[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)
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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
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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
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Average annualized costs (millions)..... $3,331.3 $3,515.0
Average annualized benefits (millions).. $5,229.5 $5,029.2
Net benefits (millions)................. $1,898.2 $1,514.2
Cost-to-benefit ratio................... 0.6 0.7
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II. Relationship to Other Laws
The ADA and the Department's implementing regulation state that
except as otherwise provided, the ADA shall not be construed to apply a
lesser standard than title V of the Rehabilitation Act (29 U.S.C. 791)
or its accompanying regulations.\18\ They further state that the ADA
does not invalidate or limit the remedies, rights, and procedures of
any other laws that provide greater or equal protection for the rights
of individuals with disabilities or individuals associated with
them.\19\
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\18\ 42 U.S.C. 12201(a); 28 CFR 35.103(a).
\19\ 42 U.S.C. 12201(b); 28 CFR 35.103(b).
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The Department recognizes that entities subject to title II of the
ADA may also be subject to other statutes that prohibit discrimination
on the basis of disability. Compliance with the Department's title II
regulation does not necessarily ensure compliance with other statutes
and their implementing regulations. Title II entities are also
obligated to fulfill the ADA's title I requirements in their capacity
as employers,\20\ and those requirements are distinct from the
obligations under this rule.
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\20\ 42 U.S.C. 12111-12117.
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Education is another context in which entities have obligations to
comply with other laws imposing affirmative obligations regarding
individuals with disabilities. The Department of Education's
regulations implementing the Individuals with Disabilities Education
Act (``IDEA'') and section 504 of the Rehabilitation Act include
longstanding, affirmative obligations for covered schools to identify
children with disabilities, and both require covered schools to provide
a free appropriate public education.\21\ This final rule builds on, and
does not supplant, those preexisting requirements. A public entity must
continue to meet all of its existing obligations under other laws.
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\21\ See 20 U.S.C. 1412; 29 U.S.C. 794; 34 CFR 104.32 through
104.33.
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III. Background
A. ADA Statutory and Regulatory History
The ADA broadly protects the rights of individuals with
disabilities in important areas of everyday life, such as in employment
(title I), State and local government entities' services, programs, and
activities (title II, part A), transportation (title II, part B), and
places of public accommodation (title III). The ADA requires newly
designed and constructed or altered State and local government
entities' facilities, public accommodations, and commercial facilities
to be readily accessible to and usable by individuals with
disabilities.\22\ Section 204(a) of title II and section 306(b) of
title III of the ADA direct the Attorney General to promulgate
regulations to carry out the provisions of titles II and III, other
than certain provisions dealing specifically with transportation.\23\
Title II, part A, applies to State and local government entities and
protects qualified individuals with disabilities from discrimination on
the basis of disability in services, programs, and activities of State
and local government entities.
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\22\ 42 U.S.C. 12101 et seq.
\23\ 42 U.S.C. 12134(a), 12186(b).
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On July 26, 1991, the Department issued its final rules
implementing title II and title III, which are codified at 28 CFR part
35 (title II) and part 36 (title III),\24\ and include the ADA
Standards for Accessible Design (``ADA Standards'').\25\ At that time,
the web was in its infancy--and mobile apps did not exist--so State and
local government entities did not use either the web or mobile apps as
a means of providing services to the public. Thus, web content and
mobile apps were not mentioned in the Department's title II regulation.
Only a few years later, however, as web content of general interest
became available, public entities began using web content to provide
information to the public. Public entities and members of the public
also now rely on mobile apps for critical government services.
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\24\ Title III prohibits discrimination on the basis of
disability in the full and equal enjoyment of places of public
accommodation (privately operated entities whose operations affect
commerce and fall within at least one of 12 categories listed in the
ADA, such as restaurants, movie theaters, schools, day care
facilities, recreational facilities, and doctors' offices) and
requires newly constructed or altered places of public
accommodation--as well as commercial facilities (facilities intended
for nonresidential use by a private entity and whose operations
affect commerce, such as factories, warehouses, and office
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-12189.
\25\ See 28 CFR 35.104, 36.104.
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B. History of the Department's Title II Web-Related Interpretation and
Guidance
The Department first articulated its interpretation that the ADA
applies to websites of covered entities in 1996.\26\ Under title II,
this includes ensuring that individuals with disabilities are
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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\
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\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.
---------------------------------------------------------------------------
\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].
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The Department's 2003 guidance on State and local government
entities' websites noted that ``an agency with an inaccessible website
may also meet its legal obligations by providing an alternative
accessible way for citizens to use the programs or services, such as a
staffed telephone information line,'' while also acknowledging that
this is unlikely to provide an equal degree of access.\31\ The
Department's March 2022 guidance did not include 24/7 staffed telephone
lines as an alternative to accessible websites. Given the way the
modern web has developed, the Department no longer believes 24/7
staffed telephone lines can realistically provide equal opportunity to
individuals with disabilities. Websites--and often mobile apps--allow
members of the public to get information or request a service within
just a few minutes, and often to do so independently. Getting the same
information or requesting the same service using a staffed telephone
line takes more steps and may result in wait times or difficulty
getting the information.
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\31\ U.S. Dep't of Just., Accessibility of State and Local
Government websites to People with Disabilities, 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\
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\47\ See, e.g., John B. Horrigan & Lee Rainie, Pew Research
Ctr., Connecting with Government or Government Data (Apr. 21, 2015),
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].
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Many public entities use online resources to promote access to
public benefits. People can use websites of public entities to file for
unemployment or other benefits and find and apply for job openings.
Applications for many Federal benefits, such as unemployment benefits
and food stamps, are also available through State websites. Through the
websites of State and local government entities, business owners can
register their businesses, apply for occupational and professional
licenses, bid on contracts to provide products and services to public
entities, and obtain information about laws and regulations with which
they must comply. The websites of many State and local government
entities also allow members of the public to research and verify
business licenses online and report unsavory business practices.
People also rely on public entities' websites to engage in civic
participation. People can frequently watch local public hearings, find
schedules for community meetings, or take part in live chats with
government officials on the websites of State and local government
entities. Many public entities allow voters to begin the voter
registration process and obtain candidate information on their
websites. Individuals interested in running for local public offices
can often find pertinent information concerning candidate
qualifications and filing requirements on these websites as well. The
websites of public entities also include information about a range of
issues of concern to the community and about how people can get
involved in community efforts to improve the administration of
government services.
Public entities are also using websites as an integral part of
public education.\49\ Public schools at all levels, including public
colleges and universities, offer programs, reading material, and
classroom instruction through websites. Most public colleges and
universities rely heavily on websites and other online technologies in
the application process for prospective students; for housing
eligibility and on-campus living assignments; for course registration
and assignments; and for a wide variety of administrative and
logistical functions in which students must participate. Similarly, in
many public elementary and secondary school settings, teachers and
administrators communicate via the web to parents and students about
grades, assignments, and administrative matters.
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\49\ See, e.g., Consent Decree, United States v. The Regents of
the Univ. of Cal. (Nov. 20, 2022), 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].
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While important for everyone during the pandemic, access to web-
based services took on heightened importance for people with
disabilities, many of whom face a greater risk of COVID-19 exposure,
serious illness, and death.\53\ A report by the National Council on
Disability indicated that COVID-19 has had a disproportionately
negative impact on the ability of people with disabilities to access
healthcare, education, and employment, among other areas, making remote
access to these opportunities via the web even more important.\54\ The
Department believes that although many public health measures
addressing the COVID-19 pandemic are no longer in place, there have
been durable changes to State and local government entities' operations
and public preferences that necessitate greater access to online
services, programs, and activities.
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\53\ According to the CDC, some people with disabilities ``might
be more likely to get infected or have severe illness because of
underlying medical conditions, congregate living settings, or
systemic health and social inequities. All people with serious
underlying chronic medical conditions like chronic lung disease, a
serious heart condition, or a weakened immune system seem to be more
likely to get severely ill from COVID-19.'' See Ctrs. for Disease
Control and Prevention, People with Disabilities, 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].
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As discussed at greater length below, many public entities' web
content is not fully accessible, which often means that individuals
with disabilities are denied equal access to important services,
programs, or activities.
2. Use of Mobile Applications by Title II Entities
This rule also covers mobile apps because public entities often use
mobile apps to offer their services, programs, or activities to the
public. Mobile apps are software applications that are downloaded and
designed to run on mobile devices, such as smartphones and tablets.\55\
Many public entities use
[[Page 31327]]
mobile apps to provide services and reach the public in various ways,
including the purposes for which public entities use websites, in
addition to others. For example, as with websites, residents can often
use mobile apps provided or made available by public entities to submit
service requests, such as requests to clean graffiti or repair a
street-light outage, and track the status of these requests. Public
entities' apps often take advantage of common features of mobile
devices, such as camera and Global Positioning System (``GPS'')
functions,\56\ so individuals can provide public entities with a
precise description and location of issues. These may include issues
such as potholes,\57\ physical barriers created by illegal dumping or
parking, or curb ramps that need to be fixed to ensure accessibility
for some people with disabilities. Some public transit authorities have
transit apps that use a mobile device's GPS function to provide bus
riders with the location of nearby bus stops and real-time arrival and
departure times.\58\ In addition, public entities are also using mobile
apps to assist with emergency planning for natural disasters like
wildfires; provide information about local schools; and promote
tourism, civic culture, and community initiatives.\59\ During the
COVID-19 pandemic, when many State and local government entities'
offices were closed, public entities used mobile apps to inform people
about benefits and resources, to provide updates about the pandemic,
and as a means to show proof of vaccination status, among other
things.\60\
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\55\ Mobile apps are distinct from a website that can be
accessed by a mobile device because, in part, mobile apps are not
directly accessible on the web; they are often downloaded on a
mobile device. Mona Bushnell, What Is the Difference Between an App
and a Mobile website?, Bus. News Daily, 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).
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Individuals who are blind or have low vision often confront
significant barriers to accessing websites and mobile apps. For
example, a study from the University of Washington analyzed
approximately 10,000 mobile apps and found that many are highly
inaccessible to individuals with disabilities.\63\ The study found that
23 percent of the mobile apps reviewed did not provide content
descriptions of images for most of their image-based buttons.\64\ As a
result, the functionality of those buttons is not accessible for people
who use screen readers.\65\ Additionally, other mobile apps may be
inaccessible if they do not allow text resizing, which can provide
larger text for people with vision disabilities.\66\
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\63\ See Large-Scale Analysis Finds Many Mobile Apps Are
Inaccessible, Univ. of Washington CREATE (Mar. 1, 2021), 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].
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Furthermore, many websites and mobile apps provide information
visually, without features that allow screen readers or other assistive
technology to retrieve the information so it can be presented in an
accessible manner. A common barrier to accessibility is an image or
photograph without corresponding text (``alternative text'' or ``alt
text'') describing the image. Generally, a screen reader or similar
assistive technology cannot ``read'' an image, leaving individuals who
are blind with no way of independently knowing what information the
image conveys (e.g., a simple icon or a detailed graph). Similarly, if
websites lack headings that facilitate navigation using assistive
technology, they may be difficult or impossible for someone using
assistive technology to navigate.\67\ Additionally, websites or mobile
apps may fail to present tables in a way that allows the information in
the table to be interpreted by someone who is using assistive
technology.\68\ Web-based forms, which are an essential part of
accessing government services, are often inaccessible to individuals
with disabilities who use assistive technology. For example, field
elements on forms, which are the empty boxes on forms that receive
input for specific pieces of information, such as a last name or
telephone number, may lack clear labels that can be read by assistive
technology. Inaccessible form fields make it difficult for people using
assistive technology to fill out online forms, pay fees and fines, or
otherwise participate in government services, programs, or activities
using a website. Some governmental entities use inaccessible third-
party websites and mobile apps to accept online payments, while others
request public input through their own inaccessible websites and mobile
apps. As commenters have emphasized, these barriers greatly impede the
ability of individuals with
[[Page 31328]]
disabilities to access the services, programs, or activities offered by
public entities via the web and mobile apps.
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\67\ See, e.g., W3C, WCAG 2.1 Understanding Docs: Understanding
SC 1.3.1: Info and Relationships (Level A), 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).
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In many instances, removing certain web content and mobile app
accessibility barriers is neither difficult nor especially costly. For
example, the addition of invisible attributes known as alt text or alt
tags to an image helps orient an individual using a screen reader and
allows them to gain access to the information on the website.\69\ Alt
text can be added to the coding of a website without any specialized
equipment.\70\ Similarly, adding headings, which facilitate page
navigation for those using screen readers, can often be done easily as
well.\71\
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\69\ W3C, Images Tutorial, 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).
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Public comments on the NPRM described the lack of independence, and
the resulting lack of privacy, that can stem from accessibility
barriers. These commenters noted that without full and equal access to
digital spaces, individuals with disabilities must constantly rely on
support from others to perform tasks they could complete themselves if
the online infrastructure enabled accessibility. Commenters noted that
when using public entities' inaccessible web content or mobile apps for
interactions that involve confidential information, individuals with
disabilities must forfeit privacy and independence to seek assistance.
Commenters pointed out that constantly needing assistance from others
not only impacts self-confidence and perceptions of self-worth, but
also imposes a costly and burdensome ``time tax'' because it means that
individuals with disabilities must spend more time and effort to gain
access than individuals without disabilities.
Commenters also pointed out that accessible digital spaces benefit
everyone. Just as the existence of curb cuts benefits people in many
different scenarios--such as those using wheelchairs, pushing
strollers, and using a trolley to deliver goods--accessible web content
and mobile apps are generally more user friendly. For example,
captioning is often used by individuals viewing videos in quiet public
spaces and sufficient color contrast makes it generally easier to read
text.
4. Inadequacy of Voluntary Compliance With Technical Standards
The web has changed significantly, and its use has become far more
prevalent, since Congress enacted the ADA in 1990 and since the
Department subsequently promulgated its first ADA regulations. Neither
the ADA nor the Department's regulations specifically addressed public
entities' use of web content and mobile apps to provide their services,
programs, or activities. Congress contemplated, however, that the
Department would apply title II, part A of the statute in a manner that
would adjust over time with changing circumstances and Congress
delegated authority to the Attorney General to promulgate regulations
to carry out the ADA's mandate under title II, part A.\72\ Consistent
with this approach, the Department stated in the preamble to the
original 1991 ADA regulations that the regulations should be
interpreted to keep pace with developing technologies.\73\
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\72\ See H.R. Rep. No. 101-485, pt. 2, at 108 (1990); 42 U.S.C.
12134(a).
\73\ Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities, 56 FR 35544, 35566
(July 26, 1991); see 28 CFR part 36, appendix B.
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Since 1996, the Department has consistently taken the position that
the ADA applies to the web content of State and local government
entities. This interpretation comes from title II's application to
``all services, programs, and activities provided or made available by
public entities.'' \74\ The Department has affirmed the application of
the statute to websites in multiple technical assistance documents over
the past two decades.\75\ Further, the Department has repeatedly
enforced this obligation and worked with State and local government
entities to make their websites accessible, such as through Project
Civic Access, an initiative to promote local governments' compliance
with the ADA by eliminating physical and communication barriers
impeding full participation by people with disabilities in community
life.\76\ As State and local government entities have increasingly
turned to mobile apps to offer services, programs, or activities, the
Department has enforced those entities' title II obligations in that
context as well.\77\ A variety of voluntary standards and structures
have been developed for the web through nonprofit organizations using
multinational collaborative efforts. For example, domain names are
issued and administered through the Internet Corporation for Assigned
Names and Numbers, the Internet Society publishes computer security
policies and procedures for websites, and the World Wide Web Consortium
(``W3C'') develops a variety of technical standards and guidelines
ranging from issues related to mobile devices and privacy to
internationalization of technology. In the area of accessibility, the
Web Accessibility Initiative (``WAI'') of W3C created the WCAG.
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\74\ See 28 CFR 35.102.
\75\ U.S. Dep't of Just., Accessibility of State and Local
Government websites to People with Disabilities, 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].
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Many organizations, however, have indicated that voluntary
compliance with these accessibility guidelines has not resulted in
equal access for individuals with disabilities; accordingly, they have
urged the Department to take regulatory action to ensure web content
and mobile app accessibility.\78\ The National Council on Disability,
an independent Federal agency that advises the President, Congress, and
other agencies about programs, policies, practices, and procedures
affecting people with disabilities, has similarly emphasized the need
for regulatory action on this issue.\79\ The Department has also heard
[[Page 31329]]
from State and local government entities and businesses asking for
clarity on the ADA's requirements for websites through regulatory
efforts.\80\ Public commenters responding to the NPRM have also
emphasized the need for regulatory action on this issue to ensure that
public entities' services, programs, and activities offered via the web
and mobile apps are accessible, and have expressed that this rule is
long overdue.
---------------------------------------------------------------------------
\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].
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In light of the long regulatory history and the ADA's current
general requirement to make all services, programs, and activities
accessible, the Department expects that public entities have made
strides to make their web content and mobile apps accessible since the
2010 ANPRM was published. Such strides have been supported by the
availability of voluntary web content and mobile app accessibility
standards, as well as by the Department's clearly stated position--
supported by judicial decisions \81\--that all services, programs, and
activities of public entities, including those available on websites,
must be accessible. Still, as discussed above, individuals with
disabilities continue to struggle to obtain access to the web content
and mobile apps of public entities. Many public comments on the NPRM
shared anecdotes of instances where individuals were unable to access
government services, programs, or activities offered via the web and
mobile apps, or had to overcome significant barriers to be able to do
so, in spite of public entities' existing obligations under title II.
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\81\ See, e.g., Meyer v. Walthall, 528 F. Supp. 3d 928, 959
(S.D. Ind. 2021) (``[T]he Court finds that Defendants' websites
constitute services or activities within the purview of Title II and
section 504, requiring Defendants to provide effective access to
qualified individuals with a disability.''); Price v. City of Ocala,
Fla., 375 F. Supp. 3d 1264, 1271 (M.D. Fla. 2019) (``Title II
undoubtedly applies to websites.''); Payan v. Los Angeles Cmty.
Coll. Dist., No. 2:17-CV-01697-SVW-SK, 2019 WL 9047062, at *12 (C.D.
Cal. Apr. 23, 2019) (``[T]he ability to sign up for classes on the
website and to view important enrollment information is itself a
`service' warranting protection under Title II and Section 504.'');
Eason v. New York State Bd. of Elections, No. 16-CV-4292 (KBF), 2017
WL 6514837, at *1 (S.D.N.Y. Dec. 20, 2017) (stating, in a case
involving a State's website, that ``Section 504 of the
Rehabilitation Act and Title II of the Americans with Disabilities
Act . . . long ago provided that the disabled are entitled to
meaningful access to a public entity's programs and services. Just
as buildings have architecture that can prevent meaningful access,
so too can software.''); Hindel v. Husted, No. 2:15-CV-3061, 2017 WL
432839, at *5 (S.D. Ohio Feb. 1, 2017) (``The Court finds that
Plaintiffs have sufficiently established that Secretary Husted's
website violates Title II of the ADA because it is not formatted in
a way that is accessible to all individuals, especially blind
individuals like the Individual Plaintiffs whose screen access
software cannot be used on the website.'').
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The Department has brought enforcement actions to address web
content and mobile app access, resulting in a significant number of
settlement agreements with State and local government entities.\82\
Other Federal agencies have also taken enforcement action against
public entities regarding the lack of website access for individuals
with disabilities. In December 2017, for example, the U.S. Department
of Education entered into a resolution agreement with the Alaska
Department of Education and Early Development after it found that the
public entity had violated Federal statutes, including title II of the
ADA, by denying individuals with disabilities an equal opportunity to
participate in the public entity's services, programs, or activities
due to website inaccessibility.\83\ As another example, the U.S.
Department of Housing and Urban Development took action against the
City of Los Angeles, and its subrecipient housing providers, to ensure
that it maintained an accessible website concerning housing
opportunities.\84\
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\82\ See, e.g., Settlement Agreement Between the United States
of America and the Champaign-Urbana Mass Transit District (Dec. 14,
2021), 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].
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The Department believes, and public comments on the NPRM have
reinforced, that adopting technical standards for web content and
mobile app accessibility provides clarity to public entities regarding
how to make accessible the services, programs, and activities that they
offer via the web and mobile apps. Commenters have specifically
indicated that unambiguous, consistent, and comprehensive standards
will help resolve existing confusion around the technical requirements
for accessibility on public entities' web content and mobile apps.
Adopting specific technical standards for web content and mobile app
accessibility also helps to provide individuals with disabilities with
consistent and predictable access to the web content and mobile apps of
public entities.
IV. Regulatory Process Matters
The Department has examined the likely economic and other effects
of this final rule addressing the accessibility of web content and
mobile apps, as required under applicable Executive Orders,\85\ Federal
administrative statutes (e.g., the Regulatory Flexibility Act,\86\
Paperwork Reduction Act,\87\ and Unfunded Mandates Reform Act \88\),
and other regulatory guidance.\89\
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\85\ See E.O. 14094, 88 FR 21879 (Apr. 6, 2023); E.O. 13563, 76
FR 3821 (Jan. 18, 2011); E.O. 13272, 67 FR 53461 (Aug. 13, 2002);
E.O. 13132, 64 FR 43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735
(Sept. 30, 1993).
\86\ Regulatory Flexibility Act of 1980 (``RFA''), as amended by
the Small Bus. Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
601 et seq.
\87\ Paperwork Reduction Act (``PRA''), 44 U.S.C. 3501 et seq.
\88\ Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.
\89\ See Office of Mgmt. and Budget, Circular A-4 (Sept. 17,
2003) (superseded by Office of Mgmt. and Budget, Circular A-4 (of
Nov. 9, 2023)).
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As discussed previously, the purpose of this rule is to revise the
regulation implementing title II of the ADA in order to ensure that the
services, programs, and activities offered by State and local
government entities to the public via web content and mobile apps are
accessible to individuals with disabilities. The Department is adopting
specific technical standards related to the accessibility of the web
content and mobile apps of State and local government entities and is
specifying
[[Page 31330]]
dates by which such web content and mobile apps must meet those
standards. This rule is necessary to help public entities understand
how to ensure that individuals with disabilities will have equal access
to the services, programs, and activities that public entities provide
or make available through their web content and mobile apps.
The Department has carefully crafted this final rule to better
ensure the protections of title II of the ADA, while at the same time
doing so in an economically efficient manner. After reviewing the
Department's assessment of the likely costs of this regulation, the
Office of Management and Budget (``OMB'') has determined that it is a
significant regulatory action within the meaning of Executive Order
12866, as amended. As such, the Department has undertaken a FRIA
pursuant to Executive Order 12866. The Department has also undertaken a
FRFA as specified in section 604(a) of the Regulatory Flexibility Act.
The results of both of these analyses are summarized below. Lastly, the
Department does not believe that this regulation will have any
significant impact relevant to the Paperwork Reduction Act, the
Unfunded Mandates Reform Act, or the federalism principles outlined in
Executive Order 13132.
A. Final Regulatory Impact Analysis Summary
The Department has prepared a FRIA for this rulemaking. This
rulemaking also contains a FRFA. The Department contracted with Eastern
Research Group Inc. (``ERG'') to prepare this economic assessment. This
summary provides an overview of the Department's economic analysis and
key findings in the FRIA. The full FRIA will be made available at
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.
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\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.
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The Department monetized benefits for both people with these
disabilities and people without disabilities.\91\ There are many
additional benefits that have not been monetized due to lack of data
availability. Benefits that cannot be monetized are discussed
qualitatively. These non-quantified benefits are central to this rule's
potential impact as they include concepts inherent to any civil rights
law--such as equality and dignity. Other impacts to individuals include
increased independence, increased flexibility, increased privacy,
reduced frustration, decreased reliance on companions, and increased
program participation. This rule will also benefit State and local
government entities through increased certainty about what constitutes
an accessible website, a potential reduction in litigation, and a
larger labor market pool (due to increased educational attainment and
access to job training).
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\91\ Throughout the Department's FRIA, the Department uses the
phrases ``individuals without a relevant disability'' or
``individuals without disabilities'' to refer to individuals without
vision, hearing, cognitive, or manual dexterity disabilities. These
individuals may have other types of disabilities, or they may be
individuals without any disabilities at all.
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Annual and annualized monetized benefits of this rule are presented
in Table 9, Table 10, and Table 11. Annual benefits, beginning once the
rule is fully implemented, total $5.3 billion. Because individuals
generally prefer benefits received sooner, future benefits need to be
discounted to reflect the lower value due to the wait to receive them.
OMB guidance states that annualized benefits and costs should be
presented using real discount rates of 3 percent and 7 percent.\92\
Benefits annualized over a 10-year period that includes both three
years of implementation and seven years post-implementation total $5.2
billion per year, assuming a 3 percent discount rate, and $5.0 billion
per year, assuming a 7 percent discount rate.
---------------------------------------------------------------------------
\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].
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Comparing annualized costs and benefits, monetized benefits to
society outweigh the costs. Net annualized benefits over the first 10
years post publication of this rule total $1.9 billion per year using a
3 percent discount rate and $1.5 billion per year using a 7 percent
discount rate (Table 12). Additionally, beyond this 10-year period,
benefits are likely to continue to accrue at a greater rate than costs
because many of the costs are upfront costs and the benefits tend to
have a delay before beginning to accrue.
To consider the relative magnitude of the estimated costs of this
regulation, the Department compares the costs to revenues for public
entities. Because
[[Page 31331]]
calculating this ratio for every public entity would be impractical,
the Department used the estimated average annualized cost compared to
the average annual revenue by each government entity type. The costs
for each government entity type and size are generally estimated to be
below 1 percent of revenues (the one exception is small independent
community colleges, for which the cost-to-revenue ratio is 1.05 percent
and 1.10 percent using a 3 percent discount rate and a 7 percent
discount rate, respectively),\93\ so the Department does not believe
the rule will be unduly burdensome or costly for public entities.\94\
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\93\ However, the Department notes that revenue for small
independent community colleges was estimated using the 2012 Census
of Governments, so revenue for small independent community colleges
would likely be underestimated if small independent community
colleges had a greater share of total local government revenue in
2022 than in 2012. If this were true, the Department expects that
the cost-to-revenue ratio for small independent community colleges
would be lower.
\94\ As a point of reference, the United States Small Business
Administration advises agencies that a potential indicator that the
impact of a regulation may be ``significant'' is whether the costs
exceed 1 percent of the gross revenues of the entities in a
particular sector, although the threshold may vary based on the
particular types of entities at issue. See U.S. Small Bus. Admin., A
Guide for Government Agencies: How To Comply with the Regulatory
Flexibility Act, at 19 (Aug. 2017), 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'').
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The Department received some comments on the proposed rule's
estimated costs and benefits. These comments are discussed throughout
the FRIA. One methodological change was made from the analysis
performed for the NPRM on the timing of compliance for making password-
protected course content accessible by public educational entities,
which is discussed further in the FRIA. However, the numbers in the
FRIA also differ from the proposed rule because data have been updated
to reflect the most recently available data and because monetary values
are now reported in 2022 dollars (whereas the analysis performed for
the NPRM presented values in 2021 dollars).
Table 3--Initial Familiarization, Testing, and Remediation Costs
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.02 $1.00 $6.42 $5.35 $12.7 $4.03 $0.00 $0.62 $30.1
Websites........................ 253.0 819.9 2,606.6 1,480.7 408.5 2,014.0 7.1 1,417.4 9,007.3
Mobile apps..................... 14.7 56.8 100.0 1.4 0.0 406.3 1.3 68.9 649.2
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 5,508.5 5,508.5
Primary and secondary course N/A 50.8 19.8 42.8 N/A 1,134.1 N/A N/A 1,247.5
remediation....................
Third-party website remediation. 7.2 39.4 147.2 85.5 19.6 113.8 0.0 93.6 506.4
-----------------------------------------------------------------------------------------------------------------------
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.
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\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.
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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.
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\24\ 88 FR 52018.
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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.
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\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).
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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\
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\26\ See Sec. 35.130(b)(1) and (3).
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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.
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\27\ 88 FR 51957.
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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\
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\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).
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The first version of WCAG, WCAG 1.0, was published in 1999. WCAG
2.0 was published in December 2008, and is available at http://www.w3.org/TR/2008/REC-WCAG20-20081211/ [https://perma.cc/L2NH-VLCR]. WCAG 2.0 was approved as an international standard by the
International Organization for Standardization (``ISO'') and the
International Electrotechnical Commission (``IEC'') in October
2012.\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\
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\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.
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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).
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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).
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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\
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\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.
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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\
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\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).
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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.
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\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).
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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\
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\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].
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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.
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\49\ See, e.g., W3C, Tutorials, https://www.w3.org/WAI/tutorials/ [https://perma.cc/SW5E-WWXV] (Feb. 16, 2023).
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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.
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\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].
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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.
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\104\ 88 FR 51953.
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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.
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\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).
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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.
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\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.
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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.
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\110\ Section 35.151.
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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.
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\111\ 88 FR 51958, 51962-51963, 51965-51966.
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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.
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\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).
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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.
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\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).
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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.
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\115\ 88 FR 51965-51966.
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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.
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\116\ 88 FR 51965-51966.
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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.
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\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\
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\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.
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\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.
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\129\ Id.
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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\
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\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].
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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.
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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\
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\132\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160.
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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.
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\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.
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[[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.
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\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.
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\174\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160.
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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\
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\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.
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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.
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\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.
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\184\ 88 FR 51962-51963.
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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\
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\185\ Sections 35.130(b)(1)(ii) and (b)(7) and 35.160.
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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.
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\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\
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\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\
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\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.
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\211\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160.
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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.
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\214\ 28 CFR part 35, appendix B, at 708 (2022).
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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.
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\224\ Id.
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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.
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\229\ 42 U.S.C. 12101(a)(7).
\230\ See Sec. 35.130(b)(1)(ii) and (iii).
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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\
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\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.
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\247\ 88 FR 51980-51981.
\248\ See Public Law 104-121, sec. 212, 110 Stat. at 858.
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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.
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\249\ 1 Tex. Admin. Code secs. 206.50, 213.21 (West 2023).
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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.
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\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.
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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.
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\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.
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\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).
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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.
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\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).
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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.
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\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).
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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\
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\260\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160.
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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.
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\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.
---------------------------------------------------------------------------
\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