[Federal Register Volume 89, Number 80 (Wednesday, April 24, 2024)]
[Rules and Regulations]
[Pages 31320-31396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07758]



[[Page 31319]]

Vol. 89

Wednesday,

No. 80

April 24, 2024

Part II





Department of Justice





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28 CFR Part 35





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

  Federal Register / Vol. 89, No. 80 / Wednesday, April 24, 2024 / 
Rules and Regulations  

[[Page 31320]]


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DEPARTMENT OF JUSTICE

28 CFR Part 35

[CRT Docket No. 144; AG Order No. 5919-2024]
RIN 1190-AA79


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

AGENCY: Civil Rights Division, Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice (``Department'') issues its final 
rule revising the regulation implementing title II of the Americans 
with Disabilities Act (``ADA'') to establish specific requirements, 
including the adoption of specific technical standards, for making 
accessible the services, programs, and activities offered by State and 
local government entities to the public through the web and mobile 
applications (``apps'').

DATES: 
    Effective date: This rule is effective June 24, 2024.
    Compliance dates: A public entity, other than a special district 
government, with a total population of 50,000 or more shall begin 
complying with this rule April 24, 2026. A public entity with a total 
population of less than 50,000 or any public entity that is a special 
district government shall begin complying with this rule April 26, 
2027.
    Incorporation by reference: The incorporation by reference of 
certain material listed in the rule is approved by the Director of the 
Federal Register as of June 24, 2024.

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

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of and Need for the Rule

    Title II of the ADA provides that no qualified individual with a 
disability shall, by reason of such disability, be excluded from 
participation in or denied the benefits of the services, programs, or 
activities of a public entity.\1\ The Department has consistently made 
clear that the title II nondiscrimination requirements apply to all 
services, programs, and activities of public entities (also referred to 
as ``government services''), including those provided via the web. It 
also includes those provided via mobile apps.\2\ In this rule, the 
Department establishes technical standards for web content and mobile 
app accessibility to give public entities greater clarity in exactly 
how to meet their ADA obligations and to help ensure equal access to 
government services for individuals with disabilities.
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    \1\ 42 U.S.C. 12132. The Department uses the phrases ``State and 
local government entities'' and ``public entities'' interchangeably 
throughout this rule to refer to ``public entit[ies]'' as defined in 
42 U.S.C. 12131(1) that are covered under part A of title II of the 
ADA.
    \2\ As discussed in the proposed definition in this rule, mobile 
apps are software applications that are downloaded and designed to 
run on mobile devices, such as smartphones and tablets.
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    Public entities are increasingly providing the public access to 
government services through their web content and mobile apps. For 
example, government websites and mobile apps often allow the public to 
obtain information or correspond with local officials without having to 
wait in line or be placed on hold. Members of the public can also pay 
fines, apply for State benefits, renew State-issued identification, 
register to vote, file taxes, obtain up-to-date health and safety 
resources, request copies of vital records, access mass transit 
schedules, and complete numerous other tasks via government websites. 
Individuals can perform many of these same functions on mobile apps. 
Often, however, State and local government entities' web- and mobile 
app-based services are not designed or built accessibly and as a result 
are not equally available to individuals with disabilities. Just as 
stairs can exclude people who use wheelchairs from accessing government 
buildings, inaccessible web content and mobile apps can exclude people 
with a range of disabilities from accessing government services.
    It is critical to ensure that individuals with disabilities can 
access important web content and mobile apps quickly, easily, 
independently, privately, and equally. Accessible web content and 
mobile apps help to make this possible. By allowing individuals with 
disabilities to engage more fully with their governments, accessible 
web content and mobile apps also promote the equal enjoyment of 
fundamental constitutional rights, such as rights with respect to 
speech, assembly, association, petitioning, voting, and due process of 
law.
    Accordingly, the Department is establishing technical requirements 
to provide concrete standards to public entities on how to fulfill 
their obligations under title II to provide equal access to all of 
their services, programs, and activities that are provided via the web 
and mobile apps. The Department believes, and public comments have 
reinforced, that the requirements described in this rule are necessary 
to assure ``equality of opportunity, full participation, independent 
living, and economic self-sufficiency'' for individuals with 
disabilities, as set forth in the ADA.\3\
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    \3\ 42 U.S.C. 12101(a)(7).
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B. Legal Authority

    On July 26, 1990, President George H.W. Bush signed into law the 
ADA, a comprehensive civil rights law prohibiting discrimination on the 
basis of disability.\4\ Title II of the ADA, which this rule addresses, 
applies to State and local government entities. Title II extends the 
prohibition on discrimination established by section 504 of the 
Rehabilitation Act of 1973 (``Rehabilitation Act''), as amended, 29 
U.S.C. 794 (``section 504''), to all activities of State and local 
government entities regardless of whether the entities receive Federal 
financial assistance.\5\ Part A of title II protects qualified 
individuals with disabilities from discrimination on the basis of 
disability in services, programs, and activities of State and local 
government entities. Section 204(a) of the ADA directs the Attorney 
General to issue regulations implementing part A of title II but 
exempts matters within the scope of the authority of the Secretary of 
Transportation under section 223, 229, or 244.\6\
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    \4\ 42 U.S.C. 12101-12213.
    \5\ 42 U.S.C. 12131-12165.
    \6\ See 42 U.S.C. 12134. Section 229(a) and section 244 of the 
ADA direct the Secretary of Transportation to issue regulations 
implementing part B of title II, except for section 223. See 42 
U.S.C. 12149(a), 12164.
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    The Department is the only Federal agency with authority to issue 
regulations under title II, part A, of the ADA regarding the 
accessibility of State and local government entities' web content and 
mobile apps. In addition, under Executive Order 12250, the Department 
is responsible for ensuring consistency and effectiveness in the 
implementation of section 504 across the Federal Government (aside from 
provisions relating to equal

[[Page 31321]]

employment).\7\ Given Congress's intent for parity between section 504 
and title II of the ADA, the Department must also ensure the 
consistency of any related agency interpretations of those 
provisions.\8\ The Department, therefore, also has a lead role in 
coordinating interpretations of section 504 (again, aside from 
provisions relating to equal employment), including its application to 
web content and mobile apps, across the Federal Government.
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    \7\ E.O. 12250 secs. 1-201(c), 1-503 (Nov. 2, 1980), 45 FR 
72995, 72995, 72997 (Nov. 4, 1980).
    \8\ U.S. Dep't of Just., Disability Rights Section: Federal 
Coordination of Section 504 and Title II of the ADA, C.R. Div. (Oct. 
12, 2021), https://www.justice.gov/crt/disability-rights-
section#:~:text=Federal%20Coordination%20of%20Section%20504,required%
20by%20Executive%20Order%2012250 [https://perma.cc/S5JX-WD82] (see 
Civil Rights Division (CRT) Memorandum on Federal Agencies' 
Implementation of Title II of the Americans with Disabilities Act 
and Section 504 of the Rehabilitation Act under the heading 
``Section 504 and ADA Federal Coordination Resources'').
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C. Organization of This Rule

    Appendix D to 28 CFR part 35 provides a section-by-section analysis 
of the Department's changes to the title II regulation and the 
reasoning behind those changes, in addition to responses to public 
comments received on the notice of proposed rulemaking (``NPRM'').\9\ 
The section of appendix D entitled ``Public Comments on Other Issues in 
Response to NPRM'' discusses public comments on several issues that are 
not otherwise specifically addressed in the section-by-section 
analysis. The Final Regulatory Impact Analysis (``FRIA'') and Final 
Regulatory Flexibility Analysis (``FRFA'') accompanying this rulemaking 
both contain further responses to comments relating to those analyses.
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    \9\ 88 FR 51948 (Aug. 4, 2023).
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D. Overview of Key Provisions of This Final Rule

    In this final rule, the Department adds a new subpart H to the 
title II ADA regulation, 28 CFR part 35, that sets forth technical 
requirements for ensuring that web content that State and local 
government entities provide or make available, directly or through 
contractual, licensing, or other arrangements, is readily accessible to 
and usable by individuals with disabilities. Web content is defined by 
Sec.  35.104 to mean the information and sensory experience to be 
communicated to the user by means of a user agent (e.g., a web 
browser), including code or markup that defines the content's 
structure, presentation, and interactions. This includes text, images, 
sounds, videos, controls, animations, and conventional electronic 
documents. Subpart H also sets forth technical requirements for 
ensuring the accessibility of mobile apps that a public entity provides 
or makes available, directly or through contractual, licensing, or 
other arrangements.
    The Department adopts an internationally recognized accessibility 
standard for web access, the Web Content Accessibility Guidelines 
(``WCAG'') 2.1 \10\ published in June 2018, https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F,\11\ as the 
technical standard for web content and mobile app accessibility under 
title II of the ADA. As will be explained in more detail, the 
Department is requiring that public entities comply with the WCAG 2.1 
Level AA success criteria and conformance requirements.\12\ The 
applicable technical standard will be referred to hereinafter as ``WCAG 
2.1.'' The applicable conformance level will be referred to hereinafter 
as ``Level AA.'' To the extent there are differences between WCAG 2.1 
Level AA and the standards articulated in this rule, the standards 
articulated in this rule prevail. As noted below, WCAG 2.1 Level AA is 
not restated in full in this final rule but is instead incorporated by 
reference.
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    \10\ Copyright(copyright) 2023 W3C[supreg]. This document 
includes material copied from or derived from https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. As 
explained elsewhere, WCAG 2.1 was updated in 2023, but this rule 
requires conformance to the 2018 version.
    \11\ The Permalink used for WCAG 2.1 throughout this rule shows 
the 2018 version of WCAG 2.1 as it appeared on W3C's website at the 
time the NPRM was published.
    \12\ As explained in more detail under ``WCAG Conformance 
Level'' in the section-by-section analysis of Sec.  35.200 in 
appendix D, conformance to Level AA requires satisfying the success 
criteria labeled Level A as well as those labeled Level AA, in 
addition to satisfying the relevant conformance requirements.
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    In recognition of the challenges that small public entities may 
face with respect to resources for implementing the new requirements, 
the Department has staggered the compliance dates for public entities 
according to their total population.\13\ This final rule in Sec.  
35.200(b)(1) specifies that a public entity, other than a special 
district government,\14\ with a total population of 50,000 or more must 
ensure that web content and mobile apps that the public entity provides 
or makes available, directly or through contractual, licensing, or 
other arrangements, comply with WCAG 2.1 Level AA success criteria and 
conformance requirements beginning two years after the publication of 
this final rule. Under Sec.  35.200(b)(2), a public entity with a total 
population of less than 50,000 must comply with these requirements 
beginning three years after the publication of this final rule. In 
addition, under Sec.  35.200(b)(2), all special district governments 
have three years following the publication of this final rule before 
they must begin complying with these requirements. After the compliance 
date, ongoing compliance with this final rule is required.
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    \13\ Total population, defined in Sec.  35.104 and explained 
further in the section-by-section analysis, is generally determined 
by reference to the population estimate for a public entity (or the 
population estimate for a public entity of which an entity is an 
instrumentality) as calculated by the United States Census Bureau.
    \14\ See U.S. Census Bureau, Special District Governments, 
https://www.census.gov/glossary/?term=Special+district+governments 
[https://perma.cc/8V43-KKL9]. ``Special district government'' is 
also defined in this rule at Sec.  35.104.

             Table 1--Compliance Dates for WCAG 2.1 Level AA
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           Public entity size                    Compliance date
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Fewer than 50,000 persons/special        Three years after publication
 district governments.                    of the final rule.
50,000 or more persons.................  Two years after publication of
                                          the final rule.
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    In addition, the Department has set forth exceptions from 
compliance with the technical standard required under Sec.  35.200 for 
certain types of content, which are described in detail below in the 
section-by-section analysis. If the content falls under an exception, 
that means that the public entity generally does not need to make the 
content conform to WCAG 2.1 Level AA.
    As will be explained more fully, the Department has set forth five 
specific exceptions from compliance with the technical standard 
required under Sec.  35.200: (1) archived web content; (2)

[[Page 31322]]

preexisting conventional electronic documents, unless such documents 
are currently used to apply for, gain access to, or participate in the 
public entity's services, programs, or activities; (3) content posted 
by a third party, unless the third party is posting due to contractual, 
licensing, or other arrangements with the public entity; (4) 
conventional electronic documents that are about a specific individual, 
their property, or their account and that are password-protected or 
otherwise secured; and (5) preexisting social media posts. As discussed 
further, if one of these exceptions applies, then the public entity's 
web content or content in mobile apps that is covered by an exception 
would not need to comply with the rule's technical standard. The 
Department has developed these exceptions because it believes that 
requiring public entities to make the particular content described in 
these categories accessible under all circumstances could be too 
burdensome at this time. In addition, requiring accessibility in all 
circumstances may divert important resources from making accessible key 
web content and mobile apps that public entities provide or make 
available. However, upon request from a specific individual, a public 
entity may have to provide the web content or content in mobile apps to 
that individual in an accessible format to comply with the entity's 
existing obligations under other regulatory provisions implementing 
title II of the ADA. For example, archived town meeting minutes from 
2011 might be covered by an exception from the requirement to conform 
to WCAG 2.1 Level AA. But if a person with low vision, for example, 
requests an accessible version, then the town would still need to 
address the person's request under its existing effective communication 
obligations in 28 CFR 35.160. The way that the town does this could 
vary based on the facts. For example, in some circumstances, providing 
a large-print version of the minutes might satisfy the town's 
obligations, and in other circumstances it might need to provide an 
electronic version that conforms to the aspects of WCAG 2.1 Level AA 
relevant to the person's particular access needs.
    The final rule contains a series of other mechanisms that are 
designed to make it feasible for public entities to comply with the 
rule. The final rule makes clear in Sec.  35.202 the limited 
circumstances in which ``conforming alternate versions'' of web 
content, as defined in WCAG 2.1, can be used as a means of achieving 
accessibility. As WCAG 2.1 defines it, a conforming alternate version 
is a separate version of web content that is accessible, up to date, 
contains the same information and functionality as the inaccessible web 
content, and can be reached in particular ways, such as through a 
conforming page or an accessibility-supported mechanism. However, the 
Department is concerned that WCAG 2.1 could be interpreted to permit a 
segregated approach and a worse experience for individuals with 
disabilities. The Department also understands that, in practice, it can 
be difficult to maintain conforming alternate versions because it is 
often challenging to keep two different versions of web content up to 
date. For these reasons, as discussed in the section-by-section 
analysis of Sec.  35.202, conforming alternate versions are permissible 
only when it is not possible to make web content directly accessible 
due to technical or legal limitations. Also, under Sec.  35.203, the 
final rule allows a public entity flexibility to show that its use of 
other designs, methods, or techniques as alternatives to WCAG 2.1 Level 
AA provides substantially equivalent or greater accessibility and 
usability of the web content or mobile app. Nothing in this final rule 
prohibits an entity from going above and beyond the minimum 
accessibility standards this rule sets out.
    Additionally, the final rule in Sec. Sec.  35.200(b)(1) and (2) and 
35.204 explains that conformance to WCAG 2.1 Level AA is not required 
under title II of the ADA to the extent that such conformance would 
result in a fundamental alteration in the nature of a service, program, 
or activity of the public entity or in undue financial and 
administrative burdens.
    The final rule also explains in Sec.  35.205 the limited 
circumstances in which a public entity that is not in full compliance 
with the technical standard will be deemed to have met the requirements 
of Sec.  35.200. As discussed further in the section-by-section 
analysis of Sec.  35.205, a public entity will be deemed to have 
satisfied its obligations under Sec.  35.200 in the limited 
circumstance in which the public entity can demonstrate that its 
nonconformance to the technical standard has such a minimal impact on 
access that it would not affect the ability of individuals with 
disabilities to use the public entity's web content or mobile app to 
access the same information, engage in the same interactions, conduct 
the same transactions, and otherwise participate in or benefit from the 
same services, programs, and activities as individuals without 
disabilities, in a manner that provides substantially equivalent 
timeliness, privacy, independence, and ease of use.
    More information about these provisions is provided in the section-
by-section analysis.

E. Summary of Costs and Benefits

    To estimate the costs and benefits associated with this rule, the 
Department conducted a FRIA. This analysis is required for significant 
regulatory actions under Executive Order 12866, as amended.\15\ The 
FRIA serves to inform the public about the rule's costs and benefits to 
society, taking into account both quantitative and qualitative costs 
and benefits. A detailed summary of the FRIA is included in Section IV 
of this preamble. Table 2 below shows a high-level overview of the 
Department's monetized findings. Further, this rule will benefit 
individuals with disabilities uniquely and in their day-to-day lives in 
many ways that could not be quantified due to unavailable data. Non-
monetized costs and benefits are discussed in the FRIA.
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    \15\ See E.O. 14094, 88 FR 21879 (Apr. 6, 2023); E.O. 13563, 76 
FR 3821 (Jan. 18, 2011); E.O. 13272, 67 FR 53461 (Aug. 13, 2002); 
E.O. 13132, 64 FR 43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735 
(Sept. 30, 1993).
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    Comparing annualized costs and benefits of this rule, monetized 
benefits to society outweigh the costs. Net annualized benefits over 
the first 10 years following publication of this rule total $1.9 
billion per year using a 3 percent discount rate and $1.5 billion per 
year using a 7 percent discount rate (Table 2). Additionally, beyond 
this 10-year period, benefits are likely to continue to accrue at a 
greater rate than costs because many of the costs are upfront costs and 
the benefits tend to have a delay before beginning to accrue.
    To consider the relative magnitude of the estimated costs of this 
regulation, the Department compares the costs to revenues for public 
entities. Because calculating this ratio for every public entity would 
be impractical, the Department used the estimated average annualized 
cost compared to the average annual revenue by each public entity type. 
The costs for each public entity type and size are generally estimated 
to be below 1 percent of revenues (the one exception is small 
independent community colleges, for which the cost-to-revenue ratio is 
1.05 percent and 1.10 percent using a 3 percent and 7 percent

[[Page 31323]]

discount rate, respectively),\16\ so the Department does not believe 
the rule will be unduly burdensome or costly for public entities.\17\
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    \16\ However, the Department notes that revenue for small 
independent community colleges was estimated using the 2012 Census 
of Governments, so revenue for small independent community colleges 
would likely be underestimated if small independent community 
colleges had a greater share of total local government revenue in 
2022 than in 2012. If this were true, the Department expects that 
the cost-to-revenue ratio for small independent community colleges 
would be lower.
    \17\ As a point of reference, the United States Small Business 
Administration advises agencies that a potential indicator that the 
impact of a regulation may be ``significant'' is whether the costs 
exceed 1 percent of the gross revenues of the entities in a 
particular sector, although the threshold may vary based on the 
particular types of entities at issue. See U.S. Small Bus. Admin., A 
Guide for Government Agencies: How to Comply with the Regulatory 
Flexibility Act, at 19 (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/PWL9-ZTW6]; see also U.S. Env't Prot. Agency, EPA's Action 
Development Process: Final Guidance for EPA Rulewriters: Regulatory 
Flexibility Act, at 24 (Nov. 2006), 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'').

  Table 2--10-Year Average Annualized Comparison of Costs and Benefits
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                                            3% Discount     7% Discount
                 Figure                        rate            rate
------------------------------------------------------------------------
Average annualized costs (millions).....        $3,331.3        $3,515.0
Average annualized benefits (millions)..        $5,229.5        $5,029.2
Net benefits (millions).................        $1,898.2        $1,514.2
Cost-to-benefit ratio...................             0.6             0.7
------------------------------------------------------------------------

II. Relationship to Other Laws

    The ADA and the Department's implementing regulation state that 
except as otherwise provided, the ADA shall not be construed to apply a 
lesser standard than title V of the Rehabilitation Act (29 U.S.C. 791) 
or its accompanying regulations.\18\ They further state that the ADA 
does not invalidate or limit the remedies, rights, and procedures of 
any other laws that provide greater or equal protection for the rights 
of individuals with disabilities or individuals associated with 
them.\19\
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    \18\ 42 U.S.C. 12201(a); 28 CFR 35.103(a).
    \19\ 42 U.S.C. 12201(b); 28 CFR 35.103(b).
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    The Department recognizes that entities subject to title II of the 
ADA may also be subject to other statutes that prohibit discrimination 
on the basis of disability. Compliance with the Department's title II 
regulation does not necessarily ensure compliance with other statutes 
and their implementing regulations. Title II entities are also 
obligated to fulfill the ADA's title I requirements in their capacity 
as employers,\20\ and those requirements are distinct from the 
obligations under this rule.
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    \20\ 42 U.S.C. 12111-12117.
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    Education is another context in which entities have obligations to 
comply with other laws imposing affirmative obligations regarding 
individuals with disabilities. The Department of Education's 
regulations implementing the Individuals with Disabilities Education 
Act (``IDEA'') and section 504 of the Rehabilitation Act include 
longstanding, affirmative obligations for covered schools to identify 
children with disabilities, and both require covered schools to provide 
a free appropriate public education.\21\ This final rule builds on, and 
does not supplant, those preexisting requirements. A public entity must 
continue to meet all of its existing obligations under other laws.
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    \21\ See 20 U.S.C. 1412; 29 U.S.C. 794; 34 CFR 104.32 through 
104.33.
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III. Background

A. ADA Statutory and Regulatory History

    The ADA broadly protects the rights of individuals with 
disabilities in important areas of everyday life, such as in employment 
(title I), State and local government entities' services, programs, and 
activities (title II, part A), transportation (title II, part B), and 
places of public accommodation (title III). The ADA requires newly 
designed and constructed or altered State and local government 
entities' facilities, public accommodations, and commercial facilities 
to be readily accessible to and usable by individuals with 
disabilities.\22\ Section 204(a) of title II and section 306(b) of 
title III of the ADA direct the Attorney General to promulgate 
regulations to carry out the provisions of titles II and III, other 
than certain provisions dealing specifically with transportation.\23\ 
Title II, part A, applies to State and local government entities and 
protects qualified individuals with disabilities from discrimination on 
the basis of disability in services, programs, and activities of State 
and local government entities.
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    \22\ 42 U.S.C. 12101 et seq.
    \23\ 42 U.S.C. 12134(a), 12186(b).
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    On July 26, 1991, the Department issued its final rules 
implementing title II and title III, which are codified at 28 CFR part 
35 (title II) and part 36 (title III),\24\ and include the ADA 
Standards for Accessible Design (``ADA Standards'').\25\ At that time, 
the web was in its infancy--and mobile apps did not exist--so State and 
local government entities did not use either the web or mobile apps as 
a means of providing services to the public. Thus, web content and 
mobile apps were not mentioned in the Department's title II regulation. 
Only a few years later, however, as web content of general interest 
became available, public entities began using web content to provide 
information to the public. Public entities and members of the public 
also now rely on mobile apps for critical government services.
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    \24\ Title III prohibits discrimination on the basis of 
disability in the full and equal enjoyment of places of public 
accommodation (privately operated entities whose operations affect 
commerce and fall within at least one of 12 categories listed in the 
ADA, such as restaurants, movie theaters, schools, day care 
facilities, recreational facilities, and doctors' offices) and 
requires newly constructed or altered places of public 
accommodation--as well as commercial facilities (facilities intended 
for nonresidential use by a private entity and whose operations 
affect commerce, such as factories, warehouses, and office 
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-12189.
    \25\ See 28 CFR 35.104, 36.104.
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B. History of the Department's Title II Web-Related Interpretation and 
Guidance

    The Department first articulated its interpretation that the ADA 
applies to websites of covered entities in 1996.\26\ Under title II, 
this includes ensuring that individuals with disabilities are

[[Page 31324]]

not, by reason of such disability, excluded from participation in or 
denied the benefits of the services, programs, or activities offered by 
State and local government entities, including those offered via the 
web, such as education services, voting, town meetings, vaccine 
registration, tax filing systems, applications for housing, and 
applications for benefits.\27\ The Department has since reiterated this 
interpretation in a variety of online contexts.\28\ Title II of the ADA 
also applies when public entities use mobile apps to offer their 
services, programs, or activities.
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    \26\ See Letter for Tom Harkin, U.S. Senator, from Deval L. 
Patrick, Assistant Attorney General, Civil Rights Division, U.S. 
Department of Justice (Sept. 9, 1996), https://www.justice.gov/crt/foia/file/666366/download [https://perma.cc/56ZB-WTHA].
    \27\ See 42 U.S.C. 12132.
    \28\ 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. 21, 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 Nueces County, Texas Under the Americans with 
Disabilities Act (effective Jan. 30, 2015), https://archive.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]; 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].
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    As with many other statutes, the ADA's requirements are broad and 
its implementing regulations do not include specific standards for 
every obligation under the statute. This has been the case in the 
context of web accessibility under the ADA. Because the Department had 
not previously adopted specific technical requirements for web content 
and mobile apps through rulemaking, public entities have not had 
specific direction on how to comply with the ADA's general requirements 
of nondiscrimination and effective communication. However, public 
entities still must comply with these ADA obligations with respect to 
their web content and mobile apps, including before this rule's 
effective date.
    The Department has consistently heard from members of the public--
including public entities and individuals with disabilities--that there 
is a need for additional information on how to specifically comply with 
the ADA in this context. In June 2003, the Department published a 
document entitled ``Accessibility of State and Local Government 
websites to People with Disabilities,'' which provides tips for State 
and local government entities on ways they can make their websites 
accessible so that they can better ensure that individuals with 
disabilities have equal access to the services, programs, and 
activities that are provided through those websites.\29\
---------------------------------------------------------------------------

    \29\ 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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    In March 2022, the Department released additional guidance 
addressing web accessibility for individuals with disabilities.\30\ 
This guidance expanded on the Department's previous ADA guidance by 
providing practical tips and resources for making websites accessible 
for both title II and title III entities. It also reiterated the 
Department's longstanding interpretation that the ADA applies to all 
services, programs, and activities of covered entities, including when 
they are offered via the web.
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    \30\ U.S. Dep't of Just., Guidance on Web Accessibility and the 
ADA, ADA.gov (Mar. 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/874V-JK5Z].
---------------------------------------------------------------------------

    The Department's 2003 guidance on State and local government 
entities' websites noted that ``an agency with an inaccessible website 
may also meet its legal obligations by providing an alternative 
accessible way for citizens to use the programs or services, such as a 
staffed telephone information line,'' while also acknowledging that 
this is unlikely to provide an equal degree of access.\31\ The 
Department's March 2022 guidance did not include 24/7 staffed telephone 
lines as an alternative to accessible websites. Given the way the 
modern web has developed, the Department no longer believes 24/7 
staffed telephone lines can realistically provide equal opportunity to 
individuals with disabilities. Websites--and often mobile apps--allow 
members of the public to get information or request a service within 
just a few minutes, and often to do so independently. Getting the same 
information or requesting the same service using a staffed telephone 
line takes more steps and may result in wait times or difficulty 
getting the information.
---------------------------------------------------------------------------

    \31\ 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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    For example, State and local government entities' websites may 
allow members of the public to quickly review large quantities of 
information, like information about how to register for government 
services, information on pending government ordinances, or instructions 
about how to apply for a government benefit. Members of the public can 
then use government websites to promptly act on that information by, 
for example, registering for programs or activities, submitting 
comments on pending government ordinances, or filling out an 
application for a government benefit. A member of the public could not 
realistically accomplish these tasks efficiently over the phone.
    Additionally, a person with a disability who cannot use an 
inaccessible online tax form might have to call to request assistance 
with filling out either online or mailed forms, which could involve 
significant delay, added costs, and could require providing private 
information such as banking details or Social Security numbers over the 
phone without the benefit of certain security features available for 
online transactions. A staffed telephone line also may not be 
accessible to someone who is deafblind, or who may have combinations of 
other disabilities, such as a coordination issue impacting typing and 
an audio processing disability impacting comprehension over the phone. 
Finally, calling a staffed telephone line lacks the privacy of looking 
up information on a website. A caller needing public safety resources, 
for example, might be unable to access a private location to ask for 
help on the phone, whereas an accessible website would allow users to 
privately locate resources. For these reasons, the Department does not 
now believe that a staffed telephone line--even if it is offered 24/7--
provides equal opportunity in the way that an accessible website can.

C. The Department's Previous Web Accessibility-Related Rulemaking 
Efforts

    The Department has previously pursued rulemaking efforts regarding 
web accessibility under title II. On July 26, 2010, the Department's 
advance notice of proposed rulemaking (``ANPRM'') entitled 
``Nondiscrimination on the Basis of Disability; Accessibility of Web 
Information and Services of State and Local Government Entities and 
Public Accommodations'' was published in the Federal Register.\32\ The 
ANPRM

[[Page 31325]]

announced that the Department was considering revising the regulations 
implementing titles II and III of the ADA to establish specific 
requirements for State and local government entities and public 
accommodations to make their websites accessible to individuals with 
disabilities.\33\ In the ANPRM, the Department sought information on 
various topics, including what standards, if any, it should adopt for 
web accessibility; whether the Department should adopt coverage 
limitations for certain entities, like small businesses; and what 
resources and services are available to make existing websites 
accessible to individuals with disabilities.\34\ The Department also 
requested comments on the costs of making websites accessible; whether 
there are effective and reasonable alternatives to make websites 
accessible that the Department should consider permitting; and when any 
web accessibility requirements adopted by the Department should become 
effective.\35\ The Department received approximately 400 public 
comments addressing issues germane to both titles II and III in 
response to the ANPRM. The Department later announced that it had 
decided to pursue separate rulemakings addressing web accessibility 
under titles II and III.\36\
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    \32\ 75 FR 43460 (July 26, 2010).
    \33\ Id.
    \34\ 75 FR 43465-43467.
    \35\ Id.
    \36\ See U.S. Dep't of Just., Statement of Regulatory Priorities 
(Fall 2015), https://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.\37\ The Supplemental ANPRM solicited public comment about a 
variety of issues regarding establishing technical standards for web 
access under title II.\38\ The Department received more than 200 public 
comments in response to the title II Supplemental ANPRM.
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    \37\ Nondiscrimination on the Basis of Disability; Accessibility 
of Web Information and Services of State and Local Government 
Entities, 81 FR 28658 (May 9, 2016).
    \38\ 81 FR 28662-28686.
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    On December 26, 2017, the Department published a document in the 
Federal Register withdrawing four rulemaking actions, including the 
titles II and III web rulemakings, stating that it was evaluating 
whether promulgating specific web accessibility standards through 
regulations was necessary and appropriate to ensure compliance with the 
ADA.\39\ The Department has also previously stated that it would 
continue to review its entire regulatory landscape and associated 
agenda, pursuant to the regulatory reform provisions of Executive Order 
13771 and Executive Order 13777.\40\ Those Executive orders were 
revoked by Executive Order 13992 in early 2021.\41\
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    \39\ Nondiscrimination on the Basis of Disability; Notice of 
Withdrawal of Four Previously Announced Rulemaking Actions, 82 FR 
60932 (Dec. 26, 2017).
    \40\ See Letter for Charles E. Grassley, U.S. Senator, from 
Stephen E. Boyd, Assistant Attorney General, Civil Rights Division, 
U.S. Department of Justice (Oct. 11, 2018), https://www.grassley.senate.gov/imo/media/doc/2018-10-11%20DOJ%20to%20Grassley%20-%20ADA%20website%20Accessibility.pdf 
[https://perma.cc/8JHS-FK2Q].
    \41\ E.O. 13992 sec. 2, 86 FR 7049, 7049 (Jan. 20, 2021).
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    The Department is now reengaging in efforts to promulgate 
regulations establishing technical standards for web accessibility as 
well as mobile app accessibility for public entities. On August 4, 
2023, the Department published an NPRM in the Federal Register as part 
of this rulemaking effort.\42\ The NPRM set forth the Department's 
specific proposals and sought public feedback. The NPRM included more 
than 60 questions for public input.\43\ The public comment period 
closed on October 3, 2023.\44\ The Department received approximately 
345 comments from members of the public, including individuals with 
disabilities, public entities, disability advocacy groups, members of 
the accessible technology industry, web developers, and many others. 
The Department also published a fact sheet describing the NPRM's 
proposed requirements in plain language to help ensure that members of 
the public understood the rule and had an opportunity to provide 
feedback.\45\ In addition, the Department attended listening sessions 
with various stakeholders while the public comment period was open. 
Those sessions provided important opportunities to receive through an 
additional avenue the information that members of the public wanted to 
share about the proposed rule. The three listening sessions that the 
Department attended were hosted by the U.S. Small Business 
Administration (``SBA'') Office of Advocacy, the Association on Higher 
Education and Disability (``AHEAD''), and the Great Lakes ADA Center at 
the University of Illinois at Chicago, in conjunction with the ADA 
National Network. The sessions convened by the SBA Office of Advocacy 
and the Great Lakes ADA Center were open to members of the public. 
There were approximately 200 attendees at the SBA session and 380 
attendees at the Great Lakes ADA Center session.\46\ The session with 
AHEAD included two representatives from AHEAD along with five 
representatives from public universities. The Department welcomed the 
opportunity to hear from public stakeholders. However, the Department 
informed attendees that these listening sessions did not serve as a 
substitute for submitting written comments during the notice and 
comment period.
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    \42\ Nondiscrimination on the Basis of Disability; Accessibility 
of Web Information and Services of State and Local Government 
Entities, 88 FR 51948 (Aug. 4, 2023).
    \43\ 88 FR 51958-51986.
    \44\ See 88 FR 51948.
    \45\ U.S. Dep't of Just., Fact Sheet: Notice of Proposed 
Rulemaking on Accessibility of Web Information and Services of State 
and Local Government Entities, ADA.gov (July 20, 2023), https://www.ada.gov/resources/2023-07-20-web-nprm/# [https://perma.cc/B7JL-9CVS].
    \46\ U.S. Dep't of Just., Ex Parte Communication Record on 
Proposed Rule on Nondiscrimination on the Basis of Disability; 
Accessibility of Web Information and Services of State and Local 
Government Entities and Public Accommodations (Sept. 29, 2023), 
https://www.regulations.gov/document/DOJ-CRT-2023-0007-0158 [https://perma.cc/43JX-AAMG]; U.S. Dep't of Just., Ex Parte Communication 
Record on Proposed Rule on Nondiscrimination on the Basis of 
Disability; Accessibility of Web Information and Services of State 
and Local Government Entities and Public Accommodations (Nov. 17, 
2023), https://www.regulations.gov/document/DOJ-CRT-2023-0007-0355 
[https://perma.cc/W45S-XDQH].
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D. Need for Department Action

1. Use of Web Content by Title II Entities
    As public comments have reinforced, public entities regularly use 
the web to offer services, programs, or activities to the public.\47\ 
The web can often help public entities streamline their services, 
programs, or activities and disseminate important information quickly 
and effectively. For example, members of the public routinely make 
online service requests--from requesting streetlight repairs and bulk 
trash pickups to reporting broken parking meters--and can often check 
the status of those service requests online. Public entities' websites 
also offer the opportunity for people to, for example, renew their 
vehicle registrations, submit complaints, purchase event permits, 
reserve public facilities, sign up for recreational activities, and pay 
traffic fines and property taxes, making some of these

[[Page 31326]]

otherwise time-consuming tasks relatively easy and expanding their 
availability beyond regular business hours. Access to these services 
via the web can be particularly important for those who live in rural 
communities and might otherwise need to travel long distances to reach 
government buildings.\48\
---------------------------------------------------------------------------

    \47\ See, e.g., John B. Horrigan & Lee Rainie, Pew Research 
Ctr., Connecting with Government or Government Data (Apr. 21, 2015), 
https://www.pewresearch.org/internet/2015/04/21/connecting-with-government-or-government-data/ [https://perma.cc/BFA6-QRQU]; 
Samantha Becker et al., Opportunity for All: How the American Public 
Benefits from internet Access at U.S. Libraries, at 7-8, 120-27 
(2010), https://www.imls.gov/sites/default/files/publications/documents/opportunityforall_0.pdf [https://perma.cc/3FDG-553G].
    \48\ See, e.g., NORC Walsh Ctr. for Rural Health Analysis & 
Rural Health Info. Hub, Access to Care for Rural People with 
Disabilities Toolkit (Dec. 2016), https://www.ruralhealthinfo.org/toolkits/disabilities.pdf [https://perma.cc/YX4E-QWEE].
---------------------------------------------------------------------------

    Many public entities use online resources to promote access to 
public benefits. People can use websites of public entities to file for 
unemployment or other benefits and find and apply for job openings. 
Applications for many Federal benefits, such as unemployment benefits 
and food stamps, are also available through State websites. Through the 
websites of State and local government entities, business owners can 
register their businesses, apply for occupational and professional 
licenses, bid on contracts to provide products and services to public 
entities, and obtain information about laws and regulations with which 
they must comply. The websites of many State and local government 
entities also allow members of the public to research and verify 
business licenses online and report unsavory business practices.
    People also rely on public entities' websites to engage in civic 
participation. People can frequently watch local public hearings, find 
schedules for community meetings, or take part in live chats with 
government officials on the websites of State and local government 
entities. Many public entities allow voters to begin the voter 
registration process and obtain candidate information on their 
websites. Individuals interested in running for local public offices 
can often find pertinent information concerning candidate 
qualifications and filing requirements on these websites as well. The 
websites of public entities also include information about a range of 
issues of concern to the community and about how people can get 
involved in community efforts to improve the administration of 
government services.
    Public entities are also using websites as an integral part of 
public education.\49\ Public schools at all levels, including public 
colleges and universities, offer programs, reading material, and 
classroom instruction through websites. Most public colleges and 
universities rely heavily on websites and other online technologies in 
the application process for prospective students; for housing 
eligibility and on-campus living assignments; for course registration 
and assignments; and for a wide variety of administrative and 
logistical functions in which students must participate. Similarly, in 
many public elementary and secondary school settings, teachers and 
administrators communicate via the web to parents and students about 
grades, assignments, and administrative matters.
---------------------------------------------------------------------------

    \49\ See, e.g., 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]; 
Natasha Singer, Online Schools Are Here To Stay, Even After the 
Pandemic, N.Y. Times, Apr. 11, 2021, https://www.nytimes.com/2021/04/11/technology/remote-learning-online-school.html [https://perma.cc/ZYF6-79EE] (June 23, 2023); Institute of Education 
Sciences, National Ctr. for Education Statistics, Distance Learning, 
National Center for Education Statistics, https://nces.ed.gov/fastfacts/display.asp?id=80 [https://perma.cc/XZT2-UKAD].
---------------------------------------------------------------------------

    As public comments on the NPRM have reinforced, access to the web 
has become increasingly important as a result of the COVID-19 pandemic, 
which shut down workplaces, schools, and in-person services, and forced 
millions of Americans to stay home for extended periods.\50\ In 
response, the American public increasingly turned to the web for work, 
activities, and learning.\51\ A study conducted in April 2021 found 
that 90 percent of adults reported the web was essential or important 
to them.\52\ Several commenters on the NPRM specifically highlighted 
challenges underscored by the COVID-19 pandemic such as the denial of 
access to safety information and pandemic-related services, including 
vaccination appointments.
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    \50\ See Volker Stocker et al., Chapter 2: COVID-19 and the 
Internet: Lessons Learned, in Beyond the Pandemic? Exploring the 
Impact of COVID-19 on Telecommunications and the Internet 17, 21-29 
(2023), https://www.emerald.com/insight/content/doi/10.1108/978-1-80262-049-820231002/full/pdf [https://perma.cc/82P5-GVRV]; Colleen 
McClain et al., Pew Research Ctr., The Internet and the Pandemic 3 
(Sep. 1, 2021), https://www.pewresearch.org/internet/2021/09/01/the-internet-and-the-pandemic/ [https://perma.cc/4WVA-FQ9P].
    \51\ See Jina Suh et al., Disparate Impacts on Online 
Information Access During the COVID-19 Pandemic, 13 Nature Comms. 1, 
2-6 (Nov. 19, 2022), https://www.nature.com/articles/s41467-022-34592-z#Sec6 [https://perma.cc/CP2X-3ES6]; Sara Fischer & Margaret 
Harding McGill, Broadband Usage Will Keep Growing Post-Pandemic, 
Axios (May 4, 2021), https://www.axios.com/2021/05/04/broadband-usage-post-pandemic-increase. A Perma archive link was unavailable 
for this citation; Kerry Dobransky & Eszter Hargittai, Piercing the 
Pandemic Social Bubble: Disability and Social Media Use About COVID-
19, American Behavioral Scientist (Mar. 29, 2021), https://doi.org/10.1177/00027642211003146. A Perma archive link was unavailable for 
this citation.
    \52\ Colleen McClain et al., Pew Research Ctr., The Internet and 
the Pandemic, at 3 (Sept. 1, 2021), https://www.pewresearch.org/internet/2021/09/01/the-internet-and-the-pandemic/ [https://perma.cc/4WVA-FQ9P].
---------------------------------------------------------------------------

    While important for everyone during the pandemic, access to web-
based services took on heightened importance for people with 
disabilities, many of whom face a greater risk of COVID-19 exposure, 
serious illness, and death.\53\ A report by the National Council on 
Disability indicated that COVID-19 has had a disproportionately 
negative impact on the ability of people with disabilities to access 
healthcare, education, and employment, among other areas, making remote 
access to these opportunities via the web even more important.\54\ The 
Department believes that although many public health measures 
addressing the COVID-19 pandemic are no longer in place, there have 
been durable changes to State and local government entities' operations 
and public preferences that necessitate greater access to online 
services, programs, and activities.
---------------------------------------------------------------------------

    \53\ According to the CDC, some people with disabilities ``might 
be more likely to get infected or have severe illness because of 
underlying medical conditions, congregate living settings, or 
systemic health and social inequities. All people with serious 
underlying chronic medical conditions like chronic lung disease, a 
serious heart condition, or a weakened immune system seem to be more 
likely to get severely ill from COVID-19.'' See Ctrs. for Disease 
Control and Prevention, People with Disabilities, 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].
    \54\ See Nat'l Council on Disability, 2021 Progress Report: The 
Impact of COVID-19 on People with Disabilities, (Oct. 29, 2021), 
https://www.ncd.gov/report/an-extra/ [https://perma.cc/2AUU-6R73].
---------------------------------------------------------------------------

    As discussed at greater length below, many public entities' web 
content is not fully accessible, which often means that individuals 
with disabilities are denied equal access to important services, 
programs, or activities.
2. Use of Mobile Applications by Title II Entities
    This rule also covers mobile apps because public entities often use 
mobile apps to offer their services, programs, or activities to the 
public. Mobile apps are software applications that are downloaded and 
designed to run on mobile devices, such as smartphones and tablets.\55\ 
Many public entities use

[[Page 31327]]

mobile apps to provide services and reach the public in various ways, 
including the purposes for which public entities use websites, in 
addition to others. For example, as with websites, residents can often 
use mobile apps provided or made available by public entities to submit 
service requests, such as requests to clean graffiti or repair a 
street-light outage, and track the status of these requests. Public 
entities' apps often take advantage of common features of mobile 
devices, such as camera and Global Positioning System (``GPS'') 
functions,\56\ so individuals can provide public entities with a 
precise description and location of issues. These may include issues 
such as potholes,\57\ physical barriers created by illegal dumping or 
parking, or curb ramps that need to be fixed to ensure accessibility 
for some people with disabilities. Some public transit authorities have 
transit apps that use a mobile device's GPS function to provide bus 
riders with the location of nearby bus stops and real-time arrival and 
departure times.\58\ In addition, public entities are also using mobile 
apps to assist with emergency planning for natural disasters like 
wildfires; provide information about local schools; and promote 
tourism, civic culture, and community initiatives.\59\ During the 
COVID-19 pandemic, when many State and local government entities' 
offices were closed, public entities used mobile apps to inform people 
about benefits and resources, to provide updates about the pandemic, 
and as a means to show proof of vaccination status, among other 
things.\60\
---------------------------------------------------------------------------

    \55\ Mobile apps are distinct from a website that can be 
accessed by a mobile device because, in part, mobile apps are not 
directly accessible on the web; they are often downloaded on a 
mobile device. Mona Bushnell, What Is the Difference Between an App 
and a Mobile website?, Bus. News Daily, https://www.businessnewsdaily.com/6783-mobile-website-vs-mobile-app.html 
[https://perma.cc/9LKC-GUEM] (Aug. 3, 2022). A mobile website, by 
contrast, is a website that is designed so that it can be accessed 
by a mobile device similarly to how it can be accessed on a desktop 
computer. Id. Both mobile apps and mobile websites are covered by 
this rule.
    \56\ See IBM Ctr. for the Bus. of Gov't, Using Mobile Apps in 
Government, at 11 (2015), https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf 
[https://perma.cc/248X-8A6C].
    \57\ Id. at 32.
    \58\ See id. at 28, 30-31.
    \59\ See id. at 7-8.
    \60\ See Rob Pegoraro, COVID-19 Tracking Apps, Supported by 
Apple and Google, Begin Showing Up in App Stores, USA Today, Aug. 
25, 2020, https://www.usatoday.com/story/tech/columnist/2020/08/25/google-and-apple-supported-coronavirus-tracking-apps-land-states/3435214001/ [https://perma.cc/YH8C-K2F9] (Aug. 26, 2020) (describing 
how various states' apps allow contact tracing through anonymized 
data and can provide information about testing and other COVID-19 
safety practices); Chandra Steele, Does My State Have a COVID-19 
Vaccine App, PCMag, https://www.pcmag.com/how-to/does-my-state-have-a-covid-19-vaccine-app [https://perma.cc/H338-MCWC] (Feb. 27, 2023).
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3. Barriers to Web and Mobile App Accessibility
    Millions of individuals in the United States have disabilities that 
can affect their use of the web and mobile apps.\61\ Many of these 
individuals use assistive technology to enable them to navigate 
websites or mobile apps or access information contained on those sites 
or apps. For example, individuals who are unable to use their hands may 
use speech recognition software to navigate a website or a mobile app, 
while individuals who are blind may rely on a screen reader to convert 
the visual information on a website or mobile app into speech. Many 
websites and mobile apps are coded or presented such that some 
individuals with disabilities do not have access to all the information 
or features provided on or available on the website or mobile app.\62\ 
For instance, individuals who are deaf may be unable to access 
information in web videos and other multimedia presentations that do 
not have captions. Individuals with low vision may be unable to read 
websites or mobile apps that do not allow text to be resized or do not 
provide enough contrast. Individuals with limited manual dexterity or 
vision disabilities who use assistive technology that enables them to 
interact with websites may be unable to access sites that do not 
support keyboard alternatives for mouse commands. These same 
individuals, along with individuals with cognitive and vision 
disabilities, often encounter difficulty using portions of websites and 
mobile apps that require timed responses from users but do not give 
users the opportunity to indicate that they need more time to respond.
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    \61\ See Section 2.2, ``Number of Individuals with 
Disabilities,'' in the accompanying FRIA for more information on the 
estimated prevalence of individuals with certain disabilities.
    \62\ See W3C, Diverse Abilities and Barriers, https://www.w3.org/WAI/people-use-web/abilities-barriers/ [https://perma.cc/DXJ3-BTFW] (May 15, 2017).
---------------------------------------------------------------------------

    Individuals who are blind or have low vision often confront 
significant barriers to accessing websites and mobile apps. For 
example, a study from the University of Washington analyzed 
approximately 10,000 mobile apps and found that many are highly 
inaccessible to individuals with disabilities.\63\ The study found that 
23 percent of the mobile apps reviewed did not provide content 
descriptions of images for most of their image-based buttons.\64\ As a 
result, the functionality of those buttons is not accessible for people 
who use screen readers.\65\ Additionally, other mobile apps may be 
inaccessible if they do not allow text resizing, which can provide 
larger text for people with vision disabilities.\66\
---------------------------------------------------------------------------

    \63\ See Large-Scale Analysis Finds Many Mobile Apps Are 
Inaccessible, Univ. of Washington CREATE (Mar. 1, 2021), https://create.uw.edu/initiatives/large-scale-analysis-finds-many-mobile-apps-are-inaccessible/ [https://perma.cc/442K-SBCG].
    \64\ Id.
    \65\ Id.
    \66\ See Lucia Cerchie, Text Resizing in iOS and Android, The 
A11y Project (Jan. 28, 2021), https://www.a11yproject.com/posts/text-resizing-in-ios-and-android/ [https://perma.cc/C29M-N2J6].
---------------------------------------------------------------------------

    Furthermore, many websites and mobile apps provide information 
visually, without features that allow screen readers or other assistive 
technology to retrieve the information so it can be presented in an 
accessible manner. A common barrier to accessibility is an image or 
photograph without corresponding text (``alternative text'' or ``alt 
text'') describing the image. Generally, a screen reader or similar 
assistive technology cannot ``read'' an image, leaving individuals who 
are blind with no way of independently knowing what information the 
image conveys (e.g., a simple icon or a detailed graph). Similarly, if 
websites lack headings that facilitate navigation using assistive 
technology, they may be difficult or impossible for someone using 
assistive technology to navigate.\67\ Additionally, websites or mobile 
apps may fail to present tables in a way that allows the information in 
the table to be interpreted by someone who is using assistive 
technology.\68\ Web-based forms, which are an essential part of 
accessing government services, are often inaccessible to individuals 
with disabilities who use assistive technology. For example, field 
elements on forms, which are the empty boxes on forms that receive 
input for specific pieces of information, such as a last name or 
telephone number, may lack clear labels that can be read by assistive 
technology. Inaccessible form fields make it difficult for people using 
assistive technology to fill out online forms, pay fees and fines, or 
otherwise participate in government services, programs, or activities 
using a website. Some governmental entities use inaccessible third-
party websites and mobile apps to accept online payments, while others 
request public input through their own inaccessible websites and mobile 
apps. As commenters have emphasized, these barriers greatly impede the 
ability of individuals with

[[Page 31328]]

disabilities to access the services, programs, or activities offered by 
public entities via the web and mobile apps.
---------------------------------------------------------------------------

    \67\ See, e.g., W3C, WCAG 2.1 Understanding Docs: Understanding 
SC 1.3.1: Info and Relationships (Level A), https://www.w3.org/WAI/WCAG21/Understanding/info-and-relationships [https://perma.cc/9XRQ-HWWW] (June 20, 2023).
    \68\ See, e.g., W3C, Tables Tutorial, https://www.w3.org/WAI/tutorials/tables/ [https://perma.cc/FMG2-33C4] (Feb. 16, 2023).
---------------------------------------------------------------------------

    In many instances, removing certain web content and mobile app 
accessibility barriers is neither difficult nor especially costly. For 
example, the addition of invisible attributes known as alt text or alt 
tags to an image helps orient an individual using a screen reader and 
allows them to gain access to the information on the website.\69\ Alt 
text can be added to the coding of a website without any specialized 
equipment.\70\ Similarly, adding headings, which facilitate page 
navigation for those using screen readers, can often be done easily as 
well.\71\
---------------------------------------------------------------------------

    \69\ W3C, Images Tutorial, https://www.w3.org/WAI/tutorials/images/ [https://perma.cc/G6TL-W7ZC] (Feb. 08, 2022).
    \70\ Id.
    \71\ W3C, Technique G130: Providing Descriptive Headings, 
https://www.w3.org/WAI/WCAG21/Techniques/general/G130.html [https://perma.cc/XWM5-LL6S] (June 20, 2023).
---------------------------------------------------------------------------

    Public comments on the NPRM described the lack of independence, and 
the resulting lack of privacy, that can stem from accessibility 
barriers. These commenters noted that without full and equal access to 
digital spaces, individuals with disabilities must constantly rely on 
support from others to perform tasks they could complete themselves if 
the online infrastructure enabled accessibility. Commenters noted that 
when using public entities' inaccessible web content or mobile apps for 
interactions that involve confidential information, individuals with 
disabilities must forfeit privacy and independence to seek assistance. 
Commenters pointed out that constantly needing assistance from others 
not only impacts self-confidence and perceptions of self-worth, but 
also imposes a costly and burdensome ``time tax'' because it means that 
individuals with disabilities must spend more time and effort to gain 
access than individuals without disabilities.
    Commenters also pointed out that accessible digital spaces benefit 
everyone. Just as the existence of curb cuts benefits people in many 
different scenarios--such as those using wheelchairs, pushing 
strollers, and using a trolley to deliver goods--accessible web content 
and mobile apps are generally more user friendly. For example, 
captioning is often used by individuals viewing videos in quiet public 
spaces and sufficient color contrast makes it generally easier to read 
text.
4. Inadequacy of Voluntary Compliance With Technical Standards
    The web has changed significantly, and its use has become far more 
prevalent, since Congress enacted the ADA in 1990 and since the 
Department subsequently promulgated its first ADA regulations. Neither 
the ADA nor the Department's regulations specifically addressed public 
entities' use of web content and mobile apps to provide their services, 
programs, or activities. Congress contemplated, however, that the 
Department would apply title II, part A of the statute in a manner that 
would adjust over time with changing circumstances and Congress 
delegated authority to the Attorney General to promulgate regulations 
to carry out the ADA's mandate under title II, part A.\72\ Consistent 
with this approach, the Department stated in the preamble to the 
original 1991 ADA regulations that the regulations should be 
interpreted to keep pace with developing technologies.\73\
---------------------------------------------------------------------------

    \72\ See H.R. Rep. No. 101-485, pt. 2, at 108 (1990); 42 U.S.C. 
12134(a).
    \73\ Nondiscrimination on the Basis of Disability by Public 
Accommodations and in Commercial Facilities, 56 FR 35544, 35566 
(July 26, 1991); see 28 CFR part 36, appendix B.
---------------------------------------------------------------------------

    Since 1996, the Department has consistently taken the position that 
the ADA applies to the web content of State and local government 
entities. This interpretation comes from title II's application to 
``all services, programs, and activities provided or made available by 
public entities.'' \74\ The Department has affirmed the application of 
the statute to websites in multiple technical assistance documents over 
the past two decades.\75\ Further, the Department has repeatedly 
enforced this obligation and worked with State and local government 
entities to make their websites accessible, such as through Project 
Civic Access, an initiative to promote local governments' compliance 
with the ADA by eliminating physical and communication barriers 
impeding full participation by people with disabilities in community 
life.\76\ As State and local government entities have increasingly 
turned to mobile apps to offer services, programs, or activities, the 
Department has enforced those entities' title II obligations in that 
context as well.\77\ A variety of voluntary standards and structures 
have been developed for the web through nonprofit organizations using 
multinational collaborative efforts. For example, domain names are 
issued and administered through the Internet Corporation for Assigned 
Names and Numbers, the Internet Society publishes computer security 
policies and procedures for websites, and the World Wide Web Consortium 
(``W3C'') develops a variety of technical standards and guidelines 
ranging from issues related to mobile devices and privacy to 
internationalization of technology. In the area of accessibility, the 
Web Accessibility Initiative (``WAI'') of W3C created the WCAG.
---------------------------------------------------------------------------

    \74\ See 28 CFR 35.102.
    \75\ 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]; U.S. Dep't of Just., ADA Best Practices Tool Kit for State 
and Local Governments: Chapter 5: website Accessibility Under Title 
II of the ADA, 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://www.ada.gov/resources/web-guidance/ [https://perma.cc/874V-JK5Z ]; see also supra Section III.B of this preamble.
    \76\ U.S. Dep't of Just., Project Civic Access, ADA.gov, https://www.ada.gov/civicac.htm [https://perma.cc/B6WV-4HLQ].
    \77\ See, e.g., Settlement Agreement Between the United States 
of America and Service Oklahoma (Jan. 22, 2024), https://www.justice.gov/d9/2024-01/service_oklahoma_fully_executed_agreement.01.22.24.pdf [https://perma.cc/MB2A-BKHY]; Settlement Agreement Between the United States 
of America and the Champaign-Urbana Mass Transit District (Dec. 14, 
2021), https://www.justice.gov/d9/case-documents/attachments/2021/12/14/champaign-urbana_sa.pdf [https://perma.cc/Y3CX-EHCC].
---------------------------------------------------------------------------

    Many organizations, however, have indicated that voluntary 
compliance with these accessibility guidelines has not resulted in 
equal access for individuals with disabilities; accordingly, they have 
urged the Department to take regulatory action to ensure web content 
and mobile app accessibility.\78\ The National Council on Disability, 
an independent Federal agency that advises the President, Congress, and 
other agencies about programs, policies, practices, and procedures 
affecting people with disabilities, has similarly emphasized the need 
for regulatory action on this issue.\79\ The Department has also heard

[[Page 31329]]

from State and local government entities and businesses asking for 
clarity on the ADA's requirements for websites through regulatory 
efforts.\80\ Public commenters responding to the NPRM have also 
emphasized the need for regulatory action on this issue to ensure that 
public entities' services, programs, and activities offered via the web 
and mobile apps are accessible, and have expressed that this rule is 
long overdue.
---------------------------------------------------------------------------

    \78\ 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 Technology & Telecommunications and 
Rights Task Force, re: Adopting Regulatory and Subregulatory 
Initiatives To Advance Accessibility and Usability of websites, 
Online Systems, Mobile Applications, and Other Forms of Information 
and Communication Technology Under Titles II and III of the ADA 
(Mar. 23, 2022), https://www.c-c-d.org/fichiers/CCD-Web-Accessibility-Letter-to-DOJ-03232022.pdf [https://perma.cc/Q7YB-UNKV].
    \79\ See Nat'l Council on Disability, The Need for Federal 
Legislation and Regulation Prohibiting Telecommunications and 
Information Services Discrimination (Dec. 19, 2006), https://www.ncd.gov/assets/uploads/reports/2006/ncd-need-for-regulation-prohibiting-it-discrimination-2006.pdf [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., Nat'l 
Council on Disability, National Disability Policy: A Progress 
Report: Executive Summary (Oct. 7, 2016), https://files.eric.ed.gov/fulltext/ED571832.pdf [https://perma.cc/ZH3P-8LCZ] (urging the 
Department to adopt a web accessibility regulation).
    \80\ See, e.g., Letter for U.S. Dep't of Just. from Nat'l Ass'n 
of Realtors (Dec. 13, 2017), https://www.narfocus.com/billdatabase/clientfiles/172/3/3058.pdf [https://perma.cc/Z93F-K88P].
---------------------------------------------------------------------------

    In light of the long regulatory history and the ADA's current 
general requirement to make all services, programs, and activities 
accessible, the Department expects that public entities have made 
strides to make their web content and mobile apps accessible since the 
2010 ANPRM was published. Such strides have been supported by the 
availability of voluntary web content and mobile app accessibility 
standards, as well as by the Department's clearly stated position--
supported by judicial decisions \81\--that all services, programs, and 
activities of public entities, including those available on websites, 
must be accessible. Still, as discussed above, individuals with 
disabilities continue to struggle to obtain access to the web content 
and mobile apps of public entities. Many public comments on the NPRM 
shared anecdotes of instances where individuals were unable to access 
government services, programs, or activities offered via the web and 
mobile apps, or had to overcome significant barriers to be able to do 
so, in spite of public entities' existing obligations under title II.
---------------------------------------------------------------------------

    \81\ See, e.g., Meyer v. Walthall, 528 F. Supp. 3d 928, 959 
(S.D. Ind. 2021) (``[T]he Court finds that Defendants' websites 
constitute services or activities within the purview of Title II and 
section 504, requiring Defendants to provide effective access to 
qualified individuals with a disability.''); Price v. City of Ocala, 
Fla., 375 F. Supp. 3d 1264, 1271 (M.D. Fla. 2019) (``Title II 
undoubtedly applies to websites.''); Payan v. Los Angeles Cmty. 
Coll. Dist., No. 2:17-CV-01697-SVW-SK, 2019 WL 9047062, at *12 (C.D. 
Cal. Apr. 23, 2019) (``[T]he ability to sign up for classes on the 
website and to view important enrollment information is itself a 
`service' warranting protection under Title II and Section 504.''); 
Eason v. New York State Bd. of Elections, No. 16-CV-4292 (KBF), 2017 
WL 6514837, at *1 (S.D.N.Y. Dec. 20, 2017) (stating, in a case 
involving a State's website, that ``Section 504 of the 
Rehabilitation Act and Title II of the Americans with Disabilities 
Act . . . long ago provided that the disabled are entitled to 
meaningful access to a public entity's programs and services. Just 
as buildings have architecture that can prevent meaningful access, 
so too can software.''); Hindel v. Husted, No. 2:15-CV-3061, 2017 WL 
432839, at *5 (S.D. Ohio Feb. 1, 2017) (``The Court finds that 
Plaintiffs have sufficiently established that Secretary Husted's 
website violates Title II of the ADA because it is not formatted in 
a way that is accessible to all individuals, especially blind 
individuals like the Individual Plaintiffs whose screen access 
software cannot be used on the website.'').
---------------------------------------------------------------------------

    The Department has brought enforcement actions to address web 
content and mobile app access, resulting in a significant number of 
settlement agreements with State and local government entities.\82\ 
Other Federal agencies have also taken enforcement action against 
public entities regarding the lack of website access for individuals 
with disabilities. In December 2017, for example, the U.S. Department 
of Education entered into a resolution agreement with the Alaska 
Department of Education and Early Development after it found that the 
public entity had violated Federal statutes, including title II of the 
ADA, by denying individuals with disabilities an equal opportunity to 
participate in the public entity's services, programs, or activities 
due to website inaccessibility.\83\ As another example, the U.S. 
Department of Housing and Urban Development took action against the 
City of Los Angeles, and its subrecipient housing providers, to ensure 
that it maintained an accessible website concerning housing 
opportunities.\84\
---------------------------------------------------------------------------

    \82\ 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. 21, 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 (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].
    \83\ U.S. Dep't of Educ., In re Alaska Dep't of Educ. & Early 
Dev., OCR Reference No. 10161093 (Dec. 11, 2017) (resolution 
agreement), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b.pdf [https://perma.cc/DUS4-HVZJ], 
superseded by U.S. Dep't of Educ., In re Alaska Dep't of Educ. & 
Early Dev., OCR Reference No.10161093 (Mar. 28, 2018) (revised 
resol. agreement), 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 resol. agreement).
    \84\ See Voluntary Compliance Agreement Between the U.S. Dep't 
of Housing & Urban Dev. and the City of Los Angeles, Cal. (Aug. 2, 
2019), https://www.hud.gov/sites/dfiles/Main/documents/HUD-City-of-Los-Angeles-VCA.pdf [https://perma.cc/X5RN-AJ5K].
---------------------------------------------------------------------------

    The Department believes, and public comments on the NPRM have 
reinforced, that adopting technical standards for web content and 
mobile app accessibility provides clarity to public entities regarding 
how to make accessible the services, programs, and activities that they 
offer via the web and mobile apps. Commenters have specifically 
indicated that unambiguous, consistent, and comprehensive standards 
will help resolve existing confusion around the technical requirements 
for accessibility on public entities' web content and mobile apps. 
Adopting specific technical standards for web content and mobile app 
accessibility also helps to provide individuals with disabilities with 
consistent and predictable access to the web content and mobile apps of 
public entities.

IV. Regulatory Process Matters

    The Department has examined the likely economic and other effects 
of this final rule addressing the accessibility of web content and 
mobile apps, as required under applicable Executive Orders,\85\ Federal 
administrative statutes (e.g., the Regulatory Flexibility Act,\86\ 
Paperwork Reduction Act,\87\ and Unfunded Mandates Reform Act \88\), 
and other regulatory guidance.\89\
---------------------------------------------------------------------------

    \85\ See E.O. 14094, 88 FR 21879 (Apr. 6, 2023); E.O. 13563, 76 
FR 3821 (Jan. 18, 2011); E.O. 13272, 67 FR 53461 (Aug. 13, 2002); 
E.O. 13132, 64 FR 43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735 
(Sept. 30, 1993).
    \86\ Regulatory Flexibility Act of 1980 (``RFA''), as amended by 
the Small Bus. Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
601 et seq.
    \87\ Paperwork Reduction Act (``PRA''), 44 U.S.C. 3501 et seq.
    \88\ Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.
    \89\ See Office of Mgmt. and Budget, Circular A-4 (Sept. 17, 
2003) (superseded by Office of Mgmt. and Budget, Circular A-4 (of 
Nov. 9, 2023)).
---------------------------------------------------------------------------

    As discussed previously, the purpose of this rule is to revise the 
regulation implementing title II of the ADA in order to ensure that the 
services, programs, and activities offered by State and local 
government entities to the public via web content and mobile apps are 
accessible to individuals with disabilities. The Department is adopting 
specific technical standards related to the accessibility of the web 
content and mobile apps of State and local government entities and is 
specifying

[[Page 31330]]

dates by which such web content and mobile apps must meet those 
standards. This rule is necessary to help public entities understand 
how to ensure that individuals with disabilities will have equal access 
to the services, programs, and activities that public entities provide 
or make available through their web content and mobile apps.
    The Department has carefully crafted this final rule to better 
ensure the protections of title II of the ADA, while at the same time 
doing so in an economically efficient manner. After reviewing the 
Department's assessment of the likely costs of this regulation, the 
Office of Management and Budget (``OMB'') has determined that it is a 
significant regulatory action within the meaning of Executive Order 
12866, as amended. As such, the Department has undertaken a FRIA 
pursuant to Executive Order 12866. The Department has also undertaken a 
FRFA as specified in section 604(a) of the Regulatory Flexibility Act. 
The results of both of these analyses are summarized below. Lastly, the 
Department does not believe that this regulation will have any 
significant impact relevant to the Paperwork Reduction Act, the 
Unfunded Mandates Reform Act, or the federalism principles outlined in 
Executive Order 13132.

A. Final Regulatory Impact Analysis Summary

    The Department has prepared a FRIA for this rulemaking. This 
rulemaking also contains a FRFA. The Department contracted with Eastern 
Research Group Inc. (``ERG'') to prepare this economic assessment. This 
summary provides an overview of the Department's economic analysis and 
key findings in the FRIA. The full FRIA will be made available at 
https://www.justice.gov/crt/disability-rights-section.
    Requiring State and local government entity web content and mobile 
apps to conform to WCAG 2.1 Level AA will result in costs for State and 
local government entities to remediate and maintain their web content 
and mobile apps to meet this standard. The Department estimates that 
109,893 State and local government entity websites and 8,805 State and 
local government mobile apps will be affected by the rule. These 
websites and mobile apps provide services on behalf of and are managed 
by 91,489 State and local government entities that will incur these 
costs. These costs include one-time costs for familiarization with the 
requirements of the rule; testing, remediation, and operating and 
maintenance (``O&M'') costs for websites; testing, remediation, and O&M 
costs for mobile apps; and school course remediation costs. The 
remediation costs include both time and software components.
    Initial familiarization, testing, and remediation costs of the rule 
are expected to occur over the first two or three years until 
compliance is required and are presented in Table 3 (two years for 
large governments and three years for small governments). Annualized 
recurring costs after implementation are shown in Table 4. These 
initial and recurring costs are then combined to show total costs over 
the 10-year time horizon (Table 5 and Table 6) and annualized costs 
over the 10-year time horizon (Table 7 and Table 8). Annualized costs 
over this 10-year period are estimated at $3.3 billion assuming a 3 
percent discount rate and $3.5 billion assuming a 7 percent discount 
rate. This includes $16.9 billion in implementation costs accruing 
during the first three years (the implementation period), undiscounted, 
and $2.0 billion in annual O&M costs during the next seven years. All 
values are presented in 2022 dollars as 2023 data were not yet 
available.
    Benefits will generally accrue to all individuals who access State 
and local government entity websites and mobile apps, and additional 
benefits will accrue to individuals with certain types of disabilities. 
The WCAG 2.1 Level AA standards for web content and mobile app 
accessibility primarily benefit individuals with vision, hearing, 
cognitive, and manual dexterity disabilities because accessibility 
standards are intended to address barriers that often impede access for 
people with these disability types. Using the U.S. Census Bureau's 
Survey of Income and Program Participation (``SIPP'') 2022 data, the 
Department estimates that 5.5 percent of adults in the United States 
have a vision disability, 7.6 percent have a hearing disability, 11.3 
percent have a cognitive disability, and 5.8 percent have a manual 
dexterity disability.\90\ Due to the incidence of multiple 
disabilities, the total share of people with one or more of these 
disabilities is 21.3 percent.
---------------------------------------------------------------------------

    \90\ See U.S. Census Bureau, 2022 SIPP Data, https://www.census.gov/programs-surveys/sipp/data/datasets/2022-data/2022.html [https://perma.cc/7HW3-7GHR] (last visited Mar. 13, 2024). 
Analysis of this dataset is discussed further in the Department's 
accompanying FRIA, at section 2.2, Number of Individuals with 
Disabilities.
---------------------------------------------------------------------------

    The Department monetized benefits for both people with these 
disabilities and people without disabilities.\91\ There are many 
additional benefits that have not been monetized due to lack of data 
availability. Benefits that cannot be monetized are discussed 
qualitatively. These non-quantified benefits are central to this rule's 
potential impact as they include concepts inherent to any civil rights 
law--such as equality and dignity. Other impacts to individuals include 
increased independence, increased flexibility, increased privacy, 
reduced frustration, decreased reliance on companions, and increased 
program participation. This rule will also benefit State and local 
government entities through increased certainty about what constitutes 
an accessible website, a potential reduction in litigation, and a 
larger labor market pool (due to increased educational attainment and 
access to job training).
---------------------------------------------------------------------------

    \91\ Throughout the Department's FRIA, the Department uses the 
phrases ``individuals without a relevant disability'' or 
``individuals without disabilities'' to refer to individuals without 
vision, hearing, cognitive, or manual dexterity disabilities. These 
individuals may have other types of disabilities, or they may be 
individuals without any disabilities at all.
---------------------------------------------------------------------------

    Annual and annualized monetized benefits of this rule are presented 
in Table 9, Table 10, and Table 11. Annual benefits, beginning once the 
rule is fully implemented, total $5.3 billion. Because individuals 
generally prefer benefits received sooner, future benefits need to be 
discounted to reflect the lower value due to the wait to receive them. 
OMB guidance states that annualized benefits and costs should be 
presented using real discount rates of 3 percent and 7 percent.\92\ 
Benefits annualized over a 10-year period that includes both three 
years of implementation and seven years post-implementation total $5.2 
billion per year, assuming a 3 percent discount rate, and $5.0 billion 
per year, assuming a 7 percent discount rate.
---------------------------------------------------------------------------

    \92\ Office of Mgmt. and Budget, Circular A-4 (Sep 17, 2003), 
https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf [https://perma.cc/VSR2-UFT8]. Office of 
Mgmt. and Budget, Circular A-4 (Sep 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf [https://perma.cc/VSR2-UFT8https://perma.cc/VSR2-UFT8].
---------------------------------------------------------------------------

    Comparing annualized costs and benefits, monetized benefits to 
society outweigh the costs. Net annualized benefits over the first 10 
years post publication of this rule total $1.9 billion per year using a 
3 percent discount rate and $1.5 billion per year using a 7 percent 
discount rate (Table 12). Additionally, beyond this 10-year period, 
benefits are likely to continue to accrue at a greater rate than costs 
because many of the costs are upfront costs and the benefits tend to 
have a delay before beginning to accrue.
    To consider the relative magnitude of the estimated costs of this 
regulation, the Department compares the costs to revenues for public 
entities. Because

[[Page 31331]]

calculating this ratio for every public entity would be impractical, 
the Department used the estimated average annualized cost compared to 
the average annual revenue by each government entity type. The costs 
for each government entity type and size are generally estimated to be 
below 1 percent of revenues (the one exception is small independent 
community colleges, for which the cost-to-revenue ratio is 1.05 percent 
and 1.10 percent using a 3 percent discount rate and a 7 percent 
discount rate, respectively),\93\ so the Department does not believe 
the rule will be unduly burdensome or costly for public entities.\94\
---------------------------------------------------------------------------

    \93\ However, the Department notes that revenue for small 
independent community colleges was estimated using the 2012 Census 
of Governments, so revenue for small independent community colleges 
would likely be underestimated if small independent community 
colleges had a greater share of total local government revenue in 
2022 than in 2012. If this were true, the Department expects that 
the cost-to-revenue ratio for small independent community colleges 
would be lower.
    \94\ As a point of reference, the United States Small Business 
Administration advises agencies that a potential indicator that the 
impact of a regulation may be ``significant'' is whether the costs 
exceed 1 percent of the gross revenues of the entities in a 
particular sector, although the threshold may vary based on the 
particular types of entities at issue. See U.S. Small Bus. Admin., A 
Guide for Government Agencies: How To Comply with the Regulatory 
Flexibility Act, at 19 (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/PWL9-ZTW6]; see also U.S. Env't Prot. Agency, EPA's Action 
Dev. Process: Final Guidance for EPA Rulewriters: Regulatory 
Flexibility Act, at 9, 24 (Nov. 2006), 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 ``[p]resumed'' to have ``no significant economic 
impact on a substantial number of small entities'').
---------------------------------------------------------------------------

    The Department received some comments on the proposed rule's 
estimated costs and benefits. These comments are discussed throughout 
the FRIA. One methodological change was made from the analysis 
performed for the NPRM on the timing of compliance for making password-
protected course content accessible by public educational entities, 
which is discussed further in the FRIA. However, the numbers in the 
FRIA also differ from the proposed rule because data have been updated 
to reflect the most recently available data and because monetary values 
are now reported in 2022 dollars (whereas the analysis performed for 
the NPRM presented values in 2021 dollars).

                                            Table 3--Initial Familiarization, Testing, and Remediation Costs
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Special       School         U.S.
              Cost                   State        County     Municipal     Township     district     district     territories    Higher ed.     Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization......        $0.02        $1.00        $6.42        $5.35        $12.7        $4.03           $0.00        $0.62        $30.1
Websites........................        253.0        819.9      2,606.6      1,480.7        408.5      2,014.0             7.1      1,417.4      9,007.3
Mobile apps.....................         14.7         56.8        100.0          1.4          0.0        406.3             1.3         68.9        649.2
Postsecondary course remediation          N/A          N/A          N/A          N/A          N/A          N/A             N/A      5,508.5      5,508.5
Primary and secondary course              N/A         50.8         19.8         42.8          N/A      1,134.1             N/A          N/A      1,247.5
 remediation....................
Third-party website remediation.          7.2         39.4        147.2         85.5         19.6        113.8             0.0         93.6        506.4
                                 -----------------------------------------------------------------------------------------------------------------------
    Total.......................        275.0        967.8      2,880.1      1,615.8        440.8      3,672.2             8.4      7,089.1     16,949.1
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                    Table 4--Average Annual Cost After Implementation
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Special       School         U.S.
              Cost                   State        County     Municipal     Township     district     district     territories    Higher ed.     Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Websites........................        $22.0        $71.9       $237.3       $136.9        $43.8       $181.7            $0.6       $123.4       $817.8
Mobile apps.....................         0.01         0.04         0.03         0.00         0.00         0.23            0.00         0.05         0.35
Postsecondary course remediation          N/A          N/A          N/A          N/A          N/A          N/A             N/A      1,001.6      1,001.6
Primary and secondary course              N/A          5.1          2.0          4.3          N/A        113.4             N/A          N/A        124.7
 remediation....................
Third-party website remediation.          0.6          3.5         13.4          7.9          2.1         10.2             0.0          8.2         45.9
                                 -----------------------------------------------------------------------------------------------------------------------
    Total.......................         22.6         80.6        252.7        149.1         45.9        305.6             0.6      1,133.2      1,990.3
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                          Table 5--Present Value of 10-Year Total Cost, 3 Percent Discount Rate
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Special       School         U.S.
              Cost                   State        County     Municipal     Township     district     district     territories    Higher ed.     Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization......        $0.02        $0.97        $6.23        $5.20       $12.33        $3.91           $0.00        $0.60       $29.26
Websites........................        366.5      1,190.3      3,812.6      2,174.4        634.1      2,939.6            10.3      2,053.9     13,181.7
Mobile apps.....................         14.1         54.2         95.8          1.3          0.0        385.4             1.2         66.2        618.1
Postsecondary course remediation          N/A          N/A          N/A          N/A          N/A          N/A             N/A     11,890.1     11,890.1
Primary and secondary course              N/A         79.6         31.1         67.1          N/A      1,778.9             N/A          N/A      1,956.8
 remediation....................
Third-party website remediation.         10.5         57.4        215.3        125.6         30.4        165.8             0.0        135.6        740.7
                                 -----------------------------------------------------------------------------------------------------------------------
    Total.......................        391.1      1,382.4      4,161.0      2,373.7        676.8      5,273.6            11.5     14,146.5     28,416.7
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 31332]]


                                          Table 6--Present Value of 10-Year Total Cost, 7 Percent Discount Rate
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Special       School         U.S.
              Cost                   State        County     Municipal     Township     district     district     territories    Higher ed.     Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization......        $0.02        $0.93        $6.00        $5.00       $11.87        $3.76           $0.00        $0.58       $28.16
Websites........................        323.3      1,048.5      3,327.8      1,892.9        548.3      2,570.7             9.1      1,811.7     11,532.2
Mobile apps.....................         13.3         50.7         90.5          1.3          0.0        358.5             1.2         62.5        577.9
Postsecondary course remediation          N/A          N/A          N/A          N/A          N/A          N/A             N/A     10,188.1     10,188.1
Primary and secondary course              N/A         69.7         27.2         58.7          N/A      1,557.3             N/A          N/A      1,713.0
 remediation....................
Third-party website remediation.          9.3         50.5        187.9        109.3         26.3        145.3             0.0        119.6        648.2
                                 -----------------------------------------------------------------------------------------------------------------------
    Total.......................        345.9      1,220.4      3,639.4      2,067.2        586.5      4,635.5            10.2     12,182.5     24,687.6
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                            Table 7--10-Year Average Annualized Cost, 3 Percent Discount Rate
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Special       School         U.S.
              Cost                   State        County     Municipal     Township     district     district     territories    Higher ed.     Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization......        $0.00        $0.11        $0.73        $0.61        $1.44        $0.46           $0.00        $0.07        $3.43
Websites........................         43.0        139.5        446.9        254.9         74.3        344.6             1.2        240.8      1,545.3
Mobile apps.....................          1.7          6.3         11.2          0.2          0.0         45.2             0.1          7.8         72.5
Postsecondary course remediation          N/A          N/A          N/A          N/A          N/A          N/A             N/A      1,393.9      1,393.9
Primary and secondary course              N/A          9.3          3.6          7.9          N/A        208.5             N/A          N/A        229.4
 remediation....................
Third-party website remediation.          1.2          6.7         25.2         14.7          3.6         19.4             0.0         15.9         86.8
                                 -----------------------------------------------------------------------------------------------------------------------
    Total.......................         45.8        162.1        487.8        278.3         79.3        618.2             1.4      1,658.4      3,331.3
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                            Table 8--10-Year Average Annualized Cost, 7 Percent Discount Rate
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Special       School         U.S.
              Cost                   State        County     Municipal     Township     district     district     territories    Higher ed.     Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization......        $0.00        $0.13        $0.85        $0.71        $1.69        $0.54           $0.00        $0.08        $4.01
Websites........................         46.0        149.3        473.8        269.5         78.1        366.0             1.3        257.9      1,641.9
Mobile apps.....................          1.9          7.2         12.9          0.2          0.0         51.0             0.2          8.9         82.3
Postsecondary course remediation          N/A          N/A          N/A          N/A          N/A          N/A             N/A      1,450.6      1,450.6
Primary and secondary course              N/A          9.9          3.9          8.4          N/A        221.7             N/A          N/A        243.9
 remediation....................
Third-party website remediation.          1.3          7.2         26.8         15.6          3.7         20.7             0.0         17.0         92.3
                                 -----------------------------------------------------------------------------------------------------------------------
    Total.......................         49.2        173.8        518.2        294.3         83.5        660.0             1.5      1,734.5      3,515.0
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                Table 9--Annual Benefit After Full Implementation
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                      Without
          Benefit type                Visual      Other relevant     relevant        State and         Total
                                    disability    disability \a\   disabilities    local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users.....          $813.5        $1,022.1        $2,713.9             N/A        $4,549.5
Time savings--mobile apps.......            76.3            95.9           254.5             N/A           426.7
Educational attainment..........            10.2           295.8             N/A             N/A           306.0
                                 -------------------------------------------------------------------------------
    Total benefits..............           900.0         1,413.7         2,968.5             0.0         5,282.2
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
  relevant disabilities.''


                     Table 10--10-Year Average Annualized Benefits, 3 Percent Discount Rate
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                      Without
          Benefit type                Visual      Other relevant     relevant        State and         Total
                                    disability    disability \a\   disabilities    local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users.....          $686.3          $862.3        $2,289.6             N/A        $3,838.3
Time savings--mobile apps.......            64.4            80.9           214.7             N/A           360.0

[[Page 31333]]

 
Educational attainment..........            34.4           996.9             N/A             N/A         1,031.3
                                 -------------------------------------------------------------------------------
    Total benefits..............           785.1         1,940.0         2,504.4             0.0         5,229.5
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
  relevant disabilities.''


                     Table 11--10-Year Average Annualized Benefits, 7 Percent Discount Rate
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                                      Without
          Benefit type                Visual      Other relevant     relevant        State and         Total
                                    disability    disability \a\   disabilities    local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users.....          $668.1          $839.4        $2,229.0             N/A        $3,736.6
Time savings--mobile apps.......            62.7            78.7           209.0             N/A           350.4
Educational attainment..........            31.4           910.8             N/A             N/A           942.2
                                 -------------------------------------------------------------------------------
    Total benefits..............           762.2         1,828.9         2,438.0             0.0         5,029.2
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
  relevant disabilities.''


  Table 12--10-Year Average Annualized Comparison of Costs and Benefits
------------------------------------------------------------------------
                                            3% Discount     7% Discount
                 Figure                        rate            rate
------------------------------------------------------------------------
Average annualized costs (millions).....        $3,331.3        $3,515.0
Average annualized benefits (millions)..        $5,229.5        $5,029.2
Net benefits (millions).................        $1,898.2        $1,514.2
Cost-to-benefit ratio...................             0.6             0.7
------------------------------------------------------------------------

B. Final Regulatory Flexibility Analysis Summary

    The Department has prepared a FRFA to comply with its obligations 
under the Regulatory Flexibility Act and related laws and Executive 
Orders requiring executive branch agencies to consider the effects of 
regulations on small entities.\95\ The Department's FRFA includes an 
explanation of steps that the Department has taken to minimize the 
impact of this rule on small entities, responses to a comment by the 
Chief Counsel for Advocacy of the Small Business Administration, a 
description of impacts of this rule on small entities, alternatives the 
Department considered related to small entities, and other information 
required by the RFA. The Department includes a short summary of some 
monetized cost and benefit findings made in the FRFA below, but the 
full FRFA will be published along with the Department's FRIA, and it 
will be made available to the public at https://www.justice.gov/crt/disability-rights-section.
---------------------------------------------------------------------------

    \95\ See U.S. Small Bus. Admin., A Guide for Government 
Agencies: How To Comply with the Regulatory Flexibility Act, at 19 
(Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/PWL9-ZTW6].
---------------------------------------------------------------------------

    The Department calculated both costs and benefits to small 
government entities as part of its FRFA. The Department also compared 
costs to revenues for small government entities to evaluate the 
economic impact to these small government entities. The costs for each 
small government entity type and size are generally estimated to be 
below 1 percent of revenues (the one exception is small independent 
community colleges, for which the cost-to-revenue ratio is 1.05 percent 
and 1.10 percent using a 3 percent and 7 percent discount rate, 
respectively),\96\ so the Department does not believe the rule will be 
unduly burdensome or costly for public entities.\97\ These costs 
include one-time costs for familiarization with the requirements of the 
rule, the purchase of software to assist with remediation of web 
content or mobile apps, the time spent testing and remediating web 
content and mobile apps to comply with WCAG 2.1 Level AA, and 
elementary, secondary, and postsecondary education course content 
remediation. Annual costs include recurring costs for software licenses 
and remediation of future content.
---------------------------------------------------------------------------

    \96\ However, the Department notes that revenue for small 
independent community colleges was estimated using the 2012 Census 
of Governments, so revenue for small independent community colleges 
would likely be underestimated if small independent community 
colleges had a greater share of total local government revenue in 
2022 than in 2012. If this were true, the Department expects that 
the cost-to-revenue ratio for small independent community colleges 
would be lower.
    \97\ As a point of reference, the United States Small Business 
Administration advises agencies that a potential indicator that the 
impact of a regulation may be ``significant'' is whether the costs 
exceed 1 percent of the gross revenues of the entities in a 
particular sector, although the threshold may vary based on the 
particular types of entities at issue. See U.S. Small Bus. Admin., A 
Guide for Government Agencies: How To Comply with the Regulatory 
Flexibility Act, at 19 (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/PWL9-ZTW6]; see also U.S. Env't Prot. Agency, EPA's Action 
Dev. Process: Final Guidance for EPA Rulewriters: Regulatory 
Flexibility Act, at 24 (Nov. 2006), 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 ``[p]resumed'' to have ``no significant economic 
impact on a substantial number of small entities'').
---------------------------------------------------------------------------

    Costs to small entities are displayed in Table 13 and Table 14; 
Table 15 contains the costs and revenues per government type and cost-
to-revenue

[[Page 31334]]

ratios using a 3 percent and 7 percent discount rate. Because the 
Department's cost estimates take into account different small entity 
types and sizes, the Department believes the estimates in this analysis 
are generally representative of what smaller entities of each type 
should expect to pay. This is because the Department's methodology 
generally estimated costs based on the sampled baseline accessibility 
to full accessibility in accordance with this rule, which provides a 
precise estimate of the costs within each government type and size. 
While the Department recognizes that there may be variation in costs 
for differently sized small entity types, the Department's estimates 
are generally representative given the precision in our methodology 
within each stratified group. The Department received several comments 
on its estimates for small government entity costs. A summary of those 
comments and the Department's responses are included in the 
accompanying FRFA.

                                                           Table 13--Present Value of Total 10-Year Costs per Entity, 3% Discount Rate
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                    Primary and
                                                                    Number of       Regulatory        Website       Mobile app     Postsecondary     secondary      Third-Party
                   Type of government entity                        entities     familiarization    testing and     testing and       course          course          website          Total
                                                                                                    remediation     remediation     remediation     remediation     remediation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Special district...............................................          38,542             $320         $16,452              $0             N/A             N/A            $790         $17,561
County (small).................................................           2,105              320          52,893          12,022             N/A         $19,949           5,743          90,927
Municipality (small)...........................................          18,729              320         161,722               0             N/A             876           8,957         171,875
Township (small)...............................................          16,097              320         132,260               0             N/A           2,198           7,695         142,472
School district (small)........................................          11,443              320         168,261          27,634             N/A          81,971           7,648         285,834
U.S. Territory (small).........................................               2              320       1,026,731          68,209             N/A             N/A           6,160       1,101,420
Community College..............................................           1,146              320       1,020,862          15,916      $3,617,001             N/A          67,409       4,721,508
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


                                                           Table 14--Present Value of Total 10-Year Costs per Entity, 7% Discount Rate
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                    Primary and
                                                                    Number of       Regulatory        Website       Mobile app     Postsecondary     secondary      Third-Party
                   Type of government entity                        entities     familiarization    testing and     testing and       course          course          website          Total
                                                                                                    remediation     remediation     remediation     remediation     remediation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Special district...............................................          38,542             $308         $14,226              $0             N/A             N/A            $683         $15,217
County (small).................................................           2,105              308          45,992          11,147             N/A         $17,463           4,993          79,904
Municipality (small)...........................................          18,729              308         140,772               0             N/A             767           7,797         149,643
Township (small)...............................................          16,097              308         115,101               0             N/A           1,924           6,697         124,029
School district (small)........................................          11,443              308         146,475          25,624             N/A          71,758           6,658         250,822
U.S. Territory (small).........................................               2              308         894,141          63,264             N/A             N/A           5,365         963,078
Community College..............................................           1,146              308         900,471          15,031      $3,099,245             N/A          59,460       4,074,515
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


                                                          Table 15--Number of Small Entities and Ratio of Costs to Government Revenues
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Average annual  Average annual   Total 10-year   Total 10-year
                                                                     Number of       cost per        cost per     average annual  average annual  Annual revenue  Ratio of costs  Ratio of costs
                         Government type                          small entities    entity (3%)     entity (7%)     costs (3%)      costs (7%)      (millions)      to revenue      to revenue
                                                                                      \a\ \c\         \a\ \c\       (millions)      (millions)                         (3%)            (7%)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
County..........................................................           2,105       $10,659.4       $11,376.5           $22.4           $23.9       $69,686.3            0.03            0.03
Municipality....................................................          18,729        20,149.0        21,305.8           377.4           399.0       197,708.7            0.19            0.20
Township........................................................          16,097        16,666.1        17,616.8           268.3           283.6        59,802.5            0.45            0.47
Special district................................................          38,542         2,058.7         2,166.5            79.3            83.5       298,338.3            0.03            0.03
School district \a\.............................................          11,443        36,023.7        38,347.6           412.2           438.8       354,350.5            0.12            0.12
U.S. territory..................................................               2       129,120.0       137,120.7             0.3             0.3           992.6            0.03            0.03
CCs \b\.........................................................             960       553,504.8       580,119.2           531.4           556.9             N/A             N/A             N/A
CCs--independent................................................             231       553,504.8       580,119.2           127.9           134.0        12,149.5            1.05            1.10
Total (includes all CCs)........................................          87,878        19,245.7        20,324.4         1,691.3         1,786.1             N/A             N/A             N/A
Total (only independent CCs)....................................          87,149        14,776.6        15,641.7         1,287.8         1,363.2       993,028.5            0.13            0.14
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Excludes community colleges, which are costed separately.
\b\ Includes all dependent community college districts and small independent community college districts. Revenue data are not available for the dependent community college districts.
\c\ This cost consists of regulatory familiarization costs, government website testing and remediation costs, mobile app testing and remediation costs, postsecondary education course
  remediation costs, elementary and secondary education course remediation costs, and costs for third-party websites averaged over ten years.

    Though not included in the Department's primary benefits analysis 
due to methodological limitations, the Department estimated time 
savings for State and local government entities from reduced contacts 
(i.e., fewer interactions assisting residents). Improved web 
accessibility will lead some individuals who accessed government 
services via the phone, mail, or in person to begin using the public 
entity's website to complete the task. This will generate time savings 
for government employees. In the Department's FRFA, the Department 
estimates that this will result in time savings to small governments of 
$192.6 million per year once full implementation is complete. Assuming 
lower benefits during the implementation period results in average 
annualized benefits of $162.5 million and $158.1 million to small 
governments using a 3 percent and 7 percent discount rate, 
respectively. The Department notes that these benefits rely on 
assumptions for which the Department could not find reliable data, and 
stresses the uncertainty of these estimates given the strong 
assumptions made.
    The Department explains in greater detail its efforts to minimize 
the economic impact on small entities, as well as estimates of 
regulatory alternatives that the Department considered to reduce those 
impacts in

[[Page 31335]]

the full FRFA accompanying this rule. The FRFA also includes other 
information such as the Department's responses to the comment from the 
Chief Counsel for Advocacy of the Small Business Administration and 
responses to other comments related to the rule's impact on small 
entities. Finally, the Department will issue a small entity compliance 
guide,\98\ which should help public entities better understand their 
obligations under this rule.
---------------------------------------------------------------------------

    \98\ See Public Law 104-121, sec. 212, 110 Stat. 847, 858 (1996) 
(5 U.S.C. 601 note).
---------------------------------------------------------------------------

C. Executive Order 13132: Federalism

    Executive Order 13132 requires executive branch agencies to 
consider whether a proposed rule will have federalism implications.\99\ 
That is, the rulemaking agency must determine whether the rule is 
likely to have substantial direct effects on State and local 
governments, on the relationship between the Federal Government and the 
States and localities, or on the distribution of power and 
responsibilities among the different levels of government. If an agency 
believes that a proposed rule is likely to have federalism 
implications, it must consult with State and local government entity 
officials about how to minimize or eliminate the effects.
---------------------------------------------------------------------------

    \99\ 64 FR 43255 (Aug. 4, 1999).
---------------------------------------------------------------------------

    Title II of the ADA covers State and local government entity 
services, programs, and activities, and, therefore, has federalism 
implications. State and local government entities have been subject to 
the ADA since 1991, and the many State and local government entities 
that receive Federal financial assistance have also been required to 
comply with the requirements of section 504 of the Rehabilitation Act. 
Hence, the ADA and the title II regulation are not novel for State and 
local government entities.
    In crafting this regulation, the Department has been mindful of its 
obligation to meet the objectives of the ADA while also minimizing 
conflicts between State law and Federal interests. Since the Department 
began efforts to issue a web accessibility regulation more than 13 
years ago, the Department has received substantial feedback from State 
and local government entities about the potential impacts of rulemaking 
on this topic. In the NPRM, the Department solicited comments from 
State and local officials and their representative national 
organizations on the rule's effects on State and local government 
entities, and on whether the rule may have direct effects on the 
relationship between the Federal Government and the States, or the 
distribution of power and responsibilities among the various levels of 
government. The Department also attended three listening sessions on 
the NPRM hosted by the SBA's Office of Advocacy, the Association on 
Higher Education and Disability, and the Great Lakes ADA Center at the 
University of Illinois at Chicago, in conjunction with the ADA National 
Network. These sessions were cumulatively attended by more than 500 
members of the public, including representatives from public entities, 
and the Department received feedback during these sessions about the 
potential impacts of the rule on public entities.
    In response to the NPRM, the Department received written comments 
from members of the public about the relationship between this rule and 
State and local laws addressing public entities' web content and mobile 
apps. Some commenters asked questions and made comments about how this 
rule would interact with State laws providing greater or less 
protection for the rights of individuals with disabilities. The 
Department wishes to clarify that, consistent with 42 U.S.C. 12201, 
this final rule will preempt State laws affecting entities subject to 
the ADA only to the extent that those laws provide less protection for 
the rights of individuals with disabilities. This rule does not 
invalidate or limit the remedies, rights, and procedures of any State 
laws that provide greater or equal protection for the rights of 
individuals with disabilities. Moreover, the Department's provision on 
equivalent facilitation at Sec.  35.203 provides that nothing prevents 
a public entity from using designs, methods, or techniques as 
alternatives to those prescribed in this rule, provided that such 
alternatives result in substantially equivalent or greater 
accessibility and usability. Accordingly, for example, if a State law 
requires public entities in that State to conform to WCAG 2.2, nothing 
in this rule would prevent a public entity from complying with that 
standard.
    The Department also received comments asking how this rule will 
interact with State or local laws requiring public entities to post 
certain content online. The Department notes that this rule does not 
change public entities' obligations under State and local laws 
governing the types of content that public entities must provide or 
make available online. Instead, this rule simply requires that when 
public entities provide or make available web content or mobile apps, 
they must ensure that that content and those apps comply with the 
requirements set forth in this rule. This is consistent with the 
remainder of the title II regulatory framework, under which public 
entities have been required to ensure that their services, programs, 
and activities comply with specific accessibility requirements since 
1991, even for services, programs, or activities that are otherwise 
governed by State and local laws.

D. National Technology Transfer and Advancement Act of 1995

    The National Technology Transfer and Advancement Act of 1995 
(``NTTAA'') directs that, as a general matter, all Federal agencies and 
departments shall use technical standards that are developed or adopted 
by voluntary consensus standards bodies, which are private--generally 
nonprofit--organizations that develop technical standards or 
specifications using well-defined procedures that require openness, 
balanced participation among affected interests and groups, fairness 
and due process, and an opportunity for appeal, as a means to carry out 
policy objectives or activities.\100\ In addition, the NTTAA directs 
agencies to consult with voluntary, private sector, consensus standards 
bodies and requires that agencies participate with such bodies in the 
development of technical standards when such participation is in the 
public interest and is compatible with agency and departmental 
missions, authorities, priorities, and budget resources.\101\
---------------------------------------------------------------------------

    \100\ Public Law 104-113, sec. 12(d)(1) (15 U.S.C. 272 note); 
see also Office of Mgmt. and Budget, Circular A-119 (Jan 27, 2016), 
https://www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-119_as_of_1_22.pdf [https://perma.cc/A5LP-X3DB].
    \101\ Public Law 104-113, sec. 12(d)(2).
---------------------------------------------------------------------------

    The Department is adopting WCAG 2.1 Level AA as the accessibility 
standard to apply to web content and mobile apps of title II entities. 
WCAG 2.1 Level AA was developed by W3C, which has been the principal 
international organization involved in developing protocols and 
guidelines for the web. W3C develops a variety of technical standards 
and guidelines, including ones relating to privacy, 
internationalization of technology, and accessibility. Thus, the 
Department is complying with the NTTAA in selecting WCAG 2.1 Level AA 
as the applicable accessibility standard.

E. Plain Language Instructions

    The Department makes every effort to promote clarity and 
transparency in its rulemaking. In any regulation, there is a tension 
between drafting language that is simple and straightforward and

[[Page 31336]]

drafting language that gives full effect to issues of legal 
interpretation. The Department operates a toll-free ADA Information 
Line at (800) 514-0301 (voice); 1-833-610-1264 (TTY) that the public is 
welcome to call for assistance understanding anything in this rule. In 
addition, the ADA.gov website strives to provide information in plain 
language about the law, including this rule. The Department will also 
issue a small entity compliance guide,\102\ which should help public 
entities better understand their obligations under this rule.
---------------------------------------------------------------------------

    \102\ See Public Law 104-121, sec. 212, 110 Stat. 847, 858 
(1996) (5 U.S.C. 601 note).
---------------------------------------------------------------------------

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (``PRA''), no person is 
required to respond to a ``collection of information'' unless the 
agency has obtained a control number from OMB.\103\ This final rule 
does not contain any collections of information as defined by the PRA.
---------------------------------------------------------------------------

    \103\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------

G. Unfunded Mandates Reform Act

    Section 4(2) of the Unfunded Mandates Reform Act of 1995 \104\ 
excludes from coverage under that Act any proposed or final Federal 
regulation that ``establishes or enforces any statutory rights that 
prohibit discrimination on the basis of race, color, religion, sex, 
national origin, age, handicap, or disability.'' Accordingly, this 
rulemaking is not subject to the provisions of the Unfunded Mandates 
Reform Act.
---------------------------------------------------------------------------

    \104\ 2 U.S.C. 1503(2).
---------------------------------------------------------------------------

H. Incorporation by Reference

    As discussed above, through this rule, the Department is adopting 
the internationally recognized accessibility standard for web access, 
WCAG 2.1 Level AA, published in June 2018, as the technical standard 
for web and mobile app accessibility under title II of the ADA. WCAG 
2.1 Level AA, published by W3C WAI, specifies success criteria and 
requirements that make web content more accessible to all users, 
including individuals with disabilities. The Department incorporates 
WCAG 2.1 Level AA by reference into this rule, instead of restating all 
of its requirements verbatim. To the extent there are distinctions 
between WCAG 2.1 Level AA and the standards articulated in this rule, 
the standards articulated in this rule prevail.
    The Department notes that when W3C publishes new versions of WCAG, 
those versions will not be automatically incorporated into this rule. 
Federal agencies do not incorporate by reference into published 
regulations future versions of standards developed by bodies like W3C. 
Federal agencies are required to identify the particular version of a 
standard incorporated by reference in a regulation.\105\ When an 
updated version of a standard is published, an agency must revise its 
regulation if it seeks to incorporate any of the new material.
---------------------------------------------------------------------------

    \105\ See, e.g., 1 CFR 51.1(f) (``Incorporation by reference of 
a publication is limited to the edition of the publication that is 
approved [by the Office of the Federal Register]. Future amendments 
or revisions of the publication are not included.'').
---------------------------------------------------------------------------

    WCAG 2.1 Level AA is reasonably available to interested parties. 
Free copies of WCAG 2.1 Level AA are available online on W3C's website 
at https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. In addition, a copy of WCAG 2.1 Level AA is also 
available for inspection by appointment at the Disability Rights 
Section, Civil Rights Division, U.S. Department of Justice, 150 M St. 
NE, 9th Floor, Washington, DC 20002.

I. Congressional Review Act

    In accordance with the Congressional Review Act, the Department has 
determined that this rule is a major rule as defined by 5 U.S.C. 
804(2). The Department will submit this final rule and other 
appropriate reports to Congress and the Government Accountability 
Office for review.

List of Subjects for 28 CFR Part 35

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

    By the authority vested in me as Attorney General by law, including 
5 U.S.C. 301; 28 U.S.C. 509, 510; sections 201 and 204 of the of the 
Americans with Disabilities Act, Public Law 101-336, as amended, and 
section 506 of the ADA Amendments Act of 2008, Public Law 110-325, and 
for the reasons set forth in appendix D to 28 CFR part 35, chapter I of 
title 28 of the Code of Federal Regulations is amended as follows--

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

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

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

Subpart A--General

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


Sec.  35.104  Definitions.

* * * * *
    Archived web content means web content that--
    (1) Was created before the date the public entity is required to 
comply with subpart H of this part, reproduces paper documents created 
before the date the public entity is required to comply with subpart H, 
or reproduces the contents of other physical media created before the 
date the public entity is required to comply with subpart H;
    (2) Is retained exclusively for reference, research, or 
recordkeeping;
    (3) Is not altered or updated after the date of archiving; and
    (4) Is organized and stored in a dedicated area or areas clearly 
identified as being archived.
* * * * *
    Conventional electronic documents means web content or content in 
mobile apps that is in the following electronic file formats: portable 
document formats (``PDF''), word processor file formats, presentation 
file formats, and spreadsheet file formats.
* * * * *
    Mobile applications (``apps'') means software applications that are 
downloaded and designed to run on mobile devices, such as smartphones 
and tablets.
* * * * *
    Special district government means a public entity--other than a 
county, municipality, township, or independent school district--
authorized by State law to provide one function or a limited number of 
designated functions with sufficient administrative and fiscal autonomy 
to qualify as a separate government and whose population is not 
calculated by the United States Census Bureau in the most recent 
decennial Census or Small Area Income and Poverty Estimates.
* * * * *
    Total population means--
    (1) If a public entity has a population calculated by the United 
States Census Bureau in the most recent decennial Census, the 
population estimate for that public entity as calculated by the United 
States Census Bureau in the most recent decennial Census; or

[[Page 31337]]

    (2) If a public entity is an independent school district, or an 
instrumentality of an independent school district, the population 
estimate for the independent school district as calculated by the 
United States Census Bureau in the most recent Small Area Income and 
Poverty Estimates; or
    (3) If a public entity, other than a special district government or 
an independent school district, does not have a population estimate 
calculated by the United States Census Bureau in the most recent 
decennial Census, but is an instrumentality or a commuter authority of 
one or more State or local governments that do have such a population 
estimate, the combined decennial Census population estimates for any 
State or local governments of which the public entity is an 
instrumentality or commuter authority; or
    (4) For the National Railroad Passenger Corporation, the population 
estimate for the United States as calculated by the United States 
Census Bureau in the most recent decennial Census.
    User agent means any software that retrieves and presents web 
content for users.
* * * * *
    WCAG 2.1 means the Web Content Accessibility Guidelines (``WCAG'') 
2.1, W3C Recommendation 05 June 2018, https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. WCAG 2.1 is 
incorporated by reference elsewhere in this part (see Sec. Sec.  35.200 
and 35.202).
    Web content means the information and sensory experience to be 
communicated to the user by means of a user agent, including code or 
markup that defines the content's structure, presentation, and 
interactions. Examples of web content include text, images, sounds, 
videos, controls, animations, and conventional electronic documents.

0
3. Add subpart H to read as follows:

Subpart H--Web and Mobile Accessibility

Sec.
35.200 Requirements for web and mobile accessibility.
35.201 Exceptions.
35.202 Conforming alternate versions.
35.203 Equivalent facilitation.
35.204 Duties.
35.205 Effect of noncompliance that has a minimal impact on access.
35.206-35.209 [Reserved]


Sec.  35.200  Requirements for web and mobile accessibility.

    (a) General. A public entity shall ensure that the following are 
readily accessible to and usable by individuals with disabilities:
    (1) Web content that a public entity provides or makes available, 
directly or through contractual, licensing, or other arrangements; and
    (2) Mobile apps that a public entity provides or makes available, 
directly or through contractual, licensing, or other arrangements.
    (b) Requirements. (1) Beginning April 24, 2026, a public entity, 
other than a special district government, with a total population of 
50,000 or more shall ensure that the web content and mobile apps that 
the public entity provides or makes available, directly or through 
contractual, licensing, or other arrangements, comply with Level A and 
Level AA success criteria and conformance requirements specified in 
WCAG 2.1, unless the public entity can demonstrate that compliance with 
this section would result in a fundamental alteration in the nature of 
a service, program, or activity or in undue financial and 
administrative burdens.
    (2) Beginning April 26, 2027, a public entity with a total 
population of less than 50,000 or any public entity that is a special 
district government shall ensure that the web content and mobile apps 
that the public entity provides or makes available, directly or through 
contractual, licensing, or other arrangements, comply with Level A and 
Level AA success criteria and conformance requirements specified in 
WCAG 2.1, unless the public entity can demonstrate that compliance with 
this section would result in a fundamental alteration in the nature of 
a service, program, or activity or in undue financial and 
administrative burdens.
    (3) WCAG 2.1 is incorporated by reference into this section with 
the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. All material approved for incorporation by 
reference is available for inspection at the U.S. Department of Justice 
and at the National Archives and Records Administration (``NARA''). 
Contact the U.S. Department of Justice at: Disability Rights Section, 
Civil Rights Division, U.S. Department of Justice, 150 M St. NE, 9th 
Floor, Washington, DC 20002; ADA Information Line: (800) 514-0301 
(voice) or 1-833-610-1264 (TTY); website: www.ada.gov [https://perma.cc/U2V5-78KW]. For information on the availability of this 
material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html [https://perma.cc/9SJ7-D7XZ] or email 
[email protected]. The material may be obtained from the World 
Wide Web Consortium (``W3C'') Web Accessibility Initiative (``WAI''), 
401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-
2711; email: [email protected]; website: https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.


Sec.  35.201  Exceptions.

    The requirements of Sec.  35.200 do not apply to the following:
    (a) Archived web content. Archived web content as defined in Sec.  
35.104.
    (b) Preexisting conventional electronic documents. Conventional 
electronic documents that are available as part of a public entity's 
web content or mobile apps before the date the public entity is 
required to comply with this subpart, unless such documents are 
currently used to apply for, gain access to, or participate in the 
public entity's services, programs, or activities.
    (c) Content posted by a third party. Content posted by a third 
party, unless the third party is posting due to contractual, licensing, 
or other arrangements with the public entity.
    (d) Individualized, password-protected or otherwise secured 
conventional electronic documents. Conventional electronic documents 
that are:
    (1) About a specific individual, their property, or their account; 
and
    (2) Password-protected or otherwise secured.
    (e) Preexisting social media posts. A public entity's social media 
posts that were posted before the date the public entity is required to 
comply with this subpart.


Sec.  35.202  Conforming alternate versions.

    (a) A public entity may use conforming alternate versions of web 
content, as defined by WCAG 2.1, to comply with Sec.  35.200 only where 
it is not possible to make web content directly accessible due to 
technical or legal limitations.
    (b) WCAG 2.1 is incorporated by reference into this section with 
the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. All material approved for incorporation by 
reference is available for inspection at the U.S. Department of Justice 
and at NARA. Contact the U.S. Department of Justice at: Disability 
Rights Section, Civil Rights Division, U.S. Department of Justice, 150 
M St. NE, 9th Floor, Washington, DC 20002; ADA Information Line: (800) 
514-0301 (voice) or 1-833-610-1264 (TTY); website: www.ada.gov [https:/
/

[[Page 31338]]

perma.cc/U2V5-78KW]. For information on the availability of this 
material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html [https://perma.cc/9SJ7-D7XZ] or email 
[email protected]. The material may be obtained from W3C WAI, 401 
Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-2711; 
email: [email protected]; website: https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and 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 compliance with the 
requirements of Sec.  35.200 would result in a fundamental alteration 
in the nature of a service, program, or activity or in undue financial 
and administrative burdens, compliance with Sec.  35.200 is required to 
the extent that it does not result in a fundamental alteration or undue 
financial and administrative burdens. In those circumstances where 
personnel of the public entity believe that the proposed action would 
fundamentally alter the service, program, or activity or would result 
in undue financial and administrative burdens, a public entity has the 
burden of proving that compliance with Sec.  35.200 would result in 
such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the head of a public 
entity or their designee after considering all resources available for 
use in the funding and operation of the service, program, or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action would result in such an 
alteration or such burdens, a public entity shall take any other action 
that would not result in such an alteration or such burdens but would 
nevertheless ensure that individuals with disabilities receive the 
benefits or services provided by the public entity to the maximum 
extent possible.


Sec.  35.205  Effect of noncompliance that has a minimal impact on 
access.

    A public entity that is not in full compliance with the 
requirements of Sec.  35.200(b) will be deemed to have met the 
requirements of Sec.  35.200 in the limited circumstance in which the 
public entity can demonstrate that the noncompliance has such a minimal 
impact on access that it would not affect the ability of individuals 
with disabilities to use the public entity's web content or mobile app 
to do any of the following in a manner that provides substantially 
equivalent timeliness, privacy, independence, and ease of use:
    (a) Access the same information as individuals without 
disabilities;
    (b) Engage in the same interactions as individuals without 
disabilities;
    (c) Conduct the same transactions as individuals without 
disabilities; and
    (d) Otherwise participate in or benefit from the same services, 
programs, and activities as individuals without disabilities.


Sec. Sec.  35.206-35.209  [Reserved]

0
4. Add appendix D to part 35 to read as follows:

Appendix D to Part 35--Guidance to Revisions to ADA Title II Regulation 
on Accessibility of Web Information and Services of State and Local 
Government Entities

    Note:  This appendix contains guidance providing a section-by-
section analysis of the revisions to this part published on April 
24, 2024.

Section-by-Section Analysis and Response to Public Comments

    This appendix provides a detailed description of the 
Department's changes to this part (the title II regulation), the 
reasoning behind those changes, and responses to public comments 
received in connection with the rulemaking. The Department made 
changes to subpart A of this part and added subpart H to this part. 
The section-by-section analysis addresses the changes in the order 
they appear in the title II regulation.

Subpart A--General

Section 35.104 Definitions

``Archived Web Content''

    The Department is including in Sec.  35.104 a definition for 
``archived web content.'' ``Archived web content'' is defined as web 
content that was created before the date the public entity is 
required to comply with subpart H of this part, reproduces paper 
documents created before the date the public entity is required to 
comply with subpart H, or reproduces the contents of other physical 
media created before the date the public entity is required to 
comply with subpart H. Second, the web content is retained 
exclusively for reference, research, or recordkeeping. Third, the 
web content is not altered or updated after the date of archiving. 
Fourth, the web content is organized and stored in a dedicated area 
or areas clearly identified as being archived. The definition is 
meant to capture historic web content that, while outdated or 
superfluous, is maintained unaltered in a dedicated archived area 
for reference, research, or recordkeeping. The term is used in the 
exception set forth in Sec.  35.201(a). The Department provides a 
more detailed explanation of the application of the exception in the 
section-by-section analysis of Sec.  35.201(a).
    The Department made several revisions to the definition of 
``archived web content'' from the notice of proposed rulemaking 
(``NPRM''). The Department added a new part to the definition to 
help clarify the scope of content covered by the definition and 
associated exception. The new part of the definition, the first 
part, specifies that archived web content is limited to three types 
of historic content: web content that was created before the date 
the public entity is required to comply with subpart H of this part; 
web content that reproduces paper documents created before the date 
the public entity is required to comply with subpart H; and web 
content that reproduces the contents of other physical media created 
before the date the public entity is required to comply with subpart 
H.
    Web content that was created before the date a public entity is 
required to comply with subpart H of this part satisfies the first 
part of the definition. In determining the date web content was 
created, the Department does not intend to prohibit public entities 
from making minor adjustments to web content that was initially 
created before the relevant compliance dates specified in Sec.  
35.200(b), such as by redacting personally identifying information 
from web content as necessary before it is posted to an archive, 
even if the adjustments are made after the compliance date. In 
contrast, if a public entity makes substantial changes to web 
content after the date the public entity is required to comply with 
subpart H, such as by adding, updating, or rearranging content 
before it is posted to an archive, the content would likely no 
longer meet the first part of the definition. If the public entity 
later alters or updates the content after it is posted in an 
archive, the content would not meet the third part of the definition 
of ``archived web content'' and it would generally need to conform 
to WCAG 2.1 Level AA.
    Web content that reproduces paper documents or that reproduces 
the contents of other physical media would also satisfy the first 
part of the definition if the paper documents or the contents of the 
other physical media were created before the date the public entity 
is required to comply with subpart H of this part. Paper documents 
include various records that may have been printed, typed, 
handwritten, drawn, painted, or otherwise marked on paper. 
Videotapes, audiotapes, film negatives, CD-ROMs, and DVDs are 
examples of physical media. The Department anticipates that public 
entities may identify or discover historic paper documents or 
historic content contained on physical media that they wish to post 
in an online archive following the time they are required to comply 
with subpart H. For example, a State agricultural agency might move 
to a new building after the date it is required to comply with 
subpart H and discover a box in storage that contains

[[Page 31339]]

hundreds of paper files and photo negatives from 1975 related to 
farms in the state at that time. If the agency reproduced the 
documents and photos from the film negatives as web content, such as 
by scanning the documents and film negatives and saving the scans as 
PDF documents that are made available online, the resulting PDF 
documents would meet the first part of the definition of ``archived 
web content'' because the underlying paper documents and photos were 
created in 1975. The Department reiterates that it does not intend 
to prohibit public entities from making minor adjustments to web 
content before posting it to an archive, such as by redacting 
personally identifying information from paper documents. Therefore, 
the State agricultural agency could likely redact personally 
identifying information about farmers from the scanned PDFs as 
necessary before posting them to its online archive. But, if the 
agency were to make substantial edits to PDFs, such as by adding, 
updating, or rearranging content before posting the PDFs to its 
archive, the PDFs would likely not meet the first part of the 
definition of ``archived web content'' because, depending on the 
circumstances, they may no longer be a reproduction of the historic 
content. In addition, if the agency later altered or updated the 
PDFs after they were posted in an archive, the content would not 
meet the third part of the definition of ``archived web content'' 
and it would generally need to conform to WCAG 2.1 Level AA.
    The Department added the first part to the definition of 
``archived web content'' after considering all the comments it 
received. In the NPRM, the Department sought feedback about the 
archived web content exception, including whether there are 
alternatives to the exception that the Department should consider or 
additional limitations that should be placed on the exception.\1\ 
Commenters suggested various ways to add a time-based limitation to 
the definition or exception. For example, some commenters suggested 
that archived content should be limited to content created or posted 
before a certain date, such as the date a public entity is required 
to comply with subpart H of this part; there should be a certain 
time period before web content can be archived, such as two years 
after the content is created or another time frame based on 
applicable laws related to public records; the exception should 
expire after a certain period of time; or public entities should 
have to remediate archived web content over time, prioritizing 
content that is most important for members of the public. In 
contrast, another commenter suggested that the exception should 
apply to archived web content posted after the date the public 
entity is required to comply with subpart H if the content is of 
historical value and only minimally altered before posting.
---------------------------------------------------------------------------

    \1\ 88 FR 51967.
---------------------------------------------------------------------------

    After reviewing the comments, the Department believes the first 
part of the definition sets an appropriate time-based limitation on 
the scope of content covered by the definition and exception that is 
consistent with the Department's stated intent in the NPRM. In the 
NPRM, the Department explained that the definition of ``archived web 
content'' and the associated exception were intended to cover 
historic content that is outdated or superfluous.\2\ The definition 
in Sec.  35.104, which is based on whether the relevant content was 
created before the date a public entity is required to comply with 
subpart H of this part, is now more aligned with, and better 
situated to implement, the Department's intent to cover historic 
content. The Department believes it is appropriate to include a 
time-based limitation in the definition, rather than to add new 
criteria stating that content must be historic, outdated, or 
superfluous, because it is more straightforward to differentiate 
content based on the date the content was created. Therefore, there 
will be greater predictability for individuals with disabilities and 
public entities as to which content is covered by the exception.
---------------------------------------------------------------------------

    \2\ 88 FR 51966.
---------------------------------------------------------------------------

    The Department declines to establish time-based limitations for 
when content may be posted to an archive or to otherwise set an 
expiration date for the exception. As discussed elsewhere in this 
appendix, the Department recognizes that many public entities will 
need to carefully consider the design and structure of their web 
content before dedicating a certain area or areas for archived 
content, and that, thereafter, it will take time for public entities 
to identify all content that meets the definition of ``archived web 
content'' and post it in the newly created archived area or areas. 
The archived web content exception thus provides public entities 
flexibility as to when they will archive web content, so long as the 
web content was created before the date the public entity was 
required to comply with subpart H of this part or the web content 
reproduces paper documents or the contents of other physical media 
created before the date the public entity was required to comply 
with subpart H. In addition, the Department does not believe it is 
necessary to establish a waiting period before newly created web 
created content can be posted in an archive. New content created 
after the date a public entity is required to comply with subpart H 
will generally not meet the first part of the definition of 
``archived web content.'' In the limited circumstances in which 
newly created web content could meet the first part of the 
definition because it reproduces paper documents or the contents of 
other physical media created before the date the public entity is 
required to comply with subpart H, the Department believes the scope 
of content covered by the exception is sufficiently limited by the 
second part of the definition: whether the content is retained 
exclusively for reference, research, or recordkeeping.
    In addition to adding a new first part to the definition of 
``archived web content,'' the Department made one further change to 
the definition from the NPRM. In the NPRM, what is now the second 
part of the definition pertained to web content that is 
``maintained'' exclusively for reference, research, or 
recordkeeping. The word ``maintained'' is now replaced with 
``retained.'' The revised language is not intended to change or 
limit the coverage of the definition. Rather, the Department 
recognizes that the word ``maintain'' can have multiple relevant 
meanings. In some circumstances, ``maintain'' may mean ``to continue 
in possession'' of property, whereas in other circumstances it might 
mean ``to engage in general repair and upkeep'' of property.\3\ The 
Department uses the word ``maintain'' elsewhere in the title II 
regulation, at Sec.  35.133(a), consistent with the latter 
definition. In contrast, the third part of the definition for 
``archived web content'' specifies that content must not be altered 
or updated after the date of archiving. Such alterations or updates 
could be construed as repair or upkeep, but that is not what the 
Department intended to convey with its use of the word 
``maintained'' in this provision. To avoid confusion about whether a 
public entity can alter or update web content after it is archived, 
the Department instead uses the word ``retained,'' which has a 
definition synonymous with the Department's intended use of 
``maintain'' in the NPRM.\4\
---------------------------------------------------------------------------

    \3\ Maintain, Black's Law Dictionary (11th ed. 2019).
    \4\ See Retain, Black's Law Dictionary (11th ed. 2019) (``To 
hold in possession or under control; to keep and not lose, part 
with, or dismiss.'').
---------------------------------------------------------------------------

    Commenters raised concerns about several aspects of the 
definition of ``archived web content.'' With respect to the second 
part of the definition, commenters stated that the definition does 
not clearly articulate when content is retained exclusively for 
reference, research, or recordkeeping. Commenters stated that the 
definition could be interpreted inconsistently, and it could be 
understood to cover important information that should be accessible. 
For example, commenters were concerned that web content containing 
public entities' past meeting minutes where key decisions were made 
would qualify as archived content, as well as web content containing 
laws, regulations, court decisions, or prior legal interpretations 
that are still relevant. Therefore, commenters suggested that the 
definition should not cover recordkeeping documents, agendas, 
meeting minutes, and other related documents at all. One commenter 
recommended adding to the definition to clarify that it does not 
apply to content a public entity uses to offer a current service, 
program, or activity, and another commenter suggested that content 
should be archived depending on how frequently members of the public 
seek to access the content. One commenter also stated that the 
Department is left with the responsibility to determine whether web 
content is appropriately designated as archived when enforcing 
subpart H of this part in the future, and the commenter believed 
that this enforcement may be insufficient to avoid public entities 
evading their responsibilities under subpart H. Another commenter 
recommended that the Department should conduct random audits to 
determine if public entities are properly designating archived web 
content.
    The Department's revised definition of ``archived web content,'' 
and specifically the new first part of the definition, make clear 
that the definition only pertains to content created before the date 
the public entity is

[[Page 31340]]

required to comply with subpart H of this part. Therefore, new 
content such as agendas, meeting minutes, and other documents 
related to meetings that take place after the public entity is 
required to comply with subpart H would likely not meet all parts of 
the definition of ``archived web content.'' This revision to the 
regulatory text is responsive to comments raising the concern that 
current and newly created content might be erroneously labeled as 
archived based on perceived ambiguity surrounding when content is 
being retained solely for ``reference, research, or recordkeeping.'' 
Given the wide variety of web content that public entities provide 
or make available, the Department does not believe it is advisable 
to add additional, more specific language in the definition about 
what types of content are covered. The Department also believes it 
would be difficult to create a more specific and workable definition 
for ``archived web content'' based on how frequently members of the 
public seek to view certain content given the wide variation in the 
types and sizes of public entities and the volume of their web 
traffic. Whether web content is retained exclusively for reference, 
research, or recordkeeping will depend on the facts of the 
particular situation. Based on some of the examples of web content 
that commenters discussed in connection with the definition, the 
Department notes that if a public entity posts web content that 
identifies the current policies or procedures of the public entity, 
or posts web content containing or interpreting applicable laws or 
regulations related to the public entity, that web content is 
unlikely to be covered by the exception. This is because the content 
is notifying members of the public about their ongoing rights and 
responsibilities. It therefore is not, as the definition requires, 
being used exclusively for reference, research, or recordkeeping.
    Commenters also raised concerns about the fourth part of the 
definition of ``archived web content,'' which requires archived web 
content to be stored in a dedicated area or areas clearly identified 
as being archived. Some commenters did not believe public entities 
should be required to place archived web content in a dedicated area 
or areas clearly identified as being archived in order to be covered 
by the exception at Sec.  35.201(a). Commenters stated that public 
entities should retain flexibility in organizing and storing files 
according to how their web content is designed and structured, and 
it might not be clear to members of the public to look for content 
in an archive depending on the overall makeup of the web content. 
Commenters also stated that it would be burdensome to create an 
archive area, identify web content for the archive, and move the 
content into the archive. One commenter stated that public entities 
might remove content rather than move it to a dedicated archive. 
Commenters instead suggested that the web content itself could be 
individually marked as archived regardless of where it is posted. 
One commenter also requested the Department clarify that the term 
``area'' includes ``websites'' and ``repositories'' where archived 
web content is stored.
    After carefully weighing these comments, the Department has 
decided not to change the fourth part of the definition for 
``archived web content.'' The Department believes storing archived 
web content in a dedicated area or areas clearly identified as being 
archived will result in the greatest predictability for individuals 
with disabilities about which web content they can expect to conform 
to WCAG 2.1 Level AA. However, the Department notes that it did not 
identify specific requirements about the structure of an archived 
area, or how to clearly identify an area as being archived, in order 
to provide public entities greater flexibility when complying with 
subpart H of this part. For example, in some circumstances a public 
entity may wish to create separate web pages or websites to store 
archived web content. In other circumstances, a public entity may 
wish to clearly identify that a specific section on a specific web 
page contains archived web content, even if the web page also 
contains non-archived content in other separate sections. However 
public entities ultimately decide to store archived web content, the 
Department reiterates that predictability for individuals with 
disabilities is paramount. To this end, the label or other 
identification for a dedicated archived area or areas must be clear 
so that individuals with disabilities are able to detect when there 
is content they may not be able to access. Whether a particular 
dedicated area is clearly identified as being archived will, of 
course, depend on the facts of the particular situation. The 
Department also emphasizes that the existence of a dedicated area or 
areas for archived content must not interfere with the accessibility 
of other web content that is not archived.
    Some commenters also recommended an alternative definition of 
``archived web content'' that does not include the second or fourth 
parts of the definition. Commenters proposed that archived web 
content should be defined as web content that (1) was provided or 
made available prior to the effective date of the final rule and (2) 
is not altered or updated after the effective date of the final 
rule. While the Department agrees that a time-based distinction is 
appropriate and has therefore added the first part to the 
definition, the Department does not believe the commenters' approach 
suggested here is advisable because it has the potential to cause a 
significant accessibility gap for individuals with disabilities if 
public entities rely on web content that is not regularly updated or 
changed. Under the commenters' proposed definition, the exception 
for archived web content might cover important web content used for 
reasons other than reference, research, or recordkeeping if the 
content has not been updated or altered. As discussed in more detail 
in the section-by-section analysis of Sec.  35.201(a), the purpose 
of the exception for archived web content is to help public entities 
focus their resources on making accessible the most important 
materials that people use most widely and consistently, rather than 
historic or outdated web content that is only used for reference, 
research, or recordkeeping. Furthermore, as discussed in the 
preceding paragraph, the Department believes the fourth part of the 
definition is necessary to ensure the greatest predictability for 
individuals with disabilities about which web content they can 
expect to conform to WCAG 2.1 Level AA.
    Commenters made other suggestions related to the definition of 
and exception for ``archived web content.'' The Department has 
addressed these comments in the discussion of the Sec.  35.201(a) 
archived web content exception in the section-by-section analysis.

``Conventional Electronic Documents''

    The Department is including in Sec.  35.104 a definition for 
``conventional electronic documents.'' ``Conventional electronic 
documents'' are defined as web content or content in mobile apps 
that is in the following electronic file formats: portable document 
formats, word processor file formats, presentation file formats, and 
spreadsheet file formats. The definition thus provides an exhaustive 
list of electronic file formats that constitute conventional 
electronic documents. Examples of conventional electronic documents 
include: Adobe PDF files (i.e., portable document formats), 
Microsoft Word files (i.e., word processor files), Apple Keynote or 
Microsoft PowerPoint files (i.e., presentation files), and Microsoft 
Excel files (i.e., spreadsheet files). The term ``conventional 
electronic documents'' is used in Sec.  35.201(b) to provide an 
exception for certain such documents that are available as part of a 
public entity's web content or mobile apps before the compliance 
date of subpart H of this part, unless such documents are currently 
used to apply for, gain access to, or participate in the public 
entity's services, programs, or activities. The term is also used in 
Sec.  35.201(d) to provide an exception for certain individualized, 
password-protected or otherwise secured conventional electronic 
documents, and is addressed in more detail in the discussion in the 
section-by-section analysis of Sec.  35.201(b) and (d). The 
definition of ``conventional electronic documents'' covers documents 
created or saved as electronic files that are commonly available in 
an electronic form on public entities' web content and mobile apps 
and that would have been traditionally available as physical printed 
output.
    In the NPRM, the Department asked whether it should craft a more 
flexible definition of ``conventional electronic documents'' instead 
of a definition based on an exhaustive list of file formats.\5\ In 
response, the Department heard a range of views from commenters. 
Some commenters favored a broader and more generalized definition 
instead of an exhaustive list of file formats. For example, 
commenters suggested that the Department could describe the 
properties of conventional electronic documents and provide a non-
exhaustive list of examples of such documents, or the definition 
could focus on the importance of the content contained in a document 
rather than the file format. Some commenters favoring a broader 
definition reasoned that technology evolves rapidly, and the 
exhaustive list of file formats the Department

[[Page 31341]]

identified might not keep pace with technological advancements.
---------------------------------------------------------------------------

    \5\ 88 FR 51958, 51968.
---------------------------------------------------------------------------

    Other commenters preferred the Department's approach of 
identifying an exhaustive list of file formats. Some commenters 
noted that an exhaustive list provides greater clarity and 
predictability, which assists public entities in identifying their 
obligations under subpart H of this part. Some commenters suggested 
that the Department could provide greater clarity by identifying 
specific file types in the regulatory text rather than listing file 
formats (e.g., the Department might specify the Microsoft Word 
``.docx'' file type rather than ``word processor file formats'').
    After considering all the comments, the Department declines to 
change its approach to defining conventional electronic documents. 
The Department expects that a more flexible definition would result 
in less predictability for both public entities and individuals with 
disabilities, especially because the Department does not currently 
have sufficient information about how technology will develop in the 
future. The Department seeks to avoid such uncertainty because the 
definition of ``conventional electronic documents'' sets the scope 
of two exceptions, Sec.  35.201(b) and (d). The Department carefully 
balanced benefits for individuals with disabilities with the 
challenges public entities face in making their web content and 
mobile apps accessible in compliance with subpart H of this part 
when crafting these exceptions, and the Department does not want to 
inadvertently expand or narrow the exceptions with a less 
predictable definition of ``conventional electronic documents.''
    Unlike in the NPRM, the definition of ``conventional electronic 
documents'' does not include database file formats. In the NPRM, the 
Department solicited comments about whether it should add any file 
formats to, or remove any file formats from, the definition of 
``conventional electronic documents.'' While some commenters 
supported keeping the list of file formats in the proposed 
definition as is, the Department also heard a range of views from 
other commenters. Some commenters, including public entities and 
trade groups representing public accommodations, urged the 
Department to add additional file formats to the definition of 
``conventional electronic documents.'' For example, commenters 
recommended adding image files, video files, audio files, and 
electronic books such as EPUB (electronic publications) or DAISY 
(Digital Accessible Information System) files. Commenters noted that 
files in such other formats are commonly made available by public 
entities and they can be burdensome to remediate. Commenters 
questioned whether there is a basis for distinguishing between the 
file formats included in the definition and other file formats not 
included in the definition.
    Other commenters believed the list of file formats included in 
the proposed definition of ``conventional electronic documents'' was 
too broad. A number of disability advocacy groups stated that 
certain document formats included in the definition are generally 
easily made accessible. Therefore, commenters did not believe such 
documents should generally fall within the associated exceptions 
under Sec.  35.201(b) and (d). Some commenters also stated that 
there could be confusion about accessibility requirements for 
database files because database files and some spreadsheet files may 
include data that are not primarily intended to be human-readable. 
The commenters stated that in many cases such content is instead 
intended to be opened and analyzed with other special software 
tools. The commenters pointed out that data that is not primarily 
intended to be human-readable is equally accessible for individuals 
with disabilities and individuals without disabilities, and they 
recommended clarifying that the accessibility requirements do not 
apply to such data.
    Some commenters suggested that certain file formats not included 
in the definition of ``conventional electronic documents,'' such as 
images or videos, may warrant different treatment altogether. For 
example, one public entity stated that it would be better to place 
images and multimedia in a separate and distinct category with a 
separate definition and relevant technical standards where needed to 
improve clarity. In addition, a disability advocacy organization 
stated that images do not need to be included in the definition and 
covered by the associated exceptions because public entities can 
already uniquely exempt this content in some circumstances by 
marking it as decorative, and it is straightforward for public 
entities to add meaningful alternative text to important images and 
photos that are not decorative.
    After considering all the comments, the Department agrees that 
database file formats should not be included in the definition of 
``conventional electronic documents.'' The Department now 
understands that database files may be less commonly available 
through public entities' web content and mobile apps than other 
types of documents. To the extent such files are provided or made 
available by public entities, the Department understands that they 
would not be readable by either individuals with disabilities or 
individuals without disabilities if they only contain data that are 
not primarily intended to be human-readable. Therefore, there would 
be limited accessibility concerns, if any, that fall within the 
scope of subpart H of this part associated with documents that 
contain data that are not primarily intended to be human-readable. 
Accordingly, the Department believes it could be confusing to 
include database file formats in the definition. However, the 
Department notes that while there may be limited accessibility 
concerns, if any, related to database files containing data that are 
not primarily intended to be human-readable, public entities may 
utilize these data to create outputs for web content or mobile apps, 
such as tables, charts, or graphs posted on a web page, and those 
outputs would be covered by subpart H unless they fall into another 
exception.
    The Department declines to make additional changes to the list 
of file formats included in the definition of ``conventional 
electronic documents.'' After reviewing the range of different views 
expressed by commenters, the Department believes the current list 
strikes the appropriate balance between ensuring access for 
individuals with disabilities and feasibility for public entities so 
that they can comply with subpart H of this part. The list included 
in the definition is also aligned with the Department's intention to 
cover documents that public entities commonly make available in 
either an electronic form or that would have been traditionally 
available as physical printed output. If public entities provide and 
make available files in formats not included in the definition, the 
Department notes that those other files may qualify for the 
exception in Sec.  35.201(a) if they meet the definition for 
``archived web content,'' or the exception in Sec.  35.201(e) for 
certain preexisting social media posts if they are covered by that 
exception's description. To the extent those other files are not 
covered by one of the exceptions in Sec.  35.201, the Department 
also notes that public entities would not be required to make 
changes to those files that would result in a fundamental alteration 
in the nature of a service, program, or activity, or impose undue 
financial and administrative burdens, as discussed in the section-
by-section analysis of Sec.  35.204.
    With respect to the comment suggesting that it would be better 
to place images and multimedia in a separate and distinct category 
with a separate definition and relevant technical standards where 
needed to improve clarity, the Department notes that the WCAG 
standards were designed to be ``technology neutral.'' \6\ This means 
that they are designed to be broadly applicable to current and 
future web technologies.\7\ Accordingly, the Department believes 
WCAG 2.1 Level AA is the appropriate standard for other file formats 
not included in the definition of ``conventional electronic 
documents'' because WCAG 2.1 was crafted to address those other file 
formats as well.
---------------------------------------------------------------------------

    \6\ W3C, Introduction to Understanding WCAG, https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU] (June 
20, 2023).
    \7\ See W3C, Understanding Techniques for WCAG Success Criteria, 
https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques 
[https://perma.cc/AMT4-XAAL] (June 20, 2023).
---------------------------------------------------------------------------

    The Department also recognizes that, as some commenters pointed 
out, this part treats conventional electronic documents differently 
than WCAG 2.1, in that conventional electronic documents are 
included in the definition of ``web content'' in Sec.  35.104, while 
WCAG 2.1 does not include those documents in its definition of ``web 
content.'' The Department addresses these comments in its analysis 
of the definition of ``web content.''
    As discussed in the preceding paragraphs, the scope of the 
associated exception for preexisting conventional electronic 
documents, at Sec.  35.201(b), is based on the definition of 
``conventional electronic documents.'' The definition applies to 
conventional electronic documents that are part of a public entity's 
web content or mobile apps. The exception also applies to 
``conventional electronic documents'' that are part of a public 
entity's web content or mobile apps, but only if the documents were 
provided or made available before the date

[[Page 31342]]

the public entity is required to comply with subpart H of this part. 
The Department received a comment indicating there may not be a 
logical connection between conventional electronic documents and 
mobile apps; therefore, according to the comment, the exception 
should not apply to conventional electronic documents that appear in 
mobile apps. However, the Department also received comments from 
disability advocacy organizations and public entities confirming the 
connection between the two technologies and stating that some mobile 
apps allow users to access conventional electronic documents. The 
Department will retain its approach of including ``content in mobile 
apps'' in the definition of ``conventional electronic documents'' 
given that the Department agrees that some mobile apps already use 
conventional electronic documents.

``Mobile Applications (`apps')''

    Section 35.104 defines ``mobile apps'' as software applications 
that are downloaded and designed to run on mobile devices, such as 
smartphones and tablets. For purposes of this part, mobile apps 
include, for example, native apps built for a particular platform 
(e.g., Apple iOS, Google Android) or device and hybrid apps using 
web components inside native apps. This part will retain the 
definition of ``mobile apps'' from the NPRM without revision.
    The Department received very few comments on this definition. 
One commenter noted that the Department does not appear to consider 
other technologies that may use mobile apps such as wearable 
technology. The Department notes that the definition's examples of 
devices that use mobile apps (i.e., smartphones and tablets) is a 
non-exhaustive list. Subpart H of this part applies to all mobile 
apps that a public entity provides or makes available, regardless of 
the devices on which the apps are used. The definition therefore may 
include mobile apps used on wearable technology. Accordingly, the 
proposed rule's definition of ``mobile apps'' will remain unchanged 
in this part.

``Special District Government''

    The Department has added a definition for ``special district 
government.'' The term ``special district government'' is used in 
Sec.  35.200(b) and is defined in Sec.  35.104 to mean a public 
entity--other than a county, municipality, township, or independent 
school district--authorized by State law to provide one function or 
a limited number of designated functions with sufficient 
administrative and fiscal autonomy to qualify as a separate 
government and whose population is not calculated by the United 
States Census Bureau in the most recent decennial Census or Small 
Area Income and Poverty Estimates. Because special district 
governments do not have populations calculated by the United States 
Census Bureau and are not necessarily affiliated with public 
entities that do have such populations, 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 entity that may operate with administrative and fiscal 
independence. This definition is drawn in part from the U.S. Census 
Bureau definition \8\ for purposes of setting a compliance time 
frame for a subset of public entities. It is not meant to alter the 
existing definition of ``public entity'' in Sec.  35.104 in any way. 
The Department made one grammatical correction in this part to 
remove an extra ``or'' from the definition as proposed in the 
NPRM.\9\ However, the substance of the definition is unchanged from 
the Department's proposal in the NPRM.
---------------------------------------------------------------------------

    \8\ See U.S. Census Bureau, Special District Governments, 
https://www.census.gov/glossary/?term=Special+district+governments 
[https://perma.cc/8V43-KKL9] (last visited Feb. 26, 2024).
    \9\ 88 FR 52018.
---------------------------------------------------------------------------

``Total Population''

    Section 35.200 provides the dates by which public entities must 
begin complying with the technical standard. The compliance dates 
are generally based on a public entity's total population, as 
defined in this part. The Department has added a definition for 
``total population'' in Sec.  35.104. If a public entity has a 
population calculated by the United States Census Bureau in the most 
recent decennial Census, the public entity's total population as 
defined in this part is the population estimate for that public 
entity as calculated by the United States Census Bureau in the most 
recent decennial Census. If a public entity is an independent school 
district, or an instrumentality of an independent school district, 
the entity's total population as defined in this part is the 
population estimate for the independent school district as 
calculated by the United States Census Bureau in the most recent 
Small Area Income and Poverty Estimates. If a public entity, other 
than a special district government or an independent school 
district, does not have a population estimate calculated by the 
United States Census Bureau in the most recent decennial Census, but 
is an instrumentality or a commuter authority of one or more State 
or local governments that do have such a population estimate, the 
entity's total population as defined in this part is the combined 
decennial Census population estimates for any State or local 
governments of which the public entity is an instrumentality or 
commuter authority. The total population for the National Railroad 
Passenger Corporation as defined in this part is the population 
estimate for the United States as calculated by the United States 
Census Bureau in the most recent decennial Census. The terminology 
used in the definition of ``total population'' draws from the 
terminology used in the definition of ``public entity'' in title II 
of the ADA \10\ and the existing title II regulation,\11\ and all 
public entities covered under title II of the ADA are covered by 
subpart H of this part. This part does not provide a method for 
calculating the total population of special district governments, 
because Sec.  35.200 provides that all special district governments 
have three years following the publication of the final rule to 
begin complying with the technical standard, without reference to 
their population.
---------------------------------------------------------------------------

    \10\ 42 U.S.C. 12131(1).
    \11\ Section 35.104.
---------------------------------------------------------------------------

    The regulatory text of this definition has been revised from the 
NPRM for clarity. The regulatory text of this definition previously 
provided that ``total population'' generally meant the population 
estimate for a public entity as calculated by the United States 
Census Bureau in the most recent decennial Census. Because the 
decennial Census does not include population estimates for public 
entities that are independent school districts, the regulatory text 
in the NPRM made clear that for independent school districts, 
``total population'' would be calculated by reference to the 
population estimates as calculated by the United States Census 
Bureau in the most recent Small Area Income and Poverty Estimates. 
In recognition of the fact that some public entities do not have 
population estimates calculated by the United States Census Bureau, 
the preamble to the NPRM stated that if a public entity does not 
have a specific Census-defined population, 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.\12\ Although the preamble included this clarification, the 
Department received feedback that the regulatory text of this 
definition did not make clear how to calculate total population for 
public entities that do not have populations calculated by the 
United States Census Bureau. Accordingly, the Department has revised 
the regulatory text of the definition for clarity.
---------------------------------------------------------------------------

    \12\ 88 FR 51948, 51949, 51958 (Aug. 4, 2023).
---------------------------------------------------------------------------

    The revised regulatory text of this definition retains the 
language from the definition in the NPRM with respect to public 
entities that have populations calculated in the decennial Census 
and independent school districts that have populations calculated in 
the Small Area Income and Poverty Estimates. However, the revised 
regulatory text of this definition incorporates the approach 
described in the preamble of the NPRM with respect to how public 
entities that do not have populations calculated by the United 
States Census Bureau in the most recent decennial Census can 
determine their total populations as defined in this part. As the 
revised definition states, if a public entity, other than a special 
district government or independent school district, does not have a 
population estimate calculated by the United States Census Bureau in 
the most recent decennial Census, but is an instrumentality or a 
commuter authority of one or more State or local governments that do 
have such a population estimate, the total population for the public 
entity is determined by reference to the combined decennial Census 
population estimates for any State or local governments of which the 
public entity is an instrumentality or commuter authority. For 
example, the total population of a county library is the population 
of the county of which the library is an instrumentality. The 
revised definition also makes clear that if a public entity is an 
instrumentality of an independent school district, the 
instrumentality's population is determined

[[Page 31343]]

by reference to the population estimate for the independent school 
district as calculated in the most recent Small Area Income and 
Poverty Estimates. The revised definition also states that the total 
population of the National Railroad Passenger Corporation is 
determined by reference to the population estimate for the United 
States as calculated by the United States Census Bureau in the most 
recent decennial Census. The revisions to the definition do not 
change the scope of this part or the time frames that public 
entities have to comply with subpart H of this part; they simply 
provide additional clarity for public entities on how to determine 
which compliance time frame applies. The Department expects that 
these changes will help public entities better understand the time 
frame in which they must begin complying with the technical 
standard. Further discussion of this topic, including discussion of 
comments, can be found in the section-by-section analysis of Sec.  
35.200, under the heading ``Requirements by Entity Size.''

``User Agent''

    The Department has added a definition for ``user agent.'' The 
definition exactly matches the definition of ``user agent'' in WCAG 
2.1.\13\ WCAG 2.1 includes an accompanying illustration, which 
clarifies that the definition of ``user agent'' means web browsers, 
media players, plug-ins, and other programs--including assistive 
technologies--that help in retrieving, rendering, and interacting 
with web content.\14\
---------------------------------------------------------------------------

    \13\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1 
(June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and 
https://perma.cc/UB8A-GG2F.
    \14\ Id.
---------------------------------------------------------------------------

    The Department added this definition to this part to ensure 
clarity of the term ``user agent,'' now that the term appears in the 
definition of ``web content.'' As the Department explains further in 
discussing the definition of ``web content'' in this section-by-
section analysis, the Department has more closely aligned the 
definition of ``web content'' in this part with the definition in 
WCAG 2.1. Because this change introduced the term ``user agent'' 
into the title II regulation, and the Department does not believe 
this is a commonly understood term, the Department has added the 
definition of ``user agent'' provided in WCAG 2.1 to this part. One 
commenter suggested that the Department add this definition in this 
part, and the Department also believes that adding this definition 
in this part is consistent with the suggestions of many commenters 
who proposed aligning the definition of ``web content'' with the 
definition in WCAG 2.1, as explained further in the following 
section.

``WCAG 2.1''

    The Department is including 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 2.1''). W3C, 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/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. WCAG 2.1 is discussed in more detail in the section-by-section 
analysis of Sec.  35.200.

``Web Content''

    Section 35.104 defines ``web content'' as the information and 
sensory experience to be communicated to the user by means of a user 
agent, including code or markup that defines the content's 
structure, presentation, and interactions. Examples of web content 
include text, images, sounds, videos, controls, animations, and 
conventional electronic documents. The first sentence of the 
Department's definition of ``web content'' is aligned with the 
definition of ``web content'' in WCAG 2.1.\15\ The second sentence 
of the definition gives examples of some of the different types of 
information and experiences available on the web. However, these 
examples are intended to illustrate the definition and not be 
exhaustive. The Department also notes that subpart H of this part 
covers the accessibility of public entities' web content regardless 
of whether the web content is viewed on desktop computers, laptops, 
smartphones, or elsewhere.
---------------------------------------------------------------------------

    \15\ See W3C, Web Content Accessibility Guidelines 2.1 (June 5, 
2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/and https://perma.cc/UB8A-GG2F (see definition of ``content (Web content)''). 
WCAG 2.1 defines ``user agent'' as ``any software that retrieves and 
presents Web content for users,'' such as web browsers, media 
players, plug-ins, and assistive technologies. See W3C, Web Content 
Accessibility Guidelines 2.1 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F (see 
definition of ``user agent'').
---------------------------------------------------------------------------

    The Department slightly revised its definition from the proposed 
definition in the NPRM, which was based on the WCAG 2.1 definition 
but was slightly less technical and intended to be more easily 
understood by the public generally. The Department's proposed rule 
defined ``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.\16\ In this part, the first sentence of this 
definition is revised to provide that web content is the information 
and sensory experience to be communicated to the user by means of a 
user agent, including code or markup that defines the content's 
structure, presentation, and interactions. The sentence is now 
aligned with the WCAG 2.1 definition of web content (sometimes 
referred to as ``content'' by WCAG).\17\ The Department has also 
added a definition of ``user agent'' in this part, as explained in 
the section-by-section analysis.
---------------------------------------------------------------------------

    \16\ 88 FR 52018.
    \17\ See W3C, Web Content Accessibility Guidelines 2.1 (June 5, 
2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.
---------------------------------------------------------------------------

    The Department decided to more closely align the definition of 
``web content'' in this part with the definition in WCAG 2.1 to 
avoid confusion, to ensure consistency in the application of WCAG 
2.1, and to assist technical experts in implementing subpart H of 
this part. Consistent with the suggestion of several commenters, the 
Department believes this approach minimizes possible inadvertent 
conflicts between the type of content covered by the Department's 
regulatory text and the content covered by WCAG 2.1. Further, the 
Department believes it is prudent to more closely align these 
definitions because the task of identifying relevant content to be 
made accessible will often fall on technical experts. The Department 
believes technical experts will be familiar with the definition of 
``web content'' in WCAG 2.1, and creating a modified definition will 
unnecessarily increase effort by requiring technical experts to 
familiarize themselves with a modified definition. The Department 
also understands that there are likely publicly available 
accessibility guidance documents and toolkits on the WCAG 2.1 
definition that could be useful to public entities, and using a 
different definition of ``web content'' could call into question 
public entities' ability to rely on those tools, which would create 
unnecessary work for public entities. To incorporate this change, 
the Department removed language from the proposed rule addressing 
the encoding that defines the web content's structure, presentation, 
and interactions, because the Department believed the more prudent 
approach was to more closely align this definition with the 
definition in WCAG 2.1. However, the Department maintained in its 
final definition an additional sentence providing examples of web 
content to aid in the public's understanding of this definition. 
This may be particularly useful for members of the public without a 
technical background.
    The Department received many comments supporting the 
Department's proposed definition of ``web content'' from public 
entities, disability advocates, individuals, and technical and other 
organizations. Many of these commenters indicated that the 
Department's definition was sufficiently generic and familiar to the 
public. The Department believes that the definition in this part 
aligns with these comments, since it is intended to mirror the 
definition in WCAG 2.1 and cover the same types of content.
    Some commenters raised concerns that the scope of the definition 
should be broader, arguing that the definition should be extended to 
include ``closed'' systems such as kiosks, printers, and point-of-
sale devices. Another organization mistakenly believed that the 
examples listed in the definition of ``web content'' were meant to 
be exhaustive. The Department wishes to clarify that this list is 
not intended to be exhaustive. The Department declines to broaden 
the definition of ``web content'' beyond the definition in this part 
because the Department seeks in its rulemaking to be responsive to 
calls from the public for the Department to provide certainty by 
adopting a technical standard State and local government entities 
must adhere to for their web content and mobile apps. The Department 
thus is limiting its rulemaking

[[Page 31344]]

effort to web content and mobile apps. However, the Department notes 
that State and local government entities have existing accessibility 
obligations with respect to services, programs, or activities 
offered through other types of technology under title II of the 
Americans with Disabilities Act (``ADA'') or other laws.\18\ For 
example, ``closed'' systems \19\ may need to be made accessible in 
accordance with the existing title II regulation, as public entities 
have ongoing responsibilities to ensure effective communication, 
among other requirements.
---------------------------------------------------------------------------

    \18\ See Sec. Sec.  35.130(b)(1)(ii) and (b)(7) and 35.160.
    \19\ A closed system, or ``closed functionality,'' means that 
users cannot attach assistive technology to the system to make the 
content accessible, such as with a travel kiosk. See W3C, WCAG2ICT 
Overview, https://www.w3.org/WAI/standards-guidelines/wcag/non-web-ict/ [https://perma.cc/XRL6-6Q9Y] (Feb. 2, 2024).
---------------------------------------------------------------------------

    Some commenters also suggested that the Department narrow the 
definition of ``web content.'' A few of these comments came from 
trade groups representing public accommodations, and they argued 
that the scope of the proposed definition would extend to content 
the public entity cannot control or is unable to make accessible due 
to other challenges. These commenters also argued that the costs of 
making content accessible would be extremely high for the range of 
content covered by the definition of ``web content.'' The Department 
believes the framework in this part appropriately balances the 
considerations implicated by this definition. Public entities can 
avail themselves of several exceptions that are intended to reduce 
the costs of making content accessible in some cases (such as the 
preexisting social media posts exception in Sec.  35.201(e)), and to 
address instances where public entities truly do not have control 
over content (such as the third-party-posted content exception in 
Sec.  35.201(c)). Further, public entities will be able to rely on 
the fundamental alteration and undue burdens limitations set out in 
Sec.  35.204 where they can satisfy the requirements of those 
limitations, and public entities may also be able to use conforming 
alternate versions under Sec.  35.202 where it is not possible to 
make web content directly accessible due to technical or legal 
limitations. The Department believes this approach appropriately 
balances the costs of compliance with the significant benefits to 
individuals with disabilities of being able to access the services, 
programs, and activities of their State and local government 
entities.
    Some disability advocacy groups suggested that the Department 
modify the definition slightly, such as by providing for 
``information, sensory or otherwise'' in lieu of ``information and 
sensory experience.'' The Department believes the prudent approach 
is to closely mirror the definition of ``web content'' in WCAG 2.1 
to avoid confusion that could ensue from other differences between 
the two definitions. While the Department appreciates that there may 
be questions about the application of the definition to specific 
factual contexts, the Department believes the definition in WCAG 2.1 
is sufficiently clear. The Department can provide further guidance 
on the application of this definition as needed.
    Some commenters argued that the non-exhaustive list of examples 
of web content in this part would include web content that would not 
be considered web content under WCAG 2.1. In particular, some 
commenters noted that conventional electronic documents are not web 
content under WCAG 2.1 because they are not opened or presented 
through a user agent. Those commenters said that the Department's 
definition of ``web content'' should not include files such as word 
processor documents, presentation documents, and spreadsheets, even 
if they are downloaded from the web. The commenters further 
suggested that this part should split consideration of electronic 
document files from web content, similar to the approach they stated 
is used in the section 508 standards.\20\ The Department also 
reviewed suggestions from commenters that the Department rely on 
WCAG guidance explaining how to apply WCAG to non-web information 
and communications technologies \21\ and the ISO 14289-1 (``PDF/UA-
1'') \22\ standard related to PDF files. However, other commenters 
argued that when electronic documents are viewed in the browser 
window, they generally are considered web content and should thus be 
held to the same standard as other types of web content. Those 
commenters agreed with the Department's decision to include 
conventional electronic documents within the definition of ``web 
content,'' particularly when the version posted is not open for 
editing by the public.
---------------------------------------------------------------------------

    \20\ See 29 U.S.C. 794d. A discussion of the section 508 
standards is included later in the section-by-section analysis, in 
``WCAG 2.0 and Section 508 of the Rehabilitation Act.''
    \21\ W3C, WCAG2ICT Overview, https://www.w3.org/WAI/standards-guidelines/wcag/non-web-ict/ [https://perma.cc/XRL6-6Q9Y] (Feb. 2, 
2024).
    \22\ International Organization for Standardization, ISO 14289-
1:2014; Document management applications; Electronic document file 
format enhancement for accessibility; Part 1: Use of ISO 32000-1 
(PDF/UA-1) (Dec. 2014), https://www.iso.org/standard/64599.html 
[https://perma.cc/S53A-Q3Y2]. One commenter also referred to PDF/UA-
2; however, the Department's understanding is that PDF/UA-2 is still 
under development. International Organization for Standardization, 
ISO 14289-2; Document management applications; Electronic document 
file format enhancement for accessibility; Part 2: Use of ISO 32000-
2 (PDF/UA-2), https://www.iso.org/standard/82278.html [https://perma.cc/3W5L-UJ7J].
---------------------------------------------------------------------------

    The Department has considered commenters' views and determined 
that conventional electronic documents should still be considered 
web content for purposes of this part. The Department has found that 
public entities frequently provide their services, programs, or 
activities using conventional electronic documents, and the 
Department believes this approach will enhance those documents' 
accessibility, improving access for individuals with disabilities. 
The Department understands commenters' concerns to mean that, in 
applying WCAG 2.1 to conventional electronic documents, not all 
success criteria may be applicable directly as written. Although the 
Department understands that some WCAG 2.1 Level AA success criteria 
may not apply as written to conventional electronic documents,\23\ 
when public entities provide or make available web content and 
content in mobile apps, public entities generally must ensure 
conformance to the WCAG 2.1 Level AA success criteria to the extent 
those criteria can be applied. In determining how to make 
conventional electronic documents conform to WCAG 2.1 Level AA, 
public entities may find it helpful to consult W3C's guidance on 
non-web information and communications technology, which explains 
how the WCAG success criteria can be applied to conventional 
electronic documents. The Department believes the compliance dates 
discussed in Sec.  35.200(b) will provide public entities sufficient 
time to understand how WCAG 2.1 Level AA applies to their 
conventional electronic documents. The Department will continue to 
monitor developments in the accessibility of conventional electronic 
documents and issue further guidance as appropriate.
---------------------------------------------------------------------------

    \23\ W3C explains in its guidance on non-web information and 
communications technology that ``[w]hile WCAG 2.2 was designed to be 
technology-neutral, it assumes the presence of a `user agent' such 
as a browser, media player, or assistive technology as a means to 
access web content. Therefore, the application of WCAG 2.2 to 
documents and software in non-web contexts require[s] some 
interpretation in order to determine how the intent of each WCAG 2.2 
success criterion could be met in these different contexts of use.'' 
W3C, Guidance on Applying WCAG 2.2 to Non-Web Information and 
Communications Technologies (WCAG2ICT): Group Draft Note (Aug. 15, 
2023), https://www.w3.org/TR/wcag2ict-22/ [https://perma.cc/2PYA-4RFH]. While this quotation addresses WCAG 2.2, the beginning of the 
guidance notes that ``the current draft includes guidance for WCAG 
2.1 success criteria.'' Id.
---------------------------------------------------------------------------

    Finally, several commenters asked whether this definition would 
cover internal, non-public applications, such as web content used 
solely by employees. The Department reiterates that subpart H of 
this part includes requirements for the web content and mobile apps 
provided or made available by public entities within the scope of 
title II. While subpart H is not promulgated under title I of the 
ADA, it is important to note that compliance with subpart H will not 
relieve title II entities of their distinct employment-related 
obligations under title I of the ADA, which could include, for 
example, accommodations for a web developer with a disability 
working for a public entity.

Subpart H--Web and Mobile Accessibility

    The Department is creating a new subpart in its title II 
regulation. Subpart H of this part addresses the accessibility of 
public entities' web content and mobile apps.

Section 35.200 Requirements for Web and Mobile Accessibility

General

    Section 35.200 sets forth specific requirements for the 
accessibility of web content and mobile apps of public entities. 
Section 35.200(a) requires a public entity to ensure that the 
following are readily accessible to and usable by individuals with 
disabilities: (1) web content that a public entity provides or makes 
available, directly

[[Page 31345]]

or through contractual, licensing, or other arrangements; and (2) 
mobile apps that a public entity provides or makes available, 
directly or through contractual, licensing, or other arrangements. 
As detailed in this section, the remainder of Sec.  35.200 sets 
forth the specific standards that public entities are required to 
meet to make their web content and mobile apps accessible and the 
timelines for compliance.

Web Content and Mobile Apps That Public Entities Provide or Make 
Available

    Section 35.200(a) identifies the scope of content covered by 
subpart H of this part. Section 35.200(a)(1) and (2) applies to web 
content and mobile apps that a public entity provides or makes 
available. The Department intends the scope of Sec.  35.200 to be 
consistent with the ``Application'' section of the existing title II 
regulation at Sec.  35.102, which states that this part applies to 
all services, programs, and activities provided or made available by 
public entities. The Department therefore made minor changes to the 
language of Sec.  35.200(a)(1) and (2) to make the section more 
consistent with Sec.  35.102. In the NPRM, Sec.  35.200(a)(1) and 
(2) applied to web content and 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.\24\ The Department 
revised Sec.  35.200(a)(1) and (2) to apply to web content and 
mobile apps that a public entity provides or makes available. The 
Department also made corresponding revisions to the language of 
Sec.  35.200(b)(1) and (2). The Department expects that public 
entities will be familiar with the revised language used in Sec.  
35.200(a) because it is similar to the language used in Sec.  
35.102, and that such familiarity and consistency will result in 
less confusion and more predictable access for individuals with 
disabilities to the web content and mobile apps of public entities. 
The Department notes that the revised language does not change or 
limit the coverage of subpart H as compared to the NPRM. Both the 
revised language and the NPRM are consistent with the broad coverage 
of Sec.  35.102.
---------------------------------------------------------------------------

    \24\ 88 FR 52018.
---------------------------------------------------------------------------

Contractual, Licensing, and Other Arrangements

    The general requirements in subpart H of this part apply to web 
content or mobile apps that a public entity provides or makes 
available directly, as well as those the public entity provides or 
makes available ``through contractual, licensing, or other 
arrangements.'' The Department expects that the phrase ``directly or 
through contractual, licensing, or other arrangements'' will be 
familiar to public entities because it comes from existing 
regulatory language in title II of the ADA. The section on general 
prohibitions against discrimination in the existing title II 
regulation says that a public entity, in providing any aid, benefit, 
or service, may not, directly or through contractual, licensing, or 
other arrangements, on the basis of disability engage in various 
forms of discrimination.\25\ The Department intentionally used the 
same phrasing in subpart H because here too, where public entities 
act through third parties using contractual, licensing, or other 
arrangements, they are not relieved of their obligations under 
subpart H. For example, when public educational institutions arrange 
for third parties to post educational content on their behalf, 
public entities will still be responsible for the accessibility of 
that content under the ADA.
---------------------------------------------------------------------------

    \25\ Section 35.130(b)(1) and (3). See also Sec.  35.152(a) 
(describing requirements for jails, detention and correctional 
facilities, and community correctional facilities).
---------------------------------------------------------------------------

    Further, the Department emphasizes that the phrase ``provides or 
makes available'' in Sec.  35.200 is not intended to mean that Sec.  
35.200 only applies when the public entity creates or owns the web 
content or mobile app. The plain meaning of ``make available'' 
includes situations where a public entity relies on a third party to 
operate or furnish content. Section 35.200 means that public 
entities provide or make available web content and mobile apps even 
where public entities do not design or own the web content or mobile 
app, if there is a contractual, licensing, or other arrangement 
through which the public entity uses the web content or mobile app 
to provide a service, program, or activity. For example, even when a 
city does not design, create, or own a mobile app allowing the 
public to pay for public parking, when a contractual, licensing, or 
other arrangement exists between the city and the mobile app 
enabling the public to use the mobile app to pay for parking in the 
city, the mobile app is covered under Sec.  35.200. This is because 
the public entity has contracted with the mobile app to provide 
access to the public entity's service, program, or activity (i.e., 
public parking) using a mobile app. The Department believes this 
approach will be familiar to public entities, as it is consistent 
with the existing framework in title II of the ADA.\26\
---------------------------------------------------------------------------

    \26\ See Sec.  35.130(b)(1) and (3).
---------------------------------------------------------------------------

    The Department received many public comments in response to the 
NPRM expressing confusion about the extent to which content created 
by third parties on behalf of public entities must be made 
accessible. Many commenters pointed out that public entities 
frequently enter into contracts with vendors or other third parties 
to produce web content and mobile apps, such as for websites and 
apps used to pay fines and parking fees. Commenters were 
particularly concerned because the NPRM contained exceptions for 
third-party content, which they thought could indicate that the 
Department did not intend to cover any content created by third 
parties even when it was created on behalf of public entities. 
Commenters urged the Department to make clear in regulatory text 
that content created or provided by third-party entities is still 
covered by this part where those third parties are acting on behalf 
of a public entity.
    The Department agrees with these commenters' concerns, so the 
Department has modified the language in subpart H of this part to 
make clear that the general requirements for web content and mobile 
app accessibility apply when the public entity provides or makes 
available web content or mobile apps directly or through 
contractual, licensing, or other arrangements. The Department 
inserted this language in Sec.  35.200(a)(1) and (2) and (b)(1) and 
(2). The Department notes that this modification does not change the 
coverage of Sec.  35.200 from the NPRM. The Department clarified in 
the NPRM that throughout the proposal, 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. The Department clarified that 
such content would also be covered by the proposed rule.\27\ The 
language the Department added to the general requirements provisions 
in Sec.  35.200(a)(1) and (2) and (b)(1) and (2) does not change the 
meaning of the provisions, but rather ensures clarity about public 
entities' obligations when they are acting through a third party, 
such as when they contract with a vendor.
---------------------------------------------------------------------------

    \27\ 88 FR 51957.
---------------------------------------------------------------------------

    Many commenters stated their concern that public entities lack 
control over third-party content, even where they contract with 
third parties to provide that content. These commenters, generally 
from public entities and trade groups representing public 
accommodations, argued that seeking to obtain accessible third-party 
content provided on behalf of public entities would be challenging. 
Some of these commenters said that in theory this type of content 
could be controlled by procurement, but that this has not been 
realized in practice. While the Department is sympathetic to these 
concerns, the Department also received many comments from disability 
advocates and individuals with disabilities pointing out the crucial 
nature of services provided by third parties on behalf of public 
entities. For example, some disability advocates argued that State 
and local government entities increasingly rely on third parties to 
provide services such as the mapping of zoning areas and city 
council districts, fine payment systems, applications for reserving 
and paying for public parking, websites to search for available 
public housing, and many other examples. The Department believes 
individuals with disabilities should not be excluded from these 
government services because the services are inaccessible and are 
being provided by third parties on behalf of a public entity, rather 
than being provided directly by the public entity. Indeed, public 
entities have a responsibility to comply with their ADA obligations 
even when their services, programs, or activities are being offered 
through contractors. Further, while the Department understands the 
concerns raised by commenters that current market options make it 
challenging for public entities to procure accessible services, the 
Department expects that options for accessible third-party services 
will grow in response to subpart H of this part. The Department 
believes that more accessible options will be readily available by 
the time public entities are required to comply with subpart H, 
which will make it less difficult for public entities to procure 
accessible

[[Page 31346]]

services from contractors. The Department also notes that public 
entities will be able to rely on the fundamental alteration and 
undue burdens limitations in this part in Sec.  35.204 where they 
can satisfy the requirements of that provision.
    Further, the Department believes that when public entities 
engage in contractual, licensing, or other arrangements with third 
parties to provide or make available web content and mobile apps, 
public entities can choose to work with providers who can ensure 
accessibility, and public entities can also include contract 
stipulations that ensure accessibility in third-party services. This 
is consistent with the existing obligations public entities face in 
other title II contexts where they choose to contract, license, or 
otherwise arrange with third parties to provide services, programs, 
or activities. The Department acknowledges that some commenters 
argued that they face limited existing options in procurement for 
accessible third-party services. However, where such circumstances 
warrant, public entities can rely on the undue burdens provision 
when they can satisfy its requirements. In addition, the Department 
expects that options for procuring accessible third-party services 
will grow in response to its rulemaking.

Background on WCAG

    Since 1994, W3C has been the principal international 
organization involved in developing protocols and guidelines for the 
web.\28\ W3C develops a variety of voluntary technical standards and 
guidelines, including ones relating to privacy, internationalization 
of technology, and--relevant here--accessibility. W3C's Web 
Accessibility Initiative (``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.\29\
---------------------------------------------------------------------------

    \28\ W3C, About Us, https://www.w3.org/about/ [https://perma.cc/TQ2W-T377].
    \29\ The Department received one comment arguing that the 
process by which WCAG is developed is not equitable or inclusive of 
members of the disability community. The Department received another 
comment commending the Department for adopting WCAG as the technical 
standard and noting that WCAG is developed through an open, 
transparent, multi-stakeholder consensus process. The Department 
carefully considered these comments and concluded that it is 
appropriate to adopt a consensus standard promulgated by W3C with 
input from various stakeholders, which is also consistent with the 
NTTAA. Information from W3C about its process for developing 
standards is available at W3C, Web Accessibility Initiative, How WAI 
Develops Accessibility Standards Through the W3C Process: Milestones 
and Opportunities To Contribute (Sept. 2006), https://www.w3.org/WAI/standards-guidelines/w3c-process/ [https://perma.cc/3BED-RCJP] 
(Nov. 2, 2020).
---------------------------------------------------------------------------

    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.\30\ WCAG 2.1 was published in June 2018, and is available at 
https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.\31\ WCAG 2.1 is built on and is backwards 
compatible with WCAG 2.0.\32\ In fact, 38 of the 50 Level A and AA 
success criteria in WCAG 2.1 are also included in WCAG 2.0.\33\
---------------------------------------------------------------------------

    \30\ W3C, Web Content 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].
    \31\ The WAI also published some revisions to WCAG 2.1 on 
September 21, 2023. W3C, Web Content Accessibility Guidelines (WCAG) 
2.1 (Sept. 21, 2023), https://www.w3.org/TR/WCAG21/ [https://perma.cc/4VF7-NF5F]; see infra note 47. The WAI also published a 
working draft of WCAG 3.0 in December 2021. W3C, W3C Accessibility 
Guidelines (WCAG) 3.0, https://www.w3.org/TR/wcag-3.0/ (July 24, 
2023) [https://perma.cc/7FPQ-EEJ7].
    \32\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 0.5 
Comparison with WCAG 2.0 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#comparison-with-wcag-2-0 [https://perma.cc/H76F-6L27].
    \33\ See id.
---------------------------------------------------------------------------

    WCAG 2.1 contains four principles that provide the foundation 
for web accessibility: the web content must be perceivable, 
operable, understandable, and robust.\34\ 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.'' \35\ Thus, WCAG 2.1 contemplates 
establishing testable success criteria that could be used in 
regulatory efforts such as this one.
---------------------------------------------------------------------------

    \34\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
WCAG 2 Layers of Guidance (Sept. 21, 2023), https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance [https://perma.cc/5PDG-ZTJE].
    \35\ Id. (emphasis added).
---------------------------------------------------------------------------

Technical Standard--WCAG 2.1 Level AA

    Section 35.200 requires that public entities' web content and 
mobile apps conform to WCAG 2.1 Level AA unless compliance would 
result in a fundamental alteration or undue financial and 
administrative burdens. As previously mentioned, WCAG 2.1 was 
published in June 2018 and is available at https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. To the 
extent there are differences between WCAG 2.1 Level AA and the 
standards articulated in this part, the standards articulated in 
this part prevail. WCAG 2.1 Level AA is not restated in full in this 
part but is instead incorporated by reference.
    In the NPRM, the Department solicited feedback on the 
appropriate technical standard for accessibility for public 
entities' web content and mobile apps. The Department received many 
public comments from a variety of interested parties in response. 
After consideration of the public comments and after its independent 
assessment, the Department determined that WCAG 2.1 Level AA is the 
appropriate technical standard for accessibility to adopt in subpart 
H of this part. WCAG 2.1 Level AA includes success criteria that are 
especially helpful for people with disabilities using mobile 
devices, people with low vision, and people with cognitive or 
learning disabilities.\36\ Support for WCAG 2.1 Level AA as the 
appropriate technical standard came from a variety of commenters. 
Commenters supporting the adoption of WCAG 2.1 Level AA noted that 
is a widely used and accepted industry standard. At least one such 
commenter noted that requiring conformance to WCAG 2.1 Level AA 
would result in a significant step forward in ensuring access for 
individuals with disabilities to State and local government 
entities' web content and mobile apps. Commenters noted that WCAG 
2.1 Level AA has been implemented, tested, and shown to be a sound 
and comprehensive threshold for public agencies. In addition, 
because WCAG 2.1 Level AA was published in 2018, web developers and 
public entities have had time to familiarize themselves with it. The 
WCAG standards were designed to be ``technology neutral.'' \37\ This 
means that they are designed to be broadly applicable to current and 
future web technologies.\38\ Thus, WCAG 2.1 also allows web and 
mobile app developers flexibility and potential for innovation.
---------------------------------------------------------------------------

    \36\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 0.5 
Comparison with WCAG 2.0 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#comparison-with-wcag-2-0 [https://perma.cc/H76F-6L27].
    \37\ W3C, Introduction to Understanding WCAG, https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU] (June 20, 2023).
    \38\ See W3C, Understanding Techniques for WCAG Success 
Criteria, https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques [https://perma.cc/AMT4-XAAL] (June 20, 2023).
---------------------------------------------------------------------------

    The Department expects that adopting WCAG 2.1 Level AA as the 
technical standard will have benefits that are important to ensuring 
access for individuals with disabilities to public entities' 
services, programs, and activities. For example, WCAG 2.1 Level AA 
requires that text be formatted so that it is easier to read when 
magnified.\39\ This is important, for example, for people with low 
vision who use magnifying tools. Without the formatting that WCAG 
2.1 Level AA requires, a person magnifying the text might find 
reading the text disorienting because they might have to scroll 
horizontally on every line.\40\
---------------------------------------------------------------------------

    \39\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Success Criterion 1.4.10 Reflow (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#reflow [https://perma.cc/TU9U-C8K2].
    \40\ See id.
---------------------------------------------------------------------------

    WCAG 2.1 Level AA also includes success criteria addressing the 
accessibility of mobile apps or web content viewed on a mobile 
device. For example, WCAG 2.1 Level AA 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.\41\

[[Page 31347]]

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.\42\ If web content or mobile apps only work in one 
orientation, they will not always work for this individual depending 
on how the tablet is oriented, which could render that content or 
app unusable for the person.\43\ Another WCAG 2.1 success criterion 
requires, in part, that if a function in an app can be operated by 
motion--for example, shaking the device to undo typing--that there 
be an option to turn off that motion sensitivity.\44\ This could be 
important, for example, for someone who has tremors, so that they do 
not accidentally undo their typing.\45\
---------------------------------------------------------------------------

    \41\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Success Criterion 1.3.4 Orientation (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#orientation [https://perma.cc/M2YG-LB9V].
    \42\ W3C, What's New in WCAG 2.1, https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/S7VS-J6E4] 
(Oct. 5, 2023).
    \43\ See id.
    \44\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Success Criterion 2.5.4 Motion Actuation (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#motion-actuation [https://perma.cc/D3PS-32NV].
    \45\ See W3C, What's New in WCAG 2.1, https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK] 
(Oct. 5, 2023).
---------------------------------------------------------------------------

    Such accessibility features are critical for individuals with 
disabilities to have equal access to their State or local government 
entity's services, programs, and activities. This is particularly 
true given that using mobile devices to access government services 
is commonplace. For example, one source notes that mobile traffic 
generally accounts for 58.21 percent of all internet usage.\46\ In 
addition, WCAG 2.1 Level AA's incorporation of mobile-related 
criteria is important because of public entities' increasing use of 
mobile apps in offering their services, programs, or activities. 
Public entities are using mobile apps to offer a range of critical 
government services--from providing traffic information, to 
scheduling trash pickup, to making vaccination appointments.
---------------------------------------------------------------------------

    \46\ Andrew Buck, MobiLoud, What Percentage of internet Traffic 
is Mobile?, https://www.mobiloud.com/blog/what-percentage-of-internet-traffic-is-mobile#what-percentage-of-internet-traffic-comes-on-mobile-devices [https://perma.cc/2FK6-UDD5] (Feb. 7, 2024).
---------------------------------------------------------------------------

    The Department also understands that public entities are likely 
already familiar with WCAG 2.1 Level AA or will be able to become 
familiar quickly. This is because WCAG 2.1 Level AA has been 
available since 2018,\47\ 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. According to the Department's research, 
WCAG 2.1 is already being increasingly used by members of the public 
and State and local government entities. At least ten States now 
use, or aim to use, WCAG 2.1 as a standard for their websites, 
indicating increased familiarity with and use of the standard. In 
fact, as commenters also noted, the Department recently included 
WCAG 2.1 in several settlement agreements with covered entities 
addressing inaccessible websites.\48\
---------------------------------------------------------------------------

    \47\ The WAI published some revisions to WCAG 2.1 on September 
21, 2023. See W3C, Web Content Accessibility Guidelines (WCAG) 2.1 
(Sept. 21, 2023), https://www.w3.org/TR/WCAG21/ [https://perma.cc/4VF7-NF5F]. However, for the reasons discussed in this section, 
subpart H of this part requires conformance to the version of WCAG 
2.1 that was published in 2018. W3C, Web Content Accessibility 
Guidelines 2.1 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. The Department 
believes that public entities have not had sufficient time to become 
familiar with the 2023 version. Public entities and others also may 
not have had an adequate opportunity to comment on whether the 
Department should adopt the 2023 version, which was published 
shortly before the comment period on the NPRM closed on October 3, 
2023. One recent revision to WCAG 2.1 relates to Success Criterion 
4.1.1, which addresses parsing. W3C has described Success Criterion 
4.1.1 as ``obsolete'' and stated that it ``is no longer needed for 
accessibility.'' W3C, WCAG 2 FAQ, https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/24FK-V8LS] (Oct. 
5, 2023). According to the 2023 version of WCAG, Success Criterion 
4.1.1 ``should be considered as always satisfied for any content 
using HTML or XML.'' W3C, Web Content Accessibility Guidelines 
(WCAG) 2.1 (Sept. 21, 2023), https://www.w3.org/TR/WCAG21/ [https://perma.cc/4VF7-NF5F]. The Department believes that either adopting 
this note from the 2023 version of WCAG or not requiring conformance 
to Success Criterion 4.1.1 is likely to create significant 
confusion. And although Success Criterion 4.1.1 has been removed 
from WCAG 2.2, the Department has decided not to adopt WCAG 2.2 for 
the reasons described herein. W3C, WCAG 2 FAQ, https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/45DS-RRYS] (Oct. 5, 2023). Therefore, conformance to Success 
Criterion 4.1.1 is still required by subpart H of this part. Public 
entities that do not conform to Success Criterion 4.1.1 would 
nonetheless be able to rely on Sec.  35.205 to satisfy their 
obligations under Sec.  35.200 if the failure to conform to Success 
Criterion 4.1.1 would not affect the ability of individuals with 
disabilities to use the public entity's web content or mobile app in 
the manner described in that section. The Department expects that 
this provision will help public entities avoid any unnecessary 
burden that might be imposed by Success Criterion 4.1.1.
    \48\ See, e.g., Settlement Agreement Under the Americans with 
Disabilities Act Between the United States of America and CVS 
Pharmacy, Inc. (Apr. 11, 2022), https://www.ada.gov/cvs_sa.pdf 
[https://perma.cc/H5KZ-4VVF]; Settlement Agreement Under the 
Americans with Disabilities Act Between the United States of America 
and Meijer, Inc. (Feb. 2, 2022), https://www.ada.gov/meijer_sa.pdf 
[https://perma.cc/5FGD-FK42]; Settlement Agreement Under the 
Americans with Disabilities Act Between the United States of America 
and the Kroger Co. (Jan. 28, 2022), https://www.ada.gov/kroger_co_sa.pdf [https://perma.cc/6ASX-U7FQ]; Settlement Agreement 
Between the United States of America and the Champaign-Urbana Mass 
Transit District (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 Under the Americans with 
Disabilities Act Between the United States of America and Hy-Vee, 
Inc. (Dec. 1, 2021), https://www.ada.gov/hy-vee_sa.pdf [https://perma.cc/GFY6-BJNE]; Settlement Agreement Under the Americans with 
Disabilities Act Between the United States of America and Rite Aid 
Corp. (Nov. 1, 2021), https://www.ada.gov/rite_aid_sa.pdf [https://perma.cc/4HBF-RBK2].
---------------------------------------------------------------------------

    The Department expects, and heard in public comments, that web 
developers and professionals who work for or with public entities 
are likely to be familiar with WCAG 2.1 Level AA. And the Department 
believes that if public entities and associated web developers are 
not already familiar with WCAG 2.1 Level AA, 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, like 
trainings and checklists, 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.\49\ Additionally, public entities will have two 
or three years, depending on population size, to come into 
compliance with subpart H of this part. Therefore, public entities 
and web professionals who are not already familiar with WCAG 2.1 
will have time to familiarize themselves and plan to ensure that 
they will be in compliance with the rule when required.
---------------------------------------------------------------------------

    \49\ See, e.g., W3C, Tutorials, https://www.w3.org/WAI/tutorials/ [https://perma.cc/SW5E-WWXV] (Feb. 16, 2023).
---------------------------------------------------------------------------

Alternative Approaches Considered

WCAG 2.2

    Commenters suggested that the Department adopt WCAG 2.2 as the 
technical standard. WCAG 2.2 was published as a candidate 
recommendation--a prefinalization stage--in May 2023, and was 
published in final form on October 5, 2023, which was after the NPRM 
associated with the final rule was published and after the comment 
period closed.\50\ Commenters who supported the adoption of WCAG 2.2 
noted that it was likely to be finalized before the final rule would 
be published. All of the WCAG 2.0 and WCAG 2.1 success criteria 
except for one are included in WCAG 2.2.\51\ WCAG 2.2 also includes 
six additional Level A and AA success criteria beyond those included 
in WCAG 2.1.\52\ Commenters supporting the adoption of WCAG 2.2 
noted that WCAG 2.2's additional success criteria are important for 
ensuring accessibility; for example, WCAG 2.2 includes additional 
criteria that are important for people with cognitive disabilities 
or for those accessing content via mobile apps. Like WCAG 2.1, WCAG 
2.2's additional success criteria offer particular 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.\53\ Some commenters 
also suggested that the few additional criteria in WCAG 2.2 would 
not pose a substantial burden for web developers, who are likely 
already familiar with WCAG 2.1.
---------------------------------------------------------------------------

    \50\ W3C, WCAG 2 Overview, https://www.w3.org/WAI/standards-guidelines/wcag/ [https://perma.cc/RQS2-P7JC] (Oct. 5, 2023).
    \51\ W3C, What's New in WCAG 2.2, https://www.w3.org/WAI/standards-guidelines/wcag/new-in-22/ [https://perma.cc/GDM3-A6SE] 
(Oct. 5, 2023).
    \52\ Id.
    \53\ Id.

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[[Page 31348]]

    Some commenters suggested that WCAG 2.1 would become outdated 
once WCAG 2.2 was finalized. And because WCAG 2.2 was adopted more 
recently than WCAG 2.1, some commenters noted that the adoption of 
WCAG 2.2 would be more likely to help subpart H of this part keep 
pace with changes in technology. The Department understands and 
appreciates the concerns commenters raised.
    The Department believes that adopting WCAG 2.1 as the technical 
standard rather than WCAG 2.2 is the most prudent approach at this 
time. W3C, while recommending the use of the most recent recommended 
standard, has made clear that WCAG 2.2 does not ``deprecate or 
supersede'' WCAG 2.1 and has stated that WCAG 2.1 is still an 
existing standard.\54\ The Department recognizes that WCAG 2.2 is a 
newer standard, but in crafting subpart H of this part the 
Department sought to balance benefits for individuals with 
disabilities with feasibility for public entities making their 
content accessible in compliance with subpart H. Because WCAG 2.2 
has been adopted so recently, web professionals have had less time 
to become familiar with the additional success criteria that have 
been incorporated in WCAG 2.2. The Department believes there will be 
fewer resources and less guidance available to web professionals and 
public entities on the new success criteria in WCAG 2.2. 
Additionally, the Department appreciates the concerns expressed by 
at least one commenter with adopting any standard that was not 
finalized before the NPRM's comment period--as was the case with 
WCAG 2.2--because interested parties would not have had an 
opportunity to understand and comment on the finalized standard.
---------------------------------------------------------------------------

    \54\ W3C, WCAG 2 Overview, https://www.w3.org/WAI/standards-
guidelines/wcag/
#:~:text=WCAG%202.0%2C%20WCAG%202.1%2C%20and%20WCAG%202.2%20are%20all
%20existing,most%20recent%20version%20of%20WCAG [https://perma.cc/V5ZC-BF8Z] (Oct. 5, 2023).
---------------------------------------------------------------------------

    Given the benefits of WCAG 2.2 highlighted by commenters, some 
public entities might choose to implement WCAG 2.2 to provide an 
even more accessible experience for individuals with disabilities 
and to increase customer service satisfaction. The Department notes 
that subpart H of this part provides for equivalent facilitation in 
Sec.  35.203, meaning public entities could choose to comply with 
subpart H by conforming their web content to WCAG 2.2 Level AA 
because WCAG 2.2 Level AA provides substantially equivalent or 
greater accessibility and usability as compared to WCAG 2.1 Level 
AA. This would be sufficient to meet the standard for equivalent 
facilitation in Sec.  35.203, which is discussed in more detail 
later in the section-by-section analysis.

WCAG 2.0 and Section 508 of the Rehabilitation Act

    Alternatively, the Department considered adopting WCAG 2.0. This 
change was suggested by the Small Business Administration, which 
argued that public entities should not have to comply with a more 
rigorous standard for online accessibility than the Federal 
Government, which is required to conform to WCAG 2.0 under section 
508 of the Rehabilitation Act. In 2017, when the Architectural and 
Transportation Barriers Compliance Board (``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.\55\ And 
although WCAG 2.0 is the standard adopted by the Department of 
Transportation in its regulations implementing the Air Carrier 
Access Act, which covers airlines' websites and kiosks,\56\ those 
regulations--like the section 508 rule--were promulgated before WCAG 
2.1 was published.
---------------------------------------------------------------------------

    \55\ See Information and Communication Technology (ICT) 
Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017); W3C, Web 
Content Accessibility Guidelines (WCAG) 2.1 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/and https://perma.cc/UB8A-GG2F.
    \56\ See 14 CFR 382.43(c) through (e) and 382.57.
---------------------------------------------------------------------------

    The Department believes that adopting WCAG 2.1 as the technical 
standard for subpart H of this part is more appropriate than 
adopting WCAG 2.0. WCAG 2.1 provides for important accessibility 
features that are not included in WCAG 2.0, and an increasing number 
of governmental entities are using WCAG 2.1. 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.\57\ In countries that are part of 
the European Union, public sector websites and mobile apps generally 
must meet a technical standard that requires conformance to the WCAG 
2.1 success criteria.\58\ And WCAG 2.0 is likely to become outdated 
or less relevant more quickly than WCAG 2.1. As discussed previously 
in this appendix, WCAG 2.2 was recently published and includes even 
more success criteria for accessibility.
---------------------------------------------------------------------------

    \57\ See, e.g., Austl. Gov't Digital Transformation Agency, 
Exploring WCAG 2.1 for Australian Government Services (Aug. 22, 
2018), https://www.dta.gov.au/blogs/exploring-wcag-21-australian-government-services. A Perma archive link was unavailable for this 
citation. See also W3C, Denmark (Danmark), https://www.w3.org/WAI/policies/denmark/#bekendtg%C3%B8relse-om-afgivelse-af-tilg%C3%A6ngelighedserkl%C3%A6ring-for-offentlige-organers-websteder-og-mobilapplikationer [https://perma.cc/K8BM-4QN8] (Mar. 
15, 2023); see also W3C, Web Accessibility Laws & Policies, https://www.w3.org/WAI/policies/ [https://perma.cc/6SU3-3VR3] (Dec. 2023).
    \58\ European Comm'n, Web Accessibility, https://digital-strategy.ec.europa.eu/en/policies/web-accessibility [https://perma.cc/LSG9-XW7L] (Oct. 10, 2023); European Telecomm. Standards 
Inst., Accessibility Requirements for ICT Products and Services 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].
---------------------------------------------------------------------------

    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, dozens of States either use or strive 
to use WCAG 2.0 or greater--either on their own or by way of 
implementing the section 508 technical standards--for at least some 
of their web content. It appears that at least ten States--Alaska, 
Delaware, Georgia, Louisiana, Massachusetts, Oregon, Pennsylvania, 
South Dakota, Utah, and Washington--already either use WCAG 2.1 or 
strive to use WCAG 2.1 for at least some of their web content. Given 
that WCAG 2.1 is a more recent standard than WCAG 2.0, adds some 
important criteria for accessibility, and has been in existence for 
long enough for web developers and public entities to get acquainted 
with it, the Department views it as more appropriate for adoption in 
subpart H of this part than WCAG 2.0. In addition, even to the 
extent public entities are not already acquainted with WCAG 2.1, 
those entities will have two or three years to come into compliance 
with subpart H, which should also provide sufficient time to become 
familiar with and implement WCAG 2.1. The Department also declines 
to adopt the Access Board's section 508 standards, which are 
harmonized with WCAG 2.0, for the same reasons it declines to adopt 
WCAG 2.0.

Effective Communication and Performance Standards

    Some commenters suggested that the Department should require 
public entities to ensure that they are meeting title II's effective 
communication standard--which requires that public entities ensure 
that their communications with individuals with disabilities are as 
effective as their communications with others \59\--rather than 
requiring compliance with a specific technical standard for 
accessibility. One such commenter also suggested that the Department 
rely on conformance to WCAG only as a safe harbor--as a way to show 
that the entity complies with the effective communication standard. 
The Department believes that adopting into subpart H of this part 
the effective communication standard, which is already required 
under the existing title II regulation,\60\ would not meaningfully 
help ensure access for individuals with disabilities or provide 
clarity for public entities in terms of what specifically public 
entities must do to ensure that their web content and mobile apps 
are accessible. As previously mentioned, WCAG 2.1 Level AA provides 
specific, testable success criteria. As noted in section III.D.4 of 
the preamble to the final rule, relying solely on the existing title 
II obligations and expecting entities to voluntarily comply has 
proven insufficient. In addition, using the technical standard only 
as a safe harbor would pose similar issues in terms of clarity and 
would not result in reliability and predictability for individuals 
with disabilities seeking to access, for example, critical 
government services that public entities have as part of their web 
content and mobile apps.
---------------------------------------------------------------------------

    \59\ Section 35.160.
    \60\ Id.
---------------------------------------------------------------------------

    Commenters also suggested that manual testing by individuals 
with disabilities be required to ensure that content is accessible 
to them. Although subpart H of this part does not specifically 
require manual testing by individuals with disabilities because 
requiring such testing could pose logistical or other hurdles, the 
Department recommends that public entities seek and incorporate

[[Page 31349]]

feedback from individuals with disabilities on their web content and 
mobile apps. Doing so will help ensure that everyone has access to 
critical government services.
    The Department received some comments recommending that the 
Department adopt a performance standard instead of a specific 
technical standard for accessibility of web content and mobile apps. 
Performance standards establish general expectations or goals for 
web and mobile app accessibility and allow for compliance via a 
variety of unspecified methods. As commenters explained, performance 
standards could provide greater flexibility in ensuring 
accessibility as web and mobile app technologies change. However, as 
the Department noted in the NPRM,\61\ the Department believes that 
performance standards are too vague and subjective and could be 
insufficient to provide consistent and testable requirements for web 
and mobile app accessibility. Additionally, the Department expects 
that performance standards would not result in predictability for 
either public entities or individuals 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 as technology evolves.\62\ The Department 
recognizes the importance of adopting a standard for web and mobile 
app accessibility that provides not only specific and testable 
requirements, but also sufficient flexibility to develop 
accessibility solutions for new 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 
entities with less technological experience. This will assist public 
entities in identifying and addressing accessibility errors, which 
may reduce costs they would incur without clear expectations.
---------------------------------------------------------------------------

    \61\ 88 FR 51962.
    \62\ W3C, Benefits of Web Content Accessibility Guidelines WCAG 
2, https://www.w3.org/WAI/presentations/WCAG20_benefits/WCAG20_benefits.html [https://perma.cc/3RTN-FLKV] (Aug. 12, 2010) 
(``WCAG 2 is adaptable and flexible, for different situations, and 
developing technologies and techniques. We described earlier how 
WCAG 2 is flexible to apply to Web technologies now and in the 
future.'').
---------------------------------------------------------------------------

Evolving Standard

    Other commenters suggested that the Department take an approach 
in the final rule whereby public entities would be required to 
comply with whatever is the most recent version of WCAG at the time. 
Under that approach, the required technical standard would 
automatically update as new versions of WCAG are published in the 
future. These commenters generally argued that such an approach 
would aid in ``future proofing'' subpart H of this part to help it 
keep up with changes in technology. Based on several legal 
considerations, the Department will not adopt such an approach. 
First, the Department is incorporating WCAG 2.1 Level AA by 
reference into subpart H and must abide by the Office of the Federal 
Register's regulation regarding incorporation by reference.\63\ The 
regulation states that incorporation by reference of a publication 
is limited to the edition of the publication that is approved by the 
Office of the Federal Register. Future amendments or revisions of 
the publication are not included.\64\ Accordingly, the Department 
only incorporates a particular version of the technical standard and 
does not state that future versions of WCAG would be automatically 
incorporated into subpart H. In addition, the Department has 
concerns about regulating to a future standard of WCAG that has yet 
to be created, of which the Department has no knowledge, and for 
which compatibility with the ADA and covered entities' content is 
uncertain.
---------------------------------------------------------------------------

    \63\ See 1 CFR 51.1(f).
    \64\ Id.
---------------------------------------------------------------------------

    Relatedly, the Department also received comments suggesting that 
it institute a process for reviewing and revising its regulation 
every several years to ensure that subpart H of this part is up to 
date and effective for current technology. Pursuant to Executive 
Order 13563, the Department is already required to do a periodic 
retrospective review of its regulations to determine whether any 
such regulations should be modified, streamlined, expanded, or 
repealed so as to make the agency's regulatory program more 
effective or less burdensome in achieving the regulatory 
objectives.\65\ Consideration of the effectiveness of subpart H of 
this part in the future would fall within Executive Order 13563's 
purview, such that building a mechanism into subpart H is not 
necessary at this time.
---------------------------------------------------------------------------

    \65\ E.O. 13563, sec. 6, 3 CFR, 2012 Comp., p. 215.
---------------------------------------------------------------------------

Alternative Approaches Considered for Mobile Apps and Conventional 
Electronic Documents

    Section 35.200 adopts WCAG 2.1 Level AA as the technical 
standard for mobile apps. This approach will ensure the 
accessibility standards for mobile apps in subpart H of this part 
are consistent with the accessibility standards for web content in 
subpart H. The NPRM asked for feedback on the appropriate technical 
standard for mobile apps, including whether the Department should 
adopt WCAG 2.1 Level AA or other standards like the standards for 
section 508 of the Rehabilitation Act (``Section 508 Standards''), 
which apply to the Federal Government's web content and mobile 
apps.\66\ The Department received several comments on the technical 
standard that should apply to mobile apps. Some commenters supported 
adopting WCAG 2.1 Level AA, some suggested adopting other technical 
standards or requirements, and others suggested that some WCAG 
success criteria may not apply to mobile apps.
---------------------------------------------------------------------------

    \66\ 36 CFR 1194.1; 36 CFR part 1194, appendices A, C, and D.
---------------------------------------------------------------------------

    Some commenters had concerns about the costs and burdens 
associated with applying any technical standard to content on mobile 
apps, including to content in mobile apps that public entities 
already provide on the web. One commenter requested that the 
Department apply WCAG 2.0 to the extent that a public entity's 
mobile app provides different content than is available online.
    However, many commenters expressed strong support for applying 
the same technical standard for mobile apps and web content and 
shared that web content and mobile apps generally should not be 
treated differently. These commenters emphasized the importance of 
mobile app accessibility, explaining that many individuals rely on 
mobile apps to get information about State or local government 
services, programs, or activities, including transportation 
information, emergency alerts or special news bulletins, and 
government appointments. Some commenters further clarified that 
adopting different standards for mobile apps than web content could 
cause confusion. They also stated that adopting the same standard 
would ensure a uniform experience and expectations for users with 
disabilities.
    Many commenters, including disability advocacy organizations, 
individuals, and public entities, supported the use of WCAG 2.1 
Level AA as the technical standard for mobile apps, in part because 
WCAG is internationally recognized, often adopted in practice, and 
technology neutral (i.e., it applies to both web content and mobile 
apps). Other commenters said that WCAG 2.1 Level AA is an 
appropriate standard for mobile apps because it includes specific 
success criteria aimed at addressing the unique challenges of mobile 
app accessibility.
    Some commenters suggested that the Department should adopt WCAG 
2.2 as the technical standard for mobile apps. These commenters 
explained that WCAG 2.2 is more recent and includes newer guidelines 
based on accessibility issues found in smartphones. Commenters 
further shared that WCAG 2.2 can better ensure adequate button size 
and spacing to accommodate users with varying degrees of motor 
skills in their fingers.
    In addition, other commenters recommended that the Department 
adopt the Section 508 Standards, either independently or together 
with WCAG 2.1 or WCAG 2.2. Some of these commenters shared their 
belief that WCAG was developed more for web content than for mobile 
apps. These commenters stated that while many of WCAG's principles 
and guidelines can be applied to mobile apps, mobile apps have 
unique characteristics and interactions that may require additional 
considerations and depend on the specific requirements and goals of 
the mobile app in question. For example, commenters indicated that 
mobile apps may also need to adhere to platform-specific 
accessibility guidelines for iOS (Apple) and Android (Google). In 
addition, commenters noted that the Section 508 Standards include 
additional requirements applicable to mobile apps that are not 
included in WCAG 2.1 Level AA, such as interoperability requirements 
to ensure that a mobile app does not disrupt a mobile device's 
internal assistive technology for individuals with disabilities 
(e.g., screen readers for people who are blind or have low

[[Page 31350]]

vision). Some commenters suggested that the Department include these 
additional requirements from the Section 508 Standards in subpart H 
of this part.
    The Department carefully considered all of these comments and 
agrees with commenters who stated that the same technical standard 
for accessibility should apply to both web content and mobile apps. 
The Department believes that applying the same technical standard to 
both web content and mobile apps will reduce confusion by ensuring 
consistent requirements and user experiences across web and mobile 
platforms.
    The Department further agrees with the commenters who stated 
that WCAG 2.1 Level AA is an appropriate technical standard. As 
discussed previously in this appendix, many developers and 
organizations are already familiar with WCAG 2.1 Level AA, and they 
may be less familiar with WCAG 2.2. The Department thus believes 
that selecting WCAG 2.1 Level AA as the technical standard for 
mobile apps will reduce the difficulty of complying with subpart H 
of this part by adopting a well-recognized standard that is already 
familiar to developers and organizations, while still ensuring 
increased accessibility and usability for individuals with 
disabilities. The Department notes that subpart H allows for 
equivalent facilitation in Sec.  35.203, meaning that public 
entities could still choose to apply additional standards or 
techniques related to mobile apps, to the extent that the standard 
or technique results in substantially equivalent or greater 
accessibility and usability.
    As commenters noted, WCAG 2.1 is designed to be technology 
neutral, which will help ensure accessibility for mobile apps. 
Although the Section 508 Standards include some additional 
requirements like interoperability that are not required by 
WCAG,\67\ WCAG 2.1 Level AA includes specific success criteria 
related to mobile app accessibility. These success criteria address 
challenges such as touch target size, orientation, and motion 
actuation, among others.\68\ Therefore, the Department believes that 
WCAG 2.1 Level AA is a robust framework for mobile app 
accessibility.
---------------------------------------------------------------------------

    \67\ See 36 CFR 1194.1; 36 CFR part 1194, appendix C, ch. 5.
    \68\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1 (June 
5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and 
https://perma.cc/UB8A-GG2F (success criteria 2.5.5, 1.3.4, & 2.5.4).
---------------------------------------------------------------------------

    The Department also received comments indicating that certain 
requirements under WCAG 2.1 Level AA may not be applicable to mobile 
apps or conventional electronic documents and subpart H of this part 
should therefore set forth exceptions for those success criteria. 
The Access Board faced similar concerns when it promulgated its 
Section 508 Standards.\69\ Accordingly, the Section 508 Standards 
indicate that ``non-Web documents'' and ``non-Web software,'' which 
include conventional electronic documents and mobile apps, do not 
have to comply with the following WCAG 2.0 Success Criteria: 2.4.1 
Bypass Blocks, 2.4.5 Multiple Ways, 3.2.3 Consistent Navigation, and 
3.2.4 Consistent Identification.\70\ W3C has provided guidance on 
how these and other WCAG success criteria can be applied to non-web 
information and communications technologies, including conventional 
electronic documents and mobile apps.\71\
---------------------------------------------------------------------------

    \69\ See Information and Communication Technology (ICT) 
Standards and Guidelines, 82 FR 5790, 5798-99 (Jan. 18, 2017).
    \70\ Id. at 5799.
    \71\ W3C, WCAG2ICT Overview, https://www.w3.org/WAI/standards-guidelines/wcag/non-web-ict/ [https://perma.cc/XRL6-6Q9Y] (Feb. 2, 
2024).
---------------------------------------------------------------------------

    The Department understands that some WCAG 2.1 Level AA success 
criteria may not apply to conventional electronic documents and 
mobile apps directly as written, but the Department declines to set 
forth exceptions to these success criteria in subpart H of this 
part. As discussed, the Department believes it is important to apply 
one consistent standard to web content and mobile apps to ensure 
clarity and reduce confusion. Public entities generally must ensure 
that the web content and content in mobile apps they provide or make 
available conform to the WCAG 2.1 Level AA success criteria, to the 
extent those criteria can be applied. In determining how to make 
conventional electronic documents and mobile apps conform to WCAG 
2.1 Level AA, public entities may wish to consult W3C's guidance on 
non-web information and communications technology, which explains 
how the WCAG success criteria can be applied to conventional 
electronic documents and mobile apps.\72\ The Department believes 
the compliance dates discussed in Sec.  35.200 will provide public 
entities sufficient time to understand how WCAG 2.1 Level AA applies 
to their conventional electronic documents and mobile apps, 
especially because WCAG 2.1 has been in final form since 2018, which 
has provided time for familiarity and resources to develop. Further, 
the Department will continue to monitor developments in the 
accessibility of conventional electronic documents and mobile apps 
and may issue further guidance as appropriate.
---------------------------------------------------------------------------

    \72\ See W3C, Guidance on Applying WCAG 2.0 to Non-Web 
Information and Communications Technologies (WCAG2ICT) (Sep. 5, 
2003), https://www.w3.org/TR/wcag2ict/ [https://perma.cc/6HKS-8YZP]. 
This guidance may provide assistance in interpreting certain WCAG 
2.0 success criteria (also included in WCAG 2.1 Level AA) that do 
not appear to be directly applicable to non-web information and 
communications like conventional electronic documents and mobile 
apps as written, but that can be made applicable with minor 
revisions. For example, for Success Criterion 1.4.2 (audio control), 
replacing the words ``on a web page'' with ``in a non-web document 
or software'' can make this Success Criterion clearly applicable to 
conventional electronic documents and mobile apps.
---------------------------------------------------------------------------

Alternative Approaches Considered for PDF Files and Digital Textbooks

    The Department also received a comment suggesting that subpart H 
of this part reference PDF/UA-1 for standards related to PDF files 
or W3C's EPUB Accessibility 1.1 standard \73\ for digital textbooks. 
The Department declines to adopt additional technical standards for 
these specific types of content. As discussed, the WCAG standards 
were designed to be ``technology neutral'' \74\ and are designed to 
be broadly applicable to current and future web technologies.\75\ 
The Department is concerned that adopting multiple technical 
standards related to different types of web content and content in 
mobile apps could lead to confusion. However, the Department notes 
that subpart H allows for equivalent facilitation in Sec.  35.203, 
meaning that public entities could still choose to comply with 
additional standards or guidance related to PDFs or digital 
textbooks to the extent that the standard or technique used provides 
substantially equivalent or greater accessibility and usability.
---------------------------------------------------------------------------

    \73\ W3C, EPUB Accessibility 1.1 (May 25, 2023), https://www.w3.org/TR/epub-a11y-11/ [https://perma.cc/48A5-NC2B].
    \74\ W3C, Introduction to Understanding WCAG (June 20, 2023), 
https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU].
    \75\ See W3C, Understanding Techniques for WCAG Success Criteria 
(June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques [https://perma.cc/AMT4-XAAL].
---------------------------------------------------------------------------

    In summary, the Department believes that adopting WCAG 2.1 Level 
AA as the technical standard strikes the appropriate balance of 
ensuring access for individuals with disabilities and feasibility of 
implementation because there is a baseline of familiarity with the 
standard. In addition, for the reasons discussed previously in this 
appendix, the Department believes that WCAG 2.1 Level AA is an 
effective standard that sets forth clear, testable success criteria 
that will provide important benefits to individuals with 
disabilities.

WCAG Conformance Level

    For web content and mobile apps to conform to WCAG 2.1, they 
must satisfy the success criteria under one of three levels of 
conformance: A, AA, or AAA. As previously mentioned, the Department 
is adopting Level AA as the conformance level under subpart H of 
this part. In the regulatory text at 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. As noted in the NPRM,\76\ WCAG 2.1 provides that for 
Level AA conformance, the web page must satisfy all the Level A and 
Level AA Success Criteria.\77\ 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 to attain Level AA conformance. Accordingly, the Department has 
made explicit in subpart H that both Level A and Level AA success

[[Page 31351]]

criteria and conformance requirements must be met in order to comply 
with subpart H's requirements.
---------------------------------------------------------------------------

    \76\ 88 FR 51961.
    \77\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1, Sec.  
5.2 Conformance Requirements (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs [https://perma.cc/39WD-CHH9]. WCAG 2.1 also allows a Level AA conforming alternate version 
to be provided instead. The Department has adopted a slightly 
different approach to conforming alternate versions, which is 
discussed in the section-by-section analysis of Sec.  35.202.
---------------------------------------------------------------------------

    By way of background, 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.\78\ Level AA, which is the intermediate level of 
accessibility, includes all of the Level A criteria and also 
contains other criteria that provide more comprehensive web 
accessibility, and yet are still achievable for most web 
developers.\79\ Level AAA, which is the highest level of 
conformance, includes all of the Level A and Level AA criteria and 
also contains additional criteria that can provide a more enriched 
user experience, but are the most difficult to achieve for web 
developers.\80\ W3C 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.\81\
---------------------------------------------------------------------------

    \78\ W3C, Web Content Accessibility Guidelines (WCAG) 2 Level A 
Conformance (July 13, 2020), https://www.w3.org/WAI/WCAG2A-Conformance [https://perma.cc/KT74-JNHG].
    \79\ Id.
    \80\ Id.
    \81\ See W3C, Understanding Conformance, Understanding 
Requirement 1, https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/K94N-Z3TF].
---------------------------------------------------------------------------

    Based on public feedback and independent research, the 
Department believes that WCAG 2.1 Level AA is the appropriate 
conformance level because it includes criteria that provide web and 
mobile app 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. Commenters who spoke to this issue 
generally seemed supportive of this approach. As discussed in the 
NPRM,\82\ 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 WCAG 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.\83\ 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 
individuals with vision disabilities.
---------------------------------------------------------------------------

    \82\ 88 FR 51961.
    \83\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 0.5 
Comparison with WCAG 2.0 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#comparison-with-wcag-2-0 [https://perma.cc/H76F-6L27].
---------------------------------------------------------------------------

    Some commenters suggested that certain Level AAA criteria or 
other unique accessibility requirements be added to the technical 
standard in subpart H of this part. However, the Department believes 
it would be confusing and difficult to implement certain Level AAA 
or other unique criteria when such criteria are not required under 
WCAG 2.1 Level AA. Adopting WCAG 2.1 Level AA as a whole provides 
greater predictability and reliability. Also, while Level AAA 
conformance provides a richer user experience, it is the most 
difficult to achieve for many entities. Again, W3C 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.\84\ Adopting a Level AA conformance 
level makes the requirements of subpart H consistent with a standard 
that has been accepted internationally.\85\ The web content of 
Federal agencies is also required to conform to WCAG 2.0 Level AA 
under the Section 508 Standards.\86\
---------------------------------------------------------------------------

    \84\ See W3C, Understanding Conformance, Understanding 
Requirement 1, https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/9ZG9-G5N8].
    \85\ See W3C, Web Accessibility Laws & Policies, https://www.w3.org/WAI/policies/ [https://perma.cc/6SU3-3VR3] (Dec. 4, 
2023).
    \86\ See Information and Communication Technology (ICT) 
Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017).
---------------------------------------------------------------------------

    Therefore, the Department believes that adopting the Level AA 
conformance level strikes the right balance between accessibility 
for individuals with disabilities and achievability for public 
entities.

Requirements by Entity Size

    In addition to setting forth a technical standard with which 
public entities must comply, Sec.  35.200(b) also establishes dates 
by which a public entity must comply. The compliance time frames set 
forth in Sec.  35.200(b) are generally delineated by the total 
population of the public entity, as defined in Sec.  35.104. Larger 
public entities--those with populations of 50,000 or more--will have 
two years before compliance is first required. For the reasons 
discussed in the section-by-section analysis of Sec.  35.200(b)(2), 
small public entities--those with total populations under 50,000--
and special district governments will have an additional year, 
totaling three years, before compliance is first required. The 
50,000 population threshold was chosen because it corresponds with 
the definition of ``small governmental jurisdictions'' as defined in 
the Regulatory Flexibility Act.\87\ After the compliance date, 
ongoing compliance with subpart H of this part is required.
---------------------------------------------------------------------------

    \87\ 5 U.S.C. 601(5).
---------------------------------------------------------------------------

    Commenters expressed a wide range of views about how long public 
entities should be given to bring their web content and mobile apps 
into compliance with subpart H of this part. Some commenters 
expressed concern that public entities would need more time to 
comply, while others expressed concern that a delayed compliance 
date would prolong the exclusion of individuals with disabilities 
from public entities' online services, programs, or activities. 
Suggestions for the appropriate compliance time frame ranged from 
six months to six years. There were also some commenters who 
suggested a phased approach where a public entity would need to 
periodically meet certain compliance milestones over time by 
prioritizing certain types of content or implementing certain 
aspects of the technical standard. Refer to the section of the 
section-by-section analysis entitled ``Compliance Time Frame 
Alternatives'' for further discussion of these suggested approaches.
    The Department appreciates the various considerations raised by 
public stakeholders in their comments. After carefully weighing the 
arguments that the compliance dates should be kept the same, 
shortened, lengthened, or designed to phase in certain success 
criteria or focus on certain content, the Department has decided 
that the compliance dates in subpart H of this part--two years for 
large public entities and three years for small public entities and 
special district governments--strike the appropriate balance between 
the various interests at stake. Shortening the compliance dates 
would likely result in increased costs and practical difficulties 
for public entities, especially small public entities. Lengthening 
the compliance dates would prolong the exclusion of many individuals 
with disabilities from public entities' web content and mobile apps. 
The Department believes that the balance struck in the compliance 
time frame proposed in the NPRM was appropriate, and that there are 
no overriding reasons to shorten or lengthen these dates given the 
important and competing considerations involved by stakeholders.
    Some commenters said that the Department should not require 
compliance with technical standards for mobile apps until at least 
two years after the compliance deadline for web content. These 
commenters asserted that having different compliance dates for web 
content and mobile apps would allow entities to learn how to apply 
accessibility techniques to their web content and then apply that 
experience to mobile apps. Other commenters argued that the 
compliance dates for mobile apps should be shortened or kept as 
proposed.
    The Department has considered these comments and subpart H of 
this part implements the same compliance dates for mobile apps and 
web content, as proposed in the NPRM. Because users can often access 
the same information from both web content and mobile apps, it is 
important that both platforms are subject to the standard at the 
same times to ensure consistency in accessibility and to reduce 
confusion. The Department believes these compliance dates strike the 
appropriate balance between reducing burdens for public entities and 
ensuring accessibility for individuals with disabilities.
    Some commenters stated that it would be helpful to clarify 
whether subpart H of this part establishes a one-time compliance 
requirement or instead establishes an ongoing compliance obligation 
for public entities. The Department wishes to clarify that under 
subpart H, public entities have an ongoing obligation to ensure that 
their web content and mobile apps comply with subpart H's 
requirements, which would include content that is newly added or

[[Page 31352]]

created after the compliance date. The compliance date is the first 
time that public entities need to be in compliance with subpart H's 
requirements; it is not the last. Accordingly, after the compliance 
date, public entities will continue to need to ensure that all web 
content and mobile apps they provide or make available comply with 
the technical standard, except to the extent another provision of 
subpart H permits otherwise. To make this point more clearly, the 
Department revised Sec.  35.200(b)(1) and (2) to state that a public 
entity needs to comply with subpart H beginning two or three years 
after the publication of the final rule. Additionally, some 
commenters suggested that public entities be required to review 
their content for accessibility every few years. The Department does 
not view this as necessary given the ongoing nature of subpart H's 
requirements. However, public entities might find that conducting 
such reviews is helpful in ensuring compliance.
    Of course, while public entities must begin complying with 
subpart H of this part on the applicable compliance date, the 
Department expects that public entities will need to prepare for 
compliance during the two or three years before the compliance date. 
In addition, commenters emphasized--and the Department agrees--that 
public entities still have an obligation to meet all of title II's 
existing requirements both before and after the date they must 
initially come into compliance with subpart H. These include the 
requirements to ensure equal access, ensure effective communication, 
and make reasonable modifications to avoid discrimination on the 
basis of disability.\88\
---------------------------------------------------------------------------

    \88\ Sections 35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------

    The requirements of Sec.  35.200(b) are generally delineated by 
the size of the total population of the public entity. If a public 
entity has a population calculated by the United States Census 
Bureau in the most recent decennial Census, then the United States 
Census Bureau's population estimate for that entity in the most 
recent decennial Census is the entity's total population for 
purposes of this part. If a public entity is an independent school 
district, then the district's total population for purposes of this 
part is determined by reference to the district's population 
estimate as calculated by the United States Census Bureau in the 
most recent Small Area Income and Poverty Estimates.
    The Department recognizes that some public entities, like 
libraries or public colleges and universities, do not have 
population data associated with them in the most recent decennial 
Census conducted by the United States Census Bureau. As noted in the 
section-by-section analysis of Sec.  35.104, the Department has 
inserted a clarification that was previously found in the preamble 
of the NPRM into the regulatory text of the definition of ``total 
population'' in this part to make it easier for public entities like 
these to determine their total population size for purposes of 
identifying the applicable compliance date. As the definition of 
``total population'' makes clear, if a public entity, other than a 
special district government or an independent school district, does 
not have a population calculated by the United States Census Bureau 
in the most recent decennial Census, but is an instrumentality or a 
commuter authority of one or more State or local governments that do 
have such a population estimate, the population of the entity is 
determined by the combined population of any State or local 
governments of which the public entity is an instrumentality or 
commuter authority. For example, a county police department that is 
an instrumentality of a county with a population of 5,000 would be 
considered a small public entity (i.e., an entity with a total 
population of less than 50,000) for purposes of this part, while a 
city police department that is an instrumentality of a city with a 
population of 200,000 would not be considered a small public entity. 
Similarly, if a public entity is an instrumentality of an 
independent school district, the instrumentality's population for 
purposes of this part is determined by reference to the total 
population of the independent school district as calculated in the 
most recent Small Area Income and Poverty Estimates. This part also 
states that the National Railroad Passenger Corporation's total 
population for purposes of this part is determined by reference to 
the population estimate for the United States as calculated by the 
United States Census Bureau in the most recent decennial Census.
    For purposes of this part, the total 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, an independent school district with a population of 60,000 
adults and children, as calculated in the Small Area Income and 
Poverty Estimates, is not a small public entity regardless of the 
number of students enrolled or eligible for services. Similarly, 
individual county schools are also not considered small public 
entities if they are instrumentalities of a county that has a 
population over 50,000. Though a specific county school may create 
and maintain web content or a mobile app, the Department expects 
that the specific school may benefit from the resources made 
available or allocated by the county. This also allows the 
jurisdiction to assess compliance for its services, programs, and 
activities holistically. As another example, a public State 
university located in a town of 20,000 within a State with a 
population of 5 million would be considered a large public entity 
for the purposes of this part because it is an instrumentality of 
the State. However, a county community college in the same State 
where the county has a population of 35,000 would be considered a 
small public entity for the purposes of this part, because the 
community college is an instrumentality of the county.
    Some commenters provided feedback on this method of calculating 
a public entity's size for purposes of determining the applicable 
compliance time frame. Some public educational entities seemed to 
mistakenly believe that their populations would be calculated based 
on the size of their student bodies and suggested that it would be 
difficult for them to calculate their population size under that 
approach because they have multiple campuses in different locations. 
As clarified previously in this appendix, population size for 
educational entities is determined not by the size of those 
entities' student bodies, but rather by reference to the Census-
calculated total population of the jurisdiction of which the 
educational entity is an instrumentality.
    Other commenters suggested that although public entities without 
a Census-defined population may be instrumentalities of public 
entities that do have such a population, those entities do not 
always reliably receive funding from the public entities of which 
they are instrumentalities. The Department understands that the 
financial relationships between these entities may vary, but the 
Department believes that the method of calculating population it has 
adopted will generally be the clearest and most effective way for 
public entities to determine the applicable compliance time frame.
    Some commenters associated with educational entities suggested 
that the Department use the Carnegie classification system for 
purposes of determining when they must first comply with subpart H 
of this part. The Carnegie classification system takes into account 
factors that are not relevant to subpart H, such as the nature of 
the degrees offered (e.g., baccalaureate versus associate's 
degrees).\89\ Subpart H treats educational entities the same as 
other public entities for purposes of determining the applicable 
compliance time frame, which promotes consistency and reliability.
---------------------------------------------------------------------------

    \89\ See Am. Council on Educ., Carnegie Classification of 
Institutions of Higher Education, https://carnegieclassifications.acenet.edu/ [https://perma.cc/Q9JZ-GQN3]; 
Am. Council on Educ., About the Carnegie Classification, https://carnegieclassifications.acenet.edu/carnegie-classification/ [https://perma.cc/B6BH-68WM].
---------------------------------------------------------------------------

    Other commenters suggested that factors such as number of 
employees, budget, number and type of services provided, and web 
presence be used to determine the appropriate compliance time frame. 
However, the Department believes that using population as determined 
by the Census Bureau is the clearest, most predictable, and most 
reliable factor for determining the compliance time frame. At least 
one commenter highlighted that population size often relates to the 
audience of people with disabilities that a public entity serves 
through its web content and mobile apps. In addition, the Regulatory 
Flexibility Act uses population size to define what types of 
governmental jurisdictions qualify as ``small.'' \90\ This concept, 
therefore, should be familiar to public entities. Additionally, 
using population allows the Department to account for the unique 
challenges faced by small public entities, as discussed in the 
section-by-section analysis of Sec.  35.200(b)(2).
---------------------------------------------------------------------------

    \90\ 5 U.S.C. 601(5).
---------------------------------------------------------------------------

    The Department also received comments asserting that the 
threshold for being considered ``small'' should be changed and that 
the Department should create varying compliance dates based on 
additional gradations of public entity size. The Department believes 
it is most appropriate to rely on the 50,000 threshold--which is

[[Page 31353]]

drawn from and consistent with the Regulatory Flexibility Act--to 
promote consistency and predictability for public entities. Creating 
additional categories and compliance time frames would likely result 
in an unnecessary patchwork of obligations that would make it more 
difficult for public entities to understand their compliance 
obligations and for individuals with disabilities to understand 
their rights. The approach in subpart H of this part preserves the 
balance between public entities' needs to prepare for costs and 
individuals with disabilities' needs to access online services, 
programs, and activities. In addition, breaking down the size 
categories for compliance dates further could lead to an arbitrary 
selection of the appropriate size cutoff. The Department selected 
the size cutoff of 50,000 persons in part because the Regulatory 
Flexibility Act defines ``small governmental jurisdictions'' as 
those with a population of less than 50,000.\91\ Selecting a 
different size cutoff would require estimating the appropriate size 
to use, and without further input from the public, it could lead to 
an arbitrary selection inconsistent with the needs of public 
entities. Because of this, the Department believes the most prudent 
approach is to retain the size categories that are consistent with 
those outlined in the Regulatory Flexibility Act. The Department 
also believes that retaining two categories of public entities--
large and small--strikes the appropriate balance of acknowledging 
the compliance challenges that small public entities may face while 
not crafting a system that is unduly complex, unpredictable, or 
inconsistent across public entities.
---------------------------------------------------------------------------

    \91\ See id.
---------------------------------------------------------------------------

Section 35.200(b)(1): Larger Public Entities

    Section 35.200(b)(1) sets forth the web content and mobile app 
accessibility requirements for public entities with a total 
population of 50,000 or more. The requirements of Sec.  35.200(b)(1) 
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.\92\ Section 
35.200(b)(1) requires that beginning two years after the publication 
of the final rule, these public entities must ensure that the web 
content and mobile apps that they provide or make available \93\ 
comply with Level A and Level AA success criteria and conformance 
requirements specified in WCAG 2.1, unless the entities 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.\94\
---------------------------------------------------------------------------

    \92\ Id.
    \93\ As the regulatory text for Sec.  35.200(a)(1) and (2) and 
(b)(1) and (2) makes clear, subpart H of this part covers web 
content and mobile apps that a public entity provides or makes 
available, whether directly or through contractual, licensing, or 
other arrangements. This regulatory text is discussed in more detail 
in this section.
    \94\ The undue financial and administrative burdens limitation 
on a public entity's obligation to comply with the requirements of 
subpart H of this part is discussed in more detail in the section-
by-section analysis of Sec.  35.204.
---------------------------------------------------------------------------

    As discussed previously in this appendix, the Department 
received varied feedback from the public regarding an appropriate 
time frame for requiring public entities to begin complying with 
subpart H of this part. Individuals with disabilities and 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. Such 
commenters also emphasized that a longer compliance time frame would 
prolong the time that individuals with disabilities would not have 
access to critical services offered by public entities, which would 
undermine the purpose of the ADA. Commenters noted that delays in 
compliance may be particularly problematic in contexts such as 
voting and education, where delays could be particularly impactful 
given the time-sensitive nature of these programs. Another commenter 
who supported shorter time frames pointed out that the Department 
has entered into settlements with public entities requiring that 
their websites be made accessible in shorter amounts of time, such 
as a few months.\95\ The Department notes that while such settlement 
agreements serve as important datapoints, those agreements are 
tailored to the specific situation and entity involved and are not 
broadly applicable like a regulation.
---------------------------------------------------------------------------

    \95\ See, e.g., Settlement Agreement Between the United States 
of America and the City of Cedar Rapids, Iowa Under the Americans 
with Disabilities Act (Sept. 1, 2015), https://www.ada.gov/cedar_rapids_pca/cedar_rapids_sa.html [https://perma.cc/Z338-B2BU]; 
Settlement Agreement Between the United States of America and the 
City of Fort Morgan, Colo. Under the Americans with Disabilities Act 
(Aug. 8, 2013), https://www.ada.gov/fort-morgan-pca/fort-morgan-pca-sa.htm [https://perma.cc/JA3E-QYMS]; Settlement Agreement Between 
the United States of America and the Town of Poestenkill, N.Y. Under 
the Americans with Disabilities Act (July 19, 2013), https://www.ada.gov/poestenkill-pca/poestenkill-sa.html [https://perma.cc/DGD5-NNC6].
---------------------------------------------------------------------------

    State and local government entities have been particularly 
concerned--now and in the past--about shorter compliance deadlines, 
often citing budgets and staffing as major limitations. For example, 
as noted in the NPRM, when WCAG 2.0 was relatively new, many public 
entities stated that they lacked qualified personnel to implement 
that standard. 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 fact that over a decade has passed since the 
Department started receiving such feedback and there is now more 
available technology to make web content and mobile apps accessible, 
the Department believes a two-year compliance time frame for public 
entities with a total population of 50,000 or more is appropriate.
    Public entities and the community of web developers have had 
more than a decade to familiarize themselves with WCAG 2.0, which 
was published in 2008 and serves as the foundation for WCAG 2.1, and 
more than five years to familiarize themselves with the additional 
12 Level A and AA success criteria of WCAG 2.1.\96\ The Department 
believes these 12 additional success criteria will not significantly 
increase the time or resources that it will take for a public entity 
to come into compliance with subpart H of this part beyond what 
would have already been required to conform to WCAG 2.0. The 
Department therefore believes that subpart H's approach 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.
---------------------------------------------------------------------------

    \96\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 0.5 
Comparison with WCAG 2.0 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#comparison-with-wcag-2-0 [https://perma.cc/H76F-6L27].
---------------------------------------------------------------------------

Section 35.200(b)(2): Small Public Entities and Special District 
Governments

    Section 35.200(b)(2) sets forth the web content and mobile app 
accessibility requirements for public entities with a total 
population of less than 50,000 and special district governments. As 
noted in the preceding section, the 50,000 population threshold was 
chosen because it corresponds with the definition of ``small 
governmental jurisdictions'' in the Regulatory Flexibility Act.\97\ 
Section 35.200(b)(2) requires that beginning three years after the 
publication of the final rule, these public entities with a total 
population of less than 50,000 and special district governments must 
ensure that the web content and mobile apps that they provide or 
make available \98\ comply with Level A and Level AA success 
criteria and conformance requirements specified in WCAG 2.1, unless 
the entities 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.
---------------------------------------------------------------------------

    \97\ 5 U.S.C. 601(5).
    \98\ As the regulatory text for Sec.  35.200(a)(1) and (2) and 
(b)(1) and (2) makes clear, subpart H of this part covers web 
content and mobile apps that a public entity provides or makes 
available, whether directly or through contractual, licensing, or 
other arrangements. This regulatory text is discussed in more detail 
in this section.
---------------------------------------------------------------------------

Small Public Entities

    The Department appreciates that small public entities may 
sometimes face unique challenges in making their web content and 
mobile apps accessible, given that small entities may have more 
limited or inflexible budgets than other entities. The Department is 
very sensitive to the need to craft a workable approach for small 
entities and has taken the needs of small public entities into 
account at every stage in the rulemaking process, consistent with 
the Regulatory Flexibility Act of 1980 and Executive Order 
13272.\99\ The NPRM asked a series of

[[Page 31354]]

questions about the impact of the rulemaking on small public 
entities, including about the compliance costs and challenges that 
small entities might face in conforming with the rulemaking, the 
current level of accessibility of small public entities' web content 
and mobile apps, and whether it would be appropriate to adopt 
different technical standards or compliance time frames for small 
public entities.\100\
---------------------------------------------------------------------------

    \99\ 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); 88 FR 51949, 51961-51966.
    \100\ 88 FR 51961-51966.
---------------------------------------------------------------------------

    The Department has reviewed public comments, including a comment 
from the Small Business Administration Office of Advocacy,\101\ 
attended a virtual roundtable session hosted by the Small Business 
Administration at which approximately 200 members of the public were 
present, and carefully considered this topic. In light of its review 
and consideration, the Department believes that the most appropriate 
means of reducing burdens for small public entities is to give small 
public entities an extra year to comply with subpart H of this part. 
Accordingly, under Sec.  35.200(b)(2), small public entities, like 
all other public entities, need to conform to WCAG 2.1 Level AA, but 
small public entities have three years, instead of the two years 
provided to larger public entities, to come into compliance. In 
addition, small public entities (like all public entities) can rely 
on the five exceptions set forth in Sec.  35.201, in addition to the 
other mechanisms that are designed to make it feasible for all 
public entities to comply with subpart H of this part, as set forth 
in Sec. Sec.  35.202, 35.203, 35.204 and 35.205.
---------------------------------------------------------------------------

    \101\ A discussion of the comment from the Small Business 
Administration Office of Advocacy can also be found in the Final 
Regulatory Flexibility Analysis.
---------------------------------------------------------------------------

    Many commenters emphasized the challenges that small public 
entities may face in making their web content and mobile apps 
accessible. For example, some commenters reported that small public 
entities often have restricted, inflexible budgets, and might need 
to divert funds away from other government services in order to 
comply with subpart H of this part. Some commenters also asserted 
that the Department underestimated the costs that might be 
associated with bringing small public entities' web content and 
mobile apps into compliance. Some commenters noted that small public 
entities may lack technical expertise and dedicated personnel to 
work on accessibility issues. Commenters asserted that some small 
entities' web-based operations are decentralized, and that these 
entities would therefore need to train a large number of individuals 
on accessibility to ensure compliance. Commenters also contended 
that many small public entities may be dependent on third-party 
vendors to make their content accessible, and that there may be 
shortages in the number of web developers available to assist with 
remediation. Some commenters expressed concern that small entities 
would simply remove their web content rather than make it 
accessible. Commenters also expressed concern that public entities 
would need to devote scarce resources to defending against web 
accessibility lawsuits that might arise as a result of subpart H, 
which might further exacerbate these entities' budgetary challenges. 
The Department notes that public entities would not be required to 
undertake changes that would result in a fundamental alteration in 
the nature of a service, program, or activity, or impose undue 
financial and administrative burdens.
    As a result of these concerns, some commenters suggested that 
the Department should create different or more flexible standards 
for small entities. For example, some commenters suggested that the 
Department should require small entities to conform to WCAG 2.0 
instead of WCAG 2.1, to match the standards that are applicable to 
the Federal Government under section 508. One commenter suggested 
that the Department should require small public entities to comply 
only with WCAG 2.0 Level A, not Level AA. Other commenters 
advocating for small public entities suggested that those entities 
should have more time than larger public entities to comply with 
subpart H of this part, with suggested compliance time frames 
ranging from three to six years. Some commenters suggested the 
Department should adopt extended compliance dates for certain 
requirements of subpart H that may be more onerous. Commenters noted 
that having additional time to comply would help public entities 
allocate financial and personnel resources to bring their websites 
into compliance. A commenter stated that additional compliance time 
would also allow more web developers to become familiar with 
accessibility issues and more digital accessibility consultants to 
emerge, thereby lowering the cost of testing and consulting 
services. A commenter noted that some rural public entities may need 
extra time to bring their content into compliance but asserted that 
the Department should avoid adopting a compliance date so distant 
that it does not provide sufficient urgency to motivate those 
entities to address the issue.
    Although many commenters expressed concerns about the impact of 
subpart H of this part on small public entities, many other 
commenters expressed opposition to creating different standards or 
compliance time frames for small entities. Commenters emphasized 
that people in rural areas might need to travel long distances to 
access in-person services and that such areas may lack public 
transportation or rideshare services. Given those considerations, 
commenters suggested that people with disabilities in small 
jurisdictions need access to web-based local government services 
just as much as, and sometimes more than, their counterparts in 
larger jurisdictions. Some commenters noted that people with 
disabilities may disproportionately reside in small towns or rural 
areas, and that it is therefore especially critical for those small 
and rural governments to have accessible web content and mobile 
apps. One commenter indicated that rural residents are 14.7 percent 
more likely than their urban counterparts to have a disability.\102\ 
Commenters emphasized the problems that may be associated with 
imposing different technical standards based on the size of the 
entity, including a lack of predictability with respect to which 
government services people can expect to be accessible. Commenters 
also noted that people with disabilities have a right to equal 
access to their government's services, regardless of where they 
live, and stated that setting different standards for small public 
entities would undermine that right. One commenter stated that, 
although each small public entity may have only a small population, 
there are a large number of small public entities, meaning that any 
lowering of the standards for small public entities would 
cumulatively affect a large number of people. Some commenters argued 
that setting different substantive standards for small public 
entities could make it challenging to enforce subpart H. Some 
commenters argued that setting different technical standards for 
small public entities would be inconsistent with title II of the 
ADA, which does not set different standards based on the size of the 
entity. One commenter argued that requiring small public entities to 
comply only with Level A success criteria would be inadequate and 
inconsistent with international standards.
---------------------------------------------------------------------------

    \102\ See Katrina Crankshaw, U.S. Census Bureau, Disability 
Rates Higher in Rural Areas than Urban Areas (June 26, 2023), 
https://www.census.gov/library/stories/2023/06/disability-rates-
higher-in-rural-areas-than-urban-
areas.html#:~:text=Examining%20disability%20rates%20across%20geograph
y,ACS)%201%2Dyear%20estimates [https://perma.cc/NP5Y-CUJS].
---------------------------------------------------------------------------

    Commenters also noted that there are many factors that may make 
it easier for small public entities to comply. For example, some 
commenters suggested that small entities may have smaller or less 
complex websites than larger entities. Commenters noted that public 
entities may be able to make use of free, publicly available 
resources for checking accessibility and to save money by 
incorporating accessibility early in the process of content 
creation, instead of as an afterthought. Commenters also noted that 
public entities can avoid taking actions that are unduly burdensome 
by claiming the fundamental alteration or undue burdens limitations 
where appropriate.
    One commenter argued that, because there are a limited number of 
third-party vendors that provide web content for public entities, a 
few major third-party vendors shifting towards accessibility as a 
result of increased demand stemming from subpart H of this part 
could have a cascading effect. This could make the content of many 
entities that use those vendors or their templates accessible by 
default. Commenters also noted that setting different technical 
standards for small public entities would create confusion for those 
attempting to implement needed accessibility changes. One commenter 
also contended that it may benefit small public entities to use a 
more recent version of WCAG because doing so may provide a better 
experience for all members of the public.
    Some commenters pointed out that the challenges small public 
entities may face are not necessarily unique, and that many public 
entities, regardless of size, face budgetary constraints, staffing 
issues, and a need for training. In addition, some commenters noted 
that the size of a public entity may not

[[Page 31355]]

always be a good proxy for the number of people who may need access 
to an entity's website.
    Having carefully considered these comments, the Department 
believes that subpart H of this part strikes the appropriate balance 
by requiring small public entities to comply with the same technical 
standard as larger public entities while giving small public 
entities additional time to do so. The Department believes this 
longer compliance time frame is prudent in recognition of the 
additional challenges that small public entities may face in 
complying, such as limited budgets, lack of technical expertise, and 
lack of personnel. The Department believes that providing an extra 
year for small public entities to comply will give those entities 
sufficient time to properly allocate their personnel and financial 
resources to make their web content and mobile apps conform to WCAG 
2.1 Level AA, without providing so much additional time that 
individuals with disabilities have a reduced level of access to 
their State and local government entities' resources for an extended 
period.
    The Department believes that having provided an additional year 
for small public entities to comply with subpart H of this part, it 
is appropriate to require those entities to comply with the same 
technical standard and conformance level as all other public 
entities. This approach ensures consistent levels of accessibility 
for public entities of all sizes in the long term, which will 
promote predictability and reduce confusion about which standard 
applies. It will allow for individuals with disabilities to know 
what they can expect when navigating a public entity's web content; 
for example, it will be helpful for individuals with disabilities to 
know that they can expect to be able to navigate any public entity's 
web content independently using their assistive technology. It also 
helps to ensure that individuals with disabilities who reside in 
rural areas have comparable access to their counterparts in urban 
areas, which is critical given the transportation and other barriers 
that people in rural areas may face.\103\ In addition, for the 
reasons discussed elsewhere in this appendix, the Department 
believes that WCAG 2.1 Level AA contains success criteria that are 
critical to accessing services, programs, or activities of public 
entities, which may not be included under a lower standard. The 
Department notes that under appropriate circumstances, small public 
entities may also rely on the exceptions, flexibilities, and other 
mechanisms described in the section-by-section analysis of 
Sec. Sec.  35.201, 35.202, 35.203, 35.204, and 35.205, which the 
Department believes should help make compliance feasible for those 
entities.
---------------------------------------------------------------------------

    \103\ See, e.g., NORC Walsh Ctr. for Rural Health Analysis & 
Rural Health Info. Hub, Access to Care for Rural People with 
Disabilities Toolkit (Dec. 2016), https://www.ruralhealthinfo.org/toolkits/disabilities.pdf [https://perma.cc/YX4E-QWEE].
---------------------------------------------------------------------------

    Some commenters suggested that the Department should provide 
additional exceptions or flexibilities to small public entities. For 
example, the Small Business Administration suggested that the 
Department explore developing a wholesale exception to subpart H of 
this part for certain small public entities. The Department does not 
believe that setting forth a wholesale exception for small public 
entities would be appropriate for the same reasons that it would not 
be appropriate to adopt a different technical standard for those 
entities. Such an exception would mean that an individual with a 
disability who lives in a small, rural area, might not have the same 
level of access to their local government's web-based services, 
programs, and activities as an individual with a disability in a 
larger, urban area. This would significantly undermine consistency 
and predictability in web accessibility. It would also be 
particularly problematic given the interconnected nature of many 
different websites. Furthermore, an exception for small public 
entities would reduce the benefits of subpart H of this part for 
those entities. The Department has heard from public entities 
seeking clarity about how to comply with their nondiscrimination 
obligations under title II of the ADA when offering services via the 
web. Promulgating an exception for small public entities from the 
technical standard described in subpart H would not only hinder 
access for individuals with disabilities but would also leave those 
entities with no clear standard for how to satisfy their existing 
obligations under the ADA and the title II regulation.
    Other commenters made alternative suggestions, such as making 
WCAG 2.1 Level AA compliance recommended but not required. The 
Department does not believe this suggestion is workable or 
appropriate. As discussed in the section entitled, ``Inadequacy of 
Voluntary Compliance with Technical Standards,'' and as the last few 
decades have shown, the absence of a mandatory technical standard 
for web content and mobile apps has not resulted in widespread equal 
access for people with disabilities. For subpart H of this part to 
have a meaningful effect, the Department believes it must set forth 
specific requirements so that both individuals with disabilities and 
public entities have clarity and predictability in terms of what the 
law requires. The Department believes that creating a recommended, 
non-mandatory technical standard would not provide this clarity or 
predictability and would instead largely maintain the status quo.
    Some commenters suggested that the Department should allow small 
public entities to avoid making their web content and mobile apps 
accessible by instead offering services to individuals with 
disabilities via the phone, providing an accessibility disclaimer or 
statement, or offering services to individuals with disabilities 
through other alternative methods that are not web-based. As 
discussed in the section entitled ``History of the Department's 
Title II Web-Related Interpretation and Guidance'' and in the 
NPRM,\104\ given the way the modern web has developed, the 
Department no longer believes 24/7 staffed telephone lines can 
realistically provide equal opportunity to individuals with 
disabilities in the way that web content and content in mobile apps 
can. If a public entity provides services, programs, or activities 
to the public via the web or mobile apps, it generally needs to 
ensure that those services, programs, or activities are accessible. 
The Department also does not believe that requirement is met by a 
public entity merely providing an accessibility disclaimer or 
statement explaining how members of the public can request 
accessible web content or mobile apps. If none of a public entity's 
web content or mobile apps were to conform to the technical standard 
adopted in subpart H of this part, individuals with disabilities 
would need to request access each and every time they attempted to 
interact with the public entity's services, programs, or activities, 
which would not provide equal opportunity. Similarly, it would not 
provide equal opportunity to offer services, programs, or activities 
via the web or mobile apps to individuals without disabilities but 
require individuals with disabilities to rely exclusively on other 
methods to access those services.
---------------------------------------------------------------------------

    \104\ 88 FR 51953.
---------------------------------------------------------------------------

    Many commenters also asked the Department to provide additional 
resources and guidance to help small entities comply. The Small 
Business Administration Office of Advocacy also highlighted the need 
for the Department to produce a small entity compliance guide.\105\ 
The Department plans to issue the required small entity compliance 
guide. The Department is also issuing a Final Regulatory Flexibility 
Analysis as part of this rulemaking, which explains the impact of 
subpart H of this part on small public entities. In addition, 
although the Department does not currently operate a grant program 
to assist public entities in complying with the ADA, the Department 
will consider offering additional technical assistance and guidance 
in the future to help entities better understand their obligations. 
The Department also operates a toll-free ADA Information Line at 
(800) 514-0301 (voice) or 1-833-610-1264 (TTY), which public 
entities can call to get technical assistance about the ADA, 
including information about subpart H.
---------------------------------------------------------------------------

    \105\ See Contract with America Advancement Act of 1996, Public 
Law 104-121, sec. 212, 110 Stat. 847, 858 (5 U.S.C. 601 note).
---------------------------------------------------------------------------

    Many commenters also expressed concern about the potential for 
an increase in litigation for small public entities as a result of 
subpart H of this part. Some commenters asked the Department to 
create a safe harbor or other flexibilities to protect small public 
entities from frivolous litigation. In part to address these 
concerns, subpart H includes a new section, at Sec.  35.205, which 
states that a public entity that is not in full compliance with the 
requirements of Sec.  35.200(b) will be deemed to have met the 
requirements of Sec.  35.200 in the limited circumstance in which 
the public entity can demonstrate that the noncompliance has such a 
minimal impact on access that it would not affect the ability of 
individuals with disabilities to use the public entity's web content 
or mobile app in a substantially equivalent manner as individuals 
without disabilities. As discussed at more length in the section-by-
section analysis of Sec.  35.205, the Department

[[Page 31356]]

believes this provision will reduce the risk of litigation for 
public entities while ensuring that individuals with disabilities 
have substantially equivalent access to public entities' services, 
programs, and activities. Section 35.205 will allow public entities 
to avoid falling into noncompliance with Sec.  35.200 if they are 
not exactly in conformance to WCAG 2.1 Level AA, but the 
nonconformance would not affect the ability of individuals with 
disabilities to use the public entity's web content or mobile app 
with substantially equivalent timeliness, privacy, independence, and 
ease of use. The Department believes that this will afford more 
flexibility for all public entities, including small ones, while 
simultaneously ensuring access for individuals with disabilities.
    One commenter asked the Department to state that public 
entities, including small ones, that are working towards conformance 
to WCAG 2.1 Level AA before the compliance dates are in compliance 
with the ADA and not engaging in unlawful discrimination. The 
Department notes that while the requirement to comply with the 
technical standard set forth in subpart H of this part is new, the 
underlying obligation to ensure that all services, programs, and 
activities, including those provided via the web and mobile apps, 
are accessible is not.\106\ Title II currently requires public 
entities to, for example, provide equal opportunity to participate 
in or benefit from services, programs, or activities; \107\ make 
reasonable modifications to policies, practices, or procedures; 
\108\ and ensure that communications with people with disabilities 
are as effective as communications with others, which includes 
considerations of timeliness, privacy, and independence.\109\ 
Accordingly, although public entities do not need to comply with 
subpart H until two or three years after the publication of the 
final rule, they will continue to have to take steps to ensure 
accessibility in the meantime, and will generally have to achieve 
compliance with the technical standard by the date specified in 
subpart H.
---------------------------------------------------------------------------

    \106\ See, e.g., Sec. Sec.  35.130 and 35.160.
    \107\ Sections 35.130(b)(1)(ii) and 35.160(b)(1).
    \108\ Section 35.130(b)(7)(i).
    \109\ Section 35.160.
---------------------------------------------------------------------------

    Some commenters asked the Department to provide additional 
flexibility for small public entities with respect to captioning 
requirements. A discussion of the approach to captioning in subpart 
H of this part can be found in the section entitled ``Captions for 
Live-Audio and Prerecorded Content.'' Some commenters also expressed 
that it would be helpful for small entities if the Department could 
provide additional guidance on how the undue burdens limitation 
operates in practice. Additional information on this issue can be 
found in the section-by-section analysis of Sec.  35.204, entitled 
``Duties.'' Some commenters asked the Department to add a notice-
and-cure provision to subpart H to help protect small entities from 
liability. For the reasons discussed in the section-by-section 
analysis of Sec.  35.205, entitled ``Effect of noncompliance that 
has a minimal impact on access,'' the Department does not believe 
this approach is appropriate.

Special District Governments

    In addition to small public entities, 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 
elsewhere in this appendix, Sec.  35.200 proposes different 
compliance dates according to the size of the Census-defined 
population of the public entity, or, for public entities without 
Census-defined populations, the Census-defined population of any 
State or local governments of which the public entity is an 
instrumentality or commuter authority. The Department believes 
applying to special district governments the same compliance date as 
small public entities (i.e., compliance in three years) is 
appropriate for two reasons. First, because the Census Bureau does 
not provide population estimates for special district governments, 
these limited-purpose public entities might find it difficult to 
obtain population estimates that are objective and reliable in order 
to determine their duties under subpart H of this part. 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 compliance dates in Sec.  35.200. Second, 
although special district governments may sometimes serve a large 
population, unlike counties, cities, or townships with large 
populations that provide a wide range of online government services 
and programs and often 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). They therefore may have more limited 
or specialized budgets. Therefore, Sec.  35.200(b)(2) extends the 
deadline for compliance for special district governments to three 
years, as it does for small public entities.
    The Department notes that some commenters opposed giving special 
district governments three years to comply with subpart H of this 
part. One commenter asserted that most special district governments 
are aware of the size of the regions they serve and would be able to 
determine whether they fall within the threshold for small entities. 
One commenter noted that some special district governments may serve 
larger populations and should therefore be treated like large public 
entities. Another commenter argued that a public entity that has 
sufficient administrative and fiscal autonomy to qualify as a 
separate government should have the means to comply with subpart H 
in a timely manner. However, as noted in the preceding paragraph, 
the Department is concerned that, because these special district 
governments do not have a population calculated by the Census Bureau 
and may not be instrumentalities of a public entity that does have a 
Census-calculated population, it is not clear that there is a 
straightforward way for these governments to calculate their precise 
population. The Department also understands that these governments 
have limited functions and may have particularly limited or 
constrained budgets in some cases. The Department therefore 
continues to believe it is appropriate to give these governments 
three years to comply.

Compliance Time Frame Alternatives

    In addition to asking that the compliance time frames be 
lengthened or shortened, commenters also suggested a variety of 
other alternatives and models regarding how Sec.  35.200's 
compliance time frames could be structured. Commenters proposed that 
existing content be treated differently than new content by, for 
example, requiring that new content be made accessible first and 
setting delayed or deferred compliance time frames for existing 
content. Other commenters suggested that the Department use a 
``runway'' or ``phase in'' model. Under this model, commenters 
suggested, the Department could require conformance to some WCAG 
success criteria sooner than others. Commenters also suggested a 
phase-in model where public entities would be required to prioritize 
certain types of content, such as making all frequently used content 
conform to WCAG 2.1 Level AA first.
    Because Sec.  35.200 gives public entities two or three years to 
come into compliance depending on entity size, public entities have 
the flexibility to structure their compliance efforts in the manner 
that works best for them. This means that if public entities want to 
prioritize certain success criteria or content during the two or 
three years before the compliance date--while still complying with 
their existing obligations under title II--they have the flexibility 
to do so. The Department believes that this flexibility 
appropriately acknowledges that different public entities might have 
unique needs based on the type of content they provide, users that 
they serve, and resources that they have or procure. The Department, 
therefore, is not specifying certain criteria or types of content 
that should be prioritized. Public entities have the flexibility to 
determine how to make sure they comply with Sec.  35.200 in the two- 
or three-year period before which compliance with Sec.  35.200 is 
first required. After the compliance date, ongoing compliance is 
required.
    In addition, the Department believes that requiring only new 
content to be accessible or using another method for prioritization 
could lead to a significant accessibility gap for individuals with 
disabilities if public entities rely on content that is not 
regularly updated or changed. The Department notes that unless 
otherwise covered by an exception, subpart H of this part requires 
that new and existing content be made accessible within the meaning 
of Sec.  35.200 after the date initial compliance is required. 
Because some exceptions in Sec.  35.201 only apply to preexisting 
content, the Department believes it is likely that public entities' 
own newly created or added content will largely need to comply with 
Sec.  35.200 because such content may not qualify for exceptions. 
For more information about how the exceptions under

[[Page 31357]]

Sec.  35.201 function and how they will likely apply to existing and 
new content, please review the analysis of Sec.  35.201 in this 
section-by-section analysis.
    Commenters also suggested that public entities be required to 
create transition plans like those discussed in the existing title 
II regulation at Sec. Sec.  35.105 and 35.150(d). The Department 
does not believe it is appropriate to require transition plans as 
part of subpart H of this part for several reasons. Public entities 
are already required to ensure that their services, programs, and 
activities, including those provided via the web or mobile apps, 
meet the requirements of the ADA. The Department expects that many 
entities already engage in accessibility planning and self-
evaluation to ensure compliance with title II. By not being 
prescriptive about the type of planning required, the Department 
will allow public entities flexibility to build on existing systems 
and processes or develop new ones in ways that work for each entity. 
Moreover, the Department has not adopted new self-evaluation and 
transition plan requirements in other sections in this part in which 
it adopted additional technical requirements, such as in the 2010 
ADA Standards for Accessible Design.\110\ Finally, the Department 
believes that public entities' resources may be better spent making 
their web content and mobile apps accessible under Sec.  35.200, 
instead of drafting required self-evaluation and transition plans. 
The Department notes that public entities can still engage in self-
evaluation and create transition plans, and would likely find it 
helpful, but they are not required to do so under Sec.  35.200.
---------------------------------------------------------------------------

    \110\ Section 35.151.
---------------------------------------------------------------------------

Fundamental Alteration or Undue Financial and Administrative Burdens

    As discussed at greater length in the section-by-section 
analysis of Sec.  35.204, subpart H of this part provides that where 
a public entity can demonstrate that compliance with the 
requirements of Sec.  35.200 would result in a fundamental 
alteration in the nature of a service, program, or activity or in 
undue financial and administrative burdens, compliance with Sec.  
35.200 is only required to the extent that it does not result in a 
fundamental alteration or undue financial and administrative 
burdens. For example, where it would impose undue financial and 
administrative burdens to conform to WCAG 2.1 Level AA (or part of 
WCAG 2.1 Level AA), 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 financially and 
administratively burdensome. These limitations on a public entity's 
duty to comply with the regulatory provisions in subpart H of this 
part mirror the fundamental alteration or undue burdens limitations 
currently provided in the title II regulation in Sec. Sec.  
35.150(a)(3) (existing facilities) and 35.164 (effective 
communication) and the fundamental alteration limitation currently 
provided in the title II regulation in Sec.  35.130(b)(7) 
(reasonable modifications in policies, practices, or procedures).
    If a public entity believes that a proposed action would 
fundamentally alter a service, program, or activity or would result 
in undue financial and administrative burdens, the public entity has 
the burden of proving that compliance would result in such an 
alteration or such burdens. The decision that compliance would 
result in such an alteration or such 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. As set forth 
in Sec.  35.200(b)(1) and (2), if an action required to comply with 
the accessibility standard in subpart H of this part 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. Section 35.204, entitled 
``Duties,'' lays out the circumstances in which an alteration or 
such burdens can be claimed. For more information, see the 
discussion regarding limitations on obligations in the section-by-
section analysis of Sec.  35.204.

Requirements for Selected Types of Content

    In the NPRM, the Department asked questions about the standards 
that should apply to two particular types of content: social media 
platforms and captions for live-audio content.\111\ In this section, 
the Department includes information about the standards that subpart 
H of this part applies to these types of content and responds to the 
comments received on these topics.
---------------------------------------------------------------------------

    \111\ 88 FR 51958, 51962-51963, 51965-51966.
---------------------------------------------------------------------------

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, or activities in lieu of or in addition to 
engaging the public on the public entities' own websites. Consistent 
with the NPRM, 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, X (formerly 
Twitter), and LinkedIn).
    Subpart H of this part requires that web content and mobile apps 
that public entities provide or make available, directly or through 
contractual, licensing, or other arrangements, be made accessible 
within the meaning of Sec.  35.200. This requirement applies 
regardless of whether that content is located on the public entity's 
own website or mobile app or elsewhere on the web or in mobile apps. 
The requirement therefore covers web content or content in a mobile 
app that a public entity makes available via a social media 
platform. With respect to social media posts that are posted before 
the compliance date, however, the Department has decided to add an 
exception, which is explained more in the section-by-section 
analysis of Sec.  35.201(e), ``Preexisting Social Media Posts''.
    Many social media platforms that are widely used by members of 
the public are available to members of the public separate and apart 
from any arrangements with public entities to provide a service, 
program, or activity. As a result, subpart H of this part does not 
require public entities to ensure that such platforms themselves 
conform to WCAG 2.1 Level AA. However, because the posts that public 
entities disseminate through those platforms are provided or made 
available by the public entities, the posts generally must conform 
to WCAG 2.1 Level AA. 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 platforms.\112\ For example, if a public 
entity posts an image to a social media platform that allows users 
to include alt text, the public entity needs to ensure that 
appropriate alt text accompanies that image so that screen-reader 
users can access the information.
---------------------------------------------------------------------------

    \112\ See U.S. Gen. Servs. Admin., Federal Social Media 
Accessibility Toolkit Hackpad, https://digital.gov/resources/federal-social-media-accessibility-toolkit-hackpad/ [https://perma.cc/DJ8X-UCHA] (last visited Mar. 13, 2024).
---------------------------------------------------------------------------

    The Department received many comments explaining the importance 
of social media to accessing public entities' services, programs, or 
activities. Both public entities and disability advocates shared 
many examples of public entities using social media to transmit 
time-sensitive and emergency information, among other information, 
to the public. The vast majority of these commenters supported 
covering social media posts in subpart H of this part. Commenters 
specifically pointed to examples of communications designed to help 
the public understand what actions to take during and after public 
emergencies, and commenters noted that these types of communications 
need to be accessible to individuals with disabilities. Commenters 
from public entities and trade groups representing public 
accommodations opposed the coverage of social media posts in subpart 
H, arguing that social media is more like advertising. These 
commenters also said it is difficult to make social media content 
accessible because the platforms sometimes do not enable 
accessibility features.
    The Department agrees with the many commenters who opined that 
social media posts should be covered by subpart H of this part. The 
Department believes public entities should not be relieved from 
their duty under subpart H to provide accessible content to the 
public simply because that content is being provided through a 
social media platform. The Department was particularly persuaded by 
the many examples that commenters shared of emergency and time-
sensitive communications that public entities share

[[Page 31358]]

through social media platforms, including emergency information 
about toxic spills and wildfire smoke, for example. The Department 
believes that this information must also be accessible to 
individuals with disabilities. The fact that public entities use 
social media platforms to disseminate this type of crucial 
information also belies any analogy to advertising. And even to the 
extent that information does not rise to the level of an emergency, 
if an entity believes information is worth posting on social media 
for members of the public without disabilities, it is no less 
important for that information to reach members of the public with 
disabilities. Therefore, the entity cannot deny individuals with 
disabilities equal access to that content, even if it is not about 
an emergency.
    The Department received several comments explaining that social 
media platforms sometimes have limited accessibility features, which 
can be out of public entities' control. Some of these commenters 
suggested that the Department should prohibit or otherwise limit a 
public entity's use of inaccessible social media platforms when the 
public entity cannot ensure accessibility of the platform. Other 
commenters shared that even where there are accessibility features 
available, public entities frequently do not use them. The most 
common example of this issue was public entities failing to use alt 
text, and some commenters also shared that public entities 
frequently use inaccessible links. Several commenters also suggested 
that the Department should provide that where the same information 
is available on a public entity's own accessible website, public 
entities should be considered in compliance with this part even if 
their content on social media platforms cannot be made entirely 
accessible.
    The Department declines to modify subpart H of this part in 
response to these commenters, because the Department believes the 
framework in subpart H balances the appropriate considerations to 
ensure equal access to public entities' postings to social media. 
Public entities must use available accessibility features on social 
media platforms to ensure that their social media posts comply with 
subpart H. However, where public entities do not provide social 
media platforms as part of their services, programs, or activities, 
they do not need to ensure the accessibility of the platform as a 
whole. Finally, the Department is declining to adopt the alternative 
suggested by some commenters that where the same information is 
available on a public entity's own accessible website, the public 
entity should be considered in compliance with subpart H. The 
Department heard concerns from many commenters about allowing 
alternative accessible versions when the original content itself can 
be made accessible. Disability advocates and individuals with 
disabilities shared that this approach has historically resulted in 
inconsistent and dated information on the accessible version and 
that this approach also creates unnecessary segregation between the 
content available for individuals with disabilities and the original 
content. The Department agrees with these concerns and therefore 
declines to adopt this approach. Social media posts enable effective 
outreach from public entities to the public, and in some cases 
social media posts may reach many more people than a public entity's 
own website. The Department sees no acceptable reason why 
individuals with disabilities should be excluded from this outreach.
    The Department received a few other comments related to social 
media, suggesting for example that the Department adopt guidance on 
making social media accessible instead of covering social media in 
subpart H of this part, and suggesting that the Department require 
inclusion of a disclaimer with contact information on social media 
platforms so that the public can notify a public entity about 
inaccessible content. The Department believes that these proposals 
would be difficult to implement in a way that would ensure content 
is proactively made accessible, rather than reactively corrected 
after it is discovered to be inaccessible, and thus the Department 
declines to adopt these proposals.

Captions for Live-Audio and Prerecorded Content

    WCAG 2.1 Level AA Success Criterion 1.2.4 requires captions for 
live-audio content in synchronized media.\113\ 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 other significant audio.'' \114\ 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.
---------------------------------------------------------------------------

    \113\ W3C, Understanding WCAG 2.0: Captions (Live), 
Understanding SC 1.2.4 (2023), http://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-real-time-captions.html [https://perma.cc/NV74-U77R].
    \114\ Id. (emphasis in original).
---------------------------------------------------------------------------

    As proposed in the NPRM,\115\ subpart H of this part applies the 
same compliance dates (determined primarily by size of public 
entity) to all of the WCAG 2.1 Level AA success criteria, including 
live-audio captioning requirements. As stated in Sec.  35.200(b), 
this provides 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. Subpart H takes this 
approach for several reasons. First, the Department understands that 
live-audio captioning technology 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. 
Further, the Department believes that requiring conformance to all 
success criteria by the same date (according to entity size) will 
address the need for both clarity for public entities and 
predictability for individuals with disabilities. As with any other 
success criterion, public entities would not be required to satisfy 
Success Criterion 1.2.4 if they can demonstrate that doing so would 
result in a fundamental alteration in the nature of a service, 
program, or activity or in undue financial and administrative 
burdens.
---------------------------------------------------------------------------

    \115\ 88 FR 51965-51966.
---------------------------------------------------------------------------

    The Department solicited comments to inform this approach, 
seeking input on the proposed compliance timeline, the type of live-
audio content that entities make available through the web or mobile 
apps, and the cost of providing captioning for live-audio content 
for entities of all sizes.\116\ Commenters expressed strong support 
for requiring captions as a general matter, noting that they benefit 
people with a variety of disabilities, including those who are deaf, 
deafblind, or neurodivergent, or have auditory processing 
disabilities. No commenters argued for an outright exception to the 
captioning requirement. The vast majority of commenters who 
responded to these questions, including disability advocates, public 
entities, and accessible technology industry members, agreed with 
the Department's proposal to require compliance with requirements 
for captioning live-audio content on the same timeline as all other 
WCAG 2.1 Level AA success criteria. Such commenters noted that a 
different compliance timeline for live-audio captioning would 
unfairly burden people who are deaf or have hearing loss and would 
limit their access to a wide swath of content. One commenter who had 
worked in higher education, for instance, noted challenges of 
providing live-audio captioning, including the limited number of 
captioners available and resulting need for lead time to reserve 
one, but nonetheless stated that entities should strive for the same 
compliance date.
---------------------------------------------------------------------------

    \116\ 88 FR 51965-51966.
---------------------------------------------------------------------------

    A smaller number of commenters urged the Department to adopt a 
longer compliance time frame in order to allow live-captioning 
technology to develop further. Some of these commenters supported a 
longer time frame for smaller entities in particular, which may have 
fewer resources or budgetary flexibility to comply. Others supported 
a longer time frame for larger entities because they are likely to 
have more content to caption. Commenters also noted the difficulty 
that public entities sometimes encounter in the availability of 
quality professional live captioners and the lead time necessary to 
reserve those services, but at the same time noted that public 
entities do not necessarily want to rely on automatically generated 
captioning in all scenarios because it may be insufficient for an 
individual's needs.
    Commenters shared that public entities make many types of live-
audio content available, including town hall meetings, board 
meetings, and other public engagement meetings; emergency-related 
and public-service announcements or information; special events like 
graduations, conferences, or symposia; online courses; and press 
conferences. Commenters also posed questions about whether Success 
Criterion

[[Page 31359]]

1.2.4 would apply to particular situations and types of media. The 
Department suggests referring to the explanation and definitions of 
the terms in Success Criterion 1.2.4 in WCAG 2.1 to determine the 
live-audio web content and content in mobile apps that must have 
captions.
    Success Criterion 1.2.4 is crucial for individuals with 
disabilities to access State and local government entities' live 
services, programs, or activities. The Department believes that 
setting a different compliance date would only delay this essential 
access and leave people who are deaf or have hearing disabilities at 
a particular disadvantage in accessing these critical services. It 
also would hinder access for people with a variety of other 
disabilities, including cognitive disabilities.\117\
---------------------------------------------------------------------------

    \117\ See W3C, Web Accessibility Initiative, Video Captions, 
https://www.w3.org/WAI/perspective-videos/captions/ [https://perma.cc/QW6X-5SPG] (Jan. 23, 2019) (explaining that captions 
benefit ``people with cognitive and learning disabilities who need 
to see and hear the content to better understand it'').
---------------------------------------------------------------------------

    The Department believes that the compliance dates set forth in 
subpart H of this part will give public entities sufficient time to 
locate captioning resources and implement or enhance processes to 
ensure they can get captioning services when needed. Captioning 
services are also likely to continue to expand. Given the quick 
acceleration in the availability of captioning technology during the 
COVID-19 pandemic, the Department believes that public entities' 
capacity as well as the technology and personnel on which they rely 
will be able to continue to develop quickly.
    The Department declines to establish a different compliance time 
frame for Success Criterion 1.2.4 for other reasons as well. This 
success criterion in WCAG 2.1 was also part of WCAG 2.0, which was 
finalized in 2008. As a result, the Department expects that public 
entities and associated web developers will be able to become 
familiar with it quickly, if they are not already familiar. 
Additionally, setting a separate compliance date for one success 
criterion could result in confusion and additional difficulty, as 
covered entities would need to separately keep track of when they 
need to meet the live-audio captioning success criterion and 
bifurcate their compliance planning. The Department also does not 
see a sufficient reason to distinguish this success criterion from 
others as meriting a separate timeline, particularly when this 
criterion has existed since 2008 and is so essential for individuals 
who are deaf or have hearing disabilities. For these reasons, and 
because of the need for individuals with disabilities to access 
State and local government entities' live programs, services, and 
activities, subpart H of this part establishes a uniform compliance 
date for all success criteria in subpart H.
    Commenters also expressed a range of opinions about whether 
using automatically generated captions instead of professional live-
captioning services would be sufficient to comply with Success 
Criterion 1.2.4. These commenters noted that automatic captions are 
a widely available option that is low cost for public entities and 
will likely continue to improve, perhaps eventually surpassing the 
quality of professional live-captioning services. However, 
commenters also pointed out that automatic captions may not be 
sufficient in many contexts such as virtual classrooms or 
courtrooms, where mistakes in identifying a speaker, word, or 
punctuation can significantly change the meaning and the participant 
with a disability needs to be able to respond in real time. 
Commenters also argued, though, that requiring human captioners in 
all circumstances may lead to public entities making fewer meetings, 
hearings, courses, and other live-audio content available online due 
to cost and availability of captioners, which could have a 
detrimental effect on overall access to these services for people 
with mobility and other disabilities. Public entities noted that 
automatic captioning as part of services like Zoom does not cost 
them anything beyond the Zoom license, but public entities and the 
Small Business Administration reported that costs can be much higher 
for human-generated captions for different types of content over the 
course of a year.
    To balance these competing concerns, commenters supported 
requiring captions in general, but proposed a variety of tiered 
approaches such as: a default of human-generated captions with 
automatic captions as a last resort; automatic captions as a default 
with human-generated captions when an individual with a disability 
requests them; or human-generated captions as a default for events 
with a wide audience like graduations, but automatic captions as a 
default for private meetings and courses, unless human-generated 
captions are requested. An accessible technology industry member 
urged the Department to just require captions that provide 
``equivalent access'' to live-audio content, rather than mandate a 
particular type of captioning.
    After consideration of commenters' concerns and its independent 
assessment, the Department does not believe it is prudent to 
prescribe captioning requirements beyond the WCAG 2.1 Level AA 
requirements, whether by specifying a numerical accuracy standard, a 
method of captioning that public entities must use to satisfy this 
success criterion, or other measures. The Department recognizes 
commenters' concerns that automatic captions are currently not 
sufficiently accurate in many contexts, including contexts involving 
technical or complex issues. The Department also notes that informal 
guidance from W3C provides that automatic captions are not 
sufficient on their own unless they are confirmed to be fully 
accurate, and that they generally require editing to reach the 
requisite level of accuracy.\118\ On the other hand, the Department 
recognizes the significant costs and supply challenges that can 
accompany use of professional live-captioning services, and the 
pragmatic concern that a requirement to use these services for all 
events all the time could discourage public entities from conducting 
services, programs, or activities online, which could have 
unintended detrimental consequences for people with and without 
disabilities who benefit from online offerings. Further, it is the 
Department's understanding, supported by comments, that captioning 
technology is rapidly evolving and any additional specifications 
regarding how to meet WCAG 2.1's live-audio captioning requirements 
could quickly become outdated.
---------------------------------------------------------------------------

    \118\ W3C, Web Accessibility Initiative, Captions/Subtitles, 
https://www.w3.org/WAI/media/av/captions [https://perma.cc/D73P-RBZA] (July 14, 2022).
---------------------------------------------------------------------------

    Rather than specify a particular accuracy level or method of 
satisfying Success Criterion 1.2.4 at this time, subpart H of this 
part provides public entities with the flexibility to determine the 
best way to comply with this success criterion based on current 
technology. The Department further encourages public entities to 
make use of W3C's and others' guidance documents available on 
captioning, including the informal guidance mentioned in the 
preceding paragraph.\119\ In response to commenters' concerns that 
captioning requirements could lead to fewer online events, the 
Department reminds public entities that, under Sec.  35.204, they 
are not required to take any action that would result in a 
fundamental alteration to their services, programs, or activities or 
undue financial and administrative burdens; but even in those 
circumstances, public entities must comply with Sec.  35.200 to the 
maximum extent possible. The Department believes the approach in 
subpart H strikes the appropriate balance of increasing access for 
individuals with disabilities, keeping pace with evolving 
technology, and providing a workable standard for public entities.
---------------------------------------------------------------------------

    \119\ E.g., W3C, Web Accessibility Initiative, Captions/
Subtitles, https://www.w3.org/WAI/media/av/captions [https://perma.cc/D73P-RBZA] (July 14, 2022); W3C, WCAG 2.2 Understanding 
Docs: Understanding SC 1.2.4: Captions (Live) (Level AA), https://www.w3.org/WAI/WCAG22/Understanding/captions-live.html [https://perma.cc/R8SZ-JA6Z] (Mar. 7, 2024).
---------------------------------------------------------------------------

    Some commenters expressed similar concerns related to captioning 
requirements for prerecorded (i.e., non-live) content under Success 
Criterion 1.2.2, including concerns that public entities may choose 
to remove recordings of past events such as public hearings and 
local government sessions rather than comply with captioning 
requirements in the required time frames. The Department recommends 
that public entities consider other options that may alleviate 
costs, such as evaluating whether any exceptions apply, depending on 
the particular circumstances. And as with live-audio captioning, 
public entities can rely on the fundamental alteration or undue 
burdens provisions in Sec.  35.204 where they can satisfy the 
requirements of those provisions. Even where a public entity can 
demonstrate that conformance to Success Criterion 1.2.2 would result 
in a fundamental alteration or undue financial and administrative 
burdens, the Department believes public entities may often be able 
to take other actions that do not result in such an alteration or 
such burdens; if they can, Sec.  35.204 requires them to do so.
    The same reasoning discussed regarding Success Criterion 1.2.4 
also applies to

[[Page 31360]]

Success Criterion 1.2.2. The Department declines to adopt a separate 
timeline for this success criterion or to prescribe captioning 
requirements beyond those in WCAG 2.1 due to rapidly evolving 
technology, the importance of these success criteria, and the other 
factors already noted. After full consideration of all the comments 
received, subpart H of this part requires conformance to WCAG 2.1 
Level AA as a whole on the same compliance time frame, for all of 
the reasons stated in this section.

Section 35.201 Exceptions

    Section 35.200 requires public entities to make their web 
content and mobile apps accessible by complying with a technical 
standard for accessibility--WCAG 2.1 Level AA. However, some types 
of content do not have to comply with the technical standard in 
certain situations. The Department's aim in setting forth exceptions 
was to make sure that individuals with disabilities have ready 
access to public entities' web content and mobile apps, especially 
those that are current, commonly used, or otherwise widely needed, 
while also ensuring that practical compliance with subpart H of this 
part is feasible and sustainable for public entities. The exceptions 
help to ensure that compliance with subpart H is feasible by 
enabling public entities to focus their resources on making 
frequently used or high impact content WCAG 2.1 Level AA compliant 
first.
    Under Sec.  35.201, the following types of content generally do 
not need to comply with the technical standard for accessibility--
WCAG 2.1 Level AA: (1) archived web content; (2) preexisting 
conventional electronic documents, unless they are currently used to 
apply for, gain access to, or participate in the public entity's 
services, programs, or activities; (3) content posted by a third 
party; (4) individualized, password-protected or otherwise secured 
conventional electronic documents; and (5) preexisting social media 
posts. The Department notes that if web content or content in mobile 
apps is covered by one exception, the content does not need to 
conform to WCAG 2.1 Level AA to comply with subpart H of this part, 
even if the content fails to qualify for another exception.
    However, as discussed in more detail later in this section-by-
section analysis, there may be situations in which the content 
otherwise covered by an exception must still be made accessible to 
meet the needs of an individual with a disability under existing 
title II requirements.\120\ Because these exceptions are 
specifically tailored to address what the Department understands to 
be existing areas where compliance might be particularly difficult 
based on current content types and technologies, the Department also 
expects that these exceptions may become less relevant over time as 
new content is added and technology changes.
---------------------------------------------------------------------------

    \120\ See Sec. Sec.  35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------

    The previously listed exceptions are those included in Sec.  
35.201. They differ in some respects from those exceptions proposed 
in the NPRM. The Department made changes to the proposed exceptions 
identified in the NPRM after consideration of the public comments 
and its own independent assessment. Notably, Sec.  35.201 does not 
include exceptions for password-protected course content in 
elementary, secondary, and postsecondary schools, which had been 
proposed in the NPRM.\121\ As will be discussed in more detail, it 
also does not include an exception for linked third-party content 
because that proposed exception would have been redundant and could 
have caused confusion. In the NPRM, the Department discussed the 
possibility of including an exception for public entities' 
preexisting social media posts.\122\ After consideration of public 
feedback, Sec.  35.201 includes such an exception. In addition, the 
Department made some technical tweaks and clarifications to the 
exceptions.\123\
---------------------------------------------------------------------------

    \121\ 88 FR 52019.
    \122\ Id. at 51962-51963.
    \123\ Id. at 52019-52020.
---------------------------------------------------------------------------

    The Department heard a range of views from public commenters on 
the exceptions proposed in the NPRM. The Department heard from some 
commenters that exceptions are necessary to avoid substantial 
burdens on public entities and would help public entities determine 
how to allocate their limited resources in terms of which content to 
make accessible more quickly, especially when initially determining 
how best to ensure they can start complying with Sec.  35.200 by the 
compliance date. The Department heard that public entities often 
have large volumes of content that are archived, or documents or 
social media posts that existed before subpart H of this part was 
promulgated. The Department also heard that although making this 
content available online is important for transparency and ease of 
access, this content is typically not frequently used and is likely 
to be of interest only to a discrete population. Such commenters 
also emphasized that making such content, like old PDFs, accessible 
by the compliance date would be quite difficult and time consuming. 
Some commenters also expressed that the exceptions may help public 
entities avoid uncertainty about whether they need to ensure 
accessibility in situations where it might be extremely difficult--
such as for large quantities of archived materials retained only for 
research purposes or where they have little control over content 
posted to their website by unaffiliated third parties. Another 
commenter noted that public entities may have individualized 
documents that apply only to individual members of the public and 
that in most cases do not need to be accessed by a person with a 
disability.
    On the other hand, the Department has also heard from commenters 
who objected to the inclusion of exceptions. Many commenters who 
objected to the inclusion of exceptions cited the need for all of 
public entities' web content and mobile apps to be accessible to 
better ensure predictability and access for individuals with 
disabilities to critical government services. Some commenters who 
opposed including exceptions also asserted that a title II 
regulation need not include any exceptions to its specific 
requirements because the compliance limitation for undue financial 
and administrative burdens would suffice to protect public entities 
from any overly burdensome requirements. Some commenters argued that 
the exceptions would create loopholes that would result in public 
entities not providing sufficient access for individuals with 
disabilities, which could undermine the purpose of subpart H of this 
part.
    Commenters also contended that the proposed exceptions create 
confusion about what is covered and needs to conform to WCAG 2.1, 
which creates difficulties with compliance for public entities and 
barriers for individuals with disabilities seeking to access public 
entities' web content or mobile apps. Some commenters also noted 
that there are already tools that can help public entities make web 
content and mobile apps accessible, such that setting forth 
exceptions for certain content is not necessary to help public 
entities comply.
    After consideration of the various public comments and after its 
independent assessment, the Department is including, with some 
refinements, five exceptions in Sec.  35.201. As noted in the 
preceding paragraphs and as will be discussed in greater detail, the 
Department is not including in the final regulations three of the 
exceptions that were proposed in the NPRM, but the Department is 
also adding an exception for preexisting social media posts that it 
previewed in the NPRM. The five particular exceptions included in 
Sec.  35.201 were crafted with careful consideration of which 
discrete types of content would promote as much clarity and 
certainty as possible for individuals with disabilities as well as 
for public entities when determining which content must conform to 
WCAG 2.1 Level AA, while also still promoting accessibility of web 
content and mobile apps overall. The limitations for actions that 
would require fundamental alterations or result in undue burdens 
would not provide, on their own, the same level of clarity and 
certainty. The rationales with respect to each individual exception 
are discussed in more detail in the section-by-section analysis of 
each exception. The Department believes that including these five 
exceptions, and clarifying situations in which content covered by an 
exception might still need to be made accessible, strikes the 
appropriate balance between ensuring access for individuals with 
disabilities and feasibility for public entities so that they can 
comply with Sec.  35.200, which will ensure greater accessibility 
moving forward.
    The Department was mindful of the pragmatic concern that, should 
subpart H of this part require actions that are likely to result in 
fundamental alterations or undue burdens for large numbers of public 
entities or large swaths of their content, subpart H could in 
practice lead to fewer impactful improvements for accessibility 
across the board as public entities encountered these limitations. 
The Department believes that such a rule could result in public 
entities' prioritizing accessibility of content that is ``easy'' to 
make accessible, rather than content that is essential, despite the 
spirit and letter of the rule. The Department agrees with commenters 
that clarifying that public

[[Page 31361]]

entities do not need to focus resources on certain content helps 
ensure that public entities can focus their resources on the large 
volume of content not covered by exceptions, as that content is 
likely more frequently used or up to date. In the sections that 
follow, the Department provides explanations for why the Department 
has included each specific exception and how the exceptions might 
apply.
    The Department understands and appreciates that including 
exceptions for certain types of content reduces the content that 
would be accessible at the outset to individuals with disabilities. 
The Department aimed to craft the exceptions with an eye towards 
providing exceptions for content that would be less commonly used by 
members of the public and would be particularly difficult for public 
entities to make accessible quickly. And the Department reiterates 
that subpart H of this part is adding specificity into the existing 
title II regulatory framework when it comes to web content and 
mobile apps. The Department emphasizes that, even if certain content 
does not have to conform to the technical standard, public entities 
still need to ensure that their services, programs, and activities 
offered using web content and mobile apps are accessible to 
individuals with disabilities on a case-by-case basis in accordance 
with their existing obligations under title II of the ADA. These 
obligations include making reasonable modifications to avoid 
discrimination on the basis of disability, ensuring that 
communications with people with disabilities are as effective as 
communications with people without disabilities, and providing 
people with disabilities an equal opportunity to participate in or 
benefit from the entity's services, programs, and activities.\124\ 
For example, a public entity might need to provide a large print 
version or a version of an archived document that implements some 
WCAG criteria--such as a document explaining park shelter options 
and rental prices from 2013--to a person with vision loss who 
requests it, even though this content would fall within the archived 
web content exception. Thus, Sec.  35.201's exceptions for certain 
categories of content are layering specificity onto title II's 
regulatory requirements. They do not function as permanent or 
blanket exceptions to the ADA's nondiscrimination mandate. They also 
do not add burdens on individuals with disabilities that did not 
already exist as part of the existing title II regulatory framework. 
As explained further, nothing in this part prohibits an entity from 
going beyond Sec.  35.200's requirements to make content covered by 
the exceptions fully or partially compliant with WCAG 2.1 Level AA.
---------------------------------------------------------------------------

    \124\ See Sec. Sec.  35.130(b)(1)(ii) and (b)(7) and 35.160. For 
more information about public entities' existing obligation to 
ensure that communications with individuals with disabilities are as 
effective as communications with others, see U.S. Dep't of Just., 
ADA Requirements: Effective Communication, ada.gov (Feb 28, 2020), 
https://www.ada.gov/resources/effective-communication/ [https://perma.cc/CLT7-5PNQ].
---------------------------------------------------------------------------

    The following discussion provides information on each of the 
exceptions, including a discussion of public comments.

Archived Web Content

    Public entities may retain a significant amount of archived 
content, which may contain information that is outdated, 
superfluous, or replicated elsewhere. The Department's understanding 
is that, generally, this historic information is of interest to only 
a small segment of the general population. 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 that public entities created in the 
past and that they may need or want to make available on their 
websites. Thus, Sec.  35.201(a) provides an exception from the 
requirements of Sec.  35.200 for web content that meets the 
definition of ``archived web content'' in Sec.  35.104.\125\ As 
mentioned previously, the definition of ``archived web content'' in 
Sec.  35.104 has four parts. First, the web content was created 
before the date the public entity is required to comply with subpart 
H of this part, reproduces paper documents created before the date 
the public entity is required to comply with subpart H, or 
reproduces the contents of other physical media created before the 
date the public entity is required to comply with subpart H. Second, 
the web content is retained exclusively for reference, research, or 
recordkeeping. Third, the web content is not altered or updated 
after the date of archiving. Fourth, the web content is organized 
and stored in a dedicated area or areas clearly identified as being 
archived. The archived web content exception allows public entities 
to retain historic web content, while utilizing their resources to 
make accessible the most widely and consistently used content that 
people need to access public services or to participate in civic 
life.
---------------------------------------------------------------------------

    \125\ In the NPRM, Sec.  35.201(a) referred to archived web 
content as defined in Sec.  35.104 ``of this chapter.'' 88 FR 52019. 
The Department has removed the language ``of this chapter'' because 
it was unnecessary.
---------------------------------------------------------------------------

    The Department anticipates that public entities may retain 
various types of web content consistent with the exception for 
archived web content. For example, a town might create a web page 
for its annual parade. In addition to providing current information 
about the time and place of the parade, the web page might contain a 
separate archived section with several photos or videos from the 
parade in past years. The images and videos would likely be covered 
by the exception if they were created before the date the public 
entity is required to comply with subpart H of this part, are 
reproductions of paper documents created before the date the public 
entity is required to comply with subpart H, or are reproductions of 
the contents of other physical media created before the date the 
public entity is required to comply with subpart H; they are only 
used for reference, research, or recordkeeping; they are not altered 
or updated after they are posted in the archived section of the web 
page; and the archived section of the web page is clearly 
identified. Similarly, a municipal court may have a web page that 
includes links to download PDF documents that contain a photo and 
short biography of past judges who are retired. If the PDF documents 
were created before the date the public entity is required to comply 
with subpart H, are reproductions of paper documents created before 
the date the public entity is required to comply with subpart H, or 
are reproductions of the contents of other physical media created 
before the date the public entity is required to comply with subpart 
H; they are only used for reference, research, or recordkeeping; 
they are not altered or updated after they are posted; and the web 
page with the links to download the documents is clearly identified 
as being an archive, the documents would likely be covered by the 
exception. The Department reiterates that these examples are meant 
to be illustrative and that the analysis of whether a given piece of 
web content meets the definition of ``archived web content'' depends 
on the specific circumstances.
    The Department recognizes, and commenters emphasized, that 
archived 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. Furthermore, some commenters expressed concerns that 
public entities would begin (or already are in some circumstances) 
improperly moving content into an archive. The Department emphasizes 
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 
four of the criteria necessary to qualify as ``archived web 
content,'' namely web content that was created before the date the 
public entity is required to comply with subpart H of this part, 
reproduces paper documents created before the date the public entity 
is required to comply with subpart H, or reproduces the contents of 
other physical media created before the date the public entity is 
required to comply with subpart H; is retained 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, then that content would not fall within the exception 
regardless of the date it was created, even if an entity labeled it 
as ``archived'' or stored it in an area clearly identified as being 
archived. Similarly, an entity would not be able to circumvent its 
accessibility obligations by moving web content containing meeting 
minutes or agendas related to meetings that take place after the 
date the public entity is required to comply with subpart H from a 
non-archived section of its website to an archived section, because 
such newly created content would likely not satisfy the first part 
of the definition based on the date it was created. Instead, such

[[Page 31362]]

newly created documents would generally need to conform to WCAG 2.1 
Level AA for their initial intended purpose related to the meetings, 
and they would need to remain accessible if they were later added to 
an area clearly identified as being archived.
    The Department received comments both supporting and opposing 
the exception. In support of the exception, commenters highlighted 
various benefits. For example, commenters noted that remediating 
archived web content can be very burdensome, and the exception 
allows public entities to retain content they might otherwise remove 
if they had to make the content conform to WCAG 2.1 Level AA. Some 
commenters also agreed that public entities should prioritize making 
current and future web content accessible.
    In opposition to the exception, commenters highlighted various 
concerns. For example, some commenters stated that the exception 
perpetuates unequal access to information for individuals with 
disabilities, and it continues to inappropriately place the burden 
on individuals with disabilities to identify themselves to public 
entities, request access to content covered by the exception, and 
wait for the request to be processed. Some commenters also noted 
that the exception is not necessary because the compliance 
limitations for fundamental alteration and undue financial and 
administrative burdens would protect public entities from any 
unrealistic requirements under subpart H of this part.\126\ 
Commenters also stated that the proposed exception is not timebound; 
it does not account for technology that exists, or might develop in 
the future, that may allow for easy and reliable wide-scale 
remediation of archived web content; it might deter development of 
technology that could reliably remediate archived web content; and 
it does not include a time frame for the Department to reassess 
whether the exception is necessary based on technological 
developments.\127\ In addition, commenters stated that the exception 
covers HTML content, which is easier to make accessible than other 
types of web content; and it might cover archived web content posted 
by public entities in accordance with other laws. As previously 
discussed with respect to the definition of ``archived web 
content,'' some commenters also stated that it is not clear when web 
content is retained exclusively for reference, research, or 
recordkeeping, and public entities may therefore improperly 
designate important web content as archived.
---------------------------------------------------------------------------

    \126\ A discussion of the relationship between these limitations 
and the exceptions in Sec.  35.201 is also provided in the general 
explanation at the beginning of the discussion of Sec.  35.201 in 
the section-by-section analysis.
    \127\ The section-by-section analysis of Sec.  35.200 includes a 
discussion of the Department's obligation to do a periodic 
retrospective review of its regulations pursuant to Executive Order 
13563.
---------------------------------------------------------------------------

    The Department has decided to keep the exception in Sec.  
35.201. After reviewing the range of different views expressed by 
commenters, the Department continues to believe that the exception 
appropriately encourages public entities to utilize their resources 
to make accessible the critical up-to-date materials that are most 
consistently used to access public entities' services, programs, or 
activities. The Department believes the exception provides a measure 
of clarity and certainty for public entities about what is required 
of archived web content. Therefore, resources that might otherwise 
be spent making accessible large quantities of historic or otherwise 
outdated information available on some public entities' websites are 
freed up to focus on important current and future web content that 
is widely and frequently used by members of the public. However, the 
Department emphasizes that the exception is not without bounds. As 
discussed in the preceding paragraphs, archived web content must 
meet all four parts of the archived web content definition in order 
to qualify for the exception. Content must meet the time-based 
criteria specified in the first part of the definition. The 
Department believes the addition of the first part of the definition 
will lead to greater predictability about the application of the 
exception for individuals with disabilities and public entities. In 
addition, web content that is used for something other than 
reference, research, or recordkeeping is not covered by the 
exception.
    The Department understands the concerns raised by commenters 
about the burdens that individuals with disabilities may face 
because archived web content is not required to conform to WCAG 2.1 
Level AA. The Department emphasizes that even if certain content 
does not have to conform to the technical standard, public entities 
still need to ensure that their services, programs, and activities 
offered using web content are accessible to individuals with 
disabilities on a case-by-case basis in accordance with their 
existing obligations under title II. These obligations include 
making reasonable modifications to avoid discrimination on the basis 
of disability, ensuring that communications with people with 
disabilities are as effective as communications with people without 
disabilities, and providing people with disabilities an equal 
opportunity to participate in or benefit from the entity's services, 
programs, or activities.\128\ Some commenters suggested that the 
Department should also specify that if a public entity makes 
archived web content conform to WCAG 2.1 Level AA in response to a 
request from an individual with a disability, such as by remediating 
a PDF stored in an archived area on the public entity's website, the 
public entity should replace the inaccessible version in the archive 
with the updated accessible version that was sent to the individual. 
The Department agrees that this is a best practice public entities 
could implement, but did not add this to the text of this part 
because of the importance of providing public entities flexibility 
to meet the needs of individuals with disabilities on a case-by-case 
basis.
---------------------------------------------------------------------------

    \128\ See Sec. Sec.  35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------

    Some commenters suggested that the Department should require 
public entities to adopt procedures and timelines for how 
individuals with disabilities could request access to inaccessible 
archived web content covered by the exception. The Department 
declines to make specific changes to the exception in response to 
these comments. The Department reiterates that, even if content is 
covered by this exception, public entities still need to ensure that 
their services, programs, and activities offered using web content 
are accessible to individuals with disabilities on a case-by-case 
basis in accordance with their existing obligations under title 
II.\129\ The Department notes that it is helpful to provide 
individuals with disabilities with information about how to obtain 
the reasonable modifications or auxiliary aids and services they may 
need. Public entities can help to facilitate effective communication 
by providing notice to the public on how an individual who cannot 
access archived web content covered by the exception 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 with respect to the archived 
content. Public entities can also help to facilitate effective 
communication by providing an accessibility statement that tells the 
public how to bring web content or mobile app accessibility problems 
to the public entities' attention, and developing and implementing a 
procedure for reviewing and addressing any such issues raised. For 
example, a public entity could help to facilitate effective 
communication by providing an email address, accessible link, 
accessible web page, or other accessible means of contacting the 
public entity to provide information about issues that individuals 
with disabilities may encounter accessing web content or mobile apps 
or to request assistance. Providing this information will help 
public entities to ensure that they are satisfying their obligations 
to provide equal access, effective communication, and reasonable 
modifications.
---------------------------------------------------------------------------

    \129\ Id.
---------------------------------------------------------------------------

    Some commenters suggested that this part should require a way 
for users to search through archived web content, or information 
about the contents of the archive should otherwise be provided, so 
individuals with disabilities can identify what content is contained 
in an archive. Some other commenters noted that searching through an 
archive is inherently imprecise and involves sifting through many 
documents, but the exception places the burden on individuals with 
disabilities to know exactly which archived documents to request in 
accessible formats. After carefully considering these comments, the 
Department decided not to change the text of this part. The 
Department emphasizes that web content that is not archived, but 
instead notifies users about the existence of archived web content 
and provides users access to archived web content, generally must 
still conform to WCAG 2.1 Level AA. Therefore, the Department 
anticipates that members of the public will have information about 
what content is contained in an archive. For example, a public 
entity's archive may include a list of links to download archived 
documents. Under WCAG 2.1 Success Criterion 2.4.4, a public entity 
would generally have to provide sufficient information in the text 
of the link alone, or

[[Page 31363]]

in the text of the link together with the link's programmatically 
determined link context, so users could understand the purpose of 
each link and determine whether they want to access a given document 
in the archive.\130\
---------------------------------------------------------------------------

    \130\ See W3C, Understanding SC 2.4.4.: Link Purpose (In 
Context) (June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/link-purpose-in-context.html [https://perma.cc/RE3T-J9PN].
---------------------------------------------------------------------------

    Some commenters suggested that public entities should ensure 
that the systems they use to retain and store archived web content 
do not convert the content into an inaccessible format. The 
Department does not believe it is necessary to make updates to this 
part in response to these comments. Content that does not meet the 
definition of ``archived web content'' must generally conform to 
WCAG 2.1 Level AA, unless it qualifies for another exception, so 
public entities would not be in compliance with subpart H of this 
part if they stored such content using a system that converts 
accessible web content into an inaccessible format. The Department 
anticipates that public entities will still move certain newly 
created web content into an archive alongside historic content after 
the date they are required to comply with subpart H, even though the 
newly created content will generally not meet the definition of 
``archived web content.'' For example, after the time a city is 
required to comply with subpart H, the city might post a PDF flyer 
on its website identifying changes to the dates its sanitation 
department will pick up recycling around a holiday. After the date 
of the holiday passes, the city might move the flyer to an archive 
along with other similar historic flyers. Because the newly created 
flyer would not meet the first part of the definition of ``archived 
web content,'' it would generally need to conform to WCAG 2.1 Level 
AA even after it is moved into an archive. Therefore, the city would 
need to ensure its system for retaining and storing archived web 
content does not convert the flyer into an inaccessible format.
    Some commenters also suggested that the exception should not 
apply to public entities whose primary function is to provide or 
make available what commenters perceived as archived web content, 
such as some libraries, museums, scientific research organizations, 
or state or local government agencies that provide birth or death 
records. Commenters expressed concern that the exception could be 
interpreted to cover the entirety of such entities' web content. The 
Department reiterates that whether archived web content is retained 
exclusively for reference, research, or recordkeeping depends on the 
particular circumstances. For example, a city's research library may 
have both archived and non-archived web content related to a city 
park. If the library's collection included a current map of the park 
that was created by the city, that map would likely not be retained 
exclusively for reference, research, or recordkeeping, as it is a 
current part of the city's program of providing and maintaining a 
park. Furthermore, if the map was newly created after the date the 
public entity was required to comply with subpart H of this part, 
and it does not reproduce paper documents or the contents of other 
physical media created before the date the public entity was 
required to comply with subpart H, the map would likely not meet the 
first part of the definition of ``archived web content.'' In 
addition, the library may decide to curate and host an exhibition on 
its website about the history of the park, which refers to and 
analyzes historic web content pertaining to the park that otherwise 
meets the definition of ``archived web content.'' All content used 
to deliver the online exhibition likely would not be used 
exclusively for reference, research, or recordkeeping, as the 
library is using the materials to create and provide a new 
educational program for the members of the public. The Department 
believes the exception, including the definition of ``archived web 
content,'' provides a workable framework for determining whether all 
types of public entities properly designate web content as archived.
    In the NPRM, the Department asked commenters about the 
relationship between the content covered by the archived web content 
exception and the exception for preexisting conventional electronic 
documents set forth in Sec.  35.201(b).\131\ In response, some 
commenters sought clarification about the connection between the 
exceptions or recommended that there should only be one exception. 
The Department believes both exceptions are warranted because they 
play different roles in freeing up public entities' personnel and 
financial resources to make accessible the most significant content 
that they provide or make available. As discussed in the preceding 
paragraphs, the archived web content exception provides a framework 
for public entities to prioritize their resources on making 
accessible the up-to-date materials that people use most widely and 
consistently, rather than historic or outdated web content. However, 
public entities cannot disregard such content entirely. Instead, 
historic or outdated web content that entities intend to treat as 
archived web content must be located and added to an area or areas 
clearly designated as being archived. The Department recognizes that 
creating an archive area or areas and moving content into the 
archive will take time and resources. As discussed in the section-
by-section analysis of Sec.  35.201(b), the preexisting conventional 
electronic documents exception provides an important measure of 
clarity and certainty for public entities as they initially consider 
how to address all the various conventional electronic documents 
available through their web content and mobile apps. Public entities 
will not have to immediately focus their time and resources on 
remediating or archiving less significant preexisting documents that 
are covered by the exception. Instead, public entities can focus 
their time and resources elsewhere and attend to preexisting 
documents covered by the preexisting conventional electronic 
documents exception in the future as their resources permit, such as 
by adding them to an archive.
---------------------------------------------------------------------------

    \131\ 88 FR 51968.
---------------------------------------------------------------------------

    The Department recognizes that there may be some overlap between 
the content covered by the archived web content exception and the 
exception for preexisting conventional electronic documents set 
forth in Sec.  35.201(b). The Department notes that if web content 
is covered by the archived web content exception, it does not need 
to conform to WCAG 2.1 Level AA to comply with subpart H of this 
part, even if the content fails to qualify for another exception, 
such as the preexisting conventional electronic document exception. 
For example, after the date a public university is required to 
comply with subpart H, its athletics website may still include PDF 
documents containing the schedules for sports teams from academic 
year 2017-2018 that were posted in non-archived areas of the website 
in the summer of 2017. Those PDFs may be covered by the preexisting 
conventional electronic documents exception because they were 
available on the university's athletics website prior to the date it 
was required to comply with subpart H, unless they are currently 
used to apply for, gain access to, or participate in a public 
entity's services, programs, or activities, in which case, as 
discussed in more detail in the section-by-section analysis of Sec.  
35.201(b), they would generally need to conform to WCAG 2.1 Level 
AA. However, if the university moved the PDFs to an archived area of 
its athletics site and the PDFs satisfied all parts of the 
definition of ``archived web content,'' the documents would not need 
to conform to WCAG 2.1 Level AA, regardless of how the preexisting 
conventional electronic document exception might otherwise have 
applied, because the content would fall within the archived web 
content exception.
    Some commenters also made suggestions about public entities' 
practices and procedures related to archived web content, but these 
suggestions fall outside the scope of this part. For example, some 
commenters stated that public entities' websites should not contain 
archived materials, or that all individuals should have to submit 
request forms to access archived materials. The Department did not 
make any changes to this part in response to these comments because 
this part is not intended to control whether public entities can 
choose to retain archived material in the first instance, or whether 
members of the public must follow certain steps to access archived 
web content.

Preexisting Conventional Electronic Documents

    Section 35.201(b) provides that conventional electronic 
documents that are available as part of a public entity's web 
content or mobile apps before the date the public entity is required 
to comply with subpart H of this part do not have to comply with the 
accessibility requirements of Sec.  35.200, unless such documents 
are currently used to apply for, gain access to, or participate in a 
public entity's services, programs, or activities. As discussed in 
the section-by-section analysis of Sec.  35.104, the term 
``conventional electronic documents'' is defined in Sec.  35.104 to 
mean web content or content in mobile apps that is in the following 
electronic file formats: portable document formats, word processor 
file formats, presentation file formats, and spreadsheet file 
formats. This list of

[[Page 31364]]

conventional electronic documents is an exhaustive list of file 
formats, rather than an open-ended list. The Department understands 
that many websites of public entities contain a significant number 
of conventional electronic documents that may contain text, images, 
charts, graphs, and maps, such as comprehensive reports on water 
quality. The Department also understands that many of these 
conventional electronic documents are in PDF format, but many 
conventional electronic documents may also be formatted as word 
processor files (e.g., Microsoft Word files), presentation files 
(e.g., Apple Keynote or Microsoft PowerPoint files), and spreadsheet 
files (e.g., Microsoft Excel files).
    Because of the substantial number of conventional electronic 
documents that public entities make available through their web 
content and mobile apps, and because of the personnel and financial 
resources that would be required for public entities to remediate 
all preexisting conventional electronic documents 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 to access the public entity's services, programs, or 
activities. For example, if before the date a public entity is 
required to comply with subpart H of this part the entity's website 
contains a series of out-of-date PDF reports on local COVID-19 
statistics, those reports generally need not conform to WCAG 2.1 
Level AA. 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 subpart H generally do not need to conform to WCAG 2.1 Level 
AA. As the public entity posts new reports going forward, however, 
those reports generally must conform to WCAG 2.1 Level AA.
    The Department modified the language of this exception from the 
NPRM. In the NPRM, the Department specified that the exception 
applied to conventional electronic documents ``created by or for a 
public entity'' that are available ``on a public entity's website or 
mobile app.'' The Department believes the language ``created by or 
for a public entity'' is no longer necessary in the regulatory text 
of the exception itself because the Department updated the language 
of Sec.  35.200 to clarify the overall scope of content generally 
covered by subpart H of this part. In particular, the text of Sec.  
35.200(a)(1) and (2) now states that subpart H applies to all web 
content and mobile apps that a public entity provides or makes 
available either directly or through contractual, licensing, or 
other arrangements. Section 35.201(b), which is an exception to the 
requirements of Sec.  35.200, is therefore limited by the new 
language added to the general section. In addition, the Department 
changed the language ``that are available on a public entity's 
website or mobile app'' to ``that are available as part of a public 
entity's web content or mobile apps'' to ensure consistency with 
other parts of the regulatory text by referring to ``web content'' 
rather than ``websites.'' Finally, the Department removed the phrase 
``members of the public'' from the language of the exception in the 
proposed rule for consistency with the edits to Sec.  35.200 
aligning the scope of subpart H with the scope of title II of the 
ADA, as described in the explanation of Sec.  35.200 in the section-
by-section analysis.
    Some commenters sought clarification about how to determine 
whether a conventional electronic document is ``preexisting.'' They 
pointed out that the date a public entity posted or last modified a 
document may not necessarily reflect the actual date the document 
was first made available to members of the public. For example, a 
commenter noted that a public entity may copy its existing documents 
unchanged into a new content management system after the date the 
public entity is required to comply with subpart H of this part, in 
which case the date stamp of the documents will reflect the date 
they were copied rather than the date they were first made available 
to the public. Another commenter recommended that the exception 
should refer to the date a document was ``originally'' posted to 
account for circumstances in which there is an interruption to the 
time the document is provided or made available to members of the 
public, such as when a document is temporarily not available due to 
technical glitches or server problems.
    The Department believes the exception is sufficiently clear. 
Conventional electronic documents are preexisting if a public entity 
provides them or makes them available prior to the date the public 
entity is required to comply with subpart H of this part. While one 
commenter recommended that the exception should not apply to 
documents provided or made available during the two- or three-year 
compliance timelines specified in Sec.  35.200(b), the Department 
believes the timelines specified in that section are the appropriate 
time frames for assessing whether a document is preexisting and 
requiring compliance with subpart H. If a public entity changes or 
revises a preexisting document following the date it is required to 
comply with subpart H, the document would no longer be 
``preexisting'' for the purposes of the exception. Whether documents 
would still be preexisting if a public entity generally modifies or 
updates the entirety of its web content or mobile apps after the 
date it is required to comply with subpart H would depend on the 
particular facts and circumstances. For example, if a public entity 
moved all of its web content, including preexisting conventional 
electronic documents, to a new content management system, but did 
not change or revise any of the preexisting documents when doing so, 
the documents would likely still be covered by the exception. In 
contrast, if the public entity decided to edit the content of 
certain preexisting documents in the process of moving them to the 
new content management system, such as by updating the header of a 
benefits application form to reflect the public entity's new mailing 
address, the updated documents would no longer be preexisting for 
the purposes of the exception. The Department emphasizes that the 
purpose of the exception is to free up public entities' resources 
that would otherwise be spent focusing directly on preexisting 
documents covered by the exception.
    Because the exception only applies to preexisting conventional 
electronic documents, it would not cover documents that are open for 
editing if they are changed or revised after the date a public 
entity is required to comply with subpart H of this part. For 
example, a town may maintain an editable word processing file, such 
as a Google Docs file, that lists the dates on which the town held 
town hall meetings. The town may post a link to the document on its 
website so members of the public can view the document online in a 
web browser, and it may update the contents of the document over 
time after additional meetings take place. If the document was 
posted to the town's website prior to the date it was required to 
comply with subpart H, it would be a preexisting conventional 
electronic document unless the town added new dates to the document 
after the date it was required to comply with subpart H. If the town 
made such additions to the document, the document would no longer be 
preexisting. Nevertheless, there are some circumstances where 
conventional electronic documents may be covered by the exception 
even if copies of the documents can be edited after the date the 
public entity is required to comply with subpart H. For example, a 
public entity may post a Microsoft Word version of a flyer on its 
website prior to the date it is required to comply with subpart H. A 
member of the public could technically download and edit that Word 
document after the date the public entity is required to comply with 
subpart H, but their edits would not impact the ``official'' posted 
version. Therefore, the official version would still qualify as 
preexisting under the exception. Similarly, PDF files that include 
fillable form fields (e.g., areas for a user to input their name and 
address) may also be covered by the exception so long as members of 
the public do not edit the content contained in the official posted 
version of the document. However, as discussed in the following 
paragraph, the exception does not apply to documents that are 
currently used to apply for, gain access to, or participate in the 
public entity's services, programs, or activities. The Department 
notes that whether a PDF document is fillable may be relevant in 
considering whether the document is currently used to apply for, 
gain access to, or participate in a public entity's services, 
programs, or activities. For example, a PDF form that must be filled 
out and submitted when renewing a driver's license is currently used 
to apply for, gain access to, or participate in a public entity's 
services, programs, or activities, and therefore would not be 
subject to the exception under Sec.  35.201(b) for preexisting 
conventional electronic documents. One commenter recommended that 
the Department clarify in the text of the regulation that 
conventional electronic documents include only those documents that 
are not open for editing by

[[Page 31365]]

the public. The Department believes this point is adequately 
captured by the requirement that conventional electronic documents 
must be preexisting to qualify for the exception.
    This exception is not without bounds: it does not apply to any 
preexisting documents that are currently used to apply for, gain 
access to, 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 at any given 
point in the future, not just at the moment in time when the final 
rule is published. For example, a public entity generally must make 
a preexisting PDF application for a business license conform to WCAG 
2.1 Level AA if the document is still currently used. The Department 
notes that preexisting documents are also not covered by the 
exception if they provide instructions or guidance related to other 
documents that are directly used to apply for, gain access to, or 
participate in the public entity's services, programs, or 
activities. Therefore, in addition to making the aforementioned 
preexisting PDF application for a business license conform to WCAG 
2.1 Level AA, public entities generally must also make other 
preexisting documents conform to WCAG 2.1 Level AA if they 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.
    Various commenters sought additional clarification about what it 
means for conventional electronic documents to be ``used'' in 
accordance with the limited scope of the exception. In particular, 
commenters questioned whether informational documents are used by 
members of the public to apply for, gain access to, or participate 
in a public entity's services, programs, or activities. Some 
commenters expressed concern that the scope of the exception would 
be interpreted inconsistently, including with respect to documents 
posted by public entities in accordance with other laws. Some 
commenters also urged the Department to add additional language to 
the exception, such as specifying that documents would not be 
covered by the exception if they are used by members of the public 
to ``enable or assist'' them to apply for, gain access to, or 
participate in a public entity's services, programs, or activities, 
or the documents ``provide information about or describe'' a public 
entity's services, programs, or activities.
    Whether a document is currently used to apply for, gain access 
to, or participate in a public entity's services, programs, or 
activities is a fact-specific analysis. For example, one commenter 
questioned whether a document containing a city's description of a 
public park and its accessibility provisions would be covered by the 
exception if the document did not otherwise discuss a particular 
event or program. The Department anticipates that the exception 
would likely not cover such a document. One of the city's services, 
programs, or activities is providing and maintaining a public park 
and its accessibility features. An individual with a disability who 
accesses the document before visiting the park to understand the 
park's accessibility features would be currently using the document 
to gain access to the park.
    One commenter suggested that if a public entity cannot change 
preexisting conventional electronic documents due to legal 
limitations or other similar restrictions, then the public entity 
should not have to make those documents accessible under subpart H 
of this part, even if they 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 did not 
make changes to the exception because subpart H already includes a 
provision that addresses such circumstances in Sec.  35.202. Namely, 
public entities are permitted to use conforming alternate versions 
of web content where it is not possible to make web content directly 
accessible due to technical or legal limitations. Therefore, a 
public entity could provide an individual with a disability a 
conforming alternate version of a preexisting conventional 
electronic document currently used to apply for, gain access to, or 
participate in the public entity's services, programs, or activities 
if the document could not be made accessible for the individual due 
to legal limitations.
    One commenter expressed concern that public entities might 
convert large volumes of web content to formats covered by the 
exception ahead of the compliance dates in subpart H of this part. 
In contrast, a public entity stated that there is limited incentive 
to rush to post inaccessible documents prior to the compliance dates 
because documents are frequently updated, and it would be easier for 
the public entity to create accessible documents in the first place 
than to try to remediate inaccessible documents in the future. The 
Department emphasizes that a public entity may not rely on the 
exception to circumvent its accessibility obligations under subpart 
H 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 subpart H. Even if a public entity 
did convert various web content to preexisting conventional 
electronic documents before the date it was required to comply with 
subpart H, the date the documents were posted is only one part of 
the analysis under the exception. If any of the converted documents 
are currently used to apply for, gain access to, or participate in 
the public entity's services, programs, or activities, they would 
not be covered by the exception and would generally need to conform 
to WCAG 2.1 Level AA, even if those documents were posted before the 
date the entity was required to comply with subpart H. And if a 
public entity revises a conventional electronic document after the 
date the entity must comply with subpart H, that document would no 
longer qualify as ``preexisting'' and would thus need to be made 
accessible as defined in Sec.  35.200.
    The Department received comments both supporting and opposing 
the exception. In support of the exception, commenters highlighted 
various benefits. For example, commenters noted that the exception 
would help public entities preserve resources because remediating 
preexisting documents is time consuming and expensive. Commenters 
also noted that the exception would focus public entities' resources 
on current and future content rather than preexisting documents that 
may be old, rarely accessed, or of little benefit. Commenters stated 
that in the absence of this exception public entities might remove 
preexisting documents from their websites.
    In opposition to the exception, commenters highlighted various 
concerns. For example, commenters argued that the exception is 
inconsistent with the ADA's goal of equal access for individuals 
with disabilities because it perpetuates unequal access to 
information available through public entities' web content and 
mobile apps, and it is unnecessary because the compliance 
limitations for fundamental alteration and undue financial and 
administrative burdens would protect public entities from any 
unrealistic requirements under subpart H of this part. Commenters 
also asserted that the exception excludes relevant and important 
content from becoming accessible, and it inappropriately continues 
to place the burden on individuals with disabilities to identify 
themselves to public entities, request access to the content covered 
by the exception, and wait for the request to be processed. In 
addition, commenters argued that the exception covers file formats 
that do not need to be covered by an exception because they can 
generally be remediated easily; it is not timebound; it does not 
account for technology that exists, or might develop in the future, 
that may allow for easy and reliable wide-scale remediation of 
conventional electronic documents; and it might deter development of 
technology to reliably remediate conventional electronic documents. 
Commenters also stated that the exception is confusing because, as 
described elsewhere in this appendix, it may not be clear when 
documents are ``preexisting'' or ``used'' to apply for, gain access 
to, or participate in a public entity's services, programs, or 
activities, and confusion or a lack of predictability would make 
advocacy efforts more difficult.
    After reviewing the comments, the Department has decided to keep 
the exception in Sec.  35.201. The Department continues to believe 
that the exception provides an important measure of clarity and 
certainty for public entities as they initially consider how to 
address all the various conventional electronic documents provided 
and made available through their web content and mobile apps. The 
exception will allow public entities to primarily focus their 
resources on developing new conventional electronic documents that 
are accessible as defined under subpart H of this part and 
remediating preexisting conventional electronic documents that are 
currently used to apply for, gain access to, or participate in their 
services, programs, or activities. In contrast, public entities will 
not have to expend their resources on identifying, cataloguing, and 
remediating preexisting

[[Page 31366]]

conventional electronic documents that are not currently used to 
apply for, gain access to, or participate in the public entity's 
services, programs, or activities. Based on the exception, public 
entities may thereby make more efficient use of the resources 
available to them to ensure equal access to their services, 
programs, or activities for all individuals with disabilities.
    The Department understands the concerns raised by commenters 
about the potential burdens that individuals with disabilities may 
face because some conventional electronic documents covered by the 
exception are not accessible. The Department emphasizes that even if 
certain content does not have to conform to the technical standard, 
public entities still need to ensure that their services, programs, 
and activities offered using web content and mobile apps are 
accessible to individuals with disabilities on a case-by-case basis 
in accordance with their existing obligations under title II of the 
ADA. These obligations include making reasonable modifications to 
avoid discrimination on the basis of disability, ensuring that 
communications with people with disabilities are as effective as 
communications with people without disabilities, and providing 
people with disabilities an equal opportunity to participate in or 
benefit from the entity's services, programs, or activities.\132\
---------------------------------------------------------------------------

    \132\ See Sec. Sec.  35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------

    Some commenters suggested that the Department should require 
public entities to adopt procedures and timelines for how 
individuals with disabilities could request access to inaccessible 
conventional electronic documents covered by the exception. One 
commenter also suggested that subpart H of this part should require 
the ongoing provision of accessible materials to an individual with 
a disability if a public entity is on notice that the individual 
needs access to preexisting conventional electronic documents 
covered by the exception in accessible formats. The Department 
declines to make specific changes to the exception in response to 
these comments and reiterates that public entities must determine on 
a case-by-case basis how best to meet the needs of those individuals 
who cannot access the content contained in documents that are 
covered by the exception. It is helpful to provide individuals with 
disabilities with information about how to obtain the modifications 
or auxiliary aids and services they may need. Public entities can 
help to facilitate effective communication by providing notice to 
the public on how an individual who cannot access preexisting 
conventional electronic documents covered by the exception 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 with respect to the documents. 
Public entities can also facilitate effective communication by 
providing an accessibility statement that tells the public how to 
bring web content or mobile app accessibility problems to the public 
entities' attention and developing and implementing a procedure for 
reviewing and addressing any such issues raised. For example, a 
public entity could facilitate effective communication by providing 
an email address, accessible link, accessible web page, or other 
accessible means of contacting the public entity to provide 
information about issues that individuals with disabilities may 
encounter accessing web content or mobile apps or to request 
assistance. Providing this information will help public entities to 
ensure that they are satisfying their obligations to provide equal 
access, effective communication, and reasonable modifications.
    Commenters also suggested other possible revisions to the 
exception. Commenters recommended various changes that would cause 
conventional electronic documents covered by the exception to become 
accessible over time. For example, commenters suggested that if a 
public entity makes a copy of a preexisting conventional electronic 
document covered by the exception conform to WCAG 2.1 Level AA in 
response to a request from an individual with a disability, the 
public entity should replace the inaccessible version posted on its 
web content or mobile app with the updated accessible version that 
was sent to the individual; the exception should ultimately expire 
after a certain amount of time; public entities should be required 
to remediate preexisting documents over time, initially prioritizing 
documents that are most important and frequently accessed; or public 
entities should be required to convert certain documents to HTML 
format according to the same schedule that other HTML content is 
made accessible.
    The Department already expects the impact of the exception will 
diminish over time for various reasons. For example, public entities 
may update the documents covered by the exception, in which case 
they are no longer ``preexisting.'' In addition, the Department 
notes that there is nothing in subpart H of this part that would 
prevent public entities from taking steps, such as those identified 
by commenters, to make preexisting conventional electronic documents 
conform to WCAG 2.1 Level AA. In fact, public entities might find it 
beneficial to do so.
    One commenter recommended that the exception should apply to all 
preexisting conventional electronic documents regardless of how they 
are used by members of the public. The Department does not believe 
this approach is advisable because it has the potential to cause a 
significant accessibility gap for individuals with disabilities if 
public entities rely on conventional electronic documents that are 
not regularly updated or changed. This could result in inconsistent 
access to web content and mobile apps and therefore less 
predictability for people with disabilities in terms of what to 
expect when accessing public entities' web content and mobile apps.
    One public entity recommended that the exception should also 
apply to preexisting documents posted on a public entity's web 
content or mobile apps after the date the public entity is required 
to comply with subpart H of this part if the documents are of 
historical value and were only minimally altered before posting. One 
goal of the exception is to assist public entities in focusing their 
personnel and financial resources on developing new web content and 
mobile apps that are accessible as defined under subpart H. 
Therefore, the exception neither applies to content that is newly 
added to a public entity's web content or mobile app after the date 
the public entity is required to comply with subpart H nor to 
preexisting content that is updated after that date. The Department 
notes that if a public entity wishes to post archival documents, 
such as the types of documents described by the commenter, after the 
date the public entity is required to comply with subpart H, the 
public entity should assess whether the documents can be archived 
under Sec.  35.201(a), depending on the facts. In particular, the 
definition of ``archived web content'' in Sec.  35.104 includes web 
content posted to an archive after the date a public entity is 
required to comply with subpart H only if the web content was 
created before the date the public entity is required to comply with 
subpart H, reproduces paper documents created before the date the 
public entity is required to comply with subpart H, or reproduces 
the contents of other physical media created before the date the 
public entity is required to comply with subpart H.
    Several commenters also requested clarification about how the 
exception applies to preexisting conventional electronic documents 
that are created by a third party on behalf of a public entity or 
hosted on a third party's web content or mobile apps on behalf of a 
public entity. As previously discussed, the Department made general 
changes to Sec.  35.200 that address public entities' contractual, 
licensing, or other arrangements with third parties. The Department 
clarified that the general requirements for web content and mobile 
app accessibility apply when a public entity provides or makes 
available web content or mobile apps, directly or through 
contractual, licensing, or other arrangements. The same is also true 
for the application of this exception. Therefore, preexisting 
conventional electronic documents that a public entity provides or 
makes available, directly or through contractual, licensing, or 
other arrangements, would be subject to subpart H of this part, and 
the documents would be covered by this exception unless they are 
currently used to apply for, gain access to, or participate in the 
public entity's services, programs, or activities.

Third-Party Content

    Public entities' web content or mobile apps can include or link 
to many different types of content 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 content created by third parties, like 
scheduling tools, reservations systems, or payment systems. Web 
content or content in mobile apps created by third parties 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 content that 
allow public comment. In addition to content created by third 
parties that is posted on the public

[[Page 31367]]

entity's own web content or content in mobile apps, 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.
    Subpart H of this part requires web content and mobile apps 
created by third parties to comply with Sec.  35.200 if the web 
content and mobile apps are provided or made available due to 
contractual, licensing, or other arrangements with the public 
entity. In other words, web content and mobile apps that are created 
or posted on behalf of a public entity fall within the scope of 
Sec.  35.200. Where a public entity links to third-party content but 
the third-party content is truly unaffiliated with the public entity 
and not provided on behalf of the public entity due to contractual, 
licensing, or other arrangements, the linked content falls outside 
the scope of Sec.  35.200. Additionally, due to the exception in 
Sec.  35.201(c), content posted by a third party on an entity's web 
content or mobile app falls outside the scope of Sec.  35.200, 
unless the third party is posting due to contractual, licensing, or 
other arrangements with the public entity.
    The Department has heard a variety of views regarding whether 
public entities should be responsible for ensuring that third-party 
content on their websites and linked third-party content are 
accessible as defined by Sec.  35.200. 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 heard the view, however, that public entities 
should be responsible for third-party content because a public 
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, or activities. Furthermore, 
boundaries between web content generated by a public entity and by a 
third party are often difficult to discern.
    In anticipation of these concerns, the Department originally 
proposed two limited exceptions related to third-party content in 
the NPRM. After review of the public's comments to those exceptions 
and the comments related to third-party content generally, the 
Department is proceeding with one of those exceptions in subpart H 
of this part, as described in the following paragraph. As further 
explained elsewhere in this appendix, the Department notes that it 
eliminates redundancy to omit the previously proposed exception for 
third-party content linked from a public entity's website, but it 
does not change the scope of content that is required to be made 
accessible under subpart H.

Content Posted by a Third Party

    Section 35.201(c) provides an exception to the web and mobile 
app accessibility requirements of Sec.  35.200 for content posted by 
a third party, unless the third party is posting due to contractual, 
licensing, or other arrangements with the public entity. Section 
35.201 includes this exception in recognition of the fact that 
individuals other than a public entity's agents sometimes post 
content on a public entity's web content and mobile apps. 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 unmonitored, 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 less frequently accessed than other 
content, there may be only limited benefit to requiring public 
entities to make this content accessible. Accordingly, the 
Department believes an exception for this content is appropriate. 
However, while this exception applies to web content or content in 
mobile apps posted by third parties, it does not apply to the tools 
or platforms the public uses to post third-party content on a public 
entity's web content or content in mobile apps, such as message 
boards--these tools and platforms generally must conform to the 
technical standard in subpart H of this part.
    This exception applies to, among other third-party content, 
documents filed by independent third parties in administrative, 
judicial, and other legal proceedings that are available on a public 
entity's web content or mobile apps. 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. Documents are often submitted 
by third parties--such as a private attorney in a legal case or 
other members of the public--and those documents 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, or activities.\133\ 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 generally must timely provide those filings in an 
accessible format. Similarly, public entities generally must provide 
reasonable modifications to ensure that individuals with 
disabilities have access to the public entities' services, programs, 
or activities. For example, if a hearing had been scheduled in the 
proceeding referenced in this paragraph, the court might need to 
postpone the hearing if the person with a disability was not 
provided filings in an accessible format before the scheduled 
hearing.
---------------------------------------------------------------------------

    \133\ See, e.g., Sec. Sec.  35.130(b)(1)(ii) and (b)(7) and 
35.160.
---------------------------------------------------------------------------

    Sometimes a public entity itself chooses to post content created 
by a third party on its website. The exception in Sec.  35.201(c) 
does not apply to content posted by the public entity itself, or 
posted on behalf of the public entity due to contractual, licensing, 
or other arrangements, 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 
by an outside technology company. Sometimes a third party might even 
build a public entity's website template on the public entity's 
behalf. To the extent a public entity chooses to rely on third-party 
content on its website in these ways, it must select third-party 
content that meets the requirements of Sec.  35.200. This is because 
a public entity may not delegate away its obligations under the 
ADA.\134\ If a public entity relies on a contractor or another third 
party to post content on the public entity's behalf, the public 
entity retains responsibility for ensuring the accessibility of that 
content. To provide another example, if a public housing authority 
relies on a third-party contractor to collect online applications on 
the third-party contractor's website for placement on a waitlist for 
housing, the public housing authority must ensure that this content 
is accessible.
---------------------------------------------------------------------------

    \134\ See Sec.  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 has added language to the third-party posted 
exception in Sec.  35.201(c) to make clear that the exception does 
not apply where a third party is posting on behalf of the public 
entity. The language in Sec.  35.201(c) provides that the exception 
does not apply if the third party is posting due to contractual, 
licensing, or other arrangements with the public entity. The 
Department received many comments expressing concern with how this 
exception as originally proposed could have applied in the context 
of third-party vendors and other entities acting on behalf of the 
public entity. The Department added language to make clear that the 
exception only applies where the third-party posted content is 
independent from the actions of the public entity--that is, where 
there is no arrangement under which the third party is acting on 
behalf of the public entity. If such an arrangement exists, the 
third-party content is not covered by the exception and must be made 
accessible in accordance with subpart H of this part. This point is 
also made clear in language the Department added to the general 
requirements of Sec.  35.200, which provides that public entities 
shall ensure web

[[Page 31368]]

content and mobile apps that the public entities provide or make 
available, directly or through contractual, licensing, or other 
arrangements, are readily accessible to and usable by individuals 
with disabilities.\135\ The Department decided to add the same 
clarification to the exception for third-party posted content 
because this is the only exception in Sec.  35.201 that applies 
solely based upon the identity of the poster (whereas the other 
exceptions identify the type of content at issue), and the 
Department believes clarity about the meaning of ``third party'' in 
the context of this exception is critical to avoid the exception 
being interpreted overly broadly. The Department believes this 
clarification is justified by the concerns raised by commenters.
---------------------------------------------------------------------------

    \135\ See supra section-by-section analysis of Sec.  
35.200(a)(1) and (2) and (b)(1) and (2).
---------------------------------------------------------------------------

    On another point, some commenters expressed confusion about when 
authoring tools and other embedded content that enables third-party 
postings would need to be made accessible. The Department wishes to 
clarify that while the exception for third-party posted content 
applies to that content which is posted by an independent third 
party, the exception does not apply to the authoring tools and 
embedded content provided by the public entity, directly or through 
contractual, licensing, or other arrangements. Because of this, 
authoring tools, embedded content, and other similar functions 
provided by the public entity that facilitate third-party postings 
are not covered by this exception and must be made accessible in 
accordance with subpart H of this part. Further, public entities 
should consider the ways in which they can facilitate accessible 
output of third-party content through authoring tools and guidance. 
Some commenters suggested that the Department should add regulatory 
text requiring public entities to use authoring tools that generate 
compliant third-party posted content. The Department declines to 
adopt this approach at this time because the technical standard 
adopted by subpart H is WCAG 2.1 Level AA, and the Department 
believes the commenters' proposed approach would go beyond that 
standard. The Department believes going beyond the requirements of 
WCAG 2.1 Level AA in this way would undermine the purpose of relying 
on an existing technical standard that web developers are already 
familiar with, and for which guidance is readily available, which 
could prove confusing for public entities.
    The Department received many comments either supporting or 
opposing the exception for content posted by a third party. Public 
entities and trade groups representing public accommodations 
generally supported the exception, and disability advocates 
generally opposed the exception. Commenters supporting the exception 
argued that the content covered by this exception would not be 
possible for public entities to remediate since they lack control 
over unaffiliated third-party content. Commenters in support of the 
exception also shared that requiring public entities to remediate 
this content would stifle engagement between public entities and 
members of the public, because requiring review and updating of 
third-party postings would take time. Further, public entities 
shared that requiring unaffiliated third-party web content to be 
made accessible would in many cases either be impossible or require 
the public entity to make changes to the third party's content in a 
way that could be problematic.
    Commenters opposing the exception argued that unaffiliated 
third-party content should be accessible so that individuals with 
disabilities can engage with their State or local government 
entities, and commenters shared examples of legal proceedings, 
development plans posted by third parties for public feedback, and 
discussions of community grievances or planning. Some of the 
commenters writing in opposition to the exception expressed concern 
that content provided by vendors and posted by third parties on 
behalf of the public entity would also be covered by this exception. 
The Department emphasizes in response to these commenters that this 
exception does not apply where a third party such as a vendor is 
acting on behalf of a public entity, through contractual, licensing, 
or other arrangements. The Department added language to ensure this 
point is clear in regulatory text, as explained previously.
    After reviewing the comments, the Department emphasizes at the 
outset the narrowness of this exception--any third-party content 
that is posted due to contractual, licensing, or other arrangements 
with the public entity would not be covered by this exception. The 
Department sometimes refers to the content covered by this exception 
as ``independent'' or ``unaffiliated'' content to emphasize that 
this exception only applies to content that the public entity has 
not contracted, licensed, or otherwise arranged with the third party 
to post. This exception would generally apply, for example, where 
the public entity enables comments from members of the public on its 
social media page and third-party individuals independently comment 
on that post, or where a public entity allows for legal filings 
through an online portal and a third-party attorney independently 
submits a legal filing on behalf of their private client (which is 
then available on the public entity's web content or mobile apps).
    The Department has determined that maintaining this exception is 
appropriate because of the unique considerations relevant to this 
type of content. The Department takes seriously public entities' 
concerns that they will often be unable to ensure independent third-
party content is accessible because it is outside of their control, 
and that if they were to attempt to control this content it could 
stifle communication between the public and State or local 
government entities. The Department further believes there are 
unique considerations that could prove problematic with public 
entities editing or requiring third parties to edit their postings. 
For example, if public entities were required to add alt text to 
images or maps in third parties' legal or other filings, it could 
require the public entity to make decisions about how to describe 
images or maps in a way that could be problematic from the 
perspective of the third-party filer. Alternatively, if the public 
entity were to place this burden on the third-party filer, it could 
lead to different problematic outcomes. For example, if a public 
entity rejects a posting from an unaffiliated third party (someone 
who does not have obligations under subpart H of this part) and 
requires the third party to update it, the result could be a delay 
of an emergency or time-sensitive filing or even impeding access to 
the forum if the third party is unable or does not have the 
resources to remediate the filing.
    The Department understands the concerns raised by the commenters 
who oppose this exception, and the Department appreciates that the 
inclusion of this exception means web content posted by third 
parties may not consistently be accessible by default. The 
Department emphasizes that even if certain content does not have to 
conform to the technical standard, public entities still need to 
ensure that their services, programs, and activities offered using 
web content and mobile apps are accessible to individuals with 
disabilities on a case-by-case basis in accordance with their 
existing obligations under title II of the ADA. These obligations 
include making reasonable modifications to avoid discrimination on 
the basis of disability, ensuring that communications with people 
with disabilities are as effective as communications with people 
without disabilities, and providing people with disabilities an 
equal opportunity to participate in or benefit from the entity's 
services, programs, or activities.\136\
---------------------------------------------------------------------------

    \136\ See Sec. Sec.  35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------

    The Department believes the balance this exception strikes thus 
ensures accessibility to the extent feasible without requiring 
public entities to take actions that may be impossible or lead to 
problematic outcomes as described previously. These problematic 
outcomes include public entities needing to characterize independent 
third-party content by adding image descriptions, for example, and 
stifling engagement between public entities and the public due to 
public entities' need to review and potentially update independent 
third-party posts, which could lead to delay in posting. Independent 
third-party content should still be made accessible upon request 
when required under the existing obligations within title II of the 
ADA. However, public entities are not required to ensure the 
accessibility at the outset of independent third-party content. The 
Department believes, consistent with commenters' suggestions, that 
reliance solely on the fundamental alteration or undue burdens 
provisions discussed in the ``Duties'' section of the section-by-
section analysis of Sec.  35.204 would not avoid these problematic 
outcomes. This is because, for example, even where the public entity 
may have the resources to make the third-party content accessible 
(such as by making changes to the postings or blocking posting until 
the third party makes changes), and even where the public entity 
does not believe modifying the postings would result in a 
fundamental alteration in the nature of the service, program, or 
activity at issue, the problematic outcomes described previously 
would likely persist. The Department thus believes that

[[Page 31369]]

this exception appropriately balances the relevant considerations 
while ensuring access for individuals with disabilities.
    Some commenters suggested alternative formulations that would 
narrow or expand the exception. For example, commenters suggested 
that the Department limit the exception to advertising and marketing 
or activities not used to access government services, programs, or 
activities; mandate that third-party postings providing official 
comment on government actions still be required to be made 
accessible; provide alternative means of access as permissible ways 
of achieving compliance; consider more content as third-party 
created content; provide for no liability for third-party sourced 
content; require that emergency information posted by third parties 
still be accessible; and require that public entities post guidance 
on making third-party postings accessible. The Department has 
considered these alternative formulations, and with each proposed 
alternative the Department found that the proposal would not avoid 
the problematic outcomes described previously, would result in 
practical difficulties to implement and define, or would be too 
expansive of an exception in that too much content would be 
inaccessible to individuals with disabilities.
    Commenters also suggested that the Department include a 
definition of ``third party.'' The Department is declining to add 
this definition because the critical factor in determining whether 
this exception applies is whether the third party is posting due to 
contractual, licensing, or other arrangements with the public 
entity, and the Department believes the changes to the regulatory 
text provide the clarity commenters sought. For example, the 
Department has included language making clear that public entities 
are responsible for the content of third parties acting on behalf of 
State or local government entities through the addition of the 
``contractual, licensing, or other arrangements'' clauses in the 
general requirements and in this exception. One commenter also 
suggested that subpart H of this part should cover third-party 
creators of digital apps and content regardless of whether the apps 
and content are used by public entities. Independent third-party 
providers unaffiliated with public entities are not covered by the 
scope of subpart H, as they are not title II entities.
    Finally, the Department made a change to the exception for 
third-party posted content from the NPRM to make the exception more 
technology neutral. The NPRM provided that the exception applies 
only to ``web content'' posted by a third party.\137\ The Department 
received a comment suggesting that third-party posted content be 
covered by the exception regardless of whether the content is posted 
on web content or mobile apps, and several commenters indicated that 
subpart H of this part should apply the same exceptions across these 
platforms to ensure consistency in user experience and reduce 
confusion. For example, if a third party posts information on a 
public entity's social media page, that information would be 
available on both the web and on a mobile app. However, without a 
technology-neutral exception for third-party posted content, that 
same information would be subject to different requirements on 
different platforms, which could create perverse incentives for 
public entities to only make certain content available on certain 
platforms. To address these concerns, Sec.  35.201(c) includes a 
revised exception for third-party posted content to make it more 
technology neutral by clarifying that the exception applies to 
``content'' posted by a third party. The Department believes this 
will ensure consistent application of the exception whether the 
third-party content is posted on web content or mobile apps.
---------------------------------------------------------------------------

    \137\ 88 FR 52019.
---------------------------------------------------------------------------

Previously Proposed Exception for Third-Party Content Linked From a 
Public Entity's Website

    In the NPRM, the Department proposed an exception for third-
party content linked from a public entity's website. After reviewing 
public comments on this proposed exception, the Department has 
decided not to include it in subpart H of this part. The Department 
agrees with commenters who shared that the exception is unnecessary 
and would only create confusion. Further, the Department believes 
that the way the exception was framed in the NPRM is consistent with 
the way subpart H would operate in the absence of this exception 
(with some clarifications to the regulatory text), so the fact that 
this exception is not included in subpart H will not change what 
content is covered by subpart H. Under subpart H, consistent with 
the approach in the NPRM, public entities are not responsible for 
making linked third-party content accessible where they do not 
provide or make available that content, directly or through 
contractual, licensing, or other arrangements.

Exception Proposed in the NPRM

    The exception for third-party-linked content that was proposed 
in the NPRM provided that a public entity would not be 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. 
Often, 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 proposed regulatory text in the NPRM 
provided that the public entity would have no obligation to make the 
content on a third party's website accessible.\138\ This exception 
was originally provided to make clear that public entities can 
continue to provide links to independent third-party web content 
without making the public entity responsible for the accessibility 
of the third party's web content.
---------------------------------------------------------------------------

    \138\ 88 FR 52019; see also id. at 51969 (preamble text).
---------------------------------------------------------------------------

    However, in the NPRM, the Department provided that 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 Sec.  35.200. The Department 
clarified that this approach is consistent with public entities' 
obligation to make all of their services, programs, and activities 
accessible to the public, including those that public entities 
provide through third parties.\139\
---------------------------------------------------------------------------

    \139\ 88 FR 51969; see also Sec.  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).
---------------------------------------------------------------------------

    Most commenters opining on this subject opposed the exception 
for third-party content linked from a public entity's website, 
including disability advocates and individuals with disabilities. 
Commenters raised many concerns with the exception as drafted. 
Principally, commenters shared that the exception could lead to 
confusion about when third-party content is covered by subpart H, 
and that it could result in critical third-party content being 
interpreted to be excluded from the requirements of Sec.  35.200. 
Although the Department proposed a limitation to the exception 
(i.e., a scenario under which the proposed exception would not 
apply) that would have required linked third-party content to be 
made accessible when it is used to participate in or benefit from 
the public entity's services, programs, or activities, commenters 
pointed out that this limitation would be difficult to apply to 
third-party content, and that many public entities would interpret 
the exception to allow them to keep services, programs, and 
activities inaccessible. Many commenters, including public entities, 
even demonstrated this confusion through their comments. For 
example, commenters believed that web content like fine payment 
websites, zoning maps, and other services provided by third-party 
vendors on behalf of public entities would be allowed to be 
inaccessible under this exception. This misinterprets the proposed 
exception as originally drafted because third-party web content that 
is used to participate in or benefit from the public entity's 
services, programs, or activities would have still been required to 
be accessible as defined under proposed Sec.  35.201 due to the 
limitation to the exception. But the Department noted that many 
commenters from disability advocacy groups, public entities, and 
trade groups representing public accommodations either expressed 
concern with or confusion about the exception, or demonstrated 
confusion through inaccurate statements about what content would 
fall into this exception to the requirements in subpart H of this 
part.
    Further, commenters also expressed concern with relieving public 
entities of the responsibility to ensure that the links they provide 
lead to accessible content.

[[Page 31370]]

Commenters stated that when public entities provide links, they are 
engaging in activities that would be covered by subpart H of this 
part. In addition, commenters said that public entities might 
provide links to places where people can get vaccinations or collect 
information for tourists, and that these constitute the activities 
of the public entity. Also, commenters opined that when public 
entities engage in these activities, they should not be absolved of 
the responsibility to provide information presented in a non-
discriminatory manner. Commenters said that public entities have 
control over which links they use when they organize these pages, 
and that public entities can and should take care to only provide 
information leading to accessible web content. Commenters stated 
that in many cases public entities benefit from providing these 
links, as do the linked websites, and that public entities should 
thus be responsible for ensuring the accessibility of the linked 
content. Some commenters added that this exception would have 
implied that title III entities are permitted to discriminate by 
keeping their web content inaccessible, though the Department 
emphasizes in response to these commenters that subpart H does not 
alter the responsibilities title III entities have with regard to 
the goods, services, privileges, or activities offered by public 
accommodations on the web.\140\ Commenters universally expressed 
their concern that the content at issue is often inaccessible, 
accentuating this problem.
---------------------------------------------------------------------------

    \140\ 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].
---------------------------------------------------------------------------

    Some commenters supported the exception, generally including 
individuals, public entities, and trade groups representing public 
accommodations. These commenters contended that the content at issue 
in this exception should properly be considered ``fluff,'' and that 
it would be unrealistic to expect tourist or small business 
promotion to exist through only accessible websites. The Department 
also received some examples from commenters who supported the 
exception of web content the commenters inaccurately believed would 
be covered by the exception, such as highway toll management account 
websites. The Department would have likely considered that type of 
content to be required to comply with Sec.  35.200, even with the 
exception, due to the limitation to the third-party-linked exception 
as proposed in the NPRM. Many of the comments the Department 
received on this proposed exception demonstrated confusion with how 
the third-party-linked exception and its limitation as proposed in 
the NPRM would apply in practice, which would lead to misconceptions 
in terms of when public entities must ensure conformance to WCAG 2.1 
and what kinds of content individuals with disabilities can expect 
to be accessible.

Approach to Linked Third-Party Content in Subpart H of This Part

    After reviewing public comments, the Department believes that 
inclusion of this exception is unnecessary, would result in 
confusion, and that removing the exception more consistently aligns 
with the language of title II of the ADA and the Department's intent 
in proposing the exception in the NPRM.
    Consistent with what many commenters opined, the Department 
believes that the proper analysis is whether an entity has directly, 
or through contractual, licensing, or other arrangements, provided 
or made available the third-party content. This means that, for 
example, when a public entity posts links to third-party web content 
on the public entity's website, the links located on the public 
entity's website and the organization of the public entity's website 
must comply with Sec.  35.200. Further, when a public entity links 
to third-party web content that is provided by the public entity, 
directly or through contractual, licensing, or other arrangements, 
the public entity is also responsible for ensuring the accessibility 
of that linked content. However, when public entities link to third-
party websites, unless the public entity has a contractual, 
licensing, or other arrangement with the website to provide or make 
available content, those third-party websites are not covered by 
title II of the ADA, because they are not services, programs, or 
activities provided or made available by public entities, and thus 
public entities are not responsible for the accessibility of that 
content.
    Rather than conduct a separate analysis under the proposed 
exception in the NPRM, the Department believes the simpler and more 
legally consistent approach is for public entities to assess whether 
the linked third-party content reflects content that is covered 
under subpart H of this part to determine their responsibility to 
ensure the accessibility of that content. If that content is 
covered, it must be made accessible in accordance with the 
requirements of Sec.  35.200. For example, if a public entity allows 
the public to pay for highway tolls using a third-party website, 
that website would be a service that the public entity provides 
through arrangements with a third party, and the toll payment 
website would need to be made accessible consistent with subpart H. 
However, if the content is not provided or made available by a 
public entity, directly or through contractual, licensing, or other 
arrangements, even though the public entity linked to that content, 
the public entity would not be responsible for making that content 
accessible. The public entity would still need to ensure the links 
themselves are accessible, but not the unaffiliated linked third-
party content. For example, if a public entity has a tourist 
information website that provides a link to a private hotel's 
website, then the public entity would need to ensure the link to 
that hotel is accessible, because the link is part of the web 
content of the public entity. The public entity would, for example, 
need to ensure that the link does not violate the minimum color 
contrast ratio by being too light of a color blue against a light 
background, which would make it inaccessible to certain individuals 
with disabilities.\141\ However, because the hotel website itself is 
private and is not being provided on behalf of the public entity due 
to a contractual, licensing, or other arrangement, the public entity 
would not be responsible for ensuring the hotel website's ADA 
compliance.\142\
---------------------------------------------------------------------------

    \141\ See W3C, Web Content Accessibility Guidelines 2.1, 
Contrast (Minimum) (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#contrast-minimum [https://perma.cc/VAA3-TYN9].
    \142\ The Department reminds the public, however, that the hotel 
would still have obligations under title III of the ADA. 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].
---------------------------------------------------------------------------

    The Department believes that this approach is consistent with 
what the Department sought to achieve by including the exception in 
the NPRM, so this modification to subpart H of this part from the 
proposal in the NPRM does not change the web content that is 
ultimately covered by subpart H. Rather, the Department believes 
that removing the exception will alleviate the confusion expressed 
by many commenters and allow public entities to make a more 
straightforward assessment of the coverage of the web content they 
provide to the public under subpart H. 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 Sec.  35.200. 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 as part of 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 
Sec.  35.200.
    The Department considered addressing commenters' confusion by 
providing more guidance on the proposed exception, rather than 
removing the exception. However, the Department believes that the 
concept of an exception for this type of content, when that content 
would not be covered by title II in the first place, would make the 
exception especially prone to confusion, such that including it in 
subpart H of this part even with further explanation would be 
insufficient to avoid confusion. The Department believes that 
because the content at issue would generally not be covered by title 
II in the first place, including this exception could inadvertently 
cause public entities to assume that the exception is broader than 
it is, which could result in the inaccessibility of content that is 
critical to accessing public entities' services, programs, or 
activities.
    The Department also reviewed proposals by commenters to both 
narrow and expand the language of the exception proposed in the 
NPRM. Commenters suggested narrowing the exception by revising the 
limitation to cover information that ``enables or assists'' members 
of the public to participate in or

[[Page 31371]]

benefit from services, programs, or activities. Commenters also 
proposed expanding the exception by allowing third-party web content 
to remain inaccessible if there is no feasible manner for the 
content to be made compliant with the requirements of Sec.  35.200 
or by removing the limitation. Several commenters made additional 
alternative proposals to both narrow and expand the language of the 
exception. The Department has reviewed these alternatives and is 
still persuaded that the most prudent approach is removing the 
exception altogether, for the reasons described previously.

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 public entity's services, programs, or 
activities. This part of the section-by-section analysis refers to 
mobile apps that are developed, owned, and operated by third parties 
as ``external mobile apps.'' \143\ For example, members of the 
public use external mobile apps to pay for parking in a city (e.g., 
``ParkMobile'' app \144\) or to submit non-emergency service 
requests such as fixing a pothole or a streetlight (e.g., 
``SeeClickFix'' app \145\). In subpart H of this part, external 
mobile apps are subject to Sec.  35.200 in the same way as mobile 
apps that are developed, owned, and operated by a public entity. The 
Department is taking this approach because such external apps are 
generally made available through contractual, licensing, or other 
means, and this approach ensures consistency with existing ADA 
requirements that apply to other services, programs, and activities 
that a public entity provides in this manner. Consistent with these 
principles, if a public entity, directly or through contractual, 
licensing, or other arrangements, provides or makes available an 
external mobile app, that mobile app must comply with Sec.  35.200 
unless it is subject to one of the exceptions outlined in Sec.  
35.201.
---------------------------------------------------------------------------

    \143\ The Department does not use the term ``third-party'' to 
describe mobile apps in this section to avoid confusion. It is the 
Department's understanding that the term ``third-party mobile app'' 
may 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].
    \144\ See ParkMobile Parking App, https://parkmobile.io [https://perma.cc/G7GY-MDFE].
    \145\ 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].
---------------------------------------------------------------------------

    The Department requested feedback on the external mobile apps 
that public entities use to offer their services, programs, or 
activities and received comments on its approach to external mobile 
apps. Commenters pointed out that external mobile apps are used for 
a variety of purposes by public entities, including for public 
information, updates on road conditions, transportation purposes, 
information on recreation, class information, map-based tools for 
finding specific information like air quality, and emergency 
planning, among other things.
    Commenters overwhelmingly supported the Department's position to 
not include a wholesale exception for every external mobile app, 
given how often these apps are used in public entities' services, 
programs, and activities. As commenters noted, the public's reliance 
on mobile devices makes access to external apps critical, and 
commenters shared their belief that the usage of mobile devices, 
like smartphones, will increase in the coming years. For example, 
some commenters indicated that many individuals with disabilities, 
especially those with vision disabilities, primarily rely on 
smartphones rather than computers, and if mobile apps are not 
accessible, then people who are blind or have low vision would need 
to rely on others to use apps that include sensitive data like bank 
account information. Accordingly, commenters argued there should be 
little, if any, difference between the information and accessibility 
provided using a mobile app and a conventional web browser, and if 
the Department were to provide an exception for external mobile 
apps, commenters said that there would be a large loophole for 
accessibility because so many members of the public rely on external 
mobile apps to access a public entity's services, programs, or 
activities.
    Some commenters sought clarity on the scope of external mobile 
apps that might be covered by subpart H of this part, such as 
whether apps used to vote in an election held by a public entity 
would be covered. Under subpart H, external mobile apps that public 
entities provide or make available, including apps used in a public 
entity's election, would be covered by subpart H. As discussed in 
the section-by-section analysis of Sec.  35.200, subpart H applies 
to a mobile app even if the public entity does not create or own the 
mobile app, if there is a contractual, licensing, or other 
arrangement through which the public entity provides or makes the 
mobile app available to the public.
    Some commenters raised concerns with applying accessibility 
standards to external mobile apps that a public entity provides or 
makes available, directly or through contractual, licensing, or 
other arrangements. Specifically, commenters indicated there may be 
challenges related to costs, burdens, and cybersecurity with making 
these apps accessible and, because external mobile apps are created 
by third-party vendors, public entities may have challenges in 
ensuring that these apps are accessible. Accordingly, some 
commenters indicated the Department should set forth an exception 
for external mobile apps. Another commenter suggested that the 
Department should delay the compliance date of subpart H of this 
part to ensure there is sufficient time for external mobile apps 
subject to Sec.  35.200 to come into compliance with the 
requirements in subpart H.
    While the Department understands these concerns, the Department 
believes that the public relies on many public entities' external 
mobile apps to access public entities' services, programs, or 
activities, and setting forth an exception for these apps would keep 
public entities' services, programs, or activities inaccessible in 
practice for many individuals with disabilities. The Department 
believes that individuals with disabilities should not be excluded 
from these government services because the external mobile apps on 
which public entities rely are inaccessible. In addition, this 
approach of applying ADA requirements to services, programs, or 
activities that a public entity provides through a contractual, 
licensing, or other arrangement with a third party is consistent 
with the existing framework in title II of the ADA.\146\ Under this 
framework, public entities have obligations in other title II 
contexts where they choose to contract, license, or otherwise 
arrange with third parties to provide services, programs, or 
activities.\147\
---------------------------------------------------------------------------

    \146\ See Sec.  35.130(b)(1) and (3).
    \147\ For example, under title II, a State is required to make 
sure that the services, programs, or activities offered by a State 
park inn that is operated by a private entity under contract with 
the State comply with title II. See 56 FR 35694, 35696 (July 26, 
1991).
---------------------------------------------------------------------------

    With respect to concerns about an appropriate compliance date, 
the section-by-section analysis of Sec.  35.200 addresses this 
issue. The Department believes the compliance dates in subpart H of 
this part will provide sufficient time for public entities to ensure 
they are in compliance with the requirements of subpart H. Further 
lengthening the compliance dates would only further extend the time 
that individuals with disabilities remain excluded from the same 
level of access to public entities' services, programs, and 
activities through mobile apps.

Previously Proposed Exceptions for Password-Protected Class or Course 
Content of Public Educational Institutions

    In the NPRM, the Department proposed exceptions to the 
requirements of Sec.  35.200 for certain password-protected class or 
course content of public elementary, secondary, and postsecondary 
institutions.\148\ For the reasons discussed in this section, the 
Department has decided not to include these exceptions in subpart H 
of this part.\149\ Accordingly, under subpart H, password-protected 
course content will be treated like any other content and public 
educational institutions will generally need to ensure that that 
content complies with WCAG 2.1 Level AA starting two or three years 
after the publication of the final rule, depending on whether the 
public educational institution is covered by Sec.  35.200(b)(1) or 
(2).
---------------------------------------------------------------------------

    \148\ See 88 FR 52019.
    \149\ Some commenters asked for clarification about how the 
proposed course content exceptions would operate in practice. For 
example, one commenter asked for clarification about what it would 
mean for a public educational institution to be ``on notice'' about 
the need to make course content accessible for a particular student, 
one of the limitations proposed in the NPRM. Because the Department 
is eliminating the course content exceptions from subpart H of this 
part, these questions about how the exceptions would have operated 
are moot and are not addressed in subpart H.

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

[[Page 31372]]

Course Content Exceptions Proposed in the NPRM

    The NPRM included two proposed exceptions for password-protected 
class or course content of public educational institutions. The 
first proposed exception, which was included in the NPRM as proposed 
Sec.  35.201(e),\150\ stated that the requirements of Sec.  35.200 
would not apply to 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.\151\ Although the proposed exception 
applied to password-protected course content, it did not apply to 
the Learning Management System platforms on which public educational 
institutions make content available.\152\
---------------------------------------------------------------------------

    \150\ Section 35.201(e) no longer refers to a course content 
exception, but now refers to a different exception for preexisting 
social media posts, as discussed in this section.
    \151\ 88 FR 52019.
    \152\ Id. at 51970.
---------------------------------------------------------------------------

    This proposed exception was cabined by two proposed limitations, 
which are scenarios under which the proposed exception would not 
apply. The first such limitation provided that the proposed 
exception would 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.\153\ In those 
circumstances, the NPRM proposed, 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, and 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.\154\
---------------------------------------------------------------------------

    \153\ Id. at 52019.
    \154\ Id.
---------------------------------------------------------------------------

    The second limitation to the proposed exception for public 
postsecondary institutions' course content provided that the 
exception would 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.\155\ In those circumstances, the NPRM proposed, 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, and 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.\156\
---------------------------------------------------------------------------

    \155\ Id.
    \156\ Id.
---------------------------------------------------------------------------

    The second proposed course content exception, which was included 
in the NPRM as Sec.  35.201(f), proposed the same exception as 
proposed Sec.  35.201(e), but for public elementary and secondary 
schools. The proposed exception also contained the same limitations 
and timing requirements as the proposed exception for public 
postsecondary schools, but the limitations to the exception would 
have applied not only when there was an admitted student with a 
disability enrolled in the course whose disability made them unable 
to access the course content, but also when there was a parent with 
a disability whose child was enrolled in the course and whose 
disability made them unable to access the course content.\157\
---------------------------------------------------------------------------

    \157\ Id.
---------------------------------------------------------------------------

    The Department proposed these exceptions in the NPRM based on 
its initial assessment that it might be too burdensome to require 
public educational institutions to make accessible all of the course 
content that is available on password-protected websites, 
particularly given that content can be voluminous and that some 
courses in particular terms may not include any students with 
disabilities or students whose parents have disabilities. However, 
the Department recognized in the NPRM that it is critical for 
students with disabilities to have access to course content for the 
courses in which they are enrolled; the same is true for parents 
with disabilities in the context of public elementary and secondary 
schools. The Department therefore proposed procedures that a public 
educational institution would have to follow to make course content 
accessible on an individualized basis once the institution was on 
notice that there was a student or parent who needed accessible 
course content because of a disability. Because of the need to 
ensure prompt access to course content, the Department proposed to 
require public educational institutions to act quickly upon being on 
notice of the need for accessible content; public entities would 
have been required to provide accessible course content either by 
the start of the term if the institution was on notice before the 
date the term began, or within five business days if the institution 
was on notice after the start of the term.
    The Department stated in the NPRM that it believed the proposed 
exceptions for password-protected course content struck the proper 
balance between meeting the needs of students and parents with 
disabilities while crafting a workable standard for public entities, 
but it welcomed public feedback on whether alternative approaches 
might strike a more appropriate balance.\158\ The Department also 
asked a series of questions about whether these exceptions were 
necessary or appropriate.\159\ For example, the Department asked how 
difficult it would be for public educational institutions to comply 
with subpart H of this part in the absence of these exceptions, what 
the impact of the exceptions would be on individuals with 
disabilities, how long it takes to make course content accessible, 
and whether the Department should consider an alternative 
approach.\160\
---------------------------------------------------------------------------

    \158\ Id. at 51973, 51976.
    \159\ Id. at 51973, 51974, 51976.
    \160\ Id. at 51973, 51974, 51976.
---------------------------------------------------------------------------

Public Comments on Proposed Course Content Exceptions

    The overwhelming majority of comments on this topic expressed 
opposition to the course content exceptions as proposed in the NPRM. 
Many commenters suggested that the Department should take an 
alternative approach on this issue; namely, the exceptions should 
not be included in subpart H of this part. Having reviewed the 
public comments and given careful additional consideration to this 
issue, the Department has decided not to include these exceptions in 
subpart H. The public comments supported the conclusion that the 
exceptions would exacerbate existing educational inequities for 
students and parents with disabilities without serving their 
intended purpose of meaningfully alleviating burdens for public 
educational institutions.

Infeasibility for Public Educational Institutions

    Many commenters, including some commenters affiliated with 
public educational institutions, asserted that the course content 
exceptions and limitations as proposed in the NPRM would not be 
workable for schools, and would almost inevitably result in delays 
in access to course content for students and parents with 
disabilities. Commenters provided varying reasons for these 
conclusions.
    Some commenters argued that because making course content 
accessible often takes time and intentionality to implement, it is 
more efficient and effective for public educational institutions to 
create policies and procedures to make course content accessible 
proactively, without waiting for a student with a disability (or 
student with a parent with a disability) to enroll and then making 
content accessible reactively.\161\ Some commenters pointed out that 
although the Department proposed the course content exceptions in an 
effort to make it easier for public educational institutions to 
comply with subpart H of this part, the exceptions would in fact 
likely result in more work for entities struggling to remediate 
content on the back end.
---------------------------------------------------------------------------

    \161\ Many comments on this topic indicated that they were 
drawing from the philosophy of ``universal design.'' See, e.g., 29 
U.S.C. 3002(19).
---------------------------------------------------------------------------

    Commenters noted that in many cases, public educational 
institutions do not generate course content themselves, but instead 
procure such content through third-party vendors. As a result, some 
commenters stated, public educational institutions may be dependent 
on vendors to make their course content accessible, many of which 
are unable or unwilling to respond to ad hoc requests for 
accessibility within the expedited time frames that would be 
required to comply with the limitations to the proposed exceptions. 
Some commenters argued that it is more efficient and effective to 
incentivize third-party vendors to make course content produced for 
public educational institutions accessible on the front end. 
Otherwise, some commenters contended, it may fall to

[[Page 31373]]

individual instructors to scramble to make course content accessible 
at the last minute, regardless of those instructors' background or 
training on making content accessible, and despite the fact that 
many instructors already have limited time to devote to teaching and 
preparing for class. One commenter noted that public educational 
institutions can leverage their contracting power to choose only to 
work with third-party vendors that can offer accessible content. 
This commenter noted that there is precedent for this approach, as 
many universities and college stores already leverage their 
contracting power to limit participation in certain student discount 
programs to third-party publishers that satisfy accessibility 
requirements. Some commenters suggested that rulemaking in this area 
will spur vendors, publishers, and creators to improve the 
accessibility of their offerings.
    Some commenters also observed that even if public educational 
institutions might be able to make a subset of content accessible 
within the compressed time frames provided under the proposed 
exceptions, it could be close to impossible for institutions to do 
so for all course content for all courses, given the wide variation 
in the size and type of course content. Some commenters noted that 
content for science, technology, engineering, and mathematics 
courses may be especially difficult to remediate under the expedited 
time frames provided under the proposed exceptions. Some commenters 
indicated that it is more effective for public educational 
institutions to conduct preparations in advance to make all 
materials accessible from the start. One commenter asserted that 
remediating materials takes, on average, twice as long as developing 
materials that are accessible from the start. Some commenters also 
pointed out that it might be confusing for public educational 
institutions to have two separate standards for the accessibility of 
course content depending on whether there is a student (or student 
with a parent) with a disability in a particular course.
    Many commenters took particular issue with the five-day 
remediation time frame for course content when a school becomes on 
notice after the start of the term that there is a student or parent 
with a disability who needs accessible course content. Some 
commenters argued that this time frame was too short for public 
entities to ensure the accessibility of all course content for a 
particular course, while simultaneously being too long to avoid 
students with disabilities falling behind. Some commenters noted 
that the five-day time frame would be particularly problematic for 
short courses that occur during truncated academic terms, which may 
last only a small number of days or weeks.
    Some commenters also argued that the course content exceptions 
would create a series of perverse incentives for public educational 
institutions and the third-party vendors with whom they work, such 
as incentivizing institutions to neglect accessibility until the 
last minute and attempt to rely on the fundamental alteration or 
undue burdens limitations more frequently when they are unable to 
comply as quickly as required under subpart H of this part. Some 
commenters also contended that the course content exceptions would 
undermine public educational institutions' settled expectations 
about what level of accessibility is required for course content and 
would cause the institutions that already think about accessibility 
proactively to regress to a more reactive model. Some commenters 
asserted that because the course content exceptions would cover only 
password-protected or otherwise secured content, the exceptions 
would also incentivize public educational institutions to place 
course content behind a password-protected wall, thereby making less 
content available to the public as a whole.
    Some commenters asserted that if the exceptions were not 
included in subpart H of this part, the existing fundamental 
alteration and undue burdens limitations would provide sufficient 
protection for public educational institutions. One commenter also 
suggested that making all course content accessible would offer 
benefits to public educational institutions, as accessible content 
often requires less maintenance than inaccessible content and can 
more readily be transferred between different platforms or accessed 
using different tools. This commenter contended that by relying on 
accessible content, public educational institutions would be able to 
offer better services to all students, because accessible content is 
more user friendly and provides value for all users.
    Some commenters pointed out that there are other factors that 
will ease the burden on public educational institutions of complying 
with subpart H of this part without the course content exceptions 
proposed in the NPRM. For example, one commenter reported that 
elementary and secondary curriculum materials are generally procured 
at the district level. Thus, course content is generally the same 
for all schools in a given district. This commenter argued that 
school districts could therefore address the accessibility of most 
course materials for all schools in their district at once by making 
digital accessibility an evaluation criterion in their procurement 
process.

Impact on Individuals With Disabilities

    As noted elsewhere in this appendix, many commenters asserted 
that the course content exceptions proposed in the NPRM could result 
in an untenable situation in which public educational institutions 
would likely be unable to fully respond to individualized requests 
for accessible materials, potentially leading to widespread 
noncompliance with the technical standard and delays in access to 
course content for students and parents with disabilities. Many 
commenters emphasized the negative impact that this situation would 
have on individuals with disabilities.
    Some commenters highlighted the pervasive discrimination that 
has affected generations of students with disabilities and prevented 
them from obtaining equal access to education, despite existing 
statutory and regulatory obligations. As one recent example, some 
commenters cited studies conducted during the COVID-19 pandemic that 
demonstrated inequities in access to education for students with 
disabilities, particularly in the use of web-based educational 
materials.\162\ Commenters stated that due to accessibility issues, 
students with disabilities have sometimes been unable to complete 
required assignments, needed continuous support from others to 
complete their work, and as a result have felt frustrated, 
discouraged, and excluded. Some commenters also reported that some 
students with disabilities have dropped a class, taken an 
incomplete, or left their academic program altogether because of the 
inaccessibility of their coursework. Some commenters argued that the 
proposed course content exceptions would exacerbate this 
discouraging issue and would continue to exclude students with 
disabilities from equally accessing an education and segregate them 
from their classmates.
---------------------------------------------------------------------------

    \162\ Arielle M. Silverman et al., Access and Engagement III: 
Reflecting on the Impacts of the COVID-19 Pandemic on the Education 
of Children Who Are Blind or Have Low Vision, Am. Found. for the 
Blind (June 2022), https://afb.org/sites/default/files/2022-06/AFB_AccessEngagement_III_Report_Accessible_FINAL.pdf (A Perma 
archive link was unavailable for this citation.); L. Penny Rosenblum 
et al., Access and Engagement II: An Examination of How the COVID-19 
Pandemic Continued to Impact Students with Visual Impairments, Their 
Families, and Professionals Nine Months Later, Am. Found. for the 
Blind (May 2021), https://static.afb.org/legacy/media/AFB_AccessEngagement_II_Accessible_F2.pdf?_ga=2.176468773.1214767753 
[https://perma.cc/H5P4-JZAB]; see also L. Penny Rosenblum et al., 
Access and Engagement: Examining the Impact of COVID-19 on Students 
Birth-21 with Visual Impairments, Their Families, and Professionals 
in the United States and Canada, Am. Found. for the Blind (Oct. 
2020), https://afb.org/sites/default/files/2022-03/AFB_Access_Engagement_Report_Revised-03-2022.pdf [https://perma.cc/T3AY-ULAQ].
---------------------------------------------------------------------------

    Some commenters contended that the proposed exceptions would 
perpetuate the status quo by inappropriately putting the onus on 
students (or parents) with disabilities to request accessible 
materials on an individualized basis. Some commenters asserted that 
this can be problematic because some individuals may not recognize 
that they have an accessibility need that their school could 
accommodate and because requesting accessible materials is sometimes 
burdensome and results in unfair stigma or invasions of privacy. 
Some commenters noted that this may result in students or parents 
with disabilities not requesting accessible materials. Some 
commenters also argued that because these proposed exceptions would 
put public educational institutions in a reactionary posture and 
place burdens on already-overburdened instructors, some instructors 
and institutions might view requesting students as an inconvenience, 
in spite of their obligations not to discriminate against those 
students. One commenter noted that constantly having to advocate for 
accessibility for years on end can be exhausting for students with 
disabilities and damaging to their self-esteem, sense of belonging, 
and ability to engage in academic exploration.
    Some commenters also noted that the structure of the proposed 
exceptions would be in significant tension with the typical 
structure of a public educational institution's academic term. For 
example, some

[[Page 31374]]

commenters noted that students, particularly students at public 
postsecondary institutions, often have the opportunity to 
electronically review course syllabi and materials and ``shop'' the 
first sessions(s) of a particular course to determine whether they 
wish to enroll, enroll in a course late, or drop a course. 
Commenters stated that because these processes typically unfold 
quickly and early in the academic term, the proposed course content 
exceptions would make it hard or impossible for students with 
disabilities to take advantage of these options that are available 
to other students. Commenters also noted that the course content 
exceptions could interfere with students' ability to transfer to a 
new school in the middle of a term.
    Some commenters also stated many other ways in which the delays 
in access to course content likely resulting from these exceptions 
could disadvantage students with disabilities. Some commenters noted 
that even if public educational institutions were able to turn 
around accessible materials within the compressed time frames 
provided under the proposed exceptions--an unlikely result, for the 
reasons noted elsewhere in this appendix--students with disabilities 
still might be unable to access course materials as quickly as would 
be needed to fully participate in their courses. For example, some 
commenters stated that because students are often expected to 
complete reading assignments before the first day of class, it is 
problematic that the proposed exceptions did not require public 
educational institutions to make course content accessible before 
the first day of class for students who preregister. Some commenters 
also observed that because some students with disabilities do not 
file accessibility requests until after the start of the academic 
term, it would be impossible to avoid delays in access to course 
materials under the exceptions. Some commenters also noted that 
students are often expected to collaborate on assignments, and even 
a brief delay in access to course material could make it challenging 
or impossible for students with disabilities to participate in that 
collaborative process.
    Some commenters argued that in the likely outcome that schools 
are unable to provide accessible course content as quickly as the 
proposed limitations to the exceptions would require, the resulting 
delays could cause students with disabilities to fall behind in 
course readings and assignments, sometimes forcing them to withdraw 
from or fail the course. Some commenters noted that even if students 
were able to rely on others to assist them in reviewing inaccessible 
course materials, doing so is often slower and less effective, and 
can have a negative emotional effect on students, undermining their 
senses of independence and self-sufficiency.
    Some commenters took particular issue with the proposed 
exception for postsecondary course content. For example, some 
commenters asserted that it is often more onerous and complicated 
for students with disabilities to obtain accessible materials upon 
request in the postsecondary context, given that public 
postsecondary schools are not subject to the same obligations as 
public elementary and secondary institutions to identify students 
with disabilities under other laws addressing disability rights in 
the educational context. Accordingly, those commenters argued, the 
proposed exceptions might be especially harmful for postsecondary 
students with disabilities.
    Other commenters argued that the proposed exception for 
elementary and secondary course content was especially problematic 
because it would affect virtually every child with a disability in 
the country. Some commenters contended that this exception would 
undermine the requirements of other laws addressing disability 
rights in the educational context. Some commenters also noted that 
in the elementary and secondary school context, password-protected 
course sites often enable parents to communicate with their 
children's teachers, understand what their children are learning, 
keep track of any potential issues related to their child's 
performance, review time-sensitive materials like permission slips, 
and obtain information about important health and safety issues 
affecting their children. Some commenters opined that the proposed 
course content exceptions could make it hard or impossible for 
parents with disabilities to be involved in their children's 
education in these ways.
    Some commenters contended that the proposed course content 
exceptions would be problematic in the wake of the COVID-19 
pandemic, which has led to a rise in purely online courses. One 
commenter pointed out that students with disabilities may be more 
likely to enroll in purely online courses for a variety of reasons, 
including that digital content tends to be more flexible and 
operable with assistive devices, and it is therefore especially 
important to ensure that online courses are fully accessible. At 
least one commenter also stated that the proposed course content 
exceptions would have treated students--some of whom pay tuition--
less favorably than the general public with respect to accessible 
materials.
    Although the Department anticipated that the limitations to the 
proposed course content exceptions would naturally result in course 
materials becoming accessible over time, some commenters took issue 
with that prediction. Some commenters argued that because there is 
significant turnover in instructors and course content, and because 
the proposed limitations to the exceptions did not require content 
to remain accessible once a student with a disability was no longer 
in a particular course, the limitations to the exceptions as drafted 
in the NPRM would not be likely to ensure a fully accessible future 
in this area.

Limited Support for Course Content Exceptions

    Although many commenters expressed opposition to the course 
content exceptions, some commenters, including some commenters 
affiliated with public educational institutions, expressed support 
for some form of exception for course content. Some commenters 
argued that it would be very challenging or infeasible for public 
educational institutions to comply with subpart H of this part in 
the absence of an exception, particularly when much of the content 
is controlled by third-party vendors. Some commenters also noted 
that public educational institutions may be short-staffed and have 
limited resources to devote towards accessibility. Some commenters 
stated that frequent turnover in faculty may make it challenging to 
ensure that faculty members are trained on accessibility issues. One 
commenter pointed out that requiring schools to make all course 
content accessible may present challenges for professors, some of 
whom are accustomed to being able to select course content without 
regard to its accessibility. Notably, however, even among those 
commenters who supported the concept of an exception, many did not 
support the exceptions as drafted in the NPRM, in part because they 
did not believe the proposed remediation time frames were realistic.

Approach to Course Content in Subpart H of This Part

    Having reviewed the public comments, the Department believes it 
is appropriate to, as many commenters suggested, not include the 
previously proposed course content exceptions in subpart H of this 
part. For many of the reasons noted by commenters, the Department 
has concluded that the proposed exceptions would not meaningfully 
ease the burden on public educational institutions and would 
significantly exacerbate educational inequities for students with 
disabilities. The Department has concluded that the proposed 
exceptions would have led to an unsustainable and infeasible 
framework for public entities to make course content accessible, 
which would not have resulted in reliable access to course content 
for students with disabilities. As many commenters noted, it would 
have been extremely burdensome and sometimes even impossible for 
public educational institutions to comply consistently with the 
rapid remediation time frames set forth in the limitations to the 
proposed exceptions in the NPRM, which would likely have led to 
widespread delays in access to course content for students with 
disabilities. While extending the remediation time frames might have 
made it more feasible for public educational institutions to comply 
under some circumstances, this extension would have commensurately 
delayed access for students with disabilities, which would have been 
harmful for the many reasons noted by commenters. The Department 
believes that it is more efficient and effective for public 
educational institutions to use the two- or three-year compliance 
time frame to prepare to make course content accessible proactively, 
instead of having to scramble to remediate content reactively.
    Accordingly, under subpart H of this part, password-protected 
course content will be treated like any other content and will 
generally need to conform to WCAG 2.1 Level AA. To the extent that 
it is burdensome for public educational institutions to make all of 
their content, including course content, accessible, the Department 
believes subpart H contains a series of mechanisms that are designed 
to make it feasible for these institutions to comply, including the 
delayed compliance dates discussed in Sec.  35.200, the

[[Page 31375]]

other exceptions discussed in Sec.  35.201, the provisions relating 
to conforming alternate versions and equivalent facilitation 
discussed in Sec. Sec.  35.202 and 35.203, the fundamental 
alteration and undue burdens limitations discussed in Sec.  35.204, 
and the approach to measuring compliance with Sec.  35.200 discussed 
in Sec.  35.205.

Alternative Approaches Considered

    There were some commenters that supported retaining the proposed 
course content exceptions with revisions. Commenters suggested a 
wide range of specific revisions, examples of which are discussed in 
this section. The Department appreciates the variety of thoughtful 
approaches that commenters proposed in trying to address the 
concerns that would arise under the previously proposed course 
content exceptions. However, for the reasons noted in this section, 
the Department does not believe that the commenters' proposed 
alternatives would avoid the issues associated with the exceptions 
proposed in the NPRM. In addition, although many commenters 
suggested requiring public entities to follow specific procedures to 
comply with subpart H of this part, the sheer variety of proposals 
the Department received from commenters indicates the harm from 
being overly prescriptive in how public educational institutions 
comply with subpart H. Subpart H provides educational institutions 
with the flexibility to determine how best to bring their content 
into compliance within the two or three years they have to begin 
complying with subpart H.
    Many commenters suggested that the Department should require all 
new course content to be made accessible more quickly, while 
providing a longer time period for public entities to remediate 
existing course content. There were a wide range of proposals from 
commenters about how this could be implemented. Some commenters 
suggested that the Department could set up a prioritization 
structure for existing content, requiring public educational 
institutions to prioritize the accessibility of, for example, entry-
level course content; content for required courses; content for 
high-enrollment courses; content for courses with high rates of 
droppage, withdrawal, and failing grades; content for the first few 
weeks of all courses; or, in the postsecondary context, content in 
academic departments in which students with disabilities have 
decided to major.
    The Department does not believe this approach would be feasible. 
Treating new course content differently than existing course content 
could result in particular courses being partially accessible and 
partially inaccessible, which could be confusing for both 
educational institutions and students, and make it challenging for 
students with disabilities to have full and timely access to their 
courses. Moreover, even under this hybrid approach, the Department 
would presumably need to retain remediation time frames for entities 
to meet upon receiving a request to make existing course content 
accessible. For the reasons discussed in this section, it would be 
virtually impossible to set forth a remediation time frame that 
would provide public educational institutions sufficient time to 
make content accessible without putting students with disabilities 
too far behind their peers. In addition, given the wide variation in 
types of courses and public educational institution structures, it 
would be difficult to set a prioritization structure for existing 
content that would be workable across all such institutions.
    Some commenters suggested that the Department should set an 
expiration date for the course content exceptions. The Department 
does not believe this would be a desirable solution because the 
problems associated with the proposed exceptions--namely the harm to 
individuals with disabilities stemming from delayed access to course 
content and the likely infeasibility of complying with the expedited 
time frames set forth in the limitations to the exceptions--would 
likely persist during the lifetime of the exceptions.
    Some commenters suggested that the Department could retain the 
exceptions and accompanying limitations but revise their scope. For 
example, commenters suggested that the Department could revise the 
limitations to the exceptions to require public educational 
institutions to comply only with the WCAG 2.1 success criteria 
relevant to the particular student requesting accessible materials. 
Although this might make it easier for public educational 
institutions to comply in the short term, this approach would still 
leave public entities in the reactionary posture that so many other 
commenters criticized in this context and would dramatically reduce 
the speed at which course content would become accessible to all 
students. As another example, some commenters recommended that 
instead of creating exceptions for all password-protected course 
content, the Department could create exceptions from complying with 
particular WCAG 2.1 success criteria that may be especially onerous. 
The Department does not believe this piecemeal approach is 
advisable, because it would result in course content being only 
partially accessible, which would reduce predictability for 
individuals with disabilities. This approach could also make it 
confusing for public entities to determine the applicable technical 
standard. Some commenters suggested that the Department should 
require public entities to prioritize certain types of content that 
are simpler to remediate. Others suggested that the Department could 
require certain introductory course documents, like syllabi, to be 
accessible across the board. One commenter suggested that the 
Department require public educational institutions to make 20 
percent of their course materials accessible each semester. The 
Department believes that these types of approaches would present 
similar issues as those discussed in this paragraph and would result 
in courses being only partially accessible, which would reduce 
predictability for individuals with disabilities and clarity for 
public entities. These approaches would also limit the flexibility 
that public entities have to bring their content into compliance in 
the order that works best for them during the two or three years 
they have to begin complying with subpart H of this part.
    Some commenters suggested that the Department should revise the 
remediation timelines in the limitations to the course content 
exceptions. For example, one commenter suggested that the five-day 
remediation time frame should be reduced to three days. Another 
commenter suggested the five-day remediation time frame could be 
expanded to 10 to 15 days. Some commenters suggested that the time 
frame should be fact-dependent and should vary depending on factors 
such as how often the class meets and the type of content. Others 
recommended that the Department not adopt a specific required 
remediation time frame, but instead provide that a 10-business-day 
remediation time frame would be presumptively permissible.
    The conflicting comments on this issue illustrate the challenges 
associated with setting remediation time frames in this context. If 
the Department were to shorten the remediation time frames, it would 
make it even harder for public educational institutions to comply, 
and commenters have already indicated that the previously proposed 
remediation time frames would not be workable for those 
institutions. If the Department were to lengthen the remediation 
time frames, it would further exacerbate the inequities for students 
with disabilities that were articulated by commenters. The 
Department believes the better approach is to not include the course 
content exceptions in subpart H of this part to avoid the need for 
public educational institutions to make content accessible on an 
expedited time frame on the back end, and to instead require public 
entities to treat course content like any other content covered by 
subpart H.
    Some commenters suggested that the Department should take 
measures to ensure that once course content is accessible, it stays 
accessible, including by requiring institutions to regularly conduct 
course accessibility checks. Without the course content exceptions 
proposed in the NPRM, the Department believes these commenters' 
concerns are addressed because course content will be treated like 
all other content under Sec.  35.200, which requires public entities 
to ensure on an ongoing basis that the web content and mobile apps 
they provide or make available are readily accessible to and usable 
by individuals with disabilities.
    Some commenters suggested that the Department should give public 
educational institutions additional time to comply with subpart H of 
this part beyond the compliance time frames specified in Sec.  
35.200(b). The Department does not believe this would be 
appropriate. Although the requirement for public educational 
institutions to provide accessible course content and comply with 
title II is not new, this requirement has not resulted in widespread 
equal access for individuals with disabilities to public entities' 
web content and mobile apps. Giving public educational institutions 
additional time beyond the two- to three-year compliance time frames 
set forth in Sec.  35.200(b) would potentially prolong the exclusion 
of individuals with disabilities from certain educational programs, 
which would be especially problematic given that some of those 
programs last only a few years

[[Page 31376]]

in total, meaning that individuals with disabilities might, for 
example, be unable to access their public university's web content 
and mobile apps for the entire duration of their postsecondary 
career. While access to public entities' web content and mobile apps 
is important for individuals with disabilities in all contexts, it 
is uniquely critical to the public educational experience for 
students with disabilities, because exclusion from that content and 
those apps would make it challenging or impossible for those 
individuals to keep up with their peers and participate in their 
courses, which could have lifelong effects on career outcomes. In 
addition, the Department received feedback indicating that the 
course content offered by many public educational institutions is 
frequently changing. The Department is therefore not convinced that 
giving public educational institutions additional time to comply 
with subpart H would provide meaningful relief to those entities. 
Public educational institutions will continually need to make new or 
changed course content accessible after the compliance date. 
Extending the compliance date would, therefore, provide limited 
relief while having a significant negative impact on individuals 
with disabilities. Moreover, regardless of the compliance date of 
subpart H, public educational institutions have an ongoing 
obligation to ensure that their services, programs, and activities 
offered using web content and mobile apps are accessible to 
individuals with disabilities on a case-by-case basis in accordance 
with their existing obligations under title II of the ADA.\163\ 
Accordingly, even if the Department were to further delay the 
compliance time frames for public educational institutions, those 
institutions would not be able to simply defer all accessibility 
efforts in this area. The Department also believes it is appropriate 
to treat public educational institutions the same as other public 
entities with respect to compliance time frames, which will promote 
consistency and predictability for individuals with disabilities. 
Under this approach, some public educational institutions will 
qualify as small public entities and will be entitled to an extra 
year to comply, while other public educational institutions in 
larger jurisdictions will need to comply within two years.
---------------------------------------------------------------------------

    \163\ See Sec. Sec.  35.130(b)(1)(ii) and (7) and 35.160.
---------------------------------------------------------------------------

    Some commenters recommended that the Department give public 
educational institutions more flexibility with respect to their 
compliance with subpart H of this part. For example, some commenters 
suggested that the Department should give public educational 
institutions additional time to conduct an assessment of their web 
content and mobile apps and develop a plan for achieving compliance. 
Some commenters suggested the Department should give public 
educational institutions flexibility to stagger their compliance as 
they see fit and to focus on the accessibility of those materials 
that they consider most important. The Department does not believe 
such deference is appropriate. As history has demonstrated, 
requiring entities to comply with their nondiscrimination 
obligations without setting clear and predictable standards for when 
content must be made accessible has not resulted in widespread web 
and mobile app accessibility. The Department therefore believes it 
is critical to establish clear and consistent requirements for 
public entities to follow in making their web content and mobile 
apps accessible.
    As noted in the preceding paragraph, although the Department 
believes it is important to set clear and consistent requirements 
for public educational institutions, the Department does not believe 
it is appropriate to be overly prescriptive with respect to the 
procedures that those institutions must follow to comply with 
subpart H of this part. Some commenters suggested that the 
Department should require public educational institutions to take 
particular steps to comply with subpart H, such as by holding 
certain trainings for faculty and staff and dedicating staff 
positions and funding to accessibility. The Department believes it 
is appropriate to allow public educational institutions to determine 
how best to allocate their resources, so long as they satisfy the 
requirements of subpart H.
    Some commenters suggested that the Department should adopt a 
more permissive approach to conforming alternate versions for public 
educational institutions. Commenters also suggested that the 
Department allow public educational institutions to provide an 
equally effective method of alternative access in lieu of directly 
accessible, WCAG 2.1 Level AA-conforming versions of materials. For 
the reasons noted in the discussion of Sec.  35.202 in this 
appendix, the Department believes that permitting public entities to 
rely exclusively on conforming alternate versions when doing so is 
not necessary for technical or legal reasons could result in 
segregation of people with disabilities, which would be inconsistent 
with the ADA's core principles of inclusion and integration.\164\ 
The same rationale would apply to public educational institutions 
that wish to provide an equally effective method of alternative 
access to individuals with disabilities.
---------------------------------------------------------------------------

    \164\ See, e.g., 42 U.S.C. 12101(a)(2) (finding that society has 
tended to isolate and segregate individuals with disabilities); 
Sec.  35.130(b)(1)(iv) (stating that public entities generally may 
not provide different or separate aids, benefits, or services to 
individuals with disabilities than is provided to others unless such 
action is necessary); id. Sec.  35.130(d) (requiring that public 
entities administer services, programs, and activities in the most 
integrated setting appropriate).
---------------------------------------------------------------------------

    Some commenters argued that the Department should provide 
additional resources, funding, and guidance to public educational 
institutions to help them comply with subpart H of this part. The 
Department notes that it will issue a small entity compliance 
guide,\165\ which should help public educational institutions better 
understand their obligations under subpart H. The Department also 
notes that there are free and low-cost training materials available 
that would help public entities to produce content compliant with 
WCAG 2.1 Level AA. In addition, although the Department does not 
currently operate a grant program to assist public entities in 
complying with the ADA, the Department will consider offering 
additional technical assistance and guidance in the future to help 
entities better understand their obligations.
---------------------------------------------------------------------------

    \165\ See Public Law 104-121, sec. 212, 110 Stat. at 858.
---------------------------------------------------------------------------

    One commenter suggested that the Department should create a list 
of approved third-party vendors for public educational institutions 
to use to obtain accessible content. Any such specific list that the 
Department could provide is unlikely to be helpful given the rapid 
pace at which software and contractors' availability changes. Public 
entities may find it useful to consult other publicly available 
resources that can assist in selecting accessibility evaluation 
tools and experts.\166\ Public entities do not need to wait for the 
Department's guidance before consulting with technical experts and 
using resources that already exist.
---------------------------------------------------------------------------

    \166\ See, e.g., W3C, Evaluating Web Accessibility Overview, 
https://www.w3.org/WAI/test-evaluate/ [https://perma.cc/6RDS-X6AR] 
(Aug. 1, 2023).
---------------------------------------------------------------------------

    One commenter suggested that the Department should require 
public educational institutions to offer mandatory courses on 
accessibility to students pursuing degrees in certain fields, such 
as computer science, information technology, or computer information 
systems. This commenter argued that this approach would increase the 
number of information technology professionals in the future who 
have the skills to make content accessible. The Department believes 
this suggestion is outside of the scope of subpart H of this part, 
which focuses on web and mobile app accessibility under title II. 
The Department notes that public educational institutions are free 
to offer such courses if they so choose.
    One commenter suggested that if the course content exceptions 
were retained, the Department should explicitly require public 
educational institutions to provide clear notice to students with 
disabilities on whether a particular piece of course content is 
accessible and how to request accessible materials. The Department 
believes these concerns are addressed by the decision not to include 
the course content exceptions in subpart H of this part, which 
should generally obviate the need for students with disabilities to 
make individualized requests for course content that complies with 
WCAG 2.1 Level AA.
    Many commenters expressed concern about the extent to which 
public educational institutions are dependent on third parties to 
ensure the accessibility of course content, and some commenters 
suggested that instead of or in addition to regulating public 
educational institutions, the Department should also regulate the 
third parties with which those institutions contract to provide 
course materials. Because subpart H of this part is issued under 
title II of the ADA, it does not apply to private third parties, and 
the ultimate responsibility for complying with subpart H rests with 
public entities. However, the Department appreciates the concerns 
expressed by commenters that public educational institutions may 
have limited power to require third-party vendors to make content 
accessible on an expedited,

[[Page 31377]]

last-minute basis. The Department believes that not including the 
course content exceptions in subpart H--coupled with the delayed 
compliance dates in subpart H--will put public educational 
institutions in a better position to establish contracts with third-
party vendors with sufficient lead time to enable the production of 
materials that are accessible upon being created. One commenter 
pointed out that, currently, much of the digital content for courses 
for public educational institutions is created by a small number of 
digital publishers. Accordingly, if the rulemaking incentivizes 
those publishers to produce accessible content, that decision may 
enable hundreds of public educational institutions to obtain 
accessible content. The Department also expects that as a result of 
the rulemaking, there will be an increase in demand for accessible 
content from third-party vendors, and therefore a likely increase in 
the number of third-party vendors that are equipped to provide 
accessible content.
    Some commenters also expressed views about whether public 
educational institutions should be required to make posts by third 
parties on password-protected course websites accessible. The 
Department wishes to clarify that, because content on password-
protected course websites will be treated like any other content 
under subpart H of this part, posts by third parties on course 
websites may be covered by the exception for content posted by a 
third party. However, that exception only applies where the third 
party is not posting due to contractual, licensing, or other 
arrangements with the public entity. Accordingly, if the third party 
is acting on behalf of the public entity, the third-party posted 
content exception would not apply. The Department believes that 
whether particular third-party content qualifies for this exception 
will involve a fact-specific inquiry.

Other Issues Pertaining to Public Educational Entities and Public 
Libraries

    In connection with the proposed exceptions for password-
protected course content, the Department also asked if there were 
any particular issues the Department should consider regarding 
digital books, textbooks, or libraries. The Department received a 
variety of comments that addressed these topics.
    Some commenters raised issues pertaining to intellectual 
property law. In particular, commenters expressed different views 
about whether public entities can alter or change inaccessible 
electronic books created by third-party vendors to make them 
accessible for individuals with disabilities. Several commenters 
requested that the Department clarify how intellectual property law 
applies to subpart H of this part. Subpart H is not intended to 
interpret or clarify issues related to intellectual property law. 
Accordingly, the Department declines to make changes to subpart H in 
response to commenters or otherwise opine about public entities' 
obligations with respect to intellectual property law. However, as 
discussed with respect to Sec.  35.202, ``Conforming Alternate 
Versions,'' there may be some instances in which a public entity is 
permitted to make a conforming alternate version of web content 
where it is not possible to make the content directly accessible due 
to legal limitations.
    Some commenters also discussed the EPUB file format. EPUB is a 
widely adopted format for digital books.\167\ Commenters noted that 
EPUBs are commonly used by public entities and that they should be 
accessible. Commenters also stated that the exceptions for archived 
web content and preexisting conventional electronic documents at 
Sec.  35.201(a) and (b), should specifically address EPUBs, or that 
EPUBs should fall within the meaning of the PDF file format with 
respect to the definition of ``conventional electronic documents'' 
at Sec.  35.104. Commenters also suggested that other requirements 
should apply to EPUBs, including W3C's EPUB Accessibility 1.1 
standard \168\ and Editor's Draft on EPUB Fixed Layout 
Accessibility.\169\
---------------------------------------------------------------------------

    \167\ See W3C, EPUB 3.3: Recommendation, Sec.  1.1 Overview (May 
25, 2023), https://www.w3.org/TR/epub-33/ [https://perma.cc/G2WZ-3M9S].
    \168\ W3C, EPUB Accessibility 1.1: Recommendation (May 25, 
2023), https://www.w3.org/TR/epub-a11y-11/ [https://perma.cc/48A5-NC2B].
    \169\ W3C, EPUB Fixed Layout Accessibility: Editor's Draft (Dec. 
8, 2024), https://w3c.github.io/epub-specs/epub33/fxl-a11y/ [https://perma.cc/5SP7-VUHJ].
---------------------------------------------------------------------------

    As discussed with respect to Sec.  35.104, the Department did 
not change the definition of ``conventional electronic documents'' 
because it believes the current exhaustive list strikes the 
appropriate balance between ensuring access for individuals with 
disabilities and feasibility for public entities so that they can 
comply with subpart H of this part. The Department also declines to 
adopt additional technical standards or guidance specifically 
related to EPUBs. The WCAG standards were designed to be 
``technology neutral.'' \170\ This means that they are designed to 
be broadly applicable to current and future web technologies.\171\ 
The Department is concerned that adopting multiple technical 
standards related to various different types of web content could 
lead to confusion. However, the Department notes that subpart H 
allows for equivalent facilitation in Sec.  35.203, meaning that 
public entities could still choose to apply additional standards 
specifically related to EPUBs to the extent that the additional 
standards provide substantially equivalent or greater accessibility 
and usability as compared to WCAG 2.1 Level AA.
---------------------------------------------------------------------------

    \170\ W3C, Introduction to Understanding WCAG (June 20, 2023), 
https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU].
    \171\ See W3C, Understanding Techniques for WCAG Success 
Criteria (June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques [https://perma.cc/AMT4-XAAL].
---------------------------------------------------------------------------

    Some commenters also addressed public educational entities' use 
of digital textbooks in general. Commenters stated that many 
educational courses use digital materials, including digital 
textbooks, created by third-party vendors. Consistent with many 
commenters' emphasis that all educational course materials must be 
accessible under subpart H of this part, commenters also stated that 
digital textbooks need to be accessible under subpart H. Commenters 
stated that third-party vendors that create digital textbooks are in 
the best position to make that content accessible, and it is costly 
and burdensome for public entities to remediate inaccessible digital 
textbooks. While one commenter stated that there are currently many 
examples of accessible digital textbooks, other commenters stated 
that many digital textbooks are not currently accessible. A 
commenter also pointed out that certain aspects of digital books and 
textbooks cannot be made accessible where the layout and properties 
of the content cannot be changed without changing the meaning of the 
content, and they recommended that the Department create exceptions 
for certain aspects of digital books.
    After weighing all the comments, the Department believes the 
most prudent approach is to treat digital textbooks, including 
EPUBs, the same as all other educational course materials. The 
Department believes that treating digital textbooks, including 
EPUBs, in any other way would lead to the same problems commenters 
identified with respect to the proposed exceptions for password-
protected class or course content. For example, if the Department 
created a similar exception for digital textbooks, it could result 
in courses being partially accessible and partially inaccessible for 
certain time periods while books are remediated to meet the needs of 
an individual with a disability, which could be confusing for both 
educational institutions and students with disabilities. 
Furthermore, as discussed elsewhere in this appendix, it would be 
virtually impossible to set forth a remediation time frame that 
would provide public educational institutions sufficient time to 
make digital textbooks accessible without putting students with 
disabilities too far behind their peers. Accordingly, the Department 
did not make any changes to subpart H of this part to specifically 
address digital textbooks. The Department notes that if there are 
circumstances where certain aspects of digital textbooks cannot 
conform to WCAG 2.1 Level AA without changing the meaning of the 
content, public entities may assess whether the fundamental 
alteration or undue financial or administrative burdens limitations 
apply, as discussed in Sec.  35.204. As noted elsewhere in this 
appendix, the Department also expects that as a result of the 
rulemaking, there will be an increase in demand for accessible 
content from third-party vendors, and therefore a likely increase in 
the number of third-party vendors that are equipped to provide 
accessible digital textbooks.
    Some commenters also discussed circumstances in which public 
entities seek to modify particular web content to meet the specific 
needs of individuals with disabilities. One commenter suggested that 
the Department should provide public entities flexibility to focus 
on meeting the individual needs of students, rather than simply 
focusing on satisfying the requirements of WCAG 2.1 Level AA. The 
Department believes that the title II regulation provides public 
entities sufficient

[[Page 31378]]

flexibility to meet the needs of all individuals with disabilities.
    The Department also recognizes that IDEA established the 
National Instructional Materials Access Center (``NIMAC'') in 2004, 
to assist State educational agencies and local educational agencies 
with producing accessible instructional materials to meet the 
specific needs of certain eligible students with disabilities.\172\ 
The NIMAC maintains a catalog of source files for K-12 instructional 
materials saved in the National Instructional Materials 
Accessibility Standard (``NIMAS'') format, and certain authorized 
users and accessible media producers may download the NIMAS files 
and produce accessible instructional materials that are distributed 
to eligible students with disabilities through State systems and 
other organizations.\173\ The Department believes subpart H of this 
part is complementary to the NIMAC framework. In particular, if a 
public entity provides or makes available digital textbooks or other 
course content that conforms to WCAG 2.1 Level AA, but an individual 
with a disability still does not have equal access to the digital 
textbooks or other course content, the public entity may wish to 
assess on a case-by-case basis whether materials derived from NIMAS 
files can be used to best meet the needs of the individual. 
Alternatively, a public entity may wish to use materials derived 
from NIMAS files as a conforming alternate version where it is not 
possible to make the digital textbook or other course content 
directly accessible due to technical or legal limitations, 
consistent with Sec.  35.202.
---------------------------------------------------------------------------

    \172\ Assistance to States for the Education of Children With 
Disabilities, 85 FR 31374 (May 26, 2020).
    \173\ Nat'l Instructional Materials Access Center, About NIMAC, 
https://www.nimac.us/about-nimac/ [https://perma.cc/9PQ2-GLQM] (last 
visited Feb. 2, 2024).
---------------------------------------------------------------------------

    Some commenters also raised issues relating to public libraries. 
Commenters stated that libraries have varying levels of resources. 
Some commenters noted that libraries need additional accessibility 
training. One commenter requested that the Department identify 
appropriate accessibility resources and training, and another 
commenter recommended that the Department should consider allowing 
variations in compliance time frames for libraries and educational 
institutions based on their individual needs and circumstances. 
Commenters noted that digital content available through libraries is 
often hosted, controlled, or provided by third-party vendors, and 
libraries purchase subscriptions or licenses to use the material. 
Commenters stated that it is costly and burdensome for public 
libraries to remediate inaccessible third-party vendor content. 
However, one commenter highlighted a number of examples in which 
libraries at public educational institutions successfully negotiated 
licensing agreements with third-party vendors that included 
requirements related to accessibility. Several commenters pointed 
out that some public libraries also produce content themselves. For 
example, some libraries participate in the open educational resource 
movement, which promotes open and free digital educational 
materials, and some libraries either operate publishing programs or 
have a relationship with university presses.
    After weighing all the comments, the Department believes the 
most appropriate approach is to treat public libraries the same as 
other public entities in subpart H of this part. The Department is 
concerned that treating public libraries in any other way would lead 
to similar problems commenters identified with respect to the 
proposed exceptions for password-protected class or course content, 
especially because some public libraries are connected with public 
educational entities. With respect to comments about the resources 
available to libraries and the time frame for libraries to comply 
with subpart H, the Department also emphasizes that it is sensitive 
to the need to set a workable standard for all different types of 
public entities. The Department recognizes that public libraries can 
vary as much as any other group of public entities covered by 
subpart H, from small town libraries to large research libraries 
that are part of public educational institutions. Under Sec.  
35.200(b)(2), as under the NPRM, some public libraries will qualify 
as small public entities and will have an extra year to comply. 
Subpart H also includes exceptions that are intended to help ensure 
feasibility for public entities so that they can comply with subpart 
H and, as discussed in Sec.  35.204, public entities are not 
required to undertake actions that would represent a fundamental 
alteration in the nature of a service, program, or activity or 
impose undue financial and administrative burdens. The Department 
also notes there that there are free and low-cost training materials 
available that would help public entities to produce content 
compliant with WCAG 2.1 Level AA. Accordingly, the Department has 
not made any changes to subpart H to specifically address public 
libraries.
    Some commenters also noted that public libraries may have 
collections of materials that are archival in nature, and discussed 
whether such materials should be covered by an exception. Subpart H 
of this part contains an exception for archived web content that (1) 
was created before the date the public entity is required to comply 
with subpart H, reproduces paper documents created before the date 
the public entity is required to comply with subpart H, or 
reproduces the contents of other physical media created before the 
date the public entity is required to comply with subpart H; (2) is 
retained exclusively for reference, research, or recordkeeping; (3) 
is not altered or updated after the date of archiving; and (4) is 
organized and stored in a dedicated area or areas clearly identified 
as being archived. In addition, subpart H contains an exception for 
preexisting conventional electronic documents, unless such documents 
are currently used to apply for, gain access to, or participate in a 
public entity's services, programs, or activities. The Department 
addressed these exceptions in more detail in the section-by-section 
analysis of Sec.  35.104, containing the definitions of ``archived 
web content'' and ``conventional electronic documents''; Sec.  
35.201(a), the exception for archived web content; and Sec.  
35.201(b), the exception for preexisting conventional electronic 
documents.

Individualized, Password-Protected or Otherwise Secured Conventional 
Electronic Documents

    In Sec.  35.201(d), the Department has set forth an exception to 
the requirements of Sec.  35.200 for conventional 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 web content and mobile apps to provide 
access to conventional electronic documents for their customers 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 
conventional electronic document versions of test results and 
scanned medical records to their patients. Unlike many other types 
of content covered by subpart H of this part, these documents are 
relevant only to an individual member of the public, and in many 
instances, the individuals who are entitled to view a particular 
individualized conventional electronic document will not need an 
accessible version.
    While public entities, of course, have existing title II 
obligations to provide accessible versions of individualized, 
password-protected or otherwise secured conventional electronic 
documents in a timely manner when those documents pertain to 
individuals with disabilities, or otherwise provide the information 
contained in the documents to the relevant individual,\174\ the 
Department recognizes that it may be too burdensome for some public 
entities to make all such documents conform to WCAG 2.1 Level AA, 
regardless of whether the individual to whom the document pertains 
needs such access. The goal of this exception is to give public 
entities flexibility to provide such documents, or the information 
contained within such documents, to the individuals with 
disabilities to whom they pertain in the manner that the entities 
determine will be most efficient. Many public entities may retain 
and produce a large number of individualized, password-protected or 
otherwise secured conventional electronic documents, and may find 
that remediating these documents--particularly ones that have been 
scanned from paper copies--involves a more time- and resource-
intensive process than remediating other types of web content. In 
that scenario, the Department believes that it would be most 
impactful for public entities to focus their resources on making 
versions that are accessible to those individuals who need them. 
However, some public entities may conclude that it is most efficient 
or effective to make all individualized, password-protected or 
otherwise secured conventional electronic documents accessible by 
using, for example, an accessible template to generate such 
documents, and subpart H of this part preserves flexibility for 
public entities that

[[Page 31379]]

wish to take that approach. This approach is consistent with the 
broader title II regulatory framework. For example, public utility 
companies are not required to affirmatively mail accessible bills to 
all customers. Instead, the companies need only provide accessible 
bills to those customers who need them because of a disability.
---------------------------------------------------------------------------

    \174\ See Sec. Sec.  35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------

    This exception is limited to ``conventional electronic 
documents'' as defined in 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 medical 
provider makes individualized medical records available on a 
password-protected web platform as HTML content (rather than a PDF), 
that content would not be subject to this exception. Those HTML 
records, therefore, would need to be made accessible in accordance 
with Sec.  35.200. On the other hand, if a public entity makes 
individualized records available on a password-protected web 
platform as PDF documents, those documents would fall under this 
exception. In addition, although the exception would apply to 
individualized, password-protected or otherwise secured conventional 
electronic documents, the exception would not apply to the platform 
on which the public entity makes those documents available. The 
public entity would need to ensure that that platform complies with 
Sec.  35.200. Further, web content and content in mobile apps that 
does not take the form of individualized, password-protected or 
otherwise secured conventional electronic documents but instead 
notifies users about the existence of such documents must still 
conform to WCAG 2.1 Level AA unless it is covered by another 
exception. For example, a public hospital's health records portal 
may include a list of links to download individualized, password-
protected PDF medical records. Under WCAG 2.1 Success Criterion 
2.4.4, a public entity would generally have to provide sufficient 
information in the text of the link alone, or in the text of the 
link together with the link's programmatically determined link 
context, so that a user could understand the purpose of each link 
and determine whether they want to access a given document.\175\
---------------------------------------------------------------------------

    \175\ See W3C, Understanding SC 2.4.4.: Link Purpose (In 
Context) (June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/link-purpose-in-context.html [https://perma.cc/RE3T-J9PN].
---------------------------------------------------------------------------

    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 does not address a specific 
customer's particular circumstances 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 does address a specific customer's 
circumstances.
    This exception applies only to password-protected or otherwise 
secured content. Content may be otherwise secured if it requires a 
member of the public to use 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 covered by the exception.
    The Department recognizes that there may be some overlap between 
the content covered by this exception and the exception for certain 
preexisting conventional electronic documents, Sec.  35.201(b). The 
Department notes that if web content is covered by the exception for 
individualized, password-protected or otherwise secured conventional 
electronic documents, it does not need to conform to WCAG 2.1 Level 
AA to comply with subpart H of this part, even if the content fails 
to qualify for another exception, such as the preexisting 
conventional electronic document exception. For example, a public 
entity might retain on its website an individualized, password-
protected unpaid water bill in a PDF format that was posted before 
the date the entity was required to comply with subpart H. Because 
the PDF would fall within the exception for individualized, 
password-protected or otherwise secured conventional electronic 
documents, the documents would not need to conform to WCAG 2.1 Level 
AA, regardless of how the preexisting conventional electronic 
documents exception might otherwise have applied.
    As noted elsewhere in this appendix, while the exception is 
meant to alleviate the potential burden on public entities of making 
all individualized, password-protected or otherwise secured 
conventional electronic documents generally accessible, individuals 
with disabilities must still be able to access information from 
documents that pertain to them.\176\ The Department emphasizes that 
even if certain content does not have to conform to the technical 
standard, public entities still need to ensure that their services, 
programs, and activities offered using web content and mobile apps 
are accessible to individuals with disabilities on a case-by-case 
basis in accordance with their existing obligations under title II 
of the ADA. These obligations include making reasonable 
modifications to avoid discrimination on the basis of disability, 
ensuring that communications with people with disabilities are as 
effective as communications with people without disabilities, and 
providing people with disabilities an equal opportunity to 
participate in or benefit from the entity's services, programs, or 
activities.\177\
---------------------------------------------------------------------------

    \176\ See Sec. Sec.  35.130(b)(1)(ii) and (b)(7) and 35.160.
    \177\ See id.
---------------------------------------------------------------------------

    The Department received comments expressing both support for and 
opposition to this exception. A supporter of the exception observed 
that, because many individualized, password-protected or otherwise 
secured conventional electronic documents do not pertain to a person 
with a disability and would never be accessed by a person with a 
disability, it is unnecessary to require public entities to devote 
resources to making all of those documents accessible at the outset. 
Some commenters suggested that it could be burdensome for public 
entities to make all of these documents accessible, regardless of 
whether they pertain to a person with a disability. Some commenters 
noted that even if some public entities might find it more efficient 
to make all individualized, password-protected or otherwise secured 
conventional electronic documents accessible from the outset, this 
exception is valuable because it gives entities flexibility to 
select the most efficient option to meet the needs of individuals 
with disabilities.
    The Department also received many comments opposing this 
exception. Commenters pointed out that it is often critical for 
individuals, including individuals with disabilities, to have timely 
access to individualized, password-protected or otherwise secured 
conventional electronic documents, because those documents may 
contain sensitive, private, and urgently needed information, such as 
medical test results, educational transcripts, or tax documents. 
Commenters emphasized the negative consequences that could result 
from an individual being unable to access these documents in a 
timely fashion, from missed bill payments to delayed or missed 
medical treatments. Commenters expressed concern that this exception 
could exacerbate existing inequities in access to government 
services for people with disabilities. Commenters argued that it is 
ineffective and inappropriate to continue to put the burden on 
individuals with disabilities to request accessible versions of 
individualized documents, particularly given that many individuals 
with disabilities may have repeated interactions with different 
public entities that generate a large number of individualized, 
password-protected or otherwise secured conventional electronic 
documents. One commenter contended that the inclusion of this 
exception is in tension with other statutes and Federal initiatives 
that are designed to make it easier for individuals to access 
electronic health information and other digital resources. 
Commenters contended that public entities often do not have robust, 
effective procedures under which people can make such requests and 
obtain accessible versions quickly without incurring invasions of 
privacy. Commenters argued that it can be cheaper and easier to make 
individualized conventional electronic documents accessible at the 
time they are created, instead of on a case-by-case basis, 
particularly given that many such documents are generated from 
templates, which can be made accessible relatively easily. 
Commenters argued that many public entities already make these sorts 
of documents accessible, pursuant to their longstanding ADA 
obligations, so introducing this exception might lead some entities 
to regress toward less overall accessibility. Some commenters 
suggested that if the exception is retained in subpart H of this 
part, the

[[Page 31380]]

Department should set forth specific procedures for public entities 
to follow when they are on notice of the need to make individualized 
documents accessible for a particular individual with a disability.
    After reviewing the comments, the Department has decided to 
retain this exception in subpart H of this part.\178\ The Department 
continues to believe that public entities often provide or make 
available a large volume of individualized, password-protected or 
otherwise secured conventional electronic documents, many of which 
do not pertain to individuals with disabilities, and it may be 
difficult to make all such documents accessible. Therefore, the 
Department believes it is sensible to permit entities to focus their 
resources on ensuring accessibility for the specific individuals who 
need accessible versions of those documents. If, as many commenters 
suggested, it is in fact more efficient and less expensive for some 
public entities to make all such documents accessible by using a 
template, there is nothing in subpart H that prevents public 
entities from taking that approach.
---------------------------------------------------------------------------

    \178\ The Department made a non-substantive change to the header 
of the exception to match the text of the exception.
---------------------------------------------------------------------------

    The Department understands the concerns raised by commenters 
about the potential burdens that individuals with disabilities may 
face if individualized password-protected or otherwise secured 
documents are not all made accessible at the time they are created 
and about the potential negative consequences for individuals with 
disabilities who do not have timely access to the documents that 
pertain to them. The Department reiterates that, even when documents 
are covered by this exception, the existing title II obligations 
require public entities to furnish appropriate auxiliary aids and 
services where necessary to ensure an individual with a disability 
has, for example, an equal opportunity to enjoy the benefits of a 
service.\179\ Such auxiliary aids and services could include, for 
example, providing PDFs that are accessible. In order for such an 
auxiliary aid or service to ensure effective communication, it must 
be provided ``in a timely manner, and in such a way as to protect 
the privacy and independence of the individual with a disability.'' 
\180\ Whether a particular solution provides effective communication 
depends on circumstances in the interaction, including the nature, 
length, complexity, and context of the communication.\181\ For 
example, the presence of an emergency situation or a situation in 
which information is otherwise urgently needed would impact what it 
would mean for a public entity to ensure it is meeting its effective 
communication obligations. Public entities can help to facilitate 
effective communication by providing individuals with disabilities 
with notice about how to request accessible versions of their 
individualized documents. The Department also notes that where, for 
example, a public entity is on notice that an individual with a 
disability needs accessible versions of an individualized, password-
protected PDF water bill, that public entity is generally required 
to continue to provide information from that water bill in an 
accessible format in the future, and the public entity generally may 
not require the individual with a disability to make repeated 
requests for accessibility. Moreover, while individualized, 
password-protected or otherwise secured conventional electronic 
documents are subject to this exception, any public-facing, web- or 
mobile app-based system or platform that a public entity uses to 
provide or make available those documents, or to allow the public to 
make accessibility requests, must itself be accessible under Sec.  
35.200 if it is not covered by another exception.
---------------------------------------------------------------------------

    \179\ See Sec.  35.160(b)(1). For more information about public 
entities' existing obligation to ensure that communications with 
individuals with disabilities are as effective as communications 
with others, see U.S. Dep't of Just., ADA Requirements: Effective 
Communication, ada.gov (Feb 28, 2020), https://www.ada.gov/resources/effective-communication/ [https://perma.cc/CLT7-5PNQ].
    \180\ See Sec.  35.160(b)(2).
    \181\ Id.
---------------------------------------------------------------------------

    The Department also reiterates that 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.\182\ For example, if a public medical provider has a 
policy under which administrative support staff are in charge of 
uploading PDF versions of X-ray images into patients' individualized 
accounts after medical appointments, but the provider knows that a 
particular patient is blind, the provider may need to modify its 
policy to ensure that a staffer with the necessary expertise 
provides an accessible version of the information the patient needs 
from the X-ray.
---------------------------------------------------------------------------

    \182\ See Sec.  35.130(b)(7).
---------------------------------------------------------------------------

    Some commenters suggested that the Department should require 
public entities to adopt specific procedures when they are on notice 
of an individual's need for accessible individualized, password-
protected or otherwise secured conventional electronic documents. 
For example, some commenters suggested that public entities should 
be required to establish a specific process through which 
individuals with disabilities can ``opt in'' to receiving accessible 
documents; to display instructions for how to request accessible 
versions of documents in specific, prominent places on their 
websites; to make documents accessible within a specified time frame 
after being on notice of the need for accessibility (suggested time 
frames ranged from 5 to 30 business days); or to remediate all 
documents that are based on a particular template upon receiving a 
request for remediation of an individualized document based on that 
template. Although the Department appreciates the need to ensure 
that individuals with disabilities can obtain easily accessible 
versions of individualized, password-protected or otherwise secured 
conventional electronic documents, the Department believes it is 
appropriate to provide flexibility for a public entity in how it 
reaches that particular goal on a case-by-case basis, so long as the 
entity's process satisfies the requirements of title II.\183\ 
Moreover, because the content and quantity of individualized, 
password-protected documents or otherwise secured may vary widely, 
from a one-page utility bill to thousands of pages of medical 
records, the Department does not believe it is workable to prescribe 
a set number of days under which a public entity must make these 
documents accessible. The wide range of possible time frames that 
commenters suggested, coupled with the comments the Department 
received on the remediation time frames that were associated with 
the previously proposed course content exceptions, helps to 
illustrate the challenges associated with selecting a specific 
number of days for public entities to remediate content.
---------------------------------------------------------------------------

    \183\ See Sec. Sec.  35.130(b)(1)(ii) and (b)(7) and 
35.160(b)(2).
---------------------------------------------------------------------------

    Some commenters suggested other revisions to the exception. For 
example, some commenters suggested that the Department could limit 
the exception to existing individualized, password-protected or 
otherwise secured conventional electronic documents, while requiring 
newly created documents to be automatically accessible. The 
Department does not believe it is advisable to adopt this revision. 
A central rationale of this exception--the fact that many 
individuals to whom individualized documents pertain do not need 
those documents in an accessible format--remains regardless of 
whether the documents at issue are existing or newly created.
    One commenter suggested the Department could create an 
expiration date for the exception. The Department does not believe 
this would be workable, because the challenges that public entities 
might face in making all individualized, password-protected or 
otherwise secured conventional electronic documents accessible 
across the board would likely persist even after any expiration 
date. One commenter suggested that the exception should not apply to 
large public entities, such as States. The Department believes that 
the rationales underlying this exception would apply to both large 
and small public entities. The Department also believes that the 
inconsistent application of this exception could create 
unpredictability for individuals with disabilities. Other commenters 
suggested additional revisions, such as limiting the exception to 
documents that are not based on templates; requiring public entities 
to remove inaccessible documents from systems of records once 
accessible versions of those documents have been created; and 
requiring public entities to use HTML pages, which may be easier to 
make accessible than conventional electronic documents, to deliver 
individualized information in the future. The Department believes it 
is more appropriate to give public entities flexibility in how they 
provide or make available individualized, password-protected or 
otherwise secured documents to the public, so long as those entities 
ensure that individuals with disabilities have timely access to the 
information contained in those documents in an accessible format 
that protects the privacy and independence of the individual with a 
disability.
    Some commenters asked the Department for additional 
clarification about how the exception would operate in practice. One 
commenter asked for clarification about how

[[Page 31381]]

this exception would apply to public hospitals and healthcare 
clinics, and whether the exception would apply when a patient uses a 
patient portal to schedule an appointment with their provider. The 
Department wishes to clarify that this exception is not intended to 
apply to all content or functionality that a public entity offers 
that is password-protected. Instead, this exception is intended to 
narrowly apply to individualized, password-protected or otherwise 
secured conventional electronic documents, which are limited to the 
following electronic file formats: PDFs, word processor file 
formats, presentation file formats, and spreadsheet file formats. 
Content that is provided in any other format is not subject to this 
exception. In addition, while individualized, password-protected or 
otherwise secured conventional electronic documents would be subject 
to the exception, the platform on which those documents are provided 
would not be subject to the exception and would need to conform to 
WCAG 2.1 Level AA. Accordingly, in the scenario raised by the 
commenter, the exception would not apply unless the public hospital 
or healthcare clinic used an individualized, password-protected or 
otherwise secured document in one of the file types listed in this 
paragraph for scheduling appointments.
    The Department also received some comments that suggested that 
the Department take actions outside the scope of subpart H of this 
part to make it easier for certain people with disabilities to 
access platforms that provide individualized, password-protected or 
otherwise secured documents. For example, the Department received a 
comment asking the Department to require public entities to offer 
``lower tech'' platforms that are generally simpler to navigate. 
While the Department recognizes that these are important issues, 
they are outside the scope of subpart H, and they are therefore not 
addressed in detail in subpart H.

Preexisting Social Media Posts

    Subpart H of this part includes an exception in Sec.  35.201(e) 
for preexisting social media posts, which provides that the 
requirements of Sec.  35.200 will not apply to a public entity's 
social media posts that were posted before the date the public 
entity is required to comply with subpart H. This means that public 
entities will need to ensure that their social media posts going 
forward are compliant with the requirements in subpart H beginning 
on the compliance date outlined in Sec.  35.200(b), but not before 
that date. The Department includes guidance on public entities' use 
of social media platforms going forward in the section entitled 
``Public Entities' Use of Social Media Platforms'' in the section-
by-section analysis of Sec.  35.200.
    The Department is including this exception in subpart H of this 
part because making preexisting social media posts accessible may be 
impossible or result in a significant burden. Commenters told the 
Department that many public entities have posted on social media 
platforms for several years, often numbering thousands of posts, 
which may not all be compliant with WCAG 2.1 Level AA. The benefits 
of making all preexisting social media posts accessible will likely 
be limited as these posts are generally intended to provide then-
current updates on platforms that are frequently refreshed with new 
information. The Department believes public entities' limited 
resources are better spent ensuring that current web content and 
content in mobile apps are accessible, rather than reviewing all 
preexisting social media posts for compliance or possibly deleting 
public entities' previous posts if remediation is impossible.
    In the NPRM, the Department did not propose any regulatory text 
specific to the web content and content in mobile apps that public 
entities make available via social media platforms. However, the 
Department asked for the public's feedback on adding an exception 
from coverage under subpart H of this part for a public entity's 
social media posts if they were posted before the effective date of 
subpart H.\184\ After reviewing public comment on this proposed 
exception, the Department has decided to include an exception in 
subpart H, which will apply to preexisting social media posts posted 
before the compliance date of subpart H.
---------------------------------------------------------------------------

    \184\ 88 FR 51962-51963.
---------------------------------------------------------------------------

    The Department emphasizes that even if preexisting social media 
posts do not have to conform to the technical standard, public 
entities still need to ensure that their services, programs, and 
activities offered using web content and mobile apps are accessible 
to people with disabilities on a case-by-case basis in accordance 
with their existing obligations under title II of the ADA. These 
obligations include making reasonable modifications to avoid 
discrimination on the basis of disability, ensuring that 
communications with people with disabilities are as effective as 
communications with people without disabilities, and providing 
people with disabilities an equal opportunity to participate in or 
benefit from the entity's services, programs, and activities.\185\
---------------------------------------------------------------------------

    \185\ Sections 35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------

    Most commenters supported an exception for preexisting social 
media posts, including commenters representing public entities and 
disability advocates. Commenters shared that making preexisting 
social media posts accessible would require a massive allocation of 
resources, and that in many cases these posts would be difficult or 
impossible to remediate. Commenters shared that in practice, public 
entities may need to delete preexisting social media posts to comply 
with subpart H of this part in the absence of this exception, which 
could result in a loss of historical information about public 
entities' activities.
    A few commenters shared alternative approaches to this 
exception. One commenter suggested that highlighted or so-called 
``pinned'' posts (e.g., social media posts saved at the top of a 
page) be required to be made accessible regardless of the posting 
date. Other commenters suggested that the exception should be 
limited so as not to cover emergency information or information 
pertinent to accessing core functions, expressing concern that these 
postings would continue to be inaccessible between publication of 
the final rule and the date that public entities are required to be 
in compliance with subpart H of this part.
    The Department agrees with the majority of commenters who 
supported the exception as described in the NPRM, for the reasons 
shared previously. The Department understands some commenters' 
concerns with respect to pinned posts as well as concerns with 
inaccessible postings made after publication of the final rule but 
before the compliance date. However, the Department believes that 
the approach provided in subpart H of this part appropriately 
balances a variety of competing concerns. In particular, the 
Department is concerned that it would be difficult to define pinned 
posts given the varied and evolving ways in which different social 
media platforms allow users to highlight and organize content, such 
that it could result in confusion. Further, the Department believes 
that the risk that preexisting pinned posts will stay pinned 
indefinitely is low, because public entities will likely still want 
to regularly update their pinned content. Also, requiring these 
pinned posts to be made accessible risks some of the remediation 
concerns raised earlier, as public entities may need to delete 
pinned posts where remediation is infeasible. The Department also 
has concerns with delineating what content should be considered 
``core'' or ``emergency'' content.
    For these reasons, the Department believes the appropriate 
approach is to set forth, as it does in Sec.  35.201(e), an 
exception from the requirements of Sec.  35.200 for all social media 
posts that were posted prior to the compliance date for subpart H of 
this part. The Department emphasizes, however, that after the 
compliance date, public entities must ensure all of their social 
media posts moving forward comply with subpart H.
    In the NPRM, the Department asked for the public's feedback on 
whether public entities' preexisting videos posted to social media 
platforms should be covered by an exception due to these same 
concerns or whether these platforms should otherwise be treated 
differently. After reviewing public comments with respect to social 
media, the Department does not believe it is prudent to single out 
any individual social media platform or subset of content on those 
platforms for unique treatment under subpart H of this part, as that 
could lead to confusion and be difficult to implement, especially as 
social media platforms continually evolve. The Department thus 
maintains that social media posts must be made accessible under 
Sec.  35.200 if they are posted after the compliance date of subpart 
H. The Department recognizes that due to the continually evolving 
nature of social media platforms, there may be questions about which 
content is covered by the exception to subpart H. While the 
Department is choosing not to single out platforms or subsets of 
platforms in subpart H for unique treatment, the Department 
encourages public entities to err on the side of ensuring 
accessibility where there are doubts about coverage, to maximize 
access for people with disabilities.
    Commenters also suggested other ways to address social media, 
such as providing that

[[Page 31382]]

public entities must create a timeline to incorporate accessibility 
features into their social media or providing that public entities 
can use separate accessible pages with all of their social media 
posts. The Department believes the balance struck with this 
exception in subpart H of this part is appropriate and gives public 
entities sufficient time to prepare to make all of their new social 
media posts accessible in accordance with subpart H after the 
compliance date, consistent with the other content covered by 
subpart H. One commenter also requested clarification on when social 
media posts with links to third-party content would be covered by 
subpart H. The Department notes that social media posts posted after 
the compliance date are treated consistent with all other web 
content and content in mobile apps, and the relevant exceptions may 
apply depending on the content at issue.

Section 35.202--Conforming Alternate Versions

    Section 35.202 sets forth the approach to ``conforming alternate 
versions.'' Under WCAG, a ``conforming alternate version'' is a 
separate web page that, among other things, 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.\186\ Conforming alternate 
versions are allowable under WCAG. For reasons explained in the 
following paragraphs, the Department believes it is important to put 
guardrails on when public entities may use conforming alternate 
versions under subpart H of this part. Section 35.202, therefore, 
specifies that the use of conforming alternate versions is permitted 
only in limited, defined circumstances, which represents a slight 
departure from WCAG 2.1. Section 35.202(a) states that a public 
entity may use conforming alternate versions of web content to 
comply with Sec.  35.200 only where it is not possible to make web 
content directly accessible due to technical or legal limitations.
---------------------------------------------------------------------------

    \186\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1: 
Recommendation, Conforming Alternate Version (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#dfn-conforming-alternate-version [https://perma.cc/GWT6-AMAN]. WCAG 2.1 provides three 
options for how a conforming alternate version can be reached--the 
Department does not modify those options with respect to conforming 
alternative versions under subpart H of this part.
---------------------------------------------------------------------------

    Generally, to conform to WCAG 2.1, a web page must be directly 
accessible in that it satisfies the success criteria for one of the 
defined levels of conformance--in the case of subpart H of this 
part, Level AA.\187\ However, as noted in the preceding paragraph, 
WCAG 2.1 also allows for the creation of a ``conforming alternate 
version.'' The 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. The Department 
believes that having direct access to accessible web content 
provides the best user experience for many individuals with 
disabilities, and it may be difficult to reliably maintain 
conforming alternate versions, which must be kept up to date. W3C 
explains that providing a conforming alternate version is intended 
to be a ``fallback option for conformance to WCAG and the preferred 
method of conformance is to make all content directly accessible.'' 
\188\ 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.
---------------------------------------------------------------------------

    \187\ See id.
    \188\ See W3C, Understanding Conformance, https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/QSG6-QCBL] 
(June 20, 2023).
---------------------------------------------------------------------------

    The Department is concerned that WCAG 2.1 can be interpreted to 
permit the development of two separate versions of a public entity's 
web content--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 content that is accessible. 
Such an approach would result in segregated access for individuals 
with disabilities and be inconsistent with how the ADA's core 
principles of inclusion and integration have historically been 
interpreted.\189\ The Department is also concerned that the frequent 
or unbounded creation of separate web content for individuals with 
disabilities may, in practice, result in unequal access to 
information and functionality. For example, and as discussed later 
in this section, the Department is concerned that an inaccessible 
conforming alternate version may provide information that is 
outdated or conflicting due to the maintenance burden of keeping the 
information updated and consistent with the main web content. As 
another example, use of a conforming alternate version may provide a 
fragmented, separate, or less interactive experience for people with 
disabilities because public entities may assume that interactive 
features are not financially worthwhile or otherwise necessary to 
incorporate in conforming alternate versions. Ultimately, as 
discussed later in this section, the Department believes there are 
particular risks associated with permitting the creation of 
conforming alternate versions where not necessitated by the presence 
of technical or legal limitations.
---------------------------------------------------------------------------

    \189\ See Sec.  35.130(b)(1)(iv) (stating that public entities 
generally may not provide different or separate aids, benefits, or 
services to individuals with disabilities than is provided to others 
unless such action is necessary); Sec.  35.130(d) (requiring that 
public entities administer services, programs, and activities in the 
most integrated setting appropriate); cf. 42 U.S.C. 12101(a)(2) 
(finding that society has tended to isolate and segregate 
individuals with disabilities).
---------------------------------------------------------------------------

    Due to the concerns about user experience, segregation of users 
with disabilities, unequal access to information, and maintenance 
burdens mentioned in the preceding paragraph, the Department is 
adopting 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 it is appropriate, Sec.  35.202(a) states that a public 
entity may use conforming alternate versions of web content to 
comply with Sec.  35.200 only where it is not possible to make 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 that cannot be changed due to legal 
reasons). The Department believes 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. 
However, Sec.  35.202 does not prohibit public entities from 
providing alternate versions of web pages in addition to their WCAG 
2.1 Level AA compliant main web page to possibly provide users with 
certain types of disabilities a better experience.
    The Department slightly revised the text that was proposed in 
the NPRM for this provision.\190\ To ensure consistency with other 
provisions of subpart H of this part, the previously proposed text 
for Sec.  35.202 was revised to refer to ``web content'' instead of 
``websites and web content.'' W3C's discussion of conforming 
alternate versions generally refers to ``web pages'' and 
``content.'' \191\ Other provisions of subpart H also refer to ``web 
content.'' Introducing the concept of ``websites'' in this section 
when the term is not used elsewhere in subpart H could cause 
unnecessary confusion, so the Department revised this language for 
consistency. This change is non-substantive, as ``web content'' 
encompasses ``websites.''
---------------------------------------------------------------------------

    \190\ 88 FR 52020.
    \191\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1: 
Recommendation, Conforming Alternate Version (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#dfn-conforming-alternate-version [https://perma.cc/GWT6-AMAN].
---------------------------------------------------------------------------

    In the NPRM, the Department requested comments on its approach 
to conforming alternate versions. In response, the Department 
received comments from a variety of commenters. Several commenters 
supported the Department's proposed approach of permitting the use 
of conforming alternative versions only when there are technical or 
legal limitations. Commenters believed these limitations would 
prevent public entities from using conforming alternate versions 
frequently and for reasons that do not seem appropriate, such as 
creating a conforming alternate version for a web page that is less 
accessible because of the public entity's aesthetic preferences.
    Some commenters suggested that the Department should permit 
conforming alternate versions under a broader range of 
circumstances. For example, some commenters indicated that a 
conforming alternate version could provide an equal or superior 
version of web content for people with disabilities. Other 
commenters noted that some private companies can provide manual 
alternate versions that look the same as the original web page but 
that have invisible coding and are accessible. One commenter stated 
that the transition from a

[[Page 31383]]

public entity's original website to an accessible version can be 
made seamless. Another commenter noted that WCAG 2.1 permits 
entities to adopt conforming alternate versions under broader 
circumstances and argued that the Department should adopt this 
approach rather than permitting conforming alternate versions only 
where there are technical or legal limitations. One commenter argued 
that it could be challenging for public entities that already offer 
conforming alternate versions more broadly to adjust their approach 
to comply with subpart H of this part. Some commenters gave examples 
of scenarios in which they found it helpful or necessary to provide 
conforming alternate versions.
    A few commenters expressed serious concerns about the use of 
conforming alternate versions. These commenters stated that 
conforming alternate versions often result in two separate and 
unequal websites. Commenters indicated that some entities' 
conforming alternate versions neither conform to WCAG standards nor 
contain the same functionality and content and therefore provide 
fragmented, separate experiences that are less useful for people 
with disabilities. Other commenters shared that these alternate 
versions are designed in a way that assumes users are people who are 
blind and thus do not want visual presentation, when other people 
with disabilities rely on visual presentations to access the web 
content. Further, one group shared that many people with 
disabilities may be skeptical of conforming alternative versions 
because historically they have not been updated, have been unequal 
in quality, or have separated users by disability. Another commenter 
argued that unlimited use of conforming alternate versions could 
lead to errors and conflicting information because there are two 
versions of the same content. One commenter suggested prohibiting 
conforming alternate versions when interaction is a part of the 
online user experience. Another commenter suggested permitting 
conforming alternate versions only when a legal limitation makes it 
impossible to make web content directly accessible, but not when a 
technical limitation makes it impossible to do so.
    Having reviewed public comments and considered this issue 
carefully, the Department believes subpart H of this part strikes 
the right balance to permit conforming alternate versions, but only 
where it is not possible to make web content directly accessible due 
to technical or legal limitations. The Department believes that this 
approach ensures that generally, people with disabilities will have 
direct access to the same web content that is accessed by people 
without disabilities, but it also preserves flexibility for public 
entities in situations where, due to a technical or legal 
limitation, it is impossible to make web content directly 
accessible. The Department also believes that this approach will 
help avoid the concerns noted in the preceding paragraphs with 
respect to segregation of people with disabilities by defining only 
specific scenarios when the use of conforming alternate versions is 
appropriate.
    Some commenters emphasized the importance of ensuring that under 
the limited circumstances in which conforming alternate versions are 
permissible, those versions provide a truly equal experience. 
Commenters also expressed concern that it might be hard for people 
with disabilities to find links to conforming alternate versions. 
The Department notes that under WCAG 2.1, a conforming alternate 
version is defined, in part, as a version that ``conforms at the 
designated level''; ``provides all of the same information and 
functionality in the same human language''; and ``is as up to date 
as the non-conforming content.'' \192\ Accordingly, even where it is 
permissible for a public entity to offer a conforming alternate 
version under subpart H of this part, the public entity must still 
ensure that the conforming alternate version provides equal 
information and functionality and is up to date. WCAG 2.1 also 
requires that ``the conforming version can be reached from the non-
conforming page via an accessibility-supported mechanism,'' or ``the 
non-conforming version can only be reached from the conforming 
version,'' or ``the non-conforming version can only be reached from 
a conforming page that also provides a mechanism to reach the 
conforming version.'' \193\ The Department believes these 
requirements will help to ensure that where a conforming alternate 
version is permissible, people with disabilities will be able to 
locate that page.
---------------------------------------------------------------------------

    \192\ See id.
    \193\ Id.
---------------------------------------------------------------------------

    Some commenters recommended that the Department provide 
additional guidance and examples of when conforming alternate 
versions would be permissible, or asked the Department to clarify 
whether conforming alternate versions would be permissible under 
particular circumstances. The determination of when conforming 
alternate versions are needed or permitted varies depending on the 
facts. For example, a conforming alternate version would not be 
permissible just because a town's web developer lacked the knowledge 
or training needed to make content accessible; that would not be a 
technical limitation within the meaning of Sec.  35.202. By 
contrast, the town could use a conforming alternate version if its 
web content 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. 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.
    One commenter stated that school districts and public 
postsecondary institutions currently provide accessible alternative 
content to students with disabilities that is equivalent to the 
content provided to students without disabilities and that is 
responsive to the individual student's needs. The commenter argued 
that public educational institutions should continue to be able to 
provide these alternative resources to students with disabilities. 
The Department reiterates that although public educational 
institutions, like all other public entities, will only be able to 
provide conforming alternate versions in lieu of directly accessible 
versions of web content under the circumstances specified in Sec.  
35.202, nothing prevents a public educational institution from 
providing a conforming alternate version in addition to the 
accessible main version of its web content.
    Other commenters requested that the Department impose deadlines 
or time restrictions on how long a public entity can use a 
conforming alternate version. However, the Department believes that 
doing so would conflict with the rationale for permitting conforming 
alternate versions. Where the technical limitations and legal 
limitations are truly outside the public entity's control, the 
Department believes it would be unreasonable to require the public 
entity to surmount those limitations after a certain period of time, 
even if they are still in place. However, once a technical or legal 
limitation no longer exists, a public entity must ensure their web 
content is directly accessible in accordance with subpart H of this 
part.
    A few commenters also sought clarification on, or broader 
language to account for, the interaction between the allowance of 
conforming alternate versions under Sec.  35.202 and the general 
limitations provided in Sec.  35.204. These two provisions are 
applicable in separate circumstances. If there is a technical or 
legal limitation that prevents an entity from complying with Sec.  
35.200 for certain content, Sec.  35.202 is applicable. The entity 
can create a conforming alternate version for that content and, 
under Sec.  35.202, that entity will be in compliance with subpart H 
of this part. Separately, if a fundamental alteration or undue 
financial and administrative burdens prevent a public entity from 
complying with Sec.  35.200 for certain content, Sec.  35.204 is 
applicable. As set forth in Sec.  35.204, the public entity must 
still 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. A 
public entity's legitimate claim of fundamental alteration or undue 
burdens does not constitute a legal limitation under Sec.  35.202 
for which a conforming alternate version automatically suffices to 
comply with subpart H. Rather, the public entity must ensure access 
``to the maximum extent possible'' under the specific facts and 
circumstances of the situation. Under the specific facts a public 
entity is facing, the public entity's best option to ensure maximum 
access may be an alternate version of its content, but the public 
entity also may be required to do something more or something 
different. Because the language of Sec.  35.204 already allows for 
alternate versions if appropriate for the facts of public entity's 
fundamental alteration or undue burdens, the Department does not see 
a need to expand the language of Sec.  35.202 to address commenters' 
concerns.

[[Page 31384]]

    The Department also wishes to clarify the relationship between 
Sec. Sec.  35.202 and 35.205, which are analyzed independently of 
each other. Section 35.202 provides that a public entity may use 
conforming alternate versions of web content, as defined by WCAG 
2.1, to comply with Sec.  35.200 only where it is not possible to 
make web content directly accessible due to technical or legal 
limitations. Accordingly, if a public entity does not make its web 
content directly accessible and instead provides a conforming 
alternate version when not required by technical or legal 
limitations, the public entity may not use that conforming alternate 
version to comply with its obligations under subpart H of this part, 
either by relying on Sec.  35.202 or by invoking Sec.  35.205.

Section 35.203 Equivalent Facilitation

    Section 35.203 provides that nothing prevents a public entity 
from using designs, methods, or techniques as alternatives to those 
prescribed in the 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.\194\ The reason for allowing 
for equivalent facilitation in subpart H of this part is to 
encourage flexibility and innovation by public entities while still 
ensuring equal or greater access to web content and mobile apps. 
Especially in light of the rapid pace at which technology changes, 
this provision is intended to clarify that public entities can use 
methods or techniques that provide equal or greater accessibility 
than subpart H would require. For example, if a public entity wanted 
to conform its web content or mobile app to a future web content and 
mobile app accessibility standard that expands accessibility 
requirements beyond WCAG 2.1 Level AA, this provision makes clear 
that the public entity would be in compliance with subpart H. Public 
entities could also choose to comply with subpart H by conforming 
their web content to WCAG 2.2 Level AA \195\ because WCAG 2.2 Level 
AA provides substantially equivalent or greater accessibility and 
usability to WCAG 2.1 Level AA; in particular, WCAG 2.2 Level AA 
includes additional success criteria not found in WCAG 2.1 Level AA 
and every success criterion in WCAG 2.1 Level AA, with the exception 
of one success criterion that is obsolete.\196\ Similarly, a public 
entity could comply with subpart H by conforming its web content and 
mobile apps to WCAG 2.1 Level AAA,\197\ which is the same version of 
WCAG and includes all the WCAG 2.1 Level AA requirements, but 
includes additional requirements not found in WCAG 2.1 Level AA for 
even greater accessibility. For example, WCAG 2.1 Level AAA includes 
Success Criterion 2.4.10 \198\ for section headings used to organize 
content and Success Criterion 3.1.4 \199\ that includes a mechanism 
for identifying the expanded form or meaning of abbreviations, among 
others. The Department believes that this provision offers needed 
flexibility for entities to provide usability and accessibility that 
meet or exceed what subpart H of this part would require as 
technology continues to develop. The responsibility for 
demonstrating equivalent facilitation rests with the public entity. 
Subpart H adopts the approach as proposed in the NPRM,\200\ but the 
Department edited the regulatory text to fix a grammatical error by 
adding a comma in the original sentence in the provision.
---------------------------------------------------------------------------

    \194\ See 28 CFR part 36, appendix D, at 1000 (2022) (1991 ADA 
Standards); 36 CFR part 1191, appendix B, at 329 (2022) (2010 ADA 
Standards).
    \195\ W3C, WCAG 2 Overview, https://www.w3.org/WAI/standards-guidelines/wcag/ [https://perma.cc/RQS2-P7JC] (Oct. 5, 2023).
    \196\ W3C, What's New in WCAG 2.2 Draft, https://www.w3.org/WAI/standards-guidelines/wcag/new-in-22/ [https://perma.cc/GDM3-A6SE] 
(Oct. 5, 2023).
    \197\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Sec.  5.2 Conformance Requirements (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs [https://perma.cc/XV2E-ESM8].
    \198\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Success Criterion 2.4.10 Section Headings (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs:~:text=Success%20Criterion%202.4.10,Criterion%204.1.2 [https://perma.cc/9BNS-8LWK].
    \199\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Success Criterion 3.1.4 Abbreviations (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs:~:text=Success%20Criterion%203.1.4,abbreviations%20is%20availabl
e [https://perma.cc/ZK6C-9RHD].
    \200\ 88 FR 52020.
---------------------------------------------------------------------------

    The Department received a comment arguing that providing phone 
support in lieu of a WCAG 2.1-compliant website should constitute 
equivalent facilitation. As discussed in the section entitled 
``History of the Department's Title II Web-Related Interpretation 
and Guidance,'' the Department no longer believes telephone lines 
can realistically provide equal access to people with disabilities. 
Websites--and often mobile apps--allow members of the public to get 
information or request a service within just a few minutes, and 
often to do so independently. Getting the same information or 
requesting the same service using a staffed telephone line takes 
more steps and may result in wait times or difficulty getting the 
information.
    For example, State and local government entities' web content 
and mobile apps 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 web content 
or mobile apps to promptly act on that information by, for example, 
registering for programs or activities, submitting comments on 
pending government ordinances, or filling out an application for a 
government benefit. A member of the public could not realistically 
accomplish these tasks efficiently over the phone.
    Additionally, a person with a disability who cannot use an 
inaccessible online tax form might have to call to request 
assistance with filling out either online or mailed forms, which 
could involve significant delay, added costs, and could require 
providing private information such as banking details or Social 
Security numbers over the phone without the benefit of certain 
security features available for online transactions. A staffed 
telephone line also may not be accessible to someone who is 
deafblind, or who may have combinations of other disabilities, such 
as a coordination issue impacting typing, and an audio processing 
disability impacting comprehension over the phone. However, such 
individuals may be able to use web content and mobile apps that are 
accessible.
    Finally, calling a staffed telephone line lacks the privacy of 
looking up information on a public entity's web content or mobile 
app. A caller needing public safety resources, for example, might be 
unable to access a private location to ask for help on the phone, 
whereas accessible web content or mobile apps would allow users to 
privately locate resources. For these reasons, the Department does 
not now believe that a staffed telephone line--even if it is offered 
24/7--provides equal opportunity in the way that accessible web 
content or mobile apps would.

Section 35.204 Duties

    Section 35.204 sets forth the general limitations on the 
obligations under subpart H of this part. Section 35.204 provides 
that in meeting the accessibility requirements set out in subpart H, 
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 
limitations on a public entity's duty to comply with the regulatory 
provisions mirror the fundamental alteration and undue burdens 
compliance limitations currently provided in the title II regulation 
in Sec. Sec.  35.150(a)(3) (existing facilities) and 35.164 
(effective communication), and the fundamental alteration compliance 
limitation currently provided in the title II regulation in Sec.  
35.130(b)(7) (reasonable modifications in policies, practices, or 
procedures). These limitations are thus familiar to public entities.
    The word ``full'' was removed in Sec.  35.204 so that the text 
reads ``compliance'' rather than ``full compliance.'' The Department 
made this change because Sec.  35.200(b)(1) and (2) clarifies that 
compliance with subpart H of this part includes complying with the 
success criteria and conformance requirements under Level A and 
Level AA specified in WCAG 2.1. This minor revision does not affect 
the meaning of Sec.  35.204, but rather removes an extraneous word 
to avoid redundancy and confusion.
    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 the requirements of Sec.  35.200 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

[[Page 31385]]

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.\201\ 
The Department has 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.\202\ 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.\203\
---------------------------------------------------------------------------

    \201\ Section 35.150(a)(3) and 35.164.
    \202\ 28 CFR part 35, appendix B, at 708 (2022).
    \203\ Id.
---------------------------------------------------------------------------

    The Department believes, in general, it would not constitute a 
fundamental alteration of a public entity's services, programs, or 
activities to modify web content or mobile apps to make them 
accessible within the meaning of subpart H of this part. However, 
this is a fact-specific inquiry, and the Department provides some 
examples later in this section of when a public entity may be able 
to claim a fundamental alteration. Moreover, like the fundamental 
alteration or undue burdens limitations in the title II regulation 
referenced in the preceding paragraphs, Sec.  35.204 does not 
relieve a public entity of all obligations to individuals with 
disabilities. Although a public entity under this part 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 subpart H of this part 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 complying with all of the success criteria 
under WCAG 2.1 Level AA would result in a fundamental alteration or 
undue financial and administrative burdens. However, the 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 conformance to 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 complying with all of the requirements under 
WCAG 2.1 Level AA would result in undue financial and administrative 
burdens will be able to attain at least partial compliance in many 
circumstances. The Department believes that there are many steps a 
public entity can take to conform to WCAG 2.1 Level AA that should 
not result in undue financial and administrative burdens, depending 
on the particular circumstances.
    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 the web 
content or content in mobile apps that it makes available to the 
public. However, it is important to note that compliance with 
subpart H of this part will not relieve title II entities of their 
distinct employment-related obligations under title I of the ADA. 
The Department realizes that the regulations in subpart H are 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. This approach is 
consistent with the approach the Department has taken in the context 
of physical accessibility under title II. In that context, a public 
entity is not required to exceed the applicable design requirements 
of the ADA Standards even if certain wheelchairs or other power-
driven mobility devices require a greater degree of accessibility 
than the ADA Standards provide.\204\ The entity may still be 
required, however, to make other modifications to how it provides a 
program, service, or activity, where necessary to provide access for 
a specific individual. For example, where an individual with a 
disability cannot physically access a program provided in a building 
that complies with the ADA Standards, the public entity does not 
need to make physical alterations to the building but may need to 
take other steps to ensure that the individual has an equal 
opportunity to participate in and benefit from that program.
---------------------------------------------------------------------------

    \204\ See 28 CFR part 35, appendix A, at 626 (2022).
---------------------------------------------------------------------------

    Similarly, just because an entity is in compliance with the web 
content or mobile app accessibility standard in subpart H of this 
part does not mean it has met all of its obligations under the ADA 
or other applicable laws--it means only that it is not required to 
make further changes to the web content or content in mobile apps 
that it makes available. 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 is still obligated under Sec.  35.200(a) 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.\205\ The entity also 
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, programs, or 
activities.\206\
---------------------------------------------------------------------------

    \205\ See, e.g., Sec. Sec.  35.130(b)(1)(ii) and (b)(7) and 
35.160.
    \206\ See id.
---------------------------------------------------------------------------

    The public entity must determine on a case-by-case basis how 
best to meet the needs of those individuals who cannot access a 
service, program, or activity that the public entity provides 
through web content or mobile apps that comply with all of the 
requirements under WCAG 2.1 Level AA. A public entity should refer 
to Sec.  35.130(b)(1)(ii) to determine its obligations to provide 
individuals with disabilities an equal opportunity to participate in 
and enjoy the benefits of the public entity's services, programs, or 
activities. A public entity should refer to Sec.  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 services, programs, or 
activities. A public entity should refer to Sec.  35.130(b)(7) 
(reasonable modifications) to determine its 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. For example, while not required in subpart H of this part, 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 content or mobile apps 
or to request assistance.\207\ Providing this information will help 
public entities ensure that they are satisfying their obligations to 
provide equal access, effective communication, and reasonable 
modifications.
---------------------------------------------------------------------------

    \207\ See W3C, Developing an Accessibility Statement, https://www.w3.org/WAI/planning/statements/ [https://perma.cc/85WU-JTJ6] 
(Mar. 11, 2021).
---------------------------------------------------------------------------

    The Department also clarifies that a public entity's requirement 
to comply with existing ADA obligations remains true for content 
that fits under one of the exceptions under Sec.  35.201. For 
example, in the appropriate circumstances, an entity may be 
obligated to add captions to a video that falls within the archived 
content exception and provide the captioned video file to the 
individual with a disability who needs access to the video, or edit 
an individualized password-protected PDF to be usable with a screen 
reader and provide it via a secure method to the individual with a 
disability. Of course, an entity may also choose to further modify 
the web content or content in mobile apps it makes available to make 
that content more accessible or usable than subpart H of this part 
requires. In the context of the preceding examples, for instance, 
the Department believes it will often be most economical and logical 
for an entity to post the captioned video, once modified, as part of 
web content made available to the public, or to modify the 
individualized PDF template so that it is used for all members of 
the public going forward.
    The Department received comments indicating that the fundamental 
alteration or undue burdens limitations as discussed in

[[Page 31386]]

the ``Duties'' section of the NPRM \208\ are appropriate and align 
with the framework of the ADA. The Department also received comments 
expressing concern that there are no objective standards to help 
public entities understand when the fundamental alteration and undue 
burdens limitations will apply. Accordingly, some commenters asked 
the Department to make clearer when public entities can and cannot 
raise these limitations. Some of these commenters said that the lack 
of clarity about these limitations could result in higher litigation 
costs or frivolous lawsuits. The Department acknowledges these 
concerns and notes that fundamental alteration and undue burdens are 
longstanding limitations under the ADA,\209\ and therefore the 
public should already be familiar with these limitations in other 
contexts. The Department has provided guidance that addresses the 
fundamental alteration and undue burdens limitations and will 
consider providing additional guidance in the future.\210\
---------------------------------------------------------------------------

    \208\ 88 FR 51978-51980.
    \209\ See Sec. Sec.  35.130(b)(7)(i), 35.150(a)(3), and 35.164. 
These regulatory provisions were also in the Department's 1991 
regulations at 28 CFR 35.130(b)(7), 35.150(a)(3), and 35.164, 
respectively.
    \210\ See, e.g., U.S. Dep't of Just., ADA Update: A Primer for 
State and Local Governments, https://www.ada.gov/resources/title-ii-primer/ [https://perma.cc/ZV66-EFWU] (Feb. 28, 2020).
---------------------------------------------------------------------------

    The Department received some comments suggesting that the 
Department should state whether certain examples amount to a 
fundamental alteration or undue burdens or amend the regulation to 
address the examples. For example, one commenter indicated that some 
digital content cannot be made accessible and therefore technical 
infeasibility should be considered an undue burden. Another 
commenter asserted that it may be an undue burden to require large 
documents that are 300 pages or more to be accessible under the 
final regulations; therefore, the final regulations should include a 
rebuttable presumption that public entities do not have to make 
these larger documents accessible. In addition, one commenter said 
they believe that testing the accessibility of web content and 
mobile apps imposes an undue burden. However, another commenter 
opined that improving web code is unlikely to pose a fundamental 
alteration in most cases.
    Whether the undue burdens limitation applies is a fact-specific 
assessment that involves considering a variety of factors. For 
example, some small towns have minimal operating budgets measured in 
the thousands or tens of thousands of dollars. If such a town had an 
archive section of its website with a large volume of material 
gathered by the town's historical society (such as old photographs 
and handwritten journal entries from town elders), the town would 
have an obligation under the existing title II regulation to ensure 
that its services, programs, and activities offered using web 
content and mobile apps are accessible to individuals with 
disabilities. However, it might be an undue burden for the town to 
make all those materials fully accessible in a short period of time 
in response to a request by an individual with a disability.\211\ 
Whether the undue burdens limitation applies, however, would depend, 
among other things, on how large the town's operating budget is and 
how much it would cost to make the materials in question accessible. 
Whether the limitation applies will also vary over time. Increases 
in town budget, or changes in technology that reduce the cost of 
making the historical materials accessible, may make the limitation 
inapplicable. Lastly, even where it would impose an undue burden on 
the town to make its historical materials accessible within a 
certain time frame, the town would still need to take any other 
action that would not result in such a burden but would nevertheless 
ensure that individuals with disabilities receive the benefits or 
services provided by the town to the maximum extent possible.
---------------------------------------------------------------------------

    \211\ See Sec. Sec.  35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------

    Application of the fundamental alteration limitation is 
similarly fact specific. For example, a county library might hold an 
art contest in which elementary school students submit alternative 
covers for their favorite books and library goers view and vote on 
the submissions on the library website. It would likely be a 
fundamental alteration to require the library to modify each piece 
of artwork so that any text drawn on the alternative covers, such as 
the title of the book or the author's name, satisfies the color 
contrast requirements in the technical standard. Even so, the 
library would still be required to take any other action that would 
not result in such an alteration but would nevertheless ensure that 
individuals with disabilities could participate in the contest to 
the maximum extent possible.
    Because each assessment of whether the fundamental alteration or 
undue burdens limitations applies will vary depending on the entity, 
the time of the assessment, and various other facts and 
circumstances, the Department declines to adopt any rebuttable 
presumptions about when the fundamental alteration or undue burdens 
limitations would apply.
    One commenter proposed that the final regulations should specify 
factors that should be considered with respect to the undue burdens 
limitation, such as the number of website requirements that public 
entities must comply with and the budget, staff, and other resources 
needed to achieve compliance with these requirements. The Department 
declines to make changes to the regulatory text because the 
Department does not believe listing specific factors would be 
appropriate, particularly given that these limitations apply in 
other contexts in title II. Also, as noted earlier, the Department 
believes that generally, it would not constitute a fundamental 
alteration of a public entity's services, programs, or activities to 
modify web content or mobile apps to make them accessible in 
compliance with subpart H of this part.
    The Department received a comment suggesting that the regulatory 
text should require a public entity claiming the undue burdens 
limitation to identify the inaccessible content at issue, set a 
reliable point of contact for people with disabilities seeking to 
access the inaccessible content, and develop a plan and timeline for 
remediating the inaccessible content. The Department declines to 
take this suggested approach because it would be a departure from 
how the limitation generally applies in other contexts covered by 
title II of the ADA.\212\ In these other contexts, if an action 
would result in a fundamental alteration or undue burdens, a public 
entity must still 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.\213\ 
The Department believes it is important to apply these longstanding 
limitations in the same way to web content and mobile apps to ensure 
clarity for public entities and consistent enforcement of the ADA. 
In addition, implementing the commenter's suggested approach would 
create additional costs for public entities. The Department 
nevertheless encourages public entities to engage in practices that 
would improve accessibility and ensure transparency when public 
entities seek to invoke the fundamental alteration or undue burdens 
limitations. For example, a public entity can provide an 
accessibility statement that informs the public how to bring web 
content or mobile app accessibility problems to the public entity's 
attention, and it can also develop and implement a procedure for 
reviewing and addressing any such issues raised.
---------------------------------------------------------------------------

    \212\ See Sec. Sec.  35.150(a)(3) and 35.164.
    \213\ See id.
---------------------------------------------------------------------------

    Some commenters raised concerns about the requirement in Sec.  
35.204 that the decision that compliance with subpart H of this part 
would result in a fundamental alteration or in undue financial or 
administrative burdens must be made by the head of a public entity 
or their designee. These commenters wanted more clarity about who is 
the head of a public entity. They also expressed concern that this 
requirement may be onerous for public entities. The Department notes 
in response to these commenters that this approach is consistent 
with the existing title II framework in Sec. Sec.  35.150(a)(3) 
(service, program, or activity accessibility) and 35.164 (effective 
communication). With respect to the commenters' concern about who is 
the head of a public entity or their designee, the Department 
recognizes the difficulty of identifying the official responsible 
for this determination given the variety of organizational forms of 
public entities and their components. 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.'' \214\ The Department 
reiterates that this is an existing concept in title II of the ADA, 
so public entities should be familiar with this requirement. The 
appropriate relevant official may vary depending on the public 
entity.
---------------------------------------------------------------------------

    \214\ 28 CFR part 35, appendix B, at 708 (2022).
---------------------------------------------------------------------------

Section 35.205 Effect of Noncompliance That Has a Minimal Impact on 
Access

    Section 35.205 sets forth when a public entity will be deemed to 
have complied with

[[Page 31387]]

Sec.  35.200 despite limited nonconformance to the technical 
standard. This provision adopts one of the possible approaches to 
compliance discussed in the NPRM.\215\ As discussed in this section, 
public comments indicated that the final rule needed to account for 
the increased risk of instances of nonconformance to the technical 
standard, due to the unique and particular challenges to achieving 
perfect, uninterrupted conformance in the digital space. The 
Department believes that Sec.  35.205 meets this need, ensuring the 
full and equal access to which individuals with disabilities are 
entitled while allowing some flexibility for public entities if 
nonconformance to WCAG 2.1 Level AA is so minimal as to not affect 
use of the public entity's web content or mobile app.
---------------------------------------------------------------------------

    \215\ 88 FR 51983.
---------------------------------------------------------------------------

Discussion of Regulatory Text

    Section 35.205 describes a particular, limited circumstance in 
which a public entity will be deemed to have met the requirements of 
Sec.  35.200 even though the public entity's web content or mobile 
app does not perfectly conform to the technical standard set forth 
in Sec.  35.200(b). Section 35.205 will apply if the entity can 
demonstrate that, although it was technically out of conformance to 
WCAG 2.1 Level AA (i.e., fails to exactly satisfy a success 
criterion or conformance requirement), the nonconformance has a 
minimal impact on access for individuals with disabilities, as 
defined in the regulatory text. If a public entity can make this 
showing, it will be deemed to have met its obligations under Sec.  
35.200 despite its nonconformance to WCAG 2.1 Level AA.
    Section 35.205 does not alter a public entity's general 
obligations under subpart H of this part nor is it intended as a 
blanket justification for a public entity to avoid conforming with 
WCAG 2.1 Level AA from the outset. Rather, Sec.  35.205 is intended 
to apply in rare circumstances and will require a detailed analysis 
of the specific facts surrounding the impact of each alleged 
instance of nonconformance. The Department does not expect or intend 
that Sec.  35.205 will excuse most nonconformance to the technical 
standard. Under Sec.  35.200(b), a public entity must typically 
ensure that the web content and mobile apps it provides or makes 
available, directly or through contractual, licensing, or other 
arrangements, comply with Level A and Level AA success criteria and 
conformance requirements specified in WCAG 2.1. This remains 
generally true. However, Sec.  35.205 allows for some minor 
deviations from WCAG 2.1 Level AA if specific conditions are met. 
This will provide a public entity that discovers that it is out of 
compliance with the requirements of Sec.  35.200(b) with another 
means to avoid the potential liability that could result. Public 
entities that maintain conformance to WCAG 2.1 Level AA will not 
have to rely on Sec.  35.205 to be deemed compliant with Sec.  
35.200, and full conformance to WCAG 2.1 Level AA is the only 
definitive way to guarantee that outcome. However, if a public 
entity falls out of conformance in a minimal way or such 
nonconformance is alleged, a public entity may be able to use Sec.  
35.205 to demonstrate that it has satisfied its legal obligations. 
Section 35.205 also does not alter existing ADA enforcement 
mechanisms. Individuals can file complaints, and agencies can 
conduct investigations and compliance reviews, related to subpart H 
of this part the same way they would for any other requirement under 
title II.\216\
---------------------------------------------------------------------------

    \216\ See Sec. Sec.  35.170 through 35.190.
---------------------------------------------------------------------------

    As the text of the provision indicates, the burden of 
demonstrating applicability of Sec.  35.205 is on the public entity. 
The provision will only apply in the limited circumstance in which 
the public entity can demonstrate that all of the criteria described 
in Sec.  35.205 are satisfied. This section requires the public 
entity to show that its nonconformance to WCAG 2.1 Level AA has such 
a minimal impact on access that it would not affect the ability of 
individuals with disabilities to use the public entity's web content 
or mobile app as defined in the remainder of the section. If the 
nonconformance has affected an individual in the ways outlined in 
Sec.  35.205 (further described in the subsequent paragraphs), the 
public entity will not be able to rely on this provision. Further, 
as ``demonstrate'' indicates, the public entity must provide 
evidence that all of the criteria described in Sec.  35.205 are 
satisfied in order to substantiate its reliance on this provision. 
While Sec.  35.205 does not require a particular type of evidence, a 
public entity needs to show that, as the text states, its 
nonconformance ``would not affect'' the experience of individuals 
with disabilities as outlined in subsequent paragraphs. Therefore, 
it would not be sufficient for a public entity to show only that it 
has not received any complaints regarding the nonconformance; nor 
would it likely be enough if the public entity only pointed to a few 
particular individuals with disabilities who were unaffected by the 
nonconformance. The public entity must show that the nonconformance 
is of a nature that would not affect people whose disabilities are 
pertinent to the nonconformance at issue, just as the analysis under 
other parts of the title II regulation depends on the barrier at 
issue and the access needs of individuals with disabilities 
pertinent to that barrier.\217\ For example, people with hearing or 
auditory processing disabilities, among others, have disabilities 
pertinent to captioning requirements.
---------------------------------------------------------------------------

    \217\ Cf., e.g., Sec. Sec.  35.130(b)(1)(iv) and (b)(8) and 
35.160.
---------------------------------------------------------------------------

    With respect to the particular criteria that a public entity 
must satisfy, Sec.  35.205 describes both what people with 
disabilities must be able to use the public entity's web content or 
mobile apps to do and the manner in which people with disabilities 
must be able to do it. As to manner of use, Sec.  35.205 provides 
that nonconformance to WCAG 2.1 Level AA must not affect the ability 
of individuals with disabilities to use the public entity's web 
content or mobile app in a manner that provides substantially 
equivalent timeliness, privacy, independence, and ease of use 
compared to individuals without disabilities. Timeliness, privacy, 
and independence are underscored throughout the ADA framework as key 
components of ensuring equal opportunity for individuals with 
disabilities to participate in or benefit from a public entity's 
services, programs, and activities, as explained further later in 
the discussion of this provision, and ``ease of use'' is intended to 
broadly encompass other aspects of a user's experience with web 
content or mobile apps. To successfully rely on Sec.  35.205, it 
would not be sufficient for a public entity to demonstrate merely 
that its nonconformance would not completely block people with 
disabilities from using web content or a mobile app as described in 
Sec.  35.205(a) through (d). That is, the term ``would not affect'' 
should not be read in isolation from the rest of Sec.  35.205 to 
suggest that a public entity only needs to show that a particular 
objective can be achieved. Rather, a public entity must also 
demonstrate that, even though the web content or mobile app does not 
conform to the technical standard, the user experience for 
individuals with disabilities is substantially equivalent to the 
experience of individuals without disabilities.
    For example, if a State's online renewal form does not conform 
to WCAG 2.1 Level AA, a person with a manual dexterity disability 
may need to spend significantly more time to renew their 
professional license online than someone without a disability. This 
person might also need to seek assistance from someone who does not 
have a disability, provide personal information to someone else, or 
endure a much more cumbersome and frustrating process than a user 
without a disability. Even if this person with a disability was 
ultimately able to renew their license online, Sec.  35.205 would 
not apply because, under these circumstances, their ability to use 
the web content in a manner that provides substantially equivalent 
timeliness, privacy, independence, and ease of use would be 
affected. Analysis under this provision is likely to be a fact-
intensive analysis. Of course, a public entity is not responsible 
for every factor that might make a task more time-consuming or 
difficult for a person with a disability. However, a public entity 
is responsible for the impact of its nonconformance to the technical 
standard set forth in subpart H of this part. The public entity must 
show that its nonconformance would not affect the ability of 
individuals with pertinent disabilities to use the web content or 
mobile app in a manner that provides substantially equivalent 
timeliness, privacy, independence, and ease of use.
    Paragraphs (a) through (d) of Sec.  35.205 describe what people 
with disabilities must be able to use the public entity's web 
content or mobile apps to do in a manner that is substantially 
equivalent as to timeliness, privacy, independence, and ease of use. 
First, under Sec.  35.205(a), individuals with disabilities must be 
able to access the same information as individuals without 
disabilities. This means that people with disabilities can access 
all the same information using the web content or mobile app that 
users without disabilities are able to access. For example, Sec.  
35.205(a) would not be

[[Page 31388]]

satisfied if certain web content could not be accessed using a 
keyboard because the content was coded in a way that caused the 
keyboard to skip over some content. In this example, an individual 
who relies on a screen reader would not be able to access the same 
information as an individual without a disability because all of the 
information could not be selected with their keyboard so that it 
would be read aloud by their screen reader. However, Sec.  35.205(a) 
might be satisfied if the color contrast ratio for some sections of 
text is 4.45:1 instead of 4.5:1 as required by WCAG 2.1 Success 
Criterion 1.4.3.\218\ Similarly, this provision might apply if the 
spacing between words is only 0.15 times the font size instead of 
0.16 times as required by WCAG 2.1 Success Criterion 1.4.12.\219\ 
Such slight deviations from the specified requirements are unlikely 
to affect the ability of, for example, most people with vision 
disabilities to access information that they would be able to access 
if the content fully conformed with the technical standard. However, 
the entity must always demonstrate that this element is met with 
respect to the specific facts of the nonconformance at issue.
---------------------------------------------------------------------------

    \218\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Success Criterion 1.4.3 Contrast (Minimum) (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#contrast-minimum [https://perma.cc/4XS3-AX7W].
    \219\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Success Criterion 1.4.12 Text Spacing (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#text-spacing [https://perma.cc/B4A5-843F].
---------------------------------------------------------------------------

    Second, Sec.  35.205(b) states that individuals with 
disabilities must be able to engage in the same interactions as 
individuals without disabilities. This means that people with 
disabilities can interact with the web content or mobile app in all 
of the same ways that people without disabilities can. For example, 
Sec.  35.205(b) would not be satisfied if people with disabilities 
could not interact with all of the different components of the web 
content or mobile app, such as chat functionality, messaging, 
calculators, calendars, and search functions. However, Sec.  
35.205(b) might be satisfied if the time limit for an interaction, 
such as a chat response, expires at exactly 20 hours, even though 
Success Criterion 2.2.1,\220\ which generally requires certain 
safeguards to prevent time limits from expiring, has an exception 
that only applies if the time limit is longer than 20 hours. People 
with certain types of disabilities, such as cognitive disabilities, 
may need more time than people without disabilities to engage in 
interactions. A slight deviation in timing, especially when the time 
limit is long and the intended interaction is brief, is unlikely to 
affect the ability of people with these types of disabilities to 
engage in interactions. Still, the public entity must always 
demonstrate that this element is met with respect to the specific 
facts of the nonconformance at issue.
---------------------------------------------------------------------------

    \220\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Success Criterion 2.2.1 Timing Adjustable (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#timing-adjustable [https://perma.cc/V3XZ-KJDG].
---------------------------------------------------------------------------

    Third, pursuant to Sec.  35.205(c), individuals with 
disabilities must be able to conduct the same transactions as 
individuals without disabilities. This means that people with 
disabilities can complete all of the same transactions on the web 
content or mobile app that people without disabilities can. For 
example, Sec.  35.205(c) would not be satisfied if people with 
disabilities could not submit a form or process their payment. 
However, Sec.  35.205(c) would likely be satisfied if web content 
does not conform to Success Criterion 4.1.1 about parsing. This 
Success Criterion requires that information is coded properly so 
that technology like browsers and screen readers can accurately 
interpret the content and, for instance, deliver that content to a 
user correctly so that they can complete a transaction, or avoid 
crashing in the middle of the transaction.\221\ However, according 
to W3C, this Success Criterion is no longer needed to ensure 
accessibility because of improvements in browsers and assistive 
technology.\222\ Thus, although conformance to this Success 
Criterion is required by WCAG 2.1 Level AA, a failure to conform to 
this Success Criterion is unlikely to affect the ability of people 
with disabilities to conduct transactions. However, the entity must 
always demonstrate that this element is met with respect to the 
specific facts of the nonconformance at issue.
---------------------------------------------------------------------------

    \221\ W3C, Understanding SC 4.1.1: Parsing (Level A), https://www.w3.org/WAI/WCAG21/Understanding/parsing.html [https://perma.cc/5Z8Q-GW5E] (June 20, 2023).
    \222\ W3C, WCAG 2 FAQ, How and why is success criteria 4.1.1 
Parsing obsolete?, https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/7Q9H-JVSZ] (Oct. 5, 2023).
---------------------------------------------------------------------------

    Fourth, Sec.  35.205(d) requires that individuals with 
disabilities must be able to otherwise participate in or benefit 
from the same services, programs, and activities as individuals 
without disabilities. Section 35.205(d) is intended to address 
anything else within the scope of title II (i.e., any service, 
program, or activity that cannot fairly be characterized as 
accessing information, engaging in an interaction, or conducting a 
transaction) for which someone who does not have a disability could 
use the public entity's web content or mobile app. Section 35.205(d) 
should be construed broadly to ensure that the ability of 
individuals with disabilities to use any part of the public entity's 
web content or mobile app that individuals without disabilities are 
able to use is not affected by nonconformance to the technical 
standard.

Explanation of Changes From Language Discussed in the NPRM

    The regulatory language codified in Sec.  35.205 is very similar 
to language discussed in the NPRM's preamble.\223\ However, the 
Department believes it is helpful to explain differences between 
that discussion in the NPRM and the final rule. The Department has 
only made three substantive changes to the NPRM's relevant language.
---------------------------------------------------------------------------

    \223\ 88 FR 51983.
---------------------------------------------------------------------------

    First, though the NPRM discussed excusing noncompliance that 
``does not prevent'' equal access, Sec.  35.205 excuses 
noncompliance that ``would not affect'' such access. The Department 
was concerned that the use of ``does not'' could have been 
incorrectly read to require a showing that a specific individual did 
not have substantially equivalent access to the web content or 
mobile app. In changing the language to ``would not,'' the 
Department clarifies that the threshold requirements for bringing a 
challenge to compliance under subpart H of this part are the same as 
under any other provision of the ADA. Except as otherwise required 
by existing law, a rebuttal of a public entity's invocation of this 
provision would not need to show that a specific individual did not 
have substantially equivalent access to the web content or mobile 
app. Rather, the issue would be whether the nonconformance is the 
type of barrier that would affect the ability of individuals with 
pertinent disabilities to access the web content or mobile app in a 
substantially equivalent manner. The same principles would apply to 
informal dispute resolution or agency investigations resolved 
outside of court, for example. Certainly, the revised standard would 
encompass a barrier that actually does affect a specific 
individual's access, so this revision does not narrow the provision.
    Second, the Department originally proposed considering whether 
nonconformance ``prevent[s] a person with a disability'' from using 
the web content or mobile app, but Sec.  35.205 instead considers 
whether nonconformance would ``affect the ability of individuals 
with disabilities'' to use the web content or mobile app. This 
revision is intended to clarify what a public entity seeking to 
invoke this provision needs to demonstrate. The Department explained 
in the NPRM that the purpose of this approach was to provide equal 
access to people with disabilities, and limit violations to those 
that affect access.\224\ But even when not entirely prevented from 
using web content or mobile app, an individual with disabilities can 
still be denied equal access by impediments falling short of that 
standard. The language now used in this provision more accurately 
reflects this reality and achieves the objective proposed in the 
NPRM. As explained earlier in the discussion of Sec.  35.205, under 
the language in this provision, it would not be sufficient for a 
public entity to show that nonconformance would not completely block 
people with disabilities from using the public entity's web content 
or a mobile app as described in Sec.  35.205(a) through (d). In 
other words, someone would not need to be entirely prevented from 
using the web content or mobile app before an entity could be 
considered out of compliance. Instead, the effect of the 
nonconformance must be considered. This does not mean that any 
effect on usability, however slight, is sufficient to prove a 
violation. Only nonconformance that would affect the ability of 
individuals with disabilities to do the activities in Sec.  
35.205(a) through (d) in a way that provides substantially 
equivalent timeliness, privacy, independence, and ease of use would 
prevent a public entity from relying on this provision.
---------------------------------------------------------------------------

    \224\ Id.
---------------------------------------------------------------------------

    Third, the language proposed in the NPRM considered whether a 
person with a disability would have substantially

[[Page 31389]]

equivalent ``ease of use.'' The Department believed that timeliness, 
privacy, and independence were all components that affected whether 
ease of use was substantially equivalent. Because several commenters 
proposed explicitly specifying these factors in addition to ``ease 
of use,'' the Department is persuaded that these factors warrant 
separate inclusion and emphasis as aspects of user experience that 
must be substantially equivalent. This specificity ensures clarity 
for public entities, individuals with disabilities, Federal 
agencies, and courts about how to analyze an entity's invocation of 
this provision.
    Therefore, the Department has added additional language to 
clarify that timeliness, privacy, and independence are all important 
concepts to consider when evaluating whether this provision applies. 
If a person with a disability would need to take significantly more 
time to successfully navigate web content or a mobile app that does 
not conform to the technical standard because of the content or 
app's nonconformance, that person is not being provided with a 
substantially equivalent experience to that of people without 
disabilities. Requiring a person with a disability to spend 
substantially more time to do something is placing an additional 
burden on them that is not imposed on others. Privacy and 
independence are also crucial components that can affect whether a 
person with a disability would be prevented from having a 
substantially equivalent experience. Adding this language to Sec.  
35.205 ensures consistency with the effective communication 
provision of the ADA.\225\ The Department has included timeliness, 
privacy, and independence in this provision for clarity and to avoid 
unintentionally narrowing what should be a fact-intensive analysis. 
However, ``ease of use'' may also encompass other aspects of a 
user's experience that are not expressly specified in the regulatory 
text, such as safety risks incurred by people with disabilities as a 
result of nonconformance.\226\ This language should be construed 
broadly to allow for consideration of other ways in which 
nonconformance would make the experience of users with disabilities 
more difficult or burdensome than the experience of users without 
disabilities in specific scenarios.
---------------------------------------------------------------------------

    \225\ Section 35.160(b)(2).
    \226\ See, e.g., W3C, Web Content Accessibility Guidelines 
(WCAG) 2.1, Success Criterion 2.3.1. Three Flashes or Below 
Threshold (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#three-flashes-or-below-threshold [https://perma.cc/A7P9-WCQY] (addressing aspects of content design that could trigger 
seizures or other physical reactions).
---------------------------------------------------------------------------

Justification for This Provision

    After carefully considering the various public comments 
received, the Department believes that a tailored approach is needed 
for measuring compliance with a technical standard in the digital 
space. The Department also believes that the compliance framework 
adopted in Sec.  35.205 is preferable to any available alternatives 
because it strikes the most appropriate balance between equal access 
for individuals with disabilities and feasibility for public 
entities.

The Need To Tailor a Compliance Approach for the Digital Space

    Most of the commenters who addressed the question of what 
approach subpart H of this part should take to assessing compliance 
provided information that supported the Department's decision to 
tailor an approach for measuring compliance that is specific to the 
digital space (i.e., an approach that differs from the approach that 
the Department has taken for physical access). Only a few commenters 
believed that the Department should require 100 percent conformance 
to WCAG 2.1 Level AA, as is generally required for newly constructed 
facilities.\227\ Commenters generally discussed two reasons why a 
different approach was appropriate: differences between the physical 
and digital space and increased litigation risk.
---------------------------------------------------------------------------

    \227\ Section 35.151(a) and (c).
---------------------------------------------------------------------------

    First, many commenters, including commenters from State and 
local government entities and trade groups representing public 
accommodations, emphasized how the built environment differs from 
the digital environment. These commenters agreed with the 
Department's suggestion in the NPRM that the dynamic and 
interconnected nature of web content and mobile apps could present 
unique challenges for compliance.\228\
---------------------------------------------------------------------------

    \228\ 88 FR 51981.
---------------------------------------------------------------------------

    Digital content changes much more frequently than buildings do. 
Every modification to web content or a mobile app could lead to some 
risk of falling out of perfect conformance to WCAG 2.1 Level AA. 
Public entities will need to address this risk much more frequently 
under subpart H of this part than they do under the ADA's physical 
access requirements, because web content and mobile apps are updated 
much more often than buildings are. By their very nature, web 
content and mobile apps can easily be updated often, while most 
buildings are designed to last for years, if not decades, without 
extensive updates.
    As such, State and local government entities trying to comply 
with their obligations under subpart H of this part will need to 
evaluate their compliance more frequently than they evaluate the 
accessibility of their buildings. But regular consideration of how 
any change that they make to their web content or mobile app will 
affect conformance to WCAG 2.1 Level AA and the resulting iterative 
updates may still allow minor nonconformances to escape notice. 
Given these realities attending web content and mobile apps, the 
Department believes that it is likely to be more difficult for State 
and local government entities to maintain perfect conformance to the 
technical standard set forth in subpart H than it is to comply with 
the ADA Standards. Commenters agreed that maintaining perfect 
conformance to the technical standard would be difficult.
    Web content and content in mobile apps are also more likely to 
be interconnected, such that updates to some content may affect the 
conformance of other content in unexpected ways, including in ways 
that may lead to technical nonconformance without affecting the user 
experience for individuals with disabilities. Thus, to maintain 
perfect conformance, it would not necessarily be sufficient for 
public entities to confirm the conformance of their new content; 
they would also need to ensure that any updates do not affect the 
conformance of existing content. The same kind of challenge is 
unlikely to occur in physical spaces.
    Second, many commenters raised concerns about the litigation 
risk that requiring perfect conformance to WCAG 2.1 Level AA would 
pose. Commenters feared being subjected to a flood of legal claims 
based on any failure to conform to the technical standard, however 
minor, and regardless of the impact--or lack thereof--the 
nonconformance has on accessibility. Commenters agreed with the 
Department's suggestion that due to the dynamic, complex, and 
interconnected nature of web content and mobile apps, a public 
entity's web content and mobile apps may be more likely to be out of 
conformance to WCAG 2.1 Level AA than its buildings are to be out of 
compliance with the ADA Standards, leading to increased legal risk. 
Some commenters even stated that 100 percent conformance to WCAG 2.1 
Level AA would be unattainable or impossible to maintain. Commenters 
also agreed with the Department's understanding that the prevalence 
of automated web accessibility testing could enable any individual 
to find evidence of nonconformance to WCAG 2.1 Level AA even where 
that individual has not experienced any impact on access and the 
nonconformance would not affect others' access, with the result that 
identifying instances of merely technical nonconformance to WCAG 2.1 
Level AA is likely much easier than identifying merely technical 
noncompliance with the ADA Standards.
    Based on the comments it received, the Department believes that 
if it does not implement a tailored approach to compliance under 
subpart H of this part, the burden of litigation under subpart H 
could become particularly challenging for public entities, 
enforcement agencies, and the courts. Though many comments about 
litigation risk came from public entities, commenters from some 
disability advocacy organizations agreed that subpart H should not 
encourage litigation about issues that do not affect a person with a 
disability's ability to equally use and benefit from a website or 
mobile app, and that liability should be limited. After considering 
the information commenters provided, the Department is persuaded 
that measuring compliance as strictly 100 percent conformance to 
WCAG 2.1 Level AA would not be the most prudent approach, and that 
an entity's compliance obligations can be limited under some narrow 
circumstances without undermining the objective of ensuring equal 
access to web content and mobile apps in subpart H.

Reasons for Adopting This Compliance Approach

    The Department has carefully considered many different 
approaches to defining when a State or local government entity has 
met its obligations under subpart H of this part. Of all the 
approaches considered--including those discussed in the NPRM as well 
as those

[[Page 31390]]

proposed by commenters--the Department believes the compliance 
approach set forth in Sec.  35.205 strikes the most appropriate 
balance between providing equal access for people with disabilities 
and ensuring feasibility for public entities, courts, and Federal 
agencies. The Department believes that the approach set forth in 
subpart H is preferable to all other approaches because it 
emphasizes actual access, is consistent with existing legal 
frameworks, and was supported by a wide range of commenters.
    Primarily, the Department has selected this approach because it 
appropriately focuses on the experience of individuals with 
disabilities who are trying to use public entities' web content or 
mobile apps. By looking at the effect of any nonconformance to the 
technical standard, this approach will most successfully implement 
the ADA's goals of ``equality of opportunity'' and ``full 
participation.'' \229\ It will also be consistent with public 
entities' existing regulatory obligations to provide individuals 
with disabilities with an equal opportunity to participate in and 
benefit from their services, obtain the same result, and gain the 
same benefit.\230\ This approach ensures that nonconformance to the 
technical standard can be addressed when it affects these core 
promises of equal access.
---------------------------------------------------------------------------

    \229\ 42 U.S.C. 12101(a)(7).
    \230\ See Sec.  35.130(b)(1)(ii) and (iii).
---------------------------------------------------------------------------

    The Department heard strong support from the public for ensuring 
that people with disabilities have equal access to the same 
services, programs, and activities as people without disabilities, 
with equivalent timeliness, privacy, independence, and ease of use. 
Similarly, many commenters from disability advocacy organizations 
stated that the goal of subpart H of this part should be to provide 
access to people with disabilities that is functionally equivalent 
to the access experienced by people without disabilities. Other 
disability advocates stressed that technical compliance should not 
be prioritized over effective communication. Section 35.205 will 
help to achieve these goals.
    The Department believes that this approach will not have a 
detrimental impact on the experience of people with disabilities who 
are trying to use web content or mobile apps. By its own terms, 
Sec.  35.205 would require a public entity to demonstrate that any 
nonconformance would not affect the ability of individuals with 
disabilities to use the public entity's web content or mobile app in 
a manner that provides substantially equivalent timeliness, privacy, 
independence, and ease of use. As discussed earlier in the analysis 
of Sec.  35.205, it is likely that this will be a high hurdle to 
clear. If nonconformance to the technical standard would affect 
people with disabilities' ability to use the web content or mobile 
app in this manner, this provision will not apply, and a public 
entity will not have met its obligations under subpart H of this 
part. As noted earlier in this discussion, full conformance to WCAG 
2.1 Level AA is the only definitive way for a public entity to avoid 
reliance on Sec.  35.205.
    This provision would nonetheless provide public entities who 
have failed to conform to WCAG 2.1 Level AA with a way to avoid the 
prospect of liability for an error that is purely technical in 
nature and would not affect accessibility in practice. This will 
help to curtail the specter of potential liability for every minor 
technical error, no matter how insignificant. However, Sec.  35.205 
is intended to apply in rare circumstances and will require a 
detailed analysis of the specific facts surrounding the impact of 
each alleged instance of nonconformance. As noted earlier, the 
Department does not expect or intend that Sec.  35.205 will excuse 
most nonconformance to the technical standard.
    The Department also believes this approach is preferable to the 
other approaches considered because it is likely to be familiar to 
people with disabilities and public entities, and this general 
consistency with title II's regulatory framework (notwithstanding 
some necessary differences from the physical context as noted 
earlier in this discussion) has important benefits. The existing 
regulatory framework similarly requires public entities to provide 
equal opportunity to participate in or benefit from services, 
programs, or activities; \231\ equal opportunity to obtain the same 
result; \232\ full and equal enjoyment of services, programs, and 
activities; \233\ and communications with people with disabilities 
that are as effective as communications with others, which includes 
consideration of timeliness, privacy, and independence.\234\ The 
1991 and 2010 ADA Standards also allow designs or technologies that 
result in substantially equivalent accessibility and usability.\235\ 
Because of the consistency between Sec.  35.205 and existing law, 
the Department does not anticipate that the requirements for 
bringing challenges to compliance with subpart H of this part will 
be radically different than the framework that currently exists. 
Subpart H adds certainty by establishing that conformance to WCAG 
2.1 Level AA is generally sufficient for a public entity to meet its 
obligations to ensure accessibility of web content and mobile apps. 
However, in the absence of perfect conformance to WCAG 2.1 Level AA, 
the compliance approach established by Sec.  35.205 keeps the focus 
on equal access, as it is under current law. Section 35.205 provides 
a limited degree of flexibility to public entities without 
displacing this part's guarantee of equal access for individuals 
with disabilities or upsetting the existing legal framework.
---------------------------------------------------------------------------

    \231\ Id. Sec. Sec.  35.130(b)(1)(ii) and 35.160(b)(1).
    \232\ Id. Sec.  35.130(b)(1)(iii).
    \233\ Id. Sec.  35.130(b)(8).
    \234\ Id. Sec.  35.160(a)(1) and (b).
    \235\ 28 CFR part 36, appendix D, at 1000 (2022) (1991 ADA 
Standards); 36 CFR part 1191, appendix B, at 329 (2022) (2010 ADA 
Standards).
---------------------------------------------------------------------------

    Finally, this approach to compliance is preferable to the other 
approaches the Department considered because there was a notable 
consensus among public commenters supporting it. A wide range of 
commenters, including disability advocacy organizations, trade 
groups representing public accommodations, accessibility experts, 
and State and local government entities submitted supportive 
comments. Even some of the commenters who opposed this approach 
noted that it would be helpful if it was combined with a clear 
technical standard, which the Department has done. Commenters 
representing a broad spectrum of interests seem to agree with this 
approach, with several commenters proposing very similar regulatory 
language. After considering the relative consensus among commenters, 
together with the other factors discussed herein, the Department has 
decided to adopt the approach to defining compliance that is set 
forth in Sec.  35.205.

Alternative Approaches Considered

    In addition to the approach set forth in Sec.  35.205, the 
Department also considered compliance approaches that would have 
allowed isolated or temporary interruptions to conformance; required 
a numerical percentage of conformance to the technical standard; or 
allowed public entities to demonstrate compliance either by 
establishing and following certain specified accessibility policies 
and practices or by showing organizational maturity (i.e., that the 
entity has a sufficiently robust accessibility program to 
consistently produce accessible web content and mobile apps). The 
Department also considered the approaches that other States, Federal 
agencies, and countries have taken, and other approaches suggested 
by commenters. After carefully weighing all of these alternatives, 
the Department believes the compliance approach adopted in Sec.  
35.205 is the most appropriate framework for determining whether a 
State or local government entity has met its obligations under Sec.  
35.200.

Isolated or Temporary Interruptions

    As the Department noted in the NPRM,\236\ the current title II 
regulation does not prohibit isolated or temporary interruptions in 
service or access to facilities due to maintenance or repairs.\237\ 
In response to the Department's question about whether it should add 
a similar provision in subpart H of this part, commenters generally 
supported including an analogous provision in subpart H. They noted 
that some technical difficulties are inevitable, especially when 
updating web content or mobile apps. Some commenters elaborated that 
noncompliance with the technical standard should be excused if it is 
an isolated incident, as in one page out of many; temporary, as in 
an issue with an update that is promptly fixed; or through other 
approaches to measuring compliance addressed in this section. A few 
commenters stated that due to the continuously evolving nature of 
web content and mobile apps, there is even more need to include a 
provision regarding isolated or temporary interruptions than there 
is in the physical space. Another commenter suggested that entities 
should prioritize emergency-related information by making sure they 
have alternative methods of communication in place in anticipation 
of isolated or temporary interruptions that prevent access to this 
content.
---------------------------------------------------------------------------

    \236\ 88 FR 51981.
    \237\ See Sec.  35.133(b).
---------------------------------------------------------------------------

    The Department has considered all of the comments it received on 
this issue and,

[[Page 31391]]

based on those comments and its own independent assessment, decided 
not to separately excuse an entity's isolated or temporary 
noncompliance with Sec.  35.200(b) due to maintenance or repairs in 
subpart H of this part. Rather, as stated in Sec.  35.205, an 
entity's legal responsibility for an isolated or temporary instance 
of nonconformance to WCAG 2.1 Level AA will depend on whether the 
isolated or temporary instance of nonconformance--as with any other 
nonconformance--would affect the ability of individuals with 
disabilities to use the public entity's web content or mobile app in 
a substantially equivalent way.
    The Department believes it is likely that the approach set forth 
in Sec.  35.205 reduces the need for a provision that would 
explicitly allow for instances of isolated or temporary 
noncompliance due to maintenance or repairs, while simultaneously 
limiting the negative impact of such a provision on individuals with 
disabilities. The Department believes this is true for two reasons.
    First, to the extent isolated or temporary noncompliance due to 
maintenance or repairs occur that affect web content or mobile apps, 
it logically follows from the requirements in subpart H of this part 
that these interruptions should generally result in the same impact 
on individuals with and without disabilities after the compliance 
date because, in most cases, all users would be relying on the same 
content, and so interruptions to that content would impact all 
users. From the compliance date onward, accessible web content and 
mobile apps and the web content and mobile apps used by people 
without disabilities should be one and the same (with the rare 
exception of conforming alternate versions provided for in Sec.  
35.202). Therefore, the Department expects that isolated or 
temporary noncompliance due to maintenance or repairs generally will 
affect the ability of people with disabilities to use web content or 
mobile apps to the same extent it will affect the experience of 
people without disabilities. For example, if a website is undergoing 
overnight maintenance and so an online form is temporarily 
unavailable, the form would already conform to WCAG 2.1 Level AA, 
and so there would be no separate feature or form for individuals 
with disabilities that would be affected while a form for people 
without disabilities is functioning. In such a scenario, individuals 
with and without disabilities would both be unable to access web 
content, such that there would be no violation of subpart H of this 
part.
    Thus, the Department believes that a specific provision 
regarding isolated or temporary noncompliance due to maintenance or 
repairs is less necessary than it is for physical access. When there 
is maintenance to a feature that provides physical access, such as a 
broken elevator, access for people with disabilities is particularly 
impacted. In contrast, when there is maintenance to web content or 
mobile apps, people with and without disabilities will generally 
both be denied access, such that no one is denied access on the 
basis of disability.
    Second, even to the extent isolated or temporary noncompliance 
due to maintenance or repairs affects only an accessibility feature, 
that noncompliance may fit the parameters laid out in Sec.  35.205 
such that an entity will be deemed to have complied with its 
obligations under Sec.  35.200. Section 35.205 does not provide a 
blanket limitation that would excuse all isolated or temporary 
noncompliance due to maintenance or repairs, however. The 
provision's applicability would depend on the particular 
circumstances of the interruption and its impact on people with 
disabilities. It is possible that an interruption that only affects 
an accessibility feature will not satisfy the elements of Sec.  
35.205 and an entity will not be deemed in compliance with Sec.  
35.200. Even one temporary or isolated instance of nonconformance 
could affect the ability of individuals with disabilities to use the 
web content with substantially equivalent ease of use, depending on 
the circumstances. As discussed in this section, this will 
necessarily be a fact-specific analysis.
    In addition to being less necessary than in the physical access 
context, the Department also believes a specific provision regarding 
isolated or temporary interruptions due to maintenance or repairs 
would have more detrimental incentives in the digital space by 
discouraging public entities from adopting practices that would 
reduce or avert the disruptions caused by maintenance and repair 
that affect accessibility. Isolated or temporary noncompliance due 
to maintenance or repairs of features that provide physical access 
would be necessary regardless of what practices public entities put 
in place,\238\ and the repairs and maintenance to those features 
often cannot be done without interrupting access specifically for 
individuals with disabilities. For example, curb ramps will need to 
be repaved and elevators will need to be repaired because physical 
materials break down. In contrast, the Department believes that, 
despite the dynamic nature of web content and mobile apps, 
incorporating accessible design principles and best practices will 
generally enable public entities to anticipate and avoid many 
instances of isolated or temporary noncompliance due to maintenance 
or repairs--including many isolated or temporary instances of 
noncompliance that would have such a significant impact that they 
would affect people with disabilities' ability to use web content or 
mobile apps in a substantially equivalent way. Some of these best 
practices, such as regular accessibility testing and remediation, 
would likely be needed for public entities to comply with subpart H 
of this part regardless of whether the Department incorporated a 
provision regarding isolated or temporary interruptions. And 
practices like testing content before it is made available will 
frequently allow maintenance and repairs that affect accessibility 
to occur without interrupting access, in a way that is often 
impossible in physical spaces. The Department declines to adopt a 
limitation for isolated or temporary interruptions due to 
maintenance or repairs. Such a limitation may disincentivize public 
entities from implementing processes that could prevent many 
interruptions from affecting substantially equivalent access.
---------------------------------------------------------------------------

    \238\ See 28 CFR part 35, appendix B, at 705 (2022) (providing 
that it is impossible to guarantee that mechanical devices will 
never fail to operate).
---------------------------------------------------------------------------

Numerical Approach

    The Department considered requiring a certain numerical 
percentage of conformance to the technical standard. This percentage 
could be a simple numerical calculation based on the number of 
instances of nonconformance across the public entity's web content 
or mobile app, or the percentage could be calculated by weighting 
different instances of nonconformance differently. Weighted 
percentages of many different types, including giving greater weight 
to more important content, more frequently accessed content, or more 
severe access barriers, were considered.
    When discussing a numerical approach in the NPRM, the Department 
noted that the approach seemed unlikely to ensure access.\239\ Even 
if only a very small percentage of content does not conform to the 
technical standard, that could still block an individual with a 
disability from accessing a service, program, or activity. For 
example, even if there was only one instance of nonconformance, that 
single error could prevent an individual with a disability from 
submitting an application for public benefits. Commenters agreed 
with this concern. As such, the Department continues to believe that 
a percentage-based approach would not be sufficient to advance the 
objective of subpart H of this part to ensure equal access to State 
and local government entities' web content and mobile apps. 
Commenters also agreed with the Department that a percentage-based 
standard would be difficult to implement because percentages would 
be challenging to calculate.
---------------------------------------------------------------------------

    \239\ 88 FR 51982-51983.
---------------------------------------------------------------------------

    Based on the public comments it received about this framework, 
which overwhelmingly agreed with the concerns the Department raised 
in the NPRM, the Department continues to believe that adopting a 
percentage-based approach is not feasible. The Department received a 
very small number of comments advocating for this approach, which 
were all from State and local government entities. Even fewer 
commenters suggested a framework for implementing this approach 
(i.e., the percentage of conformance that should be adopted or how 
that percentage should be calculated). Based on the very limited 
information provided in support of a percentage-based approach 
submitted from commenters, as well as the Department's independent 
assessment, it would be challenging for the Department to articulate 
a sufficient rationale for choosing a particular percentage of 
conformance or creating a specific conformance formula. Nothing 
submitted in public comments meaningfully changed the Department's 
previous concerns about calculating a percentage or specifying a 
formula. For all of the reasons discussed, the Department declines 
to adopt this approach.

[[Page 31392]]

Policy-Based Approach

    The Department also considered allowing a public entity to 
demonstrate compliance with subpart H of this part by affirmatively 
establishing and following certain robust policies and practices for 
accessibility feedback, testing, and remediation. Under this 
approach, the Department would have specified that nonconformance to 
WCAG 2.1 Level AA does not constitute noncompliance with subpart H 
if a public entity has established certain policies for testing the 
accessibility of its web content and mobile apps and remediating 
inaccessible content, and the entity can demonstrate that it follows 
those policies. Potential policies could also address accessibility 
training.
    As the Department stated in the NPRM, there were many ways to 
define the specific policies that would have been deemed sufficient 
under this approach.\240\ Though many commenters supported the idea 
of a policy-based approach, they suggested a plethora of policies 
that should be required by subpart H of this part. Commenters 
disagreed about what type of testing should be required (i.e., 
automated, manual, or both), who should conduct testing, how 
frequently testing should be conducted, and how promptly any 
nonconformance should be remediated. As just one example of the 
broad spectrum of policies proposed, the frequency of accessibility 
testing commenters suggested ranged from every 30 days to every five 
years. A few commenters suggested that no time frames for testing or 
remediation should be specified in subpart H; rather, they proposed 
that the nature of sufficient policies should depend on the covered 
entity's resources, the characteristics of the content, and the 
complexity of remediating the nonconformance. Commenters similarly 
disagreed about whether, when, and what kind of training should be 
required. Commenters also suggested requiring many additional 
policies and practices, including mechanisms for providing 
accessibility feedback; accessibility statements; third-party 
audits; certifications of conformance; documentation of contracting 
and procurement practices; adopting specific procurement practices; 
setting certain budgets or staffing requirements; developing 
statewide panels of accessibility experts; and making accessibility 
policies, feedback, reports, or scorecards publicly available.
---------------------------------------------------------------------------

    \240\ Id. at 51983-51984.
---------------------------------------------------------------------------

    The Department declines to adopt a policy-based approach 
because, based on the wide range of policies and practices proposed 
by commenters, there is not a sufficient rationale that would 
justify adopting any specific set of accessibility policies in the 
generally applicable regulation in subpart H of this part. Many of 
the policies commenters suggested would require the Department to 
dictate particular details of all public entities' day-to-day 
operations in a way the Department does not believe is appropriate 
or sufficiently justified to do in subpart H. There was no consensus 
among commenters about what policies would be sufficient, and most 
commenters did not articulate a specific basis supporting why their 
preferred policies were more appropriate than any other policies. In 
the absence of more specific rationales or a clearer consensus among 
commenters or experts in the field about what policies would be 
sufficient, the Department does not believe it is appropriate to 
prescribe what specific accessibility testing and remediation 
policies all State and local government entities must adopt to 
comply with their obligations under subpart H. Based on the 
information available to the Department at this time, the 
Department's adoption of any such specific policies would be 
unsupported by sufficient evidence that these policies will ensure 
accessibility, which could cause significant harm. It would allow 
public entities to comply with their legal obligations under subpart 
H based on policies alone, even though those policies may fail to 
provide equal access to online services, programs, or activities.
    The Department also declines to adopt a policy-based approach 
that would rely on the type of general, flexible policies supported 
by some commenters, in which the sufficiency of public entities' 
policies would vary depending on the factual circumstances. The 
Department does not believe that such an approach would give 
individuals with disabilities sufficient certainty about what 
policies and access they could expect. Such an approach would also 
fail to give public entities sufficient certainty about how they 
should meet their legal obligations under subpart H of this part. If 
it adopted a flexible approach suggested by commenters, the 
Department might not advance the current state of the law, because 
every public entity could choose any accessibility testing and 
remediation policies it believed would be sufficient to meet its 
general obligations, without conforming to the technical standard or 
ensuring access. The Department has heard State and local government 
entities' desire for increased clarity about their legal 
obligations, and adopting a flexible standard would not address that 
need.

Organizational Maturity

    Another compliance approach that the Department considered would 
have allowed an entity to demonstrate compliance with subpart H of 
this part by showing organizational maturity (i.e., that the 
organization has a sufficiently robust program for web and mobile 
app accessibility). As the Department explained in the NPRM, while 
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.\241\
---------------------------------------------------------------------------

    \241\ Id. at 51984; see also W3C, Accessibility Maturity Model: 
Group Draft Note, Sec.  1.1: About the Accessibility Maturity Model 
(Dec. 15, 2023), https://www.w3.org/TR/maturity-model/ [https://perma.cc/UX4X-J4MF].
---------------------------------------------------------------------------

    Commenters, including disability advocacy organizations, State 
and local government entities, trade groups representing public 
accommodations, and accessibility experts were largely opposed to 
using an organizational maturity approach to evaluate compliance. 
Notably, one of the companies that developed an organizational 
maturity model the Department discussed in the NPRM did not believe 
that an organizational maturity model was an appropriate way to 
assess compliance. Other commenters who stated that they supported 
the organizational maturity approach also seemed to be endorsing 
organizational maturity as a best practice rather than a legal 
framework, expressing that it was not an appropriate substitute for 
conformance to a technical standard.
    Misunderstandings about what an organizational maturity 
framework is and how the Department was proposing to use it that 
were evident in several comments also demonstrated that the 
organizational maturity approach raised in the NPRM was not 
sufficiently clear to the public. For example, at least one 
commenter conflated organizational maturity with the approach the 
Department considered that would assess an organization's policies. 
Another commenter seemed to understand the Department's 
consideration of organizational maturity as only recommending a best 
practice, even though the Department was considering it as legal 
requirement. Comments like these indicate that the organizational 
maturity approach the Department considered to measure compliance 
would be confusing to the public if adopted.
    Among commenters that supported the organizational maturity 
approach, there was no consensus about how organizational maturity 
should be defined or assessed, or what level of organizational 
maturity should be sufficient to demonstrate compliance with subpart 
H of this part. There are many ways to measure organizational 
maturity, and it is not clear to the Department that one 
organizational maturity model is more appropriate or more effective 
than any other. The Department therefore declines to adopt an 
organizational maturity approach in subpart H because any 
organizational maturity model for compliance with web accessibility 
that the Department could develop or incorporate would not have 
sufficient justification based on the facts available to the 
Department at this time. As with the policy-based approach discussed 
previously in this appendix, if the Department were to allow public 
entities to define their own organizational maturity approach 
instead of adopting one specific model, this would not provide 
sufficient predictability or certainty for people with disabilities 
or public entities.
    The Department also declines to adopt this approach because 
commenters did not provide--and the Department is not aware of--
information or data to suggest that increased organizational 
maturity reliably resulted in increased conformance to WCAG 2.1 
Level AA. Like the policy-based approach discussed previously in 
this appendix, if the Department were to adopt an organizational 
maturity approach that was not sufficiently rigorous, public 
entities would be able to comply with subpart H of this part without 
providing equal access. This would undermine the purpose of the 
part.

[[Page 31393]]

Other Federal, International, and State Approaches

    The Department also considered approaches to measuring 
compliance that have been used by other agencies, other countries or 
international organizations, and States, as discussed in the 
NPRM.\242\ As to other Federal agencies' approaches, the Department 
has decided not to adopt the Access Board's standards for section 
508 compliance for the reasons discussed in Sec.  35.200 of the 
section-by-section analysis regarding the technical standard. The 
Section 508 Standards require full conformance to WCAG 2.0 Level 
AA,\243\ but the Department has determined that requiring perfect 
conformance to the technical standard set forth in subpart H of this 
part would not be appropriate for the reasons discussed elsewhere in 
this appendix. Perfect conformance is less appropriate in subpart H 
than under section 508 given the wide variety of public entities 
covered by title II of the ADA, many of which have varying levels of 
resources, compared to the relatively limited number of Federal 
agencies that must follow section 508. For the reasons stated in the 
section-by-section analysis of Sec.  35.200 regarding compliance 
time frame alternatives, the Department also declines to adopt the 
tiered approach that the Department of Transportation took in its 
regulation on accessibility of air carrier websites, which required 
certain types of content to be remediated more quickly.\244\
---------------------------------------------------------------------------

    \242\ 88 FR 51980-51981.
    \243\ 36 CFR 1194.1; id. at part 1194, appendix A, section 
E205.4.
    \244\ See 14 CFR 382.43.
---------------------------------------------------------------------------

    The Department has also determined that none of the 
international approaches to evaluating compliance with web 
accessibility laws that were discussed in the NPRM are currently 
feasible to adopt in the United States.\245\ The methodologies used 
by the European Union and Canada require reporting to government 
agencies. This would pose counterproductive logistical and 
administrative difficulties for regulated entities and the 
Department. The Department believes that the resources public 
entities would need to spend on data collection and reporting would 
detract from efforts to increase the accessibility of web content 
and mobile apps. Furthermore, reporting to Federal agencies is not 
required under other subparts of the ADA, and it is not clear to the 
Department why such reporting would be more appropriate under 
subpart H of this part than under others. New Zealand's approach, 
which requires testing and remediation, is similar to the policy-
based approach already discussed in this section, and the Department 
declines to adopt that approach for the reasons stated in that 
discussion. The approach taken in the United Kingdom, where a 
government agency audits websites and mobile apps, sends a report to 
the public entity, and requires the entity to fix accessibility 
issues, is similar to one method the Department currently uses to 
enforce title II of the ADA, including title II web and mobile app 
accessibility.\246\ Though the Department will continue to 
investigate complaints and enforce the ADA, given constraints on its 
resources and the large number of entities within its purview to 
investigate, the Department is unable to guarantee that it will 
conduct a specific amount of enforcement under subpart H of this 
part on a particular schedule.
---------------------------------------------------------------------------

    \245\ 88 FR 51980.
    \246\ See Sec.  35.172(b) and (c) (describing the process for 
compliance reviews). As noted, however, the Department is unable to 
guarantee that it will conduct a specific amount of enforcement 
under subpart H of this part on a particular schedule.
---------------------------------------------------------------------------

    The Department has considered many States' approaches to 
assessing compliance with their web accessibility laws \247\ and 
declines to adopt these laws at the Federal level. State laws like 
those in Florida, Illinois, and Massachusetts, which do not specify 
how compliance will be measured or how entities can demonstrate 
compliance, are essentially requiring 100 percent compliance with a 
technical standard. This approach is not feasible for the reasons 
discussed earlier in this section. In addition, this approach is not 
feasible because of the large number and wide variety of public 
entities covered by the ADA, as compared with the relatively limited 
number of State agencies in a given State. Laws like California's, 
which require entities covered by California's law to certify or 
post evidence of compliance, would impose administrative burdens on 
public entities similar to those imposed by the international 
approaches discussed in the preceding paragraph. Some State 
agencies, including in California, Minnesota, and Texas, have 
developed assessment checklists, trainings, testing tools, and other 
resources. The Department will issue a small entity compliance 
guide,\248\ which should help public entities better understand 
their obligations. As discussed elsewhere in this appendix, the 
Department may also provide further guidance about best practices 
for a public entity to meet its obligations under subpart H of this 
part. However, such resources are not substitutes for clear and 
achievable regulatory requirements. Some commenters stated that 
regulations should not be combined with best practices or guidance, 
and further stated that testing methodologies are more appropriate 
for guidance. The Department agrees and believes State and local 
government entities are best suited to determine how they will 
comply with the technical standard, depending on their needs and 
resources.
---------------------------------------------------------------------------

    \247\ 88 FR 51980-51981.
    \248\ See Public Law 104-121, sec. 212, 110 Stat. at 858.
---------------------------------------------------------------------------

    The Department also declines to adopt a model like the one used 
in Texas, which requires State agencies to, among other steps, 
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.\249\ This approach is one way States and other public 
entities may choose to ensure that they comply with subpart H of 
this part. However, as noted in the discussion of the policy-based 
approach, the Department is unable to calibrate requirements that 
provide sufficient predictability and certainty for every public 
entity while maintaining sufficient flexibility. The Department 
declines to adopt an approach like Texas's for the same reasons it 
declined to adopt a policy-based approach.
---------------------------------------------------------------------------

    \249\ 1 Tex. Admin. Code secs. 206.50, 213.21 (West 2023).
---------------------------------------------------------------------------

    Commenters suggested a few additional State and international 
approaches to compliance that were not discussed in the NPRM. Though 
the Department reviewed and considered each of these approaches, it 
finds that they are not appropriate to adopt in subpart H of this 
part. First, Washington's accessibility policy \250\ and associated 
standard \251\ require agencies to develop policies and processes to 
ensure compliance with the technical standard, including 
implementing and maintaining accessibility plans. As with Texas's 
law and a more general policy-based approach, which are both 
discussed elsewhere in this appendix, Washington's approach would 
not provide sufficient specificity and certainty to ensure 
conformance to a technical standard in the context of the title II 
regulatory framework that applies to a wide range of public 
entities; however, this is one approach to achieving conformance 
that entities could consider.
---------------------------------------------------------------------------

    \250\ Wash. Tech. Sols., Policy 188--Accessibility, https://watech.wa.gov/sites/default/files/2023-09/188_Accessibility_2019_AS%2520v3%2520Approved.docx. A Perma archive 
link was unavailable for this citation.
    \251\ Wash. Tech. Sols., Standard 188.10--Minimum Accessibility 
Standard, https://watech.wa.gov/sites/default/files/2023-09/188.10_Min_Std_2019_AS_Approved_03102020_1.docx. A Perma archive 
link was unavailable for this citation.
---------------------------------------------------------------------------

    Additionally, one commenter suggested that the Department look 
to the Accessibility for Ontarians with Disabilities Act \252\ and 
consider taking some of the steps to ensure compliance that the 
commenter states Ontario has taken. Specifically, the commenter 
suggested requiring training on how to create accessible content and 
creating an advisory council that makes suggestions on how to 
increase public education about the law's requirements. Though the 
Department will consider providing additional guidance to the public 
about how to comply with subpart H of this part, it declines to 
require State and local government entities to provide training to 
their employees. This would be part of a policy-based compliance 
approach, which the Department has decided not to adopt for the 
reasons discussed. However, the Department notes that public 
entities will likely find that some training is necessary and 
helpful to achieve compliance. The Department also declines to 
require State and local government entities to adopt accessibility 
advisory councils because, like training, this would be part of a 
policy-based compliance approach. However, public entities remain 
free to do so if they choose.
---------------------------------------------------------------------------

    \252\ Accessibility for Ontarians With Disabilities Act, 2005, 
S.O. 2005, c. 11 (Can.), https://www.ontario.ca/laws/statute/05a11 
[https://perma.cc/V26B-2NSG].
---------------------------------------------------------------------------

    Finally, a coalition of State Attorneys General described how 
their States' agencies currently determine whether State websites 
and other technology are accessible, and suggested that the 
Department incorporate

[[Page 31394]]

similar practices into its compliance framework. Some of these 
States have designated agencies that conduct automated testing, 
manual testing, or both, while others offer online tools or require 
agencies to conduct their own manual testing. Though some of these 
approaches come from States not already discussed, including Hawaii, 
New Jersey, and New York, the approaches commenters from these 
States discussed are similar to other approaches the Department has 
considered. These States have essentially adopted a policy-based 
approach. As noted elsewhere in this appendix, the Department 
believes that it is more appropriate for States and other regulated 
entities to develop their own policies to ensure compliance than it 
would be for the Department to establish one set of compliance 
policies for all public entities. Several State agencies conduct 
regular audits, but as noted previously in this appendix, the 
Department lacks the capacity to guarantee it will conduct a 
specific number of enforcement actions under subpart H of this part 
on a particular schedule. And as an agency whose primary 
responsibility is law enforcement, the Department is not currently 
equipped to develop and distribute accessibility testing software 
like some States have done. State and local government entities may 
wish to consider adopting practices similar to the ones commenters 
described even though subpart H does not require them to do so.

Other Approaches Suggested by Commenters

    Commenters also suggested many other approaches the Department 
should take to assess and ensure compliance with subpart H of this 
part. The Department has considered all of the commenters' 
suggestions and declines to adopt them at this time.
    First, commenters suggested that public entities should be 
permitted to provide what they called an ``accommodation'' or an 
``equally effective alternative method of access'' when web content 
or mobile apps are not accessible. Under the approach these 
commenters envisioned, people with disabilities would need to pursue 
an interactive process where they discussed their access needs with 
the public entity and the public entity would determine how those 
needs would be met. The Department believes that adopting this 
approach would undermine a core premise of subpart H of this part, 
which is that web content and mobile apps will generally be 
accessible by default. That is, people with disabilities typically 
will not need to make a request to gain access to services, 
programs, or activities offered online, nor will they typically need 
to receive information in a different format. If the Department were 
to adopt the commenters' suggestion, the Department believes that 
subpart H would not address the gaps in accessibility highlighted in 
the need for the rulemaking discussed in section III.D.4 of the 
preamble to the final rule, as the current state of the law already 
requires public entities to provide reasonable modifications and 
effective communication to people with disabilities.\253\ Under 
title II, individuals with disabilities cannot be, by reason of such 
disability, excluded from participation in or denied the benefits of 
the services, programs, or activities offered by State and local 
government entities, including those offered via the web and mobile 
apps.\254\ One of the goals of the ADA also includes reducing 
segregation.\255\ Accordingly, it is important for individuals with 
disabilities to have access to the same platforms as their neighbors 
and friends at the same time, and the commenters' proposal would not 
achieve that objective.
---------------------------------------------------------------------------

    \253\ Section 35.130(b)(7) and 35.160.
    \254\ 42 U.S.C. 12132.
    \255\ 42 U.S.C. 12101(a)(2) and (5).
---------------------------------------------------------------------------

    Second, commenters suggested a process, which is sometimes 
referred to as ``notice and cure,'' by which a person with a 
disability who cannot access web content or a mobile app would need 
to notify the public entity that their web content or mobile app was 
not accessible and give the public entity a certain period of time 
to remediate the inaccessibility before the entity could be 
considered out of compliance with subpart H of this part. The 
Department is not adopting this framework for reasons similar to 
those discussed in relation to the ``equally effective alternative'' 
approach rejected in the previous paragraph. With subpart H, the 
Department is ensuring that people with disabilities generally will 
not have to request access to public entities' web content and 
content in mobile apps, nor will they typically need to wait to 
obtain that access. Given the Department's longstanding position on 
the accessibility of online content, discussed in section III.B and 
C of the preamble to the final rule, public entities should already 
be on notice of their obligations. If they are not, the final rule 
unquestionably puts them on notice.
    Third, commenters suggested a flexible approach to compliance 
that would only require substantial compliance, good faith effort, 
reasonable efforts, or some similar concept that would allow the 
meaning of compliance to vary too widely depending on the 
circumstances, and without a clear connection to whether those 
efforts result in actual improvements to accessibility for people 
with disabilities. The Department declines to adopt this approach 
because it does not believe such an approach would provide 
sufficient certainty or predictability to State and local government 
entities or individuals with disabilities. Such an approach would 
undermine the benefits of adopting a technical standard.
    The Department has already built a series of mechanisms into 
subpart H of this part that are designed to make it feasible for 
public entities to comply, including the delayed compliance dates in 
Sec.  35.200(b), the exceptions in Sec.  35.201, the conforming 
alternate version provision in Sec.  35.202, the fundamental 
alteration or undue burdens limitations in Sec.  35.204, and the 
compliance approach discussed here. In doing so, the Department has 
allowed for several departures from the technical standard, but only 
under clearly defined and uniform criteria, well-established 
principles in the ADA or WCAG, or circumstances that would not 
affect substantially equivalent access. Many of the approaches that 
commenters proposed are not similarly cabined. Those approaches 
would often allow public entities' mere attempts to achieve 
compliance to substitute for access. The Department declines to 
adopt more flexibility than it already has because it finds that 
doing so would come at too great a cost to accessibility and to the 
clarity of the obligations in subpart H.
    Fourth, several commenters proposed a multi-factor or tiered 
approach to compliance. For example, one commenter suggested a 
three-tiered system where after one failed accessibility test the 
public entity would investigate the problem, after multiple 
instances of nonconformance they would enter into a voluntary 
compliance agreement with the Department, and if there were 
widespread inaccessibility, the Department would issue a finding of 
noncompliance and impose a deadline for remediation. Similarly, 
another commenter proposed that enforcement occur only when two of 
three criteria are met: errors are inherent to the content itself, 
errors are high impact or widely prevalent, and the entity shows no 
evidence of measurable institutional development regarding 
accessibility policy or practice within a designated time frame. The 
Department believes that these and other similar multi-factor 
approaches to compliance would be too complex for public entities to 
understand and for the Department to administer. It would also be 
extremely challenging for the Department to define the parameters 
for such an approach with an appropriate level of precision and a 
sufficiently well-reasoned justification.
    Finally, many commenters proposed approaches to compliance that 
would expand the Department's role. Commenters suggested that the 
Department grant exceptions to the requirements in subpart H of this 
part on a case-by-case basis; specify escalating penalties; conduct 
accessibility audits, testing, or monitoring; provide grant funding; 
develop accessibility advisory councils; provide accessibility 
testing tools; specify acceptable accessibility testing software, 
resources, or methodologies; provide a list of accessibility 
contractors; and provide guidance, technical assistance, or 
training.
    With the exception of guidance and continuing to conduct 
accessibility testing as part of compliance reviews or other 
enforcement activities, the Department is not currently in a 
position to take any of the actions commenters requested. As 
described in this section, the Department has limited enforcement 
resources. It is not able to review requests for exceptions on a 
case-by-case basis, nor is it able to conduct accessibility testing 
or monitoring outside of compliance reviews, settlement agreements, 
or consent decrees. Civil penalties for noncompliance with the ADA 
are set by statute and are not permitted under title II.\256\ Though 
the Department sometimes seeks monetary relief for individuals 
aggrieved under title II in its enforcement actions, the appropriate 
amount of relief is determined on a case-by-case basis and would be

[[Page 31395]]

challenging to establish in a generally applicable rule. The 
Department does not currently operate a grant program to assist 
public entities in complying with the ADA, and, based on the 
availability and allocation of the Department's current resources, 
it does not believe that administering advisory committees would be 
the best use of its resources. The Department also lacks the 
resources and technical expertise to develop and distribute 
accessibility testing software.
---------------------------------------------------------------------------

    \256\ See 42 U.S.C. 12188(b)(2)(C) (allowing civil penalties 
under title III); see also 28 CFR 36.504(a)(3) (updating the civil 
penalty amounts).
---------------------------------------------------------------------------

    The Department will issue a small entity compliance guide \257\ 
and will continue to consider what additional guidance or training 
it can provide that will assist public entities in complying with 
their obligations. However, the Department believes that so long as 
public entities satisfy the requirements of subpart H of this part, 
it is appropriate to allow public entities flexibility to select 
accessibility tools and contractors that meet their individualized 
needs. Any specific list of tools or contractors that the Department 
could provide is unlikely to be helpful given the rapid pace at 
which software and contractor availability changes. Public entities 
may find it useful to consult other publicly available resources 
that can assist in selecting accessibility evaluation tools and 
experts.\258\ Resources for training are also already 
available.\259\ State and local government entities do not need to 
wait for the Department's guidance before consulting with technical 
experts and using resources that already exist.
---------------------------------------------------------------------------

    \257\ See Public Law 104-121, sec. 212, 110 Stat. at 858.
    \258\ See, e.g., W3C, Evaluating Web Accessibility Overview, 
https://www.w3.org/WAI/test-evaluate/ [https://perma.cc/6RDS-X6AR] 
(Aug. 1, 2023).
    \259\ See, e.g., W3C, Digital Accessibility Foundations Free 
Online Course, https://www.w3.org/WAI/courses/foundations-course/ 
[https://perma.cc/KU9L-NU4H] (Oct. 24, 2023).
---------------------------------------------------------------------------

Public Comments on Other Issues in Response to the NPRM

    The Department received comments on a variety of other issues in 
response to the NPRM. The Department responds to the remaining 
issues not already addressed in this section-by-section analysis.

Scope

    The Department received some comments that suggested that the 
Department should take actions outside the scope of the rulemaking 
to improve accessibility for people with disabilities. For example, 
the Department received comments suggesting that the rulemaking 
should: apply to all companies or entities covered under title III 
of the ADA; prohibit public entities from making information or 
communication available only via internet means; revise other 
portions of the title II regulation like subpart B of this part 
(general requirements); require accessibility of all documents 
behind any paywall regardless of whether title II applies; and 
address concerns about how the increased use of web and mobile app 
technologies may affect individuals with electromagnetic 
sensitivity. While the Department recognizes that these are 
important accessibility issues to people with disabilities across 
the country, they are outside of the scope of subpart H of this 
part, which focuses on web and mobile app accessibility under title 
II. Accordingly, these issues are not addressed in detail in subpart 
H.
    The Department also received comments recommending that this 
part cover a broader range of technology in addition to web content 
and mobile apps, including technologies that may be developed in the 
future. The Department declines to broaden this part in this way. 
If, for example, the Department were to broaden the scope of the 
rulemaking to cover an open-ended range of technology, it would 
undermine one of the major goals of the rulemaking, which is to 
adopt a technical standard State and local government entities must 
adhere to and clearly specify which content must comply with that 
standard. In addition, the Department does not currently have 
sufficient information about how technology will develop in the 
future, and how WCAG 2.1 Level AA will (or will not) apply to that 
technology, to enable the Department to broaden the part to cover 
all future technological developments. Also, the Department has a 
long history of engaging with the public and stakeholders about web 
and mobile app accessibility and determined that it was appropriate 
to prioritize regulating in that area. However, State and local 
government entities have existing obligations under title II of the 
ADA with respect to services, programs, and activities offered 
through other types of technology.\260\
---------------------------------------------------------------------------

    \260\ See Sec. Sec.  35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------

    Another commenter suggested that the rulemaking should address 
operating systems. The commenter also suggested clarifying that 
public entities are required to ensure web content and mobile apps 
are accessible, usable, and interoperable with assistive technology. 
The Department understands this commenter to be requesting that the 
Department establish additional technical standards in this part 
beyond WCAG 2.1 Level AA, such as technical standards related to 
software. As discussed in this section and the section-by-section 
analysis of Sec.  35.104, subpart H of this part focuses on web 
content and mobile apps. The Department also clarified in the 
section-by-section analysis of Sec.  35.200 why it believes WCAG 2.1 
Level AA is the appropriate technical standard for subpart H.

Coordination With Other Federal and State Entities

    One commenter asked if the Department has coordinated with State 
governments and other Federal agencies that are working to address 
web and mobile app accessibility to ensure there is consistency with 
other government accessibility requirements. Subpart H of this part 
is being promulgated under part A of title II of the ADA. The 
Department's analysis and equities may differ from State and local 
government entities that may also interpret and enforce other laws 
addressing the rights of people with disabilities. However, through 
the NPRM process, the Department received feedback from the public, 
including public entities, through written comments and listening 
sessions. In addition, the final rule and associated NPRM were 
circulated to other Federal Government agencies as part of the 
Executive Order 12866 review process. In addition, under Executive 
Order 12250, the Department also coordinates with other Federal 
agencies to ensure the consistent and effective implementation of 
section 504 of the Rehabilitation Act, which prohibits 
discrimination on the basis of disability, and to ensure that such 
implementation is consistent with title II of the ADA across the 
Federal Government.\261\ Accordingly, the Department will continue 
to work with other Federal agencies to ensure consistency with its 
interpretations in the final rule, in accordance with Executive 
Order 12250.
---------------------------------------------------------------------------

    \261\ Memorandum for Federal Agency Civil Rights Directors and 
General Counsels, from Kristen Clarke, Assistant Attorney General, 
Civil Rights Division, U.S. Department of Justice, Re: Executive 
Order 12250 Enforcement and Coordination Updates (Jan. 20, 2023), 
https://www.justice.gov/media/1284016/dl?inline [https://perma.cc/AL6Q-QC57]; Memorandum for Federal Agency Civil Rights Directors and 
General Counsels, from John M. Gore, Acting Assistant Attorney 
General, Civil Rights Division, U.S. Department of Justice, Re: 
Coordination of Federal Agencies' Implementation of Title II of the 
Americans with Disabilities Act and Section 504 of the 
Rehabilitation Act, Civil Rights Division, U.S. Department of 
Justice (Apr. 24, 2018), https://www.justice.gov/crt/page/file/1060321/download [https://perma.cc/9Q98-BVU2].
---------------------------------------------------------------------------

Impact on State Law

    Some commenters discussed how this part might impact State law, 
including one comment that asked how a public entity should proceed 
if it is subject to a State law that provides greater protections 
than this part. This part will preempt State laws affecting entities 
subject to title II of the ADA only to the extent that those laws 
provide less protection for the rights of individuals with 
disabilities.\262\ This part does not invalidate or limit the 
remedies, rights, and procedures of any State laws that provide 
greater or equal protection for the rights of individuals with 
disabilities. Moreover, the Department's provision on equivalent 
facilitation at Sec.  35.203 provides that nothing prevents a public 
entity from using designs, methods, or techniques as alternatives to 
those prescribed in subpart H of this part, provided that such 
alternatives result in substantially equivalent or greater 
accessibility and usability. Accordingly, for example, if a State 
law requires public entities in that State to conform to WCAG 2.2, 
nothing in subpart H would prevent a public entity from conforming 
with that standard.
---------------------------------------------------------------------------

    \262\ See 42 U.S.C. 12201.
---------------------------------------------------------------------------

Preexisting Technology

    One public entity said that the Department should permit public 
entities to continue to use certain older technologies, because some 
public entities have systems that were developed several years ago 
with technologies that may not be able to comply with this part. The 
commenter also added that if a public entity is aware of the 
technical difficulties or need for remediation in relation to recent 
maintenance, updates, or repairs, more leniency should be given to 
the

[[Page 31396]]

public entity with respect to the compliance time frame.
    The Department believes it has balanced the need to establish a 
workable standard for public entities with the need to ensure 
accessibility for people with disabilities in many ways, such as by 
establishing delayed compliance dates to give public entities time 
to ensure their technologies can comply with subpart H of this part. 
In addition, subpart H provides some exceptions addressing older 
content, such as the exceptions for archived web content, 
preexisting conventional electronic documents, and preexisting 
social media posts. The Department believes that these exceptions 
will assist covered entities in using their resources more 
efficiently. Also, the Department notes that public entities will be 
able to rely on the fundamental alteration or undue burdens and 
limitations in subpart H where they can satisfy the requirements of 
those provisions. Finally, the Department discussed isolated or 
temporary interruptions in Sec.  35.205 of the section-by-section 
analysis, where it explained its decision not to separately excuse 
an entity's isolated or temporary noncompliance with Sec.  35.200 
due to maintenance or repairs.

Overlays

    Several comments expressed concerns about public entities using 
accessibility overlays and automated checkers.\263\ Subpart H of 
this part sets forth a technical standard for public entities' web 
content and mobile apps. Subpart H does not address the internal 
policies or procedures that public entities might implement to 
conform to the technical standard under subpart H.
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    \263\ See W3C, Overlay Capabilities Inventory: Draft Community 
Group Report (Feb. 12, 2024), https://a11yedge.github.io/capabilities/ [https://perma.cc/2762-VJEV]; see also W3C, Draft Web 
Accessibility Evaluation Tools List, https://www.w3.org/WAI/ER/tools/ [https://perma.cc/Q4ME-Q3VW] (last visited Feb. 12, 2024).
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ADA Coordinator

    At least one commenter suggested that the Department should 
require public entities to hire an ADA Coordinator devoted 
specifically to web accessibility, similar to the requirement in the 
existing title II regulation at Sec.  35.107(a). The Department 
believes it is important for public entities to have flexibility in 
deciding how to internally oversee their compliance with subpart H 
of this part. However, nothing in subpart H would prohibit a public 
entity from appointing an ADA coordinator for web content and mobile 
apps if the public entity believes taking such an action would help 
it comply with subpart H.

    Dated: April 8, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-07758 Filed 4-23-24; 8:45 am]
BILLING CODE 4410-13-P