Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities, 31320-31396 [2024-07758]
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Federal Register / Vol. 89, No. 80 / Wednesday, April 24, 2024 / Rules and Regulations
DEPARTMENT OF JUSTICE
28 CFR Part 35
[CRT Docket No. 144; AG Order No. 5919–
2024]
RIN 1190–AA79
Nondiscrimination on the Basis of
Disability; Accessibility of Web
Information and Services of State and
Local Government Entities
Civil Rights Division,
Department of Justice.
ACTION: Final rule.
AGENCY:
The Department of Justice
(‘‘Department’’) issues its final rule
revising the regulation implementing
title II of the Americans with
Disabilities Act (‘‘ADA’’) to establish
specific requirements, including the
adoption of specific technical standards,
for making accessible the services,
programs, and activities offered by State
and local government entities to the
public through the web and mobile
applications (‘‘apps’’).
DATES:
Effective date: This rule is effective
June 24, 2024.
Compliance dates: A public entity,
other than a special district government,
with a total population of 50,000 or
more shall begin complying with this
rule April 24, 2026. A public entity with
a total population of less than 50,000 or
any public entity that is a special
district government shall begin
complying with this rule April 26, 2027.
Incorporation by reference: The
incorporation by reference of certain
material listed in the rule is approved
by the Director of the Federal Register
as of June 24, 2024.
FOR FURTHER INFORMATION CONTACT:
Rebecca B. Bond, Chief, Disability
Rights Section, Civil Rights Division,
U.S. Department of Justice, at (202) 307–
0663 (voice or TTY). This is not a tollfree number. Information may also be
obtained from the Department’s toll-free
ADA Information Line at (800) 514–
0301 (voice) or 1–833–610–1264 (TTY).
You may obtain copies of this rule in an
alternative format by calling the ADA
Information Line at (800) 514–0301
(voice) or 1–833–610–1264 (TTY). This
rule is also available on www.ada.gov.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
I. Executive Summary
A. Purpose of and Need for the Rule
Title II of the ADA provides that no
qualified individual with a disability
shall, by reason of such disability, be
excluded from participation in or
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denied the benefits of the services,
programs, or activities of a public
entity.1 The Department has
consistently made clear that the title II
nondiscrimination requirements apply
to all services, programs, and activities
of public entities (also referred to as
‘‘government services’’), including those
provided via the web. It also includes
those provided via mobile apps.2 In this
rule, the Department establishes
technical standards for web content and
mobile app accessibility to give public
entities greater clarity in exactly how to
meet their ADA obligations and to help
ensure equal access to government
services for individuals with
disabilities.
Public entities are increasingly
providing the public access to
government services through their web
content and mobile apps. For example,
government websites and mobile apps
often allow the public to obtain
information or correspond with local
officials without having to wait in line
or be placed on hold. Members of the
public can also pay fines, apply for State
benefits, renew State-issued
identification, register to vote, file taxes,
obtain up-to-date health and safety
resources, request copies of vital
records, access mass transit schedules,
and complete numerous other tasks via
government websites. Individuals can
perform many of these same functions
on mobile apps. Often, however, State
and local government entities’ web- and
mobile app-based services are not
designed or built accessibly and as a
result are not equally available to
individuals with disabilities. Just as
stairs can exclude people who use
wheelchairs from accessing government
buildings, inaccessible web content and
mobile apps can exclude people with a
range of disabilities from accessing
government services.
It is critical to ensure that individuals
with disabilities can access important
web content and mobile apps quickly,
easily, independently, privately, and
equally. Accessible web content and
mobile apps help to make this possible.
By allowing individuals with
disabilities to engage more fully with
their governments, accessible web
content and mobile apps also promote
the equal enjoyment of fundamental
1 42 U.S.C. 12132. The Department uses the
phrases ‘‘State and local government entities’’ and
‘‘public entities’’ interchangeably throughout this
rule to refer to ‘‘public entit[ies]’’ as defined in 42
U.S.C. 12131(1) that are covered under part A of
title II of the ADA.
2 As discussed in the proposed definition in this
rule, mobile apps are software applications that are
downloaded and designed to run on mobile
devices, such as smartphones and tablets.
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constitutional rights, such as rights with
respect to speech, assembly, association,
petitioning, voting, and due process of
law.
Accordingly, the Department is
establishing technical requirements to
provide concrete standards to public
entities on how to fulfill their
obligations under title II to provide
equal access to all of their services,
programs, and activities that are
provided via the web and mobile apps.
The Department believes, and public
comments have reinforced, that the
requirements described in this rule are
necessary to assure ‘‘equality of
opportunity, full participation,
independent living, and economic selfsufficiency’’ for individuals with
disabilities, as set forth in the ADA.3
B. Legal Authority
On July 26, 1990, President George
H.W. Bush signed into law the ADA, a
comprehensive civil rights law
prohibiting discrimination on the basis
of disability.4 Title II of the ADA, which
this rule addresses, applies to State and
local government entities. Title II
extends the prohibition on
discrimination established by section
504 of the Rehabilitation Act of 1973
(‘‘Rehabilitation Act’’), as amended, 29
U.S.C. 794 (‘‘section 504’’), to all
activities of State and local government
entities regardless of whether the
entities receive Federal financial
assistance.5 Part A of title II protects
qualified individuals with disabilities
from discrimination on the basis of
disability in services, programs, and
activities of State and local government
entities. Section 204(a) of the ADA
directs the Attorney General to issue
regulations implementing part A of title
II but exempts matters within the scope
of the authority of the Secretary of
Transportation under section 223, 229,
or 244.6
The Department is the only Federal
agency with authority to issue
regulations under title II, part A, of the
ADA regarding the accessibility of State
and local government entities’ web
content and mobile apps. In addition,
under Executive Order 12250, the
Department is responsible for ensuring
consistency and effectiveness in the
implementation of section 504 across
the Federal Government (aside from
provisions relating to equal
3 42
U.S.C. 12101(a)(7).
U.S.C. 12101–12213.
5 42 U.S.C. 12131–12165.
6 See 42 U.S.C. 12134. Section 229(a) and section
244 of the ADA direct the Secretary of
Transportation to issue regulations implementing
part B of title II, except for section 223. See 42
U.S.C. 12149(a), 12164.
4 42
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employment).7 Given Congress’s intent
for parity between section 504 and title
II of the ADA, the Department must also
ensure the consistency of any related
agency interpretations of those
provisions.8 The Department, therefore,
also has a lead role in coordinating
interpretations of section 504 (again,
aside from provisions relating to equal
employment), including its application
to web content and mobile apps, across
the Federal Government.
C. Organization of This Rule
Appendix D to 28 CFR part 35
provides a section-by-section analysis of
the Department’s changes to the title II
regulation and the reasoning behind
those changes, in addition to responses
to public comments received on the
notice of proposed rulemaking
(‘‘NPRM’’).9 The section of appendix D
entitled ‘‘Public Comments on Other
Issues in Response to NPRM’’ discusses
public comments on several issues that
are not otherwise specifically addressed
in the section-by-section analysis. The
Final Regulatory Impact Analysis
(‘‘FRIA’’) and Final Regulatory
Flexibility Analysis (‘‘FRFA’’)
accompanying this rulemaking both
contain further responses to comments
relating to those analyses.
D. Overview of Key Provisions of This
Final Rule
In this final rule, the Department adds
a new subpart H to the title II ADA
regulation, 28 CFR part 35, that sets
forth technical requirements for
ensuring that web content that State and
local government entities provide or
make available, directly or through
contractual, licensing, or other
arrangements, is readily accessible to
and usable by individuals with
disabilities. Web content is defined by
§ 35.104 to mean the information and
sensory experience to be communicated
to the user by means of a user agent
(e.g., a web browser), including code or
markup that defines the content’s
structure, presentation, and interactions.
This includes text, images, sounds,
videos, controls, animations, and
conventional electronic documents.
Subpart H also sets forth technical
requirements for ensuring the
accessibility of mobile apps that a
public entity provides or makes
available, directly or through
contractual, licensing, or other
arrangements.
The Department adopts an
internationally recognized accessibility
standard for web access, the Web
Content Accessibility Guidelines
(‘‘WCAG’’) 2.1 10 published in June
2018, https://www.w3.org/TR/2018/
REC-WCAG21-20180605/ and https://
perma.cc/UB8A-GG2F,11 as the
technical standard for web content and
mobile app accessibility under title II of
the ADA. As will be explained in more
detail, the Department is requiring that
public entities comply with the WCAG
2.1 Level AA success criteria and
conformance requirements.12 The
applicable technical standard will be
referred to hereinafter as ‘‘WCAG 2.1.’’
The applicable conformance level will
be referred to hereinafter as ‘‘Level AA.’’
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To the extent there are differences
between WCAG 2.1 Level AA and the
standards articulated in this rule, the
standards articulated in this rule
prevail. As noted below, WCAG 2.1
Level AA is not restated in full in this
final rule but is instead incorporated by
reference.
In recognition of the challenges that
small public entities may face with
respect to resources for implementing
the new requirements, the Department
has staggered the compliance dates for
public entities according to their total
population.13 This final rule in
§ 35.200(b)(1) specifies that a public
entity, other than a special district
government,14 with a total population of
50,000 or more must ensure that web
content and mobile apps that the public
entity provides or makes available,
directly or through contractual,
licensing, or other arrangements,
comply with WCAG 2.1 Level AA
success criteria and conformance
requirements beginning two years after
the publication of this final rule. Under
§ 35.200(b)(2), a public entity with a
total population of less than 50,000
must comply with these requirements
beginning three years after the
publication of this final rule. In
addition, under § 35.200(b)(2), all
special district governments have three
years following the publication of this
final rule before they must begin
complying with these requirements.
After the compliance date, ongoing
compliance with this final rule is
required.
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 ...........................................................................
Three years after publication of the final rule.
Two years after publication of the final rule.
In addition, the Department has set
forth exceptions from compliance with
the technical standard required under
§ 35.200 for certain types of content,
which are described in detail below in
the section-by-section analysis. If the
content falls under an exception, that
means that the public entity generally
does not need to make the content
conform to WCAG 2.1 Level AA.
As will be explained more fully, the
Department has set forth five specific
exceptions from compliance with the
technical standard required under
§ 35.200: (1) archived web content; (2)
7 E.O. 12250 secs. 1–201(c), 1–503 (Nov. 2, 1980),
45 FR 72995, 72995, 72997 (Nov. 4, 1980).
8 U.S. Dep’t of Just., Disability Rights Section:
Federal Coordination of Section 504 and Title II of
the ADA, C.R. Div. (Oct. 12, 2021), https://
www.justice.gov/crt/disability-rightssection#:∼:text=Federal%20Coordination%20of
%20Section%20504,required%20by%20Executive
%20Order%2012250 [https://perma.cc/S5JX-WD82]
(see Civil Rights Division (CRT) Memorandum on
Federal Agencies’ Implementation of Title II of the
Americans with Disabilities Act and Section 504 of
the Rehabilitation Act under the heading ‘‘Section
504 and ADA Federal Coordination Resources’’).
9 88 FR 51948 (Aug. 4, 2023).
10 Copyright© 2023 W3C®. This document
includes material copied from or derived from
https://www.w3.org/TR/2018/REC-WCAG2120180605/ and https://perma.cc/UB8A-GG2F. As
explained elsewhere, WCAG 2.1 was updated in
2023, but this rule requires conformance to the 2018
version.
11 The Permalink used for WCAG 2.1 throughout
this rule shows the 2018 version of WCAG 2.1 as
it appeared on W3C’s website at the time the NPRM
was published.
12 As explained in more detail under ‘‘WCAG
Conformance Level’’ in the section-by-section
analysis of § 35.200 in appendix D, conformance to
Level AA requires satisfying the success criteria
labeled Level A as well as those labeled Level AA,
in addition to satisfying the relevant conformance
requirements.
13 Total population, defined in § 35.104 and
explained further in the section-by-section analysis,
is generally determined by reference to the
population estimate for a public entity (or the
population estimate for a public entity of which an
entity is an instrumentality) as calculated by the
United States Census Bureau.
14 See U.S. Census Bureau, Special District
Governments, https://www.census.gov/glossary/
?term=Special+district+governments [https://
perma.cc/8V43-KKL9]. ‘‘Special district
government’’ is also defined in this rule at § 35.104.
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preexisting conventional electronic
documents, unless such documents are
currently used to apply for, gain access
to, or participate in the public entity’s
services, programs, or activities; (3)
content posted by a third party, unless
the third party is posting due to
contractual, licensing, or other
arrangements with the public entity; (4)
conventional electronic documents that
are about a specific individual, their
property, or their account and that are
password-protected or otherwise
secured; and (5) preexisting social
media posts. As discussed further, if one
of these exceptions applies, then the
public entity’s web content or content in
mobile apps that is covered by an
exception would not need to comply
with the rule’s technical standard. The
Department has developed these
exceptions because it believes that
requiring public entities to make the
particular content described in these
categories accessible under all
circumstances could be too burdensome
at this time. In addition, requiring
accessibility in all circumstances may
divert important resources from making
accessible key web content and mobile
apps that public entities provide or
make available. However, upon request
from a specific individual, a public
entity may have to provide the web
content or content in mobile apps to
that individual in an accessible format
to comply with the entity’s existing
obligations under other regulatory
provisions implementing title II of the
ADA. For example, archived town
meeting minutes from 2011 might be
covered by an exception from the
requirement to conform to WCAG 2.1
Level AA. But if a person with low
vision, for example, requests an
accessible version, then the town would
still need to address the person’s request
under its existing effective
communication obligations in 28 CFR
35.160. The way that the town does this
could vary based on the facts. For
example, in some circumstances,
providing a large-print version of the
minutes might satisfy the town’s
obligations, and in other circumstances
it might need to provide an electronic
version that conforms to the aspects of
WCAG 2.1 Level AA relevant to the
person’s particular access needs.
The final rule contains a series of
other mechanisms that are designed to
make it feasible for public entities to
comply with the rule. The final rule
makes clear in § 35.202 the limited
circumstances in which ‘‘conforming
alternate versions’’ of web content, as
defined in WCAG 2.1, can be used as a
means of achieving accessibility. As
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WCAG 2.1 defines it, a conforming
alternate version is a separate version of
web content that is accessible, up to
date, contains the same information and
functionality as the inaccessible web
content, and can be reached in
particular ways, such as through a
conforming page or an accessibilitysupported mechanism. However, the
Department is concerned that WCAG 2.1
could be interpreted to permit a
segregated approach and a worse
experience for individuals with
disabilities. The Department also
understands that, in practice, it can be
difficult to maintain conforming
alternate versions because it is often
challenging to keep two different
versions of web content up to date. For
these reasons, as discussed in the
section-by-section analysis of § 35.202,
conforming alternate versions are
permissible only when it is not possible
to make web content directly accessible
due to technical or legal limitations.
Also, under § 35.203, the final rule
allows a public entity flexibility to show
that its use of other designs, methods, or
techniques as alternatives to WCAG 2.1
Level AA provides substantially
equivalent or greater accessibility and
usability of the web content or mobile
app. Nothing in this final rule prohibits
an entity from going above and beyond
the minimum accessibility standards
this rule sets out.
Additionally, the final rule in
§§ 35.200(b)(1) and (2) and 35.204
explains that conformance to WCAG 2.1
Level AA is not required under title II
of the ADA to the extent that such
conformance would result in a
fundamental alteration in the nature of
a service, program, or activity of the
public entity or in undue financial and
administrative burdens.
The final rule also explains in
§ 35.205 the limited circumstances in
which a public entity that is not in full
compliance with the technical standard
will be deemed to have met the
requirements of § 35.200. As discussed
further in the section-by-section
analysis of § 35.205, a public entity will
be deemed to have satisfied its
obligations under § 35.200 in the limited
circumstance in which the public entity
can demonstrate that its
nonconformance to the technical
standard has such a minimal impact on
access that it would not affect the ability
of individuals with disabilities to use
the public entity’s web content or
mobile app to access the same
information, engage in the same
interactions, conduct the same
transactions, and otherwise participate
in or benefit from the same services,
programs, and activities as individuals
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without disabilities, in a manner that
provides substantially equivalent
timeliness, privacy, independence, and
ease of use.
More information about these
provisions is provided in the section-bysection analysis.
E. Summary of Costs and Benefits
To estimate the costs and benefits
associated with this rule, the
Department conducted a FRIA. This
analysis is required for significant
regulatory actions under Executive
Order 12866, as amended.15 The FRIA
serves to inform the public about the
rule’s costs and benefits to society,
taking into account both quantitative
and qualitative costs and benefits. A
detailed summary of the FRIA is
included in Section IV of this preamble.
Table 2 below shows a high-level
overview of the Department’s monetized
findings. Further, this rule will benefit
individuals with disabilities uniquely
and in their day-to-day lives in many
ways that could not be quantified due
to unavailable data. Non-monetized
costs and benefits are discussed in the
FRIA.
Comparing annualized costs and
benefits of this rule, monetized benefits
to society outweigh the costs. Net
annualized benefits over the first 10
years following publication of this rule
total $1.9 billion per year using a 3
percent discount rate and $1.5 billion
per year using a 7 percent discount rate
(Table 2). Additionally, beyond this 10year period, benefits are likely to
continue to accrue at a greater rate than
costs because many of the costs are
upfront costs and the benefits tend to
have a delay before beginning to accrue.
To consider the relative magnitude of
the estimated costs of this regulation,
the Department compares the costs to
revenues for public entities. Because
calculating this ratio for every public
entity would be impractical, the
Department used the estimated average
annualized cost compared to the average
annual revenue by each public entity
type. The costs for each public entity
type and size are generally estimated to
be below 1 percent of revenues (the one
exception is small independent
community colleges, for which the costto-revenue ratio is 1.05 percent and 1.10
percent using a 3 percent and 7 percent
15 See E.O. 14094, 88 FR 21879 (Apr. 6, 2023);
E.O. 13563, 76 FR 3821 (Jan. 18, 2011); E.O. 13272,
67 FR 53461 (Aug. 13, 2002); E.O. 13132, 64 FR
43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735
(Sept. 30, 1993).
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discount rate, respectively),16 so the
Department does not believe the rule
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will be unduly burdensome or costly for
public entities.17
TABLE 2—10-YEAR AVERAGE ANNUALIZED COMPARISON OF COSTS AND BENEFITS
3% Discount
rate
Figure
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Average annualized costs (millions) ........................................................................................................................
Average annualized benefits (millions) ....................................................................................................................
Net benefits (millions) ..............................................................................................................................................
Cost-to-benefit ratio .................................................................................................................................................
II. Relationship to Other Laws
The ADA and the Department’s
implementing regulation state that
except as otherwise provided, the ADA
shall not be construed to apply a lesser
standard than title V of the
Rehabilitation Act (29 U.S.C. 791) or its
accompanying regulations.18 They
further state that the ADA does not
invalidate or limit the remedies, rights,
and procedures of any other laws that
provide greater or equal protection for
the rights of individuals with
disabilities or individuals associated
with them.19
The Department recognizes that
entities subject to title II of the ADA
may also be subject to other statutes that
prohibit discrimination on the basis of
disability. Compliance with the
Department’s title II regulation does not
necessarily ensure compliance with
other statutes and their implementing
regulations. Title II entities are also
obligated to fulfill the ADA’s title I
requirements in their capacity as
employers,20 and those requirements are
distinct from the obligations under this
rule.
Education is another context in which
entities have obligations to comply with
other laws imposing affirmative
obligations regarding individuals with
disabilities. The Department of
Education’s regulations implementing
the Individuals with Disabilities
Education Act (‘‘IDEA’’) and section 504
of the Rehabilitation Act include
longstanding, affirmative obligations for
covered schools to identify children
with disabilities, and both require
covered schools to provide a free
appropriate public education.21 This
final rule builds on, and does not
supplant, those preexisting
requirements. A public entity must
continue to meet all of its existing
obligations under other laws.
16 However, the Department notes that revenue
for small independent community colleges was
estimated using the 2012 Census of Governments,
so revenue for small independent community
colleges would likely be underestimated if small
independent community colleges had a greater
share of total local government revenue in 2022
than in 2012. If this were true, the Department
expects that the cost-to-revenue ratio for small
independent community colleges would be lower.
17 As a point of reference, the United States Small
Business Administration advises agencies that a
potential indicator that the impact of a regulation
may be ‘‘significant’’ is whether the costs exceed 1
percent of the gross revenues of the entities in a
particular sector, although the threshold may vary
based on the particular types of entities at issue. See
U.S. Small Bus. Admin., A Guide for Government
Agencies: How to Comply with the Regulatory
Flexibility Act, at 19 (Aug. 2017), https://
advocacy.sba.gov/wp-content/uploads/2019/07/
How-to-Comply-with-the-RFA-WEB.pdf [https://
perma.cc/PWL9-ZTW6]; see also U.S. Env’t Prot.
Agency, EPA’s Action Development Process: Final
Guidance for EPA Rulewriters: Regulatory
Flexibility Act, at 24 (Nov. 2006), https://
www.epa.gov/sites/default/files/2015-06/
documents/guidance-regflexact.pdf [https://
perma.cc/9XFZ-3EVA] (providing an illustrative
example of a hypothetical analysis under the RFA
in which, for certain small entities, economic
impact of ‘‘[l]ess than 1% for all affected small
entities’’ may be ‘‘presumed’’ to have ‘‘no
significant economic impact on a substantial
number of small entities’’).
18 42 U.S.C. 12201(a); 28 CFR 35.103(a).
19 42 U.S.C. 12201(b); 28 CFR 35.103(b).
20 42 U.S.C. 12111–12117.
21 See 20 U.S.C. 1412; 29 U.S.C. 794; 34 CFR
104.32 through 104.33.
22 42 U.S.C. 12101 et seq.
23 42 U.S.C. 12134(a), 12186(b).
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III. Background
A. ADA Statutory and Regulatory
History
The ADA broadly protects the rights
of individuals with disabilities in
important areas of everyday life, such as
in employment (title I), State and local
government entities’ services, programs,
and activities (title II, part A),
transportation (title II, part B), and
places of public accommodation (title
III). The ADA requires newly designed
and constructed or altered State and
local government entities’ facilities,
public accommodations, and
commercial facilities to be readily
accessible to and usable by individuals
with disabilities.22 Section 204(a) of title
II and section 306(b) of title III of the
ADA direct the Attorney General to
promulgate regulations to carry out the
provisions of titles II and III, other than
certain provisions dealing specifically
with transportation.23 Title II, part A,
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7% Discount
rate
$3,515.0
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applies to State and local government
entities and protects qualified
individuals with disabilities from
discrimination on the basis of disability
in services, programs, and activities of
State and local government entities.
On July 26, 1991, the Department
issued its final rules implementing title
II and title III, which are codified at 28
CFR part 35 (title II) and part 36 (title
III),24 and include the ADA Standards
for Accessible Design (‘‘ADA
Standards’’).25 At that time, the web was
in its infancy—and mobile apps did not
exist—so State and local government
entities did not use either the web or
mobile apps as a means of providing
services to the public. Thus, web
content and mobile apps were not
mentioned in the Department’s title II
regulation. Only a few years later,
however, as web content of general
interest became available, public
entities began using web content to
provide information to the public.
Public entities and members of the
public also now rely on mobile apps for
critical government services.
B. History of the Department’s Title II
Web-Related Interpretation and
Guidance
The Department first articulated its
interpretation that the ADA applies to
websites of covered entities in 1996.26
Under title II, this includes ensuring
that individuals with disabilities are
24 Title III prohibits discrimination on the basis of
disability in the full and equal enjoyment of places
of public accommodation (privately operated
entities whose operations affect commerce and fall
within at least one of 12 categories listed in the
ADA, such as restaurants, movie theaters, schools,
day care facilities, recreational facilities, and
doctors’ offices) and requires newly constructed or
altered places of public accommodation—as well as
commercial facilities (facilities intended for
nonresidential use by a private entity and whose
operations affect commerce, such as factories,
warehouses, and office buildings)—to comply with
the ADA Standards. 42 U.S.C. 12181–12189.
25 See 28 CFR 35.104, 36.104.
26 See Letter for Tom Harkin, U.S. Senator, from
Deval L. Patrick, Assistant Attorney General, Civil
Rights Division, U.S. Department of Justice (Sept. 9,
1996), https://www.justice.gov/crt/foia/file/666366/
download [https://perma.cc/56ZB-WTHA].
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not, by reason of such disability,
excluded from participation in or
denied the benefits of the services,
programs, or activities offered by State
and local government entities, including
those offered via the web, such as
education services, voting, town
meetings, vaccine registration, tax filing
systems, applications for housing, and
applications for benefits.27 The
Department has since reiterated this
interpretation in a variety of online
contexts.28 Title II of the ADA also
applies when public entities use mobile
apps to offer their services, programs, or
activities.
As with many other statutes, the
ADA’s requirements are broad and its
implementing regulations do not
include specific standards for every
obligation under the statute. This has
been the case in the context of web
accessibility under the ADA. Because
the Department had not previously
adopted specific technical requirements
for web content and mobile apps
through rulemaking, public entities
have not had specific direction on how
to comply with the ADA’s general
requirements of nondiscrimination and
effective communication. However,
public entities still must comply with
these ADA obligations with respect to
their web content and mobile apps,
including before this rule’s effective
date.
The Department has consistently
heard from members of the public—
including public entities and
individuals with disabilities—that there
is a need for additional information on
how to specifically comply with the
27 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. 21, 2022), https://
www.justice.gov/opa/press-release/file/1553291/
download [https://perma.cc/9AMQ-GPP3]; Consent
Decree, Dudley v. Miami Univ. (Oct. 13, 2016),
https://www.ada.gov/miami_university_
cd.html[https://perma.cc/T3FX-G7RZ]; Settlement
Agreement Between the United States of America
and Nueces County, Texas Under the Americans
with Disabilities Act (effective Jan. 30, 2015),
https://archive.ada.gov/nueces_co_tx_pca/nueces_
co_tx_sa.html [https://perma.cc/TX66-WQY7];
Settlement Agreement Between the United States of
America, Louisiana Tech University, and the Board
of Supervisors for the University of Louisiana
System Under the Americans with Disabilities Act
(July 22, 2013), https://www.ada.gov/louisianatech.htm [https://perma.cc/78ES-4FQR]; Settlement
Agreement Between the United States of America
and the City and County of Denver, Colorado Under
the Americans with Disabilities Act (Jan. 8, 2018),
https://www.ada.gov/denver_pca/denver_sa.html
[https://perma.cc/U7VE-MBSG].
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28 See
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ADA in this context. In June 2003, the
Department published a document
entitled ‘‘Accessibility of State and
Local Government websites to People
with Disabilities,’’ which provides tips
for State and local government entities
on ways they can make their websites
accessible so that they can better ensure
that individuals with disabilities have
equal access to the services, programs,
and activities that are provided through
those websites.29
In March 2022, the Department
released additional guidance addressing
web accessibility for individuals with
disabilities.30 This guidance expanded
on the Department’s previous ADA
guidance by providing practical tips and
resources for making websites accessible
for both title II and title III entities. It
also reiterated the Department’s
longstanding interpretation that the
ADA applies to all services, programs,
and activities of covered entities,
including when they are offered via the
web.
The Department’s 2003 guidance on
State and local government entities’
websites noted that ‘‘an agency with an
inaccessible website may also meet its
legal obligations by providing an
alternative accessible way for citizens to
use the programs or services, such as a
staffed telephone information line,’’
while also acknowledging that this is
unlikely to provide an equal degree of
access.31 The Department’s March 2022
guidance did not include 24/7 staffed
telephone lines as an alternative to
accessible websites. Given the way the
modern web has developed, the
Department no longer believes 24/7
staffed telephone lines can realistically
provide equal opportunity to
individuals with disabilities. Websites—
and often mobile apps—allow members
of the public to get information or
request a service within just a few
minutes, and often to do so
independently. Getting the same
information or requesting the same
service using a staffed telephone line
takes more steps and may result in wait
times or difficulty getting the
information.
29 U.S. Dep’t of Just., Accessibility of State and
Local Government websites to People with
Disabilities, ADA.gov (June 2003), https://
www.ada.gov/websites2.htm [https://perma.cc/
Z7JT-USAN].
30 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].
31 U.S. Dep’t of Just., Accessibility of State and
Local Government websites to People with
Disabilities, ADA.gov (June 2003), https://
www.ada.gov/websites2.htm [https://perma.cc/
Z7JT-USAN].
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For example, State and local
government entities’ websites may allow
members of the public to quickly review
large quantities of information, like
information about how to register for
government services, information on
pending government ordinances, or
instructions about how to apply for a
government benefit. Members of the
public can then use government
websites to promptly act on that
information by, for example, registering
for programs or activities, submitting
comments on pending government
ordinances, or filling out an application
for a government benefit. A member of
the public could not realistically
accomplish these tasks efficiently over
the phone.
Additionally, a person with a
disability who cannot use an
inaccessible online tax form might have
to call to request assistance with filling
out either online or mailed forms, which
could involve significant delay, added
costs, and could require providing
private information such as banking
details or Social Security numbers over
the phone without the benefit of certain
security features available for online
transactions. A staffed telephone line
also may not be accessible to someone
who is deafblind, or who may have
combinations of other disabilities, such
as a coordination issue impacting typing
and an audio processing disability
impacting comprehension over the
phone. Finally, calling a staffed
telephone line lacks the privacy of
looking up information on a website. A
caller needing public safety resources,
for example, might be unable to access
a private location to ask for help on the
phone, whereas an accessible website
would allow users to privately locate
resources. For these reasons, the
Department does not now believe that a
staffed telephone line—even if it is
offered 24/7—provides equal
opportunity in the way that an
accessible website can.
C. The Department’s Previous Web
Accessibility-Related Rulemaking
Efforts
The Department has previously
pursued rulemaking efforts regarding
web accessibility under title II. On July
26, 2010, the Department’s advance
notice of proposed rulemaking
(‘‘ANPRM’’) entitled
‘‘Nondiscrimination on the Basis of
Disability; Accessibility of Web
Information and Services of State and
Local Government Entities and Public
Accommodations’’ was published in the
Federal Register.32 The ANPRM
32 75
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announced that the Department was
considering revising the regulations
implementing titles II and III of the ADA
to establish specific requirements for
State and local government entities and
public accommodations to make their
websites accessible to individuals with
disabilities.33 In the ANPRM, the
Department sought information on
various topics, including what
standards, if any, it should adopt for
web accessibility; whether the
Department should adopt coverage
limitations for certain entities, like
small businesses; and what resources
and services are available to make
existing websites accessible to
individuals with disabilities.34 The
Department also requested comments on
the costs of making websites accessible;
whether there are effective and
reasonable alternatives to make websites
accessible that the Department should
consider permitting; and when any web
accessibility requirements adopted by
the Department should become
effective.35 The Department received
approximately 400 public comments
addressing issues germane to both titles
II and III in response to the ANPRM.
The Department later announced that it
had decided to pursue separate
rulemakings addressing web
accessibility under titles II and III.36
On May 9, 2016, the Department
followed up on its 2010 ANPRM with a
detailed Supplemental ANPRM that was
published in the Federal Register.37 The
Supplemental ANPRM solicited public
comment about a variety of issues
regarding establishing technical
standards for web access under title II.38
The Department received more than 200
public comments in response to the title
II Supplemental ANPRM.
On December 26, 2017, the
Department published a document in
the Federal Register withdrawing four
rulemaking actions, including the titles
II and III web rulemakings, stating that
it was evaluating whether promulgating
specific web accessibility standards
through regulations was necessary and
appropriate to ensure compliance with
the ADA.39 The Department has also
33 Id.
34 75
FR 43465–43467.
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35 Id.
36 See U.S. Dep’t of Just., Statement of Regulatory
Priorities (Fall 2015), https://www.reginfo.gov/
public/jsp/eAgenda/StaticContent/201510/
Statement_1100.html [https://perma.cc/YF2LFTSK].
37 Nondiscrimination on the Basis of Disability;
Accessibility of Web Information and Services of
State and Local Government Entities, 81 FR 28658
(May 9, 2016).
38 81 FR 28662–28686.
39 Nondiscrimination on the Basis of Disability;
Notice of Withdrawal of Four Previously
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previously stated that it would continue
to review its entire regulatory landscape
and associated agenda, pursuant to the
regulatory reform provisions of
Executive Order 13771 and Executive
Order 13777.40 Those Executive orders
were revoked by Executive Order 13992
in early 2021.41
The Department is now reengaging in
efforts to promulgate regulations
establishing technical standards for web
accessibility as well as mobile app
accessibility for public entities. On
August 4, 2023, the Department
published an NPRM in the Federal
Register as part of this rulemaking
effort.42 The NPRM set forth the
Department’s specific proposals and
sought public feedback. The NPRM
included more than 60 questions for
public input.43 The public comment
period closed on October 3, 2023.44 The
Department received approximately 345
comments from members of the public,
including individuals with disabilities,
public entities, disability advocacy
groups, members of the accessible
technology industry, web developers,
and many others. The Department also
published a fact sheet describing the
NPRM’s proposed requirements in plain
language to help ensure that members of
the public understood the rule and had
an opportunity to provide feedback.45 In
addition, the Department attended
listening sessions with various
stakeholders while the public comment
period was open. Those sessions
provided important opportunities to
receive through an additional avenue
the information that members of the
public wanted to share about the
proposed rule. The three listening
sessions that the Department attended
were hosted by the U.S. Small Business
Administration (‘‘SBA’’) Office of
Advocacy, the Association on Higher
Education and Disability (‘‘AHEAD’’),
Announced Rulemaking Actions, 82 FR 60932 (Dec.
26, 2017).
40 See Letter for Charles E. Grassley, U.S. Senator,
from Stephen E. Boyd, Assistant Attorney General,
Civil Rights Division, U.S. Department of Justice
(Oct. 11, 2018), https://www.grassley.senate.gov/
imo/media/doc/2018-1011%20DOJ%20to%20Grassley%20%20ADA%20website%20Accessibility.pdf [https://
perma.cc/8JHS-FK2Q].
41 E.O. 13992 sec. 2, 86 FR 7049, 7049 (Jan. 20,
2021).
42 Nondiscrimination on the Basis of Disability;
Accessibility of Web Information and Services of
State and Local Government Entities, 88 FR 51948
(Aug. 4, 2023).
43 88 FR 51958–51986.
44 See 88 FR 51948.
45 U.S. Dep’t of Just., Fact Sheet: Notice of
Proposed Rulemaking on Accessibility of Web
Information and Services of State and Local
Government Entities, ADA.gov (July 20, 2023),
https://www.ada.gov/resources/2023-07-20-webnprm/# [https://perma.cc/B7JL-9CVS].
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31325
and the Great Lakes ADA Center at the
University of Illinois at Chicago, in
conjunction with the ADA National
Network. The sessions convened by the
SBA Office of Advocacy and the Great
Lakes ADA Center were open to
members of the public. There were
approximately 200 attendees at the SBA
session and 380 attendees at the Great
Lakes ADA Center session.46 The
session with AHEAD included two
representatives from AHEAD along with
five representatives from public
universities. The Department welcomed
the opportunity to hear from public
stakeholders. However, the Department
informed attendees that these listening
sessions did not serve as a substitute for
submitting written comments during the
notice and comment period.
D. Need for Department Action
1. Use of Web Content by Title II
Entities
As public comments have reinforced,
public entities regularly use the web to
offer services, programs, or activities to
the public.47 The web can often help
public entities streamline their services,
programs, or activities and disseminate
important information quickly and
effectively. For example, members of the
public routinely make online service
requests—from requesting streetlight
repairs and bulk trash pickups to
reporting broken parking meters—and
can often check the status of those
service requests online. Public entities’
websites also offer the opportunity for
people to, for example, renew their
vehicle registrations, submit complaints,
purchase event permits, reserve public
facilities, sign up for recreational
activities, and pay traffic fines and
property taxes, making some of these
46 U.S. Dep’t of Just., Ex Parte Communication
Record on Proposed Rule on Nondiscrimination on
the Basis of Disability; Accessibility of Web
Information and Services of State and Local
Government Entities and Public Accommodations
(Sept. 29, 2023), https://www.regulations.gov/
document/DOJ-CRT-2023-0007-0158 [https://
perma.cc/43JX-AAMG]; U.S. Dep’t of Just., Ex Parte
Communication Record on Proposed Rule on
Nondiscrimination on the Basis of Disability;
Accessibility of Web Information and Services of
State and Local Government Entities and Public
Accommodations (Nov. 17, 2023), https://
www.regulations.gov/document/DOJ-CRT-20230007-0355 [https://perma.cc/W45S-XDQH].
47 See, e.g., John B. Horrigan & Lee Rainie, Pew
Research Ctr., Connecting with Government or
Government Data (Apr. 21, 2015), https://
www.pewresearch.org/internet/2015/04/21/
connecting-with-government-or-government-data/
[https://perma.cc/BFA6-QRQU]; Samantha Becker
et al., Opportunity for All: How the American Public
Benefits from internet Access at U.S. Libraries, at
7–8, 120–27 (2010), https://www.imls.gov/sites/
default/files/publications/documents/
opportunityforall_0.pdf [https://perma.cc/3FDG553G].
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otherwise time-consuming tasks
relatively easy and expanding their
availability beyond regular business
hours. Access to these services via the
web can be particularly important for
those who live in rural communities
and might otherwise need to travel long
distances to reach government
buildings.48
Many public entities use online
resources to promote access to public
benefits. People can use websites of
public entities to file for unemployment
or other benefits and find and apply for
job openings. Applications for many
Federal benefits, such as unemployment
benefits and food stamps, are also
available through State websites.
Through the websites of State and local
government entities, business owners
can register their businesses, apply for
occupational and professional licenses,
bid on contracts to provide products
and services to public entities, and
obtain information about laws and
regulations with which they must
comply. The websites of many State and
local government entities also allow
members of the public to research and
verify business licenses online and
report unsavory business practices.
People also rely on public entities’
websites to engage in civic
participation. People can frequently
watch local public hearings, find
schedules for community meetings, or
take part in live chats with government
officials on the websites of State and
local government entities. Many public
entities allow voters to begin the voter
registration process and obtain
candidate information on their websites.
Individuals interested in running for
local public offices can often find
pertinent information concerning
candidate qualifications and filing
requirements on these websites as well.
The websites of public entities also
include information about a range of
issues of concern to the community and
about how people can get involved in
community efforts to improve the
administration of government services.
Public entities are also using websites
as an integral part of public education.49
48 See, e.g., NORC Walsh Ctr. for Rural Health
Analysis & Rural Health Info. Hub, Access to Care
for Rural People with Disabilities Toolkit (Dec.
2016), https://www.ruralhealthinfo.org/toolkits/
disabilities.pdf [https://perma.cc/YX4E-QWEE].
49 See, e.g., Consent Decree, United States v. The
Regents of the Univ. of Cal. (Nov. 20, 2022), https://
www.justice.gov/opa/press-release/file/1553291/
download [https://perma.cc/9AMQ-GPP3]; Natasha
Singer, Online Schools Are Here To Stay, Even
After the Pandemic, N.Y. Times, Apr. 11, 2021,
https://www.nytimes.com/2021/04/11/technology/
remote-learning-online-school.html [https://
perma.cc/ZYF6-79EE] (June 23, 2023); Institute of
Education Sciences, National Ctr. for Education
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Public schools at all levels, including
public colleges and universities, offer
programs, reading material, and
classroom instruction through websites.
Most public colleges and universities
rely heavily on websites and other
online technologies in the application
process for prospective students; for
housing eligibility and on-campus living
assignments; for course registration and
assignments; and for a wide variety of
administrative and logistical functions
in which students must participate.
Similarly, in many public elementary
and secondary school settings, teachers
and administrators communicate via the
web to parents and students about
grades, assignments, and administrative
matters.
As public comments on the NPRM
have reinforced, access to the web has
become increasingly important as a
result of the COVID–19 pandemic,
which shut down workplaces, schools,
and in-person services, and forced
millions of Americans to stay home for
extended periods.50 In response, the
American public increasingly turned to
the web for work, activities, and
learning.51 A study conducted in April
2021 found that 90 percent of adults
reported the web was essential or
important to them.52 Several
commenters on the NPRM specifically
highlighted challenges underscored by
the COVID–19 pandemic such as the
denial of access to safety information
Statistics, Distance Learning, National Center for
Education Statistics, https://nces.ed.gov/fastfacts/
display.asp?id=80 [https://perma.cc/XZT2-UKAD].
50 See Volker Stocker et al., Chapter 2: COVID–
19 and the Internet: Lessons Learned, in Beyond the
Pandemic? Exploring the Impact of COVID–19 on
Telecommunications and the Internet 17, 21–29
(2023), https://www.emerald.com/insight/content/
doi/10.1108/978-1-80262-049-820231002/full/pdf
[https://perma.cc/82P5-GVRV]; Colleen McClain et
al., Pew Research Ctr., The Internet and the
Pandemic 3 (Sep. 1, 2021), https://
www.pewresearch.org/internet/2021/09/01/theinternet-and-the-pandemic/ [https://perma.cc/
4WVA-FQ9P].
51 See Jina Suh et al., Disparate Impacts on
Online Information Access During the COVID–19
Pandemic, 13 Nature Comms. 1, 2–6 (Nov. 19,
2022), https://www.nature.com/articles/s41467-02234592-z#Sec6 [https://perma.cc/CP2X-3ES6]; Sara
Fischer & Margaret Harding McGill, Broadband
Usage Will Keep Growing Post-Pandemic, Axios
(May 4, 2021), https://www.axios.com/2021/05/04/
broadband-usage-post-pandemic-increase. A Perma
archive link was unavailable for this citation; Kerry
Dobransky & Eszter Hargittai, Piercing the
Pandemic Social Bubble: Disability and Social
Media Use About COVID–19, American Behavioral
Scientist (Mar. 29, 2021), https://doi.org/10.1177/
00027642211003146. A Perma archive link was
unavailable for this citation.
52 Colleen McClain et al., Pew Research Ctr., The
Internet and the Pandemic, at 3 (Sept. 1, 2021),
https://www.pewresearch.org/internet/2021/09/01/
the-internet-and-the-pandemic/ [https://perma.cc/
4WVA-FQ9P].
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and pandemic-related services,
including vaccination appointments.
While important for everyone during
the pandemic, access to web-based
services took on heightened importance
for people with disabilities, many of
whom face a greater risk of COVID–19
exposure, serious illness, and death.53 A
report by the National Council on
Disability indicated that COVID–19 has
had a disproportionately negative
impact on the ability of people with
disabilities to access healthcare,
education, and employment, among
other areas, making remote access to
these opportunities via the web even
more important.54 The Department
believes that although many public
health measures addressing the COVID–
19 pandemic are no longer in place,
there have been durable changes to State
and local government entities’
operations and public preferences that
necessitate greater access to online
services, programs, and activities.
As discussed at greater length below,
many public entities’ web content is not
fully accessible, which often means that
individuals with disabilities are denied
equal access to important services,
programs, or activities.
2. Use of Mobile Applications by Title
II Entities
This rule also covers mobile apps
because public entities often use mobile
apps to offer their services, programs, or
activities to the public. Mobile apps are
software applications that are
downloaded and designed to run on
mobile devices, such as smartphones
and tablets.55 Many public entities use
53 According to the CDC, some people with
disabilities ‘‘might be more likely to get infected or
have severe illness because of underlying medical
conditions, congregate living settings, or systemic
health and social inequities. All people with serious
underlying chronic medical conditions like chronic
lung disease, a serious heart condition, or a
weakened immune system seem to be more likely
to get severely ill from COVID–19.’’ See Ctrs. for
Disease Control and Prevention, People with
Disabilities, https://www.cdc.gov/ncbddd/
humandevelopment/covid-19/people-withdisabilities.html?CDC_AA_refVal=https
%3A%2F%2Fwww.cdc.gov%2Fcoronavirus
%2F2019-ncov%2Fneed-extra-precautions
%2Fpeople-with-disabilities.html [https://perma.cc/
WZ7U-2EQE].
54 See Nat’l Council on Disability, 2021 Progress
Report: The Impact of COVID–19 on People with
Disabilities, (Oct. 29, 2021), https://www.ncd.gov/
report/an-extra/ [https://perma.cc/2AUU-6R73].
55 Mobile apps are distinct from a website that
can be accessed by a mobile device because, in part,
mobile apps are not directly accessible on the web;
they are often downloaded on a mobile device.
Mona Bushnell, What Is the Difference Between an
App and a Mobile website?, Bus. News Daily,
https://www.businessnewsdaily.com/6783-mobilewebsite-vs-mobile-app.html [https://perma.cc/
9LKC-GUEM] (Aug. 3, 2022). A mobile website, by
contrast, is a website that is designed so that it can
be accessed by a mobile device similarly to how it
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mobile apps to provide services and
reach the public in various ways,
including the purposes for which public
entities use websites, in addition to
others. For example, as with websites,
residents can often use mobile apps
provided or made available by public
entities to submit service requests, such
as requests to clean graffiti or repair a
street-light outage, and track the status
of these requests. Public entities’ apps
often take advantage of common
features of mobile devices, such as
camera and Global Positioning System
(‘‘GPS’’) functions,56 so individuals can
provide public entities with a precise
description and location of issues.
These may include issues such as
potholes,57 physical barriers created by
illegal dumping or parking, or curb
ramps that need to be fixed to ensure
accessibility for some people with
disabilities. Some public transit
authorities have transit apps that use a
mobile device’s GPS function to provide
bus riders with the location of nearby
bus stops and real-time arrival and
departure times.58 In addition, public
entities are also using mobile apps to
assist with emergency planning for
natural disasters like wildfires; provide
information about local schools; and
promote tourism, civic culture, and
community initiatives.59 During the
COVID–19 pandemic, when many State
and local government entities’ offices
were closed, public entities used mobile
apps to inform people about benefits
and resources, to provide updates about
the pandemic, and as a means to show
proof of vaccination status, among other
things.60
can be accessed on a desktop computer. Id. Both
mobile apps and mobile websites are covered by
this rule.
56 See IBM Ctr. for the Bus. of Gov’t, Using Mobile
Apps in Government, at 11 (2015), https://
www.businessofgovernment.org/sites/default/files/
Using%20Mobile%20Apps
%20in%20Government.pdf [https://perma.cc/248X8A6C].
57 Id. at 32.
58 See id. at 28, 30–31.
59 See id. at 7–8.
60 See Rob Pegoraro, COVID–19 Tracking Apps,
Supported by Apple and Google, Begin Showing Up
in App Stores, USA Today, Aug. 25, 2020, https://
www.usatoday.com/story/tech/columnist/2020/08/
25/google-and-apple-supported-coronavirustracking-apps-land-states/3435214001/ [https://
perma.cc/YH8C-K2F9] (Aug. 26, 2020) (describing
how various states’ apps allow contact tracing
through anonymized data and can provide
information about testing and other COVID–19
safety practices); Chandra Steele, Does My State
Have a COVID–19 Vaccine App, PCMag, https://
www.pcmag.com/how-to/does-my-state-have-acovid-19-vaccine-app [https://perma.cc/H338MCWC] (Feb. 27, 2023).
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3. Barriers to Web and Mobile App
Accessibility
Millions of individuals in the United
States have disabilities that can affect
their use of the web and mobile apps.61
Many of these individuals use assistive
technology to enable them to navigate
websites or mobile apps or access
information contained on those sites or
apps. For example, individuals who are
unable to use their hands may use
speech recognition software to navigate
a website or a mobile app, while
individuals who are blind may rely on
a screen reader to convert the visual
information on a website or mobile app
into speech. Many websites and mobile
apps are coded or presented such that
some individuals with disabilities do
not have access to all the information or
features provided on or available on the
website or mobile app.62 For instance,
individuals who are deaf may be unable
to access information in web videos and
other multimedia presentations that do
not have captions. Individuals with low
vision may be unable to read websites
or mobile apps that do not allow text to
be resized or do not provide enough
contrast. Individuals with limited
manual dexterity or vision disabilities
who use assistive technology that
enables them to interact with websites
may be unable to access sites that do not
support keyboard alternatives for mouse
commands. These same individuals,
along with individuals with cognitive
and vision disabilities, often encounter
difficulty using portions of websites and
mobile apps that require timed
responses from users but do not give
users the opportunity to indicate that
they need more time to respond.
Individuals who are blind or have low
vision often confront significant barriers
to accessing websites and mobile apps.
For example, a study from the
University of Washington analyzed
approximately 10,000 mobile apps and
found that many are highly inaccessible
to individuals with disabilities.63 The
study found that 23 percent of the
mobile apps reviewed did not provide
content descriptions of images for most
of their image-based buttons.64 As a
61 See Section 2.2, ‘‘Number of Individuals with
Disabilities,’’ in the accompanying FRIA for more
information on the estimated prevalence of
individuals with certain disabilities.
62 See W3C, Diverse Abilities and Barriers,
https://www.w3.org/WAI/people-use-web/abilitiesbarriers/ [https://perma.cc/DXJ3-BTFW] (May 15,
2017).
63 See Large-Scale Analysis Finds Many Mobile
Apps Are Inaccessible, Univ. of Washington
CREATE (Mar. 1, 2021), https://create.uw.edu/
initiatives/large-scale-analysis-finds-many-mobileapps-are-inaccessible/ [https://perma.cc/442KSBCG].
64 Id.
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result, the functionality of those buttons
is not accessible for people who use
screen readers.65 Additionally, other
mobile apps may be inaccessible if they
do not allow text resizing, which can
provide larger text for people with
vision disabilities.66
Furthermore, many websites and
mobile apps provide information
visually, without features that allow
screen readers or other assistive
technology to retrieve the information
so it can be presented in an accessible
manner. A common barrier to
accessibility is an image or photograph
without corresponding text (‘‘alternative
text’’ or ‘‘alt text’’) describing the image.
Generally, a screen reader or similar
assistive technology cannot ‘‘read’’ an
image, leaving individuals who are
blind with no way of independently
knowing what information the image
conveys (e.g., a simple icon or a detailed
graph). Similarly, if websites lack
headings that facilitate navigation using
assistive technology, they may be
difficult or impossible for someone
using assistive technology to navigate.67
Additionally, websites or mobile apps
may fail to present tables in a way that
allows the information in the table to be
interpreted by someone who is using
assistive technology.68 Web-based
forms, which are an essential part of
accessing government services, are often
inaccessible to individuals with
disabilities who use assistive
technology. For example, field elements
on forms, which are the empty boxes on
forms that receive input for specific
pieces of information, such as a last
name or telephone number, may lack
clear labels that can be read by assistive
technology. Inaccessible form fields
make it difficult for people using
assistive technology to fill out online
forms, pay fees and fines, or otherwise
participate in government services,
programs, or activities using a website.
Some governmental entities use
inaccessible third-party websites and
mobile apps to accept online payments,
while others request public input
through their own inaccessible websites
and mobile apps. As commenters have
emphasized, these barriers greatly
impede the ability of individuals with
65 Id.
66 See Lucia Cerchie, Text Resizing in iOS and
Android, The A11y Project (Jan. 28, 2021), https://
www.a11yproject.com/posts/text-resizing-in-iosand-android/ [https://perma.cc/C29M-N2J6].
67 See, e.g., W3C, WCAG 2.1 Understanding Docs:
Understanding SC 1.3.1: Info and Relationships
(Level A), https://www.w3.org/WAI/WCAG21/
Understanding/info-and-relationships [https://
perma.cc/9XRQ-HWWW] (June 20, 2023).
68 See, e.g., W3C, Tables Tutorial, https://
www.w3.org/WAI/tutorials/tables/ [https://
perma.cc/FMG2-33C4] (Feb. 16, 2023).
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disabilities to access the services,
programs, or activities offered by public
entities via the web and mobile apps.
In many instances, removing certain
web content and mobile app
accessibility barriers is neither difficult
nor especially costly. For example, the
addition of invisible attributes known as
alt text or alt tags to an image helps
orient an individual using a screen
reader and allows them to gain access to
the information on the website.69 Alt
text can be added to the coding of a
website without any specialized
equipment.70 Similarly, adding
headings, which facilitate page
navigation for those using screen
readers, can often be done easily as
well.71
Public comments on the NPRM
described the lack of independence, and
the resulting lack of privacy, that can
stem from accessibility barriers. These
commenters noted that without full and
equal access to digital spaces,
individuals with disabilities must
constantly rely on support from others
to perform tasks they could complete
themselves if the online infrastructure
enabled accessibility. Commenters
noted that when using public entities’
inaccessible web content or mobile apps
for interactions that involve confidential
information, individuals with
disabilities must forfeit privacy and
independence to seek assistance.
Commenters pointed out that constantly
needing assistance from others not only
impacts self-confidence and perceptions
of self-worth, but also imposes a costly
and burdensome ‘‘time tax’’ because it
means that individuals with disabilities
must spend more time and effort to gain
access than individuals without
disabilities.
Commenters also pointed out that
accessible digital spaces benefit
everyone. Just as the existence of curb
cuts benefits people in many different
scenarios—such as those using
wheelchairs, pushing strollers, and
using a trolley to deliver goods—
accessible web content and mobile apps
are generally more user friendly. For
example, captioning is often used by
individuals viewing videos in quiet
public spaces and sufficient color
contrast makes it generally easier to read
text.
69 W3C, Images Tutorial, https://www.w3.org/
WAI/tutorials/images/ [https://perma.cc/G6TLW7ZC] (Feb. 08, 2022).
70 Id.
71 W3C, Technique G130: Providing Descriptive
Headings, https://www.w3.org/WAI/WCAG21/
Techniques/general/G130.html [https://perma.cc/
XWM5-LL6S] (June 20, 2023).
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4. Inadequacy of Voluntary Compliance
With Technical Standards
The web has changed significantly,
and its use has become far more
prevalent, since Congress enacted the
ADA in 1990 and since the Department
subsequently promulgated its first ADA
regulations. Neither the ADA nor the
Department’s regulations specifically
addressed public entities’ use of web
content and mobile apps to provide
their services, programs, or activities.
Congress contemplated, however, that
the Department would apply title II, part
A of the statute in a manner that would
adjust over time with changing
circumstances and Congress delegated
authority to the Attorney General to
promulgate regulations to carry out the
ADA’s mandate under title II, part A.72
Consistent with this approach, the
Department stated in the preamble to
the original 1991 ADA regulations that
the regulations should be interpreted to
keep pace with developing
technologies.73
Since 1996, the Department has
consistently taken the position that the
ADA applies to the web content of State
and local government entities. This
interpretation comes from title II’s
application to ‘‘all services, programs,
and activities provided or made
available by public entities.’’ 74 The
Department has affirmed the application
of the statute to websites in multiple
technical assistance documents over the
past two decades.75 Further, the
Department has repeatedly enforced this
obligation and worked with State and
local government entities to make their
websites accessible, such as through
Project Civic Access, an initiative to
promote local governments’ compliance
with the ADA by eliminating physical
and communication barriers impeding
full participation by people with
disabilities in community life.76 As
72 See H.R. Rep. No. 101–485, pt. 2, at 108 (1990);
42 U.S.C. 12134(a).
73 Nondiscrimination on the Basis of Disability by
Public Accommodations and in Commercial
Facilities, 56 FR 35544, 35566 (July 26, 1991); see
28 CFR part 36, appendix B.
74 See 28 CFR 35.102.
75 U.S. Dep’t of Just., Accessibility of State and
Local Government websites to People with
Disabilities, ADA.gov (June 2003), https://
www.ada.gov/websites2.htm [https://perma.cc/
Z7JT-USAN]; U.S. Dep’t of Just., ADA Best Practices
Tool Kit for State and Local Governments: Chapter
5: website Accessibility Under Title II of the ADA,
ADA.gov (May 7, 2007), https://www.ada.gov/
pcatoolkit/chap5toolkit.htm [https://perma.cc/
VM3M-AHDJ]; U.S. Dep’t of Just., Guidance on Web
Accessibility and the ADA, ADA.gov (Mar. 18,
2022), https://www.ada.gov/resources/webguidance/ [https://perma.cc/874V-JK5Z ]; see also
supra Section III.B of this preamble.
76 U.S. Dep’t of Just., Project Civic Access,
ADA.gov, https://www.ada.gov/civicac.htm [https://
perma.cc/B6WV-4HLQ].
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State and local government entities have
increasingly turned to mobile apps to
offer services, programs, or activities,
the Department has enforced those
entities’ title II obligations in that
context as well.77 A variety of voluntary
standards and structures have been
developed for the web through
nonprofit organizations using
multinational collaborative efforts. For
example, domain names are issued and
administered through the Internet
Corporation for Assigned Names and
Numbers, the Internet Society publishes
computer security policies and
procedures for websites, and the World
Wide Web Consortium (‘‘W3C’’)
develops a variety of technical
standards and guidelines ranging from
issues related to mobile devices and
privacy to internationalization of
technology. In the area of accessibility,
the Web Accessibility Initiative (‘‘WAI’’)
of W3C created the WCAG.
Many organizations, however, have
indicated that voluntary compliance
with these accessibility guidelines has
not resulted in equal access for
individuals with disabilities;
accordingly, they have urged the
Department to take regulatory action to
ensure web content and mobile app
accessibility.78 The National Council on
Disability, an independent Federal
agency that advises the President,
Congress, and other agencies about
programs, policies, practices, and
procedures affecting people with
disabilities, has similarly emphasized
the need for regulatory action on this
issue.79 The Department has also heard
77 See, e.g., Settlement Agreement Between the
United States of America and Service Oklahoma
(Jan. 22, 2024), https://www.justice.gov/d9/2024-01/
service_oklahoma_fully_executed_
agreement.01.22.24.pdf [https://perma.cc/MB2ABKHY]; Settlement Agreement Between the United
States of America and the Champaign-Urbana Mass
Transit District (Dec. 14, 2021), https://
www.justice.gov/d9/case-documents/attachments/
2021/12/14/champaign-urbana_sa.pdf [https://
perma.cc/Y3CX-EHCC].
78 See, e.g., Letter for U.S. Dep’t of Just. from
American Council of the Blind et al. (Feb. 28, 2022),
https://acb.org/accessibility-standards-joint-letter-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
Technology & Telecommunications and Rights Task
Force, re: Adopting Regulatory and Subregulatory
Initiatives To Advance Accessibility and Usability
of websites, Online Systems, Mobile Applications,
and Other Forms of Information and
Communication Technology Under Titles II and III
of the ADA (Mar. 23, 2022), https://www.c-c-d.org/
fichiers/CCD-Web-Accessibility-Letter-to-DOJ03232022.pdf [https://perma.cc/Q7YB-UNKV].
79 See Nat’l Council on Disability, The Need for
Federal Legislation and Regulation Prohibiting
Telecommunications and Information Services
Discrimination (Dec. 19, 2006), https://
www.ncd.gov/assets/uploads/reports/2006/ncdneed-for-regulation-prohibiting-it-discrimination-
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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.80 Public
commenters responding to the NPRM
have also emphasized the need for
regulatory action on this issue to ensure
that public entities’ services, programs,
and activities offered via the web and
mobile apps are accessible, and have
expressed that this rule is long overdue.
In light of the long regulatory history
and the ADA’s current general
requirement to make all services,
programs, and activities accessible, the
Department expects that public entities
have made strides to make their web
content and mobile apps accessible
since the 2010 ANPRM was published.
Such strides have been supported by the
availability of voluntary web content
and mobile app accessibility standards,
as well as by the Department’s clearly
stated position—supported by judicial
decisions 81—that all services, programs,
and activities of public entities,
including those available on websites,
must be accessible. Still, as discussed
above, individuals with disabilities
continue to struggle to obtain access to
2006.pdf [https://perma.cc/7HW5-NF7P]
(discussing how competitive market forces have not
proven sufficient to provide individuals with
disabilities access to telecommunications and
information services); see also, e.g., Nat’l Council
on Disability, National Disability Policy: A Progress
Report: Executive Summary (Oct. 7, 2016), https://
files.eric.ed.gov/fulltext/ED571832.pdf [https://
perma.cc/ZH3P-8LCZ] (urging the Department to
adopt a web accessibility regulation).
80 See, e.g., Letter for U.S. Dep’t of Just. from Nat’l
Ass’n of Realtors (Dec. 13, 2017), https://
www.narfocus.com/billdatabase/clientfiles/172/3/
3058.pdf [https://perma.cc/Z93F-K88P].
81 See, e.g., Meyer v. Walthall, 528 F. Supp. 3d
928, 959 (S.D. Ind. 2021) (‘‘[T]he Court finds that
Defendants’ websites constitute services or
activities within the purview of Title II and section
504, requiring Defendants to provide effective
access to qualified individuals with a disability.’’);
Price v. City of Ocala, Fla., 375 F. Supp. 3d 1264,
1271 (M.D. Fla. 2019) (‘‘Title II undoubtedly applies
to websites.’’); Payan v. Los Angeles Cmty. Coll.
Dist., No. 2:17–CV–01697–SVW–SK, 2019 WL
9047062, at *12 (C.D. Cal. Apr. 23, 2019) (‘‘[T]he
ability to sign up for classes on the website and to
view important enrollment information is itself a
‘service’ warranting protection under Title II and
Section 504.’’); Eason v. New York State Bd. of
Elections, No. 16–CV–4292 (KBF), 2017 WL
6514837, at *1 (S.D.N.Y. Dec. 20, 2017) (stating, in
a case involving a State’s website, that ‘‘Section 504
of the Rehabilitation Act and Title II of the
Americans with Disabilities Act . . . long ago
provided that the disabled are entitled to
meaningful access to a public entity’s programs and
services. Just as buildings have architecture that can
prevent meaningful access, so too can software.’’);
Hindel v. Husted, No. 2:15–CV–3061, 2017 WL
432839, at *5 (S.D. Ohio Feb. 1, 2017) (‘‘The Court
finds that Plaintiffs have sufficiently established
that Secretary Husted’s website violates Title II of
the ADA because it is not formatted in a way that
is accessible to all individuals, especially blind
individuals like the Individual Plaintiffs whose
screen access software cannot be used on the
website.’’).
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the web content and mobile apps of
public entities. Many public comments
on the NPRM shared anecdotes of
instances where individuals were
unable to access government services,
programs, or activities offered via the
web and mobile apps, or had to
overcome significant barriers to be able
to do so, in spite of public entities’
existing obligations under title II.
The Department has brought
enforcement actions to address web
content and mobile app access, resulting
in a significant number of settlement
agreements with State and local
government entities.82 Other Federal
agencies have also taken enforcement
action against public entities regarding
the lack of website access for
individuals with disabilities. In
December 2017, for example, the U.S.
Department of Education entered into a
resolution agreement with the Alaska
Department of Education and Early
Development after it found that the
public entity had violated Federal
statutes, including title II of the ADA, by
denying individuals with disabilities an
equal opportunity to participate in the
public entity’s services, programs, or
activities due to website
inaccessibility.83 As another example,
the U.S. Department of Housing and
Urban Development took action against
the City of Los Angeles, and its
subrecipient housing providers, to
82 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. 21, 2022), https://www.justice.gov/opa/pressrelease/file/1553291/download [https://perma.cc/
9AMQ-GPP3]; Consent Decree, Dudley v. Miami
Univ. (Oct. 13, 2016), https://www.ada.gov/miami_
university_cd.html [https://perma.cc/T3FX-G7RZ];
Settlement Agreement Between the United States of
America and the City and County of Denver,
Colorado Under the Americans with Disabilities Act
(Jan. 8, 2018), https://www.ada.gov/denver_pca/
denver_sa.html [https://perma.cc/U7VE-MBSG];
Settlement Agreement Between the United States of
America and Nueces County, Texas Under the
Americans with Disabilities Act (Jan. 30, 2015),
https://www.ada.gov/nueces_co_tx_pca/nueces_co_
tx_sa.html [https://perma.cc/TX66-WQY7];
Settlement Agreement Between the United States of
America, Louisiana Tech University, and the Board
of Supervisors for the University of Louisiana
System Under the Americans with Disabilities Act
(July 22, 2013), https://www.ada.gov/louisianatech.htm [https://perma.cc/78ES-4FQR].
83 U.S. Dep’t of Educ., In re Alaska Dep’t of Educ.
& Early Dev., OCR Reference No. 10161093 (Dec. 11,
2017) (resolution agreement), https://www2.ed.gov/
about/offices/list/ocr/docs/investigations/more/
10161093-b.pdf [https://perma.cc/DUS4-HVZJ],
superseded by U.S. Dep’t of Educ., In re Alaska
Dep’t of Educ. & Early Dev., OCR Reference
No.10161093 (Mar. 28, 2018) (revised resol.
agreement), https://www2.ed.gov/about/offices/list/
ocr/docs/investigations/more/10161093-b1.pdf
[https://perma.cc/BVL6-Y59M] (U.S. Dep’t of Educ.
Mar. 28, 2018) (revised resol. agreement).
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ensure that it maintained an accessible
website concerning housing
opportunities.84
The Department believes, and public
comments on the NPRM have
reinforced, that adopting technical
standards for web content and mobile
app accessibility provides clarity to
public entities regarding how to make
accessible the services, programs, and
activities that they offer via the web and
mobile apps. Commenters have
specifically indicated that
unambiguous, consistent, and
comprehensive standards will help
resolve existing confusion around the
technical requirements for accessibility
on public entities’ web content and
mobile apps. Adopting specific
technical standards for web content and
mobile app accessibility also helps to
provide individuals with disabilities
with consistent and predictable access
to the web content and mobile apps of
public entities.
IV. Regulatory Process Matters
The Department has examined the
likely economic and other effects of this
final rule addressing the accessibility of
web content and mobile apps, as
required under applicable Executive
Orders,85 Federal administrative
statutes (e.g., the Regulatory Flexibility
Act,86 Paperwork Reduction Act,87 and
Unfunded Mandates Reform Act 88), and
other regulatory guidance.89
As discussed previously, the purpose
of this rule is to revise the regulation
implementing title II of the ADA in
order to ensure that the services,
programs, and activities offered by State
and local government entities to the
public via web content and mobile apps
are accessible to individuals with
disabilities. The Department is adopting
specific technical standards related to
the accessibility of the web content and
mobile apps of State and local
government entities and is specifying
84 See Voluntary Compliance Agreement Between
the U.S. Dep’t of Housing & Urban Dev. and the City
of Los Angeles, Cal. (Aug. 2, 2019), https://
www.hud.gov/sites/dfiles/Main/documents/HUDCity-of-Los-Angeles-VCA.pdf [https://perma.cc/
X5RN-AJ5K].
85 See E.O. 14094, 88 FR 21879 (Apr. 6, 2023);
E.O. 13563, 76 FR 3821 (Jan. 18, 2011); E.O. 13272,
67 FR 53461 (Aug. 13, 2002); E.O. 13132, 64 FR
43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735
(Sept. 30, 1993).
86 Regulatory Flexibility Act of 1980 (‘‘RFA’’), as
amended by the Small Bus. Regulatory Enforcement
Fairness Act of 1996, 5 U.S.C. 601 et seq.
87 Paperwork Reduction Act (‘‘PRA’’), 44 U.S.C.
3501 et seq.
88 Unfunded Mandates Reform Act of 1995, 2
U.S.C. 1501 et seq.
89 See Office of Mgmt. and Budget, Circular A–4
(Sept. 17, 2003) (superseded by Office of Mgmt. and
Budget, Circular A–4 (of Nov. 9, 2023)).
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dates by which such web content and
mobile apps must meet those standards.
This rule is necessary to help public
entities understand how to ensure that
individuals with disabilities will have
equal access to the services, programs,
and activities that public entities
provide or make available through their
web content and mobile apps.
The Department has carefully crafted
this final rule to better ensure the
protections of title II of the ADA, while
at the same time doing so in an
economically efficient manner. After
reviewing the Department’s assessment
of the likely costs of this regulation, the
Office of Management and Budget
(‘‘OMB’’) has determined that it is a
significant regulatory action within the
meaning of Executive Order 12866, as
amended. As such, the Department has
undertaken a FRIA pursuant to
Executive Order 12866. The Department
has also undertaken a FRFA as specified
in section 604(a) of the Regulatory
Flexibility Act. The results of both of
these analyses are summarized below.
Lastly, the Department does not believe
that this regulation will have any
significant impact relevant to the
Paperwork Reduction Act, the
Unfunded Mandates Reform Act, or the
federalism principles outlined in
Executive Order 13132.
A. Final Regulatory Impact Analysis
Summary
The Department has prepared a FRIA
for this rulemaking. This rulemaking
also contains a FRFA. The Department
contracted with Eastern Research Group
Inc. (‘‘ERG’’) to prepare this economic
assessment. This summary provides an
overview of the Department’s economic
analysis and key findings in the FRIA.
The full FRIA will be made available at
https://www.justice.gov/crt/disabilityrights-section.
Requiring State and local government
entity web content and mobile apps to
conform to WCAG 2.1 Level AA will
result in costs for State and local
government entities to remediate and
maintain their web content and mobile
apps to meet this standard. The
Department estimates that 109,893 State
and local government entity websites
and 8,805 State and local government
mobile apps will be affected by the rule.
These websites and mobile apps provide
services on behalf of and are managed
by 91,489 State and local government
entities that will incur these costs.
These costs include one-time costs for
familiarization with the requirements of
the rule; testing, remediation, and
operating and maintenance (‘‘O&M’’)
costs for websites; testing, remediation,
and O&M costs for mobile apps; and
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school course remediation costs. The
remediation costs include both time and
software components.
Initial familiarization, testing, and
remediation costs of the rule are
expected to occur over the first two or
three years until compliance is required
and are presented in Table 3 (two years
for large governments and three years
for small governments). Annualized
recurring costs after implementation are
shown in Table 4. These initial and
recurring costs are then combined to
show total costs over the 10-year time
horizon (Table 5 and Table 6) and
annualized costs over the 10-year time
horizon (Table 7 and Table 8).
Annualized costs over this 10-year
period are estimated at $3.3 billion
assuming a 3 percent discount rate and
$3.5 billion assuming a 7 percent
discount rate. This includes $16.9
billion in implementation costs accruing
during the first three years (the
implementation period), undiscounted,
and $2.0 billion in annual O&M costs
during the next seven years. All values
are presented in 2022 dollars as 2023
data were not yet available.
Benefits will generally accrue to all
individuals who access State and local
government entity websites and mobile
apps, and additional benefits will
accrue to individuals with certain types
of disabilities. The WCAG 2.1 Level AA
standards for web content and mobile
app accessibility primarily benefit
individuals with vision, hearing,
cognitive, and manual dexterity
disabilities because accessibility
standards are intended to address
barriers that often impede access for
people with these disability types.
Using the U.S. Census Bureau’s Survey
of Income and Program Participation
(‘‘SIPP’’) 2022 data, the Department
estimates that 5.5 percent of adults in
the United States have a vision
disability, 7.6 percent have a hearing
disability, 11.3 percent have a cognitive
disability, and 5.8 percent have a
manual dexterity disability.90 Due to the
incidence of multiple disabilities, the
total share of people with one or more
of these disabilities is 21.3 percent.
The Department monetized benefits
for both people with these disabilities
and people without disabilities.91 There
are many additional benefits that have
not been monetized due to lack of data
availability. Benefits that cannot be
monetized are discussed qualitatively.
These non-quantified benefits are
central to this rule’s potential impact as
they include concepts inherent to any
civil rights law—such as equality and
dignity. Other impacts to individuals
include increased independence,
increased flexibility, increased privacy,
reduced frustration, decreased reliance
on companions, and increased program
participation. This rule will also benefit
State and local government entities
through increased certainty about what
constitutes an accessible website, a
potential reduction in litigation, and a
larger labor market pool (due to
increased educational attainment and
access to job training).
Annual and annualized monetized
benefits of this rule are presented in
Table 9, Table 10, and Table 11. Annual
benefits, beginning once the rule is fully
implemented, total $5.3 billion. Because
individuals generally prefer benefits
received sooner, future benefits need to
be discounted to reflect the lower value
due to the wait to receive them. OMB
guidance states that annualized benefits
and costs should be presented using real
discount rates of 3 percent and 7
percent.92 Benefits annualized over a
10-year period that includes both three
years of implementation and seven
years post-implementation total $5.2
billion per year, assuming a 3 percent
discount rate, and $5.0 billion per year,
assuming a 7 percent discount rate.
Comparing annualized costs and
benefits, monetized benefits to society
outweigh the costs. Net annualized
benefits over the first 10 years post
publication of this rule total $1.9 billion
per year using a 3 percent discount rate
and $1.5 billion per year using a 7
percent discount rate (Table 12).
Additionally, beyond this 10-year
period, benefits are likely to continue to
accrue at a greater rate than costs
because many of the costs are upfront
costs and the benefits tend to have a
delay before beginning to accrue.
To consider the relative magnitude of
the estimated costs of this regulation,
the Department compares the costs to
revenues for public entities. Because
90 See U.S. Census Bureau, 2022 SIPP Data,
https://www.census.gov/programs-surveys/sipp/
data/datasets/2022-data/2022.html [https://
perma.cc/7HW3-7GHR] (last visited Mar. 13, 2024).
Analysis of this dataset is discussed further in the
Department’s accompanying FRIA, at section 2.2,
Number of Individuals with Disabilities.
91 Throughout the Department’s FRIA, the
Department uses the phrases ‘‘individuals without
a relevant disability’’ or ‘‘individuals without
disabilities’’ to refer to individuals without vision,
hearing, cognitive, or manual dexterity disabilities.
These individuals may have other types of
disabilities, or they may be individuals without any
disabilities at all.
92 Office of Mgmt. and Budget, Circular A–4 (Sep
17, 2003), https://www.whitehouse.gov/wp-content/
uploads/legacy_drupal_files/omb/circulars/A4/a4.pdf [https://perma.cc/VSR2-UFT8]. Office of
Mgmt. and Budget, Circular A–4 (Sep 17, 2003),
https://www.whitehouse.gov/wp-content/uploads/
legacy_drupal_files/omb/circulars/A4/a-4.pdf
[https://perma.cc/VSR2-UFT8https://perma.cc/
VSR2-UFT8].
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Federal Register / Vol. 89, No. 80 / Wednesday, April 24, 2024 / Rules and Regulations
calculating this ratio for every public
entity would be impractical, the
Department used the estimated average
annualized cost compared to the average
annual revenue by each government
entity type. The costs for each
government entity type and size are
generally estimated to be below 1
percent of revenues (the one exception
is small independent community
colleges, for which the cost-to-revenue
ratio is 1.05 percent and 1.10 percent
using a 3 percent discount rate and a 7
percent discount rate, respectively),93 so
the Department does not believe the rule
will be unduly burdensome or costly for
public entities.94
The Department received some
comments on the proposed rule’s
estimated costs and benefits. These
comments are discussed throughout the
FRIA. One methodological change was
made from the analysis performed for
the NPRM on the timing of compliance
for making password-protected course
content accessible by public educational
entities, which is discussed further in
the FRIA. However, the numbers in the
FRIA also differ from the proposed rule
because data have been updated to
reflect the most recently available data
and because monetary values are now
reported in 2022 dollars (whereas the
analysis performed for the NPRM
presented values in 2021 dollars).
TABLE 3—INITIAL FAMILIARIZATION, TESTING, AND REMEDIATION COSTS
[Millions]
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
253.0
14.7
$1.00
819.9
56.8
$6.42
2,606.6
100.0
$5.35
1,480.7
1.4
$12.7
408.5
0.0
$4.03
2,014.0
406.3
$0.00
7.1
1.3
$0.62
1,417.4
68.9
$30.1
9,007.3
649.2
N/A
N/A
N/A
N/A
N/A
N/A
N/A
5,508.5
5,508.5
N/A
50.8
19.8
42.8
N/A
1,134.1
N/A
N/A
1,247.5
7.2
39.4
147.2
85.5
19.6
113.8
0.0
93.6
506.4
Total ...............................
275.0
967.8
2,880.1
1,615.8
440.8
3,672.2
8.4
7,089.1
16,949.1
TABLE 4—AVERAGE ANNUAL COST AFTER IMPLEMENTATION
[Millions]
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 ...................................
$22.0
0.01
$71.9
0.04
$237.3
0.03
$136.9
0.00
$43.8
0.00
$181.7
0.23
$0.6
0.00
$123.4
0.05
$817.8
0.35
N/A
N/A
N/A
N/A
N/A
N/A
N/A
1,001.6
1,001.6
N/A
5.1
2.0
4.3
N/A
113.4
N/A
N/A
124.7
0.6
3.5
13.4
7.9
2.1
10.2
0.0
8.2
45.9
Total ...............................
22.6
80.6
252.7
149.1
45.9
305.6
0.6
1,133.2
1,990.3
TABLE 5—PRESENT VALUE OF 10-YEAR TOTAL COST, 3 PERCENT DISCOUNT RATE
[Millions]
khammond on DSKJM1Z7X2PROD with RULES2
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
366.5
14.1
$0.97
1,190.3
54.2
$6.23
3,812.6
95.8
$5.20
2,174.4
1.3
$12.33
634.1
0.0
$3.91
2,939.6
385.4
$0.00
10.3
1.2
$0.60
2,053.9
66.2
$29.26
13,181.7
618.1
N/A
N/A
N/A
N/A
N/A
N/A
N/A
11,890.1
11,890.1
N/A
79.6
31.1
67.1
N/A
1,778.9
N/A
N/A
1,956.8
10.5
57.4
215.3
125.6
30.4
165.8
0.0
135.6
740.7
Total ...............................
391.1
1,382.4
4,161.0
2,373.7
676.8
5,273.6
11.5
14,146.5
28,416.7
93 However, the Department notes that revenue
for small independent community colleges was
estimated using the 2012 Census of Governments,
so revenue for small independent community
colleges would likely be underestimated if small
independent community colleges had a greater
share of total local government revenue in 2022
than in 2012. If this were true, the Department
expects that the cost-to-revenue ratio for small
independent community colleges would be lower.
94 As a point of reference, the United States Small
Business Administration advises agencies that a
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potential indicator that the impact of a regulation
may be ‘‘significant’’ is whether the costs exceed 1
percent of the gross revenues of the entities in a
particular sector, although the threshold may vary
based on the particular types of entities at issue. See
U.S. Small Bus. Admin., A Guide for Government
Agencies: How To Comply with the Regulatory
Flexibility Act, at 19 (Aug. 2017), https://
advocacy.sba.gov/wp-content/uploads/2019/07/
How-to-Comply-with-the-RFA-WEB.pdf [https://
perma.cc/PWL9-ZTW6]; see also U.S. Env’t Prot.
Agency, EPA’s Action Dev. Process: Final Guidance
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for EPA Rulewriters: Regulatory Flexibility Act, at
9, 24 (Nov. 2006), https://www.epa.gov/sites/
default/files/2015-06/documents/guidanceregflexact.pdf [https://perma.cc/9XFZ-3EVA]
(providing an illustrative example of a hypothetical
analysis under the RFA in which, for certain small
entities, economic impact of ‘‘[l]ess than 1% for all
affected small entities’’ may be ‘‘[p]resumed’’ to
have ‘‘no significant economic impact on a
substantial number of small entities’’).
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TABLE 6—PRESENT VALUE OF 10-YEAR TOTAL COST, 7 PERCENT DISCOUNT RATE
[Millions]
Cost
State
County
Municipal
Special
district
Township
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
323.3
13.3
$0.93
1,048.5
50.7
$6.00
3,327.8
90.5
$5.00
1,892.9
1.3
$11.87
548.3
0.0
$3.76
2,570.7
358.5
$0.00
9.1
1.2
$0.58
1,811.7
62.5
$28.16
11,532.2
577.9
N/A
N/A
N/A
N/A
N/A
N/A
N/A
10,188.1
10,188.1
N/A
69.7
27.2
58.7
N/A
1,557.3
N/A
N/A
1,713.0
9.3
50.5
187.9
109.3
26.3
145.3
0.0
119.6
648.2
Total ...............................
345.9
1,220.4
3,639.4
2,067.2
586.5
4,635.5
10.2
12,182.5
24,687.6
TABLE 7—10-YEAR AVERAGE ANNUALIZED COST, 3 PERCENT DISCOUNT RATE
[Millions]
Cost
State
County
Municipal
Special
district
Township
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
43.0
1.7
$0.11
139.5
6.3
$0.73
446.9
11.2
$0.61
254.9
0.2
$1.44
74.3
0.0
$0.46
344.6
45.2
$0.00
1.2
0.1
$0.07
240.8
7.8
$3.43
1,545.3
72.5
N/A
N/A
N/A
N/A
N/A
N/A
N/A
1,393.9
1,393.9
N/A
9.3
3.6
7.9
N/A
208.5
N/A
N/A
229.4
1.2
6.7
25.2
14.7
3.6
19.4
0.0
15.9
86.8
Total ...............................
45.8
162.1
487.8
278.3
79.3
618.2
1.4
1,658.4
3,331.3
TABLE 8—10-YEAR AVERAGE ANNUALIZED COST, 7 PERCENT DISCOUNT RATE
[Millions]
Cost
State
County
Municipal
Special
district
Township
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
46.0
1.9
$0.13
149.3
7.2
$0.85
473.8
12.9
$0.71
269.5
0.2
$1.69
78.1
0.0
$0.54
366.0
51.0
$0.00
1.3
0.2
$0.08
257.9
8.9
$4.01
1,641.9
82.3
N/A
N/A
N/A
N/A
N/A
N/A
N/A
1,450.6
1,450.6
N/A
9.9
3.9
8.4
N/A
221.7
N/A
N/A
243.9
1.3
7.2
26.8
15.6
3.7
20.7
0.0
17.0
92.3
Total ...............................
49.2
173.8
518.2
294.3
83.5
660.0
1.5
1,734.5
3,515.0
TABLE 9—ANNUAL BENEFIT AFTER FULL IMPLEMENTATION
[Millions]
Without
relevant
disabilities
State and local
gov’ts
Total
Time savings—current users ...............................................
Time savings—mobile apps .................................................
Educational attainment ........................................................
$813.5
76.3
10.2
$1,022.1
95.9
295.8
$2,713.9
254.5
N/A
N/A
N/A
N/A
$4,549.5
426.7
306.0
Total benefits ................................................................
900.0
1,413.7
2,968.5
0.0
5,282.2
a For
khammond on DSKJM1Z7X2PROD with RULES2
Other
relevant
disability a
Visual
disability
Benefit type
purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ‘‘other relevant disabilities.’’
TABLE 10—10-YEAR AVERAGE ANNUALIZED BENEFITS, 3 PERCENT DISCOUNT RATE
[Millions]
Time savings—current users ...............................................
Time savings—mobile apps .................................................
VerDate Sep<11>2014
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Jkt 262001
Other
relevant
disability a
Visual
disability
Benefit type
PO 00000
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$686.3
64.4
Fmt 4701
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$862.3
80.9
Without
relevant
disabilities
$2,289.6
214.7
E:\FR\FM\24APR2.SGM
24APR2
State and local
gov’ts
N/A
N/A
Total
$3,838.3
360.0
Federal Register / Vol. 89, No. 80 / Wednesday, April 24, 2024 / Rules and Regulations
31333
TABLE 10—10-YEAR AVERAGE ANNUALIZED BENEFITS, 3 PERCENT DISCOUNT RATE—Continued
[Millions]
Other
relevant
disability a
Visual
disability
Benefit type
Without
relevant
disabilities
State and local
gov’ts
Total
Educational attainment ........................................................
34.4
996.9
N/A
N/A
1,031.3
Total benefits ................................................................
785.1
1,940.0
2,504.4
0.0
5,229.5
a For
purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ‘‘other relevant disabilities.’’
TABLE 11—10-YEAR AVERAGE ANNUALIZED BENEFITS, 7 PERCENT DISCOUNT RATE
[Millions]
Other
relevant
disability a
Visual
disability
Benefit type
Without
relevant
disabilities
State and local
gov’ts
Total
Time savings—current users ...............................................
Time savings—mobile apps .................................................
Educational attainment ........................................................
$668.1
62.7
31.4
$839.4
78.7
910.8
$2,229.0
209.0
N/A
N/A
N/A
N/A
$3,736.6
350.4
942.2
Total benefits ................................................................
762.2
1,828.9
2,438.0
0.0
5,029.2
a For
purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ‘‘other relevant disabilities.’’
TABLE 12—10-YEAR AVERAGE ANNUALIZED COMPARISON OF COSTS AND BENEFITS
3% Discount
rate
Figure
Average annualized costs (millions) ........................................................................................................................
Average annualized benefits (millions) ....................................................................................................................
Net benefits (millions) ..............................................................................................................................................
Cost-to-benefit ratio .................................................................................................................................................
khammond on DSKJM1Z7X2PROD with RULES2
B. Final Regulatory Flexibility Analysis
Summary
The Department has prepared a FRFA
to comply with its obligations under the
Regulatory Flexibility Act and related
laws and Executive Orders requiring
executive branch agencies to consider
the effects of regulations on small
entities.95 The Department’s FRFA
includes an explanation of steps that the
Department has taken to minimize the
impact of this rule on small entities,
responses to a comment by the Chief
Counsel for Advocacy of the Small
Business Administration, a description
of impacts of this rule on small entities,
alternatives the Department considered
related to small entities, and other
information required by the RFA. The
Department includes a short summary
of some monetized cost and benefit
findings made in the FRFA below, but
the full FRFA will be published along
with the Department’s FRIA, and it will
be made available to the public at
95 See U.S. Small Bus. Admin., A Guide for
Government Agencies: How To Comply with the
Regulatory Flexibility Act, at 19 (Aug. 2017),
https://advocacy.sba.gov/wp-content/uploads/
2019/07/How-to-Comply-with-the-RFA-WEB.pdf
[https://perma.cc/PWL9-ZTW6].
VerDate Sep<11>2014
17:05 Apr 23, 2024
Jkt 262001
https://www.justice.gov/crt/disabilityrights-section.
The Department calculated both costs
and benefits to small government
entities as part of its FRFA. The
Department also compared costs to
revenues for small government entities
to evaluate the economic impact to
these small government entities. The
costs for each small government entity
type and size are generally estimated to
be below 1 percent of revenues (the one
exception is small independent
community colleges, for which the costto-revenue ratio is 1.05 percent and 1.10
percent using a 3 percent and 7 percent
discount rate, respectively),96 so the
Department does not believe the rule
will be unduly burdensome or costly for
public entities.97 These costs include
96 However, the Department notes that revenue
for small independent community colleges was
estimated using the 2012 Census of Governments,
so revenue for small independent community
colleges would likely be underestimated if small
independent community colleges had a greater
share of total local government revenue in 2022
than in 2012. If this were true, the Department
expects that the cost-to-revenue ratio for small
independent community colleges would be lower.
97 As a point of reference, the United States Small
Business Administration advises agencies that a
potential indicator that the impact of a regulation
may be ‘‘significant’’ is whether the costs exceed 1
PO 00000
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Fmt 4701
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$3,331.3
$5,229.5
$1,898.2
0.6
7% Discount
rate
$3,515.0
$5,029.2
$1,514.2
0.7
one-time costs for familiarization with
the requirements of the rule, the
purchase of software to assist with
remediation of web content or mobile
apps, the time spent testing and
remediating web content and mobile
apps to comply with WCAG 2.1 Level
AA, and elementary, secondary, and
postsecondary education course content
remediation. Annual costs include
recurring costs for software licenses and
remediation of future content.
Costs to small entities are displayed
in Table 13 and Table 14; Table 15
contains the costs and revenues per
government type and cost-to-revenue
percent of the gross revenues of the entities in a
particular sector, although the threshold may vary
based on the particular types of entities at issue. See
U.S. Small Bus. Admin., A Guide for Government
Agencies: How To Comply with the Regulatory
Flexibility Act, at 19 (Aug. 2017), https://
advocacy.sba.gov/wp-content/uploads/2019/07/
How-to-Comply-with-the-RFA-WEB.pdf [https://
perma.cc/PWL9-ZTW6]; see also U.S. Env’t Prot.
Agency, EPA’s Action Dev. Process: Final Guidance
for EPA Rulewriters: Regulatory Flexibility Act, at
24 (Nov. 2006), https://www.epa.gov/sites/default/
files/2015-06/documents/guidance-regflexact.pdf
[https://perma.cc/9XFZ-3EVA] (providing an
illustrative example of a hypothetical analysis
under the RFA in which, for certain small entities,
economic impact of ‘‘[l]ess than 1% for all affected
small entities’’ may be ‘‘[p]resumed’’ to have ‘‘no
significant economic impact on a substantial
number of small entities’’).
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Federal Register / Vol. 89, No. 80 / Wednesday, April 24, 2024 / Rules and Regulations
ratios using a 3 percent and 7 percent
discount rate. Because the Department’s
cost estimates take into account
different small entity types and sizes,
the Department believes the estimates in
this analysis are generally representative
of what smaller entities of each type
should expect to pay. This is because
the Department’s methodology generally
estimated costs based on the sampled
baseline accessibility to full
accessibility in accordance with this
rule, which provides a precise estimate
of the costs within each government
type and size. While the Department
recognizes that there may be variation in
costs for differently sized small entity
types, the Department’s estimates are
generally representative given the
precision in our methodology within
each stratified group. The Department
received several comments on its
estimates for small government entity
costs. A summary of those comments
and the Department’s responses are
included in the accompanying FRFA.
TABLE 13—PRESENT VALUE OF TOTAL 10-YEAR COSTS PER ENTITY, 3% DISCOUNT RATE
Type of government entity
Number of
entities
Special district ...................
County (small) ...................
Municipality (small) ............
Township (small) ...............
School district (small) ........
U.S. Territory (small) .........
Community College ...........
Regulatory
familiarization
38,542
2,105
18,729
16,097
11,443
2
1,146
$320
320
320
320
320
320
320
Website
testing and
remediation
$16,452
52,893
161,722
132,260
168,261
1,026,731
1,020,862
Mobile app
testing and
remediation
Postsecondary
course
remediation
$0
12,022
0
0
27,634
68,209
15,916
Primary and
secondary
course
remediation
N/A
N/A
N/A
N/A
N/A
N/A
$3,617,001
N/A
$19,949
876
2,198
81,971
N/A
N/A
Third-Party
website
remediation
$790
5,743
8,957
7,695
7,648
6,160
67,409
Total
$17,561
90,927
171,875
142,472
285,834
1,101,420
4,721,508
TABLE 14—PRESENT VALUE OF TOTAL 10-YEAR COSTS PER ENTITY, 7% DISCOUNT RATE
Type of government entity
Number of
entities
Special district ...................
County (small) ...................
Municipality (small) ............
Township (small) ...............
School district (small) ........
U.S. Territory (small) .........
Community College ...........
Regulatory
familiarization
38,542
2,105
18,729
16,097
11,443
2
1,146
Website
testing and
remediation
$308
308
308
308
308
308
308
$14,226
45,992
140,772
115,101
146,475
894,141
900,471
Mobile app
testing and
remediation
Postsecondary
course
remediation
$0
11,147
0
0
25,624
63,264
15,031
Primary and
secondary
course
remediation
N/A
N/A
N/A
N/A
N/A
N/A
$3,099,245
N/A
$17,463
767
1,924
71,758
N/A
N/A
Third-Party
website
remediation
$683
4,993
7,797
6,697
6,658
5,365
59,460
Total
$15,217
79,904
149,643
124,029
250,822
963,078
4,074,515
TABLE 15—NUMBER OF SMALL ENTITIES AND RATIO OF COSTS TO GOVERNMENT REVENUES
Government type
Number of
small entities
County ...............................
Municipality ........................
Township ...........................
Special district ...................
School district a ..................
U.S. territory ......................
CCs b .................................
CCs—independent ............
Total (includes all CCs) .....
Total (only independent
CCs) ...............................
Average
annual cost
per entity
(3%) a c
Average
annual cost
per entity
(7%) a 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%)
2,105
18,729
16,097
38,542
11,443
2
960
231
87,878
$10,659.4
20,149.0
16,666.1
2,058.7
36,023.7
129,120.0
553,504.8
553,504.8
19,245.7
$11,376.5
21,305.8
17,616.8
2,166.5
38,347.6
137,120.7
580,119.2
580,119.2
20,324.4
$22.4
377.4
268.3
79.3
412.2
0.3
531.4
127.9
1,691.3
$23.9
399.0
283.6
83.5
438.8
0.3
556.9
134.0
1,786.1
$69,686.3
197,708.7
59,802.5
298,338.3
354,350.5
992.6
N/A
12,149.5
N/A
0.03
0.19
0.45
0.03
0.12
0.03
N/A
1.05
N/A
0.03
0.20
0.47
0.03
0.12
0.03
N/A
1.10
N/A
87,149
14,776.6
15,641.7
1,287.8
1,363.2
993,028.5
0.13
0.14
a Excludes
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community colleges, which are costed separately.
b Includes all dependent community college districts and small independent community college districts. Revenue data are not available for the dependent community college districts.
c This cost consists of regulatory familiarization costs, government website testing and remediation costs, mobile app testing and remediation costs, postsecondary
education course remediation costs, elementary and secondary education course remediation costs, and costs for third-party websites averaged over ten years.
Though not included in the
Department’s primary benefits analysis
due to methodological limitations, the
Department estimated time savings for
State and local government entities from
reduced contacts (i.e., fewer interactions
assisting residents). Improved web
accessibility will lead some individuals
who accessed government services via
the phone, mail, or in person to begin
using the public entity’s website to
complete the task. This will generate
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time savings for government employees.
In the Department’s FRFA, the
Department estimates that this will
result in time savings to small
governments of $192.6 million per year
once full implementation is complete.
Assuming lower benefits during the
implementation period results in
average annualized benefits of $162.5
million and $158.1 million to small
governments using a 3 percent and 7
percent discount rate, respectively. The
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Department notes that these benefits
rely on assumptions for which the
Department could not find reliable data,
and stresses the uncertainty of these
estimates given the strong assumptions
made.
The Department explains in greater
detail its efforts to minimize the
economic impact on small entities, as
well as estimates of regulatory
alternatives that the Department
considered to reduce those impacts in
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the full FRFA accompanying this rule.
The FRFA also includes other
information such as the Department’s
responses to the comment from the
Chief Counsel for Advocacy of the Small
Business Administration and responses
to other comments related to the rule’s
impact on small entities. Finally, the
Department will issue a small entity
compliance guide,98 which should help
public entities better understand their
obligations under this rule.
C. Executive Order 13132: Federalism
Executive Order 13132 requires
executive branch agencies to consider
whether a proposed rule will have
federalism implications.99 That is, the
rulemaking agency must determine
whether the rule is likely to have
substantial direct effects on State and
local governments, on the relationship
between the Federal Government and
the States and localities, or on the
distribution of power and
responsibilities among the different
levels of government. If an agency
believes that a proposed rule is likely to
have federalism implications, it must
consult with State and local government
entity officials about how to minimize
or eliminate the effects.
Title II of the ADA covers State and
local government entity services,
programs, and activities, and, therefore,
has federalism implications. State and
local government entities have been
subject to the ADA since 1991, and the
many State and local government
entities that receive Federal financial
assistance have also been required to
comply with the requirements of section
504 of the Rehabilitation Act. Hence, the
ADA and the title II regulation are not
novel for State and local government
entities.
In crafting this regulation, the
Department has been mindful of its
obligation to meet the objectives of the
ADA while also minimizing conflicts
between State law and Federal interests.
Since the Department began efforts to
issue a web accessibility regulation
more than 13 years ago, the Department
has received substantial feedback from
State and local government entities
about the potential impacts of
rulemaking on this topic. In the NPRM,
the Department solicited comments
from State and local officials and their
representative national organizations on
the rule’s effects on State and local
government entities, and on whether the
rule may have direct effects on the
relationship between the Federal
98 See Public Law 104–121, sec. 212, 110 Stat.
847, 858 (1996) (5 U.S.C. 601 note).
99 64 FR 43255 (Aug. 4, 1999).
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Government and the States, or the
distribution of power and
responsibilities among the various
levels of government. The Department
also attended three listening sessions on
the NPRM hosted by the SBA’s Office of
Advocacy, the Association on Higher
Education and Disability, and the Great
Lakes ADA Center at the University of
Illinois at Chicago, in conjunction with
the ADA National Network. These
sessions were cumulatively attended by
more than 500 members of the public,
including representatives from public
entities, and the Department received
feedback during these sessions about the
potential impacts of the rule on public
entities.
In response to the NPRM, the
Department received written comments
from members of the public about the
relationship between this rule and State
and local laws addressing public
entities’ web content and mobile apps.
Some commenters asked questions and
made comments about how this rule
would interact with State laws
providing greater or less protection for
the rights of individuals with
disabilities. The Department wishes to
clarify that, consistent with 42 U.S.C.
12201, this final rule will preempt State
laws affecting entities subject to the
ADA only to the extent that those laws
provide less protection for the rights of
individuals with disabilities. This rule
does not invalidate or limit the
remedies, rights, and procedures of any
State laws that provide greater or equal
protection for the rights of individuals
with disabilities. Moreover, the
Department’s provision on equivalent
facilitation at § 35.203 provides that
nothing prevents a public entity from
using designs, methods, or techniques
as alternatives to those prescribed in
this rule, provided that such alternatives
result in substantially equivalent or
greater accessibility and usability.
Accordingly, for example, if a State law
requires public entities in that State to
conform to WCAG 2.2, nothing in this
rule would prevent a public entity from
complying with that standard.
The Department also received
comments asking how this rule will
interact with State or local laws
requiring public entities to post certain
content online. The Department notes
that this rule does not change public
entities’ obligations under State and
local laws governing the types of
content that public entities must
provide or make available online.
Instead, this rule simply requires that
when public entities provide or make
available web content or mobile apps,
they must ensure that that content and
those apps comply with the
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requirements set forth in this rule. This
is consistent with the remainder of the
title II regulatory framework, under
which public entities have been
required to ensure that their services,
programs, and activities comply with
specific accessibility requirements since
1991, even for services, programs, or
activities that are otherwise governed by
State and local laws.
D. National Technology Transfer and
Advancement Act of 1995
The National Technology Transfer
and Advancement Act of 1995
(‘‘NTTAA’’) directs that, as a general
matter, all Federal agencies and
departments shall use technical
standards that are developed or adopted
by voluntary consensus standards
bodies, which are private—generally
nonprofit—organizations that develop
technical standards or specifications
using well-defined procedures that
require openness, balanced
participation among affected interests
and groups, fairness and due process,
and an opportunity for appeal, as a
means to carry out policy objectives or
activities.100 In addition, the NTTAA
directs agencies to consult with
voluntary, private sector, consensus
standards bodies and requires that
agencies participate with such bodies in
the development of technical standards
when such participation is in the public
interest and is compatible with agency
and departmental missions, authorities,
priorities, and budget resources.101
The Department is adopting WCAG
2.1 Level AA as the accessibility
standard to apply to web content and
mobile apps of title II entities. WCAG
2.1 Level AA was developed by W3C,
which has been the principal
international organization involved in
developing protocols and guidelines for
the web. W3C develops a variety of
technical standards and guidelines,
including ones relating to privacy,
internationalization of technology, and
accessibility. Thus, the Department is
complying with the NTTAA in selecting
WCAG 2.1 Level AA as the applicable
accessibility standard.
E. Plain Language Instructions
The Department makes every effort to
promote clarity and transparency in its
rulemaking. In any regulation, there is a
tension between drafting language that
is simple and straightforward and
100 Public Law 104–113, sec. 12(d)(1) (15 U.S.C.
272 note); see also Office of Mgmt. and Budget,
Circular A–119 (Jan 27, 2016), https://
www.whitehouse.gov/wp-content/uploads/2020/07/
revised_circular_a-119_as_of_1_22.pdf [https://
perma.cc/A5LP-X3DB].
101 Public Law 104–113, sec. 12(d)(2).
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drafting language that gives full effect to
issues of legal interpretation. The
Department operates a toll-free ADA
Information Line at (800) 514–0301
(voice); 1–833–610–1264 (TTY) that the
public is welcome to call for assistance
understanding anything in this rule. In
addition, the ADA.gov website strives to
provide information in plain language
about the law, including this rule. The
Department will also issue a small
entity compliance guide,102 which
should help public entities better
understand their obligations under this
rule.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (‘‘PRA’’), no person is required
to respond to a ‘‘collection of
information’’ unless the agency has
obtained a control number from
OMB.103 This final rule does not contain
any collections of information as
defined by the PRA.
G. Unfunded Mandates Reform Act
Section 4(2) of the Unfunded
Mandates Reform Act of 1995 104
excludes from coverage under that Act
any proposed or final Federal regulation
that ‘‘establishes or enforces any
statutory rights that prohibit
discrimination on the basis of race,
color, religion, sex, national origin, age,
handicap, or disability.’’ Accordingly,
this rulemaking is not subject to the
provisions of the Unfunded Mandates
Reform Act.
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H. Incorporation by Reference
As discussed above, through this rule,
the Department is adopting the
internationally recognized accessibility
standard for web access, WCAG 2.1
Level AA, published in June 2018, as
the technical standard for web and
mobile app accessibility under title II of
the ADA. WCAG 2.1 Level AA,
published by W3C WAI, specifies
success criteria and requirements that
make web content more accessible to all
users, including individuals with
disabilities. The Department
incorporates WCAG 2.1 Level AA by
reference into this rule, instead of
restating all of its requirements
verbatim. To the extent there are
distinctions between WCAG 2.1 Level
AA and the standards articulated in this
rule, the standards articulated in this
rule prevail.
The Department notes that when W3C
publishes new versions of WCAG, those
102 See
Public Law 104–121, sec. 212, 110 Stat.
847, 858 (1996) (5 U.S.C. 601 note).
103 44 U.S.C. 3501 et seq.
104 2 U.S.C. 1503(2).
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versions will not be automatically
incorporated into this rule. Federal
agencies do not incorporate by reference
into published regulations future
versions of standards developed by
bodies like W3C. Federal agencies are
required to identify the particular
version of a standard incorporated by
reference in a regulation.105 When an
updated version of a standard is
published, an agency must revise its
regulation if it seeks to incorporate any
of the new material.
WCAG 2.1 Level AA is reasonably
available to interested parties. Free
copies of WCAG 2.1 Level AA are
available online on W3C’s website at
https://www.w3.org/TR/2018/RECWCAG21-20180605/ and https://
perma.cc/UB8A-GG2F. In addition, a
copy of WCAG 2.1 Level AA is also
available for inspection by appointment
at the Disability Rights Section, Civil
Rights Division, U.S. Department of
Justice, 150 M St. NE, 9th Floor,
Washington, DC 20002.
I. Congressional Review Act
In accordance with the Congressional
Review Act, the Department has
determined that this rule is a major rule
as defined by 5 U.S.C. 804(2). The
Department will submit this final rule
and other appropriate reports to
Congress and the Government
Accountability Office for review.
List of Subjects for 28 CFR Part 35
Administrative practice and
procedure, Civil rights,
Communications, Incorporation by
reference, Individuals with disabilities,
State and local requirements.
By the authority vested in me as
Attorney General by law, including 5
U.S.C. 301; 28 U.S.C. 509, 510; sections
201 and 204 of the of the Americans
with Disabilities Act, Public Law 101–
336, as amended, and section 506 of the
ADA Amendments Act of 2008, Public
Law 110–325, and for the reasons set
forth in appendix D to 28 CFR part 35,
chapter I of title 28 of the Code of
Federal Regulations is amended as
follows—
PART 35—NONDISCRIMINATION ON
THE BASIS OF DISABILITY IN STATE
AND LOCAL GOVERNMENT SERVICES
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.
105 See, e.g., 1 CFR 51.1(f) (‘‘Incorporation by
reference of a publication is limited to the edition
of the publication that is approved [by the Office
of the Federal Register]. Future amendments or
revisions of the publication are not included.’’).
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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,’’ ‘‘User agent,’’ ‘‘WCAG
2.1,’’ and ‘‘Web content’’ in alphabetical
order to read as follows:
■
§ 35.104
Definitions.
*
*
*
*
*
Archived web content means web
content that—
(1) Was created before the date the
public entity is required to comply with
subpart H of this part, reproduces paper
documents created before the date the
public entity is required to comply with
subpart H, or reproduces the contents of
other physical media created before the
date the public entity is required to
comply with subpart H;
(2) Is retained exclusively for
reference, research, or recordkeeping;
(3) Is not altered or updated after the
date of archiving; and
(4) Is organized and stored in a
dedicated area or areas clearly identified
as being archived.
*
*
*
*
*
Conventional electronic documents
means web content or content in mobile
apps that is in the following electronic
file formats: portable document formats
(‘‘PDF’’), word processor file formats,
presentation file formats, and
spreadsheet file formats.
*
*
*
*
*
Mobile applications (‘‘apps’’) means
software applications that are
downloaded and designed to run on
mobile devices, such as smartphones
and tablets.
*
*
*
*
*
Special district government means a
public entity—other than a county,
municipality, township, or independent
school district—authorized by State law
to provide one function or a limited
number of designated functions with
sufficient administrative and fiscal
autonomy to qualify as a separate
government and whose population is
not calculated by the United States
Census Bureau in the most recent
decennial Census or Small Area Income
and Poverty Estimates.
*
*
*
*
*
Total population means—
(1) If a public entity has a population
calculated by the United States Census
Bureau in the most recent decennial
Census, the population estimate for that
public entity as calculated by the United
States Census Bureau in the most recent
decennial Census; or
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(2) If a public entity is an independent
school district, or an instrumentality of
an independent school district, the
population estimate for the independent
school district as calculated by the
United States Census Bureau in the
most recent Small Area Income and
Poverty Estimates; or
(3) If a public entity, other than a
special district government or an
independent school district, does not
have a population estimate calculated
by the United States Census Bureau in
the most recent decennial Census, but is
an instrumentality or a commuter
authority of one or more State or local
governments that do have such a
population estimate, the combined
decennial Census population estimates
for any State or local governments of
which the public entity is an
instrumentality or commuter authority;
or
(4) For the National Railroad
Passenger Corporation, the population
estimate for the United States as
calculated by the United States Census
Bureau in the most recent decennial
Census.
User agent means any software that
retrieves and presents web content for
users.
*
*
*
*
*
WCAG 2.1 means the Web Content
Accessibility Guidelines (‘‘WCAG’’) 2.1,
W3C Recommendation 05 June 2018,
https://www.w3.org/TR/2018/RECWCAG21-20180605/ and 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 the information
and sensory experience to be
communicated to the user by means of
a user agent, including code or markup
that defines the content’s structure,
presentation, and interactions.
Examples of web content include text,
images, sounds, videos, controls,
animations, and conventional electronic
documents.
■
3. Add 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 Effect of noncompliance that has a
minimal impact on access.
35.206–35.209 [Reserved]
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§ 35.200 Requirements for web and mobile
accessibility.
(a) General. A public entity shall
ensure that the following are readily
accessible to and usable by individuals
with disabilities:
(1) Web content that a public entity
provides or makes available, directly or
through contractual, licensing, or other
arrangements; and
(2) Mobile apps that a public entity
provides or makes available, directly or
through contractual, licensing, or other
arrangements.
(b) Requirements. (1) Beginning April
24, 2026, a public entity, other than a
special district government, with a total
population of 50,000 or more shall
ensure that the web content and mobile
apps that the public entity provides or
makes available, directly or through
contractual, licensing, or other
arrangements, comply with Level A and
Level AA success criteria and
conformance requirements specified in
WCAG 2.1, unless the public entity can
demonstrate that compliance with this
section would result in a fundamental
alteration in the nature of a service,
program, or activity or in undue
financial and administrative burdens.
(2) Beginning April 26, 2027, a public
entity with a total population of less
than 50,000 or any public entity that is
a special district government shall
ensure that the web content and mobile
apps that the public entity provides or
makes available, directly or through
contractual, licensing, or other
arrangements, comply with Level A and
Level AA success criteria and
conformance requirements specified in
WCAG 2.1, unless the public entity can
demonstrate that compliance with this
section would result in a fundamental
alteration in the nature of a service,
program, or activity or in undue
financial and administrative burdens.
(3) WCAG 2.1 is incorporated by
reference into this section with the
approval of the Director of the Federal
Register under 5 U.S.C. 552(a) and 1
CFR part 51. All material approved for
incorporation by reference is available
for inspection at the U.S. Department of
Justice and at the National Archives and
Records Administration (‘‘NARA’’).
Contact the U.S. Department of Justice
at: Disability Rights Section, Civil Rights
Division, U.S. Department of Justice,
150 M St. NE, 9th Floor, Washington,
DC 20002; ADA Information Line: (800)
514–0301 (voice) or 1–833–610–1264
(TTY); website: www.ada.gov [https://
perma.cc/U2V5-78KW]. For information
on the availability of this material at
NARA, visit www.archives.gov/federalregister/cfr/ibr-locations.html [https://
perma.cc/9SJ7-D7XZ] or email
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31337
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: https://
www.w3.org/TR/2018/REC-WCAG2120180605/ and https://perma.cc/UB8AGG2F.
§ 35.201
Exceptions.
The requirements of § 35.200 do not
apply to the following:
(a) Archived web content. Archived
web content as defined in § 35.104.
(b) Preexisting conventional electronic
documents. Conventional electronic
documents that are available as part of
a public entity’s web content or mobile
apps before the date the public entity is
required to comply with this subpart,
unless such documents are currently
used to apply for, gain access to, or
participate in the public entity’s
services, programs, or activities.
(c) Content posted by a third party.
Content posted by a third party, unless
the third party is posting due to
contractual, licensing, or other
arrangements with the public entity.
(d) Individualized, passwordprotected or otherwise secured
conventional electronic documents.
Conventional electronic documents that
are:
(1) About a specific individual, their
property, or their account; and
(2) Password-protected or otherwise
secured.
(e) Preexisting social media posts. A
public entity’s social media posts that
were posted before the date the public
entity is required to comply with this
subpart.
§ 35.202
Conforming alternate versions.
(a) A public entity may use
conforming alternate versions of web
content, as defined by WCAG 2.1, to
comply with § 35.200 only where it is
not possible to make web content
directly accessible due to technical or
legal limitations.
(b) WCAG 2.1 is incorporated by
reference into this section with the
approval of the Director of the Federal
Register under 5 U.S.C. 552(a) and 1
CFR part 51. All material approved for
incorporation by reference is available
for inspection at the U.S. Department of
Justice and at NARA. Contact the U.S.
Department of Justice at: Disability
Rights Section, Civil Rights Division,
U.S. Department of Justice, 150 M St.
NE, 9th Floor, Washington, DC 20002;
ADA Information Line: (800) 514–0301
(voice) or 1–833–610–1264 (TTY);
website: www.ada.gov [https://
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perma.cc/U2V5-78KW]. For information
on the availability of this material at
NARA, visit www.archives.gov/federalregister/cfr/ibr-locations.html [https://
perma.cc/9SJ7-D7XZ] or email
fr.inspection@nara.gov. The material
may be obtained from W3C WAI, 401
Edgewater Place, Suite 600, Wakefield,
MA 01880; phone: (339) 273–2711;
email: contact@w3.org; website: https://
www.w3.org/TR/2018/REC-WCAG2120180605/ and 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.
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§ 35.204
Where a public entity can
demonstrate that 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
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 Effect of noncompliance that has
a minimal impact on access.
A public entity that is not in full
compliance with the requirements of
§ 35.200(b) will be deemed to have met
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§§ 35.206–35.209
[Reserved]
4. Add appendix D to part 35 to read
as follows:
■
Duties.
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the requirements of § 35.200 in the
limited circumstance in which the
public entity can demonstrate that the
noncompliance has such a minimal
impact on access that it would not affect
the ability of individuals with
disabilities to use the public entity’s
web content or mobile app to do any of
the following in a manner that provides
substantially equivalent timeliness,
privacy, independence, and ease of use:
(a) Access the same information as
individuals without disabilities;
(b) Engage in the same interactions as
individuals without disabilities;
(c) Conduct the same transactions as
individuals without disabilities; and
(d) Otherwise participate in or benefit
from the same services, programs, and
activities as individuals without
disabilities.
Jkt 262001
Appendix D to Part 35—Guidance to
Revisions to ADA Title II Regulation on
Accessibility of Web Information and
Services of State and Local Government
Entities
Note: This appendix contains guidance
providing a section-by-section analysis of the
revisions to this part published on April 24,
2024.
Section-by-Section Analysis and Response to
Public Comments
This appendix provides a detailed
description of the Department’s changes to
this part (the title II regulation), the reasoning
behind those changes, and responses to
public comments received in connection
with the rulemaking. The Department made
changes to subpart A of this part and added
subpart H to this part. The section-by-section
analysis addresses the changes in the order
they appear in the title II regulation.
Subpart A—General
Section 35.104
Definitions
‘‘Archived Web Content’’
The Department is including in § 35.104 a
definition for ‘‘archived web content.’’
‘‘Archived web content’’ is defined as web
content that was created before the date the
public entity is required to comply with
subpart H of this part, reproduces paper
documents created before the date the public
entity is required to comply with subpart H,
or reproduces the contents of other physical
media created before the date the public
entity is required to comply with subpart H.
Second, the web content is retained
exclusively for reference, research, or
recordkeeping. Third, the web content is not
altered or updated after the date of archiving.
Fourth, the web content is organized and
stored in a dedicated area or areas clearly
identified as being archived. The definition
is meant to capture historic web content that,
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while outdated or superfluous, is maintained
unaltered in a dedicated archived area for
reference, research, or recordkeeping. The
term is used in the exception set forth in
§ 35.201(a). The Department provides a more
detailed explanation of the application of the
exception in the section-by-section analysis
of § 35.201(a).
The Department made several revisions to
the definition of ‘‘archived web content’’
from the notice of proposed rulemaking
(‘‘NPRM’’). The Department added a new part
to the definition to help clarify the scope of
content covered by the definition and
associated exception. The new part of the
definition, the first part, specifies that
archived web content is limited to three
types of historic content: web content that
was created before the date the public entity
is required to comply with subpart H of this
part; web content that reproduces paper
documents created before the date the public
entity is required to comply with subpart H;
and web content that reproduces the contents
of other physical media created before the
date the public entity is required to comply
with subpart H.
Web content that was created before the
date a public entity is required to comply
with subpart H of this part satisfies the first
part of the definition. In determining the date
web content was created, the Department
does not intend to prohibit public entities
from making minor adjustments to web
content that was initially created before the
relevant compliance dates specified in
§ 35.200(b), such as by redacting personally
identifying information from web content as
necessary before it is posted to an archive,
even if the adjustments are made after the
compliance date. In contrast, if a public
entity makes substantial changes to web
content after the date the public entity is
required to comply with subpart H, such as
by adding, updating, or rearranging content
before it is posted to an archive, the content
would likely no longer meet the first part of
the definition. If the public entity later alters
or updates the content after it is posted in an
archive, the content would not meet the third
part of the definition of ‘‘archived web
content’’ and it would generally need to
conform to WCAG 2.1 Level AA.
Web content that reproduces paper
documents or that reproduces the contents of
other physical media would also satisfy the
first part of the definition if the paper
documents or the contents of the other
physical media were created before the date
the public entity is required to comply with
subpart H of this part. Paper documents
include various records that may have been
printed, typed, handwritten, drawn, painted,
or otherwise marked on paper. Videotapes,
audiotapes, film negatives, CD–ROMs, and
DVDs are examples of physical media. The
Department anticipates that public entities
may identify or discover historic paper
documents or historic content contained on
physical media that they wish to post in an
online archive following the time they are
required to comply with subpart H. For
example, a State agricultural agency might
move to a new building after the date it is
required to comply with subpart H and
discover a box in storage that contains
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hundreds of paper files and photo negatives
from 1975 related to farms in the state at that
time. If the agency reproduced the
documents and photos from the film
negatives as web content, such as by
scanning the documents and film negatives
and saving the scans as PDF documents that
are made available online, the resulting PDF
documents would meet the first part of the
definition of ‘‘archived web content’’ because
the underlying paper documents and photos
were created in 1975. The Department
reiterates that it does not intend to prohibit
public entities from making minor
adjustments to web content before posting it
to an archive, such as by redacting personally
identifying information from paper
documents. Therefore, the State agricultural
agency could likely redact personally
identifying information about farmers from
the scanned PDFs as necessary before posting
them to its online archive. But, if the agency
were to make substantial edits to PDFs, such
as by adding, updating, or rearranging
content before posting the PDFs to its
archive, the PDFs would likely not meet the
first part of the definition of ‘‘archived web
content’’ because, depending on the
circumstances, they may no longer be a
reproduction of the historic content. In
addition, if the agency later altered or
updated the PDFs after they were posted in
an archive, the content would not meet the
third part of the definition of ‘‘archived web
content’’ and it would generally need to
conform to WCAG 2.1 Level AA.
The Department added the first part to the
definition of ‘‘archived web content’’ after
considering all the comments it received. In
the NPRM, the Department sought feedback
about the archived web content exception,
including whether there are alternatives to
the exception that the Department should
consider or additional limitations that should
be placed on the exception.1 Commenters
suggested various ways to add a time-based
limitation to the definition or exception. For
example, some commenters suggested that
archived content should be limited to content
created or posted before a certain date, such
as the date a public entity is required to
comply with subpart H of this part; there
should be a certain time period before web
content can be archived, such as two years
after the content is created or another time
frame based on applicable laws related to
public records; the exception should expire
after a certain period of time; or public
entities should have to remediate archived
web content over time, prioritizing content
that is most important for members of the
public. In contrast, another commenter
suggested that the exception should apply to
archived web content posted after the date
the public entity is required to comply with
subpart H if the content is of historical value
and only minimally altered before posting.
After reviewing the comments, the
Department believes the first part of the
definition sets an appropriate time-based
limitation on the scope of content covered by
the definition and exception that is
consistent with the Department’s stated
intent in the NPRM. In the NPRM, the
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Department explained that the definition of
‘‘archived web content’’ and the associated
exception were intended to cover historic
content that is outdated or superfluous.2 The
definition in § 35.104, which is based on
whether the relevant content was created
before the date a public entity is required to
comply with subpart H of this part, is now
more aligned with, and better situated to
implement, the Department’s intent to cover
historic content. The Department believes it
is appropriate to include a time-based
limitation in the definition, rather than to
add new criteria stating that content must be
historic, outdated, or superfluous, because it
is more straightforward to differentiate
content based on the date the content was
created. Therefore, there will be greater
predictability for individuals with
disabilities and public entities as to which
content is covered by the exception.
The Department declines to establish timebased limitations for when content may be
posted to an archive or to otherwise set an
expiration date for the exception. As
discussed elsewhere in this appendix, the
Department recognizes that many public
entities will need to carefully consider the
design and structure of their web content
before dedicating a certain area or areas for
archived content, and that, thereafter, it will
take time for public entities to identify all
content that meets the definition of ‘‘archived
web content’’ and post it in the newly created
archived area or areas. The archived web
content exception thus provides public
entities flexibility as to when they will
archive web content, so long as the web
content was created before the date the
public entity was required to comply with
subpart H of this part or the web content
reproduces paper documents or the contents
of other physical media created before the
date the public entity was required to comply
with subpart H. In addition, the Department
does not believe it is necessary to establish
a waiting period before newly created web
created content can be posted in an archive.
New content created after the date a public
entity is required to comply with subpart H
will generally not meet the first part of the
definition of ‘‘archived web content.’’ In the
limited circumstances in which newly
created web content could meet the first part
of the definition because it reproduces paper
documents or the contents of other physical
media created before the date the public
entity is required to comply with subpart H,
the Department believes the scope of content
covered by the exception is sufficiently
limited by the second part of the definition:
whether the content is retained exclusively
for reference, research, or recordkeeping.
In addition to adding a new first part to the
definition of ‘‘archived web content,’’ the
Department made one further change to the
definition from the NPRM. In the NPRM,
what is now the second part of the definition
pertained to web content that is
‘‘maintained’’ exclusively for reference,
research, or recordkeeping. The word
‘‘maintained’’ is now replaced with
‘‘retained.’’ The revised language is not
intended to change or limit the coverage of
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31339
the definition. Rather, the Department
recognizes that the word ‘‘maintain’’ can
have multiple relevant meanings. In some
circumstances, ‘‘maintain’’ may mean ‘‘to
continue in possession’’ of property, whereas
in other circumstances it might mean ‘‘to
engage in general repair and upkeep’’ of
property.3 The Department uses the word
‘‘maintain’’ elsewhere in the title II
regulation, at § 35.133(a), consistent with the
latter definition. In contrast, the third part of
the definition for ‘‘archived web content’’
specifies that content must not be altered or
updated after the date of archiving. Such
alterations or updates could be construed as
repair or upkeep, but that is not what the
Department intended to convey with its use
of the word ‘‘maintained’’ in this provision.
To avoid confusion about whether a public
entity can alter or update web content after
it is archived, the Department instead uses
the word ‘‘retained,’’ which has a definition
synonymous with the Department’s intended
use of ‘‘maintain’’ in the NPRM.4
Commenters raised concerns about several
aspects of the definition of ‘‘archived web
content.’’ With respect to the second part of
the definition, commenters stated that the
definition does not clearly articulate when
content is retained exclusively for reference,
research, or recordkeeping. Commenters
stated that the definition could be interpreted
inconsistently, and it could be understood to
cover important information that should be
accessible. For example, commenters were
concerned that web content containing
public entities’ past meeting minutes where
key decisions were made would qualify as
archived content, as well as web content
containing laws, regulations, court decisions,
or prior legal interpretations that are still
relevant. Therefore, commenters suggested
that the definition should not cover
recordkeeping documents, agendas, meeting
minutes, and other related documents at all.
One commenter recommended adding to the
definition to clarify that it does not apply to
content a public entity uses to offer a current
service, program, or activity, and another
commenter suggested that content should be
archived depending on how frequently
members of the public seek to access the
content. One commenter also stated that the
Department is left with the responsibility to
determine whether web content is
appropriately designated as archived when
enforcing subpart H of this part in the future,
and the commenter believed that this
enforcement may be insufficient to avoid
public entities evading their responsibilities
under subpart H. Another commenter
recommended that the Department should
conduct random audits to determine if public
entities are properly designating archived
web content.
The Department’s revised definition of
‘‘archived web content,’’ and specifically the
new first part of the definition, make clear
that the definition only pertains to content
created before the date the public entity is
3 Maintain, Black’s Law Dictionary (11th ed.
2019).
4 See Retain, Black’s Law Dictionary (11th ed.
2019) (‘‘To hold in possession or under control; to
keep and not lose, part with, or dismiss.’’).
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required to comply with subpart H of this
part. Therefore, new content such as agendas,
meeting minutes, and other documents
related to meetings that take place after the
public entity is required to comply with
subpart H would likely not meet all parts of
the definition of ‘‘archived web content.’’
This revision to the regulatory text is
responsive to comments raising the concern
that current and newly created content might
be erroneously labeled as archived based on
perceived ambiguity surrounding when
content is being retained solely for
‘‘reference, research, or recordkeeping.’’
Given the wide variety of web content that
public entities provide or make available, the
Department does not believe it is advisable
to add additional, more specific language in
the definition about what types of content are
covered. The Department also believes it
would be difficult to create a more specific
and workable definition for ‘‘archived web
content’’ based on how frequently members
of the public seek to view certain content
given the wide variation in the types and
sizes of public entities and the volume of
their web traffic. Whether web content is
retained exclusively for reference, research,
or recordkeeping will depend on the facts of
the particular situation. Based on some of the
examples of web content that commenters
discussed in connection with the definition,
the Department notes that if a public entity
posts web content that identifies the current
policies or procedures of the public entity, or
posts web content containing or interpreting
applicable laws or regulations related to the
public entity, that web content is unlikely to
be covered by the exception. This is because
the content is notifying members of the
public about their ongoing rights and
responsibilities. It therefore is not, as the
definition requires, being used exclusively
for reference, research, or recordkeeping.
Commenters also raised concerns about the
fourth part of the definition of ‘‘archived web
content,’’ which requires archived web
content to be stored in a dedicated area or
areas clearly identified as being archived.
Some commenters did not believe public
entities should be required to place archived
web content in a dedicated area or areas
clearly identified as being archived in order
to be covered by the exception at § 35.201(a).
Commenters stated that public entities
should retain flexibility in organizing and
storing files according to how their web
content is designed and structured, and it
might not be clear to members of the public
to look for content in an archive depending
on the overall makeup of the web content.
Commenters also stated that it would be
burdensome to create an archive area,
identify web content for the archive, and
move the content into the archive. One
commenter stated that public entities might
remove content rather than move it to a
dedicated archive. Commenters instead
suggested that the web content itself could be
individually marked as archived regardless of
where it is posted. One commenter also
requested the Department clarify that the
term ‘‘area’’ includes ‘‘websites’’ and
‘‘repositories’’ where archived web content is
stored.
After carefully weighing these comments,
the Department has decided not to change
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the fourth part of the definition for ‘‘archived
web content.’’ The Department believes
storing archived web content in a dedicated
area or areas clearly identified as being
archived will result in the greatest
predictability for individuals with
disabilities about which web content they
can expect to conform to WCAG 2.1 Level
AA. However, the Department notes that it
did not identify specific requirements about
the structure of an archived area, or how to
clearly identify an area as being archived, in
order to provide public entities greater
flexibility when complying with subpart H of
this part. For example, in some
circumstances a public entity may wish to
create separate web pages or websites to store
archived web content. In other
circumstances, a public entity may wish to
clearly identify that a specific section on a
specific web page contains archived web
content, even if the web page also contains
non-archived content in other separate
sections. However public entities ultimately
decide to store archived web content, the
Department reiterates that predictability for
individuals with disabilities is paramount.
To this end, the label or other identification
for a dedicated archived area or areas must
be clear so that individuals with disabilities
are able to detect when there is content they
may not be able to access. Whether a
particular dedicated area is clearly identified
as being archived will, of course, depend on
the facts of the particular situation. The
Department also emphasizes that the
existence of a dedicated area or areas for
archived content must not interfere with the
accessibility of other web content that is not
archived.
Some commenters also recommended an
alternative definition of ‘‘archived web
content’’ that does not include the second or
fourth parts of the definition. Commenters
proposed that archived web content should
be defined as web content that (1) was
provided or made available prior to the
effective date of the final rule and (2) is not
altered or updated after the effective date of
the final rule. While the Department agrees
that a time-based distinction is appropriate
and has therefore added the first part to the
definition, the Department does not believe
the commenters’ approach suggested here is
advisable because it has the potential to
cause a significant accessibility gap for
individuals with disabilities if public entities
rely on web content that is not regularly
updated or changed. Under the commenters’
proposed definition, the exception for
archived web content might cover important
web content used for reasons other than
reference, research, or recordkeeping if the
content has not been updated or altered. As
discussed in more detail in the section-bysection analysis of § 35.201(a), the purpose of
the exception for archived web content is to
help public entities focus their resources on
making accessible the most important
materials that people use most widely and
consistently, rather than historic or outdated
web content that is only used for reference,
research, or recordkeeping. Furthermore, as
discussed in the preceding paragraph, the
Department believes the fourth part of the
definition is necessary to ensure the greatest
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predictability for individuals with
disabilities about which web content they
can expect to conform to WCAG 2.1 Level
AA.
Commenters made other suggestions
related to the definition of and exception for
‘‘archived web content.’’ The Department has
addressed these comments in the discussion
of the § 35.201(a) archived web content
exception in the section-by-section analysis.
‘‘Conventional Electronic Documents’’
The Department is including in § 35.104 a
definition for ‘‘conventional electronic
documents.’’ ‘‘Conventional electronic
documents’’ are defined as web content or
content in mobile apps that is in the
following electronic file formats: portable
document formats, word processor file
formats, presentation file formats, and
spreadsheet file formats. The definition thus
provides an exhaustive list of electronic file
formats that constitute conventional
electronic documents. Examples of
conventional electronic documents include:
Adobe PDF files (i.e., portable document
formats), Microsoft Word files (i.e., word
processor files), Apple Keynote or Microsoft
PowerPoint files (i.e., presentation files), and
Microsoft Excel files (i.e., spreadsheet files).
The term ‘‘conventional electronic
documents’’ is used in § 35.201(b) to provide
an exception for certain such documents that
are available as part of a public entity’s web
content or mobile apps before the compliance
date of subpart H of this part, unless such
documents are currently used to apply for,
gain access to, or participate in the public
entity’s services, programs, or activities. The
term is also used in § 35.201(d) to provide an
exception for certain individualized,
password-protected or otherwise secured
conventional electronic documents, and is
addressed in more detail in the discussion in
the section-by-section analysis of § 35.201(b)
and (d). The definition of ‘‘conventional
electronic documents’’ covers documents
created or saved as electronic files that are
commonly available in an electronic form on
public entities’ web content and mobile apps
and that would have been traditionally
available as physical printed output.
In the NPRM, the Department asked
whether it should craft a more flexible
definition of ‘‘conventional electronic
documents’’ instead of a definition based on
an exhaustive list of file formats.5 In
response, the Department heard a range of
views from commenters. Some commenters
favored a broader and more generalized
definition instead of an exhaustive list of file
formats. For example, commenters suggested
that the Department could describe the
properties of conventional electronic
documents and provide a non-exhaustive list
of examples of such documents, or the
definition could focus on the importance of
the content contained in a document rather
than the file format. Some commenters
favoring a broader definition reasoned that
technology evolves rapidly, and the
exhaustive list of file formats the Department
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identified might not keep pace with
technological advancements.
Other commenters preferred the
Department’s approach of identifying an
exhaustive list of file formats. Some
commenters noted that an exhaustive list
provides greater clarity and predictability,
which assists public entities in identifying
their obligations under subpart H of this part.
Some commenters suggested that the
Department could provide greater clarity by
identifying specific file types in the
regulatory text rather than listing file formats
(e.g., the Department might specify the
Microsoft Word ‘‘.docx’’ file type rather than
‘‘word processor file formats’’).
After considering all the comments, the
Department declines to change its approach
to defining conventional electronic
documents. The Department expects that a
more flexible definition would result in less
predictability for both public entities and
individuals with disabilities, especially
because the Department does not currently
have sufficient information about how
technology will develop in the future. The
Department seeks to avoid such uncertainty
because the definition of ‘‘conventional
electronic documents’’ sets the scope of two
exceptions, § 35.201(b) and (d). The
Department carefully balanced benefits for
individuals with disabilities with the
challenges public entities face in making
their web content and mobile apps accessible
in compliance with subpart H of this part
when crafting these exceptions, and the
Department does not want to inadvertently
expand or narrow the exceptions with a less
predictable definition of ‘‘conventional
electronic documents.’’
Unlike in the NPRM, the definition of
‘‘conventional electronic documents’’ does
not include database file formats. In the
NPRM, the Department solicited comments
about whether it should add any file formats
to, or remove any file formats from, the
definition of ‘‘conventional electronic
documents.’’ While some commenters
supported keeping the list of file formats in
the proposed definition as is, the Department
also heard a range of views from other
commenters. Some commenters, including
public entities and trade groups representing
public accommodations, urged the
Department to add additional file formats to
the definition of ‘‘conventional electronic
documents.’’ For example, commenters
recommended adding image files, video files,
audio files, and electronic books such as
EPUB (electronic publications) or DAISY
(Digital Accessible Information System) files.
Commenters noted that files in such other
formats are commonly made available by
public entities and they can be burdensome
to remediate. Commenters questioned
whether there is a basis for distinguishing
between the file formats included in the
definition and other file formats not included
in the definition.
Other commenters believed the list of file
formats included in the proposed definition
of ‘‘conventional electronic documents’’ was
too broad. A number of disability advocacy
groups stated that certain document formats
included in the definition are generally easily
made accessible. Therefore, commenters did
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not believe such documents should generally
fall within the associated exceptions under
§ 35.201(b) and (d). Some commenters also
stated that there could be confusion about
accessibility requirements for database files
because database files and some spreadsheet
files may include data that are not primarily
intended to be human-readable. The
commenters stated that in many cases such
content is instead intended to be opened and
analyzed with other special software tools.
The commenters pointed out that data that is
not primarily intended to be human-readable
is equally accessible for individuals with
disabilities and individuals without
disabilities, and they recommended
clarifying that the accessibility requirements
do not apply to such data.
Some commenters suggested that certain
file formats not included in the definition of
‘‘conventional electronic documents,’’ such
as images or videos, may warrant different
treatment altogether. For example, one public
entity stated that it would be better to place
images and multimedia in a separate and
distinct category with a separate definition
and relevant technical standards where
needed to improve clarity. In addition, a
disability advocacy organization stated that
images do not need to be included in the
definition and covered by the associated
exceptions because public entities can
already uniquely exempt this content in
some circumstances by marking it as
decorative, and it is straightforward for
public entities to add meaningful alternative
text to important images and photos that are
not decorative.
After considering all the comments, the
Department agrees that database file formats
should not be included in the definition of
‘‘conventional electronic documents.’’ The
Department now understands that database
files may be less commonly available through
public entities’ web content and mobile apps
than other types of documents. To the extent
such files are provided or made available by
public entities, the Department understands
that they would not be readable by either
individuals with disabilities or individuals
without disabilities if they only contain data
that are not primarily intended to be humanreadable. Therefore, there would be limited
accessibility concerns, if any, that fall within
the scope of subpart H of this part associated
with documents that contain data that are not
primarily intended to be human-readable.
Accordingly, the Department believes it
could be confusing to include database file
formats in the definition. However, the
Department notes that while there may be
limited accessibility concerns, if any, related
to database files containing data that are not
primarily intended to be human-readable,
public entities may utilize these data to
create outputs for web content or mobile
apps, such as tables, charts, or graphs posted
on a web page, and those outputs would be
covered by subpart H unless they fall into
another exception.
The Department declines to make
additional changes to the list of file formats
included in the definition of ‘‘conventional
electronic documents.’’ After reviewing the
range of different views expressed by
commenters, the Department believes the
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current list strikes the appropriate balance
between ensuring access for individuals with
disabilities and feasibility for public entities
so that they can comply with subpart H of
this part. The list included in the definition
is also aligned with the Department’s
intention to cover documents that public
entities commonly make available in either
an electronic form or that would have been
traditionally available as physical printed
output. If public entities provide and make
available files in formats not included in the
definition, the Department notes that those
other files may qualify for the exception in
§ 35.201(a) if they meet the definition for
‘‘archived web content,’’ or the exception in
§ 35.201(e) for certain preexisting social
media posts if they are covered by that
exception’s description. To the extent those
other files are not covered by one of the
exceptions in § 35.201, the Department also
notes that public entities would not be
required to make changes to those files that
would result in a fundamental alteration in
the nature of a service, program, or activity,
or impose undue financial and
administrative burdens, as discussed in the
section-by-section analysis of § 35.204.
With respect to the comment suggesting
that it would be better to place images and
multimedia in a separate and distinct
category with a separate definition and
relevant technical standards where needed to
improve clarity, the Department notes that
the WCAG standards were designed to be
‘‘technology neutral.’’ 6 This means that they
are designed to be broadly applicable to
current and future web technologies.7
Accordingly, the Department believes WCAG
2.1 Level AA is the appropriate standard for
other file formats not included in the
definition of ‘‘conventional electronic
documents’’ because WCAG 2.1 was crafted
to address those other file formats as well.
The Department also recognizes that, as
some commenters pointed out, this part
treats conventional electronic documents
differently than WCAG 2.1, in that
conventional electronic documents are
included in the definition of ‘‘web content’’
in § 35.104, while WCAG 2.1 does not
include those documents in its definition of
‘‘web content.’’ The Department addresses
these comments in its analysis of the
definition of ‘‘web content.’’
As discussed in the preceding paragraphs,
the scope of the associated exception for
preexisting conventional electronic
documents, at § 35.201(b), is based on the
definition of ‘‘conventional electronic
documents.’’ The definition applies to
conventional electronic documents that are
part of a public entity’s web content or
mobile apps. The exception also applies to
‘‘conventional electronic documents’’ that are
part of a public entity’s web content or
mobile apps, but only if the documents were
provided or made available before the date
6 W3C, Introduction to Understanding WCAG,
https://www.w3.org/WAI/WCAG21/Understanding/
intro [https://perma.cc/XB3Y-QKVU] (June 20,
2023).
7 See W3C, Understanding Techniques for WCAG
Success Criteria, https://www.w3.org/WAI/
WCAG21/Understanding/understanding-techniques
[https://perma.cc/AMT4-XAAL] (June 20, 2023).
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the public entity is required to comply with
subpart H of this part. The Department
received a comment indicating there may not
be a logical connection between conventional
electronic documents and mobile apps;
therefore, according to the comment, the
exception should not apply to conventional
electronic documents that appear in mobile
apps. However, the Department also received
comments from disability advocacy
organizations and public entities confirming
the connection between the two technologies
and stating that some mobile apps allow
users to access conventional electronic
documents. The Department will retain its
approach of including ‘‘content in mobile
apps’’ in the definition of ‘‘conventional
electronic documents’’ given that the
Department agrees that some mobile apps
already use conventional electronic
documents.
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‘‘Mobile Applications (‘apps’)’’
Section 35.104 defines ‘‘mobile apps’’ as
software applications that are downloaded
and designed to run on mobile devices, such
as smartphones and tablets. For purposes of
this part, mobile apps include, for example,
native apps built for a particular platform
(e.g., Apple iOS, Google Android) or device
and hybrid apps using web components
inside native apps. This part will retain the
definition of ‘‘mobile apps’’ from the NPRM
without revision.
The Department received very few
comments on this definition. One commenter
noted that the Department does not appear to
consider other technologies that may use
mobile apps such as wearable technology.
The Department notes that the definition’s
examples of devices that use mobile apps
(i.e., smartphones and tablets) is a nonexhaustive list. Subpart H of this part applies
to all mobile apps that a public entity
provides or makes available, regardless of the
devices on which the apps are used. The
definition therefore may include mobile apps
used on wearable technology. Accordingly,
the proposed rule’s definition of ‘‘mobile
apps’’ will remain unchanged in this part.
‘‘Special District Government’’
The Department has added a definition for
‘‘special district government.’’ The term
‘‘special district government’’ is used in
§ 35.200(b) and is defined in § 35.104 to
mean a public entity—other than a county,
municipality, township, or independent
school district—authorized by State law to
provide one function or a limited number of
designated functions with sufficient
administrative and fiscal autonomy to qualify
as a separate government and whose
population is not calculated by the United
States Census Bureau in the most recent
decennial Census or Small Area Income and
Poverty Estimates. Because special district
governments do not have populations
calculated by the United States Census
Bureau and are not necessarily affiliated with
public entities that do have such
populations, their population sizes are
unknown. A special district government may
include, for example, a mosquito abatement
district, utility district, transit authority,
water and sewer board, zoning district, or
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other similar governmental entity that may
operate with administrative and fiscal
independence. This definition is drawn in
part from the U.S. Census Bureau definition 8
for purposes of setting a compliance time
frame for a subset of public entities. It is not
meant to alter the existing definition of
‘‘public entity’’ in § 35.104 in any way. The
Department made one grammatical correction
in this part to remove an extra ‘‘or’’ from the
definition as proposed in the NPRM.9
However, the substance of the definition is
unchanged from the Department’s proposal
in the NPRM.
‘‘Total Population’’
Section 35.200 provides the dates by which
public entities must begin complying with
the technical standard. The compliance dates
are generally based on a public entity’s total
population, as defined in this part. The
Department has added a definition for ‘‘total
population’’ in § 35.104. If a public entity has
a population calculated by the United States
Census Bureau in the most recent decennial
Census, the public entity’s total population
as defined in this part is the population
estimate for that public entity as calculated
by the United States Census Bureau in the
most recent decennial Census. If a public
entity is an independent school district, or an
instrumentality of an independent school
district, the entity’s total population as
defined in this part is the population
estimate for the independent school district
as calculated by the United States Census
Bureau in the most recent Small Area Income
and Poverty Estimates. If a public entity,
other than a special district government or an
independent school district, does not have a
population estimate calculated by the United
States Census Bureau in the most recent
decennial Census, but is an instrumentality
or a commuter authority of one or more State
or local governments that do have such a
population estimate, the entity’s total
population as defined in this part is the
combined decennial Census population
estimates for any State or local governments
of which the public entity is an
instrumentality or commuter authority. The
total population for the National Railroad
Passenger Corporation as defined in this part
is the population estimate for the United
States as calculated by the United States
Census Bureau in the most recent decennial
Census. The terminology used in the
definition of ‘‘total population’’ draws from
the terminology used in the definition of
‘‘public entity’’ in title II of the ADA 10 and
the existing title II regulation,11 and all
public entities covered under title II of the
ADA are covered by subpart H of this part.
This part does not provide a method for
calculating the total population of special
district governments, because § 35.200
provides that all special district governments
have three years following the publication of
the final rule to begin complying with the
8 See U.S. Census Bureau, Special District
Governments, https://www.census.gov/glossary/
?term=Special+district+governments [https://
perma.cc/8V43-KKL9] (last visited Feb. 26, 2024).
9 88 FR 52018.
10 42 U.S.C. 12131(1).
11 Section 35.104.
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technical standard, without reference to their
population.
The regulatory text of this definition has
been revised from the NPRM for clarity. The
regulatory text of this definition previously
provided that ‘‘total population’’ generally
meant the population estimate for a public
entity as calculated by the United States
Census Bureau in the most recent decennial
Census. Because the decennial Census does
not include population estimates for public
entities that are independent school districts,
the regulatory text in the NPRM made clear
that for independent school districts, ‘‘total
population’’ would be calculated by
reference to the population estimates as
calculated by the United States Census
Bureau in the most recent Small Area Income
and Poverty Estimates. In recognition of the
fact that some public entities do not have
population estimates calculated by the
United States Census Bureau, the preamble to
the NPRM stated that if a public entity does
not have a specific Census-defined
population, but belongs to another
jurisdiction that does, the population of the
entity is determined by the population of the
jurisdiction to which the entity belongs.12
Although the preamble included this
clarification, the Department received
feedback that the regulatory text of this
definition did not make clear how to
calculate total population for public entities
that do not have populations calculated by
the United States Census Bureau.
Accordingly, the Department has revised the
regulatory text of the definition for clarity.
The revised regulatory text of this
definition retains the language from the
definition in the NPRM with respect to
public entities that have populations
calculated in the decennial Census and
independent school districts that have
populations calculated in the Small Area
Income and Poverty Estimates. However, the
revised regulatory text of this definition
incorporates the approach described in the
preamble of the NPRM with respect to how
public entities that do not have populations
calculated by the United States Census
Bureau in the most recent decennial Census
can determine their total populations as
defined in this part. As the revised definition
states, if a public entity, other than a special
district government or independent school
district, does not have a population estimate
calculated by the United States Census
Bureau in the most recent decennial Census,
but is an instrumentality or a commuter
authority of one or more State or local
governments that do have such a population
estimate, the total population for the public
entity is determined by reference to the
combined decennial Census population
estimates for any State or local governments
of which the public entity is an
instrumentality or commuter authority. For
example, the total population of a county
library is the population of the county of
which the library is an instrumentality. The
revised definition also makes clear that if a
public entity is an instrumentality of an
independent school district, the
instrumentality’s population is determined
12 88
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by reference to the population estimate for
the independent school district as calculated
in the most recent Small Area Income and
Poverty Estimates. The revised definition
also states that the total population of the
National Railroad Passenger Corporation is
determined by reference to the population
estimate for the United States as calculated
by the United States Census Bureau in the
most recent decennial Census. The revisions
to the definition do not change the scope of
this part or the time frames that public
entities have to comply with subpart H of
this part; they simply provide additional
clarity for public entities on how to
determine which compliance time frame
applies. The Department expects that these
changes will help public entities better
understand the time frame in which they
must begin complying with the technical
standard. Further discussion of this topic,
including discussion of comments, can be
found in the section-by-section analysis of
§ 35.200, under the heading ‘‘Requirements
by Entity Size.’’
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‘‘User Agent’’
The Department has added a definition for
‘‘user agent.’’ The definition exactly matches
the definition of ‘‘user agent’’ in WCAG 2.1.13
WCAG 2.1 includes an accompanying
illustration, which clarifies that the
definition of ‘‘user agent’’ means web
browsers, media players, plug-ins, and other
programs—including assistive technologies—
that help in retrieving, rendering, and
interacting with web content.14
The Department added this definition to
this part to ensure clarity of the term ‘‘user
agent,’’ now that the term appears in the
definition of ‘‘web content.’’ As the
Department explains further in discussing
the definition of ‘‘web content’’ in this
section-by-section analysis, the Department
has more closely aligned the definition of
‘‘web content’’ in this part with the definition
in WCAG 2.1. Because this change
introduced the term ‘‘user agent’’ into the
title II regulation, and the Department does
not believe this is a commonly understood
term, the Department has added the
definition of ‘‘user agent’’ provided in WCAG
2.1 to this part. One commenter suggested
that the Department add this definition in
this part, and the Department also believes
that adding this definition in this part is
consistent with the suggestions of many
commenters who proposed aligning the
definition of ‘‘web content’’ with the
definition in WCAG 2.1, as explained further
in the following section.
‘‘WCAG 2.1’’
The Department is including a definition of
‘‘WCAG 2.1.’’ The term ‘‘WCAG 2.1’’ refers
to the 2018 version of the voluntary
guidelines for web accessibility, known as
the Web Content Accessibility Guidelines 2.1
(‘‘WCAG 2.1’’). W3C, the principal
international organization involved in
developing standards for the web, published
13 See W3C, Web Content Accessibility Guidelines
(WCAG) 2.1 (June 5, 2018), https://www.w3.org/TR/
2018/REC-WCAG21-20180605/ and https://
perma.cc/UB8A-GG2F.
14 Id.
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WCAG 2.1 in June 2018, and it is available
at https://www.w3.org/TR/2018/RECWCAG21-20180605/ and https://perma.cc/
UB8A-GG2F. WCAG 2.1 is discussed in more
detail in the section-by-section analysis of
§ 35.200.
‘‘Web Content’’
Section 35.104 defines ‘‘web content’’ as
the information and sensory experience to be
communicated to the user by means of a user
agent, including code or markup that defines
the content’s structure, presentation, and
interactions. Examples of web content
include text, images, sounds, videos,
controls, animations, and conventional
electronic documents. The first sentence of
the Department’s definition of ‘‘web content’’
is aligned with the definition of ‘‘web
content’’ in WCAG 2.1.15 The second
sentence of the definition gives examples of
some of the different types of information
and experiences available on the web.
However, these examples are intended to
illustrate the definition and not be
exhaustive. The Department also notes that
subpart H of this part covers the accessibility
of public entities’ web content regardless of
whether the web content is viewed on
desktop computers, laptops, smartphones, or
elsewhere.
The Department slightly revised its
definition from the proposed definition in
the NPRM, which was based on the WCAG
2.1 definition but was slightly less technical
and intended to be more easily understood
by the public generally. The Department’s
proposed rule defined ‘‘web content’’ as
information or sensory experience—
including the encoding that defines the
content’s structure, presentation, and
interactions—that is communicated to the
user by a web browser or other software.
Examples of web content include text,
images, sounds, videos, controls, animations,
and conventional electronic documents.16 In
this part, the first sentence of this definition
is revised to provide that web content is the
information and sensory experience to be
communicated to the user by means of a user
agent, including code or markup that defines
the content’s structure, presentation, and
interactions. The sentence is now aligned
with the WCAG 2.1 definition of web content
(sometimes referred to as ‘‘content’’ by
WCAG).17 The Department has also added a
definition of ‘‘user agent’’ in this part, as
explained in the section-by-section analysis.
The Department decided to more closely
align the definition of ‘‘web content’’ in this
15 See W3C, Web Content Accessibility Guidelines
2.1 (June 5, 2018), https://www.w3.org/TR/2018/
REC-WCAG21-20180605/and https://perma.cc/
UB8A-GG2F (see definition of ‘‘content (Web
content)’’). WCAG 2.1 defines ‘‘user agent’’ as ‘‘any
software that retrieves and presents Web content for
users,’’ such as web browsers, media players, plugins, and assistive technologies. See W3C, Web
Content Accessibility Guidelines 2.1 (June 5, 2018),
https://www.w3.org/TR/2018/REC-WCAG2120180605/ and https://perma.cc/UB8A-GG2F (see
definition of ‘‘user agent’’).
16 88 FR 52018.
17 See W3C, Web Content Accessibility Guidelines
2.1 (June 5, 2018), https://www.w3.org/TR/2018/
REC-WCAG21-20180605/ and https://perma.cc/
UB8A-GG2F.
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31343
part with the definition in WCAG 2.1 to
avoid confusion, to ensure consistency in the
application of WCAG 2.1, and to assist
technical experts in implementing subpart H
of this part. Consistent with the suggestion of
several commenters, the Department believes
this approach minimizes possible inadvertent
conflicts between the type of content covered
by the Department’s regulatory text and the
content covered by WCAG 2.1. Further, the
Department believes it is prudent to more
closely align these definitions because the
task of identifying relevant content to be
made accessible will often fall on technical
experts. The Department believes technical
experts will be familiar with the definition of
‘‘web content’’ in WCAG 2.1, and creating a
modified definition will unnecessarily
increase effort by requiring technical experts
to familiarize themselves with a modified
definition. The Department also understands
that there are likely publicly available
accessibility guidance documents and
toolkits on the WCAG 2.1 definition that
could be useful to public entities, and using
a different definition of ‘‘web content’’ could
call into question public entities’ ability to
rely on those tools, which would create
unnecessary work for public entities. To
incorporate this change, the Department
removed language from the proposed rule
addressing the encoding that defines the web
content’s structure, presentation, and
interactions, because the Department
believed the more prudent approach was to
more closely align this definition with the
definition in WCAG 2.1. However, the
Department maintained in its final definition
an additional sentence providing examples of
web content to aid in the public’s
understanding of this definition. This may be
particularly useful for members of the public
without a technical background.
The Department received many comments
supporting the Department’s proposed
definition of ‘‘web content’’ from public
entities, disability advocates, individuals,
and technical and other organizations. Many
of these commenters indicated that the
Department’s definition was sufficiently
generic and familiar to the public. The
Department believes that the definition in
this part aligns with these comments, since
it is intended to mirror the definition in
WCAG 2.1 and cover the same types of
content.
Some commenters raised concerns that the
scope of the definition should be broader,
arguing that the definition should be
extended to include ‘‘closed’’ systems such
as kiosks, printers, and point-of-sale devices.
Another organization mistakenly believed
that the examples listed in the definition of
‘‘web content’’ were meant to be exhaustive.
The Department wishes to clarify that this
list is not intended to be exhaustive. The
Department declines to broaden the
definition of ‘‘web content’’ beyond the
definition in this part because the
Department seeks in its rulemaking to be
responsive to calls from the public for the
Department to provide certainty by adopting
a technical standard State and local
government entities must adhere to for their
web content and mobile apps. The
Department thus is limiting its rulemaking
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effort to web content and mobile apps.
However, the Department notes that State
and local government entities have existing
accessibility obligations with respect to
services, programs, or activities offered
through other types of technology under title
II of the Americans with Disabilities Act
(‘‘ADA’’) or other laws.18 For example,
‘‘closed’’ systems 19 may need to be made
accessible in accordance with the existing
title II regulation, as public entities have
ongoing responsibilities to ensure effective
communication, among other requirements.
Some commenters also suggested that the
Department narrow the definition of ‘‘web
content.’’ A few of these comments came
from trade groups representing public
accommodations, and they argued that the
scope of the proposed definition would
extend to content the public entity cannot
control or is unable to make accessible due
to other challenges. These commenters also
argued that the costs of making content
accessible would be extremely high for the
range of content covered by the definition of
‘‘web content.’’ The Department believes the
framework in this part appropriately balances
the considerations implicated by this
definition. Public entities can avail
themselves of several exceptions that are
intended to reduce the costs of making
content accessible in some cases (such as the
preexisting social media posts exception in
§ 35.201(e)), and to address instances where
public entities truly do not have control over
content (such as the third-party-posted
content exception in § 35.201(c)). Further,
public entities will be able to rely on the
fundamental alteration and undue burdens
limitations set out in § 35.204 where they can
satisfy the requirements of those limitations,
and public entities may also be able to use
conforming alternate versions under § 35.202
where it is not possible to make web content
directly accessible due to technical or legal
limitations. The Department believes this
approach appropriately balances the costs of
compliance with the significant benefits to
individuals with disabilities of being able to
access the services, programs, and activities
of their State and local government entities.
Some disability advocacy groups suggested
that the Department modify the definition
slightly, such as by providing for
‘‘information, sensory or otherwise’’ in lieu
of ‘‘information and sensory experience.’’
The Department believes the prudent
approach is to closely mirror the definition
of ‘‘web content’’ in WCAG 2.1 to avoid
confusion that could ensue from other
differences between the two definitions.
While the Department appreciates that there
may be questions about the application of the
definition to specific factual contexts, the
Department believes the definition in WCAG
2.1 is sufficiently clear. The Department can
provide further guidance on the application
of this definition as needed.
18 See
§§ 35.130(b)(1)(ii) and (b)(7) and 35.160.
closed system, or ‘‘closed functionality,’’
means that users cannot attach assistive technology
to the system to make the content accessible, such
as with a travel kiosk. See W3C, WCAG2ICT
Overview, https://www.w3.org/WAI/standardsguidelines/wcag/non-web-ict/ [https://perma.cc/
XRL6-6Q9Y] (Feb. 2, 2024).
19 A
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Some commenters argued that the nonexhaustive list of examples of web content in
this part would include web content that
would not be considered web content under
WCAG 2.1. In particular, some commenters
noted that conventional electronic
documents are not web content under WCAG
2.1 because they are not opened or presented
through a user agent. Those commenters said
that the Department’s definition of ‘‘web
content’’ should not include files such as
word processor documents, presentation
documents, and spreadsheets, even if they
are downloaded from the web. The
commenters further suggested that this part
should split consideration of electronic
document files from web content, similar to
the approach they stated is used in the
section 508 standards.20 The Department also
reviewed suggestions from commenters that
the Department rely on WCAG guidance
explaining how to apply WCAG to non-web
information and communications
technologies 21 and the ISO 14289–1 (‘‘PDF/
UA–1’’) 22 standard related to PDF files.
However, other commenters argued that
when electronic documents are viewed in the
browser window, they generally are
considered web content and should thus be
held to the same standard as other types of
web content. Those commenters agreed with
the Department’s decision to include
conventional electronic documents within
the definition of ‘‘web content,’’ particularly
when the version posted is not open for
editing by the public.
The Department has considered
commenters’ views and determined that
conventional electronic documents should
still be considered web content for purposes
of this part. The Department has found that
public entities frequently provide their
services, programs, or activities using
conventional electronic documents, and the
Department believes this approach will
enhance those documents’ accessibility,
improving access for individuals with
disabilities. The Department understands
commenters’ concerns to mean that, in
applying WCAG 2.1 to conventional
electronic documents, not all success criteria
may be applicable directly as written.
Although the Department understands that
some WCAG 2.1 Level AA success criteria
20 See 29 U.S.C. 794d. A discussion of the section
508 standards is included later in the section-bysection analysis, in ‘‘WCAG 2.0 and Section 508 of
the Rehabilitation Act.’’
21 W3C, WCAG2ICT Overview, https://
www.w3.org/WAI/standards-guidelines/wcag/nonweb-ict/ [https://perma.cc/XRL6-6Q9Y] (Feb. 2,
2024).
22 International Organization for Standardization,
ISO 14289–1:2014; Document management
applications; Electronic document file format
enhancement for accessibility; Part 1: Use of ISO
32000–1 (PDF/UA–1) (Dec. 2014), https://
www.iso.org/standard/64599.html [https://
perma.cc/S53A-Q3Y2]. One commenter also
referred to PDF/UA–2; however, the Department’s
understanding is that PDF/UA–2 is still under
development. International Organization for
Standardization, ISO 14289–2; Document
management applications; Electronic document file
format enhancement for accessibility; Part 2: Use of
ISO 32000–2 (PDF/UA–2), https://www.iso.org/
standard/82278.html [https://perma.cc/3W5L-UJ7J].
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may not apply as written to conventional
electronic documents,23 when public entities
provide or make available web content and
content in mobile apps, public entities
generally must ensure conformance to the
WCAG 2.1 Level AA success criteria to the
extent those criteria can be applied. In
determining how to make conventional
electronic documents conform to WCAG 2.1
Level AA, public entities may find it helpful
to consult W3C’s guidance on non-web
information and communications technology,
which explains how the WCAG success
criteria can be applied to conventional
electronic documents. The Department
believes the compliance dates discussed in
§ 35.200(b) will provide public entities
sufficient time to understand how WCAG 2.1
Level AA applies to their conventional
electronic documents. The Department will
continue to monitor developments in the
accessibility of conventional electronic
documents and issue further guidance as
appropriate.
Finally, several commenters asked whether
this definition would cover internal, nonpublic applications, such as web content
used solely by employees. The Department
reiterates that subpart H of this part includes
requirements for the web content and mobile
apps provided or made available by public
entities within the scope of title II. While
subpart H is not promulgated under title I of
the ADA, it is important to note that
compliance with subpart H will not relieve
title II entities of their distinct employmentrelated obligations under title I of the ADA,
which could include, for example,
accommodations for a web developer with a
disability working for a public entity.
Subpart H—Web and Mobile Accessibility
The Department is creating a new subpart
in its title II regulation. Subpart H of this part
addresses the accessibility of public entities’
web content and mobile apps.
Section 35.200 Requirements for Web and
Mobile Accessibility
General
Section 35.200 sets forth specific
requirements for the accessibility of web
content and mobile apps of public entities.
Section 35.200(a) requires a public entity to
ensure that the following are readily
accessible to and usable by individuals with
disabilities: (1) web content that a public
entity provides or makes available, directly
23 W3C explains in its guidance on non-web
information and communications technology that
‘‘[w]hile WCAG 2.2 was designed to be technologyneutral, it assumes the presence of a ‘user agent’
such as a browser, media player, or assistive
technology as a means to access web content.
Therefore, the application of WCAG 2.2 to
documents and software in non-web contexts
require[s] some interpretation in order to determine
how the intent of each WCAG 2.2 success criterion
could be met in these different contexts of use.’’
W3C, Guidance on Applying WCAG 2.2 to Non-Web
Information and Communications Technologies
(WCAG2ICT): Group Draft Note (Aug. 15, 2023),
https://www.w3.org/TR/wcag2ict-22/ [https://
perma.cc/2PYA-4RFH]. While this quotation
addresses WCAG 2.2, the beginning of the guidance
notes that ‘‘the current draft includes guidance for
WCAG 2.1 success criteria.’’ Id.
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or through contractual, licensing, or other
arrangements; and (2) mobile apps that a
public entity provides or makes available,
directly or through contractual, licensing, or
other arrangements. As detailed in this
section, the remainder of § 35.200 sets forth
the specific standards that public entities are
required to meet to make their web content
and mobile apps accessible and the timelines
for compliance.
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Web Content and Mobile Apps That Public
Entities Provide or Make Available
Section 35.200(a) identifies the scope of
content covered by subpart H of this part.
Section 35.200(a)(1) and (2) applies to web
content and mobile apps that a public entity
provides or makes available. The Department
intends the scope of § 35.200 to be consistent
with the ‘‘Application’’ section of the
existing title II regulation at § 35.102, which
states that this part applies to all services,
programs, and activities provided or made
available by public entities. The Department
therefore made minor changes to the
language of § 35.200(a)(1) and (2) to make the
section more consistent with § 35.102. In the
NPRM, § 35.200(a)(1) and (2) applied to web
content and mobile apps that a public entity
makes available to members of the public or
uses to offer services, programs, or activities
to members of the public.24 The Department
revised § 35.200(a)(1) and (2) to apply to web
content and mobile apps that a public entity
provides or makes available. The Department
also made corresponding revisions to the
language of § 35.200(b)(1) and (2). The
Department expects that public entities will
be familiar with the revised language used in
§ 35.200(a) because it is similar to the
language used in § 35.102, and that such
familiarity and consistency will result in less
confusion and more predictable access for
individuals with disabilities to the web
content and mobile apps of public entities.
The Department notes that the revised
language does not change or limit the
coverage of subpart H as compared to the
NPRM. Both the revised language and the
NPRM are consistent with the broad coverage
of § 35.102.
Contractual, Licensing, and Other
Arrangements
The general requirements in subpart H of
this part apply to web content or mobile apps
that a public entity provides or makes
available directly, as well as those the public
entity provides or makes available ‘‘through
contractual, licensing, or other
arrangements.’’ The Department expects that
the phrase ‘‘directly or through contractual,
licensing, or other arrangements’’ will be
familiar to public entities because it comes
from existing regulatory language in title II of
the ADA. The section on general prohibitions
against discrimination in the existing title II
regulation says that a public entity, in
providing any aid, benefit, or service, may
not, directly or through contractual,
licensing, or other arrangements, on the basis
of disability engage in various forms of
discrimination.25 The Department
24 88
FR 52018.
35.130(b)(1) and (3). See also
§ 35.152(a) (describing requirements for jails,
25 Section
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intentionally used the same phrasing in
subpart H because here too, where public
entities act through third parties using
contractual, licensing, or other arrangements,
they are not relieved of their obligations
under subpart H. For example, when public
educational institutions arrange for third
parties to post educational content on their
behalf, public entities will still be
responsible for the accessibility of that
content under the ADA.
Further, the Department emphasizes that
the phrase ‘‘provides or makes available’’ in
§ 35.200 is not intended to mean that
§ 35.200 only applies when the public entity
creates or owns the web content or mobile
app. The plain meaning of ‘‘make available’’
includes situations where a public entity
relies on a third party to operate or furnish
content. Section 35.200 means that public
entities provide or make available web
content and mobile apps even where public
entities do not design or own the web content
or mobile app, if there is a contractual,
licensing, or other arrangement through
which the public entity uses the web content
or mobile app to provide a service, program,
or activity. For example, even when a city
does not design, create, or own a mobile app
allowing the public to pay for public parking,
when a contractual, licensing, or other
arrangement exists between the city and the
mobile app enabling the public to use the
mobile app to pay for parking in the city, the
mobile app is covered under § 35.200. This
is because the public entity has contracted
with the mobile app to provide access to the
public entity’s service, program, or activity
(i.e., public parking) using a mobile app. The
Department believes this approach will be
familiar to public entities, as it is consistent
with the existing framework in title II of the
ADA.26
The Department received many public
comments in response to the NPRM
expressing confusion about the extent to
which content created by third parties on
behalf of public entities must be made
accessible. Many commenters pointed out
that public entities frequently enter into
contracts with vendors or other third parties
to produce web content and mobile apps,
such as for websites and apps used to pay
fines and parking fees. Commenters were
particularly concerned because the NPRM
contained exceptions for third-party content,
which they thought could indicate that the
Department did not intend to cover any
content created by third parties even when it
was created on behalf of public entities.
Commenters urged the Department to make
clear in regulatory text that content created
or provided by third-party entities is still
covered by this part where those third parties
are acting on behalf of a public entity.
The Department agrees with these
commenters’ concerns, so the Department
has modified the language in subpart H of
this part to make clear that the general
requirements for web content and mobile app
accessibility apply when the public entity
provides or makes available web content or
detention and correctional facilities, and
community correctional facilities).
26 See § 35.130(b)(1) and (3).
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31345
mobile apps directly or through contractual,
licensing, or other arrangements. The
Department inserted this language in
§ 35.200(a)(1) and (2) and (b)(1) and (2). The
Department notes that this modification does
not change the coverage of § 35.200 from the
NPRM. The Department clarified in the
NPRM that throughout the proposal, a public
entity’s ‘‘website’’ is intended to include not
only the websites hosted by the public entity,
but also websites operated on behalf of a
public entity by a third party. For example,
public entities sometimes use vendors to
create and host their web content. The
Department clarified that such content would
also be covered by the proposed rule.27 The
language the Department added to the
general requirements provisions in
§ 35.200(a)(1) and (2) and (b)(1) and (2) does
not change the meaning of the provisions, but
rather ensures clarity about public entities’
obligations when they are acting through a
third party, such as when they contract with
a vendor.
Many commenters stated their concern that
public entities lack control over third-party
content, even where they contract with third
parties to provide that content. These
commenters, generally from public entities
and trade groups representing public
accommodations, argued that seeking to
obtain accessible third-party content
provided on behalf of public entities would
be challenging. Some of these commenters
said that in theory this type of content could
be controlled by procurement, but that this
has not been realized in practice. While the
Department is sympathetic to these concerns,
the Department also received many
comments from disability advocates and
individuals with disabilities pointing out the
crucial nature of services provided by third
parties on behalf of public entities. For
example, some disability advocates argued
that State and local government entities
increasingly rely on third parties to provide
services such as the mapping of zoning areas
and city council districts, fine payment
systems, applications for reserving and
paying for public parking, websites to search
for available public housing, and many other
examples. The Department believes
individuals with disabilities should not be
excluded from these government services
because the services are inaccessible and are
being provided by third parties on behalf of
a public entity, rather than being provided
directly by the public entity. Indeed, public
entities have a responsibility to comply with
their ADA obligations even when their
services, programs, or activities are being
offered through contractors. Further, while
the Department understands the concerns
raised by commenters that current market
options make it challenging for public
entities to procure accessible services, the
Department expects that options for
accessible third-party services will grow in
response to subpart H of this part. The
Department believes that more accessible
options will be readily available by the time
public entities are required to comply with
subpart H, which will make it less difficult
for public entities to procure accessible
27 88
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services from contractors. The Department
also notes that public entities will be able to
rely on the fundamental alteration and undue
burdens limitations in this part in § 35.204
where they can satisfy the requirements of
that provision.
Further, the Department believes that when
public entities engage in contractual,
licensing, or other arrangements with third
parties to provide or make available web
content and mobile apps, public entities can
choose to work with providers who can
ensure accessibility, and public entities can
also include contract stipulations that ensure
accessibility in third-party services. This is
consistent with the existing obligations
public entities face in other title II contexts
where they choose to contract, license, or
otherwise arrange with third parties to
provide services, programs, or activities. The
Department acknowledges that some
commenters argued that they face limited
existing options in procurement for
accessible third-party services. However,
where such circumstances warrant, public
entities can rely on the undue burdens
provision when they can satisfy its
requirements. In addition, the Department
expects that options for procuring accessible
third-party services will grow in response to
its rulemaking.
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Background on WCAG
Since 1994, W3C has been the principal
international organization involved in
developing protocols and guidelines for the
web.28 W3C develops a variety of voluntary
technical standards and guidelines, including
ones relating to privacy, internationalization
of technology, and—relevant here—
accessibility. W3C’s Web Accessibility
Initiative (‘‘WAI’’) has developed voluntary
guidelines for web accessibility, known as
WCAG, to help web developers create web
content that is accessible to individuals with
disabilities.29
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-WCAG2020081211/ [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
28 W3C, About Us, https://www.w3.org/about/
[https://perma.cc/TQ2W-T377].
29 The Department received one comment arguing
that the process by which WCAG is developed is
not equitable or inclusive of members of the
disability community. The Department received
another comment commending the Department for
adopting WCAG as the technical standard and
noting that WCAG is developed through an open,
transparent, multi-stakeholder consensus process.
The Department carefully considered these
comments and concluded that it is appropriate to
adopt a consensus standard promulgated by W3C
with input from various stakeholders, which is also
consistent with the NTTAA. Information from W3C
about its process for developing standards is
available at W3C, Web Accessibility Initiative, How
WAI Develops Accessibility Standards Through the
W3C Process: Milestones and Opportunities To
Contribute (Sept. 2006), https://www.w3.org/WAI/
standards-guidelines/w3c-process/ [https://
perma.cc/3BED-RCJP] (Nov. 2, 2020).
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17:05 Apr 23, 2024
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(‘‘IEC’’) in October 2012.30 WCAG 2.1 was
published in June 2018, and is available at
https://www.w3.org/TR/2018/REC-WCAG2120180605/ and https://perma.cc/UB8AGG2F.31 WCAG 2.1 is built on and is
backwards compatible with WCAG 2.0.32 In
fact, 38 of the 50 Level A and AA success
criteria in WCAG 2.1 are also included in
WCAG 2.0.33
WCAG 2.1 contains four principles that
provide the foundation for web accessibility:
the web content must be perceivable,
operable, understandable, and robust.34
Testable success criteria (i.e., requirements
for web accessibility that are measurable) are
provided ‘‘to be used where requirements
and conformance testing are necessary such
as in design specification, purchasing,
regulation and contractual agreements.’’ 35
Thus, WCAG 2.1 contemplates establishing
testable success criteria that could be used in
regulatory efforts such as this one.
Technical Standard—WCAG 2.1 Level AA
Section 35.200 requires that public entities’
web content and mobile apps conform to
WCAG 2.1 Level AA unless compliance
would result in a fundamental alteration or
undue financial and administrative burdens.
As previously mentioned, WCAG 2.1 was
published in June 2018 and is available at
https://www.w3.org/TR/2018/REC-WCAG2120180605/ and https://perma.cc/UB8AGG2F. To the extent there are differences
between WCAG 2.1 Level AA and the
standards articulated in this part, the
standards articulated in this part prevail.
WCAG 2.1 Level AA is not restated in full
in this part but is instead incorporated by
reference.
In the NPRM, the Department solicited
feedback on the appropriate technical
standard for accessibility for public entities’
web content and mobile apps. The
Department received many public comments
from a variety of interested parties in
response. After consideration of the public
comments and after its independent
assessment, the Department determined that
WCAG 2.1 Level AA is the appropriate
technical standard for accessibility to adopt
in subpart H of this part. WCAG 2.1 Level AA
30 W3C, Web Content Accessibility Guidelines 2.0
Approved as ISO/IEC International Standard (Oct.
15, 2012), https://www.w3.org/press-releases/2012/
wcag2pas/ [https://perma.cc/JQ39-HGKQ].
31 The WAI also published some revisions to
WCAG 2.1 on September 21, 2023. W3C, Web
Content Accessibility Guidelines (WCAG) 2.1 (Sept.
21, 2023), https://www.w3.org/TR/WCAG21/
[https://perma.cc/4VF7-NF5F]; see infra note 47.
The WAI also published a working draft of WCAG
3.0 in December 2021. W3C, W3C Accessibility
Guidelines (WCAG) 3.0, https://www.w3.org/TR/
wcag-3.0/ (July 24, 2023) [https://perma.cc/7FPQEEJ7].
32 W3C, Web Content Accessibility Guidelines
(WCAG) 2.1, 0.5 Comparison with WCAG 2.0 (June
5, 2018), https://www.w3.org/TR/2018/RECWCAG21-20180605/#comparison-with-wcag-2-0
[https://perma.cc/H76F-6L27].
33 See id.
34 See W3C, Web Content Accessibility Guidelines
(WCAG) 2.1, WCAG 2 Layers of Guidance (Sept. 21,
2023), https://www.w3.org/TR/WCAG21/#wcag-2layers-of-guidance [https://perma.cc/5PDG-ZTJE].
35 Id. (emphasis added).
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includes success criteria that are especially
helpful for people with disabilities using
mobile devices, people with low vision, and
people with cognitive or learning
disabilities.36 Support for WCAG 2.1 Level
AA as the appropriate technical standard
came from a variety of commenters.
Commenters supporting the adoption of
WCAG 2.1 Level AA noted that is a widely
used and accepted industry standard. At least
one such commenter noted that requiring
conformance to WCAG 2.1 Level AA would
result in a significant step forward in
ensuring access for individuals with
disabilities to State and local government
entities’ web content and mobile apps.
Commenters noted that WCAG 2.1 Level AA
has been implemented, tested, and shown to
be a sound and comprehensive threshold for
public agencies. In addition, because WCAG
2.1 Level AA was published in 2018, web
developers and public entities have had time
to familiarize themselves with it. The WCAG
standards were designed to be ‘‘technology
neutral.’’ 37 This means that they are
designed to be broadly applicable to current
and future web technologies.38 Thus, WCAG
2.1 also allows web and mobile app
developers flexibility and potential for
innovation.
The Department expects that adopting
WCAG 2.1 Level AA as the technical
standard will have benefits that are important
to ensuring access for individuals with
disabilities to public entities’ services,
programs, and activities. For example, WCAG
2.1 Level AA requires that text be formatted
so that it is easier to read when magnified.39
This is important, for example, for people
with low vision who use magnifying tools.
Without the formatting that WCAG 2.1 Level
AA requires, a person magnifying the text
might find reading the text disorienting
because they might have to scroll
horizontally on every line.40
WCAG 2.1 Level AA also includes success
criteria addressing the accessibility of mobile
apps or web content viewed on a mobile
device. For example, WCAG 2.1 Level AA
Success Criterion 1.3.4 requires that page
orientation (i.e., portrait or landscape) not be
restricted to just one orientation, unless a
specific display orientation is essential.41
36 W3C, Web Content Accessibility Guidelines
(WCAG) 2.1, 0.5 Comparison with WCAG 2.0 (June
5, 2018), https://www.w3.org/TR/2018/RECWCAG21-20180605/#comparison-with-wcag-2-0
[https://perma.cc/H76F-6L27].
37 W3C, Introduction to Understanding WCAG,
https://www.w3.org/WAI/WCAG21/Understanding/
intro [https://perma.cc/XB3Y-QKVU] (June 20,
2023).
38 See W3C, Understanding Techniques for
WCAG Success Criteria, https://www.w3.org/WAI/
WCAG21/Understanding/understanding-techniques
[https://perma.cc/AMT4-XAAL] (June 20, 2023).
39 See W3C, Web Content Accessibility Guidelines
(WCAG) 2.1, Success Criterion 1.4.10 Reflow (June
5, 2018), https://www.w3.org/TR/2018/RECWCAG21-20180605/#reflow [https://perma.cc/
TU9U-C8K2].
40 See id.
41 See W3C, Web Content Accessibility Guidelines
(WCAG) 2.1, Success Criterion 1.3.4 Orientation
(June 5, 2018), https://www.w3.org/TR/2018/RECWCAG21-20180605/#orientation [https://perma.cc/
M2YG-LB9V].
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This feature is important, for example, for
someone who uses a wheelchair with a tablet
attached to it such that the tablet cannot be
rotated.42 If web content or mobile apps only
work in one orientation, they will not always
work for this individual depending on how
the tablet is oriented, which could render
that content or app unusable for the person.43
Another WCAG 2.1 success criterion
requires, in part, that if a function in an app
can be operated by motion—for example,
shaking the device to undo typing—that there
be an option to turn off that motion
sensitivity.44 This could be important, for
example, for someone who has tremors, so
that they do not accidentally undo their
typing.45
Such accessibility features are critical for
individuals with disabilities to have equal
access to their State or local government
entity’s services, programs, and activities.
This is particularly true given that using
mobile devices to access government services
is commonplace. For example, one source
notes that mobile traffic generally accounts
for 58.21 percent of all internet usage.46 In
addition, WCAG 2.1 Level AA’s
incorporation of mobile-related criteria is
important because of public entities’
increasing use of mobile apps in offering
their services, programs, or activities. Public
entities are using mobile apps to offer a range
of critical government services—from
providing traffic information, to scheduling
trash pickup, to making vaccination
appointments.
The Department also understands that
public entities are likely already familiar
with WCAG 2.1 Level AA or will be able to
become familiar quickly. This is because
WCAG 2.1 Level AA has been available since
2018,47 and it builds upon WCAG 2.0, which
42 W3C, What’s New in WCAG 2.1, https://
www.w3.org/WAI/standards-guidelines/wcag/newin-21/ [https://perma.cc/S7VS-J6E4] (Oct. 5, 2023).
43 See id.
44 See W3C, Web Content Accessibility Guidelines
(WCAG) 2.1, Success Criterion 2.5.4 Motion
Actuation (June 5, 2018), https://www.w3.org/TR/
2018/REC-WCAG21-20180605/#motion-actuation
[https://perma.cc/D3PS-32NV].
45 See W3C, What’s New in WCAG 2.1, https://
www.w3.org/WAI/standards-guidelines/wcag/newin-21/ [https://perma.cc/W8HK-Z5QK] (Oct. 5,
2023).
46 Andrew Buck, MobiLoud, What Percentage of
internet Traffic is Mobile?, https://
www.mobiloud.com/blog/what-percentage-ofinternet-traffic-is-mobile#what-percentage-ofinternet-traffic-comes-on-mobile-devices [https://
perma.cc/2FK6-UDD5] (Feb. 7, 2024).
47 The WAI published some revisions to WCAG
2.1 on September 21, 2023. See W3C, Web Content
Accessibility Guidelines (WCAG) 2.1 (Sept. 21,
2023), https://www.w3.org/TR/WCAG21/ [https://
perma.cc/4VF7-NF5F]. However, for the reasons
discussed in this section, subpart H of this part
requires conformance to the version of WCAG 2.1
that was published in 2018. W3C, Web Content
Accessibility Guidelines 2.1 (June 5, 2018), https://
www.w3.org/TR/2018/REC-WCAG21-20180605/ and
https://perma.cc/UB8A-GG2F. The Department
believes that public entities have not had sufficient
time to become familiar with the 2023 version.
Public entities and others also may not have had an
adequate opportunity to comment on whether the
Department should adopt the 2023 version, which
was published shortly before the comment period
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has been in existence since 2008 and has
been established for years as a benchmark for
accessibility. According to the Department’s
research, WCAG 2.1 is already being
increasingly used by members of the public
and State and local government entities. At
least ten States now use, or aim to use,
WCAG 2.1 as a standard for their websites,
indicating increased familiarity with and use
of the standard. In fact, as commenters also
noted, the Department recently included
WCAG 2.1 in several settlement agreements
with covered entities addressing inaccessible
websites.48
The Department expects, and heard in
public comments, that web developers and
professionals who work for or with public
entities are likely to be familiar with WCAG
on the NPRM closed on October 3, 2023. One recent
revision to WCAG 2.1 relates to Success Criterion
4.1.1, which addresses parsing. W3C has described
Success Criterion 4.1.1 as ‘‘obsolete’’ and stated that
it ‘‘is no longer needed for accessibility.’’ W3C,
WCAG 2 FAQ, https://www.w3.org/WAI/standardsguidelines/wcag/faq/#parsing411 [https://perma.cc/
24FK-V8LS] (Oct. 5, 2023). According to the 2023
version of WCAG, Success Criterion 4.1.1 ‘‘should
be considered as always satisfied for any content
using HTML or XML.’’ W3C, Web Content
Accessibility Guidelines (WCAG) 2.1 (Sept. 21,
2023), https://www.w3.org/TR/WCAG21/ [https://
perma.cc/4VF7-NF5F]. The Department believes
that either adopting this note from the 2023 version
of WCAG or not requiring conformance to Success
Criterion 4.1.1 is likely to create significant
confusion. And although Success Criterion 4.1.1
has been removed from WCAG 2.2, the Department
has decided not to adopt WCAG 2.2 for the reasons
described herein. W3C, WCAG 2 FAQ, https://
www.w3.org/WAI/standards-guidelines/wcag/faq/
#parsing411 [https://perma.cc/45DS-RRYS] (Oct. 5,
2023). Therefore, conformance to Success Criterion
4.1.1 is still required by subpart H of this part.
Public entities that do not conform to Success
Criterion 4.1.1 would nonetheless be able to rely on
§ 35.205 to satisfy their obligations under § 35.200
if the failure to conform to Success Criterion 4.1.1
would not affect the ability of individuals with
disabilities to use the public entity’s web content
or mobile app in the manner described in that
section. The Department expects that this provision
will help public entities avoid any unnecessary
burden that might be imposed by Success Criterion
4.1.1.
48 See, e.g., Settlement Agreement Under the
Americans with Disabilities Act Between the
United States of America and CVS Pharmacy, Inc.
(Apr. 11, 2022), https://www.ada.gov/cvs_sa.pdf
[https://perma.cc/H5KZ-4VVF]; Settlement
Agreement Under the Americans with Disabilities
Act Between the United States of America and
Meijer, Inc. (Feb. 2, 2022), https://www.ada.gov/
meijer_sa.pdf [https://perma.cc/5FGD-FK42];
Settlement Agreement Under the Americans with
Disabilities Act Between the United States of
America and the Kroger Co. (Jan. 28, 2022), https://
www.ada.gov/kroger_co_sa.pdf [https://perma.cc/
6ASX-U7FQ]; Settlement Agreement Between the
United States of America and the ChampaignUrbana Mass Transit District (Dec. 14, 2021),
https://www.justice.gov/d9/case-documents/
attachments/2021/12/14/champaign-urbana_sa.pdf
[https://perma.cc/66XY-QGA8]; Settlement
Agreement Under the Americans with Disabilities
Act Between the United States of America and HyVee, Inc. (Dec. 1, 2021), https://www.ada.gov/hyvee_sa.pdf [https://perma.cc/GFY6-BJNE];
Settlement Agreement Under the Americans with
Disabilities Act Between the United States of
America and Rite Aid Corp. (Nov. 1, 2021), https://
www.ada.gov/rite_aid_sa.pdf [https://perma.cc/
4HBF-RBK2].
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2.1 Level AA. And the Department believes
that if public entities and associated web
developers are not already familiar with
WCAG 2.1 Level AA, they are at least likely
to be familiar with WCAG 2.0 and will be
able to become acquainted quickly with
WCAG 2.1’s 12 additional Level A and AA
success criteria. The Department also
believes that resources, like trainings and
checklists, exist to help public entities
implement or understand how to implement
not only WCAG 2.0 Level AA, but also
WCAG 2.1 Level AA.49 Additionally, public
entities will have two or three years,
depending on population size, to come into
compliance with subpart H of this part.
Therefore, public entities and web
professionals who are not already familiar
with WCAG 2.1 will have time to familiarize
themselves and plan to ensure that they will
be in compliance with the rule when
required.
Alternative Approaches Considered
WCAG 2.2
Commenters suggested that the Department
adopt WCAG 2.2 as the technical standard.
WCAG 2.2 was published as a candidate
recommendation—a prefinalization stage—in
May 2023, and was published in final form
on October 5, 2023, which was after the
NPRM associated with the final rule was
published and after the comment period
closed.50 Commenters who supported the
adoption of WCAG 2.2 noted that it was
likely to be finalized before the final rule
would be published. All of the WCAG 2.0
and WCAG 2.1 success criteria except for one
are included in WCAG 2.2.51 WCAG 2.2 also
includes six additional Level A and AA
success criteria beyond those included in
WCAG 2.1.52 Commenters supporting the
adoption of WCAG 2.2 noted that WCAG
2.2’s additional success criteria are important
for ensuring accessibility; for example,
WCAG 2.2 includes additional criteria that
are important for people with cognitive
disabilities or for those accessing content via
mobile apps. Like WCAG 2.1, WCAG 2.2’s
additional success criteria offer particular
benefits for individuals with low vision,
limited manual dexterity, and cognitive
disabilities. For example, Success Criterion
3.3.8, which is a new criterion under WCAG
2.2, improves access for people with
cognitive disabilities by limiting the use of
cognitive function tests, like solving puzzles,
in authentication processes.53 Some
commenters also suggested that the few
additional criteria in WCAG 2.2 would not
pose a substantial burden for web developers,
who are likely already familiar with WCAG
2.1.
49 See, e.g., W3C, Tutorials, https://www.w3.org/
WAI/tutorials/ [https://perma.cc/SW5E-WWXV]
(Feb. 16, 2023).
50 W3C, WCAG 2 Overview, https://www.w3.org/
WAI/standards-guidelines/wcag/ [https://perma.cc/
RQS2-P7JC] (Oct. 5, 2023).
51 W3C, What’s New in WCAG 2.2, https://
www.w3.org/WAI/standards-guidelines/wcag/newin-22/ [https://perma.cc/GDM3-A6SE] (Oct. 5,
2023).
52 Id.
53 Id.
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Some commenters suggested that WCAG
2.1 would become outdated once WCAG 2.2
was finalized. And because WCAG 2.2 was
adopted more recently than WCAG 2.1, some
commenters noted that the adoption of
WCAG 2.2 would be more likely to help
subpart H of this part keep pace with changes
in technology. The Department understands
and appreciates the concerns commenters
raised.
The Department believes that adopting
WCAG 2.1 as the technical standard rather
than WCAG 2.2 is the most prudent approach
at this time. W3C, while recommending the
use of the most recent recommended
standard, has made clear that WCAG 2.2 does
not ‘‘deprecate or supersede’’ WCAG 2.1 and
has stated that WCAG 2.1 is still an existing
standard.54 The Department recognizes that
WCAG 2.2 is a newer standard, but in
crafting subpart H of this part the Department
sought to balance benefits for individuals
with disabilities with feasibility for public
entities making their content accessible in
compliance with subpart H. Because WCAG
2.2 has been adopted so recently, web
professionals have had less time to become
familiar with the additional success criteria
that have been incorporated in WCAG 2.2.
The Department believes there will be fewer
resources and less guidance available to web
professionals and public entities on the new
success criteria in WCAG 2.2. Additionally,
the Department appreciates the concerns
expressed by at least one commenter with
adopting any standard that was not finalized
before the NPRM’s comment period—as was
the case with WCAG 2.2—because interested
parties would not have had an opportunity
to understand and comment on the finalized
standard.
Given the benefits of WCAG 2.2
highlighted by commenters, some public
entities might choose to implement WCAG
2.2 to provide an even more accessible
experience for individuals with disabilities
and to increase customer service satisfaction.
The Department notes that subpart H of this
part provides for equivalent facilitation in
§ 35.203, meaning public entities could
choose to comply with subpart H by
conforming their web content to WCAG 2.2
Level AA because WCAG 2.2 Level AA
provides substantially equivalent or greater
accessibility and usability as compared to
WCAG 2.1 Level AA. This would be
sufficient to meet the standard for equivalent
facilitation in § 35.203, which is discussed in
more detail later in the section-by-section
analysis.
WCAG 2.0 and Section 508 of the
Rehabilitation Act
Alternatively, the Department considered
adopting WCAG 2.0. This change was
suggested by the Small Business
Administration, which argued that public
entities should not have to comply with a
more rigorous standard for online
54 W3C, WCAG 2 Overview, https://www.w3.org/
WAI/standards-guidelines/wcag/#:∼:text=
WCAG%202.0%2C%20WCAG%202.1%2C%20and
%20WCAG%202.2%20are%20all%20
existing,most%20recent%20version
%20of%20WCAG [https://perma.cc/V5ZC-BF8Z]
(Oct. 5, 2023).
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accessibility than the Federal Government,
which is required to conform to WCAG 2.0
under section 508 of the Rehabilitation Act.
In 2017, when the Architectural and
Transportation Barriers Compliance Board
(‘‘Access Board’’) adopted WCAG 2.0 as the
technical standard for the Federal
Government’s web content under section
508, WCAG 2.1 had not been finalized.55
And although WCAG 2.0 is the standard
adopted by the Department of Transportation
in its regulations implementing the Air
Carrier Access Act, which covers airlines’
websites and kiosks,56 those regulations—
like the section 508 rule—were promulgated
before WCAG 2.1 was published.
The Department believes that adopting
WCAG 2.1 as the technical standard for
subpart H of this part is more appropriate
than adopting WCAG 2.0. WCAG 2.1
provides for important accessibility features
that are not included in WCAG 2.0, and an
increasing number of governmental entities
are using WCAG 2.1. A number of countries
that have adopted WCAG 2.0 as their
standard are now making efforts to move or
have moved to WCAG 2.1.57 In countries that
are part of the European Union, public sector
websites and mobile apps generally must
meet a technical standard that requires
conformance to the WCAG 2.1 success
criteria.58 And WCAG 2.0 is likely to become
outdated or less relevant more quickly than
WCAG 2.1. As discussed previously in this
appendix, WCAG 2.2 was recently published
and includes even more success criteria for
accessibility.
The Department expects that the wide
usage of WCAG 2.0 lays a solid foundation
for public entities to become familiar with
and implement WCAG 2.1’s additional Level
A and AA criteria. According to the
Department’s research, dozens of States
either use or strive to use WCAG 2.0 or
greater—either on their own or by way of
implementing the section 508 technical
standards—for at least some of their web
content. It appears that at least ten States—
55 See Information and Communication
Technology (ICT) Standards and Guidelines, 82 FR
5790, 5791 (Jan. 18, 2017); W3C, Web Content
Accessibility Guidelines (WCAG) 2.1 (June 5, 2018),
https://www.w3.org/TR/2018/REC-WCAG2120180605/and https://perma.cc/UB8A-GG2F.
56 See 14 CFR 382.43(c) through (e) and 382.57.
57 See, e.g., Austl. Gov’t Digital Transformation
Agency, Exploring WCAG 2.1 for Australian
Government Services (Aug. 22, 2018), https://
www.dta.gov.au/blogs/exploring-wcag-21australian-government-services. A Perma archive
link was unavailable for this citation. See also W3C,
Denmark (Danmark), https://www.w3.org/WAI/
policies/denmark/#bekendtg%C3%B8relse-omafgivelse-af-tilg%C3%A6ngelighedserkl%C
3%A6ring-for-offentlige-organers-websteder-ogmobilapplikationer [https://perma.cc/K8BM-4QN8]
(Mar. 15, 2023); see also W3C, Web Accessibility
Laws & Policies, https://www.w3.org/WAI/policies/
[https://perma.cc/6SU3-3VR3] (Dec. 2023).
58 European Comm’n, Web Accessibility, https://
digital-strategy.ec.europa.eu/en/policies/webaccessibility [https://perma.cc/LSG9-XW7L] (Oct.
10, 2023); European Telecomm. Standards Inst.,
Accessibility Requirements for ICT Products and
Services 45–51, 64–78 (Mar. 2021), https://
www.etsi.org/deliver/etsi_en/301500_301599/
301549/03.02.01_60/en_301549v030201p.pdf
[https://perma.cc/5TEZ-9GC6].
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Alaska, Delaware, Georgia, Louisiana,
Massachusetts, Oregon, Pennsylvania, South
Dakota, Utah, and Washington—already
either use WCAG 2.1 or strive to use WCAG
2.1 for at least some of their web content.
Given that WCAG 2.1 is a more recent
standard than WCAG 2.0, adds some
important criteria for accessibility, and has
been in existence for long enough for web
developers and public entities to get
acquainted with it, the Department views it
as more appropriate for adoption in subpart
H of this part than WCAG 2.0. In addition,
even to the extent public entities are not
already acquainted with WCAG 2.1, those
entities will have two or three years to come
into compliance with subpart H, which
should also provide sufficient time to become
familiar with and implement WCAG 2.1. The
Department also declines to adopt the Access
Board’s section 508 standards, which are
harmonized with WCAG 2.0, for the same
reasons it declines to adopt WCAG 2.0.
Effective Communication and Performance
Standards
Some commenters suggested that the
Department should require public entities to
ensure that they are meeting title II’s effective
communication standard—which requires
that public entities ensure that their
communications with individuals with
disabilities are as effective as their
communications with others 59—rather than
requiring compliance with a specific
technical standard for accessibility. One such
commenter also suggested that the
Department rely on conformance to WCAG
only as a safe harbor—as a way to show that
the entity complies with the effective
communication standard. The Department
believes that adopting into subpart H of this
part the effective communication standard,
which is already required under the existing
title II regulation,60 would not meaningfully
help ensure access for individuals with
disabilities or provide clarity for public
entities in terms of what specifically public
entities must do to ensure that their web
content and mobile apps are accessible. As
previously mentioned, WCAG 2.1 Level AA
provides specific, testable success criteria. As
noted in section III.D.4 of the preamble to the
final rule, relying solely on the existing title
II obligations and expecting entities to
voluntarily comply has proven insufficient.
In addition, using the technical standard only
as a safe harbor would pose similar issues in
terms of clarity and would not result in
reliability and predictability for individuals
with disabilities seeking to access, for
example, critical government services that
public entities have as part of their web
content and mobile apps.
Commenters also suggested that manual
testing by individuals with disabilities be
required to ensure that content is accessible
to them. Although subpart H of this part does
not specifically require manual testing by
individuals with disabilities because
requiring such testing could pose logistical or
other hurdles, the Department recommends
that public entities seek and incorporate
59 Section
35.160.
60 Id.
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feedback from individuals with disabilities
on their web content and mobile apps. Doing
so will help ensure that everyone has access
to critical government services.
The Department received some comments
recommending that the Department adopt a
performance standard instead of a specific
technical standard for accessibility of web
content and mobile apps. Performance
standards establish general expectations or
goals for web and mobile app accessibility
and allow for compliance via a variety of
unspecified methods. As commenters
explained, performance standards could
provide greater flexibility in ensuring
accessibility as web and mobile app
technologies change. However, as the
Department noted in the NPRM,61 the
Department believes that performance
standards are too vague and subjective and
could be insufficient to provide consistent
and testable requirements for web and mobile
app accessibility. Additionally, the
Department expects that performance
standards would not result in predictability
for either public entities or individuals with
disabilities in the way that a more specific
technical standard would. Further, similar to
a performance standard, WCAG has been
designed to allow for flexibility and
innovation as technology evolves.62 The
Department recognizes the importance of
adopting a standard for web and mobile app
accessibility that provides not only specific
and testable requirements, but also sufficient
flexibility to develop accessibility solutions
for new technologies. The Department
believes that WCAG achieves this balance
because it provides flexibility similar to a
performance standard, but it also provides
more clarity, consistency, predictability, and
objectivity. Using WCAG also enables public
entities to know precisely what is expected
of them under title II, which may be of
particular benefit to entities with less
technological experience. This will assist
public entities in identifying and addressing
accessibility errors, which may reduce costs
they would incur without clear expectations.
Evolving Standard
Other commenters suggested that the
Department take an approach in the final rule
whereby public entities would be required to
comply with whatever is the most recent
version of WCAG at the time. Under that
approach, the required technical standard
would automatically update as new versions
of WCAG are published in the future. These
commenters generally argued that such an
approach would aid in ‘‘future proofing’’
subpart H of this part to help it keep up with
changes in technology. Based on several legal
considerations, the Department will not
adopt such an approach. First, the
Department is incorporating WCAG 2.1 Level
61 88
FR 51962.
Benefits of Web Content Accessibility
Guidelines WCAG 2, https://www.w3.org/WAI/
presentations/WCAG20_benefits/WCAG20_
benefits.html [https://perma.cc/3RTN-FLKV] (Aug.
12, 2010) (‘‘WCAG 2 is adaptable and flexible, for
different situations, and developing technologies
and techniques. We described earlier how WCAG
2 is flexible to apply to Web technologies now and
in the future.’’).
62 W3C,
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AA by reference into subpart H and must
abide by the Office of the Federal Register’s
regulation regarding incorporation by
reference.63 The regulation states that
incorporation by reference of a publication is
limited to the edition of the publication that
is approved by the Office of the Federal
Register. Future amendments or revisions of
the publication are not included.64
Accordingly, the Department only
incorporates a particular version of the
technical standard and does not state that
future versions of WCAG would be
automatically incorporated into subpart H. In
addition, the Department has concerns about
regulating to a future standard of WCAG that
has yet to be created, of which the
Department has no knowledge, and for which
compatibility with the ADA and covered
entities’ content is uncertain.
Relatedly, the Department also received
comments suggesting that it institute a
process for reviewing and revising its
regulation every several years to ensure that
subpart H of this part is up to date and
effective for current technology. Pursuant to
Executive Order 13563, the Department is
already required to do a periodic
retrospective review of its regulations to
determine whether any such regulations
should be modified, streamlined, expanded,
or repealed so as to make the agency’s
regulatory program more effective or less
burdensome in achieving the regulatory
objectives.65 Consideration of the
effectiveness of subpart H of this part in the
future would fall within Executive Order
13563’s purview, such that building a
mechanism into subpart H is not necessary
at this time.
Alternative Approaches Considered for
Mobile Apps and Conventional Electronic
Documents
Section 35.200 adopts WCAG 2.1 Level AA
as the technical standard for mobile apps.
This approach will ensure the accessibility
standards for mobile apps in subpart H of
this part are consistent with the accessibility
standards for web content in subpart H. The
NPRM asked for feedback on the appropriate
technical standard for mobile apps, including
whether the Department should adopt WCAG
2.1 Level AA or other standards like the
standards for section 508 of the
Rehabilitation Act (‘‘Section 508 Standards’’),
which apply to the Federal Government’s
web content and mobile apps.66 The
Department received several comments on
the technical standard that should apply to
mobile apps. Some commenters supported
adopting WCAG 2.1 Level AA, some
suggested adopting other technical standards
or requirements, and others suggested that
some WCAG success criteria may not apply
to mobile apps.
Some commenters had concerns about the
costs and burdens associated with applying
any technical standard to content on mobile
apps, including to content in mobile apps
that public entities already provide on the
63 See
1 CFR 51.1(f).
64 Id.
65 E.O.
13563, sec. 6, 3 CFR, 2012 Comp., p. 215.
CFR 1194.1; 36 CFR part 1194, appendices
A, C, and D.
66 36
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31349
web. One commenter requested that the
Department apply WCAG 2.0 to the extent
that a public entity’s mobile app provides
different content than is available online.
However, many commenters expressed
strong support for applying the same
technical standard for mobile apps and web
content and shared that web content and
mobile apps generally should not be treated
differently. These commenters emphasized
the importance of mobile app accessibility,
explaining that many individuals rely on
mobile apps to get information about State or
local government services, programs, or
activities, including transportation
information, emergency alerts or special
news bulletins, and government
appointments. Some commenters further
clarified that adopting different standards for
mobile apps than web content could cause
confusion. They also stated that adopting the
same standard would ensure a uniform
experience and expectations for users with
disabilities.
Many commenters, including disability
advocacy organizations, individuals, and
public entities, supported the use of WCAG
2.1 Level AA as the technical standard for
mobile apps, in part because WCAG is
internationally recognized, often adopted in
practice, and technology neutral (i.e., it
applies to both web content and mobile
apps). Other commenters said that WCAG 2.1
Level AA is an appropriate standard for
mobile apps because it includes specific
success criteria aimed at addressing the
unique challenges of mobile app
accessibility.
Some commenters suggested that the
Department should adopt WCAG 2.2 as the
technical standard for mobile apps. These
commenters explained that WCAG 2.2 is
more recent and includes newer guidelines
based on accessibility issues found in
smartphones. Commenters further shared
that WCAG 2.2 can better ensure adequate
button size and spacing to accommodate
users with varying degrees of motor skills in
their fingers.
In addition, other commenters
recommended that the Department adopt the
Section 508 Standards, either independently
or together with WCAG 2.1 or WCAG 2.2.
Some of these commenters shared their belief
that WCAG was developed more for web
content than for mobile apps. These
commenters stated that while many of
WCAG’s principles and guidelines can be
applied to mobile apps, mobile apps have
unique characteristics and interactions that
may require additional considerations and
depend on the specific requirements and
goals of the mobile app in question. For
example, commenters indicated that mobile
apps may also need to adhere to platformspecific accessibility guidelines for iOS
(Apple) and Android (Google). In addition,
commenters noted that the Section 508
Standards include additional requirements
applicable to mobile apps that are not
included in WCAG 2.1 Level AA, such as
interoperability requirements to ensure that a
mobile app does not disrupt a mobile
device’s internal assistive technology for
individuals with disabilities (e.g., screen
readers for people who are blind or have low
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vision). Some commenters suggested that the
Department include these additional
requirements from the Section 508 Standards
in subpart H of this part.
The Department carefully considered all of
these comments and agrees with commenters
who stated that the same technical standard
for accessibility should apply to both web
content and mobile apps. The Department
believes that applying the same technical
standard to both web content and mobile
apps will reduce confusion by ensuring
consistent requirements and user experiences
across web and mobile platforms.
The Department further agrees with the
commenters who stated that WCAG 2.1 Level
AA is an appropriate technical standard. As
discussed previously in this appendix, many
developers and organizations are already
familiar with WCAG 2.1 Level AA, and they
may be less familiar with WCAG 2.2. The
Department thus believes that selecting
WCAG 2.1 Level AA as the technical
standard for mobile apps will reduce the
difficulty of complying with subpart H of this
part by adopting a well-recognized standard
that is already familiar to developers and
organizations, while still ensuring increased
accessibility and usability for individuals
with disabilities. The Department notes that
subpart H allows for equivalent facilitation in
§ 35.203, meaning that public entities could
still choose to apply additional standards or
techniques related to mobile apps, to the
extent that the standard or technique results
in substantially equivalent or greater
accessibility and usability.
As commenters noted, WCAG 2.1 is
designed to be technology neutral, which
will help ensure accessibility for mobile
apps. Although the Section 508 Standards
include some additional requirements like
interoperability that are not required by
WCAG,67 WCAG 2.1 Level AA includes
specific success criteria related to mobile app
accessibility. These success criteria address
challenges such as touch target size,
orientation, and motion actuation, among
others.68 Therefore, the Department believes
that WCAG 2.1 Level AA is a robust
framework for mobile app accessibility.
The Department also received comments
indicating that certain requirements under
WCAG 2.1 Level AA may not be applicable
to mobile apps or conventional electronic
documents and subpart H of this part should
therefore set forth exceptions for those
success criteria. The Access Board faced
similar concerns when it promulgated its
Section 508 Standards.69 Accordingly, the
Section 508 Standards indicate that ‘‘nonWeb documents’’ and ‘‘non-Web software,’’
which include conventional electronic
documents and mobile apps, do not have to
comply with the following WCAG 2.0
Success Criteria: 2.4.1 Bypass Blocks, 2.4.5
67 See 36 CFR 1194.1; 36 CFR part 1194, appendix
C, ch. 5.
68 W3C, Web Content Accessibility Guidelines
(WCAG) 2.1 (June 5, 2018), https://www.w3.org/TR/
2018/REC-WCAG21-20180605/ and https://
perma.cc/UB8A-GG2F (success criteria 2.5.5, 1.3.4,
& 2.5.4).
69 See Information and Communication
Technology (ICT) Standards and Guidelines, 82 FR
5790, 5798–99 (Jan. 18, 2017).
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Multiple Ways, 3.2.3 Consistent Navigation,
and 3.2.4 Consistent Identification.70 W3C
has provided guidance on how these and
other WCAG success criteria can be applied
to non-web information and communications
technologies, including conventional
electronic documents and mobile apps.71
The Department understands that some
WCAG 2.1 Level AA success criteria may not
apply to conventional electronic documents
and mobile apps directly as written, but the
Department declines to set forth exceptions
to these success criteria in subpart H of this
part. As discussed, the Department believes
it is important to apply one consistent
standard to web content and mobile apps to
ensure clarity and reduce confusion. Public
entities generally must ensure that the web
content and content in mobile apps they
provide or make available conform to the
WCAG 2.1 Level AA success criteria, to the
extent those criteria can be applied. In
determining how to make conventional
electronic documents and mobile apps
conform to WCAG 2.1 Level AA, public
entities may wish to consult W3C’s guidance
on non-web information and
communications technology, which explains
how the WCAG success criteria can be
applied to conventional electronic
documents and mobile apps.72 The
Department believes the compliance dates
discussed in § 35.200 will provide public
entities sufficient time to understand how
WCAG 2.1 Level AA applies to their
conventional electronic documents and
mobile apps, especially because WCAG 2.1
has been in final form since 2018, which has
provided time for familiarity and resources to
develop. Further, the Department will
continue to monitor developments in the
accessibility of conventional electronic
documents and mobile apps and may issue
further guidance as appropriate.
Alternative Approaches Considered for PDF
Files and Digital Textbooks
The Department also received a comment
suggesting that subpart H of this part
reference PDF/UA–1 for standards related to
PDF files or W3C’s EPUB Accessibility 1.1
standard 73 for digital textbooks. The
Department declines to adopt additional
70 Id.
at 5799.
WCAG2ICT Overview, https://
www.w3.org/WAI/standards-guidelines/wcag/nonweb-ict/ [https://perma.cc/XRL6-6Q9Y] (Feb. 2,
2024).
72 See W3C, Guidance on Applying WCAG 2.0 to
Non-Web Information and Communications
Technologies (WCAG2ICT) (Sep. 5, 2003), https://
www.w3.org/TR/wcag2ict/ [https://perma.cc/6HKS8YZP]. This guidance may provide assistance in
interpreting certain WCAG 2.0 success criteria (also
included in WCAG 2.1 Level AA) that do not
appear to be directly applicable to non-web
information and communications like conventional
electronic documents and mobile apps as written,
but that can be made applicable with minor
revisions. For example, for Success Criterion 1.4.2
(audio control), replacing the words ‘‘on a web
page’’ with ‘‘in a non-web document or software’’
can make this Success Criterion clearly applicable
to conventional electronic documents and mobile
apps.
73 W3C, EPUB Accessibility 1.1 (May 25, 2023),
https://www.w3.org/TR/epub-a11y-11/ [https://
perma.cc/48A5-NC2B].
71 W3C,
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technical standards for these specific types of
content. As discussed, the WCAG standards
were designed to be ‘‘technology neutral’’ 74
and are designed to be broadly applicable to
current and future web technologies.75 The
Department is concerned that adopting
multiple technical standards related to
different types of web content and content in
mobile apps could lead to confusion.
However, the Department notes that subpart
H allows for equivalent facilitation in
§ 35.203, meaning that public entities could
still choose to comply with additional
standards or guidance related to PDFs or
digital textbooks to the extent that the
standard or technique used provides
substantially equivalent or greater
accessibility and usability.
In summary, the Department believes that
adopting WCAG 2.1 Level AA as the
technical standard strikes the appropriate
balance of ensuring access for individuals
with disabilities and feasibility of
implementation because there is a baseline of
familiarity with the standard. In addition, for
the reasons discussed previously in this
appendix, the Department believes that
WCAG 2.1 Level AA is an effective standard
that sets forth clear, testable success criteria
that will provide important benefits to
individuals with disabilities.
WCAG Conformance Level
For web content and mobile apps to
conform to WCAG 2.1, they must satisfy the
success criteria under one of three levels of
conformance: A, AA, or AAA. As previously
mentioned, the Department is adopting Level
AA as the conformance level under subpart
H of this part. In the regulatory text at
§ 35.200(b)(1) and (2), the Department
provides that public entities must comply
with Level A and Level AA success criteria
and conformance requirements specified in
WCAG 2.1. As noted in the NPRM,76 WCAG
2.1 provides that for Level AA conformance,
the web page must satisfy all the Level A and
Level AA Success Criteria.77 However,
individual success criteria in WCAG 2.1 are
labeled only as Level A or Level AA.
Therefore, a person reviewing individual
requirements in WCAG 2.1 may not
understand that both Level A and Level AA
success criteria must be met to attain Level
AA conformance. Accordingly, the
Department has made explicit in subpart H
that both Level A and Level AA success
74 W3C, Introduction to Understanding WCAG
(June 20, 2023), https://www.w3.org/WAI/WCAG21/
Understanding/intro [https://perma.cc/XB3YQKVU].
75 See W3C, Understanding Techniques for
WCAG Success Criteria (June 20, 2023), https://
www.w3.org/WAI/WCAG21/Understanding/
understanding-techniques [https://perma.cc/AMT4XAAL].
76 88 FR 51961.
77 W3C, Web Content Accessibility Guidelines
(WCAG) 2.1, § 5.2 Conformance Requirements (June
5, 2018), https://www.w3.org/TR/2018/RECWCAG21-20180605/#conformance-reqs [https://
perma.cc/39WD-CHH9]. WCAG 2.1 also allows a
Level AA conforming alternate version to be
provided instead. The Department has adopted a
slightly different approach to conforming alternate
versions, which is discussed in the section-bysection analysis of § 35.202.
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criteria and conformance requirements must
be met in order to comply with subpart H’s
requirements.
By way of background, the three levels of
conformance indicate a measure of
accessibility and feasibility. Level A, which
is the minimum level of accessibility,
contains criteria that provide basic web
accessibility and are the least difficult to
achieve for web developers.78 Level AA,
which is the intermediate level of
accessibility, includes all of the Level A
criteria and also contains other criteria that
provide more comprehensive web
accessibility, and yet are still achievable for
most web developers.79 Level AAA, which is
the highest level of conformance, includes all
of the Level A and Level AA criteria and also
contains additional criteria that can provide
a more enriched user experience, but are the
most difficult to achieve for web
developers.80 W3C does not recommend that
Level AAA conformance be required as a
general policy for entire websites because it
is not possible to satisfy all Level AAA
criteria for some content.81
Based on public feedback and independent
research, the Department believes that WCAG
2.1 Level AA is the appropriate conformance
level because it includes criteria that provide
web and mobile app accessibility to
individuals with disabilities—including
those with visual, auditory, physical, speech,
cognitive, and neurological disabilities—and
yet is feasible for public entities’ web
developers to implement. Commenters who
spoke to this issue generally seemed
supportive of this approach. As discussed in
the NPRM,82 Level AA conformance is
widely used, making it more likely that web
developers are already familiar with its
requirements. Though many of the entities
that conform to Level AA do so under WCAG
2.0, not WCAG 2.1, this still suggests a
widespread familiarity with most of the Level
AA success criteria, given that 38 of the 50
Level A and AA success criteria in WCAG 2.1
are also included in WCAG 2.0.83 The
Department believes that Level A
conformance alone is not appropriate
because it does not include criteria for
providing web accessibility that the
Department understands are critical, such as
a minimum level of color contrast so that
items like text boxes or icons are easier to
see, which is important for individuals with
vision disabilities.
Some commenters suggested that certain
Level AAA criteria or other unique
accessibility requirements be added to the
78 W3C, Web Content Accessibility Guidelines
(WCAG) 2 Level A Conformance (July 13, 2020),
https://www.w3.org/WAI/WCAG2A-Conformance
[https://perma.cc/KT74-JNHG].
79 Id.
80 Id.
81 See W3C, Understanding Conformance,
Understanding Requirement 1, https://www.w3.org/
WAI/WCAG21/Understanding/conformance
[https://perma.cc/K94N-Z3TF].
82 88 FR 51961.
83 W3C, Web Content Accessibility Guidelines
(WCAG) 2.1, 0.5 Comparison with WCAG 2.0 (June
5, 2018), https://www.w3.org/TR/2018/RECWCAG21-20180605/#comparison-with-wcag-2-0
[https://perma.cc/H76F-6L27].
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technical standard in subpart H of this part.
However, the Department believes it would
be confusing and difficult to implement
certain Level AAA or other unique criteria
when such criteria are not required under
WCAG 2.1 Level AA. Adopting WCAG 2.1
Level AA as a whole provides greater
predictability and reliability. Also, while
Level AAA conformance provides a richer
user experience, it is the most difficult to
achieve for many entities. Again, W3C does
not recommend that Level AAA conformance
be required as a general policy for entire
websites because it is not possible to satisfy
all Level AAA criteria for some content.84
Adopting a Level AA conformance level
makes the requirements of subpart H
consistent with a standard that has been
accepted internationally.85 The web content
of Federal agencies is also required to
conform to WCAG 2.0 Level AA under the
Section 508 Standards.86
Therefore, the Department believes that
adopting the Level AA conformance level
strikes the right balance between accessibility
for individuals with disabilities and
achievability for public entities.
Requirements by Entity Size
In addition to setting forth a technical
standard with which public entities must
comply, § 35.200(b) also establishes dates by
which a public entity must comply. The
compliance time frames set forth in
§ 35.200(b) are generally delineated by the
total population of the public entity, as
defined in § 35.104. Larger public entities—
those with populations of 50,000 or more—
will have two years before compliance is first
required. For the reasons discussed in the
section-by-section analysis of § 35.200(b)(2),
small public entities—those with total
populations under 50,000—and special
district governments will have an additional
year, totaling three years, before compliance
is first required. The 50,000 population
threshold was chosen because it corresponds
with the definition of ‘‘small governmental
jurisdictions’’ as defined in the Regulatory
Flexibility Act.87 After the compliance date,
ongoing compliance with subpart H of this
part is required.
Commenters expressed a wide range of
views about how long public entities should
be given to bring their web content and
mobile apps into compliance with subpart H
of this part. Some commenters expressed
concern that public entities would need more
time to comply, while others expressed
concern that a delayed compliance date
would prolong the exclusion of individuals
with disabilities from public entities’ online
services, programs, or activities. Suggestions
for the appropriate compliance time frame
ranged from six months to six years. There
84 See W3C, Understanding Conformance,
Understanding Requirement 1, https://www.w3.org/
WAI/WCAG21/Understanding/conformance
[https://perma.cc/9ZG9-G5N8].
85 See W3C, Web Accessibility Laws & Policies,
https://www.w3.org/WAI/policies/ [https://
perma.cc/6SU3-3VR3] (Dec. 4, 2023).
86 See Information and Communication
Technology (ICT) Standards and Guidelines, 82 FR
5790, 5791 (Jan. 18, 2017).
87 5 U.S.C. 601(5).
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were also some commenters who suggested a
phased approach where a public entity
would need to periodically meet certain
compliance milestones over time by
prioritizing certain types of content or
implementing certain aspects of the technical
standard. Refer to the section of the sectionby-section analysis entitled ‘‘Compliance
Time Frame Alternatives’’ for further
discussion of these suggested approaches.
The Department appreciates the various
considerations raised by public stakeholders
in their comments. After carefully weighing
the arguments that the compliance dates
should be kept the same, shortened,
lengthened, or designed to phase in certain
success criteria or focus on certain content,
the Department has decided that the
compliance dates in subpart H of this part—
two years for large public entities and three
years for small public entities and special
district governments—strike the appropriate
balance between the various interests at
stake. Shortening the compliance dates
would likely result in increased costs and
practical difficulties for public entities,
especially small public entities. Lengthening
the compliance dates would prolong the
exclusion of many individuals with
disabilities from public entities’ web content
and mobile apps. The Department believes
that the balance struck in the compliance
time frame proposed in the NPRM was
appropriate, and that there are no overriding
reasons to shorten or lengthen these dates
given the important and competing
considerations involved by stakeholders.
Some commenters said that the
Department should not require compliance
with technical standards for mobile apps
until at least two years after the compliance
deadline for web content. These commenters
asserted that having different compliance
dates for web content and mobile apps would
allow entities to learn how to apply
accessibility techniques to their web content
and then apply that experience to mobile
apps. Other commenters argued that the
compliance dates for mobile apps should be
shortened or kept as proposed.
The Department has considered these
comments and subpart H of this part
implements the same compliance dates for
mobile apps and web content, as proposed in
the NPRM. Because users can often access
the same information from both web content
and mobile apps, it is important that both
platforms are subject to the standard at the
same times to ensure consistency in
accessibility and to reduce confusion. The
Department believes these compliance dates
strike the appropriate balance between
reducing burdens for public entities and
ensuring accessibility for individuals with
disabilities.
Some commenters stated that it would be
helpful to clarify whether subpart H of this
part establishes a one-time compliance
requirement or instead establishes an
ongoing compliance obligation for public
entities. The Department wishes to clarify
that under subpart H, public entities have an
ongoing obligation to ensure that their web
content and mobile apps comply with
subpart H’s requirements, which would
include content that is newly added or
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created after the compliance date. The
compliance date is the first time that public
entities need to be in compliance with
subpart H’s requirements; it is not the last.
Accordingly, after the compliance date,
public entities will continue to need to
ensure that all web content and mobile apps
they provide or make available comply with
the technical standard, except to the extent
another provision of subpart H permits
otherwise. To make this point more clearly,
the Department revised § 35.200(b)(1) and (2)
to state that a public entity needs to comply
with subpart H beginning two or three years
after the publication of the final rule.
Additionally, some commenters suggested
that public entities be required to review
their content for accessibility every few
years. The Department does not view this as
necessary given the ongoing nature of subpart
H’s requirements. However, public entities
might find that conducting such reviews is
helpful in ensuring compliance.
Of course, while public entities must begin
complying with subpart H of this part on the
applicable compliance date, the Department
expects that public entities will need to
prepare for compliance during the two or
three years before the compliance date. In
addition, commenters emphasized—and the
Department agrees—that public entities still
have an obligation to meet all of title II’s
existing requirements both before and after
the date they must initially come into
compliance with subpart H. These include
the requirements to ensure equal access,
ensure effective communication, and make
reasonable modifications to avoid
discrimination on the basis of disability.88
The requirements of § 35.200(b) are
generally delineated by the size of the total
population of the public entity. If a public
entity has a population calculated by the
United States Census Bureau in the most
recent decennial Census, then the United
States Census Bureau’s population estimate
for that entity in the most recent decennial
Census is the entity’s total population for
purposes of this part. If a public entity is an
independent school district, then the
district’s total population for purposes of this
part is determined by reference to the
district’s population estimate as calculated
by the United States Census Bureau in the
most recent Small Area Income and Poverty
Estimates.
The Department recognizes that some
public entities, like libraries or public
colleges and universities, do not have
population data associated with them in the
most recent decennial Census conducted by
the United States Census Bureau. As noted in
the section-by-section analysis of § 35.104,
the Department has inserted a clarification
that was previously found in the preamble of
the NPRM into the regulatory text of the
definition of ‘‘total population’’ in this part
to make it easier for public entities like these
to determine their total population size for
purposes of identifying the applicable
compliance date. As the definition of ‘‘total
population’’ makes clear, if a public entity,
other than a special district government or an
independent school district, does not have a
88 Sections
35.130(b)(1)(ii) and (b)(7) and 35.160.
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population calculated by the United States
Census Bureau in the most recent decennial
Census, but is an instrumentality or a
commuter authority of one or more State or
local governments that do have such a
population estimate, the population of the
entity is determined by the combined
population of any State or local governments
of which the public entity is an
instrumentality or commuter authority. For
example, a county police department that is
an instrumentality of a county with a
population of 5,000 would be considered a
small public entity (i.e., an entity with a total
population of less than 50,000) for purposes
of this part, while a city police department
that is an instrumentality of a city with a
population of 200,000 would not be
considered a small public entity. Similarly, if
a public entity is an instrumentality of an
independent school district, the
instrumentality’s population for purposes of
this part is determined by reference to the
total population of the independent school
district as calculated in the most recent Small
Area Income and Poverty Estimates. This part
also states that the National Railroad
Passenger Corporation’s total population for
purposes of this part is determined by
reference to the population estimate for the
United States as calculated by the United
States Census Bureau in the most recent
decennial Census.
For purposes of this part, the total
population of a public entity is not defined
by the population that is eligible for or that
takes advantage of the specific services of the
public entity. For example, an independent
school district with a population of 60,000
adults and children, as calculated in the
Small Area Income and Poverty Estimates, is
not a small public entity regardless of the
number of students enrolled or eligible for
services. Similarly, individual county
schools are also not considered small public
entities if they are instrumentalities of a
county that has a population over 50,000.
Though a specific county school may create
and maintain web content or a mobile app,
the Department expects that the specific
school may benefit from the resources made
available or allocated by the county. This
also allows the jurisdiction to assess
compliance for its services, programs, and
activities holistically. As another example, a
public State university located in a town of
20,000 within a State with a population of 5
million would be considered a large public
entity for the purposes of this part because
it is an instrumentality of the State. However,
a county community college in the same
State where the county has a population of
35,000 would be considered a small public
entity for the purposes of this part, because
the community college is an instrumentality
of the county.
Some commenters provided feedback on
this method of calculating a public entity’s
size for purposes of determining the
applicable compliance time frame. Some
public educational entities seemed to
mistakenly believe that their populations
would be calculated based on the size of their
student bodies and suggested that it would be
difficult for them to calculate their
population size under that approach because
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they have multiple campuses in different
locations. As clarified previously in this
appendix, population size for educational
entities is determined not by the size of those
entities’ student bodies, but rather by
reference to the Census-calculated total
population of the jurisdiction of which the
educational entity is an instrumentality.
Other commenters suggested that although
public entities without a Census-defined
population may be instrumentalities of
public entities that do have such a
population, those entities do not always
reliably receive funding from the public
entities of which they are instrumentalities.
The Department understands that the
financial relationships between these entities
may vary, but the Department believes that
the method of calculating population it has
adopted will generally be the clearest and
most effective way for public entities to
determine the applicable compliance time
frame.
Some commenters associated with
educational entities suggested that the
Department use the Carnegie classification
system for purposes of determining when
they must first comply with subpart H of this
part. The Carnegie classification system takes
into account factors that are not relevant to
subpart H, such as the nature of the degrees
offered (e.g., baccalaureate versus associate’s
degrees).89 Subpart H treats educational
entities the same as other public entities for
purposes of determining the applicable
compliance time frame, which promotes
consistency and reliability.
Other commenters suggested that factors
such as number of employees, budget,
number and type of services provided, and
web presence be used to determine the
appropriate compliance time frame.
However, the Department believes that using
population as determined by the Census
Bureau is the clearest, most predictable, and
most reliable factor for determining the
compliance time frame. At least one
commenter highlighted that population size
often relates to the audience of people with
disabilities that a public entity serves
through its web content and mobile apps. In
addition, the Regulatory Flexibility Act uses
population size to define what types of
governmental jurisdictions qualify as
‘‘small.’’ 90 This concept, therefore, should be
familiar to public entities. Additionally,
using population allows the Department to
account for the unique challenges faced by
small public entities, as discussed in the
section-by-section analysis of § 35.200(b)(2).
The Department also received comments
asserting that the threshold for being
considered ‘‘small’’ should be changed and
that the Department should create varying
compliance dates based on additional
gradations of public entity size. The
Department believes it is most appropriate to
rely on the 50,000 threshold—which is
89 See Am. Council on Educ., Carnegie
Classification of Institutions of Higher Education,
https://carnegieclassifications.acenet.edu/ [https://
perma.cc/Q9JZ-GQN3]; Am. Council on Educ.,
About the Carnegie Classification, https://
carnegieclassifications.acenet.edu/carnegieclassification/ [https://perma.cc/B6BH-68WM].
90 5 U.S.C. 601(5).
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drawn from and consistent with the
Regulatory Flexibility Act—to promote
consistency and predictability for public
entities. Creating additional categories and
compliance time frames would likely result
in an unnecessary patchwork of obligations
that would make it more difficult for public
entities to understand their compliance
obligations and for individuals with
disabilities to understand their rights. The
approach in subpart H of this part preserves
the balance between public entities’ needs to
prepare for costs and individuals with
disabilities’ needs to access online services,
programs, and activities. In addition,
breaking down the size categories for
compliance dates further could lead to an
arbitrary selection of the appropriate size
cutoff. The Department selected the size
cutoff of 50,000 persons in part because the
Regulatory Flexibility Act defines ‘‘small
governmental jurisdictions’’ as those with a
population of less than 50,000.91 Selecting a
different size cutoff would require estimating
the appropriate size to use, and without
further input from the public, it could lead
to an arbitrary selection inconsistent with the
needs of public entities. Because of this, the
Department believes the most prudent
approach is to retain the size categories that
are consistent with those outlined in the
Regulatory Flexibility Act. The Department
also believes that retaining two categories of
public entities—large and small—strikes the
appropriate balance of acknowledging the
compliance challenges that small public
entities may face while not crafting a system
that is unduly complex, unpredictable, or
inconsistent across public entities.
Section 35.200(b)(1): Larger Public Entities
Section 35.200(b)(1) sets forth the web
content and mobile app accessibility
requirements for public entities with a total
population of 50,000 or more. The
requirements of § 35.200(b)(1) apply to larger
public entities—specifically, to those public
entities that do not qualify as ‘‘small
governmental jurisdictions’’ as defined in the
Regulatory Flexibility Act.92 Section
35.200(b)(1) requires that beginning two
years after the publication of the final rule,
these public entities must ensure that the
web content and mobile apps that they
provide or make available 93 comply with
Level A and Level AA success criteria and
conformance requirements specified in
WCAG 2.1, unless the entities can
demonstrate that compliance would result in
a fundamental alteration in the nature of a
service, program, or activity or in undue
financial and administrative burdens.94
91 See
id.
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92 Id.
93 As the regulatory text for § 35.200(a)(1) and (2)
and (b)(1) and (2) makes clear, subpart H of this part
covers web content and mobile apps that a public
entity provides or makes available, whether directly
or through contractual, licensing, or other
arrangements. This regulatory text is discussed in
more detail in this section.
94 The undue financial and administrative
burdens limitation on a public entity’s obligation to
comply with the requirements of subpart H of this
part is discussed in more detail in the section-bysection analysis of § 35.204.
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As discussed previously in this appendix,
the Department received varied feedback
from the public regarding an appropriate
time frame for requiring public entities to
begin complying with subpart H of this part.
Individuals with disabilities and disability
advocacy organizations tended to prefer a
shorter time frame, often arguing that web
accessibility has long been required by the
ADA and that extending the deadline for
compliance rewards entities that have not
made efforts to make their websites
accessible. Such commenters also
emphasized that a longer compliance time
frame would prolong the time that
individuals with disabilities would not have
access to critical services offered by public
entities, which would undermine the
purpose of the ADA. Commenters noted that
delays in compliance may be particularly
problematic in contexts such as voting and
education, where delays could be
particularly impactful given the timesensitive nature of these programs. Another
commenter who supported shorter time
frames pointed out that the Department has
entered into settlements with public entities
requiring that their websites be made
accessible in shorter amounts of time, such
as a few months.95 The Department notes that
while such settlement agreements serve as
important datapoints, those agreements are
tailored to the specific situation and entity
involved and are not broadly applicable like
a regulation.
State and local government entities have
been particularly concerned—now and in the
past—about shorter compliance deadlines,
often citing budgets and staffing as major
limitations. For example, as noted in the
NPRM, when WCAG 2.0 was relatively new,
many public entities stated that they lacked
qualified personnel to implement that
standard. They told the Department that in
addition to needing time to implement the
changes to their websites, they also needed
time to train staff or contract with
professionals who are proficient in
developing accessible websites. Considering
all these factors, as well as the fact that over
a decade has passed since the Department
started receiving such feedback and there is
now more available technology to make web
content and mobile apps accessible, the
Department believes a two-year compliance
time frame for public entities with a total
population of 50,000 or more is appropriate.
Public entities and the community of web
developers have had more than a decade to
familiarize themselves with WCAG 2.0,
which was published in 2008 and serves as
95 See, e.g., Settlement Agreement Between the
United States of America and the City of Cedar
Rapids, Iowa Under the Americans with Disabilities
Act (Sept. 1, 2015), https://www.ada.gov/cedar_
rapids_pca/cedar_rapids_sa.html [https://
perma.cc/Z338-B2BU]; Settlement Agreement
Between the United States of America and the City
of Fort Morgan, Colo. Under the Americans with
Disabilities Act (Aug. 8, 2013), https://
www.ada.gov/fort-morgan-pca/fort-morgan-pcasa.htm [https://perma.cc/JA3E-QYMS]; Settlement
Agreement Between the United States of America
and the Town of Poestenkill, N.Y. Under the
Americans with Disabilities Act (July 19, 2013),
https://www.ada.gov/poestenkill-pca/poestenkillsa.html [https://perma.cc/DGD5-NNC6].
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the foundation for WCAG 2.1, and more than
five years to familiarize themselves with the
additional 12 Level A and AA success
criteria of WCAG 2.1.96 The Department
believes these 12 additional success criteria
will not significantly increase the time or
resources that it will take for a public entity
to come into compliance with subpart H of
this part beyond what would have already
been required to conform to WCAG 2.0. The
Department therefore believes that subpart
H’s approach balances the resource
challenges reported by public entities with
the interests of individuals with disabilities
in accessing the multitude of services,
programs, and activities that public entities
now offer via the web and mobile apps.
Section 35.200(b)(2): Small Public Entities
and Special District Governments
Section 35.200(b)(2) sets forth the web
content and mobile app accessibility
requirements for public entities with a total
population of less than 50,000 and special
district governments. As noted in the
preceding section, the 50,000 population
threshold was chosen because it corresponds
with the definition of ‘‘small governmental
jurisdictions’’ in the Regulatory Flexibility
Act.97 Section 35.200(b)(2) requires that
beginning three years after the publication of
the final rule, these public entities with a
total population of less than 50,000 and
special district governments must ensure that
the web content and mobile apps that they
provide or make available 98 comply with
Level A and Level AA success criteria and
conformance requirements specified in
WCAG 2.1, unless the entities can
demonstrate that compliance would result in
a fundamental alteration in the nature of a
service, program, or activity or in undue
financial and administrative burdens.
Small Public Entities
The Department appreciates that small
public entities may sometimes face unique
challenges in making their web content and
mobile apps accessible, given that small
entities may have more limited or inflexible
budgets than other entities. The Department
is very sensitive to the need to craft a
workable approach for small entities and has
taken the needs of small public entities into
account at every stage in the rulemaking
process, consistent with the Regulatory
Flexibility Act of 1980 and Executive Order
13272.99 The NPRM asked a series of
96 W3C, Web Content Accessibility Guidelines
(WCAG) 2.1, 0.5 Comparison with WCAG 2.0 (June
5, 2018), https://www.w3.org/TR/2018/RECWCAG21-20180605/#comparison-with-wcag-2-0
[https://perma.cc/H76F-6L27].
97 5 U.S.C. 601(5).
98 As the regulatory text for § 35.200(a)(1) and (2)
and (b)(1) and (2) makes clear, subpart H of this part
covers web content and mobile apps that a public
entity provides or makes available, whether directly
or through contractual, licensing, or other
arrangements. This regulatory text is discussed in
more detail in this section.
99 See Nondiscrimination on the Basis of
Disability; Accessibility of Web Information and
Services of State and Local Government Entities
and Public Accommodations, 75 FR 43460, 43467
(July 26, 2010); 88 FR 51949, 51961–51966.
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questions about the impact of the rulemaking
on small public entities, including about the
compliance costs and challenges that small
entities might face in conforming with the
rulemaking, the current level of accessibility
of small public entities’ web content and
mobile apps, and whether it would be
appropriate to adopt different technical
standards or compliance time frames for
small public entities.100
The Department has reviewed public
comments, including a comment from the
Small Business Administration Office of
Advocacy,101 attended a virtual roundtable
session hosted by the Small Business
Administration at which approximately 200
members of the public were present, and
carefully considered this topic. In light of its
review and consideration, the Department
believes that the most appropriate means of
reducing burdens for small public entities is
to give small public entities an extra year to
comply with subpart H of this part.
Accordingly, under § 35.200(b)(2), small
public entities, like all other public entities,
need to conform to WCAG 2.1 Level AA, but
small public entities have three years, instead
of the two years provided to larger public
entities, to come into compliance. In
addition, small public entities (like all public
entities) can rely on the five exceptions set
forth in § 35.201, in addition to the other
mechanisms that are designed to make it
feasible for all public entities to comply with
subpart H of this part, as set forth in
§§ 35.202, 35.203, 35.204 and 35.205.
Many commenters emphasized the
challenges that small public entities may face
in making their web content and mobile apps
accessible. For example, some commenters
reported that small public entities often have
restricted, inflexible budgets, and might need
to divert funds away from other government
services in order to comply with subpart H
of this part. Some commenters also asserted
that the Department underestimated the costs
that might be associated with bringing small
public entities’ web content and mobile apps
into compliance. Some commenters noted
that small public entities may lack technical
expertise and dedicated personnel to work on
accessibility issues. Commenters asserted
that some small entities’ web-based
operations are decentralized, and that these
entities would therefore need to train a large
number of individuals on accessibility to
ensure compliance. Commenters also
contended that many small public entities
may be dependent on third-party vendors to
make their content accessible, and that there
may be shortages in the number of web
developers available to assist with
remediation. Some commenters expressed
concern that small entities would simply
remove their web content rather than make
it accessible. Commenters also expressed
concern that public entities would need to
devote scarce resources to defending against
web accessibility lawsuits that might arise as
a result of subpart H, which might further
FR 51961–51966.
discussion of the comment from the Small
Business Administration Office of Advocacy can
also be found in the Final Regulatory Flexibility
Analysis.
exacerbate these entities’ budgetary
challenges. The Department notes that public
entities would not be required to undertake
changes that would result in a fundamental
alteration in the nature of a service, program,
or activity, or impose undue financial and
administrative burdens.
As a result of these concerns, some
commenters suggested that the Department
should create different or more flexible
standards for small entities. For example,
some commenters suggested that the
Department should require small entities to
conform to WCAG 2.0 instead of WCAG 2.1,
to match the standards that are applicable to
the Federal Government under section 508.
One commenter suggested that the
Department should require small public
entities to comply only with WCAG 2.0 Level
A, not Level AA. Other commenters
advocating for small public entities suggested
that those entities should have more time
than larger public entities to comply with
subpart H of this part, with suggested
compliance time frames ranging from three to
six years. Some commenters suggested the
Department should adopt extended
compliance dates for certain requirements of
subpart H that may be more onerous.
Commenters noted that having additional
time to comply would help public entities
allocate financial and personnel resources to
bring their websites into compliance. A
commenter stated that additional compliance
time would also allow more web developers
to become familiar with accessibility issues
and more digital accessibility consultants to
emerge, thereby lowering the cost of testing
and consulting services. A commenter noted
that some rural public entities may need
extra time to bring their content into
compliance but asserted that the Department
should avoid adopting a compliance date so
distant that it does not provide sufficient
urgency to motivate those entities to address
the issue.
Although many commenters expressed
concerns about the impact of subpart H of
this part on small public entities, many other
commenters expressed opposition to creating
different standards or compliance time
frames for small entities. Commenters
emphasized that people in rural areas might
need to travel long distances to access inperson services and that such areas may lack
public transportation or rideshare services.
Given those considerations, commenters
suggested that people with disabilities in
small jurisdictions need access to web-based
local government services just as much as,
and sometimes more than, their counterparts
in larger jurisdictions. Some commenters
noted that people with disabilities may
disproportionately reside in small towns or
rural areas, and that it is therefore especially
critical for those small and rural governments
to have accessible web content and mobile
apps. One commenter indicated that rural
residents are 14.7 percent more likely than
their urban counterparts to have a
disability.102 Commenters emphasized the
100 88
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102 See
Katrina Crankshaw, U.S. Census Bureau,
Disability Rates Higher in Rural Areas than Urban
Areas (June 26, 2023), https://www.census.gov/
library/stories/2023/06/disability-rates-higher-in-
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problems that may be associated with
imposing different technical standards based
on the size of the entity, including a lack of
predictability with respect to which
government services people can expect to be
accessible. Commenters also noted that
people with disabilities have a right to equal
access to their government’s services,
regardless of where they live, and stated that
setting different standards for small public
entities would undermine that right. One
commenter stated that, although each small
public entity may have only a small
population, there are a large number of small
public entities, meaning that any lowering of
the standards for small public entities would
cumulatively affect a large number of people.
Some commenters argued that setting
different substantive standards for small
public entities could make it challenging to
enforce subpart H. Some commenters argued
that setting different technical standards for
small public entities would be inconsistent
with title II of the ADA, which does not set
different standards based on the size of the
entity. One commenter argued that requiring
small public entities to comply only with
Level A success criteria would be inadequate
and inconsistent with international
standards.
Commenters also noted that there are many
factors that may make it easier for small
public entities to comply. For example, some
commenters suggested that small entities
may have smaller or less complex websites
than larger entities. Commenters noted that
public entities may be able to make use of
free, publicly available resources for
checking accessibility and to save money by
incorporating accessibility early in the
process of content creation, instead of as an
afterthought. Commenters also noted that
public entities can avoid taking actions that
are unduly burdensome by claiming the
fundamental alteration or undue burdens
limitations where appropriate.
One commenter argued that, because there
are a limited number of third-party vendors
that provide web content for public entities,
a few major third-party vendors shifting
towards accessibility as a result of increased
demand stemming from subpart H of this part
could have a cascading effect. This could
make the content of many entities that use
those vendors or their templates accessible
by default. Commenters also noted that
setting different technical standards for small
public entities would create confusion for
those attempting to implement needed
accessibility changes. One commenter also
contended that it may benefit small public
entities to use a more recent version of
WCAG because doing so may provide a better
experience for all members of the public.
Some commenters pointed out that the
challenges small public entities may face are
not necessarily unique, and that many public
entities, regardless of size, face budgetary
constraints, staffing issues, and a need for
training. In addition, some commenters noted
that the size of a public entity may not
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always be a good proxy for the number of
people who may need access to an entity’s
website.
Having carefully considered these
comments, the Department believes that
subpart H of this part strikes the appropriate
balance by requiring small public entities to
comply with the same technical standard as
larger public entities while giving small
public entities additional time to do so. The
Department believes this longer compliance
time frame is prudent in recognition of the
additional challenges that small public
entities may face in complying, such as
limited budgets, lack of technical expertise,
and lack of personnel. The Department
believes that providing an extra year for
small public entities to comply will give
those entities sufficient time to properly
allocate their personnel and financial
resources to make their web content and
mobile apps conform to WCAG 2.1 Level AA,
without providing so much additional time
that individuals with disabilities have a
reduced level of access to their State and
local government entities’ resources for an
extended period.
The Department believes that having
provided an additional year for small public
entities to comply with subpart H of this part,
it is appropriate to require those entities to
comply with the same technical standard and
conformance level as all other public entities.
This approach ensures consistent levels of
accessibility for public entities of all sizes in
the long term, which will promote
predictability and reduce confusion about
which standard applies. It will allow for
individuals with disabilities to know what
they can expect when navigating a public
entity’s web content; for example, it will be
helpful for individuals with disabilities to
know that they can expect to be able to
navigate any public entity’s web content
independently using their assistive
technology. It also helps to ensure that
individuals with disabilities who reside in
rural areas have comparable access to their
counterparts in urban areas, which is critical
given the transportation and other barriers
that people in rural areas may face.103 In
addition, for the reasons discussed elsewhere
in this appendix, the Department believes
that WCAG 2.1 Level AA contains success
criteria that are critical to accessing services,
programs, or activities of public entities,
which may not be included under a lower
standard. The Department notes that under
appropriate circumstances, small public
entities may also rely on the exceptions,
flexibilities, and other mechanisms described
in the section-by-section analysis of
§§ 35.201, 35.202, 35.203, 35.204, and
35.205, which the Department believes
should help make compliance feasible for
those entities.
Some commenters suggested that the
Department should provide additional
exceptions or flexibilities to small public
entities. For example, the Small Business
Administration suggested that the
103 See, e.g., NORC Walsh Ctr. for Rural Health
Analysis & Rural Health Info. Hub, Access to Care
for Rural People with Disabilities Toolkit (Dec.
2016), https://www.ruralhealthinfo.org/toolkits/
disabilities.pdf [https://perma.cc/YX4E-QWEE].
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Department explore developing a wholesale
exception to subpart H of this part for certain
small public entities. The Department does
not believe that setting forth a wholesale
exception for small public entities would be
appropriate for the same reasons that it
would not be appropriate to adopt a different
technical standard for those entities. Such an
exception would mean that an individual
with a disability who lives in a small, rural
area, might not have the same level of access
to their local government’s web-based
services, programs, and activities as an
individual with a disability in a larger, urban
area. This would significantly undermine
consistency and predictability in web
accessibility. It would also be particularly
problematic given the interconnected nature
of many different websites. Furthermore, an
exception for small public entities would
reduce the benefits of subpart H of this part
for those entities. The Department has heard
from public entities seeking clarity about
how to comply with their nondiscrimination
obligations under title II of the ADA when
offering services via the web. Promulgating
an exception for small public entities from
the technical standard described in subpart H
would not only hinder access for individuals
with disabilities but would also leave those
entities with no clear standard for how to
satisfy their existing obligations under the
ADA and the title II regulation.
Other commenters made alternative
suggestions, such as making WCAG 2.1 Level
AA compliance recommended but not
required. The Department does not believe
this suggestion is workable or appropriate. As
discussed in the section entitled,
‘‘Inadequacy of Voluntary Compliance with
Technical Standards,’’ and as the last few
decades have shown, the absence of a
mandatory technical standard for web
content and mobile apps has not resulted in
widespread equal access for people with
disabilities. For subpart H of this part to have
a meaningful effect, the Department believes
it must set forth specific requirements so that
both individuals with disabilities and public
entities have clarity and predictability in
terms of what the law requires. The
Department believes that creating a
recommended, non-mandatory technical
standard would not provide this clarity or
predictability and would instead largely
maintain the status quo.
Some commenters suggested that the
Department should allow small public
entities to avoid making their web content
and mobile apps accessible by instead
offering services to individuals with
disabilities via the phone, providing an
accessibility disclaimer or statement, or
offering services to individuals with
disabilities through other alternative methods
that are not web-based. As discussed in the
section entitled ‘‘History of the Department’s
Title II Web-Related Interpretation and
Guidance’’ and in the NPRM,104 given the
way the modern web has developed, the
Department no longer believes 24/7 staffed
telephone lines can realistically provide
equal opportunity to individuals with
disabilities in the way that web content and
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content in mobile apps can. If a public entity
provides services, programs, or activities to
the public via the web or mobile apps, it
generally needs to ensure that those services,
programs, or activities are accessible. The
Department also does not believe that
requirement is met by a public entity merely
providing an accessibility disclaimer or
statement explaining how members of the
public can request accessible web content or
mobile apps. If none of a public entity’s web
content or mobile apps were to conform to
the technical standard adopted in subpart H
of this part, individuals with disabilities
would need to request access each and every
time they attempted to interact with the
public entity’s services, programs, or
activities, which would not provide equal
opportunity. Similarly, it would not provide
equal opportunity to offer services, programs,
or activities via the web or mobile apps to
individuals without disabilities but require
individuals with disabilities to rely
exclusively on other methods to access those
services.
Many commenters also asked the
Department to provide additional resources
and guidance to help small entities comply.
The Small Business Administration Office of
Advocacy also highlighted the need for the
Department to produce a small entity
compliance guide.105 The Department plans
to issue the required small entity compliance
guide. The Department is also issuing a Final
Regulatory Flexibility Analysis as part of this
rulemaking, which explains the impact of
subpart H of this part on small public
entities. In addition, although the
Department does not currently operate a
grant program to assist public entities in
complying with the ADA, the Department
will consider offering additional technical
assistance and guidance in the future to help
entities better understand their obligations.
The Department also operates a toll-free ADA
Information Line at (800) 514–0301 (voice) or
1–833–610–1264 (TTY), which public
entities can call to get technical assistance
about the ADA, including information about
subpart H.
Many commenters also expressed concern
about the potential for an increase in
litigation for small public entities as a result
of subpart H of this part. Some commenters
asked the Department to create a safe harbor
or other flexibilities to protect small public
entities from frivolous litigation. In part to
address these concerns, subpart H includes a
new section, at § 35.205, which states that a
public entity that is not in full compliance
with the requirements of § 35.200(b) will be
deemed to have met the requirements of
§ 35.200 in the limited circumstance in
which the public entity can demonstrate that
the noncompliance has such a minimal
impact on access that it would not affect the
ability of individuals with disabilities to use
the public entity’s web content or mobile app
in a substantially equivalent manner as
individuals without disabilities. As
discussed at more length in the section-bysection analysis of § 35.205, the Department
105 See Contract with America Advancement Act
of 1996, Public Law 104–121, sec. 212, 110 Stat.
847, 858 (5 U.S.C. 601 note).
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believes this provision will reduce the risk of
litigation for public entities while ensuring
that individuals with disabilities have
substantially equivalent access to public
entities’ services, programs, and activities.
Section 35.205 will allow public entities to
avoid falling into noncompliance with
§ 35.200 if they are not exactly in
conformance to WCAG 2.1 Level AA, but the
nonconformance would not affect the ability
of individuals with disabilities to use the
public entity’s web content or mobile app
with substantially equivalent timeliness,
privacy, independence, and ease of use. The
Department believes that this will afford
more flexibility for all public entities,
including small ones, while simultaneously
ensuring access for individuals with
disabilities.
One commenter asked the Department to
state that public entities, including small
ones, that are working towards conformance
to WCAG 2.1 Level AA before the
compliance dates are in compliance with the
ADA and not engaging in unlawful
discrimination. The Department notes that
while the requirement to comply with the
technical standard set forth in subpart H of
this part is new, the underlying obligation to
ensure that all services, programs, and
activities, including those provided via the
web and mobile apps, are accessible is not.106
Title II currently requires public entities to,
for example, provide equal opportunity to
participate in or benefit from services,
programs, or activities; 107 make reasonable
modifications to policies, practices, or
procedures; 108 and ensure that
communications with people with
disabilities are as effective as
communications with others, which includes
considerations of timeliness, privacy, and
independence.109 Accordingly, although
public entities do not need to comply with
subpart H until two or three years after the
publication of the final rule, they will
continue to have to take steps to ensure
accessibility in the meantime, and will
generally have to achieve compliance with
the technical standard by the date specified
in subpart H.
Some commenters asked the Department to
provide additional flexibility for small public
entities with respect to captioning
requirements. A discussion of the approach
to captioning in subpart H of this part can be
found in the section entitled ‘‘Captions for
Live-Audio and Prerecorded Content.’’ Some
commenters also expressed that it would be
helpful for small entities if the Department
could provide additional guidance on how
the undue burdens limitation operates in
practice. Additional information on this issue
can be found in the section-by-section
analysis of § 35.204, entitled ‘‘Duties.’’ Some
commenters asked the Department to add a
notice-and-cure provision to subpart H to
help protect small entities from liability. For
the reasons discussed in the section-bysection analysis of § 35.205, entitled ‘‘Effect
of noncompliance that has a minimal impact
106 See,
e.g., §§ 35.130 and 35.160.
35.130(b)(1)(ii) and 35.160(b)(1).
108 Section 35.130(b)(7)(i).
109 Section 35.160.
107 Sections
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on access,’’ the Department does not believe
this approach is appropriate.
Special District Governments
In addition to small public entities,
§ 35.200(b)(2) also covers public entities that
are special district governments. As
previously noted, special district
governments are governments that are
authorized to provide a single function or a
limited number of functions, such as a
zoning or transit authority. As discussed
elsewhere in this appendix, § 35.200
proposes different compliance dates
according to the size of the Census-defined
population of the public entity, or, for public
entities without Census-defined populations,
the Census-defined population of any State
or local governments of which the public
entity is an instrumentality or commuter
authority. The Department believes applying
to special district governments the same
compliance date as small public entities (i.e.,
compliance in three years) is appropriate for
two reasons. First, because the Census
Bureau does not provide population
estimates for special district governments,
these limited-purpose public entities might
find it difficult to obtain population
estimates that are objective and reliable in
order to determine their duties under subpart
H of this part. Though some special district
governments may estimate their total
populations, these entities may use varying
methodology to calculate population
estimations, which may lead to confusion
and inconsistency in the application of the
compliance dates in § 35.200. Second,
although special district governments may
sometimes serve a large population, unlike
counties, cities, or townships with large
populations that provide a wide range of
online government services and programs
and often have large and varying budgets,
special district governments are authorized to
provide a single function or a limited number
of functions (e.g., to provide mosquito
abatement or water and sewer services). They
therefore may have more limited or
specialized budgets. Therefore, § 35.200(b)(2)
extends the deadline for compliance for
special district governments to three years, as
it does for small public entities.
The Department notes that some
commenters opposed giving special district
governments three years to comply with
subpart H of this part. One commenter
asserted that most special district
governments are aware of the size of the
regions they serve and would be able to
determine whether they fall within the
threshold for small entities. One commenter
noted that some special district governments
may serve larger populations and should
therefore be treated like large public entities.
Another commenter argued that a public
entity that has sufficient administrative and
fiscal autonomy to qualify as a separate
government should have the means to
comply with subpart H in a timely manner.
However, as noted in the preceding
paragraph, the Department is concerned that,
because these special district governments do
not have a population calculated by the
Census Bureau and may not be
instrumentalities of a public entity that does
have a Census-calculated population, it is not
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clear that there is a straightforward way for
these governments to calculate their precise
population. The Department also
understands that these governments have
limited functions and may have particularly
limited or constrained budgets in some cases.
The Department therefore continues to
believe it is appropriate to give these
governments three years to comply.
Compliance Time Frame Alternatives
In addition to asking that the compliance
time frames be lengthened or shortened,
commenters also suggested a variety of other
alternatives and models regarding how
§ 35.200’s compliance time frames could be
structured. Commenters proposed that
existing content be treated differently than
new content by, for example, requiring that
new content be made accessible first and
setting delayed or deferred compliance time
frames for existing content. Other
commenters suggested that the Department
use a ‘‘runway’’ or ‘‘phase in’’ model. Under
this model, commenters suggested, the
Department could require conformance to
some WCAG success criteria sooner than
others. Commenters also suggested a phasein model where public entities would be
required to prioritize certain types of content,
such as making all frequently used content
conform to WCAG 2.1 Level AA first.
Because § 35.200 gives public entities two
or three years to come into compliance
depending on entity size, public entities have
the flexibility to structure their compliance
efforts in the manner that works best for
them. This means that if public entities want
to prioritize certain success criteria or
content during the two or three years before
the compliance date—while still complying
with their existing obligations under title II—
they have the flexibility to do so. The
Department believes that this flexibility
appropriately acknowledges that different
public entities might have unique needs
based on the type of content they provide,
users that they serve, and resources that they
have or procure. The Department, therefore,
is not specifying certain criteria or types of
content that should be prioritized. Public
entities have the flexibility to determine how
to make sure they comply with § 35.200 in
the two- or three-year period before which
compliance with § 35.200 is first required.
After the compliance date, ongoing
compliance is required.
In addition, the Department believes that
requiring only new content to be accessible
or using another method for prioritization
could lead to a significant accessibility gap
for individuals with disabilities if public
entities rely on content that is not regularly
updated or changed. The Department notes
that unless otherwise covered by an
exception, subpart H of this part requires that
new and existing content be made accessible
within the meaning of § 35.200 after the date
initial compliance is required. Because some
exceptions in § 35.201 only apply to
preexisting content, the Department believes
it is likely that public entities’ own newly
created or added content will largely need to
comply with § 35.200 because such content
may not qualify for exceptions. For more
information about how the exceptions under
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§ 35.201 function and how they will likely
apply to existing and new content, please
review the analysis of § 35.201 in this
section-by-section analysis.
Commenters also suggested that public
entities be required to create transition plans
like those discussed in the existing title II
regulation at §§ 35.105 and 35.150(d). The
Department does not believe it is appropriate
to require transition plans as part of subpart
H of this part for several reasons. Public
entities are already required to ensure that
their services, programs, and activities,
including those provided via the web or
mobile apps, meet the requirements of the
ADA. The Department expects that many
entities already engage in accessibility
planning and self-evaluation to ensure
compliance with title II. By not being
prescriptive about the type of planning
required, the Department will allow public
entities flexibility to build on existing
systems and processes or develop new ones
in ways that work for each entity. Moreover,
the Department has not adopted new selfevaluation and transition plan requirements
in other sections in this part in which it
adopted additional technical requirements,
such as in the 2010 ADA Standards for
Accessible Design.110 Finally, the
Department believes that public entities’
resources may be better spent making their
web content and mobile apps accessible
under § 35.200, instead of drafting required
self-evaluation and transition plans. The
Department notes that public entities can still
engage in self-evaluation and create
transition plans, and would likely find it
helpful, but they are not required to do so
under § 35.200.
Fundamental Alteration or Undue Financial
and Administrative Burdens
As discussed at greater length in the
section-by-section analysis of § 35.204,
subpart H of this part provides that where a
public entity can demonstrate that
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 only
required to the extent that it does not result
in a fundamental alteration or undue
financial and administrative burdens. For
example, where it would impose undue
financial and administrative burdens to
conform to WCAG 2.1 Level AA (or part of
WCAG 2.1 Level AA), public entities would
not be required to remove their web content
and mobile apps, forfeit their web presence,
or otherwise undertake changes that would
be unduly financially and administratively
burdensome. These limitations on a public
entity’s duty to comply with the regulatory
provisions in subpart H of this part mirror
the fundamental alteration or undue burdens
limitations currently provided in the title II
regulation in §§ 35.150(a)(3) (existing
facilities) and 35.164 (effective
communication) and the fundamental
alteration limitation currently provided in
the title II regulation in § 35.130(b)(7)
(reasonable modifications in policies,
practices, or procedures).
110 Section
35.151.
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If a public entity believes that a proposed
action would fundamentally alter a service,
program, or activity or would result in undue
financial and administrative burdens, the
public entity has the burden of proving that
compliance would result in such an
alteration or such burdens. The decision that
compliance would result in such an
alteration or such burdens must be made by
the head of the public entity or their designee
after considering all resources available for
use in the funding and operation of the
service, program, or activity, and must be
accompanied by a written statement of the
reasons for reaching that conclusion. As set
forth in § 35.200(b)(1) and (2), if an action
required to comply with the accessibility
standard in subpart H of this part would
result in such an alteration or such burdens,
a public entity must take any other action
that would not result in such an alteration or
such burdens but would nevertheless ensure
that, to the maximum extent possible,
individuals with disabilities receive the
benefits or services provided by the public
entity. Section 35.204, entitled ‘‘Duties,’’ lays
out the circumstances in which an alteration
or such burdens can be claimed. For more
information, see the discussion regarding
limitations on obligations in the section-bysection analysis of § 35.204.
Requirements for Selected Types of Content
In the NPRM, the Department asked
questions about the standards that should
apply to two particular types of content:
social media platforms and captions for liveaudio content.111 In this section, the
Department includes information about the
standards that subpart H of this part applies
to these types of content and responds to the
comments received on these topics.
Public Entities’ Use of Social Media
Platforms
Public entities are increasingly using social
media platforms to provide information and
communicate with the public about their
services, programs, or activities in lieu of or
in addition to engaging the public on the
public entities’ own websites. Consistent
with the NPRM, the Department is using the
term ‘‘social media platforms’’ to refer to
websites or mobile apps of third parties
whose primary purpose is to enable users to
create and share content in order to
participate in social networking (i.e., the
creation and maintenance of personal and
business relationships online through
websites and mobile apps like Facebook,
Instagram, X (formerly Twitter), and
LinkedIn).
Subpart H of this part requires that web
content and mobile apps that public entities
provide or make available, directly or
through contractual, licensing, or other
arrangements, be made accessible within the
meaning of § 35.200. This requirement
applies regardless of whether that content is
located on the public entity’s own website or
mobile app or elsewhere on the web or in
mobile apps. The requirement therefore
covers web content or content in a mobile
app that a public entity makes available via
111 88
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a social media platform. With respect to
social media posts that are posted before the
compliance date, however, the Department
has decided to add an exception, which is
explained more in the section-by-section
analysis of § 35.201(e), ‘‘Preexisting Social
Media Posts’’.
Many social media platforms that are
widely used by members of the public are
available to members of the public separate
and apart from any arrangements with public
entities to provide a service, program, or
activity. As a result, subpart H of this part
does not require public entities to ensure that
such platforms themselves conform to WCAG
2.1 Level AA. However, because the posts
that public entities disseminate through
those platforms are provided or made
available by the public entities, the posts
generally must conform to WCAG 2.1 Level
AA. The Department understands that social
media platforms often make available certain
accessibility features like the ability to add
captions or alt text. It is the public entity’s
responsibility to use these features when it
makes web content available on social media
platforms.112 For example, if a public entity
posts an image to a social media platform
that allows users to include alt text, the
public entity needs to ensure that appropriate
alt text accompanies that image so that
screen-reader users can access the
information.
The Department received many comments
explaining the importance of social media to
accessing public entities’ services, programs,
or activities. Both public entities and
disability advocates shared many examples
of public entities using social media to
transmit time-sensitive and emergency
information, among other information, to the
public. The vast majority of these
commenters supported covering social media
posts in subpart H of this part. Commenters
specifically pointed to examples of
communications designed to help the public
understand what actions to take during and
after public emergencies, and commenters
noted that these types of communications
need to be accessible to individuals with
disabilities. Commenters from public entities
and trade groups representing public
accommodations opposed the coverage of
social media posts in subpart H, arguing that
social media is more like advertising. These
commenters also said it is difficult to make
social media content accessible because the
platforms sometimes do not enable
accessibility features.
The Department agrees with the many
commenters who opined that social media
posts should be covered by subpart H of this
part. The Department believes public entities
should not be relieved from their duty under
subpart H to provide accessible content to the
public simply because that content is being
provided through a social media platform.
The Department was particularly persuaded
by the many examples that commenters
shared of emergency and time-sensitive
communications that public entities share
112 See U.S. Gen. Servs. Admin., Federal Social
Media Accessibility Toolkit Hackpad, https://
digital.gov/resources/federal-social-mediaaccessibility-toolkit-hackpad/ [https://perma.cc/
DJ8X-UCHA] (last visited Mar. 13, 2024).
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through social media platforms, including
emergency information about toxic spills and
wildfire smoke, for example. The Department
believes that this information must also be
accessible to individuals with disabilities.
The fact that public entities use social media
platforms to disseminate this type of crucial
information also belies any analogy to
advertising. And even to the extent that
information does not rise to the level of an
emergency, if an entity believes information
is worth posting on social media for members
of the public without disabilities, it is no less
important for that information to reach
members of the public with disabilities.
Therefore, the entity cannot deny individuals
with disabilities equal access to that content,
even if it is not about an emergency.
The Department received several
comments explaining that social media
platforms sometimes have limited
accessibility features, which can be out of
public entities’ control. Some of these
commenters suggested that the Department
should prohibit or otherwise limit a public
entity’s use of inaccessible social media
platforms when the public entity cannot
ensure accessibility of the platform. Other
commenters shared that even where there are
accessibility features available, public
entities frequently do not use them. The most
common example of this issue was public
entities failing to use alt text, and some
commenters also shared that public entities
frequently use inaccessible links. Several
commenters also suggested that the
Department should provide that where the
same information is available on a public
entity’s own accessible website, public
entities should be considered in compliance
with this part even if their content on social
media platforms cannot be made entirely
accessible.
The Department declines to modify subpart
H of this part in response to these
commenters, because the Department
believes the framework in subpart H balances
the appropriate considerations to ensure
equal access to public entities’ postings to
social media. Public entities must use
available accessibility features on social
media platforms to ensure that their social
media posts comply with subpart H.
However, where public entities do not
provide social media platforms as part of
their services, programs, or activities, they do
not need to ensure the accessibility of the
platform as a whole. Finally, the Department
is declining to adopt the alternative
suggested by some commenters that where
the same information is available on a public
entity’s own accessible website, the public
entity should be considered in compliance
with subpart H. The Department heard
concerns from many commenters about
allowing alternative accessible versions when
the original content itself can be made
accessible. Disability advocates and
individuals with disabilities shared that this
approach has historically resulted in
inconsistent and dated information on the
accessible version and that this approach also
creates unnecessary segregation between the
content available for individuals with
disabilities and the original content. The
Department agrees with these concerns and
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therefore declines to adopt this approach.
Social media posts enable effective outreach
from public entities to the public, and in
some cases social media posts may reach
many more people than a public entity’s own
website. The Department sees no acceptable
reason why individuals with disabilities
should be excluded from this outreach.
The Department received a few other
comments related to social media, suggesting
for example that the Department adopt
guidance on making social media accessible
instead of covering social media in subpart
H of this part, and suggesting that the
Department require inclusion of a disclaimer
with contact information on social media
platforms so that the public can notify a
public entity about inaccessible content. The
Department believes that these proposals
would be difficult to implement in a way that
would ensure content is proactively made
accessible, rather than reactively corrected
after it is discovered to be inaccessible, and
thus the Department declines to adopt these
proposals.
Captions for Live-Audio and Prerecorded
Content
WCAG 2.1 Level AA Success Criterion
1.2.4 requires captions for live-audio content
in synchronized media.113 The intent of this
success criterion is to ‘‘enable people who
are deaf or hard of hearing to watch real-time
presentations. Captions provide the part of
the content available via the audio track.
Captions not only include dialogue, but also
identify who is speaking and notate sound
effects and other significant audio.’’ 114
Modern live captioning often can be created
with the assistance of technology, such as by
assigning captioners through Zoom or other
conferencing software, which integrates
captioning with live meetings.
As proposed in the NPRM,115 subpart H of
this part applies the same compliance dates
(determined primarily by size of public
entity) to all of the WCAG 2.1 Level AA
success criteria, including live-audio
captioning requirements. As stated in
§ 35.200(b), this provides three years after
publication of the final rule for small public
entities and special district governments to
comply, and two years for large public
entities. Subpart H takes this approach for
several reasons. First, the Department
understands that live-audio captioning
technology has developed in recent years and
continues to develop. In addition, the
COVID–19 pandemic moved a significant
number of formerly in-person meetings,
activities, and other gatherings to online
settings, many of which incorporated liveaudio captioning. As a result of these
developments, live-audio captioning has
become even more critical for individuals
with certain types of disabilities to
participate fully in civic life. Further, the
Department believes that requiring
conformance to all success criteria by the
113 W3C, Understanding WCAG 2.0: Captions
(Live), Understanding SC 1.2.4 (2023), https://
www.w3.org/TR/UNDERSTANDING-WCAG20/
media-equiv-real-time-captions.html [https://
perma.cc/NV74-U77R].
114 Id. (emphasis in original).
115 88 FR 51965–51966.
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same date (according to entity size) will
address the need for both clarity for public
entities and predictability for individuals
with disabilities. As with any other success
criterion, public entities would not be
required to satisfy Success Criterion 1.2.4 if
they can demonstrate that doing so would
result in a fundamental alteration in the
nature of a service, program, or activity or in
undue financial and administrative burdens.
The Department solicited comments to
inform this approach, seeking input on the
proposed compliance timeline, the type of
live-audio content that entities make
available through the web or mobile apps,
and the cost of providing captioning for liveaudio content for entities of all sizes.116
Commenters expressed strong support for
requiring captions as a general matter, noting
that they benefit people with a variety of
disabilities, including those who are deaf,
deafblind, or neurodivergent, or have
auditory processing disabilities. No
commenters argued for an outright exception
to the captioning requirement. The vast
majority of commenters who responded to
these questions, including disability
advocates, public entities, and accessible
technology industry members, agreed with
the Department’s proposal to require
compliance with requirements for captioning
live-audio content on the same timeline as all
other WCAG 2.1 Level AA success criteria.
Such commenters noted that a different
compliance timeline for live-audio
captioning would unfairly burden people
who are deaf or have hearing loss and would
limit their access to a wide swath of content.
One commenter who had worked in higher
education, for instance, noted challenges of
providing live-audio captioning, including
the limited number of captioners available
and resulting need for lead time to reserve
one, but nonetheless stated that entities
should strive for the same compliance date.
A smaller number of commenters urged the
Department to adopt a longer compliance
time frame in order to allow live-captioning
technology to develop further. Some of these
commenters supported a longer time frame
for smaller entities in particular, which may
have fewer resources or budgetary flexibility
to comply. Others supported a longer time
frame for larger entities because they are
likely to have more content to caption.
Commenters also noted the difficulty that
public entities sometimes encounter in the
availability of quality professional live
captioners and the lead time necessary to
reserve those services, but at the same time
noted that public entities do not necessarily
want to rely on automatically generated
captioning in all scenarios because it may be
insufficient for an individual’s needs.
Commenters shared that public entities
make many types of live-audio content
available, including town hall meetings,
board meetings, and other public engagement
meetings; emergency-related and publicservice announcements or information;
special events like graduations, conferences,
or symposia; online courses; and press
conferences. Commenters also posed
questions about whether Success Criterion
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1.2.4 would apply to particular situations
and types of media. The Department suggests
referring to the explanation and definitions of
the terms in Success Criterion 1.2.4 in WCAG
2.1 to determine the live-audio web content
and content in mobile apps that must have
captions.
Success Criterion 1.2.4 is crucial for
individuals with disabilities to access State
and local government entities’ live services,
programs, or activities. The Department
believes that setting a different compliance
date would only delay this essential access
and leave people who are deaf or have
hearing disabilities at a particular
disadvantage in accessing these critical
services. It also would hinder access for
people with a variety of other disabilities,
including cognitive disabilities.117
The Department believes that the
compliance dates set forth in subpart H of
this part will give public entities sufficient
time to locate captioning resources and
implement or enhance processes to ensure
they can get captioning services when
needed. Captioning services are also likely to
continue to expand. Given the quick
acceleration in the availability of captioning
technology during the COVID–19 pandemic,
the Department believes that public entities’
capacity as well as the technology and
personnel on which they rely will be able to
continue to develop quickly.
The Department declines to establish a
different compliance time frame for Success
Criterion 1.2.4 for other reasons as well. This
success criterion in WCAG 2.1 was also part
of WCAG 2.0, which was finalized in 2008.
As a result, the Department expects that
public entities and associated web
developers will be able to become familiar
with it quickly, if they are not already
familiar. Additionally, setting a separate
compliance date for one success criterion
could result in confusion and additional
difficulty, as covered entities would need to
separately keep track of when they need to
meet the live-audio captioning success
criterion and bifurcate their compliance
planning. The Department also does not see
a sufficient reason to distinguish this success
criterion from others as meriting a separate
timeline, particularly when this criterion has
existed since 2008 and is so essential for
individuals who are deaf or have hearing
disabilities. For these reasons, and because of
the need for individuals with disabilities to
access State and local government entities’
live programs, services, and activities,
subpart H of this part establishes a uniform
compliance date for all success criteria in
subpart H.
Commenters also expressed a range of
opinions about whether using automatically
generated captions instead of professional
live-captioning services would be sufficient
to comply with Success Criterion 1.2.4.
These commenters noted that automatic
captions are a widely available option that is
117 See
W3C, Web Accessibility Initiative, Video
Captions, https://www.w3.org/WAI/perspectivevideos/captions/ [https://perma.cc/QW6X-5SPG]
(Jan. 23, 2019) (explaining that captions benefit
‘‘people with cognitive and learning disabilities
who need to see and hear the content to better
understand it’’).
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low cost for public entities and will likely
continue to improve, perhaps eventually
surpassing the quality of professional livecaptioning services. However, commenters
also pointed out that automatic captions may
not be sufficient in many contexts such as
virtual classrooms or courtrooms, where
mistakes in identifying a speaker, word, or
punctuation can significantly change the
meaning and the participant with a disability
needs to be able to respond in real time.
Commenters also argued, though, that
requiring human captioners in all
circumstances may lead to public entities
making fewer meetings, hearings, courses,
and other live-audio content available online
due to cost and availability of captioners,
which could have a detrimental effect on
overall access to these services for people
with mobility and other disabilities. Public
entities noted that automatic captioning as
part of services like Zoom does not cost them
anything beyond the Zoom license, but
public entities and the Small Business
Administration reported that costs can be
much higher for human-generated captions
for different types of content over the course
of a year.
To balance these competing concerns,
commenters supported requiring captions in
general, but proposed a variety of tiered
approaches such as: a default of humangenerated captions with automatic captions
as a last resort; automatic captions as a
default with human-generated captions when
an individual with a disability requests them;
or human-generated captions as a default for
events with a wide audience like
graduations, but automatic captions as a
default for private meetings and courses,
unless human-generated captions are
requested. An accessible technology industry
member urged the Department to just require
captions that provide ‘‘equivalent access’’ to
live-audio content, rather than mandate a
particular type of captioning.
After consideration of commenters’
concerns and its independent assessment, the
Department does not believe it is prudent to
prescribe captioning requirements beyond
the WCAG 2.1 Level AA requirements,
whether by specifying a numerical accuracy
standard, a method of captioning that public
entities must use to satisfy this success
criterion, or other measures. The Department
recognizes commenters’ concerns that
automatic captions are currently not
sufficiently accurate in many contexts,
including contexts involving technical or
complex issues. The Department also notes
that informal guidance from W3C provides
that automatic captions are not sufficient on
their own unless they are confirmed to be
fully accurate, and that they generally require
editing to reach the requisite level of
accuracy.118 On the other hand, the
Department recognizes the significant costs
and supply challenges that can accompany
use of professional live-captioning services,
and the pragmatic concern that a requirement
to use these services for all events all the
118 W3C, Web Accessibility Initiative, Captions/
Subtitles, https://www.w3.org/WAI/media/av/
captions [https://perma.cc/D73P-RBZA] (July 14,
2022).
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time could discourage public entities from
conducting services, programs, or activities
online, which could have unintended
detrimental consequences for people with
and without disabilities who benefit from
online offerings. Further, it is the
Department’s understanding, supported by
comments, that captioning technology is
rapidly evolving and any additional
specifications regarding how to meet WCAG
2.1’s live-audio captioning requirements
could quickly become outdated.
Rather than specify a particular accuracy
level or method of satisfying Success
Criterion 1.2.4 at this time, subpart H of this
part provides public entities with the
flexibility to determine the best way to
comply with this success criterion based on
current technology. The Department further
encourages public entities to make use of
W3C’s and others’ guidance documents
available on captioning, including the
informal guidance mentioned in the
preceding paragraph.119 In response to
commenters’ concerns that captioning
requirements could lead to fewer online
events, the Department reminds public
entities that, under § 35.204, they are not
required to take any action that would result
in a fundamental alteration to their services,
programs, or activities or undue financial and
administrative burdens; but even in those
circumstances, public entities must comply
with § 35.200 to the maximum extent
possible. The Department believes the
approach in subpart H strikes the appropriate
balance of increasing access for individuals
with disabilities, keeping pace with evolving
technology, and providing a workable
standard for public entities.
Some commenters expressed similar
concerns related to captioning requirements
for prerecorded (i.e., non-live) content under
Success Criterion 1.2.2, including concerns
that public entities may choose to remove
recordings of past events such as public
hearings and local government sessions
rather than comply with captioning
requirements in the required time frames.
The Department recommends that public
entities consider other options that may
alleviate costs, such as evaluating whether
any exceptions apply, depending on the
particular circumstances. And as with liveaudio captioning, public entities can rely on
the fundamental alteration or undue burdens
provisions in § 35.204 where they can satisfy
the requirements of those provisions. Even
where a public entity can demonstrate that
conformance to Success Criterion 1.2.2
would result in a fundamental alteration or
undue financial and administrative burdens,
the Department believes public entities may
often be able to take other actions that do not
result in such an alteration or such burdens;
if they can, § 35.204 requires them to do so.
The same reasoning discussed regarding
Success Criterion 1.2.4 also applies to
119 E.g., W3C, Web Accessibility Initiative,
Captions/Subtitles, https://www.w3.org/WAI/
media/av/captions [https://perma.cc/D73P-RBZA]
(July 14, 2022); W3C, WCAG 2.2 Understanding
Docs: Understanding SC 1.2.4: Captions (Live)
(Level AA), https://www.w3.org/WAI/WCAG22/
Understanding/captions-live.html [https://
perma.cc/R8SZ-JA6Z] (Mar. 7, 2024).
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Success Criterion 1.2.2. The Department
declines to adopt a separate timeline for this
success criterion or to prescribe captioning
requirements beyond those in WCAG 2.1 due
to rapidly evolving technology, the
importance of these success criteria, and the
other factors already noted. After full
consideration of all the comments received,
subpart H of this part requires conformance
to WCAG 2.1 Level AA as a whole on the
same compliance time frame, for all of the
reasons stated in this section.
Section 35.201 Exceptions
Section 35.200 requires public entities to
make their web content and mobile apps
accessible by complying with a technical
standard for accessibility—WCAG 2.1 Level
AA. However, some types of content do not
have to comply with the technical standard
in certain situations. The Department’s aim
in setting forth exceptions was to make sure
that individuals with disabilities have ready
access to public entities’ web content and
mobile apps, especially those that are
current, commonly used, or otherwise widely
needed, while also ensuring that practical
compliance with subpart H of this part is
feasible and sustainable for public entities.
The exceptions help to ensure that
compliance with subpart H is feasible by
enabling public entities to focus their
resources on making frequently used or high
impact content WCAG 2.1 Level AA
compliant first.
Under § 35.201, the following types of
content generally do not need to comply with
the technical standard for accessibility—
WCAG 2.1 Level AA: (1) archived web
content; (2) preexisting conventional
electronic documents, unless they are
currently used to apply for, gain access to, or
participate in the public entity’s services,
programs, or activities; (3) content posted by
a third party; (4) individualized, passwordprotected or otherwise secured conventional
electronic documents; and (5) preexisting
social media posts. The Department notes
that if web content or content in mobile apps
is covered by one exception, the content does
not need to conform to WCAG 2.1 Level AA
to comply with subpart H of this part, even
if the content fails to qualify for another
exception.
However, as discussed in more detail later
in this section-by-section analysis, there may
be situations in which the content otherwise
covered by an exception must still be made
accessible to meet the needs of an individual
with a disability under existing title II
requirements.120 Because these exceptions
are specifically tailored to address what the
Department understands to be existing areas
where compliance might be particularly
difficult based on current content types and
technologies, the Department also expects
that these exceptions may become less
relevant over time as new content is added
and technology changes.
The previously listed exceptions are those
included in § 35.201. They differ in some
respects from those exceptions proposed in
the NPRM. The Department made changes to
the proposed exceptions identified in the
NPRM after consideration of the public
comments and its own independent
assessment. Notably, § 35.201 does not
include exceptions for password-protected
course content in elementary, secondary, and
postsecondary schools, which had been
proposed in the NPRM.121 As will be
discussed in more detail, it also does not
include an exception for linked third-party
content because that proposed exception
would have been redundant and could have
caused confusion. In the NPRM, the
Department discussed the possibility of
including an exception for public entities’
preexisting social media posts.122 After
consideration of public feedback, § 35.201
includes such an exception. In addition, the
Department made some technical tweaks and
clarifications to the exceptions.123
The Department heard a range of views
from public commenters on the exceptions
proposed in the NPRM. The Department
heard from some commenters that exceptions
are necessary to avoid substantial burdens on
public entities and would help public
entities determine how to allocate their
limited resources in terms of which content
to make accessible more quickly, especially
when initially determining how best to
ensure they can start complying with
§ 35.200 by the compliance date. The
Department heard that public entities often
have large volumes of content that are
archived, or documents or social media posts
that existed before subpart H of this part was
promulgated. The Department also heard that
although making this content available
online is important for transparency and ease
of access, this content is typically not
frequently used and is likely to be of interest
only to a discrete population. Such
commenters also emphasized that making
such content, like old PDFs, accessible by the
compliance date would be quite difficult and
time consuming. Some commenters also
expressed that the exceptions may help
public entities avoid uncertainty about
whether they need to ensure accessibility in
situations where it might be extremely
difficult—such as for large quantities of
archived materials retained only for research
purposes or where they have little control
over content posted to their website by
unaffiliated third parties. Another
commenter noted that public entities may
have individualized documents that apply
only to individual members of the public and
that in most cases do not need to be accessed
by a person with a disability.
On the other hand, the Department has also
heard from commenters who objected to the
inclusion of exceptions. Many commenters
who objected to the inclusion of exceptions
cited the need for all of public entities’ web
content and mobile apps to be accessible to
better ensure predictability and access for
individuals with disabilities to critical
government services. Some commenters who
opposed including exceptions also asserted
that a title II regulation need not include any
exceptions to its specific requirements
because the compliance limitation for undue
121 88
FR 52019.
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123 Id. at 52019–52020.
122 Id.
120 See
§§ 35.130(b)(1)(ii) and (b)(7) and 35.160.
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financial and administrative burdens would
suffice to protect public entities from any
overly burdensome requirements. Some
commenters argued that the exceptions
would create loopholes that would result in
public entities not providing sufficient access
for individuals with disabilities, which could
undermine the purpose of subpart H of this
part.
Commenters also contended that the
proposed exceptions create confusion about
what is covered and needs to conform to
WCAG 2.1, which creates difficulties with
compliance for public entities and barriers
for individuals with disabilities seeking to
access public entities’ web content or mobile
apps. Some commenters also noted that there
are already tools that can help public entities
make web content and mobile apps
accessible, such that setting forth exceptions
for certain content is not necessary to help
public entities comply.
After consideration of the various public
comments and after its independent
assessment, the Department is including,
with some refinements, five exceptions in
§ 35.201. As noted in the preceding
paragraphs and as will be discussed in
greater detail, the Department is not
including in the final regulations three of the
exceptions that were proposed in the NPRM,
but the Department is also adding an
exception for preexisting social media posts
that it previewed in the NPRM. The five
particular exceptions included in § 35.201
were crafted with careful consideration of
which discrete types of content would
promote as much clarity and certainty as
possible for individuals with disabilities as
well as for public entities when determining
which content must conform to WCAG 2.1
Level AA, while also still promoting
accessibility of web content and mobile apps
overall. The limitations for actions that
would require fundamental alterations or
result in undue burdens would not provide,
on their own, the same level of clarity and
certainty. The rationales with respect to each
individual exception are discussed in more
detail in the section-by-section analysis of
each exception. The Department believes that
including these five exceptions, and
clarifying situations in which content
covered by an exception might still need to
be made accessible, strikes the appropriate
balance between ensuring access for
individuals with disabilities and feasibility
for public entities so that they can comply
with § 35.200, which will ensure greater
accessibility moving forward.
The Department was mindful of the
pragmatic concern that, should subpart H of
this part require actions that are likely to
result in fundamental alterations or undue
burdens for large numbers of public entities
or large swaths of their content, subpart H
could in practice lead to fewer impactful
improvements for accessibility across the
board as public entities encountered these
limitations. The Department believes that
such a rule could result in public entities’
prioritizing accessibility of content that is
‘‘easy’’ to make accessible, rather than
content that is essential, despite the spirit
and letter of the rule. The Department agrees
with commenters that clarifying that public
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entities do not need to focus resources on
certain content helps ensure that public
entities can focus their resources on the large
volume of content not covered by exceptions,
as that content is likely more frequently used
or up to date. In the sections that follow, the
Department provides explanations for why
the Department has included each specific
exception and how the exceptions might
apply.
The Department understands and
appreciates that including exceptions for
certain types of content reduces the content
that would be accessible at the outset to
individuals with disabilities. The Department
aimed to craft the exceptions with an eye
towards providing exceptions for content that
would be less commonly used by members
of the public and would be particularly
difficult for public entities to make accessible
quickly. And the Department reiterates that
subpart H of this part is adding specificity
into the existing title II regulatory framework
when it comes to web content and mobile
apps. The Department emphasizes that, even
if certain content does not have to conform
to the technical standard, public entities still
need to ensure that their services, programs,
and activities offered using web content and
mobile apps are accessible to individuals
with disabilities on a case-by-case basis in
accordance with their existing obligations
under title II of the ADA. These obligations
include making reasonable modifications to
avoid discrimination on the basis of
disability, ensuring that communications
with people with disabilities are as effective
as communications with people without
disabilities, and providing people with
disabilities an equal opportunity to
participate in or benefit from the entity’s
services, programs, and activities.124 For
example, a public entity might need to
provide a large print version or a version of
an archived document that implements some
WCAG criteria—such as a document
explaining park shelter options and rental
prices from 2013—to a person with vision
loss who requests it, even though this content
would fall within the archived web content
exception. Thus, § 35.201’s exceptions for
certain categories of content are layering
specificity onto title II’s regulatory
requirements. They do not function as
permanent or blanket exceptions to the
ADA’s nondiscrimination mandate. They
also do not add burdens on individuals with
disabilities that did not already exist as part
of the existing title II regulatory framework.
As explained further, nothing in this part
prohibits an entity from going beyond
§ 35.200’s requirements to make content
covered by the exceptions fully or partially
compliant with WCAG 2.1 Level AA.
The following discussion provides
information on each of the exceptions,
including a discussion of public comments.
124 See §§ 35.130(b)(1)(ii) and (b)(7) and 35.160.
For more information about public entities’ existing
obligation to ensure that communications with
individuals with disabilities are as effective as
communications with others, see U.S. Dep’t of Just.,
ADA Requirements: Effective Communication,
ada.gov (Feb 28, 2020), https://www.ada.gov/
resources/effective-communication/ [https://
perma.cc/CLT7-5PNQ].
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Archived Web Content
Public entities may retain a significant
amount of archived content, which may
contain information that is outdated,
superfluous, or replicated elsewhere. The
Department’s understanding is that,
generally, this historic information is of
interest to only a small segment of the
general population. The Department is aware
and concerned, however, that based on
current technologies, public entities would
need to expend considerable resources to
retroactively make accessible the large
quantity of historic or otherwise outdated
information that public entities created in the
past and that they may need or want to make
available on their websites. Thus, § 35.201(a)
provides an exception from the requirements
of § 35.200 for web content that meets the
definition of ‘‘archived web content’’ in
§ 35.104.125 As mentioned previously, the
definition of ‘‘archived web content’’ in
§ 35.104 has four parts. First, the web content
was created before the date the public entity
is required to comply with subpart H of this
part, reproduces paper documents created
before the date the public entity is required
to comply with subpart H, or reproduces the
contents of other physical media created
before the date the public entity is required
to comply with subpart H. Second, the web
content is retained exclusively for reference,
research, or recordkeeping. Third, the web
content is not altered or updated after the
date of archiving. Fourth, the web content is
organized and stored in a dedicated area or
areas clearly identified as being archived.
The archived web content exception allows
public entities to retain historic web content,
while utilizing their resources to make
accessible the most widely and consistently
used content that people need to access
public services or to participate in civic life.
The Department anticipates that public
entities may retain various types of web
content consistent with the exception for
archived web content. For example, a town
might create a web page for its annual
parade. In addition to providing current
information about the time and place of the
parade, the web page might contain a
separate archived section with several photos
or videos from the parade in past years. The
images and videos would likely be covered
by the exception if they were created before
the date the public entity is required to
comply with subpart H of this part, are
reproductions of paper documents created
before the date the public entity is required
to comply with subpart H, or are
reproductions of the contents of other
physical media created before the date the
public entity is required to comply with
subpart H; they are only used for reference,
research, or recordkeeping; they are not
altered or updated after they are posted in the
archived section of the web page; and the
archived section of the web page is clearly
identified. Similarly, a municipal court may
have a web page that includes links to
125 In the NPRM, § 35.201(a) referred to archived
web content as defined in § 35.104 ‘‘of this
chapter.’’ 88 FR 52019. The Department has
removed the language ‘‘of this chapter’’ because it
was unnecessary.
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download PDF documents that contain a
photo and short biography of past judges who
are retired. If the PDF documents were
created before the date the public entity is
required to comply with subpart H, are
reproductions of paper documents created
before the date the public entity is required
to comply with subpart H, or are
reproductions of the contents of other
physical media created before the date the
public entity is required to comply with
subpart H; they are only used for reference,
research, or recordkeeping; they are not
altered or updated after they are posted; and
the web page with the links to download the
documents is clearly identified as being an
archive, the documents would likely be
covered by the exception. The Department
reiterates that these examples are meant to be
illustrative and that the analysis of whether
a given piece of web content meets the
definition of ‘‘archived web content’’
depends on the specific circumstances.
The Department recognizes, and
commenters emphasized, that archived
information may be of interest to some
members of the public, including some
individuals with disabilities, who are
conducting research or are otherwise
interested in these historic documents.
Furthermore, some commenters expressed
concerns that public entities would begin (or
already are in some circumstances)
improperly moving content into an archive.
The Department emphasizes that under this
exception, public entities may not
circumvent their accessibility obligations by
merely labeling their web content as
‘‘archived’’ or by refusing to make accessible
any content that is old. The exception
focuses narrowly on content that satisfies all
four of the criteria necessary to qualify as
‘‘archived web content,’’ namely web content
that was created before the date the public
entity is required to comply with subpart H
of this part, reproduces paper documents
created before the date the public entity is
required to comply with subpart H, or
reproduces the contents of other physical
media created before the date the public
entity is required to comply with subpart H;
is retained exclusively for reference,
research, or recordkeeping; is not altered or
updated after the date of archiving; and is
organized and stored in a dedicated area or
areas clearly identified as being archived. If
any one of those criteria is not met, the
content does not qualify as ‘‘archived web
content.’’ For example, if an entity maintains
content for any purpose other than reference,
research, or recordkeeping, then that content
would not fall within the exception
regardless of the date it was created, even if
an entity labeled it as ‘‘archived’’ or stored
it in an area clearly identified as being
archived. Similarly, an entity would not be
able to circumvent its accessibility
obligations by moving web content
containing meeting minutes or agendas
related to meetings that take place after the
date the public entity is required to comply
with subpart H from a non-archived section
of its website to an archived section, because
such newly created content would likely not
satisfy the first part of the definition based
on the date it was created. Instead, such
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newly created documents would generally
need to conform to WCAG 2.1 Level AA for
their initial intended purpose related to the
meetings, and they would need to remain
accessible if they were later added to an area
clearly identified as being archived.
The Department received comments both
supporting and opposing the exception. In
support of the exception, commenters
highlighted various benefits. For example,
commenters noted that remediating archived
web content can be very burdensome, and
the exception allows public entities to retain
content they might otherwise remove if they
had to make the content conform to WCAG
2.1 Level AA. Some commenters also agreed
that public entities should prioritize making
current and future web content accessible.
In opposition to the exception, commenters
highlighted various concerns. For example,
some commenters stated that the exception
perpetuates unequal access to information for
individuals with disabilities, and it continues
to inappropriately place the burden on
individuals with disabilities to identify
themselves to public entities, request access
to content covered by the exception, and wait
for the request to be processed. Some
commenters also noted that the exception is
not necessary because the compliance
limitations for fundamental alteration and
undue financial and administrative burdens
would protect public entities from any
unrealistic requirements under subpart H of
this part.126 Commenters also stated that the
proposed exception is not timebound; it does
not account for technology that exists, or
might develop in the future, that may allow
for easy and reliable wide-scale remediation
of archived web content; it might deter
development of technology that could
reliably remediate archived web content; and
it does not include a time frame for the
Department to reassess whether the
exception is necessary based on
technological developments.127 In addition,
commenters stated that the exception covers
HTML content, which is easier to make
accessible than other types of web content;
and it might cover archived web content
posted by public entities in accordance with
other laws. As previously discussed with
respect to the definition of ‘‘archived web
content,’’ some commenters also stated that
it is not clear when web content is retained
exclusively for reference, research, or
recordkeeping, and public entities may
therefore improperly designate important
web content as archived.
The Department has decided to keep the
exception in § 35.201. After reviewing the
range of different views expressed by
commenters, the Department continues to
believe that the exception appropriately
encourages public entities to utilize their
resources to make accessible the critical upto-date materials that are most consistently
126 A discussion of the relationship between these
limitations and the exceptions in § 35.201 is also
provided in the general explanation at the
beginning of the discussion of § 35.201 in the
section-by-section analysis.
127 The section-by-section analysis of § 35.200
includes a discussion of the Department’s
obligation to do a periodic retrospective review of
its regulations pursuant to Executive Order 13563.
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used to access public entities’ services,
programs, or activities. The Department
believes the exception provides a measure of
clarity and certainty for public entities about
what is required of archived web content.
Therefore, resources that might otherwise be
spent making accessible large quantities of
historic or otherwise outdated information
available on some public entities’ websites
are freed up to focus on important current
and future web content that is widely and
frequently used by members of the public.
However, the Department emphasizes that
the exception is not without bounds. As
discussed in the preceding paragraphs,
archived web content must meet all four
parts of the archived web content definition
in order to qualify for the exception. Content
must meet the time-based criteria specified in
the first part of the definition. The
Department believes the addition of the first
part of the definition will lead to greater
predictability about the application of the
exception for individuals with disabilities
and public entities. In addition, web content
that is used for something other than
reference, research, or recordkeeping is not
covered by the exception.
The Department understands the concerns
raised by commenters about the burdens that
individuals with disabilities may face
because archived web content is not required
to conform to WCAG 2.1 Level AA. The
Department emphasizes that even if certain
content does not have to conform to the
technical standard, public entities still need
to ensure that their services, programs, and
activities offered using web content are
accessible to individuals with disabilities on
a case-by-case basis in accordance with their
existing obligations under title II. These
obligations include making reasonable
modifications to avoid discrimination on the
basis of disability, ensuring that
communications with people with
disabilities are as effective as
communications with people without
disabilities, and providing people with
disabilities an equal opportunity to
participate in or benefit from the entity’s
services, programs, or activities.128 Some
commenters suggested that the Department
should also specify that if a public entity
makes archived web content conform to
WCAG 2.1 Level AA in response to a request
from an individual with a disability, such as
by remediating a PDF stored in an archived
area on the public entity’s website, the public
entity should replace the inaccessible version
in the archive with the updated accessible
version that was sent to the individual. The
Department agrees that this is a best practice
public entities could implement, but did not
add this to the text of this part because of the
importance of providing public entities
flexibility to meet the needs of individuals
with disabilities on a case-by-case basis.
Some commenters suggested that the
Department should require public entities to
adopt procedures and timelines for how
individuals with disabilities could request
access to inaccessible archived web content
covered by the exception. The Department
declines to make specific changes to the
128 See
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exception in response to these comments.
The Department reiterates that, even if
content is covered by this exception, public
entities still need to ensure that their
services, programs, and activities offered
using web content are accessible to
individuals with disabilities on a case-bycase basis in accordance with their existing
obligations under title II.129 The Department
notes that it is helpful to provide individuals
with disabilities with information about how
to obtain the reasonable modifications or
auxiliary aids and services they may need.
Public entities can help to facilitate effective
communication by providing notice to the
public on how an individual who cannot
access archived web content covered by the
exception because of a disability can request
other means of effective communication or
reasonable modifications in order to access
the public entity’s services, programs, or
activities with respect to the archived
content. Public entities can also help to
facilitate effective communication by
providing an accessibility statement that tells
the public how to bring web content or
mobile app accessibility problems to the
public entities’ attention, and developing and
implementing a procedure for reviewing and
addressing any such issues raised. For
example, a public entity could help to
facilitate effective communication by
providing an email address, accessible link,
accessible web page, or other accessible
means of contacting the public entity to
provide information about issues that
individuals with disabilities may encounter
accessing web content or mobile apps or to
request assistance. Providing this information
will help public entities to ensure that they
are satisfying their obligations to provide
equal access, effective communication, and
reasonable modifications.
Some commenters suggested that this part
should require a way for users to search
through archived web content, or information
about the contents of the archive should
otherwise be provided, so individuals with
disabilities can identify what content is
contained in an archive. Some other
commenters noted that searching through an
archive is inherently imprecise and involves
sifting through many documents, but the
exception places the burden on individuals
with disabilities to know exactly which
archived documents to request in accessible
formats. After carefully considering these
comments, the Department decided not to
change the text of this part. The Department
emphasizes that web content that is not
archived, but instead notifies users about the
existence of archived web content and
provides users access to archived web
content, generally must still conform to
WCAG 2.1 Level AA. Therefore, the
Department anticipates that members of the
public will have information about what
content is contained in an archive. For
example, a public entity’s archive may
include a list of links to download archived
documents. Under WCAG 2.1 Success
Criterion 2.4.4, a public entity would
generally have to provide sufficient
information in the text of the link alone, or
129 Id.
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in the text of the link together with the link’s
programmatically determined link context, so
users could understand the purpose of each
link and determine whether they want to
access a given document in the archive.130
Some commenters suggested that public
entities should ensure that the systems they
use to retain and store archived web content
do not convert the content into an
inaccessible format. The Department does not
believe it is necessary to make updates to this
part in response to these comments. Content
that does not meet the definition of ‘‘archived
web content’’ must generally conform to
WCAG 2.1 Level AA, unless it qualifies for
another exception, so public entities would
not be in compliance with subpart H of this
part if they stored such content using a
system that converts accessible web content
into an inaccessible format. The Department
anticipates that public entities will still move
certain newly created web content into an
archive alongside historic content after the
date they are required to comply with
subpart H, even though the newly created
content will generally not meet the definition
of ‘‘archived web content.’’ For example,
after the time a city is required to comply
with subpart H, the city might post a PDF
flyer on its website identifying changes to the
dates its sanitation department will pick up
recycling around a holiday. After the date of
the holiday passes, the city might move the
flyer to an archive along with other similar
historic flyers. Because the newly created
flyer would not meet the first part of the
definition of ‘‘archived web content,’’ it
would generally need to conform to WCAG
2.1 Level AA even after it is moved into an
archive. Therefore, the city would need to
ensure its system for retaining and storing
archived web content does not convert the
flyer into an inaccessible format.
Some commenters also suggested that the
exception should not apply to public entities
whose primary function is to provide or
make available what commenters perceived
as archived web content, such as some
libraries, museums, scientific research
organizations, or state or local government
agencies that provide birth or death records.
Commenters expressed concern that the
exception could be interpreted to cover the
entirety of such entities’ web content. The
Department reiterates that whether archived
web content is retained exclusively for
reference, research, or recordkeeping
depends on the particular circumstances. For
example, a city’s research library may have
both archived and non-archived web content
related to a city park. If the library’s
collection included a current map of the park
that was created by the city, that map would
likely not be retained exclusively for
reference, research, or recordkeeping, as it is
a current part of the city’s program of
providing and maintaining a park.
Furthermore, if the map was newly created
after the date the public entity was required
to comply with subpart H of this part, and
it does not reproduce paper documents or the
130 See W3C, Understanding SC 2.4.4.: Link
Purpose (In Context) (June 20, 2023), https://
www.w3.org/WAI/WCAG21/Understanding/linkpurpose-in-context.html [https://perma.cc/RE3TJ9PN].
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contents of other physical media created
before the date the public entity was required
to comply with subpart H, the map would
likely not meet the first part of the definition
of ‘‘archived web content.’’ In addition, the
library may decide to curate and host an
exhibition on its website about the history of
the park, which refers to and analyzes
historic web content pertaining to the park
that otherwise meets the definition of
‘‘archived web content.’’ All content used to
deliver the online exhibition likely would
not be used exclusively for reference,
research, or recordkeeping, as the library is
using the materials to create and provide a
new educational program for the members of
the public. The Department believes the
exception, including the definition of
‘‘archived web content,’’ provides a workable
framework for determining whether all types
of public entities properly designate web
content as archived.
In the NPRM, the Department asked
commenters about the relationship between
the content covered by the archived web
content exception and the exception for
preexisting conventional electronic
documents set forth in § 35.201(b).131 In
response, some commenters sought
clarification about the connection between
the exceptions or recommended that there
should only be one exception. The
Department believes both exceptions are
warranted because they play different roles
in freeing up public entities’ personnel and
financial resources to make accessible the
most significant content that they provide or
make available. As discussed in the
preceding paragraphs, the archived web
content exception provides a framework for
public entities to prioritize their resources on
making accessible the up-to-date materials
that people use most widely and
consistently, rather than historic or outdated
web content. However, public entities cannot
disregard such content entirely. Instead,
historic or outdated web content that entities
intend to treat as archived web content must
be located and added to an area or areas
clearly designated as being archived. The
Department recognizes that creating an
archive area or areas and moving content into
the archive will take time and resources. As
discussed in the section-by-section analysis
of § 35.201(b), the preexisting conventional
electronic documents exception provides an
important measure of clarity and certainty for
public entities as they initially consider how
to address all the various conventional
electronic documents available through their
web content and mobile apps. Public entities
will not have to immediately focus their time
and resources on remediating or archiving
less significant preexisting documents that
are covered by the exception. Instead, public
entities can focus their time and resources
elsewhere and attend to preexisting
documents covered by the preexisting
conventional electronic documents exception
in the future as their resources permit, such
as by adding them to an archive.
The Department recognizes that there may
be some overlap between the content covered
by the archived web content exception and
131 88
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the exception for preexisting conventional
electronic documents set forth in § 35.201(b).
The Department notes that if web content is
covered by the archived web content
exception, it does not need to conform to
WCAG 2.1 Level AA to comply with subpart
H of this part, even if the content fails to
qualify for another exception, such as the
preexisting conventional electronic
document exception. For example, after the
date a public university is required to comply
with subpart H, its athletics website may still
include PDF documents containing the
schedules for sports teams from academic
year 2017–2018 that were posted in nonarchived areas of the website in the summer
of 2017. Those PDFs may be covered by the
preexisting conventional electronic
documents exception because they were
available on the university’s athletics website
prior to the date it was required to comply
with subpart H, unless they are currently
used to apply for, gain access to, or
participate in a public entity’s services,
programs, or activities, in which case, as
discussed in more detail in the section-bysection analysis of § 35.201(b), they would
generally need to conform to WCAG 2.1
Level AA. However, if the university moved
the PDFs to an archived area of its athletics
site and the PDFs satisfied all parts of the
definition of ‘‘archived web content,’’ the
documents would not need to conform to
WCAG 2.1 Level AA, regardless of how the
preexisting conventional electronic
document exception might otherwise have
applied, because the content would fall
within the archived web content exception.
Some commenters also made suggestions
about public entities’ practices and
procedures related to archived web content,
but these suggestions fall outside the scope
of this part. For example, some commenters
stated that public entities’ websites should
not contain archived materials, or that all
individuals should have to submit request
forms to access archived materials. The
Department did not make any changes to this
part in response to these comments because
this part is not intended to control whether
public entities can choose to retain archived
material in the first instance, or whether
members of the public must follow certain
steps to access archived web content.
Preexisting Conventional Electronic
Documents
Section 35.201(b) provides that
conventional electronic documents that are
available as part of a public entity’s web
content or mobile apps before the date the
public entity is required to comply with
subpart H of this part do not have to comply
with the accessibility requirements of
§ 35.200, unless such documents are
currently used to apply for, gain access to, or
participate in a public entity’s services,
programs, or activities. As discussed in the
section-by-section analysis of § 35.104, the
term ‘‘conventional electronic documents’’ is
defined in § 35.104 to mean web content or
content in mobile apps that is in the
following electronic file formats: portable
document formats, word processor file
formats, presentation file formats, and
spreadsheet file formats. This list of
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conventional electronic documents is an
exhaustive list of file formats, rather than an
open-ended list. The Department
understands that many websites of public
entities contain a significant number of
conventional electronic documents that may
contain text, images, charts, graphs, and
maps, such as comprehensive reports on
water quality. The Department also
understands that many of these conventional
electronic documents are in PDF format, but
many conventional electronic documents
may also be formatted as word processor files
(e.g., Microsoft Word files), presentation files
(e.g., Apple Keynote or Microsoft PowerPoint
files), and spreadsheet files (e.g., Microsoft
Excel files).
Because of the substantial number of
conventional electronic documents that
public entities make available through their
web content and mobile apps, and because of
the personnel and financial resources that
would be required for public entities to
remediate all preexisting conventional
electronic documents to make them
accessible after the fact, the Department
believes public entities should generally
focus their personnel and financial resources
on developing new conventional electronic
documents that are accessible and
remediating existing conventional electronic
documents that are currently used to access
the public entity’s services, programs, or
activities. For example, if before the date a
public entity is required to comply with
subpart H of this part the entity’s website
contains a series of out-of-date PDF reports
on local COVID–19 statistics, those reports
generally need not conform to WCAG 2.1
Level AA. Similarly, if a public entity
maintains decades’ worth of water quality
reports in conventional electronic documents
on the same web page as its current water
quality report, the old reports that were
posted before the date the entity was required
to comply with subpart H generally do not
need to conform to WCAG 2.1 Level AA. As
the public entity posts new reports going
forward, however, those reports generally
must conform to WCAG 2.1 Level AA.
The Department modified the language of
this exception from the NPRM. In the NPRM,
the Department specified that the exception
applied to conventional electronic
documents ‘‘created by or for a public entity’’
that are available ‘‘on a public entity’s
website or mobile app.’’ The Department
believes the language ‘‘created by or for a
public entity’’ is no longer necessary in the
regulatory text of the exception itself because
the Department updated the language of
§ 35.200 to clarify the overall scope of
content generally covered by subpart H of
this part. In particular, the text of
§ 35.200(a)(1) and (2) now states that subpart
H applies to all web content and mobile apps
that a public entity provides or makes
available either directly or through
contractual, licensing, or other arrangements.
Section 35.201(b), which is an exception to
the requirements of § 35.200, is therefore
limited by the new language added to the
general section. In addition, the Department
changed the language ‘‘that are available on
a public entity’s website or mobile app’’ to
‘‘that are available as part of a public entity’s
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web content or mobile apps’’ to ensure
consistency with other parts of the regulatory
text by referring to ‘‘web content’’ rather than
‘‘websites.’’ Finally, the Department removed
the phrase ‘‘members of the public’’ from the
language of the exception in the proposed
rule for consistency with the edits to § 35.200
aligning the scope of subpart H with the
scope of title II of the ADA, as described in
the explanation of § 35.200 in the section-bysection analysis.
Some commenters sought clarification
about how to determine whether a
conventional electronic document is
‘‘preexisting.’’ They pointed out that the date
a public entity posted or last modified a
document may not necessarily reflect the
actual date the document was first made
available to members of the public. For
example, a commenter noted that a public
entity may copy its existing documents
unchanged into a new content management
system after the date the public entity is
required to comply with subpart H of this
part, in which case the date stamp of the
documents will reflect the date they were
copied rather than the date they were first
made available to the public. Another
commenter recommended that the exception
should refer to the date a document was
‘‘originally’’ posted to account for
circumstances in which there is an
interruption to the time the document is
provided or made available to members of
the public, such as when a document is
temporarily not available due to technical
glitches or server problems.
The Department believes the exception is
sufficiently clear. Conventional electronic
documents are preexisting if a public entity
provides them or makes them available prior
to the date the public entity is required to
comply with subpart H of this part. While
one commenter recommended that the
exception should not apply to documents
provided or made available during the twoor three-year compliance timelines specified
in § 35.200(b), the Department believes the
timelines specified in that section are the
appropriate time frames for assessing
whether a document is preexisting and
requiring compliance with subpart H. If a
public entity changes or revises a preexisting
document following the date it is required to
comply with subpart H, the document would
no longer be ‘‘preexisting’’ for the purposes
of the exception. Whether documents would
still be preexisting if a public entity generally
modifies or updates the entirety of its web
content or mobile apps after the date it is
required to comply with subpart H would
depend on the particular facts and
circumstances. For example, if a public entity
moved all of its web content, including
preexisting conventional electronic
documents, to a new content management
system, but did not change or revise any of
the preexisting documents when doing so,
the documents would likely still be covered
by the exception. In contrast, if the public
entity decided to edit the content of certain
preexisting documents in the process of
moving them to the new content management
system, such as by updating the header of a
benefits application form to reflect the public
entity’s new mailing address, the updated
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documents would no longer be preexisting
for the purposes of the exception. The
Department emphasizes that the purpose of
the exception is to free up public entities’
resources that would otherwise be spent
focusing directly on preexisting documents
covered by the exception.
Because the exception only applies to
preexisting conventional electronic
documents, it would not cover documents
that are open for editing if they are changed
or revised after the date a public entity is
required to comply with subpart H of this
part. For example, a town may maintain an
editable word processing file, such as a
Google Docs file, that lists the dates on which
the town held town hall meetings. The town
may post a link to the document on its
website so members of the public can view
the document online in a web browser, and
it may update the contents of the document
over time after additional meetings take
place. If the document was posted to the
town’s website prior to the date it was
required to comply with subpart H, it would
be a preexisting conventional electronic
document unless the town added new dates
to the document after the date it was required
to comply with subpart H. If the town made
such additions to the document, the
document would no longer be preexisting.
Nevertheless, there are some circumstances
where conventional electronic documents
may be covered by the exception even if
copies of the documents can be edited after
the date the public entity is required to
comply with subpart H. For example, a
public entity may post a Microsoft Word
version of a flyer on its website prior to the
date it is required to comply with subpart H.
A member of the public could technically
download and edit that Word document after
the date the public entity is required to
comply with subpart H, but their edits would
not impact the ‘‘official’’ posted version.
Therefore, the official version would still
qualify as preexisting under the exception.
Similarly, PDF files that include fillable form
fields (e.g., areas for a user to input their
name and address) may also be covered by
the exception so long as members of the
public do not edit the content contained in
the official posted version of the document.
However, as discussed in the following
paragraph, the exception does not apply to
documents that are currently used to apply
for, gain access to, or participate in the public
entity’s services, programs, or activities. The
Department notes that whether a PDF
document is fillable may be relevant in
considering whether the document is
currently used to apply for, gain access to, or
participate in a public entity’s services,
programs, or activities. For example, a PDF
form that must be filled out and submitted
when renewing a driver’s license is currently
used to apply for, gain access to, or
participate in a public entity’s services,
programs, or activities, and therefore would
not be subject to the exception under
§ 35.201(b) for preexisting conventional
electronic documents. One commenter
recommended that the Department clarify in
the text of the regulation that conventional
electronic documents include only those
documents that are not open for editing by
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the public. The Department believes this
point is adequately captured by the
requirement that conventional electronic
documents must be preexisting to qualify for
the exception.
This exception is not without bounds: it
does not apply to any preexisting documents
that are currently used to apply for, gain
access to, or participate in the public entity’s
services, programs, or activities. In
referencing ‘‘documents that are currently
used,’’ the Department intends to cover
documents that are used at any given point
in the future, not just at the moment in time
when the final rule is published. For
example, a public entity generally must make
a preexisting PDF application for a business
license conform to WCAG 2.1 Level AA if the
document is still currently used. The
Department notes that preexisting documents
are also not covered by the exception if they
provide instructions or guidance related to
other documents that are directly used to
apply for, gain access to, or participate in the
public entity’s services, programs, or
activities. Therefore, in addition to making
the aforementioned preexisting PDF
application for a business license conform to
WCAG 2.1 Level AA, public entities
generally must also make other preexisting
documents conform to WCAG 2.1 Level AA
if they may be needed to obtain the license,
complete the application, understand the
process, or otherwise take part in the
program, such as business license application
instructions, manuals, sample knowledge
tests, and guides, such as ‘‘Questions and
Answers’’ documents.
Various commenters sought additional
clarification about what it means for
conventional electronic documents to be
‘‘used’’ in accordance with the limited scope
of the exception. In particular, commenters
questioned whether informational documents
are used by members of the public to apply
for, gain access to, or participate in a public
entity’s services, programs, or activities.
Some commenters expressed concern that the
scope of the exception would be interpreted
inconsistently, including with respect to
documents posted by public entities in
accordance with other laws. Some
commenters also urged the Department to
add additional language to the exception,
such as specifying that documents would not
be covered by the exception if they are used
by members of the public to ‘‘enable or
assist’’ them to apply for, gain access to, or
participate in a public entity’s services,
programs, or activities, or the documents
‘‘provide information about or describe’’ a
public entity’s services, programs, or
activities.
Whether a document is currently used to
apply for, gain access to, or participate in a
public entity’s services, programs, or
activities is a fact-specific analysis. For
example, one commenter questioned whether
a document containing a city’s description of
a public park and its accessibility provisions
would be covered by the exception if the
document did not otherwise discuss a
particular event or program. The Department
anticipates that the exception would likely
not cover such a document. One of the city’s
services, programs, or activities is providing
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and maintaining a public park and its
accessibility features. An individual with a
disability who accesses the document before
visiting the park to understand the park’s
accessibility features would be currently
using the document to gain access to the
park.
One commenter suggested that if a public
entity cannot change preexisting
conventional electronic documents due to
legal limitations or other similar restrictions,
then the public entity should not have to
make those documents accessible under
subpart H of this part, even if they are
currently used by members of the public to
apply for, gain access to, or participate in a
public entity’s services, programs, or
activities. The Department did not make
changes to the exception because subpart H
already includes a provision that addresses
such circumstances in § 35.202. Namely,
public entities are permitted to use
conforming alternate versions of web content
where it is not possible to make web content
directly accessible due to technical or legal
limitations. Therefore, a public entity could
provide an individual with a disability a
conforming alternate version of a preexisting
conventional electronic document currently
used to apply for, gain access to, or
participate in the public entity’s services,
programs, or activities if the document could
not be made accessible for the individual due
to legal limitations.
One commenter expressed concern that
public entities might convert large volumes
of web content to formats covered by the
exception ahead of the compliance dates in
subpart H of this part. In contrast, a public
entity stated that there is limited incentive to
rush to post inaccessible documents prior to
the compliance dates because documents are
frequently updated, and it would be easier
for the public entity to create accessible
documents in the first place than to try to
remediate inaccessible documents in the
future. The Department emphasizes that a
public entity may not rely on the exception
to circumvent its accessibility obligations
under subpart H by, for example, converting
all of its web content to conventional
electronic document formats and posting
those documents before the date the entity
must comply with subpart H. Even if a public
entity did convert various web content to
preexisting conventional electronic
documents before the date it was required to
comply with subpart H, the date the
documents were posted is only one part of
the analysis under the exception. If any of the
converted documents are currently used to
apply for, gain access to, or participate in the
public entity’s services, programs, or
activities, they would not be covered by the
exception and would generally need to
conform to WCAG 2.1 Level AA, even if
those documents were posted before the date
the entity was required to comply with
subpart H. And if a public entity revises a
conventional electronic document after the
date the entity must comply with subpart H,
that document would no longer qualify as
‘‘preexisting’’ and would thus need to be
made accessible as defined in § 35.200.
The Department received comments both
supporting and opposing the exception. In
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support of the exception, commenters
highlighted various benefits. For example,
commenters noted that the exception would
help public entities preserve resources
because remediating preexisting documents
is time consuming and expensive.
Commenters also noted that the exception
would focus public entities’ resources on
current and future content rather than
preexisting documents that may be old,
rarely accessed, or of little benefit.
Commenters stated that in the absence of this
exception public entities might remove
preexisting documents from their websites.
In opposition to the exception, commenters
highlighted various concerns. For example,
commenters argued that the exception is
inconsistent with the ADA’s goal of equal
access for individuals with disabilities
because it perpetuates unequal access to
information available through public entities’
web content and mobile apps, and it is
unnecessary because the compliance
limitations for fundamental alteration and
undue financial and administrative burdens
would protect public entities from any
unrealistic requirements under subpart H of
this part. Commenters also asserted that the
exception excludes relevant and important
content from becoming accessible, and it
inappropriately continues to place the
burden on individuals with disabilities to
identify themselves to public entities, request
access to the content covered by the
exception, and wait for the request to be
processed. In addition, commenters argued
that the exception covers file formats that do
not need to be covered by an exception
because they can generally be remediated
easily; it is not timebound; it does not
account for technology that exists, or might
develop in the future, that may allow for easy
and reliable wide-scale remediation of
conventional electronic documents; and it
might deter development of technology to
reliably remediate conventional electronic
documents. Commenters also stated that the
exception is confusing because, as described
elsewhere in this appendix, it may not be
clear when documents are ‘‘preexisting’’ or
‘‘used’’ to apply for, gain access to, or
participate in a public entity’s services,
programs, or activities, and confusion or a
lack of predictability would make advocacy
efforts more difficult.
After reviewing the comments, the
Department has decided to keep the
exception in § 35.201. The Department
continues to believe that the exception
provides an important measure of clarity and
certainty for public entities as they initially
consider how to address all the various
conventional electronic documents provided
and made available through their web
content and mobile apps. The exception will
allow public entities to primarily focus their
resources on developing new conventional
electronic documents that are accessible as
defined under subpart H of this part and
remediating preexisting conventional
electronic documents that are currently used
to apply for, gain access to, or participate in
their services, programs, or activities. In
contrast, public entities will not have to
expend their resources on identifying,
cataloguing, and remediating preexisting
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conventional electronic documents that are
not currently used to apply for, gain access
to, or participate in the public entity’s
services, programs, or activities. Based on the
exception, public entities may thereby make
more efficient use of the resources available
to them to ensure equal access to their
services, programs, or activities for all
individuals with disabilities.
The Department understands the concerns
raised by commenters about the potential
burdens that individuals with disabilities
may face because some conventional
electronic documents covered by the
exception are not accessible. The Department
emphasizes that even if certain content does
not have to conform to the technical
standard, public entities still need to ensure
that their services, programs, and activities
offered using web content and mobile apps
are accessible to individuals with disabilities
on a case-by-case basis in accordance with
their existing obligations under title II of the
ADA. These obligations include making
reasonable modifications to avoid
discrimination on the basis of disability,
ensuring that communications with people
with disabilities are as effective as
communications with people without
disabilities, and providing people with
disabilities an equal opportunity to
participate in or benefit from the entity’s
services, programs, or activities.132
Some commenters suggested that the
Department should require public entities to
adopt procedures and timelines for how
individuals with disabilities could request
access to inaccessible conventional electronic
documents covered by the exception. One
commenter also suggested that subpart H of
this part should require the ongoing
provision of accessible materials to an
individual with a disability if a public entity
is on notice that the individual needs access
to preexisting conventional electronic
documents covered by the exception in
accessible formats. The Department declines
to make specific changes to the exception in
response to these comments and reiterates
that public entities must determine on a caseby-case basis how best to meet the needs of
those individuals who cannot access the
content contained in documents that are
covered by the exception. It is helpful to
provide individuals with disabilities with
information about how to obtain the
modifications or auxiliary aids and services
they may need. Public entities can help to
facilitate effective communication by
providing notice to the public on how an
individual who cannot access preexisting
conventional electronic documents covered
by the exception because of a disability can
request other means of effective
communication or reasonable modifications
in order to access the public entity’s services,
programs, or activities with respect to the
documents. Public entities can also facilitate
effective communication by providing an
accessibility statement that tells the public
how to bring web content or mobile app
accessibility problems to the public entities’
attention and developing and implementing
a procedure for reviewing and addressing any
132 See
§§ 35.130(b)(1)(ii) and (b)(7) and 35.160.
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such issues raised. For example, a public
entity could facilitate effective
communication by providing an email
address, accessible link, accessible web page,
or other accessible means of contacting the
public entity to provide information about
issues that individuals with disabilities may
encounter accessing web content or mobile
apps or to request assistance. Providing this
information will help public entities to
ensure that they are satisfying their
obligations to provide equal access, effective
communication, and reasonable
modifications.
Commenters also suggested other possible
revisions to the exception. Commenters
recommended various changes that would
cause conventional electronic documents
covered by the exception to become
accessible over time. For example,
commenters suggested that if a public entity
makes a copy of a preexisting conventional
electronic document covered by the
exception conform to WCAG 2.1 Level AA in
response to a request from an individual with
a disability, the public entity should replace
the inaccessible version posted on its web
content or mobile app with the updated
accessible version that was sent to the
individual; the exception should ultimately
expire after a certain amount of time; public
entities should be required to remediate
preexisting documents over time, initially
prioritizing documents that are most
important and frequently accessed; or public
entities should be required to convert certain
documents to HTML format according to the
same schedule that other HTML content is
made accessible.
The Department already expects the impact
of the exception will diminish over time for
various reasons. For example, public entities
may update the documents covered by the
exception, in which case they are no longer
‘‘preexisting.’’ In addition, the Department
notes that there is nothing in subpart H of
this part that would prevent public entities
from taking steps, such as those identified by
commenters, to make preexisting
conventional electronic documents conform
to WCAG 2.1 Level AA. In fact, public
entities might find it beneficial to do so.
One commenter recommended that the
exception should apply to all preexisting
conventional electronic documents
regardless of how they are used by members
of the public. The Department does not
believe this approach is advisable because it
has the potential to cause a significant
accessibility gap for individuals with
disabilities if public entities rely on
conventional electronic documents that are
not regularly updated or changed. This could
result in inconsistent access to web content
and mobile apps and therefore less
predictability for people with disabilities in
terms of what to expect when accessing
public entities’ web content and mobile apps.
One public entity recommended that the
exception should also apply to preexisting
documents posted on a public entity’s web
content or mobile apps after the date the
public entity is required to comply with
subpart H of this part if the documents are
of historical value and were only minimally
altered before posting. One goal of the
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exception is to assist public entities in
focusing their personnel and financial
resources on developing new web content
and mobile apps that are accessible as
defined under subpart H. Therefore, the
exception neither applies to content that is
newly added to a public entity’s web content
or mobile app after the date the public entity
is required to comply with subpart H nor to
preexisting content that is updated after that
date. The Department notes that if a public
entity wishes to post archival documents,
such as the types of documents described by
the commenter, after the date the public
entity is required to comply with subpart H,
the public entity should assess whether the
documents can be archived under
§ 35.201(a), depending on the facts. In
particular, the definition of ‘‘archived web
content’’ in § 35.104 includes web content
posted to an archive after the date a public
entity is required to comply with subpart H
only if the web content was created before
the date the public entity is required to
comply with subpart H, reproduces paper
documents created before the date the public
entity is required to comply with subpart H,
or reproduces the contents of other physical
media created before the date the public
entity is required to comply with subpart H.
Several commenters also requested
clarification about how the exception applies
to preexisting conventional electronic
documents that are created by a third party
on behalf of a public entity or hosted on a
third party’s web content or mobile apps on
behalf of a public entity. As previously
discussed, the Department made general
changes to § 35.200 that address public
entities’ contractual, licensing, or other
arrangements with third parties. The
Department clarified that the general
requirements for web content and mobile app
accessibility apply when a public entity
provides or makes available web content or
mobile apps, directly or through contractual,
licensing, or other arrangements. The same is
also true for the application of this exception.
Therefore, preexisting conventional
electronic documents that a public entity
provides or makes available, directly or
through contractual, licensing, or other
arrangements, would be subject to subpart H
of this part, and the documents would be
covered by this exception unless they are
currently used to apply for, gain access to, or
participate in the public entity’s services,
programs, or activities.
Third-Party Content
Public entities’ web content or mobile apps
can include or link to many different types
of content created by someone other than the
public entity, some of which is posted by or
on behalf of public entities and some of
which is not. For example, many public
entities’ websites contain content created by
third parties, like scheduling tools,
reservations systems, or payment systems.
Web content or content in mobile apps
created by third parties may also be posted
by members of the public on a public entity’s
online message board or other sections of the
public entity’s content that allow public
comment. In addition to content created by
third parties that is posted on the public
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entity’s own web content or content in
mobile apps, public entities frequently
provide links to third-party content (i.e.,
links on the public entity’s website to content
that has been posted on another website that
does not belong to the public entity),
including links to outside resources and
information.
Subpart H of this part requires web content
and mobile apps created by third parties to
comply with § 35.200 if the web content and
mobile apps are provided or made available
due to contractual, licensing, or other
arrangements with the public entity. In other
words, web content and mobile apps that are
created or posted on behalf of a public entity
fall within the scope of § 35.200. Where a
public entity links to third-party content but
the third-party content is truly unaffiliated
with the public entity and not provided on
behalf of the public entity due to contractual,
licensing, or other arrangements, the linked
content falls outside the scope of § 35.200.
Additionally, due to the exception in
§ 35.201(c), content posted by a third party
on an entity’s web content or mobile app falls
outside the scope of § 35.200, unless the third
party is posting due to contractual, licensing,
or other arrangements with the public entity.
The Department has heard a variety of
views regarding whether public entities
should be responsible for ensuring that thirdparty content on their websites and linked
third-party content are accessible as defined
by § 35.200. Some maintain that public
entities cannot be held accountable for thirdparty content on their websites, and without
such an exception, public entities may have
to remove the content altogether. Others have
suggested that public entities should not be
responsible for third-party content and
linked content unless that content is
necessary for individuals to access public
entities’ services, programs, or activities. The
Department has also heard the view,
however, that public entities should be
responsible for third-party content because a
public entity’s reliance on inaccessible thirdparty content can prevent people with
disabilities from having equal access to the
public entity’s own services, programs, or
activities. Furthermore, boundaries between
web content generated by a public entity and
by a third party are often difficult to discern.
In anticipation of these concerns, the
Department originally proposed two limited
exceptions related to third-party content in
the NPRM. After review of the public’s
comments to those exceptions and the
comments related to third-party content
generally, the Department is proceeding with
one of those exceptions in subpart H of this
part, as described in the following paragraph.
As further explained elsewhere in this
appendix, the Department notes that it
eliminates redundancy to omit the previously
proposed exception for third-party content
linked from a public entity’s website, but it
does not change the scope of content that is
required to be made accessible under subpart
H.
Content Posted by a Third Party
Section 35.201(c) provides an exception to
the web and mobile app accessibility
requirements of § 35.200 for content posted
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by a third party, unless the third party is
posting due to contractual, licensing, or other
arrangements with the public entity. Section
35.201 includes this exception in recognition
of the fact that individuals other than a
public entity’s agents sometimes post content
on a public entity’s web content and mobile
apps. For example, members of the public
may sometimes post on a public entity’s
online message boards, wikis, social media,
or other web forums, many of which are
unmonitored, interactive spaces designed to
promote the sharing of information and
ideas. Members of the public may post
frequently, at all hours of the day or night,
and a public entity may have little or no
control over the content posted. In some
cases, a public entity’s website may include
posts from third parties dating back many
years, which are likely of limited, if any,
relevance today. Because public entities often
lack control over this third-party content, it
may be challenging (or impossible) for them
to make it accessible. Moreover, because this
third-party content may be outdated or less
frequently accessed than other content, there
may be only limited benefit to requiring
public entities to make this content
accessible. Accordingly, the Department
believes an exception for this content is
appropriate. However, while this exception
applies to web content or content in mobile
apps posted by third parties, it does not
apply to the tools or platforms the public
uses to post third-party content on a public
entity’s web content or content in mobile
apps, such as message boards—these tools
and platforms generally must conform to the
technical standard in subpart H of this part.
This exception applies to, among other
third-party content, documents filed by
independent third parties in administrative,
judicial, and other legal proceedings that are
available on a public entity’s web content or
mobile apps. This example helps to illustrate
why the Department believes this exception
is necessary. Many public entities have either
implemented or are developing an automated
process for electronic filing of documents in
administrative, judicial, or legal proceedings
in order to improve efficiency in the
collection and management of these
documents. Courts and other public entities
receive high volumes of filings in these sorts
of proceedings each year. Documents are
often submitted by third parties—such as a
private attorney in a legal case or other
members of the public—and those
documents often include appendices,
exhibits, or other similar supplementary
materials that may be difficult to make
accessible.
However, the Department notes that public
entities have existing obligations under title
II of the ADA to ensure the accessibility of
their services, programs, or activities.133
Accordingly, for example, if a person with a
disability is a party to a case and requests
access to inaccessible filings submitted by a
third party in a judicial proceeding that are
available on a State court’s website, the court
generally must timely provide those filings in
an accessible format. Similarly, public
133 See, e.g., §§ 35.130(b)(1)(ii) and (b)(7) and
35.160.
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entities generally must provide reasonable
modifications to ensure that individuals with
disabilities have access to the public entities’
services, programs, or activities. For example,
if a hearing had been scheduled in the
proceeding referenced in this paragraph, the
court might need to postpone the hearing if
the person with a disability was not provided
filings in an accessible format before the
scheduled hearing.
Sometimes a public entity itself chooses to
post content created by a third party on its
website. The exception in § 35.201(c) does
not apply to content posted by the public
entity itself, or posted on behalf of the public
entity due to contractual, licensing, or other
arrangements, even if the content was
originally created by a third party. For
example, many public entities post thirdparty content on their websites, such as
calendars, scheduling tools, maps,
reservations systems, and payment systems
that were developed by an outside
technology company. Sometimes a third
party might even build a public entity’s
website template on the public entity’s
behalf. To the extent a public entity chooses
to rely on third-party content on its website
in these ways, it must select third-party
content that meets the requirements of
§ 35.200. This is because a public entity may
not delegate away its obligations under the
ADA.134 If a public entity relies on a
contractor or another third party to post
content on the public entity’s behalf, the
public entity retains responsibility for
ensuring the accessibility of that content. To
provide another example, if a public housing
authority relies on a third-party contractor to
collect online applications on the third-party
contractor’s website for placement on a
waitlist for housing, the public housing
authority must ensure that this content is
accessible.
The Department has added language to the
third-party posted exception in § 35.201(c) to
make clear that the exception does not apply
where a third party is posting on behalf of
the public entity. The language in § 35.201(c)
provides that the exception does not apply if
the third party is posting due to contractual,
licensing, or other arrangements with the
public entity. The Department received many
comments expressing concern with how this
exception as originally proposed could have
applied in the context of third-party vendors
and other entities acting on behalf of the
public entity. The Department added
language to make clear that the exception
only applies where the third-party posted
content is independent from the actions of
the public entity—that is, where there is no
arrangement under which the third party is
acting on behalf of the public entity. If such
an arrangement exists, the third-party content
is not covered by the exception and must be
made accessible in accordance with subpart
H of this part. This point is also made clear
in language the Department added to the
general requirements of § 35.200, which
provides that public entities shall ensure web
134 See § 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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content and mobile apps that the public
entities provide or make available, directly or
through contractual, licensing, or other
arrangements, are readily accessible to and
usable by individuals with disabilities.135
The Department decided to add the same
clarification to the exception for third-party
posted content because this is the only
exception in § 35.201 that applies solely
based upon the identity of the poster
(whereas the other exceptions identify the
type of content at issue), and the Department
believes clarity about the meaning of ‘‘third
party’’ in the context of this exception is
critical to avoid the exception being
interpreted overly broadly. The Department
believes this clarification is justified by the
concerns raised by commenters.
On another point, some commenters
expressed confusion about when authoring
tools and other embedded content that
enables third-party postings would need to
be made accessible. The Department wishes
to clarify that while the exception for thirdparty posted content applies to that content
which is posted by an independent third
party, the exception does not apply to the
authoring tools and embedded content
provided by the public entity, directly or
through contractual, licensing, or other
arrangements. Because of this, authoring
tools, embedded content, and other similar
functions provided by the public entity that
facilitate third-party postings are not covered
by this exception and must be made
accessible in accordance with subpart H of
this part. Further, public entities should
consider the ways in which they can
facilitate accessible output of third-party
content through authoring tools and
guidance. Some commenters suggested that
the Department should add regulatory text
requiring public entities to use authoring
tools that generate compliant third-party
posted content. The Department declines to
adopt this approach at this time because the
technical standard adopted by subpart H is
WCAG 2.1 Level AA, and the Department
believes the commenters’ proposed approach
would go beyond that standard. The
Department believes going beyond the
requirements of WCAG 2.1 Level AA in this
way would undermine the purpose of relying
on an existing technical standard that web
developers are already familiar with, and for
which guidance is readily available, which
could prove confusing for public entities.
The Department received many comments
either supporting or opposing the exception
for content posted by a third party. Public
entities and trade groups representing public
accommodations generally supported the
exception, and disability advocates generally
opposed the exception. Commenters
supporting the exception argued that the
content covered by this exception would not
be possible for public entities to remediate
since they lack control over unaffiliated
third-party content. Commenters in support
of the exception also shared that requiring
public entities to remediate this content
would stifle engagement between public
entities and members of the public, because
135 See supra section-by-section analysis of
§ 35.200(a)(1) and (2) and (b)(1) and (2).
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requiring review and updating of third-party
postings would take time. Further, public
entities shared that requiring unaffiliated
third-party web content to be made
accessible would in many cases either be
impossible or require the public entity to
make changes to the third party’s content in
a way that could be problematic.
Commenters opposing the exception
argued that unaffiliated third-party content
should be accessible so that individuals with
disabilities can engage with their State or
local government entities, and commenters
shared examples of legal proceedings,
development plans posted by third parties for
public feedback, and discussions of
community grievances or planning. Some of
the commenters writing in opposition to the
exception expressed concern that content
provided by vendors and posted by third
parties on behalf of the public entity would
also be covered by this exception. The
Department emphasizes in response to these
commenters that this exception does not
apply where a third party such as a vendor
is acting on behalf of a public entity, through
contractual, licensing, or other arrangements.
The Department added language to ensure
this point is clear in regulatory text, as
explained previously.
After reviewing the comments, the
Department emphasizes at the outset the
narrowness of this exception—any thirdparty content that is posted due to
contractual, licensing, or other arrangements
with the public entity would not be covered
by this exception. The Department
sometimes refers to the content covered by
this exception as ‘‘independent’’ or
‘‘unaffiliated’’ content to emphasize that this
exception only applies to content that the
public entity has not contracted, licensed, or
otherwise arranged with the third party to
post. This exception would generally apply,
for example, where the public entity enables
comments from members of the public on its
social media page and third-party individuals
independently comment on that post, or
where a public entity allows for legal filings
through an online portal and a third-party
attorney independently submits a legal filing
on behalf of their private client (which is
then available on the public entity’s web
content or mobile apps).
The Department has determined that
maintaining this exception is appropriate
because of the unique considerations relevant
to this type of content. The Department takes
seriously public entities’ concerns that they
will often be unable to ensure independent
third-party content is accessible because it is
outside of their control, and that if they were
to attempt to control this content it could
stifle communication between the public and
State or local government entities. The
Department further believes there are unique
considerations that could prove problematic
with public entities editing or requiring third
parties to edit their postings. For example, if
public entities were required to add alt text
to images or maps in third parties’ legal or
other filings, it could require the public
entity to make decisions about how to
describe images or maps in a way that could
be problematic from the perspective of the
third-party filer. Alternatively, if the public
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entity were to place this burden on the thirdparty filer, it could lead to different
problematic outcomes. For example, if a
public entity rejects a posting from an
unaffiliated third party (someone who does
not have obligations under subpart H of this
part) and requires the third party to update
it, the result could be a delay of an
emergency or time-sensitive filing or even
impeding access to the forum if the third
party is unable or does not have the resources
to remediate the filing.
The Department understands the concerns
raised by the commenters who oppose this
exception, and the Department appreciates
that the inclusion of this exception means
web content posted by third parties may not
consistently be accessible by default. The
Department emphasizes that even if certain
content does not have to conform to the
technical standard, public entities still need
to ensure that their services, programs, and
activities offered using web content and
mobile apps are accessible to individuals
with disabilities on a case-by-case basis in
accordance with their existing obligations
under title II of the ADA. These obligations
include making reasonable modifications to
avoid discrimination on the basis of
disability, ensuring that communications
with people with disabilities are as effective
as communications with people without
disabilities, and providing people with
disabilities an equal opportunity to
participate in or benefit from the entity’s
services, programs, or activities.136
The Department believes the balance this
exception strikes thus ensures accessibility to
the extent feasible without requiring public
entities to take actions that may be
impossible or lead to problematic outcomes
as described previously. These problematic
outcomes include public entities needing to
characterize independent third-party content
by adding image descriptions, for example,
and stifling engagement between public
entities and the public due to public entities’
need to review and potentially update
independent third-party posts, which could
lead to delay in posting. Independent thirdparty content should still be made accessible
upon request when required under the
existing obligations within title II of the
ADA. However, public entities are not
required to ensure the accessibility at the
outset of independent third-party content.
The Department believes, consistent with
commenters’ suggestions, that reliance solely
on the fundamental alteration or undue
burdens provisions discussed in the ‘‘Duties’’
section of the section-by-section analysis of
§ 35.204 would not avoid these problematic
outcomes. This is because, for example, even
where the public entity may have the
resources to make the third-party content
accessible (such as by making changes to the
postings or blocking posting until the third
party makes changes), and even where the
public entity does not believe modifying the
postings would result in a fundamental
alteration in the nature of the service,
program, or activity at issue, the problematic
outcomes described previously would likely
persist. The Department thus believes that
136 See
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this exception appropriately balances the
relevant considerations while ensuring
access for individuals with disabilities.
Some commenters suggested alternative
formulations that would narrow or expand
the exception. For example, commenters
suggested that the Department limit the
exception to advertising and marketing or
activities not used to access government
services, programs, or activities; mandate that
third-party postings providing official
comment on government actions still be
required to be made accessible; provide
alternative means of access as permissible
ways of achieving compliance; consider more
content as third-party created content;
provide for no liability for third-party
sourced content; require that emergency
information posted by third parties still be
accessible; and require that public entities
post guidance on making third-party postings
accessible. The Department has considered
these alternative formulations, and with each
proposed alternative the Department found
that the proposal would not avoid the
problematic outcomes described previously,
would result in practical difficulties to
implement and define, or would be too
expansive of an exception in that too much
content would be inaccessible to individuals
with disabilities.
Commenters also suggested that the
Department include a definition of ‘‘third
party.’’ The Department is declining to add
this definition because the critical factor in
determining whether this exception applies
is whether the third party is posting due to
contractual, licensing, or other arrangements
with the public entity, and the Department
believes the changes to the regulatory text
provide the clarity commenters sought. For
example, the Department has included
language making clear that public entities are
responsible for the content of third parties
acting on behalf of State or local government
entities through the addition of the
‘‘contractual, licensing, or other
arrangements’’ clauses in the general
requirements and in this exception. One
commenter also suggested that subpart H of
this part should cover third-party creators of
digital apps and content regardless of
whether the apps and content are used by
public entities. Independent third-party
providers unaffiliated with public entities are
not covered by the scope of subpart H, as
they are not title II entities.
Finally, the Department made a change to
the exception for third-party posted content
from the NPRM to make the exception more
technology neutral. The NPRM provided that
the exception applies only to ‘‘web content’’
posted by a third party.137 The Department
received a comment suggesting that thirdparty posted content be covered by the
exception regardless of whether the content
is posted on web content or mobile apps, and
several commenters indicated that subpart H
of this part should apply the same exceptions
across these platforms to ensure consistency
in user experience and reduce confusion. For
example, if a third party posts information on
a public entity’s social media page, that
information would be available on both the
web and on a mobile app. However, without
a technology-neutral exception for thirdparty posted content, that same information
would be subject to different requirements on
different platforms, which could create
perverse incentives for public entities to only
make certain content available on certain
platforms. To address these concerns,
§ 35.201(c) includes a revised exception for
third-party posted content to make it more
technology neutral by clarifying that the
exception applies to ‘‘content’’ posted by a
third party. The Department believes this
will ensure consistent application of the
exception whether the third-party content is
posted on web content or mobile apps.
Previously Proposed Exception for ThirdParty Content Linked From a Public Entity’s
Website
In the NPRM, the Department proposed an
exception for third-party content linked from
a public entity’s website. After reviewing
public comments on this proposed exception,
the Department has decided not to include it
in subpart H of this part. The Department
agrees with commenters who shared that the
exception is unnecessary and would only
create confusion. Further, the Department
believes that the way the exception was
framed in the NPRM is consistent with the
way subpart H would operate in the absence
of this exception (with some clarifications to
the regulatory text), so the fact that this
exception is not included in subpart H will
not change what content is covered by
subpart H. Under subpart H, consistent with
the approach in the NPRM, public entities
are not responsible for making linked thirdparty content accessible where they do not
provide or make available that content,
directly or through contractual, licensing, or
other arrangements.
Exception Proposed in the NPRM
The exception for third-party-linked
content that was proposed in the NPRM
provided that a public entity would not be
responsible for the accessibility of third-party
web content linked from the public entity’s
website unless the public entity uses the
third-party web content to allow members of
the public to participate in or benefit from
the public entity’s services, programs, or
activities. Many public entities’ websites
include links to other websites that contain
information or resources in the community
offered by third parties that are not affiliated
with the public entity. Clicking on one of
these links will take an individual away from
the public entity’s website to the website of
a third party. Often, the public entity has no
control over or responsibility for a third
party’s web content or the operation of the
third party’s website. Accordingly, the
proposed regulatory text in the NPRM
provided that the public entity would have
no obligation to make the content on a third
party’s website accessible.138 This exception
was originally provided to make clear that
public entities can continue to provide links
to independent third-party web content
without making the public entity responsible
138 88
137 88
FR 52019.
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for the accessibility of the third party’s web
content.
However, in the NPRM, the Department
provided that if the public entity uses the
linked third-party web content to allow
members of the public to participate in or
benefit from the public entity’s services,
programs, or activities, then the public entity
must ensure it only links to third-party web
content that complies with the web
accessibility requirements of § 35.200. The
Department clarified that this approach is
consistent with public entities’ obligation to
make all of their services, programs, and
activities accessible to the public, including
those that public entities provide through
third parties.139
Most commenters opining on this subject
opposed the exception for third-party content
linked from a public entity’s website,
including disability advocates and
individuals with disabilities. Commenters
raised many concerns with the exception as
drafted. Principally, commenters shared that
the exception could lead to confusion about
when third-party content is covered by
subpart H, and that it could result in critical
third-party content being interpreted to be
excluded from the requirements of § 35.200.
Although the Department proposed a
limitation to the exception (i.e., a scenario
under which the proposed exception would
not apply) that would have required linked
third-party content to be made accessible
when it is used to participate in or benefit
from the public entity’s services, programs,
or activities, commenters pointed out that
this limitation would be difficult to apply to
third-party content, and that many public
entities would interpret the exception to
allow them to keep services, programs, and
activities inaccessible. Many commenters,
including public entities, even demonstrated
this confusion through their comments. For
example, commenters believed that web
content like fine payment websites, zoning
maps, and other services provided by thirdparty vendors on behalf of public entities
would be allowed to be inaccessible under
this exception. This misinterprets the
proposed exception as originally drafted
because third-party web content that is used
to participate in or benefit from the public
entity’s services, programs, or activities
would have still been required to be
accessible as defined under proposed
§ 35.201 due to the limitation to the
exception. But the Department noted that
many commenters from disability advocacy
groups, public entities, and trade groups
representing public accommodations either
expressed concern with or confusion about
the exception, or demonstrated confusion
through inaccurate statements about what
content would fall into this exception to the
requirements in subpart H of this part.
Further, commenters also expressed
concern with relieving public entities of the
responsibility to ensure that the links they
provide lead to accessible content.
139 88 FR 51969; see also § 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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Commenters stated that when public entities
provide links, they are engaging in activities
that would be covered by subpart H of this
part. In addition, commenters said that
public entities might provide links to places
where people can get vaccinations or collect
information for tourists, and that these
constitute the activities of the public entity.
Also, commenters opined that when public
entities engage in these activities, they
should not be absolved of the responsibility
to provide information presented in a nondiscriminatory manner. Commenters said
that public entities have control over which
links they use when they organize these
pages, and that public entities can and
should take care to only provide information
leading to accessible web content.
Commenters stated that in many cases public
entities benefit from providing these links, as
do the linked websites, and that public
entities should thus be responsible for
ensuring the accessibility of the linked
content. Some commenters added that this
exception would have implied that title III
entities are permitted to discriminate by
keeping their web content inaccessible,
though the Department emphasizes in
response to these commenters that subpart H
does not alter the responsibilities title III
entities have with regard to the goods,
services, privileges, or activities offered by
public accommodations on the web.140
Commenters universally expressed their
concern that the content at issue is often
inaccessible, accentuating this problem.
Some commenters supported the
exception, generally including individuals,
public entities, and trade groups representing
public accommodations. These commenters
contended that the content at issue in this
exception should properly be considered
‘‘fluff,’’ and that it would be unrealistic to
expect tourist or small business promotion to
exist through only accessible websites. The
Department also received some examples
from commenters who supported the
exception of web content the commenters
inaccurately believed would be covered by
the exception, such as highway toll
management account websites. The
Department would have likely considered
that type of content to be required to comply
with § 35.200, even with the exception, due
to the limitation to the third-party-linked
exception as proposed in the NPRM. Many of
the comments the Department received on
this proposed exception demonstrated
confusion with how the third-party-linked
exception and its limitation as proposed in
the NPRM would apply in practice, which
would lead to misconceptions in terms of
when public entities must ensure
conformance to WCAG 2.1 and what kinds of
content individuals with disabilities can
expect to be accessible.
Approach to Linked Third-Party Content in
Subpart H of This Part
After reviewing public comments, the
Department believes that inclusion of this
exception is unnecessary, would result in
140 See U.S. Dep’t of Just., Guidance on Web
Accessibility and the ADA, ADA.gov (Mar. 18,
2022), https://www.ada.gov/resources/webguidance/ [https://perma.cc/WH9E-VTCY].
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confusion, and that removing the exception
more consistently aligns with the language of
title II of the ADA and the Department’s
intent in proposing the exception in the
NPRM.
Consistent with what many commenters
opined, the Department believes that the
proper analysis is whether an entity has
directly, or through contractual, licensing, or
other arrangements, provided or made
available the third-party content. This means
that, for example, when a public entity posts
links to third-party web content on the public
entity’s website, the links located on the
public entity’s website and the organization
of the public entity’s website must comply
with § 35.200. Further, when a public entity
links to third-party web content that is
provided by the public entity, directly or
through contractual, licensing, or other
arrangements, the public entity is also
responsible for ensuring the accessibility of
that linked content. However, when public
entities link to third-party websites, unless
the public entity has a contractual, licensing,
or other arrangement with the website to
provide or make available content, those
third-party websites are not covered by title
II of the ADA, because they are not services,
programs, or activities provided or made
available by public entities, and thus public
entities are not responsible for the
accessibility of that content.
Rather than conduct a separate analysis
under the proposed exception in the NPRM,
the Department believes the simpler and
more legally consistent approach is for public
entities to assess whether the linked thirdparty content reflects content that is covered
under subpart H of this part to determine
their responsibility to ensure the accessibility
of that content. If that content is covered, it
must be made accessible in accordance with
the requirements of § 35.200. For example, if
a public entity allows the public to pay for
highway tolls using a third-party website,
that website would be a service that the
public entity provides through arrangements
with a third party, and the toll payment
website would need to be made accessible
consistent with subpart H. However, if the
content is not provided or made available by
a public entity, directly or through
contractual, licensing, or other arrangements,
even though the public entity linked to that
content, the public entity would not be
responsible for making that content
accessible. The public entity would still need
to ensure the links themselves are accessible,
but not the unaffiliated linked third-party
content. For example, if a public entity has
a tourist information website that provides a
link to a private hotel’s website, then the
public entity would need to ensure the link
to that hotel is accessible, because the link
is part of the web content of the public entity.
The public entity would, for example, need
to ensure that the link does not violate the
minimum color contrast ratio by being too
light of a color blue against a light
background, which would make it
inaccessible to certain individuals with
disabilities.141 However, because the hotel
141 See W3C, Web Content Accessibility
Guidelines 2.1, Contrast (Minimum) (June 5, 2018),
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website itself is private and is not being
provided on behalf of the public entity due
to a contractual, licensing, or other
arrangement, the public entity would not be
responsible for ensuring the hotel website’s
ADA compliance.142
The Department believes that this
approach is consistent with what the
Department sought to achieve by including
the exception in the NPRM, so this
modification to subpart H of this part from
the proposal in the NPRM does not change
the web content that is ultimately covered by
subpart H. Rather, the Department believes
that removing the exception will alleviate the
confusion expressed by many commenters
and allow public entities to make a more
straightforward assessment of the coverage of
the web content they provide to the public
under subpart H. For example, a public entity
that links to online payment processing
websites offered by third parties to accept the
payment of fees, parking tickets, or taxes
must ensure that the third-party web content
it links to in order for members of the public
to pay for the public entity’s services,
programs, or activities complies with the web
accessibility requirements of § 35.200.
Similarly, if a public entity links to a thirdparty website that processes applications for
benefits or requests to sign up for classes or
programs the public entity offers, the public
entity is using the third party’s linked web
content as part of the public entity’s services,
programs, or activities, and the public entity
must thus ensure that it links to only thirdparty web content that complies with the
requirements of § 35.200.
The Department considered addressing
commenters’ confusion by providing more
guidance on the proposed exception, rather
than removing the exception. However, the
Department believes that the concept of an
exception for this type of content, when that
content would not be covered by title II in
the first place, would make the exception
especially prone to confusion, such that
including it in subpart H of this part even
with further explanation would be
insufficient to avoid confusion. The
Department believes that because the content
at issue would generally not be covered by
title II in the first place, including this
exception could inadvertently cause public
entities to assume that the exception is
broader than it is, which could result in the
inaccessibility of content that is critical to
accessing public entities’ services, programs,
or activities.
The Department also reviewed proposals
by commenters to both narrow and expand
the language of the exception proposed in the
NPRM. Commenters suggested narrowing the
exception by revising the limitation to cover
information that ‘‘enables or assists’’
members of the public to participate in or
https://www.w3.org/TR/2018/REC-WCAG2120180605/#contrast-minimum [https://perma.cc/
VAA3-TYN9].
142 The Department reminds the public, however,
that the hotel would still have obligations under
title III of the ADA. See U.S. Dep’t of Just.,
Guidance on Web Accessibility and the ADA,
ADA.gov (Mar. 18, 2022), https://www.ada.gov/
resources/web-guidance/ [https://perma.cc/WH9EVTCY].
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benefit from services, programs, or activities.
Commenters also proposed expanding the
exception by allowing third-party web
content to remain inaccessible if there is no
feasible manner for the content to be made
compliant with the requirements of § 35.200
or by removing the limitation. Several
commenters made additional alternative
proposals to both narrow and expand the
language of the exception. The Department
has reviewed these alternatives and is still
persuaded that the most prudent approach is
removing the exception altogether, for the
reasons described previously.
External Mobile Apps
Many public entities use mobile apps that
are developed, owned, and operated by third
parties, such as private companies, to allow
the public to access the public entity’s
services, programs, or activities. This part of
the section-by-section analysis refers to
mobile apps that are developed, owned, and
operated by third parties as ‘‘external mobile
apps.’’ 143 For example, members of the
public use external mobile apps to pay for
parking in a city (e.g., ‘‘ParkMobile’’ app 144)
or to submit non-emergency service requests
such as fixing a pothole or a streetlight (e.g.,
‘‘SeeClickFix’’ app 145). In subpart H of this
part, external mobile apps are subject to
§ 35.200 in the same way as mobile apps that
are developed, owned, and operated by a
public entity. The Department is taking this
approach because such external apps are
generally made available through contractual,
licensing, or other means, and this approach
ensures consistency with existing ADA
requirements that apply to other services,
programs, and activities that a public entity
provides in this manner. Consistent with
these principles, if a public entity, directly or
through contractual, licensing, or other
arrangements, provides or makes available an
external mobile app, that mobile app must
comply with § 35.200 unless it is subject to
one of the exceptions outlined in § 35.201.
The Department requested feedback on the
external mobile apps that public entities use
to offer their services, programs, or activities
and received comments on its approach to
external mobile apps. Commenters pointed
out that external mobile apps are used for a
variety of purposes by public entities,
including for public information, updates on
road conditions, transportation purposes,
information on recreation, class information,
map-based tools for finding specific
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143 The
Department does not use the term ‘‘thirdparty’’ to describe mobile apps in this section to
avoid confusion. It is the Department’s
understanding that the term ‘‘third-party mobile
app’’ may have a different meaning in the
technology industry, and some understand ‘‘a thirdparty 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/thirdparty-apps/ [https://perma.cc/SBW3-RRGN].
144 See ParkMobile Parking App, https://
parkmobile.io [https://perma.cc/G7GY-MDFE].
145 See Using Mobile Apps in Government, IBM
Ctr. for the Bus. of Gov’t, at 32–33 (2015), https://
www.businessofgovernment.org/sites/default/files/
Using%20Mobile%20Apps%20in%
20Government.pdf [https://perma.cc/248X-8A6C].
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information like air quality, and emergency
planning, among other things.
Commenters overwhelmingly supported
the Department’s position to not include a
wholesale exception for every external
mobile app, given how often these apps are
used in public entities’ services, programs,
and activities. As commenters noted, the
public’s reliance on mobile devices makes
access to external apps critical, and
commenters shared their belief that the usage
of mobile devices, like smartphones, will
increase in the coming years. For example,
some commenters indicated that many
individuals with disabilities, especially those
with vision disabilities, primarily rely on
smartphones rather than computers, and if
mobile apps are not accessible, then people
who are blind or have low vision would need
to rely on others to use apps that include
sensitive data like bank account information.
Accordingly, commenters argued there
should be little, if any, difference between
the information and accessibility provided
using a mobile app and a conventional web
browser, and if the Department were to
provide an exception for external mobile
apps, commenters said that there would be
a large loophole for accessibility because so
many members of the public rely on external
mobile apps to access a public entity’s
services, programs, or activities.
Some commenters sought clarity on the
scope of external mobile apps that might be
covered by subpart H of this part, such as
whether apps used to vote in an election held
by a public entity would be covered. Under
subpart H, external mobile apps that public
entities provide or make available, including
apps used in a public entity’s election, would
be covered by subpart H. As discussed in the
section-by-section analysis of § 35.200,
subpart H applies to a mobile app even if the
public entity does not create or own the
mobile app, if there is a contractual,
licensing, or other arrangement through
which the public entity provides or makes
the mobile app available to the public.
Some commenters raised concerns with
applying accessibility standards to external
mobile apps that a public entity provides or
makes available, directly or through
contractual, licensing, or other arrangements.
Specifically, commenters indicated there
may be challenges related to costs, burdens,
and cybersecurity with making these apps
accessible and, because external mobile apps
are created by third-party vendors, public
entities may have challenges in ensuring that
these apps are accessible. Accordingly, some
commenters indicated the Department
should set forth an exception for external
mobile apps. Another commenter suggested
that the Department should delay the
compliance date of subpart H of this part to
ensure there is sufficient time for external
mobile apps subject to § 35.200 to come into
compliance with the requirements in subpart
H.
While the Department understands these
concerns, the Department believes that the
public relies on many public entities’
external mobile apps to access public
entities’ services, programs, or activities, and
setting forth an exception for these apps
would keep public entities’ services,
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programs, or activities inaccessible in
practice for many individuals with
disabilities. The Department believes that
individuals with disabilities should not be
excluded from these government services
because the external mobile apps on which
public entities rely are inaccessible. In
addition, this approach of applying ADA
requirements to services, programs, or
activities that a public entity provides
through a contractual, licensing, or other
arrangement with a third party is consistent
with the existing framework in title II of the
ADA.146 Under this framework, public
entities have obligations in other title II
contexts where they choose to contract,
license, or otherwise arrange with third
parties to provide services, programs, or
activities.147
With respect to concerns about an
appropriate compliance date, the section-bysection analysis of § 35.200 addresses this
issue. The Department believes the
compliance dates in subpart H of this part
will provide sufficient time for public
entities to ensure they are in compliance
with the requirements of subpart H. Further
lengthening the compliance dates would only
further extend the time that individuals with
disabilities remain excluded from the same
level of access to public entities’ services,
programs, and activities through mobile
apps.
Previously Proposed Exceptions for
Password-Protected Class or Course Content
of Public Educational Institutions
In the NPRM, the Department proposed
exceptions to the requirements of § 35.200 for
certain password-protected class or course
content of public elementary, secondary, and
postsecondary institutions.148 For the reasons
discussed in this section, the Department has
decided not to include these exceptions in
subpart H of this part.149 Accordingly, under
subpart H, password-protected course
content will be treated like any other content
and public educational institutions will
generally need to ensure that that content
complies with WCAG 2.1 Level AA starting
two or three years after the publication of the
final rule, depending on whether the public
educational institution is covered by
§ 35.200(b)(1) or (2).
146 See
§ 35.130(b)(1) and (3).
example, under title II, a State is required
to make sure that the services, programs, or
activities offered by a State park inn that is operated
by a private entity under contract with the State
comply with title II. See 56 FR 35694, 35696 (July
26, 1991).
148 See 88 FR 52019.
149 Some commenters asked for clarification about
how the proposed course content exceptions would
operate in practice. For example, one commenter
asked for clarification about what it would mean for
a public educational institution to be ‘‘on notice’’
about the need to make course content accessible
for a particular student, one of the limitations
proposed in the NPRM. Because the Department is
eliminating the course content exceptions from
subpart H of this part, these questions about how
the exceptions would have operated are moot and
are not addressed in subpart H.
147 For
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Course Content Exceptions Proposed in the
NPRM
The NPRM included two proposed
exceptions for password-protected class or
course content of public educational
institutions. The first proposed exception,
which was included in the NPRM as
proposed § 35.201(e),150 stated that the
requirements of § 35.200 would not apply to
course content available on a public entity’s
password-protected or otherwise secured
website for admitted students enrolled in a
specific course offered by a public
postsecondary institution.151 Although the
proposed exception applied to passwordprotected course content, it did not apply to
the Learning Management System platforms
on which public educational institutions
make content available.152
This proposed exception was cabined by
two proposed limitations, which are
scenarios under which the proposed
exception would not apply. The first such
limitation provided that the proposed
exception would not apply if a public entity
is on notice that an admitted student with a
disability is pre-registered in a specific
course offered by a public postsecondary
institution and that the student, because of a
disability, would be unable to access the
content available on the public entity’s
password-protected or otherwise secured
website for the specific course.153 In those
circumstances, the NPRM proposed, all
content available on the public entity’s
password-protected or otherwise secured
website for the specific course must comply
with the requirements of § 35.200 by the date
the academic term begins for that course
offering, and new content added throughout
the term for the course must also comply
with the requirements of § 35.200 at the time
it is added to the website.154
The second limitation to the proposed
exception for public postsecondary
institutions’ course content provided that the
exception would not apply once a public
entity is on notice that an admitted student
with a disability is enrolled in a specific
course offered by a public postsecondary
institution after the start of the academic
term and that the student, because of a
disability, would be unable to access the
content available on the public entity’s
password-protected or otherwise secured
website for the specific course.155 In those
circumstances, the NPRM proposed, all
content available on the public entity’s
password-protected or otherwise secured
website for the specific course must comply
with the requirements of § 35.200 within five
business days of such notice, and new
content added throughout the term for the
course must also comply with the
requirements of § 35.200 at the time it is
added to the website.156
150 Section 35.201(e) no longer refers to a course
content exception, but now refers to a different
exception for preexisting social media posts, as
discussed in this section.
151 88 FR 52019.
152 Id. at 51970.
153 Id. at 52019.
154 Id.
155 Id.
156 Id.
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The second proposed course content
exception, which was included in the NPRM
as § 35.201(f), proposed the same exception
as proposed § 35.201(e), but for public
elementary and secondary schools. The
proposed exception also contained the same
limitations and timing requirements as the
proposed exception for public postsecondary
schools, but the limitations to the exception
would have applied not only when there was
an admitted student with a disability
enrolled in the course whose disability made
them unable to access the course content, but
also when there was a parent with a
disability whose child was enrolled in the
course and whose disability made them
unable to access the course content.157
The Department proposed these exceptions
in the NPRM based on its initial assessment
that it might be too burdensome to require
public educational institutions to make
accessible all of the course content that is
available on password-protected websites,
particularly given that content can be
voluminous and that some courses in
particular terms may not include any
students with disabilities or students whose
parents have disabilities. However, the
Department recognized in the NPRM that it
is critical for students with disabilities to
have access to course content for the courses
in which they are enrolled; the same is true
for parents with disabilities in the context of
public elementary and secondary schools.
The Department therefore proposed
procedures that a public educational
institution would have to follow to make
course content accessible on an
individualized basis once the institution was
on notice that there was a student or parent
who needed accessible course content
because of a disability. Because of the need
to ensure prompt access to course content,
the Department proposed to require public
educational institutions to act quickly upon
being on notice of the need for accessible
content; public entities would have been
required to provide accessible course content
either by the start of the term if the
institution was on notice before the date the
term began, or within five business days if
the institution was on notice after the start
of the term.
The Department stated in the NPRM that
it believed the proposed exceptions for
password-protected course content struck the
proper balance between meeting the needs of
students and parents with disabilities while
crafting a workable standard for public
entities, but it welcomed public feedback on
whether alternative approaches might strike
a more appropriate balance.158 The
Department also asked a series of questions
about whether these exceptions were
necessary or appropriate.159 For example, the
Department asked how difficult it would be
for public educational institutions to comply
with subpart H of this part in the absence of
these exceptions, what the impact of the
exceptions would be on individuals with
disabilities, how long it takes to make course
content accessible, and whether the
Department should consider an alternative
approach.160
Public Comments on Proposed Course
Content Exceptions
The overwhelming majority of comments
on this topic expressed opposition to the
course content exceptions as proposed in the
NPRM. Many commenters suggested that the
Department should take an alternative
approach on this issue; namely, the
exceptions should not be included in subpart
H of this part. Having reviewed the public
comments and given careful additional
consideration to this issue, the Department
has decided not to include these exceptions
in subpart H. The public comments
supported the conclusion that the exceptions
would exacerbate existing educational
inequities for students and parents with
disabilities without serving their intended
purpose of meaningfully alleviating burdens
for public educational institutions.
Infeasibility for Public Educational
Institutions
Many commenters, including some
commenters affiliated with public
educational institutions, asserted that the
course content exceptions and limitations as
proposed in the NPRM would not be
workable for schools, and would almost
inevitably result in delays in access to course
content for students and parents with
disabilities. Commenters provided varying
reasons for these conclusions.
Some commenters argued that because
making course content accessible often takes
time and intentionality to implement, it is
more efficient and effective for public
educational institutions to create policies and
procedures to make course content accessible
proactively, without waiting for a student
with a disability (or student with a parent
with a disability) to enroll and then making
content accessible reactively.161 Some
commenters pointed out that although the
Department proposed the course content
exceptions in an effort to make it easier for
public educational institutions to comply
with subpart H of this part, the exceptions
would in fact likely result in more work for
entities struggling to remediate content on
the back end.
Commenters noted that in many cases,
public educational institutions do not
generate course content themselves, but
instead procure such content through thirdparty vendors. As a result, some commenters
stated, public educational institutions may be
dependent on vendors to make their course
content accessible, many of which are unable
or unwilling to respond to ad hoc requests for
accessibility within the expedited time
frames that would be required to comply
with the limitations to the proposed
exceptions. Some commenters argued that it
is more efficient and effective to incentivize
third-party vendors to make course content
produced for public educational institutions
accessible on the front end. Otherwise, some
commenters contended, it may fall to
160 Id.
157 Id.
158 Id.
159 Id.
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comments on this topic indicated that
they were drawing from the philosophy of
‘‘universal design.’’ See, e.g., 29 U.S.C. 3002(19).
161 Many
at 51973, 51976.
at 51973, 51974, 51976.
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individual instructors to scramble to make
course content accessible at the last minute,
regardless of those instructors’ background or
training on making content accessible, and
despite the fact that many instructors already
have limited time to devote to teaching and
preparing for class. One commenter noted
that public educational institutions can
leverage their contracting power to choose
only to work with third-party vendors that
can offer accessible content. This commenter
noted that there is precedent for this
approach, as many universities and college
stores already leverage their contracting
power to limit participation in certain
student discount programs to third-party
publishers that satisfy accessibility
requirements. Some commenters suggested
that rulemaking in this area will spur
vendors, publishers, and creators to improve
the accessibility of their offerings.
Some commenters also observed that even
if public educational institutions might be
able to make a subset of content accessible
within the compressed time frames provided
under the proposed exceptions, it could be
close to impossible for institutions to do so
for all course content for all courses, given
the wide variation in the size and type of
course content. Some commenters noted that
content for science, technology, engineering,
and mathematics courses may be especially
difficult to remediate under the expedited
time frames provided under the proposed
exceptions. Some commenters indicated that
it is more effective for public educational
institutions to conduct preparations in
advance to make all materials accessible from
the start. One commenter asserted that
remediating materials takes, on average,
twice as long as developing materials that are
accessible from the start. Some commenters
also pointed out that it might be confusing
for public educational institutions to have
two separate standards for the accessibility of
course content depending on whether there
is a student (or student with a parent) with
a disability in a particular course.
Many commenters took particular issue
with the five-day remediation time frame for
course content when a school becomes on
notice after the start of the term that there is
a student or parent with a disability who
needs accessible course content. Some
commenters argued that this time frame was
too short for public entities to ensure the
accessibility of all course content for a
particular course, while simultaneously
being too long to avoid students with
disabilities falling behind. Some commenters
noted that the five-day time frame would be
particularly problematic for short courses
that occur during truncated academic terms,
which may last only a small number of days
or weeks.
Some commenters also argued that the
course content exceptions would create a
series of perverse incentives for public
educational institutions and the third-party
vendors with whom they work, such as
incentivizing institutions to neglect
accessibility until the last minute and
attempt to rely on the fundamental alteration
or undue burdens limitations more
frequently when they are unable to comply
as quickly as required under subpart H of this
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part. Some commenters also contended that
the course content exceptions would
undermine public educational institutions’
settled expectations about what level of
accessibility is required for course content
and would cause the institutions that already
think about accessibility proactively to
regress to a more reactive model. Some
commenters asserted that because the course
content exceptions would cover only
password-protected or otherwise secured
content, the exceptions would also
incentivize public educational institutions to
place course content behind a passwordprotected wall, thereby making less content
available to the public as a whole.
Some commenters asserted that if the
exceptions were not included in subpart H of
this part, the existing fundamental alteration
and undue burdens limitations would
provide sufficient protection for public
educational institutions. One commenter also
suggested that making all course content
accessible would offer benefits to public
educational institutions, as accessible
content often requires less maintenance than
inaccessible content and can more readily be
transferred between different platforms or
accessed using different tools. This
commenter contended that by relying on
accessible content, public educational
institutions would be able to offer better
services to all students, because accessible
content is more user friendly and provides
value for all users.
Some commenters pointed out that there
are other factors that will ease the burden on
public educational institutions of complying
with subpart H of this part without the
course content exceptions proposed in the
NPRM. For example, one commenter
reported that elementary and secondary
curriculum materials are generally procured
at the district level. Thus, course content is
generally the same for all schools in a given
district. This commenter argued that school
districts could therefore address the
accessibility of most course materials for all
schools in their district at once by making
digital accessibility an evaluation criterion in
their procurement process.
Impact on Individuals With Disabilities
As noted elsewhere in this appendix, many
commenters asserted that the course content
exceptions proposed in the NPRM could
result in an untenable situation in which
public educational institutions would likely
be unable to fully respond to individualized
requests for accessible materials, potentially
leading to widespread noncompliance with
the technical standard and delays in access
to course content for students and parents
with disabilities. Many commenters
emphasized the negative impact that this
situation would have on individuals with
disabilities.
Some commenters highlighted the
pervasive discrimination that has affected
generations of students with disabilities and
prevented them from obtaining equal access
to education, despite existing statutory and
regulatory obligations. As one recent
example, some commenters cited studies
conducted during the COVID–19 pandemic
that demonstrated inequities in access to
education for students with disabilities,
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31373
particularly in the use of web-based
educational materials.162 Commenters stated
that due to accessibility issues, students with
disabilities have sometimes been unable to
complete required assignments, needed
continuous support from others to complete
their work, and as a result have felt
frustrated, discouraged, and excluded. Some
commenters also reported that some students
with disabilities have dropped a class, taken
an incomplete, or left their academic program
altogether because of the inaccessibility of
their coursework. Some commenters argued
that the proposed course content exceptions
would exacerbate this discouraging issue and
would continue to exclude students with
disabilities from equally accessing an
education and segregate them from their
classmates.
Some commenters contended that the
proposed exceptions would perpetuate the
status quo by inappropriately putting the
onus on students (or parents) with
disabilities to request accessible materials on
an individualized basis. Some commenters
asserted that this can be problematic because
some individuals may not recognize that they
have an accessibility need that their school
could accommodate and because requesting
accessible materials is sometimes
burdensome and results in unfair stigma or
invasions of privacy. Some commenters
noted that this may result in students or
parents with disabilities not requesting
accessible materials. Some commenters also
argued that because these proposed
exceptions would put public educational
institutions in a reactionary posture and
place burdens on already-overburdened
instructors, some instructors and institutions
might view requesting students as an
inconvenience, in spite of their obligations
not to discriminate against those students.
One commenter noted that constantly having
to advocate for accessibility for years on end
can be exhausting for students with
disabilities and damaging to their selfesteem, sense of belonging, and ability to
engage in academic exploration.
Some commenters also noted that the
structure of the proposed exceptions would
be in significant tension with the typical
structure of a public educational institution’s
academic term. For example, some
162 Arielle M. Silverman et al., Access and
Engagement III: Reflecting on the Impacts of the
COVID–19 Pandemic on the Education of Children
Who Are Blind or Have Low Vision, Am. Found. for
the Blind (June 2022), https://afb.org/sites/default/
files/2022-06/AFB_AccessEngagement_III_Report_
Accessible_FINAL.pdf (A Perma archive link was
unavailable for this citation.); L. Penny Rosenblum
et al., Access and Engagement II: An Examination
of How the COVID–19 Pandemic Continued to
Impact Students with Visual Impairments, Their
Families, and Professionals Nine Months Later, Am.
Found. for the Blind (May 2021), https://
static.afb.org/legacy/media/AFB_
AccessEngagement_II_Accessible_F2.pdf?_
ga=2.176468773.1214767753 [https://perma.cc/
H5P4-JZAB]; see also L. Penny Rosenblum et al.,
Access and Engagement: Examining the Impact of
COVID–19 on Students Birth–21 with Visual
Impairments, Their Families, and Professionals in
the United States and Canada, Am. Found. for the
Blind (Oct. 2020), https://afb.org/sites/default/files/
2022-03/AFB_Access_Engagement_Report_Revised03-2022.pdf [https://perma.cc/T3AY-ULAQ].
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commenters noted that students, particularly
students at public postsecondary institutions,
often have the opportunity to electronically
review course syllabi and materials and
‘‘shop’’ the first sessions(s) of a particular
course to determine whether they wish to
enroll, enroll in a course late, or drop a
course. Commenters stated that because these
processes typically unfold quickly and early
in the academic term, the proposed course
content exceptions would make it hard or
impossible for students with disabilities to
take advantage of these options that are
available to other students. Commenters also
noted that the course content exceptions
could interfere with students’ ability to
transfer to a new school in the middle of a
term.
Some commenters also stated many other
ways in which the delays in access to course
content likely resulting from these exceptions
could disadvantage students with
disabilities. Some commenters noted that
even if public educational institutions were
able to turn around accessible materials
within the compressed time frames provided
under the proposed exceptions—an unlikely
result, for the reasons noted elsewhere in this
appendix—students with disabilities still
might be unable to access course materials as
quickly as would be needed to fully
participate in their courses. For example,
some commenters stated that because
students are often expected to complete
reading assignments before the first day of
class, it is problematic that the proposed
exceptions did not require public educational
institutions to make course content
accessible before the first day of class for
students who preregister. Some commenters
also observed that because some students
with disabilities do not file accessibility
requests until after the start of the academic
term, it would be impossible to avoid delays
in access to course materials under the
exceptions. Some commenters also noted that
students are often expected to collaborate on
assignments, and even a brief delay in access
to course material could make it challenging
or impossible for students with disabilities to
participate in that collaborative process.
Some commenters argued that in the likely
outcome that schools are unable to provide
accessible course content as quickly as the
proposed limitations to the exceptions would
require, the resulting delays could cause
students with disabilities to fall behind in
course readings and assignments, sometimes
forcing them to withdraw from or fail the
course. Some commenters noted that even if
students were able to rely on others to assist
them in reviewing inaccessible course
materials, doing so is often slower and less
effective, and can have a negative emotional
effect on students, undermining their senses
of independence and self-sufficiency.
Some commenters took particular issue
with the proposed exception for
postsecondary course content. For example,
some commenters asserted that it is often
more onerous and complicated for students
with disabilities to obtain accessible
materials upon request in the postsecondary
context, given that public postsecondary
schools are not subject to the same
obligations as public elementary and
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secondary institutions to identify students
with disabilities under other laws addressing
disability rights in the educational context.
Accordingly, those commenters argued, the
proposed exceptions might be especially
harmful for postsecondary students with
disabilities.
Other commenters argued that the
proposed exception for elementary and
secondary course content was especially
problematic because it would affect virtually
every child with a disability in the country.
Some commenters contended that this
exception would undermine the
requirements of other laws addressing
disability rights in the educational context.
Some commenters also noted that in the
elementary and secondary school context,
password-protected course sites often enable
parents to communicate with their children’s
teachers, understand what their children are
learning, keep track of any potential issues
related to their child’s performance, review
time-sensitive materials like permission
slips, and obtain information about important
health and safety issues affecting their
children. Some commenters opined that the
proposed course content exceptions could
make it hard or impossible for parents with
disabilities to be involved in their children’s
education in these ways.
Some commenters contended that the
proposed course content exceptions would
be problematic in the wake of the COVID–19
pandemic, which has led to a rise in purely
online courses. One commenter pointed out
that students with disabilities may be more
likely to enroll in purely online courses for
a variety of reasons, including that digital
content tends to be more flexible and
operable with assistive devices, and it is
therefore especially important to ensure that
online courses are fully accessible. At least
one commenter also stated that the proposed
course content exceptions would have
treated students—some of whom pay
tuition—less favorably than the general
public with respect to accessible materials.
Although the Department anticipated that
the limitations to the proposed course
content exceptions would naturally result in
course materials becoming accessible over
time, some commenters took issue with that
prediction. Some commenters argued that
because there is significant turnover in
instructors and course content, and because
the proposed limitations to the exceptions
did not require content to remain accessible
once a student with a disability was no
longer in a particular course, the limitations
to the exceptions as drafted in the NPRM
would not be likely to ensure a fully
accessible future in this area.
Limited Support for Course Content
Exceptions
Although many commenters expressed
opposition to the course content exceptions,
some commenters, including some
commenters affiliated with public
educational institutions, expressed support
for some form of exception for course
content. Some commenters argued that it
would be very challenging or infeasible for
public educational institutions to comply
with subpart H of this part in the absence of
an exception, particularly when much of the
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content is controlled by third-party vendors.
Some commenters also noted that public
educational institutions may be short-staffed
and have limited resources to devote towards
accessibility. Some commenters stated that
frequent turnover in faculty may make it
challenging to ensure that faculty members
are trained on accessibility issues. One
commenter pointed out that requiring
schools to make all course content accessible
may present challenges for professors, some
of whom are accustomed to being able to
select course content without regard to its
accessibility. Notably, however, even among
those commenters who supported the
concept of an exception, many did not
support the exceptions as drafted in the
NPRM, in part because they did not believe
the proposed remediation time frames were
realistic.
Approach to Course Content in Subpart H of
This Part
Having reviewed the public comments, the
Department believes it is appropriate to, as
many commenters suggested, not include the
previously proposed course content
exceptions in subpart H of this part. For
many of the reasons noted by commenters,
the Department has concluded that the
proposed exceptions would not meaningfully
ease the burden on public educational
institutions and would significantly
exacerbate educational inequities for
students with disabilities. The Department
has concluded that the proposed exceptions
would have led to an unsustainable and
infeasible framework for public entities to
make course content accessible, which would
not have resulted in reliable access to course
content for students with disabilities. As
many commenters noted, it would have been
extremely burdensome and sometimes even
impossible for public educational institutions
to comply consistently with the rapid
remediation time frames set forth in the
limitations to the proposed exceptions in the
NPRM, which would likely have led to
widespread delays in access to course
content for students with disabilities. While
extending the remediation time frames might
have made it more feasible for public
educational institutions to comply under
some circumstances, this extension would
have commensurately delayed access for
students with disabilities, which would have
been harmful for the many reasons noted by
commenters. The Department believes that it
is more efficient and effective for public
educational institutions to use the two- or
three-year compliance time frame to prepare
to make course content accessible
proactively, instead of having to scramble to
remediate content reactively.
Accordingly, under subpart H of this part,
password-protected course content will be
treated like any other content and will
generally need to conform to WCAG 2.1
Level AA. To the extent that it is burdensome
for public educational institutions to make
all of their content, including course content,
accessible, the Department believes subpart
H contains a series of mechanisms that are
designed to make it feasible for these
institutions to comply, including the delayed
compliance dates discussed in § 35.200, the
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other exceptions discussed in § 35.201, the
provisions relating to conforming alternate
versions and equivalent facilitation discussed
in §§ 35.202 and 35.203, the fundamental
alteration and undue burdens limitations
discussed in § 35.204, and the approach to
measuring compliance with § 35.200
discussed in § 35.205.
Alternative Approaches Considered
There were some commenters that
supported retaining the proposed course
content exceptions with revisions.
Commenters suggested a wide range of
specific revisions, examples of which are
discussed in this section. The Department
appreciates the variety of thoughtful
approaches that commenters proposed in
trying to address the concerns that would
arise under the previously proposed course
content exceptions. However, for the reasons
noted in this section, the Department does
not believe that the commenters’ proposed
alternatives would avoid the issues
associated with the exceptions proposed in
the NPRM. In addition, although many
commenters suggested requiring public
entities to follow specific procedures to
comply with subpart H of this part, the sheer
variety of proposals the Department received
from commenters indicates the harm from
being overly prescriptive in how public
educational institutions comply with subpart
H. Subpart H provides educational
institutions with the flexibility to determine
how best to bring their content into
compliance within the two or three years
they have to begin complying with subpart H.
Many commenters suggested that the
Department should require all new course
content to be made accessible more quickly,
while providing a longer time period for
public entities to remediate existing course
content. There were a wide range of
proposals from commenters about how this
could be implemented. Some commenters
suggested that the Department could set up
a prioritization structure for existing content,
requiring public educational institutions to
prioritize the accessibility of, for example,
entry-level course content; content for
required courses; content for high-enrollment
courses; content for courses with high rates
of droppage, withdrawal, and failing grades;
content for the first few weeks of all courses;
or, in the postsecondary context, content in
academic departments in which students
with disabilities have decided to major.
The Department does not believe this
approach would be feasible. Treating new
course content differently than existing
course content could result in particular
courses being partially accessible and
partially inaccessible, which could be
confusing for both educational institutions
and students, and make it challenging for
students with disabilities to have full and
timely access to their courses. Moreover,
even under this hybrid approach, the
Department would presumably need to retain
remediation time frames for entities to meet
upon receiving a request to make existing
course content accessible. For the reasons
discussed in this section, it would be
virtually impossible to set forth a
remediation time frame that would provide
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public educational institutions sufficient
time to make content accessible without
putting students with disabilities too far
behind their peers. In addition, given the
wide variation in types of courses and public
educational institution structures, it would
be difficult to set a prioritization structure for
existing content that would be workable
across all such institutions.
Some commenters suggested that the
Department should set an expiration date for
the course content exceptions. The
Department does not believe this would be a
desirable solution because the problems
associated with the proposed exceptions—
namely the harm to individuals with
disabilities stemming from delayed access to
course content and the likely infeasibility of
complying with the expedited time frames
set forth in the limitations to the
exceptions—would likely persist during the
lifetime of the exceptions.
Some commenters suggested that the
Department could retain the exceptions and
accompanying limitations but revise their
scope. For example, commenters suggested
that the Department could revise the
limitations to the exceptions to require
public educational institutions to comply
only with the WCAG 2.1 success criteria
relevant to the particular student requesting
accessible materials. Although this might
make it easier for public educational
institutions to comply in the short term, this
approach would still leave public entities in
the reactionary posture that so many other
commenters criticized in this context and
would dramatically reduce the speed at
which course content would become
accessible to all students. As another
example, some commenters recommended
that instead of creating exceptions for all
password-protected course content, the
Department could create exceptions from
complying with particular WCAG 2.1 success
criteria that may be especially onerous. The
Department does not believe this piecemeal
approach is advisable, because it would
result in course content being only partially
accessible, which would reduce
predictability for individuals with
disabilities. This approach could also make
it confusing for public entities to determine
the applicable technical standard. Some
commenters suggested that the Department
should require public entities to prioritize
certain types of content that are simpler to
remediate. Others suggested that the
Department could require certain
introductory course documents, like syllabi,
to be accessible across the board. One
commenter suggested that the Department
require public educational institutions to
make 20 percent of their course materials
accessible each semester. The Department
believes that these types of approaches
would present similar issues as those
discussed in this paragraph and would result
in courses being only partially accessible,
which would reduce predictability for
individuals with disabilities and clarity for
public entities. These approaches would also
limit the flexibility that public entities have
to bring their content into compliance in the
order that works best for them during the two
or three years they have to begin complying
with subpart H of this part.
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Some commenters suggested that the
Department should revise the remediation
timelines in the limitations to the course
content exceptions. For example, one
commenter suggested that the five-day
remediation time frame should be reduced to
three days. Another commenter suggested the
five-day remediation time frame could be
expanded to 10 to 15 days. Some commenters
suggested that the time frame should be factdependent and should vary depending on
factors such as how often the class meets and
the type of content. Others recommended
that the Department not adopt a specific
required remediation time frame, but instead
provide that a 10-business-day remediation
time frame would be presumptively
permissible.
The conflicting comments on this issue
illustrate the challenges associated with
setting remediation time frames in this
context. If the Department were to shorten
the remediation time frames, it would make
it even harder for public educational
institutions to comply, and commenters have
already indicated that the previously
proposed remediation time frames would not
be workable for those institutions. If the
Department were to lengthen the remediation
time frames, it would further exacerbate the
inequities for students with disabilities that
were articulated by commenters. The
Department believes the better approach is to
not include the course content exceptions in
subpart H of this part to avoid the need for
public educational institutions to make
content accessible on an expedited time
frame on the back end, and to instead require
public entities to treat course content like
any other content covered by subpart H.
Some commenters suggested that the
Department should take measures to ensure
that once course content is accessible, it stays
accessible, including by requiring
institutions to regularly conduct course
accessibility checks. Without the course
content exceptions proposed in the NPRM,
the Department believes these commenters’
concerns are addressed because course
content will be treated like all other content
under § 35.200, which requires public
entities to ensure on an ongoing basis that the
web content and mobile apps they provide or
make available are readily accessible to and
usable by individuals with disabilities.
Some commenters suggested that the
Department should give public educational
institutions additional time to comply with
subpart H of this part beyond the compliance
time frames specified in § 35.200(b). The
Department does not believe this would be
appropriate. Although the requirement for
public educational institutions to provide
accessible course content and comply with
title II is not new, this requirement has not
resulted in widespread equal access for
individuals with disabilities to public
entities’ web content and mobile apps.
Giving public educational institutions
additional time beyond the two- to three-year
compliance time frames set forth in
§ 35.200(b) would potentially prolong the
exclusion of individuals with disabilities
from certain educational programs, which
would be especially problematic given that
some of those programs last only a few years
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in total, meaning that individuals with
disabilities might, for example, be unable to
access their public university’s web content
and mobile apps for the entire duration of
their postsecondary career. While access to
public entities’ web content and mobile apps
is important for individuals with disabilities
in all contexts, it is uniquely critical to the
public educational experience for students
with disabilities, because exclusion from that
content and those apps would make it
challenging or impossible for those
individuals to keep up with their peers and
participate in their courses, which could
have lifelong effects on career outcomes. In
addition, the Department received feedback
indicating that the course content offered by
many public educational institutions is
frequently changing. The Department is
therefore not convinced that giving public
educational institutions additional time to
comply with subpart H would provide
meaningful relief to those entities. Public
educational institutions will continually
need to make new or changed course content
accessible after the compliance date.
Extending the compliance date would,
therefore, provide limited relief while having
a significant negative impact on individuals
with disabilities. Moreover, regardless of the
compliance date of subpart H, public
educational institutions have an ongoing
obligation to ensure that their services,
programs, and activities offered using web
content and mobile apps are accessible to
individuals with disabilities on a case-bycase basis in accordance with their existing
obligations under title II of the ADA.163
Accordingly, even if the Department were to
further delay the compliance time frames for
public educational institutions, those
institutions would not be able to simply defer
all accessibility efforts in this area. The
Department also believes it is appropriate to
treat public educational institutions the same
as other public entities with respect to
compliance time frames, which will promote
consistency and predictability for individuals
with disabilities. Under this approach, some
public educational institutions will qualify as
small public entities and will be entitled to
an extra year to comply, while other public
educational institutions in larger
jurisdictions will need to comply within two
years.
Some commenters recommended that the
Department give public educational
institutions more flexibility with respect to
their compliance with subpart H of this part.
For example, some commenters suggested
that the Department should give public
educational institutions additional time to
conduct an assessment of their web content
and mobile apps and develop a plan for
achieving compliance. Some commenters
suggested the Department should give public
educational institutions flexibility to stagger
their compliance as they see fit and to focus
on the accessibility of those materials that
they consider most important. The
Department does not believe such deference
is appropriate. As history has demonstrated,
requiring entities to comply with their
nondiscrimination obligations without
163 See
§§ 35.130(b)(1)(ii) and (7) and 35.160.
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setting clear and predictable standards for
when content must be made accessible has
not resulted in widespread web and mobile
app accessibility. The Department therefore
believes it is critical to establish clear and
consistent requirements for public entities to
follow in making their web content and
mobile apps accessible.
As noted in the preceding paragraph,
although the Department believes it is
important to set clear and consistent
requirements for public educational
institutions, the Department does not believe
it is appropriate to be overly prescriptive
with respect to the procedures that those
institutions must follow to comply with
subpart H of this part. Some commenters
suggested that the Department should require
public educational institutions to take
particular steps to comply with subpart H,
such as by holding certain trainings for
faculty and staff and dedicating staff
positions and funding to accessibility. The
Department believes it is appropriate to allow
public educational institutions to determine
how best to allocate their resources, so long
as they satisfy the requirements of subpart H.
Some commenters suggested that the
Department should adopt a more permissive
approach to conforming alternate versions for
public educational institutions. Commenters
also suggested that the Department allow
public educational institutions to provide an
equally effective method of alternative access
in lieu of directly accessible, WCAG 2.1
Level AA-conforming versions of materials.
For the reasons noted in the discussion of
§ 35.202 in this appendix, the Department
believes that permitting public entities to rely
exclusively on conforming alternate versions
when doing so is not necessary for technical
or legal reasons could result in segregation of
people with disabilities, which would be
inconsistent with the ADA’s core principles
of inclusion and integration.164 The same
rationale would apply to public educational
institutions that wish to provide an equally
effective method of alternative access to
individuals with disabilities.
Some commenters argued that the
Department should provide additional
resources, funding, and guidance to public
educational institutions to help them comply
with subpart H of this part. The Department
notes that it will issue a small entity
compliance guide,165 which should help
public educational institutions better
understand their obligations under subpart
H. The Department also notes that there are
free and low-cost training materials available
that would help public entities to produce
content compliant with WCAG 2.1 Level AA.
In addition, although the Department does
not currently operate a grant program to
164 See, e.g., 42 U.S.C. 12101(a)(2) (finding that
society has tended to isolate and segregate
individuals with disabilities); § 35.130(b)(1)(iv)
(stating that public entities generally may not
provide different or separate aids, benefits, or
services to individuals with disabilities than is
provided to others unless such action is necessary);
id. § 35.130(d) (requiring that public entities
administer services, programs, and activities in the
most integrated setting appropriate).
165 See Public Law 104–121, sec. 212, 110 Stat. at
858.
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assist public entities in complying with the
ADA, the Department will consider offering
additional technical assistance and guidance
in the future to help entities better
understand their obligations.
One commenter suggested that the
Department should create a list of approved
third-party vendors for public educational
institutions to use to obtain accessible
content. Any such specific list that the
Department could provide is unlikely to be
helpful given the rapid pace at which
software and contractors’ availability
changes. Public entities may find it useful to
consult other publicly available resources
that can assist in selecting accessibility
evaluation tools and experts.166 Public
entities do not need to wait for the
Department’s guidance before consulting
with technical experts and using resources
that already exist.
One commenter suggested that the
Department should require public
educational institutions to offer mandatory
courses on accessibility to students pursuing
degrees in certain fields, such as computer
science, information technology, or computer
information systems. This commenter argued
that this approach would increase the
number of information technology
professionals in the future who have the
skills to make content accessible. The
Department believes this suggestion is
outside of the scope of subpart H of this part,
which focuses on web and mobile app
accessibility under title II. The Department
notes that public educational institutions are
free to offer such courses if they so choose.
One commenter suggested that if the
course content exceptions were retained, the
Department should explicitly require public
educational institutions to provide clear
notice to students with disabilities on
whether a particular piece of course content
is accessible and how to request accessible
materials. The Department believes these
concerns are addressed by the decision not
to include the course content exceptions in
subpart H of this part, which should
generally obviate the need for students with
disabilities to make individualized requests
for course content that complies with WCAG
2.1 Level AA.
Many commenters expressed concern
about the extent to which public educational
institutions are dependent on third parties to
ensure the accessibility of course content,
and some commenters suggested that instead
of or in addition to regulating public
educational institutions, the Department
should also regulate the third parties with
which those institutions contract to provide
course materials. Because subpart H of this
part is issued under title II of the ADA, it
does not apply to private third parties, and
the ultimate responsibility for complying
with subpart H rests with public entities.
However, the Department appreciates the
concerns expressed by commenters that
public educational institutions may have
limited power to require third-party vendors
to make content accessible on an expedited,
166 See, e.g., W3C, Evaluating Web Accessibility
Overview, https://www.w3.org/WAI/test-evaluate/
[https://perma.cc/6RDS-X6AR] (Aug. 1, 2023).
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last-minute basis. The Department believes
that not including the course content
exceptions in subpart H—coupled with the
delayed compliance dates in subpart H—will
put public educational institutions in a better
position to establish contracts with thirdparty vendors with sufficient lead time to
enable the production of materials that are
accessible upon being created. One
commenter pointed out that, currently, much
of the digital content for courses for public
educational institutions is created by a small
number of digital publishers. Accordingly, if
the rulemaking incentivizes those publishers
to produce accessible content, that decision
may enable hundreds of public educational
institutions to obtain accessible content. The
Department also expects that as a result of
the rulemaking, there will be an increase in
demand for accessible content from thirdparty vendors, and therefore a likely increase
in the number of third-party vendors that are
equipped to provide accessible content.
Some commenters also expressed views
about whether public educational
institutions should be required to make posts
by third parties on password-protected
course websites accessible. The Department
wishes to clarify that, because content on
password-protected course websites will be
treated like any other content under subpart
H of this part, posts by third parties on
course websites may be covered by the
exception for content posted by a third party.
However, that exception only applies where
the third party is not posting due to
contractual, licensing, or other arrangements
with the public entity. Accordingly, if the
third party is acting on behalf of the public
entity, the third-party posted content
exception would not apply. The Department
believes that whether particular third-party
content qualifies for this exception will
involve a fact-specific inquiry.
Other Issues Pertaining to Public Educational
Entities and Public Libraries
In connection with the proposed
exceptions for password-protected course
content, the Department also asked if there
were any particular issues the Department
should consider regarding digital books,
textbooks, or libraries. The Department
received a variety of comments that
addressed these topics.
Some commenters raised issues pertaining
to intellectual property law. In particular,
commenters expressed different views about
whether public entities can alter or change
inaccessible electronic books created by
third-party vendors to make them accessible
for individuals with disabilities. Several
commenters requested that the Department
clarify how intellectual property law applies
to subpart H of this part. Subpart H is not
intended to interpret or clarify issues related
to intellectual property law. Accordingly, the
Department declines to make changes to
subpart H in response to commenters or
otherwise opine about public entities’
obligations with respect to intellectual
property law. However, as discussed with
respect to § 35.202, ‘‘Conforming Alternate
Versions,’’ there may be some instances in
which a public entity is permitted to make
a conforming alternate version of web
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content where it is not possible to make the
content directly accessible due to legal
limitations.
Some commenters also discussed the EPUB
file format. EPUB is a widely adopted format
for digital books.167 Commenters noted that
EPUBs are commonly used by public entities
and that they should be accessible.
Commenters also stated that the exceptions
for archived web content and preexisting
conventional electronic documents at
§ 35.201(a) and (b), should specifically
address EPUBs, or that EPUBs should fall
within the meaning of the PDF file format
with respect to the definition of
‘‘conventional electronic documents’’ at
§ 35.104. Commenters also suggested that
other requirements should apply to EPUBs,
including W3C’s EPUB Accessibility 1.1
standard 168 and Editor’s Draft on EPUB
Fixed Layout Accessibility.169
As discussed with respect to § 35.104, the
Department did not change the definition of
‘‘conventional electronic documents’’
because it believes the current exhaustive list
strikes the appropriate balance between
ensuring access for individuals with
disabilities and feasibility for public entities
so that they can comply with subpart H of
this part. The Department also declines to
adopt additional technical standards or
guidance specifically related to EPUBs. The
WCAG standards were designed to be
‘‘technology neutral.’’ 170 This means that
they are designed to be broadly applicable to
current and future web technologies.171 The
Department is concerned that adopting
multiple technical standards related to
various different types of web content could
lead to confusion. However, the Department
notes that subpart H allows for equivalent
facilitation in § 35.203, meaning that public
entities could still choose to apply additional
standards specifically related to EPUBs to the
extent that the additional standards provide
substantially equivalent or greater
accessibility and usability as compared to
WCAG 2.1 Level AA.
Some commenters also addressed public
educational entities’ use of digital textbooks
in general. Commenters stated that many
educational courses use digital materials,
including digital textbooks, created by thirdparty vendors. Consistent with many
commenters’ emphasis that all educational
course materials must be accessible under
subpart H of this part, commenters also
167 See W3C, EPUB 3.3: Recommendation, § 1.1
Overview (May 25, 2023), https://www.w3.org/TR/
epub-33/ [https://perma.cc/G2WZ-3M9S].
168 W3C, EPUB Accessibility 1.1:
Recommendation (May 25, 2023), https://
www.w3.org/TR/epub-a11y-11/ [https://perma.cc/
48A5-NC2B].
169 W3C, EPUB Fixed Layout Accessibility:
Editor’s Draft (Dec. 8, 2024), https://w3c.github.io/
epub-specs/epub33/fxl-a11y/ [https://perma.cc/
5SP7-VUHJ].
170 W3C, Introduction to Understanding WCAG
(June 20, 2023), https://www.w3.org/WAI/WCAG21/
Understanding/intro [https://perma.cc/XB3YQKVU].
171 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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stated that digital textbooks need to be
accessible under subpart H. Commenters
stated that third-party vendors that create
digital textbooks are in the best position to
make that content accessible, and it is costly
and burdensome for public entities to
remediate inaccessible digital textbooks.
While one commenter stated that there are
currently many examples of accessible digital
textbooks, other commenters stated that
many digital textbooks are not currently
accessible. A commenter also pointed out
that certain aspects of digital books and
textbooks cannot be made accessible where
the layout and properties of the content
cannot be changed without changing the
meaning of the content, and they
recommended that the Department create
exceptions for certain aspects of digital
books.
After weighing all the comments, the
Department believes the most prudent
approach is to treat digital textbooks,
including EPUBs, the same as all other
educational course materials. The
Department believes that treating digital
textbooks, including EPUBs, in any other
way would lead to the same problems
commenters identified with respect to the
proposed exceptions for password-protected
class or course content. For example, if the
Department created a similar exception for
digital textbooks, it could result in courses
being partially accessible and partially
inaccessible for certain time periods while
books are remediated to meet the needs of an
individual with a disability, which could be
confusing for both educational institutions
and students with disabilities. Furthermore,
as discussed elsewhere in this appendix, it
would be virtually impossible to set forth a
remediation time frame that would provide
public educational institutions sufficient
time to make digital textbooks accessible
without putting students with disabilities too
far behind their peers. Accordingly, the
Department did not make any changes to
subpart H of this part to specifically address
digital textbooks. The Department notes that
if there are circumstances where certain
aspects of digital textbooks cannot conform
to WCAG 2.1 Level AA without changing the
meaning of the content, public entities may
assess whether the fundamental alteration or
undue financial or administrative burdens
limitations apply, as discussed in § 35.204.
As noted elsewhere in this appendix, the
Department also expects that as a result of
the rulemaking, there will be an increase in
demand for accessible content from thirdparty vendors, and therefore a likely increase
in the number of third-party vendors that are
equipped to provide accessible digital
textbooks.
Some commenters also discussed
circumstances in which public entities seek
to modify particular web content to meet the
specific needs of individuals with
disabilities. One commenter suggested that
the Department should provide public
entities flexibility to focus on meeting the
individual needs of students, rather than
simply focusing on satisfying the
requirements of WCAG 2.1 Level AA. The
Department believes that the title II
regulation provides public entities sufficient
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flexibility to meet the needs of all individuals
with disabilities.
The Department also recognizes that IDEA
established the National Instructional
Materials Access Center (‘‘NIMAC’’) in 2004,
to assist State educational agencies and local
educational agencies with producing
accessible instructional materials to meet the
specific needs of certain eligible students
with disabilities.172 The NIMAC maintains a
catalog of source files for K–12 instructional
materials saved in the National Instructional
Materials Accessibility Standard (‘‘NIMAS’’)
format, and certain authorized users and
accessible media producers may download
the NIMAS files and produce accessible
instructional materials that are distributed to
eligible students with disabilities through
State systems and other organizations.173 The
Department believes subpart H of this part is
complementary to the NIMAC framework. In
particular, if a public entity provides or
makes available digital textbooks or other
course content that conforms to WCAG 2.1
Level AA, but an individual with a disability
still does not have equal access to the digital
textbooks or other course content, the public
entity may wish to assess on a case-by-case
basis whether materials derived from NIMAS
files can be used to best meet the needs of
the individual. Alternatively, a public entity
may wish to use materials derived from
NIMAS files as a conforming alternate
version where it is not possible to make the
digital textbook or other course content
directly accessible due to technical or legal
limitations, consistent with § 35.202.
Some commenters also raised issues
relating to public libraries. Commenters
stated that libraries have varying levels of
resources. Some commenters noted that
libraries need additional accessibility
training. One commenter requested that the
Department identify appropriate accessibility
resources and training, and another
commenter recommended that the
Department should consider allowing
variations in compliance time frames for
libraries and educational institutions based
on their individual needs and circumstances.
Commenters noted that digital content
available through libraries is often hosted,
controlled, or provided by third-party
vendors, and libraries purchase subscriptions
or licenses to use the material. Commenters
stated that it is costly and burdensome for
public libraries to remediate inaccessible
third-party vendor content. However, one
commenter highlighted a number of
examples in which libraries at public
educational institutions successfully
negotiated licensing agreements with thirdparty vendors that included requirements
related to accessibility. Several commenters
pointed out that some public libraries also
produce content themselves. For example,
some libraries participate in the open
educational resource movement, which
promotes open and free digital educational
172 Assistance to States for the Education of
Children With Disabilities, 85 FR 31374 (May 26,
2020).
173 Nat’l Instructional Materials Access Center,
About NIMAC, https://www.nimac.us/about-nimac/
[https://perma.cc/9PQ2-GLQM] (last visited Feb. 2,
2024).
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materials, and some libraries either operate
publishing programs or have a relationship
with university presses.
After weighing all the comments, the
Department believes the most appropriate
approach is to treat public libraries the same
as other public entities in subpart H of this
part. The Department is concerned that
treating public libraries in any other way
would lead to similar problems commenters
identified with respect to the proposed
exceptions for password-protected class or
course content, especially because some
public libraries are connected with public
educational entities. With respect to
comments about the resources available to
libraries and the time frame for libraries to
comply with subpart H, the Department also
emphasizes that it is sensitive to the need to
set a workable standard for all different types
of public entities. The Department recognizes
that public libraries can vary as much as any
other group of public entities covered by
subpart H, from small town libraries to large
research libraries that are part of public
educational institutions. Under
§ 35.200(b)(2), as under the NPRM, some
public libraries will qualify as small public
entities and will have an extra year to
comply. Subpart H also includes exceptions
that are intended to help ensure feasibility
for public entities so that they can comply
with subpart H and, as discussed in § 35.204,
public entities are not required to undertake
actions that would represent a fundamental
alteration in the nature of a service, program,
or activity or impose undue financial and
administrative burdens. The Department also
notes there that there are free and low-cost
training materials available that would help
public entities to produce content compliant
with WCAG 2.1 Level AA. Accordingly, the
Department has not made any changes to
subpart H to specifically address public
libraries.
Some commenters also noted that public
libraries may have collections of materials
that are archival in nature, and discussed
whether such materials should be covered by
an exception. Subpart H of this part contains
an exception for archived web content that
(1) was created before the date the public
entity is required to comply with subpart H,
reproduces paper documents created before
the date the public entity is required to
comply with subpart H, or reproduces the
contents of other physical media created
before the date the public entity is required
to comply with subpart H; (2) is retained
exclusively for reference, research, or
recordkeeping; (3) is not altered or updated
after the date of archiving; and (4) is
organized and stored in a dedicated area or
areas clearly identified as being archived. In
addition, subpart H contains an exception for
preexisting conventional electronic
documents, unless such documents are
currently used to apply for, gain access to, or
participate in a public entity’s services,
programs, or activities. The Department
addressed these exceptions in more detail in
the section-by-section analysis of § 35.104,
containing the definitions of ‘‘archived web
content’’ and ‘‘conventional electronic
documents’’; § 35.201(a), the exception for
archived web content; and § 35.201(b), the
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exception for preexisting conventional
electronic documents.
Individualized, Password-Protected or
Otherwise Secured Conventional Electronic
Documents
In § 35.201(d), the Department has set forth
an exception to the requirements of § 35.200
for conventional electronic documents that
are: (1) about a specific individual, their
property, or their account; and (2) passwordprotected or otherwise secured.
Many public entities use web content and
mobile apps to provide access to
conventional electronic documents for their
customers and other members of the public.
For example, some public utility companies
provide a website where customers can log
in and view a PDF version of their latest bill.
Similarly, many public hospitals offer a
virtual platform where healthcare providers
can send conventional electronic document
versions of test results and scanned medical
records to their patients. Unlike many other
types of content covered by subpart H of this
part, these documents are relevant only to an
individual member of the public, and in
many instances, the individuals who are
entitled to view a particular individualized
conventional electronic document will not
need an accessible version.
While public entities, of course, have
existing title II obligations to provide
accessible versions of individualized,
password-protected or otherwise secured
conventional electronic documents in a
timely manner when those documents
pertain to individuals with disabilities, or
otherwise provide the information contained
in the documents to the relevant
individual,174 the Department recognizes that
it may be too burdensome for some public
entities to make all such documents conform
to WCAG 2.1 Level AA, regardless of whether
the individual to whom the document
pertains needs such access. The goal of this
exception is to give public entities flexibility
to provide such documents, or the
information contained within such
documents, to the individuals with
disabilities to whom they pertain in the
manner that the entities determine will be
most efficient. Many public entities may
retain and produce a large number of
individualized, password-protected or
otherwise secured conventional electronic
documents, and may find that remediating
these documents—particularly ones that have
been scanned from paper copies—involves a
more time- and resource-intensive process
than remediating other types of web content.
In that scenario, the Department believes that
it would be most impactful for public entities
to focus their resources on making versions
that are accessible to those individuals who
need them. However, some public entities
may conclude that it is most efficient or
effective to make all individualized,
password-protected or otherwise secured
conventional electronic documents
accessible by using, for example, an
accessible template to generate such
documents, and subpart H of this part
preserves flexibility for public entities that
174 See
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wish to take that approach. This approach is
consistent with the broader title II regulatory
framework. For example, public utility
companies are not required to affirmatively
mail accessible bills to all customers. Instead,
the companies need only provide accessible
bills to those customers who need them
because of a disability.
This exception is limited to ‘‘conventional
electronic documents’’ as defined in § 35.104.
This exception would, therefore, not apply in
a case where a public entity makes
individualized information available in
formats other than a conventional electronic
document. For example, if a public medical
provider makes individualized medical
records available on a password-protected
web platform as HTML content (rather than
a PDF), that content would not be subject to
this exception. Those HTML records,
therefore, would need to be made accessible
in accordance with § 35.200. On the other
hand, if a public entity makes individualized
records available on a password-protected
web platform as PDF documents, those
documents would fall under this exception.
In addition, although the exception would
apply to individualized, password-protected
or otherwise secured conventional electronic
documents, the exception would not apply to
the platform on which the public entity
makes those documents available. The public
entity would need to ensure that that
platform complies with § 35.200. Further,
web content and content in mobile apps that
does not take the form of individualized,
password-protected or otherwise secured
conventional electronic documents but
instead notifies users about the existence of
such documents must still conform to WCAG
2.1 Level AA unless it is covered by another
exception. For example, a public hospital’s
health records portal may include a list of
links to download individualized, passwordprotected PDF medical records. Under
WCAG 2.1 Success Criterion 2.4.4, a public
entity would generally have to provide
sufficient information in the text of the link
alone, or in the text of the link together with
the link’s programmatically determined link
context, so that a user could understand the
purpose of each link and determine whether
they want to access a given document.175
This exception also only applies when the
content is individualized for a specific
person or their property or account.
Examples of individualized documents
include medical records or notes about a
specific patient, receipts for purchases (like
a parent’s receipt for signing a child up for
a recreational sports league), utility bills
concerning a specific residence, or
Department of Motor Vehicles records for a
specific person or vehicle. Content that is
broadly applicable or otherwise for the
general public (i.e., not individualized) is not
subject to this exception. For instance, a PDF
notice that explains an upcoming rate
increase for all utility customers and does not
address a specific customer’s particular
circumstances would not be subject to this
175 See W3C, Understanding SC 2.4.4.: Link
Purpose (In Context) (June 20, 2023), https://
www.w3.org/WAI/WCAG21/Understanding/linkpurpose-in-context.html [https://perma.cc/RE3TJ9PN].
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exception. Such a general notice would not
be subject to this exception even if it were
attached to or sent with an individualized
letter, like a bill, that does address a specific
customer’s circumstances.
This exception applies only to passwordprotected or otherwise secured content.
Content may be otherwise secured if it
requires a member of the public to use some
process of authentication or login to access
the content. Unless subject to another
exception, conventional electronic
documents that are on a public entity’s
general, public web platform would not be
covered by the exception.
The Department recognizes that there may
be some overlap between the content covered
by this exception and the exception for
certain preexisting conventional electronic
documents, § 35.201(b). The Department
notes that if web content is covered by the
exception for individualized, passwordprotected or otherwise secured conventional
electronic documents, it does not need to
conform to WCAG 2.1 Level AA to comply
with subpart H of this part, even if the
content fails to qualify for another exception,
such as the preexisting conventional
electronic document exception. For example,
a public entity might retain on its website an
individualized, password-protected unpaid
water bill in a PDF format that was posted
before the date the entity was required to
comply with subpart H. Because the PDF
would fall within the exception for
individualized, password-protected or
otherwise secured conventional electronic
documents, the documents would not need
to conform to WCAG 2.1 Level AA,
regardless of how the preexisting
conventional electronic documents exception
might otherwise have applied.
As noted elsewhere in this appendix, while
the exception is meant to alleviate the
potential burden on public entities of making
all individualized, password-protected or
otherwise secured conventional electronic
documents generally accessible, individuals
with disabilities must still be able to access
information from documents that pertain to
them.176 The Department emphasizes that
even if certain content does not have to
conform to the technical standard, public
entities still need to ensure that their
services, programs, and activities offered
using web content and mobile apps are
accessible to individuals with disabilities on
a case-by-case basis in accordance with their
existing obligations under title II of the ADA.
These obligations include making reasonable
modifications to avoid discrimination on the
basis of disability, ensuring that
communications with people with
disabilities are as effective as
communications with people without
disabilities, and providing people with
disabilities an equal opportunity to
participate in or benefit from the entity’s
services, programs, or activities.177
The Department received comments
expressing both support for and opposition to
this exception. A supporter of the exception
observed that, because many individualized,
176 See
177 See
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password-protected or otherwise secured
conventional electronic documents do not
pertain to a person with a disability and
would never be accessed by a person with a
disability, it is unnecessary to require public
entities to devote resources to making all of
those documents accessible at the outset.
Some commenters suggested that it could be
burdensome for public entities to make all of
these documents accessible, regardless of
whether they pertain to a person with a
disability. Some commenters noted that even
if some public entities might find it more
efficient to make all individualized,
password-protected or otherwise secured
conventional electronic documents
accessible from the outset, this exception is
valuable because it gives entities flexibility to
select the most efficient option to meet the
needs of individuals with disabilities.
The Department also received many
comments opposing this exception.
Commenters pointed out that it is often
critical for individuals, including individuals
with disabilities, to have timely access to
individualized, password-protected or
otherwise secured conventional electronic
documents, because those documents may
contain sensitive, private, and urgently
needed information, such as medical test
results, educational transcripts, or tax
documents. Commenters emphasized the
negative consequences that could result from
an individual being unable to access these
documents in a timely fashion, from missed
bill payments to delayed or missed medical
treatments. Commenters expressed concern
that this exception could exacerbate existing
inequities in access to government services
for people with disabilities. Commenters
argued that it is ineffective and inappropriate
to continue to put the burden on individuals
with disabilities to request accessible
versions of individualized documents,
particularly given that many individuals with
disabilities may have repeated interactions
with different public entities that generate a
large number of individualized, passwordprotected or otherwise secured conventional
electronic documents. One commenter
contended that the inclusion of this
exception is in tension with other statutes
and Federal initiatives that are designed to
make it easier for individuals to access
electronic health information and other
digital resources. Commenters contended
that public entities often do not have robust,
effective procedures under which people can
make such requests and obtain accessible
versions quickly without incurring invasions
of privacy. Commenters argued that it can be
cheaper and easier to make individualized
conventional electronic documents
accessible at the time they are created,
instead of on a case-by-case basis,
particularly given that many such documents
are generated from templates, which can be
made accessible relatively easily.
Commenters argued that many public entities
already make these sorts of documents
accessible, pursuant to their longstanding
ADA obligations, so introducing this
exception might lead some entities to regress
toward less overall accessibility. Some
commenters suggested that if the exception is
retained in subpart H of this part, the
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Department should set forth specific
procedures for public entities to follow when
they are on notice of the need to make
individualized documents accessible for a
particular individual with a disability.
After reviewing the comments, the
Department has decided to retain this
exception in subpart H of this part.178 The
Department continues to believe that public
entities often provide or make available a
large volume of individualized, passwordprotected or otherwise secured conventional
electronic documents, many of which do not
pertain to individuals with disabilities, and
it may be difficult to make all such
documents accessible. Therefore, the
Department believes it is sensible to permit
entities to focus their resources on ensuring
accessibility for the specific individuals who
need accessible versions of those documents.
If, as many commenters suggested, it is in
fact more efficient and less expensive for
some public entities to make all such
documents accessible by using a template,
there is nothing in subpart H that prevents
public entities from taking that approach.
The Department understands the concerns
raised by commenters about the potential
burdens that individuals with disabilities
may face if individualized passwordprotected or otherwise secured documents
are not all made accessible at the time they
are created and about the potential negative
consequences for individuals with
disabilities who do not have timely access to
the documents that pertain to them. The
Department reiterates that, even when
documents are covered by this exception, the
existing title II obligations require public
entities to furnish appropriate auxiliary aids
and services where necessary to ensure an
individual with a disability has, for example,
an equal opportunity to enjoy the benefits of
a service.179 Such auxiliary aids and services
could include, for example, providing PDFs
that are accessible. In order for such an
auxiliary aid or service to ensure effective
communication, it must be provided ‘‘in a
timely manner, and in such a way as to
protect the privacy and independence of the
individual with a disability.’’ 180 Whether a
particular solution provides effective
communication depends on circumstances in
the interaction, including the nature, length,
complexity, and context of the
communication.181 For example, the
presence of an emergency situation or a
situation in which information is otherwise
urgently needed would impact what it would
mean for a public entity to ensure it is
meeting its effective communication
obligations. Public entities can help to
facilitate effective communication by
178 The Department made a non-substantive
change to the header of the exception to match the
text of the exception.
179 See § 35.160(b)(1). For more information about
public entities’ existing obligation to ensure that
communications with individuals with disabilities
are as effective as communications with others, see
U.S. Dep’t of Just., ADA Requirements: Effective
Communication, ada.gov (Feb 28, 2020), https://
www.ada.gov/resources/effective-communication/
[https://perma.cc/CLT7-5PNQ].
180 See § 35.160(b)(2).
181 Id.
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providing individuals with disabilities with
notice about how to request accessible
versions of their individualized documents.
The Department also notes that where, for
example, a public entity is on notice that an
individual with a disability needs accessible
versions of an individualized, passwordprotected PDF water bill, that public entity
is generally required to continue to provide
information from that water bill in an
accessible format in the future, and the
public entity generally may not require the
individual with a disability to make repeated
requests for accessibility. Moreover, while
individualized, password-protected or
otherwise secured conventional electronic
documents are subject to this exception, any
public-facing, web- or mobile app-based
system or platform that a public entity uses
to provide or make available those
documents, or to allow the public to make
accessibility requests, must itself be
accessible under § 35.200 if it is not covered
by another exception.
The Department also reiterates that a
public entity might also need to make
reasonable modifications to ensure that a
person with a disability has equal access to
its services, programs, or activities.182 For
example, if a public medical provider has a
policy under which administrative support
staff are in charge of uploading PDF versions
of X-ray images into patients’ individualized
accounts after medical appointments, but the
provider knows that a particular patient is
blind, the provider may need to modify its
policy to ensure that a staffer with the
necessary expertise provides an accessible
version of the information the patient needs
from the X-ray.
Some commenters suggested that the
Department should require public entities to
adopt specific procedures when they are on
notice of an individual’s need for accessible
individualized, password-protected or
otherwise secured conventional electronic
documents. For example, some commenters
suggested that public entities should be
required to establish a specific process
through which individuals with disabilities
can ‘‘opt in’’ to receiving accessible
documents; to display instructions for how to
request accessible versions of documents in
specific, prominent places on their websites;
to make documents accessible within a
specified time frame after being on notice of
the need for accessibility (suggested time
frames ranged from 5 to 30 business days);
or to remediate all documents that are based
on a particular template upon receiving a
request for remediation of an individualized
document based on that template. Although
the Department appreciates the need to
ensure that individuals with disabilities can
obtain easily accessible versions of
individualized, password-protected or
otherwise secured conventional electronic
documents, the Department believes it is
appropriate to provide flexibility for a public
entity in how it reaches that particular goal
on a case-by-case basis, so long as the entity’s
process satisfies the requirements of title
II.183 Moreover, because the content and
182 See
§ 35.130(b)(7).
§§ 35.130(b)(1)(ii) and (b)(7) and
35.160(b)(2).
183 See
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quantity of individualized, passwordprotected documents or otherwise secured
may vary widely, from a one-page utility bill
to thousands of pages of medical records, the
Department does not believe it is workable to
prescribe a set number of days under which
a public entity must make these documents
accessible. The wide range of possible time
frames that commenters suggested, coupled
with the comments the Department received
on the remediation time frames that were
associated with the previously proposed
course content exceptions, helps to illustrate
the challenges associated with selecting a
specific number of days for public entities to
remediate content.
Some commenters suggested other
revisions to the exception. For example,
some commenters suggested that the
Department could limit the exception to
existing individualized, password-protected
or otherwise secured conventional electronic
documents, while requiring newly created
documents to be automatically accessible.
The Department does not believe it is
advisable to adopt this revision. A central
rationale of this exception—the fact that
many individuals to whom individualized
documents pertain do not need those
documents in an accessible format—remains
regardless of whether the documents at issue
are existing or newly created.
One commenter suggested the Department
could create an expiration date for the
exception. The Department does not believe
this would be workable, because the
challenges that public entities might face in
making all individualized, passwordprotected or otherwise secured conventional
electronic documents accessible across the
board would likely persist even after any
expiration date. One commenter suggested
that the exception should not apply to large
public entities, such as States. The
Department believes that the rationales
underlying this exception would apply to
both large and small public entities. The
Department also believes that the
inconsistent application of this exception
could create unpredictability for individuals
with disabilities. Other commenters
suggested additional revisions, such as
limiting the exception to documents that are
not based on templates; requiring public
entities to remove inaccessible documents
from systems of records once accessible
versions of those documents have been
created; and requiring public entities to use
HTML pages, which may be easier to make
accessible than conventional electronic
documents, to deliver individualized
information in the future. The Department
believes it is more appropriate to give public
entities flexibility in how they provide or
make available individualized, passwordprotected or otherwise secured documents to
the public, so long as those entities ensure
that individuals with disabilities have timely
access to the information contained in those
documents in an accessible format that
protects the privacy and independence of the
individual with a disability.
Some commenters asked the Department
for additional clarification about how the
exception would operate in practice. One
commenter asked for clarification about how
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this exception would apply to public
hospitals and healthcare clinics, and whether
the exception would apply when a patient
uses a patient portal to schedule an
appointment with their provider. The
Department wishes to clarify that this
exception is not intended to apply to all
content or functionality that a public entity
offers that is password-protected. Instead,
this exception is intended to narrowly apply
to individualized, password-protected or
otherwise secured conventional electronic
documents, which are limited to the
following electronic file formats: PDFs, word
processor file formats, presentation file
formats, and spreadsheet file formats.
Content that is provided in any other format
is not subject to this exception. In addition,
while individualized, password-protected or
otherwise secured conventional electronic
documents would be subject to the
exception, the platform on which those
documents are provided would not be subject
to the exception and would need to conform
to WCAG 2.1 Level AA. Accordingly, in the
scenario raised by the commenter, the
exception would not apply unless the public
hospital or healthcare clinic used an
individualized, password-protected or
otherwise secured document in one of the
file types listed in this paragraph for
scheduling appointments.
The Department also received some
comments that suggested that the Department
take actions outside the scope of subpart H
of this part to make it easier for certain
people with disabilities to access platforms
that provide individualized, passwordprotected or otherwise secured documents.
For example, the Department received a
comment asking the Department to require
public entities to offer ‘‘lower tech’’
platforms that are generally simpler to
navigate. While the Department recognizes
that these are important issues, they are
outside the scope of subpart H, and they are
therefore not addressed in detail in subpart
H.
Preexisting Social Media Posts
Subpart H of this part includes an
exception in § 35.201(e) for preexisting social
media posts, which provides that the
requirements of § 35.200 will not apply to a
public entity’s social media posts that were
posted before the date the public entity is
required to comply with subpart H. This
means that public entities will need to ensure
that their social media posts going forward
are compliant with the requirements in
subpart H beginning on the compliance date
outlined in § 35.200(b), but not before that
date. The Department includes guidance on
public entities’ use of social media platforms
going forward in the section entitled ‘‘Public
Entities’ Use of Social Media Platforms’’ in
the section-by-section analysis of § 35.200.
The Department is including this exception
in subpart H of this part because making
preexisting social media posts accessible may
be impossible or result in a significant
burden. Commenters told the Department
that many public entities have posted on
social media platforms for several years,
often numbering thousands of posts, which
may not all be compliant with WCAG 2.1
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Level AA. The benefits of making all
preexisting social media posts accessible will
likely be limited as these posts are generally
intended to provide then-current updates on
platforms that are frequently refreshed with
new information. The Department believes
public entities’ limited resources are better
spent ensuring that current web content and
content in mobile apps are accessible, rather
than reviewing all preexisting social media
posts for compliance or possibly deleting
public entities’ previous posts if remediation
is impossible.
In the NPRM, the Department did not
propose any regulatory text specific to the
web content and content in mobile apps that
public entities make available via social
media platforms. However, the Department
asked for the public’s feedback on adding an
exception from coverage under subpart H of
this part for a public entity’s social media
posts if they were posted before the effective
date of subpart H.184 After reviewing public
comment on this proposed exception, the
Department has decided to include an
exception in subpart H, which will apply to
preexisting social media posts posted before
the compliance date of subpart H.
The Department emphasizes that even if
preexisting social media posts do not have to
conform to the technical standard, public
entities still need to ensure that their
services, programs, and activities offered
using web content and mobile apps are
accessible to people with disabilities on a
case-by-case basis in accordance with their
existing obligations under title II of the ADA.
These obligations include making reasonable
modifications to avoid discrimination on the
basis of disability, ensuring that
communications with people with
disabilities are as effective as
communications with people without
disabilities, and providing people with
disabilities an equal opportunity to
participate in or benefit from the entity’s
services, programs, and activities.185
Most commenters supported an exception
for preexisting social media posts, including
commenters representing public entities and
disability advocates. Commenters shared that
making preexisting social media posts
accessible would require a massive allocation
of resources, and that in many cases these
posts would be difficult or impossible to
remediate. Commenters shared that in
practice, public entities may need to delete
preexisting social media posts to comply
with subpart H of this part in the absence of
this exception, which could result in a loss
of historical information about public
entities’ activities.
A few commenters shared alternative
approaches to this exception. One
commenter suggested that highlighted or socalled ‘‘pinned’’ posts (e.g., social media
posts saved at the top of a page) be required
to be made accessible regardless of the
posting date. Other commenters suggested
that the exception should be limited so as not
to cover emergency information or
information pertinent to accessing core
functions, expressing concern that these
184 88
FR 51962–51963.
35.130(b)(1)(ii) and (b)(7) and 35.160.
185 Sections
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postings would continue to be inaccessible
between publication of the final rule and the
date that public entities are required to be in
compliance with subpart H of this part.
The Department agrees with the majority of
commenters who supported the exception as
described in the NPRM, for the reasons
shared previously. The Department
understands some commenters’ concerns
with respect to pinned posts as well as
concerns with inaccessible postings made
after publication of the final rule but before
the compliance date. However, the
Department believes that the approach
provided in subpart H of this part
appropriately balances a variety of competing
concerns. In particular, the Department is
concerned that it would be difficult to define
pinned posts given the varied and evolving
ways in which different social media
platforms allow users to highlight and
organize content, such that it could result in
confusion. Further, the Department believes
that the risk that preexisting pinned posts
will stay pinned indefinitely is low, because
public entities will likely still want to
regularly update their pinned content. Also,
requiring these pinned posts to be made
accessible risks some of the remediation
concerns raised earlier, as public entities may
need to delete pinned posts where
remediation is infeasible. The Department
also has concerns with delineating what
content should be considered ‘‘core’’ or
‘‘emergency’’ content.
For these reasons, the Department believes
the appropriate approach is to set forth, as it
does in § 35.201(e), an exception from the
requirements of § 35.200 for all social media
posts that were posted prior to the
compliance date for subpart H of this part.
The Department emphasizes, however, that
after the compliance date, public entities
must ensure all of their social media posts
moving forward comply with subpart H.
In the NPRM, the Department asked for the
public’s feedback on whether public entities’
preexisting videos posted to social media
platforms should be covered by an exception
due to these same concerns or whether these
platforms should otherwise be treated
differently. After reviewing public comments
with respect to social media, the Department
does not believe it is prudent to single out
any individual social media platform or
subset of content on those platforms for
unique treatment under subpart H of this
part, as that could lead to confusion and be
difficult to implement, especially as social
media platforms continually evolve. The
Department thus maintains that social media
posts must be made accessible under § 35.200
if they are posted after the compliance date
of subpart H. The Department recognizes that
due to the continually evolving nature of
social media platforms, there may be
questions about which content is covered by
the exception to subpart H. While the
Department is choosing not to single out
platforms or subsets of platforms in subpart
H for unique treatment, the Department
encourages public entities to err on the side
of ensuring accessibility where there are
doubts about coverage, to maximize access
for people with disabilities.
Commenters also suggested other ways to
address social media, such as providing that
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public entities must create a timeline to
incorporate accessibility features into their
social media or providing that public entities
can use separate accessible pages with all of
their social media posts. The Department
believes the balance struck with this
exception in subpart H of this part is
appropriate and gives public entities
sufficient time to prepare to make all of their
new social media posts accessible in
accordance with subpart H after the
compliance date, consistent with the other
content covered by subpart H. One
commenter also requested clarification on
when social media posts with links to thirdparty content would be covered by subpart H.
The Department notes that social media posts
posted after the compliance date are treated
consistent with all other web content and
content in mobile apps, and the relevant
exceptions may apply depending on the
content at issue.
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Section 35.202—Conforming Alternate
Versions
Section 35.202 sets forth the approach to
‘‘conforming alternate versions.’’ Under
WCAG, a ‘‘conforming alternate version’’ is a
separate web page that, among other things,
is accessible, up to date, contains the same
information and functionality as the
inaccessible web page, and can be reached
via a conforming page or an accessibilitysupported mechanism.186 Conforming
alternate versions are allowable under
WCAG. For reasons explained in the
following paragraphs, the Department
believes it is important to put guardrails on
when public entities may use conforming
alternate versions under subpart H of this
part. Section 35.202, therefore, specifies that
the use of conforming alternate versions is
permitted only in limited, defined
circumstances, which represents a slight
departure from WCAG 2.1. Section 35.202(a)
states that a public entity may use
conforming alternate versions of web content
to comply with § 35.200 only where it is not
possible to make web content directly
accessible due to technical or legal
limitations.
Generally, to conform to WCAG 2.1, a web
page must be directly accessible in that it
satisfies the success criteria for one of the
defined levels of conformance—in the case of
subpart H of this part, Level AA.187 However,
as noted in the preceding paragraph, WCAG
2.1 also allows for the creation of a
‘‘conforming alternate version.’’ The purpose
of a ‘‘conforming alternate version’’ is to
provide individuals with relevant disabilities
access to the information and functionality
provided to individuals without relevant
disabilities, albeit via a separate vehicle. The
186 See W3C, Web Content Accessibility
Guidelines (WCAG) 2.1: Recommendation,
Conforming Alternate Version (June 5, 2018),
https://www.w3.org/TR/2018/REC-WCAG2120180605/#dfn-conforming-alternate-version
[https://perma.cc/GWT6-AMAN]. WCAG 2.1
provides three options for how a conforming
alternate version can be reached—the Department
does not modify those options with respect to
conforming alternative versions under subpart H of
this part.
187 See id.
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Department believes that having direct access
to accessible web content provides the best
user experience for many individuals with
disabilities, and it may be difficult to reliably
maintain conforming alternate versions,
which must be kept up to date. W3C explains
that providing a conforming alternate version
is intended to be a ‘‘fallback option for
conformance to WCAG and the preferred
method of conformance is to make all content
directly accessible.’’ 188 However, WCAG 2.1
does not explicitly limit the circumstances
under which an entity may choose to create
a conforming alternate version of a web page
instead of making the web page directly
accessible.
The Department is concerned that WCAG
2.1 can be interpreted to permit the
development of two separate versions of a
public entity’s web content—one for
individuals with relevant disabilities and
another for individuals without relevant
disabilities—even when doing so is
unnecessary and when users with disabilities
would have a better experience using the
main web content that is accessible. Such an
approach would result in segregated access
for individuals with disabilities and be
inconsistent with how the ADA’s core
principles of inclusion and integration have
historically been interpreted.189 The
Department is also concerned that the
frequent or unbounded creation of separate
web content for individuals with disabilities
may, in practice, result in unequal access to
information and functionality. For example,
and as discussed later in this section, the
Department is concerned that an inaccessible
conforming alternate version may provide
information that is outdated or conflicting
due to the maintenance burden of keeping
the information updated and consistent with
the main web content. As another example,
use of a conforming alternate version may
provide a fragmented, separate, or less
interactive experience for people with
disabilities because public entities may
assume that interactive features are not
financially worthwhile or otherwise
necessary to incorporate in conforming
alternate versions. Ultimately, as discussed
later in this section, the Department believes
there are particular risks associated with
permitting the creation of conforming
alternate versions where not necessitated by
the presence of technical or legal limitations.
Due to the concerns about user experience,
segregation of users with disabilities, unequal
access to information, and maintenance
burdens mentioned in the preceding
paragraph, the Department is adopting a
slightly different approach to conforming
188 See W3C, Understanding Conformance,
https://www.w3.org/WAI/WCAG21/Understanding/
conformance [https://perma.cc/QSG6-QCBL] (June
20, 2023).
189 See § 35.130(b)(1)(iv) (stating that public
entities generally may not provide different or
separate aids, benefits, or services to individuals
with disabilities than is provided to others unless
such action is necessary); § 35.130(d) (requiring that
public entities administer services, programs, and
activities in the most integrated setting
appropriate); cf. 42 U.S.C. 12101(a)(2) (finding that
society has tended to isolate and segregate
individuals with disabilities).
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alternate versions than that provided under
WCAG 2.1. Instead of permitting entities to
adopt conforming alternate versions
whenever they believe it is appropriate,
§ 35.202(a) states that a public entity may use
conforming alternate versions of web content
to comply with § 35.200 only where it is not
possible to make web content directly
accessible due to technical limitations (e.g.,
technology is not yet capable of being made
accessible) or legal limitations (e.g., web
content that cannot be changed due to legal
reasons). The Department believes
conforming alternate versions should be used
rarely—when it is truly not possible to make
the content accessible for reasons beyond the
public entity’s control. However, § 35.202
does not prohibit public entities from
providing alternate versions of web pages in
addition to their WCAG 2.1 Level AA
compliant main web page to possibly provide
users with certain types of disabilities a
better experience.
The Department slightly revised the text
that was proposed in the NPRM for this
provision.190 To ensure consistency with
other provisions of subpart H of this part, the
previously proposed text for § 35.202 was
revised to refer to ‘‘web content’’ instead of
‘‘websites and web content.’’ W3C’s
discussion of conforming alternate versions
generally refers to ‘‘web pages’’ and
‘‘content.’’ 191 Other provisions of subpart H
also refer to ‘‘web content.’’ Introducing the
concept of ‘‘websites’’ in this section when
the term is not used elsewhere in subpart H
could cause unnecessary confusion, so the
Department revised this language for
consistency. This change is non-substantive,
as ‘‘web content’’ encompasses ‘‘websites.’’
In the NPRM, the Department requested
comments on its approach to conforming
alternate versions. In response, the
Department received comments from a
variety of commenters. Several commenters
supported the Department’s proposed
approach of permitting the use of conforming
alternative versions only when there are
technical or legal limitations. Commenters
believed these limitations would prevent
public entities from using conforming
alternate versions frequently and for reasons
that do not seem appropriate, such as
creating a conforming alternate version for a
web page that is less accessible because of
the public entity’s aesthetic preferences.
Some commenters suggested that the
Department should permit conforming
alternate versions under a broader range of
circumstances. For example, some
commenters indicated that a conforming
alternate version could provide an equal or
superior version of web content for people
with disabilities. Other commenters noted
that some private companies can provide
manual alternate versions that look the same
as the original web page but that have
invisible coding and are accessible. One
commenter stated that the transition from a
190 88
FR 52020.
W3C, Web Content Accessibility
Guidelines (WCAG) 2.1: Recommendation,
Conforming Alternate Version (June 5, 2018),
https://www.w3.org/TR/2018/REC-WCAG2120180605/#dfn-conforming-alternate-version
[https://perma.cc/GWT6-AMAN].
191 See
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public entity’s original website to an
accessible version can be made seamless.
Another commenter noted that WCAG 2.1
permits entities to adopt conforming
alternate versions under broader
circumstances and argued that the
Department should adopt this approach
rather than permitting conforming alternate
versions only where there are technical or
legal limitations. One commenter argued that
it could be challenging for public entities that
already offer conforming alternate versions
more broadly to adjust their approach to
comply with subpart H of this part. Some
commenters gave examples of scenarios in
which they found it helpful or necessary to
provide conforming alternate versions.
A few commenters expressed serious
concerns about the use of conforming
alternate versions. These commenters stated
that conforming alternate versions often
result in two separate and unequal websites.
Commenters indicated that some entities’
conforming alternate versions neither
conform to WCAG standards nor contain the
same functionality and content and therefore
provide fragmented, separate experiences
that are less useful for people with
disabilities. Other commenters shared that
these alternate versions are designed in a way
that assumes users are people who are blind
and thus do not want visual presentation,
when other people with disabilities rely on
visual presentations to access the web
content. Further, one group shared that many
people with disabilities may be skeptical of
conforming alternative versions because
historically they have not been updated, have
been unequal in quality, or have separated
users by disability. Another commenter
argued that unlimited use of conforming
alternate versions could lead to errors and
conflicting information because there are two
versions of the same content. One commenter
suggested prohibiting conforming alternate
versions when interaction is a part of the
online user experience. Another commenter
suggested permitting conforming alternate
versions only when a legal limitation makes
it impossible to make web content directly
accessible, but not when a technical
limitation makes it impossible to do so.
Having reviewed public comments and
considered this issue carefully, the
Department believes subpart H of this part
strikes the right balance to permit conforming
alternate versions, but only where it is not
possible to make web content directly
accessible due to technical or legal
limitations. The Department believes that
this approach ensures that generally, people
with disabilities will have direct access to the
same web content that is accessed by people
without disabilities, but it also preserves
flexibility for public entities in situations
where, due to a technical or legal limitation,
it is impossible to make web content directly
accessible. The Department also believes that
this approach will help avoid the concerns
noted in the preceding paragraphs with
respect to segregation of people with
disabilities by defining only specific
scenarios when the use of conforming
alternate versions is appropriate.
Some commenters emphasized the
importance of ensuring that under the
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limited circumstances in which conforming
alternate versions are permissible, those
versions provide a truly equal experience.
Commenters also expressed concern that it
might be hard for people with disabilities to
find links to conforming alternate versions.
The Department notes that under WCAG 2.1,
a conforming alternate version is defined, in
part, as a version that ‘‘conforms at the
designated level’’; ‘‘provides all of the same
information and functionality in the same
human language’’; and ‘‘is as up to date as
the non-conforming content.’’ 192
Accordingly, even where it is permissible for
a public entity to offer a conforming alternate
version under subpart H of this part, the
public entity must still ensure that the
conforming alternate version provides equal
information and functionality and is up to
date. WCAG 2.1 also requires that ‘‘the
conforming version can be reached from the
non-conforming page via an accessibilitysupported mechanism,’’ or ‘‘the nonconforming version can only be reached from
the conforming version,’’ or ‘‘the nonconforming version can only be reached from
a conforming page that also provides a
mechanism to reach the conforming
version.’’ 193 The Department believes these
requirements will help to ensure that where
a conforming alternate version is permissible,
people with disabilities will be able to locate
that page.
Some commenters recommended that the
Department provide additional guidance and
examples of when conforming alternate
versions would be permissible, or asked the
Department to clarify whether conforming
alternate versions would be permissible
under particular circumstances. The
determination of when conforming alternate
versions are needed or permitted varies
depending on the facts. For example, a
conforming alternate version would not be
permissible just because a town’s web
developer lacked the knowledge or training
needed to make content accessible; that
would not be a technical limitation within
the meaning of § 35.202. By contrast, the
town could use a conforming alternate
version if its web content included a new
type of technology that it is not yet possible
to make accessible, such as a specific kind of
immersive virtual reality environment.
Similarly, a town would not be permitted to
claim a legal limitation because its general
counsel failed to approve contracts for a web
developer with accessibility experience.
Instead, a legal limitation would apply when
the inaccessible content itself could not be
modified for legal reasons specific to that
content. The Department believes this
approach is appropriate because it ensures
that, whenever possible, people with
disabilities have access to the same web
content that is available to people without
disabilities.
One commenter stated that school districts
and public postsecondary institutions
currently provide accessible alternative
content to students with disabilities that is
equivalent to the content provided to
students without disabilities and that is
192 See
id.
193 Id.
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responsive to the individual student’s needs.
The commenter argued that public
educational institutions should continue to
be able to provide these alternative resources
to students with disabilities. The Department
reiterates that although public educational
institutions, like all other public entities, will
only be able to provide conforming alternate
versions in lieu of directly accessible
versions of web content under the
circumstances specified in § 35.202, nothing
prevents a public educational institution
from providing a conforming alternate
version in addition to the accessible main
version of its web content.
Other commenters requested that the
Department impose deadlines or time
restrictions on how long a public entity can
use a conforming alternate version. However,
the Department believes that doing so would
conflict with the rationale for permitting
conforming alternate versions. Where the
technical limitations and legal limitations are
truly outside the public entity’s control, the
Department believes it would be
unreasonable to require the public entity to
surmount those limitations after a certain
period of time, even if they are still in place.
However, once a technical or legal limitation
no longer exists, a public entity must ensure
their web content is directly accessible in
accordance with subpart H of this part.
A few commenters also sought clarification
on, or broader language to account for, the
interaction between the allowance of
conforming alternate versions under § 35.202
and the general limitations provided in
§ 35.204. These two provisions are applicable
in separate circumstances. If there is a
technical or legal limitation that prevents an
entity from complying with § 35.200 for
certain content, § 35.202 is applicable. The
entity can create a conforming alternate
version for that content and, under § 35.202,
that entity will be in compliance with
subpart H of this part. Separately, if a
fundamental alteration or undue financial
and administrative burdens prevent a public
entity from complying with § 35.200 for
certain content, § 35.204 is applicable. As set
forth in § 35.204, the public entity must still
take any other action that would not result
in such an alteration or such burdens but
would nevertheless ensure that individuals
with disabilities receive the benefits or
services provided by the public entity to the
maximum extent possible. A public entity’s
legitimate claim of fundamental alteration or
undue burdens does not constitute a legal
limitation under § 35.202 for which a
conforming alternate version automatically
suffices to comply with subpart H. Rather,
the public entity must ensure access ‘‘to the
maximum extent possible’’ under the specific
facts and circumstances of the situation.
Under the specific facts a public entity is
facing, the public entity’s best option to
ensure maximum access may be an alternate
version of its content, but the public entity
also may be required to do something more
or something different. Because the language
of § 35.204 already allows for alternate
versions if appropriate for the facts of public
entity’s fundamental alteration or undue
burdens, the Department does not see a need
to expand the language of § 35.202 to address
commenters’ concerns.
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Section 35.203 Equivalent Facilitation
Section 35.203 provides that nothing
prevents a public entity from using designs,
methods, or techniques as alternatives to
those prescribed in the regulation, provided
that such alternatives result in substantially
equivalent or greater accessibility and
usability. The 1991 and 2010 ADA Standards
for Accessible Design both contain an
equivalent facilitation provision.194 The
reason for allowing for equivalent facilitation
in subpart H of this part is to encourage
flexibility and innovation by public entities
while still ensuring equal or greater access to
web content and mobile apps. Especially in
light of the rapid pace at which technology
changes, this provision is intended to clarify
that public entities can use methods or
techniques that provide equal or greater
accessibility than subpart H would require.
For example, if a public entity wanted to
conform its web content or mobile app to a
future web content and mobile app
accessibility standard that expands
accessibility requirements beyond WCAG 2.1
Level AA, this provision makes clear that the
public entity would be in compliance with
subpart H. Public entities could also choose
to comply with subpart H by conforming
their web content to WCAG 2.2 Level AA 195
because WCAG 2.2 Level AA provides
substantially equivalent or greater
accessibility and usability to WCAG 2.1 Level
AA; in particular, WCAG 2.2 Level AA
includes additional success criteria not found
in WCAG 2.1 Level AA and every success
criterion in WCAG 2.1 Level AA, with the
exception of one success criterion that is
obsolete.196 Similarly, a public entity could
comply with subpart H by conforming its
web content and mobile apps to WCAG 2.1
Level AAA,197 which is the same version of
WCAG and includes all the WCAG 2.1 Level
AA requirements, but includes additional
requirements not found in WCAG 2.1 Level
AA for even greater accessibility. For
example, WCAG 2.1 Level AAA includes
Success Criterion 2.4.10 198 for section
headings used to organize content and
Success Criterion 3.1.4 199 that includes a
mechanism for identifying the expanded
form or meaning of abbreviations, among
others. The Department believes that this
provision offers needed flexibility for entities
to provide usability and accessibility that
meet or exceed what subpart H of this part
would require as technology continues to
develop. The responsibility for
demonstrating equivalent facilitation rests
with the public entity. Subpart H adopts the
approach as proposed in the NPRM,200 but
the Department edited the regulatory text to
fix a grammatical error by adding a comma
in the original sentence in the provision.
The Department received a comment
arguing that providing phone support in lieu
of a WCAG 2.1-compliant website should
constitute equivalent facilitation. As
discussed in the section entitled ‘‘History of
the Department’s Title II Web-Related
Interpretation and Guidance,’’ the
Department no longer believes telephone
lines can realistically provide equal access to
people with disabilities. Websites—and often
mobile apps—allow members of the public to
get information or request a service within
just a few minutes, and often to do so
independently. Getting the same information
or requesting the same service using a staffed
telephone line takes more steps and may
result in wait times or difficulty getting the
information.
For example, State and local government
entities’ web content and mobile apps may
allow members of the public to quickly
review large quantities of information, like
information about how to register for
government services, information on pending
government ordinances, or instructions about
how to apply for a government benefit.
Members of the public can then use
government web content or mobile apps to
promptly act on that information by, for
example, registering for programs or
activities, submitting comments on pending
government ordinances, or filling out an
application for a government benefit. A
member of the public could not realistically
accomplish these tasks efficiently over the
phone.
Additionally, a person with a disability
who cannot use an inaccessible online tax
form might have to call to request assistance
with filling out either online or mailed forms,
194 See 28 CFR part 36, appendix D, at 1000
(2022) (1991 ADA Standards); 36 CFR part 1191,
appendix B, at 329 (2022) (2010 ADA Standards).
195 W3C, WCAG 2 Overview, https://www.w3.org/
WAI/standards-guidelines/wcag/ [https://perma.cc/
RQS2-P7JC] (Oct. 5, 2023).
196 W3C, What’s New in WCAG 2.2 Draft, https://
www.w3.org/WAI/standards-guidelines/wcag/newin-22/ [https://perma.cc/GDM3-A6SE] (Oct. 5,
2023).
197 W3C, Web Content Accessibility Guidelines
(WCAG) 2.1, § 5.2 Conformance Requirements (June
5, 2018), https://www.w3.org/TR/2018/RECWCAG21-20180605/#conformance-reqs [https://
perma.cc/XV2E-ESM8].
198 See W3C, Web Content Accessibility
Guidelines (WCAG) 2.1, Success Criterion 2.4.10
Section Headings (June 5, 2018), https://
www.w3.org/TR/2018/REC-WCAG21-20180605/
#conformance-reqs:∼:text=Success%20Criterion%
202.4.10,Criterion%204.1.2 [https://perma.cc/
9BNS-8LWK].
199 See W3C, Web Content Accessibility
Guidelines (WCAG) 2.1, Success Criterion 3.1.4
Abbreviations (June 5, 2018), https://www.w3.org/
TR/2018/REC-WCAG21-20180605/#conformancereqs:∼:text=Success%20Criterion%203.1.4,
abbreviations%20is%20available [https://perma.cc/
ZK6C-9RHD].
200 88 FR 52020.
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The Department also wishes to clarify the
relationship between §§ 35.202 and 35.205,
which are analyzed independently of each
other. Section 35.202 provides that a public
entity may use conforming alternate versions
of web content, as defined by WCAG 2.1, to
comply with § 35.200 only where it is not
possible to make web content directly
accessible due to technical or legal
limitations. Accordingly, if a public entity
does not make its web content directly
accessible and instead provides a conforming
alternate version when not required by
technical or legal limitations, the public
entity may not use that conforming alternate
version to comply with its obligations under
subpart H of this part, either by relying on
§ 35.202 or by invoking § 35.205.
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which could involve significant delay, added
costs, and could require providing private
information such as banking details or Social
Security numbers over the phone without the
benefit of certain security features available
for online transactions. A staffed telephone
line also may not be accessible to someone
who is deafblind, or who may have
combinations of other disabilities, such as a
coordination issue impacting typing, and an
audio processing disability impacting
comprehension over the phone. However,
such individuals may be able to use web
content and mobile apps that are accessible.
Finally, calling a staffed telephone line
lacks the privacy of looking up information
on a public entity’s web content or mobile
app. A caller needing public safety resources,
for example, might be unable to access a
private location to ask for help on the phone,
whereas accessible web content or mobile
apps would allow users to privately locate
resources. For these reasons, the Department
does not now believe that a staffed telephone
line—even if it is offered 24/7—provides
equal opportunity in the way that accessible
web content or mobile apps would.
Section 35.204 Duties
Section 35.204 sets forth the general
limitations on the obligations under subpart
H of this part. Section 35.204 provides that
in meeting the accessibility requirements set
out in subpart H, a public entity is not
required to take any action that would result
in a fundamental alteration in the nature of
a service, program, or activity, or in undue
financial and administrative burdens. These
limitations on a public entity’s duty to
comply with the regulatory provisions mirror
the fundamental alteration and undue
burdens compliance limitations currently
provided in the title II regulation in
§§ 35.150(a)(3) (existing facilities) and 35.164
(effective communication), and the
fundamental alteration compliance limitation
currently provided in the title II regulation in
§ 35.130(b)(7) (reasonable modifications in
policies, practices, or procedures). These
limitations are thus familiar to public
entities.
The word ‘‘full’’ was removed in § 35.204
so that the text reads ‘‘compliance’’ rather
than ‘‘full compliance.’’ The Department
made this change because § 35.200(b)(1) and
(2) clarifies that compliance with subpart H
of this part includes complying with the
success criteria and conformance
requirements under Level A and Level AA
specified in WCAG 2.1. This minor revision
does not affect the meaning of § 35.204, but
rather removes an extraneous word to avoid
redundancy and confusion.
In determining whether an action would
result in undue financial and administrative
burdens, all of a public entity’s resources
available for use in the funding and operation
of the service, program, or activity should be
considered. The burden of proving that
compliance with the requirements of § 35.200
would fundamentally alter the nature of a
service, program, or activity, or would result
in undue financial and administrative
burdens, rests with the public entity. As the
Department has consistently maintained
since promulgation of the title II regulation
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in 1991, the decision that compliance would
result in a fundamental alteration or impose
undue burdens must be made by the head of
the public entity or their designee, and must
be memorialized with a written statement of
the reasons for reaching that conclusion.201
The Department has recognized the difficulty
public entities have in identifying the official
responsible for this determination, given the
variety of organizational structures within
public entities and their components.202 The
Department has made clear that the
determination must be made by a high level
official, no lower than a Department head,
having budgetary authority and
responsibility for making spending
decisions.203
The Department believes, in general, it
would not constitute a fundamental
alteration of a public entity’s services,
programs, or activities to modify web content
or mobile apps to make them accessible
within the meaning of subpart H of this part.
However, this is a fact-specific inquiry, and
the Department provides some examples later
in this section of when a public entity may
be able to claim a fundamental alteration.
Moreover, like the fundamental alteration or
undue burdens limitations in the title II
regulation referenced in the preceding
paragraphs, § 35.204 does not relieve a public
entity of all obligations to individuals with
disabilities. Although a public entity under
this part is not required to take actions that
would result in a fundamental alteration in
the nature of a service, program, or activity
or in undue financial and administrative
burdens, it nevertheless must comply with
the requirements of subpart H of this part to
the extent that compliance does not result in
a fundamental alteration or undue financial
and administrative burdens. For instance, a
public entity might determine that complying
with all of the success criteria under WCAG
2.1 Level AA would result in a fundamental
alteration or undue financial and
administrative burdens. However, the public
entity must then determine whether it can
take any other action that would not result
in such an alteration or such burdens, but
would nevertheless ensure that individuals
with disabilities receive the benefits or
services provided by the public entity to the
maximum extent possible. To the extent that
the public entity can, it must do so. This may
include the public entity’s bringing its web
content into conformance to some of the
WCAG 2.1 Level A or Level AA success
criteria.
It is the Department’s view that most
entities that choose to assert a claim that
complying with all of the requirements under
WCAG 2.1 Level AA would result in undue
financial and administrative burdens will be
able to attain at least partial compliance in
many circumstances. The Department
believes that there are many steps a public
entity can take to conform to WCAG 2.1
Level AA that should not result in undue
financial and administrative burdens,
depending on the particular circumstances.
Complying with the web and mobile app
accessibility requirements set forth in subpart
H means that a public entity is not required
by title II of the ADA to make any further
modifications to the web content or content
in mobile apps that it makes available to the
public. However, it is important to note that
compliance with subpart H of this part will
not relieve title II entities of their distinct
employment-related obligations under title I
of the ADA. The Department realizes that the
regulations in subpart H are not going to meet
the needs of and provide access to every
individual with a disability, but believes that
setting a consistent and enforceable web
accessibility standard that meets the needs of
a majority of individuals with disabilities
will provide greater predictability for public
entities, as well as added assurance of
accessibility for individuals with disabilities.
This approach is consistent with the
approach the Department has taken in the
context of physical accessibility under title II.
In that context, a public entity is not required
to exceed the applicable design requirements
of the ADA Standards even if certain
wheelchairs or other power-driven mobility
devices require a greater degree of
accessibility than the ADA Standards
provide.204 The entity may still be required,
however, to make other modifications to how
it provides a program, service, or activity,
where necessary to provide access for a
specific individual. For example, where an
individual with a disability cannot
physically access a program provided in a
building that complies with the ADA
Standards, the public entity does not need to
make physical alterations to the building but
may need to take other steps to ensure that
the individual has an equal opportunity to
participate in and benefit from that program.
Similarly, just because an entity is in
compliance with the web content or mobile
app accessibility standard in subpart H of
this part does not mean it has met all of its
obligations under the ADA or other
applicable laws—it means only that it is not
required to make further changes to the web
content or content in mobile apps that it
makes available. If an individual with a
disability, on the basis of disability, cannot
access or does not have equal access to a
service, program, or activity through a public
entity’s web content or mobile app that
conforms to WCAG 2.1 Level AA, the public
entity is still obligated under § 35.200(a) to
provide the individual an alternative method
of access to that service, program, or activity
unless the public entity can demonstrate that
alternative methods of access would result in
a fundamental alteration in the nature of a
service, program, or activity or in undue
financial and administrative burdens.205 The
entity also must still satisfy its general
obligations to provide effective
communication, reasonable modifications,
and an equal opportunity to participate in or
benefit from the entity’s services, programs,
or activities.206
The public entity must determine on a
case-by-case basis how best to meet the needs
of those individuals who cannot access a
204 See
201 Section
35.150(a)(3) and 35.164.
202 28 CFR part 35, appendix B, at 708 (2022).
203 Id.
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28 CFR part 35, appendix A, at 626 (2022).
e.g., §§ 35.130(b)(1)(ii) and (b)(7) and
205 See,
35.160.
206 See id.
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service, program, or activity that the public
entity provides through web content or
mobile apps that comply with all of the
requirements under WCAG 2.1 Level AA. A
public entity should refer to § 35.130(b)(1)(ii)
to determine its obligations to provide
individuals with disabilities an equal
opportunity to participate in and enjoy the
benefits of the public entity’s services,
programs, or activities. A public entity
should refer to § 35.160 (effective
communication) to determine its obligations
to provide individuals with disabilities with
the appropriate auxiliary aids and services
necessary to afford them an equal
opportunity to participate in, and enjoy the
benefits of, the public entity’s services,
programs, or activities. A public entity
should refer to § 35.130(b)(7) (reasonable
modifications) to determine its obligations to
provide reasonable modifications in policies,
practices, or procedures to avoid
discrimination on the basis of disability. It is
helpful to provide individuals with
disabilities with information about how to
obtain the modifications or auxiliary aids and
services they may need. For example, while
not required in subpart H of this part, a
public entity is encouraged to provide an
email address, accessible link, accessible web
page, or other accessible means of contacting
the public entity to provide information
about issues individuals with disabilities
may encounter accessing web content or
mobile apps or to request assistance.207
Providing this information will help public
entities ensure that they are satisfying their
obligations to provide equal access, effective
communication, and reasonable
modifications.
The Department also clarifies that a public
entity’s requirement to comply with existing
ADA obligations remains true for content that
fits under one of the exceptions under
§ 35.201. For example, in the appropriate
circumstances, an entity may be obligated to
add captions to a video that falls within the
archived content exception and provide the
captioned video file to the individual with a
disability who needs access to the video, or
edit an individualized password-protected
PDF to be usable with a screen reader and
provide it via a secure method to the
individual with a disability. Of course, an
entity may also choose to further modify the
web content or content in mobile apps it
makes available to make that content more
accessible or usable than subpart H of this
part requires. In the context of the preceding
examples, for instance, the Department
believes it will often be most economical and
logical for an entity to post the captioned
video, once modified, as part of web content
made available to the public, or to modify the
individualized PDF template so that it is
used for all members of the public going
forward.
The Department received comments
indicating that the fundamental alteration or
undue burdens limitations as discussed in
207 See W3C, Developing an Accessibility
Statement, https://www.w3.org/WAI/planning/
statements/ [https://perma.cc/85WU-JTJ6] (Mar. 11,
2021).
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the ‘‘Duties’’ section of the NPRM 208 are
appropriate and align with the framework of
the ADA. The Department also received
comments expressing concern that there are
no objective standards to help public entities
understand when the fundamental alteration
and undue burdens limitations will apply.
Accordingly, some commenters asked the
Department to make clearer when public
entities can and cannot raise these
limitations. Some of these commenters said
that the lack of clarity about these limitations
could result in higher litigation costs or
frivolous lawsuits. The Department
acknowledges these concerns and notes that
fundamental alteration and undue burdens
are longstanding limitations under the
ADA,209 and therefore the public should
already be familiar with these limitations in
other contexts. The Department has provided
guidance that addresses the fundamental
alteration and undue burdens limitations and
will consider providing additional guidance
in the future.210
The Department received some comments
suggesting that the Department should state
whether certain examples amount to a
fundamental alteration or undue burdens or
amend the regulation to address the
examples. For example, one commenter
indicated that some digital content cannot be
made accessible and therefore technical
infeasibility should be considered an undue
burden. Another commenter asserted that it
may be an undue burden to require large
documents that are 300 pages or more to be
accessible under the final regulations;
therefore, the final regulations should
include a rebuttable presumption that public
entities do not have to make these larger
documents accessible. In addition, one
commenter said they believe that testing the
accessibility of web content and mobile apps
imposes an undue burden. However, another
commenter opined that improving web code
is unlikely to pose a fundamental alteration
in most cases.
Whether the undue burdens limitation
applies is a fact-specific assessment that
involves considering a variety of factors. For
example, some small towns have minimal
operating budgets measured in the thousands
or tens of thousands of dollars. If such a town
had an archive section of its website with a
large volume of material gathered by the
town’s historical society (such as old
photographs and handwritten journal entries
from town elders), the town would have an
obligation under the existing title II
regulation to ensure that its services,
programs, and activities offered using web
content and mobile apps are accessible to
individuals with disabilities. However, it
might be an undue burden for the town to
make all those materials fully accessible in a
short period of time in response to a request
by an individual with a disability.211
208 88
FR 51978–51980.
§§ 35.130(b)(7)(i), 35.150(a)(3), and
35.164. These regulatory provisions were also in the
Department’s 1991 regulations at 28 CFR
35.130(b)(7), 35.150(a)(3), and 35.164, respectively.
210 See, e.g., U.S. Dep’t of Just., ADA Update: A
Primer for State and Local Governments, https://
www.ada.gov/resources/title-ii-primer/ [https://
perma.cc/ZV66-EFWU] (Feb. 28, 2020).
211 See §§ 35.130(b)(1)(ii) and (b)(7) and 35.160.
209 See
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Whether the undue burdens limitation
applies, however, would depend, among
other things, on how large the town’s
operating budget is and how much it would
cost to make the materials in question
accessible. Whether the limitation applies
will also vary over time. Increases in town
budget, or changes in technology that reduce
the cost of making the historical materials
accessible, may make the limitation
inapplicable. Lastly, even where it would
impose an undue burden on the town to
make its historical materials accessible
within a certain time frame, the town would
still need to take any other action that would
not result in such a burden but would
nevertheless ensure that individuals with
disabilities receive the benefits or services
provided by the town to the maximum extent
possible.
Application of the fundamental alteration
limitation is similarly fact specific. For
example, a county library might hold an art
contest in which elementary school students
submit alternative covers for their favorite
books and library goers view and vote on the
submissions on the library website. It would
likely be a fundamental alteration to require
the library to modify each piece of artwork
so that any text drawn on the alternative
covers, such as the title of the book or the
author’s name, satisfies the color contrast
requirements in the technical standard. Even
so, the library would still be required to take
any other action that would not result in
such an alteration but would nevertheless
ensure that individuals with disabilities
could participate in the contest to the
maximum extent possible.
Because each assessment of whether the
fundamental alteration or undue burdens
limitations applies will vary depending on
the entity, the time of the assessment, and
various other facts and circumstances, the
Department declines to adopt any rebuttable
presumptions about when the fundamental
alteration or undue burdens limitations
would apply.
One commenter proposed that the final
regulations should specify factors that should
be considered with respect to the undue
burdens limitation, such as the number of
website requirements that public entities
must comply with and the budget, staff, and
other resources needed to achieve
compliance with these requirements. The
Department declines to make changes to the
regulatory text because the Department does
not believe listing specific factors would be
appropriate, particularly given that these
limitations apply in other contexts in title II.
Also, as noted earlier, the Department
believes that generally, it would not
constitute a fundamental alteration of a
public entity’s services, programs, or
activities to modify web content or mobile
apps to make them accessible in compliance
with subpart H of this part.
The Department received a comment
suggesting that the regulatory text should
require a public entity claiming the undue
burdens limitation to identify the
inaccessible content at issue, set a reliable
point of contact for people with disabilities
seeking to access the inaccessible content,
and develop a plan and timeline for
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remediating the inaccessible content. The
Department declines to take this suggested
approach because it would be a departure
from how the limitation generally applies in
other contexts covered by title II of the
ADA.212 In these other contexts, if an action
would result in a fundamental alteration or
undue burdens, a public entity must still take
any other action that would not result in
such an alteration or such burdens but would
nevertheless ensure that individuals with
disabilities receive the benefits or services
provided by the public entity to the
maximum extent possible.213 The
Department believes it is important to apply
these longstanding limitations in the same
way to web content and mobile apps to
ensure clarity for public entities and
consistent enforcement of the ADA. In
addition, implementing the commenter’s
suggested approach would create additional
costs for public entities. The Department
nevertheless encourages public entities to
engage in practices that would improve
accessibility and ensure transparency when
public entities seek to invoke the
fundamental alteration or undue burdens
limitations. For example, a public entity can
provide an accessibility statement that
informs the public how to bring web content
or mobile app accessibility problems to the
public entity’s attention, and it can also
develop and implement a procedure for
reviewing and addressing any such issues
raised.
Some commenters raised concerns about
the requirement in § 35.204 that the decision
that compliance with subpart H of this part
would result in a fundamental alteration or
in undue financial or administrative burdens
must be made by the head of a public entity
or their designee. These commenters wanted
more clarity about who is the head of a
public entity. They also expressed concern
that this requirement may be onerous for
public entities. The Department notes in
response to these commenters that this
approach is consistent with the existing title
II framework in §§ 35.150(a)(3) (service,
program, or activity accessibility) and 35.164
(effective communication). With respect to
the commenters’ concern about who is the
head of a public entity or their designee, the
Department recognizes the difficulty of
identifying the official responsible for this
determination given the variety of
organizational forms of public entities and
their components. The Department has made
clear that ‘‘the determination must be made
by a high level official, no lower than a
Department head, having budgetary authority
and responsibility for making spending
decisions.’’ 214 The Department reiterates that
this is an existing concept in title II of the
ADA, so public entities should be familiar
with this requirement. The appropriate
relevant official may vary depending on the
public entity.
Section 35.205 Effect of Noncompliance
That Has a Minimal Impact on Access
Section 35.205 sets forth when a public
entity will be deemed to have complied with
212 See
§§ 35.150(a)(3) and 35.164.
id.
214 28 CFR part 35, appendix B, at 708 (2022).
213 See
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§ 35.200 despite limited nonconformance to
the technical standard. This provision adopts
one of the possible approaches to compliance
discussed in the NPRM.215 As discussed in
this section, public comments indicated that
the final rule needed to account for the
increased risk of instances of
nonconformance to the technical standard,
due to the unique and particular challenges
to achieving perfect, uninterrupted
conformance in the digital space. The
Department believes that § 35.205 meets this
need, ensuring the full and equal access to
which individuals with disabilities are
entitled while allowing some flexibility for
public entities if nonconformance to WCAG
2.1 Level AA is so minimal as to not affect
use of the public entity’s web content or
mobile app.
Discussion of Regulatory Text
Section 35.205 describes a particular,
limited circumstance in which a public
entity will be deemed to have met the
requirements of § 35.200 even though the
public entity’s web content or mobile app
does not perfectly conform to the technical
standard set forth in § 35.200(b). Section
35.205 will apply if the entity can
demonstrate that, although it was technically
out of conformance to WCAG 2.1 Level AA
(i.e., fails to exactly satisfy a success criterion
or conformance requirement), the
nonconformance has a minimal impact on
access for individuals with disabilities, as
defined in the regulatory text. If a public
entity can make this showing, it will be
deemed to have met its obligations under
§ 35.200 despite its nonconformance to
WCAG 2.1 Level AA.
Section 35.205 does not alter a public
entity’s general obligations under subpart H
of this part nor is it intended as a blanket
justification for a public entity to avoid
conforming with WCAG 2.1 Level AA from
the outset. Rather, § 35.205 is intended to
apply in rare circumstances and will require
a detailed analysis of the specific facts
surrounding the impact of each alleged
instance of nonconformance. The Department
does not expect or intend that § 35.205 will
excuse most nonconformance to the technical
standard. Under § 35.200(b), a public entity
must typically ensure that the web content
and mobile apps it provides or makes
available, directly or through contractual,
licensing, or other arrangements, comply
with Level A and Level AA success criteria
and conformance requirements specified in
WCAG 2.1. This remains generally true.
However, § 35.205 allows for some minor
deviations from WCAG 2.1 Level AA if
specific conditions are met. This will provide
a public entity that discovers that it is out of
compliance with the requirements of
§ 35.200(b) with another means to avoid the
potential liability that could result. Public
entities that maintain conformance to WCAG
2.1 Level AA will not have to rely on
§ 35.205 to be deemed compliant with
§ 35.200, and full conformance to WCAG 2.1
Level AA is the only definitive way to
guarantee that outcome. However, if a public
entity falls out of conformance in a minimal
way or such nonconformance is alleged, a
public entity may be able to use § 35.205 to
demonstrate that it has satisfied its legal
obligations. Section 35.205 also does not alter
existing ADA enforcement mechanisms.
Individuals can file complaints, and agencies
can conduct investigations and compliance
reviews, related to subpart H of this part the
same way they would for any other
requirement under title II.216
As the text of the provision indicates, the
burden of demonstrating applicability of
§ 35.205 is on the public entity. The
provision will only apply in the limited
circumstance in which the public entity can
demonstrate that all of the criteria described
in § 35.205 are satisfied. This section requires
the public entity to show that its
nonconformance to WCAG 2.1 Level AA has
such a minimal impact on access that it
would not affect the ability of individuals
with disabilities to use the public entity’s
web content or mobile app as defined in the
remainder of the section. If the
nonconformance has affected an individual
in the ways outlined in § 35.205 (further
described in the subsequent paragraphs), the
public entity will not be able to rely on this
provision. Further, as ‘‘demonstrate’’
indicates, the public entity must provide
evidence that all of the criteria described in
§ 35.205 are satisfied in order to substantiate
its reliance on this provision. While § 35.205
does not require a particular type of
evidence, a public entity needs to show that,
as the text states, its nonconformance ‘‘would
not affect’’ the experience of individuals with
disabilities as outlined in subsequent
paragraphs. Therefore, it would not be
sufficient for a public entity to show only
that it has not received any complaints
regarding the nonconformance; nor would it
likely be enough if the public entity only
pointed to a few particular individuals with
disabilities who were unaffected by the
nonconformance. The public entity must
show that the nonconformance is of a nature
that would not affect people whose
disabilities are pertinent to the
nonconformance at issue, just as the analysis
under other parts of the title II regulation
depends on the barrier at issue and the access
needs of individuals with disabilities
pertinent to that barrier.217 For example,
people with hearing or auditory processing
disabilities, among others, have disabilities
pertinent to captioning requirements.
With respect to the particular criteria that
a public entity must satisfy, § 35.205
describes both what people with disabilities
must be able to use the public entity’s web
content or mobile apps to do and the manner
in which people with disabilities must be
able to do it. As to manner of use, § 35.205
provides that nonconformance to WCAG 2.1
Level AA must not affect the ability of
individuals with disabilities to use the public
entity’s web content or mobile app in a
manner that provides substantially
equivalent timeliness, privacy,
independence, and ease of use compared to
individuals without disabilities. Timeliness,
216 See
217 Cf.,
215 88
FR 51983.
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privacy, and independence are underscored
throughout the ADA framework as key
components of ensuring equal opportunity
for individuals with disabilities to participate
in or benefit from a public entity’s services,
programs, and activities, as explained further
later in the discussion of this provision, and
‘‘ease of use’’ is intended to broadly
encompass other aspects of a user’s
experience with web content or mobile apps.
To successfully rely on § 35.205, it would not
be sufficient for a public entity to
demonstrate merely that its nonconformance
would not completely block people with
disabilities from using web content or a
mobile app as described in § 35.205(a)
through (d). That is, the term ‘‘would not
affect’’ should not be read in isolation from
the rest of § 35.205 to suggest that a public
entity only needs to show that a particular
objective can be achieved. Rather, a public
entity must also demonstrate that, even
though the web content or mobile app does
not conform to the technical standard, the
user experience for individuals with
disabilities is substantially equivalent to the
experience of individuals without
disabilities.
For example, if a State’s online renewal
form does not conform to WCAG 2.1 Level
AA, a person with a manual dexterity
disability may need to spend significantly
more time to renew their professional license
online than someone without a disability.
This person might also need to seek
assistance from someone who does not have
a disability, provide personal information to
someone else, or endure a much more
cumbersome and frustrating process than a
user without a disability. Even if this person
with a disability was ultimately able to renew
their license online, § 35.205 would not
apply because, under these circumstances,
their ability to use the web content in a
manner that provides substantially
equivalent timeliness, privacy,
independence, and ease of use would be
affected. Analysis under this provision is
likely to be a fact-intensive analysis. Of
course, a public entity is not responsible for
every factor that might make a task more
time-consuming or difficult for a person with
a disability. However, a public entity is
responsible for the impact of its
nonconformance to the technical standard set
forth in subpart H of this part. The public
entity must show that its nonconformance
would not affect the ability of individuals
with pertinent disabilities to use the web
content or mobile app in a manner that
provides substantially equivalent timeliness,
privacy, independence, and ease of use.
Paragraphs (a) through (d) of § 35.205
describe what people with disabilities must
be able to use the public entity’s web content
or mobile apps to do in a manner that is
substantially equivalent as to timeliness,
privacy, independence, and ease of use. First,
under § 35.205(a), individuals with
disabilities must be able to access the same
information as individuals without
disabilities. This means that people with
disabilities can access all the same
information using the web content or mobile
app that users without disabilities are able to
access. For example, § 35.205(a) would not be
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satisfied if certain web content could not be
accessed using a keyboard because the
content was coded in a way that caused the
keyboard to skip over some content. In this
example, an individual who relies on a
screen reader would not be able to access the
same information as an individual without a
disability because all of the information
could not be selected with their keyboard so
that it would be read aloud by their screen
reader. However, § 35.205(a) might be
satisfied if the color contrast ratio for some
sections of text is 4.45:1 instead of 4.5:1 as
required by WCAG 2.1 Success Criterion
1.4.3.218 Similarly, this provision might
apply if the spacing between words is only
0.15 times the font size instead of 0.16 times
as required by WCAG 2.1 Success Criterion
1.4.12.219 Such slight deviations from the
specified requirements are unlikely to affect
the ability of, for example, most people with
vision disabilities to access information that
they would be able to access if the content
fully conformed with the technical standard.
However, the entity must always demonstrate
that this element is met with respect to the
specific facts of the nonconformance at issue.
Second, § 35.205(b) states that individuals
with disabilities must be able to engage in the
same interactions as individuals without
disabilities. This means that people with
disabilities can interact with the web content
or mobile app in all of the same ways that
people without disabilities can. For example,
§ 35.205(b) would not be satisfied if people
with disabilities could not interact with all
of the different components of the web
content or mobile app, such as chat
functionality, messaging, calculators,
calendars, and search functions. However,
§ 35.205(b) might be satisfied if the time limit
for an interaction, such as a chat response,
expires at exactly 20 hours, even though
Success Criterion 2.2.1,220 which generally
requires certain safeguards to prevent time
limits from expiring, has an exception that
only applies if the time limit is longer than
20 hours. People with certain types of
disabilities, such as cognitive disabilities,
may need more time than people without
disabilities to engage in interactions. A slight
deviation in timing, especially when the time
limit is long and the intended interaction is
brief, is unlikely to affect the ability of people
with these types of disabilities to engage in
interactions. Still, the public entity must
always demonstrate that this element is met
with respect to the specific facts of the
nonconformance at issue.
Third, pursuant to § 35.205(c), individuals
with disabilities must be able to conduct the
218 See W3C, Web Content Accessibility
Guidelines (WCAG) 2.1, Success Criterion 1.4.3
Contrast (Minimum) (June 5, 2018), https://
www.w3.org/TR/2018/REC-WCAG21-20180605/
#contrast-minimum [https://perma.cc/4XS3AX7W].
219 See W3C, Web Content Accessibility
Guidelines (WCAG) 2.1, Success Criterion 1.4.12
Text Spacing (June 5, 2018), https://www.w3.org/
TR/2018/REC-WCAG21-20180605/#text-spacing
[https://perma.cc/B4A5-843F].
220 See W3C, Web Content Accessibility
Guidelines (WCAG) 2.1, Success Criterion 2.2.1
Timing Adjustable (June 5, 2018), https://
www.w3.org/TR/2018/REC-WCAG21-20180605/
#timing-adjustable [https://perma.cc/V3XZ-KJDG].
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same transactions as individuals without
disabilities. This means that people with
disabilities can complete all of the same
transactions on the web content or mobile
app that people without disabilities can. For
example, § 35.205(c) would not be satisfied if
people with disabilities could not submit a
form or process their payment. However,
§ 35.205(c) would likely be satisfied if web
content does not conform to Success
Criterion 4.1.1 about parsing. This Success
Criterion requires that information is coded
properly so that technology like browsers and
screen readers can accurately interpret the
content and, for instance, deliver that content
to a user correctly so that they can complete
a transaction, or avoid crashing in the middle
of the transaction.221 However, according to
W3C, this Success Criterion is no longer
needed to ensure accessibility because of
improvements in browsers and assistive
technology.222 Thus, although conformance
to this Success Criterion is required by
WCAG 2.1 Level AA, a failure to conform to
this Success Criterion is unlikely to affect the
ability of people with disabilities to conduct
transactions. However, the entity must
always demonstrate that this element is met
with respect to the specific facts of the
nonconformance at issue.
Fourth, § 35.205(d) requires that
individuals with disabilities must be able to
otherwise participate in or benefit from the
same services, programs, and activities as
individuals without disabilities. Section
35.205(d) is intended to address anything
else within the scope of title II (i.e., any
service, program, or activity that cannot fairly
be characterized as accessing information,
engaging in an interaction, or conducting a
transaction) for which someone who does not
have a disability could use the public entity’s
web content or mobile app. Section 35.205(d)
should be construed broadly to ensure that
the ability of individuals with disabilities to
use any part of the public entity’s web
content or mobile app that individuals
without disabilities are able to use is not
affected by nonconformance to the technical
standard.
Explanation of Changes From Language
Discussed in the NPRM
The regulatory language codified in
§ 35.205 is very similar to language discussed
in the NPRM’s preamble.223 However, the
Department believes it is helpful to explain
differences between that discussion in the
NPRM and the final rule. The Department
has only made three substantive changes to
the NPRM’s relevant language.
First, though the NPRM discussed excusing
noncompliance that ‘‘does not prevent’’ equal
access, § 35.205 excuses noncompliance that
‘‘would not affect’’ such access. The
Department was concerned that the use of
‘‘does not’’ could have been incorrectly read
221 W3C, Understanding SC 4.1.1: Parsing (Level
A), https://www.w3.org/WAI/WCAG21/
Understanding/parsing.html [https://perma.cc/
5Z8Q-GW5E] (June 20, 2023).
222 W3C, WCAG 2 FAQ, How and why is success
criteria 4.1.1 Parsing obsolete?, https://www.w3.org/
WAI/standards-guidelines/wcag/faq/#parsing411
[https://perma.cc/7Q9H-JVSZ] (Oct. 5, 2023).
223 88 FR 51983.
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to require a showing that a specific
individual did not have substantially
equivalent access to the web content or
mobile app. In changing the language to
‘‘would not,’’ the Department clarifies that
the threshold requirements for bringing a
challenge to compliance under subpart H of
this part are the same as under any other
provision of the ADA. Except as otherwise
required by existing law, a rebuttal of a
public entity’s invocation of this provision
would not need to show that a specific
individual did not have substantially
equivalent access to the web content or
mobile app. Rather, the issue would be
whether the nonconformance is the type of
barrier that would affect the ability of
individuals with pertinent disabilities to
access the web content or mobile app in a
substantially equivalent manner. The same
principles would apply to informal dispute
resolution or agency investigations resolved
outside of court, for example. Certainly, the
revised standard would encompass a barrier
that actually does affect a specific
individual’s access, so this revision does not
narrow the provision.
Second, the Department originally
proposed considering whether
nonconformance ‘‘prevent[s] a person with a
disability’’ from using the web content or
mobile app, but § 35.205 instead considers
whether nonconformance would ‘‘affect the
ability of individuals with disabilities’’ to use
the web content or mobile app. This revision
is intended to clarify what a public entity
seeking to invoke this provision needs to
demonstrate. The Department explained in
the NPRM that the purpose of this approach
was to provide equal access to people with
disabilities, and limit violations to those that
affect access.224 But even when not entirely
prevented from using web content or mobile
app, an individual with disabilities can still
be denied equal access by impediments
falling short of that standard. The language
now used in this provision more accurately
reflects this reality and achieves the objective
proposed in the NPRM. As explained earlier
in the discussion of § 35.205, under the
language in this provision, it would not be
sufficient for a public entity to show that
nonconformance would not completely block
people with disabilities from using the public
entity’s web content or a mobile app as
described in § 35.205(a) through (d). In other
words, someone would not need to be
entirely prevented from using the web
content or mobile app before an entity could
be considered out of compliance. Instead, the
effect of the nonconformance must be
considered. This does not mean that any
effect on usability, however slight, is
sufficient to prove a violation. Only
nonconformance that would affect the ability
of individuals with disabilities to do the
activities in § 35.205(a) through (d) in a way
that provides substantially equivalent
timeliness, privacy, independence, and ease
of use would prevent a public entity from
relying on this provision.
Third, the language proposed in the NPRM
considered whether a person with a
disability would have substantially
224 Id.
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equivalent ‘‘ease of use.’’ The Department
believed that timeliness, privacy, and
independence were all components that
affected whether ease of use was
substantially equivalent. Because several
commenters proposed explicitly specifying
these factors in addition to ‘‘ease of use,’’ the
Department is persuaded that these factors
warrant separate inclusion and emphasis as
aspects of user experience that must be
substantially equivalent. This specificity
ensures clarity for public entities, individuals
with disabilities, Federal agencies, and courts
about how to analyze an entity’s invocation
of this provision.
Therefore, the Department has added
additional language to clarify that timeliness,
privacy, and independence are all important
concepts to consider when evaluating
whether this provision applies. If a person
with a disability would need to take
significantly more time to successfully
navigate web content or a mobile app that
does not conform to the technical standard
because of the content or app’s
nonconformance, that person is not being
provided with a substantially equivalent
experience to that of people without
disabilities. Requiring a person with a
disability to spend substantially more time to
do something is placing an additional burden
on them that is not imposed on others.
Privacy and independence are also crucial
components that can affect whether a person
with a disability would be prevented from
having a substantially equivalent experience.
Adding this language to § 35.205 ensures
consistency with the effective
communication provision of the ADA.225 The
Department has included timeliness, privacy,
and independence in this provision for
clarity and to avoid unintentionally
narrowing what should be a fact-intensive
analysis. However, ‘‘ease of use’’ may also
encompass other aspects of a user’s
experience that are not expressly specified in
the regulatory text, such as safety risks
incurred by people with disabilities as a
result of nonconformance.226 This language
should be construed broadly to allow for
consideration of other ways in which
nonconformance would make the experience
of users with disabilities more difficult or
burdensome than the experience of users
without disabilities in specific scenarios.
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Justification for This Provision
After carefully considering the various
public comments received, the Department
believes that a tailored approach is needed
for measuring compliance with a technical
standard in the digital space. The Department
also believes that the compliance framework
adopted in § 35.205 is preferable to any
available alternatives because it strikes the
most appropriate balance between equal
access for individuals with disabilities and
feasibility for public entities.
225 Section
35.160(b)(2).
e.g., W3C, Web Content Accessibility
Guidelines (WCAG) 2.1, Success Criterion 2.3.1.
Three Flashes or Below Threshold (June 5, 2018),
https://www.w3.org/TR/2018/REC-WCAG2120180605/#three-flashes-or-below-threshold
[https://perma.cc/A7P9-WCQY] (addressing aspects
of content design that could trigger seizures or other
physical reactions).
226 See,
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The Need To Tailor a Compliance Approach
for the Digital Space
Most of the commenters who addressed the
question of what approach subpart H of this
part should take to assessing compliance
provided information that supported the
Department’s decision to tailor an approach
for measuring compliance that is specific to
the digital space (i.e., an approach that differs
from the approach that the Department has
taken for physical access). Only a few
commenters believed that the Department
should require 100 percent conformance to
WCAG 2.1 Level AA, as is generally required
for newly constructed facilities.227
Commenters generally discussed two reasons
why a different approach was appropriate:
differences between the physical and digital
space and increased litigation risk.
First, many commenters, including
commenters from State and local government
entities and trade groups representing public
accommodations, emphasized how the built
environment differs from the digital
environment. These commenters agreed with
the Department’s suggestion in the NPRM
that the dynamic and interconnected nature
of web content and mobile apps could
present unique challenges for compliance.228
Digital content changes much more
frequently than buildings do. Every
modification to web content or a mobile app
could lead to some risk of falling out of
perfect conformance to WCAG 2.1 Level AA.
Public entities will need to address this risk
much more frequently under subpart H of
this part than they do under the ADA’s
physical access requirements, because web
content and mobile apps are updated much
more often than buildings are. By their very
nature, web content and mobile apps can
easily be updated often, while most buildings
are designed to last for years, if not decades,
without extensive updates.
As such, State and local government
entities trying to comply with their
obligations under subpart H of this part will
need to evaluate their compliance more
frequently than they evaluate the
accessibility of their buildings. But regular
consideration of how any change that they
make to their web content or mobile app will
affect conformance to WCAG 2.1 Level AA
and the resulting iterative updates may still
allow minor nonconformances to escape
notice. Given these realities attending web
content and mobile apps, the Department
believes that it is likely to be more difficult
for State and local government entities to
maintain perfect conformance to the
technical standard set forth in subpart H than
it is to comply with the ADA Standards.
Commenters agreed that maintaining perfect
conformance to the technical standard would
be difficult.
Web content and content in mobile apps
are also more likely to be interconnected,
such that updates to some content may affect
the conformance of other content in
unexpected ways, including in ways that
may lead to technical nonconformance
without affecting the user experience for
individuals with disabilities. Thus, to
227 Section
228 88
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FR 51981.
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maintain perfect conformance, it would not
necessarily be sufficient for public entities to
confirm the conformance of their new
content; they would also need to ensure that
any updates do not affect the conformance of
existing content. The same kind of challenge
is unlikely to occur in physical spaces.
Second, many commenters raised concerns
about the litigation risk that requiring perfect
conformance to WCAG 2.1 Level AA would
pose. Commenters feared being subjected to
a flood of legal claims based on any failure
to conform to the technical standard,
however minor, and regardless of the
impact—or lack thereof—the
nonconformance has on accessibility.
Commenters agreed with the Department’s
suggestion that due to the dynamic, complex,
and interconnected nature of web content
and mobile apps, a public entity’s web
content and mobile apps may be more likely
to be out of conformance to WCAG 2.1 Level
AA than its buildings are to be out of
compliance with the ADA Standards, leading
to increased legal risk. Some commenters
even stated that 100 percent conformance to
WCAG 2.1 Level AA would be unattainable
or impossible to maintain. Commenters also
agreed with the Department’s understanding
that the prevalence of automated web
accessibility testing could enable any
individual to find evidence of
nonconformance to WCAG 2.1 Level AA
even where that individual has not
experienced any impact on access and the
nonconformance would not affect others’
access, with the result that identifying
instances of merely technical
nonconformance to WCAG 2.1 Level AA is
likely much easier than identifying merely
technical noncompliance with the ADA
Standards.
Based on the comments it received, the
Department believes that if it does not
implement a tailored approach to compliance
under subpart H of this part, the burden of
litigation under subpart H could become
particularly challenging for public entities,
enforcement agencies, and the courts.
Though many comments about litigation risk
came from public entities, commenters from
some disability advocacy organizations
agreed that subpart H should not encourage
litigation about issues that do not affect a
person with a disability’s ability to equally
use and benefit from a website or mobile app,
and that liability should be limited. After
considering the information commenters
provided, the Department is persuaded that
measuring compliance as strictly 100 percent
conformance to WCAG 2.1 Level AA would
not be the most prudent approach, and that
an entity’s compliance obligations can be
limited under some narrow circumstances
without undermining the objective of
ensuring equal access to web content and
mobile apps in subpart H.
Reasons for Adopting This Compliance
Approach
The Department has carefully considered
many different approaches to defining when
a State or local government entity has met its
obligations under subpart H of this part. Of
all the approaches considered—including
those discussed in the NPRM as well as those
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proposed by commenters—the Department
believes the compliance approach set forth in
§ 35.205 strikes the most appropriate balance
between providing equal access for people
with disabilities and ensuring feasibility for
public entities, courts, and Federal agencies.
The Department believes that the approach
set forth in subpart H is preferable to all other
approaches because it emphasizes actual
access, is consistent with existing legal
frameworks, and was supported by a wide
range of commenters.
Primarily, the Department has selected this
approach because it appropriately focuses on
the experience of individuals with
disabilities who are trying to use public
entities’ web content or mobile apps. By
looking at the effect of any nonconformance
to the technical standard, this approach will
most successfully implement the ADA’s goals
of ‘‘equality of opportunity’’ and ‘‘full
participation.’’ 229 It will also be consistent
with public entities’ existing regulatory
obligations to provide individuals with
disabilities with an equal opportunity to
participate in and benefit from their services,
obtain the same result, and gain the same
benefit.230 This approach ensures that
nonconformance to the technical standard
can be addressed when it affects these core
promises of equal access.
The Department heard strong support from
the public for ensuring that people with
disabilities have equal access to the same
services, programs, and activities as people
without disabilities, with equivalent
timeliness, privacy, independence, and ease
of use. Similarly, many commenters from
disability advocacy organizations stated that
the goal of subpart H of this part should be
to provide access to people with disabilities
that is functionally equivalent to the access
experienced by people without disabilities.
Other disability advocates stressed that
technical compliance should not be
prioritized over effective communication.
Section 35.205 will help to achieve these
goals.
The Department believes that this
approach will not have a detrimental impact
on the experience of people with disabilities
who are trying to use web content or mobile
apps. By its own terms, § 35.205 would
require a public entity to demonstrate that
any nonconformance would not affect the
ability of individuals with disabilities to use
the public entity’s web content or mobile app
in a manner that provides substantially
equivalent timeliness, privacy,
independence, and ease of use. As discussed
earlier in the analysis of § 35.205, it is likely
that this will be a high hurdle to clear. If
nonconformance to the technical standard
would affect people with disabilities’ ability
to use the web content or mobile app in this
manner, this provision will not apply, and a
public entity will not have met its obligations
under subpart H of this part. As noted earlier
in this discussion, full conformance to
WCAG 2.1 Level AA is the only definitive
way for a public entity to avoid reliance on
§ 35.205.
This provision would nonetheless provide
public entities who have failed to conform to
229 42
U.S.C. 12101(a)(7).
§ 35.130(b)(1)(ii) and (iii).
230 See
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WCAG 2.1 Level AA with a way to avoid the
prospect of liability for an error that is purely
technical in nature and would not affect
accessibility in practice. This will help to
curtail the specter of potential liability for
every minor technical error, no matter how
insignificant. However, § 35.205 is intended
to apply in rare circumstances and will
require a detailed analysis of the specific
facts surrounding the impact of each alleged
instance of nonconformance. As noted
earlier, the Department does not expect or
intend that § 35.205 will excuse most
nonconformance to the technical standard.
The Department also believes this
approach is preferable to the other
approaches considered because it is likely to
be familiar to people with disabilities and
public entities, and this general consistency
with title II’s regulatory framework
(notwithstanding some necessary differences
from the physical context as noted earlier in
this discussion) has important benefits. The
existing regulatory framework similarly
requires public entities to provide equal
opportunity to participate in or benefit from
services, programs, or activities; 231 equal
opportunity to obtain the same result; 232 full
and equal enjoyment of services, programs,
and activities; 233 and communications with
people with disabilities that are as effective
as communications with others, which
includes consideration of timeliness, privacy,
and independence.234 The 1991 and 2010
ADA Standards also allow designs or
technologies that result in substantially
equivalent accessibility and usability.235
Because of the consistency between § 35.205
and existing law, the Department does not
anticipate that the requirements for bringing
challenges to compliance with subpart H of
this part will be radically different than the
framework that currently exists. Subpart H
adds certainty by establishing that
conformance to WCAG 2.1 Level AA is
generally sufficient for a public entity to meet
its obligations to ensure accessibility of web
content and mobile apps. However, in the
absence of perfect conformance to WCAG 2.1
Level AA, the compliance approach
established by § 35.205 keeps the focus on
equal access, as it is under current law.
Section 35.205 provides a limited degree of
flexibility to public entities without
displacing this part’s guarantee of equal
access for individuals with disabilities or
upsetting the existing legal framework.
Finally, this approach to compliance is
preferable to the other approaches the
Department considered because there was a
notable consensus among public commenters
supporting it. A wide range of commenters,
including disability advocacy organizations,
trade groups representing public
accommodations, accessibility experts, and
State and local government entities
submitted supportive comments. Even some
of the commenters who opposed this
231 Id.
§§ 35.130(b)(1)(ii) and 35.160(b)(1).
§ 35.130(b)(1)(iii).
233 Id. § 35.130(b)(8).
234 Id. § 35.160(a)(1) and (b).
235 28 CFR part 36, appendix D, at 1000 (2022)
(1991 ADA Standards); 36 CFR part 1191, appendix
B, at 329 (2022) (2010 ADA Standards).
232 Id.
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approach noted that it would be helpful if it
was combined with a clear technical
standard, which the Department has done.
Commenters representing a broad spectrum
of interests seem to agree with this approach,
with several commenters proposing very
similar regulatory language. After
considering the relative consensus among
commenters, together with the other factors
discussed herein, the Department has
decided to adopt the approach to defining
compliance that is set forth in § 35.205.
Alternative Approaches Considered
In addition to the approach set forth in
§ 35.205, the Department also considered
compliance approaches that would have
allowed isolated or temporary interruptions
to conformance; required a numerical
percentage of conformance to the technical
standard; or allowed public entities to
demonstrate compliance either by
establishing and following certain specified
accessibility policies and practices or by
showing organizational maturity (i.e., that the
entity has a sufficiently robust accessibility
program to consistently produce accessible
web content and mobile apps). The
Department also considered the approaches
that other States, Federal agencies, and
countries have taken, and other approaches
suggested by commenters. After carefully
weighing all of these alternatives, the
Department believes the compliance
approach adopted in § 35.205 is the most
appropriate framework for determining
whether a State or local government entity
has met its obligations under § 35.200.
Isolated or Temporary Interruptions
As the Department noted in the NPRM,236
the current title II regulation does not
prohibit isolated or temporary interruptions
in service or access to facilities due to
maintenance or repairs.237 In response to the
Department’s question about whether it
should add a similar provision in subpart H
of this part, commenters generally supported
including an analogous provision in subpart
H. They noted that some technical
difficulties are inevitable, especially when
updating web content or mobile apps. Some
commenters elaborated that noncompliance
with the technical standard should be
excused if it is an isolated incident, as in one
page out of many; temporary, as in an issue
with an update that is promptly fixed; or
through other approaches to measuring
compliance addressed in this section. A few
commenters stated that due to the
continuously evolving nature of web content
and mobile apps, there is even more need to
include a provision regarding isolated or
temporary interruptions than there is in the
physical space. Another commenter
suggested that entities should prioritize
emergency-related information by making
sure they have alternative methods of
communication in place in anticipation of
isolated or temporary interruptions that
prevent access to this content.
The Department has considered all of the
comments it received on this issue and,
236 88
FR 51981.
§ 35.133(b).
237 See
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based on those comments and its own
independent assessment, decided not to
separately excuse an entity’s isolated or
temporary noncompliance with § 35.200(b)
due to maintenance or repairs in subpart H
of this part. Rather, as stated in § 35.205, an
entity’s legal responsibility for an isolated or
temporary instance of nonconformance to
WCAG 2.1 Level AA will depend on whether
the isolated or temporary instance of
nonconformance—as with any other
nonconformance—would affect the ability of
individuals with disabilities to use the public
entity’s web content or mobile app in a
substantially equivalent way.
The Department believes it is likely that
the approach set forth in § 35.205 reduces the
need for a provision that would explicitly
allow for instances of isolated or temporary
noncompliance due to maintenance or
repairs, while simultaneously limiting the
negative impact of such a provision on
individuals with disabilities. The Department
believes this is true for two reasons.
First, to the extent isolated or temporary
noncompliance due to maintenance or
repairs occur that affect web content or
mobile apps, it logically follows from the
requirements in subpart H of this part that
these interruptions should generally result in
the same impact on individuals with and
without disabilities after the compliance date
because, in most cases, all users would be
relying on the same content, and so
interruptions to that content would impact
all users. From the compliance date onward,
accessible web content and mobile apps and
the web content and mobile apps used by
people without disabilities should be one
and the same (with the rare exception of
conforming alternate versions provided for in
§ 35.202). Therefore, the Department expects
that isolated or temporary noncompliance
due to maintenance or repairs generally will
affect the ability of people with disabilities
to use web content or mobile apps to the
same extent it will affect the experience of
people without disabilities. For example, if a
website is undergoing overnight maintenance
and so an online form is temporarily
unavailable, the form would already conform
to WCAG 2.1 Level AA, and so there would
be no separate feature or form for individuals
with disabilities that would be affected while
a form for people without disabilities is
functioning. In such a scenario, individuals
with and without disabilities would both be
unable to access web content, such that there
would be no violation of subpart H of this
part.
Thus, the Department believes that a
specific provision regarding isolated or
temporary noncompliance due to
maintenance or repairs is less necessary than
it is for physical access. When there is
maintenance to a feature that provides
physical access, such as a broken elevator,
access for people with disabilities is
particularly impacted. In contrast, when
there is maintenance to web content or
mobile apps, people with and without
disabilities will generally both be denied
access, such that no one is denied access on
the basis of disability.
Second, even to the extent isolated or
temporary noncompliance due to
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maintenance or repairs affects only an
accessibility feature, that noncompliance
may fit the parameters laid out in § 35.205
such that an entity will be deemed to have
complied with its obligations under § 35.200.
Section 35.205 does not provide a blanket
limitation that would excuse all isolated or
temporary noncompliance due to
maintenance or repairs, however. The
provision’s applicability would depend on
the particular circumstances of the
interruption and its impact on people with
disabilities. It is possible that an interruption
that only affects an accessibility feature will
not satisfy the elements of § 35.205 and an
entity will not be deemed in compliance with
§ 35.200. Even one temporary or isolated
instance of nonconformance could affect the
ability of individuals with disabilities to use
the web content with substantially equivalent
ease of use, depending on the circumstances.
As discussed in this section, this will
necessarily be a fact-specific analysis.
In addition to being less necessary than in
the physical access context, the Department
also believes a specific provision regarding
isolated or temporary interruptions due to
maintenance or repairs would have more
detrimental incentives in the digital space by
discouraging public entities from adopting
practices that would reduce or avert the
disruptions caused by maintenance and
repair that affect accessibility. Isolated or
temporary noncompliance due to
maintenance or repairs of features that
provide physical access would be necessary
regardless of what practices public entities
put in place,238 and the repairs and
maintenance to those features often cannot be
done without interrupting access specifically
for individuals with disabilities. For
example, curb ramps will need to be repaved
and elevators will need to be repaired
because physical materials break down. In
contrast, the Department believes that,
despite the dynamic nature of web content
and mobile apps, incorporating accessible
design principles and best practices will
generally enable public entities to anticipate
and avoid many instances of isolated or
temporary noncompliance due to
maintenance or repairs—including many
isolated or temporary instances of
noncompliance that would have such a
significant impact that they would affect
people with disabilities’ ability to use web
content or mobile apps in a substantially
equivalent way. Some of these best practices,
such as regular accessibility testing and
remediation, would likely be needed for
public entities to comply with subpart H of
this part regardless of whether the
Department incorporated a provision
regarding isolated or temporary
interruptions. And practices like testing
content before it is made available will
frequently allow maintenance and repairs
that affect accessibility to occur without
interrupting access, in a way that is often
impossible in physical spaces. The
Department declines to adopt a limitation for
isolated or temporary interruptions due to
238 See 28 CFR part 35, appendix B, at 705 (2022)
(providing that it is impossible to guarantee that
mechanical devices will never fail to operate).
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maintenance or repairs. Such a limitation
may disincentivize public entities from
implementing processes that could prevent
many interruptions from affecting
substantially equivalent access.
Numerical Approach
The Department considered requiring a
certain numerical percentage of conformance
to the technical standard. This percentage
could be a simple numerical calculation
based on the number of instances of
nonconformance across the public entity’s
web content or mobile app, or the percentage
could be calculated by weighting different
instances of nonconformance differently.
Weighted percentages of many different
types, including giving greater weight to
more important content, more frequently
accessed content, or more severe access
barriers, were considered.
When discussing a numerical approach in
the NPRM, the Department noted that the
approach seemed unlikely to ensure
access.239 Even if only a very small
percentage of content does not conform to the
technical standard, that could still block an
individual with a disability from accessing a
service, program, or activity. For example,
even if there was only one instance of
nonconformance, that single error could
prevent an individual with a disability from
submitting an application for public benefits.
Commenters agreed with this concern. As
such, the Department continues to believe
that a percentage-based approach would not
be sufficient to advance the objective of
subpart H of this part to ensure equal access
to State and local government entities’ web
content and mobile apps. Commenters also
agreed with the Department that a
percentage-based standard would be difficult
to implement because percentages would be
challenging to calculate.
Based on the public comments it received
about this framework, which overwhelmingly
agreed with the concerns the Department
raised in the NPRM, the Department
continues to believe that adopting a
percentage-based approach is not feasible.
The Department received a very small
number of comments advocating for this
approach, which were all from State and
local government entities. Even fewer
commenters suggested a framework for
implementing this approach (i.e., the
percentage of conformance that should be
adopted or how that percentage should be
calculated). Based on the very limited
information provided in support of a
percentage-based approach submitted from
commenters, as well as the Department’s
independent assessment, it would be
challenging for the Department to articulate
a sufficient rationale for choosing a particular
percentage of conformance or creating a
specific conformance formula. Nothing
submitted in public comments meaningfully
changed the Department’s previous concerns
about calculating a percentage or specifying
a formula. For all of the reasons discussed,
the Department declines to adopt this
approach.
239 88
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Policy-Based Approach
The Department also considered allowing
a public entity to demonstrate compliance
with subpart H of this part by affirmatively
establishing and following certain robust
policies and practices for accessibility
feedback, testing, and remediation. Under
this approach, the Department would have
specified that nonconformance to WCAG 2.1
Level AA does not constitute noncompliance
with subpart H if a public entity has
established certain policies for testing the
accessibility of its web content and mobile
apps and remediating inaccessible content,
and the entity can demonstrate that it follows
those policies. Potential policies could also
address accessibility training.
As the Department stated in the NPRM,
there were many ways to define the specific
policies that would have been deemed
sufficient under this approach.240 Though
many commenters supported the idea of a
policy-based approach, they suggested a
plethora of policies that should be required
by subpart H of this part. Commenters
disagreed about what type of testing should
be required (i.e., automated, manual, or
both), who should conduct testing, how
frequently testing should be conducted, and
how promptly any nonconformance should
be remediated. As just one example of the
broad spectrum of policies proposed, the
frequency of accessibility testing commenters
suggested ranged from every 30 days to every
five years. A few commenters suggested that
no time frames for testing or remediation
should be specified in subpart H; rather, they
proposed that the nature of sufficient policies
should depend on the covered entity’s
resources, the characteristics of the content,
and the complexity of remediating the
nonconformance. Commenters similarly
disagreed about whether, when, and what
kind of training should be required.
Commenters also suggested requiring many
additional policies and practices, including
mechanisms for providing accessibility
feedback; accessibility statements; third-party
audits; certifications of conformance;
documentation of contracting and
procurement practices; adopting specific
procurement practices; setting certain
budgets or staffing requirements; developing
statewide panels of accessibility experts; and
making accessibility policies, feedback,
reports, or scorecards publicly available.
The Department declines to adopt a policybased approach because, based on the wide
range of policies and practices proposed by
commenters, there is not a sufficient
rationale that would justify adopting any
specific set of accessibility policies in the
generally applicable regulation in subpart H
of this part. Many of the policies commenters
suggested would require the Department to
dictate particular details of all public entities’
day-to-day operations in a way the
Department does not believe is appropriate or
sufficiently justified to do in subpart H.
There was no consensus among commenters
about what policies would be sufficient, and
most commenters did not articulate a specific
basis supporting why their preferred policies
were more appropriate than any other
240 Id.
at 51983–51984.
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policies. In the absence of more specific
rationales or a clearer consensus among
commenters or experts in the field about
what policies would be sufficient, the
Department does not believe it is appropriate
to prescribe what specific accessibility
testing and remediation policies all State and
local government entities must adopt to
comply with their obligations under subpart
H. Based on the information available to the
Department at this time, the Department’s
adoption of any such specific policies would
be unsupported by sufficient evidence that
these policies will ensure accessibility,
which could cause significant harm. It would
allow public entities to comply with their
legal obligations under subpart H based on
policies alone, even though those policies
may fail to provide equal access to online
services, programs, or activities.
The Department also declines to adopt a
policy-based approach that would rely on the
type of general, flexible policies supported by
some commenters, in which the sufficiency
of public entities’ policies would vary
depending on the factual circumstances. The
Department does not believe that such an
approach would give individuals with
disabilities sufficient certainty about what
policies and access they could expect. Such
an approach would also fail to give public
entities sufficient certainty about how they
should meet their legal obligations under
subpart H of this part. If it adopted a flexible
approach suggested by commenters, the
Department might not advance the current
state of the law, because every public entity
could choose any accessibility testing and
remediation policies it believed would be
sufficient to meet its general obligations,
without conforming to the technical standard
or ensuring access. The Department has
heard State and local government entities’
desire for increased clarity about their legal
obligations, and adopting a flexible standard
would not address that need.
Organizational Maturity
Another compliance approach that the
Department considered would have allowed
an entity to demonstrate compliance with
subpart H of this part by showing
organizational maturity (i.e., that the
organization has a sufficiently robust
program for web and mobile app
accessibility). As the Department explained
in the NPRM, while accessibility
conformance testing evaluates the
accessibility of a particular website or mobile
app at a specific point in time, organizational
maturity evaluates whether an entity has
developed the infrastructure needed to
produce accessible web content and mobile
apps consistently.241
Commenters, including disability advocacy
organizations, State and local government
entities, trade groups representing public
accommodations, and accessibility experts
were largely opposed to using an
organizational maturity approach to evaluate
compliance. Notably, one of the companies
241 Id. at 51984; see also W3C, Accessibility
Maturity Model: Group Draft Note, § 1.1: About the
Accessibility Maturity Model (Dec. 15, 2023),
https://www.w3.org/TR/maturity-model/ [https://
perma.cc/UX4X-J4MF].
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that developed an organizational maturity
model the Department discussed in the
NPRM did not believe that an organizational
maturity model was an appropriate way to
assess compliance. Other commenters who
stated that they supported the organizational
maturity approach also seemed to be
endorsing organizational maturity as a best
practice rather than a legal framework,
expressing that it was not an appropriate
substitute for conformance to a technical
standard.
Misunderstandings about what an
organizational maturity framework is and
how the Department was proposing to use it
that were evident in several comments also
demonstrated that the organizational
maturity approach raised in the NPRM was
not sufficiently clear to the public. For
example, at least one commenter conflated
organizational maturity with the approach
the Department considered that would assess
an organization’s policies. Another
commenter seemed to understand the
Department’s consideration of organizational
maturity as only recommending a best
practice, even though the Department was
considering it as legal requirement.
Comments like these indicate that the
organizational maturity approach the
Department considered to measure
compliance would be confusing to the public
if adopted.
Among commenters that supported the
organizational maturity approach, there was
no consensus about how organizational
maturity should be defined or assessed, or
what level of organizational maturity should
be sufficient to demonstrate compliance with
subpart H of this part. There are many ways
to measure organizational maturity, and it is
not clear to the Department that one
organizational maturity model is more
appropriate or more effective than any other.
The Department therefore declines to adopt
an organizational maturity approach in
subpart H because any organizational
maturity model for compliance with web
accessibility that the Department could
develop or incorporate would not have
sufficient justification based on the facts
available to the Department at this time. As
with the policy-based approach discussed
previously in this appendix, if the
Department were to allow public entities to
define their own organizational maturity
approach instead of adopting one specific
model, this would not provide sufficient
predictability or certainty for people with
disabilities or public entities.
The Department also declines to adopt this
approach because commenters did not
provide—and the Department is not aware
of—information or data to suggest that
increased organizational maturity reliably
resulted in increased conformance to WCAG
2.1 Level AA. Like the policy-based approach
discussed previously in this appendix, if the
Department were to adopt an organizational
maturity approach that was not sufficiently
rigorous, public entities would be able to
comply with subpart H of this part without
providing equal access. This would
undermine the purpose of the part.
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Other Federal, International, and State
Approaches
The Department also considered
approaches to measuring compliance that
have been used by other agencies, other
countries or international organizations, and
States, as discussed in the NPRM.242 As to
other Federal agencies’ approaches, the
Department has decided not to adopt the
Access Board’s standards for section 508
compliance for the reasons discussed in
§ 35.200 of the section-by-section analysis
regarding the technical standard. The Section
508 Standards require full conformance to
WCAG 2.0 Level AA,243 but the Department
has determined that requiring perfect
conformance to the technical standard set
forth in subpart H of this part would not be
appropriate for the reasons discussed
elsewhere in this appendix. Perfect
conformance is less appropriate in subpart H
than under section 508 given the wide
variety of public entities covered by title II
of the ADA, many of which have varying
levels of resources, compared to the
relatively limited number of Federal agencies
that must follow section 508. For the reasons
stated in the section-by-section analysis of
§ 35.200 regarding compliance time frame
alternatives, the Department also declines to
adopt the tiered approach that the
Department of Transportation took in its
regulation on accessibility of air carrier
websites, which required certain types of
content to be remediated more quickly.244
The Department has also determined that
none of the international approaches to
evaluating compliance with web accessibility
laws that were discussed in the NPRM are
currently feasible to adopt in the United
States.245 The methodologies used by the
European Union and Canada require
reporting to government agencies. This
would pose counterproductive logistical and
administrative difficulties for regulated
entities and the Department. The Department
believes that the resources public entities
would need to spend on data collection and
reporting would detract from efforts to
increase the accessibility of web content and
mobile apps. Furthermore, reporting to
Federal agencies is not required under other
subparts of the ADA, and it is not clear to the
Department why such reporting would be
more appropriate under subpart H of this part
than under others. New Zealand’s approach,
which requires testing and remediation, is
similar to the policy-based approach already
discussed in this section, and the Department
declines to adopt that approach for the
reasons stated in that discussion. The
approach taken in the United Kingdom,
where a government agency audits websites
and mobile apps, sends a report to the public
entity, and requires the entity to fix
accessibility issues, is similar to one method
the Department currently uses to enforce title
II of the ADA, including title II web and
mobile app accessibility.246 Though the
242 88
FR 51980–51981.
243 36 CFR 1194.1; id. at part 1194, appendix A,
section E205.4.
244 See 14 CFR 382.43.
245 88 FR 51980.
246 See § 35.172(b) and (c) (describing the process
for compliance reviews). As noted, however, the
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Department will continue to investigate
complaints and enforce the ADA, given
constraints on its resources and the large
number of entities within its purview to
investigate, the Department is unable to
guarantee that it will conduct a specific
amount of enforcement under subpart H of
this part on a particular schedule.
The Department has considered many
States’ approaches to assessing compliance
with their web accessibility laws 247 and
declines to adopt these laws at the Federal
level. State laws like those in Florida,
Illinois, and Massachusetts, which do not
specify how compliance will be measured or
how entities can demonstrate compliance,
are essentially requiring 100 percent
compliance with a technical standard. This
approach is not feasible for the reasons
discussed earlier in this section. In addition,
this approach is not feasible because of the
large number and wide variety of public
entities covered by the ADA, as compared
with the relatively limited number of State
agencies in a given State. Laws like
California’s, which require entities covered
by California’s law to certify or post evidence
of compliance, would impose administrative
burdens on public entities similar to those
imposed by the international approaches
discussed in the preceding paragraph. Some
State agencies, including in California,
Minnesota, and Texas, have developed
assessment checklists, trainings, testing tools,
and other resources. The Department will
issue a small entity compliance guide,248
which should help public entities better
understand their obligations. As discussed
elsewhere in this appendix, the Department
may also provide further guidance about best
practices for a public entity to meet its
obligations under subpart H of this part.
However, such resources are not substitutes
for clear and achievable regulatory
requirements. Some commenters stated that
regulations should not be combined with best
practices or guidance, and further stated that
testing methodologies are more appropriate
for guidance. The Department agrees and
believes State and local government entities
are best suited to determine how they will
comply with the technical standard,
depending on their needs and resources.
The Department also declines to adopt a
model like the one used in Texas, which
requires State agencies to, among other steps,
conduct tests with one or more accessibility
validation tools, establish an accessibility
policy that includes criteria for compliance
monitoring and a plan for remediation of
noncompliant items, and establish goals and
progress measurements for accessibility.249
This approach is one way States and other
public entities may choose to ensure that
they comply with subpart H of this part.
However, as noted in the discussion of the
policy-based approach, the Department is
unable to calibrate requirements that provide
Department is unable to guarantee that it will
conduct a specific amount of enforcement under
subpart H of this part on a particular schedule.
247 88 FR 51980–51981.
248 See Public Law 104–121, sec. 212, 110 Stat. at
858.
249 1 Tex. Admin. Code secs. 206.50, 213.21 (West
2023).
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31393
sufficient predictability and certainty for
every public entity while maintaining
sufficient flexibility. The Department
declines to adopt an approach like Texas’s
for the same reasons it declined to adopt a
policy-based approach.
Commenters suggested a few additional
State and international approaches to
compliance that were not discussed in the
NPRM. Though the Department reviewed and
considered each of these approaches, it finds
that they are not appropriate to adopt in
subpart H of this part. First, Washington’s
accessibility policy 250 and associated
standard 251 require agencies to develop
policies and processes to ensure compliance
with the technical standard, including
implementing and maintaining accessibility
plans. As with Texas’s law and a more
general policy-based approach, which are
both discussed elsewhere in this appendix,
Washington’s approach would not provide
sufficient specificity and certainty to ensure
conformance to a technical standard in the
context of the title II regulatory framework
that applies to a wide range of public entities;
however, this is one approach to achieving
conformance that entities could consider.
Additionally, one commenter suggested
that the Department look to the Accessibility
for Ontarians with Disabilities Act 252 and
consider taking some of the steps to ensure
compliance that the commenter states
Ontario has taken. Specifically, the
commenter suggested requiring training on
how to create accessible content and creating
an advisory council that makes suggestions
on how to increase public education about
the law’s requirements. Though the
Department will consider providing
additional guidance to the public about how
to comply with subpart H of this part, it
declines to require State and local
government entities to provide training to
their employees. This would be part of a
policy-based compliance approach, which
the Department has decided not to adopt for
the reasons discussed. However, the
Department notes that public entities will
likely find that some training is necessary
and helpful to achieve compliance. The
Department also declines to require State and
local government entities to adopt
accessibility advisory councils because, like
training, this would be part of a policy-based
compliance approach. However, public
entities remain free to do so if they choose.
Finally, a coalition of State Attorneys
General described how their States’ agencies
currently determine whether State websites
and other technology are accessible, and
suggested that the Department incorporate
250 Wash. Tech. Sols., Policy 188—Accessibility,
https://watech.wa.gov/sites/default/files/2023-09/
188_Accessibility_2019_
AS%2520v3%2520Approved.docx. A Perma
archive link was unavailable for this citation.
251 Wash. Tech. Sols., Standard 188.10—
Minimum Accessibility Standard, https://
watech.wa.gov/sites/default/files/2023-09/188.10_
Min_Std_2019_AS_Approved_03102020_1.docx. A
Perma archive link was unavailable for this citation.
252 Accessibility for Ontarians With Disabilities
Act, 2005, S.O. 2005, c. 11 (Can.), https://
www.ontario.ca/laws/statute/05a11 [https://
perma.cc/V26B-2NSG].
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similar practices into its compliance
framework. Some of these States have
designated agencies that conduct automated
testing, manual testing, or both, while others
offer online tools or require agencies to
conduct their own manual testing. Though
some of these approaches come from States
not already discussed, including Hawaii,
New Jersey, and New York, the approaches
commenters from these States discussed are
similar to other approaches the Department
has considered. These States have essentially
adopted a policy-based approach. As noted
elsewhere in this appendix, the Department
believes that it is more appropriate for States
and other regulated entities to develop their
own policies to ensure compliance than it
would be for the Department to establish one
set of compliance policies for all public
entities. Several State agencies conduct
regular audits, but as noted previously in this
appendix, the Department lacks the capacity
to guarantee it will conduct a specific
number of enforcement actions under subpart
H of this part on a particular schedule. And
as an agency whose primary responsibility is
law enforcement, the Department is not
currently equipped to develop and distribute
accessibility testing software like some States
have done. State and local government
entities may wish to consider adopting
practices similar to the ones commenters
described even though subpart H does not
require them to do so.
Other Approaches Suggested by Commenters
Commenters also suggested many other
approaches the Department should take to
assess and ensure compliance with subpart H
of this part. The Department has considered
all of the commenters’ suggestions and
declines to adopt them at this time.
First, commenters suggested that public
entities should be permitted to provide what
they called an ‘‘accommodation’’ or an
‘‘equally effective alternative method of
access’’ when web content or mobile apps are
not accessible. Under the approach these
commenters envisioned, people with
disabilities would need to pursue an
interactive process where they discussed
their access needs with the public entity and
the public entity would determine how those
needs would be met. The Department
believes that adopting this approach would
undermine a core premise of subpart H of
this part, which is that web content and
mobile apps will generally be accessible by
default. That is, people with disabilities
typically will not need to make a request to
gain access to services, programs, or activities
offered online, nor will they typically need
to receive information in a different format.
If the Department were to adopt the
commenters’ suggestion, the Department
believes that subpart H would not address
the gaps in accessibility highlighted in the
need for the rulemaking discussed in section
III.D.4 of the preamble to the final rule, as the
current state of the law already requires
public entities to provide reasonable
modifications and effective communication
to people with disabilities.253 Under title II,
individuals with disabilities cannot be, by
reason of such disability, excluded from
participation in or denied the benefits of the
services, programs, or activities offered by
State and local government entities,
including those offered via the web and
mobile apps.254 One of the goals of the ADA
also includes reducing segregation.255
Accordingly, it is important for individuals
with disabilities to have access to the same
platforms as their neighbors and friends at
the same time, and the commenters’ proposal
would not achieve that objective.
Second, commenters suggested a process,
which is sometimes referred to as ‘‘notice
and cure,’’ by which a person with a
disability who cannot access web content or
a mobile app would need to notify the public
entity that their web content or mobile app
was not accessible and give the public entity
a certain period of time to remediate the
inaccessibility before the entity could be
considered out of compliance with subpart H
of this part. The Department is not adopting
this framework for reasons similar to those
discussed in relation to the ‘‘equally effective
alternative’’ approach rejected in the
previous paragraph. With subpart H, the
Department is ensuring that people with
disabilities generally will not have to request
access to public entities’ web content and
content in mobile apps, nor will they
typically need to wait to obtain that access.
Given the Department’s longstanding
position on the accessibility of online
content, discussed in section III.B and C of
the preamble to the final rule, public entities
should already be on notice of their
obligations. If they are not, the final rule
unquestionably puts them on notice.
Third, commenters suggested a flexible
approach to compliance that would only
require substantial compliance, good faith
effort, reasonable efforts, or some similar
concept that would allow the meaning of
compliance to vary too widely depending on
the circumstances, and without a clear
connection to whether those efforts result in
actual improvements to accessibility for
people with disabilities. The Department
declines to adopt this approach because it
does not believe such an approach would
provide sufficient certainty or predictability
to State and local government entities or
individuals with disabilities. Such an
approach would undermine the benefits of
adopting a technical standard.
The Department has already built a series
of mechanisms into subpart H of this part
that are designed to make it feasible for
public entities to comply, including the
delayed compliance dates in § 35.200(b), the
exceptions in § 35.201, the conforming
alternate version provision in § 35.202, the
fundamental alteration or undue burdens
limitations in § 35.204, and the compliance
approach discussed here. In doing so, the
Department has allowed for several
departures from the technical standard, but
only under clearly defined and uniform
criteria, well-established principles in the
ADA or WCAG, or circumstances that would
not affect substantially equivalent access.
Many of the approaches that commenters
254 42
253 Section
35.130(b)(7) and 35.160.
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255 42 U.S.C. 12101(a)(2) and (5).
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proposed are not similarly cabined. Those
approaches would often allow public
entities’ mere attempts to achieve compliance
to substitute for access. The Department
declines to adopt more flexibility than it
already has because it finds that doing so
would come at too great a cost to accessibility
and to the clarity of the obligations in subpart
H.
Fourth, several commenters proposed a
multi-factor or tiered approach to
compliance. For example, one commenter
suggested a three-tiered system where after
one failed accessibility test the public entity
would investigate the problem, after multiple
instances of nonconformance they would
enter into a voluntary compliance agreement
with the Department, and if there were
widespread inaccessibility, the Department
would issue a finding of noncompliance and
impose a deadline for remediation. Similarly,
another commenter proposed that
enforcement occur only when two of three
criteria are met: errors are inherent to the
content itself, errors are high impact or
widely prevalent, and the entity shows no
evidence of measurable institutional
development regarding accessibility policy or
practice within a designated time frame. The
Department believes that these and other
similar multi-factor approaches to
compliance would be too complex for public
entities to understand and for the Department
to administer. It would also be extremely
challenging for the Department to define the
parameters for such an approach with an
appropriate level of precision and a
sufficiently well-reasoned justification.
Finally, many commenters proposed
approaches to compliance that would expand
the Department’s role. Commenters suggested
that the Department grant exceptions to the
requirements in subpart H of this part on a
case-by-case basis; specify escalating
penalties; conduct accessibility audits,
testing, or monitoring; provide grant funding;
develop accessibility advisory councils;
provide accessibility testing tools; specify
acceptable accessibility testing software,
resources, or methodologies; provide a list of
accessibility contractors; and provide
guidance, technical assistance, or training.
With the exception of guidance and
continuing to conduct accessibility testing as
part of compliance reviews or other
enforcement activities, the Department is not
currently in a position to take any of the
actions commenters requested. As described
in this section, the Department has limited
enforcement resources. It is not able to
review requests for exceptions on a case-bycase basis, nor is it able to conduct
accessibility testing or monitoring outside of
compliance reviews, settlement agreements,
or consent decrees. Civil penalties for
noncompliance with the ADA are set by
statute and are not permitted under title II.256
Though the Department sometimes seeks
monetary relief for individuals aggrieved
under title II in its enforcement actions, the
appropriate amount of relief is determined on
a case-by-case basis and would be
256 See 42 U.S.C. 12188(b)(2)(C) (allowing civil
penalties under title III); see also 28 CFR
36.504(a)(3) (updating the civil penalty amounts).
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challenging to establish in a generally
applicable rule. The Department does not
currently operate a grant program to assist
public entities in complying with the ADA,
and, based on the availability and allocation
of the Department’s current resources, it does
not believe that administering advisory
committees would be the best use of its
resources. The Department also lacks the
resources and technical expertise to develop
and distribute accessibility testing software.
The Department will issue a small entity
compliance guide 257 and will continue to
consider what additional guidance or
training it can provide that will assist public
entities in complying with their obligations.
However, the Department believes that so
long as public entities satisfy the
requirements of subpart H of this part, it is
appropriate to allow public entities flexibility
to select accessibility tools and contractors
that meet their individualized needs. Any
specific list of tools or contractors that the
Department could provide is unlikely to be
helpful given the rapid pace at which
software and contractor availability changes.
Public entities may find it useful to consult
other publicly available resources that can
assist in selecting accessibility evaluation
tools and experts.258 Resources for training
are also already available.259 State and local
government entities do not need to wait for
the Department’s guidance before consulting
with technical experts and using resources
that already exist.
Public Comments on Other Issues in
Response to the NPRM
The Department received comments on a
variety of other issues in response to the
NPRM. The Department responds to the
remaining issues not already addressed in
this section-by-section analysis.
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Scope
The Department received some comments
that suggested that the Department should
take actions outside the scope of the
rulemaking to improve accessibility for
people with disabilities. For example, the
Department received comments suggesting
that the rulemaking should: apply to all
companies or entities covered under title III
of the ADA; prohibit public entities from
making information or communication
available only via internet means; revise
other portions of the title II regulation like
subpart B of this part (general requirements);
require accessibility of all documents behind
any paywall regardless of whether title II
applies; and address concerns about how the
increased use of web and mobile app
technologies may affect individuals with
electromagnetic sensitivity. While the
Department recognizes that these are
important accessibility issues to people with
disabilities across the country, they are
257 See
Public Law 104–121, sec. 212, 110 Stat. at
858.
258 See, e.g., W3C, Evaluating Web Accessibility
Overview, https://www.w3.org/WAI/test-evaluate/
[https://perma.cc/6RDS-X6AR] (Aug. 1, 2023).
259 See, e.g., W3C, Digital Accessibility
Foundations Free Online Course, https://
www.w3.org/WAI/courses/foundations-course/
[https://perma.cc/KU9L-NU4H] (Oct. 24, 2023).
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outside of the scope of subpart H of this part,
which focuses on web and mobile app
accessibility under title II. Accordingly, these
issues are not addressed in detail in subpart
H.
The Department also received comments
recommending that this part cover a broader
range of technology in addition to web
content and mobile apps, including
technologies that may be developed in the
future. The Department declines to broaden
this part in this way. If, for example, the
Department were to broaden the scope of the
rulemaking to cover an open-ended range of
technology, it would undermine one of the
major goals of the rulemaking, which is to
adopt a technical standard State and local
government entities must adhere to and
clearly specify which content must comply
with that standard. In addition, the
Department does not currently have
sufficient information about how technology
will develop in the future, and how WCAG
2.1 Level AA will (or will not) apply to that
technology, to enable the Department to
broaden the part to cover all future
technological developments. Also, the
Department has a long history of engaging
with the public and stakeholders about web
and mobile app accessibility and determined
that it was appropriate to prioritize regulating
in that area. However, State and local
government entities have existing obligations
under title II of the ADA with respect to
services, programs, and activities offered
through other types of technology.260
Another commenter suggested that the
rulemaking should address operating
systems. The commenter also suggested
clarifying that public entities are required to
ensure web content and mobile apps are
accessible, usable, and interoperable with
assistive technology. The Department
understands this commenter to be requesting
that the Department establish additional
technical standards in this part beyond
WCAG 2.1 Level AA, such as technical
standards related to software. As discussed in
this section and the section-by-section
analysis of § 35.104, subpart H of this part
focuses on web content and mobile apps. The
Department also clarified in the section-bysection analysis of § 35.200 why it believes
WCAG 2.1 Level AA is the appropriate
technical standard for subpart H.
Coordination With Other Federal and State
Entities
One commenter asked if the Department
has coordinated with State governments and
other Federal agencies that are working to
address web and mobile app accessibility to
ensure there is consistency with other
government accessibility requirements.
Subpart H of this part is being promulgated
under part A of title II of the ADA. The
Department’s analysis and equities may differ
from State and local government entities that
may also interpret and enforce other laws
addressing the rights of people with
disabilities. However, through the NPRM
process, the Department received feedback
from the public, including public entities,
through written comments and listening
260 See
PO 00000
§§ 35.130(b)(1)(ii) and (b)(7) and 35.160.
Frm 00077
Fmt 4701
Sfmt 4700
31395
sessions. In addition, the final rule and
associated NPRM were circulated to other
Federal Government agencies as part of the
Executive Order 12866 review process. In
addition, under Executive Order 12250, the
Department also coordinates with other
Federal agencies to ensure the consistent and
effective implementation of section 504 of
the Rehabilitation Act, which prohibits
discrimination on the basis of disability, and
to ensure that such implementation is
consistent with title II of the ADA across the
Federal Government.261 Accordingly, the
Department will continue to work with other
Federal agencies to ensure consistency with
its interpretations in the final rule, in
accordance with Executive Order 12250.
Impact on State Law
Some commenters discussed how this part
might impact State law, including one
comment that asked how a public entity
should proceed if it is subject to a State law
that provides greater protections than this
part. This part will preempt State laws
affecting entities subject to title II of the ADA
only to the extent that those laws provide
less protection for the rights of individuals
with disabilities.262 This part does not
invalidate or limit the remedies, rights, and
procedures of any State laws that provide
greater or equal protection for the rights of
individuals with disabilities. Moreover, the
Department’s provision on equivalent
facilitation at § 35.203 provides that nothing
prevents a public entity from using designs,
methods, or techniques as alternatives to
those prescribed in subpart H of this part,
provided that such alternatives result in
substantially equivalent or greater
accessibility and usability. Accordingly, for
example, if a State law requires public
entities in that State to conform to WCAG
2.2, nothing in subpart H would prevent a
public entity from conforming with that
standard.
Preexisting Technology
One public entity said that the Department
should permit public entities to continue to
use certain older technologies, because some
public entities have systems that were
developed several years ago with
technologies that may not be able to comply
with this part. The commenter also added
that if a public entity is aware of the
technical difficulties or need for remediation
in relation to recent maintenance, updates, or
repairs, more leniency should be given to the
261 Memorandum for Federal Agency Civil Rights
Directors and General Counsels, from Kristen
Clarke, Assistant Attorney General, Civil Rights
Division, U.S. Department of Justice, Re: Executive
Order 12250 Enforcement and Coordination
Updates (Jan. 20, 2023), https://www.justice.gov/
media/1284016/dl?inline [https://perma.cc/AL6QQC57]; Memorandum for Federal Agency Civil
Rights Directors and General Counsels, from John
M. Gore, Acting Assistant Attorney General, Civil
Rights Division, U.S. Department of Justice, Re:
Coordination of Federal Agencies’ Implementation
of Title II of the Americans with Disabilities Act and
Section 504 of the Rehabilitation Act, Civil Rights
Division, U.S. Department of Justice (Apr. 24, 2018),
https://www.justice.gov/crt/page/file/1060321/
download [https://perma.cc/9Q98-BVU2].
262 See 42 U.S.C. 12201.
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public entity with respect to the compliance
time frame.
The Department believes it has balanced
the need to establish a workable standard for
public entities with the need to ensure
accessibility for people with disabilities in
many ways, such as by establishing delayed
compliance dates to give public entities time
to ensure their technologies can comply with
subpart H of this part. In addition, subpart H
provides some exceptions addressing older
content, such as the exceptions for archived
web content, preexisting conventional
electronic documents, and preexisting social
media posts. The Department believes that
these exceptions will assist covered entities
in using their resources more efficiently.
Also, the Department notes that public
entities will be able to rely on the
fundamental alteration or undue burdens and
limitations in subpart H where they can
satisfy the requirements of those provisions.
Finally, the Department discussed isolated or
temporary interruptions in § 35.205 of the
VerDate Sep<11>2014
17:05 Apr 23, 2024
Jkt 262001
section-by-section analysis, where it
explained its decision not to separately
excuse an entity’s isolated or temporary
noncompliance with § 35.200 due to
maintenance or repairs.
Overlays
Several comments expressed concerns
about public entities using accessibility
overlays and automated checkers.263 Subpart
H of this part sets forth a technical standard
for public entities’ web content and mobile
apps. Subpart H does not address the internal
policies or procedures that public entities
might implement to conform to the technical
standard under subpart H.
263 See W3C, Overlay Capabilities Inventory: Draft
Community Group Report (Feb. 12, 2024), https://
a11yedge.github.io/capabilities/ [https://perma.cc/
2762-VJEV]; see also W3C, Draft Web Accessibility
Evaluation Tools List, https://www.w3.org/WAI/ER/
tools/ [https://perma.cc/Q4ME-Q3VW] (last visited
Feb. 12, 2024).
PO 00000
Frm 00078
Fmt 4701
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ADA Coordinator
At least one commenter suggested that the
Department should require public entities to
hire an ADA Coordinator devoted
specifically to web accessibility, similar to
the requirement in the existing title II
regulation at § 35.107(a). The Department
believes it is important for public entities to
have flexibility in deciding how to internally
oversee their compliance with subpart H of
this part. However, nothing in subpart H
would prohibit a public entity from
appointing an ADA coordinator for web
content and mobile apps if the public entity
believes taking such an action would help it
comply with subpart H.
Dated: April 8, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024–07758 Filed 4–23–24; 8:45 am]
BILLING CODE 4410–13–P
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[Federal Register Volume 89, Number 80 (Wednesday, April 24, 2024)]
[Rules and Regulations]
[Pages 31320-31396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07758]
[[Page 31319]]
Vol. 89
Wednesday,
No. 80
April 24, 2024
Part II
Department of Justice
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28 CFR Part 35
Nondiscrimination on the Basis of Disability; Accessibility of Web
Information and Services of State and Local Government Entities; Final
Rule
Federal Register / Vol. 89, No. 80 / Wednesday, April 24, 2024 /
Rules and Regulations
[[Page 31320]]
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DEPARTMENT OF JUSTICE
28 CFR Part 35
[CRT Docket No. 144; AG Order No. 5919-2024]
RIN 1190-AA79
Nondiscrimination on the Basis of Disability; Accessibility of
Web Information and Services of State and Local Government Entities
AGENCY: Civil Rights Division, Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice (``Department'') issues its final
rule revising the regulation implementing title II of the Americans
with Disabilities Act (``ADA'') to establish specific requirements,
including the adoption of specific technical standards, for making
accessible the services, programs, and activities offered by State and
local government entities to the public through the web and mobile
applications (``apps'').
DATES:
Effective date: This rule is effective June 24, 2024.
Compliance dates: A public entity, other than a special district
government, with a total population of 50,000 or more shall begin
complying with this rule April 24, 2026. A public entity with a total
population of less than 50,000 or any public entity that is a special
district government shall begin complying with this rule April 26,
2027.
Incorporation by reference: The incorporation by reference of
certain material listed in the rule is approved by the Director of the
Federal Register as of June 24, 2024.
FOR FURTHER INFORMATION CONTACT: Rebecca B. Bond, Chief, Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, at
(202) 307-0663 (voice or TTY). This is not a toll-free number.
Information may also be obtained from the Department's toll-free ADA
Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY). You
may obtain copies of this rule in an alternative format by calling the
ADA Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY).
This rule is also available on www.ada.gov.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of and Need for the Rule
Title II of the ADA provides that no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or denied the benefits of the services, programs, or
activities of a public entity.\1\ The Department has consistently made
clear that the title II nondiscrimination requirements apply to all
services, programs, and activities of public entities (also referred to
as ``government services''), including those provided via the web. It
also includes those provided via mobile apps.\2\ In this rule, the
Department establishes technical standards for web content and mobile
app accessibility to give public entities greater clarity in exactly
how to meet their ADA obligations and to help ensure equal access to
government services for individuals with disabilities.
---------------------------------------------------------------------------
\1\ 42 U.S.C. 12132. The Department uses the phrases ``State and
local government entities'' and ``public entities'' interchangeably
throughout this rule to refer to ``public entit[ies]'' as defined in
42 U.S.C. 12131(1) that are covered under part A of title II of the
ADA.
\2\ As discussed in the proposed definition in this rule, mobile
apps are software applications that are downloaded and designed to
run on mobile devices, such as smartphones and tablets.
---------------------------------------------------------------------------
Public entities are increasingly providing the public access to
government services through their web content and mobile apps. For
example, government websites and mobile apps often allow the public to
obtain information or correspond with local officials without having to
wait in line or be placed on hold. Members of the public can also pay
fines, apply for State benefits, renew State-issued identification,
register to vote, file taxes, obtain up-to-date health and safety
resources, request copies of vital records, access mass transit
schedules, and complete numerous other tasks via government websites.
Individuals can perform many of these same functions on mobile apps.
Often, however, State and local government entities' web- and mobile
app-based services are not designed or built accessibly and as a result
are not equally available to individuals with disabilities. Just as
stairs can exclude people who use wheelchairs from accessing government
buildings, inaccessible web content and mobile apps can exclude people
with a range of disabilities from accessing government services.
It is critical to ensure that individuals with disabilities can
access important web content and mobile apps quickly, easily,
independently, privately, and equally. Accessible web content and
mobile apps help to make this possible. By allowing individuals with
disabilities to engage more fully with their governments, accessible
web content and mobile apps also promote the equal enjoyment of
fundamental constitutional rights, such as rights with respect to
speech, assembly, association, petitioning, voting, and due process of
law.
Accordingly, the Department is establishing technical requirements
to provide concrete standards to public entities on how to fulfill
their obligations under title II to provide equal access to all of
their services, programs, and activities that are provided via the web
and mobile apps. The Department believes, and public comments have
reinforced, that the requirements described in this rule are necessary
to assure ``equality of opportunity, full participation, independent
living, and economic self-sufficiency'' for individuals with
disabilities, as set forth in the ADA.\3\
---------------------------------------------------------------------------
\3\ 42 U.S.C. 12101(a)(7).
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B. Legal Authority
On July 26, 1990, President George H.W. Bush signed into law the
ADA, a comprehensive civil rights law prohibiting discrimination on the
basis of disability.\4\ Title II of the ADA, which this rule addresses,
applies to State and local government entities. Title II extends the
prohibition on discrimination established by section 504 of the
Rehabilitation Act of 1973 (``Rehabilitation Act''), as amended, 29
U.S.C. 794 (``section 504''), to all activities of State and local
government entities regardless of whether the entities receive Federal
financial assistance.\5\ Part A of title II protects qualified
individuals with disabilities from discrimination on the basis of
disability in services, programs, and activities of State and local
government entities. Section 204(a) of the ADA directs the Attorney
General to issue regulations implementing part A of title II but
exempts matters within the scope of the authority of the Secretary of
Transportation under section 223, 229, or 244.\6\
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\4\ 42 U.S.C. 12101-12213.
\5\ 42 U.S.C. 12131-12165.
\6\ See 42 U.S.C. 12134. Section 229(a) and section 244 of the
ADA direct the Secretary of Transportation to issue regulations
implementing part B of title II, except for section 223. See 42
U.S.C. 12149(a), 12164.
---------------------------------------------------------------------------
The Department is the only Federal agency with authority to issue
regulations under title II, part A, of the ADA regarding the
accessibility of State and local government entities' web content and
mobile apps. In addition, under Executive Order 12250, the Department
is responsible for ensuring consistency and effectiveness in the
implementation of section 504 across the Federal Government (aside from
provisions relating to equal
[[Page 31321]]
employment).\7\ Given Congress's intent for parity between section 504
and title II of the ADA, the Department must also ensure the
consistency of any related agency interpretations of those
provisions.\8\ The Department, therefore, also has a lead role in
coordinating interpretations of section 504 (again, aside from
provisions relating to equal employment), including its application to
web content and mobile apps, across the Federal Government.
---------------------------------------------------------------------------
\7\ E.O. 12250 secs. 1-201(c), 1-503 (Nov. 2, 1980), 45 FR
72995, 72995, 72997 (Nov. 4, 1980).
\8\ U.S. Dep't of Just., Disability Rights Section: Federal
Coordination of Section 504 and Title II of the ADA, C.R. Div. (Oct.
12, 2021), https://www.justice.gov/crt/disability-rights-
section#:~:text=Federal%20Coordination%20of%20Section%20504,required%
20by%20Executive%20Order%2012250 [https://perma.cc/S5JX-WD82] (see
Civil Rights Division (CRT) Memorandum on Federal Agencies'
Implementation of Title II of the Americans with Disabilities Act
and Section 504 of the Rehabilitation Act under the heading
``Section 504 and ADA Federal Coordination Resources'').
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C. Organization of This Rule
Appendix D to 28 CFR part 35 provides a section-by-section analysis
of the Department's changes to the title II regulation and the
reasoning behind those changes, in addition to responses to public
comments received on the notice of proposed rulemaking (``NPRM'').\9\
The section of appendix D entitled ``Public Comments on Other Issues in
Response to NPRM'' discusses public comments on several issues that are
not otherwise specifically addressed in the section-by-section
analysis. The Final Regulatory Impact Analysis (``FRIA'') and Final
Regulatory Flexibility Analysis (``FRFA'') accompanying this rulemaking
both contain further responses to comments relating to those analyses.
---------------------------------------------------------------------------
\9\ 88 FR 51948 (Aug. 4, 2023).
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D. Overview of Key Provisions of This Final Rule
In this final rule, the Department adds a new subpart H to the
title II ADA regulation, 28 CFR part 35, that sets forth technical
requirements for ensuring that web content that State and local
government entities provide or make available, directly or through
contractual, licensing, or other arrangements, is readily accessible to
and usable by individuals with disabilities. Web content is defined by
Sec. 35.104 to mean the information and sensory experience to be
communicated to the user by means of a user agent (e.g., a web
browser), including code or markup that defines the content's
structure, presentation, and interactions. This includes text, images,
sounds, videos, controls, animations, and conventional electronic
documents. Subpart H also sets forth technical requirements for
ensuring the accessibility of mobile apps that a public entity provides
or makes available, directly or through contractual, licensing, or
other arrangements.
The Department adopts an internationally recognized accessibility
standard for web access, the Web Content Accessibility Guidelines
(``WCAG'') 2.1 \10\ published in June 2018, https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F,\11\ as the
technical standard for web content and mobile app accessibility under
title II of the ADA. As will be explained in more detail, the
Department is requiring that public entities comply with the WCAG 2.1
Level AA success criteria and conformance requirements.\12\ The
applicable technical standard will be referred to hereinafter as ``WCAG
2.1.'' The applicable conformance level will be referred to hereinafter
as ``Level AA.'' To the extent there are differences between WCAG 2.1
Level AA and the standards articulated in this rule, the standards
articulated in this rule prevail. As noted below, WCAG 2.1 Level AA is
not restated in full in this final rule but is instead incorporated by
reference.
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\10\ Copyright(copyright) 2023 W3C[supreg]. This document
includes material copied from or derived from https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. As
explained elsewhere, WCAG 2.1 was updated in 2023, but this rule
requires conformance to the 2018 version.
\11\ The Permalink used for WCAG 2.1 throughout this rule shows
the 2018 version of WCAG 2.1 as it appeared on W3C's website at the
time the NPRM was published.
\12\ As explained in more detail under ``WCAG Conformance
Level'' in the section-by-section analysis of Sec. 35.200 in
appendix D, conformance to Level AA requires satisfying the success
criteria labeled Level A as well as those labeled Level AA, in
addition to satisfying the relevant conformance requirements.
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In recognition of the challenges that small public entities may
face with respect to resources for implementing the new requirements,
the Department has staggered the compliance dates for public entities
according to their total population.\13\ This final rule in Sec.
35.200(b)(1) specifies that a public entity, other than a special
district government,\14\ with a total population of 50,000 or more must
ensure that web content and mobile apps that the public entity provides
or makes available, directly or through contractual, licensing, or
other arrangements, comply with WCAG 2.1 Level AA success criteria and
conformance requirements beginning two years after the publication of
this final rule. Under Sec. 35.200(b)(2), a public entity with a total
population of less than 50,000 must comply with these requirements
beginning three years after the publication of this final rule. In
addition, under Sec. 35.200(b)(2), all special district governments
have three years following the publication of this final rule before
they must begin complying with these requirements. After the compliance
date, ongoing compliance with this final rule is required.
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\13\ Total population, defined in Sec. 35.104 and explained
further in the section-by-section analysis, is generally determined
by reference to the population estimate for a public entity (or the
population estimate for a public entity of which an entity is an
instrumentality) as calculated by the United States Census Bureau.
\14\ See U.S. Census Bureau, Special District Governments,
https://www.census.gov/glossary/?term=Special+district+governments
[https://perma.cc/8V43-KKL9]. ``Special district government'' is
also defined in this rule at Sec. 35.104.
Table 1--Compliance Dates for WCAG 2.1 Level AA
------------------------------------------------------------------------
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 has set forth exceptions from
compliance with the technical standard required under Sec. 35.200 for
certain types of content, which are described in detail below in the
section-by-section analysis. If the content falls under an exception,
that means that the public entity generally does not need to make the
content conform to WCAG 2.1 Level AA.
As will be explained more fully, the Department has set forth five
specific exceptions from compliance with the technical standard
required under Sec. 35.200: (1) archived web content; (2)
[[Page 31322]]
preexisting conventional electronic documents, unless such documents
are currently used to apply for, gain access to, or participate in the
public entity's services, programs, or activities; (3) content posted
by a third party, unless the third party is posting due to contractual,
licensing, or other arrangements with the public entity; (4)
conventional electronic documents that are about a specific individual,
their property, or their account and that are password-protected or
otherwise secured; and (5) preexisting social media posts. As discussed
further, if one of these exceptions applies, then the public entity's
web content or content in mobile apps that is covered by an exception
would not need to comply with the rule's technical standard. The
Department has developed these exceptions because it believes that
requiring public entities to make the particular content described in
these categories accessible under all circumstances could be too
burdensome at this time. In addition, requiring accessibility in all
circumstances may divert important resources from making accessible key
web content and mobile apps that public entities provide or make
available. However, upon request from a specific individual, a public
entity may have to provide the web content or content in mobile apps to
that individual in an accessible format to comply with the entity's
existing obligations under other regulatory provisions implementing
title II of the ADA. For example, archived town meeting minutes from
2011 might be covered by an exception from the requirement to conform
to WCAG 2.1 Level AA. But if a person with low vision, for example,
requests an accessible version, then the town would still need to
address the person's request under its existing effective communication
obligations in 28 CFR 35.160. The way that the town does this could
vary based on the facts. For example, in some circumstances, providing
a large-print version of the minutes might satisfy the town's
obligations, and in other circumstances it might need to provide an
electronic version that conforms to the aspects of WCAG 2.1 Level AA
relevant to the person's particular access needs.
The final rule contains a series of other mechanisms that are
designed to make it feasible for public entities to comply with the
rule. The final rule makes clear in Sec. 35.202 the limited
circumstances in which ``conforming alternate versions'' of web
content, as defined in WCAG 2.1, can be used as a means of achieving
accessibility. As WCAG 2.1 defines it, a conforming alternate version
is a separate version of web content that is accessible, up to date,
contains the same information and functionality as the inaccessible web
content, and can be reached in particular ways, such as through a
conforming page or an accessibility-supported mechanism. However, the
Department is concerned that WCAG 2.1 could be interpreted to permit a
segregated approach and a worse experience for individuals with
disabilities. The Department also understands that, in practice, it can
be difficult to maintain conforming alternate versions because it is
often challenging to keep two different versions of web content up to
date. For these reasons, as discussed in the section-by-section
analysis of Sec. 35.202, conforming alternate versions are permissible
only when it is not possible to make web content directly accessible
due to technical or legal limitations. Also, under Sec. 35.203, the
final rule allows a public entity flexibility to show that its use of
other designs, methods, or techniques as alternatives to WCAG 2.1 Level
AA provides substantially equivalent or greater accessibility and
usability of the web content or mobile app. Nothing in this final rule
prohibits an entity from going above and beyond the minimum
accessibility standards this rule sets out.
Additionally, the final rule in Sec. Sec. 35.200(b)(1) and (2) and
35.204 explains that conformance to WCAG 2.1 Level AA is not required
under title II of the ADA to the extent that such conformance would
result in a fundamental alteration in the nature of a service, program,
or activity of the public entity or in undue financial and
administrative burdens.
The final rule also explains in Sec. 35.205 the limited
circumstances in which a public entity that is not in full compliance
with the technical standard will be deemed to have met the requirements
of Sec. 35.200. As discussed further in the section-by-section
analysis of Sec. 35.205, a public entity will be deemed to have
satisfied its obligations under Sec. 35.200 in the limited
circumstance in which the public entity can demonstrate that its
nonconformance to the technical standard has such a minimal impact on
access that it would not affect the ability of individuals with
disabilities to use the public entity's web content or mobile app to
access the same information, engage in the same interactions, conduct
the same transactions, and otherwise participate in or benefit from the
same services, programs, and activities as individuals without
disabilities, in a manner that provides substantially equivalent
timeliness, privacy, independence, and ease of use.
More information about these provisions is provided in the section-
by-section analysis.
E. Summary of Costs and Benefits
To estimate the costs and benefits associated with this rule, the
Department conducted a FRIA. This analysis is required for significant
regulatory actions under Executive Order 12866, as amended.\15\ The
FRIA serves to inform the public about the rule's costs and benefits to
society, taking into account both quantitative and qualitative costs
and benefits. A detailed summary of the FRIA is included in Section IV
of this preamble. Table 2 below shows a high-level overview of the
Department's monetized findings. Further, this rule will benefit
individuals with disabilities uniquely and in their day-to-day lives in
many ways that could not be quantified due to unavailable data. Non-
monetized costs and benefits are discussed in the FRIA.
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\15\ See E.O. 14094, 88 FR 21879 (Apr. 6, 2023); E.O. 13563, 76
FR 3821 (Jan. 18, 2011); E.O. 13272, 67 FR 53461 (Aug. 13, 2002);
E.O. 13132, 64 FR 43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735
(Sept. 30, 1993).
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Comparing annualized costs and benefits of this rule, monetized
benefits to society outweigh the costs. Net annualized benefits over
the first 10 years following publication of this rule total $1.9
billion per year using a 3 percent discount rate and $1.5 billion per
year using a 7 percent discount rate (Table 2). Additionally, beyond
this 10-year period, benefits are likely to continue to accrue at a
greater rate than costs because many of the costs are upfront costs and
the benefits tend to have a delay before beginning to accrue.
To consider the relative magnitude of the estimated costs of this
regulation, the Department compares the costs to revenues for public
entities. Because calculating this ratio for every public entity would
be impractical, the Department used the estimated average annualized
cost compared to the average annual revenue by each public entity type.
The costs for each public entity type and size are generally estimated
to be below 1 percent of revenues (the one exception is small
independent community colleges, for which the cost-to-revenue ratio is
1.05 percent and 1.10 percent using a 3 percent and 7 percent
[[Page 31323]]
discount rate, respectively),\16\ so the Department does not believe
the rule will be unduly burdensome or costly for public entities.\17\
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\16\ However, the Department notes that revenue for small
independent community colleges was estimated using the 2012 Census
of Governments, so revenue for small independent community colleges
would likely be underestimated if small independent community
colleges had a greater share of total local government revenue in
2022 than in 2012. If this were true, the Department expects that
the cost-to-revenue ratio for small independent community colleges
would be lower.
\17\ As a point of reference, the United States Small Business
Administration advises agencies that a potential indicator that the
impact of a regulation may be ``significant'' is whether the costs
exceed 1 percent of the gross revenues of the entities in a
particular sector, although the threshold may vary based on the
particular types of entities at issue. See U.S. Small Bus. Admin., A
Guide for Government Agencies: How to Comply with the Regulatory
Flexibility Act, at 19 (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/PWL9-ZTW6]; see also U.S. Env't Prot. Agency, EPA's Action
Development Process: Final Guidance for EPA Rulewriters: Regulatory
Flexibility Act, at 24 (Nov. 2006), https://www.epa.gov/sites/default/files/2015-06/documents/guidance-regflexact.pdf [https://perma.cc/9XFZ-3EVA] (providing an illustrative example of a
hypothetical analysis under the RFA in which, for certain small
entities, economic impact of ``[l]ess than 1% for all affected small
entities'' may be ``presumed'' to have ``no significant economic
impact on a substantial number of small entities'').
Table 2--10-Year Average Annualized Comparison of Costs and Benefits
------------------------------------------------------------------------
3% Discount 7% Discount
Figure rate rate
------------------------------------------------------------------------
Average annualized costs (millions)..... $3,331.3 $3,515.0
Average annualized benefits (millions).. $5,229.5 $5,029.2
Net benefits (millions)................. $1,898.2 $1,514.2
Cost-to-benefit ratio................... 0.6 0.7
------------------------------------------------------------------------
II. Relationship to Other Laws
The ADA and the Department's implementing regulation state that
except as otherwise provided, the ADA shall not be construed to apply a
lesser standard than title V of the Rehabilitation Act (29 U.S.C. 791)
or its accompanying regulations.\18\ They further state that the ADA
does not invalidate or limit the remedies, rights, and procedures of
any other laws that provide greater or equal protection for the rights
of individuals with disabilities or individuals associated with
them.\19\
---------------------------------------------------------------------------
\18\ 42 U.S.C. 12201(a); 28 CFR 35.103(a).
\19\ 42 U.S.C. 12201(b); 28 CFR 35.103(b).
---------------------------------------------------------------------------
The Department recognizes that entities subject to title II of the
ADA may also be subject to other statutes that prohibit discrimination
on the basis of disability. Compliance with the Department's title II
regulation does not necessarily ensure compliance with other statutes
and their implementing regulations. Title II entities are also
obligated to fulfill the ADA's title I requirements in their capacity
as employers,\20\ and those requirements are distinct from the
obligations under this rule.
---------------------------------------------------------------------------
\20\ 42 U.S.C. 12111-12117.
---------------------------------------------------------------------------
Education is another context in which entities have obligations to
comply with other laws imposing affirmative obligations regarding
individuals with disabilities. The Department of Education's
regulations implementing the Individuals with Disabilities Education
Act (``IDEA'') and section 504 of the Rehabilitation Act include
longstanding, affirmative obligations for covered schools to identify
children with disabilities, and both require covered schools to provide
a free appropriate public education.\21\ This final rule builds on, and
does not supplant, those preexisting requirements. A public entity must
continue to meet all of its existing obligations under other laws.
---------------------------------------------------------------------------
\21\ See 20 U.S.C. 1412; 29 U.S.C. 794; 34 CFR 104.32 through
104.33.
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III. Background
A. ADA Statutory and Regulatory History
The ADA broadly protects the rights of individuals with
disabilities in important areas of everyday life, such as in employment
(title I), State and local government entities' services, programs, and
activities (title II, part A), transportation (title II, part B), and
places of public accommodation (title III). The ADA requires newly
designed and constructed or altered State and local government
entities' facilities, public accommodations, and commercial facilities
to be readily accessible to and usable by individuals with
disabilities.\22\ Section 204(a) of title II and section 306(b) of
title III of the ADA direct the Attorney General to promulgate
regulations to carry out the provisions of titles II and III, other
than certain provisions dealing specifically with transportation.\23\
Title II, part A, applies to State and local government entities and
protects qualified individuals with disabilities from discrimination on
the basis of disability in services, programs, and activities of State
and local government entities.
---------------------------------------------------------------------------
\22\ 42 U.S.C. 12101 et seq.
\23\ 42 U.S.C. 12134(a), 12186(b).
---------------------------------------------------------------------------
On July 26, 1991, the Department issued its final rules
implementing title II and title III, which are codified at 28 CFR part
35 (title II) and part 36 (title III),\24\ and include the ADA
Standards for Accessible Design (``ADA Standards'').\25\ At that time,
the web was in its infancy--and mobile apps did not exist--so State and
local government entities did not use either the web or mobile apps as
a means of providing services to the public. Thus, web content and
mobile apps were not mentioned in the Department's title II regulation.
Only a few years later, however, as web content of general interest
became available, public entities began using web content to provide
information to the public. Public entities and members of the public
also now rely on mobile apps for critical government services.
---------------------------------------------------------------------------
\24\ Title III prohibits discrimination on the basis of
disability in the full and equal enjoyment of places of public
accommodation (privately operated entities whose operations affect
commerce and fall within at least one of 12 categories listed in the
ADA, such as restaurants, movie theaters, schools, day care
facilities, recreational facilities, and doctors' offices) and
requires newly constructed or altered places of public
accommodation--as well as commercial facilities (facilities intended
for nonresidential use by a private entity and whose operations
affect commerce, such as factories, warehouses, and office
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-12189.
\25\ See 28 CFR 35.104, 36.104.
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B. History of the Department's Title II Web-Related Interpretation and
Guidance
The Department first articulated its interpretation that the ADA
applies to websites of covered entities in 1996.\26\ Under title II,
this includes ensuring that individuals with disabilities are
[[Page 31324]]
not, by reason of such disability, excluded from participation in or
denied the benefits of the services, programs, or activities offered by
State and local government entities, including those offered via the
web, such as education services, voting, town meetings, vaccine
registration, tax filing systems, applications for housing, and
applications for benefits.\27\ The Department has since reiterated this
interpretation in a variety of online contexts.\28\ Title II of the ADA
also applies when public entities use mobile apps to offer their
services, programs, or activities.
---------------------------------------------------------------------------
\26\ See Letter for Tom Harkin, U.S. Senator, from Deval L.
Patrick, Assistant Attorney General, Civil Rights Division, U.S.
Department of Justice (Sept. 9, 1996), https://www.justice.gov/crt/foia/file/666366/download [https://perma.cc/56ZB-WTHA].
\27\ See 42 U.S.C. 12132.
\28\ See U.S. Dep't of Just., Guidance on Web Accessibility and
the ADA, ADA.gov (Mar. 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/WH9E-VTCY]; Settlement Agreement Between
the United States of America and the Champaign-Urbana Mass Transit
District (Dec. 14, 2021), https://www.ada.gov/champaign-urbana_sa.pdf [https://perma.cc/VZU2-E6FZ]; Consent Decree, United
States v. The Regents of the Univ. of Cal. (Nov. 21, 2022), https://www.justice.gov/opa/press-release/file/1553291/download [https://perma.cc/9AMQ-GPP3]; Consent Decree, Dudley v. Miami Univ. (Oct. 13,
2016), https://www.ada.gov/miami_university_cd.html[https://perma.cc/T3FX-G7RZ]; Settlement Agreement Between the United States
of America and Nueces County, Texas Under the Americans with
Disabilities Act (effective Jan. 30, 2015), https://archive.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html [https://perma.cc/TX66-WQY7];
Settlement Agreement Between the United States of America, Louisiana
Tech University, and the Board of Supervisors for the University of
Louisiana System Under the Americans with Disabilities Act (July 22,
2013), https://www.ada.gov/louisiana-tech.htm [https://perma.cc/78ES-4FQR]; Settlement Agreement Between the United States of
America and the City and County of Denver, Colorado Under the
Americans with Disabilities Act (Jan. 8, 2018), https://www.ada.gov/denver_pca/denver_sa.html [https://perma.cc/U7VE-MBSG].
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As with many other statutes, the ADA's requirements are broad and
its implementing regulations do not include specific standards for
every obligation under the statute. This has been the case in the
context of web accessibility under the ADA. Because the Department had
not previously adopted specific technical requirements for web content
and mobile apps through rulemaking, public entities have not had
specific direction on how to comply with the ADA's general requirements
of nondiscrimination and effective communication. However, public
entities still must comply with these ADA obligations with respect to
their web content and mobile apps, including before this rule's
effective date.
The Department has consistently heard from members of the public--
including public entities and individuals with disabilities--that there
is a need for additional information on how to specifically comply with
the ADA in this context. In June 2003, the Department published a
document entitled ``Accessibility of State and Local Government
websites to People with Disabilities,'' which provides tips for State
and local government entities on ways they can make their websites
accessible so that they can better ensure that individuals with
disabilities have equal access to the services, programs, and
activities that are provided through those websites.\29\
---------------------------------------------------------------------------
\29\ U.S. Dep't of Just., Accessibility of State and Local
Government websites to People with Disabilities, ADA.gov (June
2003), https://www.ada.gov/websites2.htm [https://perma.cc/Z7JT-USAN].
---------------------------------------------------------------------------
In March 2022, the Department released additional guidance
addressing web accessibility for individuals with disabilities.\30\
This guidance expanded on the Department's previous ADA guidance by
providing practical tips and resources for making websites accessible
for both title II and title III entities. It also reiterated the
Department's longstanding interpretation that the ADA applies to all
services, programs, and activities of covered entities, including when
they are offered via the web.
---------------------------------------------------------------------------
\30\ U.S. Dep't of Just., Guidance on Web Accessibility and the
ADA, ADA.gov (Mar. 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/874V-JK5Z].
---------------------------------------------------------------------------
The Department's 2003 guidance on State and local government
entities' websites noted that ``an agency with an inaccessible website
may also meet its legal obligations by providing an alternative
accessible way for citizens to use the programs or services, such as a
staffed telephone information line,'' while also acknowledging that
this is unlikely to provide an equal degree of access.\31\ The
Department's March 2022 guidance did not include 24/7 staffed telephone
lines as an alternative to accessible websites. Given the way the
modern web has developed, the Department no longer believes 24/7
staffed telephone lines can realistically provide equal opportunity to
individuals with disabilities. Websites--and often mobile apps--allow
members of the public to get information or request a service within
just a few minutes, and often to do so independently. Getting the same
information or requesting the same service using a staffed telephone
line takes more steps and may result in wait times or difficulty
getting the information.
---------------------------------------------------------------------------
\31\ U.S. Dep't of Just., Accessibility of State and Local
Government websites to People with Disabilities, ADA.gov (June
2003), https://www.ada.gov/websites2.htm [https://perma.cc/Z7JT-USAN].
---------------------------------------------------------------------------
For example, State and local government entities' websites may
allow members of the public to quickly review large quantities of
information, like information about how to register for government
services, information on pending government ordinances, or instructions
about how to apply for a government benefit. Members of the public can
then use government websites to promptly act on that information by,
for example, registering for programs or activities, submitting
comments on pending government ordinances, or filling out an
application for a government benefit. A member of the public could not
realistically accomplish these tasks efficiently over the phone.
Additionally, a person with a disability who cannot use an
inaccessible online tax form might have to call to request assistance
with filling out either online or mailed forms, which could involve
significant delay, added costs, and could require providing private
information such as banking details or Social Security numbers over the
phone without the benefit of certain security features available for
online transactions. A staffed telephone line also may not be
accessible to someone who is deafblind, or who may have combinations of
other disabilities, such as a coordination issue impacting typing and
an audio processing disability impacting comprehension over the phone.
Finally, calling a staffed telephone line lacks the privacy of looking
up information on a website. A caller needing public safety resources,
for example, might be unable to access a private location to ask for
help on the phone, whereas an accessible website would allow users to
privately locate resources. For these reasons, the Department does not
now believe that a staffed telephone line--even if it is offered 24/7--
provides equal opportunity in the way that an accessible website can.
C. The Department's Previous Web Accessibility-Related Rulemaking
Efforts
The Department has previously pursued rulemaking efforts regarding
web accessibility under title II. On July 26, 2010, the Department's
advance notice of proposed rulemaking (``ANPRM'') entitled
``Nondiscrimination on the Basis of Disability; Accessibility of Web
Information and Services of State and Local Government Entities and
Public Accommodations'' was published in the Federal Register.\32\ The
ANPRM
[[Page 31325]]
announced that the Department was considering revising the regulations
implementing titles II and III of the ADA to establish specific
requirements for State and local government entities and public
accommodations to make their websites accessible to individuals with
disabilities.\33\ In the ANPRM, the Department sought information on
various topics, including what standards, if any, it should adopt for
web accessibility; whether the Department should adopt coverage
limitations for certain entities, like small businesses; and what
resources and services are available to make existing websites
accessible to individuals with disabilities.\34\ The Department also
requested comments on the costs of making websites accessible; whether
there are effective and reasonable alternatives to make websites
accessible that the Department should consider permitting; and when any
web accessibility requirements adopted by the Department should become
effective.\35\ The Department received approximately 400 public
comments addressing issues germane to both titles II and III in
response to the ANPRM. The Department later announced that it had
decided to pursue separate rulemakings addressing web accessibility
under titles II and III.\36\
---------------------------------------------------------------------------
\32\ 75 FR 43460 (July 26, 2010).
\33\ Id.
\34\ 75 FR 43465-43467.
\35\ Id.
\36\ See U.S. Dep't of Just., Statement of Regulatory Priorities
(Fall 2015), https://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html [https://perma.cc/YF2L-FTSK].
---------------------------------------------------------------------------
On May 9, 2016, the Department followed up on its 2010 ANPRM with a
detailed Supplemental ANPRM that was published in the Federal
Register.\37\ The Supplemental ANPRM solicited public comment about a
variety of issues regarding establishing technical standards for web
access under title II.\38\ The Department received more than 200 public
comments in response to the title II Supplemental ANPRM.
---------------------------------------------------------------------------
\37\ Nondiscrimination on the Basis of Disability; Accessibility
of Web Information and Services of State and Local Government
Entities, 81 FR 28658 (May 9, 2016).
\38\ 81 FR 28662-28686.
---------------------------------------------------------------------------
On December 26, 2017, the Department published a document in the
Federal Register withdrawing four rulemaking actions, including the
titles II and III web rulemakings, stating that it was evaluating
whether promulgating specific web accessibility standards through
regulations was necessary and appropriate to ensure compliance with the
ADA.\39\ The Department has also previously stated that it would
continue to review its entire regulatory landscape and associated
agenda, pursuant to the regulatory reform provisions of Executive Order
13771 and Executive Order 13777.\40\ Those Executive orders were
revoked by Executive Order 13992 in early 2021.\41\
---------------------------------------------------------------------------
\39\ Nondiscrimination on the Basis of Disability; Notice of
Withdrawal of Four Previously Announced Rulemaking Actions, 82 FR
60932 (Dec. 26, 2017).
\40\ See Letter for Charles E. Grassley, U.S. Senator, from
Stephen E. Boyd, Assistant Attorney General, Civil Rights Division,
U.S. Department of Justice (Oct. 11, 2018), https://www.grassley.senate.gov/imo/media/doc/2018-10-11%20DOJ%20to%20Grassley%20-%20ADA%20website%20Accessibility.pdf
[https://perma.cc/8JHS-FK2Q].
\41\ E.O. 13992 sec. 2, 86 FR 7049, 7049 (Jan. 20, 2021).
---------------------------------------------------------------------------
The Department is now reengaging in efforts to promulgate
regulations establishing technical standards for web accessibility as
well as mobile app accessibility for public entities. On August 4,
2023, the Department published an NPRM in the Federal Register as part
of this rulemaking effort.\42\ The NPRM set forth the Department's
specific proposals and sought public feedback. The NPRM included more
than 60 questions for public input.\43\ The public comment period
closed on October 3, 2023.\44\ The Department received approximately
345 comments from members of the public, including individuals with
disabilities, public entities, disability advocacy groups, members of
the accessible technology industry, web developers, and many others.
The Department also published a fact sheet describing the NPRM's
proposed requirements in plain language to help ensure that members of
the public understood the rule and had an opportunity to provide
feedback.\45\ In addition, the Department attended listening sessions
with various stakeholders while the public comment period was open.
Those sessions provided important opportunities to receive through an
additional avenue the information that members of the public wanted to
share about the proposed rule. The three listening sessions that the
Department attended were hosted by the U.S. Small Business
Administration (``SBA'') Office of Advocacy, the Association on Higher
Education and Disability (``AHEAD''), and the Great Lakes ADA Center at
the University of Illinois at Chicago, in conjunction with the ADA
National Network. The sessions convened by the SBA Office of Advocacy
and the Great Lakes ADA Center were open to members of the public.
There were approximately 200 attendees at the SBA session and 380
attendees at the Great Lakes ADA Center session.\46\ The session with
AHEAD included two representatives from AHEAD along with five
representatives from public universities. The Department welcomed the
opportunity to hear from public stakeholders. However, the Department
informed attendees that these listening sessions did not serve as a
substitute for submitting written comments during the notice and
comment period.
---------------------------------------------------------------------------
\42\ Nondiscrimination on the Basis of Disability; Accessibility
of Web Information and Services of State and Local Government
Entities, 88 FR 51948 (Aug. 4, 2023).
\43\ 88 FR 51958-51986.
\44\ See 88 FR 51948.
\45\ U.S. Dep't of Just., Fact Sheet: Notice of Proposed
Rulemaking on Accessibility of Web Information and Services of State
and Local Government Entities, ADA.gov (July 20, 2023), https://www.ada.gov/resources/2023-07-20-web-nprm/# [https://perma.cc/B7JL-9CVS].
\46\ U.S. Dep't of Just., Ex Parte Communication Record on
Proposed Rule on Nondiscrimination on the Basis of Disability;
Accessibility of Web Information and Services of State and Local
Government Entities and Public Accommodations (Sept. 29, 2023),
https://www.regulations.gov/document/DOJ-CRT-2023-0007-0158 [https://perma.cc/43JX-AAMG]; U.S. Dep't of Just., Ex Parte Communication
Record on Proposed Rule on Nondiscrimination on the Basis of
Disability; Accessibility of Web Information and Services of State
and Local Government Entities and Public Accommodations (Nov. 17,
2023), https://www.regulations.gov/document/DOJ-CRT-2023-0007-0355
[https://perma.cc/W45S-XDQH].
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D. Need for Department Action
1. Use of Web Content by Title II Entities
As public comments have reinforced, public entities regularly use
the web to offer services, programs, or activities to the public.\47\
The web can often help public entities streamline their services,
programs, or activities and disseminate important information quickly
and effectively. For example, members of the public routinely make
online service requests--from requesting streetlight repairs and bulk
trash pickups to reporting broken parking meters--and can often check
the status of those service requests online. Public entities' websites
also offer the opportunity for people to, for example, renew their
vehicle registrations, submit complaints, purchase event permits,
reserve public facilities, sign up for recreational activities, and pay
traffic fines and property taxes, making some of these
[[Page 31326]]
otherwise time-consuming tasks relatively easy and expanding their
availability beyond regular business hours. Access to these services
via the web can be particularly important for those who live in rural
communities and might otherwise need to travel long distances to reach
government buildings.\48\
---------------------------------------------------------------------------
\47\ See, e.g., John B. Horrigan & Lee Rainie, Pew Research
Ctr., Connecting with Government or Government Data (Apr. 21, 2015),
https://www.pewresearch.org/internet/2015/04/21/connecting-with-government-or-government-data/ [https://perma.cc/BFA6-QRQU];
Samantha Becker et al., Opportunity for All: How the American Public
Benefits from internet Access at U.S. Libraries, at 7-8, 120-27
(2010), https://www.imls.gov/sites/default/files/publications/documents/opportunityforall_0.pdf [https://perma.cc/3FDG-553G].
\48\ See, e.g., NORC Walsh Ctr. for Rural Health Analysis &
Rural Health Info. Hub, Access to Care for Rural People with
Disabilities Toolkit (Dec. 2016), https://www.ruralhealthinfo.org/toolkits/disabilities.pdf [https://perma.cc/YX4E-QWEE].
---------------------------------------------------------------------------
Many public entities use online resources to promote access to
public benefits. People can use websites of public entities to file for
unemployment or other benefits and find and apply for job openings.
Applications for many Federal benefits, such as unemployment benefits
and food stamps, are also available through State websites. Through the
websites of State and local government entities, business owners can
register their businesses, apply for occupational and professional
licenses, bid on contracts to provide products and services to public
entities, and obtain information about laws and regulations with which
they must comply. The websites of many State and local government
entities also allow members of the public to research and verify
business licenses online and report unsavory business practices.
People also rely on public entities' websites to engage in civic
participation. People can frequently watch local public hearings, find
schedules for community meetings, or take part in live chats with
government officials on the websites of State and local government
entities. Many public entities allow voters to begin the voter
registration process and obtain candidate information on their
websites. Individuals interested in running for local public offices
can often find pertinent information concerning candidate
qualifications and filing requirements on these websites as well. The
websites of public entities also include information about a range of
issues of concern to the community and about how people can get
involved in community efforts to improve the administration of
government services.
Public entities are also using websites as an integral part of
public education.\49\ Public schools at all levels, including public
colleges and universities, offer programs, reading material, and
classroom instruction through websites. Most public colleges and
universities rely heavily on websites and other online technologies in
the application process for prospective students; for housing
eligibility and on-campus living assignments; for course registration
and assignments; and for a wide variety of administrative and
logistical functions in which students must participate. Similarly, in
many public elementary and secondary school settings, teachers and
administrators communicate via the web to parents and students about
grades, assignments, and administrative matters.
---------------------------------------------------------------------------
\49\ See, e.g., Consent Decree, United States v. The Regents of
the Univ. of Cal. (Nov. 20, 2022), https://www.justice.gov/opa/press-release/file/1553291/download [https://perma.cc/9AMQ-GPP3];
Natasha Singer, Online Schools Are Here To Stay, Even After the
Pandemic, N.Y. Times, Apr. 11, 2021, https://www.nytimes.com/2021/04/11/technology/remote-learning-online-school.html [https://perma.cc/ZYF6-79EE] (June 23, 2023); Institute of Education
Sciences, National Ctr. for Education Statistics, Distance Learning,
National Center for Education Statistics, https://nces.ed.gov/fastfacts/display.asp?id=80 [https://perma.cc/XZT2-UKAD].
---------------------------------------------------------------------------
As public comments on the NPRM have reinforced, access to the web
has become increasingly important as a result of the COVID-19 pandemic,
which shut down workplaces, schools, and in-person services, and forced
millions of Americans to stay home for extended periods.\50\ In
response, the American public increasingly turned to the web for work,
activities, and learning.\51\ A study conducted in April 2021 found
that 90 percent of adults reported the web was essential or important
to them.\52\ Several commenters on the NPRM specifically highlighted
challenges underscored by the COVID-19 pandemic such as the denial of
access to safety information and pandemic-related services, including
vaccination appointments.
---------------------------------------------------------------------------
\50\ See Volker Stocker et al., Chapter 2: COVID-19 and the
Internet: Lessons Learned, in Beyond the Pandemic? Exploring the
Impact of COVID-19 on Telecommunications and the Internet 17, 21-29
(2023), https://www.emerald.com/insight/content/doi/10.1108/978-1-80262-049-820231002/full/pdf [https://perma.cc/82P5-GVRV]; Colleen
McClain et al., Pew Research Ctr., The Internet and the Pandemic 3
(Sep. 1, 2021), https://www.pewresearch.org/internet/2021/09/01/the-internet-and-the-pandemic/ [https://perma.cc/4WVA-FQ9P].
\51\ See Jina Suh et al., Disparate Impacts on Online
Information Access During the COVID-19 Pandemic, 13 Nature Comms. 1,
2-6 (Nov. 19, 2022), https://www.nature.com/articles/s41467-022-34592-z#Sec6 [https://perma.cc/CP2X-3ES6]; Sara Fischer & Margaret
Harding McGill, Broadband Usage Will Keep Growing Post-Pandemic,
Axios (May 4, 2021), https://www.axios.com/2021/05/04/broadband-usage-post-pandemic-increase. A Perma archive link was unavailable
for this citation; Kerry Dobransky & Eszter Hargittai, Piercing the
Pandemic Social Bubble: Disability and Social Media Use About COVID-
19, American Behavioral Scientist (Mar. 29, 2021), https://doi.org/10.1177/00027642211003146. A Perma archive link was unavailable for
this citation.
\52\ Colleen McClain et al., Pew Research Ctr., The Internet and
the Pandemic, at 3 (Sept. 1, 2021), https://www.pewresearch.org/internet/2021/09/01/the-internet-and-the-pandemic/ [https://perma.cc/4WVA-FQ9P].
---------------------------------------------------------------------------
While important for everyone during the pandemic, access to web-
based services took on heightened importance for people with
disabilities, many of whom face a greater risk of COVID-19 exposure,
serious illness, and death.\53\ A report by the National Council on
Disability indicated that COVID-19 has had a disproportionately
negative impact on the ability of people with disabilities to access
healthcare, education, and employment, among other areas, making remote
access to these opportunities via the web even more important.\54\ The
Department believes that although many public health measures
addressing the COVID-19 pandemic are no longer in place, there have
been durable changes to State and local government entities' operations
and public preferences that necessitate greater access to online
services, programs, and activities.
---------------------------------------------------------------------------
\53\ According to the CDC, some people with disabilities ``might
be more likely to get infected or have severe illness because of
underlying medical conditions, congregate living settings, or
systemic health and social inequities. All people with serious
underlying chronic medical conditions like chronic lung disease, a
serious heart condition, or a weakened immune system seem to be more
likely to get severely ill from COVID-19.'' See Ctrs. for Disease
Control and Prevention, People with Disabilities, https://www.cdc.gov/ncbddd/humandevelopment/covid-19/people-with-disabilities.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fneed-extra-precautions%2Fpeople-with-disabilities.html [https://perma.cc/WZ7U-2EQE].
\54\ See Nat'l Council on Disability, 2021 Progress Report: The
Impact of COVID-19 on People with Disabilities, (Oct. 29, 2021),
https://www.ncd.gov/report/an-extra/ [https://perma.cc/2AUU-6R73].
---------------------------------------------------------------------------
As discussed at greater length below, many public entities' web
content is not fully accessible, which often means that individuals
with disabilities are denied equal access to important services,
programs, or activities.
2. Use of Mobile Applications by Title II Entities
This rule also covers mobile apps because public entities often use
mobile apps to offer their services, programs, or activities to the
public. Mobile apps are software applications that are downloaded and
designed to run on mobile devices, such as smartphones and tablets.\55\
Many public entities use
[[Page 31327]]
mobile apps to provide services and reach the public in various ways,
including the purposes for which public entities use websites, in
addition to others. For example, as with websites, residents can often
use mobile apps provided or made available by public entities to submit
service requests, such as requests to clean graffiti or repair a
street-light outage, and track the status of these requests. Public
entities' apps often take advantage of common features of mobile
devices, such as camera and Global Positioning System (``GPS'')
functions,\56\ so individuals can provide public entities with a
precise description and location of issues. These may include issues
such as potholes,\57\ physical barriers created by illegal dumping or
parking, or curb ramps that need to be fixed to ensure accessibility
for some people with disabilities. Some public transit authorities have
transit apps that use a mobile device's GPS function to provide bus
riders with the location of nearby bus stops and real-time arrival and
departure times.\58\ In addition, public entities are also using mobile
apps to assist with emergency planning for natural disasters like
wildfires; provide information about local schools; and promote
tourism, civic culture, and community initiatives.\59\ During the
COVID-19 pandemic, when many State and local government entities'
offices were closed, public entities used mobile apps to inform people
about benefits and resources, to provide updates about the pandemic,
and as a means to show proof of vaccination status, among other
things.\60\
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\55\ Mobile apps are distinct from a website that can be
accessed by a mobile device because, in part, mobile apps are not
directly accessible on the web; they are often downloaded on a
mobile device. Mona Bushnell, What Is the Difference Between an App
and a Mobile website?, Bus. News Daily, https://www.businessnewsdaily.com/6783-mobile-website-vs-mobile-app.html
[https://perma.cc/9LKC-GUEM] (Aug. 3, 2022). A mobile website, by
contrast, is a website that is designed so that it can be accessed
by a mobile device similarly to how it can be accessed on a desktop
computer. Id. Both mobile apps and mobile websites are covered by
this rule.
\56\ See IBM Ctr. for the Bus. of Gov't, Using Mobile Apps in
Government, at 11 (2015), https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf
[https://perma.cc/248X-8A6C].
\57\ Id. at 32.
\58\ See id. at 28, 30-31.
\59\ See id. at 7-8.
\60\ See Rob Pegoraro, COVID-19 Tracking Apps, Supported by
Apple and Google, Begin Showing Up in App Stores, USA Today, Aug.
25, 2020, https://www.usatoday.com/story/tech/columnist/2020/08/25/google-and-apple-supported-coronavirus-tracking-apps-land-states/3435214001/ [https://perma.cc/YH8C-K2F9] (Aug. 26, 2020) (describing
how various states' apps allow contact tracing through anonymized
data and can provide information about testing and other COVID-19
safety practices); Chandra Steele, Does My State Have a COVID-19
Vaccine App, PCMag, https://www.pcmag.com/how-to/does-my-state-have-a-covid-19-vaccine-app [https://perma.cc/H338-MCWC] (Feb. 27, 2023).
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3. Barriers to Web and Mobile App Accessibility
Millions of individuals in the United States have disabilities that
can affect their use of the web and mobile apps.\61\ Many of these
individuals use assistive technology to enable them to navigate
websites or mobile apps or access information contained on those sites
or apps. For example, individuals who are unable to use their hands may
use speech recognition software to navigate a website or a mobile app,
while individuals who are blind may rely on a screen reader to convert
the visual information on a website or mobile app into speech. Many
websites and mobile apps are coded or presented such that some
individuals with disabilities do not have access to all the information
or features provided on or available on the website or mobile app.\62\
For instance, individuals who are deaf may be unable to access
information in web videos and other multimedia presentations that do
not have captions. Individuals with low vision may be unable to read
websites or mobile apps that do not allow text to be resized or do not
provide enough contrast. Individuals with limited manual dexterity or
vision disabilities who use assistive technology that enables them to
interact with websites may be unable to access sites that do not
support keyboard alternatives for mouse commands. These same
individuals, along with individuals with cognitive and vision
disabilities, often encounter difficulty using portions of websites and
mobile apps that require timed responses from users but do not give
users the opportunity to indicate that they need more time to respond.
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\61\ See Section 2.2, ``Number of Individuals with
Disabilities,'' in the accompanying FRIA for more information on the
estimated prevalence of individuals with certain disabilities.
\62\ See W3C, Diverse Abilities and Barriers, https://www.w3.org/WAI/people-use-web/abilities-barriers/ [https://perma.cc/DXJ3-BTFW] (May 15, 2017).
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Individuals who are blind or have low vision often confront
significant barriers to accessing websites and mobile apps. For
example, a study from the University of Washington analyzed
approximately 10,000 mobile apps and found that many are highly
inaccessible to individuals with disabilities.\63\ The study found that
23 percent of the mobile apps reviewed did not provide content
descriptions of images for most of their image-based buttons.\64\ As a
result, the functionality of those buttons is not accessible for people
who use screen readers.\65\ Additionally, other mobile apps may be
inaccessible if they do not allow text resizing, which can provide
larger text for people with vision disabilities.\66\
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\63\ See Large-Scale Analysis Finds Many Mobile Apps Are
Inaccessible, Univ. of Washington CREATE (Mar. 1, 2021), https://create.uw.edu/initiatives/large-scale-analysis-finds-many-mobile-apps-are-inaccessible/ [https://perma.cc/442K-SBCG].
\64\ Id.
\65\ Id.
\66\ See Lucia Cerchie, Text Resizing in iOS and Android, The
A11y Project (Jan. 28, 2021), https://www.a11yproject.com/posts/text-resizing-in-ios-and-android/ [https://perma.cc/C29M-N2J6].
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Furthermore, many websites and mobile apps provide information
visually, without features that allow screen readers or other assistive
technology to retrieve the information so it can be presented in an
accessible manner. A common barrier to accessibility is an image or
photograph without corresponding text (``alternative text'' or ``alt
text'') describing the image. Generally, a screen reader or similar
assistive technology cannot ``read'' an image, leaving individuals who
are blind with no way of independently knowing what information the
image conveys (e.g., a simple icon or a detailed graph). Similarly, if
websites lack headings that facilitate navigation using assistive
technology, they may be difficult or impossible for someone using
assistive technology to navigate.\67\ Additionally, websites or mobile
apps may fail to present tables in a way that allows the information in
the table to be interpreted by someone who is using assistive
technology.\68\ Web-based forms, which are an essential part of
accessing government services, are often inaccessible to individuals
with disabilities who use assistive technology. For example, field
elements on forms, which are the empty boxes on forms that receive
input for specific pieces of information, such as a last name or
telephone number, may lack clear labels that can be read by assistive
technology. Inaccessible form fields make it difficult for people using
assistive technology to fill out online forms, pay fees and fines, or
otherwise participate in government services, programs, or activities
using a website. Some governmental entities use inaccessible third-
party websites and mobile apps to accept online payments, while others
request public input through their own inaccessible websites and mobile
apps. As commenters have emphasized, these barriers greatly impede the
ability of individuals with
[[Page 31328]]
disabilities to access the services, programs, or activities offered by
public entities via the web and mobile apps.
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\67\ See, e.g., W3C, WCAG 2.1 Understanding Docs: Understanding
SC 1.3.1: Info and Relationships (Level A), https://www.w3.org/WAI/WCAG21/Understanding/info-and-relationships [https://perma.cc/9XRQ-HWWW] (June 20, 2023).
\68\ See, e.g., W3C, Tables Tutorial, https://www.w3.org/WAI/tutorials/tables/ [https://perma.cc/FMG2-33C4] (Feb. 16, 2023).
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In many instances, removing certain web content and mobile app
accessibility barriers is neither difficult nor especially costly. For
example, the addition of invisible attributes known as alt text or alt
tags to an image helps orient an individual using a screen reader and
allows them to gain access to the information on the website.\69\ Alt
text can be added to the coding of a website without any specialized
equipment.\70\ Similarly, adding headings, which facilitate page
navigation for those using screen readers, can often be done easily as
well.\71\
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\69\ W3C, Images Tutorial, https://www.w3.org/WAI/tutorials/images/ [https://perma.cc/G6TL-W7ZC] (Feb. 08, 2022).
\70\ Id.
\71\ W3C, Technique G130: Providing Descriptive Headings,
https://www.w3.org/WAI/WCAG21/Techniques/general/G130.html [https://perma.cc/XWM5-LL6S] (June 20, 2023).
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Public comments on the NPRM described the lack of independence, and
the resulting lack of privacy, that can stem from accessibility
barriers. These commenters noted that without full and equal access to
digital spaces, individuals with disabilities must constantly rely on
support from others to perform tasks they could complete themselves if
the online infrastructure enabled accessibility. Commenters noted that
when using public entities' inaccessible web content or mobile apps for
interactions that involve confidential information, individuals with
disabilities must forfeit privacy and independence to seek assistance.
Commenters pointed out that constantly needing assistance from others
not only impacts self-confidence and perceptions of self-worth, but
also imposes a costly and burdensome ``time tax'' because it means that
individuals with disabilities must spend more time and effort to gain
access than individuals without disabilities.
Commenters also pointed out that accessible digital spaces benefit
everyone. Just as the existence of curb cuts benefits people in many
different scenarios--such as those using wheelchairs, pushing
strollers, and using a trolley to deliver goods--accessible web content
and mobile apps are generally more user friendly. For example,
captioning is often used by individuals viewing videos in quiet public
spaces and sufficient color contrast makes it generally easier to read
text.
4. Inadequacy of Voluntary Compliance With Technical Standards
The web has changed significantly, and its use has become far more
prevalent, since Congress enacted the ADA in 1990 and since the
Department subsequently promulgated its first ADA regulations. Neither
the ADA nor the Department's regulations specifically addressed public
entities' use of web content and mobile apps to provide their services,
programs, or activities. Congress contemplated, however, that the
Department would apply title II, part A of the statute in a manner that
would adjust over time with changing circumstances and Congress
delegated authority to the Attorney General to promulgate regulations
to carry out the ADA's mandate under title II, part A.\72\ Consistent
with this approach, the Department stated in the preamble to the
original 1991 ADA regulations that the regulations should be
interpreted to keep pace with developing technologies.\73\
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\72\ See H.R. Rep. No. 101-485, pt. 2, at 108 (1990); 42 U.S.C.
12134(a).
\73\ Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities, 56 FR 35544, 35566
(July 26, 1991); see 28 CFR part 36, appendix B.
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Since 1996, the Department has consistently taken the position that
the ADA applies to the web content of State and local government
entities. This interpretation comes from title II's application to
``all services, programs, and activities provided or made available by
public entities.'' \74\ The Department has affirmed the application of
the statute to websites in multiple technical assistance documents over
the past two decades.\75\ Further, the Department has repeatedly
enforced this obligation and worked with State and local government
entities to make their websites accessible, such as through Project
Civic Access, an initiative to promote local governments' compliance
with the ADA by eliminating physical and communication barriers
impeding full participation by people with disabilities in community
life.\76\ As State and local government entities have increasingly
turned to mobile apps to offer services, programs, or activities, the
Department has enforced those entities' title II obligations in that
context as well.\77\ A variety of voluntary standards and structures
have been developed for the web through nonprofit organizations using
multinational collaborative efforts. For example, domain names are
issued and administered through the Internet Corporation for Assigned
Names and Numbers, the Internet Society publishes computer security
policies and procedures for websites, and the World Wide Web Consortium
(``W3C'') develops a variety of technical standards and guidelines
ranging from issues related to mobile devices and privacy to
internationalization of technology. In the area of accessibility, the
Web Accessibility Initiative (``WAI'') of W3C created the WCAG.
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\74\ See 28 CFR 35.102.
\75\ U.S. Dep't of Just., Accessibility of State and Local
Government websites to People with Disabilities, ADA.gov (June
2003), https://www.ada.gov/websites2.htm [https://perma.cc/Z7JT-USAN]; U.S. Dep't of Just., ADA Best Practices Tool Kit for State
and Local Governments: Chapter 5: website Accessibility Under Title
II of the ADA, ADA.gov (May 7, 2007), https://www.ada.gov/pcatoolkit/chap5toolkit.htm [https://perma.cc/VM3M-AHDJ]; U.S. Dep't
of Just., Guidance on Web Accessibility and the ADA, ADA.gov (Mar.
18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/874V-JK5Z ]; see also supra Section III.B of this preamble.
\76\ U.S. Dep't of Just., Project Civic Access, ADA.gov, https://www.ada.gov/civicac.htm [https://perma.cc/B6WV-4HLQ].
\77\ See, e.g., Settlement Agreement Between the United States
of America and Service Oklahoma (Jan. 22, 2024), https://www.justice.gov/d9/2024-01/service_oklahoma_fully_executed_agreement.01.22.24.pdf [https://perma.cc/MB2A-BKHY]; Settlement Agreement Between the United States
of America and the Champaign-Urbana Mass Transit District (Dec. 14,
2021), https://www.justice.gov/d9/case-documents/attachments/2021/12/14/champaign-urbana_sa.pdf [https://perma.cc/Y3CX-EHCC].
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Many organizations, however, have indicated that voluntary
compliance with these accessibility guidelines has not resulted in
equal access for individuals with disabilities; accordingly, they have
urged the Department to take regulatory action to ensure web content
and mobile app accessibility.\78\ The National Council on Disability,
an independent Federal agency that advises the President, Congress, and
other agencies about programs, policies, practices, and procedures
affecting people with disabilities, has similarly emphasized the need
for regulatory action on this issue.\79\ The Department has also heard
[[Page 31329]]
from State and local government entities and businesses asking for
clarity on the ADA's requirements for websites through regulatory
efforts.\80\ Public commenters responding to the NPRM have also
emphasized the need for regulatory action on this issue to ensure that
public entities' services, programs, and activities offered via the web
and mobile apps are accessible, and have expressed that this rule is
long overdue.
---------------------------------------------------------------------------
\78\ See, e.g., Letter for U.S. Dep't of Just. from American
Council of the Blind et al. (Feb. 28, 2022), https://acb.org/accessibility-standards-joint-letter-2-28-22 [https://perma.cc/R77M-VPH9] (citing research showing persistent barriers in digital
accessibility); Letter for U.S. Dep't of Just. from Consortium for
Citizens with Disabilities Technology & Telecommunications and
Rights Task Force, re: Adopting Regulatory and Subregulatory
Initiatives To Advance Accessibility and Usability of websites,
Online Systems, Mobile Applications, and Other Forms of Information
and Communication Technology Under Titles II and III of the ADA
(Mar. 23, 2022), https://www.c-c-d.org/fichiers/CCD-Web-Accessibility-Letter-to-DOJ-03232022.pdf [https://perma.cc/Q7YB-UNKV].
\79\ See Nat'l Council on Disability, The Need for Federal
Legislation and Regulation Prohibiting Telecommunications and
Information Services Discrimination (Dec. 19, 2006), https://www.ncd.gov/assets/uploads/reports/2006/ncd-need-for-regulation-prohibiting-it-discrimination-2006.pdf [https://perma.cc/7HW5-NF7P]
(discussing how competitive market forces have not proven sufficient
to provide individuals with disabilities access to
telecommunications and information services); see also, e.g., Nat'l
Council on Disability, National Disability Policy: A Progress
Report: Executive Summary (Oct. 7, 2016), https://files.eric.ed.gov/fulltext/ED571832.pdf [https://perma.cc/ZH3P-8LCZ] (urging the
Department to adopt a web accessibility regulation).
\80\ See, e.g., Letter for U.S. Dep't of Just. from Nat'l Ass'n
of Realtors (Dec. 13, 2017), https://www.narfocus.com/billdatabase/clientfiles/172/3/3058.pdf [https://perma.cc/Z93F-K88P].
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In light of the long regulatory history and the ADA's current
general requirement to make all services, programs, and activities
accessible, the Department expects that public entities have made
strides to make their web content and mobile apps accessible since the
2010 ANPRM was published. Such strides have been supported by the
availability of voluntary web content and mobile app accessibility
standards, as well as by the Department's clearly stated position--
supported by judicial decisions \81\--that all services, programs, and
activities of public entities, including those available on websites,
must be accessible. Still, as discussed above, individuals with
disabilities continue to struggle to obtain access to the web content
and mobile apps of public entities. Many public comments on the NPRM
shared anecdotes of instances where individuals were unable to access
government services, programs, or activities offered via the web and
mobile apps, or had to overcome significant barriers to be able to do
so, in spite of public entities' existing obligations under title II.
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\81\ See, e.g., Meyer v. Walthall, 528 F. Supp. 3d 928, 959
(S.D. Ind. 2021) (``[T]he Court finds that Defendants' websites
constitute services or activities within the purview of Title II and
section 504, requiring Defendants to provide effective access to
qualified individuals with a disability.''); Price v. City of Ocala,
Fla., 375 F. Supp. 3d 1264, 1271 (M.D. Fla. 2019) (``Title II
undoubtedly applies to websites.''); Payan v. Los Angeles Cmty.
Coll. Dist., No. 2:17-CV-01697-SVW-SK, 2019 WL 9047062, at *12 (C.D.
Cal. Apr. 23, 2019) (``[T]he ability to sign up for classes on the
website and to view important enrollment information is itself a
`service' warranting protection under Title II and Section 504.'');
Eason v. New York State Bd. of Elections, No. 16-CV-4292 (KBF), 2017
WL 6514837, at *1 (S.D.N.Y. Dec. 20, 2017) (stating, in a case
involving a State's website, that ``Section 504 of the
Rehabilitation Act and Title II of the Americans with Disabilities
Act . . . long ago provided that the disabled are entitled to
meaningful access to a public entity's programs and services. Just
as buildings have architecture that can prevent meaningful access,
so too can software.''); Hindel v. Husted, No. 2:15-CV-3061, 2017 WL
432839, at *5 (S.D. Ohio Feb. 1, 2017) (``The Court finds that
Plaintiffs have sufficiently established that Secretary Husted's
website violates Title II of the ADA because it is not formatted in
a way that is accessible to all individuals, especially blind
individuals like the Individual Plaintiffs whose screen access
software cannot be used on the website.'').
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The Department has brought enforcement actions to address web
content and mobile app access, resulting in a significant number of
settlement agreements with State and local government entities.\82\
Other Federal agencies have also taken enforcement action against
public entities regarding the lack of website access for individuals
with disabilities. In December 2017, for example, the U.S. Department
of Education entered into a resolution agreement with the Alaska
Department of Education and Early Development after it found that the
public entity had violated Federal statutes, including title II of the
ADA, by denying individuals with disabilities an equal opportunity to
participate in the public entity's services, programs, or activities
due to website inaccessibility.\83\ As another example, the U.S.
Department of Housing and Urban Development took action against the
City of Los Angeles, and its subrecipient housing providers, to ensure
that it maintained an accessible website concerning housing
opportunities.\84\
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\82\ See, e.g., Settlement Agreement Between the United States
of America and the Champaign-Urbana Mass Transit District (Dec. 14,
2021), https://www.ada.gov/champaign-urbana_sa.pdf [https://perma.cc/VZU2-E6FZ]; Consent Decree, United States v. The Regents of
the Univ. of Cal. (Nov. 21, 2022), https://www.justice.gov/opa/press-release/file/1553291/download [https://perma.cc/9AMQ-GPP3];
Consent Decree, Dudley v. Miami Univ. (Oct. 13, 2016), https://www.ada.gov/miami_university_cd.html [https://perma.cc/T3FX-G7RZ];
Settlement Agreement Between the United States of America and the
City and County of Denver, Colorado Under the Americans with
Disabilities Act (Jan. 8, 2018), https://www.ada.gov/denver_pca/denver_sa.html [https://perma.cc/U7VE-MBSG]; Settlement Agreement
Between the United States of America and Nueces County, Texas Under
the Americans with Disabilities Act (Jan. 30, 2015), https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html [https://perma.cc/TX66-WQY7]; Settlement Agreement Between the United States of
America, Louisiana Tech University, and the Board of Supervisors for
the University of Louisiana System Under the Americans with
Disabilities Act (July 22, 2013), https://www.ada.gov/louisiana-tech.htm [https://perma.cc/78ES-4FQR].
\83\ U.S. Dep't of Educ., In re Alaska Dep't of Educ. & Early
Dev., OCR Reference No. 10161093 (Dec. 11, 2017) (resolution
agreement), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b.pdf [https://perma.cc/DUS4-HVZJ],
superseded by U.S. Dep't of Educ., In re Alaska Dep't of Educ. &
Early Dev., OCR Reference No.10161093 (Mar. 28, 2018) (revised
resol. agreement), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b1.pdf [https://perma.cc/BVL6-Y59M]
(U.S. Dep't of Educ. Mar. 28, 2018) (revised resol. agreement).
\84\ See Voluntary Compliance Agreement Between the U.S. Dep't
of Housing & Urban Dev. and the City of Los Angeles, Cal. (Aug. 2,
2019), https://www.hud.gov/sites/dfiles/Main/documents/HUD-City-of-Los-Angeles-VCA.pdf [https://perma.cc/X5RN-AJ5K].
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The Department believes, and public comments on the NPRM have
reinforced, that adopting technical standards for web content and
mobile app accessibility provides clarity to public entities regarding
how to make accessible the services, programs, and activities that they
offer via the web and mobile apps. Commenters have specifically
indicated that unambiguous, consistent, and comprehensive standards
will help resolve existing confusion around the technical requirements
for accessibility on public entities' web content and mobile apps.
Adopting specific technical standards for web content and mobile app
accessibility also helps to provide individuals with disabilities with
consistent and predictable access to the web content and mobile apps of
public entities.
IV. Regulatory Process Matters
The Department has examined the likely economic and other effects
of this final rule addressing the accessibility of web content and
mobile apps, as required under applicable Executive Orders,\85\ Federal
administrative statutes (e.g., the Regulatory Flexibility Act,\86\
Paperwork Reduction Act,\87\ and Unfunded Mandates Reform Act \88\),
and other regulatory guidance.\89\
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\85\ See E.O. 14094, 88 FR 21879 (Apr. 6, 2023); E.O. 13563, 76
FR 3821 (Jan. 18, 2011); E.O. 13272, 67 FR 53461 (Aug. 13, 2002);
E.O. 13132, 64 FR 43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735
(Sept. 30, 1993).
\86\ Regulatory Flexibility Act of 1980 (``RFA''), as amended by
the Small Bus. Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
601 et seq.
\87\ Paperwork Reduction Act (``PRA''), 44 U.S.C. 3501 et seq.
\88\ Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.
\89\ See Office of Mgmt. and Budget, Circular A-4 (Sept. 17,
2003) (superseded by Office of Mgmt. and Budget, Circular A-4 (of
Nov. 9, 2023)).
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As discussed previously, the purpose of this rule is to revise the
regulation implementing title II of the ADA in order to ensure that the
services, programs, and activities offered by State and local
government entities to the public via web content and mobile apps are
accessible to individuals with disabilities. The Department is adopting
specific technical standards related to the accessibility of the web
content and mobile apps of State and local government entities and is
specifying
[[Page 31330]]
dates by which such web content and mobile apps must meet those
standards. This rule is necessary to help public entities understand
how to ensure that individuals with disabilities will have equal access
to the services, programs, and activities that public entities provide
or make available through their web content and mobile apps.
The Department has carefully crafted this final rule to better
ensure the protections of title II of the ADA, while at the same time
doing so in an economically efficient manner. After reviewing the
Department's assessment of the likely costs of this regulation, the
Office of Management and Budget (``OMB'') has determined that it is a
significant regulatory action within the meaning of Executive Order
12866, as amended. As such, the Department has undertaken a FRIA
pursuant to Executive Order 12866. The Department has also undertaken a
FRFA as specified in section 604(a) of the Regulatory Flexibility Act.
The results of both of these analyses are summarized below. Lastly, the
Department does not believe that this regulation will have any
significant impact relevant to the Paperwork Reduction Act, the
Unfunded Mandates Reform Act, or the federalism principles outlined in
Executive Order 13132.
A. Final Regulatory Impact Analysis Summary
The Department has prepared a FRIA for this rulemaking. This
rulemaking also contains a FRFA. The Department contracted with Eastern
Research Group Inc. (``ERG'') to prepare this economic assessment. This
summary provides an overview of the Department's economic analysis and
key findings in the FRIA. The full FRIA will be made available at
https://www.justice.gov/crt/disability-rights-section.
Requiring State and local government entity web content and mobile
apps to conform to WCAG 2.1 Level AA will result in costs for State and
local government entities to remediate and maintain their web content
and mobile apps to meet this standard. The Department estimates that
109,893 State and local government entity websites and 8,805 State and
local government mobile apps will be affected by the rule. These
websites and mobile apps provide services on behalf of and are managed
by 91,489 State and local government entities that will incur these
costs. These costs include one-time costs for familiarization with the
requirements of the rule; testing, remediation, and operating and
maintenance (``O&M'') costs for websites; testing, remediation, and O&M
costs for mobile apps; and school course remediation costs. The
remediation costs include both time and software components.
Initial familiarization, testing, and remediation costs of the rule
are expected to occur over the first two or three years until
compliance is required and are presented in Table 3 (two years for
large governments and three years for small governments). Annualized
recurring costs after implementation are shown in Table 4. These
initial and recurring costs are then combined to show total costs over
the 10-year time horizon (Table 5 and Table 6) and annualized costs
over the 10-year time horizon (Table 7 and Table 8). Annualized costs
over this 10-year period are estimated at $3.3 billion assuming a 3
percent discount rate and $3.5 billion assuming a 7 percent discount
rate. This includes $16.9 billion in implementation costs accruing
during the first three years (the implementation period), undiscounted,
and $2.0 billion in annual O&M costs during the next seven years. All
values are presented in 2022 dollars as 2023 data were not yet
available.
Benefits will generally accrue to all individuals who access State
and local government entity websites and mobile apps, and additional
benefits will accrue to individuals with certain types of disabilities.
The WCAG 2.1 Level AA standards for web content and mobile app
accessibility primarily benefit individuals with vision, hearing,
cognitive, and manual dexterity disabilities because accessibility
standards are intended to address barriers that often impede access for
people with these disability types. Using the U.S. Census Bureau's
Survey of Income and Program Participation (``SIPP'') 2022 data, the
Department estimates that 5.5 percent of adults in the United States
have a vision disability, 7.6 percent have a hearing disability, 11.3
percent have a cognitive disability, and 5.8 percent have a manual
dexterity disability.\90\ Due to the incidence of multiple
disabilities, the total share of people with one or more of these
disabilities is 21.3 percent.
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\90\ See U.S. Census Bureau, 2022 SIPP Data, https://www.census.gov/programs-surveys/sipp/data/datasets/2022-data/2022.html [https://perma.cc/7HW3-7GHR] (last visited Mar. 13, 2024).
Analysis of this dataset is discussed further in the Department's
accompanying FRIA, at section 2.2, Number of Individuals with
Disabilities.
---------------------------------------------------------------------------
The Department monetized benefits for both people with these
disabilities and people without disabilities.\91\ There are many
additional benefits that have not been monetized due to lack of data
availability. Benefits that cannot be monetized are discussed
qualitatively. These non-quantified benefits are central to this rule's
potential impact as they include concepts inherent to any civil rights
law--such as equality and dignity. Other impacts to individuals include
increased independence, increased flexibility, increased privacy,
reduced frustration, decreased reliance on companions, and increased
program participation. This rule will also benefit State and local
government entities through increased certainty about what constitutes
an accessible website, a potential reduction in litigation, and a
larger labor market pool (due to increased educational attainment and
access to job training).
---------------------------------------------------------------------------
\91\ Throughout the Department's FRIA, the Department uses the
phrases ``individuals without a relevant disability'' or
``individuals without disabilities'' to refer to individuals without
vision, hearing, cognitive, or manual dexterity disabilities. These
individuals may have other types of disabilities, or they may be
individuals without any disabilities at all.
---------------------------------------------------------------------------
Annual and annualized monetized benefits of this rule are presented
in Table 9, Table 10, and Table 11. Annual benefits, beginning once the
rule is fully implemented, total $5.3 billion. Because individuals
generally prefer benefits received sooner, future benefits need to be
discounted to reflect the lower value due to the wait to receive them.
OMB guidance states that annualized benefits and costs should be
presented using real discount rates of 3 percent and 7 percent.\92\
Benefits annualized over a 10-year period that includes both three
years of implementation and seven years post-implementation total $5.2
billion per year, assuming a 3 percent discount rate, and $5.0 billion
per year, assuming a 7 percent discount rate.
---------------------------------------------------------------------------
\92\ Office of Mgmt. and Budget, Circular A-4 (Sep 17, 2003),
https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf [https://perma.cc/VSR2-UFT8]. Office of
Mgmt. and Budget, Circular A-4 (Sep 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf [https://perma.cc/VSR2-UFT8https://perma.cc/VSR2-UFT8].
---------------------------------------------------------------------------
Comparing annualized costs and benefits, monetized benefits to
society outweigh the costs. Net annualized benefits over the first 10
years post publication of this rule total $1.9 billion per year using a
3 percent discount rate and $1.5 billion per year using a 7 percent
discount rate (Table 12). Additionally, beyond this 10-year period,
benefits are likely to continue to accrue at a greater rate than costs
because many of the costs are upfront costs and the benefits tend to
have a delay before beginning to accrue.
To consider the relative magnitude of the estimated costs of this
regulation, the Department compares the costs to revenues for public
entities. Because
[[Page 31331]]
calculating this ratio for every public entity would be impractical,
the Department used the estimated average annualized cost compared to
the average annual revenue by each government entity type. The costs
for each government entity type and size are generally estimated to be
below 1 percent of revenues (the one exception is small independent
community colleges, for which the cost-to-revenue ratio is 1.05 percent
and 1.10 percent using a 3 percent discount rate and a 7 percent
discount rate, respectively),\93\ so the Department does not believe
the rule will be unduly burdensome or costly for public entities.\94\
---------------------------------------------------------------------------
\93\ However, the Department notes that revenue for small
independent community colleges was estimated using the 2012 Census
of Governments, so revenue for small independent community colleges
would likely be underestimated if small independent community
colleges had a greater share of total local government revenue in
2022 than in 2012. If this were true, the Department expects that
the cost-to-revenue ratio for small independent community colleges
would be lower.
\94\ As a point of reference, the United States Small Business
Administration advises agencies that a potential indicator that the
impact of a regulation may be ``significant'' is whether the costs
exceed 1 percent of the gross revenues of the entities in a
particular sector, although the threshold may vary based on the
particular types of entities at issue. See U.S. Small Bus. Admin., A
Guide for Government Agencies: How To Comply with the Regulatory
Flexibility Act, at 19 (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/PWL9-ZTW6]; see also U.S. Env't Prot. Agency, EPA's Action
Dev. Process: Final Guidance for EPA Rulewriters: Regulatory
Flexibility Act, at 9, 24 (Nov. 2006), https://www.epa.gov/sites/default/files/2015-06/documents/guidance-regflexact.pdf [https://perma.cc/9XFZ-3EVA] (providing an illustrative example of a
hypothetical analysis under the RFA in which, for certain small
entities, economic impact of ``[l]ess than 1% for all affected small
entities'' may be ``[p]resumed'' to have ``no significant economic
impact on a substantial number of small entities'').
---------------------------------------------------------------------------
The Department received some comments on the proposed rule's
estimated costs and benefits. These comments are discussed throughout
the FRIA. One methodological change was made from the analysis
performed for the NPRM on the timing of compliance for making password-
protected course content accessible by public educational entities,
which is discussed further in the FRIA. However, the numbers in the
FRIA also differ from the proposed rule because data have been updated
to reflect the most recently available data and because monetary values
are now reported in 2022 dollars (whereas the analysis performed for
the NPRM presented values in 2021 dollars).
Table 3--Initial Familiarization, Testing, and Remediation Costs
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.02 $1.00 $6.42 $5.35 $12.7 $4.03 $0.00 $0.62 $30.1
Websites........................ 253.0 819.9 2,606.6 1,480.7 408.5 2,014.0 7.1 1,417.4 9,007.3
Mobile apps..................... 14.7 56.8 100.0 1.4 0.0 406.3 1.3 68.9 649.2
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 5,508.5 5,508.5
Primary and secondary course N/A 50.8 19.8 42.8 N/A 1,134.1 N/A N/A 1,247.5
remediation....................
Third-party website remediation. 7.2 39.4 147.2 85.5 19.6 113.8 0.0 93.6 506.4
-----------------------------------------------------------------------------------------------------------------------
Total....................... 275.0 967.8 2,880.1 1,615.8 440.8 3,672.2 8.4 7,089.1 16,949.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 4--Average Annual Cost After Implementation
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Websites........................ $22.0 $71.9 $237.3 $136.9 $43.8 $181.7 $0.6 $123.4 $817.8
Mobile apps..................... 0.01 0.04 0.03 0.00 0.00 0.23 0.00 0.05 0.35
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 1,001.6 1,001.6
Primary and secondary course N/A 5.1 2.0 4.3 N/A 113.4 N/A N/A 124.7
remediation....................
Third-party website remediation. 0.6 3.5 13.4 7.9 2.1 10.2 0.0 8.2 45.9
-----------------------------------------------------------------------------------------------------------------------
Total....................... 22.6 80.6 252.7 149.1 45.9 305.6 0.6 1,133.2 1,990.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 5--Present Value of 10-Year Total Cost, 3 Percent Discount Rate
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.02 $0.97 $6.23 $5.20 $12.33 $3.91 $0.00 $0.60 $29.26
Websites........................ 366.5 1,190.3 3,812.6 2,174.4 634.1 2,939.6 10.3 2,053.9 13,181.7
Mobile apps..................... 14.1 54.2 95.8 1.3 0.0 385.4 1.2 66.2 618.1
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 11,890.1 11,890.1
Primary and secondary course N/A 79.6 31.1 67.1 N/A 1,778.9 N/A N/A 1,956.8
remediation....................
Third-party website remediation. 10.5 57.4 215.3 125.6 30.4 165.8 0.0 135.6 740.7
-----------------------------------------------------------------------------------------------------------------------
Total....................... 391.1 1,382.4 4,161.0 2,373.7 676.8 5,273.6 11.5 14,146.5 28,416.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 31332]]
Table 6--Present Value of 10-Year Total Cost, 7 Percent Discount Rate
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.02 $0.93 $6.00 $5.00 $11.87 $3.76 $0.00 $0.58 $28.16
Websites........................ 323.3 1,048.5 3,327.8 1,892.9 548.3 2,570.7 9.1 1,811.7 11,532.2
Mobile apps..................... 13.3 50.7 90.5 1.3 0.0 358.5 1.2 62.5 577.9
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 10,188.1 10,188.1
Primary and secondary course N/A 69.7 27.2 58.7 N/A 1,557.3 N/A N/A 1,713.0
remediation....................
Third-party website remediation. 9.3 50.5 187.9 109.3 26.3 145.3 0.0 119.6 648.2
-----------------------------------------------------------------------------------------------------------------------
Total....................... 345.9 1,220.4 3,639.4 2,067.2 586.5 4,635.5 10.2 12,182.5 24,687.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 7--10-Year Average Annualized Cost, 3 Percent Discount Rate
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.00 $0.11 $0.73 $0.61 $1.44 $0.46 $0.00 $0.07 $3.43
Websites........................ 43.0 139.5 446.9 254.9 74.3 344.6 1.2 240.8 1,545.3
Mobile apps..................... 1.7 6.3 11.2 0.2 0.0 45.2 0.1 7.8 72.5
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 1,393.9 1,393.9
Primary and secondary course N/A 9.3 3.6 7.9 N/A 208.5 N/A N/A 229.4
remediation....................
Third-party website remediation. 1.2 6.7 25.2 14.7 3.6 19.4 0.0 15.9 86.8
-----------------------------------------------------------------------------------------------------------------------
Total....................... 45.8 162.1 487.8 278.3 79.3 618.2 1.4 1,658.4 3,331.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 8--10-Year Average Annualized Cost, 7 Percent Discount Rate
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special School U.S.
Cost State County Municipal Township district district territories Higher ed. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $0.00 $0.13 $0.85 $0.71 $1.69 $0.54 $0.00 $0.08 $4.01
Websites........................ 46.0 149.3 473.8 269.5 78.1 366.0 1.3 257.9 1,641.9
Mobile apps..................... 1.9 7.2 12.9 0.2 0.0 51.0 0.2 8.9 82.3
Postsecondary course remediation N/A N/A N/A N/A N/A N/A N/A 1,450.6 1,450.6
Primary and secondary course N/A 9.9 3.9 8.4 N/A 221.7 N/A N/A 243.9
remediation....................
Third-party website remediation. 1.3 7.2 26.8 15.6 3.7 20.7 0.0 17.0 92.3
-----------------------------------------------------------------------------------------------------------------------
Total....................... 49.2 173.8 518.2 294.3 83.5 660.0 1.5 1,734.5 3,515.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 9--Annual Benefit After Full Implementation
[Millions]
----------------------------------------------------------------------------------------------------------------
Without
Benefit type Visual Other relevant relevant State and Total
disability disability \a\ disabilities local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users..... $813.5 $1,022.1 $2,713.9 N/A $4,549.5
Time savings--mobile apps....... 76.3 95.9 254.5 N/A 426.7
Educational attainment.......... 10.2 295.8 N/A N/A 306.0
-------------------------------------------------------------------------------
Total benefits.............. 900.0 1,413.7 2,968.5 0.0 5,282.2
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
relevant disabilities.''
Table 10--10-Year Average Annualized Benefits, 3 Percent Discount Rate
[Millions]
----------------------------------------------------------------------------------------------------------------
Without
Benefit type Visual Other relevant relevant State and Total
disability disability \a\ disabilities local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users..... $686.3 $862.3 $2,289.6 N/A $3,838.3
Time savings--mobile apps....... 64.4 80.9 214.7 N/A 360.0
[[Page 31333]]
Educational attainment.......... 34.4 996.9 N/A N/A 1,031.3
-------------------------------------------------------------------------------
Total benefits.............. 785.1 1,940.0 2,504.4 0.0 5,229.5
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
relevant disabilities.''
Table 11--10-Year Average Annualized Benefits, 7 Percent Discount Rate
[Millions]
----------------------------------------------------------------------------------------------------------------
Without
Benefit type Visual Other relevant relevant State and Total
disability disability \a\ disabilities local gov'ts
----------------------------------------------------------------------------------------------------------------
Time savings--current users..... $668.1 $839.4 $2,229.0 N/A $3,736.6
Time savings--mobile apps....... 62.7 78.7 209.0 N/A 350.4
Educational attainment.......... 31.4 910.8 N/A N/A 942.2
-------------------------------------------------------------------------------
Total benefits.............. 762.2 1,828.9 2,438.0 0.0 5,029.2
----------------------------------------------------------------------------------------------------------------
\a\ For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as ``other
relevant disabilities.''
Table 12--10-Year Average Annualized Comparison of Costs and Benefits
------------------------------------------------------------------------
3% Discount 7% Discount
Figure rate rate
------------------------------------------------------------------------
Average annualized costs (millions)..... $3,331.3 $3,515.0
Average annualized benefits (millions).. $5,229.5 $5,029.2
Net benefits (millions)................. $1,898.2 $1,514.2
Cost-to-benefit ratio................... 0.6 0.7
------------------------------------------------------------------------
B. Final Regulatory Flexibility Analysis Summary
The Department has prepared a FRFA to comply with its obligations
under the Regulatory Flexibility Act and related laws and Executive
Orders requiring executive branch agencies to consider the effects of
regulations on small entities.\95\ The Department's FRFA includes an
explanation of steps that the Department has taken to minimize the
impact of this rule on small entities, responses to a comment by the
Chief Counsel for Advocacy of the Small Business Administration, a
description of impacts of this rule on small entities, alternatives the
Department considered related to small entities, and other information
required by the RFA. The Department includes a short summary of some
monetized cost and benefit findings made in the FRFA below, but the
full FRFA will be published along with the Department's FRIA, and it
will be made available to the public at https://www.justice.gov/crt/disability-rights-section.
---------------------------------------------------------------------------
\95\ See U.S. Small Bus. Admin., A Guide for Government
Agencies: How To Comply with the Regulatory Flexibility Act, at 19
(Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/PWL9-ZTW6].
---------------------------------------------------------------------------
The Department calculated both costs and benefits to small
government entities as part of its FRFA. The Department also compared
costs to revenues for small government entities to evaluate the
economic impact to these small government entities. The costs for each
small government entity type and size are generally estimated to be
below 1 percent of revenues (the one exception is small independent
community colleges, for which the cost-to-revenue ratio is 1.05 percent
and 1.10 percent using a 3 percent and 7 percent discount rate,
respectively),\96\ so the Department does not believe the rule will be
unduly burdensome or costly for public entities.\97\ These costs
include one-time costs for familiarization with the requirements of the
rule, the purchase of software to assist with remediation of web
content or mobile apps, the time spent testing and remediating web
content and mobile apps to comply with WCAG 2.1 Level AA, and
elementary, secondary, and postsecondary education course content
remediation. Annual costs include recurring costs for software licenses
and remediation of future content.
---------------------------------------------------------------------------
\96\ However, the Department notes that revenue for small
independent community colleges was estimated using the 2012 Census
of Governments, so revenue for small independent community colleges
would likely be underestimated if small independent community
colleges had a greater share of total local government revenue in
2022 than in 2012. If this were true, the Department expects that
the cost-to-revenue ratio for small independent community colleges
would be lower.
\97\ As a point of reference, the United States Small Business
Administration advises agencies that a potential indicator that the
impact of a regulation may be ``significant'' is whether the costs
exceed 1 percent of the gross revenues of the entities in a
particular sector, although the threshold may vary based on the
particular types of entities at issue. See U.S. Small Bus. Admin., A
Guide for Government Agencies: How To Comply with the Regulatory
Flexibility Act, at 19 (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf [https://perma.cc/PWL9-ZTW6]; see also U.S. Env't Prot. Agency, EPA's Action
Dev. Process: Final Guidance for EPA Rulewriters: Regulatory
Flexibility Act, at 24 (Nov. 2006), https://www.epa.gov/sites/default/files/2015-06/documents/guidance-regflexact.pdf [https://perma.cc/9XFZ-3EVA] (providing an illustrative example of a
hypothetical analysis under the RFA in which, for certain small
entities, economic impact of ``[l]ess than 1% for all affected small
entities'' may be ``[p]resumed'' to have ``no significant economic
impact on a substantial number of small entities'').
---------------------------------------------------------------------------
Costs to small entities are displayed in Table 13 and Table 14;
Table 15 contains the costs and revenues per government type and cost-
to-revenue
[[Page 31334]]
ratios using a 3 percent and 7 percent discount rate. Because the
Department's cost estimates take into account different small entity
types and sizes, the Department believes the estimates in this analysis
are generally representative of what smaller entities of each type
should expect to pay. This is because the Department's methodology
generally estimated costs based on the sampled baseline accessibility
to full accessibility in accordance with this rule, which provides a
precise estimate of the costs within each government type and size.
While the Department recognizes that there may be variation in costs
for differently sized small entity types, the Department's estimates
are generally representative given the precision in our methodology
within each stratified group. The Department received several comments
on its estimates for small government entity costs. A summary of those
comments and the Department's responses are included in the
accompanying FRFA.
Table 13--Present Value of Total 10-Year Costs per Entity, 3% Discount Rate
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Primary and
Number of Regulatory Website Mobile app Postsecondary secondary Third-Party
Type of government entity entities familiarization testing and testing and course course website Total
remediation remediation remediation remediation remediation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Special district............................................... 38,542 $320 $16,452 $0 N/A N/A $790 $17,561
County (small)................................................. 2,105 320 52,893 12,022 N/A $19,949 5,743 90,927
Municipality (small)........................................... 18,729 320 161,722 0 N/A 876 8,957 171,875
Township (small)............................................... 16,097 320 132,260 0 N/A 2,198 7,695 142,472
School district (small)........................................ 11,443 320 168,261 27,634 N/A 81,971 7,648 285,834
U.S. Territory (small)......................................... 2 320 1,026,731 68,209 N/A N/A 6,160 1,101,420
Community College.............................................. 1,146 320 1,020,862 15,916 $3,617,001 N/A 67,409 4,721,508
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Table 14--Present Value of Total 10-Year Costs per Entity, 7% Discount Rate
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Primary and
Number of Regulatory Website Mobile app Postsecondary secondary Third-Party
Type of government entity entities familiarization testing and testing and course course website Total
remediation remediation remediation remediation remediation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Special district............................................... 38,542 $308 $14,226 $0 N/A N/A $683 $15,217
County (small)................................................. 2,105 308 45,992 11,147 N/A $17,463 4,993 79,904
Municipality (small)........................................... 18,729 308 140,772 0 N/A 767 7,797 149,643
Township (small)............................................... 16,097 308 115,101 0 N/A 1,924 6,697 124,029
School district (small)........................................ 11,443 308 146,475 25,624 N/A 71,758 6,658 250,822
U.S. Territory (small)......................................... 2 308 894,141 63,264 N/A N/A 5,365 963,078
Community College.............................................. 1,146 308 900,471 15,031 $3,099,245 N/A 59,460 4,074,515
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Table 15--Number of Small Entities and Ratio of Costs to Government Revenues
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average annual Average annual Total 10-year Total 10-year
Number of cost per cost per average annual average annual Annual revenue Ratio of costs Ratio of costs
Government type small entities entity (3%) entity (7%) costs (3%) costs (7%) (millions) to revenue to revenue
\a\ \c\ \a\ \c\ (millions) (millions) (3%) (7%)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
County.......................................................... 2,105 $10,659.4 $11,376.5 $22.4 $23.9 $69,686.3 0.03 0.03
Municipality.................................................... 18,729 20,149.0 21,305.8 377.4 399.0 197,708.7 0.19 0.20
Township........................................................ 16,097 16,666.1 17,616.8 268.3 283.6 59,802.5 0.45 0.47
Special district................................................ 38,542 2,058.7 2,166.5 79.3 83.5 298,338.3 0.03 0.03
School district \a\............................................. 11,443 36,023.7 38,347.6 412.2 438.8 354,350.5 0.12 0.12
U.S. territory.................................................. 2 129,120.0 137,120.7 0.3 0.3 992.6 0.03 0.03
CCs \b\......................................................... 960 553,504.8 580,119.2 531.4 556.9 N/A N/A N/A
CCs--independent................................................ 231 553,504.8 580,119.2 127.9 134.0 12,149.5 1.05 1.10
Total (includes all CCs)........................................ 87,878 19,245.7 20,324.4 1,691.3 1,786.1 N/A N/A N/A
Total (only independent CCs).................................... 87,149 14,776.6 15,641.7 1,287.8 1,363.2 993,028.5 0.13 0.14
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Excludes community colleges, which are costed separately.
\b\ Includes all dependent community college districts and small independent community college districts. Revenue data are not available for the dependent community college districts.
\c\ This cost consists of regulatory familiarization costs, government website testing and remediation costs, mobile app testing and remediation costs, postsecondary education course
remediation costs, elementary and secondary education course remediation costs, and costs for third-party websites averaged over ten years.
Though not included in the Department's primary benefits analysis
due to methodological limitations, the Department estimated time
savings for State and local government entities from reduced contacts
(i.e., fewer interactions assisting residents). Improved web
accessibility will lead some individuals who accessed government
services via the phone, mail, or in person to begin using the public
entity's website to complete the task. This will generate time savings
for government employees. In the Department's FRFA, the Department
estimates that this will result in time savings to small governments of
$192.6 million per year once full implementation is complete. Assuming
lower benefits during the implementation period results in average
annualized benefits of $162.5 million and $158.1 million to small
governments using a 3 percent and 7 percent discount rate,
respectively. The Department notes that these benefits rely on
assumptions for which the Department could not find reliable data, and
stresses the uncertainty of these estimates given the strong
assumptions made.
The Department explains in greater detail its efforts to minimize
the economic impact on small entities, as well as estimates of
regulatory alternatives that the Department considered to reduce those
impacts in
[[Page 31335]]
the full FRFA accompanying this rule. The FRFA also includes other
information such as the Department's responses to the comment from the
Chief Counsel for Advocacy of the Small Business Administration and
responses to other comments related to the rule's impact on small
entities. Finally, the Department will issue a small entity compliance
guide,\98\ which should help public entities better understand their
obligations under this rule.
---------------------------------------------------------------------------
\98\ See Public Law 104-121, sec. 212, 110 Stat. 847, 858 (1996)
(5 U.S.C. 601 note).
---------------------------------------------------------------------------
C. Executive Order 13132: Federalism
Executive Order 13132 requires executive branch agencies to
consider whether a proposed rule will have federalism implications.\99\
That is, the rulemaking agency must determine whether the rule is
likely to have substantial direct effects on State and local
governments, on the relationship between the Federal Government and the
States and localities, or on the distribution of power and
responsibilities among the different levels of government. If an agency
believes that a proposed rule is likely to have federalism
implications, it must consult with State and local government entity
officials about how to minimize or eliminate the effects.
---------------------------------------------------------------------------
\99\ 64 FR 43255 (Aug. 4, 1999).
---------------------------------------------------------------------------
Title II of the ADA covers State and local government entity
services, programs, and activities, and, therefore, has federalism
implications. State and local government entities have been subject to
the ADA since 1991, and the many State and local government entities
that receive Federal financial assistance have also been required to
comply with the requirements of section 504 of the Rehabilitation Act.
Hence, the ADA and the title II regulation are not novel for State and
local government entities.
In crafting this regulation, the Department has been mindful of its
obligation to meet the objectives of the ADA while also minimizing
conflicts between State law and Federal interests. Since the Department
began efforts to issue a web accessibility regulation more than 13
years ago, the Department has received substantial feedback from State
and local government entities about the potential impacts of rulemaking
on this topic. In the NPRM, the Department solicited comments from
State and local officials and their representative national
organizations on the rule's effects on State and local government
entities, and on whether the rule may have direct effects on the
relationship between the Federal Government and the States, or the
distribution of power and responsibilities among the various levels of
government. The Department also attended three listening sessions on
the NPRM hosted by the SBA's Office of Advocacy, the Association on
Higher Education and Disability, and the Great Lakes ADA Center at the
University of Illinois at Chicago, in conjunction with the ADA National
Network. These sessions were cumulatively attended by more than 500
members of the public, including representatives from public entities,
and the Department received feedback during these sessions about the
potential impacts of the rule on public entities.
In response to the NPRM, the Department received written comments
from members of the public about the relationship between this rule and
State and local laws addressing public entities' web content and mobile
apps. Some commenters asked questions and made comments about how this
rule would interact with State laws providing greater or less
protection for the rights of individuals with disabilities. The
Department wishes to clarify that, consistent with 42 U.S.C. 12201,
this final rule will preempt State laws affecting entities subject to
the ADA only to the extent that those laws provide less protection for
the rights of individuals with disabilities. This rule does not
invalidate or limit the remedies, rights, and procedures of any State
laws that provide greater or equal protection for the rights of
individuals with disabilities. Moreover, the Department's provision on
equivalent facilitation at Sec. 35.203 provides that nothing prevents
a public entity from using designs, methods, or techniques as
alternatives to those prescribed in this rule, provided that such
alternatives result in substantially equivalent or greater
accessibility and usability. Accordingly, for example, if a State law
requires public entities in that State to conform to WCAG 2.2, nothing
in this rule would prevent a public entity from complying with that
standard.
The Department also received comments asking how this rule will
interact with State or local laws requiring public entities to post
certain content online. The Department notes that this rule does not
change public entities' obligations under State and local laws
governing the types of content that public entities must provide or
make available online. Instead, this rule simply requires that when
public entities provide or make available web content or mobile apps,
they must ensure that that content and those apps comply with the
requirements set forth in this rule. This is consistent with the
remainder of the title II regulatory framework, under which public
entities have been required to ensure that their services, programs,
and activities comply with specific accessibility requirements since
1991, even for services, programs, or activities that are otherwise
governed by State and local laws.
D. National Technology Transfer and Advancement Act of 1995
The National Technology Transfer and Advancement Act of 1995
(``NTTAA'') directs that, as a general matter, all Federal agencies and
departments shall use technical standards that are developed or adopted
by voluntary consensus standards bodies, which are private--generally
nonprofit--organizations that develop technical standards or
specifications using well-defined procedures that require openness,
balanced participation among affected interests and groups, fairness
and due process, and an opportunity for appeal, as a means to carry out
policy objectives or activities.\100\ In addition, the NTTAA directs
agencies to consult with voluntary, private sector, consensus standards
bodies and requires that agencies participate with such bodies in the
development of technical standards when such participation is in the
public interest and is compatible with agency and departmental
missions, authorities, priorities, and budget resources.\101\
---------------------------------------------------------------------------
\100\ Public Law 104-113, sec. 12(d)(1) (15 U.S.C. 272 note);
see also Office of Mgmt. and Budget, Circular A-119 (Jan 27, 2016),
https://www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-119_as_of_1_22.pdf [https://perma.cc/A5LP-X3DB].
\101\ Public Law 104-113, sec. 12(d)(2).
---------------------------------------------------------------------------
The Department is adopting WCAG 2.1 Level AA as the accessibility
standard to apply to web content and mobile apps of title II entities.
WCAG 2.1 Level AA was developed by W3C, which has been the principal
international organization involved in developing protocols and
guidelines for the web. W3C develops a variety of technical standards
and guidelines, including ones relating to privacy,
internationalization of technology, and accessibility. Thus, the
Department is complying with the NTTAA in selecting WCAG 2.1 Level AA
as the applicable accessibility standard.
E. Plain Language Instructions
The Department makes every effort to promote clarity and
transparency in its rulemaking. In any regulation, there is a tension
between drafting language that is simple and straightforward and
[[Page 31336]]
drafting language that gives full effect to issues of legal
interpretation. The Department operates a toll-free ADA Information
Line at (800) 514-0301 (voice); 1-833-610-1264 (TTY) that the public is
welcome to call for assistance understanding anything in this rule. In
addition, the ADA.gov website strives to provide information in plain
language about the law, including this rule. The Department will also
issue a small entity compliance guide,\102\ which should help public
entities better understand their obligations under this rule.
---------------------------------------------------------------------------
\102\ See Public Law 104-121, sec. 212, 110 Stat. 847, 858
(1996) (5 U.S.C. 601 note).
---------------------------------------------------------------------------
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (``PRA''), no person is
required to respond to a ``collection of information'' unless the
agency has obtained a control number from OMB.\103\ This final rule
does not contain any collections of information as defined by the PRA.
---------------------------------------------------------------------------
\103\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------
G. Unfunded Mandates Reform Act
Section 4(2) of the Unfunded Mandates Reform Act of 1995 \104\
excludes from coverage under that Act any proposed or final Federal
regulation that ``establishes or enforces any statutory rights that
prohibit discrimination on the basis of race, color, religion, sex,
national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.
---------------------------------------------------------------------------
\104\ 2 U.S.C. 1503(2).
---------------------------------------------------------------------------
H. Incorporation by Reference
As discussed above, through this rule, the Department is adopting
the internationally recognized accessibility standard for web access,
WCAG 2.1 Level AA, published in June 2018, as the technical standard
for web and mobile app accessibility under title II of the ADA. WCAG
2.1 Level AA, published by W3C WAI, specifies success criteria and
requirements that make web content more accessible to all users,
including individuals with disabilities. The Department incorporates
WCAG 2.1 Level AA by reference into this rule, instead of restating all
of its requirements verbatim. To the extent there are distinctions
between WCAG 2.1 Level AA and the standards articulated in this rule,
the standards articulated in this rule prevail.
The Department notes that when W3C publishes new versions of WCAG,
those versions will not be automatically incorporated into this rule.
Federal agencies do not incorporate by reference into published
regulations future versions of standards developed by bodies like W3C.
Federal agencies are required to identify the particular version of a
standard incorporated by reference in a regulation.\105\ When an
updated version of a standard is published, an agency must revise its
regulation if it seeks to incorporate any of the new material.
---------------------------------------------------------------------------
\105\ See, e.g., 1 CFR 51.1(f) (``Incorporation by reference of
a publication is limited to the edition of the publication that is
approved [by the Office of the Federal Register]. Future amendments
or revisions of the publication are not included.'').
---------------------------------------------------------------------------
WCAG 2.1 Level AA is reasonably available to interested parties.
Free copies of WCAG 2.1 Level AA are available online on W3C's website
at https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. In addition, a copy of WCAG 2.1 Level AA is also
available for inspection by appointment at the Disability Rights
Section, Civil Rights Division, U.S. Department of Justice, 150 M St.
NE, 9th Floor, Washington, DC 20002.
I. Congressional Review Act
In accordance with the Congressional Review Act, the Department has
determined that this rule is a major rule as defined by 5 U.S.C.
804(2). The Department will submit this final rule and other
appropriate reports to Congress and the Government Accountability
Office for review.
List of Subjects for 28 CFR Part 35
Administrative practice and procedure, Civil rights,
Communications, Incorporation by reference, Individuals with
disabilities, State and local requirements.
By the authority vested in me as Attorney General by law, including
5 U.S.C. 301; 28 U.S.C. 509, 510; sections 201 and 204 of the of the
Americans with Disabilities Act, Public Law 101-336, as amended, and
section 506 of the ADA Amendments Act of 2008, Public Law 110-325, and
for the reasons set forth in appendix D to 28 CFR part 35, chapter I of
title 28 of the Code of Federal Regulations is amended as follows--
PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES
0
1. The authority citation for part 35 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134,
12131, and 12205a.
Subpart A--General
0
2. Amend Sec. 35.104 by adding definitions for ``Archived web
content,'' ``Conventional electronic documents,'' ``Mobile applications
(apps),'' ``Special district government,'' ``Total population,'' ``User
agent,'' ``WCAG 2.1,'' and ``Web content'' in alphabetical order to
read as follows:
Sec. 35.104 Definitions.
* * * * *
Archived web content means web content that--
(1) Was created before the date the public entity is required to
comply with subpart H of this part, reproduces paper documents created
before the date the public entity is required to comply with subpart H,
or reproduces the contents of other physical media created before the
date the public entity is required to comply with subpart H;
(2) Is retained exclusively for reference, research, or
recordkeeping;
(3) Is not altered or updated after the date of archiving; and
(4) Is organized and stored in a dedicated area or areas clearly
identified as being archived.
* * * * *
Conventional electronic documents means web content or content in
mobile apps that is in the following electronic file formats: portable
document formats (``PDF''), word processor file formats, presentation
file formats, and spreadsheet file formats.
* * * * *
Mobile applications (``apps'') means software applications that are
downloaded and designed to run on mobile devices, such as smartphones
and tablets.
* * * * *
Special district government means a public entity--other than a
county, municipality, township, or independent school district--
authorized by State law to provide one function or a limited number of
designated functions with sufficient administrative and fiscal autonomy
to qualify as a separate government and whose population is not
calculated by the United States Census Bureau in the most recent
decennial Census or Small Area Income and Poverty Estimates.
* * * * *
Total population means--
(1) If a public entity has a population calculated by the United
States Census Bureau in the most recent decennial Census, the
population estimate for that public entity as calculated by the United
States Census Bureau in the most recent decennial Census; or
[[Page 31337]]
(2) If a public entity is an independent school district, or an
instrumentality of an independent school district, the population
estimate for the independent school district as calculated by the
United States Census Bureau in the most recent Small Area Income and
Poverty Estimates; or
(3) If a public entity, other than a special district government or
an independent school district, does not have a population estimate
calculated by the United States Census Bureau in the most recent
decennial Census, but is an instrumentality or a commuter authority of
one or more State or local governments that do have such a population
estimate, the combined decennial Census population estimates for any
State or local governments of which the public entity is an
instrumentality or commuter authority; or
(4) For the National Railroad Passenger Corporation, the population
estimate for the United States as calculated by the United States
Census Bureau in the most recent decennial Census.
User agent means any software that retrieves and presents web
content for users.
* * * * *
WCAG 2.1 means the Web Content Accessibility Guidelines (``WCAG'')
2.1, W3C Recommendation 05 June 2018, https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. WCAG 2.1 is
incorporated by reference elsewhere in this part (see Sec. Sec. 35.200
and 35.202).
Web content means the information and sensory experience to be
communicated to the user by means of a user agent, including code or
markup that defines the content's structure, presentation, and
interactions. Examples of web content include text, images, sounds,
videos, controls, animations, and conventional electronic documents.
0
3. Add subpart H to read as follows:
Subpart H--Web and Mobile Accessibility
Sec.
35.200 Requirements for web and mobile accessibility.
35.201 Exceptions.
35.202 Conforming alternate versions.
35.203 Equivalent facilitation.
35.204 Duties.
35.205 Effect of noncompliance that has a minimal impact on access.
35.206-35.209 [Reserved]
Sec. 35.200 Requirements for web and mobile accessibility.
(a) General. A public entity shall ensure that the following are
readily accessible to and usable by individuals with disabilities:
(1) Web content that a public entity provides or makes available,
directly or through contractual, licensing, or other arrangements; and
(2) Mobile apps that a public entity provides or makes available,
directly or through contractual, licensing, or other arrangements.
(b) Requirements. (1) Beginning April 24, 2026, a public entity,
other than a special district government, with a total population of
50,000 or more shall ensure that the web content and mobile apps that
the public entity provides or makes available, directly or through
contractual, licensing, or other arrangements, comply with Level A and
Level AA success criteria and conformance requirements specified in
WCAG 2.1, unless the public entity can demonstrate that compliance with
this section would result in a fundamental alteration in the nature of
a service, program, or activity or in undue financial and
administrative burdens.
(2) Beginning April 26, 2027, a public entity with a total
population of less than 50,000 or any public entity that is a special
district government shall ensure that the web content and mobile apps
that the public entity provides or makes available, directly or through
contractual, licensing, or other arrangements, comply with Level A and
Level AA success criteria and conformance requirements specified in
WCAG 2.1, unless the public entity can demonstrate that compliance with
this section would result in a fundamental alteration in the nature of
a service, program, or activity or in undue financial and
administrative burdens.
(3) WCAG 2.1 is incorporated by reference into this section with
the approval of the Director of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. All material approved for incorporation by
reference is available for inspection at the U.S. Department of Justice
and at the National Archives and Records Administration (``NARA'').
Contact the U.S. Department of Justice at: Disability Rights Section,
Civil Rights Division, U.S. Department of Justice, 150 M St. NE, 9th
Floor, Washington, DC 20002; ADA Information Line: (800) 514-0301
(voice) or 1-833-610-1264 (TTY); website: www.ada.gov [https://perma.cc/U2V5-78KW]. For information on the availability of this
material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html [https://perma.cc/9SJ7-D7XZ] or email
[email protected]. The material may be obtained from the World
Wide Web Consortium (``W3C'') Web Accessibility Initiative (``WAI''),
401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-
2711; email: [email protected]; website: https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.
Sec. 35.201 Exceptions.
The requirements of Sec. 35.200 do not apply to the following:
(a) Archived web content. Archived web content as defined in Sec.
35.104.
(b) Preexisting conventional electronic documents. Conventional
electronic documents that are available as part of a public entity's
web content or mobile apps before the date the public entity is
required to comply with this subpart, unless such documents are
currently used to apply for, gain access to, or participate in the
public entity's services, programs, or activities.
(c) Content posted by a third party. Content posted by a third
party, unless the third party is posting due to contractual, licensing,
or other arrangements with the public entity.
(d) Individualized, password-protected or otherwise secured
conventional electronic documents. Conventional electronic documents
that are:
(1) About a specific individual, their property, or their account;
and
(2) Password-protected or otherwise secured.
(e) Preexisting social media posts. A public entity's social media
posts that were posted before the date the public entity is required to
comply with this subpart.
Sec. 35.202 Conforming alternate versions.
(a) A public entity may use conforming alternate versions of web
content, as defined by WCAG 2.1, to comply with Sec. 35.200 only where
it is not possible to make web content directly accessible due to
technical or legal limitations.
(b) WCAG 2.1 is incorporated by reference into this section with
the approval of the Director of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. All material approved for incorporation by
reference is available for inspection at the U.S. Department of Justice
and at NARA. Contact the U.S. Department of Justice at: Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, 150
M St. NE, 9th Floor, Washington, DC 20002; ADA Information Line: (800)
514-0301 (voice) or 1-833-610-1264 (TTY); website: www.ada.gov [https:/
/
[[Page 31338]]
perma.cc/U2V5-78KW]. For information on the availability of this
material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html [https://perma.cc/9SJ7-D7XZ] or email
[email protected]. The material may be obtained from W3C WAI, 401
Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-2711;
email: [email protected]; website: https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.
Sec. 35.203 Equivalent facilitation.
Nothing in this subpart prevents the use of designs, methods, or
techniques as alternatives to those prescribed, provided that the
alternative designs, methods, or techniques result in substantially
equivalent or greater accessibility and usability of the web content or
mobile app.
Sec. 35.204 Duties.
Where a public entity can demonstrate that compliance with the
requirements of Sec. 35.200 would result in a fundamental alteration
in the nature of a service, program, or activity or in undue financial
and administrative burdens, compliance with Sec. 35.200 is required to
the extent that it does not result in a fundamental alteration or undue
financial and administrative burdens. In those circumstances where
personnel of the public entity believe that the proposed action would
fundamentally alter the service, program, or activity or would result
in undue financial and administrative burdens, a public entity has the
burden of proving that compliance with Sec. 35.200 would result in
such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the head of a public
entity or their designee after considering all resources available for
use in the funding and operation of the service, program, or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action would result in such an
alteration or such burdens, a public entity shall take any other action
that would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with disabilities receive the
benefits or services provided by the public entity to the maximum
extent possible.
Sec. 35.205 Effect of noncompliance that has a minimal impact on
access.
A public entity that is not in full compliance with the
requirements of Sec. 35.200(b) will be deemed to have met the
requirements of Sec. 35.200 in the limited circumstance in which the
public entity can demonstrate that the noncompliance has such a minimal
impact on access that it would not affect the ability of individuals
with disabilities to use the public entity's web content or mobile app
to do any of the following in a manner that provides substantially
equivalent timeliness, privacy, independence, and ease of use:
(a) Access the same information as individuals without
disabilities;
(b) Engage in the same interactions as individuals without
disabilities;
(c) Conduct the same transactions as individuals without
disabilities; and
(d) Otherwise participate in or benefit from the same services,
programs, and activities as individuals without disabilities.
Sec. Sec. 35.206-35.209 [Reserved]
0
4. Add appendix D to part 35 to read as follows:
Appendix D to Part 35--Guidance to Revisions to ADA Title II Regulation
on Accessibility of Web Information and Services of State and Local
Government Entities
Note: This appendix contains guidance providing a section-by-
section analysis of the revisions to this part published on April
24, 2024.
Section-by-Section Analysis and Response to Public Comments
This appendix provides a detailed description of the
Department's changes to this part (the title II regulation), the
reasoning behind those changes, and responses to public comments
received in connection with the rulemaking. The Department made
changes to subpart A of this part and added subpart H to this part.
The section-by-section analysis addresses the changes in the order
they appear in the title II regulation.
Subpart A--General
Section 35.104 Definitions
``Archived Web Content''
The Department is including in Sec. 35.104 a definition for
``archived web content.'' ``Archived web content'' is defined as web
content that was created before the date the public entity is
required to comply with subpart H of this part, reproduces paper
documents created before the date the public entity is required to
comply with subpart H, or reproduces the contents of other physical
media created before the date the public entity is required to
comply with subpart H. Second, the web content is retained
exclusively for reference, research, or recordkeeping. Third, the
web content is not altered or updated after the date of archiving.
Fourth, the web content is organized and stored in a dedicated area
or areas clearly identified as being archived. The definition is
meant to capture historic web content that, while outdated or
superfluous, is maintained unaltered in a dedicated archived area
for reference, research, or recordkeeping. The term is used in the
exception set forth in Sec. 35.201(a). The Department provides a
more detailed explanation of the application of the exception in the
section-by-section analysis of Sec. 35.201(a).
The Department made several revisions to the definition of
``archived web content'' from the notice of proposed rulemaking
(``NPRM''). The Department added a new part to the definition to
help clarify the scope of content covered by the definition and
associated exception. The new part of the definition, the first
part, specifies that archived web content is limited to three types
of historic content: web content that was created before the date
the public entity is required to comply with subpart H of this part;
web content that reproduces paper documents created before the date
the public entity is required to comply with subpart H; and web
content that reproduces the contents of other physical media created
before the date the public entity is required to comply with subpart
H.
Web content that was created before the date a public entity is
required to comply with subpart H of this part satisfies the first
part of the definition. In determining the date web content was
created, the Department does not intend to prohibit public entities
from making minor adjustments to web content that was initially
created before the relevant compliance dates specified in Sec.
35.200(b), such as by redacting personally identifying information
from web content as necessary before it is posted to an archive,
even if the adjustments are made after the compliance date. In
contrast, if a public entity makes substantial changes to web
content after the date the public entity is required to comply with
subpart H, such as by adding, updating, or rearranging content
before it is posted to an archive, the content would likely no
longer meet the first part of the definition. If the public entity
later alters or updates the content after it is posted in an
archive, the content would not meet the third part of the definition
of ``archived web content'' and it would generally need to conform
to WCAG 2.1 Level AA.
Web content that reproduces paper documents or that reproduces
the contents of other physical media would also satisfy the first
part of the definition if the paper documents or the contents of the
other physical media were created before the date the public entity
is required to comply with subpart H of this part. Paper documents
include various records that may have been printed, typed,
handwritten, drawn, painted, or otherwise marked on paper.
Videotapes, audiotapes, film negatives, CD-ROMs, and DVDs are
examples of physical media. The Department anticipates that public
entities may identify or discover historic paper documents or
historic content contained on physical media that they wish to post
in an online archive following the time they are required to comply
with subpart H. For example, a State agricultural agency might move
to a new building after the date it is required to comply with
subpart H and discover a box in storage that contains
[[Page 31339]]
hundreds of paper files and photo negatives from 1975 related to
farms in the state at that time. If the agency reproduced the
documents and photos from the film negatives as web content, such as
by scanning the documents and film negatives and saving the scans as
PDF documents that are made available online, the resulting PDF
documents would meet the first part of the definition of ``archived
web content'' because the underlying paper documents and photos were
created in 1975. The Department reiterates that it does not intend
to prohibit public entities from making minor adjustments to web
content before posting it to an archive, such as by redacting
personally identifying information from paper documents. Therefore,
the State agricultural agency could likely redact personally
identifying information about farmers from the scanned PDFs as
necessary before posting them to its online archive. But, if the
agency were to make substantial edits to PDFs, such as by adding,
updating, or rearranging content before posting the PDFs to its
archive, the PDFs would likely not meet the first part of the
definition of ``archived web content'' because, depending on the
circumstances, they may no longer be a reproduction of the historic
content. In addition, if the agency later altered or updated the
PDFs after they were posted in an archive, the content would not
meet the third part of the definition of ``archived web content''
and it would generally need to conform to WCAG 2.1 Level AA.
The Department added the first part to the definition of
``archived web content'' after considering all the comments it
received. In the NPRM, the Department sought feedback about the
archived web content exception, including whether there are
alternatives to the exception that the Department should consider or
additional limitations that should be placed on the exception.\1\
Commenters suggested various ways to add a time-based limitation to
the definition or exception. For example, some commenters suggested
that archived content should be limited to content created or posted
before a certain date, such as the date a public entity is required
to comply with subpart H of this part; there should be a certain
time period before web content can be archived, such as two years
after the content is created or another time frame based on
applicable laws related to public records; the exception should
expire after a certain period of time; or public entities should
have to remediate archived web content over time, prioritizing
content that is most important for members of the public. In
contrast, another commenter suggested that the exception should
apply to archived web content posted after the date the public
entity is required to comply with subpart H if the content is of
historical value and only minimally altered before posting.
---------------------------------------------------------------------------
\1\ 88 FR 51967.
---------------------------------------------------------------------------
After reviewing the comments, the Department believes the first
part of the definition sets an appropriate time-based limitation on
the scope of content covered by the definition and exception that is
consistent with the Department's stated intent in the NPRM. In the
NPRM, the Department explained that the definition of ``archived web
content'' and the associated exception were intended to cover
historic content that is outdated or superfluous.\2\ The definition
in Sec. 35.104, which is based on whether the relevant content was
created before the date a public entity is required to comply with
subpart H of this part, is now more aligned with, and better
situated to implement, the Department's intent to cover historic
content. The Department believes it is appropriate to include a
time-based limitation in the definition, rather than to add new
criteria stating that content must be historic, outdated, or
superfluous, because it is more straightforward to differentiate
content based on the date the content was created. Therefore, there
will be greater predictability for individuals with disabilities and
public entities as to which content is covered by the exception.
---------------------------------------------------------------------------
\2\ 88 FR 51966.
---------------------------------------------------------------------------
The Department declines to establish time-based limitations for
when content may be posted to an archive or to otherwise set an
expiration date for the exception. As discussed elsewhere in this
appendix, the Department recognizes that many public entities will
need to carefully consider the design and structure of their web
content before dedicating a certain area or areas for archived
content, and that, thereafter, it will take time for public entities
to identify all content that meets the definition of ``archived web
content'' and post it in the newly created archived area or areas.
The archived web content exception thus provides public entities
flexibility as to when they will archive web content, so long as the
web content was created before the date the public entity was
required to comply with subpart H of this part or the web content
reproduces paper documents or the contents of other physical media
created before the date the public entity was required to comply
with subpart H. In addition, the Department does not believe it is
necessary to establish a waiting period before newly created web
created content can be posted in an archive. New content created
after the date a public entity is required to comply with subpart H
will generally not meet the first part of the definition of
``archived web content.'' In the limited circumstances in which
newly created web content could meet the first part of the
definition because it reproduces paper documents or the contents of
other physical media created before the date the public entity is
required to comply with subpart H, the Department believes the scope
of content covered by the exception is sufficiently limited by the
second part of the definition: whether the content is retained
exclusively for reference, research, or recordkeeping.
In addition to adding a new first part to the definition of
``archived web content,'' the Department made one further change to
the definition from the NPRM. In the NPRM, what is now the second
part of the definition pertained to web content that is
``maintained'' exclusively for reference, research, or
recordkeeping. The word ``maintained'' is now replaced with
``retained.'' The revised language is not intended to change or
limit the coverage of the definition. Rather, the Department
recognizes that the word ``maintain'' can have multiple relevant
meanings. In some circumstances, ``maintain'' may mean ``to continue
in possession'' of property, whereas in other circumstances it might
mean ``to engage in general repair and upkeep'' of property.\3\ The
Department uses the word ``maintain'' elsewhere in the title II
regulation, at Sec. 35.133(a), consistent with the latter
definition. In contrast, the third part of the definition for
``archived web content'' specifies that content must not be altered
or updated after the date of archiving. Such alterations or updates
could be construed as repair or upkeep, but that is not what the
Department intended to convey with its use of the word
``maintained'' in this provision. To avoid confusion about whether a
public entity can alter or update web content after it is archived,
the Department instead uses the word ``retained,'' which has a
definition synonymous with the Department's intended use of
``maintain'' in the NPRM.\4\
---------------------------------------------------------------------------
\3\ Maintain, Black's Law Dictionary (11th ed. 2019).
\4\ See Retain, Black's Law Dictionary (11th ed. 2019) (``To
hold in possession or under control; to keep and not lose, part
with, or dismiss.'').
---------------------------------------------------------------------------
Commenters raised concerns about several aspects of the
definition of ``archived web content.'' With respect to the second
part of the definition, commenters stated that the definition does
not clearly articulate when content is retained exclusively for
reference, research, or recordkeeping. Commenters stated that the
definition could be interpreted inconsistently, and it could be
understood to cover important information that should be accessible.
For example, commenters were concerned that web content containing
public entities' past meeting minutes where key decisions were made
would qualify as archived content, as well as web content containing
laws, regulations, court decisions, or prior legal interpretations
that are still relevant. Therefore, commenters suggested that the
definition should not cover recordkeeping documents, agendas,
meeting minutes, and other related documents at all. One commenter
recommended adding to the definition to clarify that it does not
apply to content a public entity uses to offer a current service,
program, or activity, and another commenter suggested that content
should be archived depending on how frequently members of the public
seek to access the content. One commenter also stated that the
Department is left with the responsibility to determine whether web
content is appropriately designated as archived when enforcing
subpart H of this part in the future, and the commenter believed
that this enforcement may be insufficient to avoid public entities
evading their responsibilities under subpart H. Another commenter
recommended that the Department should conduct random audits to
determine if public entities are properly designating archived web
content.
The Department's revised definition of ``archived web content,''
and specifically the new first part of the definition, make clear
that the definition only pertains to content created before the date
the public entity is
[[Page 31340]]
required to comply with subpart H of this part. Therefore, new
content such as agendas, meeting minutes, and other documents
related to meetings that take place after the public entity is
required to comply with subpart H would likely not meet all parts of
the definition of ``archived web content.'' This revision to the
regulatory text is responsive to comments raising the concern that
current and newly created content might be erroneously labeled as
archived based on perceived ambiguity surrounding when content is
being retained solely for ``reference, research, or recordkeeping.''
Given the wide variety of web content that public entities provide
or make available, the Department does not believe it is advisable
to add additional, more specific language in the definition about
what types of content are covered. The Department also believes it
would be difficult to create a more specific and workable definition
for ``archived web content'' based on how frequently members of the
public seek to view certain content given the wide variation in the
types and sizes of public entities and the volume of their web
traffic. Whether web content is retained exclusively for reference,
research, or recordkeeping will depend on the facts of the
particular situation. Based on some of the examples of web content
that commenters discussed in connection with the definition, the
Department notes that if a public entity posts web content that
identifies the current policies or procedures of the public entity,
or posts web content containing or interpreting applicable laws or
regulations related to the public entity, that web content is
unlikely to be covered by the exception. This is because the content
is notifying members of the public about their ongoing rights and
responsibilities. It therefore is not, as the definition requires,
being used exclusively for reference, research, or recordkeeping.
Commenters also raised concerns about the fourth part of the
definition of ``archived web content,'' which requires archived web
content to be stored in a dedicated area or areas clearly identified
as being archived. Some commenters did not believe public entities
should be required to place archived web content in a dedicated area
or areas clearly identified as being archived in order to be covered
by the exception at Sec. 35.201(a). Commenters stated that public
entities should retain flexibility in organizing and storing files
according to how their web content is designed and structured, and
it might not be clear to members of the public to look for content
in an archive depending on the overall makeup of the web content.
Commenters also stated that it would be burdensome to create an
archive area, identify web content for the archive, and move the
content into the archive. One commenter stated that public entities
might remove content rather than move it to a dedicated archive.
Commenters instead suggested that the web content itself could be
individually marked as archived regardless of where it is posted.
One commenter also requested the Department clarify that the term
``area'' includes ``websites'' and ``repositories'' where archived
web content is stored.
After carefully weighing these comments, the Department has
decided not to change the fourth part of the definition for
``archived web content.'' The Department believes storing archived
web content in a dedicated area or areas clearly identified as being
archived will result in the greatest predictability for individuals
with disabilities about which web content they can expect to conform
to WCAG 2.1 Level AA. However, the Department notes that it did not
identify specific requirements about the structure of an archived
area, or how to clearly identify an area as being archived, in order
to provide public entities greater flexibility when complying with
subpart H of this part. For example, in some circumstances a public
entity may wish to create separate web pages or websites to store
archived web content. In other circumstances, a public entity may
wish to clearly identify that a specific section on a specific web
page contains archived web content, even if the web page also
contains non-archived content in other separate sections. However
public entities ultimately decide to store archived web content, the
Department reiterates that predictability for individuals with
disabilities is paramount. To this end, the label or other
identification for a dedicated archived area or areas must be clear
so that individuals with disabilities are able to detect when there
is content they may not be able to access. Whether a particular
dedicated area is clearly identified as being archived will, of
course, depend on the facts of the particular situation. The
Department also emphasizes that the existence of a dedicated area or
areas for archived content must not interfere with the accessibility
of other web content that is not archived.
Some commenters also recommended an alternative definition of
``archived web content'' that does not include the second or fourth
parts of the definition. Commenters proposed that archived web
content should be defined as web content that (1) was provided or
made available prior to the effective date of the final rule and (2)
is not altered or updated after the effective date of the final
rule. While the Department agrees that a time-based distinction is
appropriate and has therefore added the first part to the
definition, the Department does not believe the commenters' approach
suggested here is advisable because it has the potential to cause a
significant accessibility gap for individuals with disabilities if
public entities rely on web content that is not regularly updated or
changed. Under the commenters' proposed definition, the exception
for archived web content might cover important web content used for
reasons other than reference, research, or recordkeeping if the
content has not been updated or altered. As discussed in more detail
in the section-by-section analysis of Sec. 35.201(a), the purpose
of the exception for archived web content is to help public entities
focus their resources on making accessible the most important
materials that people use most widely and consistently, rather than
historic or outdated web content that is only used for reference,
research, or recordkeeping. Furthermore, as discussed in the
preceding paragraph, the Department believes the fourth part of the
definition is necessary to ensure the greatest predictability for
individuals with disabilities about which web content they can
expect to conform to WCAG 2.1 Level AA.
Commenters made other suggestions related to the definition of
and exception for ``archived web content.'' The Department has
addressed these comments in the discussion of the Sec. 35.201(a)
archived web content exception in the section-by-section analysis.
``Conventional Electronic Documents''
The Department is including in Sec. 35.104 a definition for
``conventional electronic documents.'' ``Conventional electronic
documents'' are defined as web content or content in mobile apps
that is in the following electronic file formats: portable document
formats, word processor file formats, presentation file formats, and
spreadsheet file formats. The definition thus provides an exhaustive
list of electronic file formats that constitute conventional
electronic documents. Examples of conventional electronic documents
include: Adobe PDF files (i.e., portable document formats),
Microsoft Word files (i.e., word processor files), Apple Keynote or
Microsoft PowerPoint files (i.e., presentation files), and Microsoft
Excel files (i.e., spreadsheet files). The term ``conventional
electronic documents'' is used in Sec. 35.201(b) to provide an
exception for certain such documents that are available as part of a
public entity's web content or mobile apps before the compliance
date of subpart H of this part, unless such documents are currently
used to apply for, gain access to, or participate in the public
entity's services, programs, or activities. The term is also used in
Sec. 35.201(d) to provide an exception for certain individualized,
password-protected or otherwise secured conventional electronic
documents, and is addressed in more detail in the discussion in the
section-by-section analysis of Sec. 35.201(b) and (d). The
definition of ``conventional electronic documents'' covers documents
created or saved as electronic files that are commonly available in
an electronic form on public entities' web content and mobile apps
and that would have been traditionally available as physical printed
output.
In the NPRM, the Department asked whether it should craft a more
flexible definition of ``conventional electronic documents'' instead
of a definition based on an exhaustive list of file formats.\5\ In
response, the Department heard a range of views from commenters.
Some commenters favored a broader and more generalized definition
instead of an exhaustive list of file formats. For example,
commenters suggested that the Department could describe the
properties of conventional electronic documents and provide a non-
exhaustive list of examples of such documents, or the definition
could focus on the importance of the content contained in a document
rather than the file format. Some commenters favoring a broader
definition reasoned that technology evolves rapidly, and the
exhaustive list of file formats the Department
[[Page 31341]]
identified might not keep pace with technological advancements.
---------------------------------------------------------------------------
\5\ 88 FR 51958, 51968.
---------------------------------------------------------------------------
Other commenters preferred the Department's approach of
identifying an exhaustive list of file formats. Some commenters
noted that an exhaustive list provides greater clarity and
predictability, which assists public entities in identifying their
obligations under subpart H of this part. Some commenters suggested
that the Department could provide greater clarity by identifying
specific file types in the regulatory text rather than listing file
formats (e.g., the Department might specify the Microsoft Word
``.docx'' file type rather than ``word processor file formats'').
After considering all the comments, the Department declines to
change its approach to defining conventional electronic documents.
The Department expects that a more flexible definition would result
in less predictability for both public entities and individuals with
disabilities, especially because the Department does not currently
have sufficient information about how technology will develop in the
future. The Department seeks to avoid such uncertainty because the
definition of ``conventional electronic documents'' sets the scope
of two exceptions, Sec. 35.201(b) and (d). The Department carefully
balanced benefits for individuals with disabilities with the
challenges public entities face in making their web content and
mobile apps accessible in compliance with subpart H of this part
when crafting these exceptions, and the Department does not want to
inadvertently expand or narrow the exceptions with a less
predictable definition of ``conventional electronic documents.''
Unlike in the NPRM, the definition of ``conventional electronic
documents'' does not include database file formats. In the NPRM, the
Department solicited comments about whether it should add any file
formats to, or remove any file formats from, the definition of
``conventional electronic documents.'' While some commenters
supported keeping the list of file formats in the proposed
definition as is, the Department also heard a range of views from
other commenters. Some commenters, including public entities and
trade groups representing public accommodations, urged the
Department to add additional file formats to the definition of
``conventional electronic documents.'' For example, commenters
recommended adding image files, video files, audio files, and
electronic books such as EPUB (electronic publications) or DAISY
(Digital Accessible Information System) files. Commenters noted that
files in such other formats are commonly made available by public
entities and they can be burdensome to remediate. Commenters
questioned whether there is a basis for distinguishing between the
file formats included in the definition and other file formats not
included in the definition.
Other commenters believed the list of file formats included in
the proposed definition of ``conventional electronic documents'' was
too broad. A number of disability advocacy groups stated that
certain document formats included in the definition are generally
easily made accessible. Therefore, commenters did not believe such
documents should generally fall within the associated exceptions
under Sec. 35.201(b) and (d). Some commenters also stated that
there could be confusion about accessibility requirements for
database files because database files and some spreadsheet files may
include data that are not primarily intended to be human-readable.
The commenters stated that in many cases such content is instead
intended to be opened and analyzed with other special software
tools. The commenters pointed out that data that is not primarily
intended to be human-readable is equally accessible for individuals
with disabilities and individuals without disabilities, and they
recommended clarifying that the accessibility requirements do not
apply to such data.
Some commenters suggested that certain file formats not included
in the definition of ``conventional electronic documents,'' such as
images or videos, may warrant different treatment altogether. For
example, one public entity stated that it would be better to place
images and multimedia in a separate and distinct category with a
separate definition and relevant technical standards where needed to
improve clarity. In addition, a disability advocacy organization
stated that images do not need to be included in the definition and
covered by the associated exceptions because public entities can
already uniquely exempt this content in some circumstances by
marking it as decorative, and it is straightforward for public
entities to add meaningful alternative text to important images and
photos that are not decorative.
After considering all the comments, the Department agrees that
database file formats should not be included in the definition of
``conventional electronic documents.'' The Department now
understands that database files may be less commonly available
through public entities' web content and mobile apps than other
types of documents. To the extent such files are provided or made
available by public entities, the Department understands that they
would not be readable by either individuals with disabilities or
individuals without disabilities if they only contain data that are
not primarily intended to be human-readable. Therefore, there would
be limited accessibility concerns, if any, that fall within the
scope of subpart H of this part associated with documents that
contain data that are not primarily intended to be human-readable.
Accordingly, the Department believes it could be confusing to
include database file formats in the definition. However, the
Department notes that while there may be limited accessibility
concerns, if any, related to database files containing data that are
not primarily intended to be human-readable, public entities may
utilize these data to create outputs for web content or mobile apps,
such as tables, charts, or graphs posted on a web page, and those
outputs would be covered by subpart H unless they fall into another
exception.
The Department declines to make additional changes to the list
of file formats included in the definition of ``conventional
electronic documents.'' After reviewing the range of different views
expressed by commenters, the Department believes the current list
strikes the appropriate balance between ensuring access for
individuals with disabilities and feasibility for public entities so
that they can comply with subpart H of this part. The list included
in the definition is also aligned with the Department's intention to
cover documents that public entities commonly make available in
either an electronic form or that would have been traditionally
available as physical printed output. If public entities provide and
make available files in formats not included in the definition, the
Department notes that those other files may qualify for the
exception in Sec. 35.201(a) if they meet the definition for
``archived web content,'' or the exception in Sec. 35.201(e) for
certain preexisting social media posts if they are covered by that
exception's description. To the extent those other files are not
covered by one of the exceptions in Sec. 35.201, the Department
also notes that public entities would not be required to make
changes to those files that would result in a fundamental alteration
in the nature of a service, program, or activity, or impose undue
financial and administrative burdens, as discussed in the section-
by-section analysis of Sec. 35.204.
With respect to the comment suggesting that it would be better
to place images and multimedia in a separate and distinct category
with a separate definition and relevant technical standards where
needed to improve clarity, the Department notes that the WCAG
standards were designed to be ``technology neutral.'' \6\ This means
that they are designed to be broadly applicable to current and
future web technologies.\7\ Accordingly, the Department believes
WCAG 2.1 Level AA is the appropriate standard for other file formats
not included in the definition of ``conventional electronic
documents'' because WCAG 2.1 was crafted to address those other file
formats as well.
---------------------------------------------------------------------------
\6\ W3C, Introduction to Understanding WCAG, https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU] (June
20, 2023).
\7\ See W3C, Understanding Techniques for WCAG Success Criteria,
https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques
[https://perma.cc/AMT4-XAAL] (June 20, 2023).
---------------------------------------------------------------------------
The Department also recognizes that, as some commenters pointed
out, this part treats conventional electronic documents differently
than WCAG 2.1, in that conventional electronic documents are
included in the definition of ``web content'' in Sec. 35.104, while
WCAG 2.1 does not include those documents in its definition of ``web
content.'' The Department addresses these comments in its analysis
of the definition of ``web content.''
As discussed in the preceding paragraphs, the scope of the
associated exception for preexisting conventional electronic
documents, at Sec. 35.201(b), is based on the definition of
``conventional electronic documents.'' The definition applies to
conventional electronic documents that are part of a public entity's
web content or mobile apps. The exception also applies to
``conventional electronic documents'' that are part of a public
entity's web content or mobile apps, but only if the documents were
provided or made available before the date
[[Page 31342]]
the public entity is required to comply with subpart H of this part.
The Department received a comment indicating there may not be a
logical connection between conventional electronic documents and
mobile apps; therefore, according to the comment, the exception
should not apply to conventional electronic documents that appear in
mobile apps. However, the Department also received comments from
disability advocacy organizations and public entities confirming the
connection between the two technologies and stating that some mobile
apps allow users to access conventional electronic documents. The
Department will retain its approach of including ``content in mobile
apps'' in the definition of ``conventional electronic documents''
given that the Department agrees that some mobile apps already use
conventional electronic documents.
``Mobile Applications (`apps')''
Section 35.104 defines ``mobile apps'' as software applications
that are downloaded and designed to run on mobile devices, such as
smartphones and tablets. For purposes of this part, mobile apps
include, for example, native apps built for a particular platform
(e.g., Apple iOS, Google Android) or device and hybrid apps using
web components inside native apps. This part will retain the
definition of ``mobile apps'' from the NPRM without revision.
The Department received very few comments on this definition.
One commenter noted that the Department does not appear to consider
other technologies that may use mobile apps such as wearable
technology. The Department notes that the definition's examples of
devices that use mobile apps (i.e., smartphones and tablets) is a
non-exhaustive list. Subpart H of this part applies to all mobile
apps that a public entity provides or makes available, regardless of
the devices on which the apps are used. The definition therefore may
include mobile apps used on wearable technology. Accordingly, the
proposed rule's definition of ``mobile apps'' will remain unchanged
in this part.
``Special District Government''
The Department has added a definition for ``special district
government.'' The term ``special district government'' is used in
Sec. 35.200(b) and is defined in Sec. 35.104 to mean a public
entity--other than a county, municipality, township, or independent
school district--authorized by State law to provide one function or
a limited number of designated functions with sufficient
administrative and fiscal autonomy to qualify as a separate
government and whose population is not calculated by the United
States Census Bureau in the most recent decennial Census or Small
Area Income and Poverty Estimates. Because special district
governments do not have populations calculated by the United States
Census Bureau and are not necessarily affiliated with public
entities that do have such populations, their population sizes are
unknown. A special district government may include, for example, a
mosquito abatement district, utility district, transit authority,
water and sewer board, zoning district, or other similar
governmental entity that may operate with administrative and fiscal
independence. This definition is drawn in part from the U.S. Census
Bureau definition \8\ for purposes of setting a compliance time
frame for a subset of public entities. It is not meant to alter the
existing definition of ``public entity'' in Sec. 35.104 in any way.
The Department made one grammatical correction in this part to
remove an extra ``or'' from the definition as proposed in the
NPRM.\9\ However, the substance of the definition is unchanged from
the Department's proposal in the NPRM.
---------------------------------------------------------------------------
\8\ See U.S. Census Bureau, Special District Governments,
https://www.census.gov/glossary/?term=Special+district+governments
[https://perma.cc/8V43-KKL9] (last visited Feb. 26, 2024).
\9\ 88 FR 52018.
---------------------------------------------------------------------------
``Total Population''
Section 35.200 provides the dates by which public entities must
begin complying with the technical standard. The compliance dates
are generally based on a public entity's total population, as
defined in this part. The Department has added a definition for
``total population'' in Sec. 35.104. If a public entity has a
population calculated by the United States Census Bureau in the most
recent decennial Census, the public entity's total population as
defined in this part is the population estimate for that public
entity as calculated by the United States Census Bureau in the most
recent decennial Census. If a public entity is an independent school
district, or an instrumentality of an independent school district,
the entity's total population as defined in this part is the
population estimate for the independent school district as
calculated by the United States Census Bureau in the most recent
Small Area Income and Poverty Estimates. If a public entity, other
than a special district government or an independent school
district, does not have a population estimate calculated by the
United States Census Bureau in the most recent decennial Census, but
is an instrumentality or a commuter authority of one or more State
or local governments that do have such a population estimate, the
entity's total population as defined in this part is the combined
decennial Census population estimates for any State or local
governments of which the public entity is an instrumentality or
commuter authority. The total population for the National Railroad
Passenger Corporation as defined in this part is the population
estimate for the United States as calculated by the United States
Census Bureau in the most recent decennial Census. The terminology
used in the definition of ``total population'' draws from the
terminology used in the definition of ``public entity'' in title II
of the ADA \10\ and the existing title II regulation,\11\ and all
public entities covered under title II of the ADA are covered by
subpart H of this part. This part does not provide a method for
calculating the total population of special district governments,
because Sec. 35.200 provides that all special district governments
have three years following the publication of the final rule to
begin complying with the technical standard, without reference to
their population.
---------------------------------------------------------------------------
\10\ 42 U.S.C. 12131(1).
\11\ Section 35.104.
---------------------------------------------------------------------------
The regulatory text of this definition has been revised from the
NPRM for clarity. The regulatory text of this definition previously
provided that ``total population'' generally meant the population
estimate for a public entity as calculated by the United States
Census Bureau in the most recent decennial Census. Because the
decennial Census does not include population estimates for public
entities that are independent school districts, the regulatory text
in the NPRM made clear that for independent school districts,
``total population'' would be calculated by reference to the
population estimates as calculated by the United States Census
Bureau in the most recent Small Area Income and Poverty Estimates.
In recognition of the fact that some public entities do not have
population estimates calculated by the United States Census Bureau,
the preamble to the NPRM stated that if a public entity does not
have a specific Census-defined population, but belongs to another
jurisdiction that does, the population of the entity is determined
by the population of the jurisdiction to which the entity
belongs.\12\ Although the preamble included this clarification, the
Department received feedback that the regulatory text of this
definition did not make clear how to calculate total population for
public entities that do not have populations calculated by the
United States Census Bureau. Accordingly, the Department has revised
the regulatory text of the definition for clarity.
---------------------------------------------------------------------------
\12\ 88 FR 51948, 51949, 51958 (Aug. 4, 2023).
---------------------------------------------------------------------------
The revised regulatory text of this definition retains the
language from the definition in the NPRM with respect to public
entities that have populations calculated in the decennial Census
and independent school districts that have populations calculated in
the Small Area Income and Poverty Estimates. However, the revised
regulatory text of this definition incorporates the approach
described in the preamble of the NPRM with respect to how public
entities that do not have populations calculated by the United
States Census Bureau in the most recent decennial Census can
determine their total populations as defined in this part. As the
revised definition states, if a public entity, other than a special
district government or independent school district, does not have a
population estimate calculated by the United States Census Bureau in
the most recent decennial Census, but is an instrumentality or a
commuter authority of one or more State or local governments that do
have such a population estimate, the total population for the public
entity is determined by reference to the combined decennial Census
population estimates for any State or local governments of which the
public entity is an instrumentality or commuter authority. For
example, the total population of a county library is the population
of the county of which the library is an instrumentality. The
revised definition also makes clear that if a public entity is an
instrumentality of an independent school district, the
instrumentality's population is determined
[[Page 31343]]
by reference to the population estimate for the independent school
district as calculated in the most recent Small Area Income and
Poverty Estimates. The revised definition also states that the total
population of the National Railroad Passenger Corporation is
determined by reference to the population estimate for the United
States as calculated by the United States Census Bureau in the most
recent decennial Census. The revisions to the definition do not
change the scope of this part or the time frames that public
entities have to comply with subpart H of this part; they simply
provide additional clarity for public entities on how to determine
which compliance time frame applies. The Department expects that
these changes will help public entities better understand the time
frame in which they must begin complying with the technical
standard. Further discussion of this topic, including discussion of
comments, can be found in the section-by-section analysis of Sec.
35.200, under the heading ``Requirements by Entity Size.''
``User Agent''
The Department has added a definition for ``user agent.'' The
definition exactly matches the definition of ``user agent'' in WCAG
2.1.\13\ WCAG 2.1 includes an accompanying illustration, which
clarifies that the definition of ``user agent'' means web browsers,
media players, plug-ins, and other programs--including assistive
technologies--that help in retrieving, rendering, and interacting
with web content.\14\
---------------------------------------------------------------------------
\13\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1
(June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and
https://perma.cc/UB8A-GG2F.
\14\ Id.
---------------------------------------------------------------------------
The Department added this definition to this part to ensure
clarity of the term ``user agent,'' now that the term appears in the
definition of ``web content.'' As the Department explains further in
discussing the definition of ``web content'' in this section-by-
section analysis, the Department has more closely aligned the
definition of ``web content'' in this part with the definition in
WCAG 2.1. Because this change introduced the term ``user agent''
into the title II regulation, and the Department does not believe
this is a commonly understood term, the Department has added the
definition of ``user agent'' provided in WCAG 2.1 to this part. One
commenter suggested that the Department add this definition in this
part, and the Department also believes that adding this definition
in this part is consistent with the suggestions of many commenters
who proposed aligning the definition of ``web content'' with the
definition in WCAG 2.1, as explained further in the following
section.
``WCAG 2.1''
The Department is including a definition of ``WCAG 2.1.'' The
term ``WCAG 2.1'' refers to the 2018 version of the voluntary
guidelines for web accessibility, known as the Web Content
Accessibility Guidelines 2.1 (``WCAG 2.1''). W3C, the principal
international organization involved in developing standards for the
web, published WCAG 2.1 in June 2018, and it is available at https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. WCAG 2.1 is discussed in more detail in the section-by-section
analysis of Sec. 35.200.
``Web Content''
Section 35.104 defines ``web content'' as the information and
sensory experience to be communicated to the user by means of a user
agent, including code or markup that defines the content's
structure, presentation, and interactions. Examples of web content
include text, images, sounds, videos, controls, animations, and
conventional electronic documents. The first sentence of the
Department's definition of ``web content'' is aligned with the
definition of ``web content'' in WCAG 2.1.\15\ The second sentence
of the definition gives examples of some of the different types of
information and experiences available on the web. However, these
examples are intended to illustrate the definition and not be
exhaustive. The Department also notes that subpart H of this part
covers the accessibility of public entities' web content regardless
of whether the web content is viewed on desktop computers, laptops,
smartphones, or elsewhere.
---------------------------------------------------------------------------
\15\ See W3C, Web Content Accessibility Guidelines 2.1 (June 5,
2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/and https://perma.cc/UB8A-GG2F (see definition of ``content (Web content)'').
WCAG 2.1 defines ``user agent'' as ``any software that retrieves and
presents Web content for users,'' such as web browsers, media
players, plug-ins, and assistive technologies. See W3C, Web Content
Accessibility Guidelines 2.1 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F (see
definition of ``user agent'').
---------------------------------------------------------------------------
The Department slightly revised its definition from the proposed
definition in the NPRM, which was based on the WCAG 2.1 definition
but was slightly less technical and intended to be more easily
understood by the public generally. The Department's proposed rule
defined ``web content'' as information or sensory experience--
including the encoding that defines the content's structure,
presentation, and interactions--that is communicated to the user by
a web browser or other software. Examples of web content include
text, images, sounds, videos, controls, animations, and conventional
electronic documents.\16\ In this part, the first sentence of this
definition is revised to provide that web content is the information
and sensory experience to be communicated to the user by means of a
user agent, including code or markup that defines the content's
structure, presentation, and interactions. The sentence is now
aligned with the WCAG 2.1 definition of web content (sometimes
referred to as ``content'' by WCAG).\17\ The Department has also
added a definition of ``user agent'' in this part, as explained in
the section-by-section analysis.
---------------------------------------------------------------------------
\16\ 88 FR 52018.
\17\ See W3C, Web Content Accessibility Guidelines 2.1 (June 5,
2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.
---------------------------------------------------------------------------
The Department decided to more closely align the definition of
``web content'' in this part with the definition in WCAG 2.1 to
avoid confusion, to ensure consistency in the application of WCAG
2.1, and to assist technical experts in implementing subpart H of
this part. Consistent with the suggestion of several commenters, the
Department believes this approach minimizes possible inadvertent
conflicts between the type of content covered by the Department's
regulatory text and the content covered by WCAG 2.1. Further, the
Department believes it is prudent to more closely align these
definitions because the task of identifying relevant content to be
made accessible will often fall on technical experts. The Department
believes technical experts will be familiar with the definition of
``web content'' in WCAG 2.1, and creating a modified definition will
unnecessarily increase effort by requiring technical experts to
familiarize themselves with a modified definition. The Department
also understands that there are likely publicly available
accessibility guidance documents and toolkits on the WCAG 2.1
definition that could be useful to public entities, and using a
different definition of ``web content'' could call into question
public entities' ability to rely on those tools, which would create
unnecessary work for public entities. To incorporate this change,
the Department removed language from the proposed rule addressing
the encoding that defines the web content's structure, presentation,
and interactions, because the Department believed the more prudent
approach was to more closely align this definition with the
definition in WCAG 2.1. However, the Department maintained in its
final definition an additional sentence providing examples of web
content to aid in the public's understanding of this definition.
This may be particularly useful for members of the public without a
technical background.
The Department received many comments supporting the
Department's proposed definition of ``web content'' from public
entities, disability advocates, individuals, and technical and other
organizations. Many of these commenters indicated that the
Department's definition was sufficiently generic and familiar to the
public. The Department believes that the definition in this part
aligns with these comments, since it is intended to mirror the
definition in WCAG 2.1 and cover the same types of content.
Some commenters raised concerns that the scope of the definition
should be broader, arguing that the definition should be extended to
include ``closed'' systems such as kiosks, printers, and point-of-
sale devices. Another organization mistakenly believed that the
examples listed in the definition of ``web content'' were meant to
be exhaustive. The Department wishes to clarify that this list is
not intended to be exhaustive. The Department declines to broaden
the definition of ``web content'' beyond the definition in this part
because the Department seeks in its rulemaking to be responsive to
calls from the public for the Department to provide certainty by
adopting a technical standard State and local government entities
must adhere to for their web content and mobile apps. The Department
thus is limiting its rulemaking
[[Page 31344]]
effort to web content and mobile apps. However, the Department notes
that State and local government entities have existing accessibility
obligations with respect to services, programs, or activities
offered through other types of technology under title II of the
Americans with Disabilities Act (``ADA'') or other laws.\18\ For
example, ``closed'' systems \19\ may need to be made accessible in
accordance with the existing title II regulation, as public entities
have ongoing responsibilities to ensure effective communication,
among other requirements.
---------------------------------------------------------------------------
\18\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160.
\19\ A closed system, or ``closed functionality,'' means that
users cannot attach assistive technology to the system to make the
content accessible, such as with a travel kiosk. See W3C, WCAG2ICT
Overview, https://www.w3.org/WAI/standards-guidelines/wcag/non-web-ict/ [https://perma.cc/XRL6-6Q9Y] (Feb. 2, 2024).
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Some commenters also suggested that the Department narrow the
definition of ``web content.'' A few of these comments came from
trade groups representing public accommodations, and they argued
that the scope of the proposed definition would extend to content
the public entity cannot control or is unable to make accessible due
to other challenges. These commenters also argued that the costs of
making content accessible would be extremely high for the range of
content covered by the definition of ``web content.'' The Department
believes the framework in this part appropriately balances the
considerations implicated by this definition. Public entities can
avail themselves of several exceptions that are intended to reduce
the costs of making content accessible in some cases (such as the
preexisting social media posts exception in Sec. 35.201(e)), and to
address instances where public entities truly do not have control
over content (such as the third-party-posted content exception in
Sec. 35.201(c)). Further, public entities will be able to rely on
the fundamental alteration and undue burdens limitations set out in
Sec. 35.204 where they can satisfy the requirements of those
limitations, and public entities may also be able to use conforming
alternate versions under Sec. 35.202 where it is not possible to
make web content directly accessible due to technical or legal
limitations. The Department believes this approach appropriately
balances the costs of compliance with the significant benefits to
individuals with disabilities of being able to access the services,
programs, and activities of their State and local government
entities.
Some disability advocacy groups suggested that the Department
modify the definition slightly, such as by providing for
``information, sensory or otherwise'' in lieu of ``information and
sensory experience.'' The Department believes the prudent approach
is to closely mirror the definition of ``web content'' in WCAG 2.1
to avoid confusion that could ensue from other differences between
the two definitions. While the Department appreciates that there may
be questions about the application of the definition to specific
factual contexts, the Department believes the definition in WCAG 2.1
is sufficiently clear. The Department can provide further guidance
on the application of this definition as needed.
Some commenters argued that the non-exhaustive list of examples
of web content in this part would include web content that would not
be considered web content under WCAG 2.1. In particular, some
commenters noted that conventional electronic documents are not web
content under WCAG 2.1 because they are not opened or presented
through a user agent. Those commenters said that the Department's
definition of ``web content'' should not include files such as word
processor documents, presentation documents, and spreadsheets, even
if they are downloaded from the web. The commenters further
suggested that this part should split consideration of electronic
document files from web content, similar to the approach they stated
is used in the section 508 standards.\20\ The Department also
reviewed suggestions from commenters that the Department rely on
WCAG guidance explaining how to apply WCAG to non-web information
and communications technologies \21\ and the ISO 14289-1 (``PDF/UA-
1'') \22\ standard related to PDF files. However, other commenters
argued that when electronic documents are viewed in the browser
window, they generally are considered web content and should thus be
held to the same standard as other types of web content. Those
commenters agreed with the Department's decision to include
conventional electronic documents within the definition of ``web
content,'' particularly when the version posted is not open for
editing by the public.
---------------------------------------------------------------------------
\20\ See 29 U.S.C. 794d. A discussion of the section 508
standards is included later in the section-by-section analysis, in
``WCAG 2.0 and Section 508 of the Rehabilitation Act.''
\21\ W3C, WCAG2ICT Overview, https://www.w3.org/WAI/standards-guidelines/wcag/non-web-ict/ [https://perma.cc/XRL6-6Q9Y] (Feb. 2,
2024).
\22\ International Organization for Standardization, ISO 14289-
1:2014; Document management applications; Electronic document file
format enhancement for accessibility; Part 1: Use of ISO 32000-1
(PDF/UA-1) (Dec. 2014), https://www.iso.org/standard/64599.html
[https://perma.cc/S53A-Q3Y2]. One commenter also referred to PDF/UA-
2; however, the Department's understanding is that PDF/UA-2 is still
under development. International Organization for Standardization,
ISO 14289-2; Document management applications; Electronic document
file format enhancement for accessibility; Part 2: Use of ISO 32000-
2 (PDF/UA-2), https://www.iso.org/standard/82278.html [https://perma.cc/3W5L-UJ7J].
---------------------------------------------------------------------------
The Department has considered commenters' views and determined
that conventional electronic documents should still be considered
web content for purposes of this part. The Department has found that
public entities frequently provide their services, programs, or
activities using conventional electronic documents, and the
Department believes this approach will enhance those documents'
accessibility, improving access for individuals with disabilities.
The Department understands commenters' concerns to mean that, in
applying WCAG 2.1 to conventional electronic documents, not all
success criteria may be applicable directly as written. Although the
Department understands that some WCAG 2.1 Level AA success criteria
may not apply as written to conventional electronic documents,\23\
when public entities provide or make available web content and
content in mobile apps, public entities generally must ensure
conformance to the WCAG 2.1 Level AA success criteria to the extent
those criteria can be applied. In determining how to make
conventional electronic documents conform to WCAG 2.1 Level AA,
public entities may find it helpful to consult W3C's guidance on
non-web information and communications technology, which explains
how the WCAG success criteria can be applied to conventional
electronic documents. The Department believes the compliance dates
discussed in Sec. 35.200(b) will provide public entities sufficient
time to understand how WCAG 2.1 Level AA applies to their
conventional electronic documents. The Department will continue to
monitor developments in the accessibility of conventional electronic
documents and issue further guidance as appropriate.
---------------------------------------------------------------------------
\23\ W3C explains in its guidance on non-web information and
communications technology that ``[w]hile WCAG 2.2 was designed to be
technology-neutral, it assumes the presence of a `user agent' such
as a browser, media player, or assistive technology as a means to
access web content. Therefore, the application of WCAG 2.2 to
documents and software in non-web contexts require[s] some
interpretation in order to determine how the intent of each WCAG 2.2
success criterion could be met in these different contexts of use.''
W3C, Guidance on Applying WCAG 2.2 to Non-Web Information and
Communications Technologies (WCAG2ICT): Group Draft Note (Aug. 15,
2023), https://www.w3.org/TR/wcag2ict-22/ [https://perma.cc/2PYA-4RFH]. While this quotation addresses WCAG 2.2, the beginning of the
guidance notes that ``the current draft includes guidance for WCAG
2.1 success criteria.'' Id.
---------------------------------------------------------------------------
Finally, several commenters asked whether this definition would
cover internal, non-public applications, such as web content used
solely by employees. The Department reiterates that subpart H of
this part includes requirements for the web content and mobile apps
provided or made available by public entities within the scope of
title II. While subpart H is not promulgated under title I of the
ADA, it is important to note that compliance with subpart H will not
relieve title II entities of their distinct employment-related
obligations under title I of the ADA, which could include, for
example, accommodations for a web developer with a disability
working for a public entity.
Subpart H--Web and Mobile Accessibility
The Department is creating a new subpart in its title II
regulation. Subpart H of this part addresses the accessibility of
public entities' web content and mobile apps.
Section 35.200 Requirements for Web and Mobile Accessibility
General
Section 35.200 sets forth specific requirements for the
accessibility of web content and mobile apps of public entities.
Section 35.200(a) requires a public entity to ensure that the
following are readily accessible to and usable by individuals with
disabilities: (1) web content that a public entity provides or makes
available, directly
[[Page 31345]]
or through contractual, licensing, or other arrangements; and (2)
mobile apps that a public entity provides or makes available,
directly or through contractual, licensing, or other arrangements.
As detailed in this section, the remainder of Sec. 35.200 sets
forth the specific standards that public entities are required to
meet to make their web content and mobile apps accessible and the
timelines for compliance.
Web Content and Mobile Apps That Public Entities Provide or Make
Available
Section 35.200(a) identifies the scope of content covered by
subpart H of this part. Section 35.200(a)(1) and (2) applies to web
content and mobile apps that a public entity provides or makes
available. The Department intends the scope of Sec. 35.200 to be
consistent with the ``Application'' section of the existing title II
regulation at Sec. 35.102, which states that this part applies to
all services, programs, and activities provided or made available by
public entities. The Department therefore made minor changes to the
language of Sec. 35.200(a)(1) and (2) to make the section more
consistent with Sec. 35.102. In the NPRM, Sec. 35.200(a)(1) and
(2) applied to web content and mobile apps that a public entity
makes available to members of the public or uses to offer services,
programs, or activities to members of the public.\24\ The Department
revised Sec. 35.200(a)(1) and (2) to apply to web content and
mobile apps that a public entity provides or makes available. The
Department also made corresponding revisions to the language of
Sec. 35.200(b)(1) and (2). The Department expects that public
entities will be familiar with the revised language used in Sec.
35.200(a) because it is similar to the language used in Sec.
35.102, and that such familiarity and consistency will result in
less confusion and more predictable access for individuals with
disabilities to the web content and mobile apps of public entities.
The Department notes that the revised language does not change or
limit the coverage of subpart H as compared to the NPRM. Both the
revised language and the NPRM are consistent with the broad coverage
of Sec. 35.102.
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\24\ 88 FR 52018.
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Contractual, Licensing, and Other Arrangements
The general requirements in subpart H of this part apply to web
content or mobile apps that a public entity provides or makes
available directly, as well as those the public entity provides or
makes available ``through contractual, licensing, or other
arrangements.'' The Department expects that the phrase ``directly or
through contractual, licensing, or other arrangements'' will be
familiar to public entities because it comes from existing
regulatory language in title II of the ADA. The section on general
prohibitions against discrimination in the existing title II
regulation says that a public entity, in providing any aid, benefit,
or service, may not, directly or through contractual, licensing, or
other arrangements, on the basis of disability engage in various
forms of discrimination.\25\ The Department intentionally used the
same phrasing in subpart H because here too, where public entities
act through third parties using contractual, licensing, or other
arrangements, they are not relieved of their obligations under
subpart H. For example, when public educational institutions arrange
for third parties to post educational content on their behalf,
public entities will still be responsible for the accessibility of
that content under the ADA.
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\25\ Section 35.130(b)(1) and (3). See also Sec. 35.152(a)
(describing requirements for jails, detention and correctional
facilities, and community correctional facilities).
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Further, the Department emphasizes that the phrase ``provides or
makes available'' in Sec. 35.200 is not intended to mean that Sec.
35.200 only applies when the public entity creates or owns the web
content or mobile app. The plain meaning of ``make available''
includes situations where a public entity relies on a third party to
operate or furnish content. Section 35.200 means that public
entities provide or make available web content and mobile apps even
where public entities do not design or own the web content or mobile
app, if there is a contractual, licensing, or other arrangement
through which the public entity uses the web content or mobile app
to provide a service, program, or activity. For example, even when a
city does not design, create, or own a mobile app allowing the
public to pay for public parking, when a contractual, licensing, or
other arrangement exists between the city and the mobile app
enabling the public to use the mobile app to pay for parking in the
city, the mobile app is covered under Sec. 35.200. This is because
the public entity has contracted with the mobile app to provide
access to the public entity's service, program, or activity (i.e.,
public parking) using a mobile app. The Department believes this
approach will be familiar to public entities, as it is consistent
with the existing framework in title II of the ADA.\26\
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\26\ See Sec. 35.130(b)(1) and (3).
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The Department received many public comments in response to the
NPRM expressing confusion about the extent to which content created
by third parties on behalf of public entities must be made
accessible. Many commenters pointed out that public entities
frequently enter into contracts with vendors or other third parties
to produce web content and mobile apps, such as for websites and
apps used to pay fines and parking fees. Commenters were
particularly concerned because the NPRM contained exceptions for
third-party content, which they thought could indicate that the
Department did not intend to cover any content created by third
parties even when it was created on behalf of public entities.
Commenters urged the Department to make clear in regulatory text
that content created or provided by third-party entities is still
covered by this part where those third parties are acting on behalf
of a public entity.
The Department agrees with these commenters' concerns, so the
Department has modified the language in subpart H of this part to
make clear that the general requirements for web content and mobile
app accessibility apply when the public entity provides or makes
available web content or mobile apps directly or through
contractual, licensing, or other arrangements. The Department
inserted this language in Sec. 35.200(a)(1) and (2) and (b)(1) and
(2). The Department notes that this modification does not change the
coverage of Sec. 35.200 from the NPRM. The Department clarified in
the NPRM that throughout the proposal, a public entity's ``website''
is intended to include not only the websites hosted by the public
entity, but also websites operated on behalf of a public entity by a
third party. For example, public entities sometimes use vendors to
create and host their web content. The Department clarified that
such content would also be covered by the proposed rule.\27\ The
language the Department added to the general requirements provisions
in Sec. 35.200(a)(1) and (2) and (b)(1) and (2) does not change the
meaning of the provisions, but rather ensures clarity about public
entities' obligations when they are acting through a third party,
such as when they contract with a vendor.
---------------------------------------------------------------------------
\27\ 88 FR 51957.
---------------------------------------------------------------------------
Many commenters stated their concern that public entities lack
control over third-party content, even where they contract with
third parties to provide that content. These commenters, generally
from public entities and trade groups representing public
accommodations, argued that seeking to obtain accessible third-party
content provided on behalf of public entities would be challenging.
Some of these commenters said that in theory this type of content
could be controlled by procurement, but that this has not been
realized in practice. While the Department is sympathetic to these
concerns, the Department also received many comments from disability
advocates and individuals with disabilities pointing out the crucial
nature of services provided by third parties on behalf of public
entities. For example, some disability advocates argued that State
and local government entities increasingly rely on third parties to
provide services such as the mapping of zoning areas and city
council districts, fine payment systems, applications for reserving
and paying for public parking, websites to search for available
public housing, and many other examples. The Department believes
individuals with disabilities should not be excluded from these
government services because the services are inaccessible and are
being provided by third parties on behalf of a public entity, rather
than being provided directly by the public entity. Indeed, public
entities have a responsibility to comply with their ADA obligations
even when their services, programs, or activities are being offered
through contractors. Further, while the Department understands the
concerns raised by commenters that current market options make it
challenging for public entities to procure accessible services, the
Department expects that options for accessible third-party services
will grow in response to subpart H of this part. The Department
believes that more accessible options will be readily available by
the time public entities are required to comply with subpart H,
which will make it less difficult for public entities to procure
accessible
[[Page 31346]]
services from contractors. The Department also notes that public
entities will be able to rely on the fundamental alteration and
undue burdens limitations in this part in Sec. 35.204 where they
can satisfy the requirements of that provision.
Further, the Department believes that when public entities
engage in contractual, licensing, or other arrangements with third
parties to provide or make available web content and mobile apps,
public entities can choose to work with providers who can ensure
accessibility, and public entities can also include contract
stipulations that ensure accessibility in third-party services. This
is consistent with the existing obligations public entities face in
other title II contexts where they choose to contract, license, or
otherwise arrange with third parties to provide services, programs,
or activities. The Department acknowledges that some commenters
argued that they face limited existing options in procurement for
accessible third-party services. However, where such circumstances
warrant, public entities can rely on the undue burdens provision
when they can satisfy its requirements. In addition, the Department
expects that options for procuring accessible third-party services
will grow in response to its rulemaking.
Background on WCAG
Since 1994, W3C has been the principal international
organization involved in developing protocols and guidelines for the
web.\28\ W3C develops a variety of voluntary technical standards and
guidelines, including ones relating to privacy, internationalization
of technology, and--relevant here--accessibility. W3C's Web
Accessibility Initiative (``WAI'') has developed voluntary
guidelines for web accessibility, known as WCAG, to help web
developers create web content that is accessible to individuals with
disabilities.\29\
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\28\ W3C, About Us, https://www.w3.org/about/ [https://perma.cc/TQ2W-T377].
\29\ The Department received one comment arguing that the
process by which WCAG is developed is not equitable or inclusive of
members of the disability community. The Department received another
comment commending the Department for adopting WCAG as the technical
standard and noting that WCAG is developed through an open,
transparent, multi-stakeholder consensus process. The Department
carefully considered these comments and concluded that it is
appropriate to adopt a consensus standard promulgated by W3C with
input from various stakeholders, which is also consistent with the
NTTAA. Information from W3C about its process for developing
standards is available at W3C, Web Accessibility Initiative, How WAI
Develops Accessibility Standards Through the W3C Process: Milestones
and Opportunities To Contribute (Sept. 2006), https://www.w3.org/WAI/standards-guidelines/w3c-process/ [https://perma.cc/3BED-RCJP]
(Nov. 2, 2020).
---------------------------------------------------------------------------
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.\30\ WCAG 2.1 was published in June 2018, and is available at
https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.\31\ WCAG 2.1 is built on and is backwards
compatible with WCAG 2.0.\32\ In fact, 38 of the 50 Level A and AA
success criteria in WCAG 2.1 are also included in WCAG 2.0.\33\
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\30\ W3C, Web Content Accessibility Guidelines 2.0 Approved as
ISO/IEC International Standard (Oct. 15, 2012), https://www.w3.org/press-releases/2012/wcag2pas/ [https://perma.cc/JQ39-HGKQ].
\31\ The WAI also published some revisions to WCAG 2.1 on
September 21, 2023. W3C, Web Content Accessibility Guidelines (WCAG)
2.1 (Sept. 21, 2023), https://www.w3.org/TR/WCAG21/ [https://perma.cc/4VF7-NF5F]; see infra note 47. The WAI also published a
working draft of WCAG 3.0 in December 2021. W3C, W3C Accessibility
Guidelines (WCAG) 3.0, https://www.w3.org/TR/wcag-3.0/ (July 24,
2023) [https://perma.cc/7FPQ-EEJ7].
\32\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 0.5
Comparison with WCAG 2.0 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#comparison-with-wcag-2-0 [https://perma.cc/H76F-6L27].
\33\ See id.
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WCAG 2.1 contains four principles that provide the foundation
for web accessibility: the web content must be perceivable,
operable, understandable, and robust.\34\ Testable success criteria
(i.e., requirements for web accessibility that are measurable) are
provided ``to be used where requirements and conformance testing are
necessary such as in design specification, purchasing, regulation
and contractual agreements.'' \35\ Thus, WCAG 2.1 contemplates
establishing testable success criteria that could be used in
regulatory efforts such as this one.
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\34\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
WCAG 2 Layers of Guidance (Sept. 21, 2023), https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance [https://perma.cc/5PDG-ZTJE].
\35\ Id. (emphasis added).
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Technical Standard--WCAG 2.1 Level AA
Section 35.200 requires that public entities' web content and
mobile apps conform to WCAG 2.1 Level AA unless compliance would
result in a fundamental alteration or undue financial and
administrative burdens. As previously mentioned, WCAG 2.1 was
published in June 2018 and is available at https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. To the
extent there are differences between WCAG 2.1 Level AA and the
standards articulated in this part, the standards articulated in
this part prevail. WCAG 2.1 Level AA is not restated in full in this
part but is instead incorporated by reference.
In the NPRM, the Department solicited feedback on the
appropriate technical standard for accessibility for public
entities' web content and mobile apps. The Department received many
public comments from a variety of interested parties in response.
After consideration of the public comments and after its independent
assessment, the Department determined that WCAG 2.1 Level AA is the
appropriate technical standard for accessibility to adopt in subpart
H of this part. WCAG 2.1 Level AA includes success criteria that are
especially helpful for people with disabilities using mobile
devices, people with low vision, and people with cognitive or
learning disabilities.\36\ Support for WCAG 2.1 Level AA as the
appropriate technical standard came from a variety of commenters.
Commenters supporting the adoption of WCAG 2.1 Level AA noted that
is a widely used and accepted industry standard. At least one such
commenter noted that requiring conformance to WCAG 2.1 Level AA
would result in a significant step forward in ensuring access for
individuals with disabilities to State and local government
entities' web content and mobile apps. Commenters noted that WCAG
2.1 Level AA has been implemented, tested, and shown to be a sound
and comprehensive threshold for public agencies. In addition,
because WCAG 2.1 Level AA was published in 2018, web developers and
public entities have had time to familiarize themselves with it. The
WCAG standards were designed to be ``technology neutral.'' \37\ This
means that they are designed to be broadly applicable to current and
future web technologies.\38\ Thus, WCAG 2.1 also allows web and
mobile app developers flexibility and potential for innovation.
---------------------------------------------------------------------------
\36\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 0.5
Comparison with WCAG 2.0 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#comparison-with-wcag-2-0 [https://perma.cc/H76F-6L27].
\37\ W3C, Introduction to Understanding WCAG, https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU] (June 20, 2023).
\38\ See W3C, Understanding Techniques for WCAG Success
Criteria, https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques [https://perma.cc/AMT4-XAAL] (June 20, 2023).
---------------------------------------------------------------------------
The Department expects that adopting WCAG 2.1 Level AA as the
technical standard will have benefits that are important to ensuring
access for individuals with disabilities to public entities'
services, programs, and activities. For example, WCAG 2.1 Level AA
requires that text be formatted so that it is easier to read when
magnified.\39\ This is important, for example, for people with low
vision who use magnifying tools. Without the formatting that WCAG
2.1 Level AA requires, a person magnifying the text might find
reading the text disorienting because they might have to scroll
horizontally on every line.\40\
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\39\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Success Criterion 1.4.10 Reflow (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#reflow [https://perma.cc/TU9U-C8K2].
\40\ See id.
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WCAG 2.1 Level AA also includes success criteria addressing the
accessibility of mobile apps or web content viewed on a mobile
device. For example, WCAG 2.1 Level AA Success Criterion 1.3.4
requires that page orientation (i.e., portrait or landscape) not be
restricted to just one orientation, unless a specific display
orientation is essential.\41\
[[Page 31347]]
This feature is important, for example, for someone who uses a
wheelchair with a tablet attached to it such that the tablet cannot
be rotated.\42\ If web content or mobile apps only work in one
orientation, they will not always work for this individual depending
on how the tablet is oriented, which could render that content or
app unusable for the person.\43\ Another WCAG 2.1 success criterion
requires, in part, that if a function in an app can be operated by
motion--for example, shaking the device to undo typing--that there
be an option to turn off that motion sensitivity.\44\ This could be
important, for example, for someone who has tremors, so that they do
not accidentally undo their typing.\45\
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\41\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Success Criterion 1.3.4 Orientation (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#orientation [https://perma.cc/M2YG-LB9V].
\42\ W3C, What's New in WCAG 2.1, https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/S7VS-J6E4]
(Oct. 5, 2023).
\43\ See id.
\44\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Success Criterion 2.5.4 Motion Actuation (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#motion-actuation [https://perma.cc/D3PS-32NV].
\45\ See W3C, What's New in WCAG 2.1, https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK]
(Oct. 5, 2023).
---------------------------------------------------------------------------
Such accessibility features are critical for individuals with
disabilities to have equal access to their State or local government
entity's services, programs, and activities. This is particularly
true given that using mobile devices to access government services
is commonplace. For example, one source notes that mobile traffic
generally accounts for 58.21 percent of all internet usage.\46\ In
addition, WCAG 2.1 Level AA's incorporation of mobile-related
criteria is important because of public entities' increasing use of
mobile apps in offering their services, programs, or activities.
Public entities are using mobile apps to offer a range of critical
government services--from providing traffic information, to
scheduling trash pickup, to making vaccination appointments.
---------------------------------------------------------------------------
\46\ Andrew Buck, MobiLoud, What Percentage of internet Traffic
is Mobile?, https://www.mobiloud.com/blog/what-percentage-of-internet-traffic-is-mobile#what-percentage-of-internet-traffic-comes-on-mobile-devices [https://perma.cc/2FK6-UDD5] (Feb. 7, 2024).
---------------------------------------------------------------------------
The Department also understands that public entities are likely
already familiar with WCAG 2.1 Level AA or will be able to become
familiar quickly. This is because WCAG 2.1 Level AA has been
available since 2018,\47\ and it builds upon WCAG 2.0, which has
been in existence since 2008 and has been established for years as a
benchmark for accessibility. According to the Department's research,
WCAG 2.1 is already being increasingly used by members of the public
and State and local government entities. At least ten States now
use, or aim to use, WCAG 2.1 as a standard for their websites,
indicating increased familiarity with and use of the standard. In
fact, as commenters also noted, the Department recently included
WCAG 2.1 in several settlement agreements with covered entities
addressing inaccessible websites.\48\
---------------------------------------------------------------------------
\47\ The WAI published some revisions to WCAG 2.1 on September
21, 2023. See W3C, Web Content Accessibility Guidelines (WCAG) 2.1
(Sept. 21, 2023), https://www.w3.org/TR/WCAG21/ [https://perma.cc/4VF7-NF5F]. However, for the reasons discussed in this section,
subpart H of this part requires conformance to the version of WCAG
2.1 that was published in 2018. W3C, Web Content Accessibility
Guidelines 2.1 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. The Department
believes that public entities have not had sufficient time to become
familiar with the 2023 version. Public entities and others also may
not have had an adequate opportunity to comment on whether the
Department should adopt the 2023 version, which was published
shortly before the comment period on the NPRM closed on October 3,
2023. One recent revision to WCAG 2.1 relates to Success Criterion
4.1.1, which addresses parsing. W3C has described Success Criterion
4.1.1 as ``obsolete'' and stated that it ``is no longer needed for
accessibility.'' W3C, WCAG 2 FAQ, https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/24FK-V8LS] (Oct.
5, 2023). According to the 2023 version of WCAG, Success Criterion
4.1.1 ``should be considered as always satisfied for any content
using HTML or XML.'' W3C, Web Content Accessibility Guidelines
(WCAG) 2.1 (Sept. 21, 2023), https://www.w3.org/TR/WCAG21/ [https://perma.cc/4VF7-NF5F]. The Department believes that either adopting
this note from the 2023 version of WCAG or not requiring conformance
to Success Criterion 4.1.1 is likely to create significant
confusion. And although Success Criterion 4.1.1 has been removed
from WCAG 2.2, the Department has decided not to adopt WCAG 2.2 for
the reasons described herein. W3C, WCAG 2 FAQ, https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/45DS-RRYS] (Oct. 5, 2023). Therefore, conformance to Success
Criterion 4.1.1 is still required by subpart H of this part. Public
entities that do not conform to Success Criterion 4.1.1 would
nonetheless be able to rely on Sec. 35.205 to satisfy their
obligations under Sec. 35.200 if the failure to conform to Success
Criterion 4.1.1 would not affect the ability of individuals with
disabilities to use the public entity's web content or mobile app in
the manner described in that section. The Department expects that
this provision will help public entities avoid any unnecessary
burden that might be imposed by Success Criterion 4.1.1.
\48\ See, e.g., Settlement Agreement Under the Americans with
Disabilities Act Between the United States of America and CVS
Pharmacy, Inc. (Apr. 11, 2022), https://www.ada.gov/cvs_sa.pdf
[https://perma.cc/H5KZ-4VVF]; Settlement Agreement Under the
Americans with Disabilities Act Between the United States of America
and Meijer, Inc. (Feb. 2, 2022), https://www.ada.gov/meijer_sa.pdf
[https://perma.cc/5FGD-FK42]; Settlement Agreement Under the
Americans with Disabilities Act Between the United States of America
and the Kroger Co. (Jan. 28, 2022), https://www.ada.gov/kroger_co_sa.pdf [https://perma.cc/6ASX-U7FQ]; Settlement Agreement
Between the United States of America and the Champaign-Urbana Mass
Transit District (Dec. 14, 2021), https://www.justice.gov/d9/case-documents/attachments/2021/12/14/champaign-urbana_sa.pdf [https://perma.cc/66XY-QGA8]; Settlement Agreement Under the Americans with
Disabilities Act Between the United States of America and Hy-Vee,
Inc. (Dec. 1, 2021), https://www.ada.gov/hy-vee_sa.pdf [https://perma.cc/GFY6-BJNE]; Settlement Agreement Under the Americans with
Disabilities Act Between the United States of America and Rite Aid
Corp. (Nov. 1, 2021), https://www.ada.gov/rite_aid_sa.pdf [https://perma.cc/4HBF-RBK2].
---------------------------------------------------------------------------
The Department expects, and heard in public comments, that web
developers and professionals who work for or with public entities
are likely to be familiar with WCAG 2.1 Level AA. And the Department
believes that if public entities and associated web developers are
not already familiar with WCAG 2.1 Level AA, they are at least
likely to be familiar with WCAG 2.0 and will be able to become
acquainted quickly with WCAG 2.1's 12 additional Level A and AA
success criteria. The Department also believes that resources, like
trainings and checklists, exist to help public entities implement or
understand how to implement not only WCAG 2.0 Level AA, but also
WCAG 2.1 Level AA.\49\ Additionally, public entities will have two
or three years, depending on population size, to come into
compliance with subpart H of this part. Therefore, public entities
and web professionals who are not already familiar with WCAG 2.1
will have time to familiarize themselves and plan to ensure that
they will be in compliance with the rule when required.
---------------------------------------------------------------------------
\49\ See, e.g., W3C, Tutorials, https://www.w3.org/WAI/tutorials/ [https://perma.cc/SW5E-WWXV] (Feb. 16, 2023).
---------------------------------------------------------------------------
Alternative Approaches Considered
WCAG 2.2
Commenters suggested that the Department adopt WCAG 2.2 as the
technical standard. WCAG 2.2 was published as a candidate
recommendation--a prefinalization stage--in May 2023, and was
published in final form on October 5, 2023, which was after the NPRM
associated with the final rule was published and after the comment
period closed.\50\ Commenters who supported the adoption of WCAG 2.2
noted that it was likely to be finalized before the final rule would
be published. All of the WCAG 2.0 and WCAG 2.1 success criteria
except for one are included in WCAG 2.2.\51\ WCAG 2.2 also includes
six additional Level A and AA success criteria beyond those included
in WCAG 2.1.\52\ Commenters supporting the adoption of WCAG 2.2
noted that WCAG 2.2's additional success criteria are important for
ensuring accessibility; for example, WCAG 2.2 includes additional
criteria that are important for people with cognitive disabilities
or for those accessing content via mobile apps. Like WCAG 2.1, WCAG
2.2's additional success criteria offer particular benefits for
individuals with low vision, limited manual dexterity, and cognitive
disabilities. For example, Success Criterion 3.3.8, which is a new
criterion under WCAG 2.2, improves access for people with cognitive
disabilities by limiting the use of cognitive function tests, like
solving puzzles, in authentication processes.\53\ Some commenters
also suggested that the few additional criteria in WCAG 2.2 would
not pose a substantial burden for web developers, who are likely
already familiar with WCAG 2.1.
---------------------------------------------------------------------------
\50\ W3C, WCAG 2 Overview, https://www.w3.org/WAI/standards-guidelines/wcag/ [https://perma.cc/RQS2-P7JC] (Oct. 5, 2023).
\51\ W3C, What's New in WCAG 2.2, https://www.w3.org/WAI/standards-guidelines/wcag/new-in-22/ [https://perma.cc/GDM3-A6SE]
(Oct. 5, 2023).
\52\ Id.
\53\ Id.
---------------------------------------------------------------------------
[[Page 31348]]
Some commenters suggested that WCAG 2.1 would become outdated
once WCAG 2.2 was finalized. And because WCAG 2.2 was adopted more
recently than WCAG 2.1, some commenters noted that the adoption of
WCAG 2.2 would be more likely to help subpart H of this part keep
pace with changes in technology. The Department understands and
appreciates the concerns commenters raised.
The Department believes that adopting WCAG 2.1 as the technical
standard rather than WCAG 2.2 is the most prudent approach at this
time. W3C, while recommending the use of the most recent recommended
standard, has made clear that WCAG 2.2 does not ``deprecate or
supersede'' WCAG 2.1 and has stated that WCAG 2.1 is still an
existing standard.\54\ The Department recognizes that WCAG 2.2 is a
newer standard, but in crafting subpart H of this part the
Department sought to balance benefits for individuals with
disabilities with feasibility for public entities making their
content accessible in compliance with subpart H. Because WCAG 2.2
has been adopted so recently, web professionals have had less time
to become familiar with the additional success criteria that have
been incorporated in WCAG 2.2. The Department believes there will be
fewer resources and less guidance available to web professionals and
public entities on the new success criteria in WCAG 2.2.
Additionally, the Department appreciates the concerns expressed by
at least one commenter with adopting any standard that was not
finalized before the NPRM's comment period--as was the case with
WCAG 2.2--because interested parties would not have had an
opportunity to understand and comment on the finalized standard.
---------------------------------------------------------------------------
\54\ W3C, WCAG 2 Overview, https://www.w3.org/WAI/standards-
guidelines/wcag/
#:~:text=WCAG%202.0%2C%20WCAG%202.1%2C%20and%20WCAG%202.2%20are%20all
%20existing,most%20recent%20version%20of%20WCAG [https://perma.cc/V5ZC-BF8Z] (Oct. 5, 2023).
---------------------------------------------------------------------------
Given the benefits of WCAG 2.2 highlighted by commenters, some
public entities might choose to implement WCAG 2.2 to provide an
even more accessible experience for individuals with disabilities
and to increase customer service satisfaction. The Department notes
that subpart H of this part provides for equivalent facilitation in
Sec. 35.203, meaning public entities could choose to comply with
subpart H by conforming their web content to WCAG 2.2 Level AA
because WCAG 2.2 Level AA provides substantially equivalent or
greater accessibility and usability as compared to WCAG 2.1 Level
AA. This would be sufficient to meet the standard for equivalent
facilitation in Sec. 35.203, which is discussed in more detail
later in the section-by-section analysis.
WCAG 2.0 and Section 508 of the Rehabilitation Act
Alternatively, the Department considered adopting WCAG 2.0. This
change was suggested by the Small Business Administration, which
argued that public entities should not have to comply with a more
rigorous standard for online accessibility than the Federal
Government, which is required to conform to WCAG 2.0 under section
508 of the Rehabilitation Act. In 2017, when the Architectural and
Transportation Barriers Compliance Board (``Access Board'') adopted
WCAG 2.0 as the technical standard for the Federal Government's web
content under section 508, WCAG 2.1 had not been finalized.\55\ And
although WCAG 2.0 is the standard adopted by the Department of
Transportation in its regulations implementing the Air Carrier
Access Act, which covers airlines' websites and kiosks,\56\ those
regulations--like the section 508 rule--were promulgated before WCAG
2.1 was published.
---------------------------------------------------------------------------
\55\ See Information and Communication Technology (ICT)
Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017); W3C, Web
Content Accessibility Guidelines (WCAG) 2.1 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/and https://perma.cc/UB8A-GG2F.
\56\ See 14 CFR 382.43(c) through (e) and 382.57.
---------------------------------------------------------------------------
The Department believes that adopting WCAG 2.1 as the technical
standard for subpart H of this part is more appropriate than
adopting WCAG 2.0. WCAG 2.1 provides for important accessibility
features that are not included in WCAG 2.0, and an increasing number
of governmental entities are using WCAG 2.1. A number of countries
that have adopted WCAG 2.0 as their standard are now making efforts
to move or have moved to WCAG 2.1.\57\ In countries that are part of
the European Union, public sector websites and mobile apps generally
must meet a technical standard that requires conformance to the WCAG
2.1 success criteria.\58\ And WCAG 2.0 is likely to become outdated
or less relevant more quickly than WCAG 2.1. As discussed previously
in this appendix, WCAG 2.2 was recently published and includes even
more success criteria for accessibility.
---------------------------------------------------------------------------
\57\ See, e.g., Austl. Gov't Digital Transformation Agency,
Exploring WCAG 2.1 for Australian Government Services (Aug. 22,
2018), https://www.dta.gov.au/blogs/exploring-wcag-21-australian-government-services. A Perma archive link was unavailable for this
citation. See also W3C, Denmark (Danmark), https://www.w3.org/WAI/policies/denmark/#bekendtg%C3%B8relse-om-afgivelse-af-tilg%C3%A6ngelighedserkl%C3%A6ring-for-offentlige-organers-websteder-og-mobilapplikationer [https://perma.cc/K8BM-4QN8] (Mar.
15, 2023); see also W3C, Web Accessibility Laws & Policies, https://www.w3.org/WAI/policies/ [https://perma.cc/6SU3-3VR3] (Dec. 2023).
\58\ European Comm'n, Web Accessibility, https://digital-strategy.ec.europa.eu/en/policies/web-accessibility [https://perma.cc/LSG9-XW7L] (Oct. 10, 2023); European Telecomm. Standards
Inst., Accessibility Requirements for ICT Products and Services 45-
51, 64-78 (Mar. 2021), https://www.etsi.org/deliver/etsi_en/301500_301599/301549/03.02.01_60/en_301549v030201p.pdf [https://perma.cc/5TEZ-9GC6].
---------------------------------------------------------------------------
The Department expects that the wide usage of WCAG 2.0 lays a
solid foundation for public entities to become familiar with and
implement WCAG 2.1's additional Level A and AA criteria. According
to the Department's research, dozens of States either use or strive
to use WCAG 2.0 or greater--either on their own or by way of
implementing the section 508 technical standards--for at least some
of their web content. It appears that at least ten States--Alaska,
Delaware, Georgia, Louisiana, Massachusetts, Oregon, Pennsylvania,
South Dakota, Utah, and Washington--already either use WCAG 2.1 or
strive to use WCAG 2.1 for at least some of their web content. Given
that WCAG 2.1 is a more recent standard than WCAG 2.0, adds some
important criteria for accessibility, and has been in existence for
long enough for web developers and public entities to get acquainted
with it, the Department views it as more appropriate for adoption in
subpart H of this part than WCAG 2.0. In addition, even to the
extent public entities are not already acquainted with WCAG 2.1,
those entities will have two or three years to come into compliance
with subpart H, which should also provide sufficient time to become
familiar with and implement WCAG 2.1. The Department also declines
to adopt the Access Board's section 508 standards, which are
harmonized with WCAG 2.0, for the same reasons it declines to adopt
WCAG 2.0.
Effective Communication and Performance Standards
Some commenters suggested that the Department should require
public entities to ensure that they are meeting title II's effective
communication standard--which requires that public entities ensure
that their communications with individuals with disabilities are as
effective as their communications with others \59\--rather than
requiring compliance with a specific technical standard for
accessibility. One such commenter also suggested that the Department
rely on conformance to WCAG only as a safe harbor--as a way to show
that the entity complies with the effective communication standard.
The Department believes that adopting into subpart H of this part
the effective communication standard, which is already required
under the existing title II regulation,\60\ would not meaningfully
help ensure access for individuals with disabilities or provide
clarity for public entities in terms of what specifically public
entities must do to ensure that their web content and mobile apps
are accessible. As previously mentioned, WCAG 2.1 Level AA provides
specific, testable success criteria. As noted in section III.D.4 of
the preamble to the final rule, relying solely on the existing title
II obligations and expecting entities to voluntarily comply has
proven insufficient. In addition, using the technical standard only
as a safe harbor would pose similar issues in terms of clarity and
would not result in reliability and predictability for individuals
with disabilities seeking to access, for example, critical
government services that public entities have as part of their web
content and mobile apps.
---------------------------------------------------------------------------
\59\ Section 35.160.
\60\ Id.
---------------------------------------------------------------------------
Commenters also suggested that manual testing by individuals
with disabilities be required to ensure that content is accessible
to them. Although subpart H of this part does not specifically
require manual testing by individuals with disabilities because
requiring such testing could pose logistical or other hurdles, the
Department recommends that public entities seek and incorporate
[[Page 31349]]
feedback from individuals with disabilities on their web content and
mobile apps. Doing so will help ensure that everyone has access to
critical government services.
The Department received some comments recommending that the
Department adopt a performance standard instead of a specific
technical standard for accessibility of web content and mobile apps.
Performance standards establish general expectations or goals for
web and mobile app accessibility and allow for compliance via a
variety of unspecified methods. As commenters explained, performance
standards could provide greater flexibility in ensuring
accessibility as web and mobile app technologies change. However, as
the Department noted in the NPRM,\61\ the Department believes that
performance standards are too vague and subjective and could be
insufficient to provide consistent and testable requirements for web
and mobile app accessibility. Additionally, the Department expects
that performance standards would not result in predictability for
either public entities or individuals with disabilities in the way
that a more specific technical standard would. Further, similar to a
performance standard, WCAG has been designed to allow for
flexibility and innovation as technology evolves.\62\ The Department
recognizes the importance of adopting a standard for web and mobile
app accessibility that provides not only specific and testable
requirements, but also sufficient flexibility to develop
accessibility solutions for new technologies. The Department
believes that WCAG achieves this balance because it provides
flexibility similar to a performance standard, but it also provides
more clarity, consistency, predictability, and objectivity. Using
WCAG also enables public entities to know precisely what is expected
of them under title II, which may be of particular benefit to
entities with less technological experience. This will assist public
entities in identifying and addressing accessibility errors, which
may reduce costs they would incur without clear expectations.
---------------------------------------------------------------------------
\61\ 88 FR 51962.
\62\ W3C, Benefits of Web Content Accessibility Guidelines WCAG
2, https://www.w3.org/WAI/presentations/WCAG20_benefits/WCAG20_benefits.html [https://perma.cc/3RTN-FLKV] (Aug. 12, 2010)
(``WCAG 2 is adaptable and flexible, for different situations, and
developing technologies and techniques. We described earlier how
WCAG 2 is flexible to apply to Web technologies now and in the
future.'').
---------------------------------------------------------------------------
Evolving Standard
Other commenters suggested that the Department take an approach
in the final rule whereby public entities would be required to
comply with whatever is the most recent version of WCAG at the time.
Under that approach, the required technical standard would
automatically update as new versions of WCAG are published in the
future. These commenters generally argued that such an approach
would aid in ``future proofing'' subpart H of this part to help it
keep up with changes in technology. Based on several legal
considerations, the Department will not adopt such an approach.
First, the Department is incorporating WCAG 2.1 Level AA by
reference into subpart H and must abide by the Office of the Federal
Register's regulation regarding incorporation by reference.\63\ The
regulation states that incorporation by reference of a publication
is limited to the edition of the publication that is approved by the
Office of the Federal Register. Future amendments or revisions of
the publication are not included.\64\ Accordingly, the Department
only incorporates a particular version of the technical standard and
does not state that future versions of WCAG would be automatically
incorporated into subpart H. In addition, the Department has
concerns about regulating to a future standard of WCAG that has yet
to be created, of which the Department has no knowledge, and for
which compatibility with the ADA and covered entities' content is
uncertain.
---------------------------------------------------------------------------
\63\ See 1 CFR 51.1(f).
\64\ Id.
---------------------------------------------------------------------------
Relatedly, the Department also received comments suggesting that
it institute a process for reviewing and revising its regulation
every several years to ensure that subpart H of this part is up to
date and effective for current technology. Pursuant to Executive
Order 13563, the Department is already required to do a periodic
retrospective review of its regulations to determine whether any
such regulations should be modified, streamlined, expanded, or
repealed so as to make the agency's regulatory program more
effective or less burdensome in achieving the regulatory
objectives.\65\ Consideration of the effectiveness of subpart H of
this part in the future would fall within Executive Order 13563's
purview, such that building a mechanism into subpart H is not
necessary at this time.
---------------------------------------------------------------------------
\65\ E.O. 13563, sec. 6, 3 CFR, 2012 Comp., p. 215.
---------------------------------------------------------------------------
Alternative Approaches Considered for Mobile Apps and Conventional
Electronic Documents
Section 35.200 adopts WCAG 2.1 Level AA as the technical
standard for mobile apps. This approach will ensure the
accessibility standards for mobile apps in subpart H of this part
are consistent with the accessibility standards for web content in
subpart H. The NPRM asked for feedback on the appropriate technical
standard for mobile apps, including whether the Department should
adopt WCAG 2.1 Level AA or other standards like the standards for
section 508 of the Rehabilitation Act (``Section 508 Standards''),
which apply to the Federal Government's web content and mobile
apps.\66\ The Department received several comments on the technical
standard that should apply to mobile apps. Some commenters supported
adopting WCAG 2.1 Level AA, some suggested adopting other technical
standards or requirements, and others suggested that some WCAG
success criteria may not apply to mobile apps.
---------------------------------------------------------------------------
\66\ 36 CFR 1194.1; 36 CFR part 1194, appendices A, C, and D.
---------------------------------------------------------------------------
Some commenters had concerns about the costs and burdens
associated with applying any technical standard to content on mobile
apps, including to content in mobile apps that public entities
already provide on the web. One commenter requested that the
Department apply WCAG 2.0 to the extent that a public entity's
mobile app provides different content than is available online.
However, many commenters expressed strong support for applying
the same technical standard for mobile apps and web content and
shared that web content and mobile apps generally should not be
treated differently. These commenters emphasized the importance of
mobile app accessibility, explaining that many individuals rely on
mobile apps to get information about State or local government
services, programs, or activities, including transportation
information, emergency alerts or special news bulletins, and
government appointments. Some commenters further clarified that
adopting different standards for mobile apps than web content could
cause confusion. They also stated that adopting the same standard
would ensure a uniform experience and expectations for users with
disabilities.
Many commenters, including disability advocacy organizations,
individuals, and public entities, supported the use of WCAG 2.1
Level AA as the technical standard for mobile apps, in part because
WCAG is internationally recognized, often adopted in practice, and
technology neutral (i.e., it applies to both web content and mobile
apps). Other commenters said that WCAG 2.1 Level AA is an
appropriate standard for mobile apps because it includes specific
success criteria aimed at addressing the unique challenges of mobile
app accessibility.
Some commenters suggested that the Department should adopt WCAG
2.2 as the technical standard for mobile apps. These commenters
explained that WCAG 2.2 is more recent and includes newer guidelines
based on accessibility issues found in smartphones. Commenters
further shared that WCAG 2.2 can better ensure adequate button size
and spacing to accommodate users with varying degrees of motor
skills in their fingers.
In addition, other commenters recommended that the Department
adopt the Section 508 Standards, either independently or together
with WCAG 2.1 or WCAG 2.2. Some of these commenters shared their
belief that WCAG was developed more for web content than for mobile
apps. These commenters stated that while many of WCAG's principles
and guidelines can be applied to mobile apps, mobile apps have
unique characteristics and interactions that may require additional
considerations and depend on the specific requirements and goals of
the mobile app in question. For example, commenters indicated that
mobile apps may also need to adhere to platform-specific
accessibility guidelines for iOS (Apple) and Android (Google). In
addition, commenters noted that the Section 508 Standards include
additional requirements applicable to mobile apps that are not
included in WCAG 2.1 Level AA, such as interoperability requirements
to ensure that a mobile app does not disrupt a mobile device's
internal assistive technology for individuals with disabilities
(e.g., screen readers for people who are blind or have low
[[Page 31350]]
vision). Some commenters suggested that the Department include these
additional requirements from the Section 508 Standards in subpart H
of this part.
The Department carefully considered all of these comments and
agrees with commenters who stated that the same technical standard
for accessibility should apply to both web content and mobile apps.
The Department believes that applying the same technical standard to
both web content and mobile apps will reduce confusion by ensuring
consistent requirements and user experiences across web and mobile
platforms.
The Department further agrees with the commenters who stated
that WCAG 2.1 Level AA is an appropriate technical standard. As
discussed previously in this appendix, many developers and
organizations are already familiar with WCAG 2.1 Level AA, and they
may be less familiar with WCAG 2.2. The Department thus believes
that selecting WCAG 2.1 Level AA as the technical standard for
mobile apps will reduce the difficulty of complying with subpart H
of this part by adopting a well-recognized standard that is already
familiar to developers and organizations, while still ensuring
increased accessibility and usability for individuals with
disabilities. The Department notes that subpart H allows for
equivalent facilitation in Sec. 35.203, meaning that public
entities could still choose to apply additional standards or
techniques related to mobile apps, to the extent that the standard
or technique results in substantially equivalent or greater
accessibility and usability.
As commenters noted, WCAG 2.1 is designed to be technology
neutral, which will help ensure accessibility for mobile apps.
Although the Section 508 Standards include some additional
requirements like interoperability that are not required by
WCAG,\67\ WCAG 2.1 Level AA includes specific success criteria
related to mobile app accessibility. These success criteria address
challenges such as touch target size, orientation, and motion
actuation, among others.\68\ Therefore, the Department believes that
WCAG 2.1 Level AA is a robust framework for mobile app
accessibility.
---------------------------------------------------------------------------
\67\ See 36 CFR 1194.1; 36 CFR part 1194, appendix C, ch. 5.
\68\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1 (June
5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and
https://perma.cc/UB8A-GG2F (success criteria 2.5.5, 1.3.4, & 2.5.4).
---------------------------------------------------------------------------
The Department also received comments indicating that certain
requirements under WCAG 2.1 Level AA may not be applicable to mobile
apps or conventional electronic documents and subpart H of this part
should therefore set forth exceptions for those success criteria.
The Access Board faced similar concerns when it promulgated its
Section 508 Standards.\69\ Accordingly, the Section 508 Standards
indicate that ``non-Web documents'' and ``non-Web software,'' which
include conventional electronic documents and mobile apps, do not
have to comply with the following WCAG 2.0 Success Criteria: 2.4.1
Bypass Blocks, 2.4.5 Multiple Ways, 3.2.3 Consistent Navigation, and
3.2.4 Consistent Identification.\70\ W3C has provided guidance on
how these and other WCAG success criteria can be applied to non-web
information and communications technologies, including conventional
electronic documents and mobile apps.\71\
---------------------------------------------------------------------------
\69\ See Information and Communication Technology (ICT)
Standards and Guidelines, 82 FR 5790, 5798-99 (Jan. 18, 2017).
\70\ Id. at 5799.
\71\ W3C, WCAG2ICT Overview, https://www.w3.org/WAI/standards-guidelines/wcag/non-web-ict/ [https://perma.cc/XRL6-6Q9Y] (Feb. 2,
2024).
---------------------------------------------------------------------------
The Department understands that some WCAG 2.1 Level AA success
criteria may not apply to conventional electronic documents and
mobile apps directly as written, but the Department declines to set
forth exceptions to these success criteria in subpart H of this
part. As discussed, the Department believes it is important to apply
one consistent standard to web content and mobile apps to ensure
clarity and reduce confusion. Public entities generally must ensure
that the web content and content in mobile apps they provide or make
available conform to the WCAG 2.1 Level AA success criteria, to the
extent those criteria can be applied. In determining how to make
conventional electronic documents and mobile apps conform to WCAG
2.1 Level AA, public entities may wish to consult W3C's guidance on
non-web information and communications technology, which explains
how the WCAG success criteria can be applied to conventional
electronic documents and mobile apps.\72\ The Department believes
the compliance dates discussed in Sec. 35.200 will provide public
entities sufficient time to understand how WCAG 2.1 Level AA applies
to their conventional electronic documents and mobile apps,
especially because WCAG 2.1 has been in final form since 2018, which
has provided time for familiarity and resources to develop. Further,
the Department will continue to monitor developments in the
accessibility of conventional electronic documents and mobile apps
and may issue further guidance as appropriate.
---------------------------------------------------------------------------
\72\ See W3C, Guidance on Applying WCAG 2.0 to Non-Web
Information and Communications Technologies (WCAG2ICT) (Sep. 5,
2003), https://www.w3.org/TR/wcag2ict/ [https://perma.cc/6HKS-8YZP].
This guidance may provide assistance in interpreting certain WCAG
2.0 success criteria (also included in WCAG 2.1 Level AA) that do
not appear to be directly applicable to non-web information and
communications like conventional electronic documents and mobile
apps as written, but that can be made applicable with minor
revisions. For example, for Success Criterion 1.4.2 (audio control),
replacing the words ``on a web page'' with ``in a non-web document
or software'' can make this Success Criterion clearly applicable to
conventional electronic documents and mobile apps.
---------------------------------------------------------------------------
Alternative Approaches Considered for PDF Files and Digital Textbooks
The Department also received a comment suggesting that subpart H
of this part reference PDF/UA-1 for standards related to PDF files
or W3C's EPUB Accessibility 1.1 standard \73\ for digital textbooks.
The Department declines to adopt additional technical standards for
these specific types of content. As discussed, the WCAG standards
were designed to be ``technology neutral'' \74\ and are designed to
be broadly applicable to current and future web technologies.\75\
The Department is concerned that adopting multiple technical
standards related to different types of web content and content in
mobile apps could lead to confusion. However, the Department notes
that subpart H allows for equivalent facilitation in Sec. 35.203,
meaning that public entities could still choose to comply with
additional standards or guidance related to PDFs or digital
textbooks to the extent that the standard or technique used provides
substantially equivalent or greater accessibility and usability.
---------------------------------------------------------------------------
\73\ W3C, EPUB Accessibility 1.1 (May 25, 2023), https://www.w3.org/TR/epub-a11y-11/ [https://perma.cc/48A5-NC2B].
\74\ W3C, Introduction to Understanding WCAG (June 20, 2023),
https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU].
\75\ See W3C, Understanding Techniques for WCAG Success Criteria
(June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques [https://perma.cc/AMT4-XAAL].
---------------------------------------------------------------------------
In summary, the Department believes that adopting WCAG 2.1 Level
AA as the technical standard strikes the appropriate balance of
ensuring access for individuals with disabilities and feasibility of
implementation because there is a baseline of familiarity with the
standard. In addition, for the reasons discussed previously in this
appendix, the Department believes that WCAG 2.1 Level AA is an
effective standard that sets forth clear, testable success criteria
that will provide important benefits to individuals with
disabilities.
WCAG Conformance Level
For web content and mobile apps to conform to WCAG 2.1, they
must satisfy the success criteria under one of three levels of
conformance: A, AA, or AAA. As previously mentioned, the Department
is adopting Level AA as the conformance level under subpart H of
this part. In the regulatory text at Sec. 35.200(b)(1) and (2), the
Department provides that public entities must comply with Level A
and Level AA success criteria and conformance requirements specified
in WCAG 2.1. As noted in the NPRM,\76\ WCAG 2.1 provides that for
Level AA conformance, the web page must satisfy all the Level A and
Level AA Success Criteria.\77\ However, individual success criteria
in WCAG 2.1 are labeled only as Level A or Level AA. Therefore, a
person reviewing individual requirements in WCAG 2.1 may not
understand that both Level A and Level AA success criteria must be
met to attain Level AA conformance. Accordingly, the Department has
made explicit in subpart H that both Level A and Level AA success
[[Page 31351]]
criteria and conformance requirements must be met in order to comply
with subpart H's requirements.
---------------------------------------------------------------------------
\76\ 88 FR 51961.
\77\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1, Sec.
5.2 Conformance Requirements (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs [https://perma.cc/39WD-CHH9]. WCAG 2.1 also allows a Level AA conforming alternate version
to be provided instead. The Department has adopted a slightly
different approach to conforming alternate versions, which is
discussed in the section-by-section analysis of Sec. 35.202.
---------------------------------------------------------------------------
By way of background, the three levels of conformance indicate a
measure of accessibility and feasibility. Level A, which is the
minimum level of accessibility, contains criteria that provide basic
web accessibility and are the least difficult to achieve for web
developers.\78\ Level AA, which is the intermediate level of
accessibility, includes all of the Level A criteria and also
contains other criteria that provide more comprehensive web
accessibility, and yet are still achievable for most web
developers.\79\ Level AAA, which is the highest level of
conformance, includes all of the Level A and Level AA criteria and
also contains additional criteria that can provide a more enriched
user experience, but are the most difficult to achieve for web
developers.\80\ W3C does not recommend that Level AAA conformance be
required as a general policy for entire websites because it is not
possible to satisfy all Level AAA criteria for some content.\81\
---------------------------------------------------------------------------
\78\ W3C, Web Content Accessibility Guidelines (WCAG) 2 Level A
Conformance (July 13, 2020), https://www.w3.org/WAI/WCAG2A-Conformance [https://perma.cc/KT74-JNHG].
\79\ Id.
\80\ Id.
\81\ See W3C, Understanding Conformance, Understanding
Requirement 1, https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/K94N-Z3TF].
---------------------------------------------------------------------------
Based on public feedback and independent research, the
Department believes that WCAG 2.1 Level AA is the appropriate
conformance level because it includes criteria that provide web and
mobile app accessibility to individuals with disabilities--including
those with visual, auditory, physical, speech, cognitive, and
neurological disabilities--and yet is feasible for public entities'
web developers to implement. Commenters who spoke to this issue
generally seemed supportive of this approach. As discussed in the
NPRM,\82\ Level AA conformance is widely used, making it more likely
that web developers are already familiar with its requirements.
Though many of the entities that conform to Level AA do so under
WCAG 2.0, not WCAG 2.1, this still suggests a widespread familiarity
with most of the Level AA success criteria, given that 38 of the 50
Level A and AA success criteria in WCAG 2.1 are also included in
WCAG 2.0.\83\ The Department believes that Level A conformance alone
is not appropriate because it does not include criteria for
providing web accessibility that the Department understands are
critical, such as a minimum level of color contrast so that items
like text boxes or icons are easier to see, which is important for
individuals with vision disabilities.
---------------------------------------------------------------------------
\82\ 88 FR 51961.
\83\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 0.5
Comparison with WCAG 2.0 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#comparison-with-wcag-2-0 [https://perma.cc/H76F-6L27].
---------------------------------------------------------------------------
Some commenters suggested that certain Level AAA criteria or
other unique accessibility requirements be added to the technical
standard in subpart H of this part. However, the Department believes
it would be confusing and difficult to implement certain Level AAA
or other unique criteria when such criteria are not required under
WCAG 2.1 Level AA. Adopting WCAG 2.1 Level AA as a whole provides
greater predictability and reliability. Also, while Level AAA
conformance provides a richer user experience, it is the most
difficult to achieve for many entities. Again, W3C does not
recommend that Level AAA conformance be required as a general policy
for entire websites because it is not possible to satisfy all Level
AAA criteria for some content.\84\ Adopting a Level AA conformance
level makes the requirements of subpart H consistent with a standard
that has been accepted internationally.\85\ The web content of
Federal agencies is also required to conform to WCAG 2.0 Level AA
under the Section 508 Standards.\86\
---------------------------------------------------------------------------
\84\ See W3C, Understanding Conformance, Understanding
Requirement 1, https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/9ZG9-G5N8].
\85\ See W3C, Web Accessibility Laws & Policies, https://www.w3.org/WAI/policies/ [https://perma.cc/6SU3-3VR3] (Dec. 4,
2023).
\86\ See Information and Communication Technology (ICT)
Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017).
---------------------------------------------------------------------------
Therefore, the Department believes that adopting the Level AA
conformance level strikes the right balance between accessibility
for individuals with disabilities and achievability for public
entities.
Requirements by Entity Size
In addition to setting forth a technical standard with which
public entities must comply, Sec. 35.200(b) also establishes dates
by which a public entity must comply. The compliance time frames set
forth in Sec. 35.200(b) are generally delineated by the total
population of the public entity, as defined in Sec. 35.104. Larger
public entities--those with populations of 50,000 or more--will have
two years before compliance is first required. For the reasons
discussed in the section-by-section analysis of Sec. 35.200(b)(2),
small public entities--those with total populations under 50,000--
and special district governments will have an additional year,
totaling three years, before compliance is first required. The
50,000 population threshold was chosen because it corresponds with
the definition of ``small governmental jurisdictions'' as defined in
the Regulatory Flexibility Act.\87\ After the compliance date,
ongoing compliance with subpart H of this part is required.
---------------------------------------------------------------------------
\87\ 5 U.S.C. 601(5).
---------------------------------------------------------------------------
Commenters expressed a wide range of views about how long public
entities should be given to bring their web content and mobile apps
into compliance with subpart H of this part. Some commenters
expressed concern that public entities would need more time to
comply, while others expressed concern that a delayed compliance
date would prolong the exclusion of individuals with disabilities
from public entities' online services, programs, or activities.
Suggestions for the appropriate compliance time frame ranged from
six months to six years. There were also some commenters who
suggested a phased approach where a public entity would need to
periodically meet certain compliance milestones over time by
prioritizing certain types of content or implementing certain
aspects of the technical standard. Refer to the section of the
section-by-section analysis entitled ``Compliance Time Frame
Alternatives'' for further discussion of these suggested approaches.
The Department appreciates the various considerations raised by
public stakeholders in their comments. After carefully weighing the
arguments that the compliance dates should be kept the same,
shortened, lengthened, or designed to phase in certain success
criteria or focus on certain content, the Department has decided
that the compliance dates in subpart H of this part--two years for
large public entities and three years for small public entities and
special district governments--strike the appropriate balance between
the various interests at stake. Shortening the compliance dates
would likely result in increased costs and practical difficulties
for public entities, especially small public entities. Lengthening
the compliance dates would prolong the exclusion of many individuals
with disabilities from public entities' web content and mobile apps.
The Department believes that the balance struck in the compliance
time frame proposed in the NPRM was appropriate, and that there are
no overriding reasons to shorten or lengthen these dates given the
important and competing considerations involved by stakeholders.
Some commenters said that the Department should not require
compliance with technical standards for mobile apps until at least
two years after the compliance deadline for web content. These
commenters asserted that having different compliance dates for web
content and mobile apps would allow entities to learn how to apply
accessibility techniques to their web content and then apply that
experience to mobile apps. Other commenters argued that the
compliance dates for mobile apps should be shortened or kept as
proposed.
The Department has considered these comments and subpart H of
this part implements the same compliance dates for mobile apps and
web content, as proposed in the NPRM. Because users can often access
the same information from both web content and mobile apps, it is
important that both platforms are subject to the standard at the
same times to ensure consistency in accessibility and to reduce
confusion. The Department believes these compliance dates strike the
appropriate balance between reducing burdens for public entities and
ensuring accessibility for individuals with disabilities.
Some commenters stated that it would be helpful to clarify
whether subpart H of this part establishes a one-time compliance
requirement or instead establishes an ongoing compliance obligation
for public entities. The Department wishes to clarify that under
subpart H, public entities have an ongoing obligation to ensure that
their web content and mobile apps comply with subpart H's
requirements, which would include content that is newly added or
[[Page 31352]]
created after the compliance date. The compliance date is the first
time that public entities need to be in compliance with subpart H's
requirements; it is not the last. Accordingly, after the compliance
date, public entities will continue to need to ensure that all web
content and mobile apps they provide or make available comply with
the technical standard, except to the extent another provision of
subpart H permits otherwise. To make this point more clearly, the
Department revised Sec. 35.200(b)(1) and (2) to state that a public
entity needs to comply with subpart H beginning two or three years
after the publication of the final rule. Additionally, some
commenters suggested that public entities be required to review
their content for accessibility every few years. The Department does
not view this as necessary given the ongoing nature of subpart H's
requirements. However, public entities might find that conducting
such reviews is helpful in ensuring compliance.
Of course, while public entities must begin complying with
subpart H of this part on the applicable compliance date, the
Department expects that public entities will need to prepare for
compliance during the two or three years before the compliance date.
In addition, commenters emphasized--and the Department agrees--that
public entities still have an obligation to meet all of title II's
existing requirements both before and after the date they must
initially come into compliance with subpart H. These include the
requirements to ensure equal access, ensure effective communication,
and make reasonable modifications to avoid discrimination on the
basis of disability.\88\
---------------------------------------------------------------------------
\88\ Sections 35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------
The requirements of Sec. 35.200(b) are generally delineated by
the size of the total population of the public entity. If a public
entity has a population calculated by the United States Census
Bureau in the most recent decennial Census, then the United States
Census Bureau's population estimate for that entity in the most
recent decennial Census is the entity's total population for
purposes of this part. If a public entity is an independent school
district, then the district's total population for purposes of this
part is determined by reference to the district's population
estimate as calculated by the United States Census Bureau in the
most recent Small Area Income and Poverty Estimates.
The Department recognizes that some public entities, like
libraries or public colleges and universities, do not have
population data associated with them in the most recent decennial
Census conducted by the United States Census Bureau. As noted in the
section-by-section analysis of Sec. 35.104, the Department has
inserted a clarification that was previously found in the preamble
of the NPRM into the regulatory text of the definition of ``total
population'' in this part to make it easier for public entities like
these to determine their total population size for purposes of
identifying the applicable compliance date. As the definition of
``total population'' makes clear, if a public entity, other than a
special district government or an independent school district, does
not have a population calculated by the United States Census Bureau
in the most recent decennial Census, but is an instrumentality or a
commuter authority of one or more State or local governments that do
have such a population estimate, the population of the entity is
determined by the combined population of any State or local
governments of which the public entity is an instrumentality or
commuter authority. For example, a county police department that is
an instrumentality of a county with a population of 5,000 would be
considered a small public entity (i.e., an entity with a total
population of less than 50,000) for purposes of this part, while a
city police department that is an instrumentality of a city with a
population of 200,000 would not be considered a small public entity.
Similarly, if a public entity is an instrumentality of an
independent school district, the instrumentality's population for
purposes of this part is determined by reference to the total
population of the independent school district as calculated in the
most recent Small Area Income and Poverty Estimates. This part also
states that the National Railroad Passenger Corporation's total
population for purposes of this part is determined by reference to
the population estimate for the United States as calculated by the
United States Census Bureau in the most recent decennial Census.
For purposes of this part, the total population of a public
entity is not defined by the population that is eligible for or that
takes advantage of the specific services of the public entity. For
example, an independent school district with a population of 60,000
adults and children, as calculated in the Small Area Income and
Poverty Estimates, is not a small public entity regardless of the
number of students enrolled or eligible for services. Similarly,
individual county schools are also not considered small public
entities if they are instrumentalities of a county that has a
population over 50,000. Though a specific county school may create
and maintain web content or a mobile app, the Department expects
that the specific school may benefit from the resources made
available or allocated by the county. This also allows the
jurisdiction to assess compliance for its services, programs, and
activities holistically. As another example, a public State
university located in a town of 20,000 within a State with a
population of 5 million would be considered a large public entity
for the purposes of this part because it is an instrumentality of
the State. However, a county community college in the same State
where the county has a population of 35,000 would be considered a
small public entity for the purposes of this part, because the
community college is an instrumentality of the county.
Some commenters provided feedback on this method of calculating
a public entity's size for purposes of determining the applicable
compliance time frame. Some public educational entities seemed to
mistakenly believe that their populations would be calculated based
on the size of their student bodies and suggested that it would be
difficult for them to calculate their population size under that
approach because they have multiple campuses in different locations.
As clarified previously in this appendix, population size for
educational entities is determined not by the size of those
entities' student bodies, but rather by reference to the Census-
calculated total population of the jurisdiction of which the
educational entity is an instrumentality.
Other commenters suggested that although public entities without
a Census-defined population may be instrumentalities of public
entities that do have such a population, those entities do not
always reliably receive funding from the public entities of which
they are instrumentalities. The Department understands that the
financial relationships between these entities may vary, but the
Department believes that the method of calculating population it has
adopted will generally be the clearest and most effective way for
public entities to determine the applicable compliance time frame.
Some commenters associated with educational entities suggested
that the Department use the Carnegie classification system for
purposes of determining when they must first comply with subpart H
of this part. The Carnegie classification system takes into account
factors that are not relevant to subpart H, such as the nature of
the degrees offered (e.g., baccalaureate versus associate's
degrees).\89\ Subpart H treats educational entities the same as
other public entities for purposes of determining the applicable
compliance time frame, which promotes consistency and reliability.
---------------------------------------------------------------------------
\89\ See Am. Council on Educ., Carnegie Classification of
Institutions of Higher Education, https://carnegieclassifications.acenet.edu/ [https://perma.cc/Q9JZ-GQN3];
Am. Council on Educ., About the Carnegie Classification, https://carnegieclassifications.acenet.edu/carnegie-classification/ [https://perma.cc/B6BH-68WM].
---------------------------------------------------------------------------
Other commenters suggested that factors such as number of
employees, budget, number and type of services provided, and web
presence be used to determine the appropriate compliance time frame.
However, the Department believes that using population as determined
by the Census Bureau is the clearest, most predictable, and most
reliable factor for determining the compliance time frame. At least
one commenter highlighted that population size often relates to the
audience of people with disabilities that a public entity serves
through its web content and mobile apps. In addition, the Regulatory
Flexibility Act uses population size to define what types of
governmental jurisdictions qualify as ``small.'' \90\ This concept,
therefore, should be familiar to public entities. Additionally,
using population allows the Department to account for the unique
challenges faced by small public entities, as discussed in the
section-by-section analysis of Sec. 35.200(b)(2).
---------------------------------------------------------------------------
\90\ 5 U.S.C. 601(5).
---------------------------------------------------------------------------
The Department also received comments asserting that the
threshold for being considered ``small'' should be changed and that
the Department should create varying compliance dates based on
additional gradations of public entity size. The Department believes
it is most appropriate to rely on the 50,000 threshold--which is
[[Page 31353]]
drawn from and consistent with the Regulatory Flexibility Act--to
promote consistency and predictability for public entities. Creating
additional categories and compliance time frames would likely result
in an unnecessary patchwork of obligations that would make it more
difficult for public entities to understand their compliance
obligations and for individuals with disabilities to understand
their rights. The approach in subpart H of this part preserves the
balance between public entities' needs to prepare for costs and
individuals with disabilities' needs to access online services,
programs, and activities. In addition, breaking down the size
categories for compliance dates further could lead to an arbitrary
selection of the appropriate size cutoff. The Department selected
the size cutoff of 50,000 persons in part because the Regulatory
Flexibility Act defines ``small governmental jurisdictions'' as
those with a population of less than 50,000.\91\ Selecting a
different size cutoff would require estimating the appropriate size
to use, and without further input from the public, it could lead to
an arbitrary selection inconsistent with the needs of public
entities. Because of this, the Department believes the most prudent
approach is to retain the size categories that are consistent with
those outlined in the Regulatory Flexibility Act. The Department
also believes that retaining two categories of public entities--
large and small--strikes the appropriate balance of acknowledging
the compliance challenges that small public entities may face while
not crafting a system that is unduly complex, unpredictable, or
inconsistent across public entities.
---------------------------------------------------------------------------
\91\ See id.
---------------------------------------------------------------------------
Section 35.200(b)(1): Larger Public Entities
Section 35.200(b)(1) sets forth the web content and mobile app
accessibility requirements for public entities with a total
population of 50,000 or more. The requirements of Sec. 35.200(b)(1)
apply to larger public entities--specifically, to those public
entities that do not qualify as ``small governmental jurisdictions''
as defined in the Regulatory Flexibility Act.\92\ Section
35.200(b)(1) requires that beginning two years after the publication
of the final rule, these public entities must ensure that the web
content and mobile apps that they provide or make available \93\
comply with Level A and Level AA success criteria and conformance
requirements specified in WCAG 2.1, unless the entities can
demonstrate that compliance would result in a fundamental alteration
in the nature of a service, program, or activity or in undue
financial and administrative burdens.\94\
---------------------------------------------------------------------------
\92\ Id.
\93\ As the regulatory text for Sec. 35.200(a)(1) and (2) and
(b)(1) and (2) makes clear, subpart H of this part covers web
content and mobile apps that a public entity provides or makes
available, whether directly or through contractual, licensing, or
other arrangements. This regulatory text is discussed in more detail
in this section.
\94\ The undue financial and administrative burdens limitation
on a public entity's obligation to comply with the requirements of
subpart H of this part is discussed in more detail in the section-
by-section analysis of Sec. 35.204.
---------------------------------------------------------------------------
As discussed previously in this appendix, the Department
received varied feedback from the public regarding an appropriate
time frame for requiring public entities to begin complying with
subpart H of this part. Individuals with disabilities and disability
advocacy organizations tended to prefer a shorter time frame, often
arguing that web accessibility has long been required by the ADA and
that extending the deadline for compliance rewards entities that
have not made efforts to make their websites accessible. Such
commenters also emphasized that a longer compliance time frame would
prolong the time that individuals with disabilities would not have
access to critical services offered by public entities, which would
undermine the purpose of the ADA. Commenters noted that delays in
compliance may be particularly problematic in contexts such as
voting and education, where delays could be particularly impactful
given the time-sensitive nature of these programs. Another commenter
who supported shorter time frames pointed out that the Department
has entered into settlements with public entities requiring that
their websites be made accessible in shorter amounts of time, such
as a few months.\95\ The Department notes that while such settlement
agreements serve as important datapoints, those agreements are
tailored to the specific situation and entity involved and are not
broadly applicable like a regulation.
---------------------------------------------------------------------------
\95\ See, e.g., Settlement Agreement Between the United States
of America and the City of Cedar Rapids, Iowa Under the Americans
with Disabilities Act (Sept. 1, 2015), https://www.ada.gov/cedar_rapids_pca/cedar_rapids_sa.html [https://perma.cc/Z338-B2BU];
Settlement Agreement Between the United States of America and the
City of Fort Morgan, Colo. Under the Americans with Disabilities Act
(Aug. 8, 2013), https://www.ada.gov/fort-morgan-pca/fort-morgan-pca-sa.htm [https://perma.cc/JA3E-QYMS]; Settlement Agreement Between
the United States of America and the Town of Poestenkill, N.Y. Under
the Americans with Disabilities Act (July 19, 2013), https://www.ada.gov/poestenkill-pca/poestenkill-sa.html [https://perma.cc/DGD5-NNC6].
---------------------------------------------------------------------------
State and local government entities have been particularly
concerned--now and in the past--about shorter compliance deadlines,
often citing budgets and staffing as major limitations. For example,
as noted in the NPRM, when WCAG 2.0 was relatively new, many public
entities stated that they lacked qualified personnel to implement
that standard. They told the Department that in addition to needing
time to implement the changes to their websites, they also needed
time to train staff or contract with professionals who are
proficient in developing accessible websites. Considering all these
factors, as well as the fact that over a decade has passed since the
Department started receiving such feedback and there is now more
available technology to make web content and mobile apps accessible,
the Department believes a two-year compliance time frame for public
entities with a total population of 50,000 or more is appropriate.
Public entities and the community of web developers have had
more than a decade to familiarize themselves with WCAG 2.0, which
was published in 2008 and serves as the foundation for WCAG 2.1, and
more than five years to familiarize themselves with the additional
12 Level A and AA success criteria of WCAG 2.1.\96\ The Department
believes these 12 additional success criteria will not significantly
increase the time or resources that it will take for a public entity
to come into compliance with subpart H of this part beyond what
would have already been required to conform to WCAG 2.0. The
Department therefore believes that subpart H's approach balances the
resource challenges reported by public entities with the interests
of individuals with disabilities in accessing the multitude of
services, programs, and activities that public entities now offer
via the web and mobile apps.
---------------------------------------------------------------------------
\96\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 0.5
Comparison with WCAG 2.0 (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#comparison-with-wcag-2-0 [https://perma.cc/H76F-6L27].
---------------------------------------------------------------------------
Section 35.200(b)(2): Small Public Entities and Special District
Governments
Section 35.200(b)(2) sets forth the web content and mobile app
accessibility requirements for public entities with a total
population of less than 50,000 and special district governments. As
noted in the preceding section, the 50,000 population threshold was
chosen because it corresponds with the definition of ``small
governmental jurisdictions'' in the Regulatory Flexibility Act.\97\
Section 35.200(b)(2) requires that beginning three years after the
publication of the final rule, these public entities with a total
population of less than 50,000 and special district governments must
ensure that the web content and mobile apps that they provide or
make available \98\ comply with Level A and Level AA success
criteria and conformance requirements specified in WCAG 2.1, unless
the entities can demonstrate that compliance would result in a
fundamental alteration in the nature of a service, program, or
activity or in undue financial and administrative burdens.
---------------------------------------------------------------------------
\97\ 5 U.S.C. 601(5).
\98\ As the regulatory text for Sec. 35.200(a)(1) and (2) and
(b)(1) and (2) makes clear, subpart H of this part covers web
content and mobile apps that a public entity provides or makes
available, whether directly or through contractual, licensing, or
other arrangements. This regulatory text is discussed in more detail
in this section.
---------------------------------------------------------------------------
Small Public Entities
The Department appreciates that small public entities may
sometimes face unique challenges in making their web content and
mobile apps accessible, given that small entities may have more
limited or inflexible budgets than other entities. The Department is
very sensitive to the need to craft a workable approach for small
entities and has taken the needs of small public entities into
account at every stage in the rulemaking process, consistent with
the Regulatory Flexibility Act of 1980 and Executive Order
13272.\99\ The NPRM asked a series of
[[Page 31354]]
questions about the impact of the rulemaking on small public
entities, including about the compliance costs and challenges that
small entities might face in conforming with the rulemaking, the
current level of accessibility of small public entities' web content
and mobile apps, and whether it would be appropriate to adopt
different technical standards or compliance time frames for small
public entities.\100\
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\99\ See Nondiscrimination on the Basis of Disability;
Accessibility of Web Information and Services of State and Local
Government Entities and Public Accommodations, 75 FR 43460, 43467
(July 26, 2010); 88 FR 51949, 51961-51966.
\100\ 88 FR 51961-51966.
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The Department has reviewed public comments, including a comment
from the Small Business Administration Office of Advocacy,\101\
attended a virtual roundtable session hosted by the Small Business
Administration at which approximately 200 members of the public were
present, and carefully considered this topic. In light of its review
and consideration, the Department believes that the most appropriate
means of reducing burdens for small public entities is to give small
public entities an extra year to comply with subpart H of this part.
Accordingly, under Sec. 35.200(b)(2), small public entities, like
all other public entities, need to conform to WCAG 2.1 Level AA, but
small public entities have three years, instead of the two years
provided to larger public entities, to come into compliance. In
addition, small public entities (like all public entities) can rely
on the five exceptions set forth in Sec. 35.201, in addition to the
other mechanisms that are designed to make it feasible for all
public entities to comply with subpart H of this part, as set forth
in Sec. Sec. 35.202, 35.203, 35.204 and 35.205.
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\101\ A discussion of the comment from the Small Business
Administration Office of Advocacy can also be found in the Final
Regulatory Flexibility Analysis.
---------------------------------------------------------------------------
Many commenters emphasized the challenges that small public
entities may face in making their web content and mobile apps
accessible. For example, some commenters reported that small public
entities often have restricted, inflexible budgets, and might need
to divert funds away from other government services in order to
comply with subpart H of this part. Some commenters also asserted
that the Department underestimated the costs that might be
associated with bringing small public entities' web content and
mobile apps into compliance. Some commenters noted that small public
entities may lack technical expertise and dedicated personnel to
work on accessibility issues. Commenters asserted that some small
entities' web-based operations are decentralized, and that these
entities would therefore need to train a large number of individuals
on accessibility to ensure compliance. Commenters also contended
that many small public entities may be dependent on third-party
vendors to make their content accessible, and that there may be
shortages in the number of web developers available to assist with
remediation. Some commenters expressed concern that small entities
would simply remove their web content rather than make it
accessible. Commenters also expressed concern that public entities
would need to devote scarce resources to defending against web
accessibility lawsuits that might arise as a result of subpart H,
which might further exacerbate these entities' budgetary challenges.
The Department notes that public entities would not be required to
undertake changes that would result in a fundamental alteration in
the nature of a service, program, or activity, or impose undue
financial and administrative burdens.
As a result of these concerns, some commenters suggested that
the Department should create different or more flexible standards
for small entities. For example, some commenters suggested that the
Department should require small entities to conform to WCAG 2.0
instead of WCAG 2.1, to match the standards that are applicable to
the Federal Government under section 508. One commenter suggested
that the Department should require small public entities to comply
only with WCAG 2.0 Level A, not Level AA. Other commenters
advocating for small public entities suggested that those entities
should have more time than larger public entities to comply with
subpart H of this part, with suggested compliance time frames
ranging from three to six years. Some commenters suggested the
Department should adopt extended compliance dates for certain
requirements of subpart H that may be more onerous. Commenters noted
that having additional time to comply would help public entities
allocate financial and personnel resources to bring their websites
into compliance. A commenter stated that additional compliance time
would also allow more web developers to become familiar with
accessibility issues and more digital accessibility consultants to
emerge, thereby lowering the cost of testing and consulting
services. A commenter noted that some rural public entities may need
extra time to bring their content into compliance but asserted that
the Department should avoid adopting a compliance date so distant
that it does not provide sufficient urgency to motivate those
entities to address the issue.
Although many commenters expressed concerns about the impact of
subpart H of this part on small public entities, many other
commenters expressed opposition to creating different standards or
compliance time frames for small entities. Commenters emphasized
that people in rural areas might need to travel long distances to
access in-person services and that such areas may lack public
transportation or rideshare services. Given those considerations,
commenters suggested that people with disabilities in small
jurisdictions need access to web-based local government services
just as much as, and sometimes more than, their counterparts in
larger jurisdictions. Some commenters noted that people with
disabilities may disproportionately reside in small towns or rural
areas, and that it is therefore especially critical for those small
and rural governments to have accessible web content and mobile
apps. One commenter indicated that rural residents are 14.7 percent
more likely than their urban counterparts to have a disability.\102\
Commenters emphasized the problems that may be associated with
imposing different technical standards based on the size of the
entity, including a lack of predictability with respect to which
government services people can expect to be accessible. Commenters
also noted that people with disabilities have a right to equal
access to their government's services, regardless of where they
live, and stated that setting different standards for small public
entities would undermine that right. One commenter stated that,
although each small public entity may have only a small population,
there are a large number of small public entities, meaning that any
lowering of the standards for small public entities would
cumulatively affect a large number of people. Some commenters argued
that setting different substantive standards for small public
entities could make it challenging to enforce subpart H. Some
commenters argued that setting different technical standards for
small public entities would be inconsistent with title II of the
ADA, which does not set different standards based on the size of the
entity. One commenter argued that requiring small public entities to
comply only with Level A success criteria would be inadequate and
inconsistent with international standards.
---------------------------------------------------------------------------
\102\ See Katrina Crankshaw, U.S. Census Bureau, Disability
Rates Higher in Rural Areas than Urban Areas (June 26, 2023),
https://www.census.gov/library/stories/2023/06/disability-rates-
higher-in-rural-areas-than-urban-
areas.html#:~:text=Examining%20disability%20rates%20across%20geograph
y,ACS)%201%2Dyear%20estimates [https://perma.cc/NP5Y-CUJS].
---------------------------------------------------------------------------
Commenters also noted that there are many factors that may make
it easier for small public entities to comply. For example, some
commenters suggested that small entities may have smaller or less
complex websites than larger entities. Commenters noted that public
entities may be able to make use of free, publicly available
resources for checking accessibility and to save money by
incorporating accessibility early in the process of content
creation, instead of as an afterthought. Commenters also noted that
public entities can avoid taking actions that are unduly burdensome
by claiming the fundamental alteration or undue burdens limitations
where appropriate.
One commenter argued that, because there are a limited number of
third-party vendors that provide web content for public entities, a
few major third-party vendors shifting towards accessibility as a
result of increased demand stemming from subpart H of this part
could have a cascading effect. This could make the content of many
entities that use those vendors or their templates accessible by
default. Commenters also noted that setting different technical
standards for small public entities would create confusion for those
attempting to implement needed accessibility changes. One commenter
also contended that it may benefit small public entities to use a
more recent version of WCAG because doing so may provide a better
experience for all members of the public.
Some commenters pointed out that the challenges small public
entities may face are not necessarily unique, and that many public
entities, regardless of size, face budgetary constraints, staffing
issues, and a need for training. In addition, some commenters noted
that the size of a public entity may not
[[Page 31355]]
always be a good proxy for the number of people who may need access
to an entity's website.
Having carefully considered these comments, the Department
believes that subpart H of this part strikes the appropriate balance
by requiring small public entities to comply with the same technical
standard as larger public entities while giving small public
entities additional time to do so. The Department believes this
longer compliance time frame is prudent in recognition of the
additional challenges that small public entities may face in
complying, such as limited budgets, lack of technical expertise, and
lack of personnel. The Department believes that providing an extra
year for small public entities to comply will give those entities
sufficient time to properly allocate their personnel and financial
resources to make their web content and mobile apps conform to WCAG
2.1 Level AA, without providing so much additional time that
individuals with disabilities have a reduced level of access to
their State and local government entities' resources for an extended
period.
The Department believes that having provided an additional year
for small public entities to comply with subpart H of this part, it
is appropriate to require those entities to comply with the same
technical standard and conformance level as all other public
entities. This approach ensures consistent levels of accessibility
for public entities of all sizes in the long term, which will
promote predictability and reduce confusion about which standard
applies. It will allow for individuals with disabilities to know
what they can expect when navigating a public entity's web content;
for example, it will be helpful for individuals with disabilities to
know that they can expect to be able to navigate any public entity's
web content independently using their assistive technology. It also
helps to ensure that individuals with disabilities who reside in
rural areas have comparable access to their counterparts in urban
areas, which is critical given the transportation and other barriers
that people in rural areas may face.\103\ In addition, for the
reasons discussed elsewhere in this appendix, the Department
believes that WCAG 2.1 Level AA contains success criteria that are
critical to accessing services, programs, or activities of public
entities, which may not be included under a lower standard. The
Department notes that under appropriate circumstances, small public
entities may also rely on the exceptions, flexibilities, and other
mechanisms described in the section-by-section analysis of
Sec. Sec. 35.201, 35.202, 35.203, 35.204, and 35.205, which the
Department believes should help make compliance feasible for those
entities.
---------------------------------------------------------------------------
\103\ See, e.g., NORC Walsh Ctr. for Rural Health Analysis &
Rural Health Info. Hub, Access to Care for Rural People with
Disabilities Toolkit (Dec. 2016), https://www.ruralhealthinfo.org/toolkits/disabilities.pdf [https://perma.cc/YX4E-QWEE].
---------------------------------------------------------------------------
Some commenters suggested that the Department should provide
additional exceptions or flexibilities to small public entities. For
example, the Small Business Administration suggested that the
Department explore developing a wholesale exception to subpart H of
this part for certain small public entities. The Department does not
believe that setting forth a wholesale exception for small public
entities would be appropriate for the same reasons that it would not
be appropriate to adopt a different technical standard for those
entities. Such an exception would mean that an individual with a
disability who lives in a small, rural area, might not have the same
level of access to their local government's web-based services,
programs, and activities as an individual with a disability in a
larger, urban area. This would significantly undermine consistency
and predictability in web accessibility. It would also be
particularly problematic given the interconnected nature of many
different websites. Furthermore, an exception for small public
entities would reduce the benefits of subpart H of this part for
those entities. The Department has heard from public entities
seeking clarity about how to comply with their nondiscrimination
obligations under title II of the ADA when offering services via the
web. Promulgating an exception for small public entities from the
technical standard described in subpart H would not only hinder
access for individuals with disabilities but would also leave those
entities with no clear standard for how to satisfy their existing
obligations under the ADA and the title II regulation.
Other commenters made alternative suggestions, such as making
WCAG 2.1 Level AA compliance recommended but not required. The
Department does not believe this suggestion is workable or
appropriate. As discussed in the section entitled, ``Inadequacy of
Voluntary Compliance with Technical Standards,'' and as the last few
decades have shown, the absence of a mandatory technical standard
for web content and mobile apps has not resulted in widespread equal
access for people with disabilities. For subpart H of this part to
have a meaningful effect, the Department believes it must set forth
specific requirements so that both individuals with disabilities and
public entities have clarity and predictability in terms of what the
law requires. The Department believes that creating a recommended,
non-mandatory technical standard would not provide this clarity or
predictability and would instead largely maintain the status quo.
Some commenters suggested that the Department should allow small
public entities to avoid making their web content and mobile apps
accessible by instead offering services to individuals with
disabilities via the phone, providing an accessibility disclaimer or
statement, or offering services to individuals with disabilities
through other alternative methods that are not web-based. As
discussed in the section entitled ``History of the Department's
Title II Web-Related Interpretation and Guidance'' and in the
NPRM,\104\ given the way the modern web has developed, the
Department no longer believes 24/7 staffed telephone lines can
realistically provide equal opportunity to individuals with
disabilities in the way that web content and content in mobile apps
can. If a public entity provides services, programs, or activities
to the public via the web or mobile apps, it generally needs to
ensure that those services, programs, or activities are accessible.
The Department also does not believe that requirement is met by a
public entity merely providing an accessibility disclaimer or
statement explaining how members of the public can request
accessible web content or mobile apps. If none of a public entity's
web content or mobile apps were to conform to the technical standard
adopted in subpart H of this part, individuals with disabilities
would need to request access each and every time they attempted to
interact with the public entity's services, programs, or activities,
which would not provide equal opportunity. Similarly, it would not
provide equal opportunity to offer services, programs, or activities
via the web or mobile apps to individuals without disabilities but
require individuals with disabilities to rely exclusively on other
methods to access those services.
---------------------------------------------------------------------------
\104\ 88 FR 51953.
---------------------------------------------------------------------------
Many commenters also asked the Department to provide additional
resources and guidance to help small entities comply. The Small
Business Administration Office of Advocacy also highlighted the need
for the Department to produce a small entity compliance guide.\105\
The Department plans to issue the required small entity compliance
guide. The Department is also issuing a Final Regulatory Flexibility
Analysis as part of this rulemaking, which explains the impact of
subpart H of this part on small public entities. In addition,
although the Department does not currently operate a grant program
to assist public entities in complying with the ADA, the Department
will consider offering additional technical assistance and guidance
in the future to help entities better understand their obligations.
The Department also operates a toll-free ADA Information Line at
(800) 514-0301 (voice) or 1-833-610-1264 (TTY), which public
entities can call to get technical assistance about the ADA,
including information about subpart H.
---------------------------------------------------------------------------
\105\ See Contract with America Advancement Act of 1996, Public
Law 104-121, sec. 212, 110 Stat. 847, 858 (5 U.S.C. 601 note).
---------------------------------------------------------------------------
Many commenters also expressed concern about the potential for
an increase in litigation for small public entities as a result of
subpart H of this part. Some commenters asked the Department to
create a safe harbor or other flexibilities to protect small public
entities from frivolous litigation. In part to address these
concerns, subpart H includes a new section, at Sec. 35.205, which
states that a public entity that is not in full compliance with the
requirements of Sec. 35.200(b) will be deemed to have met the
requirements of Sec. 35.200 in the limited circumstance in which
the public entity can demonstrate that the noncompliance has such a
minimal impact on access that it would not affect the ability of
individuals with disabilities to use the public entity's web content
or mobile app in a substantially equivalent manner as individuals
without disabilities. As discussed at more length in the section-by-
section analysis of Sec. 35.205, the Department
[[Page 31356]]
believes this provision will reduce the risk of litigation for
public entities while ensuring that individuals with disabilities
have substantially equivalent access to public entities' services,
programs, and activities. Section 35.205 will allow public entities
to avoid falling into noncompliance with Sec. 35.200 if they are
not exactly in conformance to WCAG 2.1 Level AA, but the
nonconformance would not affect the ability of individuals with
disabilities to use the public entity's web content or mobile app
with substantially equivalent timeliness, privacy, independence, and
ease of use. The Department believes that this will afford more
flexibility for all public entities, including small ones, while
simultaneously ensuring access for individuals with disabilities.
One commenter asked the Department to state that public
entities, including small ones, that are working towards conformance
to WCAG 2.1 Level AA before the compliance dates are in compliance
with the ADA and not engaging in unlawful discrimination. The
Department notes that while the requirement to comply with the
technical standard set forth in subpart H of this part is new, the
underlying obligation to ensure that all services, programs, and
activities, including those provided via the web and mobile apps,
are accessible is not.\106\ Title II currently requires public
entities to, for example, provide equal opportunity to participate
in or benefit from services, programs, or activities; \107\ make
reasonable modifications to policies, practices, or procedures;
\108\ and ensure that communications with people with disabilities
are as effective as communications with others, which includes
considerations of timeliness, privacy, and independence.\109\
Accordingly, although public entities do not need to comply with
subpart H until two or three years after the publication of the
final rule, they will continue to have to take steps to ensure
accessibility in the meantime, and will generally have to achieve
compliance with the technical standard by the date specified in
subpart H.
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\106\ See, e.g., Sec. Sec. 35.130 and 35.160.
\107\ Sections 35.130(b)(1)(ii) and 35.160(b)(1).
\108\ Section 35.130(b)(7)(i).
\109\ Section 35.160.
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Some commenters asked the Department to provide additional
flexibility for small public entities with respect to captioning
requirements. A discussion of the approach to captioning in subpart
H of this part can be found in the section entitled ``Captions for
Live-Audio and Prerecorded Content.'' Some commenters also expressed
that it would be helpful for small entities if the Department could
provide additional guidance on how the undue burdens limitation
operates in practice. Additional information on this issue can be
found in the section-by-section analysis of Sec. 35.204, entitled
``Duties.'' Some commenters asked the Department to add a notice-
and-cure provision to subpart H to help protect small entities from
liability. For the reasons discussed in the section-by-section
analysis of Sec. 35.205, entitled ``Effect of noncompliance that
has a minimal impact on access,'' the Department does not believe
this approach is appropriate.
Special District Governments
In addition to small public entities, Sec. 35.200(b)(2) also
covers public entities that are special district governments. As
previously noted, special district governments are governments that
are authorized to provide a single function or a limited number of
functions, such as a zoning or transit authority. As discussed
elsewhere in this appendix, Sec. 35.200 proposes different
compliance dates according to the size of the Census-defined
population of the public entity, or, for public entities without
Census-defined populations, the Census-defined population of any
State or local governments of which the public entity is an
instrumentality or commuter authority. The Department believes
applying to special district governments the same compliance date as
small public entities (i.e., compliance in three years) is
appropriate for two reasons. First, because the Census Bureau does
not provide population estimates for special district governments,
these limited-purpose public entities might find it difficult to
obtain population estimates that are objective and reliable in order
to determine their duties under subpart H of this part. Though some
special district governments may estimate their total populations,
these entities may use varying methodology to calculate population
estimations, which may lead to confusion and inconsistency in the
application of the compliance dates in Sec. 35.200. Second,
although special district governments may sometimes serve a large
population, unlike counties, cities, or townships with large
populations that provide a wide range of online government services
and programs and often have large and varying budgets, special
district governments are authorized to provide a single function or
a limited number of functions (e.g., to provide mosquito abatement
or water and sewer services). They therefore may have more limited
or specialized budgets. Therefore, Sec. 35.200(b)(2) extends the
deadline for compliance for special district governments to three
years, as it does for small public entities.
The Department notes that some commenters opposed giving special
district governments three years to comply with subpart H of this
part. One commenter asserted that most special district governments
are aware of the size of the regions they serve and would be able to
determine whether they fall within the threshold for small entities.
One commenter noted that some special district governments may serve
larger populations and should therefore be treated like large public
entities. Another commenter argued that a public entity that has
sufficient administrative and fiscal autonomy to qualify as a
separate government should have the means to comply with subpart H
in a timely manner. However, as noted in the preceding paragraph,
the Department is concerned that, because these special district
governments do not have a population calculated by the Census Bureau
and may not be instrumentalities of a public entity that does have a
Census-calculated population, it is not clear that there is a
straightforward way for these governments to calculate their precise
population. The Department also understands that these governments
have limited functions and may have particularly limited or
constrained budgets in some cases. The Department therefore
continues to believe it is appropriate to give these governments
three years to comply.
Compliance Time Frame Alternatives
In addition to asking that the compliance time frames be
lengthened or shortened, commenters also suggested a variety of
other alternatives and models regarding how Sec. 35.200's
compliance time frames could be structured. Commenters proposed that
existing content be treated differently than new content by, for
example, requiring that new content be made accessible first and
setting delayed or deferred compliance time frames for existing
content. Other commenters suggested that the Department use a
``runway'' or ``phase in'' model. Under this model, commenters
suggested, the Department could require conformance to some WCAG
success criteria sooner than others. Commenters also suggested a
phase-in model where public entities would be required to prioritize
certain types of content, such as making all frequently used content
conform to WCAG 2.1 Level AA first.
Because Sec. 35.200 gives public entities two or three years to
come into compliance depending on entity size, public entities have
the flexibility to structure their compliance efforts in the manner
that works best for them. This means that if public entities want to
prioritize certain success criteria or content during the two or
three years before the compliance date--while still complying with
their existing obligations under title II--they have the flexibility
to do so. The Department believes that this flexibility
appropriately acknowledges that different public entities might have
unique needs based on the type of content they provide, users that
they serve, and resources that they have or procure. The Department,
therefore, is not specifying certain criteria or types of content
that should be prioritized. Public entities have the flexibility to
determine how to make sure they comply with Sec. 35.200 in the two-
or three-year period before which compliance with Sec. 35.200 is
first required. After the compliance date, ongoing compliance is
required.
In addition, the Department believes that requiring only new
content to be accessible or using another method for prioritization
could lead to a significant accessibility gap for individuals with
disabilities if public entities rely on content that is not
regularly updated or changed. The Department notes that unless
otherwise covered by an exception, subpart H of this part requires
that new and existing content be made accessible within the meaning
of Sec. 35.200 after the date initial compliance is required.
Because some exceptions in Sec. 35.201 only apply to preexisting
content, the Department believes it is likely that public entities'
own newly created or added content will largely need to comply with
Sec. 35.200 because such content may not qualify for exceptions.
For more information about how the exceptions under
[[Page 31357]]
Sec. 35.201 function and how they will likely apply to existing and
new content, please review the analysis of Sec. 35.201 in this
section-by-section analysis.
Commenters also suggested that public entities be required to
create transition plans like those discussed in the existing title
II regulation at Sec. Sec. 35.105 and 35.150(d). The Department
does not believe it is appropriate to require transition plans as
part of subpart H of this part for several reasons. Public entities
are already required to ensure that their services, programs, and
activities, including those provided via the web or mobile apps,
meet the requirements of the ADA. The Department expects that many
entities already engage in accessibility planning and self-
evaluation to ensure compliance with title II. By not being
prescriptive about the type of planning required, the Department
will allow public entities flexibility to build on existing systems
and processes or develop new ones in ways that work for each entity.
Moreover, the Department has not adopted new self-evaluation and
transition plan requirements in other sections in this part in which
it adopted additional technical requirements, such as in the 2010
ADA Standards for Accessible Design.\110\ Finally, the Department
believes that public entities' resources may be better spent making
their web content and mobile apps accessible under Sec. 35.200,
instead of drafting required self-evaluation and transition plans.
The Department notes that public entities can still engage in self-
evaluation and create transition plans, and would likely find it
helpful, but they are not required to do so under Sec. 35.200.
---------------------------------------------------------------------------
\110\ Section 35.151.
---------------------------------------------------------------------------
Fundamental Alteration or Undue Financial and Administrative Burdens
As discussed at greater length in the section-by-section
analysis of Sec. 35.204, subpart H of this part provides that where
a public entity can demonstrate that compliance with the
requirements of Sec. 35.200 would result in a fundamental
alteration in the nature of a service, program, or activity or in
undue financial and administrative burdens, compliance with Sec.
35.200 is only required to the extent that it does not result in a
fundamental alteration or undue financial and administrative
burdens. For example, where it would impose undue financial and
administrative burdens to conform to WCAG 2.1 Level AA (or part of
WCAG 2.1 Level AA), public entities would not be required to remove
their web content and mobile apps, forfeit their web presence, or
otherwise undertake changes that would be unduly financially and
administratively burdensome. These limitations on a public entity's
duty to comply with the regulatory provisions in subpart H of this
part mirror the fundamental alteration or undue burdens limitations
currently provided in the title II regulation in Sec. Sec.
35.150(a)(3) (existing facilities) and 35.164 (effective
communication) and the fundamental alteration limitation currently
provided in the title II regulation in Sec. 35.130(b)(7)
(reasonable modifications in policies, practices, or procedures).
If a public entity believes that a proposed action would
fundamentally alter a service, program, or activity or would result
in undue financial and administrative burdens, the public entity has
the burden of proving that compliance would result in such an
alteration or such burdens. The decision that compliance would
result in such an alteration or such burdens must be made by the
head of the public entity or their designee after considering all
resources available for use in the funding and operation of the
service, program, or activity, and must be accompanied by a written
statement of the reasons for reaching that conclusion. As set forth
in Sec. 35.200(b)(1) and (2), if an action required to comply with
the accessibility standard in subpart H of this part would result in
such an alteration or such burdens, a public entity must take any
other action that would not result in such an alteration or such
burdens but would nevertheless ensure that, to the maximum extent
possible, individuals with disabilities receive the benefits or
services provided by the public entity. Section 35.204, entitled
``Duties,'' lays out the circumstances in which an alteration or
such burdens can be claimed. For more information, see the
discussion regarding limitations on obligations in the section-by-
section analysis of Sec. 35.204.
Requirements for Selected Types of Content
In the NPRM, the Department asked questions about the standards
that should apply to two particular types of content: social media
platforms and captions for live-audio content.\111\ In this section,
the Department includes information about the standards that subpart
H of this part applies to these types of content and responds to the
comments received on these topics.
---------------------------------------------------------------------------
\111\ 88 FR 51958, 51962-51963, 51965-51966.
---------------------------------------------------------------------------
Public Entities' Use of Social Media Platforms
Public entities are increasingly using social media platforms to
provide information and communicate with the public about their
services, programs, or activities in lieu of or in addition to
engaging the public on the public entities' own websites. Consistent
with the NPRM, the Department is using the term ``social media
platforms'' to refer to websites or mobile apps of third parties
whose primary purpose is to enable users to create and share content
in order to participate in social networking (i.e., the creation and
maintenance of personal and business relationships online through
websites and mobile apps like Facebook, Instagram, X (formerly
Twitter), and LinkedIn).
Subpart H of this part requires that web content and mobile apps
that public entities provide or make available, directly or through
contractual, licensing, or other arrangements, be made accessible
within the meaning of Sec. 35.200. This requirement applies
regardless of whether that content is located on the public entity's
own website or mobile app or elsewhere on the web or in mobile apps.
The requirement therefore covers web content or content in a mobile
app that a public entity makes available via a social media
platform. With respect to social media posts that are posted before
the compliance date, however, the Department has decided to add an
exception, which is explained more in the section-by-section
analysis of Sec. 35.201(e), ``Preexisting Social Media Posts''.
Many social media platforms that are widely used by members of
the public are available to members of the public separate and apart
from any arrangements with public entities to provide a service,
program, or activity. As a result, subpart H of this part does not
require public entities to ensure that such platforms themselves
conform to WCAG 2.1 Level AA. However, because the posts that public
entities disseminate through those platforms are provided or made
available by the public entities, the posts generally must conform
to WCAG 2.1 Level AA. The Department understands that social media
platforms often make available certain accessibility features like
the ability to add captions or alt text. It is the public entity's
responsibility to use these features when it makes web content
available on social media platforms.\112\ For example, if a public
entity posts an image to a social media platform that allows users
to include alt text, the public entity needs to ensure that
appropriate alt text accompanies that image so that screen-reader
users can access the information.
---------------------------------------------------------------------------
\112\ See U.S. Gen. Servs. Admin., Federal Social Media
Accessibility Toolkit Hackpad, https://digital.gov/resources/federal-social-media-accessibility-toolkit-hackpad/ [https://perma.cc/DJ8X-UCHA] (last visited Mar. 13, 2024).
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The Department received many comments explaining the importance
of social media to accessing public entities' services, programs, or
activities. Both public entities and disability advocates shared
many examples of public entities using social media to transmit
time-sensitive and emergency information, among other information,
to the public. The vast majority of these commenters supported
covering social media posts in subpart H of this part. Commenters
specifically pointed to examples of communications designed to help
the public understand what actions to take during and after public
emergencies, and commenters noted that these types of communications
need to be accessible to individuals with disabilities. Commenters
from public entities and trade groups representing public
accommodations opposed the coverage of social media posts in subpart
H, arguing that social media is more like advertising. These
commenters also said it is difficult to make social media content
accessible because the platforms sometimes do not enable
accessibility features.
The Department agrees with the many commenters who opined that
social media posts should be covered by subpart H of this part. The
Department believes public entities should not be relieved from
their duty under subpart H to provide accessible content to the
public simply because that content is being provided through a
social media platform. The Department was particularly persuaded by
the many examples that commenters shared of emergency and time-
sensitive communications that public entities share
[[Page 31358]]
through social media platforms, including emergency information
about toxic spills and wildfire smoke, for example. The Department
believes that this information must also be accessible to
individuals with disabilities. The fact that public entities use
social media platforms to disseminate this type of crucial
information also belies any analogy to advertising. And even to the
extent that information does not rise to the level of an emergency,
if an entity believes information is worth posting on social media
for members of the public without disabilities, it is no less
important for that information to reach members of the public with
disabilities. Therefore, the entity cannot deny individuals with
disabilities equal access to that content, even if it is not about
an emergency.
The Department received several comments explaining that social
media platforms sometimes have limited accessibility features, which
can be out of public entities' control. Some of these commenters
suggested that the Department should prohibit or otherwise limit a
public entity's use of inaccessible social media platforms when the
public entity cannot ensure accessibility of the platform. Other
commenters shared that even where there are accessibility features
available, public entities frequently do not use them. The most
common example of this issue was public entities failing to use alt
text, and some commenters also shared that public entities
frequently use inaccessible links. Several commenters also suggested
that the Department should provide that where the same information
is available on a public entity's own accessible website, public
entities should be considered in compliance with this part even if
their content on social media platforms cannot be made entirely
accessible.
The Department declines to modify subpart H of this part in
response to these commenters, because the Department believes the
framework in subpart H balances the appropriate considerations to
ensure equal access to public entities' postings to social media.
Public entities must use available accessibility features on social
media platforms to ensure that their social media posts comply with
subpart H. However, where public entities do not provide social
media platforms as part of their services, programs, or activities,
they do not need to ensure the accessibility of the platform as a
whole. Finally, the Department is declining to adopt the alternative
suggested by some commenters that where the same information is
available on a public entity's own accessible website, the public
entity should be considered in compliance with subpart H. The
Department heard concerns from many commenters about allowing
alternative accessible versions when the original content itself can
be made accessible. Disability advocates and individuals with
disabilities shared that this approach has historically resulted in
inconsistent and dated information on the accessible version and
that this approach also creates unnecessary segregation between the
content available for individuals with disabilities and the original
content. The Department agrees with these concerns and therefore
declines to adopt this approach. Social media posts enable effective
outreach from public entities to the public, and in some cases
social media posts may reach many more people than a public entity's
own website. The Department sees no acceptable reason why
individuals with disabilities should be excluded from this outreach.
The Department received a few other comments related to social
media, suggesting for example that the Department adopt guidance on
making social media accessible instead of covering social media in
subpart H of this part, and suggesting that the Department require
inclusion of a disclaimer with contact information on social media
platforms so that the public can notify a public entity about
inaccessible content. The Department believes that these proposals
would be difficult to implement in a way that would ensure content
is proactively made accessible, rather than reactively corrected
after it is discovered to be inaccessible, and thus the Department
declines to adopt these proposals.
Captions for Live-Audio and Prerecorded Content
WCAG 2.1 Level AA Success Criterion 1.2.4 requires captions for
live-audio content in synchronized media.\113\ The intent of this
success criterion is to ``enable people who are deaf or hard of
hearing to watch real-time presentations. Captions provide the part
of the content available via the audio track. Captions not only
include dialogue, but also identify who is speaking and notate sound
effects and other significant audio.'' \114\ Modern live captioning
often can be created with the assistance of technology, such as by
assigning captioners through Zoom or other conferencing software,
which integrates captioning with live meetings.
---------------------------------------------------------------------------
\113\ W3C, Understanding WCAG 2.0: Captions (Live),
Understanding SC 1.2.4 (2023), https://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-real-time-captions.html [https://perma.cc/NV74-U77R].
\114\ Id. (emphasis in original).
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As proposed in the NPRM,\115\ subpart H of this part applies the
same compliance dates (determined primarily by size of public
entity) to all of the WCAG 2.1 Level AA success criteria, including
live-audio captioning requirements. As stated in Sec. 35.200(b),
this provides three years after publication of the final rule for
small public entities and special district governments to comply,
and two years for large public entities. Subpart H takes this
approach for several reasons. First, the Department understands that
live-audio captioning technology has developed in recent years and
continues to develop. In addition, the COVID-19 pandemic moved a
significant number of formerly in-person meetings, activities, and
other gatherings to online settings, many of which incorporated
live-audio captioning. As a result of these developments, live-audio
captioning has become even more critical for individuals with
certain types of disabilities to participate fully in civic life.
Further, the Department believes that requiring conformance to all
success criteria by the same date (according to entity size) will
address the need for both clarity for public entities and
predictability for individuals with disabilities. As with any other
success criterion, public entities would not be required to satisfy
Success Criterion 1.2.4 if they can demonstrate that doing so would
result in a fundamental alteration in the nature of a service,
program, or activity or in undue financial and administrative
burdens.
---------------------------------------------------------------------------
\115\ 88 FR 51965-51966.
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The Department solicited comments to inform this approach,
seeking input on the proposed compliance timeline, the type of live-
audio content that entities make available through the web or mobile
apps, and the cost of providing captioning for live-audio content
for entities of all sizes.\116\ Commenters expressed strong support
for requiring captions as a general matter, noting that they benefit
people with a variety of disabilities, including those who are deaf,
deafblind, or neurodivergent, or have auditory processing
disabilities. No commenters argued for an outright exception to the
captioning requirement. The vast majority of commenters who
responded to these questions, including disability advocates, public
entities, and accessible technology industry members, agreed with
the Department's proposal to require compliance with requirements
for captioning live-audio content on the same timeline as all other
WCAG 2.1 Level AA success criteria. Such commenters noted that a
different compliance timeline for live-audio captioning would
unfairly burden people who are deaf or have hearing loss and would
limit their access to a wide swath of content. One commenter who had
worked in higher education, for instance, noted challenges of
providing live-audio captioning, including the limited number of
captioners available and resulting need for lead time to reserve
one, but nonetheless stated that entities should strive for the same
compliance date.
---------------------------------------------------------------------------
\116\ 88 FR 51965-51966.
---------------------------------------------------------------------------
A smaller number of commenters urged the Department to adopt a
longer compliance time frame in order to allow live-captioning
technology to develop further. Some of these commenters supported a
longer time frame for smaller entities in particular, which may have
fewer resources or budgetary flexibility to comply. Others supported
a longer time frame for larger entities because they are likely to
have more content to caption. Commenters also noted the difficulty
that public entities sometimes encounter in the availability of
quality professional live captioners and the lead time necessary to
reserve those services, but at the same time noted that public
entities do not necessarily want to rely on automatically generated
captioning in all scenarios because it may be insufficient for an
individual's needs.
Commenters shared that public entities make many types of live-
audio content available, including town hall meetings, board
meetings, and other public engagement meetings; emergency-related
and public-service announcements or information; special events like
graduations, conferences, or symposia; online courses; and press
conferences. Commenters also posed questions about whether Success
Criterion
[[Page 31359]]
1.2.4 would apply to particular situations and types of media. The
Department suggests referring to the explanation and definitions of
the terms in Success Criterion 1.2.4 in WCAG 2.1 to determine the
live-audio web content and content in mobile apps that must have
captions.
Success Criterion 1.2.4 is crucial for individuals with
disabilities to access State and local government entities' live
services, programs, or activities. The Department believes that
setting a different compliance date would only delay this essential
access and leave people who are deaf or have hearing disabilities at
a particular disadvantage in accessing these critical services. It
also would hinder access for people with a variety of other
disabilities, including cognitive disabilities.\117\
---------------------------------------------------------------------------
\117\ See W3C, Web Accessibility Initiative, Video Captions,
https://www.w3.org/WAI/perspective-videos/captions/ [https://perma.cc/QW6X-5SPG] (Jan. 23, 2019) (explaining that captions
benefit ``people with cognitive and learning disabilities who need
to see and hear the content to better understand it'').
---------------------------------------------------------------------------
The Department believes that the compliance dates set forth in
subpart H of this part will give public entities sufficient time to
locate captioning resources and implement or enhance processes to
ensure they can get captioning services when needed. Captioning
services are also likely to continue to expand. Given the quick
acceleration in the availability of captioning technology during the
COVID-19 pandemic, the Department believes that public entities'
capacity as well as the technology and personnel on which they rely
will be able to continue to develop quickly.
The Department declines to establish a different compliance time
frame for Success Criterion 1.2.4 for other reasons as well. This
success criterion in WCAG 2.1 was also part of WCAG 2.0, which was
finalized in 2008. As a result, the Department expects that public
entities and associated web developers will be able to become
familiar with it quickly, if they are not already familiar.
Additionally, setting a separate compliance date for one success
criterion could result in confusion and additional difficulty, as
covered entities would need to separately keep track of when they
need to meet the live-audio captioning success criterion and
bifurcate their compliance planning. The Department also does not
see a sufficient reason to distinguish this success criterion from
others as meriting a separate timeline, particularly when this
criterion has existed since 2008 and is so essential for individuals
who are deaf or have hearing disabilities. For these reasons, and
because of the need for individuals with disabilities to access
State and local government entities' live programs, services, and
activities, subpart H of this part establishes a uniform compliance
date for all success criteria in subpart H.
Commenters also expressed a range of opinions about whether
using automatically generated captions instead of professional live-
captioning services would be sufficient to comply with Success
Criterion 1.2.4. These commenters noted that automatic captions are
a widely available option that is low cost for public entities and
will likely continue to improve, perhaps eventually surpassing the
quality of professional live-captioning services. However,
commenters also pointed out that automatic captions may not be
sufficient in many contexts such as virtual classrooms or
courtrooms, where mistakes in identifying a speaker, word, or
punctuation can significantly change the meaning and the participant
with a disability needs to be able to respond in real time.
Commenters also argued, though, that requiring human captioners in
all circumstances may lead to public entities making fewer meetings,
hearings, courses, and other live-audio content available online due
to cost and availability of captioners, which could have a
detrimental effect on overall access to these services for people
with mobility and other disabilities. Public entities noted that
automatic captioning as part of services like Zoom does not cost
them anything beyond the Zoom license, but public entities and the
Small Business Administration reported that costs can be much higher
for human-generated captions for different types of content over the
course of a year.
To balance these competing concerns, commenters supported
requiring captions in general, but proposed a variety of tiered
approaches such as: a default of human-generated captions with
automatic captions as a last resort; automatic captions as a default
with human-generated captions when an individual with a disability
requests them; or human-generated captions as a default for events
with a wide audience like graduations, but automatic captions as a
default for private meetings and courses, unless human-generated
captions are requested. An accessible technology industry member
urged the Department to just require captions that provide
``equivalent access'' to live-audio content, rather than mandate a
particular type of captioning.
After consideration of commenters' concerns and its independent
assessment, the Department does not believe it is prudent to
prescribe captioning requirements beyond the WCAG 2.1 Level AA
requirements, whether by specifying a numerical accuracy standard, a
method of captioning that public entities must use to satisfy this
success criterion, or other measures. The Department recognizes
commenters' concerns that automatic captions are currently not
sufficiently accurate in many contexts, including contexts involving
technical or complex issues. The Department also notes that informal
guidance from W3C provides that automatic captions are not
sufficient on their own unless they are confirmed to be fully
accurate, and that they generally require editing to reach the
requisite level of accuracy.\118\ On the other hand, the Department
recognizes the significant costs and supply challenges that can
accompany use of professional live-captioning services, and the
pragmatic concern that a requirement to use these services for all
events all the time could discourage public entities from conducting
services, programs, or activities online, which could have
unintended detrimental consequences for people with and without
disabilities who benefit from online offerings. Further, it is the
Department's understanding, supported by comments, that captioning
technology is rapidly evolving and any additional specifications
regarding how to meet WCAG 2.1's live-audio captioning requirements
could quickly become outdated.
---------------------------------------------------------------------------
\118\ W3C, Web Accessibility Initiative, Captions/Subtitles,
https://www.w3.org/WAI/media/av/captions [https://perma.cc/D73P-RBZA] (July 14, 2022).
---------------------------------------------------------------------------
Rather than specify a particular accuracy level or method of
satisfying Success Criterion 1.2.4 at this time, subpart H of this
part provides public entities with the flexibility to determine the
best way to comply with this success criterion based on current
technology. The Department further encourages public entities to
make use of W3C's and others' guidance documents available on
captioning, including the informal guidance mentioned in the
preceding paragraph.\119\ In response to commenters' concerns that
captioning requirements could lead to fewer online events, the
Department reminds public entities that, under Sec. 35.204, they
are not required to take any action that would result in a
fundamental alteration to their services, programs, or activities or
undue financial and administrative burdens; but even in those
circumstances, public entities must comply with Sec. 35.200 to the
maximum extent possible. The Department believes the approach in
subpart H strikes the appropriate balance of increasing access for
individuals with disabilities, keeping pace with evolving
technology, and providing a workable standard for public entities.
---------------------------------------------------------------------------
\119\ E.g., W3C, Web Accessibility Initiative, Captions/
Subtitles, https://www.w3.org/WAI/media/av/captions [https://perma.cc/D73P-RBZA] (July 14, 2022); W3C, WCAG 2.2 Understanding
Docs: Understanding SC 1.2.4: Captions (Live) (Level AA), https://www.w3.org/WAI/WCAG22/Understanding/captions-live.html [https://perma.cc/R8SZ-JA6Z] (Mar. 7, 2024).
---------------------------------------------------------------------------
Some commenters expressed similar concerns related to captioning
requirements for prerecorded (i.e., non-live) content under Success
Criterion 1.2.2, including concerns that public entities may choose
to remove recordings of past events such as public hearings and
local government sessions rather than comply with captioning
requirements in the required time frames. The Department recommends
that public entities consider other options that may alleviate
costs, such as evaluating whether any exceptions apply, depending on
the particular circumstances. And as with live-audio captioning,
public entities can rely on the fundamental alteration or undue
burdens provisions in Sec. 35.204 where they can satisfy the
requirements of those provisions. Even where a public entity can
demonstrate that conformance to Success Criterion 1.2.2 would result
in a fundamental alteration or undue financial and administrative
burdens, the Department believes public entities may often be able
to take other actions that do not result in such an alteration or
such burdens; if they can, Sec. 35.204 requires them to do so.
The same reasoning discussed regarding Success Criterion 1.2.4
also applies to
[[Page 31360]]
Success Criterion 1.2.2. The Department declines to adopt a separate
timeline for this success criterion or to prescribe captioning
requirements beyond those in WCAG 2.1 due to rapidly evolving
technology, the importance of these success criteria, and the other
factors already noted. After full consideration of all the comments
received, subpart H of this part requires conformance to WCAG 2.1
Level AA as a whole on the same compliance time frame, for all of
the reasons stated in this section.
Section 35.201 Exceptions
Section 35.200 requires public entities to make their web
content and mobile apps accessible by complying with a technical
standard for accessibility--WCAG 2.1 Level AA. However, some types
of content do not have to comply with the technical standard in
certain situations. The Department's aim in setting forth exceptions
was to make sure that individuals with disabilities have ready
access to public entities' web content and mobile apps, especially
those that are current, commonly used, or otherwise widely needed,
while also ensuring that practical compliance with subpart H of this
part is feasible and sustainable for public entities. The exceptions
help to ensure that compliance with subpart H is feasible by
enabling public entities to focus their resources on making
frequently used or high impact content WCAG 2.1 Level AA compliant
first.
Under Sec. 35.201, the following types of content generally do
not need to comply with the technical standard for accessibility--
WCAG 2.1 Level AA: (1) archived web content; (2) preexisting
conventional electronic documents, unless they are currently used to
apply for, gain access to, or participate in the public entity's
services, programs, or activities; (3) content posted by a third
party; (4) individualized, password-protected or otherwise secured
conventional electronic documents; and (5) preexisting social media
posts. The Department notes that if web content or content in mobile
apps is covered by one exception, the content does not need to
conform to WCAG 2.1 Level AA to comply with subpart H of this part,
even if the content fails to qualify for another exception.
However, as discussed in more detail later in this section-by-
section analysis, there may be situations in which the content
otherwise covered by an exception must still be made accessible to
meet the needs of an individual with a disability under existing
title II requirements.\120\ Because these exceptions are
specifically tailored to address what the Department understands to
be existing areas where compliance might be particularly difficult
based on current content types and technologies, the Department also
expects that these exceptions may become less relevant over time as
new content is added and technology changes.
---------------------------------------------------------------------------
\120\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------
The previously listed exceptions are those included in Sec.
35.201. They differ in some respects from those exceptions proposed
in the NPRM. The Department made changes to the proposed exceptions
identified in the NPRM after consideration of the public comments
and its own independent assessment. Notably, Sec. 35.201 does not
include exceptions for password-protected course content in
elementary, secondary, and postsecondary schools, which had been
proposed in the NPRM.\121\ As will be discussed in more detail, it
also does not include an exception for linked third-party content
because that proposed exception would have been redundant and could
have caused confusion. In the NPRM, the Department discussed the
possibility of including an exception for public entities'
preexisting social media posts.\122\ After consideration of public
feedback, Sec. 35.201 includes such an exception. In addition, the
Department made some technical tweaks and clarifications to the
exceptions.\123\
---------------------------------------------------------------------------
\121\ 88 FR 52019.
\122\ Id. at 51962-51963.
\123\ Id. at 52019-52020.
---------------------------------------------------------------------------
The Department heard a range of views from public commenters on
the exceptions proposed in the NPRM. The Department heard from some
commenters that exceptions are necessary to avoid substantial
burdens on public entities and would help public entities determine
how to allocate their limited resources in terms of which content to
make accessible more quickly, especially when initially determining
how best to ensure they can start complying with Sec. 35.200 by the
compliance date. The Department heard that public entities often
have large volumes of content that are archived, or documents or
social media posts that existed before subpart H of this part was
promulgated. The Department also heard that although making this
content available online is important for transparency and ease of
access, this content is typically not frequently used and is likely
to be of interest only to a discrete population. Such commenters
also emphasized that making such content, like old PDFs, accessible
by the compliance date would be quite difficult and time consuming.
Some commenters also expressed that the exceptions may help public
entities avoid uncertainty about whether they need to ensure
accessibility in situations where it might be extremely difficult--
such as for large quantities of archived materials retained only for
research purposes or where they have little control over content
posted to their website by unaffiliated third parties. Another
commenter noted that public entities may have individualized
documents that apply only to individual members of the public and
that in most cases do not need to be accessed by a person with a
disability.
On the other hand, the Department has also heard from commenters
who objected to the inclusion of exceptions. Many commenters who
objected to the inclusion of exceptions cited the need for all of
public entities' web content and mobile apps to be accessible to
better ensure predictability and access for individuals with
disabilities to critical government services. Some commenters who
opposed including exceptions also asserted that a title II
regulation need not include any exceptions to its specific
requirements because the compliance limitation for undue financial
and administrative burdens would suffice to protect public entities
from any overly burdensome requirements. Some commenters argued that
the exceptions would create loopholes that would result in public
entities not providing sufficient access for individuals with
disabilities, which could undermine the purpose of subpart H of this
part.
Commenters also contended that the proposed exceptions create
confusion about what is covered and needs to conform to WCAG 2.1,
which creates difficulties with compliance for public entities and
barriers for individuals with disabilities seeking to access public
entities' web content or mobile apps. Some commenters also noted
that there are already tools that can help public entities make web
content and mobile apps accessible, such that setting forth
exceptions for certain content is not necessary to help public
entities comply.
After consideration of the various public comments and after its
independent assessment, the Department is including, with some
refinements, five exceptions in Sec. 35.201. As noted in the
preceding paragraphs and as will be discussed in greater detail, the
Department is not including in the final regulations three of the
exceptions that were proposed in the NPRM, but the Department is
also adding an exception for preexisting social media posts that it
previewed in the NPRM. The five particular exceptions included in
Sec. 35.201 were crafted with careful consideration of which
discrete types of content would promote as much clarity and
certainty as possible for individuals with disabilities as well as
for public entities when determining which content must conform to
WCAG 2.1 Level AA, while also still promoting accessibility of web
content and mobile apps overall. The limitations for actions that
would require fundamental alterations or result in undue burdens
would not provide, on their own, the same level of clarity and
certainty. The rationales with respect to each individual exception
are discussed in more detail in the section-by-section analysis of
each exception. The Department believes that including these five
exceptions, and clarifying situations in which content covered by an
exception might still need to be made accessible, strikes the
appropriate balance between ensuring access for individuals with
disabilities and feasibility for public entities so that they can
comply with Sec. 35.200, which will ensure greater accessibility
moving forward.
The Department was mindful of the pragmatic concern that, should
subpart H of this part require actions that are likely to result in
fundamental alterations or undue burdens for large numbers of public
entities or large swaths of their content, subpart H could in
practice lead to fewer impactful improvements for accessibility
across the board as public entities encountered these limitations.
The Department believes that such a rule could result in public
entities' prioritizing accessibility of content that is ``easy'' to
make accessible, rather than content that is essential, despite the
spirit and letter of the rule. The Department agrees with commenters
that clarifying that public
[[Page 31361]]
entities do not need to focus resources on certain content helps
ensure that public entities can focus their resources on the large
volume of content not covered by exceptions, as that content is
likely more frequently used or up to date. In the sections that
follow, the Department provides explanations for why the Department
has included each specific exception and how the exceptions might
apply.
The Department understands and appreciates that including
exceptions for certain types of content reduces the content that
would be accessible at the outset to individuals with disabilities.
The Department aimed to craft the exceptions with an eye towards
providing exceptions for content that would be less commonly used by
members of the public and would be particularly difficult for public
entities to make accessible quickly. And the Department reiterates
that subpart H of this part is adding specificity into the existing
title II regulatory framework when it comes to web content and
mobile apps. The Department emphasizes that, even if certain content
does not have to conform to the technical standard, public entities
still need to ensure that their services, programs, and activities
offered using web content and mobile apps are accessible to
individuals with disabilities on a case-by-case basis in accordance
with their existing obligations under title II of the ADA. These
obligations include making reasonable modifications to avoid
discrimination on the basis of disability, ensuring that
communications with people with disabilities are as effective as
communications with people without disabilities, and providing
people with disabilities an equal opportunity to participate in or
benefit from the entity's services, programs, and activities.\124\
For example, a public entity might need to provide a large print
version or a version of an archived document that implements some
WCAG criteria--such as a document explaining park shelter options
and rental prices from 2013--to a person with vision loss who
requests it, even though this content would fall within the archived
web content exception. Thus, Sec. 35.201's exceptions for certain
categories of content are layering specificity onto title II's
regulatory requirements. They do not function as permanent or
blanket exceptions to the ADA's nondiscrimination mandate. They also
do not add burdens on individuals with disabilities that did not
already exist as part of the existing title II regulatory framework.
As explained further, nothing in this part prohibits an entity from
going beyond Sec. 35.200's requirements to make content covered by
the exceptions fully or partially compliant with WCAG 2.1 Level AA.
---------------------------------------------------------------------------
\124\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160. For
more information about public entities' existing obligation to
ensure that communications with individuals with disabilities are as
effective as communications with others, see U.S. Dep't of Just.,
ADA Requirements: Effective Communication, ada.gov (Feb 28, 2020),
https://www.ada.gov/resources/effective-communication/ [https://perma.cc/CLT7-5PNQ].
---------------------------------------------------------------------------
The following discussion provides information on each of the
exceptions, including a discussion of public comments.
Archived Web Content
Public entities may retain a significant amount of archived
content, which may contain information that is outdated,
superfluous, or replicated elsewhere. The Department's understanding
is that, generally, this historic information is of interest to only
a small segment of the general population. The Department is aware
and concerned, however, that based on current technologies, public
entities would need to expend considerable resources to
retroactively make accessible the large quantity of historic or
otherwise outdated information that public entities created in the
past and that they may need or want to make available on their
websites. Thus, Sec. 35.201(a) provides an exception from the
requirements of Sec. 35.200 for web content that meets the
definition of ``archived web content'' in Sec. 35.104.\125\ As
mentioned previously, the definition of ``archived web content'' in
Sec. 35.104 has four parts. First, the web content was created
before the date the public entity is required to comply with subpart
H of this part, reproduces paper documents created before the date
the public entity is required to comply with subpart H, or
reproduces the contents of other physical media created before the
date the public entity is required to comply with subpart H. Second,
the web content is retained exclusively for reference, research, or
recordkeeping. Third, the web content is not altered or updated
after the date of archiving. Fourth, the web content is organized
and stored in a dedicated area or areas clearly identified as being
archived. The archived web content exception allows public entities
to retain historic web content, while utilizing their resources to
make accessible the most widely and consistently used content that
people need to access public services or to participate in civic
life.
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\125\ In the NPRM, Sec. 35.201(a) referred to archived web
content as defined in Sec. 35.104 ``of this chapter.'' 88 FR 52019.
The Department has removed the language ``of this chapter'' because
it was unnecessary.
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The Department anticipates that public entities may retain
various types of web content consistent with the exception for
archived web content. For example, a town might create a web page
for its annual parade. In addition to providing current information
about the time and place of the parade, the web page might contain a
separate archived section with several photos or videos from the
parade in past years. The images and videos would likely be covered
by the exception if they were created before the date the public
entity is required to comply with subpart H of this part, are
reproductions of paper documents created before the date the public
entity is required to comply with subpart H, or are reproductions of
the contents of other physical media created before the date the
public entity is required to comply with subpart H; they are only
used for reference, research, or recordkeeping; they are not altered
or updated after they are posted in the archived section of the web
page; and the archived section of the web page is clearly
identified. Similarly, a municipal court may have a web page that
includes links to download PDF documents that contain a photo and
short biography of past judges who are retired. If the PDF documents
were created before the date the public entity is required to comply
with subpart H, are reproductions of paper documents created before
the date the public entity is required to comply with subpart H, or
are reproductions of the contents of other physical media created
before the date the public entity is required to comply with subpart
H; they are only used for reference, research, or recordkeeping;
they are not altered or updated after they are posted; and the web
page with the links to download the documents is clearly identified
as being an archive, the documents would likely be covered by the
exception. The Department reiterates that these examples are meant
to be illustrative and that the analysis of whether a given piece of
web content meets the definition of ``archived web content'' depends
on the specific circumstances.
The Department recognizes, and commenters emphasized, that
archived information may be of interest to some members of the
public, including some individuals with disabilities, who are
conducting research or are otherwise interested in these historic
documents. Furthermore, some commenters expressed concerns that
public entities would begin (or already are in some circumstances)
improperly moving content into an archive. The Department emphasizes
that under this exception, public entities may not circumvent their
accessibility obligations by merely labeling their web content as
``archived'' or by refusing to make accessible any content that is
old. The exception focuses narrowly on content that satisfies all
four of the criteria necessary to qualify as ``archived web
content,'' namely web content that was created before the date the
public entity is required to comply with subpart H of this part,
reproduces paper documents created before the date the public entity
is required to comply with subpart H, or reproduces the contents of
other physical media created before the date the public entity is
required to comply with subpart H; is retained exclusively for
reference, research, or recordkeeping; is not altered or updated
after the date of archiving; and is organized and stored in a
dedicated area or areas clearly identified as being archived. If any
one of those criteria is not met, the content does not qualify as
``archived web content.'' For example, if an entity maintains
content for any purpose other than reference, research, or
recordkeeping, then that content would not fall within the exception
regardless of the date it was created, even if an entity labeled it
as ``archived'' or stored it in an area clearly identified as being
archived. Similarly, an entity would not be able to circumvent its
accessibility obligations by moving web content containing meeting
minutes or agendas related to meetings that take place after the
date the public entity is required to comply with subpart H from a
non-archived section of its website to an archived section, because
such newly created content would likely not satisfy the first part
of the definition based on the date it was created. Instead, such
[[Page 31362]]
newly created documents would generally need to conform to WCAG 2.1
Level AA for their initial intended purpose related to the meetings,
and they would need to remain accessible if they were later added to
an area clearly identified as being archived.
The Department received comments both supporting and opposing
the exception. In support of the exception, commenters highlighted
various benefits. For example, commenters noted that remediating
archived web content can be very burdensome, and the exception
allows public entities to retain content they might otherwise remove
if they had to make the content conform to WCAG 2.1 Level AA. Some
commenters also agreed that public entities should prioritize making
current and future web content accessible.
In opposition to the exception, commenters highlighted various
concerns. For example, some commenters stated that the exception
perpetuates unequal access to information for individuals with
disabilities, and it continues to inappropriately place the burden
on individuals with disabilities to identify themselves to public
entities, request access to content covered by the exception, and
wait for the request to be processed. Some commenters also noted
that the exception is not necessary because the compliance
limitations for fundamental alteration and undue financial and
administrative burdens would protect public entities from any
unrealistic requirements under subpart H of this part.\126\
Commenters also stated that the proposed exception is not timebound;
it does not account for technology that exists, or might develop in
the future, that may allow for easy and reliable wide-scale
remediation of archived web content; it might deter development of
technology that could reliably remediate archived web content; and
it does not include a time frame for the Department to reassess
whether the exception is necessary based on technological
developments.\127\ In addition, commenters stated that the exception
covers HTML content, which is easier to make accessible than other
types of web content; and it might cover archived web content posted
by public entities in accordance with other laws. As previously
discussed with respect to the definition of ``archived web
content,'' some commenters also stated that it is not clear when web
content is retained exclusively for reference, research, or
recordkeeping, and public entities may therefore improperly
designate important web content as archived.
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\126\ A discussion of the relationship between these limitations
and the exceptions in Sec. 35.201 is also provided in the general
explanation at the beginning of the discussion of Sec. 35.201 in
the section-by-section analysis.
\127\ The section-by-section analysis of Sec. 35.200 includes a
discussion of the Department's obligation to do a periodic
retrospective review of its regulations pursuant to Executive Order
13563.
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The Department has decided to keep the exception in Sec.
35.201. After reviewing the range of different views expressed by
commenters, the Department continues to believe that the exception
appropriately encourages public entities to utilize their resources
to make accessible the critical up-to-date materials that are most
consistently used to access public entities' services, programs, or
activities. The Department believes the exception provides a measure
of clarity and certainty for public entities about what is required
of archived web content. Therefore, resources that might otherwise
be spent making accessible large quantities of historic or otherwise
outdated information available on some public entities' websites are
freed up to focus on important current and future web content that
is widely and frequently used by members of the public. However, the
Department emphasizes that the exception is not without bounds. As
discussed in the preceding paragraphs, archived web content must
meet all four parts of the archived web content definition in order
to qualify for the exception. Content must meet the time-based
criteria specified in the first part of the definition. The
Department believes the addition of the first part of the definition
will lead to greater predictability about the application of the
exception for individuals with disabilities and public entities. In
addition, web content that is used for something other than
reference, research, or recordkeeping is not covered by the
exception.
The Department understands the concerns raised by commenters
about the burdens that individuals with disabilities may face
because archived web content is not required to conform to WCAG 2.1
Level AA. The Department emphasizes that even if certain content
does not have to conform to the technical standard, public entities
still need to ensure that their services, programs, and activities
offered using web content are accessible to individuals with
disabilities on a case-by-case basis in accordance with their
existing obligations under title II. These obligations include
making reasonable modifications to avoid discrimination on the basis
of disability, ensuring that communications with people with
disabilities are as effective as communications with people without
disabilities, and providing people with disabilities an equal
opportunity to participate in or benefit from the entity's services,
programs, or activities.\128\ Some commenters suggested that the
Department should also specify that if a public entity makes
archived web content conform to WCAG 2.1 Level AA in response to a
request from an individual with a disability, such as by remediating
a PDF stored in an archived area on the public entity's website, the
public entity should replace the inaccessible version in the archive
with the updated accessible version that was sent to the individual.
The Department agrees that this is a best practice public entities
could implement, but did not add this to the text of this part
because of the importance of providing public entities flexibility
to meet the needs of individuals with disabilities on a case-by-case
basis.
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\128\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------
Some commenters suggested that the Department should require
public entities to adopt procedures and timelines for how
individuals with disabilities could request access to inaccessible
archived web content covered by the exception. The Department
declines to make specific changes to the exception in response to
these comments. The Department reiterates that, even if content is
covered by this exception, public entities still need to ensure that
their services, programs, and activities offered using web content
are accessible to individuals with disabilities on a case-by-case
basis in accordance with their existing obligations under title
II.\129\ The Department notes that it is helpful to provide
individuals with disabilities with information about how to obtain
the reasonable modifications or auxiliary aids and services they may
need. Public entities can help to facilitate effective communication
by providing notice to the public on how an individual who cannot
access archived web content covered by the exception because of a
disability can request other means of effective communication or
reasonable modifications in order to access the public entity's
services, programs, or activities with respect to the archived
content. Public entities can also help to facilitate effective
communication by providing an accessibility statement that tells the
public how to bring web content or mobile app accessibility problems
to the public entities' attention, and developing and implementing a
procedure for reviewing and addressing any such issues raised. For
example, a public entity could help to facilitate effective
communication by providing an email address, accessible link,
accessible web page, or other accessible means of contacting the
public entity to provide information about issues that individuals
with disabilities may encounter accessing web content or mobile apps
or to request assistance. Providing this information will help
public entities to ensure that they are satisfying their obligations
to provide equal access, effective communication, and reasonable
modifications.
---------------------------------------------------------------------------
\129\ Id.
---------------------------------------------------------------------------
Some commenters suggested that this part should require a way
for users to search through archived web content, or information
about the contents of the archive should otherwise be provided, so
individuals with disabilities can identify what content is contained
in an archive. Some other commenters noted that searching through an
archive is inherently imprecise and involves sifting through many
documents, but the exception places the burden on individuals with
disabilities to know exactly which archived documents to request in
accessible formats. After carefully considering these comments, the
Department decided not to change the text of this part. The
Department emphasizes that web content that is not archived, but
instead notifies users about the existence of archived web content
and provides users access to archived web content, generally must
still conform to WCAG 2.1 Level AA. Therefore, the Department
anticipates that members of the public will have information about
what content is contained in an archive. For example, a public
entity's archive may include a list of links to download archived
documents. Under WCAG 2.1 Success Criterion 2.4.4, a public entity
would generally have to provide sufficient information in the text
of the link alone, or
[[Page 31363]]
in the text of the link together with the link's programmatically
determined link context, so users could understand the purpose of
each link and determine whether they want to access a given document
in the archive.\130\
---------------------------------------------------------------------------
\130\ See W3C, Understanding SC 2.4.4.: Link Purpose (In
Context) (June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/link-purpose-in-context.html [https://perma.cc/RE3T-J9PN].
---------------------------------------------------------------------------
Some commenters suggested that public entities should ensure
that the systems they use to retain and store archived web content
do not convert the content into an inaccessible format. The
Department does not believe it is necessary to make updates to this
part in response to these comments. Content that does not meet the
definition of ``archived web content'' must generally conform to
WCAG 2.1 Level AA, unless it qualifies for another exception, so
public entities would not be in compliance with subpart H of this
part if they stored such content using a system that converts
accessible web content into an inaccessible format. The Department
anticipates that public entities will still move certain newly
created web content into an archive alongside historic content after
the date they are required to comply with subpart H, even though the
newly created content will generally not meet the definition of
``archived web content.'' For example, after the time a city is
required to comply with subpart H, the city might post a PDF flyer
on its website identifying changes to the dates its sanitation
department will pick up recycling around a holiday. After the date
of the holiday passes, the city might move the flyer to an archive
along with other similar historic flyers. Because the newly created
flyer would not meet the first part of the definition of ``archived
web content,'' it would generally need to conform to WCAG 2.1 Level
AA even after it is moved into an archive. Therefore, the city would
need to ensure its system for retaining and storing archived web
content does not convert the flyer into an inaccessible format.
Some commenters also suggested that the exception should not
apply to public entities whose primary function is to provide or
make available what commenters perceived as archived web content,
such as some libraries, museums, scientific research organizations,
or state or local government agencies that provide birth or death
records. Commenters expressed concern that the exception could be
interpreted to cover the entirety of such entities' web content. The
Department reiterates that whether archived web content is retained
exclusively for reference, research, or recordkeeping depends on the
particular circumstances. For example, a city's research library may
have both archived and non-archived web content related to a city
park. If the library's collection included a current map of the park
that was created by the city, that map would likely not be retained
exclusively for reference, research, or recordkeeping, as it is a
current part of the city's program of providing and maintaining a
park. Furthermore, if the map was newly created after the date the
public entity was required to comply with subpart H of this part,
and it does not reproduce paper documents or the contents of other
physical media created before the date the public entity was
required to comply with subpart H, the map would likely not meet the
first part of the definition of ``archived web content.'' In
addition, the library may decide to curate and host an exhibition on
its website about the history of the park, which refers to and
analyzes historic web content pertaining to the park that otherwise
meets the definition of ``archived web content.'' All content used
to deliver the online exhibition likely would not be used
exclusively for reference, research, or recordkeeping, as the
library is using the materials to create and provide a new
educational program for the members of the public. The Department
believes the exception, including the definition of ``archived web
content,'' provides a workable framework for determining whether all
types of public entities properly designate web content as archived.
In the NPRM, the Department asked commenters about the
relationship between the content covered by the archived web content
exception and the exception for preexisting conventional electronic
documents set forth in Sec. 35.201(b).\131\ In response, some
commenters sought clarification about the connection between the
exceptions or recommended that there should only be one exception.
The Department believes both exceptions are warranted because they
play different roles in freeing up public entities' personnel and
financial resources to make accessible the most significant content
that they provide or make available. As discussed in the preceding
paragraphs, the archived web content exception provides a framework
for public entities to prioritize their resources on making
accessible the up-to-date materials that people use most widely and
consistently, rather than historic or outdated web content. However,
public entities cannot disregard such content entirely. Instead,
historic or outdated web content that entities intend to treat as
archived web content must be located and added to an area or areas
clearly designated as being archived. The Department recognizes that
creating an archive area or areas and moving content into the
archive will take time and resources. As discussed in the section-
by-section analysis of Sec. 35.201(b), the preexisting conventional
electronic documents exception provides an important measure of
clarity and certainty for public entities as they initially consider
how to address all the various conventional electronic documents
available through their web content and mobile apps. Public entities
will not have to immediately focus their time and resources on
remediating or archiving less significant preexisting documents that
are covered by the exception. Instead, public entities can focus
their time and resources elsewhere and attend to preexisting
documents covered by the preexisting conventional electronic
documents exception in the future as their resources permit, such as
by adding them to an archive.
---------------------------------------------------------------------------
\131\ 88 FR 51968.
---------------------------------------------------------------------------
The Department recognizes that there may be some overlap between
the content covered by the archived web content exception and the
exception for preexisting conventional electronic documents set
forth in Sec. 35.201(b). The Department notes that if web content
is covered by the archived web content exception, it does not need
to conform to WCAG 2.1 Level AA to comply with subpart H of this
part, even if the content fails to qualify for another exception,
such as the preexisting conventional electronic document exception.
For example, after the date a public university is required to
comply with subpart H, its athletics website may still include PDF
documents containing the schedules for sports teams from academic
year 2017-2018 that were posted in non-archived areas of the website
in the summer of 2017. Those PDFs may be covered by the preexisting
conventional electronic documents exception because they were
available on the university's athletics website prior to the date it
was required to comply with subpart H, unless they are currently
used to apply for, gain access to, or participate in a public
entity's services, programs, or activities, in which case, as
discussed in more detail in the section-by-section analysis of Sec.
35.201(b), they would generally need to conform to WCAG 2.1 Level
AA. However, if the university moved the PDFs to an archived area of
its athletics site and the PDFs satisfied all parts of the
definition of ``archived web content,'' the documents would not need
to conform to WCAG 2.1 Level AA, regardless of how the preexisting
conventional electronic document exception might otherwise have
applied, because the content would fall within the archived web
content exception.
Some commenters also made suggestions about public entities'
practices and procedures related to archived web content, but these
suggestions fall outside the scope of this part. For example, some
commenters stated that public entities' websites should not contain
archived materials, or that all individuals should have to submit
request forms to access archived materials. The Department did not
make any changes to this part in response to these comments because
this part is not intended to control whether public entities can
choose to retain archived material in the first instance, or whether
members of the public must follow certain steps to access archived
web content.
Preexisting Conventional Electronic Documents
Section 35.201(b) provides that conventional electronic
documents that are available as part of a public entity's web
content or mobile apps before the date the public entity is required
to comply with subpart H of this part do not have to comply with the
accessibility requirements of Sec. 35.200, unless such documents
are currently used to apply for, gain access to, or participate in a
public entity's services, programs, or activities. As discussed in
the section-by-section analysis of Sec. 35.104, the term
``conventional electronic documents'' is defined in Sec. 35.104 to
mean web content or content in mobile apps that is in the following
electronic file formats: portable document formats, word processor
file formats, presentation file formats, and spreadsheet file
formats. This list of
[[Page 31364]]
conventional electronic documents is an exhaustive list of file
formats, rather than an open-ended list. The Department understands
that many websites of public entities contain a significant number
of conventional electronic documents that may contain text, images,
charts, graphs, and maps, such as comprehensive reports on water
quality. The Department also understands that many of these
conventional electronic documents are in PDF format, but many
conventional electronic documents may also be formatted as word
processor files (e.g., Microsoft Word files), presentation files
(e.g., Apple Keynote or Microsoft PowerPoint files), and spreadsheet
files (e.g., Microsoft Excel files).
Because of the substantial number of conventional electronic
documents that public entities make available through their web
content and mobile apps, and because of the personnel and financial
resources that would be required for public entities to remediate
all preexisting conventional electronic documents to make them
accessible after the fact, the Department believes public entities
should generally focus their personnel and financial resources on
developing new conventional electronic documents that are accessible
and remediating existing conventional electronic documents that are
currently used to access the public entity's services, programs, or
activities. For example, if before the date a public entity is
required to comply with subpart H of this part the entity's website
contains a series of out-of-date PDF reports on local COVID-19
statistics, those reports generally need not conform to WCAG 2.1
Level AA. Similarly, if a public entity maintains decades' worth of
water quality reports in conventional electronic documents on the
same web page as its current water quality report, the old reports
that were posted before the date the entity was required to comply
with subpart H generally do not need to conform to WCAG 2.1 Level
AA. As the public entity posts new reports going forward, however,
those reports generally must conform to WCAG 2.1 Level AA.
The Department modified the language of this exception from the
NPRM. In the NPRM, the Department specified that the exception
applied to conventional electronic documents ``created by or for a
public entity'' that are available ``on a public entity's website or
mobile app.'' The Department believes the language ``created by or
for a public entity'' is no longer necessary in the regulatory text
of the exception itself because the Department updated the language
of Sec. 35.200 to clarify the overall scope of content generally
covered by subpart H of this part. In particular, the text of Sec.
35.200(a)(1) and (2) now states that subpart H applies to all web
content and mobile apps that a public entity provides or makes
available either directly or through contractual, licensing, or
other arrangements. Section 35.201(b), which is an exception to the
requirements of Sec. 35.200, is therefore limited by the new
language added to the general section. In addition, the Department
changed the language ``that are available on a public entity's
website or mobile app'' to ``that are available as part of a public
entity's web content or mobile apps'' to ensure consistency with
other parts of the regulatory text by referring to ``web content''
rather than ``websites.'' Finally, the Department removed the phrase
``members of the public'' from the language of the exception in the
proposed rule for consistency with the edits to Sec. 35.200
aligning the scope of subpart H with the scope of title II of the
ADA, as described in the explanation of Sec. 35.200 in the section-
by-section analysis.
Some commenters sought clarification about how to determine
whether a conventional electronic document is ``preexisting.'' They
pointed out that the date a public entity posted or last modified a
document may not necessarily reflect the actual date the document
was first made available to members of the public. For example, a
commenter noted that a public entity may copy its existing documents
unchanged into a new content management system after the date the
public entity is required to comply with subpart H of this part, in
which case the date stamp of the documents will reflect the date
they were copied rather than the date they were first made available
to the public. Another commenter recommended that the exception
should refer to the date a document was ``originally'' posted to
account for circumstances in which there is an interruption to the
time the document is provided or made available to members of the
public, such as when a document is temporarily not available due to
technical glitches or server problems.
The Department believes the exception is sufficiently clear.
Conventional electronic documents are preexisting if a public entity
provides them or makes them available prior to the date the public
entity is required to comply with subpart H of this part. While one
commenter recommended that the exception should not apply to
documents provided or made available during the two- or three-year
compliance timelines specified in Sec. 35.200(b), the Department
believes the timelines specified in that section are the appropriate
time frames for assessing whether a document is preexisting and
requiring compliance with subpart H. If a public entity changes or
revises a preexisting document following the date it is required to
comply with subpart H, the document would no longer be
``preexisting'' for the purposes of the exception. Whether documents
would still be preexisting if a public entity generally modifies or
updates the entirety of its web content or mobile apps after the
date it is required to comply with subpart H would depend on the
particular facts and circumstances. For example, if a public entity
moved all of its web content, including preexisting conventional
electronic documents, to a new content management system, but did
not change or revise any of the preexisting documents when doing so,
the documents would likely still be covered by the exception. In
contrast, if the public entity decided to edit the content of
certain preexisting documents in the process of moving them to the
new content management system, such as by updating the header of a
benefits application form to reflect the public entity's new mailing
address, the updated documents would no longer be preexisting for
the purposes of the exception. The Department emphasizes that the
purpose of the exception is to free up public entities' resources
that would otherwise be spent focusing directly on preexisting
documents covered by the exception.
Because the exception only applies to preexisting conventional
electronic documents, it would not cover documents that are open for
editing if they are changed or revised after the date a public
entity is required to comply with subpart H of this part. For
example, a town may maintain an editable word processing file, such
as a Google Docs file, that lists the dates on which the town held
town hall meetings. The town may post a link to the document on its
website so members of the public can view the document online in a
web browser, and it may update the contents of the document over
time after additional meetings take place. If the document was
posted to the town's website prior to the date it was required to
comply with subpart H, it would be a preexisting conventional
electronic document unless the town added new dates to the document
after the date it was required to comply with subpart H. If the town
made such additions to the document, the document would no longer be
preexisting. Nevertheless, there are some circumstances where
conventional electronic documents may be covered by the exception
even if copies of the documents can be edited after the date the
public entity is required to comply with subpart H. For example, a
public entity may post a Microsoft Word version of a flyer on its
website prior to the date it is required to comply with subpart H. A
member of the public could technically download and edit that Word
document after the date the public entity is required to comply with
subpart H, but their edits would not impact the ``official'' posted
version. Therefore, the official version would still qualify as
preexisting under the exception. Similarly, PDF files that include
fillable form fields (e.g., areas for a user to input their name and
address) may also be covered by the exception so long as members of
the public do not edit the content contained in the official posted
version of the document. However, as discussed in the following
paragraph, the exception does not apply to documents that are
currently used to apply for, gain access to, or participate in the
public entity's services, programs, or activities. The Department
notes that whether a PDF document is fillable may be relevant in
considering whether the document is currently used to apply for,
gain access to, or participate in a public entity's services,
programs, or activities. For example, a PDF form that must be filled
out and submitted when renewing a driver's license is currently used
to apply for, gain access to, or participate in a public entity's
services, programs, or activities, and therefore would not be
subject to the exception under Sec. 35.201(b) for preexisting
conventional electronic documents. One commenter recommended that
the Department clarify in the text of the regulation that
conventional electronic documents include only those documents that
are not open for editing by
[[Page 31365]]
the public. The Department believes this point is adequately
captured by the requirement that conventional electronic documents
must be preexisting to qualify for the exception.
This exception is not without bounds: it does not apply to any
preexisting documents that are currently used to apply for, gain
access to, or participate in the public entity's services, programs,
or activities. In referencing ``documents that are currently used,''
the Department intends to cover documents that are used at any given
point in the future, not just at the moment in time when the final
rule is published. For example, a public entity generally must make
a preexisting PDF application for a business license conform to WCAG
2.1 Level AA if the document is still currently used. The Department
notes that preexisting documents are also not covered by the
exception if they provide instructions or guidance related to other
documents that are directly used to apply for, gain access to, or
participate in the public entity's services, programs, or
activities. Therefore, in addition to making the aforementioned
preexisting PDF application for a business license conform to WCAG
2.1 Level AA, public entities generally must also make other
preexisting documents conform to WCAG 2.1 Level AA if they may be
needed to obtain the license, complete the application, understand
the process, or otherwise take part in the program, such as business
license application instructions, manuals, sample knowledge tests,
and guides, such as ``Questions and Answers'' documents.
Various commenters sought additional clarification about what it
means for conventional electronic documents to be ``used'' in
accordance with the limited scope of the exception. In particular,
commenters questioned whether informational documents are used by
members of the public to apply for, gain access to, or participate
in a public entity's services, programs, or activities. Some
commenters expressed concern that the scope of the exception would
be interpreted inconsistently, including with respect to documents
posted by public entities in accordance with other laws. Some
commenters also urged the Department to add additional language to
the exception, such as specifying that documents would not be
covered by the exception if they are used by members of the public
to ``enable or assist'' them to apply for, gain access to, or
participate in a public entity's services, programs, or activities,
or the documents ``provide information about or describe'' a public
entity's services, programs, or activities.
Whether a document is currently used to apply for, gain access
to, or participate in a public entity's services, programs, or
activities is a fact-specific analysis. For example, one commenter
questioned whether a document containing a city's description of a
public park and its accessibility provisions would be covered by the
exception if the document did not otherwise discuss a particular
event or program. The Department anticipates that the exception
would likely not cover such a document. One of the city's services,
programs, or activities is providing and maintaining a public park
and its accessibility features. An individual with a disability who
accesses the document before visiting the park to understand the
park's accessibility features would be currently using the document
to gain access to the park.
One commenter suggested that if a public entity cannot change
preexisting conventional electronic documents due to legal
limitations or other similar restrictions, then the public entity
should not have to make those documents accessible under subpart H
of this part, even if they are currently used by members of the
public to apply for, gain access to, or participate in a public
entity's services, programs, or activities. The Department did not
make changes to the exception because subpart H already includes a
provision that addresses such circumstances in Sec. 35.202. Namely,
public entities are permitted to use conforming alternate versions
of web content where it is not possible to make web content directly
accessible due to technical or legal limitations. Therefore, a
public entity could provide an individual with a disability a
conforming alternate version of a preexisting conventional
electronic document currently used to apply for, gain access to, or
participate in the public entity's services, programs, or activities
if the document could not be made accessible for the individual due
to legal limitations.
One commenter expressed concern that public entities might
convert large volumes of web content to formats covered by the
exception ahead of the compliance dates in subpart H of this part.
In contrast, a public entity stated that there is limited incentive
to rush to post inaccessible documents prior to the compliance dates
because documents are frequently updated, and it would be easier for
the public entity to create accessible documents in the first place
than to try to remediate inaccessible documents in the future. The
Department emphasizes that a public entity may not rely on the
exception to circumvent its accessibility obligations under subpart
H by, for example, converting all of its web content to conventional
electronic document formats and posting those documents before the
date the entity must comply with subpart H. Even if a public entity
did convert various web content to preexisting conventional
electronic documents before the date it was required to comply with
subpart H, the date the documents were posted is only one part of
the analysis under the exception. If any of the converted documents
are currently used to apply for, gain access to, or participate in
the public entity's services, programs, or activities, they would
not be covered by the exception and would generally need to conform
to WCAG 2.1 Level AA, even if those documents were posted before the
date the entity was required to comply with subpart H. And if a
public entity revises a conventional electronic document after the
date the entity must comply with subpart H, that document would no
longer qualify as ``preexisting'' and would thus need to be made
accessible as defined in Sec. 35.200.
The Department received comments both supporting and opposing
the exception. In support of the exception, commenters highlighted
various benefits. For example, commenters noted that the exception
would help public entities preserve resources because remediating
preexisting documents is time consuming and expensive. Commenters
also noted that the exception would focus public entities' resources
on current and future content rather than preexisting documents that
may be old, rarely accessed, or of little benefit. Commenters stated
that in the absence of this exception public entities might remove
preexisting documents from their websites.
In opposition to the exception, commenters highlighted various
concerns. For example, commenters argued that the exception is
inconsistent with the ADA's goal of equal access for individuals
with disabilities because it perpetuates unequal access to
information available through public entities' web content and
mobile apps, and it is unnecessary because the compliance
limitations for fundamental alteration and undue financial and
administrative burdens would protect public entities from any
unrealistic requirements under subpart H of this part. Commenters
also asserted that the exception excludes relevant and important
content from becoming accessible, and it inappropriately continues
to place the burden on individuals with disabilities to identify
themselves to public entities, request access to the content covered
by the exception, and wait for the request to be processed. In
addition, commenters argued that the exception covers file formats
that do not need to be covered by an exception because they can
generally be remediated easily; it is not timebound; it does not
account for technology that exists, or might develop in the future,
that may allow for easy and reliable wide-scale remediation of
conventional electronic documents; and it might deter development of
technology to reliably remediate conventional electronic documents.
Commenters also stated that the exception is confusing because, as
described elsewhere in this appendix, it may not be clear when
documents are ``preexisting'' or ``used'' to apply for, gain access
to, or participate in a public entity's services, programs, or
activities, and confusion or a lack of predictability would make
advocacy efforts more difficult.
After reviewing the comments, the Department has decided to keep
the exception in Sec. 35.201. The Department continues to believe
that the exception provides an important measure of clarity and
certainty for public entities as they initially consider how to
address all the various conventional electronic documents provided
and made available through their web content and mobile apps. The
exception will allow public entities to primarily focus their
resources on developing new conventional electronic documents that
are accessible as defined under subpart H of this part and
remediating preexisting conventional electronic documents that are
currently used to apply for, gain access to, or participate in their
services, programs, or activities. In contrast, public entities will
not have to expend their resources on identifying, cataloguing, and
remediating preexisting
[[Page 31366]]
conventional electronic documents that are not currently used to
apply for, gain access to, or participate in the public entity's
services, programs, or activities. Based on the exception, public
entities may thereby make more efficient use of the resources
available to them to ensure equal access to their services,
programs, or activities for all individuals with disabilities.
The Department understands the concerns raised by commenters
about the potential burdens that individuals with disabilities may
face because some conventional electronic documents covered by the
exception are not accessible. The Department emphasizes that even if
certain content does not have to conform to the technical standard,
public entities still need to ensure that their services, programs,
and activities offered using web content and mobile apps are
accessible to individuals with disabilities on a case-by-case basis
in accordance with their existing obligations under title II of the
ADA. These obligations include making reasonable modifications to
avoid discrimination on the basis of disability, ensuring that
communications with people with disabilities are as effective as
communications with people without disabilities, and providing
people with disabilities an equal opportunity to participate in or
benefit from the entity's services, programs, or activities.\132\
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\132\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160.
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Some commenters suggested that the Department should require
public entities to adopt procedures and timelines for how
individuals with disabilities could request access to inaccessible
conventional electronic documents covered by the exception. One
commenter also suggested that subpart H of this part should require
the ongoing provision of accessible materials to an individual with
a disability if a public entity is on notice that the individual
needs access to preexisting conventional electronic documents
covered by the exception in accessible formats. The Department
declines to make specific changes to the exception in response to
these comments and reiterates that public entities must determine on
a case-by-case basis how best to meet the needs of those individuals
who cannot access the content contained in documents that are
covered by the exception. It is helpful to provide individuals with
disabilities with information about how to obtain the modifications
or auxiliary aids and services they may need. Public entities can
help to facilitate effective communication by providing notice to
the public on how an individual who cannot access preexisting
conventional electronic documents covered by the exception because
of a disability can request other means of effective communication
or reasonable modifications in order to access the public entity's
services, programs, or activities with respect to the documents.
Public entities can also facilitate effective communication by
providing an accessibility statement that tells the public how to
bring web content or mobile app accessibility problems to the public
entities' attention and developing and implementing a procedure for
reviewing and addressing any such issues raised. For example, a
public entity could facilitate effective communication by providing
an email address, accessible link, accessible web page, or other
accessible means of contacting the public entity to provide
information about issues that individuals with disabilities may
encounter accessing web content or mobile apps or to request
assistance. Providing this information will help public entities to
ensure that they are satisfying their obligations to provide equal
access, effective communication, and reasonable modifications.
Commenters also suggested other possible revisions to the
exception. Commenters recommended various changes that would cause
conventional electronic documents covered by the exception to become
accessible over time. For example, commenters suggested that if a
public entity makes a copy of a preexisting conventional electronic
document covered by the exception conform to WCAG 2.1 Level AA in
response to a request from an individual with a disability, the
public entity should replace the inaccessible version posted on its
web content or mobile app with the updated accessible version that
was sent to the individual; the exception should ultimately expire
after a certain amount of time; public entities should be required
to remediate preexisting documents over time, initially prioritizing
documents that are most important and frequently accessed; or public
entities should be required to convert certain documents to HTML
format according to the same schedule that other HTML content is
made accessible.
The Department already expects the impact of the exception will
diminish over time for various reasons. For example, public entities
may update the documents covered by the exception, in which case
they are no longer ``preexisting.'' In addition, the Department
notes that there is nothing in subpart H of this part that would
prevent public entities from taking steps, such as those identified
by commenters, to make preexisting conventional electronic documents
conform to WCAG 2.1 Level AA. In fact, public entities might find it
beneficial to do so.
One commenter recommended that the exception should apply to all
preexisting conventional electronic documents regardless of how they
are used by members of the public. The Department does not believe
this approach is advisable because it has the potential to cause a
significant accessibility gap for individuals with disabilities if
public entities rely on conventional electronic documents that are
not regularly updated or changed. This could result in inconsistent
access to web content and mobile apps and therefore less
predictability for people with disabilities in terms of what to
expect when accessing public entities' web content and mobile apps.
One public entity recommended that the exception should also
apply to preexisting documents posted on a public entity's web
content or mobile apps after the date the public entity is required
to comply with subpart H of this part if the documents are of
historical value and were only minimally altered before posting. One
goal of the exception is to assist public entities in focusing their
personnel and financial resources on developing new web content and
mobile apps that are accessible as defined under subpart H.
Therefore, the exception neither applies to content that is newly
added to a public entity's web content or mobile app after the date
the public entity is required to comply with subpart H nor to
preexisting content that is updated after that date. The Department
notes that if a public entity wishes to post archival documents,
such as the types of documents described by the commenter, after the
date the public entity is required to comply with subpart H, the
public entity should assess whether the documents can be archived
under Sec. 35.201(a), depending on the facts. In particular, the
definition of ``archived web content'' in Sec. 35.104 includes web
content posted to an archive after the date a public entity is
required to comply with subpart H only if the web content was
created before the date the public entity is required to comply with
subpart H, reproduces paper documents created before the date the
public entity is required to comply with subpart H, or reproduces
the contents of other physical media created before the date the
public entity is required to comply with subpart H.
Several commenters also requested clarification about how the
exception applies to preexisting conventional electronic documents
that are created by a third party on behalf of a public entity or
hosted on a third party's web content or mobile apps on behalf of a
public entity. As previously discussed, the Department made general
changes to Sec. 35.200 that address public entities' contractual,
licensing, or other arrangements with third parties. The Department
clarified that the general requirements for web content and mobile
app accessibility apply when a public entity provides or makes
available web content or mobile apps, directly or through
contractual, licensing, or other arrangements. The same is also true
for the application of this exception. Therefore, preexisting
conventional electronic documents that a public entity provides or
makes available, directly or through contractual, licensing, or
other arrangements, would be subject to subpart H of this part, and
the documents would be covered by this exception unless they are
currently used to apply for, gain access to, or participate in the
public entity's services, programs, or activities.
Third-Party Content
Public entities' web content or mobile apps can include or link
to many different types of content created by someone other than the
public entity, some of which is posted by or on behalf of public
entities and some of which is not. For example, many public
entities' websites contain content created by third parties, like
scheduling tools, reservations systems, or payment systems. Web
content or content in mobile apps created by third parties may also
be posted by members of the public on a public entity's online
message board or other sections of the public entity's content that
allow public comment. In addition to content created by third
parties that is posted on the public
[[Page 31367]]
entity's own web content or content in mobile apps, public entities
frequently provide links to third-party content (i.e., links on the
public entity's website to content that has been posted on another
website that does not belong to the public entity), including links
to outside resources and information.
Subpart H of this part requires web content and mobile apps
created by third parties to comply with Sec. 35.200 if the web
content and mobile apps are provided or made available due to
contractual, licensing, or other arrangements with the public
entity. In other words, web content and mobile apps that are created
or posted on behalf of a public entity fall within the scope of
Sec. 35.200. Where a public entity links to third-party content but
the third-party content is truly unaffiliated with the public entity
and not provided on behalf of the public entity due to contractual,
licensing, or other arrangements, the linked content falls outside
the scope of Sec. 35.200. Additionally, due to the exception in
Sec. 35.201(c), content posted by a third party on an entity's web
content or mobile app falls outside the scope of Sec. 35.200,
unless the third party is posting due to contractual, licensing, or
other arrangements with the public entity.
The Department has heard a variety of views regarding whether
public entities should be responsible for ensuring that third-party
content on their websites and linked third-party content are
accessible as defined by Sec. 35.200. Some maintain that public
entities cannot be held accountable for third-party content on their
websites, and without such an exception, public entities may have to
remove the content altogether. Others have suggested that public
entities should not be responsible for third-party content and
linked content unless that content is necessary for individuals to
access public entities' services, programs, or activities. The
Department has also heard the view, however, that public entities
should be responsible for third-party content because a public
entity's reliance on inaccessible third-party content can prevent
people with disabilities from having equal access to the public
entity's own services, programs, or activities. Furthermore,
boundaries between web content generated by a public entity and by a
third party are often difficult to discern.
In anticipation of these concerns, the Department originally
proposed two limited exceptions related to third-party content in
the NPRM. After review of the public's comments to those exceptions
and the comments related to third-party content generally, the
Department is proceeding with one of those exceptions in subpart H
of this part, as described in the following paragraph. As further
explained elsewhere in this appendix, the Department notes that it
eliminates redundancy to omit the previously proposed exception for
third-party content linked from a public entity's website, but it
does not change the scope of content that is required to be made
accessible under subpart H.
Content Posted by a Third Party
Section 35.201(c) provides an exception to the web and mobile
app accessibility requirements of Sec. 35.200 for content posted by
a third party, unless the third party is posting due to contractual,
licensing, or other arrangements with the public entity. Section
35.201 includes this exception in recognition of the fact that
individuals other than a public entity's agents sometimes post
content on a public entity's web content and mobile apps. For
example, members of the public may sometimes post on a public
entity's online message boards, wikis, social media, or other web
forums, many of which are unmonitored, interactive spaces designed
to promote the sharing of information and ideas. Members of the
public may post frequently, at all hours of the day or night, and a
public entity may have little or no control over the content posted.
In some cases, a public entity's website may include posts from
third parties dating back many years, which are likely of limited,
if any, relevance today. Because public entities often lack control
over this third-party content, it may be challenging (or impossible)
for them to make it accessible. Moreover, because this third-party
content may be outdated or less frequently accessed than other
content, there may be only limited benefit to requiring public
entities to make this content accessible. Accordingly, the
Department believes an exception for this content is appropriate.
However, while this exception applies to web content or content in
mobile apps posted by third parties, it does not apply to the tools
or platforms the public uses to post third-party content on a public
entity's web content or content in mobile apps, such as message
boards--these tools and platforms generally must conform to the
technical standard in subpart H of this part.
This exception applies to, among other third-party content,
documents filed by independent third parties in administrative,
judicial, and other legal proceedings that are available on a public
entity's web content or mobile apps. This example helps to
illustrate why the Department believes this exception is necessary.
Many public entities have either implemented or are developing an
automated process for electronic filing of documents in
administrative, judicial, or legal proceedings in order to improve
efficiency in the collection and management of these documents.
Courts and other public entities receive high volumes of filings in
these sorts of proceedings each year. Documents are often submitted
by third parties--such as a private attorney in a legal case or
other members of the public--and those documents often include
appendices, exhibits, or other similar supplementary materials that
may be difficult to make accessible.
However, the Department notes that public entities have existing
obligations under title II of the ADA to ensure the accessibility of
their services, programs, or activities.\133\ Accordingly, for
example, if a person with a disability is a party to a case and
requests access to inaccessible filings submitted by a third party
in a judicial proceeding that are available on a State court's
website, the court generally must timely provide those filings in an
accessible format. Similarly, public entities generally must provide
reasonable modifications to ensure that individuals with
disabilities have access to the public entities' services, programs,
or activities. For example, if a hearing had been scheduled in the
proceeding referenced in this paragraph, the court might need to
postpone the hearing if the person with a disability was not
provided filings in an accessible format before the scheduled
hearing.
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\133\ See, e.g., Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and
35.160.
---------------------------------------------------------------------------
Sometimes a public entity itself chooses to post content created
by a third party on its website. The exception in Sec. 35.201(c)
does not apply to content posted by the public entity itself, or
posted on behalf of the public entity due to contractual, licensing,
or other arrangements, even if the content was originally created by
a third party. For example, many public entities post third-party
content on their websites, such as calendars, scheduling tools,
maps, reservations systems, and payment systems that were developed
by an outside technology company. Sometimes a third party might even
build a public entity's website template on the public entity's
behalf. To the extent a public entity chooses to rely on third-party
content on its website in these ways, it must select third-party
content that meets the requirements of Sec. 35.200. This is because
a public entity may not delegate away its obligations under the
ADA.\134\ If a public entity relies on a contractor or another third
party to post content on the public entity's behalf, the public
entity retains responsibility for ensuring the accessibility of that
content. To provide another example, if a public housing authority
relies on a third-party contractor to collect online applications on
the third-party contractor's website for placement on a waitlist for
housing, the public housing authority must ensure that this content
is accessible.
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\134\ See Sec. 35.130(b)(1)(ii) (prohibiting discrimination
through a contractual, licensing, or other arrangement that would
provide an aid, benefit, or service to a qualified individual with a
disability that is not equal to that afforded others).
---------------------------------------------------------------------------
The Department has added language to the third-party posted
exception in Sec. 35.201(c) to make clear that the exception does
not apply where a third party is posting on behalf of the public
entity. The language in Sec. 35.201(c) provides that the exception
does not apply if the third party is posting due to contractual,
licensing, or other arrangements with the public entity. The
Department received many comments expressing concern with how this
exception as originally proposed could have applied in the context
of third-party vendors and other entities acting on behalf of the
public entity. The Department added language to make clear that the
exception only applies where the third-party posted content is
independent from the actions of the public entity--that is, where
there is no arrangement under which the third party is acting on
behalf of the public entity. If such an arrangement exists, the
third-party content is not covered by the exception and must be made
accessible in accordance with subpart H of this part. This point is
also made clear in language the Department added to the general
requirements of Sec. 35.200, which provides that public entities
shall ensure web
[[Page 31368]]
content and mobile apps that the public entities provide or make
available, directly or through contractual, licensing, or other
arrangements, are readily accessible to and usable by individuals
with disabilities.\135\ The Department decided to add the same
clarification to the exception for third-party posted content
because this is the only exception in Sec. 35.201 that applies
solely based upon the identity of the poster (whereas the other
exceptions identify the type of content at issue), and the
Department believes clarity about the meaning of ``third party'' in
the context of this exception is critical to avoid the exception
being interpreted overly broadly. The Department believes this
clarification is justified by the concerns raised by commenters.
---------------------------------------------------------------------------
\135\ See supra section-by-section analysis of Sec.
35.200(a)(1) and (2) and (b)(1) and (2).
---------------------------------------------------------------------------
On another point, some commenters expressed confusion about when
authoring tools and other embedded content that enables third-party
postings would need to be made accessible. The Department wishes to
clarify that while the exception for third-party posted content
applies to that content which is posted by an independent third
party, the exception does not apply to the authoring tools and
embedded content provided by the public entity, directly or through
contractual, licensing, or other arrangements. Because of this,
authoring tools, embedded content, and other similar functions
provided by the public entity that facilitate third-party postings
are not covered by this exception and must be made accessible in
accordance with subpart H of this part. Further, public entities
should consider the ways in which they can facilitate accessible
output of third-party content through authoring tools and guidance.
Some commenters suggested that the Department should add regulatory
text requiring public entities to use authoring tools that generate
compliant third-party posted content. The Department declines to
adopt this approach at this time because the technical standard
adopted by subpart H is WCAG 2.1 Level AA, and the Department
believes the commenters' proposed approach would go beyond that
standard. The Department believes going beyond the requirements of
WCAG 2.1 Level AA in this way would undermine the purpose of relying
on an existing technical standard that web developers are already
familiar with, and for which guidance is readily available, which
could prove confusing for public entities.
The Department received many comments either supporting or
opposing the exception for content posted by a third party. Public
entities and trade groups representing public accommodations
generally supported the exception, and disability advocates
generally opposed the exception. Commenters supporting the exception
argued that the content covered by this exception would not be
possible for public entities to remediate since they lack control
over unaffiliated third-party content. Commenters in support of the
exception also shared that requiring public entities to remediate
this content would stifle engagement between public entities and
members of the public, because requiring review and updating of
third-party postings would take time. Further, public entities
shared that requiring unaffiliated third-party web content to be
made accessible would in many cases either be impossible or require
the public entity to make changes to the third party's content in a
way that could be problematic.
Commenters opposing the exception argued that unaffiliated
third-party content should be accessible so that individuals with
disabilities can engage with their State or local government
entities, and commenters shared examples of legal proceedings,
development plans posted by third parties for public feedback, and
discussions of community grievances or planning. Some of the
commenters writing in opposition to the exception expressed concern
that content provided by vendors and posted by third parties on
behalf of the public entity would also be covered by this exception.
The Department emphasizes in response to these commenters that this
exception does not apply where a third party such as a vendor is
acting on behalf of a public entity, through contractual, licensing,
or other arrangements. The Department added language to ensure this
point is clear in regulatory text, as explained previously.
After reviewing the comments, the Department emphasizes at the
outset the narrowness of this exception--any third-party content
that is posted due to contractual, licensing, or other arrangements
with the public entity would not be covered by this exception. The
Department sometimes refers to the content covered by this exception
as ``independent'' or ``unaffiliated'' content to emphasize that
this exception only applies to content that the public entity has
not contracted, licensed, or otherwise arranged with the third party
to post. This exception would generally apply, for example, where
the public entity enables comments from members of the public on its
social media page and third-party individuals independently comment
on that post, or where a public entity allows for legal filings
through an online portal and a third-party attorney independently
submits a legal filing on behalf of their private client (which is
then available on the public entity's web content or mobile apps).
The Department has determined that maintaining this exception is
appropriate because of the unique considerations relevant to this
type of content. The Department takes seriously public entities'
concerns that they will often be unable to ensure independent third-
party content is accessible because it is outside of their control,
and that if they were to attempt to control this content it could
stifle communication between the public and State or local
government entities. The Department further believes there are
unique considerations that could prove problematic with public
entities editing or requiring third parties to edit their postings.
For example, if public entities were required to add alt text to
images or maps in third parties' legal or other filings, it could
require the public entity to make decisions about how to describe
images or maps in a way that could be problematic from the
perspective of the third-party filer. Alternatively, if the public
entity were to place this burden on the third-party filer, it could
lead to different problematic outcomes. For example, if a public
entity rejects a posting from an unaffiliated third party (someone
who does not have obligations under subpart H of this part) and
requires the third party to update it, the result could be a delay
of an emergency or time-sensitive filing or even impeding access to
the forum if the third party is unable or does not have the
resources to remediate the filing.
The Department understands the concerns raised by the commenters
who oppose this exception, and the Department appreciates that the
inclusion of this exception means web content posted by third
parties may not consistently be accessible by default. The
Department emphasizes that even if certain content does not have to
conform to the technical standard, public entities still need to
ensure that their services, programs, and activities offered using
web content and mobile apps are accessible to individuals with
disabilities on a case-by-case basis in accordance with their
existing obligations under title II of the ADA. These obligations
include making reasonable modifications to avoid discrimination on
the basis of disability, ensuring that communications with people
with disabilities are as effective as communications with people
without disabilities, and providing people with disabilities an
equal opportunity to participate in or benefit from the entity's
services, programs, or activities.\136\
---------------------------------------------------------------------------
\136\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------
The Department believes the balance this exception strikes thus
ensures accessibility to the extent feasible without requiring
public entities to take actions that may be impossible or lead to
problematic outcomes as described previously. These problematic
outcomes include public entities needing to characterize independent
third-party content by adding image descriptions, for example, and
stifling engagement between public entities and the public due to
public entities' need to review and potentially update independent
third-party posts, which could lead to delay in posting. Independent
third-party content should still be made accessible upon request
when required under the existing obligations within title II of the
ADA. However, public entities are not required to ensure the
accessibility at the outset of independent third-party content. The
Department believes, consistent with commenters' suggestions, that
reliance solely on the fundamental alteration or undue burdens
provisions discussed in the ``Duties'' section of the section-by-
section analysis of Sec. 35.204 would not avoid these problematic
outcomes. This is because, for example, even where the public entity
may have the resources to make the third-party content accessible
(such as by making changes to the postings or blocking posting until
the third party makes changes), and even where the public entity
does not believe modifying the postings would result in a
fundamental alteration in the nature of the service, program, or
activity at issue, the problematic outcomes described previously
would likely persist. The Department thus believes that
[[Page 31369]]
this exception appropriately balances the relevant considerations
while ensuring access for individuals with disabilities.
Some commenters suggested alternative formulations that would
narrow or expand the exception. For example, commenters suggested
that the Department limit the exception to advertising and marketing
or activities not used to access government services, programs, or
activities; mandate that third-party postings providing official
comment on government actions still be required to be made
accessible; provide alternative means of access as permissible ways
of achieving compliance; consider more content as third-party
created content; provide for no liability for third-party sourced
content; require that emergency information posted by third parties
still be accessible; and require that public entities post guidance
on making third-party postings accessible. The Department has
considered these alternative formulations, and with each proposed
alternative the Department found that the proposal would not avoid
the problematic outcomes described previously, would result in
practical difficulties to implement and define, or would be too
expansive of an exception in that too much content would be
inaccessible to individuals with disabilities.
Commenters also suggested that the Department include a
definition of ``third party.'' The Department is declining to add
this definition because the critical factor in determining whether
this exception applies is whether the third party is posting due to
contractual, licensing, or other arrangements with the public
entity, and the Department believes the changes to the regulatory
text provide the clarity commenters sought. For example, the
Department has included language making clear that public entities
are responsible for the content of third parties acting on behalf of
State or local government entities through the addition of the
``contractual, licensing, or other arrangements'' clauses in the
general requirements and in this exception. One commenter also
suggested that subpart H of this part should cover third-party
creators of digital apps and content regardless of whether the apps
and content are used by public entities. Independent third-party
providers unaffiliated with public entities are not covered by the
scope of subpart H, as they are not title II entities.
Finally, the Department made a change to the exception for
third-party posted content from the NPRM to make the exception more
technology neutral. The NPRM provided that the exception applies
only to ``web content'' posted by a third party.\137\ The Department
received a comment suggesting that third-party posted content be
covered by the exception regardless of whether the content is posted
on web content or mobile apps, and several commenters indicated that
subpart H of this part should apply the same exceptions across these
platforms to ensure consistency in user experience and reduce
confusion. For example, if a third party posts information on a
public entity's social media page, that information would be
available on both the web and on a mobile app. However, without a
technology-neutral exception for third-party posted content, that
same information would be subject to different requirements on
different platforms, which could create perverse incentives for
public entities to only make certain content available on certain
platforms. To address these concerns, Sec. 35.201(c) includes a
revised exception for third-party posted content to make it more
technology neutral by clarifying that the exception applies to
``content'' posted by a third party. The Department believes this
will ensure consistent application of the exception whether the
third-party content is posted on web content or mobile apps.
---------------------------------------------------------------------------
\137\ 88 FR 52019.
---------------------------------------------------------------------------
Previously Proposed Exception for Third-Party Content Linked From a
Public Entity's Website
In the NPRM, the Department proposed an exception for third-
party content linked from a public entity's website. After reviewing
public comments on this proposed exception, the Department has
decided not to include it in subpart H of this part. The Department
agrees with commenters who shared that the exception is unnecessary
and would only create confusion. Further, the Department believes
that the way the exception was framed in the NPRM is consistent with
the way subpart H would operate in the absence of this exception
(with some clarifications to the regulatory text), so the fact that
this exception is not included in subpart H will not change what
content is covered by subpart H. Under subpart H, consistent with
the approach in the NPRM, public entities are not responsible for
making linked third-party content accessible where they do not
provide or make available that content, directly or through
contractual, licensing, or other arrangements.
Exception Proposed in the NPRM
The exception for third-party-linked content that was proposed
in the NPRM provided that a public entity would not be responsible
for the accessibility of third-party web content linked from the
public entity's website unless the public entity uses the third-
party web content to allow members of the public to participate in
or benefit from the public entity's services, programs, or
activities. Many public entities' websites include links to other
websites that contain information or resources in the community
offered by third parties that are not affiliated with the public
entity. Clicking on one of these links will take an individual away
from the public entity's website to the website of a third party.
Often, the public entity has no control over or responsibility for a
third party's web content or the operation of the third party's
website. Accordingly, the proposed regulatory text in the NPRM
provided that the public entity would have no obligation to make the
content on a third party's website accessible.\138\ This exception
was originally provided to make clear that public entities can
continue to provide links to independent third-party web content
without making the public entity responsible for the accessibility
of the third party's web content.
---------------------------------------------------------------------------
\138\ 88 FR 52019; see also id. at 51969 (preamble text).
---------------------------------------------------------------------------
However, in the NPRM, the Department provided that if the public
entity uses the linked third-party web content to allow members of
the public to participate in or benefit from the public entity's
services, programs, or activities, then the public entity must
ensure it only links to third-party web content that complies with
the web accessibility requirements of Sec. 35.200. The Department
clarified that this approach is consistent with public entities'
obligation to make all of their services, programs, and activities
accessible to the public, including those that public entities
provide through third parties.\139\
---------------------------------------------------------------------------
\139\ 88 FR 51969; see also Sec. 35.130(b)(1)(ii) (prohibiting
discrimination through a contractual, licensing, or other
arrangement that would provide an aid, benefit, or service to a
qualified individual with a disability that is not equal to that
afforded others).
---------------------------------------------------------------------------
Most commenters opining on this subject opposed the exception
for third-party content linked from a public entity's website,
including disability advocates and individuals with disabilities.
Commenters raised many concerns with the exception as drafted.
Principally, commenters shared that the exception could lead to
confusion about when third-party content is covered by subpart H,
and that it could result in critical third-party content being
interpreted to be excluded from the requirements of Sec. 35.200.
Although the Department proposed a limitation to the exception
(i.e., a scenario under which the proposed exception would not
apply) that would have required linked third-party content to be
made accessible when it is used to participate in or benefit from
the public entity's services, programs, or activities, commenters
pointed out that this limitation would be difficult to apply to
third-party content, and that many public entities would interpret
the exception to allow them to keep services, programs, and
activities inaccessible. Many commenters, including public entities,
even demonstrated this confusion through their comments. For
example, commenters believed that web content like fine payment
websites, zoning maps, and other services provided by third-party
vendors on behalf of public entities would be allowed to be
inaccessible under this exception. This misinterprets the proposed
exception as originally drafted because third-party web content that
is used to participate in or benefit from the public entity's
services, programs, or activities would have still been required to
be accessible as defined under proposed Sec. 35.201 due to the
limitation to the exception. But the Department noted that many
commenters from disability advocacy groups, public entities, and
trade groups representing public accommodations either expressed
concern with or confusion about the exception, or demonstrated
confusion through inaccurate statements about what content would
fall into this exception to the requirements in subpart H of this
part.
Further, commenters also expressed concern with relieving public
entities of the responsibility to ensure that the links they provide
lead to accessible content.
[[Page 31370]]
Commenters stated that when public entities provide links, they are
engaging in activities that would be covered by subpart H of this
part. In addition, commenters said that public entities might
provide links to places where people can get vaccinations or collect
information for tourists, and that these constitute the activities
of the public entity. Also, commenters opined that when public
entities engage in these activities, they should not be absolved of
the responsibility to provide information presented in a non-
discriminatory manner. Commenters said that public entities have
control over which links they use when they organize these pages,
and that public entities can and should take care to only provide
information leading to accessible web content. Commenters stated
that in many cases public entities benefit from providing these
links, as do the linked websites, and that public entities should
thus be responsible for ensuring the accessibility of the linked
content. Some commenters added that this exception would have
implied that title III entities are permitted to discriminate by
keeping their web content inaccessible, though the Department
emphasizes in response to these commenters that subpart H does not
alter the responsibilities title III entities have with regard to
the goods, services, privileges, or activities offered by public
accommodations on the web.\140\ Commenters universally expressed
their concern that the content at issue is often inaccessible,
accentuating this problem.
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\140\ See U.S. Dep't of Just., Guidance on Web Accessibility and
the ADA, ADA.gov (Mar. 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/WH9E-VTCY].
---------------------------------------------------------------------------
Some commenters supported the exception, generally including
individuals, public entities, and trade groups representing public
accommodations. These commenters contended that the content at issue
in this exception should properly be considered ``fluff,'' and that
it would be unrealistic to expect tourist or small business
promotion to exist through only accessible websites. The Department
also received some examples from commenters who supported the
exception of web content the commenters inaccurately believed would
be covered by the exception, such as highway toll management account
websites. The Department would have likely considered that type of
content to be required to comply with Sec. 35.200, even with the
exception, due to the limitation to the third-party-linked exception
as proposed in the NPRM. Many of the comments the Department
received on this proposed exception demonstrated confusion with how
the third-party-linked exception and its limitation as proposed in
the NPRM would apply in practice, which would lead to misconceptions
in terms of when public entities must ensure conformance to WCAG 2.1
and what kinds of content individuals with disabilities can expect
to be accessible.
Approach to Linked Third-Party Content in Subpart H of This Part
After reviewing public comments, the Department believes that
inclusion of this exception is unnecessary, would result in
confusion, and that removing the exception more consistently aligns
with the language of title II of the ADA and the Department's intent
in proposing the exception in the NPRM.
Consistent with what many commenters opined, the Department
believes that the proper analysis is whether an entity has directly,
or through contractual, licensing, or other arrangements, provided
or made available the third-party content. This means that, for
example, when a public entity posts links to third-party web content
on the public entity's website, the links located on the public
entity's website and the organization of the public entity's website
must comply with Sec. 35.200. Further, when a public entity links
to third-party web content that is provided by the public entity,
directly or through contractual, licensing, or other arrangements,
the public entity is also responsible for ensuring the accessibility
of that linked content. However, when public entities link to third-
party websites, unless the public entity has a contractual,
licensing, or other arrangement with the website to provide or make
available content, those third-party websites are not covered by
title II of the ADA, because they are not services, programs, or
activities provided or made available by public entities, and thus
public entities are not responsible for the accessibility of that
content.
Rather than conduct a separate analysis under the proposed
exception in the NPRM, the Department believes the simpler and more
legally consistent approach is for public entities to assess whether
the linked third-party content reflects content that is covered
under subpart H of this part to determine their responsibility to
ensure the accessibility of that content. If that content is
covered, it must be made accessible in accordance with the
requirements of Sec. 35.200. For example, if a public entity allows
the public to pay for highway tolls using a third-party website,
that website would be a service that the public entity provides
through arrangements with a third party, and the toll payment
website would need to be made accessible consistent with subpart H.
However, if the content is not provided or made available by a
public entity, directly or through contractual, licensing, or other
arrangements, even though the public entity linked to that content,
the public entity would not be responsible for making that content
accessible. The public entity would still need to ensure the links
themselves are accessible, but not the unaffiliated linked third-
party content. For example, if a public entity has a tourist
information website that provides a link to a private hotel's
website, then the public entity would need to ensure the link to
that hotel is accessible, because the link is part of the web
content of the public entity. The public entity would, for example,
need to ensure that the link does not violate the minimum color
contrast ratio by being too light of a color blue against a light
background, which would make it inaccessible to certain individuals
with disabilities.\141\ However, because the hotel website itself is
private and is not being provided on behalf of the public entity due
to a contractual, licensing, or other arrangement, the public entity
would not be responsible for ensuring the hotel website's ADA
compliance.\142\
---------------------------------------------------------------------------
\141\ See W3C, Web Content Accessibility Guidelines 2.1,
Contrast (Minimum) (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#contrast-minimum [https://perma.cc/VAA3-TYN9].
\142\ The Department reminds the public, however, that the hotel
would still have obligations under title III of the ADA. See U.S.
Dep't of Just., Guidance on Web Accessibility and the ADA, ADA.gov
(Mar. 18, 2022), https://www.ada.gov/resources/web-guidance/
[https://perma.cc/WH9E-VTCY].
---------------------------------------------------------------------------
The Department believes that this approach is consistent with
what the Department sought to achieve by including the exception in
the NPRM, so this modification to subpart H of this part from the
proposal in the NPRM does not change the web content that is
ultimately covered by subpart H. Rather, the Department believes
that removing the exception will alleviate the confusion expressed
by many commenters and allow public entities to make a more
straightforward assessment of the coverage of the web content they
provide to the public under subpart H. For example, a public entity
that links to online payment processing websites offered by third
parties to accept the payment of fees, parking tickets, or taxes
must ensure that the third-party web content it links to in order
for members of the public to pay for the public entity's services,
programs, or activities complies with the web accessibility
requirements of Sec. 35.200. Similarly, if a public entity links to
a third-party website that processes applications for benefits or
requests to sign up for classes or programs the public entity
offers, the public entity is using the third party's linked web
content as part of the public entity's services, programs, or
activities, and the public entity must thus ensure that it links to
only third-party web content that complies with the requirements of
Sec. 35.200.
The Department considered addressing commenters' confusion by
providing more guidance on the proposed exception, rather than
removing the exception. However, the Department believes that the
concept of an exception for this type of content, when that content
would not be covered by title II in the first place, would make the
exception especially prone to confusion, such that including it in
subpart H of this part even with further explanation would be
insufficient to avoid confusion. The Department believes that
because the content at issue would generally not be covered by title
II in the first place, including this exception could inadvertently
cause public entities to assume that the exception is broader than
it is, which could result in the inaccessibility of content that is
critical to accessing public entities' services, programs, or
activities.
The Department also reviewed proposals by commenters to both
narrow and expand the language of the exception proposed in the
NPRM. Commenters suggested narrowing the exception by revising the
limitation to cover information that ``enables or assists'' members
of the public to participate in or
[[Page 31371]]
benefit from services, programs, or activities. Commenters also
proposed expanding the exception by allowing third-party web content
to remain inaccessible if there is no feasible manner for the
content to be made compliant with the requirements of Sec. 35.200
or by removing the limitation. Several commenters made additional
alternative proposals to both narrow and expand the language of the
exception. The Department has reviewed these alternatives and is
still persuaded that the most prudent approach is removing the
exception altogether, for the reasons described previously.
External Mobile Apps
Many public entities use mobile apps that are developed, owned,
and operated by third parties, such as private companies, to allow
the public to access the public entity's services, programs, or
activities. This part of the section-by-section analysis refers to
mobile apps that are developed, owned, and operated by third parties
as ``external mobile apps.'' \143\ For example, members of the
public use external mobile apps to pay for parking in a city (e.g.,
``ParkMobile'' app \144\) or to submit non-emergency service
requests such as fixing a pothole or a streetlight (e.g.,
``SeeClickFix'' app \145\). In subpart H of this part, external
mobile apps are subject to Sec. 35.200 in the same way as mobile
apps that are developed, owned, and operated by a public entity. The
Department is taking this approach because such external apps are
generally made available through contractual, licensing, or other
means, and this approach ensures consistency with existing ADA
requirements that apply to other services, programs, and activities
that a public entity provides in this manner. Consistent with these
principles, if a public entity, directly or through contractual,
licensing, or other arrangements, provides or makes available an
external mobile app, that mobile app must comply with Sec. 35.200
unless it is subject to one of the exceptions outlined in Sec.
35.201.
---------------------------------------------------------------------------
\143\ The Department does not use the term ``third-party'' to
describe mobile apps in this section to avoid confusion. It is the
Department's understanding that the term ``third-party mobile app''
may have a different meaning in the technology industry, and some
understand ``a third-party app'' as an application that is provided
by a vendor other than the manufacturer of the device or operating
system provider. See Alice Musyoka, Third-Party Apps, Webopedia
(Aug. 4, 2022), https://www.webopedia.com/definitions/third-party-apps/ [https://perma.cc/SBW3-RRGN].
\144\ See ParkMobile Parking App, https://parkmobile.io [https://perma.cc/G7GY-MDFE].
\145\ See Using Mobile Apps in Government, IBM Ctr. for the Bus.
of Gov't, at 32-33 (2015), https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf
[https://perma.cc/248X-8A6C].
---------------------------------------------------------------------------
The Department requested feedback on the external mobile apps
that public entities use to offer their services, programs, or
activities and received comments on its approach to external mobile
apps. Commenters pointed out that external mobile apps are used for
a variety of purposes by public entities, including for public
information, updates on road conditions, transportation purposes,
information on recreation, class information, map-based tools for
finding specific information like air quality, and emergency
planning, among other things.
Commenters overwhelmingly supported the Department's position to
not include a wholesale exception for every external mobile app,
given how often these apps are used in public entities' services,
programs, and activities. As commenters noted, the public's reliance
on mobile devices makes access to external apps critical, and
commenters shared their belief that the usage of mobile devices,
like smartphones, will increase in the coming years. For example,
some commenters indicated that many individuals with disabilities,
especially those with vision disabilities, primarily rely on
smartphones rather than computers, and if mobile apps are not
accessible, then people who are blind or have low vision would need
to rely on others to use apps that include sensitive data like bank
account information. Accordingly, commenters argued there should be
little, if any, difference between the information and accessibility
provided using a mobile app and a conventional web browser, and if
the Department were to provide an exception for external mobile
apps, commenters said that there would be a large loophole for
accessibility because so many members of the public rely on external
mobile apps to access a public entity's services, programs, or
activities.
Some commenters sought clarity on the scope of external mobile
apps that might be covered by subpart H of this part, such as
whether apps used to vote in an election held by a public entity
would be covered. Under subpart H, external mobile apps that public
entities provide or make available, including apps used in a public
entity's election, would be covered by subpart H. As discussed in
the section-by-section analysis of Sec. 35.200, subpart H applies
to a mobile app even if the public entity does not create or own the
mobile app, if there is a contractual, licensing, or other
arrangement through which the public entity provides or makes the
mobile app available to the public.
Some commenters raised concerns with applying accessibility
standards to external mobile apps that a public entity provides or
makes available, directly or through contractual, licensing, or
other arrangements. Specifically, commenters indicated there may be
challenges related to costs, burdens, and cybersecurity with making
these apps accessible and, because external mobile apps are created
by third-party vendors, public entities may have challenges in
ensuring that these apps are accessible. Accordingly, some
commenters indicated the Department should set forth an exception
for external mobile apps. Another commenter suggested that the
Department should delay the compliance date of subpart H of this
part to ensure there is sufficient time for external mobile apps
subject to Sec. 35.200 to come into compliance with the
requirements in subpart H.
While the Department understands these concerns, the Department
believes that the public relies on many public entities' external
mobile apps to access public entities' services, programs, or
activities, and setting forth an exception for these apps would keep
public entities' services, programs, or activities inaccessible in
practice for many individuals with disabilities. The Department
believes that individuals with disabilities should not be excluded
from these government services because the external mobile apps on
which public entities rely are inaccessible. In addition, this
approach of applying ADA requirements to services, programs, or
activities that a public entity provides through a contractual,
licensing, or other arrangement with a third party is consistent
with the existing framework in title II of the ADA.\146\ Under this
framework, public entities have obligations in other title II
contexts where they choose to contract, license, or otherwise
arrange with third parties to provide services, programs, or
activities.\147\
---------------------------------------------------------------------------
\146\ See Sec. 35.130(b)(1) and (3).
\147\ For example, under title II, a State is required to make
sure that the services, programs, or activities offered by a State
park inn that is operated by a private entity under contract with
the State comply with title II. See 56 FR 35694, 35696 (July 26,
1991).
---------------------------------------------------------------------------
With respect to concerns about an appropriate compliance date,
the section-by-section analysis of Sec. 35.200 addresses this
issue. The Department believes the compliance dates in subpart H of
this part will provide sufficient time for public entities to ensure
they are in compliance with the requirements of subpart H. Further
lengthening the compliance dates would only further extend the time
that individuals with disabilities remain excluded from the same
level of access to public entities' services, programs, and
activities through mobile apps.
Previously Proposed Exceptions for Password-Protected Class or Course
Content of Public Educational Institutions
In the NPRM, the Department proposed exceptions to the
requirements of Sec. 35.200 for certain password-protected class or
course content of public elementary, secondary, and postsecondary
institutions.\148\ For the reasons discussed in this section, the
Department has decided not to include these exceptions in subpart H
of this part.\149\ Accordingly, under subpart H, password-protected
course content will be treated like any other content and public
educational institutions will generally need to ensure that that
content complies with WCAG 2.1 Level AA starting two or three years
after the publication of the final rule, depending on whether the
public educational institution is covered by Sec. 35.200(b)(1) or
(2).
---------------------------------------------------------------------------
\148\ See 88 FR 52019.
\149\ Some commenters asked for clarification about how the
proposed course content exceptions would operate in practice. For
example, one commenter asked for clarification about what it would
mean for a public educational institution to be ``on notice'' about
the need to make course content accessible for a particular student,
one of the limitations proposed in the NPRM. Because the Department
is eliminating the course content exceptions from subpart H of this
part, these questions about how the exceptions would have operated
are moot and are not addressed in subpart H.
---------------------------------------------------------------------------
[[Page 31372]]
Course Content Exceptions Proposed in the NPRM
The NPRM included two proposed exceptions for password-protected
class or course content of public educational institutions. The
first proposed exception, which was included in the NPRM as proposed
Sec. 35.201(e),\150\ stated that the requirements of Sec. 35.200
would not apply to course content available on a public entity's
password-protected or otherwise secured website for admitted
students enrolled in a specific course offered by a public
postsecondary institution.\151\ Although the proposed exception
applied to password-protected course content, it did not apply to
the Learning Management System platforms on which public educational
institutions make content available.\152\
---------------------------------------------------------------------------
\150\ Section 35.201(e) no longer refers to a course content
exception, but now refers to a different exception for preexisting
social media posts, as discussed in this section.
\151\ 88 FR 52019.
\152\ Id. at 51970.
---------------------------------------------------------------------------
This proposed exception was cabined by two proposed limitations,
which are scenarios under which the proposed exception would not
apply. The first such limitation provided that the proposed
exception would not apply if a public entity is on notice that an
admitted student with a disability is pre-registered in a specific
course offered by a public postsecondary institution and that the
student, because of a disability, would be unable to access the
content available on the public entity's password-protected or
otherwise secured website for the specific course.\153\ In those
circumstances, the NPRM proposed, all content available on the
public entity's password-protected or otherwise secured website for
the specific course must comply with the requirements of Sec.
35.200 by the date the academic term begins for that course
offering, and new content added throughout the term for the course
must also comply with the requirements of Sec. 35.200 at the time
it is added to the website.\154\
---------------------------------------------------------------------------
\153\ Id. at 52019.
\154\ Id.
---------------------------------------------------------------------------
The second limitation to the proposed exception for public
postsecondary institutions' course content provided that the
exception would not apply once a public entity is on notice that an
admitted student with a disability is enrolled in a specific course
offered by a public postsecondary institution after the start of the
academic term and that the student, because of a disability, would
be unable to access the content available on the public entity's
password-protected or otherwise secured website for the specific
course.\155\ In those circumstances, the NPRM proposed, all content
available on the public entity's password-protected or otherwise
secured website for the specific course must comply with the
requirements of Sec. 35.200 within five business days of such
notice, and new content added throughout the term for the course
must also comply with the requirements of Sec. 35.200 at the time
it is added to the website.\156\
---------------------------------------------------------------------------
\155\ Id.
\156\ Id.
---------------------------------------------------------------------------
The second proposed course content exception, which was included
in the NPRM as Sec. 35.201(f), proposed the same exception as
proposed Sec. 35.201(e), but for public elementary and secondary
schools. The proposed exception also contained the same limitations
and timing requirements as the proposed exception for public
postsecondary schools, but the limitations to the exception would
have applied not only when there was an admitted student with a
disability enrolled in the course whose disability made them unable
to access the course content, but also when there was a parent with
a disability whose child was enrolled in the course and whose
disability made them unable to access the course content.\157\
---------------------------------------------------------------------------
\157\ Id.
---------------------------------------------------------------------------
The Department proposed these exceptions in the NPRM based on
its initial assessment that it might be too burdensome to require
public educational institutions to make accessible all of the course
content that is available on password-protected websites,
particularly given that content can be voluminous and that some
courses in particular terms may not include any students with
disabilities or students whose parents have disabilities. However,
the Department recognized in the NPRM that it is critical for
students with disabilities to have access to course content for the
courses in which they are enrolled; the same is true for parents
with disabilities in the context of public elementary and secondary
schools. The Department therefore proposed procedures that a public
educational institution would have to follow to make course content
accessible on an individualized basis once the institution was on
notice that there was a student or parent who needed accessible
course content because of a disability. Because of the need to
ensure prompt access to course content, the Department proposed to
require public educational institutions to act quickly upon being on
notice of the need for accessible content; public entities would
have been required to provide accessible course content either by
the start of the term if the institution was on notice before the
date the term began, or within five business days if the institution
was on notice after the start of the term.
The Department stated in the NPRM that it believed the proposed
exceptions for password-protected course content struck the proper
balance between meeting the needs of students and parents with
disabilities while crafting a workable standard for public entities,
but it welcomed public feedback on whether alternative approaches
might strike a more appropriate balance.\158\ The Department also
asked a series of questions about whether these exceptions were
necessary or appropriate.\159\ For example, the Department asked how
difficult it would be for public educational institutions to comply
with subpart H of this part in the absence of these exceptions, what
the impact of the exceptions would be on individuals with
disabilities, how long it takes to make course content accessible,
and whether the Department should consider an alternative
approach.\160\
---------------------------------------------------------------------------
\158\ Id. at 51973, 51976.
\159\ Id. at 51973, 51974, 51976.
\160\ Id. at 51973, 51974, 51976.
---------------------------------------------------------------------------
Public Comments on Proposed Course Content Exceptions
The overwhelming majority of comments on this topic expressed
opposition to the course content exceptions as proposed in the NPRM.
Many commenters suggested that the Department should take an
alternative approach on this issue; namely, the exceptions should
not be included in subpart H of this part. Having reviewed the
public comments and given careful additional consideration to this
issue, the Department has decided not to include these exceptions in
subpart H. The public comments supported the conclusion that the
exceptions would exacerbate existing educational inequities for
students and parents with disabilities without serving their
intended purpose of meaningfully alleviating burdens for public
educational institutions.
Infeasibility for Public Educational Institutions
Many commenters, including some commenters affiliated with
public educational institutions, asserted that the course content
exceptions and limitations as proposed in the NPRM would not be
workable for schools, and would almost inevitably result in delays
in access to course content for students and parents with
disabilities. Commenters provided varying reasons for these
conclusions.
Some commenters argued that because making course content
accessible often takes time and intentionality to implement, it is
more efficient and effective for public educational institutions to
create policies and procedures to make course content accessible
proactively, without waiting for a student with a disability (or
student with a parent with a disability) to enroll and then making
content accessible reactively.\161\ Some commenters pointed out that
although the Department proposed the course content exceptions in an
effort to make it easier for public educational institutions to
comply with subpart H of this part, the exceptions would in fact
likely result in more work for entities struggling to remediate
content on the back end.
---------------------------------------------------------------------------
\161\ Many comments on this topic indicated that they were
drawing from the philosophy of ``universal design.'' See, e.g., 29
U.S.C. 3002(19).
---------------------------------------------------------------------------
Commenters noted that in many cases, public educational
institutions do not generate course content themselves, but instead
procure such content through third-party vendors. As a result, some
commenters stated, public educational institutions may be dependent
on vendors to make their course content accessible, many of which
are unable or unwilling to respond to ad hoc requests for
accessibility within the expedited time frames that would be
required to comply with the limitations to the proposed exceptions.
Some commenters argued that it is more efficient and effective to
incentivize third-party vendors to make course content produced for
public educational institutions accessible on the front end.
Otherwise, some commenters contended, it may fall to
[[Page 31373]]
individual instructors to scramble to make course content accessible
at the last minute, regardless of those instructors' background or
training on making content accessible, and despite the fact that
many instructors already have limited time to devote to teaching and
preparing for class. One commenter noted that public educational
institutions can leverage their contracting power to choose only to
work with third-party vendors that can offer accessible content.
This commenter noted that there is precedent for this approach, as
many universities and college stores already leverage their
contracting power to limit participation in certain student discount
programs to third-party publishers that satisfy accessibility
requirements. Some commenters suggested that rulemaking in this area
will spur vendors, publishers, and creators to improve the
accessibility of their offerings.
Some commenters also observed that even if public educational
institutions might be able to make a subset of content accessible
within the compressed time frames provided under the proposed
exceptions, it could be close to impossible for institutions to do
so for all course content for all courses, given the wide variation
in the size and type of course content. Some commenters noted that
content for science, technology, engineering, and mathematics
courses may be especially difficult to remediate under the expedited
time frames provided under the proposed exceptions. Some commenters
indicated that it is more effective for public educational
institutions to conduct preparations in advance to make all
materials accessible from the start. One commenter asserted that
remediating materials takes, on average, twice as long as developing
materials that are accessible from the start. Some commenters also
pointed out that it might be confusing for public educational
institutions to have two separate standards for the accessibility of
course content depending on whether there is a student (or student
with a parent) with a disability in a particular course.
Many commenters took particular issue with the five-day
remediation time frame for course content when a school becomes on
notice after the start of the term that there is a student or parent
with a disability who needs accessible course content. Some
commenters argued that this time frame was too short for public
entities to ensure the accessibility of all course content for a
particular course, while simultaneously being too long to avoid
students with disabilities falling behind. Some commenters noted
that the five-day time frame would be particularly problematic for
short courses that occur during truncated academic terms, which may
last only a small number of days or weeks.
Some commenters also argued that the course content exceptions
would create a series of perverse incentives for public educational
institutions and the third-party vendors with whom they work, such
as incentivizing institutions to neglect accessibility until the
last minute and attempt to rely on the fundamental alteration or
undue burdens limitations more frequently when they are unable to
comply as quickly as required under subpart H of this part. Some
commenters also contended that the course content exceptions would
undermine public educational institutions' settled expectations
about what level of accessibility is required for course content and
would cause the institutions that already think about accessibility
proactively to regress to a more reactive model. Some commenters
asserted that because the course content exceptions would cover only
password-protected or otherwise secured content, the exceptions
would also incentivize public educational institutions to place
course content behind a password-protected wall, thereby making less
content available to the public as a whole.
Some commenters asserted that if the exceptions were not
included in subpart H of this part, the existing fundamental
alteration and undue burdens limitations would provide sufficient
protection for public educational institutions. One commenter also
suggested that making all course content accessible would offer
benefits to public educational institutions, as accessible content
often requires less maintenance than inaccessible content and can
more readily be transferred between different platforms or accessed
using different tools. This commenter contended that by relying on
accessible content, public educational institutions would be able to
offer better services to all students, because accessible content is
more user friendly and provides value for all users.
Some commenters pointed out that there are other factors that
will ease the burden on public educational institutions of complying
with subpart H of this part without the course content exceptions
proposed in the NPRM. For example, one commenter reported that
elementary and secondary curriculum materials are generally procured
at the district level. Thus, course content is generally the same
for all schools in a given district. This commenter argued that
school districts could therefore address the accessibility of most
course materials for all schools in their district at once by making
digital accessibility an evaluation criterion in their procurement
process.
Impact on Individuals With Disabilities
As noted elsewhere in this appendix, many commenters asserted
that the course content exceptions proposed in the NPRM could result
in an untenable situation in which public educational institutions
would likely be unable to fully respond to individualized requests
for accessible materials, potentially leading to widespread
noncompliance with the technical standard and delays in access to
course content for students and parents with disabilities. Many
commenters emphasized the negative impact that this situation would
have on individuals with disabilities.
Some commenters highlighted the pervasive discrimination that
has affected generations of students with disabilities and prevented
them from obtaining equal access to education, despite existing
statutory and regulatory obligations. As one recent example, some
commenters cited studies conducted during the COVID-19 pandemic that
demonstrated inequities in access to education for students with
disabilities, particularly in the use of web-based educational
materials.\162\ Commenters stated that due to accessibility issues,
students with disabilities have sometimes been unable to complete
required assignments, needed continuous support from others to
complete their work, and as a result have felt frustrated,
discouraged, and excluded. Some commenters also reported that some
students with disabilities have dropped a class, taken an
incomplete, or left their academic program altogether because of the
inaccessibility of their coursework. Some commenters argued that the
proposed course content exceptions would exacerbate this
discouraging issue and would continue to exclude students with
disabilities from equally accessing an education and segregate them
from their classmates.
---------------------------------------------------------------------------
\162\ Arielle M. Silverman et al., Access and Engagement III:
Reflecting on the Impacts of the COVID-19 Pandemic on the Education
of Children Who Are Blind or Have Low Vision, Am. Found. for the
Blind (June 2022), https://afb.org/sites/default/files/2022-06/AFB_AccessEngagement_III_Report_Accessible_FINAL.pdf (A Perma
archive link was unavailable for this citation.); L. Penny Rosenblum
et al., Access and Engagement II: An Examination of How the COVID-19
Pandemic Continued to Impact Students with Visual Impairments, Their
Families, and Professionals Nine Months Later, Am. Found. for the
Blind (May 2021), https://static.afb.org/legacy/media/AFB_AccessEngagement_II_Accessible_F2.pdf?_ga=2.176468773.1214767753
[https://perma.cc/H5P4-JZAB]; see also L. Penny Rosenblum et al.,
Access and Engagement: Examining the Impact of COVID-19 on Students
Birth-21 with Visual Impairments, Their Families, and Professionals
in the United States and Canada, Am. Found. for the Blind (Oct.
2020), https://afb.org/sites/default/files/2022-03/AFB_Access_Engagement_Report_Revised-03-2022.pdf [https://perma.cc/T3AY-ULAQ].
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Some commenters contended that the proposed exceptions would
perpetuate the status quo by inappropriately putting the onus on
students (or parents) with disabilities to request accessible
materials on an individualized basis. Some commenters asserted that
this can be problematic because some individuals may not recognize
that they have an accessibility need that their school could
accommodate and because requesting accessible materials is sometimes
burdensome and results in unfair stigma or invasions of privacy.
Some commenters noted that this may result in students or parents
with disabilities not requesting accessible materials. Some
commenters also argued that because these proposed exceptions would
put public educational institutions in a reactionary posture and
place burdens on already-overburdened instructors, some instructors
and institutions might view requesting students as an inconvenience,
in spite of their obligations not to discriminate against those
students. One commenter noted that constantly having to advocate for
accessibility for years on end can be exhausting for students with
disabilities and damaging to their self-esteem, sense of belonging,
and ability to engage in academic exploration.
Some commenters also noted that the structure of the proposed
exceptions would be in significant tension with the typical
structure of a public educational institution's academic term. For
example, some
[[Page 31374]]
commenters noted that students, particularly students at public
postsecondary institutions, often have the opportunity to
electronically review course syllabi and materials and ``shop'' the
first sessions(s) of a particular course to determine whether they
wish to enroll, enroll in a course late, or drop a course.
Commenters stated that because these processes typically unfold
quickly and early in the academic term, the proposed course content
exceptions would make it hard or impossible for students with
disabilities to take advantage of these options that are available
to other students. Commenters also noted that the course content
exceptions could interfere with students' ability to transfer to a
new school in the middle of a term.
Some commenters also stated many other ways in which the delays
in access to course content likely resulting from these exceptions
could disadvantage students with disabilities. Some commenters noted
that even if public educational institutions were able to turn
around accessible materials within the compressed time frames
provided under the proposed exceptions--an unlikely result, for the
reasons noted elsewhere in this appendix--students with disabilities
still might be unable to access course materials as quickly as would
be needed to fully participate in their courses. For example, some
commenters stated that because students are often expected to
complete reading assignments before the first day of class, it is
problematic that the proposed exceptions did not require public
educational institutions to make course content accessible before
the first day of class for students who preregister. Some commenters
also observed that because some students with disabilities do not
file accessibility requests until after the start of the academic
term, it would be impossible to avoid delays in access to course
materials under the exceptions. Some commenters also noted that
students are often expected to collaborate on assignments, and even
a brief delay in access to course material could make it challenging
or impossible for students with disabilities to participate in that
collaborative process.
Some commenters argued that in the likely outcome that schools
are unable to provide accessible course content as quickly as the
proposed limitations to the exceptions would require, the resulting
delays could cause students with disabilities to fall behind in
course readings and assignments, sometimes forcing them to withdraw
from or fail the course. Some commenters noted that even if students
were able to rely on others to assist them in reviewing inaccessible
course materials, doing so is often slower and less effective, and
can have a negative emotional effect on students, undermining their
senses of independence and self-sufficiency.
Some commenters took particular issue with the proposed
exception for postsecondary course content. For example, some
commenters asserted that it is often more onerous and complicated
for students with disabilities to obtain accessible materials upon
request in the postsecondary context, given that public
postsecondary schools are not subject to the same obligations as
public elementary and secondary institutions to identify students
with disabilities under other laws addressing disability rights in
the educational context. Accordingly, those commenters argued, the
proposed exceptions might be especially harmful for postsecondary
students with disabilities.
Other commenters argued that the proposed exception for
elementary and secondary course content was especially problematic
because it would affect virtually every child with a disability in
the country. Some commenters contended that this exception would
undermine the requirements of other laws addressing disability
rights in the educational context. Some commenters also noted that
in the elementary and secondary school context, password-protected
course sites often enable parents to communicate with their
children's teachers, understand what their children are learning,
keep track of any potential issues related to their child's
performance, review time-sensitive materials like permission slips,
and obtain information about important health and safety issues
affecting their children. Some commenters opined that the proposed
course content exceptions could make it hard or impossible for
parents with disabilities to be involved in their children's
education in these ways.
Some commenters contended that the proposed course content
exceptions would be problematic in the wake of the COVID-19
pandemic, which has led to a rise in purely online courses. One
commenter pointed out that students with disabilities may be more
likely to enroll in purely online courses for a variety of reasons,
including that digital content tends to be more flexible and
operable with assistive devices, and it is therefore especially
important to ensure that online courses are fully accessible. At
least one commenter also stated that the proposed course content
exceptions would have treated students--some of whom pay tuition--
less favorably than the general public with respect to accessible
materials.
Although the Department anticipated that the limitations to the
proposed course content exceptions would naturally result in course
materials becoming accessible over time, some commenters took issue
with that prediction. Some commenters argued that because there is
significant turnover in instructors and course content, and because
the proposed limitations to the exceptions did not require content
to remain accessible once a student with a disability was no longer
in a particular course, the limitations to the exceptions as drafted
in the NPRM would not be likely to ensure a fully accessible future
in this area.
Limited Support for Course Content Exceptions
Although many commenters expressed opposition to the course
content exceptions, some commenters, including some commenters
affiliated with public educational institutions, expressed support
for some form of exception for course content. Some commenters
argued that it would be very challenging or infeasible for public
educational institutions to comply with subpart H of this part in
the absence of an exception, particularly when much of the content
is controlled by third-party vendors. Some commenters also noted
that public educational institutions may be short-staffed and have
limited resources to devote towards accessibility. Some commenters
stated that frequent turnover in faculty may make it challenging to
ensure that faculty members are trained on accessibility issues. One
commenter pointed out that requiring schools to make all course
content accessible may present challenges for professors, some of
whom are accustomed to being able to select course content without
regard to its accessibility. Notably, however, even among those
commenters who supported the concept of an exception, many did not
support the exceptions as drafted in the NPRM, in part because they
did not believe the proposed remediation time frames were realistic.
Approach to Course Content in Subpart H of This Part
Having reviewed the public comments, the Department believes it
is appropriate to, as many commenters suggested, not include the
previously proposed course content exceptions in subpart H of this
part. For many of the reasons noted by commenters, the Department
has concluded that the proposed exceptions would not meaningfully
ease the burden on public educational institutions and would
significantly exacerbate educational inequities for students with
disabilities. The Department has concluded that the proposed
exceptions would have led to an unsustainable and infeasible
framework for public entities to make course content accessible,
which would not have resulted in reliable access to course content
for students with disabilities. As many commenters noted, it would
have been extremely burdensome and sometimes even impossible for
public educational institutions to comply consistently with the
rapid remediation time frames set forth in the limitations to the
proposed exceptions in the NPRM, which would likely have led to
widespread delays in access to course content for students with
disabilities. While extending the remediation time frames might have
made it more feasible for public educational institutions to comply
under some circumstances, this extension would have commensurately
delayed access for students with disabilities, which would have been
harmful for the many reasons noted by commenters. The Department
believes that it is more efficient and effective for public
educational institutions to use the two- or three-year compliance
time frame to prepare to make course content accessible proactively,
instead of having to scramble to remediate content reactively.
Accordingly, under subpart H of this part, password-protected
course content will be treated like any other content and will
generally need to conform to WCAG 2.1 Level AA. To the extent that
it is burdensome for public educational institutions to make all of
their content, including course content, accessible, the Department
believes subpart H contains a series of mechanisms that are designed
to make it feasible for these institutions to comply, including the
delayed compliance dates discussed in Sec. 35.200, the
[[Page 31375]]
other exceptions discussed in Sec. 35.201, the provisions relating
to conforming alternate versions and equivalent facilitation
discussed in Sec. Sec. 35.202 and 35.203, the fundamental
alteration and undue burdens limitations discussed in Sec. 35.204,
and the approach to measuring compliance with Sec. 35.200 discussed
in Sec. 35.205.
Alternative Approaches Considered
There were some commenters that supported retaining the proposed
course content exceptions with revisions. Commenters suggested a
wide range of specific revisions, examples of which are discussed in
this section. The Department appreciates the variety of thoughtful
approaches that commenters proposed in trying to address the
concerns that would arise under the previously proposed course
content exceptions. However, for the reasons noted in this section,
the Department does not believe that the commenters' proposed
alternatives would avoid the issues associated with the exceptions
proposed in the NPRM. In addition, although many commenters
suggested requiring public entities to follow specific procedures to
comply with subpart H of this part, the sheer variety of proposals
the Department received from commenters indicates the harm from
being overly prescriptive in how public educational institutions
comply with subpart H. Subpart H provides educational institutions
with the flexibility to determine how best to bring their content
into compliance within the two or three years they have to begin
complying with subpart H.
Many commenters suggested that the Department should require all
new course content to be made accessible more quickly, while
providing a longer time period for public entities to remediate
existing course content. There were a wide range of proposals from
commenters about how this could be implemented. Some commenters
suggested that the Department could set up a prioritization
structure for existing content, requiring public educational
institutions to prioritize the accessibility of, for example, entry-
level course content; content for required courses; content for
high-enrollment courses; content for courses with high rates of
droppage, withdrawal, and failing grades; content for the first few
weeks of all courses; or, in the postsecondary context, content in
academic departments in which students with disabilities have
decided to major.
The Department does not believe this approach would be feasible.
Treating new course content differently than existing course content
could result in particular courses being partially accessible and
partially inaccessible, which could be confusing for both
educational institutions and students, and make it challenging for
students with disabilities to have full and timely access to their
courses. Moreover, even under this hybrid approach, the Department
would presumably need to retain remediation time frames for entities
to meet upon receiving a request to make existing course content
accessible. For the reasons discussed in this section, it would be
virtually impossible to set forth a remediation time frame that
would provide public educational institutions sufficient time to
make content accessible without putting students with disabilities
too far behind their peers. In addition, given the wide variation in
types of courses and public educational institution structures, it
would be difficult to set a prioritization structure for existing
content that would be workable across all such institutions.
Some commenters suggested that the Department should set an
expiration date for the course content exceptions. The Department
does not believe this would be a desirable solution because the
problems associated with the proposed exceptions--namely the harm to
individuals with disabilities stemming from delayed access to course
content and the likely infeasibility of complying with the expedited
time frames set forth in the limitations to the exceptions--would
likely persist during the lifetime of the exceptions.
Some commenters suggested that the Department could retain the
exceptions and accompanying limitations but revise their scope. For
example, commenters suggested that the Department could revise the
limitations to the exceptions to require public educational
institutions to comply only with the WCAG 2.1 success criteria
relevant to the particular student requesting accessible materials.
Although this might make it easier for public educational
institutions to comply in the short term, this approach would still
leave public entities in the reactionary posture that so many other
commenters criticized in this context and would dramatically reduce
the speed at which course content would become accessible to all
students. As another example, some commenters recommended that
instead of creating exceptions for all password-protected course
content, the Department could create exceptions from complying with
particular WCAG 2.1 success criteria that may be especially onerous.
The Department does not believe this piecemeal approach is
advisable, because it would result in course content being only
partially accessible, which would reduce predictability for
individuals with disabilities. This approach could also make it
confusing for public entities to determine the applicable technical
standard. Some commenters suggested that the Department should
require public entities to prioritize certain types of content that
are simpler to remediate. Others suggested that the Department could
require certain introductory course documents, like syllabi, to be
accessible across the board. One commenter suggested that the
Department require public educational institutions to make 20
percent of their course materials accessible each semester. The
Department believes that these types of approaches would present
similar issues as those discussed in this paragraph and would result
in courses being only partially accessible, which would reduce
predictability for individuals with disabilities and clarity for
public entities. These approaches would also limit the flexibility
that public entities have to bring their content into compliance in
the order that works best for them during the two or three years
they have to begin complying with subpart H of this part.
Some commenters suggested that the Department should revise the
remediation timelines in the limitations to the course content
exceptions. For example, one commenter suggested that the five-day
remediation time frame should be reduced to three days. Another
commenter suggested the five-day remediation time frame could be
expanded to 10 to 15 days. Some commenters suggested that the time
frame should be fact-dependent and should vary depending on factors
such as how often the class meets and the type of content. Others
recommended that the Department not adopt a specific required
remediation time frame, but instead provide that a 10-business-day
remediation time frame would be presumptively permissible.
The conflicting comments on this issue illustrate the challenges
associated with setting remediation time frames in this context. If
the Department were to shorten the remediation time frames, it would
make it even harder for public educational institutions to comply,
and commenters have already indicated that the previously proposed
remediation time frames would not be workable for those
institutions. If the Department were to lengthen the remediation
time frames, it would further exacerbate the inequities for students
with disabilities that were articulated by commenters. The
Department believes the better approach is to not include the course
content exceptions in subpart H of this part to avoid the need for
public educational institutions to make content accessible on an
expedited time frame on the back end, and to instead require public
entities to treat course content like any other content covered by
subpart H.
Some commenters suggested that the Department should take
measures to ensure that once course content is accessible, it stays
accessible, including by requiring institutions to regularly conduct
course accessibility checks. Without the course content exceptions
proposed in the NPRM, the Department believes these commenters'
concerns are addressed because course content will be treated like
all other content under Sec. 35.200, which requires public entities
to ensure on an ongoing basis that the web content and mobile apps
they provide or make available are readily accessible to and usable
by individuals with disabilities.
Some commenters suggested that the Department should give public
educational institutions additional time to comply with subpart H of
this part beyond the compliance time frames specified in Sec.
35.200(b). The Department does not believe this would be
appropriate. Although the requirement for public educational
institutions to provide accessible course content and comply with
title II is not new, this requirement has not resulted in widespread
equal access for individuals with disabilities to public entities'
web content and mobile apps. Giving public educational institutions
additional time beyond the two- to three-year compliance time frames
set forth in Sec. 35.200(b) would potentially prolong the exclusion
of individuals with disabilities from certain educational programs,
which would be especially problematic given that some of those
programs last only a few years
[[Page 31376]]
in total, meaning that individuals with disabilities might, for
example, be unable to access their public university's web content
and mobile apps for the entire duration of their postsecondary
career. While access to public entities' web content and mobile apps
is important for individuals with disabilities in all contexts, it
is uniquely critical to the public educational experience for
students with disabilities, because exclusion from that content and
those apps would make it challenging or impossible for those
individuals to keep up with their peers and participate in their
courses, which could have lifelong effects on career outcomes. In
addition, the Department received feedback indicating that the
course content offered by many public educational institutions is
frequently changing. The Department is therefore not convinced that
giving public educational institutions additional time to comply
with subpart H would provide meaningful relief to those entities.
Public educational institutions will continually need to make new or
changed course content accessible after the compliance date.
Extending the compliance date would, therefore, provide limited
relief while having a significant negative impact on individuals
with disabilities. Moreover, regardless of the compliance date of
subpart H, public educational institutions have an ongoing
obligation to ensure that their services, programs, and activities
offered using web content and mobile apps are accessible to
individuals with disabilities on a case-by-case basis in accordance
with their existing obligations under title II of the ADA.\163\
Accordingly, even if the Department were to further delay the
compliance time frames for public educational institutions, those
institutions would not be able to simply defer all accessibility
efforts in this area. The Department also believes it is appropriate
to treat public educational institutions the same as other public
entities with respect to compliance time frames, which will promote
consistency and predictability for individuals with disabilities.
Under this approach, some public educational institutions will
qualify as small public entities and will be entitled to an extra
year to comply, while other public educational institutions in
larger jurisdictions will need to comply within two years.
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\163\ See Sec. Sec. 35.130(b)(1)(ii) and (7) and 35.160.
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Some commenters recommended that the Department give public
educational institutions more flexibility with respect to their
compliance with subpart H of this part. For example, some commenters
suggested that the Department should give public educational
institutions additional time to conduct an assessment of their web
content and mobile apps and develop a plan for achieving compliance.
Some commenters suggested the Department should give public
educational institutions flexibility to stagger their compliance as
they see fit and to focus on the accessibility of those materials
that they consider most important. The Department does not believe
such deference is appropriate. As history has demonstrated,
requiring entities to comply with their nondiscrimination
obligations without setting clear and predictable standards for when
content must be made accessible has not resulted in widespread web
and mobile app accessibility. The Department therefore believes it
is critical to establish clear and consistent requirements for
public entities to follow in making their web content and mobile
apps accessible.
As noted in the preceding paragraph, although the Department
believes it is important to set clear and consistent requirements
for public educational institutions, the Department does not believe
it is appropriate to be overly prescriptive with respect to the
procedures that those institutions must follow to comply with
subpart H of this part. Some commenters suggested that the
Department should require public educational institutions to take
particular steps to comply with subpart H, such as by holding
certain trainings for faculty and staff and dedicating staff
positions and funding to accessibility. The Department believes it
is appropriate to allow public educational institutions to determine
how best to allocate their resources, so long as they satisfy the
requirements of subpart H.
Some commenters suggested that the Department should adopt a
more permissive approach to conforming alternate versions for public
educational institutions. Commenters also suggested that the
Department allow public educational institutions to provide an
equally effective method of alternative access in lieu of directly
accessible, WCAG 2.1 Level AA-conforming versions of materials. For
the reasons noted in the discussion of Sec. 35.202 in this
appendix, the Department believes that permitting public entities to
rely exclusively on conforming alternate versions when doing so is
not necessary for technical or legal reasons could result in
segregation of people with disabilities, which would be inconsistent
with the ADA's core principles of inclusion and integration.\164\
The same rationale would apply to public educational institutions
that wish to provide an equally effective method of alternative
access to individuals with disabilities.
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\164\ See, e.g., 42 U.S.C. 12101(a)(2) (finding that society has
tended to isolate and segregate individuals with disabilities);
Sec. 35.130(b)(1)(iv) (stating that public entities generally may
not provide different or separate aids, benefits, or services to
individuals with disabilities than is provided to others unless such
action is necessary); id. Sec. 35.130(d) (requiring that public
entities administer services, programs, and activities in the most
integrated setting appropriate).
---------------------------------------------------------------------------
Some commenters argued that the Department should provide
additional resources, funding, and guidance to public educational
institutions to help them comply with subpart H of this part. The
Department notes that it will issue a small entity compliance
guide,\165\ which should help public educational institutions better
understand their obligations under subpart H. The Department also
notes that there are free and low-cost training materials available
that would help public entities to produce content compliant with
WCAG 2.1 Level AA. In addition, although the Department does not
currently operate a grant program to assist public entities in
complying with the ADA, the Department will consider offering
additional technical assistance and guidance in the future to help
entities better understand their obligations.
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\165\ See Public Law 104-121, sec. 212, 110 Stat. at 858.
---------------------------------------------------------------------------
One commenter suggested that the Department should create a list
of approved third-party vendors for public educational institutions
to use to obtain accessible content. Any such specific list that the
Department could provide is unlikely to be helpful given the rapid
pace at which software and contractors' availability changes. Public
entities may find it useful to consult other publicly available
resources that can assist in selecting accessibility evaluation
tools and experts.\166\ Public entities do not need to wait for the
Department's guidance before consulting with technical experts and
using resources that already exist.
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\166\ See, e.g., W3C, Evaluating Web Accessibility Overview,
https://www.w3.org/WAI/test-evaluate/ [https://perma.cc/6RDS-X6AR]
(Aug. 1, 2023).
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One commenter suggested that the Department should require
public educational institutions to offer mandatory courses on
accessibility to students pursuing degrees in certain fields, such
as computer science, information technology, or computer information
systems. This commenter argued that this approach would increase the
number of information technology professionals in the future who
have the skills to make content accessible. The Department believes
this suggestion is outside of the scope of subpart H of this part,
which focuses on web and mobile app accessibility under title II.
The Department notes that public educational institutions are free
to offer such courses if they so choose.
One commenter suggested that if the course content exceptions
were retained, the Department should explicitly require public
educational institutions to provide clear notice to students with
disabilities on whether a particular piece of course content is
accessible and how to request accessible materials. The Department
believes these concerns are addressed by the decision not to include
the course content exceptions in subpart H of this part, which
should generally obviate the need for students with disabilities to
make individualized requests for course content that complies with
WCAG 2.1 Level AA.
Many commenters expressed concern about the extent to which
public educational institutions are dependent on third parties to
ensure the accessibility of course content, and some commenters
suggested that instead of or in addition to regulating public
educational institutions, the Department should also regulate the
third parties with which those institutions contract to provide
course materials. Because subpart H of this part is issued under
title II of the ADA, it does not apply to private third parties, and
the ultimate responsibility for complying with subpart H rests with
public entities. However, the Department appreciates the concerns
expressed by commenters that public educational institutions may
have limited power to require third-party vendors to make content
accessible on an expedited,
[[Page 31377]]
last-minute basis. The Department believes that not including the
course content exceptions in subpart H--coupled with the delayed
compliance dates in subpart H--will put public educational
institutions in a better position to establish contracts with third-
party vendors with sufficient lead time to enable the production of
materials that are accessible upon being created. One commenter
pointed out that, currently, much of the digital content for courses
for public educational institutions is created by a small number of
digital publishers. Accordingly, if the rulemaking incentivizes
those publishers to produce accessible content, that decision may
enable hundreds of public educational institutions to obtain
accessible content. The Department also expects that as a result of
the rulemaking, there will be an increase in demand for accessible
content from third-party vendors, and therefore a likely increase in
the number of third-party vendors that are equipped to provide
accessible content.
Some commenters also expressed views about whether public
educational institutions should be required to make posts by third
parties on password-protected course websites accessible. The
Department wishes to clarify that, because content on password-
protected course websites will be treated like any other content
under subpart H of this part, posts by third parties on course
websites may be covered by the exception for content posted by a
third party. However, that exception only applies where the third
party is not posting due to contractual, licensing, or other
arrangements with the public entity. Accordingly, if the third party
is acting on behalf of the public entity, the third-party posted
content exception would not apply. The Department believes that
whether particular third-party content qualifies for this exception
will involve a fact-specific inquiry.
Other Issues Pertaining to Public Educational Entities and Public
Libraries
In connection with the proposed exceptions for password-
protected course content, the Department also asked if there were
any particular issues the Department should consider regarding
digital books, textbooks, or libraries. The Department received a
variety of comments that addressed these topics.
Some commenters raised issues pertaining to intellectual
property law. In particular, commenters expressed different views
about whether public entities can alter or change inaccessible
electronic books created by third-party vendors to make them
accessible for individuals with disabilities. Several commenters
requested that the Department clarify how intellectual property law
applies to subpart H of this part. Subpart H is not intended to
interpret or clarify issues related to intellectual property law.
Accordingly, the Department declines to make changes to subpart H in
response to commenters or otherwise opine about public entities'
obligations with respect to intellectual property law. However, as
discussed with respect to Sec. 35.202, ``Conforming Alternate
Versions,'' there may be some instances in which a public entity is
permitted to make a conforming alternate version of web content
where it is not possible to make the content directly accessible due
to legal limitations.
Some commenters also discussed the EPUB file format. EPUB is a
widely adopted format for digital books.\167\ Commenters noted that
EPUBs are commonly used by public entities and that they should be
accessible. Commenters also stated that the exceptions for archived
web content and preexisting conventional electronic documents at
Sec. 35.201(a) and (b), should specifically address EPUBs, or that
EPUBs should fall within the meaning of the PDF file format with
respect to the definition of ``conventional electronic documents''
at Sec. 35.104. Commenters also suggested that other requirements
should apply to EPUBs, including W3C's EPUB Accessibility 1.1
standard \168\ and Editor's Draft on EPUB Fixed Layout
Accessibility.\169\
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\167\ See W3C, EPUB 3.3: Recommendation, Sec. 1.1 Overview (May
25, 2023), https://www.w3.org/TR/epub-33/ [https://perma.cc/G2WZ-3M9S].
\168\ W3C, EPUB Accessibility 1.1: Recommendation (May 25,
2023), https://www.w3.org/TR/epub-a11y-11/ [https://perma.cc/48A5-NC2B].
\169\ W3C, EPUB Fixed Layout Accessibility: Editor's Draft (Dec.
8, 2024), https://w3c.github.io/epub-specs/epub33/fxl-a11y/ [https://perma.cc/5SP7-VUHJ].
---------------------------------------------------------------------------
As discussed with respect to Sec. 35.104, the Department did
not change the definition of ``conventional electronic documents''
because it believes the current exhaustive list strikes the
appropriate balance between ensuring access for individuals with
disabilities and feasibility for public entities so that they can
comply with subpart H of this part. The Department also declines to
adopt additional technical standards or guidance specifically
related to EPUBs. The WCAG standards were designed to be
``technology neutral.'' \170\ This means that they are designed to
be broadly applicable to current and future web technologies.\171\
The Department is concerned that adopting multiple technical
standards related to various different types of web content could
lead to confusion. However, the Department notes that subpart H
allows for equivalent facilitation in Sec. 35.203, meaning that
public entities could still choose to apply additional standards
specifically related to EPUBs to the extent that the additional
standards provide substantially equivalent or greater accessibility
and usability as compared to WCAG 2.1 Level AA.
---------------------------------------------------------------------------
\170\ W3C, Introduction to Understanding WCAG (June 20, 2023),
https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU].
\171\ See W3C, Understanding Techniques for WCAG Success
Criteria (June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques [https://perma.cc/AMT4-XAAL].
---------------------------------------------------------------------------
Some commenters also addressed public educational entities' use
of digital textbooks in general. Commenters stated that many
educational courses use digital materials, including digital
textbooks, created by third-party vendors. Consistent with many
commenters' emphasis that all educational course materials must be
accessible under subpart H of this part, commenters also stated that
digital textbooks need to be accessible under subpart H. Commenters
stated that third-party vendors that create digital textbooks are in
the best position to make that content accessible, and it is costly
and burdensome for public entities to remediate inaccessible digital
textbooks. While one commenter stated that there are currently many
examples of accessible digital textbooks, other commenters stated
that many digital textbooks are not currently accessible. A
commenter also pointed out that certain aspects of digital books and
textbooks cannot be made accessible where the layout and properties
of the content cannot be changed without changing the meaning of the
content, and they recommended that the Department create exceptions
for certain aspects of digital books.
After weighing all the comments, the Department believes the
most prudent approach is to treat digital textbooks, including
EPUBs, the same as all other educational course materials. The
Department believes that treating digital textbooks, including
EPUBs, in any other way would lead to the same problems commenters
identified with respect to the proposed exceptions for password-
protected class or course content. For example, if the Department
created a similar exception for digital textbooks, it could result
in courses being partially accessible and partially inaccessible for
certain time periods while books are remediated to meet the needs of
an individual with a disability, which could be confusing for both
educational institutions and students with disabilities.
Furthermore, as discussed elsewhere in this appendix, it would be
virtually impossible to set forth a remediation time frame that
would provide public educational institutions sufficient time to
make digital textbooks accessible without putting students with
disabilities too far behind their peers. Accordingly, the Department
did not make any changes to subpart H of this part to specifically
address digital textbooks. The Department notes that if there are
circumstances where certain aspects of digital textbooks cannot
conform to WCAG 2.1 Level AA without changing the meaning of the
content, public entities may assess whether the fundamental
alteration or undue financial or administrative burdens limitations
apply, as discussed in Sec. 35.204. As noted elsewhere in this
appendix, the Department also expects that as a result of the
rulemaking, there will be an increase in demand for accessible
content from third-party vendors, and therefore a likely increase in
the number of third-party vendors that are equipped to provide
accessible digital textbooks.
Some commenters also discussed circumstances in which public
entities seek to modify particular web content to meet the specific
needs of individuals with disabilities. One commenter suggested that
the Department should provide public entities flexibility to focus
on meeting the individual needs of students, rather than simply
focusing on satisfying the requirements of WCAG 2.1 Level AA. The
Department believes that the title II regulation provides public
entities sufficient
[[Page 31378]]
flexibility to meet the needs of all individuals with disabilities.
The Department also recognizes that IDEA established the
National Instructional Materials Access Center (``NIMAC'') in 2004,
to assist State educational agencies and local educational agencies
with producing accessible instructional materials to meet the
specific needs of certain eligible students with disabilities.\172\
The NIMAC maintains a catalog of source files for K-12 instructional
materials saved in the National Instructional Materials
Accessibility Standard (``NIMAS'') format, and certain authorized
users and accessible media producers may download the NIMAS files
and produce accessible instructional materials that are distributed
to eligible students with disabilities through State systems and
other organizations.\173\ The Department believes subpart H of this
part is complementary to the NIMAC framework. In particular, if a
public entity provides or makes available digital textbooks or other
course content that conforms to WCAG 2.1 Level AA, but an individual
with a disability still does not have equal access to the digital
textbooks or other course content, the public entity may wish to
assess on a case-by-case basis whether materials derived from NIMAS
files can be used to best meet the needs of the individual.
Alternatively, a public entity may wish to use materials derived
from NIMAS files as a conforming alternate version where it is not
possible to make the digital textbook or other course content
directly accessible due to technical or legal limitations,
consistent with Sec. 35.202.
---------------------------------------------------------------------------
\172\ Assistance to States for the Education of Children With
Disabilities, 85 FR 31374 (May 26, 2020).
\173\ Nat'l Instructional Materials Access Center, About NIMAC,
https://www.nimac.us/about-nimac/ [https://perma.cc/9PQ2-GLQM] (last
visited Feb. 2, 2024).
---------------------------------------------------------------------------
Some commenters also raised issues relating to public libraries.
Commenters stated that libraries have varying levels of resources.
Some commenters noted that libraries need additional accessibility
training. One commenter requested that the Department identify
appropriate accessibility resources and training, and another
commenter recommended that the Department should consider allowing
variations in compliance time frames for libraries and educational
institutions based on their individual needs and circumstances.
Commenters noted that digital content available through libraries is
often hosted, controlled, or provided by third-party vendors, and
libraries purchase subscriptions or licenses to use the material.
Commenters stated that it is costly and burdensome for public
libraries to remediate inaccessible third-party vendor content.
However, one commenter highlighted a number of examples in which
libraries at public educational institutions successfully negotiated
licensing agreements with third-party vendors that included
requirements related to accessibility. Several commenters pointed
out that some public libraries also produce content themselves. For
example, some libraries participate in the open educational resource
movement, which promotes open and free digital educational
materials, and some libraries either operate publishing programs or
have a relationship with university presses.
After weighing all the comments, the Department believes the
most appropriate approach is to treat public libraries the same as
other public entities in subpart H of this part. The Department is
concerned that treating public libraries in any other way would lead
to similar problems commenters identified with respect to the
proposed exceptions for password-protected class or course content,
especially because some public libraries are connected with public
educational entities. With respect to comments about the resources
available to libraries and the time frame for libraries to comply
with subpart H, the Department also emphasizes that it is sensitive
to the need to set a workable standard for all different types of
public entities. The Department recognizes that public libraries can
vary as much as any other group of public entities covered by
subpart H, from small town libraries to large research libraries
that are part of public educational institutions. Under Sec.
35.200(b)(2), as under the NPRM, some public libraries will qualify
as small public entities and will have an extra year to comply.
Subpart H also includes exceptions that are intended to help ensure
feasibility for public entities so that they can comply with subpart
H and, as discussed in Sec. 35.204, public entities are not
required to undertake actions that would represent a fundamental
alteration in the nature of a service, program, or activity or
impose undue financial and administrative burdens. The Department
also notes there that there are free and low-cost training materials
available that would help public entities to produce content
compliant with WCAG 2.1 Level AA. Accordingly, the Department has
not made any changes to subpart H to specifically address public
libraries.
Some commenters also noted that public libraries may have
collections of materials that are archival in nature, and discussed
whether such materials should be covered by an exception. Subpart H
of this part contains an exception for archived web content that (1)
was created before the date the public entity is required to comply
with subpart H, reproduces paper documents created before the date
the public entity is required to comply with subpart H, or
reproduces the contents of other physical media created before the
date the public entity is required to comply with subpart H; (2) is
retained exclusively for reference, research, or recordkeeping; (3)
is not altered or updated after the date of archiving; and (4) is
organized and stored in a dedicated area or areas clearly identified
as being archived. In addition, subpart H contains an exception for
preexisting conventional electronic documents, unless such documents
are currently used to apply for, gain access to, or participate in a
public entity's services, programs, or activities. The Department
addressed these exceptions in more detail in the section-by-section
analysis of Sec. 35.104, containing the definitions of ``archived
web content'' and ``conventional electronic documents''; Sec.
35.201(a), the exception for archived web content; and Sec.
35.201(b), the exception for preexisting conventional electronic
documents.
Individualized, Password-Protected or Otherwise Secured Conventional
Electronic Documents
In Sec. 35.201(d), the Department has set forth an exception to
the requirements of Sec. 35.200 for conventional electronic
documents that are: (1) about a specific individual, their property,
or their account; and (2) password-protected or otherwise secured.
Many public entities use web content and mobile apps to provide
access to conventional electronic documents for their customers and
other members of the public. For example, some public utility
companies provide a website where customers can log in and view a
PDF version of their latest bill. Similarly, many public hospitals
offer a virtual platform where healthcare providers can send
conventional electronic document versions of test results and
scanned medical records to their patients. Unlike many other types
of content covered by subpart H of this part, these documents are
relevant only to an individual member of the public, and in many
instances, the individuals who are entitled to view a particular
individualized conventional electronic document will not need an
accessible version.
While public entities, of course, have existing title II
obligations to provide accessible versions of individualized,
password-protected or otherwise secured conventional electronic
documents in a timely manner when those documents pertain to
individuals with disabilities, or otherwise provide the information
contained in the documents to the relevant individual,\174\ the
Department recognizes that it may be too burdensome for some public
entities to make all such documents conform to WCAG 2.1 Level AA,
regardless of whether the individual to whom the document pertains
needs such access. The goal of this exception is to give public
entities flexibility to provide such documents, or the information
contained within such documents, to the individuals with
disabilities to whom they pertain in the manner that the entities
determine will be most efficient. Many public entities may retain
and produce a large number of individualized, password-protected or
otherwise secured conventional electronic documents, and may find
that remediating these documents--particularly ones that have been
scanned from paper copies--involves a more time- and resource-
intensive process than remediating other types of web content. In
that scenario, the Department believes that it would be most
impactful for public entities to focus their resources on making
versions that are accessible to those individuals who need them.
However, some public entities may conclude that it is most efficient
or effective to make all individualized, password-protected or
otherwise secured conventional electronic documents accessible by
using, for example, an accessible template to generate such
documents, and subpart H of this part preserves flexibility for
public entities that
[[Page 31379]]
wish to take that approach. This approach is consistent with the
broader title II regulatory framework. For example, public utility
companies are not required to affirmatively mail accessible bills to
all customers. Instead, the companies need only provide accessible
bills to those customers who need them because of a disability.
---------------------------------------------------------------------------
\174\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------
This exception is limited to ``conventional electronic
documents'' as defined in Sec. 35.104. This exception would,
therefore, not apply in a case where a public entity makes
individualized information available in formats other than a
conventional electronic document. For example, if a public medical
provider makes individualized medical records available on a
password-protected web platform as HTML content (rather than a PDF),
that content would not be subject to this exception. Those HTML
records, therefore, would need to be made accessible in accordance
with Sec. 35.200. On the other hand, if a public entity makes
individualized records available on a password-protected web
platform as PDF documents, those documents would fall under this
exception. In addition, although the exception would apply to
individualized, password-protected or otherwise secured conventional
electronic documents, the exception would not apply to the platform
on which the public entity makes those documents available. The
public entity would need to ensure that that platform complies with
Sec. 35.200. Further, web content and content in mobile apps that
does not take the form of individualized, password-protected or
otherwise secured conventional electronic documents but instead
notifies users about the existence of such documents must still
conform to WCAG 2.1 Level AA unless it is covered by another
exception. For example, a public hospital's health records portal
may include a list of links to download individualized, password-
protected PDF medical records. Under WCAG 2.1 Success Criterion
2.4.4, a public entity would generally have to provide sufficient
information in the text of the link alone, or in the text of the
link together with the link's programmatically determined link
context, so that a user could understand the purpose of each link
and determine whether they want to access a given document.\175\
---------------------------------------------------------------------------
\175\ See W3C, Understanding SC 2.4.4.: Link Purpose (In
Context) (June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/link-purpose-in-context.html [https://perma.cc/RE3T-J9PN].
---------------------------------------------------------------------------
This exception also only applies when the content is
individualized for a specific person or their property or account.
Examples of individualized documents include medical records or
notes about a specific patient, receipts for purchases (like a
parent's receipt for signing a child up for a recreational sports
league), utility bills concerning a specific residence, or
Department of Motor Vehicles records for a specific person or
vehicle. Content that is broadly applicable or otherwise for the
general public (i.e., not individualized) is not subject to this
exception. For instance, a PDF notice that explains an upcoming rate
increase for all utility customers and does not address a specific
customer's particular circumstances would not be subject to this
exception. Such a general notice would not be subject to this
exception even if it were attached to or sent with an individualized
letter, like a bill, that does address a specific customer's
circumstances.
This exception applies only to password-protected or otherwise
secured content. Content may be otherwise secured if it requires a
member of the public to use some process of authentication or login
to access the content. Unless subject to another exception,
conventional electronic documents that are on a public entity's
general, public web platform would not be covered by the exception.
The Department recognizes that there may be some overlap between
the content covered by this exception and the exception for certain
preexisting conventional electronic documents, Sec. 35.201(b). The
Department notes that if web content is covered by the exception for
individualized, password-protected or otherwise secured conventional
electronic documents, it does not need to conform to WCAG 2.1 Level
AA to comply with subpart H of this part, even if the content fails
to qualify for another exception, such as the preexisting
conventional electronic document exception. For example, a public
entity might retain on its website an individualized, password-
protected unpaid water bill in a PDF format that was posted before
the date the entity was required to comply with subpart H. Because
the PDF would fall within the exception for individualized,
password-protected or otherwise secured conventional electronic
documents, the documents would not need to conform to WCAG 2.1 Level
AA, regardless of how the preexisting conventional electronic
documents exception might otherwise have applied.
As noted elsewhere in this appendix, while the exception is
meant to alleviate the potential burden on public entities of making
all individualized, password-protected or otherwise secured
conventional electronic documents generally accessible, individuals
with disabilities must still be able to access information from
documents that pertain to them.\176\ The Department emphasizes that
even if certain content does not have to conform to the technical
standard, public entities still need to ensure that their services,
programs, and activities offered using web content and mobile apps
are accessible to individuals with disabilities on a case-by-case
basis in accordance with their existing obligations under title II
of the ADA. These obligations include making reasonable
modifications to avoid discrimination on the basis of disability,
ensuring that communications with people with disabilities are as
effective as communications with people without disabilities, and
providing people with disabilities an equal opportunity to
participate in or benefit from the entity's services, programs, or
activities.\177\
---------------------------------------------------------------------------
\176\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160.
\177\ See id.
---------------------------------------------------------------------------
The Department received comments expressing both support for and
opposition to this exception. A supporter of the exception observed
that, because many individualized, password-protected or otherwise
secured conventional electronic documents do not pertain to a person
with a disability and would never be accessed by a person with a
disability, it is unnecessary to require public entities to devote
resources to making all of those documents accessible at the outset.
Some commenters suggested that it could be burdensome for public
entities to make all of these documents accessible, regardless of
whether they pertain to a person with a disability. Some commenters
noted that even if some public entities might find it more efficient
to make all individualized, password-protected or otherwise secured
conventional electronic documents accessible from the outset, this
exception is valuable because it gives entities flexibility to
select the most efficient option to meet the needs of individuals
with disabilities.
The Department also received many comments opposing this
exception. Commenters pointed out that it is often critical for
individuals, including individuals with disabilities, to have timely
access to individualized, password-protected or otherwise secured
conventional electronic documents, because those documents may
contain sensitive, private, and urgently needed information, such as
medical test results, educational transcripts, or tax documents.
Commenters emphasized the negative consequences that could result
from an individual being unable to access these documents in a
timely fashion, from missed bill payments to delayed or missed
medical treatments. Commenters expressed concern that this exception
could exacerbate existing inequities in access to government
services for people with disabilities. Commenters argued that it is
ineffective and inappropriate to continue to put the burden on
individuals with disabilities to request accessible versions of
individualized documents, particularly given that many individuals
with disabilities may have repeated interactions with different
public entities that generate a large number of individualized,
password-protected or otherwise secured conventional electronic
documents. One commenter contended that the inclusion of this
exception is in tension with other statutes and Federal initiatives
that are designed to make it easier for individuals to access
electronic health information and other digital resources.
Commenters contended that public entities often do not have robust,
effective procedures under which people can make such requests and
obtain accessible versions quickly without incurring invasions of
privacy. Commenters argued that it can be cheaper and easier to make
individualized conventional electronic documents accessible at the
time they are created, instead of on a case-by-case basis,
particularly given that many such documents are generated from
templates, which can be made accessible relatively easily.
Commenters argued that many public entities already make these sorts
of documents accessible, pursuant to their longstanding ADA
obligations, so introducing this exception might lead some entities
to regress toward less overall accessibility. Some commenters
suggested that if the exception is retained in subpart H of this
part, the
[[Page 31380]]
Department should set forth specific procedures for public entities
to follow when they are on notice of the need to make individualized
documents accessible for a particular individual with a disability.
After reviewing the comments, the Department has decided to
retain this exception in subpart H of this part.\178\ The Department
continues to believe that public entities often provide or make
available a large volume of individualized, password-protected or
otherwise secured conventional electronic documents, many of which
do not pertain to individuals with disabilities, and it may be
difficult to make all such documents accessible. Therefore, the
Department believes it is sensible to permit entities to focus their
resources on ensuring accessibility for the specific individuals who
need accessible versions of those documents. If, as many commenters
suggested, it is in fact more efficient and less expensive for some
public entities to make all such documents accessible by using a
template, there is nothing in subpart H that prevents public
entities from taking that approach.
---------------------------------------------------------------------------
\178\ The Department made a non-substantive change to the header
of the exception to match the text of the exception.
---------------------------------------------------------------------------
The Department understands the concerns raised by commenters
about the potential burdens that individuals with disabilities may
face if individualized password-protected or otherwise secured
documents are not all made accessible at the time they are created
and about the potential negative consequences for individuals with
disabilities who do not have timely access to the documents that
pertain to them. The Department reiterates that, even when documents
are covered by this exception, the existing title II obligations
require public entities to furnish appropriate auxiliary aids and
services where necessary to ensure an individual with a disability
has, for example, an equal opportunity to enjoy the benefits of a
service.\179\ Such auxiliary aids and services could include, for
example, providing PDFs that are accessible. In order for such an
auxiliary aid or service to ensure effective communication, it must
be provided ``in a timely manner, and in such a way as to protect
the privacy and independence of the individual with a disability.''
\180\ Whether a particular solution provides effective communication
depends on circumstances in the interaction, including the nature,
length, complexity, and context of the communication.\181\ For
example, the presence of an emergency situation or a situation in
which information is otherwise urgently needed would impact what it
would mean for a public entity to ensure it is meeting its effective
communication obligations. Public entities can help to facilitate
effective communication by providing individuals with disabilities
with notice about how to request accessible versions of their
individualized documents. The Department also notes that where, for
example, a public entity is on notice that an individual with a
disability needs accessible versions of an individualized, password-
protected PDF water bill, that public entity is generally required
to continue to provide information from that water bill in an
accessible format in the future, and the public entity generally may
not require the individual with a disability to make repeated
requests for accessibility. Moreover, while individualized,
password-protected or otherwise secured conventional electronic
documents are subject to this exception, any public-facing, web- or
mobile app-based system or platform that a public entity uses to
provide or make available those documents, or to allow the public to
make accessibility requests, must itself be accessible under Sec.
35.200 if it is not covered by another exception.
---------------------------------------------------------------------------
\179\ See Sec. 35.160(b)(1). For more information about public
entities' existing obligation to ensure that communications with
individuals with disabilities are as effective as communications
with others, see U.S. Dep't of Just., ADA Requirements: Effective
Communication, ada.gov (Feb 28, 2020), https://www.ada.gov/resources/effective-communication/ [https://perma.cc/CLT7-5PNQ].
\180\ See Sec. 35.160(b)(2).
\181\ Id.
---------------------------------------------------------------------------
The Department also reiterates that a public entity might also
need to make reasonable modifications to ensure that a person with a
disability has equal access to its services, programs, or
activities.\182\ For example, if a public medical provider has a
policy under which administrative support staff are in charge of
uploading PDF versions of X-ray images into patients' individualized
accounts after medical appointments, but the provider knows that a
particular patient is blind, the provider may need to modify its
policy to ensure that a staffer with the necessary expertise
provides an accessible version of the information the patient needs
from the X-ray.
---------------------------------------------------------------------------
\182\ See Sec. 35.130(b)(7).
---------------------------------------------------------------------------
Some commenters suggested that the Department should require
public entities to adopt specific procedures when they are on notice
of an individual's need for accessible individualized, password-
protected or otherwise secured conventional electronic documents.
For example, some commenters suggested that public entities should
be required to establish a specific process through which
individuals with disabilities can ``opt in'' to receiving accessible
documents; to display instructions for how to request accessible
versions of documents in specific, prominent places on their
websites; to make documents accessible within a specified time frame
after being on notice of the need for accessibility (suggested time
frames ranged from 5 to 30 business days); or to remediate all
documents that are based on a particular template upon receiving a
request for remediation of an individualized document based on that
template. Although the Department appreciates the need to ensure
that individuals with disabilities can obtain easily accessible
versions of individualized, password-protected or otherwise secured
conventional electronic documents, the Department believes it is
appropriate to provide flexibility for a public entity in how it
reaches that particular goal on a case-by-case basis, so long as the
entity's process satisfies the requirements of title II.\183\
Moreover, because the content and quantity of individualized,
password-protected documents or otherwise secured may vary widely,
from a one-page utility bill to thousands of pages of medical
records, the Department does not believe it is workable to prescribe
a set number of days under which a public entity must make these
documents accessible. The wide range of possible time frames that
commenters suggested, coupled with the comments the Department
received on the remediation time frames that were associated with
the previously proposed course content exceptions, helps to
illustrate the challenges associated with selecting a specific
number of days for public entities to remediate content.
---------------------------------------------------------------------------
\183\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and
35.160(b)(2).
---------------------------------------------------------------------------
Some commenters suggested other revisions to the exception. For
example, some commenters suggested that the Department could limit
the exception to existing individualized, password-protected or
otherwise secured conventional electronic documents, while requiring
newly created documents to be automatically accessible. The
Department does not believe it is advisable to adopt this revision.
A central rationale of this exception--the fact that many
individuals to whom individualized documents pertain do not need
those documents in an accessible format--remains regardless of
whether the documents at issue are existing or newly created.
One commenter suggested the Department could create an
expiration date for the exception. The Department does not believe
this would be workable, because the challenges that public entities
might face in making all individualized, password-protected or
otherwise secured conventional electronic documents accessible
across the board would likely persist even after any expiration
date. One commenter suggested that the exception should not apply to
large public entities, such as States. The Department believes that
the rationales underlying this exception would apply to both large
and small public entities. The Department also believes that the
inconsistent application of this exception could create
unpredictability for individuals with disabilities. Other commenters
suggested additional revisions, such as limiting the exception to
documents that are not based on templates; requiring public entities
to remove inaccessible documents from systems of records once
accessible versions of those documents have been created; and
requiring public entities to use HTML pages, which may be easier to
make accessible than conventional electronic documents, to deliver
individualized information in the future. The Department believes it
is more appropriate to give public entities flexibility in how they
provide or make available individualized, password-protected or
otherwise secured documents to the public, so long as those entities
ensure that individuals with disabilities have timely access to the
information contained in those documents in an accessible format
that protects the privacy and independence of the individual with a
disability.
Some commenters asked the Department for additional
clarification about how the exception would operate in practice. One
commenter asked for clarification about how
[[Page 31381]]
this exception would apply to public hospitals and healthcare
clinics, and whether the exception would apply when a patient uses a
patient portal to schedule an appointment with their provider. The
Department wishes to clarify that this exception is not intended to
apply to all content or functionality that a public entity offers
that is password-protected. Instead, this exception is intended to
narrowly apply to individualized, password-protected or otherwise
secured conventional electronic documents, which are limited to the
following electronic file formats: PDFs, word processor file
formats, presentation file formats, and spreadsheet file formats.
Content that is provided in any other format is not subject to this
exception. In addition, while individualized, password-protected or
otherwise secured conventional electronic documents would be subject
to the exception, the platform on which those documents are provided
would not be subject to the exception and would need to conform to
WCAG 2.1 Level AA. Accordingly, in the scenario raised by the
commenter, the exception would not apply unless the public hospital
or healthcare clinic used an individualized, password-protected or
otherwise secured document in one of the file types listed in this
paragraph for scheduling appointments.
The Department also received some comments that suggested that
the Department take actions outside the scope of subpart H of this
part to make it easier for certain people with disabilities to
access platforms that provide individualized, password-protected or
otherwise secured documents. For example, the Department received a
comment asking the Department to require public entities to offer
``lower tech'' platforms that are generally simpler to navigate.
While the Department recognizes that these are important issues,
they are outside the scope of subpart H, and they are therefore not
addressed in detail in subpart H.
Preexisting Social Media Posts
Subpart H of this part includes an exception in Sec. 35.201(e)
for preexisting social media posts, which provides that the
requirements of Sec. 35.200 will not apply to a public entity's
social media posts that were posted before the date the public
entity is required to comply with subpart H. This means that public
entities will need to ensure that their social media posts going
forward are compliant with the requirements in subpart H beginning
on the compliance date outlined in Sec. 35.200(b), but not before
that date. The Department includes guidance on public entities' use
of social media platforms going forward in the section entitled
``Public Entities' Use of Social Media Platforms'' in the section-
by-section analysis of Sec. 35.200.
The Department is including this exception in subpart H of this
part because making preexisting social media posts accessible may be
impossible or result in a significant burden. Commenters told the
Department that many public entities have posted on social media
platforms for several years, often numbering thousands of posts,
which may not all be compliant with WCAG 2.1 Level AA. The benefits
of making all preexisting social media posts accessible will likely
be limited as these posts are generally intended to provide then-
current updates on platforms that are frequently refreshed with new
information. The Department believes public entities' limited
resources are better spent ensuring that current web content and
content in mobile apps are accessible, rather than reviewing all
preexisting social media posts for compliance or possibly deleting
public entities' previous posts if remediation is impossible.
In the NPRM, the Department did not propose any regulatory text
specific to the web content and content in mobile apps that public
entities make available via social media platforms. However, the
Department asked for the public's feedback on adding an exception
from coverage under subpart H of this part for a public entity's
social media posts if they were posted before the effective date of
subpart H.\184\ After reviewing public comment on this proposed
exception, the Department has decided to include an exception in
subpart H, which will apply to preexisting social media posts posted
before the compliance date of subpart H.
---------------------------------------------------------------------------
\184\ 88 FR 51962-51963.
---------------------------------------------------------------------------
The Department emphasizes that even if preexisting social media
posts do not have to conform to the technical standard, public
entities still need to ensure that their services, programs, and
activities offered using web content and mobile apps are accessible
to people with disabilities on a case-by-case basis in accordance
with their existing obligations under title II of the ADA. These
obligations include making reasonable modifications to avoid
discrimination on the basis of disability, ensuring that
communications with people with disabilities are as effective as
communications with people without disabilities, and providing
people with disabilities an equal opportunity to participate in or
benefit from the entity's services, programs, and activities.\185\
---------------------------------------------------------------------------
\185\ Sections 35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------
Most commenters supported an exception for preexisting social
media posts, including commenters representing public entities and
disability advocates. Commenters shared that making preexisting
social media posts accessible would require a massive allocation of
resources, and that in many cases these posts would be difficult or
impossible to remediate. Commenters shared that in practice, public
entities may need to delete preexisting social media posts to comply
with subpart H of this part in the absence of this exception, which
could result in a loss of historical information about public
entities' activities.
A few commenters shared alternative approaches to this
exception. One commenter suggested that highlighted or so-called
``pinned'' posts (e.g., social media posts saved at the top of a
page) be required to be made accessible regardless of the posting
date. Other commenters suggested that the exception should be
limited so as not to cover emergency information or information
pertinent to accessing core functions, expressing concern that these
postings would continue to be inaccessible between publication of
the final rule and the date that public entities are required to be
in compliance with subpart H of this part.
The Department agrees with the majority of commenters who
supported the exception as described in the NPRM, for the reasons
shared previously. The Department understands some commenters'
concerns with respect to pinned posts as well as concerns with
inaccessible postings made after publication of the final rule but
before the compliance date. However, the Department believes that
the approach provided in subpart H of this part appropriately
balances a variety of competing concerns. In particular, the
Department is concerned that it would be difficult to define pinned
posts given the varied and evolving ways in which different social
media platforms allow users to highlight and organize content, such
that it could result in confusion. Further, the Department believes
that the risk that preexisting pinned posts will stay pinned
indefinitely is low, because public entities will likely still want
to regularly update their pinned content. Also, requiring these
pinned posts to be made accessible risks some of the remediation
concerns raised earlier, as public entities may need to delete
pinned posts where remediation is infeasible. The Department also
has concerns with delineating what content should be considered
``core'' or ``emergency'' content.
For these reasons, the Department believes the appropriate
approach is to set forth, as it does in Sec. 35.201(e), an
exception from the requirements of Sec. 35.200 for all social media
posts that were posted prior to the compliance date for subpart H of
this part. The Department emphasizes, however, that after the
compliance date, public entities must ensure all of their social
media posts moving forward comply with subpart H.
In the NPRM, the Department asked for the public's feedback on
whether public entities' preexisting videos posted to social media
platforms should be covered by an exception due to these same
concerns or whether these platforms should otherwise be treated
differently. After reviewing public comments with respect to social
media, the Department does not believe it is prudent to single out
any individual social media platform or subset of content on those
platforms for unique treatment under subpart H of this part, as that
could lead to confusion and be difficult to implement, especially as
social media platforms continually evolve. The Department thus
maintains that social media posts must be made accessible under
Sec. 35.200 if they are posted after the compliance date of subpart
H. The Department recognizes that due to the continually evolving
nature of social media platforms, there may be questions about which
content is covered by the exception to subpart H. While the
Department is choosing not to single out platforms or subsets of
platforms in subpart H for unique treatment, the Department
encourages public entities to err on the side of ensuring
accessibility where there are doubts about coverage, to maximize
access for people with disabilities.
Commenters also suggested other ways to address social media,
such as providing that
[[Page 31382]]
public entities must create a timeline to incorporate accessibility
features into their social media or providing that public entities
can use separate accessible pages with all of their social media
posts. The Department believes the balance struck with this
exception in subpart H of this part is appropriate and gives public
entities sufficient time to prepare to make all of their new social
media posts accessible in accordance with subpart H after the
compliance date, consistent with the other content covered by
subpart H. One commenter also requested clarification on when social
media posts with links to third-party content would be covered by
subpart H. The Department notes that social media posts posted after
the compliance date are treated consistent with all other web
content and content in mobile apps, and the relevant exceptions may
apply depending on the content at issue.
Section 35.202--Conforming Alternate Versions
Section 35.202 sets forth the approach to ``conforming alternate
versions.'' Under WCAG, a ``conforming alternate version'' is a
separate web page that, among other things, is accessible, up to
date, contains the same information and functionality as the
inaccessible web page, and can be reached via a conforming page or
an accessibility-supported mechanism.\186\ Conforming alternate
versions are allowable under WCAG. For reasons explained in the
following paragraphs, the Department believes it is important to put
guardrails on when public entities may use conforming alternate
versions under subpart H of this part. Section 35.202, therefore,
specifies that the use of conforming alternate versions is permitted
only in limited, defined circumstances, which represents a slight
departure from WCAG 2.1. Section 35.202(a) states that a public
entity may use conforming alternate versions of web content to
comply with Sec. 35.200 only where it is not possible to make web
content directly accessible due to technical or legal limitations.
---------------------------------------------------------------------------
\186\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1:
Recommendation, Conforming Alternate Version (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#dfn-conforming-alternate-version [https://perma.cc/GWT6-AMAN]. WCAG 2.1 provides three
options for how a conforming alternate version can be reached--the
Department does not modify those options with respect to conforming
alternative versions under subpart H of this part.
---------------------------------------------------------------------------
Generally, to conform to WCAG 2.1, a web page must be directly
accessible in that it satisfies the success criteria for one of the
defined levels of conformance--in the case of subpart H of this
part, Level AA.\187\ However, as noted in the preceding paragraph,
WCAG 2.1 also allows for the creation of a ``conforming alternate
version.'' The purpose of a ``conforming alternate version'' is to
provide individuals with relevant disabilities access to the
information and functionality provided to individuals without
relevant disabilities, albeit via a separate vehicle. The Department
believes that having direct access to accessible web content
provides the best user experience for many individuals with
disabilities, and it may be difficult to reliably maintain
conforming alternate versions, which must be kept up to date. W3C
explains that providing a conforming alternate version is intended
to be a ``fallback option for conformance to WCAG and the preferred
method of conformance is to make all content directly accessible.''
\188\ However, WCAG 2.1 does not explicitly limit the circumstances
under which an entity may choose to create a conforming alternate
version of a web page instead of making the web page directly
accessible.
---------------------------------------------------------------------------
\187\ See id.
\188\ See W3C, Understanding Conformance, https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/QSG6-QCBL]
(June 20, 2023).
---------------------------------------------------------------------------
The Department is concerned that WCAG 2.1 can be interpreted to
permit the development of two separate versions of a public entity's
web content--one for individuals with relevant disabilities and
another for individuals without relevant disabilities--even when
doing so is unnecessary and when users with disabilities would have
a better experience using the main web content that is accessible.
Such an approach would result in segregated access for individuals
with disabilities and be inconsistent with how the ADA's core
principles of inclusion and integration have historically been
interpreted.\189\ The Department is also concerned that the frequent
or unbounded creation of separate web content for individuals with
disabilities may, in practice, result in unequal access to
information and functionality. For example, and as discussed later
in this section, the Department is concerned that an inaccessible
conforming alternate version may provide information that is
outdated or conflicting due to the maintenance burden of keeping the
information updated and consistent with the main web content. As
another example, use of a conforming alternate version may provide a
fragmented, separate, or less interactive experience for people with
disabilities because public entities may assume that interactive
features are not financially worthwhile or otherwise necessary to
incorporate in conforming alternate versions. Ultimately, as
discussed later in this section, the Department believes there are
particular risks associated with permitting the creation of
conforming alternate versions where not necessitated by the presence
of technical or legal limitations.
---------------------------------------------------------------------------
\189\ See Sec. 35.130(b)(1)(iv) (stating that public entities
generally may not provide different or separate aids, benefits, or
services to individuals with disabilities than is provided to others
unless such action is necessary); Sec. 35.130(d) (requiring that
public entities administer services, programs, and activities in the
most integrated setting appropriate); cf. 42 U.S.C. 12101(a)(2)
(finding that society has tended to isolate and segregate
individuals with disabilities).
---------------------------------------------------------------------------
Due to the concerns about user experience, segregation of users
with disabilities, unequal access to information, and maintenance
burdens mentioned in the preceding paragraph, the Department is
adopting a slightly different approach to conforming alternate
versions than that provided under WCAG 2.1. Instead of permitting
entities to adopt conforming alternate versions whenever they
believe it is appropriate, Sec. 35.202(a) states that a public
entity may use conforming alternate versions of web content to
comply with Sec. 35.200 only where it is not possible to make web
content directly accessible due to technical limitations (e.g.,
technology is not yet capable of being made accessible) or legal
limitations (e.g., web content that cannot be changed due to legal
reasons). The Department believes conforming alternate versions
should be used rarely--when it is truly not possible to make the
content accessible for reasons beyond the public entity's control.
However, Sec. 35.202 does not prohibit public entities from
providing alternate versions of web pages in addition to their WCAG
2.1 Level AA compliant main web page to possibly provide users with
certain types of disabilities a better experience.
The Department slightly revised the text that was proposed in
the NPRM for this provision.\190\ To ensure consistency with other
provisions of subpart H of this part, the previously proposed text
for Sec. 35.202 was revised to refer to ``web content'' instead of
``websites and web content.'' W3C's discussion of conforming
alternate versions generally refers to ``web pages'' and
``content.'' \191\ Other provisions of subpart H also refer to ``web
content.'' Introducing the concept of ``websites'' in this section
when the term is not used elsewhere in subpart H could cause
unnecessary confusion, so the Department revised this language for
consistency. This change is non-substantive, as ``web content''
encompasses ``websites.''
---------------------------------------------------------------------------
\190\ 88 FR 52020.
\191\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1:
Recommendation, Conforming Alternate Version (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#dfn-conforming-alternate-version [https://perma.cc/GWT6-AMAN].
---------------------------------------------------------------------------
In the NPRM, the Department requested comments on its approach
to conforming alternate versions. In response, the Department
received comments from a variety of commenters. Several commenters
supported the Department's proposed approach of permitting the use
of conforming alternative versions only when there are technical or
legal limitations. Commenters believed these limitations would
prevent public entities from using conforming alternate versions
frequently and for reasons that do not seem appropriate, such as
creating a conforming alternate version for a web page that is less
accessible because of the public entity's aesthetic preferences.
Some commenters suggested that the Department should permit
conforming alternate versions under a broader range of
circumstances. For example, some commenters indicated that a
conforming alternate version could provide an equal or superior
version of web content for people with disabilities. Other
commenters noted that some private companies can provide manual
alternate versions that look the same as the original web page but
that have invisible coding and are accessible. One commenter stated
that the transition from a
[[Page 31383]]
public entity's original website to an accessible version can be
made seamless. Another commenter noted that WCAG 2.1 permits
entities to adopt conforming alternate versions under broader
circumstances and argued that the Department should adopt this
approach rather than permitting conforming alternate versions only
where there are technical or legal limitations. One commenter argued
that it could be challenging for public entities that already offer
conforming alternate versions more broadly to adjust their approach
to comply with subpart H of this part. Some commenters gave examples
of scenarios in which they found it helpful or necessary to provide
conforming alternate versions.
A few commenters expressed serious concerns about the use of
conforming alternate versions. These commenters stated that
conforming alternate versions often result in two separate and
unequal websites. Commenters indicated that some entities'
conforming alternate versions neither conform to WCAG standards nor
contain the same functionality and content and therefore provide
fragmented, separate experiences that are less useful for people
with disabilities. Other commenters shared that these alternate
versions are designed in a way that assumes users are people who are
blind and thus do not want visual presentation, when other people
with disabilities rely on visual presentations to access the web
content. Further, one group shared that many people with
disabilities may be skeptical of conforming alternative versions
because historically they have not been updated, have been unequal
in quality, or have separated users by disability. Another commenter
argued that unlimited use of conforming alternate versions could
lead to errors and conflicting information because there are two
versions of the same content. One commenter suggested prohibiting
conforming alternate versions when interaction is a part of the
online user experience. Another commenter suggested permitting
conforming alternate versions only when a legal limitation makes it
impossible to make web content directly accessible, but not when a
technical limitation makes it impossible to do so.
Having reviewed public comments and considered this issue
carefully, the Department believes subpart H of this part strikes
the right balance to permit conforming alternate versions, but only
where it is not possible to make web content directly accessible due
to technical or legal limitations. The Department believes that this
approach ensures that generally, people with disabilities will have
direct access to the same web content that is accessed by people
without disabilities, but it also preserves flexibility for public
entities in situations where, due to a technical or legal
limitation, it is impossible to make web content directly
accessible. The Department also believes that this approach will
help avoid the concerns noted in the preceding paragraphs with
respect to segregation of people with disabilities by defining only
specific scenarios when the use of conforming alternate versions is
appropriate.
Some commenters emphasized the importance of ensuring that under
the limited circumstances in which conforming alternate versions are
permissible, those versions provide a truly equal experience.
Commenters also expressed concern that it might be hard for people
with disabilities to find links to conforming alternate versions.
The Department notes that under WCAG 2.1, a conforming alternate
version is defined, in part, as a version that ``conforms at the
designated level''; ``provides all of the same information and
functionality in the same human language''; and ``is as up to date
as the non-conforming content.'' \192\ Accordingly, even where it is
permissible for a public entity to offer a conforming alternate
version under subpart H of this part, the public entity must still
ensure that the conforming alternate version provides equal
information and functionality and is up to date. WCAG 2.1 also
requires that ``the conforming version can be reached from the non-
conforming page via an accessibility-supported mechanism,'' or ``the
non-conforming version can only be reached from the conforming
version,'' or ``the non-conforming version can only be reached from
a conforming page that also provides a mechanism to reach the
conforming version.'' \193\ The Department believes these
requirements will help to ensure that where a conforming alternate
version is permissible, people with disabilities will be able to
locate that page.
---------------------------------------------------------------------------
\192\ See id.
\193\ Id.
---------------------------------------------------------------------------
Some commenters recommended that the Department provide
additional guidance and examples of when conforming alternate
versions would be permissible, or asked the Department to clarify
whether conforming alternate versions would be permissible under
particular circumstances. The determination of when conforming
alternate versions are needed or permitted varies depending on the
facts. For example, a conforming alternate version would not be
permissible just because a town's web developer lacked the knowledge
or training needed to make content accessible; that would not be a
technical limitation within the meaning of Sec. 35.202. By
contrast, the town could use a conforming alternate version if its
web content included a new type of technology that it is not yet
possible to make accessible, such as a specific kind of immersive
virtual reality environment. Similarly, a town would not be
permitted to claim a legal limitation because its general counsel
failed to approve contracts for a web developer with accessibility
experience. Instead, a legal limitation would apply when the
inaccessible content itself could not be modified for legal reasons
specific to that content. The Department believes this approach is
appropriate because it ensures that, whenever possible, people with
disabilities have access to the same web content that is available
to people without disabilities.
One commenter stated that school districts and public
postsecondary institutions currently provide accessible alternative
content to students with disabilities that is equivalent to the
content provided to students without disabilities and that is
responsive to the individual student's needs. The commenter argued
that public educational institutions should continue to be able to
provide these alternative resources to students with disabilities.
The Department reiterates that although public educational
institutions, like all other public entities, will only be able to
provide conforming alternate versions in lieu of directly accessible
versions of web content under the circumstances specified in Sec.
35.202, nothing prevents a public educational institution from
providing a conforming alternate version in addition to the
accessible main version of its web content.
Other commenters requested that the Department impose deadlines
or time restrictions on how long a public entity can use a
conforming alternate version. However, the Department believes that
doing so would conflict with the rationale for permitting conforming
alternate versions. Where the technical limitations and legal
limitations are truly outside the public entity's control, the
Department believes it would be unreasonable to require the public
entity to surmount those limitations after a certain period of time,
even if they are still in place. However, once a technical or legal
limitation no longer exists, a public entity must ensure their web
content is directly accessible in accordance with subpart H of this
part.
A few commenters also sought clarification on, or broader
language to account for, the interaction between the allowance of
conforming alternate versions under Sec. 35.202 and the general
limitations provided in Sec. 35.204. These two provisions are
applicable in separate circumstances. If there is a technical or
legal limitation that prevents an entity from complying with Sec.
35.200 for certain content, Sec. 35.202 is applicable. The entity
can create a conforming alternate version for that content and,
under Sec. 35.202, that entity will be in compliance with subpart H
of this part. Separately, if a fundamental alteration or undue
financial and administrative burdens prevent a public entity from
complying with Sec. 35.200 for certain content, Sec. 35.204 is
applicable. As set forth in Sec. 35.204, the public entity must
still take any other action that would not result in such an
alteration or such burdens but would nevertheless ensure that
individuals with disabilities receive the benefits or services
provided by the public entity to the maximum extent possible. A
public entity's legitimate claim of fundamental alteration or undue
burdens does not constitute a legal limitation under Sec. 35.202
for which a conforming alternate version automatically suffices to
comply with subpart H. Rather, the public entity must ensure access
``to the maximum extent possible'' under the specific facts and
circumstances of the situation. Under the specific facts a public
entity is facing, the public entity's best option to ensure maximum
access may be an alternate version of its content, but the public
entity also may be required to do something more or something
different. Because the language of Sec. 35.204 already allows for
alternate versions if appropriate for the facts of public entity's
fundamental alteration or undue burdens, the Department does not see
a need to expand the language of Sec. 35.202 to address commenters'
concerns.
[[Page 31384]]
The Department also wishes to clarify the relationship between
Sec. Sec. 35.202 and 35.205, which are analyzed independently of
each other. Section 35.202 provides that a public entity may use
conforming alternate versions of web content, as defined by WCAG
2.1, to comply with Sec. 35.200 only where it is not possible to
make web content directly accessible due to technical or legal
limitations. Accordingly, if a public entity does not make its web
content directly accessible and instead provides a conforming
alternate version when not required by technical or legal
limitations, the public entity may not use that conforming alternate
version to comply with its obligations under subpart H of this part,
either by relying on Sec. 35.202 or by invoking Sec. 35.205.
Section 35.203 Equivalent Facilitation
Section 35.203 provides that nothing prevents a public entity
from using designs, methods, or techniques as alternatives to those
prescribed in the regulation, provided that such alternatives result
in substantially equivalent or greater accessibility and usability.
The 1991 and 2010 ADA Standards for Accessible Design both contain
an equivalent facilitation provision.\194\ The reason for allowing
for equivalent facilitation in subpart H of this part is to
encourage flexibility and innovation by public entities while still
ensuring equal or greater access to web content and mobile apps.
Especially in light of the rapid pace at which technology changes,
this provision is intended to clarify that public entities can use
methods or techniques that provide equal or greater accessibility
than subpart H would require. For example, if a public entity wanted
to conform its web content or mobile app to a future web content and
mobile app accessibility standard that expands accessibility
requirements beyond WCAG 2.1 Level AA, this provision makes clear
that the public entity would be in compliance with subpart H. Public
entities could also choose to comply with subpart H by conforming
their web content to WCAG 2.2 Level AA \195\ because WCAG 2.2 Level
AA provides substantially equivalent or greater accessibility and
usability to WCAG 2.1 Level AA; in particular, WCAG 2.2 Level AA
includes additional success criteria not found in WCAG 2.1 Level AA
and every success criterion in WCAG 2.1 Level AA, with the exception
of one success criterion that is obsolete.\196\ Similarly, a public
entity could comply with subpart H by conforming its web content and
mobile apps to WCAG 2.1 Level AAA,\197\ which is the same version of
WCAG and includes all the WCAG 2.1 Level AA requirements, but
includes additional requirements not found in WCAG 2.1 Level AA for
even greater accessibility. For example, WCAG 2.1 Level AAA includes
Success Criterion 2.4.10 \198\ for section headings used to organize
content and Success Criterion 3.1.4 \199\ that includes a mechanism
for identifying the expanded form or meaning of abbreviations, among
others. The Department believes that this provision offers needed
flexibility for entities to provide usability and accessibility that
meet or exceed what subpart H of this part would require as
technology continues to develop. The responsibility for
demonstrating equivalent facilitation rests with the public entity.
Subpart H adopts the approach as proposed in the NPRM,\200\ but the
Department edited the regulatory text to fix a grammatical error by
adding a comma in the original sentence in the provision.
---------------------------------------------------------------------------
\194\ See 28 CFR part 36, appendix D, at 1000 (2022) (1991 ADA
Standards); 36 CFR part 1191, appendix B, at 329 (2022) (2010 ADA
Standards).
\195\ W3C, WCAG 2 Overview, https://www.w3.org/WAI/standards-guidelines/wcag/ [https://perma.cc/RQS2-P7JC] (Oct. 5, 2023).
\196\ W3C, What's New in WCAG 2.2 Draft, https://www.w3.org/WAI/standards-guidelines/wcag/new-in-22/ [https://perma.cc/GDM3-A6SE]
(Oct. 5, 2023).
\197\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Sec. 5.2 Conformance Requirements (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs [https://perma.cc/XV2E-ESM8].
\198\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Success Criterion 2.4.10 Section Headings (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs:~:text=Success%20Criterion%202.4.10,Criterion%204.1.2 [https://perma.cc/9BNS-8LWK].
\199\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Success Criterion 3.1.4 Abbreviations (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs:~:text=Success%20Criterion%203.1.4,abbreviations%20is%20availabl
e [https://perma.cc/ZK6C-9RHD].
\200\ 88 FR 52020.
---------------------------------------------------------------------------
The Department received a comment arguing that providing phone
support in lieu of a WCAG 2.1-compliant website should constitute
equivalent facilitation. As discussed in the section entitled
``History of the Department's Title II Web-Related Interpretation
and Guidance,'' the Department no longer believes telephone lines
can realistically provide equal access to people with disabilities.
Websites--and often mobile apps--allow members of the public to get
information or request a service within just a few minutes, and
often to do so independently. Getting the same information or
requesting the same service using a staffed telephone line takes
more steps and may result in wait times or difficulty getting the
information.
For example, State and local government entities' web content
and mobile apps may allow members of the public to quickly review
large quantities of information, like information about how to
register for government services, information on pending government
ordinances, or instructions about how to apply for a government
benefit. Members of the public can then use government web content
or mobile apps to promptly act on that information by, for example,
registering for programs or activities, submitting comments on
pending government ordinances, or filling out an application for a
government benefit. A member of the public could not realistically
accomplish these tasks efficiently over the phone.
Additionally, a person with a disability who cannot use an
inaccessible online tax form might have to call to request
assistance with filling out either online or mailed forms, which
could involve significant delay, added costs, and could require
providing private information such as banking details or Social
Security numbers over the phone without the benefit of certain
security features available for online transactions. A staffed
telephone line also may not be accessible to someone who is
deafblind, or who may have combinations of other disabilities, such
as a coordination issue impacting typing, and an audio processing
disability impacting comprehension over the phone. However, such
individuals may be able to use web content and mobile apps that are
accessible.
Finally, calling a staffed telephone line lacks the privacy of
looking up information on a public entity's web content or mobile
app. A caller needing public safety resources, for example, might be
unable to access a private location to ask for help on the phone,
whereas accessible web content or mobile apps would allow users to
privately locate resources. For these reasons, the Department does
not now believe that a staffed telephone line--even if it is offered
24/7--provides equal opportunity in the way that accessible web
content or mobile apps would.
Section 35.204 Duties
Section 35.204 sets forth the general limitations on the
obligations under subpart H of this part. Section 35.204 provides
that in meeting the accessibility requirements set out in subpart H,
a public entity is not required to take any action that would result
in a fundamental alteration in the nature of a service, program, or
activity, or in undue financial and administrative burdens. These
limitations on a public entity's duty to comply with the regulatory
provisions mirror the fundamental alteration and undue burdens
compliance limitations currently provided in the title II regulation
in Sec. Sec. 35.150(a)(3) (existing facilities) and 35.164
(effective communication), and the fundamental alteration compliance
limitation currently provided in the title II regulation in Sec.
35.130(b)(7) (reasonable modifications in policies, practices, or
procedures). These limitations are thus familiar to public entities.
The word ``full'' was removed in Sec. 35.204 so that the text
reads ``compliance'' rather than ``full compliance.'' The Department
made this change because Sec. 35.200(b)(1) and (2) clarifies that
compliance with subpart H of this part includes complying with the
success criteria and conformance requirements under Level A and
Level AA specified in WCAG 2.1. This minor revision does not affect
the meaning of Sec. 35.204, but rather removes an extraneous word
to avoid redundancy and confusion.
In determining whether an action would result in undue financial
and administrative burdens, all of a public entity's resources
available for use in the funding and operation of the service,
program, or activity should be considered. The burden of proving
that compliance with the requirements of Sec. 35.200 would
fundamentally alter the nature of a service, program, or activity,
or would result in undue financial and administrative burdens, rests
with the public entity. As the Department has consistently
maintained since promulgation of the title II regulation
[[Page 31385]]
in 1991, the decision that compliance would result in a fundamental
alteration or impose undue burdens must be made by the head of the
public entity or their designee, and must be memorialized with a
written statement of the reasons for reaching that conclusion.\201\
The Department has recognized the difficulty public entities have in
identifying the official responsible for this determination, given
the variety of organizational structures within public entities and
their components.\202\ The Department has made clear that the
determination must be made by a high level official, no lower than a
Department head, having budgetary authority and responsibility for
making spending decisions.\203\
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\201\ Section 35.150(a)(3) and 35.164.
\202\ 28 CFR part 35, appendix B, at 708 (2022).
\203\ Id.
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The Department believes, in general, it would not constitute a
fundamental alteration of a public entity's services, programs, or
activities to modify web content or mobile apps to make them
accessible within the meaning of subpart H of this part. However,
this is a fact-specific inquiry, and the Department provides some
examples later in this section of when a public entity may be able
to claim a fundamental alteration. Moreover, like the fundamental
alteration or undue burdens limitations in the title II regulation
referenced in the preceding paragraphs, Sec. 35.204 does not
relieve a public entity of all obligations to individuals with
disabilities. Although a public entity under this part is not
required to take actions that would result in a fundamental
alteration in the nature of a service, program, or activity or in
undue financial and administrative burdens, it nevertheless must
comply with the requirements of subpart H of this part to the extent
that compliance does not result in a fundamental alteration or undue
financial and administrative burdens. For instance, a public entity
might determine that complying with all of the success criteria
under WCAG 2.1 Level AA would result in a fundamental alteration or
undue financial and administrative burdens. However, the public
entity must then determine whether it can take any other action that
would not result in such an alteration or such burdens, but would
nevertheless ensure that individuals with disabilities receive the
benefits or services provided by the public entity to the maximum
extent possible. To the extent that the public entity can, it must
do so. This may include the public entity's bringing its web content
into conformance to some of the WCAG 2.1 Level A or Level AA success
criteria.
It is the Department's view that most entities that choose to
assert a claim that complying with all of the requirements under
WCAG 2.1 Level AA would result in undue financial and administrative
burdens will be able to attain at least partial compliance in many
circumstances. The Department believes that there are many steps a
public entity can take to conform to WCAG 2.1 Level AA that should
not result in undue financial and administrative burdens, depending
on the particular circumstances.
Complying with the web and mobile app accessibility requirements
set forth in subpart H means that a public entity is not required by
title II of the ADA to make any further modifications to the web
content or content in mobile apps that it makes available to the
public. However, it is important to note that compliance with
subpart H of this part will not relieve title II entities of their
distinct employment-related obligations under title I of the ADA.
The Department realizes that the regulations in subpart H are not
going to meet the needs of and provide access to every individual
with a disability, but believes that setting a consistent and
enforceable web accessibility standard that meets the needs of a
majority of individuals with disabilities will provide greater
predictability for public entities, as well as added assurance of
accessibility for individuals with disabilities. This approach is
consistent with the approach the Department has taken in the context
of physical accessibility under title II. In that context, a public
entity is not required to exceed the applicable design requirements
of the ADA Standards even if certain wheelchairs or other power-
driven mobility devices require a greater degree of accessibility
than the ADA Standards provide.\204\ The entity may still be
required, however, to make other modifications to how it provides a
program, service, or activity, where necessary to provide access for
a specific individual. For example, where an individual with a
disability cannot physically access a program provided in a building
that complies with the ADA Standards, the public entity does not
need to make physical alterations to the building but may need to
take other steps to ensure that the individual has an equal
opportunity to participate in and benefit from that program.
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\204\ See 28 CFR part 35, appendix A, at 626 (2022).
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Similarly, just because an entity is in compliance with the web
content or mobile app accessibility standard in subpart H of this
part does not mean it has met all of its obligations under the ADA
or other applicable laws--it means only that it is not required to
make further changes to the web content or content in mobile apps
that it makes available. If an individual with a disability, on the
basis of disability, cannot access or does not have equal access to
a service, program, or activity through a public entity's web
content or mobile app that conforms to WCAG 2.1 Level AA, the public
entity is still obligated under Sec. 35.200(a) to provide the
individual an alternative method of access to that service, program,
or activity unless the public entity can demonstrate that
alternative methods of access would result in a fundamental
alteration in the nature of a service, program, or activity or in
undue financial and administrative burdens.\205\ The entity also
must still satisfy its general obligations to provide effective
communication, reasonable modifications, and an equal opportunity to
participate in or benefit from the entity's services, programs, or
activities.\206\
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\205\ See, e.g., Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and
35.160.
\206\ See id.
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The public entity must determine on a case-by-case basis how
best to meet the needs of those individuals who cannot access a
service, program, or activity that the public entity provides
through web content or mobile apps that comply with all of the
requirements under WCAG 2.1 Level AA. A public entity should refer
to Sec. 35.130(b)(1)(ii) to determine its obligations to provide
individuals with disabilities an equal opportunity to participate in
and enjoy the benefits of the public entity's services, programs, or
activities. A public entity should refer to Sec. 35.160 (effective
communication) to determine its obligations to provide individuals
with disabilities with the appropriate auxiliary aids and services
necessary to afford them an equal opportunity to participate in, and
enjoy the benefits of, the public entity's services, programs, or
activities. A public entity should refer to Sec. 35.130(b)(7)
(reasonable modifications) to determine its obligations to provide
reasonable modifications in policies, practices, or procedures to
avoid discrimination on the basis of disability. It is helpful to
provide individuals with disabilities with information about how to
obtain the modifications or auxiliary aids and services they may
need. For example, while not required in subpart H of this part, a
public entity is encouraged to provide an email address, accessible
link, accessible web page, or other accessible means of contacting
the public entity to provide information about issues individuals
with disabilities may encounter accessing web content or mobile apps
or to request assistance.\207\ Providing this information will help
public entities ensure that they are satisfying their obligations to
provide equal access, effective communication, and reasonable
modifications.
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\207\ See W3C, Developing an Accessibility Statement, https://www.w3.org/WAI/planning/statements/ [https://perma.cc/85WU-JTJ6]
(Mar. 11, 2021).
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The Department also clarifies that a public entity's requirement
to comply with existing ADA obligations remains true for content
that fits under one of the exceptions under Sec. 35.201. For
example, in the appropriate circumstances, an entity may be
obligated to add captions to a video that falls within the archived
content exception and provide the captioned video file to the
individual with a disability who needs access to the video, or edit
an individualized password-protected PDF to be usable with a screen
reader and provide it via a secure method to the individual with a
disability. Of course, an entity may also choose to further modify
the web content or content in mobile apps it makes available to make
that content more accessible or usable than subpart H of this part
requires. In the context of the preceding examples, for instance,
the Department believes it will often be most economical and logical
for an entity to post the captioned video, once modified, as part of
web content made available to the public, or to modify the
individualized PDF template so that it is used for all members of
the public going forward.
The Department received comments indicating that the fundamental
alteration or undue burdens limitations as discussed in
[[Page 31386]]
the ``Duties'' section of the NPRM \208\ are appropriate and align
with the framework of the ADA. The Department also received comments
expressing concern that there are no objective standards to help
public entities understand when the fundamental alteration and undue
burdens limitations will apply. Accordingly, some commenters asked
the Department to make clearer when public entities can and cannot
raise these limitations. Some of these commenters said that the lack
of clarity about these limitations could result in higher litigation
costs or frivolous lawsuits. The Department acknowledges these
concerns and notes that fundamental alteration and undue burdens are
longstanding limitations under the ADA,\209\ and therefore the
public should already be familiar with these limitations in other
contexts. The Department has provided guidance that addresses the
fundamental alteration and undue burdens limitations and will
consider providing additional guidance in the future.\210\
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\208\ 88 FR 51978-51980.
\209\ See Sec. Sec. 35.130(b)(7)(i), 35.150(a)(3), and 35.164.
These regulatory provisions were also in the Department's 1991
regulations at 28 CFR 35.130(b)(7), 35.150(a)(3), and 35.164,
respectively.
\210\ See, e.g., U.S. Dep't of Just., ADA Update: A Primer for
State and Local Governments, https://www.ada.gov/resources/title-ii-primer/ [https://perma.cc/ZV66-EFWU] (Feb. 28, 2020).
---------------------------------------------------------------------------
The Department received some comments suggesting that the
Department should state whether certain examples amount to a
fundamental alteration or undue burdens or amend the regulation to
address the examples. For example, one commenter indicated that some
digital content cannot be made accessible and therefore technical
infeasibility should be considered an undue burden. Another
commenter asserted that it may be an undue burden to require large
documents that are 300 pages or more to be accessible under the
final regulations; therefore, the final regulations should include a
rebuttable presumption that public entities do not have to make
these larger documents accessible. In addition, one commenter said
they believe that testing the accessibility of web content and
mobile apps imposes an undue burden. However, another commenter
opined that improving web code is unlikely to pose a fundamental
alteration in most cases.
Whether the undue burdens limitation applies is a fact-specific
assessment that involves considering a variety of factors. For
example, some small towns have minimal operating budgets measured in
the thousands or tens of thousands of dollars. If such a town had an
archive section of its website with a large volume of material
gathered by the town's historical society (such as old photographs
and handwritten journal entries from town elders), the town would
have an obligation under the existing title II regulation to ensure
that its services, programs, and activities offered using web
content and mobile apps are accessible to individuals with
disabilities. However, it might be an undue burden for the town to
make all those materials fully accessible in a short period of time
in response to a request by an individual with a disability.\211\
Whether the undue burdens limitation applies, however, would depend,
among other things, on how large the town's operating budget is and
how much it would cost to make the materials in question accessible.
Whether the limitation applies will also vary over time. Increases
in town budget, or changes in technology that reduce the cost of
making the historical materials accessible, may make the limitation
inapplicable. Lastly, even where it would impose an undue burden on
the town to make its historical materials accessible within a
certain time frame, the town would still need to take any other
action that would not result in such a burden but would nevertheless
ensure that individuals with disabilities receive the benefits or
services provided by the town to the maximum extent possible.
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\211\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160.
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Application of the fundamental alteration limitation is
similarly fact specific. For example, a county library might hold an
art contest in which elementary school students submit alternative
covers for their favorite books and library goers view and vote on
the submissions on the library website. It would likely be a
fundamental alteration to require the library to modify each piece
of artwork so that any text drawn on the alternative covers, such as
the title of the book or the author's name, satisfies the color
contrast requirements in the technical standard. Even so, the
library would still be required to take any other action that would
not result in such an alteration but would nevertheless ensure that
individuals with disabilities could participate in the contest to
the maximum extent possible.
Because each assessment of whether the fundamental alteration or
undue burdens limitations applies will vary depending on the entity,
the time of the assessment, and various other facts and
circumstances, the Department declines to adopt any rebuttable
presumptions about when the fundamental alteration or undue burdens
limitations would apply.
One commenter proposed that the final regulations should specify
factors that should be considered with respect to the undue burdens
limitation, such as the number of website requirements that public
entities must comply with and the budget, staff, and other resources
needed to achieve compliance with these requirements. The Department
declines to make changes to the regulatory text because the
Department does not believe listing specific factors would be
appropriate, particularly given that these limitations apply in
other contexts in title II. Also, as noted earlier, the Department
believes that generally, it would not constitute a fundamental
alteration of a public entity's services, programs, or activities to
modify web content or mobile apps to make them accessible in
compliance with subpart H of this part.
The Department received a comment suggesting that the regulatory
text should require a public entity claiming the undue burdens
limitation to identify the inaccessible content at issue, set a
reliable point of contact for people with disabilities seeking to
access the inaccessible content, and develop a plan and timeline for
remediating the inaccessible content. The Department declines to
take this suggested approach because it would be a departure from
how the limitation generally applies in other contexts covered by
title II of the ADA.\212\ In these other contexts, if an action
would result in a fundamental alteration or undue burdens, a public
entity must still take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure
that individuals with disabilities receive the benefits or services
provided by the public entity to the maximum extent possible.\213\
The Department believes it is important to apply these longstanding
limitations in the same way to web content and mobile apps to ensure
clarity for public entities and consistent enforcement of the ADA.
In addition, implementing the commenter's suggested approach would
create additional costs for public entities. The Department
nevertheless encourages public entities to engage in practices that
would improve accessibility and ensure transparency when public
entities seek to invoke the fundamental alteration or undue burdens
limitations. For example, a public entity can provide an
accessibility statement that informs the public how to bring web
content or mobile app accessibility problems to the public entity's
attention, and it can also develop and implement a procedure for
reviewing and addressing any such issues raised.
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\212\ See Sec. Sec. 35.150(a)(3) and 35.164.
\213\ See id.
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Some commenters raised concerns about the requirement in Sec.
35.204 that the decision that compliance with subpart H of this part
would result in a fundamental alteration or in undue financial or
administrative burdens must be made by the head of a public entity
or their designee. These commenters wanted more clarity about who is
the head of a public entity. They also expressed concern that this
requirement may be onerous for public entities. The Department notes
in response to these commenters that this approach is consistent
with the existing title II framework in Sec. Sec. 35.150(a)(3)
(service, program, or activity accessibility) and 35.164 (effective
communication). With respect to the commenters' concern about who is
the head of a public entity or their designee, the Department
recognizes the difficulty of identifying the official responsible
for this determination given the variety of organizational forms of
public entities and their components. The Department has made clear
that ``the determination must be made by a high level official, no
lower than a Department head, having budgetary authority and
responsibility for making spending decisions.'' \214\ The Department
reiterates that this is an existing concept in title II of the ADA,
so public entities should be familiar with this requirement. The
appropriate relevant official may vary depending on the public
entity.
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\214\ 28 CFR part 35, appendix B, at 708 (2022).
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Section 35.205 Effect of Noncompliance That Has a Minimal Impact on
Access
Section 35.205 sets forth when a public entity will be deemed to
have complied with
[[Page 31387]]
Sec. 35.200 despite limited nonconformance to the technical
standard. This provision adopts one of the possible approaches to
compliance discussed in the NPRM.\215\ As discussed in this section,
public comments indicated that the final rule needed to account for
the increased risk of instances of nonconformance to the technical
standard, due to the unique and particular challenges to achieving
perfect, uninterrupted conformance in the digital space. The
Department believes that Sec. 35.205 meets this need, ensuring the
full and equal access to which individuals with disabilities are
entitled while allowing some flexibility for public entities if
nonconformance to WCAG 2.1 Level AA is so minimal as to not affect
use of the public entity's web content or mobile app.
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\215\ 88 FR 51983.
---------------------------------------------------------------------------
Discussion of Regulatory Text
Section 35.205 describes a particular, limited circumstance in
which a public entity will be deemed to have met the requirements of
Sec. 35.200 even though the public entity's web content or mobile
app does not perfectly conform to the technical standard set forth
in Sec. 35.200(b). Section 35.205 will apply if the entity can
demonstrate that, although it was technically out of conformance to
WCAG 2.1 Level AA (i.e., fails to exactly satisfy a success
criterion or conformance requirement), the nonconformance has a
minimal impact on access for individuals with disabilities, as
defined in the regulatory text. If a public entity can make this
showing, it will be deemed to have met its obligations under Sec.
35.200 despite its nonconformance to WCAG 2.1 Level AA.
Section 35.205 does not alter a public entity's general
obligations under subpart H of this part nor is it intended as a
blanket justification for a public entity to avoid conforming with
WCAG 2.1 Level AA from the outset. Rather, Sec. 35.205 is intended
to apply in rare circumstances and will require a detailed analysis
of the specific facts surrounding the impact of each alleged
instance of nonconformance. The Department does not expect or intend
that Sec. 35.205 will excuse most nonconformance to the technical
standard. Under Sec. 35.200(b), a public entity must typically
ensure that the web content and mobile apps it provides or makes
available, directly or through contractual, licensing, or other
arrangements, comply with Level A and Level AA success criteria and
conformance requirements specified in WCAG 2.1. This remains
generally true. However, Sec. 35.205 allows for some minor
deviations from WCAG 2.1 Level AA if specific conditions are met.
This will provide a public entity that discovers that it is out of
compliance with the requirements of Sec. 35.200(b) with another
means to avoid the potential liability that could result. Public
entities that maintain conformance to WCAG 2.1 Level AA will not
have to rely on Sec. 35.205 to be deemed compliant with Sec.
35.200, and full conformance to WCAG 2.1 Level AA is the only
definitive way to guarantee that outcome. However, if a public
entity falls out of conformance in a minimal way or such
nonconformance is alleged, a public entity may be able to use Sec.
35.205 to demonstrate that it has satisfied its legal obligations.
Section 35.205 also does not alter existing ADA enforcement
mechanisms. Individuals can file complaints, and agencies can
conduct investigations and compliance reviews, related to subpart H
of this part the same way they would for any other requirement under
title II.\216\
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\216\ See Sec. Sec. 35.170 through 35.190.
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As the text of the provision indicates, the burden of
demonstrating applicability of Sec. 35.205 is on the public entity.
The provision will only apply in the limited circumstance in which
the public entity can demonstrate that all of the criteria described
in Sec. 35.205 are satisfied. This section requires the public
entity to show that its nonconformance to WCAG 2.1 Level AA has such
a minimal impact on access that it would not affect the ability of
individuals with disabilities to use the public entity's web content
or mobile app as defined in the remainder of the section. If the
nonconformance has affected an individual in the ways outlined in
Sec. 35.205 (further described in the subsequent paragraphs), the
public entity will not be able to rely on this provision. Further,
as ``demonstrate'' indicates, the public entity must provide
evidence that all of the criteria described in Sec. 35.205 are
satisfied in order to substantiate its reliance on this provision.
While Sec. 35.205 does not require a particular type of evidence, a
public entity needs to show that, as the text states, its
nonconformance ``would not affect'' the experience of individuals
with disabilities as outlined in subsequent paragraphs. Therefore,
it would not be sufficient for a public entity to show only that it
has not received any complaints regarding the nonconformance; nor
would it likely be enough if the public entity only pointed to a few
particular individuals with disabilities who were unaffected by the
nonconformance. The public entity must show that the nonconformance
is of a nature that would not affect people whose disabilities are
pertinent to the nonconformance at issue, just as the analysis under
other parts of the title II regulation depends on the barrier at
issue and the access needs of individuals with disabilities
pertinent to that barrier.\217\ For example, people with hearing or
auditory processing disabilities, among others, have disabilities
pertinent to captioning requirements.
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\217\ Cf., e.g., Sec. Sec. 35.130(b)(1)(iv) and (b)(8) and
35.160.
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With respect to the particular criteria that a public entity
must satisfy, Sec. 35.205 describes both what people with
disabilities must be able to use the public entity's web content or
mobile apps to do and the manner in which people with disabilities
must be able to do it. As to manner of use, Sec. 35.205 provides
that nonconformance to WCAG 2.1 Level AA must not affect the ability
of individuals with disabilities to use the public entity's web
content or mobile app in a manner that provides substantially
equivalent timeliness, privacy, independence, and ease of use
compared to individuals without disabilities. Timeliness, privacy,
and independence are underscored throughout the ADA framework as key
components of ensuring equal opportunity for individuals with
disabilities to participate in or benefit from a public entity's
services, programs, and activities, as explained further later in
the discussion of this provision, and ``ease of use'' is intended to
broadly encompass other aspects of a user's experience with web
content or mobile apps. To successfully rely on Sec. 35.205, it
would not be sufficient for a public entity to demonstrate merely
that its nonconformance would not completely block people with
disabilities from using web content or a mobile app as described in
Sec. 35.205(a) through (d). That is, the term ``would not affect''
should not be read in isolation from the rest of Sec. 35.205 to
suggest that a public entity only needs to show that a particular
objective can be achieved. Rather, a public entity must also
demonstrate that, even though the web content or mobile app does not
conform to the technical standard, the user experience for
individuals with disabilities is substantially equivalent to the
experience of individuals without disabilities.
For example, if a State's online renewal form does not conform
to WCAG 2.1 Level AA, a person with a manual dexterity disability
may need to spend significantly more time to renew their
professional license online than someone without a disability. This
person might also need to seek assistance from someone who does not
have a disability, provide personal information to someone else, or
endure a much more cumbersome and frustrating process than a user
without a disability. Even if this person with a disability was
ultimately able to renew their license online, Sec. 35.205 would
not apply because, under these circumstances, their ability to use
the web content in a manner that provides substantially equivalent
timeliness, privacy, independence, and ease of use would be
affected. Analysis under this provision is likely to be a fact-
intensive analysis. Of course, a public entity is not responsible
for every factor that might make a task more time-consuming or
difficult for a person with a disability. However, a public entity
is responsible for the impact of its nonconformance to the technical
standard set forth in subpart H of this part. The public entity must
show that its nonconformance would not affect the ability of
individuals with pertinent disabilities to use the web content or
mobile app in a manner that provides substantially equivalent
timeliness, privacy, independence, and ease of use.
Paragraphs (a) through (d) of Sec. 35.205 describe what people
with disabilities must be able to use the public entity's web
content or mobile apps to do in a manner that is substantially
equivalent as to timeliness, privacy, independence, and ease of use.
First, under Sec. 35.205(a), individuals with disabilities must be
able to access the same information as individuals without
disabilities. This means that people with disabilities can access
all the same information using the web content or mobile app that
users without disabilities are able to access. For example, Sec.
35.205(a) would not be
[[Page 31388]]
satisfied if certain web content could not be accessed using a
keyboard because the content was coded in a way that caused the
keyboard to skip over some content. In this example, an individual
who relies on a screen reader would not be able to access the same
information as an individual without a disability because all of the
information could not be selected with their keyboard so that it
would be read aloud by their screen reader. However, Sec. 35.205(a)
might be satisfied if the color contrast ratio for some sections of
text is 4.45:1 instead of 4.5:1 as required by WCAG 2.1 Success
Criterion 1.4.3.\218\ Similarly, this provision might apply if the
spacing between words is only 0.15 times the font size instead of
0.16 times as required by WCAG 2.1 Success Criterion 1.4.12.\219\
Such slight deviations from the specified requirements are unlikely
to affect the ability of, for example, most people with vision
disabilities to access information that they would be able to access
if the content fully conformed with the technical standard. However,
the entity must always demonstrate that this element is met with
respect to the specific facts of the nonconformance at issue.
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\218\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Success Criterion 1.4.3 Contrast (Minimum) (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#contrast-minimum [https://perma.cc/4XS3-AX7W].
\219\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Success Criterion 1.4.12 Text Spacing (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#text-spacing [https://perma.cc/B4A5-843F].
---------------------------------------------------------------------------
Second, Sec. 35.205(b) states that individuals with
disabilities must be able to engage in the same interactions as
individuals without disabilities. This means that people with
disabilities can interact with the web content or mobile app in all
of the same ways that people without disabilities can. For example,
Sec. 35.205(b) would not be satisfied if people with disabilities
could not interact with all of the different components of the web
content or mobile app, such as chat functionality, messaging,
calculators, calendars, and search functions. However, Sec.
35.205(b) might be satisfied if the time limit for an interaction,
such as a chat response, expires at exactly 20 hours, even though
Success Criterion 2.2.1,\220\ which generally requires certain
safeguards to prevent time limits from expiring, has an exception
that only applies if the time limit is longer than 20 hours. People
with certain types of disabilities, such as cognitive disabilities,
may need more time than people without disabilities to engage in
interactions. A slight deviation in timing, especially when the time
limit is long and the intended interaction is brief, is unlikely to
affect the ability of people with these types of disabilities to
engage in interactions. Still, the public entity must always
demonstrate that this element is met with respect to the specific
facts of the nonconformance at issue.
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\220\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Success Criterion 2.2.1 Timing Adjustable (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#timing-adjustable [https://perma.cc/V3XZ-KJDG].
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Third, pursuant to Sec. 35.205(c), individuals with
disabilities must be able to conduct the same transactions as
individuals without disabilities. This means that people with
disabilities can complete all of the same transactions on the web
content or mobile app that people without disabilities can. For
example, Sec. 35.205(c) would not be satisfied if people with
disabilities could not submit a form or process their payment.
However, Sec. 35.205(c) would likely be satisfied if web content
does not conform to Success Criterion 4.1.1 about parsing. This
Success Criterion requires that information is coded properly so
that technology like browsers and screen readers can accurately
interpret the content and, for instance, deliver that content to a
user correctly so that they can complete a transaction, or avoid
crashing in the middle of the transaction.\221\ However, according
to W3C, this Success Criterion is no longer needed to ensure
accessibility because of improvements in browsers and assistive
technology.\222\ Thus, although conformance to this Success
Criterion is required by WCAG 2.1 Level AA, a failure to conform to
this Success Criterion is unlikely to affect the ability of people
with disabilities to conduct transactions. However, the entity must
always demonstrate that this element is met with respect to the
specific facts of the nonconformance at issue.
---------------------------------------------------------------------------
\221\ W3C, Understanding SC 4.1.1: Parsing (Level A), https://www.w3.org/WAI/WCAG21/Understanding/parsing.html [https://perma.cc/5Z8Q-GW5E] (June 20, 2023).
\222\ W3C, WCAG 2 FAQ, How and why is success criteria 4.1.1
Parsing obsolete?, https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/7Q9H-JVSZ] (Oct. 5, 2023).
---------------------------------------------------------------------------
Fourth, Sec. 35.205(d) requires that individuals with
disabilities must be able to otherwise participate in or benefit
from the same services, programs, and activities as individuals
without disabilities. Section 35.205(d) is intended to address
anything else within the scope of title II (i.e., any service,
program, or activity that cannot fairly be characterized as
accessing information, engaging in an interaction, or conducting a
transaction) for which someone who does not have a disability could
use the public entity's web content or mobile app. Section 35.205(d)
should be construed broadly to ensure that the ability of
individuals with disabilities to use any part of the public entity's
web content or mobile app that individuals without disabilities are
able to use is not affected by nonconformance to the technical
standard.
Explanation of Changes From Language Discussed in the NPRM
The regulatory language codified in Sec. 35.205 is very similar
to language discussed in the NPRM's preamble.\223\ However, the
Department believes it is helpful to explain differences between
that discussion in the NPRM and the final rule. The Department has
only made three substantive changes to the NPRM's relevant language.
---------------------------------------------------------------------------
\223\ 88 FR 51983.
---------------------------------------------------------------------------
First, though the NPRM discussed excusing noncompliance that
``does not prevent'' equal access, Sec. 35.205 excuses
noncompliance that ``would not affect'' such access. The Department
was concerned that the use of ``does not'' could have been
incorrectly read to require a showing that a specific individual did
not have substantially equivalent access to the web content or
mobile app. In changing the language to ``would not,'' the
Department clarifies that the threshold requirements for bringing a
challenge to compliance under subpart H of this part are the same as
under any other provision of the ADA. Except as otherwise required
by existing law, a rebuttal of a public entity's invocation of this
provision would not need to show that a specific individual did not
have substantially equivalent access to the web content or mobile
app. Rather, the issue would be whether the nonconformance is the
type of barrier that would affect the ability of individuals with
pertinent disabilities to access the web content or mobile app in a
substantially equivalent manner. The same principles would apply to
informal dispute resolution or agency investigations resolved
outside of court, for example. Certainly, the revised standard would
encompass a barrier that actually does affect a specific
individual's access, so this revision does not narrow the provision.
Second, the Department originally proposed considering whether
nonconformance ``prevent[s] a person with a disability'' from using
the web content or mobile app, but Sec. 35.205 instead considers
whether nonconformance would ``affect the ability of individuals
with disabilities'' to use the web content or mobile app. This
revision is intended to clarify what a public entity seeking to
invoke this provision needs to demonstrate. The Department explained
in the NPRM that the purpose of this approach was to provide equal
access to people with disabilities, and limit violations to those
that affect access.\224\ But even when not entirely prevented from
using web content or mobile app, an individual with disabilities can
still be denied equal access by impediments falling short of that
standard. The language now used in this provision more accurately
reflects this reality and achieves the objective proposed in the
NPRM. As explained earlier in the discussion of Sec. 35.205, under
the language in this provision, it would not be sufficient for a
public entity to show that nonconformance would not completely block
people with disabilities from using the public entity's web content
or a mobile app as described in Sec. 35.205(a) through (d). In
other words, someone would not need to be entirely prevented from
using the web content or mobile app before an entity could be
considered out of compliance. Instead, the effect of the
nonconformance must be considered. This does not mean that any
effect on usability, however slight, is sufficient to prove a
violation. Only nonconformance that would affect the ability of
individuals with disabilities to do the activities in Sec.
35.205(a) through (d) in a way that provides substantially
equivalent timeliness, privacy, independence, and ease of use would
prevent a public entity from relying on this provision.
---------------------------------------------------------------------------
\224\ Id.
---------------------------------------------------------------------------
Third, the language proposed in the NPRM considered whether a
person with a disability would have substantially
[[Page 31389]]
equivalent ``ease of use.'' The Department believed that timeliness,
privacy, and independence were all components that affected whether
ease of use was substantially equivalent. Because several commenters
proposed explicitly specifying these factors in addition to ``ease
of use,'' the Department is persuaded that these factors warrant
separate inclusion and emphasis as aspects of user experience that
must be substantially equivalent. This specificity ensures clarity
for public entities, individuals with disabilities, Federal
agencies, and courts about how to analyze an entity's invocation of
this provision.
Therefore, the Department has added additional language to
clarify that timeliness, privacy, and independence are all important
concepts to consider when evaluating whether this provision applies.
If a person with a disability would need to take significantly more
time to successfully navigate web content or a mobile app that does
not conform to the technical standard because of the content or
app's nonconformance, that person is not being provided with a
substantially equivalent experience to that of people without
disabilities. Requiring a person with a disability to spend
substantially more time to do something is placing an additional
burden on them that is not imposed on others. Privacy and
independence are also crucial components that can affect whether a
person with a disability would be prevented from having a
substantially equivalent experience. Adding this language to Sec.
35.205 ensures consistency with the effective communication
provision of the ADA.\225\ The Department has included timeliness,
privacy, and independence in this provision for clarity and to avoid
unintentionally narrowing what should be a fact-intensive analysis.
However, ``ease of use'' may also encompass other aspects of a
user's experience that are not expressly specified in the regulatory
text, such as safety risks incurred by people with disabilities as a
result of nonconformance.\226\ This language should be construed
broadly to allow for consideration of other ways in which
nonconformance would make the experience of users with disabilities
more difficult or burdensome than the experience of users without
disabilities in specific scenarios.
---------------------------------------------------------------------------
\225\ Section 35.160(b)(2).
\226\ See, e.g., W3C, Web Content Accessibility Guidelines
(WCAG) 2.1, Success Criterion 2.3.1. Three Flashes or Below
Threshold (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#three-flashes-or-below-threshold [https://perma.cc/A7P9-WCQY] (addressing aspects of content design that could trigger
seizures or other physical reactions).
---------------------------------------------------------------------------
Justification for This Provision
After carefully considering the various public comments
received, the Department believes that a tailored approach is needed
for measuring compliance with a technical standard in the digital
space. The Department also believes that the compliance framework
adopted in Sec. 35.205 is preferable to any available alternatives
because it strikes the most appropriate balance between equal access
for individuals with disabilities and feasibility for public
entities.
The Need To Tailor a Compliance Approach for the Digital Space
Most of the commenters who addressed the question of what
approach subpart H of this part should take to assessing compliance
provided information that supported the Department's decision to
tailor an approach for measuring compliance that is specific to the
digital space (i.e., an approach that differs from the approach that
the Department has taken for physical access). Only a few commenters
believed that the Department should require 100 percent conformance
to WCAG 2.1 Level AA, as is generally required for newly constructed
facilities.\227\ Commenters generally discussed two reasons why a
different approach was appropriate: differences between the physical
and digital space and increased litigation risk.
---------------------------------------------------------------------------
\227\ Section 35.151(a) and (c).
---------------------------------------------------------------------------
First, many commenters, including commenters from State and
local government entities and trade groups representing public
accommodations, emphasized how the built environment differs from
the digital environment. These commenters agreed with the
Department's suggestion in the NPRM that the dynamic and
interconnected nature of web content and mobile apps could present
unique challenges for compliance.\228\
---------------------------------------------------------------------------
\228\ 88 FR 51981.
---------------------------------------------------------------------------
Digital content changes much more frequently than buildings do.
Every modification to web content or a mobile app could lead to some
risk of falling out of perfect conformance to WCAG 2.1 Level AA.
Public entities will need to address this risk much more frequently
under subpart H of this part than they do under the ADA's physical
access requirements, because web content and mobile apps are updated
much more often than buildings are. By their very nature, web
content and mobile apps can easily be updated often, while most
buildings are designed to last for years, if not decades, without
extensive updates.
As such, State and local government entities trying to comply
with their obligations under subpart H of this part will need to
evaluate their compliance more frequently than they evaluate the
accessibility of their buildings. But regular consideration of how
any change that they make to their web content or mobile app will
affect conformance to WCAG 2.1 Level AA and the resulting iterative
updates may still allow minor nonconformances to escape notice.
Given these realities attending web content and mobile apps, the
Department believes that it is likely to be more difficult for State
and local government entities to maintain perfect conformance to the
technical standard set forth in subpart H than it is to comply with
the ADA Standards. Commenters agreed that maintaining perfect
conformance to the technical standard would be difficult.
Web content and content in mobile apps are also more likely to
be interconnected, such that updates to some content may affect the
conformance of other content in unexpected ways, including in ways
that may lead to technical nonconformance without affecting the user
experience for individuals with disabilities. Thus, to maintain
perfect conformance, it would not necessarily be sufficient for
public entities to confirm the conformance of their new content;
they would also need to ensure that any updates do not affect the
conformance of existing content. The same kind of challenge is
unlikely to occur in physical spaces.
Second, many commenters raised concerns about the litigation
risk that requiring perfect conformance to WCAG 2.1 Level AA would
pose. Commenters feared being subjected to a flood of legal claims
based on any failure to conform to the technical standard, however
minor, and regardless of the impact--or lack thereof--the
nonconformance has on accessibility. Commenters agreed with the
Department's suggestion that due to the dynamic, complex, and
interconnected nature of web content and mobile apps, a public
entity's web content and mobile apps may be more likely to be out of
conformance to WCAG 2.1 Level AA than its buildings are to be out of
compliance with the ADA Standards, leading to increased legal risk.
Some commenters even stated that 100 percent conformance to WCAG 2.1
Level AA would be unattainable or impossible to maintain. Commenters
also agreed with the Department's understanding that the prevalence
of automated web accessibility testing could enable any individual
to find evidence of nonconformance to WCAG 2.1 Level AA even where
that individual has not experienced any impact on access and the
nonconformance would not affect others' access, with the result that
identifying instances of merely technical nonconformance to WCAG 2.1
Level AA is likely much easier than identifying merely technical
noncompliance with the ADA Standards.
Based on the comments it received, the Department believes that
if it does not implement a tailored approach to compliance under
subpart H of this part, the burden of litigation under subpart H
could become particularly challenging for public entities,
enforcement agencies, and the courts. Though many comments about
litigation risk came from public entities, commenters from some
disability advocacy organizations agreed that subpart H should not
encourage litigation about issues that do not affect a person with a
disability's ability to equally use and benefit from a website or
mobile app, and that liability should be limited. After considering
the information commenters provided, the Department is persuaded
that measuring compliance as strictly 100 percent conformance to
WCAG 2.1 Level AA would not be the most prudent approach, and that
an entity's compliance obligations can be limited under some narrow
circumstances without undermining the objective of ensuring equal
access to web content and mobile apps in subpart H.
Reasons for Adopting This Compliance Approach
The Department has carefully considered many different
approaches to defining when a State or local government entity has
met its obligations under subpart H of this part. Of all the
approaches considered--including those discussed in the NPRM as well
as those
[[Page 31390]]
proposed by commenters--the Department believes the compliance
approach set forth in Sec. 35.205 strikes the most appropriate
balance between providing equal access for people with disabilities
and ensuring feasibility for public entities, courts, and Federal
agencies. The Department believes that the approach set forth in
subpart H is preferable to all other approaches because it
emphasizes actual access, is consistent with existing legal
frameworks, and was supported by a wide range of commenters.
Primarily, the Department has selected this approach because it
appropriately focuses on the experience of individuals with
disabilities who are trying to use public entities' web content or
mobile apps. By looking at the effect of any nonconformance to the
technical standard, this approach will most successfully implement
the ADA's goals of ``equality of opportunity'' and ``full
participation.'' \229\ It will also be consistent with public
entities' existing regulatory obligations to provide individuals
with disabilities with an equal opportunity to participate in and
benefit from their services, obtain the same result, and gain the
same benefit.\230\ This approach ensures that nonconformance to the
technical standard can be addressed when it affects these core
promises of equal access.
---------------------------------------------------------------------------
\229\ 42 U.S.C. 12101(a)(7).
\230\ See Sec. 35.130(b)(1)(ii) and (iii).
---------------------------------------------------------------------------
The Department heard strong support from the public for ensuring
that people with disabilities have equal access to the same
services, programs, and activities as people without disabilities,
with equivalent timeliness, privacy, independence, and ease of use.
Similarly, many commenters from disability advocacy organizations
stated that the goal of subpart H of this part should be to provide
access to people with disabilities that is functionally equivalent
to the access experienced by people without disabilities. Other
disability advocates stressed that technical compliance should not
be prioritized over effective communication. Section 35.205 will
help to achieve these goals.
The Department believes that this approach will not have a
detrimental impact on the experience of people with disabilities who
are trying to use web content or mobile apps. By its own terms,
Sec. 35.205 would require a public entity to demonstrate that any
nonconformance would not affect the ability of individuals with
disabilities to use the public entity's web content or mobile app in
a manner that provides substantially equivalent timeliness, privacy,
independence, and ease of use. As discussed earlier in the analysis
of Sec. 35.205, it is likely that this will be a high hurdle to
clear. If nonconformance to the technical standard would affect
people with disabilities' ability to use the web content or mobile
app in this manner, this provision will not apply, and a public
entity will not have met its obligations under subpart H of this
part. As noted earlier in this discussion, full conformance to WCAG
2.1 Level AA is the only definitive way for a public entity to avoid
reliance on Sec. 35.205.
This provision would nonetheless provide public entities who
have failed to conform to WCAG 2.1 Level AA with a way to avoid the
prospect of liability for an error that is purely technical in
nature and would not affect accessibility in practice. This will
help to curtail the specter of potential liability for every minor
technical error, no matter how insignificant. However, Sec. 35.205
is intended to apply in rare circumstances and will require a
detailed analysis of the specific facts surrounding the impact of
each alleged instance of nonconformance. As noted earlier, the
Department does not expect or intend that Sec. 35.205 will excuse
most nonconformance to the technical standard.
The Department also believes this approach is preferable to the
other approaches considered because it is likely to be familiar to
people with disabilities and public entities, and this general
consistency with title II's regulatory framework (notwithstanding
some necessary differences from the physical context as noted
earlier in this discussion) has important benefits. The existing
regulatory framework similarly requires public entities to provide
equal opportunity to participate in or benefit from services,
programs, or activities; \231\ equal opportunity to obtain the same
result; \232\ full and equal enjoyment of services, programs, and
activities; \233\ and communications with people with disabilities
that are as effective as communications with others, which includes
consideration of timeliness, privacy, and independence.\234\ The
1991 and 2010 ADA Standards also allow designs or technologies that
result in substantially equivalent accessibility and usability.\235\
Because of the consistency between Sec. 35.205 and existing law,
the Department does not anticipate that the requirements for
bringing challenges to compliance with subpart H of this part will
be radically different than the framework that currently exists.
Subpart H adds certainty by establishing that conformance to WCAG
2.1 Level AA is generally sufficient for a public entity to meet its
obligations to ensure accessibility of web content and mobile apps.
However, in the absence of perfect conformance to WCAG 2.1 Level AA,
the compliance approach established by Sec. 35.205 keeps the focus
on equal access, as it is under current law. Section 35.205 provides
a limited degree of flexibility to public entities without
displacing this part's guarantee of equal access for individuals
with disabilities or upsetting the existing legal framework.
---------------------------------------------------------------------------
\231\ Id. Sec. Sec. 35.130(b)(1)(ii) and 35.160(b)(1).
\232\ Id. Sec. 35.130(b)(1)(iii).
\233\ Id. Sec. 35.130(b)(8).
\234\ Id. Sec. 35.160(a)(1) and (b).
\235\ 28 CFR part 36, appendix D, at 1000 (2022) (1991 ADA
Standards); 36 CFR part 1191, appendix B, at 329 (2022) (2010 ADA
Standards).
---------------------------------------------------------------------------
Finally, this approach to compliance is preferable to the other
approaches the Department considered because there was a notable
consensus among public commenters supporting it. A wide range of
commenters, including disability advocacy organizations, trade
groups representing public accommodations, accessibility experts,
and State and local government entities submitted supportive
comments. Even some of the commenters who opposed this approach
noted that it would be helpful if it was combined with a clear
technical standard, which the Department has done. Commenters
representing a broad spectrum of interests seem to agree with this
approach, with several commenters proposing very similar regulatory
language. After considering the relative consensus among commenters,
together with the other factors discussed herein, the Department has
decided to adopt the approach to defining compliance that is set
forth in Sec. 35.205.
Alternative Approaches Considered
In addition to the approach set forth in Sec. 35.205, the
Department also considered compliance approaches that would have
allowed isolated or temporary interruptions to conformance; required
a numerical percentage of conformance to the technical standard; or
allowed public entities to demonstrate compliance either by
establishing and following certain specified accessibility policies
and practices or by showing organizational maturity (i.e., that the
entity has a sufficiently robust accessibility program to
consistently produce accessible web content and mobile apps). The
Department also considered the approaches that other States, Federal
agencies, and countries have taken, and other approaches suggested
by commenters. After carefully weighing all of these alternatives,
the Department believes the compliance approach adopted in Sec.
35.205 is the most appropriate framework for determining whether a
State or local government entity has met its obligations under Sec.
35.200.
Isolated or Temporary Interruptions
As the Department noted in the NPRM,\236\ the current title II
regulation does not prohibit isolated or temporary interruptions in
service or access to facilities due to maintenance or repairs.\237\
In response to the Department's question about whether it should add
a similar provision in subpart H of this part, commenters generally
supported including an analogous provision in subpart H. They noted
that some technical difficulties are inevitable, especially when
updating web content or mobile apps. Some commenters elaborated that
noncompliance with the technical standard should be excused if it is
an isolated incident, as in one page out of many; temporary, as in
an issue with an update that is promptly fixed; or through other
approaches to measuring compliance addressed in this section. A few
commenters stated that due to the continuously evolving nature of
web content and mobile apps, there is even more need to include a
provision regarding isolated or temporary interruptions than there
is in the physical space. Another commenter suggested that entities
should prioritize emergency-related information by making sure they
have alternative methods of communication in place in anticipation
of isolated or temporary interruptions that prevent access to this
content.
---------------------------------------------------------------------------
\236\ 88 FR 51981.
\237\ See Sec. 35.133(b).
---------------------------------------------------------------------------
The Department has considered all of the comments it received on
this issue and,
[[Page 31391]]
based on those comments and its own independent assessment, decided
not to separately excuse an entity's isolated or temporary
noncompliance with Sec. 35.200(b) due to maintenance or repairs in
subpart H of this part. Rather, as stated in Sec. 35.205, an
entity's legal responsibility for an isolated or temporary instance
of nonconformance to WCAG 2.1 Level AA will depend on whether the
isolated or temporary instance of nonconformance--as with any other
nonconformance--would affect the ability of individuals with
disabilities to use the public entity's web content or mobile app in
a substantially equivalent way.
The Department believes it is likely that the approach set forth
in Sec. 35.205 reduces the need for a provision that would
explicitly allow for instances of isolated or temporary
noncompliance due to maintenance or repairs, while simultaneously
limiting the negative impact of such a provision on individuals with
disabilities. The Department believes this is true for two reasons.
First, to the extent isolated or temporary noncompliance due to
maintenance or repairs occur that affect web content or mobile apps,
it logically follows from the requirements in subpart H of this part
that these interruptions should generally result in the same impact
on individuals with and without disabilities after the compliance
date because, in most cases, all users would be relying on the same
content, and so interruptions to that content would impact all
users. From the compliance date onward, accessible web content and
mobile apps and the web content and mobile apps used by people
without disabilities should be one and the same (with the rare
exception of conforming alternate versions provided for in Sec.
35.202). Therefore, the Department expects that isolated or
temporary noncompliance due to maintenance or repairs generally will
affect the ability of people with disabilities to use web content or
mobile apps to the same extent it will affect the experience of
people without disabilities. For example, if a website is undergoing
overnight maintenance and so an online form is temporarily
unavailable, the form would already conform to WCAG 2.1 Level AA,
and so there would be no separate feature or form for individuals
with disabilities that would be affected while a form for people
without disabilities is functioning. In such a scenario, individuals
with and without disabilities would both be unable to access web
content, such that there would be no violation of subpart H of this
part.
Thus, the Department believes that a specific provision
regarding isolated or temporary noncompliance due to maintenance or
repairs is less necessary than it is for physical access. When there
is maintenance to a feature that provides physical access, such as a
broken elevator, access for people with disabilities is particularly
impacted. In contrast, when there is maintenance to web content or
mobile apps, people with and without disabilities will generally
both be denied access, such that no one is denied access on the
basis of disability.
Second, even to the extent isolated or temporary noncompliance
due to maintenance or repairs affects only an accessibility feature,
that noncompliance may fit the parameters laid out in Sec. 35.205
such that an entity will be deemed to have complied with its
obligations under Sec. 35.200. Section 35.205 does not provide a
blanket limitation that would excuse all isolated or temporary
noncompliance due to maintenance or repairs, however. The
provision's applicability would depend on the particular
circumstances of the interruption and its impact on people with
disabilities. It is possible that an interruption that only affects
an accessibility feature will not satisfy the elements of Sec.
35.205 and an entity will not be deemed in compliance with Sec.
35.200. Even one temporary or isolated instance of nonconformance
could affect the ability of individuals with disabilities to use the
web content with substantially equivalent ease of use, depending on
the circumstances. As discussed in this section, this will
necessarily be a fact-specific analysis.
In addition to being less necessary than in the physical access
context, the Department also believes a specific provision regarding
isolated or temporary interruptions due to maintenance or repairs
would have more detrimental incentives in the digital space by
discouraging public entities from adopting practices that would
reduce or avert the disruptions caused by maintenance and repair
that affect accessibility. Isolated or temporary noncompliance due
to maintenance or repairs of features that provide physical access
would be necessary regardless of what practices public entities put
in place,\238\ and the repairs and maintenance to those features
often cannot be done without interrupting access specifically for
individuals with disabilities. For example, curb ramps will need to
be repaved and elevators will need to be repaired because physical
materials break down. In contrast, the Department believes that,
despite the dynamic nature of web content and mobile apps,
incorporating accessible design principles and best practices will
generally enable public entities to anticipate and avoid many
instances of isolated or temporary noncompliance due to maintenance
or repairs--including many isolated or temporary instances of
noncompliance that would have such a significant impact that they
would affect people with disabilities' ability to use web content or
mobile apps in a substantially equivalent way. Some of these best
practices, such as regular accessibility testing and remediation,
would likely be needed for public entities to comply with subpart H
of this part regardless of whether the Department incorporated a
provision regarding isolated or temporary interruptions. And
practices like testing content before it is made available will
frequently allow maintenance and repairs that affect accessibility
to occur without interrupting access, in a way that is often
impossible in physical spaces. The Department declines to adopt a
limitation for isolated or temporary interruptions due to
maintenance or repairs. Such a limitation may disincentivize public
entities from implementing processes that could prevent many
interruptions from affecting substantially equivalent access.
---------------------------------------------------------------------------
\238\ See 28 CFR part 35, appendix B, at 705 (2022) (providing
that it is impossible to guarantee that mechanical devices will
never fail to operate).
---------------------------------------------------------------------------
Numerical Approach
The Department considered requiring a certain numerical
percentage of conformance to the technical standard. This percentage
could be a simple numerical calculation based on the number of
instances of nonconformance across the public entity's web content
or mobile app, or the percentage could be calculated by weighting
different instances of nonconformance differently. Weighted
percentages of many different types, including giving greater weight
to more important content, more frequently accessed content, or more
severe access barriers, were considered.
When discussing a numerical approach in the NPRM, the Department
noted that the approach seemed unlikely to ensure access.\239\ Even
if only a very small percentage of content does not conform to the
technical standard, that could still block an individual with a
disability from accessing a service, program, or activity. For
example, even if there was only one instance of nonconformance, that
single error could prevent an individual with a disability from
submitting an application for public benefits. Commenters agreed
with this concern. As such, the Department continues to believe that
a percentage-based approach would not be sufficient to advance the
objective of subpart H of this part to ensure equal access to State
and local government entities' web content and mobile apps.
Commenters also agreed with the Department that a percentage-based
standard would be difficult to implement because percentages would
be challenging to calculate.
---------------------------------------------------------------------------
\239\ 88 FR 51982-51983.
---------------------------------------------------------------------------
Based on the public comments it received about this framework,
which overwhelmingly agreed with the concerns the Department raised
in the NPRM, the Department continues to believe that adopting a
percentage-based approach is not feasible. The Department received a
very small number of comments advocating for this approach, which
were all from State and local government entities. Even fewer
commenters suggested a framework for implementing this approach
(i.e., the percentage of conformance that should be adopted or how
that percentage should be calculated). Based on the very limited
information provided in support of a percentage-based approach
submitted from commenters, as well as the Department's independent
assessment, it would be challenging for the Department to articulate
a sufficient rationale for choosing a particular percentage of
conformance or creating a specific conformance formula. Nothing
submitted in public comments meaningfully changed the Department's
previous concerns about calculating a percentage or specifying a
formula. For all of the reasons discussed, the Department declines
to adopt this approach.
[[Page 31392]]
Policy-Based Approach
The Department also considered allowing a public entity to
demonstrate compliance with subpart H of this part by affirmatively
establishing and following certain robust policies and practices for
accessibility feedback, testing, and remediation. Under this
approach, the Department would have specified that nonconformance to
WCAG 2.1 Level AA does not constitute noncompliance with subpart H
if a public entity has established certain policies for testing the
accessibility of its web content and mobile apps and remediating
inaccessible content, and the entity can demonstrate that it follows
those policies. Potential policies could also address accessibility
training.
As the Department stated in the NPRM, there were many ways to
define the specific policies that would have been deemed sufficient
under this approach.\240\ Though many commenters supported the idea
of a policy-based approach, they suggested a plethora of policies
that should be required by subpart H of this part. Commenters
disagreed about what type of testing should be required (i.e.,
automated, manual, or both), who should conduct testing, how
frequently testing should be conducted, and how promptly any
nonconformance should be remediated. As just one example of the
broad spectrum of policies proposed, the frequency of accessibility
testing commenters suggested ranged from every 30 days to every five
years. A few commenters suggested that no time frames for testing or
remediation should be specified in subpart H; rather, they proposed
that the nature of sufficient policies should depend on the covered
entity's resources, the characteristics of the content, and the
complexity of remediating the nonconformance. Commenters similarly
disagreed about whether, when, and what kind of training should be
required. Commenters also suggested requiring many additional
policies and practices, including mechanisms for providing
accessibility feedback; accessibility statements; third-party
audits; certifications of conformance; documentation of contracting
and procurement practices; adopting specific procurement practices;
setting certain budgets or staffing requirements; developing
statewide panels of accessibility experts; and making accessibility
policies, feedback, reports, or scorecards publicly available.
---------------------------------------------------------------------------
\240\ Id. at 51983-51984.
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The Department declines to adopt a policy-based approach
because, based on the wide range of policies and practices proposed
by commenters, there is not a sufficient rationale that would
justify adopting any specific set of accessibility policies in the
generally applicable regulation in subpart H of this part. Many of
the policies commenters suggested would require the Department to
dictate particular details of all public entities' day-to-day
operations in a way the Department does not believe is appropriate
or sufficiently justified to do in subpart H. There was no consensus
among commenters about what policies would be sufficient, and most
commenters did not articulate a specific basis supporting why their
preferred policies were more appropriate than any other policies. In
the absence of more specific rationales or a clearer consensus among
commenters or experts in the field about what policies would be
sufficient, the Department does not believe it is appropriate to
prescribe what specific accessibility testing and remediation
policies all State and local government entities must adopt to
comply with their obligations under subpart H. Based on the
information available to the Department at this time, the
Department's adoption of any such specific policies would be
unsupported by sufficient evidence that these policies will ensure
accessibility, which could cause significant harm. It would allow
public entities to comply with their legal obligations under subpart
H based on policies alone, even though those policies may fail to
provide equal access to online services, programs, or activities.
The Department also declines to adopt a policy-based approach
that would rely on the type of general, flexible policies supported
by some commenters, in which the sufficiency of public entities'
policies would vary depending on the factual circumstances. The
Department does not believe that such an approach would give
individuals with disabilities sufficient certainty about what
policies and access they could expect. Such an approach would also
fail to give public entities sufficient certainty about how they
should meet their legal obligations under subpart H of this part. If
it adopted a flexible approach suggested by commenters, the
Department might not advance the current state of the law, because
every public entity could choose any accessibility testing and
remediation policies it believed would be sufficient to meet its
general obligations, without conforming to the technical standard or
ensuring access. The Department has heard State and local government
entities' desire for increased clarity about their legal
obligations, and adopting a flexible standard would not address that
need.
Organizational Maturity
Another compliance approach that the Department considered would
have allowed an entity to demonstrate compliance with subpart H of
this part by showing organizational maturity (i.e., that the
organization has a sufficiently robust program for web and mobile
app accessibility). As the Department explained in the NPRM, while
accessibility conformance testing evaluates the accessibility of a
particular website or mobile app at a specific point in time,
organizational maturity evaluates whether an entity has developed
the infrastructure needed to produce accessible web content and
mobile apps consistently.\241\
---------------------------------------------------------------------------
\241\ Id. at 51984; see also W3C, Accessibility Maturity Model:
Group Draft Note, Sec. 1.1: About the Accessibility Maturity Model
(Dec. 15, 2023), https://www.w3.org/TR/maturity-model/ [https://perma.cc/UX4X-J4MF].
---------------------------------------------------------------------------
Commenters, including disability advocacy organizations, State
and local government entities, trade groups representing public
accommodations, and accessibility experts were largely opposed to
using an organizational maturity approach to evaluate compliance.
Notably, one of the companies that developed an organizational
maturity model the Department discussed in the NPRM did not believe
that an organizational maturity model was an appropriate way to
assess compliance. Other commenters who stated that they supported
the organizational maturity approach also seemed to be endorsing
organizational maturity as a best practice rather than a legal
framework, expressing that it was not an appropriate substitute for
conformance to a technical standard.
Misunderstandings about what an organizational maturity
framework is and how the Department was proposing to use it that
were evident in several comments also demonstrated that the
organizational maturity approach raised in the NPRM was not
sufficiently clear to the public. For example, at least one
commenter conflated organizational maturity with the approach the
Department considered that would assess an organization's policies.
Another commenter seemed to understand the Department's
consideration of organizational maturity as only recommending a best
practice, even though the Department was considering it as legal
requirement. Comments like these indicate that the organizational
maturity approach the Department considered to measure compliance
would be confusing to the public if adopted.
Among commenters that supported the organizational maturity
approach, there was no consensus about how organizational maturity
should be defined or assessed, or what level of organizational
maturity should be sufficient to demonstrate compliance with subpart
H of this part. There are many ways to measure organizational
maturity, and it is not clear to the Department that one
organizational maturity model is more appropriate or more effective
than any other. The Department therefore declines to adopt an
organizational maturity approach in subpart H because any
organizational maturity model for compliance with web accessibility
that the Department could develop or incorporate would not have
sufficient justification based on the facts available to the
Department at this time. As with the policy-based approach discussed
previously in this appendix, if the Department were to allow public
entities to define their own organizational maturity approach
instead of adopting one specific model, this would not provide
sufficient predictability or certainty for people with disabilities
or public entities.
The Department also declines to adopt this approach because
commenters did not provide--and the Department is not aware of--
information or data to suggest that increased organizational
maturity reliably resulted in increased conformance to WCAG 2.1
Level AA. Like the policy-based approach discussed previously in
this appendix, if the Department were to adopt an organizational
maturity approach that was not sufficiently rigorous, public
entities would be able to comply with subpart H of this part without
providing equal access. This would undermine the purpose of the
part.
[[Page 31393]]
Other Federal, International, and State Approaches
The Department also considered approaches to measuring
compliance that have been used by other agencies, other countries or
international organizations, and States, as discussed in the
NPRM.\242\ As to other Federal agencies' approaches, the Department
has decided not to adopt the Access Board's standards for section
508 compliance for the reasons discussed in Sec. 35.200 of the
section-by-section analysis regarding the technical standard. The
Section 508 Standards require full conformance to WCAG 2.0 Level
AA,\243\ but the Department has determined that requiring perfect
conformance to the technical standard set forth in subpart H of this
part would not be appropriate for the reasons discussed elsewhere in
this appendix. Perfect conformance is less appropriate in subpart H
than under section 508 given the wide variety of public entities
covered by title II of the ADA, many of which have varying levels of
resources, compared to the relatively limited number of Federal
agencies that must follow section 508. For the reasons stated in the
section-by-section analysis of Sec. 35.200 regarding compliance
time frame alternatives, the Department also declines to adopt the
tiered approach that the Department of Transportation took in its
regulation on accessibility of air carrier websites, which required
certain types of content to be remediated more quickly.\244\
---------------------------------------------------------------------------
\242\ 88 FR 51980-51981.
\243\ 36 CFR 1194.1; id. at part 1194, appendix A, section
E205.4.
\244\ See 14 CFR 382.43.
---------------------------------------------------------------------------
The Department has also determined that none of the
international approaches to evaluating compliance with web
accessibility laws that were discussed in the NPRM are currently
feasible to adopt in the United States.\245\ The methodologies used
by the European Union and Canada require reporting to government
agencies. This would pose counterproductive logistical and
administrative difficulties for regulated entities and the
Department. The Department believes that the resources public
entities would need to spend on data collection and reporting would
detract from efforts to increase the accessibility of web content
and mobile apps. Furthermore, reporting to Federal agencies is not
required under other subparts of the ADA, and it is not clear to the
Department why such reporting would be more appropriate under
subpart H of this part than under others. New Zealand's approach,
which requires testing and remediation, is similar to the policy-
based approach already discussed in this section, and the Department
declines to adopt that approach for the reasons stated in that
discussion. The approach taken in the United Kingdom, where a
government agency audits websites and mobile apps, sends a report to
the public entity, and requires the entity to fix accessibility
issues, is similar to one method the Department currently uses to
enforce title II of the ADA, including title II web and mobile app
accessibility.\246\ Though the Department will continue to
investigate complaints and enforce the ADA, given constraints on its
resources and the large number of entities within its purview to
investigate, the Department is unable to guarantee that it will
conduct a specific amount of enforcement under subpart H of this
part on a particular schedule.
---------------------------------------------------------------------------
\245\ 88 FR 51980.
\246\ See Sec. 35.172(b) and (c) (describing the process for
compliance reviews). As noted, however, the Department is unable to
guarantee that it will conduct a specific amount of enforcement
under subpart H of this part on a particular schedule.
---------------------------------------------------------------------------
The Department has considered many States' approaches to
assessing compliance with their web accessibility laws \247\ and
declines to adopt these laws at the Federal level. State laws like
those in Florida, Illinois, and Massachusetts, which do not specify
how compliance will be measured or how entities can demonstrate
compliance, are essentially requiring 100 percent compliance with a
technical standard. This approach is not feasible for the reasons
discussed earlier in this section. In addition, this approach is not
feasible because of the large number and wide variety of public
entities covered by the ADA, as compared with the relatively limited
number of State agencies in a given State. Laws like California's,
which require entities covered by California's law to certify or
post evidence of compliance, would impose administrative burdens on
public entities similar to those imposed by the international
approaches discussed in the preceding paragraph. Some State
agencies, including in California, Minnesota, and Texas, have
developed assessment checklists, trainings, testing tools, and other
resources. The Department will issue a small entity compliance
guide,\248\ which should help public entities better understand
their obligations. As discussed elsewhere in this appendix, the
Department may also provide further guidance about best practices
for a public entity to meet its obligations under subpart H of this
part. However, such resources are not substitutes for clear and
achievable regulatory requirements. Some commenters stated that
regulations should not be combined with best practices or guidance,
and further stated that testing methodologies are more appropriate
for guidance. The Department agrees and believes State and local
government entities are best suited to determine how they will
comply with the technical standard, depending on their needs and
resources.
---------------------------------------------------------------------------
\247\ 88 FR 51980-51981.
\248\ See Public Law 104-121, sec. 212, 110 Stat. at 858.
---------------------------------------------------------------------------
The Department also declines to adopt a model like the one used
in Texas, which requires State agencies to, among other steps,
conduct tests with one or more accessibility validation tools,
establish an accessibility policy that includes criteria for
compliance monitoring and a plan for remediation of noncompliant
items, and establish goals and progress measurements for
accessibility.\249\ This approach is one way States and other public
entities may choose to ensure that they comply with subpart H of
this part. However, as noted in the discussion of the policy-based
approach, the Department is unable to calibrate requirements that
provide sufficient predictability and certainty for every public
entity while maintaining sufficient flexibility. The Department
declines to adopt an approach like Texas's for the same reasons it
declined to adopt a policy-based approach.
---------------------------------------------------------------------------
\249\ 1 Tex. Admin. Code secs. 206.50, 213.21 (West 2023).
---------------------------------------------------------------------------
Commenters suggested a few additional State and international
approaches to compliance that were not discussed in the NPRM. Though
the Department reviewed and considered each of these approaches, it
finds that they are not appropriate to adopt in subpart H of this
part. First, Washington's accessibility policy \250\ and associated
standard \251\ require agencies to develop policies and processes to
ensure compliance with the technical standard, including
implementing and maintaining accessibility plans. As with Texas's
law and a more general policy-based approach, which are both
discussed elsewhere in this appendix, Washington's approach would
not provide sufficient specificity and certainty to ensure
conformance to a technical standard in the context of the title II
regulatory framework that applies to a wide range of public
entities; however, this is one approach to achieving conformance
that entities could consider.
---------------------------------------------------------------------------
\250\ Wash. Tech. Sols., Policy 188--Accessibility, https://watech.wa.gov/sites/default/files/2023-09/188_Accessibility_2019_AS%2520v3%2520Approved.docx. A Perma archive
link was unavailable for this citation.
\251\ Wash. Tech. Sols., Standard 188.10--Minimum Accessibility
Standard, https://watech.wa.gov/sites/default/files/2023-09/188.10_Min_Std_2019_AS_Approved_03102020_1.docx. A Perma archive
link was unavailable for this citation.
---------------------------------------------------------------------------
Additionally, one commenter suggested that the Department look
to the Accessibility for Ontarians with Disabilities Act \252\ and
consider taking some of the steps to ensure compliance that the
commenter states Ontario has taken. Specifically, the commenter
suggested requiring training on how to create accessible content and
creating an advisory council that makes suggestions on how to
increase public education about the law's requirements. Though the
Department will consider providing additional guidance to the public
about how to comply with subpart H of this part, it declines to
require State and local government entities to provide training to
their employees. This would be part of a policy-based compliance
approach, which the Department has decided not to adopt for the
reasons discussed. However, the Department notes that public
entities will likely find that some training is necessary and
helpful to achieve compliance. The Department also declines to
require State and local government entities to adopt accessibility
advisory councils because, like training, this would be part of a
policy-based compliance approach. However, public entities remain
free to do so if they choose.
---------------------------------------------------------------------------
\252\ Accessibility for Ontarians With Disabilities Act, 2005,
S.O. 2005, c. 11 (Can.), https://www.ontario.ca/laws/statute/05a11
[https://perma.cc/V26B-2NSG].
---------------------------------------------------------------------------
Finally, a coalition of State Attorneys General described how
their States' agencies currently determine whether State websites
and other technology are accessible, and suggested that the
Department incorporate
[[Page 31394]]
similar practices into its compliance framework. Some of these
States have designated agencies that conduct automated testing,
manual testing, or both, while others offer online tools or require
agencies to conduct their own manual testing. Though some of these
approaches come from States not already discussed, including Hawaii,
New Jersey, and New York, the approaches commenters from these
States discussed are similar to other approaches the Department has
considered. These States have essentially adopted a policy-based
approach. As noted elsewhere in this appendix, the Department
believes that it is more appropriate for States and other regulated
entities to develop their own policies to ensure compliance than it
would be for the Department to establish one set of compliance
policies for all public entities. Several State agencies conduct
regular audits, but as noted previously in this appendix, the
Department lacks the capacity to guarantee it will conduct a
specific number of enforcement actions under subpart H of this part
on a particular schedule. And as an agency whose primary
responsibility is law enforcement, the Department is not currently
equipped to develop and distribute accessibility testing software
like some States have done. State and local government entities may
wish to consider adopting practices similar to the ones commenters
described even though subpart H does not require them to do so.
Other Approaches Suggested by Commenters
Commenters also suggested many other approaches the Department
should take to assess and ensure compliance with subpart H of this
part. The Department has considered all of the commenters'
suggestions and declines to adopt them at this time.
First, commenters suggested that public entities should be
permitted to provide what they called an ``accommodation'' or an
``equally effective alternative method of access'' when web content
or mobile apps are not accessible. Under the approach these
commenters envisioned, people with disabilities would need to pursue
an interactive process where they discussed their access needs with
the public entity and the public entity would determine how those
needs would be met. The Department believes that adopting this
approach would undermine a core premise of subpart H of this part,
which is that web content and mobile apps will generally be
accessible by default. That is, people with disabilities typically
will not need to make a request to gain access to services,
programs, or activities offered online, nor will they typically need
to receive information in a different format. If the Department were
to adopt the commenters' suggestion, the Department believes that
subpart H would not address the gaps in accessibility highlighted in
the need for the rulemaking discussed in section III.D.4 of the
preamble to the final rule, as the current state of the law already
requires public entities to provide reasonable modifications and
effective communication to people with disabilities.\253\ Under
title II, individuals with disabilities cannot be, by reason of such
disability, excluded from participation in or denied the benefits of
the services, programs, or activities offered by State and local
government entities, including those offered via the web and mobile
apps.\254\ One of the goals of the ADA also includes reducing
segregation.\255\ Accordingly, it is important for individuals with
disabilities to have access to the same platforms as their neighbors
and friends at the same time, and the commenters' proposal would not
achieve that objective.
---------------------------------------------------------------------------
\253\ Section 35.130(b)(7) and 35.160.
\254\ 42 U.S.C. 12132.
\255\ 42 U.S.C. 12101(a)(2) and (5).
---------------------------------------------------------------------------
Second, commenters suggested a process, which is sometimes
referred to as ``notice and cure,'' by which a person with a
disability who cannot access web content or a mobile app would need
to notify the public entity that their web content or mobile app was
not accessible and give the public entity a certain period of time
to remediate the inaccessibility before the entity could be
considered out of compliance with subpart H of this part. The
Department is not adopting this framework for reasons similar to
those discussed in relation to the ``equally effective alternative''
approach rejected in the previous paragraph. With subpart H, the
Department is ensuring that people with disabilities generally will
not have to request access to public entities' web content and
content in mobile apps, nor will they typically need to wait to
obtain that access. Given the Department's longstanding position on
the accessibility of online content, discussed in section III.B and
C of the preamble to the final rule, public entities should already
be on notice of their obligations. If they are not, the final rule
unquestionably puts them on notice.
Third, commenters suggested a flexible approach to compliance
that would only require substantial compliance, good faith effort,
reasonable efforts, or some similar concept that would allow the
meaning of compliance to vary too widely depending on the
circumstances, and without a clear connection to whether those
efforts result in actual improvements to accessibility for people
with disabilities. The Department declines to adopt this approach
because it does not believe such an approach would provide
sufficient certainty or predictability to State and local government
entities or individuals with disabilities. Such an approach would
undermine the benefits of adopting a technical standard.
The Department has already built a series of mechanisms into
subpart H of this part that are designed to make it feasible for
public entities to comply, including the delayed compliance dates in
Sec. 35.200(b), the exceptions in Sec. 35.201, the conforming
alternate version provision in Sec. 35.202, the fundamental
alteration or undue burdens limitations in Sec. 35.204, and the
compliance approach discussed here. In doing so, the Department has
allowed for several departures from the technical standard, but only
under clearly defined and uniform criteria, well-established
principles in the ADA or WCAG, or circumstances that would not
affect substantially equivalent access. Many of the approaches that
commenters proposed are not similarly cabined. Those approaches
would often allow public entities' mere attempts to achieve
compliance to substitute for access. The Department declines to
adopt more flexibility than it already has because it finds that
doing so would come at too great a cost to accessibility and to the
clarity of the obligations in subpart H.
Fourth, several commenters proposed a multi-factor or tiered
approach to compliance. For example, one commenter suggested a
three-tiered system where after one failed accessibility test the
public entity would investigate the problem, after multiple
instances of nonconformance they would enter into a voluntary
compliance agreement with the Department, and if there were
widespread inaccessibility, the Department would issue a finding of
noncompliance and impose a deadline for remediation. Similarly,
another commenter proposed that enforcement occur only when two of
three criteria are met: errors are inherent to the content itself,
errors are high impact or widely prevalent, and the entity shows no
evidence of measurable institutional development regarding
accessibility policy or practice within a designated time frame. The
Department believes that these and other similar multi-factor
approaches to compliance would be too complex for public entities to
understand and for the Department to administer. It would also be
extremely challenging for the Department to define the parameters
for such an approach with an appropriate level of precision and a
sufficiently well-reasoned justification.
Finally, many commenters proposed approaches to compliance that
would expand the Department's role. Commenters suggested that the
Department grant exceptions to the requirements in subpart H of this
part on a case-by-case basis; specify escalating penalties; conduct
accessibility audits, testing, or monitoring; provide grant funding;
develop accessibility advisory councils; provide accessibility
testing tools; specify acceptable accessibility testing software,
resources, or methodologies; provide a list of accessibility
contractors; and provide guidance, technical assistance, or
training.
With the exception of guidance and continuing to conduct
accessibility testing as part of compliance reviews or other
enforcement activities, the Department is not currently in a
position to take any of the actions commenters requested. As
described in this section, the Department has limited enforcement
resources. It is not able to review requests for exceptions on a
case-by-case basis, nor is it able to conduct accessibility testing
or monitoring outside of compliance reviews, settlement agreements,
or consent decrees. Civil penalties for noncompliance with the ADA
are set by statute and are not permitted under title II.\256\ Though
the Department sometimes seeks monetary relief for individuals
aggrieved under title II in its enforcement actions, the appropriate
amount of relief is determined on a case-by-case basis and would be
[[Page 31395]]
challenging to establish in a generally applicable rule. The
Department does not currently operate a grant program to assist
public entities in complying with the ADA, and, based on the
availability and allocation of the Department's current resources,
it does not believe that administering advisory committees would be
the best use of its resources. The Department also lacks the
resources and technical expertise to develop and distribute
accessibility testing software.
---------------------------------------------------------------------------
\256\ See 42 U.S.C. 12188(b)(2)(C) (allowing civil penalties
under title III); see also 28 CFR 36.504(a)(3) (updating the civil
penalty amounts).
---------------------------------------------------------------------------
The Department will issue a small entity compliance guide \257\
and will continue to consider what additional guidance or training
it can provide that will assist public entities in complying with
their obligations. However, the Department believes that so long as
public entities satisfy the requirements of subpart H of this part,
it is appropriate to allow public entities flexibility to select
accessibility tools and contractors that meet their individualized
needs. Any specific list of tools or contractors that the Department
could provide is unlikely to be helpful given the rapid pace at
which software and contractor availability changes. Public entities
may find it useful to consult other publicly available resources
that can assist in selecting accessibility evaluation tools and
experts.\258\ Resources for training are also already
available.\259\ State and local government entities do not need to
wait for the Department's guidance before consulting with technical
experts and using resources that already exist.
---------------------------------------------------------------------------
\257\ See Public Law 104-121, sec. 212, 110 Stat. at 858.
\258\ See, e.g., W3C, Evaluating Web Accessibility Overview,
https://www.w3.org/WAI/test-evaluate/ [https://perma.cc/6RDS-X6AR]
(Aug. 1, 2023).
\259\ See, e.g., W3C, Digital Accessibility Foundations Free
Online Course, https://www.w3.org/WAI/courses/foundations-course/
[https://perma.cc/KU9L-NU4H] (Oct. 24, 2023).
---------------------------------------------------------------------------
Public Comments on Other Issues in Response to the NPRM
The Department received comments on a variety of other issues in
response to the NPRM. The Department responds to the remaining
issues not already addressed in this section-by-section analysis.
Scope
The Department received some comments that suggested that the
Department should take actions outside the scope of the rulemaking
to improve accessibility for people with disabilities. For example,
the Department received comments suggesting that the rulemaking
should: apply to all companies or entities covered under title III
of the ADA; prohibit public entities from making information or
communication available only via internet means; revise other
portions of the title II regulation like subpart B of this part
(general requirements); require accessibility of all documents
behind any paywall regardless of whether title II applies; and
address concerns about how the increased use of web and mobile app
technologies may affect individuals with electromagnetic
sensitivity. While the Department recognizes that these are
important accessibility issues to people with disabilities across
the country, they are outside of the scope of subpart H of this
part, which focuses on web and mobile app accessibility under title
II. Accordingly, these issues are not addressed in detail in subpart
H.
The Department also received comments recommending that this
part cover a broader range of technology in addition to web content
and mobile apps, including technologies that may be developed in the
future. The Department declines to broaden this part in this way.
If, for example, the Department were to broaden the scope of the
rulemaking to cover an open-ended range of technology, it would
undermine one of the major goals of the rulemaking, which is to
adopt a technical standard State and local government entities must
adhere to and clearly specify which content must comply with that
standard. In addition, the Department does not currently have
sufficient information about how technology will develop in the
future, and how WCAG 2.1 Level AA will (or will not) apply to that
technology, to enable the Department to broaden the part to cover
all future technological developments. Also, the Department has a
long history of engaging with the public and stakeholders about web
and mobile app accessibility and determined that it was appropriate
to prioritize regulating in that area. However, State and local
government entities have existing obligations under title II of the
ADA with respect to services, programs, and activities offered
through other types of technology.\260\
---------------------------------------------------------------------------
\260\ See Sec. Sec. 35.130(b)(1)(ii) and (b)(7) and 35.160.
---------------------------------------------------------------------------
Another commenter suggested that the rulemaking should address
operating systems. The commenter also suggested clarifying that
public entities are required to ensure web content and mobile apps
are accessible, usable, and interoperable with assistive technology.
The Department understands this commenter to be requesting that the
Department establish additional technical standards in this part
beyond WCAG 2.1 Level AA, such as technical standards related to
software. As discussed in this section and the section-by-section
analysis of Sec. 35.104, subpart H of this part focuses on web
content and mobile apps. The Department also clarified in the
section-by-section analysis of Sec. 35.200 why it believes WCAG 2.1
Level AA is the appropriate technical standard for subpart H.
Coordination With Other Federal and State Entities
One commenter asked if the Department has coordinated with State
governments and other Federal agencies that are working to address
web and mobile app accessibility to ensure there is consistency with
other government accessibility requirements. Subpart H of this part
is being promulgated under part A of title II of the ADA. The
Department's analysis and equities may differ from State and local
government entities that may also interpret and enforce other laws
addressing the rights of people with disabilities. However, through
the NPRM process, the Department received feedback from the public,
including public entities, through written comments and listening
sessions. In addition, the final rule and associated NPRM were
circulated to other Federal Government agencies as part of the
Executive Order 12866 review process. In addition, under Executive
Order 12250, the Department also coordinates with other Federal
agencies to ensure the consistent and effective implementation of
section 504 of the Rehabilitation Act, which prohibits
discrimination on the basis of disability, and to ensure that such
implementation is consistent with title II of the ADA across the
Federal Government.\261\ Accordingly, the Department will continue
to work with other Federal agencies to ensure consistency with its
interpretations in the final rule, in accordance with Executive
Order 12250.
---------------------------------------------------------------------------
\261\ Memorandum for Federal Agency Civil Rights Directors and
General Counsels, from Kristen Clarke, Assistant Attorney General,
Civil Rights Division, U.S. Department of Justice, Re: Executive
Order 12250 Enforcement and Coordination Updates (Jan. 20, 2023),
https://www.justice.gov/media/1284016/dl?inline [https://perma.cc/AL6Q-QC57]; Memorandum for Federal Agency Civil Rights Directors and
General Counsels, from John M. Gore, Acting Assistant Attorney
General, Civil Rights Division, U.S. Department of Justice, Re:
Coordination of Federal Agencies' Implementation of Title II of the
Americans with Disabilities Act and Section 504 of the
Rehabilitation Act, Civil Rights Division, U.S. Department of
Justice (Apr. 24, 2018), https://www.justice.gov/crt/page/file/1060321/download [https://perma.cc/9Q98-BVU2].
---------------------------------------------------------------------------
Impact on State Law
Some commenters discussed how this part might impact State law,
including one comment that asked how a public entity should proceed
if it is subject to a State law that provides greater protections
than this part. This part will preempt State laws affecting entities
subject to title II of the ADA only to the extent that those laws
provide less protection for the rights of individuals with
disabilities.\262\ This part does not invalidate or limit the
remedies, rights, and procedures of any State laws that provide
greater or equal protection for the rights of individuals with
disabilities. Moreover, the Department's provision on equivalent
facilitation at Sec. 35.203 provides that nothing prevents a public
entity from using designs, methods, or techniques as alternatives to
those prescribed in subpart H of this part, provided that such
alternatives result in substantially equivalent or greater
accessibility and usability. Accordingly, for example, if a State
law requires public entities in that State to conform to WCAG 2.2,
nothing in subpart H would prevent a public entity from conforming
with that standard.
---------------------------------------------------------------------------
\262\ See 42 U.S.C. 12201.
---------------------------------------------------------------------------
Preexisting Technology
One public entity said that the Department should permit public
entities to continue to use certain older technologies, because some
public entities have systems that were developed several years ago
with technologies that may not be able to comply with this part. The
commenter also added that if a public entity is aware of the
technical difficulties or need for remediation in relation to recent
maintenance, updates, or repairs, more leniency should be given to
the
[[Page 31396]]
public entity with respect to the compliance time frame.
The Department believes it has balanced the need to establish a
workable standard for public entities with the need to ensure
accessibility for people with disabilities in many ways, such as by
establishing delayed compliance dates to give public entities time
to ensure their technologies can comply with subpart H of this part.
In addition, subpart H provides some exceptions addressing older
content, such as the exceptions for archived web content,
preexisting conventional electronic documents, and preexisting
social media posts. The Department believes that these exceptions
will assist covered entities in using their resources more
efficiently. Also, the Department notes that public entities will be
able to rely on the fundamental alteration or undue burdens and
limitations in subpart H where they can satisfy the requirements of
those provisions. Finally, the Department discussed isolated or
temporary interruptions in Sec. 35.205 of the section-by-section
analysis, where it explained its decision not to separately excuse
an entity's isolated or temporary noncompliance with Sec. 35.200
due to maintenance or repairs.
Overlays
Several comments expressed concerns about public entities using
accessibility overlays and automated checkers.\263\ Subpart H of
this part sets forth a technical standard for public entities' web
content and mobile apps. Subpart H does not address the internal
policies or procedures that public entities might implement to
conform to the technical standard under subpart H.
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\263\ See W3C, Overlay Capabilities Inventory: Draft Community
Group Report (Feb. 12, 2024), https://a11yedge.github.io/capabilities/ [https://perma.cc/2762-VJEV]; see also W3C, Draft Web
Accessibility Evaluation Tools List, https://www.w3.org/WAI/ER/tools/ [https://perma.cc/Q4ME-Q3VW] (last visited Feb. 12, 2024).
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ADA Coordinator
At least one commenter suggested that the Department should
require public entities to hire an ADA Coordinator devoted
specifically to web accessibility, similar to the requirement in the
existing title II regulation at Sec. 35.107(a). The Department
believes it is important for public entities to have flexibility in
deciding how to internally oversee their compliance with subpart H
of this part. However, nothing in subpart H would prohibit a public
entity from appointing an ADA coordinator for web content and mobile
apps if the public entity believes taking such an action would help
it comply with subpart H.
Dated: April 8, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-07758 Filed 4-23-24; 8:45 am]
BILLING CODE 4410-13-P
