Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities, 28657-28686 [2016-10464]

Agencies

• Department of Justice

[Federal Register Volume 81, Number 89 (Monday, May 9, 2016)]
[Proposed Rules]
[Pages 28657-28686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10464]



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Vol. 81

Monday,

No. 89

May 9, 2016

Part IV





Department of Justice





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28 CFR Part 35





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

Federal Register / Vol. 81 , No. 89 / Monday, May 9, 2016 / Proposed 
Rules

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DEPARTMENT OF JUSTICE

28 CFR Part 35

[CRT Docket No. 128]
RIN 1190-AA65


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: Supplemental advance notice of proposed rulemaking.

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SUMMARY: The Department of Justice (Department) is considering revising 
the regulation implementing title II of the Americans with Disabilities 
Act (ADA or Act) in order to establish specific technical requirements 
to make accessible the services, programs, or activities State and 
local governments offer to the public via the Web. In 2010, the 
Department issued an Advance Notice of Proposed Rulemaking (2010 ANPRM) 
titled Nondiscrimination on the Basis of Disability; Accessibility of 
Web Information and Services of State and Local Government Entities and 
Public Accommodations. The purpose of this Supplemental Advance Notice 
of Proposed Rulemaking (SANPRM) is to solicit additional public comment 
specifically regarding the regulation implementing title II, which 
applies to State and local government entities. Specifically, the 
Department is issuing this SANPRM in order to solicit public comment on 
various issues relating to the potential application of such technical 
requirements to the Web sites of title II entities and to obtain 
information for preparing a regulatory impact analysis.

DATES: The Department invites written comments from members of the 
public. Written comments must be postmarked and electronic comments 
must be submitted on or before August 8, 2016.

ADDRESSES: You may submit comments, identified by RIN 1190-AA65 (or 
Docket ID No. 128), by any one of the following methods:
     Federal eRulemaking Web site: www.regulations.gov. Follow 
the Web site's instructions for submitting comments.
     Regular U.S. mail: Disability Rights Section, Civil Rights 
Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-
0885.
     Overnight, courier, or hand delivery: Disability Rights 
Section, Civil Rights Division, U.S. Department of Justice, 1425 New 
York Avenue NW., Suite 4039, Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Rebecca 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 (800) 514-0383 (TTY). You may obtain 
copies of this Supplemental Advance Notice of Proposed Rulemaking 
(SANPRM) in an alternative format by calling the ADA Information Line 
at (800) 514-0301 (voice) or (800) 514-0383 (TTY). This SANPRM is also 
available on the ADA Web site at www.ada.gov.
    Electronic Submission of Comments and Posting of Public Comments: 
You may submit electronic comments to www.regulations.gov. When 
submitting comments electronically, you must include CRT Docket No. 128 
in the subject box, and you must include your full name and address. 
Electronic files should avoid the use of special characters or any form 
of encryption and should be free of any defects or viruses.
    Please note that all comments received are considered part of the 
public record and will be made available for public inspection online 
at www.regulations.gov. Posting of submission will include any personal 
identifying information (such as your name and address) included in the 
text of your comment. If you include personal identifying information 
in the text of your comment but do not want it to be posted online, you 
must include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the 
first paragraph of your comment. You must also include all the personal 
identifying information you want redacted along with this phrase. 
Similarly, if you submit confidential business information as part of 
your comment but do not want it posted online, you must include the 
phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of 
your comment. You must also prominently identify confidential business 
information to be redacted within the comment. If a comment has so much 
confidential business information that it cannot be effectively 
redacted, all or part of that comment may not be posted on 
www.regulations.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. Statutory History

    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. The ADA broadly protects the rights of individuals 
with disabilities as to employment, access to State and local 
government services, places of public accommodation, transportation, 
and other important areas of American life. The ADA also requires newly 
designed and constructed or altered State and local government 
facilities, public accommodations, and commercial facilities to be 
readily accessible to and usable by individuals with disabilities. 42 
U.S.C. 12101 et seq. Section 204(a) of title II and section 306(b) of 
title III direct the Attorney General to promulgate regulations to 
carry out those titles, other than certain provisions dealing 
specifically with transportation. 42 U.S.C. 12134; 42 U.S.C. 12186(b).
    Title II applies to State and local government entities, and, in 
subtitle A, protects qualified individuals with disabilities from 
discrimination on the basis of disability in services, programs, and 
activities provided by State and local government entities. Title II 
extends the prohibition on discrimination established by section 504 of 
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 
504), to all activities of State and local governments regardless of 
whether these entities receive Federal financial assistance. 42 U.S.C. 
12131-65.
    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 that 
fall into 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 (privately 
owned, nonresidential facilities, such as factories, warehouses, or 
office buildings)--to comply with the ADA Standards for Accessible 
Design (ADA Standards). 42 U.S.C. 12181-89.

B. Rulemaking History

    On July 26, 1991, the Department issued its final rules 
implementing title II and title III, codified at 28 CFR part 35 (title 
II) and part 36 (title III), which included the ADA Standards. At that 
time, the Web was in its infancy and was not used by State and local 
governments as a means of providing services or information to the 
public and thus was not mentioned in the Department's title II 
regulation.

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    In June 2003, in recognition of how the Internet was transforming 
interactions between the public and governmental entities, the 
Department published a document entitled Accessibility of State and 
Local Government Web sites to People with Disabilities, available at 
https://www.usdoj.gov/crt/ada/Web sites2.htm, which provides State and 
local governments guidance on how to make their Web sites accessible to 
ensure that persons with disabilities have equal access to the 
services, programs, and activities that are provided through those Web 
sites. This guidance recognizes that, increasingly, State and local 
governments are using their Web sites to allow services, programs, and 
activities to be offered in a more dynamic and interconnected way, 
which serves to do all of the following: increase citizen 
participation; increase convenience and speed in obtaining information 
or services; reduce costs in providing programs and information about 
government services; reduce the amount of paperwork; and expand the 
possibilities of reaching new sectors of the community or offering new 
programs. The guidance also provides that State and local governments 
might be able to meet their title II obligations by providing an 
alternative accessible means of obtaining the Web site's information 
and services (e.g., a staffed telephone line). However, that guidance 
makes clear that alternative means would be ``unlikely to provide an 
equal degree of access in terms of hours of operation and the range of 
options and programs available.'' Accessibility of State and Local 
Government Web sites to People with Disabilities, available at https://
www.usdoj.gov/crt/ada/web sites2.htm. This is even more true today, 
almost 13 years later, when the amount of information and complexity of 
Web sites has increased exponentially.
    On September 30, 2004, the Department published an Advance Notice 
of Proposed Rulemaking (2004 ANPRM) to begin the process of updating 
the 1991 regulations to adopt revised ADA Standards based on the 
relevant parts of the ADA and Architectural Barriers Act Accessibility 
Guidelines (2004 ADA/ABA Guidelines). 69 FR 58768 (Sept. 30, 2004). On 
June 17, 2008, the Department issued a Notice of Proposed Rulemaking 
(2008 NPRM) to adopt the revised 2004 ADA/ABA Guidelines and revise the 
title II and title III regulations. 73 FR 34466 (June 17, 2008). The 
2008 NPRM addressed the issues raised in the public's comments to the 
2004 ANPRM and sought additional comment.
    The Department did not propose to include Web accessibility 
provisions in the 2004 ANPRM or the 2008 NPRM, but the Department 
received numerous comments urging the Department to issue Web 
accessibility regulations under the ADA. Although the final title II 
rule, published on September 15, 2010, did not include specific 
requirements for Web accessibility, the guidance accompanying the final 
title II rule responded to these comments. See 28 CFR part 35, app. A, 
75 FR 56163, 56236 (Sept. 15, 2010). In that guidance, the Department 
stated that since the ADA's enactment in 1990, the Internet had emerged 
as a critical means to provide access to public entities' programs and 
activities. Id. at 56236. The Department reiterated its position that 
title II covers public entities' Web sites and noted that it has 
enforced the ADA in this area on a case-by-case basis and that it 
intended to engage in future rulemaking on this topic. Id. The 
Department stated that public entities must ensure equal access to Web-
based programs and activities for individuals with disabilities unless 
doing so would result in an undue financial and administrative burden 
or fundamental alteration. Id.
    On July 26, 2010, the Department published an ANPRM titled 
Nondiscrimination on the Basis of Disability; Accessibility of Web 
Information and Services of State and Local Government Entities and 
Public Accommodations. 75 FR 43460 (July 26, 2010). The 2010 ANPRM 
announced that the Department was considering revising the regulations 
implementing titles II and III of the ADA to establish specific 
requirements for State and local governments and public accommodations 
to make their Web sites accessible to individuals with disabilities. In 
the 2010 ANPRM, the Department sought information regarding what 
standards, if any, it should adopt for Web accessibility; whether the 
Department should adopt coverage limitations for certain entities, like 
small businesses; and what resources and services were available to 
make existing Web sites accessible to individuals with disabilities. 
The Department also requested comments on the costs of making Web sites 
accessible; whether there are effective and reasonable alternatives to 
making Web sites accessible that the Department should consider 
permitting; and when any Web accessibility requirements adopted by the 
Department should become effective. The Department received 
approximately 400 public comments addressing issues germane to both 
titles II and III in response to the 2010 ANPRM. Upon review of those 
comments, the Department announced in 2015 that it decided to pursue 
separate rulemakings addressing Web accessibility for titles II and 
III. See Department of Justice--Fall 2015 Statement of Regulatory 
Priorities, available at https://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html (last visited Apr. 13, 2016). 
The Department is moving forward with rulemaking under title II first.

C. Need for Department Action

1. Use of Web sites by Title II Entities
    As mentioned previously, title II entities are increasingly using 
the Internet to disseminate information and offer services, programs, 
and activities to the public. Today, among other things, public 
entities use Web sites to promote employment opportunities and economic 
growth, improve the collection of payments and fees, encourage civic 
participation, and enhance educational opportunities. However, 
individuals with disabilities are often denied equal access to many of 
these services, programs, and activities because many public entities' 
Web sites are inaccessible. Thus, there is a digital divide between the 
ability of citizens with disabilities and those without disabilities to 
access the services, programs, and activities of their State and local 
governments.
    Public entities have created a variety of online Web portals to 
streamline their services, programs, and activities. Citizens can now 
make a number of online service requests--from requesting streetlight 
repairs and bulk trash pickups to reporting broken parking meters--and 
can often check the status of a service request online. Public entities 
also have improved the way citizens can obtain access to most common 
public services and pay fees and fines. Many States' Web sites now 
offer citizens the opportunity to renew their vehicle registrations, 
submit complaints, purchase event permits, and pay traffic fines and 
property taxes, making some of these otherwise time-consuming tasks 
easy to complete with a few clicks of a mouse at any time of the day or 
night. Moreover, many Federal benefits, such as unemployment benefits 
and food stamps, are available through State Web sites.
    Public entities also use their Web sites to make civic 
participation easier. Many public entities allow voters to begin the 
voter registration process and obtain candidate information on their 
Web sites. Individuals interested in running

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for local public offices can often find pertinent information 
concerning candidate qualifications and filing requirements on these 
Web sites as well. Citizens can watch local public hearings, read 
minutes from community meetings, or take part in live chats with 
government officials on the Web sites of State and local government 
entities. The Web sites of public entities also include a variety of 
information about issues of concern to the community and how citizens 
can get involved in community efforts to improve the administration of 
government services.
    Many public entities use online resources to promote employment 
opportunities and economic growth for their citizens. Individuals can 
use Web sites of public entities to file for unemployment benefits and 
find and apply for job openings. Pertinent job-related information and 
training opportunities are increasingly being provided on the Web sites 
of public entities. Through the Web sites of State and local 
governments, 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 Web sites of many 
State and local governments also allow members of the public to 
research and verify business licenses online and report unsavory 
business practices.
    Public entities are also using Web sites as a gateway to education. 
Public schools at all levels are offering programs and classroom 
instruction through Web sites. Some public colleges and universities 
now offer degree programs online. Many public colleges and universities 
rely on Web sites and other Internet-related technologies to allow 
prospective students to apply for admission, request on-campus living 
assignments, register for courses, access assignments and discussion 
groups, and to participate in a wide variety of administrative and 
logistical functions required for students and staff. Similarly, in 
elementary and secondary public school settings, communications via the 
Web are increasingly becoming the way teachers and administrators 
notify parents and students of grades, assignments, and administrative 
matters. These issues are also discussed in the 2010 ANPRM, see 75 FR 
43460 (July 26, 2010).
2. Barriers to Web Accessibility
    Millions of individuals in the United States have disabilities that 
affect their use of the Web. Many of these individuals use assistive 
technology to enable them to navigate Web sites or access information 
contained on those sites. For example, individuals who do not have use 
of their hands may use speech recognition software to navigate a Web 
site, while individuals who are blind may rely on a screen reader to 
convert the visual information on a Web site into speech. Many Web 
sites, however, fail to incorporate or activate features that enable 
users with disabilities to access all of the Web site's information or 
elements. For instance, individuals who are deaf are 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 
Web sites that do not allow text to be resized or do not provide 
sufficient contrast. Individuals with limited manual dexterity or 
vision disabilities who use assistive technology that enables them to 
interact with Web sites cannot access sites that do not support 
keyboard alternatives for mouse commands. These same individuals, along 
with individuals with intellectual and vision disabilities, often 
encounter difficulty using portions of Web sites that require timed 
responses from users but do not provide the option for users to 
indicate that they need more time to respond.
    Individuals who are blind or have low vision often confront 
significant barriers to Web access. This is because many Web sites 
provide information visually without features that allow screen readers 
or other assistive technology to retrieve information on the Web site 
so it can be presented in an accessible manner. A common barrier to Web 
site accessibility is an image or photograph without corresponding text 
describing the image. A screen reader or similar assistive technology 
cannot ``read'' an image, leaving individuals who are blind with no way 
of independently knowing what information the image conveys. Similarly, 
complex Web sites often lack navigational headings or links that would 
facilitate navigation using a screen reader or may contain tables with 
header and row identifiers that display data but fail to provide 
associated cells for each header and row so that the table information 
can be interpreted by a screen reader.
    Online forms, which are essential to accessing services on many 
government Web sites, are often inaccessible to individuals with 
disabilities who use screen readers. For example, field elements on 
forms, which are the empty boxes on forms that hold specific pieces of 
information, such as a last name or telephone number, may lack clear 
labels that can be read by assistive technology. Also, visual CAPTCHAs 
(Completely Automated Public Turing Test To Tell Computers and Humans 
Apart), which is distorted text that must be inputted by a Web site 
user to verify that a Web submission is being completed by a human 
rather than a computer, is not always accompanied by an audio CAPTCHA 
that is accessible. Inaccessible form fields and CAPTCHAs make it 
difficult for persons using screen readers to pay fees or fines, submit 
applications, and otherwise interact with a Web site. Some governmental 
entities use inaccessible third-party Web sites to accept online 
payments, while others request public input through inaccessible Web 
sites. These barriers greatly impede the ability of individuals with 
disabilities to access the services, programs, and activities offered 
by public entities on the Web. In many instances, removing certain Web 
site barriers is neither difficult nor especially costly. For example, 
the addition of invisible attributes known as alternative (alt) text or 
tags to an image, which can be done without any specialized equipment, 
will help keep an individual using a screen reader oriented and allow 
the individual to gain access to the information on the Web site. 
Similarly, headings, which also can be added easily, facilitate page 
navigation for those using screen readers. A discussion of barriers to 
Web access also appears in the 2010 ANPRM, see 75 FR 43460 (July 26, 
2010).
3. Compliance With Voluntary Technical Accessibility Standards Has Been 
Insufficient in Providing Access
    The Internet as it is known today did not exist when Congress 
enacted the ADA and, therefore, neither the ADA nor the regulations the 
Department promulgated under the ADA specifically address access to Web 
sites. Congress contemplated that the Department would apply the 
statute in a manner that evolved over time and delegated authority to 
the Attorney General to promulgate regulations to carry out the Act's 
broad mandate. See H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 108 
(1990); 42 U.S.C. 12186(b). 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. 28 CFR part 36, app. B. There is no doubt that the 
programs, services, and activities provided by State and local 
government entities on their Web sites are covered by title II of the 
ADA. See 28 CFR 35.102 (providing that the title II regulation 
``applies to all services, programs, and activities provided or made 
available by public entities'').

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Similarly, Web sites of recipients of Federal financial assistance are 
covered by section 504 of the Rehabilitation Act. As discussed above, 
the Department has affirmed the application of these statutes to Web 
sites in its technical assistance publication, Accessibility of State 
and Local Government Web sites to People with Disabilities, available 
at https://www.usdoj.gov/crt/ada/Web sites2.htm. Despite the clear 
application of the ADA to public entities' Web sites, it seems that 
technical Web standards under the ADA will help provide public entities 
with more specific guidance on how to make the services, programs, and 
activities they offer on their Web sites accessible. The title II ADA 
regulation currently has such specific guidance with regard to physical 
structures through the ADA Standards, which provide technical 
requirements on how to make physical environments accessible. It seems 
that similar clarifying guidance for public entities in the Web context 
is also needed.
    It has been the policy of the United States to encourage self-
regulation with regard to the Internet wherever possible and to 
regulate only where self-regulation is insufficient and government 
involvement may be necessary. See Memorandum on Electronic Commerce, 33 
WCPD 1006, 1006-1010 (July 1, 1997), available at https://www.gpo.gov/fdsys/pkg/WCPD-1997-07-07/html/WCPD-1997-07-07-Pg1006-2.htm (last 
visited Apr. 13, 2016); The Framework for Global Electronic Commerce, 
available at https://clinton4.nara.gov/WH/New/Commerce (last visited 
Apr. 13, 2016). A variety of voluntary standards and structures have 
been developed for the Internet through nonprofit organizations using 
multinational collaborative efforts. For example, the Internet 
Corporation for Assigned Names and Numbers (ICANN) issues and 
administers domain names, the Internet Society (ISOC) publishes 
computer security policies and procedures for Web sites, and the World 
Wide Web Consortium (W3C[supreg]) develops a variety of technical 
standards and guidelines ranging from issues related to mobile devices 
and privacy to internationalization of technology. In the area of 
accessibility, the Web Accessibility Initiative (WAI) of the 
W3C[supreg] created the Web Content Accessibility Guidelines (WCAG), 
which cover a wide range of recommendations for making Web content more 
accessible not just to users with disabilities but also to users in 
general. There have been two versions of WCAG, beginning with WCAG 1.0, 
which was developed in 1999, and an updated version, WCAG 2.0, which 
was released in 2008.
    Voluntary standards can be sufficient in certain contexts, 
particularly where economic incentives align with the standards' goals. 
Reliance on voluntary compliance with Web site accessibility 
guidelines, however, has not resulted in equal access for persons with 
disabilities. See, e.g., National Council on Disability, The Need for 
Federal Legislation and Regulation Prohibiting Telecommunications and 
Information Services Discrimination (Dec. 19, 2006), available at 
https://www.ncd.gov/publications/2006/Dec282006 (last visited Apr. 13, 
2016) (discussing how competitive market forces have not proven 
sufficient to provide individuals with disabilities access to 
telecommunications and information services). The WAI leadership has 
recognized this challenge and has stated that in order to improve and 
accelerate Web accessibility it is important to ``communicat[e] the 
applicability of the ADA to the Web more clearly, with updated guidance 
* * * .'' Achieving the Promise of the Americans with Disabilities Act 
in the Digital Age--Current Issues, Challenges, and Opportunities: 
Hearing Before the Subcomm. on the Constitution, Civil Rights, and 
Civil Liberties, H. Comm. On the Judiciary, 111th Cong. 35 (Apr. 22, 
2010) (statement of Judy Brewer, Director, Web Accessibility Initiative 
at the W3C[supreg]) available at https://judiciary.house.gov/_files/hearings/printers/111th/111-95_56070.PDF (last visited Apr. 13, 2016).
    Despite the availability of voluntary Web accessibility standards 
and the Department's clearly stated position that title II requires all 
services, programs, and activities of public entities, including those 
available on Web sites, to be accessible, individuals with disabilities 
continue to struggle to obtain access to the Web sites of public 
entities. As a result, the Department has addressed Web access in many 
agreements with State and local governments. Moreover, other Federal 
agencies have also taken enforcement action against public entities 
regarding the lack of access for persons with disabilities to their Web 
sites. In April 2013, for example, the Department of Labor cited the 
Florida Department of Economic Opportunity Office of Unemployment 
Compensation for violating Federal statutes, including title II of the 
ADA, for requiring unemployment compensation applicants to file claims 
online and complete an online skills assessment as part of the claims-
filing process even though the State's Web site was inaccessible. In re 
Miami Workers Ctr., CRC Complaint No. 12-FL-048 (Dep't Labor 2013) 
(initial determination), available at https://nelp.3cdn.net/2c0ce3c2929a0ee4e1_wim6i5ynx.pdf (last visited Apr. 13, 2016).
    The Department believes that adopting Web accessibility standards 
would provide clarity to public entities regarding how to make 
accessible the services, programs, and activities they offer the public 
via their Web sites. Adopting specific Web accessibility standards to 
guide public entities in maintaining accessible Web sites would also 
provide individuals with disabilities with consistent and predictable 
access to the Web sites of public entities. As noted above, many 
services, programs, and activities that public entities offer on their 
Web sites have not been accessible to individuals with disabilities. 
Because Web sites can be accessed at any time, these services, 
programs, and activities are available to the public at their 
convenience. Accessible alternative means for obtaining access to 
services, programs, and activities offered on Web sites, such as a 
staffed telephone line, would need to afford individuals with 
disabilities equivalent access to such Web-based information and 
services (i.e., 24 hours a day/7 days a week). As indicated in the 2003 
guidance, the Department questions whether alternative means would be 
likely to provide an equal degree of access. As Web sites have become 
more interconnected, dynamic, and content heavy, it has become more 
difficult, if not impossible, for public entities to replicate by 
alternative means the services, programs, and activities offered on the 
Web. Accessibility of State and Local Government Web sites to People 
with Disabilities, available at https://www.usdoj.gov/crt/ada/Web 
sites2.htm (``These alternatives, however, are unlikely to provide an 
equal degree of access in terms of hours of operation and the range of 
options and programs available.''). The increasingly interconnected and 
dynamic nature of Web sites has allowed the public to easily and 
quickly partake in a public entity's programs, services, and activities 
via the Web. Individuals with disabilities--like other members of the 
public--should be able to equally engage with public entities' 
services, programs, and activities directly through the medium of the 
Web. Opportunities for such engagement, however, require that public 
entities' Web content be accessible to individuals with disabilities. 
These issues are also

[[Page 28662]]

discussed in the 2010 ANPRM, see 75 FR 43460 (July 26, 2010).
    After considering the comments that it received in response to its 
2010 ANPRM, the Department has refined its proposal and is issuing this 
SANPRM to focus on the accessibility of Web information and services of 
State and local government entities and to seek further public comment.

II. Request for Public Comment

    The Department is seeking comments in response to this SANPRM, 
including the proposed framework, definitions, requirements, and 
timeframes for compliance under consideration, and to the specific 
questions posed in this SANPRM. The Department is particularly 
interested in receiving comments from all those who have a stake in 
ensuring that the Web sites of public entities are accessible to people 
with disabilities or who would otherwise be affected by a regulation 
requiring Web site access. The Department appreciates the complexity 
and potential impact of this initiative and therefore also seeks input 
from experts in the field of computer science, programming, networking, 
assistive technology, and other related fields whose feedback and 
expertise will be critical in developing a workable framework for Web 
site access, which respects the unique characteristics of the Internet 
and its transformative impact on everyday life. In your comments, 
please refer to each question by number. Please provide additional 
information not addressed by the proposed questions if you believe it 
would be helpful in understanding the implications of imposing ADA 
regulatory requirements on the Web sites of State and local government 
entities.

A. The Meaning of ``Web Content''

    The Department is generally considering including within the scope 
of its proposed rule all Web content public entities make available to 
the public on their Web sites and Web pages, regardless of whether such 
Web content is viewed on desktop computers, notebook computers, smart 
phones, or other mobile devices. WCAG 2.0 defines Web content as 
``information and sensory experience to be communicated to the user by 
means of a user agent, including code or markup that defines the 
content's structure, presentation, and interactions.'' See Web Content 
Accessibility Guidelines 2.0 (Dec. 2008), available at https://www.w3.org/TR/WCAG/#glossary (last visited Apr. 13, 2016). For any 
proposed rule, the Department would consider adding a definition for 
``Web content,'' which would be based on the WCAG 2.0's definition but 
would be slightly less technical with the intention that it could be 
more easily understood by the public generally. A proposed definition 
for ``Web content'' could look like the following:

    Information or sensory experience--including the encoding that 
defines the 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, and animations.

    The above definition of ``Web content'' attempts to describe the 
different types of information and experiences available on the Web. 
The definition of ``Web content'' also would include the encoding 
(i.e., programming code) used to create the structure, presentation, or 
interactions of the information or experiences on Web pages that range 
from static Web pages (e.g., Web pages with only textual information) 
to dynamic Web pages (e.g., Web pages with live Web chats). Examples of 
programming languages used to create Web pages include Hypertext Markup 
Language (HTML), Cascading Style Sheets (CSS), Flash, and JavaScript.
    The above definition of Web content would not, however, include a 
Web browser or other software that retrieves and interprets the 
programming code and displays it as a Web site or Web page. Web 
browsers are a vehicle for viewing Web content and are usually separate 
from the information, experiences, and encoding on a Web site. 
Typically, a person needs a Web browser to access the information or 
experiences available on the Web. A Web browser is the primary software 
on a desktop or notebook computer, or on a smart phone or other mobile 
device, which enables a person to view Web sites and Web pages. Common 
Web browsers used on desktop computers and mobile devices include 
Chrome, Firefox, Internet Explorer, Opera, and Safari. Web browsers 
retrieve and display different types of information and experiences 
available from Web sites and Web pages. Web browsers display the 
information and experiences by retrieving and interpreting the 
encoding--such as HTML--that is used to create Web sites and Web pages.
    The definition of ``Web content'' also would not include other 
software, such as plug-ins, that help to retrieve and display 
information and experiences that are available on Web sites and Web 
pages of public entities. For example, when a person clicks on a PDF 
document or link on a Web page, Adobe Reader--which is a plug-in 
software--will open the PDF document either within the Web browser or 
directly in Adobe Reader, depending on the Web browser's settings. 
Similarly, other popular plug-ins, such as Adobe Flash Player, Apple 
QuickTime Player, and Microsoft Windows Media Player allow users to 
play audio, video, and animations. The fact that plug-ins are required 
to open the PDF document, audio file, or video file is not always 
apparent to the person viewing the PDF document, listening to the 
audio, or watching the video.
    In sum, the Department is considering proposing a rule that would 
cover Web content available on public entities' Web sites and Web pages 
but that generally would not extend to most software, including Web 
browsers. The Department proposes a series of questions in section 
VI.B, however, regarding whether it should consider covering services, 
programs, and activities offered by public entities through mobile 
software applications (see section VI.B ``Mobile Applications'').
    Question 1: Although the definition of ``Web content'' that the 
Department is considering proposing is based on the ``Web Content'' 
definition in WCAG 2.0, it is a less technical definition. Is the 
Department's definition under consideration in harmony with and does it 
capture accurately all that is contained in WCAG 2.0's ``Web content'' 
definition?

B. Access Requirements to Apply to Web sites and Web Content of Public 
Entities

1. Standards for Web Access
    In its 2010 ANPRM, the Department asked for public comment about 
which accessibility standard it should apply to the Web sites of 
covered entities. The 2010 ANPRM discussed three potential 
accessibility standards to apply to Web sites of covered entities: (1) 
WCAG 2.0; (2) the Electronic and Information Technology Accessibility 
Standards, more commonly known as the section 508 standards; and (3) 
general performance-based standards. As explained below, the Department 
is considering proposing WCAG 2.0 Level AA as the accessibility 
standard that would apply to Web sites and Web content of title II 
entities.
    Since 1994, the W3C[supreg] has been the principal international 
organization involved in developing protocols and guidelines for the 
Web. The W3C[supreg] develops a variety of technical standards and 
guidelines, including ones relating to privacy, internationalization of 
technology, and,

[[Page 28663]]

relevant to this rulemaking, accessibility. The W3C[supreg]'s WAI has 
developed voluntary guidelines for Web accessibility, known as WCAG, to 
help Web developers create Web content that is accessible to 
individuals with disabilities. The first version of WCAG (hereinafter 
referred to as WCAG 1.0) was published in 1999. The most recent and 
updated version of WCAG (hereinafter referred to as WCAG 2.0) was 
published in December 2008, and is available at https://www.w3.org/TR/2008/REC-WCAG20-20081211/ (last visited Apr. 13, 2016).
    WCAG 2.0 has become the internationally recognized benchmark for 
Web accessibility. In October 2012, WCAG 2.0 was approved as an 
international standard by the International Organization for 
Standardization (ISO) and the International Electrotechnical Commission 
(IEC). Several nations, including Australia, Canada, France, Germany, 
Hong Kong, Japan, New Zealand, and South Korea, have either adopted 
WCAG 2.0 as their standard for Web accessibility or developed standards 
based on WCAG 2.0. Within the United States, some States, including 
Alaska, Georgia, Hawaii, and Minnesota, are also using WCAG 2.0 as 
their standard for Web accessibility. The Web accessibility standards 
in other States, such as California, Florida, Illinois, Maryland, New 
York, and Texas, are based on the section 508 standards (which are 
currently based on WCAG 1.0), and efforts are underway in at least one 
of these States to review and transition to WCAG 2.0.
    WCAG 2.0 was designed to be ``technology neutral'' (i.e., it does 
not rely on the use of specific Web technologies) in order to 
accommodate the constantly evolving Web environment and to be usable 
with current and future Web technologies. Thus, while WCAG 2.0 sets an 
improved level of accessibility and testability over WCAG 1.0, it also 
allows Web developers more flexibility and potential for innovation.
    WCAG 2.0 contains four principles that provide the foundation for 
Web accessibility. Under these four principles, there are 12 guidelines 
setting forth basic goals to ensure accessibility of Web sites. For 
each guideline, testable success criteria (i.e., requirements for Web 
accessibility that are measurable) are provided ``to allow WCAG 2.0 to 
be used where requirements and conformance testing are necessary such 
as in design specification, purchasing, regulation and contractual 
agreements.'' See WCAG 2.0 Layers of Guidance, Web Content 
Accessibility Guidelines 2.0 (Dec. 2008), available at https://www.w3.org/TR/WCAG/#intro-layers-guidance (last visited Apr. 13, 2016).
    In order for a Web page to conform to WCAG 2.0, the Web page must 
satisfy all success criteria under one of the three levels of 
conformance: A, AA, or AAA. The three levels of conformance indicate a 
measure of accessibility. Level A, which is the minimum level of 
conformance, contains criteria that provide basic Web accessibility. 
Level AA, which is the intermediate level of conformance, includes all 
of the Level A criteria as well as enhanced criteria that provide more 
comprehensive Web accessibility. Level AAA, which is the maximum level 
of conformance, includes all Level A and Level AA criteria as well as 
additional criteria that can provide a more enriched user experience. 
At this time, the W3C[supreg] does not recommend that Level AAA 
conformance be required as a general policy for entire Web sites 
because it is not possible to satisfy all Level AAA criteria for some 
content. See Understanding Requirement 1, Understanding WCAG 2.0: A 
Guide to Understanding and Implementing WCAG 2.0 (last revised Jan. 
2012), available at https://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-conformance-requirements-head (last visited Apr. 
13, 2016).
    The 2010 ANPRM asked the public to provide input on which of the 
three conformance levels the Department should adopt if it decided to 
use WCAG 2.0 as the standard for Web accessibility. Most of the 
comments the Department received overwhelmingly supported adopting 
Level AA conformance. Commenters emphasized that Level AA conformance 
has been widely recognized and accepted as providing an adequate level 
of Web accessibility without being too burdensome or expensive. Some 
commenters urged the Department to adopt Level A conformance under WCAG 
2.0, stating that requiring any higher level of conformance would 
result in hardship for smaller entities because of their lack of 
resources and technical expertise. The commenters supporting the 
adoption of Level A conformance asserted that some Level AA criteria, 
such as the provision to caption all live-audio content in synchronized 
media, are expensive and technically difficult to implement. The 
W3C[supreg], the creator of WCAG 2.0, submitted comments stating that 
the adoption of Level AA conformance is appropriate and necessary to 
ensure a sufficient level of accessibility for individuals with 
different kinds of disabilities and is feasible to implement for Web 
sites ranging from the most simple to the most complex. No commenters 
suggested that the Department adopt Level AAA in its entirety.
    Based on its review of public comments and independent research, 
the Department is considering proposing WCAG 2.0 Level AA as the 
technical standard for public entity Web sites because it includes 
criteria that provide more comprehensive Web accessibility to 
individuals with disabilities--including those with visual, auditory, 
physical, speech, cognitive, developmental, learning, and neurological 
disabilities. In addition, Level AA conformance is widely used, 
indicating that it is generally feasible for Web developers to 
implement. Level A conformance does not include criteria for providing 
Web accessibility that some commenters generally considered important, 
such as minimum levels of contrast, text resizable up to 200 percent 
without loss of content, headings and labels, or visible keyboard focus 
(e.g., a visible border showing keyboard navigation users the part of 
the Web page with which they are interacting).\1\ Also, while Level AAA 
conformance provides a better and enriched user experience for 
individuals with disabilities, it is not possible to satisfy all Level 
AAA Success Criteria for some content. Therefore, the Department 
believes that Level AA conformance is the most appropriate standard.
---------------------------------------------------------------------------

    \1\ W3C[supreg], Focus Visible: Understanding SC 2.4.7., 
available at https://www.w3.org/TR/UNDERSTANDING-WCAG20/navigation-mechanisms-focus-visible.html (last visited Apr. 13, 2016).
---------------------------------------------------------------------------

    Note that while WCAG 2.0 provides that for ``Level AA conformance, 
the Web page [must] satisf[y] all the Level A and Level AA Success 
Criteria,'' individual Success Criteria in WCAG 2.0 are labeled only as 
Level A or Level AA. See Conformance Requirements, Web Content 
Accessibility Guidelines 2.0 (Dec. 2008), available at https://www.w3.org/TR/WCAG/#conformance-reqs (last visited Apr. 13, 2016). A 
person reviewing individual requirements in WCAG 2.0, accordingly, may 
not understand that both Level A and Level AA Success Criteria must be 
met in order to attain Level AA. Therefore, for clarity, the Department 
is considering that any specific regulatory text it proposes regarding 
compliance with WCAG 2.0 Level AA should provide that covered entities 
must comply with both Level A and Level AA Success Criteria and 
Conformance Requirements specified in WCAG 2.0.

[[Page 28664]]

    Adoption of WCAG 2.0 Level AA would make the ADA requirements 
consistent with the standard that has been most widely accepted 
internationally. As noted earlier, several nations have selected Level 
AA conformance under WCAG 2.0 as their standard for Web accessibility. 
Additionally, in 2012, the European Commission issued a proposal for 
member countries to adopt Level AA conformance under WCAG 2.0 as the 
accessibility standard for public sector Web sites, available at https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0721:FIN:EN:PDF (last visited Apr. 13, 
2016). The Web sites of Federal agencies that are governed by section 
508 may soon also need to comply with WCAG 2.0. The U.S. Access Board 
(Access Board) has proposed to update and revise the section 508 
standards by adopting the Level AA conformance requirements under WCAG 
2.0. See 80 FR 10880 (Feb. 27, 2015); 76 FR 76640 (Dec. 8, 2011); 75 FR 
13457 (Mar. 22, 2010).
    The Department also considered whether it should propose adoption 
of the current section 508 standards instead of WCAG 2.0. The 2010 
ANPRM sought public comment on this question. Section 508 of the 
Rehabilitation Act requires the Federal government to ensure that the 
electronic and information technology that it develops, procures, 
maintains, or uses--including Web sites--is accessible to persons with 
disabilities. See 29 U.S.C. 794(d). In 2000, the Access Board adopted 
and published the section 508 standards, 36 CFR part 1194, available at 
https://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-section-508-standards/section-508-standards (last 
visited Apr. 13, 2016), to implement section 508. The section 508 
standards, among other things, provide specific technical requirements 
to ensure that Federal government Web sites are accessible to 
individuals with disabilities. These technical requirements for Web 
accessibility are based on WCAG 1.0. Public commenters on the 2010 
ANPRM overwhelmingly supported the Department's adoption of WCAG 2.0 
over the current section 508 standards. Commenters emphasized that 
because the Web accessibility requirements in the current section 508 
standards are based on the almost 14-year-old WCAG 1.0, they are 
outdated and inappropriate to address the evolving and increasingly 
dynamic Web environment. The Department agrees that since WCAG 1.0 and 
the section 508 standards were issued, Web technologies and online 
services have evolved and changed, and, thus, the Department does not 
believe that either one would be the appropriate standard for any title 
II ADA Web accessibility requirements. By contrast, WCAG 2.0 provides 
an improved level of accessibility and testability. Also, unlike WCAG 
1.0, WCAG 2.0 has been designed to be technology neutral to provide Web 
developers more flexibility to address accessibility of current as well 
as future Web technologies. In addition, as mentioned previously, the 
Department is aware that the Access Board issued a recent NPRM in 2015 
and two ANPRMs--one in 2010 and another in 2011--proposing to update 
and revise the section 508 standards by adopting WCAG 2.0 as the 
standard for Web accessibility. 80 FR 10880 (Feb. 27, 2015); 76 FR 
76640 (Dec. 08, 2011); 75 FR 13457 (Mar. 22, 2010).
    The Department's 2010 ANPRM also sought public comment on whether 
the Department should adopt performance standards instead of specific 
technical standards for accessibility of Web sites. Performance 
standards establish general expectations or goals for Web accessibility 
and allow for compliance via a variety of unspecified methods and 
means. While some commenters supported the adoption of performance 
standards for Web accessibility, pointing out that they provide greater 
flexibility in ensuring accessibility as Web technologies change, a 
vast majority of commenters supported the adoption of WCAG 2.0 instead. 
The majority of commenters stressed that performance standards are 
likely too vague and subjective and would prove insufficient in 
providing consistent and testable requirements for Web accessibility. 
Several commenters who supported the adoption of WCAG 2.0 also noted 
that, similar to a performance standard, WCAG 2.0 has been designed to 
allow for flexibility and innovation in the evolving Web environment. 
The Department recognizes the importance of adopting a standard for Web 
accessibility that provides not only specific and testable 
requirements, but also sufficient flexibility to develop accessibility 
solutions for new Web technologies. The Department believes that WCAG 
2.0 achieves this balance because it provides flexibility similar to a 
performance standard, but also provides more clarity, consistency, and 
objectivity. Using WCAG 2.0 would also enable public entities to know 
precisely what is expected of them under title II, which may be of 
particular benefit to jurisdictions with less technological experience. 
It would also harmonize with the requirements adopted by certain other 
nations, some State and local governments in the U.S., and with the 
standard proposed by the U.S. Access Board that would apply to Federal 
agency Web sites. Thus, the Department is considering proposing that 
public entities comply with WCAG 2.0 Level AA.
    Question 2: Are there other issues or concerns that the Department 
should consider regarding the accessibility standard--WCAG 2.0 Level A 
and Level AA Success Criteria and Conformance Requirements--the 
Department is considering applying to Web sites and Web content of 
public entities? Please provide as much detail as possible in your 
response.
2. Timeframe for Compliance
    The 2010 ANPRM asked for public comment regarding the effective 
date of compliance with any Web accessibility requirements the 
Department would adopt. Comments regarding the compliance date were 
extremely varied--ranging from requiring compliance upon publication to 
allowing a five-year window for compliance--with no clear consensus 
favored. Many of the comments advocating for shorter timeframes came 
from individuals with disabilities or disability advocacy 
organizations. These commenters argued that Web accessibility has long 
been required by the ADA and that an extended deadline for compliance 
rewards entities that have not made efforts to make their Web sites 
accessible. A similar number of commenters responded asking for longer 
timeframes to comply. Commenters representing public entities were 
particularly concerned about shorter compliance deadlines, often citing 
budgets and staffing as major limitations. Many public entities stated 
that they lack qualified personnel to implement Web accessibility 
requirements. The commenters stated that in addition to needing time to 
implement the changes to their Web sites, they also need time to train 
staff or contract with professionals who are proficient in developing 
accessible Web sites.

[[Page 28665]]

    Despite the absence of a regulation, many public entities have some 
familiarity with Web accessibility. For over a decade, the Department 
has provided technical assistance materials, and engaged in concerted 
enforcement efforts, that specifically have addressed Web 
accessibility.\2\ Additionally, while not all covered entities have 
adopted WCAG 2.0 Level AA, it is likely that there is some degree of 
familiarity with that standard in the regulated community, which may 
help mitigate the time needed for compliance. Therefore, the Department 
is considering a two-year implementation timeframe for most public 
entities in an effort to balance the importance of accessibility for 
individuals with disabilities with the resource challenges faced by 
public entities. The Department is considering the following proposal 
to address specific standards and timeframes for compliance:
---------------------------------------------------------------------------

    \2\ See, e.g., The ADA Best Practices Tool Kit for State and 
Local Governments (July 26, 2007), available at https://www.ada.gov/pcatoolkit/toolkitmain.htm; Chapter 5: Web site Accessibility under 
Title II of the ADA (May 7, 2007), available at https://www.ada.gov/pcatoolkit/ch5_toolkit.pdf; Chapter 5 Addendum: Title II Checklist 
(Web site Accessibility) (May 4, 2007), available at https://www.ada.gov/pcatoolkit/ch5_chklist.pdf; Cities and Counties: First 
Steps toward Solving Common ADA Problems, available at https://www.ada.gov/civiccommonprobs.htm; Accessibility of State and Local 
Government Web sites to People with Disabilities (June 2003), 
available at https://www.usdoj.gov/crt/ada/Web sites2.htm; Settlement 
Agreement Between the United States and Pennington County, South 
Dakota, Under the Americans with Disabilities Act (effective June 1, 
2015), available at https://www.ada.gov/pennington_co/pennington_sa.html.

    Effective two years from the publication of this rule in final 
form, a public entity shall ensure that the Web sites and Web 
content it makes available to members of the public comply with 
Level A and Level AA Success Criteria and Conformance Requirements 
specified in 2008 WCAG 2.0, except for Success Criterion 1.2.4 on 
live-audio content in synchronized media,\3\ 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\ Live-audio content in synchronized media, addressed in Level 
AA Success Criterion 1.2.4, is discussed in section II.B.3. 
``Captions for Live-Audio Content in Synchronized Media'' below.

    Under such a proposal, public entities would have two years after 
the publication of a final rule to make their Web sites and Web content 
accessible in conformance with WCAG 2.0 Level AA, unless compliance 
with the requirements would result in a fundamental alteration in the 
nature of a service, program, or activity or in undue financial and 
administrative burdens. (The limitations on a public entity's 
obligation to comply with the proposed requirements are discussed in 
more detail in section V. ``Compliance Limitations and Other Duties'' 
below.)
    Question 3: Does an effective date of two years after the 
publication of a final rule strike an appropriate balance of 
stakeholder interests? Why or why not? Should the Department consider a 
shorter or longer effective date? If so, what should those timeframes 
be and why? Please provide support for your view. Should the Department 
consider different approaches for phasing in compliance? For example, 
should the Department consider permitting public entities to make 
certain Web pages (e.g., most frequently used or necessary to 
participate in the public entity's service, program, or activity) 
compliant by an initial deadline, and other Web pages compliant by a 
later deadline? If so, how should the Department define the Web pages 
that would be made accessible first, and what timeframes should the 
Department consider? Please provide support for your view.
    Question 4: Some 2010 ANPRM commenters expressed concern that there 
is likely to be a shortage of professionals who are proficient in Web 
accessibility to assist covered entities in bringing their Web sites 
into compliance. Please provide any data that the Department should 
consider that supports your view.
3. Captions for Live-Audio Content in Synchronized Media
    Level AA Success Criterion 1.2.4 under WCAG 2.0 requires 
synchronized captions for all live-audio content in synchronized media. 
The intent of Success Criterion 1.2.4 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.'' See Captions (Live), 
Understanding WCAG 2.0: A Guide to Understanding and Implementing WCAG 
2.0 (last revised Jan. 2012), available at https://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-real-time-captions.html (last visited 
Apr. 13, 2016) (emphasis in original).
    Because of the added cost of, and the lack of mature technologies 
for, providing real-time captions for live performances or events 
presented on the Web, some countries that have adopted WCAG 2.0 Level 
AA as their standards for Web accessibility, such as Canada and New 
Zealand, have specifically exempted the requirement for captioning of 
live-audio content in synchronized media. Also, as mentioned 
previously, several commenters urged the Department to not adopt Level 
AA conformance under WCAG 2.0 because of their concern that providing 
synchronized captions for all live-audio content in synchronized media 
on the Web would be technically difficult to implement.
    The Department recognizes commenters' concerns that providing real-
time captions for live performances or events may be technically 
difficult to implement and may create additional costs and burdens for 
public entities. However, the Department also recognizes that 
technologies used to provide real-time captions for Web content are 
improving and that covered entities are increasingly providing live 
Webcasts (i.e., broadcasts of live performances or events on the Web) 
of public hearings and committee meetings, the majority of which are 
not accessible to individuals with disabilities. In order for 
individuals with disabilities to participate in civic life more fully, 
public entities need to provide real-time captions for public hearings 
or committee meetings they broadcast on the Web as technology improves 
and providing captions becomes easier. Still, the information gathered 
from public comments and independent research suggests that public 
entities may need more time to make this type of Web content 
accessible. Accordingly, the Department is considering a longer 
compliance schedule for public entities to comply with the WCAG 2.0 
Level AA conformance requirements to provide captions for live-audio 
content in synchronized media on Web sites and seeks public input on 
how it should frame those proposed requirements. The Department is 
considering the following proposal for captions for live-audio content 
in synchronized media:

    Effective three years from the publication of this final rule, a 
public entity shall ensure that live-audio content in synchronized 
media it makes available to members of the public complies with 
Level AA Success Criteria and Conformance Requirements specified in 
2008 WCAG 2.0, 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.

    Question 5: Is there technology available now that would allow 
public entities to efficiently and effectively provide captioning of 
live-audio content in synchronized media in compliance with WCAG 2.0 
Level AA conformance? If so, what is the technology and how

[[Page 28666]]

much does it cost? If public entities currently provide captioning for 
live-audio content, what method, process, or technology do they use to 
provide the captions? If such technology is not currently available, 
when is it likely to become available?
    Question 6: What are the availability and the cost of hiring and 
using trained professionals who could provide captions for live-audio 
content in synchronized media? What are the additional costs associated 
with producing captions for live-audio content in synchronized media, 
such as the technological components to ensuring that the captions are 
visible on the Web site and are synchronized with the live-audio 
content?
    Question 7: Should the Department consider a shorter or longer 
effective date for the captioning of live-audio content in synchronized 
media requirement, or defer this requirement until effective and 
efficient technology is available? Please provide detailed data and 
information for the Department to consider in your response.
4. Equivalent Facilitation
    The Department recognizes that a public entity should be permitted 
to use designs, products, or technologies as alternatives to those 
prescribed for any Web accessibility requirements, provided that such 
alternatives result in substantially equivalent or greater 
accessibility and usability. The Department is considering including a 
provision in a proposed Web access rule that addresses this principle, 
which is known as equivalent facilitation. The 1991 and 2010 ADA 
Standards for Accessible Design both contain a similar equivalent 
facilitation provision. The purpose of allowing for equivalent 
facilitation is to encourage flexibility and innovation by covered 
entities while still ensuring substantially equivalent or greater 
accessibility and usability. The Department believes, however, the 
responsibility for demonstrating equivalent facilitation rests with the 
covered entity.
    Question 8: Are there any existing designs, products, or 
technologies (whether individually or in combination with others) that 
would result in accessibility and usability that is either 
substantially equivalent to or greater than WCAG 2.0 Level AA?
    Question 9: Are there any issues or concerns that the Department 
should consider in determining how a covered entity would demonstrate 
equivalent facilitation?

C. Alternative Requirements

1. Small Public Entities
    The Department is also interested in exploring and receiving public 
comment about whether to consider proposing alternate conformance 
levels, compliance date requirements, or other methods to minimize any 
significant economic impact on small public entities. The discussion in 
this section provides the Department's thinking regarding potential 
ways to minimize any significant economic impact on small entities. 
However, the Department is open to other alternatives for achieving 
this purpose and that satisfy the requirements and purposes of title II 
of the Americans with Disabilities Act.
    For the purpose of this rulemaking, a ``small public entity'' is 
one that qualifies as a ``small governmental jurisdiction'' under the 
Regulatory Flexibility Act of 1980 (RFA), which defines the term to 
mean ``governments of cities, counties, towns, townships, villages, 
school districts, or special districts, with a population of less than 
fifty thousand * * *''). 5 U.S.C. 601(5). In order to make the 
distinction between the population sizes of public entities clear for 
the purposes of a rulemaking, the Department is considering proposing 
that the population of a public entity should be determined by 
reference to the total general population of the jurisdiction as 
calculated by the U.S. Census Bureau, not the population that is 
eligible for or that takes advantage of the public entity's specific 
services. For example, a county school district in a county with a 
population of 60,000 would not be considered a small public entity 
regardless of the number of students enrolled in or eligible for 
services. As another example, individual county schools also would not 
be considered small public entities if they are components of a county 
government that has a population of over 50,000 (i.e., the individual 
county schools are not separate legal entities). While the individual 
county school in this example may create and maintain a Web site, like 
in any other matter involving that school, it is a county entity that 
is ultimately legally responsible for what happens in the individual 
school.
    In the 2010 ANPRM, the Department solicited public comment on 
whether it should consider different compliance requirements or a 
different timetable for small entities in order to reduce the impact on 
them as required by the RFA and Executive Order 13272. See 75 FR 43460, 
43467 (July 26, 2010). Many disability organizations and individual 
commenters did not support having a different timetable or different 
accessibility requirements for smaller entities, stating that such a 
proposal would be confusing because people with disabilities would be 
uncertain about which Web sites they visit should be accessible and by 
when. Those commenters further emphasized that access to Web content of 
small entities is important and that many small entities have smaller 
Web sites with fewer Web pages, which would make compliance easier and 
therefore require fewer resources. Commenters opposing different 
timetables or accessibility requirements for smaller entities also 
noted that small entities are protected from excessive burdens deriving 
from rigorous compliance dates or stringent accessibility standards by 
the ADA's undue burden compliance limitations.
    Many commenters, especially Web developers and those representing 
covered entities, stated that compliance in incremental timeframes 
would be helpful in allowing covered entities--especially smaller 
ones--to allocate resources (both financial and personnel) to bring 
their Web sites into compliance. These commenters noted that many small 
entities do not have a dedicated Web master or staff. Even when these 
small entities develop or maintain their own Web sites, commenters 
stated that they often do so with staff or volunteers who have only a 
cursory knowledge of Web design and merely use manufactured Web 
templates or software, which may not be accessible, to create Web 
pages. Additionally, even when small entities do use outside help, a 
few commenters expressed concern that there is likely to be a shortage 
of professionals who are proficient in Web accessibility to assist all 
covered entities in bringing their Web sites into compliance all at 
once. Some commenters also expressed concern that smaller entities 
would need to take down their Web sites because they would not be able 
to comply with the accessibility requirements. Accordingly, the 
Department is interested in receiving comment on whether ``small public 
entities''--again those with a population of 50,000 or less--should 
have an additional year (i.e., three years total) or other expanded 
timeframe to comply with the specific Web requirements the Department 
proposes.
    In addition to a longer timeline for compliance, the Department is 
considering whether to propose applying WCAG 2.0 Level A to certain 
very small public entities. As mentioned previously, in the 2010 ANPRM 
the Department asked for public comment regarding what compliance 
alternatives the Department should consider for

[[Page 28667]]

small public entities. Comments received in response to the 2010 ANPRM 
indicate that many small public entities should be able to comply with 
Level A and Level AA Success Criteria and Conformance Requirements 
specified in WCAG 2.0. However, the Department is interested in public 
comment regarding whether it should consider applying a different WCAG 
2.0 conformance level to very small public entities (e.g., entities 
with populations below 2,500, 1,000, etc.) that may initially face more 
technical and resource challenges in complying than larger public 
entities. The Department seeks public comment on whether it should 
consider requiring WCAG 2.0 Level A conformance for very small public 
entities. In addition, the Department is interested in whether there 
are certain population thresholds within the category of small public 
entities or other criteria that should be used to define these very 
small public entities. Also, the Department is interested in public 
comment on whether there is a certain subset of very small public 
entities (e.g., entities with populations below 500, 250, etc.) for 
which compliance with even Level A would be too burdensome and, thus, 
the Department should consider deferring compliance with WCAG 2.0 
altogether at this time for those entities.
    WCAG 2.0 Level A does not include the requirement to provide 
captioning of live-audio content in synchronized media. However, were 
the Department to require WCAG 2.0 Level AA conformance for very small 
public entities, the Department is considering whether the requirement 
to provide captioning of live-audio content in synchronized media 
should be deferred for very small public entities. Also, the Department 
is considering whether the requirement to provide captioning of live-
audio content in synchronized media should be deferred for all small 
public entities at this time.
    Question 10: Would the Department be correct to adopt the RFA's 
definition for a ``small governmental jurisdiction'' (i.e., governments 
of cities, counties, towns, townships, villages, school districts, or 
special districts, with a population of less than 50,000) as its 
population threshold for small public entities? Are there other 
definitions for ``small governmental jurisdiction'' the Department 
should consider using to define the population threshold for small 
public entities for purposes of this rulemaking? Please provide as much 
information as possible, including any supporting data for your views.
    Question 11: Are there technical and resource challenges that 
smaller entities might face in meeting Level AA conformance? At what 
level are small public entities currently providing accessibility on 
their Web sites? Do small public entities have internal staff to modify 
their Web sites, or do they utilize outside consulting staff to modify 
and maintain their Web sites? Are small public entities facing budget 
constraints that may impair their ability to comply with this 
regulation?
    Question 12: Are there other issues or considerations regarding the 
accessibility standard--WCAG 2.0 Level A Success Criteria and 
Conformance Requirements-- that the Department is considering applying 
to Web sites and Web content of very small public entities that the 
Department should consider? Please provide as much detail as possible 
in your response.
    Question 13: If the Department were to apply a lower compliance 
standard to very small public entities (WCAG 2.0 Level A), what would 
be the appropriate population threshold or other appropriate criteria 
for defining that category? Should the Department consider factors 
other than population size, such as annual budget, when establishing 
different or tiered compliance requirements? If so, what should those 
factors be, why are they more appropriate than population size, and how 
should they be used to determine regulatory requirements? What would be 
the consequences for individuals with disabilities if the Department 
applied a lower compliance standard, WCAG 2.0 Level A, to very small 
public entities?
    Question 14: Would applying to very small public entities an 
effective date of three years after the publication of the final rule 
strike an appropriate balance of stakeholder interests? Why or why not? 
Should the Department consider a shorter or longer effective date for 
very small public entities? Please provide specific examples or data in 
support of your response.
    Question 15: Should the Department defer compliance with WCAG 2.0 
altogether for a subset of very small public entities? Why or why not? 
If so, what would be the appropriate population threshold or other 
appropriate criteria for defining that subset of very small public 
entities? Should the Department consider factors other than population 
size, such as annual budget, when establishing the subset of public 
entities subject to deferral? If so, what should those factors be, why 
are they more appropriate than population size, and how should they be 
used to determine regulatory requirements? What would be the 
consequences to individuals with disabilities if the Department 
deferred compliance with WCAG 2.0 for a subset of very small public 
entities?
    Question 16: If the Department were not to apply a lower compliance 
standard to very small public entities (WCAG 2.0 Level A), should the 
Department consider a deferral of the requirement to provide captioning 
of live-audio content in synchronized media for very small public 
entities? Additionally, should the Department consider a deferral of 
the requirement to provide captioning of live-audio content in 
synchronized media for all small public entities? Why or why not?
2. Special Districts
    The Department is also interested in gathering information and 
comments on how it should frame the requirements for Web access for 
special district governments. For the purposes of the Department's 
rulemaking, a special district government is 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 with a population that is not 
calculated by the United States Census Bureau in the most recent 
decennial Census or Small Area Income and Poverty Estimates.\4\ The 
Department is considering whether special district governments should 
be required to meet a lower conformance standard, WCAG 2.0 Level A, and 
be allotted three years for compliance or another extended compliance 
date.
---------------------------------------------------------------------------

    \4\ See U.S. Census Bureau, Lists and Structure of Governments: 
Population of Interest--Special Districts, available at https://www.census.gov/govs/go/special_district_governments.html (last 
visited Apr. 13, 2016).
---------------------------------------------------------------------------

    A lower conformance standard and a longer timeframe for compliance 
for special district governments may be appropriate for two reasons. 
First, because the U.S. Census Bureau does not provide population 
estimates for special district governments, it would be difficult for 
these limited-purpose public entities to obtain population estimates 
that are objective and reliable to determine their duties under any 
proposed rule that differentiates among public entities based on 
population size. While some special district governments may estimate 
their total populations, these entities may use varying methodologies 
to calculate population estimations leading to possible confusion and 
inconsistency in the application of the proposed accessibility 
requirements. Second, special district

[[Page 28668]]

governments are generally formed to perform a single function or a very 
limited number of functions (e.g., provide mosquito abatement or water 
and sewer services) and have more limited or specialized budgets. 
Therefore, the Department is interested in gathering information and 
comments regarding whether special district governments should comply 
with WCAG 2.0 Level A instead of Level AA. The Department is also 
interested in receiving comment on whether an extended date for 
compliance of three years for special district governments is warranted 
and necessary.
    Question 17: Are there technical and resource challenges that 
special districts might face in meeting Level AA conformance? At what 
level are special districts currently providing accessibility on their 
Web sites? Do special districts have internal staff to modify their Web 
sites, or do they utilize outside consulting staff to modify and 
maintain their Web sites? Are special districts facing budget 
constraints that may impair their ability to comply with a proposed 
regulation requiring compliance with Level AA?
    Question 18: Are there other issues or considerations regarding the 
accessibility standard--WCAG 2.0 Level A Success Criteria and 
Conformance Requirements-- that the Department is considering applying 
to Web sites and Web content of special district governments that the 
Department should consider? Please provide as much detail as possible 
in your response.
    Question 19: Does the description of special district governments 
above make clear which public entities are captured by that category? 
Is there any additional information on calculating the populations of 
special district governments that the Department should consider?

III. Exceptions to the Web Access Requirements

    In the 2010 ANPRM, the Department requested public comment on 
whether it should adopt certain coverage limitations when it develops 
its proposed ADA Web regulations. The Department was particularly 
interested in hearing about the challenges covered entities might face 
in making existing Web content accessible, whether it should except 
from any rule Web content posted by third parties, and whether it 
should except content on Web sites linked from the Web sites of public 
entities. Commenters that supported providing exceptions suggested that 
materials on the public entities' Web sites prior to the effective date 
of a regulation should not be subject to a Web access rule, as long as 
the materials are not subsequently modified or updated after any 
regulation becomes effective. These commenters believed that it would 
be burdensome to require public agencies to retroactively make all 
documents on their Web site accessible, noting that many of the 
outdated documents were hundreds of pages long and were scanned images. 
Several commenters requested that the Department except from any Web 
access rule links on public entities' Web sites to other Web sites 
unless either the public entities operate or control the other Web site 
or access to the linked content is important or necessary to 
participate in the public entities' services. Many commenters supported 
exceptions for Web content posted by third parties on public entities' 
Web sites and at least one commenter suggested that where practicable, 
public entities should make and publicize the availability of 
alternative accessible means for accessing the third-party Web content. 
On the other hand, a small number of comments--mostly from advocacy 
groups and private citizens--suggested that the title II regulation 
should not include any exceptions because the undue administrative and 
financial burdens compliance limitations would protect public entities 
from overly burdensome requirements resulting from such a regulation. 
Finally, a number of commenters urged the Department to require public 
entities to develop and deploy Web platforms (i.e., a Web site 
framework with services, tools, and interfaces that enable users to 
interact with a Web site) that are accessible so that third parties 
would have the ability to make the Web content they post on public 
entities' Web sites accessible. After consideration of these comments 
and after conducting independent research, as described in more detail 
below, the Department is currently of the view that some exceptions to 
any Web access standards may be warranted and should therefore be part 
of any Department rulemaking.
    At this juncture, the Department is considering a number of 
categories of Web content for potential exceptions: (1) Archived Web 
content; (2) certain preexisting conventional electronic documents; (3) 
third-party Web content linked from a public entity's Web site; and (4) 
certain Web content posted by third parties on a public entity's Web 
site.

A. Archived Web Content

    The Web sites of many public entities often include a significant 
amount of archived Web content, which may contain information that is 
outdated, superfluous, or replicated elsewhere. Generally, this 
historic information is of interest to only a small segment of the 
general population. Still, the information may be of interest to some 
members of the public, including some individuals with disabilities, 
who are conducting research or are otherwise interested in these 
historic documents. The Department is concerned, however, that public 
entities would need to expend considerable resources to retroactively 
make accessible the large quantity of historic information available on 
public entities' Web sites. Thus, the Department believes providing an 
exception from the Web access requirements for Web content that meets a 
definition it is considering proposing for ``archived Web content'' is 
appropriate. A proposed definition of ``archived Web content'' may look 
like the following:

    Archived Web content means Web content that: (1) Is maintained 
exclusively for reference, research, or recordkeeping; (2) is not 
altered or updated after the date of archiving; and (3) is organized 
and stored in a dedicated area or areas clearly identified as being 
archived.

    Under the proposal presently under consideration by the Department, 
in order for archived Web content to be excepted from the Web access 
requirements of any proposed rule, all three prongs of the definition 
would have to be satisfied.
    An archived Web content exception would allow public entities to 
keep and maintain historic Web content, while utilizing their resources 
to make accessible the many current and up-to-date materials that all 
citizens need to access for existing public services or to participate 
in civic life. As discussed below, despite any exception the Department 
might propose regarding archived Web content, individual requests for 
access to these excepted documents would still need to be addressed on 
a case-by-case basis in order to ensure that individuals with 
disabilities are able to receive the benefits or services of the public 
entity's archived Web content through other effective means. Under 
title II of the ADA, it is the responsibility of the public entity to 
make these documents accessible to individuals with disabilities, see 
generally, 42 U.S.C. 12132 and 28 CFR 35.160, and, ``[i]n order to be 
effective, auxiliary aids and services must be provided in accessible 
formats, in a timely manner, and in such a way as to protect the 
privacy and

[[Page 28669]]

independence of the individual with a disability.'' 28 CFR 
35.160(b)(2).
    Question 20: Is the definition the Department is considering for 
archived Web content appropriate?
    Question 21: Does the archived Web content definition and exception 
under consideration take into account how public entities manage 
outdated content on their Web sites? How often do individuals seek 
access to such documents and how long would it take public entities to 
provide these documents in an accessible format? Are there other issues 
that the Department should consider in formulating an archived Web 
content definition or an exception for archived materials on Web sites 
of public entities?

B. Preexisting Conventional Electronic Documents

    The Department is considering excepting from any Web access rule, 
conventional electronic documents (e.g., Microsoft Word documents) that 
exist on public entities' Web sites prior to the compliance date of any 
proposed rule (preexisting conventional electronic documents). In the 
past, documents created by or for a public entity were only available 
in traditional paper format; however, today most documents are created 
electronically via word processor software, such as Corel WordPerfect 
or Microsoft Word, or spreadsheet software, such as Corel Quattro Pro 
or Microsoft Excel. The Department's research indicates that most Web 
sites of public entities contain large amounts of current electronic 
documents that are intended to be used by members of the public in 
either an electronic form or as printed output, which are not suitable 
to be archived. The types of electronic documents can range from a 
single-page meeting notice containing only text to a comprehensive 
report containing text, images, charts, graphs, and maps. The majority 
of these electronic documents are in Adobe PDF format, but many 
electronic documents are formatted as word processor files (e.g., Corel 
WordPerfect or Microsoft Word files), presentation files (e.g., Apple 
Keynote or Microsoft PowerPoint files), spreadsheet files (e.g., Corel 
Quattro Pro or Microsoft Excel files), and database files (e.g., 
FileMaker Pro or Microsoft Access files). A proposed definition of 
``conventional electronic documents'' may look like the following:

    Conventional electronic documents means electronic files 
available on a public entity's Web site that are in the following 
electronic file formats: portable document file (PDF) formats, word 
processor file formats, presentation file formats, spreadsheet file 
formats, and database file formats.

    Because of the substantial number of conventional electronic 
documents on public entities' Web sites, and because of the difficulty 
of remediating complex types of information and data to make them 
accessible after-the-fact, the Department is considering a proposal to 
except certain preexisting conventional electronic documents from the 
Web access requirements. The Department is considering such an 
exception because it believes covered entities should focus their 
limited personnel and financial resources on developing new 
conventional electronic documents that are accessible and remediating 
existing electronic documents that are used by members of the public to 
apply for or gain access to the public entity's services, programs, or 
activities. The Department believes this approach may reduce the 
burdens on covered entities but still provide Web access to key 
documents. An exception for ``preexisting conventional electronic 
documents'' could then provide the following:

    Conventional electronic documents created by or for a public 
entity that are available on a public entity's Web site before the 
date the public entity is required to comply with this rule are not 
required to comply with the Web access standards, unless such 
documents are to be used by members of the public to apply for, gain 
access to, or participate in a public entity's services, programs, 
or activities.

    Under such a proposal, the Department would anticipate requiring 
any preexisting document to be used by members of the public to apply 
for or gain access to the public entity's services, programs, or 
activities, including documents that provide instructions or guidance, 
would also need to be made accessible. For example, a public entity 
would not only need to make an application for a business license 
accessible, but it would also need to make accessible other materials 
that may be needed to obtain the license, complete the application, 
understand the process, or otherwise take part in the program. 
Accordingly, documents necessary to understand the process of obtaining 
the business license, such as business license application 
instructions, manuals, sample knowledge tests, and guides, such as 
``Questions and Answers'' documents, would also be required to be 
accessible under such an exception. However, the Department believes 
that under such a proposal, if the public entity's Web site has the 
same information contained in multiple conventional electronic 
documents, the Department would expect that the public entity should 
only be required to ensure that a single complete set of instructions 
or guidance be available in an accessible format on the Web.
    Question 22: Would such a definition and exception under 
consideration make clear the types of documents needed to apply for or 
gain access to services, programs, or activities? If some versions of 
documents are accessible and others are not, should the Department 
require that accessible documents be labeled as such? Are there other 
issues that the Department should take into consideration with regard 
to a proposed exception for conventional electronic documents?

C. Third-Party Web Content

    The Department received a variety of comments regarding whether or 
not covered entities should be responsible for ensuring that third-
party Web content and Web content public entities link to is 
accessible. For purposes of the proposals under consideration herein, 
``third party'' refers to someone other than the public entity. Many 
commenters maintained that covered entities cannot be held accountable 
for third-party content on their Web sites because many entities do not 
control such content. A number of commenters also suggested that public 
entities be responsible for providing a platform that would allow users 
to post accessible content, but the public entities should not be 
responsible for guaranteeing the accessibility of the resulting user-
generated content. Several commenters suggested that covered entities 
should not be responsible for third-party content and links unless they 
are necessary for individuals to access the services, programs, or 
activities of the public entities. A number of commenters expressed the 
view, however, that covered entities should be responsible for all 
third-party content. These commenters stated that the boundaries 
between Web content generated by a covered entity and a third party are 
often difficult to discern and cited the undue burden defense as a 
factor favoring coverage of third-party content. Additionally, these 
commenters took the position that excluding the Web content of these 
third parties was a ``loophole'' to providing full access and that 
covered entities must be responsible for the content on their Web site, 
regardless of its origin.
    After considering these comments, the Department is considering 
proposing certain limited exceptions related to third-party content. It 
is important to note, however, that even if the Department were to 
except Web content

[[Page 28670]]

posted by third parties on public entities' Web sites, the Department 
is considering proposing that public entities would still be 
responsible for ensuring that the platforms they provide for posting 
third-party Web content comply with any Web access rule.
1. Linked Third-Party Web Content
    Many public entities' Web sites include links to other Web sites 
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 
Web site and send the individual to the Web site of a third party. 
Typically, the public entity has no responsibility for the Web content 
or the operation of the third party's Web site. The Department is 
considering proposing an exception to a Web access rule so that a 
public entity would not be responsible for the accessibility of a 
third-party Web site or Web content linked from the public entity's Web 
site unless the public entity uses the third-party Web sites or Web 
content to allow members of the public to participate in or benefit 
from its services, programs, or activities. A proposed exception may 
look like the following:

    Third-party Web content linked from the public entity's Web site 
is not required to comply with the Web access standards unless the 
public entity uses the third-party Web site or Web content to allow 
members of the public to participate in or benefit from the public 
entity's services, programs, or activities.

    Such an exception generally would allow public entities to provide 
relevant links to third-party Web sites or Web content that may be 
helpful without making them liable for the third party's Web content. 
However, the Department's title II regulation prohibits discrimination 
in the provision of any aid, benefit, or service provided by public 
entities directly or through contractual, licensing, or other 
arrangements. See generally 28 CFR 35.130(b)(1). Therefore, if a public 
entity uses the third-party Web site or Web content to allow members of 
the public to participate in or benefit from its services, programs, or 
activities, under any exception the Department may propose the public 
entity would be required to use third-party Web sites or Web content 
that comply with the Web access requirements of a final rule. Thus, a 
public entity that uses online payment processing services offered by a 
third party to accept the payment of fees, parking tickets, or taxes 
would be required to ensure that the third-party Web site and Web 
content complies with the Web access requirements. Similarly, if a 
public entity contracts or otherwise uses a third party to process 
applications for benefits, to sign up for classes, or to attend 
programs the public entity offers, the public entity would be required 
to ensure that the third party's Web site and Web content complies with 
the Web access rule. On the other hand, if a public entity provides a 
link to third-party Web content for informational or resource purposes 
only, then access by constituents is not required in order to 
participate in the public entity's services, programs, or activities, 
and the linked third-party Web content would not be required to be 
accessible.
    Question 23: Are there additional issues that the Department should 
take into consideration with regard to linked third-party Web content? 
Has the Department made clear which linked third-party Web content it 
is considering covering and which linked third-party Web content the 
Department is considering excepting from coverage under a proposed 
rule? Why or why not?
2. Web Content Posted by a Third Party
    The Department is considering generally excepting Web content 
posted by third parties on public entities' Web sites from compliance 
with WCAG 2.0 Level AA. However, the Department is considering 
requiring Web content posted by a third party that is essential for 
engaging in civic participation to comply with WCAG 2.0 Level AA.
    The basis for this exception is that a public entity generally does 
not have control over the volume or substance of content posted by a 
third party on the public entity's Web site. To the extent that any 
content is reviewed by the public entity before it is posted, such 
review often is cursory or limited to automated pre-screening to 
prevent fraud, abusive language, or spamming. Public entities may not 
even be aware of when third parties post content on the public 
entities' Web sites. Where the posting of third-party Web content 
occurs in such an automated fashion, without notice to the public 
entity, the public entity may lack the practical capacity under these 
circumstances to make such material accessible.
    The Department believes, however, that there are times when access 
to content posted by third parties on a public entity's Web site may be 
so essential for engaging in civic participation that the public entity 
should be required to make the Web content accessible. An example of 
third-party content which the Department would consider essential to 
engaging in civic participation is when a State seeks formal public 
comment on a proposed regulation and those comments are posted on the 
State Web site. Often the period for public comment is time sensitive, 
transparency is crucial, and a State will review and consider all such 
comments in finalizing its regulation. As such, it is vitally important 
that individuals with disabilities have access to that Web content, 
whether for framing their own comments, raising important points, 
reviewing and responding to comments posted by others, or evaluating 
the basis for the State's ultimate decision.
    The Department notes that Web content created by a third party that 
a public entity decides to post itself would still be subject to WCAG 
2.0 Level AA. The Department believes that a public entity should be 
responsible for Web content that it posts on its own initiative, even 
if the content is originally created or authored by a third party. In 
addition, if the Department were to except Web content posted by third 
parties as above, such an exception would provide public entities with 
a greater ability to direct their resources toward ensuring that the 
Web content the public entities themselves make available to the public 
is accessible.
    Question 24: The Department intends the phrase ``content posted by 
a third party on a public entity's Web site'' to mean content that a 
third party creates and elects to make available on the public entity's 
Web site. Does the Department's use of the term ``posted'' in this 
context create confusion, and if so, is there another term that would 
be more appropriate for purposes of this exception?
    Question 25: The Department requests public comment on whether the 
Department's rule should except from coverage almost all Web content 
posted by third parties on public entities' Web sites. The Department 
is also interested in obtaining information about what type of Web 
content is posted by third parties on Web sites of public entities 
(e.g., whether it contains only text, or includes images, videos, audio 
content, and other forms of media)?
    Question 26: How much content is posted by third parties on public 
entities' Web sites and how frequently? Please provide as much 
information as possible, including any supporting data.
    Question 27: To what extent are public entities on notice of 
postings by third parties on their Web sites? To what extent do public 
entities affirmatively decide what, or how much, third-party Web 
content can be posted on their Web sites? If public entities do 
affirmatively decide what, or how much, third-party

[[Page 28671]]

Web content to post on their Web sites, please describe how that 
process works and what factors public entities consider when making 
such decisions?
    Question 28: What Web content posted by third parties do you 
consider essential to access in order to engage in civic participation? 
Is ``essential for engaging in civic participation'' the appropriate 
standard for determining whether Web content posted by third parties 
needs to be made accessible to individuals with disabilities? Please 
provide as much information as possible, including any supporting 
material for your views.
    Question 29: What factors should the Department consider when 
framing the obligation for public entities to make accessible the Web 
content posted by third parties that is essential for engaging in civic 
participation? Please provide as much information as possible, 
including any supporting data.
    Question 30: Is there other third-party Web content that, while not 
essential for engaging in civic participation, the public entity 
controls and should not be included within such an exception? How would 
the Department define that control? How would the Department measure 
and evaluate that control? Why, in your view, should that third-party 
Web content be excluded from any such exception? Please provide as much 
information as possible, including any supporting data.
    Question 31: If the Department adopts an exception along the lines 
currently under consideration, will it prevent constituents with 
disabilities from accessing important information on public entities' 
Web sites concerning public entities' services, programs, or 
activities? Please provide as much information as possible, including 
any supporting data for your views.
    Question 32: Are there other issues that the Department should take 
into consideration with regard to the exception under consideration?
3. Third-Party Filings in Judicial and Quasi-Judicial Administrative 
Proceedings
    While access to third-party filings in judicial and quasi-judicial 
administrative proceedings would seemingly fit within the category of 
information essential to access in order to engage in civic 
participation, the Department is considering including these types of 
filings within the exception for third-party content posted on a public 
entity's Web site. Courts and administrative agencies can receive vast 
amounts of third-party filings (i.e., filings made by third parties, 
not by public entities) in these types of proceedings each year. Some 
public entities have either implemented an automated process for 
electronic filing of court documents in legal proceedings via their Web 
sites or are now beginning to require such a process. After these 
documents are submitted, some public entities make the electronic 
record of a case or administrative adjudicatory proceeding available on 
their Web sites. These conventional electronic documents, submitted by 
third parties, often include lengthy appendices, exhibits, or other 
similar supplementary materials that may not be accessible. For 
example, in a court proceeding, a litigant may submit a brief and 
exhibits in support of the brief. The exhibits can include a variety of 
materials (e.g., a written contract, a receipt, a handwritten note, a 
photograph, a map, or a schematic drawing of a building) to provide 
support for the propositions asserted in the brief. Items, such as maps 
or schematic drawings, are inherently visual and cannot easily be made 
accessible or, in some instances, cannot be made completely accessible. 
Even when submissions are purely textual documents that are created 
electronically using word processing software, which can be made 
accessible easily, the submission may not be in compliance with the 
accessibility standards contemplated by the Department for its proposed 
rule, WCAG 2.0 Level AA, if the author of the document did not format 
the document correctly. Because of the sheer volume of documents public 
entities receive from third parties in these judicial proceedings and 
quasi-judicial administrative proceedings, the Department is concerned 
that it would not be practical to make public entities responsible for 
ensuring that these kinds of filings by third parties are accessible. 
Moreover, the need for immediate access to these kinds of documents may 
generally be confined to a small group, such as parties to a particular 
proceeding.
    However, if the Department were to include within the exception 
from any Web access requirements third-party filings in judicial 
proceedings or quasi-judicial administrative proceedings, the 
Department would make clear that individual requests for access to 
these excepted documents would need to be addressed on a case-by-case 
basis in order to ensure that individuals with disabilities are able to 
receive the benefits or services of the public entity's records program 
through other effective means. Under title II, it is the responsibility 
of the public entity that is making the electronic record available to 
the public to also make these documents accessible to individuals with 
disabilities. In some instances, third parties that create or submit 
individual documents may also have an independent obligation to make 
these documents accessible to individuals with disabilities. However, 
that independent obligation would not extinguish the duty of public 
entities under such a proposed exception to provide alternative access 
to third-party documents that are posted on their Web sites to 
individuals with disabilities that request access to them. As noted 
earlier, the current ADA regulation states that ``[i]n order to be 
effective, auxiliary aids and services must be provided in accessible 
formats, in a timely manner, and in such a way as to protect the 
privacy and independence of the individual with a disability.'' 28 CFR 
35.160(b)(2) (emphasis added). Because of the nature of legal 
proceedings, it is imperative that individuals with disabilities be 
provided timely access to the documents to which they request access so 
that they can take part in the legal process in a manner equal to that 
afforded to others.
    The Department seeks public comment on the exception it is 
considering and has posed several questions.
    Question 33: On average, how many third-party submissions in 
judicial proceedings or quasi-judicial administrative proceedings does 
a public entity receive each week or each month? How much staff do 
public entities have available with the expertise to make such 
documents accessible? How many staff hours would need to be devoted to 
making such documents accessible? Please provide as much information as 
possible, including any supporting data. Has the Department made clear 
that if an exception were to provide that this content would not need 
to be made accessible on a public entity's Web site, public entities 
would continue to have obligations under the current title II 
requirements to make individual documents accessible to an individual 
with a disability on a case-by-case basis? If not, why not?
    Question 34: The Department is also interested in obtaining 
information about what types of third-party Web content in judicial and 
quasi-judicial administrative proceedings are posted on public 
entities' Web sites (e.g., how much of it is text, how much contains 
images, videos, audio content, or other forms of media)? Please provide 
as much information as possible, including any supporting data.

[[Page 28672]]

    Question 35: If the Department adopts an exception along the lines 
currently under consideration, will it prevent citizens with 
disabilities from accessing important information concerning public 
entities' services, programs, or activities on public entities' Web 
sites? Please provide as much information as possible, including any 
supporting data for your views.
    Question 36: Are there other issues or other factors that the 
Department should take into consideration with regard to this proposal 
regarding third-party filings in judicial and quasi-judicial 
administrative proceedings?
4. Third-Party Social Media Platforms
    Public entities are increasingly using third-party platforms, 
including social media platforms, to host forums for public discourse 
or to provide information about their services, programs, and 
activities in lieu of or in addition to hosting such forums and 
information on their own Web sites. At this time, the Department is 
considering deferring, in any proposed rule for Web access for public 
entities, proposing a specific technical accessibility standard that 
would apply to public entities' use of third-party social media 
platforms until the Department issues a rulemaking for public 
accommodations addressing Web site accessibility under title III. For 
the purposes of this possible deferral, third-party social media 
platforms would refer to Web sites 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 Web sites such as, 
for example, Facebook, YouTube, Twitter, and LinkedIn). The only social 
media platforms that the Department is aware of are public 
accommodations covered by title III, thus, the Department believes it 
may be appropriate to defer addressing social media platforms for this 
title II rulemaking until it issues a proposed title III Web 
accessibility regulation.
    Although the Department is considering deferring application of a 
technical standard to third-party social media Web sites that public 
entities use to provide services, programs, or activities, public 
entities would continue to have obligations under title II of the ADA 
to provide persons with disabilities access to these online services, 
programs, or activities. Under title II, a public entity must ensure 
that ``[n]o qualified individual with a disability shall, on the basis 
of disability, be excluded from participation in or be denied the 
benefits of the services, programs, or activities of a public entity, 
or be subjected to discrimination by any public entity,'' and must 
refrain from using methods of administration that would subject 
qualified individuals with disabilities to discrimination on the basis 
of disability. See 35 CFR 35.130(a) and 35.130(b)(3). Thus, when using 
a third-party social media Web site to implement its services, 
programs, or activities, a public entity is required to ensure access 
to that content for individuals with disabilities through other means. 
For example, if a public entity publishes information about an upcoming 
event on a third-party social media Web site, it must ensure that the 
same information about the event is also available to individuals with 
disabilities elsewhere, such as on the public entity's accessible Web 
site. Likewise, if a public entity solicits public feedback on an issue 
via a social media platform, the public entity must provide an 
alternative way to invite and receive feedback from person with 
disabilities on that topic.
    Question 37: Are there any social media platforms that are covered 
by title II of the ADA that the Department should be aware of? Please 
provide as much information as possible in your response.
    Question 38: Please provide any other information or issues that 
the Department should consider with regard to a proposal to defer 
applying a technical standard to public entities' use of social media 
Web sites.

D. Password-Protected Web Content of Public Educational Institutions

    Public educational institutions (i.e., public elementary and 
secondary schools and public postsecondary institutions), like many 
other public institutions, use their Web sites to provide a variety of 
services, programs, and activities to members of the public. Many of 
the services, programs, and activities on these Web sites are available 
to anyone--access simply requires an Internet connection and the 
relevant Web site address, which can be obtained using a search engine. 
The content on these public Web sites can include such general 
information as the academic calendar, enrollment process, admission 
requirements, school lunch menus, school policies and procedures, and 
contact information of school, college, or university administrators. 
Under the Web access rule under consideration by the Department, all 
such services, programs, or activities available to the public on the 
Web sites of public educational institutions would be required to 
comply with the technical standards the Department adopts.
    In addition to the information available to the general public on 
the Web sites of public educational institutions, however, the Web 
sites of many schools, colleges, and universities also make certain 
services, programs, and activities available to a discrete and targeted 
audience of individuals (e.g., students taking particular classes or 
courses). This information is often provided using a Learning 
Management System (LMS) or similar platform that can provide secure 
online access and allow the exchange of educational and administrative 
information in real time. LMSs allow public educational institutions 
and institutions' faculty and staff to exchange with students specific 
information about the course, class, or student's progress. For 
example, faculty and staff can create and collect assignments, post 
grades, provide real-time feedback, and share subject-specific media, 
documents, and other resources to supplement and enrich the curriculum. 
Parents can track their children's attendance, assignments, 
individualized education programs (IEPs), grades, and upcoming class 
events. To access the information available on these platforms, 
students--and parents in certain contexts--generally must obtain 
password or login credentials from the educational institution.
    Under the ADA, public entities are prohibited from providing any 
aid, benefit, or service directly, or through contracting, that 
discriminates against individuals with disabilities. See 28 CFR 
35.130(b). The Department is therefore considering proposing a 
provision that would require that the LMS or other educational 
platforms that public elementary and secondary schools, colleges, and 
universities use be readily accessible in accordance with a Web access 
rule. However, because access to password-protected class or course Web 
content is limited to a discrete population, which may not always 
include a person with a disability, the Department is also considering 
a provision that would not require the content available on these 
password-protected class or course pages to be made accessible unless 
and until a student with a disability enrolls in such a class or 
course. For example, a blind university student may not have enrolled 
in a psychology course, or a deaf high school student may not have 
enrolled in a particular ninth grade world history class. As such, the 
Department is considering a proposal to except content available on 
password-protected Web sites for specific classes

[[Page 28673]]

or courses unless and until a student enrolls in that particular class 
or course and, because of a disability, that student would be unable to 
access the content posted on the password-protected Web site for that 
class or course. However, under the proposal under consideration by the 
Department, once a student with a disability has enrolled in a 
particular class or course, the content available on the password-
protected Web site for the specific class or course would need to be 
made accessible in a timely manner.
    The Department is also concerned about the rights of parents with 
disabilities, particularly in the public elementary and secondary 
school context. Because parents of students in these contexts have 
greater rights, roles, and responsibilities with regard to their 
children and their children's education than may be present in the 
postsecondary education setting, and because these parents interact 
with such schools much more and in much greater depth and detail, the 
Department currently is considering expressly including parents with 
disabilities in any proposed exception and subsequent limitation for 
password-protected Web content. (The Department notes that the term 
``parent'' in any proposed regulation would be intended to include, at 
present, natural, adoptive, step-, or foster parents, legal guardians, 
or other individuals recognized under Federal or State law as having 
parental rights.) Parents use educational platforms to access progress 
reports and grades, track homework and long-term project assignments, 
interact regularly with their children's teachers and administrators, 
and follow IEP plans and progress. Thus, under the proposal currently 
under consideration by the Department, once a student is enrolled in a 
particular class or course and that student has a parent with a 
disability, the content available on the password-protected Web site 
would also be required to be made accessible in a timely manner.
    Public educational institutions are required to make the 
appropriate modifications and provide the necessary auxiliary aids and 
services to students with disabilities. It is the public institution, 
not the student, that is responsible for ensuring that the required 
modifications are made and necessary auxiliary aids and services are 
provided once it is on notice of a student's need. Such institutions, 
therefore, must think prospectively regarding the access needs of its 
students with disabilities, including those who would be unable to 
access course content on an inaccessible Web site. This also means that 
institutions should not expect or require that a student with a 
disability, whom the institution knows is unable to access content on 
an inaccessible Web site, first attempt to access the information and 
be unable to do so before the institution's obligation to make the 
content accessible arises.
    The Department believes that considering a proposal for public 
educational institutions along these lines would provide a balanced 
approach, ensuring access to students with disabilities enrolled in a 
public educational institution while recognizing that there are large 
amounts of class or course content that may never need to be accessed 
by individuals with disabilities because they have not enrolled in a 
particular class or course.
    The exception under consideration by the Department is not intended 
to apply to password-protected content for classes or courses, that are 
made available to the general public without enrolling at a particular 
educational institution and that generally only require perfunctory, if 
any, registration or payment to participate in the classes or courses, 
including those offered exclusively online (e.g., many Massive Open 
Online Courses (MOOCs)). Access to the content on these password-
protected Web sites is not confined to a discrete student population 
within an educational institution, but is instead widely available to 
the general public--sometimes without limits as to enrollment. 
Accordingly, any individual, including one with a disability, may 
enroll or participate at almost any time. Under these circumstances, it 
is the Department's position that the public entity should make such 
class or course content accessible from the outset of the class or 
course regardless of whether a student with a disability is known to be 
participating in the class or course because a student with a 
disability, like any other student, may enroll at any time. The 
Department seeks public comment on a number of issues implicated by the 
proposed exception that the Department is considering for public 
educational institutions' password-protected Web content.
    Question 39: Does the Department's exception, as contemplated, take 
into account how public educational institutions use password-protected 
Web content? What kinds of tasks are students with disabilities or 
parents with disabilities performing on public educational 
institutions' Web sites?
    Question 40: How do public educational institutions communicate 
general information to their student bodies and how do they communicate 
class- or course-specific information to their students via Web sites?
    Question 41: On average, how much and what type of content do 
password-protected course Web sites contain? How much time does it take 
a public entity to make the content on a password-protected course Web 
site accessible? Once a public educational institution is on notice 
that a student is enrolled in a class or course, how much time should a 
public educational institution be given to make the content on a 
password-protected course Web site accessible? How much delay in 
accessing course content can a student reasonably overcome in order to 
have an equal opportunity to succeed in a course?
    Question 42: Do public elementary or secondary schools combine and 
make available content for all students in a particular grade or 
particular classes (e.g., all ninth graders in a school or all 
secondary students taking chemistry in the same semester) using a 
single password-protected Web site?
    Question 43: Is the Department's proposed terminology to explain 
who it considers to be a parent in the educational context clear? If 
not, why not? If alternate terminology is appropriate, please provide 
that terminology and data to support your position that an alternate 
term should be used.
    Question 44: Should the Department require that password-protected 
Web content be accessible to parents with disabilities who have a 
postsecondary student enrolled in a particular class or course?
    Question 45: How and when do public postsecondary educational 
institutions receive notice that a student who, because of a 
disability, would be unable to access content on an inaccessible Web 
site is newly enrolled in a school, class, or course?
    Question 46: When are public elementary and secondary students 
generally assigned or enrolled in classes or courses? For all but new 
students to a public elementary or secondary school, does such 
enrollment generally occur in the previous semester? If not, when do 
such enrollments and assignments generally occur?
    Question 47: Are there other factors the Department should consider 
with regard to password-protected Web content of public educational 
institutions? Please provide as much detail as possible in your 
response.

IV. Conforming Alternate Versions

    The Department is considering allowing the use of conforming 
alternate

[[Page 28674]]

versions to provide access to Web content for individuals with 
disabilities in two limited circumstances that are discussed below. In 
order to comply with WCAG 2.0, Web content must satisfy one of the 
defined levels of conformance (i.e., Level A, Level AA, or Level AAA) 
or a separate accessible Web page must be provided that satisfies one 
of the defined levels of conformance as an alternative to the 
inaccessible Web page. These separate accessible Web pages are referred 
to as ``conforming alternate versions'' in WCAG 2.0. WCAG 2.0 describes 
``conforming alternate version'' as a separate Web page that is 
accessible, up-to-date, contains the same information and functionality 
as the inaccessible Web page, and, therefore, can provide individuals 
with disabilities equivalent access to the information and 
functionality provided to individuals without disabilities. See 
W3C[supreg], Understanding WCAG 2.0: Understanding Conforming Alternate 
Versions (Dec. 2012), available at https://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-conforming-alt-versions-head (last visited 
Apr. 13, 2016). The W3C[supreg] explains that providing a conforming 
alternate version of a Web page is intended to be a ``fallback option 
for conformance to WCAG and the preferred method of conformance is to 
make all content directly accessible.'' Id.
    The Department is concerned that WCAG 2.0 will be interpreted to 
permit the development of two separate Web sites--one for individuals 
with disabilities and another for individuals without disabilities--
even when doing so is unnecessary. The Department is also concerned 
that the creation of separate Web sites for individuals with 
disabilities may result in unequal access to information and 
functionality. However, as the W3C[supreg] explains, certain limited 
circumstances may warrant the use of conforming alternate versions of 
Web pages. For example, a conforming alternate Web page may be 
necessary when a new emerging technology is used on a Web page, but the 
technology is not yet accessibility supported (i.e., the technology is 
not yet able to be made accessible) or when a Web site owner is legally 
prohibited from modifying the Web content. Id. The Department is 
considering permitting the use of conforming alternate versions of Web 
page and Web content, as defined by 2008 WCAG 2.0, to comply with Web 
accessibility requirements only under the following two circumstances:

    (1) when it is not possible to make Web content directly 
accessible due to technical or legal limitations; or
    (2) when used to provide access to conventional electronic 
documents.

    Under this approach, it would not be permissible for public 
entities to provide conforming alternate versions in cases where making 
the main Web site accessible would result in an undue financial and 
administrative burden. As discussed below, in section V. ``Compliance 
Limitations and Other Duties,'' public entities are required to make 
their main Web sites accessible up to the point that full compliance 
with the proposed technical standard is an undue financial and 
administrative burden. The Department would not, at that point, also 
require the public entity to expend significant additional resources to 
develop a separate accessible and up-to-date Web site that contains the 
same information and functionality as the inaccessible Web content.

A. Technical or Legal Limitations

    The Department believes persons with disabilities must be provided 
access to the same Web content that is available to persons without 
disabilities unless providing direct access to that Web content to 
persons with disabilities is not possible due to technical or legal 
limitations. The Department's proposed approach under the ADA would be 
slightly different than WCAG 2.0 because under WCAG 2.0 public 
entities, despite the W3C[supreg] guidance, can always choose to 
provide a conforming alternate version of a Web page to conform to WCAG 
2.0 rather than providing Web content on the Web page that is directly 
accessible, even when doing so is unnecessary. Thus, the Department's 
proposal under consideration would permit the use of conforming 
alternate versions of Web pages and Web content to comply with Web 
accessibility requirements only where it is not possible to make Web 
pages and Web content directly accessible due to technical limitations 
(e.g., technology is not yet accessibility supported) or legal 
limitations (e.g., Web content is protected by copyright). The 
responsibility for demonstrating a technical or legal limitation would 
rest with the covered entity.
    For many individuals with disabilities, having direct access to a 
main Web page that is accessible is likely to provide the best user 
experience; however, the Department is aware that for some individuals 
with disabilities a Web page specifically tailored to accommodate their 
specific disability may provide a better experience. Nonetheless, 
requiring all individuals with disabilities who could have a better 
experience using the main Web page to use a separate or segregated Web 
page created to accommodate certain disabilities is concerning and 
inconsistent with the ADA's integration principles. 28 CFR 
35.130(b)(2). Still, the Department's proposal under consideration 
would not prohibit public entities from providing alternate versions of 
Web pages in addition to its accessible main Web page to provide users 
with certain types of disabilities a better experience.

B. Providing Access to Conventional Electronic Documents

    With regard to conventional electronic documents (e.g., PDFs, word 
processing documents, or other similar electronic documents) the 
Department is considering proposing that where a public entity provides 
more than one version of a single document, only one version of the 
document would need to be accessible and, thus, that accessible version 
would be the conforming alternate version for the inaccessible version. 
For example, if a public entity provides both PDF and Microsoft Word 
versions of a single document, either the PDF or the Microsoft Word 
document would need to comply with WCAG 2.0, but both would not need to 
comply. Therefore, in this example, a public entity would not be 
required to remediate an inaccessible PDF where a WCAG 2.0-compliant 
Microsoft Word version is also provided on the public entity's Web site 
(i.e., the Microsoft Word document acts as a conforming alternate 
version providing accessible information to individuals with 
disabilities).
    The Department is concerned about the work it may take to make 
multiple versions of the same conventional electronic documents 
accessible, particularly when public entities are already providing 
persons with disabilities access to the information contained in those 
documents. Additionally, making more than one format accessible may not 
improve the access to or experience of the document's content for 
individuals with disabilities. In the context of conventional 
electronic documents, the Department does not believe the same risks of 
separate and unequal access are necessarily present that may occur when 
using conforming alternate versions for other types of Web content and 
Web pages, which can lead to the unnecessary development of separate 
Web sites or unequal services for individuals with disabilities. It 
seems to the Department that conventional

[[Page 28675]]

electronic documents are updated less frequently than Web pages and are 
often replaced in their entirety by new versions of the documents. In 
contrast, it appears that other types of Web content and Web pages are 
often updated piecemeal, increasing the possibility that the content on 
the alternate accessible Web page may not be updated concurrently and 
therefore would not be the same as that provided on the primary Web 
page. Because conventional electronic documents do not appear to be 
updated as frequently as Web pages and generally do not change unless 
they are replaced in their entirety by another version of the document, 
the risk that individuals with disabilities would not get the same 
content or services as those without disabilities seems relatively low. 
The approach with regard to conforming alternate versions the 
Department is considering is consistent with the U.S. Access Board's 
approach in its Notice of Proposed Rulemaking on section 508. 80 FR 
10880 (Feb. 27, 2015).
    Question 48: Has the Department made clear the two circumstances 
under which conforming alternate versions of Web pages or Web content 
would be permissible? Please provide as much detail as possible in your 
response.
    Question 49: Are there other instances where the Department should 
consider permitting the use of conforming alternate versions of Web 
pages or Web content? Please provide as much detail as possible in your 
response.
    Question 50: Are there any issues or considerations the Department 
should take into account regarding its proposal to permit the use of 
conforming alternate versions of Web pages or Web content only where it 
is not possible to make Web pages and Web content directly accessible 
to persons with disabilities due to technical or legal limitations? Are 
there any additional issues or information regarding conforming 
alternate versions of a Web page or Web content that the Department 
should consider? Please provide as much detail as possible in your 
response.
    Question 51: Should the Department consider permitting the use of 
conforming alternate versions to provide access to conventional 
electronic documents when multiple versions of the document exist? If 
so, why? Are there considerations or concerns regarding whether 
allowing conforming alternate versions in these specific instances 
would subject individuals with disabilities to different or inferior 
services? Please provide as much detail as possible in your response.

V. Compliance Limitations and Other Duties

    The Department is considering a proposal that would provide that in 
meeting any access requirements in a Web accessibility rule, a public 
entity would not be required to take any action that would result in a 
fundamental alteration or undue financial and administrative burden. 
The limitations under consideration would be consistent with the 
compliance limitations currently provided in the title II regulation in 
28 CFR 35.130(b)(7) (reasonable modifications in policies, practices, 
or procedures), 35.150(a)(3) (program accessibility), and 35.164 
(effective communication) and, thus, are familiar to public entities. 
The regulatory text under consideration may look like the following:

    (a) Where a public entity can demonstrate that full compliance 
with Web accessibility requirements would result in a fundamental 
alteration in the nature of a service, program, or activity or in 
undue financial and administrative burdens, compliance with Web 
accessibility requirements 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 Web 
accessibility requirements 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 
his or her 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.
    (b) A public entity that has complied with (a) above is not 
required to make any further modifications to its Web site to 
accommodate an individual with a disability who cannot access the 
information, service, program, or activity on the public entity's 
Web site. However, the public entity must utilize an alternative 
method of providing the individual with a disability equal access to 
that information, 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 undue financial and administrative burdens.

    Generally, the Department believes that it would not be a 
fundamental alteration of a public entity's online services, programs 
or activities to modify a Web site or Web content in order to make it 
accessible and ensure access for individuals with disabilities to such 
services, programs or activities. Moreover, like the limitations in the 
title II regulation referenced above, the Department does not believe 
that such a proposal would relieve a public entity of all obligations 
to individuals with disabilities. Although a public entity would not be 
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 would be required to comply 
with the Web accessibility requirements under consideration to the 
extent they do not result in a fundamental alteration or undue 
financial and administrative burdens. For instance, a public entity 
might determine that full compliance with WCAG 2.0 Level AA would 
result in a fundamental alteration or undue financial and 
administrative burdens. However, this same public entity would then be 
required to determine whether it can bring its Web content into partial 
compliance with Level AA. To the extent it can, the public entity would 
be required to do so.
    The Department believes that there are many steps a public entity 
could take to comply with WCAG 2.0 Level AA that would not result in 
undue financial and administrative burdens and that most entities that 
would assert a claim that full compliance would result in undue 
financial and administrative burdens would be able to attain compliance 
with at least some of the requirements of WCAG 2.0 Level AA. For 
instance, a public entity may be able to edit its Web content so that 
all non-text content (e.g., images) has a text alternative that 
contains an equivalent written description enabling an individual's 
screen reader to interpret the image or non-text to allow the 
individual to access the information. A public entity may also be able 
to provide skip navigation links so users with screen readers can skip 
past the navigation headers to the main information on the Web page. 
Most public entities also could easily ensure that each Web page has a 
title that describes the topic or purpose of that page, making it 
easier for individuals navigating the Web content with a screen reader 
to determine if a particular Web page has the content they are looking 
for without having the screen reader read through all the content on 
the page. These and other

[[Page 28676]]

requirements of WCAG 2.0 Level AA are not, in the Department's view, 
likely to be difficult or unduly burdensome for a public entity.
    In determining whether an action constitutes 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 would need to be considered. The burden of proving that 
compliance with Web accessibility requirements under consideration 
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 title II regulation has provided since 
the Department's adoption 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 the head's designee and must be 
memorialized with a written statement of the reasons for reaching that 
conclusion. See 28 CFR 35.150(a)(3) and The Americans with Disabilities 
Act Title II Technical Assistance Manual: Covering State and Local 
Government Programs and Services (Nov. 1993), available at https://www.ada.gov/taman2.html. The Department recognizes that some public 
entities may have difficulty identifying the official responsible for 
this determination, given the variety of organizational structures 
among public entities and their components. 28 CFR part 35, app. B, 695 
(2015). The proposal the Department is considering would make it 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, as is true under the existing title II 
regulation.
    As contemplated by the Department in paragraph (b) above, once a 
public entity has complied with WCAG 2.0 Level AA, it would not be 
required to make further modifications to its Web page or Web content 
to accommodate an individual who is still unable to access the Web page 
or Web content due to a disability. While the Department realizes that 
the Web accessibility requirements under consideration may not meet the 
needs of and provide access to every individual with a disability, it 
believes that setting a consistent and enforceable Web accessibility 
standard that meets the needs of a majority of individuals with 
disabilities would provide greater predictability for public entities, 
as well as greater assurance of accessibility for individuals with 
disabilities.
    As noted above, full compliance with the Web accessibility 
requirements under consideration means a public entity would not be 
required to make any further modifications to its Web page or Web 
content if an individual with a disability is still unable to access 
information on the public entity's accessible Web page. However, public 
entities would still have an obligation to provide the individual with 
a disability an alternative method of access to that information, 
service, program, or activity unless the public entity could 
demonstrate that alternative methods of access would result in a 
fundamental alteration or in undue financial and administrative 
burdens. Thus, full compliance with the Web accessibility standards 
would not mean necessarily full compliance with all of a public 
entity's obligations under the ADA. In these circumstances, a public 
entity would still need to take other steps to ensure that an 
individual with a disability is able to gain access through other 
effective means, although no further changes to its Web site would be 
required. This could be accomplished in a variety of ways, including 
ensuring that the information or services could be accessed by 
telephone or in person.
    The Department would emphasize in a proposed rule that the public 
entity must make the determination on a case-by-case basis of how best 
to accommodate those individuals who cannot access the information or 
services through the public entity's fully compliant Web site. The 
Department also intends to convey that a public entity should refer to 
the existing title II regulation at 28 CFR 35.160 (effective 
communication) to determine its obligations to provide individuals with 
communication disabilities with the appropriate auxiliary aids and 
services necessary to afford them an equal opportunity to participate 
in, and enjoy the benefits of, the public entity's service, program, or 
activity. For individuals with other disabilities who are unable to 
access all the information or services provided through a public 
entity's fully compliant Web site, a public entity should refer to 28 
CFR 35.130(b)(7) (reasonable modifications) to determine what 
reasonable modifications in policies, practices, or procedures are 
necessary to avoid discrimination on the basis of disability. Under any 
proposal it advances, the Department will strongly recommend that the 
public entity provide notice to the public on how an individual who 
cannot use the Web site because of a disability can request other means 
of effective communication or reasonable modifications in order to 
access the information or to participate in the public entity's 
services, programs, or activities that are being provided on the public 
entity's Web site. For example, a public entity could provide an email 
address, link, Web page, or other means of contacting the public entity 
to address issues that individuals with disabilities may encounter when 
accessing Web content. The Department seeks additional information with 
regard to compliance limitations and other duties. Please refer to 
Question 100 in section VI.C.8 ``Compliance Limitations.''

VI. Additional Issues for Public Comment

A. Measuring Compliance

    As noted in the 2010 ANPRM, the Department believes that while 
there is a need to adopt specific standards for public entities to use 
in order to ensure that their Web content is accessible to individuals 
with disabilities, the Department must move forward with care, weighing 
the interests of all stakeholders, so that as accessibility for 
individuals with disabilities is improved, innovation in the use of the 
Web by covered entities is not hampered. See 75 FR 43460, 43464 (July 
26, 2010). The Department appreciates that the dynamic nature of Web 
sites presents unique compliance challenges. Therefore, the Department 
is also seeking public comment on issues concerning how best to measure 
compliance with the Web accessibility requirements it is considering 
proposing.
    The Department is concerned that the type of ADA compliance 
measures it currently uses, such as the one used to assess compliance 
with the ADA Standards, may not be practical in the Web context. The 
ADA requires the facilities of public entities to be designed and 
constructed in such a manner that the facilities are readily accessible 
to and usable by individuals with disabilities. 42 U.S.C. 12146. Public 
entities must ensure that newly designed and constructed State and 
local government facilities are in full compliance with the scoping and 
technical specifications in the ADA Standards unless it is structurally 
impracticable to do so. 28 CFR 35.151(a). When making an alteration to 
a facility that affects or could affect usability, public entities are 
required to make those alterations accessible to the maximum extent 
feasible. 28 CFR 35.151(b).
    Because of the dynamic and interconnected nature of Web sites and

[[Page 28677]]

the large amount of and wide variety of Web content contained on those 
sites, the Department is concerned that a compliance measure similar to 
the one used for buildings--where State and local government facilities 
are to be 100-percent compliant at all times with all of the applicable 
provisions of the ADA Standards, subject to a few applicable compliance 
limitations--may not work well in the Web context. Accordingly, the 
Department is considering what should be the appropriate measure for 
determining compliance with WCAG 2.0 Level AA.
    Question 52: The Department is seeking public comment on how 
compliance with WCAG 2.0 Level AA should be assessed or measured, 
particularly for minor or temporary noncompliance. Should the 
Department consider adopting percentages of Web content that need to be 
accessible or other similar means of measuring compliance? Is there a 
minimum threshold that is an acceptable level of noncompliance for 
purposes of complaint filing or enforcement action? Are there 
circumstances where Web accessibility errors may not be significant 
barriers to accessing the information or functions of the Web site? 
Please provide as much detail as possible in your response.

B. Mobile Applications

    The Department is considering whether it should address the 
accessibility of mobile applications (mobile apps) and, if so, what 
standard it should consider adopting to address the accessibility of 
these mobile apps. As mentioned in section II.A ``The Meaning of `Web 
Content''' above, although the Department's proposal under 
consideration would generally not cover software, the Department is 
soliciting public comment on whether it should address the 
accessibility of mobile apps because public entities seem to be turning 
to mobile apps to provide their services, programs, and activities.
    A mobile app is a software application designed to run on smart 
phones, tablets, or other mobile devices. Today, public entities are 
increasingly using mobile apps to provide services more effectively and 
to reach citizens in new ways. For example, using a city's mobile app, 
residents are able to submit to the city nonemergency service requests, 
such as cleaning graffiti or repairing a streetlight outage, and track 
the status of these requests. Public entities' apps take advantage of 
common features of mobile devices, such as Global Positioning System 
(GPS) and camera functions, so citizens can provide public entities 
with a precise description and location of street-based issues, such as 
potholes or physical barriers created by illegal dumping or parking. 
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. In addition, 
public entities are not only using mobile apps as a new way to provide 
civil services, but are also using them to promote tourism, culture, 
and community initiatives.
    One option for a standard would be to apply WCAG 2.0 Level AA to 
mobile apps of public entities as is being proposed by the Access Board 
in its update to the section 508 standards. See 80 FR 10880 (Feb. 27, 
2015). WCAG 2.0 is designed to apply to Web content available on 
standard Web sites designed for desktop, laptop, or notebook computers, 
as well as Web content available on mobile Web sites designed for smart 
phones, tablets, or other mobile devices. See W3C WAI Addresses Mobile 
Accessibility, WAI Education and Outreach Working Group (Sept. 26, 
2013), available at https://www.w3.org/WAI/mobile/#covered (last visited 
Apr. 13, 2016). WCAG 2.0 is not intended to apply to software, 
including mobile apps; however, as noted by the Access Board in its 
proposed revision to the section 508 standards, the W3C[supreg] 
developed WCAG 2.0 to be technology neutral and there is some support 
suggested for its application to other technologies, including mobile 
apps. See 80 FR 10880, 10895 (Feb. 27, 2015). In fact, the WCAG2ICT 
Task Force developed a W3C[supreg] Working Group Note that addressed 
the issue of applying WCAG 2.0's Success Criteria to offline content 
and software. See Guidance on Applying WCAG 2.0 to Non-Web Information 
and Communications Technologies (WCAG2ICT), WCAG2ICT Task Force, (Sept. 
5, 2013), available at https://www.w3.org/TR/wcag2ict/ (last visited 
Apr. 13, 2016). The WCAG2ICT Task Force found that the majority of WCAG 
2.0's Success Criteria could be applied to software with minimal or no 
changes. Id. However, the WCAG2ICT Task Force acknowledged that the 
W3C[supreg] Working Group Note is a work in progress and does not imply 
endorsement by the W3C[supreg]. Id. (set forth under section titled 
``Status of this Document,'' available at https://www.w3.org/TR/wcag2ict/#sotd) (last visited Apr. 13, 2016).
    Additionally, the Mobile A11Y Task Force, another task force of the 
WAI, developed a W3C[supreg] First Public Working Draft that addressed 
the issue of applying WCAG 2.0 and other W3C[supreg] guidelines to 
mobile apps. See Mobile Accessibility: How WCAG 2.0 and Other W3C/WAI 
Guidelines Apply to Mobile, Mobile A11Y Task Force, (Feb. 26, 2015), 
available at https://www.w3.org/TR/2015/WD-mobile-accessibility-mapping-20150226/ (last visited Apr. 13, 2016). The Mobile A11Y Task Force 
found that although the majority of the WCAG 2.0 Success Criteria can 
be applied to mobile apps, WCAG 2.0 did not provide testable success 
criteria for some of the mobile-specific accessibility issues because 
mobile devices present a mix of accessibility issues that are different 
from typical desktop and notebook computers. The Mobile A11Y Task Force 
recommended supplementing WCAG 2.0 with other W3C[supreg] guidelines 
such as the User Agent Accessibility Guidelines (UAAG) 2.0, available 
at https://www.w3.org/TR/UAAG20/ (last visited Apr. 13, 2016), and the 
Authoring Tool Accessibility Guidelines (ATAG) 2.0, available at https://www.w3.org/TR/ATAG20/ (last visited Apr. 13, 2016). Similar to the 
WCAG2ICT Task Force above, the Mobile A11Y Task Force also acknowledged 
that the W3C[supreg] First Public Working Draft is a work in progress 
and does not imply endorsement by the W3C[supreg]. Id. (set forth under 
section titled Status of this Document, available at https://www.w3.org/TR/2015/WD-mobile-accessibility-mapping-20150226/#sotd) (last visited 
Apr. 13, 2016).
    A second possible option for an accessibility standard to apply to 
mobile apps would be to apply the UAAG, which is also published by the 
W3C[supreg]. The W3C[supreg] has published a draft UAAG 2.0, which 
addresses the accessibility of Web browser software, mobile apps, and 
other software. See User Agent Accessibility Guidelines (UAAG) 2.0, 
W3C[supreg] Working Group Note, (Dec. 15, 2015), available at https://www.w3.org/TR/UAAG20/ (last visited Apr. 13, 2016). UAAG 2.0 is 
currently under development, but the guidelines will likely be 
finalized before the Department publishes a final rule. Once UAAG 2.0 
is finalized, the Department could consider the guidelines for adoption 
as an accessibility standard for mobile apps. Unlike WCAG, however, 
UAAG does not appear to have been widely accepted, but this may be 
attributable to the fact that the most recent final version of the 
guidelines, UAAG 1.0, which was published in 2002, may not be as useful 
in making more current software accessible.
    A third possible option for an accessibility standard to apply to 
mobile apps would be to apply the ATAG,

[[Page 28678]]

which is also published by the W3C[supreg]. The W3C[supreg] published 
the final version of ATAG 2.0 on September 24, 2015. See Authoring Tool 
Accessibility Guidelines (ATAG) 2.0, (Sep. 24, 2015), available at 
https://www.w3.org/TR/ATAG20/ (last visited Apr. 13, 2016). ATAG 2.0 
provides guidelines that address the accessibility of Web content 
authoring tools (i.e., the accessibility of specialized software that 
Web developers and designers use to produce Web content). Like the 
UAAG, ATAG does not appear to have been as widely accepted as WCAG.
    A fourth possible option for an accessibility standard to apply to 
mobile apps would be the Human Factors and Ergonomics Society's ANSI/
HFES 200. See ANSI/HFES 200 Human Factors Engineering of Software User 
Interfaces, Human Factors and Ergonomics Society (2008), available at 
https://www.hfes.org/Publications/ProductDetail.aspx?ProductID=76 (last 
visited Apr. 13, 2016). ANSI/HFES 200 provides requirements to design 
user interfaces of software that are more usable, accessible, and 
consistent. However, like the UAAG and ATAG, ANSI/HFES 200 does not 
appear to be as widely accepted as WCAG.
    Question 53: Should the Department consider adopting accessibility 
requirements for mobile software applications to ensure that services, 
programs, and activities offered by public entities via mobile apps are 
accessible? Please provide any information or issues the Department 
should consider regarding accessibility requirements for mobile apps 
provided by public entities.
    Question 54: The Department is seeking public comment regarding the 
use of WCAG 2.0, UAAG 2.0, ATAG 2.0, or ANSI/HFES 200 as accessibility 
requirements for mobile apps. Are there any issues the Department 
should consider in applying WCAG 2.0, UAAG 2.0, ATAG 2.0, or ANSI/HFES 
200 as accessibility requirements for mobile apps? Is there a 
difference in compliance burdens and costs between the standards? 
Please provide as much detail as possible in your response.
    Question 55: Are there any other accessibility standards or 
effective and feasible alternatives to making the mobile apps of public 
entities accessible that the Department should consider? If so, please 
provide as much detail as possible about these alternatives, including 
information regarding their costs and effectiveness, in your response.

C. Benefits and Costs of Web Access Regulations

    The Department anticipates that any proposed or final rule that the 
Department issues regarding the accessibility of Web information and 
services of public entities would likely have an economically 
significant impact. A proposed regulatory action is deemed to be 
``economically significant'' under section 3(f)(1) of Executive Order 
12866 if it has an annual effect on the economy of $100 million or more 
or would adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. Under Executive Order 12866, regulatory actions that are 
deemed to be economically significant must include a regulatory 
analysis--a report that documents an agency's analysis of the benefits 
and costs of the regulatory action. A benefit-cost analysis must 
include both qualitative and quantitative measurements of the benefits 
and costs of the proposed rule as well as a discussion of each 
potentially effective and reasonably feasible alternative.
    Because this is a SANPRM, the Department is not required to conduct 
a benefit-cost analysis required for other more formal types of agency 
regulatory actions (e.g., notices of proposed rulemaking or final 
rules). The Department, however, is soliciting input from the public in 
this SANPRM to gather information and data that will help the 
Department prepare a regulatory analysis at the next stage of the 
rulemaking process.
    In its 2010 ANPRM, the Department requested public comment on the 
benefits and costs of a proposed rule regarding the accessibility of 
Web information and services of public entities and public 
accommodations. The Department received very little specific 
information or data on the anticipated costs or benefits of such a rule 
in response to the 2010 ANPRM. The Department therefore seeks 
additional information that will enable it to more precisely quantify 
and monetize the economic impact of a rule requiring public entity Web 
sites to be accessible. The Department asks that any responses to these 
requests for public comment on the potential benefits and costs of this 
rule include as much detail as possible and be supported by specific 
data, information, or research where applicable.
 1. Web Accessibility Benefits
    Millions of individuals in the United States have disabilities that 
could affect their use of the Web. Individuals who have vision 
disabilities often confront significant barriers to Web access because, 
among other limitations, many Web sites provide information visually 
without features that enable screen readers or other assistive 
technology to retrieve the information on the Web site so it can be 
presented in an audio or tactile form. Individuals with hearing 
disabilities face accessibility challenges when, for example, audio 
content is not presented in a visual form such as captions or 
transcripts. Individuals with cognitive disabilities can experience 
difficulties in accessing Web content when information cannot be 
presented in a text or audio form, distractions cannot be reduced, or 
time limitations cannot be extended. Individuals with disabilities that 
affect manual dexterity might, for example, need Web sites to allow 
input from specialized hardware and software.
    Lack of accessibility prevents individuals with disabilities from 
taking full advantage of Web-implemented governmental programs, 
services, and activities, which are becoming increasingly common and 
important. The Department believes that Web accessibility will provide 
significant benefits to individuals with disabilities, such as the 
ability to access additional information about government services, 
programs, or activities, and to access this information more quickly, 
easily, and independently. The Department has obtained limited 
information, however, that would enable it to quantify and monetize 
these and other benefits of Web accessibility for individuals with 
disabilities, particularly those with disabilities other than visual 
impairments. For example, it is unclear how much time an individual 
with a hearing disability would save by using an accessible Web site to 
access information about city council hearings instead of attempting to 
obtain this information on an inaccessible Web site or by using a video 
relay service. Similarly, it is unclear what monetary value should be 
associated with this time savings, whether time savings is the most 
appropriate way to measure the monetary value of Web accessibility, or 
if not, how a monetary value could be assigned to the many benefits Web 
accessibility provides to individuals with disabilities.
    As described above, because the Department expects that any 
proposed or final rule it issues regarding the accessibility of Web 
information and

[[Page 28679]]

services of public entities is likely to have an economically 
significant impact, the Department will be required to prepare a 
benefit-cost analysis that assesses the qualitative and quantitative 
benefits of the proposed rule. The Department therefore seeks 
additional information about the benefits of Web accessibility for 
various disability groups that will assist the Department in preparing 
this required benefit-cost analysis. Please include as much information 
as possible to support each of your responses, including specific data 
or research where possible.
a. Benefits for People With Disabilities
    Question 56: How should the monetary value of the benefits of Web 
accessibility to persons with disabilities be measured? What 
methodology should the Department use to calculate the monetary value 
of these benefits? Please provide any available data or research 
regarding the benefits of Web accessibility and the monetary value of 
these benefits.
    Question 57: Are there particular benefits of Web accessibility for 
persons with disabilities that are difficult to quantify (e.g., 
increased independence, autonomy, flexibility, access to information, 
civic engagement, educational attainment, or employment opportunities)? 
Please describe these benefits and provide any information or data that 
could assist the Department in estimating their monetary value.
    Question 58: People with vision disabilities: What data should the 
Department use for estimating the number of people with vision 
disabilities who would benefit from a Web access regulation (e.g., the 
Survey of Income and Program Participation, available at https://www.census.gov/prod/2012pubs/p70-131.pdf, or the American Community 
Survey, available at https://www.disabilitystatistics.org/reports/acs.cfm?statistic=1)? How does Web accessibility benefit people with 
vision disabilities? Please provide any information that can assist the 
Department in quantifying these benefits.
    Question 59: People who are deaf or hard of hearing: What data 
should the Department use for estimating the number of people with 
hearing disabilities who would benefit from a Web access regulation 
(e.g., the Survey of Income and Program Participation, available at 
https://www.census.gov/prod/2012pubs/p70-131.pdf, or the American 
Community Survey, available at https://www.disabilitystatistics.org/reports/acs.cfm?statistic=1)? How does Web accessibility benefit people 
who are deaf or hard of hearing? Is there any data or studies available 
that examine how often people seek and use sound when visiting public 
entity (or other) Web sites? Please provide any information that can 
assist the Department in quantifying these benefits.
    Question 60: People who have disabilities that impair manual 
dexterity: What data should the Department use for estimating the 
number of people with manual dexterity disabilities who would benefit 
from a Web access regulation (e.g., the Survey of Income and Program 
Participation, available at https://www.census.gov/prod/2012pubs/p70-131.pdf, or the American Community Survey, available at https://www.disabilitystatistics.org/reports/acs.cfm?statistic=1)? How does Web 
accessibility benefit people who have disabilities that impair manual 
dexterity? Please provide any information that can assist the 
Department in quantifying these benefits.
    Question 61: People with cognitive disabilities: What data should 
the Department use for estimating the number of people with cognitive 
disabilities who would benefit from a Web access regulation (e.g., the 
Survey of Income and Program Participation, available at https://www.census.gov/prod/2012pubs/p70-131.pdf, or the American Community 
Survey, available at https://www.disabilitystatistics.org/reports/acs.cfm?statistic=1)? How does Web accessibility benefit people with 
cognitive disabilities? Clinical diagnoses of cognitive disabilities 
can sometimes include a wide spectrum of disabilities including 
learning disabilities, developmental disabilities, neurological 
disabilities, and intellectual disabilities. Please provide any 
information that can assist the Department in quantifying these 
benefits. For purposes of quantifying the benefits of a Web 
accessibility rule, should the benefits to individuals with cognitive 
disabilities be treated as one category, or calculated for several 
separate categories (e.g., learning disabilities, developmental 
disabilities, neurological disabilities, intellectual disabilities)? If 
you suggest analyzing different types of cognitive disabilities 
separately, please explain how the benefits for these groups would 
differ (e.g., would someone with dyslexia benefit from Web 
accessibility in ways that someone with a traumatic brain injury would 
not, and if so, how?) and provide any information that can assist the 
Department in quantifying benefits for these groups.
    For the following question, please note that the Department is 
seeking this information for the sole purposes of estimating the rule's 
benefits. The information sought has no bearing on whether an 
individual with a vision or hearing disability or a manual dexterity 
limitation is covered under the ADA and in no way limits coverage of 
these individuals.
    Question 62: The Survey of Income and Program Participation 
classifies people with difficulty seeing, hearing, and grasping into 
``severe'' and ``nonsevere'' categories, and defines each category. 
Should the Department's regulatory impact analysis consider differences 
in disability severity when estimating benefits? Why or why not? If 
disability severity should be taken into account, are there available 
studies or data that address time savings for people with different 
severities of disabilities? If there are no available data or studies 
addressing this issue, how should estimates of time savings 
appropriately account for differences in disability severity, if at 
all?
    Question 63: Are there any other disability groups not mentioned 
above that would benefit from Web accessibility? If so, how would they 
benefit, and how can these benefits be assigned a monetary value?
b. Benefits of Web Usage
    Question 64: What data is available about usage of public entities' 
Web sites by the general population and by persons with disabilities? 
For example, what percentage of the population with disabilities and 
without disabilities accesses public entities' Web sites, and how often 
do they do so? If barriers to Web site accessibility were removed, 
would individuals with disabilities use the Internet at the same rate 
as the general population? Why or why not?
    Question 65: To what extent do persons with disabilities choose not 
to use public entities' Web sites due to accessibility barriers, but 
obtain information or access services available on these Web sites in 
another way? Does this vary between disability groups? If so, how and 
why does it vary?
    Question 66: What are the most common reasons for using public 
entities' Web sites (e.g., to gather information; apply for the public 
entity's services, programs, or activities; communicate with officials; 
request services; make payments)?
    Question 67: If a person with a disability is using a public 
entity's Web site and encounters content that is inaccessible, what do 
they do (e.g., spend longer trying to complete the task online 
themselves, ask someone they know for assistance, call the entity, 
visit the entity in person, abandon the attempt to access the 
information)?

[[Page 28680]]

    Question 68: How often are persons with disabilities entirely 
prevented, due to accessibility barriers, from obtaining access to 
information or services available on public entities' Web sites, 
including through alternate means (i.e., how often do persons with 
disabilities never receive information in any form because it is not 
available on an accessible Web site)? Are there certain services, 
programs, or activities that public entities only provide online? How 
would the Department quantify or monetize the information and services 
not received by people with disabilities because public entities' Web 
sites are inaccessible?
    Question 69: Would more people with disabilities become employed, 
remain employed, be more productive employees, or get promoted if 
public entities' Web sites were accessible? If so, what impact would 
any proposed rule have on the employment rate, productivity, or 
earnings of people with disabilities? How would the Department quantify 
or monetize these benefits? Are there other employment-related benefits 
of Web accessibility for people with disabilities that the Department 
should consider?
    Question 70: Are the educational opportunities available to people 
with disabilities limited because public entities' Web sites are 
inaccessible? For example, are the high school or college graduation 
rates of people with disabilities reduced because public educational 
institutions' Web sites are inaccessible? Would more people with 
disabilities graduate high school or college if public educational 
institutions' Web sites were accessible? If so, what impact would any 
proposed rule have on the graduation rate of people with disabilities? 
How would the Department quantify or monetize the value of this 
increased graduation rate? For example, are there financial benefits 
that accrue throughout an individual's life as a result of high school 
or college graduation, and how should these benefits be calculated? Are 
there other educational benefits of Web accessibility for people with 
disabilities that the Department should consider?
c. Benefits of WCAG 2.0 Level AA
    Question 71: Are there specific provisions of WCAG 2.0 Level AA 
that are particularly beneficial for individuals with certain types of 
disabilities (e.g., the requirement for captioning live-audio content 
in synchronized media provides certain important benefits to 
individuals with hearing disabilities and auditory processing 
disorders)? Which provisions provide the most benefits, to whom, and 
why?
    Question 72: Are there specific provisions of WCAG 2.0 Level AA 
that are difficult or costly to implement? Are there specific 
provisions of WCAG 2.0 Level AA for which the costs outweigh the 
accessibility benefits?
d. Benefits to Other Individuals and Entities
    Question 73: How would the Department quantify or monetize the 
resources expended by public entities to assist persons with 
disabilities by phone or in person? For example, would public entities 
experience reduced staffing costs due to Web accessibility requirements 
because fewer staff will be needed to respond to calls or in-person 
visits from persons with disabilities who will be able to access 
information via an accessible Web site? How should any reduction in 
staffing costs be calculated?
    Question 74: Are there any additional groups that would benefit 
from Web accessibility (e.g., individuals without disabilities, senior 
citizens, caregivers and family members of persons with disabilities)? 
Please explain how these groups would benefit (e.g., improved 
navigation enables everyone to find information on Web sites more 
efficiently, caregivers are able to perform other tasks because the 
individual with a disability for whom they provide care will need less 
assistance) and provide any information or data that could assist the 
Department in quantifying these benefits.
    Question 75: Would users without disabilities who currently access 
a public entity's services via an inaccessible Web site save time if 
the Web site became accessible (for example, because it is easier to 
find information on the site once the navigation is clearer)? If so, 
how much time would they save? Please provide any available data or 
research to support your responses on the time savings for individuals 
without disabilities from using accessible Web sites instead of 
inaccessible Web sites.
2. Time Savings Benefits
    The Department is considering monetizing many of the benefits of 
the Web accessibility rule in terms of time savings--time saved by 
those current Web users with disabilities who must spend additional 
time performing tasks because the Web site is not accessible, as well 
as time saved by those individuals with disabilities who are currently 
accessing government services via another method but could do so more 
quickly via an accessible Web site. For example, if a Web site conforms 
with WCAG 2.0 by providing navigation information in a form that allows 
screen readers or other assistive technology to retrieve the 
information, it could take a person with a vision disability less time 
to locate information on the Web site than it would if the Web site 
were not accessible. It could also take less time for that individual 
to access the information on an accessible Web site than it would take 
them to call the public entity and ask an employee for the same 
information. The Department has been able to obtain some research on 
time savings for individuals with vision impairments due to Web 
accessibility, with one study (prepared in 2004 for the U.K. Disability 
Rights Commission) finding that users who were blind took approximately 
34 percent less time to complete a task on an accessible Web site. U.K. 
Disability Rights Commission, The Web: Access and Inclusion for 
Disabled People (2004), available at https://www.city.ac.uk/_data/assets/pdf_file/0004/72670/DRC_Report.pdf (last visited Apr. 13, 2016). 
Though this study is helpful for estimating the time savings benefits 
of Web access regulations, it has some limitations. For example, the 
study included only people who are blind and people without 
disabilities, used a small sample size (i.e., it examined 6 Web sites, 
12 people who are blind, and 12 people without disabilities), did not 
detail the types of tasks participants were asked to complete, and was 
not formally peer reviewed. The Department has also reviewed some 
research indicating that individuals in general saved over one hour per 
transaction by completing tasks online. Shari McDaid and Kevin Cullen, 
ICT Accessibility and Social Inclusion of People with Disabilities and 
Older People in Ireland: The Economic and Business Dimensions (Aug. 18, 
2008), available at https://www.academia.edu/2465494/ICT_accessibility_and_social_inclusion_of_people_with_disabilities_and_older_people_in_Ireland_The_economic_and_business_dimensions (last 
visited Apr. 13, 2016). The Department is also considering calculating 
the potential resources saved by public entities in terms of reduced 
staff time if many requests for assistance that are currently being 
made by persons with disabilities by phone or in person instead were 
handled independently via an accessible Web site.
    The Department seeks additional information regarding time savings 
for users with disabilities, other users, and public entities due to 
Web site

[[Page 28681]]

accessibility. Please include as much information as possible to 
support each of your responses, including specific data or research 
where possible.
    Question 76: Should the Department evaluate benefits of a Web 
accessibility rule by considering time savings? Other than those 
discussed above, are there other studies that can be used to estimate 
time savings from accessible public entity Web sites? Please provide 
comments on the appropriate method for using time savings to calculate 
benefits?
    Question 77: Would users with disabilities who currently access a 
public entity's services by phone or in person save time if they were 
able to access the public entity's services via an accessible Web site? 
If so, how much time would they save? Should this time savings be 
calculated on an annual basis or for a certain number of interactions 
with the public entity? Please provide any available data or research 
on time savings from using accessible online services instead of 
offline methods.
    Question 78: Would users with disabilities who currently access a 
public entity's services via an inaccessible Web site save time if the 
Web site became accessible? If so, how much time would they save? Would 
this time savings be limited to users with vision disabilities? If not, 
is there a difference in the time savings based on type of disability? 
How would the time savings vary between disability groups (e.g., will 
individuals with vision disabilities save more time than individuals 
with manual dexterity disabilities)? Please provide any available data 
or research to support your responses on time savings for individuals 
with vision disabilities and other types of disabilities (e.g., hearing 
disabilities, manual dexterity disabilities, cognitive disabilities, 
etc.) from using accessible Web sites instead of inaccessible Web 
sites.
3. Methods of Compliance With Web Accessibility Requirements
    As discussed above, generally, the Department is considering 
proposing that public entities would have two years after the 
publication of a final rule to make their Web sites and Web content 
accessible in conformance with WCAG 2.0 Level AA. The Department is 
also considering whether to allow alternative conformance levels or 
compliance dates for small public entities or special districts.
    The Department seeks information regarding the efforts public 
entities would need to undertake to comply with a Web accessibility 
rule, if such a rule were promulgated as framed in this SANPRM. The 
Department expects that public entities would be able to comply with a 
Web accessibility rule in several different ways. For example, they 
might choose to remediate their existing Web site by page or section, 
or they might instead choose to create a new Web site with 
accessibility incorporated during its creation. Public entities might 
choose to use existing staff to perform any needed testing and 
remediation or hire outside consultants who would do so. The Department 
seeks information regarding the various options public entities would 
consider for achieving compliance, and the financial impact of these 
choices, so that the Department can more precisely estimate the costs 
of a Web accessibility rule.
    In each of your responses, please provide information about how a 
public entity would comply with WCAG 2.0 Level AA within two years 
after the publication of a final rule, and explain how your responses 
would vary if the Department required conformance with WCAG Level A 
instead of WCAG Level AA, or if the Department allowed additional time 
for compliance. Please include as much information as possible to 
support each of your responses, including specific data or research 
where possible.
    Question 79: How do public entities currently design and maintain 
their Web sites? Do they use in-house staff or outside contractors, 
service providers, or consultants? Do they use templates for Web site 
design, and if so, would these templates comply with a Web 
accessibility rule? Is there technology, such as templates or software, 
that could assist public entities in complying with a Web accessibility 
rule? Please describe this technology and provide information about how 
much it costs. What are the current costs of Web site design and 
maintenance? Does the method or cost of Web site design and maintenance 
vary significantly by size or type of entity?
    Question 80: How are public entities likely to comply with any rule 
the Department issues regarding Web accessibility? Would public 
entities be more likely to use in-house staff or hire an outside 
information technology consultant? Would training be required for in-
house staff, and if so, what are the costs of any anticipated training? 
Would the likelihood of using outside contractors and consultants vary 
significantly by size or type of entity? Would increased demand for 
outside experts lead to a temporary increase in the costs incurred to 
hire information technology professionals? If so, how much of an 
increase, and for how long? Aside from the cost of labor, what are the 
additional costs, if any, related to the procurement process for hiring 
an outside consultant or firm to test and remediate a Web site?
    Question 81: Are public entities likely to remediate their existing 
Web site or create a new Web site that complies with the proposed Web 
accessibility requirements? Does this decision vary significantly by 
size or type of entity? What are the cost differences between building 
a new accessible Web site with accessibility incorporated during its 
creation and remediating an existing Web site? Do those cost 
differences vary significantly by size or type of entity? Would public 
entities comply with a Web accessibility rule in other ways?
    Question 82: If public entities choose to remediate their existing 
Web content, is there a cost threshold for the expected costs of 
accessibility testing and remediation above which it becomes more cost 
effective or otherwise more beneficial for an entity to build a new Web 
site instead of remediating an existing one? If so, what is that cost 
threshold? How likely are entities of various types and sizes to cross 
this threshold?
    Question 83: Would public entities choose to remove existing Web 
content or refrain from posting new Web content instead of remediating 
the content to comply with a Web accessibility rule? How would public 
entities decide whether to remove or refrain from posting Web content 
instead of remediating the content? Are public entities more likely to 
remove or refrain from posting certain types of content? Is there a 
cost threshold above which entities are likely to remove or refrain 
from posting Web content instead of remediating the content? If so, 
what is that cost threshold?
    Question 84: In the absence of a Web accessibility rule, how often 
do public entities redesign their Web sites? Do they usually redesign 
their entire Web site or just sections (e.g., the most frequently used 
sections, sections of the Web site that are more interactive)? What are 
the benefits of Web site redesign? What are the costs to redesign a Web 
site? If a Web site is redesigned with accessibility incorporated, how 
much of the costs of the redesign are due to incorporating 
accessibility?
4. Assessing Compliance Costs
    The Department is attempting to estimate the costs a public entity 
would incur to make and maintain an accessible Web site in conformance 
with the technical standard under consideration by the Department. 
Several governmental entities in the

[[Page 28682]]

U.S. and abroad have already undertaken efforts to estimate the likely 
costs of requiring that Web sites meet certain accessibility standards. 
A Preliminary Regulatory Analysis of a proposed rule regarding 
accessible kiosks and Web sites of air carriers prepared for the U.S. 
Department of Transportation sought to estimate the costs to carriers 
using a per-page methodology. U.S. Department of Transportation, 
Nondiscrimination on the Basis of Disability in Air Travel: 
Accessibility of Web sites and Automated Kiosks at U.S. Airports, 
Preliminary Regulatory Analysis (Sept. 19, 2011), available at https://www.regulations.gov/#!documentDetail;D=DOT-OST-2011-0177-0002 (last 
visited Apr. 13, 2016). A per-page methodology is a methodology that 
multiplies the number of pages on a Web site by an established cost 
value. The Final Regulatory Analysis prepared for that rule took a 
different approach and derived estimates for three size categories of 
carriers based on comments to the Preliminary Regulatory Analysis. U.S. 
Department of Transportation, Nondiscrimination on the Basis of 
Disability in Air Travel: Accessibility of Web sites and Automated 
Kiosks at U.S. Airports, Final Regulatory Analysis on the Final Rule on 
Accessible Kiosks and Web sites (Nov. 4, 2013), available at https://www.regulations.gov/#!documentDetail;D=DOT-OST-2011-0177-0108 (last 
visited Apr. 13, 2016). In 2012, the European Commission sponsored a 
study to quantify evidence on the socioeconomic impact of Web 
accessibility. Technosite et al., Study on Economic Assessment for 
Improving e-Accessibility Services and Products, (2012) available at 
https://www.eaccessibility-impacts.eu/ (last visited Apr. 13, 2016). 
That report used a level of effort approach, in which costs were 
estimated based on an average number of hours needed to remediate a 
typical Web site in several specified size groupings. Id.
    At present, the Department is considering three different 
approaches for estimating costs. The first is a per-page methodology 
that multiplies the average number of pages on a Web site by an 
established testing, remediation, or operation and maintenance cost per 
page (and possibly by type of page). The second approach under 
consideration is a level of effort methodology, which would estimate 
costs based on Web site size groupings or size `bins' (such as less 
than 100 pages, 100 to 500 pages, etc.). The third potential approach 
would combine the per-page and level of effort methodologies. The 
Department will also consider other feasible approaches to estimating 
costs that are proposed.
    The Department seeks public comment on these potential 
methodologies, any alternative methodologies for estimating compliance 
costs that the Department should consider, and the appropriate input 
values that the Department should use for testing, remediation, and 
operation and maintenance if it chose one of these methodologies. 
Please include as much information as possible to support each of your 
responses, including specific data or research where possible.
    Question 85: Should the Department estimate testing, remediation, 
and operation and maintenance costs on a cost-per-page basis? If so, 
how should the average cost per page be determined for testing, 
remediation, and operation and maintenance? How should these costs be 
calculated? Should different per-page estimates be used for entities of 
different sizes or types, and if so how would they vary? Should 
different per-page cost estimates be used for different types of page 
content (text, images, live or prerecorded synchronized media) or for 
static and dynamic content? If you propose using different per-page 
cost estimates for different types of content, what are the appropriate 
types of content that should be used to estimate costs (e.g., text, 
images, synchronized media (live or prerecorded), forms, static 
content, dynamic content), how much content should be allocated to each 
category, and what are the appropriate time and cost estimates for 
remediation of each category?
    Question 86: If the Department were to use a cost-per-page 
methodology, how would the average number of pages per Web site be 
determined? Should the Department seek to estimate Web site size by 
sampling a set number of public entities and estimating the number of 
pages on those Web sites? When presenting costs for different 
categories of Web sites by size, how should Web sites be categorized 
(i.e., what should be considered a small, medium, or large Web site)? 
Should Web site size be discussed in terms of the number of pages, or 
is there a different metric that should be used to discuss size?
    Question 87: If a level of effort methodology is used, what are the 
appropriate Web site size categories that should be used to estimate 
costs and what are the different categories of Web elements for which 
remediation time should be estimated (e.g., informative, interactive, 
transactional, multimedia)? What are appropriate time estimates for 
remediation for each category of Web elements? What wage rates should 
be used to monetize the time (e.g., government staff, private 
contractor, other)?
    Question 88: Do the testing, remediation, and operation and 
maintenance costs vary depending on whether compliance with WCAG 2.0 
Level A or Level AA is required, and if so, how?
    Question 89: What other methods could the Department use to 
estimate the costs to public entities of compliance? Which methodology 
would allow the Department to estimate most accurately the entities' 
costs for making their Web sites accessible?
5. Indirect Costs Associated With Compliance
    The Department is also attempting to ascertain whether there are 
other types of compliance costs associated with the Web accessibility 
rule presently under consideration, such as the cost of ``down time,'' 
systems change, regulatory familiarization costs, or administrative 
costs. Regulatory familiarization and other administrative costs 
include the time a public entity spends evaluating and understanding 
the requirements of the rule and determining how to comply with those 
requirements, and time which might be needed for making or adjusting 
short- and long-term plans and strategies and assessing the public 
entity's resources. Please include as much information as possible to 
support each of your responses, including specific data or research 
where possible.
    Question 90: If public entities remediate their Web sites to comply 
with a Web accessibility rule, would they do so in such a way that 
accessible Web pages are created and tested before the original Web 
pages are removed, such that there is no ``down time'' during the 
upgrade? If not, how much ``down time'' would occur, and what are the 
associated costs?
    Question 91: Would public entities incur additional costs related 
to modifying their current methods for processing online transactions 
if those are inaccessible due to applications or software currently 
used? If so, what are these costs, and how many public entities would 
incur them?
    Question 92: Would there be additional indirect administrative 
costs associated with compliance with a Web accessibility rule, and if 
so, what are these costs?
    Question 93: Would there be any costs related to familiarization 
with the new regulations, and if so, what are these costs? How much 
time would be needed for regulatory familiarization, and how much would 
this cost?

[[Page 28683]]

    Question 94: Are there other considerations the Department should 
take into account when evaluating the time and cost required for 
compliance with a Web accessibility rule, and if so, what are these 
costs?
6. Current Levels of Accessibility for Public Entity Web Sites
    The benefits and costs of proposed regulations are commonly defined 
relative to a no-action baseline that reflects what the world would 
look like if the proposed rule is not adopted. In the case of a Web 
accessibility rule, the no-action baseline should reflect the extent to 
which public entities' Web sites would comply with accessibility 
requirements even in the absence of the proposed rule. In an attempt to 
establish this baseline, the Department considered studies regarding 
existing public entity Web site accessibility; the extent to which some 
public entities have adopted statutes or policies that require their 
Web sites to conform to accessibility requirements under section 508 of 
the Rehabilitation Act, WCAG 1.0, or WCAG 2.0; and the extent to which 
some public entities' Web sites have been made accessible due to 
settlement agreements with the Department of Justice, other agencies, 
or disability advocacy groups, and publicity surrounding these 
enforcement efforts. Based on this research, the Department is 
considering evaluating the benefits and costs of a Web accessibility 
rule relative to a no-action baseline that assumes that some percentage 
of Web sites are already accessible and that some percentage of pages 
on other Web sites are accessible, and therefore either would not incur 
testing or remediation costs at all, or would only incur these costs 
for a portion of the Web site.
    Question 95: Which public entities have statutes and/or policies 
that require or encourage their Web sites to be accessible to persons 
with disabilities and/or to conform to accessibility requirements under 
section 508, WCAG 1.0, and/or WCAG 2.0? Do these laws and/or policies 
require (not just suggest) conformance with a particular Web 
accessibility standard, and if so, which one? Are these laws and/or 
policies being implemented, and, if so, are they being implemented at 
just the State level of government or at the local levels as well? The 
Department asks that the public provide additional information on 
current State or local policies on Web accessibility, including links 
or copies of requirements or policies, when possible.
    Question 96: What percentage of public entities' Web sites and Web 
pages are already compliant with Web accessibility standards, or have 
plans to become compliant even in the absence of a Web accessibility 
rule? What would be a reasonable ``no-action'' baseline accessibility 
assumption (i.e., what percentage of Web sites and Web pages should the 
Department assume are already compliant with Web accessibility 
standards or will be even in the absence of a rule)? Should this 
assumption be different for different sizes or types of public entities 
(e.g., should a different percentage be used for small public 
entities)? Please provide as much information as possible to support 
your response, including specific data or research where possible.
    Question 97: If State or local entities already comply with WCAG 
2.0, what were the costs associated with compliance? Please provide as 
much information as possible to support your response, including 
specific data where possible.
7. Public Entity Resources
    In an attempt to evaluate the impact of a Web accessibility rule on 
public entities, the Department may consider publicly reported 
information about the annual revenues of public entities with different 
population sizes. Because this information is necessarily reported in 
the aggregate, it provides a limited view of the resources available to 
individual public entities for specific purposes, since many funds are 
targeted or restricted for certain uses. The Department is therefore 
seeking additional, specific information from public entities that 
explains, in detail, the impact of a proposed Web accessibility rule 
like the proposal currently under consideration by the Department, 
based on public entities' available resources. This information will 
enable the Department to strike an appropriate balance between access 
for individuals with disabilities and burdens on public entities when 
fashioning a proposed rule. Please include as much information as 
possible to support each of your responses, including specific data or 
research where possible.
    Question 98: Is the Department correct to evaluate the resources of 
public entities by examining their annual revenue? Is annual revenue an 
effective measure of the potential burdens a Web accessibility rule 
could impose on public entities? Is there other publicly available data 
that the Department should consider in addition to, or instead of, 
annual revenue when considering the burdens on public entities to 
comply with a Web accessibility rule?
    Question 99: Are there resources that a public entity would need to 
comply with a Web accessibility rule that they would not be able to 
purchase (e.g., staff or contractors with expertise that are not 
available in the geographic area)? Are there other constraints on 
public entities' ability to comply with a Web accessibility rule that 
the Department should consider?
8. Compliance Limitations
    The Department is considering proposing that, as with other ADA 
requirements, compliance with any technical Web accessibility standard 
the Department adopts would not be required to the extent that such 
compliance imposes undue financial and administrative burdens, or 
results in a fundamental alteration of the services, programs, or 
activities of the public entity. When compliance with the applicable 
standard would be an undue burden or fundamental alteration, a covered 
entity would still be required to provide effective communication or 
reasonable modifications to individuals with disabilities through other 
means upon request (e.g., via telephone assistance), unless such other 
means constitute an undue burden or fundamental alteration.
    The Department seeks additional information about how these 
compliance limitations would apply, as well as proposals for less 
burdensome alternatives to consider. The data that commenters provide 
to help answer these questions should be well supported and explain 
whether public entities could comply to some extent with the Web 
accessibility requirements. It should also explain what provisions of 
the proposed requirements, if any, would result in undue burdens for 
certain public entities, and why. In each of your responses, please 
assume that the proposed rule would require compliance with WCAG 2.0 
Level AA within two years after the publication of a final rule, and 
explain how your responses would vary if the Department required 
conformance with WCAG Level A instead of WCAG Level AA, or if the 
Department allowed additional time for compliance. Please include as 
much information as possible to support each of your responses, 
including specific data or research where possible.
    Question 100: Are there any other effective and reasonably feasible 
alternatives to making the Web sites of public entities accessible that 
the Department should consider? If so, please provide as much detail as 
possible about these alternatives in your

[[Page 28684]]

answer, including information regarding their costs and effectiveness.
9. Conventional Electronic Documents
    In order to assess the potential costs of making conventional 
electronic documents accessible, the Department would like to know, on 
average, how many conventional electronic documents are currently on 
public entities' Web sites, and, on average, what percentage of these 
documents is being used to apply for, gain access to, or participate in 
a public entity's services, programs, or activities. In addition, the 
Department would like to know, on average, how many new conventional 
electronic documents are placed on public entities' Web sites annually, 
and whether additional compliance costs (beyond staff time) would be 
needed to make new documents accessible after the compliance date. 
Please include as much information as possible to support each of your 
responses, including specific data or research where possible.
    Question 101: How many conventional electronic documents currently 
exist on public entities' Web sites? What is the purpose of these 
conventional electronic documents (e.g., educational, informational, 
news, entertainment)? What percentage of these documents, on average, 
is used to apply for, gain access to, or participate in the public 
entity's services, programs, or activities?
    Question 102: How many new conventional electronic documents are 
added to public entities' Web sites, on average, each year and how 
many, on average, are updated each year? Will the number of documents 
added or updated each year change over time?
    Question 103: What are the costs associated with remediating 
existing conventional electronic documents? How should these costs be 
calculated? Do these costs vary by document type, and if so, how? Would 
these costs vary if compliance with WCAG 2.0 Level A was required 
instead of compliance with WCAG 2.0 Level AA, and if so, how?
    Question 104: What costs do public entities anticipate incurring to 
ensure that the conventional electronic documents placed on their Web 
sites after the compliance date of any Web accessibility rule are 
accessible (e.g., will they be created with accessibility built in, or 
will they need to be remediated)? Would public entities use any 
specific type of software to ensure accessibility? What is the cost of 
this software, including the costs of any licenses? What kind of 
training about accessible conventional electronic documents would be 
needed, if any, and what would the training cost? How many hours per 
year would it take public entities to ensure that the conventional 
electronic documents posted on their Web sites are accessible after the 
compliance date of any Web accessibility rule?
10. Captioning and Audio Description
    WCAG 2.0 Level AA Success Criteria require captions for all 
recorded-audio and live-audio content in synchronized media, as well as 
audio description. Synchronized media refers to ``audio or video 
synchronized with another format for presenting information and/or with 
time-based interactive components. . . .'' See W3C[supreg], 
Understanding WCAG 2.0: Understanding Guideline 1.2, (Feb. 2015) 
available at https://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv.html 
(last visited Apr. 13, 2016). A common example of synchronized media is 
a video clip that presents both audio and video together. At present, 
little information exists regarding the current quantities of 
synchronized media on public entities' Web sites or their size or 
length. The Department has been able to collect data on the average 
cost of captioning audio content or audio describing video content 
(mostly on a per-hour or per-minute basis), but data to estimate which 
public entities might incur these costs and the amount of these costs 
were not found. The fact that some recorded and live media on public 
entities' Web sites are also being broadcast on public access channels 
by the public entity and, thus, might already be captioned or audio 
described further complicates the Department's ability to collect 
detailed estimates of the costs of captioning and audio description. 
Thus, the Department seeks specific information that will enable it to 
more precisely estimate the costs public entities would incur if 
requirements for captioning and audio description were proposed. Please 
include as much information as possible to support each of your 
responses, including specific data or research where possible.
    Question 105: How much synchronized media (live or prerecorded) is 
available on public entities' Web sites? How much of this synchronized 
media is live (i.e., streaming) and how much is prerecorded? What is 
the running time of such media? What portion of the media contains 
speech, and how much speech does it contain? What is the purpose of the 
synchronized media (e.g., educational, informational, civic 
participation, news, entertainment)?
    Question 106: How often do individuals with vision or hearing 
disabilities attempt to access synchronized media on public entities' 
Web sites? How much of the synchronized media that individuals with 
vision or hearing disabilities attempt to access is live and how much 
is prerecorded? What is the purpose of attempting to access this 
synchronized media (e.g., educational, informational, civic 
participation, news, entertainment)? What percentage of the 
synchronized media is not captioned or audio described, and what 
portion of the media that is not captioned or audio described is live 
versus prerecorded?
    Question 107: What do individuals with vision or hearing 
disabilities do when synchronized media is not captioned or audio 
described? Do they spend additional time seeking the information or 
content in other ways (e.g., do they need to make a phone call and 
remain on hold)? If so, how much additional time do they spend trying 
to obtain it? How do they actually obtain this information or content? 
How much additional time, other than the individual's own time spent 
seeking the information, does it take to obtain the information or 
content (e.g., does it take several days after their request for the 
information to arrive in the mail)?
    Question 108: To what extent do persons with vision or hearing 
disabilities refrain from using public entities' Web sites due to a 
lack of captioning or audio description? Would persons with vision or 
hearing disabilities use public entities' Web sites more frequently if 
content were captioned or audio described? To what extent does the lack 
of captioning or audio description make using public entities' Web 
sites more difficult and/or time consuming?
    Question 109: Would people with cognitive or other disabilities 
benefit from captioning or audio description of synchronized media on 
public entities' Web sites? If so, how, and how can a monetary value be 
assigned to these benefits?
    Question 110: Currently, what are the specific costs associated 
with captioning prerecorded and live-audio content in synchronized 
media, including the costs of hiring professionals to perform the 
captioning, the costs associated with the technology, and other 
components involved with the captioning process? Aside from inflation, 
are these costs expected to change over time? If so, why will they 
change, when will they begin to do so, and by how much?
    Question 111: Currently, how much synchronized media content are 
public entities providing that would need to be

[[Page 28685]]

audio described due to the presence of important visual aspects that 
would not be conveyed via sound? What types of content on public 
entities' Web sites would need to be audio described?
    Question 112: Currently, what are the specific costs associated 
with audio describing content in synchronized media, including the 
costs of hiring professionals to perform the description, the costs 
associated with the technology, and other components involved with the 
audio description process? Aside from inflation, are these costs 
expected to change over time? If so, why will they change, when will 
they begin to do so, and by how much?
11. Public Educational Institutions
    The Department is considering whether public educational 
institutions (i.e., public elementary and secondary schools and public 
postsecondary institutions) may face unique challenges in complying 
with a Web accessibility rule. Public educational institutions' Web 
sites may be more complex and interactive than other public entities' 
Web sites, primarily because of the characteristics of online education 
and the use of LMSs. Many aspects of public educational institutions' 
Web sites are accessed via a secure Web portal. The secured portions of 
public educational institutions' Web sites may require more regular 
access and interaction for completing essential tasks such as course 
registration and course participation. Because these portions of the 
Web sites require individualized usernames and passwords, the 
Department has been unable to evaluate the characteristics of these Web 
sites to date, thus making it difficult to monetize the benefits and 
costs of making the secured portions of the Web sites accessible in 
accordance with the proposal currently under consideration by the 
Department. The Department seeks additional information regarding the 
benefits and costs of Web accessibility for public educational 
institutions. Please include as much information as possible to support 
each of your responses, including specific data or research where 
possible.
    Question 113: Do public educational institutions face additional or 
different costs associated with making their Web sites accessible due 
to the specialized nature of the software used to facilitate online 
education, or for other reasons? If so, please describe these 
additional costs, and discuss how they are likely to be apportioned 
between public educational institutions, consumers, and software 
developers.
    Question 114: How should the monetary value of the benefits and 
costs of making the secured portions of public educational 
institutions' Web sites accessible be measured? What methodology should 
the Department use to calculate these benefits and costs?
    Question 115: Is there a cost threshold for the expected costs of 
accessibility testing and remediation above which it becomes more cost 
effective or otherwise more beneficial for a public educational 
institution to build a new Web site instead of remediating an existing 
one? If so, what is that cost threshold for each type of public 
educational institution (e.g., public elementary school, public 
secondary school, public school district, public postsecondary 
institution)? How likely is each type of public educational institution 
to cross this threshold?
12. Impact on Small Entities
    Consistent with the Regulatory Flexibility Act of 1980 and 
Executive Order 13272, the Department must consider the impacts of any 
proposed rule on small entities, including small governmental 
jurisdictions (``small public entities''). See 5 U.S.C. 603-04 (2006); 
E.O. 13272, 67 FR 53461 (Aug. 13, 2002). At the next rulemaking stage, 
the Department will make an initial determination as to whether any 
rule it proposes is likely to have a significant economic impact on a 
substantial number of small public entities. If so, the Department will 
prepare an initial regulatory flexibility analysis analyzing the 
economic impacts on small public entities and the regulatory 
alternatives the Department considered to reduce the regulatory burden 
on small public entities while achieving the goals of the regulation. 
At this stage, the Department seeks information on the potential impact 
of a Web accessibility rule on small public entities (i.e., governments 
of cities, counties, towns, townships, villages, school districts, or 
special districts, with a population of less than 50,000) to assist it 
to more precisely conduct an initial regulatory flexibility analysis at 
the next rulemaking stage.
    The Department recognizes that small public entities may face 
resource constraints that could make compliance with some Web 
accessibility standards difficult. The Department therefore seeks 
additional, specific information regarding these constraints. The 
Department encourages small public entities to provide cost data on the 
potential economic impact of adopting the specific requirements for Web 
site accessibility under consideration by the Department. The 
Department also encourages small public entities to provide 
recommendations on less burdensome alternatives, with relevant cost 
information. The Department also seeks additional information that will 
enable it to quantify the benefits of any such rule for individuals 
with disabilities residing in small public entities. For example, 
individuals with manual dexterity limitations residing in small public 
entities may find Web accessibility more important than individuals 
with similar disabilities residing in larger public entities that may 
have more accessible public transportation and greater physical 
accessibility. However, it is also possible that Web accessibility is 
less important for individuals with manual dexterity limitations 
residing in small public entities because they do not need to travel 
very far to access government services in-person, or very little 
information is available on their town's Web site. In each of your 
responses, please assume that the proposed rule would require 
compliance with WCAG 2.0 Level AA within two years after the 
publication of a final rule, and explain how your responses would vary 
if the Department required conformance with WCAG Level A instead of 
WCAG Level AA, or if the Department allowed additional time for 
compliance. Please include as much information as possible to support 
each of your responses, including specific data or research where 
possible.
    Question 116: Do all or most small public entities have Web sites? 
Is there a certain population threshold below which a public entity is 
unlikely to have a Web site?
    Question 117: How large and complex are small public entities' Web 
sites? How, if at all, do the Web sites of small public entities differ 
from Web sites of larger public entities? Do small public entities tend 
to have Web sites with fewer pages? Do small public entities tend to 
have Web sites that are less complex? Are small public entities less 
likely to provide information about or access to government services, 
programs, and activities on their Web sites? Do the Web sites of small 
public entities allow residents to access government services online 
(e.g., filling out forms, paying bills, requesting services)?
    Question 118: Are persons with disabilities residing in small 
public entities more or less likely to use the public entities' Web 
sites to access government services? Why or why not?
    Question 119: Is annual revenue an effective measure of the 
potential burdens a Web accessibility rule could impose on small public 
entities? Is there other publicly available data that the Department 
should consider in addition to, or instead of, annual revenue when 
considering the burdens on small public

[[Page 28686]]

entities to comply with a Web accessibility rule?
    Question 120: Are there resources that a small public entity would 
need to comply with a Web accessibility rule that they would not be 
able to purchase (e.g., staff or contractors with expertise that are 
not available in the geographic area)?
    Question 121: Do small public entities face particular obstacles to 
compliance due to their size (e.g., limited revenue, small technology 
staff, limited technological expertise)? Do small public entities of 
different sizes and different types face different obstacles? Are there 
other constraints on small public entities' ability to comply with a 
Web accessibility rule that the Department should consider?
    Question 122: Are small public entities likely to determine that 
compliance with a Web accessibility rule would result in undue 
financial and administrative burdens or a fundamental alteration of the 
services, programs, or activities of the public entity? If so, why 
would these compliance limitations result?
    Question 123: Are there alternatives that the Department could 
consider adopting that were not previously discussed that could 
alleviate the potential burden on small public entities? Please provide 
as much detail as possible in your response.

     Dated: April 29, 2016.
Vanita Gupta,
Principal Deputy Assistant Attorney General, Civil Rights Division.
[FR Doc. 2016-10464 Filed 5-6-16; 8:45 am]
 BILLING CODE 4410-13-P