Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities

Federal RegisterAug 4, 2023

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DEPARTMENT OF JUSTICE

28 CFR Part 35

[CRT Docket No. 144; AG Order No. 5729-2023]

RIN 1190-AA79

Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities

AGENCY:

Civil Rights Division, Department of Justice.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Justice (“Department”) is proposing to revise the regulation implementing title II of the Americans with Disabilities Act (“ADA”) in order to establish specific requirements, including the adoption of specific technical standards, for making accessible the services, programs, and activities offered by State and local Government entities to the public through the web and mobile apps.

DATES:

Written comments must be postmarked, and electronic comments must be submitted, on or before October 3, 2023. Commenters should be aware that the electronic Federal Docket Management System (“FDMS”) will accept comments submitted prior to midnight Eastern Time on the last day of the comment period. Written comments postmarked on or before the last day are considered timely even though they may be received after the end of the comment period. Late comments are highly disfavored. The Department is not required to consider late comments.

ADDRESSES:

You may submit comments, identified by RIN 1190-AA79 (or Docket ID No. 144), by any one of the following methods:

•

Federal eRulemaking Website: www.regulations.gov.

Follow the website's instructions for submitting comments.

•

Regular U.S. Mail:

Disability Rights Section, Civil Rights Division, U.S. Department of Justice, P.O. Box 440528, Somerville, MA 02144.

•

Overnight, Courier, or Hand Delivery:

Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 150 M St. NE, 9th Floor, Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT:

Rebecca B. Bond, Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY). This is not a toll-free number. Information may also be obtained from the Department's toll-free ADA Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY). You may obtain copies of this NPRM in an alternative format by calling the ADA Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY). A link to this NPRM is also available on

www.ada.gov.

Electronic Submission of Comments and Posting of Public Comments

Interested persons are invited to participate in this rulemaking by submitting written comments on all aspects of this rule via one of the methods and by the deadline stated above. When submitting comments, please include “RIN 1190-AA79” in the subject field. The Department also invites comments that relate to the economic, environmental, or federalism effects that might result from this rule. Comments that will provide the most assistance to the Department in developing this rule will reference a specific portion of the rule or respond to a specific question, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

Please note that all comments received are considered part of the public record and made available for public inspection at

https://www.regulations.gov.

Such information includes personally identifiable information (“PII”) (such as your name and address). Interested persons are not required to submit their PII in order to comment on this rule. However, any PII that is submitted is subject to being posted to the publicly accessible

https://www.regulations.gov/

site without redaction.

Confidential business information clearly identified in the first paragraph of the comment as such will not be placed in the public docket file.

The Department may withhold from public viewing information provided in comments that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of

https://www.regulations.gov.

To inspect the agency's public docket file in person, you must make an appointment with the agency. Please see the

FOR FURTHER INFORMATION CONTACT

paragraph above for agency contact information.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of Proposed Rule and Need for the Rule

Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a State or local government entity.

The Department uses the phrases “State and local government entities” and “public entities” interchangeably throughout this Notice of Proposed Rulemaking (“NPRM”) to refer to “public entities” as defined in 42 U.S.C. 12131(1) that are covered under part A of title II of the ADA. The Department has consistently made clear that the title II nondiscrimination provision applies to

all

services, programs, and activities of public entities, including those provided via the web. It also includes those provided via mobile applications (“apps”), which, as discussed in the proposed definition, are software applications that are designed to be downloaded and run on mobile devices such as smartphones and tablets. In this NPRM, the Department proposes technical standards for web content and mobile app accessibility to give public entities greater clarity in exactly how to meet their ADA obligations and to help ensure equal access to public entities' services, programs, and activities (also referred to as “government services”) for people with disabilities.

42 U.S.C. 12132.

Public entities are increasingly providing the public access to government services through their web content and mobile apps. For example, government websites and mobile apps often allow the public to obtain information or correspond with local officials without having to wait in line or be placed on hold. Members of the public can also pay fines, apply for State benefits, renew State-issued identification, register to vote, file taxes, request copies of vital records, and complete numerous other tasks via government websites. Individuals can often perform many of these same functions on mobile apps. Additionally, as discussed further, web- and mobile app-based access to these programs and activities has become especially critical since the start of the COVID-19 pandemic. Often, however, State and local government entities' web- and mobile app-based services are not designed accessibly and as a result are not equally available to individuals with disabilities.

It is critical to ensure that people with disabilities can access important web content and mobile apps quickly, easily, independently, and equally. Just as steps can exclude people who use wheelchairs, inaccessible web content can exclude people with a range of disabilities from accessing government services. For example, access to voting information, up-to-date health and safety resources, and mass transit schedules and fare information may depend on having access to websites and mobile apps. With accessible web content and mobile apps, people with disabilities can access government services independently and in some cases with more privacy. By allowing people with disabilities to engage more fully with their governments, accessible web content and mobile apps also promote the equal enjoyment of fundamental constitutional rights, such as the rights to freedom of speech, assembly, association, petitioning, and due process of law.

Accordingly, the Department is proposing technical requirements to provide concrete standards to public entities on how to fulfill their obligations under title II to provide equal access to all of their services, programs, and activities that are provided via the web and mobile apps. The Department believes the requirements described in this rule are necessary to ensure “equality of opportunity, full participation, independent living, and economic self-sufficiency” for individuals with disabilities, as set forth in the ADA.

42 U.S.C. 12101(a)(7).

B. Legal Authority

On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability.

Title II of the ADA, which this rule addresses, applies to State and local government entities. Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, to all activities of State and local government entities regardless of whether the entities receive Federal financial assistance.

Part A of title II protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Section 204(a) of the ADA directs the Attorney General to issue regulations implementing part A of title II but exempts matters within the scope of the authority of the Secretary of Transportation under section 223, 229, or 244.

42 U.S.C. 12101-12213.

42 U.S.C. 12131-65.

The Department of Justice is the only Federal agency with authority to issue regulations under title II, part A, of the ADA regarding the accessibility of State and local government entities' web content and mobile apps. In addition, under Executive Order 12250, the Department of Justice is responsible for ensuring consistency and effectiveness in the implementation of section 504 across the Federal Government (aside from provisions relating to equal employment). Given Congress's intent for parity between section 504 and title II of the ADA, the Department must also ensure that any interpretations of section 504 are consistent with title II (and vice versa).

The Department, therefore, also has a lead role in coordinating interpretations of section 504 (again, aside from provisions relating to equal employment), including its application to websites and mobile apps, across the Federal Government.

See

42 U.S.C. 12134. Section 229(a) and section 244 of the ADA direct the Secretary of Transportation to issue regulations implementing part B of title II, except for section 223.

See

42 U.S.C. 12149, 12164.

Memorandum for Federal Agency Civil Rights Directors and General Counsels from the Office of the Assistant Attorney General, Civil Rights Division, Department of Justice,

https://www.justice.gov/crt/file/1466601/download

[

https://perma.cc/YN3G-J7F9

C. Overview of Key Provisions of This Proposed Regulation

In this NPRM, the Department proposes to add a new subpart H to the title II ADA regulation, 28 CFR part 35, that will set forth technical requirements for ensuring that web content that State and local government entities make available to members of the public or use to offer services, programs, and activities to members of the public is readily accessible to and usable by individuals with disabilities. Web content is information or sensory experience that is communicated to the user by a web browser or other software. This includes text, images, sounds, videos, controls, animations, navigation menus, and documents. Examples of sensory experiences include content like visual works of art or musical performances.

Proposed subpart H also sets forth technical requirements for ensuring the accessibility of mobile apps that a public entity makes available to members of the public or uses to offer services, programs, or activities to members of the public.

See

W3C®, Web Content Accessibility Guidelines 2.1 (June 5, 2018),

https://www.w3.org/TR/WCAG21/#dfn-specific-sensory-experience

[

https://perma.cc/5554-T2R2

The Department proposes to adopt an internationally recognized accessibility standard for web access, the Web Content Accessibility Guidelines (“WCAG”) 2.1

published in June 2018,

https://www.w3.org/TR/WCAG21/

[

https://perma.cc/H2GG-WJVK

], as the technical standard for web content and mobile app accessibility under title II of the ADA. As will be explained in more detail, the Department is proposing to require that public entities comply with the WCAG 2.1 Level AA success criteria and conformance requirements. The applicable technical standard will be referred to hereinafter as “WCAG 2.1.” The applicable conformance level will be referred to hereinafter as “Level AA.” To the extent there are differences between WCAG 2.1 Level AA and the standards articulated in this rule, the standards articulated in this rule prevail. As noted below, WCAG 2.1 Level AA is not restated in full in this rule but is instead incorporated by reference.

https://www.w3.org/TR/WCAG21/

[

https://perma.cc/H2GG-WJVK

In recognition of the challenges that small public entities may face with respect to resources for implementing the proposed new requirements, the Department is proposing to stagger the compliance dates for public entities according to their total population. Total population refers to the size of the public entity's population according to the U.S. Census Bureau or, if the public entity does not have a specific population but belongs to another jurisdiction that does, the population of the jurisdiction to which the entity belongs. This NPRM proposes that a public entity with a total population of 50,000 or more must ensure that web content and mobile apps it makes available to members of the public or uses to offer services, programs, or activities to members of the public, comply with WCAG 2.1 Level AA success criteria and conformance requirements two years after the publication of the final rule. A public entity with a total population of less than 50,000 would have three years to comply with these requirements. In addition, all special district governments would have three years to comply with these requirements.

Table 1—Compliance Dates for WCAG 2.1 Level AA

Public entity size

Compliance date

Fewer than 50,000 persons/Special district governments

Three years after publication of the final rule.

50,000 or more persons

Two years after publication of the final rule.

In addition, the Department is proposing to create an exception from the web accessibility requirements for certain categories of web content, which are described in detail in the section-by-section analysis.

If web content is excepted, that means that the public entity does not need to make the content conform to WCAG 2.1 Level AA, unless there is an applicable limitation to the exception. The proposed limitations describe situations in which the otherwise excepted content must conform to WCAG 2.1 Level AA.

As will be explained more fully, the Department is proposing seven exceptions with some limitations: (1) archived web content; (2) preexisting conventional electronic documents; (3) web content posted by third parties on a public entity's website; (4) third-party web content linked from a public entity's website; (5) course content on a public entity's password-protected or otherwise secured website for admitted students enrolled in a specific course offered by a public postsecondary institution; (6) class or course content on a public entity's password-protected or otherwise secured website for students enrolled, or parents of students enrolled, in a specific class or course at a public elementary or secondary school; and (7) conventional electronic documents that are about a specific individual, their property, or their account and that are password-protected or otherwise secured. The proposed exception for preexisting conventional electronic documents would also apply to conventional electronic documents available through mobile apps. As discussed further, if one of these exceptions applies without a limitation, then the public entity's excepted web content or mobile app would not need to comply with the proposed rule's accessibility requirements. However, each exception is limited in some way. If a limitation applies to an exception, then the public entity would need to ensure that its web content or mobile app complies with the proposed rule's accessibility requirements. The Department is proposing these exceptions—with certain limitations explained in detail later in this NPRM—because it believes that requiring public entities to make the particular content described in these categories accessible under all circumstances could be too burdensome at this time. In addition, requiring accessibility in all circumstances may divert important resources from providing access to key web content and mobile apps that public entities make available or use to offer services, programs, and activities. However, upon request from a specific individual, a public entity may have to provide web content or content in mobile apps to that individual in an accessible format to comply with the entity's existing obligations under other regulatory provisions implementing title II of the ADA, even if an exception applies without a limitation. For example, archived town meeting minutes from 2011 might be excepted from the requirement to comply with WCAG 2.1 Level AA. But, if a person with low vision, for example, requests an accessible version, then the town would still need to consider the person's request under its existing effective communication obligations in 28 CFR 35.160. The way that the town does this could vary based on the facts. For example, in some circumstances, providing a large print version of the minutes might satisfy the town's obligations, and in other circumstances it might need to provide an electronic version that partially complies with WCAG.

The NPRM also proposes to make clear the limited circumstances in which “conforming alternate versions” of web pages, as defined in WCAG 2.1, can be used as a means of achieving accessibility. A conforming alternate version is a separate web page that is accessible, up to date, contains the same information and functionality as the inaccessible web page, and can be reached via a conforming page or an accessibility-supported mechanism. The Department understands that, in practice, it can be difficult to maintain conforming alternate versions because it is often challenging to keep two different versions of web content up to date. For this reason and others discussed later, conforming alternate versions are permissible only when it is not possible to make websites and web content directly accessible due to technical or legal limitations. Also, the NPRM would allow a public entity flexibility to show that its use of other designs, methods, or techniques as alternatives to WCAG 2.1 Level AA provides substantially equivalent or greater accessibility and usability. Additionally, the NPRM proposes that compliance with WCAG 2.1 Level AA is not required under the ADA to the extent that such compliance imposes undue financial and administrative burdens or results in a fundamental alteration of the services, programs, or activities of the public entity. More information about these proposals is provided in the section-by-section analysis.

D. Summary of Costs and Benefits

To estimate the potential costs and benefits associated with this proposed rule, the Department conducted a Preliminary Regulatory Impact Analysis (“PRIA”). The purpose of the PRIA is to inform the public about how the proposed rule creates costs and benefits to society, taking into account both quantitative and qualitative costs and benefits. A more detailed summary of the PRIA is included in section VI of this preamble. The results of the Department's economic analysis indicate that monetized benefits of this rulemaking far exceed the costs. Further, the proposed rule will benefit individuals with disabilities uniquely and in their day-to-day lives in many ways that could not be quantified due to unavailable data. Table 2 below shows a high-level overview of the Department's monetized findings. Non-monetized costs and benefits are discussed in the text.

The Department calculated a variety of estimated costs, including: (1) one-time costs for familiarization with the requirements of the rule; (2) initial testing and remediation costs for government websites; (3) operating and maintenance (“O&M”) costs for government websites; (4) initial testing and remediation costs for mobile apps; (5) O&M costs for mobile apps; (6) school course remediation costs; and (7) initial testing and remediation costs for third-party websites that provide services on behalf of State and local governments. School course content, despite primarily being hosted on websites, is estimated as a separate remediation cost due to its unique structure and content, and because it is primarily on password-protected pages

and therefore unobservable to the Department. The remediation costs include both time and software components. Annualized costs are calculated over a 10-year period that includes both the three-year implementation period and the seven years post-implementation. Annualized costs over this 10-year period are estimated at $2.8 billion assuming a 3 percent discount rate or $2.9 billion assuming a 7 percent discount rate. This includes $15.8 billion in implementation costs accruing during the first three years (the implementation period), undiscounted, and $1.8 billion in annual O&M costs during the next seven years. All values are presented in 2021 dollars as 2022 data were not yet available.

To consider the relative magnitude of the estimated costs of this proposed regulation, the Department compares the costs to revenues for public entities. Because the costs for each government entity type are estimated to be well below 1 percent of revenues, the Department does not believe the rule will be unduly burdensome or costly for public entities.

As a point of reference, the United States Small Business Administration advises agencies that a potential indicator that the impact of a proposed regulation may be “significant” is whether the costs exceed 1 percent of the gross revenues of the entities in a particular sector, although the threshold may vary based on the particular types of entities at issue. The Department estimates that the costs of this rulemaking for each government entity type are far less than 1 percent of revenues.

See

Small Bus. Admin.,

A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act

19 (Aug. 2017),

https://advocacy.sba.gov/wp-content/uploads/2019/07/How-to-Comply-with-the-RFA-WEB.pdf

[

https://perma.cc/MZW6-Y3MH

];

see also

EPA,

EPA's Action Development Process: Final Guidance for EPA Rulewriters: Regulatory Flexibility Act

24 (Nov. 2006),

https://www.epa.gov/sites/default/files/2015-06/documents/guidance-regflexact.pdf

[

https://perma.cc/9XFZ-3EVA

] (providing an illustrative example of a hypothetical analysis under the RFA in which, for certain small entities, economic impact of “[l]ess than 1% for all affected small entities” may be “presumed” to have “no significant economic impact on a substantial number of small entities”).

Benefits of this rulemaking will accrue particularly to individuals with certain types of disabilities. For purposes of the PRIA, the Department has determined that WCAG 2.1 Level AA primarily benefits individuals with vision, hearing, cognitive, and manual dexterity disabilities because the WCAG 2.1 standards are intended to address barriers that often impede access for people with these disability types.

The Department quantified benefits to individuals with these four types of disabilities. Individuals with other types of disabilities may also benefit but, due to data limitations and uncertainties, benefits to these individuals are not directly quantified. Additionally, because accessibly designed web content and mobile apps are easier for everyone to use, benefits will also accrue to people without relevant disabilities

who access State and local government entities' web content and mobile apps.

See

W3C®,

What's New in WCAG 2.1

(Aug. 13, 2020),

https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/

[

https://perma.cc/W8HK-Z5QK

]; W3C®,

Web Content Accessibility Guidelines 2.1

(June 5, 2018),

https://www.w3.org/TR/WCAG21/

[

https://perma.cc/29PG-YX3N

Throughout this proposed rule, the Department uses the phrase “individuals without relevant disabilities” to refer to individuals without vision, hearing, cognitive, or manual dexterity disabilities. Individuals without these disabilities may have other types of disabilities, or they may be individuals without disabilities, but to simplify the discussion in this proposed rule, “individuals without relevant disabilities” will be used to mean individuals without one of these four types of disabilities.

The Department monetized benefits for people with vision, hearing, cognitive, and manual dexterity disabilities as well as people without these disabilities. These benefits included time savings for current users of State and local government entities' web content; time savings for those who switch from other modes of accessing State and local government entities' services, programs, or activities (

e.g.,

phone or in person) to web access or begin to participate in these services, programs, or activities for the first time; time savings for current mobile app users; time savings for students and their parents; and earnings from additional educational attainment. Annual benefits, beginning once the rule is fully implemented, total $11.4 billion. Benefits annualized over a 10-year period that includes both three years of implementation and seven years post-implementation total $9.3 billion per year, assuming a 3 percent discount rate, and $8.9 billion per year, assuming a 7 percent discount rate.

There are many additional benefits that have not been monetized due to a lack of data availability. Benefits that cannot be monetized are discussed qualitatively in the PRIA. These qualitative benefits are central to this proposed rule's potential impact. They include concepts at the core of any civil rights law, such as equality and dignity. Other benefits to individuals include increased independence, increased flexibility, increased privacy, reduced frustration, decreased reliance on companions, and increased program participation. This proposed rule will also benefit governments through increased certainty about what constitutes accessible web content, potential reduction in litigation, and a larger labor market pool.

Comparing annualized costs and benefits, the monetized benefits to society of this rulemaking far outweigh the costs. Net annualized benefits over the first 10 years after publication of this proposed rule total $6.5 billion per year using a 3 percent discount rate and $6.0 billion per year using a 7 percent discount rate (Table 2). Additionally, beyond this 10-year period, benefits are likely to continue to accrue at a greater rate than costs because many of the costs are upfront costs and benefits tend to have a delay before beginning to accrue. Moreover, the Department expects the net annualized benefit estimate is an underestimate, as it does not include the significant qualitative benefits that the Department was unable to monetize. For a complete comparison of costs and benefits, please see Section 1.2, Summary of Benefits and Costs, in the corresponding PRIA.

Table 2—10-Year Average Annualized Comparison of Costs and Benefits

Benefit type

3% Discount

rate

7% Discount

rate

Average annualized costs (millions)

$2,846.6

$2,947.9

Average annualized benefits (millions)

9,316.3

8,937.2

Net benefits (millions)

6,469.7

5,989.3

Cost-to-benefit ratio

0.3

II. Relationship to Other Laws

Title II of the ADA and the Department of Justice's implementing regulation state that except as otherwise provided, the ADA shall not be construed to apply a lesser standard than title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or its accompanying regulations.

They further state that the ADA does not invalidate or limit the remedies, rights, and procedures of any other laws that provide greater or equal protection for people with disabilities or people associated with them.

42 U.S.C. 12201(a); 28 CFR 35.103(a).

42 U.S.C. 12201(b); 28 CFR 35.103(b).

The Department recognizes that entities subject to title II of the ADA may also be subject to other statutes that prohibit discrimination on the basis of disability. Compliance with the Department's title II regulation does not necessarily ensure compliance with other statutes and their implementing regulations. Title II entities are also obligated to fulfill the ADA's title I requirements in their capacity as employers, and those requirements are distinct from the obligations under this rule.

Education is another context in which entities have obligations to comply with other laws imposing affirmative obligations regarding individuals with disabilities. The Department of Education's regulations implementing the Individuals with Disabilities Education Act (“IDEA”) and section 504 of the Rehabilitation Act provide longstanding, affirmative obligations on covered schools to identify children with disabilities, and both require covered schools to provide a Free Appropriate Public Education (“FAPE”).

This rulemaking would build on, and would not supplant, those preexisting requirements. A public entity must continue to meet all of its existing obligations under other laws. A discussion of how this rule adds to the existing educational legal environment is included under the preamble discussion of the relevant educational exception.

See

20 U.S.C. 1412; 34 CFR 104.32-104.33.

III. Background

A. ADA Statutory and Regulatory History

The ADA broadly protects the rights of individuals with disabilities in important areas of everyday life, such as in employment, access to State and local government entities' services, places of public accommodation, and transportation. The ADA also requires newly designed and constructed or altered State and local government entities' facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities.

Section 204(a) of title II and section 306(b) of title III direct the Attorney General to promulgate regulations to carry out the provisions of titles II and III, other than certain provisions dealing specifically with transportation.

Title II, part A, applies to State and local government entities and protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities.

42 U.S.C. 12101

et seq.

42 U.S.C. 12134, 12186(b).

On July 26, 1991, the Department issued its final rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III), and include the ADA Standards for Accessible Design (“ADA Standards”).

At that time, the web was in its infancy and was thus not used by State and local government entities as a means of providing services or information to the public. Thus, web content was not mentioned in the Department's title II regulation. Only a few years later, however, as web content of general interest became available, public entities began using web content to provide information to the public.

Title III prohibits discrimination on the basis of disability in the full and equal enjoyment of places of public accommodation (privately operated entities whose operations affect commerce and fall within at least one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (facilities intended for nonresidential use by a private entity and whose operations affect commerce, such as factories, warehouses, or office buildings)—to comply with the ADA Standards. 42 U.S.C. 12181-89.

B. History of the Department's Title II Web-Related Interpretation and Guidance

The Department first articulated its interpretation that the ADA applies to websites of covered entities in 1996.

Under title II, this includes ensuring that individuals with disabilities are not, by reason of such disability, excluded from participation in or denied the benefits of the services, programs, and activities offered by State and local government entities, including those offered via the web, such as education services, voting, town meetings, vaccine registration, tax filing systems, and applications for benefits.

The Department has since reiterated this interpretation in a variety of online contexts.

Title II of the ADA also applies when public entities use mobile apps to offer their services, programs, and activities.

See

Letter for Tom Harkin, U.S. Senator, from Deval L. Patrick, Assistant Attorney General, Civil Rights Division, Department of Justice (Sept. 9, 1996),

https://www.justice.gov/crt/foia/file/666366/download

[

https://perma.cc/56ZB-WTHA

See

42 U.S.C. 12132.

See

U.S. Dep't of Just.,

Guidance on Web Accessibility and the ADA, ADA.gov

(Mar. 18, 2022),

https://www.ada.gov/resources/web-guidance/

[

https://perma.cc/WH9E-VTCY

]; Settlement Agreement Between the United States of America and the Champaign-Urbana Mass Transit District (Dec. 14, 2021),

https://www.ada.gov/champaign-urbana_sa.pdf

[

https://perma.cc/VZU2-E6FZ

]; Consent Decree,

United States

The Regents of the Univ. of Cal.

(Nov. 20, 2022),

https://www.justice.gov/opa/press-release/file/1553291/download

[

https://perma.cc/9AMQ-GPP3

]; Consent Decree,

Dudley

Miami Univ.

(Oct. 17, 2016),

https://www.ada.gov/miami_university_cd.html

[

https://perma.cc/T3FX-G7RZ

]; Settlement Agreement Between the United States of America and the City and County of Denver, Colorado Under the Americans with Disabilities Act (Jan. 8, 2018),

https://www.ada.gov/denver_pca/denver_sa.html

[

https://perma.cc/U7VE-MBSG

]; Settlement Agreement Between the United States of America and Nueces County, Texas Under the Americans with Disabilities Act (effective Jan. 30, 2015),

https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html

[

https://perma.cc/TX66-WQY7

]; Settlement Agreement Between the United States of America, Louisiana Tech University, and the Board of Supervisors for the University of Louisiana System Under the Americans with Disabilities Act (July 22, 2013),

https://www.ada.gov/louisiana-tech.htm

[

https://perma.cc/78ES-4FQR

Many public entities now regularly offer many of their services, programs, and activities through web content and mobile apps, and the Department describes in detail the ways in which public entities have been doing so later in this section. To ensure equal access to such services, programs, and activities, the Department is undertaking this rulemaking to provide public entities with more specific information about how to meet their nondiscrimination obligations in the web and mobile app contexts.

As with many other statutes, the ADA's requirements are broad and its implementing regulations do not include specific standards for every obligation under the statute. This has been the case in the context of web accessibility under the ADA. Because the Department has not adopted specific technical requirements for web content through rulemaking, public entities have not had specific direction on how to comply with the ADA's general requirements of nondiscrimination and effective communication. However, public entities still must comply with these ADA obligations with respect to their web content and mobile apps, including before this rule's effective date.

The Department has consistently heard from members of the public—especially public entities and people with disabilities—that there is a need for additional information on how to specifically comply with the ADA in this context. In June 2003, the Department published a document titled “Accessibility of State and Local Government websites to People with Disabilities” (

https://www.ada.gov/websites2.htm

[

https://perma.cc/Z7JT-USAN

]), which provides tips for State and local government entities on ways they can make their websites accessible so that they can better ensure that people with disabilities have equal access to the services, programs, and activities that are provided through those websites.

In March 2022, the Department released additional guidance addressing web accessibility for people with disabilities.

This technical assistance expanded on the Department's previous ADA guidance by providing practical tips and resources for making websites accessible for both title II and title III entities. It also reiterated the Department's longstanding interpretation that the ADA applies to all services, programs, and activities of covered entities, including when they are offered via the web.

U.S. Dep't of Just.,

Guidance on Web Accessibility and the ADA, ADA.gov

(Mar. 18, 2022),

https://www.ada.gov/resources/web-guidance/

[

https://perma.cc/874V-JK5Z

The Department's 2003 guidance on State and local government entities' websites noted that “an agency with an inaccessible website may also meet its legal obligations by providing an alternative accessible way for citizens to use the programs or services, such as a staffed telephone information line,” while also acknowledging that this is unlikely to provide an equal degree of access.

The Department's March 2022 guidance did not include 24/7 staffed telephone lines as an alternative to accessible websites. Given the way the modern web has developed, the Department no longer believes 24/7 staffed telephone lines can realistically provide equal access to people with disabilities. Websites—and often mobile apps—allow the public to get information or request a service within just a few minutes. Getting the same information or requesting the same service using a staffed telephone line takes more steps and may result in wait times or difficulty getting the information. For example, State and local government entities' websites may allow members of the public to quickly review large quantities of information, like information about how to register for government services, information on pending government ordinances, or instructions about how to apply for a government benefit. Members of the public can then use government websites to promptly act on that information by, for example, registering for programs or activities, submitting comments on pending government ordinances, or filling out an application for a government benefit. A member of the public could not realistically accomplish these tasks efficiently over the phone. Additionally, a person with a disability who cannot use an inaccessible online tax form might have to call to request assistance with filling out either online or mailed forms, which could involve significant delay, added costs, and may require providing private information such as banking details or Social Security numbers over the phone without the benefit of certain security features available for online transactions. Finally, calling a staffed telephone line lacks the privacy of looking up information on a website. A caller needing public safety resources, for example, might be unable to access a private location to ask for help on the phone, whereas an accessible website would allow users to privately locate resources. For these reasons, the Department does not now believe that a staffed telephone line—even if it is offered 24/7—provides equal access in the way that an accessible website can.

U.S. Dep't of Just.,

Accessibility of State and Local Government websites to People with Disabilities, ADA.gov

(June 2003),

https://www.ada.gov/websites2.htm

[

https://perma.cc/Z7JT-USAN

C. The Department's Previous Web Accessibility-Related Rulemaking Efforts

The Department has previously pursued rulemaking efforts regarding website accessibility under title II. On July 26, 2010, the Department's advance notice of proposed rulemaking (“ANPRM”) titled “Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations” was published in the

Federal Register

The ANPRM announced that the Department was considering revising the regulations implementing titles II and III of the ADA to establish specific requirements for State and local government entities and public accommodations to make their websites accessible to individuals with disabilities. In the ANPRM, the Department sought information regarding what standards, if any, it should adopt for web accessibility; whether the Department should adopt coverage limitations for certain entities, like small businesses; and what resources and services are available to make existing websites accessible to individuals with disabilities. The Department also requested comments on the costs of making websites accessible; whether there are effective and reasonable alternatives to make websites accessible that the Department should consider permitting; and when any web accessibility requirements adopted by the Department should become effective. The Department received approximately 400 public comments addressing issues germane to both titles II and III in response to this ANPRM. The Department later announced that it decided to pursue separate rulemakings addressing website accessibility under titles II and III.

75 FR 43460 (July 26, 2010).

See

Department of Justice—Fall 2015 Statement of Regulatory Priorities,

http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html

[

https://perma.cc/YF2L-FTSK

On May 9, 2016, the Department followed up on its 2010 ANPRM with a detailed Supplemental ANPRM that was published in the

Federal Register

. The Supplemental ANPRM solicited public comment about a variety of issues regarding establishing technical standards for web access under title II.

The Department received more than 200 public comments in response to the title II Supplemental ANPRM.

Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities, 81 FR 28658 (May 9, 2016).

On December 26, 2017, the Department published a Notice in the

Federal Register

withdrawing four rulemaking actions, including the titles II and III web rulemakings, stating that it was evaluating whether promulgating specific web accessibility standards through regulations was necessary and appropriate to ensure compliance with the ADA.

The Department has also previously stated that it would continue to review its entire regulatory landscape and associated agenda, pursuant to the regulatory reform provisions of Executive Order 13771 and Executive Order 13777.

Those Executive Orders

were revoked by Executive Order 13992 in early 2021.

Nondiscrimination on the Basis of Disability; Notice of Withdrawal of Four Previously Announced Rulemaking Actions, 82 FR 60932 (Dec. 26, 2017).

See

Letter for Charles E. Grassley, U.S. Senator, from Stephen E. Boyd, Assistant Attorney General, Civil Rights Division, Department of Justice (Oct. 11, 2018),

https://www.grassley.senate.gov/imo/media/doc/2018-10-11%20DOJ%20to%20Grassley%20-%20ADA%20website%20Accessibility.pdf

[

https://perma.cc/8JHS-FK2Q

The Department is now reengaging in efforts to promulgate regulations establishing technical standards for web accessibility for public entities. Accordingly, the Department has begun this distinct rulemaking effort to address web access under title II of the ADA.

D. Need for Department Action

1. Use of Web Content by Title II Entities

Public entities regularly use the web to disseminate information and offer programs and services to the public. Public entities use a variety of websites to streamline their programs and services. Members of the public routinely make online service requests—from requesting streetlight repairs and bulk trash pickups to reporting broken parking meters—and can often check the status of a service request online. Public entities' websites also offer the opportunity for people to renew their vehicle registrations, submit complaints, purchase event permits, and pay traffic fines and property taxes, making some of these otherwise time-consuming tasks relatively easy and expanding their availability beyond regular business hours. Moreover, applications for many Federal benefits, such as unemployment benefits and food stamps, are available through State websites.

People also rely on public entities' websites to engage in civic participation, particularly when more individuals prefer or need to stay at home in light of changes to preferences and behavior resulting from the COVID-19 pandemic. The Department believes that although many public health measures addressing the COVID-19 pandemic are no longer in place, there have been durable changes to State and local government entities' operations and public preferences that necessitate greater access to online services, programs, and activities.

People can now frequently watch local public hearings, read minutes from community meetings, or take part in live chats with government officials on the websites of State and local government entities. Many public entities allow voters to begin the voter registration process and obtain candidate information on their websites. Individuals interested in running for local public offices can often find pertinent information concerning candidate qualifications and filing requirements on these websites as well. The websites of public entities also include information about a range of issues of concern to the community and about how people can get involved in community efforts to improve the administration of government services.

Many public entities use online resources to promote access to public benefits. People can use websites of public entities to file for unemployment or other benefits and find and apply for job openings. Access to these online functions became even more crucial during the COVID-19 pandemic, when millions of Americans lost their jobs and government services were often not available in person.

As noted previously, the Department believes that although many of these services have become available in person again as COVID-19 public health measures have ended, State and local government entities will continue to offer these services online due to durable shifts in preferences and expectations resulting from the pandemic. For example, through the websites of State and local government entities, business owners can register their businesses, apply for occupational and professional licenses, bid on contracts to provide products and services to public entities, and obtain information about laws and regulations with which they must comply. The websites of many State and local government entities also allow members of the public to research and verify business licenses online and report unsavory business practices. Access to these online services can be particularly important for any services that have not resumed in-person availability.

See

Rakesh Kochhar & Jesse Bennet,

U.S. Labor Market Inches Back from the Covid-19 Shock, but Recovery is Far from Complete,

Pew Research Center (Apr. 14, 2021),

https://www.pewresearch.org/fact-tank/2021/04/14/u-s-labor-market-inches-back-from-the-covid-19-shock-but-recovery-is-far-from-complete/

[

https://perma.cc/29E5-LMXM

Public entities are also using websites as an integral part of public education. Public schools at all levels, including public colleges and universities, offer programs, reading material, and classroom instruction through websites. Access to these sites became even more critical during the COVID-19 pandemic, when, at one point, all U.S. public school buildings were closed.

Web access is essential, and, during part of the COVID-19 pandemic, it was often the only way for State and local government entities to provide students with educational services, programs, and activities like public school classes and exams. As noted previously, the Department believes durable changes to preferences and behavior due to the COVID-19 pandemic will result in many educational activities continuing to be offered online. Most public colleges and universities rely heavily on websites and other online technologies in the application process for prospective students; for housing eligibility and on-campus living assignments; course registration, assignments, and discussion groups; and for a wide variety of administrative and logistical functions in which students and staff must participate. Similarly, in many public elementary and secondary school settings, communications via the web are how teachers and administrators communicate grades, assignments, and administrative matters to parents and students.

See The Coronavirus Spring: The Historic Closing of U.S. Schools (A Timeline),

Education Week (July 1, 2020),

https://www.edweek.org/leadership/the-coronavirus-spring-the-historic-closing-of-u-s-schools-a-timeline/2020/07

[

https://perma.cc/47E8-FJ3U

As noted previously, access to the web has become increasingly important as a result of the COVID-19 pandemic, which shut down workplaces, schools, and in-person services, and has forced millions of Americans to stay home for extended periods.

In response, the American public has turned to the web for work, activities, and learning.

In fact, a study conducted in April 2021 found that 90 percent of adults say the web “has been at least important to them personally during the pandemic.”

Fifty-eight percent say it has been

essential.

Web access can be particularly important for those who live in rural communities and need to travel long distances to reach certain physical locations like schools and libraries.

See

Colleen McClain et al.,

The internet and the Pandemic,

Pew Research Center (Sep. 1, 2021),

https://www.pewresearch.org/internet/2021/09/01/the-internet-and-the-pandemic/

[

https://perma.cc/4WVA-FQ9P

See

Kerry Dobransky & Eszter Hargittai,

Piercing the Pandemic Social Bubble: Disability and Social Media Use About COVID-19,

American Behavioral Scientist (Mar. 29, 2021),

https://doi.org/10.1177/00027642211003146.

A Perma archive link was unavailable for this citation.

McClain et al.,

The internet and the Pandemic,

at 3.

Id.

John Lai & Nicole O. Widmar,

Revisiting the Digital Divide in the COVID-19 Era,

43 Applied Econ. Perspectives and Pol'y 458 (2020),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7675734/

[

https://perma.cc/Y75D-XWCT

Currently, a large number of Americans interact with public entities remotely and many State and local government entities provide vital information and services for the general public online, including information on recreational and educational programs, school closings, State travel restrictions,

food assistance and employment, guidance for health care providers, and workplace safety.

Access to such web-based information and services, while important for everyone during the pandemic, took on heightened importance for people with disabilities, many of whom face a greater risk of COVID-19 exposure, serious illness, and death.

See, e.g., Coronavirus Disease 2019 (COVID-19) Outbreak, Maryland.gov, https://coronavirus.maryland.gov/

[

https://perma.cc/NAW4-6KP4

];

Covid19.CA, California.gov, https://covid19.ca.gov/

[

https://perma.cc/BL9C-WTJP

];

Washington State Coronavirus Response,

Washington State,

https://coronavirus.wa.gov/

[

https://perma.cc/KLA4-KY53

See

Hannah Eichner,

The Time is Now to Vaccinate High-Risk People with Disabilities,

National Health Law Program (Mar. 15, 2021),

https://healthlaw.org/the-time-is-now-to-vaccinate-high-risk-people-with-disabilities/

[

https://perma.cc/8CM8-9UC4

According to the CDC, some people with disabilities “might be more likely to get infected or have severe illness because of underlying medical conditions, congregate living settings, or systemic health and social inequities. All people with serious underlying chronic medical conditions like chronic lung disease, a serious heart condition, or a weakened immune system seem to be more likely to get severely ill from COVID-19.”

A report by the National Council on Disability indicated that COVID-19 has a disproportionately negative impact on people with disabilities' access to healthcare, education, and employment, among other areas, making remote access to these opportunities via the web even more important.

See People with Disabilities,

Centers for Disease Control and Prevention,

https://www.cdc.gov/ncbddd/humandevelopment/covid-19/people-with-disabilities.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fneed-extra-precautions%2Fpeople-with-disabilities.html

[

https://perma.cc/WZ7U-2EQE

See 2021 Progress Report: The Impact of COVID-19 on People with Disabilities,

National Council on Disability (Oct. 29, 2021),

https://ncd.gov/progressreport/2021/2021-progress-report

[

https://perma.cc/96L7-XMKZ

Individuals with disabilities can often be denied equal access to many services, programs, and activities because many public entities' web content is not fully accessible. Thus, there is a digital divide between the ability of people with certain types of disabilities and people without those disabilities to access the services, programs, and activities of their State and local government entities.

2. Use of Mobile Applications by Title II Entities

The Department is also proposing that public entities make their mobile apps accessible under proposed § 35.200 because public entities also use mobile apps to offer their services, programs, and activities to the public. As discussed, a mobile app is a software application that runs on mobile devices. Mobile apps are distinct from a website that can be accessed by a mobile device because, in part, mobile apps are not directly accessible on the web—they are often downloaded on a mobile device.

A mobile website, on the other hand, is a website that is designed so that it can be accessed by a mobile device similarly to how it can be accessed on a desktop computer.

Mona Bushnell,

What Is the Difference Between an App and a Mobile website?,

Business News Daily (updated Aug. 2, 2022),

https://www.businessnewsdaily.com/6783-mobile-website-vs-mobile-app.html

[

https://perma.cc/9LKC-GUEM

Id.

Public entities use mobile apps to provide services and reach the public in various ways. For example, during the COVID-19 pandemic, when many State and local government entities' offices were closed, public entities used mobile apps to inform people about benefits and resources, to provide updates about the pandemic, and as a means to show proof of vaccination status, among other things.

Also, using a public entity's mobile app, residents are able to submit nonemergency service requests, such as cleaning graffiti or repairing a street light outage, and track the status of these requests. Public entities' apps take advantage of common features of mobile devices, such as camera and Global Positioning System (“GPS”) functions, so individuals can provide public entities with a precise description and location of issues.

These may include issues such as potholes, physical barriers created by illegal dumping or parking, or curb ramps that need to be fixed to ensure accessibility for some people with disabilities.

Some public transit authorities have transit apps that use a mobile device's GPS function to provide bus riders with the location of nearby bus stops and real-time arrival and departure times.

In addition, public entities are also using mobile apps to assist with emergency planning for natural disasters like wildfires; provide information about local schools; and promote tourism, civic culture, and community initiatives.

See, e.g., COVID-19 Virginia Resources,

Virginia Department of Social Services,

https://apps.apple.com/us/app/covid-19-virginia-resources/id1507112717

[

https://perma.cc/LP6N-WC9K

]; Chandra Steele,

Does My State Have a COVID-19 Vaccine App,

PC Mag (updated Feb. 10, 2022),

https://www.pcmag.com/how-to/does-my-state-have-a-covid-19-vaccine-app

[

https://perma.cc/H338-MCWC

See Using Mobile Apps in Government,

IBM Ctr. for the Bus. of Gov't, at 11 (2015),

https://www.businessofgovernment.org/sites/default/files/Using%20Mobile%20Apps%20in%20Government.pdf

[

https://perma.cc/248X-8A6C

Id.

at 32.

Id.

at 31.

Id.

at 8.

3. Barriers to Web and Mobile App Accessibility

Millions of individuals in the United States have disabilities that can affect their use of the web and mobile apps. Many of these individuals use assistive technology to enable them to navigate websites or access information contained on those sites. For example, individuals who are unable to use their hands may use speech recognition software to navigate a website, while individuals who are blind may rely on a screen reader to convert the visual information on a website into speech. Many websites and mobile apps fail to incorporate or activate features that enable users with certain types of disabilities to access all of the information or elements on the website or app. For instance, individuals who are deaf may be unable to access information in web videos and other multimedia presentations that do not have captions. Individuals with low vision may be unable to read websites or mobile apps that do not allow text to be resized or do not provide enough contrast. Individuals with limited manual dexterity or vision disabilities who use assistive technology that enables them to interact with websites may be unable to access sites that do not support keyboard alternatives for mouse commands. These same individuals, along with individuals with cognitive and vision disabilities, often encounter difficulty using portions of websites that require timed responses from users but do not give users the opportunity to indicate that they need more time to respond.

Individuals who are blind or have low vision often confront significant barriers to accessing websites and mobile apps. For example, a study from the University of Washington analyzed approximately 10,000 mobile apps and found that many are highly inaccessible to people with disabilities.

The study found that 23 percent of the mobile apps reviewed did not provide content description of images for most of their image-based buttons. As a result, the functionality of those buttons is not accessible for people who use screen

readers.

Additionally, other mobile apps may be inaccessible if they do not allow text resizing, which can provide larger text for persons with vision disabilities.

See Large-Scale Analysis Finds Many Mobile Apps Are Inaccessible,

University of Washington CREATE,

https://create.uw.edu/initiatives/large-scale-analysis-finds-many-mobile-apps-are-inaccessible/

[

https://perma.cc/442K-SBCG

Id.

See

Chase DiBenedetto,

4 ways mobile apps could be a lot more accessible,

Mashable (Dec. 9, 2021),

https://mashable.com/article/mobile-apps-accessibility-fixes

[

https://perma.cc/WC6M-2EUL

Furthermore, many websites provide information visually, without features that allow screen readers or other assistive technology to retrieve information on the website so it can be presented in an accessible manner. A common barrier to website accessibility is an image or photograph without corresponding text describing the image. A screen reader or similar assistive technology cannot “read” an image, leaving individuals who are blind with no way of independently knowing what information the image conveys (

e.g.,

a simple icon or a detailed graph). Similarly, if websites lack navigational headings or links that facilitate navigation using a screen reader, it will be difficult or impossible for a someone using a screen reader to understand.

Additionally, these websites may fail to present tables in a way that allows the information in the table to be interpreted by someone who is using a screen reader.

Web-based forms, which are an essential part of accessing government services, are often inaccessible to individuals with disabilities who use screen readers. For example, field elements on forms, which are the empty boxes on forms that hold specific pieces of information, such as a last name or telephone number, may lack clear labels that can be read by assistive technology. Inaccessible form fields make it difficult for persons using screen readers to fill out online forms, pay fees and fines, submit donations, or otherwise participate in government services, programs, or activities using a website. Some governmental entities use inaccessible third-party websites to accept online payments, while others request public input through their own inaccessible websites. These barriers greatly impede the ability of individuals with disabilities to access the services, programs, and activities offered by public entities on the web. In many instances, removing certain website barriers is neither difficult nor especially costly. For example, the addition of invisible attributes known as alt text or alt tags to an image helps orient an individual using a screen reader and allows them to gain access to the information on the website. Alt text can be added to the coding of a website without any specialized equipment.

Similarly, adding headings, which facilitate page navigation for those using screen readers, can often be done easily as well.

See, e.g.,

W3C®,

Easy Checks—A First Review of Web Accessibility,

(updated Jan. 31, 2023),

https://www.w3.org/WAI/test-evaluate/preliminary/

[

https://perma.cc/N4DZ-3ZB8

W3C®,

Tables Tutorial

(updated Feb. 16, 2023),

https://www.w3.org/WAI/tutorials/tables/

[

https://perma.cc/FMG2-33C4

W3C®,

Images Tutorial

(Feb. 08, 2022),

https://www.w3.org/WAI/tutorials/images/

[

https://perma.cc/G6TL-W7ZC

W3C®,

Providing Descriptive Headings

(June 20, 2023),

https://www.w3.org/WAI/WCAG21/Techniques/general/G130.html

[

https://perma.cc/XWM5-LL6S

4. Voluntary Compliance With Technical Standards for Web Accessibility Has Been Insufficient in Providing Access

The web has changed significantly and its use has become far more prevalent since Congress enacted the ADA in 1990 and the Department subsequently promulgated its first ADA regulations. Neither the ADA nor the Department's regulations specifically addressed public entities' use of websites and mobile apps to provide their services, programs, and activities. Congress contemplated, however, that the Department would apply title II, part A of the statute in a manner that evolved over time and it delegated authority to the Attorney General to promulgate regulations to carry out the ADA mandate under title II, part A.

Consistent with this approach, the Department stated in the preamble to the original 1991 ADA regulations that the regulations should be interpreted to keep pace with developing technologies.

See

H.R. Rep. No. 101-485, pt. 2, at 108 (1990); 42 U.S.C. 12134(a).

28 CFR part 36, app. B.

Since 1996, the Department has consistently taken the position that the ADA applies to the web content of State and local government entities. This interpretation comes from title II's application to “all services, programs, and activities provided or made available by public entities.”

The Department has affirmed the application of the statute to websites in multiple technical assistance documents over the past two decades.

Further, the Department has repeatedly enforced this obligation and worked with State and local government entities to make their websites accessible, such as through Project Civic Access, an initiative to promote local governments' compliance with the ADA by eliminating physical and communication barriers impeding full participation by people with disabilities in community life.

See

28 CFR 35.102.

U.S. Dep't of Just.,

Accessibility of State and Local Government websites to People with Disabilities

(2003),

https://www.ada.gov/websites2.htm

[

https://perma.cc/Z7JT-USAN

]; U.S. Dep't of Just.,

Chapter 5: website Accessibility Under Title II of the ADA, ADA Best Practices Tool Kit for State and Local Governments, Ada.gov

(May 7, 2007),

https://www.ada.gov/pcatoolkit/chap5toolkit.htm

[

https://perma.cc/VM3M-AHDJ

]; U.S. Dep't of Just.,

Guidance on Web Accessibility and the ADA, Ada.gov

(Mar. 18, 2022),

https://https://www.ada.gov/resources/web-guidance/

[

https://perma.cc/874V-JK5Z

U.S. Dep't of Just.,

Project Civic Access, Ada.gov, https://www.ada.gov/civicac.htm

[

https://perma.cc/B6WV-4HLQ

A variety of voluntary standards and structures have been developed for the web through nonprofit organizations using multinational collaborative efforts. For example, domain names are issued and administered through the internet Corporation for Assigned Names and Numbers (“ICANN”), the internet Society (“ISOC”) publishes computer security policies and procedures for websites, and the World Wide Web Consortium (“W3C®”) develops a variety of technical standards and guidelines ranging from issues related to mobile devices and privacy to internationalization of technology. In the area of accessibility, the Web Accessibility Initiative (“WAI”) of the W3C® created the Web Content Accessibility Guidelines (“WCAG”).

Many organizations, however, have indicated that voluntary compliance with these accessibility guidelines has not resulted in equal access for people with disabilities; accordingly, they have urged the Department to take regulatory action to ensure web and mobile app accessibility.

The National Council on Disability, an independent Federal agency that advises the President, Congress, and other agencies about programs, policies, practices, and procedures affecting people with disabilities, has similarly emphasized the need for regulatory action on this issue.

The Department has also heard

from State and local government entities and businesses asking for clarity on the ADA's requirements for websites through regulatory efforts.

See, e.g.,

Letter for U.S. Dep't of Just. from American Council of the Blind et al. (Feb. 28, 2022),

https://acb.org/accessibility-standards-joint-letter-2-28-22

[

https://perma.cc/R77M-VPH9

] (citing research showing persistent barriers in digital accessibility); Letter for U.S. Dep't of Just. from Consortium for Citizens with Disabilities (Mar. 23, 2022),

https://www.c-c-d.org/fichiers/CCD-Web-Accessibility-Letter-to-DOJ-03232022.pdf

[

https://perma.cc/Q7YB-UNKV

National Council on Disability,

The Need for Federal Legislation and Regulation Prohibiting Telecommunications and Information Services Discrimination

(Dec. 19, 2006),

https://www.ncd.gov/publications/2006/Dec282006

[

https://perma.cc/7HW5-NF7P

] (discussing how competitive market forces have not proven sufficient to provide individuals with disabilities access to telecommunications and information

services);

see also, e.g.,

National Council on Disability,

National Disability Policy: A Progress Report

(Oct. 7, 2016),

https://ncd.gov/progressreport/2016/progress-report-october-2016

[

https://perma.cc/J82G-6UU8

] (urging the Department to adopt a web accessibility regulation).

See, e.g.,

Letter for U.S. Dep't of Just. from Nat'l Ass'n of Realtors (Dec. 13, 2017),

https://www.narfocus.com/billdatabase/clientfiles/172/3/3058.pdf

[

https://perma.cc/Z93F-K88P

In light of the long regulatory history and the ADA's current general requirement to make all services, programs, and activities accessible, the Department expects that public entities have made strides to make their web content accessible since the 2010 ANPRM was published. However, despite the availability of voluntary web and mobile app accessibility standards; the Department's clearly stated position that all services, programs, and activities of public entities, including those available on websites, must be accessible; and case law supporting that position, individuals with disabilities continue to struggle to obtain access to the websites of public entities.

As a result, the Department has brought enforcement actions to address web access, resulting in a significant number of settlement agreements with State and local government entities.

See, e.g., Meyer

Walthall,

528 F. Supp. 3d 928, 959 (S.D. Ind. 2021) (“[T]he Court finds that Defendants' websites constitute services or activities within the purview of Title II and section 504, requiring Defendants to provide effective access to qualified individuals with a disability.”);

Price

City of Ocala, Fla.,

375 F. Supp. 3d 1264, 1271 (M.D. Fla. 2019) (“Title II undoubtedly applies to websites . . . .”);

Payan

Los Angeles Cmty. Coll. Dist.,

No. 2:17-CV-01697-SVW-SK, 2019 WL 9047062, at *12 (C.D. Cal. Apr. 23, 2019) (“[T]he ability to sign up for classes on the website and to view important enrollment information is itself a `service' warranting protection under Title II and section 504.”);

Eason

New York State Bd. of Elections,

No. 16-CV-4292 (KBF), 2017 WL 6514837, at *1 (S.D.N.Y. Dec. 20, 2017) (stating, in a case involving a State's website, that “Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act . . . , long ago provided that the disabled are entitled to meaningful access to a public entity's programs and services. Just as buildings have architecture that can prevent meaningful access, so too can software.”);

Hindel

Husted,

No. 2:15-CV-3061, 2017 WL 432839, at *5 (S.D. Ohio Feb. 1, 2017) (“The Court finds that Plaintiffs have sufficiently established that Secretary Husted's website violates Title II of the ADA because it is not formatted in a way that is accessible to all individuals, especially blind individuals like the Individual Plaintiffs whose screen access software cannot be used on the website.”).

See, e.g.,

Settlement Agreement Between the United States of America and the Champaign-Urbana Mass Transit District (Dec. 14, 2021),

https://www.ada.gov/champaign-urbana_sa.pdf

[

https://perma.cc/VZU2-E6FZ

]; Consent Decree,

United States

The Regents of the Univ. of Cal.

(Nov. 20, 2022),

https://www.justice.gov/opa/press-release/file/1553291/download

[

https://perma.cc/9AMQ-GPP3

]; Consent Decree,

Dudley

Miami Univ.

(Oct. 13, 2016),

https://www.ada.gov/miami_university_cd.html

[

https://perma.cc/T3FX-G7RZ

]; Settlement Agreement Between the United States of America and the City and County of Denver, Colorado Under the Americans with Disabilities Act (Jan. 8, 2018),

https://www.ada.gov/denver_pca/denver_sa.html

[

https://perma.cc/U7VE-MBSG

]; Settlement Agreement Between the United States of America and Nueces County, Texas Under the Americans with Disabilities Act (effective Jan. 30, 2015),

https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html

[

https://perma.cc/TX66-WQY7

https://www.ada.gov/louisiana-tech.htm

[

https://perma.cc/78ES-4FQR

Moreover, other Federal agencies have also taken enforcement action against public entities regarding the lack of access for people with disabilities to websites. In December 2017, for example, the U.S. Department of Education entered into a resolution agreement with the Alaska Department of Education and Early Development after it found the entity had violated Federal statutes, including title II of the ADA, by denying people with disabilities an equal opportunity to participate in Alaska Department of Education and Early Development's services, programs, and activities, due to website inaccessibility.

Similarly, the U.S. Department of Housing and Urban Development took action against the City of Los Angeles, and its subrecipient housing providers, to ensure that it maintained an accessible housing website concerning housing opportunities.

In re Alaska Dep't of Educ. and Early Dev.,

OCR Reference No. 10161093 (U.S. Dep't of Educ. Dec. 11, 2017) (resolution agreement),

https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b.pdf

[

https://perma.cc/DUS4-HVZJ

], superseded by

https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b1.pdf

[

https://perma.cc/BVL6-Y59M

] (U.S. Dep't of Educ. Mar. 28, 2018) (revised resolution agreement).

See

Voluntary Compliance Agreement Between the U.S. Department of Housing and Urban Development and the City of Los Angeles, California (Aug. 2, 2019),

https://www.hud.gov/sites/dfiles/Main/documents/HUD-City-of-Los-Angeles-VCA.pdf

[

https://perma.cc/X5RN-AJ5K

The Department believes that adopting technical standards for web and mobile app accessibility will provide clarity to public entities regarding how to make the services, programs, and activities they offer the public via the web and mobile apps accessible. Adopting specific technical standards for web and mobile app accessibility will also provide individuals with disabilities with consistent and predictable access to the web content and mobile apps of public entities.

IV. Section-by-Section Analysis

This section details the Department's proposed changes to the title II regulation, including the reasoning behind the proposals, and poses questions for public comment.

Subpart A—General

§ 35.104 Definitions

“Archived Web Content”

The Department proposes to add a definition for “archived web content” to proposed § 35.104. The proposed definition defines “archived web content” as “web content that (1) is maintained exclusively for reference, research, or recordkeeping; (2) is not altered or updated after the date of archiving; and (3) is organized and stored in a dedicated area or areas clearly identified as being archived.” The definition is meant to capture web content that, while outdated or superfluous, is maintained unaltered in a dedicated area on a public entity's website for historical, reference, or other similar purposes, and the term is used in the proposed exceptions set forth in § 35.201. Throughout this rule, a public entity's “website” is intended to include not only the websites hosted by the public entity, but also websites operated on behalf of a public entity by a third party. For example, public entities sometimes use vendors to create and host their web content. Such content would also be covered by this rule.

“Conventional Electronic Documents”

The Department proposes to add a definition for “conventional electronic documents” to proposed § 35.104. The proposal defines “conventional electronic documents” as “web content or content in mobile apps that is in the following electronic file formats: portable document formats (`PDFs'), word processor file formats, presentation file formats, spreadsheet file formats, and database file formats.” The definition thus provides an exhaustive list of electronic file formats that constitute conventional electronic documents. Examples of conventional electronic documents include: Adobe PDF files (

i.e.,

portable document formats), Microsoft Word files (

i.e.,

word processor files), Apple Keynote or Microsoft PowerPoint files (

i.e.,

presentation files), Microsoft Excel files (

i.e.,

spreadsheet files), and FileMaker Pro or Microsoft Access files (

i.e.,

database files).

The term “conventional electronic documents” is intended to describe those documents created or saved as an electronic file that are commonly available on public entities' websites

and mobile apps in either an electronic form or as printed output. The term is intended to capture documents where the version posted by the public entity is not open for editing by the public. For example, if a public entity maintains a Word version of a flyer on its website, that would be a conventional electronic document. A third party could technically download and edit that Word document, but their edits would not impact the “official” posted version. Similarly, a Google Docs file that does not allow others to edit or add comments in the posted document would be a conventional electronic document. The term “conventional electronic documents” is used in proposed § 35.201(b) to provide an exception for certain electronic documents created by or for a public entity that are available on a public entity's website before the compliance date of this rule and in proposed § 35.201(g) to provide an exception for certain individualized, password-protected documents, and is addressed in more detail in the discussion regarding proposed §§ 35.201(b) and (g).

“Mobile Applications (Apps)”

Mobile apps are software applications that are downloaded and designed to run on mobile devices such as smartphones and tablets. For the purposes of this part, mobile apps include, for example, native apps built for a particular platform (

e.g.,

Apple iOS, Google Android, among others) or device and hybrid apps using web components inside native apps.

“Special District Government”

The Department proposes to add a definition for a “special district government.” The term “special district government” is used in proposed § 35.200(b) and is defined in proposed § 35.104 to mean “a public entity—other than a county, municipality, or township, or independent school district—authorized by State law to provide one function or a limited number of designated functions with sufficient administrative and fiscal autonomy to qualify as a separate government and whose population is not calculated by the United States Census Bureau in the most recent decennial Census or Small Area Income and Poverty Estimates.” Because special district governments do not have populations calculated by the United States Census Bureau, their population sizes are unknown. A special district government may include, for example, a mosquito abatement district, utility district, transit authority, water and sewer board, zoning district, or other similar governmental entities that may operate with administrative and fiscal independence.

“Total Population”

The Department proposes to add a definition for “total population.” The term “total population” means “the population estimate for a public entity as calculated by the United States Census Bureau in the most recent decennial Census or, if a public entity is an independent school district, the population estimate as calculated by the United States Census Bureau in the most recent Small Area Income and Poverty Estimates.”

As mentioned previously, proposed § 35.200 generally proposes different compliance dates according to a public entity's size. The term “total population” is generally used in proposed § 35.200 to refer to the size of a public entity's population as calculated by the U.S. Census Bureau in the most recent decennial Census. If a public entity does not have a specific population calculated by the U.S. Census Bureau, but belongs to another jurisdiction that does, the population of the entity is determined by the population of the jurisdiction to which the entity belongs. For example, the total population of a county library is the population of the county to which the library belongs. However, because the decennial Census does not include population estimates for public entities that are independent school districts, the term “total population” with regard to independent school districts refers to population estimates in the most recent Small Area Income and Poverty Estimates, which includes population estimates for these entities.

“WCAG 2.1”

The Department proposes to add a definition of “WCAG 2.1.” The term “WCAG 2.1” refers to the 2018 version of the voluntary guidelines for web accessibility, known as the Web Content Accessibility Guidelines 2.1 (“WCAG”). The W3C®, the principal international organization involved in developing standards for the web, published WCAG 2.1 in June 2018, and it is available at

https://www.w3.org/TR/WCAG21/.

WCAG 2.1 is discussed in more detail in proposed § 35.200 below.

“Web Content”

The Department proposes to add a definition for “web content” under proposed § 35.104 that is based on the WCAG 2.1 definition but is slightly less technical and intended to be more easily understood by the public generally. The Department's proposal defines “web content” as “information or sensory experience—including the encoding that defines the content's structure, presentation, and interactions—that is communicated to the user by a web browser or other software. Examples of web content include text, images, sounds, videos, controls, animations, and conventional electronic documents.” WCAG 2.1 defines web content as “information and sensory experience to be communicated to the user by means of a user agent, including code or markup that defines the content's structure, presentation, and interactions.”

See

W3C®,

Web Content Accessibility Guidelines 2.1

(June 5, 2018),

https://www.w3.org/TR/WCAG21/#glossary

[

https://perma.cc/YB57-ZB8C

The definition of “web content” attempts to describe the different types of information and experiences available on the web. The Department's NPRM proposes to cover the accessibility of public entities' web content available on public entities' websites and web pages regardless of whether the web content is viewed on desktop computers, laptops, smartphones, or other devices.

The definition of “web content” also includes the encoding used to create the structure, presentation, or interactions of the information or experiences on web pages that range in complexity from, for example, pages with only textual information to pages where users can complete transactions. Examples of languages used to create web pages include Hypertext Markup Language (“HTML”), Cascading Style Sheets (“CSS”), Python, SQL, PHP, and JavaScript.

The Department poses questions for feedback about its proposed approach. Comments on all aspects of this proposed rule, including these proposed definitions, are invited. Please provide as much detail as possible and any applicable data, suggested alternative approaches or requirements, arguments, explanations, and examples in your responses to the following questions.

Question 1: The Department's definition of “conventional electronic documents” consists of an exhaustive list of specific file types. Should the Department instead craft a more flexible definition that generally describes the types of documents that are covered or otherwise change the proposed definition, such as by including other file types (e.g., images or movies), or removing some of the listed file types?

Question 2: Are there refinements to the definition of “web content” the Department should consider? Consider,

for example, WCAG 2.1's definition of “web content” as “information and sensory experience to be communicated to the user by means of a user agent, including code or markup that defines the content's structure, presentation, and interactions.”

Subpart H—Web and Mobile Accessibility

The Department is proposing to create a new subpart to its title II regulation. Subpart H would address the accessibility of public entities' web content and mobile apps.

§ 35.200 Requirements for Web and Mobile Accessibility

General

Proposed § 35.200 sets forth specific requirements for the accessibility of web content and mobile apps of public entities. Proposed § 35.200(a) requires a public entity to “ensure the following are readily accessible to and usable by individuals with disabilities: (1) web content that a public entity makes available to members of the public or uses to offer services, programs, or activities to members of the public; and (2) mobile apps that a public entity makes available to members of the public or uses to offer services, programs, or activities to members of the public.” As detailed below, the remainder of proposed § 35.200 sets forth the specific standards that public entities would be required to meet to make their web content and mobile apps accessible and the proposed timelines for compliance.

Background on Accessibility Standards for Websites and Web Content

Since 1994, the W3C® has been the principal international organization involved in developing protocols and guidelines for the web.

The W3C® develops a variety of voluntary technical standards and guidelines, including ones relating to privacy, internationalization of technology, and, relevant to this rulemaking, accessibility. The W3C®'s WAI has developed voluntary guidelines for web accessibility, known as WCAG, to help web developers create web content that is accessible to individuals with disabilities.

W3C®,

About Us, https://www.w3.org/about/

[

https://perma.cc/TQ2W-T377

The first version of WCAG, WCAG 1.0, was published in 1999. WCAG 2.0 was published in December 2008, and is available at

http://www.w3.org/TR/2008/REC-WCAG20-20081211/

[

https://perma.cc/L2NH-VLCR

]. WCAG 2.0 was approved as an international standard by the International Organization for Standardization (“ISO”) and the International Electrotechnical Commission (“IEC”) in October 2012.

WCAG 2.1, the most recent and updated recommendation of WCAG, was published in June 2018, and is available at

https://www.w3.org/TR/WCAG21/

[

https://perma.cc/UB8A-GG2F

W3C®,

Web Accessibility Guidelines 2.0 Approved as ISO/IEC International Standard

(Oct. 15, 2012),

https://www.w3.org/press-releases/2012/wcag2pas/

[

https://perma.cc/JQ39-HGKQ

See

W3C®,

Web Content Accessibility Guidelines 2.1

(June 5, 2018),

https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance

[

https://perma.cc/5PDG-ZTJE

]. Additionally, in May 2021, WAI published a working draft for WCAG 2.2, which has yet to be finalized. W3C®, Web Content Accessibility Guidelines 2.2 (May 21, 2021),

https://www.w3.org/TR/WCAG22/

[

https://perma.cc/M4G8-Z2GY

]. The WAI also published a working draft of WCAG 3.0 in December 2021. W3C®, Web Content Accessibility Guidelines 3.0 (Dec. 7, 2021),

https://www.w3.org/TR/wcag-3.0/

[

https://perma.cc/7FPQ-EEJ7

WCAG 2.1 contains four principles that provide the foundation for web accessibility: perceivable, operable, understandable, and robust.

Testable success criteria (

i.e.,

requirements for web accessibility that are measurable) are provided “to be used where requirements and conformance testing are necessary such as in design specification, purchasing,

regulation

and contractual agreements.”

Thus, WCAG 2.1 contemplates establishing testable success criteria that could be used in regulatory efforts such as this one.

Id.

See

W3C®,

Web Content Accessibility Guidelines 2.1, WCAG 2 Layers of Guidance

(June 5, 2018),

https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance

[

https://perma.cc/5PDG-ZTJE

] (emphasis added).

Proposed WCAG Version

The Department is proposing to adopt WCAG 2.1 as the technical standard for web and mobile app accessibility under title II. WCAG 2.1 was published in June 2018 and is available at

https://www.w3.org/TR/WCAG21/

[

https://perma.cc/UB8A-GG2F

]. WCAG 2.1 represents the most recent and updated published recommendation of WCAG. WCAG 2.1 incorporates and builds upon WCAG 2.0—meaning that WCAG 2.1 includes all of the WCAG 2.0 success criteria, in addition to success criteria that were developed under WCAG 2.1.

Specifically, WCAG 2.1 added 12 Level A and AA success criteria to the 38 success criteria contained in WCAG 2.0 Level AA.

The additional criteria provide important accessibility benefits, especially for people with low vision, manual dexterity disabilities, and cognitive and learning disabilities.

The additional criteria are intended to improve accessibility for mobile web content and mobile apps.

The Department anticipates that WCAG 2.1 is familiar to web developers as it comprises WCAG 2.0's requirements—which have been in existence since 2008—and 12 new Level A and AA requirements that have been in existence since 2018.

W3C®,

What's New in WCAG 2.1

(Aug. 13, 2020),

https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/

[

https://perma.cc/W8HK-Z5QK

Id.

See id.

The Department expects that adopting WCAG 2.1 as the technical standard will have benefits that are important to ensuring access for people with disabilities to public entities' services, programs, and activities. For example, WCAG 2.1 requires that text be formatted so that it is easier to read when magnified.

This is important, for example, for people with low vision who use magnifying tools. Without the formatting that WCAG 2.1 requires, a person magnifying the text might find reading the text disorienting because they could have to scroll horizontally on every line.

See

W3C®,

Web Content Accessibility Guidelines 2.1, Reflow

(June 5, 2018),

https://www.w3.org/TR/WCAG21/#reflow

[

https://perma.cc/YRP5-M599

See id.

WCAG 2.1 also has new success criteria addressing the accessibility of mobile apps or web content viewed on a mobile device. For example, WCAG 2.1 Success Criterion 1.3.4 requires that page orientation (

i.e.,

portrait or landscape) not be restricted to just one orientation, unless a specific display orientation is essential.

This feature is important, for example, for someone who uses a wheelchair with a tablet attached to it such that the tablet cannot be rotated.

If content only works in one orientation (

i.e.,

portrait or landscape) it will not always work for this individual depending on how the tablet is oriented, and could render that content or app unusable for the person.

Another WCAG 2.1 success criterion requires, in part, that if a device can be operated by motion—for example, shaking the device to undo typing—that there be an option to turn

off that motion sensitivity.

This could be important, for example, for someone who has tremors so that they do not accidentally undo their typing.

See

W3C®,

Web Content Accessibility Guidelines 2.1, Orientation

(June 5, 2018),

https://www.w3.org/TR/WCAG21/#orientation

[

https://perma.cc/FC3E-FRYK

W3C®,

What's New in WCAG 2.1

(Aug. 13, 2020),

https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/

[

https://perma.cc/W8HK-Z5QK

]

See id.

See

W3C®,

Web Content Accessibility Guidelines 2.1, Motion Actuation

(June 5, 2018),

https://www.w3.org/TR/WCAG21/#motion-actuation

[

https://perma.cc/6S93-VX58

See

W3C®,

What's New in WCAG 2.1

(Aug. 13, 2020),

https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/

[

https://perma.cc/W8HK-Z5QK

Such accessibility features are critical for people with disabilities to have equal access to their State or local government's services, programs, and activities. This is particularly true given that using mobile devices to access government services is commonplace. For example, in August 2022, about 54 percent of visits to Federal Government websites over the previous 90 days were from mobile devices.

In addition, WCAG 2.1's incorporation of mobile-related criteria is important because of public entities' increasing use of mobile apps in offering their services, programs, and activities via mobile apps. As discussed in more detail later, public entities are using mobile apps to offer a range of critical government services—from traffic information, to scheduling trash pickup, to vaccination appointments.

U.S. Gen. Servs. Admin. Digital Analytics Program,

https://analytics.usa.gov/

[

https://perma.cc/2YZP-KCMG

Because WCAG 2.1 is the most recent recommended version of WCAG and generally familiar to web professionals, the Department expects it is well-positioned to continue to be relevant even as technology inevitably evolves. In fact, the W3C® advises using WCAG 2.1 over WCAG 2.0 when possible because WCAG 2.1 incorporates more forward-looking accessibility needs.

The WCAG standards were designed to be “technology neutral.”

This means that they are designed to be broadly applicable to current and future web technologies.

Thus, WCAG 2.1 also allows web and mobile app developers flexibility and potential for innovation.

W3C®,

WCAG 2.0 Overview

(updated Aug. 6, 2022),

https://www.w3.org/WAI/standards-guidelines/wcag/

[

https://perma.cc/L7NX-8XW3

W3C®,

Introduction to Understanding WCAG

(June 20, 2023),

https://www.w3.org/WAI/WCAG21/Understanding/intro

[

https://perma.cc/XB3Y-QKVU

See

W3C®,

Understanding Techniques for WCAG Success Criteria

(June 20, 2023),

https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques

[

https://perma.cc/AMT4-XAAL

The Department also expects that public entities are likely already familiar with WCAG 2.1 or will be able to become familiar quickly. This is because WCAG 2.1 has been available since 2018, and it builds upon WCAG 2.0, which has been in existence since 2008 and has been established for years as a benchmark for accessibility. In other words, the Department expects that web developers and professionals who work for or with public entities are likely to be familiar with WCAG 2.1. If they are not already familiar with WCAG 2.1, the Department expects that they are at least likely to be familiar with WCAG 2.0 and will be able to become acquainted quickly with WCAG 2.1's 12 additional Level A and AA success criteria. The Department also believes that resources exist to help public entities implement or understand how to implement not only WCAG 2.0 Level AA, but also WCAG 2.1 Level AA. Additionally, public entities will have two or three years to come into compliance with a final rule, which should also provide sufficient time to get acquainted with and implement WCAG 2.1.

According to the Department's research, WCAG 2.1 is also being increasingly used by members of the public and governmental entities. In fact, the Department recently included WCAG 2.1 in several settlement agreements with covered entities addressing inaccessible websites.

See, e.g.,

Settlement Agreement with CVS Pharmacy, Inc. (Apr. 11, 2022),

https://archive.ada.gov/cvs_sa.pdf

[

https://perma.cc/H5KZ-4VVF

]; Settlement Agreement with Meijer, Inc. (Feb. 2, 2022),

https://archive.ada.gov/meijer_sa.pdf

[

https://perma.cc/5FGD-FK42

]; Settlement Agreement with The Kroger Co. (Jan. 28, 2022),

https://archive.ada.gov/kroger_co_sa.pdf

[

https://perma.cc/6ASX-U7FQ

]; Settlement Agreement with Champaign-Urbana Mass Transit Dist. (Dec. 14, 2021),

https://www.justice.gov/d9/case-documents/attachments/2021/12/14/champaign-urbana_sa.pdf

[

https://perma.cc/66XY-QGA8

]; Settlement Agreement with Hy-Vee, Inc. (Dec. 1, 2021)

https://archive.ada.gov/hy-vee_sa.pdf

[

https://perma.cc/GFY6-BJNE

]; Settlement Agreement with Rite Aid Corp. (Nov. 1, 2021),

https://archive.ada.gov/rite_aid_sa.pdf

[

https://perma.cc/4HBF-RBK2

In evaluating what technical standard to propose, the Department also considered WCAG 2.0. In addition, the Department considered the standards set forth under section 508 of the Rehabilitation Act of 1973, which governs the accessibility of the Federal Government's web content and is harmonized with WCAG 2.0.

In 2017, when the United States Access Board adopted WCAG 2.0 as the technical standard for the Federal Government's web content under section 508, WCAG 2.1 had not been finalized.

The Department ultimately decided to propose WCAG 2.1 as the appropriate standard. A number of countries that have adopted WCAG 2.0 as their standard are now making efforts to move or have moved to WCAG 2.1.

In countries that are part of the European Union, public sector websites and mobile apps generally must meet a technical standard that requires conformance with the WCAG 2.1 Level AA success criteria.

And although WCAG 2.0 is the standard adopted by the Department of Transportation in its rule implementing the Air Carrier Access Act, which covers airlines' websites and kiosks,

that rule—like the section 508 rule—was promulgated before WCAG 2.1 was published.

36 CFR 1194, app. A.

See

Information and Communication Technology (“ICT”) Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017); W3C®,

Web Content Accessibility Guidelines 2.1

(June 5, 2018),

https://www.w3.org/TR/WCAG21/

[

https://perma.cc/UB8A-GG2F

See e.g., Exploring WCAG 2.1 for Australian government services,

Australian Government Digital Transformation Agency (Aug. 22, 2018),

https://www.dta.gov.au/blogs/exploring-wcag-21-australian-government-services.

A Perma archive link was unavailable for this citation.

Web Accessibility,

European Comm'n (updated July 13, 2022),

https://digital-strategy.ec.europa.eu/en/policies/web-accessibility

[

https://perma.cc/LSG9-XW7L

];

Accessibility Requirements for ICT Products and Services,

European Telecomm. Standards Institute, 45-51, 64-78 (Mar. 2021),

https://www.etsi.org/deliver/etsi_en/301500_301599/301549/03.02.01_60/en_301549v030201p.pdf

[

https://perma.cc/5TEZ-9GC6

See

14 CFR 382.43(c)-(e), 382.57.

The Department expects that the wide usage of WCAG 2.0 lays a solid foundation for public entities to become familiar with and implement WCAG 2.1's additional Level A and AA criteria. According to the Department's research, approximately 48 States either use or strive to use a WCAG 2.0 standard or greater for at least some of their web content. It appears that at least four of these States—Louisiana, Maryland, Nebraska, and Washington—already either use WCAG 2.1 or strive to use WCAG 2.1 for at least some of their web content.

WCAG 2.1 represents the most up-to-date recommendation and is generally familiar to web professionals. It offers important accessibility benefits for people with disabilities that affect manual dexterity, adds some criteria to reduce barriers for those with low vision and cognitive disabilities, and expands coverage of mobile content. Given that public entities will have two or three years to comply, the Department views WCAG 2.1 as the appropriate technical standard to propose at this time.

The Department is aware that a working draft for WCAG 2.2 was published in May 2021.

Several subsequent drafts have also been

published.

All of the WCAG 2.0 and WCAG 2.1 success criteria except for one are included in WCAG 2.2.

But WCAG 2.2 also includes six additional Level A and AA success criteria beyond those included in WCAG 2.1.

Like WCAG 2.1, WCAG 2.2 offers benefits for individuals with low vision, limited manual dexterity, and cognitive disabilities. For example, Success Criterion 3.3.8, which is a new criterion under WCAG 2.2, improves access for people with cognitive disabilities by limiting the use of cognitive function tests, like solving puzzles, in authentication processes.

Because WCAG 2.2 has not yet been finalized and is subject to change, and web professionals have had less time to become familiar with the additional success criteria that have been incorporated into WCAG 2.2, the Department does not believe it is appropriate to adopt WCAG 2.2 as the technical standard at this time.

W3C®,

Web Content Accessibility Guidelines 2.2

(May 21, 2021),

https://www.w3.org/TR/2021/WD-WCAG22-20210521/

[

https://perma.cc/M4G8-Z2GY

See, e.g.,

W3C®,

Web Content Accessibility Guidelines 2.2

(May 17, 2023),

https://www.w3.org/TR/WCAG22/

[

https://perma.cc/SXA7-RF32

W3C®,

What's New in WCAG 2.2 Draft

(May 17, 2023),

https://www.w3.org/WAI/standards-guidelines/wcag/new-in-22/

[

https://perma.cc/Y67R-SFSE

Id.

The Department is seeking feedback from the public about its proposal to use WCAG 2.1 as the standard under this rule and its assumptions underlying this decision. Please provide as much detail as possible and any applicable data, suggested alternative approaches or requirements, arguments, explanations, and examples in your responses to the following questions.

Question 3: Are there technical standards or performance standards other than WCAG 2.1 that the Department should consider? For example, if WCAG 2.2 is finalized before the Department issues a final rule, should the Department consider adopting that standard? If so, what is a reasonable time frame for State and local compliance with WCAG 2.2 and why? Is there any other standard that the Department should consider, especially in light of the rapid pace at which technology changes?

Proposed WCAG Conformance Level

For a web page to conform to WCAG 2.1, the web page must satisfy the success criteria under one of three levels of conformance: A, AA, or AAA. The three levels of conformance indicate a measure of accessibility and feasibility. Level A, which is the minimum level of accessibility, contains criteria that provide basic web accessibility and are the least difficult to achieve for web developers.

Level AA, which is the intermediate level of accessibility, includes all of the Level A criteria and contains enhanced criteria that provide more comprehensive web accessibility, and yet are still achievable for most web developers.

Level AAA, which is the highest level of conformance, includes all of the Level A and Level AA criteria and contains additional criteria that can provide a more enriched user experience, but are the most difficult to achieve for web developers.

The W3C® does not recommend that Level AAA conformance be required as a general policy for entire websites because it is not possible to satisfy all Level AAA criteria for some content.

100

W3C®,

Web Content Accessibility Guidelines (WCAG) 2 Level A Conformance

(July 13, 2020),

https://www.w3.org/WAI/WCAG2A-Conformance

[

https://perma.cc/KT74-JNHG

Id.

100

See

W3C®,

Understanding Conformance, Understanding Requirement 1, https://www.w3.org/WAI/WCAG21/Understanding/conformance

[

https://perma.cc/9ZG9-G5N8

Based on review of previous public feedback and independent research, the Department believes that WCAG 2.1 Level AA is an appropriate conformance level because it includes criteria that provide web accessibility to individuals with disabilities—including those with visual, auditory, physical, speech, cognitive, and neurological disabilities—and yet is feasible for public entities' web developers to implement. In addition, Level AA conformance is widely used, making it more likely that web developers are already familiar with its requirements. Though many of the entities that conform to Level AA do so under WCAG 2.0, not 2.1, this still suggests a widespread familiarity with most of the Level AA success criteria, given that 38 of the 50 Level A and AA success criteria in WCAG 2.1 are also included in WCAG 2.0. The Department believes that Level A conformance alone is not appropriate because it does not include criteria for providing web accessibility that the Department understands are critical, such as a minimum level of color contrast so that items like text boxes or icons are easier to see, which is important for people with vision disabilities. Also, while Level AAA conformance provides a richer user experience, it is the most difficult to achieve for many entities. Therefore, the Department is proposing Level AA conformance for public feedback as to whether it strikes the right balance between accessibility for individuals with disabilities and achievability for public entities. Adopting a WCAG 2.1 Level AA conformance level would make the ADA requirements consistent with a standard that has been widely accepted internationally. Many nations have selected Level AA conformance as their standard for web accessibility.

101

The web content of Federal agencies that are governed by section 508 also need to comply with Level AA.

102

In its proposed regulatory text in § 35.200(b)(1) and (2), the Department provides that public entities must “comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1.” WCAG 2.1 provides that for “Level AA conformance, the web page [must] satisf[y] all the Level A and Level AA Success Criteria . . . .”

103

However, individual success criteria in WCAG 2.1 are labeled only as Level A or Level AA. Therefore, a person reviewing individual requirements in WCAG 2.1 may not understand that both Level A and Level AA success criteria must be met in order to attain Level AA. Accordingly, the Department has made explicit in its proposed regulation that both Level A and Level AA success criteria and conformance requirements must be met in order to comply with the proposed web accessibility requirements.

101

See

W3C®,

Web Accessibility Laws & Policies

(Mar. 21, 2018),

https://www.w3.org/WAI/policies/

[

https://perma.cc/5EBY-3WX4

102

See

Information and Communication Technology (“ICT”) Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017).

103

See

W3C®,

Conformance Requirements, Web Content Accessibility Guidelines (WCAG) 2.1

(June 5, 2018),

https://www.w3.org/TR/WCAG21/#cc1

[

https://perma.cc/ZL6N-VQX4

]. WCAG 2.1 also states that a Level AA conforming alternate version may be provided. The Department has adopted a slightly different approach to conforming alternate versions, which is discussed below.

Conformance Level for Small Public Entities

The Department considered proposing another population threshold of very small entities that would be subject to a lower conformance level or WCAG version, to reduce the burden of compliance on those entities. However, the Department decided against this proposal due to a variety of factors. First, this would make for inconsistent levels of WCAG conformance across public entities, and a universal standard for consistency in implementation would promote predictability. A universal level of conformance would reduce confusion about which standard applies, and it would create a basic level of conformance for all public entities to follow. It would also allow for people with disabilities to know what they can

expect when navigating a public entity's web content; for example, it will be helpful for people with disabilities to know that they can expect to be able to navigate a public entity's web content independently using their assistive technology. Finally, for the reasons discussed above, the Department believes that WCAG 2.1 Level AA contains criteria that are critical to accessing services, programs, and activities of public entities, which may not be included under a lower standard. However, the Department recognizes that small public entities—those with a total population of less than 50,000 based on Census data—might initially face more technical and resource challenges in complying than larger public entities. Therefore, as discussed below, the Department has decided to propose different compliance dates according to a public entity's size to reduce burdens on small public entities.

Possible Alternative Standards for Compliance

The Department considered proposing to adopt the section 508 standards but decided not to take this approach. The section 508 standards are harmonized with WCAG 2.0, and for the reasons discussed above, the Department believes WCAG 2.1—which had not been finalized at the time the section 508 standards were promulgated—is the more appropriate recommendation for this proposed rule. Moreover, by adopting WCAG on its own rather than adopting it through the section 508 standards, the Department can then tailor the rule to public entities as it does in this proposed rule.

The Department also considered adopting performance standards instead of specific technical standards for accessibility of web content. Performance standards establish general expectations or goals for web accessibility and allow for compliance via a variety of unspecified methods. Performance standards could provide greater flexibility in ensuring accessibility as web technologies change. However, based on what the Department has heard previously from the public and its own knowledge of this area, the Department understands that performance standards might be too vague and subjective and could prove insufficient in providing consistent and testable requirements for web accessibility. Additionally, the Department expects that performance standards would likely not result in predictability for either public entities or people with disabilities in the way that a more specific technical standard would. Further, similar to a performance standard, WCAG has been designed to allow for flexibility and innovation in the evolving web environment. The Department recognizes the importance of adopting a standard for web accessibility that provides not only specific and testable requirements, but also sufficient flexibility to develop accessibility solutions for new web technologies. The Department believes that WCAG achieves this balance because it provides flexibility similar to a performance standard, but it also provides more clarity, consistency, predictability, and objectivity. Using WCAG also enables public entities to know precisely what is expected of them under title II, which may be of particular benefit to jurisdictions with less technological experience. This will assist public entities in targeting accessibility errors, which may reduce costs they would incur without clear expectations.

Please provide as much detail as possible and any applicable data, suggested alternative approaches or requirements, arguments, explanations, and examples in your responses to the following questions.

Question 4: What compliance costs and challenges might small public entities face in conforming with this rule? How accessible are small public entities' web content and mobile apps currently? Do small public entities have internal staff to modify their web content and mobile apps, or do they use outside consulting staff to modify and maintain their web content and mobile apps? If small public entities have recently (for example, in the past three years) modified their web content or mobile apps to make them accessible, what costs were associated with those changes?

Question 5: Should the Department adopt a different WCAG version or conformance level for small entities or a subset of small entities?

Public Entities' Use of Social Media Platforms

Public entities are increasingly using social media platforms to provide information and communicate with the public about their services, programs, and activities in lieu of or in addition to engaging the public on their own websites. The Department is using the term “social media platforms” to refer to websites or mobile apps of third parties whose primary purpose is to enable users to create and share content in order to participate in social networking (

i.e.,

the creation and maintenance of personal and business relationships online through websites and mobile apps like Facebook, Instagram, Twitter, and LinkedIn).

The Department is proposing to require that web content that public entities make available to members of the public or use to offer services, programs, and activities to members of the public be accessible within the meaning of proposed § 35.200. This requirement would apply regardless of whether that web content is located on the public entity's own website or elsewhere on the web. It therefore covers web content that a public entity makes available via a social media platform. Even where a social media platform is not fully accessible, a public entity can generally take actions to ensure that the web content that it posts is accessible and in compliance with WCAG 2.1.

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The Department understands that social media platforms often make available certain accessibility features like the ability to add captions or alt text. It is the public entity's responsibility to use these features when it makes web content available on social media sites. For example, if a public entity posts an image to a social media site that allows users to post alt text, the public entity needs to ensure that appropriate alt text accompanies that image so that screen reader users can access the information.

104

See Federal Social Media Accessibility Toolkit Hackpad, Digital.gov

(updated June 21, 2022),

https://digital.gov/resources/federal-social-media-accessibility-toolkit-hackpad/

[

https://perma.cc/DJ8X-UCHA

At this time, the Department is not proposing any regulatory text specific to the web content that public entities make available to members of the public via social media platforms because web content posted on social media platforms will be treated the same as any other content public entities post on the web. However, the Department is considering creating an exception from coverage under the rule for social media posts if they were posted before the effective date of the rule. This exception would recognize that making preexisting social media content accessible may be impossible at this time or result in a significant burden. Many public entities have posted social media content for several years, often numbering thousands of posts, which may not all be accessible. The benefits of making all preexisting social media posts accessible might also be limited as these posts are intended to provide current updates on platforms that are frequently refreshed with new information. The Department is considering this exception in recognition of the fact that many entities' resources may be better spent

ensuring that current web content is accessible, rather than reviewing all preexisting social media content for compliance or possibly deleting their previous posts. The Department is looking for input on whether this approach would make sense and whether any limitations to this approach are necessary, such as providing that the exception does not apply when preexisting social media content is currently used to offer a service, program, or activity, or possibly limiting this exception when the public requests certain social media content to be made accessible.

The Department is also weighing whether public entities' preexisting videos posted to social media platforms such as YouTube should be excepted from coverage due to these same concerns or otherwise be treated differently.

Question 6: How do public entities use social media platforms and how do members of the public use content made available by public entities on social media platforms? What kinds of barriers do people with disabilities encounter when attempting to access public entities' services via social media platforms?

Mobile Applications

The Department is proposing to adopt the same technical standard for mobile app accessibility as it is for web content—WCAG 2.1 Level AA. As discussed earlier, WCAG 2.1 was published in June 2018 and was developed, in part, to address mobile accessibility.

105

W3C®,

What's New in WCAG 2.1

(Aug. 13, 2020),

https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/

[

https://perma.cc/W8HK-Z5QK

The Department considered applying WCAG 2.0 Level AA to mobile apps, which is a similar approach to the requirements in the final rule promulgated by the United States Access Board in its update to the section 508 standards.

106

WCAG 2.1 was not finalized when the Access Board adopted the section 508 standards. When WCAG 2.0 was originally drafted in 2008, mobile apps were not as widely used or developed. Further, the technology has grown considerably since that time. Accordingly, WCAG 2.1 provides 12 additional Level A and AA success criteria not included in WCAG 2.0 to ensure, among other things, that mobile apps are more accessible to individuals with disabilities using mobile devices.

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For example, WCAG 2.1 includes Success Criterion 1.4.12, which ensures that text spacing like letter spacing, line spacing, and word spacing meets certain requirements to ensure accessibility; Success Criterion 2.5.4, which enables the user to disable motion actuation (

e.g.,

the ability to activate a device's function by shaking it) to prevent such things as accidental deletion of text; and Success Criterion 1.3.5, which allows a user to input information such as a name or address automatically.

108

106

See

82 FR 5790, 5815 (Jan. 18, 2017).

107

W3C®,

What's New in WCAG 2.1

(Aug. 13, 2020),

https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/

[

https://perma.cc/W8HK-Z5QK

108

W3C®,

Web Content Accessibility Guidelines 2.1

(June 5, 2018),

https://www.w3.org/TR/WCAG21/

[

https://perma.cc/UB8A-GG2F

The Access Board's section 508 standards include additional requirements applicable to mobile apps that are not in WCAG 2.1, and the Department is requesting feedback on whether to adopt those requirements as well. For example, the section 508 standards apply the following requirements not found in WCAG 2.1 to mobile apps: interoperability requirements to ensure that a mobile app does not disrupt a device's assistive technology for persons with disabilities (

e.g.,

screen readers for persons who are blind or have low vision); requirements for mobile apps to follow preferences on a user's phone such as settings for color, contrast, and font size; and requirements for caption controls and audio description controls that enable users to adjust caption and audio description functions.

109

36 CFR 1194, app. C (§§ 502.1, 502.2.2, 503.2, 503.4.1, 503.4.2).

Adopting WCAG 2.1 Level AA for mobile apps will help ensure this rule's accessibility standards for mobile apps are consistent with this rule's accessibility standards for web content. We seek comments on this approach below. Please provide as much detail as possible and any applicable data, suggested alternative approaches or requirements, arguments, explanations, and examples in your responses to the following questions.

Question 7: How do public entities use mobile apps to make information and services available to the public? What kinds of barriers do people with disabilities encounter when attempting to access public entities' services, programs, and activities via mobile apps? Are there any accessibility features unique to mobile apps that the Department should be aware of?

Question 8: Is WCAG 2.1 Level AA the appropriate accessibility standard for mobile apps? Should the Department instead adopt another accessibility standard or alternative for mobile apps, such as the requirements from section 508 discussed above?

Requirements by Entity Size

Section 35.200(b) sets forth the proposed specific standard with which the web content and mobile apps that public entities make available to members of the public or use to offer services, programs, and activities to members of the public must comply, and also proposes time frames for compliance. The proposed requirements of § 35.200(b) are generally delineated by the size of the population of the public entity, as calculated by the U.S. Census Bureau.

Section 35.200(b)(1): Larger Public Entities

Section 35.200(b)(1) sets forth the proposed web and mobile app accessibility requirements for public entities with a total population of 50,000 or more. The requirements of proposed § 35.200(b)(1) are meant to apply to larger public entities—specifically, to those public entities that do not qualify as “small governmental jurisdictions” as defined in the Regulatory Flexibility Act.

110

As applied to this proposed rule, the Department defines the population of a public entity by the total general population of the jurisdiction as calculated by the U.S. Census Bureau. If a public entity does not have a specific population calculated by the U.S. Census Bureau, but belongs to another jurisdiction that does, the population of the entity is determined by the population of the jurisdiction to which the entity belongs. For example, a county police department in a county with a population of 5,000 is a small public entity, while a city police department in a city with a population of 200,000 is not a small public entity. For purposes of this rule, a population of a public entity is not defined by the population that is eligible for or that takes advantage of the specific services of the public entity. For example, a county school district in a county with a population of 60,000 adults and children is not a small public entity regardless of the number of students

enrolled or eligible for services. Similarly, individual county schools are also not considered small public entities if they are components of a county government that has a population of over 50,000 (

i.e.,

when the individual county schools are not separate legal entities). Though a specific county school may create and maintain web content or a mobile app, the county, as the legal entity governed by title II, is also responsible for what happens in the individual school. The Department expects that the specific school benefits from the resources made available or allocated by the county.

110

5 U.S.C. 601(5) (“[T]he term `small governmental jurisdiction' means governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand . . . .”).

The Department is also proposing this approach because, practically speaking, it is likely to make it easier for public entities to determine their population size. Under the Department's proposal, population size is used to determine a public entity's compliance time frame. Some public entities, like libraries or public universities and community colleges, do not have population data associated with them in the U.S. Census. By using the population data associated with the entity the library or university belongs to, like a county or State, the library or university can assess its compliance time frame. This also allows the county or State as a whole to assess compliance for its services, programs, and activities holistically.

Proposed § 35.200(b)(1) requires that a public entity, other than a special district government, with a total population of 50,000 or more shall ensure that the web content and mobile apps it makes available to members of the public or uses to offer services, programs, or activities to members of the public comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1. Public entities subject to proposed § 35.200(b)(1) have two years after the publication of a final rule to make their web content and mobile apps accessible, unless they can demonstrate that compliance with proposed § 35.200(b)(1) would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. The limitations on a public entity's obligation to comply with the proposed requirements are discussed in more detail below.

The Department has received varied feedback from the public in the past regarding an appropriate time frame for requiring compliance with technical web accessibility standards. Individuals with disabilities or disability advocacy organizations tended to prefer a shorter time frame, often arguing that web accessibility has long been required by the ADA and that extending the deadline for compliance rewards entities that have not made efforts to make their websites accessible. Some covered entities have asked for more time to comply. State and local government entities have been particularly concerned about shorter compliance deadlines, often citing budgets and staffing as major limitations. In the past, many public entities stated that they lacked qualified personnel to implement the web accessibility requirements of WCAG 2.0, which was relatively new at the time. They told the Department that in addition to needing time to implement the changes to their websites, they also needed time to train staff or contract with professionals who are proficient in developing accessible websites. Considering all these factors, as well as the facts that over a decade has passed since the Department started receiving such feedback and there is more available technology to make web content and mobile apps accessible, the Department is proposing a two-year implementation time frame for public entities with a total population of 50,000 or more. Regulated entities and the community of web developers have had over a decade to familiarize themselves with WCAG 2.0, which was published in 2008 and serves as the foundation for WCAG 2.1, and five years to familiarize themselves with the additional 12 Level A and AA success criteria of WCAG 2.1. Though the Department is now proposing requiring public entities to comply with WCAG 2.1 instead of WCAG 2.0, the Department believes the time allowed to come into compliance is appropriate. As discussed above, WCAG 2.1 Level AA only adds 12 Level A and AA success criteria that were not included in WCAG 2.0. The Department believes these additional success criteria will not significantly increase the time or resources that it will take for a public entity to come into compliance with the proposed rule beyond what would have already been required to comply with WCAG 2.0, though the Department seeks the public's input on this belief. The Department therefore believes this proposal balances the resource challenges reported by public entities with the interests of individuals with disabilities in accessing the multitude of services, programs, and activities that public entities now offer via the web and mobile apps.

Section 35.200(b)(2): Small Public Entities and Special District Governments

The Department has also previously received public input on whether it should consider different compliance requirements or a different compliance date for small entities in order to take into account the impact on small entities as required by the Regulatory Flexibility Act of 1980 and Executive Order 13272.

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Many disability organizations and individuals have opposed having a different timetable or different accessibility requirements for smaller entities, stating that many small entities have smaller and less complex websites with fewer web pages, which would make compliance easier. The Department has also heard from other members of the public opposing different timetables or different accessibility requirements for smaller entities. These commenters note that small public entities are protected from excessive burdens deriving from rigorous compliance dates or stringent accessibility standards by the ADA's “undue burden” compliance limitations. It is also the Department's understanding that many web accessibility professionals may operate online and could be available to assist entities with compliance regardless of their location.

111

See

Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 FR 43460, 43467 (July 26, 2010).

Many of those expressing concerns about compliance dates, especially web developers as well as State and local government entities, have stated that compliance in incremental levels would help public entities to allocate resources—both financial and personnel—to bring their websites into compliance. Such entities have noted that many small State and local government entities do not have a dedicated web developer or staff. The Department has heard that when these small entities develop or maintain their own websites, they often do so with staff or volunteers who have only a cursory knowledge of web design and use manufactured web templates or software, which may create inaccessible web pages. Some small public entities have expressed concern that even when they do use outside help, there is likely to be a shortage of professionals who are proficient in web accessibility and can assist all public entities in bringing their websites into compliance. Some public entities have also expressed concern that smaller entities would need to take

down their websites because they would not be able to comply with the accessibility requirements, although the Department notes that public entities would not be required to undertake changes that would impose an undue financial and administrative burden.

In light of these concerns, proposed § 35.200(b)(2) sets forth the Department's proposed web and mobile app accessibility requirements for small public entities and special district governments. Specifically, proposed § 35.200(b)(2) covers those public entities with a total population of less than 50,000 and special district governments. Section 35.200(b)(2) would require these public entities to ensure that the web content and mobile apps they make available to the public or use to offer services, programs, and activities to members of the public, comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless they can demonstrate that compliance would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. This is the same substantive standard that applies to larger entities. However, the Department is proposing to give these small entities additional time to bring their web content and mobile apps into compliance with proposed § 35.200(b)(2). Specifically, small public entities and special district governments covered by proposed § 35.200(b)(2) will have three years after the publication of a final rule to make their web content and mobile apps compliant with the Department's proposed requirements. The Department believes this longer phase-in period would be prudent to allow small public entities and special district governments to properly allocate their personnel and financial resources in order to bring their web content and mobile apps into compliance with the Department's proposed requirements. However, the Department welcomes feedback on whether there are alternatives to delaying compliance requirements by a year that could better balance the needs of small public entities and the people with disabilities who live in those communities.

Proposed § 35.200(b)(2) also covers public entities that are special district governments. As previously noted, special district governments are governments that are authorized to provide a single function or a limited number of functions, such as a zoning or transit authority. As discussed above, proposed § 35.200 proposes different compliance dates according to the size of the population of the public entity, as calculated by the U.S. Census Bureau. The Department believes applying to special district governments the same compliance date as proposed for small public entities (

i.e.,

compliance in three years) may be appropriate for two reasons. First, because the U.S. Census Bureau does not provide population estimates for special district governments, these limited-purpose public entities would find it difficult to obtain population estimates that are objective and reliable in order to determine their duties under the proposed rule. Though some special district governments may estimate their total populations, these entities may use varying methodology to calculate population estimations, which may lead to confusion and inconsistency in the application of the proposed accessibility requirements. Second, although special district governments in some instances may serve a large population, unlike counties, cities, or townships with large populations that provide a wide range of online government services and programs and have large and varying budgets, special district governments are authorized to provide a single function or a limited number of functions (

e.g.,

to provide mosquito abatement or water and sewer services) and have more limited or specialized budgets. Therefore, proposed § 35.200(b)(2) extends the deadline for compliance for special district governments to three years, as it does for small public entities.

Question 9: How will the proposed compliance date affect small public entities? Are there technical or budget constraints that small public entities would face in complying with this rule, such that a longer phase-in period is appropriate?

Question 10: How will the proposed compliance date affect people with disabilities, particularly in rural areas?

Question 11: How should the Department define “small public entity”? Should categories of small public entities other than those already delineated in this proposed rule be subject to a different WCAG 2.1 conformance level or compliance date?

Question 12: Should the Department consider factors other than population size, such as annual budget, when establishing different or tiered compliance requirements? If so, what should those factors be, why are they more appropriate than population size, and how should they be used to determine regulatory requirements?

Limitations

The proposed rule sets forth the limitations on public entities' obligations to comply with the specific requirements of this proposed rule. For example, where it would impose an undue financial and administrative burden to comply with WCAG 2.1 (or part of WCAG 2.1), public entities would not be required to remove their web content and mobile apps, forfeit their web presence, or otherwise undertake changes that would be unduly burdensome. Further, as proposed in § 35.200(b), the web and mobile app accessibility requirements would not require any public entity to take actions that would result in a fundamental alteration in the nature of a service, program, or activity.

In circumstances where officials of a public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of the public entity or their designee after considering all resources available for use in the funding and operation of the service, program, or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with proposed § 35.200(b) would result in such an alteration or such burdens, a public entity must take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or services provided by the public entity. For more information, see the discussion below regarding limitations on obligations under proposed § 35.204.

Captions for Live-Audio Content

WCAG 2.1 Level AA Success Criterion 1.2.4 requires synchronized captions for live-audio content. The intent of this success criterion is to “enable people who are deaf or hard of hearing to watch

real-time

presentations. Captions provide the part of the content available via the audio track. Captions not only include dialogue, but also identify who is speaking and notate sound effects and

other significant audio.”

112

Modern live captioning often can be created with the assistance of technology, such as by assigning captioners through Zoom or other conferencing software, which integrates captioning with live meetings.

112

W3C®,

Captions (Live), Understanding SC 1.2.4, Understanding WCAG 2.0: A Guide to Understanding and Implementing WCAG 2.0, http://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-real-time-captions.html

[

https://perma.cc/NV74-U77R

] (emphasis in original).

The Department proposes to apply the same compliance date to all of the WCAG 2.1 Level AA success criteria, including live-audio captioning requirements. As noted above, this would allow for three years after publication of the final rule for small public entities and special district governments to comply, and two years for large public entities. The Department believes this approach is appropriate for several reasons. First, the Department understands that technology utilizing live-audio captioning has developed in recent years and continues to develop. In addition, the COVID-19 pandemic moved a significant number of formerly in-person meetings, activities, and other gatherings to online settings, many of which incorporated live-audio captioning. As a result of these developments, live-audio captioning has become even more critical for individuals with certain types of disabilities to participate fully in civic life. And while the Department believes that the two- and three-year periods described above afford a sufficient amount of time for public entities to allocate resources towards live-audio captioning, public entities have the option to demonstrate that compliance with any success criterion would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.

Though at least one country that has adopted WCAG 2.0 Level AA as its standard for web accessibility has exempted entities from having to comply with the live-audio captioning requirements,

113

the Department does not believe this approach is appropriate or necessary under the current circumstances, given the current state of live-audio captioning technology and the critical need for live-audio captioning for people with certain types of disabilities to participate more fully in civic life. Further, the Department believes that the state of live-audio captioning technology has advanced since 2016 when Canada made the decision to exempt entities from the live-audio captioning requirements.

114

However, the Department is interested in learning more about compliance capabilities. Accordingly, the Department poses several questions for commenters about the development of live-audio captioning technology and the Department's proposed requirement.

113

See

W3C®,

Canada

(last updated Feb. 9, 2017),

https://www.w3.org/WAI/policies/canada/

[

https://perma.cc/W2DS-FAE9

114

See id.

Question 13: Should the Department consider a different compliance date for the captioning of live-audio content in synchronized media or exclude some public entities from the requirement? If so, when should compliance with this success criterion be required and why? Should there be a different compliance date for different types or sizes of public entities?

Question 14: What types of live-audio content do public entities and small public entities post? What has been the cost for providing live-audio captioning?

§ 35.201 Exceptions

This rule would require public entities to make their web content and mobile apps accessible. However, the Department believes it may be appropriate in some situations for certain content to be excepted from compliance with the technical requirements of this proposed rule. The Department has heard a range of views on this issue, including that a title II regulation should not include any exceptions because the compliance limitations for undue financial and administrative burdens would protect public entities from any unrealistic requirements. On the other hand, the Department has also heard that exceptions are necessary to avoid substantial burdens on public entities. The Department also expects that such exceptions may help public entities avoid uncertainty about whether they need to ensure accessibility in situations where it might be extremely difficult. After consideration of the public's views and after its independent assessment, the Department is proposing the following exceptions and poses questions for public feedback. The Department is interested in feedback about whether these proposed exceptions would relieve the burden on public entities, and also how these proposed exceptions would impact people with disabilities.

The Department is proposing exceptions from coverage—subject to certain limitations—for the following seven categories of web content: (1) archived web content; (2) preexisting conventional electronic documents; (3) web content posted by third parties on a public entity's website; (4) third-party web content linked from a public entity's website; (5) course content on a public entity's password-protected or otherwise secured website for admitted students enrolled in a specific course offered by a public postsecondary institution; (6) class or course content on a public entity's password-protected or otherwise secured website for students enrolled, or parents of students enrolled, in a specific class or course at a public elementary or secondary school; and (7) conventional electronic documents that are about a specific individual, their property, or their account and that are password-protected or otherwise secured. Additionally, there are certain limitations to these exceptions—situations in which the otherwise excepted content still must be made accessible. This proposed rule's exceptions as well as the limitations on those exceptions are explained below.

Archived Web Content

Public entities' websites can often include a significant amount of archived web content, which may contain information that is outdated, superfluous, or replicated elsewhere. The Department's impression is that generally, this historic information is of interest to only a small segment of the general population. Still, the information may be of interest to some members of the public, including some individuals with disabilities, who are conducting research or are otherwise interested in these historic documents. The Department is aware and concerned, however, that based on current technologies, public entities would need to expend considerable resources to retroactively make accessible the large quantity of historic or otherwise outdated information available on public entities' websites. Thus, proposed § 35.201(a) provides an exception from the web access requirements of proposed § 35.200 for web content that meets the definition of “archived web content” in proposed § 35.104. As mentioned previously, proposed § 35.104 defines “archived web content” as “web content that (1) is maintained exclusively for reference, research, or recordkeeping; (2) is not altered or updated after the date of archiving; and (3) is organized and stored in a dedicated area or areas clearly identified as being archived.”

The archived web content exception allows public entities to keep and maintain historic web content, while utilizing their resources to make accessible the many up-to-date materials that people need to currently access public services or to participate in civic life.

The Department notes that under this exception, public entities may not circumvent their accessibility obligations by merely labeling their web content as “archived” or by refusing to make accessible any content that is old. The exception focuses narrowly on content that satisfies all three of the criteria necessary to qualify as “archived web content,” namely content that is maintained exclusively for reference, research, or recordkeeping; is not altered or updated after the date of archiving; and is organized and stored in a dedicated area or areas clearly identified as being archived. If any one of those criteria is not met, the content does not qualify as “archived web content.” For example, if an entity maintains content for any purpose other than reference, research, or recordkeeping—such as for purposes of offering a current service, program, or activity—then that content would not fall within the exception, even if an entity labeled it as “archived.” Similarly, an entity would not be able to circumvent its accessibility obligations by rapidly moving newly posted content that is maintained for a purpose other than reference, research, or recordkeeping, or that the entity continues to update, from a non-archived section of its website to an archived section.

Though the Department proposes that archived web content be excepted from coverage under this rule, if an individual with a disability requests that certain archived web content be made accessible, public entities generally have an existing obligation to make these materials accessible in a timely manner and free of charge.

115

See, e.g.,

28 CFR 35.130(b)(7)(i), (f), 35.160(b)(2).

Question 15: How do public entities currently manage content that is maintained for reference, research, or recordkeeping?

Question 16: What would the impact of this exception be on people with disabilities?

Question 17: Are there alternatives to this exception that the Department should consider, or additional limitations that should be placed on this exception? How would foreseeable advances in technology affect the need for this exception?

Preexisting Conventional Electronic Documents

As discussed in the section-by-section analysis for proposed § 35.104 above, the Department is proposing to add a definition for “conventional electronic documents.” Specifically, the proposed definition provides that the term “conventional electronic documents” “means web content or content in mobile apps that is in the following electronic file formats: portable document formats (`PDF'), word processor file formats, presentation file formats, spreadsheet file formats, and database file formats.” This list of conventional electronic documents is intended to be an exhaustive list of file formats, rather than an open-ended list.

Proposed § 35.201(b) provides that “conventional electronic documents created by or for a public entity that are available on a public entity's website or mobile app before the date the public entity is required to comply with this rule” do not have to comply with the accessibility requirements of proposed § 35.200, “unless such documents are currently used by members of the public to apply for, gain access to, or participate in a public entity's services, programs, or activities.”

The Department's research indicates that many websites of public entities contain a significant number of conventional electronic documents, such as comprehensive reports on water quality containing text, images, charts, graphs, and maps. The Department expects that many of these conventional electronic documents are in PDF format, but many conventional electronic documents are formatted as word processor files (

e.g.,

Microsoft Word files), presentation files (

e.g.,

Apple Keynote or Microsoft PowerPoint files), spreadsheet files (

e.g.,

Microsoft Excel files), and database files (

e.g.,

FileMaker Pro or Microsoft Access files).

Because of the substantial number of conventional electronic documents that public entities make available on their websites and mobile apps, and because of the difficulty of remediating some complex types of information and data to make them accessible after-the-fact, the Department believes public entities should generally focus their personnel and financial resources on developing new conventional electronic documents that are accessible and remediating existing conventional electronic documents that are currently used by members of the public to access the public entity's services, programs, or activities. For example, if before the date a public entity is required to comply with this rule, the entity's website contains a series of out-of-date PDF reports on local COVID-19 statistics, those reports generally need not comply with WCAG 2.1. Similarly, if a public entity maintains decades' worth of water quality reports in conventional electronic documents on the same web page as its current water quality report, the old reports that were posted before the date the entity was required to comply with this rule generally do not need to comply with WCAG 2.1. As the public entity posts new reports going forward, however, those reports must comply with WCAG 2.1. This approach is expected to reduce the burdens on public entities.

This exception is subject to a limitation: the exception does not apply to any preexisting documents that are currently used by members of the public to apply for, access, or participate in the public entity's services, programs, or activities. In referencing “documents that are currently used,” the Department intends to cover documents that are used by members of the public at any given point in the future, not just at the moment in time when this rule is published. This limitation includes documents that provide instructions or guidance. For example, a public entity must not only make an application for a business license accessible, but it must also make accessible other materials that may be needed to obtain the license, complete the application, understand the process, or otherwise take part in the program, such as business license application instructions, manuals, sample knowledge tests, and guides, such as “Questions and Answers” documents.

The Department notes that a public entity may not rely on this “preexisting conventional electronic documents” exception to circumvent its accessibility obligations by, for example, converting all of its web content to conventional electronic document formats and posting those documents before the date the entity must comply with this rule. As noted above, any documents that are currently used by members of the public to access the public entity's services, programs, or activities would need to be accessible as defined under this rule, even if those documents were posted before the date the entity was required to comply with the rule. And if an entity updates a conventional electronic document after the date the entity must

comply with this rule, that document would no longer qualify as “preexisting,” and would thus need to be made accessible as defined under this rule.

Question 18: Where do public entities make conventional electronic documents available to the public? Do public entities post conventional electronic documents anywhere else on the web besides their own websites?

Question 19: Would this “preexisting conventional electronic documents” exception reach content that is not already excepted under the proposed archived web content exception? If so, what kinds of additional content would it reach?

Question 20: What would the impact of this exception be on people with disabilities? Are there alternatives to this exception that the Department should consider, or additional limitations that should be placed on this exception? How would foreseeable advances in technology affect the need for this exception?

Third-Party Web Content

Public entities' websites can include or link to many different types of third-party content (

i.e.,

content that is created by someone other than the public entity), some of which is posted by or on behalf of public entities and some of which is not. For example, many public entities' websites contain third-party web content like maps, calendars, weather forecasts, news feeds, scheduling tools, reservations systems, or payment systems. Third-party web content may also be posted by members of the public on a public entity's online message board or other sections of the public entity's website that allow public comment. In addition to third-party content that is posted on the public entity's own website, public entities frequently provide links to third-party content (

i.e.,

links on the public entity's website to content that has been posted on another website that does not belong to the public entity), including links to outside resources and information.

The Department has heard a variety of views regarding whether or not public entities should be responsible for ensuring that third-party content on their websites and linked third-party content are accessible. Some maintain that public entities cannot be held accountable for third-party content on their websites, and without such an exception, public entities may have to remove the content altogether. Others have suggested that public entities should not be responsible for third-party content and linked content unless that content is necessary for individuals to access public entities' services, programs, or activities. The Department has also previously heard the view, however, that public entities should be responsible for third-party content because an entity's reliance on inaccessible third-party content can prevent people with disabilities from having equal access to the public entity's own services, programs, and activities. Furthermore, boundaries between web content generated by a public entity and by a third party are often difficult to discern.

At this time, the Department is proposing the following two limited exceptions related to third-party content in §§ 35.201(c)-(d) and is posing questions for public comment.

Section 35.201(c): Web Content Posted by a Third Party on a Public Entity's Website

Proposed § 35.201(c) provides an exception to the web accessibility requirements of proposed § 35.200 for “web content posted by a third party that is available on a public entity's website.”

The Department is proposing this exception in recognition of the fact that individuals other than a public entity's agents sometimes post content on a public entity's website. For example, members of the public may sometimes post on a public entity's online message boards, wikis, social media, or other web forums, many of which are unregulated, interactive spaces designed to promote the sharing of information and ideas. Members of the public may post frequently, at all hours of the day or night, and a public entity may have little or no control over the content posted. In some cases, a public entity's website may include posts from third parties dating back many years, which are likely of limited, if any, relevance today. Because public entities often lack control over this third-party content, it may be challenging (or impossible) for them to make it accessible. Moreover, because this third-party content may be outdated or unrelated to a public entity's services, programs, and activities, there may be only limited benefit to requiring public entities to make this content accessible. Accordingly, the Department believes it is appropriate to create an exception for this content. However, while this exception applies to web content posted by third parties, it does not apply to the tools or platforms used to post third-party content on a public entity's website such as message boards—these tools and platforms are subject to the rule's technical standard.

This exception applies to, among other third-party content, documents filed by third parties in administrative, judicial, and other legal proceedings that are available on a public entity's website. This

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