Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities, 51948-52020 [2023-15823]
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Federal Register / Vol. 88, No. 149 / Friday, August 4, 2023 / Proposed Rules
DEPARTMENT OF JUSTICE
28 CFR Part 35
[CRT Docket No. 144; AG Order No. 5729–
2023]
RIN 1190–AA79
Nondiscrimination on the Basis of
Disability; Accessibility of Web
Information and Services of State and
Local Government Entities
Civil Rights Division,
Department of Justice.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Department of Justice
(‘‘Department’’) is proposing to revise
the regulation implementing title II of
the Americans with Disabilities Act
(‘‘ADA’’) in order to establish specific
requirements, including the adoption of
specific technical standards, for making
accessible the services, programs, and
activities offered by State and local
Government entities to the public
through the web and mobile apps.
DATES: Written comments must be
postmarked, and electronic comments
must be submitted, on or before October
3, 2023. Commenters should be aware
that the electronic Federal Docket
Management System (‘‘FDMS’’) will
accept comments submitted prior to
midnight Eastern Time on the last day
of the comment period. Written
comments postmarked on or before the
last day are considered timely even
though they may be received after the
end of the comment period. Late
comments are highly disfavored. The
Department is not required to consider
late comments.
ADDRESSES: You may submit comments,
identified by RIN 1190–AA79 (or Docket
ID No. 144), by any one of the following
methods:
• Federal eRulemaking Website:
www.regulations.gov. Follow the
website’s instructions for submitting
comments.
• Regular U.S. Mail: Disability Rights
Section, Civil Rights Division, U.S.
Department of Justice, P.O. Box 440528,
Somerville, MA 02144.
• Overnight, Courier, or Hand
Delivery: Disability Rights Section, Civil
Rights Division, U.S. Department of
Justice, 150 M St. NE, 9th Floor,
Washington, DC 20002.
FOR FURTHER INFORMATION CONTACT:
Rebecca B. Bond, Chief, Disability
Rights Section, Civil Rights Division,
U.S. Department of Justice, at (202) 307–
0663 (voice or TTY). This is not a tollfree number. Information may also be
obtained from the Department’s toll-free
ADA Information Line at (800) 514–
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SUMMARY:
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0301 (voice) or 1–833–610–1264 (TTY).
You may obtain copies of this NPRM in
an alternative format by calling the ADA
Information Line at (800) 514–0301
(voice) or 1–833–610–1264 (TTY). A
link to this NPRM is also available on
www.ada.gov.
Electronic Submission of Comments
and Posting of Public Comments
Interested persons are invited to
participate in this rulemaking by
submitting written comments on all
aspects of this rule via one of the
methods and by the deadline stated
above. When submitting comments,
please include ‘‘RIN 1190–AA79’’ in the
subject field. The Department also
invites comments that relate to the
economic, environmental, or federalism
effects that might result from this rule.
Comments that will provide the most
assistance to the Department in
developing this rule will reference a
specific portion of the rule or respond
to a specific question, explain the
reason for any recommended change,
and include data, information, or
authority that support such
recommended change.
Please note that all comments
received are considered part of the
public record and made available for
public inspection at https://
www.regulations.gov. Such information
includes personally identifiable
information (‘‘PII’’) (such as your name
and address). Interested persons are not
required to submit their PII in order to
comment on this rule. However, any PII
that is submitted is subject to being
posted to the publicly accessible https://
www.regulations.gov/ site without
redaction.
Confidential business information
clearly identified in the first paragraph
of the comment as such will not be
placed in the public docket file.
The Department may withhold from
public viewing information provided in
comments that they determine may
impact the privacy of an individual or
is offensive. For additional information,
please read the Privacy Act notice that
is available via the link in the footer of
https://www.regulations.gov. To inspect
the agency’s public docket file in
person, you must make an appointment
with the agency. Please see the FOR
FURTHER INFORMATION CONTACT
paragraph above for agency contact
information.
I. Executive Summary
A. Purpose of Proposed Rule and Need
for the Rule
Title II of the ADA provides that no
qualified individual with a disability
shall, by reason of such disability, be
excluded from participation in or
denied the benefits of the services,
programs, or activities of a State or local
government entity.1 The Department
uses the phrases ‘‘State and local
government entities’’ and ‘‘public
entities’’ interchangeably throughout
this Notice of Proposed Rulemaking
(‘‘NPRM’’) to refer to ‘‘public entities’’
as defined in 42 U.S.C. 12131(1) that are
covered under part A of title II of the
ADA. The Department has consistently
made clear that the title II
nondiscrimination provision applies to
all services, programs, and activities of
public entities, including those
provided via the web. It also includes
those provided via mobile applications
(‘‘apps’’), which, as discussed in the
proposed definition, are software
applications that are designed to be
downloaded and run on mobile devices
such as smartphones and tablets. In this
NPRM, the Department proposes
technical standards for web content and
mobile app accessibility to give public
entities greater clarity in exactly how to
meet their ADA obligations and to help
ensure equal access to public entities’
services, programs, and activities (also
referred to as ‘‘government services’’) for
people with disabilities.
Public entities are increasingly
providing the public access to
government services through their web
content and mobile apps. For example,
government websites and mobile apps
often allow the public to obtain
information or correspond with local
officials without having to wait in line
or be placed on hold. Members of the
public can also pay fines, apply for State
benefits, renew State-issued
identification, register to vote, file taxes,
request copies of vital records, and
complete numerous other tasks via
government websites. Individuals can
often perform many of these same
functions on mobile apps. Additionally,
as discussed further, web- and mobile
app-based access to these programs and
activities has become especially critical
since the start of the COVID–19
pandemic. Often, however, State and
local government entities’ web- and
mobile app-based services are not
designed accessibly and as a result are
not equally available to individuals with
disabilities.
SUPPLEMENTARY INFORMATION:
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It is critical to ensure that people with
disabilities can access important web
content and mobile apps quickly, easily,
independently, and equally. Just as
steps can exclude people who use
wheelchairs, inaccessible web content
can exclude people with a range of
disabilities from accessing government
services. For example, access to voting
information, up-to-date health and
safety resources, and mass transit
schedules and fare information may
depend on having access to websites
and mobile apps. With accessible web
content and mobile apps, people with
disabilities can access government
services independently and in some
cases with more privacy. By allowing
people with disabilities to engage more
fully with their governments, accessible
web content and mobile apps also
promote the equal enjoyment of
fundamental constitutional rights, such
as the rights to freedom of speech,
assembly, association, petitioning, and
due process of law.
Accordingly, the Department is
proposing technical requirements to
provide concrete standards to public
entities on how to fulfill their
obligations under title II to provide
equal access to all of their services,
programs, and activities that are
provided via the web and mobile apps.
The Department believes the
requirements described in this rule are
necessary to ensure ‘‘equality of
opportunity, full participation,
independent living, and economic selfsufficiency’’ for individuals with
disabilities, as set forth in the ADA.2
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B. Legal Authority
On July 26, 1990, President George
H.W. Bush signed into law the ADA, a
comprehensive civil rights law
prohibiting discrimination on the basis
of disability.3 Title II of the ADA, which
this rule addresses, applies to State and
local government entities. Title II
extends the prohibition on
discrimination established by section
504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. 794, to all activities
of State and local government entities
regardless of whether the entities
receive Federal financial assistance.4
Part A of title II protects qualified
individuals with disabilities from
discrimination on the basis of disability
2 42
U.S.C. 12101(a)(7).
U.S.C. 12101–12213.
4 42 U.S.C. 12131–65.
5 See 42 U.S.C. 12134. Section 229(a) and section
244 of the ADA direct the Secretary of
Transportation to issue regulations implementing
part B of title II, except for section 223. See 42
U.S.C. 12149, 12164.
3 42
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in services, programs, and activities
provided by State and local government
entities. Section 204(a) of the ADA
directs the Attorney General to issue
regulations implementing part A of title
II but exempts matters within the scope
of the authority of the Secretary of
Transportation under section 223, 229,
or 244.5
The Department of Justice is the only
Federal agency with authority to issue
regulations under title II, part A, of the
ADA regarding the accessibility of State
and local government entities’ web
content and mobile apps. In addition,
under Executive Order 12250, the
Department of Justice is responsible for
ensuring consistency and effectiveness
in the implementation of section 504
across the Federal Government (aside
from provisions relating to equal
employment). Given Congress’s intent
for parity between section 504 and title
II of the ADA, the Department must also
ensure that any interpretations of
section 504 are consistent with title II
(and vice versa).6 The Department,
therefore, also has a lead role in
coordinating interpretations of section
504 (again, aside from provisions
relating to equal employment),
including its application to websites
and mobile apps, across the Federal
Government.
C. Overview of Key Provisions of This
Proposed Regulation
In this NPRM, the Department
proposes to add a new subpart H to the
title II ADA regulation, 28 CFR part 35,
that will set forth technical
requirements for ensuring that web
content that State and local government
entities make available to members of
the public or use to offer services,
programs, and activities to members of
the public is readily accessible to and
usable by individuals with disabilities.
Web content is information or sensory
experience that is communicated to the
user by a web browser or other software.
This includes text, images, sounds,
videos, controls, animations, navigation
menus, and documents. Examples of
sensory experiences include content
like visual works of art or musical
performances.7 Proposed subpart H also
sets forth technical requirements for
ensuring the accessibility of mobile
apps that a public entity makes
6 Memorandum for Federal Agency Civil Rights
Directors and General Counsels from the Office of
the Assistant Attorney General, Civil Rights
Division, Department of Justice, https://
www.justice.gov/crt/file/1466601/download
[https://perma.cc/YN3G-J7F9].
7 See W3C®, Web Content Accessibility
Guidelines 2.1 (June 5, 2018), https://www.w3.org/
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available to members of the public or
uses to offer services, programs, or
activities to members of the public.
The Department proposes to adopt an
internationally recognized accessibility
standard for web access, the Web
Content Accessibility Guidelines
(‘‘WCAG’’) 2.1 8 published in June 2018,
https://www.w3.org/TR/WCAG21/
[https://perma.cc/H2GG-WJVK], as the
technical standard for web content and
mobile app accessibility under title II of
the ADA. As will be explained in more
detail, the Department is proposing to
require that public entities comply with
the WCAG 2.1 Level AA success criteria
and conformance requirements. The
applicable technical standard will be
referred to hereinafter as ‘‘WCAG 2.1.’’
The applicable conformance level will
be referred to hereinafter as ‘‘Level AA.’’
To the extent there are differences
between WCAG 2.1 Level AA and the
standards articulated in this rule, the
standards articulated in this rule
prevail. As noted below, WCAG 2.1
Level AA is not restated in full in this
rule but is instead incorporated by
reference.
In recognition of the challenges that
small public entities may face with
respect to resources for implementing
the proposed new requirements, the
Department is proposing to stagger the
compliance dates for public entities
according to their total population.
Total population refers to the size of the
public entity’s population according to
the U.S. Census Bureau or, if the public
entity does not have a specific
population but belongs to another
jurisdiction that does, the population of
the jurisdiction to which the entity
belongs. This NPRM proposes that a
public entity with a total population of
50,000 or more must ensure that web
content and mobile apps it makes
available to members of the public or
uses to offer services, programs, or
activities to members of the public,
comply with WCAG 2.1 Level AA
success criteria and conformance
requirements two years after the
publication of the final rule. A public
entity with a total population of less
than 50,000 would have three years to
comply with these requirements. In
addition, all special district
governments would have three years to
comply with these requirements.
TR/WCAG21/#dfn-specific-sensory-experience
[https://perma.cc/5554-T2R2].
8 Copyright © 2017 2018 W3C® (MIT, ERCIM,
Keio, Beihang). This document includes material
copied from or derived from https://www.w3.org/
TR/WCAG21/ [https://perma.cc/H2GG-WJVK].
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TABLE 1—COMPLIANCE DATES FOR WCAG 2.1 LEVEL AA
Public entity size
Compliance date
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Fewer than 50,000 persons/Special district governments .......................
50,000 or more persons ...........................................................................
In addition, the Department is
proposing to create an exception from
the web accessibility requirements for
certain categories of web content, which
are described in detail in the section-bysection analysis.
If web content is excepted, that means
that the public entity does not need to
make the content conform to WCAG 2.1
Level AA, unless there is an applicable
limitation to the exception. The
proposed limitations describe situations
in which the otherwise excepted
content must conform to WCAG 2.1
Level AA.
As will be explained more fully, the
Department is proposing seven
exceptions with some limitations: (1)
archived web content; (2) preexisting
conventional electronic documents; (3)
web content posted by third parties on
a public entity’s website; (4) third-party
web content linked from a public
entity’s website; (5) course content on a
public entity’s password-protected or
otherwise secured website for admitted
students enrolled in a specific course
offered by a public postsecondary
institution; (6) class or course content
on a public entity’s password-protected
or otherwise secured website for
students enrolled, or parents of students
enrolled, in a specific class or course at
a public elementary or secondary
school; and (7) conventional electronic
documents that are about a specific
individual, their property, or their
account and that are password-protected
or otherwise secured. The proposed
exception for preexisting conventional
electronic documents would also apply
to conventional electronic documents
available through mobile apps. As
discussed further, if one of these
exceptions applies without a limitation,
then the public entity’s excepted web
content or mobile app would not need
to comply with the proposed rule’s
accessibility requirements. However,
each exception is limited in some way.
If a limitation applies to an exception,
then the public entity would need to
ensure that its web content or mobile
app complies with the proposed rule’s
accessibility requirements. The
Department is proposing these
exceptions—with certain limitations
explained in detail later in this NPRM—
because it believes that requiring public
entities to make the particular content
described in these categories accessible
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Three years after publication of the final rule.
Two years after publication of the final rule.
under all circumstances could be too
burdensome at this time. In addition,
requiring accessibility in all
circumstances may divert important
resources from providing access to key
web content and mobile apps that
public entities make available or use to
offer services, programs, and activities.
However, upon request from a specific
individual, a public entity may have to
provide web content or content in
mobile apps to that individual in an
accessible format to comply with the
entity’s existing obligations under other
regulatory provisions implementing title
II of the ADA, even if an exception
applies without a limitation. For
example, archived town meeting
minutes from 2011 might be excepted
from the requirement to comply with
WCAG 2.1 Level AA. But, if a person
with low vision, for example, requests
an accessible version, then the town
would still need to consider the
person’s request under its existing
effective communication obligations in
28 CFR 35.160. The way that the town
does this could vary based on the facts.
For example, in some circumstances,
providing a large print version of the
minutes might satisfy the town’s
obligations, and in other circumstances
it might need to provide an electronic
version that partially complies with
WCAG.
The NPRM also proposes to make
clear the limited circumstances in
which ‘‘conforming alternate versions’’
of web pages, as defined in WCAG 2.1,
can be used as a means of achieving
accessibility. A conforming alternate
version is a separate web page that is
accessible, up to date, contains the same
information and functionality as the
inaccessible web page, and can be
reached via a conforming page or an
accessibility-supported mechanism. The
Department understands that, in
practice, it can be difficult to maintain
conforming alternate versions because it
is often challenging to keep two
different versions of web content up to
date. For this reason and others
discussed later, conforming alternate
versions are permissible only when it is
not possible to make websites and web
content directly accessible due to
technical or legal limitations. Also, the
NPRM would allow a public entity
flexibility to show that its use of other
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designs, methods, or techniques as
alternatives to WCAG 2.1 Level AA
provides substantially equivalent or
greater accessibility and usability.
Additionally, the NPRM proposes that
compliance with WCAG 2.1 Level AA is
not required under the ADA to the
extent that such compliance imposes
undue financial and administrative
burdens or results in a fundamental
alteration of the services, programs, or
activities of the public entity. More
information about these proposals is
provided in the section-by-section
analysis.
D. Summary of Costs and Benefits
To estimate the potential costs and
benefits associated with this proposed
rule, the Department conducted a
Preliminary Regulatory Impact Analysis
(‘‘PRIA’’). The purpose of the PRIA is to
inform the public about how the
proposed rule creates costs and benefits
to society, taking into account both
quantitative and qualitative costs and
benefits. A more detailed summary of
the PRIA is included in section VI of
this preamble. The results of the
Department’s economic analysis
indicate that monetized benefits of this
rulemaking far exceed the costs.
Further, the proposed rule will benefit
individuals with disabilities uniquely
and in their day-to-day lives in many
ways that could not be quantified due
to unavailable data. Table 2 below
shows a high-level overview of the
Department’s monetized findings. Nonmonetized costs and benefits are
discussed in the text.
The Department calculated a variety
of estimated costs, including: (1) onetime costs for familiarization with the
requirements of the rule; (2) initial
testing and remediation costs for
government websites; (3) operating and
maintenance (‘‘O&M’’) costs for
government websites; (4) initial testing
and remediation costs for mobile apps;
(5) O&M costs for mobile apps; (6)
school course remediation costs; and (7)
initial testing and remediation costs for
third-party websites that provide
services on behalf of State and local
governments. School course content,
despite primarily being hosted on
websites, is estimated as a separate
remediation cost due to its unique
structure and content, and because it is
primarily on password-protected pages
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and therefore unobservable to the
Department. The remediation costs
include both time and software
components. Annualized costs are
calculated over a 10-year period that
includes both the three-year
implementation period and the seven
years post-implementation. Annualized
costs over this 10-year period are
estimated at $2.8 billion assuming a 3
percent discount rate or $2.9 billion
assuming a 7 percent discount rate. This
includes $15.8 billion in
implementation costs accruing during
the first three years (the implementation
period), undiscounted, and $1.8 billion
in annual O&M costs during the next
seven years. All values are presented in
2021 dollars as 2022 data were not yet
available.
To consider the relative magnitude of
the estimated costs of this proposed
regulation, the Department compares
the costs to revenues for public entities.
Because the costs for each government
entity type are estimated to be well
below 1 percent of revenues, the
Department does not believe the rule
will be unduly burdensome or costly for
public entities.9
Benefits of this rulemaking will
accrue particularly to individuals with
certain types of disabilities. For
purposes of the PRIA, the Department
has determined that WCAG 2.1 Level
AA primarily benefits individuals with
vision, hearing, cognitive, and manual
dexterity disabilities because the WCAG
2.1 standards are intended to address
barriers that often impede access for
people with these disability types.10 The
Department quantified benefits to
individuals with these four types of
disabilities. Individuals with other types
of disabilities may also benefit but, due
to data limitations and uncertainties,
benefits to these individuals are not
directly quantified. Additionally,
because accessibly designed web
content and mobile apps are easier for
everyone to use, benefits will also
accrue to people without relevant
disabilities 11 who access State and local
government entities’ web content and
mobile apps.
The Department monetized benefits
for people with vision, hearing,
cognitive, and manual dexterity
disabilities as well as people without
these disabilities. These benefits
included time savings for current users
of State and local government entities’
web content; time savings for those who
switch from other modes of accessing
State and local government entities’
services, programs, or activities (e.g.,
phone or in person) to web access or
begin to participate in these services,
programs, or activities for the first time;
time savings for current mobile app
users; time savings for students and
their parents; and earnings from
additional educational attainment.
Annual benefits, beginning once the
rule is fully implemented, total $11.4
billion. Benefits annualized over a 10year period that includes both three
years of implementation and seven
years post-implementation total $9.3
billion per year, assuming a 3 percent
discount rate, and $8.9 billion per year,
assuming a 7 percent discount rate.
There are many additional benefits
that have not been monetized due to a
51951
lack of data availability. Benefits that
cannot be monetized are discussed
qualitatively in the PRIA. These
qualitative benefits are central to this
proposed rule’s potential impact. They
include concepts at the core of any civil
rights law, such as equality and dignity.
Other benefits to individuals include
increased independence, increased
flexibility, increased privacy, reduced
frustration, decreased reliance on
companions, and increased program
participation. This proposed rule will
also benefit governments through
increased certainty about what
constitutes accessible web content,
potential reduction in litigation, and a
larger labor market pool.
Comparing annualized costs and
benefits, the monetized benefits to
society of this rulemaking far outweigh
the costs. Net annualized benefits over
the first 10 years after publication of this
proposed rule total $6.5 billion per year
using a 3 percent discount rate and $6.0
billion per year using a 7 percent
discount rate (Table 2). Additionally,
beyond this 10-year period, benefits are
likely to continue to accrue at a greater
rate than costs because many of the
costs are upfront costs and benefits tend
to have a delay before beginning to
accrue. Moreover, the Department
expects the net annualized benefit
estimate is an underestimate, as it does
not include the significant qualitative
benefits that the Department was unable
to monetize. For a complete comparison
of costs and benefits, please see Section
1.2, Summary of Benefits and Costs, in
the corresponding PRIA.
TABLE 2—10-YEAR AVERAGE ANNUALIZED COMPARISON OF COSTS AND BENEFITS
3% Discount
rate
Benefit type
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Average annualized costs (millions) ........................................................................................................................
Average annualized benefits (millions) ....................................................................................................................
Net benefits (millions) ..............................................................................................................................................
Cost-to-benefit ratio .................................................................................................................................................
9 As a point of reference, the United States Small
Business Administration advises agencies that a
potential indicator that the impact of a proposed
regulation may be ‘‘significant’’ is whether the costs
exceed 1 percent of the gross revenues of the
entities in a particular sector, although the
threshold may vary based on the particular types of
entities at issue. The Department estimates that the
costs of this rulemaking for each government entity
type are far less than 1 percent of revenues. See
Small Bus. Admin., A Guide for Government
Agencies: How to Comply with the Regulatory
Flexibility Act 19 (Aug. 2017), https://
advocacy.sba.gov/wp-content/uploads/2019/07/
How-to-Comply-with-the-RFA-WEB.pdf [https://
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perma.cc/MZW6-Y3MH]; see also EPA, EPA’s
Action Development Process: Final Guidance for
EPA Rulewriters: Regulatory Flexibility Act 24 (Nov.
2006), https://www.epa.gov/sites/default/files/201506/documents/guidance-regflexact.pdf [https://
perma.cc/9XFZ-3EVA] (providing an illustrative
example of a hypothetical analysis under the RFA
in which, for certain small entities, economic
impact of ‘‘[l]ess than 1% for all affected small
entities’’ may be ‘‘presumed’’ to have ‘‘no
significant economic impact on a substantial
number of small entities’’).
10 See W3C®, What’s New in WCAG 2.1 (Aug. 13,
2020), https://www.w3.org/WAI/standardsguidelines/wcag/new-in-21/ [https://perma.cc/
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$2,846.6
9,316.3
6,469.7
0.3
7% Discount
rate
$2,947.9
8,937.2
5,989.3
0.3
W8HK-Z5QK]; W3C®, Web Content Accessibility
Guidelines 2.1 (June 5, 2018), https://www.w3.org/
TR/WCAG21/ [https://perma.cc/29PG-YX3N].
11 Throughout this proposed rule, the Department
uses the phrase ‘‘individuals without relevant
disabilities’’ to refer to individuals without vision,
hearing, cognitive, or manual dexterity disabilities.
Individuals without these disabilities may have
other types of disabilities, or they may be
individuals without disabilities, but to simplify the
discussion in this proposed rule, ‘‘individuals
without relevant disabilities’’ will be used to mean
individuals without one of these four types of
disabilities.
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II. Relationship to Other Laws
Title II of the ADA and the
Department of Justice’s implementing
regulation state that except as otherwise
provided, the ADA shall not be
construed to apply a lesser standard
than title V of the Rehabilitation Act of
1973 (29 U.S.C. 791) or its
accompanying regulations.12 They
further state that the ADA does not
invalidate or limit the remedies, rights,
and procedures of any other laws that
provide greater or equal protection for
people with disabilities or people
associated with them.13
The Department recognizes that
entities subject to title II of the ADA
may also be subject to other statutes that
prohibit discrimination on the basis of
disability. Compliance with the
Department’s title II regulation does not
necessarily ensure compliance with
other statutes and their implementing
regulations. Title II entities are also
obligated to fulfill the ADA’s title I
requirements in their capacity as
employers, and those requirements are
distinct from the obligations under this
rule.
Education is another context in which
entities have obligations to comply with
other laws imposing affirmative
obligations regarding individuals with
disabilities. The Department of
Education’s regulations implementing
the Individuals with Disabilities
Education Act (‘‘IDEA’’) and section 504
of the Rehabilitation Act provide
longstanding, affirmative obligations on
covered schools to identify children
with disabilities, and both require
covered schools to provide a Free
Appropriate Public Education
(‘‘FAPE’’).14 This rulemaking would
build on, and would not supplant, those
preexisting requirements. A public
entity must continue to meet all of its
existing obligations under other laws. A
discussion of how this rule adds to the
existing educational legal environment
is included under the preamble
discussion of the relevant educational
exception.
ddrumheller on DSK120RN23PROD with PROPOSALS2
III. Background
A. ADA Statutory and Regulatory
History
The ADA broadly protects the rights
of individuals with disabilities in
important areas of everyday life, such as
in employment, access to State and local
government entities’ services, places of
public accommodation, and
transportation. The ADA also requires
12 42
U.S.C. 12201(a); 28 CFR 35.103(a).
U.S.C. 12201(b); 28 CFR 35.103(b).
14 See 20 U.S.C. 1412; 34 CFR 104.32–104.33.
13 42
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newly designed and constructed or
altered State and local government
entities’ facilities, public
accommodations, and commercial
facilities to be readily accessible to and
usable by individuals with
disabilities.15 Section 204(a) of title II
and section 306(b) of title III direct the
Attorney General to promulgate
regulations to carry out the provisions of
titles II and III, other than certain
provisions dealing specifically with
transportation.16 Title II, part A, applies
to State and local government entities
and protects qualified individuals with
disabilities from discrimination on the
basis of disability in services, programs,
and activities provided by State and
local government entities.
On July 26, 1991, the Department
issued its final rules implementing title
II and title III, which are codified at 28
CFR part 35 (title II) and part 36 (title
III), and include the ADA Standards for
Accessible Design (‘‘ADA Standards’’).17
At that time, the web was in its infancy
and was thus not used by State and
local government entities as a means of
providing services or information to the
public. Thus, web content was not
mentioned in the Department’s title II
regulation. Only a few years later,
however, as web content of general
interest became available, public
entities began using web content to
provide information to the public.
B. History of the Department’s Title II
Web-Related Interpretation and
Guidance
The Department first articulated its
interpretation that the ADA applies to
websites of covered entities in 1996.18
Under title II, this includes ensuring
that individuals with disabilities are
not, by reason of such disability,
excluded from participation in or
denied the benefits of the services,
programs, and activities offered by State
and local government entities, including
those offered via the web, such as
15 42
U.S.C. 12101 et seq.
U.S.C. 12134, 12186(b).
17 Title III prohibits discrimination on the basis of
disability in the full and equal enjoyment of places
of public accommodation (privately operated
entities whose operations affect commerce and fall
within at least one of 12 categories listed in the
ADA, such as restaurants, movie theaters, schools,
day care facilities, recreational facilities, and
doctors’ offices) and requires newly constructed or
altered places of public accommodation—as well as
commercial facilities (facilities intended for
nonresidential use by a private entity and whose
operations affect commerce, such as factories,
warehouses, or office buildings)—to comply with
the ADA Standards. 42 U.S.C. 12181–89.
18 See Letter for Tom Harkin, U.S. Senator, from
Deval L. Patrick, Assistant Attorney General, Civil
Rights Division, Department of Justice (Sept. 9,
1996), https://www.justice.gov/crt/foia/file/666366/
download [https://perma.cc/56ZB-WTHA].
16 42
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education services, voting, town
meetings, vaccine registration, tax filing
systems, and applications for benefits.19
The Department has since reiterated this
interpretation in a variety of online
contexts.20 Title II of the ADA also
applies when public entities use mobile
apps to offer their services, programs,
and activities.
Many public entities now regularly
offer many of their services, programs,
and activities through web content and
mobile apps, and the Department
describes in detail the ways in which
public entities have been doing so later
in this section. To ensure equal access
to such services, programs, and
activities, the Department is
undertaking this rulemaking to provide
public entities with more specific
information about how to meet their
nondiscrimination obligations in the
web and mobile app contexts.
As with many other statutes, the
ADA’s requirements are broad and its
implementing regulations do not
include specific standards for every
obligation under the statute. This has
been the case in the context of web
accessibility under the ADA. Because
the Department has not adopted specific
technical requirements for web content
through rulemaking, public entities
have not had specific direction on how
to comply with the ADA’s general
requirements of nondiscrimination and
effective communication. However,
public entities still must comply with
these ADA obligations with respect to
their web content and mobile apps,
including before this rule’s effective
date.
19 See
42 U.S.C. 12132.
U.S. Dep’t of Just., Guidance on Web
Accessibility and the ADA, ADA.gov (Mar. 18,
2022), https://www.ada.gov/resources/webguidance/ [https://perma.cc/WH9E-VTCY];
Settlement Agreement Between the United States of
America and the Champaign-Urbana Mass Transit
District (Dec. 14, 2021), https://www.ada.gov/
champaign-urbana_sa.pdf [https://perma.cc/VZU2E6FZ]; Consent Decree, United States v. The
Regents of the Univ. of Cal. (Nov. 20, 2022), https://
www.justice.gov/opa/press-release/file/1553291/
download [https://perma.cc/9AMQ-GPP3]; Consent
Decree, Dudley v. Miami Univ. (Oct. 17, 2016),
https://www.ada.gov/miami_university_cd.html
[https://perma.cc/T3FX-G7RZ]; Settlement
Agreement Between the United States of America
and the City and County of Denver, Colorado Under
the Americans with Disabilities Act (Jan. 8, 2018),
https://www.ada.gov/denver_pca/denver_sa.html
[https://perma.cc/U7VE-MBSG]; Settlement
Agreement Between the United States of America
and Nueces County, Texas Under the Americans
with Disabilities Act (effective Jan. 30, 2015),
https://www.ada.gov/nueces_co_tx_pca/nueces_co_
tx_sa.html [https://perma.cc/TX66-WQY7];
Settlement Agreement Between the United States of
America, Louisiana Tech University, and the Board
of Supervisors for the University of Louisiana
System Under the Americans with Disabilities Act
(July 22, 2013), https://www.ada.gov/louisianatech.htm [https://perma.cc/78ES-4FQR].
20 See
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The Department has consistently
heard from members of the public—
especially public entities and people
with disabilities—that there is a need
for additional information on how to
specifically comply with the ADA in
this context. In June 2003, the
Department published a document titled
‘‘Accessibility of State and Local
Government websites to People with
Disabilities’’ (https://www.ada.gov/
websites2.htm [https://perma.cc/Z7JTUSAN]), which provides tips for State
and local government entities on ways
they can make their websites accessible
so that they can better ensure that
people with disabilities have equal
access to the services, programs, and
activities that are provided through
those websites.
In March 2022, the Department
released additional guidance addressing
web accessibility for people with
disabilities.21 This technical assistance
expanded on the Department’s previous
ADA guidance by providing practical
tips and resources for making websites
accessible for both title II and title III
entities. It also reiterated the
Department’s longstanding
interpretation that the ADA applies to
all services, programs, and activities of
covered entities, including when they
are offered via the web.
The Department’s 2003 guidance on
State and local government entities’
websites noted that ‘‘an agency with an
inaccessible website may also meet its
legal obligations by providing an
alternative accessible way for citizens to
use the programs or services, such as a
staffed telephone information line,’’
while also acknowledging that this is
unlikely to provide an equal degree of
access.22 The Department’s March 2022
guidance did not include 24/7 staffed
telephone lines as an alternative to
accessible websites. Given the way the
modern web has developed, the
Department no longer believes 24/7
staffed telephone lines can realistically
provide equal access to people with
disabilities. Websites—and often mobile
apps—allow the public to get
information or request a service within
just a few minutes. Getting the same
information or requesting the same
service using a staffed telephone line
takes more steps and may result in wait
times or difficulty getting the
21 U.S. Dep’t of Just., Guidance on Web
Accessibility and the ADA, ADA.gov (Mar. 18,
2022), https://www.ada.gov/resources/webguidance/ [https://perma.cc/874V-JK5Z].
22 U.S. Dep’t of Just., Accessibility of State and
Local Government websites to People with
Disabilities, ADA.gov (June 2003), https://
www.ada.gov/websites2.htm [https://perma.cc/
Z7JT-USAN].
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information. For example, State and
local government entities’ websites may
allow members of the public to quickly
review large quantities of information,
like information about how to register
for government services, information on
pending government ordinances, or
instructions about how to apply for a
government benefit. Members of the
public can then use government
websites to promptly act on that
information by, for example, registering
for programs or activities, submitting
comments on pending government
ordinances, or filling out an application
for a government benefit. A member of
the public could not realistically
accomplish these tasks efficiently over
the phone. Additionally, a person with
a disability who cannot use an
inaccessible online tax form might have
to call to request assistance with filling
out either online or mailed forms, which
could involve significant delay, added
costs, and may require providing private
information such as banking details or
Social Security numbers over the phone
without the benefit of certain security
features available for online
transactions. Finally, calling a staffed
telephone line lacks the privacy of
looking up information on a website. A
caller needing public safety resources,
for example, might be unable to access
a private location to ask for help on the
phone, whereas an accessible website
would allow users to privately locate
resources. For these reasons, the
Department does not now believe that a
staffed telephone line—even if it is
offered 24/7—provides equal access in
the way that an accessible website can.
C. The Department’s Previous Web
Accessibility-Related Rulemaking
Efforts
The Department has previously
pursued rulemaking efforts regarding
website accessibility under title II. On
July 26, 2010, the Department’s advance
notice of proposed rulemaking
(‘‘ANPRM’’) titled ‘‘Accessibility of Web
Information and Services of State and
Local Government Entities and Public
Accommodations’’ was published in the
Federal Register.23 The ANPRM
announced that the Department was
considering revising the regulations
implementing titles II and III of the ADA
to establish specific requirements for
State and local government entities and
public accommodations to make their
websites accessible to individuals with
disabilities. In the ANPRM, the
Department sought information
regarding what standards, if any, it
should adopt for web accessibility;
23 75
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51953
whether the Department should adopt
coverage limitations for certain entities,
like small businesses; and what
resources and services are available to
make existing websites accessible to
individuals with disabilities. The
Department also requested comments on
the costs of making websites accessible;
whether there are effective and
reasonable alternatives to make websites
accessible that the Department should
consider permitting; and when any web
accessibility requirements adopted by
the Department should become
effective. The Department received
approximately 400 public comments
addressing issues germane to both titles
II and III in response to this ANPRM.
The Department later announced that it
decided to pursue separate rulemakings
addressing website accessibility under
titles II and III.24
On May 9, 2016, the Department
followed up on its 2010 ANPRM with a
detailed Supplemental ANPRM that was
published in the Federal Register. The
Supplemental ANPRM solicited public
comment about a variety of issues
regarding establishing technical
standards for web access under title II.25
The Department received more than 200
public comments in response to the title
II Supplemental ANPRM.
On December 26, 2017, the
Department published a Notice in the
Federal Register withdrawing four
rulemaking actions, including the titles
II and III web rulemakings, stating that
it was evaluating whether promulgating
specific web accessibility standards
through regulations was necessary and
appropriate to ensure compliance with
the ADA.26 The Department has also
previously stated that it would continue
to review its entire regulatory landscape
and associated agenda, pursuant to the
regulatory reform provisions of
Executive Order 13771 and Executive
Order 13777.27 Those Executive Orders
24 See Department of Justice—Fall 2015 Statement
of Regulatory Priorities, https://www.reginfo.gov/
public/jsp/eAgenda/StaticContent/201510/
Statement_1100.html [https://perma.cc/YF2LFTSK].
25 Nondiscrimination on the Basis of Disability;
Accessibility of Web Information and Services of
State and Local Government Entities, 81 FR 28658
(May 9, 2016).
26 Nondiscrimination on the Basis of Disability;
Notice of Withdrawal of Four Previously
Announced Rulemaking Actions, 82 FR 60932 (Dec.
26, 2017).
27 See Letter for Charles E. Grassley, U.S. Senator,
from Stephen E. Boyd, Assistant Attorney General,
Civil Rights Division, Department of Justice (Oct.
11, 2018), https://www.grassley.senate.gov/imo/
media/doc/2018-10-11%20DOJ%20to
%20Grassley%20-%20ADA%20website
%20Accessibility.pdf [https://perma.cc/8JHSFK2Q].
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were revoked by Executive Order 13992
in early 2021.
The Department is now reengaging in
efforts to promulgate regulations
establishing technical standards for web
accessibility for public entities.
Accordingly, the Department has begun
this distinct rulemaking effort to address
web access under title II of the ADA.
ddrumheller on DSK120RN23PROD with PROPOSALS2
D. Need for Department Action
1. Use of Web Content by Title II
Entities
Public entities regularly use the web
to disseminate information and offer
programs and services to the public.
Public entities use a variety of websites
to streamline their programs and
services. Members of the public
routinely make online service
requests—from requesting streetlight
repairs and bulk trash pickups to
reporting broken parking meters—and
can often check the status of a service
request online. Public entities’ websites
also offer the opportunity for people to
renew their vehicle registrations, submit
complaints, purchase event permits, and
pay traffic fines and property taxes,
making some of these otherwise timeconsuming tasks relatively easy and
expanding their availability beyond
regular business hours. Moreover,
applications for many Federal benefits,
such as unemployment benefits and
food stamps, are available through State
websites.
People also rely on public entities’
websites to engage in civic
participation, particularly when more
individuals prefer or need to stay at
home in light of changes to preferences
and behavior resulting from the COVID–
19 pandemic. The Department believes
that although many public health
measures addressing the COVID–19
pandemic are no longer in place, there
have been durable changes to State and
local government entities’ operations
and public preferences that necessitate
greater access to online services,
programs, and activities.
People can now frequently watch
local public hearings, read minutes from
community meetings, or take part in live
chats with government officials on the
websites of State and local government
entities. Many public entities allow
voters to begin the voter registration
process and obtain candidate
information on their websites.
Individuals interested in running for
local public offices can often find
pertinent information concerning
candidate qualifications and filing
requirements on these websites as well.
The websites of public entities also
include information about a range of
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issues of concern to the community and
about how people can get involved in
community efforts to improve the
administration of government services.
Many public entities use online
resources to promote access to public
benefits. People can use websites of
public entities to file for unemployment
or other benefits and find and apply for
job openings. Access to these online
functions became even more crucial
during the COVID–19 pandemic, when
millions of Americans lost their jobs
and government services were often not
available in person.28 As noted
previously, the Department believes that
although many of these services have
become available in person again as
COVID–19 public health measures have
ended, State and local government
entities will continue to offer these
services online due to durable shifts in
preferences and expectations resulting
from the pandemic. For example,
through the websites of State and local
government entities, business owners
can register their businesses, apply for
occupational and professional licenses,
bid on contracts to provide products
and services to public entities, and
obtain information about laws and
regulations with which they must
comply. The websites of many State and
local government entities also allow
members of the public to research and
verify business licenses online and
report unsavory business practices.
Access to these online services can be
particularly important for any services
that have not resumed in-person
availability.
Public entities are also using websites
as an integral part of public education.
Public schools at all levels, including
public colleges and universities, offer
programs, reading material, and
classroom instruction through websites.
Access to these sites became even more
critical during the COVID–19 pandemic,
when, at one point, all U.S. public
school buildings were closed.29 Web
access is essential, and, during part of
the COVID–19 pandemic, it was often
the only way for State and local
government entities to provide students
with educational services, programs,
28 See Rakesh Kochhar & Jesse Bennet, U.S. Labor
Market Inches Back from the Covid–19 Shock, but
Recovery is Far from Complete, Pew Research
Center (Apr. 14, 2021), https://
www.pewresearch.org/fact-tank/2021/04/14/u-slabor-market-inches-back-from-the-covid-19-shockbut-recovery-is-far-from-complete/ [https://
perma.cc/29E5-LMXM].
29 See The Coronavirus Spring: The Historic
Closing of U.S. Schools (A Timeline), Education
Week (July 1, 2020), https://www.edweek.org/
leadership/the-coronavirus-spring-the-historicclosing-of-u-s-schools-a-timeline/2020/07 [https://
perma.cc/47E8-FJ3U].
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and activities like public school classes
and exams. As noted previously, the
Department believes durable changes to
preferences and behavior due to the
COVID–19 pandemic will result in
many educational activities continuing
to be offered online. Most public
colleges and universities rely heavily on
websites and other online technologies
in the application process for
prospective students; for housing
eligibility and on-campus living
assignments; course registration,
assignments, and discussion groups;
and for a wide variety of administrative
and logistical functions in which
students and staff must participate.
Similarly, in many public elementary
and secondary school settings,
communications via the web are how
teachers and administrators
communicate grades, assignments, and
administrative matters to parents and
students.
As noted previously, access to the
web has become increasingly important
as a result of the COVID–19 pandemic,
which shut down workplaces, schools,
and in-person services, and has forced
millions of Americans to stay home for
extended periods.30 In response, the
American public has turned to the web
for work, activities, and learning.31 In
fact, a study conducted in April 2021
found that 90 percent of adults say the
web ‘‘has been at least important to
them personally during the
pandemic.’’ 32 Fifty-eight percent say it
has been essential.33 Web access can be
particularly important for those who
live in rural communities and need to
travel long distances to reach certain
physical locations like schools and
libraries.34
Currently, a large number of
Americans interact with public entities
remotely and many State and local
government entities provide vital
information and services for the general
public online, including information on
recreational and educational programs,
school closings, State travel restrictions,
30 See Colleen McClain et al., The internet and
the Pandemic, Pew Research Center (Sep. 1, 2021),
https://www.pewresearch.org/internet/2021/09/01/
the-internet-and-the-pandemic/ [https://perma.cc/
4WVA-FQ9P].
31 See Kerry Dobransky & Eszter Hargittai,
Piercing the Pandemic Social Bubble: Disability and
Social Media Use About COVID–19, American
Behavioral Scientist (Mar. 29, 2021), https://doi.org/
10.1177/00027642211003146. A Perma archive link
was unavailable for this citation.
32 McClain et al., The internet and the Pandemic,
at 3.
33 Id.
34 John Lai & Nicole O. Widmar, Revisiting the
Digital Divide in the COVID–19 Era, 43 Applied
Econ. Perspectives and Pol’y 458 (2020), https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC7675734/
[https://perma.cc/Y75D-XWCT].
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food assistance and employment,
guidance for health care providers, and
workplace safety.35 Access to such webbased information and services, while
important for everyone during the
pandemic, took on heightened
importance for people with disabilities,
many of whom face a greater risk of
COVID–19 exposure, serious illness,
and death.36
According to the CDC, some people
with disabilities ‘‘might be more likely
to get infected or have severe illness
because of underlying medical
conditions, congregate living settings, or
systemic health and social inequities.
All people with serious underlying
chronic medical conditions like chronic
lung disease, a serious heart condition,
or a weakened immune system seem to
be more likely to get severely ill from
COVID–19.’’ 37 A report by the National
Council on Disability indicated that
COVID–19 has a disproportionately
negative impact on people with
disabilities’ access to healthcare,
education, and employment, among
other areas, making remote access to
these opportunities via the web even
more important.38
Individuals with disabilities can often
be denied equal access to many services,
programs, and activities because many
public entities’ web content is not fully
accessible. Thus, there is a digital divide
between the ability of people with
certain types of disabilities and people
without those disabilities to access the
services, programs, and activities of
their State and local government
entities.
ddrumheller on DSK120RN23PROD with PROPOSALS2
2. Use of Mobile Applications by Title II
Entities
The Department is also proposing that
public entities make their mobile apps
35 See, e.g., Coronavirus Disease 2019 (COVID–19)
Outbreak, Maryland.gov, https://
coronavirus.maryland.gov/ [https://perma.cc/
NAW4-6KP4]; Covid19.CA, California.gov, https://
covid19.ca.gov/ [https://perma.cc/BL9C-WTJP];
Washington State Coronavirus Response,
Washington State, https://coronavirus.wa.gov/
[https://perma.cc/KLA4-KY53].
36 See Hannah Eichner, The Time is Now to
Vaccinate High-Risk People with Disabilities,
National Health Law Program (Mar. 15, 2021),
https://healthlaw.org/the-time-is-now-to-vaccinatehigh-risk-people-with-disabilities/ [https://
perma.cc/8CM8-9UC4].
37 See People with Disabilities, Centers for Disease
Control and Prevention, https://www.cdc.gov/
ncbddd/humandevelopment/covid-19/people-withdisabilities.html?CDC_AA_
refVal=https%3A%2F%2Fwww.cdc.gov
%2Fcoronavirus%2F2019-ncov%2Fneed-extraprecautions%2Fpeople-with-disabilities.html
[https://perma.cc/WZ7U-2EQE].
38 See 2021 Progress Report: The Impact of
COVID–19 on People with Disabilities, National
Council on Disability (Oct. 29, 2021), https://
ncd.gov/progressreport/2021/2021-progress-report
[https://perma.cc/96L7-XMKZ].
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accessible under proposed § 35.200
because public entities also use mobile
apps to offer their services, programs,
and activities to the public. As
discussed, a mobile app is a software
application that runs on mobile devices.
Mobile apps are distinct from a website
that can be accessed by a mobile device
because, in part, mobile apps are not
directly accessible on the web—they are
often downloaded on a mobile device.39
A mobile website, on the other hand, is
a website that is designed so that it can
be accessed by a mobile device similarly
to how it can be accessed on a desktop
computer.40
Public entities use mobile apps to
provide services and reach the public in
various ways. For example, during the
COVID–19 pandemic, when many State
and local government entities’ offices
were closed, public entities used mobile
apps to inform people about benefits
and resources, to provide updates about
the pandemic, and as a means to show
proof of vaccination status, among other
things.41 Also, using a public entity’s
mobile app, residents are able to submit
nonemergency service requests, such as
cleaning graffiti or repairing a street
light outage, and track the status of
these requests. Public entities’ apps take
advantage of common features of mobile
devices, such as camera and Global
Positioning System (‘‘GPS’’) functions,
so individuals can provide public
entities with a precise description and
location of issues.42 These may include
issues such as potholes, physical
barriers created by illegal dumping or
parking, or curb ramps that need to be
fixed to ensure accessibility for some
people with disabilities.43 Some public
transit authorities have transit apps that
use a mobile device’s GPS function to
provide bus riders with the location of
nearby bus stops and real-time arrival
and departure times.44 In addition,
public entities are also using mobile
39 Mona Bushnell, What Is the Difference Between
an App and a Mobile website?, Business News Daily
(updated Aug. 2, 2022), https://
www.businessnewsdaily.com/6783-mobile-websitevs-mobile-app.html [https://perma.cc/9LKC-GUEM].
40 Id.
41 See, e.g., COVID–19 Virginia Resources,
Virginia Department of Social Services, https://
apps.apple.com/us/app/covid-19-virginiaresources/id1507112717 [https://perma.cc/LP6NWC9K]; Chandra Steele, Does My State Have a
COVID–19 Vaccine App, PC Mag (updated Feb. 10,
2022), https://www.pcmag.com/how-to/does-mystate-have-a-covid-19-vaccine-app [https://
perma.cc/H338-MCWC].
42 See Using Mobile Apps in Government, IBM
Ctr. for the Bus. of Gov’t, at 11 (2015), https://
www.businessofgovernment.org/sites/default/files/
Using%20Mobile%20Apps%20in%20
Government.pdf [https://perma.cc/248X-8A6C].
43 Id. at 32.
44 Id. at 31.
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apps to assist with emergency planning
for natural disasters like wildfires;
provide information about local schools;
and promote tourism, civic culture, and
community initiatives.45
3. Barriers to Web and Mobile App
Accessibility
Millions of individuals in the United
States have disabilities that can affect
their use of the web and mobile apps.
Many of these individuals use assistive
technology to enable them to navigate
websites or access information
contained on those sites. For example,
individuals who are unable to use their
hands may use speech recognition
software to navigate a website, while
individuals who are blind may rely on
a screen reader to convert the visual
information on a website into speech.
Many websites and mobile apps fail to
incorporate or activate features that
enable users with certain types of
disabilities to access all of the
information or elements on the website
or app. For instance, individuals who
are deaf may be unable to access
information in web videos and other
multimedia presentations that do not
have captions. Individuals with low
vision may be unable to read websites
or mobile apps that do not allow text to
be resized or do not provide enough
contrast. Individuals with limited
manual dexterity or vision disabilities
who use assistive technology that
enables them to interact with websites
may be unable to access sites that do not
support keyboard alternatives for mouse
commands. These same individuals,
along with individuals with cognitive
and vision disabilities, often encounter
difficulty using portions of websites that
require timed responses from users but
do not give users the opportunity to
indicate that they need more time to
respond.
Individuals who are blind or have low
vision often confront significant barriers
to accessing websites and mobile apps.
For example, a study from the
University of Washington analyzed
approximately 10,000 mobile apps and
found that many are highly inaccessible
to people with disabilities.46 The study
found that 23 percent of the mobile apps
reviewed did not provide content
description of images for most of their
image-based buttons. As a result, the
functionality of those buttons is not
accessible for people who use screen
45 Id.
at 8.
Large-Scale Analysis Finds Many Mobile
Apps Are Inaccessible, University of Washington
CREATE, https://create.uw.edu/initiatives/largescale-analysis-finds-many-mobile-apps-areinaccessible/ [https://perma.cc/442K-SBCG].
46 See
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readers.47 Additionally, other mobile
apps may be inaccessible if they do not
allow text resizing, which can provide
larger text for persons with vision
disabilities.48
Furthermore, many websites provide
information visually, without features
that allow screen readers or other
assistive technology to retrieve
information on the website so it can be
presented in an accessible manner. A
common barrier to website accessibility
is an image or photograph without
corresponding text describing the image.
A screen reader or similar assistive
technology cannot ‘‘read’’ an image,
leaving individuals who are blind with
no way of independently knowing what
information the image conveys (e.g., a
simple icon or a detailed graph).
Similarly, if websites lack navigational
headings or links that facilitate
navigation using a screen reader, it will
be difficult or impossible for a someone
using a screen reader to understand.49
Additionally, these websites may fail to
present tables in a way that allows the
information in the table to be
interpreted by someone who is using a
screen reader.50 Web-based forms,
which are an essential part of accessing
government services, are often
inaccessible to individuals with
disabilities who use screen readers. For
example, field elements on forms,
which are the empty boxes on forms
that hold specific pieces of information,
such as a last name or telephone
number, may lack clear labels that can
be read by assistive technology.
Inaccessible form fields make it difficult
for persons using screen readers to fill
out online forms, pay fees and fines,
submit donations, or otherwise
participate in government services,
programs, or activities using a website.
Some governmental entities use
inaccessible third-party websites to
accept online payments, while others
request public input through their own
inaccessible websites. These barriers
greatly impede the ability of individuals
with disabilities to access the services,
programs, and activities offered by
public entities on the web. In many
instances, removing certain website
barriers is neither difficult nor
especially costly. For example, the
47 Id.
48 See Chase DiBenedetto, 4 ways mobile apps
could be a lot more accessible, Mashable (Dec. 9,
2021), https://mashable.com/article/mobile-appsaccessibility-fixes [https://perma.cc/WC6M-2EUL].
49 See, e.g., W3C®, Easy Checks—A First Review
of Web Accessibility, (updated Jan. 31, 2023),
https://www.w3.org/WAI/test-evaluate/preliminary/
[https://perma.cc/N4DZ-3ZB8].
50 W3C®, Tables Tutorial (updated Feb. 16, 2023),
https://www.w3.org/WAI/tutorials/tables/ [https://
perma.cc/FMG2-33C4].
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addition of invisible attributes known as
alt text or alt tags to an image helps
orient an individual using a screen
reader and allows them to gain access to
the information on the website. Alt text
can be added to the coding of a website
without any specialized equipment.51
Similarly, adding headings, which
facilitate page navigation for those using
screen readers, can often be done easily
as well.52
4. Voluntary Compliance With
Technical Standards for Web
Accessibility Has Been Insufficient in
Providing Access
The web has changed significantly
and its use has become far more
prevalent since Congress enacted the
ADA in 1990 and the Department
subsequently promulgated its first ADA
regulations. Neither the ADA nor the
Department’s regulations specifically
addressed public entities’ use of
websites and mobile apps to provide
their services, programs, and activities.
Congress contemplated, however, that
the Department would apply title II, part
A of the statute in a manner that
evolved over time and it delegated
authority to the Attorney General to
promulgate regulations to carry out the
ADA mandate under title II, part A.53
Consistent with this approach, the
Department stated in the preamble to
the original 1991 ADA regulations that
the regulations should be interpreted to
keep pace with developing
technologies.54
Since 1996, the Department has
consistently taken the position that the
ADA applies to the web content of State
and local government entities. This
interpretation comes from title II’s
application to ‘‘all services, programs,
and activities provided or made
available by public entities.’’ 55 The
Department has affirmed the application
of the statute to websites in multiple
technical assistance documents over the
past two decades.56 Further, the
51 W3C®, Images Tutorial (Feb. 08, 2022), https://
www.w3.org/WAI/tutorials/images/ [https://
perma.cc/G6TL-W7ZC].
52 W3C®, Providing Descriptive Headings (June
20, 2023), https://www.w3.org/WAI/WCAG21/
Techniques/general/G130.html [https://perma.cc/
XWM5-LL6S].
53 See H.R. Rep. No. 101–485, pt. 2, at 108 (1990);
42 U.S.C. 12134(a).
54 28 CFR part 36, app. B.
55 See 28 CFR 35.102.
56 U.S. Dep’t of Just., Accessibility of State and
Local Government websites to People with
Disabilities (2003), https://www.ada.gov/
websites2.htm [https://perma.cc/Z7JT-USAN]; U.S.
Dep’t of Just., Chapter 5: website Accessibility
Under Title II of the ADA, ADA Best Practices Tool
Kit for State and Local Governments, Ada.gov (May
7, 2007), https://www.ada.gov/pcatoolkit/
chap5toolkit.htm [https://perma.cc/VM3M-AHDJ];
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Department has repeatedly enforced this
obligation and worked with State and
local government entities to make their
websites accessible, such as through
Project Civic Access, an initiative to
promote local governments’ compliance
with the ADA by eliminating physical
and communication barriers impeding
full participation by people with
disabilities in community life.57
A variety of voluntary standards and
structures have been developed for the
web through nonprofit organizations
using multinational collaborative
efforts. For example, domain names are
issued and administered through the
internet Corporation for Assigned
Names and Numbers (‘‘ICANN’’), the
internet Society (‘‘ISOC’’) publishes
computer security policies and
procedures for websites, and the World
Wide Web Consortium (‘‘W3C®’’)
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® created the Web Content
Accessibility Guidelines (‘‘WCAG’’).
Many organizations, however, have
indicated that voluntary compliance
with these accessibility guidelines has
not resulted in equal access for people
with disabilities; accordingly, they have
urged the Department to take regulatory
action to ensure web and mobile app
accessibility.58 The National Council on
Disability, an independent Federal
agency that advises the President,
Congress, and other agencies about
programs, policies, practices, and
procedures affecting people with
disabilities, has similarly emphasized
the need for regulatory action on this
issue.59 The Department has also heard
U.S. Dep’t of Just., Guidance on Web Accessibility
and the ADA, Ada.gov (Mar. 18, 2022), https://
https://www.ada.gov/resources/web-guidance/
[https://perma.cc/874V-JK5Z].
57 U.S. Dep’t of Just., Project Civic Access,
Ada.gov, https://www.ada.gov/civicac.htm [https://
perma.cc/B6WV-4HLQ].
58 See, e.g., Letter for U.S. Dep’t of Just. from
American Council of the Blind et al. (Feb. 28, 2022),
https://acb.org/accessibility-standards-joint-letter-228-22 [https://perma.cc/R77M-VPH9] (citing
research showing persistent barriers in digital
accessibility); Letter for U.S. Dep’t of Just. from
Consortium for Citizens with Disabilities (Mar. 23,
2022), https://www.c-c-d.org/fichiers/CCD-WebAccessibility-Letter-to-DOJ-03232022.pdf [https://
perma.cc/Q7YB-UNKV].
59 National Council on Disability, The Need for
Federal Legislation and Regulation Prohibiting
Telecommunications and Information Services
Discrimination (Dec. 19, 2006), https://
www.ncd.gov/publications/2006/Dec282006
[https://perma.cc/7HW5-NF7P] (discussing how
competitive market forces have not proven
sufficient to provide individuals with disabilities
access to telecommunications and information
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from State and local government entities
and businesses asking for clarity on the
ADA’s requirements for websites
through regulatory efforts.60
In light of the long regulatory history
and the ADA’s current general
requirement to make all services,
programs, and activities accessible, the
Department expects that public entities
have made strides to make their web
content accessible since the 2010
ANPRM was published. However,
despite the availability of voluntary web
and mobile app accessibility standards;
the Department’s clearly stated position
that all services, programs, and
activities of public entities, including
those available on websites, must be
accessible; and case law supporting that
position, individuals with disabilities
continue to struggle to obtain access to
the websites of public entities.61 As a
result, the Department has brought
enforcement actions to address web
access, resulting in a significant number
of settlement agreements with State and
local government entities.62
services); see also, e.g., National Council on
Disability, National Disability Policy: A Progress
Report (Oct. 7, 2016), https://ncd.gov/
progressreport/2016/progress-report-october-2016
[https://perma.cc/J82G-6UU8] (urging the
Department to adopt a web accessibility regulation).
60 See, e.g., Letter for U.S. Dep’t of Just. from Nat’l
Ass’n of Realtors (Dec. 13, 2017), https://
www.narfocus.com/billdatabase/clientfiles/172/3/
3058.pdf [https://perma.cc/Z93F-K88P].
61 See, e.g., Meyer v. Walthall, 528 F. Supp. 3d
928, 959 (S.D. Ind. 2021) (‘‘[T]he Court finds that
Defendants’ websites constitute services or
activities within the purview of Title II and section
504, requiring Defendants to provide effective
access to qualified individuals with a disability.’’);
Price v. City of Ocala, Fla., 375 F. Supp. 3d 1264,
1271 (M.D. Fla. 2019) (‘‘Title II undoubtedly applies
to websites . . . .’’); Payan v. Los Angeles Cmty.
Coll. Dist., No. 2:17–CV–01697–SVW–SK, 2019 WL
9047062, at *12 (C.D. Cal. Apr. 23, 2019) (‘‘[T]he
ability to sign up for classes on the website and to
view important enrollment information is itself a
‘service’ warranting protection under Title II and
section 504.’’); Eason v. New York State Bd. of
Elections, No. 16–CV–4292 (KBF), 2017 WL
6514837, at *1 (S.D.N.Y. Dec. 20, 2017) (stating, in
a case involving a State’s website, that ‘‘Section 504
of the Rehabilitation Act and Title II of the
Americans with Disabilities Act . . . , long ago
provided that the disabled are entitled to
meaningful access to a public entity’s programs and
services. Just as buildings have architecture that can
prevent meaningful access, so too can software.’’);
Hindel v. Husted, No. 2:15–CV–3061, 2017 WL
432839, at *5 (S.D. Ohio Feb. 1, 2017) (‘‘The Court
finds that Plaintiffs have sufficiently established
that Secretary Husted’s website violates Title II of
the ADA because it is not formatted in a way that
is accessible to all individuals, especially blind
individuals like the Individual Plaintiffs whose
screen access software cannot be used on the
website.’’).
62 See, e.g., Settlement Agreement Between the
United States of America and the ChampaignUrbana Mass Transit District (Dec. 14, 2021),
https://www.ada.gov/champaign-urbana_sa.pdf
[https://perma.cc/VZU2-E6FZ]; Consent Decree,
United States v. The Regents of the Univ. of Cal.
(Nov. 20, 2022), https://www.justice.gov/opa/press-
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Moreover, other Federal agencies have
also taken enforcement action against
public entities regarding the lack of
access for people with disabilities to
websites. In December 2017, for
example, the U.S. Department of
Education entered into a resolution
agreement with the Alaska Department
of Education and Early Development
after it found the entity had violated
Federal statutes, including title II of the
ADA, by denying people with
disabilities an equal opportunity to
participate in Alaska Department of
Education and Early Development’s
services, programs, and activities, due to
website inaccessibility.63 Similarly, the
U.S. Department of Housing and Urban
Development took action against the
City of Los Angeles, and its subrecipient
housing providers, to ensure that it
maintained an accessible housing
website concerning housing
opportunities.64
The Department believes that
adopting technical standards for web
and mobile app accessibility will
provide clarity to public entities
regarding how to make the services,
programs, and activities they offer the
public via the web and mobile apps
accessible. Adopting specific technical
standards for web and mobile app
accessibility will also provide
individuals with disabilities with
consistent and predictable access to the
web content and mobile apps of public
entities.
release/file/1553291/download [https://perma.cc/
9AMQ-GPP3]; Consent Decree, Dudley v. Miami
Univ. (Oct. 13, 2016), https://www.ada.gov/miami_
university_cd.html [https://perma.cc/T3FX-G7RZ];
Settlement Agreement Between the United States of
America and the City and County of Denver,
Colorado Under the Americans with Disabilities Act
(Jan. 8, 2018), https://www.ada.gov/denver_pca/
denver_sa.html [https://perma.cc/U7VE-MBSG];
Settlement Agreement Between the United States of
America and Nueces County, Texas Under the
Americans with Disabilities Act (effective Jan. 30,
2015), https://www.ada.gov/nueces_co_tx_pca/
nueces_co_tx_sa.html [https://perma.cc/TX66WQY7]; Settlement Agreement Between the United
States of America, Louisiana Tech University, and
the Board of Supervisors for the University of
Louisiana System Under the Americans with
Disabilities Act (July 22, 2013), https://
www.ada.gov/louisiana-tech.htm [https://perma.cc/
78ES-4FQR].
63 In re Alaska Dep’t of Educ. and Early Dev.,
OCR Reference No. 10161093 (U.S. Dep’t of Educ.
Dec. 11, 2017) (resolution agreement), https://
www2.ed.gov/about/offices/list/ocr/docs/
investigations/more/10161093-b.pdf [https://
perma.cc/DUS4-HVZJ], superseded by https://
www2.ed.gov/about/offices/list/ocr/docs/
investigations/more/10161093-b1.pdf [https://
perma.cc/BVL6-Y59M] (U.S. Dep’t of Educ. Mar. 28,
2018) (revised resolution agreement).
64 See Voluntary Compliance Agreement Between
the U.S. Department of Housing and Urban
Development and the City of Los Angeles,
California (Aug. 2, 2019), https://www.hud.gov/
sites/dfiles/Main/documents/HUD-City-of-LosAngeles-VCA.pdf [https://perma.cc/X5RN-AJ5K].
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IV. Section-by-Section Analysis
This section details the Department’s
proposed changes to the title II
regulation, including the reasoning
behind the proposals, and poses
questions for public comment.
Subpart A—General
§ 35.104
Definitions
‘‘Archived Web Content’’
The Department proposes to add a
definition for ‘‘archived web content’’ to
proposed § 35.104. The proposed
definition defines ‘‘archived web
content’’ as ‘‘web content that (1) is
maintained exclusively for reference,
research, or recordkeeping; (2) is not
altered or updated after the date of
archiving; and (3) is organized and
stored in a dedicated area or areas
clearly identified as being archived.’’
The definition is meant to capture web
content that, while outdated or
superfluous, is maintained unaltered in
a dedicated area on a public entity’s
website for historical, reference, or other
similar purposes, and the term is used
in the proposed exceptions set forth in
§ 35.201. Throughout this rule, a public
entity’s ‘‘website’’ is intended to include
not only the websites hosted by the
public entity, but also websites operated
on behalf of a public entity by a third
party. For example, public entities
sometimes use vendors to create and
host their web content. Such content
would also be covered by this rule.
‘‘Conventional Electronic Documents’’
The Department proposes to add a
definition for ‘‘conventional electronic
documents’’ to proposed § 35.104. The
proposal defines ‘‘conventional
electronic documents’’ as ‘‘web content
or content in mobile apps that is in the
following electronic file formats:
portable document formats (‘PDFs’),
word processor file formats,
presentation file formats, spreadsheet
file formats, and database file formats.’’
The definition thus provides an
exhaustive list of electronic file formats
that constitute conventional electronic
documents. Examples of conventional
electronic documents include: Adobe
PDF files (i.e., portable document
formats), Microsoft Word files (i.e.,
word processor files), Apple Keynote or
Microsoft PowerPoint files (i.e.,
presentation files), Microsoft Excel files
(i.e., spreadsheet files), and FileMaker
Pro or Microsoft Access files (i.e.,
database files).
The term ‘‘conventional electronic
documents’’ is intended to describe
those documents created or saved as an
electronic file that are commonly
available on public entities’ websites
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and mobile apps in either an electronic
form or as printed output. The term is
intended to capture documents where
the version posted by the public entity
is not open for editing by the public. For
example, if a public entity maintains a
Word version of a flyer on its website,
that would be a conventional electronic
document. A third party could
technically download and edit that
Word document, but their edits would
not impact the ‘‘official’’ posted version.
Similarly, a Google Docs file that does
not allow others to edit or add
comments in the posted document
would be a conventional electronic
document. The term ‘‘conventional
electronic documents’’ is used in
proposed § 35.201(b) to provide an
exception for certain electronic
documents created by or for a public
entity that are available on a public
entity’s website before the compliance
date of this rule and in proposed
§ 35.201(g) to provide an exception for
certain individualized, passwordprotected documents, and is addressed
in more detail in the discussion
regarding proposed §§ 35.201(b) and (g).
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‘‘Mobile Applications (Apps)’’
Mobile apps are software applications
that are downloaded and designed to
run on mobile devices such as
smartphones and tablets. For the
purposes of this part, mobile apps
include, for example, native apps built
for a particular platform (e.g., Apple
iOS, Google Android, among others) or
device and hybrid apps using web
components inside native apps.
‘‘Special District Government’’
The Department proposes to add a
definition for a ‘‘special district
government.’’ The term ‘‘special district
government’’ is used in proposed
§ 35.200(b) and is defined in proposed
§ 35.104 to mean ‘‘a public entity—other
than a county, municipality, or
township, or independent school
district—authorized by State law to
provide one function or a limited
number of designated functions with
sufficient administrative and fiscal
autonomy to qualify as a separate
government and whose population is
not calculated by the United States
Census Bureau in the most recent
decennial Census or Small Area Income
and Poverty Estimates.’’ Because special
district governments do not have
populations calculated by the United
States Census Bureau, their population
sizes are unknown. A special district
government may include, for example, a
mosquito abatement district, utility
district, transit authority, water and
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similar governmental entities that may
operate with administrative and fiscal
independence.
‘‘Total Population’’
The Department proposes to add a
definition for ‘‘total population.’’ The
term ‘‘total population’’ means ‘‘the
population estimate for a public entity
as calculated by the United States
Census Bureau in the most recent
decennial Census or, if a public entity
is an independent school district, the
population estimate as calculated by the
United States Census Bureau in the
most recent Small Area Income and
Poverty Estimates.’’
As mentioned previously, proposed
§ 35.200 generally proposes different
compliance dates according to a public
entity’s size. The term ‘‘total
population’’ is generally used in
proposed § 35.200 to refer to the size of
a public entity’s population as
calculated by the U.S. Census Bureau in
the most recent decennial Census. If a
public entity does not have a specific
population calculated by the U.S.
Census Bureau, but belongs to another
jurisdiction that does, the population of
the entity is determined by the
population of the jurisdiction to which
the entity belongs. For example, the
total population of a county library is
the population of the county to which
the library belongs. However, because
the decennial Census does not include
population estimates for public entities
that are independent school districts,
the term ‘‘total population’’ with regard
to independent school districts refers to
population estimates in the most recent
Small Area Income and Poverty
Estimates, which includes population
estimates for these entities.
‘‘WCAG 2.1’’
The Department proposes to add a
definition of ‘‘WCAG 2.1.’’ The term
‘‘WCAG 2.1’’ refers to the 2018 version
of the voluntary guidelines for web
accessibility, known as the Web Content
Accessibility Guidelines 2.1 (‘‘WCAG’’).
The W3C®, the principal international
organization involved in developing
standards for the web, published WCAG
2.1 in June 2018, and it is available at
https://www.w3.org/TR/WCAG21/.
WCAG 2.1 is discussed in more detail
in proposed § 35.200 below.
‘‘Web Content’’
The Department proposes to add a
definition for ‘‘web content’’ under
proposed § 35.104 that is based on the
WCAG 2.1 definition but is slightly less
technical and intended to be more easily
understood by the public generally. The
Department’s proposal defines ‘‘web
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content’’ as ‘‘information or sensory
experience—including the encoding
that defines the content’s structure,
presentation, and interactions—that is
communicated to the user by a web
browser or other software. Examples of
web content include text, images,
sounds, videos, controls, animations,
and conventional electronic
documents.’’ WCAG 2.1 defines web
content as ‘‘information and sensory
experience to be communicated to the
user by means of a user agent, including
code or markup that defines the
content’s structure, presentation, and
interactions.’’ 65
The definition of ‘‘web content’’
attempts to describe the different types
of information and experiences
available on the web. The Department’s
NPRM proposes to cover the
accessibility of public entities’ web
content available on public entities’
websites and web pages regardless of
whether the web content is viewed on
desktop computers, laptops,
smartphones, or other devices.
The definition of ‘‘web content’’ also
includes the encoding used to create the
structure, presentation, or interactions
of the information or experiences on
web pages that range in complexity
from, for example, pages with only
textual information to pages where users
can complete transactions. Examples of
languages used to create web pages
include Hypertext Markup Language
(‘‘HTML’’), Cascading Style Sheets
(‘‘CSS’’), Python, SQL, PHP, and
JavaScript.
The Department poses questions for
feedback about its proposed approach.
Comments on all aspects of this
proposed rule, including these proposed
definitions, are invited. Please provide
as much detail as possible and any
applicable data, suggested alternative
approaches or requirements, arguments,
explanations, and examples in your
responses to the following questions.
Question 1: The Department’s
definition of ‘‘conventional electronic
documents’’ consists of an exhaustive
list of specific file types. Should the
Department instead craft a more flexible
definition that generally describes the
types of documents that are covered or
otherwise change the proposed
definition, such as by including other
file types (e.g., images or movies), or
removing some of the listed file types?
Question 2: Are there refinements to
the definition of ‘‘web content’’ the
Department should consider? Consider,
65 See W3C®, Web Content Accessibility
Guidelines 2.1 (June 5, 2018), https://www.w3.org/
TR/WCAG21/#glossary [https://perma.cc/YB57ZB8C].
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for example, WCAG 2.1’s definition of
‘‘web content’’ as ‘‘information and
sensory experience to be communicated
to the user by means of a user agent,
including code or markup that defines
the content’s structure, presentation,
and interactions.’’
Subpart H—Web and Mobile
Accessibility
The Department is proposing to create
a new subpart to its title II regulation.
Subpart H would address the
accessibility of public entities’ web
content and mobile apps.
§ 35.200 Requirements for Web and
Mobile Accessibility
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General
Proposed § 35.200 sets forth specific
requirements for the accessibility of web
content and mobile apps of public
entities. Proposed § 35.200(a) requires a
public entity to ‘‘ensure the following
are readily accessible to and usable by
individuals with disabilities: (1) web
content that a public entity makes
available to members of the public or
uses to offer services, programs, or
activities to members of the public; and
(2) mobile apps that a public entity
makes available to members of the
public or uses to offer services,
programs, or activities to members of
the public.’’ As detailed below, the
remainder of proposed § 35.200 sets
forth the specific standards that public
entities would be required to meet to
make their web content and mobile apps
accessible and the proposed timelines
for compliance.
Background on Accessibility Standards
for Websites and Web Content
Since 1994, the W3C® has been the
principal international organization
involved in developing protocols and
guidelines for the web.66 The W3C®
develops a variety of voluntary
technical standards and guidelines,
including ones relating to privacy,
internationalization of technology, and,
relevant to this rulemaking,
accessibility. The W3C®’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, WCAG
1.0, was published in 1999. WCAG 2.0
was published in December 2008, and is
available at https://www.w3.org/TR/
2008/REC-WCAG20-20081211/ [https://
perma.cc/L2NH-VLCR]. WCAG 2.0 was
approved as an international standard
66 W3C®, About Us, https://www.w3.org/about/
[https://perma.cc/TQ2W-T377].
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by the International Organization for
Standardization (‘‘ISO’’) and the
International Electrotechnical
Commission (‘‘IEC’’) in October 2012.67
WCAG 2.1, the most recent and updated
recommendation of WCAG, was
published in June 2018, and is available
at https://www.w3.org/TR/WCAG21/
[https://perma.cc/UB8A-GG2F].68
WCAG 2.1 contains four principles
that provide the foundation for web
accessibility: perceivable, operable,
understandable, and robust.69 Testable
success criteria (i.e., requirements for
web accessibility that are measurable)
are provided ‘‘to be used where
requirements and conformance testing
are necessary such as in design
specification, purchasing, regulation
and contractual agreements.’’ 70 Thus,
WCAG 2.1 contemplates establishing
testable success criteria that could be
used in regulatory efforts such as this
one.
Proposed WCAG Version
The Department is proposing to adopt
WCAG 2.1 as the technical standard for
web and mobile app accessibility under
title II. WCAG 2.1 was published in June
2018 and is available at https://
www.w3.org/TR/WCAG21/ [https://
perma.cc/UB8A-GG2F]. WCAG 2.1
represents the most recent and updated
published recommendation of WCAG.
WCAG 2.1 incorporates and builds upon
WCAG 2.0—meaning that WCAG 2.1
includes all of the WCAG 2.0 success
criteria, in addition to success criteria
that were developed under WCAG 2.1.71
Specifically, WCAG 2.1 added 12 Level
A and AA success criteria to the 38
success criteria contained in WCAG 2.0
Level AA.72 The additional criteria
provide important accessibility benefits,
67 W3C®, Web Accessibility Guidelines 2.0
Approved as ISO/IEC International Standard (Oct.
15, 2012), https://www.w3.org/press-releases/2012/
wcag2pas/[https://perma.cc/JQ39-HGKQ].
68 See W3C®, Web Content Accessibility
Guidelines 2.1 (June 5, 2018), https://www.w3.org/
TR/WCAG21/#wcag-2-layers-of-guidance [https://
perma.cc/5PDG-ZTJE]. Additionally, in May 2021,
WAI published a working draft for WCAG 2.2,
which has yet to be finalized. W3C®, Web Content
Accessibility Guidelines 2.2 (May 21, 2021), https://
www.w3.org/TR/WCAG22/ [https://perma.cc/M4G8Z2GY]. The WAI also published a working draft of
WCAG 3.0 in December 2021. W3C®, Web Content
Accessibility Guidelines 3.0 (Dec. 7, 2021), https://
www.w3.org/TR/wcag-3.0/ [https://perma.cc/7FPQEEJ7].
69 Id.
70 See W3C®, Web Content Accessibility
Guidelines 2.1, WCAG 2 Layers of Guidance (June
5, 2018), https://www.w3.org/TR/WCAG21/#wcag-2layers-of-guidance [https://perma.cc/5PDG-ZTJE]
(emphasis added).
71 W3C®, What’s New in WCAG 2.1 (Aug. 13,
2020), https://www.w3.org/WAI/standardsguidelines/wcag/new-in-21/ [https://perma.cc/
W8HK-Z5QK].
72 Id.
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especially for people with low vision,
manual dexterity disabilities, and
cognitive and learning disabilities.73
The additional criteria are intended to
improve accessibility for mobile web
content and mobile apps.74 The
Department anticipates that WCAG 2.1
is familiar to web developers as it
comprises WCAG 2.0’s requirements—
which have been in existence since
2008—and 12 new Level A and AA
requirements that have been in
existence since 2018.
The Department expects that adopting
WCAG 2.1 as the technical standard will
have benefits that are important to
ensuring access for people with
disabilities to public entities’ services,
programs, and activities. For example,
WCAG 2.1 requires that text be
formatted so that it is easier to read
when magnified.75 This is important, for
example, for people with low vision
who use magnifying tools. Without the
formatting that WCAG 2.1 requires, a
person magnifying the text might find
reading the text disorienting because
they could have to scroll horizontally on
every line.76
WCAG 2.1 also has new success
criteria addressing the accessibility of
mobile apps or web content viewed on
a mobile device. For example, WCAG
2.1 Success Criterion 1.3.4 requires that
page orientation (i.e., portrait or
landscape) not be restricted to just one
orientation, unless a specific display
orientation is essential.77 This feature is
important, for example, for someone
who uses a wheelchair with a tablet
attached to it such that the tablet cannot
be rotated.78 If content only works in
one orientation (i.e., portrait or
landscape) it will not always work for
this individual depending on how the
tablet is oriented, and could render that
content or app unusable for the
person.79 Another WCAG 2.1 success
criterion requires, in part, that if a
device can be operated by motion—for
example, shaking the device to undo
typing—that there be an option to turn
73 Id.
74 See
id.
W3C®, Web Content Accessibility
Guidelines 2.1, Reflow (June 5, 2018), https://
www.w3.org/TR/WCAG21/#reflow [https://
perma.cc/YRP5-M599].
76 See id.
77 See W3C®, Web Content Accessibility
Guidelines 2.1, Orientation (June 5, 2018), https://
www.w3.org/TR/WCAG21/#orientation [https://
perma.cc/FC3E-FRYK].
78 W3C®, What’s New in WCAG 2.1 (Aug. 13,
2020), https://www.w3.org/WAI/standardsguidelines/wcag/new-in-21/ [https://perma.cc/
W8HK-Z5QK]
79 See id.
75 See
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off that motion sensitivity.80 This could
be important, for example, for someone
who has tremors so that they do not
accidentally undo their typing.81
Such accessibility features are critical
for people with disabilities to have
equal access to their State or local
government’s services, programs, and
activities. This is particularly true given
that using mobile devices to access
government services is commonplace.
For example, in August 2022, about 54
percent of visits to Federal Government
websites over the previous 90 days were
from mobile devices.82 In addition,
WCAG 2.1’s incorporation of mobilerelated criteria is important because of
public entities’ increasing use of mobile
apps in offering their services,
programs, and activities via mobile
apps. As discussed in more detail later,
public entities are using mobile apps to
offer a range of critical government
services—from traffic information, to
scheduling trash pickup, to vaccination
appointments.
Because WCAG 2.1 is the most recent
recommended version of WCAG and
generally familiar to web professionals,
the Department expects it is wellpositioned to continue to be relevant
even as technology inevitably evolves.
In fact, the W3C® advises using WCAG
2.1 over WCAG 2.0 when possible
because WCAG 2.1 incorporates more
forward-looking accessibility needs.83
The WCAG standards were designed to
be ‘‘technology neutral.’’ 84 This means
that they are designed to be broadly
applicable to current and future web
technologies.85 Thus, WCAG 2.1 also
allows web and mobile app developers
flexibility and potential for innovation.
The Department also expects that
public entities are likely already
familiar with WCAG 2.1 or will be able
to become familiar quickly. This is
because WCAG 2.1 has been available
since 2018, and it builds upon WCAG
80 See W3C®, Web Content Accessibility
Guidelines 2.1, Motion Actuation (June 5, 2018),
https://www.w3.org/TR/WCAG21/#motionactuation [https://perma.cc/6S93-VX58].
81 See W3C®, What’s New in WCAG 2.1 (Aug. 13,
2020), https://www.w3.org/WAI/standardsguidelines/wcag/new-in-21/ [https://perma.cc/
W8HK-Z5QK].
82 U.S. Gen. Servs. Admin. Digital Analytics
Program, https://analytics.usa.gov/ [https://
perma.cc/2YZP-KCMG].
83 W3C®, WCAG 2.0 Overview (updated Aug. 6,
2022), https://www.w3.org/WAI/standardsguidelines/wcag/ [https://perma.cc/L7NX-8XW3].
84 W3C®, Introduction to Understanding WCAG
(June 20, 2023), https://www.w3.org/WAI/WCAG21/
Understanding/intro [https://perma.cc/XB3YQKVU].
85 See W3C®, Understanding Techniques for
WCAG Success Criteria (June 20, 2023), https://
www.w3.org/WAI/WCAG21/Understanding/
understanding-techniques [https://perma.cc/AMT4XAAL].
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2.0, which has been in existence since
2008 and has been established for years
as a benchmark for accessibility. In
other words, the Department expects
that web developers and professionals
who work for or with public entities are
likely to be familiar with WCAG 2.1. If
they are not already familiar with
WCAG 2.1, the Department expects that
they are at least likely to be familiar
with WCAG 2.0 and will be able to
become acquainted quickly with WCAG
2.1’s 12 additional Level A and AA
success criteria. The Department also
believes that resources exist to help
public entities implement or understand
how to implement not only WCAG 2.0
Level AA, but also WCAG 2.1 Level AA.
Additionally, public entities will have
two or three years to come into
compliance with a final rule, which
should also provide sufficient time to
get acquainted with and implement
WCAG 2.1.
According to the Department’s
research, WCAG 2.1 is also being
increasingly used by members of the
public and governmental entities. In
fact, the Department recently included
WCAG 2.1 in several settlement
agreements with covered entities
addressing inaccessible websites.86
In evaluating what technical standard
to propose, the Department also
considered WCAG 2.0. In addition, the
Department considered the standards
set forth under section 508 of the
Rehabilitation Act of 1973, which
governs the accessibility of the Federal
Government’s web content and is
harmonized with WCAG 2.0.87 In 2017,
when the United States Access Board
adopted WCAG 2.0 as the technical
standard for the Federal Government’s
web content under section 508, WCAG
2.1 had not been finalized.88 The
Department ultimately decided to
86 See, e.g., Settlement Agreement with CVS
Pharmacy, Inc. (Apr. 11, 2022), https://
archive.ada.gov/cvs_sa.pdf [https://perma.cc/
H5KZ-4VVF]; Settlement Agreement with Meijer,
Inc. (Feb. 2, 2022), https://archive.ada.gov/meijer_
sa.pdf [https://perma.cc/5FGD-FK42]; Settlement
Agreement with The Kroger Co. (Jan. 28, 2022),
https://archive.ada.gov/kroger_co_sa.pdf [https://
perma.cc/6ASX-U7FQ]; Settlement Agreement with
Champaign-Urbana Mass Transit Dist. (Dec. 14,
2021), https://www.justice.gov/d9/case-documents/
attachments/2021/12/14/champaign-urbana_sa.pdf
[https://perma.cc/66XY-QGA8]; Settlement
Agreement with Hy-Vee, Inc. (Dec. 1, 2021) https://
archive.ada.gov/hy-vee_sa.pdf [https://perma.cc/
GFY6-BJNE]; Settlement Agreement with Rite Aid
Corp. (Nov. 1, 2021), https://archive.ada.gov/rite_
aid_sa.pdf [https://perma.cc/4HBF-RBK2].
87 36 CFR 1194, app. A.
88 See Information and Communication
Technology (‘‘ICT’’) Standards and Guidelines, 82
FR 5790, 5791 (Jan. 18, 2017); W3C®, Web Content
Accessibility Guidelines 2.1 (June 5, 2018), https://
www.w3.org/TR/WCAG21/ [https://perma.cc/UB8AGG2F].
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propose WCAG 2.1 as the appropriate
standard. A number of countries that
have adopted WCAG 2.0 as their
standard are now making efforts to
move or have moved to WCAG 2.1.89 In
countries that are part of the European
Union, public sector websites and
mobile apps generally must meet a
technical standard that requires
conformance with the WCAG 2.1 Level
AA success criteria.90 And although
WCAG 2.0 is the standard adopted by
the Department of Transportation in its
rule implementing the Air Carrier
Access Act, which covers airlines’
websites and kiosks,91 that rule—like
the section 508 rule—was promulgated
before WCAG 2.1 was published.
The Department expects that the wide
usage of WCAG 2.0 lays a solid
foundation for public entities to become
familiar with and implement WCAG
2.1’s additional Level A and AA criteria.
According to the Department’s research,
approximately 48 States either use or
strive to use a WCAG 2.0 standard or
greater for at least some of their web
content. It appears that at least four of
these States—Louisiana, Maryland,
Nebraska, and Washington—already
either use WCAG 2.1 or strive to use
WCAG 2.1 for at least some of their web
content.
WCAG 2.1 represents the most up-todate recommendation and is generally
familiar to web professionals. It offers
important accessibility benefits for
people with disabilities that affect
manual dexterity, adds some criteria to
reduce barriers for those with low vision
and cognitive disabilities, and expands
coverage of mobile content. Given that
public entities will have two or three
years to comply, the Department views
WCAG 2.1 as the appropriate technical
standard to propose at this time.
The Department is aware that a
working draft for WCAG 2.2 was
published in May 2021.92 Several
subsequent drafts have also been
89 See e.g., Exploring WCAG 2.1 for Australian
government services, Australian Government Digital
Transformation Agency (Aug. 22, 2018), https://
www.dta.gov.au/blogs/exploring-wcag-21australian-government-services. A Perma archive
link was unavailable for this citation.
90 Web Accessibility, European Comm’n (updated
July 13, 2022), https://digital-strategy.ec.europa.eu/
en/policies/web-accessibility [https://perma.cc/
LSG9-XW7L]; Accessibility Requirements for ICT
Products and Services, European Telecomm.
Standards Institute, 45–51, 64–78 (Mar. 2021),
https://www.etsi.org/deliver/etsi_en/301500_
301599/301549/03.02.01_60/en_
301549v030201p.pdf [https://perma.cc/5TEZ9GC6].
91 See 14 CFR 382.43(c)–(e), 382.57.
92 W3C®, Web Content Accessibility Guidelines
2.2 (May 21, 2021), https://www.w3.org/TR/2021/
WD-WCAG22-20210521/ [https://perma.cc/M4G8Z2GY].
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published.93 All of the WCAG 2.0 and
WCAG 2.1 success criteria except for
one are included in WCAG 2.2.94 But
WCAG 2.2 also includes six additional
Level A and AA success criteria beyond
those included in WCAG 2.1.95 Like
WCAG 2.1, WCAG 2.2 offers benefits for
individuals with low vision, limited
manual dexterity, and cognitive
disabilities. For example, Success
Criterion 3.3.8, which is a new criterion
under WCAG 2.2, improves access for
people with cognitive disabilities by
limiting the use of cognitive function
tests, like solving puzzles, in
authentication processes.96 Because
WCAG 2.2 has not yet been finalized
and is subject to change, and web
professionals have had less time to
become familiar with the additional
success criteria that have been
incorporated into WCAG 2.2, the
Department does not believe it is
appropriate to adopt WCAG 2.2 as the
technical standard at this time.
The Department is seeking feedback
from the public about its proposal to use
WCAG 2.1 as the standard under this
rule and its assumptions underlying this
decision. Please provide as much detail
as possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 3: Are there technical
standards or performance standards
other than WCAG 2.1 that the
Department should consider? For
example, if WCAG 2.2 is finalized before
the Department issues a final rule,
should the Department consider
adopting that standard? If so, what is a
reasonable time frame for State and
local compliance with WCAG 2.2 and
why? Is there any other standard that
the Department should consider,
especially in light of the rapid pace at
which technology changes?
Proposed WCAG Conformance Level
For a web page to conform to WCAG
2.1, the web page must satisfy the
success criteria under one of three levels
of conformance: A, AA, or AAA. The
three levels of conformance indicate a
measure of accessibility and feasibility.
Level A, which is the minimum level of
accessibility, contains criteria that
provide basic web accessibility and are
e.g., W3C®, Web Content Accessibility
Guidelines 2.2 (May 17, 2023), https://www.w3.org/
TR/WCAG22/ [https://perma.cc/SXA7-RF32].
94 W3C®, What’s New in WCAG 2.2 Draft (May 17,
2023), https://www.w3.org/WAI/standardsguidelines/wcag/new-in-22/ [https://perma.cc/
Y67R-SFSE].
95 Id.
96 Id.
93 See,
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the least difficult to achieve for web
developers.97 Level AA, which is the
intermediate level of accessibility,
includes all of the Level A criteria and
contains enhanced criteria that provide
more comprehensive web accessibility,
and yet are still achievable for most web
developers.98 Level AAA, which is the
highest level of conformance, includes
all of the Level A and Level AA criteria
and contains additional criteria that can
provide a more enriched user
experience, but are the most difficult to
achieve for web developers.99 The
W3C® does not recommend that Level
AAA conformance be required as a
general policy for entire websites
because it is not possible to satisfy all
Level AAA criteria for some content.100
Based on review of previous public
feedback and independent research, the
Department believes that WCAG 2.1
Level AA is an appropriate conformance
level because it includes criteria that
provide web accessibility to individuals
with disabilities—including those with
visual, auditory, physical, speech,
cognitive, and neurological
disabilities—and yet is feasible for
public entities’ web developers to
implement. In addition, Level AA
conformance is widely used, making it
more likely that web developers are
already familiar with its requirements.
Though many of the entities that
conform to Level AA do so under
WCAG 2.0, not 2.1, this still suggests a
widespread familiarity with most of the
Level AA success criteria, given that 38
of the 50 Level A and AA success
criteria in WCAG 2.1 are also included
in WCAG 2.0. The Department believes
that Level A conformance alone is not
appropriate because it does not include
criteria for providing web accessibility
that the Department understands are
critical, such as a minimum level of
color contrast so that items like text
boxes or icons are easier to see, which
is important for people with vision
disabilities. Also, while Level AAA
conformance provides a richer user
experience, it is the most difficult to
achieve for many entities. Therefore, the
Department is proposing Level AA
conformance for public feedback as to
whether it strikes the right balance
between accessibility for individuals
with disabilities and achievability for
97 W3C®, Web Content Accessibility Guidelines
(WCAG) 2 Level A Conformance (July 13, 2020),
https://www.w3.org/WAI/WCAG2A-Conformance
[https://perma.cc/KT74-JNHG].
98 Id.
99 Id.
100 See W3C®, Understanding Conformance,
Understanding Requirement 1, https://www.w3.org/
WAI/WCAG21/Understanding/conformance
[https://perma.cc/9ZG9-G5N8].
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public entities. Adopting a WCAG 2.1
Level AA conformance level would
make the ADA requirements consistent
with a standard that has been widely
accepted internationally. Many nations
have selected Level AA conformance as
their standard for web accessibility.101
The web content of Federal agencies
that are governed by section 508 also
need to comply with Level AA.102 In its
proposed regulatory text in
§ 35.200(b)(1) and (2), the Department
provides that public entities must
‘‘comply with Level A and Level AA
success criteria and conformance
requirements specified in WCAG 2.1.’’
WCAG 2.1 provides that for ‘‘Level AA
conformance, the web page [must]
satisf[y] all the Level A and Level AA
Success Criteria . . . .’’ 103 However,
individual success criteria in WCAG 2.1
are labeled only as Level A or Level AA.
Therefore, a person reviewing
individual requirements in WCAG 2.1
may not understand that both Level A
and Level AA success criteria must be
met in order to attain Level AA.
Accordingly, the Department has made
explicit in its proposed regulation that
both Level A and Level AA success
criteria and conformance requirements
must be met in order to comply with the
proposed web accessibility
requirements.
Conformance Level for Small Public
Entities
The Department considered proposing
another population threshold of very
small entities that would be subject to
a lower conformance level or WCAG
version, to reduce the burden of
compliance on those entities. However,
the Department decided against this
proposal due to a variety of factors.
First, this would make for inconsistent
levels of WCAG conformance across
public entities, and a universal standard
for consistency in implementation
would promote predictability. A
universal level of conformance would
reduce confusion about which standard
applies, and it would create a basic level
of conformance for all public entities to
follow. It would also allow for people
with disabilities to know what they can
101 See W3C®, Web Accessibility Laws & Policies
(Mar. 21, 2018), https://www.w3.org/WAI/policies/
[https://perma.cc/5EBY-3WX4].
102 See Information and Communication
Technology (‘‘ICT’’) Standards and Guidelines, 82
FR 5790, 5791 (Jan. 18, 2017).
103 See W3C®, Conformance Requirements, Web
Content Accessibility Guidelines (WCAG) 2.1 (June
5, 2018), https://www.w3.org/TR/WCAG21/#cc1
[https://perma.cc/ZL6N-VQX4]. WCAG 2.1 also
states that a Level AA conforming alternate version
may be provided. The Department has adopted a
slightly different approach to conforming alternate
versions, which is discussed below.
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expect when navigating a public entity’s
web content; for example, it will be
helpful for people with disabilities to
know that they can expect to be able to
navigate a public entity’s web content
independently using their assistive
technology. Finally, for the reasons
discussed above, the Department
believes that WCAG 2.1 Level AA
contains criteria that are critical to
accessing services, programs, and
activities of public entities, which may
not be included under a lower standard.
However, the Department recognizes
that small public entities—those with a
total population of less than 50,000
based on Census data—might initially
face more technical and resource
challenges in complying than larger
public entities. Therefore, as discussed
below, the Department has decided to
propose different compliance dates
according to a public entity’s size to
reduce burdens on small public entities.
Possible Alternative Standards for
Compliance
The Department considered proposing
to adopt the section 508 standards but
decided not to take this approach. The
section 508 standards are harmonized
with WCAG 2.0, and for the reasons
discussed above, the Department
believes WCAG 2.1—which had not
been finalized at the time the section
508 standards were promulgated—is the
more appropriate recommendation for
this proposed rule. Moreover, by
adopting WCAG on its own rather than
adopting it through the section 508
standards, the Department can then
tailor the rule to public entities as it
does in this proposed rule.
The Department also considered
adopting performance standards instead
of specific technical standards for
accessibility of web content.
Performance standards establish general
expectations or goals for web
accessibility and allow for compliance
via a variety of unspecified methods.
Performance standards could provide
greater flexibility in ensuring
accessibility as web technologies
change. However, based on what the
Department has heard previously from
the public and its own knowledge of
this area, the Department understands
that performance standards might be too
vague and subjective and could prove
insufficient in providing consistent and
testable requirements for web
accessibility. Additionally, the
Department expects that performance
standards would likely not result in
predictability for either public entities
or people with disabilities in the way
that a more specific technical standard
would. Further, similar to a
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performance standard, WCAG has been
designed to allow for flexibility and
innovation in the evolving web
environment. The Department
recognizes the importance of adopting a
standard for web accessibility that
provides not only specific and testable
requirements, but also sufficient
flexibility to develop accessibility
solutions for new web technologies. The
Department believes that WCAG
achieves this balance because it
provides flexibility similar to a
performance standard, but it also
provides more clarity, consistency,
predictability, and objectivity. Using
WCAG also enables public entities to
know precisely what is expected of
them under title II, which may be of
particular benefit to jurisdictions with
less technological experience. This will
assist public entities in targeting
accessibility errors, which may reduce
costs they would incur without clear
expectations.
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 4: What compliance costs
and challenges might small public
entities face in conforming with this
rule? How accessible are small public
entities’ web content and mobile apps
currently? Do small public entities have
internal staff to modify their web
content and mobile apps, or do they use
outside consulting staff to modify and
maintain their web content and mobile
apps? If small public entities have
recently (for example, in the past three
years) modified their web content or
mobile apps to make them accessible,
what costs were associated with those
changes?
Question 5: Should the Department
adopt a different WCAG version or
conformance level for small entities or
a subset of small entities?
Public Entities’ Use of Social Media
Platforms
Public entities are increasingly using
social media platforms to provide
information and communicate with the
public about their services, programs,
and activities in lieu of or in addition
to engaging the public on their own
websites. The Department is using the
term ‘‘social media platforms’’ to refer to
websites or mobile apps of third parties
whose primary purpose is to enable
users to create and share content in
order to participate in social networking
(i.e., the creation and maintenance of
personal and business relationships
online through websites and mobile
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apps like Facebook, Instagram, Twitter,
and LinkedIn).
The Department is proposing to
require that web content that public
entities make available to members of
the public or use to offer services,
programs, and activities to members of
the public be accessible within the
meaning of proposed § 35.200. This
requirement would apply regardless of
whether that web content is located on
the public entity’s own website or
elsewhere on the web. It therefore
covers web content that a public entity
makes available via a social media
platform. Even where a social media
platform is not fully accessible, a public
entity can generally take actions to
ensure that the web content that it posts
is accessible and in compliance with
WCAG 2.1.104 The Department
understands that social media platforms
often make available certain
accessibility features like the ability to
add captions or alt text. It is the public
entity’s responsibility to use these
features when it makes web content
available on social media sites. For
example, if a public entity posts an
image to a social media site that allows
users to post alt text, the public entity
needs to ensure that appropriate alt text
accompanies that image so that screen
reader users can access the information.
At this time, the Department is not
proposing any regulatory text specific to
the web content that public entities
make available to members of the public
via social media platforms because web
content posted on social media
platforms will be treated the same as
any other content public entities post on
the web. However, the Department is
considering creating an exception from
coverage under the rule for social media
posts if they were posted before the
effective date of the rule. This exception
would recognize that making
preexisting social media content
accessible may be impossible at this
time or result in a significant burden.
Many public entities have posted social
media content for several years, often
numbering thousands of posts, which
may not all be accessible. The benefits
of making all preexisting social media
posts accessible might also be limited as
these posts are intended to provide
current updates on platforms that are
frequently refreshed with new
information. The Department is
considering this exception in
recognition of the fact that many
entities’ resources may be better spent
104 See Federal Social Media Accessibility Toolkit
Hackpad, Digital.gov (updated June 21, 2022),
https://digital.gov/resources/federal-social-mediaaccessibility-toolkit-hackpad/ [https://perma.cc/
DJ8X-UCHA].
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ensuring that current web content is
accessible, rather than reviewing all
preexisting social media content for
compliance or possibly deleting their
previous posts. The Department is
looking for input on whether this
approach would make sense and
whether any limitations to this
approach are necessary, such as
providing that the exception does not
apply when preexisting social media
content is currently used to offer a
service, program, or activity, or possibly
limiting this exception when the public
requests certain social media content to
be made accessible.
The Department is also weighing
whether public entities’ preexisting
videos posted to social media platforms
such as YouTube should be excepted
from coverage due to these same
concerns or otherwise be treated
differently.
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 6: How do public entities
use social media platforms and how do
members of the public use content made
available by public entities on social
media platforms? What kinds of barriers
do people with disabilities encounter
when attempting to access public
entities’ services via social media
platforms?
Mobile Applications
The Department is proposing to adopt
the same technical standard for mobile
app accessibility as it is for web
content—WCAG 2.1 Level AA. As
discussed earlier, WCAG 2.1 was
published in June 2018 and was
developed, in part, to address mobile
accessibility.105
The Department considered applying
WCAG 2.0 Level AA to mobile apps,
which is a similar approach to the
requirements in the final rule
promulgated by the United States
Access Board in its update to the section
508 standards.106 WCAG 2.1 was not
finalized when the Access Board
adopted the section 508 standards.
When WCAG 2.0 was originally drafted
in 2008, mobile apps were not as widely
used or developed. Further, the
technology has grown considerably
since that time. Accordingly, WCAG 2.1
provides 12 additional Level A and AA
success criteria not included in WCAG
105 W3C®, What’s New in WCAG 2.1 (Aug. 13,
2020), https://www.w3.org/WAI/standardsguidelines/wcag/new-in-21/ [https://perma.cc/
W8HK-Z5QK].
106 See 82 FR 5790, 5815 (Jan. 18, 2017).
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2.0 to ensure, among other things, that
mobile apps are more accessible to
individuals with disabilities using
mobile devices.107 For example, WCAG
2.1 includes Success Criterion 1.4.12,
which ensures that text spacing like
letter spacing, line spacing, and word
spacing meets certain requirements to
ensure accessibility; Success Criterion
2.5.4, which enables the user to disable
motion actuation (e.g., the ability to
activate a device’s function by shaking
it) to prevent such things as accidental
deletion of text; and Success Criterion
1.3.5, which allows a user to input
information such as a name or address
automatically.108
The Access Board’s section 508
standards include additional
requirements applicable to mobile apps
that are not in WCAG 2.1, and the
Department is requesting feedback on
whether to adopt those requirements as
well. For example, the section 508
standards apply the following
requirements not found in WCAG 2.1 to
mobile apps: interoperability
requirements to ensure that a mobile
app does not disrupt a device’s assistive
technology for persons with disabilities
(e.g., screen readers for persons who are
blind or have low vision); requirements
for mobile apps to follow preferences on
a user’s phone such as settings for color,
contrast, and font size; and
requirements for caption controls and
audio description controls that enable
users to adjust caption and audio
description functions.109
Adopting WCAG 2.1 Level AA for
mobile apps will help ensure this rule’s
accessibility standards for mobile apps
are consistent with this rule’s
accessibility standards for web content.
We seek comments on this approach
below. Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 7: How do public entities
use mobile apps to make information
and services available to the public?
What kinds of barriers do people with
disabilities encounter when attempting
to access public entities’ services,
programs, and activities via mobile
apps? Are there any accessibility
107 W3C®, What’s New in WCAG 2.1 (Aug. 13,
2020), https://www.w3.org/WAI/standardsguidelines/wcag/new-in-21/ [https://perma.cc/
W8HK-Z5QK].
108 W3C®, Web Content Accessibility Guidelines
2.1 (June 5, 2018), https://www.w3.org/TR/
WCAG21/ [https://perma.cc/UB8A-GG2F].
109 36 CFR 1194, app. C (§§ 502.1, 502.2.2, 503.2,
503.4.1, 503.4.2).
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features unique to mobile apps that the
Department should be aware of?
Question 8: Is WCAG 2.1 Level AA the
appropriate accessibility standard for
mobile apps? Should the Department
instead adopt another accessibility
standard or alternative for mobile apps,
such as the requirements from section
508 discussed above?
Requirements by Entity Size
Section 35.200(b) sets forth the
proposed specific standard with which
the web content and mobile apps that
public entities make available to
members of the public or use to offer
services, programs, and activities to
members of the public must comply,
and also proposes time frames for
compliance. The proposed requirements
of § 35.200(b) are generally delineated
by the size of the population of the
public entity, as calculated by the U.S.
Census Bureau.
Section 35.200(b)(1): Larger Public
Entities
Section 35.200(b)(1) sets forth the
proposed web and mobile app
accessibility requirements for public
entities with a total population of
50,000 or more. The requirements of
proposed § 35.200(b)(1) are meant to
apply to larger public entities—
specifically, to those public entities that
do not qualify as ‘‘small governmental
jurisdictions’’ as defined in the
Regulatory Flexibility Act.110 As
applied to this proposed rule, the
Department defines the population of a
public entity by the total general
population of the jurisdiction as
calculated by the U.S. Census Bureau. If
a public entity does not have a specific
population calculated by the U.S.
Census Bureau, but belongs to another
jurisdiction that does, the population of
the entity is determined by the
population of the jurisdiction to which
the entity belongs. For example, a
county police department in a county
with a population of 5,000 is a small
public entity, while a city police
department in a city with a population
of 200,000 is not a small public entity.
For purposes of this rule, a population
of a public entity is not defined by the
population that is eligible for or that
takes advantage of the specific services
of the public entity. For example, a
county school district in a county with
a population of 60,000 adults and
children is not a small public entity
regardless of the number of students
110 5 U.S.C. 601(5) (‘‘[T]he term ‘small
governmental jurisdiction’ means governments of
cities, counties, towns, townships, villages, school
districts, or special districts, with a population of
less than fifty thousand . . . .’’).
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enrolled or eligible for services.
Similarly, individual county schools are
also not considered small public entities
if they are components of a county
government that has a population of
over 50,000 (i.e., when the individual
county schools are not separate legal
entities). Though a specific county
school may create and maintain web
content or a mobile app, the county, as
the legal entity governed by title II, is
also responsible for what happens in the
individual school. The Department
expects that the specific school benefits
from the resources made available or
allocated by the county.
The Department is also proposing this
approach because, practically speaking,
it is likely to make it easier for public
entities to determine their population
size. Under the Department’s proposal,
population size is used to determine a
public entity’s compliance time frame.
Some public entities, like libraries or
public universities and community
colleges, do not have population data
associated with them in the U.S.
Census. By using the population data
associated with the entity the library or
university belongs to, like a county or
State, the library or university can
assess its compliance time frame. This
also allows the county or State as a
whole to assess compliance for its
services, programs, and activities
holistically.
Proposed § 35.200(b)(1) requires that a
public entity, other than a special
district government, with a total
population of 50,000 or more shall
ensure that the web content and mobile
apps it makes available to members of
the public or uses to offer services,
programs, or activities to members of
the public comply with Level A and
Level AA success criteria and
conformance requirements specified in
WCAG 2.1. Public entities subject to
proposed § 35.200(b)(1) have two years
after the publication of a final rule to
make their web content and mobile apps
accessible, unless they can demonstrate
that compliance with proposed
§ 35.200(b)(1) would result in a
fundamental alteration in the nature of
a service, program, or activity or in
undue financial and administrative
burdens. The limitations on a public
entity’s obligation to comply with the
proposed requirements are discussed in
more detail below.
The Department has received varied
feedback from the public in the past
regarding an appropriate time frame for
requiring compliance with technical
web accessibility standards. Individuals
with disabilities or disability advocacy
organizations tended to prefer a shorter
time frame, often arguing that web
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accessibility has long been required by
the ADA and that extending the
deadline for compliance rewards
entities that have not made efforts to
make their websites accessible. Some
covered entities have asked for more
time to comply. State and local
government entities have been
particularly concerned about shorter
compliance deadlines, often citing
budgets and staffing as major
limitations. In the past, many public
entities stated that they lacked qualified
personnel to implement the web
accessibility requirements of WCAG 2.0,
which was relatively new at the time.
They told the Department that in
addition to needing time to implement
the changes to their websites, they also
needed time to train staff or contract
with professionals who are proficient in
developing accessible websites.
Considering all these factors, as well as
the facts that over a decade has passed
since the Department started receiving
such feedback and there is more
available technology to make web
content and mobile apps accessible, the
Department is proposing a two-year
implementation time frame for public
entities with a total population of
50,000 or more. Regulated entities and
the community of web developers have
had over a decade to familiarize
themselves with WCAG 2.0, which was
published in 2008 and serves as the
foundation for WCAG 2.1, and five years
to familiarize themselves with the
additional 12 Level A and AA success
criteria of WCAG 2.1. Though the
Department is now proposing requiring
public entities to comply with WCAG
2.1 instead of WCAG 2.0, the
Department believes the time allowed to
come into compliance is appropriate. As
discussed above, WCAG 2.1 Level AA
only adds 12 Level A and AA success
criteria that were not included in WCAG
2.0. The Department believes these
additional success criteria will not
significantly increase the time or
resources that it will take for a public
entity to come into compliance with the
proposed rule beyond what would have
already been required to comply with
WCAG 2.0, though the Department
seeks the public’s input on this belief.
The Department therefore believes this
proposal balances the resource
challenges reported by public entities
with the interests of individuals with
disabilities in accessing the multitude of
services, programs, and activities that
public entities now offer via the web
and mobile apps.
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Section 35.200(b)(2): Small Public
Entities and Special District
Governments
The Department has also previously
received public input on whether it
should consider different compliance
requirements or a different compliance
date for small entities in order to take
into account the impact on small
entities as required by the Regulatory
Flexibility Act of 1980 and Executive
Order 13272.111 Many disability
organizations and individuals have
opposed having a different timetable or
different accessibility requirements for
smaller entities, stating that many small
entities have smaller and less complex
websites with fewer web pages, which
would make compliance easier. The
Department has also heard from other
members of the public opposing
different timetables or different
accessibility requirements for smaller
entities. These commenters note that
small public entities are protected from
excessive burdens deriving from
rigorous compliance dates or stringent
accessibility standards by the ADA’s
‘‘undue burden’’ compliance
limitations. It is also the Department’s
understanding that many web
accessibility professionals may operate
online and could be available to assist
entities with compliance regardless of
their location.
Many of those expressing concerns
about compliance dates, especially web
developers as well as State and local
government entities, have stated that
compliance in incremental levels would
help public entities to allocate
resources—both financial and
personnel—to bring their websites into
compliance. Such entities have noted
that many small State and local
government entities do not have a
dedicated web developer or staff. The
Department has heard that when these
small entities develop or maintain their
own websites, they often do so with
staff or volunteers who have only a
cursory knowledge of web design and
use manufactured web templates or
software, which may create inaccessible
web pages. Some small public entities
have expressed concern that even when
they do use outside help, there is likely
to be a shortage of professionals who are
proficient in web accessibility and can
assist all public entities in bringing their
websites into compliance. Some public
entities have also expressed concern
that smaller entities would need to take
111 See Nondiscrimination on the Basis of
Disability; Accessibility of Web Information and
Services of State and Local Government Entities
and Public Accommodations, 75 FR 43460, 43467
(July 26, 2010).
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down their websites because they would
not be able to comply with the
accessibility requirements, although the
Department notes that public entities
would not be required to undertake
changes that would impose an undue
financial and administrative burden.
In light of these concerns, proposed
§ 35.200(b)(2) sets forth the
Department’s proposed web and mobile
app accessibility requirements for small
public entities and special district
governments. Specifically, proposed
§ 35.200(b)(2) covers those public
entities with a total population of less
than 50,000 and special district
governments. Section 35.200(b)(2)
would require these public entities to
ensure that the web content and mobile
apps they make available to the public
or use to offer services, programs, and
activities to members of the public,
comply with Level A and Level AA
success criteria and conformance
requirements specified in WCAG 2.1,
unless they can demonstrate that
compliance would result in a
fundamental alteration in the nature of
a service, program, or activity or in
undue financial and administrative
burdens. This is the same substantive
standard that applies to larger entities.
However, the Department is proposing
to give these small entities additional
time to bring their web content and
mobile apps into compliance with
proposed § 35.200(b)(2). Specifically,
small public entities and special district
governments covered by proposed
§ 35.200(b)(2) will have three years after
the publication of a final rule to make
their web content and mobile apps
compliant with the Department’s
proposed requirements. The Department
believes this longer phase-in period
would be prudent to allow small public
entities and special district governments
to properly allocate their personnel and
financial resources in order to bring
their web content and mobile apps into
compliance with the Department’s
proposed requirements. However, the
Department welcomes feedback on
whether there are alternatives to
delaying compliance requirements by a
year that could better balance the needs
of small public entities and the people
with disabilities who live in those
communities.
Proposed § 35.200(b)(2) also covers
public entities that are special district
governments. As previously noted,
special district governments are
governments that are authorized to
provide a single function or a limited
number of functions, such as a zoning
or transit authority. As discussed above,
proposed § 35.200 proposes different
compliance dates according to the size
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of the population of the public entity, as
calculated by the U.S. Census Bureau.
The Department believes applying to
special district governments the same
compliance date as proposed for small
public entities (i.e., compliance in three
years) may be appropriate for two
reasons. First, because the U.S. Census
Bureau does not provide population
estimates for special district
governments, these limited-purpose
public entities would find it difficult to
obtain population estimates that are
objective and reliable in order to
determine their duties under the
proposed rule. Though some special
district governments may estimate their
total populations, these entities may use
varying methodology to calculate
population estimations, which may lead
to confusion and inconsistency in the
application of the proposed accessibility
requirements. Second, although special
district governments in some instances
may serve a large population, unlike
counties, cities, or townships with large
populations that provide a wide range of
online government services and
programs and have large and varying
budgets, special district governments
are authorized to provide a single
function or a limited number of
functions (e.g., to provide mosquito
abatement or water and sewer services)
and have more limited or specialized
budgets. Therefore, proposed
§ 35.200(b)(2) extends the deadline for
compliance for special district
governments to three years, as it does
for small public entities.
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 9: How will the proposed
compliance date affect small public
entities? Are there technical or budget
constraints that small public entities
would face in complying with this rule,
such that a longer phase-in period is
appropriate?
Question 10: How will the proposed
compliance date affect people with
disabilities, particularly in rural areas?
Question 11: How should the
Department define ‘‘small public
entity’’? Should categories of small
public entities other than those already
delineated in this proposed rule be
subject to a different WCAG 2.1
conformance level or compliance date?
Question 12: Should the Department
consider factors other than population
size, such as annual budget, when
establishing different or tiered
compliance requirements? If so, what
should those factors be, why are they
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51965
more appropriate than population size,
and how should they be used to
determine regulatory requirements?
Limitations
The proposed rule sets forth the
limitations on public entities’
obligations to comply with the specific
requirements of this proposed rule. For
example, where it would impose an
undue financial and administrative
burden to comply with WCAG 2.1 (or
part of WCAG 2.1), public entities
would not be required to remove their
web content and mobile apps, forfeit
their web presence, or otherwise
undertake changes that would be
unduly burdensome. Further, as
proposed in § 35.200(b), the web and
mobile app accessibility requirements
would not require any public entity to
take actions that would result in a
fundamental alteration in the nature of
a service, program, or activity.
In circumstances where officials of a
public entity believe that the proposed
action would fundamentally alter the
service, program, or activity or would
result in undue financial and
administrative burdens, a public entity
has the burden of proving that
compliance would result in such
alteration or burdens. The decision that
compliance would result in such
alteration or burdens must be made by
the head of the public entity or their
designee after considering all resources
available for use in the funding and
operation of the service, program, or
activity and must be accompanied by a
written statement of the reasons for
reaching that conclusion. If an action
required to comply with proposed
§ 35.200(b) would result in such an
alteration or such burdens, a public
entity must take any other action that
would not result in such an alteration or
such burdens but would nevertheless
ensure that, to the maximum extent
possible, individuals with disabilities
receive the benefits or services provided
by the public entity. For more
information, see the discussion below
regarding limitations on obligations
under proposed § 35.204.
Captions for Live-Audio Content
WCAG 2.1 Level AA Success
Criterion 1.2.4 requires synchronized
captions for live-audio content. The
intent of this success criterion is to
‘‘enable people who are deaf or hard of
hearing to watch real-time
presentations. Captions provide the part
of the content available via the audio
track. Captions not only include
dialogue, but also identify who is
speaking and notate sound effects and
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other significant audio.’’ 112 Modern live
captioning often can be created with the
assistance of technology, such as by
assigning captioners through Zoom or
other conferencing software, which
integrates captioning with live meetings.
The Department proposes to apply the
same compliance date to all of the
WCAG 2.1 Level AA success criteria,
including live-audio captioning
requirements. As noted above, this
would allow for three years after
publication of the final rule for small
public entities and special district
governments to comply, and two years
for large public entities. The Department
believes this approach is appropriate for
several reasons. First, the Department
understands that technology utilizing
live-audio captioning has developed in
recent years and continues to develop.
In addition, the COVID–19 pandemic
moved a significant number of formerly
in-person meetings, activities, and other
gatherings to online settings, many of
which incorporated live-audio
captioning. As a result of these
developments, live-audio captioning has
become even more critical for
individuals with certain types of
disabilities to participate fully in civic
life. And while the Department believes
that the two- and three-year periods
described above afford a sufficient
amount of time for public entities to
allocate resources towards live-audio
captioning, public entities have the
option to demonstrate that compliance
with any success criterion would result
in a fundamental alteration in the nature
of a service, program, or activity or in
undue financial and administrative
burdens.
Though at least one country that has
adopted WCAG 2.0 Level AA as its
standard for web accessibility has
exempted entities from having to
comply with the live-audio captioning
requirements,113 the Department does
not believe this approach is appropriate
or necessary under the current
circumstances, given the current state of
live-audio captioning technology and
the critical need for live-audio
captioning for people with certain types
of disabilities to participate more fully
in civic life. Further, the Department
believes that the state of live-audio
captioning technology has advanced
112 W3C®, Captions (Live), Understanding SC
1.2.4, Understanding WCAG 2.0: A Guide to
Understanding and Implementing WCAG 2.0,
https://www.w3.org/TR/UNDERSTANDINGWCAG20/media-equiv-real-time-captions.html
[https://perma.cc/NV74-U77R] (emphasis in
original).
113 See W3C®, Canada (last updated Feb. 9, 2017),
https://www.w3.org/WAI/policies/canada/ [https://
perma.cc/W2DS-FAE9].
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since 2016 when Canada made the
decision to exempt entities from the
live-audio captioning requirements.114
However, the Department is interested
in learning more about compliance
capabilities. Accordingly, the
Department poses several questions for
commenters about the development of
live-audio captioning technology and
the Department’s proposed requirement.
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 13: Should the Department
consider a different compliance date for
the captioning of live-audio content in
synchronized media or exclude some
public entities from the requirement? If
so, when should compliance with this
success criterion be required and why?
Should there be a different compliance
date for different types or sizes of public
entities?
Question 14: What types of live-audio
content do public entities and small
public entities post? What has been the
cost for providing live-audio captioning?
§ 35.201 Exceptions
This rule would require public
entities to make their web content and
mobile apps accessible. However, the
Department believes it may be
appropriate in some situations for
certain content to be excepted from
compliance with the technical
requirements of this proposed rule. The
Department has heard a range of views
on this issue, including that a title II
regulation should not include any
exceptions because the compliance
limitations for undue financial and
administrative burdens would protect
public entities from any unrealistic
requirements. On the other hand, the
Department has also heard that
exceptions are necessary to avoid
substantial burdens on public entities.
The Department also expects that such
exceptions may help public entities
avoid uncertainty about whether they
need to ensure accessibility in situations
where it might be extremely difficult.
After consideration of the public’s views
and after its independent assessment,
the Department is proposing the
following exceptions and poses
questions for public feedback. The
Department is interested in feedback
about whether these proposed
exceptions would relieve the burden on
public entities, and also how these
proposed exceptions would impact
people with disabilities.
114 See
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The Department is proposing
exceptions from coverage—subject to
certain limitations—for the following
seven categories of web content: (1)
archived web content; (2) preexisting
conventional electronic documents; (3)
web content posted by third parties on
a public entity’s website; (4) third-party
web content linked from a public
entity’s website; (5) course content on a
public entity’s password-protected or
otherwise secured website for admitted
students enrolled in a specific course
offered by a public postsecondary
institution; (6) class or course content
on a public entity’s password-protected
or otherwise secured website for
students enrolled, or parents of students
enrolled, in a specific class or course at
a public elementary or secondary
school; and (7) conventional electronic
documents that are about a specific
individual, their property, or their
account and that are password-protected
or otherwise secured. Additionally,
there are certain limitations to these
exceptions—situations in which the
otherwise excepted content still must be
made accessible. This proposed rule’s
exceptions as well as the limitations on
those exceptions are explained below.
Archived Web Content
Public entities’ websites can often
include a significant amount of archived
web content, which may contain
information that is outdated,
superfluous, or replicated elsewhere.
The Department’s impression is that
generally, this historic information is of
interest to only a small segment of the
general population. Still, the
information may be of interest to some
members of the public, including some
individuals with disabilities, who are
conducting research or are otherwise
interested in these historic documents.
The Department is aware and
concerned, however, that based on
current technologies, public entities
would need to expend considerable
resources to retroactively make
accessible the large quantity of historic
or otherwise outdated information
available on public entities’ websites.
Thus, proposed § 35.201(a) provides an
exception from the web access
requirements of proposed § 35.200 for
web content that meets the definition of
‘‘archived web content’’ in proposed
§ 35.104. As mentioned previously,
proposed § 35.104 defines ‘‘archived
web content’’ as ‘‘web content that (1)
is maintained exclusively for reference,
research, or recordkeeping; (2) is not
altered or updated after the date of
archiving; and (3) is organized and
stored in a dedicated area or areas
clearly identified as being archived.’’
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The archived web content exception
allows public entities to keep and
maintain historic web content, while
utilizing their resources to make
accessible the many up-to-date materials
that people need to currently access
public services or to participate in civic
life.
The Department notes that under this
exception, public entities may not
circumvent their accessibility
obligations by merely labeling their web
content as ‘‘archived’’ or by refusing to
make accessible any content that is old.
The exception focuses narrowly on
content that satisfies all three of the
criteria necessary to qualify as
‘‘archived web content,’’ namely content
that is maintained exclusively for
reference, research, or recordkeeping; is
not altered or updated after the date of
archiving; and is organized and stored
in a dedicated area or areas clearly
identified as being archived. If any one
of those criteria is not met, the content
does not qualify as ‘‘archived web
content.’’ For example, if an entity
maintains content for any purpose other
than reference, research, or
recordkeeping—such as for purposes of
offering a current service, program, or
activity—then that content would not
fall within the exception, even if an
entity labeled it as ‘‘archived.’’
Similarly, an entity would not be able
to circumvent its accessibility
obligations by rapidly moving newly
posted content that is maintained for a
purpose other than reference, research,
or recordkeeping, or that the entity
continues to update, from a nonarchived section of its website to an
archived section.
Though the Department proposes that
archived web content be excepted from
coverage under this rule, if an
individual with a disability requests
that certain archived web content be
made accessible, public entities
generally have an existing obligation to
make these materials accessible in a
timely manner and free of charge.115
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 15: How do public entities
currently manage content that is
maintained for reference, research, or
recordkeeping?
Question 16: What would the impact
of this exception be on people with
disabilities?
115 See, e.g., 28 CFR 35.130(b)(7)(i), (f),
35.160(b)(2).
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Question 17: Are there alternatives to
this exception that the Department
should consider, or additional
limitations that should be placed on this
exception? How would foreseeable
advances in technology affect the need
for this exception?
Preexisting Conventional Electronic
Documents
As discussed in the section-by-section
analysis for proposed § 35.104 above,
the Department is proposing to add a
definition for ‘‘conventional electronic
documents.’’ Specifically, the proposed
definition provides that the term
‘‘conventional electronic documents’’
‘‘means web content or content in
mobile apps that is in the following
electronic file formats: portable
document formats (‘PDF’), word
processor file formats, presentation file
formats, spreadsheet file formats, and
database file formats.’’ This list of
conventional electronic documents is
intended to be an exhaustive list of file
formats, rather than an open-ended list.
Proposed § 35.201(b) provides that
‘‘conventional electronic documents
created by or for a public entity that are
available on a public entity’s website or
mobile app before the date the public
entity is required to comply with this
rule’’ do not have to comply with the
accessibility requirements of proposed
§ 35.200, ‘‘unless such documents are
currently used by members of the public
to apply for, gain access to, or
participate in a public entity’s services,
programs, or activities.’’
The Department’s research indicates
that many websites of public entities
contain a significant number of
conventional electronic documents,
such as comprehensive reports on water
quality containing text, images, charts,
graphs, and maps. The Department
expects that many of these conventional
electronic documents are in PDF format,
but many conventional electronic
documents are formatted as word
processor files (e.g., Microsoft Word
files), presentation files (e.g., Apple
Keynote or Microsoft PowerPoint files),
spreadsheet files (e.g., Microsoft Excel
files), and database files (e.g., FileMaker
Pro or Microsoft Access files).
Because of the substantial number of
conventional electronic documents that
public entities make available on their
websites and mobile apps, and because
of the difficulty of remediating some
complex types of information and data
to make them accessible after-the-fact,
the Department believes public entities
should generally focus their personnel
and financial resources on developing
new conventional electronic documents
that are accessible and remediating
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existing conventional electronic
documents that are currently used by
members of the public to access the
public entity’s services, programs, or
activities. For example, if before the
date a public entity is required to
comply with this rule, the entity’s
website contains a series of out-of-date
PDF reports on local COVID–19
statistics, those reports generally need
not comply with WCAG 2.1. Similarly,
if a public entity maintains decades’
worth of water quality reports in
conventional electronic documents on
the same web page as its current water
quality report, the old reports that were
posted before the date the entity was
required to comply with this rule
generally do not need to comply with
WCAG 2.1. As the public entity posts
new reports going forward, however,
those reports must comply with WCAG
2.1. This approach is expected to reduce
the burdens on public entities.
This exception is subject to a
limitation: the exception does not apply
to any preexisting documents that are
currently used by members of the public
to apply for, access, or participate in the
public entity’s services, programs, or
activities. In referencing ‘‘documents
that are currently used,’’ the Department
intends to cover documents that are
used by members of the public at any
given point in the future, not just at the
moment in time when this rule is
published. This limitation includes
documents that provide instructions or
guidance. For example, a public entity
must not only make an application for
a business license accessible, but it must
also make accessible other materials that
may be needed to obtain the license,
complete the application, understand
the process, or otherwise take part in the
program, such as business license
application instructions, manuals,
sample knowledge tests, and guides,
such as ‘‘Questions and Answers’’
documents.
The Department notes that a public
entity may not rely on this ‘‘preexisting
conventional electronic documents’’
exception to circumvent its accessibility
obligations by, for example, converting
all of its web content to conventional
electronic document formats and
posting those documents before the date
the entity must comply with this rule.
As noted above, any documents that are
currently used by members of the public
to access the public entity’s services,
programs, or activities would need to be
accessible as defined under this rule,
even if those documents were posted
before the date the entity was required
to comply with the rule. And if an entity
updates a conventional electronic
document after the date the entity must
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comply with this rule, that document
would no longer qualify as
‘‘preexisting,’’ and would thus need to
be made accessible as defined under
this rule.
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 18: Where do public entities
make conventional electronic
documents available to the public? Do
public entities post conventional
electronic documents anywhere else on
the web besides their own websites?
Question 19: Would this ‘‘preexisting
conventional electronic documents’’
exception reach content that is not
already excepted under the proposed
archived web content exception? If so,
what kinds of additional content would
it reach?
Question 20: What would the impact
of this exception be on people with
disabilities? Are there alternatives to
this exception that the Department
should consider, or additional
limitations that should be placed on this
exception? How would foreseeable
advances in technology affect the need
for this exception?
Third-Party Web Content
Public entities’ websites can include
or link to many different types of thirdparty content (i.e., content that is
created by someone other than the
public entity), some of which is posted
by or on behalf of public entities and
some of which is not. For example,
many public entities’ websites contain
third-party web content like maps,
calendars, weather forecasts, news
feeds, scheduling tools, reservations
systems, or payment systems. Thirdparty web content may also be posted by
members of the public on a public
entity’s online message board or other
sections of the public entity’s website
that allow public comment. In addition
to third-party content that is posted on
the public entity’s own website, public
entities frequently provide links to
third-party content (i.e., links on the
public entity’s website to content that
has been posted on another website that
does not belong to the public entity),
including links to outside resources and
information.
The Department has heard a variety of
views regarding whether or not public
entities should be responsible for
ensuring that third-party content on
their websites and linked third-party
content are accessible. Some maintain
that public entities cannot be held
accountable for third-party content on
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their websites, and without such an
exception, public entities may have to
remove the content altogether. Others
have suggested that public entities
should not be responsible for third-party
content and linked content unless that
content is necessary for individuals to
access public entities’ services,
programs, or activities. The Department
has also previously heard the view,
however, that public entities should be
responsible for third-party content
because an entity’s reliance on
inaccessible third-party content can
prevent people with disabilities from
having equal access to the public
entity’s own services, programs, and
activities. Furthermore, boundaries
between web content generated by a
public entity and by a third party are
often difficult to discern.
At this time, the Department is
proposing the following two limited
exceptions related to third-party content
in §§ 35.201(c)–(d) and is posing
questions for public comment.
Section 35.201(c): Web Content Posted
by a Third Party on a Public Entity’s
Website
Proposed § 35.201(c) provides an
exception to the web accessibility
requirements of proposed § 35.200 for
‘‘web content posted by a third party
that is available on a public entity’s
website.’’
The Department is proposing this
exception in recognition of the fact that
individuals other than a public entity’s
agents sometimes post content on a
public entity’s website. For example,
members of the public may sometimes
post on a public entity’s online message
boards, wikis, social media, or other
web forums, many of which are
unregulated, interactive spaces designed
to promote the sharing of information
and ideas. Members of the public may
post frequently, at all hours of the day
or night, and a public entity may have
little or no control over the content
posted. In some cases, a public entity’s
website may include posts from third
parties dating back many years, which
are likely of limited, if any, relevance
today. Because public entities often lack
control over this third-party content, it
may be challenging (or impossible) for
them to make it accessible. Moreover,
because this third-party content may be
outdated or unrelated to a public
entity’s services, programs, and
activities, there may be only limited
benefit to requiring public entities to
make this content accessible.
Accordingly, the Department believes it
is appropriate to create an exception for
this content. However, while this
exception applies to web content posted
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by third parties, it does not apply to the
tools or platforms used to post thirdparty content on a public entity’s
website such as message boards—these
tools and platforms are subject to the
rule’s technical standard.
This exception applies to, among
other third-party content, documents
filed by third parties in administrative,
judicial, and other legal proceedings
that are available on a public entity’s
website. This example helps to illustrate
why the Department believes this
exception is necessary. Many public
entities have either implemented or are
developing an automated process for
electronic filing of documents in
administrative, judicial, or legal
proceedings in order to improve
efficiency in the collection and
management of these documents. Courts
and other public entities receive high
volumes of filings in these sorts of
proceedings each year. The majority of
these documents are submitted by third
parties—such as a private attorney in a
legal case or other members of the
public—and often include appendices,
exhibits, or other similar supplementary
materials that may be difficult to make
accessible.
However, the Department notes that
public entities have existing obligations
under title II of the ADA to ensure the
accessibility of their services, programs,
and activities.116 Accordingly, for
example, if a person with a disability is
a party to a case and requests access to
inaccessible filings submitted by a third
party in a judicial proceeding that are
available on a State court’s website, the
court may need to timely provide those
filings in an accessible format.
Similarly, public entities may need to
provide reasonable modifications to
ensure that people with disabilities have
access to the entities’ services,
programs, and activities. For example, if
a hearing had been scheduled in the
proceeding referenced above, the court
might need to postpone the hearing if it
did not provide the filings in an
accessible format to the requestor in
sufficient time for the requestor to
review the documents before the
scheduled hearing.
Sometimes a public entity itself
chooses to post content created by a
third party on its website. This
exception does not apply to content
posted by the public entity itself, even
if the content was originally created by
a third party. For example, many public
entities post third-party content on their
websites, such as calendars, scheduling
tools, maps, reservations systems, and
payment systems that were developed
116 28
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by an outside technology company. To
the extent a public entity chooses to rely
on third-party content on its website, it
must select third-party content that
meets the requirements of proposed
§ 35.200.
Moreover, a public entity may not
delegate away its obligations under the
ADA.117 Accordingly, if a public entity
relies on a contractor or another third
party to post content on the entity’s
behalf, the public entity retains
responsibility for ensuring the
accessibility of that content. For
example, if a public housing authority
relies on a third-party contractor to
collect applications for placement on a
waitlist for housing, the public housing
authority must ensure that this content
is accessible.
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 21: What types of third-party
web content can be found on websites
of public entities and, how would
foreseeable advances in technology
affect the need for creating an exception
for this content? To what extent is this
content posted by the public entities
themselves, as opposed to third parties?
To what extent do public entities
delegate to third parties to post on their
behalf? What degree of control do public
entities have over content posted by
third parties, and what steps can public
entities take to make sure this content
is accessible?
Question 22: What would the impact
of this exception be on people with
disabilities?
Section 35.201(d): Third-Party Content
Linked From a Public Entity’s Website
Proposed § 35.201(d) provides that a
public entity is not responsible for the
accessibility of third-party web content
linked from the public entity’s website
‘‘unless the public entity uses the thirdparty web content to allow members of
the public to participate in or benefit
from the public entity’s services,
programs, or activities.’’ Many public
entities’ websites include links to other
websites that contain information or
resources in the community offered by
third parties that are not affiliated with
the public entity. Clicking on one of
these links will take an individual away
from the public entity’s website to the
website of a third party. Typically, the
public entity has no control over or
responsibility for a third party’s web
content or the operation of the third
party’s website. Accordingly, the public
entity has no obligation to make the
content on a third party’s website
accessible. For example, if for purely
informational or reference purposes, a
public university posts a series of links
to restaurants and tourist attractions that
members of the public may wish to visit
in the surrounding area, the public
entity is not responsible for ensuring the
websites of those restaurants and tourist
attractions are accessible.
Proposed § 35.201(d) generally allows
public entities to provide relevant links
to third-party web content that may be
helpful without making them
responsible for the third party’s web
content. However, the Department’s title
II regulation prohibits discrimination in
the provision of any aid, benefit, or
service provided by public entities
directly or through contractual,
licensing, or other arrangements.118
Therefore, if the public entity uses the
linked third-party web content to allow
members of the public to participate in
or benefit from the public entity’s
services, programs, or activities, then
the public entity must ensure it only
links to third-party web content that
complies with the web accessibility
requirements of proposed § 35.200. This
approach is consistent with public
entities’ obligation to make all of their
services, programs, or activities
accessible to the public, including those
it provides through third parties.119 For
example, a public entity that links to
online payment processing websites
offered by third parties to accept the
payment of fees, parking tickets, or taxes
must ensure that the third-party web
content it links to in order for members
of the public to pay for the public
entity’s services, programs, or activities
complies with the web accessibility
requirements of proposed § 35.200. In
other words, if a public entity links to
a website for a third-party payment
service that the entity allows the public
to use to pay taxes, the public entity
would be using that third-party web
content to allow members of the public
to participate in its tax program, and the
linked third-party web content would
need to comply with this rule.
Otherwise, the public entity’s tax
program would not be equally
accessible to people with disabilities.
Similarly, if a public entity links to a
118 28
117 See
28 CFR 35.130(b)(1) (prohibiting
discrimination through a contractual, licensing, or
other arrangement that would provide an aid,
benefit, or service to a qualified individual with a
disability that is not equal to that afforded others).
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CFR 35.130(b)(1).
28 CFR 35.130(b)(1)(ii) (prohibiting
discrimination through a contractual, licensing, or
other arrangement that would provide an aid,
benefit, or service to a qualified individual with a
disability that is not equal to that afforded others).
119 See
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third-party website that processes
applications for benefits or requests to
sign up for classes or programs the
public entity offers, the public entity is
using the third party’s linked web
content to allow members of the public
to participate in the public entity’s
services, programs, or activities, and the
public entity must thus ensure that it
links to only third-party web content
that complies with the requirements of
proposed § 35.200.
The Department believes this
approach strikes the appropriate balance
between acknowledging that public
entities may not have the ability to make
third parties’ web content accessible
and recognizing that public entities do
have the ability to choose to use only
third-party content that is accessible
when that content is used to allow
members of the public to participate in
or benefit from the public entity’s
services, programs, or activities.
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 23: Do public entities link to
third-party web content to allow
members of the public to participate in
or benefit from the entities’ services,
programs, or activities? If so, to what
extent does the third-party web content
that public entities use for that purpose
comply with WCAG 2.1 Level AA?
Question 24: What would the impact
of this exception be on people with
disabilities and how would foreseeable
advances in technology affect the need
for this exception?
External Mobile Apps
Many public entities use mobile apps
that are developed, owned, and
operated by third parties, such as
private companies, to allow the public
to access the entity’s services, programs,
or activities. We will refer to these
mobile apps as ‘‘external mobile
apps.’’ 120 One example of an external
mobile app is the ‘‘ParkMobile’’ app, a
private company’s app that some cities
direct the public to in order to pay for
120 In this document, we refer to web content that
is created by someone other than a public entity as
‘‘third-party web content.’’ We note that we do not
use ‘‘third-party’’ to describe mobile apps here to
avoid confusion. It is our understanding that the
term ‘‘third-party mobile app’’ appears to have a
different meaning in the technology industry and
some understand ‘‘a third-party app’’ as an
application that is provided by a vendor other than
the manufacturer of the device or operating system
provider. See Alice Musyoka, Third-Party Apps,
Webopedia (Aug. 4, 2022), https://
www.webopedia.com/definitions/third-party-apps/
[https://perma.cc/SBW3-RRGN].
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parking in the city.121 In addition,
members of the public use mobile apps
that are operated by private companies,
like the ‘‘SeeClickFix’’ app, to submit
non-emergency service requests such as
fixing a pothole or a streetlight.122
At this time, the Department is not
proposing to create an exception for
public entities’ use of external mobile
apps (e.g., mobile apps operated by a
third party) from proposed § 35.200. We
expect that public entities are using
external mobile apps mostly to offer the
entities’ services, programs, and
activities, such that creating an
exception for these apps would not be
appropriate.
Accordingly, the Department is
seeking comment and additional
information on external mobile apps
that public entities use to offer their
services, programs, and activities. Please
provide as much detail as possible and
any applicable data, suggested
alternative approaches or requirements,
arguments, explanations, and examples
in your responses to the following
questions.
Question 25: What types of external
mobile apps, if any, do public entities
use to offer their services, programs, and
activities to members of the public, and
how accessible are these apps? While
the Department has not proposed an
exception to the requirements proposed
in § 35.200 for public entities’ use of
external mobile apps, should the
Department propose such an exception?
If so, should this exception expire after
a certain time, and how would this
exception impact persons with
disabilities?
Password-Protected Class or Course
Content of Public Educational
Institutions
Proposed § 35.201(e) and (f) provide
exceptions for public educational
institutions’ password-protected class or
course content where there is no student
with a disability enrolled in the class or
course (or, in the elementary and
secondary school context, where there is
no student enrolled in the class or
course who has a parent with a
disability) who needs the passwordprotected content to be made accessible.
Public educational institutions, like
many other public institutions, use their
websites to provide a variety of services,
programs, and activities to members of
121 See ParkMobile Parking App, https://
parkmobile.io [https://perma.cc/G7GY-MDFE].
122 See Using Mobile Apps in Government, IBM
Ctr. for the Bus. of Gov’t, at 32–33 (2015), https://
www.businessofgovernment.org/sites/default/files/
Using%20Mobile%20Apps%20in
%20Government.pdf [https://perma.cc/248X8A6C].
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the public. Many of the services,
programs, and activities on these
websites are available to anyone. The
content on these websites can include
such general information as the
academic calendar, enrollment process,
admission requirements, school lunch
menus, school policies and procedures,
and contact information. Under the
proposed regulation, all such services,
programs, or activities available to the
public on the websites of public
educational institutions must comply
with the requirements of proposed
§ 35.200 unless the content is subject to
a proposed exception.
In addition to the information
available to the general public on the
websites of public educational
institutions, the websites of many
schools, colleges, and universities also
make certain services, programs, and
activities available to a discrete and
targeted audience of individuals (e.g.,
students taking particular classes or
courses or, in the elementary or
secondary school context, parents of
students enrolled in particular classes or
courses). This information is often
provided using a Learning Management
System (‘‘LMS’’) or similar platform that
can provide secure online access and
allow the exchange of educational and
administrative information in real time.
LMSs allow public educational
institutions and their faculty and staff to
exchange and share information with
students and parents about classes or
courses and students’ progress. For
example, faculty and staff can create
and collect assignments, post grades,
provide real-time feedback, and share
subject-specific media, documents, and
other resources to supplement and
enrich the curriculum. Parents can track
their children’s attendance,
assignments, grades, and upcoming
class events. To access the information
available on these platforms, students
(and parents in the elementary and
secondary school context) generally
must obtain a password, login
credentials, or some equivalent from the
educational institution. The discrete
population that has access to this
content may not always include a
person with a disability. For example, a
student who is blind may not have
enrolled in a psychology course, or a
parent who is deaf may not have a child
enrolled in a particular ninth-grade
world history class.
The Department’s regulatory proposal
would require that the LMS platforms
that public elementary and secondary
schools, colleges, and universities use
comply with proposed § 35.200.
However, subject to limitations, the
Department is proposing an exception
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for password-protected class or course
content. Thus, while the LMS platform
would need to be accessible, class or
course content (such as syllabi and
assigned readings) posted on the
password-protected LMS platform
would not need to be, except in
specified circumstances. Specifically,
the content available on passwordprotected websites for specific classes or
courses would generally be excepted
from the requirements of proposed
§ 35.200 unless a student is enrolled in
that particular class or course and the
student (or the parent 123 in the
elementary and secondary school
context) would be unable, because of a
disability, to access the content posted
on the password-protected website for
that class or course. Thus, once a
student with a disability (or a student in
an elementary or secondary school with
a parent with a disability) is enrolled in
a particular class or course, the content
available on the password-protected
website for the specific class or course
would need to be made accessible in
accordance with certain compliance
dates discussed below. This may
include scenarios in which a student
with a disability (or, in the elementary
and secondary school context, a student
whose parent has a disability)
preregisters, enrolls, or transfers into a
class or course or acquires a disability
during the term, or when a school
otherwise identifies a student in a class
or course (or their parent in the
elementary and secondary school
context) as having a disability. The
educational institution would generally
be required to make the course content
for that class or course fully compliant
with all WCAG 2.1 Level AA success
criteria, not merely the criteria related to
that student or parent’s disability. This
will ensure that course content becomes
more accessible to all students over
time. In addition, the Department
expects that it will be more
straightforward for public entities to
comply with WCAG 2.1 Level AA as a
whole, rather than attempting to
identify and isolate the WCAG 2.1
success criteria that relate to a specific
student, and then repeating that process
for a subsequent student with a different
disability.
The Department proposes this
exception for class and course content
based on its understanding that it would
be burdensome to require public
educational institutions to make
123 The Department notes that the term ‘‘parent’’
as used throughout proposed § 35.201(f) is intended
to include biological, adoptive, step-, or foster
parents; legal guardians; or other individuals
recognized under Federal or State law as having
parental rights.
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accessible all of the documents, videos,
and other content that many instructors
upload and assign via LMS websites.
For instance, instructors may scan hardcopy documents and then upload them
to LMS sites as conventional electronic
documents. In some instances, these
documents comprise multiple chapters
from books and may be hundreds of
pages long. Similarly, instructors may
upload videos or other multimedia
content for students to review. The
Department believes that making all of
this content accessible when students
with disabilities (or their parents in the
elementary and secondary context) are
not enrolled in the class or course may
be onerous for public educational
institutions, but the Department also
understands that it is critical for
students and parents with disabilities to
have access to needed course content.
The Department believes its proposal
provides a balanced approach by
ensuring access to students with
disabilities (or, in elementary and
secondary school settings, parents with
disabilities) enrolled in the educational
institution, while recognizing that there
are large amounts of class or course
content that may not immediately need
to be accessed by individuals with
disabilities because they have not
enrolled in a particular class or course.
By way of analogy and as an example,
under the Department’s existing title II
regulations, public educational
institutions are not required to
proactively provide accessible course
handouts to all students in a course, but
they are required to do so for a student
with a disability who needs them to
access the course content. The
Department envisions the requirements
proposed here as an online analogue:
while public educational institutions
are not required to proactively make all
password-protected course handouts
accessible, for example, once an
institution knows that a student with a
disability is enrolled in a course and,
accordingly, needs the content to be
made accessible, the institution must do
so. The institution must also comply
with its obligations to provide
accessible course content under all
other applicable laws, including the
IDEA.
The Department appreciates that some
public educational institutions may find
it preferable or more effective to make
all class or course content accessible
from the outset without waiting for a
student with a disability (or, in the
elementary and secondary school
context, a student with a parent with a
disability) to enroll in a particular class
or course, and nothing in this rule
would prevent public educational
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institutions from taking that approach.
Even if public educational institutions
do not take this approach, the
Department expects that those
institutions will likely need to take
steps in advance so that they are
prepared to make all class or course
content for a particular course
accessible within the required
timeframes discussed below when there
is an enrolled student with a disability
(or, in the elementary and secondary
school context, an enrolled student with
a parent with a disability) who needs
access to that content.
Because the nature, operation, and
structure of public elementary and
secondary schools are different from
those of public colleges and
universities, the proposed regulation
sets forth separate requirements for the
two types of institutions.
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following question.
Question 26: Are there particular
issues relating to the accessibility of
digital books and textbooks that the
Department should consider in
finalizing this rule? Are there particular
issues that the Department should
consider regarding the impact of this
rule on libraries?
Public Postsecondary Institutions:
Password-Protected Web Content
In proposed § 35.201(e), the
Department is considering an exception
to the requirements proposed in
§ 35.200 for public postsecondary
institutions, subject to two limitations.
This exception would provide that
‘‘course content available on a public
entity’s password-protected or
otherwise secured website for admitted
students enrolled in a specific course
offered by a public postsecondary
institution’’ would not need to comply
with the web accessibility requirements
of proposed § 35.200 unless one of the
two limitations described below applies.
As used in this context, ‘‘admitted
students’’ refers to students who have
applied to, been accepted by, and are
enrolled in a particular educational
institution. These students include both
matriculated students (i.e., students
seeking a degree) and non-matriculated
students (i.e., continuing education
students or non-degree-seeking
students). As noted above, this
exception applies only to passwordprotected or otherwise secured content.
Content may be otherwise secured if it
requires some process of authentication
or login to access the content.
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The exception is not intended to
apply to password-protected content for
classes or courses that are made
available to the general public, or a
subset thereof, without enrolling at a
particular educational institution. Such
classes or courses generally only require
limited, if any, registration to
participate. These types of classes or
courses may sometimes be referred to as
Massive Open Online Courses, or
MOOCs. Because access to the content
on these password-protected websites is
not limited to a discrete student
population within an educational
institution but is instead widely
available to the general public—
sometimes without limits as to
enrollment—any individual, including
one with a disability, may enroll or
participate at almost any time. Under
these circumstances, the public entity
must make such class or course content
accessible from the outset of the class or
course regardless of whether a student
with a disability is known to be
participating. The Department is
interested in the public’s feedback on
this exception, and in particular the
impact it may have on public
institutions’ continued use of MOOCs.
The phrase ‘‘enrolled in a specific
course’’ as used in proposed § 35.201(e)
limits the exception to passwordprotected course content for a particular
course, at a particular time, during a
particular term. For example, if a
university offers a 20th-Century Irish
Literature course at 10 a.m. that meets
on Mondays, Wednesdays, and Fridays
for the fall semester of the 2029–2030
academic year, the exception would
apply to the password-protected course
content for that course, subject to the
limitations discussed below.
The proposed exception in § 35.201(e)
would not apply to non-course content
on the public entity’s passwordprotected website that is generally
available to all admitted students. For
example, forms for registering for class,
applications for meal plans or housing,
academic calendars, and
announcements generally made
available to all students enrolled in the
postsecondary institution would all be
required to comply with proposed
§ 35.200. In addition, if a public
postsecondary institution made course
content for specific courses available to
all admitted students on a passwordprotected website, regardless of whether
students had enrolled in that specific
course, the exception would not apply,
even if such content was only made
available for a limited time, such as
within a set time frame for course
shopping.
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Sections 35.201(e)(1)–(2): Limitations to
the Exception for Password-Protected
Course Content for Specific Courses
As noted previously, there are two
important limitations to the general
exception for course content on
password-protected websites of
postsecondary institutions in proposed
§ 35.201(e); both limitations apply to
situations in which an admitted student
with a disability is enrolled in a
particular course at a postsecondary
institution and the student, because of
a disability, would be unable to access
the content on the password-protected
website for the specific course. The
phrase ‘‘the student, because of a
disability, would be unable to access’’ is
meant to make clear that these
limitations are not triggered merely by
the enrollment of a student with a
disability, but instead they are triggered
by the enrollment of a student whose
disability would make them unable to
access the content on the passwordprotected course website. These
limitations would also be triggered by
the development or identification of
such a disability while a student is
enrolled, or the realization that a
student’s disability makes them unable
to access the course content during the
time that they are enrolled. The phrase
‘‘unable to access’’ does not necessarily
mean a student has no access at all.
Instead, the phrase ‘‘unable to access’’ is
intended to cover situations in which a
student’s disability would limit or
prevent their ability to equally access
the relevant content.
The provisions set forth in the
limitations to the exception are
consistent with longstanding obligations
of public entities under title II of the
ADA. Public entities are already
required to make appropriate reasonable
modifications and ensure effective
communication, including by providing
the necessary auxiliary aids and services
to students with disabilities, under the
current title II regulation. It is the public
educational institution, not the student,
that is responsible for ensuring that it is
meeting these obligations. Such
institutions, therefore, should be
proactive in addressing the access needs
of admitted students with disabilities,
including those who would be unable to
access inaccessible course content on
the web. This also means that when an
institution knows that a student with a
disability is unable to access
inaccessible content, the institution
should not expect or require that the
student first attempt to access the
information and be unable to do so
before the institution’s obligation to
make the content accessible arises.
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Correspondingly, when an institution
has notice that such a student is
enrolled in a course, all of the content
available on the password-protected
website for that course must be made
accessible in compliance with the
accessibility requirements of proposed
§ 35.200. The difference between the
two limitations to the exception to
proposed § 35.201(e) is the date that
triggers compliance. The triggering
event is based on when the institution
knew, or should have known, that such
a student with a disability would be
enrolled in a specific course and would
be unable to access the content available
on the password-protected website.
The application of the limitation in
proposed § 35.201(e)(1) and (e)(2),
discussed in detail below, is contingent
upon the institution having notice both
that a student with a disability is
enrolled in a specific course and that
the student cannot access the course
content because of their disability. Once
an institution is on notice that a student
with a disability is enrolled in a specific
course and that the student’s disability
would render the student unable to
access the content available on the
password-protected website for the
specific course, the password-protected
course content for that course must be
made accessible within the time frames
set forth in proposed § 35.201(e)(1) and
(e)(2), which are described in greater
detail below.
The first proposed limitation to the
exception for postsecondary
institutions, proposed § 35.201(e)(1),
would require that ‘‘if a public entity is
on notice that an admitted student with
a disability is pre-registered in a specific
course offered by a public
postsecondary institution and that the
student, because of a disability, would
be unable to access the content available
on the public entity’s passwordprotected or otherwise secured website
for the specific course,’’ then ‘‘all
content available on the public entity’s
password-protected or otherwise
secured website for the specific course
must comply with the requirements of
§ 35.200 by the date the academic term
begins for that course offering. New
content added throughout the term for
the course must also comply with the
requirements of § 35.200 at the time it
is added to the website.’’ Students may
register for classes and make
accessibility requests ahead of the start
of the term—often during the previous
term. The institution therefore knows,
or should know, that a student with a
disability has registered for a particular
course or notified the school that
content must be made accessible for a
particular course. This provision would
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ensure that students with disabilities
have timely access to and equal
opportunity to benefit from content
available on a password-protected
website for their particular courses.
The second proposed limitation to the
exception for postsecondary
institutions, proposed § 35.201(e)(2),
applies to situations in which ‘‘a public
entity is on notice that an admitted
student with a disability is enrolled in
a specific course offered by a public
postsecondary institution after the start
of the academic term, and that the
student, because of a disability, would
be unable to access the content available
on the public entity’s passwordprotected or otherwise secured website
for the specific course.’’ In this instance,
unlike proposed § 35.201(e)(1), the
postsecondary institution is not on
notice until after the start of the
academic term that a student is enrolled
in a particular course and that the
student, because of a disability, would
be unable to access the content on the
password-protected course website. In
such circumstances, all content
available on the public entity’s
password-protected website for the
specific course must comply with the
requirements of proposed § 35.200
within five business days of such notice.
This second limitation would apply to
situations in which students have not
pre-registered in a class, such as when
students enroll in a class during the
add/drop period, or where waitlisted or
transfer students enroll in a class at the
start of, or during, the academic term.
This second limitation to the exception
for postsecondary institutions would
also apply to situations in which the
institution was not on notice that the
enrolled student had a disability and
would be unable to access online course
content until after the academic term
began—because, for example, the
student newly enrolled at the institution
or was recently diagnosed with a
disability.
In proposing the five-day remediation
requirement in this limitation, the
Department is attempting to strike the
appropriate balance between providing
postsecondary institutions with a
reasonable opportunity to make the
content on the password-protected or
otherwise secured website accessible
and providing individuals with
disabilities full and timely access to this
information that has been made
available to all other students in the
course. The Department believes five
days provides a reasonable opportunity
to make the relevant content accessible
in most cases, subject to the general
limitations under proposed § 35.204,
entitled ‘‘Duties.’’ However, the
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Department is interested in the public’s
feedback and data on whether this
remediation requirement provides a
reasonable opportunity to make the
relevant content accessible, and whether
a shorter or longer period would be
more appropriate in most cases.
If, for example, a public college offers
a specific fall semester course, a student
with a disability pre-registers for it and,
because of disability, that student would
be unable to access the content available
on the password-protected website for
that course, all content available on the
institution’s password-protected website
for that specific course must comply
with the requirements of proposed
§ 35.200 by the date the academic
semester begins for the fall semester
(according to the first limitation). If,
instead, that same student does not
enroll in that particular course until two
days after the start of the fall semester,
all content available on the institution’s
password-protected or otherwise
secured website for that specific course
must comply with the requirements of
proposed § 35.200 within five business
days of notice that a student with a
disability is enrolled in that particular
course and, because of disability, would
be unable to access the content
(according to the second limitation).
The exception applies to course
content such as conventional electronic
documents, multimedia content, or
other course material ‘‘available’’ on a
public entity’s password-protected or
otherwise secured website. As such, the
two limitations apply when that content
is made ‘‘available’’ to students with
disabilities enrolled in a specific course
who are unable to access course content.
Although a professor may load all of
their course content on the passwordprotected website at one time, they may
also stagger the release of particular
content to their students at various
points in time during the term. It is
when this content is made available to
students that it must be made accessible
in compliance with proposed § 35.200.
The two limitations to the exception
for password-protected course content
state that the limitations apply
whenever ‘‘the student, because of a
disability, would be unable to access the
content available on the public entity’s
password-protected website for the
specific course.’’ Pursuant to
longstanding obligations of public
entities under title II of the ADA, the
public postsecondary institution must
continue to take other steps necessary to
timely make inaccessible course content
accessible to an admitted student with
a disability during the five-day period
proposed in the second limitation,
unless doing so would result in a
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fundamental alteration or undue
financial and administrative burden.
This could include timely providing
alternative formats, a reader, or a
notetaker for the student with a
disability, or providing other auxiliary
aids and services that enable the student
with a disability to participate in and
benefit from the services, programs, and
activities of the public entity while the
public entity is making the course
content on the password-protected
website accessible.
Once the obligation is triggered to
make password-protected course
content accessible for a specific course,
the obligation is ongoing for the
duration of the course (i.e., the
obligation is not limited to course
content available at the beginning of the
term). Rather, all web content newly
added throughout the remainder of the
student’s enrollment in the course must
also be accessible at the time it is made
available to students. Furthermore, once
a public postsecondary institution
makes conventional electronic
documents, multimedia content, or
other course material accessible in
accordance with the requirements of
proposed § 35.201(e)(1) or (e)(2), the
institution must maintain the
accessibility of that specific content as
long as that content is available to
students on the password-protected
course website, in compliance with the
general accessibility requirement set
forth in proposed § 35.200. However,
new content added later, when there is
no longer a student with a disability
who is unable to access inaccessible
web content enrolled in that specific
course, would not need to be made
accessible because that course-specific
web content would once again be
subject to the exception, unless and
until another student with a disability is
enrolled in that course.
With regard to third-party content
linked to from a password-protected or
otherwise secured website for a specific
course, the exception and limitations set
forth in proposed § 35.201(d) apply to
this content, even when a limitation
under proposed § 35.201(e)(1) or (e)(2)
has been triggered requiring all the
content available to students on a
password-protected website for a
specific course to be accessible.
Accordingly, third-party web content to
which a public entity provides links for
informational or resource purposes is
not required to be accessible; however,
if the postsecondary institution uses the
third-party web content to allow
members of the public to participate in
or benefit from the institution’s services,
programs, or activities, then the
postsecondary institution must ensure it
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links to third-party web content that
complies with the web accessibility
requirements of proposed § 35.200. For
example, if a postsecondary institution
requires students to use a third-party
website it links to on its passwordprotected course website to complete
coursework, then the third-party web
content must be accessible.
The Department believes that this
approach strikes a proper balance of
providing necessary and timely access
to course content, while not imposing
burdens where web content is currently
only utilized by a population of
students without relevant disabilities,
but it welcomes public feedback on
whether alternative approaches might
strike a more appropriate balance.
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 27: How difficult would it be
for public postsecondary institutions to
comply with this rule in the absence of
this exception?
Question 28: What would the impact
of this exception be on people with
disabilities?
Question 29: How do public
postsecondary institutions communicate
general information and course-specific
information to their students?
Question 30: Do public postsecondary
institutions commonly provide parents
access to password-protected course
content?
Question 31: The proposed exception
and its limitations are confined to
content on a password-protected or
otherwise secured website for students
enrolled in a specific course. Do public
postsecondary institutions combine and
make available content for particular
groups of students (e.g., newly admitted
students or graduating seniors) using a
single password-protected website and,
if so, should such content be included
in the exception?
Question 32: On average, how much
content and what type of content do
password-protected course websites of
postsecondary institutions contain? Is
there content posted by students or
parents? Should content posted by
students or parents be required to be
accessible and, if so, how long would it
take a public postsecondary institution
to make it accessible?
Question 33: How long would it take
to make course content available on a
public entity’s password-protected or
otherwise secured website for a
particular course accessible, and does
this vary based on the type of course?
Do students need access to course
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content before the first day of class?
How much delay in accessing online
course content can a student reasonably
overcome in order to have an equal
opportunity to succeed in a course, and
does the answer change depending on
the point in the academic term that the
delay occurs?
Question 34: To what extent do public
postsecondary institutions use or offer
students mobile apps to enable access to
password-protected course content?
Should the Department apply the same
exceptions and limitations to the
exceptions under proposed § 35.201(e)
and (e)(1)–(2), respectively, to mobile
apps?
Question 35: Should the Department
consider an alternative approach, such
as requiring that all newly posted course
content be made accessible on an
expedited time frame, while adopting a
later compliance date for remediating
existing content?
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Public Elementary and Secondary
Schools: Password-Protected Web
Content
In proposed § 35.201(f), the
Department is considering an exception
to the requirements proposed in
§ 35.200 for public elementary and
secondary schools that would provide,
subject to four limitations, that ‘‘class or
course content available on a public
entity’s password-protected or
otherwise secured website for students
enrolled, or parents of students
enrolled, in a specific class or course at
a public elementary or secondary
school’’ would not need to comply with
the web accessibility requirements of
proposed § 35.200.
Because parents of students in
elementary and secondary schools have
greater rights, roles, and responsibilities
with regard to their children and their
children’s education than in the
postsecondary education setting, and
because these parents typically interact
with such schools much more often and
in much greater depth and detail,
parents are expressly included in both
the general exception for passwordprotected web content in proposed
§ 35.201(f) and its limitations.124 Parents
use password-protected websites to
access progress reports and grades, track
homework and long-term project
assignments, and interact regularly with
their children’s teachers and
administrators.
124 The Department notes that the term ‘‘parent’’
as used throughout proposed § 35.201(f) is intended
to include biological, adoptive, step-, or foster
parents; legal guardians; or other individuals
recognized under Federal or State law as having
parental rights.
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Proposed exception § 35.201(f)
provides that ‘‘class or course content
available on a public entity’s passwordprotected or otherwise secured website
for students enrolled, or parents of
students enrolled, in a specific class or
course offered by a public elementary or
secondary school’’ does not need to
comply with the accessibility
requirements of proposed § 35.200
unless and until a student is enrolled in
that particular class or course and either
the student or the parent would be
unable, because of a disability, to access
the content available on the passwordprotected website. As used in this
context, ‘‘enrolled . . . in a specific
class or course’’ limits the exception to
password-protected class or course
content for a particular class or course
during a particular academic term. For
example, content on a passwordprotected website for students, and
parents of students, in a specific fifthgrade class would not need to be made
accessible unless a student enrolled, or
the parent of a student enrolled, in the
class that term would be unable,
because of a disability, to access the
content on the password-protected
website.
The proposed exception in § 35.201(f)
is not intended to apply to passwordprotected content that is available to all
students or their parents in a public
elementary or secondary school.
Content on password-protected websites
that is not limited to students enrolled,
or parents of students enrolled, in a
specific class or course, but instead is
available to all students or their parents
at the public elementary or secondary
school is not subject to the exception.
For example, a school calendar available
on a password-protected website to
which all students or parents at a
particular elementary school are given a
password would not be subject to the
exception for password-protected web
content for a specific class or course. It
would, therefore, need to comply with
the requirements of proposed § 35.200.
Sections 35.201(f)(1)–(4): Limitations to
the Exception for Password-Protected
Class or Course Content
There are four critical limitations to
the general exception in proposed
§ 35.201(f) for public elementary and
secondary schools’ class or course
content. These limitations are identical
to those discussed above in the
postsecondary context, except that they
arise not only when a school is on
notice that a student with a disability is
enrolled in a particular class or course
and cannot access content on the class
or course’s password-protected website
because of their disability, but also
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when the same situation arises for a
parent with a disability. The discussion
above of the limitations in the
postsecondary context applies with
equal force here, and a shorter
discussion of the limitations in the
elementary and secondary context
follows. However, the Department
acknowledges that there are existing
legal frameworks specific to the public
elementary and secondary education
context which are described further in
this section.
The first limitation, in proposed
§ 35.201(f)(1), addresses situations in
which the public entity is on notice
before the beginning of the academic
term that a student with a disability is
pre-registered in a specific class or
course offered by a public elementary or
secondary school, and the student,
because of a disability, would be unable
to access the content available on the
public entity’s password-protected or
otherwise secured website for the
specific class or course. In such
circumstances, all content available on
the public entity’s password-protected
website for the specific class or course
must comply with the requirements of
proposed § 35.200 by the date the term
begins for that class or course. New
content added throughout the term for
the class or course must also comply
with the requirements of proposed
§ 35.200 at the time it is added to the
website.
Similarly, the second limitation,
proposed § 35.201(f)(2), addresses
situations in which the pre-registered
student’s parent has a disability.
Proposed § 35.201(f)(2) applies when
the public entity is on notice that a
student is pre-registered in a public
elementary or secondary school’s class
or course, and that the student’s parent
needs the content to be accessible
because of a disability that inhibits
access to the content available on the
password-protected website for the
specific class or course. In such
circumstances, all content available on
the public entity’s password-protected
website for the specific class or course
must comply with the requirements of
proposed § 35.200 by the date the school
term begins for that class or course. New
content added throughout the term for
the class or course must also comply
with the requirements of proposed
§ 35.200 at the time it is added to the
website.
The third and fourth limitations to the
exception for class or course content on
password-protected websites for
particular classes or courses at
elementary and secondary schools are
similar to the first and second
limitations but have different triggering
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events. These limitations apply to
situations in which a student is enrolled
in a public elementary or secondary
school’s class or course after the term
begins, or when a school is otherwise
not on notice until after the term begins
that there is a student or parent with a
disability who is unable to access class
or course content because of their
disability. The third limitation, in
proposed § 35.201(f)(3), would apply
once a public entity is on notice that ‘‘a
student with a disability is enrolled in
a public elementary or secondary
school’s class or course after the term
begins and that the student, because of
a disability, would be unable to access
the content available on the public
entity’s password-protected or
otherwise secured website for the
specific class or course.’’ In such
circumstances, all content available on
the public entity’s password-protected
or otherwise secured website for the
specific class or course must comply
with the requirements of proposed
§ 35.200 within five business days of
such notice. New content added
throughout the term for the class or
course must also comply with the
requirements of proposed § 35.200 at the
time it is added to the website.
Proposed § 35.201(f)(4), the fourth
limitation, applies the same triggering
event as in proposed § 35.201(f)(3) to
situations in which the student’s parent
has a disability. Proposed § 35.201(f)(4)
would apply once a public entity is on
notice that a student is enrolled in a
public elementary or secondary school’s
class or course after the term begins, and
that the student’s parent needs the
content to be accessible because of a
disability that would inhibit access to
the content available on the public
entity’s password-protected website for
the specific class or course. In such
circumstances, all content available on
the public entity’s password-protected
or otherwise secured website for the
specific class or course must comply
with the requirements of proposed
§ 35.200 within five business days of
such notice. New content added
throughout the term for the class or
course must also comply with the
requirements of proposed § 35.200 at the
time it is added to the website.
The procedures for enrollment in the
public elementary or secondary school
context likely vary from the
postsecondary context. Unlike in
postsecondary institutions, public
elementary and secondary schools
generally have more autonomy and
authority regarding student placement
in a particular class or course. The
student or parent generally does not
control placement in a particular class
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or course. To the extent a parent or
student has such autonomy or authority,
the application of the limitations in
proposed § 35.201(f)(1) through (f)(4) is
contingent on whether the public
elementary or secondary school knows,
or should know, that a student with a
disability is enrolled, or a parent with
a disability has a child enrolled, in a
particular class or course, and that the
student or parent would be unable to
access the class or course content
because of their disability.
Regardless of what process a school
follows for notification of enrollment,
accessibility obligations for passwordprotected class or course content come
into effect once a school is on notice
that materials need to be made
accessible under these provisions. For
example, some schools that allow
students to self-select the class or course
in which they enroll may require
students with disabilities to notify their
guidance counselor or the special
education coordinator each time they
have enrolled in a class or course. With
respect to parents, some schools may
have a form that parents fill out as part
of the process for enrolling a student in
a school, or in a particular class or
course in that school, indicating that
they (the parent) are an individual with
a disability who, because of their
disability, needs auxiliary aids or
services. Other schools may publicize
the schools’ responsibility to make class
or course content accessible to parents
with disabilities and explain the process
for informing the school that they
cannot access inaccessible websites.
Under this rule, regardless of the
process a school follows, once the
public elementary or secondary school
is on notice, the password-protected
class or course content for that class or
course must be made accessible within
the time frames set forth in proposed
§ 35.201(f)(1) through (f)(4). We note
that the ADA would prohibit limiting
assignment of students with disabilities
only to classes for which the content has
already been made accessible.125
The Department emphasizes that in
the public elementary and secondary
school context a variety of Federal laws
include robust protections for students
with disabilities, and this rule is
intended to build on, but not to
supplant, those protections for students
with disabilities. Public schools that
receive Federal financial assistance
already must ensure they comply with
obligations under other statutes such as
the IDEA and section 504 of the
Rehabilitation Act, including the
Department of Education’s regulations
125 See
PO 00000
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implementing those statutes. The IDEA
and section 504 already include
affirmative obligations that covered
public schools work to identify children
with disabilities, regardless of whether
the schools receive notice from a parent
that a student has a disability, and
provide a Free Appropriate Public
Education (FAPE).126 The Department
acknowledges that educational entities
likely already employ procedures under
those frameworks to identify children
with disabilities and assess their
educational needs. Under the IDEA and
section 504, schools have obligations to
identify students with the relevant
disabilities that would trigger the
limitations in proposed § 35.201(f)(1)
through (f)(4). The proposed rule would
add to and would not supplant the
already robust framework for identifying
children with disabilities and making
materials accessible. The language used
in the educational exceptions and their
limitations is not intended to replace or
conflict with those existing procedures.
In other words, regardless of the means
by which schools identify students with
the relevant disabilities here, including
procedures developed to comply with
the IDEA and section 504 regulations,
once a school is on notice that either the
student or the parent has a disability
and requires access because of that
disability, the limitation is triggered.
Further, schools should not alter their
existing practices to wait for notice
because of this rule—this rule does not
modify existing requirements that
schools must follow under other statutes
such as the IDEA and section 504.
Federal and State laws may have a
process for students who are newly
enrolled in a school and those who are
returning to have their educational
program or plan reviewed and revised
annually. This generally would include
a determination of the special
education, related services,
supplementary aids and services,
program modifications, and supports
from school personnel that the student
needs, which under the ADA would be
similar to the terms ‘‘modifications’’ and
‘‘auxiliary aids and services.’’ However,
once the school is on notice that the
student has a disability and requires
access because of the disability, those
processes and procedures cannot be
used to delay or avoid compliance with
the time frames set forth in proposed
§ 35.201(f)(1) through (f)(4). For
example, if a school knows that a
student who is blind is enrolled at the
school for the first time over the
summer, the school is then on notice
that, in accordance with proposed
126 See
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§ 35.201(f)(1), the content on the
school’s password-protected website for
the class or course to which the school
assigns the student must be accessible
in compliance with the requirements of
proposed § 35.200 by the date the term
begins, regardless of the timeframes for
evaluation or the review or development
of an Individualized Education Program
or section 504 Plan.
As in the postsecondary context, the
Department believes that these
exceptions and limitations strike a
proper balance of providing necessary
and timely access to class or course
content, while not imposing burdens
where class or course content is
currently only used by a population of
students and parents without relevant
disabilities, but it welcomes public
feedback on whether alternative
approaches might strike a more
appropriate balance.
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 36: How difficult would it be
for public elementary and secondary
schools to comply with this rule in the
absence of this exception?
Question 37: What would the impact
of this exception be on people with
disabilities?
Question 38: How do elementary and
secondary schools communicate general
information and class- or coursespecific information to students and
parents?
Question 39: The proposed exception
and its limitations are confined to
content on a password-protected or
otherwise secured website for students
enrolled, or parents of students
enrolled, in a specific class or course.
Do public elementary or secondary
schools combine and make available
content for all students in a particular
grade or certain classes (e.g., all 10thgraders in a school taking chemistry in
the same semester) using a single
password-protected website and, if so,
should such content be included in the
exception?
Question 40: Do elementary and
secondary schools have a system
allowing a parent with a disability to
provide notice of their need for
accessible class or course content?
Question 41: On average, how much
content and what type of content do
password-protected websites of public
elementary or secondary school courses
contain? Is there content posted by
students or parents? Should content
posted by students or parents be
required to be accessible and, if so, how
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long would it take a public elementary
or secondary school to make it
accessible?
Question 42: How long would it take
to make class or course content
available on a public entity’s passwordprotected or otherwise secured website
for the particular class or course
accessible, and does this vary based on
the type of course? Do parents and
students need access to class or course
content before the first day of class?
How much delay in accessing online
class or course content can a student
reasonably overcome in order to have an
equal opportunity to succeed in a
course, and does the answer change
depending on the point in the academic
term that the delay occurs?
Question 43: To what extent do public
elementary or secondary schools use or
offer students or parents mobile apps to
enable access to password-protected
class or course content? Should the
Department apply the same exceptions
and limitations to the exceptions under
proposed § 35.201(f) and (f)(1)–(4),
respectively, to mobile apps?
Question 44: Should the Department
consider an alternative approach, such
as requiring that all newly posted course
content be made accessible on an
expedited timeframe, while adopting a
later compliance date for remediating
existing content?
Individualized, Password-Protected
Documents
In proposed § 35.201(g), the
Department is considering an exception
to the accessibility requirements of
proposed § 35.200 for web-based
‘‘[c]onventional electronic documents
that are: (1) about a specific individual,
their property, or their account; and (2)
password-protected or otherwise
secured.’’
Many public entities use the web to
provide access to digital versions of
documents for their customers,
constituents, and other members of the
public. For example, some public utility
companies provide a website where
customers can log in and view a PDF
version of their latest bill. Similarly,
many public hospitals offer a virtual
platform where healthcare providers can
send digital versions of test results and
scanned documents to their patients.
The Department anticipates that a
public entity could have many such
documents. The Department also
anticipates that making conventional
electronic documents accessible in this
context may be difficult for public
entities, and that in many instances, the
individuals who are entitled to view a
particular individualized document will
not need an accessible version.
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However, some public entities might be
able to make some types of documents
accessible relatively easily after they
make the template they use to generate
these individualized documents
accessible. To help better understand
whether these assumptions are accurate,
the Department asks questions for
public comment below about what
kinds of individualized, conventional
electronic documents public entities
make available, how public entities
make these documents available to
individuals, and what experiences
individuals have had in accessing these
documents.
This proposed exception is expected
to reduce the burdens on public entities.
The Department expects that making
such documents accessible for every
individual, regardless of whether they
need such access, could be too
burdensome and would not deliver the
same benefit to the public as a whole as
if the public entity were to focus on
making other types of web content
accessible. The Department expects that
it would generally be more impactful for
public entities to focus resources on
making documents accessible for those
individuals who actually need the
documents to be accessible. It is the
Department’s understanding that
making conventional electronic
documents accessible is generally a
more time- and resource- intensive
process than making other types of web
content accessible. As discussed below,
public entities must still provide
accessible versions of individualized,
password-protected conventional
electronic documents in a timely
manner when those documents pertain
to individuals with disabilities. This
approach is consistent with the broader
title II regulatory framework. For
example, public utility companies are
not required to provide accessible bills
to all customers. Instead, the companies
need only provide accessible bills to
those customers who need them because
of a disability.
This exception is limited to
‘‘conventional electronic documents’’ as
defined in proposed § 35.104. This
exception would, therefore, not apply in
a case where a public entity makes
individualized information available in
formats other than a conventional
electronic document. For example, if a
public utility makes individualized bills
available on a password-protected web
platform as HTML content (rather than
a PDF), that content would not be
subject to this exception. Such bills,
therefore, would need to be made
accessible in accordance with proposed
§ 35.200. On the other hand, if a public
entity makes individualized bills
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available on a password-protected web
platform in PDF form, that content
would be excepted from the
accessibility requirements of proposed
§ 35.200, subject to the limitation
discussed in further detail below.
This exception also only applies
when the content is individualized for
a specific person or their property or
account. Examples of individualized
documents include medical records or
notes about a specific patient, receipts
for purchases (like a parent’s receipt for
signing a child up for a recreational
sports league), utility bills concerning a
specific residence, or Department of
Motor Vehicles records for a specific
person or vehicle. Content that is
broadly applicable or otherwise for the
general public (i.e., not individualized)
is not subject to this exception. For
instance, a PDF notice that explains an
upcoming rate increase for all utility
customers and is not addressed to a
specific customer would not be subject
to this exception. Such a general notice
would not be subject to this exception
even if it were attached to or sent with
an individualized letter, like a bill, that
is addressed to a specific customer.
Finally, this exception applies only to
password-protected or otherwise
secured content. Content may be
otherwise secured if it requires some
process of authentication or login to
access the content. Unless subject to
another exception, conventional
electronic documents that are on a
public entity’s general, public web
platform would not be excepted.
This proposed exception for
individualized, password-protected
conventional electronic documents has
certain limitations. While the exception
is meant to alleviate the burden on
public entities of making all
individualized, password-protected or
otherwise secured conventional
electronic documents generally
accessible, people with disabilities must
still be able to access information from
documents that pertain to them. An
accessible version of these documents
must be provided in a timely manner.127
A public entity might also need to make
reasonable modifications to ensure that
a person with a disability has equal
access to its services, programs, or
activities.128 For example, if a person
with a disability requests access to an
inaccessible bill from a county hospital,
the hospital may need to extend the
payment deadline and waive any late
fees if the hospital does not provide the
bill in an accessible format in sufficient
127 See
128 See
28 CFR 35.160(b)(2).
28 CFR 35.130(b)(7)(i).
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time for the person to review the bill
before payment is due.
As in other situations involving a
public entity’s effective communication
obligations—for example, when
providing an American Sign Language
interpreter—this exception and its
accompanying limitation would also
apply to the parent, spouse, or
companion of the person receiving the
public entity’s services in appropriate
circumstances.129
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 45: What kinds of
individualized, conventional electronic
documents do public entities make
available and how are they made
available (e.g., on websites or mobile
apps)? How difficult would it be to make
such documents accessible? How do
people with disabilities currently access
such documents?
Question 46: Do public entities have
adequate systems for receiving
notification that an individual with a
disability requires access to an
individualized, password-protected
conventional electronic document?
What kinds of burdens do these
notification systems place on
individuals with disabilities and how
easy are these systems to access? Should
the Department consider requiring a
particular system for notification or a
particular process or timeline that
entities must follow when they are on
notice that an individual with a
disability requires access to such a
document?
Question 47: What would the impact
of this exception be on people with
disabilities?
Question 48: Which provisions of this
rule, including any exceptions (e.g., the
exceptions for individualized,
password-protected conventional
electronic documents and content
posted by a third party), should apply
to mobile apps?
§ 35.202 Conforming Alternate
Versions
Generally, to meet the WCAG 2.1
standard, a web page must satisfy one of
the defined levels of conformance—in
the case of this proposed rule, Level
AA.130 However, WCAG 2.1 allows for
129 See ADA Requirements: Effective
Communication, U.S. Dep’t of Just. (updated Feb.
28, 2020), https://www.ada.gov/effective-comm.htm
[https://perma.cc/W9YR-VPBP].
130 See W3C®, Web Content Accessibility
Guidelines 2.1 (June 5, 2018), https://www.w3.org/
TR/WCAG21/#cc1 [https://perma.cc/ZL6N-VQX4].
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the creation of a ‘‘conforming alternate
version,’’ a separate web page that is
accessible, up-to-date, contains the same
information and functionality as the
inaccessible web page, and can be
reached via a conforming page or an
accessibility-supported mechanism.131
The ostensible purpose of a
‘‘conforming alternate version’’ is to
provide individuals with relevant
disabilities access to the information
and functionality provided to
individuals without relevant
disabilities, albeit via a separate vehicle.
Having direct access to an accessible
web page provides the best user
experience for many individuals with
disabilities, and it may be difficult for
public entities to reliably maintain
conforming alternate versions, which
must be kept up to date. Accordingly,
the W3C® explains that providing a
conforming alternate version of a web
page is intended to be a ‘‘fallback option
for conformance to WCAG and the
preferred method of conformance is to
make all content directly accessible.’’ 132
However, WCAG 2.1 does not explicitly
limit the circumstances under which an
entity may choose to create a
conforming alternate version of a web
page instead of making the web page
directly accessible.
The Department is concerned that
WCAG 2.1 can be interpreted to permit
the development of two separate
websites—one for individuals with
relevant disabilities and another for
individuals without relevant
disabilities—even when doing so is
unnecessary and when users with
disabilities would have a better
experience using the main web page.
This segregated approach is concerning
and appears inconsistent with the
ADA’s core principles of inclusion and
integration.133 The Department is also
concerned that the creation of separate
websites for individuals with
disabilities may, in practice, result in
unequal access to information and
131 See W3C®, Web Content Accessibility
Guidelines 2.1, Conforming Alternate Version (June
5, 2018), https://www.w3.org/TR/WCAG21/#dfnconforming-alternate-version [https://perma.cc/
5NJ6-UZPV].
132 See W3C®, Understanding Conformance (last
updated Dec. 24, 2022), https://www.w3.org/WAI/
WCAG21/Understanding/conformance [https://
perma.cc/Q2XU-K4YY].
133 See, e.g., 42 U.S.C. 12101(a)(2) (finding that
‘‘society has tended to isolate and segregate
individuals with disabilities’’); 28 CFR
35.130(b)(1)(iv) (stating that public entities
generally may not ‘‘[p]rovide different or separate
aids, benefits, or services to individuals with
disabilities . . . than is provided to others unless
such action is necessary[.]’’); 35.130(d) (requiring
that public entities administer services, programs,
and activities in ‘‘the most integrated setting
appropriate’’).
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functionality. However, as the W3C®
explains, certain limited circumstances
may warrant the use of conforming
alternate versions of web pages. For
example, a conforming alternate version
of a web page may be necessary when
a new, emerging technology is used on
a web page, but the technology is not yet
capable of being made accessible, or
when a website owner is legally
prohibited from modifying the web
content.134
Due to the concerns about user
experience, segregation of users with
disabilities, unequal access to
information, and maintenance burdens
discussed above, the Department is
proposing to adopt a slightly different
approach to ‘‘conforming alternate
versions’’ than that provided under
WCAG 2.1. Instead of permitting entities
to adopt ‘‘conforming alternate
versions’’ whenever they believe this is
appropriate, proposed § 35.202 makes it
clear that use of conforming alternate
versions of websites and web content to
comply with the Department’s proposed
requirements in § 35.200 is permissible
only where it is not possible to make
websites and web content directly
accessible due to technical limitations
(e.g., technology is not yet capable of
being made accessible) or legal
limitations (e.g., web content is
protected by copyright). Conforming
alternate versions should be used
rarely—when it is truly not possible to
make the content accessible for reasons
beyond the public entity’s control. For
example, a conforming alternate version
would not be permissible due to
technical limitations just because a
town’s web developer lacked the
knowledge or training needed to make
content accessible. By contrast, the town
could use a conforming alternate
version if its website included a new
type of technology that it is not yet
possible to make accessible, such as a
specific kind of immersive virtual
reality environment. Similarly, a town
would not be permitted to claim a legal
limitation because its general counsel
failed to approve contracts for a web
developer with accessibility experience.
Instead, a legal limitation would apply
when the inaccessible content itself
could not be modified for legal reasons
specific to that content, such as lacking
the right to alter the content or needing
to maintain the content as it existed at
a particular time due to pending
litigation. The Department believes this
approach is appropriate because it
134 See W3C®, Understanding WCAG 2.0 (Oct. 7,
2016), https://www.w3.org/TR/UNDERSTANDINGWCAG20/conformance.html#uc-conforming-altversions-head [https://perma.cc/DV5L-RJUG].
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ensures that, whenever possible, people
with disabilities have access to the same
web content that is available to people
without disabilities. However, proposed
§ 35.202 does not prohibit public
entities from providing alternate
versions of web pages in addition to
their accessible main web page to
possibly provide users with certain
types of disabilities a better experience.
In addition to allowing conforming
alternate versions to be used where it is
not possible to make websites and web
content directly accessible due to
technical or legal limitations, this
proposed rulemaking also incorporates
general limitations if public entities can
demonstrate that full compliance with
proposed § 35.200 would result in a
fundamental alteration in the nature of
a service, program, or activity or in
undue financial and administrative
burdens.135 If an action would result in
such an alteration or such burdens, a
public entity shall take any other action
that would not result in such an
alteration or such burdens but would
nevertheless ensure that individuals
with disabilities receive the benefits or
services provided by the public entity to
the maximum extent possible.136 One
way in which public entities could
fulfill their obligation to provide the
benefits or services to the maximum
extent possible, in the rare instance
when they can demonstrate that full
compliance would result in a
fundamental alteration or undue
burden, is through creating conforming
alternate versions.
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 49: Would allowing
conforming alternate versions due to
technical or legal limitations result in
individuals with disabilities receiving
unequal access to a public entity’s
services, programs, and activities?
§ 35.203
Equivalent Facilitation
Proposed § 35.203 provides that
nothing prevents a public entity from
using designs, methods, or techniques
as alternatives to those prescribed in the
proposed regulation, provided that such
alternatives result in substantially
equivalent or greater accessibility and
usability. The 1991 and 2010 ADA
Standards for Accessible Design both
contain an equivalent facilitation
135 See
136 See
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provision.137 However, for purposes of
proposed subpart H, the reason for
allowing for equivalent facilitation is to
encourage flexibility and innovation by
public entities while still ensuring equal
or greater access to web and mobile
content. Especially in light of the rapid
pace at which technology changes, this
proposed provision is intended to
clarify that public entities can use
methods or techniques that provide
equal or greater accessibility than this
proposed rule would require. For
example, if a public entity wanted to
conform its website or mobile app to
WCAG 2.1 Level AAA—which includes
all the Level AA requirements plus
some additional requirements for even
greater accessibility—this provision
makes clear that the public entity would
be in compliance with this rule. A
public entity could also choose to
comply with this rule by conforming its
website to WCAG 2.2 or WCAG 3.0, so
long as the version and conformance
level of those guidelines that the entity
selects includes all of the WCAG 2.1
Level AA requirements. The Department
believes that this proposed provision
offers needed flexibility for entities to
provide usability and accessibility that
meet or exceed what this rule would
require as technology continues to
develop. The responsibility for
demonstrating equivalent facilitation
rests with the public entity.
§ 35.204 Duties
Section 35.204 sets forth the general
limitations on the obligations under
subpart H. Proposed § 35.204 provides
that in meeting the accessibility
requirements set out in this subpart, a
public entity is not required to take any
action that would result in a
fundamental alteration in the nature of
a service, program, or activity or in
undue financial and administrative
burdens. These proposed limitations on
a public entity’s duty to comply with
the proposed regulatory provisions
mirror the fundamental alteration and
undue burden compliance limitations
currently provided in the title II
regulation in 28 CFR 35.150(a)(3)
(program accessibility) and 35.164
(effective communication), and the
fundamental alteration compliance
limitation currently provided in the title
II regulation in 28 CFR 35.130(b)(7)
(reasonable modifications in policies,
practices, or procedures). These
limitations are thus familiar to public
entities.
Generally, the Department believes it
would not constitute a fundamental
137 See 28 CFR pt. 36, app. D, at 1000 (1991); 36
CFR pt. 1191, app. B at 329.
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alteration of a public entity’s services,
programs, or activities to modify web
content or mobile apps to make them
accessible, though the Department seeks
the public’s input on this view.
Moreover, like the undue burden and
fundamental alteration limitations in
the title II regulation referenced above,
proposed § 35.204 does not relieve a
public entity of all obligations to
individuals with disabilities. Although a
public entity under this proposed rule is
not required to take actions that would
result in a fundamental alteration in the
nature of a service, program, or activity
or in undue financial and administrative
burdens, it nevertheless must comply
with the requirements of this subpart to
the extent that compliance does not
result in a fundamental alteration or
undue financial and administrative
burdens. For instance, a public entity
might determine that full WCAG 2.1
Level AA compliance would result in a
fundamental alteration or undue
financial and administrative burdens.
However, this same public entity must
then determine whether it can take any
other action that would not result in
such an alteration or such burdens, but
would nevertheless ensure that
individuals with disabilities receive the
benefits or services provided by the
public entity to the maximum extent
possible. To the extent that the public
entity can, it must do so. This may
include the public entity’s bringing its
web content into compliance with some
of the WCAG 2.1 Level A or Level AA
success criteria.
It is the Department’s view that most
entities that choose to assert a claim that
full compliance with the proposed web
or mobile app accessibility requirements
would result in undue financial and
administrative burdens will be able to
attain at least partial compliance. The
Department believes that there are many
steps a public entity can take to comply
with WCAG 2.1 that should not result
in undue financial and administrative
burdens, depending on the particular
circumstances.
In determining whether an action
would result in undue financial and
administrative burdens, all of a public
entity’s resources available for use in
the funding and operation of the service,
program, or activity should be
considered. The burden of proving that
compliance with proposed § 35.204
would fundamentally alter the nature of
a service, program, or activity, or would
result in undue financial and
administrative burdens, rests with the
public entity. As the Department has
consistently maintained since
promulgation of the title II regulation in
1991, the decision that compliance
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would result in a fundamental alteration
or impose undue burdens must be made
by the head of the public entity or their
designee, and must be memorialized
with a written statement of the reasons
for reaching that conclusion.138 The
Department has always recognized the
difficulty public entities have in
identifying the official responsible for
this determination, given the variety of
organizational structures within public
entities and their components.139 The
Department has made clear that ‘‘the
determination must be made by a high
level official, no lower than a
Department head, having budgetary
authority and responsibility for making
spending decisions.’’ 140
Where a public entity cannot bring
web content or a mobile app into
compliance without a fundamental
alteration or an undue burden, it must
take other steps to ensure that
individuals with disabilities receive the
benefits or services provided by the
public entity to the maximum extent
possible.
Once a public entity has complied
with the web or mobile app accessibility
requirements set forth in subpart H, it is
not required by title II of the ADA to
make further modifications to its web or
mobile app content to accommodate an
individual who is still unable to access,
or does not have equal access to, the
web or mobile app content due to their
disability. However, it is important to
note that compliance with this ADA
title II rule will not alleviate title II
entities of their distinct employmentrelated obligations under title I of the
ADA. The Department realizes that the
proposed rule is not going to meet the
needs of and provide access to every
individual with a disability, but believes
that setting a consistent and enforceable
web accessibility standard that meets
the needs of a majority of individuals
with disabilities will provide greater
predictability for public entities, as well
as added assurance of accessibility for
individuals with disabilities.
Fully complying with the web and
mobile app accessibility requirements
set forth in subpart H means that a
public entity is not required by title II
of the ADA to make any further
modifications to its web or mobile app
content. This is consistent with the
approach the Department has taken in
the context of physical accessibility,
where a public entity is not required to
exceed the applicable design
requirements of the ADA Standards if
certain wheelchairs or other power-
driven mobility devices exceed those
requirements.141 However, if an
individual with a disability, on the basis
of disability, cannot access or does not
have equal access to a service, program,
or activity through a public entity’s web
content or mobile app that conforms to
WCAG 2.1 Level AA, the public entity
still has an obligation to provide the
individual an alternative method of
access to that service, program, or
activity unless the public entity can
demonstrate that alternative methods of
access would result in a fundamental
alteration in the nature of a service,
program, or activity or in undue
financial and administrative burdens.142
Thus, just because an entity is in full
compliance with this rule’s web or
mobile app accessibility standard does
not mean it has met all of its obligations
under the ADA or other applicable laws.
Even though no further changes to a
public entity’s web or mobile app
content are required by title II of the
ADA, a public entity must still take
other steps necessary to ensure that an
individual with a disability who, on the
basis of disability, is unable to access or
does not have equal access to the
service, program, or activity provided by
the public entity through its accessible
web content or mobile app can obtain
access through other effective means.
The entity must still satisfy its general
obligations to provide effective
communication, reasonable
modifications, and an equal opportunity
to participate in or benefit from the
entity’s services using methods other
than its website or mobile app.143 Of
course, an entity may also choose to
further modify its web or mobile app
content to make that content more
accessible or usable than this subpart
requires.
The public entity must determine on
a case-by-case basis how best to
accommodate those individuals who
cannot access the service, program, or
activity provided through the public
entity’s fully compliant web content or
mobile app. A public entity should refer
to 28 CFR 35.160 (effective
communication) to determine its
obligations to provide individuals with
disabilities with the appropriate
auxiliary aids and services necessary to
afford them an equal opportunity to
participate in, and enjoy the benefits of,
the public entity’s service, program, or
activity. A public entity should refer to
28 CFR 35.130(b)(7) (reasonable
modifications) to determine its
141 See
138 28
CFR 35.150(a)(3), 35.164.
139 28 CFR pt. 35, app. B, at 708 (2022).
140 Id.
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28 CFR pt. 35, app. A, at 626 (2022).
e.g., 28 CFR 35.130(b)(1)(ii), (b)(7),
142 See,
35.160.
143 See 28 CFR 35.130(b)(1)(ii), (b)(7), 35.160.
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obligations to provide reasonable
modifications in policies, practices, or
procedures to avoid discrimination on
the basis of disability. It is helpful to
provide individuals with disabilities
with information about how to obtain
the modifications or auxiliary aids and
services they may need. The Department
therefore strongly recommends that the
public entity provide notice to the
public on how an individual who
cannot use the web content or mobile
app because of a disability can request
other means of effective communication
or reasonable modifications in order to
access the public entity’s services,
programs, or activities that are being
provided through the web content or
mobile app. The Department also
strongly recommends that the public
entity provide an accessibility statement
that tells the public how to bring web
or mobile app accessibility problems to
the public entity’s attention, and that
public entities consider developing and
implementing a procedure for reviewing
and addressing any such issues raised.
For example, a public entity is
encouraged to provide an email address,
accessible link, accessible web page, or
other accessible means of contacting the
public entity to provide information
about issues individuals with
disabilities may encounter accessing
web or mobile app content or to request
assistance.144 Providing this information
will help public entities to ensure that
they are satisfying their obligations to
provide equal access, effective
communication, and reasonable
modifications.
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V. Additional Issues for Public
Comment
A. Measuring Compliance
As discussed above, the Department is
proposing to adopt specific standards
for public entities to use to ensure that
their web content and mobile apps are
accessible to individuals with
disabilities. Proposed § 35.200(a)
requires public entities to ensure that
any web content and mobile apps that
they make available to members of the
public or use to offer services, programs,
and activities to members of the public
are readily accessible to and usable by
individuals with disabilities. Proposed
§ 35.200(b) sets forth the specific
technical requirements in WCAG 2.1
Level AA with which public entities
must comply unless compliance results
in a fundamental alteration in the nature
of a service, program, or activity or
undue financial and administrative
burdens. Now that the Department is
proposing requiring public entities to
comply with a specific technical
standard for web accessibility, it seeks
to craft a framework for determining
when an entity has complied with that
standard. The framework will ensure
the full and equal access to which
individuals with disabilities are
entitled, while setting forth obligations
that will be achievable for public
entities.
1. Existing Approaches to Defining and
Measuring Compliance
a. Federal and International Approaches
The Department is aware of two
Federal agencies that have implemented
requirements for complying with
technical standards for web
accessibility. Each agency has taken a
different approach to defining what it
means to comply with its regulation. As
discussed above, for Federal agency
websites covered by section 508, the
Access Board requires conformance
with WCAG 2.0 Level A and Level
AA.145 In contrast, in its regulation on
accessibility of air carrier websites, the
Department of Transportation took a
tiered approach that did not require all
web content to conform to a technical
standard before the first compliance
date.146 Instead, the Department of
Transportation required those web
pages associated with ‘‘core air travel
services and information’’ to conform to
a technical standard first, while other
types of content could come into
conformance later.147 The Department
of Transportation also required air
carriers to consult with members of the
disability community to test, and obtain
feedback about, the usability of their
websites.148
International laws appear to have
taken different approaches to evaluating
compliance, though it is unclear which,
if any, would be feasible within the
system of government in the United
States and the Department’s authority
under the ADA. For example, the
European Union has crafted a detailed
monitoring methodology that specifies
protocols for member States to sample,
test, and report on accessibility of
government websites and mobile
apps.149 Canada has established a
reporting framework for the specific
145 36
146 14
CFR 1194.1; id. part 1194, app. A (E205.4).
CFR 382.43(c)(1).
147 Id.
148 Id.
W3C®, Developing an Accessibility
Statement (Mar. 11, 2021), https://www.w3.org/
WAI/planning/statements/ [https://perma.cc/
85WU-JTJ6].
144 See
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382.43(c)(2).
Implementing Decision (EU)
2018/1524 (Dec. 10, 2018), https://eurlex.europa.eu/eli/dec_impl/2018/1524/oj [https://
perma.cc/5M7B-SVP9].
149 Commission
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Federal departments covered by its web
accessibility standard and may impose a
range of corrective actions, depending
on how conformant a website is with a
technical standard, measured as a
percentage.150 New Zealand has
developed a self-assessment
methodology for government agencies
that combines automated and manual
testing and requires agencies to conduct
a detailed risk assessment and develop
a plan for addressing nonconformance
over time.151 In the United Kingdom, a
government agency audits a sample of
public sector websites and mobile apps
(i.e., websites and mobile apps of central
government, local government
organizations, some charities, and some
other non-governmental organizations)
every year, using both manual and
automated testing, following a priority
order for auditing that is based on the
‘‘social impact (for example size of
population covered, or site or service
usage) and complaints received.’’ 152
The auditing agency then sends a report
to the public entity, requires the entity
to fix accessibility issues within 12
weeks, and refers the matter to an
enforcement agency after that time
frame has passed and the website or app
has been retested.153
b. State Governments’ Approaches
Within the United States, different
public entities have taken different
approaches to measuring compliance
with a technical standard under State
laws. For example, Florida,154
150 Government of Canada, Standard on Web
Accessibility (Aug. 1, 2011), https://www.tbssct.gc.ca/pol/doc-eng.aspx?id=23601§ion=html
[https://perma.cc/ZU5D-CPQ7].
151 New Zealand Government, 2017 Web
Standards Self-Assessments Report (July 2018),
https://www.digital.govt.nz/dmsdocument/97-2017web-standards-self-assessments-report/html
[https://perma.cc/3TQ3-2L9L]; New Zealand
Government, Web Standards Risk Assessment (Oct.
19, 2020), https://www.digital.govt.nz/standardsand-guidance/nz-government-web-standards/riskassessment/ [https://perma.cc/N3GJ-VK7X]; New
Zealand Government, About the Web Accessibility
Standard (Mar. 3, 2022), https://
www.digital.govt.nz/standards-and-guidance/nzgovernment-web-standards/web-accessibilitystandard-1-1/about-2/ [https://perma.cc/GPR4QJ29].
152 United Kingdom, Understanding accessibility
requirements for public sector bodies (Aug. 22,
2022), https://www.gov.uk/guidance/accessibilityrequirements-for-public-sector-websites-and-apps;
United Kingdom, Public sector website and mobile
application accessibility monitoring (Nov. 1, 2022),
https://www.gov.uk/guidance/public-sector-websiteand-mobile-application-accessibility-monitoring. A
Perma archive link was unavailable for these
citations.
153 United Kingdom, Public sector website and
mobile application accessibility monitoring (Dec. 6,
2021), https://www.gov.uk/guidance/public-sectorwebsite-and-mobile-application-accessibilitymonitoring. A Perma archive link was unavailable
for this citation.
154 Fla. Stat. 282.603 (2023).
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Illinois,155 and Massachusetts 156 seem
to simply require conformance, without
specifying how compliance will be
measured or how entities can
demonstrate compliance with this
requirement. California requires the
director of each State agency to certify
compliance with technical standards
and post a certification form on the
agency’s website.157 California also
provides assessment checklists for its
agencies and guidelines for sampling
and testing, including recommending
that agencies use analytics data to
conduct thorough testing on frequently
used pages.158 Minnesota requires
compliance with a technical standard,
provides accessibility courses and other
resources, and notes the importance of
both automated and manual testing; it
also states that ‘‘[f]ew systems are
completely accessible,’’ and that ‘‘[t]he
goal is continuous improvement.’’ 159
Texas law requires State agencies to,
among other steps, comply with a
technical standard, conduct tests with
one or more accessibility validation
tools, establish an accessibility policy
that includes criteria for compliance
monitoring and a plan for remediation
of noncompliant items, and establish
goals and progress measurements for
accessibility.160 Texas has also
developed an automated accessibility
scanning tool and offers courses on web
accessibility.161
c. Other Approaches to Defining and
Measuring Compliance
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The Department understands that
businesses open to the public, which are
subject to title III of the ADA, have, like
public entities, taken different
approaches to web accessibility. These
approaches may include collecting
155 30 Ill. Comp. Stat. 587 (2023); Illinois
Information Technology Accessibility Act (Mar. 18,
2022), https://www.dhs.state.il.us/
page.aspx?item=32765. A Perma archive link was
unavailable for the second citation.
156 Commonwealth of Massachusetts, Enterprise
Information Technology Accessibility Policy (July
28, 2021), https://www.mass.gov/policy-advisory/
enterprise-information-technology-accessibilitypolicy [https://perma.cc/8293-HXUA].
157 Cal. Gov’t Code 11546.7.
158 Department of Rehabilitation, website
Accessibility Requirements and Assessment
Checklists, https://www.dor.ca.gov/Home/
WebRequirementsAndAssessmentChecklists
[https://perma.cc/JAS9-Q343].
159 Minnesota IT Services, Guidelines for
Accessibility and Usability of Information
Technology Standard (Apr. 17, 2018), https://
mn.gov/mnit/assets/accessibility-guidelines-2018_
tcm38-336072.pdf [https://perma.cc/Q9P5-NGMT].
160 1 Tex. Admin. Code 206.50, 213.21.
161 Texas Department of Information Resources,
EIR Accessibility Tools & Training, https://
dir.texas.gov/electronic-information-resources-eiraccessibility/eir-accessibility-tools-training [https://
perma.cc/A5LC-ZTST].
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feedback from users with disabilities
about inaccessible websites or mobile
apps or relying on external consultants
to conduct periodic testing and
remediation. Other businesses may have
developed detailed internal policies and
practices that require comprehensive
automated and manual testing,
including testing by people with
disabilities, on a regular basis
throughout their digital content
development and quality control
processes. Some businesses have also
developed policies that include
timelines for remediation of any
accessibility barriers; these policies may
establish different remediation time
frames for different types of barriers.
2. Challenges of Defining and Measuring
Compliance With This Rule
The Department recognizes that it
must move forward with care, weighing
the interests of all stakeholders, so that
as accessibility for individuals with
disabilities is improved, innovation in
the use of the web or mobile apps by
public entities is not hampered. The
Department appreciates that the
dynamic nature of web content and
mobile apps presents unique challenges
in measuring compliance. For example,
as discussed further below, this type of
content can change frequently and
assessment of conformance can be
complex or subjective. Therefore, the
Department is seeking public input on
issues concerning how compliance
should be measured, which the
Department plans to address in its final
rule.
The Department is concerned that the
type of compliance measures it
currently uses in the ADA, such as the
one used to assess compliance with the
ADA Standards, may not be practical in
the web or mobile app context. Public
entities must ensure that newly
designed and constructed State and
local government facilities are in full
compliance with the scoping and
technical specifications in the ADA
Standards unless full compliance is
structurally impracticable.162 The ADA
Standards require newly constructed
State or local government buildings to
be 100 percent compliant at all times
with the applicable provisions, subject
to limited compliance limitations.
However, unlike buildings, public
entities’ websites and mobile apps are
dynamic and interconnected, and can
contain a large amount of complex,
highly technical, varied, and frequently
changing content. Accordingly, the
Department is concerned that a
compliance measure similar to the one
162 28
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used in the other area where it has
adopted specific technical standards
may not work well for web content or
mobile apps.
If web content or mobile apps are
updated frequently, full conformance
with a technical standard after the
compliance date may be difficult or
impossible to maintain at all times. The
Department is aware that even when a
public entity understands its
accessibility obligations, is committed
to maintaining an accessible website,
and intends to conform with WCAG 2.1
Level AA, the dynamic and complex
nature of web content is such that full
conformance may not always be
achieved successfully. The Department
is seeking public comment about
whether a different framework for
measuring compliance may be needed
to address the difficulty that public
entities may have in achieving 100
percent conformance with a technical
standard, 100 percent of the time.
Though title II does not prohibit isolated
or temporary interruptions in service or
access due to maintenance or repairs,163
it is possible that websites or mobile
apps could be undergoing maintenance
or repair almost constantly, such that
this compliance limitation is not readily
transferrable to web or mobile app
accessibility.
The Department also appreciates the
serious impact that a failure to comply
with WCAG 2.1 Level AA can have on
people with disabilities. For example, if
a person who has limited manual
dexterity and uses keyboard navigation
is trying to apply for public benefits,
and the ‘‘submit’’ button on the form is
not operable using the keyboard, that
person will not be able to apply
independently for benefits online, even
if the rest of the website is fully
accessible. A person who is blind and
uses a screen reader may not be able to
make an appointment at a county health
clinic if an element of the clinic’s
appointment calendar is not coded
properly. Nearly all of a public entity’s
web content could conform with the
WCAG 2.1 Level AA success criteria,
but one instance of nonconformance
could still prevent someone from
accessing services on the website.
People with disabilities must be able to
access the many important government
services, programs, and activities that
are offered through web content and
mobile apps on equal terms, without
sacrificing their privacy, dignity, or
independence. The Department’s
concern about the many barriers to full
and equal participation in civic life that
inaccessible web content can pose for
163 See
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people with disabilities is an important
motivating factor behind the
Department’s decision to propose
requiring compliance with a technical
standard. By clarifying what compliance
with a technical standard means, the
Department seeks to enhance the impact
this requirement will have on the daily
lives of people with disabilities by
helping public entities to understand
their obligations, thereby increasing
compliance.
An additional challenge to specifying
what it means to comply with a
technical standard for web accessibility
is that, unlike the physical accessibility
required by the ADA Standards, which
can be objectively and reliably assessed
with one set of tools, different
automated testing tools may provide
different assessments of the same
website’s accessibility. For example,
using different web browsers with
different testing tools or assistive
technology can yield different results.
Assessments of a website’s or mobile
app’s accessibility may change
frequently over time as the web content
or mobile app changes. Automated
testing tools also may report purported
accessibility errors inaccurately. For
example, an automated testing tool may
report an error related to insufficient
color contrast because the tool has not
correctly detected the foreground and
background colors. These tools will also
provide an incomplete assessment of a
website’s accessibility because
automated tools cannot assess
conformance with certain WCAG
success criteria, such as whether color
is being used as the only visual means
of conveying information or whether all
functionality of the content is operable
through a keyboard interface.164
Additional, manual testing is required
to conduct a full assessment of
conformance, which can take time and
often relies on sampling. Furthermore,
the Department understands that a
person’s experiences of web or mobile
app accessibility may vary depending
on what assistive technology or other
types of hardware or software they are
using. Accordingly, the Department is
considering what the appropriate
measure for determining compliance
with the web and mobile app
accessibility requirements should be.
The Department believes that a more
nuanced definition of compliance might
be appropriate because some instances
164 See W3C®, Web Content Accessibility
Guidelines 2.1, Use of Color (June 5, 2018), https://
www.w3.org/TR/WCAG21/#use-of-color [https://
perma.cc/R3VC-WZMY]; W3C®, Web Content
Accessibility Guidelines 2.1, Keyboard Accessible,
https://www.w3.org/TR/WCAG21/#keyboardaccessible [https://perma.cc/5A3C-9KK2].
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of nonconformance with WCAG success
criteria may not impede access to the
services, programs, or activities offered
through a public entity’s web content or
mobile app. For example, even if a
county park fails to provide alt text on
an image of the scenic views at the park,
a person who is using a screen reader
could still reserve a picnic area
successfully, so long as the website also
includes text about any amenities
shown in the photo. If the contrast
between the text and background colors
used for permit application instructions
deviates by a few hundredths from the
color contrast ratio required by WCAG
2.1 Level AA, most people with low
vision will likely still be able to access
those instructions without difficulty.
However, in either of these examples,
the web content would be out of
conformance with WCAG 2.1 Level AA.
If the Department does not establish a
more detailed compliance framework, a
person with a disability would have a
valid basis for filing a complaint with
the Department, other designated
Federal agencies, or in Federal court
about either scenario. This could expose
public entities to extensive litigation
risk, while potentially generating more
complaints than the Department, other
designated Federal agencies, or the
courts have capacity to resolve, and
without improving access for people
with disabilities.
Some may argue that the same risk of
allegedly unjustified enforcement action
also exists for some provisions of the
ADA Standards. Yet, the Department
believes that, for all of the reasons
described above (including the
frequently changing nature of web
content, the technical difficulties
inherent in ensuring compliance, and
the potential for differing assessments of
compliance), a public entity’s web
content and mobile apps may be more
likely to be out of full compliance with
WCAG 2.1 Level AA than its buildings
are to be out of compliance with the
ADA Standards. Sustained, perfect
compliance with WCAG 2.1 Level AA
may be more difficult to achieve on a
website that is updated several times a
week and includes thousands of pages
of content than compliance with the
ADA Standards is in a town hall that is
renovated once a decade. The
Department also believes that slight
deviations from WCAG 2.1 Level AA
may be more likely to occur without
having a detrimental impact on access
than is the case with the ADA
Standards. Additionally, it may be
easier for an aggrieved individual to
find evidence of noncompliance with
WCAG 2.1 Level AA than
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noncompliance with the ADA
Standards, given the availability of
many free testing tools and the fact that
public entities’ websites can be accessed
from almost anywhere. The Department
welcomes public comment on the
accuracy of all of these assumptions, as
well as about whether it is appropriate
to consider the impact of
nonconformance with a technical
standard when evaluating compliance
with the proposed rule.
3. Possible Approaches to Defining and
Measuring Compliance With This Rule
The Department is considering a
range of different approaches to
measuring compliance with this
proposed rule. First, the Department is
considering whether to require a
numerical percentage of conformance
with a technical standard, which could
be 100 percent or less. This percentage
could be a simple numerical calculation
based on the number of instances of
nonconformance across a website or
mobile app, or the percentage could be
calculated by weighting different
instances of nonconformance
differently. Weighting could be based on
factors like the importance of the
content; the frequency with which the
content is accessed; the severity of the
impact of nonconformance on a person’s
ability to access the services, programs,
or activities provided on the website; or
some other formula. This idea of
weighting would not be unprecedented
in the context of the title II regulatory
scheme because, in some circumstances,
the existing title II regulation requires
priority to be given to alterations that
will provide the greatest access.165 As
described above, the Department of
Transportation’s web accessibility
regulation has, at times, also prioritized
the accessibility of certain content.
However, the Department does not
believe that a percentage-based
approach would achieve the purposes of
this rule or be feasible to implement
because it may not ensure access and
will be difficult to measure. First, as
discussed previously, a percentagebased approach seems unlikely to
ensure access for people with
disabilities. Even if the Department
were to require that 95 percent or 99
percent of an entity’s web content or
mobile apps conform with WCAG 2.1
(or that all content or apps conform to
95 percent or 99 percent of the WCAG
2.1 success criteria), the relatively small
percentage that does not conform could
still block an individual with a
disability from accessing a service,
program, or activity. For example, a
165 See
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single critical accessibility error could
prevent an individual with a disability
from submitting their application for a
business license.
A percentage-based standard is also
likely to be difficult to implement. If the
Department adopts a specific formula
for calculating whether a certain
percentage-based compliance threshold
has been met, it could be challenging for
members of the public and regulated
entities to determine whether web
content and mobile apps comply with
this rule. Calculations required to
evaluate compliance could become
complex, particularly if the Department
were to adopt a weighted or tiered
approach that requires certain types of
core content to be fully accessible, while
allowing a lower percentage of
accessibility for less important or less
frequently accessed content. People
with disabilities who are unable to use
inaccessible parts of a website or mobile
app may have particular difficulty
calculating a compliance percentage,
because it could be difficult, if not
impossible, for them to correctly
evaluate the percentage of a website or
mobile app that is inaccessible if they
do not have full access to the entire
website or app. For these reasons, the
Department currently is not inclined to
adopt a percentage-based approach to
measuring compliance, though we
welcome public comment on ways that
such an approach could be
implemented successfully.
Another possible approach might be
to limit an entity’s compliance
obligations where nonconformance with
a technical standard does not impact a
person’s ability to have equal access to
services, programs, or activities offered
on a public entity’s website or mobile
app. For example, the Department could
specify that nonconformance with
WCAG 2.1 Level AA does not constitute
noncompliance with this part if that
nonconformance does not prevent a
person with a disability from accessing
or acquiring the same information,
engaging in the same interactions,
performing the same transactions, and
enjoying the same services, programs,
and activities that the public entity
offers visitors to its website without
relevant disabilities, with substantially
equivalent ease of use. This approach
would provide equal access to people
with disabilities, while limiting the
conformance obligations of public
entities where technical
nonconformance with WCAG 2.1 Level
AA does not affect access. If a public
entity’s compliance were to be
challenged, in order to prevail, the
entity would need to demonstrate that,
even though it was technically out of
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conformance with one or more of the
WCAG 2.1 Level AA success criteria,
the nonconformance had such a
minimal impact that this provision
applies, and the entity has therefore met
its obligations under the ADA despite
nonconformance with WCAG 2.1.
The Department believes that this
approach would have a limited impact
on the experience of people with
disabilities who are trying to use web
content or mobile apps for two reasons.
First, by its own terms, the provision
would require a public entity to
demonstrate that any nonconformance
did not have a meaningful effect.
Second, it is possible that few public
entities will choose to rely on such a
provision, because they would prefer to
avoid assuming the risk inherent in this
approach to compliance. A public entity
may find it easier to conform to WCAG
2.1 Level AA in full so that it can
depend on that clearly defined standard,
instead of attempting to determine
whether any nonconformance could be
excused under this provision.
Nonetheless, the Department believes
some public entities may find such a
provision useful because it would
prevent them from facing the prospect
of failing to comply with the ADA based
on a minor technical error. The
Department seeks public comment on
all of these assumptions.
The Department also believes such an
approach may be logically consistent
with the general nondiscrimination
principles of section 508, which require
comparable access to information and
data,166 and of the ADA’s implementing
regulation, which require an equal
opportunity to participate in and benefit
from services.167 The Department has
heard support from the public for
ensuring that people with disabilities
have equal access to the same
information and services as people
without disabilities, with equivalent
ease of use. The Department is therefore
evaluating ways that it can incorporate
this crucial principle into a final rule,
while simultaneously ensuring that the
compliance obligations imposed by the
final rule will be attainable for public
entities in practice.
Another approach the Department is
considering is whether an entity could
demonstrate compliance with this part
by affirmatively establishing and
following certain robust policies and
practices for accessibility feedback,
testing, and remediation. The
Department has not made any
determinations about what policies and
practices, if any, would be sufficient to
166 See
167 See
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demonstrate compliance, and the
Department is seeking public comment
on this issue. However, for illustrative
purposes only, and to enable the public
to better understand the general
approach the Department is considering,
assume that a public entity proactively
tested its existing web and mobile app
content for conformance with WCAG
2.1 Level AA using automated testing on
a regular basis (e.g., every 30 days),
conducted user testing on a regular basis
(e.g., every 90 days), and tested any new
web and mobile app content for
conformance with WCAG 2.1 Level AA
before that content was posted on its
website or added to its mobile app. This
public entity also remediated any
nonconformance found in its existing
web and mobile app content soon after
the test (e.g., within two weeks). An
entity that took these (or similar) steps
on its own initiative could be deemed
to have complied with its obligations
under the ADA, even if a person with
a disability encountered an access
barrier or a particular automated testing
report indicated noncompliance with
WCAG 2.1 Level AA. The public entity
would be able to rely on its existing,
effectively working web and mobile app
content accessibility testing and
remediation program to demonstrate
compliance with the ADA. In a final
rule, the Department could specify that
nonconformance with WCAG 2.1 Level
AA does not constitute noncompliance
with this part if a public entity has
established certain policies for testing
the accessibility of web and mobile app
content and remediating inaccessible
content, and the entity can demonstrate
that it follows those policies.
This approach would enable a public
entity to remain in compliance with the
ADA even if its website or mobile app
is not in perfect conformance with
WCAG 2.1 Level AA at all times, if the
entity is addressing any
nonconformance within a reasonable
period of time. A new policy that a
public entity established in response to
a particular complaint, or a policy that
an entity could not demonstrate that it
has a practice of following, would not
satisfy such a provision. The
Department could craft requirements for
such policies in many different ways,
including by requiring more prompt
remediation for nonconformance with a
technical standard that has a more
serious impact on access to services,
programs, and activities; providing more
detail about what testing is sufficient
(e.g., both automated testing and manual
testing, testing by users with certain
types of disabilities); setting shorter or
longer time frames for how often testing
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should occur; setting shorter or longer
time frames for remediation; or
establishing any number of additional
criteria.
The Department is also considering
whether an entity should be permitted
to demonstrate compliance with this
rule by showing organizational
maturity—that the organization has a
sufficiently robust program for web and
mobile app accessibility. Organizational
maturity models provide a framework
for measuring how developed an
organization’s programs, policies, and
practices are—either as a whole or on
certain topics (e.g., cybersecurity, user
experience, project management,
accessibility). The authors of one
accessibility maturity model observe
that it can be difficult to know what a
successful digital accessibility program
looks like, and they suggest that
maturity models can help assess the
proficiency of accessibility programs
and a program’s capacity to succeed.168
Whereas accessibility conformance
testing evaluates the accessibility of a
particular website or mobile app at a
specific point in time, organizational
maturity evaluates whether an entity
has developed the infrastructure needed
to produce accessible web content and
mobile apps consistently.169 For
example, some outcomes that an
organization at the highest level of
accessibility maturity might
demonstrate include integrating
accessibility criteria into all
procurement and contracting decisions,
leveraging employees with disabilities
to audit accessibility, and periodically
evaluating the workforce to identify
gaps in accessibility knowledge and
training.170
Existing maturity models for
accessibility establish several different
categories of accessibility, which are
called domains or dimensions, then
assess which maturity level an
organization is at for each category.171
168 See Level Access, The Digital Accessibility
Maturity Model: Introduction to DAMM, https://
www.levelaccess.com/the-digital-accessibilitymaturity-model-introduction-to-damm/ [https://
perma.cc/6K38-FJZU].
169 See W3C®, W3C Accessibility Maturity Model,
About the W3C Accessibility Maturity Model (Sept.
6, 2022), https://www.w3.org/TR/maturity-model/
[https://perma.cc/NB29-BDRN].
170 See W3C®, W3C Accessibility Maturity Model,
Ratings for Evaluation (Sept. 6, 2022), https://
www.w3.org/TR/maturity-model/ [https://perma.cc/
W7DA-HM9Z].
171 See, e.g., W3C®, W3C Accessibility Maturity
Model, Maturity Model Structure (Sept. 6, 2022),
https://www.w3.org/TR/maturity-model/ [https://
perma.cc/NB29-BDRN]; Level Access, The Digital
Accessibility Maturity Model: Core Dimensions,
https://www.levelaccess.com/the-digitalaccessibility-maturity-model-core-dimensions/
[https://perma.cc/C6ZC-K9ZF]; Level Access, The
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For example, the Office of
Management and Budget requires
Federal agencies to assess the maturity
of their section 508 programs in the
following domains: acquisition, agency
technology life cycles, testing and
validation, complaint management, and
training.172 At the lowest level of
maturity in each domain, no formal
policies, processes, or procedures have
been defined; at the highest level of
maturity, effectiveness in the domain is
validated, measured, and tracked.173
As another example, according to a
different digital accessibility maturity
model, if an organization has welltrained, qualified individuals test all of
its technology, and has individuals with
relevant disabilities conduct testing at
multiple stages in the development
lifecycle, the organization would meet
some of the criteria to be rated at the
fourth level out of five maturity levels
in one of ten dimensions—testing and
validation.174 The Department seeks
public comment on whether the
maturity levels and criteria established
in existing organizational maturity
models for digital accessibility would be
feasible for State and local government
entities to meet.
As with the policy-based approach
discussed above, a focus on
organizational maturity would enable a
public entity to demonstrate compliance
with the ADA even if the entity’s
website or mobile app is not in perfect
conformance with WCAG 2.1 Level AA
at all times, so long as the entity can
demonstrate sufficient maturity of its
digital accessibility program, which
would indicate its ability to quickly
remedy any issues of nonconformance
identified. The Department could define
requirements for organizational maturity
in many different ways, including by
adopting an existing organizational
maturity model in full, otherwise
relying on existing organizational
maturity models, establishing different
categories of organizational maturity
(e.g., training, testing, feedback), or
establishing different criteria for
measuring organizational maturity
levels in each category. The Department
Digital Accessibility Maturity Model: Maturity
Levels, https://www.levelaccess.com/the-digitalaccessibility-maturity-model-maturity-levels/
[https://perma.cc/25HH-SLYF].
172 U.S. Gen. Servs. Admin., Assess your Section
508 program maturity, https://www.section508.gov/
tools/playbooks/technology-accessibility-playbookintro/play02/ [https://perma.cc/89FM-SJ3H].
173 Id.
174 Level Access, The Digital Accessibility
Maturity Model: Dimension #7—Testing and
Validation, https://www.levelaccess.com/thedigital-accessibility-maturity-model-dimension-7testing-and-validation/ [https://perma.cc/VU933NH4].
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could also require an entity to have
maintained a certain level of
organizational maturity across a certain
number of categories for a specified
period of time or require an entity to
have improved its organizational
maturity by a certain amount in a
specified period of time.
The Department has several concerns
about whether allowing organizations to
demonstrate compliance with this rule
through their organizational maturity
will achieve the goals of this
rulemaking. First, this approach may
not provide sufficient accessibility for
individuals with disabilities. It is not
clear that when State and local
government entities make their
accessibility programs more robust, that
will necessarily result in websites and
mobile apps that consistently conform
to WCAG 2.1 Level AA. If the
Department permits a lower level of
organizational maturity (e.g., level four
out of five) or requires the highest level
of maturity in only some categories (e.g.,
level five in training), this challenge
may be particularly acute. Second, this
approach may not provide sufficient
predictability or certainty for public
entities. Organizational maturity criteria
may prove subjective and difficult to
measure, so disputes about an entity’s
assessments of its own maturity may
arise. Third, an organizational maturity
model may be too complex for the
Department to define or for public
entities to implement. Some existing
models include as many as ten
categories of accessibility, with five
levels of maturity, and more than ten
criteria for some levels.175 Some of these
criteria are also highly technical and
may not be feasible for some public
entities to understand or satisfy (e.g.,
testing artifacts are actively updated and
disseminated based on lessons learned
from each group; accessibility testing
artifacts required by teams are actively
updated and maintained for form and
ease of use).176 Of course, a public
entity that does not want to use an
organizational maturity model would
not need to do so; it could meet its
obligations under the rule by complying
with WCAG 2.1 Level AA. But it is
unclear whether this approach will
benefit either people with disabilities or
public entities. We seek public
175 Level Access, Digital Accessibility Maturity
Model (DAAM) Archives, https://
www.levelaccess.com/category/damm/ [https://
perma.cc/Z683-X9H5].
176 Level Access, The Digital Accessibility
Maturity Model: Dimension #7—Testing and
Validation, https://www.levelaccess.com/thedigital-accessibility-maturity-model-dimension-7testing-and-validation/ [https://perma.cc/VU933NH4].
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comment on whether the Department
should adopt an approach to
compliance that includes organizational
maturity, and how such an approach
could be implemented successfully.
The Department seeks public
comment on how compliance with the
web and mobile app accessibility
requirements should be assessed or
measured, including comments on these
approaches to measuring compliance
and any alternative approaches it
should consider.
Please provide as much detail as
possible and any applicable data,
suggested alternative approaches or
requirements, arguments, explanations,
and examples in your responses to the
following questions.
Question 50: What should be
considered sufficient evidence to
support an allegation of noncompliance
with a technical standard for purposes
of enforcement action? For example, if
web content or a mobile app is
noncompliant according to one testing
methodology, or using one configuration
of assistive technology, hardware, and
software, is that sufficient?
Question 51: In evaluating
compliance, do you think a public
entity’s policies and practices related to
web and mobile app accessibility (e.g.,
accessibility feedback, testing,
remediation) should be considered and,
if so, how? For example, should
consideration be given to an entity’s
effectively working processes for
accepting and addressing feedback
about accessibility problems; using
automated testing, manual testing, or
testing by people with relevant
disabilities to identify accessibility
problems; and remediating any
accessibility problems identified within
a reasonable period of time according to
the entity’s policies, and if so, how?
How would such an approach impact
people with disabilities?
Question 52: If you think a public
entity’s policies and practices for
receiving feedback on web and mobile
app accessibility should be considered
in assessing compliance, what specific
policies and practices for feedback
would be effective?
Question 53: If you think a public
entity’s web and mobile app
accessibility testing policies and
practices should be considered in
assessing compliance, what specific
testing policies and practices would be
effective? For example, how often
should websites and mobile apps
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undergo testing, and what methods
should be used for testing? If manual
testing is required, how often should
this testing be conducted, by whom, and
what methods should be used? Should
the Department require public entities’
websites and mobile apps to be tested in
consultation with individuals with
disabilities or members of disability
organizations, and, if so, how?
Question 54: If you think a public
entity’s web and mobile app
accessibility remediation policies and
practices should be considered in
assessing compliance, what specific
remediation policies and practices
would be effective? Should instances of
nonconformance that have a more
serious impact on usability—because of
the nature of the nonconformance (i.e.,
whether it entirely prevents access or
makes access more difficult), the
importance of the content, or
otherwise—be remediated in a shorter
period of time, while other instances of
nonconformance are remediated in a
longer period of time? How should these
categories of nonconformance be
defined and what time frames should be
used, if any?
Question 55: Should a public entity be
considered in compliance with this part
if the entity remediates web and mobile
app accessibility errors within a certain
period of time after the entity learns of
nonconformance through accessibility
testing or feedback? If so, what time
frame for remediation is reasonable?
How would allowing public entities a
certain amount of time to remediate
instances of nonconformance identified
through testing or feedback impact
people with disabilities?
Question 56: Should compliance with
this rule be assessed differently for web
content that existed on the public
entity’s website on the compliance date
than for web content that is added after
the compliance date? For example,
might it be appropriate to allow some
additional time for remediation of
content that is added to a public entity’s
website after the compliance date, if the
public entity identifies nonconformance
within a certain period of time after the
content is added, and, if so, what should
the remediation time frame be? How
would allowing public entities a certain
amount of time to remediate instances
of nonconformance identified in content
added after the compliance date impact
people with disabilities?
Question 57: What policies and
practices for testing and remediating
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web and mobile app accessibility
barriers are public entities or others
currently using and what types of testing
and remediation policies and practices
are feasible (or infeasible)? What types
of costs are associated with these testing
and remediation policies?
Question 58: In evaluating
compliance, do you think a public
entity’s organizational maturity related
to web and mobile app accessibility
should be considered and, if so, how?
For example, what categories of
accessibility should be measured? How
should maturity in each category be
assessed or demonstrated i.e., what
should the levels of organizational
maturity be and what should an entity
be required to do to attain each level)?
What indicators of organizational
maturity criteria would be feasible for
public entities to attain? How would an
approach that assesses organizational
maturity for purposes of demonstrating
compliance impact people with
disabilities? Would such an approach be
useful for public entities?
Question 59: If you think a public
entity’s organizational maturity should
be considered in assessing compliance,
what level of organizational maturity
would be effective? For example, if an
organizational maturity model has ten
categories, should an entity be required
to attain the highest level of maturity in
all ten? Should an entity be required to
sustain a particular level of
organizational maturity for a certain
length of time?
Question 60: Should a public entity be
considered in compliance with this part
if the entity increases its level of
organizational maturity by a certain
amount within a certain period of time?
If so, what time frame for improvement
is reasonable, and how much should
organizational maturity be required to
improve? How would an entity
demonstrate this improvement? How
would allowing public entities a certain
amount of time to develop
organizational maturity with respect to
accessibility impact people with
disabilities? Would requiring public
entities to improve their organizational
maturity over time be effective?
Question 61: Are there any
frameworks or methods for defining,
assessing, or demonstrating
organizational maturity with respect to
digital accessibility that the Department
should consider adopting for purposes
of this rule?
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Question 62: Should the Department
address the different level of impact that
different instances of nonconformance
with a technical standard might have on
the ability of people with disabilities to
access the services, programs, and
activities that a public entity offers via
the web or a mobile app? If so, how?
Question 63: Should the Department
consider limiting public entities’
compliance obligations if
nonconformance with a technical
standard does not prevent a person with
disabilities from accessing the services,
programs, and activities that a public
entity offers via the web or a mobile
app? Should the Department consider
limiting public entities’ compliance
obligations if nonconformance with a
technical standard does not prevent a
person with disabilities from accessing
the same information, engaging in the
same interactions, and enjoying the
same programs, services, and activities
as people without relevant disabilities,
within similar time frames and with
substantially equivalent ease of use?
Should the Department consider
limiting public entities’ compliance
obligations if members of the public
with disabilities who are seeking
information or services from a public
entity have access to and use of
information and services that is
comparable to that provided to
members of the public who are not
individuals with disabilities? How
would these limitations impact people
with disabilities?
Question 64: Should the Department
adopt percentages of web or mobile app
content that need to be accessible or
other similar means of measuring
compliance? Is there a minimum
threshold below 100 percent that is an
acceptable level of compliance? If the
Department sets a threshold for
compliance, how would one determine
whether a website or mobile app meets
that threshold?
Question 65: When assessing
compliance, should all instances of
nonconformance be treated equally?
Should nonconformance with certain
WCAG 2.1 success criteria, or
nonconformance in more frequently
accessed content or more important
core content, be given more weight when
determining whether a website or
mobile app meets a particular threshold
for compliance?
Question 66: How should the
Department address isolated or
temporary noncompliance 177 with a
technical standard and under what
circumstances should noncompliance
be considered isolated or temporary?
177 See
28 CFR 35.133(b).
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How should the Department address
noncompliance that is a result of
technical difficulties, maintenance,
updates, or repairs?
Question 67: Are there any local,
State, Federal, international, or other
laws or policies that provide a
framework for measuring, evaluating,
defining, or demonstrating compliance
with web or mobile app accessibility
requirements that the Department
should consider adopting?
VI. Regulatory Process Matters
The Department has examined the
likely economic and other effects of this
proposed rule addressing the
accessibility of web content and mobile
apps, as required, under applicable
Executive Orders,178 Federal
administrative statutes (e.g., the
Regulatory Flexibility Act,179
Paperwork Reduction Act,180 and
Unfunded Mandates Reform Act 181) and
other regulatory guidance.182
As discussed previously, the purpose
of this proposed regulation is to revise
the regulation implementing title II of
the ADA in order to ensure that the
services, programs, or activities offered
by State and local government entities
to the public via web content and
mobile apps are accessible to people
with disabilities. The Department is
proposing to adopt specific technical
standards related to the accessibility of
the web content and mobile apps of
State and local government entities and
is specifying proposed dates by which
such web content and mobile apps must
meet those standards. This rule is
necessary to help public entities
understand how to ensure that people
with disabilities will have equal access
to the services, programs, and activities
public entities make available on or
through their web content and mobile
apps.
The Department has carefully crafted
this proposed regulation to better ensure
the protections of title II of the ADA,
while at the same time doing so in the
most economically efficient manner
possible. After assessing the likely costs
of this proposed regulation, the
Department has determined that it is a
178 See E.O. 14094, 88 FR 21879 (Apr. 6, 2023);
E.O. 13563, 76 FR 3821 (Jan. 21, 2011); E.O. 13272,
67 FR 53461 (Aug. 13, 2002); E.O. 13132, 64 FR
43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735
(Sept. 30, 1993).
179 Regulatory Flexibility Act of 1980 (‘‘RFA’’), as
amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et
seq.
180 Paperwork Reduction Act (‘‘PRA’’), 44 U.S.C.
3501 et seq.
181 Unfunded Mandates Reform Act of 1995, 2
U.S.C. 1501 et seq.
182 OMB Circular A–4 (Sept. 17, 2003).
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section 3(f)(1) significant regulatory
action within the meaning of Executive
Order 12866, as amended by Executive
Order 14094. As such, the Department
has undertaken a Preliminary
Regulatory Impact Analysis (‘‘PRIA’’)
pursuant to Executive Order 12866. The
Department has undertaken a
Preliminary Regulatory Flexibility
Analysis as specified in § 603(a) of the
Regulatory Flexibility Act. The results
of both of these analyses are
summarized below. Lastly, the
Department does not believe that this
proposed regulation will have any
impact—significant or otherwise—
relative to the Paperwork Reduction
Act, the Unfunded Mandates Reform
Act, or the federalism principles
outlined in Executive Order 13132.
A. Preliminary Regulatory Impact
Analysis (‘‘PRIA’’) Summary
1. Introduction
The Department has prepared a
Preliminary Regulatory Impact Analysis
(‘‘PRIA’’) for this rulemaking. This PRIA
complies with the requirements of
Executive Order 12866, as well as other
authorities on regulatory planning, by
providing a robust economic analysis of
the costs and benefits of this
rulemaking. It contains a Preliminary
Regulatory Flexibility Analysis
(‘‘PRFA’’), which is also included in this
summary. The Department contracted
with Eastern Research Group Inc.
(‘‘ERG’’) to prepare this economic
assessment. This summary provides an
overview of the Department’s
preliminary economic analysis and key
components of the PRIA. The full PRIA
will be made available at https://
www.ada.gov/assets/_pdfs/web-pria.pdf.
Requiring State and local government
entities’ web content and mobile apps to
comply with the WCAG 2.1 Level AA
success criteria will result in costs for
State and local government entities to
remediate and maintain their web
content and mobile apps in
conformance with this technical
standard. The Department believes that
most of these costs will be one-time
expenses to remediate existing websites,
and that the rule will not impose as
substantial cost burdens in the creation
of new websites, as experts estimate that
building accessibility into a website
initially is 3–10 times less expensive
than retrofitting an existing one for
accessibility.183 Based on a Department
analysis of the web presence of a sample
of 227 State and local government
183 Level Access, The Road to Digital
Accessibility, https://www.levelaccess.com/theroad-to-digital-accessibility/ [https://perma.cc/
4972-J8TA].
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entities, the Department estimates that a
total number of 109,893 State and local
government entity websites and 8,805
State and local government entity
mobile apps will be affected by the rule.
These websites and mobile apps provide
services on behalf of and are managed
by 91,489 State and local government
entities that will incur these costs.
These costs include one-time costs for
familiarization with the requirements of
the rule; testing, remediation, and O&M
costs for websites; testing, remediation,
and O&M costs for mobile apps; and
school course remediation costs. The
remediation costs include both time and
software components. Initial
familiarization, testing, and remediation
costs of the proposed rule occur over the
first two or three years (two years for
large governments and three years for
small governments) and are presented in
Table 3. Implementation costs accrue
during the first three years of the
analysis (the implementation period)
and total $15.8 billion, undiscounted.
After the implementation period, annual
O&M costs are $1.8 billion. Annualized
costs are calculated over a 10-year
period that includes both this
implementation period and seven years
post-implementation. Annualized costs
over this 10-year period are estimated at
$2.8 billion assuming a 3 percent
discount rate or $2.9 billion assuming a
7 percent discount rate. All values are
presented in 2021 dollars as 2022 data
were not yet available. These costs are
summarized in Table 4, Table 5, and
Table 6. Two findings that were notable
in the Department’s estimations for
accessible course content were that, due
to the limitations to the exceptions for
course content, the Department expects
that within two years following
implementation virtually all
postsecondary courses will be
remediated, and within the first year of
implementation virtually all elementary
and secondary classes or courses will be
remediated.
Benefits will generally accrue to all
individuals who access State and local
government entities’ web content and
mobile apps, and additional benefits
will accrue to individuals with certain
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types of disabilities. The WCAG 2.1
Level AA standards primarily benefit
individuals with vision, hearing,
cognitive, and manual dexterity
disabilities because WCAG 2.1 is
intended to address barriers that often
impede access for people with these
disability types. Using 2021 data, the
Department estimates that 4.8 percent of
adults have a vision disability, 7.5
percent have a hearing disability, 10.1
percent have a cognitive disability, and
5.7 percent have a manual dexterity
disability. Due to the incidence of
multiple disabilities, the total share
without any of these disabilities is 80.1
percent.
Annual benefits, beginning once the
rule is fully implemented, total $11.4
billion. Because individuals generally
prefer benefits received sooner, future
benefits need to be discounted to reflect
the lower value due to the wait to
receive them. The Office of Management
and Budget (‘‘OMB’’) guidance states
that annualized benefits and costs
should be presented using real discount
rates of 3 and 7 percent.184 Benefits
annualized over a 10-year period that
includes both three years of
implementation and seven years postimplementation total $9.3 billion per
year, assuming a 3 percent discount
rate, and $8.9 billion per year, assuming
a 7 percent discount rate. Annual and
annualized monetized benefits of the
proposed rule are presented in Table 7,
Table 8, and Table 9. There are many
additional benefits that have not been
monetized due to data availability.
Benefits that cannot be monetized are
discussed qualitatively. Impacts to
individuals include increased
independence, increased flexibility,
increased privacy, reduced frustration,
decreased reliance on companions, and
increased program participation. This
proposed rule will also benefit
governments through increased
certainty about what constitutes
accessible web content, potential
184 See Office of Management and Budget,
Circular A–4 (Sept. 17, 2003), https://
www.whitehouse.gov/wp-content/uploads/legacy_
drupal_files/omb/circulars/A4/a-4.pdf [https://
perma.cc/7655-M7UF].
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reduction in litigation, and a larger labor
market pool.
Comparing annualized costs and
benefits, monetized benefits to society
outweigh the costs. A summary of this
comparison is presented in Table 10.
Net annualized benefits over the first 10
years post publication of this rule total
$6.5 billion per year using a 3 percent
discount rate and $6.0 billion per year
using a 7 percent discount rate.
Additionally, beyond this 10-year
period, benefits are likely to continue to
accrue at a greater rate than costs
because many of the costs are upfront
costs and benefits tend to have a delay
before beginning to accrue.
To consider the relative magnitude of
the estimated costs of this proposed
regulation, the Department also
compared the costs to revenues for
public entities. Because the costs for
each government entity type are
estimated to be well below 1 percent of
revenues, the Department does not
believe the rule will be unduly
burdensome or costly for public
entities.185 Costs of the rulemaking for
each government entity type are
estimated to be well below this 1
percent threshold.
The Department’s economic analysis
is discussed more fully in the complete
PRIA. However, the Department will
review its findings and analysis in this
summary. Some key portions of the
PRIA are also included here in full to
aid in understanding the Department’s
analysis and to provide sufficient
context for public feedback.
185 As noted above and as a point of reference, the
United States Small Business Administration
advises agencies that a potential indicator that the
impact of a proposed regulation may be
‘‘significant’’ is whether the costs exceed 1 percent
of the gross revenues of the entities in a particular
sector, although the threshold may vary based on
the particular types of entities at issue. The
Department estimates that the costs of this
rulemaking for each government entity type are far
less than 1 percent of revenues. See Small Bus.
Admin., A Guide for Government Agencies: How to
Comply with the Regulatory Flexibility Act 19
(Aug. 2017), https://advocacy.sba.gov/wp-content/
uploads/2019/07/How-to-Comply-with-the-RFAWEB.pdf [https://perma.cc/MZW6-Y3MH].
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TABLE 3—INITIAL FAMILIARIZATION, TESTING, AND REMEDIATION COSTS
[Millions]
Cost
State
County
Municipal
Township
Special
district
School
district
U.S. territories
Higher ed.
Total
Regulatory familiarization ......
Websites ................................
Mobile apps ...........................
Postsecondary course remediation ................................
Primary and secondary
course remediation ............
Third-party website remediation ...................................
$0.02
228.9
13.7
$0.90
742.5
53.1
$5.79
2,363.4
93.4
$4.83
1,342.9
1.3
$11.44
374.4
0.0
$3.63
1,826.1
379.7
$0.00
6.4
1.2
$0.56
1,283.0
64.4
$27.17
8,167.7
606.8
N/A
N/A
N/A
N/A
N/A
N/A
N/A
5,393.8
5,393.8
N/A
47.4
18.5
40.0
N/A
1,059.5
N/A
N/A
1,165.4
6.6
35.8
133.5
77.6
18.0
103.1
0.0
84.7
459.2
Total ...............................
249.2
879.7
2,614.6
1,466.6
403.9
3,372.0
7.6
6,826.4
15,819.9
TABLE 4—AVERAGE ANNUAL COST AFTER IMPLEMENTATION
[Millions]
Cost
State
County
Municipal
Township
Special
district
School
district
U.S. territories
Higher ed.
Total
Websites ................................
Mobile apps ...........................
Postsecondary course remediation ................................
Primary and secondary
course remediation ............
Third-party website remediation ...................................
$19.9
0.01
$65.1
0.04
$215.1
0.03
$124.2
0.00
$40.5
0.00
$164.7
0.21
$0.6
0.00
$111.7
0.04
$741.9
0.33
N/A
N/A
N/A
N/A
N/A
N/A
N/A
935.7
935.7
N/A
4.7
1.9
4.0
N/A
105.9
N/A
N/A
116.5
0.6
3.2
12.1
7.2
1.9
9.2
0.0
7.4
41.6
Total ...............................
20.5
73.1
229.2
135.4
42.5
280.1
0.6
1,054.8
1,836.0
TABLE 5—10-YEAR AVERAGE ANNUALIZED COST, 3 PERCENT DISCOUNT RATE
[Millions]
Cost
State
County
Municipal
Township
Special
district
School
district
U.S. territories
Higher ed.
Total
Regulatory familiarization ......
Websites ................................
Mobile apps ...........................
Postsecondary course remediation ................................
Primary and secondary
course remediation ............
Third-party website remediation ...................................
$0.00
38.9
1.5
$0.10
126.4
5.9
$0.66
405.2
10.5
$0.55
231.2
0.1
$1.30
68.4
0.0
$0.41
312.4
42.2
$0.00
1.1
0.1
$0.06
217.9
7.2
$3.09
1,401.5
67.7
N/A
N/A
N/A
N/A
N/A
N/A
N/A
1,100.9
1,100.9
N/A
7.9
3.1
6.7
N/A
176.9
N/A
N/A
194.6
1.1
6.1
22.9
13.4
3.3
17.6
0.0
14.4
78.7
Total ...............................
41.5
146.4
442.3
251.9
73.0
549.6
1.2
1,340.6
2,846.6
TABLE 6—10-YEAR AVERAGE ANNUALIZED COST, 7 PERCENT DISCOUNT RATE
[Millions]
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Cost
State
County
Municipal
Township
Special
district
School
district
U.S. territories
Higher ed.
Total
Regulatory familiarization ......
Websites ................................
Mobile apps ...........................
Postsecondary course remediation ................................
Primary and secondary
course remediation ............
Third-party website remediation ...................................
$0.00
41.6
1.8
$0.12
135.2
6.7
$0.77
429.6
12.0
$0.64
244.5
0.2
$1.52
71.8
0.0
$0.48
331.8
47.7
$0.00
1.2
0.2
$0.07
233.5
8.3
$3.61
1,489.1
76.9
N/A
N/A
N/A
N/A
N/A
N/A
N/A
1,097.5
1,097.5
N/A
8.0
3.1
6.8
N/A
179.2
N/A
N/A
197.1
1.2
6.5
24.3
14.1
3.4
18.7
0.0
15.4
83.7
Total ...............................
44.6
156.6
469.8
266.1
76.8
577.9
1.3
1,354.8
2,947.9
TABLE 7—ANNUAL BENEFIT ONCE FULL IMPLEMENTATION
[Millions]
Visual
disability
Benefit type
Time savings—current users ...............................................
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Other relevant
disability a
$549.6
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$751.3
Without
relevant
disabilities
$2,858.5
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N/A
Total
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51989
TABLE 7—ANNUAL BENEFIT ONCE FULL IMPLEMENTATION—Continued
[Millions]
Visual
disability
Benefit type
Other relevant
disability a
Without
relevant
disabilities
State and local
gov’ts
Total
Time savings—new users ....................................................
Time savings—mobile apps .................................................
Time savings—education .....................................................
Educational attainment ........................................................
222.4
51.5
693.5
7.2
695.0
70.5
1,205.8
255.6
N/A
268.1
3,157.8
N/A
600.6
N/A
N/A
N/A
1,518.1
390.1
5,057.1
262.8
Total benefits ................................................................
1,524.2
2,978.3
6,284.3
600.6
11,387.5
a For
purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ‘‘other relevant disabilities.’’
TABLE 8—10-YEAR AVERAGE ANNUALIZED BENEFITS, 3 PERCENT DISCOUNT RATE
[Millions]
Visual
disability
Benefit type
Other relevant
disability a
Without
relevant
disabilities
State and local
gov’ts
Total
Time savings—current users ...............................................
Time savings—new users ....................................................
Time savings—mobile apps .................................................
Time savings—education .....................................................
Educational attainment ........................................................
$463.6
187.6
43.5
504.7
13.8
$633.8
586.4
59.4
878.8
492.4
$2,411.6
N/A
226.2
2,307.6
N/A
N/A
506.7
N/A
N/A
N/A
$3,509.1
1,280.7
329.1
3,691.1
506.2
Total benefits ................................................................
1,213.2
2,650.9
4,945.4
506.7
9,316.3
a For
purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ‘‘other relevant disabilities.’’
TABLE 9—10-YEAR AVERAGE ANNUALIZED BENEFITS, 7 PERCENT DISCOUNT RATE
[Millions]
Other
relevant
disability a
Visual
disability
Benefit type
Without
relevant
disabilities
State and local
gov’ts
Total
Time savings—current users ...............................................
Time savings—new users ....................................................
Time savings—mobile apps .................................................
Time savings—education .....................................................
Educational attainment ........................................................
$451.4
182.7
42.3
478.9
12.3
$617.1
570.8
57.9
834.2
437.2
$2,347.7
N/A
220.2
2,191.3
N/A
N/A
493.3
N/A
N/A
N/A
$3,416.1
1,246.8
320.4
3,504.4
449.5
Total benefits ................................................................
1,167.6
2,517.1
4,759.1
493.3
8,937.2
a For
purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ‘‘other relevant disabilities.’’
TABLE 10—10-YEAR AVERAGE ANNUALIZED COMPARISON OF COSTS AND BENEFITS
3% Discount
rate
Benefit type
Average annualized costs (millions) ........................................................................................................................
Average annualized benefits (millions) ....................................................................................................................
Net benefits (millions) ..............................................................................................................................................
Cost-to-benefit ratio .................................................................................................................................................
ddrumheller on DSK120RN23PROD with PROPOSALS2
2. Baseline Conditions
To estimate the costs and benefits of
the proposed rule, baseline web
accessibility of government websites
and baseline disability prevalence need
to be considered both in the presence
and absence of the proposed rule over
the 10-year analysis period. For these
analyses, the Department assumed that
the number of governments would
remain constant over the 10-year
horizon for which the Department
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projects costs and benefits. This is in
line with the trend of total government
units in the United States, which rose
by only 19 government units
(representing a 0.02 percent increase)
between 2012 and 2017.186 The
186 U.S. Census Bureau, Census of Governments
2017—Public use Files (Jan. 2017), https://
www.census.gov/data/datasets/2017/econ/gus/
public-use-files.html [https://perma.cc/UG795MVM]; U.S. Census Bureau, Census of
Governments 2012—Public use Files (Jan. 2012),
https://www.census.gov/data/datasets/2012/econ/
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$2,846.6
9,316.3
6,469.7
0.3
7% Discount
rate
$2,947.9
8,937.2
5,989.3
0.3
Department assumes that the total
number of government websites scales
with the number of governments, and
that the number of government websites
that each government maintains would
remain constant for the 10-year period
with or without the rule. The
Department notes, however, that if the
number of government websites
increases over time, both costs and
gus/public-use-files.html [https://perma.cc/7UPPH9WN].
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benefits would increase accordingly,
and because benefits are estimated to be
larger than costs, this would only create
a larger net benefit for the rule. The
Department also assumes constant rates
of disability over the 10-year horizon.187
Finally, the ways in which government
websites are used and the types of
websites (e.g., Learning Management
Systems and Content Management
Systems) are assumed to be constant
due to a lack of data.
Costs to test and remediate websites
were estimated based on the level of
effort needed to reach full compliance
with WCAG 2.1 Level AA from the level
of observed compliance during the
Department’s automated and manual
accessibility checking from September
2022 through October 2022. The
Department did not feel confident
quantifying baseline conformity with
proposed requirements.188 Baseline
accessibility of mobile apps and
password-protected course content was
understood through literature, which
estimated costs to make those materials
WCAG 2.1 Level AA compliant,
implicitly defining baseline conditions.
Most literature on current website
accessibility has not historically tested
websites against the same sets of
standards, so comparing results from
studies over time to find trends in
accessibility is challenging.
Additionally, the types of websites
tested, and their associated geographies,
tend to vary from study to study,
compounding the difficulty of extracting
longitudinal trends in accessibility.
There are, however, some studies that
have evaluated the change in
accessibility for the same websites in
different time periods, such as a 2014
paper that continued a study of
Alabama website accessibility from
2002.189 190 That study found almost no
change in accessibility from the
previous 2002 study.191 Although most
accessibility studies do not take this
longitudinal approach, their
conclusions, regardless of the standards
against which websites are checked, are
generally that websites are not fully
accessible. For example, a 2006 study
found that 98 percent of State home
pages did not meet WCAG 1.0 Level AA
guidelines.192 Another 2006 study
found that only 18 percent of municipal
websites met section 508 standards.193
And 14 years later, a 2021 study found
that 71 percent of county websites
evaluated did not conform to WCAG
2.0, and the remaining 29 percent only
partially conformed to the standards.194
Given the minimal progress in web
accessibility over the last 20 years, the
Department does not expect that
compliance with WCAG 2.1 Level AA
would improve significantly in the
absence of the rule.
3. Number of Affected Governments and
Individuals
The proposed regulation will affect all
State and local government entities 195
by requiring them to comply with
WCAG 2.1 Level AA. The Department
used the 2017 Census of Governments to
determine the number of affected
governments, disaggregated by
government entity type as defined by
the Census Bureau.196 The Department
estimates the number of government
entities affected by the proposed rule in
Table 11. To account for differences in
government characteristics, the
Department stratified the government
entities by population size and analyzed
impacts of the rule to each type of
government entity within each
population size category. The
Department assumes that the number of
governments would remain constant
throughout the 10-year analysis period
with or without the rule.
TABLE 11—NUMBER OF GOVERNMENTS BY GOVERNMENT ENTITY TYPE 197
Population
of less than
50,000
Type of government entity
ddrumheller on DSK120RN23PROD with PROPOSALS2
State .............................................................................................................................................
County ..........................................................................................................................................
Municipal ......................................................................................................................................
Township ......................................................................................................................................
Special district ..............................................................................................................................
School district ..............................................................................................................................
U.S. territory .................................................................................................................................
Public university ...........................................................................................................................
Community college ......................................................................................................................
187 Recent trends in disability prevalence vary
across surveys, with some finding an increase in
recent years and others finding no change. Due to
uncertainty, the Department assumed no change in
prevalence rates over the next ten years. U.S.
Census Bureau, 2021 SIPP: Estimates of Disability
Prevalence (Aug. 30, 2022), https://
www.census.gov/programs-surveys/sipp/techdocumentation/user-notes/2021-usernotes/estimdisabilty-preval.html [https://perma.cc/6BJB-XX96].
188 Though SortSite does give what percentile a
website falls into as far as accessibility, it does not
give a raw ‘‘accessibility score.’’
189 Andrew Potter, Accessibility of Alabama
Government websites, 29 Journal of Government
Information 303 (2002), https://doi.org/10.1016/
S1352-0237(03)00053-4 [https://perma.cc/5W29YUHK].
190 Norman Youngblood, Revisiting Alabama
State website Accessibility, 31 Government
Information Quarterly 476 (2014), https://doi.org/
10.1016/j.giq.2014.02.007 [https://perma.cc/PUL4QUCD].
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191 Potter (2002) found that 80 percent of State
websites did not pass section 508 standards, and
Youngblood (2014) found that 78 percent of those
same websites still did not meet section 508
standards 12 years later. Andrew Potter,
Accessibility of Alabama Government websites, 29
Journal of Government Information 303 (2002),
https://doi.org/10.1016/S1352-0237(03)00053-4
[https://perma.cc/5W29-YUHK]; Norman
Youngblood, Revisiting Alabama State website
Accessibility, 31 Government Information Quarterly
476 (2014), https://doi.org/10.1016/
j.giq.2014.02.007 [https://perma.cc/PUL4-QUCD].
192 Tanya Goette et al., An Exploratory Study of
the Accessibility of State Government websites, 5
Universal Access in the Information Society 41
(Apr. 20, 2006), https://link.springer.com/article/
10.1007/s10209-006-0023-2 [https://perma.cc/
6SD9-KRFT].
193 Jennifer S. Evans-Cowley, The Accessibility of
Municipal Government websites, 2 Journal of EGovernment 75 (2006), https://
www.tandfonline.com/doi/abs/10.1300/
J399v02n02_05. A Perma archive link was
unavailable for this citation.
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N/A
2,105
18,729
16,097
b 38,542
11,443
2
b 744
b 1,146
Population
of 50,000
or more
a 51
926
766
156
N/A
779
3
N/A
N/A
Total
51
3,031
19,495
16,253
38,542
12,222
5
744
1,146
194 Yang Bai et al., Accessibility of Local
Government websites: Influence of Financial
Resources, County Characteristics and Local
Demographics, 20 Universal Access in the
Information Society 851 (2021), https://
link.springer.com/article/10.1007/s10209-02000752-5 [https://perma.cc/YM6G-Y7TY]. The
Department notes that although these studies
discuss State or local government conformance with
the section 508 standards, those standards only
apply to the Federal Government, not to State or
local governments.
195 The PRIA summary and PRFA frequently refer
generally to ‘‘governments,’’ which is intended to
include only State or local governments covered by
this rulemaking.
196 U.S. Census Bureau, Census of Governments
2017—Public use Files (Jan. https://
www.census.gov/data/datasets/2017/econ/gus/
public-use-files.html [https://perma.cc/UG795MVM].
197 See Section 2.1, Number of Governments, in
the accompanying PRIA for the Department’s
methodology.
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TABLE 11—NUMBER OF GOVERNMENTS BY GOVERNMENT ENTITY TYPE 197—Continued
Population
of less than
50,000
Type of government entity
Population
of 50,000
or more
Total
Total (no higher education) ..................................................................................................
86,918
2,681
89,599
Total (with higher education) .........................................................................................
88,808
2,681
91,489
a Washington,
b Special
DC is included as a State for purposes of this table and the following analysis.
district, public university, and community college data do not include population. For these tables, they are displayed as small.
The Department expects the benefits
of this proposed regulation will accrue
to all individuals using State and local
government entities’ services, but
particularly to those with certain types
of disabilities. WCAG 2.1 Level AA
primarily benefits individuals with
vision, hearing, cognitive, and manual
dexterity disabilities.198 To identify
persons with those disabilities, the
Department relied on the U.S. Census
Bureau’s Survey of Income and Program
Participation (‘‘SIPP’’) for reasons
described further in the Department’s
full PRIA.199
Using SIPP 2021 data, as shown in
Table 12, the Department estimates that
4.8 percent of adults have a vision
disability, 7.5 percent have a hearing
disability, 10.1 percent have a cognitive
disability, and 5.7 percent have a
manual dexterity disability. Due to the
incidence of multiple disabilities, the
total share without any of these
disabilities is 80.1 percent.200
TABLE 12—DISABILITY PREVALENCE COUNTS, SIPP 2021
Prevalence
rate
(%)
Disability type
Vision ...............................................................................................................
Hearing ............................................................................................................
Cognitive ..........................................................................................................
Manual dexterity ..............................................................................................
None of the above ...........................................................................................
Marginal
prevalence
rate a
(%)
Number
(millions)
4.8
7.5
10.1
5.7
80.1
12.2
19.0
25.5
14.3
202.3
Marginal
number a
(millions)
4.8
6.1
6.7
2.3
80.1
12.2
15.3
16.9
5.7
202.3
Source: U.S. Census Bureau. https://www.census.gov/programs-surveys/sipp/data/datasets/2021-data/2021.html.
a Individuals with multiple qualifying disabilities are counted within the first disability category listed (e.g., if someone has a cognitive and vision
disability, they are included in the vision disability prevalence rate).
ddrumheller on DSK120RN23PROD with PROPOSALS2
4. Compliance Cost Analysis
For State and local Government
entities to comply with the proposed
rule, they will have to invest time and
resources to make inaccessible web and
mobile app content accessible. Based on
a review of the accessibility of a sample
of State and local government entities’
websites taken between September and
November 2022, the Department has
found that most government websites
and mobile apps will require
accessibility testing and remediation
because they do not meet the success
criteria of WCAG 2.1 Level AA. In
addition, the proposed rule will
generally require public postsecondary
educational institutions and primary
and secondary schools to provide
accessible course content to students
with disabilities at the time that the
schools knew or should have known
that a student with a disability is
enrolled in a class and would be unable
198 See Section VI.A.5.b of this preamble for
further information.
199 See U.S. Census Bureau, Survey of Income and
Program Participation—About this Survey (Aug.
2022), https://www.census.gov/programs-surveys/
sipp/about.html [https://perma.cc/Z7UH-6MJ8].
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to access the content available on the
password-protected website for that
class (the rule provides a similar
requirement for parents with disabilities
in the primary and secondary school
context). The Department performed
analyses to estimate the costs to test and
remediate inaccessible websites, mobile
apps, and education course content.
Estimated total costs of the rule can be
found in Table 3 above. The monetized
costs are also summarized further in the
following subsections.
a. Regulatory Familiarization Costs
Regulatory familiarization refers to
the time needed for professional staff
members to become familiar with the
requirements of new regulations. This
may include time spent reading the rule
itself, but more commonly it refers to
time spent reviewing guidance
documents provided by the Department,
advocacy groups, or professional
organizations. It does not include time
200 These estimates may miss some individuals
due to underreporting. Some individuals with
temporary disabilities may also not respond in the
affirmative and may be missed. We note, however,
that people with temporary disabilities may not
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spent identifying current compliance
levels or implementing changes. It also
does not include training time to learn
the nuances of WCAG 2.1 Level AA.
The Department has estimated
regulatory familiarization costs to be
$27.2 million. The summary of the
Department’s regulatory familiarization
calculations is included in Table 13,
and the Department’s analysis is
explained in more detail in Section 3.2,
Regulatory Familiarization Costs, of the
full PRIA. Average annualized
regulatory familiarization costs over 10
years, using a 7 percent discount rate,
are $3.6 million.
TABLE 13—REGULATORY
FAMILIARIZATION COSTS 201
Variable
Potentially affected governments ................................
Average hours per entity ......
Value
91,489
3
always qualify as having a disability covered by the
ADA.
201 See Section 3.2, Regulatory Familiarization
Costs, in the accompanying PRIA for the
Department’s methodology.
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TABLE 13—REGULATORY FAMILIARIZA- website and multiplying that time by
the 2021 Occupational Employment and
TION COSTS 201—Continued
Variable
Value
Loaded wage rate .................
Base wage a ..................
Adjustment factor ..........
Cost year 1 ($1,000s) ...........
Annual cost years 2–10
($1,000s) ...........................
Average annualized cost, 3%
discount rate ($1,000s) .....
Average annualized cost, 7%
discount rate ($1,000s) .....
$98.98
$49.49
2.00
$27,167
$0
$3,092
$3,615
a 2021
Occupational Employment and Wage
Survey (OEWS) median wage for software
and web developers, programmers, and testers (SOC 15–1250).
b. Website Testing, Remediation, and
O&M Costs
The proposed rule uses WCAG 2.1
Level AA as the standard for State and
local government entities’ websites. To
assess costs to State and local
government entities, the Department
employed multistage stratified cluster
sampling to randomly select
government entities and their websites.
To account for variability in website
complexity and baseline compliance
with WCAG 2.1 between government
types, the Department then sampled and
assessed costs based on each
government type. Each identified
website within the second-stage sample
was tested for accessibility using a twopronged approach of automated and
manual testing to estimate the number
of accessibility errors present on each
site. The Department estimated
remediation costs for government
websites based on these manual and
automated accessibility reports. The
cost of remediating a website was
calculated by estimating the amount of
time it would take to fix each
accessibility error identified on that
Wage Survey (‘‘OEWS’’) median wage
for software and web developers,
programmers, and testers and by a factor
of two to account for benefits and
overhead.202
Mobile app costs were analyzed
separately as described in Section
VI.A.4.c of this preamble. Further, costs
associated with the remediation of PDFs
and the captioning of video and audio
media hosted on government websites
were estimated separately, in order to
better capture the nuanced costs
associated with remediating these types
of content.
For costs of PDF remediation, the
Department calculated both software
costs and remediation time, given that
access to some PDF editing software
equipped with accessibility
functionality is necessary to ensure
PDFs are accessible. The Department
estimated the amount of time needed to
remediate existing PDFs covered by the
proposed rule by determining an
average amount of time needed to make
a pre-existing PDF compliant with
WCAG 2.1 Level AA and estimating the
number of covered PDFs hosted on State
and local government entities’ websites
requiring remediation.
For costs of captioning, two
governments were randomly selected
from each government type, for a total
of 28 governments selected. The
Department compiled a list of all videos
and audio files associated with each
website. The Department then made a
determination about whether the video
or audio media required captions and
recorded their durations. The durations
of YouTube and Vimeo videos were
imputed from the mean duration of nonYouTube and non-Vimeo videos,
computed across all 28 governments.
The Department estimated that, for
those 28 entities, captioning is needed
for: 1,640 minutes of non-YouTube and
non-Vimeo videos, 378 minutes of audio
files, and 23,794 minutes of YouTube
and Vimeo videos. This adds up to a
total captioning time of 25,811 minutes
for the 28 governments. The Department
then scanned consumer prices and,
based on that scan, applied an upper
bound rate of $15 per minute to caption
to the total captioning time, yielding an
estimated cost of $387,200 across the 28
governments. For these same
governments, the total estimated
website remediation costs are $8.1
million. Thus, the ratio of captioning
costs to website remediation costs is 4.8
percent. This ratio represents the
estimated mean percentage increase in
website remediation costs when
accounting for video and audio content
requiring captions—including content
posted to external sites and platforms
such as YouTube and Vimeo. This mean
percentage was applied uniformly to all
government types to scale up the
website remediation costs to account for
video and audio content. The
Department’s assessment of these costs
is included in the full PRIA and
summarized in Table 14.
In addition, the Department estimated
testing costs by evaluating the pricing of
several commercial web accessibility
checkers that could be used in tandem
with manual testing. The Department
then derived an average cost to test and
remediate all websites of a given
government entity for each government
type and size. Initial website testing and
remediation costs are summarized in
Table 14, and the methodologies used to
calculate these costs are fully described
in Section 3.3, website Testing,
Remediation, and O&M Costs, in the full
PRIA.
TABLE 14—TOTAL INITIAL WEBSITE TESTING AND REMEDIATION COSTS
[Millions] 203
ddrumheller on DSK120RN23PROD with PROPOSALS2
Type of Government entity
Testing costs
State .....................................................................................
County (small) ......................................................................
County (large) ......................................................................
Municipality (small) ..............................................................
Municipality (large) ...............................................................
Township (small) ..................................................................
Township (large) ..................................................................
Special district ......................................................................
U.S. territory (small) .............................................................
U.S. territory (large) .............................................................
School district (small) ...........................................................
202 U.S. Bureau of Labor Statistics, May 2021
National Occupational Employment and Wage
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Website
remediation
costs
$28.3
9.1
87.7
268.8
61.8
185.5
3.8
61.4
0.1
0.6
175.1
$141.1
35.4
433.2
1,260.1
304.2
876.1
18.0
247.0
0.6
3.0
813.5
Estimates United States (Mar. 31, 2022), https://
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PDF
remediation
costs
$22.9
15.9
44.4
112.7
45.0
89.5
2.1
13.8
0.4
0.7
55.7
Video and
audio
captioning
costs
$6.7
1.7
20.6
60.0
14.5
41.7
0.9
11.8
0.0
0.1
38.7
Total initial
costs
$199.0
62.2
585.9
1,701.5
425.5
1,192.8
24.7
333.9
1.2
4.5
1,083.0
www.bls.gov/oes/current/oes_nat.htm#15-0000
[https://perma.cc/U2JE-ZXAL].
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TABLE 14—TOTAL INITIAL WEBSITE TESTING AND REMEDIATION COSTS—Continued
[Millions] 203
Type of Government entity
Testing costs
Website
remediation
costs
PDF
remediation
costs
Video and
audio
captioning
costs
Total initial
costs
School district (large) ...........................................................
Public university ...................................................................
Community college ..............................................................
85.2
73.4
98.0
421.4
362.7
483.4
24.1
26.7
30.9
20.1
17.3
23.0
550.8
480.1
635.3
Total ..............................................................................
1,138.8
5,399.6
484.9
257.1
7,280.3
In addition to initial testing and
remediation costs associated with
making existing web content accessible,
the Department also estimated O&M
costs, which State and local government
entities would incur after the initial
implementation phase. These O&M
costs cover ongoing activities required
under the rule to ensure that new web
content meets WCAG 2.1 Level AA such
as websites and new social media posts.
The Department estimates O&M costs
will be composed of (1) a fixed cost for
technology to assist with creating
accessible content, as well as (2) a
variable cost that scales according to the
size and type of content on the website.
In general, entities whose websites have
higher remediation costs are likely to
have a higher O&M burden, as
remediation cost is one useful measure
of the amount of web content that must
conform to WCAG 2.1 Level AA. As
such, the Department believes that the
initial remediation costs serve as a
reasonable basis for scaling future O&M
costs. However, regardless of their
initial remediation burden, governments
may be able to mitigate their ongoing
costs by developing systems early in the
implementation period to ensure that
accessibility considerations are
incorporated at every stage of future
content creation.
Annual O&M costs are estimated to be
significantly smaller than remediation
costs because (1) the amount of new
material added each year will generally
be less than the current amount of
content and (2) the cost to make new
content accessible is significantly
smaller than to remediate existing
content. One vendor estimates that
making content accessible during the
development phase is 3–10 times faster,
and consequently less expensive, than
remediating web content after a website
has been fully launched.204 Given the
estimate that new web content is 3–10
times faster to make accessible than
existing content, the Department
concluded that allocating 10 percent of
the time originally used to test and
remediate sites to O&M each year would
be more than sufficient to ensure future
content is accessible.
Table 15 displays the undiscounted
annual O&M costs for each government
type. The total annual cost across all
State and local government entities is
estimated to be $741.9 million. O&M
costs are estimated to accrue over the
implementation period following the
same schedule described for initial
costs. Large governments will incur 100
percent of annual O&M costs starting in
Year 3 following promulgation of the
proposed rule, and small governments
would incur these full O&M costs
beginning in Year 4. For more on annual
O&M costs, please see Section 3.3.8,
Operating and Maintenance (‘‘O&M’’)
Costs, of the accompanying PRIA.
TABLE 15—ANNUAL O&M COSTS, BY GOVERNMENT TYPE
[Thousands] 205
Undiscounted
annual O&M
costs, per
entity a
ddrumheller on DSK120RN23PROD with PROPOSALS2
Type of Government entity
Total
undiscounted
annual O&M
costs for
all entities
State .........................................................................................................................................................................
County (small) ..........................................................................................................................................................
County (large) ..........................................................................................................................................................
Municipality (small) ..................................................................................................................................................
Municipality (large) ...................................................................................................................................................
Township (small) ......................................................................................................................................................
Township (large) ......................................................................................................................................................
Special district ..........................................................................................................................................................
U.S. territory (small) .................................................................................................................................................
U.S. territory (large) .................................................................................................................................................
School district (small) ..............................................................................................................................................
School district (large) ...............................................................................................................................................
Public university .......................................................................................................................................................
Community college ..................................................................................................................................................
$390.3
3.1
63.4
9.2
55.6
7.6
15.9
1.1
57.9
149.2
9.6
70.8
64.6
55.5
$19,906.4
6,470.7
58,677.8
172,517.7
42,622.7
121,724.7
2,482.2
40,513.9
115.8
447.7
109,531.3
55,156.1
48,081.1
63,644.5
Total ..................................................................................................................................................................
8.1
741,892.6
a This
column presents the mean annual O&M cost across all governments, including those that do not have a website.
203 See Section 3.3, website Testing, Remediation,
and O&M Costs, in the accompanying PRIA for the
Department’s methodology.
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204 Level Access, The Road to Digital
Accessibility, https://www.levelaccess.com/theroad-to-digital-accessibility/ [https://perma.cc/
4972-J8TA].
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205 See Section 3.3.8, Operating and Maintenance
(O&M) Costs, in the accompanying PRIA for the
Department’s methodology.
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The Department assumes that initial
testing and remediation costs would be
uniformly distributed across the number
of implementation years for each entity
type. In aggregate, it was assumed that
large entities would incur 50 percent of
their initial testing and remediation
costs during each of Year 1 and Year 2
following the promulgation of the rule,
and that small entities would incur 33
percent of their initial testing and
remediation costs during each of the
first three years following the
promulgation of the rule. Total
projected website costs over 10 years are
displayed in Table 16, and are discussed
in Section 3.3.9 of the full PRIA. Present
value (‘‘PV’’) and average annualized
costs are displayed using both a 3
percent and 7 percent discount rate.
TABLE 16—TOTAL PROJECTED 10YEAR WEBSITE COSTS 206
Cost
(millions)
Time period
Year 1 ...................................
Year 2 ...................................
Year 3 ...................................
Year 4 ...................................
Year 5 ...................................
Year 6 ...................................
Year 7 ...................................
Year 8 ...................................
Year 9 ...................................
Year 10 .................................
PV of 10-year costs, 3% discount rate ..........................
Average annualized costs,
3% discount rate ...............
PV of 10-year costs, 7% discount rate ..........................
Average annualized costs,
7% discount rate ...............
$2,911.0
3,206.8
2,049.8
741.9
741.9
741.9
741.9
741.9
741.9
741.9
11,954.8
1,401.5
10,458.6
1,489.1
c. Mobile App Testing, Remediation,
and O&M Costs
Mobile apps offer convenient access
to State and local government entities’
services, programs, and activities.
According to a 2021 U.S. Census Bureau
report, in 2018, smartphones and tablet
devices were present in 84 percent and
63 percent of U.S. households,
respectively.207 Mobile apps are
relatively new compared to websites,
and a different technology. Existing
tools to evaluate website accessibility
cannot reasonably be applied to mobile
apps and cannot be easily altered for
mobile app evaluation. The tools that do
exist to evaluate mobile app
accessibility are largely geared towards
app developers and often require access
to mobile app coding.208 Literature
related to accessibility for mobile
software is also sparse, which may be
attributed to the relative lack of tools
available to assess mobile app
accessibility compared with the tools
available to assess website
accessibility.209 The Department expects
that these resources will grow as a result
of this rulemaking and a resulting
greater demand for mobile app
accessibility resources.
Under the proposed rule, mobile apps
that State and local government entities
make available to members of the public
or use to offer services, programs, and
activities to members of the public must
adhere to WCAG 2.1 Level AA. To
evaluate costs associated with mobile
app compliance, a simple random
sample of five entities was selected for
each type of government. As described
in more detail in Section 3.3.2,
Government and Website Sampling, in
the accompanying PRIA, governments
were stratified by size when sampled.
State and local Government entities
are obligated to ensure that mobile apps
they make available or use to offer
services, programs, and activities to
members of the public are accessible.
However, as with websites, the
Department only identified mobile apps
created directly for a government. The
Department did not include mobile apps
developed and managed by third parties
and used by the sampled government
entities (‘‘external mobile apps’’)
because the Department was unable to
find existing data or literature on the
cost to remediate these apps, which may
differ substantially from internal mobile
apps. Additionally, many of these
external mobile apps are used by
multiple government clients, so our
sample would overcount these apps.
However, unlike websites, the
Department has not included costs for
third-party mobile apps as a separate
cost, because the necessary data are
unavailable. Exclusion of third-party
developed mobile apps from this
analysis may underestimate costs. The
Department believes this undercount is
offset elsewhere. For example, for State
and local government entities’ mobile
apps used to offer services, programs,
and activities to members of the public,
the Department assumed all noncompliant material would be
remediated, but in reality, some material
that is not actively being used will
likely be archived or removed.
To estimate the number of mobile
apps controlled by State and local
government entities, the Department
calculated the average number of
identified mobile apps per government
entity in the sample, by entity type. The
results of these calculations are
presented below in Table 17. This was
multiplied by the number of
government entities for each respective
government type (see Table 11) to
estimate the number of mobile apps
controlled by each government type.
Estimates of the total number of mobile
apps controlled by each government
type are presented below, in Table 18.
These calculations are discussed further
in Section 3.4.1.1, Mobile App
Estimation, of the PRIA.
TABLE 17—AVERAGE NUMBER OF MOBILE APPS BY GOVERNMENT TYPE 210
Population
less than
50,000
ddrumheller on DSK120RN23PROD with PROPOSALS2
Type of Government entity
State .............................................................................................................................................
County ..........................................................................................................................................
Municipal ......................................................................................................................................
Township ......................................................................................................................................
Special district ..............................................................................................................................
School district ..............................................................................................................................
U.S. territory .................................................................................................................................
Public university ...........................................................................................................................
206 See Section 3.3.9, Total Costs for Website
Testing and Remediation, in the accompanying
PRIA for the Department’s methodology.
207 Michael Martin, Computer and internet Use in
the United States: 2018, American Community
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Survey Reports (Apr. 2021), https://
www.census.gov/content/dam/Census/library/
publications/2021/acs/acs-49.pdf [https://perma.cc/
ST79-PKX5].
208 See id.
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N/A
0.20
0.00
0.00
0.00
0.40
0.50
1.20
209 See
Population
more than
50,000
4.40
0.60
1.00
0.20
[a]
1.40
5.33
[a]
Total
4.40
0.32
0.04
0.00
0.00
0.46
3.40
1.20
id.
Section 3.4.1.1, Mobile App Estimation, in
the accompanying PRIA for the Department’s
methodology.
210 See
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TABLE 17—AVERAGE NUMBER OF MOBILE APPS BY GOVERNMENT TYPE 210—Continued
Population
less than
50,000
Type of Government entity
Population
more than
50,000
Total
Community college ......................................................................................................................
0.20
[ a]
0.20
Total (special districts and higher education) ......................................................................
[a]
[a ]
0.03
Total (all else) .......................................................................................................................
0.10
1.00
0.15
[a] Special
district, public university, and community college data do not include population. For tables in Section VI.A.4.c of this preamble, they
are displayed as entities with populations less than 50,000.
TABLE 18—TOTAL ESTIMATED NUMBER OF MOBILE APPS BY GOVERNMENT TYPE 211
Population
less than
50,000
Type of Government entity
Population
more than
50,000
Total
State .............................................................................................................................................
County ..........................................................................................................................................
Municipal ......................................................................................................................................
Township ......................................................................................................................................
Special district ..............................................................................................................................
School district ..............................................................................................................................
U.S. territory .................................................................................................................................
Public university ...........................................................................................................................
Community college ......................................................................................................................
N/A
421
0
0
0
4,577
1
893
229
224
556
766
31
[a]
1,091
16
[a]
[ a]
224
977
766
31
0
5,668
17
893
229
Total (special districts and higher education) ......................................................................
1,122
[a]
1,122
Total (all else) .......................................................................................................................
4,999
2,684
7,683
[a] Special district, public university, and community college data do not include population. For tables in Section VI.A.4.c of this preamble, they
are displayed as entities with populations less than 50,000.
As the Department describes more
fully in its PRIA, there is a lack of
literature related to accessibility testing
guidelines, tools, and costs for mobile
apps. Because of this, the Department
assumed that costs to test and modify a
mobile app for compliance with WCAG
2.1 Level AA success criteria would be
a percentage of the cost to develop an
‘‘average’’ mobile app, based on the
limited literature the Department found
related to making mobile apps
accessible. Using best professional
judgment, the Department assumed that
costs to test and modify an existing
mobile app for accessibility will be
greater than half of the cost to develop
a mobile app from scratch, but less than
the total cost of developing a new
mobile app. Specifically, the
Department assumed that the cost to test
and modify a mobile app for
accessibility will be 65 percent of the
cost to develop a new mobile app. The
Department seeks the public’s input on
this assumption. The Department used
mobile app development cost data made
public by the mobile app developer SPD
Load in 2022 to estimate an average
mobile app development cost of
$105,000.212 This results in an average
mobile app accessibility testing and
modification cost of $68,250 (65 percent
of $105,000). Some mobile apps may be
more complex than others, and therefore
more expensive to test and modify for
accessibility.213 The Department thus
used file size as a proxy for mobile app
complexity in its analysis.
Table 19 shows the average costs
associated with testing and modifying
an existing mobile app to conform with
WCAG 2.1 Level AA. Generally, the
estimated costs differ due to variability
in the file size. The average cost of
initial mobile app testing and
remediation was then multiplied by the
total estimated number of mobile apps
for each respective government type and
size (see Table 18) to generate an
estimated cost to all government entities
in each respective category (Table 20).
Underlying calculations to these tables
are discussed further in Section 3.4,
Mobile App Testing, Remediation, and
O&M Costs, of the accompanying PRIA.
TABLE 19—AVERAGE COST TO MODIFY A MOBILE APP BY GOVERNMENT TYPE 214
Population
less than
50,000
ddrumheller on DSK120RN23PROD with PROPOSALS2
Type of Government entity
State .........................................................................................................................................................................
County ......................................................................................................................................................................
Municipal ..................................................................................................................................................................
Township ..................................................................................................................................................................
211 Id.
212 SPD
Load, How Much Does It Cost to Develop
an App in 2022? Cost Breakdown, https://
spdload.com/blog/app-development-cost/ [https://
perma.cc/Y2RM-X7VR].
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213 Sudeep Srivastava, What Differentiates a
$10,000 Mobile App From a $100,000 Mobile App?,
appinventiv (May 6, 2022), https://
appinventiv.com/blog/mobile-app-developmentcosts-difference/ [https://perma.cc/5RBB-W7VP].
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N/A
$59,356
N/A
N/A
Population
more than
50,000
$61,045
50,478
121,922
41,624
214 See Section 3.4, Mobile App Testing,
Remediation, and O&M Costs, in the accompanying
PRIA for the Department’s methodology.
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TABLE 19—AVERAGE COST TO MODIFY A MOBILE APP BY GOVERNMENT TYPE 214—Continued
Population
less than
50,000
Type of Government entity
Population
more than
50,000
Special district ..........................................................................................................................................................
School district ..........................................................................................................................................................
U.S. territory .............................................................................................................................................................
Public university .......................................................................................................................................................
Community college ..................................................................................................................................................
a N/A
68,250
134,991
a 52,185
a 77,478
[ a]
61,670
65,971
[a]
[a]
Total (special districts and higher education) ..................................................................................................
64,832
[ a]
Total (all else) ...................................................................................................................................................
87,532
67,118
a Special
district, public university, and community college data do not include population. For tables in Section VI.A.4.c of this preamble, they
are displayed as entities with populations less than 50,000.
TABLE 20—INITIAL MOBILE APP COSTS
[Millions] 215
Population
less than
50,000
Type of Government entity
Population
more than
50,000
Total
State .............................................................................................................................................
County ..........................................................................................................................................
Municipal ......................................................................................................................................
Township ......................................................................................................................................
Special district ..............................................................................................................................
School district ..............................................................................................................................
U.S. territory .................................................................................................................................
Public university ...........................................................................................................................
Community college ......................................................................................................................
N/A
$25.0
0.0
0.0
a 0.0
312.4
0.1
a 46.6
a 17.8
$13.7
28.0
93.4
1.3
[a ]
67.3
1.1
[a ]
[a ]
$13.7
53.0
93.4
1.3
0.0
379.7
1.2
46.6
17.8
Total (special districts and higher education) ......................................................................
64.3
[a]
64.3
Total (all else) .......................................................................................................................
337.5
204.7
542.3
a Special
ddrumheller on DSK120RN23PROD with PROPOSALS2
district, public university, and community college data do not include population. For tables in Section VI.A.4.c of this preamble, they
are displayed as entities with populations less than 50,000.
Costs for the proposed rule are
expected to be incurred at different
times for each type of government entity
because of differences in proposed
implementation timelines. Government
entities serving populations over 50,000
will have two years to implement the
proposed rule, and costs are assumed to
be distributed evenly across the two
implementation years. Government
entities serving populations of less than
50,000 and special districts will have
three years to implement the proposed
rule, and costs are assumed to be
distributed evenly among the three
implementation period years. Public
postsecondary institutions are generally
associated with large governments, and
consequently, for purposes of this
analysis, the Department assumes that
public postsecondary institutions will
have two years to implement the rule.
Additionally, the Department
assumed that State and local
Government entities will incur O&M
costs associated with accessibility
maintenance starting after the proposed
215 Id.
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rule’s implementation period. The
Department, using best professional
judgment due to the absence of
applicable data, assumed that added
O&M costs associated with accessible
mobile apps are equal to 10 percent of
O&M costs associated with an average
mobile app. The Department used a
publicly available data range to
calculate average annual mobile app
O&M costs and estimate the annual cost
of O&M for an average mobile app.216
The estimated average annual cost of
O&M per mobile app ($375) was
multiplied by 10 percent to calculate
expected additional O&M costs incurred
as a result of compliance with the
proposed rule ($37.50). The Department
then multiplied expected additional
O&M costs per app by the total
estimated number of mobile apps.
Undiscounted costs of compliance with
the proposed rule over a 10-year period,
PV of costs, and average annualized
216 Michael Georgiou, Cost of Mobile App
Maintenance in 2022 and Why It’s Needed,
Imaginovation Insider (June 30, 2022), https://
imaginovation.net/blog/importance-mobile-appmaintenance-cost/ [https://perma.cc/UY5K-6FKC].
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costs are presented in Table 21 and
discussed further in Section 3.4, Mobile
App Testing, Remediation, and O&M
Costs, of the accompanying PRIA.
TABLE 21—TIMING OF MOBILE APP
COSTS
[Millions] 217
Time period
Year 1 ...................................
Year 2 ...................................
Year 3 ...................................
Year 4 ...................................
Year 5 ...................................
Year 6 ...................................
Year 7 ...................................
Year 8 ...................................
Year 9 ...................................
Year 10 .................................
PV of 10-year costs, 3% discount rate ..........................
Average annualized costs,
3% discount rate ...............
PV of 10-year costs, 7% discount rate ..........................
Costs
$247.1
247.1
112.6
0.3
0.3
0.3
0.3
0.3
0.3
0.3
577.7
67.7
540.1
217 See Section 3.4, Mobile App Testing,
Remediation, and O&M Costs, in the accompanying
PRIA for the Department’s methodology.
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Given that website accessibility
scanning software is not compatible
with password-protected sites, costs to
[Millions] 217
remediate online course content were
estimated with a different method. As
Time period
Costs
an overview, the Department used a
probabilistic model to estimate the
Average annualized costs,
7% discount rate ...............
76.9 proportion of courses that would require
remediation during the first year of
remediating course content under the
d. Postsecondary Education
proposed rule (the first year after
The proposed rule distinguishes
implementation). As discussed in more
between public postsecondary
detail in the full PRIA, the Department
institutions’ public-facing websites,
determined as a result of its modeling
mobile apps, and password-protected
that virtually all remaining courses
course material. Costs were estimated
would be remediated in the second year
separately for these three categories.
of remediating course content. The
Public-facing websites were assessed
Department does not expect that courses
for current levels of compliance using
will be made accessible in a significant
SortSite, a software application the
way in the absence of the rule, though
Department used to assess accessibility
this assumption is based on literature on
in tandem with manual testing.218 For
trends in web accessibility rather than
this cost component, unstratified
statistical modeling. The high rate at
random samples were drawn consisting which courses will need remediation
of 10 public four-year universities and
under the proposed rule is a notable
10 public community colleges.219
finding of the Department’s analysis,
Whereas the Department searched for
which has major implications for
and scanned other State and local
students with disabilities. The
government entities’ secondary
Department also conducted sensitivity
websites, only the main site was
analyses to ensure the PRIA accounts for
scanned for postsecondary institutions.
a range of possibilities on course
Instead, the Department estimated that
remediation.
O&M costs for course content were
postsecondary institutions’ secondary
estimated at a higher annual rate than
websites would incur testing and
remediation costs equal to 1.1 times the for websites to account for new courses
that may be introduced, additional
testing and remediation costs of their
captioning associated with video
main websites. Postsecondary
lectures, and the like. This is further
institutions were found to have main
described in the Department’s full PRIA.
website costs that were most similar to
Under the proposed rule, passwordthose of large school districts and large
protected postsecondary course content
counties, and for those two types of
government entities, secondary websites (e.g., course content provided through
third-party learning management
incur 1.1 times the cost of the main
systems) must be made accessible when
websites, on average. Large school
districts and large counties also have 5.7 an institution is on notice that a student
with a relevant disability is enrolled in
times as many secondary websites as
a particular class. Using data from the
main websites and their secondary
2021 SIPP, the Department estimated
websites have 0.25 times the number of
the prevalence of students with either a
PDFs as their main websites. Those
hearing, vision, manual dexterity, or
ratios were used in estimating numbers
cognitive disability. The Department
of higher education secondary websites
estimated prevalence values for
and secondary website PDF costs. For a
individuals aged 18–22 to account for
more complete discussion of the
the conventional school age population
Department’s methodology, please see
that attends four-year institutions and
Section 3.5.1, Postsecondary Education
used an age range of 17–29 for
Overview, of the accompanying PRIA.
community college students.220 The
Postsecondary institutions’ mobile
app costs were assessed separately using Department recognizes that these age
ranges do not represent the entire
the Department’s methodology for
postsecondary population, and that they
mobile app calculation. This is
may underestimate disability prevalence
discussed in full in the Department’s
by excluding older populations who
PRIA.
may be more likely to have disabilities.
However, given the need to define the
218 The Department’s basis for selecting SortSite,
population’s age in order to estimate
as well as its methods for using SortSite in tandem
ddrumheller on DSK120RN23PROD with PROPOSALS2
TABLE 21—TIMING OF MOBILE APP
COSTS—Continued
with manual testing, are described in more detail
in the full PRIA.
219 Technical colleges were included with
community colleges.
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220 The range 17–29 was calculated from National
Center for Education Statistics data and includes 80
percent of the community college population.
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51997
disability prevalence, the Department
feels that these are appropriate ranges
for this cost estimation.
The Department understands that
only a portion of students with
disabilities will require course
remediation. Data in the High School
Longitudinal Study (‘‘HSLS’’) of 2009,
conducted by the National Center for
Education Statistics (‘‘NCES’’), suggests
that 37 percent of students with
disabilities report their disability to
their college or university.221 Applying
this proportion to the disability
prevalence rates for students with a
vision, hearing, dexterity, or cognitive
disability, yields the percent of
individuals aged 18–22 and 17–29 who
will report a relevant disability to their
college or university. However, because
the HSLS reports the fraction of
students with any disability who report
their disability to the school, and not
the fraction of students with either a
vision, hearing, dexterity, or cognitive
disability who report their disability to
the school, this number may be an overor underestimate depending on the
variability in the likelihood that
students with specific disabilities report
their disability to the school. To
estimate average class sizes, the
Department used Common Data Set
(‘‘CDS’’) reports from 21 public
universities and 10 community colleges,
resulting in an average of 29.8 students
per class in public universities and 20.4
students per class in community
colleges.222
When estimating the percent of
courses that will be remediated in each
year, the Department found that, within
two years following implementation,
virtually all postsecondary courses will
have been remediated. Specifically, the
probability function discussed in
Section 3.5.2.2, Probabilistically
Calculating the Rate of Course
Remediation, in the Department’s PRIA
shows that by the end of year four (two
years after postsecondary schools begin
to remediate course content), 96 percent
of courses offered by public four-year
and postgraduate institutions and 90
percent of courses offered by
community colleges will have been
remediated. The Department assumes
that despite having some courses for
which remediation has not been
requested by year five, postsecondary
institutions will finish remediation on
their own to preempt requests in the
221 Institute of Education Sciences, Use of
Supports Among Students with Disabilities and
Special Needs in College Supp. Tbl. 2 (Apr. 2022),
https://nces.ed.gov/pubs2022/2022071/index.asp
[https://perma.cc/RSY3-TQ46].
222 See Common Data Set Initiative, https://
commondataset.org/ (last visited June 15, 2023).
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following year. For institutions that wait
to remediate outstanding courses, the
costs will be negligible because the
number of outstanding courses is
projected to be low, and because in year
three entities will likely have ensured
that their LMS supports accessibility
and that their instructors have
appropriate tools and training. These
findings about the rapidity of course
remediation speak to the necessity and
importance of this rule. Table 22 shows
the assumptions, data, and methods
from Section 3.5, Postsecondary
Education, of the accompanying PRIA to
estimate course costs.
TABLE 22—COURSE REMEDIATION COSTS 223
Public
university
Description
ddrumheller on DSK120RN23PROD with PROPOSALS2
Age range ..................................................................................................
Average class size .....................................................................................
Prevalence of disabilities ...........................................................................
Share of students with a disability who notify school ...............................
Share of students who have a relevant disability and notify school .........
Total number of courses offered ...............................................................
Number of courses remediated first semester ..........................................
Cost per course .........................................................................................
First semester cost for all institutions (millions) ........................................
First semester mean cost per institution (millions) ....................................
Number of courses remediated second semester ....................................
Second semester course remediation costs (millions) ..............................
First year cost (millions) ............................................................................
Courses remediated in Year 2 ..................................................................
Year 2 course remediation cost (millions) .................................................
Total costs to remediate all courses (millions) ..........................................
Mean cost per institution to remediate all courses (millions) ....................
Mean cost per student to remediate all courses .......................................
Yearly O&M cost per course .....................................................................
Total yearly O&M cost (millions) ...............................................................
Mean O&M cost per institution ..................................................................
Community
college
18–22
29.8
0.13
0.37
0.05
1,803,277
900,406
$1,690
$1,521.6
$2.0
563,214
$951.8
$2,473.4
339,656
$574.0
$3,047.4
$4.1
$340.7
$253
$609.5
$819,198
Source
17–29
20.4
0.12
0.37
0.04
965,097
383,766
$1,690
$648.5
$0.6
269,294
$455.1
$1,103.6
312,037
$527.3
$1,630.9
$1.4
$341.4
$253
$326.2
$285,380
NCES.
CDS Data.
SIPP Data.
HSLS.
Calculation.
Calculation.
Calculation.
Farr et al. (2009).224 NCDAE.225
Calculation.
Calculation.
Calculation.
Calculation.
Calculation.
Calculation.
Calculation.
Calculation.
Calculation.
Calculation.
Calculation.
Calculation.
Calculation.
The Department calculated the
proportion of classes requiring
remediation on a per school basis using
a methodology outlined in the PRIA,
and with that number calculated the
total number of classes offered by a
school requiring remediation. The
Department developed a per-course cost
estimate because it believes that
password-protected course content is
unique in its combination of level of
complexity, volume of material, and
distribution of content compared to
other government web content. These
qualities distinguish it from other
government entities’ web contents,
which necessitate a separate estimation
approach. Though literature on the cost
of remediating course content to WCAG
2.1 Level AA is sparse, the Department
used findings from Farr et al. (2009) 226
and the National Center on Disability
and Access to Education (‘‘NCDAE’’)
GOALS Course Cost Case Study
(2014),227 to estimate the cost to
remediate a course to be $1,690. Each of
these studies presented ranges of cost
estimates for ‘‘simple’’ and ‘‘complex’’
courses.228 To generate an average
course cost, the Department took the
midpoint of the given ranges and
generated a weighted average from the
two studies’ ‘‘simple’’ and ‘‘complex’’
course cost estimates using survey data
from Farr et al. (2009) that estimated 40
percent of classes to be complex, and 60
percent of classes to be simple.229 A full
explanation of the Department’s
methodology on course cost estimates
can be found in Section 3.5.2.3 of the
accompanying PRIA.
The Department then multiplied the
sum of the number of all institutions’
first semester courses requiring
remediation by the cost per course to
estimate a total first-semester cost to
remediate courses. The Department
expects the first semester to be the most
expensive as it will be the semester with
the smallest amount of existing
compliance, and therefore the greatest
number of classes that are out of
compliance with WCAG 2.1 Level AA.
In subsequent semesters, those courses
that have been previously remediated
will already be accessible, meaning the
total pool of classes needing
remediation will decrease over time.
The Department estimates that 46
percent of all classes offered between
community colleges and four-year and
postgraduate institutions will be
remediated in the first semester, costing
a total of $2.2 billion. On a per-student
basis, this is $170 for four-year and
postgraduate institutions and $136 for
community colleges. A full explanation
of the Department’s methodology can be
223 See Section 3.5, Postsecondary Education, in
the accompanying PRIA for the Department’s
methodology.
224 Beverly Farr et al., A Needs Assessment of the
Accessibility of Distance Education in the
California Community College System Part II: Costs
and Promising Practices Associated with Making
Distance Education Courses Accessible, MPR
Associates, Inc. (May 2009), https://files.eric.ed.gov/
fulltext/ED537862.pdf [https://perma.cc/LFT7R2CL].
225 Cyndi Rowland, GOALS Cost Case Study: Cost
of Web Accessibility in Higher Education, Gaining
Online Accessible Learning through Self-Study
(Dec. 2014), https://www.ncdae.org/documents/
GOALS_Cost_Case_Study.pdf [https://perma.cc/
UH6V-SBTU].
226 Beverly Farr et al., A Needs Assessment of the
Accessibility of Distance Education in the
California Community College System Part II: Costs
and Promising Practices Associated with Making
Distance Education Courses Accessible, MPR
Associates, Inc. (May 2009), https://files.eric.ed.gov/
fulltext/ED537862.pdf [https://perma.cc/LFT7R2CL].
227 Cyndi Rowland et al., GOALS Cost Case
Study: Cost of Web Accessibility in Higher
Education, Gaining Online Accessible Learning
through Self-Study (Dec. 2014), https://
www.ncdae.org/documents/GOALS_Cost_Case_
Study.pdf [https://perma.cc/UH6V-SBTU].
228 ‘‘Simple’’ courses are loosely defined as
courses that mostly house images and documents.
229 See Farr et al., at 5. As part of this study,
experts were interviewed on online learning to
estimate the proportion of classes which are simple
or complex. These estimates are discussed
throughout the paper and are first referenced on
page 5.
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found in Section 3.5, Postsecondary
Education of the accompanying PRIA.
To calculate second-semester classes
requiring remediation, the Department
used the same proportion of classes
needing remediation but calculated a
new number of classes that are eligible
for remediation. The Department
estimates that there is a 50 percent
overlap in classes offered during
semester one and semester two. Using
that estimate, the Department calculated
the number of second semester classes
eligible for remediation as half the
number of classes in the first semester
plus the courses which are offered both
semesters but were not remediated in
semester one. The Department estimates
that 563,214 public four-year and
postgraduate courses and 269,294
community college courses will need to
be remediated in semester two, which
will cost a total of $1.4 billion. Because
the Department’s estimated rate of
remediation is relatively high (the
modeling above yields a 75 percent
remediation rate in semester one for
four-year institutions, and a 60 percent
remediation rate in semester one for
community colleges), the Department
assumed that by the end of the second
year of remediation, all postsecondary
institutions will have remediated all
currently offered courses. For the
Department’s detailed methodology, see
Section 3.5.2.2, Probabilistically
Calculating the Rate of Course
Remediation, of the accompanying
PRIA.
Following this remediation period,
the Department estimates yearly O&M
costs to be 15 percent of initial
remediation costs, amounting to $253
per class. As discussed more fully in its
51999
PRIA, the Department estimates general
O&M costs to be 10 percent of total
remediation costs. Given that course
content often contains video-based
lectures requiring closed captioning,
and content that is updated more
frequently than general web content, the
Department assumes a 50 percent higher
O&M cost for course content than for
general web content. Additionally, this
50 percent higher estimate accounts for
the cost of developing new accessible
courses. The full 10-year costs of the
rule for course remediation and O&M
costs are presented in Table 23, along
with PV and annualized costs. A full
explanation of the Department’s
methodology can be found in Section
3.5, Postsecondary Education, of the
PRIA.
TABLE 23—PROJECTED 10-YEAR COSTS FOR COURSE REMEDIATION 230
[Millions]
Public
university
Institution type
Year 1 ..........................................................................................................................................
Year 2 ..........................................................................................................................................
Year 3 ..........................................................................................................................................
Year 4 ..........................................................................................................................................
Year 5 ..........................................................................................................................................
Year 6 ..........................................................................................................................................
Year 7 ..........................................................................................................................................
Year 8 ..........................................................................................................................................
Year 9 ..........................................................................................................................................
Year 10 ........................................................................................................................................
PV, 3% discount rate ...................................................................................................................
PV, 7% discount rate ...................................................................................................................
Annualized cost, 3% discount rate ..............................................................................................
Annualized cost, 7% discount rate ..............................................................................................
ddrumheller on DSK120RN23PROD with PROPOSALS2
e. Elementary and Secondary Class or
Course Content Remediation
Under the proposed rule, passwordprotected course content (e.g., content
provided through third-party learning
management systems) in a public
elementary or secondary school
generally must be made accessible when
a student with a disability is enrolled in
the course or when a student is enrolled
whose parent has a disability. This
section summarizes the Department’s
analysis of the costs for elementary and
secondary education institutions to
make this content accessible, which is
discussed in depth in Section 3.6,
Elementary and Secondary Course
Content Remediation, of the PRIA.
Much of the methodology used is
similar to that for course remediation
costs for postsecondary education. The
230 See Section 3.5, Postsecondary Education, in
the accompanying PRIA for the Department’s
methodology.
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Department estimates that annualized
costs with a 3 percent discount rate for
elementary and secondary education
institutions are $195 million.
Additionally, these institutions will
incur some O&M costs after
implementation.
NCES publishes a list of all public
schools in the United States with
enrollment counts by grade level for
kindergarten (grade K) through 12th
grade.231 Best available estimates
suggest 66 percent of all schools (public
and private) have an LMS and the
Department assumed that this number
will not change significantly in the next
10 years in the presence or absence of
231 Institute of Education Sciences, ELSI
Elementary/Secondary Information System 2020–21
Public School Student Enrollments by Grade,
National Center for Education Statistics, https://
nces.ed.gov/ccd/elsi/default.aspx. A Perma archive
link was unavailable for this citation.
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$0
0
2,473
1,069
609
609
609
609
609
609
6,147
5,051
721
719
Community
college
$0
0
1,104
748
326
326
326
326
326
326
3,245
2,658
380
378
Total
$0
0
3,577
1,817
936
936
936
936
936
936
9,391
7,708
1,101
1,097
this rule.232 The Department made this
assumption due to a lack of available
data, and the Department notes that
even if there were an increase in the
percent of schools with an LMS, this
would increase both costs and benefits,
likely resulting in a nominal impact to
the net benefits of the rule. Using these
data, the number of public schools with
an LMS was computed by grade level.
The Department estimated the number
of unique classes or courses offered per
school and per grade level, and then
used this value to calculate the total
number of LMS classes or courses that
must be remediated in each school.233
232 Frank Catalano, Pandemic Spurs Changes in
the Edtech Schools Use, From the Classroom to the
Admin Office, EdSurge (Jan. 2021), https://
www.edsurge.com/news/2021-01-26-pandemicspurs-changes-in-the-edtech-schools-use-from-theclassroom-to-the-admin-office [https://perma.cc/
N2Y3-UKM2].
233 To the extent that the percentage of public
schools with an LMS is lower than the percentage
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Table 24 presents the assumptions for
the number of unique LMS classes or
courses offered per grade level, based on
the Department’s best professional
judgment. The number of unique classes
or courses is lower for earlier grade
levels 234 and increases in higher grade
levels as education becomes more
departmentalized (i.e., students move
from teacher to teacher for their
education in different subjects) and
schools generally introduce more
elective offerings as students progress
toward grade 12.235
TABLE 24—CALCULATION OF ELEMENTARY AND SECONDARY CLASS OR COURSE REMEDIATION COSTS, BY GRADE LEVEL
Number of
schools [a]
Grade level
Number of
schools with
an LMS [b]
Number of
LMS courses
per grade level
Number of
courses to
remediate
Cost to
remediate a
year-long
course
Total cost
(millions)
K ...............................................................
1 ...............................................................
2 ...............................................................
3 ...............................................................
4 ...............................................................
5 ...............................................................
6 ...............................................................
7 ...............................................................
8 ...............................................................
9 ...............................................................
10 .............................................................
11 .............................................................
12 .............................................................
52,155
52,662
52,730
52,661
52,363
50,903
35,032
29,962
30,161
23,843
24,200
24,322
24,304
34,422
34,757
34,802
34,756
34,560
33,596
23,121
19,775
19,906
15,736
15,972
16,053
16,041
1
1
1
1
1
7
7
7
7
14
14
14
14
34,422
34,757
34,802
34,756
34,560
235,172
161,848
138,424
139,344
220,309
223,608
224,735
224,569
$182
182
182
182
182
364
364
364
364
994
994
994
994
$6.3
6.3
6.3
6.3
6.3
85.7
59.0
50.5
50.8
219.0
222.3
223.4
223.2
Total ..................................................
N/A
N/A
N/A
N/A
N/A
1,165.4
[a] This represents the number of schools with nonzero enrollment in the listed grade level. As such, a single school can be represented on
multiple rows.
[b] This represents the number of schools with an LMS and nonzero enrollment in the listed grade level.
As discussed in its assessment of
postsecondary education costs, the
Department estimated costs to remediate
a single postsecondary course using two
estimates from Farr et al. (2009) 236 and
the NCDAE GOALS Course Case
Study.237 Those papers also estimate the
cost of remediating a ‘‘simple’’ college
course. The Department assumes that a
high school course is equivalent in its
complexity to a ‘‘simple’’ college course
and used estimates on time spent on
homework to scale course costs for
different grade levels. For a more
complete discussion of course cost
estimates, please see Section 3.6 of the
accompanying PRIA. Summing across
all grade levels yields total costs of $1.2
billion. Table 25 presents the costs
incurred in the first 10 years following
promulgation of the rule, by entity type.
For each year after completing class or
course remediation, the Department
assumed elementary and secondary
school districts would incur an O&M
cost equal to 10 percent of the initial
remediation cost. The Department
assumes costs will not be incurred until
the year required by the rule (Year 4 for
small entities and Year 3 for large
entities) because classes or courses
would not be remediated until
necessary. The Department expects that
elementary and secondary classes or
courses will be remediated at a faster
rate than postsecondary courses, given
that the proposed rule generally requires
elementary and secondary educational
web content to be accessible if requested
by either the child or their parent(s),
whereas postsecondary course
provisions in the rule do not provide for
parent(s) to request accessible web
content. As such, the Department
expects that virtually all class or course
content will be remediated by
elementary and secondary educational
institutions in the first year required
under the rule.
TABLE 25—PROJECTED 10-YEAR COURSE REMEDIATION COSTS
[Millions]
Time period
ddrumheller on DSK120RN23PROD with PROPOSALS2
Year
Year
Year
Year
Year
1
2
3
4
5
Cost for small
school districts
Cost for large
school districts
$0
0
0
614
61
$0
0
551
55
55
..........................................................................................................................................
..........................................................................................................................................
..........................................................................................................................................
..........................................................................................................................................
..........................................................................................................................................
of private schools, the analysis presented here
overestimates the true elementary and secondary
class or course remediation costs.
234 Standardized curricula and relatively lower
mean enrollments in earlier grade levels tend to
decrease the number of unique class or course
offerings per grade level, which would reduce the
number of LMS classes or courses that must be
remediated.
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235 According to NCES, in the 2017–2018 school
year, 24 percent of elementary school classes were
departmentalized, compared to 93 percent of
middle schools and 96 percent of high schools.
National Teacher and Principal Survey, NCES,
https://nces.ed.gov/surveys/ntps/tables/ntps1718_
fltable06_t1s.asp [https://perma.cc/8XAK-XK4L].
236 Beverly Farr et al., A Needs Assessment of the
Accessibility of Distance Education in the
California Community College System Part II: Costs
and Promising Practices Associated with Making
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Total costs
$0
0
551
670
117
Distance Education Courses Accessible, MPR
Associates, Inc. (May 2009), https://files.eric.ed.gov/
fulltext/ED537862.pdf [https://perma.cc/LFT7R2CL].
237 Cyndi Rowland et al., GOALS Cost Case
Study: Cost of web accessibility in higher education,
Gaining Online Accessible Learning through SelfStudy, (Dec. 2014), https://www.ncdae.org/
documents/GOALS_Cost_Case_Study.pdf [https://
perma.cc/UH6V-SBTU].
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Federal Register / Vol. 88, No. 149 / Friday, August 4, 2023 / Proposed Rules
TABLE 25—PROJECTED 10-YEAR COURSE REMEDIATION COSTS—Continued
[Millions]
Time period
Cost for small
school districts
Cost for large
school districts
61
61
61
61
61
842
692
99
99
55
55
55
55
55
818
692
96
99
ddrumheller on DSK120RN23PROD with PROPOSALS2
Year 6 ..........................................................................................................................................
Year 7 ..........................................................................................................................................
Year 8 ..........................................................................................................................................
Year 9 ..........................................................................................................................................
Year 10 ........................................................................................................................................
PV, 3% discount rate ...................................................................................................................
PV, 7% discount rate ...................................................................................................................
Annualized cost, 3% discount rate ..............................................................................................
Annualized cost, 7% discount rate ..............................................................................................
f. Costs for Third-Party Websites and
Mobile Apps
Some government entities use thirdparty websites and mobile apps to
provide government services, programs,
and activities. The Department
estimated costs to modify existing thirdparty websites that are used to provide
government services. Third-party costs
related to mobile apps are unquantified
because the Department was unable to
find existing data or literature on the
subject.
These numbers should be interpreted
with caution because they include
significant uncertainty. Limited
information exists regarding the number
of third-party websites and mobile apps
employed by government entities.
Additionally, little research has been
conducted assessing how government
entities use third-party website and
mobile app services.
To estimate costs incurred from thirdparty website compliance, the
Department used a convenience subsample of the full sample of government
entities. This sub-sample includes 106
government entities and was not
stratified to ascertain representativeness
among various government entities. The
Department used SortSite inventory
reports to identify third-party websites
that provide government services on
behalf of sampled government entities.
Counts were then adjusted to reflect that
some third-party websites are used by
more than one government. For each
government entity type, the Department
calculated the ratio of third-party
websites in the sample to total
government websites in the sample.
Across all entity types, the average ratio
is 0.042, or 4.2 percent.
The Department reviewed the
literature for reputable estimates of the
average cost of modifying a third-party
website that provides government
services to the public for WCAG 2.1 AA
compliance. In the absence of existing
reputable estimates, the Department
opted to use average government
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website testing and remediation costs
generated in this study as an
approximation. Government website
testing and remediation cost estimates
for each government entity type were
multiplied by the third-party to
government website ratios to estimate
costs from third-party website
compliance with WCAG 2.1 AA.
In aggregate, there are estimated to be
0.04 third-party websites for every
government website. If all costs were
passed along to governments,
governments would incur additional
costs for remediating third-party
websites equivalent to about 4 percent
of the costs to test and remediate their
own websites. The present value of total
10-year costs incurred from third-party
website compliance is estimated to be
$671.7 million at a discount rate of 3
percent and $587.8 at a discount rate of
7 percent. These values are displayed in
Table 26.
TABLE 26—PROJECTED TOTAL COSTS
OF
REMEDIATING
THIRD-PARTY
WEBSITES
[Millions]
Total costs
(all entities)
Time period
Year 1 ...................................
Year 2 ...................................
Year 3 ...................................
Year 4 ...................................
Year 5 ...................................
Year 6 ...................................
Year 7 ...................................
Year 8 ...................................
Year 9 ...................................
Year 10 .................................
PV of 10-year costs, 3% discount rate ..........................
Annualized costs, 3% discount rate ..........................
PV of 10-year costs, 7% discount rate ..........................
Annualized costs, 7% discount rate ..........................
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$165.2
181.9
112.1
41.6
41.6
41.6
41.6
41.6
41.6
41.6
671.7
78.7
587.8
83.7
Total costs
117
117
117
117
117
1,660
1,384
195
197
g. Sensitivity and Uncertainty Analyses
of Costs
The Department’s cost estimates rely
on a variety of assumptions based on
literature and other information that, if
changed, could impact the cost burden
to different government entities. To
better understand the uncertainty
behind its cost estimates, the
Department performed several
sensitivity analyses on key assumptions
in its cost model. A full summary of the
Department’s high and low-cost
estimates is in Table 28. Other
assumptions not altered here also
involve a degree of uncertainty and so
these low and high estimates should not
be considered absolute bounds.
For website testing and remediation
costs, the Department adjusted its
estimate of the effectiveness of
automated accessibility checkers such
as SortSite at identifying accessibility
errors. In its primary analysis, the
Department relied on its own manual
assessment of several web pages to
estimate the fraction of remediation
time that the errors SortSite caught
accounted for among all errors present.
This approach found that SortSite
caught errors corresponding to 50.6
percent of the time needed to remediate
a website, leading to a manual
adjustment factor of 1.98. This manual
adjustment factor was multiplied by the
remediation time estimated using the
SortSite output for each website in the
sample. Vigo, Brown, and Conway
(2013), by contrast, found that SortSite
correctly identified 30 percent of the
accessibility errors on a given
website.238 This finding is not
238 Markel Vigo et al., Benchmarking Web
Accessibility Evaluation Tools: Measuring the Harm
of Sole Reliance on Automated Tests, International
Cross-Disciplinary Conference on Web Accessibility
(May 2013), https://www.researchgate.net/profile/
Markel-Vigo/publication/262352732_
Benchmarking_web_accessibility_evaluation_tools_
Measuring_the_harm_of_sole_reliance_on_
automated_tests/links/56333eee08ae911fcd4a99a7/
Benchmarking-web-accessibility-evaluation-tools-
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necessarily inconsistent with the results
of the Department’s analysis, however,
since the paper’s authors merely count
instances of errors, without considering
the relative severity of errors.
Nevertheless, the Department
conservatively replicated its analysis
using the 30 percent estimate for
SortSite’s comprehensiveness, which
amounts to an adjustment factor of 3.33.
This altered assumption resulted in a
10-year total website testing and
remediation cost of $19.2 billion at a 3
percent discount rate, which is $7.2
billion more than the primary estimate
of $12.0 billion. The analysis for
estimating costs of remediating thirdparty websites was replicated using the
same altered assumption of SortSite’s
comprehensiveness, resulting in a 10year total third-party website testing and
remediation cost of $1.1 billion. This is
$400 million more than the primary
estimate of $672 million.
The Department also reexamined its
assumptions concerning PDFs that State
and local government entities would
choose to remediate. In the primary
analysis, it was assumed that only those
PDFs that had last been modified prior
to 2012 would be removed or archived
rather than remediated. This
assumption resulted in an estimate that
15 percent of PDFs currently hosted on
government websites would be taken
down or archived. To approximate an
upper bound on the number of PDFs
government entities would choose to
archive, the Department reconducted its
website cost analysis with the
assumption that 50 percent of PDFs on
State and local government entities’
websites would be archived or removed
rather than remediated. This calculation
resulted in website costs of $11.6 billion
discounted at 3 percent over 10 years,
$311 million less than the primary
estimate of $12.0 billion. Once again,
the analysis for estimating costs of
remediating third-party websites
(described in Section VI.A.4.f of this
preamble) was replicated using this
altered PDF archival rate, resulting in a
10-year total third-party website testing
and remediation cost of $654 million.
This is $17 million less than the
primary estimate of $672 million.
For postsecondary course remediation
cost, the Department calculated costs
over an increased timeline to generate a
low-cost estimate. In its initial
calculations, the Department estimated
disability prevalence using SIPP data,
calculated that the majority of classes
will be remediated in the first year
Measuring-the-harm-of-sole-reliance-on-automatedtests.pdf . A Perma archive link was unavailable for
this citation.
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following the implementation of the
rule, and determined that any
outstanding classes will be remediated
in the second year. However, the
prevalence rates used from SIPP data are
higher estimates than estimates from the
American Community Survey (‘‘ACS’’).
If the true disability prevalence of the
college population is lower than was
estimated for these analyses, then fewer
courses will need remediation per year.
The Department found that in a scenario
where one third of courses are
remediated per year, the annualized cost
at a 3 percent discount rate is $992
million, $109 million less than its
primary estimate.239
To generate a high-cost estimate for
higher education, the Department
evaluated a higher per-course
remediation cost. In its primary
estimates, the Department used data
from two studies that estimated costs to
make a course accessible. These studies
were conducted in 2009 and 2014
respectively, and the online landscape
of postsecondary education has changed
since then. COVID–19 and the
subsequent distance learning at higher
education institutions may have
increased the amount of course content
that is offered through online portals. If
this is the case, it is possible that there
is more content that needs to be
remediated than there was at the time of
the studies on which the Department
bases its course cost estimates, and that
because of that there is less accessible
course content.240 To account for this,
the Department used the higher
estimates for complex course
remediation given in Farr et al. (2009)
and the GOALS Cost Case Study from
the NCDAE to estimate a cost of $1,894
per course (compared with $1,690 in the
primary estimate), and an O&M cost of
$284 per course (compared with $253 in
the primary estimate). Under these
conditions, the Department found the
annualized cost of course content
remediation to be $1.21 billion, $112
million more than its primary estimates.
To estimate class or course
remediation costs for elementary and
secondary institutions, the Department
made assumptions about the number of
LMSs that students interface with at
each grade level. In addition, the
Department had to estimate the average
cost to remediate each of those LMS’s
239 The Department chose 1⁄3 to create a scenario
with a more flexible remediation timeline, which
implies that all courses get remediated within three
years instead of two.
240 Conversely, it is also possible that a shift to
online learning has made the higher education
community more aware of web accessibility issues,
and therefore increased the rate of WCAG 2.1
compliance.
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content to be compliant with WCAG 2.1
Level AA. The Department performed a
sensitivity analysis on these
assumptions to create upper and lower
bounds on cost.
For the upper bound, the Department
increased the number of LMSs that
students interact with in each semester.
The Department raised the assumption
from 1 LMS to 2 for students in grades
K–4, from 7 LMSs to 10 in grades 5–8,
and from 14 LMSs to 20 in grades 9–12.
In addition, the Department created a
continuum of costs between its low
estimate of $182 and its high estimate of
$994, allocating costs that increase
linearly with each subsequent grade
level, and effectively raising the average
cost to remediate class or course
content. These changes raised the
annualized cost with a 3 percent
discount rate from $195 million to $312
million.
For the lower bound, the Department
adjusted the same parameters
downwards. The Department kept the
same estimate of one LMS for grades K–
4, decreased the number of LMSs for
grades 5–6 from seven to five, and
decreased the number of LMSs for
grades 9–12 from 14 to 10. For class or
course remediation costs, the
Department halved the estimated costs
to remediate a class for all grades. When
applying these changes, the annualized
cost with a 3 percent discount rate
decreased from $195 million dollars to
$75 million dollars.
The Department conducted sensitivity
analyses to assess the mobile apps cost
model by varying the assumption that
the cost to test and modify an existing
mobile app for accessibility is equal to
65 percent of the cost to build an
‘‘average’’ mobile app. In the sensitivity
analysis the Department assumed that
State and local government entities
mostly control either ‘‘simple’’ or
‘‘complex’’ mobile apps, rather than
‘‘average’’ mobile apps. Simple mobile
apps are less costly to build than the
average mobile app. The expected cost
of building a simple mobile app is
estimated to be $50,000, compared with
$105,000 for an average mobile app.241
The cost of testing and modifying a
simple mobile app for accessibility is
assumed to be 65 percent of the cost to
build a simple mobile app, equal to
$32,500. Using this assumption based
on simple mobile apps, PV of total
mobile app testing and remediation
241 SPD Load, How Much Does It Cost to Develop
an App in 2022? Cost Breakdown, https://
spdload.com/blog/app-development-cost/ [https://
perma.cc/Y2RM-X7VR].
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Federal Register / Vol. 88, No. 149 / Friday, August 4, 2023 / Proposed Rules
costs decreases from $597.8 million to
$285.7 million.
Conversely, complex mobile apps are
costlier to build than both simple
mobile apps and the ‘‘average’’ mobile
app. The expected cost of building a
complex mobile app is $300,000,
compared with $105,000 for the average
mobile app.242 The cost to test and
modify a complex mobile app for
accessibility is assumed to be 65 percent
of the cost to build a complex mobile
app, equal to $195,000. Using this
assumption based on complex mobile
apps, PV of total mobile app testing and
remediation costs increase from $597.8
million to $1.1 billion.
The parameters changed for each
analysis can be found in Table 27, and
the total aggregated lower and higher
52003
estimates can be found in Table 28.
Based on the Department’s sensitivity
analyses, total 10-year costs discounted
at 7 percent would likely be between
$18.4 and $29.5 billion.
The Department’s sensitivity analysis
parameters are presented in Table 27,
and the Department’s sensitivity
analyses of total costs are presented in
Table 28.
TABLE 27—SENSITIVITY ANALYSIS PARAMETERS
Cost
Bound
Variations
Higher education course remediation.
Higher education course remediation.
Website costs ..................................
Website costs ..................................
Mobile app costs .............................
Mobile app costs .............................
Elementary and secondary class or
course remediation costs.
Elementary and secondary class or
course remediation costs.
Lower estimate ..............................
Increased remediation timeline.
Higher estimate .............................
Higher course cost.
Lower estimate ..............................
Higher estimate .............................
Lower estimate ..............................
Higher estimate .............................
Lower estimate ..............................
Increased rate of PDF archival.
Lower effectiveness of automated accessibility checkers.
Assume government apps are ‘‘simple.’’
Assume government apps are ‘‘complex.’’
Assume fewer LMS classes or courses, lower class or course cost.
Higher estimate .............................
Assume more LMS classes or courses, higher class or course cost.
TABLE 28—SENSITIVITY ANALYSES OF TOTAL COSTS
[Millions]
Time period
Primary
Year 1 ..........................................................................................................................................
Year 2 ..........................................................................................................................................
Year 3 ..........................................................................................................................................
Year 4 ..........................................................................................................................................
Year 5 ..........................................................................................................................................
Year 6 ..........................................................................................................................................
Year 7 ..........................................................................................................................................
Year 8 ..........................................................................................................................................
Year 9 ..........................................................................................................................................
Year 10 ........................................................................................................................................
PV of 10-year costs, 3% discount rate ........................................................................................
Average annualized costs, 3% discount rate ..............................................................................
PV of 10-year costs, 7% discount rate ........................................................................................
Average annualized costs, 7% discount rate ..............................................................................
h. Cost to Revenue Comparison
ddrumheller on DSK120RN23PROD with PROPOSALS2
To consider the relative magnitude of
the estimated costs of this proposed
regulation, the Department compares
the costs to revenues for State and local
government entities. Because the costs
for each government entity type are
estimated to be well below 1 percent of
revenues, the Department does not
believe the rule will be unduly
burdensome or costly for public
242 Id.
243 As
noted above and as a point of reference, the
United States Small Business Administration
advises agencies that a potential indicator that the
impact of a proposed regulation may be
‘‘significant’’ is whether the costs exceed 1 percent
of the gross revenues of the entities in a particular
sector, although the threshold may vary based on
the particular types of entities at issue. The
Department estimates that the costs of this
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$3,361
3,646
6,402
3,270
1,836
1,836
1,836
1,836
1,836
1,836
24,302
2,849
20,724
2,951
High estimate
$5,462
5,935
8,986
3,756
2,485
2,485
2,485
2,485
2,485
2,485
34,420
4,035
29,527
4,204
Low estimate
$3,145
3,422
4,030
2,716
2,835
1,743
1,743
1,743
1,743
1,743
21,712
2,545
18,407
2,621
entities.243 Costs for each type and size
of government entity are estimated to be
well below this 1 percent threshold.
The Department estimated the
proportion of total local government
revenue in each local government entity
type and size using the 2012 U.S.
Census Bureau’s database on individual
local government finances.244 To
evaluate which government entities
continue to be small, the Department
applied the U.S. Census’s Bureau’s
population growth rates by State to the
population numbers in the individual
local government finances data to
estimate 2020 population levels.245
To calculate population estimates for
independent school districts, the
Department used a methodology that is
inconsistent with the population
provisions in the proposed rule’s
regulatory text because the local
government finances data only include
enrollment numbers, not population
rulemaking for each government entity type are far
less than 1 percent of revenues. See Small Bus.
Admin., A Guide for Government Agencies: How to
Comply with the Regulatory Flexibility Act 19
(Aug. 2017), https://advocacy.sba.gov/wp-content/
uploads/2019/07/How-to-Comply-with-the-RFAWEB.pdf [https://perma.cc/MZW6-Y3MH].
244 U.S. Census Bureau, Historical Data (Oct.
2021), https://www.census.gov/programs-surveys/
cog/data/historical-data.html [https://perma.cc/
UW25-6JPZ]. The Department was unable to find
more recent data with this level of detail.
245 U.S. Census Bureau, Historical Population
Change Data (1910–2020) (Apr. 26, 2021), https://
www.census.gov/data/tables/time-series/dec/
popchange-data-text.html [https://perma.cc/RYQ3VX9Q]. Population numbers in the 2012 data are
from different years, so the Department applied a
growth rate based on the specified date for each
entity.
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numbers. Detailed information on this
methodology can be found in the full
PRIA.
The Department applied these
proportions of governments in each
entity type to the total local government
revenue estimate from the U.S. Census
Bureau’s State and Local Government
Finances by Level of Government and
by State: 2020, updated to 2021
dollars.246 Table 29 contains the average
annualized cost using a 3 percent and 7
percent discount rate,247 2020 annual
revenue estimates, and the cost-torevenue ratios for each entity type and
size. The costs are less than 1 percent
of revenues in every entity type and size
combination, so the Department
believes that the costs of this proposed
regulation would not be overly
burdensome for the regulated entities.
Costs for postsecondary institutions
were analyzed separately from other
government entities. For public
universities, which tend to be State
dependent, the Department has
included costs with State governments
to ensure the ratio of costs to revenues
is not underestimated. For community
college independent districts, the
Department has revenue data.
TABLE 29—COST-TO-REVENUE RATIOS BY ENTITY TYPE AND SIZE 248
Average
annualized
cost
(millions)
3% discount
rate
Type of government entity
Size
State ...................................................
State ...................................................
County ................................................
County ................................................
Municipality ........................................
Municipality ........................................
Township ............................................
Township ............................................
Special district ....................................
School district [b] ................................
School district [b] ................................
Territory ..............................................
Territory ..............................................
Public university [c] ............................
Community college [d] ........................
Small ....................
Large ...................
Small ....................
Large ...................
Small ....................
Large ...................
Small ....................
Large ...................
N/A .......................
Small ....................
Large ...................
Small ....................
Large ...................
N/A .......................
N/A .......................
Average
annualized
cost
(millions)
7% discount
rate
N/A
$867
20
126
342
100
244
8
73
366
208
0
1
N/A
163
N/A
$877
21
135
362
108
257
9
77
384
218
0
1
N/A
166
Annual
revenue
(millions)
[a]
N/A
$2,846,972
65,044
448,212
184,539
524,589
55,819
12,649
278,465
330,746
311,614
1,243
38,871
N/A
38,445
Cost to
revenue
3% discount
rate
(%)
N/A
0.03
0.03
0.03
0.19
0.02
0.46
0.07
0.03
0.12
0.07
0.02
0.00
N/A
0.44
Cost to
revenue
7% discount
rate
(%)
N/A
0.03
0.03
0.03
0.20
0.02
0.48
0.07
0.03
0.12
0.07
0.02
0.00
N/A
0.45
[a] U.S. Census Bureau, 2020 State & Local Government Finance Historical Datasets and Tables (Sept. 2022), https://www.census.gov/data/
datasets/2020/econ/local/public-use-datasets.html [https://perma.cc/QJM3-N7SG]. Inflated to 2021 dollars using GDP deflator.
[b] Excludes colleges and universities.
[c] Almost all public universities are State-dependent; costs included in the State entity type.
[d] Census of Governments data include revenue numbers only for independent community colleges. The costs included correspond to the proportion of the total number of community colleges that are independent.
Websites and mobile apps are
common resources to access government
services, programs, and activities. For
example, during a 90-day period in
summer 2022, there were nearly 5
billion visits to Federal Government
websites.249 Aggregate data are
unavailable for State and local
government entities’ websites, but based
on the analysis in Section 2 of the PRIA,
the Department estimates there are
roughly 109,900 public entity websites,
and based on the analysis in Section
4.3.2 of the PRIA, the Department
estimates these websites have 22.8
billion annual visits. Unfortunately,
services, programs, and activities that
State and local government entities
provide online are not always fully
accessible to individuals with
disabilities. Conformance with WCAG
2.1 Level AA would increase
availability of these resources to
individuals with disabilities that affect
web and mobile app access (i.e., vision,
hearing, cognitive, and manual dexterity
disabilities). These individuals are
referred to as ‘‘individuals with relevant
disabilities’’ or ‘‘individuals with
certain types of disabilities.’’
Conformance would also result in
benefits to individuals without these
disabilities because accessible websites
incorporate features that benefit all
users, including individuals with other
types of disabilities and individuals
who do not have disabilities.
This section summarizes the benefits
of conformance with WCAG 2.1 Level
AA for both individuals with and
without relevant disabilities. The
Department calculated the primary
types of disabilities impacted by WCAG
2.1 Level AA and prevalence rates for
each disability type. The Department
also considered how individuals
without relevant disabilities may
benefit. For purposes of this analysis,
‘‘individuals without relevant
disabilities’’ are individuals who do not
have vision, hearing, cognitive, or
manual dexterity disabilities; these may
be individuals with other disabilities or
246 U.S. Census Bureau, 2020 State & Local
Government Finance Historical Datasets and Tables
(Sept. 20, 2022), https://www.census.gov/data/
datasets/2020/econ/local/public-use-datasets.html
[https://perma.cc/QJM3-N7SG].
247 The estimated costs for dependent community
colleges are not included in this table because the
Department is unable to determine how to
distribute these entities’ costs across the other types
of State and local entities. Additionally, it is
unclear if all public college and university revenue
(e.g., tuition and fees) are included in the revenue
recorded for the State or local entities on which the
school is dependent. Finally, the low cost-torevenue ratio for the independent community
colleges indicate that these would not increase the
cost to revenue above 1 percent for any entity type
and size.
248 See Section 3.9, Cost to Revenue Comparison,
in the accompanying PRIA.
249 General Services Administration Digital
Analytics Program, https://analytics.usa.gov/
[https://perma.cc/2YZP-KCMG] (data retrieved on
Aug. 8, 2022). While this rule will not apply to the
Federal Government, this statistic is provided for
analogy to show the proliferation of government
services offered online.
5. Benefits Analysis
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a. Summary of Benefits for Persons With
and Without Relevant Disabilities
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individuals with no disability. The
Department then monetized benefits
where applicable. These monetized
benefits are predominantly associated
with time savings. The Department
estimates that average annualized
benefits will total $8.9 billion, using a
7 percent discount rate, and $9.3 billion
using a 3 percent discount rate. Finally,
the Department qualitatively described
additional benefits that could not be
quantified.
b. Types of Disabilities Affected by
Accessibility Standards
Accessibility standards can benefit
individuals with a wide range of
disabilities, including vision, hearing,
cognitive, speech, and physical
disabilities. The Department focused on
those with vision, hearing, cognitive,
and manual dexterity disabilities
because WCAG 2.1 Level AA success
criteria more directly benefit people
with these disability types.250 However,
the Department emphasizes that benefits
for other disability types are also
important and that excluding those
disabilities may underestimate benefits.
Additionally, disability prevalence rates
may underestimate the number of
people with a disability due to
underreporting. As part of its analysis,
the Department estimated that 19.9
percent of adults have a relevant
disability for purposes of this analysis.
Table 30 presents prevalence rates for
each of these four types of disability.
The number of individuals with
disabilities impacted by this rule may be
smaller or larger than the numbers
shown here. According to the Pew
Research Center, 27 percent of people
have a disability, as compared to the
19.9 percent figure used in this
analysis.251 Conversely, not all
individuals with vision, hearing,
cognitive, or manual dexterity
disabilities may be impacted by the
proposed rulemaking. For example,
‘‘cognitive disabilities’’ is a broad
category and some people with
cognitive disabilities may not
experience the same benefits from web
accessibility that others do.
The Department recognizes that
accessibility can also produce
significant benefits for individuals
without relevant disabilities. For
instance, many individuals without
physical disabilities enjoy the benefits
of physical accessibility features
currently required under the ADA. For
example, curb ramps, other ramps, and
doors with accessible features can be
helpful when pushing strollers or
dollies. In the web context, experts have
recognized that accessible websites are
generally better organized and easier to
use even for persons without relevant
disabilities.252 This can result in
benefits to the general public. The
population of persons without relevant
disabilities is derived as the remainder
of the population once individuals with
the four disabilities discussed above are
removed. The Department estimates that
there are 202.3 million Americans
without relevant disabilities.
Companions 253 may also benefit from
this proposed rulemaking because they
will not need to spend as much time
assisting with activities that an
individual with a disability can now
perform on their own. Companions can
then spend this time assisting with
other tasks or engaging in other
activities. Estimates on the number of
companions vary based on definitions,
but according to the AARP, there are 53
million ‘‘unpaid caregivers’’ in the
United States.254 This number includes
companions to those with disabilities
other than disabilities applicable to web
accessibility. There are also 4.7 million
direct care workers in the United
States.255 Benefits to companions are
not quantified, but they are discussed
further in Section VI.A.5.d of this
preamble.
TABLE 30—DISABILITY PREVALENCE COUNTS, SIPP 2021
Prevalence
rate
(%)
Disability type
Vision ...............................................................................................................
Hearing ............................................................................................................
Cognitive ..........................................................................................................
Manual dexterity ..............................................................................................
None of the above ...........................................................................................
Number
(millions)
4.8
7.5
10.1
5.7
80.1
12.2
19.0
25.5
14.3
202.3
Cumulative
prevalence
rate [a]
(%)
4.8
6.1
6.7
2.3
80.1
Cumulative
number [a]
(millions)
12.2
15.3
16.9
5.7
202.3
See U.S. Census Bureau, Survey of Income and Program Participation—About this Survey (Aug. 2022), https://www.census.gov/programs-surveys/sipp/about.html [https://perma.cc/Z7UH-6MJ8]; see also Section 4.2, Types of Disabilities Affected by Accessibility Standards, in the accompanying PRIA for more details on the Department’s findings.
[a] Individuals with multiple qualifying disabilities are counted within the first disability category listed (e.g., if someone has a cognitive and vision disability, they are included in the vision disability prevalence rate).
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c. Monetized Benefits
assumptions are included in Section
4.3, Monetized Benefits, in the
accompanying PRIA. The five
monetized benefits and their estimated
monetary value are:
The Department monetized five
benefits of accessible public entity
websites and mobile apps (Figure 1).
The Department’s conclusions are
described in this summary, and more
detail about its methodology and
250 See W3C®, Introduction to Web Accessibility,
https://www.w3.org/WAI/fundamentals/
accessibility-intro/ (Mar. 31, 2022) [https://
perma.cc/79BA-HLZY].
251 Susannah Fox & Jan Lauren Boyles, Disability
in the Digital Age, Pew Research Center (Aug. 6,
2012), https://www.pewinternet.org/2012/08/06/
disability-in-the-digital-age/ [https://perma.cc/
9RBM-PD78].
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252 See W3C®, The Business Case for Digital
Accessibility (Nov. 9, 2018), https://www.w3.org/
WAI/business-case/ [https://perma.cc/K5AFUYWS].
253 A companion may refer to a family member,
friend, caregiver, or anyone else providing
assistance.
254 AARP National Alliance for Caregiving,
Caregiving in the United States 2020, AARP (May
14, 2020), https://www.aarp.org/ppi/info-2020/
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• Time savings for current users of
State and local government entities’
websites ($4.2 billion per year),
• Time savings for those who switch
modes of access (i.e., switch from other
modes of accessing State and local
government entities’ services, programs,
caregiving-in-the-united-states.html [https://
perma.cc/QBQ2-L94W]. The term ‘‘unpaid
caregiver’’ as used in the AARP report is
comparable to this analysis’ use of the term
companion to refer to family members, friends,
caregivers, or anyone else providing assistance.
255 PHI, Understanding the Direct Care
Workforce, https://www.phinational.org/policyresearch/key-facts-faq/ [https://perma.cc/9DNNXL23].
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and activities such as phone or mail to
the public entities’ website) or begin to
participate (did not previously partake
in the State and local government
entities’ services, programs, or
activities) ($917.4 million per year),
• Time savings for current mobile app
users ($390.1 million per year),
• Time savings for students and their
parents ($5.1 billion per year), and
• Earnings from additional
educational attainment ($262.8 million
per year).256
All five types of benefits are
applicable for those with a relevant
disability. For individuals without a
relevant disability, benefits are limited
to time savings for current users of State
and local government entities’ websites,
current users of mobile apps, and
educational time savings. For State and
local government entities, monetized
benefits include time savings from
reduced contacts (i.e., fewer interactions
assisting people with disabilities). After
calculating current benefit levels for
each benefit type, the Department
projected benefits over a 10-year period
and took into consideration the
implementation period. The Department
also conducted sensitivity analyses and
calculated benefits for regulatory
alternatives.
In total, the Department estimated
benefits of $8.9 billion per year on an
average annualized basis, using a 7
percent discount rate. On a per capita
basis, this equates to $35 per adult in
the United States.257
i. Projected 10-Year Benefits
During the implementation period,
benefits will be lower. The proposed
rule allows either two or three years for
implementation, depending on the
public entity’s population. With the
exclusion of educational benefits
(discussed below), the Department
believes benefits will fully accrue
beginning in Year 4 but that some
benefits will exist during the three
implementation years as websites and
mobile apps become more accessible.
The Department assumes that in Year 1
benefits are 27 percent of the level of
benefits once compliance is complete;
in Year 2 benefits increase to 53 percent;
and in Year 3 benefits increase to 80
percent (Table 31).258
For course remediation time savings,
the Department assumed no benefits
would accrue until the implementation
period is complete because courses will
not be remediated until remediation is
requested,259 and it is unknown in
advance which courses will need to be
remediated. Therefore, in Year 3, once
small entities are affected, 63 percent of
potential benefits for postsecondary
students will accrue and 53 percent of
potential benefits for elementary and
secondary students will accrue. In Year
4, full benefits are reached.260
256 Even after the implementation period, the size
of the annual benefit increases over time as more
cohorts graduate with additional educational
attainment. $262.8 million represents the annual
benefit to one graduating class.
257 The Census Bureau estimates 257.9 million
adults in the United States in 2020. U.S. Census
Bureau, National Demographic Analysis Tables:
2020 (Mar. 2022), https://www.census.gov/data/
tables/2020/demo/popest/2020-demographicanalysis-tables.html [https://perma.cc/7WHV7CPM].
258 The Department assumed benefits accrue at a
steady rate over the implementation period. For
example, for large entities, benefits increase from 33
percent in Year 1, to 66 percent in Year 2, and 100
percent in Year 3. For small entities, benefits
increase from 25 percent in Year 1, to 50 percent
in Year 2, to 75 percent in Year 3, and 100 percent
in Year 4. The benefits will be 100 percent accrued
in Year 3 for large entities and Year 4 for small
entities because at the beginning of those years, the
implementation period will be over. These accrual
rates are weighted by the number of government
websites for small versus large governments. Eighty
percent of websites are for small entities, despite
websites being less common among small entities,
because the number of small governments is much
larger than the number of large governments.
259 There are circumstances where courses must
be remediated in the absence of a request, such as
where an institution should know about the need
for accessible materials. This is described in detail
in the corresponding section of the preamble.
260 The Department does not know which
institutions are associated with small or large
governments. Therefore, the Department assumed
that four-year institutions are large entities and
community colleges are small entities. For
elementary and secondary schools, the Department
used the share of students in independent school
districts who are in small versus large districts.
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For educational attainment, benefits
do not accrue until after the additional
education is obtained. For simplicity,
benefits are assumed to begin in Year 5,
after two years of implementation
followed by two years of additional
educational attainment. The amount of
time needed to obtain additional
education varies based on the degree,
but the Department believes two years is
an appropriate average. For example, to
move from a high school degree to some
college or an associate’s degree would
take approximately two years. Similarly,
to move from some college or an
associate’s degree to a bachelor’s degree
would also take approximately two
years. The Department only
52007
incorporated two years of
implementation because most public
colleges are under the purview of large
governments with a two-year
implementation period. Average
annualized educational attainment
benefits only include additional
earnings over this 10-year period, not
over the course of a lifetime.
TABLE 31—TIMING OF BENEFITS
[Millions]
Total benefit
(million)
Year
Year
Year
Year
Year
Year
Year
Year
Year
Year
Year
1 ........
2 ........
3 ........
4 ........
5 ........
6 ........
7 ........
8 ........
9 ........
10 ......
Non-education
accrual rate
(%)
Non-education
benefits
(millions)
27
53
80
100
100
100
100
100
100
100
$1,619
3,239
4,858
6,068
6,068
6,068
6,068
6,068
6,068
6,068
$1,619
3,239
7,756
11,125
11,387
11,650
11,913
12,176
12,439
12,702
Postsec.
accrual rate
(%)
Elementary/
secondary
accrual rate
(%)
Postsec.
benefits a
(million)
0
0
63
100
100
100
100
100
100
100
$0
0
1,447
2,303
2,303
2,303
2,303
2,303
2,303
2,303
Elementary/
secondary
benefits a
(million)
0%
0
53
100
100
100
100
100
100
100
Educational
attainment
accrual
$0
0
1,452
2,754
2,754
2,754
2,754
2,754
2,754
2,754
0% .............
0% .............
0% .............
0% .............
1 cohort .....
2 cohorts ...
3 cohorts ...
4 cohorts ...
5 cohorts ...
6 cohorts ...
Education
attainment
benefits
(million)
$0.0
0.0
0.0
0.0
263
526
788
1,051
1,314
1,577
a Benefits may begin accruing during the implementation period, but for simplicity, the Department excluded benefits here for these years. The Department only incorporated two years of implementation because most public colleges are under the purview of large governments with a two-year implementation period.
ii. Sensitivity Analysis of Benefits
The benefits calculations incorporate
some assumptions and sources of
uncertainty. Therefore, the Department
has conducted sensitivity analyses on
select assumptions to demonstrate the
degree of uncertainty in the estimates.
Other assumptions not altered here also
involve a degree of uncertainty and so
these low and high estimates should not
be considered absolute bounds.
Average annualized benefits using a 7
percent discount rate are estimated to be
$8.9 billion under the primary
conditions. Using the low estimate
assumptions, they are $6.4 billion and
under the high estimate assumptions
they are $14.7 billion (Table 32). The
variations used for each benefit type are
shown in Table 33.
TABLE 32—AVERAGE ANNUALIZED BENEFITS SENSITIVITY ANALYSIS
[Millions] a
Beneficiary
Low estimate
Primary
Time savings—current users .......................................................................................................
Time savings—new users ...........................................................................................................
Time savings—governments .......................................................................................................
Time savings—mobile apps ........................................................................................................
Time savings—education ............................................................................................................
Educational attainment ................................................................................................................
$2,688.7
170.3
83.6
252.1
3,043.7
141.2
$3,416.1
753.5
493.3
320.4
3,504.4
449.5
7,284.1
1,177.3
578.1
683.1
3,803.5
1,167.5
Total ......................................................................................................................................
6,379.7
8,937.2
14,693.6
a 10-Year
average annualized benefits, 7 percent discount rate.
TABLE 33—ASSUMPTIONS AND DATA SOURCES VARIED FOR SENSITIVITY ANALYSIS
Beneficiary
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High estimate
Time
Time
Time
Time
Time
Time
Time
Time
Time
Time
Time
Time
Time
Time
Time
Time
Estimate type
savings—current users ..................
savings—current users ..................
savings—current users ..................
savings—new users .......................
savings—new users .......................
savings—new users .......................
savings—new users .......................
savings—new users .......................
savings—new users .......................
savings—governments ..................
savings—governments ..................
savings—governments ..................
savings—governments ..................
savings—governments ..................
savings—governments ..................
savings—mobile apps ....................
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Low ........................
High .......................
High .......................
Low ........................
Low ........................
Low ........................
Low ........................
High .......................
High .......................
Low ........................
Low ........................
Low ........................
Low ........................
High .......................
High .......................
Low ........................
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Variations
ACS data for prevalence rates, instead of SIPP.
Same time reduction (24%) for all disabilities.
Exclude ‘‘n/a’’ from SEMRUSH output.
ACS data for prevalence rates, instead of SIPP.
Usage gap only closes by 75%.
Lower transaction time (19 minutes instead of 25).
Fewer transactions (6 instead of 8).
Higher transaction time (31 minutes instead of 25).
More transactions (10 instead of 8).
ACS data for prevalence rates, instead of SIPP.
Usage gap only closes by 75%.
Lower transaction time (7.5 minutes instead of 10).
Fewer transactions (7.5 instead of 6).
Higher transaction time (12.5 minutes instead of 10).
More transactions (4.5 instead of 6).
ACS data for prevalence rates, instead of SIPP.
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TABLE 33—ASSUMPTIONS AND DATA SOURCES VARIED FOR SENSITIVITY ANALYSIS—Continued
Beneficiary
Estimate type
Time savings—mobile apps ....................
Time savings—mobile apps ....................
Time savings—education ........................
Time savings—education ........................
Educational attainment ...........................
Educational attainment ...........................
Educational attainment ...........................
Educational attainment ...........................
High .......................
High .......................
Low ........................
High .......................
Low ........................
Low ........................
High .......................
High .......................
For current website users, the
Department altered three assumptions—
one for the low estimate and two for the
high estimate. First, disability
prevalence rates are much lower using
ACS data than SIPP data. As explained
in Section 2.2 of the accompanying
PRIA, the Department believes the SIPP
estimates are more appropriate, but ACS
numbers are used here for sensitivity.
Using ACS data reduces the average
annual benefits from $3.4 to $2.7
billion. For the high estimate, rather
than assuming the time reduction for
individuals with hearing, cognitive, or
manual dexterity is equivalent to
individuals without a hearing disability,
the Department assumes the reduction
is equivalent to individuals with vision
disabilities. The Department also
excluded websites for which
SEMRUSH, an online marketing and
research tool,261 did not provide data,
rather than assuming values of zero.
These two variations increase benefits
from $3.4 billion to $7.3 billion.
For new website users and cost
savings to governments, the Department
altered four assumptions. First, once
again, ACS prevalence rates were used
in lieu of SIPP estimates. Second, rather
than assuming website usage becomes
equivalent for individuals with and
without relevant disabilities, the
Department assumed this gap only
closes by 75 percent. Third, the average
time spent per transaction was reduced
or increased by 25 percent for the low
estimate and high estimate, respectively.
Fourth, the average number of
transactions per year was reduced or
increased by 25 percent for the low
estimate and high estimate, respectively.
Incorporating these alternative
assumptions reduces the benefits for
new users to $170.3 million when the
transactions are reduced or increases the
benefits to $1.2 billion when the
transactions are increased, from $753.5
million. For cost savings to
governments, benefits decrease to $83.6
million when transactions are reduced
261 For information on this application, see
https://www.semrush.com/features/ [https://
perma.cc/ZZY5-U42Z].
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Variations
Same time reduction (24%) for all disabilities.
Exclude ‘‘n/a’’ from SEMRUSH output.
ACS data for prevalence rates, instead of SIPP.
Same time reduction (24%) for all disabilities.
ACS data for prevalence rates, instead of SIPP.
Smaller share of achievement gap closed.
Benefits begin in Year 3, instead of Year 5.
Larger share of achievement gap closed.
or increase to $578.1 million when the
transactions are increased, from $493.3
million.
For mobile app users, the Department
altered three assumptions. These are the
same assumptions that were discussed
above for current website users (ACS
prevalence data, time reduction for
individuals with other disabilities, and
exclusion of websites not analyzed by
SEMRUSH). After making these
calculations, benefits either decrease to
$252.1 million or increase to $683.1
million from $320.4 million.
For time savings for students and
parents, the Department altered two
assumptions. The low estimate uses
ACS data for prevalence rates instead of
SIPP. The high estimate uses a 24
percent time savings for those with
hearing, cognitive, and manual dexterity
disabilities instead of 21 percent. After
making these calculations, benefits
decrease to $3.0 billion or increase to
$3.8 billion from $3.5 billion.
For benefits of additional educational
attainment, the Department altered three
assumptions. First, ACS prevalence
rates were used instead of SIPP. Second,
benefits begin to accrue in Year 3 rather
than Year 5. Third, the Department
changed the share of the educational
achievement gap that would be closed
from 10 percent to 5 and 15 percent.
After making these calculations, benefits
decrease to $141.2 million or increase to
$1.2 billion from $449.5 million.
d. Unquantified Benefits
This rulemaking is being promulgated
under the ADA—a Federal civil rights
law. Congress stated that a purpose of
the ADA is ‘‘to provide a clear and
comprehensive national mandate for the
elimination of discrimination against
individuals with disabilities.’’ 262 This
proposed rule is intended to further the
ADA’s broad purpose by helping to
eliminate discrimination against people
with disabilities in public entities’ web
content and mobile apps that are made
available to the public or are used to
offer their services, programs, and
activities. Access to such services,
programs, and activities is critical to
furthering the Nation’s goal, as
articulated in the ADA, to ensure
‘‘equality of opportunity, full
participation, independent living, and
economic self-sufficiency’’ for people
with disabilities.263 This access is also
critical to promoting the exercise of
fundamental constitutional rights, such
as the rights to freedom of speech,
assembly, association, petitioning, and
due process of law. This proposed rule,
therefore, implicates benefits like
dignity, independence, and
advancement of civil and constitutional
rights for people with disabilities. Such
benefits can be difficult or impossible to
quantify yet provide tremendous benefit
to society. The January 20, 2021,
Presidential Memorandum titled
‘‘Modernizing Regulatory Review’’ 264
states that the regulatory review process
should fully account for regulatory
benefits that are difficult or impossible
to quantify. Many of the benefits in this
proposed rule are exactly the type of
benefits contemplated by the
Presidential Memorandum.
These benefits are central to this
proposed rule’s potential impact as they
include concepts inherent to any civil
rights law—like equality—that will be
felt throughout society and personally
by individuals with disabilities.
Consider, for example, how even a
routine example of access to a webbased form could impact a person with
a disability. When the online form is
accessible, the person with a disability
can complete the form (1) at any time
they please, even after normal business
hours; (2) on their own; (3) without
needing to share potentially private
information with someone else; and 4)
quickly, because they would not need to
coordinate a time to complete the form
with a companion. Importantly, this is
the experience people without relevant
disabilities have when accessing online
government services. This proposed rule
is intended to ensure that people with
263 Id.
262 42
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disabilities have the same opportunity
to participate in and receive the benefits
of the services, programs, or activities
that State and local government entities
make available to members of the public
online.
There are many benefits of this
proposed rule—like equality and
dignity—that have not been monetized
in the PRIA due to limited data
availability and inherent difficulty to
quantify. Those benefits are discussed
here qualitatively. The Department
requests comments and data that could
assist in quantifying these important
benefits so that the Department can also
represent them in a way consistent with
this proposed rule’s costs. The
Department recognizes the significant
benefits of this rule and the impact the
rule will have on the everyday lives of
people with disabilities. Thus, the
Department seeks the public’s assistance
in better quantifying the benefits that
are discussed qualitatively in this
section.
This section’s description of the
proposed rule’s unquantified benefits
first discusses benefits to individuals,
followed by benefits to State and local
government entities.
• Benefits to individuals include,
among others:
Æ Increased independence, flexibility,
and dignity;
Æ Increased privacy;
Æ Reduced frustration;
Æ Decreased assistance by
companions;
Æ Increased program participation;
and
Æ Increased civic engagement and
inclusion.
• Benefits to governments include,
among others:
Æ Increased certainty about the
applicable technical standard; and
Æ Potential reduction in litigation.
i. Increased Independence, Flexibility,
and Dignity
Among the most impactful benefits of
this rulemaking are greater
independence, flexibility, and dignity
for people with disabilities. These
unquantified benefits will extend
beyond just people with disabilities—
many other individuals will benefit
from more accessible websites, as
described in the PRIA. These benefits
are also among the most difficult to
quantify, given that they will be felt
uniquely by each person and are often
experienced in many intangible aspects
of a person’s life. Because of this, the
Department was unable to quantify the
monetary benefits of increased
independence, flexibility, and dignity
that will result from this rulemaking.
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These unquantified benefits are thus
briefly described here. This inability to
quantify these benefits does not suggest
that the Department considers them any
less important.
Accessible public entity websites and
mobile apps will enable more people
with disabilities to independently
access State or local government
entities’ services, programs, and
activities. People with disabilities will
be able to directly access websites
providing essential governmental
information and services, without
needing to rely on a companion to
obtain information and interact with
websites and mobile apps. For example,
people with disabilities will be able to
independently submit forms and
complete transactions, request critical
public services, communicate more
easily with their local public officials,
and apply for governmental benefits.
The ability to do each of these tasks
independently, without paying an
assistant or asking for a companion’s
assistance, creates a substantial benefit.
Additionally, online processing with
status updates, automated notifications,
and automated reminders generates time
savings and convenience that those with
disabilities will be better able to access
when they can independently enroll in
government services through websites
as a result of this rule. People with
disabilities will thus be able to exercise
more independence and control over
their interactions with State or local
government entities, which are
unquantified benefits that will accrue
from this rulemaking.
Further, this rulemaking will provide
increased flexibility for people with
disabilities. This is another benefit that
is difficult to quantify, so the
Department describes it here. Because of
this rulemaking, people with disabilities
will be better able to access State or
local government entities’ services,
programs, or activities on their own
time and at their convenience, without
needing to wait for assistance from a
companion or a State or local
government entity’s employee. The
ability to conduct certain transactions
on a public entity’s website, such as
paying a utility bill, renewing a business
license, or requesting a special trash
pickup, gives individuals the ability to
conduct these transactions at a time
most convenient to them. This greater
flexibility should lead to overall
improved use of a person’s time, as
measured by their preferences (thereby
enhancing what economists refer to as
utility). This greater flexibility could
also result in cost savings to individuals
with disabilities who might have
previously paid an assistant or sought
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the help of a companion to conduct
these transactions. Additionally, when
websites are inaccessible, people with
disabilities might have to make separate
arrangements to conduct a transaction
by taking time off work or arranging
transportation. Because of greater
website accessibility, people with
disabilities can schedule these
transactions or search for information at
a time and place most convenient for
them, which results in increased
benefits.
Finally, individuals with disabilities
will benefit from the dignity that is
associated with greater independence
and flexibility. This is another benefit
that is difficult to quantify, so the
Department has included it as an
unquantified benefit that will result
from this rulemaking. When individuals
with relevant disabilities do not need to
rely on others to conduct transactions
and access services, programs, and
activities, they are able to act with the
independence and flexibility that
individuals without relevant disabilities
enjoy, which results in greater feelings
of dignity. The knowledge that websites
and mobile apps are designed to be
inclusive of individuals with disabilities
can give people with disabilities a
greater sense of dignity rooted in the
knowledge that their lives are valued
and respected, and that they too are
entitled to receive the benefits of State
or local government entities’ services,
programs, and activities, without
needing to rely on others. The
Department was unable to quantify the
monetary value of this benefit, but the
Department expects individuals with
disabilities to benefit from greater
dignity as a result of this rulemaking.
This benefit is also associated with a
greater sense of confidence, self-worth,
empowerment, and fairness, which are
also benefits that will accrue as a result
of this rulemaking.
ii. Increased Privacy
Accessible websites and mobile apps
allow individuals with disabilities to
conduct activities independently,
without unnecessarily disclosing
potentially private information such as
banking details, Social Security
numbers, and health information to
other people. This is because when
individuals with disabilities are able to
use an accessible website or mobile app,
they can rely on security features to
convey information online, rather than
potentially sharing information with
others, such as companions or public
entities’ employees. Without accessible
websites, people with certain types of
disabilities may need to share this
sensitive information with others
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unnecessarily, which could result in
identity theft or misuse of their personal
information. Additionally, privacy
protects individual autonomy and has
inherent value. Even the prospect of
identity theft may result in people with
disabilities sharing less information or
needing to take additional measures to
protect themselves from having their
information stolen. Because of this,
there is a benefit that is difficult to
quantify in people with disabilities
being able to safely and privately
conduct important transactions on the
web, such as for taxes, healthcare, and
benefits applications. The increased
privacy and assurances that information
will be kept safe online will benefit
people with relevant disabilities, though
the Department was unable to
quantitatively calculate this benefit.
Further, another privacy benefit of
this rulemaking is that people with
relevant disabilities will have greater
access to community resources that
require sharing and receiving private
information. Sometimes sensitive
information may need to be discussed,
such as information about physical
health, mental health, sexual history,
substance use, domestic violence, or
sexual assault. When websites are more
accessible, people with disabilities will
be able to share this information using
things like online forms and messaging
systems, which reduces the likelihood
that an individual with a disability will
need to disclose this personal
information unnecessarily to a
companion or on the phone in the
presence of others. Additionally, if
people with relevant disabilities can
access websites independently, they
may be able to seek out community
resources without needing to involve a
companion or a State or local
government entity’s employee
unnecessarily, which enhances the
ability of people with these disabilities
to privately locate information. For
example, if a person with a disability is
seeking to privately locate resources
offered by a public entity that would
enable them to leave an abusive
relationship safely, accessible websites
will allow them to search for
information with greater privacy than
seeking out resources in person, on the
phone, or by mail, which they may not
be able to do without seeking assistance
from, or risking being detected by, their
abuser. These benefits were not
calculated quantitatively due to the
difficulty of placing a value on added
privacy, but the Department anticipates
people with disabilities would
nonetheless greatly benefit from the
privacy implications of this rule.
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iii. Reduced Frustration
Potentially in addition to the
significant unquantified benefits
discussed above, another impactful
benefit of this rulemaking that may be
difficult to quantify is reduced
frustration for people with disabilities.
Inaccessible websites and mobile apps
create significant frustration for
individuals with certain types of
disabilities who are unable to access
information or complete certain tasks. In
addition to the inconvenience of not
being able to complete a task, this
frustration can lead to a lower-quality
user experience. For example, Pascual et
al. (2014) assessed the moods of sighted,
low vision, and blind users while using
accessible and inaccessible websites and
found greater satisfaction with
accessible websites.265 This frustration
appears to be particularly common for
individuals with disabilities. Lazar et al.
(2007) documented the frustrations
users who are blind experience when
using screen readers, finding, for
example, that on average users reported
losing 30.4 percent of time due to
inaccessible content.266 Furthermore,
some people with vision disabilities
may be unable to complete a required
task altogether. For example, if an
individual with low vision is filling out
an online form but the color contrast
between the foreground and background
on the ‘‘submit’’ button is not sufficient,
or if an individual who is blind is filling
out a form that is not coded so that it
can be used with a screen reader, they
may be unable to submit their
completed form. The inability to
complete a task independently or
without any barriers can be extremely
frustrating and significantly reduce the
overall quality of the user experience.
The frustration that individuals with
disabilities experience while accessing
services, programs, and activities that
public entities offer on their websites
and mobile apps would be significantly
reduced if the content was made
accessible.
It is difficult to quantify this
reduction in frustration in monetary
costs, but it may already partially be
captured in the quantitative estimates
framed above as time savings. The
265 Afra Pascual et al., Impact of Accessibility
Barriers on the Mood of Blind, Low-Vision and
Sighted Users, 27 Procedia Comput. Sci. 431, 440
(2014), https://repositori.udl.cat/bitstream/handle/
10459.1/47973/020714.pdf?sequence=1 [https://
perma.cc/4P62-B42X].
266 Jonathan Lazar et al., What Frustrates Screen
Reader Users on the Web: A Study of 100 Blind
Users, 22(3) Int’l J. of Human–Comput. Interaction
247–269 (2007), https://web.archive.org/web/
20100612034800id_/https://triton.towson.edu/
∼jlazar/IJHCI_blind_user_frustration.pdf [https://
perma.cc/29PN-45GR].
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Department believes the ability to
complete tasks and engage with the
services, programs, and activities
offered by public entities on websites
and mobile apps can make a significant
improvement in the quality of the lives
of people with relevant disabilities by
reducing the frustration they
experience.
iv. Decreased Assistance by
Companions
In addition to the significant benefits
discussed above, when individuals with
disabilities are able to access websites
and mobile apps independently instead
of relying on a companion for
assistance, both individuals with
disabilities and their companions will
benefit in other ways that are difficult
to quantify.
If people with disabilities previously
relied on supports such as family
members or friends to perform these
tasks, the quality of these relationships
may be improved. If a person with a
disability no longer needs to request
assistance, they can spend that time
together with their loved ones
socializing or doing activities that they
prefer, instead of more mundane tasks
like filling out tax forms. People with
relevant disabilities will have an
increased opportunity to relate to their
companions as equals, rather than
needing to assume a dependent role in
their relationships when they need help
from others to complete tasks online.
Requests for assistance, and the manner
in which those requests are fulfilled by
others, can sometimes cause stress or
friction in interpersonal relationships;
when individuals can complete tasks
independently, those strains on
relationships may be reduced.
If people with relevant disabilities
previously paid companions to assist
them with online tasks, they will be able
to save or spend this money as they
choose. They will also be able to save
the time and effort associated with
finding paid companions who are
willing and able to assist with
intermittent, often low-paid work.
If State agencies were providing a
personal care assistant or home health
aide to assist an individual with a
disability, it is possible that some of that
companion’s time could be reallocated
to assist a different person with a
disability, because the same amount of
assistance would not be needed to
complete tasks online. This could
reduce government spending for homeand community-based services. It may
also increase the number of direct care
workers who are available to assist
people with disabilities.
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Companions will also benefit when
they do not need to provide assistance.
Family members or friends will be able
to do other things with the time that
they would have spent helping someone
with a disability. These may be
activities that they enjoy more, that earn
income, or that benefit society in other
ways. Paid companions will be able to
spend their time on other tasks such as
assisting with bathing, toileting, or
eating. All of these benefits are difficult
to quantitatively calculate, but they are
nonetheless benefits that would accrue
from the rule.
ddrumheller on DSK120RN23PROD with PROPOSALS2
v. Increased Program Participation
Section 4.3 of the PRIA indirectly
quantified the benefits of increased
access to services, programs, and
activities by calculating the benefit from
people changing how they access those
services to using websites and mobile
apps, which the Department referred to
as switching modes. However, the
Department believes that there are
unquantified benefits associated with
increased program participation that are
difficult to quantify, which are
described briefly here.
Inaccessible websites may prevent
persons with relevant disabilities from
accessing information or using State or
local government services, programs,
and activities that others without
relevant disabilities have access to
online. While people with disabilities
may nonetheless access government
services, programs, and activities
despite barriers due to inaccessible
websites, there will be other times when
people with disabilities are too
discouraged by these barriers and thus
do not participate in services, programs,
and activities. This rulemaking will
reduce those barriers to access, which
will result in fewer individuals with
disabilities being deterred from
participating in State or local
government services, programs, or
activities. Further, there may be some
State or local government services,
programs, or activities that individuals
with disabilities would simply not have
been aware of due to an inaccessible
website, that they may now choose to
participate in once they have access to
the website or mobile app providing
those services. This could result in a
benefit of increased program
participation, which will allow people
with relevant disabilities to take
advantage of services, programs, or
activities that could improve their lives.
The Department believes there is great
intangible benefit to people with
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disabilities being able to connect to
services, which will result in greater
feelings of engagement and belonging in
the community. There will also be a
tangible benefit to increased program
participation that will likely reduce
inequality. For example, increased
program participation could result in
increased benefit payouts, sidewalk
repairs, and trash pickups for people
with disabilities, which would reduce
inequality between people with
disabilities and people without relevant
disabilities.
vi. Increased Civic Engagement and
Inclusion
Increased program participation in
many civic activities will result in an
unquantified benefit of greater
community involvement, which will
allow people with relevant disabilities
to advocate for themselves and others
and participate more actively in the
direction of their communities. For
example, if more people with
disabilities can independently access
information about proposed legislative
and policy changes and contact local
civic leadership about their views, they
might be more likely to become actively
involved in civic activities within their
communities. Further, they may be able
to access information to inform their
democratic participation, such as by
locating election resources and
procedures for accessible voting. By
facilitating this kind of civic
engagement, this rule will promote the
exercise of fundamental constitutional
rights, such as the rights to freedom of
speech, assembly, association, and
petitioning. Aside from these benefits,
governments also provide opportunities
for social engagement, recreation, and
entertainment, which will further
enable people with relevant disabilities
to feel more engaged and connected
with their communities. This
engagement is a benefit both to people
with these disabilities and to people
without relevant disabilities who will be
able to connect with others in their
community more easily. All of these
benefits are difficult to quantify
monetarily, but the Department
nonetheless believes they will result in
significant benefits for people with
disabilities and for American
communities.
vii. Increased Certainty About What
Constitutes an Accessible Website
Under the ADA and Potential Reduction
in Litigation
Although the ADA applies to the
services, programs, and activities that
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State and local government entities offer
via the web, the ADA’s implementing
regulations currently do not include
specific technical standards. The
Department has consistently heard from
public entities that they desire guidance
on how to specifically comply with the
ADA in this context. Adopting WCAG
2.1 Level AA as the technical standard
for web and mobile app accessibility
will reduce confusion and uncertainty
by providing clear rules to public
entities regarding how to make the
services, programs, and activities they
offer to the public via their websites and
mobile apps accessible. Although the
resulting increased certainty from
adopting a technical standard is difficult
to quantify, the Department believes it
is an important benefit that will make
public entities more confident in
understanding and complying with their
ADA obligations.
Further, increased certainty regarding
how to make websites and mobile apps
accessible may reduce litigation costs
for public entities. Similar to how
specific standards in the physical
environment enable businesses to
identify and resolve accessibility issues,
the adoption of WCAG 2.1 Level AA as
a technical standard will enable public
entities to determine if their websites or
mobile apps are out of compliance with
the ADA and resolve any instances of
noncompliance, resulting in greater
accessibility without litigation. The
Department recognizes that more
specific technical standards could lead
to an increase in litigation as there will
be a clearer way to demonstrate that
public entities are not in compliance.
However, the ability to more easily
determine noncompliance will allow
the public entity to proactively resolve
any compliance issues. Thus, although
it is difficult to know the exact impact
that a clear technical standard will have
on total litigation costs, the Department
believes that the potential for reduced
litigation costs is a significant benefit for
public entities that should be accounted
for in this analysis.
6. Costs and Benefits of Regulatory
Alternatives
The Department estimated costs and
benefits for several possible alternatives
to the proposed rule. These alternatives
are described in Table 34, and a full
explanation of the Department’s
methodology can be found in Section 5,
Regulatory Alternatives, of the
accompanying PRIA.
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TABLE 34—REGULATORY ALTERNATIVES CONSIDERED 267
Stringency
Alternative
Less stringent ......................................................
Less stringent ......................................................
Less stringent ......................................................
Rule as Proposed ...............................................
More stringent .....................................................
More stringent .....................................................
More stringent .....................................................
a. Costs of Regulatory Alternatives
To estimate the impact to website,
mobile app, and course remediation
costs of lengthening the required
implementation timeline, the
Department adjusted its assumptions
about the pace at which entities would
incur initial testing and remediation
costs. In this analysis, the Department
projected 10-year costs assuming large
entities would incur 33 percent of their
initial costs in each of the first three
years and small entities would incur 25
percent of their initial costs in each of
the first four years after the
promulgation of the rule.
To estimate the costs of requiring
conformance only with WCAG 2.1 Level
A, the Department duplicated its
website cost methodology while
omitting from consideration any errors
that violate WCAG 2.1 Level AA success
criteria only. Accessibility errors that
violated both WCAG 2.1 Level A and
3 years for implementation for large entities; 4 years for implementation for small entities.
Conformance with WCAG 2.1 Level A required.
Conformance with WCAG 2.0 Level AA required.
Conformance with WCAG 2.1 Level AA required.
1 year for implementation for all entities.
1 year for implementation for large entities; 3 years for implementation for small entities.
Conformance with WCAG 2.1 Level AAA required.
WCAG 2.1 Level AA success criteria
were retained.
WCAG 2.1 introduced 12 new success
criteria for WCAG 2.1 Levels A and
AA.268 To estimate the costs of requiring
WCAG 2.0 Level AA rather than WCAG
2.1 Level AA standards, the Department
replicated its website cost methodology
while omitting any errors classified
under one or more of these new success
criteria.
To estimate the costs of shortening the
implementation timeline for the
proposed rule to one year for all entities,
the Department retained its primary
calculations but assumed that the full
burden of the initial costs would be
borne in Year 1. The Department then
generated a second alternative timeline
with a one-year implementation
timeline for large entities, and a threeyear implementation timeline for small
entities. For these alternatives, the
primary costs remain the same, but the
year that they begin to accrue is
changed.
The Department believes that
requiring compliance with WCAG 2.1
Level AAA would prove infeasible, or at
least unduly onerous, for some entities.
Level AAA, which is the highest level
of WCAG conformance, includes all of
the Level A and Level AA success
criteria and also contains additional
success criteria that can provide a more
enriched user experience, but are the
most difficult to achieve for web
developers. The W3C® does not
recommend that Level AAA
conformance be required as a general
policy for entire websites because it is
not possible to satisfy all Level AAA
success criteria for some content.269 For
those reasons, the Department did not
quantify costs of requiring WCAG 2.1
Level AAA. Table 35 shows the
projected 10-year costs of these
alternatives.
TABLE 35—PROJECTED TOTAL 10-YEAR COSTS FOR REGULATORY ALTERNATIVES
[Millions] 270
Longer time
frame
Time period
Year 1 ......................................................
Year 2 ......................................................
Year 3 ......................................................
Year 4 ......................................................
Year 5 ......................................................
Year 6 ......................................................
Year 7 ......................................................
Year 8 ......................................................
Year 9 ......................................................
Year 10 ....................................................
PV of 10-year costs, 3% rate ..................
Average annualized costs, 3% rate .........
PV of 10-year costs, 7% rate ..................
Average annualized costs, 7% rate .........
$2,387
2,582
2,803
6,030
3,270
1,836
1,836
1,836
1,836
1,836
22,721
3,162
18,579
2,712
WCAG 2.1
Level A
WCAG 2.0
Level AA
$3,095
3,380
6,275
3,262
1,831
1,831
1,831
1,831
1,831
1,831
23,620
2,795
20,093
2,860
$3,082
3,365
5,402
2,817
1,600
1,600
1,600
1,600
1,600
1,600
21,286
2,522
18,174
2,587
Rule as
proposed
$3,361
3,646
6,402
3,270
1,836
1,836
1,836
1,836
1,836
1,836
24,275
2,872
20,701
2,947
Shorter time
frame
opt. 1 [a]
$8,344
5,526
2,717
1,836
1,836
1,836
1,836
1,836
1,836
1,836
26,238
3,102
22,898
3,260
Shorter time
frame
opt. 2 [a]
$5,046
6,402
4,304
2,389
1,836
1,836
1,836
1,836
1,836
1,836
25,806
3,052
22,298
3,174
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[a] Option 1 is a compliance time frame of one year for all entities. Option 2 is a compliance time frame of one year for large entities and three
years for small entities.
267 See Section 5, Regulatory Alternatives, in the
accompanying PRIA for the Department’s
methodology.
268 These are standards 1.3.4, 1.3.5, 1.4.10, 1.4.11,
1.4.12, 1.4.13, 2.1.4, 2.5.1, 2.5.2, 2.5.3, 2.5.4, and
4.1.3. More information is available at: W3C®,
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What’s New in WCAG 2.1 (Aug. 13, 2020), https://
www.w3.org/WAI/standards-guidelines/wcag/newin-21/ [https://perma.cc/W8HK-Z5QK].
269 See W3C®, Understanding Conformance,
Understanding Requirement 1 (Aug. 19, 2022),
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conformance [https://perma.cc/9ZG9-G5N8].
270 See Section 5, Regulatory Alternatives, in the
accompanying PRIA for the Department’s
methodology.
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b. Benefits of Regulatory Alternatives
A variety of assumptions were used to
estimate benefits for these regulatory
alternatives. For the alternative
compliance time frames, the Department
adjusted only the benefit accrual rates to
reflect the alternative time frames. Table
36 shows the 10-year average
annualized benefits decrease to $7.7
52013
billion from $8.9 billion with the longer
time frame and increase to either $10.7
billion or $9.7 billion with the shorter
time frames (using a 7 percent discount
rate).
TABLE 36—AVERAGE ANNUALIZED BENEFITS, REGULATORY ALTERNATIVES
[Millions] 271 [a]
Longer time
frame
Beneficiary
WCAG 2.1
Level A
WCAG 2.0
Level AA
Rule as
proposed
Shorter time
frame
opt. 1 [b]
Shorter time
frame
opt. 2 [b]
Time savings—current users ...................
Time savings—new users ........................
Time savings—governments ...................
Time savings—mobile apps .....................
Time savings—education .........................
Educational attainment ............................
$3,171.6
699.6
458.0
297.4
2,775.4
313.4
$2,696.9
170.3
83.6
252.9
2,766.6
224.7
$3,416.1
170.3
83.6
320.4
3,504.4
224.7
$3,416.1
753.5
493.3
320.4
3,504.4
449.5
$3,882.6
856.4
560.7
364.1
4,384.2
614.1
$3,469.8
765.3
501.1
325.4
4,070.8
597.6
Total ..................................................
7,715.4
6,195.1
7,719.5
8,937.2
10,662.1
9,730.0
ddrumheller on DSK120RN23PROD with PROPOSALS2
[a] 10-Year average annualized benefits, 7 percent discount rate.
[b] Option 1 is a compliance time frame of one year for all entities. Option 2 is a compliance time frame of one year for large entities and three
years for small entities.
programs, or activities of a State or local
government. The Department has
consistently made clear that this
requirement includes all services,
programs, and activities of public
entities, including those provided via
the web. It also includes those provided
via mobile apps. In this NPRM, the
Department proposes technical
standards for web and mobile app
accessibility to give public entities
greater clarity in exactly how to meet
their ADA obligations and to help
ensure equal access to government
services, programs, and activities for
people with disabilities.
Just as steps can exclude people who
use wheelchairs, inaccessible web
content can exclude people with a range
of disabilities from accessing
government services. For example, the
ability to access voting information, find
up-to-date health and safety resources,
and look up mass transit schedules and
fare information may depend on having
access to web content and mobile apps.
With accessible web content and mobile
apps people with disabilities can access
government services independently and
privately.
For the WCAG conformance level, the
alternative assumptions were less
straightforward to calculate. For time
savings for current website users,
current mobile app users, and
postsecondary students, the Department
used the ratio of the number of success
criteria under the different standards to
adjust benefit levels. Because the
literature used to assess the benefits of
compliance with WCAG 2.1 Level AA in
the primary analysis was based on
compliance with WCAG 2.0 Level AA,
the Department set benefits for
compliance with WCAG 2.0 Level AA
equal to the benefits in the primary
analysis. For WCAG 2.1 Level A, the
Department multiplied primary benefits
by 0.79 (based on the ratio of the
number of success criteria in WCAG 2.1
Level A to the number of success
criteria in WCAG 2.0 Level AA, or 30/
38).272
For time savings to new users and
State and local government entities, the
Department used the low and high
estimates for the less stringent and more
stringent conformance level alternatives,
respectively. For benefits of higher
educational attainment, the Department
simply multiplied by 0.5 and 1.5
respectively for the less stringent and
more stringent alternatives. The basis
for this is the gap in educational
achievement closing by 5 percent or 15
percent, rather than 10 percent (the
same alternative assumptions as used in
the sensitivity analysis).
B. Preliminary Regulatory Flexibility Act
(‘‘PRFA’’) Analysis Summary
Title II of the ADA provides that no
qualified individual with a disability
shall be excluded from participation in
or denied the benefits of the services,
2. Objectives of and Legal Basis for the
Proposed Rule
On July 26, 1990, President George
H.W. Bush signed into law the ADA, a
comprehensive civil rights law
prohibiting discrimination on the basis
of disability.273 Section 204(a) of the
ADA directs the Attorney General to
271 See Section 5, Regulatory Alternatives, in the
accompanying PRIA for the Department’s
methodology.
272 WCAG 2.0 Level AA has 38 success criteria,
and WCAG 2.1 Level A has 30. WGAG 2.0 Level
AA is used as the baseline because that is the
standard used by Sven Schmutz et al.,
Implementing Recommendations From Web
Accessibility Guidelines: A Comparative Study of
Nondisabled Users and Users with Visual
Impairments, 59 Human Factors and Ergonomics
Soc’y 956 (2017), https://doi.org/10.1177/
0018720817708397. A Perma archive link was
unavailable for this citation.
273 42 U.S.C. 12101–12213.
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As directed by the Regulatory
Flexibility Act of 1980, as amended by
the Small Business Regulatory
Enforcement Fairness Act of 1996, as
well as Executive Order 13272, the
Department is required to consider the
potential impact of the proposed rule on
small entities, including small
businesses, small non-profit
organizations, and small governmental
jurisdictions. This process helps
agencies to determine whether a
proposed rule is likely to impose a
significant economic impact on a
substantial number of small entities
and, in turn, to consider regulatory
alternatives to reduce the regulatory
burden on those small entities.This
proposed rule applies to all small
governmental jurisdictions. The
Department’s analysis leads it to
conclude that the impact on small
governmental jurisdictions affected by
the proposed rule will not be
significant, as measured by annualized
costs as a percent of annual revenues.
The Department presents this
Preliminary Regulatory Flexibility
Analysis for review and comment.
1. Why the Department is Considering
Action
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issue regulations implementing part A
of title II but exempts matters within the
scope of the authority of the Secretary
of Transportation under section 223,
229, or 244.274 Title II, which this rule
addresses, applies to State and local
government entities, and, in part A,
protects qualified individuals with
disabilities from discrimination on the
basis of disability in services, programs,
and activities provided by State and
local government entities.
Accordingly, the Department is
proposing technical requirements to
enable public entities to fulfill their
obligations under title II to provide
access to all of their services, programs,
and activities that are provided via the
web and mobile apps. The Department
believes the requirements described in
the NPRM are necessary to ensure the
‘‘equality of opportunity, full
participation, independent living, and
economic self-sufficiency’’ for
individuals with disabilities set forth in
the ADA.275
3. Number of Small Governments
Affected by the Rulemaking
ddrumheller on DSK120RN23PROD with PROPOSALS2
The Department has examined the
impact of the proposed rule on small
entities as required by the RFA. For the
purposes of this analysis, impacted
small public entities are independent
State and local governmental units in
the United States that serve a
population less than 50,000.276 Based
on this definition, the Department
estimates a total of 88,000 small entities.
This estimate includes the governments
of counties, municipalities, townships,
school districts, and territories with
populations below 50,000 in the 2020
Census of Governments.277 No State
governments qualify as small. All
special district governments 278 are
274 42 U.S.C. 12134(a). Sections 229(a) and 244 of
the ADA direct the Secretary of Transportation to
issue regulations implementing part B of title II,
except for section 223. See 42 U.S.C 12149; 42
U.S.C. 12164.
275 42 U.S.C. 12101(a)(7).
276 5 U.S.C. 601(5); Small Bus. Admin., A Guide
for Government Agencies: How to Comply with the
Regulatory Flexibility Act (Aug. 2017), https://
www.sba.gov/sites/default/files/advocacy/How-toComply-with-the-RFA-WEB.pdf [https://perma.cc/
C57B-YV28].
277 U.S. Census Bureau, 2020 State & Local
Government Finance Historical Datasets and Tables
(Sept. 2022), https://www2.census.gov/programssurveys/gov-finances/tables/2020/2020_Individual_
Unit_File.zip, Fin_PID_2020.txt file [https://
perma.cc/QJM3-N7SG].
278 The proposed rule defines ‘‘special district
government’’ as ‘‘a public entity—other than a
county, municipality, or township, or independent
school district—authorized by State law to provide
one function or a limited number of designated
functions with sufficient administrative and fiscal
autonomy to qualify as a separate government and
whose population is not calculated by the United
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included in this analysis because total
population for these public entities
could not be determined and the
Department wants to ensure small
governments are not undercounted.
The Census of Governments includes
enrollment numbers for school districts,
but not population counts. To
approximate population, the
Department multiplied the enrollment
numbers by the ratio of the estimated
total population to school age
population, by county.279 The
Department notes that this method of
estimating population of independent
school districts is inconsistent with the
population provisions in the proposed
rule’s regulatory text because the local
government finances data only include
enrollment numbers, not population
numbers. Postsecondary educational
institutions are considered as separate
institutions because their funding
sources are different from those of
traditional State and local government
entities. While public postsecondary
educational institutions receive funding
from State and local tax revenue, they
also receive funding from tuition and
fees from students and sometimes from
endowments. Public universities are
excluded from this analysis because
these tend to be State-dependent
institutions and all States have
populations greater than 50,000.
Independent community colleges were
removed from school district counts and
included separately. These were
combined with counts of dependent
community colleges from the National
Center for Education Statistics
(‘‘NCES’’).280
4. Impact of the Proposed Rule on Small
Governments
The Department calculated costs and
benefits to small governments. The
Department also compared costs to
revenues for small governments to
evaluate the economic impact to these
governments. The costs are less than 1
percent of revenues for every entity
type, so the Department believes that
States Census Bureau in the most recent decennial
Census or Small Area Income and Poverty
Estimates.’’ A special district government may
include, for example, a mosquito abatement district,
utility district, transit authority, water and sewer
board, zoning district, or other similar
governmental entities that operate with
administrative and fiscal independence.
279 U.S. Census Bureau, Annual County Resident
Population Estimates by Age, Sex, Race, and
Hispanic Origin: April 1, 2010 to July 1, 2019 (Oct.
2021), https://www.census.gov/data/datasets/timeseries/demo/popest/2010s-counties-detail.html
[https://perma.cc/SV98-ML2A].
280 Institute of Education Sciences, Summary
Tables, National Center for Education Statistics,
https://nces.ed.gov/ipeds/SummaryTables/ [https://
perma.cc/9SS9-D9T2].
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the costs of this proposed regulation
would not be overly burdensome for the
regulated small governments.281 These
costs include one-time costs for
familiarization with the requirements of
the rule; the purchase of software to
assist with remediation of the website or
mobile app; the time spent testing and
remediating websites and mobile apps
to comply with WCAG 2.1 Level AA;
and elementary, secondary, and
postsecondary education course content
remediation. Annual costs include
recurring costs for software licenses and
remediation of future content.
The Department performed analyses
to estimate the costs to test and
remediate inaccessible websites; mobile
apps; and elementary, secondary, and
postsecondary education course
content. These analyses involved
multistage stratified cluster sampling to
randomly select government entities,
government entity websites, and
government entity mobile apps. The
Department selected samples from each
type and size (small or large) of
government entity, estimated each type
of remediation cost, and then
extrapolated the costs to the population
of government entities in each
government type and size combination.
Annualized total costs for small
governments over a 10-year period are
estimated at $1.5 billion assuming either
a 3 percent or 7 percent discount rate
(Table 37). Additional details on how
these costs were estimated are provided
in Section VI.A.4 of this preamble.
The most recent revenue data
available are from the U.S. Census
Bureau’s State and Local Government
Finances by Level of Government and
by State: 2020.282 However, these data
do not disaggregate revenue by entity
type or size. Therefore, the Department
first estimated the proportion of total
local government revenue in each local
government entity type and size using
the 2012 U.S. Census Bureau’s database
on individual local government
281 As noted above and as a point of reference, the
United States Small Business Administration
advises agencies that a potential indicator that the
impact of a proposed regulation may be
‘‘significant’’ is whether the costs exceed 1 percent
of the gross revenues of the entities in a particular
sector, although the threshold may vary based on
the particular types of entities at issue. The
Department estimates that the costs of this
rulemaking for each government entity type are far
less than 1 percent of revenues. See Small Bus.
Admin., A Guide for Government Agencies: How to
Comply with the Regulatory Flexibility Act 19
(Aug. 2017), https://advocacy.sba.gov/wp-content/
uploads/2019/07/How-to-Comply-with-the-RFAWEB.pdf [https://perma.cc/MZW6-Y3MH].
282 U.S. Census Bureau, 2020 State & Local
Government Finance Historical Datasets and Tables
(Sept. 2022), https://www.census.gov/data/datasets/
2020/econ/local/public-use-datasets.html [https://
perma.cc/QJM3-N7SG].
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finances.283 The Department then
multiplied these proportions of the total
local government revenues in each
entity type by the 2020 total local
government revenue to calculate the
2020 revenue for the small entities in
each government type. Revenue data for
the small territories are from the U.S.
Government Accountability Office.284
The Department then multiplied these
2020 revenue numbers by the ratio of
the 2021 GDP deflator to the 2020 GDP
deflator to express these revenues in
2021 dollars.285 See Section VI.A.3.h for
additional details on how these revenue
numbers were derived.
Table 37 contains the costs and
revenues per government type, and cost-
to-revenue ratios using a 3 percent and
7 percent discount rate. The costs are
less than 1 percent of revenues for every
entity type, so the Department believes
that the costs of this proposed
regulation would not have a significant
economic impact on small entities
affected by the proposed rule.286
TABLE 37—NUMBER OF SMALL ENTITIES AND RATIO OF COSTS TO GOVERNMENT REVENUES
Government type
Number of
small entities
Average
annual cost
per entity
(3%) [c]
Average
annual cost
per entity
(7%) [c]
Total 10-year
average
annual costs
(3%) (millions)
Total 10-year
average
annual costs
(7%) (millions)
Annual
revenue
(millions)
Ratio of costs
to revenue
(3%)
Ratio of costs
to revenue
(7%)
County ...............................
Municipality ........................
Township ...........................
Special district ...................
School district [a] ...............
U.S. territory ......................
CCs [b] ..............................
CCs—independent ............
2,105
18,729
16,097
38,542
11,443
2
960
231
$9,601.6
18,269.9
15,135.0
1,893.1
31,964.3
116,995.3
449,163.1
449,163.1
$10,150.5
19,314.5
15,990.6
1,991.4
33,559.1
124,261.1
455,942.1
455,942.1
$20.2
342.2
243.6
73.0
365.8
0.2
431.2
103.8
$21.4
361.7
257.4
76.8
384.0
0.2
437.7
105.3
$65,044.3
184,538.9
55,818.9
278,465.3
330,746.4
1,242.5
N/A
11,340.2
0.03
0.19
0.44
0.03
0.11
0.02
N/A
0.91
0.03
0.20
0.46
0.03
0.12
0.02
N/A
0.93
Total (includes all
CCs) .......................
87,878
16,798.0
17,515.5
1,476.2
1,539.2
N/A
N/A
N/A
Total (only independent CCs) .........
87,149
13,181.3
13,848.1
1,148.7
1,206.8
927,196.7
0.12
0.13
ddrumheller on DSK120RN23PROD with PROPOSALS2
[a] Excludes community colleges, which are costed separately.
[b] Includes all dependent community college districts and the small independent community college districts. Revenue data are not available for the dependent
community college districts.
[c] This cost consists of regulatory familiarization costs (discussed in Section VI.A.4.a of this preamble), government website testing and remediation costs (Section
VI.A.4.b), mobile app testing and remediation costs (Section VI.A.4.c of this preamble), postsecondary education course remediation costs (Section VI.A.4.d of this
preamble), elementary and secondary education course remediation costs (Section VI.A.4.e), and costs for third-party websites (Section VI.A.4.f of this preamble)
averaged over ten years.
The Department quantified six types
of benefits in the Preliminary Regulatory
Impact Analysis.287 However, only one
of these types of benefits directly
impacts State and local government
entities’ budgets. Improved website
accessibility will lead some individuals
who accessed government services via
the phone, mail, or in person to begin
using the public entity’s website to
complete the task. This will generate
time savings for government employees.
The Department assumed that for each
of the 13.5 million new users of State
and local government entities’ websites,
there will be six fewer transactions that
require government personnel’s time,
and each of these will save the
government about 10 minutes of labor
time. This results in 13.5 million hours
saved. To determine the share
associated with small governments, the
Department multiplied by 80 percent,
which is the share of websites
associated with small governments.
The cost of this time is valued at the
median loaded wage for ‘‘Office and
Administrative Support Occupations’’
within Federal, State, and local
governments. According to the 2021
OEWS, the median hourly wage rate is
$22.19.288 This was multiplied by two
to account for benefits and overhead.289
This results in a loaded hourly wage
rate of $44.38 per hour. Multiplying
13.5 million hours by 80 percent and
$44.38 per hour results in time savings
to small State and local government
entities of $478.9 million. Assuming
lower benefits during the
implementation period 290 results in
average annualized benefits of $404.0
million and $393.3 million using a 3
percent and 7 percent discount rate,
respectively.
283 U.S. Census Bureau, Historical Data (Oct.
2021), https://www.census.gov/programs-surveys/
cog/data/historical-data.html [https://perma.cc/
UW25-6JPZ]. The Department was unable to find
more recent data with this level of detail.
Population counts were adjusted for estimated
population growth over the applicable period.
284 GAO, U.S. TERRITORIES: Public Debt
Outlook-2021 Update (June 2021), https://
www.gao.gov/assets/gao-21-508.pdf [https://
perma.cc/7Z2W-K8ZG].
285 Bureau of Economic Analysis, Table 1.1.9.
Implicit Price Deflators for Gross Domestic Product
(last updated Nov. 30, 2022), https://apps.bea.gov/
iTable/?reqid=19&step=3&isuri=1&1910=x&0=99&1921=survey&1903=13&1904=2015&
1905=2021&1906=a&1911=0 [https://perma.cc/
KNK8-EM6L].
286 As noted above and as a point of reference, the
United States Small Business Administration
advises agencies that a potential indicator that the
impact of a proposed regulation may be
‘‘significant’’ is whether the costs exceed 1 percent
of the gross revenues of the entities in a particular
sector, although the threshold may vary based on
the particular types of entities at issue. The
Department estimates that the costs of this
rulemaking for each government entity type are far
less than 1 percent of revenues. See Small Bus.
Admin., A Guide for Government Agencies: How to
Comply with the Regulatory Flexibility Act 19 (Aug.
2017), https://advocacy.sba.gov/wp-content/
uploads/2019/07/How-to-Comply-with-the-RFAWEB.pdf [https://perma.cc/MZW6-Y3MH].
Dependent community college costs (community
colleges that are operated by a government entity
rather than being an independent school district)
are not compared to revenues. Revenues are not
available directly for these community colleges, and
the Department is unable to determine how to
distribute these entities’ costs across the State and
local government entity types. Additionally, it is
unclear if all public college and university revenue
(e.g., tuition, fees) is included in the revenue
recorded for the State or local entities on which the
school is dependent.
287 See Section 4, Impact of the Proposed Rule on
Small Governments, of the accompanying PRFA for
more details.
288 U.S. Bureau of Labor Statistics, May 2021
National Industry-Specific Occupational
Employment and Wage Estimates (last updated
Mar. 2022), https://www.bls.gov/oes/current/
naics2_99.htm#43-0000 [https://perma.cc/SGS79GXP].
289 Department of Justice guidance was
unavailable, so the Department used guidance from
a different agency that frequently engages in
rulemakings. U.S. Dep’t of Health and Human
Services Office of the Assistant Secretary for
Planning and Evaluation, Guidelines for Regulatory
Impact Analyses (2016), https://aspe.hhs.gov/
reports/guidelines-regulatory-impact-analysis
[https://perma.cc/7NVQ-AG8S].
290 See Section VI.A.5.c.i.
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5. Relevant Federal Rules Duplicating,
Overlapping, or Conflicting With the
Proposed Rule
The Department has determined that
there are no other Federal rules that are
either in conflict with this proposed
rule or are duplicative of it. The
Department recognizes that there is a
potential for overlap with other Federal
nondiscrimination laws because entities
subject to title II of the ADA also are
subject to title I of the ADA, which
prohibits discrimination on the basis of
disability in employment. Some public
entities subject to title II may also be
subject to section 504 of the
Rehabilitation Act, which prohibits
discrimination on the basis of disability
in programs and activities that receive
Federal financial assistance. The
regulation implementing title II of the
ADA does not, however, invalidate or
limit the remedies, rights, and
procedures available under any other
Federal, State, or local laws that provide
greater or equal protection for the rights
of individuals with disabilities (or
individuals associated with them).
Compliance with the Department’s title
II regulation, therefore, does not ensure
compliance with other Federal laws.
6. Alternatives to the Proposed Rule
The Department has considered three
less-restrictive compliance alternatives
for small governments. The first is a
longer compliance period of four years
for small public entities and special
district governments, for which the
Department adjusted its assumptions as
to the pace at which entities would
incur initial testing and remediation
costs. Additionally, two less restrictive
conformance levels were considered:
WCAG 2.1 Level A and WCAG 2.0 Level
AA. To estimate the costs of requiring
conformance only with WCAG 2.1 Level
A success criteria, the Department
duplicated its website cost methodology
discussed in Section VI.A.4.b of this
preamble while omitting from
consideration any errors that violate
WCAG 2.1 Level AA success criteria
only. Accessibility errors that violated
both WCAG 2.1 Level A and WCAG 2.1
Level AA success criteria were retained.
WCAG 2.1 introduced 12 new success
criteria for Levels A and AA.291 To
estimate the costs of requiring WCAG
2.0 Level AA rather than WCAG 2.1
Level AA compliance, the Department
replicated its website cost methodology
from Section VI.A.4.b while omitting
any errors classified under one or more
of these new success criteria. Costs and
benefits of these regulatory alternatives
for all governments are presented in
Section 5, Regulatory Alternatives, of
the accompanying PRIA. Here, the
Department summarizes the costs and
benefits of these regulatory alternatives
for small entities.
Costs for small public entities differ
for the regulatory alternatives as
explained in Section 6, Alternatives to
the Proposed Rule, of the accompanying
PRIA. The results are summarized in
Table 38.
TABLE 38—AVERAGE ANNUALIZED COSTS FOR SMALL ENTITIES OF REGULATORY ALTERNATIVES, 7 PERCENT DISCOUNT
RATE
[Millions] 292
Rule as
proposed
Government type
WCAG 2.1
Level A
WCAG 2.0
Level AA
Longer
implementation
period
County ........................................................................................................
Municipality ................................................................................................
Township ....................................................................................................
Special district ............................................................................................
School district [a] .......................................................................................
U.S. territory ...............................................................................................
CCs [b] .......................................................................................................
CCs—independent .....................................................................................
$21.4
361.7
257.4
76.8
384.0
0.2
437.7
105.3
$21.2
360.8
256.5
76.7
383.1
0.2
436.5
105.0
$21.8
366.5
261.5
86.7
382.5
0.2
357.5
86.0
$20.6
348.9
248.8
82.9
362.2
0.2
392.8
94.5
Total (includes all CCs) ......................................................................
1,539.2
1,535.1
1,476.8
1,456.4
Total (only independent CCs) ............................................................
1,206.8
1,203.6
1,205.3
1,158.1
ddrumheller on DSK120RN23PROD with PROPOSALS2
[a] Excludes community colleges, which are costed separately.
[b] Includes all dependent community college districts and the small independent community college districts.
Benefit methodology for regulatory
alternatives is explained in Section
VI.A.6 of this preamble. Here, the
Department applies that same
methodology to small entities. Using a
longer compliance period, the
Department estimates average
annualized benefits would be slightly
lower because benefits would not accrue
as quickly. The Department estimates
average annualized benefits of $378.2
million and $365.2 million using a 3
percent and 7 percent discount rate,
respectively (compared with $404.0
million and $393.3 million associated
with the rule as proposed).
The Department altered four
assumptions to estimate the benefits
associated with WCAG 2.1 Level A and
WCAG 2.0 Level AA. These are the
same assumptions altered for the
sensitivity analysis in Section VI.A.5.c.ii
of this preamble. First, ACS prevalence
rates were used in lieu of SIPP
estimates. Second, rather than assuming
website usage becomes equivalent for
individuals with and without relevant
disabilities, the Department assumed
this gap only closes by 75 percent.
Third, the average time spent per
transaction was reduced by 25 percent.
Fourth, the average number of
transactions per year was reduced by 25
percent. Incorporating these alternative
assumptions reduces the cost savings for
small governments to $68.5 million and
$66.7 million using a 3 percent and 7
percent discount rate, respectively (from
$404.0 million and $393.3 million
associated with the rule as proposed).
291 These are Success Criteria 1.3.4, 1.3.5, 1.4.10,
1.4.11, 1.4.12, 1.4.13, 2.1.4, 2.5.1, 2.5.2, 2.5.3, 2.5.4,
and 4.1.3. Success Criteria 1.3.6, 2.2.6, 2.3.3, 2.5.5,
and 2.5.6 were newly introduced at Level AAA. See
W3C,® What’s New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/
wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
292 See Section 6, Alternatives to the Proposed
Rule, in the accompanying PRFA for the
Department’s methodology.
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C. Executive Order 13132: Federalism
Executive Order 13132 requires
executive branch agencies to consider
whether a proposed rule will have
federalism implications.293 That is, the
rulemaking agency must determine
whether the rule is likely to have
substantial direct effects on State and
local governments, on the relationship
between the Federal Government and
the States and localities, or on the
distribution of power and
responsibilities among the different
levels of government. If an agency
believes that a proposed rule is likely to
have federalism implications, it must
consult with State and local government
officials about how to minimize or
eliminate the effects.
Title II of the ADA covers State and
local government services, programs,
and activities, and, therefore, clearly has
some federalism implications. State and
local government entities have been
subject to the ADA since 1991, and the
many State and local government
entities that receive Federal financial
assistance have also been required to
comply with the requirements of section
504 of the Rehabilitation Act. Hence, the
ADA and the title II regulation are not
novel for State and local governments.
This proposed rule will preempt State
laws affecting entities subject to the
ADA only to the extent that those laws
provide less protection for the rights of
individuals with disabilities. This
proposed rule does not invalidate or
limit the remedies, rights and
procedures of any State laws that
provide greater or equal protection for
the rights of individuals with
disabilities.
The Department intends to amend the
regulation in a manner that meets the
objectives of the ADA while also
minimizing conflicts between State law
and Federal interests. The Department is
now soliciting comments from State and
local officials and their representative
national organizations through this
NPRM. The Department seeks comment
from all interested parties about the
potential federalism implications of the
proposed rule. The Department
welcomes comments on the proposed
rule’s effects on State and local
governments, and on whether the
proposed rule may have direct effects on
the relationship between the Federal
Government and the States, or the
distribution of power and
responsibilities among the various
levels of government.
293 64
FR 43255 (Aug. 4, 1999).
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D. National Technology Transfer and
Advancement Act of 1995
The National Technology Transfer
and Advancement Act of 1995
(‘‘NTTAA’’) directs that, as a general
matter, all Federal agencies and
departments shall use technical
standards that are developed or adopted
by voluntary consensus standards
bodies, which are private, generally
nonprofit organizations that develop
technical standards or specifications
using well-defined procedures that
require openness, balanced
participation among affected interests
and groups, fairness and due process,
and an opportunity for appeal, as a
means to carry out policy objectives or
activities.294 In addition, the NTTAA
directs agencies to consult with
voluntary, private sector, consensus
standards bodies and requires that
agencies participate with such bodies in
the development of technical standards
when such participation is in the public
interest and is compatible with agency
and departmental missions, authorities,
priorities, and budget resources.295
As discussed previously, the
Department is proposing to adopt the
Web Content Accessibility Guidelines
2.1 Level AA as the accessibility
standard to apply to web content and
mobile apps of title II entities. WCAG
2.1 was developed by the W3C®, which
has been the principal international
organization involved in developing
protocols and guidelines for the web.
The W3C® develops a variety of
technical standards and guidelines,
including ones relating to privacy,
internationalization of technology,
and—as detailed above—accessibility.
Thus, the Department believes it is
complying with the NTTAA in selecting
WCAG 2.1 as the applicable
accessibility standard. However, the
Department is interested in comments
from the public addressing our use of
WCAG 2.1.
E. Plain Language Instructions
The Department makes every effort to
promote clarity and transparency in its
rulemaking. In any regulation, there is a
tension between drafting language that
is simple and straightforward and
drafting language that gives full effect to
issues of legal interpretation. The
Department operates a toll-free ADA
Information Line at (800) 514–0301
(voice); 1–833–610–1264 (TTY) that the
public is welcome to call for assistance
understanding anything in this
proposed rule. If any commenter has
294 Public Law 104–113, 12(d)(1) (15 U.S.C. 272
note).
295 Id. § 12(d)(2).
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suggestions for how the regulation could
be written more clearly, please contact
Rebecca B. Bond, Chief, Disability
Rights Section, whose contact
information is provided in the
introductory section of this proposed
rule entitled, FOR FURTHER INFORMATION
CONTACT.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (‘‘PRA’’), no person is required
to respond to a ‘‘collection of
information’’ unless the agency has
obtained a control number from
OMB.296 This proposed rule does not
contain any collections of information
as defined by the PRA.
G. Unfunded Mandates Reform Act
Section 4(2) of the Unfunded
Mandates Reform Act of 1995 297
excludes from coverage under that Act
any proposed or final Federal regulation
that ‘‘establishes or enforces any
statutory rights that prohibit
discrimination on the basis of race,
color, religion, sex, national origin, age,
handicap, or disability.’’ Accordingly,
this rulemaking is not subject to the
provisions of the Unfunded Mandates
Reform Act.
H. Incorporation by Reference
As discussed above, the Department
proposes to adopt the internationally
recognized accessibility standard for
web access, the Web Content
Accessibility Guidelines (‘‘WCAG’’) 2.1
Level AA, published in June 2018, as
the technical standard for web and
mobile app accessibility under title II of
the ADA. WCAG 2.1, published by the
World Wide Web Consortium (‘‘W3C®’’)
Web Accessibility Initiative (‘‘WAI’’),
specifies success criteria and
requirements to make web content more
accessible to all users, including
persons with disabilities. The
Department incorporates WCAG 2.1
Level AA by reference into this rule,
instead of restating all of its
requirements verbatim. As noted above,
to the extent there are distinctions
between WCAG 2.1 Level AA and the
standards articulated in this rule, the
standards articulated in this rule
prevail.
The Department notes that when the
W3C® publishes new versions of
WCAG, those versions will not be
automatically incorporated into this
rule. Federal agencies cannot
incorporate by reference future versions
of standards developed by bodies like
the W3C®. Federal agencies are required
296 44
297 2
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to identify the particular version of a
standard incorporated by reference in a
regulation.298 When an updated version
of a standard is published, an agency
must revise its regulation if it seeks to
incorporate any of the new material.
WCAG 2.1 is reasonably available to
interested parties. Free copies of WCAG
2.1 are available online on the W3C®’s
website at https://www.w3.org/TR/
WCAG21/ [https://perma.cc/UB8AGG2F]. In addition, a copy of WCAG 2.1
is also available for inspection at the
Disability Rights Section, Civil Rights
Division, U.S. Department of Justice,
150 M St. NE, 9th Floor, Washington,
DC 20002 by appointment.
VII. Proposed Regulatory Text
List of Subjects for 28 CFR Part 35
Administrative practice and
procedure, Civil rights,
Communications, Incorporation by
reference, Individuals with disabilities,
State and local requirements.
By the authority vested in me as
Attorney General by law, including 5
U.S.C. 301; 28 U.S.C. 509, 510; sections
201 and 204 of the of the Americans
with Disabilities Act, Public Law 101–
336, as amended, and section 506 of the
ADA Amendments Act of 2008, Public
Law. 110–325, 28 CFR part 35 is
proposed to be amended as follows—
PART 35—NONDISCRIMINATION ON
THE BASIS OF DISABILITY IN STATE
AND LOCAL GOVERNMENT SERVICES
1. The authority citation for part 35
continues to read as follows:
■
Authority: 5 U.S.C. 301; 28 U.S.C. 509,
510; 42 U.S.C. 12134, 12131, and 12205a.
Subpart A—General
2. Amend § 35.104 by adding
definitions for Archived web content,
Conventional electronic documents,
Mobile applications (apps), Special
district government, Total population,
WCAG 2.1, and Web content in
alphabetical order to read as follows:
■
§ 35.104
Definitions.
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*
*
*
*
*
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
298 See, e.g., 1 CFR 51.1(f) (‘‘Incorporation by
reference of a publication is limited to the edition
of the publication that is approved [by the Office
of Federal Register. Future amendments or revisions
of the publication are not included.’’).
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(3) Is organized and stored in a
dedicated area or areas clearly identified
as being archived.
*
*
*
*
*
Conventional electronic documents
means web content or content in mobile
apps that is in the following electronic
file formats: portable document formats
(‘‘PDF’’), word processor file formats,
presentation file formats, spreadsheet
file formats, and database file formats.
*
*
*
*
*
Mobile applications (‘‘apps’’) means
software applications that are
downloaded and designed to run on
mobile devices, such as smartphones
and tablets.
*
*
*
*
*
Special district government means a
public entity—other than a county,
municipality, or township, or
independent school district—authorized
by State law to provide one function or
a limited number of designated
functions with sufficient administrative
and fiscal autonomy to qualify as a
separate government and whose
population is not calculated by the
United States Census Bureau in the
most recent decennial Census or Small
Area Income and Poverty Estimates.
*
*
*
*
*
Total population means the
population estimate for a public entity
as calculated by the United States
Census Bureau in the most recent
decennial Census or, if a public entity
is an independent school district, the
population estimate as calculated by the
United States Census Bureau in the
most recent Small Area Income and
Poverty Estimates.
*
*
*
*
*
WCAG 2.1 means the Web Content
Accessibility Guidelines (‘‘WCAG’’) 2.1,
W3C® Recommendation 05 June 2018,
https://www.w3.org/TR/2018/RECWCAG21-20180605/ [https://perma.cc/
UB8A-GG2F]. WCAG 2.1 is incorporated
by reference elsewhere in this part (see
§ 35.200 and 35.202).
Web content means information or
sensory experience—including the
encoding that defines the content’s
structure, presentation, and
interactions—that is communicated to
the user by a web browser or other
software. Examples of web content
include text, images, sounds, videos,
controls, animations, and conventional
electronic documents.
Subpart H—Web and Mobile
Accessibility
3. Add new subpart H to read as
follows:
■
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Subpart H—Web and Mobile
Accessibility
Sec.
35.200 Requirements for web and mobile
accessibility.
35.201 Exceptions.
35.202 Conforming alternate versions.
35.203 Equivalent facilitation.
35.204 Duties.
35.205–35.209 [Reserved]
§ 35.200 Requirements for web and mobile
accessibility.
(a) General. A public entity shall
ensure that the following are readily
accessible to and usable by individuals
with disabilities:
(1) Web content that a public entity
makes available to members of the
public or uses to offer services,
programs, or activities to members of
the public; and
(2) Mobile apps that a public entity
makes available to members of the
public or uses to offer services,
programs, or activities to members of
the public.
(b) Requirements
(1) Effective two years from the
publication of this rule in final form, a
public entity, other than a special
district government, with a total
population of 50,000 or more shall
ensure that the web content and mobile
apps it makes available to members of
the public or uses to offer services,
programs, or activities to members of
the public comply with Level A and
Level AA success criteria and
conformance requirements specified in
WCAG 2.1, unless the public entity can
demonstrate that compliance with this
section would result in a fundamental
alteration in the nature of a service,
program, or activity or in undue
financial and administrative burdens.
(2) Effective three years from the
publication of this rule in final form, a
public entity with a total population of
less than 50,000 or any public entity
that is a special district government
shall ensure that the web content and
mobile apps it makes available to
members of the public or uses to offer
services, programs, or activities to
members of the public comply with
Level A and Level AA success criteria
and conformance requirements
specified in WCAG 2.1, unless the
public entity can demonstrate that
compliance with this section would
result in a fundamental alteration in the
nature of a service, program, or activity
or in undue financial and administrative
burdens.
(3) WCAG 2.1 is incorporated by
reference into this section with the
approval of the Director of the Federal
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Register under 5 U.S.C. 552(a) and 1
CFR part 51. All approved incorporation
by reference (‘‘IBR’’) material is
available for inspection at the U.S.
Department of Justice and at the
National Archives and Records
Administration (‘‘NARA’’). Contact the
U.S. Department of Justice at: Disability
Rights Section, Civil Rights Division,
U.S. Department of Justice, 150 M St.
NE, 9th Floor, Washington, DC 20002;
ADA Information Line: (800) 514–0301
(voice) or 1–833–610–1264 (TTY);
website: www.ada.gov. For information
on the availability of this material at
NARA, visit www.archives.gov/federalregister/cfr/ibr-locations.html or email
fr.inspection@nara.gov. The material
may be obtained from the World Wide
Web Consortium (‘‘W3C®’’) Web
Accessibility Initiative (‘‘WAI’’), 401
Edgewater Place, Suite 600, Wakefield,
MA 01880; phone: (339) 273–2711;
email: contact@w3.org; website:
www.w3.org/TR/2018/REC-WCAG2120180605/ [https://perma.cc/UB8AGG2F].
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§ 35.201
Exceptions.
The requirements of § 35.200 of this
chapter do not apply to the following:
(a) Archived web content. Archived
web content as defined in § 35.104 of
this chapter.
(b) Preexisting conventional electronic
documents. Conventional electronic
documents created by or for a public
entity that are available on a public
entity’s website or mobile app before the
date the public entity is required to
comply with this rule, unless such
documents are currently used by
members of the public to apply for, gain
access to, or participate in a public
entity’s services, programs, or activities.
(c) Web content posted by a third
party. Web content posted by a third
party that is available on a public
entity’s website.
(d) Linked third-party web content.
Third-party web content linked from a
public entity’s website, unless the
public entity uses the third-party web
content to allow members of the public
to participate in or benefit from the
public entity’s services, programs, or
activities.
(e) Public postsecondary institutions:
password-protected course content.
Except as provided in paragraphs (e)(1)
and (2) of this section, course content
available on a public entity’s passwordprotected or otherwise secured website
for admitted students enrolled in a
specific course offered by a public
postsecondary institution.
(1) This exception does not apply if a
public entity is on notice that an
admitted student with a disability is
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pre-registered in a specific course
offered by a public postsecondary
institution and that the student, because
of a disability, would be unable to
access the content available on the
public entity’s password-protected or
otherwise secured website for the
specific course. In such circumstances,
all content available on the public
entity’s password-protected or
otherwise secured website for the
specific course must comply with the
requirements of § 35.200 by the date the
academic term begins for that course
offering. New content added throughout
the term for the course must also
comply with the requirements of
§ 35.200 at the time it is added to the
website.
(2) This exception does not apply
once a public entity is on notice that an
admitted student with a disability is
enrolled in a specific course offered by
a public postsecondary institution after
the start of the academic term and that
the student, because of a disability,
would be unable to access the content
available on the public entity’s
password-protected or otherwise
secured website for the specific course.
In such circumstances, all content
available on the public entity’s
password-protected or otherwise
secured website for the specific course
must comply with the requirements of
§ 35.200 within five business days of
such notice. New content added
throughout the term for the course must
also comply with the requirements of
§ 35.200 at the time it is added to the
website.
(f) Public elementary and secondary
schools: password-protected class or
course content. Except as provided in
paragraphs (f)(1) through (4) of this
section, class or course content available
on a public entity’s password-protected
or otherwise secured website for
students enrolled, or parents of students
enrolled, in a specific class or course at
a public elementary or secondary
school.
(1) This exception does not apply if
the public entity is on notice of the
following: a student with a disability is
pre-registered in a specific class or
course offered by a public elementary or
secondary school and that the student,
because of a disability, would be unable
to access the content available on the
public entity’s password-protected or
otherwise secured website for the
specific class or course. In such
circumstances, all content available on
the public entity’s password-protected
or otherwise secured website for the
specific class or course must comply
with the requirements of § 35.200 by the
date the term begins for that class or
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52019
course. New content added throughout
the term for the class or course must
also comply with the requirements of
§ 35.200 at the time it is added to the
website.
(2) This exception does not apply if
the public entity is on notice of the
following: a student is pre-registered in
a public elementary or secondary
school’s class or course, the student’s
parent has a disability, and the parent,
because of a disability, would be unable
to access the content available on the
password-protected or otherwise
secured website for the specific class or
course. In such circumstances, all
content available on the public entity’s
password-protected or otherwise
secured website for the specific class or
course must comply with the
requirements of § 35.200 by the date the
term begins for that class or course. New
content added throughout the term for
the class or course must also comply
with the requirements of § 35.200 at the
time it is added to the website.
(3) This exception does not apply
once a public entity is on notice of the
following: a student with a disability is
enrolled in a public elementary or
secondary school’s class or course after
the term begins and that the student,
because of a disability, would be unable
to access the content available on the
public entity’s password-protected or
otherwise secured website for the
specific class or course. In such
circumstances, all content available on
the public entity’s password-protected
or otherwise secured website for the
specific class or course must comply
with the requirements of § 35.200
within five business days of such notice.
New content added throughout the term
for the class or course must also comply
with the requirements of § 35.200 at the
time it is added to the website.
(4) This exception also does not apply
once a public entity is on notice of the
following: a student is enrolled in a
public elementary or secondary school’s
class or course after the term begins, and
the student’s parent has a disability, and
the parent, because of a disability,
would be unable to access the content
available on the public entity’s
password-protected or otherwise
secured website for the specific class or
course. In such circumstances, all
content available on the public entity’s
password-protected or otherwise
secured website for the specific class or
course must comply with the
requirements of § 35.200 within five
business days of such notice. New
content added throughout the term for
the class or course must also comply
with the requirements of § 35.200 at the
time it is added to the website.
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(g) Individualized, passwordprotected documents. Conventional
electronic documents that are: (1) about
a specific individual, their property, or
their account; and (2) passwordprotected or otherwise secured.
§ 35.202
Conforming alternate versions.
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(a) A public entity may use
conforming alternate versions of
websites and web content, as defined by
WCAG 2.1, to comply with § 35.200
only where it is not possible to make
websites and web content directly
accessible due to technical or legal
limitations.
(b) WCAG 2.1 is incorporated by
reference into this section with the
approval of the Director of the Federal
Register under 5 U.S.C. 552(a) and 1
CFR part 51. All approved incorporation
by reference (‘‘IBR’’) material is
available for inspection at the U.S.
Department of Justice and at the
National Archives and Records
Administration (‘‘NARA’’). Contact the
U.S. Department of Justice at: Disability
Rights Section, Civil Rights Division,
U.S. Department of Justice, 150 M St.
NE, 9th Floor, Washington, DC 20002;
ADA Information Line: (800) 514–0301
(voice) or 1–833–610–1264 (TTY);
website: www.ada.gov. For information
on the availability of this material at
NARA, visit www.archives.gov/federal-
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register/cfr/ibr-locations.html or email
fr.inspection@nara.gov. The material
may be obtained from the World Wide
Web Consortium (‘‘W3C®’’) Web
Accessibility Initiative (‘‘WAI’’), 401
Edgewater Place, Suite 600, Wakefield,
MA 01880; phone: (339) 273–2711;
email: contact@w3.org; website:
www.w3.org/TR/2018/REC-WCAG2120180605/ [https://perma.cc/UB8AGG2F].
§ 35.203
Equivalent facilitation.
Nothing in this subpart prevents the
use of designs, methods, or techniques
as alternatives to those prescribed,
provided that the alternative designs,
methods or techniques result in
substantially equivalent or greater
accessibility and usability of the web
content or mobile app.
§ 35.204
Duties.
Where a public entity can
demonstrate that full compliance with
the requirements of § 35.200 would
result in a fundamental alteration in the
nature of a service, program, or activity
or in undue financial and administrative
burdens, compliance with § 35.200 is
required to the extent that it does not
result in a fundamental alteration or
undue financial and administrative
burdens. In those circumstances where
personnel of the public entity believe
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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
§ 35.200 would result in such alteration
or burdens. The decision that
compliance would result in such
alteration or burdens must be made by
the head of a public entity or their
designee after considering all resources
available for use in the funding and
operation of the service, program, or
activity, and must be accompanied by a
written statement of the reasons for
reaching that conclusion. If an action
would result in such an alteration or
such burdens, a public entity shall take
any other action that would not result
in such an alteration or such burdens
but would nevertheless ensure that
individuals with disabilities receive the
benefits or services provided by the
public entity to the maximum extent
possible.
§ § 35.205–35.209
[Reserved]
Dated: July 21, 2023.
Merrick B. Garland,
Attorney General.
[FR Doc. 2023–15823 Filed 8–3–23; 8:45 am]
BILLING CODE 4410–13–P
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]]>Agencies
[Federal Register Volume 88, Number 149 (Friday, August 4, 2023)]
[Proposed Rules]
[Pages 51948-52020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15823]
[[Page 51947]]
Vol. 88
Friday,
No. 149
August 4, 2023
Part III
Department of Justice
-----------------------------------------------------------------------
28 CFR Part 35
Nondiscrimination on the Basis of Disability; Accessibility of Web
Information and Services of State and Local Government Entities;
Proposed Rule
Federal Register / Vol. 88 , No. 149 / Friday, August 4, 2023 /
Proposed Rules
[[Page 51948]]
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DEPARTMENT OF JUSTICE
28 CFR Part 35
[CRT Docket No. 144; AG Order No. 5729-2023]
RIN 1190-AA79
Nondiscrimination on the Basis of Disability; Accessibility of
Web Information and Services of State and Local Government Entities
AGENCY: Civil Rights Division, Department of Justice.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Justice (``Department'') is proposing to
revise the regulation implementing title II of the Americans with
Disabilities Act (``ADA'') in order to establish specific requirements,
including the adoption of specific technical standards, for making
accessible the services, programs, and activities offered by State and
local Government entities to the public through the web and mobile
apps.
DATES: Written comments must be postmarked, and electronic comments
must be submitted, on or before October 3, 2023. Commenters should be
aware that the electronic Federal Docket Management System (``FDMS'')
will accept comments submitted prior to midnight Eastern Time on the
last day of the comment period. Written comments postmarked on or
before the last day are considered timely even though they may be
received after the end of the comment period. Late comments are highly
disfavored. The Department is not required to consider late comments.
ADDRESSES: You may submit comments, identified by RIN 1190-AA79 (or
Docket ID No. 144), by any one of the following methods:
Federal eRulemaking Website: www.regulations.gov. Follow
the website's instructions for submitting comments.
Regular U.S. Mail: Disability Rights Section, Civil Rights
Division, U.S. Department of Justice, P.O. Box 440528, Somerville, MA
02144.
Overnight, Courier, or Hand Delivery: Disability Rights
Section, Civil Rights Division, U.S. Department of Justice, 150 M St.
NE, 9th Floor, Washington, DC 20002.
FOR FURTHER INFORMATION CONTACT: Rebecca B. Bond, Chief, Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, at
(202) 307-0663 (voice or TTY). This is not a toll-free number.
Information may also be obtained from the Department's toll-free ADA
Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY). You
may obtain copies of this NPRM in an alternative format by calling the
ADA Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY).
A link to this NPRM is also available on www.ada.gov.
Electronic Submission of Comments and Posting of Public Comments
Interested persons are invited to participate in this rulemaking by
submitting written comments on all aspects of this rule via one of the
methods and by the deadline stated above. When submitting comments,
please include ``RIN 1190-AA79'' in the subject field. The Department
also invites comments that relate to the economic, environmental, or
federalism effects that might result from this rule. Comments that will
provide the most assistance to the Department in developing this rule
will reference a specific portion of the rule or respond to a specific
question, explain the reason for any recommended change, and include
data, information, or authority that support such recommended change.
Please note that all comments received are considered part of the
public record and made available for public inspection at https://www.regulations.gov. Such information includes personally identifiable
information (``PII'') (such as your name and address). Interested
persons are not required to submit their PII in order to comment on
this rule. However, any PII that is submitted is subject to being
posted to the publicly accessible https://www.regulations.gov/ site
without redaction.
Confidential business information clearly identified in the first
paragraph of the comment as such will not be placed in the public
docket file.
The Department may withhold from public viewing information
provided in comments that they determine may impact the privacy of an
individual or is offensive. For additional information, please read the
Privacy Act notice that is available via the link in the footer of
https://www.regulations.gov. To inspect the agency's public docket file
in person, you must make an appointment with the agency. Please see the
FOR FURTHER INFORMATION CONTACT paragraph above for agency contact
information.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of Proposed Rule and Need for the Rule
Title II of the ADA provides that no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or denied the benefits of the services, programs, or
activities of a State or local government entity.\1\ The Department
uses the phrases ``State and local government entities'' and ``public
entities'' interchangeably throughout this Notice of Proposed
Rulemaking (``NPRM'') to refer to ``public entities'' as defined in 42
U.S.C. 12131(1) that are covered under part A of title II of the ADA.
The Department has consistently made clear that the title II
nondiscrimination provision applies to all services, programs, and
activities of public entities, including those provided via the web. It
also includes those provided via mobile applications (``apps''), which,
as discussed in the proposed definition, are software applications that
are designed to be downloaded and run on mobile devices such as
smartphones and tablets. In this NPRM, the Department proposes
technical standards for web content and mobile app accessibility to
give public entities greater clarity in exactly how to meet their ADA
obligations and to help ensure equal access to public entities'
services, programs, and activities (also referred to as ``government
services'') for people with disabilities.
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\1\ 42 U.S.C. 12132.
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Public entities are increasingly providing the public access to
government services through their web content and mobile apps. For
example, government websites and mobile apps often allow the public to
obtain information or correspond with local officials without having to
wait in line or be placed on hold. Members of the public can also pay
fines, apply for State benefits, renew State-issued identification,
register to vote, file taxes, request copies of vital records, and
complete numerous other tasks via government websites. Individuals can
often perform many of these same functions on mobile apps.
Additionally, as discussed further, web- and mobile app-based access to
these programs and activities has become especially critical since the
start of the COVID-19 pandemic. Often, however, State and local
government entities' web- and mobile app-based services are not
designed accessibly and as a result are not equally available to
individuals with disabilities.
[[Page 51949]]
It is critical to ensure that people with disabilities can access
important web content and mobile apps quickly, easily, independently,
and equally. Just as steps can exclude people who use wheelchairs,
inaccessible web content can exclude people with a range of
disabilities from accessing government services. For example, access to
voting information, up-to-date health and safety resources, and mass
transit schedules and fare information may depend on having access to
websites and mobile apps. With accessible web content and mobile apps,
people with disabilities can access government services independently
and in some cases with more privacy. By allowing people with
disabilities to engage more fully with their governments, accessible
web content and mobile apps also promote the equal enjoyment of
fundamental constitutional rights, such as the rights to freedom of
speech, assembly, association, petitioning, and due process of law.
Accordingly, the Department is proposing technical requirements to
provide concrete standards to public entities on how to fulfill their
obligations under title II to provide equal access to all of their
services, programs, and activities that are provided via the web and
mobile apps. The Department believes the requirements described in this
rule are necessary to ensure ``equality of opportunity, full
participation, independent living, and economic self-sufficiency'' for
individuals with disabilities, as set forth in the ADA.\2\
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\2\ 42 U.S.C. 12101(a)(7).
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B. Legal Authority
On July 26, 1990, President George H.W. Bush signed into law the
ADA, a comprehensive civil rights law prohibiting discrimination on the
basis of disability.\3\ Title II of the ADA, which this rule addresses,
applies to State and local government entities. Title II extends the
prohibition on discrimination established by section 504 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, to all
activities of State and local government entities regardless of whether
the entities receive Federal financial assistance.\4\ Part A of title
II protects qualified individuals with disabilities from discrimination
on the basis of disability in services, programs, and activities
provided by State and local government entities. Section 204(a) of the
ADA directs the Attorney General to issue regulations implementing part
A of title II but exempts matters within the scope of the authority of
the Secretary of Transportation under section 223, 229, or 244.\5\
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\3\ 42 U.S.C. 12101-12213.
\4\ 42 U.S.C. 12131-65.
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The Department of Justice is the only Federal agency with authority
to issue regulations under title II, part A, of the ADA regarding the
accessibility of State and local government entities' web content and
mobile apps. In addition, under Executive Order 12250, the Department
of Justice is responsible for ensuring consistency and effectiveness in
the implementation of section 504 across the Federal Government (aside
from provisions relating to equal employment). Given Congress's intent
for parity between section 504 and title II of the ADA, the Department
must also ensure that any interpretations of section 504 are consistent
with title II (and vice versa).\6\ The Department, therefore, also has
a lead role in coordinating interpretations of section 504 (again,
aside from provisions relating to equal employment), including its
application to websites and mobile apps, across the Federal Government.
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\5\ See 42 U.S.C. 12134. Section 229(a) and section 244 of the
ADA direct the Secretary of Transportation to issue regulations
implementing part B of title II, except for section 223. See 42
U.S.C. 12149, 12164.
\6\ Memorandum for Federal Agency Civil Rights Directors and
General Counsels from the Office of the Assistant Attorney General,
Civil Rights Division, Department of Justice, https://www.justice.gov/crt/file/1466601/download [https://perma.cc/YN3G-J7F9].
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C. Overview of Key Provisions of This Proposed Regulation
In this NPRM, the Department proposes to add a new subpart H to the
title II ADA regulation, 28 CFR part 35, that will set forth technical
requirements for ensuring that web content that State and local
government entities make available to members of the public or use to
offer services, programs, and activities to members of the public is
readily accessible to and usable by individuals with disabilities. Web
content is information or sensory experience that is communicated to
the user by a web browser or other software. This includes text,
images, sounds, videos, controls, animations, navigation menus, and
documents. Examples of sensory experiences include content like visual
works of art or musical performances.\7\ Proposed subpart H also sets
forth technical requirements for ensuring the accessibility of mobile
apps that a public entity makes available to members of the public or
uses to offer services, programs, or activities to members of the
public.
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\7\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/#dfn-specific-sensory-experience [https://perma.cc/5554-T2R2].
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The Department proposes to adopt an internationally recognized
accessibility standard for web access, the Web Content Accessibility
Guidelines (``WCAG'') 2.1 \8\ published in June 2018, https://www.w3.org/TR/WCAG21/ [https://perma.cc/H2GG-WJVK], as the technical
standard for web content and mobile app accessibility under title II of
the ADA. As will be explained in more detail, the Department is
proposing to require that public entities comply with the WCAG 2.1
Level AA success criteria and conformance requirements. The applicable
technical standard will be referred to hereinafter as ``WCAG 2.1.'' The
applicable conformance level will be referred to hereinafter as ``Level
AA.'' To the extent there are differences between WCAG 2.1 Level AA and
the standards articulated in this rule, the standards articulated in
this rule prevail. As noted below, WCAG 2.1 Level AA is not restated in
full in this rule but is instead incorporated by reference.
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\8\ Copyright (copyright) 2017 2018 W3C[supreg] (MIT, ERCIM,
Keio, Beihang). This document includes material copied from or
derived from https://www.w3.org/TR/WCAG21/ [https://perma.cc/H2GG-WJVK].
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In recognition of the challenges that small public entities may
face with respect to resources for implementing the proposed new
requirements, the Department is proposing to stagger the compliance
dates for public entities according to their total population. Total
population refers to the size of the public entity's population
according to the U.S. Census Bureau or, if the public entity does not
have a specific population but belongs to another jurisdiction that
does, the population of the jurisdiction to which the entity belongs.
This NPRM proposes that a public entity with a total population of
50,000 or more must ensure that web content and mobile apps it makes
available to members of the public or uses to offer services, programs,
or activities to members of the public, comply with WCAG 2.1 Level AA
success criteria and conformance requirements two years after the
publication of the final rule. A public entity with a total population
of less than 50,000 would have three years to comply with these
requirements. In addition, all special district governments would have
three years to comply with these requirements.
[[Page 51950]]
Table 1--Compliance Dates for WCAG 2.1 Level AA
------------------------------------------------------------------------
Public entity size Compliance date
------------------------------------------------------------------------
Fewer than 50,000 persons/Special Three years after publication
district governments. of the final rule.
50,000 or more persons................. Two years after publication of
the final rule.
------------------------------------------------------------------------
In addition, the Department is proposing to create an exception
from the web accessibility requirements for certain categories of web
content, which are described in detail in the section-by-section
analysis.
If web content is excepted, that means that the public entity does
not need to make the content conform to WCAG 2.1 Level AA, unless there
is an applicable limitation to the exception. The proposed limitations
describe situations in which the otherwise excepted content must
conform to WCAG 2.1 Level AA.
As will be explained more fully, the Department is proposing seven
exceptions with some limitations: (1) archived web content; (2)
preexisting conventional electronic documents; (3) web content posted
by third parties on a public entity's website; (4) third-party web
content linked from a public entity's website; (5) course content on a
public entity's password-protected or otherwise secured website for
admitted students enrolled in a specific course offered by a public
postsecondary institution; (6) class or course content on a public
entity's password-protected or otherwise secured website for students
enrolled, or parents of students enrolled, in a specific class or
course at a public elementary or secondary school; and (7) conventional
electronic documents that are about a specific individual, their
property, or their account and that are password-protected or otherwise
secured. The proposed exception for preexisting conventional electronic
documents would also apply to conventional electronic documents
available through mobile apps. As discussed further, if one of these
exceptions applies without a limitation, then the public entity's
excepted web content or mobile app would not need to comply with the
proposed rule's accessibility requirements. However, each exception is
limited in some way. If a limitation applies to an exception, then the
public entity would need to ensure that its web content or mobile app
complies with the proposed rule's accessibility requirements. The
Department is proposing these exceptions--with certain limitations
explained in detail later in this NPRM--because it believes that
requiring public entities to make the particular content described in
these categories accessible under all circumstances could be too
burdensome at this time. In addition, requiring accessibility in all
circumstances may divert important resources from providing access to
key web content and mobile apps that public entities make available or
use to offer services, programs, and activities. However, upon request
from a specific individual, a public entity may have to provide web
content or content in mobile apps to that individual in an accessible
format to comply with the entity's existing obligations under other
regulatory provisions implementing title II of the ADA, even if an
exception applies without a limitation. For example, archived town
meeting minutes from 2011 might be excepted from the requirement to
comply with WCAG 2.1 Level AA. But, if a person with low vision, for
example, requests an accessible version, then the town would still need
to consider the person's request under its existing effective
communication obligations in 28 CFR 35.160. The way that the town does
this could vary based on the facts. For example, in some circumstances,
providing a large print version of the minutes might satisfy the town's
obligations, and in other circumstances it might need to provide an
electronic version that partially complies with WCAG.
The NPRM also proposes to make clear the limited circumstances in
which ``conforming alternate versions'' of web pages, as defined in
WCAG 2.1, can be used as a means of achieving accessibility. A
conforming alternate version is a separate web page that is accessible,
up to date, contains the same information and functionality as the
inaccessible web page, and can be reached via a conforming page or an
accessibility-supported mechanism. The Department understands that, in
practice, it can be difficult to maintain conforming alternate versions
because it is often challenging to keep two different versions of web
content up to date. For this reason and others discussed later,
conforming alternate versions are permissible only when it is not
possible to make websites and web content directly accessible due to
technical or legal limitations. Also, the NPRM would allow a public
entity flexibility to show that its use of other designs, methods, or
techniques as alternatives to WCAG 2.1 Level AA provides substantially
equivalent or greater accessibility and usability. Additionally, the
NPRM proposes that compliance with WCAG 2.1 Level AA is not required
under the ADA to the extent that such compliance imposes undue
financial and administrative burdens or results in a fundamental
alteration of the services, programs, or activities of the public
entity. More information about these proposals is provided in the
section-by-section analysis.
D. Summary of Costs and Benefits
To estimate the potential costs and benefits associated with this
proposed rule, the Department conducted a Preliminary Regulatory Impact
Analysis (``PRIA''). The purpose of the PRIA is to inform the public
about how the proposed rule creates costs and benefits to society,
taking into account both quantitative and qualitative costs and
benefits. A more detailed summary of the PRIA is included in section VI
of this preamble. The results of the Department's economic analysis
indicate that monetized benefits of this rulemaking far exceed the
costs. Further, the proposed rule will benefit individuals with
disabilities uniquely and in their day-to-day lives in many ways that
could not be quantified due to unavailable data. Table 2 below shows a
high-level overview of the Department's monetized findings. Non-
monetized costs and benefits are discussed in the text.
The Department calculated a variety of estimated costs, including:
(1) one-time costs for familiarization with the requirements of the
rule; (2) initial testing and remediation costs for government
websites; (3) operating and maintenance (``O&M'') costs for government
websites; (4) initial testing and remediation costs for mobile apps;
(5) O&M costs for mobile apps; (6) school course remediation costs; and
(7) initial testing and remediation costs for third-party websites that
provide services on behalf of State and local governments. School
course content, despite primarily being hosted on websites, is
estimated as a separate remediation cost due to its unique structure
and content, and because it is primarily on password-protected pages
[[Page 51951]]
and therefore unobservable to the Department. The remediation costs
include both time and software components. Annualized costs are
calculated over a 10-year period that includes both the three-year
implementation period and the seven years post-implementation.
Annualized costs over this 10-year period are estimated at $2.8 billion
assuming a 3 percent discount rate or $2.9 billion assuming a 7 percent
discount rate. This includes $15.8 billion in implementation costs
accruing during the first three years (the implementation period),
undiscounted, and $1.8 billion in annual O&M costs during the next
seven years. All values are presented in 2021 dollars as 2022 data were
not yet available.
To consider the relative magnitude of the estimated costs of this
proposed regulation, the Department compares the costs to revenues for
public entities. Because the costs for each government entity type are
estimated to be well below 1 percent of revenues, the Department does
not believe the rule will be unduly burdensome or costly for public
entities.\9\
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\9\ As a point of reference, the United States Small Business
Administration advises agencies that a potential indicator that the
impact of a proposed regulation may be ``significant'' is whether
the costs exceed 1 percent of the gross revenues of the entities in
a particular sector, although the threshold may vary based on the
particular types of entities at issue. The Department estimates that
the costs of this rulemaking for each government entity type are far
less than 1 percent of revenues. See Small Bus. Admin., A Guide for
Government Agencies: How to Comply with the Regulatory Flexibility
Act 19 (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH]; see also EPA, EPA's Action Development Process: Final
Guidance for EPA Rulewriters: Regulatory Flexibility Act 24 (Nov.
2006), https://www.epa.gov/sites/default/files/2015-06/documents/guidance-regflexact.pdf [https://perma.cc/9XFZ-3EVA] (providing an
illustrative example of a hypothetical analysis under the RFA in
which, for certain small entities, economic impact of ``[l]ess than
1% for all affected small entities'' may be ``presumed'' to have
``no significant economic impact on a substantial number of small
entities'').
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Benefits of this rulemaking will accrue particularly to individuals
with certain types of disabilities. For purposes of the PRIA, the
Department has determined that WCAG 2.1 Level AA primarily benefits
individuals with vision, hearing, cognitive, and manual dexterity
disabilities because the WCAG 2.1 standards are intended to address
barriers that often impede access for people with these disability
types.\10\ The Department quantified benefits to individuals with these
four types of disabilities. Individuals with other types of
disabilities may also benefit but, due to data limitations and
uncertainties, benefits to these individuals are not directly
quantified. Additionally, because accessibly designed web content and
mobile apps are easier for everyone to use, benefits will also accrue
to people without relevant disabilities \11\ who access State and local
government entities' web content and mobile apps.
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\10\ See W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK]; W3C[supreg], Web Content Accessibility
Guidelines 2.1 (June 5, 2018), https://www.w3.org/TR/WCAG21/
[https://perma.cc/29PG-YX3N].
\11\ Throughout this proposed rule, the Department uses the
phrase ``individuals without relevant disabilities'' to refer to
individuals without vision, hearing, cognitive, or manual dexterity
disabilities. Individuals without these disabilities may have other
types of disabilities, or they may be individuals without
disabilities, but to simplify the discussion in this proposed rule,
``individuals without relevant disabilities'' will be used to mean
individuals without one of these four types of disabilities.
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The Department monetized benefits for people with vision, hearing,
cognitive, and manual dexterity disabilities as well as people without
these disabilities. These benefits included time savings for current
users of State and local government entities' web content; time savings
for those who switch from other modes of accessing State and local
government entities' services, programs, or activities (e.g., phone or
in person) to web access or begin to participate in these services,
programs, or activities for the first time; time savings for current
mobile app users; time savings for students and their parents; and
earnings from additional educational attainment. Annual benefits,
beginning once the rule is fully implemented, total $11.4 billion.
Benefits annualized over a 10-year period that includes both three
years of implementation and seven years post-implementation total $9.3
billion per year, assuming a 3 percent discount rate, and $8.9 billion
per year, assuming a 7 percent discount rate.
There are many additional benefits that have not been monetized due
to a lack of data availability. Benefits that cannot be monetized are
discussed qualitatively in the PRIA. These qualitative benefits are
central to this proposed rule's potential impact. They include concepts
at the core of any civil rights law, such as equality and dignity.
Other benefits to individuals include increased independence, increased
flexibility, increased privacy, reduced frustration, decreased reliance
on companions, and increased program participation. This proposed rule
will also benefit governments through increased certainty about what
constitutes accessible web content, potential reduction in litigation,
and a larger labor market pool.
Comparing annualized costs and benefits, the monetized benefits to
society of this rulemaking far outweigh the costs. Net annualized
benefits over the first 10 years after publication of this proposed
rule total $6.5 billion per year using a 3 percent discount rate and
$6.0 billion per year using a 7 percent discount rate (Table 2).
Additionally, beyond this 10-year period, benefits are likely to
continue to accrue at a greater rate than costs because many of the
costs are upfront costs and benefits tend to have a delay before
beginning to accrue. Moreover, the Department expects the net
annualized benefit estimate is an underestimate, as it does not include
the significant qualitative benefits that the Department was unable to
monetize. For a complete comparison of costs and benefits, please see
Section 1.2, Summary of Benefits and Costs, in the corresponding PRIA.
Table 2--10-Year Average Annualized Comparison of Costs and Benefits
------------------------------------------------------------------------
3% Discount 7% Discount
Benefit type rate rate
------------------------------------------------------------------------
Average annualized costs (millions)..... $2,846.6 $2,947.9
Average annualized benefits (millions).. 9,316.3 8,937.2
Net benefits (millions)................. 6,469.7 5,989.3
Cost-to-benefit ratio................... 0.3 0.3
------------------------------------------------------------------------
[[Page 51952]]
II. Relationship to Other Laws
Title II of the ADA and the Department of Justice's implementing
regulation state that except as otherwise provided, the ADA shall not
be construed to apply a lesser standard than title V of the
Rehabilitation Act of 1973 (29 U.S.C. 791) or its accompanying
regulations.\12\ They further state that the ADA does not invalidate or
limit the remedies, rights, and procedures of any other laws that
provide greater or equal protection for people with disabilities or
people associated with them.\13\
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\12\ 42 U.S.C. 12201(a); 28 CFR 35.103(a).
\13\ 42 U.S.C. 12201(b); 28 CFR 35.103(b).
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The Department recognizes that entities subject to title II of the
ADA may also be subject to other statutes that prohibit discrimination
on the basis of disability. Compliance with the Department's title II
regulation does not necessarily ensure compliance with other statutes
and their implementing regulations. Title II entities are also
obligated to fulfill the ADA's title I requirements in their capacity
as employers, and those requirements are distinct from the obligations
under this rule.
Education is another context in which entities have obligations to
comply with other laws imposing affirmative obligations regarding
individuals with disabilities. The Department of Education's
regulations implementing the Individuals with Disabilities Education
Act (``IDEA'') and section 504 of the Rehabilitation Act provide
longstanding, affirmative obligations on covered schools to identify
children with disabilities, and both require covered schools to provide
a Free Appropriate Public Education (``FAPE'').\14\ This rulemaking
would build on, and would not supplant, those preexisting requirements.
A public entity must continue to meet all of its existing obligations
under other laws. A discussion of how this rule adds to the existing
educational legal environment is included under the preamble discussion
of the relevant educational exception.
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\14\ See 20 U.S.C. 1412; 34 CFR 104.32-104.33.
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III. Background
A. ADA Statutory and Regulatory History
The ADA broadly protects the rights of individuals with
disabilities in important areas of everyday life, such as in
employment, access to State and local government entities' services,
places of public accommodation, and transportation. The ADA also
requires newly designed and constructed or altered State and local
government entities' facilities, public accommodations, and commercial
facilities to be readily accessible to and usable by individuals with
disabilities.\15\ Section 204(a) of title II and section 306(b) of
title III direct the Attorney General to promulgate regulations to
carry out the provisions of titles II and III, other than certain
provisions dealing specifically with transportation.\16\ Title II, part
A, applies to State and local government entities and protects
qualified individuals with disabilities from discrimination on the
basis of disability in services, programs, and activities provided by
State and local government entities.
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\15\ 42 U.S.C. 12101 et seq.
\16\ 42 U.S.C. 12134, 12186(b).
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On July 26, 1991, the Department issued its final rules
implementing title II and title III, which are codified at 28 CFR part
35 (title II) and part 36 (title III), and include the ADA Standards
for Accessible Design (``ADA Standards'').\17\ At that time, the web
was in its infancy and was thus not used by State and local government
entities as a means of providing services or information to the public.
Thus, web content was not mentioned in the Department's title II
regulation. Only a few years later, however, as web content of general
interest became available, public entities began using web content to
provide information to the public.
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\17\ Title III prohibits discrimination on the basis of
disability in the full and equal enjoyment of places of public
accommodation (privately operated entities whose operations affect
commerce and fall within at least one of 12 categories listed in the
ADA, such as restaurants, movie theaters, schools, day care
facilities, recreational facilities, and doctors' offices) and
requires newly constructed or altered places of public
accommodation--as well as commercial facilities (facilities intended
for nonresidential use by a private entity and whose operations
affect commerce, such as factories, warehouses, or office
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-89.
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B. History of the Department's Title II Web-Related Interpretation and
Guidance
The Department first articulated its interpretation that the ADA
applies to websites of covered entities in 1996.\18\ Under title II,
this includes ensuring that individuals with disabilities are not, by
reason of such disability, excluded from participation in or denied the
benefits of the services, programs, and activities offered by State and
local government entities, including those offered via the web, such as
education services, voting, town meetings, vaccine registration, tax
filing systems, and applications for benefits.\19\ The Department has
since reiterated this interpretation in a variety of online
contexts.\20\ Title II of the ADA also applies when public entities use
mobile apps to offer their services, programs, and activities.
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\18\ See Letter for Tom Harkin, U.S. Senator, from Deval L.
Patrick, Assistant Attorney General, Civil Rights Division,
Department of Justice (Sept. 9, 1996), https://www.justice.gov/crt/foia/file/666366/download [https://perma.cc/56ZB-WTHA].
\19\ See 42 U.S.C. 12132.
\20\ See U.S. Dep't of Just., Guidance on Web Accessibility and
the ADA, ADA.gov (Mar. 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/WH9E-VTCY]; Settlement Agreement Between
the United States of America and the Champaign-Urbana Mass Transit
District (Dec. 14, 2021), https://www.ada.gov/champaign-urbana_sa.pdf [https://perma.cc/VZU2-E6FZ]; Consent Decree, United
States v. The Regents of the Univ. of Cal. (Nov. 20, 2022), https://www.justice.gov/opa/press-release/file/1553291/download [https://perma.cc/9AMQ-GPP3]; Consent Decree, Dudley v. Miami Univ. (Oct. 17,
2016), https://www.ada.gov/miami_university_cd.html [https://perma.cc/T3FX-G7RZ]; Settlement Agreement Between the United States
of America and the City and County of Denver, Colorado Under the
Americans with Disabilities Act (Jan. 8, 2018), https://www.ada.gov/denver_pca/denver_sa.html [https://perma.cc/U7VE-MBSG]; Settlement
Agreement Between the United States of America and Nueces County,
Texas Under the Americans with Disabilities Act (effective Jan. 30,
2015), https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html
[https://perma.cc/TX66-WQY7]; Settlement Agreement Between the
United States of America, Louisiana Tech University, and the Board
of Supervisors for the University of Louisiana System Under the
Americans with Disabilities Act (July 22, 2013), https://www.ada.gov/louisiana-tech.htm [https://perma.cc/78ES-4FQR].
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Many public entities now regularly offer many of their services,
programs, and activities through web content and mobile apps, and the
Department describes in detail the ways in which public entities have
been doing so later in this section. To ensure equal access to such
services, programs, and activities, the Department is undertaking this
rulemaking to provide public entities with more specific information
about how to meet their nondiscrimination obligations in the web and
mobile app contexts.
As with many other statutes, the ADA's requirements are broad and
its implementing regulations do not include specific standards for
every obligation under the statute. This has been the case in the
context of web accessibility under the ADA. Because the Department has
not adopted specific technical requirements for web content through
rulemaking, public entities have not had specific direction on how to
comply with the ADA's general requirements of nondiscrimination and
effective communication. However, public entities still must comply
with these ADA obligations with respect to their web content and mobile
apps, including before this rule's effective date.
[[Page 51953]]
The Department has consistently heard from members of the public--
especially public entities and people with disabilities--that there is
a need for additional information on how to specifically comply with
the ADA in this context. In June 2003, the Department published a
document titled ``Accessibility of State and Local Government websites
to People with Disabilities'' (https://www.ada.gov/websites2.htm
[https://perma.cc/Z7JT-USAN]), which provides tips for State and local
government entities on ways they can make their websites accessible so
that they can better ensure that people with disabilities have equal
access to the services, programs, and activities that are provided
through those websites.
In March 2022, the Department released additional guidance
addressing web accessibility for people with disabilities.\21\ This
technical assistance expanded on the Department's previous ADA guidance
by providing practical tips and resources for making websites
accessible for both title II and title III entities. It also reiterated
the Department's longstanding interpretation that the ADA applies to
all services, programs, and activities of covered entities, including
when they are offered via the web.
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\21\ U.S. Dep't of Just., Guidance on Web Accessibility and the
ADA, ADA.gov (Mar. 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/874V-JK5Z].
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The Department's 2003 guidance on State and local government
entities' websites noted that ``an agency with an inaccessible website
may also meet its legal obligations by providing an alternative
accessible way for citizens to use the programs or services, such as a
staffed telephone information line,'' while also acknowledging that
this is unlikely to provide an equal degree of access.\22\ The
Department's March 2022 guidance did not include 24/7 staffed telephone
lines as an alternative to accessible websites. Given the way the
modern web has developed, the Department no longer believes 24/7
staffed telephone lines can realistically provide equal access to
people with disabilities. Websites--and often mobile apps--allow the
public to get information or request a service within just a few
minutes. Getting the same information or requesting the same service
using a staffed telephone line takes more steps and may result in wait
times or difficulty getting the information. For example, State and
local government entities' websites may allow members of the public to
quickly review large quantities of information, like information about
how to register for government services, information on pending
government ordinances, or instructions about how to apply for a
government benefit. Members of the public can then use government
websites to promptly act on that information by, for example,
registering for programs or activities, submitting comments on pending
government ordinances, or filling out an application for a government
benefit. A member of the public could not realistically accomplish
these tasks efficiently over the phone. Additionally, a person with a
disability who cannot use an inaccessible online tax form might have to
call to request assistance with filling out either online or mailed
forms, which could involve significant delay, added costs, and may
require providing private information such as banking details or Social
Security numbers over the phone without the benefit of certain security
features available for online transactions. Finally, calling a staffed
telephone line lacks the privacy of looking up information on a
website. A caller needing public safety resources, for example, might
be unable to access a private location to ask for help on the phone,
whereas an accessible website would allow users to privately locate
resources. For these reasons, the Department does not now believe that
a staffed telephone line--even if it is offered 24/7--provides equal
access in the way that an accessible website can.
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\22\ U.S. Dep't of Just., Accessibility of State and Local
Government websites to People with Disabilities, ADA.gov (June
2003), https://www.ada.gov/websites2.htm [https://perma.cc/Z7JT-USAN].
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C. The Department's Previous Web Accessibility-Related Rulemaking
Efforts
The Department has previously pursued rulemaking efforts regarding
website accessibility under title II. On July 26, 2010, the
Department's advance notice of proposed rulemaking (``ANPRM'') titled
``Accessibility of Web Information and Services of State and Local
Government Entities and Public Accommodations'' was published in the
Federal Register.\23\ The ANPRM announced that the Department was
considering revising the regulations implementing titles II and III of
the ADA to establish specific requirements for State and local
government entities and public accommodations to make their websites
accessible to individuals with disabilities. In the ANPRM, the
Department sought information regarding what standards, if any, it
should adopt for web accessibility; whether the Department should adopt
coverage limitations for certain entities, like small businesses; and
what resources and services are available to make existing websites
accessible to individuals with disabilities. The Department also
requested comments on the costs of making websites accessible; whether
there are effective and reasonable alternatives to make websites
accessible that the Department should consider permitting; and when any
web accessibility requirements adopted by the Department should become
effective. The Department received approximately 400 public comments
addressing issues germane to both titles II and III in response to this
ANPRM. The Department later announced that it decided to pursue
separate rulemakings addressing website accessibility under titles II
and III.\24\
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\23\ 75 FR 43460 (July 26, 2010).
\24\ See Department of Justice--Fall 2015 Statement of
Regulatory Priorities, https://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html [https://perma.cc/YF2L-FTSK].
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On May 9, 2016, the Department followed up on its 2010 ANPRM with a
detailed Supplemental ANPRM that was published in the Federal Register.
The Supplemental ANPRM solicited public comment about a variety of
issues regarding establishing technical standards for web access under
title II.\25\ The Department received more than 200 public comments in
response to the title II Supplemental ANPRM.
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\25\ Nondiscrimination on the Basis of Disability; Accessibility
of Web Information and Services of State and Local Government
Entities, 81 FR 28658 (May 9, 2016).
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On December 26, 2017, the Department published a Notice in the
Federal Register withdrawing four rulemaking actions, including the
titles II and III web rulemakings, stating that it was evaluating
whether promulgating specific web accessibility standards through
regulations was necessary and appropriate to ensure compliance with the
ADA.\26\ The Department has also previously stated that it would
continue to review its entire regulatory landscape and associated
agenda, pursuant to the regulatory reform provisions of Executive Order
13771 and Executive Order 13777.\27\ Those Executive Orders
[[Page 51954]]
were revoked by Executive Order 13992 in early 2021.
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\26\ Nondiscrimination on the Basis of Disability; Notice of
Withdrawal of Four Previously Announced Rulemaking Actions, 82 FR
60932 (Dec. 26, 2017).
\27\ See Letter for Charles E. Grassley, U.S. Senator, from
Stephen E. Boyd, Assistant Attorney General, Civil Rights Division,
Department of Justice (Oct. 11, 2018), https://www.grassley.senate.gov/imo/media/doc/2018-10-11%20DOJ%20to%20Grassley%20-%20ADA%20website%20Accessibility.pdf
[https://perma.cc/8JHS-FK2Q].
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The Department is now reengaging in efforts to promulgate
regulations establishing technical standards for web accessibility for
public entities. Accordingly, the Department has begun this distinct
rulemaking effort to address web access under title II of the ADA.
D. Need for Department Action
1. Use of Web Content by Title II Entities
Public entities regularly use the web to disseminate information
and offer programs and services to the public. Public entities use a
variety of websites to streamline their programs and services. Members
of the public routinely make online service requests--from requesting
streetlight repairs and bulk trash pickups to reporting broken parking
meters--and can often check the status of a service request online.
Public entities' websites also offer the opportunity for people to
renew their vehicle registrations, submit complaints, purchase event
permits, and pay traffic fines and property taxes, making some of these
otherwise time-consuming tasks relatively easy and expanding their
availability beyond regular business hours. Moreover, applications for
many Federal benefits, such as unemployment benefits and food stamps,
are available through State websites.
People also rely on public entities' websites to engage in civic
participation, particularly when more individuals prefer or need to
stay at home in light of changes to preferences and behavior resulting
from the COVID-19 pandemic. The Department believes that although many
public health measures addressing the COVID-19 pandemic are no longer
in place, there have been durable changes to State and local government
entities' operations and public preferences that necessitate greater
access to online services, programs, and activities.
People can now frequently watch local public hearings, read minutes
from community meetings, or take part in live chats with government
officials on the websites of State and local government entities. Many
public entities allow voters to begin the voter registration process
and obtain candidate information on their websites. Individuals
interested in running for local public offices can often find pertinent
information concerning candidate qualifications and filing requirements
on these websites as well. The websites of public entities also include
information about a range of issues of concern to the community and
about how people can get involved in community efforts to improve the
administration of government services.
Many public entities use online resources to promote access to
public benefits. People can use websites of public entities to file for
unemployment or other benefits and find and apply for job openings.
Access to these online functions became even more crucial during the
COVID-19 pandemic, when millions of Americans lost their jobs and
government services were often not available in person.\28\ As noted
previously, the Department believes that although many of these
services have become available in person again as COVID-19 public
health measures have ended, State and local government entities will
continue to offer these services online due to durable shifts in
preferences and expectations resulting from the pandemic. For example,
through the websites of State and local government entities, business
owners can register their businesses, apply for occupational and
professional licenses, bid on contracts to provide products and
services to public entities, and obtain information about laws and
regulations with which they must comply. The websites of many State and
local government entities also allow members of the public to research
and verify business licenses online and report unsavory business
practices. Access to these online services can be particularly
important for any services that have not resumed in-person
availability.
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\28\ See Rakesh Kochhar & Jesse Bennet, U.S. Labor Market Inches
Back from the Covid-19 Shock, but Recovery is Far from Complete, Pew
Research Center (Apr. 14, 2021), https://www.pewresearch.org/fact-tank/2021/04/14/u-s-labor-market-inches-back-from-the-covid-19-shock-but-recovery-is-far-from-complete/ [https://perma.cc/29E5-LMXM].
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Public entities are also using websites as an integral part of
public education. Public schools at all levels, including public
colleges and universities, offer programs, reading material, and
classroom instruction through websites. Access to these sites became
even more critical during the COVID-19 pandemic, when, at one point,
all U.S. public school buildings were closed.\29\ Web access is
essential, and, during part of the COVID-19 pandemic, it was often the
only way for State and local government entities to provide students
with educational services, programs, and activities like public school
classes and exams. As noted previously, the Department believes durable
changes to preferences and behavior due to the COVID-19 pandemic will
result in many educational activities continuing to be offered online.
Most public colleges and universities rely heavily on websites and
other online technologies in the application process for prospective
students; for housing eligibility and on-campus living assignments;
course registration, assignments, and discussion groups; and for a wide
variety of administrative and logistical functions in which students
and staff must participate. Similarly, in many public elementary and
secondary school settings, communications via the web are how teachers
and administrators communicate grades, assignments, and administrative
matters to parents and students.
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\29\ See The Coronavirus Spring: The Historic Closing of U.S.
Schools (A Timeline), Education Week (July 1, 2020), https://www.edweek.org/leadership/the-coronavirus-spring-the-historic-closing-of-u-s-schools-a-timeline/2020/07 [https://perma.cc/47E8-FJ3U].
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As noted previously, access to the web has become increasingly
important as a result of the COVID-19 pandemic, which shut down
workplaces, schools, and in-person services, and has forced millions of
Americans to stay home for extended periods.\30\ In response, the
American public has turned to the web for work, activities, and
learning.\31\ In fact, a study conducted in April 2021 found that 90
percent of adults say the web ``has been at least important to them
personally during the pandemic.'' \32\ Fifty-eight percent say it has
been essential.\33\ Web access can be particularly important for those
who live in rural communities and need to travel long distances to
reach certain physical locations like schools and libraries.\34\
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\30\ See Colleen McClain et al., The internet and the Pandemic,
Pew Research Center (Sep. 1, 2021), https://www.pewresearch.org/internet/2021/09/01/the-internet-and-the-pandemic/ [https://perma.cc/4WVA-FQ9P].
\31\ See Kerry Dobransky & Eszter Hargittai, Piercing the
Pandemic Social Bubble: Disability and Social Media Use About COVID-
19, American Behavioral Scientist (Mar. 29, 2021), https://doi.org/10.1177/00027642211003146. A Perma archive link was unavailable for
this citation.
\32\ McClain et al., The internet and the Pandemic, at 3.
\33\ Id.
\34\ John Lai & Nicole O. Widmar, Revisiting the Digital Divide
in the COVID-19 Era, 43 Applied Econ. Perspectives and Pol'y 458
(2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7675734/
[https://perma.cc/Y75D-XWCT].
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Currently, a large number of Americans interact with public
entities remotely and many State and local government entities provide
vital information and services for the general public online, including
information on recreational and educational programs, school closings,
State travel restrictions,
[[Page 51955]]
food assistance and employment, guidance for health care providers, and
workplace safety.\35\ Access to such web-based information and
services, while important for everyone during the pandemic, took on
heightened importance for people with disabilities, many of whom face a
greater risk of COVID-19 exposure, serious illness, and death.\36\
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\35\ See, e.g., Coronavirus Disease 2019 (COVID-19) Outbreak,
Maryland.gov, https://coronavirus.maryland.gov/ [https://perma.cc/NAW4-6KP4]; Covid19.CA, California.gov, https://covid19.ca.gov/
[https://perma.cc/BL9C-WTJP]; Washington State Coronavirus Response,
Washington State, https://coronavirus.wa.gov/ [https://perma.cc/KLA4-KY53].
\36\ See Hannah Eichner, The Time is Now to Vaccinate High-Risk
People with Disabilities, National Health Law Program (Mar. 15,
2021), https://healthlaw.org/the-time-is-now-to-vaccinate-high-risk-people-with-disabilities/ [https://perma.cc/8CM8-9UC4].
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According to the CDC, some people with disabilities ``might be more
likely to get infected or have severe illness because of underlying
medical conditions, congregate living settings, or systemic health and
social inequities. All people with serious underlying chronic medical
conditions like chronic lung disease, a serious heart condition, or a
weakened immune system seem to be more likely to get severely ill from
COVID-19.'' \37\ A report by the National Council on Disability
indicated that COVID-19 has a disproportionately negative impact on
people with disabilities' access to healthcare, education, and
employment, among other areas, making remote access to these
opportunities via the web even more important.\38\
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\37\ See People with Disabilities, Centers for Disease Control
and Prevention, https://www.cdc.gov/ncbddd/humandevelopment/covid-19/people-with-disabilities.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fneed-extra-precautions%2Fpeople-with-disabilities.html [https://perma.cc/WZ7U-2EQE].
\38\ See 2021 Progress Report: The Impact of COVID-19 on People
with Disabilities, National Council on Disability (Oct. 29, 2021),
https://ncd.gov/progressreport/2021/2021-progress-report [https://perma.cc/96L7-XMKZ].
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Individuals with disabilities can often be denied equal access to
many services, programs, and activities because many public entities'
web content is not fully accessible. Thus, there is a digital divide
between the ability of people with certain types of disabilities and
people without those disabilities to access the services, programs, and
activities of their State and local government entities.
2. Use of Mobile Applications by Title II Entities
The Department is also proposing that public entities make their
mobile apps accessible under proposed Sec. 35.200 because public
entities also use mobile apps to offer their services, programs, and
activities to the public. As discussed, a mobile app is a software
application that runs on mobile devices. Mobile apps are distinct from
a website that can be accessed by a mobile device because, in part,
mobile apps are not directly accessible on the web--they are often
downloaded on a mobile device.\39\ A mobile website, on the other hand,
is a website that is designed so that it can be accessed by a mobile
device similarly to how it can be accessed on a desktop computer.\40\
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\39\ Mona Bushnell, What Is the Difference Between an App and a
Mobile website?, Business News Daily (updated Aug. 2, 2022), https://www.businessnewsdaily.com/6783-mobile-website-vs-mobile-app.html
[https://perma.cc/9LKC-GUEM].
\40\ Id.
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Public entities use mobile apps to provide services and reach the
public in various ways. For example, during the COVID-19 pandemic, when
many State and local government entities' offices were closed, public
entities used mobile apps to inform people about benefits and
resources, to provide updates about the pandemic, and as a means to
show proof of vaccination status, among other things.\41\ Also, using a
public entity's mobile app, residents are able to submit nonemergency
service requests, such as cleaning graffiti or repairing a street light
outage, and track the status of these requests. Public entities' apps
take advantage of common features of mobile devices, such as camera and
Global Positioning System (``GPS'') functions, so individuals can
provide public entities with a precise description and location of
issues.\42\ These may include issues such as potholes, physical
barriers created by illegal dumping or parking, or curb ramps that need
to be fixed to ensure accessibility for some people with
disabilities.\43\ Some public transit authorities have transit apps
that use a mobile device's GPS function to provide bus riders with the
location of nearby bus stops and real-time arrival and departure
times.\44\ In addition, public entities are also using mobile apps to
assist with emergency planning for natural disasters like wildfires;
provide information about local schools; and promote tourism, civic
culture, and community initiatives.\45\
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\41\ See, e.g., COVID-19 Virginia Resources, Virginia Department
of Social Services, https://apps.apple.com/us/app/covid-19-virginia-resources/id1507112717 [https://perma.cc/LP6N-WC9K]; Chandra Steele,
Does My State Have a COVID-19 Vaccine App, PC Mag (updated Feb. 10,
2022), https://www.pcmag.com/how-to/does-my-state-have-a-covid-19-vaccine-app [https://perma.cc/H338-MCWC].
\42\ See Using Mobile Apps in Government, IBM Ctr. for the Bus.
of Gov't, at 11 (2015), https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf [https://perma.cc/248X-8A6C].
\43\ Id. at 32.
\44\ Id. at 31.
\45\ Id. at 8.
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3. Barriers to Web and Mobile App Accessibility
Millions of individuals in the United States have disabilities that
can affect their use of the web and mobile apps. Many of these
individuals use assistive technology to enable them to navigate
websites or access information contained on those sites. For example,
individuals who are unable to use their hands may use speech
recognition software to navigate a website, while individuals who are
blind may rely on a screen reader to convert the visual information on
a website into speech. Many websites and mobile apps fail to
incorporate or activate features that enable users with certain types
of disabilities to access all of the information or elements on the
website or app. For instance, individuals who are deaf may be unable to
access information in web videos and other multimedia presentations
that do not have captions. Individuals with low vision may be unable to
read websites or mobile apps that do not allow text to be resized or do
not provide enough contrast. Individuals with limited manual dexterity
or vision disabilities who use assistive technology that enables them
to interact with websites may be unable to access sites that do not
support keyboard alternatives for mouse commands. These same
individuals, along with individuals with cognitive and vision
disabilities, often encounter difficulty using portions of websites
that require timed responses from users but do not give users the
opportunity to indicate that they need more time to respond.
Individuals who are blind or have low vision often confront
significant barriers to accessing websites and mobile apps. For
example, a study from the University of Washington analyzed
approximately 10,000 mobile apps and found that many are highly
inaccessible to people with disabilities.\46\ The study found that 23
percent of the mobile apps reviewed did not provide content description
of images for most of their image-based buttons. As a result, the
functionality of those buttons is not accessible for people who use
screen
[[Page 51956]]
readers.\47\ Additionally, other mobile apps may be inaccessible if
they do not allow text resizing, which can provide larger text for
persons with vision disabilities.\48\
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\46\ See Large-Scale Analysis Finds Many Mobile Apps Are
Inaccessible, University of Washington CREATE, https://create.uw.edu/initiatives/large-scale-analysis-finds-many-mobile-apps-are-inaccessible/ [https://perma.cc/442K-SBCG].
\47\ Id.
\48\ See Chase DiBenedetto, 4 ways mobile apps could be a lot
more accessible, Mashable (Dec. 9, 2021), https://mashable.com/article/mobile-apps-accessibility-fixes [https://perma.cc/WC6M-2EUL].
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Furthermore, many websites provide information visually, without
features that allow screen readers or other assistive technology to
retrieve information on the website so it can be presented in an
accessible manner. A common barrier to website accessibility is an
image or photograph without corresponding text describing the image. A
screen reader or similar assistive technology cannot ``read'' an image,
leaving individuals who are blind with no way of independently knowing
what information the image conveys (e.g., a simple icon or a detailed
graph). Similarly, if websites lack navigational headings or links that
facilitate navigation using a screen reader, it will be difficult or
impossible for a someone using a screen reader to understand.\49\
Additionally, these websites may fail to present tables in a way that
allows the information in the table to be interpreted by someone who is
using a screen reader.\50\ Web-based forms, which are an essential part
of accessing government services, are often inaccessible to individuals
with disabilities who use screen readers. For example, field elements
on forms, which are the empty boxes on forms that hold specific pieces
of information, such as a last name or telephone number, may lack clear
labels that can be read by assistive technology. Inaccessible form
fields make it difficult for persons using screen readers to fill out
online forms, pay fees and fines, submit donations, or otherwise
participate in government services, programs, or activities using a
website. Some governmental entities use inaccessible third-party
websites to accept online payments, while others request public input
through their own inaccessible websites. These barriers greatly impede
the ability of individuals with disabilities to access the services,
programs, and activities offered by public entities on the web. In many
instances, removing certain website barriers is neither difficult nor
especially costly. For example, the addition of invisible attributes
known as alt text or alt tags to an image helps orient an individual
using a screen reader and allows them to gain access to the information
on the website. Alt text can be added to the coding of a website
without any specialized equipment.\51\ Similarly, adding headings,
which facilitate page navigation for those using screen readers, can
often be done easily as well.\52\
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\49\ See, e.g., W3C[supreg], Easy Checks--A First Review of Web
Accessibility, (updated Jan. 31, 2023), https://www.w3.org/WAI/test-evaluate/preliminary/ [https://perma.cc/N4DZ-3ZB8].
\50\ W3C[supreg], Tables Tutorial (updated Feb. 16, 2023),
https://www.w3.org/WAI/tutorials/tables/ [https://perma.cc/FMG2-33C4].
\51\ W3C[supreg], Images Tutorial (Feb. 08, 2022), https://www.w3.org/WAI/tutorials/images/ [https://perma.cc/G6TL-W7ZC].
\52\ W3C[supreg], Providing Descriptive Headings (June 20,
2023), https://www.w3.org/WAI/WCAG21/Techniques/general/G130.html
[https://perma.cc/XWM5-LL6S].
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4. Voluntary Compliance With Technical Standards for Web Accessibility
Has Been Insufficient in Providing Access
The web has changed significantly and its use has become far more
prevalent since Congress enacted the ADA in 1990 and the Department
subsequently promulgated its first ADA regulations. Neither the ADA nor
the Department's regulations specifically addressed public entities'
use of websites and mobile apps to provide their services, programs,
and activities. Congress contemplated, however, that the Department
would apply title II, part A of the statute in a manner that evolved
over time and it delegated authority to the Attorney General to
promulgate regulations to carry out the ADA mandate under title II,
part A.\53\ Consistent with this approach, the Department stated in the
preamble to the original 1991 ADA regulations that the regulations
should be interpreted to keep pace with developing technologies.\54\
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\53\ See H.R. Rep. No. 101-485, pt. 2, at 108 (1990); 42 U.S.C.
12134(a).
\54\ 28 CFR part 36, app. B.
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Since 1996, the Department has consistently taken the position that
the ADA applies to the web content of State and local government
entities. This interpretation comes from title II's application to
``all services, programs, and activities provided or made available by
public entities.'' \55\ The Department has affirmed the application of
the statute to websites in multiple technical assistance documents over
the past two decades.\56\ Further, the Department has repeatedly
enforced this obligation and worked with State and local government
entities to make their websites accessible, such as through Project
Civic Access, an initiative to promote local governments' compliance
with the ADA by eliminating physical and communication barriers
impeding full participation by people with disabilities in community
life.\57\
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\55\ See 28 CFR 35.102.
\56\ U.S. Dep't of Just., Accessibility of State and Local
Government websites to People with Disabilities (2003), https://www.ada.gov/websites2.htm [https://perma.cc/Z7JT-USAN]; U.S. Dep't
of Just., Chapter 5: website Accessibility Under Title II of the
ADA, ADA Best Practices Tool Kit for State and Local Governments,
Ada.gov (May 7, 2007), https://www.ada.gov/pcatoolkit/chap5toolkit.htm [https://perma.cc/VM3M-AHDJ]; U.S. Dep't of Just.,
Guidance on Web Accessibility and the ADA, Ada.gov (Mar. 18, 2022),
https://https://www.ada.gov/resources/web-guidance/ [https://perma.cc/874V-JK5Z].
\57\ U.S. Dep't of Just., Project Civic Access, Ada.gov, https://www.ada.gov/civicac.htm [https://perma.cc/B6WV-4HLQ].
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A variety of voluntary standards and structures have been developed
for the web through nonprofit organizations using multinational
collaborative efforts. For example, domain names are issued and
administered through the internet Corporation for Assigned Names and
Numbers (``ICANN''), the internet Society (``ISOC'') publishes computer
security policies and procedures for websites, and the World Wide Web
Consortium (``W3C[supreg]'') develops a variety of technical standards
and guidelines ranging from issues related to mobile devices and
privacy to internationalization of technology. In the area of
accessibility, the Web Accessibility Initiative (``WAI'') of the
W3C[supreg] created the Web Content Accessibility Guidelines
(``WCAG'').
Many organizations, however, have indicated that voluntary
compliance with these accessibility guidelines has not resulted in
equal access for people with disabilities; accordingly, they have urged
the Department to take regulatory action to ensure web and mobile app
accessibility.\58\ The National Council on Disability, an independent
Federal agency that advises the President, Congress, and other agencies
about programs, policies, practices, and procedures affecting people
with disabilities, has similarly emphasized the need for regulatory
action on this issue.\59\ The Department has also heard
[[Page 51957]]
from State and local government entities and businesses asking for
clarity on the ADA's requirements for websites through regulatory
efforts.\60\
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\58\ See, e.g., Letter for U.S. Dep't of Just. from American
Council of the Blind et al. (Feb. 28, 2022), https://acb.org/accessibility-standards-joint-letter-2-28-22 [https://perma.cc/R77M-VPH9] (citing research showing persistent barriers in digital
accessibility); Letter for U.S. Dep't of Just. from Consortium for
Citizens with Disabilities (Mar. 23, 2022), https://www.c-c-d.org/fichiers/CCD-Web-Accessibility-Letter-to-DOJ-03232022.pdf [https://perma.cc/Q7YB-UNKV].
\59\ National Council on Disability, The Need for Federal
Legislation and Regulation Prohibiting Telecommunications and
Information Services Discrimination (Dec. 19, 2006), https://www.ncd.gov/publications/2006/Dec282006 [https://perma.cc/7HW5-NF7P]
(discussing how competitive market forces have not proven sufficient
to provide individuals with disabilities access to
telecommunications and information services); see also, e.g.,
National Council on Disability, National Disability Policy: A
Progress Report (Oct. 7, 2016), https://ncd.gov/progressreport/2016/progress-report-october-2016 [https://perma.cc/J82G-6UU8] (urging
the Department to adopt a web accessibility regulation).
\60\ See, e.g., Letter for U.S. Dep't of Just. from Nat'l Ass'n
of Realtors (Dec. 13, 2017), https://www.narfocus.com/billdatabase/clientfiles/172/3/3058.pdf [https://perma.cc/Z93F-K88P].
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In light of the long regulatory history and the ADA's current
general requirement to make all services, programs, and activities
accessible, the Department expects that public entities have made
strides to make their web content accessible since the 2010 ANPRM was
published. However, despite the availability of voluntary web and
mobile app accessibility standards; the Department's clearly stated
position that all services, programs, and activities of public
entities, including those available on websites, must be accessible;
and case law supporting that position, individuals with disabilities
continue to struggle to obtain access to the websites of public
entities.\61\ As a result, the Department has brought enforcement
actions to address web access, resulting in a significant number of
settlement agreements with State and local government entities.\62\
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\61\ See, e.g., Meyer v. Walthall, 528 F. Supp. 3d 928, 959
(S.D. Ind. 2021) (``[T]he Court finds that Defendants' websites
constitute services or activities within the purview of Title II and
section 504, requiring Defendants to provide effective access to
qualified individuals with a disability.''); Price v. City of Ocala,
Fla., 375 F. Supp. 3d 1264, 1271 (M.D. Fla. 2019) (``Title II
undoubtedly applies to websites . . . .''); Payan v. Los Angeles
Cmty. Coll. Dist., No. 2:17-CV-01697-SVW-SK, 2019 WL 9047062, at *12
(C.D. Cal. Apr. 23, 2019) (``[T]he ability to sign up for classes on
the website and to view important enrollment information is itself a
`service' warranting protection under Title II and section 504.'');
Eason v. New York State Bd. of Elections, No. 16-CV-4292 (KBF), 2017
WL 6514837, at *1 (S.D.N.Y. Dec. 20, 2017) (stating, in a case
involving a State's website, that ``Section 504 of the
Rehabilitation Act and Title II of the Americans with Disabilities
Act . . . , long ago provided that the disabled are entitled to
meaningful access to a public entity's programs and services. Just
as buildings have architecture that can prevent meaningful access,
so too can software.''); Hindel v. Husted, No. 2:15-CV-3061, 2017 WL
432839, at *5 (S.D. Ohio Feb. 1, 2017) (``The Court finds that
Plaintiffs have sufficiently established that Secretary Husted's
website violates Title II of the ADA because it is not formatted in
a way that is accessible to all individuals, especially blind
individuals like the Individual Plaintiffs whose screen access
software cannot be used on the website.'').
\62\ See, e.g., Settlement Agreement Between the United States
of America and the Champaign-Urbana Mass Transit District (Dec. 14,
2021), https://www.ada.gov/champaign-urbana_sa.pdf [https://perma.cc/VZU2-E6FZ]; Consent Decree, United States v. The Regents of
the Univ. of Cal. (Nov. 20, 2022), https://www.justice.gov/opa/press-release/file/1553291/download [https://perma.cc/9AMQ-GPP3];
Consent Decree, Dudley v. Miami Univ. (Oct. 13, 2016), https://www.ada.gov/miami_university_cd.html [https://perma.cc/T3FX-G7RZ];
Settlement Agreement Between the United States of America and the
City and County of Denver, Colorado Under the Americans with
Disabilities Act (Jan. 8, 2018), https://www.ada.gov/denver_pca/denver_sa.html [https://perma.cc/U7VE-MBSG]; Settlement Agreement
Between the United States of America and Nueces County, Texas Under
the Americans with Disabilities Act (effective Jan. 30, 2015),
https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html [https://perma.cc/TX66-WQY7]; Settlement Agreement Between the United States
of America, Louisiana Tech University, and the Board of Supervisors
for the University of Louisiana System Under the Americans with
Disabilities Act (July 22, 2013), https://www.ada.gov/louisiana-tech.htm [https://perma.cc/78ES-4FQR].
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Moreover, other Federal agencies have also taken enforcement action
against public entities regarding the lack of access for people with
disabilities to websites. In December 2017, for example, the U.S.
Department of Education entered into a resolution agreement with the
Alaska Department of Education and Early Development after it found the
entity had violated Federal statutes, including title II of the ADA, by
denying people with disabilities an equal opportunity to participate in
Alaska Department of Education and Early Development's services,
programs, and activities, due to website inaccessibility.\63\
Similarly, the U.S. Department of Housing and Urban Development took
action against the City of Los Angeles, and its subrecipient housing
providers, to ensure that it maintained an accessible housing website
concerning housing opportunities.\64\
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\63\ In re Alaska Dep't of Educ. and Early Dev., OCR Reference
No. 10161093 (U.S. Dep't of Educ. Dec. 11, 2017) (resolution
agreement), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b.pdf [https://perma.cc/DUS4-HVZJ],
superseded by https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b1.pdf [https://perma.cc/BVL6-Y59M]
(U.S. Dep't of Educ. Mar. 28, 2018) (revised resolution agreement).
\64\ See Voluntary Compliance Agreement Between the U.S.
Department of Housing and Urban Development and the City of Los
Angeles, California (Aug. 2, 2019), https://www.hud.gov/sites/dfiles/Main/documents/HUD-City-of-Los-Angeles-VCA.pdf [https://perma.cc/X5RN-AJ5K].
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The Department believes that adopting technical standards for web
and mobile app accessibility will provide clarity to public entities
regarding how to make the services, programs, and activities they offer
the public via the web and mobile apps accessible. Adopting specific
technical standards for web and mobile app accessibility will also
provide individuals with disabilities with consistent and predictable
access to the web content and mobile apps of public entities.
IV. Section-by-Section Analysis
This section details the Department's proposed changes to the title
II regulation, including the reasoning behind the proposals, and poses
questions for public comment.
Subpart A--General
Sec. 35.104 Definitions
``Archived Web Content''
The Department proposes to add a definition for ``archived web
content'' to proposed Sec. 35.104. The proposed definition defines
``archived web content'' as ``web content that (1) is maintained
exclusively for reference, research, or recordkeeping; (2) is not
altered or updated after the date of archiving; and (3) is organized
and stored in a dedicated area or areas clearly identified as being
archived.'' The definition is meant to capture web content that, while
outdated or superfluous, is maintained unaltered in a dedicated area on
a public entity's website for historical, reference, or other similar
purposes, and the term is used in the proposed exceptions set forth in
Sec. 35.201. Throughout this rule, a public entity's ``website'' is
intended to include not only the websites hosted by the public entity,
but also websites operated on behalf of a public entity by a third
party. For example, public entities sometimes use vendors to create and
host their web content. Such content would also be covered by this
rule.
``Conventional Electronic Documents''
The Department proposes to add a definition for ``conventional
electronic documents'' to proposed Sec. 35.104. The proposal defines
``conventional electronic documents'' as ``web content or content in
mobile apps that is in the following electronic file formats: portable
document formats (`PDFs'), word processor file formats, presentation
file formats, spreadsheet file formats, and database file formats.''
The definition thus provides an exhaustive list of electronic file
formats that constitute conventional electronic documents. Examples of
conventional electronic documents include: Adobe PDF files (i.e.,
portable document formats), Microsoft Word files (i.e., word processor
files), Apple Keynote or Microsoft PowerPoint files (i.e., presentation
files), Microsoft Excel files (i.e., spreadsheet files), and FileMaker
Pro or Microsoft Access files (i.e., database files).
The term ``conventional electronic documents'' is intended to
describe those documents created or saved as an electronic file that
are commonly available on public entities' websites
[[Page 51958]]
and mobile apps in either an electronic form or as printed output. The
term is intended to capture documents where the version posted by the
public entity is not open for editing by the public. For example, if a
public entity maintains a Word version of a flyer on its website, that
would be a conventional electronic document. A third party could
technically download and edit that Word document, but their edits would
not impact the ``official'' posted version. Similarly, a Google Docs
file that does not allow others to edit or add comments in the posted
document would be a conventional electronic document. The term
``conventional electronic documents'' is used in proposed Sec.
35.201(b) to provide an exception for certain electronic documents
created by or for a public entity that are available on a public
entity's website before the compliance date of this rule and in
proposed Sec. 35.201(g) to provide an exception for certain
individualized, password-protected documents, and is addressed in more
detail in the discussion regarding proposed Sec. Sec. 35.201(b) and
(g).
``Mobile Applications (Apps)''
Mobile apps are software applications that are downloaded and
designed to run on mobile devices such as smartphones and tablets. For
the purposes of this part, mobile apps include, for example, native
apps built for a particular platform (e.g., Apple iOS, Google Android,
among others) or device and hybrid apps using web components inside
native apps.
``Special District Government''
The Department proposes to add a definition for a ``special
district government.'' The term ``special district government'' is used
in proposed Sec. 35.200(b) and is defined in proposed Sec. 35.104 to
mean ``a public entity--other than a county, municipality, or township,
or independent school district--authorized by State law to provide one
function or a limited number of designated functions with sufficient
administrative and fiscal autonomy to qualify as a separate government
and whose population is not calculated by the United States Census
Bureau in the most recent decennial Census or Small Area Income and
Poverty Estimates.'' Because special district governments do not have
populations calculated by the United States Census Bureau, their
population sizes are unknown. A special district government may
include, for example, a mosquito abatement district, utility district,
transit authority, water and sewer board, zoning district, or other
similar governmental entities that may operate with administrative and
fiscal independence.
``Total Population''
The Department proposes to add a definition for ``total
population.'' The term ``total population'' means ``the population
estimate for a public entity as calculated by the United States Census
Bureau in the most recent decennial Census or, if a public entity is an
independent school district, the population estimate as calculated by
the United States Census Bureau in the most recent Small Area Income
and Poverty Estimates.''
As mentioned previously, proposed Sec. 35.200 generally proposes
different compliance dates according to a public entity's size. The
term ``total population'' is generally used in proposed Sec. 35.200 to
refer to the size of a public entity's population as calculated by the
U.S. Census Bureau in the most recent decennial Census. If a public
entity does not have a specific population calculated by the U.S.
Census Bureau, but belongs to another jurisdiction that does, the
population of the entity is determined by the population of the
jurisdiction to which the entity belongs. For example, the total
population of a county library is the population of the county to which
the library belongs. However, because the decennial Census does not
include population estimates for public entities that are independent
school districts, the term ``total population'' with regard to
independent school districts refers to population estimates in the most
recent Small Area Income and Poverty Estimates, which includes
population estimates for these entities.
``WCAG 2.1''
The Department proposes to add a definition of ``WCAG 2.1.'' The
term ``WCAG 2.1'' refers to the 2018 version of the voluntary
guidelines for web accessibility, known as the Web Content
Accessibility Guidelines 2.1 (``WCAG''). The W3C[supreg], the principal
international organization involved in developing standards for the
web, published WCAG 2.1 in June 2018, and it is available at https://www.w3.org/TR/WCAG21/. WCAG 2.1 is discussed in more detail in proposed
Sec. 35.200 below.
``Web Content''
The Department proposes to add a definition for ``web content''
under proposed Sec. 35.104 that is based on the WCAG 2.1 definition
but is slightly less technical and intended to be more easily
understood by the public generally. The Department's proposal defines
``web content'' as ``information or sensory experience--including the
encoding that defines the content's structure, presentation, and
interactions--that is communicated to the user by a web browser or
other software. Examples of web content include text, images, sounds,
videos, controls, animations, and conventional electronic documents.''
WCAG 2.1 defines web content as ``information and sensory experience to
be communicated to the user by means of a user agent, including code or
markup that defines the content's structure, presentation, and
interactions.'' \65\
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\65\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/#glossary [https://perma.cc/YB57-ZB8C].
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The definition of ``web content'' attempts to describe the
different types of information and experiences available on the web.
The Department's NPRM proposes to cover the accessibility of public
entities' web content available on public entities' websites and web
pages regardless of whether the web content is viewed on desktop
computers, laptops, smartphones, or other devices.
The definition of ``web content'' also includes the encoding used
to create the structure, presentation, or interactions of the
information or experiences on web pages that range in complexity from,
for example, pages with only textual information to pages where users
can complete transactions. Examples of languages used to create web
pages include Hypertext Markup Language (``HTML''), Cascading Style
Sheets (``CSS''), Python, SQL, PHP, and JavaScript.
The Department poses questions for feedback about its proposed
approach. Comments on all aspects of this proposed rule, including
these proposed definitions, are invited. Please provide as much detail
as possible and any applicable data, suggested alternative approaches
or requirements, arguments, explanations, and examples in your
responses to the following questions.
Question 1: The Department's definition of ``conventional
electronic documents'' consists of an exhaustive list of specific file
types. Should the Department instead craft a more flexible definition
that generally describes the types of documents that are covered or
otherwise change the proposed definition, such as by including other
file types (e.g., images or movies), or removing some of the listed
file types?
Question 2: Are there refinements to the definition of ``web
content'' the Department should consider? Consider,
[[Page 51959]]
for example, WCAG 2.1's definition of ``web content'' as ``information
and sensory experience to be communicated to the user by means of a
user agent, including code or markup that defines the content's
structure, presentation, and interactions.''
Subpart H--Web and Mobile Accessibility
The Department is proposing to create a new subpart to its title II
regulation. Subpart H would address the accessibility of public
entities' web content and mobile apps.
Sec. 35.200 Requirements for Web and Mobile Accessibility
General
Proposed Sec. 35.200 sets forth specific requirements for the
accessibility of web content and mobile apps of public entities.
Proposed Sec. 35.200(a) requires a public entity to ``ensure the
following are readily accessible to and usable by individuals with
disabilities: (1) web content that a public entity makes available to
members of the public or uses to offer services, programs, or
activities to members of the public; and (2) mobile apps that a public
entity makes available to members of the public or uses to offer
services, programs, or activities to members of the public.'' As
detailed below, the remainder of proposed Sec. 35.200 sets forth the
specific standards that public entities would be required to meet to
make their web content and mobile apps accessible and the proposed
timelines for compliance.
Background on Accessibility Standards for Websites and Web Content
Since 1994, the W3C[supreg] has been the principal international
organization involved in developing protocols and guidelines for the
web.\66\ The W3C[supreg] develops a variety of voluntary technical
standards and guidelines, including ones relating to privacy,
internationalization of technology, and, relevant to this rulemaking,
accessibility. The W3C[supreg]'s WAI has developed voluntary guidelines
for web accessibility, known as WCAG, to help web developers create web
content that is accessible to individuals with disabilities.
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\66\ W3C[supreg], About Us, https://www.w3.org/about/ [https://perma.cc/TQ2W-T377].
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The first version of WCAG, WCAG 1.0, was published in 1999. WCAG
2.0 was published in December 2008, and is available at https://www.w3.org/TR/2008/REC-WCAG20-20081211/ [https://perma.cc/L2NH-VLCR].
WCAG 2.0 was approved as an international standard by the International
Organization for Standardization (``ISO'') and the International
Electrotechnical Commission (``IEC'') in October 2012.\67\ WCAG 2.1,
the most recent and updated recommendation of WCAG, was published in
June 2018, and is available at https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].\68\
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\67\ W3C[supreg], Web Accessibility Guidelines 2.0 Approved as
ISO/IEC International Standard (Oct. 15, 2012), https://www.w3.org/press-releases/2012/wcag2pas/[https://perma.cc/JQ39-HGKQ].
\68\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance [https://perma.cc/5PDG-ZTJE]. Additionally, in May 2021,
WAI published a working draft for WCAG 2.2, which has yet to be
finalized. W3C[supreg], Web Content Accessibility Guidelines 2.2
(May 21, 2021), https://www.w3.org/TR/WCAG22/ [https://perma.cc/M4G8-Z2GY]. The WAI also published a working draft of WCAG 3.0 in
December 2021. W3C[supreg], Web Content Accessibility Guidelines 3.0
(Dec. 7, 2021), https://www.w3.org/TR/wcag-3.0/ [https://perma.cc/7FPQ-EEJ7].
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WCAG 2.1 contains four principles that provide the foundation for
web accessibility: perceivable, operable, understandable, and
robust.\69\ Testable success criteria (i.e., requirements for web
accessibility that are measurable) are provided ``to be used where
requirements and conformance testing are necessary such as in design
specification, purchasing, regulation and contractual agreements.''
\70\ Thus, WCAG 2.1 contemplates establishing testable success criteria
that could be used in regulatory efforts such as this one.
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\69\ Id.
\70\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
WCAG 2 Layers of Guidance (June 5, 2018), https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance [https://perma.cc/5PDG-ZTJE]
(emphasis added).
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Proposed WCAG Version
The Department is proposing to adopt WCAG 2.1 as the technical
standard for web and mobile app accessibility under title II. WCAG 2.1
was published in June 2018 and is available at https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F]. WCAG 2.1 represents the most
recent and updated published recommendation of WCAG. WCAG 2.1
incorporates and builds upon WCAG 2.0--meaning that WCAG 2.1 includes
all of the WCAG 2.0 success criteria, in addition to success criteria
that were developed under WCAG 2.1.\71\ Specifically, WCAG 2.1 added 12
Level A and AA success criteria to the 38 success criteria contained in
WCAG 2.0 Level AA.\72\ The additional criteria provide important
accessibility benefits, especially for people with low vision, manual
dexterity disabilities, and cognitive and learning disabilities.\73\
The additional criteria are intended to improve accessibility for
mobile web content and mobile apps.\74\ The Department anticipates that
WCAG 2.1 is familiar to web developers as it comprises WCAG 2.0's
requirements--which have been in existence since 2008--and 12 new Level
A and AA requirements that have been in existence since 2018.
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\71\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
\72\ Id.
\73\ Id.
\74\ See id.
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The Department expects that adopting WCAG 2.1 as the technical
standard will have benefits that are important to ensuring access for
people with disabilities to public entities' services, programs, and
activities. For example, WCAG 2.1 requires that text be formatted so
that it is easier to read when magnified.\75\ This is important, for
example, for people with low vision who use magnifying tools. Without
the formatting that WCAG 2.1 requires, a person magnifying the text
might find reading the text disorienting because they could have to
scroll horizontally on every line.\76\
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\75\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Reflow (June 5, 2018), https://www.w3.org/TR/WCAG21/#reflow [https://perma.cc/YRP5-M599].
\76\ See id.
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WCAG 2.1 also has new success criteria addressing the accessibility
of mobile apps or web content viewed on a mobile device. For example,
WCAG 2.1 Success Criterion 1.3.4 requires that page orientation (i.e.,
portrait or landscape) not be restricted to just one orientation,
unless a specific display orientation is essential.\77\ This feature is
important, for example, for someone who uses a wheelchair with a tablet
attached to it such that the tablet cannot be rotated.\78\ If content
only works in one orientation (i.e., portrait or landscape) it will not
always work for this individual depending on how the tablet is
oriented, and could render that content or app unusable for the
person.\79\ Another WCAG 2.1 success criterion requires, in part, that
if a device can be operated by motion--for example, shaking the device
to undo typing--that there be an option to turn
[[Page 51960]]
off that motion sensitivity.\80\ This could be important, for example,
for someone who has tremors so that they do not accidentally undo their
typing.\81\
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\77\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Orientation (June 5, 2018), https://www.w3.org/TR/WCAG21/#orientation [https://perma.cc/FC3E-FRYK].
\78\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK]
\79\ See id.
\80\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Motion Actuation (June 5, 2018), https://www.w3.org/TR/WCAG21/#motion-actuation [https://perma.cc/6S93-VX58].
\81\ See W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
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Such accessibility features are critical for people with
disabilities to have equal access to their State or local government's
services, programs, and activities. This is particularly true given
that using mobile devices to access government services is commonplace.
For example, in August 2022, about 54 percent of visits to Federal
Government websites over the previous 90 days were from mobile
devices.\82\ In addition, WCAG 2.1's incorporation of mobile-related
criteria is important because of public entities' increasing use of
mobile apps in offering their services, programs, and activities via
mobile apps. As discussed in more detail later, public entities are
using mobile apps to offer a range of critical government services--
from traffic information, to scheduling trash pickup, to vaccination
appointments.
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\82\ U.S. Gen. Servs. Admin. Digital Analytics Program, https://analytics.usa.gov/ [https://perma.cc/2YZP-KCMG].
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Because WCAG 2.1 is the most recent recommended version of WCAG and
generally familiar to web professionals, the Department expects it is
well-positioned to continue to be relevant even as technology
inevitably evolves. In fact, the W3C[supreg] advises using WCAG 2.1
over WCAG 2.0 when possible because WCAG 2.1 incorporates more forward-
looking accessibility needs.\83\ The WCAG standards were designed to be
``technology neutral.'' \84\ This means that they are designed to be
broadly applicable to current and future web technologies.\85\ Thus,
WCAG 2.1 also allows web and mobile app developers flexibility and
potential for innovation.
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\83\ W3C[supreg], WCAG 2.0 Overview (updated Aug. 6, 2022),
https://www.w3.org/WAI/standards-guidelines/wcag/ [https://perma.cc/L7NX-8XW3].
\84\ W3C[supreg], Introduction to Understanding WCAG (June 20,
2023), https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU].
\85\ See W3C[supreg], Understanding Techniques for WCAG Success
Criteria (June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques [https://perma.cc/AMT4-XAAL].
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The Department also expects that public entities are likely already
familiar with WCAG 2.1 or will be able to become familiar quickly. This
is because WCAG 2.1 has been available since 2018, and it builds upon
WCAG 2.0, which has been in existence since 2008 and has been
established for years as a benchmark for accessibility. In other words,
the Department expects that web developers and professionals who work
for or with public entities are likely to be familiar with WCAG 2.1. If
they are not already familiar with WCAG 2.1, the Department expects
that they are at least likely to be familiar with WCAG 2.0 and will be
able to become acquainted quickly with WCAG 2.1's 12 additional Level A
and AA success criteria. The Department also believes that resources
exist to help public entities implement or understand how to implement
not only WCAG 2.0 Level AA, but also WCAG 2.1 Level AA. Additionally,
public entities will have two or three years to come into compliance
with a final rule, which should also provide sufficient time to get
acquainted with and implement WCAG 2.1.
According to the Department's research, WCAG 2.1 is also being
increasingly used by members of the public and governmental entities.
In fact, the Department recently included WCAG 2.1 in several
settlement agreements with covered entities addressing inaccessible
websites.\86\
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\86\ See, e.g., Settlement Agreement with CVS Pharmacy, Inc.
(Apr. 11, 2022), https://archive.ada.gov/cvs_sa.pdf [https://perma.cc/H5KZ-4VVF]; Settlement Agreement with Meijer, Inc. (Feb. 2,
2022), https://archive.ada.gov/meijer_sa.pdf [https://perma.cc/5FGD-FK42]; Settlement Agreement with The Kroger Co. (Jan. 28, 2022),
https://archive.ada.gov/kroger_co_sa.pdf [https://perma.cc/6ASX-U7FQ]; Settlement Agreement with Champaign-Urbana Mass Transit Dist.
(Dec. 14, 2021), https://www.justice.gov/d9/case-documents/attachments/2021/12/14/champaign-urbana_sa.pdf [https://perma.cc/66XY-QGA8]; Settlement Agreement with Hy-Vee, Inc. (Dec. 1, 2021)
https://archive.ada.gov/hy-vee_sa.pdf [https://perma.cc/GFY6-BJNE];
Settlement Agreement with Rite Aid Corp. (Nov. 1, 2021), https://archive.ada.gov/rite_aid_sa.pdf [https://perma.cc/4HBF-RBK2].
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In evaluating what technical standard to propose, the Department
also considered WCAG 2.0. In addition, the Department considered the
standards set forth under section 508 of the Rehabilitation Act of
1973, which governs the accessibility of the Federal Government's web
content and is harmonized with WCAG 2.0.\87\ In 2017, when the United
States Access Board adopted WCAG 2.0 as the technical standard for the
Federal Government's web content under section 508, WCAG 2.1 had not
been finalized.\88\ The Department ultimately decided to propose WCAG
2.1 as the appropriate standard. A number of countries that have
adopted WCAG 2.0 as their standard are now making efforts to move or
have moved to WCAG 2.1.\89\ In countries that are part of the European
Union, public sector websites and mobile apps generally must meet a
technical standard that requires conformance with the WCAG 2.1 Level AA
success criteria.\90\ And although WCAG 2.0 is the standard adopted by
the Department of Transportation in its rule implementing the Air
Carrier Access Act, which covers airlines' websites and kiosks,\91\
that rule--like the section 508 rule--was promulgated before WCAG 2.1
was published.
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\87\ 36 CFR 1194, app. A.
\88\ See Information and Communication Technology (``ICT'')
Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017);
W3C[supreg], Web Content Accessibility Guidelines 2.1 (June 5,
2018), https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].
\89\ See e.g., Exploring WCAG 2.1 for Australian government
services, Australian Government Digital Transformation Agency (Aug.
22, 2018), https://www.dta.gov.au/blogs/exploring-wcag-21-australian-government-services. A Perma archive link was unavailable
for this citation.
\90\ Web Accessibility, European Comm'n (updated July 13, 2022),
https://digital-strategy.ec.europa.eu/en/policies/web-accessibility
[https://perma.cc/LSG9-XW7L]; Accessibility Requirements for ICT
Products and Services, European Telecomm. Standards Institute, 45-
51, 64-78 (Mar. 2021), https://www.etsi.org/deliver/etsi_en/301500_301599/301549/03.02.01_60/en_301549v030201p.pdf [https://perma.cc/5TEZ-9GC6].
\91\ See 14 CFR 382.43(c)-(e), 382.57.
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The Department expects that the wide usage of WCAG 2.0 lays a solid
foundation for public entities to become familiar with and implement
WCAG 2.1's additional Level A and AA criteria. According to the
Department's research, approximately 48 States either use or strive to
use a WCAG 2.0 standard or greater for at least some of their web
content. It appears that at least four of these States--Louisiana,
Maryland, Nebraska, and Washington--already either use WCAG 2.1 or
strive to use WCAG 2.1 for at least some of their web content.
WCAG 2.1 represents the most up-to-date recommendation and is
generally familiar to web professionals. It offers important
accessibility benefits for people with disabilities that affect manual
dexterity, adds some criteria to reduce barriers for those with low
vision and cognitive disabilities, and expands coverage of mobile
content. Given that public entities will have two or three years to
comply, the Department views WCAG 2.1 as the appropriate technical
standard to propose at this time.
The Department is aware that a working draft for WCAG 2.2 was
published in May 2021.\92\ Several subsequent drafts have also been
[[Page 51961]]
published.\93\ All of the WCAG 2.0 and WCAG 2.1 success criteria except
for one are included in WCAG 2.2.\94\ But WCAG 2.2 also includes six
additional Level A and AA success criteria beyond those included in
WCAG 2.1.\95\ Like WCAG 2.1, WCAG 2.2 offers benefits for individuals
with low vision, limited manual dexterity, and cognitive disabilities.
For example, Success Criterion 3.3.8, which is a new criterion under
WCAG 2.2, improves access for people with cognitive disabilities by
limiting the use of cognitive function tests, like solving puzzles, in
authentication processes.\96\ Because WCAG 2.2 has not yet been
finalized and is subject to change, and web professionals have had less
time to become familiar with the additional success criteria that have
been incorporated into WCAG 2.2, the Department does not believe it is
appropriate to adopt WCAG 2.2 as the technical standard at this time.
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\92\ W3C[supreg], Web Content Accessibility Guidelines 2.2 (May
21, 2021), https://www.w3.org/TR/2021/WD-WCAG22-20210521/ [https://perma.cc/M4G8-Z2GY].
\93\ See, e.g., W3C[supreg], Web Content Accessibility
Guidelines 2.2 (May 17, 2023), https://www.w3.org/TR/WCAG22/
[https://perma.cc/SXA7-RF32].
\94\ W3C[supreg], What's New in WCAG 2.2 Draft (May 17, 2023),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-22/ [https://perma.cc/Y67R-SFSE].
\95\ Id.
\96\ Id.
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The Department is seeking feedback from the public about its
proposal to use WCAG 2.1 as the standard under this rule and its
assumptions underlying this decision. Please provide as much detail as
possible and any applicable data, suggested alternative approaches or
requirements, arguments, explanations, and examples in your responses
to the following questions.
Question 3: Are there technical standards or performance standards
other than WCAG 2.1 that the Department should consider? For example,
if WCAG 2.2 is finalized before the Department issues a final rule,
should the Department consider adopting that standard? If so, what is a
reasonable time frame for State and local compliance with WCAG 2.2 and
why? Is there any other standard that the Department should consider,
especially in light of the rapid pace at which technology changes?
Proposed WCAG Conformance Level
For a web page to conform to WCAG 2.1, the web page must satisfy
the success criteria under one of three levels of conformance: A, AA,
or AAA. The three levels of conformance indicate a measure of
accessibility and feasibility. Level A, which is the minimum level of
accessibility, contains criteria that provide basic web accessibility
and are the least difficult to achieve for web developers.\97\ Level
AA, which is the intermediate level of accessibility, includes all of
the Level A criteria and contains enhanced criteria that provide more
comprehensive web accessibility, and yet are still achievable for most
web developers.\98\ Level AAA, which is the highest level of
conformance, includes all of the Level A and Level AA criteria and
contains additional criteria that can provide a more enriched user
experience, but are the most difficult to achieve for web
developers.\99\ The W3C[supreg] does not recommend that Level AAA
conformance be required as a general policy for entire websites because
it is not possible to satisfy all Level AAA criteria for some
content.\100\
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\97\ W3C[supreg], Web Content Accessibility Guidelines (WCAG) 2
Level A Conformance (July 13, 2020), https://www.w3.org/WAI/WCAG2A-Conformance [https://perma.cc/KT74-JNHG].
\98\ Id.
\99\ Id.
\100\ See W3C[supreg], Understanding Conformance, Understanding
Requirement 1, https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/9ZG9-G5N8].
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Based on review of previous public feedback and independent
research, the Department believes that WCAG 2.1 Level AA is an
appropriate conformance level because it includes criteria that provide
web accessibility to individuals with disabilities--including those
with visual, auditory, physical, speech, cognitive, and neurological
disabilities--and yet is feasible for public entities' web developers
to implement. In addition, Level AA conformance is widely used, making
it more likely that web developers are already familiar with its
requirements. Though many of the entities that conform to Level AA do
so under WCAG 2.0, not 2.1, this still suggests a widespread
familiarity with most of the Level AA success criteria, given that 38
of the 50 Level A and AA success criteria in WCAG 2.1 are also included
in WCAG 2.0. The Department believes that Level A conformance alone is
not appropriate because it does not include criteria for providing web
accessibility that the Department understands are critical, such as a
minimum level of color contrast so that items like text boxes or icons
are easier to see, which is important for people with vision
disabilities. Also, while Level AAA conformance provides a richer user
experience, it is the most difficult to achieve for many entities.
Therefore, the Department is proposing Level AA conformance for public
feedback as to whether it strikes the right balance between
accessibility for individuals with disabilities and achievability for
public entities. Adopting a WCAG 2.1 Level AA conformance level would
make the ADA requirements consistent with a standard that has been
widely accepted internationally. Many nations have selected Level AA
conformance as their standard for web accessibility.\101\ The web
content of Federal agencies that are governed by section 508 also need
to comply with Level AA.\102\ In its proposed regulatory text in Sec.
35.200(b)(1) and (2), the Department provides that public entities must
``comply with Level A and Level AA success criteria and conformance
requirements specified in WCAG 2.1.'' WCAG 2.1 provides that for
``Level AA conformance, the web page [must] satisf[y] all the Level A
and Level AA Success Criteria . . . .'' \103\ However, individual
success criteria in WCAG 2.1 are labeled only as Level A or Level AA.
Therefore, a person reviewing individual requirements in WCAG 2.1 may
not understand that both Level A and Level AA success criteria must be
met in order to attain Level AA. Accordingly, the Department has made
explicit in its proposed regulation that both Level A and Level AA
success criteria and conformance requirements must be met in order to
comply with the proposed web accessibility requirements.
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\101\ See W3C[supreg], Web Accessibility Laws & Policies (Mar.
21, 2018), https://www.w3.org/WAI/policies/ [https://perma.cc/5EBY-3WX4].
\102\ See Information and Communication Technology (``ICT'')
Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017).
\103\ See W3C[supreg], Conformance Requirements, Web Content
Accessibility Guidelines (WCAG) 2.1 (June 5, 2018), https://www.w3.org/TR/WCAG21/#cc1 [https://perma.cc/ZL6N-VQX4]. WCAG 2.1
also states that a Level AA conforming alternate version may be
provided. The Department has adopted a slightly different approach
to conforming alternate versions, which is discussed below.
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Conformance Level for Small Public Entities
The Department considered proposing another population threshold of
very small entities that would be subject to a lower conformance level
or WCAG version, to reduce the burden of compliance on those entities.
However, the Department decided against this proposal due to a variety
of factors. First, this would make for inconsistent levels of WCAG
conformance across public entities, and a universal standard for
consistency in implementation would promote predictability. A universal
level of conformance would reduce confusion about which standard
applies, and it would create a basic level of conformance for all
public entities to follow. It would also allow for people with
disabilities to know what they can
[[Page 51962]]
expect when navigating a public entity's web content; for example, it
will be helpful for people with disabilities to know that they can
expect to be able to navigate a public entity's web content
independently using their assistive technology. Finally, for the
reasons discussed above, the Department believes that WCAG 2.1 Level AA
contains criteria that are critical to accessing services, programs,
and activities of public entities, which may not be included under a
lower standard. However, the Department recognizes that small public
entities--those with a total population of less than 50,000 based on
Census data--might initially face more technical and resource
challenges in complying than larger public entities. Therefore, as
discussed below, the Department has decided to propose different
compliance dates according to a public entity's size to reduce burdens
on small public entities.
Possible Alternative Standards for Compliance
The Department considered proposing to adopt the section 508
standards but decided not to take this approach. The section 508
standards are harmonized with WCAG 2.0, and for the reasons discussed
above, the Department believes WCAG 2.1--which had not been finalized
at the time the section 508 standards were promulgated--is the more
appropriate recommendation for this proposed rule. Moreover, by
adopting WCAG on its own rather than adopting it through the section
508 standards, the Department can then tailor the rule to public
entities as it does in this proposed rule.
The Department also considered adopting performance standards
instead of specific technical standards for accessibility of web
content. Performance standards establish general expectations or goals
for web accessibility and allow for compliance via a variety of
unspecified methods. Performance standards could provide greater
flexibility in ensuring accessibility as web technologies change.
However, based on what the Department has heard previously from the
public and its own knowledge of this area, the Department understands
that performance standards might be too vague and subjective and could
prove insufficient in providing consistent and testable requirements
for web accessibility. Additionally, the Department expects that
performance standards would likely not result in predictability for
either public entities or people with disabilities in the way that a
more specific technical standard would. Further, similar to a
performance standard, WCAG has been designed to allow for flexibility
and innovation in the evolving web environment. The Department
recognizes the importance of adopting a standard for web accessibility
that provides not only specific and testable requirements, but also
sufficient flexibility to develop accessibility solutions for new web
technologies. The Department believes that WCAG achieves this balance
because it provides flexibility similar to a performance standard, but
it also provides more clarity, consistency, predictability, and
objectivity. Using WCAG also enables public entities to know precisely
what is expected of them under title II, which may be of particular
benefit to jurisdictions with less technological experience. This will
assist public entities in targeting accessibility errors, which may
reduce costs they would incur without clear expectations.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 4: What compliance costs and challenges might small public
entities face in conforming with this rule? How accessible are small
public entities' web content and mobile apps currently? Do small public
entities have internal staff to modify their web content and mobile
apps, or do they use outside consulting staff to modify and maintain
their web content and mobile apps? If small public entities have
recently (for example, in the past three years) modified their web
content or mobile apps to make them accessible, what costs were
associated with those changes?
Question 5: Should the Department adopt a different WCAG version or
conformance level for small entities or a subset of small entities?
Public Entities' Use of Social Media Platforms
Public entities are increasingly using social media platforms to
provide information and communicate with the public about their
services, programs, and activities in lieu of or in addition to
engaging the public on their own websites. The Department is using the
term ``social media platforms'' to refer to websites or mobile apps of
third parties whose primary purpose is to enable users to create and
share content in order to participate in social networking (i.e., the
creation and maintenance of personal and business relationships online
through websites and mobile apps like Facebook, Instagram, Twitter, and
LinkedIn).
The Department is proposing to require that web content that public
entities make available to members of the public or use to offer
services, programs, and activities to members of the public be
accessible within the meaning of proposed Sec. 35.200. This
requirement would apply regardless of whether that web content is
located on the public entity's own website or elsewhere on the web. It
therefore covers web content that a public entity makes available via a
social media platform. Even where a social media platform is not fully
accessible, a public entity can generally take actions to ensure that
the web content that it posts is accessible and in compliance with WCAG
2.1.\104\ The Department understands that social media platforms often
make available certain accessibility features like the ability to add
captions or alt text. It is the public entity's responsibility to use
these features when it makes web content available on social media
sites. For example, if a public entity posts an image to a social media
site that allows users to post alt text, the public entity needs to
ensure that appropriate alt text accompanies that image so that screen
reader users can access the information.
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\104\ See Federal Social Media Accessibility Toolkit Hackpad,
Digital.gov (updated June 21, 2022), https://digital.gov/resources/federal-social-media-accessibility-toolkit-hackpad/ [https://perma.cc/DJ8X-UCHA].
---------------------------------------------------------------------------
At this time, the Department is not proposing any regulatory text
specific to the web content that public entities make available to
members of the public via social media platforms because web content
posted on social media platforms will be treated the same as any other
content public entities post on the web. However, the Department is
considering creating an exception from coverage under the rule for
social media posts if they were posted before the effective date of the
rule. This exception would recognize that making preexisting social
media content accessible may be impossible at this time or result in a
significant burden. Many public entities have posted social media
content for several years, often numbering thousands of posts, which
may not all be accessible. The benefits of making all preexisting
social media posts accessible might also be limited as these posts are
intended to provide current updates on platforms that are frequently
refreshed with new information. The Department is considering this
exception in recognition of the fact that many entities' resources may
be better spent
[[Page 51963]]
ensuring that current web content is accessible, rather than reviewing
all preexisting social media content for compliance or possibly
deleting their previous posts. The Department is looking for input on
whether this approach would make sense and whether any limitations to
this approach are necessary, such as providing that the exception does
not apply when preexisting social media content is currently used to
offer a service, program, or activity, or possibly limiting this
exception when the public requests certain social media content to be
made accessible.
The Department is also weighing whether public entities'
preexisting videos posted to social media platforms such as YouTube
should be excepted from coverage due to these same concerns or
otherwise be treated differently.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 6: How do public entities use social media platforms and
how do members of the public use content made available by public
entities on social media platforms? What kinds of barriers do people
with disabilities encounter when attempting to access public entities'
services via social media platforms?
Mobile Applications
The Department is proposing to adopt the same technical standard
for mobile app accessibility as it is for web content--WCAG 2.1 Level
AA. As discussed earlier, WCAG 2.1 was published in June 2018 and was
developed, in part, to address mobile accessibility.\105\
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\105\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
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The Department considered applying WCAG 2.0 Level AA to mobile
apps, which is a similar approach to the requirements in the final rule
promulgated by the United States Access Board in its update to the
section 508 standards.\106\ WCAG 2.1 was not finalized when the Access
Board adopted the section 508 standards. When WCAG 2.0 was originally
drafted in 2008, mobile apps were not as widely used or developed.
Further, the technology has grown considerably since that time.
Accordingly, WCAG 2.1 provides 12 additional Level A and AA success
criteria not included in WCAG 2.0 to ensure, among other things, that
mobile apps are more accessible to individuals with disabilities using
mobile devices.\107\ For example, WCAG 2.1 includes Success Criterion
1.4.12, which ensures that text spacing like letter spacing, line
spacing, and word spacing meets certain requirements to ensure
accessibility; Success Criterion 2.5.4, which enables the user to
disable motion actuation (e.g., the ability to activate a device's
function by shaking it) to prevent such things as accidental deletion
of text; and Success Criterion 1.3.5, which allows a user to input
information such as a name or address automatically.\108\
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\106\ See 82 FR 5790, 5815 (Jan. 18, 2017).
\107\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
\108\ W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].
---------------------------------------------------------------------------
The Access Board's section 508 standards include additional
requirements applicable to mobile apps that are not in WCAG 2.1, and
the Department is requesting feedback on whether to adopt those
requirements as well. For example, the section 508 standards apply the
following requirements not found in WCAG 2.1 to mobile apps:
interoperability requirements to ensure that a mobile app does not
disrupt a device's assistive technology for persons with disabilities
(e.g., screen readers for persons who are blind or have low vision);
requirements for mobile apps to follow preferences on a user's phone
such as settings for color, contrast, and font size; and requirements
for caption controls and audio description controls that enable users
to adjust caption and audio description functions.\109\
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\109\ 36 CFR 1194, app. C (Sec. Sec. 502.1, 502.2.2, 503.2,
503.4.1, 503.4.2).
---------------------------------------------------------------------------
Adopting WCAG 2.1 Level AA for mobile apps will help ensure this
rule's accessibility standards for mobile apps are consistent with this
rule's accessibility standards for web content. We seek comments on
this approach below. Please provide as much detail as possible and any
applicable data, suggested alternative approaches or requirements,
arguments, explanations, and examples in your responses to the
following questions.
Question 7: How do public entities use mobile apps to make
information and services available to the public? What kinds of
barriers do people with disabilities encounter when attempting to
access public entities' services, programs, and activities via mobile
apps? Are there any accessibility features unique to mobile apps that
the Department should be aware of?
Question 8: Is WCAG 2.1 Level AA the appropriate accessibility
standard for mobile apps? Should the Department instead adopt another
accessibility standard or alternative for mobile apps, such as the
requirements from section 508 discussed above?
Requirements by Entity Size
Section 35.200(b) sets forth the proposed specific standard with
which the web content and mobile apps that public entities make
available to members of the public or use to offer services, programs,
and activities to members of the public must comply, and also proposes
time frames for compliance. The proposed requirements of Sec.
35.200(b) are generally delineated by the size of the population of the
public entity, as calculated by the U.S. Census Bureau.
Section 35.200(b)(1): Larger Public Entities
Section 35.200(b)(1) sets forth the proposed web and mobile app
accessibility requirements for public entities with a total population
of 50,000 or more. The requirements of proposed Sec. 35.200(b)(1) are
meant to apply to larger public entities--specifically, to those public
entities that do not qualify as ``small governmental jurisdictions'' as
defined in the Regulatory Flexibility Act.\110\ As applied to this
proposed rule, the Department defines the population of a public entity
by the total general population of the jurisdiction as calculated by
the U.S. Census Bureau. If a public entity does not have a specific
population calculated by the U.S. Census Bureau, but belongs to another
jurisdiction that does, the population of the entity is determined by
the population of the jurisdiction to which the entity belongs. For
example, a county police department in a county with a population of
5,000 is a small public entity, while a city police department in a
city with a population of 200,000 is not a small public entity. For
purposes of this rule, a population of a public entity is not defined
by the population that is eligible for or that takes advantage of the
specific services of the public entity. For example, a county school
district in a county with a population of 60,000 adults and children is
not a small public entity regardless of the number of students
[[Page 51964]]
enrolled or eligible for services. Similarly, individual county schools
are also not considered small public entities if they are components of
a county government that has a population of over 50,000 (i.e., when
the individual county schools are not separate legal entities). Though
a specific county school may create and maintain web content or a
mobile app, the county, as the legal entity governed by title II, is
also responsible for what happens in the individual school. The
Department expects that the specific school benefits from the resources
made available or allocated by the county.
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\110\ 5 U.S.C. 601(5) (``[T]he term `small governmental
jurisdiction' means governments of cities, counties, towns,
townships, villages, school districts, or special districts, with a
population of less than fifty thousand . . . .'').
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The Department is also proposing this approach because, practically
speaking, it is likely to make it easier for public entities to
determine their population size. Under the Department's proposal,
population size is used to determine a public entity's compliance time
frame. Some public entities, like libraries or public universities and
community colleges, do not have population data associated with them in
the U.S. Census. By using the population data associated with the
entity the library or university belongs to, like a county or State,
the library or university can assess its compliance time frame. This
also allows the county or State as a whole to assess compliance for its
services, programs, and activities holistically.
Proposed Sec. 35.200(b)(1) requires that a public entity, other
than a special district government, with a total population of 50,000
or more shall ensure that the web content and mobile apps it makes
available to members of the public or uses to offer services, programs,
or activities to members of the public comply with Level A and Level AA
success criteria and conformance requirements specified in WCAG 2.1.
Public entities subject to proposed Sec. 35.200(b)(1) have two years
after the publication of a final rule to make their web content and
mobile apps accessible, unless they can demonstrate that compliance
with proposed Sec. 35.200(b)(1) would result in a fundamental
alteration in the nature of a service, program, or activity or in undue
financial and administrative burdens. The limitations on a public
entity's obligation to comply with the proposed requirements are
discussed in more detail below.
The Department has received varied feedback from the public in the
past regarding an appropriate time frame for requiring compliance with
technical web accessibility standards. Individuals with disabilities or
disability advocacy organizations tended to prefer a shorter time
frame, often arguing that web accessibility has long been required by
the ADA and that extending the deadline for compliance rewards entities
that have not made efforts to make their websites accessible. Some
covered entities have asked for more time to comply. State and local
government entities have been particularly concerned about shorter
compliance deadlines, often citing budgets and staffing as major
limitations. In the past, many public entities stated that they lacked
qualified personnel to implement the web accessibility requirements of
WCAG 2.0, which was relatively new at the time. They told the
Department that in addition to needing time to implement the changes to
their websites, they also needed time to train staff or contract with
professionals who are proficient in developing accessible websites.
Considering all these factors, as well as the facts that over a decade
has passed since the Department started receiving such feedback and
there is more available technology to make web content and mobile apps
accessible, the Department is proposing a two-year implementation time
frame for public entities with a total population of 50,000 or more.
Regulated entities and the community of web developers have had over a
decade to familiarize themselves with WCAG 2.0, which was published in
2008 and serves as the foundation for WCAG 2.1, and five years to
familiarize themselves with the additional 12 Level A and AA success
criteria of WCAG 2.1. Though the Department is now proposing requiring
public entities to comply with WCAG 2.1 instead of WCAG 2.0, the
Department believes the time allowed to come into compliance is
appropriate. As discussed above, WCAG 2.1 Level AA only adds 12 Level A
and AA success criteria that were not included in WCAG 2.0. The
Department believes these additional success criteria will not
significantly increase the time or resources that it will take for a
public entity to come into compliance with the proposed rule beyond
what would have already been required to comply with WCAG 2.0, though
the Department seeks the public's input on this belief. The Department
therefore believes this proposal balances the resource challenges
reported by public entities with the interests of individuals with
disabilities in accessing the multitude of services, programs, and
activities that public entities now offer via the web and mobile apps.
Section 35.200(b)(2): Small Public Entities and Special District
Governments
The Department has also previously received public input on whether
it should consider different compliance requirements or a different
compliance date for small entities in order to take into account the
impact on small entities as required by the Regulatory Flexibility Act
of 1980 and Executive Order 13272.\111\ Many disability organizations
and individuals have opposed having a different timetable or different
accessibility requirements for smaller entities, stating that many
small entities have smaller and less complex websites with fewer web
pages, which would make compliance easier. The Department has also
heard from other members of the public opposing different timetables or
different accessibility requirements for smaller entities. These
commenters note that small public entities are protected from excessive
burdens deriving from rigorous compliance dates or stringent
accessibility standards by the ADA's ``undue burden'' compliance
limitations. It is also the Department's understanding that many web
accessibility professionals may operate online and could be available
to assist entities with compliance regardless of their location.
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\111\ See Nondiscrimination on the Basis of Disability;
Accessibility of Web Information and Services of State and Local
Government Entities and Public Accommodations, 75 FR 43460, 43467
(July 26, 2010).
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Many of those expressing concerns about compliance dates,
especially web developers as well as State and local government
entities, have stated that compliance in incremental levels would help
public entities to allocate resources--both financial and personnel--to
bring their websites into compliance. Such entities have noted that
many small State and local government entities do not have a dedicated
web developer or staff. The Department has heard that when these small
entities develop or maintain their own websites, they often do so with
staff or volunteers who have only a cursory knowledge of web design and
use manufactured web templates or software, which may create
inaccessible web pages. Some small public entities have expressed
concern that even when they do use outside help, there is likely to be
a shortage of professionals who are proficient in web accessibility and
can assist all public entities in bringing their websites into
compliance. Some public entities have also expressed concern that
smaller entities would need to take
[[Page 51965]]
down their websites because they would not be able to comply with the
accessibility requirements, although the Department notes that public
entities would not be required to undertake changes that would impose
an undue financial and administrative burden.
In light of these concerns, proposed Sec. 35.200(b)(2) sets forth
the Department's proposed web and mobile app accessibility requirements
for small public entities and special district governments.
Specifically, proposed Sec. 35.200(b)(2) covers those public entities
with a total population of less than 50,000 and special district
governments. Section 35.200(b)(2) would require these public entities
to ensure that the web content and mobile apps they make available to
the public or use to offer services, programs, and activities to
members of the public, comply with Level A and Level AA success
criteria and conformance requirements specified in WCAG 2.1, unless
they can demonstrate that compliance would result in a fundamental
alteration in the nature of a service, program, or activity or in undue
financial and administrative burdens. This is the same substantive
standard that applies to larger entities. However, the Department is
proposing to give these small entities additional time to bring their
web content and mobile apps into compliance with proposed Sec.
35.200(b)(2). Specifically, small public entities and special district
governments covered by proposed Sec. 35.200(b)(2) will have three
years after the publication of a final rule to make their web content
and mobile apps compliant with the Department's proposed requirements.
The Department believes this longer phase-in period would be prudent to
allow small public entities and special district governments to
properly allocate their personnel and financial resources in order to
bring their web content and mobile apps into compliance with the
Department's proposed requirements. However, the Department welcomes
feedback on whether there are alternatives to delaying compliance
requirements by a year that could better balance the needs of small
public entities and the people with disabilities who live in those
communities.
Proposed Sec. 35.200(b)(2) also covers public entities that are
special district governments. As previously noted, special district
governments are governments that are authorized to provide a single
function or a limited number of functions, such as a zoning or transit
authority. As discussed above, proposed Sec. 35.200 proposes different
compliance dates according to the size of the population of the public
entity, as calculated by the U.S. Census Bureau. The Department
believes applying to special district governments the same compliance
date as proposed for small public entities (i.e., compliance in three
years) may be appropriate for two reasons. First, because the U.S.
Census Bureau does not provide population estimates for special
district governments, these limited-purpose public entities would find
it difficult to obtain population estimates that are objective and
reliable in order to determine their duties under the proposed rule.
Though some special district governments may estimate their total
populations, these entities may use varying methodology to calculate
population estimations, which may lead to confusion and inconsistency
in the application of the proposed accessibility requirements. Second,
although special district governments in some instances may serve a
large population, unlike counties, cities, or townships with large
populations that provide a wide range of online government services and
programs and have large and varying budgets, special district
governments are authorized to provide a single function or a limited
number of functions (e.g., to provide mosquito abatement or water and
sewer services) and have more limited or specialized budgets.
Therefore, proposed Sec. 35.200(b)(2) extends the deadline for
compliance for special district governments to three years, as it does
for small public entities.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 9: How will the proposed compliance date affect small
public entities? Are there technical or budget constraints that small
public entities would face in complying with this rule, such that a
longer phase-in period is appropriate?
Question 10: How will the proposed compliance date affect people
with disabilities, particularly in rural areas?
Question 11: How should the Department define ``small public
entity''? Should categories of small public entities other than those
already delineated in this proposed rule be subject to a different WCAG
2.1 conformance level or compliance date?
Question 12: Should the Department consider factors other than
population size, such as annual budget, when establishing different or
tiered compliance requirements? If so, what should those factors be,
why are they more appropriate than population size, and how should they
be used to determine regulatory requirements?
Limitations
The proposed rule sets forth the limitations on public entities'
obligations to comply with the specific requirements of this proposed
rule. For example, where it would impose an undue financial and
administrative burden to comply with WCAG 2.1 (or part of WCAG 2.1),
public entities would not be required to remove their web content and
mobile apps, forfeit their web presence, or otherwise undertake changes
that would be unduly burdensome. Further, as proposed in Sec.
35.200(b), the web and mobile app accessibility requirements would not
require any public entity to take actions that would result in a
fundamental alteration in the nature of a service, program, or
activity.
In circumstances where officials of a public entity believe that
the proposed action would fundamentally alter the service, program, or
activity or would result in undue financial and administrative burdens,
a public entity has the burden of proving that compliance would result
in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the head of the
public entity or their designee after considering all resources
available for use in the funding and operation of the service, program,
or activity and must be accompanied by a written statement of the
reasons for reaching that conclusion. If an action required to comply
with proposed Sec. 35.200(b) would result in such an alteration or
such burdens, a public entity must take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that, to the maximum extent possible, individuals with
disabilities receive the benefits or services provided by the public
entity. For more information, see the discussion below regarding
limitations on obligations under proposed Sec. 35.204.
Captions for Live-Audio Content
WCAG 2.1 Level AA Success Criterion 1.2.4 requires synchronized
captions for live-audio content. The intent of this success criterion
is to ``enable people who are deaf or hard of hearing to watch real-
time presentations. Captions provide the part of the content available
via the audio track. Captions not only include dialogue, but also
identify who is speaking and notate sound effects and
[[Page 51966]]
other significant audio.'' \112\ Modern live captioning often can be
created with the assistance of technology, such as by assigning
captioners through Zoom or other conferencing software, which
integrates captioning with live meetings.
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\112\ W3C[supreg], Captions (Live), Understanding SC 1.2.4,
Understanding WCAG 2.0: A Guide to Understanding and Implementing
WCAG 2.0, https://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-real-time-captions.html [https://perma.cc/NV74-U77R] (emphasis in
original).
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The Department proposes to apply the same compliance date to all of
the WCAG 2.1 Level AA success criteria, including live-audio captioning
requirements. As noted above, this would allow for three years after
publication of the final rule for small public entities and special
district governments to comply, and two years for large public
entities. The Department believes this approach is appropriate for
several reasons. First, the Department understands that technology
utilizing live-audio captioning has developed in recent years and
continues to develop. In addition, the COVID-19 pandemic moved a
significant number of formerly in-person meetings, activities, and
other gatherings to online settings, many of which incorporated live-
audio captioning. As a result of these developments, live-audio
captioning has become even more critical for individuals with certain
types of disabilities to participate fully in civic life. And while the
Department believes that the two- and three-year periods described
above afford a sufficient amount of time for public entities to
allocate resources towards live-audio captioning, public entities have
the option to demonstrate that compliance with any success criterion
would result in a fundamental alteration in the nature of a service,
program, or activity or in undue financial and administrative burdens.
Though at least one country that has adopted WCAG 2.0 Level AA as
its standard for web accessibility has exempted entities from having to
comply with the live-audio captioning requirements,\113\ the Department
does not believe this approach is appropriate or necessary under the
current circumstances, given the current state of live-audio captioning
technology and the critical need for live-audio captioning for people
with certain types of disabilities to participate more fully in civic
life. Further, the Department believes that the state of live-audio
captioning technology has advanced since 2016 when Canada made the
decision to exempt entities from the live-audio captioning
requirements.\114\ However, the Department is interested in learning
more about compliance capabilities. Accordingly, the Department poses
several questions for commenters about the development of live-audio
captioning technology and the Department's proposed requirement.
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\113\ See W3C[supreg], Canada (last updated Feb. 9, 2017),
https://www.w3.org/WAI/policies/canada/ [https://perma.cc/W2DS-FAE9].
\114\ See id.
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Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 13: Should the Department consider a different compliance
date for the captioning of live-audio content in synchronized media or
exclude some public entities from the requirement? If so, when should
compliance with this success criterion be required and why? Should
there be a different compliance date for different types or sizes of
public entities?
Question 14: What types of live-audio content do public entities
and small public entities post? What has been the cost for providing
live-audio captioning?
Sec. 35.201 Exceptions
This rule would require public entities to make their web content
and mobile apps accessible. However, the Department believes it may be
appropriate in some situations for certain content to be excepted from
compliance with the technical requirements of this proposed rule. The
Department has heard a range of views on this issue, including that a
title II regulation should not include any exceptions because the
compliance limitations for undue financial and administrative burdens
would protect public entities from any unrealistic requirements. On the
other hand, the Department has also heard that exceptions are necessary
to avoid substantial burdens on public entities. The Department also
expects that such exceptions may help public entities avoid uncertainty
about whether they need to ensure accessibility in situations where it
might be extremely difficult. After consideration of the public's views
and after its independent assessment, the Department is proposing the
following exceptions and poses questions for public feedback. The
Department is interested in feedback about whether these proposed
exceptions would relieve the burden on public entities, and also how
these proposed exceptions would impact people with disabilities.
The Department is proposing exceptions from coverage--subject to
certain limitations--for the following seven categories of web content:
(1) archived web content; (2) preexisting conventional electronic
documents; (3) web content posted by third parties on a public entity's
website; (4) third-party web content linked from a public entity's
website; (5) course content on a public entity's password-protected or
otherwise secured website for admitted students enrolled in a specific
course offered by a public postsecondary institution; (6) class or
course content on a public entity's password-protected or otherwise
secured website for students enrolled, or parents of students enrolled,
in a specific class or course at a public elementary or secondary
school; and (7) conventional electronic documents that are about a
specific individual, their property, or their account and that are
password-protected or otherwise secured. Additionally, there are
certain limitations to these exceptions--situations in which the
otherwise excepted content still must be made accessible. This proposed
rule's exceptions as well as the limitations on those exceptions are
explained below.
Archived Web Content
Public entities' websites can often include a significant amount of
archived web content, which may contain information that is outdated,
superfluous, or replicated elsewhere. The Department's impression is
that generally, this historic information is of interest to only a
small segment of the general population. Still, the information may be
of interest to some members of the public, including some individuals
with disabilities, who are conducting research or are otherwise
interested in these historic documents. The Department is aware and
concerned, however, that based on current technologies, public entities
would need to expend considerable resources to retroactively make
accessible the large quantity of historic or otherwise outdated
information available on public entities' websites. Thus, proposed
Sec. 35.201(a) provides an exception from the web access requirements
of proposed Sec. 35.200 for web content that meets the definition of
``archived web content'' in proposed Sec. 35.104. As mentioned
previously, proposed Sec. 35.104 defines ``archived web content'' as
``web content that (1) is maintained exclusively for reference,
research, or recordkeeping; (2) is not altered or updated after the
date of archiving; and (3) is organized and stored in a dedicated area
or areas clearly identified as being archived.''
[[Page 51967]]
The archived web content exception allows public entities to keep and
maintain historic web content, while utilizing their resources to make
accessible the many up-to-date materials that people need to currently
access public services or to participate in civic life.
The Department notes that under this exception, public entities may
not circumvent their accessibility obligations by merely labeling their
web content as ``archived'' or by refusing to make accessible any
content that is old. The exception focuses narrowly on content that
satisfies all three of the criteria necessary to qualify as ``archived
web content,'' namely content that is maintained exclusively for
reference, research, or recordkeeping; is not altered or updated after
the date of archiving; and is organized and stored in a dedicated area
or areas clearly identified as being archived. If any one of those
criteria is not met, the content does not qualify as ``archived web
content.'' For example, if an entity maintains content for any purpose
other than reference, research, or recordkeeping--such as for purposes
of offering a current service, program, or activity--then that content
would not fall within the exception, even if an entity labeled it as
``archived.'' Similarly, an entity would not be able to circumvent its
accessibility obligations by rapidly moving newly posted content that
is maintained for a purpose other than reference, research, or
recordkeeping, or that the entity continues to update, from a non-
archived section of its website to an archived section.
Though the Department proposes that archived web content be
excepted from coverage under this rule, if an individual with a
disability requests that certain archived web content be made
accessible, public entities generally have an existing obligation to
make these materials accessible in a timely manner and free of
charge.\115\
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\115\ See, e.g., 28 CFR 35.130(b)(7)(i), (f), 35.160(b)(2).
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Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 15: How do public entities currently manage content that
is maintained for reference, research, or recordkeeping?
Question 16: What would the impact of this exception be on people
with disabilities?
Question 17: Are there alternatives to this exception that the
Department should consider, or additional limitations that should be
placed on this exception? How would foreseeable advances in technology
affect the need for this exception?
Preexisting Conventional Electronic Documents
As discussed in the section-by-section analysis for proposed Sec.
35.104 above, the Department is proposing to add a definition for
``conventional electronic documents.'' Specifically, the proposed
definition provides that the term ``conventional electronic documents''
``means web content or content in mobile apps that is in the following
electronic file formats: portable document formats (`PDF'), word
processor file formats, presentation file formats, spreadsheet file
formats, and database file formats.'' This list of conventional
electronic documents is intended to be an exhaustive list of file
formats, rather than an open-ended list.
Proposed Sec. 35.201(b) provides that ``conventional electronic
documents created by or for a public entity that are available on a
public entity's website or mobile app before the date the public entity
is required to comply with this rule'' do not have to comply with the
accessibility requirements of proposed Sec. 35.200, ``unless such
documents are currently used by members of the public to apply for,
gain access to, or participate in a public entity's services, programs,
or activities.''
The Department's research indicates that many websites of public
entities contain a significant number of conventional electronic
documents, such as comprehensive reports on water quality containing
text, images, charts, graphs, and maps. The Department expects that
many of these conventional electronic documents are in PDF format, but
many conventional electronic documents are formatted as word processor
files (e.g., Microsoft Word files), presentation files (e.g., Apple
Keynote or Microsoft PowerPoint files), spreadsheet files (e.g.,
Microsoft Excel files), and database files (e.g., FileMaker Pro or
Microsoft Access files).
Because of the substantial number of conventional electronic
documents that public entities make available on their websites and
mobile apps, and because of the difficulty of remediating some complex
types of information and data to make them accessible after-the-fact,
the Department believes public entities should generally focus their
personnel and financial resources on developing new conventional
electronic documents that are accessible and remediating existing
conventional electronic documents that are currently used by members of
the public to access the public entity's services, programs, or
activities. For example, if before the date a public entity is required
to comply with this rule, the entity's website contains a series of
out-of-date PDF reports on local COVID-19 statistics, those reports
generally need not comply with WCAG 2.1. Similarly, if a public entity
maintains decades' worth of water quality reports in conventional
electronic documents on the same web page as its current water quality
report, the old reports that were posted before the date the entity was
required to comply with this rule generally do not need to comply with
WCAG 2.1. As the public entity posts new reports going forward,
however, those reports must comply with WCAG 2.1. This approach is
expected to reduce the burdens on public entities.
This exception is subject to a limitation: the exception does not
apply to any preexisting documents that are currently used by members
of the public to apply for, access, or participate in the public
entity's services, programs, or activities. In referencing ``documents
that are currently used,'' the Department intends to cover documents
that are used by members of the public at any given point in the
future, not just at the moment in time when this rule is published.
This limitation includes documents that provide instructions or
guidance. For example, a public entity must not only make an
application for a business license accessible, but it must also make
accessible other materials that may be needed to obtain the license,
complete the application, understand the process, or otherwise take
part in the program, such as business license application instructions,
manuals, sample knowledge tests, and guides, such as ``Questions and
Answers'' documents.
The Department notes that a public entity may not rely on this
``preexisting conventional electronic documents'' exception to
circumvent its accessibility obligations by, for example, converting
all of its web content to conventional electronic document formats and
posting those documents before the date the entity must comply with
this rule. As noted above, any documents that are currently used by
members of the public to access the public entity's services, programs,
or activities would need to be accessible as defined under this rule,
even if those documents were posted before the date the entity was
required to comply with the rule. And if an entity updates a
conventional electronic document after the date the entity must
[[Page 51968]]
comply with this rule, that document would no longer qualify as
``preexisting,'' and would thus need to be made accessible as defined
under this rule.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 18: Where do public entities make conventional electronic
documents available to the public? Do public entities post conventional
electronic documents anywhere else on the web besides their own
websites?
Question 19: Would this ``preexisting conventional electronic
documents'' exception reach content that is not already excepted under
the proposed archived web content exception? If so, what kinds of
additional content would it reach?
Question 20: What would the impact of this exception be on people
with disabilities? Are there alternatives to this exception that the
Department should consider, or additional limitations that should be
placed on this exception? How would foreseeable advances in technology
affect the need for this exception?
Third-Party Web Content
Public entities' websites can include or link to many different
types of third-party content (i.e., content that is created by someone
other than the public entity), some of which is posted by or on behalf
of public entities and some of which is not. For example, many public
entities' websites contain third-party web content like maps,
calendars, weather forecasts, news feeds, scheduling tools,
reservations systems, or payment systems. Third-party web content may
also be posted by members of the public on a public entity's online
message board or other sections of the public entity's website that
allow public comment. In addition to third-party content that is posted
on the public entity's own website, public entities frequently provide
links to third-party content (i.e., links on the public entity's
website to content that has been posted on another website that does
not belong to the public entity), including links to outside resources
and information.
The Department has heard a variety of views regarding whether or
not public entities should be responsible for ensuring that third-party
content on their websites and linked third-party content are
accessible. Some maintain that public entities cannot be held
accountable for third-party content on their websites, and without such
an exception, public entities may have to remove the content
altogether. Others have suggested that public entities should not be
responsible for third-party content and linked content unless that
content is necessary for individuals to access public entities'
services, programs, or activities. The Department has also previously
heard the view, however, that public entities should be responsible for
third-party content because an entity's reliance on inaccessible third-
party content can prevent people with disabilities from having equal
access to the public entity's own services, programs, and activities.
Furthermore, boundaries between web content generated by a public
entity and by a third party are often difficult to discern.
At this time, the Department is proposing the following two limited
exceptions related to third-party content in Sec. Sec. 35.201(c)-(d)
and is posing questions for public comment.
Section 35.201(c): Web Content Posted by a Third Party on a Public
Entity's Website
Proposed Sec. 35.201(c) provides an exception to the web
accessibility requirements of proposed Sec. 35.200 for ``web content
posted by a third party that is available on a public entity's
website.''
The Department is proposing this exception in recognition of the
fact that individuals other than a public entity's agents sometimes
post content on a public entity's website. For example, members of the
public may sometimes post on a public entity's online message boards,
wikis, social media, or other web forums, many of which are
unregulated, interactive spaces designed to promote the sharing of
information and ideas. Members of the public may post frequently, at
all hours of the day or night, and a public entity may have little or
no control over the content posted. In some cases, a public entity's
website may include posts from third parties dating back many years,
which are likely of limited, if any, relevance today. Because public
entities often lack control over this third-party content, it may be
challenging (or impossible) for them to make it accessible. Moreover,
because this third-party content may be outdated or unrelated to a
public entity's services, programs, and activities, there may be only
limited benefit to requiring public entities to make this content
accessible. Accordingly, the Department believes it is appropriate to
create an exception for this content. However, while this exception
applies to web content posted by third parties, it does not apply to
the tools or platforms used to post third-party content on a public
entity's website such as message boards--these tools and platforms are
subject to the rule's technical standard.
This exception applies to, among other third-party content,
documents filed by third parties in administrative, judicial, and other
legal proceedings that are available on a public entity's website. This
example helps to illustrate why the Department believes this exception
is necessary. Many public entities have either implemented or are
developing an automated process for electronic filing of documents in
administrative, judicial, or legal proceedings in order to improve
efficiency in the collection and management of these documents. Courts
and other public entities receive high volumes of filings in these
sorts of proceedings each year. The majority of these documents are
submitted by third parties--such as a private attorney in a legal case
or other members of the public--and often include appendices, exhibits,
or other similar supplementary materials that may be difficult to make
accessible.
However, the Department notes that public entities have existing
obligations under title II of the ADA to ensure the accessibility of
their services, programs, and activities.\116\ Accordingly, for
example, if a person with a disability is a party to a case and
requests access to inaccessible filings submitted by a third party in a
judicial proceeding that are available on a State court's website, the
court may need to timely provide those filings in an accessible format.
Similarly, public entities may need to provide reasonable modifications
to ensure that people with disabilities have access to the entities'
services, programs, and activities. For example, if a hearing had been
scheduled in the proceeding referenced above, the court might need to
postpone the hearing if it did not provide the filings in an accessible
format to the requestor in sufficient time for the requestor to review
the documents before the scheduled hearing.
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\116\ 28 CFR 35.130, 35.160.
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Sometimes a public entity itself chooses to post content created by
a third party on its website. This exception does not apply to content
posted by the public entity itself, even if the content was originally
created by a third party. For example, many public entities post third-
party content on their websites, such as calendars, scheduling tools,
maps, reservations systems, and payment systems that were developed
[[Page 51969]]
by an outside technology company. To the extent a public entity chooses
to rely on third-party content on its website, it must select third-
party content that meets the requirements of proposed Sec. 35.200.
Moreover, a public entity may not delegate away its obligations
under the ADA.\117\ Accordingly, if a public entity relies on a
contractor or another third party to post content on the entity's
behalf, the public entity retains responsibility for ensuring the
accessibility of that content. For example, if a public housing
authority relies on a third-party contractor to collect applications
for placement on a waitlist for housing, the public housing authority
must ensure that this content is accessible.
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\117\ See 28 CFR 35.130(b)(1) (prohibiting discrimination
through a contractual, licensing, or other arrangement that would
provide an aid, benefit, or service to a qualified individual with a
disability that is not equal to that afforded others).
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Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 21: What types of third-party web content can be found on
websites of public entities and, how would foreseeable advances in
technology affect the need for creating an exception for this content?
To what extent is this content posted by the public entities
themselves, as opposed to third parties? To what extent do public
entities delegate to third parties to post on their behalf? What degree
of control do public entities have over content posted by third
parties, and what steps can public entities take to make sure this
content is accessible?
Question 22: What would the impact of this exception be on people
with disabilities?
Section 35.201(d): Third-Party Content Linked From a Public Entity's
Website
Proposed Sec. 35.201(d) provides that a public entity is not
responsible for the accessibility of third-party web content linked
from the public entity's website ``unless the public entity uses the
third-party web content to allow members of the public to participate
in or benefit from the public entity's services, programs, or
activities.'' Many public entities' websites include links to other
websites that contain information or resources in the community offered
by third parties that are not affiliated with the public entity.
Clicking on one of these links will take an individual away from the
public entity's website to the website of a third party. Typically, the
public entity has no control over or responsibility for a third party's
web content or the operation of the third party's website. Accordingly,
the public entity has no obligation to make the content on a third
party's website accessible. For example, if for purely informational or
reference purposes, a public university posts a series of links to
restaurants and tourist attractions that members of the public may wish
to visit in the surrounding area, the public entity is not responsible
for ensuring the websites of those restaurants and tourist attractions
are accessible.
Proposed Sec. 35.201(d) generally allows public entities to
provide relevant links to third-party web content that may be helpful
without making them responsible for the third party's web content.
However, the Department's title II regulation prohibits discrimination
in the provision of any aid, benefit, or service provided by public
entities directly or through contractual, licensing, or other
arrangements.\118\ Therefore, if the public entity uses the linked
third-party web content to allow members of the public to participate
in or benefit from the public entity's services, programs, or
activities, then the public entity must ensure it only links to third-
party web content that complies with the web accessibility requirements
of proposed Sec. 35.200. This approach is consistent with public
entities' obligation to make all of their services, programs, or
activities accessible to the public, including those it provides
through third parties.\119\ For example, a public entity that links to
online payment processing websites offered by third parties to accept
the payment of fees, parking tickets, or taxes must ensure that the
third-party web content it links to in order for members of the public
to pay for the public entity's services, programs, or activities
complies with the web accessibility requirements of proposed Sec.
35.200. In other words, if a public entity links to a website for a
third-party payment service that the entity allows the public to use to
pay taxes, the public entity would be using that third-party web
content to allow members of the public to participate in its tax
program, and the linked third-party web content would need to comply
with this rule. Otherwise, the public entity's tax program would not be
equally accessible to people with disabilities. Similarly, if a public
entity links to a third-party website that processes applications for
benefits or requests to sign up for classes or programs the public
entity offers, the public entity is using the third party's linked web
content to allow members of the public to participate in the public
entity's services, programs, or activities, and the public entity must
thus ensure that it links to only third-party web content that complies
with the requirements of proposed Sec. 35.200.
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\118\ 28 CFR 35.130(b)(1).
\119\ See 28 CFR 35.130(b)(1)(ii) (prohibiting discrimination
through a contractual, licensing, or other arrangement that would
provide an aid, benefit, or service to a qualified individual with a
disability that is not equal to that afforded others).
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The Department believes this approach strikes the appropriate
balance between acknowledging that public entities may not have the
ability to make third parties' web content accessible and recognizing
that public entities do have the ability to choose to use only third-
party content that is accessible when that content is used to allow
members of the public to participate in or benefit from the public
entity's services, programs, or activities.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 23: Do public entities link to third-party web content to
allow members of the public to participate in or benefit from the
entities' services, programs, or activities? If so, to what extent does
the third-party web content that public entities use for that purpose
comply with WCAG 2.1 Level AA?
Question 24: What would the impact of this exception be on people
with disabilities and how would foreseeable advances in technology
affect the need for this exception?
External Mobile Apps
Many public entities use mobile apps that are developed, owned, and
operated by third parties, such as private companies, to allow the
public to access the entity's services, programs, or activities. We
will refer to these mobile apps as ``external mobile apps.'' \120\ One
example of an external mobile app is the ``ParkMobile'' app, a private
company's app that some cities direct the public to in order to pay for
[[Page 51970]]
parking in the city.\121\ In addition, members of the public use mobile
apps that are operated by private companies, like the ``SeeClickFix''
app, to submit non-emergency service requests such as fixing a pothole
or a streetlight.\122\
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\120\ In this document, we refer to web content that is created
by someone other than a public entity as ``third-party web
content.'' We note that we do not use ``third-party'' to describe
mobile apps here to avoid confusion. It is our understanding that
the term ``third-party mobile app'' appears to have a different
meaning in the technology industry and some understand ``a third-
party app'' as an application that is provided by a vendor other
than the manufacturer of the device or operating system provider.
See Alice Musyoka, Third-Party Apps, Webopedia (Aug. 4, 2022),
https://www.webopedia.com/definitions/third-party-apps/ [https://perma.cc/SBW3-RRGN].
\121\ See ParkMobile Parking App, https://parkmobile.io [https://perma.cc/G7GY-MDFE].
\122\ See Using Mobile Apps in Government, IBM Ctr. for the Bus.
of Gov't, at 32-33 (2015), https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf
[https://perma.cc/248X-8A6C].
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At this time, the Department is not proposing to create an
exception for public entities' use of external mobile apps (e.g.,
mobile apps operated by a third party) from proposed Sec. 35.200. We
expect that public entities are using external mobile apps mostly to
offer the entities' services, programs, and activities, such that
creating an exception for these apps would not be appropriate.
Accordingly, the Department is seeking comment and additional
information on external mobile apps that public entities use to offer
their services, programs, and activities. Please provide as much detail
as possible and any applicable data, suggested alternative approaches
or requirements, arguments, explanations, and examples in your
responses to the following questions.
Question 25: What types of external mobile apps, if any, do public
entities use to offer their services, programs, and activities to
members of the public, and how accessible are these apps? While the
Department has not proposed an exception to the requirements proposed
in Sec. 35.200 for public entities' use of external mobile apps,
should the Department propose such an exception? If so, should this
exception expire after a certain time, and how would this exception
impact persons with disabilities?
Password-Protected Class or Course Content of Public Educational
Institutions
Proposed Sec. 35.201(e) and (f) provide exceptions for public
educational institutions' password-protected class or course content
where there is no student with a disability enrolled in the class or
course (or, in the elementary and secondary school context, where there
is no student enrolled in the class or course who has a parent with a
disability) who needs the password-protected content to be made
accessible.
Public educational institutions, like many other public
institutions, use their websites to provide a variety of services,
programs, and activities to members of the public. Many of the
services, programs, and activities on these websites are available to
anyone. The content on these websites can include such general
information as the academic calendar, enrollment process, admission
requirements, school lunch menus, school policies and procedures, and
contact information. Under the proposed regulation, all such services,
programs, or activities available to the public on the websites of
public educational institutions must comply with the requirements of
proposed Sec. 35.200 unless the content is subject to a proposed
exception.
In addition to the information available to the general public on
the websites of public educational institutions, the websites of many
schools, colleges, and universities also make certain services,
programs, and activities available to a discrete and targeted audience
of individuals (e.g., students taking particular classes or courses or,
in the elementary or secondary school context, parents of students
enrolled in particular classes or courses). This information is often
provided using a Learning Management System (``LMS'') or similar
platform that can provide secure online access and allow the exchange
of educational and administrative information in real time. LMSs allow
public educational institutions and their faculty and staff to exchange
and share information with students and parents about classes or
courses and students' progress. For example, faculty and staff can
create and collect assignments, post grades, provide real-time
feedback, and share subject-specific media, documents, and other
resources to supplement and enrich the curriculum. Parents can track
their children's attendance, assignments, grades, and upcoming class
events. To access the information available on these platforms,
students (and parents in the elementary and secondary school context)
generally must obtain a password, login credentials, or some equivalent
from the educational institution. The discrete population that has
access to this content may not always include a person with a
disability. For example, a student who is blind may not have enrolled
in a psychology course, or a parent who is deaf may not have a child
enrolled in a particular ninth-grade world history class.
The Department's regulatory proposal would require that the LMS
platforms that public elementary and secondary schools, colleges, and
universities use comply with proposed Sec. 35.200. However, subject to
limitations, the Department is proposing an exception for password-
protected class or course content. Thus, while the LMS platform would
need to be accessible, class or course content (such as syllabi and
assigned readings) posted on the password-protected LMS platform would
not need to be, except in specified circumstances. Specifically, the
content available on password-protected websites for specific classes
or courses would generally be excepted from the requirements of
proposed Sec. 35.200 unless a student is enrolled in that particular
class or course and the student (or the parent \123\ in the elementary
and secondary school context) would be unable, because of a disability,
to access the content posted on the password-protected website for that
class or course. Thus, once a student with a disability (or a student
in an elementary or secondary school with a parent with a disability)
is enrolled in a particular class or course, the content available on
the password-protected website for the specific class or course would
need to be made accessible in accordance with certain compliance dates
discussed below. This may include scenarios in which a student with a
disability (or, in the elementary and secondary school context, a
student whose parent has a disability) preregisters, enrolls, or
transfers into a class or course or acquires a disability during the
term, or when a school otherwise identifies a student in a class or
course (or their parent in the elementary and secondary school context)
as having a disability. The educational institution would generally be
required to make the course content for that class or course fully
compliant with all WCAG 2.1 Level AA success criteria, not merely the
criteria related to that student or parent's disability. This will
ensure that course content becomes more accessible to all students over
time. In addition, the Department expects that it will be more
straightforward for public entities to comply with WCAG 2.1 Level AA as
a whole, rather than attempting to identify and isolate the WCAG 2.1
success criteria that relate to a specific student, and then repeating
that process for a subsequent student with a different disability.
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\123\ The Department notes that the term ``parent'' as used
throughout proposed Sec. 35.201(f) is intended to include
biological, adoptive, step-, or foster parents; legal guardians; or
other individuals recognized under Federal or State law as having
parental rights.
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The Department proposes this exception for class and course content
based on its understanding that it would be burdensome to require
public educational institutions to make
[[Page 51971]]
accessible all of the documents, videos, and other content that many
instructors upload and assign via LMS websites. For instance,
instructors may scan hard-copy documents and then upload them to LMS
sites as conventional electronic documents. In some instances, these
documents comprise multiple chapters from books and may be hundreds of
pages long. Similarly, instructors may upload videos or other
multimedia content for students to review. The Department believes that
making all of this content accessible when students with disabilities
(or their parents in the elementary and secondary context) are not
enrolled in the class or course may be onerous for public educational
institutions, but the Department also understands that it is critical
for students and parents with disabilities to have access to needed
course content.
The Department believes its proposal provides a balanced approach
by ensuring access to students with disabilities (or, in elementary and
secondary school settings, parents with disabilities) enrolled in the
educational institution, while recognizing that there are large amounts
of class or course content that may not immediately need to be accessed
by individuals with disabilities because they have not enrolled in a
particular class or course.
By way of analogy and as an example, under the Department's
existing title II regulations, public educational institutions are not
required to proactively provide accessible course handouts to all
students in a course, but they are required to do so for a student with
a disability who needs them to access the course content. The
Department envisions the requirements proposed here as an online
analogue: while public educational institutions are not required to
proactively make all password-protected course handouts accessible, for
example, once an institution knows that a student with a disability is
enrolled in a course and, accordingly, needs the content to be made
accessible, the institution must do so. The institution must also
comply with its obligations to provide accessible course content under
all other applicable laws, including the IDEA.
The Department appreciates that some public educational
institutions may find it preferable or more effective to make all class
or course content accessible from the outset without waiting for a
student with a disability (or, in the elementary and secondary school
context, a student with a parent with a disability) to enroll in a
particular class or course, and nothing in this rule would prevent
public educational institutions from taking that approach. Even if
public educational institutions do not take this approach, the
Department expects that those institutions will likely need to take
steps in advance so that they are prepared to make all class or course
content for a particular course accessible within the required
timeframes discussed below when there is an enrolled student with a
disability (or, in the elementary and secondary school context, an
enrolled student with a parent with a disability) who needs access to
that content.
Because the nature, operation, and structure of public elementary
and secondary schools are different from those of public colleges and
universities, the proposed regulation sets forth separate requirements
for the two types of institutions.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following question.
Question 26: Are there particular issues relating to the
accessibility of digital books and textbooks that the Department should
consider in finalizing this rule? Are there particular issues that the
Department should consider regarding the impact of this rule on
libraries?
Public Postsecondary Institutions: Password-Protected Web Content
In proposed Sec. 35.201(e), the Department is considering an
exception to the requirements proposed in Sec. 35.200 for public
postsecondary institutions, subject to two limitations. This exception
would provide that ``course content available on a public entity's
password-protected or otherwise secured website for admitted students
enrolled in a specific course offered by a public postsecondary
institution'' would not need to comply with the web accessibility
requirements of proposed Sec. 35.200 unless one of the two limitations
described below applies. As used in this context, ``admitted students''
refers to students who have applied to, been accepted by, and are
enrolled in a particular educational institution. These students
include both matriculated students (i.e., students seeking a degree)
and non-matriculated students (i.e., continuing education students or
non-degree-seeking students). As noted above, this exception applies
only to password-protected or otherwise secured content. Content may be
otherwise secured if it requires some process of authentication or
login to access the content.
The exception is not intended to apply to password-protected
content for classes or courses that are made available to the general
public, or a subset thereof, without enrolling at a particular
educational institution. Such classes or courses generally only require
limited, if any, registration to participate. These types of classes or
courses may sometimes be referred to as Massive Open Online Courses, or
MOOCs. Because access to the content on these password-protected
websites is not limited to a discrete student population within an
educational institution but is instead widely available to the general
public--sometimes without limits as to enrollment--any individual,
including one with a disability, may enroll or participate at almost
any time. Under these circumstances, the public entity must make such
class or course content accessible from the outset of the class or
course regardless of whether a student with a disability is known to be
participating. The Department is interested in the public's feedback on
this exception, and in particular the impact it may have on public
institutions' continued use of MOOCs.
The phrase ``enrolled in a specific course'' as used in proposed
Sec. 35.201(e) limits the exception to password-protected course
content for a particular course, at a particular time, during a
particular term. For example, if a university offers a 20th-Century
Irish Literature course at 10 a.m. that meets on Mondays, Wednesdays,
and Fridays for the fall semester of the 2029-2030 academic year, the
exception would apply to the password-protected course content for that
course, subject to the limitations discussed below.
The proposed exception in Sec. 35.201(e) would not apply to non-
course content on the public entity's password-protected website that
is generally available to all admitted students. For example, forms for
registering for class, applications for meal plans or housing, academic
calendars, and announcements generally made available to all students
enrolled in the postsecondary institution would all be required to
comply with proposed Sec. 35.200. In addition, if a public
postsecondary institution made course content for specific courses
available to all admitted students on a password-protected website,
regardless of whether students had enrolled in that specific course,
the exception would not apply, even if such content was only made
available for a limited time, such as within a set time frame for
course shopping.
[[Page 51972]]
Sections 35.201(e)(1)-(2): Limitations to the Exception for Password-
Protected Course Content for Specific Courses
As noted previously, there are two important limitations to the
general exception for course content on password-protected websites of
postsecondary institutions in proposed Sec. 35.201(e); both
limitations apply to situations in which an admitted student with a
disability is enrolled in a particular course at a postsecondary
institution and the student, because of a disability, would be unable
to access the content on the password-protected website for the
specific course. The phrase ``the student, because of a disability,
would be unable to access'' is meant to make clear that these
limitations are not triggered merely by the enrollment of a student
with a disability, but instead they are triggered by the enrollment of
a student whose disability would make them unable to access the content
on the password-protected course website. These limitations would also
be triggered by the development or identification of such a disability
while a student is enrolled, or the realization that a student's
disability makes them unable to access the course content during the
time that they are enrolled. The phrase ``unable to access'' does not
necessarily mean a student has no access at all. Instead, the phrase
``unable to access'' is intended to cover situations in which a
student's disability would limit or prevent their ability to equally
access the relevant content.
The provisions set forth in the limitations to the exception are
consistent with longstanding obligations of public entities under title
II of the ADA. Public entities are already required to make appropriate
reasonable modifications and ensure effective communication, including
by providing the necessary auxiliary aids and services to students with
disabilities, under the current title II regulation. It is the public
educational institution, not the student, that is responsible for
ensuring that it is meeting these obligations. Such institutions,
therefore, should be proactive in addressing the access needs of
admitted students with disabilities, including those who would be
unable to access inaccessible course content on the web. This also
means that when an institution knows that a student with a disability
is unable to access inaccessible content, the institution should not
expect or require that the student first attempt to access the
information and be unable to do so before the institution's obligation
to make the content accessible arises.
Correspondingly, when an institution has notice that such a student
is enrolled in a course, all of the content available on the password-
protected website for that course must be made accessible in compliance
with the accessibility requirements of proposed Sec. 35.200. The
difference between the two limitations to the exception to proposed
Sec. 35.201(e) is the date that triggers compliance. The triggering
event is based on when the institution knew, or should have known, that
such a student with a disability would be enrolled in a specific course
and would be unable to access the content available on the password-
protected website.
The application of the limitation in proposed Sec. 35.201(e)(1)
and (e)(2), discussed in detail below, is contingent upon the
institution having notice both that a student with a disability is
enrolled in a specific course and that the student cannot access the
course content because of their disability. Once an institution is on
notice that a student with a disability is enrolled in a specific
course and that the student's disability would render the student
unable to access the content available on the password-protected
website for the specific course, the password-protected course content
for that course must be made accessible within the time frames set
forth in proposed Sec. 35.201(e)(1) and (e)(2), which are described in
greater detail below.
The first proposed limitation to the exception for postsecondary
institutions, proposed Sec. 35.201(e)(1), would require that ``if a
public entity is on notice that an admitted student with a disability
is pre-registered in a specific course offered by a public
postsecondary institution and that the student, because of a
disability, would be unable to access the content available on the
public entity's password-protected or otherwise secured website for the
specific course,'' then ``all content available on the public entity's
password-protected or otherwise secured website for the specific course
must comply with the requirements of Sec. 35.200 by the date the
academic term begins for that course offering. New content added
throughout the term for the course must also comply with the
requirements of Sec. 35.200 at the time it is added to the website.''
Students may register for classes and make accessibility requests ahead
of the start of the term--often during the previous term. The
institution therefore knows, or should know, that a student with a
disability has registered for a particular course or notified the
school that content must be made accessible for a particular course.
This provision would ensure that students with disabilities have timely
access to and equal opportunity to benefit from content available on a
password-protected website for their particular courses.
The second proposed limitation to the exception for postsecondary
institutions, proposed Sec. 35.201(e)(2), applies to situations in
which ``a public entity is on notice that an admitted student with a
disability is enrolled in a specific course offered by a public
postsecondary institution after the start of the academic term, and
that the student, because of a disability, would be unable to access
the content available on the public entity's password-protected or
otherwise secured website for the specific course.'' In this instance,
unlike proposed Sec. 35.201(e)(1), the postsecondary institution is
not on notice until after the start of the academic term that a student
is enrolled in a particular course and that the student, because of a
disability, would be unable to access the content on the password-
protected course website. In such circumstances, all content available
on the public entity's password-protected website for the specific
course must comply with the requirements of proposed Sec. 35.200
within five business days of such notice. This second limitation would
apply to situations in which students have not pre-registered in a
class, such as when students enroll in a class during the add/drop
period, or where waitlisted or transfer students enroll in a class at
the start of, or during, the academic term. This second limitation to
the exception for postsecondary institutions would also apply to
situations in which the institution was not on notice that the enrolled
student had a disability and would be unable to access online course
content until after the academic term began--because, for example, the
student newly enrolled at the institution or was recently diagnosed
with a disability.
In proposing the five-day remediation requirement in this
limitation, the Department is attempting to strike the appropriate
balance between providing postsecondary institutions with a reasonable
opportunity to make the content on the password-protected or otherwise
secured website accessible and providing individuals with disabilities
full and timely access to this information that has been made available
to all other students in the course. The Department believes five days
provides a reasonable opportunity to make the relevant content
accessible in most cases, subject to the general limitations under
proposed Sec. 35.204, entitled ``Duties.'' However, the
[[Page 51973]]
Department is interested in the public's feedback and data on whether
this remediation requirement provides a reasonable opportunity to make
the relevant content accessible, and whether a shorter or longer period
would be more appropriate in most cases.
If, for example, a public college offers a specific fall semester
course, a student with a disability pre-registers for it and, because
of disability, that student would be unable to access the content
available on the password-protected website for that course, all
content available on the institution's password-protected website for
that specific course must comply with the requirements of proposed
Sec. 35.200 by the date the academic semester begins for the fall
semester (according to the first limitation). If, instead, that same
student does not enroll in that particular course until two days after
the start of the fall semester, all content available on the
institution's password-protected or otherwise secured website for that
specific course must comply with the requirements of proposed Sec.
35.200 within five business days of notice that a student with a
disability is enrolled in that particular course and, because of
disability, would be unable to access the content (according to the
second limitation).
The exception applies to course content such as conventional
electronic documents, multimedia content, or other course material
``available'' on a public entity's password-protected or otherwise
secured website. As such, the two limitations apply when that content
is made ``available'' to students with disabilities enrolled in a
specific course who are unable to access course content. Although a
professor may load all of their course content on the password-
protected website at one time, they may also stagger the release of
particular content to their students at various points in time during
the term. It is when this content is made available to students that it
must be made accessible in compliance with proposed Sec. 35.200.
The two limitations to the exception for password-protected course
content state that the limitations apply whenever ``the student,
because of a disability, would be unable to access the content
available on the public entity's password-protected website for the
specific course.'' Pursuant to longstanding obligations of public
entities under title II of the ADA, the public postsecondary
institution must continue to take other steps necessary to timely make
inaccessible course content accessible to an admitted student with a
disability during the five-day period proposed in the second
limitation, unless doing so would result in a fundamental alteration or
undue financial and administrative burden. This could include timely
providing alternative formats, a reader, or a notetaker for the student
with a disability, or providing other auxiliary aids and services that
enable the student with a disability to participate in and benefit from
the services, programs, and activities of the public entity while the
public entity is making the course content on the password-protected
website accessible.
Once the obligation is triggered to make password-protected course
content accessible for a specific course, the obligation is ongoing for
the duration of the course (i.e., the obligation is not limited to
course content available at the beginning of the term). Rather, all web
content newly added throughout the remainder of the student's
enrollment in the course must also be accessible at the time it is made
available to students. Furthermore, once a public postsecondary
institution makes conventional electronic documents, multimedia
content, or other course material accessible in accordance with the
requirements of proposed Sec. 35.201(e)(1) or (e)(2), the institution
must maintain the accessibility of that specific content as long as
that content is available to students on the password-protected course
website, in compliance with the general accessibility requirement set
forth in proposed Sec. 35.200. However, new content added later, when
there is no longer a student with a disability who is unable to access
inaccessible web content enrolled in that specific course, would not
need to be made accessible because that course-specific web content
would once again be subject to the exception, unless and until another
student with a disability is enrolled in that course.
With regard to third-party content linked to from a password-
protected or otherwise secured website for a specific course, the
exception and limitations set forth in proposed Sec. 35.201(d) apply
to this content, even when a limitation under proposed Sec.
35.201(e)(1) or (e)(2) has been triggered requiring all the content
available to students on a password-protected website for a specific
course to be accessible. Accordingly, third-party web content to which
a public entity provides links for informational or resource purposes
is not required to be accessible; however, if the postsecondary
institution uses the third-party web content to allow members of the
public to participate in or benefit from the institution's services,
programs, or activities, then the postsecondary institution must ensure
it links to third-party web content that complies with the web
accessibility requirements of proposed Sec. 35.200. For example, if a
postsecondary institution requires students to use a third-party
website it links to on its password-protected course website to
complete coursework, then the third-party web content must be
accessible.
The Department believes that this approach strikes a proper balance
of providing necessary and timely access to course content, while not
imposing burdens where web content is currently only utilized by a
population of students without relevant disabilities, but it welcomes
public feedback on whether alternative approaches might strike a more
appropriate balance.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 27: How difficult would it be for public postsecondary
institutions to comply with this rule in the absence of this exception?
Question 28: What would the impact of this exception be on people
with disabilities?
Question 29: How do public postsecondary institutions communicate
general information and course-specific information to their students?
Question 30: Do public postsecondary institutions commonly provide
parents access to password-protected course content?
Question 31: The proposed exception and its limitations are
confined to content on a password-protected or otherwise secured
website for students enrolled in a specific course. Do public
postsecondary institutions combine and make available content for
particular groups of students (e.g., newly admitted students or
graduating seniors) using a single password-protected website and, if
so, should such content be included in the exception?
Question 32: On average, how much content and what type of content
do password-protected course websites of postsecondary institutions
contain? Is there content posted by students or parents? Should content
posted by students or parents be required to be accessible and, if so,
how long would it take a public postsecondary institution to make it
accessible?
Question 33: How long would it take to make course content
available on a public entity's password-protected or otherwise secured
website for a particular course accessible, and does this vary based on
the type of course? Do students need access to course
[[Page 51974]]
content before the first day of class? How much delay in accessing
online course content can a student reasonably overcome in order to
have an equal opportunity to succeed in a course, and does the answer
change depending on the point in the academic term that the delay
occurs?
Question 34: To what extent do public postsecondary institutions
use or offer students mobile apps to enable access to password-
protected course content? Should the Department apply the same
exceptions and limitations to the exceptions under proposed Sec.
35.201(e) and (e)(1)-(2), respectively, to mobile apps?
Question 35: Should the Department consider an alternative
approach, such as requiring that all newly posted course content be
made accessible on an expedited time frame, while adopting a later
compliance date for remediating existing content?
Public Elementary and Secondary Schools: Password-Protected Web Content
In proposed Sec. 35.201(f), the Department is considering an
exception to the requirements proposed in Sec. 35.200 for public
elementary and secondary schools that would provide, subject to four
limitations, that ``class or course content available on a public
entity's password-protected or otherwise secured website for students
enrolled, or parents of students enrolled, in a specific class or
course at a public elementary or secondary school'' would not need to
comply with the web accessibility requirements of proposed Sec.
35.200.
Because parents of students in elementary and secondary schools
have greater rights, roles, and responsibilities with regard to their
children and their children's education than in the postsecondary
education setting, and because these parents typically interact with
such schools much more often and in much greater depth and detail,
parents are expressly included in both the general exception for
password-protected web content in proposed Sec. 35.201(f) and its
limitations.\124\ Parents use password-protected websites to access
progress reports and grades, track homework and long-term project
assignments, and interact regularly with their children's teachers and
administrators.
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\124\ The Department notes that the term ``parent'' as used
throughout proposed Sec. 35.201(f) is intended to include
biological, adoptive, step-, or foster parents; legal guardians; or
other individuals recognized under Federal or State law as having
parental rights.
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Proposed exception Sec. 35.201(f) provides that ``class or course
content available on a public entity's password-protected or otherwise
secured website for students enrolled, or parents of students enrolled,
in a specific class or course offered by a public elementary or
secondary school'' does not need to comply with the accessibility
requirements of proposed Sec. 35.200 unless and until a student is
enrolled in that particular class or course and either the student or
the parent would be unable, because of a disability, to access the
content available on the password-protected website. As used in this
context, ``enrolled . . . in a specific class or course'' limits the
exception to password-protected class or course content for a
particular class or course during a particular academic term. For
example, content on a password-protected website for students, and
parents of students, in a specific fifth-grade class would not need to
be made accessible unless a student enrolled, or the parent of a
student enrolled, in the class that term would be unable, because of a
disability, to access the content on the password-protected website.
The proposed exception in Sec. 35.201(f) is not intended to apply
to password-protected content that is available to all students or
their parents in a public elementary or secondary school. Content on
password-protected websites that is not limited to students enrolled,
or parents of students enrolled, in a specific class or course, but
instead is available to all students or their parents at the public
elementary or secondary school is not subject to the exception. For
example, a school calendar available on a password-protected website to
which all students or parents at a particular elementary school are
given a password would not be subject to the exception for password-
protected web content for a specific class or course. It would,
therefore, need to comply with the requirements of proposed Sec.
35.200.
Sections 35.201(f)(1)-(4): Limitations to the Exception for Password-
Protected Class or Course Content
There are four critical limitations to the general exception in
proposed Sec. 35.201(f) for public elementary and secondary schools'
class or course content. These limitations are identical to those
discussed above in the postsecondary context, except that they arise
not only when a school is on notice that a student with a disability is
enrolled in a particular class or course and cannot access content on
the class or course's password-protected website because of their
disability, but also when the same situation arises for a parent with a
disability. The discussion above of the limitations in the
postsecondary context applies with equal force here, and a shorter
discussion of the limitations in the elementary and secondary context
follows. However, the Department acknowledges that there are existing
legal frameworks specific to the public elementary and secondary
education context which are described further in this section.
The first limitation, in proposed Sec. 35.201(f)(1), addresses
situations in which the public entity is on notice before the beginning
of the academic term that a student with a disability is pre-registered
in a specific class or course offered by a public elementary or
secondary school, and the student, because of a disability, would be
unable to access the content available on the public entity's password-
protected or otherwise secured website for the specific class or
course. In such circumstances, all content available on the public
entity's password-protected website for the specific class or course
must comply with the requirements of proposed Sec. 35.200 by the date
the term begins for that class or course. New content added throughout
the term for the class or course must also comply with the requirements
of proposed Sec. 35.200 at the time it is added to the website.
Similarly, the second limitation, proposed Sec. 35.201(f)(2),
addresses situations in which the pre-registered student's parent has a
disability. Proposed Sec. 35.201(f)(2) applies when the public entity
is on notice that a student is pre-registered in a public elementary or
secondary school's class or course, and that the student's parent needs
the content to be accessible because of a disability that inhibits
access to the content available on the password-protected website for
the specific class or course. In such circumstances, all content
available on the public entity's password-protected website for the
specific class or course must comply with the requirements of proposed
Sec. 35.200 by the date the school term begins for that class or
course. New content added throughout the term for the class or course
must also comply with the requirements of proposed Sec. 35.200 at the
time it is added to the website.
The third and fourth limitations to the exception for class or
course content on password-protected websites for particular classes or
courses at elementary and secondary schools are similar to the first
and second limitations but have different triggering
[[Page 51975]]
events. These limitations apply to situations in which a student is
enrolled in a public elementary or secondary school's class or course
after the term begins, or when a school is otherwise not on notice
until after the term begins that there is a student or parent with a
disability who is unable to access class or course content because of
their disability. The third limitation, in proposed Sec. 35.201(f)(3),
would apply once a public entity is on notice that ``a student with a
disability is enrolled in a public elementary or secondary school's
class or course after the term begins and that the student, because of
a disability, would be unable to access the content available on the
public entity's password-protected or otherwise secured website for the
specific class or course.'' In such circumstances, all content
available on the public entity's password-protected or otherwise
secured website for the specific class or course must comply with the
requirements of proposed Sec. 35.200 within five business days of such
notice. New content added throughout the term for the class or course
must also comply with the requirements of proposed Sec. 35.200 at the
time it is added to the website.
Proposed Sec. 35.201(f)(4), the fourth limitation, applies the
same triggering event as in proposed Sec. 35.201(f)(3) to situations
in which the student's parent has a disability. Proposed Sec.
35.201(f)(4) would apply once a public entity is on notice that a
student is enrolled in a public elementary or secondary school's class
or course after the term begins, and that the student's parent needs
the content to be accessible because of a disability that would inhibit
access to the content available on the public entity's password-
protected website for the specific class or course. In such
circumstances, all content available on the public entity's password-
protected or otherwise secured website for the specific class or course
must comply with the requirements of proposed Sec. 35.200 within five
business days of such notice. New content added throughout the term for
the class or course must also comply with the requirements of proposed
Sec. 35.200 at the time it is added to the website.
The procedures for enrollment in the public elementary or secondary
school context likely vary from the postsecondary context. Unlike in
postsecondary institutions, public elementary and secondary schools
generally have more autonomy and authority regarding student placement
in a particular class or course. The student or parent generally does
not control placement in a particular class or course. To the extent a
parent or student has such autonomy or authority, the application of
the limitations in proposed Sec. 35.201(f)(1) through (f)(4) is
contingent on whether the public elementary or secondary school knows,
or should know, that a student with a disability is enrolled, or a
parent with a disability has a child enrolled, in a particular class or
course, and that the student or parent would be unable to access the
class or course content because of their disability.
Regardless of what process a school follows for notification of
enrollment, accessibility obligations for password-protected class or
course content come into effect once a school is on notice that
materials need to be made accessible under these provisions. For
example, some schools that allow students to self-select the class or
course in which they enroll may require students with disabilities to
notify their guidance counselor or the special education coordinator
each time they have enrolled in a class or course. With respect to
parents, some schools may have a form that parents fill out as part of
the process for enrolling a student in a school, or in a particular
class or course in that school, indicating that they (the parent) are
an individual with a disability who, because of their disability, needs
auxiliary aids or services. Other schools may publicize the schools'
responsibility to make class or course content accessible to parents
with disabilities and explain the process for informing the school that
they cannot access inaccessible websites. Under this rule, regardless
of the process a school follows, once the public elementary or
secondary school is on notice, the password-protected class or course
content for that class or course must be made accessible within the
time frames set forth in proposed Sec. 35.201(f)(1) through (f)(4). We
note that the ADA would prohibit limiting assignment of students with
disabilities only to classes for which the content has already been
made accessible.\125\
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\125\ See 28 CFR 35.130.
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The Department emphasizes that in the public elementary and
secondary school context a variety of Federal laws include robust
protections for students with disabilities, and this rule is intended
to build on, but not to supplant, those protections for students with
disabilities. Public schools that receive Federal financial assistance
already must ensure they comply with obligations under other statutes
such as the IDEA and section 504 of the Rehabilitation Act, including
the Department of Education's regulations implementing those statutes.
The IDEA and section 504 already include affirmative obligations that
covered public schools work to identify children with disabilities,
regardless of whether the schools receive notice from a parent that a
student has a disability, and provide a Free Appropriate Public
Education (FAPE).\126\ The Department acknowledges that educational
entities likely already employ procedures under those frameworks to
identify children with disabilities and assess their educational needs.
Under the IDEA and section 504, schools have obligations to identify
students with the relevant disabilities that would trigger the
limitations in proposed Sec. 35.201(f)(1) through (f)(4). The proposed
rule would add to and would not supplant the already robust framework
for identifying children with disabilities and making materials
accessible. The language used in the educational exceptions and their
limitations is not intended to replace or conflict with those existing
procedures. In other words, regardless of the means by which schools
identify students with the relevant disabilities here, including
procedures developed to comply with the IDEA and section 504
regulations, once a school is on notice that either the student or the
parent has a disability and requires access because of that disability,
the limitation is triggered. Further, schools should not alter their
existing practices to wait for notice because of this rule--this rule
does not modify existing requirements that schools must follow under
other statutes such as the IDEA and section 504.
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\126\ See 20 U.S.C. 1412; 34 CFR 104.32-104.33.
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Federal and State laws may have a process for students who are
newly enrolled in a school and those who are returning to have their
educational program or plan reviewed and revised annually. This
generally would include a determination of the special education,
related services, supplementary aids and services, program
modifications, and supports from school personnel that the student
needs, which under the ADA would be similar to the terms
``modifications'' and ``auxiliary aids and services.'' However, once
the school is on notice that the student has a disability and requires
access because of the disability, those processes and procedures cannot
be used to delay or avoid compliance with the time frames set forth in
proposed Sec. 35.201(f)(1) through (f)(4). For example, if a school
knows that a student who is blind is enrolled at the school for the
first time over the summer, the school is then on notice that, in
accordance with proposed
[[Page 51976]]
Sec. 35.201(f)(1), the content on the school's password-protected
website for the class or course to which the school assigns the student
must be accessible in compliance with the requirements of proposed
Sec. 35.200 by the date the term begins, regardless of the timeframes
for evaluation or the review or development of an Individualized
Education Program or section 504 Plan.
As in the postsecondary context, the Department believes that these
exceptions and limitations strike a proper balance of providing
necessary and timely access to class or course content, while not
imposing burdens where class or course content is currently only used
by a population of students and parents without relevant disabilities,
but it welcomes public feedback on whether alternative approaches might
strike a more appropriate balance.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 36: How difficult would it be for public elementary and
secondary schools to comply with this rule in the absence of this
exception?
Question 37: What would the impact of this exception be on people
with disabilities?
Question 38: How do elementary and secondary schools communicate
general information and class- or course-specific information to
students and parents?
Question 39: The proposed exception and its limitations are
confined to content on a password-protected or otherwise secured
website for students enrolled, or parents of students enrolled, in a
specific class or course. Do public elementary or secondary schools
combine and make available content for all students in a particular
grade or certain classes (e.g., all 10th-graders in a school taking
chemistry in the same semester) using a single password-protected
website and, if so, should such content be included in the exception?
Question 40: Do elementary and secondary schools have a system
allowing a parent with a disability to provide notice of their need for
accessible class or course content?
Question 41: On average, how much content and what type of content
do password-protected websites of public elementary or secondary school
courses contain? Is there content posted by students or parents? Should
content posted by students or parents be required to be accessible and,
if so, how long would it take a public elementary or secondary school
to make it accessible?
Question 42: How long would it take to make class or course content
available on a public entity's password-protected or otherwise secured
website for the particular class or course accessible, and does this
vary based on the type of course? Do parents and students need access
to class or course content before the first day of class? How much
delay in accessing online class or course content can a student
reasonably overcome in order to have an equal opportunity to succeed in
a course, and does the answer change depending on the point in the
academic term that the delay occurs?
Question 43: To what extent do public elementary or secondary
schools use or offer students or parents mobile apps to enable access
to password-protected class or course content? Should the Department
apply the same exceptions and limitations to the exceptions under
proposed Sec. 35.201(f) and (f)(1)-(4), respectively, to mobile apps?
Question 44: Should the Department consider an alternative
approach, such as requiring that all newly posted course content be
made accessible on an expedited timeframe, while adopting a later
compliance date for remediating existing content?
Individualized, Password-Protected Documents
In proposed Sec. 35.201(g), the Department is considering an
exception to the accessibility requirements of proposed Sec. 35.200
for web-based ``[c]onventional electronic documents that are: (1) about
a specific individual, their property, or their account; and (2)
password-protected or otherwise secured.''
Many public entities use the web to provide access to digital
versions of documents for their customers, constituents, and other
members of the public. For example, some public utility companies
provide a website where customers can log in and view a PDF version of
their latest bill. Similarly, many public hospitals offer a virtual
platform where healthcare providers can send digital versions of test
results and scanned documents to their patients. The Department
anticipates that a public entity could have many such documents. The
Department also anticipates that making conventional electronic
documents accessible in this context may be difficult for public
entities, and that in many instances, the individuals who are entitled
to view a particular individualized document will not need an
accessible version. However, some public entities might be able to make
some types of documents accessible relatively easily after they make
the template they use to generate these individualized documents
accessible. To help better understand whether these assumptions are
accurate, the Department asks questions for public comment below about
what kinds of individualized, conventional electronic documents public
entities make available, how public entities make these documents
available to individuals, and what experiences individuals have had in
accessing these documents.
This proposed exception is expected to reduce the burdens on public
entities. The Department expects that making such documents accessible
for every individual, regardless of whether they need such access,
could be too burdensome and would not deliver the same benefit to the
public as a whole as if the public entity were to focus on making other
types of web content accessible. The Department expects that it would
generally be more impactful for public entities to focus resources on
making documents accessible for those individuals who actually need the
documents to be accessible. It is the Department's understanding that
making conventional electronic documents accessible is generally a more
time- and resource- intensive process than making other types of web
content accessible. As discussed below, public entities must still
provide accessible versions of individualized, password-protected
conventional electronic documents in a timely manner when those
documents pertain to individuals with disabilities. This approach is
consistent with the broader title II regulatory framework. For example,
public utility companies are not required to provide accessible bills
to all customers. Instead, the companies need only provide accessible
bills to those customers who need them because of a disability.
This exception is limited to ``conventional electronic documents''
as defined in proposed Sec. 35.104. This exception would, therefore,
not apply in a case where a public entity makes individualized
information available in formats other than a conventional electronic
document. For example, if a public utility makes individualized bills
available on a password-protected web platform as HTML content (rather
than a PDF), that content would not be subject to this exception. Such
bills, therefore, would need to be made accessible in accordance with
proposed Sec. 35.200. On the other hand, if a public entity makes
individualized bills
[[Page 51977]]
available on a password-protected web platform in PDF form, that
content would be excepted from the accessibility requirements of
proposed Sec. 35.200, subject to the limitation discussed in further
detail below.
This exception also only applies when the content is individualized
for a specific person or their property or account. Examples of
individualized documents include medical records or notes about a
specific patient, receipts for purchases (like a parent's receipt for
signing a child up for a recreational sports league), utility bills
concerning a specific residence, or Department of Motor Vehicles
records for a specific person or vehicle. Content that is broadly
applicable or otherwise for the general public (i.e., not
individualized) is not subject to this exception. For instance, a PDF
notice that explains an upcoming rate increase for all utility
customers and is not addressed to a specific customer would not be
subject to this exception. Such a general notice would not be subject
to this exception even if it were attached to or sent with an
individualized letter, like a bill, that is addressed to a specific
customer.
Finally, this exception applies only to password-protected or
otherwise secured content. Content may be otherwise secured if it
requires some process of authentication or login to access the content.
Unless subject to another exception, conventional electronic documents
that are on a public entity's general, public web platform would not be
excepted.
This proposed exception for individualized, password-protected
conventional electronic documents has certain limitations. While the
exception is meant to alleviate the burden on public entities of making
all individualized, password-protected or otherwise secured
conventional electronic documents generally accessible, people with
disabilities must still be able to access information from documents
that pertain to them. An accessible version of these documents must be
provided in a timely manner.\127\ A public entity might also need to
make reasonable modifications to ensure that a person with a disability
has equal access to its services, programs, or activities.\128\ For
example, if a person with a disability requests access to an
inaccessible bill from a county hospital, the hospital may need to
extend the payment deadline and waive any late fees if the hospital
does not provide the bill in an accessible format in sufficient time
for the person to review the bill before payment is due.
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\127\ See 28 CFR 35.160(b)(2).
\128\ See 28 CFR 35.130(b)(7)(i).
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As in other situations involving a public entity's effective
communication obligations--for example, when providing an American Sign
Language interpreter--this exception and its accompanying limitation
would also apply to the parent, spouse, or companion of the person
receiving the public entity's services in appropriate
circumstances.\129\
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\129\ See ADA Requirements: Effective Communication, U.S. Dep't
of Just. (updated Feb. 28, 2020), https://www.ada.gov/effective-comm.htm [https://perma.cc/W9YR-VPBP].
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Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 45: What kinds of individualized, conventional electronic
documents do public entities make available and how are they made
available (e.g., on websites or mobile apps)? How difficult would it be
to make such documents accessible? How do people with disabilities
currently access such documents?
Question 46: Do public entities have adequate systems for receiving
notification that an individual with a disability requires access to an
individualized, password-protected conventional electronic document?
What kinds of burdens do these notification systems place on
individuals with disabilities and how easy are these systems to access?
Should the Department consider requiring a particular system for
notification or a particular process or timeline that entities must
follow when they are on notice that an individual with a disability
requires access to such a document?
Question 47: What would the impact of this exception be on people
with disabilities?
Question 48: Which provisions of this rule, including any
exceptions (e.g., the exceptions for individualized, password-protected
conventional electronic documents and content posted by a third party),
should apply to mobile apps?
Sec. 35.202 Conforming Alternate Versions
Generally, to meet the WCAG 2.1 standard, a web page must satisfy
one of the defined levels of conformance--in the case of this proposed
rule, Level AA.\130\ However, WCAG 2.1 allows for the creation of a
``conforming alternate version,'' a separate web page that is
accessible, up-to-date, contains the same information and functionality
as the inaccessible web page, and can be reached via a conforming page
or an accessibility-supported mechanism.\131\ The ostensible purpose of
a ``conforming alternate version'' is to provide individuals with
relevant disabilities access to the information and functionality
provided to individuals without relevant disabilities, albeit via a
separate vehicle.
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\130\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/#cc1 [https://perma.cc/ZL6N-VQX4].
\131\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Conforming Alternate Version (June 5, 2018), https://www.w3.org/TR/WCAG21/#dfn-conforming-alternate-version [https://perma.cc/5NJ6-UZPV].
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Having direct access to an accessible web page provides the best
user experience for many individuals with disabilities, and it may be
difficult for public entities to reliably maintain conforming alternate
versions, which must be kept up to date. Accordingly, the W3C[supreg]
explains that providing a conforming alternate version of a web page is
intended to be a ``fallback option for conformance to WCAG and the
preferred method of conformance is to make all content directly
accessible.'' \132\ However, WCAG 2.1 does not explicitly limit the
circumstances under which an entity may choose to create a conforming
alternate version of a web page instead of making the web page directly
accessible.
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\132\ See W3C[supreg], Understanding Conformance (last updated
Dec. 24, 2022), https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/Q2XU-K4YY].
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The Department is concerned that WCAG 2.1 can be interpreted to
permit the development of two separate websites--one for individuals
with relevant disabilities and another for individuals without relevant
disabilities--even when doing so is unnecessary and when users with
disabilities would have a better experience using the main web page.
This segregated approach is concerning and appears inconsistent with
the ADA's core principles of inclusion and integration.\133\ The
Department is also concerned that the creation of separate websites for
individuals with disabilities may, in practice, result in unequal
access to information and
[[Page 51978]]
functionality. However, as the W3C[supreg] explains, certain limited
circumstances may warrant the use of conforming alternate versions of
web pages. For example, a conforming alternate version of a web page
may be necessary when a new, emerging technology is used on a web page,
but the technology is not yet capable of being made accessible, or when
a website owner is legally prohibited from modifying the web
content.\134\
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\133\ See, e.g., 42 U.S.C. 12101(a)(2) (finding that ``society
has tended to isolate and segregate individuals with
disabilities''); 28 CFR 35.130(b)(1)(iv) (stating that public
entities generally may not ``[p]rovide different or separate aids,
benefits, or services to individuals with disabilities . . . than is
provided to others unless such action is necessary[.]''); 35.130(d)
(requiring that public entities administer services, programs, and
activities in ``the most integrated setting appropriate'').
\134\ See W3C[supreg], Understanding WCAG 2.0 (Oct. 7, 2016),
https://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-conforming-alt-versions-head [https://perma.cc/DV5L-RJUG].
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Due to the concerns about user experience, segregation of users
with disabilities, unequal access to information, and maintenance
burdens discussed above, the Department is proposing to adopt a
slightly different approach to ``conforming alternate versions'' than
that provided under WCAG 2.1. Instead of permitting entities to adopt
``conforming alternate versions'' whenever they believe this is
appropriate, proposed Sec. 35.202 makes it clear that use of
conforming alternate versions of websites and web content to comply
with the Department's proposed requirements in Sec. 35.200 is
permissible only where it is not possible to make websites and web
content directly accessible due to technical limitations (e.g.,
technology is not yet capable of being made accessible) or legal
limitations (e.g., web content is protected by copyright). Conforming
alternate versions should be used rarely--when it is truly not possible
to make the content accessible for reasons beyond the public entity's
control. For example, a conforming alternate version would not be
permissible due to technical limitations just because a town's web
developer lacked the knowledge or training needed to make content
accessible. By contrast, the town could use a conforming alternate
version if its website included a new type of technology that it is not
yet possible to make accessible, such as a specific kind of immersive
virtual reality environment. Similarly, a town would not be permitted
to claim a legal limitation because its general counsel failed to
approve contracts for a web developer with accessibility experience.
Instead, a legal limitation would apply when the inaccessible content
itself could not be modified for legal reasons specific to that
content, such as lacking the right to alter the content or needing to
maintain the content as it existed at a particular time due to pending
litigation. The Department believes this approach is appropriate
because it ensures that, whenever possible, people with disabilities
have access to the same web content that is available to people without
disabilities. However, proposed Sec. 35.202 does not prohibit public
entities from providing alternate versions of web pages in addition to
their accessible main web page to possibly provide users with certain
types of disabilities a better experience.
In addition to allowing conforming alternate versions to be used
where it is not possible to make websites and web content directly
accessible due to technical or legal limitations, this proposed
rulemaking also incorporates general limitations if public entities can
demonstrate that full compliance with proposed Sec. 35.200 would
result in a fundamental alteration in the nature of a service, program,
or activity or in undue financial and administrative burdens.\135\ If
an action would result in such an alteration or such burdens, a public
entity shall take any other action that would not result in such an
alteration or such burdens but would nevertheless ensure that
individuals with disabilities receive the benefits or services provided
by the public entity to the maximum extent possible.\136\ One way in
which public entities could fulfill their obligation to provide the
benefits or services to the maximum extent possible, in the rare
instance when they can demonstrate that full compliance would result in
a fundamental alteration or undue burden, is through creating
conforming alternate versions.
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\135\ See proposed Sec. 35.204.
\136\ See id.
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Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 49: Would allowing conforming alternate versions due to
technical or legal limitations result in individuals with disabilities
receiving unequal access to a public entity's services, programs, and
activities?
Sec. 35.203 Equivalent Facilitation
Proposed Sec. 35.203 provides that nothing prevents a public
entity from using designs, methods, or techniques as alternatives to
those prescribed in the proposed regulation, provided that such
alternatives result in substantially equivalent or greater
accessibility and usability. The 1991 and 2010 ADA Standards for
Accessible Design both contain an equivalent facilitation
provision.\137\ However, for purposes of proposed subpart H, the reason
for allowing for equivalent facilitation is to encourage flexibility
and innovation by public entities while still ensuring equal or greater
access to web and mobile content. Especially in light of the rapid pace
at which technology changes, this proposed provision is intended to
clarify that public entities can use methods or techniques that provide
equal or greater accessibility than this proposed rule would require.
For example, if a public entity wanted to conform its website or mobile
app to WCAG 2.1 Level AAA--which includes all the Level AA requirements
plus some additional requirements for even greater accessibility--this
provision makes clear that the public entity would be in compliance
with this rule. A public entity could also choose to comply with this
rule by conforming its website to WCAG 2.2 or WCAG 3.0, so long as the
version and conformance level of those guidelines that the entity
selects includes all of the WCAG 2.1 Level AA requirements. The
Department believes that this proposed provision offers needed
flexibility for entities to provide usability and accessibility that
meet or exceed what this rule would require as technology continues to
develop. The responsibility for demonstrating equivalent facilitation
rests with the public entity.
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\137\ See 28 CFR pt. 36, app. D, at 1000 (1991); 36 CFR pt.
1191, app. B at 329.
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Sec. 35.204 Duties
Section 35.204 sets forth the general limitations on the
obligations under subpart H. Proposed Sec. 35.204 provides that in
meeting the accessibility requirements set out in this subpart, a
public entity is not required to take any action that would result in a
fundamental alteration in the nature of a service, program, or activity
or in undue financial and administrative burdens. These proposed
limitations on a public entity's duty to comply with the proposed
regulatory provisions mirror the fundamental alteration and undue
burden compliance limitations currently provided in the title II
regulation in 28 CFR 35.150(a)(3) (program accessibility) and 35.164
(effective communication), and the fundamental alteration compliance
limitation currently provided in the title II regulation in 28 CFR
35.130(b)(7) (reasonable modifications in policies, practices, or
procedures). These limitations are thus familiar to public entities.
Generally, the Department believes it would not constitute a
fundamental
[[Page 51979]]
alteration of a public entity's services, programs, or activities to
modify web content or mobile apps to make them accessible, though the
Department seeks the public's input on this view. Moreover, like the
undue burden and fundamental alteration limitations in the title II
regulation referenced above, proposed Sec. 35.204 does not relieve a
public entity of all obligations to individuals with disabilities.
Although a public entity under this proposed rule is not required to
take actions that would result in a fundamental alteration in the
nature of a service, program, or activity or in undue financial and
administrative burdens, it nevertheless must comply with the
requirements of this subpart to the extent that compliance does not
result in a fundamental alteration or undue financial and
administrative burdens. For instance, a public entity might determine
that full WCAG 2.1 Level AA compliance would result in a fundamental
alteration or undue financial and administrative burdens. However, this
same public entity must then determine whether it can take any other
action that would not result in such an alteration or such burdens, but
would nevertheless ensure that individuals with disabilities receive
the benefits or services provided by the public entity to the maximum
extent possible. To the extent that the public entity can, it must do
so. This may include the public entity's bringing its web content into
compliance with some of the WCAG 2.1 Level A or Level AA success
criteria.
It is the Department's view that most entities that choose to
assert a claim that full compliance with the proposed web or mobile app
accessibility requirements would result in undue financial and
administrative burdens will be able to attain at least partial
compliance. The Department believes that there are many steps a public
entity can take to comply with WCAG 2.1 that should not result in undue
financial and administrative burdens, depending on the particular
circumstances.
In determining whether an action would result in undue financial
and administrative burdens, all of a public entity's resources
available for use in the funding and operation of the service, program,
or activity should be considered. The burden of proving that compliance
with proposed Sec. 35.204 would fundamentally alter the nature of a
service, program, or activity, or would result in undue financial and
administrative burdens, rests with the public entity. As the Department
has consistently maintained since promulgation of the title II
regulation in 1991, the decision that compliance would result in a
fundamental alteration or impose undue burdens must be made by the head
of the public entity or their designee, and must be memorialized with a
written statement of the reasons for reaching that conclusion.\138\ The
Department has always recognized the difficulty public entities have in
identifying the official responsible for this determination, given the
variety of organizational structures within public entities and their
components.\139\ The Department has made clear that ``the determination
must be made by a high level official, no lower than a Department head,
having budgetary authority and responsibility for making spending
decisions.'' \140\
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\138\ 28 CFR 35.150(a)(3), 35.164.
\139\ 28 CFR pt. 35, app. B, at 708 (2022).
\140\ Id.
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Where a public entity cannot bring web content or a mobile app into
compliance without a fundamental alteration or an undue burden, it must
take other steps to ensure that individuals with disabilities receive
the benefits or services provided by the public entity to the maximum
extent possible.
Once a public entity has complied with the web or mobile app
accessibility requirements set forth in subpart H, it is not required
by title II of the ADA to make further modifications to its web or
mobile app content to accommodate an individual who is still unable to
access, or does not have equal access to, the web or mobile app content
due to their disability. However, it is important to note that
compliance with this ADA title II rule will not alleviate title II
entities of their distinct employment-related obligations under title I
of the ADA. The Department realizes that the proposed rule is not going
to meet the needs of and provide access to every individual with a
disability, but believes that setting a consistent and enforceable web
accessibility standard that meets the needs of a majority of
individuals with disabilities will provide greater predictability for
public entities, as well as added assurance of accessibility for
individuals with disabilities.
Fully complying with the web and mobile app accessibility
requirements set forth in subpart H means that a public entity is not
required by title II of the ADA to make any further modifications to
its web or mobile app content. This is consistent with the approach the
Department has taken in the context of physical accessibility, where a
public entity is not required to exceed the applicable design
requirements of the ADA Standards if certain wheelchairs or other
power-driven mobility devices exceed those requirements.\141\ However,
if an individual with a disability, on the basis of disability, cannot
access or does not have equal access to a service, program, or activity
through a public entity's web content or mobile app that conforms to
WCAG 2.1 Level AA, the public entity still has an obligation to provide
the individual an alternative method of access to that service,
program, or activity unless the public entity can demonstrate that
alternative methods of access would result in a fundamental alteration
in the nature of a service, program, or activity or in undue financial
and administrative burdens.\142\ Thus, just because an entity is in
full compliance with this rule's web or mobile app accessibility
standard does not mean it has met all of its obligations under the ADA
or other applicable laws. Even though no further changes to a public
entity's web or mobile app content are required by title II of the ADA,
a public entity must still take other steps necessary to ensure that an
individual with a disability who, on the basis of disability, is unable
to access or does not have equal access to the service, program, or
activity provided by the public entity through its accessible web
content or mobile app can obtain access through other effective means.
The entity must still satisfy its general obligations to provide
effective communication, reasonable modifications, and an equal
opportunity to participate in or benefit from the entity's services
using methods other than its website or mobile app.\143\ Of course, an
entity may also choose to further modify its web or mobile app content
to make that content more accessible or usable than this subpart
requires.
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\141\ See 28 CFR pt. 35, app. A, at 626 (2022).
\142\ See, e.g., 28 CFR 35.130(b)(1)(ii), (b)(7), 35.160.
\143\ See 28 CFR 35.130(b)(1)(ii), (b)(7), 35.160.
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The public entity must determine on a case-by-case basis how best
to accommodate those individuals who cannot access the service,
program, or activity provided through the public entity's fully
compliant web content or mobile app. A public entity should refer to 28
CFR 35.160 (effective communication) to determine its obligations to
provide individuals with disabilities with the appropriate auxiliary
aids and services necessary to afford them an equal opportunity to
participate in, and enjoy the benefits of, the public entity's service,
program, or activity. A public entity should refer to 28 CFR
35.130(b)(7) (reasonable modifications) to determine its
[[Page 51980]]
obligations to provide reasonable modifications in policies, practices,
or procedures to avoid discrimination on the basis of disability. It is
helpful to provide individuals with disabilities with information about
how to obtain the modifications or auxiliary aids and services they may
need. The Department therefore strongly recommends that the public
entity provide notice to the public on how an individual who cannot use
the web content or mobile app because of a disability can request other
means of effective communication or reasonable modifications in order
to access the public entity's services, programs, or activities that
are being provided through the web content or mobile app. The
Department also strongly recommends that the public entity provide an
accessibility statement that tells the public how to bring web or
mobile app accessibility problems to the public entity's attention, and
that public entities consider developing and implementing a procedure
for reviewing and addressing any such issues raised. For example, a
public entity is encouraged to provide an email address, accessible
link, accessible web page, or other accessible means of contacting the
public entity to provide information about issues individuals with
disabilities may encounter accessing web or mobile app content or to
request assistance.\144\ Providing this information will help public
entities to ensure that they are satisfying their obligations to
provide equal access, effective communication, and reasonable
modifications.
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\144\ See W3C[supreg], Developing an Accessibility Statement
(Mar. 11, 2021), https://www.w3.org/WAI/planning/statements/
[https://perma.cc/85WU-JTJ6].
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V. Additional Issues for Public Comment
A. Measuring Compliance
As discussed above, the Department is proposing to adopt specific
standards for public entities to use to ensure that their web content
and mobile apps are accessible to individuals with disabilities.
Proposed Sec. 35.200(a) requires public entities to ensure that any
web content and mobile apps that they make available to members of the
public or use to offer services, programs, and activities to members of
the public are readily accessible to and usable by individuals with
disabilities. Proposed Sec. 35.200(b) sets forth the specific
technical requirements in WCAG 2.1 Level AA with which public entities
must comply unless compliance results in a fundamental alteration in
the nature of a service, program, or activity or undue financial and
administrative burdens. Now that the Department is proposing requiring
public entities to comply with a specific technical standard for web
accessibility, it seeks to craft a framework for determining when an
entity has complied with that standard. The framework will ensure the
full and equal access to which individuals with disabilities are
entitled, while setting forth obligations that will be achievable for
public entities.
1. Existing Approaches to Defining and Measuring Compliance
a. Federal and International Approaches
The Department is aware of two Federal agencies that have
implemented requirements for complying with technical standards for web
accessibility. Each agency has taken a different approach to defining
what it means to comply with its regulation. As discussed above, for
Federal agency websites covered by section 508, the Access Board
requires conformance with WCAG 2.0 Level A and Level AA.\145\ In
contrast, in its regulation on accessibility of air carrier websites,
the Department of Transportation took a tiered approach that did not
require all web content to conform to a technical standard before the
first compliance date.\146\ Instead, the Department of Transportation
required those web pages associated with ``core air travel services and
information'' to conform to a technical standard first, while other
types of content could come into conformance later.\147\ The Department
of Transportation also required air carriers to consult with members of
the disability community to test, and obtain feedback about, the
usability of their websites.\148\
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\145\ 36 CFR 1194.1; id. part 1194, app. A (E205.4).
\146\ 14 CFR 382.43(c)(1).
\147\ Id.
\148\ Id. 382.43(c)(2).
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International laws appear to have taken different approaches to
evaluating compliance, though it is unclear which, if any, would be
feasible within the system of government in the United States and the
Department's authority under the ADA. For example, the European Union
has crafted a detailed monitoring methodology that specifies protocols
for member States to sample, test, and report on accessibility of
government websites and mobile apps.\149\ Canada has established a
reporting framework for the specific Federal departments covered by its
web accessibility standard and may impose a range of corrective
actions, depending on how conformant a website is with a technical
standard, measured as a percentage.\150\ New Zealand has developed a
self-assessment methodology for government agencies that combines
automated and manual testing and requires agencies to conduct a
detailed risk assessment and develop a plan for addressing
nonconformance over time.\151\ In the United Kingdom, a government
agency audits a sample of public sector websites and mobile apps (i.e.,
websites and mobile apps of central government, local government
organizations, some charities, and some other non-governmental
organizations) every year, using both manual and automated testing,
following a priority order for auditing that is based on the ``social
impact (for example size of population covered, or site or service
usage) and complaints received.'' \152\ The auditing agency then sends
a report to the public entity, requires the entity to fix accessibility
issues within 12 weeks, and refers the matter to an enforcement agency
after that time frame has passed and the website or app has been
retested.\153\
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\149\ Commission Implementing Decision (EU) 2018/1524 (Dec. 10,
2018), https://eur-lex.europa.eu/eli/dec_impl/2018/1524/oj [https://perma.cc/5M7B-SVP9].
\150\ Government of Canada, Standard on Web Accessibility (Aug.
1, 2011), https://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=23601§ion=html [https://perma.cc/ZU5D-CPQ7].
\151\ New Zealand Government, 2017 Web Standards Self-
Assessments Report (July 2018), https://www.digital.govt.nz/dmsdocument/97-2017-web-standards-self-assessments-report/html
[https://perma.cc/3TQ3-2L9L]; New Zealand Government, Web Standards
Risk Assessment (Oct. 19, 2020), https://www.digital.govt.nz/standards-and-guidance/nz-government-web-standards/risk-assessment/
[https://perma.cc/N3GJ-VK7X]; New Zealand Government, About the Web
Accessibility Standard (Mar. 3, 2022), https://www.digital.govt.nz/standards-and-guidance/nz-government-web-standards/web-accessibility-standard-1-1/about-2/ [https://perma.cc/GPR4-QJ29].
\152\ United Kingdom, Understanding accessibility requirements
for public sector bodies (Aug. 22, 2022), https://www.gov.uk/guidance/accessibility-requirements-for-public-sector-websites-and-apps; United Kingdom, Public sector website and mobile application
accessibility monitoring (Nov. 1, 2022), https://www.gov.uk/guidance/public-sector-website-and-mobile-application-accessibility-monitoring. A Perma archive link was unavailable for these
citations.
\153\ United Kingdom, Public sector website and mobile
application accessibility monitoring (Dec. 6, 2021), https://www.gov.uk/guidance/public-sector-website-and-mobile-application-accessibility-monitoring. A Perma archive link was unavailable for
this citation.
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b. State Governments' Approaches
Within the United States, different public entities have taken
different approaches to measuring compliance with a technical standard
under State laws. For example, Florida,\154\
[[Page 51981]]
Illinois,\155\ and Massachusetts \156\ seem to simply require
conformance, without specifying how compliance will be measured or how
entities can demonstrate compliance with this requirement. California
requires the director of each State agency to certify compliance with
technical standards and post a certification form on the agency's
website.\157\ California also provides assessment checklists for its
agencies and guidelines for sampling and testing, including
recommending that agencies use analytics data to conduct thorough
testing on frequently used pages.\158\ Minnesota requires compliance
with a technical standard, provides accessibility courses and other
resources, and notes the importance of both automated and manual
testing; it also states that ``[f]ew systems are completely
accessible,'' and that ``[t]he goal is continuous improvement.'' \159\
Texas law requires State agencies to, among other steps, comply with a
technical standard, conduct tests with one or more accessibility
validation tools, establish an accessibility policy that includes
criteria for compliance monitoring and a plan for remediation of
noncompliant items, and establish goals and progress measurements for
accessibility.\160\ Texas has also developed an automated accessibility
scanning tool and offers courses on web accessibility.\161\
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\154\ Fla. Stat. 282.603 (2023).
\155\ 30 Ill. Comp. Stat. 587 (2023); Illinois Information
Technology Accessibility Act (Mar. 18, 2022), https://www.dhs.state.il.us/page.aspx?item=32765. A Perma archive link was
unavailable for the second citation.
\156\ Commonwealth of Massachusetts, Enterprise Information
Technology Accessibility Policy (July 28, 2021), https://www.mass.gov/policy-advisory/enterprise-information-technology-accessibility-policy [https://perma.cc/8293-HXUA].
\157\ Cal. Gov't Code 11546.7.
\158\ Department of Rehabilitation, website Accessibility
Requirements and Assessment Checklists, https://www.dor.ca.gov/Home/WebRequirementsAndAssessmentChecklists [https://perma.cc/JAS9-Q343].
\159\ Minnesota IT Services, Guidelines for Accessibility and
Usability of Information Technology Standard (Apr. 17, 2018),
https://mn.gov/mnit/assets/accessibility-guidelines-2018_tcm38-336072.pdf [https://perma.cc/Q9P5-NGMT].
\160\ 1 Tex. Admin. Code 206.50, 213.21.
\161\ Texas Department of Information Resources, EIR
Accessibility Tools & Training, https://dir.texas.gov/electronic-information-resources-eir-accessibility/eir-accessibility-tools-
training [https://perma.cc/A5LC-ZTST].
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c. Other Approaches to Defining and Measuring Compliance
The Department understands that businesses open to the public,
which are subject to title III of the ADA, have, like public entities,
taken different approaches to web accessibility. These approaches may
include collecting feedback from users with disabilities about
inaccessible websites or mobile apps or relying on external consultants
to conduct periodic testing and remediation. Other businesses may have
developed detailed internal policies and practices that require
comprehensive automated and manual testing, including testing by people
with disabilities, on a regular basis throughout their digital content
development and quality control processes. Some businesses have also
developed policies that include timelines for remediation of any
accessibility barriers; these policies may establish different
remediation time frames for different types of barriers.
2. Challenges of Defining and Measuring Compliance With This Rule
The Department recognizes that it must move forward with care,
weighing the interests of all stakeholders, so that as accessibility
for individuals with disabilities is improved, innovation in the use of
the web or mobile apps by public entities is not hampered. The
Department appreciates that the dynamic nature of web content and
mobile apps presents unique challenges in measuring compliance. For
example, as discussed further below, this type of content can change
frequently and assessment of conformance can be complex or subjective.
Therefore, the Department is seeking public input on issues concerning
how compliance should be measured, which the Department plans to
address in its final rule.
The Department is concerned that the type of compliance measures it
currently uses in the ADA, such as the one used to assess compliance
with the ADA Standards, may not be practical in the web or mobile app
context. Public entities must ensure that newly designed and
constructed State and local government facilities are in full
compliance with the scoping and technical specifications in the ADA
Standards unless full compliance is structurally impracticable.\162\
The ADA Standards require newly constructed State or local government
buildings to be 100 percent compliant at all times with the applicable
provisions, subject to limited compliance limitations. However, unlike
buildings, public entities' websites and mobile apps are dynamic and
interconnected, and can contain a large amount of complex, highly
technical, varied, and frequently changing content. Accordingly, the
Department is concerned that a compliance measure similar to the one
used in the other area where it has adopted specific technical
standards may not work well for web content or mobile apps.
---------------------------------------------------------------------------
\162\ 28 CFR 35.151(a), (c).
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If web content or mobile apps are updated frequently, full
conformance with a technical standard after the compliance date may be
difficult or impossible to maintain at all times. The Department is
aware that even when a public entity understands its accessibility
obligations, is committed to maintaining an accessible website, and
intends to conform with WCAG 2.1 Level AA, the dynamic and complex
nature of web content is such that full conformance may not always be
achieved successfully. The Department is seeking public comment about
whether a different framework for measuring compliance may be needed to
address the difficulty that public entities may have in achieving 100
percent conformance with a technical standard, 100 percent of the time.
Though title II does not prohibit isolated or temporary interruptions
in service or access due to maintenance or repairs,\163\ it is possible
that websites or mobile apps could be undergoing maintenance or repair
almost constantly, such that this compliance limitation is not readily
transferrable to web or mobile app accessibility.
---------------------------------------------------------------------------
\163\ See 28 CFR 35.133(b).
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The Department also appreciates the serious impact that a failure
to comply with WCAG 2.1 Level AA can have on people with disabilities.
For example, if a person who has limited manual dexterity and uses
keyboard navigation is trying to apply for public benefits, and the
``submit'' button on the form is not operable using the keyboard, that
person will not be able to apply independently for benefits online,
even if the rest of the website is fully accessible. A person who is
blind and uses a screen reader may not be able to make an appointment
at a county health clinic if an element of the clinic's appointment
calendar is not coded properly. Nearly all of a public entity's web
content could conform with the WCAG 2.1 Level AA success criteria, but
one instance of nonconformance could still prevent someone from
accessing services on the website. People with disabilities must be
able to access the many important government services, programs, and
activities that are offered through web content and mobile apps on
equal terms, without sacrificing their privacy, dignity, or
independence. The Department's concern about the many barriers to full
and equal participation in civic life that inaccessible web content can
pose for
[[Page 51982]]
people with disabilities is an important motivating factor behind the
Department's decision to propose requiring compliance with a technical
standard. By clarifying what compliance with a technical standard
means, the Department seeks to enhance the impact this requirement will
have on the daily lives of people with disabilities by helping public
entities to understand their obligations, thereby increasing
compliance.
An additional challenge to specifying what it means to comply with
a technical standard for web accessibility is that, unlike the physical
accessibility required by the ADA Standards, which can be objectively
and reliably assessed with one set of tools, different automated
testing tools may provide different assessments of the same website's
accessibility. For example, using different web browsers with different
testing tools or assistive technology can yield different results.
Assessments of a website's or mobile app's accessibility may change
frequently over time as the web content or mobile app changes.
Automated testing tools also may report purported accessibility errors
inaccurately. For example, an automated testing tool may report an
error related to insufficient color contrast because the tool has not
correctly detected the foreground and background colors. These tools
will also provide an incomplete assessment of a website's accessibility
because automated tools cannot assess conformance with certain WCAG
success criteria, such as whether color is being used as the only
visual means of conveying information or whether all functionality of
the content is operable through a keyboard interface.\164\ Additional,
manual testing is required to conduct a full assessment of conformance,
which can take time and often relies on sampling. Furthermore, the
Department understands that a person's experiences of web or mobile app
accessibility may vary depending on what assistive technology or other
types of hardware or software they are using. Accordingly, the
Department is considering what the appropriate measure for determining
compliance with the web and mobile app accessibility requirements
should be.
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\164\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Use of Color (June 5, 2018), https://www.w3.org/TR/WCAG21/#use-of-color [https://perma.cc/R3VC-WZMY]; W3C[supreg], Web Content
Accessibility Guidelines 2.1, Keyboard Accessible, https://www.w3.org/TR/WCAG21/#keyboard-accessible [https://perma.cc/5A3C-9KK2].
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The Department believes that a more nuanced definition of
compliance might be appropriate because some instances of
nonconformance with WCAG success criteria may not impede access to the
services, programs, or activities offered through a public entity's web
content or mobile app. For example, even if a county park fails to
provide alt text on an image of the scenic views at the park, a person
who is using a screen reader could still reserve a picnic area
successfully, so long as the website also includes text about any
amenities shown in the photo. If the contrast between the text and
background colors used for permit application instructions deviates by
a few hundredths from the color contrast ratio required by WCAG 2.1
Level AA, most people with low vision will likely still be able to
access those instructions without difficulty. However, in either of
these examples, the web content would be out of conformance with WCAG
2.1 Level AA. If the Department does not establish a more detailed
compliance framework, a person with a disability would have a valid
basis for filing a complaint with the Department, other designated
Federal agencies, or in Federal court about either scenario. This could
expose public entities to extensive litigation risk, while potentially
generating more complaints than the Department, other designated
Federal agencies, or the courts have capacity to resolve, and without
improving access for people with disabilities.
Some may argue that the same risk of allegedly unjustified
enforcement action also exists for some provisions of the ADA
Standards. Yet, the Department believes that, for all of the reasons
described above (including the frequently changing nature of web
content, the technical difficulties inherent in ensuring compliance,
and the potential for differing assessments of compliance), a public
entity's web content and mobile apps may be more likely to be out of
full compliance with WCAG 2.1 Level AA than its buildings are to be out
of compliance with the ADA Standards. Sustained, perfect compliance
with WCAG 2.1 Level AA may be more difficult to achieve on a website
that is updated several times a week and includes thousands of pages of
content than compliance with the ADA Standards is in a town hall that
is renovated once a decade. The Department also believes that slight
deviations from WCAG 2.1 Level AA may be more likely to occur without
having a detrimental impact on access than is the case with the ADA
Standards. Additionally, it may be easier for an aggrieved individual
to find evidence of noncompliance with WCAG 2.1 Level AA than
noncompliance with the ADA Standards, given the availability of many
free testing tools and the fact that public entities' websites can be
accessed from almost anywhere. The Department welcomes public comment
on the accuracy of all of these assumptions, as well as about whether
it is appropriate to consider the impact of nonconformance with a
technical standard when evaluating compliance with the proposed rule.
3. Possible Approaches to Defining and Measuring Compliance With This
Rule
The Department is considering a range of different approaches to
measuring compliance with this proposed rule. First, the Department is
considering whether to require a numerical percentage of conformance
with a technical standard, which could be 100 percent or less. This
percentage could be a simple numerical calculation based on the number
of instances of nonconformance across a website or mobile app, or the
percentage could be calculated by weighting different instances of
nonconformance differently. Weighting could be based on factors like
the importance of the content; the frequency with which the content is
accessed; the severity of the impact of nonconformance on a person's
ability to access the services, programs, or activities provided on the
website; or some other formula. This idea of weighting would not be
unprecedented in the context of the title II regulatory scheme because,
in some circumstances, the existing title II regulation requires
priority to be given to alterations that will provide the greatest
access.\165\ As described above, the Department of Transportation's web
accessibility regulation has, at times, also prioritized the
accessibility of certain content.
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\165\ See 28 CFR 35.151(b)(4)(iv)(B).
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However, the Department does not believe that a percentage-based
approach would achieve the purposes of this rule or be feasible to
implement because it may not ensure access and will be difficult to
measure. First, as discussed previously, a percentage-based approach
seems unlikely to ensure access for people with disabilities. Even if
the Department were to require that 95 percent or 99 percent of an
entity's web content or mobile apps conform with WCAG 2.1 (or that all
content or apps conform to 95 percent or 99 percent of the WCAG 2.1
success criteria), the relatively small percentage that does not
conform could still block an individual with a disability from
accessing a service, program, or activity. For example, a
[[Page 51983]]
single critical accessibility error could prevent an individual with a
disability from submitting their application for a business license.
A percentage-based standard is also likely to be difficult to
implement. If the Department adopts a specific formula for calculating
whether a certain percentage-based compliance threshold has been met,
it could be challenging for members of the public and regulated
entities to determine whether web content and mobile apps comply with
this rule. Calculations required to evaluate compliance could become
complex, particularly if the Department were to adopt a weighted or
tiered approach that requires certain types of core content to be fully
accessible, while allowing a lower percentage of accessibility for less
important or less frequently accessed content. People with disabilities
who are unable to use inaccessible parts of a website or mobile app may
have particular difficulty calculating a compliance percentage, because
it could be difficult, if not impossible, for them to correctly
evaluate the percentage of a website or mobile app that is inaccessible
if they do not have full access to the entire website or app. For these
reasons, the Department currently is not inclined to adopt a
percentage-based approach to measuring compliance, though we welcome
public comment on ways that such an approach could be implemented
successfully.
Another possible approach might be to limit an entity's compliance
obligations where nonconformance with a technical standard does not
impact a person's ability to have equal access to services, programs,
or activities offered on a public entity's website or mobile app. For
example, the Department could specify that nonconformance with WCAG 2.1
Level AA does not constitute noncompliance with this part if that
nonconformance does not prevent a person with a disability from
accessing or acquiring the same information, engaging in the same
interactions, performing the same transactions, and enjoying the same
services, programs, and activities that the public entity offers
visitors to its website without relevant disabilities, with
substantially equivalent ease of use. This approach would provide equal
access to people with disabilities, while limiting the conformance
obligations of public entities where technical nonconformance with WCAG
2.1 Level AA does not affect access. If a public entity's compliance
were to be challenged, in order to prevail, the entity would need to
demonstrate that, even though it was technically out of conformance
with one or more of the WCAG 2.1 Level AA success criteria, the
nonconformance had such a minimal impact that this provision applies,
and the entity has therefore met its obligations under the ADA despite
nonconformance with WCAG 2.1.
The Department believes that this approach would have a limited
impact on the experience of people with disabilities who are trying to
use web content or mobile apps for two reasons. First, by its own
terms, the provision would require a public entity to demonstrate that
any nonconformance did not have a meaningful effect. Second, it is
possible that few public entities will choose to rely on such a
provision, because they would prefer to avoid assuming the risk
inherent in this approach to compliance. A public entity may find it
easier to conform to WCAG 2.1 Level AA in full so that it can depend on
that clearly defined standard, instead of attempting to determine
whether any nonconformance could be excused under this provision.
Nonetheless, the Department believes some public entities may find such
a provision useful because it would prevent them from facing the
prospect of failing to comply with the ADA based on a minor technical
error. The Department seeks public comment on all of these assumptions.
The Department also believes such an approach may be logically
consistent with the general nondiscrimination principles of section
508, which require comparable access to information and data,\166\ and
of the ADA's implementing regulation, which require an equal
opportunity to participate in and benefit from services.\167\ The
Department has heard support from the public for ensuring that people
with disabilities have equal access to the same information and
services as people without disabilities, with equivalent ease of use.
The Department is therefore evaluating ways that it can incorporate
this crucial principle into a final rule, while simultaneously ensuring
that the compliance obligations imposed by the final rule will be
attainable for public entities in practice.
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\166\ See 29 U.S.C. 794d(a)(1)(A).
\167\ See 28 CFR 35.130(b)(1)(ii).
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Another approach the Department is considering is whether an entity
could demonstrate compliance with this part by affirmatively
establishing and following certain robust policies and practices for
accessibility feedback, testing, and remediation. The Department has
not made any determinations about what policies and practices, if any,
would be sufficient to demonstrate compliance, and the Department is
seeking public comment on this issue. However, for illustrative
purposes only, and to enable the public to better understand the
general approach the Department is considering, assume that a public
entity proactively tested its existing web and mobile app content for
conformance with WCAG 2.1 Level AA using automated testing on a regular
basis (e.g., every 30 days), conducted user testing on a regular basis
(e.g., every 90 days), and tested any new web and mobile app content
for conformance with WCAG 2.1 Level AA before that content was posted
on its website or added to its mobile app. This public entity also
remediated any nonconformance found in its existing web and mobile app
content soon after the test (e.g., within two weeks). An entity that
took these (or similar) steps on its own initiative could be deemed to
have complied with its obligations under the ADA, even if a person with
a disability encountered an access barrier or a particular automated
testing report indicated noncompliance with WCAG 2.1 Level AA. The
public entity would be able to rely on its existing, effectively
working web and mobile app content accessibility testing and
remediation program to demonstrate compliance with the ADA. In a final
rule, the Department could specify that nonconformance with WCAG 2.1
Level AA does not constitute noncompliance with this part if a public
entity has established certain policies for testing the accessibility
of web and mobile app content and remediating inaccessible content, and
the entity can demonstrate that it follows those policies.
This approach would enable a public entity to remain in compliance
with the ADA even if its website or mobile app is not in perfect
conformance with WCAG 2.1 Level AA at all times, if the entity is
addressing any nonconformance within a reasonable period of time. A new
policy that a public entity established in response to a particular
complaint, or a policy that an entity could not demonstrate that it has
a practice of following, would not satisfy such a provision. The
Department could craft requirements for such policies in many different
ways, including by requiring more prompt remediation for nonconformance
with a technical standard that has a more serious impact on access to
services, programs, and activities; providing more detail about what
testing is sufficient (e.g., both automated testing and manual testing,
testing by users with certain types of disabilities); setting shorter
or longer time frames for how often testing
[[Page 51984]]
should occur; setting shorter or longer time frames for remediation; or
establishing any number of additional criteria.
The Department is also considering whether an entity should be
permitted to demonstrate compliance with this rule by showing
organizational maturity--that the organization has a sufficiently
robust program for web and mobile app accessibility. Organizational
maturity models provide a framework for measuring how developed an
organization's programs, policies, and practices are--either as a whole
or on certain topics (e.g., cybersecurity, user experience, project
management, accessibility). The authors of one accessibility maturity
model observe that it can be difficult to know what a successful
digital accessibility program looks like, and they suggest that
maturity models can help assess the proficiency of accessibility
programs and a program's capacity to succeed.\168\ Whereas
accessibility conformance testing evaluates the accessibility of a
particular website or mobile app at a specific point in time,
organizational maturity evaluates whether an entity has developed the
infrastructure needed to produce accessible web content and mobile apps
consistently.\169\ For example, some outcomes that an organization at
the highest level of accessibility maturity might demonstrate include
integrating accessibility criteria into all procurement and contracting
decisions, leveraging employees with disabilities to audit
accessibility, and periodically evaluating the workforce to identify
gaps in accessibility knowledge and training.\170\
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\168\ See Level Access, The Digital Accessibility Maturity
Model: Introduction to DAMM, https://www.levelaccess.com/the-digital-accessibility-maturity-model-introduction-to-damm/ [https://perma.cc/6K38-FJZU].
\169\ See W3C[supreg], W3C Accessibility Maturity Model, About
the W3C Accessibility Maturity Model (Sept. 6, 2022), https://www.w3.org/TR/maturity-model/ [https://perma.cc/NB29-BDRN].
\170\ See W3C[supreg], W3C Accessibility Maturity Model, Ratings
for Evaluation (Sept. 6, 2022), https://www.w3.org/TR/maturity-model/ [https://perma.cc/W7DA-HM9Z].
---------------------------------------------------------------------------
Existing maturity models for accessibility establish several
different categories of accessibility, which are called domains or
dimensions, then assess which maturity level an organization is at for
each category.\171\
---------------------------------------------------------------------------
\171\ See, e.g., W3C[supreg], W3C Accessibility Maturity Model,
Maturity Model Structure (Sept. 6, 2022), https://www.w3.org/TR/maturity-model/ [https://perma.cc/NB29-BDRN]; Level Access, The
Digital Accessibility Maturity Model: Core Dimensions, https://www.levelaccess.com/the-digital-accessibility-maturity-model-core-dimensions/ [https://perma.cc/C6ZC-K9ZF]; Level Access, The Digital
Accessibility Maturity Model: Maturity Levels, https://www.levelaccess.com/the-digital-accessibility-maturity-model-maturity-levels/ [https://perma.cc/25HH-SLYF].
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For example, the Office of Management and Budget requires Federal
agencies to assess the maturity of their section 508 programs in the
following domains: acquisition, agency technology life cycles, testing
and validation, complaint management, and training.\172\ At the lowest
level of maturity in each domain, no formal policies, processes, or
procedures have been defined; at the highest level of maturity,
effectiveness in the domain is validated, measured, and tracked.\173\
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\172\ U.S. Gen. Servs. Admin., Assess your Section 508 program
maturity, https://www.section508.gov/tools/playbooks/technology-accessibility-playbook-intro/play02/ [https://perma.cc/89FM-SJ3H].
\173\ Id.
---------------------------------------------------------------------------
As another example, according to a different digital accessibility
maturity model, if an organization has well-trained, qualified
individuals test all of its technology, and has individuals with
relevant disabilities conduct testing at multiple stages in the
development lifecycle, the organization would meet some of the criteria
to be rated at the fourth level out of five maturity levels in one of
ten dimensions--testing and validation.\174\ The Department seeks
public comment on whether the maturity levels and criteria established
in existing organizational maturity models for digital accessibility
would be feasible for State and local government entities to meet.
---------------------------------------------------------------------------
\174\ Level Access, The Digital Accessibility Maturity Model:
Dimension #7--Testing and Validation, https://www.levelaccess.com/the-digital-accessibility-maturity-model-dimension-7-testing-and-validation/ [https://perma.cc/VU93-3NH4].
---------------------------------------------------------------------------
As with the policy-based approach discussed above, a focus on
organizational maturity would enable a public entity to demonstrate
compliance with the ADA even if the entity's website or mobile app is
not in perfect conformance with WCAG 2.1 Level AA at all times, so long
as the entity can demonstrate sufficient maturity of its digital
accessibility program, which would indicate its ability to quickly
remedy any issues of nonconformance identified. The Department could
define requirements for organizational maturity in many different ways,
including by adopting an existing organizational maturity model in
full, otherwise relying on existing organizational maturity models,
establishing different categories of organizational maturity (e.g.,
training, testing, feedback), or establishing different criteria for
measuring organizational maturity levels in each category. The
Department could also require an entity to have maintained a certain
level of organizational maturity across a certain number of categories
for a specified period of time or require an entity to have improved
its organizational maturity by a certain amount in a specified period
of time.
The Department has several concerns about whether allowing
organizations to demonstrate compliance with this rule through their
organizational maturity will achieve the goals of this rulemaking.
First, this approach may not provide sufficient accessibility for
individuals with disabilities. It is not clear that when State and
local government entities make their accessibility programs more
robust, that will necessarily result in websites and mobile apps that
consistently conform to WCAG 2.1 Level AA. If the Department permits a
lower level of organizational maturity (e.g., level four out of five)
or requires the highest level of maturity in only some categories
(e.g., level five in training), this challenge may be particularly
acute. Second, this approach may not provide sufficient predictability
or certainty for public entities. Organizational maturity criteria may
prove subjective and difficult to measure, so disputes about an
entity's assessments of its own maturity may arise. Third, an
organizational maturity model may be too complex for the Department to
define or for public entities to implement. Some existing models
include as many as ten categories of accessibility, with five levels of
maturity, and more than ten criteria for some levels.\175\ Some of
these criteria are also highly technical and may not be feasible for
some public entities to understand or satisfy (e.g., testing artifacts
are actively updated and disseminated based on lessons learned from
each group; accessibility testing artifacts required by teams are
actively updated and maintained for form and ease of use).\176\ Of
course, a public entity that does not want to use an organizational
maturity model would not need to do so; it could meet its obligations
under the rule by complying with WCAG 2.1 Level AA. But it is unclear
whether this approach will benefit either people with disabilities or
public entities. We seek public
[[Page 51985]]
comment on whether the Department should adopt an approach to
compliance that includes organizational maturity, and how such an
approach could be implemented successfully.
---------------------------------------------------------------------------
\175\ Level Access, Digital Accessibility Maturity Model (DAAM)
Archives, https://www.levelaccess.com/category/damm/ [https://perma.cc/Z683-X9H5].
\176\ Level Access, The Digital Accessibility Maturity Model:
Dimension #7--Testing and Validation, https://www.levelaccess.com/the-digital-accessibility-maturity-model-dimension-7-testing-and-validation/ [https://perma.cc/VU93-3NH4].
---------------------------------------------------------------------------
The Department seeks public comment on how compliance with the web
and mobile app accessibility requirements should be assessed or
measured, including comments on these approaches to measuring
compliance and any alternative approaches it should consider.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Question 50: What should be considered sufficient evidence to
support an allegation of noncompliance with a technical standard for
purposes of enforcement action? For example, if web content or a mobile
app is noncompliant according to one testing methodology, or using one
configuration of assistive technology, hardware, and software, is that
sufficient?
Question 51: In evaluating compliance, do you think a public
entity's policies and practices related to web and mobile app
accessibility (e.g., accessibility feedback, testing, remediation)
should be considered and, if so, how? For example, should consideration
be given to an entity's effectively working processes for accepting and
addressing feedback about accessibility problems; using automated
testing, manual testing, or testing by people with relevant
disabilities to identify accessibility problems; and remediating any
accessibility problems identified within a reasonable period of time
according to the entity's policies, and if so, how? How would such an
approach impact people with disabilities?
Question 52: If you think a public entity's policies and practices
for receiving feedback on web and mobile app accessibility should be
considered in assessing compliance, what specific policies and
practices for feedback would be effective?
Question 53: If you think a public entity's web and mobile app
accessibility testing policies and practices should be considered in
assessing compliance, what specific testing policies and practices
would be effective? For example, how often should websites and mobile
apps undergo testing, and what methods should be used for testing? If
manual testing is required, how often should this testing be conducted,
by whom, and what methods should be used? Should the Department require
public entities' websites and mobile apps to be tested in consultation
with individuals with disabilities or members of disability
organizations, and, if so, how?
Question 54: If you think a public entity's web and mobile app
accessibility remediation policies and practices should be considered
in assessing compliance, what specific remediation policies and
practices would be effective? Should instances of nonconformance that
have a more serious impact on usability--because of the nature of the
nonconformance (i.e., whether it entirely prevents access or makes
access more difficult), the importance of the content, or otherwise--be
remediated in a shorter period of time, while other instances of
nonconformance are remediated in a longer period of time? How should
these categories of nonconformance be defined and what time frames
should be used, if any?
Question 55: Should a public entity be considered in compliance
with this part if the entity remediates web and mobile app
accessibility errors within a certain period of time after the entity
learns of nonconformance through accessibility testing or feedback? If
so, what time frame for remediation is reasonable? How would allowing
public entities a certain amount of time to remediate instances of
nonconformance identified through testing or feedback impact people
with disabilities?
Question 56: Should compliance with this rule be assessed
differently for web content that existed on the public entity's website
on the compliance date than for web content that is added after the
compliance date? For example, might it be appropriate to allow some
additional time for remediation of content that is added to a public
entity's website after the compliance date, if the public entity
identifies nonconformance within a certain period of time after the
content is added, and, if so, what should the remediation time frame
be? How would allowing public entities a certain amount of time to
remediate instances of nonconformance identified in content added after
the compliance date impact people with disabilities?
Question 57: What policies and practices for testing and
remediating web and mobile app accessibility barriers are public
entities or others currently using and what types of testing and
remediation policies and practices are feasible (or infeasible)? What
types of costs are associated with these testing and remediation
policies?
Question 58: In evaluating compliance, do you think a public
entity's organizational maturity related to web and mobile app
accessibility should be considered and, if so, how? For example, what
categories of accessibility should be measured? How should maturity in
each category be assessed or demonstrated i.e., what should the levels
of organizational maturity be and what should an entity be required to
do to attain each level)? What indicators of organizational maturity
criteria would be feasible for public entities to attain? How would an
approach that assesses organizational maturity for purposes of
demonstrating compliance impact people with disabilities? Would such an
approach be useful for public entities?
Question 59: If you think a public entity's organizational maturity
should be considered in assessing compliance, what level of
organizational maturity would be effective? For example, if an
organizational maturity model has ten categories, should an entity be
required to attain the highest level of maturity in all ten? Should an
entity be required to sustain a particular level of organizational
maturity for a certain length of time?
Question 60: Should a public entity be considered in compliance
with this part if the entity increases its level of organizational
maturity by a certain amount within a certain period of time? If so,
what time frame for improvement is reasonable, and how much should
organizational maturity be required to improve? How would an entity
demonstrate this improvement? How would allowing public entities a
certain amount of time to develop organizational maturity with respect
to accessibility impact people with disabilities? Would requiring
public entities to improve their organizational maturity over time be
effective?
Question 61: Are there any frameworks or methods for defining,
assessing, or demonstrating organizational maturity with respect to
digital accessibility that the Department should consider adopting for
purposes of this rule?
[[Page 51986]]
Question 62: Should the Department address the different level of
impact that different instances of nonconformance with a technical
standard might have on the ability of people with disabilities to
access the services, programs, and activities that a public entity
offers via the web or a mobile app? If so, how?
Question 63: Should the Department consider limiting public
entities' compliance obligations if nonconformance with a technical
standard does not prevent a person with disabilities from accessing the
services, programs, and activities that a public entity offers via the
web or a mobile app? Should the Department consider limiting public
entities' compliance obligations if nonconformance with a technical
standard does not prevent a person with disabilities from accessing the
same information, engaging in the same interactions, and enjoying the
same programs, services, and activities as people without relevant
disabilities, within similar time frames and with substantially
equivalent ease of use? Should the Department consider limiting public
entities' compliance obligations if members of the public with
disabilities who are seeking information or services from a public
entity have access to and use of information and services that is
comparable to that provided to members of the public who are not
individuals with disabilities? How would these limitations impact
people with disabilities?
Question 64: Should the Department adopt percentages of web or
mobile app content that need to be accessible or other similar means of
measuring compliance? Is there a minimum threshold below 100 percent
that is an acceptable level of compliance? If the Department sets a
threshold for compliance, how would one determine whether a website or
mobile app meets that threshold?
Question 65: When assessing compliance, should all instances of
nonconformance be treated equally? Should nonconformance with certain
WCAG 2.1 success criteria, or nonconformance in more frequently
accessed content or more important core content, be given more weight
when determining whether a website or mobile app meets a particular
threshold for compliance?
Question 66: How should the Department address isolated or
temporary noncompliance \177\ with a technical standard and under what
circumstances should noncompliance be considered isolated or temporary?
How should the Department address noncompliance that is a result of
technical difficulties, maintenance, updates, or repairs?
---------------------------------------------------------------------------
\177\ See 28 CFR 35.133(b).
---------------------------------------------------------------------------
Question 67: Are there any local, State, Federal, international, or
other laws or policies that provide a framework for measuring,
evaluating, defining, or demonstrating compliance with web or mobile
app accessibility requirements that the Department should consider
adopting?
VI. Regulatory Process Matters
The Department has examined the likely economic and other effects
of this proposed rule addressing the accessibility of web content and
mobile apps, as required, under applicable Executive Orders,\178\
Federal administrative statutes (e.g., the Regulatory Flexibility
Act,\179\ Paperwork Reduction Act,\180\ and Unfunded Mandates Reform
Act \181\) and other regulatory guidance.\182\
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\178\ See E.O. 14094, 88 FR 21879 (Apr. 6, 2023); E.O. 13563, 76
FR 3821 (Jan. 21, 2011); E.O. 13272, 67 FR 53461 (Aug. 13, 2002);
E.O. 13132, 64 FR 43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735
(Sept. 30, 1993).
\179\ Regulatory Flexibility Act of 1980 (``RFA''), as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996, 5
U.S.C. 601 et seq.
\180\ Paperwork Reduction Act (``PRA''), 44 U.S.C. 3501 et seq.
\181\ Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et
seq.
\182\ OMB Circular A-4 (Sept. 17, 2003).
---------------------------------------------------------------------------
As discussed previously, the purpose of this proposed regulation is
to revise the regulation implementing title II of the ADA in order to
ensure that the services, programs, or activities offered by State and
local government entities to the public via web content and mobile apps
are accessible to people with disabilities. The Department is proposing
to adopt specific technical standards related to the accessibility of
the web content and mobile apps of State and local government entities
and is specifying proposed dates by which such web content and mobile
apps must meet those standards. This rule is necessary to help public
entities understand how to ensure that people with disabilities will
have equal access to the services, programs, and activities public
entities make available on or through their web content and mobile
apps.
The Department has carefully crafted this proposed regulation to
better ensure the protections of title II of the ADA, while at the same
time doing so in the most economically efficient manner possible. After
assessing the likely costs of this proposed regulation, the Department
has determined that it is a section 3(f)(1) significant regulatory
action within the meaning of Executive Order 12866, as amended by
Executive Order 14094. As such, the Department has undertaken a
Preliminary Regulatory Impact Analysis (``PRIA'') pursuant to Executive
Order 12866. The Department has undertaken a Preliminary Regulatory
Flexibility Analysis as specified in Sec. 603(a) of the Regulatory
Flexibility Act. The results of both of these analyses are summarized
below. Lastly, the Department does not believe that this proposed
regulation will have any impact--significant or otherwise--relative to
the Paperwork Reduction Act, the Unfunded Mandates Reform Act, or the
federalism principles outlined in Executive Order 13132.
A. Preliminary Regulatory Impact Analysis (``PRIA'') Summary
1. Introduction
The Department has prepared a Preliminary Regulatory Impact
Analysis (``PRIA'') for this rulemaking. This PRIA complies with the
requirements of Executive Order 12866, as well as other authorities on
regulatory planning, by providing a robust economic analysis of the
costs and benefits of this rulemaking. It contains a Preliminary
Regulatory Flexibility Analysis (``PRFA''), which is also included in
this summary. The Department contracted with Eastern Research Group
Inc. (``ERG'') to prepare this economic assessment. This summary
provides an overview of the Department's preliminary economic analysis
and key components of the PRIA. The full PRIA will be made available at
https://www.ada.gov/assets/_pdfs/web-pria.pdf.
Requiring State and local government entities' web content and
mobile apps to comply with the WCAG 2.1 Level AA success criteria will
result in costs for State and local government entities to remediate
and maintain their web content and mobile apps in conformance with this
technical standard. The Department believes that most of these costs
will be one-time expenses to remediate existing websites, and that the
rule will not impose as substantial cost burdens in the creation of new
websites, as experts estimate that building accessibility into a
website initially is 3-10 times less expensive than retrofitting an
existing one for accessibility.\183\ Based on a Department analysis of
the web presence of a sample of 227 State and local government
[[Page 51987]]
entities, the Department estimates that a total number of 109,893 State
and local government entity websites and 8,805 State and local
government entity mobile apps will be affected by the rule. These
websites and mobile apps provide services on behalf of and are managed
by 91,489 State and local government entities that will incur these
costs. These costs include one-time costs for familiarization with the
requirements of the rule; testing, remediation, and O&M costs for
websites; testing, remediation, and O&M costs for mobile apps; and
school course remediation costs. The remediation costs include both
time and software components. Initial familiarization, testing, and
remediation costs of the proposed rule occur over the first two or
three years (two years for large governments and three years for small
governments) and are presented in Table 3. Implementation costs accrue
during the first three years of the analysis (the implementation
period) and total $15.8 billion, undiscounted. After the implementation
period, annual O&M costs are $1.8 billion. Annualized costs are
calculated over a 10-year period that includes both this implementation
period and seven years post-implementation. Annualized costs over this
10-year period are estimated at $2.8 billion assuming a 3 percent
discount rate or $2.9 billion assuming a 7 percent discount rate. All
values are presented in 2021 dollars as 2022 data were not yet
available. These costs are summarized in Table 4, Table 5, and Table 6.
Two findings that were notable in the Department's estimations for
accessible course content were that, due to the limitations to the
exceptions for course content, the Department expects that within two
years following implementation virtually all postsecondary courses will
be remediated, and within the first year of implementation virtually
all elementary and secondary classes or courses will be remediated.
---------------------------------------------------------------------------
\183\ Level Access, The Road to Digital Accessibility, https://www.levelaccess.com/the-road-to-digital-accessibility/ [https://perma.cc/4972-J8TA].
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Benefits will generally accrue to all individuals who access State
and local government entities' web content and mobile apps, and
additional benefits will accrue to individuals with certain types of
disabilities. The WCAG 2.1 Level AA standards primarily benefit
individuals with vision, hearing, cognitive, and manual dexterity
disabilities because WCAG 2.1 is intended to address barriers that
often impede access for people with these disability types. Using 2021
data, the Department estimates that 4.8 percent of adults have a vision
disability, 7.5 percent have a hearing disability, 10.1 percent have a
cognitive disability, and 5.7 percent have a manual dexterity
disability. Due to the incidence of multiple disabilities, the total
share without any of these disabilities is 80.1 percent.
Annual benefits, beginning once the rule is fully implemented,
total $11.4 billion. Because individuals generally prefer benefits
received sooner, future benefits need to be discounted to reflect the
lower value due to the wait to receive them. The Office of Management
and Budget (``OMB'') guidance states that annualized benefits and costs
should be presented using real discount rates of 3 and 7 percent.\184\
Benefits annualized over a 10-year period that includes both three
years of implementation and seven years post-implementation total $9.3
billion per year, assuming a 3 percent discount rate, and $8.9 billion
per year, assuming a 7 percent discount rate. Annual and annualized
monetized benefits of the proposed rule are presented in Table 7, Table
8, and Table 9. There are many additional benefits that have not been
monetized due to data availability. Benefits that cannot be monetized
are discussed qualitatively. Impacts to individuals include increased
independence, increased flexibility, increased privacy, reduced
frustration, decreased reliance on companions, and increased program
participation. This proposed rule will also benefit governments through
increased certainty about what constitutes accessible web content,
potential reduction in litigation, and a larger labor market pool.
---------------------------------------------------------------------------
\184\ See Office of Management and Budget, Circular A-4 (Sept.
17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf [https://perma.cc/7655-M7UF].
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Comparing annualized costs and benefits, monetized benefits to
society outweigh the costs. A summary of this comparison is presented
in Table 10. Net annualized benefits over the first 10 years post
publication of this rule total $6.5 billion per year using a 3 percent
discount rate and $6.0 billion per year using a 7 percent discount
rate. Additionally, beyond this 10-year period, benefits are likely to
continue to accrue at a greater rate than costs because many of the
costs are upfront costs and benefits tend to have a delay before
beginning to accrue.
To consider the relative magnitude of the estimated costs of this
proposed regulation, the Department also compared the costs to revenues
for public entities. Because the costs for each government entity type
are estimated to be well below 1 percent of revenues, the Department
does not believe the rule will be unduly burdensome or costly for
public entities.\185\ Costs of the rulemaking for each government
entity type are estimated to be well below this 1 percent threshold.
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\185\ As noted above and as a point of reference, the United
States Small Business Administration advises agencies that a
potential indicator that the impact of a proposed regulation may be
``significant'' is whether the costs exceed 1 percent of the gross
revenues of the entities in a particular sector, although the
threshold may vary based on the particular types of entities at
issue. The Department estimates that the costs of this rulemaking
for each government entity type are far less than 1 percent of
revenues. See Small Bus. Admin., A Guide for Government Agencies:
How to Comply with the Regulatory Flexibility Act 19 (Aug. 2017),
https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH].
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The Department's economic analysis is discussed more fully in the
complete PRIA. However, the Department will review its findings and
analysis in this summary. Some key portions of the PRIA are also
included here in full to aid in understanding the Department's analysis
and to provide sufficient context for public feedback.
[[Page 51988]]
Table 3--Initial Familiarization, Testing, and Remediation Costs
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.02 $0.90 $5.79 $4.83 $11.44 $3.63 $0.00 $0.56 $27.17
Websites........................ 228.9 742.5 2,363.4 1,342.9 374.4 1,826.1 6.4 1,283.0 8,167.7
Mobile apps..................... 13.7 53.1 93.4 1.3 0.0 379.7 1.2 64.4 606.8
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 5,393.8 5,393.8
Primary and secondary course N/A 47.4 18.5 40.0 N/A 1,059.5 N/A N/A 1,165.4
remediation....................
Third-party website remediation. 6.6 35.8 133.5 77.6 18.0 103.1 0.0 84.7 459.2
-----------------------------------------------------------------------------------------------------------------------
Total....................... 249.2 879.7 2,614.6 1,466.6 403.9 3,372.0 7.6 6,826.4 15,819.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 4--Average Annual Cost After Implementation
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Websites........................ $19.9 $65.1 $215.1 $124.2 $40.5 $164.7 $0.6 $111.7 $741.9
Mobile apps..................... 0.01 0.04 0.03 0.00 0.00 0.21 0.00 0.04 0.33
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 935.7 935.7
Primary and secondary course N/A 4.7 1.9 4.0 N/A 105.9 N/A N/A 116.5
remediation....................
Third-party website remediation. 0.6 3.2 12.1 7.2 1.9 9.2 0.0 7.4 41.6
-----------------------------------------------------------------------------------------------------------------------
Total....................... 20.5 73.1 229.2 135.4 42.5 280.1 0.6 1,054.8 1,836.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 5--10-Year Average Annualized Cost, 3 Percent Discount Rate
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.00 $0.10 $0.66 $0.55 $1.30 $0.41 $0.00 $0.06 $3.09
Websites........................ 38.9 126.4 405.2 231.2 68.4 312.4 1.1 217.9 1,401.5
Mobile apps..................... 1.5 5.9 10.5 0.1 0.0 42.2 0.1 7.2 67.7
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 1,100.9 1,100.9
Primary and secondary course N/A 7.9 3.1 6.7 N/A 176.9 N/A N/A 194.6
remediation....................
Third-party website remediation. 1.1 6.1 22.9 13.4 3.3 17.6 0.0 14.4 78.7
-----------------------------------------------------------------------------------------------------------------------
Total....................... 41.5 146.4 442.3 251.9 73.0 549.6 1.2 1,340.6 2,846.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 6--10-Year Average Annualized Cost, 7 Percent Discount Rate
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.00 $0.12 $0.77 $0.64 $1.52 $0.48 $0.00 $0.07 $3.61
Websites........................ 41.6 135.2 429.6 244.5 71.8 331.8 1.2 233.5 1,489.1
Mobile apps..................... 1.8 6.7 12.0 0.2 0.0 47.7 0.2 8.3 76.9
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 1,097.5 1,097.5
Primary and secondary course N/A 8.0 3.1 6.8 N/A 179.2 N/A N/A 197.1
remediation....................
Third-party website remediation. 1.2 6.5 24.3 14.1 3.4 18.7 0.0 15.4 83.7
-----------------------------------------------------------------------------------------------------------------------
Total....................... 44.6 156.6 469.8 266.1 76.8 577.9 1.3 1,354.8 2,947.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 7--Annual Benefit Once Full Implementation
[Millions]
----------------------------------------------------------------------------------------------------------------
Without
Benefit type Visual Other relevant relevant State and Total
disability disability \a\ disabilities local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users..... $549.6 $751.3 $2,858.5 N/A $4,159.4
[[Page 51989]]
Time savings--new users......... 222.4 695.0 N/A 600.6 1,518.1
Time savings--mobile apps....... 51.5 70.5 268.1 N/A 390.1
Time savings--education......... 693.5 1,205.8 3,157.8 N/A 5,057.1
Educational attainment.......... 7.2 255.6 N/A N/A 262.8
-------------------------------------------------------------------------------
Total benefits.............. 1,524.2 2,978.3 6,284.3 600.6 11,387.5
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
relevant disabilities.''
Table 8--10-Year Average Annualized Benefits, 3 Percent Discount Rate
[Millions]
----------------------------------------------------------------------------------------------------------------
Without
Benefit type Visual Other relevant relevant State and Total
disability disability \a\ disabilities local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users..... $463.6 $633.8 $2,411.6 N/A $3,509.1
Time savings--new users......... 187.6 586.4 N/A 506.7 1,280.7
Time savings--mobile apps....... 43.5 59.4 226.2 N/A 329.1
Time savings--education......... 504.7 878.8 2,307.6 N/A 3,691.1
Educational attainment.......... 13.8 492.4 N/A N/A 506.2
-------------------------------------------------------------------------------
Total benefits.............. 1,213.2 2,650.9 4,945.4 506.7 9,316.3
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
relevant disabilities.''
Table 9--10-Year Average Annualized Benefits, 7 Percent Discount Rate
[Millions]
----------------------------------------------------------------------------------------------------------------
Without
Benefit type Visual Other relevant relevant State and Total
disability disability \a\ disabilities local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users..... $451.4 $617.1 $2,347.7 N/A $3,416.1
Time savings--new users......... 182.7 570.8 N/A 493.3 1,246.8
Time savings--mobile apps....... 42.3 57.9 220.2 N/A 320.4
Time savings--education......... 478.9 834.2 2,191.3 N/A 3,504.4
Educational attainment.......... 12.3 437.2 N/A N/A 449.5
-------------------------------------------------------------------------------
Total benefits.............. 1,167.6 2,517.1 4,759.1 493.3 8,937.2
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
relevant disabilities.''
Table 10--10-Year Average Annualized Comparison of Costs and Benefits
------------------------------------------------------------------------
3% Discount 7% Discount
Benefit type rate rate
------------------------------------------------------------------------
Average annualized costs (millions)..... $2,846.6 $2,947.9
Average annualized benefits (millions).. 9,316.3 8,937.2
Net benefits (millions)................. 6,469.7 5,989.3
Cost-to-benefit ratio................... 0.3 0.3
------------------------------------------------------------------------
2. Baseline Conditions
To estimate the costs and benefits of the proposed rule, baseline
web accessibility of government websites and baseline disability
prevalence need to be considered both in the presence and absence of
the proposed rule over the 10-year analysis period. For these analyses,
the Department assumed that the number of governments would remain
constant over the 10-year horizon for which the Department projects
costs and benefits. This is in line with the trend of total government
units in the United States, which rose by only 19 government units
(representing a 0.02 percent increase) between 2012 and 2017.\186\ The
Department assumes that the total number of government websites scales
with the number of governments, and that the number of government
websites that each government maintains would remain constant for the
10-year period with or without the rule. The Department notes, however,
that if the number of government websites increases over time, both
costs and
[[Page 51990]]
benefits would increase accordingly, and because benefits are estimated
to be larger than costs, this would only create a larger net benefit
for the rule. The Department also assumes constant rates of disability
over the 10-year horizon.\187\ Finally, the ways in which government
websites are used and the types of websites (e.g., Learning Management
Systems and Content Management Systems) are assumed to be constant due
to a lack of data.
---------------------------------------------------------------------------
\186\ U.S. Census Bureau, Census of Governments 2017--Public use
Files (Jan. 2017), https://www.census.gov/data/datasets/2017/econ/gus/public-use-files.html [https://perma.cc/UG79-5MVM]; U.S. Census
Bureau, Census of Governments 2012--Public use Files (Jan. 2012),
https://www.census.gov/data/datasets/2012/econ/gus/public-use-files.html [https://perma.cc/7UPP-H9WN].
\187\ Recent trends in disability prevalence vary across
surveys, with some finding an increase in recent years and others
finding no change. Due to uncertainty, the Department assumed no
change in prevalence rates over the next ten years. U.S. Census
Bureau, 2021 SIPP: Estimates of Disability Prevalence (Aug. 30,
2022), https://www.census.gov/programs-surveys/sipp/tech-documentation/user-notes/2021-usernotes/estim-disabilty-preval.html
[https://perma.cc/6BJB-XX96].
---------------------------------------------------------------------------
Costs to test and remediate websites were estimated based on the
level of effort needed to reach full compliance with WCAG 2.1 Level AA
from the level of observed compliance during the Department's automated
and manual accessibility checking from September 2022 through October
2022. The Department did not feel confident quantifying baseline
conformity with proposed requirements.\188\ Baseline accessibility of
mobile apps and password-protected course content was understood
through literature, which estimated costs to make those materials WCAG
2.1 Level AA compliant, implicitly defining baseline conditions.
---------------------------------------------------------------------------
\188\ Though SortSite does give what percentile a website falls
into as far as accessibility, it does not give a raw ``accessibility
score.''
---------------------------------------------------------------------------
Most literature on current website accessibility has not
historically tested websites against the same sets of standards, so
comparing results from studies over time to find trends in
accessibility is challenging. Additionally, the types of websites
tested, and their associated geographies, tend to vary from study to
study, compounding the difficulty of extracting longitudinal trends in
accessibility. There are, however, some studies that have evaluated the
change in accessibility for the same websites in different time
periods, such as a 2014 paper that continued a study of Alabama website
accessibility from 2002.189 190 That study found almost no
change in accessibility from the previous 2002 study.\191\ Although
most accessibility studies do not take this longitudinal approach,
their conclusions, regardless of the standards against which websites
are checked, are generally that websites are not fully accessible. For
example, a 2006 study found that 98 percent of State home pages did not
meet WCAG 1.0 Level AA guidelines.\192\ Another 2006 study found that
only 18 percent of municipal websites met section 508 standards.\193\
And 14 years later, a 2021 study found that 71 percent of county
websites evaluated did not conform to WCAG 2.0, and the remaining 29
percent only partially conformed to the standards.\194\ Given the
minimal progress in web accessibility over the last 20 years, the
Department does not expect that compliance with WCAG 2.1 Level AA would
improve significantly in the absence of the rule.
---------------------------------------------------------------------------
\189\ Andrew Potter, Accessibility of Alabama Government
websites, 29 Journal of Government Information 303 (2002), https://doi.org/10.1016/S1352-0237(03)00053-4 [https://perma.cc/5W29-YUHK].
\190\ Norman Youngblood, Revisiting Alabama State website
Accessibility, 31 Government Information Quarterly 476 (2014),
https://doi.org/10.1016/j.giq.2014.02.007 [https://perma.cc/PUL4-QUCD].
\191\ Potter (2002) found that 80 percent of State websites did
not pass section 508 standards, and Youngblood (2014) found that 78
percent of those same websites still did not meet section 508
standards 12 years later. Andrew Potter, Accessibility of Alabama
Government websites, 29 Journal of Government Information 303
(2002), https://doi.org/10.1016/S1352-0237(03)00053-4 [https://perma.cc/5W29-YUHK]; Norman Youngblood, Revisiting Alabama State
website Accessibility, 31 Government Information Quarterly 476
(2014), https://doi.org/10.1016/j.giq.2014.02.007 [https://perma.cc/PUL4-QUCD].
\192\ Tanya Goette et al., An Exploratory Study of the
Accessibility of State Government websites, 5 Universal Access in
the Information Society 41 (Apr. 20, 2006), https://link.springer.com/article/10.1007/s10209-006-0023-2 [https://perma.cc/6SD9-KRFT].
\193\ Jennifer S. Evans-Cowley, The Accessibility of Municipal
Government websites, 2 Journal of E-Government 75 (2006), https://www.tandfonline.com/doi/abs/10.1300/J399v02n02_05. A Perma archive
link was unavailable for this citation.
\194\ Yang Bai et al., Accessibility of Local Government
websites: Influence of Financial Resources, County Characteristics
and Local Demographics, 20 Universal Access in the Information
Society 851 (2021), https://link.springer.com/article/10.1007/s10209-020-00752-5 [https://perma.cc/YM6G-Y7TY]. The Department
notes that although these studies discuss State or local government
conformance with the section 508 standards, those standards only
apply to the Federal Government, not to State or local governments.
---------------------------------------------------------------------------
3. Number of Affected Governments and Individuals
The proposed regulation will affect all State and local government
entities \195\ by requiring them to comply with WCAG 2.1 Level AA. The
Department used the 2017 Census of Governments to determine the number
of affected governments, disaggregated by government entity type as
defined by the Census Bureau.\196\ The Department estimates the number
of government entities affected by the proposed rule in Table 11. To
account for differences in government characteristics, the Department
stratified the government entities by population size and analyzed
impacts of the rule to each type of government entity within each
population size category. The Department assumes that the number of
governments would remain constant throughout the 10-year analysis
period with or without the rule.
---------------------------------------------------------------------------
\195\ The PRIA summary and PRFA frequently refer generally to
``governments,'' which is intended to include only State or local
governments covered by this rulemaking.
\196\ U.S. Census Bureau, Census of Governments 2017--Public use
Files (Jan. https://www.census.gov/data/datasets/2017/econ/gus/public-use-files.html [https://perma.cc/UG79-5MVM].
\197\ See Section 2.1, Number of Governments, in the
accompanying PRIA for the Department's methodology.
Table 11--Number of Governments by Government Entity Type \197\
----------------------------------------------------------------------------------------------------------------
Population of
Type of government entity less than Population of Total
50,000 50,000 or more
----------------------------------------------------------------------------------------------------------------
State........................................................... N/A \a\ 51 51
County.......................................................... 2,105 926 3,031
Municipal....................................................... 18,729 766 19,495
Township........................................................ 16,097 156 16,253
Special district................................................ \b\ 38,542 N/A 38,542
School district................................................. 11,443 779 12,222
U.S. territory.................................................. 2 3 5
Public university............................................... \b\ 744 N/A 744
Community college............................................... \b\ 1,146 N/A 1,146
-----------------------------------------------
[[Page 51991]]
Total (no higher education)................................. 86,918 2,681 89,599
-----------------------------------------------
Total (with higher education)........................... 88,808 2,681 91,489
----------------------------------------------------------------------------------------------------------------
\a\ Washington, DC is included as a State for purposes of this table and the following analysis.
\b\ Special district, public university, and community college data do not include population. For these tables,
they are displayed as small.
The Department expects the benefits of this proposed regulation
will accrue to all individuals using State and local government
entities' services, but particularly to those with certain types of
disabilities. WCAG 2.1 Level AA primarily benefits individuals with
vision, hearing, cognitive, and manual dexterity disabilities.\198\ To
identify persons with those disabilities, the Department relied on the
U.S. Census Bureau's Survey of Income and Program Participation
(``SIPP'') for reasons described further in the Department's full
PRIA.\199\
---------------------------------------------------------------------------
\198\ See Section VI.A.5.b of this preamble for further
information.
\199\ See U.S. Census Bureau, Survey of Income and Program
Participation--About this Survey (Aug. 2022), https://www.census.gov/programs-surveys/sipp/about.html [https://perma.cc/Z7UH-6MJ8].
---------------------------------------------------------------------------
Using SIPP 2021 data, as shown in Table 12, the Department
estimates that 4.8 percent of adults have a vision disability, 7.5
percent have a hearing disability, 10.1 percent have a cognitive
disability, and 5.7 percent have a manual dexterity disability. Due to
the incidence of multiple disabilities, the total share without any of
these disabilities is 80.1 percent.\200\
---------------------------------------------------------------------------
\200\ These estimates may miss some individuals due to
underreporting. Some individuals with temporary disabilities may
also not respond in the affirmative and may be missed. We note,
however, that people with temporary disabilities may not always
qualify as having a disability covered by the ADA.
Table 12--Disability Prevalence Counts, SIPP 2021
----------------------------------------------------------------------------------------------------------------
Marginal Marginal
Disability type Prevalence Number prevalence number \a\
rate (%) (millions) rate \a\ (%) (millions)
----------------------------------------------------------------------------------------------------------------
Vision.......................................... 4.8 12.2 4.8 12.2
Hearing......................................... 7.5 19.0 6.1 15.3
Cognitive....................................... 10.1 25.5 6.7 16.9
Manual dexterity................................ 5.7 14.3 2.3 5.7
None of the above............................... 80.1 202.3 80.1 202.3
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau. https://www.census.gov/programs-surveys/sipp/data/datasets/2021-data/2021.html.
\a\ Individuals with multiple qualifying disabilities are counted within the first disability category listed
(e.g., if someone has a cognitive and vision disability, they are included in the vision disability prevalence
rate).
4. Compliance Cost Analysis
For State and local Government entities to comply with the proposed
rule, they will have to invest time and resources to make inaccessible
web and mobile app content accessible. Based on a review of the
accessibility of a sample of State and local government entities'
websites taken between September and November 2022, the Department has
found that most government websites and mobile apps will require
accessibility testing and remediation because they do not meet the
success criteria of WCAG 2.1 Level AA. In addition, the proposed rule
will generally require public postsecondary educational institutions
and primary and secondary schools to provide accessible course content
to students with disabilities at the time that the schools knew or
should have known that a student with a disability is enrolled in a
class and would be unable to access the content available on the
password-protected website for that class (the rule provides a similar
requirement for parents with disabilities in the primary and secondary
school context). The Department performed analyses to estimate the
costs to test and remediate inaccessible websites, mobile apps, and
education course content. Estimated total costs of the rule can be
found in Table 3 above. The monetized costs are also summarized further
in the following subsections.
a. Regulatory Familiarization Costs
Regulatory familiarization refers to the time needed for
professional staff members to become familiar with the requirements of
new regulations. This may include time spent reading the rule itself,
but more commonly it refers to time spent reviewing guidance documents
provided by the Department, advocacy groups, or professional
organizations. It does not include time spent identifying current
compliance levels or implementing changes. It also does not include
training time to learn the nuances of WCAG 2.1 Level AA.
The Department has estimated regulatory familiarization costs to be
$27.2 million. The summary of the Department's regulatory
familiarization calculations is included in Table 13, and the
Department's analysis is explained in more detail in Section 3.2,
Regulatory Familiarization Costs, of the full PRIA. Average annualized
regulatory familiarization costs over 10 years, using a 7 percent
discount rate, are $3.6 million.
---------------------------------------------------------------------------
\201\ See Section 3.2, Regulatory Familiarization Costs, in the
accompanying PRIA for the Department's methodology.
Table 13--Regulatory Familiarization Costs \201\
------------------------------------------------------------------------
Variable Value
------------------------------------------------------------------------
Potentially affected governments........................ 91,489
Average hours per entity................................ 3
[[Page 51992]]
Loaded wage rate........................................ $98.98
Base wage \a\....................................... $49.49
Adjustment factor................................... 2.00
Cost year 1 ($1,000s)................................... $27,167
Annual cost years 2-10 ($1,000s)........................ $0
Average annualized cost, 3% discount rate ($1,000s)..... $3,092
Average annualized cost, 7% discount rate ($1,000s)..... $3,615
------------------------------------------------------------------------
\a\ 2021 Occupational Employment and Wage Survey (OEWS) median wage for
software and web developers, programmers, and testers (SOC 15-1250).
b. Website Testing, Remediation, and O&M Costs
The proposed rule uses WCAG 2.1 Level AA as the standard for State
and local government entities' websites. To assess costs to State and
local government entities, the Department employed multistage
stratified cluster sampling to randomly select government entities and
their websites. To account for variability in website complexity and
baseline compliance with WCAG 2.1 between government types, the
Department then sampled and assessed costs based on each government
type. Each identified website within the second-stage sample was tested
for accessibility using a two-pronged approach of automated and manual
testing to estimate the number of accessibility errors present on each
site. The Department estimated remediation costs for government
websites based on these manual and automated accessibility reports. The
cost of remediating a website was calculated by estimating the amount
of time it would take to fix each accessibility error identified on
that website and multiplying that time by the 2021 Occupational
Employment and Wage Survey (``OEWS'') median wage for software and web
developers, programmers, and testers and by a factor of two to account
for benefits and overhead.\202\
---------------------------------------------------------------------------
\202\ U.S. Bureau of Labor Statistics, May 2021 National
Occupational Employment and Wage Estimates United States (Mar. 31,
2022), https://www.bls.gov/oes/current/oes_nat.htm#15-0000 [https://perma.cc/U2JE-ZXAL].
---------------------------------------------------------------------------
Mobile app costs were analyzed separately as described in Section
VI.A.4.c of this preamble. Further, costs associated with the
remediation of PDFs and the captioning of video and audio media hosted
on government websites were estimated separately, in order to better
capture the nuanced costs associated with remediating these types of
content.
For costs of PDF remediation, the Department calculated both
software costs and remediation time, given that access to some PDF
editing software equipped with accessibility functionality is necessary
to ensure PDFs are accessible. The Department estimated the amount of
time needed to remediate existing PDFs covered by the proposed rule by
determining an average amount of time needed to make a pre-existing PDF
compliant with WCAG 2.1 Level AA and estimating the number of covered
PDFs hosted on State and local government entities' websites requiring
remediation.
For costs of captioning, two governments were randomly selected
from each government type, for a total of 28 governments selected. The
Department compiled a list of all videos and audio files associated
with each website. The Department then made a determination about
whether the video or audio media required captions and recorded their
durations. The durations of YouTube and Vimeo videos were imputed from
the mean duration of non-YouTube and non-Vimeo videos, computed across
all 28 governments. The Department estimated that, for those 28
entities, captioning is needed for: 1,640 minutes of non-YouTube and
non-Vimeo videos, 378 minutes of audio files, and 23,794 minutes of
YouTube and Vimeo videos. This adds up to a total captioning time of
25,811 minutes for the 28 governments. The Department then scanned
consumer prices and, based on that scan, applied an upper bound rate of
$15 per minute to caption to the total captioning time, yielding an
estimated cost of $387,200 across the 28 governments. For these same
governments, the total estimated website remediation costs are $8.1
million. Thus, the ratio of captioning costs to website remediation
costs is 4.8 percent. This ratio represents the estimated mean
percentage increase in website remediation costs when accounting for
video and audio content requiring captions--including content posted to
external sites and platforms such as YouTube and Vimeo. This mean
percentage was applied uniformly to all government types to scale up
the website remediation costs to account for video and audio content.
The Department's assessment of these costs is included in the full PRIA
and summarized in Table 14.
In addition, the Department estimated testing costs by evaluating
the pricing of several commercial web accessibility checkers that could
be used in tandem with manual testing. The Department then derived an
average cost to test and remediate all websites of a given government
entity for each government type and size. Initial website testing and
remediation costs are summarized in Table 14, and the methodologies
used to calculate these costs are fully described in Section 3.3,
website Testing, Remediation, and O&M Costs, in the full PRIA.
Table 14--Total Initial Website Testing and Remediation Costs
[Millions] \203\
----------------------------------------------------------------------------------------------------------------
Video and
Website PDF audio Total initial
Type of Government entity Testing costs remediation remediation captioning costs
costs costs costs
----------------------------------------------------------------------------------------------------------------
State........................... $28.3 $141.1 $22.9 $6.7 $199.0
County (small).................. 9.1 35.4 15.9 1.7 62.2
County (large).................. 87.7 433.2 44.4 20.6 585.9
Municipality (small)............ 268.8 1,260.1 112.7 60.0 1,701.5
Municipality (large)............ 61.8 304.2 45.0 14.5 425.5
Township (small)................ 185.5 876.1 89.5 41.7 1,192.8
Township (large)................ 3.8 18.0 2.1 0.9 24.7
Special district................ 61.4 247.0 13.8 11.8 333.9
U.S. territory (small).......... 0.1 0.6 0.4 0.0 1.2
U.S. territory (large).......... 0.6 3.0 0.7 0.1 4.5
School district (small)......... 175.1 813.5 55.7 38.7 1,083.0
[[Page 51993]]
School district (large)......... 85.2 421.4 24.1 20.1 550.8
Public university............... 73.4 362.7 26.7 17.3 480.1
Community college............... 98.0 483.4 30.9 23.0 635.3
-------------------------------------------------------------------------------
Total....................... 1,138.8 5,399.6 484.9 257.1 7,280.3
----------------------------------------------------------------------------------------------------------------
In addition to initial testing and remediation costs associated
with making existing web content accessible, the Department also
estimated O&M costs, which State and local government entities would
incur after the initial implementation phase. These O&M costs cover
ongoing activities required under the rule to ensure that new web
content meets WCAG 2.1 Level AA such as websites and new social media
posts.
---------------------------------------------------------------------------
\203\ See Section 3.3, website Testing, Remediation, and O&M
Costs, in the accompanying PRIA for the Department's methodology.
---------------------------------------------------------------------------
The Department estimates O&M costs will be composed of (1) a fixed
cost for technology to assist with creating accessible content, as well
as (2) a variable cost that scales according to the size and type of
content on the website. In general, entities whose websites have higher
remediation costs are likely to have a higher O&M burden, as
remediation cost is one useful measure of the amount of web content
that must conform to WCAG 2.1 Level AA. As such, the Department
believes that the initial remediation costs serve as a reasonable basis
for scaling future O&M costs. However, regardless of their initial
remediation burden, governments may be able to mitigate their ongoing
costs by developing systems early in the implementation period to
ensure that accessibility considerations are incorporated at every
stage of future content creation.
Annual O&M costs are estimated to be significantly smaller than
remediation costs because (1) the amount of new material added each
year will generally be less than the current amount of content and (2)
the cost to make new content accessible is significantly smaller than
to remediate existing content. One vendor estimates that making content
accessible during the development phase is 3-10 times faster, and
consequently less expensive, than remediating web content after a
website has been fully launched.\204\ Given the estimate that new web
content is 3-10 times faster to make accessible than existing content,
the Department concluded that allocating 10 percent of the time
originally used to test and remediate sites to O&M each year would be
more than sufficient to ensure future content is accessible.
---------------------------------------------------------------------------
\204\ Level Access, The Road to Digital Accessibility, https://www.levelaccess.com/the-road-to-digital-accessibility/ [https://perma.cc/4972-J8TA].
---------------------------------------------------------------------------
Table 15 displays the undiscounted annual O&M costs for each
government type. The total annual cost across all State and local
government entities is estimated to be $741.9 million. O&M costs are
estimated to accrue over the implementation period following the same
schedule described for initial costs. Large governments will incur 100
percent of annual O&M costs starting in Year 3 following promulgation
of the proposed rule, and small governments would incur these full O&M
costs beginning in Year 4. For more on annual O&M costs, please see
Section 3.3.8, Operating and Maintenance (``O&M'') Costs, of the
accompanying PRIA.
---------------------------------------------------------------------------
\205\ See Section 3.3.8, Operating and Maintenance (O&M) Costs,
in the accompanying PRIA for the Department's methodology.
Table 15--Annual O&M Costs, by Government Type
[Thousands] \205\
------------------------------------------------------------------------
Total
Undiscounted undiscounted
Type of Government entity annual O&M annual O&M
costs, per costs for all
entity \a\ entities
------------------------------------------------------------------------
State................................... $390.3 $19,906.4
County (small).......................... 3.1 6,470.7
County (large).......................... 63.4 58,677.8
Municipality (small).................... 9.2 172,517.7
Municipality (large).................... 55.6 42,622.7
Township (small)........................ 7.6 121,724.7
Township (large)........................ 15.9 2,482.2
Special district........................ 1.1 40,513.9
U.S. territory (small).................. 57.9 115.8
U.S. territory (large).................. 149.2 447.7
School district (small)................. 9.6 109,531.3
School district (large)................. 70.8 55,156.1
Public university....................... 64.6 48,081.1
Community college....................... 55.5 63,644.5
-------------------------------
Total............................... 8.1 741,892.6
------------------------------------------------------------------------
\a\ This column presents the mean annual O&M cost across all
governments, including those that do not have a website.
[[Page 51994]]
The Department assumes that initial testing and remediation costs
would be uniformly distributed across the number of implementation
years for each entity type. In aggregate, it was assumed that large
entities would incur 50 percent of their initial testing and
remediation costs during each of Year 1 and Year 2 following the
promulgation of the rule, and that small entities would incur 33
percent of their initial testing and remediation costs during each of
the first three years following the promulgation of the rule. Total
projected website costs over 10 years are displayed in Table 16, and
are discussed in Section 3.3.9 of the full PRIA. Present value (``PV'')
and average annualized costs are displayed using both a 3 percent and 7
percent discount rate.
Table 16--Total Projected 10-Year Website Costs \206\
------------------------------------------------------------------------
Cost
Time period (millions)
------------------------------------------------------------------------
Year 1.................................................. $2,911.0
Year 2.................................................. 3,206.8
Year 3.................................................. 2,049.8
Year 4.................................................. 741.9
Year 5.................................................. 741.9
Year 6.................................................. 741.9
Year 7.................................................. 741.9
Year 8.................................................. 741.9
Year 9.................................................. 741.9
Year 10................................................. 741.9
PV of 10-year costs, 3% discount rate................... 11,954.8
Average annualized costs, 3% discount rate.............. 1,401.5
PV of 10-year costs, 7% discount rate................... 10,458.6
Average annualized costs, 7% discount rate.............. 1,489.1
------------------------------------------------------------------------
c. Mobile App Testing, Remediation, and O&M Costs
---------------------------------------------------------------------------
\206\ See Section 3.3.9, Total Costs for Website Testing and
Remediation, in the accompanying PRIA for the Department's
methodology.
---------------------------------------------------------------------------
Mobile apps offer convenient access to State and local government
entities' services, programs, and activities. According to a 2021 U.S.
Census Bureau report, in 2018, smartphones and tablet devices were
present in 84 percent and 63 percent of U.S. households,
respectively.\207\ Mobile apps are relatively new compared to websites,
and a different technology. Existing tools to evaluate website
accessibility cannot reasonably be applied to mobile apps and cannot be
easily altered for mobile app evaluation. The tools that do exist to
evaluate mobile app accessibility are largely geared towards app
developers and often require access to mobile app coding.\208\
Literature related to accessibility for mobile software is also sparse,
which may be attributed to the relative lack of tools available to
assess mobile app accessibility compared with the tools available to
assess website accessibility.\209\ The Department expects that these
resources will grow as a result of this rulemaking and a resulting
greater demand for mobile app accessibility resources.
---------------------------------------------------------------------------
\207\ Michael Martin, Computer and internet Use in the United
States: 2018, American Community Survey Reports (Apr. 2021), https://www.census.gov/content/dam/Census/library/publications/2021/acs/acs-49.pdf [https://perma.cc/ST79-PKX5].
\208\ See id.
\209\ See id.
---------------------------------------------------------------------------
Under the proposed rule, mobile apps that State and local
government entities make available to members of the public or use to
offer services, programs, and activities to members of the public must
adhere to WCAG 2.1 Level AA. To evaluate costs associated with mobile
app compliance, a simple random sample of five entities was selected
for each type of government. As described in more detail in Section
3.3.2, Government and Website Sampling, in the accompanying PRIA,
governments were stratified by size when sampled.
State and local Government entities are obligated to ensure that
mobile apps they make available or use to offer services, programs, and
activities to members of the public are accessible. However, as with
websites, the Department only identified mobile apps created directly
for a government. The Department did not include mobile apps developed
and managed by third parties and used by the sampled government
entities (``external mobile apps'') because the Department was unable
to find existing data or literature on the cost to remediate these
apps, which may differ substantially from internal mobile apps.
Additionally, many of these external mobile apps are used by multiple
government clients, so our sample would overcount these apps. However,
unlike websites, the Department has not included costs for third-party
mobile apps as a separate cost, because the necessary data are
unavailable. Exclusion of third-party developed mobile apps from this
analysis may underestimate costs. The Department believes this
undercount is offset elsewhere. For example, for State and local
government entities' mobile apps used to offer services, programs, and
activities to members of the public, the Department assumed all non-
compliant material would be remediated, but in reality, some material
that is not actively being used will likely be archived or removed.
To estimate the number of mobile apps controlled by State and local
government entities, the Department calculated the average number of
identified mobile apps per government entity in the sample, by entity
type. The results of these calculations are presented below in Table
17. This was multiplied by the number of government entities for each
respective government type (see Table 11) to estimate the number of
mobile apps controlled by each government type. Estimates of the total
number of mobile apps controlled by each government type are presented
below, in Table 18. These calculations are discussed further in Section
3.4.1.1, Mobile App Estimation, of the PRIA.
---------------------------------------------------------------------------
\210\ See Section 3.4.1.1, Mobile App Estimation, in the
accompanying PRIA for the Department's methodology.
Table 17--Average Number of Mobile Apps by Government Type \210\
----------------------------------------------------------------------------------------------------------------
Population Population
Type of Government entity less than more than Total
50,000 50,000
----------------------------------------------------------------------------------------------------------------
State........................................................... N/A 4.40 4.40
County.......................................................... 0.20 0.60 0.32
Municipal....................................................... 0.00 1.00 0.04
Township........................................................ 0.00 0.20 0.00
Special district................................................ 0.00 [\a\] 0.00
School district................................................. 0.40 1.40 0.46
U.S. territory.................................................. 0.50 5.33 3.40
Public university............................................... 1.20 [\a\] 1.20
[[Page 51995]]
Community college............................................... 0.20 [\a\] 0.20
-----------------------------------------------
Total (special districts and higher education).............. [\a\] [\a\] 0.03
-----------------------------------------------
Total (all else)............................................ 0.10 1.00 0.15
----------------------------------------------------------------------------------------------------------------
[\a\] Special district, public university, and community college data do not include population. For tables in
Section VI.A.4.c of this preamble, they are displayed as entities with populations less than 50,000.
Table 18--Total Estimated Number of Mobile Apps by Government Type \211\
----------------------------------------------------------------------------------------------------------------
Population Population
Type of Government entity less than more than Total
50,000 50,000
----------------------------------------------------------------------------------------------------------------
State........................................................... N/A 224 224
County.......................................................... 421 556 977
Municipal....................................................... 0 766 766
Township........................................................ 0 31 31
Special district................................................ 0 [\a\] 0
School district................................................. 4,577 1,091 5,668
U.S. territory.................................................. 1 16 17
Public university............................................... 893 [\a\] 893
Community college............................................... 229 [\a\] 229
-----------------------------------------------
Total (special districts and higher education).............. 1,122 [\a\] 1,122
-----------------------------------------------
Total (all else)............................................ 4,999 2,684 7,683
----------------------------------------------------------------------------------------------------------------
[\a\] Special district, public university, and community college data do not include population. For tables in
Section VI.A.4.c of this preamble, they are displayed as entities with populations less than 50,000.
As the Department describes more fully in its PRIA, there is a lack
of literature related to accessibility testing guidelines, tools, and
costs for mobile apps. Because of this, the Department assumed that
costs to test and modify a mobile app for compliance with WCAG 2.1
Level AA success criteria would be a percentage of the cost to develop
an ``average'' mobile app, based on the limited literature the
Department found related to making mobile apps accessible. Using best
professional judgment, the Department assumed that costs to test and
modify an existing mobile app for accessibility will be greater than
half of the cost to develop a mobile app from scratch, but less than
the total cost of developing a new mobile app. Specifically, the
Department assumed that the cost to test and modify a mobile app for
accessibility will be 65 percent of the cost to develop a new mobile
app. The Department seeks the public's input on this assumption. The
Department used mobile app development cost data made public by the
mobile app developer SPD Load in 2022 to estimate an average mobile app
development cost of $105,000.\212\ This results in an average mobile
app accessibility testing and modification cost of $68,250 (65 percent
of $105,000). Some mobile apps may be more complex than others, and
therefore more expensive to test and modify for accessibility.\213\ The
Department thus used file size as a proxy for mobile app complexity in
its analysis.
---------------------------------------------------------------------------
\211\ Id.
\212\ SPD Load, How Much Does It Cost to Develop an App in 2022?
Cost Breakdown, https://spdload.com/blog/app-development-cost/
[https://perma.cc/Y2RM-X7VR].
\213\ Sudeep Srivastava, What Differentiates a $10,000 Mobile
App From a $100,000 Mobile App?, appinventiv (May 6, 2022), https://appinventiv.com/blog/mobile-app-development-costs-difference/
[https://perma.cc/5RBB-W7VP].
---------------------------------------------------------------------------
Table 19 shows the average costs associated with testing and
modifying an existing mobile app to conform with WCAG 2.1 Level AA.
Generally, the estimated costs differ due to variability in the file
size. The average cost of initial mobile app testing and remediation
was then multiplied by the total estimated number of mobile apps for
each respective government type and size (see Table 18) to generate an
estimated cost to all government entities in each respective category
(Table 20). Underlying calculations to these tables are discussed
further in Section 3.4, Mobile App Testing, Remediation, and O&M Costs,
of the accompanying PRIA.
---------------------------------------------------------------------------
\214\ See Section 3.4, Mobile App Testing, Remediation, and O&M
Costs, in the accompanying PRIA for the Department's methodology.
Table 19--Average Cost To Modify a Mobile App by Government Type \214\
------------------------------------------------------------------------
Population Population
Type of Government entity less than more than
50,000 50,000
------------------------------------------------------------------------
State................................... N/A $61,045
County.................................. $59,356 50,478
Municipal............................... N/A 121,922
Township................................ N/A 41,624
[[Page 51996]]
Special district........................ \a\ N/A [\a\]
School district......................... 68,250 61,670
U.S. territory.......................... 134,991 65,971
Public university....................... \a\ 52,185 [\a\]
Community college....................... \a\ 77,478 [\a\]
-------------------------------
Total (special districts and higher 64,832 [\a\]
education).........................
-------------------------------
Total (all else).................... 87,532 67,118
------------------------------------------------------------------------
\a\ Special district, public university, and community college data do
not include population. For tables in Section VI.A.4.c of this
preamble, they are displayed as entities with populations less than
50,000.
Table 20--Initial Mobile App Costs
[Millions] \215\
----------------------------------------------------------------------------------------------------------------
Population Population
Type of Government entity less than more than Total
50,000 50,000
----------------------------------------------------------------------------------------------------------------
State........................................................... N/A $13.7 $13.7
County.......................................................... $25.0 28.0 53.0
Municipal....................................................... 0.0 93.4 93.4
Township........................................................ 0.0 1.3 1.3
Special district................................................ \a\ 0.0 [\a\] 0.0
School district................................................. 312.4 67.3 379.7
U.S. territory.................................................. 0.1 1.1 1.2
Public university............................................... \a\ 46.6 [\a\] 46.6
Community college............................................... \a\ 17.8 [\a\] 17.8
-----------------------------------------------
Total (special districts and higher education).............. 64.3 [\a\] 64.3
-----------------------------------------------
Total (all else)............................................ 337.5 204.7 542.3
----------------------------------------------------------------------------------------------------------------
\a\ Special district, public university, and community college data do not include population. For tables in
Section VI.A.4.c of this preamble, they are displayed as entities with populations less than 50,000.
Costs for the proposed rule are expected to be incurred at
different times for each type of government entity because of
differences in proposed implementation timelines. Government entities
serving populations over 50,000 will have two years to implement the
proposed rule, and costs are assumed to be distributed evenly across
the two implementation years. Government entities serving populations
of less than 50,000 and special districts will have three years to
implement the proposed rule, and costs are assumed to be distributed
evenly among the three implementation period years. Public
postsecondary institutions are generally associated with large
governments, and consequently, for purposes of this analysis, the
Department assumes that public postsecondary institutions will have two
years to implement the rule.
---------------------------------------------------------------------------
\215\ Id.
---------------------------------------------------------------------------
Additionally, the Department assumed that State and local
Government entities will incur O&M costs associated with accessibility
maintenance starting after the proposed rule's implementation period.
The Department, using best professional judgment due to the absence of
applicable data, assumed that added O&M costs associated with
accessible mobile apps are equal to 10 percent of O&M costs associated
with an average mobile app. The Department used a publicly available
data range to calculate average annual mobile app O&M costs and
estimate the annual cost of O&M for an average mobile app.\216\ The
estimated average annual cost of O&M per mobile app ($375) was
multiplied by 10 percent to calculate expected additional O&M costs
incurred as a result of compliance with the proposed rule ($37.50). The
Department then multiplied expected additional O&M costs per app by the
total estimated number of mobile apps. Undiscounted costs of compliance
with the proposed rule over a 10-year period, PV of costs, and average
annualized costs are presented in Table 21 and discussed further in
Section 3.4, Mobile App Testing, Remediation, and O&M Costs, of the
accompanying PRIA.
---------------------------------------------------------------------------
\216\ Michael Georgiou, Cost of Mobile App Maintenance in 2022
and Why It's Needed, Imaginovation Insider (June 30, 2022), https://imaginovation.net/blog/importance-mobile-app-maintenance-cost/
[https://perma.cc/UY5K-6FKC].
\217\ See Section 3.4, Mobile App Testing, Remediation, and O&M
Costs, in the accompanying PRIA for the Department's methodology.
Table 21--Timing of Mobile App Costs
[Millions] \217\
------------------------------------------------------------------------
Time period Costs
------------------------------------------------------------------------
Year 1.................................................. $247.1
Year 2.................................................. 247.1
Year 3.................................................. 112.6
Year 4.................................................. 0.3
Year 5.................................................. 0.3
Year 6.................................................. 0.3
Year 7.................................................. 0.3
Year 8.................................................. 0.3
Year 9.................................................. 0.3
Year 10................................................. 0.3
PV of 10-year costs, 3% discount rate................... 577.7
Average annualized costs, 3% discount rate.............. 67.7
PV of 10-year costs, 7% discount rate................... 540.1
[[Page 51997]]
Average annualized costs, 7% discount rate.............. 76.9
------------------------------------------------------------------------
d. Postsecondary Education
The proposed rule distinguishes between public postsecondary
institutions' public-facing websites, mobile apps, and password-
protected course material. Costs were estimated separately for these
three categories.
Public-facing websites were assessed for current levels of
compliance using SortSite, a software application the Department used
to assess accessibility in tandem with manual testing.\218\ For this
cost component, unstratified random samples were drawn consisting of 10
public four-year universities and 10 public community colleges.\219\
Whereas the Department searched for and scanned other State and local
government entities' secondary websites, only the main site was scanned
for postsecondary institutions. Instead, the Department estimated that
postsecondary institutions' secondary websites would incur testing and
remediation costs equal to 1.1 times the testing and remediation costs
of their main websites. Postsecondary institutions were found to have
main website costs that were most similar to those of large school
districts and large counties, and for those two types of government
entities, secondary websites incur 1.1 times the cost of the main
websites, on average. Large school districts and large counties also
have 5.7 times as many secondary websites as main websites and their
secondary websites have 0.25 times the number of PDFs as their main
websites. Those ratios were used in estimating numbers of higher
education secondary websites and secondary website PDF costs. For a
more complete discussion of the Department's methodology, please see
Section 3.5.1, Postsecondary Education Overview, of the accompanying
PRIA.
---------------------------------------------------------------------------
\218\ The Department's basis for selecting SortSite, as well as
its methods for using SortSite in tandem with manual testing, are
described in more detail in the full PRIA.
\219\ Technical colleges were included with community colleges.
---------------------------------------------------------------------------
Postsecondary institutions' mobile app costs were assessed
separately using the Department's methodology for mobile app
calculation. This is discussed in full in the Department's PRIA.
Given that website accessibility scanning software is not
compatible with password-protected sites, costs to remediate online
course content were estimated with a different method. As an overview,
the Department used a probabilistic model to estimate the proportion of
courses that would require remediation during the first year of
remediating course content under the proposed rule (the first year
after implementation). As discussed in more detail in the full PRIA,
the Department determined as a result of its modeling that virtually
all remaining courses would be remediated in the second year of
remediating course content. The Department does not expect that courses
will be made accessible in a significant way in the absence of the
rule, though this assumption is based on literature on trends in web
accessibility rather than statistical modeling. The high rate at which
courses will need remediation under the proposed rule is a notable
finding of the Department's analysis, which has major implications for
students with disabilities. The Department also conducted sensitivity
analyses to ensure the PRIA accounts for a range of possibilities on
course remediation.
O&M costs for course content were estimated at a higher annual rate
than for websites to account for new courses that may be introduced,
additional captioning associated with video lectures, and the like.
This is further described in the Department's full PRIA.
Under the proposed rule, password-protected postsecondary course
content (e.g., course content provided through third-party learning
management systems) must be made accessible when an institution is on
notice that a student with a relevant disability is enrolled in a
particular class. Using data from the 2021 SIPP, the Department
estimated the prevalence of students with either a hearing, vision,
manual dexterity, or cognitive disability. The Department estimated
prevalence values for individuals aged 18-22 to account for the
conventional school age population that attends four-year institutions
and used an age range of 17-29 for community college students.\220\ The
Department recognizes that these age ranges do not represent the entire
postsecondary population, and that they may underestimate disability
prevalence by excluding older populations who may be more likely to
have disabilities. However, given the need to define the population's
age in order to estimate disability prevalence, the Department feels
that these are appropriate ranges for this cost estimation.
---------------------------------------------------------------------------
\220\ The range 17-29 was calculated from National Center for
Education Statistics data and includes 80 percent of the community
college population.
---------------------------------------------------------------------------
The Department understands that only a portion of students with
disabilities will require course remediation. Data in the High School
Longitudinal Study (``HSLS'') of 2009, conducted by the National Center
for Education Statistics (``NCES''), suggests that 37 percent of
students with disabilities report their disability to their college or
university.\221\ Applying this proportion to the disability prevalence
rates for students with a vision, hearing, dexterity, or cognitive
disability, yields the percent of individuals aged 18-22 and 17-29 who
will report a relevant disability to their college or university.
However, because the HSLS reports the fraction of students with any
disability who report their disability to the school, and not the
fraction of students with either a vision, hearing, dexterity, or
cognitive disability who report their disability to the school, this
number may be an over- or underestimate depending on the variability in
the likelihood that students with specific disabilities report their
disability to the school. To estimate average class sizes, the
Department used Common Data Set (``CDS'') reports from 21 public
universities and 10 community colleges, resulting in an average of 29.8
students per class in public universities and 20.4 students per class
in community colleges.\222\
---------------------------------------------------------------------------
\221\ Institute of Education Sciences, Use of Supports Among
Students with Disabilities and Special Needs in College Supp. Tbl. 2
(Apr. 2022), https://nces.ed.gov/pubs2022/2022071/index.asp [https://perma.cc/RSY3-TQ46].
\222\ See Common Data Set Initiative, https://commondataset.org/
(last visited June 15, 2023).
---------------------------------------------------------------------------
When estimating the percent of courses that will be remediated in
each year, the Department found that, within two years following
implementation, virtually all postsecondary courses will have been
remediated. Specifically, the probability function discussed in Section
3.5.2.2, Probabilistically Calculating the Rate of Course Remediation,
in the Department's PRIA shows that by the end of year four (two years
after postsecondary schools begin to remediate course content), 96
percent of courses offered by public four-year and postgraduate
institutions and 90 percent of courses offered by community colleges
will have been remediated. The Department assumes that despite having
some courses for which remediation has not been requested by year five,
postsecondary institutions will finish remediation on their own to
preempt requests in the
[[Page 51998]]
following year. For institutions that wait to remediate outstanding
courses, the costs will be negligible because the number of outstanding
courses is projected to be low, and because in year three entities will
likely have ensured that their LMS supports accessibility and that
their instructors have appropriate tools and training. These findings
about the rapidity of course remediation speak to the necessity and
importance of this rule. Table 22 shows the assumptions, data, and
methods from Section 3.5, Postsecondary Education, of the accompanying
PRIA to estimate course costs.
---------------------------------------------------------------------------
\223\ See Section 3.5, Postsecondary Education, in the
accompanying PRIA for the Department's methodology.
\224\ Beverly Farr et al., A Needs Assessment of the
Accessibility of Distance Education in the California Community
College System Part II: Costs and Promising Practices Associated
with Making Distance Education Courses Accessible, MPR Associates,
Inc. (May 2009), https://files.eric.ed.gov/fulltext/ED537862.pdf
[https://perma.cc/LFT7-R2CL].
\225\ Cyndi Rowland, GOALS Cost Case Study: Cost of Web
Accessibility in Higher Education, Gaining Online Accessible
Learning through Self-Study (Dec. 2014), https://www.ncdae.org/documents/GOALS_Cost_Case_Study.pdf [https://perma.cc/UH6V-SBTU].
Table 22--Course Remediation Costs \223\
----------------------------------------------------------------------------------------------------------------
Public Community
Description university college Source
----------------------------------------------------------------------------------------------------------------
Age range..................................... 18-22 17-29 NCES.
Average class size............................ 29.8 20.4 CDS Data.
Prevalence of disabilities.................... 0.13 0.12 SIPP Data.
Share of students with a disability who notify 0.37 0.37 HSLS.
school.
Share of students who have a relevant 0.05 0.04 Calculation.
disability and notify school.
Total number of courses offered............... 1,803,277 965,097 Calculation.
Number of courses remediated first semester... 900,406 383,766 Calculation.
Cost per course............................... $1,690 $1,690 Farr et al. (2009).\224\
NCDAE.\225\
First semester cost for all institutions $1,521.6 $648.5 Calculation.
(millions).
First semester mean cost per institution $2.0 $0.6 Calculation.
(millions).
Number of courses remediated second semester.. 563,214 269,294 Calculation.
Second semester course remediation costs $951.8 $455.1 Calculation.
(millions).
First year cost (millions).................... $2,473.4 $1,103.6 Calculation.
Courses remediated in Year 2.................. 339,656 312,037 Calculation.
Year 2 course remediation cost (millions)..... $574.0 $527.3 Calculation.
Total costs to remediate all courses $3,047.4 $1,630.9 Calculation.
(millions).
Mean cost per institution to remediate all $4.1 $1.4 Calculation.
courses (millions).
Mean cost per student to remediate all courses $340.7 $341.4 Calculation.
Yearly O&M cost per course.................... $253 $253 Calculation.
Total yearly O&M cost (millions).............. $609.5 $326.2 Calculation.
Mean O&M cost per institution................. $819,198 $285,380 Calculation.
----------------------------------------------------------------------------------------------------------------
The Department calculated the proportion of classes requiring
remediation on a per school basis using a methodology outlined in the
PRIA, and with that number calculated the total number of classes
offered by a school requiring remediation. The Department developed a
per-course cost estimate because it believes that password-protected
course content is unique in its combination of level of complexity,
volume of material, and distribution of content compared to other
government web content. These qualities distinguish it from other
government entities' web contents, which necessitate a separate
estimation approach. Though literature on the cost of remediating
course content to WCAG 2.1 Level AA is sparse, the Department used
findings from Farr et al. (2009) \226\ and the National Center on
Disability and Access to Education (``NCDAE'') GOALS Course Cost Case
Study (2014),\227\ to estimate the cost to remediate a course to be
$1,690. Each of these studies presented ranges of cost estimates for
``simple'' and ``complex'' courses.\228\ To generate an average course
cost, the Department took the midpoint of the given ranges and
generated a weighted average from the two studies' ``simple'' and
``complex'' course cost estimates using survey data from Farr et al.
(2009) that estimated 40 percent of classes to be complex, and 60
percent of classes to be simple.\229\ A full explanation of the
Department's methodology on course cost estimates can be found in
Section 3.5.2.3 of the accompanying PRIA.
---------------------------------------------------------------------------
\226\ Beverly Farr et al., A Needs Assessment of the
Accessibility of Distance Education in the California Community
College System Part II: Costs and Promising Practices Associated
with Making Distance Education Courses Accessible, MPR Associates,
Inc. (May 2009), https://files.eric.ed.gov/fulltext/ED537862.pdf
[https://perma.cc/LFT7-R2CL].
\227\ Cyndi Rowland et al., GOALS Cost Case Study: Cost of Web
Accessibility in Higher Education, Gaining Online Accessible
Learning through Self-Study (Dec. 2014), https://www.ncdae.org/documents/GOALS_Cost_Case_Study.pdf [https://perma.cc/UH6V-SBTU].
\228\ ``Simple'' courses are loosely defined as courses that
mostly house images and documents.
\229\ See Farr et al., at 5. As part of this study, experts were
interviewed on online learning to estimate the proportion of classes
which are simple or complex. These estimates are discussed
throughout the paper and are first referenced on page 5.
---------------------------------------------------------------------------
The Department then multiplied the sum of the number of all
institutions' first semester courses requiring remediation by the cost
per course to estimate a total first-semester cost to remediate
courses. The Department expects the first semester to be the most
expensive as it will be the semester with the smallest amount of
existing compliance, and therefore the greatest number of classes that
are out of compliance with WCAG 2.1 Level AA. In subsequent semesters,
those courses that have been previously remediated will already be
accessible, meaning the total pool of classes needing remediation will
decrease over time. The Department estimates that 46 percent of all
classes offered between community colleges and four-year and
postgraduate institutions will be remediated in the first semester,
costing a total of $2.2 billion. On a per-student basis, this is $170
for four-year and postgraduate institutions and $136 for community
colleges. A full explanation of the Department's methodology can be
[[Page 51999]]
found in Section 3.5, Postsecondary Education of the accompanying PRIA.
To calculate second-semester classes requiring remediation, the
Department used the same proportion of classes needing remediation but
calculated a new number of classes that are eligible for remediation.
The Department estimates that there is a 50 percent overlap in classes
offered during semester one and semester two. Using that estimate, the
Department calculated the number of second semester classes eligible
for remediation as half the number of classes in the first semester
plus the courses which are offered both semesters but were not
remediated in semester one. The Department estimates that 563,214
public four-year and postgraduate courses and 269,294 community college
courses will need to be remediated in semester two, which will cost a
total of $1.4 billion. Because the Department's estimated rate of
remediation is relatively high (the modeling above yields a 75 percent
remediation rate in semester one for four-year institutions, and a 60
percent remediation rate in semester one for community colleges), the
Department assumed that by the end of the second year of remediation,
all postsecondary institutions will have remediated all currently
offered courses. For the Department's detailed methodology, see Section
3.5.2.2, Probabilistically Calculating the Rate of Course Remediation,
of the accompanying PRIA.
Following this remediation period, the Department estimates yearly
O&M costs to be 15 percent of initial remediation costs, amounting to
$253 per class. As discussed more fully in its PRIA, the Department
estimates general O&M costs to be 10 percent of total remediation
costs. Given that course content often contains video-based lectures
requiring closed captioning, and content that is updated more
frequently than general web content, the Department assumes a 50
percent higher O&M cost for course content than for general web
content. Additionally, this 50 percent higher estimate accounts for the
cost of developing new accessible courses. The full 10-year costs of
the rule for course remediation and O&M costs are presented in Table
23, along with PV and annualized costs. A full explanation of the
Department's methodology can be found in Section 3.5, Postsecondary
Education, of the PRIA.
Table 23--Projected 10-Year Costs for Course Remediation \230\
[Millions]
----------------------------------------------------------------------------------------------------------------
Public Community
Institution type university college Total
----------------------------------------------------------------------------------------------------------------
Year 1.......................................................... $0 $0 $0
Year 2.......................................................... 0 0 0
Year 3.......................................................... 2,473 1,104 3,577
Year 4.......................................................... 1,069 748 1,817
Year 5.......................................................... 609 326 936
Year 6.......................................................... 609 326 936
Year 7.......................................................... 609 326 936
Year 8.......................................................... 609 326 936
Year 9.......................................................... 609 326 936
Year 10......................................................... 609 326 936
PV, 3% discount rate............................................ 6,147 3,245 9,391
PV, 7% discount rate............................................ 5,051 2,658 7,708
Annualized cost, 3% discount rate............................... 721 380 1,101
Annualized cost, 7% discount rate............................... 719 378 1,097
----------------------------------------------------------------------------------------------------------------
e. Elementary and Secondary Class or Course Content Remediation
---------------------------------------------------------------------------
\230\ See Section 3.5, Postsecondary Education, in the
accompanying PRIA for the Department's methodology.
---------------------------------------------------------------------------
Under the proposed rule, password-protected course content (e.g.,
content provided through third-party learning management systems) in a
public elementary or secondary school generally must be made accessible
when a student with a disability is enrolled in the course or when a
student is enrolled whose parent has a disability. This section
summarizes the Department's analysis of the costs for elementary and
secondary education institutions to make this content accessible, which
is discussed in depth in Section 3.6, Elementary and Secondary Course
Content Remediation, of the PRIA. Much of the methodology used is
similar to that for course remediation costs for postsecondary
education. The Department estimates that annualized costs with a 3
percent discount rate for elementary and secondary education
institutions are $195 million. Additionally, these institutions will
incur some O&M costs after implementation.
NCES publishes a list of all public schools in the United States
with enrollment counts by grade level for kindergarten (grade K)
through 12th grade.\231\ Best available estimates suggest 66 percent of
all schools (public and private) have an LMS and the Department assumed
that this number will not change significantly in the next 10 years in
the presence or absence of this rule.\232\ The Department made this
assumption due to a lack of available data, and the Department notes
that even if there were an increase in the percent of schools with an
LMS, this would increase both costs and benefits, likely resulting in a
nominal impact to the net benefits of the rule. Using these data, the
number of public schools with an LMS was computed by grade level. The
Department estimated the number of unique classes or courses offered
per school and per grade level, and then used this value to calculate
the total number of LMS classes or courses that must be remediated in
each school.\233\
[[Page 52000]]
Table 24 presents the assumptions for the number of unique LMS classes
or courses offered per grade level, based on the Department's best
professional judgment. The number of unique classes or courses is lower
for earlier grade levels \234\ and increases in higher grade levels as
education becomes more departmentalized (i.e., students move from
teacher to teacher for their education in different subjects) and
schools generally introduce more elective offerings as students
progress toward grade 12.\235\
---------------------------------------------------------------------------
\231\ Institute of Education Sciences, ELSI Elementary/Secondary
Information System 2020-21 Public School Student Enrollments by
Grade, National Center for Education Statistics, https://nces.ed.gov/ccd/elsi/default.aspx. A Perma archive link was
unavailable for this citation.
\232\ Frank Catalano, Pandemic Spurs Changes in the Edtech
Schools Use, From the Classroom to the Admin Office, EdSurge (Jan.
2021), https://www.edsurge.com/news/2021-01-26-pandemic-spurs-changes-in-the-edtech-schools-use-from-the-classroom-to-the-admin-office [https://perma.cc/N2Y3-UKM2].
\233\ To the extent that the percentage of public schools with
an LMS is lower than the percentage of private schools, the analysis
presented here overestimates the true elementary and secondary class
or course remediation costs.
\234\ Standardized curricula and relatively lower mean
enrollments in earlier grade levels tend to decrease the number of
unique class or course offerings per grade level, which would reduce
the number of LMS classes or courses that must be remediated.
\235\ According to NCES, in the 2017-2018 school year, 24
percent of elementary school classes were departmentalized, compared
to 93 percent of middle schools and 96 percent of high schools.
National Teacher and Principal Survey, NCES, https://nces.ed.gov/surveys/ntps/tables/ntps1718_fltable06_t1s.asp [https://perma.cc/8XAK-XK4L].
Table 24--Calculation of Elementary and Secondary Class or Course Remediation Costs, by Grade Level
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost to
Number of Number of Number of LMS Number of remediate a Total cost
Grade level schools [a] schools with courses per courses to year-long (millions)
an LMS [b] grade level remediate course
--------------------------------------------------------------------------------------------------------------------------------------------------------
K....................................................... 52,155 34,422 1 34,422 $182 $6.3
1....................................................... 52,662 34,757 1 34,757 182 6.3
2....................................................... 52,730 34,802 1 34,802 182 6.3
3....................................................... 52,661 34,756 1 34,756 182 6.3
4....................................................... 52,363 34,560 1 34,560 182 6.3
5....................................................... 50,903 33,596 7 235,172 364 85.7
6....................................................... 35,032 23,121 7 161,848 364 59.0
7....................................................... 29,962 19,775 7 138,424 364 50.5
8....................................................... 30,161 19,906 7 139,344 364 50.8
9....................................................... 23,843 15,736 14 220,309 994 219.0
10...................................................... 24,200 15,972 14 223,608 994 222.3
11...................................................... 24,322 16,053 14 224,735 994 223.4
12...................................................... 24,304 16,041 14 224,569 994 223.2
-----------------------------------------------------------------------------------------------
Total............................................... N/A N/A N/A N/A N/A 1,165.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] This represents the number of schools with nonzero enrollment in the listed grade level. As such, a single school can be represented on multiple
rows.
[b] This represents the number of schools with an LMS and nonzero enrollment in the listed grade level.
As discussed in its assessment of postsecondary education costs,
the Department estimated costs to remediate a single postsecondary
course using two estimates from Farr et al. (2009) \236\ and the NCDAE
GOALS Course Case Study.\237\ Those papers also estimate the cost of
remediating a ``simple'' college course. The Department assumes that a
high school course is equivalent in its complexity to a ``simple''
college course and used estimates on time spent on homework to scale
course costs for different grade levels. For a more complete discussion
of course cost estimates, please see Section 3.6 of the accompanying
PRIA. Summing across all grade levels yields total costs of $1.2
billion. Table 25 presents the costs incurred in the first 10 years
following promulgation of the rule, by entity type. For each year after
completing class or course remediation, the Department assumed
elementary and secondary school districts would incur an O&M cost equal
to 10 percent of the initial remediation cost. The Department assumes
costs will not be incurred until the year required by the rule (Year 4
for small entities and Year 3 for large entities) because classes or
courses would not be remediated until necessary. The Department expects
that elementary and secondary classes or courses will be remediated at
a faster rate than postsecondary courses, given that the proposed rule
generally requires elementary and secondary educational web content to
be accessible if requested by either the child or their parent(s),
whereas postsecondary course provisions in the rule do not provide for
parent(s) to request accessible web content. As such, the Department
expects that virtually all class or course content will be remediated
by elementary and secondary educational institutions in the first year
required under the rule.
---------------------------------------------------------------------------
\236\ Beverly Farr et al., A Needs Assessment of the
Accessibility of Distance Education in the California Community
College System Part II: Costs and Promising Practices Associated
with Making Distance Education Courses Accessible, MPR Associates,
Inc. (May 2009), https://files.eric.ed.gov/fulltext/ED537862.pdf
[https://perma.cc/LFT7-R2CL].
\237\ Cyndi Rowland et al., GOALS Cost Case Study: Cost of web
accessibility in higher education, Gaining Online Accessible
Learning through Self-Study, (Dec. 2014), https://www.ncdae.org/documents/GOALS_Cost_Case_Study.pdf [https://perma.cc/UH6V-SBTU].
Table 25--Projected 10-Year Course Remediation Costs
[Millions]
----------------------------------------------------------------------------------------------------------------
Cost for small Cost for large
Time period school school Total costs
districts districts
----------------------------------------------------------------------------------------------------------------
Year 1.......................................................... $0 $0 $0
Year 2.......................................................... 0 0 0
Year 3.......................................................... 0 551 551
Year 4.......................................................... 614 55 670
Year 5.......................................................... 61 55 117
[[Page 52001]]
Year 6.......................................................... 61 55 117
Year 7.......................................................... 61 55 117
Year 8.......................................................... 61 55 117
Year 9.......................................................... 61 55 117
Year 10......................................................... 61 55 117
PV, 3% discount rate............................................ 842 818 1,660
PV, 7% discount rate............................................ 692 692 1,384
Annualized cost, 3% discount rate............................... 99 96 195
Annualized cost, 7% discount rate............................... 99 99 197
----------------------------------------------------------------------------------------------------------------
f. Costs for Third-Party Websites and Mobile Apps
Some government entities use third-party websites and mobile apps
to provide government services, programs, and activities. The
Department estimated costs to modify existing third-party websites that
are used to provide government services. Third-party costs related to
mobile apps are unquantified because the Department was unable to find
existing data or literature on the subject.
These numbers should be interpreted with caution because they
include significant uncertainty. Limited information exists regarding
the number of third-party websites and mobile apps employed by
government entities. Additionally, little research has been conducted
assessing how government entities use third-party website and mobile
app services.
To estimate costs incurred from third-party website compliance, the
Department used a convenience sub-sample of the full sample of
government entities. This sub-sample includes 106 government entities
and was not stratified to ascertain representativeness among various
government entities. The Department used SortSite inventory reports to
identify third-party websites that provide government services on
behalf of sampled government entities. Counts were then adjusted to
reflect that some third-party websites are used by more than one
government. For each government entity type, the Department calculated
the ratio of third-party websites in the sample to total government
websites in the sample. Across all entity types, the average ratio is
0.042, or 4.2 percent.
The Department reviewed the literature for reputable estimates of
the average cost of modifying a third-party website that provides
government services to the public for WCAG 2.1 AA compliance. In the
absence of existing reputable estimates, the Department opted to use
average government website testing and remediation costs generated in
this study as an approximation. Government website testing and
remediation cost estimates for each government entity type were
multiplied by the third-party to government website ratios to estimate
costs from third-party website compliance with WCAG 2.1 AA.
In aggregate, there are estimated to be 0.04 third-party websites
for every government website. If all costs were passed along to
governments, governments would incur additional costs for remediating
third-party websites equivalent to about 4 percent of the costs to test
and remediate their own websites. The present value of total 10-year
costs incurred from third-party website compliance is estimated to be
$671.7 million at a discount rate of 3 percent and $587.8 at a discount
rate of 7 percent. These values are displayed in Table 26.
Table 26--Projected Total Costs of Remediating Third-Party Websites
[Millions]
------------------------------------------------------------------------
Total costs
Time period (all entities)
------------------------------------------------------------------------
Year 1.................................................. $165.2
Year 2.................................................. 181.9
Year 3.................................................. 112.1
Year 4.................................................. 41.6
Year 5.................................................. 41.6
Year 6.................................................. 41.6
Year 7.................................................. 41.6
Year 8.................................................. 41.6
Year 9.................................................. 41.6
Year 10................................................. 41.6
PV of 10-year costs, 3% discount rate................... 671.7
Annualized costs, 3% discount rate...................... 78.7
PV of 10-year costs, 7% discount rate................... 587.8
Annualized costs, 7% discount rate...................... 83.7
------------------------------------------------------------------------
g. Sensitivity and Uncertainty Analyses of Costs
The Department's cost estimates rely on a variety of assumptions
based on literature and other information that, if changed, could
impact the cost burden to different government entities. To better
understand the uncertainty behind its cost estimates, the Department
performed several sensitivity analyses on key assumptions in its cost
model. A full summary of the Department's high and low-cost estimates
is in Table 28. Other assumptions not altered here also involve a
degree of uncertainty and so these low and high estimates should not be
considered absolute bounds.
For website testing and remediation costs, the Department adjusted
its estimate of the effectiveness of automated accessibility checkers
such as SortSite at identifying accessibility errors. In its primary
analysis, the Department relied on its own manual assessment of several
web pages to estimate the fraction of remediation time that the errors
SortSite caught accounted for among all errors present. This approach
found that SortSite caught errors corresponding to 50.6 percent of the
time needed to remediate a website, leading to a manual adjustment
factor of 1.98. This manual adjustment factor was multiplied by the
remediation time estimated using the SortSite output for each website
in the sample. Vigo, Brown, and Conway (2013), by contrast, found that
SortSite correctly identified 30 percent of the accessibility errors on
a given website.\238\ This finding is not
[[Page 52002]]
necessarily inconsistent with the results of the Department's analysis,
however, since the paper's authors merely count instances of errors,
without considering the relative severity of errors. Nevertheless, the
Department conservatively replicated its analysis using the 30 percent
estimate for SortSite's comprehensiveness, which amounts to an
adjustment factor of 3.33. This altered assumption resulted in a 10-
year total website testing and remediation cost of $19.2 billion at a 3
percent discount rate, which is $7.2 billion more than the primary
estimate of $12.0 billion. The analysis for estimating costs of
remediating third-party websites was replicated using the same altered
assumption of SortSite's comprehensiveness, resulting in a 10-year
total third-party website testing and remediation cost of $1.1 billion.
This is $400 million more than the primary estimate of $672 million.
---------------------------------------------------------------------------
\238\ Markel Vigo et al., Benchmarking Web Accessibility
Evaluation Tools: Measuring the Harm of Sole Reliance on Automated
Tests, International Cross-Disciplinary Conference on Web
Accessibility (May 2013), https://www.researchgate.net/profile/Markel-Vigo/publication/262352732_Benchmarking_web_accessibility_evaluation_tools_Measuring_the_harm_of_sole_reliance_on_automated_tests/links/56333eee08ae911fcd4a99a7/Benchmarking-web-accessibility-evaluation-tools-Measuring-the-harm-of-sole-reliance-on-automated-tests.pdf . A
Perma archive link was unavailable for this citation.
---------------------------------------------------------------------------
The Department also reexamined its assumptions concerning PDFs that
State and local government entities would choose to remediate. In the
primary analysis, it was assumed that only those PDFs that had last
been modified prior to 2012 would be removed or archived rather than
remediated. This assumption resulted in an estimate that 15 percent of
PDFs currently hosted on government websites would be taken down or
archived. To approximate an upper bound on the number of PDFs
government entities would choose to archive, the Department reconducted
its website cost analysis with the assumption that 50 percent of PDFs
on State and local government entities' websites would be archived or
removed rather than remediated. This calculation resulted in website
costs of $11.6 billion discounted at 3 percent over 10 years, $311
million less than the primary estimate of $12.0 billion. Once again,
the analysis for estimating costs of remediating third-party websites
(described in Section VI.A.4.f of this preamble) was replicated using
this altered PDF archival rate, resulting in a 10-year total third-
party website testing and remediation cost of $654 million. This is $17
million less than the primary estimate of $672 million.
For postsecondary course remediation cost, the Department
calculated costs over an increased timeline to generate a low-cost
estimate. In its initial calculations, the Department estimated
disability prevalence using SIPP data, calculated that the majority of
classes will be remediated in the first year following the
implementation of the rule, and determined that any outstanding classes
will be remediated in the second year. However, the prevalence rates
used from SIPP data are higher estimates than estimates from the
American Community Survey (``ACS''). If the true disability prevalence
of the college population is lower than was estimated for these
analyses, then fewer courses will need remediation per year. The
Department found that in a scenario where one third of courses are
remediated per year, the annualized cost at a 3 percent discount rate
is $992 million, $109 million less than its primary estimate.\239\
---------------------------------------------------------------------------
\239\ The Department chose \1/3\ to create a scenario with a
more flexible remediation timeline, which implies that all courses
get remediated within three years instead of two.
---------------------------------------------------------------------------
To generate a high-cost estimate for higher education, the
Department evaluated a higher per-course remediation cost. In its
primary estimates, the Department used data from two studies that
estimated costs to make a course accessible. These studies were
conducted in 2009 and 2014 respectively, and the online landscape of
postsecondary education has changed since then. COVID-19 and the
subsequent distance learning at higher education institutions may have
increased the amount of course content that is offered through online
portals. If this is the case, it is possible that there is more content
that needs to be remediated than there was at the time of the studies
on which the Department bases its course cost estimates, and that
because of that there is less accessible course content.\240\ To
account for this, the Department used the higher estimates for complex
course remediation given in Farr et al. (2009) and the GOALS Cost Case
Study from the NCDAE to estimate a cost of $1,894 per course (compared
with $1,690 in the primary estimate), and an O&M cost of $284 per
course (compared with $253 in the primary estimate). Under these
conditions, the Department found the annualized cost of course content
remediation to be $1.21 billion, $112 million more than its primary
estimates.
---------------------------------------------------------------------------
\240\ Conversely, it is also possible that a shift to online
learning has made the higher education community more aware of web
accessibility issues, and therefore increased the rate of WCAG 2.1
compliance.
---------------------------------------------------------------------------
To estimate class or course remediation costs for elementary and
secondary institutions, the Department made assumptions about the
number of LMSs that students interface with at each grade level. In
addition, the Department had to estimate the average cost to remediate
each of those LMS's content to be compliant with WCAG 2.1 Level AA. The
Department performed a sensitivity analysis on these assumptions to
create upper and lower bounds on cost.
For the upper bound, the Department increased the number of LMSs
that students interact with in each semester. The Department raised the
assumption from 1 LMS to 2 for students in grades K-4, from 7 LMSs to
10 in grades 5-8, and from 14 LMSs to 20 in grades 9-12. In addition,
the Department created a continuum of costs between its low estimate of
$182 and its high estimate of $994, allocating costs that increase
linearly with each subsequent grade level, and effectively raising the
average cost to remediate class or course content. These changes raised
the annualized cost with a 3 percent discount rate from $195 million to
$312 million.
For the lower bound, the Department adjusted the same parameters
downwards. The Department kept the same estimate of one LMS for grades
K-4, decreased the number of LMSs for grades 5-6 from seven to five,
and decreased the number of LMSs for grades 9-12 from 14 to 10. For
class or course remediation costs, the Department halved the estimated
costs to remediate a class for all grades. When applying these changes,
the annualized cost with a 3 percent discount rate decreased from $195
million dollars to $75 million dollars.
The Department conducted sensitivity analyses to assess the mobile
apps cost model by varying the assumption that the cost to test and
modify an existing mobile app for accessibility is equal to 65 percent
of the cost to build an ``average'' mobile app. In the sensitivity
analysis the Department assumed that State and local government
entities mostly control either ``simple'' or ``complex'' mobile apps,
rather than ``average'' mobile apps. Simple mobile apps are less costly
to build than the average mobile app. The expected cost of building a
simple mobile app is estimated to be $50,000, compared with $105,000
for an average mobile app.\241\ The cost of testing and modifying a
simple mobile app for accessibility is assumed to be 65 percent of the
cost to build a simple mobile app, equal to $32,500. Using this
assumption based on simple mobile apps, PV of total mobile app testing
and remediation
[[Page 52003]]
costs decreases from $597.8 million to $285.7 million.
---------------------------------------------------------------------------
\241\ SPD Load, How Much Does It Cost to Develop an App in 2022?
Cost Breakdown, https://spdload.com/blog/app-development-cost/
[https://perma.cc/Y2RM-X7VR].
---------------------------------------------------------------------------
Conversely, complex mobile apps are costlier to build than both
simple mobile apps and the ``average'' mobile app. The expected cost of
building a complex mobile app is $300,000, compared with $105,000 for
the average mobile app.\242\ The cost to test and modify a complex
mobile app for accessibility is assumed to be 65 percent of the cost to
build a complex mobile app, equal to $195,000. Using this assumption
based on complex mobile apps, PV of total mobile app testing and
remediation costs increase from $597.8 million to $1.1 billion.
---------------------------------------------------------------------------
\242\ Id.
---------------------------------------------------------------------------
The parameters changed for each analysis can be found in Table 27,
and the total aggregated lower and higher estimates can be found in
Table 28. Based on the Department's sensitivity analyses, total 10-year
costs discounted at 7 percent would likely be between $18.4 and $29.5
billion.
The Department's sensitivity analysis parameters are presented in
Table 27, and the Department's sensitivity analyses of total costs are
presented in Table 28.
Table 27--Sensitivity Analysis Parameters
------------------------------------------------------------------------
Cost Bound Variations
------------------------------------------------------------------------
Higher education course Lower estimate... Increased remediation
remediation. timeline.
Higher education course Higher estimate.. Higher course cost.
remediation.
Website costs................. Lower estimate... Increased rate of PDF
archival.
Website costs................. Higher estimate.. Lower effectiveness
of automated
accessibility
checkers.
Mobile app costs.............. Lower estimate... Assume government
apps are ``simple.''
Mobile app costs.............. Higher estimate.. Assume government
apps are
``complex.''
Elementary and secondary class Lower estimate... Assume fewer LMS
or course remediation costs. classes or courses,
lower class or
course cost.
Elementary and secondary class Higher estimate.. Assume more LMS
or course remediation costs. classes or courses,
higher class or
course cost.
------------------------------------------------------------------------
Table 28--Sensitivity Analyses of Total Costs
[Millions]
----------------------------------------------------------------------------------------------------------------
Time period Primary High estimate Low estimate
----------------------------------------------------------------------------------------------------------------
Year 1.......................................................... $3,361 $5,462 $3,145
Year 2.......................................................... 3,646 5,935 3,422
Year 3.......................................................... 6,402 8,986 4,030
Year 4.......................................................... 3,270 3,756 2,716
Year 5.......................................................... 1,836 2,485 2,835
Year 6.......................................................... 1,836 2,485 1,743
Year 7.......................................................... 1,836 2,485 1,743
Year 8.......................................................... 1,836 2,485 1,743
Year 9.......................................................... 1,836 2,485 1,743
Year 10......................................................... 1,836 2,485 1,743
PV of 10-year costs, 3% discount rate........................... 24,302 34,420 21,712
Average annualized costs, 3% discount rate...................... 2,849 4,035 2,545
PV of 10-year costs, 7% discount rate........................... 20,724 29,527 18,407
Average annualized costs, 7% discount rate...................... 2,951 4,204 2,621
----------------------------------------------------------------------------------------------------------------
h. Cost to Revenue Comparison
To consider the relative magnitude of the estimated costs of this
proposed regulation, the Department compares the costs to revenues for
State and local government entities. Because the costs for each
government entity type are estimated to be well below 1 percent of
revenues, the Department does not believe the rule will be unduly
burdensome or costly for public entities.\243\ Costs for each type and
size of government entity are estimated to be well below this 1 percent
threshold.
---------------------------------------------------------------------------
\243\ As noted above and as a point of reference, the United
States Small Business Administration advises agencies that a
potential indicator that the impact of a proposed regulation may be
``significant'' is whether the costs exceed 1 percent of the gross
revenues of the entities in a particular sector, although the
threshold may vary based on the particular types of entities at
issue. The Department estimates that the costs of this rulemaking
for each government entity type are far less than 1 percent of
revenues. See Small Bus. Admin., A Guide for Government Agencies:
How to Comply with the Regulatory Flexibility Act 19 (Aug. 2017),
https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH].
---------------------------------------------------------------------------
The Department estimated the proportion of total local government
revenue in each local government entity type and size using the 2012
U.S. Census Bureau's database on individual local government
finances.\244\ To evaluate which government entities continue to be
small, the Department applied the U.S. Census's Bureau's population
growth rates by State to the population numbers in the individual local
government finances data to estimate 2020 population levels.\245\
---------------------------------------------------------------------------
\244\ U.S. Census Bureau, Historical Data (Oct. 2021), https://www.census.gov/programs-surveys/cog/data/historical-data.html
[https://perma.cc/UW25-6JPZ]. The Department was unable to find more
recent data with this level of detail.
\245\ U.S. Census Bureau, Historical Population Change Data
(1910-2020) (Apr. 26, 2021), https://www.census.gov/data/tables/time-series/dec/popchange-data-text.html [https://perma.cc/RYQ3-VX9Q]. Population numbers in the 2012 data are from different years,
so the Department applied a growth rate based on the specified date
for each entity.
---------------------------------------------------------------------------
To calculate population estimates for independent school districts,
the Department used a methodology that is inconsistent with the
population provisions in the proposed rule's regulatory text because
the local government finances data only include enrollment numbers, not
population
[[Page 52004]]
numbers. Detailed information on this methodology can be found in the
full PRIA.
The Department applied these proportions of governments in each
entity type to the total local government revenue estimate from the
U.S. Census Bureau's State and Local Government Finances by Level of
Government and by State: 2020, updated to 2021 dollars.\246\ Table 29
contains the average annualized cost using a 3 percent and 7 percent
discount rate,\247\ 2020 annual revenue estimates, and the cost-to-
revenue ratios for each entity type and size. The costs are less than 1
percent of revenues in every entity type and size combination, so the
Department believes that the costs of this proposed regulation would
not be overly burdensome for the regulated entities.
---------------------------------------------------------------------------
\246\ U.S. Census Bureau, 2020 State & Local Government Finance
Historical Datasets and Tables (Sept. 20, 2022), https://www.census.gov/data/datasets/2020/econ/local/public-use-datasets.html [https://perma.cc/QJM3-N7SG].
\247\ The estimated costs for dependent community colleges are
not included in this table because the Department is unable to
determine how to distribute these entities' costs across the other
types of State and local entities. Additionally, it is unclear if
all public college and university revenue (e.g., tuition and fees)
are included in the revenue recorded for the State or local entities
on which the school is dependent. Finally, the low cost-to-revenue
ratio for the independent community colleges indicate that these
would not increase the cost to revenue above 1 percent for any
entity type and size.
---------------------------------------------------------------------------
Costs for postsecondary institutions were analyzed separately from
other government entities. For public universities, which tend to be
State dependent, the Department has included costs with State
governments to ensure the ratio of costs to revenues is not
underestimated. For community college independent districts, the
Department has revenue data.
---------------------------------------------------------------------------
\248\ See Section 3.9, Cost to Revenue Comparison, in the
accompanying PRIA.
Table 29--Cost-to-Revenue Ratios by Entity Type and Size \248\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
annualized annualized Annual Cost to Cost to
Type of government entity Size cost cost revenue revenue 3% revenue 7%
(millions) 3% (millions) 7% (millions) discount rate discount rate
discount rate discount rate [a] (%) (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
State..................................... Small....................... N/A N/A N/A N/A N/A
State..................................... Large....................... $867 $877 $2,846,972 0.03 0.03
County.................................... Small....................... 20 21 65,044 0.03 0.03
County.................................... Large....................... 126 135 448,212 0.03 0.03
Municipality.............................. Small....................... 342 362 184,539 0.19 0.20
Municipality.............................. Large....................... 100 108 524,589 0.02 0.02
Township.................................. Small....................... 244 257 55,819 0.46 0.48
Township.................................. Large....................... 8 9 12,649 0.07 0.07
Special district.......................... N/A......................... 73 77 278,465 0.03 0.03
School district [b]....................... Small....................... 366 384 330,746 0.12 0.12
School district [b]....................... Large....................... 208 218 311,614 0.07 0.07
Territory................................. Small....................... 0 0 1,243 0.02 0.02
Territory................................. Large....................... 1 1 38,871 0.00 0.00
Public university [c]..................... N/A......................... N/A N/A N/A N/A N/A
Community college [d]..................... N/A......................... 163 166 38,445 0.44 0.45
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] U.S. Census Bureau, 2020 State & Local Government Finance Historical Datasets and Tables (Sept. 2022), https://www.census.gov/data/datasets/2020/econ/local/public-use-datasets.html [https://perma.cc/QJM3-N7SG]. Inflated to 2021 dollars using GDP deflator.
[b] Excludes colleges and universities.
[c] Almost all public universities are State-dependent; costs included in the State entity type.
[d] Census of Governments data include revenue numbers only for independent community colleges. The costs included correspond to the proportion of the
total number of community colleges that are independent.
5. Benefits Analysis
a. Summary of Benefits for Persons With and Without Relevant
Disabilities
Websites and mobile apps are common resources to access government
services, programs, and activities. For example, during a 90-day period
in summer 2022, there were nearly 5 billion visits to Federal
Government websites.\249\ Aggregate data are unavailable for State and
local government entities' websites, but based on the analysis in
Section 2 of the PRIA, the Department estimates there are roughly
109,900 public entity websites, and based on the analysis in Section
4.3.2 of the PRIA, the Department estimates these websites have 22.8
billion annual visits. Unfortunately, services, programs, and
activities that State and local government entities provide online are
not always fully accessible to individuals with disabilities.
Conformance with WCAG 2.1 Level AA would increase availability of these
resources to individuals with disabilities that affect web and mobile
app access (i.e., vision, hearing, cognitive, and manual dexterity
disabilities). These individuals are referred to as ``individuals with
relevant disabilities'' or ``individuals with certain types of
disabilities.'' Conformance would also result in benefits to
individuals without these disabilities because accessible websites
incorporate features that benefit all users, including individuals with
other types of disabilities and individuals who do not have
disabilities.
---------------------------------------------------------------------------
\249\ General Services Administration Digital Analytics Program,
https://analytics.usa.gov/ [https://perma.cc/2YZP-KCMG] (data
retrieved on Aug. 8, 2022). While this rule will not apply to the
Federal Government, this statistic is provided for analogy to show
the proliferation of government services offered online.
---------------------------------------------------------------------------
This section summarizes the benefits of conformance with WCAG 2.1
Level AA for both individuals with and without relevant disabilities.
The Department calculated the primary types of disabilities impacted by
WCAG 2.1 Level AA and prevalence rates for each disability type. The
Department also considered how individuals without relevant
disabilities may benefit. For purposes of this analysis, ``individuals
without relevant disabilities'' are individuals who do not have vision,
hearing, cognitive, or manual dexterity disabilities; these may be
individuals with other disabilities or
[[Page 52005]]
individuals with no disability. The Department then monetized benefits
where applicable. These monetized benefits are predominantly associated
with time savings. The Department estimates that average annualized
benefits will total $8.9 billion, using a 7 percent discount rate, and
$9.3 billion using a 3 percent discount rate. Finally, the Department
qualitatively described additional benefits that could not be
quantified.
b. Types of Disabilities Affected by Accessibility Standards
Accessibility standards can benefit individuals with a wide range
of disabilities, including vision, hearing, cognitive, speech, and
physical disabilities. The Department focused on those with vision,
hearing, cognitive, and manual dexterity disabilities because WCAG 2.1
Level AA success criteria more directly benefit people with these
disability types.\250\ However, the Department emphasizes that benefits
for other disability types are also important and that excluding those
disabilities may underestimate benefits. Additionally, disability
prevalence rates may underestimate the number of people with a
disability due to underreporting. As part of its analysis, the
Department estimated that 19.9 percent of adults have a relevant
disability for purposes of this analysis. Table 30 presents prevalence
rates for each of these four types of disability.
---------------------------------------------------------------------------
\250\ See W3C[supreg], Introduction to Web Accessibility,
https://www.w3.org/WAI/fundamentals/accessibility-intro/ (Mar. 31,
2022) [https://perma.cc/79BA-HLZY].
---------------------------------------------------------------------------
The number of individuals with disabilities impacted by this rule
may be smaller or larger than the numbers shown here. According to the
Pew Research Center, 27 percent of people have a disability, as
compared to the 19.9 percent figure used in this analysis.\251\
Conversely, not all individuals with vision, hearing, cognitive, or
manual dexterity disabilities may be impacted by the proposed
rulemaking. For example, ``cognitive disabilities'' is a broad category
and some people with cognitive disabilities may not experience the same
benefits from web accessibility that others do.
---------------------------------------------------------------------------
\251\ Susannah Fox & Jan Lauren Boyles, Disability in the
Digital Age, Pew Research Center (Aug. 6, 2012), https://www.pewinternet.org/2012/08/06/disability-in-the-digital-age/
[https://perma.cc/9RBM-PD78].
---------------------------------------------------------------------------
The Department recognizes that accessibility can also produce
significant benefits for individuals without relevant disabilities. For
instance, many individuals without physical disabilities enjoy the
benefits of physical accessibility features currently required under
the ADA. For example, curb ramps, other ramps, and doors with
accessible features can be helpful when pushing strollers or dollies.
In the web context, experts have recognized that accessible websites
are generally better organized and easier to use even for persons
without relevant disabilities.\252\ This can result in benefits to the
general public. The population of persons without relevant disabilities
is derived as the remainder of the population once individuals with the
four disabilities discussed above are removed. The Department estimates
that there are 202.3 million Americans without relevant disabilities.
---------------------------------------------------------------------------
\252\ See W3C[supreg], The Business Case for Digital
Accessibility (Nov. 9, 2018), https://www.w3.org/WAI/business-case/
[https://perma.cc/K5AF-UYWS].
---------------------------------------------------------------------------
Companions \253\ may also benefit from this proposed rulemaking
because they will not need to spend as much time assisting with
activities that an individual with a disability can now perform on
their own. Companions can then spend this time assisting with other
tasks or engaging in other activities. Estimates on the number of
companions vary based on definitions, but according to the AARP, there
are 53 million ``unpaid caregivers'' in the United States.\254\ This
number includes companions to those with disabilities other than
disabilities applicable to web accessibility. There are also 4.7
million direct care workers in the United States.\255\ Benefits to
companions are not quantified, but they are discussed further in
Section VI.A.5.d of this preamble.
---------------------------------------------------------------------------
\253\ A companion may refer to a family member, friend,
caregiver, or anyone else providing assistance.
\254\ AARP National Alliance for Caregiving, Caregiving in the
United States 2020, AARP (May 14, 2020), https://www.aarp.org/ppi/info-2020/caregiving-in-the-united-states.html [https://perma.cc/QBQ2-L94W]. The term ``unpaid caregiver'' as used in the AARP report
is comparable to this analysis' use of the term companion to refer
to family members, friends, caregivers, or anyone else providing
assistance.
\255\ PHI, Understanding the Direct Care Workforce, https://www.phinational.org/policy-research/key-facts-faq/ [https://perma.cc/9DNN-XL23].
Table 30--Disability Prevalence Counts, SIPP 2021
----------------------------------------------------------------------------------------------------------------
Cumulative Cumulative
Disability type Prevalence Number prevalence number [a]
rate (%) (millions) rate [a] (%) (millions)
----------------------------------------------------------------------------------------------------------------
Vision.......................................... 4.8 12.2 4.8 12.2
Hearing......................................... 7.5 19.0 6.1 15.3
Cognitive....................................... 10.1 25.5 6.7 16.9
Manual dexterity................................ 5.7 14.3 2.3 5.7
None of the above............................... 80.1 202.3 80.1 202.3
----------------------------------------------------------------------------------------------------------------
See U.S. Census Bureau, Survey of Income and Program Participation--About this Survey (Aug. 2022), https://www.census.gov/programs-surveys/sipp/about.html [https://perma.cc/Z7UH-6MJ8]; see also Section 4.2, Types of
Disabilities Affected by Accessibility Standards, in the accompanying PRIA for more details on the
Department's findings.
[a] Individuals with multiple qualifying disabilities are counted within the first disability category listed
(e.g., if someone has a cognitive and vision disability, they are included in the vision disability prevalence
rate).
c. Monetized Benefits
The Department monetized five benefits of accessible public entity
websites and mobile apps (Figure 1). The Department's conclusions are
described in this summary, and more detail about its methodology and
assumptions are included in Section 4.3, Monetized Benefits, in the
accompanying PRIA. The five monetized benefits and their estimated
monetary value are:
Time savings for current users of State and local
government entities' websites ($4.2 billion per year),
Time savings for those who switch modes of access (i.e.,
switch from other modes of accessing State and local government
entities' services, programs,
[[Page 52006]]
and activities such as phone or mail to the public entities' website)
or begin to participate (did not previously partake in the State and
local government entities' services, programs, or activities) ($917.4
million per year),
Time savings for current mobile app users ($390.1 million
per year),
Time savings for students and their parents ($5.1 billion
per year), and
Earnings from additional educational attainment ($262.8
million per year).\256\
---------------------------------------------------------------------------
\256\ Even after the implementation period, the size of the
annual benefit increases over time as more cohorts graduate with
additional educational attainment. $262.8 million represents the
annual benefit to one graduating class.
---------------------------------------------------------------------------
All five types of benefits are applicable for those with a relevant
disability. For individuals without a relevant disability, benefits are
limited to time savings for current users of State and local government
entities' websites, current users of mobile apps, and educational time
savings. For State and local government entities, monetized benefits
include time savings from reduced contacts (i.e., fewer interactions
assisting people with disabilities). After calculating current benefit
levels for each benefit type, the Department projected benefits over a
10-year period and took into consideration the implementation period.
The Department also conducted sensitivity analyses and calculated
benefits for regulatory alternatives.
In total, the Department estimated benefits of $8.9 billion per
year on an average annualized basis, using a 7 percent discount rate.
On a per capita basis, this equates to $35 per adult in the United
States.\257\
[GRAPHIC] [TIFF OMITTED] TP04AU23.001
i. Projected 10-Year Benefits
During the implementation period, benefits will be lower. The
proposed rule allows either two or three years for implementation,
depending on the public entity's population. With the exclusion of
educational benefits (discussed below), the Department believes
benefits will fully accrue beginning in Year 4 but that some benefits
will exist during the three implementation years as websites and mobile
apps become more accessible. The Department assumes that in Year 1
benefits are 27 percent of the level of benefits once compliance is
complete; in Year 2 benefits increase to 53 percent; and in Year 3
benefits increase to 80 percent (Table 31).\258\
---------------------------------------------------------------------------
\257\ The Census Bureau estimates 257.9 million adults in the
United States in 2020. U.S. Census Bureau, National Demographic
Analysis Tables: 2020 (Mar. 2022), https://www.census.gov/data/tables/2020/demo/popest/2020-demographic-analysis-tables.html
[https://perma.cc/7WHV-7CPM].
\258\ The Department assumed benefits accrue at a steady rate
over the implementation period. For example, for large entities,
benefits increase from 33 percent in Year 1, to 66 percent in Year
2, and 100 percent in Year 3. For small entities, benefits increase
from 25 percent in Year 1, to 50 percent in Year 2, to 75 percent in
Year 3, and 100 percent in Year 4. The benefits will be 100 percent
accrued in Year 3 for large entities and Year 4 for small entities
because at the beginning of those years, the implementation period
will be over. These accrual rates are weighted by the number of
government websites for small versus large governments. Eighty
percent of websites are for small entities, despite websites being
less common among small entities, because the number of small
governments is much larger than the number of large governments.
---------------------------------------------------------------------------
For course remediation time savings, the Department assumed no
benefits would accrue until the implementation period is complete
because courses will not be remediated until remediation is
requested,\259\ and it is unknown in advance which courses will need to
be remediated. Therefore, in Year 3, once small entities are affected,
63 percent of potential benefits for postsecondary students will accrue
and 53 percent of potential benefits for elementary and secondary
students will accrue. In Year 4, full benefits are reached.\260\
---------------------------------------------------------------------------
\259\ There are circumstances where courses must be remediated
in the absence of a request, such as where an institution should
know about the need for accessible materials. This is described in
detail in the corresponding section of the preamble.
\260\ The Department does not know which institutions are
associated with small or large governments. Therefore, the
Department assumed that four-year institutions are large entities
and community colleges are small entities. For elementary and
secondary schools, the Department used the share of students in
independent school districts who are in small versus large
districts.
---------------------------------------------------------------------------
[[Page 52007]]
For educational attainment, benefits do not accrue until after the
additional education is obtained. For simplicity, benefits are assumed
to begin in Year 5, after two years of implementation followed by two
years of additional educational attainment. The amount of time needed
to obtain additional education varies based on the degree, but the
Department believes two years is an appropriate average. For example,
to move from a high school degree to some college or an associate's
degree would take approximately two years. Similarly, to move from some
college or an associate's degree to a bachelor's degree would also take
approximately two years. The Department only incorporated two years of
implementation because most public colleges are under the purview of
large governments with a two-year implementation period. Average
annualized educational attainment benefits only include additional
earnings over this 10-year period, not over the course of a lifetime.
Table 31--Timing of Benefits
[Millions]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Elementary/ Elementary/ Education
Total benefit Non-education Non-education Postsec. Postsec. secondary secondary Educational attainment attainment
Year (million) accrual rate benefits accrual rate benefits \a\ accrual rate benefits \a\ accrual benefits
(%) (millions) (%) (million) (%) (million) (million)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1................................ $1,619 27 $1,619 0 $0 0% $0 0%...................... $0.0
Year 2................................ 3,239 53 3,239 0 0 0 0 0%...................... 0.0
Year 3................................ 7,756 80 4,858 63 1,447 53 1,452 0%...................... 0.0
Year 4................................ 11,125 100 6,068 100 2,303 100 2,754 0%...................... 0.0
Year 5................................ 11,387 100 6,068 100 2,303 100 2,754 1 cohort................ 263
Year 6................................ 11,650 100 6,068 100 2,303 100 2,754 2 cohorts............... 526
Year 7................................ 11,913 100 6,068 100 2,303 100 2,754 3 cohorts............... 788
Year 8................................ 12,176 100 6,068 100 2,303 100 2,754 4 cohorts............... 1,051
Year 9................................ 12,439 100 6,068 100 2,303 100 2,754 5 cohorts............... 1,314
Year 10............................... 12,702 100 6,068 100 2,303 100 2,754 6 cohorts............... 1,577
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Benefits may begin accruing during the implementation period, but for simplicity, the Department excluded benefits here for these years. The Department only incorporated two years of
implementation because most public colleges are under the purview of large governments with a two-year implementation period.
ii. Sensitivity Analysis of Benefits
The benefits calculations incorporate some assumptions and sources
of uncertainty. Therefore, the Department has conducted sensitivity
analyses on select assumptions to demonstrate the degree of uncertainty
in the estimates. Other assumptions not altered here also involve a
degree of uncertainty and so these low and high estimates should not be
considered absolute bounds.
Average annualized benefits using a 7 percent discount rate are
estimated to be $8.9 billion under the primary conditions. Using the
low estimate assumptions, they are $6.4 billion and under the high
estimate assumptions they are $14.7 billion (Table 32). The variations
used for each benefit type are shown in Table 33.
Table 32--Average Annualized Benefits Sensitivity Analysis
[Millions] \a\
----------------------------------------------------------------------------------------------------------------
Beneficiary Low estimate Primary High estimate
----------------------------------------------------------------------------------------------------------------
Time savings--current users..................................... $2,688.7 $3,416.1 7,284.1
Time savings--new users......................................... 170.3 753.5 1,177.3
Time savings--governments....................................... 83.6 493.3 578.1
Time savings--mobile apps....................................... 252.1 320.4 683.1
Time savings--education......................................... 3,043.7 3,504.4 3,803.5
Educational attainment.......................................... 141.2 449.5 1,167.5
-----------------------------------------------
Total....................................................... 6,379.7 8,937.2 14,693.6
----------------------------------------------------------------------------------------------------------------
\a\ 10-Year average annualized benefits, 7 percent discount rate.
Table 33--Assumptions and Data Sources Varied for Sensitivity Analysis
------------------------------------------------------------------------
Beneficiary Estimate type Variations
------------------------------------------------------------------------
Time savings--current users... Low.............. ACS data for
prevalence rates,
instead of SIPP.
Time savings--current users... High............. Same time reduction
(24%) for all
disabilities.
Time savings--current users... High............. Exclude ``n/a'' from
SEMRUSH output.
Time savings--new users....... Low.............. ACS data for
prevalence rates,
instead of SIPP.
Time savings--new users....... Low.............. Usage gap only closes
by 75%.
Time savings--new users....... Low.............. Lower transaction
time (19 minutes
instead of 25).
Time savings--new users....... Low.............. Fewer transactions (6
instead of 8).
Time savings--new users....... High............. Higher transaction
time (31 minutes
instead of 25).
Time savings--new users....... High............. More transactions (10
instead of 8).
Time savings--governments..... Low.............. ACS data for
prevalence rates,
instead of SIPP.
Time savings--governments..... Low.............. Usage gap only closes
by 75%.
Time savings--governments..... Low.............. Lower transaction
time (7.5 minutes
instead of 10).
Time savings--governments..... Low.............. Fewer transactions
(7.5 instead of 6).
Time savings--governments..... High............. Higher transaction
time (12.5 minutes
instead of 10).
Time savings--governments..... High............. More transactions
(4.5 instead of 6).
Time savings--mobile apps..... Low.............. ACS data for
prevalence rates,
instead of SIPP.
[[Page 52008]]
Time savings--mobile apps..... High............. Same time reduction
(24%) for all
disabilities.
Time savings--mobile apps..... High............. Exclude ``n/a'' from
SEMRUSH output.
Time savings--education....... Low.............. ACS data for
prevalence rates,
instead of SIPP.
Time savings--education....... High............. Same time reduction
(24%) for all
disabilities.
Educational attainment........ Low.............. ACS data for
prevalence rates,
instead of SIPP.
Educational attainment........ Low.............. Smaller share of
achievement gap
closed.
Educational attainment........ High............. Benefits begin in
Year 3, instead of
Year 5.
Educational attainment........ High............. Larger share of
achievement gap
closed.
------------------------------------------------------------------------
For current website users, the Department altered three
assumptions--one for the low estimate and two for the high estimate.
First, disability prevalence rates are much lower using ACS data than
SIPP data. As explained in Section 2.2 of the accompanying PRIA, the
Department believes the SIPP estimates are more appropriate, but ACS
numbers are used here for sensitivity. Using ACS data reduces the
average annual benefits from $3.4 to $2.7 billion. For the high
estimate, rather than assuming the time reduction for individuals with
hearing, cognitive, or manual dexterity is equivalent to individuals
without a hearing disability, the Department assumes the reduction is
equivalent to individuals with vision disabilities. The Department also
excluded websites for which SEMRUSH, an online marketing and research
tool,\261\ did not provide data, rather than assuming values of zero.
These two variations increase benefits from $3.4 billion to $7.3
billion.
---------------------------------------------------------------------------
\261\ For information on this application, see https://www.semrush.com/features/ [https://perma.cc/ZZY5-U42Z].
---------------------------------------------------------------------------
For new website users and cost savings to governments, the
Department altered four assumptions. First, once again, ACS prevalence
rates were used in lieu of SIPP estimates. Second, rather than assuming
website usage becomes equivalent for individuals with and without
relevant disabilities, the Department assumed this gap only closes by
75 percent. Third, the average time spent per transaction was reduced
or increased by 25 percent for the low estimate and high estimate,
respectively. Fourth, the average number of transactions per year was
reduced or increased by 25 percent for the low estimate and high
estimate, respectively. Incorporating these alternative assumptions
reduces the benefits for new users to $170.3 million when the
transactions are reduced or increases the benefits to $1.2 billion when
the transactions are increased, from $753.5 million. For cost savings
to governments, benefits decrease to $83.6 million when transactions
are reduced or increase to $578.1 million when the transactions are
increased, from $493.3 million.
For mobile app users, the Department altered three assumptions.
These are the same assumptions that were discussed above for current
website users (ACS prevalence data, time reduction for individuals with
other disabilities, and exclusion of websites not analyzed by SEMRUSH).
After making these calculations, benefits either decrease to $252.1
million or increase to $683.1 million from $320.4 million.
For time savings for students and parents, the Department altered
two assumptions. The low estimate uses ACS data for prevalence rates
instead of SIPP. The high estimate uses a 24 percent time savings for
those with hearing, cognitive, and manual dexterity disabilities
instead of 21 percent. After making these calculations, benefits
decrease to $3.0 billion or increase to $3.8 billion from $3.5 billion.
For benefits of additional educational attainment, the Department
altered three assumptions. First, ACS prevalence rates were used
instead of SIPP. Second, benefits begin to accrue in Year 3 rather than
Year 5. Third, the Department changed the share of the educational
achievement gap that would be closed from 10 percent to 5 and 15
percent. After making these calculations, benefits decrease to $141.2
million or increase to $1.2 billion from $449.5 million.
d. Unquantified Benefits
This rulemaking is being promulgated under the ADA--a Federal civil
rights law. Congress stated that a purpose of the ADA is ``to provide a
clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.'' \262\ This
proposed rule is intended to further the ADA's broad purpose by helping
to eliminate discrimination against people with disabilities in public
entities' web content and mobile apps that are made available to the
public or are used to offer their services, programs, and activities.
Access to such services, programs, and activities is critical to
furthering the Nation's goal, as articulated in the ADA, to ensure
``equality of opportunity, full participation, independent living, and
economic self-sufficiency'' for people with disabilities.\263\ This
access is also critical to promoting the exercise of fundamental
constitutional rights, such as the rights to freedom of speech,
assembly, association, petitioning, and due process of law. This
proposed rule, therefore, implicates benefits like dignity,
independence, and advancement of civil and constitutional rights for
people with disabilities. Such benefits can be difficult or impossible
to quantify yet provide tremendous benefit to society. The January 20,
2021, Presidential Memorandum titled ``Modernizing Regulatory Review''
\264\ states that the regulatory review process should fully account
for regulatory benefits that are difficult or impossible to quantify.
Many of the benefits in this proposed rule are exactly the type of
benefits contemplated by the Presidential Memorandum.
---------------------------------------------------------------------------
\262\ 42 U.S.C. 12101(b)(1).
\263\ Id. 12101(a)(7).
\264\ 86 FR 7223 (Jan. 20, 2021).
---------------------------------------------------------------------------
These benefits are central to this proposed rule's potential impact
as they include concepts inherent to any civil rights law--like
equality--that will be felt throughout society and personally by
individuals with disabilities. Consider, for example, how even a
routine example of access to a web-based form could impact a person
with a disability. When the online form is accessible, the person with
a disability can complete the form (1) at any time they please, even
after normal business hours; (2) on their own; (3) without needing to
share potentially private information with someone else; and 4)
quickly, because they would not need to coordinate a time to complete
the form with a companion. Importantly, this is the experience people
without relevant disabilities have when accessing online government
services. This proposed rule is intended to ensure that people with
[[Page 52009]]
disabilities have the same opportunity to participate in and receive
the benefits of the services, programs, or activities that State and
local government entities make available to members of the public
online.
There are many benefits of this proposed rule--like equality and
dignity--that have not been monetized in the PRIA due to limited data
availability and inherent difficulty to quantify. Those benefits are
discussed here qualitatively. The Department requests comments and data
that could assist in quantifying these important benefits so that the
Department can also represent them in a way consistent with this
proposed rule's costs. The Department recognizes the significant
benefits of this rule and the impact the rule will have on the everyday
lives of people with disabilities. Thus, the Department seeks the
public's assistance in better quantifying the benefits that are
discussed qualitatively in this section.
This section's description of the proposed rule's unquantified
benefits first discusses benefits to individuals, followed by benefits
to State and local government entities.
Benefits to individuals include, among others:
[cir] Increased independence, flexibility, and dignity;
[cir] Increased privacy;
[cir] Reduced frustration;
[cir] Decreased assistance by companions;
[cir] Increased program participation; and
[cir] Increased civic engagement and inclusion.
Benefits to governments include, among others:
[cir] Increased certainty about the applicable technical standard;
and
[cir] Potential reduction in litigation.
i. Increased Independence, Flexibility, and Dignity
Among the most impactful benefits of this rulemaking are greater
independence, flexibility, and dignity for people with disabilities.
These unquantified benefits will extend beyond just people with
disabilities--many other individuals will benefit from more accessible
websites, as described in the PRIA. These benefits are also among the
most difficult to quantify, given that they will be felt uniquely by
each person and are often experienced in many intangible aspects of a
person's life. Because of this, the Department was unable to quantify
the monetary benefits of increased independence, flexibility, and
dignity that will result from this rulemaking. These unquantified
benefits are thus briefly described here. This inability to quantify
these benefits does not suggest that the Department considers them any
less important.
Accessible public entity websites and mobile apps will enable more
people with disabilities to independently access State or local
government entities' services, programs, and activities. People with
disabilities will be able to directly access websites providing
essential governmental information and services, without needing to
rely on a companion to obtain information and interact with websites
and mobile apps. For example, people with disabilities will be able to
independently submit forms and complete transactions, request critical
public services, communicate more easily with their local public
officials, and apply for governmental benefits. The ability to do each
of these tasks independently, without paying an assistant or asking for
a companion's assistance, creates a substantial benefit. Additionally,
online processing with status updates, automated notifications, and
automated reminders generates time savings and convenience that those
with disabilities will be better able to access when they can
independently enroll in government services through websites as a
result of this rule. People with disabilities will thus be able to
exercise more independence and control over their interactions with
State or local government entities, which are unquantified benefits
that will accrue from this rulemaking.
Further, this rulemaking will provide increased flexibility for
people with disabilities. This is another benefit that is difficult to
quantify, so the Department describes it here. Because of this
rulemaking, people with disabilities will be better able to access
State or local government entities' services, programs, or activities
on their own time and at their convenience, without needing to wait for
assistance from a companion or a State or local government entity's
employee. The ability to conduct certain transactions on a public
entity's website, such as paying a utility bill, renewing a business
license, or requesting a special trash pickup, gives individuals the
ability to conduct these transactions at a time most convenient to
them. This greater flexibility should lead to overall improved use of a
person's time, as measured by their preferences (thereby enhancing what
economists refer to as utility). This greater flexibility could also
result in cost savings to individuals with disabilities who might have
previously paid an assistant or sought the help of a companion to
conduct these transactions. Additionally, when websites are
inaccessible, people with disabilities might have to make separate
arrangements to conduct a transaction by taking time off work or
arranging transportation. Because of greater website accessibility,
people with disabilities can schedule these transactions or search for
information at a time and place most convenient for them, which results
in increased benefits.
Finally, individuals with disabilities will benefit from the
dignity that is associated with greater independence and flexibility.
This is another benefit that is difficult to quantify, so the
Department has included it as an unquantified benefit that will result
from this rulemaking. When individuals with relevant disabilities do
not need to rely on others to conduct transactions and access services,
programs, and activities, they are able to act with the independence
and flexibility that individuals without relevant disabilities enjoy,
which results in greater feelings of dignity. The knowledge that
websites and mobile apps are designed to be inclusive of individuals
with disabilities can give people with disabilities a greater sense of
dignity rooted in the knowledge that their lives are valued and
respected, and that they too are entitled to receive the benefits of
State or local government entities' services, programs, and activities,
without needing to rely on others. The Department was unable to
quantify the monetary value of this benefit, but the Department expects
individuals with disabilities to benefit from greater dignity as a
result of this rulemaking. This benefit is also associated with a
greater sense of confidence, self-worth, empowerment, and fairness,
which are also benefits that will accrue as a result of this
rulemaking.
ii. Increased Privacy
Accessible websites and mobile apps allow individuals with
disabilities to conduct activities independently, without unnecessarily
disclosing potentially private information such as banking details,
Social Security numbers, and health information to other people. This
is because when individuals with disabilities are able to use an
accessible website or mobile app, they can rely on security features to
convey information online, rather than potentially sharing information
with others, such as companions or public entities' employees. Without
accessible websites, people with certain types of disabilities may need
to share this sensitive information with others
[[Page 52010]]
unnecessarily, which could result in identity theft or misuse of their
personal information. Additionally, privacy protects individual
autonomy and has inherent value. Even the prospect of identity theft
may result in people with disabilities sharing less information or
needing to take additional measures to protect themselves from having
their information stolen. Because of this, there is a benefit that is
difficult to quantify in people with disabilities being able to safely
and privately conduct important transactions on the web, such as for
taxes, healthcare, and benefits applications. The increased privacy and
assurances that information will be kept safe online will benefit
people with relevant disabilities, though the Department was unable to
quantitatively calculate this benefit.
Further, another privacy benefit of this rulemaking is that people
with relevant disabilities will have greater access to community
resources that require sharing and receiving private information.
Sometimes sensitive information may need to be discussed, such as
information about physical health, mental health, sexual history,
substance use, domestic violence, or sexual assault. When websites are
more accessible, people with disabilities will be able to share this
information using things like online forms and messaging systems, which
reduces the likelihood that an individual with a disability will need
to disclose this personal information unnecessarily to a companion or
on the phone in the presence of others. Additionally, if people with
relevant disabilities can access websites independently, they may be
able to seek out community resources without needing to involve a
companion or a State or local government entity's employee
unnecessarily, which enhances the ability of people with these
disabilities to privately locate information. For example, if a person
with a disability is seeking to privately locate resources offered by a
public entity that would enable them to leave an abusive relationship
safely, accessible websites will allow them to search for information
with greater privacy than seeking out resources in person, on the
phone, or by mail, which they may not be able to do without seeking
assistance from, or risking being detected by, their abuser. These
benefits were not calculated quantitatively due to the difficulty of
placing a value on added privacy, but the Department anticipates people
with disabilities would nonetheless greatly benefit from the privacy
implications of this rule.
iii. Reduced Frustration
Potentially in addition to the significant unquantified benefits
discussed above, another impactful benefit of this rulemaking that may
be difficult to quantify is reduced frustration for people with
disabilities. Inaccessible websites and mobile apps create significant
frustration for individuals with certain types of disabilities who are
unable to access information or complete certain tasks. In addition to
the inconvenience of not being able to complete a task, this
frustration can lead to a lower-quality user experience. For example,
Pascual et al. (2014) assessed the moods of sighted, low vision, and
blind users while using accessible and inaccessible websites and found
greater satisfaction with accessible websites.\265\ This frustration
appears to be particularly common for individuals with disabilities.
Lazar et al. (2007) documented the frustrations users who are blind
experience when using screen readers, finding, for example, that on
average users reported losing 30.4 percent of time due to inaccessible
content.\266\ Furthermore, some people with vision disabilities may be
unable to complete a required task altogether. For example, if an
individual with low vision is filling out an online form but the color
contrast between the foreground and background on the ``submit'' button
is not sufficient, or if an individual who is blind is filling out a
form that is not coded so that it can be used with a screen reader,
they may be unable to submit their completed form. The inability to
complete a task independently or without any barriers can be extremely
frustrating and significantly reduce the overall quality of the user
experience. The frustration that individuals with disabilities
experience while accessing services, programs, and activities that
public entities offer on their websites and mobile apps would be
significantly reduced if the content was made accessible.
---------------------------------------------------------------------------
\265\ Afra Pascual et al., Impact of Accessibility Barriers on
the Mood of Blind, Low-Vision and Sighted Users, 27 Procedia Comput.
Sci. 431, 440 (2014), https://repositori.udl.cat/bitstream/handle/10459.1/47973/020714.pdf?sequence=1 [https://perma.cc/4P62-B42X].
\266\ Jonathan Lazar et al., What Frustrates Screen Reader Users
on the Web: A Study of 100 Blind Users, 22(3) Int'l J. of Human-
Comput. Interaction 247-269 (2007), https://web.archive.org/web/
20100612034800id_/https://triton.towson.edu/~jlazar/
IJHCI_blind_user_frustration.pdf [https://perma.cc/29PN-45GR].
---------------------------------------------------------------------------
It is difficult to quantify this reduction in frustration in
monetary costs, but it may already partially be captured in the
quantitative estimates framed above as time savings. The Department
believes the ability to complete tasks and engage with the services,
programs, and activities offered by public entities on websites and
mobile apps can make a significant improvement in the quality of the
lives of people with relevant disabilities by reducing the frustration
they experience.
iv. Decreased Assistance by Companions
In addition to the significant benefits discussed above, when
individuals with disabilities are able to access websites and mobile
apps independently instead of relying on a companion for assistance,
both individuals with disabilities and their companions will benefit in
other ways that are difficult to quantify.
If people with disabilities previously relied on supports such as
family members or friends to perform these tasks, the quality of these
relationships may be improved. If a person with a disability no longer
needs to request assistance, they can spend that time together with
their loved ones socializing or doing activities that they prefer,
instead of more mundane tasks like filling out tax forms. People with
relevant disabilities will have an increased opportunity to relate to
their companions as equals, rather than needing to assume a dependent
role in their relationships when they need help from others to complete
tasks online. Requests for assistance, and the manner in which those
requests are fulfilled by others, can sometimes cause stress or
friction in interpersonal relationships; when individuals can complete
tasks independently, those strains on relationships may be reduced.
If people with relevant disabilities previously paid companions to
assist them with online tasks, they will be able to save or spend this
money as they choose. They will also be able to save the time and
effort associated with finding paid companions who are willing and able
to assist with intermittent, often low-paid work.
If State agencies were providing a personal care assistant or home
health aide to assist an individual with a disability, it is possible
that some of that companion's time could be reallocated to assist a
different person with a disability, because the same amount of
assistance would not be needed to complete tasks online. This could
reduce government spending for home- and community-based services. It
may also increase the number of direct care workers who are available
to assist people with disabilities.
[[Page 52011]]
Companions will also benefit when they do not need to provide
assistance. Family members or friends will be able to do other things
with the time that they would have spent helping someone with a
disability. These may be activities that they enjoy more, that earn
income, or that benefit society in other ways. Paid companions will be
able to spend their time on other tasks such as assisting with bathing,
toileting, or eating. All of these benefits are difficult to
quantitatively calculate, but they are nonetheless benefits that would
accrue from the rule.
v. Increased Program Participation
Section 4.3 of the PRIA indirectly quantified the benefits of
increased access to services, programs, and activities by calculating
the benefit from people changing how they access those services to
using websites and mobile apps, which the Department referred to as
switching modes. However, the Department believes that there are
unquantified benefits associated with increased program participation
that are difficult to quantify, which are described briefly here.
Inaccessible websites may prevent persons with relevant
disabilities from accessing information or using State or local
government services, programs, and activities that others without
relevant disabilities have access to online. While people with
disabilities may nonetheless access government services, programs, and
activities despite barriers due to inaccessible websites, there will be
other times when people with disabilities are too discouraged by these
barriers and thus do not participate in services, programs, and
activities. This rulemaking will reduce those barriers to access, which
will result in fewer individuals with disabilities being deterred from
participating in State or local government services, programs, or
activities. Further, there may be some State or local government
services, programs, or activities that individuals with disabilities
would simply not have been aware of due to an inaccessible website,
that they may now choose to participate in once they have access to the
website or mobile app providing those services. This could result in a
benefit of increased program participation, which will allow people
with relevant disabilities to take advantage of services, programs, or
activities that could improve their lives. The Department believes
there is great intangible benefit to people with disabilities being
able to connect to services, which will result in greater feelings of
engagement and belonging in the community. There will also be a
tangible benefit to increased program participation that will likely
reduce inequality. For example, increased program participation could
result in increased benefit payouts, sidewalk repairs, and trash
pickups for people with disabilities, which would reduce inequality
between people with disabilities and people without relevant
disabilities.
vi. Increased Civic Engagement and Inclusion
Increased program participation in many civic activities will
result in an unquantified benefit of greater community involvement,
which will allow people with relevant disabilities to advocate for
themselves and others and participate more actively in the direction of
their communities. For example, if more people with disabilities can
independently access information about proposed legislative and policy
changes and contact local civic leadership about their views, they
might be more likely to become actively involved in civic activities
within their communities. Further, they may be able to access
information to inform their democratic participation, such as by
locating election resources and procedures for accessible voting. By
facilitating this kind of civic engagement, this rule will promote the
exercise of fundamental constitutional rights, such as the rights to
freedom of speech, assembly, association, and petitioning. Aside from
these benefits, governments also provide opportunities for social
engagement, recreation, and entertainment, which will further enable
people with relevant disabilities to feel more engaged and connected
with their communities. This engagement is a benefit both to people
with these disabilities and to people without relevant disabilities who
will be able to connect with others in their community more easily. All
of these benefits are difficult to quantify monetarily, but the
Department nonetheless believes they will result in significant
benefits for people with disabilities and for American communities.
vii. Increased Certainty About What Constitutes an Accessible Website
Under the ADA and Potential Reduction in Litigation
Although the ADA applies to the services, programs, and activities
that State and local government entities offer via the web, the ADA's
implementing regulations currently do not include specific technical
standards. The Department has consistently heard from public entities
that they desire guidance on how to specifically comply with the ADA in
this context. Adopting WCAG 2.1 Level AA as the technical standard for
web and mobile app accessibility will reduce confusion and uncertainty
by providing clear rules to public entities regarding how to make the
services, programs, and activities they offer to the public via their
websites and mobile apps accessible. Although the resulting increased
certainty from adopting a technical standard is difficult to quantify,
the Department believes it is an important benefit that will make
public entities more confident in understanding and complying with
their ADA obligations.
Further, increased certainty regarding how to make websites and
mobile apps accessible may reduce litigation costs for public entities.
Similar to how specific standards in the physical environment enable
businesses to identify and resolve accessibility issues, the adoption
of WCAG 2.1 Level AA as a technical standard will enable public
entities to determine if their websites or mobile apps are out of
compliance with the ADA and resolve any instances of noncompliance,
resulting in greater accessibility without litigation. The Department
recognizes that more specific technical standards could lead to an
increase in litigation as there will be a clearer way to demonstrate
that public entities are not in compliance. However, the ability to
more easily determine noncompliance will allow the public entity to
proactively resolve any compliance issues. Thus, although it is
difficult to know the exact impact that a clear technical standard will
have on total litigation costs, the Department believes that the
potential for reduced litigation costs is a significant benefit for
public entities that should be accounted for in this analysis.
6. Costs and Benefits of Regulatory Alternatives
The Department estimated costs and benefits for several possible
alternatives to the proposed rule. These alternatives are described in
Table 34, and a full explanation of the Department's methodology can be
found in Section 5, Regulatory Alternatives, of the accompanying PRIA.
[[Page 52012]]
Table 34--Regulatory Alternatives Considered \267\
------------------------------------------------------------------------
Stringency Alternative
------------------------------------------------------------------------
Less stringent.................... 3 years for implementation for large
entities; 4 years for
implementation for small entities.
Less stringent.................... Conformance with WCAG 2.1 Level A
required.
Less stringent.................... Conformance with WCAG 2.0 Level AA
required.
Rule as Proposed.................. Conformance with WCAG 2.1 Level AA
required.
More stringent.................... 1 year for implementation for all
entities.
More stringent.................... 1 year for implementation for large
entities; 3 years for
implementation for small entities.
More stringent.................... Conformance with WCAG 2.1 Level AAA
required.
------------------------------------------------------------------------
a. Costs of Regulatory Alternatives
To estimate the impact to website, mobile app, and course
remediation costs of lengthening the required implementation timeline,
the Department adjusted its assumptions about the pace at which
entities would incur initial testing and remediation costs. In this
analysis, the Department projected 10-year costs assuming large
entities would incur 33 percent of their initial costs in each of the
first three years and small entities would incur 25 percent of their
initial costs in each of the first four years after the promulgation of
the rule.
---------------------------------------------------------------------------
\267\ See Section 5, Regulatory Alternatives, in the
accompanying PRIA for the Department's methodology.
---------------------------------------------------------------------------
To estimate the costs of requiring conformance only with WCAG 2.1
Level A, the Department duplicated its website cost methodology while
omitting from consideration any errors that violate WCAG 2.1 Level AA
success criteria only. Accessibility errors that violated both WCAG 2.1
Level A and WCAG 2.1 Level AA success criteria were retained.
WCAG 2.1 introduced 12 new success criteria for WCAG 2.1 Levels A
and AA.\268\ To estimate the costs of requiring WCAG 2.0 Level AA
rather than WCAG 2.1 Level AA standards, the Department replicated its
website cost methodology while omitting any errors classified under one
or more of these new success criteria.
---------------------------------------------------------------------------
\268\ These are standards 1.3.4, 1.3.5, 1.4.10, 1.4.11, 1.4.12,
1.4.13, 2.1.4, 2.5.1, 2.5.2, 2.5.3, 2.5.4, and 4.1.3. More
information is available at: W3C[supreg], What's New in WCAG 2.1
(Aug. 13, 2020), https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
---------------------------------------------------------------------------
To estimate the costs of shortening the implementation timeline for
the proposed rule to one year for all entities, the Department retained
its primary calculations but assumed that the full burden of the
initial costs would be borne in Year 1. The Department then generated a
second alternative timeline with a one-year implementation timeline for
large entities, and a three-year implementation timeline for small
entities. For these alternatives, the primary costs remain the same,
but the year that they begin to accrue is changed.
The Department believes that requiring compliance with WCAG 2.1
Level AAA would prove infeasible, or at least unduly onerous, for some
entities. Level AAA, which is the highest level of WCAG conformance,
includes all of the Level A and Level AA success criteria and also
contains additional success criteria that can provide a more enriched
user experience, but are the most difficult to achieve for web
developers. The W3C[supreg] does not recommend that Level AAA
conformance be required as a general policy for entire websites because
it is not possible to satisfy all Level AAA success criteria for some
content.\269\ For those reasons, the Department did not quantify costs
of requiring WCAG 2.1 Level AAA. Table 35 shows the projected 10-year
costs of these alternatives.
---------------------------------------------------------------------------
\269\ See W3C[supreg], Understanding Conformance, Understanding
Requirement 1 (Aug. 19, 2022), https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/9ZG9-G5N8].
\270\ See Section 5, Regulatory Alternatives, in the
accompanying PRIA for the Department's methodology.
Table 35--Projected Total 10-Year Costs for Regulatory Alternatives
[Millions] \270\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shorter time Shorter time
Time period Longer time WCAG 2.1 Level WCAG 2.0 Level Rule as frame opt. 1 frame opt. 2
frame A AA proposed [a] [a]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1.................................................. $2,387 $3,095 $3,082 $3,361 $8,344 $5,046
Year 2.................................................. 2,582 3,380 3,365 3,646 5,526 6,402
Year 3.................................................. 2,803 6,275 5,402 6,402 2,717 4,304
Year 4.................................................. 6,030 3,262 2,817 3,270 1,836 2,389
Year 5.................................................. 3,270 1,831 1,600 1,836 1,836 1,836
Year 6.................................................. 1,836 1,831 1,600 1,836 1,836 1,836
Year 7.................................................. 1,836 1,831 1,600 1,836 1,836 1,836
Year 8.................................................. 1,836 1,831 1,600 1,836 1,836 1,836
Year 9.................................................. 1,836 1,831 1,600 1,836 1,836 1,836
Year 10................................................. 1,836 1,831 1,600 1,836 1,836 1,836
PV of 10-year costs, 3% rate............................ 22,721 23,620 21,286 24,275 26,238 25,806
Average annualized costs, 3% rate....................... 3,162 2,795 2,522 2,872 3,102 3,052
PV of 10-year costs, 7% rate............................ 18,579 20,093 18,174 20,701 22,898 22,298
Average annualized costs, 7% rate....................... 2,712 2,860 2,587 2,947 3,260 3,174
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] Option 1 is a compliance time frame of one year for all entities. Option 2 is a compliance time frame of one year for large entities and three years
for small entities.
[[Page 52013]]
b. Benefits of Regulatory Alternatives
A variety of assumptions were used to estimate benefits for these
regulatory alternatives. For the alternative compliance time frames,
the Department adjusted only the benefit accrual rates to reflect the
alternative time frames. Table 36 shows the 10-year average annualized
benefits decrease to $7.7 billion from $8.9 billion with the longer
time frame and increase to either $10.7 billion or $9.7 billion with
the shorter time frames (using a 7 percent discount rate).
---------------------------------------------------------------------------
\271\ See Section 5, Regulatory Alternatives, in the
accompanying PRIA for the Department's methodology.
Table 36--Average Annualized Benefits, Regulatory Alternatives
[Millions] \271\ [a]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shorter time Shorter time
Beneficiary Longer time WCAG 2.1 Level WCAG 2.0 Level Rule as frame opt. 1 frame opt. 2
frame A AA proposed [b] [b]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Time savings--current users............................. $3,171.6 $2,696.9 $3,416.1 $3,416.1 $3,882.6 $3,469.8
Time savings--new users................................. 699.6 170.3 170.3 753.5 856.4 765.3
Time savings--governments............................... 458.0 83.6 83.6 493.3 560.7 501.1
Time savings--mobile apps............................... 297.4 252.9 320.4 320.4 364.1 325.4
Time savings--education................................. 2,775.4 2,766.6 3,504.4 3,504.4 4,384.2 4,070.8
Educational attainment.................................. 313.4 224.7 224.7 449.5 614.1 597.6
-----------------------------------------------------------------------------------------------
Total............................................... 7,715.4 6,195.1 7,719.5 8,937.2 10,662.1 9,730.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
[a] 10-Year average annualized benefits, 7 percent discount rate.
[b] Option 1 is a compliance time frame of one year for all entities. Option 2 is a compliance time frame of one year for large entities and three years
for small entities.
For the WCAG conformance level, the alternative assumptions were
less straightforward to calculate. For time savings for current website
users, current mobile app users, and postsecondary students, the
Department used the ratio of the number of success criteria under the
different standards to adjust benefit levels. Because the literature
used to assess the benefits of compliance with WCAG 2.1 Level AA in the
primary analysis was based on compliance with WCAG 2.0 Level AA, the
Department set benefits for compliance with WCAG 2.0 Level AA equal to
the benefits in the primary analysis. For WCAG 2.1 Level A, the
Department multiplied primary benefits by 0.79 (based on the ratio of
the number of success criteria in WCAG 2.1 Level A to the number of
success criteria in WCAG 2.0 Level AA, or 30/38).\272\
---------------------------------------------------------------------------
\272\ WCAG 2.0 Level AA has 38 success criteria, and WCAG 2.1
Level A has 30. WGAG 2.0 Level AA is used as the baseline because
that is the standard used by Sven Schmutz et al., Implementing
Recommendations From Web Accessibility Guidelines: A Comparative
Study of Nondisabled Users and Users with Visual Impairments, 59
Human Factors and Ergonomics Soc'y 956 (2017), https://doi.org/
10.1177/0018720817708397. A Perma archive link was unavailable for
this citation.
---------------------------------------------------------------------------
For time savings to new users and State and local government
entities, the Department used the low and high estimates for the less
stringent and more stringent conformance level alternatives,
respectively. For benefits of higher educational attainment, the
Department simply multiplied by 0.5 and 1.5 respectively for the less
stringent and more stringent alternatives. The basis for this is the
gap in educational achievement closing by 5 percent or 15 percent,
rather than 10 percent (the same alternative assumptions as used in the
sensitivity analysis).
B. Preliminary Regulatory Flexibility Act (``PRFA'') Analysis Summary
As directed by the Regulatory Flexibility Act of 1980, as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996, as
well as Executive Order 13272, the Department is required to consider
the potential impact of the proposed rule on small entities, including
small businesses, small non-profit organizations, and small
governmental jurisdictions. This process helps agencies to determine
whether a proposed rule is likely to impose a significant economic
impact on a substantial number of small entities and, in turn, to
consider regulatory alternatives to reduce the regulatory burden on
those small entities.This proposed rule applies to all small
governmental jurisdictions. The Department's analysis leads it to
conclude that the impact on small governmental jurisdictions affected
by the proposed rule will not be significant, as measured by annualized
costs as a percent of annual revenues. The Department presents this
Preliminary Regulatory Flexibility Analysis for review and comment.
1. Why the Department is Considering Action
Title II of the ADA provides that no qualified individual with a
disability shall be excluded from participation in or denied the
benefits of the services, programs, or activities of a State or local
government. The Department has consistently made clear that this
requirement includes all services, programs, and activities of public
entities, including those provided via the web. It also includes those
provided via mobile apps. In this NPRM, the Department proposes
technical standards for web and mobile app accessibility to give public
entities greater clarity in exactly how to meet their ADA obligations
and to help ensure equal access to government services, programs, and
activities for people with disabilities.
Just as steps can exclude people who use wheelchairs, inaccessible
web content can exclude people with a range of disabilities from
accessing government services. For example, the ability to access
voting information, find up-to-date health and safety resources, and
look up mass transit schedules and fare information may depend on
having access to web content and mobile apps. With accessible web
content and mobile apps people with disabilities can access government
services independently and privately.
2. Objectives of and Legal Basis for the Proposed Rule
On July 26, 1990, President George H.W. Bush signed into law the
ADA, a comprehensive civil rights law prohibiting discrimination on the
basis of disability.\273\ Section 204(a) of the ADA directs the
Attorney General to
[[Page 52014]]
issue regulations implementing part A of title II but exempts matters
within the scope of the authority of the Secretary of Transportation
under section 223, 229, or 244.\274\ Title II, which this rule
addresses, applies to State and local government entities, and, in part
A, protects qualified individuals with disabilities from discrimination
on the basis of disability in services, programs, and activities
provided by State and local government entities.
---------------------------------------------------------------------------
\273\ 42 U.S.C. 12101-12213.
\274\ 42 U.S.C. 12134(a). Sections 229(a) and 244 of the ADA
direct the Secretary of Transportation to issue regulations
implementing part B of title II, except for section 223. See 42
U.S.C 12149; 42 U.S.C. 12164.
---------------------------------------------------------------------------
Accordingly, the Department is proposing technical requirements to
enable public entities to fulfill their obligations under title II to
provide access to all of their services, programs, and activities that
are provided via the web and mobile apps. The Department believes the
requirements described in the NPRM are necessary to ensure the
``equality of opportunity, full participation, independent living, and
economic self-sufficiency'' for individuals with disabilities set forth
in the ADA.\275\
---------------------------------------------------------------------------
\275\ 42 U.S.C. 12101(a)(7).
---------------------------------------------------------------------------
3. Number of Small Governments Affected by the Rulemaking
The Department has examined the impact of the proposed rule on
small entities as required by the RFA. For the purposes of this
analysis, impacted small public entities are independent State and
local governmental units in the United States that serve a population
less than 50,000.\276\ Based on this definition, the Department
estimates a total of 88,000 small entities. This estimate includes the
governments of counties, municipalities, townships, school districts,
and territories with populations below 50,000 in the 2020 Census of
Governments.\277\ No State governments qualify as small. All special
district governments \278\ are included in this analysis because total
population for these public entities could not be determined and the
Department wants to ensure small governments are not undercounted.
---------------------------------------------------------------------------
\276\ 5 U.S.C. 601(5); Small Bus. Admin., A Guide for Government
Agencies: How to Comply with the Regulatory Flexibility Act (Aug.
2017), https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/C57B-YV28].
\277\ U.S. Census Bureau, 2020 State & Local Government Finance
Historical Datasets and Tables (Sept. 2022), https://www2.census.gov/programs-surveys/gov-finances/tables/2020/2020_Individual_Unit_File.zip, Fin_PID_2020.txt file [https://perma.cc/QJM3-N7SG].
\278\ The proposed rule defines ``special district government''
as ``a public entity--other than a county, municipality, or
township, or independent school district--authorized by State law to
provide one function or a limited number of designated functions
with sufficient administrative and fiscal autonomy to qualify as a
separate government and whose population is not calculated by the
United States Census Bureau in the most recent decennial Census or
Small Area Income and Poverty Estimates.'' A special district
government may include, for example, a mosquito abatement district,
utility district, transit authority, water and sewer board, zoning
district, or other similar governmental entities that operate with
administrative and fiscal independence.
---------------------------------------------------------------------------
The Census of Governments includes enrollment numbers for school
districts, but not population counts. To approximate population, the
Department multiplied the enrollment numbers by the ratio of the
estimated total population to school age population, by county.\279\
The Department notes that this method of estimating population of
independent school districts is inconsistent with the population
provisions in the proposed rule's regulatory text because the local
government finances data only include enrollment numbers, not
population numbers. Postsecondary educational institutions are
considered as separate institutions because their funding sources are
different from those of traditional State and local government
entities. While public postsecondary educational institutions receive
funding from State and local tax revenue, they also receive funding
from tuition and fees from students and sometimes from endowments.
Public universities are excluded from this analysis because these tend
to be State-dependent institutions and all States have populations
greater than 50,000. Independent community colleges were removed from
school district counts and included separately. These were combined
with counts of dependent community colleges from the National Center
for Education Statistics (``NCES'').\280\
---------------------------------------------------------------------------
\279\ U.S. Census Bureau, Annual County Resident Population
Estimates by Age, Sex, Race, and Hispanic Origin: April 1, 2010 to
July 1, 2019 (Oct. 2021), https://www.census.gov/data/datasets/time-series/demo/popest/2010s-counties-detail.html [https://perma.cc/SV98-ML2A].
\280\ Institute of Education Sciences, Summary Tables, National
Center for Education Statistics, https://nces.ed.gov/ipeds/SummaryTables/ [https://perma.cc/9SS9-D9T2].
---------------------------------------------------------------------------
4. Impact of the Proposed Rule on Small Governments
The Department calculated costs and benefits to small governments.
The Department also compared costs to revenues for small governments to
evaluate the economic impact to these governments. The costs are less
than 1 percent of revenues for every entity type, so the Department
believes that the costs of this proposed regulation would not be overly
burdensome for the regulated small governments.\281\ These costs
include one-time costs for familiarization with the requirements of the
rule; the purchase of software to assist with remediation of the
website or mobile app; the time spent testing and remediating websites
and mobile apps to comply with WCAG 2.1 Level AA; and elementary,
secondary, and postsecondary education course content remediation.
Annual costs include recurring costs for software licenses and
remediation of future content.
---------------------------------------------------------------------------
\281\ As noted above and as a point of reference, the United
States Small Business Administration advises agencies that a
potential indicator that the impact of a proposed regulation may be
``significant'' is whether the costs exceed 1 percent of the gross
revenues of the entities in a particular sector, although the
threshold may vary based on the particular types of entities at
issue. The Department estimates that the costs of this rulemaking
for each government entity type are far less than 1 percent of
revenues. See Small Bus. Admin., A Guide for Government Agencies:
How to Comply with the Regulatory Flexibility Act 19 (Aug. 2017),
https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH].
---------------------------------------------------------------------------
The Department performed analyses to estimate the costs to test and
remediate inaccessible websites; mobile apps; and elementary,
secondary, and postsecondary education course content. These analyses
involved multistage stratified cluster sampling to randomly select
government entities, government entity websites, and government entity
mobile apps. The Department selected samples from each type and size
(small or large) of government entity, estimated each type of
remediation cost, and then extrapolated the costs to the population of
government entities in each government type and size combination.
Annualized total costs for small governments over a 10-year period are
estimated at $1.5 billion assuming either a 3 percent or 7 percent
discount rate (Table 37). Additional details on how these costs were
estimated are provided in Section VI.A.4 of this preamble.
The most recent revenue data available are from the U.S. Census
Bureau's State and Local Government Finances by Level of Government and
by State: 2020.\282\ However, these data do not disaggregate revenue by
entity type or size. Therefore, the Department first estimated the
proportion of total local government revenue in each local government
entity type and size using the 2012 U.S. Census Bureau's database on
individual local government
[[Page 52015]]
finances.\283\ The Department then multiplied these proportions of the
total local government revenues in each entity type by the 2020 total
local government revenue to calculate the 2020 revenue for the small
entities in each government type. Revenue data for the small
territories are from the U.S. Government Accountability Office.\284\
The Department then multiplied these 2020 revenue numbers by the ratio
of the 2021 GDP deflator to the 2020 GDP deflator to express these
revenues in 2021 dollars.\285\ See Section VI.A.3.h for additional
details on how these revenue numbers were derived.
---------------------------------------------------------------------------
\282\ U.S. Census Bureau, 2020 State & Local Government Finance
Historical Datasets and Tables (Sept. 2022), https://www.census.gov/data/datasets/2020/econ/local/public-use-datasets.html [https://perma.cc/QJM3-N7SG].
\283\ U.S. Census Bureau, Historical Data (Oct. 2021), https://www.census.gov/programs-surveys/cog/data/historical-data.html
[https://perma.cc/UW25-6JPZ]. The Department was unable to find more
recent data with this level of detail. Population counts were
adjusted for estimated population growth over the applicable period.
\284\ GAO, U.S. TERRITORIES: Public Debt Outlook-2021 Update
(June 2021), https://www.gao.gov/assets/gao-21-508.pdf [https://perma.cc/7Z2W-K8ZG].
\285\ Bureau of Economic Analysis, Table 1.1.9. Implicit Price
Deflators for Gross Domestic Product (last updated Nov. 30, 2022),
https://apps.bea.gov/iTable/?reqid=19&step=3&isuri=1&1910=x&0=-99&1921=survey&1903=13&1904=2015&1905=2021&1906=a&1911=0 [https://perma.cc/KNK8-EM6L].
---------------------------------------------------------------------------
Table 37 contains the costs and revenues per government type, and
cost-to-revenue ratios using a 3 percent and 7 percent discount rate.
The costs are less than 1 percent of revenues for every entity type, so
the Department believes that the costs of this proposed regulation
would not have a significant economic impact on small entities affected
by the proposed rule.\286\
---------------------------------------------------------------------------
\286\ As noted above and as a point of reference, the United
States Small Business Administration advises agencies that a
potential indicator that the impact of a proposed regulation may be
``significant'' is whether the costs exceed 1 percent of the gross
revenues of the entities in a particular sector, although the
threshold may vary based on the particular types of entities at
issue. The Department estimates that the costs of this rulemaking
for each government entity type are far less than 1 percent of
revenues. See Small Bus. Admin., A Guide for Government Agencies:
How to Comply with the Regulatory Flexibility Act 19 (Aug. 2017),
https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/MZW6-Y3MH]. Dependent
community college costs (community colleges that are operated by a
government entity rather than being an independent school district)
are not compared to revenues. Revenues are not available directly
for these community colleges, and the Department is unable to
determine how to distribute these entities' costs across the State
and local government entity types. Additionally, it is unclear if
all public college and university revenue (e.g., tuition, fees) is
included in the revenue recorded for the State or local entities on
which the school is dependent.
Table 37--Number of Small Entities and Ratio of Costs to Government Revenues
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average annual Average annual Total 10-year Total 10-year
Number of cost per cost per average annual average annual Annual revenue Ratio of costs Ratio of costs
Government type small entities entity (3%) entity (7%) costs (3%) costs (7%) (millions) to revenue to revenue
[c] [c] (millions) (millions) (3%) (7%)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
County.......................................................... 2,105 $9,601.6 $10,150.5 $20.2 $21.4 $65,044.3 0.03 0.03
Municipality.................................................... 18,729 18,269.9 19,314.5 342.2 361.7 184,538.9 0.19 0.20
Township........................................................ 16,097 15,135.0 15,990.6 243.6 257.4 55,818.9 0.44 0.46
Special district................................................ 38,542 1,893.1 1,991.4 73.0 76.8 278,465.3 0.03 0.03
School district [a]............................................. 11,443 31,964.3 33,559.1 365.8 384.0 330,746.4 0.11 0.12
U.S. territory.................................................. 2 116,995.3 124,261.1 0.2 0.2 1,242.5 0.02 0.02
CCs [b]......................................................... 960 449,163.1 455,942.1 431.2 437.7 N/A N/A N/A
CCs--independent................................................ 231 449,163.1 455,942.1 103.8 105.3 11,340.2 0.91 0.93
-------------------------------------------------------------------------------------------------------------------------------
Total (includes all CCs).................................... 87,878 16,798.0 17,515.5 1,476.2 1,539.2 N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
Total (only independent CCs)................................ 87,149 13,181.3 13,848.1 1,148.7 1,206.8 927,196.7 0.12 0.13
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[a] Excludes community colleges, which are costed separately.
[b] Includes all dependent community college districts and the small independent community college districts. Revenue data are not available for the dependent community college districts.
[c] This cost consists of regulatory familiarization costs (discussed in Section VI.A.4.a of this preamble), government website testing and remediation costs (Section VI.A.4.b), mobile app
testing and remediation costs (Section VI.A.4.c of this preamble), postsecondary education course remediation costs (Section VI.A.4.d of this preamble), elementary and secondary education
course remediation costs (Section VI.A.4.e), and costs for third-party websites (Section VI.A.4.f of this preamble) averaged over ten years.
The Department quantified six types of benefits in the Preliminary
Regulatory Impact Analysis.\287\ However, only one of these types of
benefits directly impacts State and local government entities' budgets.
Improved website accessibility will lead some individuals who accessed
government services via the phone, mail, or in person to begin using
the public entity's website to complete the task. This will generate
time savings for government employees. The Department assumed that for
each of the 13.5 million new users of State and local government
entities' websites, there will be six fewer transactions that require
government personnel's time, and each of these will save the government
about 10 minutes of labor time. This results in 13.5 million hours
saved. To determine the share associated with small governments, the
Department multiplied by 80 percent, which is the share of websites
associated with small governments.
---------------------------------------------------------------------------
\287\ See Section 4, Impact of the Proposed Rule on Small
Governments, of the accompanying PRFA for more details.
---------------------------------------------------------------------------
The cost of this time is valued at the median loaded wage for
``Office and Administrative Support Occupations'' within Federal,
State, and local governments. According to the 2021 OEWS, the median
hourly wage rate is $22.19.\288\ This was multiplied by two to account
for benefits and overhead.\289\ This results in a loaded hourly wage
rate of $44.38 per hour. Multiplying 13.5 million hours by 80 percent
and $44.38 per hour results in time savings to small State and local
government entities of $478.9 million. Assuming lower benefits during
the implementation period \290\ results in average annualized benefits
of $404.0 million and $393.3 million using a 3 percent and 7 percent
discount rate, respectively.
---------------------------------------------------------------------------
\288\ U.S. Bureau of Labor Statistics, May 2021 National
Industry-Specific Occupational Employment and Wage Estimates (last
updated Mar. 2022), https://www.bls.gov/oes/current/naics2_99.htm#43-0000 [https://perma.cc/SGS7-9GXP].
\289\ Department of Justice guidance was unavailable, so the
Department used guidance from a different agency that frequently
engages in rulemakings. U.S. Dep't of Health and Human Services
Office of the Assistant Secretary for Planning and Evaluation,
Guidelines for Regulatory Impact Analyses (2016), https://aspe.hhs.gov/reports/guidelines-regulatory-impact-analysis [https://perma.cc/7NVQ-AG8S].
\290\ See Section VI.A.5.c.i.
---------------------------------------------------------------------------
[[Page 52016]]
5. Relevant Federal Rules Duplicating, Overlapping, or Conflicting With
the Proposed Rule
The Department has determined that there are no other Federal rules
that are either in conflict with this proposed rule or are duplicative
of it. The Department recognizes that there is a potential for overlap
with other Federal nondiscrimination laws because entities subject to
title II of the ADA also are subject to title I of the ADA, which
prohibits discrimination on the basis of disability in employment. Some
public entities subject to title II may also be subject to section 504
of the Rehabilitation Act, which prohibits discrimination on the basis
of disability in programs and activities that receive Federal financial
assistance. The regulation implementing title II of the ADA does not,
however, invalidate or limit the remedies, rights, and procedures
available under any other Federal, State, or local laws that provide
greater or equal protection for the rights of individuals with
disabilities (or individuals associated with them). Compliance with the
Department's title II regulation, therefore, does not ensure compliance
with other Federal laws.
6. Alternatives to the Proposed Rule
The Department has considered three less-restrictive compliance
alternatives for small governments. The first is a longer compliance
period of four years for small public entities and special district
governments, for which the Department adjusted its assumptions as to
the pace at which entities would incur initial testing and remediation
costs. Additionally, two less restrictive conformance levels were
considered: WCAG 2.1 Level A and WCAG 2.0 Level AA. To estimate the
costs of requiring conformance only with WCAG 2.1 Level A success
criteria, the Department duplicated its website cost methodology
discussed in Section VI.A.4.b of this preamble while omitting from
consideration any errors that violate WCAG 2.1 Level AA success
criteria only. Accessibility errors that violated both WCAG 2.1 Level A
and WCAG 2.1 Level AA success criteria were retained. WCAG 2.1
introduced 12 new success criteria for Levels A and AA.\291\ To
estimate the costs of requiring WCAG 2.0 Level AA rather than WCAG 2.1
Level AA compliance, the Department replicated its website cost
methodology from Section VI.A.4.b while omitting any errors classified
under one or more of these new success criteria. Costs and benefits of
these regulatory alternatives for all governments are presented in
Section 5, Regulatory Alternatives, of the accompanying PRIA. Here, the
Department summarizes the costs and benefits of these regulatory
alternatives for small entities.
---------------------------------------------------------------------------
\291\ These are Success Criteria 1.3.4, 1.3.5, 1.4.10, 1.4.11,
1.4.12, 1.4.13, 2.1.4, 2.5.1, 2.5.2, 2.5.3, 2.5.4, and 4.1.3.
Success Criteria 1.3.6, 2.2.6, 2.3.3, 2.5.5, and 2.5.6 were newly
introduced at Level AAA. See W3C,[supreg] What's New in WCAG 2.1
(Aug. 13, 2020), https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
---------------------------------------------------------------------------
Costs for small public entities differ for the regulatory
alternatives as explained in Section 6, Alternatives to the Proposed
Rule, of the accompanying PRIA. The results are summarized in Table 38.
---------------------------------------------------------------------------
\292\ See Section 6, Alternatives to the Proposed Rule, in the
accompanying PRFA for the Department's methodology.
Table 38--Average Annualized Costs for Small Entities of Regulatory Alternatives, 7 Percent Discount Rate
[Millions] \292\
----------------------------------------------------------------------------------------------------------------
Longer
Government type Rule as WCAG 2.1 Level WCAG 2.0 Level implementation
proposed A AA period
----------------------------------------------------------------------------------------------------------------
County....................................... $21.4 $21.2 $21.8 $20.6
Municipality................................. 361.7 360.8 366.5 348.9
Township..................................... 257.4 256.5 261.5 248.8
Special district............................. 76.8 76.7 86.7 82.9
School district [a].......................... 384.0 383.1 382.5 362.2
U.S. territory............................... 0.2 0.2 0.2 0.2
CCs [b]...................................... 437.7 436.5 357.5 392.8
CCs--independent............................. 105.3 105.0 86.0 94.5
------------------------------------------------------------------
Total (includes all CCs)................. 1,539.2 1,535.1 1,476.8 1,456.4
------------------------------------------------------------------
Total (only independent CCs)............. 1,206.8 1,203.6 1,205.3 1,158.1
----------------------------------------------------------------------------------------------------------------
[a] Excludes community colleges, which are costed separately.
[b] Includes all dependent community college districts and the small independent community college districts.
Benefit methodology for regulatory alternatives is explained in
Section VI.A.6 of this preamble. Here, the Department applies that same
methodology to small entities. Using a longer compliance period, the
Department estimates average annualized benefits would be slightly
lower because benefits would not accrue as quickly. The Department
estimates average annualized benefits of $378.2 million and $365.2
million using a 3 percent and 7 percent discount rate, respectively
(compared with $404.0 million and $393.3 million associated with the
rule as proposed).
The Department altered four assumptions to estimate the benefits
associated with WCAG 2.1 Level A and WCAG 2.0 Level AA. These are the
same assumptions altered for the sensitivity analysis in Section
VI.A.5.c.ii of this preamble. First, ACS prevalence rates were used in
lieu of SIPP estimates. Second, rather than assuming website usage
becomes equivalent for individuals with and without relevant
disabilities, the Department assumed this gap only closes by 75
percent. Third, the average time spent per transaction was reduced by
25 percent. Fourth, the average number of transactions per year was
reduced by 25 percent. Incorporating these alternative assumptions
reduces the cost savings for small governments to $68.5 million and
$66.7 million using a 3 percent and 7 percent discount rate,
respectively (from $404.0 million and $393.3 million associated with
the rule as proposed).
[[Page 52017]]
C. Executive Order 13132: Federalism
Executive Order 13132 requires executive branch agencies to
consider whether a proposed rule will have federalism
implications.\293\ That is, the rulemaking agency must determine
whether the rule is likely to have substantial direct effects on State
and local governments, on the relationship between the Federal
Government and the States and localities, or on the distribution of
power and responsibilities among the different levels of government. If
an agency believes that a proposed rule is likely to have federalism
implications, it must consult with State and local government officials
about how to minimize or eliminate the effects.
---------------------------------------------------------------------------
\293\ 64 FR 43255 (Aug. 4, 1999).
---------------------------------------------------------------------------
Title II of the ADA covers State and local government services,
programs, and activities, and, therefore, clearly has some federalism
implications. State and local government entities have been subject to
the ADA since 1991, and the many State and local government entities
that receive Federal financial assistance have also been required to
comply with the requirements of section 504 of the Rehabilitation Act.
Hence, the ADA and the title II regulation are not novel for State and
local governments. This proposed rule will preempt State laws affecting
entities subject to the ADA only to the extent that those laws provide
less protection for the rights of individuals with disabilities. This
proposed rule does not invalidate or limit the remedies, rights and
procedures of any State laws that provide greater or equal protection
for the rights of individuals with disabilities.
The Department intends to amend the regulation in a manner that
meets the objectives of the ADA while also minimizing conflicts between
State law and Federal interests. The Department is now soliciting
comments from State and local officials and their representative
national organizations through this NPRM. The Department seeks comment
from all interested parties about the potential federalism implications
of the proposed rule. The Department welcomes comments on the proposed
rule's effects on State and local governments, and on whether the
proposed rule may have direct effects on the relationship between the
Federal Government and the States, or the distribution of power and
responsibilities among the various levels of government.
D. National Technology Transfer and Advancement Act of 1995
The National Technology Transfer and Advancement Act of 1995
(``NTTAA'') directs that, as a general matter, all Federal agencies and
departments shall use technical standards that are developed or adopted
by voluntary consensus standards bodies, which are private, generally
nonprofit organizations that develop technical standards or
specifications using well-defined procedures that require openness,
balanced participation among affected interests and groups, fairness
and due process, and an opportunity for appeal, as a means to carry out
policy objectives or activities.\294\ In addition, the NTTAA directs
agencies to consult with voluntary, private sector, consensus standards
bodies and requires that agencies participate with such bodies in the
development of technical standards when such participation is in the
public interest and is compatible with agency and departmental
missions, authorities, priorities, and budget resources.\295\
---------------------------------------------------------------------------
\294\ Public Law 104-113, 12(d)(1) (15 U.S.C. 272 note).
\295\ Id. Sec. 12(d)(2).
---------------------------------------------------------------------------
As discussed previously, the Department is proposing to adopt the
Web Content Accessibility Guidelines 2.1 Level AA as the accessibility
standard to apply to web content and mobile apps of title II entities.
WCAG 2.1 was developed by the W3C[supreg], which has been the principal
international organization involved in developing protocols and
guidelines for the web. The W3C[supreg] develops a variety of technical
standards and guidelines, including ones relating to privacy,
internationalization of technology, and--as detailed above--
accessibility. Thus, the Department believes it is complying with the
NTTAA in selecting WCAG 2.1 as the applicable accessibility standard.
However, the Department is interested in comments from the public
addressing our use of WCAG 2.1.
E. Plain Language Instructions
The Department makes every effort to promote clarity and
transparency in its rulemaking. In any regulation, there is a tension
between drafting language that is simple and straightforward and
drafting language that gives full effect to issues of legal
interpretation. The Department operates a toll-free ADA Information
Line at (800) 514-0301 (voice); 1-833-610-1264 (TTY) that the public is
welcome to call for assistance understanding anything in this proposed
rule. If any commenter has suggestions for how the regulation could be
written more clearly, please contact Rebecca B. Bond, Chief, Disability
Rights Section, whose contact information is provided in the
introductory section of this proposed rule entitled, FOR FURTHER
INFORMATION CONTACT.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (``PRA''), no person is
required to respond to a ``collection of information'' unless the
agency has obtained a control number from OMB.\296\ This proposed rule
does not contain any collections of information as defined by the PRA.
---------------------------------------------------------------------------
\296\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------
G. Unfunded Mandates Reform Act
Section 4(2) of the Unfunded Mandates Reform Act of 1995 \297\
excludes from coverage under that Act any proposed or final Federal
regulation that ``establishes or enforces any statutory rights that
prohibit discrimination on the basis of race, color, religion, sex,
national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.
---------------------------------------------------------------------------
\297\ 2 U.S.C. 1503(2).
---------------------------------------------------------------------------
H. Incorporation by Reference
As discussed above, the Department proposes to adopt the
internationally recognized accessibility standard for web access, the
Web Content Accessibility Guidelines (``WCAG'') 2.1 Level AA, published
in June 2018, as the technical standard for web and mobile app
accessibility under title II of the ADA. WCAG 2.1, published by the
World Wide Web Consortium (``W3C[supreg]'') Web Accessibility
Initiative (``WAI''), specifies success criteria and requirements to
make web content more accessible to all users, including persons with
disabilities. The Department incorporates WCAG 2.1 Level AA by
reference into this rule, instead of restating all of its requirements
verbatim. As noted above, to the extent there are distinctions between
WCAG 2.1 Level AA and the standards articulated in this rule, the
standards articulated in this rule prevail.
The Department notes that when the W3C[supreg] publishes new
versions of WCAG, those versions will not be automatically incorporated
into this rule. Federal agencies cannot incorporate by reference future
versions of standards developed by bodies like the W3C[supreg]. Federal
agencies are required
[[Page 52018]]
to identify the particular version of a standard incorporated by
reference in a regulation.\298\ When an updated version of a standard
is published, an agency must revise its regulation if it seeks to
incorporate any of the new material.
---------------------------------------------------------------------------
\298\ See, e.g., 1 CFR 51.1(f) (``Incorporation by reference of
a publication is limited to the edition of the publication that is
approved [by the Office of Federal Register. Future amendments or
revisions of the publication are not included.'').
---------------------------------------------------------------------------
WCAG 2.1 is reasonably available to interested parties. Free copies
of WCAG 2.1 are available online on the W3C[supreg]'s website at
https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F]. In
addition, a copy of WCAG 2.1 is also available for inspection at the
Disability Rights Section, Civil Rights Division, U.S. Department of
Justice, 150 M St. NE, 9th Floor, Washington, DC 20002 by appointment.
VII. Proposed Regulatory Text
List of Subjects for 28 CFR Part 35
Administrative practice and procedure, Civil rights,
Communications, Incorporation by reference, Individuals with
disabilities, State and local requirements.
By the authority vested in me as Attorney General by law, including
5 U.S.C. 301; 28 U.S.C. 509, 510; sections 201 and 204 of the of the
Americans with Disabilities Act, Public Law 101-336, as amended, and
section 506 of the ADA Amendments Act of 2008, Public Law. 110-325, 28
CFR part 35 is proposed to be amended as follows--
PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES
0
1. The authority citation for part 35 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134,
12131, and 12205a.
Subpart A--General
0
2. Amend Sec. 35.104 by adding definitions for Archived web content,
Conventional electronic documents, Mobile applications (apps), Special
district government, Total population, WCAG 2.1, and Web content in
alphabetical order to read as follows:
Sec. 35.104 Definitions.
* * * * *
Archived web content means web content that--
(1) Is maintained exclusively for reference, research, or
recordkeeping;
(2) Is not altered or updated after the date of archiving; and
(3) Is organized and stored in a dedicated area or areas clearly
identified as being archived.
* * * * *
Conventional electronic documents means web content or content in
mobile apps that is in the following electronic file formats: portable
document formats (``PDF''), word processor file formats, presentation
file formats, spreadsheet file formats, and database file formats.
* * * * *
Mobile applications (``apps'') means software applications that are
downloaded and designed to run on mobile devices, such as smartphones
and tablets.
* * * * *
Special district government means a public entity--other than a
county, municipality, or township, or independent school district--
authorized by State law to provide one function or a limited number of
designated functions with sufficient administrative and fiscal autonomy
to qualify as a separate government and whose population is not
calculated by the United States Census Bureau in the most recent
decennial Census or Small Area Income and Poverty Estimates.
* * * * *
Total population means the population estimate for a public entity
as calculated by the United States Census Bureau in the most recent
decennial Census or, if a public entity is an independent school
district, the population estimate as calculated by the United States
Census Bureau in the most recent Small Area Income and Poverty
Estimates.
* * * * *
WCAG 2.1 means the Web Content Accessibility Guidelines (``WCAG'')
2.1, W3C[supreg] Recommendation 05 June 2018, https://www.w3.org/TR/2018/REC-WCAG21-20180605/ [https://perma.cc/UB8A-GG2F]. WCAG 2.1 is
incorporated by reference elsewhere in this part (see Sec. 35.200 and
35.202).
Web content means information or sensory experience--including the
encoding that defines the content's structure, presentation, and
interactions--that is communicated to the user by a web browser or
other software. Examples of web content include text, images, sounds,
videos, controls, animations, and conventional electronic documents.
Subpart H--Web and Mobile Accessibility
0
3. Add new subpart H to read as follows:
Subpart H--Web and Mobile Accessibility
Sec.
35.200 Requirements for web and mobile accessibility.
35.201 Exceptions.
35.202 Conforming alternate versions.
35.203 Equivalent facilitation.
35.204 Duties.
35.205-35.209 [Reserved]
Sec. 35.200 Requirements for web and mobile accessibility.
(a) General. A public entity shall ensure that the following are
readily accessible to and usable by individuals with disabilities:
(1) Web content that a public entity makes available to members of
the public or uses to offer services, programs, or activities to
members of the public; and
(2) Mobile apps that a public entity makes available to members of
the public or uses to offer services, programs, or activities to
members of the public.
(b) Requirements
(1) Effective two years from the publication of this rule in final
form, a public entity, other than a special district government, with a
total population of 50,000 or more shall ensure that the web content
and mobile apps it makes available to members of the public or uses to
offer services, programs, or activities to members of the public comply
with Level A and Level AA success criteria and conformance requirements
specified in WCAG 2.1, unless the public entity can demonstrate that
compliance with this section would result in a fundamental alteration
in the nature of a service, program, or activity or in undue financial
and administrative burdens.
(2) Effective three years from the publication of this rule in
final form, a public entity with a total population of less than 50,000
or any public entity that is a special district government shall ensure
that the web content and mobile apps it makes available to members of
the public or uses to offer services, programs, or activities to
members of the public comply with Level A and Level AA success criteria
and conformance requirements specified in WCAG 2.1, unless the public
entity can demonstrate that compliance with this section would result
in a fundamental alteration in the nature of a service, program, or
activity or in undue financial and administrative burdens.
(3) WCAG 2.1 is incorporated by reference into this section with
the approval of the Director of the Federal
[[Page 52019]]
Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved
incorporation by reference (``IBR'') material is available for
inspection at the U.S. Department of Justice and at the National
Archives and Records Administration (``NARA''). Contact the U.S.
Department of Justice at: Disability Rights Section, Civil Rights
Division, U.S. Department of Justice, 150 M St. NE, 9th Floor,
Washington, DC 20002; ADA Information Line: (800) 514-0301 (voice) or
1-833-610-1264 (TTY); website: www.ada.gov. For information on the
availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email [email protected]. The
material may be obtained from the World Wide Web Consortium
(``W3C[supreg]'') Web Accessibility Initiative (``WAI''), 401 Edgewater
Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-2711; email:
[email protected]; website: www.w3.org/TR/2018/REC-WCAG21-20180605/
[https://perma.cc/UB8A-GG2F].
Sec. 35.201 Exceptions.
The requirements of Sec. 35.200 of this chapter do not apply to
the following:
(a) Archived web content. Archived web content as defined in Sec.
35.104 of this chapter.
(b) Preexisting conventional electronic documents. Conventional
electronic documents created by or for a public entity that are
available on a public entity's website or mobile app before the date
the public entity is required to comply with this rule, unless such
documents are currently used by members of the public to apply for,
gain access to, or participate in a public entity's services, programs,
or activities.
(c) Web content posted by a third party. Web content posted by a
third party that is available on a public entity's website.
(d) Linked third-party web content. Third-party web content linked
from a public entity's website, unless the public entity uses the
third-party web content to allow members of the public to participate
in or benefit from the public entity's services, programs, or
activities.
(e) Public postsecondary institutions: password-protected course
content. Except as provided in paragraphs (e)(1) and (2) of this
section, course content available on a public entity's password-
protected or otherwise secured website for admitted students enrolled
in a specific course offered by a public postsecondary institution.
(1) This exception does not apply if a public entity is on notice
that an admitted student with a disability is pre-registered in a
specific course offered by a public postsecondary institution and that
the student, because of a disability, would be unable to access the
content available on the public entity's password-protected or
otherwise secured website for the specific course. In such
circumstances, all content available on the public entity's password-
protected or otherwise secured website for the specific course must
comply with the requirements of Sec. 35.200 by the date the academic
term begins for that course offering. New content added throughout the
term for the course must also comply with the requirements of Sec.
35.200 at the time it is added to the website.
(2) This exception does not apply once a public entity is on notice
that an admitted student with a disability is enrolled in a specific
course offered by a public postsecondary institution after the start of
the academic term and that the student, because of a disability, would
be unable to access the content available on the public entity's
password-protected or otherwise secured website for the specific
course. In such circumstances, all content available on the public
entity's password-protected or otherwise secured website for the
specific course must comply with the requirements of Sec. 35.200
within five business days of such notice. New content added throughout
the term for the course must also comply with the requirements of Sec.
35.200 at the time it is added to the website.
(f) Public elementary and secondary schools: password-protected
class or course content. Except as provided in paragraphs (f)(1)
through (4) of this section, class or course content available on a
public entity's password-protected or otherwise secured website for
students enrolled, or parents of students enrolled, in a specific class
or course at a public elementary or secondary school.
(1) This exception does not apply if the public entity is on notice
of the following: a student with a disability is pre-registered in a
specific class or course offered by a public elementary or secondary
school and that the student, because of a disability, would be unable
to access the content available on the public entity's password-
protected or otherwise secured website for the specific class or
course. In such circumstances, all content available on the public
entity's password-protected or otherwise secured website for the
specific class or course must comply with the requirements of Sec.
35.200 by the date the term begins for that class or course. New
content added throughout the term for the class or course must also
comply with the requirements of Sec. 35.200 at the time it is added to
the website.
(2) This exception does not apply if the public entity is on notice
of the following: a student is pre-registered in a public elementary or
secondary school's class or course, the student's parent has a
disability, and the parent, because of a disability, would be unable to
access the content available on the password-protected or otherwise
secured website for the specific class or course. In such
circumstances, all content available on the public entity's password-
protected or otherwise secured website for the specific class or course
must comply with the requirements of Sec. 35.200 by the date the term
begins for that class or course. New content added throughout the term
for the class or course must also comply with the requirements of Sec.
35.200 at the time it is added to the website.
(3) This exception does not apply once a public entity is on notice
of the following: a student with a disability is enrolled in a public
elementary or secondary school's class or course after the term begins
and that the student, because of a disability, would be unable to
access the content available on the public entity's password-protected
or otherwise secured website for the specific class or course. In such
circumstances, all content available on the public entity's password-
protected or otherwise secured website for the specific class or course
must comply with the requirements of Sec. 35.200 within five business
days of such notice. New content added throughout the term for the
class or course must also comply with the requirements of Sec. 35.200
at the time it is added to the website.
(4) This exception also does not apply once a public entity is on
notice of the following: a student is enrolled in a public elementary
or secondary school's class or course after the term begins, and the
student's parent has a disability, and the parent, because of a
disability, would be unable to access the content available on the
public entity's password-protected or otherwise secured website for the
specific class or course. In such circumstances, all content available
on the public entity's password-protected or otherwise secured website
for the specific class or course must comply with the requirements of
Sec. 35.200 within five business days of such notice. New content
added throughout the term for the class or course must also comply with
the requirements of Sec. 35.200 at the time it is added to the
website.
[[Page 52020]]
(g) Individualized, password-protected documents. Conventional
electronic documents that are: (1) about a specific individual, their
property, or their account; and (2) password-protected or otherwise
secured.
Sec. 35.202 Conforming alternate versions.
(a) A public entity may use conforming alternate versions of
websites and web content, as defined by WCAG 2.1, to comply with Sec.
35.200 only where it is not possible to make websites and web content
directly accessible due to technical or legal limitations.
(b) WCAG 2.1 is incorporated by reference into this section with
the approval of the Director of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. All approved incorporation by reference
(``IBR'') material is available for inspection at the U.S. Department
of Justice and at the National Archives and Records Administration
(``NARA''). Contact the U.S. Department of Justice at: Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, 150
M St. NE, 9th Floor, Washington, DC 20002; ADA Information Line: (800)
514-0301 (voice) or 1-833-610-1264 (TTY); website: www.ada.gov. For
information on the availability of this material at NARA, visit
www.archives.gov/federal-register/cfr/ibr-locations.html or email
[email protected]. The material may be obtained from the World
Wide Web Consortium (``W3C[supreg]'') Web Accessibility Initiative
(``WAI''), 401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone:
(339) 273-2711; email: [email protected]; website: www.w3.org/TR/2018/REC-WCAG21-20180605/ [https://perma.cc/UB8A-GG2F].
Sec. 35.203 Equivalent facilitation.
Nothing in this subpart prevents the use of designs, methods, or
techniques as alternatives to those prescribed, provided that the
alternative designs, methods or techniques result in substantially
equivalent or greater accessibility and usability of the web content or
mobile app.
Sec. 35.204 Duties.
Where a public entity can demonstrate that full compliance with the
requirements of Sec. 35.200 would result in a fundamental alteration
in the nature of a service, program, or activity or in undue financial
and administrative burdens, compliance with Sec. 35.200 is required to
the extent that it does not result in a fundamental alteration or undue
financial and administrative burdens. In those circumstances where
personnel of the public entity believe that the proposed action would
fundamentally alter the service, program, or activity or would result
in undue financial and administrative burdens, a public entity has the
burden of proving that compliance with Sec. 35.200 would result in
such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the head of a public
entity or their designee after considering all resources available for
use in the funding and operation of the service, program, or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action would result in such an
alteration or such burdens, a public entity shall take any other action
that would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with disabilities receive the
benefits or services provided by the public entity to the maximum
extent possible.
Sec. Sec. 35.205-35.209 [Reserved]
Dated: July 21, 2023.
Merrick B. Garland,
Attorney General.
[FR Doc. 2023-15823 Filed 8-3-23; 8:45 am]
BILLING CODE 4410-13-P
