# Information and Communication Technology (ICT) Standards and Guidelines

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-03467

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** February 27, 2015
- **Citation:** 80 FR 10880

## Text

ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD
36 CFR Parts 1193 and 1194
[Docket No. ATBCB-2015-0002]
RIN 3014-AA37
Information and Communication Technology (ICT) Standards and Guidelines

AGENCY:

Architectural and Transportation Barriers Compliance Board.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Architectural and Transportation Barriers Compliance Board (Access Board or Board), is proposing to revise and update, in a single document, both its standards for electronic and information technology developed, procured, maintained, or used by federal agencies covered by section 508 of the Rehabilitation Act of 1973, and its guidelines for telecommunications equipment and customer premises equipment covered by Section 255 of the Communications Act of 1934. The proposed revisions and updates to the section 508-based standards and section 255-based guidelines are intended to ensure that information and communication technology covered by the respective statutes is accessible to and usable by individuals with disabilities.

DATES:

Submit comments by May 28, 2015. Two hearings will be held on the proposed rule on:

1. March 5, 2015, 9:30 to 11:30 a.m., San Diego, CA and

2. March 11, 2015, 9:30 to 11:30 a.m., Washington, DC.

To preregister to testify at either of the hearings, contact Kathy Johnson at (202) 272-0041 (voice), (202) 272-0082 (TTY), or
johnson@access-board.gov
.

ADDRESSES:

Submit comments by any one of the following methods:

• Federal eRulemaking Portal:
http://www.regulations.gov
. Follow the instructions for submitting comments. The Regulations.gov ID for this docket is ATBCB-2015-0002.

• Email:
docket@access-board.gov
. Include docket number ATBCB-2015-0002 in the subject line of the message.

• Fax: 202-272-0081.

• Mail or Hand Delivery/Courier: Office of Technical and Information Services, Access Board, 1331 F Street NW., Suite 1000, Washington, DC 20004-1111.

All comments, including any personal information provided, will be posted without change to
http://www.regulations.gov
and be available for public viewing.

The hearing locations are:

1. San Diego, CA: Manchester Grand Hyatt Hotel (Mission Beach A & B, 3rd floor), One Market Place, San Diego, CA 92101.

2. Washington, DC: Access Board conference room, 1331 F Street NW., Suite 800, Washington, DC 20004.

Witnesses can testify in person at the hearing in San Diego. Witnesses can testify in person or by telephone at the hearing in Washington, DC. Copies of the rule will not be available at the hearings. Call-in information and a communication access real-time translation (CART) web streaming link for the Washington, DC hearing will be posted on the Access Board's Web site at
http://www.access-board.gov/ictrefresh
. The hearings will be accessible to persons with disabilities. An assistive listening system, communication access real-time translation, and sign language interpreters will be provided. Persons attending the meetings are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants (see
www.accessboard.gov/about/policies/fragrance.htm
for more information).

FOR FURTHER INFORMATION CONTACT:

Timothy Creagan, Access Board, 1331 F Street NW., Suite 1000, Washington, DC 20004-1111. Telephone: (202) 272-0016 (voice) or (202) 272-0074 (TTY). Email address:
508@access-board.gov
.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Public Participation and Request for Comments

II. Executive Summary

III. Statutory Background

IV. Rulemaking History

V. Major Issues

VI. Section-by-Section Analysis

VII. Effective Date

VIII. Regulatory Process Matters

In this preamble, the Architectural and Transportation Barriers Compliance Board is referred to as “Access Board,” “Board,” “we,” or “our.”

I. Public Participation and Request for Comments

The Access Board encourages all persons interested in the rulemaking to submit comments on this proposed rule, as well as the preliminary assessment of its estimated benefits and costs. While the Board invites comment on any aspect of our proposed rule and regulatory assessment, we particularly seek information and data in response to the questions posed throughout this preamble. Instructions for submitting and viewing comments are provided under the
Addresses
heading above. The Board will consider all timely comments and may change the proposed rule based on such comments.

II. Executive Summary

Purpose and Legal Authority

We are proposing to update our existing Electronic and Information Technology Accessibility Standards under section 508 of the Rehabilitation Act of 1973, (“508 Standards”), as well as our Telecommunications Act Accessibility Guidelines under Section 255 of the Communications Act of 1934 (“255 Guidelines”). Since the guidelines and standards were issued in 2000 and 1998 respectively, there has been a technological revolution, accompanied by an ever-expanding use of technology and a proliferation of accessibility standards globally. Technological advances have resulted in the widespread use of multifunction devices that call into question the ongoing utility of the product-by-product approach used in the Access Board's existing 508 Standards and 255 Guidelines. For example, since the existing 508 Standards were issued in 2000, mobile phones moved from devices with voice-only capability, to so-called “smartphones” offering voice, text, and video communications. Desktop computers are no longer the only information processing hardware: Mobile devices and tablets, which have very different input and output characteristics, can typically process vast amounts of electronic information and function like desktop computers or telephones. In recognition of these converging technologies, one of the primary purposes of the proposed rule is to replace the current product-based approach with requirements based on functionality, and, thereby, ensure that accessibility for people with disabilities keeps pace with advances in electronic and information technology.

Additionally, a number of voluntary consensus standards have been developed by standards organizations worldwide over the past decade. Examples of these standards include: The Web Accessibility Initiative's Web Content Accessibility Guidelines (WCAG) 2.0, EN 301 549 V1.1.1 (2014-02), “Accessibility requirements for public procurement of ICT products and services in Europe,” and the Human Factors Ergonomics Society's ANSI/HFES 200.2 (2008) ergonomics specifications for the design of accessible software. The harmonization with such international standards and guidelines creates a larger marketplace

for accessibility solutions, thereby attracting more offerings and increasing the likelihood of commercial availability of accessible information and communication technology options.

These dramatic changes have led the Access Board to propose revisions to the existing 508 Standards and 255 Guidelines. We are proposing to update the two sets of regulatory provisions jointly to ensure consistency in accessibility across the spectrum of communication and electronic and information technologies and products. The proposed standards and guidelines would support the access needs of individuals with disabilities, while also taking into account the costs to federal agencies and manufacturers of telecommunications equipment of providing accessible electronic information and communication technology.

The term “information and communication technology” (ICT) is used widely throughout this preamble and the proposed rule. Unless otherwise noted, it is intended to broadly encompass electronic and information technology covered by Section 508, as well as telecommunications products, interconnected Voice over Internet Protocol (VoIP) products, and Customer Premises Equipment (CPE) covered by Section 255. Examples of ICT include computers, information kiosks and transaction machines, telecommunications equipment, multifunction office machines, software, Web sites, and electronic documents.

This proposed rule would eliminate 36 CFR part 1193 in its entirety, revise 36 CFR 1194, and add three new appendices to Part 1194 containing the Application and Scoping Requirements for the 508 Standards (Appendix A), the Application and Scoping Requirements for the 255 Guidelines (Appendix B), and new Technical Requirements that apply to both Section 508-covered and Section 255-covered ICT. In this preamble, the Board refers to specific provisions of the proposed new 508 Standards and 255 Guidelines by their proposed new section numbers: E101-103 (508 Chapter 1: Application and Administration); E201-208 (508 Chapter 2: Scoping Requirements); C101-103 (255 Chapter 1: Application and Administration); C201-206 (255 Chapter 2: Scoping Requirements); 301-302 (Chapter 3: Functional Performance Criteria); 401-413 (Chapter 4: Hardware); 501-504 (Chapter 5: Software); and 601-603 (Support Documentation and Services).

Legal Authority for 508 Standards:
Section 508 of the Rehabilitation Act of 1973 (hereafter, “Section 508”), as amended, 29 U.S.C. 794d, mandates that federal agencies “develop, procure, maintain, or use” ICT in a manner that ensures federal employees with disabilities have comparable access to and use of such information and data relative to other federal employees, unless doing so would impose an undue burden. The Rehabilitation Act also requires federal agencies to ensure that members of the public with disabilities have comparable access to publicly-available information and services unless doing so would impose an undue burden on the agency. In accordance with section 508(a)(2)(A), the Access Board must publish standards that define electronic and information technology along with the technical and functional performance criteria necessary for accessibility, and periodically review and amend the standards as appropriate. When the Access Board revises its existing 508 Standards (whether to keep up with technological changes or otherwise), the Rehabilitation Act mandates that, within six months, both the Federal Acquisition Regulatory Council (FAR Council) and federal agencies incorporate these revised standards into their respective acquisition regulations and procurement policies and directives. Thus, with respect to procurement-related matters, the Access Board's 508 Standards are not self-enforcing; rather, these standards become enforceable when adopted by the FAR Council and federal agencies.

Legal Authority for 255 Guidelines:
Section 255 of the Communications Act, 47 U.S.C. 255 (hereafter, “Section 255”), requires telecommunications equipment and services to be accessible to and usable by individuals with disabilities, where readily achievable. “Readily achievable” is defined in the statute as “easily accomplishable and able to be carried out without much difficulty or expense.” In determining whether an access feature is readily achievable, the Federal Communications Commission (FCC), which has exclusive authority over enforcement under Section 255, has directed telecommunications equipment manufacturers and service providers to weigh the nature and cost of that feature against the individual company's overall financial resources, taking into account such factors as the type, size, and nature of its business operation. Under Section 255, the Access Board is required to develop guidelines for the accessibility of telecommunications equipment and customer premises equipment in conjunction with the FCC and to review and update the guidelines periodically. The FCC is responsible for enforcing Section 255 and issuing implementing regulations; it is not bound to adopt the Access Board's guidelines as its own or to use them as minimum requirements.

Summary of Key Provisions

A. Proposed 508 Standards

The proposed standards replace the current product-based approach with a functionality-based approach. The proposed technical requirements, which are organized along the lines of ICT functionality, provide standards to ensure that covered hardware, software, electronic content, and support documentation and services are accessible to people with disabilities. In addition, the proposed standards include functional performance criteria, which are outcome-based provisions for cases in which the proposed technical requirements do not address one or more features of ICT. The four major changes in the proposed 508 Standards are:

•
Broad application of WCAG 2.0:
The proposed rule would incorporate by reference the Web Content Accessibility Guidelines (WCAG) 2.0, a voluntary consensus standard developed by ICT industry representatives and other experts. It would also make WCAG 2.0 Success Criteria applicable not only to content on the “World Wide Web” (hereafter, Web), but also to non-Web electronic documents and software (
e.g.,
word processing documents, portable document format files, and project management software). By applying a single set of requirements to Web sites, electronic documents, and software, this proposed provision would adapt the 508 Standards to reflect the newer multifunction technologies (
e.g.,
smartphones that have telecommunications functions, video cameras, and computer-like data processing capabilities) and address the accessibility challenges that these technologies pose for individuals with disabilities.

•
Delineation of covered electronic “content”:
The proposed rule would also specify that all types of public facing content, as well as eight enumerated categories of non-public facing content that communicate agency official business, would have to be accessible, with “content” encompassing all forms of electronic information and data. The existing standards require federal agencies to make electronic information and data accessible, but do not delineate clearly the scope of covered information and data; as a result, document accessibility has been inconsistent across federal

agencies. By focusing on public facing content and certain types of agency official communications that are not public facing, the proposed rule would bring needed clarity to the scope of electronic content covered by the 508 Standards and, thereby, help federal agencies make electronic content accessible more consistently.

•
Expanded interoperability requirements:
The existing standards require ICT to be compatible with assistive technology—that is, hardware or software that increases or maintains functional capabilities of individuals with disabilities (
e.g.,
screen magnifiers or refreshable braille displays). But, because this requirement has given rise to ambiguity in application, the proposed rule would provide more specificity about how operating systems, software development toolkits, and software applications should interact with assistive technology. These proposed requirements would allow assistive technology users to take full advantage of the functionalities that ICT products provide.

•
Requirement for RTT functionality:
The proposed standards would require real-time text (RTT) functionality wherever an ICT product provides real-time, two-way voice communication. RTT is defined in the proposed rule as text that is transmitted character by character as it is being typed. An RTT recipient can read a message while it is being written, without waiting for the message to be completed; this is different from other message technologies such as “short messaging service”, or SMS, which transmit the entire message only after typing is complete. This proposed requirement would have an impact on federal agencies as well as ICT providers, federal employees, and members of the public.

B. Proposed 255 Guidelines

Given the trend toward convergence of technologies and ICT networks, the Access Board is updating the 255 Guidelines at the same time that it is updating the 508 Standards. The existing guidelines include detailed requirements for the accessibility, usability, and compatibility of telecommunications equipment and customer premises equipment. For example, the guidelines require input, output, display, control, and mechanical functions to be accessible to individuals with disabilities. The compatibility requirements focus on the need for standard connectors, compatibility of controls with prosthetics, and TTY compatibility. The guidelines define “usable” as providing access to information about how to use a product, and direct that instructions, product information, documentation, and technical support for users with disabilities be functionally equivalent to that provided to individuals without disabilities. The proposed guidelines include many non-substantive revisions to the existing requirements for clarity along with a few important new provisions. Two notable proposed additions to the proposed 255 Guidelines are:

•
Requirement for RTT functionality:
Just as the proposed 508 Standards would require federal agencies to offer RTT functionality in certain ICT, the proposed 255 Guidelines would require the manufacturers of telecommunications equipment to provide RTT functionality wherever a telecommunications product provides real-time, two-way voice communication. This proposed requirement would allow people who are deaf or hard of hearing to have faster and more natural conversations than the current text-messaging functionality.

•
Application of WCAG 2.0 to electronic documents:
The proposed 255 Guidelines would preserve the current requirement that when a document is provided in a non-electronic format, alternate formats (such as large-print or braille) usable by individuals with vision impairments need to be provided. The proposed guidelines also would require documentation in electronic formats—including Web-based self-service support and electronic documents—to conform to all Level A and AA Success Criteria in WCAG 2.0 or ISO 14289-1 (PDF/UA-1). This proposal for accessible electronic support documentation is derived from the existing guidelines, but would newly require compliance with WCAG 2.0 or PDF/UA-1. This proposal is intended to address the problem that many online product (or support) documents for telecommunications equipment are inaccessible to individuals with visual impairments.

Summary of Preliminary Regulatory Analysis

Consistent with the obligation that federal agencies under Executive Orders 12866 and 13563 propose and adopt regulations only upon a reasoned determination that benefits justify costs, the proposed rule has been evaluated from a benefit-cost perspective in a preliminary regulatory impact analysis (Preliminary RIA) prepared by the Board's consulting economic firm. The focus of the Preliminary RIA is to define and, where possible, quantify and monetize the potential economic benefits and costs of the proposed 508 Standards and 255 Guidelines. We summarize its methodology and results below; a complete copy of this regulatory assessment is available on the Access Board's Web site (
www.access-board.gov
), as well as the federal government's online rulemaking portal (
www.regulations.gov
).

To estimate likely incremental compliance costs attributable to the proposed rule, the Preliminary RIA estimates, quantifies, and monetizes costs in the following broad areas: (1) Costs to federal agencies and contractors related to policy development, employee training, development of accessible ICT, evaluation of ICT, and creation or remediation electronic documents; and (2) costs to manufacturers of telecommunications equipment and customer premises equipment of ensuring that that their respective Web sites and electronic support documentation conform to accessibility standards, including WCAG 2.0.

On the benefits side, the Preliminary RIA estimates likely incremental benefits by monetizing the value of three categories of benefits expected to accrue from the proposed 508 Standards: (a) Increased productivity of federal employees with certain disabilities who are expected to benefit from improved ICT accessibility; (b) time saved by members of the public with certain disabilities when using more accessible federal Web sites; and (c) reduced phone calls to federal agencies as members of the public with certain disabilities shift their inquiries and transactions online due to improved accessibility of federal Web sites. The Preliminary RIA, for analytical purposes, defines the beneficiary population as persons with vision, hearing, and speech disabilities, as well as those with manipulation, reach, or strength limitations. The Preliminary RIA does not formally quantify or monetize benefits accruing from the proposed 255 Guidelines due to insufficient data and methodological constraints.

Table 1 below summarizes the results from the Preliminary RIA with respect to the likely monetized benefits and costs, on an annualized basis, from the proposed 508 Standards and 255 Guidelines. All monetized benefits and costs are incremental to the applicable baseline, and were estimated for a 10-year time horizon using discount rates of 7 and 3 percent.

Table 1—Annualized Value of Monetized Benefits and Costs Under the Proposed Rule, 2015-2024
[In 2015 dollars]

7%
discount rate
(in millions)

3%
discount rate
(in millions)

Monetized incremental benefits to federal agencies, members of the public with vision disabilities (under proposed 508 Standards)
$69.1
$67.5

Monetized incremental costs to federal agencies (under proposed 508 Standards)
$155.0
$146.8

Monetized incremental costs to telecommunications equipment manufacturers (under proposed 255 Guidelines)
$10.6
$9.8

While the Preliminary RIA monetizes likely incremental benefits and costs attributable to the proposed rule, this represents only part of the regulatory picture. Today, though ICT is now woven into the very fabric of everyday life, millions of Americans with disabilities often find themselves unable to use—or use effectively—computers, mobile devices, federal agency Web sites, or electronic content. The Board's existing standards and guidelines are greatly in need of a “refresh” to keep up with technological changes over the past fifteen years. The Board expects this proposed rule to be a major step toward ensuring that ICT is accessible to and usable by individuals with disabilities—both in the federal workplace and society generally. Indeed, much—if not most—of the significant benefits expected to accrue from the proposed rule are difficult if not impossible to quantify, including: Greater social equality, human dignity, and fairness. Each of these values is explicitly recognized by Executive Order 13563 as important qualitative considerations in regulatory analyses.

Moreover, American companies that manufacture telecommunications equipment and ICT-related products would likely derive significant benefits from the harmonized accessibility standards. Given the relative lack of existing national and globally-recognized standards for accessibility of mobile technologies, telecommunications equipment manufacturers would greatly benefit from harmonization of the 255 guidelines with consensus standards. Similar benefits would likely accrue more generally to all ICT-related products as a result of harmonization.

It is also equally important to note that some potentially substantial incremental costs arising from the proposed rule are not evaluated in the Preliminary RIA, either because such costs could not be quantified or monetized (due to lack of data or for other methodological reasons) or are inherently qualitative. The impact of the proposed 255 Guidelines on telecommunications equipment manufacturers is, as the Preliminary RIA notes, particularly difficult to quantify due to lack of cost data and a dynamic telecommunications marketplace. As a consequence, for example, the Preliminary RIA thus neither quantifies nor monetizes potential compliance costs related to the proposed requirement that ICT providing real-time, two-way voice communication support RTT functionality.

The Access Board welcomes comments on all aspects of the Preliminary RIA to improve the assumptions, methodology, and estimates of the incremental benefits and costs of the proposed rule. The full Preliminary RIA posted on the Board's Web site poses numerous regulatory assessment-related questions or areas for public comment, and interested parties are encouraged to review that document and provide responsive data and other information. In addition, the Board sets forth below—in the section providing a more in-depth discussion of the Preliminary RIA—several additional questions on which it seeks input. See Section VIII.A.6 (Regulatory Process Matters—Preliminary Regulatory Impact Analysis—Conclusion).

III. Statutory Background

Section 508 of the Rehabilitation Act of 1973, as amended (hereafter, “Section 508”), calls for the Access Board to issue and publish standards setting forth the technical and functional performance criteria necessary to implement the Act's accessibility requirements for electronic and information technology. The statute also provides that the Board shall periodically review and, as appropriate, amend the standards to reflect technological advances or changes in electronic and information technology. This proposed rule uses the term “508 Standards” to refer to the standards called for by the Rehabilitation Act.

Section 255 of the Communications Act of 1934, as amended (hereafter, “Section 255”), tasks the Access Board with the development of guidelines for accessibility of telecommunications equipment and customer premises equipment, and provides that the Board shall review and update the guidelines periodically. Note that reference is made here to “Section 255 of the Communications Act,” rather than the commonly used reference to “Section 255 of the Telecommunications Act of 1996” because the Telecommunications Act does not itself contain a section 255. Instead, the Telecommunications Act amended the Communications Act by adding a new section 255 to it. Therefore, for the sake of simplicity and accuracy, this proposed rule uses the term “255 Guidelines” to refer to the guidelines called for by the amended Communications Act.

As noted in the Summary above, this proposed rule seeks to revise and update both the 508 Standards and 255 Guidelines in a single rulemaking. The Access Board is taking this approach because we feel that the two sets of requirements, by virtue of their subject matter, are inextricably linked from a regulatory and policy perspective.

IV. Rulemaking History

A. Existing 508 Standards and 255 Guidelines (1998-2000)

We issued the 255 Guidelines in 1998, 63 FR 5608 (Feb. 3, 1998), and these are available on our Web site at
www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-telecommunications-act-guidelines/section-255-guidelines
. The Board's 508 Standards, issued in 2000, 65 FR 80500 (Dec. 21, 2000), are available at
www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-section-508-standards/section-508-standards
. They were codified in 36 CFR part 1193 and 36 CFR part 1194, respectively. In this preamble, all citations to 36 CFR part 1193 refer to the existing 255 Guidelines in force since 1998, while all citations to 36 CFR part 1194 refer to the existing 508 Standards in force since 2000.

The existing 508 Standards require federal agencies to ensure that persons

with disabilities—namely, federal employees with disabilities and members of the public with disabilities—have comparable access to, and use of, electronic and information technology (regardless of the type of medium) absent a showing of undue burden. See 36 CFR part 1194. Among other things, these standards: Define key terms (such as “electronic and information technology” and “undue burden”); establish technical requirements and functional performance criteria for covered information and technologies; require agencies to document undue burden determinations when procuring covered products; and mandate accessibility of support documentation and services. Generally speaking, the existing 508 Standards take a product-based regulatory approach in that technical requirements for electronic and information technology are grouped by product type: Software applications and operating systems; Web-based intranet and Internet information and applications; telecommunications products; self-contained, closed products; and desktop and portable computers.

The existing 255 Guidelines require manufacturers of telecommunications equipment and customer premises equipment to ensure that new and substantially upgraded existing equipment is accessible to, and usable by, individuals with disabilities when readily achievable. See 36 CFR part 1193. The existing guidelines, as with the 508 Standards, define key terms (such as “telecommunications equipment” and “readily achievable”) and establish technical requirements for covered equipment, software, and support documentation. These guidelines also require manufacturers of covered equipment to consider inclusion of individuals with disabilities in their respective processes for product design, testing, trials, or market research.

B. Advisory Committee and Final Report (2006-2008)

In the years following our initial promulgation of the 508 Standards and 255 Guidelines, technology continued to evolve at a rapid pace. Pursuant to our statutory mandate, the Board deemed it necessary and appropriate to review and update the 508 Standards and 255 Guidelines in order to make them consistent with one another and reflective of technological changes. The Board formed the Telecommunications and Electronic and Information Technology Advisory Committee (hereafter, “Advisory Committee”) in 2006 to review the existing 508 Standards and 255 Guidelines and recommend amendments. The Advisory Committee's forty-one members comprised a broad cross-section of stakeholders representing industry, disability groups, and government agencies. The Advisory Committee also included representatives from the European Commission, Canada, Australia, and Japan. The Advisory Committee recognized the importance of standardization across markets worldwide and coordinated its work with standard-setting bodies in the U.S. and abroad, such as the World Wide Web Consortium (W3C®), and with the European Commission. The Advisory Committee addressed a range of issues, including new or convergent technologies, market forces, and international harmonization.

On April 3, 2008, the Advisory Committee presented us with its report (hereafter, “TEITAC Report”) recommending amendments to the 508 Standards and 255 Guidelines. The TEITAC Report is available at
www.access-board.gov/teitac-report
.

C. First Advance Notice of Proposed Rulemaking (2010)

1. General

Based on the TEITAC Report, the Board developed an Advance Notice of Proposed Rulemaking in 2010 (2010 ANPRM) to update the 508 Standards as well as the 255 Guidelines. On the recommendation of the Advisory Committee, the Board used the phrase “Information and Communication Technology” (ICT) to collectively refer to the products addressed by the rules. A complete discussion of this proposed change is found in Section VI.B (Section-by-Section Analysis—508 Standards: Application and Scoping—E103), and Section VI.C (Section-by-Section Analysis—255 Guidelines: Application and Scoping—C103). The 2010 ANPRM was published in the
Federal Register
, 75 FR 13457 (March 22, 2010), and is available at
www.access-board.gov/ict2010anprm
.

2. Structure

The 2010 ANPRM began with two separate introductory chapters. “508 Chapter 1: Application and Administration,” contained provisions preceded by the letter “E,” and included scoping, application, and definition provisions particular to the 508 Standards. “255 Chapter 1: Application and Administration,” contained provisions preceded by the letter “C,” and included similar provisions particular to the 255 Guidelines. The 2010 ANPRM also included, in Chapter 2, a common set of functional performance criteria for the 508 Standards and the 255 Guidelines that required ICT to provide access to all functionality in at least one of each of ten specified modes. Chapter 3 contained technical requirements applicable to features of ICT found across a variety of platforms, formats, and media.

Chapters 4, 5, and 6 all contained technical requirements that were closely adapted from the Web Content Accessibility Guidelines (WCAG) 2.0 Success Criteria but rephrased as mandatory requirements. Chapter 4 addressed platforms, applications, interactive content, and applications. Chapter 5 covered access to electronic documents and common interactive elements found in content, and Chapter 6 addressed access to audio and visual content, as well as players of such content.

Chapter 7 addressed hardware aspects of ICT, such as standard connections and reach ranges. Chapter 8 addressed ICT with audio output functionality when that output is necessary to inform, alert, or transmit information or data. Chapter 9 addressed ICT supporting real-time simultaneous conversation in audio, text, or video formats and Chapter 10 covered product support documentation and services.

3. Hearings and General Comments

The Access Board held two public hearings on the 2010 ANPRM—March 2010 (San Diego, CA) and July 2010 (Washington, DC). We also received 384 written comments during the comment period. Comments came from industry, federal and state governments, foreign and domestic companies specializing in information technology, disability advocacy groups, manufacturers of hardware and software, trade associations, institutions of higher education, research and trade organizations, accessibility consultants, assistive technology industry and related organizations, and individuals.

In general, commenters agreed with our approach to addressing the accessibility of ICT through functionality rather than discrete product types. Commenters also expressed strong support for our efforts to update the 508 Standards and 255 Guidelines, as well as our decision to follow the Advisory Committee's recommendation to require harmonization with WCAG 2.0. However, many commenters expressed concern that the 2010 ANPRM was not user-friendly,
e.g.,
that it was too long (at close to 100 pages), organized in a

confusing manner, and suffered from some internal inconsistencies. For example, commenters noted confusion by virtue of the fact that some chapters focused on functional features of accessibility while others addressed specific types of technology, or that the meaning of “ICT” seemed to vary depending on the context of the specific chapter.

D. Second Advance Notice of Proposed Rulemaking (2011 ANPRM)

1. General

Upon reviewing the extensive and detailed comments on the 2010 ANPRM, the Board realized the need to reorganize the structure of the proposed rule. More importantly, we needed to obtain further public comment on major issues and harmonize with the European Commission's ICT standardization efforts that were already underway at that time. Accordingly, the Board issued a second ANPRM (2011 ANPRM) that, as discussed in detail below, differed significantly from the 2010 ANPRM in terms of both structure and content. The 2011 ANPRM was published in the
Federal Register
, 76 FR 76640 (Dec. 8, 2011), and is also available at
www.access-board.gov/ict2011anprm.

2. Structure

In response to public comments on the 2010 ANPRM that the length and organization of the document made it unwieldy, the Board consolidated and streamlined provisions into six chapters (from ten), consolidated advisories, and reduced the page count from close to 100 to less than 50. The Board also removed scoping and application language from the chapters containing technical provisions and relocated them to new chapters applicable to Section 508 (508 Chapters 1 and 2) and Section 255 (255 Chapters 1 and 2) respectively. We revised the overall structure of the functional performance criteria so that the provisions had parallel structure, and grouped technical requirements for similar functions together in the same chapter. To address inconsistencies in the 2010 ANPRM, where some chapters focused on features of products and others addressed specific types of products, the Board standardized its approach by removing references to types of products while focusing instead on specific features of products. We also removed specific proposed requirements relating to Web and non-Web content, documents and user applications, and referenced WCAG 2.0 instead.

3. Hearings and General Comments

Hearings were held in January 2012 in Washington, DC and in March 2012 in San Diego, CA. Additionally, ninety-one written comments were received in response to the 2011 ANPRM. Comments came from industry, federal and state governments, foreign and domestic companies specializing in information technology, disability advocacy groups, manufacturers of hardware and software, trade associations and trade organizations, institutions of higher education and research, accessibility consultants, assistive technology industry and related organizations, and individual stakeholders who did not identify with any of these groups.

In general, commenters continued to agree with our approach to address ICT accessibility by focusing on features, rather than discrete product types. Commenters supported the conciseness of the proposed provisions in the 2011 ANPRM, and asked for further streamlining where possible. Comments addressed a variety of other topics, which are discussed below in Section IV.E. (Rulemaking History—2010 and 2011 ANPRMs: Significant Issues), and Section V (Major Issues).

E. 2010 and 2011 ANPRMs: Significant Issues

In this section, the Board collectively reviews the principle issues from the 2010 ANPRM and 2011 ANPRM in consolidated fashion.

1. Evolving Approach to Covered Electronic Content

Nearly two decades have passed since promulgation of the existing 508 Standards. Since that time, the types of—and uses for—electronic documents and other content have grown tremendously. This growth, coupled with the fact that the existing standards do not clearly spell out the scope of covered electronic content, led to inconsistencies in accessibility of electronic data and information across federal agencies. One of the goals of this rulemaking is thus to provide updated standards for electronic content that clearly delineate the accessibility requirements applicable to electronic content.

In the 2010 ANPRM, the Board proposed that, when federal agencies communicate using electronic content, that content would be required to comply with the revised 508 Standards when “(a) an official communication by the agency or a representative of the agency to federal employees which contains information necessary for them to perform their job functions; or (b) an official communication by an agency or a representative of the agency to a member of the public, which is necessary for them to conduct official business with the agency as defined by the agency's mission.” Many commenters disagreed with this approach because, in their view, all agency communications would fall into one of the two categories, and therefore no content would be exempt. In addition, commenters feared that our approach would require each employee to be capable of creating accessible content for all of his or her own individual communications. According to the commenters, this, in turn, would require costly training without necessarily resulting in greater accessibility.

We responded to these concerns in the 2011 ANPRM by proposing that electronic content need be made accessible only if it both communicated official agency business to a federal employee or a member of the public and fell into one of nine specified categories: (1) Content that is public facing; (2) content that is broadly disseminated throughout an agency, including templates; (3) letters adjudicating any cause within the agency's jurisdiction; (4) internal or external program and policy announcements; (5) notices of benefits, program eligibility, and employment opportunities and decisions; (6) forms, questionnaires, and surveys; (7) emergency notifications; (8) formal acknowledgements and receipts; and (9) educational and training materials. This included all formats of official communications by agencies, including Web pages, postings on social media, and email. Our intent was to clarify what information and data would be required to be accessible without placing an undue burden on government communications and operations.

Commenters to the 2011 ANPRM generally supported this approach. However, one commenter expressed concern that limiting coverage of electronic content to certain specific categories could lead to a non-inclusive work environment for employees and that agencies would make accessible only that content covered by the 508 Standards to the exclusion of anything else. Some commenters recommended that the Board associate templates with forms in one category and differentiate that category from the category containing questionnaires and surveys. Several commenters—including federal agencies—found the language in the provision on content that was “broadly disseminated” to be vague and

overbroad, and requested that this provision be either revised or withdrawn.

Another key issue addressed in the Board's advance notices of proposed rulemaking was the scope of exceptions to covered content. In the 2010 ANPRM, the Board proposed an exception for content stored solely for archival purposes or retained solely to preserve the exact image of the original hard copy. We retained that exception in the 2011 ANPRM, but added a second exception for “works in progress and drafts that are not public facing and that are intended for limited internal distribution.”

Commenters to the 2011 ANPRM raised many questions as to how those exceptions would apply. For example, some commenters expressed confusion about the exception for archival materials. Many commenters viewed “archival” as referring to content preserved in agencies' internal information technology content management systems, rather than public records preservation generally, and asked us to clarify what the Board meant by the term. Other commenters expressed concern that otherwise accessible materials might be rendered inaccessible during the archiving process.

In addition to making significant revisions in the 2011 ANPRM to covered content under the proposed 508 Standards, the Board also amended our approach to content subject to the 255 Guidelines. We proposed that “electronic content integral to the use of ICT” covered by the 255 Guidelines must conform to Level A and Level AA Success Criteria and Conformance Requirements specified for Web pages in WCAG 2.0, as incorporated by reference in C102 (Referenced Standards). The Board received no comments on this provision in the 2011 ANPRM.

In this proposed rule, the Board clarifies areas of confusion and makes various other changes to the scope of covered electronic content. We discuss our approach in further detail in Section V.A (Major Issues—Electronic Content), Section VI.B (Section-by-Section Analysis—508 Standards: Application and Scoping—E205), and Section VI.C (Section-by-Section Analysis—Technical Requirements—C203).

2. Treatment of WCAG 2.0

The Access Board and the World Wide Web Consortium (W3C)—the leading international standards organization for the World Wide Web—share a rich history of collaboration on guidelines for Web site accessibility. The existing 508 Standards and WCAG 1.0 were under development around the same time period in the late 1990s; WCAG 1.0 was finalized in May 1999, and the existing 508 Standards shortly thereafter in December 2000. The existing 508 Standards, § 1194.22—which addresses “Web-based Intranet and Internet Information and Applications”—has two endnotes, the first of which notes the Board's view that eleven out of our sixteen provisions of the standards are consistent with Web Content Accessibility Guidelines (WCAG) 1.0 Priority 1 Checkpoints. The remaining five provisions in that section do not have close analogs to WCAG 1.0 Priority 1 checkpoints, but they strongly influenced the development of the next iteration of WCAG, WCAG 2.0.

As part of the 508 Standards refresh, the Advisory Committee recommended—and the Access Board agreed—that closer harmonization with WCAG 2.0 was necessary to promote greater accessibility. Consequently, in the 2010 ANPRM, the Board proposed to include most Level A and Level AA WCAG 2.0 Success Criteria. However, rather than using the text of relevant portions of WCAG 2.0 verbatim, the Board restated those Success Criteria in mandatory language thought to be better suited for a regulatory environment. Comments to the 2010 ANPRM identified three major problems with that approach. First, many expressed concern that rephrasing WCAG 2.0's Success Criteria would introduce discrepancies in, and fragmentation of, the 508 Standards. Second, other commenters feared that rephrasing of success criteria, rather than incorporating WCAG 2.0 by reference, would make dynamic linkages in the online version of WCAG 2.0 to important supplementary information less available to the reader. These commenters emphasized the usefulness of the online in-context hypertext links to robust guidance materials as aids for understanding and applying the WCAG 2.0 Success Criteria. Lastly, commenters found our division of provisions (including the many rephrased WCAG Success Criteria) into those respectively oriented towards either documents or software to be somewhat arbitrary and counterproductive.

In response to these comments, the Access Board substantially revised the approach to WCAG 2.0 in the 2011 ANPRM. We proposed to require all covered content to conform to WCAG 2.0, which would be incorporated by reference in the proposed 508 Standards.

Commenters generally voiced strong support for the Board's decision to incorporate by reference WCAG 2.0 and apply it to all types of covered ICT, rather than simply seeking harmonization between WCAG 2.0 and the proposed rule. While commenters expressed concern as to how closely WCAG 2.0 would apply to some types of content, they generally supported the concept of expanding the application of WCAG 2.0 to all types of Web and non-Web ICT. A few commenters, including representatives of the software industry, also suggested that the rule allow for compliance with any subsequent and, as yet unpublished, revisions to WCAG 2.0 by the W3C.

Some commenters, on the other hand, requested that the Board return to its previous approach in the 2010 ANPRM, rather than incorporate WCAG 2.0 by reference. Most of these commenters believed that this approach would make the Board's rule easier to use because the necessary text would be contained in a single document. Some of these commenters also asserted that the structure of WCAG 2.0 is confusing and makes it difficult to separate the normative and non-normative portions.

In this NPRM, the Board is retaining the Level A and Level AA Success Criteria and Conformance Requirements in WCAG 2.0 for all ICT subject to Sections 508 and 255, including documents and software. The Board also proposes, as in the 2011 ANPRM, to incorporate WCAG 2.0 by reference, rather than restating its requirements in the proposed rule. Incorporating the WCAG Success Criteria verbatim in the rule would be unhelpful because they are best understood within the context of the original source materials. WCAG 2.0 incorporates context-sensitive hypertext links to supporting advisory materials. The two core linked resources are Understanding WCAG 2.0 and Techniques for WCAG 2.0. The first provides background information, including discussion of the intention behind each of the success criteria. The second provides model sample code for conformance. The linked expository of documents, which is publicly available online free of charge, comprise a rich and informative source of detailed technical assistance and are updated regularly by standing working committees. These linked resources are not themselves requirements and agencies adopting WCAG 2.0 are not bound by them.

The Board cannot accept the suggestion of software industry representatives that the proposed rule permit compliance with any follow-on versions of WCAG 2.0. Federal agencies cannot “dynamically” incorporate by reference future editions of consensus

standards.
1

Such action is legally prohibited since it would, among other things, unlawfully delegate the government's regulatory authority to standards development organizations, as well as bypass rulemaking requirements (which would typically include a public notice‐and‐comment period). Federal agencies are required to identify the particular version of consensus standards incorporated by reference in a regulation. When an updated edition of a consensus standard is published, the agency must revise its regulation if it seeks to incorporate any of the new material. Nevertheless, the Access Board plans to remain abreast of updates to voluntary consensus standards bearing on ICT, and will consider incorporating them into future rulemakings, as appropriate.

1
See,
e.g.,
1 CFR 51.1(f) (2014) (“Incorporation by reference of a publication is limited to the edition of the publication that is approved [by the Office of Federal Register]. Future amendments or revisions of the publication are not included.”); Office of Mgmt. & Budget, Exec. Office of the President, OMB Circular A-119, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities (1998); see also Nat'l Archives & Records Admin., Federal Register Document Drafting Handbook, Ch. 6 (April 2014 Revision).

We discuss incorporation of WCAG 2.0 in further detail below in Section V.B (Major Issues—WCAG 2.0 Incorporation by Reference), Section VI.B (Section-by-Section Analysis—508 Standards: Application and Scoping—E205 and E207.2), and Section VI.C (Section-by-Section Analysis—255 Guidelines: Application and Scoping—C203 and C205.2).

3. Relationship Between Functional Performance Criteria and Technical Provisions

Over the years, agencies and other stakeholders had expressed confusion concerning the interaction between the technical requirements and functional performance criteria in the existing 508 Standards. To address this confusion, in the 2010 ANPRM, the Board proposed language to clarify that ICT may be deemed accessible if satisfying all applicable technical requirements, irrespective of whether the functional performance criteria had been met. In other words, the Board proposed that the technical requirements took precedence over the functional performance criteria in the sense that agencies should look first to applicable technical provisions, and only turn to the functional performance criteria when such requirements did not fully address the technology at issue. Commenters objected to this approach, citing the concern that ICT procurements satisfying only the technical requirements would not necessarily ensure sufficient access to individuals with disabilities.

We responded to this concern by proposing in the 2011 ANPRM that ICT be required to conform to the functional performance criteria in every case, even when technical provisions were met. We also proposed to use the functional performance criteria (as did the 2010 ANPRM) to evaluate equivalent facilitation. That is, a covered entity would have the option of applying the concept of equivalent facilitation in order to achieve conformance with the intent of the technical requirements, provided that the alternative afforded individuals with disabilities substantially equivalent or greater accessibility and usability than would result from compliance with the technical requirements.

Some commenters, such as those representing federal agencies, the disability community, and other interested parties applauded this approach. Other commenters representing industry objected, noting that functional performance criteria are subjective and cannot be tested objectively. Industry commenters stated that they could not guarantee that the functional performance criteria had been met unless they controlled all the components of the end-to-end solution.

In this NPRM, the Board is not proposing that the functional performance criteria apply in every case. However, the Board does propose application of the functional performance criteria (with some modifications) to determine equivalent facilitation (E101.2 and C101.2), and to assess accessibility when technical provisions do not address one or more features of ICT. The Board discusses this issue in further detail below in Section V.C (Major Issues—Functional Performance Criteria), Section VI.B (Section-by-Section Analysis—508 Standards: Application and Scoping—E203 and E204), and Section VI.C (Section-by-Section Analysis—255 Guidelines: Application and Scoping—C202).

4. Coverage of Real-Time Text

As noted previously, the existing 508 Standards and 255 Guidelines were promulgated nearly fifteen years ago. At that time, TTYs were the most commonly available text-based system for communicating within a voice communication system. Since then, technology has greatly advanced to the point where, in addition to TTYs, multiple text-based means of communication are available in the marketplace. One such emerging means of communication is real-time text technology. RTT technology provides the ability to communicate using text messages that are transmitted in near real-time as each character is typed, rather than as a block of text after the entire message is completed. RTT is important as an equivalent alternative to voice communications for persons who are deaf, or who have limited hearing or speech impairments. It allows the recipient to read the sender's text as soon as it is entered, thus making RTT more conversational and interactive, in a manner similar to a telephone conversation. This also makes RTT particularly useful in an emergency situation when speed and accuracy of a message—or even a partial message—are critical.
2

2
Pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010, the FCC formed an Emergency Access Advisory Committee. In January 2012, the committee issued an “Emergency Access Advisory Committee (EAAC) Report and Recommendations.” In the report, the committee discussed a number of policy and technical recommendations. These recommendations cover both interim and future action in Emergency Communications (see
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-312161A1.doc
). In Appendix C to the report, the committee recommended that terminals offering real-time text conversation support ITU-T Recommendation T.140 and that text conversation be provided according to RFC 4103.

The Advisory Committee examined real-time text technology and recommended that the Board update the 508 Standards and 255 Guidelines to include specifications for RTT. More specifically, the Advisory Committee recommended that, when hardware or software provides real-time voice conversation functionality, it must provide at least one means of RTT communication. See TEITAC Report, Part 6, Subpt. C, Rec. 6-A. With respect to interoperability (
i.e.,
operating outside a closed network), the Committee had two recommendations. First, the Advisory Committee recommended use of the TIA 825-A (Baudot) standard when ICT interfaces with the publicly switched telephone network (PSTN). Second, when ICT interoperated with VoIP products or systems using Session Initiation Protocol (SIP), the Advisory Committee did not recommend a specific standard, noting that there were several possible standards at that time (April 2008), such as RFC 4103, TIA 1001, and MSRP (RFC 4975). Id.

In keeping with the Advisory Committee's recommendation, the Board proposed in the 2010 ANPRM, to require ICT providing real-time voice communication to support RTT

functionality. The Board also proposed prescriptive standards for RTT (
e.g.,
transmission delay, error rates), as well as interoperability requirements. For interoperability with PSTN, the Board proposed (as did the Advisory Committee) use of the TIA 825-A (Baudot) standard. For ICT interoperating with VoIP products or systems using SIP, the Board did not propose a specific standard; instead, the Board proposed that such products or systems support transmission of RTT conforming to a “commonly used cross-manufacturer, non-proprietary standard.” The Board considered referencing RFC 4103, but elected not to do so because, at that time, it was not thought to be a referenceable standard.

Commenters responding to the RTT-related proposals in the 2010 ANPRM generally supported RTT, but offered mixed views on the Board's proposed technical specifications. Commenters representing people with disabilities strongly supported inclusion of RTT functionality requirements in the proposed rule. They emphasized, among other things, that RTT represented a major advance by allowing persons with hearing- or speech-related disabilities to communicate through real-time text on mainstream devices, rather than having to use special and expensive devices (such as TTYs). They were critical, however, of the Board's decision not to incorporate a specific VoIP-related interoperability standard. Commenters representing people with disabilities (and also academia) urged the Board to adopt RFC 4103 for RTT interoperating with VoIP using SIP, and provided information to support its use as a referenceable standard. Commenters from industry, on the other hand, encouraged the Board to take a cautious approach to RTT. They believed that, while RTT technology held promise as a major improvement in text communication (particularly in emergency situations), it was not sufficiently mature at that time to warrant adoption of a particular interoperability standard—including RFC 4103—for Internet-based calls. Commenters also objected to the proposed character and transmission delay rates as being overly prescriptive, thus potentially restricting the development of future technologies. (No commenters took issue with the Board's proposal to incorporate TIA 825-A as the standard for interoperability with PSTN.)

Based on these comments, in the 2011 ANPRM, the Board proposed to retain the references to the TIA 825-A standard for TTY signals on the PSTN, and to add a requirement for conformance with the RFC 4103 standard for VoIP products or systems using SIP. We did not retain the provisions specifying character and transmission delay rates. Overall, commenters largely supported the Board's revisions to RTT-related requirements in the 2011 ANPRM. However, several commenters representing industry and a local government agency asserted that RTT was not sufficiently mature or deployed widely enough to be useful. Some commenters also identified other standards aside from RFC 4103 that were currently in use (
e.g.,
XMPP and XEP-0301) and could serve to facilitate RTT for Internet-based calls.

In this NPRM, the Board proposes to require that, where ICT provides real-time, two-way voice communication, such ICT must also support RTT functionality. Proposed 410.6 would require features capable of text generation to be compatible with real-time voice communication used on a network. ICT would be required to interoperate either within its own closed system or outside a network. For example, a closed communication system, such as within a federal agency, would be required to interoperate with either the publicly switched telephone network (PSTN) or Voice over Internet Protocol (VoIP) products or systems to support the transmission of real-time text. The Board believes that RTT is sufficiently mature as a technology (and has sufficiently proliferated in the current ICT marketplace) to warrant coverage in the proposed rule. For example, real-time instant messaging programs—such as Yahoo!®Messenger and AOL Instant Messenger's “Real-Time IM” —have, in the past, used proprietary protocols that were very similar to SIP.

Where federal agencies provide their employees with smartphones or similar technology, this NPRM would require such ICT to have the potential to communicate using RTT. The Board does not, however, thereby intend to require that all phone users (with or without disabilities) communicate using RTT in all circumstances. Similar to several other proposed accessibility features in the proposed rule, RTT must only be enabled and used when needed to ensure comparable access and use of ICT by persons with hearing disabilities. For example, federal managers will need to make clear that, when deaf or hard-of-hearing employees with agency-provided smartphones use RTT, coworkers without disabilities using agency smartphones will also need the RTT feature on their respective phones enabled. Such an approach ensures that communications among deaf and hearing coworkers are equally effective as voice conversations among employees who do not have hearing impairments. Employees who do not need to communicate using RTT would otherwise be able to disable or ignore this feature.

The Board does not suggest that other forms of electronic communication—text or email, for example—would not be used by deaf employees and their colleagues. However, RTT offers many of the same benefits as voice communication. For example, a deaf attorney may need to seek the advice of his supervisor or colleagues during a break in a sensitive negotiation. Given the urgency and time-sensitive nature of the communications between employees, the deaf employee may request that his colleagues make themselves available during the negotiation by enabling RTT on their phones.

The Board did not consider proposing that agencies be permitted to provide RTT-enabled phones to employees only upon request. We did not consider this approach for two significant reasons. First, making accessible ICT available only upon request would run counter to Section 508's basic premise that information and data must be accessible to all employees without special treatment or the necessity for individualized treatment. Permitting issuance of RTT-enabled smartphones only when requested or deemed needed would be no different than permitting agencies to procure inaccessible ICT, such as a copy machine, where they have not identified a need for the accessible features among current staff. Second, while a proposal permitting agencies to issue non-RTT smartphones absent a special request for RTT features might modestly reduce an agency's ICT costs (to the extent, if any, that the purchase cost of RTT-enabled smartphones exceeds the cost of smartphones without this feature) and allow agencies to take user preferences regarding RTT into account, such an alternative would erode the proposed rule's benefits because employees with disabilities who need RTT would not be able to communicate with coworkers who are using government-issued, non-RTT smartphones.

Question 1.
To realize the full potential benefits of the Section 508 proposal to require RTT functionality wherever an ICT product provides real-time, two-way voice communication, federal managers would need to direct their employees to keep the RTT features on their phones enabled when needed to accommodate employees with

disabilities who use RTT, and federal employees would need to follow such directives. How would keeping RTT enabled on an “as needed” basis affect federal employees' use of texting? For example, would it cause them to substitute texting with other methods of communication? How can the Board analyze and quantify such effects?

Question 2.
The benefits of the RTT proposal under Section 255 are dependent upon the extent RTT features would be enabled and used by the public. The public would not be required to use or keep the RTT features on their phones enabled. Is there available information regarding the extent the public would use RTT features if they were available on their phones? Would use of RTT be different for people with and without disabilities?

In terms of RTT standards, the Board is proposing to require that ICT interoperating with VoIP products using SIP must support the transmission of RTT that conforms to RFC 4103 (RTP Payload for Text Conversion (2005)). In the Major Issues section, the Board also seeks comment on whether additional standards for real-time text, which are in the process of being finalized (such as XEP-0301), should be referenced. See Section V.D, Question 8. We discuss RTT-related issues in further detail below in Section V.D (Major Issues—Real-Time Text), and Section VI.D (Section-by-Section Analysis—Technical Requirements and Functional Performance Criteria—section 410.6).

5. Interoperability Requirements for Assistive Technology

Assistive technology (AT) is hardware or software used to increase, maintain, or improve the functional capabilities of individuals with disabilities. Examples of assistive technology commonly used with computers include: Screen readers, screen magnification software, specialized keyboards, refreshable braille displays, and voice recognition software. Assistive technology provides access beyond that offered by so-called “mainstream” hardware or software.

Compatibility with assistive technology is a foundational concept common to the existing 508 Standards and 255 Guidelines. ICT and assistive technologies must generally work together to provide users with necessary interface functions and features. The existing 508 Standards include general requirements for ICT to be compatible with assistive technology. Section 1194.21(b) requires that applications not disrupt or disable activated features of other products that are identified as accessibility features where those features are developed and documented according to industry standards. Additionally, this section requires that applications not disrupt or disable activated features of any operating systems that are identified as accessibility features. Section 1194.21(b) is directed only to applications, and does not require assistive technology to be compatible with other assistive technology. Section 1194.21(d), moreover, obligates mainstream software to provide “sufficient information” about its user interface elements to assistive technology.

The existing 255 Guidelines, though taking a slightly different tact, also require mainstream products to be compatible with assistive technologies. Under these guidelines, telecommunications equipment must be compatible with “peripheral devices and specialized premises equipment commonly used by individuals with disabilities to achieve accessibility.” 36 CFR 1193.51. Compatibility is specified by provisions requiring: External access to controls and information needed for product operation, connection points for external audio processing devices, compatibility of controls with prosthetic devices, and TTY connectability and compatibility.

The existing 508 Standards and 255 Guidelines are, however, equally silent concerning whether (or how) their requirements apply to assistive technology. That is, while these standards and guidelines require ICT to interoperate with assistive technology, they do not directly regulate assistive technology. Over the years, this silence in the 508 Standards has led to confusion. We have thus viewed coverage of assistive technology as a key issue throughout the process of updating the 508 Standards and 255 Guidelines.

The Advisory Committee, when addressing assistive technology, offered several perspectives. First, to improve ICT-AT compatibility, the committee recommended updated—and more comprehensive—technical standards that require mainstream computer operating systems and software with user interfaces to “expose” (
i.e.,
make available at the underlying program level) accessibility information that facilitates use of assistive technology. For example, screen reading and voice recognition software may be used to emulate, respectively, the physical click of a mouse button or the keystrokes from a hardware keyboard. These ICT interoperability requirements were carefully crafted among the various stakeholders on the committee, as well as harmonized with an international consensus standard for software accessibility (ISO 9241-171 Ergonomics of human-system interaction—Part 171: Guidance on software accessibility (2008)). See TEITAC Report, Part 6, Subpt. C, Recs. 3-V & 3-U. Second, the committee debated—though could not reach consensus on—a recommendation obligating assistive technology to use (as applicable) the standardized set of accessibility information provided by mainstream operating systems and software, rather than taking customized approaches. See TEITAC Report, Part 7, Subpt. C, Rec. 3-VV.

In the 2010 and 2011 ANPRMs, which drew heavily from the TEITAC Report, the Board took similar approaches to assistive technology. These ANPRMs largely adopted the committee's recommended set of updated technical standards governing the program-level accessibility information mainstream operating systems and software must make available to assistive technology. The Board also proposed to require assistive technology to use this accessibility information to achieve interoperability. Commenters generally applauded the Board's proposed refresh of the interoperability requirements for mainstream operating systems and software, and viewed these requirements as a big step forward. Assistive technology vendors and trade organizations, however, uniformly objected to the imposition of requirements on assistive technology. They expressed a need to be wholly unconstrained to best serve consumers. They also expressed concern that accessibility services varied widely from platform to platform, and were often insufficient to support necessary features of their assistive technology products. All other commenter groups—including individuals with disabilities and the mainstream IT industry—advocated maintaining the minimal requirements for assistive technology included in the ANPRMs.

In this NPRM, the Board proposes to retain, with minimal changes, the technical interoperability requirements for mainstream operating systems and software from the prior ANPRMs. The Board also found commenters' arguments for inclusion of minimal requirements for assistive technology to be compelling. Accordingly, the Board has also retained the proposal requiring assistive technology to use the basic set of accessibility information provided by operating systems and software to achieve interoperability. We discuss these issues in further detail below in Section V.E (Major Issues—Assistive Technology), and Section VI.D (Section-by-Section Analysis—Functional

Performance Criteria and Technical Requirements—502 and 401)

6. Modifications to the Functional Performance Criterion for Limited Vision

In order to ensure that ICT meets the needs of a wider range of users, the Board proposed in the 2010 ANPRM to revise the functional performance criterion for limited vision. The existing criterion specifies that ICT providing a visual mode of operation must furnish at least one accessible mode that accommodates visual acuity up to 20/70. The Board proposed to increase the covered acuity range to 20/200 (or a field of vision less than 20 degrees)—which is a common legal definition of blindness—to afford more individuals with disabilities the option of a visual mode of operation. Organizations representing persons with disabilities disagreed with the visual acuity proposed requirement, stating that it did not sufficiently address the needs of users with severe low vision. Industry groups suggested that the proposed visual acuity criterion contradicted several technical requirements. These commenters also indicated that our approach did not address features that could improve accessibility for persons with low vision, and were critical of the limitation that only one feature had to be provided for each mode of operation.

In response to these comments, in the 2011 ANPRM, the Access Board dispensed with specified measurements of visual acuity and relied instead on a functional approach reflective of the needs of users with low vision. We proposed that, when ICT provides a visual mode of operation, it must also provide at least one mode of operation that magnifies, one mode that reduces the field of vision, and one mode that allows user control of contrast. These modes would need to be supplied directly in the same ICT or through compatible assistive technology. Commenters to the 2011 ANPRM strongly approved of our approach to functional performance criteria for limited vision.

Accordingly, the Board proposes to retain this approach to functional performance criteria for limited vision in this propose rule. We discuss the issue in further detail in Section VI.B (Section-by-Section Analysis—Section 508 Application and Scoping—E203), Section VI.C (Section-by-Section Analysis—255 Guidelines Application and Scoping—C201.3), and Section VI.D (Section-by-Section Analysis—Functional Performance Criteria and Technical Requirements—302.2).

7. Definition and Coverage of Technology with “Closed Functionality”

In its TEITAC Report, the Advisory Committee recommended that the Board make a nomenclature change to “closed functionality” from the existing term “self-contained, closed products” to better reflect a regulatory approach to ICT based on functionality, rather than type of product. The Advisory Committee observed that, due to technological changes since the promulgation of the existing standards and guidelines, some formerly “closed” product types were now open, while some formerly open product types were now closed—frequently by policy, rather than technological constraint. See TEITAC Report, Part 4, section 4.2. It suggested that when the functionality of a technology product is closed for any reason, including policy or technical limitations, then such product should be treated as having closed functionality.

In the 2010 ANPRM, the Board followed the Advisory Committee's recommendation and proposed to substitute the term “closed functionality” for “self-contained, closed products,” as used in the existing 508 Standards. See 36 CFR 1194.4. While both terms refer to ICT with characteristics that limit its functionality, the term “closed functionality”—in the Board's view—better describes situations where the ICT is locked down by policy, rather than design. This may occur, for example, when an agency provides computers with core configurations that cannot be changed or adjusted by a user. We proposed permitting ICT to have closed functionality; however, such ICT still would need to be accessible to and usable by individuals with disabilities without assistive technology. Commenters did not object to the new terminology of “closed functionality” but asked for more detail and clarity in the applicable standards.

In the 2011 ANPRM, the Access Board proposed specific requirements for ICT with closed functionality to ensure accessibility to individuals with disabilities, which included a provision requiring ICT with closed functionality to be speech-output enabled. The term “speech-output enabled” means that the ICT can transmit speech output. These proposed requirements were derived from the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines (ADA and ABA Accessibility Guidelines), 36 CFR Part 1191, Appendix D, section 707.5 Speech Output.

Commenters to the 2011 ANPRM generally supported our proposed requirement for “closed functionality,” and the Board proposes to retain it in this proposed rule. We discuss the issue further in detail below in Section VI.D (Section-by-Section Analysis—Functional Performance Criteria and Technical Requirements—section 402).

8. Revisions to Exceptions Under 508 Standards

In the 2010 ANPRM, the Board reorganized the exceptions in the existing 508 Standards and recommended deleting three others that were unnecessary or had led to confusion. The three exceptions proposed for deletion were: § 1194.3(c) (assistive technology at federal employees' workstations); § 1194.3(d) (access to agency-owned ICT in public locations); and § 1194.3(f) (ICT equipment in maintenance spaces or closets). By proposing deletion of these three exceptions, the Board intended only administrative changes to clarify the 508 Standards; there was no intent to narrow their scope or application.

First, with respect to § 1194.3(c), which provides that assistive technology need not be supplied at all federal employees' workstations, the Board proposed its deletion because, in essence, it provided an exception where none was needed, and thus led to confusion. There is no general rule in the existing 508 Standards that agencies provide assistive technology at all employee workstations; rather, these standards merely require compatibility with assistive technology when ICT is not directly accessible.

Second, the Board proposed deletion of § 1194.3(d) because it conveys the impression that the 508 Standards govern the locations where ICT must be made available to the public. The 508 Standards do not, in any way, control where ICT is located. Therefore, the exception was unnecessary.

Third, the Board proposed to delete the exception in 1194.3(f) for ICT equipment located in maintenance spaces or closets frequented only by service personnel for “maintenance, repair, and occasional monitoring of equipment.” We reasoned that, since maintenance spaces or closets are already exempted from accessibility requirements under section F203.6 of the Architectural Barriers Act (ABA) Standards, there was no need for a similar exception in the 508 Standards.

Commenters' views on the proposed deletion of these three exceptions were mixed. On the one hand, most commenters supported removal of the exceptions pertaining to employee

workstations and public availability of agency-owned ICT. On the other hand, however, many commenters objected to our proposed removal of the exception for ICT located in maintenance spaces since there are still many functions—particularly with respect to maintenance, repair, and monitoring—that, in the commenters' view, could only be performed in maintenance spaces. In response to these comments, the Board has retained the exception for maintenance spaces in this NPRM, but proposes to limit its application to situations in which the controls for ICT functions are located in spaces that are frequented only by service personnel. This is consistent with the ADA and ABA Accessibility Guidelines, which exempt such spaces from accessibility requirements. However, where the functions of ICT located in maintenance spaces can be controlled remotely, this exception would not apply to such remote functions. These remote functions would still need to comply with applicable 508 Standards.

Lastly, in the 2010 ANPRM, the Access Board proposed to revise and relocate the exception in § 1194.3(b), which exempts ICT acquired by a contractor that is “incidental to a contract” from compliance with 508 Standards. Specifically, the Board proposed deleting the phrase “incidental to a contract” and relocating the exception to a new section relating to federal contracts. We did so in an effort to streamline and clarify the text of this exception. Commenters criticized this approach as confusing, particularly since the phrase “incidental to a contract” is a well-established term within the federal procurement community—a group that would likely be significantly impacted by the provision. Consequently, in the 2011 ANPRM, the Board proposed to restore the exception in § 1194.3(b) to its original language. We retain this approach in this NRPM, and thereby propose to exempt ICT acquired by a federal contractor that is “incidental to a contract” from compliance with the 508 Standards.

We discuss exception issues in further detail below in Section VI.B (Section-by-Section—508 Standards: Application and Scoping—E202.3 and E202.4).

9. Broadening of Documentation Requirement for Undue Burden Exception

Section 1194.2(a)(2) of the existing 508 Standards requires agencies to provide supporting documentation when determining that procurement of a compliant product would impose an undue burden. In the 2010 ANPRM, the Access Board proposed to broaden the undue burden documentation requirement so that it applied not only to ICT procurement, but also to other situations in which the 508 Standards applied—namely, the development, maintenance, or use of ICT. We did not receive any comments directly related to this approach, but did receive a few comments requesting clarification of the factors to be addressed in the determination of undue burden. In the 2011 ANPRM, the Board retained the broadened scope of the undue burden documentation requirement, but clarified the factors to be applied in the undue burden calculus. We proposed that an agency would be required to consider the extent to which conformance would impose significant difficulty or expense in light of the resources available to the program or component for which the ICT is being procured, developed, maintained or used. Commenters generally supported this approach.

In this NPRM, in proposed E202.5.2, the Board retains the undue burden documentation requirement as proposed in the 2011 ANPRM. This proposed provision is discussed in detail below in Section VI.B (Section-by-Section Analysis—508 Standards: Application and Scoping—E202.5.2).

F. Harmonization With European Activities

1. History

In 2006, as noted above, the Access Board convened a Telecommunications and Electronic and Information Technology Advisory Committee to review and update the existing standards and guidelines. The Advisory Committee met from 2006 to 2008. Four of the forty-one members of the Advisory Committee were international stakeholders: the European Commission, Canada, Australia, and Japan. Among other issues, the Advisory Committee addressed harmonization of standards across markets and worked closely with standard-setting bodies in the United States and abroad. The Advisory Committee issued its final report in 2008.

While the Access Board was in the process of updating its existing 508 Standards and 255 Guidelines, a similar process began in Europe to create the first European set of ICT accessibility standards. As a result of the 2005 EU-US Economic Initiative, the Access Board and the European Commission began to work closely on the issue of Information and Communications Technology standards (See:
http://trade.ec.europa.eu/doclib/docs/2006/june/tradoc_127643.pdf
).

In 2005, the European Commission released Mandate 376, “Standardisation Mandate to CEN, CENELEC, and ETSI in Support of European Accessibility Requirements for Public Procurement of Products and Services in the ICT Domain” (
http://www.ictsb.org/Working_Groups/DATSCG/Documents/M376.pdf
). The Mandate required the three European standards organizations—European Committee for Standardization (CEN), European Committee for Electrotechnical Standardization (CENELEC) and European Telecommunications Standards Institute (ETSI)—to: inventory European and international accessibility requirements; provide an assessment of suitable testing and conformity schemes; and, develop a European accessibility standard for ICT products and services along with guidance and support material for public procurements including an online toolkit.

In 2010, the Board released an ANPRM based on the 2008 TEITAC Report. We then published a second ANPRM in 2011 and took notice of the standardization work going on in Europe at the time, stating:

[T]he Board is interested in harmonizing with standards efforts around the world in a timely way. Accordingly, the Board is now releasing this second Advance Notice of Proposed Rulemaking (2011 ANPRM) to seek further public comment on specific questions and to harmonize with contemporaneous standardization efforts underway by the European Commission.

In February 2013, the European Commission published its draft standard EN 301 549 V1.0.0 (2013-02), “Accessibility requirements for public procurement of ICT products and services in Europe” (
http://www.etsi.org/deliver/etsi_en/301500_301599/301549/01.00.00_20/en_301549v010000c.pdf
). The vote on the standard was completed in February 2014. The European Standard has been formally adopted by all three European standards organizations—CEN, CENELEC, and ETSI. The standards are now available to the target audience, government officials, who may use the standards as technical specifications or award criteria in public procurements of ICT products and services. The standard harmonizes and facilitates the public procurement of accessible ICT products and services within Europe. More information is available at:
http://www.mandate376.eu/

2. Comparison of Proposed Rule With EN 301 549 Standard

a. General Comparison: Approach, Terminology and Organization

In this NPRM, the Board makes several proposals that are similar to those in the most recently published EN 301 549. Both the proposed rule and EN 301 549 address the functions of technology, rather than categories of technologies. Similarly, both offer technical requirements and functional performance criteria for accessible ICT. For example, our use of the phrase “information and communication technology” (ICT) in this NRPM, as a replacement of the existing term “electronic and information technology,” originates in the common usage of ICT throughout Europe and the rest of the world. Moreover, both documents are organized in similar ways, in that they both have initial scoping and definitions chapters, followed by separate chapters containing technical requirements and functional performance criteria.

Organizationally, the documents differ in several respects. These general differences are outlined in Table 2 below:

Table 2—Formatting Differences Between the NPRM and EN 301 549

Differences
ICT NPRM (2014)
EN 301 549 V1.1.1 (2014-02)

Number of chapters.
Note:
EN 301 549 breaks out several sections as separate chapters which are combined in the ICT NPRM

6
Chapter 1—Application and Administration

Chapter 2—Scoping
Requirements
Chapter 3—Functional Performance Criteria

13.
Chapter 2—References.
Chapter 3—Definitions and Abbreviations.
Chapter 1—Scope.
Chapter 10—Documents.
Chapter 4—Functional Performance Criteria.

Chapter 4—Hardware
Chapter 5—Generic Requirements (Biometrics, volume control, receipts and tickets, closed functionality, assistive technology).

Chapter 6—ICT with two way voice communications.

Chapter 7—ICT with video capabilities.

Chapter 8—Hardware.

Chapter 5—Software
Chapter 9—Web content.

Chapter 11—Non-Web software.

Chapter 6—Support Documentation and Services
Chapter 12—Documentation and support services.

Unique chapters
No comparable chapter
13—Relay and Emergency Services.

• Incorporated by reference (Sections E207.2 and C205.2)
Annex A—Copy of WCAG 2.0.

• Similar comparisons are found in the TEITAC Report
Annex B—Charts showing relationships between requirements and functional performance criteria.

• Not within the scope of Section 508 or Section 255; Section 508 compliance is determined by each federal agency
Annex C—Determination of Compliance.

• Not within the scope of Section 508 or Section 255

• Most similar to “303 Changes in Level” from the 2010 ADA Standards for Accessible Design

Section 8.3.2 Clear floor space.
Section 8.3.2.1 Change in level.
Section 8.3.2.2 Operating area.

Differing treatment of similar concepts
Section 410.6 Real-Time Text Functionality Discussed more fully
Section 6.3 Real-time text (RTT) functionality Discussed more fully.

410.8 Video Communication Discussed more fully
6.6 Video Communication Discussed more fully.

b. Specific Examples: Differing Treatment of Similar Concepts

Real-Time Text Functionality

In this NPRM, the Board proposes that where ICT provides real-time voice communication, it must also support real-time text (RTT) functionality, as described in 410.6. Most significantly, the Board proposes to require that where ICT interoperates with Voice over Internet Protocol (VoIP) products using Session Initiation Protocol (SIP), it must support the transmission of RTT that conforms to RFC 4103 (RTP Payload for Text Conversion (2005)). In the Major Issues section, the Board asks whether additional standards for real-time text, which are in the process of being finalized (such as XEP-0301), should also be referenced. See Section V.D, Question 8. The proposed rule limits the approach to RTT by proposing to only incorporate by reference a maximum of two standards for RTT interoperating with VoIP.

In contrast, EN 301 549 allows the use of multiple standards for RTT. In addition to referencing RFC 4103 (section 6.3.3(b)), it permits the use of four other standards and an unspecified “common specification” for RTT exchange. The only criterion in the common specification is that it must indicate a method for indicating loss or corruption of characters. For a further discussion of RTT functionality, see Section V.D (Major Issues—Real-Time Text) below.

We are not proposing to adopt the other four standards referenced by EN 301 549 because they are not applicable to the type of technology used in the United States. Just as mobile phones are not directly compatible between the United States and Europe (
i.e.,
CDMA phone systems versus GSM (Global System Mobile)), portions of the four standards referenced in EN 301 549 are simply not relevant in the U.S. market, and there are no indications that they

will have domestic relevance in the near future.

The standards referenced by EN 301 549 address more than just real-time text functionality. Some are quite broad and address several communications features, such as video speed and accuracy. One example of such a standard is ETSI TS 126 114 (Universal Mobile Telecommunications System (UMTS)) which covers voice, video, and data transmission rates and speeds. This standard supports an approach to communication known as “total communication.” We are not proposing to adopt this approach. In the 2010 ANPRM, the Board proposed transmission accuracy rates and speeds for video, text and voice data, based on recommendations from the Advisory Committee. In response, we received numerous comments questioning the accuracy of the proposed rates, the sources for the proposals and the research underlying the proposed rates. Consequently, the Board removed those proposals in the 2011 ANPRM.

Question 3.
We are seeking further information on the benefits and costs associated with adopting standards that address total communications, including voice, video, and data transmission rates and speeds. We seek recommendations for specific standards that the Board might reference to address total communication.

Video Communication

In this NPRM, the Board proposes that where ICT provides two-way voice communication that includes real-time video functionality, the quality of the video must be sufficient to support communication using sign language (section 410.8). The provision specifies a desired outcome and does not provide specific technical requirements. This approach resulted from public comments in response to our proposal in the 2010 ANPRM. Public commenters noted there were no existing standards supporting the technical requirements the Board had proposed concerning resolution, frame rates, and processing speed. In the 2011 ANPRM, the Board elected to remove those proposed technical requirements in favor of simply requiring the quality of the video to be sufficient to support communications using sign language. We received no comments on this approach, and retain it here in this NPRM.

EN 301 549, on the other hand, takes a different tact. In “6.6 Video Communication,” the standard specifies numeric measurements for such features as resolution (6.6.2), frame rates (6.6.3) and alternatives to video-based services (6.7). This approach is similar to our proposal in the 2010 ANPRM, which, as noted, the Board dropped due to significant negative comments.

In general, the approaches taken in EN 301 549 and this NPRM are similar and complimentary. The Access Board's proposed rule contains less detail in some proposed provisions, as discussed above. We elected to pursue this course in response to public comments and our desire to make use of a number of voluntary consensus standards by incorporating them by reference. This approach will result in better harmonization of accessibility standards worldwide.

V. Major Issues

The five major issues addressed in this NPRM are: (a) Scope of covered electronic content; (b) incorporation by reference of WCAG 2.0; (c) relationship between functional performance criteria and technical requirements; (d) coverage of real-time text; and (e) interoperability requirements for assistive technology. Each of these areas is discussed below.

A. Electronic Content

In this NPRM, the Board aims to bring needed clarity to the scope of electronic content subject to accessibility requirements in the 508 Standards. Based on the language of the Rehabilitation Act, § 1194.1 of the existing standards speaks of federal agencies ensuring that federal employees and members of the public with disabilities have comparable “access to and the use of [electronic] information and data.” Given its breadth, federal agencies have—not altogether surprisingly—had difficulty applying this mandate. The existing requirement does not adequately address what is meant by comparable access to information and data. Consequently, there has been confusion over whether and how such electronic content must be made accessible. Agencies have been reluctant to apply the existing 508 Standards to electronic information and data, except for Web pages.

The proposed rule would address these deficiencies in the existing 508 Standards by clearly delineating the scope of covered electronic content, as well as specifying concrete, testable, technical requirements to ensure the accessibility of such content. The Board proposes that all covered electronic content would be required to conform to WCAG 2.0 Level A and Level AA Success Criteria and Conformance Requirements specified for Web pages or, where applicable, ISO 14289-1 (PDF/UA-1).

Covered electronic content would, under the proposed rule, include two discrete groups of content. First, the Board proposes in E205.2 that all public-facing content—which encompasses electronic information and data made available by agencies to members of the general public—must satisfy applicable accessibility requirements in the proposed rule (
i.e.,
WCAG 2.0 Level A and Level AA Success Criteria or PDF/UA-1). This would include, for example, agency Web sites (and documents posted thereon), blog posts, and social media sites. Coverage of this broad category of agency-sponsored content is important because persons with disabilities should have equal access to electronic information and data made available to the public generally. This is an essential right established by the Rehabilitation Act.
3

3
An analogous provision in proposed C203.1 would require telecommunications equipment manufacturers to make content integral to the use of ICT conform to WCAG 2.0 or PDF/UA-1.

The central principle underlying the accessibility requirement for public-facing content is the notion that federal agencies must ensure equal access to electronic information that they themselves directly make available to the general public by posting on a public fora. So, for example, if a federal agency posts a PDF version of a recent settlement agreement on its Web site as part of a press release, that document would need to comply with PDF/UA-1. Or, if an agency posts a video created by an advocacy organization on the agency's Web site (or, alternatively, on a social media site hosted by a third party), the agency would also be required to ensure that that electronic information complied with accessibility requirements in proposed E205.2 for public-facing content. On the other hand, if a federal agency is the plaintiff in a lawsuit and serves an electronic version of a legal brief on a corporate defendant, the agency's legal brief would not be considered public-facing content even if the corporation subsequently posts a copy of the agency's document on its own Web site.

Second, with respect to electronic content that is not public facing, the Board aims to limit the scope of covered content to eight discrete categories of agency official communications that are most likely to affect a significant number of federal employees or the general public. Proposed E205.3 would require an agency's non-public facing electronic content to meet the accessibility requirements in the proposed rule (
i.e.,
WCAG 2.0 Level A

and Level AA Success Criteria or PDF/UA-1) when such content (a) constitutes agency official business, and (b) falls within one or more of eight categories of communication. Coverage would extend to all forms of content constituting official communications by agencies, including Web pages, postings on social media, emails, and electronic documents. The Board believes that this approach strikes an appropriate balance in ensuring the accessibility of essential electronic content for persons with disabilities, while also tempering agency compliance obligations. This approach also compliments the requirements of sections 501 and 504 of the Rehabilitation Act, which require agencies to provide reasonable accommodations as necessary to address the disability-related needs of employees and the public respectively.

Specifically, proposed E205.3 sets forth the following eight categories of non-public facing agency official communications that must satisfy the accessibility requirements in the proposed 508 Standards: (1) Emergency notifications (
e.g.,
an evacuation announcement in response to fires or other emergencies); (2) initial or final decisions adjudicating administrative claims or proceedings; (3) internal or external program or policy announcements (
i.e.,
information promulgated by an agency relating to programs it offers or policy areas it deals with); (4) notices of benefits, program eligibility, employment opportunities or personnel actions; (5) formal acknowledgements or receipts (
i.e.,
official replies by an agency that recognize the receipt of a communication); (6) questionnaires or surveys; (7) templates or forms; and (8) educational or training materials.

By limiting the scope of covered electronic content to these proposed eight categories of official communications, the Board intends to encourage agencies to do more to ensure that individuals with disabilities have comparable access to, and use of, electronic information and data. The Board does not intend this proposed approach to disturb or override the independent legal obligations of agencies—whether arising under sections 501 or 504 of the Rehabilitation Act or other statutes—to provide accessible communications as a reasonable accommodation or other required accommodations. For example, draft electronic documents exchanged by federal employees as part of an agency working group would not be covered by proposed E205.3, but might still be required to be accessible by Section 501 when needed by a federal employee with a disability to perform his or her job.

Question 4.
Are the eight proposed categories of non-public facing content sufficiently clear? Do they ensure a sufficient level of accessibility without imposing an unnecessary burden on agencies? If not, the Board encourages commenters to suggest revisions to these categories that would improve clarity or strike a more appropriate balance.

Notably absent from the proposed eight categories of non-public facing content is a type of content—namely, content “broadly disseminated throughout an agency”—that was included in the 2011 ANPRM. Several federal agencies and other commenters found this language to be vague and overbroad, and called for its revision or withdrawal. The Board acknowledges that the “broadly disseminated” category could, in practice, prove challenging to apply and lead to inconsistent implementation across agencies that the proposed 508 Standards are designed to address. Accordingly, the Board has not included “broadly disseminated” content as a category in the proposed rule. The Board nonetheless welcomes comment on this issue, and may include a “widely disseminated”-style category in the final rule should there prove to be a workable definition or metric to assess compliance.

Question 5.
Should a category for “widely disseminated” electronic content be included among the categories of non-public facing official communications by agencies that must meet the accessibility requirements in the 508 Standards? Why or why not? If such a category were to be included in the final rule, what metrics might be used to determine whether a communication is broadly disseminated throughout an agency?

Lastly, with respect to exceptions, the Board proposes in this NPRM an exception in E205.3 for non-public facing records maintained by the National Archives and Records Administration (NARA) for archival purposes under federal recordkeeping requirements. As proposed, such content—even if otherwise meeting the conditions in proposed E205.3 for electronic content that must be made accessible (
i.e.,
non-public facing agency official communications that fall within one or more of the eight enumerated categories)—would not be required to comply with the proposed 508 Standards so long as it remained non-public facing. The Board anticipates that the only content covered by this exception would be non-public facing archival materials administered or maintained by NARA in compliance with federal recordkeeping requirements, such as the Federal Records Act (codified at 44 U.S.C. Chapters 21, 29 and 33). It bears noting that NARA is not generally responsible for remediating inaccessible materials submitted to NARA by other agencies unless such materials are made publicly available by, for example, being posted on NARA's Web site.

Though the 2011 ANPRM included an express exception for draft materials, no such exception is included in either proposed E205.2 (Public Facing) or E205.3 (Agency Official Communications) for two main reasons. First, public-facing content—such as that covered by proposed E205.2—should be equally accessible to all members of the public regardless of whether it is in draft or final form. For example, a draft policy published for comment on an agency Web site should be accessible so that all affected individuals may provide feedback. Secondly, drafts, by their very nature, would typically fall outside the scope of the eight categories of content constituting agency official communications subject to proposed E205.3. Only final electronic documents that are ready for distribution would qualify as the type of content identified in proposed categories 1 through 8 of this provision. For example, a draft memorandum by an agency component announcing a new telework policy would not constitute a “policy announcement” (Category 3) subject to proposed E205.3 until it is finalized and ready to be transmitted to its intended audience of component employees.

B. WCAG 2.0 Incorporation by Reference

As noted above, the Board proposes in this NPRM to incorporate by reference WCAG 2.0. In the following sections, the Board discusses the rationale for, and certain issues related to, incorporation of this consensus standard.

1. Rationale for Incorporation by Reference

We have four principal reasons for incorporation by reference of WCAG 2.0. They are as follows:

First, our approach is consistent with that taken by other international standards organizations dealing with this issue. Standards developed in Australia, New Zealand, and Canada already directly reference WCAG 2.0. Moreover, WCAG 2.0 serves as the basis for Web accessibility standards in Germany (under “BITV 2”), France (under “RGAA 2.2.1”) and Japan (under “JIS X 83141”) and has so far generated

eight formal authorized translations. In addition, the European Commission references WCAG 2.0 in EN 301 549.

Second, incorporation by reference of WCAG 2.0 is consistent with section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note), as well as Office of Management and Budget (OMB) Circular A-119, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities (1998), which direct agencies to use voluntary consensus standards in lieu of government-unique standards except where inconsistent with law or otherwise impractical. See
http://www.whitehouse.gov/omb/circulars_a119
.
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4
OMB is in the process of updating Circular A-119. See Request for Comments on a Proposed Revision of OMB Circular No. A-119, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities, 79 FR 8207 (proposed Feb. 11, 2014). In its request for comment, OMB stated: “The revised Circular would maintain a strong preference for using voluntary consensus standards in Federal regulation and procurement. It would also acknowledge, however, that there may be some standards not developed using a consensus-driven process that are in use in the market—particularly in the information technology space—and that may be relevant (and necessary) in meeting agency missions and priorities.

Third, our approach is consistent with that being taken by another federal agency addressing a similar topic, namely the Department of Transportation's recent final rule addressing, among other things, the accessibility of air carrier and ticket agent Web sites. See Nondiscrimination on the Basis of Disability in Air Travel, 78 FR 67882 (Nov. 12, 2013).

Fourth, incorporation of WCAG 2.0 directly serves the best interests of Americans with disabilities because it will help accelerate the spread of Web accessibility. The accessibility of the Web is essential to enable the participation of individuals with disabilities in today's information society.

2. Justification for Applying WCAG 2.0 to Non-Web ICT

The Access Board is proposing to require not only Web content to conform to the Level A and Level AA Success Criteria and Conformance Requirements in WCAG 2.0—an approach with which commenters to the 2010 and 2011 ANPRMs unanimously agreed—but also software and non-Web documents. Several commenters to the 2011 ANRPM were critical of this approach, and questioned the propriety of applying WCAG 2.0 to non-Web ICT. For the reasons noted below, the Board believes that applying WCAG 2.0 outside the web browser environment not only ensures greater accessibility for persons with disabilities, but also minimizes the incremental burden on regulated entities by simplifying compliance through incorporation of a technologically-neutral consensus standard.

Because WCAG 2.0 was written to be technology neutral, the language and phrasing of the Success Criteria can be applied to any technology found on the Web. Since most file types are found on the Web and much software is now Web-enabled, it is reasonable to utilize WCAG 2.0 to evaluate off-line documents and software interfaces with straightforward substitution of terms to address this new application. This approach has the potential to significantly simplify accessibility conformance and assessment.

We find support for our approach from two other sources, namely the European Commission's Standardization Mandate M 376 (M376) of March 2012 and the World Wide Web Consortium's WCAG2ICT Task Force (“Task Force”). The W3C formed the Task Force in June 2012 in part to address reservations, expressed by some of the commenters to our 2011 ANPRM, about applying the criteria for accessible Web content to off-line documents and software. W3C invited participation from subject-matter experts from around the world, including representatives of federal agencies and others who had concerns with our approach. The Task Force's final consensus report provides guidance concerning application of WCAG 2.0 to non-Web ICT, specifically non-Web documents and software. See W3C Web Accessibility Initiative, WSC Working Group Note—Guidance on Applying WCAG 2.0 to Non-Web Information and Communications Technologies (Sept. 5, 2013), available at
http://www.w3.org/TR/wcag2ict/.

The Task Force analyzed each of the WCAG 2.0 Success Criteria to determine their suitability for application to non-Web content. There are thirty-eight Level A and Level AA Success Criteria in WCAG 2.0. The Task Force found that the majority of Success Criteria from WCAG 2.0 can be applied to non-Web documents and software with no, or only minimal, changes. Specifically, twenty-six Success Criteria do not include any Web-related terms and, therefore, can be applied directly as written and as described in the “Intent” sections of the most current version of “Understanding WCAG 2.0.” Thirteen of these twenty-six can be applied without any additional notes. The other thirteen also can be applied as written, but the Task Force provided additional informative notes in its report for the sake of clarity.

Of the remaining twelve Success Criteria, the Task Force found that eight of them can be applied as written when certain Web-specific terms or phrases like “Web page” are replaced with non-Web terms or phrases like “non-Web documents and software.” Additional notes are provided in the Task Force report to assist in the application of these Success Criteria to non-Web ICT. One example is Success Criterion 2.4.5 Multiple Ways. The Task Force noted that, when applied to the non-Web environment, this criterion requires that there be more than one way to locate a document (or software program) within a set of documents or programs. For mobile devices, this criterion could be satisfied by an operating system that makes files locatable by directory and search functions—features that are nearly ubiquitous among mobile operating systems in use today.

Another example is Success Criterion 3.2.3 Consistent Navigation. For this criterion, the Task Force noted that application to the non-Web environment would require consistency among navigational elements when such elements were repeated within sets of documents or software programs. To be conformant, navigational elements would be required to occur in the same relative order each time they are presented. It is unlikely that authors would provide navigation elements for a set of related documents and then present them differently from document to document, thereby defeating their purpose.

The Task Force's report also notes that applying the success criteria in WCAG 2.0 to non-Web ICT with closed functionality proves problematic when a success criterion assumes the presence of assistive technologies, since closed functionality—by definition—does not allow attachment or use of assistive technology. This might occur, for example, when an eBook allows assistive technologies to access all of the user interface controls of the eBook program (open functionality), but does not allow such technologies to access the actual content of books (closed functionality). The Task Force identified 14 success criteria for which compliance might prove challenging for developers of ICT products with closed functionality. We propose to resolve this issue by exempting ICT with closed functionality from certain WCAG 2.0 Success Criteria, in conjunction with the addition of requirements specific to such products in Chapter 402, Closed Functionality.

By incorporating WCAG 2.0 by reference, the proposed standards would provide a single set of requirements for Web sites, documents, and software. WCAG 2.0 addresses new technologies and is responsive to the fact that the characteristics of products (
e.g.,
native browser behavior and plug-ins and applets) have converged over time. Today, there are fewer distinctions among product categories, and some are outdated. For example, modern smartphones include: Software applications and operating systems, Web-based intranet and Internet information and applications, and video and multimedia products. Additionally, smartphones are portable computers, telecommunications products, and self-contained closed products. New requirements in WCAG 2.0 also address gaps in the existing 508 Standards. Examples include: A requirement for a logical reading order, the ability to resize text, and the ability to turn off background audio that might interfere with comprehension and screen reading software.

3. Comparison of WCAG 2.0 to Existing 508 Standards

While the WCAG 2.0 Success Criteria build on the heritage of the existing 508 Standards, they are generally more explicit than the standards. Careful attention was given during their development to ensure that the Success Criteria are written as objectively testable requirements. In addition, unlike the existing 508 Standards, WCAG 2.0 is written in a technologically neutral fashion, which makes it directly applicable to a wide range of content types and formats.

For example, operability of ICT through keyboards (or alternate keyboard devices) is often critical to accessibility. Persons who are blind or who have limited vision often use screen readers to navigate Web pages using only the keyboard. Keyboard operability is also essential for many individuals with motor impairments who use alternate keyboards, or input devices that act as keyboard emulators when accessing ICT because they find mouse pointing to be cumbersome or impossible. Keyboard emulators include voice recognition software, sip-and-puff software, and on-screen keyboards. The existing 508 Standards envision keyboard operability from both software and Web-based information or applications, but such requirements were not necessarily explicit. Section 1194.21(a) expressly mandates that, when software is designed to run on a keyboard, all product functions must generally be executable through a keyboard. With respect to Web-based information and applications, the 508 Standards are not so explicit. At the time these standards were promulgated, Web pages created with HyperText Markup Language (HTML®) were always keyboard operable. Therefore, an express requirement for keyboard operability by Web pages was unnecessary. The existing 508 Standards expressly require keyboard operability for Web pages that require applets and plug-ins to interpret page content since keyboard operation in these contexts was not ubiquitous. See 36 CFR 1194.22(m). Collectively, the existing 508 Standards thus address keyboard operability both within and outside the Web environment, but do so in a variety of ways.

Over the years, however, Web technologies have become more complex. Use of keyboards is often secondary to mouse or touch-only interfaces. Success Criterion 2.1.1 requires all functionality to be operable through a keyboard interface. Section 1194.21(a) of the existing 508 Standards requires that “[w]hen software is designed to run on a system that has a keyboard, product functions shall be executable from a keyboard where the function itself or the result of performing a function can be discerned textually.” This current wording is phrased as an input requirement based on output, and it leaves “discerned textually” as an undefined term. These are both flaws that may create accessibility gaps in application. For example, an operating system feature like “mouse keys” (where the keyboard cursor keys are used to steer the mouse pointer) satisfies this provision on its face, even though that feature is of no use to someone who cannot see the screen and relies on screen reading software. Success Criterion 2.1.1, on the other hand, while longer, only references input and uses no special jargon. This success criterion reads: “All functionality of the content [must be] operable through a keyboard interface without requiring specific timings for individual keystrokes, except where the underlying function requires input that depends on the path of the user's movement and not just the endpoints.”

The Access Board has created a comprehensive table comparing WCAG 2.0 Level A and AA Success Criteria to the corresponding requirements in the existing 508 Standards. The table can be found on our Web site at
www.access-board.gov/wcag2-508.
In this table, the Board has identified WCAG 2.0 success criteria as either “substantially equivalent” or “new” relative to the existing 508 Standards. Identification of a WCAG 2.0 success criterion as “new” indicates that it has no corresponding provision in the existing 508 Standards; rather, it addresses a deficiency with the existing 508 Standards as identified by the developers of WCAG. In most cases, agencies with Section 508 compliance testing processes have adapted their procedures to address these accessibility concerns.

In sum, there are 38 WCAG 2.0 Level A and AA Success Criteria. After careful comparison of these success criteria to the existing 508 Standards, the Access Board deems 22 success criteria to be substantially equivalent in substance to our existing standards. The Board estimates that agencies with content that meets this group of existing 508 Standards will incur no or minimal costs by virtue of incorporation of WCAG 2.0 into our proposed rule. For the remaining 16 success criteria the Board deems to be new, it is anticipated that agencies would, to a greater or lesser extent (depending on the content and criteria at issue), incur some costs when implementing WCAG 2.0.

Question 6.
The Board seeks comment on the extent that the proposed incorporation of WCAG 2.0 Level A and Level AA Success Criteria would result in new costs or benefits. We have characterized the majority of success criteria as “substantially equivalent” to requirements under the existing 508 Standards and 255 Guidelines and request comment as to the accuracy of this characterization.

4. Proposed Updates to Other Web-Specific Provisions in Existing 508 Standards

Along with the incorporation by reference of WCAG 2.0, the Board also proposes to update six provisions in the existing 508 Standards related to Web content to account for technological changes or their respective obsolescence. These six provisions for which the Board proposes deletion or replacement are as follows:

We propose to replace § 1194.21(g) of the existing 508 Standards, which prohibits applications from overriding user-selected contrast and color selections and other individual display attributes, with a new section 503.2 User Preferences. As with § 1194.21(g), this proposed provision requires applications to permit user preferences from platform settings for display settings. However, proposed 503.2 also provides an exception for applications—such as Web software—that are designed to be isolated from their operating systems. By design, Web applications (such as, for example, software used to create interactive

multimedia content) are isolated from the operating system (
i.e.,
“sand boxed”) for security reasons. An expectation that certain platform settings (
e.g.,
font preferences) apply globally to all documents found on the Web is not practical.

We propose to delete § 1194.22(d) of the existing 508 Standar

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-03467. Public record. Not legal advice.