# Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-10464 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** May 9, 2016 - **Citation:** 81 FR 28658 ## Text DEPARTMENT OF JUSTICE 28 CFR Part 35 [CRT Docket No. 128] RIN 1190-AA65 Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities AGENCY: Civil Rights Division, Department of Justice. ACTION: Supplemental advance notice of proposed rulemaking. SUMMARY: The Department of Justice (Department) is considering revising the regulation implementing title II of the Americans with Disabilities Act (ADA or Act) in order to establish specific technical requirements to make accessible the services, programs, or activities State and local governments offer to the public via the Web. In 2010, the Department issued an Advance Notice of Proposed Rulemaking (2010 ANPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. The purpose of this Supplemental Advance Notice of Proposed Rulemaking (SANPRM) is to solicit additional public comment specifically regarding the regulation implementing title II, which applies to State and local government entities. Specifically, the Department is issuing this SANPRM in order to solicit public comment on various issues relating to the potential application of such technical requirements to the Web sites of title II entities and to obtain information for preparing a regulatory impact analysis. DATES: The Department invites written comments from members of the public. Written comments must be postmarked and electronic comments must be submitted on or before August 8, 2016. ADDRESSES: You may submit comments, identified by RIN 1190-AA65 (or Docket ID No. 128), by any one of the following methods: • Federal eRulemaking Web site: www.regulations.gov. Follow the Web site's instructions for submitting comments. • Regular U.S. mail: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-0885. • Overnight, courier, or hand delivery: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 1425 New York Avenue NW., Suite 4039, Washington, DC 20005. FOR FURTHER INFORMATION CONTACT: Rebecca Bond, Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY). This is not a toll-free number. Information may also be obtained from the Department's toll-free ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY). You may obtain copies of this Supplemental Advance Notice of Proposed Rulemaking (SANPRM) in an alternative format by calling the ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY). This SANPRM is also available on the ADA Web site at www.ada.gov. Electronic Submission of Comments and Posting of Public Comments: You may submit electronic comments to www.regulations.gov. When submitting comments electronically, you must include CRT Docket No. 128 in the subject box, and you must include your full name and address. Electronic files should avoid the use of special characters or any form of encryption and should be free of any defects or viruses. Please note that all comments received are considered part of the public record and will be made available for public inspection online at www.regulations.gov. Posting of submission will include any personal identifying information (such as your name and address) included in the text of your comment. If you include personal identifying information in the text of your comment but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also include all the personal identifying information you want redacted along with this phrase. Similarly, if you submit confidential business information as part of your comment but do not want it posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on www.regulations.gov. SUPPLEMENTARY INFORMATION: I. Background A. Statutory History On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability. The ADA broadly protects the rights of individuals with disabilities as to employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life. The ADA also requires newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq. Section 204(a) of title II and section 306(b) of title III direct the Attorney General to promulgate regulations to carry out those titles, other than certain provisions dealing specifically with transportation. 42 U.S.C. 12134; 42 U.S.C. 12186(b). Title II applies to State and local government entities, and, in subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 504), to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. 42 U.S.C. 12131-65. Title III prohibits discrimination on the basis of disability in the full and equal enjoyment of places of public accommodation (privately operated entities whose operations affect commerce and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation--as well as commercial facilities (privately owned, nonresidential facilities, such as factories, warehouses, or office buildings)--to comply with the ADA Standards for Accessible Design (ADA Standards). 42 U.S.C. 12181-89. B. Rulemaking History On July 26, 1991, the Department issued its final rules implementing title II and title III, codified at 28 CFR part 35 (title II) and part 36 (title III), which included the ADA Standards. At that time, the Web was in its infancy and was not used by State and local governments as a means of providing services or information to the public and thus was not mentioned in the Department's title II regulation. In June 2003, in recognition of how the Internet was transforming interactions between the public and governmental entities, the Department published a document entitled Accessibility of State and Local Government Web sites to People with Disabilities, available at http://www.usdoj.gov/crt/ada/Web sites2.htm, which provides State and local governments guidance on how to make their Web sites accessible to ensure that persons with disabilities have equal access to the services, programs, and activities that are provided through those Web sites. This guidance recognizes that, increasingly, State and local governments are using their Web sites to allow services, programs, and activities to be offered in a more dynamic and interconnected way, which serves to do all of the following: increase citizen participation; increase convenience and speed in obtaining information or services; reduce costs in providing programs and information about government services; reduce the amount of paperwork; and expand the possibilities of reaching new sectors of the community or offering new programs. The guidance also provides that State and local governments might be able to meet their title II obligations by providing an alternative accessible means of obtaining the Web site's information and services ( e.g., a staffed telephone line). However, that guidance makes clear that alternative means would be “unlikely to provide an equal degree of access in terms of hours of operation and the range of options and programs available.” Accessibility of State and Local Government Web sites to People with Disabilities, available at http://www.usdoj.gov/crt/ada/web sites2.htm. This is even more true today, almost 13 years later, when the amount of information and complexity of Web sites has increased exponentially. On September 30, 2004, the Department published an Advance Notice of Proposed Rulemaking (2004 ANPRM) to begin the process of updating the 1991 regulations to adopt revised ADA Standards based on the relevant parts of the ADA and Architectural Barriers Act Accessibility Guidelines (2004 ADA/ABA Guidelines). 69 FR 58768 (Sept. 30, 2004). On June 17, 2008, the Department issued a Notice of Proposed Rulemaking (2008 NPRM) to adopt the revised 2004 ADA/ABA Guidelines and revise the title II and title III regulations. 73 FR 34466 (June 17, 2008). The 2008 NPRM addressed the issues raised in the public's comments to the 2004 ANPRM and sought additional comment. The Department did not propose to include Web accessibility provisions in the 2004 ANPRM or the 2008 NPRM, but the Department received numerous comments urging the Department to issue Web accessibility regulations under the ADA. Although the final title II rule, published on September 15, 2010, did not include specific requirements for Web accessibility, the guidance accompanying the final title II rule responded to these comments. See 28 CFR part 35, app. A, 75 FR 56163, 56236 (Sept. 15, 2010). In that guidance, the Department stated that since the ADA's enactment in 1990, the Internet had emerged as a critical means to provide access to public entities' programs and activities. Id. at 56236. The Department reiterated its position that title II covers public entities' Web sites and noted that it has enforced the ADA in this area on a case-by-case basis and that it intended to engage in future rulemaking on this topic. Id. The Department stated that public entities must ensure equal access to Web-based programs and activities for individuals with disabilities unless doing so would result in an undue financial and administrative burden or fundamental alteration. Id. On July 26, 2010, the Department published an ANPRM titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. 75 FR 43460 (July 26, 2010). The 2010 ANPRM announced that the Department was considering revising the regulations implementing titles II and III of the ADA to establish specific requirements for State and local governments and public accommodations to make their Web sites accessible to individuals with disabilities. In the 2010 ANPRM, the Department sought information regarding what standards, if any, it should adopt for Web accessibility; whether the Department should adopt coverage limitations for certain entities, like small businesses; and what resources and services were available to make existing Web sites accessible to individuals with disabilities. The Department also requested comments on the costs of making Web sites accessible; whether there are effective and reasonable alternatives to making Web sites accessible that the Department should consider permitting; and when any Web accessibility requirements adopted by the Department should become effective. The Department received approximately 400 public comments addressing issues germane to both titles II and III in response to the 2010 ANPRM. Upon review of those comments, the Department announced in 2015 that it decided to pursue separate rulemakings addressing Web accessibility for titles II and III. See Department of Justice—Fall 2015 Statement of Regulatory Priorities, available at http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html (last visited Apr. 13, 2016). The Department is moving forward with rulemaking under title II first. C. Need for Department Action 1. Use of Web sites by Title II Entities As mentioned previously, title II entities are increasingly using the Internet to disseminate information and offer services, programs, and activities to the public. Today, among other things, public entities use Web sites to promote employment opportunities and economic growth, improve the collection of payments and fees, encourage civic participation, and enhance educational opportunities. However, individuals with disabilities are often denied equal access to many of these services, programs, and activities because many public entities' Web sites are inaccessible. Thus, there is a digital divide between the ability of citizens with disabilities and those without disabilities to access the services, programs, and activities of their State and local governments. Public entities have created a variety of online Web portals to streamline their services, programs, and activities. Citizens can now make a number of online service requests—from requesting streetlight repairs and bulk trash pickups to reporting broken parking meters—and can often check the status of a service request online. Public entities also have improved the way citizens can obtain access to most common public services and pay fees and fines. Many States' Web sites now offer citizens the opportunity to renew their vehicle registrations, submit complaints, purchase event permits, and pay traffic fines and property taxes, making some of these otherwise time-consuming tasks easy to complete with a few clicks of a mouse at any time of the day or night. Moreover, many Federal benefits, such as unemployment benefits and food stamps, are available through State Web sites. Public entities also use their Web sites to make civic participation easier. Many public entities allow voters to begin the voter registration process and obtain candidate information on their Web sites. Individuals interested in running for local public offices can often find pertinent information concerning candidate qualifications and filing requirements on these Web sites as well. Citizens can watch local public hearings, read minutes from community meetings, or take part in live chats with government officials on the Web sites of State and local government entities. The Web sites of public entities also include a variety of information about issues of concern to the community and how citizens can get involved in community efforts to improve the administration of government services. Many public entities use online resources to promote employment opportunities and economic growth for their citizens. Individuals can use Web sites of public entities to file for unemployment benefits and find and apply for job openings. Pertinent job-related information and training opportunities are increasingly being provided on the Web sites of public entities. Through the Web sites of State and local governments, business owners can register their businesses, apply for occupational and professional licenses, bid on contracts to provide products and services to public entities, and obtain information about laws and regulations with which they must comply. The Web sites of many State and local governments also allow members of the public to research and verify business licenses online and report unsavory business practices. Public entities are also using Web sites as a gateway to education. Public schools at all levels are offering programs and classroom instruction through Web sites. Some public colleges and universities now offer degree programs online. Many public colleges and universities rely on Web sites and other Internet-related technologies to allow prospective students to apply for admission, request on-campus living assignments, register for courses, access assignments and discussion groups, and to participate in a wide variety of administrative and logistical functions required for students and staff. Similarly, in elementary and secondary public school settings, communications via the Web are increasingly becoming the way teachers and administrators notify parents and students of grades, assignments, and administrative matters. These issues are also discussed in the 2010 ANPRM, see 75 FR 43460 (July 26, 2010). 2. Barriers to Web Accessibility Millions of individuals in the United States have disabilities that affect their use of the Web. Many of these individuals use assistive technology to enable them to navigate Web sites or access information contained on those sites. For example, individuals who do not have use of their hands may use speech recognition software to navigate a Web site, while individuals who are blind may rely on a screen reader to convert the visual information on a Web site into speech. Many Web sites, however, fail to incorporate or activate features that enable users with disabilities to access all of the Web site's information or elements. For instance, individuals who are deaf are unable to access information in Web videos and other multimedia presentations that do not have captions. Individuals with low vision may be unable to read Web sites that do not allow text to be resized or do not provide sufficient contrast. Individuals with limited manual dexterity or vision disabilities who use assistive technology that enables them to interact with Web sites cannot access sites that do not support keyboard alternatives for mouse commands. These same individuals, along with individuals with intellectual and vision disabilities, often encounter difficulty using portions of Web sites that require timed responses from users but do not provide the option for users to indicate that they need more time to respond. Individuals who are blind or have low vision often confront significant barriers to Web access. This is because many Web sites provide information visually without features that allow screen readers or other assistive technology to retrieve information on the Web site so it can be presented in an accessible manner. A common barrier to Web site accessibility is an image or photograph without corresponding text describing the image. A screen reader or similar assistive technology cannot “read” an image, leaving individuals who are blind with no way of independently knowing what information the image conveys. Similarly, complex Web sites often lack navigational headings or links that would facilitate navigation using a screen reader or may contain tables with header and row identifiers that display data but fail to provide associated cells for each header and row so that the table information can be interpreted by a screen reader. Online forms, which are essential to accessing services on many government Web sites, are often inaccessible to individuals with disabilities who use screen readers. For example, field elements on forms, which are the empty boxes on forms that hold specific pieces of information, such as a last name or telephone number, may lack clear labels that can be read by assistive technology. Also, visual CAPTCHAs (Completely Automated Public Turing Test To Tell Computers and Humans Apart), which is distorted text that must be inputted by a Web site user to verify that a Web submission is being completed by a human rather than a computer, is not always accompanied by an audio CAPTCHA that is accessible. Inaccessible form fields and CAPTCHAs make it difficult for persons using screen readers to pay fees or fines, submit applications, and otherwise interact with a Web site. Some governmental entities use inaccessible third-party Web sites to accept online payments, while others request public input through inaccessible Web sites. These barriers greatly impede the ability of individuals with disabilities to access the services, programs, and activities offered by public entities on the Web. In many instances, removing certain Web site barriers is neither difficult nor especially costly. For example, the addition of invisible attributes known as alternative (alt) text or tags to an image, which can be done without any specialized equipment, will help keep an individual using a screen reader oriented and allow the individual to gain access to the information on the Web site. Similarly, headings, which also can be added easily, facilitate page navigation for those using screen readers. A discussion of barriers to Web access also appears in the 2010 ANPRM, see 75 FR 43460 (July 26, 2010). 3. Compliance With Voluntary Technical Accessibility Standards Has Been Insufficient in Providing Access The Internet as it is known today did not exist when Congress enacted the ADA and, therefore, neither the ADA nor the regulations the Department promulgated under the ADA specifically address access to Web sites. Congress contemplated that the Department would apply the statute in a manner that evolved over time and delegated authority to the Attorney General to promulgate regulations to carry out the Act's broad mandate. See H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 108 (1990); 42 U.S.C. 12186(b). Consistent with this approach, the Department stated in the preamble to the original 1991 ADA regulations that the regulations should be interpreted to keep pace with developing technologies. 28 CFR part 36, app. B. There is no doubt that the programs, services, and activities provided by State and local government entities on their Web sites are covered by title II of the ADA. See 28 CFR 35.102 (providing that the title II regulation “applies to all services, programs, and activities provided or made available by public entities”). Similarly, Web sites of recipients of Federal financial assistance are covered by section 504 of the Rehabilitation Act. As discussed above, the Department has affirmed the application of these statutes to Web sites in its technical assistance publication, Accessibility of State and Local Government Web sites to People with Disabilities, available at http://www.usdoj.gov/crt/ada/Web sites2.htm. Despite the clear application of the ADA to public entities' Web sites, it seems that technical Web standards under the ADA will help provide public entities with more specific guidance on how to make the services, programs, and activities they offer on their Web sites accessible. The title II ADA regulation currently has such specific guidance with regard to physical structures through the ADA Standards, which provide technical requirements on how to make physical environments accessible. It seems that similar clarifying guidance for public entities in the Web context is also needed. It has been the policy of the United States to encourage self-regulation with regard to the Internet wherever possible and to regulate only where self-regulation is insufficient and government involvement may be necessary. See Memorandum on Electronic Commerce, 33 WCPD 1006, 1006-1010 (July 1, 1997), available at http://www.gpo.gov/fdsys/pkg/WCPD-1997-07-07/html/WCPD-1997-07-07-Pg1006-2.htm (last visited Apr. 13, 2016); The Framework for Global Electronic Commerce, available at http://clinton4.nara.gov/WH/New/Commerce (last visited Apr. 13, 2016). A variety of voluntary standards and structures have been developed for the Internet through nonprofit organizations using multinational collaborative efforts. For example, the Internet Corporation for Assigned Names and Numbers (ICANN) issues and administers domain names, the Internet Society (ISOC) publishes computer security policies and procedures for Web sites, and the World Wide Web Consortium (W3C®) develops a variety of technical standards and guidelines ranging from issues related to mobile devices and privacy to internationalization of technology. In the area of accessibility, the Web Accessibility Initiative (WAI) of the W3C® created the Web Content Accessibility Guidelines (WCAG), which cover a wide range of recommendations for making Web content more accessible not just to users with disabilities but also to users in general. There have been two versions of WCAG, beginning with WCAG 1.0, which was developed in 1999, and an updated version, WCAG 2.0, which was released in 2008. Voluntary standards can be sufficient in certain contexts, particularly where economic incentives align with the standards' goals. Reliance on voluntary compliance with Web site accessibility guidelines, however, has not resulted in equal access for persons with disabilities. See, e.g., National Council on Disability, The Need for Federal Legislation and Regulation Prohibiting Telecommunications and Information Services Discrimination (Dec. 19, 2006), available at http://www.ncd.gov/publications/2006/Dec282006 (last visited Apr. 13, 2016) (discussing how competitive market forces have not proven sufficient to provide individuals with disabilities access to telecommunications and information services). The WAI leadership has recognized this challenge and has stated that in order to improve and accelerate Web accessibility it is important to “communicat[e] the applicability of the ADA to the Web more clearly, with updated guidance * * * .” Achieving the Promise of the Americans with Disabilities Act in the Digital Age—Current Issues, Challenges, and Opportunities: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties, H. Comm. On the Judiciary, 111th Cong. 35 (Apr. 22, 2010) (statement of Judy Brewer, Director, Web Accessibility Initiative at the W3C®) available at http://judiciary.house.gov/_files/hearings/printers/111th/111-95_56070.PDF (last visited Apr. 13, 2016). Despite the availability of voluntary Web accessibility standards and the Department's clearly stated position that title II requires all services, programs, and activities of public entities, including those available on Web sites, to be accessible, individuals with disabilities continue to struggle to obtain access to the Web sites of public entities. As a result, the Department has addressed Web access in many agreements with State and local governments. Moreover, other Federal agencies have also taken enforcement action against public entities regarding the lack of access for persons with disabilities to their Web sites. In April 2013, for example, the Department of Labor cited the Florida Department of Economic Opportunity Office of Unemployment Compensation for violating Federal statutes, including title II of the ADA, for requiring unemployment compensation applicants to file claims online and complete an online skills assessment as part of the claims-filing process even though the State's Web site was inaccessible. In re Miami Workers Ctr., CRC Complaint No. 12-FL-048 (Dep't Labor 2013) (initial determination), available at http://nelp.3cdn.net/2c0ce3c2929a0ee4e1_wim6i5ynx.pdf (last visited Apr. 13, 2016). The Department believes that adopting Web accessibility standards would provide clarity to public entities regarding how to make accessible the services, programs, and activities they offer the public via their Web sites. Adopting specific Web accessibility standards to guide public entities in maintaining accessible Web sites would also provide individuals with disabilities with consistent and predictable access to the Web sites of public entities. As noted above, many services, programs, and activities that public entities offer on their Web sites have not been accessible to individuals with disabilities. Because Web sites can be accessed at any time, these services, programs, and activities are available to the public at their convenience. Accessible alternative means for obtaining access to services, programs, and activities offered on Web sites, such as a staffed telephone line, would need to afford individuals with disabilities equivalent access to such Web-based information and services ( i.e., 24 hours a day/7 days a week). As indicated in the 2003 guidance, the Department questions whether alternative means would be likely to provide an equal degree of access. As Web sites have become more interconnected, dynamic, and content heavy, it has become more difficult, if not impossible, for public entities to replicate by alternative means the services, programs, and activities offered on the Web. Accessibility of State and Local Government Web sites to People with Disabilities, available at http://www.usdoj.gov/crt/ada/Web sites2.htm (“These alternatives, however, are unlikely to provide an equal degree of access in terms of hours of operation and the range of options and programs available.”). The increasingly interconnected and dynamic nature of Web sites has allowed the public to easily and quickly partake in a public entity's programs, services, and activities via the Web. Individuals with disabilities—like other members of the public—should be able to equally engage with public entities' services, programs, and activities directly through the medium of the Web. Opportunities for such engagement, however, require that public entities' Web content be accessible to individuals with disabilities. These issues are also discussed in the 2010 ANPRM, see 75 FR 43460 (July 26, 2010). After considering the comments that it received in response to its 2010 ANPRM, the Department has refined its proposal and is issuing this SANPRM to focus on the accessibility of Web information and services of State and local government entities and to seek further public comment. II. Request for Public Comment The Department is seeking comments in response to this SANPRM, including the proposed framework, definitions, requirements, and timeframes for compliance under consideration, and to the specific questions posed in this SANPRM. The Department is particularly interested in receiving comments from all those who have a stake in ensuring that the Web sites of public entities are accessible to people with disabilities or who would otherwise be affected by a regulation requiring Web site access. The Department appreciates the complexity and potential impact of this initiative and therefore also seeks input from experts in the field of computer science, programming, networking, assistive technology, and other related fields whose feedback and expertise will be critical in developing a workable framework for Web site access, which respects the unique characteristics of the Internet and its transformative impact on everyday life. In your comments, please refer to each question by number. Please provide additional information not addressed by the proposed questions if you believe it would be helpful in understanding the implications of imposing ADA regulatory requirements on the Web sites of State and local government entities. A. The Meaning of “Web Content” The Department is generally considering including within the scope of its proposed rule all Web content public entities make available to the public on their Web sites and Web pages, regardless of whether such Web content is viewed on desktop computers, notebook computers, smart phones, or other mobile devices. WCAG 2.0 defines Web content as “information and sensory experience to be communicated to the user by means of a user agent, including code or markup that defines the content's structure, presentation, and interactions.” See Web Content Accessibility Guidelines 2.0 (Dec. 2008), available at http://www.w3.org/TR/WCAG/#glossary (last visited Apr. 13, 2016). For any proposed rule, the Department would consider adding a definition for “Web content,” which would be based on the WCAG 2.0's definition but would be slightly less technical with the intention that it could be more easily understood by the public generally. A proposed definition for “Web content” could look like the following: Information or sensory experience—including the encoding that defines the structure, presentation, and interactions—that is communicated to the user by a Web browser or other software. Examples of Web content include text, images, sounds, videos, controls, and animations. The above definition of “Web content” attempts to describe the different types of information and experiences available on the Web. The definition of “Web content” also would include the encoding ( i.e., programming code) used to create the structure, presentation, or interactions of the information or experiences on Web pages that range from static Web pages ( e.g., Web pages with only textual information) to dynamic Web pages ( e.g., Web pages with live Web chats). Examples of programming languages used to create Web pages include Hypertext Markup Language (HTML), Cascading Style Sheets (CSS), Flash, and JavaScript. The above definition of Web content would not, however, include a Web browser or other software that retrieves and interprets the programming code and displays it as a Web site or Web page. Web browsers are a vehicle for viewing Web content and are usually separate from the information, experiences, and encoding on a Web site. Typically, a person needs a Web browser to access the information or experiences available on the Web. A Web browser is the primary software on a desktop or notebook computer, or on a smart phone or other mobile device, which enables a person to view Web sites and Web pages. Common Web browsers used on desktop computers and mobile devices include Chrome, Firefox, Internet Explorer, Opera, and Safari. Web browsers retrieve and display different types of information and experiences available from Web sites and Web pages. Web browsers display the information and experiences by retrieving and interpreting the encoding—such as HTML—that is used to create Web sites and Web pages. The definition of “Web content” also would not include other software, such as plug-ins, that help to retrieve and display information and experiences that are available on Web sites and Web pages of public entities. For example, when a person clicks on a PDF document or link on a Web page, Adobe Reader—which is a plug-in software—will open the PDF document either within the Web browser or directly in Adobe Reader, depending on the Web browser's settings. Similarly, other popular plug-ins, such as Adobe Flash Player, Apple QuickTime Player, and Microsoft Windows Media Player allow users to play audio, video, and animations. The fact that plug-ins are required to open the PDF document, audio file, or video file is not always apparent to the person viewing the PDF document, listening to the audio, or watching the video. In sum, the Department is considering proposing a rule that would cover Web content available on public entities' Web sites and Web pages but that generally would not extend to most software, including Web browsers. The Department proposes a series of questions in section VI.B, however, regarding whether it should consider covering services, programs, and activities offered by public entities through mobile software applications ( see section VI.B “Mobile Applications”). Question 1: Although the definition of “Web content” that the Department is considering proposing is based on the “Web Content” definition in WCAG 2.0, it is a less technical definition. Is the Department's definition under consideration in harmony with and does it capture accurately all that is contained in WCAG 2.0's “Web content” definition? B. Access Requirements to Apply to Web sites and Web Content of Public Entities 1. Standards for Web Access In its 2010 ANPRM, the Department asked for public comment about which accessibility standard it should apply to the Web sites of covered entities. The 2010 ANPRM discussed three potential accessibility standards to apply to Web sites of covered entities: (1) WCAG 2.0; (2) the Electronic and Information Technology Accessibility Standards, more commonly known as the section 508 standards; and (3) general performance-based standards. As explained below, the Department is considering proposing WCAG 2.0 Level AA as the accessibility standard that would apply to Web sites and Web content of title II entities. Since 1994, the W3C® has been the principal international organization involved in developing protocols and guidelines for the Web. The W3C® develops a variety of technical standards and guidelines, including ones relating to privacy, internationalization of technology, and, relevant to this rulemaking, accessibility. The W3C®'s WAI has developed voluntary guidelines for Web accessibility, known as WCAG, to help Web developers create Web content that is accessible to individuals with disabilities. The first version of WCAG (hereinafter referred to as WCAG 1.0) was published in 1999. The most recent and updated version of WCAG (hereinafter referred to as WCAG 2.0) was published in December 2008, and is available at http://www.w3.org/TR/2008/REC-WCAG20-20081211/ (last visited Apr. 13, 2016). WCAG 2.0 has become the internationally recognized benchmark for Web accessibility. In October 2012, WCAG 2.0 was approved as an international standard by the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC). Several nations, including Australia, Canada, France, Germany, Hong Kong, Japan, New Zealand, and South Korea, have either adopted WCAG 2.0 as their standard for Web accessibility or developed standards based on WCAG 2.0. Within the United States, some States, including Alaska, Georgia, Hawaii, and Minnesota, are also using WCAG 2.0 as their standard for Web accessibility. The Web accessibility standards in other States, such as California, Florida, Illinois, Maryland, New York, and Texas, are based on the section 508 standards (which are currently based on WCAG 1.0), and efforts are underway in at least one of these States to review and transition to WCAG 2.0. WCAG 2.0 was designed to be “technology neutral” ( i.e., it does not rely on the use of specific Web technologies) in order to accommodate the constantly evolving Web environment and to be usable with current and future Web technologies. Thus, while WCAG 2.0 sets an improved level of accessibility and testability over WCAG 1.0, it also allows Web developers more flexibility and potential for innovation. WCAG 2.0 contains four principles that provide the foundation for Web accessibility. Under these four principles, there are 12 guidelines setting forth basic goals to ensure accessibility of Web sites. For each guideline, testable success criteria ( i.e., requirements for Web accessibility that are measurable) are provided “to allow WCAG 2.0 to be used where requirements and conformance testing are necessary such as in design specification, purchasing, regulation and contractual agreements.” See WCAG 2.0 Layers of Guidance, Web Content Accessibility Guidelines 2.0 (Dec. 2008), available at http://www.w3.org/TR/WCAG/#intro-layers-guidance (last visited Apr. 13, 2016). In order for a Web page to conform to WCAG 2.0, the Web page must satisfy all success criteria under one of the three levels of conformance: A, AA, or AAA. The three levels of conformance indicate a measure of accessibility. Level A, which is the minimum level of conformance, contains criteria that provide basic Web accessibility. Level AA, which is the intermediate level of conformance, includes all of the Level A criteria as well as enhanced criteria that provide more comprehensive Web accessibility. Level AAA, which is the maximum level of conformance, includes all Level A and Level AA criteria as well as additional criteria that can provide a more enriched user experience. At this time, the W3C® does not recommend that Level AAA conformance be required as a general policy for entire Web sites because it is not possible to satisfy all Level AAA criteria for some content. See Understanding Requirement 1, Understanding WCAG 2.0: A Guide to Understanding and Implementing WCAG 2.0 (last revised Jan. 2012), available at http://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-conformance-requirements-head (last visited Apr. 13, 2016). The 2010 ANPRM asked the public to provide input on which of the three conformance levels the Department should adopt if it decided to use WCAG 2.0 as the standard for Web accessibility. Most of the comments the Department received overwhelmingly supported adopting Level AA conformance. Commenters emphasized that Level AA conformance has been widely recognized and accepted as providing an adequate level of Web accessibility without being too burdensome or expensive. Some commenters urged the Department to adopt Level A conformance under WCAG 2.0, stating that requiring any higher level of conformance would result in hardship for smaller entities because of their lack of resources and technical expertise. The commenters supporting the adoption of Level A conformance asserted that some Level AA criteria, such as the provision to caption all live-audio content in synchronized media, are expensive and technically difficult to implement. The W3C®, the creator of WCAG 2.0, submitted comments stating that the adoption of Level AA conformance is appropriate and necessary to ensure a sufficient level of accessibility for individuals with different kinds of disabilities and is feasible to implement for Web sites ranging from the most simple to the most complex. No commenters suggested that the Department adopt Level AAA in its entirety. Based on its review of public comments and independent research, the Department is considering proposing WCAG 2.0 Level AA as the technical standard for public entity Web sites because it includes criteria that provide more comprehensive Web accessibility to individuals with disabilities—including those with visual, auditory, physical, speech, cognitive, developmental, learning, and neurological disabilities. In addition, Level AA conformance is widely used, indicating that it is generally feasible for Web developers to implement. Level A conformance does not include criteria for providing Web accessibility that some commenters generally considered important, such as minimum levels of contrast, text resizable up to 200 percent without loss of content, headings and labels, or visible keyboard focus ( e.g., a visible border showing keyboard navigation users the part of the Web page with which they are interacting). 1 Also, while Level AAA conformance provides a better and enriched user experience for individuals with disabilities, it is not possible to satisfy all Level AAA Success Criteria for some content. Therefore, the Department believes that Level AA conformance is the most appropriate standard. 1 W3C®, Focus Visible: Understanding SC 2.4.7., available at https://www.w3.org/TR/UNDERSTANDING-WCAG20/navigation-mechanisms-focus-visible.html (last visited Apr. 13, 2016). Note that while WCAG 2.0 provides that for “Level AA conformance, the Web page [must] satisf[y] all the Level A and Level AA Success Criteria,” individual Success Criteria in WCAG 2.0 are labeled only as Level A or Level AA. See Conformance Requirements, Web Content Accessibility Guidelines 2.0 (Dec. 2008), available at http://www.w3.org/TR/WCAG/#conformance-reqs (last visited Apr. 13, 2016). A person reviewing individual requirements in WCAG 2.0, accordingly, may not understand that both Level A and Level AA Success Criteria must be met in order to attain Level AA. Therefore, for clarity, the Department is considering that any specific regulatory text it proposes regarding compliance with WCAG 2.0 Level AA should provide that covered entities must comply with both Level A and Level AA Success Criteria and Conformance Requirements specified in WCAG 2.0. Adoption of WCAG 2.0 Level AA would make the ADA requirements consistent with the standard that has been most widely accepted internationally. As noted earlier, several nations have selected Level AA conformance under WCAG 2.0 as their standard for Web accessibility. Additionally, in 2012, the European Commission issued a proposal for member countries to adopt Level AA conformance under WCAG 2.0 as the accessibility standard for public sector Web sites, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0721:FIN:EN:PDF (last visited Apr. 13, 2016). The Web sites of Federal agencies that are governed by section 508 may soon also need to comply with WCAG 2.0. The U.S. Access Board (Access Board) has proposed to update and revise the section 508 standards by adopting the Level AA conformance requirements under WCAG 2.0. See 80 FR 10880 (Feb. 27, 2015); 76 FR 76640 (Dec. 8, 2011); 75 FR 13457 (Mar. 22, 2010). The Department also considered whether it should propose adoption of the current section 508 standards instead of WCAG 2.0. The 2010 ANPRM sought public comment on this question. Section 508 of the Rehabilitation Act requires the Federal government to ensure that the electronic and information technology that it develops, procures, maintains, or uses—including Web sites—is accessible to persons with disabilities. See 29 U.S.C. 794(d). In 2000, the Access Board adopted and published the section 508 standards, 36 CFR part 1194, available at http://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-section-508-standards/section-508-standards (last visited Apr. 13, 2016), to implement section 508. The section 508 standards, among other things, provide specific technical requirements to ensure that Federal government Web sites are accessible to individuals with disabilities. These technical requirements for Web accessibility are based on WCAG 1.0. Public commenters on the 2010 ANPRM overwhelmingly supported the Department's adoption of WCAG 2.0 over the current section 508 standards. Commenters emphasized that because the Web accessibility requirements in the current section 508 standards are based on the almost 14-year-old WCAG 1.0, they are outdated and inappropriate to address the evolving and increasingly dynamic Web environment. The Department agrees that since WCAG 1.0 and the section 508 standards were issued, Web technologies and online services have evolved and changed, and, thus, the Department does not believe that either one would be the appropriate standard for any title II ADA Web accessibility requirements. By contrast, WCAG 2.0 provides an improved level of accessibility and testability. Also, unlike WCAG 1.0, WCAG 2.0 has been designed to be technology neutral to provide Web developers more flexibility to address accessibility of current as well as future Web technologies. In addition, as mentioned previously, the Department is aware that the Access Board issued a recent NPRM in 2015 and two ANPRMs—one in 2010 and another in 2011—proposing to update and revise the section 508 standards by adopting WCAG 2.0 as the standard for Web accessibility. 80 FR 10880 (Feb. 27, 2015); 76 FR 76640 (Dec. 08, 2011); 75 FR 13457 (Mar. 22, 2010). The Department's 2010 ANPRM also sought public comment on whether the Department should adopt performance standards instead of specific technical standards for accessibility of Web sites. Performance standards establish general expectations or goals for Web accessibility and allow for compliance via a variety of unspecified methods and means. While some commenters supported the adoption of performance standards for Web accessibility, pointing out that they provide greater flexibility in ensuring accessibility as Web technologies change, a vast majority of commenters supported the adoption of WCAG 2.0 instead. The majority of commenters stressed that performance standards are likely too vague and subjective and would prove insufficient in providing consistent and testable requirements for Web accessibility. Several commenters who supported the adoption of WCAG 2.0 also noted that, similar to a performance standard, WCAG 2.0 has been designed to allow for flexibility and innovation in the evolving Web environment. The Department recognizes the importance of adopting a standard for Web accessibility that provides not only specific and testable requirements, but also sufficient flexibility to develop accessibility solutions for new Web technologies. The Department believes that WCAG 2.0 achieves this balance because it provides flexibility similar to a performance standard, but also provides more clarity, consistency, and objectivity. Using WCAG 2.0 would also enable public entities to know precisely what is expected of them under title II, which may be of particular benefit to jurisdictions with less technological experience. It would also harmonize with the requirements adopted by certain other nations, some State and local governments in the U.S., and with the standard proposed by the U.S. Access Board that would apply to Federal agency Web sites. Thus, the Department is considering proposing that public entities comply with WCAG 2.0 Level AA. Question 2: Are there other issues or concerns that the Department should consider regarding the accessibility standard—WCAG 2.0 Level A and Level AA Success Criteria and Conformance Requirements—the Department is considering applying to Web sites and Web content of public entities? Please provide as much detail as possible in your response. 2. Timeframe for Compliance The 2010 ANPRM asked for public comment regarding the effective date of compliance with any Web accessibility requirements the Department would adopt. Comments regarding the compliance date were extremely varied—ranging from requiring compliance upon publication to allowing a five-year window for compliance—with no clear consensus favored. Many of the comments advocating for shorter timeframes came from individuals with disabilities or disability advocacy organizations. These commenters argued that Web accessibility has long been required by the ADA and that an extended deadline for compliance rewards entities that have not made efforts to make their Web sites accessible. A similar number of commenters responded asking for longer timeframes to comply. Commenters representing public entities were particularly concerned about shorter compliance deadlines, often citing budgets and staffing as major limitations. Many public entities stated that they lack qualified personnel to implement Web accessibility requirements. The commenters stated that in addition to needing time to implement the changes to their Web sites, they also need time to train staff or contract with professionals who are proficient in developing accessible Web sites. Despite the absence of a regulation, many public entities have some familiarity with Web accessibility. For over a decade, the Department has provided technical assistance materials, and engaged in concerted enforcement efforts, that specifically have addressed Web accessibility. 2 Additionally, while not all covered entities have adopted WCAG 2.0 Level AA, it is likely that there is some degree of familiarity with that standard in the regulated community, which may help mitigate the time needed for compliance. Therefore, the Department is considering a two-year implementation timeframe for most public entities in an effort to balance the importance of accessibility for individuals with disabilities with the resource challenges faced by public entities. The Department is considering the following proposal to address specific standards and timeframes for compliance: 2 See, e.g., The ADA Best Practices Tool Kit for State and Local Governments (July 26, 2007), available at http://www.ada.gov/pcatoolkit/toolkitmain.htm; Chapter 5: Web site Accessibility under Title II of the ADA (May 7, 2007), available at http://www.ada.gov/pcatoolkit/ch5_toolkit.pdf; Chapter 5 Addendum: Title II Checklist (Web site Accessibility) (May 4, 2007), available at http://www.ada.gov/pcatoolkit/ch5_chklist.pdf; Cities and Counties: First Steps toward Solving Common ADA Problems, available at http://www.ada.gov/civiccommonprobs.htm; Accessibility of State and Local Government Web sites to People with Disabilities (June 2003), available at http://www.usdoj.gov/crt/ada/Web sites2.htm; Settlement Agreement Between the United States and Pennington County, South Dakota, Under the Americans with Disabilities Act (effective June 1, 2015), available at http://www.ada.gov/pennington_co/pennington_sa.html. Effective two years from the publication of this rule in final form, a public entity shall ensure that the Web sites and Web content it makes available to members of the public comply with Level A and Level AA Success Criteria and Conformance Requirements specified in 2008 WCAG 2.0, except for Success Criterion 1.2.4 on live-audio content in synchronized media, 3 unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. 3 Live-audio content in synchronized media, addressed in Level AA Success Criterion 1.2.4, is discussed in section II.B.3. “Captions for Live-Audio Content in Synchronized Media” below. Under such a proposal, public entities would have two years after the publication of a final rule to make their Web sites and Web content accessible in conformance with WCAG 2.0 Level AA, unless compliance with the requirements would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. (The limitations on a public entity's obligation to comply with the proposed requirements are discussed in more detail in section V. “Compliance Limitations and Other Duties” below.) Question 3: Does an effective date of two years after the publication of a final rule strike an appropriate balance of stakeholder interests? Why or why not? Should the Department consider a shorter or longer effective date? If so, what should those timeframes be and why? Please provide support for your view. Should the Department consider different approaches for phasing in compliance? For example, should the Department consider permitting public entities to make certain Web pages (e.g., most frequently used or necessary to participate in the public entity's service, program, or activity) compliant by an initial deadline, and other Web pages compliant by a later deadline? If so, how should the Department define the Web pages that would be made accessible first, and what timeframes should the Department consider? Please provide support for your view. Question 4: Some 2010 ANPRM commenters expressed concern that there is likely to be a shortage of professionals who are proficient in Web accessibility to assist covered entities in bringing their Web sites into compliance. Please provide any data that the Department should consider that supports your view. 3. Captions for Live-Audio Content in Synchronized Media Level AA Success Criterion 1.2.4 under WCAG 2.0 requires synchronized captions for all live-audio content in synchronized media. The intent of Success Criterion 1.2.4 is to “enable people who are deaf or hard of hearing to watch real-time presentations. Captions provide the part of the content available via the audio track. Captions not only include dialogue, but also identify who is speaking and notate sound effects and other significant audio.” See Captions (Live), Understanding WCAG 2.0: A Guide to Understanding and Implementing WCAG 2.0 (last revised Jan. 2012), available at http://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-real-time-captions.html (last visited Apr. 13, 2016) (emphasis in original). Because of the added cost of, and the lack of mature technologies for, providing real-time captions for live performances or events presented on the Web, some countries that have adopted WCAG 2.0 Level AA as their standards for Web accessibility, such as Canada and New Zealand, have specifically exempted the requirement for captioning of live-audio content in synchronized media. Also, as mentioned previously, several commenters urged the Department to not adopt Level AA conformance under WCAG 2.0 because of their concern that providing synchronized captions for all live-audio content in synchronized media on the Web would be technically difficult to implement. The Department recognizes commenters' concerns that providing real-time captions for live performances or events may be technically difficult to implement and may create additional costs and burdens for public entities. However, the Department also recognizes that technologies used to provide real-time captions for Web content are improving and that covered entities are increasingly providing live Webcasts ( i.e., broadcasts of live performances or events on the Web) of public hearings and committee meetings, the majority of which are not accessible to individuals with disabilities. In order for individuals with disabilities to participate in civic life more fully, public entities need to provide real-time captions for public hearings or committee meetings they broadcast on the Web as technology improves and providing captions becomes easier. Still, the information gathered from public comments and independent research suggests that public entities may need more time to make this type of Web content accessible. Accordingly, the Department is considering a longer compliance schedule for public entities to comply with the WCAG 2.0 Level AA conformance requirements to provide captions for live-audio content in synchronized media on Web sites and seeks public input on how it should frame those proposed requirements. The Department is considering the following proposal for captions for live-audio content in synchronized media: Effective three years from the publication of this final rule, a public entity shall ensure that live-audio content in synchronized media it makes available to members of the public complies with Level AA Success Criteria and Conformance Requirements specified in 2008 WCAG 2.0, unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. Question 5: Is there technology available now that would allow public entities to efficiently and effectively provide captioning of live-audio content in synchronized media in compliance with WCAG 2.0 Level AA conformance? If so, what is the technology and how much does it cost? If public entities currently provide captioning for live-audio content, what method, process, or technology do they use to provide the captions? If such technology is not currently available, when is it likely to become available? Question 6: What are the availability and the cost of hiring and using trained professionals who could provide captions for live-audio content in synchronized media? What are the additional costs associated with producing captions for live-audio content in synchronized media, such as the technological components to ensuring that the captions are visible on the Web site and are synchronized with the live-audio content? Question 7: Should the Department consider a shorter or longer effective date for the captioning of live-audio content in synchronized media requirement, or defer this requirement until effective and efficient technology is available? Please provide detailed data and information for the Department to consider in your response. 4. Equivalent Facilitation The Department recognizes that a public entity should be permitted to use designs, products, or technologies as alternatives to those prescribed for any Web accessibility requirements, provided that such alternatives result in substantially equivalent or greater accessibility and usability. The Department is considering including a provision in a proposed Web access rule that addresses this principle, which is known as equivalent facilitation. The 1991 and 2010 ADA Standards for Accessible Design both contain a similar equivalent facilitation provision. The purpose of allowing for equivalent facilitation is to encourage flexibility and innovation by covered entities while still ensuring substantially equivalent or greater accessibility and usability. The Department believes, however, the responsibility for demonstrating equivalent facilitation rests with the covered entity. Question 8: Are there any existing designs, products, or technologies (whether individually or in combination with others) that would result in accessibility and usability that is either substantially equivalent to or greater than WCAG 2.0 Level AA? Question 9: Are there any issues or concerns that the Department should consider in determining how a covered entity would demonstrate equivalent facilitation? C. Alternative Requirements 1. Small Public Entities The Department is also interested in exploring and receiving public comment about whether to consider proposing alternate conformance levels, compliance date requirements, or other methods to minimize any significant economic impact on small public entities. The discussion in this section provides the Department's thinking regarding potential ways to minimize any significant economic impact on small entities. However, the Department is open to other alternatives for achieving this purpose and that satisfy the requirements and purposes of title II of the Americans with Disabilities Act. For the purpose of this rulemaking, a “small public entity” is one that qualifies as a “small governmental jurisdiction” under the Regulatory Flexibility Act of 1980 (RFA), which defines the term to mean “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand * * *”). 5 U.S.C. 601(5). In order to make the distinction between the population sizes of public entities clear for the purposes of a rulemaking, the Department is considering proposing that the population of a public entity should be determined by reference to the total general population of the jurisdiction as calculated by the U.S. Census Bureau, not the population that is eligible for or that takes advantage of the public entity's specific services. For example, a county school district in a county with a population of 60,000 would not be considered a small public entity regardless of the number of students enrolled in or eligible for services. As another example, individual county schools also would not be considered small public entities if they are components of a county government that has a population of over 50,000 ( i.e., the individual county schools are not separate legal entities). While the individual county school in this example may create and maintain a Web site, like in any other matter involving that school, it is a county entity that is ultimately legally responsible for what happens in the individual school. In the 2010 ANPRM, the Department solicited public comment on whether it should consider different compliance requirements or a different timetable for small entities in order to reduce the impact on them as required by the RFA and Executive Order 13272. See 75 FR 43460, 43467 (July 26, 2010). Many disability organizations and individual commenters did not support having a different timetable or different accessibility requirements for smaller entities, stating that such a proposal would be confusing because people with disabilities would be uncertain about which Web sites they visit should be accessible and by when. Those commenters further emphasized that access to Web content of small entities is important and that many small entities have smaller Web sites with fewer Web pages, which would make compliance easier and therefore require fewer resources. Commenters opposing different timetables or accessibility requirements for smaller entities also noted that small entities are protected from excessive burdens deriving from rigorous compliance dates or stringent accessibility standards by the ADA's undue burden compliance limitations. Many commenters, especially Web developers and those representing covered entities, stated that compliance in incremental timeframes would be helpful in allowing covered entities—especially smaller ones—to allocate resources (both financial and personnel) to bring their Web sites into compliance. These commenters noted that many small entities do not have a dedicated Web master or staff. Even when these small entities develop or maintain their own Web sites, commenters stated that they often do so with staff or volunteers who have only a cursory knowledge of Web design and merely use manufactured Web templates or software, which may not be accessible, to create Web pages. Additionally, even when small entities do use outside help, a few commenters expressed concern that there is likely to be a shortage of professionals who are proficient in Web accessibility to assist all covered entities in bringing their Web sites into compliance all at once. Some commenters also expressed concern that smaller entities would need to take down their Web sites because they would not be able to comply with the accessibility requirements. Accordingly, the Department is interested in receiving comment on whether “small public entities”—again those with a population of 50,000 or less—should have an additional year ( i.e., three years total) or other expanded timeframe to comply with the specific Web requirements the Department proposes. In addition to a longer timeline for compliance, the Department is considering whether to propose applying WCAG 2.0 Level A to certain very small public entities. As mentioned previously, in the 2010 ANPRM the Department asked for public comment regarding what compliance alternatives the Department should consider for small public entities. Comments received in response to the 2010 ANPRM indicate that many small public entities should be able to comply with Level A and Level AA Success Criteria and Conformance Requirements specified in WCAG 2.0. However, the Department is interested in public comment regarding whether it should consider applying a different WCAG 2.0 conformance level to very small public entities ( e.g., entities with populations below 2,500, 1,000, etc.) that may initially face more technical and resource challenges in complying than larger public entities. The Department seeks public comment on whether it should consider requiring WCAG 2.0 Level A conformance for very small public entities. In addition, the Department is interested in whether there are certain population thresholds within the category of small public entities or other criteria that should be used to define these very small public entities. Also, the Department is interested in public comment on whether there is a certain subset of very small public entities ( e.g., entities with populations below 500, 250, etc.) for which compliance with even Level A would be too burdensome and, thus, the Department should consider deferring compliance with WCAG 2.0 altogether at this time for those entities. WCAG 2.0 Level A does not include the requirement to provide captioning of live-audio content in synchronized media. However, were the Department to require WCAG 2.0 Level AA conformance for very small public entities, the Department is considering whether the requirement to provide captioning of live-audio content in synchronized media should be deferred for very small public entities. Also, the Department is considering whether the requirement to provide captioning of live-audio content in synchronized media should be deferred for all small public entities at this time. Question 10: Would the Department be correct to adopt the RFA's definition for a “small governmental jurisdiction” (i.e., governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000) as its population threshold for small public entities? Are there other definitions for “small governmental jurisdiction” the Department should consider using to define the population threshold for small public entities for purposes of this rulemaking? Please provide as much information as possible, including any supporting data for your views. Question 11: Are there technical and resource challenges that smaller entities might face in meeting Level AA conformance? At what level are small public entities currently providing accessibility on their Web sites? Do small public entities have internal staff to modify their Web sites, or do they utilize outside consulting staff to modify and maintain their Web sites? Are small public entities facing budget constraints that may impair their ability to comply with this regulation? Question 12: Are there other issues or considerations regarding the accessibility standard—WCAG 2.0 Level A Success Criteria and Conformance Requirements— that the Department is considering applying to Web sites and Web content of very small public entities that the Department should consider? Please provide as much detail as possible in your response. Question 13: If the Department were to apply a lower compliance standard to very small public entities (WCAG 2.0 Level A), what would be the appropriate population threshold or other appropriate criteria for defining that category? Should the Department consider factors other than population size, such as annual budget, when establishing different or tiered compliance requirements? If so, what should those factors be, why are they more appropriate than population size, and how should they be used to determine regulatory requirements? What would be the consequences for individuals with disabilities if the Department applied a lower compliance standard, WCAG 2.0 Level A, to very small public entities? Question 14: Would applying to very small public entities an effective date of three years after the publication of the final rule strike an appropriate balance of stakeholder interests? Why or why not? Should the Department consider a shorter or longer effective date for very small public entities? Please provide specific examples or data in support of your response. Question 15: Should the Department defer compliance with WCAG 2.0 altogether for a subset of very small public entities? Why or why not? If so, what would be the appropriate population threshold or other appropriate criteria for defining that subset of very small public entities? Should the Department consider factors other than population size, such as annual budget, when establishing the subset of public entities subject to deferral? If so, what should those factors be, why are they more appropriate than population size, and how should they be used to determine regulatory requirements? What would be the consequences to individuals with disabilities if the Department deferred compliance with WCAG 2.0 for a subset of very small public entities? Question 16: If the Department were not to apply a lower compliance standard to very small public entities (WCAG 2.0 Level A), should the Department consider a deferral of the requirement to provide captioning of live-audio content in synchronized media for very small public entities? Additionally, should the Department consider a deferral of the requirement to provide captioning of live-audio content in synchronized media for all small public entities? Why or why not? 2. Special Districts The Department is also interested in gathering information and comments on how it should frame the requirements for Web access for special district governments. For the purposes of the Department's rulemaking, a special district government is a public entity—other than a county, municipality, township, or independent school district—authorized by State law to provide one function or a limited number of designated functions with sufficient administrative and fiscal autonomy to qualify as a separate government and with a population that is not calculated by the United States Census Bureau in the most recent decennial Census or Small Area Income and Poverty Estimates. 4 The Department is considering whether special district governments should be required to meet a lower conformance standard, WCAG 2.0 Level A, and be allotted three years for compliance or another extended compliance date. 4 See U.S. Census Bureau, Lists and Structure of Governments: Population of Interest—Special Districts, available at https://www.census.gov/govs/go/special_district_governments.html (last visited Apr. 13, 2016). A lower conformance standard and a longer timeframe for compliance for special district governments may be appropriate for two reasons. First, because the U.S. Census Bureau does not provide population estimates for special district governments, it would be difficult for these limited-purpose public entities to obtain population estimates that are objective and reliable to determine their duties under any proposed rule that differentiates among public entities based on population size. While some special district governments may estimate their total populations, these entities may use varying methodologies to calculate population estimations leading to possible confusion and inconsistency in the application of the proposed accessibility requirements. Second, special district governments are generally formed to perform a single function or a very limited number of functions ( e.g., provide mosquito abatement or water and sewer services) and have more limited or specialized budgets. Therefore, the Department is interested in gathering information and comments regarding whether special district governments should comply with WCAG 2.0 Level A instead of Level AA. The Department is also interested in receiving comment on whether an extended date for compliance of three years for special district governments is warranted and necessary. Question 17: Are there technical and resource challenges that special districts might face in meeting Level AA conformance? At what level are special districts currently providing accessibility on their Web sites? Do special districts have internal staff to modify their Web sites, or do they utilize outside consulting staff to modify and maintain their Web sites? Are special districts facing budget constraints that may impair their ability to comply with a proposed regulation requiring compliance with Level AA? Question 18: Are there other issues or considerations regarding the accessibility standard—WCAG 2.0 Level A Success Criteria and Conformance Requirements— that the Department is considering applying to Web sites and Web content of special district governments that the Department should consider? Please provide as much detail as possible in your response. Question 19: Does the description of special district governments above make clear which public entities are captured by that category? Is there any additional information on calculating the populations of special district governments that the Department should consider? III. Exceptions to the Web Access Requirements In the 2010 ANPRM, the Department requested public comment on whether it should adopt certain coverage limitations when it develops its proposed ADA Web regulations. The Department was particularly interested in hearing about the challenges covered entities might face in making existing Web content accessible, whether it should except from any rule Web content posted by third parties, and whether it should except content on Web sites linked from the Web sites of public entities. Commenters that supported providing exceptions suggested that materials on the public entities' Web sites prior to the effective date of a regulation should not be subject to a Web access rule, as long as the materials are not subsequently modified or updated after any regulation becomes effective. These commenters believed that it would be burdensome to require public agencies to retroactively make all documents on their Web site accessible, noting that many of the outdated documents were hundreds of pages long and were scanned images. Several commenters requested that the Department except from any Web access rule links on public entities' Web sites to other Web sites unless either the public entities operate or control the other Web site or access to the linked content is important or necessary to participate in the public entities' services. Many commenters supported exceptions for Web content posted by third parties on public entities' Web sites and at least one commenter suggested that where practicable, public entities should make and publicize the availability of alternative accessible means for accessing the third-party Web content. On the other hand, a small number of comments—mostly from advocacy groups and private citizens—suggested that the title II regulation should not include any exceptions because the undue administrative and financial burdens compliance limitations would protect public entities from overly burdensome requirements resulting from such a regulation. Finally, a number of commenters urged the Department to require public entities to develop and deploy Web platforms ( i.e., a Web site framework with services, tools, and interfaces that enable users to interact with a Web site) that are accessible so that third parties would have the ability to make the Web content they post on public entities' Web sites accessible. After consideration of these comments and after conducting independent research, as described in more detail below, the Department is currently of the view that some exceptions to any Web access standards may be warranted and should therefore be part of any Department rulemaking. At this juncture, the Department is considering a number of categories of Web content for potential exceptions: (1) Archived Web content; (2) certain preexisting conventional electronic documents; (3) third-party Web content linked from a public entity's Web site; and (4) certain Web content posted by third parties on a public entity's Web site. A. Archived Web Content The Web sites of many public entities often include a significant amount of archived Web content, which may contain information that is outdated, superfluous, or replicated elsewhere. Generally, this historic information is of interest to only a small segment of the general population. Still, the information may be of interest to some members of the public, including some individuals with disabilities, who are conducting research or are otherwise interested in these historic documents. The Department is concerned, however, that public entities would need to expend considerable resources to retroactively make accessible the large quantity of historic information available on public entities' Web sites. Thus, the Department believes providing an exception from the Web access requirements for Web content that meets a definition it is considering proposing for “archived Web content” is appropriate. A proposed definition of “archived Web content” may look like the following: Archived Web content means Web content that: (1) Is maintained exclusively for reference, research, or recordkeeping; (2) is not altered or updated after the date of archiving; and (3) is organized and stored in a dedicated area or areas clearly identified as being archived. Under the proposal presently under consideration by the Department, in order for archived Web content to be excepted from the Web access requirements of any proposed rule, all three prongs of the definition would have to be satisfied. An archived Web content exception would allow public entities to keep and maintain historic Web content, while utilizing their resources to make accessible the many current and up-to-date materials that all citizens need to access for existing public services or to participate in civic life. As discussed below, despite any exception the Department might propose regarding archived Web content, individual requests for access to these excepted documents would still need to be addressed on a case-by-case basis in order to ensure that individuals with disabilities are able to receive the benefits or services of the public entity's archived Web content through other effective means. Under title II of the ADA, it is the responsibility of the public entity to make these documents accessible to individuals with disabilities, see generally, 42 U.S.C. 12132 and 28 CFR 35.160, and, “[i]n order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” 28 CFR 35.160(b)(2). Question 20: Is the definition the Department is considering for archived Web content appropriate? Question 21: Does the archived Web content definition and exception under consideration take into account how public entities manage outdated content on their Web sites? How often do individuals seek access to such documents and how long would it take public entities to provide these documents in an accessible format? Are there other issues that the Department should consider in formulating an archived Web content definition or an exception for archived materials on Web sites of public entities? B. Preexisting Conventional Electronic Documents The Department is considering excepting from any Web access rule, conventional electronic documents ( e.g., Microsoft Word documents) that exist on public entities' Web sites prior to the compliance date of any proposed rule (preexisting conventional electronic documents). In the past, documents created by or for a public entity were only available in traditional paper format; however, today most documents are created electronically via word processor software, such as Corel WordPerfect or Microsoft Word, or spreadsheet software, such as Corel Quattro Pro or Microsoft Excel. The Department's research indicates that most Web sites of public entities contain large amounts of current electronic documents that are intended to be used by members of the public in either an electronic form or as printed output, which are not suitable to be archived. The types of electronic documents can range from a single-page meeting notice containing only text to a comprehensive report containing text, images, charts, graphs, and maps. The majority of these electronic documents are in Adobe PDF format, but many electronic documents are formatted as word processor files ( e.g., Corel WordPerfect or Microsoft Word files), presentation files ( e.g., Apple Keynote or Microsoft PowerPoint files), spreadsheet files ( e.g., Corel Quattro Pro or Microsoft Excel files), and database files ( e.g., FileMaker Pro or Microsoft Access files). A proposed definition of “conventional electronic documents” may look like the following: Conventional electronic documents means electronic files available on a public entity's Web site that are in the following electronic file formats: portable document file (PDF) formats, word processor file formats, presentation file formats, spreadsheet file formats, and database file formats. Because of the substantial number of conventional electronic documents on public entities' Web sites, and because of the difficulty of remediating complex types of information and data to make them accessible after-the-fact, the Department is considering a proposal to except certain preexisting conventional electronic documents from the Web access requirements. The Department is considering such an exception because it believes covered entities should focus their limited personnel and financial resources on developing new conventional electronic documents that are accessible and remediating existing electronic documents that are used by members of the public to apply for or gain access to the public entity's services, programs, or activities. The Department believes this approach may reduce the burdens on covered entities but still provide Web access to key documents. An exception for “preexisting conventional electronic documents” could then provide the following: Conventional electronic documents created by or for a public entity that are available on a public entity's Web site before the date the public entity is required to comply with this rule are not required to comply with the Web access standards, unless such documents are to be used by members of the public to apply for, gain access to, or participate in a public entity's services, programs, or activities. Under such a proposal, the Department would anticipate requiring any preexisting document to be used by members of the public to apply for or gain access to the public entity's services, programs, or activities, including documents that provide instructions or guidance, would also need to be made accessible. For example, a public entity would not only need to make an application for a business license accessible, but it would also need to make accessible other materials that may be needed to obtain the license, complete the application, understand the process, or otherwise take part in the program. Accordingly, documents necessary to understand the process of obtaining the business license, such as business license application instructions, manuals, sample knowledge tests, and guides, such as “Questions and Answers” documents, would also be required to be accessible under such an exception. However, the Department believes that under such a proposal, if the public entity's Web site has the same information contained in multiple conventional electronic documents, the Department would expect that the public entity should only be required to ensure that a single complete set of instructions or guidance be available in an accessible format on the Web. Question 22: Would such a definition and exception under consideration make clear the types of documents needed to apply for or gain access to services, programs, or activities? If some versions of documents are accessible and others are not, should the Department require that accessible documents be labeled as such? Are there other issues that the Department should take into consideration with regard to a proposed exception for conventional electronic documents? C. Third-Party Web Content The Department received a variety of comments regarding whether or not covered entities should be responsible for ensuring that third-party Web content and Web content public entities link to is accessible. For purposes of the proposals under consideration herein, “third party” refers to someone other than the public entity. Many commenters maintained that covered entities cannot be held accountable for third-party content on their Web sites because many entities do not control such content. A number of commenters also suggested that public entities be responsible for providing a platform that would allow users to post accessible content, but the public entities should not be responsible for guaranteeing the accessibility of the resulting user-generated content. Several commenters suggested that covered entities should not be responsible for third-party content and links unless they are necessary for individuals to access the services, programs, or activities of the public entities. A number of commenters expressed the view, however, that covered entities should be responsible for all third-party content. These commenters stated that the boundaries between Web content generated by a covered entity and a third party are often difficult to discern and cited the undue burden defense as a factor favoring coverage of third-party content. Additionally, these commenters took the position that excluding the Web content of these third parties was a “loophole” to providing full access and that covered entities must be responsible for the content on their Web site, regardless of its origin. After considering these comments, the Department is considering proposing certain limited exceptions related to third-party content. It is important to note, however, that even if the Department were to except Web content posted by third parties on public entities' Web sites, the Department is considering proposing that public entities would still be responsible for ensuring that the platforms they provide for posting third-party Web content comply with any Web access rule. 1. Linked Third-Party Web Content Many public entities' Web sites include links to other Web sites that contain information or resources in the community offered by third parties that are not affiliated with the public entity. Clicking on one of these links will take an individual away from the public entity's Web site and send the individual to the Web site of a third party. Typically, the public entity has no responsibility for the Web content or the operation of the third party's Web site. The Department is considering proposing an exception to a Web access rule so that a public entity would not be responsible for the accessibility of a third-party Web site or Web content linked from the public entity's Web site unless the public entity uses the third-party Web sites or Web content to allow members of the public to participate in or benefit from its services, programs, or activities. A proposed exception may look like the following: Third-party Web content linked from the public entity's Web site is not required to comply with the Web access standards unless the public entity uses the third-party Web site or Web content to allow members of the public to participate in or benefit from the public entity's services, programs, or activities. Such an exception generally would allow public entities to provide relevant links to third-party Web sites or Web content that may be helpful without making them liable for the third party's Web content. However, the Department's title II regulation prohibits discrimination in the provision of any aid, benefit, or service provided by public entities directly or through contractual, licensing, or other arrangements. See generally 28 CFR 35.130(b)(1). Therefore, if a public entity uses the third-party Web site or Web content to allow members of the public to participate in or benefit from its services, programs, or activities, under any exception the Department may propose the public entity would be required to use third-party Web sites or Web content that comply with the Web access requirements of a final rule. Thus, a public entity that uses online payment processing services offered by a third party to accept the payment of fees, parking tickets, or taxes would be required to ensure that the third-party Web site and Web content complies with the Web access requirements. Similarly, if a public entity contracts or otherwise uses a third party to process applications for benefits, to sign up for classes, or to attend programs the public entity offers, the public entity would be required to ensure that the third party's Web site and Web content complies with the Web access rule. On the other hand, if a public entity provides a link to third-party Web content for informational or resource purposes only, then access by constituents is not required in order to participate in the public entity's services, programs, or activities, and the linked third-party Web content would not be required to be accessible. Question 23: Are there additional issues that the Department should take into consideration with regard to linked third-party Web content? Has the Department made clear which linked third-party Web content it is considering covering and which linked third-party Web content the Department is considering excepting from coverage under a proposed rule? Why or why not? 2. Web Content Posted by a Third Party The Department is considering generally excepting Web content posted by third parties on public entities' Web sites from compliance with WCAG 2.0 Level AA. However, the Department is considering requiring Web content posted by a third party that is essential for engaging in civic participation to comply with WCAG 2.0 Level AA. The basis for this exception is that a public entity generally does not have control over the volume or substance of content posted by a third party on the public entity's Web site. To the extent that any content is reviewed by the public entity before it is posted, such review often is cursory or limited to automated pre-screening to prevent fraud, abusive language, or spamming. Public entities may not even be aware of when third parties post content on the public entities' Web sites. Where the posting of third-party Web content occurs in such an automated fashion, without notice to the public entity, the public entity may lack the practical capacity under these circumstances to make such material accessible. The Department believes, however, that there are times when access to content posted by third parties on a public entity's Web site may be so essential for engaging in civic participation that the public entity should be required to make the Web content accessible. An example of third-party content which the Department would consider essential to engaging in civic participation is when a State seeks formal public comment on a proposed regulation and those comments are posted on the State Web site. Often the period for public comment is time sensitive, transparency is crucial, and a State will review and consider all such comments in finalizing its regulation. As such, it is vitally important that individuals with disabilities have access to that Web content, whether for framing their own comments, raising important points, reviewing and responding to comments posted by others, or evaluating the basis for the State's ultimate decision. The Department notes that Web content created by a third party that a public entity decides to post itself would still be subject to WCAG 2.0 Level AA. The Department believes that a public entity should be responsible for Web content that it posts on its own initiative, even if the content is originally created or authored by a third party. In addition, if the Department were to except Web content posted by third parties as above, such an exception would provide public entities with a greater ability to direct their resources toward ensuring that the Web content the public entities themselves make available to the public is accessible. Question 24: The Department intends the phrase “content posted by a third party on a public entity's Web site” to mean content that a third party creates and elects to make available on the public entity's Web site. Does the Department's use of the term “posted” in this context create confusion, and if so, is there another term that would be more appropriate for purposes of this exception? Question 25: The Department requests public comment on whether the Department's rule should except from coverage almost all Web content posted by third parties on public entities' Web sites. The Department is also interested in obtaining information about what type of Web content is posted by third parties on Web sites of public entities (e.g., whether it contains only text, or includes images, videos, audio content, and other forms of media)? Question 26: How much content is posted by third parties on public entities' Web sites and how frequently? Please provide as much information as possible, including any supporting data. Question 27: To what extent are public entities on notice of postings by third parties on their Web sites? To what extent do public entities affirmatively decide what, or how much, third-party Web content can be posted on their Web sites? If public entities do affirmatively decide what, or how much, third-party Web content to post on their Web sites, please describe how that process works and what factors public entities consider when making such decisions? Question 28: What Web content posted by third parties do you consider essential to access in order to engage in civic participation? Is “essential for engaging in civic participation” the appropriate standard for determining whether Web content posted by third parties needs to be made accessible to individuals with disabilities? Please provide as much information as possible, including any supporting material for your views. Question 29: What factors should the Department consider when framing the obligation for public entities to make accessible the Web content posted by third parties that is essential for engaging in civic participation? Please provide as much information as possible, including any supporting data. Question 30: Is there other third-party Web content that, while not essential for engaging in civic participation, the public entity controls and should not be included within such an exception? How would the Department define that control? How would the Department measure and evaluate that control? Why, in your view, should that third-party Web content be excluded from any such exception? Please provide as much information as possible, including any supporting data. Question 31: If the Department adopts an exception along the lines currently under consideration, will it prevent constituents with disabilities from accessing important information on public entities' Web sites concerning public entities' services, programs, or activities? Please provide as much information as possible, including any supporting data for your views. Question 32: Are there other issues that the Department should take into consideration with regard to the exception under consideration? 3. Third-Party Filings in Judicial and Quasi-Judicial Administrative Proceedings While access to third-party filings in judicial and quasi-judicial administrative proceedings would seemingly fit within the category of information essential to access in order to engage in civic participation, the Department is considering including these types of filings within the exception for third-party content posted on a public entity's Web site. Courts and administrative agencies can receive vast amounts of third-party filings ( i.e., filings made by third parties, not by public entities) in these types of proceedings each year. Some public entities have either implemented an automated process for electronic filing of court documents in legal proceedings via their Web sites or are now beginning to require such a process. After these documents are submitted, some public entities make the electronic record of a case or administrative adjudicatory proceeding available on their Web sites. These conventional electronic documents, submitted by third parties, often include lengthy appendices, exhibits, or other similar supplementary materials that may not be accessible. For example, in a court proceeding, a litigant may submit a brief and exhibits in support of the brief. The exhibits can include a variety of materials ( e.g., a written contract, a receipt, a handwritten note, a photograph, a map, or a schematic drawing of a building) to provide support for the propositions asserted in the brief. Items, such as maps or schematic drawings, are inherently visual and cannot easily be made accessible or, in some instances, cannot be made completely accessible. Even when submissions are purely textual documents that are created electronically using word processing software, which can be made accessible easily, the submission may not be in compliance with the accessibility standards contemplated by the Department for its proposed rule, WCAG 2.0 Level AA, if the author of the document did not format the document correctly. Because of the sheer volume of documents public entities receive from third parties in these judicial proceedings and quasi-judicial administrative proceedings, the Department is concerned that it would not be practical to make public entities responsible for ensuring that these kinds of filings by third parties are accessible. Moreover, the need for immediate access to these kinds of documents may generally be confined to a small group, such as parties to a particular proceeding. However, if the Department were to include within the exception from any Web access requirements third-party filings in judicial proceedings or quasi-judicial administrative proceedings, the Department would make clear that individual requests for access to these excepted documents would need to be addressed on a case-by-case basis in order to ensure that individuals with disabilities are able to receive the benefits or services of the public entity's records program through other effective means. Under title II, it is the responsibility of the public entity that is making the electronic record available to the public to also make these documents accessible to individuals with disabilities. In some instances, third parties that create or submit individual documents may also have an independent obligation to make these documents accessible to individuals with disabilities. However, that independent obligation would not extinguish the duty of public entities under such a proposed exception to provide alternative access to third-party documents that are posted on their Web sites to individuals with disabilities that request access to them. As noted earlier, the current ADA regulation states that “[i]n order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” 28 CFR 35.160(b)(2) (emphasis added). Because of the nature of legal proceedings, it is imperative that individuals with disabilities be provided timely access to the documents to which they request access so that they can take part in the legal process in a manner equal to that afforded to others. The Department seeks public comment on the exception it is considering and has posed several questions. Question 33: On average, how many third-party submissions in judicial proceedings or quasi-judicial administrative proceedings does a public entity receive each week or each month? How much staff do public entities have available with the expertise to make such documents accessible? How many staff hours would need to be devoted to making such documents accessible? Please provide as much information as possible, including any supporting data. Has the Department made clear that if an exception were to provide that this content would not need to be made accessible on a public entity's Web site, public entities would continue to have obligations under the current title II requirements to make individual documents accessible to an individual with a disability on a case-by-case basis? If not, why not? Question 34: The Department is also interested in obtaining information about what types of third-party Web content in judicial and quasi-judicial administrative proceedings are posted on public entities' Web sites (e.g., how much of it is text, how much contains images, videos, audio content, or other forms of media)? Please provide as much information as possible, including any supporting data. Question 35: If the Department adopts an exception along the lines currently under consideration, will it prevent citizens with disabilities from accessing important information concerning public entities' services, programs, or activities on public entities' Web sites? Please provide as much information as possible, including any supporting data for your views. Question 36: Are there other issues or other factors that the Department should take into consideration with regard to this proposal regarding third-party filings in judicial and quasi-judicial administrative proceedings? 4. Third-Party Social Media Platforms Public entities are increasingly using third-party platforms, including social media platforms, to host forums for public discourse or to provide information about their services, programs, and activities in lieu of or in addition to hosting such forums and information on their own Web sites. At this time, the Department is considering deferring, in any proposed rule for Web access for public entities, proposing a specific technical accessibility standard that would apply to public entities' use of third-party social media platforms until the Department issues a rulemaking for public accommodations addressing Web site accessibility under title III. For the purposes of this possible deferral, third-party social media platforms would refer to Web sites of third parties whose primary purpose is to enable users to create and share content in order to participate in social networking ( i.e., the creation and maintenance of personal and business relationships online through Web sites such as, for example, Facebook, YouTube, Twitter, and LinkedIn). The only social media platforms that the Department is aware of are public accommodations covered by title III, thus, the Department believes it may be appropriate to defer addressing social media platforms for this title II rulemaking until it issues a proposed title III Web accessibility regulation. Although the Department is considering deferring application of a technical standard to third-party social media Web sites that public entities use to provide services, programs, or activities, public entities would continue to have obligations under title II of the ADA to provide persons with disabilities access to these online services, programs, or activities. Under title II, a public entity must ensure that “[n]o qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity,” and must refrain from using methods of administration that would subject qualified individuals with disabilities to discrimination on the basis of disability. See 35 CFR 35.130(a) and 35.130(b)(3). Thus, when using a third-party social media Web site to implement its services, programs, or activities, a public entity is required to ensure access to that content for individuals with disabilities through other means. For example, if a public entity publishes information about an upcoming event on a third-party social media Web site, it must ensure that the same information about the event is also available to individuals with disabilities elsewhere, such as on the public entity's accessible Web site. Likewise, if a public entity solicits public feedback on an issue via a social media platform, the public entity must provide an alternative way to invite and receive feedback from person with disabilities on that topic. Question 37: Are there any social media platforms that are covered by title II of the ADA that the Department should be aware of? Please provide as much information as possible in your response. Question 38: Please provide any other information or issues that the Department should consider with regard to a proposal to defer applying a technical standard to public entities' use of social media Web sites. D. Password-Protected Web Content of Public Educational Institutions Public educational institutions ( i.e., public elementary and secondary schools and public postsecondary institutions), like many other public institutions, use their Web sites to provide a variety of services, programs, and activities to members of the public. Many of the services, programs, and activities on these Web sites are available to anyone—access simply requires an Internet connection and the relevant Web site address, which can be obtained using a search engine. The content on these public Web sites can include such general information as the academic calendar, enrollment process, admission requirements, school lunch menus, school policies and procedures, and contact information of school, college, or university administrators. Under the Web access rule under consideration by the Department, all such services, programs, or activities available to the public on the Web sites of public educational institutions would be required to comply with the technical standards the Department adopts. In addition to the information available to the general public on the Web sites of public educational institutions, however, the Web sites of many schools, colleges, and universities also make certain services, programs, and activities available to a discrete and targeted audience of individuals ( e.g., students taking particular classes or courses). This information is often provided using a Learning Management System (LMS) or similar platform that can provide secure online access and allow the exchange of educational and administrative information in real time. LMSs allow public educational institutions and institutions' faculty and staff to exchange with students specific information about the course, class, or student's progress. For example, faculty and staff can create and collect assignments, post grades, provide real-time feedback, and share subject-specific media, documents, and other resources to supplement and enrich the curriculum. Parents can track their children's attendance, assignments, individualized education programs (IEPs), grades, and upcoming class events. To access the information available on these platforms, students—and parents in certain contexts—generally must obtain password or login credentials from the educational institution. Under the ADA, public entities are prohibited from providing any aid, benefit, or service directly, or through contracting, that discriminates against individuals with disabilities. See 28 CFR 35.130(b). The Department is therefore considering proposing a provision that would require that the LMS or other educational platforms that public elementary and secondary schools, colleges, and universities use be readily accessible in accordance with a Web access rule. However, because access to password-protected class or course Web content is limited to a discrete population, which may not always include a person with a disability, the Department is also considering a provision that would not require the content available on these password-protected class or course pages to be made accessible unless and until a student with a disability enrolls in such a class or course. For example, a blind university student may not have enrolled in a psychology course, or a deaf high school student may not have enrolled in a particular ninth grade world history class. As such, the Department is considering a proposal to except content available on password-protected Web sites for specific classes or courses unless and until a student enrolls in that particular class or course and, because of a disability, that student would be unable to access the content posted on the password-protected Web site for that class or course. However, under the proposal under consideration by the Department, once a student with a disability has enrolled in a particular class or course, the content available on the password-protected Web site for the specific class or course would need to be made accessible in a timely manner. The Department is also concerned about the rights of parents with disabilities, particularly in the public elementary and secondary school context. Because parents of students in these contexts have greater rights, roles, and responsibilities with regard to their children and their children's education than may be present in the postsecondary education setting, and because these parents interact with such schools much more and in much greater depth and detail, the Department currently is considering expressly including parents with disabilities in any proposed exception and subsequent limitation for password-protected Web content. (The Department notes that the term “parent” in any proposed regulation would be intended to include, at present, natural, adoptive, step-, or foster parents, legal guardians, or other individuals recognized under Federal or State law as having parental rights.) Parents use educational platforms to access progress reports and grades, track homework and long-term project assignments, interact regularly with their children's teachers and administrators, and follow IEP plans and progress. Thus, under the proposal currently under consideration by the Department, once a student is enrolled in a particular class or course and that student has a parent with a disability, the content available on the password-protected Web site would also be required to be made accessible in a timely manner. Public educational institutions are required to make the appropriate modifications and provide the necessary auxiliary aids and services to students with disabilities. It is the public institution, not the student, that is responsible for ensuring that the required modifications are made and necessary auxiliary aids and services are provided once it is on notice of a student's need. Such institutions, therefore, must think prospectively regarding the access needs of its students with disabilities, including those who would be unable to access course content on an inaccessible Web site. This also means that institutions should not expect or require that a student with a disability, whom the institution knows is unable to access content on an inaccessible Web site, first attempt to access the information and be unable to do so before the institution's obligation to make the content accessible arises. The Department believes that considering a proposal for public educational institutions along these lines would provide a balanced approach, ensuring access to students with disabilities enrolled in a public educational institution while recognizing that there are large amounts of class or course content that may never need to be accessed by individuals with disabilities because they have not enrolled in a particular class or course. The exception under consideration by the Department is not intended to apply to password-protected content for classes or courses, that are made available to the general public without enrolling at a particular educational institution and that generally only require perfunctory, if any, registration or payment to participate in the classes or courses, including those offered exclusively online ( e.g., many Massive Open Online Courses (MOOCs)). Access to the content on these password-protected Web sites is not confined to a discrete student population within an educational institution, but is instead widely available to the general public—sometimes without limits as to enrollment. Accordingly, any individual, including one with a disability, may enroll or participate at almost any time. Under these circumstances, it is the Department's position that the public entity should make such class or course content accessible from the outset of the class or course regardless of whether a student with a disability is known to be participating in the class or course because a student with a disability, like any other student, may enroll at any time. The Department seeks public comment on a number of issues implicated by the proposed exception that the Department is considering for public educational institutions' password-protected Web content. Question 39: Does the Department's exception, as contemplated, take into account how public educational institutions use password-protected Web content? What kinds of tasks are students with disabilities or parents with disabilities performing on public educational institutions' Web sites? Question 40: How do public educational institutions communicate general information to their student bodies and how do they communicate class- or course-specific information to their students via Web sites? Question 41: On average, how much and what type of content do password-protected course Web sites contain? How much time does it take a public entity to make the content on a password-protected course Web site accessible? Once a public educational institution is on notice that a student is enrolled in a class or course, how much time should a public educational institution be given to make the content on a password-protected course Web site accessible? How much delay in accessing course content can a student reasonably overcome in order to have an equal opportunity to succeed in a course? Question 42: Do public elementary or secondary schools combine and make available content for all students in a particular grade or particular classes (e.g., all ninth graders in a school or all secondary students taking chemistry in the same semester) using a single password-protected Web site? Question 43: Is the Department's proposed terminology to explain who it considers to be a parent in the educational context clear? If not, why not? If alternate terminology is appropriate, please provide that terminology and data to support your position that an alternate term should be used. Question 44: Should the Department require that password-protected Web content be accessible to parents with disabilities who have a postsecondary student enrolled in a particular class or course? Question 45: How and when do public postsecondary educational institutions receive notice that a student who, because of a disability, would be unable to access content on an inaccessible Web site is newly enrolled in a school, class, or course? Question 46: When are public elementary and secondary students generally assigned or enrolled in classes or courses? For all but new students to a public elementary or secondary school, does such enrollment generally occur in the previous semester? If not, when do such enrollments and assignments generally occur? Question 47: Are there other factors the Department should consider with regard to password-protected Web content of public educational institutions? Please provide as much detail as possible in your response. IV. Conforming Alternate Versions The Department is considering allowing the use of conforming alternate versions to provide access to Web content for individuals with disabilities in two limited circumstances that are discussed below. In order to comply with WCAG 2.0, Web content must satisfy one of the defined levels of conformance ( i.e., Level A, Level AA, or Level AAA) or a separate accessible Web page must be provided that satisfies one of the defined levels of conformance as an alternative to the inaccessible Web page. These separate accessible Web pages are referred to as “conforming alternate versions” in WCAG 2.0. WCAG 2.0 describes “conforming alternate version” as a separate Web page that is accessible, up-to-date, contains the same information and functionality as the inaccessible Web page, and, therefore, can provide individuals with disabilities equivalent access to the information and functionality provided to individuals without disabilities. See W3C®, Understanding WCAG 2.0: Understanding Conforming Alternate Versions (Dec. 2012), available at http://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-conforming-alt-versions-head (last visited Apr. 13, 2016). The W3C® explains that providing a conforming alternate version of a Web page is intended to be a “fallback option for conformance to WCAG and the preferred method of conformance is to make all content directly ac [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-10464. Public record. Not legal advice.