Page 51987]]

entities, the Department estimates that a total number of 109,893 State 
and local government entity websites and 8,805 State and local 
government entity mobile apps will be affected by the rule. These 
websites and mobile apps provide services on behalf of and are managed 
by 91,489 State and local government entities that will incur these 
costs. These costs include one-time costs for familiarization with the 
requirements of the rule; testing, remediation, and O&M costs for 
websites; testing, remediation, and O&M costs for mobile apps; and 
school course remediation costs. The remediation costs include both 
time and software components. Initial familiarization, testing, and 
remediation costs of the proposed rule occur over the first two or 
three years (two years for large governments and three years for small 
governments) and are presented in Table 3. Implementation costs accrue 
during the first three years of the analysis (the implementation 
period) and total $15.8 billion, undiscounted. After the implementation 
period, annual O&M costs are $1.8 billion. Annualized costs are 
calculated over a 10-year period that includes both this implementation 
period and seven years post-implementation. Annualized costs over this 
10-year period are estimated at $2.8 billion assuming a 3 percent 
discount rate or $2.9 billion assuming a 7 percent discount rate. All 
values are presented in 2021 dollars as 2022 data were not yet 
available. These costs are summarized in Table 4, Table 5, and Table 6. 
Two findings that were notable in the Department's estimations for 
accessible course content were that, due to the limitations to the 
exceptions for course content, the Department expects that within two 
years following implementation virtually all postsecondary courses will 
be remediated, and within the first year of implementation virtually 
all elementary and secondary classes or courses will be remediated.
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    \183\ Level Access, The Road to Digital Accessibility, https://www.levelaccess.com/the-road-to-digital-accessibility/ [https://perma.cc/4972-J8TA].
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    Benefits will generally accrue to all individuals who access State 
and local government entities' web content and mobile apps, and 
additional benefits will accrue to individuals with certain types of 
disabilities. The WCAG 2.1 Level AA standards primarily benefit 
individuals with vision, hearing, cognitive, and manual dexterity 
disabilities because WCAG 2.1 is intended to address barriers that 
often impede access for people with these disability types. Using 2021 
data, the Department estimates that 4.8 percent of adults have a vision 
disability, 7.5 percent have a hearing disability, 10.1 percent have a 
cognitive disability, and 5.7 percent have a manual dexterity 
disability. Due to the incidence of multiple disabilities, the total 
share without any of these disabilities is 80.1 percent.
    Annual benefits, beginning once the rule is fully implemented, 
total $11.4 billion. Because individuals generally prefer benefits 
received sooner, future benefits need to be discounted to reflect the 
lower value due to the wait to receive them. The Office of Management 
and Budget (``OMB'') guidance states that annualized benefits and costs 
should be presented using real discount rates of 3 and 7 percent.\184\ 
Benefits annualized over a 10-year period that includes both three 
years of implementation and seven years post-implementation total $9.3 
billion per year, assuming a 3 percent discount rate, and $8.9 billion 
per year, assuming a 7 percent discount rate. Annual and annualized 
monetized benefits of the proposed rule are presented in Table 7, Table 
8, and Table 9. There are many additional benefits that have not been 
monetized due to data availability. Benefits that cannot be monetized 
are discussed qualitatively. Impacts to individuals include increased 
independence, increased flexibility, increased privacy, reduced 
frustration, decreased reliance on companions, and increased program 
participation. This proposed rule will also benefit governments through 
increased certainty about what constitutes accessible web content, 
potential reduction in litigation, and a larger labor market pool.
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    \184\ See Office of Management and Budget, Circular A-4 (Sept. 
17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf [https://perma.cc/7655-M7UF].
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    Comparing annualized costs and benefits, monetized benefits to 
society outweigh the costs. A summary of this comparison is presented 
in Table 10. Net annualized benefits over the first 10 years post 
publication of this rule total $6.5 billion per year using a 3 percent 
discount rate and $6.0 billion per year using a 7 percent discount 
rate. Additionally, beyond this 10-year period, benefits are likely to 
continue to accrue at a greater rate than costs because many of the 
costs are upfront costs and benefits tend to have a delay before 
beginning to accrue.
    To consider the relative magnitude of the estimated costs of this 
proposed regulation, the Department also compared the costs to revenues 
for public entities. Because the costs for each government entity type 
are estimated to be well below 1 percent of revenues, the Department 
does not believe the rule will be unduly burdensome or costly for 
public entities.\185\ Costs of the rulemaking for each government 
entity type are estimated to be well below this 1 percent threshold.
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    \185\ As noted above and as a point of reference, the United 
States Small Business Administration advises agencies that a 
potential indicator that the impact of a proposed regulation may be 
``significant'' is whether the costs exceed 1 percent of the gross 
revenues of the entities in a particular sector, although the 
threshold may vary based on the particular types of entities at 
issue. The Department estimates that the costs of this rulemaking 
for each government entity type are far less than 1 percent of 
revenues. See Small Bus. Admin., A Guide for Government Agencies: 
How to Comply with the Regulatory Flexibility Act 19 (Aug. 2017), 
https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH].
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    The Department's economic analysis is discussed more fully in the 
complete PRIA. However, the Department will review its findings and 
analysis in this summary. Some key portions of the PRIA are also 
included here in full to aid in understanding the Department's analysis 
and to provide sufficient context for public feedback.

[[Page 51988]]



                                            Table 3--Initial Familiarization, Testing, and Remediation Costs
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Special       School         U.S.
              Cost                   State        County     Municipal     Township     district     district     territories    Higher ed.     Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization......        $0.02        $0.90        $5.79        $4.83       $11.44        $3.63           $0.00        $0.56       $27.17
Websites........................        228.9        742.5      2,363.4      1,342.9        374.4      1,826.1             6.4      1,283.0      8,167.7
Mobile apps.....................         13.7         53.1         93.4          1.3          0.0        379.7             1.2         64.4        606.8
Postsecondary course remediation          N/A          N/A          N/A          N/A          N/A          N/A             N/A      5,393.8      5,393.8
Primary and secondary course              N/A         47.4         18.5         40.0          N/A      1,059.5             N/A          N/A      1,165.4
 remediation....................
Third-party website remediation.          6.6         35.8        133.5         77.6         18.0        103.1             0.0         84.7        459.2
                                 -----------------------------------------------------------------------------------------------------------------------
    Total.......................        249.2        879.7      2,614.6      1,466.6        403.9      3,372.0             7.6      6,826.4     15,819.9
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                    Table 4--Average Annual Cost After Implementation
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Special       School         U.S.
              Cost                   State        County     Municipal     Township     district     district     territories    Higher ed.     Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Websites........................        $19.9        $65.1       $215.1       $124.2        $40.5       $164.7            $0.6       $111.7       $741.9
Mobile apps.....................         0.01         0.04         0.03         0.00         0.00         0.21            0.00         0.04         0.33
Postsecondary course remediation          N/A          N/A          N/A          N/A          N/A          N/A             N/A        935.7        935.7
Primary and secondary course              N/A          4.7          1.9          4.0          N/A        105.9             N/A          N/A        116.5
 remediation....................
Third-party website remediation.          0.6          3.2         12.1          7.2          1.9          9.2             0.0          7.4         41.6
                                 -----------------------------------------------------------------------------------------------------------------------
    Total.......................         20.5         73.1        229.2        135.4         42.5        280.1             0.6      1,054.8      1,836.0
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                            Table 5--10-Year Average Annualized Cost, 3 Percent Discount Rate
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Special       School         U.S.
              Cost                   State        County     Municipal     Township     district     district     territories    Higher ed.     Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization......        $0.00        $0.10        $0.66        $0.55        $1.30        $0.41           $0.00        $0.06        $3.09
Websites........................         38.9        126.4        405.2        231.2         68.4        312.4             1.1        217.9      1,401.5
Mobile apps.....................          1.5          5.9         10.5          0.1          0.0         42.2             0.1          7.2         67.7
Postsecondary course remediation          N/A          N/A          N/A          N/A          N/A          N/A             N/A      1,100.9      1,100.9
Primary and secondary course              N/A          7.9          3.1          6.7          N/A        176.9             N/A          N/A        194.6
 remediation....................
Third-party website remediation.          1.1          6.1         22.9         13.4          3.3         17.6             0.0         14.4         78.7
                                 -----------------------------------------------------------------------------------------------------------------------
    Total.......................         41.5        146.4        442.3        251.9         73.0        549.6             1.2      1,340.6      2,846.6
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                            Table 6--10-Year Average Annualized Cost, 7 Percent Discount Rate
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Special       School         U.S.
              Cost                   State        County     Municipal     Township     district     district     territories    Higher ed.     Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization......        $0.00        $0.12        $0.77        $0.64        $1.52        $0.48           $0.00        $0.07        $3.61
Websites........................         41.6        135.2        429.6        244.5         71.8        331.8             1.2        233.5      1,489.1
Mobile apps.....................          1.8          6.7         12.0          0.2          0.0         47.7             0.2          8.3         76.9
Postsecondary course remediation          N/A          N/A          N/A          N/A          N/A          N/A             N/A      1,097.5      1,097.5
Primary and secondary course              N/A          8.0          3.1          6.8          N/A        179.2             N/A          N/A        197.1
 remediation....................
Third-party website remediation.          1.2          6.5         24.3         14.1          3.4         18.7             0.0         15.4         83.7
                                 -----------------------------------------------------------------------------------------------------------------------
    Total.......................         44.6        156.6        469.8        266.1         76.8        577.9             1.3      1,354.8      2,947.9
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                Table 7--Annual Benefit Once Full Implementation
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                      Without
          Benefit type                Visual      Other relevant     relevant        State and         Total
                                    disability    disability \a\   disabilities    local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users.....          $549.6          $751.3        $2,858.5             N/A        $4,159.4

[[Page 51989]]

 
Time savings--new users.........           222.4           695.0             N/A           600.6         1,518.1
Time savings--mobile apps.......            51.5            70.5           268.1             N/A           390.1
Time savings--education.........           693.5         1,205.8         3,157.8             N/A         5,057.1
Educational attainment..........             7.2           255.6             N/A             N/A           262.8
                                 -------------------------------------------------------------------------------
    Total benefits..............         1,524.2         2,978.3         6,284.3           600.6        11,387.5
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
  relevant disabilities.''


                      Table 8--10-Year Average Annualized Benefits, 3 Percent Discount Rate
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                      Without
          Benefit type                Visual      Other relevant     relevant        State and         Total
                                    disability    disability \a\   disabilities    local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users.....          $463.6          $633.8        $2,411.6             N/A        $3,509.1
Time savings--new users.........           187.6           586.4             N/A           506.7         1,280.7
Time savings--mobile apps.......            43.5            59.4           226.2             N/A           329.1
Time savings--education.........           504.7           878.8         2,307.6             N/A         3,691.1
Educational attainment..........            13.8           492.4             N/A             N/A           506.2
                                 -------------------------------------------------------------------------------
    Total benefits..............         1,213.2         2,650.9         4,945.4           506.7         9,316.3
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
  relevant disabilities.''


                      Table 9--10-Year Average Annualized Benefits, 7 Percent Discount Rate
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                      Without
          Benefit type                Visual      Other relevant     relevant        State and         Total
                                    disability    disability \a\   disabilities    local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users.....          $451.4          $617.1        $2,347.7             N/A        $3,416.1
Time savings--new users.........           182.7           570.8             N/A           493.3         1,246.8
Time savings--mobile apps.......            42.3            57.9           220.2             N/A           320.4
Time savings--education.........           478.9           834.2         2,191.3             N/A         3,504.4
Educational attainment..........            12.3           437.2             N/A             N/A           449.5
                                 -------------------------------------------------------------------------------
    Total benefits..............         1,167.6         2,517.1         4,759.1           493.3         8,937.2
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
  relevant disabilities.''


  Table 10--10-Year Average Annualized Comparison of Costs and Benefits
------------------------------------------------------------------------
                                            3% Discount     7% Discount
              Benefit type                     rate            rate
------------------------------------------------------------------------
Average annualized costs (millions).....        $2,846.6        $2,947.9
Average annualized benefits (millions)..         9,316.3         8,937.2
Net benefits (millions).................         6,469.7         5,989.3
Cost-to-benefit ratio...................             0.3             0.3
------------------------------------------------------------------------

2. Baseline Conditions
    To estimate the costs and benefits of the proposed rule, baseline 
web accessibility of government websites and baseline disability 
prevalence need to be considered both in the presence and absence of 
the proposed rule over the 10-year analysis period. For these analyses, 
the Department assumed that the number of governments would remain 
constant over the 10-year horizon for which the Department projects 
costs and benefits. This is in line with the trend of total government 
units in the United States, which rose by only 19 government units 
(representing a 0.02 percent increase) between 2012 and 2017.\186\ The 
Department assumes that the total number of government websites scales 
with the number of governments, and that the number of government 
websites that each government maintains would remain constant for the 
10-year period with or without the rule. The Department notes, however, 
that if the number of government websites increases over time, both 
costs and

[[Page 51990]]

benefits would increase accordingly, and because benefits are estimated 
to be larger than costs, this would only create a larger net benefit 
for the rule. The Department also assumes constant rates of disability 
over the 10-year horizon.\187\ Finally, the ways in which government 
websites are used and the types of websites (e.g., Learning Management 
Systems and Content Management Systems) are assumed to be constant due 
to a lack of data.
---------------------------------------------------------------------------

    \186\ U.S. Census Bureau, Census of Governments 2017--Public use 
Files (Jan. 2017), https://www.census.gov/data/datasets/2017/econ/gus/public-use-files.html [https://perma.cc/UG79-5MVM]; U.S. Census 
Bureau, Census of Governments 2012--Public use Files (Jan. 2012), 
https://www.census.gov/data/datasets/2012/econ/gus/public-use-files.html [https://perma.cc/7UPP-H9WN].
    \187\ Recent trends in disability prevalence vary across 
surveys, with some finding an increase in recent years and others 
finding no change. Due to uncertainty, the Department assumed no 
change in prevalence rates over the next ten years. U.S. Census 
Bureau, 2021 SIPP: Estimates of Disability Prevalence (Aug. 30, 
2022), https://www.census.gov/programs-surveys/sipp/tech-documentation/user-notes/2021-usernotes/estim-disabilty-preval.html 
[https://perma.cc/6BJB-XX96].
---------------------------------------------------------------------------

    Costs to test and remediate websites were estimated based on the 
level of effort needed to reach full compliance with WCAG 2.1 Level AA 
from the level of observed compliance during the Department's automated 
and manual accessibility checking from September 2022 through October 
2022. The Department did not feel confident quantifying baseline 
conformity with proposed requirements.\188\ Baseline accessibility of 
mobile apps and password-protected course content was understood 
through literature, which estimated costs to make those materials WCAG 
2.1 Level AA compliant, implicitly defining baseline conditions.
---------------------------------------------------------------------------

    \188\ Though SortSite does give what percentile a website falls 
into as far as accessibility, it does not give a raw ``accessibility 
score.''
---------------------------------------------------------------------------

    Most literature on current website accessibility has not 
historically tested websites against the same sets of standards, so 
comparing results from studies over time to find trends in 
accessibility is challenging. Additionally, the types of websites 
tested, and their associated geographies, tend to vary from study to 
study, compounding the difficulty of extracting longitudinal trends in 
accessibility. There are, however, some studies that have evaluated the 
change in accessibility for the same websites in different time 
periods, such as a 2014 paper that continued a study of Alabama website 
accessibility from 2002.189 190 That study found almost no 
change in accessibility from the previous 2002 study.\191\ Although 
most accessibility studies do not take this longitudinal approach, 
their conclusions, regardless of the standards against which websites 
are checked, are generally that websites are not fully accessible. For 
example, a 2006 study found that 98 percent of State home pages did not 
meet WCAG 1.0 Level AA guidelines.\192\ Another 2006 study found that 
only 18 percent of municipal websites met section 508 standards.\193\ 
And 14 years later, a 2021 study found that 71 percent of county 
websites evaluated did not conform to WCAG 2.0, and the remaining 29 
percent only partially conformed to the standards.\194\ Given the 
minimal progress in web accessibility over the last 20 years, the 
Department does not expect that compliance with WCAG 2.1 Level AA would 
improve significantly in the absence of the rule.
---------------------------------------------------------------------------

    \189\ Andrew Potter, Accessibility of Alabama Government 
websites, 29 Journal of Government Information 303 (2002), https://doi.org/10.1016/S1352-0237(03)00053-4 [https://perma.cc/5W29-YUHK].
    \190\ Norman Youngblood, Revisiting Alabama State website 
Accessibility, 31 Government Information Quarterly 476 (2014), 
https://doi.org/10.1016/j.giq.2014.02.007 [https://perma.cc/PUL4-QUCD].
    \191\ Potter (2002) found that 80 percent of State websites did 
not pass section 508 standards, and Youngblood (2014) found that 78 
percent of those same websites still did not meet section 508 
standards 12 years later. Andrew Potter, Accessibility of Alabama 
Government websites, 29 Journal of Government Information 303 
(2002), https://doi.org/10.1016/S1352-0237(03)00053-4 [https://perma.cc/5W29-YUHK]; Norman Youngblood, Revisiting Alabama State 
website Accessibility, 31 Government Information Quarterly 476 
(2014), https://doi.org/10.1016/j.giq.2014.02.007 [https://perma.cc/PUL4-QUCD].
    \192\ Tanya Goette et al., An Exploratory Study of the 
Accessibility of State Government websites, 5 Universal Access in 
the Information Society 41 (Apr. 20, 2006), https://link.springer.com/article/10.1007/s10209-006-0023-2 [https://perma.cc/6SD9-KRFT].
    \193\ Jennifer S. Evans-Cowley, The Accessibility of Municipal 
Government websites, 2 Journal of E-Government 75 (2006), https://www.tandfonline.com/doi/abs/10.1300/J399v02n02_05. A Perma archive 
link was unavailable for this citation.
    \194\ Yang Bai et al., Accessibility of Local Government 
websites: Influence of Financial Resources, County Characteristics 
and Local Demographics, 20 Universal Access in the Information 
Society 851 (2021), https://link.springer.com/article/10.1007/s10209-020-00752-5 [https://perma.cc/YM6G-Y7TY]. The Department 
notes that although these studies discuss State or local government 
conformance with the section 508 standards, those standards only 
apply to the Federal Government, not to State or local governments.
---------------------------------------------------------------------------

3. Number of Affected Governments and Individuals
    The proposed regulation will affect all State and local government 
entities \195\ by requiring them to comply with WCAG 2.1 Level AA. The 
Department used the 2017 Census of Governments to determine the number 
of affected governments, disaggregated by government entity type as 
defined by the Census Bureau.\196\ The Department estimates the number 
of government entities affected by the proposed rule in Table 11. To 
account for differences in government characteristics, the Department 
stratified the government entities by population size and analyzed 
impacts of the rule to each type of government entity within each 
population size category. The Department assumes that the number of 
governments would remain constant throughout the 10-year analysis 
period with or without the rule.
---------------------------------------------------------------------------

    \195\ The PRIA summary and PRFA frequently refer generally to 
``governments,'' which is intended to include only State or local 
governments covered by this rulemaking.
    \196\ U.S. Census Bureau, Census of Governments 2017--Public use 
Files (Jan. https://www.census.gov/data/datasets/2017/econ/gus/public-use-files.html [https://perma.cc/UG79-5MVM].
    \197\ See Section 2.1, Number of Governments, in the 
accompanying PRIA for the Department's methodology.

                         Table 11--Number of Governments by Government Entity Type \197\
----------------------------------------------------------------------------------------------------------------
                                                                   Population of
                    Type of government entity                        less than     Population of       Total
                                                                      50,000      50,000 or more
----------------------------------------------------------------------------------------------------------------
State...........................................................             N/A          \a\ 51              51
County..........................................................           2,105             926           3,031
Municipal.......................................................          18,729             766          19,495
Township........................................................          16,097             156          16,253
Special district................................................      \b\ 38,542             N/A          38,542
School district.................................................          11,443             779          12,222
U.S. territory..................................................               2               3               5
Public university...............................................         \b\ 744             N/A             744
Community college...............................................       \b\ 1,146             N/A           1,146
                                                                 -----------------------------------------------

[[Page 51991]]

 
    Total (no higher education).................................          86,918           2,681          89,599
                                                                 -----------------------------------------------
        Total (with higher education)...........................          88,808           2,681          91,489
----------------------------------------------------------------------------------------------------------------
\a\ Washington, DC is included as a State for purposes of this table and the following analysis.
\b\ Special district, public university, and community college data do not include population. For these tables,
  they are displayed as small.

    The Department expects the benefits of this proposed regulation 
will accrue to all individuals using State and local government 
entities' services, but particularly to those with certain types of 
disabilities. WCAG 2.1 Level AA primarily benefits individuals with 
vision, hearing, cognitive, and manual dexterity disabilities.\198\ To 
identify persons with those disabilities, the Department relied on the 
U.S. Census Bureau's Survey of Income and Program Participation 
(``SIPP'') for reasons described further in the Department's full 
PRIA.\199\
---------------------------------------------------------------------------

    \198\ See Section VI.A.5.b of this preamble for further 
information.
    \199\ See U.S. Census Bureau, Survey of Income and Program 
Participation--About this Survey (Aug. 2022), https://www.census.gov/programs-surveys/sipp/about.html [https://perma.cc/Z7UH-6MJ8].
---------------------------------------------------------------------------

    Using SIPP 2021 data, as shown in Table 12, the Department 
estimates that 4.8 percent of adults have a vision disability, 7.5 
percent have a hearing disability, 10.1 percent have a cognitive 
disability, and 5.7 percent have a manual dexterity disability. Due to 
the incidence of multiple disabilities, the total share without any of 
these disabilities is 80.1 percent.\200\
---------------------------------------------------------------------------

    \200\ These estimates may miss some individuals due to 
underreporting. Some individuals with temporary disabilities may 
also not respond in the affirmative and may be missed. We note, 
however, that people with temporary disabilities may not always 
qualify as having a disability covered by the ADA.

                                Table 12--Disability Prevalence Counts, SIPP 2021
----------------------------------------------------------------------------------------------------------------
                                                                                     Marginal        Marginal
                 Disability type                    Prevalence        Number        prevalence      number \a\
                                                     rate (%)       (millions)     rate \a\ (%)     (millions)
----------------------------------------------------------------------------------------------------------------
Vision..........................................             4.8            12.2             4.8            12.2
Hearing.........................................             7.5            19.0             6.1            15.3
Cognitive.......................................            10.1            25.5             6.7            16.9
Manual dexterity................................             5.7            14.3             2.3             5.7
None of the above...............................            80.1           202.3            80.1           202.3
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau. https://www.census.gov/programs-surveys/sipp/data/datasets/2021-data/2021.html.
\a\ Individuals with multiple qualifying disabilities are counted within the first disability category listed
  (e.g., if someone has a cognitive and vision disability, they are included in the vision disability prevalence
  rate).

4. Compliance Cost Analysis
    For State and local Government entities to comply with the proposed 
rule, they will have to invest time and resources to make inaccessible 
web and mobile app content accessible. Based on a review of the 
accessibility of a sample of State and local government entities' 
websites taken between September and November 2022, the Department has 
found that most government websites and mobile apps will require 
accessibility testing and remediation because they do not meet the 
success criteria of WCAG 2.1 Level AA. In addition, the proposed rule 
will generally require public postsecondary educational institutions 
and primary and secondary schools to provide accessible course content 
to students with disabilities at the time that the schools knew or 
should have known that a student with a disability is enrolled in a 
class and would be unable to access the content available on the 
password-protected website for that class (the rule provides a similar 
requirement for parents with disabilities in the primary and secondary 
school context). The Department performed analyses to estimate the 
costs to test and remediate inaccessible websites, mobile apps, and 
education course content. Estimated total costs of the rule can be 
found in Table 3 above. The monetized costs are also summarized further 
in the following subsections.
a. Regulatory Familiarization Costs
    Regulatory familiarization refers to the time needed for 
professional staff members to become familiar with the requirements of 
new regulations. This may include time spent reading the rule itself, 
but more commonly it refers to time spent reviewing guidance documents 
provided by the Department, advocacy groups, or professional 
organizations. It does not include time spent identifying current 
compliance levels or implementing changes. It also does not include 
training time to learn the nuances of WCAG 2.1 Level AA.
    The Department has estimated regulatory familiarization costs to be 
$27.2 million. The summary of the Department's regulatory 
familiarization calculations is included in Table 13, and the 
Department's analysis is explained in more detail in Section 3.2, 
Regulatory Familiarization Costs, of the full PRIA. Average annualized 
regulatory familiarization costs over 10 years, using a 7 percent 
discount rate, are $3.6 million.
---------------------------------------------------------------------------

    \201\ See Section 3.2, Regulatory Familiarization Costs, in the 
accompanying PRIA for the Department's methodology.

            Table 13--Regulatory Familiarization Costs \201\
------------------------------------------------------------------------
                        Variable                               Value
------------------------------------------------------------------------
Potentially affected governments........................          91,489
Average hours per entity................................               3

[[Page 51992]]

 
Loaded wage rate........................................          $98.98
    Base wage \a\.......................................          $49.49
    Adjustment factor...................................            2.00
Cost year 1 ($1,000s)...................................         $27,167
Annual cost years 2-10 ($1,000s)........................              $0
Average annualized cost, 3% discount rate ($1,000s).....          $3,092
Average annualized cost, 7% discount rate ($1,000s).....          $3,615
------------------------------------------------------------------------
\a\ 2021 Occupational Employment and Wage Survey (OEWS) median wage for
  software and web developers, programmers, and testers (SOC 15-1250).

b. Website Testing, Remediation, and O&M Costs
    The proposed rule uses WCAG 2.1 Level AA as the standard for State 
and local government entities' websites. To assess costs to State and 
local government entities, the Department employed multistage 
stratified cluster sampling to randomly select government entities and 
their websites. To account for variability in website complexity and 
baseline compliance with WCAG 2.1 between government types, the 
Department then sampled and assessed costs based on each government 
type. Each identified website within the second-stage sample was tested 
for accessibility using a two-pronged approach of automated and manual 
testing to estimate the number of accessibility errors present on each 
site. The Department estimated remediation costs for government 
websites based on these manual and automated accessibility reports. The 
cost of remediating a website was calculated by estimating the amount 
of time it would take to fix each accessibility error identified on 
that website and multiplying that time by the 2021 Occupational 
Employment and Wage Survey (``OEWS'') median wage for software and web 
developers, programmers, and testers and by a factor of two to account 
for benefits and overhead.\202\
---------------------------------------------------------------------------

    \202\ U.S. Bureau of Labor Statistics, May 2021 National 
Occupational Employment and Wage Estimates United States (Mar. 31, 
2022), https://www.bls.gov/oes/current/oes_nat.htm#15-0000 [https://perma.cc/U2JE-ZXAL].
---------------------------------------------------------------------------

    Mobile app costs were analyzed separately as described in Section 
VI.A.4.c of this preamble. Further, costs associated with the 
remediation of PDFs and the captioning of video and audio media hosted 
on government websites were estimated separately, in order to better 
capture the nuanced costs associated with remediating these types of 
content.
    For costs of PDF remediation, the Department calculated both 
software costs and remediation time, given that access to some PDF 
editing software equipped with accessibility functionality is necessary 
to ensure PDFs are accessible. The Department estimated the amount of 
time needed to remediate existing PDFs covered by the proposed rule by 
determining an average amount of time needed to make a pre-existing PDF 
compliant with WCAG 2.1 Level AA and estimating the number of covered 
PDFs hosted on State and local government entities' websites requiring 
remediation.
    For costs of captioning, two governments were randomly selected 
from each government type, for a total of 28 governments selected. The 
Department compiled a list of all videos and audio files associated 
with each website. The Department then made a determination about 
whether the video or audio media required captions and recorded their 
durations. The durations of YouTube and Vimeo videos were imputed from 
the mean duration of non-YouTube and non-Vimeo videos, computed across 
all 28 governments. The Department estimated that, for those 28 
entities, captioning is needed for: 1,640 minutes of non-YouTube and 
non-Vimeo videos, 378 minutes of audio files, and 23,794 minutes of 
YouTube and Vimeo videos. This adds up to a total captioning time of 
25,811 minutes for the 28 governments. The Department then scanned 
consumer prices and, based on that scan, applied an upper bound rate of 
$15 per minute to caption to the total captioning time, yielding an 
estimated cost of $387,200 across the 28 governments. For these same 
governments, the total estimated website remediation costs are $8.1 
million. Thus, the ratio of captioning costs to website remediation 
costs is 4.8 percent. This ratio represents the estimated mean 
percentage increase in website remediation costs when accounting for 
video and audio content requiring captions--including content posted to 
external sites and platforms such as YouTube and Vimeo. This mean 
percentage was applied uniformly to all government types to scale up 
the website remediation costs to account for video and audio content. 
The Department's assessment of these costs is included in the full PRIA 
and summarized in Table 14.
    In addition, the Department estimated testing costs by evaluating 
the pricing of several commercial web accessibility checkers that could 
be used in tandem with manual testing. The Department then derived an 
average cost to test and remediate all websites of a given government 
entity for each government type and size. Initial website testing and 
remediation costs are summarized in Table 14, and the methodologies 
used to calculate these costs are fully described in Section 3.3, 
website Testing, Remediation, and O&M Costs, in the full PRIA.

                          Table 14--Total Initial Website Testing and Remediation Costs
                                                [Millions] \203\
----------------------------------------------------------------------------------------------------------------
                                                                                     Video and
                                                      Website           PDF            audio       Total initial
    Type of Government entity      Testing costs    remediation     remediation     captioning         costs
                                                       costs           costs           costs
----------------------------------------------------------------------------------------------------------------
State...........................           $28.3          $141.1           $22.9            $6.7          $199.0
County (small)..................             9.1            35.4            15.9             1.7            62.2
County (large)..................            87.7           433.2            44.4            20.6           585.9
Municipality (small)............           268.8         1,260.1           112.7            60.0         1,701.5
Municipality (large)............            61.8           304.2            45.0            14.5           425.5
Township (small)................           185.5           876.1            89.5            41.7         1,192.8
Township (large)................             3.8            18.0             2.1             0.9            24.7
Special district................            61.4           247.0            13.8            11.8           333.9
U.S. territory (small)..........             0.1             0.6             0.4             0.0             1.2
U.S. territory (large)..........             0.6             3.0             0.7             0.1             4.5
School district (small).........           175.1           813.5            55.7            38.7         1,083.0

[[Page 51993]]

 
School district (large).........            85.2           421.4            24.1            20.1           550.8
Public university...............            73.4           362.7            26.7            17.3           480.1
Community college...............            98.0           483.4            30.9            23.0           635.3
                                 -------------------------------------------------------------------------------
    Total.......................         1,138.8         5,399.6           484.9           257.1         7,280.3
----------------------------------------------------------------------------------------------------------------

    In addition to initial testing and remediation costs associated 
with making existing web content accessible, the Department also 
estimated O&M costs, which State and local government entities would 
incur after the initial implementation phase. These O&M costs cover 
ongoing activities required under the rule to ensure that new web 
content meets WCAG 2.1 Level AA such as websites and new social media 
posts.
---------------------------------------------------------------------------

    \203\ See Section 3.3, website Testing, Remediation, and O&M 
Costs, in the accompanying PRIA for the Department's methodology.
---------------------------------------------------------------------------

    The Department estimates O&M costs will be composed of (1) a fixed 
cost for technology to assist with creating accessible content, as well 
as (2) a variable cost that scales according to the size and type of 
content on the website. In general, entities whose websites have higher 
remediation costs are likely to have a higher O&M burden, as 
remediation cost is one useful measure of the amount of web content 
that must conform to WCAG 2.1 Level AA. As such, the Department 
believes that the initial remediation costs serve as a reasonable basis 
for scaling future O&M costs. However, regardless of their initial 
remediation burden, governments may be able to mitigate their ongoing 
costs by developing systems early in the implementation period to 
ensure that accessibility considerations are incorporated at every 
stage of future content creation.
    Annual O&M costs are estimated to be significantly smaller than 
remediation costs because (1) the amount of new material added each 
year will generally be less than the current amount of content and (2) 
the cost to make new content accessible is significantly smaller than 
to remediate existing content. One vendor estimates that making content 
accessible during the development phase is 3-10 times faster, and 
consequently less expensive, than remediating web content after a 
website has been fully launched.\204\ Given the estimate that new web 
content is 3-10 times faster to make accessible than existing content, 
the Department concluded that allocating 10 percent of the time 
originally used to test and remediate sites to O&M each year would be 
more than sufficient to ensure future content is accessible.
---------------------------------------------------------------------------

    \204\ Level Access, The Road to Digital Accessibility, https://www.levelaccess.com/the-road-to-digital-accessibility/ [https://perma.cc/4972-J8TA].
---------------------------------------------------------------------------

    Table 15 displays the undiscounted annual O&M costs for each 
government type. The total annual cost across all State and local 
government entities is estimated to be $741.9 million. O&M costs are 
estimated to accrue over the implementation period following the same 
schedule described for initial costs. Large governments will incur 100 
percent of annual O&M costs starting in Year 3 following promulgation 
of the proposed rule, and small governments would incur these full O&M 
costs beginning in Year 4. For more on annual O&M costs, please see 
Section 3.3.8, Operating and Maintenance (``O&M'') Costs, of the 
accompanying PRIA.
---------------------------------------------------------------------------

    \205\ See Section 3.3.8, Operating and Maintenance (O&M) Costs, 
in the accompanying PRIA for the Department's methodology.

             Table 15--Annual O&M Costs, by Government Type
                            [Thousands] \205\
------------------------------------------------------------------------
                                                               Total
                                           Undiscounted    undiscounted
        Type of Government entity           annual O&M      annual O&M
                                            costs, per     costs for all
                                            entity \a\       entities
------------------------------------------------------------------------
State...................................          $390.3       $19,906.4
County (small)..........................             3.1         6,470.7
County (large)..........................            63.4        58,677.8
Municipality (small)....................             9.2       172,517.7
Municipality (large)....................            55.6        42,622.7
Township (small)........................             7.6       121,724.7
Township (large)........................            15.9         2,482.2
Special district........................             1.1        40,513.9
U.S. territory (small)..................            57.9           115.8
U.S. territory (large)..................           149.2           447.7
School district (small).................             9.6       109,531.3
School district (large).................            70.8        55,156.1
Public university.......................            64.6        48,081.1
Community college.......................            55.5        63,644.5
                                         -------------------------------
    Total...............................             8.1       741,892.6
------------------------------------------------------------------------
\a\ This column presents the mean annual O&M cost across all
  governments, including those that do not have a website.


[[Page 51994]]

    The Department assumes that initial testing and remediation costs 
would be uniformly distributed across the number of implementation 
years for each entity type. In aggregate, it was assumed that large 
entities would incur 50 percent of their initial testing and 
remediation costs during each of Year 1 and Year 2 following the 
promulgation of the rule, and that small entities would incur 33 
percent of their initial testing and remediation costs during each of 
the first three years following the promulgation of the rule. Total 
projected website costs over 10 years are displayed in Table 16, and 
are discussed in Section 3.3.9 of the full PRIA. Present value (``PV'') 
and average annualized costs are displayed using both a 3 percent and 7 
percent discount rate.

          Table 16--Total Projected 10-Year Website Costs \206\
------------------------------------------------------------------------
                                                               Cost
                       Time period                          (millions)
------------------------------------------------------------------------
Year 1..................................................        $2,911.0
Year 2..................................................         3,206.8
Year 3..................................................         2,049.8
Year 4..................................................           741.9
Year 5..................................................           741.9
Year 6..................................................           741.9
Year 7..................................................           741.9
Year 8..................................................           741.9
Year 9..................................................           741.9
Year 10.................................................           741.9
PV of 10-year costs, 3% discount rate...................        11,954.8
Average annualized costs, 3% discount rate..............         1,401.5
PV of 10-year costs, 7% discount rate...................        10,458.6
Average annualized costs, 7% discount rate..............         1,489.1
------------------------------------------------------------------------

c. Mobile App Testing, Remediation, and O&M Costs
---------------------------------------------------------------------------

    \206\ See Section 3.3.9, Total Costs for Website Testing and 
Remediation, in the accompanying PRIA for the Department's 
methodology.
---------------------------------------------------------------------------

    Mobile apps offer convenient access to State and local government 
entities' services, programs, and activities. According to a 2021 U.S. 
Census Bureau report, in 2018, smartphones and tablet devices were 
present in 84 percent and 63 percent of U.S. households, 
respectively.\207\ Mobile apps are relatively new compared to websites, 
and a different technology. Existing tools to evaluate website 
accessibility cannot reasonably be applied to mobile apps and cannot be 
easily altered for mobile app evaluation. The tools that do exist to 
evaluate mobile app accessibility are largely geared towards app 
developers and often require access to mobile app coding.\208\ 
Literature related to accessibility for mobile software is also sparse, 
which may be attributed to the relative lack of tools available to 
assess mobile app accessibility compared with the tools available to 
assess website accessibility.\209\ The Department expects that these 
resources will grow as a result of this rulemaking and a resulting 
greater demand for mobile app accessibility resources.
---------------------------------------------------------------------------

    \207\ Michael Martin, Computer and internet Use in the United 
States: 2018, American Community Survey Reports (Apr. 2021), https://www.census.gov/content/dam/Census/library/publications/2021/acs/acs-49.pdf [https://perma.cc/ST79-PKX5].
    \208\ See id.
    \209\ See id.
---------------------------------------------------------------------------

    Under the proposed rule, mobile apps that State and local 
government entities make available to members of the public or use to 
offer services, programs, and activities to members of the public must 
adhere to WCAG 2.1 Level AA. To evaluate costs associated with mobile 
app compliance, a simple random sample of five entities was selected 
for each type of government. As described in more detail in Section 
3.3.2, Government and Website Sampling, in the accompanying PRIA, 
governments were stratified by size when sampled.
    State and local Government entities are obligated to ensure that 
mobile apps they make available or use to offer services, programs, and 
activities to members of the public are accessible. However, as with 
websites, the Department only identified mobile apps created directly 
for a government. The Department did not include mobile apps developed 
and managed by third parties and used by the sampled government 
entities (``external mobile apps'') because the Department was unable 
to find existing data or literature on the cost to remediate these 
apps, which may differ substantially from internal mobile apps. 
Additionally, many of these external mobile apps are used by multiple 
government clients, so our sample would overcount these apps. However, 
unlike websites, the Department has not included costs for third-party 
mobile apps as a separate cost, because the necessary data are 
unavailable. Exclusion of third-party developed mobile apps from this 
analysis may underestimate costs. The Department believes this 
undercount is offset elsewhere. For example, for State and local 
government entities' mobile apps used to offer services, programs, and 
activities to members of the public, the Department assumed all non-
compliant material would be remediated, but in reality, some material 
that is not actively being used will likely be archived or removed.
    To estimate the number of mobile apps controlled by State and local 
government entities, the Department calculated the average number of 
identified mobile apps per government entity in the sample, by entity 
type. The results of these calculations are presented below in Table 
17. This was multiplied by the number of government entities for each 
respective government type (see Table 11) to estimate the number of 
mobile apps controlled by each government type. Estimates of the total 
number of mobile apps controlled by each government type are presented 
below, in Table 18. These calculations are discussed further in Section 
3.4.1.1, Mobile App Estimation, of the PRIA.
---------------------------------------------------------------------------

    \210\ See Section 3.4.1.1, Mobile App Estimation, in the 
accompanying PRIA for the Department's methodology.

                        Table 17--Average Number of Mobile Apps by Government Type \210\
----------------------------------------------------------------------------------------------------------------
                                                                    Population      Population
                    Type of Government entity                        less than       more than         Total
                                                                      50,000          50,000
----------------------------------------------------------------------------------------------------------------
State...........................................................             N/A            4.40            4.40
County..........................................................            0.20            0.60            0.32
Municipal.......................................................            0.00            1.00            0.04
Township........................................................            0.00            0.20            0.00
Special district................................................            0.00           [\a\]            0.00
School district.................................................            0.40            1.40            0.46
U.S. territory..................................................            0.50            5.33            3.40
Public university...............................................            1.20           [\a\]            1.20

[[Page 51995]]

 
Community college...............................................            0.20           [\a\]            0.20
                                                                 -----------------------------------------------
    Total (special districts and higher education)..............           [\a\]           [\a\]            0.03
                                                                 -----------------------------------------------
    Total (all else)............................................            0.10            1.00            0.15
----------------------------------------------------------------------------------------------------------------
[\a\] Special district, public university, and community college data do not include population. For tables in
  Section VI.A.4.c of this preamble, they are displayed as entities with populations less than 50,000.


                    Table 18--Total Estimated Number of Mobile Apps by Government Type \211\
----------------------------------------------------------------------------------------------------------------
                                                                    Population      Population
                    Type of Government entity                        less than       more than         Total
                                                                      50,000          50,000
----------------------------------------------------------------------------------------------------------------
State...........................................................             N/A             224             224
County..........................................................             421             556             977
Municipal.......................................................               0             766             766
Township........................................................               0              31              31
Special district................................................               0           [\a\]               0
School district.................................................           4,577           1,091           5,668
U.S. territory..................................................               1              16              17
Public university...............................................             893           [\a\]             893
Community college...............................................             229           [\a\]             229
                                                                 -----------------------------------------------
    Total (special districts and higher education)..............           1,122           [\a\]           1,122
                                                                 -----------------------------------------------
    Total (all else)............................................           4,999           2,684           7,683
----------------------------------------------------------------------------------------------------------------
[\a\] Special district, public university, and community college data do not include population. For tables in
  Section VI.A.4.c of this preamble, they are displayed as entities with populations less than 50,000.

    As the Department describes more fully in its PRIA, there is a lack 
of literature related to accessibility testing guidelines, tools, and 
costs for mobile apps. Because of this, the Department assumed that 
costs to test and modify a mobile app for compliance with WCAG 2.1 
Level AA success criteria would be a percentage of the cost to develop 
an ``average'' mobile app, based on the limited literature the 
Department found related to making mobile apps accessible. Using best 
professional judgment, the Department assumed that costs to test and 
modify an existing mobile app for accessibility will be greater than 
half of the cost to develop a mobile app from scratch, but less than 
the total cost of developing a new mobile app. Specifically, the 
Department assumed that the cost to test and modify a mobile app for 
accessibility will be 65 percent of the cost to develop a new mobile 
app. The Department seeks the public's input on this assumption. The 
Department used mobile app development cost data made public by the 
mobile app developer SPD Load in 2022 to estimate an average mobile app 
development cost of $105,000.\212\ This results in an average mobile 
app accessibility testing and modification cost of $68,250 (65 percent 
of $105,000). Some mobile apps may be more complex than others, and 
therefore more expensive to test and modify for accessibility.\213\ The 
Department thus used file size as a proxy for mobile app complexity in 
its analysis.
---------------------------------------------------------------------------

    \211\ Id.
    \212\ SPD Load, How Much Does It Cost to Develop an App in 2022? 
Cost Breakdown, https://spdload.com/blog/app-development-cost/ 
[https://perma.cc/Y2RM-X7VR].
    \213\ Sudeep Srivastava, What Differentiates a $10,000 Mobile 
App From a $100,000 Mobile App?, appinventiv (May 6, 2022), https://appinventiv.com/blog/mobile-app-development-costs-difference/ 
[https://perma.cc/5RBB-W7VP].
---------------------------------------------------------------------------

    Table 19 shows the average costs associated with testing and 
modifying an existing mobile app to conform with WCAG 2.1 Level AA. 
Generally, the estimated costs differ due to variability in the file 
size. The average cost of initial mobile app testing and remediation 
was then multiplied by the total estimated number of mobile apps for 
each respective government type and size (see Table 18) to generate an 
estimated cost to all government entities in each respective category 
(Table 20). Underlying calculations to these tables are discussed 
further in Section 3.4, Mobile App Testing, Remediation, and O&M Costs, 
of the accompanying PRIA.
---------------------------------------------------------------------------

    \214\ See Section 3.4, Mobile App Testing, Remediation, and O&M 
Costs, in the accompanying PRIA for the Department's methodology.

 Table 19--Average Cost To Modify a Mobile App by Government Type \214\
------------------------------------------------------------------------
                                            Population      Population
        Type of Government entity            less than       more than
                                              50,000          50,000
------------------------------------------------------------------------
State...................................             N/A         $61,045
County..................................         $59,356          50,478
Municipal...............................             N/A         121,922
Township................................             N/A          41,624

[[Page 51996]]

 
Special district........................         \a\ N/A           [\a\]
School district.........................          68,250          61,670
U.S. territory..........................         134,991          65,971
Public university.......................      \a\ 52,185           [\a\]
Community college.......................      \a\ 77,478           [\a\]
                                         -------------------------------
    Total (special districts and higher           64,832           [\a\]
     education).........................
                                         -------------------------------
    Total (all else)....................          87,532          67,118
------------------------------------------------------------------------
\a\ Special district, public university, and community college data do
  not include population. For tables in Section VI.A.4.c of this
  preamble, they are displayed as entities with populations less than
  50,000.


                                       Table 20--Initial Mobile App Costs
                                                [Millions] \215\
----------------------------------------------------------------------------------------------------------------
                                                                    Population      Population
                    Type of Government entity                        less than       more than         Total
                                                                      50,000          50,000
----------------------------------------------------------------------------------------------------------------
State...........................................................             N/A           $13.7           $13.7
County..........................................................           $25.0            28.0            53.0
Municipal.......................................................             0.0            93.4            93.4
Township........................................................             0.0             1.3             1.3
Special district................................................         \a\ 0.0           [\a\]             0.0
School district.................................................           312.4            67.3           379.7
U.S. territory..................................................             0.1             1.1             1.2
Public university...............................................        \a\ 46.6           [\a\]            46.6
Community college...............................................        \a\ 17.8           [\a\]            17.8
                                                                 -----------------------------------------------
    Total (special districts and higher education)..............            64.3           [\a\]            64.3
                                                                 -----------------------------------------------
    Total (all else)............................................           337.5           204.7           542.3
----------------------------------------------------------------------------------------------------------------
\a\ Special district, public university, and community college data do not include population. For tables in
  Section VI.A.4.c of this preamble, they are displayed as entities with populations less than 50,000.

    Costs for the proposed rule are expected to be incurred at 
different times for each type of government entity because of 
differences in proposed implementation timelines. Government entities 
serving populations over 50,000 will have two years to implement the 
proposed rule, and costs are assumed to be distributed evenly across 
the two implementation years. Government entities serving populations 
of less than 50,000 and special districts will have three years to 
implement the proposed rule, and costs are assumed to be distributed 
evenly among the three implementation period years. Public 
postsecondary institutions are generally associated with large 
governments, and consequently, for purposes of this analysis, the 
Department assumes that public postsecondary institutions will have two 
years to implement the rule.
---------------------------------------------------------------------------

    \215\ Id.
---------------------------------------------------------------------------

    Additionally, the Department assumed that State and local 
Government entities will incur O&M costs associated with accessibility 
maintenance starting after the proposed rule's implementation period. 
The Department, using best professional judgment due to the absence of 
applicable data, assumed that added O&M costs associated with 
accessible mobile apps are equal to 10 percent of O&M costs associated 
with an average mobile app. The Department used a publicly available 
data range to calculate average annual mobile app O&M costs and 
estimate the annual cost of O&M for an average mobile app.\216\ The 
estimated average annual cost of O&M per mobile app ($375) was 
multiplied by 10 percent to calculate expected additional O&M costs 
incurred as a result of compliance with the proposed rule ($37.50). The 
Department then multiplied expected additional O&M costs per app by the 
total estimated number of mobile apps. Undiscounted costs of compliance 
with the proposed rule over a 10-year period, PV of costs, and average 
annualized costs are presented in Table 21 and discussed further in 
Section 3.4, Mobile App Testing, Remediation, and O&M Costs, of the 
accompanying PRIA.
---------------------------------------------------------------------------

    \216\ Michael Georgiou, Cost of Mobile App Maintenance in 2022 
and Why It's Needed, Imaginovation Insider (June 30, 2022), https://imaginovation.net/blog/importance-mobile-app-maintenance-cost/ 
[https://perma.cc/UY5K-6FKC].
    \217\ See Section 3.4, Mobile App Testing, Remediation, and O&M 
Costs, in the accompanying PRIA for the Department's methodology.

                  Table 21--Timing of Mobile App Costs
                            [Millions] \217\
------------------------------------------------------------------------
                       Time period                             Costs
------------------------------------------------------------------------
Year 1..................................................          $247.1
Year 2..................................................           247.1
Year 3..................................................           112.6
Year 4..................................................             0.3
Year 5..................................................             0.3
Year 6..................................................             0.3
Year 7..................................................             0.3
Year 8..................................................             0.3
Year 9..................................................             0.3
Year 10.................................................             0.3
PV of 10-year costs, 3% discount rate...................           577.7
Average annualized costs, 3% discount rate..............            67.7
PV of 10-year costs, 7% discount rate...................           540.1

[[Page 51997]]

 
Average annualized costs, 7% discount rate..............            76.9
------------------------------------------------------------------------

d. Postsecondary Education
    The proposed rule distinguishes between public postsecondary 
institutions' public-facing websites, mobile apps, and password-
protected course material. Costs were estimated separately for these 
three categories.
    Public-facing websites were assessed for current levels of 
compliance using SortSite, a software application the Department used 
to assess accessibility in tandem with manual testing.\218\ For this 
cost component, unstratified random samples were drawn consisting of 10 
public four-year universities and 10 public community colleges.\219\ 
Whereas the Department searched for and scanned other State and local 
government entities' secondary websites, only the main site was scanned 
for postsecondary institutions. Instead, the Department estimated that 
postsecondary institutions' secondary websites would incur testing and 
remediation costs equal to 1.1 times the testing and remediation costs 
of their main websites. Postsecondary institutions were found to have 
main website costs that were most similar to those of large school 
districts and large counties, and for those two types of government 
entities, secondary websites incur 1.1 times the cost of the main 
websites, on average. Large school districts and large counties also 
have 5.7 times as many secondary websites as main websites and their 
secondary websites have 0.25 times the number of PDFs as their main 
websites. Those ratios were used in estimating numbers of higher 
education secondary websites and secondary website PDF costs. For a 
more complete discussion of the Department's methodology, please see 
Section 3.5.1, Postsecondary Education Overview, of the accompanying 
PRIA.
---------------------------------------------------------------------------

    \218\ The Department's basis for selecting SortSite, as well as 
its methods for using SortSite in tandem with manual testing, are 
described in more detail in the full PRIA.
    \219\ Technical colleges were included with community colleges.
---------------------------------------------------------------------------

    Postsecondary institutions' mobile app costs were assessed 
separately using the Department's methodology for mobile app 
calculation. This is discussed in full in the Department's PRIA.
    Given that website accessibility scanning software is not 
compatible with password-protected sites, costs to remediate online 
course content were estimated with a different method. As an overview, 
the Department used a probabilistic model to estimate the proportion of 
courses that would require remediation during the first year of 
remediating course content under the proposed rule (the first year 
after implementation). As discussed in more detail in the full PRIA, 
the Department determined as a result of its modeling that virtually 
all remaining courses would be remediated in the second year of 
remediating course content. The Department does not expect that courses 
will be made accessible in a significant way in the absence of the 
rule, though this assumption is based on literature on trends in web 
accessibility rather than statistical modeling. The high rate at which 
courses will need remediation under the proposed rule is a notable 
finding of the Department's analysis, which has major implications for 
students with disabilities. The Department also conducted sensitivity 
analyses to ensure the PRIA accounts for a range of possibilities on 
course remediation.
    O&M costs for course content were estimated at a higher annual rate 
than for websites to account for new courses that may be introduced, 
additional captioning associated with video lectures, and the like. 
This is further described in the Department's full PRIA.
    Under the proposed rule, password-protected postsecondary course 
content (e.g., course content provided through third-party learning 
management systems) must be made accessible when an institution is on 
notice that a student with a relevant disability is enrolled in a 
particular class. Using data from the 2021 SIPP, the Department 
estimated the prevalence of students with either a hearing, vision, 
manual dexterity, or cognitive disability. The Department estimated 
prevalence values for individuals aged 18-22 to account for the 
conventional school age population that attends four-year institutions 
and used an age range of 17-29 for community college students.\220\ The 
Department recognizes that these age ranges do not represent the entire 
postsecondary population, and that they may underestimate disability 
prevalence by excluding older populations who may be more likely to 
have disabilities. However, given the need to define the population's 
age in order to estimate disability prevalence, the Department feels 
that these are appropriate ranges for this cost estimation.
---------------------------------------------------------------------------

    \220\ The range 17-29 was calculated from National Center for 
Education Statistics data and includes 80 percent of the community 
college population.
---------------------------------------------------------------------------

    The Department understands that only a portion of students with 
disabilities will require course remediation. Data in the High School 
Longitudinal Study (``HSLS'') of 2009, conducted by the National Center 
for Education Statistics (``NCES''), suggests that 37 percent of 
students with disabilities report their disability to their college or 
university.\221\ Applying this proportion to the disability prevalence 
rates for students with a vision, hearing, dexterity, or cognitive 
disability, yields the percent of individuals aged 18-22 and 17-29 who 
will report a relevant disability to their college or university. 
However, because the HSLS reports the fraction of students with any 
disability who report their disability to the school, and not the 
fraction of students with either a vision, hearing, dexterity, or 
cognitive disability who report their disability to the school, this 
number may be an over- or underestimate depending on the variability in 
the likelihood that students with specific disabilities report their 
disability to the school. To estimate average class sizes, the 
Department used Common Data Set (``CDS'') reports from 21 public 
universities and 10 community colleges, resulting in an average of 29.8 
students per class in public universities and 20.4 students per class 
in community colleges.\222\
---------------------------------------------------------------------------

    \221\ Institute of Education Sciences, Use of Supports Among 
Students with Disabilities and Special Needs in College Supp. Tbl. 2 
(Apr. 2022), https://nces.ed.gov/pubs2022/2022071/index.asp [https://perma.cc/RSY3-TQ46].
    \222\ See Common Data Set Initiative, https://commondataset.org/ 
(last visited June 15, 2023).
---------------------------------------------------------------------------

    When estimating the percent of courses that will be remediated in 
each year, the Department found that, within two years following 
implementation, virtually all postsecondary courses will have been 
remediated. Specifically, the probability function discussed in Section 
3.5.2.2, Probabilistically Calculating the Rate of Course Remediation, 
in the Department's PRIA shows that by the end of year four (two years 
after postsecondary schools begin to remediate course content), 96 
percent of courses offered by public four-year and postgraduate 
institutions and 90 percent of courses offered by community colleges 
will have been remediated. The Department assumes that despite having 
some courses for which remediation has not been requested by year five, 
postsecondary institutions will finish remediation on their own to 
preempt requests in the

[[Page 51998]]

following year. For institutions that wait to remediate outstanding 
courses, the costs will be negligible because the number of outstanding 
courses is projected to be low, and because in year three entities will 
likely have ensured that their LMS supports accessibility and that 
their instructors have appropriate tools and training. These findings 
about the rapidity of course remediation speak to the necessity and 
importance of this rule. Table 22 shows the assumptions, data, and 
methods from Section 3.5, Postsecondary Education, of the accompanying 
PRIA to estimate course costs.
---------------------------------------------------------------------------

    \223\ See Section 3.5, Postsecondary Education, in the 
accompanying PRIA for the Department's methodology.
    \224\ Beverly Farr et al., A Needs Assessment of the 
Accessibility of Distance Education in the California Community 
College System Part II: Costs and Promising Practices Associated 
with Making Distance Education Courses Accessible, MPR Associates, 
Inc. (May 2009), https://files.eric.ed.gov/fulltext/ED537862.pdf 
[https://perma.cc/LFT7-R2CL].
    \225\ Cyndi Rowland, GOALS Cost Case Study: Cost of Web 
Accessibility in Higher Education, Gaining Online Accessible 
Learning through Self-Study (Dec. 2014), https://www.ncdae.org/documents/GOALS_Cost_Case_Study.pdf [https://perma.cc/UH6V-SBTU].

                                    Table 22--Course Remediation Costs \223\
----------------------------------------------------------------------------------------------------------------
                                                    Public         Community
                  Description                     university        college                  Source
----------------------------------------------------------------------------------------------------------------
Age range.....................................           18-22           17-29  NCES.
Average class size............................            29.8            20.4  CDS Data.
Prevalence of disabilities....................            0.13            0.12  SIPP Data.
Share of students with a disability who notify            0.37            0.37  HSLS.
 school.
Share of students who have a relevant                     0.05            0.04  Calculation.
 disability and notify school.
Total number of courses offered...............       1,803,277         965,097  Calculation.
Number of courses remediated first semester...         900,406         383,766  Calculation.
Cost per course...............................          $1,690          $1,690  Farr et al. (2009).\224\
                                                                                 NCDAE.\225\
First semester cost for all institutions              $1,521.6          $648.5  Calculation.
 (millions).
First semester mean cost per institution                  $2.0            $0.6  Calculation.
 (millions).
Number of courses remediated second semester..         563,214         269,294  Calculation.
Second semester course remediation costs                $951.8          $455.1  Calculation.
 (millions).
First year cost (millions)....................        $2,473.4        $1,103.6  Calculation.
Courses remediated in Year 2..................         339,656         312,037  Calculation.
Year 2 course remediation cost (millions).....          $574.0          $527.3  Calculation.
Total costs to remediate all courses                  $3,047.4        $1,630.9  Calculation.
 (millions).
Mean cost per institution to remediate all                $4.1            $1.4  Calculation.
 courses (millions).
Mean cost per student to remediate all courses          $340.7          $341.4  Calculation.
Yearly O&M cost per course....................            $253            $253  Calculation.
Total yearly O&M cost (millions)..............          $609.5          $326.2  Calculation.
Mean O&M cost per institution.................        $819,198        $285,380  Calculation.
----------------------------------------------------------------------------------------------------------------

    The Department calculated the proportion of classes requiring 
remediation on a per school basis using a methodology outlined in the 
PRIA, and with that number calculated the total number of classes 
offered by a school requiring remediation. The Department developed a 
per-course cost estimate because it believes that password-protected 
course content is unique in its combination of level of complexity, 
volume of material, and distribution of content compared to other 
government web content. These qualities distinguish it from other 
government entities' web contents, which necessitate a separate 
estimation approach. Though literature on the cost of remediating 
course content to WCAG 2.1 Level AA is sparse, the Department used 
findings from Farr et al. (2009) \226\ and the National Center on 
Disability and Access to Education (``NCDAE'') GOALS Course Cost Case 
Study (2014),\227\ to estimate the cost to remediate a course to be 
$1,690. Each of these studies presented ranges of cost estimates for 
``simple'' and ``complex'' courses.\228\ To generate an average course 
cost, the Department took the midpoint of the given ranges and 
generated a weighted average from the two studies' ``simple'' and 
``complex'' course cost estimates using survey data from Farr et al. 
(2009) that estimated 40 percent of classes to be complex, and 60 
percent of classes to be simple.\229\ A full explanation of the 
Department's methodology on course cost estimates can be found in 
Section 3.5.2.3 of the accompanying PRIA.
---------------------------------------------------------------------------

    \226\ Beverly Farr et al., A Needs Assessment of the 
Accessibility of Distance Education in the California Community 
College System Part II: Costs and Promising Practices Associated 
with Making Distance Education Courses Accessible, MPR Associates, 
Inc. (May 2009), https://files.eric.ed.gov/fulltext/ED537862.pdf 
[https://perma.cc/LFT7-R2CL].
    \227\ Cyndi Rowland et al., GOALS Cost Case Study: Cost of Web 
Accessibility in Higher Education, Gaining Online Accessible 
Learning through Self-Study (Dec. 2014), https://www.ncdae.org/documents/GOALS_Cost_Case_Study.pdf [https://perma.cc/UH6V-SBTU].
    \228\ ``Simple'' courses are loosely defined as courses that 
mostly house images and documents.
    \229\ See Farr et al., at 5. As part of this study, experts were 
interviewed on online learning to estimate the proportion of classes 
which are simple or complex. These estimates are discussed 
throughout the paper and are first referenced on page 5.
---------------------------------------------------------------------------

    The Department then multiplied the sum of the number of all 
institutions' first semester courses requiring remediation by the cost 
per course to estimate a total first-semester cost to remediate 
courses. The Department expects the first semester to be the most 
expensive as it will be the semester with the smallest amount of 
existing compliance, and therefore the greatest number of classes that 
are out of compliance with WCAG 2.1 Level AA. In subsequent semesters, 
those courses that have been previously remediated will already be 
accessible, meaning the total pool of classes needing remediation will 
decrease over time. The Department estimates that 46 percent of all 
classes offered between community colleges and four-year and 
postgraduate institutions will be remediated in the first semester, 
costing a total of $2.2 billion. On a per-student basis, this is $170 
for four-year and postgraduate institutions and $136 for community 
colleges. A full explanation of the Department's methodology can be

[[Page 51999]]

found in Section 3.5, Postsecondary Education of the accompanying PRIA.
    To calculate second-semester classes requiring remediation, the 
Department used the same proportion of classes needing remediation but 
calculated a new number of classes that are eligible for remediation. 
The Department estimates that there is a 50 percent overlap in classes 
offered during semester one and semester two. Using that estimate, the 
Department calculated the number of second semester classes eligible 
for remediation as half the number of classes in the first semester 
plus the courses which are offered both semesters but were not 
remediated in semester one. The Department estimates that 563,214 
public four-year and postgraduate courses and 269,294 community college 
courses will need to be remediated in semester two, which will cost a 
total of $1.4 billion. Because the Department's estimated rate of 
remediation is relatively high (the modeling above yields a 75 percent 
remediation rate in semester one for four-year institutions, and a 60 
percent remediation rate in semester one for community colleges), the 
Department assumed that by the end of the second year of remediation, 
all postsecondary institutions will have remediated all currently 
offered courses. For the Department's detailed methodology, see Section 
3.5.2.2, Probabilistically Calculating the Rate of Course Remediation, 
of the accompanying PRIA.
    Following this remediation period, the Department estimates yearly 
O&M costs to be 15 percent of initial remediation costs, amounting to 
$253 per class. As discussed more fully in its PRIA, the Department 
estimates general O&M costs to be 10 percent of total remediation 
costs. Given that course content often contains video-based lectures 
requiring closed captioning, and content that is updated more 
frequently than general web content, the Department assumes a 50 
percent higher O&M cost for course content than for general web 
content. Additionally, this 50 percent higher estimate accounts for the 
cost of developing new accessible courses. The full 10-year costs of 
the rule for course remediation and O&M costs are presented in Table 
23, along with PV and annualized costs. A full explanation of the 
Department's methodology can be found in Section 3.5, Postsecondary 
Education, of the PRIA.

                         Table 23--Projected 10-Year Costs for Course Remediation \230\
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                      Public         Community
                        Institution type                            university        college          Total
----------------------------------------------------------------------------------------------------------------
Year 1..........................................................              $0              $0              $0
Year 2..........................................................               0               0               0
Year 3..........................................................           2,473           1,104           3,577
Year 4..........................................................           1,069             748           1,817
Year 5..........................................................             609             326             936
Year 6..........................................................             609             326             936
Year 7..........................................................             609             326             936
Year 8..........................................................             609             326             936
Year 9..........................................................             609             326             936
Year 10.........................................................             609             326             936
PV, 3% discount rate............................................           6,147           3,245           9,391
PV, 7% discount rate............................................           5,051           2,658           7,708
Annualized cost, 3% discount rate...............................             721             380           1,101
Annualized cost, 7% discount rate...............................             719             378           1,097
----------------------------------------------------------------------------------------------------------------

e. Elementary and Secondary Class or Course Content Remediation
---------------------------------------------------------------------------

    \230\ See Section 3.5, Postsecondary Education, in the 
accompanying PRIA for the Department's methodology.
---------------------------------------------------------------------------

    Under the proposed rule, password-protected course content (e.g., 
content provided through third-party learning management systems) in a 
public elementary or secondary school generally must be made accessible 
when a student with a disability is enrolled in the course or when a 
student is enrolled whose parent has a disability. This section 
summarizes the Department's analysis of the costs for elementary and 
secondary education institutions to make this content accessible, which 
is discussed in depth in Section 3.6, Elementary and Secondary Course 
Content Remediation, of the PRIA. Much of the methodology used is 
similar to that for course remediation costs for postsecondary 
education. The Department estimates that annualized costs with a 3 
percent discount rate for elementary and secondary education 
institutions are $195 million. Additionally, these institutions will 
incur some O&M costs after implementation.
    NCES publishes a list of all public schools in the United States 
with enrollment counts by grade level for kindergarten (grade K) 
through 12th grade.\231\ Best available estimates suggest 66 percent of 
all schools (public and private) have an LMS and the Department assumed 
that this number will not change significantly in the next 10 years in 
the presence or absence of this rule.\232\ The Department made this 
assumption due to a lack of available data, and the Department notes 
that even if there were an increase in the percent of schools with an 
LMS, this would increase both costs and benefits, likely resulting in a 
nominal impact to the net benefits of the rule. Using these data, the 
number of public schools with an LMS was computed by grade level. The 
Department estimated the number of unique classes or courses offered 
per school and per grade level, and then used this value to calculate 
the total number of LMS classes or courses that must be remediated in 
each school.\233\

[[Page 52000]]

Table 24 presents the assumptions for the number of unique LMS classes 
or courses offered per grade level, based on the Department's best 
professional judgment. The number of unique classes or courses is lower 
for earlier grade levels \234\ and increases in higher grade levels as 
education becomes more departmentalized (i.e., students move from 
teacher to teacher for their education in different subjects) and 
schools generally introduce more elective offerings as students 
progress toward grade 12.\235\
---------------------------------------------------------------------------

    \231\ Institute of Education Sciences, ELSI Elementary/Secondary 
Information System 2020-21 Public School Student Enrollments by 
Grade, National Center for Education Statistics, https://nces.ed.gov/ccd/elsi/default.aspx. A Perma archive link was 
unavailable for this citation.
    \232\ Frank Catalano, Pandemic Spurs Changes in the Edtech 
Schools Use, From the Classroom to the Admin Office, EdSurge (Jan. 
2021), https://www.edsurge.com/news/2021-01-26-pandemic-spurs-changes-in-the-edtech-schools-use-from-the-classroom-to-the-admin-office [https://perma.cc/N2Y3-UKM2].
    \233\ To the extent that the percentage of public schools with 
an LMS is lower than the percentage of private schools, the analysis 
presented here overestimates the true elementary and secondary class 
or course remediation costs.
    \234\ Standardized curricula and relatively lower mean 
enrollments in earlier grade levels tend to decrease the number of 
unique class or course offerings per grade level, which would reduce 
the number of LMS classes or courses that must be remediated.
    \235\ According to NCES, in the 2017-2018 school year, 24 
percent of elementary school classes were departmentalized, compared 
to 93 percent of middle schools and 96 percent of high schools. 
National Teacher and Principal Survey, NCES, https://nces.ed.gov/surveys/ntps/tables/ntps1718_fltable06_t1s.asp [https://perma.cc/8XAK-XK4L].

                           Table 24--Calculation of Elementary and Secondary Class or Course Remediation Costs, by Grade Level
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              Cost to
                                                             Number of       Number of     Number of LMS     Number of      remediate a     Total cost
                       Grade level                          schools [a]    schools with     courses per     courses to       year-long      (millions)
                                                                            an LMS [b]      grade level      remediate        course
--------------------------------------------------------------------------------------------------------------------------------------------------------
K.......................................................          52,155          34,422               1          34,422            $182            $6.3
1.......................................................          52,662          34,757               1          34,757             182             6.3
2.......................................................          52,730          34,802               1          34,802             182             6.3
3.......................................................          52,661          34,756               1          34,756             182             6.3
4.......................................................          52,363          34,560               1          34,560             182             6.3
5.......................................................          50,903          33,596               7         235,172             364            85.7
6.......................................................          35,032          23,121               7         161,848             364            59.0
7.......................................................          29,962          19,775               7         138,424             364            50.5
8.......................................................          30,161          19,906               7         139,344             364            50.8
9.......................................................          23,843          15,736              14         220,309             994           219.0
10......................................................          24,200          15,972              14         223,608             994           222.3
11......................................................          24,322          16,053              14         224,735             994           223.4
12......................................................          24,304          16,041              14         224,569             994           223.2
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................             N/A             N/A             N/A             N/A             N/A         1,165.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] This represents the number of schools with nonzero enrollment in the listed grade level. As such, a single school can be represented on multiple
  rows.
[b] This represents the number of schools with an LMS and nonzero enrollment in the listed grade level.

    As discussed in its assessment of postsecondary education costs, 
the Department estimated costs to remediate a single postsecondary 
course using two estimates from Farr et al. (2009) \236\ and the NCDAE 
GOALS Course Case Study.\237\ Those papers also estimate the cost of 
remediating a ``simple'' college course. The Department assumes that a 
high school course is equivalent in its complexity to a ``simple'' 
college course and used estimates on time spent on homework to scale 
course costs for different grade levels. For a more complete discussion 
of course cost estimates, please see Section 3.6 of the accompanying 
PRIA. Summing across all grade levels yields total costs of $1.2 
billion. Table 25 presents the costs incurred in the first 10 years 
following promulgation of the rule, by entity type. For each year after 
completing class or course remediation, the Department assumed 
elementary and secondary school districts would incur an O&M cost equal 
to 10 percent of the initial remediation cost. The Department assumes 
costs will not be incurred until the year required by the rule (Year 4 
for small entities and Year 3 for large entities) because classes or 
courses would not be remediated until necessary. The Department expects 
that elementary and secondary classes or courses will be remediated at 
a faster rate than postsecondary courses, given that the proposed rule 
generally requires elementary and secondary educational web content to 
be accessible if requested by either the child or their parent(s), 
whereas postsecondary course provisions in the rule do not provide for 
parent(s) to request accessible web content. As such, the Department 
expects that virtually all class or course content will be remediated 
by elementary and secondary educational institutions in the first year 
required under the rule.
---------------------------------------------------------------------------

    \236\ Beverly Farr et al., A Needs Assessment of the 
Accessibility of Distance Education in the California Community 
College System Part II: Costs and Promising Practices Associated 
with Making Distance Education Courses Accessible, MPR Associates, 
Inc. (May 2009), https://files.eric.ed.gov/fulltext/ED537862.pdf 
[https://perma.cc/LFT7-R2CL].
    \237\ Cyndi Rowland et al., GOALS Cost Case Study: Cost of web 
accessibility in higher education, Gaining Online Accessible 
Learning through Self-Study, (Dec. 2014), https://www.ncdae.org/documents/GOALS_Cost_Case_Study.pdf [https://perma.cc/UH6V-SBTU].

                              Table 25--Projected 10-Year Course Remediation Costs
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                  Cost for small  Cost for large
                           Time period                                school          school        Total costs
                                                                     districts       districts
----------------------------------------------------------------------------------------------------------------
Year 1..........................................................              $0              $0              $0
Year 2..........................................................               0               0               0
Year 3..........................................................               0             551             551
Year 4..........................................................             614              55             670
Year 5..........................................................              61              55             117

[[Page 52001]]

 
Year 6..........................................................              61              55             117
Year 7..........................................................              61              55             117
Year 8..........................................................              61              55             117
Year 9..........................................................              61              55             117
Year 10.........................................................              61              55             117
PV, 3% discount rate............................................             842             818           1,660
PV, 7% discount rate............................................             692             692           1,384
Annualized cost, 3% discount rate...............................              99              96             195
Annualized cost, 7% discount rate...............................              99              99             197
----------------------------------------------------------------------------------------------------------------

f. Costs for Third-Party Websites and Mobile Apps
    Some government entities use third-party websites and mobile apps 
to provide government services, programs, and activities. The 
Department estimated costs to modify existing third-party websites that 
are used to provide government services. Third-party costs related to 
mobile apps are unquantified because the Department was unable to find 
existing data or literature on the subject.
    These numbers should be interpreted with caution because they 
include significant uncertainty. Limited information exists regarding 
the number of third-party websites and mobile apps employed by 
government entities. Additionally, little research has been conducted 
assessing how government entities use third-party website and mobile 
app services.
    To estimate costs incurred from third-party website compliance, the 
Department used a convenience sub-sample of the full sample of 
government entities. This sub-sample includes 106 government entities 
and was not stratified to ascertain representativeness among various 
government entities. The Department used SortSite inventory reports to 
identify third-party websites that provide government services on 
behalf of sampled government entities. Counts were then adjusted to 
reflect that some third-party websites are used by more than one 
government. For each government entity type, the Department calculated 
the ratio of third-party websites in the sample to total government 
websites in the sample. Across all entity types, the average ratio is 
0.042, or 4.2 percent.
    The Department reviewed the literature for reputable estimates of 
the average cost of modifying a third-party website that provides 
government services to the public for WCAG 2.1 AA compliance. In the 
absence of existing reputable estimates, the Department opted to use 
average government website testing and remediation costs generated in 
this study as an approximation. Government website testing and 
remediation cost estimates for each government entity type were 
multiplied by the third-party to government website ratios to estimate 
costs from third-party website compliance with WCAG 2.1 AA.
    In aggregate, there are estimated to be 0.04 third-party websites 
for every government website. If all costs were passed along to 
governments, governments would incur additional costs for remediating 
third-party websites equivalent to about 4 percent of the costs to test 
and remediate their own websites. The present value of total 10-year 
costs incurred from third-party website compliance is estimated to be 
$671.7 million at a discount rate of 3 percent and $587.8 at a discount 
rate of 7 percent. These values are displayed in Table 26.

   Table 26--Projected Total Costs of Remediating Third-Party Websites
                               [Millions]
------------------------------------------------------------------------
                                                            Total costs
                       Time period                        (all entities)
------------------------------------------------------------------------
Year 1..................................................          $165.2
Year 2..................................................           181.9
Year 3..................................................           112.1
Year 4..................................................            41.6
Year 5..................................................            41.6
Year 6..................................................            41.6
Year 7..................................................            41.6
Year 8..................................................            41.6
Year 9..................................................            41.6
Year 10.................................................            41.6
PV of 10-year costs, 3% discount rate...................           671.7
Annualized costs, 3% discount rate......................            78.7
PV of 10-year costs, 7% discount rate...................           587.8
Annualized costs, 7% discount rate......................            83.7
------------------------------------------------------------------------

g. Sensitivity and Uncertainty Analyses of Costs
    The Department's cost estimates rely on a variety of assumptions 
based on literature and other information that, if changed, could 
impact the cost burden to different government entities. To better 
understand the uncertainty behind its cost estimates, the Department 
performed several sensitivity analyses on key assumptions in its cost 
model. A full summary of the Department's high and low-cost estimates 
is in Table 28. Other assumptions not altered here also involve a 
degree of uncertainty and so these low and high estimates should not be 
considered absolute bounds.
    For website testing and remediation costs, the Department adjusted 
its estimate of the effectiveness of automated accessibility checkers 
such as SortSite at identifying accessibility errors. In its primary 
analysis, the Department relied on its own manual assessment of several 
web pages to estimate the fraction of remediation time that the errors 
SortSite caught accounted for among all errors present. This approach 
found that SortSite caught errors corresponding to 50.6 percent of the 
time needed to remediate a website, leading to a manual adjustment 
factor of 1.98. This manual adjustment factor was multiplied by the 
remediation time estimated using the SortSite output for each website 
in the sample. Vigo, Brown, and Conway (2013), by contrast, found that 
SortSite correctly identified 30 percent of the accessibility errors on 
a given website.\238\ This finding is not

[[Page 52002]]

necessarily inconsistent with the results of the Department's analysis, 
however, since the paper's authors merely count instances of errors, 
without considering the relative severity of errors. Nevertheless, the 
Department conservatively replicated its analysis using the 30 percent 
estimate for SortSite's comprehensiveness, which amounts to an 
adjustment factor of 3.33. This altered assumption resulted in a 10-
year total website testing and remediation cost of $19.2 billion at a 3 
percent discount rate, which is $7.2 billion more than the primary 
estimate of $12.0 billion. The analysis for estimating costs of 
remediating third-party websites was replicated using the same altered 
assumption of SortSite's comprehensiveness, resulting in a 10-year 
total third-party website testing and remediation cost of $1.1 billion. 
This is $400 million more than the primary estimate of $672 million.
---------------------------------------------------------------------------

    \238\ Markel Vigo et al., Benchmarking Web Accessibility 
Evaluation Tools: Measuring the Harm of Sole Reliance on Automated 
Tests, International Cross-Disciplinary Conference on Web 
Accessibility (May 2013), https://www.researchgate.net/profile/Markel-Vigo/publication/262352732_Benchmarking_web_accessibility_evaluation_tools_Measuring_the_harm_of_sole_reliance_on_automated_tests/links/56333eee08ae911fcd4a99a7/Benchmarking-web-accessibility-evaluation-tools-Measuring-the-harm-of-sole-reliance-on-automated-tests.pdf . A 
Perma archive link was unavailable for this citation.
---------------------------------------------------------------------------

    The Department also reexamined its assumptions concerning PDFs that 
State and local government entities would choose to remediate. In the 
primary analysis, it was assumed that only those PDFs that had last 
been modified prior to 2012 would be removed or archived rather than 
remediated. This assumption resulted in an estimate that 15 percent of 
PDFs currently hosted on government websites would be taken down or 
archived. To approximate an upper bound on the number of PDFs 
government entities would choose to archive, the Department reconducted 
its website cost analysis with the assumption that 50 percent of PDFs 
on State and local government entities' websites would be archived or 
removed rather than remediated. This calculation resulted in website 
costs of $11.6 billion discounted at 3 percent over 10 years, $311 
million less than the primary estimate of $12.0 billion. Once again, 
the analysis for estimating costs of remediating third-party websites 
(described in Section VI.A.4.f of this preamble) was replicated using 
this altered PDF archival rate, resulting in a 10-year total third-
party website testing and remediation cost of $654 million. This is $17 
million less than the primary estimate of $672 million.
    For postsecondary course remediation cost, the Department 
calculated costs over an increased timeline to generate a low-cost 
estimate. In its initial calculations, the Department estimated 
disability prevalence using SIPP data, calculated that the majority of 
classes will be remediated in the first year following the 
implementation of the rule, and determined that any outstanding classes 
will be remediated in the second year. However, the prevalence rates 
used from SIPP data are higher estimates than estimates from the 
American Community Survey (``ACS''). If the true disability prevalence 
of the college population is lower than was estimated for these 
analyses, then fewer courses will need remediation per year. The 
Department found that in a scenario where one third of courses are 
remediated per year, the annualized cost at a 3 percent discount rate 
is $992 million, $109 million less than its primary estimate.\239\
---------------------------------------------------------------------------

    \239\ The Department chose \1/3\ to create a scenario with a 
more flexible remediation timeline, which implies that all courses 
get remediated within three years instead of two.
---------------------------------------------------------------------------

    To generate a high-cost estimate for higher education, the 
Department evaluated a higher per-course remediation cost. In its 
primary estimates, the Department used data from two studies that 
estimated costs to make a course accessible. These studies were 
conducted in 2009 and 2014 respectively, and the online landscape of 
postsecondary education has changed since then. COVID-19 and the 
subsequent distance learning at higher education institutions may have 
increased the amount of course content that is offered through online 
portals. If this is the case, it is possible that there is more content 
that needs to be remediated than there was at the time of the studies 
on which the Department bases its course cost estimates, and that 
because of that there is less accessible course content.\240\ To 
account for this, the Department used the higher estimates for complex 
course remediation given in Farr et al. (2009) and the GOALS Cost Case 
Study from the NCDAE to estimate a cost of $1,894 per course (compared 
with $1,690 in the primary estimate), and an O&M cost of $284 per 
course (compared with $253 in the primary estimate). Under these 
conditions, the Department found the annualized cost of course content 
remediation to be $1.21 billion, $112 million more than its primary 
estimates.
---------------------------------------------------------------------------

    \240\ Conversely, it is also possible that a shift to online 
learning has made the higher education community more aware of web 
accessibility issues, and therefore increased the rate of WCAG 2.1 
compliance.
---------------------------------------------------------------------------

    To estimate class or course remediation costs for elementary and 
secondary institutions, the Department made assumptions about the 
number of LMSs that students interface with at each grade level. In 
addition, the Department had to estimate the average cost to remediate 
each of those LMS's content to be compliant with WCAG 2.1 Level AA. The 
Department performed a sensitivity analysis on these assumptions to 
create upper and lower bounds on cost.
    For the upper bound, the Department increased the number of LMSs 
that students interact with in each semester. The Department raised the 
assumption from 1 LMS to 2 for students in grades K-4, from 7 LMSs to 
10 in grades 5-8, and from 14 LMSs to 20 in grades 9-12. In addition, 
the Department created a continuum of costs between its low estimate of 
$182 and its high estimate of $994, allocating costs that increase 
linearly with each subsequent grade level, and effectively raising the 
average cost to remediate class or course content. These changes raised 
the annualized cost with a 3 percent discount rate from $195 million to 
$312 million.
    For the lower bound, the Department adjusted the same parameters 
downwards. The Department kept the same estimate of one LMS for grades 
K-4, decreased the number of LMSs for grades 5-6 from seven to five, 
and decreased the number of LMSs for grades 9-12 from 14 to 10. For 
class or course remediation costs, the Department halved the estimated 
costs to remediate a class for all grades. When applying these changes, 
the annualized cost with a 3 percent discount rate decreased from $195 
million dollars to $75 million dollars.
    The Department conducted sensitivity analyses to assess the mobile 
apps cost model by varying the assumption that the cost to test and 
modify an existing mobile app for accessibility is equal to 65 percent 
of the cost to build an ``average'' mobile app. In the sensitivity 
analysis the Department assumed that State and local government 
entities mostly control either ``simple'' or ``complex'' mobile apps, 
rather than ``average'' mobile apps. Simple mobile apps are less costly 
to build than the average mobile app. The expected cost of building a 
simple mobile app is estimated to be $50,000, compared with $105,000 
for an average mobile app.\241\ The cost of testing and modifying a 
simple mobile app for accessibility is assumed to be 65 percent of the 
cost to build a simple mobile app, equal to $32,500. Using this 
assumption based on simple mobile apps, PV of total mobile app testing 
and remediation

[[Page 52003]]

costs decreases from $597.8 million to $285.7 million.
---------------------------------------------------------------------------

    \241\ SPD Load, How Much Does It Cost to Develop an App in 2022? 
Cost Breakdown, https://spdload.com/blog/app-development-cost/ 
[https://perma.cc/Y2RM-X7VR].
---------------------------------------------------------------------------

    Conversely, complex mobile apps are costlier to build than both 
simple mobile apps and the ``average'' mobile app. The expected cost of 
building a complex mobile app is $300,000, compared with $105,000 for 
the average mobile app.\242\ The cost to test and modify a complex 
mobile app for accessibility is assumed to be 65 percent of the cost to 
build a complex mobile app, equal to $195,000. Using this assumption 
based on complex mobile apps, PV of total mobile app testing and 
remediation costs increase from $597.8 million to $1.1 billion.
---------------------------------------------------------------------------

    \242\ Id.
---------------------------------------------------------------------------

    The parameters changed for each analysis can be found in Table 27, 
and the total aggregated lower and higher estimates can be found in 
Table 28. Based on the Department's sensitivity analyses, total 10-year 
costs discounted at 7 percent would likely be between $18.4 and $29.5 
billion.
    The Department's sensitivity analysis parameters are presented in 
Table 27, and the Department's sensitivity analyses of total costs are 
presented in Table 28.

                Table 27--Sensitivity Analysis Parameters
------------------------------------------------------------------------
             Cost                     Bound              Variations
------------------------------------------------------------------------
Higher education course         Lower estimate...  Increased remediation
 remediation.                                       timeline.
Higher education course         Higher estimate..  Higher course cost.
 remediation.
Website costs.................  Lower estimate...  Increased rate of PDF
                                                    archival.
Website costs.................  Higher estimate..  Lower effectiveness
                                                    of automated
                                                    accessibility
                                                    checkers.
Mobile app costs..............  Lower estimate...  Assume government
                                                    apps are ``simple.''
Mobile app costs..............  Higher estimate..  Assume government
                                                    apps are
                                                    ``complex.''
Elementary and secondary class  Lower estimate...  Assume fewer LMS
 or course remediation costs.                       classes or courses,
                                                    lower class or
                                                    course cost.
Elementary and secondary class  Higher estimate..  Assume more LMS
 or course remediation costs.                       classes or courses,
                                                    higher class or
                                                    course cost.
------------------------------------------------------------------------


                                  Table 28--Sensitivity Analyses of Total Costs
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                           Time period                                Primary      High estimate   Low estimate
----------------------------------------------------------------------------------------------------------------
Year 1..........................................................          $3,361          $5,462          $3,145
Year 2..........................................................           3,646           5,935           3,422
Year 3..........................................................           6,402           8,986           4,030
Year 4..........................................................           3,270           3,756           2,716
Year 5..........................................................           1,836           2,485           2,835
Year 6..........................................................           1,836           2,485           1,743
Year 7..........................................................           1,836           2,485           1,743
Year 8..........................................................           1,836           2,485           1,743
Year 9..........................................................           1,836           2,485           1,743
Year 10.........................................................           1,836           2,485           1,743
PV of 10-year costs, 3% discount rate...........................          24,302          34,420          21,712
Average annualized costs, 3% discount rate......................           2,849           4,035           2,545
PV of 10-year costs, 7% discount rate...........................          20,724          29,527          18,407
Average annualized costs, 7% discount rate......................           2,951           4,204           2,621
----------------------------------------------------------------------------------------------------------------

h. Cost to Revenue Comparison
    To consider the relative magnitude of the estimated costs of this 
proposed regulation, the Department compares the costs to revenues for 
State and local government entities. Because the costs for each 
government entity type are estimated to be well below 1 percent of 
revenues, the Department does not believe the rule will be unduly 
burdensome or costly for public entities.\243\ Costs for each type and 
size of government entity are estimated to be well below this 1 percent 
threshold.
---------------------------------------------------------------------------

    \243\ As noted above and as a point of reference, the United 
States Small Business Administration advises agencies that a 
potential indicator that the impact of a proposed regulation may be 
``significant'' is whether the costs exceed 1 percent of the gross 
revenues of the entities in a particular sector, although the 
threshold may vary based on the particular types of entities at 
issue. The Department estimates that the costs of this rulemaking 
for each government entity type are far less than 1 percent of 
revenues. See Small Bus. Admin., A Guide for Government Agencies: 
How to Comply with the Regulatory Flexibility Act 19 (Aug. 2017), 
https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH].
---------------------------------------------------------------------------

    The Department estimated the proportion of total local government 
revenue in each local government entity type and size using the 2012 
U.S. Census Bureau's database on individual local government 
finances.\244\ To evaluate which government entities continue to be 
small, the Department applied the U.S. Census's Bureau's population 
growth rates by State to the population numbers in the individual local 
government finances data to estimate 2020 population levels.\245\
---------------------------------------------------------------------------

    \244\ U.S. Census Bureau, Historical Data (Oct. 2021), https://www.census.gov/programs-surveys/cog/data/historical-data.html 
[https://perma.cc/UW25-6JPZ]. The Department was unable to find more 
recent data with this level of detail.
    \245\ U.S. Census Bureau, Historical Population Change Data 
(1910-2020) (Apr. 26, 2021), https://www.census.gov/data/tables/time-series/dec/popchange-data-text.html [https://perma.cc/RYQ3-VX9Q]. Population numbers in the 2012 data are from different years, 
so the Department applied a growth rate based on the specified date 
for each entity.
---------------------------------------------------------------------------

    To calculate population estimates for independent school districts, 
the Department used a methodology that is inconsistent with the 
population provisions in the proposed rule's regulatory text because 
the local government finances data only include enrollment numbers, not 
population

[[Page 52004]]

numbers. Detailed information on this methodology can be found in the 
full PRIA.
    The Department applied these proportions of governments in each 
entity type to the total local government revenue estimate from the 
U.S. Census Bureau's State and Local Government Finances by Level of 
Government and by State: 2020, updated to 2021 dollars.\246\ Table 29 
contains the average annualized cost using a 3 percent and 7 percent 
discount rate,\247\ 2020 annual revenue estimates, and the cost-to-
revenue ratios for each entity type and size. The costs are less than 1 
percent of revenues in every entity type and size combination, so the 
Department believes that the costs of this proposed regulation would 
not be overly burdensome for the regulated entities.
---------------------------------------------------------------------------

    \246\ U.S. Census Bureau, 2020 State & Local Government Finance 
Historical Datasets and Tables (Sept. 20, 2022), https://www.census.gov/data/datasets/2020/econ/local/public-use-datasets.html [https://perma.cc/QJM3-N7SG].
    \247\ The estimated costs for dependent community colleges are 
not included in this table because the Department is unable to 
determine how to distribute these entities' costs across the other 
types of State and local entities. Additionally, it is unclear if 
all public college and university revenue (e.g., tuition and fees) 
are included in the revenue recorded for the State or local entities 
on which the school is dependent. Finally, the low cost-to-revenue 
ratio for the independent community colleges indicate that these 
would not increase the cost to revenue above 1 percent for any 
entity type and size.
---------------------------------------------------------------------------

    Costs for postsecondary institutions were analyzed separately from 
other government entities. For public universities, which tend to be 
State dependent, the Department has included costs with State 
governments to ensure the ratio of costs to revenues is not 
underestimated. For community college independent districts, the 
Department has revenue data.
---------------------------------------------------------------------------

    \248\ See Section 3.9, Cost to Revenue Comparison, in the 
accompanying PRIA.

                                             Table 29--Cost-to-Revenue Ratios by Entity Type and Size \248\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Average         Average
                                                                            annualized      annualized        Annual          Cost to         Cost to
         Type of government entity                      Size                   cost            cost           revenue       revenue  3%     revenue  7%
                                                                          (millions)  3%  (millions)  7%    (millions)     discount rate   discount rate
                                                                           discount rate   discount rate        [a]             (%)             (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
State.....................................  Small.......................             N/A             N/A             N/A             N/A             N/A
State.....................................  Large.......................            $867            $877      $2,846,972            0.03            0.03
County....................................  Small.......................              20              21          65,044            0.03            0.03
County....................................  Large.......................             126             135         448,212            0.03            0.03
Municipality..............................  Small.......................             342             362         184,539            0.19            0.20
Municipality..............................  Large.......................             100             108         524,589            0.02            0.02
Township..................................  Small.......................             244             257          55,819            0.46            0.48
Township..................................  Large.......................               8               9          12,649            0.07            0.07
Special district..........................  N/A.........................              73              77         278,465            0.03            0.03
School district [b].......................  Small.......................             366             384         330,746            0.12            0.12
School district [b].......................  Large.......................             208             218         311,614            0.07            0.07
Territory.................................  Small.......................               0               0           1,243            0.02            0.02
Territory.................................  Large.......................               1               1          38,871            0.00            0.00
Public university [c].....................  N/A.........................             N/A             N/A             N/A             N/A             N/A
Community college [d].....................  N/A.........................             163             166          38,445            0.44            0.45
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] U.S. Census Bureau, 2020 State & Local Government Finance Historical Datasets and Tables (Sept. 2022), https://www.census.gov/data/datasets/2020/econ/local/public-use-datasets.html [https://perma.cc/QJM3-N7SG]. Inflated to 2021 dollars using GDP deflator.
[b] Excludes colleges and universities.
[c] Almost all public universities are State-dependent; costs included in the State entity type.
[d] Census of Governments data include revenue numbers only for independent community colleges. The costs included correspond to the proportion of the
  total number of community colleges that are independent.

5. Benefits Analysis
a. Summary of Benefits for Persons With and Without Relevant 
Disabilities
    Websites and mobile apps are common resources to access government 
services, programs, and activities. For example, during a 90-day period 
in summer 2022, there were nearly 5 billion visits to Federal 
Government websites.\249\ Aggregate data are unavailable for State and 
local government entities' websites, but based on the analysis in 
Section 2 of the PRIA, the Department estimates there are roughly 
109,900 public entity websites, and based on the analysis in Section 
4.3.2 of the PRIA, the Department estimates these websites have 22.8 
billion annual visits. Unfortunately, services, programs, and 
activities that State and local government entities provide online are 
not always fully accessible to individuals with disabilities. 
Conformance with WCAG 2.1 Level AA would increase availability of these 
resources to individuals with disabilities that affect web and mobile 
app access (i.e., vision, hearing, cognitive, and manual dexterity 
disabilities). These individuals are referred to as ``individuals with 
relevant disabilities'' or ``individuals with certain types of 
disabilities.'' Conformance would also result in benefits to 
individuals without these disabilities because accessible websites 
incorporate features that benefit all users, including individuals with 
other types of disabilities and individuals who do not have 
disabilities.
---------------------------------------------------------------------------

    \249\ General Services Administration Digital Analytics Program, 
https://analytics.usa.gov/ [https://perma.cc/2YZP-KCMG] (data 
retrieved on Aug. 8, 2022). While this rule will not apply to the 
Federal Government, this statistic is provided for analogy to show 
the proliferation of government services offered online.
---------------------------------------------------------------------------

    This section summarizes the benefits of conformance with WCAG 2.1 
Level AA for both individuals with and without relevant disabilities. 
The Department calculated the primary types of disabilities impacted by 
WCAG 2.1 Level AA and prevalence rates for each disability type. The 
Department also considered how individuals without relevant 
disabilities may benefit. For purposes of this analysis, ``individuals 
without relevant disabilities'' are individuals who do not have vision, 
hearing, cognitive, or manual dexterity disabilities; these may be 
individuals with other disabilities or

[[Page 52005]]

individuals with no disability. The Department then monetized benefits 
where applicable. These monetized benefits are predominantly associated 
with time savings. The Department estimates that average annualized 
benefits will total $8.9 billion, using a 7 percent discount rate, and 
$9.3 billion using a 3 percent discount rate. Finally, the Department 
qualitatively described additional benefits that could not be 
quantified.
b. Types of Disabilities Affected by Accessibility Standards
    Accessibility standards can benefit individuals with a wide range 
of disabilities, including vision, hearing, cognitive, speech, and 
physical disabilities. The Department focused on those with vision, 
hearing, cognitive, and manual dexterity disabilities because WCAG 2.1 
Level AA success criteria more directly benefit people with these 
disability types.\250\ However, the Department emphasizes that benefits 
for other disability types are also important and that excluding those 
disabilities may underestimate benefits. Additionally, disability 
prevalence rates may underestimate the number of people with a 
disability due to underreporting. As part of its analysis, the 
Department estimated that 19.9 percent of adults have a relevant 
disability for purposes of this analysis. Table 30 presents prevalence 
rates for each of these four types of disability.
---------------------------------------------------------------------------

    \250\ See W3C[supreg], Introduction to Web Accessibility, 
https://www.w3.org/WAI/fundamentals/accessibility-intro/ (Mar. 31, 
2022) [https://perma.cc/79BA-HLZY].
---------------------------------------------------------------------------

    The number of individuals with disabilities impacted by this rule 
may be smaller or larger than the numbers shown here. According to the 
Pew Research Center, 27 percent of people have a disability, as 
compared to the 19.9 percent figure used in this analysis.\251\ 
Conversely, not all individuals with vision, hearing, cognitive, or 
manual dexterity disabilities may be impacted by the proposed 
rulemaking. For example, ``cognitive disabilities'' is a broad category 
and some people with cognitive disabilities may not experience the same 
benefits from web accessibility that others do.
---------------------------------------------------------------------------

    \251\ Susannah Fox & Jan Lauren Boyles, Disability in the 
Digital Age, Pew Research Center (Aug. 6, 2012), https://www.pewinternet.org/2012/08/06/disability-in-the-digital-age/ 
[https://perma.cc/9RBM-PD78].
---------------------------------------------------------------------------

    The Department recognizes that accessibility can also produce 
significant benefits for individuals without relevant disabilities. For 
instance, many individuals without physical disabilities enjoy the 
benefits of physical accessibility features currently required under 
the ADA. For example, curb ramps, other ramps, and doors with 
accessible features can be helpful when pushing strollers or dollies. 
In the web context, experts have recognized that accessible websites 
are generally better organized and easier to use even for persons 
without relevant disabilities.\252\ This can result in benefits to the 
general public. The population of persons without relevant disabilities 
is derived as the remainder of the population once individuals with the 
four disabilities discussed above are removed. The Department estimates 
that there are 202.3 million Americans without relevant disabilities.
---------------------------------------------------------------------------

    \252\ See W3C[supreg], The Business Case for Digital 
Accessibility (Nov. 9, 2018), https://www.w3.org/WAI/business-case/ 
[https://perma.cc/K5AF-UYWS].
---------------------------------------------------------------------------

    Companions \253\ may also benefit from this proposed rulemaking 
because they will not need to spend as much time assisting with 
activities that an individual with a disability can now perform on 
their own. Companions can then spend this time assisting with other 
tasks or engaging in other activities. Estimates on the number of 
companions vary based on definitions, but according to the AARP, there 
are 53 million ``unpaid caregivers'' in the United States.\254\ This 
number includes companions to those with disabilities other than 
disabilities applicable to web accessibility. There are also 4.7 
million direct care workers in the United States.\255\ Benefits to 
companions are not quantified, but they are discussed further in 
Section VI.A.5.d of this preamble.
---------------------------------------------------------------------------

    \253\ A companion may refer to a family member, friend, 
caregiver, or anyone else providing assistance.
    \254\ AARP National Alliance for Caregiving, Caregiving in the 
United States 2020, AARP (May 14, 2020), https://www.aarp.org/ppi/info-2020/caregiving-in-the-united-states.html [https://perma.cc/QBQ2-L94W]. The term ``unpaid caregiver'' as used in the AARP report 
is comparable to this analysis' use of the term companion to refer 
to family members, friends, caregivers, or anyone else providing 
assistance.
    \255\ PHI, Understanding the Direct Care Workforce, https://www.phinational.org/policy-research/key-facts-faq/ [https://perma.cc/9DNN-XL23].

                                Table 30--Disability Prevalence Counts, SIPP 2021
----------------------------------------------------------------------------------------------------------------
                                                                                    Cumulative      Cumulative
                 Disability type                    Prevalence        Number        prevalence      number [a]
                                                     rate (%)       (millions)     rate [a] (%)     (millions)
----------------------------------------------------------------------------------------------------------------
Vision..........................................             4.8            12.2             4.8            12.2
Hearing.........................................             7.5            19.0             6.1            15.3
Cognitive.......................................            10.1            25.5             6.7            16.9
Manual dexterity................................             5.7            14.3             2.3             5.7
None of the above...............................            80.1           202.3            80.1           202.3
----------------------------------------------------------------------------------------------------------------
See U.S. Census Bureau, Survey of Income and Program Participation--About this Survey (Aug. 2022), https://www.census.gov/programs-surveys/sipp/about.html [https://perma.cc/Z7UH-6MJ8]; see also Section 4.2, Types of
  Disabilities Affected by Accessibility Standards, in the accompanying PRIA for more details on the
  Department's findings.
[a] Individuals with multiple qualifying disabilities are counted within the first disability category listed
  (e.g., if someone has a cognitive and vision disability, they are included in the vision disability prevalence
  rate).

c. Monetized Benefits
    The Department monetized five benefits of accessible public entity 
websites and mobile apps (Figure 1). The Department's conclusions are 
described in this summary, and more detail about its methodology and 
assumptions are included in Section 4.3, Monetized Benefits, in the 
accompanying PRIA. The five monetized benefits and their estimated 
monetary value are:
     Time savings for current users of State and local 
government entities' websites ($4.2 billion per year),
     Time savings for those who switch modes of access (i.e., 
switch from other modes of accessing State and local government 
entities' services, programs,

[[Page 52006]]

and activities such as phone or mail to the public entities' website) 
or begin to participate (did not previously partake in the State and 
local government entities' services, programs, or activities) ($917.4 
million per year),
     Time savings for current mobile app users ($390.1 million 
per year),
     Time savings for students and their parents ($5.1 billion 
per year), and
     Earnings from additional educational attainment ($262.8 
million per year).\256\
---------------------------------------------------------------------------

    \256\ Even after the implementation period, the size of the 
annual benefit increases over time as more cohorts graduate with 
additional educational attainment. $262.8 million represents the 
annual benefit to one graduating class.
---------------------------------------------------------------------------

    All five types of benefits are applicable for those with a relevant 
disability. For individuals without a relevant disability, benefits are 
limited to time savings for current users of State and local government 
entities' websites, current users of mobile apps, and educational time 
savings. For State and local government entities, monetized benefits 
include time savings from reduced contacts (i.e., fewer interactions 
assisting people with disabilities). After calculating current benefit 
levels for each benefit type, the Department projected benefits over a 
10-year period and took into consideration the implementation period. 
The Department also conducted sensitivity analyses and calculated 
benefits for regulatory alternatives.
    In total, the Department estimated benefits of $8.9 billion per 
year on an average annualized basis, using a 7 percent discount rate. 
On a per capita basis, this equates to $35 per adult in the United 
States.\257\
[GRAPHIC] [TIFF OMITTED] TP04AU23.001

i. Projected 10-Year Benefits
    During the implementation period, benefits will be lower. The 
proposed rule allows either two or three years for implementation, 
depending on the public entity's population. With the exclusion of 
educational benefits (discussed below), the Department believes 
benefits will fully accrue beginning in Year 4 but that some benefits 
will exist during the three implementation years as websites and mobile 
apps become more accessible. The Department assumes that in Year 1 
benefits are 27 percent of the level of benefits once compliance is 
complete; in Year 2 benefits increase to 53 percent; and in Year 3 
benefits increase to 80 percent (Table 31).\258\
---------------------------------------------------------------------------

    \257\ The Census Bureau estimates 257.9 million adults in the 
United States in 2020. U.S. Census Bureau, National Demographic 
Analysis Tables: 2020 (Mar. 2022), https://www.census.gov/data/tables/2020/demo/popest/2020-demographic-analysis-tables.html 
[https://perma.cc/7WHV-7CPM].
    \258\ The Department assumed benefits accrue at a steady rate 
over the implementation period. For example, for large entities, 
benefits increase from 33 percent in Year 1, to 66 percent in Year 
2, and 100 percent in Year 3. For small entities, benefits increase 
from 25 percent in Year 1, to 50 percent in Year 2, to 75 percent in 
Year 3, and 100 percent in Year 4. The benefits will be 100 percent 
accrued in Year 3 for large entities and Year 4 for small entities 
because at the beginning of those years, the implementation period 
will be over. These accrual rates are weighted by the number of 
government websites for small versus large governments. Eighty 
percent of websites are for small entities, despite websites being 
less common among small entities, because the number of small 
governments is much larger than the number of large governments.
---------------------------------------------------------------------------

    For course remediation time savings, the Department assumed no 
benefits would accrue until the implementation period is complete 
because courses will not be remediated until remediation is 
requested,\259\ and it is unknown in advance which courses will need to 
be remediated. Therefore, in Year 3, once small entities are affected, 
63 percent of potential benefits for postsecondary students will accrue 
and 53 percent of potential benefits for elementary and secondary 
students will accrue. In Year 4, full benefits are reached.\260\
---------------------------------------------------------------------------

    \259\ There are circumstances where courses must be remediated 
in the absence of a request, such as where an institution should 
know about the need for accessible materials. This is described in 
detail in the corresponding section of the preamble.
    \260\ The Department does not know which institutions are 
associated with small or large governments. Therefore, the 
Department assumed that four-year institutions are large entities 
and community colleges are small entities. For elementary and 
secondary schools, the Department used the share of students in 
independent school districts who are in small versus large 
districts.

---------------------------------------------------------------------------

[[Page 52007]]

    For educational attainment, benefits do not accrue until after the 
additional education is obtained. For simplicity, benefits are assumed 
to begin in Year 5, after two years of implementation followed by two 
years of additional educational attainment. The amount of time needed 
to obtain additional education varies based on the degree, but the 
Department believes two years is an appropriate average. For example, 
to move from a high school degree to some college or an associate's 
degree would take approximately two years. Similarly, to move from some 
college or an associate's degree to a bachelor's degree would also take 
approximately two years. The Department only incorporated two years of 
implementation because most public colleges are under the purview of 
large governments with a two-year implementation period. Average 
annualized educational attainment benefits only include additional 
earnings over this 10-year period, not over the course of a lifetime.

                                                                                  Table 31--Timing of Benefits
                                                                                           [Millions]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                          Elementary/     Elementary/                                Education
                                         Total benefit   Non-education   Non-education     Postsec.        Postsec.        secondary       secondary     Educational attainment     attainment
                 Year                      (million)     accrual rate      benefits      accrual rate    benefits \a\    accrual rate    benefits \a\            accrual             benefits
                                                              (%)         (millions)          (%)          (million)          (%)          (million)                                 (million)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1................................          $1,619              27          $1,619               0              $0              0%              $0  0%......................            $0.0
Year 2................................           3,239              53           3,239               0               0               0               0  0%......................             0.0
Year 3................................           7,756              80           4,858              63           1,447              53           1,452  0%......................             0.0
Year 4................................          11,125             100           6,068             100           2,303             100           2,754  0%......................             0.0
Year 5................................          11,387             100           6,068             100           2,303             100           2,754  1 cohort................             263
Year 6................................          11,650             100           6,068             100           2,303             100           2,754  2 cohorts...............             526
Year 7................................          11,913             100           6,068             100           2,303             100           2,754  3 cohorts...............             788
Year 8................................          12,176             100           6,068             100           2,303             100           2,754  4 cohorts...............           1,051
Year 9................................          12,439             100           6,068             100           2,303             100           2,754  5 cohorts...............           1,314
Year 10...............................          12,702             100           6,068             100           2,303             100           2,754  6 cohorts...............           1,577
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Benefits may begin accruing during the implementation period, but for simplicity, the Department excluded benefits here for these years. The Department only incorporated two years of
  implementation because most public colleges are under the purview of large governments with a two-year implementation period.

ii. Sensitivity Analysis of Benefits
    The benefits calculations incorporate some assumptions and sources 
of uncertainty. Therefore, the Department has conducted sensitivity 
analyses on select assumptions to demonstrate the degree of uncertainty 
in the estimates. Other assumptions not altered here also involve a 
degree of uncertainty and so these low and high estimates should not be 
considered absolute bounds.
    Average annualized benefits using a 7 percent discount rate are 
estimated to be $8.9 billion under the primary conditions. Using the 
low estimate assumptions, they are $6.4 billion and under the high 
estimate assumptions they are $14.7 billion (Table 32). The variations 
used for each benefit type are shown in Table 33.

                           Table 32--Average Annualized Benefits Sensitivity Analysis
                                                 [Millions] \a\
----------------------------------------------------------------------------------------------------------------
                           Beneficiary                             Low estimate       Primary      High estimate
----------------------------------------------------------------------------------------------------------------
Time savings--current users.....................................        $2,688.7        $3,416.1         7,284.1
Time savings--new users.........................................           170.3           753.5         1,177.3
Time savings--governments.......................................            83.6           493.3           578.1
Time savings--mobile apps.......................................           252.1           320.4           683.1
Time savings--education.........................................         3,043.7         3,504.4         3,803.5
Educational attainment..........................................           141.2           449.5         1,167.5
                                                                 -----------------------------------------------
    Total.......................................................         6,379.7         8,937.2        14,693.6
----------------------------------------------------------------------------------------------------------------
\a\ 10-Year average annualized benefits, 7 percent discount rate.


 Table 33--Assumptions and Data Sources Varied for Sensitivity Analysis
------------------------------------------------------------------------
          Beneficiary             Estimate type          Variations
------------------------------------------------------------------------
Time savings--current users...  Low..............  ACS data for
                                                    prevalence rates,
                                                    instead of SIPP.
Time savings--current users...  High.............  Same time reduction
                                                    (24%) for all
                                                    disabilities.
Time savings--current users...  High.............  Exclude ``n/a'' from
                                                    SEMRUSH output.
Time savings--new users.......  Low..............  ACS data for
                                                    prevalence rates,
                                                    instead of SIPP.
Time savings--new users.......  Low..............  Usage gap only closes
                                                    by 75%.
Time savings--new users.......  Low..............  Lower transaction
                                                    time (19 minutes
                                                    instead of 25).
Time savings--new users.......  Low..............  Fewer transactions (6
                                                    instead of 8).
Time savings--new users.......  High.............  Higher transaction
                                                    time (31 minutes
                                                    instead of 25).
Time savings--new users.......  High.............  More transactions (10
                                                    instead of 8).
Time savings--governments.....  Low..............  ACS data for
                                                    prevalence rates,
                                                    instead of SIPP.
Time savings--governments.....  Low..............  Usage gap only closes
                                                    by 75%.
Time savings--governments.....  Low..............  Lower transaction
                                                    time (7.5 minutes
                                                    instead of 10).
Time savings--governments.....  Low..............  Fewer transactions
                                                    (7.5 instead of 6).
Time savings--governments.....  High.............  Higher transaction
                                                    time (12.5 minutes
                                                    instead of 10).
Time savings--governments.....  High.............  More transactions
                                                    (4.5 instead of 6).
Time savings--mobile apps.....  Low..............  ACS data for
                                                    prevalence rates,
                                                    instead of SIPP.

[[Page 52008]]

 
Time savings--mobile apps.....  High.............  Same time reduction
                                                    (24%) for all
                                                    disabilities.
Time savings--mobile apps.....  High.............  Exclude ``n/a'' from
                                                    SEMRUSH output.
Time savings--education.......  Low..............  ACS data for
                                                    prevalence rates,
                                                    instead of SIPP.
Time savings--education.......  High.............  Same time reduction
                                                    (24%) for all
                                                    disabilities.
Educational attainment........  Low..............  ACS data for
                                                    prevalence rates,
                                                    instead of SIPP.
Educational attainment........  Low..............  Smaller share of
                                                    achievement gap
                                                    closed.
Educational attainment........  High.............  Benefits begin in
                                                    Year 3, instead of
                                                    Year 5.
Educational attainment........  High.............  Larger share of
                                                    achievement gap
                                                    closed.
------------------------------------------------------------------------

    For current website users, the Department altered three 
assumptions--one for the low estimate and two for the high estimate. 
First, disability prevalence rates are much lower using ACS data than 
SIPP data. As explained in Section 2.2 of the accompanying PRIA, the 
Department believes the SIPP estimates are more appropriate, but ACS 
numbers are used here for sensitivity. Using ACS data reduces the 
average annual benefits from $3.4 to $2.7 billion. For the high 
estimate, rather than assuming the time reduction for individuals with 
hearing, cognitive, or manual dexterity is equivalent to individuals 
without a hearing disability, the Department assumes the reduction is 
equivalent to individuals with vision disabilities. The Department also 
excluded websites for which SEMRUSH, an online marketing and research 
tool,\261\ did not provide data, rather than assuming values of zero. 
These two variations increase benefits from $3.4 billion to $7.3 
billion.
---------------------------------------------------------------------------

    \261\ For information on this application, see https://www.semrush.com/features/ [https://perma.cc/ZZY5-U42Z].
---------------------------------------------------------------------------

    For new website users and cost savings to governments, the 
Department altered four assumptions. First, once again, ACS prevalence 
rates were used in lieu of SIPP estimates. Second, rather than assuming 
website usage becomes equivalent for individuals with and without 
relevant disabilities, the Department assumed this gap only closes by 
75 percent. Third, the average time spent per transaction was reduced 
or increased by 25 percent for the low estimate and high estimate, 
respectively. Fourth, the average number of transactions per year was 
reduced or increased by 25 percent for the low estimate and high 
estimate, respectively. Incorporating these alternative assumptions 
reduces the benefits for new users to $170.3 million when the 
transactions are reduced or increases the benefits to $1.2 billion when 
the transactions are increased, from $753.5 million. For cost savings 
to governments, benefits decrease to $83.6 million when transactions 
are reduced or increase to $578.1 million when the transactions are 
increased, from $493.3 million.
    For mobile app users, the Department altered three assumptions. 
These are the same assumptions that were discussed above for current 
website users (ACS prevalence data, time reduction for individuals with 
other disabilities, and exclusion of websites not analyzed by SEMRUSH). 
After making these calculations, benefits either decrease to $252.1 
million or increase to $683.1 million from $320.4 million.
    For time savings for students and parents, the Department altered 
two assumptions. The low estimate uses ACS data for prevalence rates 
instead of SIPP. The high estimate uses a 24 percent time savings for 
those with hearing, cognitive, and manual dexterity disabilities 
instead of 21 percent. After making these calculations, benefits 
decrease to $3.0 billion or increase to $3.8 billion from $3.5 billion.
    For benefits of additional educational attainment, the Department 
altered three assumptions. First, ACS prevalence rates were used 
instead of SIPP. Second, benefits begin to accrue in Year 3 rather than 
Year 5. Third, the Department changed the share of the educational 
achievement gap that would be closed from 10 percent to 5 and 15 
percent. After making these calculations, benefits decrease to $141.2 
million or increase to $1.2 billion from $449.5 million.
d. Unquantified Benefits
    This rulemaking is being promulgated under the ADA--a Federal civil 
rights law. Congress stated that a purpose of the ADA is ``to provide a 
clear and comprehensive national mandate for the elimination of 
discrimination against individuals with disabilities.'' \262\ This 
proposed rule is intended to further the ADA's broad purpose by helping 
to eliminate discrimination against people with disabilities in public 
entities' web content and mobile apps that are made available to the 
public or are used to offer their services, programs, and activities. 
Access to such services, programs, and activities is critical to 
furthering the Nation's goal, as articulated in the ADA, to ensure 
``equality of opportunity, full participation, independent living, and 
economic self-sufficiency'' for people with disabilities.\263\ This 
access is also critical to promoting the exercise of fundamental 
constitutional rights, such as the rights to freedom of speech, 
assembly, association, petitioning, and due process of law. This 
proposed rule, therefore, implicates benefits like dignity, 
independence, and advancement of civil and constitutional rights for 
people with disabilities. Such benefits can be difficult or impossible 
to quantify yet provide tremendous benefit to society. The January 20, 
2021, Presidential Memorandum titled ``Modernizing Regulatory Review'' 
\264\ states that the regulatory review process should fully account 
for regulatory benefits that are difficult or impossible to quantify. 
Many of the benefits in this proposed rule are exactly the type of 
benefits contemplated by the Presidential Memorandum.
---------------------------------------------------------------------------

    \262\ 42 U.S.C. 12101(b)(1).
    \263\ Id. 12101(a)(7).
    \264\ 86 FR 7223 (Jan. 20, 2021).
---------------------------------------------------------------------------

    These benefits are central to this proposed rule's potential impact 
as they include concepts inherent to any civil rights law--like 
equality--that will be felt throughout society and personally by 
individuals with disabilities. Consider, for example, how even a 
routine example of access to a web-based form could impact a person 
with a disability. When the online form is accessible, the person with 
a disability can complete the form (1) at any time they please, even 
after normal business hours; (2) on their own; (3) without needing to 
share potentially private information with someone else; and 4) 
quickly, because they would not need to coordinate a time to complete 
the form with a companion. Importantly, this is the experience people 
without relevant disabilities have when accessing online government 
services. This proposed rule is intended to ensure that people with

[[Page 52009]]

disabilities have the same opportunity to participate in and receive 
the benefits of the services, programs, or activities that State and 
local government entities make available to members of the public 
online.
    There are many benefits of this proposed rule--like equality and 
dignity--that have not been monetized in the PRIA due to limited data 
availability and inherent difficulty to quantify. Those benefits are 
discussed here qualitatively. The Department requests comments and data 
that could assist in quantifying these important benefits so that the 
Department can also represent them in a way consistent with this 
proposed rule's costs. The Department recognizes the significant 
benefits of this rule and the impact the rule will have on the everyday 
lives of people with disabilities. Thus, the Department seeks the 
public's assistance in better quantifying the benefits that are 
discussed qualitatively in this section.
    This section's description of the proposed rule's unquantified 
benefits first discusses benefits to individuals, followed by benefits 
to State and local government entities.
     Benefits to individuals include, among others:
    [cir] Increased independence, flexibility, and dignity;
    [cir] Increased privacy;
    [cir] Reduced frustration;
    [cir] Decreased assistance by companions;
    [cir] Increased program participation; and
    [cir] Increased civic engagement and inclusion.
     Benefits to governments include, among others:
    [cir] Increased certainty about the applicable technical standard; 
and
    [cir] Potential reduction in litigation.
i. Increased Independence, Flexibility, and Dignity
    Among the most impactful benefits of this rulemaking are greater 
independence, flexibility, and dignity for people with disabilities. 
These unquantified benefits will extend beyond just people with 
disabilities--many other individuals will benefit from more accessible 
websites, as described in the PRIA. These benefits are also among the 
most difficult to quantify, given that they will be felt uniquely by 
each person and are often experienced in many intangible aspects of a 
person's life. Because of this, the Department was unable to quantify 
the monetary benefits of increased independence, flexibility, and 
dignity that will result from this rulemaking. These unquantified 
benefits are thus briefly described here. This inability to quantify 
these benefits does not suggest that the Department considers them any 
less important.
    Accessible public entity websites and mobile apps will enable more 
people with disabilities to independently access State or local 
government entities' services, programs, and activities. People with 
disabilities will be able to directly access websites providing 
essential governmental information and services, without needing to 
rely on a companion to obtain information and interact with websites 
and mobile apps. For example, people with disabilities will be able to 
independently submit forms and complete transactions, request critical 
public services, communicate more easily with their local public 
officials, and apply for governmental benefits. The ability to do each 
of these tasks independently, without paying an assistant or asking for 
a companion's assistance, creates a substantial benefit. Additionally, 
online processing with status updates, automated notifications, and 
automated reminders generates time savings and convenience that those 
with disabilities will be better able to access when they can 
independently enroll in government services through websites as a 
result of this rule. People with disabilities will thus be able to 
exercise more independence and control over their interactions with 
State or local government entities, which are unquantified benefits 
that will accrue from this rulemaking.
    Further, this rulemaking will provide increased flexibility for 
people with disabilities. This is another benefit that is difficult to 
quantify, so the Department describes it here. Because of this 
rulemaking, people with disabilities will be better able to access 
State or local government entities' services, programs, or activities 
on their own time and at their convenience, without needing to wait for 
assistance from a companion or a State or local government entity's 
employee. The ability to conduct certain transactions on a public 
entity's website, such as paying a utility bill, renewing a business 
license, or requesting a special trash pickup, gives individuals the 
ability to conduct these transactions at a time most convenient to 
them. This greater flexibility should lead to overall improved use of a 
person's time, as measured by their preferences (thereby enhancing what 
economists refer to as utility). This greater flexibility could also 
result in cost savings to individuals with disabilities who might have 
previously paid an assistant or sought the help of a companion to 
conduct these transactions. Additionally, when websites are 
inaccessible, people with disabilities might have to make separate 
arrangements to conduct a transaction by taking time off work or 
arranging transportation. Because of greater website accessibility, 
people with disabilities can schedule these transactions or search for 
information at a time and place most convenient for them, which results 
in increased benefits.
    Finally, individuals with disabilities will benefit from the 
dignity that is associated with greater independence and flexibility. 
This is another benefit that is difficult to quantify, so the 
Department has included it as an unquantified benefit that will result 
from this rulemaking. When individuals with relevant disabilities do 
not need to rely on others to conduct transactions and access services, 
programs, and activities, they are able to act with the independence 
and flexibility that individuals without relevant disabilities enjoy, 
which results in greater feelings of dignity. The knowledge that 
websites and mobile apps are designed to be inclusive of individuals 
with disabilities can give people with disabilities a greater sense of 
dignity rooted in the knowledge that their lives are valued and 
respected, and that they too are entitled to receive the benefits of 
State or local government entities' services, programs, and activities, 
without needing to rely on others. The Department was unable to 
quantify the monetary value of this benefit, but the Department expects 
individuals with disabilities to benefit from greater dignity as a 
result of this rulemaking. This benefit is also associated with a 
greater sense of confidence, self-worth, empowerment, and fairness, 
which are also benefits that will accrue as a result of this 
rulemaking.
ii. Increased Privacy
    Accessible websites and mobile apps allow individuals with 
disabilities to conduct activities independently, without unnecessarily 
disclosing potentially private information such as banking details, 
Social Security numbers, and health information to other people. This 
is because when individuals with disabilities are able to use an 
accessible website or mobile app, they can rely on security features to 
convey information online, rather than potentially sharing information 
with others, such as companions or public entities' employees. Without 
accessible websites, people with certain types of disabilities may need 
to share this sensitive information with others

[[Page 52010]]

unnecessarily, which could result in identity theft or misuse of their 
personal information. Additionally, privacy protects individual 
autonomy and has inherent value. Even the prospect of identity theft 
may result in people with disabilities sharing less information or 
needing to take additional measures to protect themselves from having 
their information stolen. Because of this, there is a benefit that is 
difficult to quantify in people with disabilities being able to safely 
and privately conduct important transactions on the web, such as for 
taxes, healthcare, and benefits applications. The increased privacy and 
assurances that information will be kept safe online will benefit 
people with relevant disabilities, though the Department was unable to 
quantitatively calculate this benefit.
    Further, another privacy benefit of this rulemaking is that people 
with relevant disabilities will have greater access to community 
resources that require sharing and receiving private information. 
Sometimes sensitive information may need to be discussed, such as 
information about physical health, mental health, sexual history, 
substance use, domestic violence, or sexual assault. When websites are 
more accessible, people with disabilities will be able to share this 
information using things like online forms and messaging systems, which 
reduces the likelihood that an individual with a disability will need 
to disclose this personal information unnecessarily to a companion or 
on the phone in the presence of others. Additionally, if people with 
relevant disabilities can access websites independently, they may be 
able to seek out community resources without needing to involve a 
companion or a State or local government entity's employee 
unnecessarily, which enhances the ability of people with these 
disabilities to privately locate information. For example, if a person 
with a disability is seeking to privately locate resources offered by a 
public entity that would enable them to leave an abusive relationship 
safely, accessible websites will allow them to search for information 
with greater privacy than seeking out resources in person, on the 
phone, or by mail, which they may not be able to do without seeking 
assistance from, or risking being detected by, their abuser. These 
benefits were not calculated quantitatively due to the difficulty of 
placing a value on added privacy, but the Department anticipates people 
with disabilities would nonetheless greatly benefit from the privacy 
implications of this rule.
iii. Reduced Frustration
    Potentially in addition to the significant unquantified benefits 
discussed above, another impactful benefit of this rulemaking that may 
be difficult to quantify is reduced frustration for people with 
disabilities. Inaccessible websites and mobile apps create significant 
frustration for individuals with certain types of disabilities who are 
unable to access information or complete certain tasks. In addition to 
the inconvenience of not being able to complete a task, this 
frustration can lead to a lower-quality user experience. For example, 
Pascual et al. (2014) assessed the moods of sighted, low vision, and 
blind users while using accessible and inaccessible websites and found 
greater satisfaction with accessible websites.\265\ This frustration 
appears to be particularly common for individuals with disabilities. 
Lazar et al. (2007) documented the frustrations users who are blind 
experience when using screen readers, finding, for example, that on 
average users reported losing 30.4 percent of time due to inaccessible 
content.\266\ Furthermore, some people with vision disabilities may be 
unable to complete a required task altogether. For example, if an 
individual with low vision is filling out an online form but the color 
contrast between the foreground and background on the ``submit'' button 
is not sufficient, or if an individual who is blind is filling out a 
form that is not coded so that it can be used with a screen reader, 
they may be unable to submit their completed form. The inability to 
complete a task independently or without any barriers can be extremely 
frustrating and significantly reduce the overall quality of the user 
experience. The frustration that individuals with disabilities 
experience while accessing services, programs, and activities that 
public entities offer on their websites and mobile apps would be 
significantly reduced if the content was made accessible.
---------------------------------------------------------------------------

    \265\ Afra Pascual et al., Impact of Accessibility Barriers on 
the Mood of Blind, Low-Vision and Sighted Users, 27 Procedia Comput. 
Sci. 431, 440 (2014), https://repositori.udl.cat/bitstream/handle/10459.1/47973/020714.pdf?sequence=1 [https://perma.cc/4P62-B42X].
    \266\ Jonathan Lazar et al., What Frustrates Screen Reader Users 
on the Web: A Study of 100 Blind Users, 22(3) Int'l J. of Human-
Comput. Interaction 247-269 (2007), https://web.archive.org/web/
20100612034800id_/http://triton.towson.edu/~jlazar/
IJHCI_blind_user_frustration.pdf [https://perma.cc/29PN-45GR].
---------------------------------------------------------------------------

    It is difficult to quantify this reduction in frustration in 
monetary costs, but it may already partially be captured in the 
quantitative estimates framed above as time savings. The Department 
believes the ability to complete tasks and engage with the services, 
programs, and activities offered by public entities on websites and 
mobile apps can make a significant improvement in the quality of the 
lives of people with relevant disabilities by reducing the frustration 
they experience.
iv. Decreased Assistance by Companions
    In addition to the significant benefits discussed above, when 
individuals with disabilities are able to access websites and mobile 
apps independently instead of relying on a companion for assistance, 
both individuals with disabilities and their companions will benefit in 
other ways that are difficult to quantify.
    If people with disabilities previously relied on supports such as 
family members or friends to perform these tasks, the quality of these 
relationships may be improved. If a person with a disability no longer 
needs to request assistance, they can spend that time together with 
their loved ones socializing or doing activities that they prefer, 
instead of more mundane tasks like filling out tax forms. People with 
relevant disabilities will have an increased opportunity to relate to 
their companions as equals, rather than needing to assume a dependent 
role in their relationships when they need help from others to complete 
tasks online. Requests for assistance, and the manner in which those 
requests are fulfilled by others, can sometimes cause stress or 
friction in interpersonal relationships; when individuals can complete 
tasks independently, those strains on relationships may be reduced.
    If people with relevant disabilities previously paid companions to 
assist them with online tasks, they will be able to save or spend this 
money as they choose. They will also be able to save the time and 
effort associated with finding paid companions who are willing and able 
to assist with intermittent, often low-paid work.
    If State agencies were providing a personal care assistant or home 
health aide to assist an individual with a disability, it is possible 
that some of that companion's time could be reallocated to assist a 
different person with a disability, because the same amount of 
assistance would not be needed to complete tasks online. This could 
reduce government spending for home- and community-based services. It 
may also increase the number of direct care workers who are available 
to assist people with disabilities.

[[Page 52011]]

    Companions will also benefit when they do not need to provide 
assistance. Family members or friends will be able to do other things 
with the time that they would have spent helping someone with a 
disability. These may be activities that they enjoy more, that earn 
income, or that benefit society in other ways. Paid companions will be 
able to spend their time on other tasks such as assisting with bathing, 
toileting, or eating. All of these benefits are difficult to 
quantitatively calculate, but they are nonetheless benefits that would 
accrue from the rule.
v. Increased Program Participation
    Section 4.3 of the PRIA indirectly quantified the benefits of 
increased access to services, programs, and activities by calculating 
the benefit from people changing how they access those services to 
using websites and mobile apps, which the Department referred to as 
switching modes. However, the Department believes that there are 
unquantified benefits associated with increased program participation 
that are difficult to quantify, which are described briefly here.
    Inaccessible websites may prevent persons with relevant 
disabilities from accessing information or using State or local 
government services, programs, and activities that others without 
relevant disabilities have access to online. While people with 
disabilities may nonetheless access government services, programs, and 
activities despite barriers due to inaccessible websites, there will be 
other times when people with disabilities are too discouraged by these 
barriers and thus do not participate in services, programs, and 
activities. This rulemaking will reduce those barriers to access, which 
will result in fewer individuals with disabilities being deterred from 
participating in State or local government services, programs, or 
activities. Further, there may be some State or local government 
services, programs, or activities that individuals with disabilities 
would simply not have been aware of due to an inaccessible website, 
that they may now choose to participate in once they have access to the 
website or mobile app providing those services. This could result in a 
benefit of increased program participation, which will allow people 
with relevant disabilities to take advantage of services, programs, or 
activities that could improve their lives. The Department believes 
there is great intangible benefit to people with disabilities being 
able to connect to services, which will result in greater feelings of 
engagement and belonging in the community. There will also be a 
tangible benefit to increased program participation that will likely 
reduce inequality. For example, increased program participation could 
result in increased benefit payouts, sidewalk repairs, and trash 
pickups for people with disabilities, which would reduce inequality 
between people with disabilities and people without relevant 
disabilities.
vi. Increased Civic Engagement and Inclusion
    Increased program participation in many civic activities will 
result in an unquantified benefit of greater community involvement, 
which will allow people with relevant disabilities to advocate for 
themselves and others and participate more actively in the direction of 
their communities. For example, if more people with disabilities can 
independently access information about proposed legislative and policy 
changes and contact local civic leadership about their views, they 
might be more likely to become actively involved in civic activities 
within their communities. Further, they may be able to access 
information to inform their democratic participation, such as by 
locating election resources and procedures for accessible voting. By 
facilitating this kind of civic engagement, this rule will promote the 
exercise of fundamental constitutional rights, such as the rights to 
freedom of speech, assembly, association, and petitioning. Aside from 
these benefits, governments also provide opportunities for social 
engagement, recreation, and entertainment, which will further enable 
people with relevant disabilities to feel more engaged and connected 
with their communities. This engagement is a benefit both to people 
with these disabilities and to people without relevant disabilities who 
will be able to connect with others in their community more easily. All 
of these benefits are difficult to quantify monetarily, but the 
Department nonetheless believes they will result in significant 
benefits for people with disabilities and for American communities.
vii. Increased Certainty About What Constitutes an Accessible Website 
Under the ADA and Potential Reduction in Litigation
    Although the ADA applies to the services, programs, and activities 
that State and local government entities offer via the web, the ADA's 
implementing regulations currently do not include specific technical 
standards. The Department has consistently heard from public entities 
that they desire guidance on how to specifically comply with the ADA in 
this context. Adopting WCAG 2.1 Level AA as the technical standard for 
web and mobile app accessibility will reduce confusion and uncertainty 
by providing clear rules to public entities regarding how to make the 
services, programs, and activities they offer to the public via their 
websites and mobile apps accessible. Although the resulting increased 
certainty from adopting a technical standard is difficult to quantify, 
the Department believes it is an important benefit that will make 
public entities more confident in understanding and complying with 
their ADA obligations.
    Further, increased certainty regarding how to make websites and 
mobile apps accessible may reduce litigation costs for public entities. 
Similar to how specific standards in the physical environment enable 
businesses to identify and resolve accessibility issues, the adoption 
of WCAG 2.1 Level AA as a technical standard will enable public 
entities to determine if their websites or mobile apps are out of 
compliance with the ADA and resolve any instances of noncompliance, 
resulting in greater accessibility without litigation. The Department 
recognizes that more specific technical standards could lead to an 
increase in litigation as there will be a clearer way to demonstrate 
that public entities are not in compliance. However, the ability to 
more easily determine noncompliance will allow the public entity to 
proactively resolve any compliance issues. Thus, although it is 
difficult to know the exact impact that a clear technical standard will 
have on total litigation costs, the Department believes that the 
potential for reduced litigation costs is a significant benefit for 
public entities that should be accounted for in this analysis.
6. Costs and Benefits of Regulatory Alternatives
    The Department estimated costs and benefits for several possible 
alternatives to the proposed rule. These alternatives are described in 
Table 34, and a full explanation of the Department's methodology can be 
found in Section 5, Regulatory Alternatives, of the accompanying PRIA.

[[Page 52012]]



           Table 34--Regulatory Alternatives Considered \267\
------------------------------------------------------------------------
            Stringency                           Alternative
------------------------------------------------------------------------
Less stringent....................  3 years for implementation for large
                                     entities; 4 years for
                                     implementation for small entities.
Less stringent....................  Conformance with WCAG 2.1 Level A
                                     required.
Less stringent....................  Conformance with WCAG 2.0 Level AA
                                     required.
Rule as Proposed..................  Conformance with WCAG 2.1 Level AA
                                     required.
More stringent....................  1 year for implementation for all
                                     entities.
More stringent....................  1 year for implementation for large
                                     entities; 3 years for
                                     implementation for small entities.
More stringent....................  Conformance with WCAG 2.1 Level AAA
                                     required.
------------------------------------------------------------------------

a. Costs of Regulatory Alternatives
    To estimate the impact to website, mobile app, and course 
remediation costs of lengthening the required implementation timeline, 
the Department adjusted its assumptions about the pace at which 
entities would incur initial testing and remediation costs. In this 
analysis, the Department projected 10-year costs assuming large 
entities would incur 33 percent of their initial costs in each of the 
first three years and small entities would incur 25 percent of their 
initial costs in each of the first four years after the promulgation of 
the rule.
---------------------------------------------------------------------------

    \267\ See Section 5, Regulatory Alternatives, in the 
accompanying PRIA for the Department's methodology.
---------------------------------------------------------------------------

    To estimate the costs of requiring conformance only with WCAG 2.1 
Level A, the Department duplicated its website cost methodology while 
omitting from consideration any errors that violate WCAG 2.1 Level AA 
success criteria only. Accessibility errors that violated both WCAG 2.1 
Level A and WCAG 2.1 Level AA success criteria were retained.
    WCAG 2.1 introduced 12 new success criteria for WCAG 2.1 Levels A 
and AA.\268\ To estimate the costs of requiring WCAG 2.0 Level AA 
rather than WCAG 2.1 Level AA standards, the Department replicated its 
website cost methodology while omitting any errors classified under one 
or more of these new success criteria.
---------------------------------------------------------------------------

    \268\ These are standards 1.3.4, 1.3.5, 1.4.10, 1.4.11, 1.4.12, 
1.4.13, 2.1.4, 2.5.1, 2.5.2, 2.5.3, 2.5.4, and 4.1.3. More 
information is available at: W3C[supreg], What's New in WCAG 2.1 
(Aug. 13, 2020), https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
---------------------------------------------------------------------------

    To estimate the costs of shortening the implementation timeline for 
the proposed rule to one year for all entities, the Department retained 
its primary calculations but assumed that the full burden of the 
initial costs would be borne in Year 1. The Department then generated a 
second alternative timeline with a one-year implementation timeline for 
large entities, and a three-year implementation timeline for small 
entities. For these alternatives, the primary costs remain the same, 
but the year that they begin to accrue is changed.
    The Department believes that requiring compliance with WCAG 2.1 
Level AAA would prove infeasible, or at least unduly onerous, for some 
entities. Level AAA, which is the highest level of WCAG conformance, 
includes all of the Level A and Level AA success criteria and also 
contains additional success criteria that can provide a more enriched 
user experience, but are the most difficult to achieve for web 
developers. The W3C[supreg] does not recommend that Level AAA 
conformance be required as a general policy for entire websites because 
it is not possible to satisfy all Level AAA success criteria for some 
content.\269\ For those reasons, the Department did not quantify costs 
of requiring WCAG 2.1 Level AAA. Table 35 shows the projected 10-year 
costs of these alternatives.
---------------------------------------------------------------------------

    \269\ See W3C[supreg], Understanding Conformance, Understanding 
Requirement 1 (Aug. 19, 2022), https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/9ZG9-G5N8].
    \270\ See Section 5, Regulatory Alternatives, in the 
accompanying PRIA for the Department's methodology.

                                           Table 35--Projected Total 10-Year Costs for Regulatory Alternatives
                                                                    [Millions] \270\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                           Shorter time    Shorter time
                       Time period                          Longer time   WCAG 2.1 Level  WCAG 2.0 Level      Rule as      frame opt. 1    frame opt. 2
                                                               frame             A              AA           proposed           [a]             [a]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1..................................................          $2,387          $3,095          $3,082          $3,361          $8,344          $5,046
Year 2..................................................           2,582           3,380           3,365           3,646           5,526           6,402
Year 3..................................................           2,803           6,275           5,402           6,402           2,717           4,304
Year 4..................................................           6,030           3,262           2,817           3,270           1,836           2,389
Year 5..................................................           3,270           1,831           1,600           1,836           1,836           1,836
Year 6..................................................           1,836           1,831           1,600           1,836           1,836           1,836
Year 7..................................................           1,836           1,831           1,600           1,836           1,836           1,836
Year 8..................................................           1,836           1,831           1,600           1,836           1,836           1,836
Year 9..................................................           1,836           1,831           1,600           1,836           1,836           1,836
Year 10.................................................           1,836           1,831           1,600           1,836           1,836           1,836
PV of 10-year costs, 3% rate............................          22,721          23,620          21,286          24,275          26,238          25,806
Average annualized costs, 3% rate.......................           3,162           2,795           2,522           2,872           3,102           3,052
PV of 10-year costs, 7% rate............................          18,579          20,093          18,174          20,701          22,898          22,298
Average annualized costs, 7% rate.......................           2,712           2,860           2,587           2,947           3,260           3,174
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] Option 1 is a compliance time frame of one year for all entities. Option 2 is a compliance time frame of one year for large entities and three years
  for small entities.


[[Page 52013]]

b. Benefits of Regulatory Alternatives
    A variety of assumptions were used to estimate benefits for these 
regulatory alternatives. For the alternative compliance time frames, 
the Department adjusted only the benefit accrual rates to reflect the 
alternative time frames. Table 36 shows the 10-year average annualized 
benefits decrease to $7.7 billion from $8.9 billion with the longer 
time frame and increase to either $10.7 billion or $9.7 billion with 
the shorter time frames (using a 7 percent discount rate).
---------------------------------------------------------------------------

    \271\ See Section 5, Regulatory Alternatives, in the 
accompanying PRIA for the Department's methodology.

                                             Table 36--Average Annualized Benefits, Regulatory Alternatives
                                                                  [Millions] \271\ [a]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                           Shorter time    Shorter time
                       Beneficiary                          Longer time   WCAG 2.1 Level  WCAG 2.0 Level      Rule as      frame opt. 1    frame opt. 2
                                                               frame             A              AA           proposed           [b]             [b]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Time savings--current users.............................        $3,171.6        $2,696.9        $3,416.1        $3,416.1        $3,882.6        $3,469.8
Time savings--new users.................................           699.6           170.3           170.3           753.5           856.4           765.3
Time savings--governments...............................           458.0            83.6            83.6           493.3           560.7           501.1
Time savings--mobile apps...............................           297.4           252.9           320.4           320.4           364.1           325.4
Time savings--education.................................         2,775.4         2,766.6         3,504.4         3,504.4         4,384.2         4,070.8
Educational attainment..................................           313.4           224.7           224.7           449.5           614.1           597.6
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................         7,715.4         6,195.1         7,719.5         8,937.2        10,662.1         9,730.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] 10-Year average annualized benefits, 7 percent discount rate.
[b] Option 1 is a compliance time frame of one year for all entities. Option 2 is a compliance time frame of one year for large entities and three years
  for small entities.

    For the WCAG conformance level, the alternative assumptions were 
less straightforward to calculate. For time savings for current website 
users, current mobile app users, and postsecondary students, the 
Department used the ratio of the number of success criteria under the 
different standards to adjust benefit levels. Because the literature 
used to assess the benefits of compliance with WCAG 2.1 Level AA in the 
primary analysis was based on compliance with WCAG 2.0 Level AA, the 
Department set benefits for compliance with WCAG 2.0 Level AA equal to 
the benefits in the primary analysis. For WCAG 2.1 Level A, the 
Department multiplied primary benefits by 0.79 (based on the ratio of 
the number of success criteria in WCAG 2.1 Level A to the number of 
success criteria in WCAG 2.0 Level AA, or 30/38).\272\
---------------------------------------------------------------------------

    \272\ WCAG 2.0 Level AA has 38 success criteria, and WCAG 2.1 
Level A has 30. WGAG 2.0 Level AA is used as the baseline because 
that is the standard used by Sven Schmutz et al., Implementing 
Recommendations From Web Accessibility Guidelines: A Comparative 
Study of Nondisabled Users and Users with Visual Impairments, 59 
Human Factors and Ergonomics Soc'y 956 (2017), https://doi.org/
10.1177/0018720817708397. A Perma archive link was unavailable for 
this citation.
---------------------------------------------------------------------------

    For time savings to new users and State and local government 
entities, the Department used the low and high estimates for the less 
stringent and more stringent conformance level alternatives, 
respectively. For benefits of higher educational attainment, the 
Department simply multiplied by 0.5 and 1.5 respectively for the less 
stringent and more stringent alternatives. The basis for this is the 
gap in educational achievement closing by 5 percent or 15 percent, 
rather than 10 percent (the same alternative assumptions as used in the 
sensitivity analysis).

B. Preliminary Regulatory Flexibility Act (``PRFA'') Analysis Summary

    As directed by the Regulatory Flexibility Act of 1980, as amended 
by the Small Business Regulatory Enforcement Fairness Act of 1996, as 
well as Executive Order 13272, the Department is required to consider 
the potential impact of the proposed rule on small entities, including 
small businesses, small non-profit organizations, and small 
governmental jurisdictions. This process helps agencies to determine 
whether a proposed rule is likely to impose a significant economic 
impact on a substantial number of small entities and, in turn, to 
consider regulatory alternatives to reduce the regulatory burden on 
those small entities.This proposed rule applies to all small 
governmental jurisdictions. The Department's analysis leads it to 
conclude that the impact on small governmental jurisdictions affected 
by the proposed rule will not be significant, as measured by annualized 
costs as a percent of annual revenues. The Department presents this 
Preliminary Regulatory Flexibility Analysis for review and comment.
1. Why the Department is Considering Action
    Title II of the ADA provides that no qualified individual with a 
disability shall be excluded from participation in or denied the 
benefits of the services, programs, or activities of a State or local 
government. The Department has consistently made clear that this 
requirement includes all services, programs, and activities of public 
entities, including those provided via the web. It also includes those 
provided via mobile apps. In this NPRM, the Department proposes 
technical standards for web and mobile app accessibility to give public 
entities greater clarity in exactly how to meet their ADA obligations 
and to help ensure equal access to government services, programs, and 
activities for people with disabilities.
    Just as steps can exclude people who use wheelchairs, inaccessible 
web content can exclude people with a range of disabilities from 
accessing government services. For example, the ability to access 
voting information, find up-to-date health and safety resources, and 
look up mass transit schedules and fare information may depend on 
having access to web content and mobile apps. With accessible web 
content and mobile apps people with disabilities can access government 
services independently and privately.
2. Objectives of and Legal Basis for the Proposed Rule
    On July 26, 1990, President George H.W. Bush signed into law the 
ADA, a comprehensive civil rights law prohibiting discrimination on the 
basis of disability.\273\ Section 204(a) of the ADA directs the 
Attorney General to

[[Page 52014]]

issue regulations implementing part A of title II but exempts matters 
within the scope of the authority of the Secretary of Transportation 
under section 223, 229, or 244.\274\ Title II, which this rule 
addresses, applies to State and local government entities, and, in part 
A, protects qualified individuals with disabilities from discrimination 
on the basis of disability in services, programs, and activities 
provided by State and local government entities.
---------------------------------------------------------------------------

    \273\ 42 U.S.C. 12101-12213.
    \274\ 42 U.S.C. 12134(a). Sections 229(a) and 244 of the ADA 
direct the Secretary of Transportation to issue regulations 
implementing part B of title II, except for section 223. See 42 
U.S.C 12149; 42 U.S.C. 12164.
---------------------------------------------------------------------------

    Accordingly, the Department is proposing technical requirements to 
enable public entities to fulfill their obligations under title II to 
provide access to all of their services, programs, and activities that 
are provided via the web and mobile apps. The Department believes the 
requirements described in the NPRM are necessary to ensure the 
``equality of opportunity, full participation, independent living, and 
economic self-sufficiency'' for individuals with disabilities set forth 
in the ADA.\275\
---------------------------------------------------------------------------

    \275\ 42 U.S.C. 12101(a)(7).
---------------------------------------------------------------------------

3. Number of Small Governments Affected by the Rulemaking
    The Department has examined the impact of the proposed rule on 
small entities as required by the RFA. For the purposes of this 
analysis, impacted small public entities are independent State and 
local governmental units in the United States that serve a population 
less than 50,000.\276\ Based on this definition, the Department 
estimates a total of 88,000 small entities. This estimate includes the 
governments of counties, municipalities, townships, school districts, 
and territories with populations below 50,000 in the 2020 Census of 
Governments.\277\ No State governments qualify as small. All special 
district governments \278\ are included in this analysis because total 
population for these public entities could not be determined and the 
Department wants to ensure small governments are not undercounted.
---------------------------------------------------------------------------

    \276\ 5 U.S.C. 601(5); Small Bus. Admin., A Guide for Government 
Agencies: How to Comply with the Regulatory Flexibility Act (Aug. 
2017), https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/C57B-YV28].
    \277\ U.S. Census Bureau, 2020 State & Local Government Finance 
Historical Datasets and Tables (Sept. 2022), https://www2.census.gov/programs-surveys/gov-finances/tables/2020/2020_Individual_Unit_File.zip, Fin_PID_2020.txt file [https://perma.cc/QJM3-N7SG].
    \278\ The proposed rule defines ``special district government'' 
as ``a public entity--other than a county, municipality, or 
township, or independent school district--authorized by State law to 
provide one function or a limited number of designated functions 
with sufficient administrative and fiscal autonomy to qualify as a 
separate government and whose population is not calculated by the 
United States Census Bureau in the most recent decennial Census or 
Small Area Income and Poverty Estimates.'' A special district 
government may include, for example, a mosquito abatement district, 
utility district, transit authority, water and sewer board, zoning 
district, or other similar governmental entities that operate with 
administrative and fiscal independence.
---------------------------------------------------------------------------

    The Census of Governments includes enrollment numbers for school 
districts, but not population counts. To approximate population, the 
Department multiplied the enrollment numbers by the ratio of the 
estimated total population to school age population, by county.\279\ 
The Department notes that this method of estimating population of 
independent school districts is inconsistent with the population 
provisions in the proposed rule's regulatory text because the local 
government finances data only include enrollment numbers, not 
population numbers. Postsecondary educational institutions are 
considered as separate institutions because their funding sources are 
different from those of traditional State and local government 
entities. While public postsecondary educational institutions receive 
funding from State and local tax revenue, they also receive funding 
from tuition and fees from students and sometimes from endowments. 
Public universities are excluded from this analysis because these tend 
to be State-dependent institutions and all States have populations 
greater than 50,000. Independent community colleges were removed from 
school district counts and included separately. These were combined 
with counts of dependent community colleges from the National Center 
for Education Statistics (``NCES'').\280\
---------------------------------------------------------------------------

    \279\ U.S. Census Bureau, Annual County Resident Population 
Estimates by Age, Sex, Race, and Hispanic Origin: April 1, 2010 to 
July 1, 2019 (Oct. 2021), https://www.census.gov/data/datasets/time-series/demo/popest/2010s-counties-detail.html [https://perma.cc/SV98-ML2A].
    \280\ Institute of Education Sciences, Summary Tables, National 
Center for Education Statistics, https://nces.ed.gov/ipeds/SummaryTables/ [https://perma.cc/9SS9-D9T2].
---------------------------------------------------------------------------

4. Impact of the Proposed Rule on Small Governments
    The Department calculated costs and benefits to small governments. 
The Department also compared costs to revenues for small governments to 
evaluate the economic impact to these governments. The costs are less 
than 1 percent of revenues for every entity type, so the Department 
believes that the costs of this proposed regulation would not be overly 
burdensome for the regulated small governments.\281\ These costs 
include one-time costs for familiarization with the requirements of the 
rule; the purchase of software to assist with remediation of the 
website or mobile app; the time spent testing and remediating websites 
and mobile apps to comply with WCAG 2.1 Level AA; and elementary, 
secondary, and postsecondary education course content remediation. 
Annual costs include recurring costs for software licenses and 
remediation of future content.
---------------------------------------------------------------------------

    \281\ As noted above and as a point of reference, the United 
States Small Business Administration advises agencies that a 
potential indicator that the impact of a proposed regulation may be 
``significant'' is whether the costs exceed 1 percent of the gross 
revenues of the entities in a particular sector, although the 
threshold may vary based on the particular types of entities at 
issue. The Department estimates that the costs of this rulemaking 
for each government entity type are far less than 1 percent of 
revenues. See Small Bus. Admin., A Guide for Government Agencies: 
How to Comply with the Regulatory Flexibility Act 19 (Aug. 2017), 
https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH].
---------------------------------------------------------------------------

    The Department performed analyses to estimate the costs to test and 
remediate inaccessible websites; mobile apps; and elementary, 
secondary, and postsecondary education course content. These analyses 
involved multistage stratified cluster sampling to randomly select 
government entities, government entity websites, and government entity 
mobile apps. The Department selected samples from each type and size 
(small or large) of government entity, estimated each type of 
remediation cost, and then extrapolated the costs to the population of 
government entities in each government type and size combination. 
Annualized total costs for small governments over a 10-year period are 
estimated at $1.5 billion assuming either a 3 percent or 7 percent 
discount rate (Table 37). Additional details on how these costs were 
estimated are provided in Section VI.A.4 of this preamble.
    The most recent revenue data available are from the U.S. Census 
Bureau's State and Local Government Finances by Level of Government and 
by State: 2020.\282\ However, these data do not disaggregate revenue by 
entity type or size. Therefore, the Department first estimated the 
proportion of total local government revenue in each local government 
entity type and size using the 2012 U.S. Census Bureau's database on 
individual local government

[[Page 52015]]

finances.\283\ The Department then multiplied these proportions of the 
total local government revenues in each entity type by the 2020 total 
local government revenue to calculate the 2020 revenue for the small 
entities in each government type. Revenue data for the small 
territories are from the U.S. Government Accountability Office.\284\ 
The Department then multiplied these 2020 revenue numbers by the ratio 
of the 2021 GDP deflator to the 2020 GDP deflator to express these 
revenues in 2021 dollars.\285\ See Section VI.A.3.h for additional 
details on how these revenue numbers were derived.
---------------------------------------------------------------------------

    \282\ U.S. Census Bureau, 2020 State & Local Government Finance 
Historical Datasets and Tables (Sept. 2022), https://www.census.gov/data/datasets/2020/econ/local/public-use-datasets.html [https://perma.cc/QJM3-N7SG].
    \283\ U.S. Census Bureau, Historical Data (Oct. 2021), https://www.census.gov/programs-surveys/cog/data/historical-data.html 
[https://perma.cc/UW25-6JPZ]. The Department was unable to find more 
recent data with this level of detail. Population counts were 
adjusted for estimated population growth over the applicable period.
    \284\ GAO, U.S. TERRITORIES: Public Debt Outlook-2021 Update 
(June 2021), https://www.gao.gov/assets/gao-21-508.pdf [https://perma.cc/7Z2W-K8ZG].
    \285\ Bureau of Economic Analysis, Table 1.1.9. Implicit Price 
Deflators for Gross Domestic Product (last updated Nov. 30, 2022), 
https://apps.bea.gov/iTable/?reqid=19&step=3&isuri=1&1910=x&0=-99&1921=survey&1903=13&1904=2015&1905=2021&1906=a&1911=0 [https://perma.cc/KNK8-EM6L].
---------------------------------------------------------------------------

    Table 37 contains the costs and revenues per government type, and 
cost-to-revenue ratios using a 3 percent and 7 percent discount rate. 
The costs are less than 1 percent of revenues for every entity type, so 
the Department believes that the costs of this proposed regulation 
would not have a significant economic impact on small entities affected 
by the proposed rule.\286\
---------------------------------------------------------------------------

    \286\ As noted above and as a point of reference, the United 
States Small Business Administration advises agencies that a 
potential indicator that the impact of a proposed regulation may be 
``significant'' is whether the costs exceed 1 percent of the gross 
revenues of the entities in a particular sector, although the 
threshold may vary based on the particular types of entities at 
issue. The Department estimates that the costs of this rulemaking 
for each government entity type are far less than 1 percent of 
revenues. See Small Bus. Admin., A Guide for Government Agencies: 
How to Comply with the Regulatory Flexibility Act 19 (Aug. 2017), 
https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH]. Dependent 
community college costs (community colleges that are operated by a 
government entity rather than being an independent school district) 
are not compared to revenues. Revenues are not available directly 
for these community colleges, and the Department is unable to 
determine how to distribute these entities' costs across the State 
and local government entity types. Additionally, it is unclear if 
all public college and university revenue (e.g., tuition, fees) is 
included in the revenue recorded for the State or local entities on 
which the school is dependent.

                                                          Table 37--Number of Small Entities and Ratio of Costs to Government Revenues
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Average annual  Average annual   Total 10-year   Total 10-year
                                                                     Number of       cost per        cost per     average annual  average annual  Annual revenue  Ratio of costs  Ratio of costs
                         Government type                          small entities    entity (3%)     entity (7%)     costs (3%)      costs (7%)      (millions)      to revenue      to revenue
                                                                                        [c]             [c]         (millions)      (millions)                         (3%)            (7%)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
County..........................................................           2,105        $9,601.6       $10,150.5           $20.2           $21.4       $65,044.3            0.03            0.03
Municipality....................................................          18,729        18,269.9        19,314.5           342.2           361.7       184,538.9            0.19            0.20
Township........................................................          16,097        15,135.0        15,990.6           243.6           257.4        55,818.9            0.44            0.46
Special district................................................          38,542         1,893.1         1,991.4            73.0            76.8       278,465.3            0.03            0.03
School district [a].............................................          11,443        31,964.3        33,559.1           365.8           384.0       330,746.4            0.11            0.12
U.S. territory..................................................               2       116,995.3       124,261.1             0.2             0.2         1,242.5            0.02            0.02
CCs [b].........................................................             960       449,163.1       455,942.1           431.2           437.7             N/A             N/A             N/A
CCs--independent................................................             231       449,163.1       455,942.1           103.8           105.3        11,340.2            0.91            0.93
                                                                 -------------------------------------------------------------------------------------------------------------------------------
    Total (includes all CCs)....................................          87,878        16,798.0        17,515.5         1,476.2         1,539.2             N/A             N/A             N/A
                                                                 -------------------------------------------------------------------------------------------------------------------------------
    Total (only independent CCs)................................          87,149        13,181.3        13,848.1         1,148.7         1,206.8       927,196.7            0.12            0.13
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[a] Excludes community colleges, which are costed separately.
[b] Includes all dependent community college districts and the small independent community college districts. Revenue data are not available for the dependent community college districts.
[c] This cost consists of regulatory familiarization costs (discussed in Section VI.A.4.a of this preamble), government website testing and remediation costs (Section VI.A.4.b), mobile app
  testing and remediation costs (Section VI.A.4.c of this preamble), postsecondary education course remediation costs (Section VI.A.4.d of this preamble), elementary and secondary education
  course remediation costs (Section VI.A.4.e), and costs for third-party websites (Section VI.A.4.f of this preamble) averaged over ten years.

    The Department quantified six types of benefits in the Preliminary 
Regulatory Impact Analysis.\287\ However, only one of these types of 
benefits directly impacts State and local government entities' budgets. 
Improved website accessibility will lead some individuals who accessed 
government services via the phone, mail, or in person to begin using 
the public entity's website to complete the task. This will generate 
time savings for government employees. The Department assumed that for 
each of the 13.5 million new users of State and local government 
entities' websites, there will be six fewer transactions that require 
government personnel's time, and each of these will save the government 
about 10 minutes of labor time. This results in 13.5 million hours 
saved. To determine the share associated with small governments, the 
Department multiplied by 80 percent, which is the share of websites 
associated with small governments.
---------------------------------------------------------------------------

    \287\ See Section 4, Impact of the Proposed Rule on Small 
Governments, of the accompanying PRFA for more details.
---------------------------------------------------------------------------

    The cost of this time is valued at the median loaded wage for 
``Office and Administrative Support Occupations'' within Federal, 
State, and local governments. According to the 2021 OEWS, the median 
hourly wage rate is $22.19.\288\ This was multiplied by two to account 
for benefits and overhead.\289\ This results in a loaded hourly wage 
rate of $44.38 per hour. Multiplying 13.5 million hours by 80 percent 
and $44.38 per hour results in time savings to small State and local 
government entities of $478.9 million. Assuming lower benefits during 
the implementation period \290\ results in average annualized benefits 
of $404.0 million and $393.3 million using a 3 percent and 7 percent 
discount rate, respectively.
---------------------------------------------------------------------------

    \288\ U.S. Bureau of Labor Statistics, May 2021 National 
Industry-Specific Occupational Employment and Wage Estimates (last 
updated Mar. 2022), https://www.bls.gov/oes/current/naics2_99.htm#43-0000 [https://perma.cc/SGS7-9GXP].
    \289\ Department of Justice guidance was unavailable, so the 
Department used guidance from a different agency that frequently 
engages in rulemakings. U.S. Dep't of Health and Human Services 
Office of the Assistant Secretary for Planning and Evaluation, 
Guidelines for Regulatory Impact Analyses (2016), https://aspe.hhs.gov/reports/guidelines-regulatory-impact-analysis [https://perma.cc/7NVQ-AG8S].
    \290\ See Section VI.A.5.c.i.

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[[Page 52016]]

5. Relevant Federal Rules Duplicating, Overlapping, or Conflicting With 
the Proposed Rule
    The Department has determined that there are no other Federal rules 
that are either in conflict with this proposed rule or are duplicative 
of it. The Department recognizes that there is a potential for overlap 
with other Federal nondiscrimination laws because entities subject to 
title II of the ADA also are subject to title I of the ADA, which 
prohibits discrimination on the basis of disability in employment. Some 
public entities subject to title II may also be subject to section 504 
of the Rehabilitation Act, which prohibits discrimination on the basis 
of disability in programs and activities that receive Federal financial 
assistance. The regulation implementing title II of the ADA does not, 
however, invalidate or limit the remedies, rights, and procedures 
available under any other Federal, State, or local laws that provide 
greater or equal protection for the rights of individuals with 
disabilities (or individuals associated with them). Compliance with the 
Department's title II regulation, therefore, does not ensure compliance 
with other Federal laws.
6. Alternatives to the Proposed Rule
    The Department has considered three less-restrictive compliance 
alternatives for small governments. The first is a longer compliance 
period of four years for small public entities and special district 
governments, for which the Department adjusted its assumptions as to 
the pace at which entities would incur initial testing and remediation 
costs. Additionally, two less restrictive conformance levels were 
considered: WCAG 2.1 Level A and WCAG 2.0 Level AA. To estimate the 
costs of requiring conformance only with WCAG 2.1 Level A success 
criteria, the Department duplicated its website cost methodology 
discussed in Section VI.A.4.b of this preamble while omitting from 
consideration any errors that violate WCAG 2.1 Level AA success 
criteria only. Accessibility errors that violated both WCAG 2.1 Level A 
and WCAG 2.1 Level AA success criteria were retained. WCAG 2.1 
introduced 12 new success criteria for Levels A and AA.\291\ To 
estimate the costs of requiring WCAG 2.0 Level AA rather than WCAG 2.1 
Level AA compliance, the Department replicated its website cost 
methodology from Section VI.A.4.b while omitting any errors classified 
under one or more of these new success criteria. Costs and benefits of 
these regulatory alternatives for all governments are presented in 
Section 5, Regulatory Alternatives, of the accompanying PRIA. Here, the 
Department summarizes the costs and benefits of these regulatory 
alternatives for small entities.
---------------------------------------------------------------------------

    \291\ These are Success Criteria 1.3.4, 1.3.5, 1.4.10, 1.4.11, 
1.4.12, 1.4.13, 2.1.4, 2.5.1, 2.5.2, 2.5.3, 2.5.4, and 4.1.3. 
Success Criteria 1.3.6, 2.2.6, 2.3.3, 2.5.5, and 2.5.6 were newly 
introduced at Level AAA. See W3C,[supreg] What's New in WCAG 2.1 
(Aug. 13, 2020), https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
---------------------------------------------------------------------------

    Costs for small public entities differ for the regulatory 
alternatives as explained in Section 6, Alternatives to the Proposed 
Rule, of the accompanying PRIA. The results are summarized in Table 38.
---------------------------------------------------------------------------

    \292\ See Section 6, Alternatives to the Proposed Rule, in the 
accompanying PRFA for the Department's methodology.

    Table 38--Average Annualized Costs for Small Entities of Regulatory Alternatives, 7 Percent Discount Rate
                                                [Millions] \292\
----------------------------------------------------------------------------------------------------------------
                                                                                                     Longer
               Government type                     Rule as     WCAG 2.1 Level  WCAG 2.0 Level    implementation
                                                  proposed            A              AA              period
----------------------------------------------------------------------------------------------------------------
County.......................................           $21.4           $21.2           $21.8              $20.6
Municipality.................................           361.7           360.8           366.5              348.9
Township.....................................           257.4           256.5           261.5              248.8
Special district.............................            76.8            76.7            86.7               82.9
School district [a]..........................           384.0           383.1           382.5              362.2
U.S. territory...............................             0.2             0.2             0.2                0.2
CCs [b]......................................           437.7           436.5           357.5              392.8
CCs--independent.............................           105.3           105.0            86.0               94.5
                                              ------------------------------------------------------------------
    Total (includes all CCs).................         1,539.2         1,535.1         1,476.8            1,456.4
                                              ------------------------------------------------------------------
    Total (only independent CCs).............         1,206.8         1,203.6         1,205.3            1,158.1
----------------------------------------------------------------------------------------------------------------
[a] Excludes community colleges, which are costed separately.
[b] Includes all dependent community college districts and the small independent community college districts.

    Benefit methodology for regulatory alternatives is explained in 
Section VI.A.6 of this preamble. Here, the Department applies that same 
methodology to small entities. Using a longer compliance period, the 
Department estimates average annualized benefits would be slightly 
lower because benefits would not accrue as quickly. The Department 
estimates average annualized benefits of $378.2 million and $365.2 
million using a 3 percent and 7 percent discount rate, respectively 
(compared with $404.0 million and $393.3 million associated with the 
rule as proposed).
    The Department altered four assumptions to estimate the benefits 
associated with WCAG 2.1 Level A and WCAG 2.0 Level AA. These are the 
same assumptions altered for the sensitivity analysis in Section 
VI.A.5.c.ii of this preamble. First, ACS prevalence rates were used in 
lieu of SIPP estimates. Second, rather than assuming website usage 
becomes equivalent for individuals with and without relevant 
disabilities, the Department assumed this gap only closes by 75 
percent. Third, the average time spent per transaction was reduced by 
25 percent. Fourth, the average number of transactions per year was 
reduced by 25 percent. Incorporating these alternative assumptions 
reduces the cost savings for small governments to $68.5 million and 
$66.7 million using a 3 percent and 7 percent discount rate, 
respectively (from $404.0 million and $393.3 million associated with 
the rule as proposed).

[[Page 52017]]

C. Executive Order 13132: Federalism

    Executive Order 13132 requires executive branch agencies to 
consider whether a proposed rule will have federalism 
implications.\293\ That is, the rulemaking agency must determine 
whether the rule is likely to have substantial direct effects on State 
and local governments, on the relationship between the Federal 
Government and the States and localities, or on the distribution of 
power and responsibilities among the different levels of government. If 
an agency believes that a proposed rule is likely to have federalism 
implications, it must consult with State and local government officials 
about how to minimize or eliminate the effects.
---------------------------------------------------------------------------

    \293\ 64 FR 43255 (Aug. 4, 1999).
---------------------------------------------------------------------------

    Title II of the ADA covers State and local government services, 
programs, and activities, and, therefore, clearly has some federalism 
implications. State and local government entities have been subject to 
the ADA since 1991, and the many State and local government entities 
that receive Federal financial assistance have also been required to 
comply with the requirements of section 504 of the Rehabilitation Act. 
Hence, the ADA and the title II regulation are not novel for State and 
local governments. This proposed rule will preempt State laws affecting 
entities subject to the ADA only to the extent that those laws provide 
less protection for the rights of individuals with disabilities. This 
proposed rule does not invalidate or limit the remedies, rights and 
procedures of any State laws that provide greater or equal protection 
for the rights of individuals with disabilities.
    The Department intends to amend the regulation in a manner that 
meets the objectives of the ADA while also minimizing conflicts between 
State law and Federal interests. The Department is now soliciting 
comments from State and local officials and their representative 
national organizations through this NPRM. The Department seeks comment 
from all interested parties about the potential federalism implications 
of the proposed rule. The Department welcomes comments on the proposed 
rule's effects on State and local governments, and on whether the 
proposed rule may have direct effects on the relationship between the 
Federal Government and the States, or the distribution of power and 
responsibilities among the various levels of government.

D. National Technology Transfer and Advancement Act of 1995

    The National Technology Transfer and Advancement Act of 1995 
(``NTTAA'') directs that, as a general matter, all Federal agencies and 
departments shall use technical standards that are developed or adopted 
by voluntary consensus standards bodies, which are private, generally 
nonprofit organizations that develop technical standards or 
specifications using well-defined procedures that require openness, 
balanced participation among affected interests and groups, fairness 
and due process, and an opportunity for appeal, as a means to carry out 
policy objectives or activities.\294\ In addition, the NTTAA directs 
agencies to consult with voluntary, private sector, consensus standards 
bodies and requires that agencies participate with such bodies in the 
development of technical standards when such participation is in the 
public interest and is compatible with agency and departmental 
missions, authorities, priorities, and budget resources.\295\
---------------------------------------------------------------------------

    \294\ Public Law 104-113, 12(d)(1) (15 U.S.C. 272 note).
    \295\ Id. Sec.  12(d)(2).
---------------------------------------------------------------------------

    As discussed previously, the Department is proposing to adopt the 
Web Content Accessibility Guidelines 2.1 Level AA as the accessibility 
standard to apply to web content and mobile apps of title II entities. 
WCAG 2.1 was developed by the W3C[supreg], which has been the principal 
international organization involved in developing protocols and 
guidelines for the web. The W3C[supreg] develops a variety of technical 
standards and guidelines, including ones relating to privacy, 
internationalization of technology, and--as detailed above--
accessibility. Thus, the Department believes it is complying with the 
NTTAA in selecting WCAG 2.1 as the applicable accessibility standard. 
However, the Department is interested in comments from the public 
addressing our use of WCAG 2.1.

E. Plain Language Instructions

    The Department makes every effort to promote clarity and 
transparency in its rulemaking. In any regulation, there is a tension 
between drafting language that is simple and straightforward and 
drafting language that gives full effect to issues of legal 
interpretation. The Department operates a toll-free ADA Information 
Line at (800) 514-0301 (voice); 1-833-610-1264 (TTY) that the public is 
welcome to call for assistance understanding anything in this proposed 
rule. If any commenter has suggestions for how the regulation could be 
written more clearly, please contact Rebecca B. Bond, Chief, Disability 
Rights Section, whose contact information is provided in the 
introductory section of this proposed rule entitled, FOR FURTHER 
INFORMATION CONTACT.

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (``PRA''), no person is 
required to respond to a ``collection of information'' unless the 
agency has obtained a control number from OMB.\296\ This proposed rule 
does not contain any collections of information as defined by the PRA.
---------------------------------------------------------------------------

    \296\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------

G. Unfunded Mandates Reform Act

    Section 4(2) of the Unfunded Mandates Reform Act of 1995 \297\ 
excludes from coverage under that Act any proposed or final Federal 
regulation that ``establishes or enforces any statutory rights that 
prohibit discrimination on the basis of race, color, religion, sex, 
national origin, age, handicap, or disability.'' Accordingly, this 
rulemaking is not subject to the provisions of the Unfunded Mandates 
Reform Act.
---------------------------------------------------------------------------

    \297\ 2 U.S.C. 1503(2).
---------------------------------------------------------------------------

H. Incorporation by Reference

    As discussed above, the Department proposes to adopt the 
internationally recognized accessibility standard for web access, the 
Web Content Accessibility Guidelines (``WCAG'') 2.1 Level AA, published 
in June 2018, as the technical standard for web and mobile app 
accessibility under title II of the ADA. WCAG 2.1, published by the 
World Wide Web Consortium (``W3C[supreg]'') Web Accessibility 
Initiative (``WAI''), specifies success criteria and requirements to 
make web content more accessible to all users, including persons with 
disabilities. The Department incorporates WCAG 2.1 Level AA by 
reference into this rule, instead of restating all of its requirements 
verbatim. As noted above, to the extent there are distinctions between 
WCAG 2.1 Level AA and the standards articulated in this rule, the 
standards articulated in this rule prevail.
    The Department notes that when the W3C[supreg] publishes new 
versions of WCAG, those versions will not be automatically incorporated 
into this rule. Federal agencies cannot incorporate by reference future 
versions of standards developed by bodies like the W3C[supreg]. Federal 
agencies are required

[[Page 52018]]

to identify the particular version of a standard incorporated by 
reference in a regulation.\298\ When an updated version of a standard 
is published, an agency must revise its regulation if it seeks to 
incorporate any of the new material.
---------------------------------------------------------------------------

    \298\ See, e.g., 1 CFR 51.1(f) (``Incorporation by reference of 
a publication is limited to the edition of the publication that is 
approved [by the Office of Federal Register. Future amendments or 
revisions of the publication are not included.'').
---------------------------------------------------------------------------

    WCAG 2.1 is reasonably available to interested parties. Free copies 
of WCAG 2.1 are available online on the W3C[supreg]'s website at 
https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F]. In 
addition, a copy of WCAG 2.1 is also available for inspection at the 
Disability Rights Section, Civil Rights Division, U.S. Department of 
Justice, 150 M St. NE, 9th Floor, Washington, DC 20002 by appointment.

VII. Proposed Regulatory Text

List of Subjects for 28 CFR Part 35

    Administrative practice and procedure, Civil rights, 
Communications, Incorporation by reference, Individuals with 
disabilities, State and local requirements.

    By the authority vested in me as Attorney General by law, including 
5 U.S.C. 301; 28 U.S.C. 509, 510; sections 201 and 204 of the of the 
Americans with Disabilities Act, Public Law 101-336, as amended, and 
section 506 of the ADA Amendments Act of 2008, Public Law. 110-325, 28 
CFR part 35 is proposed to be amended as follows--

PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND 
LOCAL GOVERNMENT SERVICES

0
1. The authority citation for part 35 continues to read as follows:

    Authority:  5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 
12131, and 12205a.

Subpart A--General

0
2. Amend Sec.  35.104 by adding definitions for Archived web content, 
Conventional electronic documents, Mobile applications (apps), Special 
district government, Total population, WCAG 2.1, and Web content in 
alphabetical order to read as follows:


Sec.  35.104  Definitions.

* * * * *
    Archived web content means web content that--
    (1) Is maintained exclusively for reference, research, or 
recordkeeping;
    (2) Is not altered or updated after the date of archiving; and
    (3) Is organized and stored in a dedicated area or areas clearly 
identified as being archived.
* * * * *
    Conventional electronic documents means web content or content in 
mobile apps that is in the following electronic file formats: portable 
document formats (``PDF''), word processor file formats, presentation 
file formats, spreadsheet file formats, and database file formats.
* * * * *
    Mobile applications (``apps'') means software applications that are 
downloaded and designed to run on mobile devices, such as smartphones 
and tablets.
* * * * *
    Special district government means a public entity--other than a 
county, municipality, or township, or independent school district--
authorized by State law to provide one function or a limited number of 
designated functions with sufficient administrative and fiscal autonomy 
to qualify as a separate government and whose population is not 
calculated by the United States Census Bureau in the most recent 
decennial Census or Small Area Income and Poverty Estimates.
* * * * *
    Total population means the population estimate for a public entity 
as calculated by the United States Census Bureau in the most recent 
decennial Census or, if a public entity is an independent school 
district, the population estimate as calculated by the United States 
Census Bureau in the most recent Small Area Income and Poverty 
Estimates.
* * * * *
    WCAG 2.1 means the Web Content Accessibility Guidelines (``WCAG'') 
2.1, W3C[supreg] Recommendation 05 June 2018, https://www.w3.org/TR/2018/REC-WCAG21-20180605/ [https://perma.cc/UB8A-GG2F]. WCAG 2.1 is 
incorporated by reference elsewhere in this part (see Sec.  35.200 and 
35.202).
    Web content means information or sensory experience--including the 
encoding that defines the content's structure, presentation, and 
interactions--that is communicated to the user by a web browser or 
other software. Examples of web content include text, images, sounds, 
videos, controls, animations, and conventional electronic documents.

Subpart H--Web and Mobile Accessibility

0
3. Add new subpart H to read as follows:

Subpart H--Web and Mobile Accessibility

Sec.
35.200 Requirements for web and mobile accessibility.
35.201 Exceptions.
35.202 Conforming alternate versions.
35.203 Equivalent facilitation.
35.204 Duties.
35.205-35.209 [Reserved]


Sec.  35.200  Requirements for web and mobile accessibility.

    (a) General. A public entity shall ensure that the following are 
readily accessible to and usable by individuals with disabilities:
    (1) Web content that a public entity makes available to members of 
the public or uses to offer services, programs, or activities to 
members of the public; and
    (2) Mobile apps that a public entity makes available to members of 
the public or uses to offer services, programs, or activities to 
members of the public.
(b) Requirements
    (1) Effective two years from the publication of this rule in final 
form, a public entity, other than a special district government, with a 
total population of 50,000 or more shall ensure that the web content 
and mobile apps it makes available to members of the public or uses to 
offer services, programs, or activities to members of the public comply 
with Level A and Level AA success criteria and conformance requirements 
specified in WCAG 2.1, unless the public entity can demonstrate that 
compliance with this section would result in a fundamental alteration 
in the nature of a service, program, or activity or in undue financial 
and administrative burdens.
    (2) Effective three years from the publication of this rule in 
final form, a public entity with a total population of less than 50,000 
or any public entity that is a special district government shall ensure 
that the web content and mobile apps it makes available to members of 
the public or uses to offer services, programs, or activities to 
members of the public comply with Level A and Level AA success criteria 
and conformance requirements specified in WCAG 2.1, unless the public 
entity can demonstrate that compliance with this section would result 
in a fundamental alteration in the nature of a service, program, or 
activity or in undue financial and administrative burdens.
    (3) WCAG 2.1 is incorporated by reference into this section with 
the approval of the Director of the Federal

[[Page 52019]]

Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved 
incorporation by reference (``IBR'') material is available for 
inspection at the U.S. Department of Justice and at the National 
Archives and Records Administration (``NARA''). Contact the U.S. 
Department of Justice at: Disability Rights Section, Civil Rights 
Division, U.S. Department of Justice, 150 M St. NE, 9th Floor, 
Washington, DC 20002; ADA Information Line: (800) 514-0301 (voice) or 
1-833-610-1264 (TTY); website: www.ada.gov. For information on the 
availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email [email protected]. The 
material may be obtained from the World Wide Web Consortium 
(``W3C[supreg]'') Web Accessibility Initiative (``WAI''), 401 Edgewater 
Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-2711; email: 
[email protected]; website: www.w3.org/TR/2018/REC-WCAG21-20180605/ 
[https://perma.cc/UB8A-GG2F].


Sec.  35.201  Exceptions.

    The requirements of Sec.  35.200 of this chapter do not apply to 
the following:
    (a) Archived web content. Archived web content as defined in Sec.  
35.104 of this chapter.
    (b) Preexisting conventional electronic documents. Conventional 
electronic documents created by or for a public entity that are 
available on a public entity's website or mobile app before the date 
the public entity is required to comply with this rule, unless such 
documents are currently used by members of the public to apply for, 
gain access to, or participate in a public entity's services, programs, 
or activities.
    (c) Web content posted by a third party. Web content posted by a 
third party that is available on a public entity's website.
    (d) Linked third-party web content. Third-party web content linked 
from a public entity's website, unless the public entity uses the 
third-party web content to allow members of the public to participate 
in or benefit from the public entity's services, programs, or 
activities.
    (e) Public postsecondary institutions: password-protected course 
content. Except as provided in paragraphs (e)(1) and (2) of this 
section, course content available on a public entity's password-
protected or otherwise secured website for admitted students enrolled 
in a specific course offered by a public postsecondary institution.
    (1) This exception does not apply if a public entity is on notice 
that an admitted student with a disability is pre-registered in a 
specific course offered by a public postsecondary institution and that 
the student, because of a disability, would be unable to access the 
content available on the public entity's password-protected or 
otherwise secured website for the specific course. In such 
circumstances, all content available on the public entity's password-
protected or otherwise secured website for the specific course must 
comply with the requirements of Sec.  35.200 by the date the academic 
term begins for that course offering. New content added throughout the 
term for the course must also comply with the requirements of Sec.  
35.200 at the time it is added to the website.
    (2) This exception does not apply once a public entity is on notice 
that an admitted student with a disability is enrolled in a specific 
course offered by a public postsecondary institution after the start of 
the academic term and that the student, because of a disability, would 
be unable to access the content available on the public entity's 
password-protected or otherwise secured website for the specific 
course. In such circumstances, all content available on the public 
entity's password-protected or otherwise secured website for the 
specific course must comply with the requirements of Sec.  35.200 
within five business days of such notice. New content added throughout 
the term for the course must also comply with the requirements of Sec.  
35.200 at the time it is added to the website.
    (f) Public elementary and secondary schools: password-protected 
class or course content. Except as provided in paragraphs (f)(1) 
through (4) of this section, class or course content available on a 
public entity's password-protected or otherwise secured website for 
students enrolled, or parents of students enrolled, in a specific class 
or course at a public elementary or secondary school.
    (1) This exception does not apply if the public entity is on notice 
of the following: a student with a disability is pre-registered in a 
specific class or course offered by a public elementary or secondary 
school and that the student, because of a disability, would be unable 
to access the content available on the public entity's password-
protected or otherwise secured website for the specific class or 
course. In such circumstances, all content available on the public 
entity's password-protected or otherwise secured website for the 
specific class or course must comply with the requirements of Sec.  
35.200 by the date the term begins for that class or course. New 
content added throughout the term for the class or course must also 
comply with the requirements of Sec.  35.200 at the time it is added to 
the website.
    (2) This exception does not apply if the public entity is on notice 
of the following: a student is pre-registered in a public elementary or 
secondary school's class or course, the student's parent has a 
disability, and the parent, because of a disability, would be unable to 
access the content available on the password-protected or otherwise 
secured website for the specific class or course. In such 
circumstances, all content available on the public entity's password-
protected or otherwise secured website for the specific class or course 
must comply with the requirements of Sec.  35.200 by the date the term 
begins for that class or course. New content added throughout the term 
for the class or course must also comply with the requirements of Sec.  
35.200 at the time it is added to the website.
    (3) This exception does not apply once a public entity is on notice 
of the following: a student with a disability is enrolled in a public 
elementary or secondary school's class or course after the term begins 
and that the student, because of a disability, would be unable to 
access the content available on the public entity's password-protected 
or otherwise secured website for the specific class or course. In such 
circumstances, all content available on the public entity's password-
protected or otherwise secured website for the specific class or course 
must comply with the requirements of Sec.  35.200 within five business 
days of such notice. New content added throughout the term for the 
class or course must also comply with the requirements of Sec.  35.200 
at the time it is added to the website.
    (4) This exception also does not apply once a public entity is on 
notice of the following: a student is enrolled in a public elementary 
or secondary school's class or course after the term begins, and the 
student's parent has a disability, and the parent, because of a 
disability, would be unable to access the content available on the 
public entity's password-protected or otherwise secured website for the 
specific class or course. In such circumstances, all content available 
on the public entity's password-protected or otherwise secured website 
for the specific class or course must comply with the requirements of 
Sec.  35.200 within five business days of such notice. New content 
added throughout the term for the class or course must also comply with 
the requirements of Sec.  35.200 at the time it is added to the 
website.

[[Page 52020]]

    (g) Individualized, password-protected documents. Conventional 
electronic documents that are: (1) about a specific individual, their 
property, or their account; and (2) password-protected or otherwise 
secured.


Sec.  35.202  Conforming alternate versions.

    (a) A public entity may use conforming alternate versions of 
websites and web content, as defined by WCAG 2.1, to comply with Sec.  
35.200 only where it is not possible to make websites and web content 
directly accessible due to technical or legal limitations.
    (b) WCAG 2.1 is incorporated by reference into this section with 
the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. All approved incorporation by reference 
(``IBR'') material is available for inspection at the U.S. Department 
of Justice and at the National Archives and Records Administration 
(``NARA''). Contact the U.S. Department of Justice at: Disability 
Rights Section, Civil Rights Division, U.S. Department of Justice, 150 
M St. NE, 9th Floor, Washington, DC 20002; ADA Information Line: (800) 
514-0301 (voice) or 1-833-610-1264 (TTY); website: www.ada.gov. For 
information on the availability of this material at NARA, visit 
www.archives.gov/federal-register/cfr/ibr-locations.html or email 
[email protected]. The material may be obtained from the World 
Wide Web Consortium (``W3C[supreg]'') Web Accessibility Initiative 
(``WAI''), 401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone: 
(339) 273-2711; email: [email protected]; website: www.w3.org/TR/2018/REC-WCAG21-20180605/ [https://perma.cc/UB8A-GG2F].


Sec.  35.203  Equivalent facilitation.

    Nothing in this subpart prevents the use of designs, methods, or 
techniques as alternatives to those prescribed, provided that the 
alternative designs, methods or techniques result in substantially 
equivalent or greater accessibility and usability of the web content or 
mobile app.


Sec.  35.204  Duties.

    Where a public entity can demonstrate that full compliance with the 
requirements of Sec.  35.200 would result in a fundamental alteration 
in the nature of a service, program, or activity or in undue financial 
and administrative burdens, compliance with Sec.  35.200 is required to 
the extent that it does not result in a fundamental alteration or undue 
financial and administrative burdens. In those circumstances where 
personnel of the public entity believe that the proposed action would 
fundamentally alter the service, program, or activity or would result 
in undue financial and administrative burdens, a public entity has the 
burden of proving that compliance with Sec.  35.200 would result in 
such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the head of a public 
entity or their designee after considering all resources available for 
use in the funding and operation of the service, program, or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action would result in such an 
alteration or such burdens, a public entity shall take any other action 
that would not result in such an alteration or such burdens but would 
nevertheless ensure that individuals with disabilities receive the 
benefits or services provided by the public entity to the maximum 
extent possible.


Sec.  Sec.  35.205-35.209  [Reserved]

    Dated: July 21, 2023.
Merrick B. Garland,
Attorney General.
[FR Doc. 2023-15823 Filed 8-3-23; 8:45 am]
BILLING CODE 4410-13-P