Information and Communication Technology (ICT) Standards and Guidelines

ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD

36 CFR Parts 1193 and 1194

RIN 3014-AA37

Information and Communication Technology (ICT) Standards and Guidelines

AGENCY:

Architectural and Transportation Barriers Compliance Board.

ACTION:

Final rule.

SUMMARY:

We, the Architectural and Transportation Barriers Compliance Board (Access Board or Board), are revising and updating, in a single rulemaking, our standards for electronic and information technology developed, procured, maintained, or used by Federal agencies covered by section 508 of the Rehabilitation Act of 1973, as well as our guidelines for telecommunications equipment and customer premises equipment covered by Section 255 of the Communications Act of 1934. The revisions and updates to the section 508-based standards and section 255-based guidelines are intended to ensure that information and communication technology covered by the respective statutes is accessible to and usable by individuals with disabilities.

DATES:

This final rule is effective March 20, 2017. However, compliance with the section 508-based standards is not required until January 18, 2018. Compliance with the section 255-based guidelines is not required until the guidelines are adopted by the Federal Communications Commission. The incorporation by reference of certain publications listed in the final rule is approved by the Director of the Federal Register as of March 20, 2017.

FOR FURTHER INFORMATION CONTACT:

Timothy Creagan, Access Board, 1331 F Street NW., Suite 1000, Washington, DC 20004-1111. Telephone: (202) 272-0016 (voice) or (202) 272-0074 (TTY). Or Bruce Bailey, Access Board, 1331 F Street NW., Suite 1000, Washington, DC 20004-1111. Telephone: (202) 272-0024 (voice) or (202) 272-0070 (TTY) Email addresses:

508@access-board.gov.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose and Legal Authority

In this final rule, the Access Board is updating its existing Electronic and Information Technology Accessibility Standards under section 508 of the Rehabilitation Act of 1973, (“508 Standards”), as well as our Telecommunications Act Accessibility Guidelines under Section 255 of the Communications Act of 1934 (“255 Guidelines”). Given the passage of nearly two decades since their issuance, the existing 508 Standards and 255 Guidelines are in need of a “refresh” in several important respects. This final rule is intended to, among other things, address advances in information and communication technology that have occurred since the guidelines and standards were issued in 1998 and 2000 respectively, harmonize with accessibility standards developed by standards organizations worldwide in recent years, and ensure consistency with the Board's regulations that have been promulgated since the late 1990s. The Revised 508 Standards and 255 Guidelines support the access needs of individuals with disabilities, while also taking into account the costs of providing accessible information and communication technology to Federal agencies, as well as manufacturers of telecommunications equipment and customer premises equipment.

The final rule also reflects a significantly revamped organizational structure relative to the existing standards and guidelines. In sum, the final rule eliminates 36 CFR part 1193 (which formerly housed the existing 255 Guidelines) and substantially revises 36 CFR 1194 by replacing the existing 508 Standards with two regulatory provisions—§§ 1194.1 and 1194.2—that direct readers to the four appendices accompanying part 1194, which, in turn, set forth the scoping and technical requirements for the Revised 508 Standards and 255 Guidelines. Appendix A provides general application and scoping for Section 508, while Appendix B does likewise for Section 255. Appendix C contains seven separate chapters setting forth the functional performance criteria and technical accessibility standards that apply to both 508-covered and 255-covered ICT. These chapters are, generally speaking, broken down by functional area (

e.g.,

functional performance criteria, hardware, software, support documentation and services). Lastly, Appendix D republishes the existing 508 Standards, which, as discussed below, may be needed to evaluate Section 508-covered existing (legacy) ICT under the safe harbor provision.

In this preamble, the Board refers to provisions in the Revised 508 Standards and 255 Guidelines by their new section numbers under this final rule: E101-E103 (508 Chapter 1: Application and Administration); E201-E208 (508 Chapter 2: Scoping Requirements); C101-C103 (255 Chapter 1: Application and Administration); C201-C206 (255 Chapter 2: Scoping Requirements); 301-302 (Chapter 3: Functional Performance Criteria); 401-415 (Chapter 4: Hardware); 501-504 (Chapter 5: Software); 601-603 (Support Documentation and Services); and 701-702 (Chapter 7: Referenced Standards).

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

1. Legal Authority for the Revised 508 Standards

Section 508 of the Rehabilitation Act of 1973 (hereafter, “Section 508”), as amended, mandates that Federal agencies “develop, procure, maintain, or use” ICT in a manner that ensures Federal employees with disabilities have comparable access to, and use of, such information and data relative to other Federal employees, unless doing so would impose an undue burden. 29 U.S.C. 794d. Section 508 also requires Federal agencies to ensure that members of the public with disabilities have comparable access to publicly-available information and services unless doing so would impose an undue burden on the agency.

Id.

In accordance with section 508(a)(2)(A), the Access Board must publish standards that define electronic and information technology along with the technical and functional performance criteria necessary for accessibility, and periodically review and amend the standards as appropriate. When the Board revises its existing 508 Standards (whether to keep up with technological changes or otherwise), Section 508 mandates that, within six months, both the Federal Acquisition Regulatory Council (FAR Council) and Federal agencies incorporate these revised standards into their respective acquisition regulations and procurement policies and directives. Thus, with respect to procurement-related matters, the Access Board's 508 Standards are not self-enforcing; rather, these standards take legal effect when adopted by the FAR Council.

2. Legal Authority for 255 Guidelines

Section 255 of the Communications Act (hereafter, “Section 255”), requires telecommunications equipment and services to be accessible to, and usable by, individuals with disabilities, where readily achievable. 47 U.S.C. 255. “Readily achievable” is defined in the statute as “easily accomplishable and able to be carried out without much difficulty or expense.”

Id.

In determining whether an access feature is readily achievable, the Federal Communications Commission (FCC), which has exclusive implementation and enforcement authority under Section 255, has directed telecommunications equipment manufacturers and service providers to weigh the nature and cost of that feature against the individual company's overall financial resources, taking into account such factors as the type, size, and nature of its business operation. Section 255 tasks the Access Board, in conjunction with the FCC, with the development of guidelines for the accessibility of telecommunications equipment and customer premises equipment, as well as their periodic review and update. The FCC, however, has exclusive authority under Section 255 to issue implementing regulations and carry out enforcement activities. Moreover, when issuing implementing regulations, the FCC is not bound to adopt the Access Board's guidelines as its own or to use them as minimum requirements.

B. Summary of Key Provisions

The Revised 508 Standards and 255 Guidelines replace the current product-based regulatory approach with an approach based on ICT functions. The revised technical requirements, which are organized along the lines of ICT functionality, provide requirements to ensure that covered hardware, software, electronic content, and support documentation and services are accessible to people with disabilities. In addition, the revised requirements include functional performance criteria, which are outcome-based provisions that apply in two limited instances: When the technical requirements do not address one or more features of ICT or when evaluation of an alternative design or technology is needed under equivalent facilitation.

Some of the key provisions and updates reflected in the Revised 508 Standards and 255 Guidelines (relative to the existing standards and guidelines) include:

1. New Regulatory Approach and Format

Technological advances over the past two decades have resulted in the widespread use of multifunction devices that called into question the ongoing utility of the product-by-product approach used in the Board's existing 508 Standards and 255 Guidelines. Consequently, one of the primary purposes of the final rule is to replace the current product-based approach with requirements based on functionality, and, thereby, ensure that accessibility for people with disabilities keeps pace with advances in ICT. To ensure that compliance under both laws, to the maximum extent possible, can be measured against a common set of technical requirements, the implementing regulations have been consolidated into a single part: 36 CFR part 1194. The two sections in this part (§§ 1194.1 and 1194.2), in turn, direct readers to the four separate appendices (Appendices A-D) that set forth the scoping and technical requirements under Sections 508 and 255, respectively. As discussed below, this is a new organizational format for the 508 Standards and 255 Guidelines that mirrors the formatting of other standards and guidelines issued by the Access Board over the past decade.

The new organizational format in the Revised 508 Standards and 255 Guidelines—which sets forth scoping and technical requirements in four appendices—is modeled after the regulatory approach first used Access Board's 2004 Americans with Disabilities Act (ADA) and Architectural Barriers Act (ABA) Accessibility Guidelines. Appendix A applies only to Section 508-covered ICT and consists of 508 Chapter 1, which sets forth general application and administration provisions, while 508 Chapter 2 contains scoping requirements (which, in turn, prescribe which ICT—and, in some cases, how many—must comply with the technical specifications). Appendix B, which applies to 255-covered ICT only, is organized similarly with 255 Chapter 1 setting forth general application and administration provisions and 255 Chapter 2 containing scoping requirements. Appendix C sets forth technical specifications that apply equally to ICT covered under Sections 508 or 255. Appendix C includes five chapters, each of which (with the exception of the final chapter) address a separate ICT functional area. These chapters are: Chapter 3: Functional Performance Criteria; Chapter 4: Hardware; Chapter 5: Software; Chapter 6: Support Documentation and Services; and Chapter 7: Referenced Standards. Lastly, in Appendix D, the existing 508 Standards are republished in full (albeit with a revised section numbering system) for reference when evaluating Section 508-covered existing (legacy) ICT under the “safe harbor” provision.

See

discussion

infra

Section IV.B (Summary of Comments and Responses on Other Aspects of the Proposed Rule—508 Chapter 2: Scoping Requirements—E202 General Exceptions).

2. Broad Application of Web Content Accessibility Guidelines 2.0

The Revised 508 Standards and 255 Guidelines incorporate by reference the Web Content Accessibility Guidelines (WCAG) 2.0, a globally-recognized and technologically-neutral set of accessibility guidelines for Web content. For Section 508-covered ICT, all covered Web and non-Web content and software—including, for example, Web sites, intranets, word processing documents, portable document format documents, and project management software—is required, with a few specific exceptions, to conform to WCAG 2.0's Level A and Level AA Success Criteria and Conformance Requirements. By applying a single set of requirements to Web sites, electronic documents, and software, the revised requirements adapt the existing 508 Standards to reflect the newer multifunction technologies (

e.g.,

smartphones that have telecommunications functions, video cameras, and computer-like data processing capabilities) and address the accessibility challenges that these technologies pose for individuals with disabilities. For Section 255-covered ICT, electronic content and software that is integral to the use of telecommunications and customer premise equipment is required to conform to WCAG 2.0's Level A and Level AA Success Criteria and Conformance Requirements. There are several exceptions related to non-Web documents and software.

3. Harmonization With International Standards

From the outset, one of the Access Board's primary goals in this rulemaking has been to increase harmonization with international standards relating to ICT accessibility that have been developed worldwide over the past decade. Some of these standards (such as WCAG 2.0) are incorporated by reference in the Revised 508 Standards and 255 Guidelines. For other standards (such as EN 301 549, which is the European accessibility

standard for public ICT procurement), harmonization comes in the form of ensuring that the relevant accessibility specifications in such standard and the final rule can both be met simultaneously without conflict. Harmonization with international standards and guidelines creates a larger marketplace for accessibility solutions, thereby attracting more offerings and increasing the likelihood of commercial availability of accessible ICT options.

4. Delineation of Covered Electronic “Content”

The Revised 508 Standards specify that all types of public-facing content, as well as nine categories of non-public-facing content that communicate agency official business, have to be accessible, with “content” encompassing all forms of electronic information and data. The existing standards require Federal agencies to make electronic information and data accessible, but do not delineate clearly the scope of covered information and data. As a result, document accessibility has been inconsistent across Federal agencies. By focusing on public-facing content and certain types of agency official communications that are not public facing, the revised requirements bring needed clarity to the scope of electronic content covered by the 508 Standards and, thereby, help Federal agencies make electronic content accessible more consistently.

5. Expanded Interoperability Requirements

The existing standards require ICT to be compatible with assistive technology—that is, hardware or software that increases or maintains functional capabilities of individuals with disabilities (

e.g.,

screen magnifiers or refreshable braille displays). However, in the past the existing requirement resulted in ambiguity of application. For example, some agencies interpreted the provisions of existing 36 CFR 1194.21 (which addresses software applications and operating systems) as applicable to assistive technology itself. The ensuing confusion led, in some cases, to unnecessary delay in procurements intended to provide reasonable accommodations to employees under Section 501, creating a hardship for both agencies and their employees with disabilities. The final rule provides more specificity about how operating systems, software development toolkits, and software applications should interact with assistive technology. The final rule also specifically exempts assistive technology from the interoperability provisions. The Board expects the final rule to improve software interoperability with assistive technology, allowing users better access to the functionalities that ICT products provide.

6. Extended Compliance Date and Incorporation of Safe Harbor Provision for Section 508-Covered Legacy ICT

Federal agencies will have one year from publication of this final rule to comply with the Revised 508 Standards. This extended period for compliance is responsive to some agencies' concerns about the time it will take them to make ICT compliant with the Revised 508 Standards. In addition, the Revised 508 Standards include a “safe harbor” provision for existing (

i.e.,

legacy) ICT. Under this safe harbor, unaltered, existing ICT (including content) that complies with the existing 508 Standards need not be modified or upgraded to conform to the Revised 508 Standards. This safe harbor applies on an element-by-element basis in that each component or portion of existing ICT is assessed separately. Corresponding definitions have also been added for “existing ICT” and “alteration.” By incorporating a safe harbor for legacy ICT into the Revised 508 Standards provision, the Board is being responsive to agencies' concerns about the potential resources required to remediate existing ICT, including agency Web sites or other public-facing legacy documents. Notably, the extended compliance date and safe harbor provision apply only to Section 508-covered ICT; these provisions do not apply to telecommunications equipment and customer premises equipment covered by Section 255. Since compliance with the Revised 255 Guidelines is not required unless and until they are adopted by the FCC, matters addressed in these two provisions fall within the commission's province.

C. Summary of Final Regulatory Impact Analysis

Consistent with the obligation under Executive Orders 12866 and 13563 that Federal agencies promulgate regulations only upon a reasoned determination that benefits justify costs, the final rule has been evaluated from a benefit-cost perspective in a final regulatory impact analysis (Final RIA) prepared by the Board's consulting economic firm. The focus of the Final RIA is to define and, where possible, quantify and monetize the potential incremental benefits and costs of the Revised 508 Standards and 255 Guidelines. We summarize its methodology and results below. A complete copy of this regulatory assessment is available on the Access Board's Web site (

https://www.access-board.gov/

), and also on the Federal Government's online rulemaking portal (

https://www.regulations.gov/

).

To estimate likely incremental compliance costs attributable to the final rule, the Final RIA estimates, quantifies, and monetizes costs in the following broad areas: (1) Costs to Federal agencies and contractors related to policy development, employee training, development of accessible ICT, evaluation of ICT, and creation of accessible electronic documents; (2) costs to Federal agencies of ensuring that speech-output enabled hardware with closed functionality has braille instructions (

e.g.,

small braille label or sign) indicating how to initiate the speech mode of operation; and (3) costs to manufacturers of telecommunications equipment and customer premises equipment of ensuring that their respective Web sites and electronic support documentation conform to accessibility standards, including WCAG 2.0.

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

Table 1 below summarizes the results from the Final RIA with respect to the likely monetized benefits and costs, on an annualized basis, from the Revised 508 Standards and 255 Guidelines. All monetized benefits and costs are incremental to the applicable baseline, and were estimated for a 10-year time horizon (starting in 2018 since the final rule requires Federal agencies to comply one year after its publication) and converted to annualized values using discount rates of 7 and 3 percent. Three scenarios of incremental benefits and costs are presented using alternative

parameters that are assumptions-based. These scenarios include: A low net benefit scenario (using parameters which results in lower benefits and higher costs), an expected scenario (consisting of expected values for assumed parameters), and a high net benefit scenario (using parameters which results in higher benefits and lower costs).

Table 1—Annualized Value of Monetized Benefits and Costs Under the Final Rule, 2018-2027

[In 2017 dollars]

Type of benefits or costs

Scenario

7%

Discount rate

(in millions)

3%

Discount rate

(in millions)

Monetized incremental benefits to Federal agencies and members of the public with certain disabilities (under Revised 508 Standards)

Low Net Benefit Scenario

Expected Scenario

$32.0

72.4

$34.0

77.0

High Net Benefit Scenario

187.4

199.0

Monetized incremental costs to Federal agencies (under Revised 508 Standards)

Low Net Benefit Scenario

276.2

287.4

Expected Scenario

172.8

181.1

High Net Benefit Scenario

111.5

117.2

Monetized incremental costs to telecommunications equipment and CPE manufacturers (under Revised 255 Guidelines)

Low Net Benefit Scenario

Expected Scenario

9.5

9.5

9.6

9.6

High Net Benefit Scenario

9.5

9.6

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

Moreover, American companies that manufacture telecommunications equipment and ICT-related products will likely derive significant benefits from the Access Board's concerted efforts to harmonize the accessibility requirements in the Revised 508 Standards and 255 Guidelines with voluntary consensus standards. Given the relative lack of existing national and globally-recognized standards for accessibility of mobile technologies, telecommunications equipment manufacturers will, we believe, greatly benefit from harmonization of the Revised 255 Guidelines with consensus standards. Similar benefits will likely accrue more generally to manufacturers of all ICT-related products as a result of harmonization.

It is also equally important to note that some potentially substantial incremental costs arising from the final rule are not evaluated in the Final RIA, either because such costs could not be quantified or monetized (due to lack of data or for other methodological reasons) or are inherently qualitative. For example, due to lack of information, the Final RIA does not assess the cost impact of new or revised requirements in the Revised 255 Guidelines on computer and telecommunications equipment manufacturers. A more in-depth discussion of the Final RIA can be found in Section V.A (Regulatory Process Matters—Final Regulatory Impact Analysis).

II. Rulemaking History

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

The Access Board issued the existing 255 Guidelines for telecommunications equipment and customer premises equipment in 1998. Telecommunications Act Accessibility Guidelines, 63 FR 5608 (Feb. 3, 1998) (codified at 36 CFR part 1193). Two years later, in 2000, the Board published the existing 508 Standards. Electronic and Information Technology Accessibility Standards, 65 FR 80499 (Dec. 21, 2000) (codified at 36 CFR part 1194). In this preamble, all citations to 36 CFR part 1193 refer to the existing 255 Guidelines in force since 1998, while all citations to 36 CFR part 1194 refer to the existing 508 Standards in force since 2000.

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

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

B. TEITAC Advisory Committee (2006-2008)

In the years following our initial promulgation of the existing 508

Standards and 255 Guidelines, technology has continued to evolve at a rapid pace. Pursuant to our statutory mandate, the Access Board deemed it necessary and appropriate to review and update the existing 508 Standards and 255 Guidelines in order to make them consistent with one another and reflective of technological changes. In 2006, the Board formed the Telecommunications and Electronic and Information Technology Advisory Committee (hereafter, “TEITAC Advisory Committee”) to assist in the process of revising and updating the existing 508 Standards and 255 Guidelines.

See

Notice of Establishment, 71 FR 38324 (July 6, 2006). The TEITAC Advisory Committee's 41 members comprised a broad cross-section of stakeholders representing industry, disability groups, and Government agencies. This Advisory Committee also included international representatives from the European Commission, Canada, Australia, and Japan. The TEITAC Advisory Committee recognized the importance of standardization across markets worldwide and coordinated its work with standard-setting bodies in the U.S. and abroad, such as the World Wide Web Consortium (W3C®), and with the European Commission. The TEITAC Advisory Committee addressed a range of issues, including new or convergent technologies, market forces, and international harmonization.

In April 2008, the TEITAC Advisory Committee issued its final report to the Access Board (hereafter, “TEITAC Report”).

See

Advisory Committee Report, U.S. Access Board (Apr. 2008),

http://www.access-board.gov/teitac-report

(last accessed Aug. 23, 2016). This TEITAC Report provided a set of recommended updates to the existing 508 Standards and 255 Guidelines, which, the committee noted, were intended to balance two competing considerations: The need for clear and specific standards that facilitate compliance, and the recognition that static standards “consisting of design specification[s] and fixed checklists” would tend to “stifle innovation” and “delay the availability of technology advancements to people with disabilities.”

Id.

at Section 1. To address these considerations, the TEITAC Advisory Committee recommended that the Access Board jettison its existing product-based regulatory approach in favor of technical requirements to achieve accessibility based on ICT functions or features.

Id.

The Committee also noted the importance of harmonizing with international standards to both spur development of accessible ICT products and reduce manufacturers' costs in the global market.

Id.

at Sections 4 & 4.3. To that end, the Committee worked to harmonize its recommendations with the then-draft WCAG 2.0.

Id.

at Sections 4.3 & 8.2. All told, the TEITAC Report provided a comprehensive recommended set of technical requirements applicable to a broad range of ICT functions and features, including: Closed functionality; hardware with and without speech output; user interfaces; electronic content; processing and display of captions and audio description; RTT; authoring tools; and, product support documentation and services.

C. First Advance Notice of Proposed Rulemaking (2010)

1. General

Following publication of the TEITAC Report, the Access Board worked to develop a proposed rule that would “refresh” the existing its existing 508 Standards and 255 Guidelines. In March 2010, we issued an Advance Notice of Proposed Rulemaking (2010 ANPRM) inviting public comment on an initial set of draft revisions to the standards and guidelines.

See

Advance Notice of Proposed Rulemaking, 75 FR 13457 (proposed Mar. 22, 2010);

see also

Draft Information and Communication Technology (ICT) Standards and Guidelines, U.S. Access Board,

https://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-ict-refresh/background/draft-rule-2010

(last accessed Aug. 23, 2016).

In sum, the 2010 ANPRM proposed a set of accessibility requirements that largely tracked the TEITAC Report's recommendations. While the majority of the proposed requirements in the draft rule were not substantively changed from the existing 508 Standards and 255 Guidelines, there were some notable proposed substantive revisions. Two of the most significant were the proposals to require that Federal agencies make electronic content of specified official communications accessible, and to harmonize with WCAG 2.0 by restating the Level AA Success Criteria and Conformance Requirements in regulatory (mandatory) terms in the draft rule. Additionally, the 2010 ANPRM—in keeping with the TEITAC Report—also sought to substantially update the structure and organization of the existing regulations. In the draft rule, the proposed standards and guidelines shared a common set of functional performance criteria (Chapter 2) and technical design criteria (Chapters 3-10), but had separate introductory chapters (Chapters 1 and 2), which outlined the respective scoping, application, and definitions for the revised 508 Standards and 255 Guidelines.

2. Public Hearings and Comments

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

In general, commenters agreed with our approach to addressing the accessibility of ICT through functionality rather than discrete product types. Commenters also expressed strong support for our efforts to update the existing 508 Standards and 255 Guidelines, as well as our decision to follow the TEITAC Advisory Committee's recommendation to require harmonization with WCAG 2.0. However, many commenters expressed concern that the 2010 ANPRM was not user-friendly,

e.g.,

that it was too long (at close to 100 pages), organized in a confusing manner, and suffered from some internal inconsistencies. For example, commenters noted confusion by virtue of the fact that some chapters focused on functional features of accessibility while others addressed specific types of technology, or that the meaning of “ICT” seemed to vary depending on the context of the specific chapter. Other commenters opined that deviations from WCAG 2.0 phrasing in the draft rule created ambiguities, particularly for those well familiar with WCAG 2.0.

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

1. General

By the following year, in 2011, the Access Board was poised to invite public comment on a revised version of the draft rule. The Board acknowledged that, based on comments to the 2010 ANPRM, the draft rule needed to be reorganized and made more concise. More importantly, we needed to obtain further comment on major issues and harmonize with the European Commission's ICT standardization

efforts that were already underway at that time. Consequently, the Board issued a second Advance Notice of Proposed Rulemaking (2011 ANPRM).

See

Advance Notice of Proposed Rulemaking, 76 FR 76640 (proposed Dec. 8, 2011); Draft Updated Standards and Guidelines (2011), U.S. Access Board,

https://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-ict-refresh/draft-rule-2011.

In the 2011 ANPRM, the Access Board substantially revamped the structure and organization of the draft rule. To address comments criticizing the length and organization of the 2010 ANPRM as unwieldy, the revised draft rule consolidated and streamlined provisions into six chapters (from ten), consolidated advisories, and reduced the page count from close to 100 to less than 50. We also made revisions to improve the clarity of various proposed provisions and ensure a consistent organizational structure throughout this draft rule.

See, e.g.,

U.S. Access Board, Information and Communication Technology Standards and Guidelines; Proposed Rule (NPRM), 80 FR 10880, 10884-93 (Feb. 27, 2015) (providing detailed comparison of 2010 and 2011 ANPRMs). Additionally, to address commenters' collective concern that rephrasing of WCAG 2.0 requirements introduced ambiguities, the revised draft rule proposed to apply WCAG 2.0's requirements through incorporation by reference rather than restating its requirements in the technical provisions for Web and non-Web content, documents, and user applications.

In issuing the 2011 ANPRM, the Access Board also took notice of the standardization work going on in Europe at the time, stating:

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

2011 ANPRM, 76 FR at 76642.

2. Public Hearings and Comments

Hearings were held in January 2012 in Washington, DC and in March 2012 in San Diego, CA. Additionally, 91 written comments were received in response to the 2011 ANPRM. Comments came from industry, Federal and state governments, foreign and domestic companies specializing in information technology, disability advocacy groups, manufacturers of hardware and software, trade associations and trade organizations, institutions of higher education and research, accessibility consultants, assistive technology industry and related organizations, and individual stakeholders who did not identify with any of these groups.

In general, commenters continued to agree with our approach to address ICT accessibility by focusing on features, rather than discrete product types. Commenters supported the conciseness of the proposed provisions in the 2011 ANPRM, and asked for further streamlining where possible. Commenters also generally voiced strong support for the Board's decision to incorporate by reference WCAG 2.0 and apply it to all types of covered ICT; several commenters did, however, question the propriety of applying WCAG 2.0 to non-Web ICT.

E. Notice of Proposed Rulemaking (2015 NPRM)

1. General

In 2015, the Access Board formally commenced the rulemaking process by issuing a notice of proposed rulemaking to update the existing 508 Standards and 255 Guidelines.

See

Notice of Proposed Rulemaking; Information and Communication Technology Standards and Guidelines, 80 FR 10879 (proposed Feb. 27, 2015) (hereinafter, NPRM). This proposed rule—while making editorial changes and other updates in response to comments on the 2011 ANPRM—retained the same overall structure and approach to referencing WCAG 2.0.

2. Hearings and Comments

Hearings were held on March 5, 2015 in San Diego, CA, on March 11, 2015 in Washington, DC, and April 29, 2015 in Salt Lake City, UT. Additionally, 137 written comments were received in response to the NPRM. Comments came from industry, Federal and state governments, disability advocacy groups, manufacturers of hardware and software, trade associations and trade organizations, institutions of higher education and research, and individuals who did not identify with any of these groups.

Overall, we received about 160 comments in response to the NPRM, including written comments and oral testimony from witnesses at the three public hearings. These commenters represented, when excluding multiple submissions, about 140 different entities or individuals. By general category, these NPRM commenters can be broken down as follows: Individuals (59); disability advocacy organizations (59); ICT companies (10); accessible ICT services providers (11); trade associations representing ITC and telecommunications companies (11); individuals or groups identifying themselves as ICT subject matter experts (13); academicians (6); state or local governmental agencies (7); standards development organizations (3); international disability advocacy organizations (9); and, anonymous (4).

In general, commenters spoke positively about the proposed rule, and noted that it was much improved from earlier iterations in the 2010 and 2011 ANPRMs. By a wide margin, the single most commented-upon aspect of the proposed rule (and the issue on which commenters expressed the greatest unanimity) was timing. Characterizing refresh of the 508 Standards and 255 Guidelines as “long overdue,” these commenters urged the Access Board to issue its final rule as expeditiously as possible. On substantive matters, a large number of commenters addressed some aspect of the requirements for electronic content, with the bulk of these comments relating to Section 508-covered content. Another technical area receiving sizeable comment was our proposal that, under both Sections 508 and 255, WCAG 2.0 and PDF/UA-1 serve as the referenced technical standards for accessibility of electronic content, hardware, software, and support documentation and services. Additionally, real-time text (RTT) was a subject of great interest to NPRM commenters, with most commenters representing disability advocacy organizations and academicians supporting the Board's RTT proposal, while ITC manufacturers and trade groups expressed opposition. Further, the issue of harmonization with EN 301 549 received considerable comment. In general, ITC industry-related commenters urged the Board to harmonize more closely with this European specification. Disability advocacy organizations and consumer-related commenters, on the other hand, viewed the proposed rule and EN 301 549 as well harmonized already and expressed concern that further harmonization would be improvident because, in their view, EN 301 549 set forth weaker accessibility requirements in some areas.

Lastly, the Board received multiple comments from individuals or entities addressing various types of electromagnetic sensitivities. These commenters requested that the final rule require accommodations for people with electromagnetic intolerances, so that they might use Federal buildings and Federally-funded facilities. The Board acknowledges the challenges faced by

individuals with electromagnetic sensitivities, and notes that electromagnetic sensitivities may be considered a disability under the ADA if the sensitivity so severely impairs the neurological, respiratory, or other functions of an individual that it substantially limits one or more of the individual's major life activities. However, most of the accommodations suggested by these commenters are beyond the scope of this rulemaking or our statutory jurisdiction. Moreover, none of our prior rulemaking notices (

i.e.,

2010 ANPRM, 2011 ANPRM, and NPRM) proposed technical specifications relating to electromagnetic sensitivities. Thus, were the Board to address electromagnetic sensitivity issues posed by ITC, this complex area would require thorough research and notice-and-comment rulemaking before being addressed through rulemaking.

F. Harmonization With European Activities

1. History

While the Access Board was in the process of updating its existing 508 Standards and 255 Guidelines, a similar process began in Europe to create the first European set of ICT accessibility standards. As a result of the 2005 EU-US Economic Initiative, the Access Board and the European Commission began to work closely on the issue of Information and Communication Technology standards.

See, e.g.,

European Comm., Implementation of the Economic Initiative of the June 2005 EU-US Summit: Joint EU-US Work Programme (Nov. 2005),

available at http://trade.ec.europa.eu/doclib/docs/2006/june/tradoc_127643.pdf.

In 2005, the European Commission issued Mandate 376, which sought the assistance of several private European standards organizations in the development of European accessibility guidelines for public ICT procurements.

See

European Comm., M 376—Standardisation Mandate to CEN, CENELEC, and ETSI in Support of European Accessibility Requirements for Public Procurement of Products and Services in the ICT Domain (Dec. 7, 2005),

available at http://www.etsi.org/WebSite/document/aboutETSI/EC_Mandates/m376en.pdf.

Specifically, Mandate 376 requested that the three European standards setting bodies—European Committee for Standardization (CEN), European Committee for Electrotechnical Standardization (CENELEC) and the European Telecommunications Standards Institute (ETSI)—perform two main tasks: Development of a set of functional European accessibility requirements for public procurement of ICT products and services; and creation of an electronic toolkit for use by public procurers.

In early 2014, the three European standardization organizations completed their development process by formally adopting and publishing the first European set of specifications on e-accessibility for public ICT procurements, EN 301 549.

See

ETSI/CEN/CENELEC, EN 301 549 V1.1.1 (2014-02), Accessibility Requirements Suitable for Public Procurement of ICT Products and Services in Europe (Feb. 2014),

available at http://www.etsi.org/deliver/etsi_en/301500_301599/301549/01.01.01_60/en_301549v010101p.pdf.

1

The functional accessibility requirements specified in EN 301 549 are “closely harmonized” with the then-current draft revisions Section 508 Standards (

i.e.,

the 2011 ANPRM). Accessible ICT Procurement Toolkit—Frequently Asked Questions, Mandate 376,

http://mandate376.standards.eu/frequently-asked-questions#difference

(last accessed Aug. 23, 2016). Unlike the 508 Standards, however, EN 301 549—by its own terms—establishes only non-binding, voluntary accessibility requirements for public ICT procurements.

Id.

1

Subsequently, in 2015, the three European standards bodies issued an updated version of EN 301 549, which contained minor editorial changes only relative to the 2014 version.

See

ETSI/CEN/CENELEC, EN 301 549 V1.1.2 (2015-04), Accessibility Requirements Suitable for Public Procurement of ICT Products and Services in Europe (Apr. 2015),

available at http://www.etsi.org/deliver/etsi_en/301500_301599/301549/01.01.02_60/en_301549v010102p.pdf.

In October 2016, the European Parliament and Council of the European Union issued Directive 2016/2102, which generally requires EU member states to “ensure that public sector bodies take the necessary measures to make their Web sites and mobile applications more accessible [to persons with disabilities] by making them perceivable, operable, understandable and robust.” Directive 2016/2102 on the Accessibility of the Web sites and Mobile Applications of Public Sector Bodies, Article 4 (Oct. 26, 2016),

available at http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016L2102&from=EN.

Directive 2016/2102 further provides that, as a general matter, EN 301 549 V1.1.2 (2015-04) serves as the relevant accessibility standard absent future adoption of technical standards or publication of references to harmonized standards by the European Commission.

Id.

at Article 6. EN 301 549 is thus now available to government officials in EU member states who may use it as technical specifications or award criteria in public procurements of ICT products and services.

2. Comparison of Final Rule With EN 301 549

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

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

Table 2—Formatting Differences Between the Final Rule and EN 301 549

Differences

EN 301 549 V1.1.2 (2015-04)

Final Rule

Number of chapters

13

6

Note: EN 301 549 breaks out several sections as separate chapters which are combined in the Board's final rule

Chapter 2—References

Chapter 3—Definitions and Abbreviations

Chapter 1- Scope

Chapter 1—Application and Administration.

Chapter 2—Scoping Requirements.

Chapter 9—Web (lists each WCAG 2.0 Level AA success criteria)

We use incorporation by reference to include the WCAG 2.0 Level AA success criteria.

Chapter 10—non-Web Documents (lists each success criteria in WCAG 2.0 Level AA using non-Web phrasing as needed. “Empty clause” is used for the four problematic success criteria, to align sub-provision numbering with other chapters.)

For non-Web documents, we are explicit with the word substitution necessary, and provide an exception for the four problematic success criteria.

Chapter 4—Functional Performance

Chapter 3—Functional Performance Criteria.

Chapter 5—Generic requirements (

e.g.,

closed functionality, biometrics, operable parts)

Chapter 4—Hardware

Chapter 6—ICT with two-way voice communications

Chapter 7—ICT with video capabilities

Chapter 8—Hardware

Chapter 11—Software

Chapter 5—Software

Chapter 12—Documentation and support services

Chapter 6—Support Documentation and Services

Unique chapters

Chapter 13—ICT providing relay or emergency services

No comparable chapter.

Annex A (informative)—WCAG 2.0

No comparable chapter. We are using incorporation by reference, and not reprinting the entire standard.

Annex B (informative)—Relationships between requirements and functional performance statements

No comparable chapter. Similar comparisons are found in the TEITAC Report.

Annex C (normative)—Determination of compliance

Not within the scope of Section 508 or Section 255, Section 508 compliance is determined by each Federal agency.

Section 8.3.2 Clear floor or ground space

Section 8.3.2.1 Change in level

Section 8.3.2.2 Clear floor or ground space

Not within the scope of Section 508 or Section 255.

Most similar to “303 Changes in Level” and “305 Clear Floor or Ground Space” from the 2010 ADA Standards for Accessible Design.

Differing treatment of similar concepts

Section 6.2 Real-time text (RTT) functionality

412.5 Real-Time Text Functionality is reserved.

6.5 Video communication

412.7 Video Communication.

Their 6.5 is a prescriptive standard while our 412.7 is a performance standard.

III. Major Issues

A. 508 Standards: Covered Electronic Content

The NPRM delineated specific types of electronic content that Federal agencies would need to make accessible consistent with the technical requirements of the proposed rule. As explained in the NPRM, the Board proposed these provisions to further clarify the requirement in the existing 508 Standards that Federal agencies make electronic information and data accessible to employees and members of the public. NPRM, 80 FR 10880, 10893 (Feb. 27, 2015). The Board noted confusion over what type of content was covered under the broad language of the existing 508 Standards, and the difficulty that Federal agencies displayed in effectively meeting their obligations to provide accessible electronic content.

Id.

The NPRM specifically proposed that two discrete groups of content be covered by the refresh of the 508 Standards. First, in proposed E205.2, the Board proposed that all public-facing content comply with applicable technical requirements for accessibility. Public-facing content refers to electronic information and data that a Federal agency makes available directly to the general public. NPRM, 80 FR at 10893. The requirement to make accessible public-facing content is discussed below in Section IV.B. (Summary of Comments and Responses on Other Aspects of the Proposed Rule—508 Chapter 2: Scoping Requirements—E205.4) of this preamble. Second, in proposed E205.3, the Board proposed that non-public-facing electronic content covered by the 508 Standards be limited to the following eight categories of official agency communications: (1) Emergency notifications; (2) initial or final decisions adjudicating an administrative claim or proceeding; (3) internal or external program or policy announcements; (4) notices of benefits, program eligibility, employment opportunity, or personnel action; (5) formal acknowledgements of receipt; (6) survey questionnaires; (7) templates and forms; and (8) educational and training materials.

We sought comment in the NPRM on whether the proposed eight categories of non-public-facing content were sufficiently clear, and whether they provided sufficient accessibility without unnecessarily burdening agencies.

Id.

at 10894. The Board further requested comment on whether a ninth category for “widely disseminated” electronic content should be included in the final rule.

Id.

Nine commenters responded to the proposed provision regarding non-public-facing electronic content (proposed E205.3). Commenters included two Federal agencies, one

state/local agency, one disability advocacy organization, one accessible ICT services provider, two ICT subject matter experts, and two individuals.

In general, commenters agreed with the proposed approach requiring that only certain categories of non-public-facing content be made accessible, and most commenters found the categories to be sufficiently clear. One commenter, a state/local agency, objected to the Access Board's statement in the preamble of the NPRM that only “final electronic documents that are ready for distribution” would be subject to accessibility requirements under proposed E205.3, and indicated that documents in all stages of preparation should be covered. NPRM, 80 FR at 10894. Another commenter, an ICT subject matter expert, requested clarification of the internal and external program and policy announcements category and suggested including an additional category for announcements sent to all employees. An accessible ICT services provider was the only commenter to object to the eight categories, finding them too confusing and too difficult to implement. That commenter preferred that the requirement for accessibility of non-public-facing content be tied to the extent of the content's distribution, and suggested that any document distributed to 50 or more individuals be made accessible.

Three other commenters responded to the NPRM's question five as to whether a “widely disseminated” category should be added.

Id.

at 10895. One Federal agency opposed inclusion of this category, asserting that it would cause confusion. One ICT subject matter expert and one Federal agency generally liked the idea of such a category, but acknowledged that definitional challenges would make it difficult to implement.

The Federal agency supporting inclusion of the “widely disseminated” category indicated that the eight proposed categories would not sufficiently encompass the internal Web pages available to employees, and suggested that the problem could be solved with the addition of a ninth category for internal Web pages. This commenter asserted that without such a category for internal Web pages, agencies would need to develop systems to categorize internal Web page content, ensure that employees with disabilities could navigate to the covered content, and find a way to create an integrated accessible experience across internal Web sites where some content is accessible and some is not.

Upon careful consideration of the comments, we have decided to retain the proposed eight categories in the final rule and have added a ninth category for intranet content, as described below. Most commenters concurred with the proposed approach providing categories for non-public-facing content, and indicated that the categories were clearly described. The Board, therefore, finds no reason to alter the eight proposed categories, and has retained them, as proposed, in the final rule. However, the Board did not intend for the use of these categories to exclude some intranet content; all intranet content is currently covered under the existing 508 Standards. 36 CFR 1194.22 (providing technical requirements for “[W]eb-based intranet . . . information and applications”). Therefore, in the final rule, the Board has added a ninth category to final E205.3, requiring that “intranet content designed as a Web page” also conform to accessibility requirements to ensure that the final rule does not inadvertently result in a reduction in accessible intranet content. The Board agrees with commenters that a “widely disseminated” standard would be difficult to define and implement in a consistent manner across agencies, and would likely cause confusion. The Board thus declines to add such a category to the final rule.

B. Application of WCAG 2.0 to Non-Web ICT

The NPRM proposed to apply WCAG 2.0 equally to both Web and non-Web documents and software. NPRM, 80 FR at 10880. A discussion of the scoping of these requirements under the Revised 508 Standards and 255 Guidelines can be found below in Section IV.B (Summary of Comments and Responses on Other Aspects of the Proposed Rule -508 Chapter 2: Scoping Requirements) and Section IV.D (Summary of Comments and Responses on Other Aspects of the Proposed Rule—255 Chapter 2: Scoping Requirements). In the NPRM preamble, we explained that applying WCAG 2.0 “outside the Web browser environment not only ensures greater accessibility for persons with disabilities, but also minimizes the incremental burden on regulated entities by simplifying compliance through incorporation of a technologically neutral consensus standard.”

Id.

at 10895.

Since the establishment of the TEITAC Advisory Committee, the general consensus has been that the success criteria in WCAG 2.0 provided sufficient requirements to address the accessibility of non-Web documents and non-Web software applications.

Id.

In the TEITAC Report and the 2010 ANPRM, the Board restated and recast each WCAG 2.0 success criterion using phrasing appropriate for non-Web documents and software. 2010 ANPRM, 75 FR at 13457.

In response to concerns raised by commenters, in the 2011 ANPRM the Board proposed to incorporate by reference WCAG 2.0 and proposed a direct reference to WCAG 2.0 for non-Web content and software, instead of rewriting each criterion. 2011 ANPRM, 76 FR at 76640. This approach stimulated the formation of an industry ad hoc working group aimed at determining the practicality of using WCAG 2.0 for this purpose. This working group analyzed each WCAG 2.0 Success Criterion to determine its suitability for application to non-Web documents and software. W3C® Web Accessibility Initiative, W3C® Working Group Note—Guidance on Applying WCAG 2.0 to Non-Web Information and Communications Technologies (Sept. 5, 2013),

https://www.w3.org/TR/wcag2ict/.

The working group determined that of the 38 Level A and Level AA Success Criteria in WCAG 2.0, 26 do not include Web-related terminology that would cause the reader to question whether they are applicable to non-Web documents and non-Web software.

Id.

Therefore, these Success Criteria can be applied directly as written to non-Web documents and software. Of the remaining 12 Success Criteria, the working group found that 8 could be applied as written if certain Web-specific terms or phrases,

e.g.,

“Web page” are replaced with non-Web-specific terms or phrases,

e.g.,

“non-Web documents” and “non-Web software.”

Id.

The remaining four Success Criteria posed problems in being applied to non-Web content because they refer to “sets of Web pages.”

Id.

Applying these four criterion to non-Web documents and software would require interpretation that could inadvertently change the meaning of the requirements.

Id.

In their report, the working group concluded that circumstances in which those four Success Criteria could be applied outside the context of Web content would be “extremely rare.”

Id.

Relying on the working group's findings, in the NPRM the Board proposed to directly apply WCAG 2.0 to all non-Web documents and software. NPRM, 80 FR at 10895. Sixteen commenters responded to the proposal of applying WCAG 2.0 to non-Web content. Six commenters (five ICT companies and trade associations, and an ICT subject matter expert) strongly

advocated for returning to the previous approach of reprinting three variants of WCAG 2.0 in the 508 Standards and rewriting the requirements with non-Web specific terminology. These commenters asserted that agencies would not be able to consistently apply the WCAG 2.0 success criteria to non-Web documents without separate chapters. They were also concerned that by incorporating WCAG 2.0 by reference, conformity assessment would become a single check-off item in that agencies would not ensure compliance with each success criteria unless they were specifically laid out in the regulatory text. Ten commenters (four disability advocacy organizations, three academics, two individuals, and one ICT company) generally supported applying WCAG 2.0 to non-Web content. One of these commenters explained that referencing WCAG 2.0 as a whole is not problematic because as a single standard, one must comply with all of the provisions to comply with the standard. This commenter explained that there is much overlap between Web and non-Web content, for example an eBook is a document that also has Web components, software, and media. This incorporation of WCAG 2.0 for non-Web content as well as Web content allows the user to evaluate all content with one standard.

Based on the comments received and the findings of the working group, we have decided that agencies are better served by 508 Standards that incorporate WCAG 2.0 by reference than they would be if the final rule were to contain three different versions of WCAG 2.0 for Web content, non-Web documents, and non-Web software. The value of a single standard cannot be underestimated. We attempted to restate the WCAG 2.0 criteria in the 2010 ANPRM, and the approach was widely criticized by commenters. Therefore, in the final rule we retain the approach proposed in the NPRM of incorporating by reference WCAG 2.0 for non-Web documents and non-Web software.

To address concerns expressed by some commenters and the working group regarding the application of a few WCAG 2.0 Success Criteria to non-Web documents and non-Web software, in the final rule we have excepted non-Web documents and non-Web software from compliance with these criteria. Specifically, non-Web documents and non-Web software need not comply with WCAG 2.0 Success Criteria 2.4.1 Bypass Blocks, 2.4.5 Multiple Ways, 3.2.3 Consistent Navigation, and 3.2.4 Consistent Identification. Additionally, we added new provisions to instruct the reader when applying WCAG 2.0 to non-Web documents and non-Web software to replace the term “Web page” with the term “document” or “software.” We added this exception and new provisions where applicable throughout the final rule text. (E205.4, E205.2.1, E207.2, E207.2.1, C203.1, C203.2.1, C205.2, 501.1, 504.2, 504.3, 504.4, and 602.3).

C. Incorporation by Reference of PDF/UA-1

The NPRM proposed to incorporate by reference (IBR) PDF/UA-1 and allow compliance with this standard as an alternative to compliance with WCAG 2.0. This proposal was in response to commenters to the 2010 and 2011 ANPRMs that asserted that PDF/UA-1 was an international accessibility standard intended for developers using PDF writing and processing software. These commenters asserted that the use of PDF/UA-1 would provide definitive terms and requirements for accessibility in PDF documents and applications that generate PDFs. The Board was persuaded by these comments and proposed to incorporate PDF/UA-1 by reference in the NPRM (proposed E102.6 and C102.6). The Board included it as an alternative to compliance with WCAG 2.0 for electronic content and support documentation for both the 508 Standards and the 255 Guidelines (proposed E205.4, C203.1, and 602.3). By including alternative compliance with PDF/UA-1, the Board intended to give agencies flexibility in meeting accessibility requirements for PDFs. This approach assumed that PDF/UA-1 was fully sufficient to meet the accessibility requirements of PDF users with disabilities.

Ten commenters addressed the proposal to allow conformance with PDF/UA-1 as an alternative to WCAG 2.0. Three commenters, two ICT companies and one accessible ICT services provider, explained that the PDF/UA-1 standard has limitations and does not include requirements for contrast, embedded videos, captioning, or other related requirements for the accessibility of multimedia. These commenters recommended requiring conformance with provisions of WCAG 2.0 in addition to compliance with PDF/UA-1, to ensure that PDF documents are fully accessible. Four commenters (one Federal agency and three ICT companies and trade associations) also noted the shortcomings of PDF/UA-1 as an alternative to WCAG 2.0 conformance and recommended removing the proposed alternative from the final rule. These commenters recommended that the Board instead indicate in an advisory that use of PDF/UA-1 is a method of achieving conformance to WCAG 2.0. The Federal agency commenter explained that the PDF/UA-1 standard is copyrighted, expensive, and the format is not easy for subject matter experts to work with. Additionally, this commenter explained that the WCAG 2.0 guidelines are sufficient to communicate accessibility conformance. The remaining commenters (two individuals and a disability advocacy organization) recommended clarification of the application of the proposed standard to non-Web documents and asserted a preference for requiring HTML documents instead of accessible PDFs, noting that accessible PDFs are not as useful as HTML documents.

The Board is persuaded by the majority of commenters that PDF/UA-1 should not serve as a referenced accessibility standard for electronic content and support documentation in the final rule. The intent of the proposed IBR of PDF/UA-1 in the NPRM was to make conformance assessment of PDF documents easier, assuming that, in the future, PDF/UA-1 would become widely adopted. WCAG 2.0 strongly informed the development of PDF/UA-1. With the exception of the contrast requirement, PDF/UA-1 includes most accessibility requirements relevant to the PDF format, including textual equivalence for static graphical elements. However, PDF/UA-1 does not address scripting or the use of PDF files as a container for video. Therefore, the end user would still have to reference WCAG 2.0 for some requirements to ensure that a PDF file is fully accessible. Because WCAG 2.0 can be used as a sole standard for PDF compliance, and PDF/UA-1 cannot, the Board finds WCAG 2.0 to be appropriate as the sole standard for PDF files. Therefore, in the final rule, we have removed the reference to PDF/UA-1 from E205.4, C203.1, and 602.3. It is important to note, however, that even without this reference, PDF/UA-1 can still be useful to agencies conducting assessments of PDF files to ensure WCAG 2.0 conformance.

Although we have decided not to include PDF/UA-1 in the final rule as an alternate conformance standard for PDF, we have determined that PDF/UA-1 remains an appropriate standard for authoring tools. Therefore, in the final rule, we added a new provision expressly specifying that authoring tools capable of exporting PDF files must conform to PDF 1.7 (the current standard for PDF, also referred to as ISO 32000-1) and be capable of exporting PDF files that conform to PDF/UA-1 (final 504.2.2). This provision is

discussed in more detail in Section IV. (Summary of Comments and Responses on Other Aspects of the Proposed Rule).

D. Real-Time Text

The NPRM proposed to require that ICT providing real-time voice communication support real-time text (RTT) functionality and ensure the compatibility of multiline displays and features capable of text generation. (proposed 410.6). More importantly, the NPRM sought to ensure the interoperability of RTT across platforms. To accomplish this goal, the NPRM proposed to incorporate by reference specific standards for RTT interoperability in certain environments typically used in the United States (proposed E102.5, E102.8.1, C102.5, and C102.8.1). The NPRM proposed that when ICT interoperates with Voice over Internet Protocol (VoIP) products or systems using Session Initiation Protocol (SIP), the transmission of RTT must conform to the Internet Engineering Task Force's RFC 4103 standard for RTP Payload for Text Conversation. Where ICT interoperates with the Public Switched Telephone Network (PSTN), RTT would be required to conform to the Telecommunications Industry Association's TIA 825-A standard for TTY signals at the PSTN interface (also known as Baudot).

In developing the proposed rule, the Board took note of the approach to RTT in the EN 301 549 Standard. Section 6.2 of EN 301 549, entitled “Real-time text (RTT) functionality,” addresses ICT with two-way voice communication. Section 6.2.3, entitled “Interoperability,” lists five different standards for RTT operating in three different environments: The publicly switched telephone network; VoIP using SIP; and other ICT using RTT conforming to the IP Multimedia Sub-System (IMS) set of protocols specified in section 6.2.3(c). A sixth standard was proposed in section 6.2.3(d) for ICT operating in an unspecified environment, specifically that ICT is permitted to interoperate with “a relevant and applicable common specification for RTT exchange that is published and available.”

In the preamble to the NPRM, we asked nine questions about text-based communications and the different standards the Board was considering incorporating. NPRM, 80 FR at 10880, questions 1-2, 8-13 and 36. Seven of the questions addressed RTT functionality and standards, and two of the questions sought information on costs. Seventeen commenters responded to the topic of RTT. While most of these commenters acknowledged the importance of RTT as a replacement for outdated Text Telephone (TTY) technology, there was minor disagreement from industry trade associations about whether RTT technology was sufficiently mature for deployment to replace TTYs. Most commenters from industry, academia, and disability rights organizations agreed that RTT could be deployed, but disagreed about which standard to use for RTT operating in different systems. ICT manufacturers and ICT industry associations urged the Board not to adopt any specific standard for RTT, requesting that the final rule leave open the ability to use some future technology that may provide better functionality than existing environments. In response to the Board's questions in the NPRM, several commenters supported broad deployment of RTT at all times, both in the Federal sector and in the private marketplace; however, one ICT industry commenter questioned the need or demand for the technology. In response to our questions on cost, commenters from the ICT industry stated that RTT would not be cost-effective and would limit manufacturers flexibility. On the other hand, commenters from academia, research entities, and disability rights organizations described the benefits resulting from the implementation of RTT and the inherent cost savings in decreased use of relay services mandated under the ADA.

In April 2016, during the pendency of the Access Board's ICT rulemaking, the Federal Communications Commission (FCC) published a Notice of Proposed Rulemaking (FCC NPRM) seeking comment on proposals to replace the FCC rules requiring support for TTY technology with rules requiring support for RTT technology.

See

Transition from TTY to Real-Time Text Technology; Proposed Rule, 81 FR 33170 (proposed May 25, 2016);

see also

FCC, Transition from TTY to Real-Time Text Technology; Petition for Rulemaking to Update the Commission's Rules for Access to Support the Transition from TTY to Real-Time Text Technology, and Petition for Waiver of Rules Requiring Support of TTY Technology, Notice of Proposed Rulemaking, CG Docket No. 16-145, GN Docket No. 15-178, FCC 16-53 (released Apr. 29, 2016),

available at https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-53A1.pdf.

As discussed above in Section I.A. (Executive Summary—Purpose and Legal Authority), the FCC is responsible for enforcing Section 255 and issuing implementing regulations; it is not bound to adopt the Access Board's guidelines as its own or to use them as minimum requirements. As the FCC had issued a notice of its intent to regulate in this area, the Board determined that it would reserve the issue of RTT in the final rule to be addressed in a future rulemaking.

In December 2016, shortly before publication of this final rule, the FCC issued a report and order establishing rules to facilitate telecommunication service providers' transition from TTY to RTT.

See

FCC, Report and Order and Further Notice of Proposed Rulemaking, CG Docket No. 16-145; GN Docket No. 15-178, FCC 16-169 (released Dec. 16, 2016) (hereafter, “FCC RTT Order”),

available at https://www.fcc.gov/document/adoption-real-time-text-rtt-rules.

The FCC RTT Order establishes, among other things, requirements that: Facilitate telecommunications service providers' transition from TTY technology to RTT technology that permits simultaneous voice and text on the same call using the same device; achieve interoperability adhering to RFC 4103 as a safe harbor standard; provide backwards compatibility with TTYs for a specified period; and support RTT transmissions to 911 call centers and telecommunications relay centers.

Id.

The FCC RTT Order also incorporates a notice seeking input on the integration of these services into telecommunications relay services, and on the possible addition of RTT features for people with cognitive disabilities and people who are deaf-blind.

Id.

The Access Board continues to monitor these proceedings and will update the 508 Standards and 255 Guidelines as appropriate.

E. Functional Performance Criteria

1. Limited Vision and Limited Hearing

The NPRM proposed to revise the existing functional performance criteria (FPC) for users with limited vision. The NPRM proposed that where technology provides a visual mode of operation, it must provide one mode of operation that magnifies, one mode that reduces the field of vision, and one mode that allows user control of contrast. As explained in the NPRM, the proposed FPC for limited vision was a significant departure from the FPC for limited vision in the existing 508 Standards and 255 Guidelines, which focused on accommodating a specific visual acuity.

2

NPRM, 80 FR 10880, 10898 (Feb. 27, 2015).

2

The existing 508 Standards require that technology provide at least one mode of operation and information retrieval not requiring visual acuity greater than 20/70 in both audio and enlarged print

output, working together or independently. 36 CFR 1194.31(b). The limited vision FPC in the existing 255 Guidelines is similar; it requires that the technology provide a mode that permits operation by users with visual acuity that ranges between 20/70 and 20/200, without relying on audio output. 36 CFR 1193.41(b).

In proposed 302.2, the Board replaced the visual acuity thresholds with requirements for magnification, reduction of field of vision, and user control of contrast to provide criteria that would address a range of limited vision disabilities. NPRM, 80 FR at 10898 (noting that commenters to the 2010 and 2011 ANPRMs recommended that the FPC include features that would address accessibility for users with limited vision). The Board took a similar approach to the FPC for limited hearing (proposed 302.5), proposing that where technology provides an auditory mode of operation, it must provide at least one mode that improves clarity, one mode that reduces background noise, and one mode that allows user control of volume.

Id.

at 10944.

We sought comment in the NPRM with respect to the proposed FPC for limited vision.

Id.

at 10913. In question 17 the Board asked whether the requirements for magnification, reduction of field of vision, and user control of contrast should be more specific.

Id.

The Board further requested that commenters provide a scientific basis for any recommended thresholds.

Id.

The Board received 11 comments on the proposed FPC for limited vision (proposed 302.2), including comments from three ICT companies, three ICT trade associations, an accessible ICT services provider, a state/local government, an ICT subject matter expert, an individual, and a coalition of disability rights organizations.

The individual commenter and the ICT subject matter expert generally concurred with proposed 302.2, but did suggest possible improvements. The individual commenter suggested adding a “control of color” criteria so that users could choose a black background with white text. The ICT subject matter expert asserted that the Board should include specific thresholds for the criteria, but did not provide suggestions for specific thresholds supported by research or data. The state/local government indicated that the proposed FPC did not adequately address the needs of people with limited vision, but did not offer specific suggestions for improving the provision.

The coalition of disability rights organizations appreciated the Board's effort with respect to the limited vision FPC, but felt that the proposed provision missed the mark. The group pointed out that the proposed provision assumed a lack of accessibility, and without a baseline, could result in unnecessary magnification of content that is already sufficiently large, or reduction of a field of vision that is already sufficiently small for limited vision users. The group suggested that the Board alter the provision to require one mode readable by a user with 20/40 vision acuity, one mode that is usable with a 10-degree field of vision, and one mode that provides high contrast.

The ICT companies and trade associations asserted that the proposed FPC for limited vision was too prescriptive, and was inconsistent with the level of specificity contained in the proposed FPCs for other disabilities. These commenters further noted that the FPC for limited vision imposed criteria not required by the technical requirements. In addition, the ICT companies expressed concern that mandating specific criteria in the FPC would stifle innovation. One ICT company described how certain products could provide accessibility for people with limited vision without meeting the proposed criteria. Some industry commenters noted that the proposed limited vision FPC was not technology-neutral and pointed to EN 301 549 as a more useful model. These industry commenters noted that EN 301 549 allows manufacturers the flexibility to include the limited vision accessibility features that are most applicable to a particular type of technology. EN 301 549 clause 4.2.2. ICT industry commenters further noted the benefits to manufacturers of harmonizing with international standards.

Upon consideration of the comments regarding proposed 302.2, the Board agrees that the proposed language of the limited vision FPC is too prescriptive and risks ineffective implementation in the absence of specific baselines for the proposed criteria. The Board is persuaded that the technology-neutral approach advanced throughout this refresh of the 508 Standards and 255 Guidelines is equally appropriate with respect to the FPC. The Board thus finds that harmonization with the language of EN 301 549 is a reasonable approach to the limited vision FPC, and adopts this suggestion for the language of 302.2 in the final rule. Therefore, we have revised final 302.2 to require ICT that provides a visual mode of operation also provide “at least one visual mode of operation that enables users to make better use of their limited vision.”

The proposed rule included a proposed FPC for limited hearing that closely mirrored the structure of the proposed limited vision FPC. In proposed 302.5, the Board proposed a limited hearing FPC that would have required ICT that provides an auditory mode of operation to also provide at least one mode of operation that improves clarity, one mode that reduces background noise, and one mode that allows user control of volume. ICT industry commenters, and a coalition of disability rights organizations, responded with the same issues that they presented with respect to the proposed limited vision FPC. Specifically, they posited that the proposed limited hearing FPC would not necessarily provide a better functional experience for users with limited hearing. An accessible ICT services provider, as well as an ICT trade association and two ICT companies, noted that the requirements for reduction of background noise and improvement of clarity would be difficult to define, measure, and achieve. As with the proposed FPC for limited vision, ICT industry commenters indicated that harmonization with the language of EN 301 549 would be technology-neutral and would give manufacturers the flexibility to develop accessibility features appropriate for their specific technology. EN 301 549 clause 4.2.5.

Upon consideration of the comments, and in the interest of creating a consistent regulatory structure with respect to all of the FPC in the final rule, the Board agrees that harmonization with the international standard is appropriate for the limited hearing FPC. Therefore, in the final rule, we have revised 302.5 to require that where ICT has an audible mode of operation, it must include “at least one mode of operation that enables users to make use of limited hearing.”

2. Limited Cognitive Abilities

The existing 255 Guidelines contain a FPC that expressly addresses operability of ICT by persons with cognitive, language, and learning disabilities. 36 CFR 1993.41(i) (requiring that ICT operate in “at least one mode that minimizes the cognitive, memory, language, and learning skills required of the user.”). The existing 508 Standards do not include a comparable provision. 36 CFR 1194.31 (listing six FPC, none of which address limited cognition). During its review, the TEITAC Advisory Committee recommended eliminating this requirement citing a lack of common standards or testable metrics. NPRM, 80 FR at 10910. The TEITAC Advisory Committee suggested that the Board eliminate the limited cognition

FPC until more research could be done.

Id.

The Board thus did not include the provision in the 2010 and 2011 ANPRMs.

Id.

After considering comments received in response to the ANPRMs, the Board concurred that more research was needed before it could propose a meaningful FPC for limited cognitive ability.

Id.

Therefore, in the NPRM, we did not propose to include an FPC for limited cognition in the Revised 508 Standards or Revised 255 Guidelines.

Id.

A total of 11 commenters addressed the NPRM's failure to include provisions specifically addressing ICT operability by persons with cognitive, language, or learning disabilities. These commenters included four individuals who identified themselves as either having a learning or cognitive disability, or having a family member with a learning or cognitive disability, one accessibility ICT services provider, one ICT subject matter expert, four disability advocacy organizations, and a coalition of disability rights organizations.

The overarching sentiment that the commenters expressed was that the proposed rule marginalized cognitive, language, and learning disabilities. Disability advocacy organizations, as well as individual commenters, provided general background information on the incidence of cognitive, language, and learning disabilities in the United States. They noted the significant portion of the United States population that is affected by a cognitive disability, and further noted that the incidence of cognitive disability in the United States is growing as the population ages. Individual commenters described challenges using ICT that they or their family members face as a result of their cognitive disabilities.

Five commenters (including disability advocacy organizations, an ICT subject matter expert, an accessible ICT services provider, and a coalition of disability rights organizations) criticized the Board for not including an FPC expressly directed to the needs of individuals with cognitive or learning disabilities. These commenters urged inclusion of a new provision in the final rule similar to § 1193.41(i) of the existing 255 Guidelines. Some of these commenters noted that while the Access Board's proposed revision of the 508 Standards and 255 Guidelines was silent on cognitive accessibility, the European ICT accessibility standard, EN 301 549, addresses cognitive accessibility and provides adjustable timing, error indication and suggestion, and logical focus order as examples of relevant design features for people with cognitive disabilities. EN 301 549 clause 4.2.10.

One individual commenter suggested that the Board rewrite proposed Chapter 3 to model all FPC on the underlying accessibility principles of WCAG 2.0. W3C®, An Introduction to Understanding WCAG 2.0, (Mar. 17, 2016),

https://www.w3.org/TR/UNDERSTANDING-WCAG20/intro.html.

The commenter suggested that by eliminating references to specific disabilities, the FPC should equally address all disabilities, including cognitive disabilities.

After careful consideration of the comments, we are persuaded that the final rule should include an FPC for limited cognitive abilities. In light of the significant portion of the United States population that has cognitive, language, or learning disabilities, the Board finds that it would be inappropriate to exclude the needs of this population from the Revised 508 Standards and 255 Guidelines. U.S. Census, Sex By Age By Cognitive Difficulty, 2010-2014 American Community Survey 5-Year Estimates,

http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_14_5YR_B18104&prodType=table

(last visited on Aug. 8, 2016) (estimating that in 2014 almost 5 percent of the civilian non-institutionalized U.S. population 5 years old and older had a cognitive disability). The existing 255 Guidelines contain an FPC for limited cognition. While evaluation of accessibility under this existing provision has posed some challenges, the Board nonetheless concludes that, given the significant population of Americans with limited cognitive, language, or learning abilities, it is important and appropriate to include an FPC addressing their accessibility needs in Chapter 3—which applies under both the Revised 508 Standards and 255 Guidelines. Moreover, in an effort to maintain a consistent regulatory structure for the FPC in the final rule, the language for this FPC in the final rule seeks to harmonize with the FPC for limited cognition in EN 301 549. Therefore, in the final rule, we have added a new section 302.9, which requires that ICT provide “features making its use by individuals with limited cognitive, language, and learning abilities simpler and easier.”

IV. Summary of Comments and Responses on Other Aspects of the Proposed Rule

Overall, we received 162 comments in response to the NPRM, including written comments submitted to the online docket (

https://www.regulations.gov/docket?D=ATBCB-2015-0002

) and oral statements at three public hearings. In addition to comments received on the major issues discussed in the preceding section, commenters also expressed views on a variety of other matters related to the proposed rule. The Access Board's response to significant comments on these other matters are discussed below on a chapter-by-chapter basis following the organization of the final rule. Also addressed below are requirements in the final rule that have been substantively revised from the proposed rule. Provisions in the final rule that neither received significant comment nor materially changed from the proposed rule are not discussed in this preamble.

A. 508 Chapter 1: Application and Administration

Chapter 1 of the Revised 508 Standards contains a general section that defines equivalent facilitation, addresses application of referenced standards, and provides definitions of terms used in the Standards. In the final rule, the provisions expressly incorporating the ten referenced standards into the Revised 508 Standards have been relocated from proposed E102 to a new Chapter 7, which provides a centralized IBR section pursuant to regulations issued by the Office of the Federal Register (OFR) that govern incorporations by reference in the

Federal Register

. This reorganization of IBR provisions is discussed at greater length in Section IV.I (Summary of Comments and Responses on Other Aspects of the Proposed Rule—Chapter 7: Referenced Standards). We have also made minor changes to 508 Chapter 1 in response to comments to improve clarity, accuracy, and ease of use. These changes are described below.

E101.3 Conventional Industry Tolerances

The NPRM proposed this section in the interests of being explicit about dimensions. We did not receive any comments on this provision but have decided, for the purpose of clarity and consistency with the Board's other rulemakings, to add “with specific minimum or maximum end points” to E101.3 in the final rule.

E102 Referenced Standards

This section has been significantly reorganized and revised in the final rule. The general statements in the first two sentences regarding the application of referenced standards remain essentially unchanged from the proposed rule. However, the subsequent

provisions in the proposed rule that expressly IBR the ten referenced standards into the Revised 508 Standards (

i.e.,

proposed E102.2-E102.10) have been moved in the final rule to a centralized IBR section—new Chapter 7. This reorganization of IBR provisions was made to comply with OFR regulations that govern incorporations by reference.

See

1 CFR part 51. Comments related to proposed incorporations by reference into the Revised 508 Standards are discussed below in Section IV.I (Summary of Comments and Responses on Other Aspects of the Proposed Rule—Chapter 7: Referenced Standards).

E103.4 Defined Terms

We identified seven comments regarding proposed E103.4. These commenters asked the Board to clarify the definitions of (or provide examples for) the following terms: “authoring tool,” “application,” “document,” “operable part,” “platform software,” “public facing,” and “software.” Two commenters, an ICT company and an industry trade association requested the Access Board to fully align the definition of “authoring tool” to the definition in EN 301 549.

After review of the comments, we have determined that we would be providing clearer information by including more terms, and we therefore added definitions for “document,” “non-Web document,” “non-Web software,” and “Web page” to the list of defined terms in E103.4 in the final rule. The definitions provided for these terms closely track the definitions used in WCAG 2.0 and EN 301 549. For similar reasons of completeness, we also added the terms “software tools” and “variable message signs.” Additionally, based on commenter concerns, we amended the definitions of “software” and “operable part” in the final rule. The definition of “software” clarifies the term by giving the examples of applications, non-Web software, and platform software. The definition of “operable part” now makes clear that the term applies to physical parts (hardware). Finally, the Board added definitions for “alteration” and “existing ICT,” which are new terms used in the safe harbor provision applicable to existing 508-covered ICT (E202.2). Additional discussion of these new terms appears below in section IV.C (508 Chapter 2: Scoping Requirements in the discussion of the safe harbor provision at E202.2).

In response to the requests to align the definition for “authoring tool” to EN 301 549, the Board regards the two definitions as being equivalent, but has decided to retain the definition from the proposed rule due to editorial consideration. The main difference between the approach taken in the proposed rule and that of EN 301 549 is that the EN 301 549 definition for “authoring tools” includes three notes containing advisory guidance. Our practice is to provide advisory guidance in supplemental materials.

B. 508 Chapter 2: Scoping Requirements

508 Chapter 2 addresses application and scoping of the Revised 508 Standards, including exceptions. We have made multiple significant changes to this chapter. We added a ninth category to E205.3, official agency communications that are non-public-facing electronic covered content, and clarified the application of WCAG 2.0 to non-Web documents and software. We made corresponding changes to E205.4 and E207.2, including adding E205.4.1 and E207.3, which specify the word substitution necessary to apply WCAG 2.0 to non-Web content. These changes are discussed above in Section III.B. (Major Issues—Application of WCAG 2.0 to Non-Web ICT). In addition, we made editorial changes for consistency and clarity. These editorial changes and the responses to other comments received are discussed below.

E202 General Exceptions

In response to some agencies' concerns regarding the time and resources that might be needed to remediate existing (legacy) ICT, the Board has incorporated a “safe harbor” provision into the Revised 508 Standards (E202.2). Under this provision, legacy ICT that complies with the existing 508 Standards and has not been altered after the compliance date (

i.e.,

one year after publication of the final rule) need not be modified or upgraded to conform to the Revised 508 Standards. However, when existing ICT is altered after the compliance, such alterations must comply with the Revised 508 Standards. Application of the safe harbor provision will allow Federal agencies to focus their ICT accessibility efforts primarily on new ICT.

This safe harbor provision applies on an “element-by-element” basis in that each component or portion of existing ICT is assessed separately. In specifying “components or portions” of existing ICT, the safe harbor provision independently exempts those aspects of ICT that comply with the existing 508 Standards from mandatory upgrade or modification after the final rule takes effect. This means, for example, that if two paragraphs of text are changed on an agency Web page, only the altered paragraphs are required to comply with the Revised 508 Standards; the rest of the Web page can remain “as is” so long as otherwise compliant with the existing 508 Standards.

Additionally, to further clarify the specific circumstances under which existing ICT must be made to comply with the Revised 508 Standards, the Board has added definitions for “alteration” and “existing ICT” in E103.4. “Existing ICT” is defined as ICT that has been procured, maintained or used on or before the compliance date (which is one year after publication of the final rule). The Access Board has intentionally omitted the term “developed” from this definition because existing ICT that has been developed—but not yet used or procured—still presents an opportunity to incorporate requisite accessibility.

“Alteration,” in turn, is defined as a change to existing ICT that affects interoperability, the user interface, or access to information or data. In defining “alteration,” the Board seeks to distinguish between changes to existing (compliant) ICT that trigger compliance obligations under the Revised 508 Standards, and those that do not. For example, since correction of a typographical error on a Web page does not affect interoperability, user interface, or access to information and data, this type of change would not trigger compliance obligations under the Revised 508 Standards. However, changing the footer portion of an agency Web site through a content management system (CMS) would affect access to information and data (

i.e.,

the information in the footer). In that case, changes to the footer would need to conform to the Revised 508 Standards; however, other page content that was not affected by the footer revision would not need to be upgraded or modified. In another example, a typical software security patch does not affect interoperability, user interface, or access to information and data; therefore, deployment of such software security patches would not be considered “alterations” under the safe harbor provision.

The safe harbor provision is applicable only to existing ICT covered by Section 508, and does not extend to Section 255-covered telecommunications equipment or CPE. Because the FCC has exclusive authority to implement and enforce Section 255, compliance with the Revised 255 Guidelines is not required until they are adopted by the FCC through a separate rulemaking. As such, application of the revised guidelines to existing ICT

covered by Section 255 also lies within the province of the Commission.

Agencies and the public may need to refer to the existing 508 Standards to determine whether existing ICT complies with its accessibility requirements once the final rule takes effect. To that end, the existing 508 Standards have been republished as an appendix (Appendix D) to part 1194 for reference when evaluating legacy ICT under the safe harbor provision. In Appendix D, while the text and structure of each provision remains the same as in the existing 508 Standards, the numbering convention for each provision has been modified to comply with publication requirements for matter located in regulatory appendices.

The NPRM proposed five other general exceptions that apply to ICT that: Is an integral part of a national security system (proposed E202.2); is acquired by a contractor incidental to a contract (proposed E202.3); is located in maintenance spaces (proposed E202.4); would require a fundamental alteration to be accessible (E204.5); or, is not commercially available (proposed E202.6). These five exceptions closely parallel equivalent requirements in existing 508 Standards (36 CFR 1194.3(a), 1194.3(b), 1194.3(f), 1194.3(e), and 1194.2(b), respectively).

We received six comments expressing concern or requesting changes to proposed E202. Two commenters (a disability advocacy organization and an ICT subject matter expert) requested deletion of proposed E202.2, which exempts national security systems as defined by 40 U.S.C 1103(a). These commenters asserted that ICT that is part of a National Security System should be required to conform to the maximum extent possible, instead of being exempted entirely from compliance. Two commenters (a disability advocacy organization and an ICT subject matter expert) also requested that the exception for ICT acquired incidental to a contract in proposed E202.3 be removed, asserting it would discourage contractors from hiring employees with disabilities. Additionally, an individual commented that proposed E202.3 needed a major change because it has not been successful in the past in getting software manufacturers to make accessible software. This individual requested that the final rule require refunds if a future version of software failed to meet accessibility requirements. The Board also received three comments (one ICT company and two industry trade associations) seeking expansion of proposed E202.4, which exempts certain functions of ICT located in maintenance or monitoring spaces, to include a “back office exemption” for maintenance functions and maintenance spaces.

After carefully considering the comments received, we have decided not to make any changes to these five general exceptions in proposed E202, except to shift the numbering of the provisions to accommodate the incorporation of a safe harbor provision at E202.2 that applies to legacy 508-covered ICT. The exception proposed for National Security Systems (final E202.3) is taken directly from the statute authorizing the 508 Standards (Section 508 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794d). Additionally, the statutory definition of “information technology,” which excludes equipment that is acquired by a Federal contractor incidental to a contract, prohibits the Access Board from requiring such ICT to comply with the Revised 508 Standards and 255 Guidelines. 40 U.S.C. 11101(6), stating that “[t]he term `information technology' . . . does not include any equipment acquired by a Federal contractor incidental to a Federal contract.”

E202.4 in the proposed rule (final E202.5) was a change to existing 508 Standards § 1194.3(f) in that the exception was narrowed to apply only to those status indicators and operable parts that are available from maintenance spaces. Since it is the usual case that rack-mounted equipment is operated remotely, this change makes it clear that the Revised 508 Standards do not preclude this usual business practice.

In response to the commenters' requests seeking expansion of proposed E202.4 for a complete “back office exemption,” the Board, after careful consideration, declines to make a change. People with disabilities frequently perform “back office” IT work and the majority of these job functions can be addressed with assistive technology. The Board is sensitive to concerns raised by some commenters, that ICT will often not be accessible when there is a physical problem or failure with the equipment. We note that we did not provide a complete exception for maintenance functions in the proposed rule, as it only intended the requirements concerning the accessibility of operable parts to apply to the normal operation of ICT by end-users. In order to ensure clarity in the final rule, in addition to the edit to the definition for “operable part” mentioned above, we have revised 407.1 in the final rule to make the application of these Standards to normal operation explicit. This is discussed in further detail below in Section IV.F. (Summary of Comments and Responses on Other Aspects of the Propose Rule—Chapter 4: Hardware—407). In addition, we note that the exception for maintenance spaces which are frequented only by service personnel for maintenance, repair, or occasional monitoring is consistent with the ADA and ABA Accessibility Guidelines. 36 CFR part 1191 (stating that “Spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment shall not be required to comply with these requirements or to be on an accessible route”). Therefore, in the final rule, we have not made any changes to proposed E202.4, with the exception of its renumbering (final E202.5).

E203 Access to Functionality

The NPRM proposed to require that all ICT be accessible to and usable by individuals with disabilities, either directly or by use of assistive technology. This section was based on the existing 508 Standards (36 CFR 1194.1 and 1194.2(a)). We received ten comments regarding this proposed requirement; three individuals, a disability advocacy organization, three trade associations, and three ICT companies.

An ICT company and an ICT trade association expressed concern with the proposed requirements and requested clarification on the minimum required abilities assumed for operational functions of certain products. The specific example provided was that it would be very difficult for a person who is blind to have a job operating a large volume xerographic services machine, because that person would not be able to visually monitor the complex equipment. An ICT subject matter expert in the field of geographic information systems raised concerns and recommended that the Board expand the exceptions in proposed E203 to include rich content like maps that represent information and data visually because they do not know of any other means to convey the information and data. Another commenter raised concerns about the inability to make inherently visual representations, such as motion pictures, fully accessible to a person who is blind even when assistive technologies are used. Finally, a disability advocacy organization recommended that this provision be amended to require that people with disabilities be provided training to evaluate, install, and configure assistive technology.

The Board has reviewed the comments received and find that the commenters' concerns requesting

clarification of the minimum required abilities for operation functions are misplaced. The 508 Standards apply to all ICT; deliberately, they do not make assumptions regarding physical, cognitive, or sensory abilities associated with performing job tasks. Presumably, a job operating a large volume copier would include the requirement to confirm by visual inspection that output hard copy was correct. The fact that there may be specific performance requirements for certain jobs is not a sufficient justification to exempt the core functions of the ICT from the Revised 508 Standards. In response to the commenter's request for an exception for ICT that cannot be adequately represented through assistive technology, the Board notes that the intent of the 508 Standards is to provide comparable access. In the Board's experience, the scope and nature of accessibility improves over time as technology advances. The Board has concluded that these issues are well addressed by the technical and functional performance requirements, and has declined to narrow the scoping or expand the available exceptions as suggested. Finally, in response to the request that the final rule require training, we find that such a requirement is outside the scope of these Standards and have declined to make this suggested change.

We have considered the commenters' suggestions regarding section E203, but as described above, found no reason to make substantive changes. We have made a few editorial changes to E203 in the final rule for clarity. The most significant of these editorial changes is in the title of E203.2, which is now “User Needs” instead of “Agency Business Needs.”

E204 Functional Performance Criteria

The NPRM proposed that where the requirements in Chapters 4 and 5 do not address one or more features of ICT, the features not addressed shall conform to the functional performance criteria (FPC) in Chapter 3. Many comments were received regarding the individual FPC referenced in proposed E204. As the technical criteria are provided in Chapter 4, these comments are addressed below in Section IV.F. (Summary of Comments and Responses on Other Aspects of the Proposed Rule—Chapter 4: Hardware). Some of the concerns with the FPC for limited vision, limited hearing, and limited cognition are addressed in the Major Issues section of this preamble, at Section III.E. (Major Issues—Functional Performance Criteria).

We identified 22 comments concerned with proposed E204. Several of these comments indicated that the applicability of proposed E204.1 should be further clarified. An ICT company asserted that as written, proposed E204.1 could be interpreted as requiring the applicability of the FPC to be considered on a feature-by-feature basis. Specifically, this commenter explained that for software products that typically include a long list of “features,” such a feature-by-feature evaluation would be quite onerous. Additionally, one commenter provided suggested text for inclusion in advisories in the final rule.

We concur with the commenter that proposed E204.1 could be misinterpreted. We intended for the functionality of the ICT to be considered holistically, and not on a feature-by-feature basis. The final rule revises this requirement and substitutes “functions” for “features,” to avoid this confusion. The Board regards this change as editorial, as it seeks to clarify the intent of the proposed provision, and makes the text of the provision consistent with the chapter title and phrasing used elsewhere in the Revised 508 Standards. In response to the commenter's request for advisories, as described above, advisories are no longer published in the final rule; however, the Board intends to provide further guidance on the applicability of final E204.1 in its technical assistance.

E205.2 Public Facing

Three commenters raised concerns with proposed E205.2, specifically in regards to the application of this provision to social media platforms. One individual questioned whether social media constituted public-facing content under proposed E205.2. Another individual questioned whether third-party content added by members of the public to agency controlled social media sites would constitute public-facing content under proposed E205.2. The third commenter, a disability advocacy organization, recommended that agencies be precluded from using any social media platforms that are not compliant with the final rule.

In the NPRM preamble, we described public-facing content and included social media pages as an example of such content. 80 FR 10880, 10893 (Feb 27, 2015). The Board refers commenters on this topic to the discussion in the NPRM, as its position on this matter has not changed. Additionally, we note that under Section 508 of the Rehabilitation Act (as amended), agencies have responsibility for all content that they develop, procure, maintain, or use. 29 U.S.C. 794d. Agencies are therefore responsible for third-party content added to and maintained on their sites, and will need to develop policies and practices to ensure the accessibility of that third-party content. This is consistent with other policies and practices agencies employ regarding personally identifiable information, security, obscenities, or other concerns presented by third-party content. If an agency invokes an exception and uses inaccessible ICT to provide information and data to the public, the statute requires that the agency provide the same information and data to individuals with disabilities by an alternative means.

Id.

(stating that “the Federal department or agency shall provide individuals with disabilities covered by paragraph (1) with the information and data involved by an alternative means of access that allows the individual to use the information and data”). Under current law, an agency is not prevented from using an inaccessible social media platform under a provided exception, as long as the agency provides individuals with disabilities an alternative means of accessing the same information and data. Accordingly, the Board has not made a change to this requirement.

E205.3 Agency Official Communication

In addition to the changes made to E205.3, discussed above in Section III.A. (Major Issues—508 Standards: Covered Electronic Content), a commenter expressed confusion and questioned what the difference was between a questionnaire and a survey. The Board notes it was not our intention for this item to refer to two different types of communication. Therefore, in the final rule we have amended this item from “questionnaire or survey” to “survey questionnaire.”

E205.4 Accessibility Standards

The NPRM generally proposed to replace the existing technical standards for Web, software, applications, and electronic content with incorporation by reference of the Level A and Level AA Success Criteria and Conformance requirements of WCAG 2.0, which appear at proposed E205.4. There is no direct analogy in the WCAG 2.0 Success Criteria for section 1194.22(d) of the existing 508 Standards, which states: “documents shall be organized so they are readable without requiring an associated style sheet.” 36 CFR 1194.22(d).

Three individual commenters expressed concern that eliminating the requirements of section 1194.22(d) of the existing 508 Standards would

significantly reduce the level of user control over customized styling (including features such as magnification, color, and contrast), which is critical to some users with low vision. Section 1194.22(d) of the existing 508 Standards requires documents to be organized so that they are readable without an associated style sheet. This enables persons with low vision to remove style sheets from Web pages so that they can change aspects of text style, such as spacing, font, color, borders, and width of reading areas. A disability advocacy organization indicated that replacing the current requirement with referenced provisions of WCAG 2.0 Levels A and AA would result in scenarios problematic for some users with low vision, such as limiting the maximum required magnification to 200 percent while permitting horizontal scrolling (WCAG Success Criteria 1.4.4). In addition, WCAG 2.0 Levels A and AA will provide for a sole fixed contrast setting instead of permitting user control over the degree of contrast (WCAG Success Criteria 1.4.3), which presents a challenge for some individuals.

We have considered commenter concerns regarding the loss of user control over customized styling, and acknowledge that some individuals who elect to use ICT without assistive technology may be affected by the loss of the requirements in section 1194.22(d) of the existing 508 Standards. However, the Board finds that the existing section 1194.22(d) requirement is detrimental to the use of assistive technology, which has well-supported the use of stylesheets for several years. All users, including users of screen reading software and other assistive technology, rely on the presence of Cascading Style Sheets (CSS) in order to format text for a variety of devices and Web browsers. In complex Web applications, CSS is also used dynamically to hide content that is not relevant to the user's current transaction and to selectively show content based on the user's choices. The need for content authors to maintain support for section 1194.22(d) had the effect of slowing the adoption of robust accessible Web content. Further, mainstream adoption of contemporary technologies (for example, ARIA or Accessible Rich Internet Applications) depends on CSS being supported. Implementation of these newer, more advanced approaches is not compatible with 1194.22(d). For these reasons, the Board declines to reintroduce the requirements of section 1194.22(d) in the Revised 508 Standards. The Board is also not persuaded that amending the language of select WCAG 2.0 Success Criteria, such as 1.4.4 (Resize Text) is a prudent approach. Requiring, for example, 400 percent magnification might allow a select number of users with low vision to use ICT without assistive technology; however, the overall consistency of the requirements, an important goal of harmonization with international standards, would be lost.

Another individual commenter suggested that the technical requirements relating to text featured in software under proposed 502.3.6 be made applicable to text in all content generally, under E205.4. The Board is not persuaded to adopt the recommendation to apply proposed 502.3.6 to all content, including Web content. Adding such a requirement to the WCAG 2.0 criteria would create harmonization issues internationally as well as among Federal agencies. The technical requirement for “boundary of text rendered on the screen” is a detail that is readily available in client-side software, but is not always available in a Web browsing environment.

The Board carefully considered the public comments and it finds that incorporation of the WCAG 2.0 standard, without modification, adequately addresses the needs of the majority of users with low vision. The Board also notes that W3C® has formed a task force charged with investigating the issue of accessibility requirements related to low vision and with creating recommendations. Low Vision Accessibility Task Force,

http://www.w3.org/WAI/GL/low-vision-a11y-tf/,

(last visited Aug. 23, 2016). The Board is following that work and may incorporate their recommendations in future rulemaking.

Conforming Alternate Version

The NPRM proposed that a Web page could conform to WCAG 2.0 either by satisfying all success criteria under one of the levels of conformance or by providing a “conforming alternate version.” Because WCAG 2.0 always permits the use of conforming alternate versions, the Access Board sought input on whether there were any concerns that the unrestricted use of conforming alternate versions of Web pages may lead to the unnecessary development of separate Web sites or unequal services for individuals with disabilities, and whether the Board should restrict the use of conforming alternate versions beyond the explicit requirements of WCAG 2.0. NPRM, 80 FR at 10897.

Eleven commenters responded to the proposed provision allowing conforming alternate versions. Seven of the commenters (four ICT companies and trade associations, two disability advocacy organizations, and one individual) supported the approach to conforming alternate versions proposed in the NPRM. Four commenters (two individuals, one state government agency, and an ICT trade association) opposed the approach from the NPRM.

Under WCAG 2.0, in order for a non-conforming Web page to be included within the scope of conformance by using a conforming alternate version, the alternate version must: Conform at the designated level (

i.e.,

WCAG 2.0 Level AA success criteria); provide the same information and functionality in the same language; and be as up-to-date as the non-conforming content or page. In addition to these requirements, at least one of the following must be true: (1) The conforming version can be reached from the non-conforming page via an accessibility-supported mechanism; (2) the non-conforming version can only be reached from the conforming version; or (3) the non-conforming version can only be reached from a conforming page that also provides a mechanism to reach the conforming version. W3C®, Understanding WCAG 2.0: Understanding Conforming Alternate Versions, Dec. 2012,

http://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-conforming-alt-versions-head.

The W3C® explains that providing a conforming alternate version is intended to be a “fallback option for conformance to WCAG and the preferred method of conformance is to make all content directly accessible.”

Id.

While some commenters expressed specific concern that the use of conforming alternate versions could still create separate, unequal Web sites for people with disabilities, the Access Board has concluded that when the requirements for a conforming alternate version are viewed in conjunction with the W3C®'s guidance, it is clear that they are meant to be used only in the limited circumstances where the primary Web page or content cannot be made accessible for all users, typically due to a technical or legal limitation.

In the Revised 508 Standards, the Board has decided to retain the incorporation by reference to WCAG 2.0's conforming alternate version, as proposed in the NPRM. WCAG 2.0's conforming alternate versions provision provides a much clearer standard than the vague language of the existing 508 Standards. Section 1194.22(k) of the existing 508 Standards states that “[a] text-only page, with equivalent information or functionality, shall be

provided to make a Web site comply with the provisions of this part, when compliance cannot be accomplished in any other way. The content of the text-only page shall be updated whenever the primary page changes.” While on its face, the existing 508 Standards may seem to more strictly limit the use of alternate pages, in practice it is difficult to determine when compliance cannot be accomplished in any other way, and thus, it is easy for agencies to justify the use of text-only pages. Such alternate text-only sites often are poorly maintained, lack the same information and functionality available on the non-conforming Web page, and have out-of-date content. As explained above, the WCAG 2.0 requirement for a conforming alternate version significantly exceeds the expectations for text-only pages, and would not permit these deficiencies. Therefore, the Board has concluded that agencies using the Revised 508 Standards for conforming alternate versions under WCAG 2.0 will not create Web sites that suffer from these same problems, because the requirements for conforming alternate versions under WCAG 2.0 are so rigorous.

Despite WCAG 2.0's requirement that conforming alternate versions follow far more robust standards than the text-only pages permissible under the existing 508 Standards, some commenters have expressed concern that agencies may choose to use conforming alternate versions even in circumstances in which compliance could be achieved on the primary Web page. The Access Board expects that the stringent requirements for the use of conforming alternate versions under the Revised 508 Standards will prevent this abuse. The Board expects that an agency that decides to use a conforming alternate version of a Web page as opposed to making the main page accessible will typically do so when, as the W3C® explains, certain limited circumstances warrant or mandate their use. For example, W3C® has noted that a conforming alternate version may be necessary: (1) When a new emerging technology is used on a Web page, but the new technology cannot be designed in a way that allows assistive technologies to access all the information needed to present the content to the user (

e.g.,

virtual reality or computer-simulated reality); (2) when it is not possible to modify some content on a Web page because the Web site owner is legally prohibited from modifying the Web content; or (3) to provide the best experience for users with certain types of disabilities by tailoring a Web page specifically to accommodate those disabilities.

Id.

The Access Board does not anticipate that an agency would choose to maintain a separate conforming alternate version of a Web page for people with disabilities without a compelling reason, as maintaining separate sites in most, if not all circumstances, would be expensive and overly time-consuming. The Board notes that meeting the stringent criteria for a conforming alternate version under WCAG 2.0 is, in most cases, impractical if the primary page can be made accessible. The Access Board further notes that agencies will have a disincentive to allow conforming alternate versions of Web pages to become out-of-date, as this blatant failure to meet the requirements of WCAG 2.0 for conforming alternate versions could be evidence of noncompliance under the Revised 508 Standards. If the Board finds that use of conforming alternate versions, in practice, does not provide people with disabilities a Web experience equivalent to that of people without disabilities, the Board will consider whether rulemaking is appropriate to restrict the use of conforming alternate versions.

E206 Hardware

We received one comment on this provision from a disability advocacy organization which asserted that proposed E206 did not sufficiently include mobile phones and tablets. The Board disagrees with the commenter and finds that these products are hardware, and are therefore subject to the hardware requirements in Chapter 4 of the final rule.

E207 Software

We received one comment on this provision from a disability advocacy organization that indicated that proposed E207 did not sufficiently encompass mobile applications. The Board disagrees with the commenter and finds that such mobile “apps” are software applications and are therefore subject to the software requirements in Chapter 5 of the final rule.

The W3C® has formed a task force charged with investigating and making recommendations on the issue of accessibility requirements specific to mobile content. Mobile Accessibility Task Force,

http://www.w3.org/WAI/GL/mobile-a11y-tf/

(last visited Aug. 23, 2016). The Board is following that work and may incorporate its recommendations in future rulemaking.

Additionally, the final rule contains an exception to E207.1 and E207.2 that excludes assistive technology software that supports the accessibility services of the platform. This exclusion appeared in the proposed rule as an exception to proposed 501.1. One commenter noted that the exception might be overlooked until after assistive technology was evaluated for conformance to WCAG 2.0. In response to the commenter's concern, in the final rule, the Board has moved this exception from chapter 5 to E207.1 and E207.2. The Board regards the relocation of this exception as an editorial clarification since we never intended for assistive technology to be reviewed against the WCAG 2.0 Success Criteria. Moving the exception from Chapter 5 to Chapter 2 makes this clear, but requires that the exception be repeated in multiple places.

C. 255 Chapter 1: Application and Administration

Chapter 1 of the Revised 255 Guidelines includes a general section, defines equivalent facilitation, addresses application of referenced standards, and provides definitions of terms used in the guidelines. Most of the comments received on 508 Chapter 1, discussed above in Section IV.A. (Summary of Comments and Responses on Other Aspects of the Proposed Rule—508 Chapter 1: Application and Administration), are also applicable to 255 Chapter 1. These are noted below with the applicable section numbers. Additionally, we have made minor changes specific to the 255 Chapter 1 in response to comments to improve clarity, accuracy, and ease of use. These changes are described below.

C101.1 Purpose

An ICT trade association raised a concern that inclusion of the phrase “and related software,” could be interpreted to go beyond the scope of Section 255 to cover software other than that essential to telecommunications functions. The Board agrees with the commenter that the inclusion of this phrase is problematic. The Communications Act defines telecommunications equipment to include “software integral to such equipment including upgrades.” 47 U.S.C. 153(45). The FCC, in its 1999 Report and Order implementing its regulations under Section 255, went on to find that customer premises equipment likewise includes software integral to the operations and functions of the equipment. FCC 99-181, adopted July 14, 1999; Released Sept. 29, 1999, pp. 41-42. The Board has concluded that the inclusion of the term “and related software” in proposed C101.1 is unnecessary and confusing, and has deleted it from the provision in the final

rule. The Board has also made changes to several definitions in the final rule, discussed below, to conform to the terminology of Section 255 and the FCC implementing regulations.

C101.3 Conventional Industry Tolerances

For the same reasons discussed above in Section IV.A. (Summary of Comments and Responses on Other Aspects of the Proposed Rule—508 Chapter 1: Application and Administration—E101.3), we have added “with specific minimum or maximum end points” to C101.3 in the final rule.

C102 Reference Standards

This section has been significantly reorganized and revised in the final rule. The general statements in the first two sentences regarding the application of referenced standards remain essentially unchanged from the proposed rule. However, the subsequent provisions in the proposed rule that expressly IBR the ten referenced standards into the Revised 255 Guidelines (

i.e.,

proposed C102.2-C102.10) have been moved in the final rule to a centralized IBR section—new Chapter 7 (Referenced Standards). This reorganization of IBR provisions was made to comply with OFR regulations that govern incorporations by reference.

See

1 CFR part 51. Comments related to proposed incorporations by reference into the Revised 255 Guidelines are discussed below in Section IV.I (Summary of Comments and Responses on Other Aspects of the Proposed Rule—Chapter 7: Referenced Standards).

C103.4 Defined Terms

In addition to the corresponding changes made to C103.4 that were described above in the Section IV.A. (Summary of Comments and Responses on Other Aspects of the Proposed Rule—508 Chapter 1: Application and Administration—E103.4), we have made a few additional changes based on public comments that are only applicable to the Revised 255 Guidelines.

We added a definition for “manufacturer” to final C103.4, and amended the definitions for “customer premises equipment” and “telecommunications equipment” to conform to the language of Section 255 and the FCC implementing regulations.

Finally, we received comments asking why the definitions for “closed functionality” and “ICT” in proposed C103.4 included examples that were not telecommunications equipment. The Board concurs with commenters' concerns that the examples included with those definitions in proposed C103.4 were confusing because they were not telephony products, and thus not within the scope of the 255 Guidelines. Therefore, in the Revised 255 Guidelines the Access Board has amended the definitions for “closed functionality” and “ICT” by removing the examples.

D. 255 Chapter 2: Scoping Requirements

Chapter 2 of the Revised 255 Guidelines addresses application and scoping. Most of the comments received on 508 Chapter 2, discussed above in Section IV.B. (Summary of Comments and Responses on Other Aspects of the Proposed Rule—508 Chapter 2: Scoping), are also applicable to 255 Chapter 2. The applicable 255 Chapter paragraph numbers are referenced below. Additionally, we have made minor changes specific to the Revised 255 Chapter 2 in response to comments to improve clarity, accuracy, and ease of use. These changes are described below.

C201.5 Design, Development, and Fabrication

An ICT subject matter expert was concerned that proposed C201.5 did not include the language from existing § 1193.23(b) that directs telecommunications manufacturers to consider using people with disabilities in the design and development process. As the Board explained in the preamble of the NPRM, we did not retain this provision in the Revised 255 Guidelines because “consider” is not mandatory language and therefore is more appropriate for inclusion in advisory material providing guidance on best practices. 80 FR 10912 (Feb. 27, 2015). The Access Board is not persuaded by this commenter that the final rule should include this requirement and, as discussed above, advisory material is not included in the final rule. Therefore, this requirement has not been changed in the final rule.

C205 Software

In the final rule we have relocated an exception that excludes assistive technology software from proposed 501.1 to final C205. This relocation was necessary to avoid confusion and is described in detail above in Section IV.B. (Summary of Comments and Responses on Other Aspects of the Proposed Rule—508 Chapter 2: Scoping—E207).

E. Chapter 3: Functional Performance Criteria

Chapter 3 of the final rule contains functional performance criteria, which are outcome-based provisions that apply when applicable technical requirements (

i.e.,

Chapters 4 and 5) do not address one or more features of ICT. All sections of this chapter are referenced by scoping provisions in Revised 508 Chapter 2 and in Revised 255 Chapter 2. The functional performance criteria are also used to determine equivalent facilitation under both the Revised 508 Standards and the Revised 255 Guidelines (final E101.2 and C101.2).

We have made minor changes to Chapter 3 in response to comments to improve clarity, accuracy, and ease of use. These changes are described below. In addition, two of the provisions in the final rule, 302.2 and 302.5, have been significantly amended in response to comments and a new provision, and 302.9 has been added to the final rule. These provisions are discussed above in Section III.E. (Major Issues—Functional Performance Criteria).

New Functional Performance Criteria Recommended

We received two comments (a coalition of disability rights organizations and an academic research institution) suggesting that the Board add three new functional performance criteria (FPC) to the final rule addressing depth perception, the use of ICT without gestures, and the use of ICT without human skin contact. The purpose of these recommendations was to anticipate possible developments in technology that would require the use of functions not currently addressed in the Revised 508 Standards and 255 Guidelines. Each of these suggestions are discussed below.

The requested addition for a FPC addressing depth perception would require that one visual mode of operation be provided that does not require binocular perception of depth. This commenter did not indicate what functions of ICT would require binocular perception of depth, or where this criterion might apply, other than to suggest that at some point in the future binocular perception of depth might be required to access functions of some ICT.

Similarly, the addition of a “use of ICT without gestures” FPC was suggested by a commenter without a rationale for where the criterion might be used. The functional limitations suggested by the criterion are already addressed in the FPC for limited vision. For example, a gesture-based system

would not be usable by persons with no vision, since they would be unable to perceive where their gestures were to be located or performed without vision. Therefore, providing a mode of operation that does not require user vision would address those functional needs. The commenter did not apply this suggested FPC to any existing technology or technology known to be in development.

Finally, a commenter suggested a new FPC for the use of ICT without human skin contact. It is the Board's understanding that this suggestion is not technically feasible with modern touch screens which rely on capacitive touch. Capacitive touchscreen displays rely on the electrical properties of the human body to detect when and where on a display the user touches. Because of this, capacitive displays can be controlled with very light touches of a finger and generally cannot be used with a mechanical stylus or a gloved hand.

See

“What is `capacitive touchscreen'?”,

http://www.mobileburn.com/definition.jsp?term=capacitive+touchscreen

(last visited Aug. 3, 2016). While resistive, or pressure sensitive touch screens, are available for such functions as signing an ATM screen, they can only recognize one activation point at a time. This technical limitation precludes the use of resistive touch screens for common gestures used with personal devices (for example, pinch-to-zoom on a smart phone).

See

“Okay, but how do touch screens actually work?” at Science Line, the Shortest Distance Between You and Science,

http://scienceline.org/2012/01/okay-but-how-do-touch-screens-actually-work/,

(last visited Aug. 3, 2016). Most touch screen technology today uses capacitive touch.

After consideration, the Board declines to adopt any of the suggested FPC. No specific examples of real-world applications were provided for any of the suggested FPC. The suggested FPC would not have any close correlation to technical criteria in the final rule, and the access barriers theoretically covered by the suggested FPC are substantially addressed by the other FPC in the final rule. Additionally, the suggested FPC lack the necessary research and public input to determine the need and benefit of such additional criteria. Therefore, at this time, the Board declines to adopt the commenters' suggested functional performance criteria.

Section 301 General and 302 Functional Performance Criteria

We received a number of comments from a variety of stakeholders who sought clarification from the Board on the relationship between the FPC and the technical requirements. This issue has been extensively discussed and commented on during the history of this rulemaking. In the 2010 ANPRM, the Board recommended that for ICT meeting the technical requirements, the FPC did not need to be considered at all. After numerous commenters opposed this approach as being too limiting, and likely to lead to the procurement of ICT that is not actually usable by individuals with disabilities, the Board proposed in the 2011 ANPRM that ICT must conform to the FPC, even when the technical criteria are met. In response to the 2011 ANPRM, commenters noted that required conformance to the FPC would be unduly burdensome and costly, and would greatly increase the time for accessible ICT procurement, without notably improving the likelihood that accessible ICT would be procured. Accordingly, in the NPRM, we proposed that the FPC need only be met when the features of the ICT are not addressed by the provisions in Chapters 4 or 5.

Fifteen general comments were received on Chapter 3. These comments encompassed a wide variety of responses to the proposed FPC. Four commenters from disability advocacy organizations praised the approach taken by the Board in the proposed rule of requiring compliance with the FPC when the technical requirements in Chapters 4 and 5 are not applicable. Two commenters, one from an ICT trade association, and one from coalition of disability rights organizations, suggested that we adopt an approach similar to that taken in EN 301 549, where the FPC are expressed using very broad and conditional language. Three commenters, one from an accessible ICT services provider, one from a state/local agency, and one ICT company, urged the Board to reinstate the proposed approach from the 2011 ANPRM and require the use of the FPC and the technical requirements for all ICT. One commenter who self-identified as an individual with a disability recommended that we revise the language of the FPC to focus only on functional limitations, and not use disability-specific terminology. All other commenters approved of the approach proposed in the NPRM of identifying specific functional limitations using disability-specific language and noted that this approach was understandable, usable, and important in providing context for accessible solutions. Along with this support, one commenter from an ICT trade association suggested that the Access Board change the approach of describing the FPC to necessary to ensure accessibility, rather than providing more technical requirements. In the final rule, we have retained the approach proposed in the NPRM and provide disability-specific context for the functional performance criteria.

Finally, five commenters, two from disability rights organizations, two ICT companies, and an ICT trade association, requested further clarification on our proposed approach. The most specific comment came from an ICT trade association which expressed confusion about how to interpret and apply the FPC in Chapter 3 for individuals with low and limited vision in conjunction with the scoping requirement for access to “all ICT functionality” as required by proposed E203 and C201.3. This commenter requested clarification on how persons with limited or low vison were supposed to access functions on ICT such as copiers, for example, when checking copy output quality, or attempting to change paper trays. The comment also raised the concern that some functions, by their nature, such as visual inspection for copy quality, assume a certain level of ability. In response, in the final rule, we have revised the text of the provision for operable parts (final 407.1) to clarify that maintenance functions are separate and distinct from normal operations and are not covered by the provisions in Chapters 3 and 4. Only the functions of ICT used in normal operation must be made accessible. The discussion of 407.1 is found below in Section IV.F. (Summary of Other Comments and Responses on Other Aspects of the Proposed Rule—Chapter 4: Hardware). We also retained the proposed provision on status indicators (final 409.1), which requires that information on the status of ICT hardware, such as the need for maintenance, be provided visually, and by touch or sound. The discussion on 409.1 is found below in Section IV.F. (Summary of Comments and Responses on Other Aspects of the Proposed Rule—Chapter 4: Hardware—409).

After review of all of these comments, we have decided to retain the proposed approach in the final rule of requiring the FPC where the requirements in Chapters 4 and 5 do not address one or more functions of ICT. The Board has also retained the requirement that the FPC are used when evaluating an alternative design or technology under equivalent facilitation (final E101.2 and C101.2). The approach taken in the final rule reflects the longstanding, established practice in the Federal Government of the application of the FPC when technical requirements do

not sufficiently address the features of the particular ICT at issue. It also allows for balance between providing for accessible ICT while encouraging flexibility and innovation in the development of accessible ICT. We did make changes to some of the individual FPC. The major changes are discussed above in Section III.E. (Major Issues—Functional Performance Criteria); other changes are discussed below.

302.1 Without Vision

We received three comments on this section. One of the commenters was from a disability rights organization, one was from a coalition of disability rights organizations, and one was an individual who self-identified as having a disability. One commenter commended us on the functionality and usability of the FPC addressing the functional needs of users with no vision, and had no recommendations for change. The remaining two commenters, a self-identified individual with a disability and a disability rights organization, expressed concern that the requirement was too limited and could lead some agencies to provide only an audio solution, which would not provide access for individuals who are deaf-blind. These commenters recommended that the Board add language requiring the support of auxiliary aids, such as refreshable braille devices, in order to ensure that all potential users without vision could have access. In the final rule, we have declined to modify the criterion because mandating a specific solution such as a refreshable braille keyboard would restrict the development of other potential solutions and would be costly. The Board concluded that retaining the NPRM's open ended approach is the best way to maximize potential solutions for this population of users. In addition, the Revised 508 Standards work in tandem with customized solutions developed as appropriate to accommodate the needs of individuals under Sections 501 and 504 of the Rehabilitation Act. The Revised 508 Standards ensure that all functionality of ICT is accessible to and usable by individuals with disabilities either directly or by supporting the use of assistive technology (final E203).

302.3 Without Perception of Color

We received four comments on this provision. All four commenters generally approved of the proposed provision. Three of these commenters, one from an ICT trade association and two ICT companies, requested guidance on allowable alternatives to color. In response, the Board notes that the supporting materials for the WCAG 2.0 Success Criteria contain technical assistance on the use of color. The remaining commenter, a coalition of disability rights organizations, recommended that we add the word “visual” to clarify the mode of operation. We agree with this comment and have added the word “visual” to describe the mode of operation in the final rule.

302.6 Without Speech

In response to a comment made by a coalition of disability rights organizations, the Board added the phrase where “speech is used for input, control or operation” to clarify in the final rule when this FPC is applied.

302.7 With Limited Manipulation

Three commenters (an accessible ICT services provider, a coalition of disability rights organizations, and an ICT company) requested changes to proposed 302.7. The accessible ICT services provider asserted that the provision was insufficient to address the needs of users with limited manipulation in a touch screen environment because it did not address motions that required more than one finger, such as a pinch zoom gesture, or a twisting motion that required only a single control, but might not work for individuals with some types of limited manipulation abilities. A provision in Chapter 4 addresses this concern by requiring at least one mode of operation operable with one hand that does not require tight grasping, pinching or twisting of the wrist (final 407.6). In addition, there is an exception for input controls for devices for personal use that have input controls that are audibly discernible without activation and operable by touch (final Exception 407.3). The ICT company recommended that we reference the FPC from EN 301 549 clause 4.2.7 “Usage with limited manipulation or strength.” We decline to adopt the recommendation to use the language in EN 301 549 because it combined the functions of limited manipulations with limited strength, which the Board has determined are distinct functions that should be treated separately. Finally, the coalition of disability rights groups recommended that we clarify the text of the provision to make it easier to understand. In response to this comment, we have added the phrase “simultaneous manual operations” to clarify the limitation on this FPC.

F. Chapter 4: Hardware

Chapter 4 contains requirements for hardware that transmits information or has a user interface. Examples of such hardware include computers, information kiosks, and multi-function copy machines. Chapter 4 in the final rule has been substantially reorganized from the proposed rule in response to comments to improve clarity, accuracy and ease of use. The changes are described below.

401 General

An ICT trade association asserted that the Twenty-First Century Communications and Video Accessibility Act (CVAA) was the latest word from Congress, that the Board should avoid mandating technical requirements, and that the Board was exceeding its jurisdiction. As discussed above in Section I.A. (Executive Summary—Purpose and Legal Authority), both the 508 Standards and the 255 Guidelines are within the Board's purview, and the Board has not introduced any conflict with the CVAA.

402 Closed Functionality

ICT with closed functionality has limited functionality by design or choice, which limits or prevents a user from adding assistive technology. The NPRM proposed that ICT with closed functionality with a display screen must be capable of providing speech output (proposed 402).

We received numerous comments on this section. One commenter, a coalition of disability rights organizations, expressed confusion over the concept of closed functionality in software. Closed functionality as it relates to software is discussed at length in Section IV.G (Summary of Comments and Responses on Other Aspects of the Propose Rule—Chapter 5: Software) of this preamble, below, and is not addressed here. The provisions in Chapter 4 only pertain to closed functionality with regard to hardware. The same commenter also recommended that the provisions related to closed functionality be separated into a standalone chapter. The Board has not accepted this recommendation. We proposed that approach in the 2010 ANPRM and it was overwhelmingly rejected by commenters who disagreed with the approach and found it awkward to use. Therefore, in the final rule we have retained the approach from the NPRM.

This commenter, and many others representing disability rights organizations and ICT companies, also expressed concern with the structure and organization of the various provisions related to ICT with closed functionality. One commenter, a disability rights organization, suggested that provisions on transactional outputs

(proposed 409) were in the wrong place and recommended that we combine the section for transactional outputs into the section on closed functionality as a subset of speech-output enabled ICT (final 402.2). Several commenters from industry (a trade association for information technology companies and a large manufacturer of business software and hardware) suggested edits to speech-output enabled ICT consistent with Section 707.5.2 of the 2010 ADA Standards.

The Board agrees that the clarity and coherence of these provisions could be improved by reorganization and has significantly revised the final rule to relocate requirements related to hardware with closed functionality to 402. We moved two exceptions that address audible output on devices with closed functionality from the proposed section on transactional outputs into the section on speech output in the final rule (proposed 409.1 Exceptions 1, 3; final 402.2 Exceptions 5, 6) and we have deleted an exception for duplicative information as unnecessary (proposed 409.1 Exception 2). Additionally, the Board has revised the provision for transactional outputs to clarify that the speech output shall be required to provide all information necessary to verify a transaction (proposed 409.1; final 402.2.2).

We also received numerous comments on technical requirements related to closed functionality. We received comments from copier manufacturers who suggested that a speech output requirement was not needed for any ICT with closed functionality that provides copying functions, because the needs of users with visual impairments were already addressed by provisions in the NPRM requiring magnification (proposed 302.2) and supporting the use of assistive technology (proposed E203). The Board disagrees with this suggestion as we have determined that it is too restrictive and has the potential of leading to a lack of access for users with visual limitations. Therefore, we have not made this recommended change in the final rule (final 302.2). If ICT is capable of attaching assistive technology, then by definition it is not considered to have closed functionality, and the provisions on speech-output for closed functionality do not apply (proposed E103; final E103; proposed C103; final C103). In addition, we have concluded that magnification alone may be insufficient to address the functional needs of users with disabilities, and the functional performance requirement for limited vision has been revised accordingly (proposed 302.2; final 302.2; and Section III.E.1. (Major Issues—Functional Performance Criteria—Limited Vision and Limited Hearing).

Numerous commenters (disability advocacy organizations, individual commenters, and industry) recommended that the Board add a requirement to explicitly address the needs of individuals who are both deaf and blind. At the present time, the only technology that addresses these concerns is in the form of dynamic braille displays, which are prohibitively expensive, costing as much as $3,000 to $5,000 to produce a single line of refreshable braille, and up to $55,000 to produce a full page of refreshable braille, and require significant modifications in order to be incorporated into existing ICT. The Board has concluded that the many examples of ICT with speech output currently available with minimal hardware requirements are sufficient and appropriate to meet the needs of this population, and accordingly no language has been added on this issue.

We received numerous comments on user control from industry, requesting that we clarify when a particular language, such as English was required (proposed 402.2.1). We have determined it is unnecessary to address the use of languages other than English because business requirements would dictate what languages would be used for interface and speech output. If the interface of the ICT was in a language other than English, then the speech output would also be in that language. Similarly, if the interface does not support multiple languages, then the speech output would not have to support multiple languages.

Several commenters (a coalition of disability rights organizations and an academic research institution), supported the requirement for stopping and resuming audio (proposed 402.2.1), stressing that such a feature is essential when audio information is lengthy. An ICT company recommended that the Board reference the provision of EN 301 549 clause 5.1.34. The Board disagrees with this recommendation because the EN provision duplicates the proposed requirement, and also includes additional notes that are confusing and could be interpreted as inconsistent with the basic requirement. The provision in the final rule is renumbered due to restructuring, but is otherwise unchanged from the proposed rule (proposed 402.2.1; final 402.2.4).

We received a significant number of comments on the proposed provision requiring braille instructions on hardware. Five commenters from industry, (three ICT trade associations and two ICT companies), all stated that it would be difficult for global manufacturers to use braille, and suggested that the Board follow the example in EN 301 549 and require tactile indicators instead. On the other side of the issue, three commenters (a coalition of disability rights organizations, a state/local government, and an academic research institution) all supported the proposed provision, and requested that we retain it (proposed 402.2.2; final 402.2.5).

Based on the prior experience with requiring braille instructions under the ADA and ABA Accessibility Guidelines mentioned above, and the favorable response for tactile instructions, the Board has decided to retain the provision. The braille instructions need not be lengthy, so this is an appropriate requirement for copiers and similar types of ICT, in helping provide equal access to users with low vision. We have declined to follow the approach of providing tactile indicators as indicated in EN 301 549, clause 8.5 “Tactile indication of speech mode” in v.1.1.2 (2015-04) since the EN provision as written allowed for the use of braille, but also permits other unspecified tactile indicators. Instead, we have retained the approach from the NPRM, which specifies a known and predictable method of communicating tactile instructions (final 402.2.5).

Industry commenters also objected to the proposed requirement for English braille, arguing that global markets may spur the manufacture of devices for markets where English is not used as the primary language. In response to this concern, we have revised the final rule to specify the use of contracted braille instead of Grade 2 (English) braille. The Board has also modified the reference to provision 703.3.1 of the ADA and ABA Accessibility Guidelines (proposed 402.2.2; final 402.2.5). Finally, several commenters from industry (ICT trade associations and ICT companies), and a coalition of disability rights organizations asserted that personal use devices do not need braille instruction for initiating the speech mode, and noted that the physical space available on a personal use device would be insufficient to accommodate braille instructions. In response to these comments, we have added an exception from the braille requirement for personal use devices (final 402.2.5 Exception).

The NPRM included a provision requiring volume control for ICT that provides private listening (proposed 402.3.1). Commenters from both industry and disability advocacy organizations recommended that this

provision should be consistent with the provision addressing magnetic coupling (proposed 410.3). The Board agrees that the regulatory language could be strengthened to clarify the relationship between private listening and magnetic coupling. Accordingly, we have revised the provision on magnetic coupling to clarify that the requirement to provide effective magnetic coupling applies where ICT delivers output by means of an “audio transducer held up to the ear” (proposed 410.3; final 412.3).

Numerous industry commenters expressed concerns with the proposed requirement that, where ICT provides non-private listening, incremental volume control shall be provided with output amplification up to a level of at least 65 dB, and where ambient noise level of the environment is above 45 dB, a volume gain of at least 20 dB above the ambient level shall be user selectable (proposed 402.3.2). These commenters all criticized the proposed provision on technical grounds as being imprecise and incapable of determination. We were persuaded by these criticisms and have removed the requirement in the final rule.

These commenters also raised concerns with a requirement for non-private listening that requires automatic volume reset to a default level after every use, on the grounds that the proposed rule was unclear what constituted a “use” of the equipment (proposed 402.3.2). We have declined to make a change in response to this concern. Manufacturers have the ability to determine what constitutes a “use” in the context of their device. For example, a device like a walkie-talkie might reset only when turned off and on, whereas a copier machine might reset automatically after several minutes of inactivity (final 402.3.2).

The NPRM proposed in 402.4 to address the size, font, and contrast requirements for characters displayed on a screen. We received comments from a range of stakeholders (ICT trade associations and companies, two state/local, a coalition of disability rights organizations and an academic research institution). Commenters from industry objected to the size and contrast requirements as being vague and needing additional explanation. On the other hand, commenters from the state agencies, disability advocacy organizations, and academia supported the provision as being useful in providing criteria for a more accessible font style and size. The disability advocacy organizations wanted an additional requirement to specify a font size in at least one mode where ICT did not have a screen enlargement feature. We have declined to change the provision (final 402.4). The language of the provision is derived from 707.7.2 in the ADA and ABA Accessibility Guidelines. This language has proven over time to strike a fair balance as a minimum standard that is technically feasible for a broad range of devices. While the Board agrees that a more specific contrast requirement would be beneficial, there is not yet an industry consensus standard for measuring contrast as delivered. We considered the metric for contrast as specified by WCAG 2.0 Level AA Success Criterion 1.4.3 but determined that it is inapplicable here, since it only applies to source content and is not appropriate for displays, as addressed in this provision.

In the NPRM preamble we provided variable message signs (VMS) as an example of ICT with closed functionality that would be covered by Section 402 but noted that we were not aware of any VMS technology that provides audible output.

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