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

Federal RegisterApr 24, 2024

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DEPARTMENT OF JUSTICE

28 CFR Part 35

[CRT Docket No. 144; AG Order No. 5919-2024]

RIN 1190-AA79

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

AGENCY:

Civil Rights Division, Department of Justice.

ACTION:

Final rule.

SUMMARY:

The Department of Justice (“Department”) issues its final rule revising the regulation implementing title II of the Americans with Disabilities Act (“ADA”) to establish specific requirements, including the adoption of specific technical standards, for making accessible the services, programs, and activities offered by State and local government entities to the public through the web and mobile applications (“apps”).

DATES:

Effective date:

This rule is effective June 24, 2024.

Compliance dates:

A public entity, other than a special district government, with a total population of 50,000 or more shall begin complying with this rule April 24, 2026. A public entity with a total population of less than 50,000 or any public entity that is a special district government shall begin complying with this rule April 26, 2027.

Incorporation by reference:

The incorporation by reference of certain material listed in the rule is approved by the Director of the Federal Register as of June 24, 2024.

FOR FURTHER INFORMATION CONTACT:

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

www.ada.gov.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of and Need for the Rule

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

The Department has consistently made clear that the title II nondiscrimination requirements apply to all services, programs, and activities of public entities (also referred to as “government services”), including those provided via the web. It also includes those provided via mobile apps.

In this rule, the Department establishes technical standards for web content and mobile app accessibility to give public entities greater clarity in exactly how to meet their ADA obligations and to help ensure equal access to government services for individuals with disabilities.

42 U.S.C. 12132. The Department uses the phrases “State and local government entities” and “public entities” interchangeably throughout this rule to refer to “public entit[ies]” as defined in 42 U.S.C. 12131(1) that are covered under part A of title II of the ADA.

As discussed in the proposed definition in this rule, mobile apps are software applications that are downloaded and designed to run on mobile devices, such as smartphones and tablets.

Public entities are increasingly providing the public access to government services through their web content and mobile apps. For example, government websites and mobile apps often allow the public to obtain information or correspond with local officials without having to wait in line or be placed on hold. Members of the public can also pay fines, apply for State benefits, renew State-issued identification, register to vote, file taxes, obtain up-to-date health and safety resources, request copies of vital records, access mass transit schedules, and complete numerous other tasks via government websites. Individuals can perform many of these same functions on mobile apps. Often, however, State and local government entities' web- and mobile app-based services are not designed or built accessibly and as a result are not equally available to individuals with disabilities. Just as stairs can exclude people who use wheelchairs from accessing government buildings, inaccessible web content and mobile apps can exclude people with a range of disabilities from accessing government services.

It is critical to ensure that individuals with disabilities can access important web content and mobile apps quickly, easily, independently, privately, and equally. Accessible web content and mobile apps help to make this possible. By allowing individuals with disabilities to engage more fully with their governments, accessible web content and mobile apps also promote the equal enjoyment of fundamental constitutional rights, such as rights with respect to speech, assembly, association, petitioning, voting, and due process of law.

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

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 (“Rehabilitation Act”), as amended, 29 U.S.C. 794 (“section 504”), to all activities of State and local government entities regardless of whether the entities receive Federal financial assistance.

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

42 U.S.C. 12101-12213.

42 U.S.C. 12131-12165.

See

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

See

42 U.S.C. 12149(a), 12164.

The Department is the only Federal agency with authority to issue regulations under title II, part A, of the ADA regarding the accessibility of State and local government entities' web content and mobile apps. In addition, under Executive Order 12250, the Department is responsible for ensuring consistency and effectiveness in the implementation of section 504 across the Federal Government (aside from provisions relating to equal

employment).

Given Congress's intent for parity between section 504 and title II of the ADA, the Department must also ensure the consistency of any related agency interpretations of those provisions.

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

E.O. 12250 secs. 1-201(c), 1-503 (Nov. 2, 1980), 45 FR 72995, 72995, 72997 (Nov. 4, 1980).

U.S. Dep't of Just.,

Disability Rights Section: Federal Coordination of Section 504 and Title II of the ADA,

C.R. Div. (Oct. 12, 2021),

https://www.justice.gov/crt/disability-rights-section#:~:text=Federal%20Coordination%20of%20Section%20504,required%20by%20Executive%20Order%2012250

[

https://perma.cc/S5JX-WD82

] (see Civil Rights Division (CRT) Memorandum on Federal Agencies' Implementation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act under the heading “Section 504 and ADA Federal Coordination Resources”).

C. Organization of This Rule

Appendix D to 28 CFR part 35 provides a section-by-section analysis of the Department's changes to the title II regulation and the reasoning behind those changes, in addition to responses to public comments received on the notice of proposed rulemaking (“NPRM”).

The section of appendix D entitled “Public Comments on Other Issues in Response to NPRM” discusses public comments on several issues that are not otherwise specifically addressed in the section-by-section analysis. The Final Regulatory Impact Analysis (“FRIA”) and Final Regulatory Flexibility Analysis (“FRFA”) accompanying this rulemaking both contain further responses to comments relating to those analyses.

88 FR 51948 (Aug. 4, 2023).

D. Overview of Key Provisions of This Final Rule

In this final rule, the Department adds a new subpart H to the title II ADA regulation, 28 CFR part 35, that sets forth technical requirements for ensuring that web content that State and local government entities provide or make available, directly or through contractual, licensing, or other arrangements, is readily accessible to and usable by individuals with disabilities. Web content is defined by § 35.104 to mean the information and sensory experience to be communicated to the user by means of a user agent (

e.g.,

a web browser), including code or markup that defines the content's structure, presentation, and interactions. This includes text, images, sounds, videos, controls, animations, and conventional electronic documents. Subpart H also sets forth technical requirements for ensuring the accessibility of mobile apps that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements.

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

published in June 2018,

https://www.w3.org/TR/2018/REC-WCAG21-20180605/

and

https://perma.cc/UB8A-GG2F

as the technical standard for web content and mobile app accessibility under title II of the ADA. As will be explained in more detail, the Department is requiring that public entities comply with the WCAG 2.1 Level AA success criteria and conformance requirements.

The applicable technical standard will be referred to hereinafter as “WCAG 2.1.” The applicable conformance level will be referred to hereinafter as “Level AA.” To the extent there are differences between WCAG 2.1 Level AA and the standards articulated in this rule, the standards articulated in this rule prevail. As noted below, WCAG 2.1 Level AA is not restated in full in this final rule but is instead incorporated by reference.

https://www.w3.org/TR/2018/REC-WCAG21-20180605/

and

https://perma.cc/UB8A-GG2F.

As explained elsewhere, WCAG 2.1 was updated in 2023, but this rule requires conformance to the 2018 version.

The Permalink used for WCAG 2.1 throughout this rule shows the 2018 version of WCAG 2.1 as it appeared on W3C's website at the time the NPRM was published.

As explained in more detail under “WCAG Conformance Level” in the section-by-section analysis of § 35.200 in appendix D, conformance to Level AA requires satisfying the success criteria labeled Level A as well as those labeled Level AA, in addition to satisfying the relevant conformance requirements.

In recognition of the challenges that small public entities may face with respect to resources for implementing the new requirements, the Department has staggered the compliance dates for public entities according to their total population.

This final rule in § 35.200(b)(1) specifies that a public entity, other than a special district government,

with a total population of 50,000 or more must ensure that web content and mobile apps that the public entity provides or makes available, directly or through contractual, licensing, or other arrangements, comply with WCAG 2.1 Level AA success criteria and conformance requirements beginning two years after the publication of this final rule. Under § 35.200(b)(2), a public entity with a total population of less than 50,000 must comply with these requirements beginning three years after the publication of this final rule. In addition, under § 35.200(b)(2), all special district governments have three years following the publication of this final rule before they must begin complying with these requirements. After the compliance date, ongoing compliance with this final rule is required.

Total population, defined in § 35.104 and explained further in the section-by-section analysis, is generally determined by reference to the population estimate for a public entity (or the population estimate for a public entity of which an entity is an instrumentality) as calculated by the United States Census Bureau.

See

U.S. Census Bureau,

Special District Governments, https://www.census.gov/glossary/?term=Special+district+governments

[

https://perma.cc/8V43-KKL9

]. “Special district government” is also defined in this rule at § 35.104.

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 has set forth exceptions from compliance with the technical standard required under § 35.200 for certain types of content, which are described in detail below in the section-by-section analysis. If the content falls under an exception, that means that the public entity generally does not need to make the content conform to WCAG 2.1 Level AA.

As will be explained more fully, the Department has set forth five specific exceptions from compliance with the technical standard required under § 35.200: (1) archived web content; (2)

preexisting conventional electronic documents, unless such documents are currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities; (3) content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity; (4) conventional electronic documents that are about a specific individual, their property, or their account and that are password-protected or otherwise secured; and (5) preexisting social media posts. As discussed further, if one of these exceptions applies, then the public entity's web content or content in mobile apps that is covered by an exception would not need to comply with the rule's technical standard. The Department has developed these exceptions because it believes that requiring public entities to make the particular content described in these categories accessible under all circumstances could be too burdensome at this time. In addition, requiring accessibility in all circumstances may divert important resources from making accessible key web content and mobile apps that public entities provide or make available. However, upon request from a specific individual, a public entity may have to provide the web content or content in mobile apps to that individual in an accessible format to comply with the entity's existing obligations under other regulatory provisions implementing title II of the ADA. For example, archived town meeting minutes from 2011 might be covered by an exception from the requirement to conform to WCAG 2.1 Level AA. But if a person with low vision, for example, requests an accessible version, then the town would still need to address the person's request under its existing effective communication obligations in 28 CFR 35.160. The way that the town does this could vary based on the facts. For example, in some circumstances, providing a large-print version of the minutes might satisfy the town's obligations, and in other circumstances it might need to provide an electronic version that conforms to the aspects of WCAG 2.1 Level AA relevant to the person's particular access needs.

The final rule contains a series of other mechanisms that are designed to make it feasible for public entities to comply with the rule. The final rule makes clear in § 35.202 the limited circumstances in which “conforming alternate versions” of web content, as defined in WCAG 2.1, can be used as a means of achieving accessibility. As WCAG 2.1 defines it, a conforming alternate version is a separate version of web content that is accessible, up to date, contains the same information and functionality as the inaccessible web content, and can be reached in particular ways, such as through a conforming page or an accessibility-supported mechanism. However, the Department is concerned that WCAG 2.1 could be interpreted to permit a segregated approach and a worse experience for individuals with disabilities. The Department also understands that, in practice, it can be difficult to maintain conforming alternate versions because it is often challenging to keep two different versions of web content up to date. For these reasons, as discussed in the section-by-section analysis of § 35.202, conforming alternate versions are permissible only when it is not possible to make web content directly accessible due to technical or legal limitations. Also, under § 35.203, the final rule allows a public entity flexibility to show that its use of other designs, methods, or techniques as alternatives to WCAG 2.1 Level AA provides substantially equivalent or greater accessibility and usability of the web content or mobile app. Nothing in this final rule prohibits an entity from going above and beyond the minimum accessibility standards this rule sets out.

Additionally, the final rule in §§ 35.200(b)(1) and (2) and 35.204 explains that conformance to WCAG 2.1 Level AA is not required under title II of the ADA to the extent that such conformance would result in a fundamental alteration in the nature of a service, program, or activity of the public entity or in undue financial and administrative burdens.

The final rule also explains in § 35.205 the limited circumstances in which a public entity that is not in full compliance with the technical standard will be deemed to have met the requirements of § 35.200. As discussed further in the section-by-section analysis of § 35.205, a public entity will be deemed to have satisfied its obligations under § 35.200 in the limited circumstance in which the public entity can demonstrate that its nonconformance to the technical standard has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the public entity's web content or mobile app to access the same information, engage in the same interactions, conduct the same transactions, and otherwise participate in or benefit from the same services, programs, and activities as individuals without disabilities, in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use.

More information about these provisions is provided in the section-by-section analysis.

E. Summary of Costs and Benefits

To estimate the costs and benefits associated with this rule, the Department conducted a FRIA. This analysis is required for significant regulatory actions under Executive Order 12866, as amended.

The FRIA serves to inform the public about the rule's costs and benefits to society, taking into account both quantitative and qualitative costs and benefits. A detailed summary of the FRIA is included in Section IV of this preamble. Table 2 below shows a high-level overview of the Department's monetized findings. Further, this rule will benefit individuals with disabilities uniquely and in their day-to-day lives in many ways that could not be quantified due to unavailable data. Non-monetized costs and benefits are discussed in the FRIA.

See

E.O. 14094, 88 FR 21879 (Apr. 6, 2023); E.O. 13563, 76 FR 3821 (Jan. 18, 2011); E.O. 13272, 67 FR 53461 (Aug. 13, 2002); E.O. 13132, 64 FR 43255 (Aug. 4, 1999); E.O. 12866, 58 FR 51735 (Sept. 30, 1993).

Comparing annualized costs and benefits of this rule, monetized benefits to society outweigh the costs. Net annualized benefits over the first 10 years following publication of this rule total $1.9 billion per year using a 3 percent discount rate and $1.5 billion per year using a 7 percent discount rate (Table 2). Additionally, beyond this 10-year period, benefits are likely to continue to accrue at a greater rate than costs because many of the costs are upfront costs and the benefits tend to have a delay before beginning to accrue.

To consider the relative magnitude of the estimated costs of this regulation, the Department compares the costs to revenues for public entities. Because calculating this ratio for every public entity would be impractical, the Department used the estimated average annualized cost compared to the average annual revenue by each public entity type. The costs for each public entity type and size are generally estimated to be below 1 percent of revenues (the one exception is small independent community colleges, for which the cost-to-revenue ratio is 1.05 percent and 1.10 percent using a 3 percent and 7 percent

discount rate, respectively),

so the Department does not believe the rule will be unduly burdensome or costly for public entities.

However, the Department notes that revenue for small independent community colleges was estimated using the 2012 Census of Governments, so revenue for small independent community colleges would likely be underestimated if small independent community colleges had a greater share of total local government revenue in 2022 than in 2012. If this were true, the Department expects that the cost-to-revenue ratio for small independent community colleges would be lower.

As a point of reference, the United States Small Business Administration advises agencies that a potential indicator that the impact of a regulation may be “significant” is whether the costs exceed 1 percent of the gross revenues of the entities in a particular sector, although the threshold may vary based on the particular types of entities at issue.

See

U.S. Small Bus. Admin.,

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

at 19 (Aug. 2017),

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

[

https://perma.cc/PWL9-ZTW6

];

see also

U.S. Env't Prot. Agency,

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

at 24 (Nov. 2006),

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

[

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

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

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

Figure

3% Discount

rate

7% Discount

rate

Average annualized costs (millions)

$3,331.3

$3,515.0

Average annualized benefits (millions)

$5,229.5

$5,029.2

Net benefits (millions)

$1,898.2

$1,514.2

Cost-to-benefit ratio

0.6

0.7

II. Relationship to Other Laws

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

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

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.

42 U.S.C. 12111-12117.

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

This final rule builds on, and does not supplant, those preexisting requirements. A public entity must continue to meet all of its existing obligations under other laws.

See

20 U.S.C. 1412; 29 U.S.C. 794; 34 CFR 104.32 through 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 (title I), State and local government entities' services, programs, and activities (title II, part A), transportation (title II, part B), and places of public accommodation (title III). The ADA requires newly designed and constructed or altered State and local government entities' facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities.

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

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

42 U.S.C. 12101

et seq.

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

On July 26, 1991, the Department issued its final rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III),

and include the ADA Standards for Accessible Design (“ADA Standards”).

At that time, the web was in its infancy—and mobile apps did not exist—so State and local government entities did not use either the web or mobile apps as a means of providing services to the public. Thus, web content and mobile apps were not mentioned in the Department's title II regulation. Only a few years later, however, as web content of general interest became available, public entities began using web content to provide information to the public. Public entities and members of the public also now rely on mobile apps for critical government services.

Title III prohibits discrimination on the basis of disability in the full and equal enjoyment of places of public accommodation (privately operated entities whose operations affect commerce and fall within at least one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (facilities intended for nonresidential use by a private entity and whose operations affect commerce, such as factories, warehouses, and office buildings)—to comply with the ADA Standards. 42 U.S.C. 12181-12189.

See

28 CFR 35.104, 36.104.

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, or activities offered by State and local government entities, including those offered via the web, such as education services, voting, town meetings, vaccine registration, tax filing systems, applications for housing, and applications for benefits.

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, or activities.

See

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

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

[

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

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. 21, 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 Nueces County, Texas Under the Americans with Disabilities Act (effective Jan. 30, 2015),

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

[

https://perma.cc/TX66-WQY7

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

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

[

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

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

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

[

https://perma.cc/U7VE-MBSG

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

The Department has consistently heard from members of the public—including public entities and individuals with disabilities—that there is a need for additional information on how to specifically comply with the ADA in this context. In June 2003, the Department published a document entitled “Accessibility of State and Local Government websites to People with Disabilities,” which provides tips for State and local government entities on ways they can make their websites accessible so that they can better ensure that individuals with disabilities have equal access to the services, programs, and activities that are provided through those websites.

U.S. Dep't of Just.,

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

(June 2003),

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

[

https://perma.cc/Z7JT-USAN

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

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

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 opportunity to individuals with disabilities. Websites—and often mobile apps—allow members of the public to get information or request a service within just a few minutes, and often to do so independently. Getting the same information or requesting the same service using a staffed telephone line takes more steps and may result in wait times or difficulty getting the information.

U.S. Dep't of Just.,

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

(June 2003),

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

[

https://perma.cc/Z7JT-USAN

For example, State and local government entities' websites may allow members of the public to quickly review large quantities of information, like information about how to register for government services, information on pending government ordinances, or instructions about how to apply for a government benefit. Members of the public can then use government websites to promptly act on that information by, for example, registering for programs or activities, submitting comments on pending government ordinances, or filling out an application for a government benefit. A member of the public could not realistically accomplish these tasks efficiently over the phone.

Additionally, a person with a disability who cannot use an inaccessible online tax form might have to call to request assistance with filling out either online or mailed forms, which could involve significant delay, added costs, and could require providing private information such as banking details or Social Security numbers over the phone without the benefit of certain security features available for online transactions. A staffed telephone line also may not be accessible to someone who is deafblind, or who may have combinations of other disabilities, such as a coordination issue impacting typing and an audio processing disability impacting comprehension over the phone. Finally, calling a staffed telephone line lacks the privacy of looking up information on a website. A caller needing public safety resources, for example, might be unable to access a private location to ask for help on the phone, whereas an accessible website would allow users to privately locate resources. For these reasons, the Department does not now believe that a staffed telephone line—even if it is offered 24/7—provides equal opportunity in the way that an accessible website can.

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

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

Federal Register

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 on various topics, including what standards, if any, it should adopt for web accessibility; whether the Department should adopt coverage limitations for certain entities, like small businesses; and what resources and services are available to make existing websites accessible to individuals with disabilities.

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 the ANPRM. The Department later announced that it had decided to pursue separate rulemakings addressing web accessibility under titles II and III.

75 FR 43460 (July 26, 2010).

Id.

75 FR 43465-43467.

Id.

See

U.S. Dep't of Just.,

Statement of Regulatory Priorities

(Fall 2015),

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

[

https://perma.cc/YF2L-FTSK

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

Federal Register

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).

81 FR 28662-28686.

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

Federal Register

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

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, U.S. Department of Justice (Oct. 11, 2018),

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

[

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

E.O. 13992 sec. 2, 86 FR 7049, 7049 (Jan. 20, 2021).

The Department is now reengaging in efforts to promulgate regulations establishing technical standards for web accessibility as well as mobile app accessibility for public entities. On August 4, 2023, the Department published an NPRM in the

Federal Register

as part of this rulemaking effort.

The NPRM set forth the Department's specific proposals and sought public feedback. The NPRM included more than 60 questions for public input.

The public comment period closed on October 3, 2023.

The Department received approximately 345 comments from members of the public, including individuals with disabilities, public entities, disability advocacy groups, members of the accessible technology industry, web developers, and many others. The Department also published a fact sheet describing the NPRM's proposed requirements in plain language to help ensure that members of the public understood the rule and had an opportunity to provide feedback.

In addition, the Department attended listening sessions with various stakeholders while the public comment period was open. Those sessions provided important opportunities to receive through an additional avenue the information that members of the public wanted to share about the proposed rule. The three listening sessions that the Department attended were hosted by the U.S. Small Business Administration (“SBA”) Office of Advocacy, the Association on Higher Education and Disability (“AHEAD”), and the Great Lakes ADA Center at the University of Illinois at Chicago, in conjunction with the ADA National Network. The sessions convened by the SBA Office of Advocacy and the Great Lakes ADA Center were open to members of the public. There were approximately 200 attendees at the SBA session and 380 attendees at the Great Lakes ADA Center session.

The session with AHEAD included two representatives from AHEAD along with five representatives from public universities. The Department welcomed the opportunity to hear from public stakeholders. However, the Department informed attendees that these listening sessions did not serve as a substitute for submitting written comments during the notice and comment period.

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

88 FR 51948 (Aug. 4, 2023).

88 FR 51958-51986.

See

88 FR 51948.

U.S. Dep't of Just.,

Fact Sheet: Notice of Proposed Rulemaking on Accessibility of Web Information and Services of State and Local Government Entities, ADA.gov

(July 20, 2023),

https://www.ada.gov/resources/2023-07-20-web-nprm/#

[

https://perma.cc/B7JL-9CVS

U.S. Dep't of Just.,

Ex Parte Communication Record on Proposed Rule on Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations

(Sept. 29, 2023),

https://www.regulations.gov/document/DOJ-CRT-2023-0007-0158

[

https://perma.cc/43JX-AAMG

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

(Nov. 17, 2023),

https://www.regulations.gov/document/DOJ-CRT-2023-0007-0355

[

https://perma.cc/W45S-XDQH

D. Need for Department Action

1. Use of Web Content by Title II Entities

As public comments have reinforced, public entities regularly use the web to offer services, programs, or activities to the public.

The web can often help public entities streamline their services, programs, or activities and disseminate important information quickly and effectively. For example, members of the public routinely make online service requests—from requesting streetlight repairs and bulk trash pickups to reporting broken parking meters—and can often check the status of those service requests online. Public entities' websites also offer the opportunity for people to, for example, renew their vehicle registrations, submit complaints, purchase event permits, reserve public facilities, sign up for recreational activities, and pay traffic fines and property taxes, making some of these

otherwise time-consuming tasks relatively easy and expanding their availability beyond regular business hours. Access to these services via the web can be particularly important for those who live in rural communities and might otherwise need to travel long distances to reach government buildings.

See, e.g.,

John B. Horrigan & Lee Rainie, Pew Research Ctr.,

Connecting with Government or Government Data

(Apr. 21, 2015),

https://www.pewresearch.org/internet/2015/04/21/connecting-with-government-or-government-data/

[

https://perma.cc/BFA6-QRQU

]; Samantha Becker et al.,

Opportunity for All: How the American Public Benefits from internet Access at U.S. Libraries,

at 7-8, 120-27 (2010),

https://www.imls.gov/sites/default/files/publications/documents/opportunityforall_0.pdf

[

https://perma.cc/3FDG-553G

See, e.g.,

NORC Walsh Ctr. for Rural Health Analysis & Rural Health Info. Hub,

Access to Care for Rural People with Disabilities Toolkit

(Dec. 2016),

https://www.ruralhealthinfo.org/toolkits/disabilities.pdf

[

https://perma.cc/YX4E-QWEE

Many public entities use online resources to promote access to public benefits. People can use websites of public entities to file for unemployment or other benefits and find and apply for job openings. Applications for many Federal benefits, such as unemployment benefits and food stamps, are also available through State websites. Through the websites of State and local government entities, business owners can register their businesses, apply for occupational and professional licenses, bid on contracts to provide products and services to public entities, and obtain information about laws and regulations with which they must comply. The websites of many State and local government entities also allow members of the public to research and verify business licenses online and report unsavory business practices.

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

Public entities are also using websites as an integral part of public education.

Public schools at all levels, including public colleges and universities, offer programs, reading material, and classroom instruction through websites. Most public colleges and universities rely heavily on websites and other online technologies in the application process for prospective students; for housing eligibility and on-campus living assignments; for course registration and assignments; and for a wide variety of administrative and logistical functions in which students must participate. Similarly, in many public elementary and secondary school settings, teachers and administrators communicate via the web to parents and students about grades, assignments, and administrative matters.

See, e.g.,

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

]; Natasha Singer,

Online Schools Are Here To Stay, Even After the Pandemic,

N.Y. Times, Apr. 11, 2021,

https://www.nytimes.com/2021/04/11/technology/remote-learning-online-school.html

[

https://perma.cc/ZYF6-79EE

] (June 23, 2023); Institute of Education Sciences, National Ctr. for Education Statistics,

Distance Learning,

National Center for Education Statistics,

https://nces.ed.gov/fastfacts/display.asp?id=80

[

https://perma.cc/XZT2-UKAD

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

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

A study conducted in April 2021 found that 90 percent of adults reported the web was essential or important to them.

Several commenters on the NPRM specifically highlighted challenges underscored by the COVID-19 pandemic such as the denial of access to safety information and pandemic-related services, including vaccination appointments.

See

Volker Stocker et al.,

Chapter 2: COVID-19 and the Internet: Lessons Learned, in

Beyond the Pandemic? Exploring the Impact of COVID-19 on Telecommunications and the Internet 17, 21-29 (2023),

https://www.emerald.com/insight/content/doi/10.1108/978-1-80262-049-820231002/full/pdf

[

https://perma.cc/82P5-GVRV

]; Colleen McClain et al., Pew Research Ctr.,

The Internet and the Pandemic

3 (Sep. 1, 2021),

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

[

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

See

Jina Suh et al.,

Disparate Impacts on Online Information Access During the COVID-19 Pandemic,

13 Nature Comms. 1, 2-6 (Nov. 19, 2022),

https://www.nature.com/articles/s41467-022-34592-z#Sec6

[

https://perma.cc/CP2X-3ES6

]; Sara Fischer & Margaret Harding McGill,

Broadband Usage Will Keep Growing Post-Pandemic,

Axios (May 4, 2021),

https://www.axios.com/2021/05/04/broadband-usage-post-pandemic-increase.

A Perma archive link was unavailable for this citation; Kerry Dobransky & Eszter Hargittai,

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

American Behavioral Scientist (Mar. 29, 2021),

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

A Perma archive link was unavailable for this citation.

Colleen McClain et al., Pew Research Ctr.,

The Internet and the Pandemic,

at 3 (Sept. 1, 2021),

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

[

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

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

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

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.

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

See

Ctrs. for Disease Control and Prevention,

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

[

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

See

Nat'l Council on Disability,

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

(Oct. 29, 2021),

https://www.ncd.gov/report/an-extra/

[

https://perma.cc/2AUU-6R73

As discussed at greater length below, many public entities' web content is not fully accessible, which often means that individuals with disabilities are denied equal access to important services, programs, or activities.

2. Use of Mobile Applications by Title II Entities

This rule also covers mobile apps because public entities often use mobile apps to offer their services, programs, or activities to the public. Mobile apps are software applications that are downloaded and designed to run on mobile devices, such as smartphones and tablets.

Many public entities use

mobile apps to provide services and reach the public in various ways, including the purposes for which public entities use websites, in addition to others. For example, as with websites, residents can often use mobile apps provided or made available by public entities to submit service requests, such as requests to clean graffiti or repair a street-light outage, and track the status of these requests. Public entities' apps often take advantage of common features of mobile devices, such as camera and Global Positioning System (“GPS”) functions,

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.

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.

Mobile apps are distinct from a website that can be accessed by a mobile device because, in part, mobile apps are not directly accessible on the web; they are often downloaded on a mobile device. Mona Bushnell,

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

Bus. News Daily,

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

[

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

] (Aug. 3, 2022). A mobile website, by contrast, is a website that is designed so that it can be accessed by a mobile device similarly to how it

can be accessed on a desktop computer.

Id.

Both mobile apps and mobile websites are covered by this rule.

See

IBM Ctr. for the Bus. of Gov't,

Using Mobile Apps in Government,

at 11 (2015),

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

[

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

Id.

at 32.

See id.

at 28, 30-31.

See id.

at 7-8.

See

Rob Pegoraro,

COVID-19 Tracking Apps, Supported by Apple and Google, Begin Showing Up in App Stores,

USA Today, Aug. 25, 2020,

https://www.usatoday.com/story/tech/columnist/2020/08/25/google-and-apple-supported-coronavirus-tracking-apps-land-states/3435214001/

[

https://perma.cc/YH8C-K2F9

] (Aug. 26, 2020) (describing how various states' apps allow contact tracing through anonymized data and can provide information about testing and other COVID-19 safety practices); Chandra Steele,

Does My State Have a COVID-19 Vaccine App,

PCMag,

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

[

https://perma.cc/H338-MCWC

] (Feb. 27, 2023).

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 mobile apps or access information contained on those sites or apps. For example, individuals who are unable to use their hands may use speech recognition software to navigate a website or a mobile app, while individuals who are blind may rely on a screen reader to convert the visual information on a website or mobile app into speech. Many websites and mobile apps are coded or presented such that some individuals with disabilities do not have access to all the information or features provided on or available on the website or mobile app.

For instance, individuals who are deaf may be unable to access information in web videos and other multimedia presentations that do not have captions. Individuals with low vision may be unable to read websites or mobile apps that do not allow text to be resized or do not provide enough contrast. Individuals with limited manual dexterity or vision disabilities who use assistive technology that enables them to interact with websites may be unable to access sites that do not support keyboard alternatives for mouse commands. These same individuals, along with individuals with cognitive and vision disabilities, often encounter difficulty using portions of websites and mobile apps that require timed responses from users but do not give users the opportunity to indicate that they need more time to respond.

See Section 2.2, “Number of Individuals with Disabilities,” in the accompanying FRIA for more information on the estimated prevalence of individuals with certain disabilities.

See

W3C,

Diverse Abilities and Barriers, https://www.w3.org/WAI/people-use-web/abilities-barriers/

[

https://perma.cc/DXJ3-BTFW

] (May 15, 2017).

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

The study found that 23 percent of the mobile apps reviewed did not provide content descriptions of images for most of their image-based buttons.

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 people with vision disabilities.

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

Univ. of Washington CREATE (Mar. 1, 2021),

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

[

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

Id.

See

Lucia Cerchie,

Text Resizing in iOS and Android,

The A11y Project (Jan. 28, 2021),

https://www.a11yproject.com/posts/text-resizing-in-ios-and-android/

[

https://perma.cc/C29M-N2J6

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

e.g.,

a simple icon or a detailed graph). Similarly, if websites lack headings that facilitate navigation using assistive technology, they may be difficult or impossible for someone using assistive technology to navigate.

Additionally, websites or mobile apps may fail to present tables in a way that allows the information in the table to be interpreted by someone who is using assistive technology.

Web-based forms, which are an essential part of accessing government services, are often inaccessible to individuals with disabilities who use assistive technology. For example, field elements on forms, which are the empty boxes on forms that receive input for specific pieces of information, such as a last name or telephone number, may lack clear labels that can be read by assistive technology. Inaccessible form fields make it difficult for people using assistive technology to fill out online forms, pay fees and fines, or otherwise participate in government services, programs, or activities using a website. Some governmental entities use inaccessible third-party websites and mobile apps to accept online payments, while others request public input through their own inaccessible websites and mobile apps. As commenters have emphasized, these barriers greatly impede the ability of individuals with

disabilities to access the services, programs, or activities offered by public entities via the web and mobile apps.

See, e.g.,

W3C,

WCAG 2.1 Understanding Docs: Understanding SC 1.3.1: Info and Relationships (Level A), https://www.w3.org/WAI/WCAG21/Understanding/info-and-relationships

[

https://perma.cc/9XRQ-HWWW

] (June 20, 2023).

See, e.g.,

W3C,

Tables Tutorial, https://www.w3.org/WAI/tutorials/tables/

[

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

] (Feb. 16, 2023).

In many instances, removing certain web content and mobile app accessibility barriers is neither difficult nor especially costly. For example, the addition of invisible attributes known as alt text or alt tags to an image helps orient an individual using a screen reader and allows them to gain access to the information on the website.

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.

W3C,

Images Tutorial, https://www.w3.org/WAI/tutorials/images/

[

https://perma.cc/G6TL-W7ZC

] (Feb. 08, 2022).

Id.

W3C,

Technique G130: Providing Descriptive Headings, https://www.w3.org/WAI/WCAG21/Techniques/general/G130.html

[

https://perma.cc/XWM5-LL6S

] (June 20, 2023).

Public comments on the NPRM described the lack of independence, and the resulting lack of privacy, that can stem from accessibility barriers. These commenters noted that without full and equal access to digital spaces, individuals with disabilities must constantly rely on support from others to perform tasks they could complete themselves if the online infrastructure enabled accessibility. Commenters noted that when using public entities' inaccessible web content or mobile apps for interactions that involve confidential information, individuals with disabilities must forfeit privacy and independence to seek assistance. Commenters pointed out that constantly needing assistance from others not only impacts self-confidence and perceptions of self-worth, but also imposes a costly and burdensome “time tax” because it means that individuals with disabilities must spend more time and effort to gain access than individuals without disabilities.

Commenters also pointed out that accessible digital spaces benefit everyone. Just as the existence of curb cuts benefits people in many different scenarios—such as those using wheelchairs, pushing strollers, and using a trolley to deliver goods—accessible web content and mobile apps are generally more user friendly. For example, captioning is often used by individuals viewing videos in quiet public spaces and sufficient color contrast makes it generally easier to read text.

4. Inadequacy of Voluntary Compliance With Technical Standards

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

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).

Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,

56 FR 35544, 35566 (July 26, 1991);

see

28 CFR part 36, appendix B.

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.

As State and local government entities have increasingly turned to mobile apps to offer services, programs, or activities, the Department has enforced those entities' title II obligations in that context as well.

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

See

28 CFR 35.102.

U.S. Dep't of Just.,

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

(June 2003),

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

[

https://perma.cc/Z7JT-USAN

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

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

(May 7, 2007),

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

[

https://perma.cc/VM3M-AHDJ

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

Guidance on Web Accessibility and the ADA, ADA.gov

(Mar. 18, 2022),

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

[

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

];

see also

U.S. Env't Prot. Agency,

EPA's Action Dev. Process: Final Guidance for EPA Rulewriters: Regulatory Flexibility Act,

at 9, 24 (Nov. 2006),

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

[

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

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

The Department received some comments on the proposed rule's estimated costs and benefits. These comments are discussed throughout the FRIA. One methodological change was made from the analysis performed for the NPRM on the timing of compliance for making password-protected course content accessible by public educational entities, which is discussed further in the FRIA. However, the numbers in the FRIA also differ from the proposed rule because data have been updated to reflect the most recently available data and because monetary values are now reported in 2022 dollars (whereas the analysis performed for the NPRM presented values in 2021 dollars).

Table 3—Initial Familiarization, Testing, and Remediation Costs

[Millions]

Cost

State

County

Municipal

Township

Special

district

School

district

U.S. territories

Higher ed.

Total

Regulatory familiarization

$0.02

$1.00

$6.42

$5.35

$12.7

$4.03

$0.00

$0.62

$30.1

Websites

253.0

819.9

2,606.6

1,480.7

408.5

2,014.0

7.1

1,417.4

9,007.3

Mobile apps

14.7

56.8

100.0

1.4

0.0

406.3

1.3

68.9

649.2

Postsecondary course remediation

N/A

5,508.5

Primary and secondary course remediation

N/A

50.8

19.8

42.8

N/A

1,134.1

N/A

1,247.5

Third-party website remediation

7.2

39.4

147.2

85.5

19.6

113.8

0.0

93.6

506.4

Total

275.0

967.8

2,880.1

1,615.8

440.8

3,672.2

8.4

7,089.1

16,949.1

Table 4—Average Annual Cost After Implementation

[Millions]

Cost

State

County

Municipal

Township

Special

district

School

district

U.S. territories

Higher ed.

Total

Websites

$22.0

$71.9

$237.3

$136.9

$43.8

$181.7

$0.6

$123.4

$817.8

Mobile apps

0.01

0.04

0.03

0.00

0.23

0.00

0.05

0.35

Postsecondary course remediation

N/A

1,001.6

Primary and secondary course remediation

N/A

5.1

2.0

4.3

N/A

113.4

N/A

124.7

Third-party website remediation

0.6

3.5

13.4

7.9

2.1

10.2

0.0

8.2

45.9

Total

22.6

80.6

252.7

149.1

45.9

305.6

0.6

1,133.2

1,990.3

Table 5—Present Value of 10-Year Total Cost, 3 Percent Discount Rate

[Millions]

Cost

State

County

Municipal

Township

Special

district

School

district

U.S. territories

Higher ed.

Total

Regulatory familiarization

$0.02

$0.97

$6.23

$5.20

$12.33

$3.91

$0.00

$0.60

$29.26

Websites

366.5

1,190.3

3,812.6

2,174.4

634.1

2,939.6

10.3

2,053.9

13,181.7

Mobile apps

14.1

54.2

95.8

1.3

0.0

385.4

1.2

66.2

618.1

Postsecondary course remediation

N/A

11,890.1

Primary and secondary course remediation

N/A

79.6

31.1

67.1

N/A

1,778.9

N/A

1,956.8

Third-party website remediation

10.5

57.4

215.3

125.6

30.4

165.8

0.0

135.6

740.7

Total

391.1

1,382.4

4,161.0

2,373.7

676.8

5,273.6

11.5

14,146.5

28,416.7

Table 6—Present Value of 10-Year Total Cost, 7 Percent Discount Rate

[Millions]

Cost

State

County

Municipal

Township

Special

district

School

district

U.S. territories

Higher ed.

Total

Regulatory familiarization

$0.02

$0.93

$6.00

$5.00

$11.87

$3.76

$0.00

$0.58

$28.16

Websites

323.3

1,048.5

3,327.8

1,892.9

548.3

2,570.7

9.1

1,811.7

11,532.2

Mobile apps

13.3

50.7

90.5

1.3

0.0

358.5

1.2

62.5

577.9

Postsecondary course remediation

N/A

10,188.1

Primary and secondary course remediation

N/A

69.7

27.2

58.7

N/A

1,557.3

N/A

1,713.0

Third-party website remediation

9.3

50.5

187.9

109.3

26.3

145.3

0.0

119.6

648.2

Total

345.9

1,220.4

3,639.4

2,067.2

586.5

4,635.5

10.2

12,182.5

24,687.6

Table 7—10-Year Average Annualized Cost, 3 Percent Discount Rate

[Millions]

Cost

State

County

Municipal

Township

Special

district

School

district

U.S. territories

Higher ed.

Total

Regulatory familiarization

$0.00

$0.11

$0.73

$0.61

$1.44

$0.46

$0.00

$0.07

$3.43

Websites

43.0

139.5

446.9

254.9

74.3

344.6

1.2

240.8

1,545.3

Mobile apps

1.7

6.3

11.2

0.2

0.0

45.2

0.1

7.8

72.5

Postsecondary course remediation

N/A

1,393.9

Primary and secondary course remediation

N/A

9.3

3.6

7.9

N/A

208.5

N/A

229.4

Third-party website remediation

1.2

6.7

25.2

14.7

3.6

19.4

0.0

15.9

86.8

Total

45.8

162.1

487.8

278.3

79.3

618.2

1.4

1,658.4

3,331.3

Table 8—10-Year Average Annualized Cost, 7 Percent Discount Rate

[Millions]

Cost

State

County

Municipal

Township

Special

district

School

district

U.S. territories

Higher ed.

Total

Regulatory familiarization

$0.00

$0.13

$0.85

$0.71

$1.69

$0.54

$0.00

$0.08

$4.01

Websites

46.0

149.3

473.8

269.5

78.1

366.0

1.3

257.9

1,641.9

Mobile apps

1.9

7.2

12.9

0.2

0.0

51.0

0.2

8.9

82.3

Postsecondary course remediation

N/A

1,450.6

Primary and secondary course remediation

N/A

9.9

3.9

8.4

N/A

221.7

N/A

243.9

Third-party website remediation

1.3

7.2

26.8

15.6

3.7

20.7

0.0

17.0

92.3

Total

49.2

173.8

518.2

294.3

83.5

660.0

1.5

1,734.5

3,515.0

Table 9—Annual Benefit After Full Implementation

[Millions]

Benefit type

Visual

disability

Other

relevant

disability

Without

relevant

disabilities

State and local

gov'ts

Total

Time savings—current users

$813.5

$1,022.1

$2,713.9

N/A

$4,549.5

Time savings—mobile apps

76.3

95.9

254.5

N/A

426.7

Educational attainment

10.2

295.8

N/A

306.0

Total benefits

900.0

1,413.7

2,968.5

0.0

5,282.2

For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as “other relevant disabilities.”

Table 10—10-Year Average Annualized Benefits, 3 Percent Discount Rate

[Millions]

Benefit type

Visual

disability

Other

relevant

disability

Without

relevant

disabilities

State and local

gov'ts

Total

Time savings—current users

$686.3

$862.3

$2,289.6

N/A

$3,838.3

Time savings—mobile apps

64.4

80.9

214.7

N/A

360.0

Educational attainment

34.4

996.9

N/A

1,031.3

Total benefits

785.1

1,940.0

2,504.4

0.0

5,229.5

For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as “other relevant disabilities.”

Table 11—10-Year Average Annualized Benefits, 7 Percent Discount Rate

[Millions]

Benefit type

Visual

disability

Other

relevant

disability

Without

relevant

disabilities

State and local

gov'ts

Total

Time savings—current users

$668.1

$839.4

$2,229.0

N/A

$3,736.6

Time savings—mobile apps

62.7

78.7

209.0

N/A

350.4

Educational attainment

31.4

910.8

N/A

942.2

Total benefits

762.2

1,828.9

2,438.0

0.0

5,029.2

For purposes of this table, hearing, cognitive, and manual dexterity disabilities are referred to as “other relevant disabilities.”

Table 12—10-Year Average Annualized Comparison of Costs and Benefits

Figure

3% Discount rate

7% Discount rate

Average annualized costs (millions)

$3,331.3

$3,515.0

Average annualized benefits (millions)

$5,229.5

$5,029.2

Net benefits (millions)

$1,898.2

$1,514.2

Cost-to-benefit ratio

0.6

0.7

B. Final Regulatory Flexibility Analysis Summary

The Department has prepared a FRFA to comply with its obligations under the Regulatory Flexibility Act and related laws and Executive Orders requiring executive branch agencies to consider the effects of regulations on small entities.

The Department's FRFA includes an explanation of steps that the Department has taken to minimize the impact of this rule on small entities, responses to a comment by the Chief Counsel for Advocacy of the Small Business Administration, a description of impacts of this rule on small entities, alternatives the Department considered related to small entities, and other information required by the RFA. The Department includes a short summary of some monetized cost and benefit findings made in the FRFA below, but the full FRFA will be published along with the Department's FRIA, and it will be made available to the public at

https://www.justice.gov/crt/disability-rights-section.

See

U.S. Small Bus. Admin.,

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

at 19 (Aug. 2017),

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

[

https://perma.cc/PWL9-ZTW6

The Department calculated both costs and benefits to small government entities as part of its FRFA. The Department also compared costs to revenues for small government entities to evaluate the economic impact to these small government entities. The costs for each small government entity type and size are generally estimated to be below 1 percent of revenues (the one exception is small independent community colleges, for which the cost-to-revenue ratio is 1.05 percent and 1.10 percent using a 3 percent and 7 percent discount rate, respectively),

so the Department does not believe the rule will be unduly burdensome or costly for public entities.

These costs include one-time costs for familiarization with the requirements of the rule, the purchase of software to assist with remediation of web content or mobile apps, the time spent testing and remediating web content and mobile apps to comply with WCAG 2.1 Level AA, and elementary, secondary, and postsecondary education course content remediation. Annual costs include recurring costs for software licenses and remediation of future content.

See

U.S. Small Bus. Admin.,

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

at 19 (Aug. 2017),

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

[

https://perma.cc/PWL9-ZTW6

];

see also

U.S. Env't Prot. Agency, EPA's Action Dev. Process:

Final Guidance for EPA Rulewriters: Regulatory Flexibility Act,

at 24 (Nov. 2006),

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

[

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

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

Costs to small entities are displayed in Table 13 and Table 14; Table 15 contains the costs and revenues per government type and cost-to-revenue

ratios using a 3 percent and 7 percent discount rate. Because the Department's cost estimates take into account different small entity types and sizes, the Department believes the estimates in this analysis are generally representative of what smaller entities of each type should expect to pay. This is because the Department's methodology generally estimated costs based on the sampled baseline accessibility to full accessibility in accordance with this rule, which provides a precise estimate of the costs within each government type and size. While the Department recognizes that there may be variation in costs for differently sized small entity types, the Department's estimates are generally representative given the precision in our methodology within each stratified group. The Department received several comments on its estimates for small government entity costs. A summary of those comments and the Department's responses are included in the accompanying FRFA.

Table 13—Present Value of Total 10-Year Costs per Entity, 3% Discount Rate

Type of government entity

Number of

entities

Regulatory

familiarization

Website

testing and

remediation

Mobile app

testing and

remediation

Postsecondary

course

remediation

Primary and

secondary

course

remediation

Third-Party

website

remediation

Total

Special district

38,542

$320

$16,452

N/A

$790

$17,561

County (small)

2,105

320

52,893

12,022

N/A

$19,949

5,743

90,927

Municipality (small)

18,729

320

161,722

N/A

876

8,957

171,875

Township (small)

16,097

320

132,260

N/A

2,198

7,695

142,472

School district (small)

11,443

320

168,261

27,634

N/A

81,971

7,648

285,834

U.S. Territory (small)

320

1,026,731

68,209

N/A

6,160

1,101,420

Community College

1,146

320

1,020,862

15,916

$3,617,001

N/A

67,409

4,721,508

Table 14—Present Value of Total 10-Year Costs per Entity, 7% Discount Rate

Type of government entity

Number of

entities

Regulatory

familiarization

Website

testing and

remediation

Mobile app

testing and

remediation

Postsecondary

course

remediation

Primary and

secondary

course

remediation

Third-Party

website

remediation

Total

Special district

38,542

$308

$14,226

N/A

$683

$15,217

County (small)

2,105

308

45,992

11,147

N/A

$17,463

4,993

79,904

Municipality (small)

18,729

308

140,772

N/A

767

7,797

149,643

Township (small)

16,097

308

115,101

N/A

1,924

6,697

124,029

School district (small)

11,443

308

146,475

25,624

N/A

71,758

6,658

250,822

U.S. Territory (small)

308

894,141

63,264

N/A

5,365

963,078

Community College

1,146

308

900,471

15,031

$3,099,245

N/A

59,460

4,074,515

Table 15—Number of Small Entities and Ratio of Costs to Government Revenues

Government type

Number of

small entities

Average

annual cost

per entity

(3%)

Average

annual cost

per entity

(7%)

Total 10-year

average

annual costs

(3%)

(millions)

Total 10-year

average

annual costs

(7%)

(millions)

Annual

revenue

(millions)

Ratio of

costs to

revenue

(3%)

Ratio of

costs to

revenue

(7%)

County

2,105

$10,659.4

$11,376.5

$22.4

$23.9

$69,686.3

0.03

Municipality

18,729

20,149.0

21,305.8

377.4

399.0

197,708.7

0.19

0.20

Township

16,097

16,666.1

17,616.8

268.3

283.6

59,802.5

0.45

0.47

Special district

38,542

2,058.7

2,166.5

79.3

83.5

298,338.3

0.03

School district

11,443

36,023.7

38,347.6

412.2

438.8

354,350.5

0.12

U.S. territory

129,120.0

137,120.7

0.3

992.6

0.03

CCs

960

553,504.8

580,119.2

531.4

556.9

N/A

CCs—independent

231

553,504.8

580,119.2

127.9

134.0

12,149.5

1.05

1.10

Total (includes all CCs)

87,878

19,245.7

20,324.4

1,691.3

1,786.1

N/A

Total (only independent CCs)

87,149

14,776.6

15,641.7

1,287.8

1,363.2

993,028.5

0.13

0.14

Excludes community colleges, which are costed separately.

Includes all dependent community college districts and small independent community college districts. Revenue data are not available for the dependent community college districts.

This cost consists of regulatory familiarization costs, government website testing and remediation costs, mobile app testing and remediation costs, postsecondary education course remediation costs, elementary and secondary education course remediation costs, and costs for third-party websites averaged over ten years.

Though not included in the Department's primary benefits analysis due to methodological limitations, the Department estimated time savings for State and local government entities from reduced contacts (

i.e.,

fewer interactions assisting residents). Improved web accessibility will lead some individuals who accessed government services via the phone, mail, or in person to begin using the public entity's website to complete the task. This will generate time savings for government employees. In the Department's FRFA, the Department estimates that this will result in time savings to small governments of $192.6 million per year once full implementation is complete. Assuming lower benefits during the implementation period results in average annualized benefits of $162.5 million and $158.1 million to small governments using a 3 percent and 7 percent discount rate, respectively. The Department notes that these benefits rely on assumptions for which the Department could not find reliable data, and stresses the uncertainty of these estimates given the strong assumptions made.

The Department explains in greater detail its efforts to minimize the economic impact on small entities, as well as estimates of regulatory alternatives that the Department considered to reduce those impacts in

the full FRFA accompanying this rule. The FRFA also includes other information such as the Department's responses to the comment from the Chief Counsel for Advocacy of the Small Business Administration and responses to other comments related to the rule's impact on small entities. Finally, the Department will issue a small entity compliance guide,

which should help public entities better understand their obligations under this rule.

See

Public Law 104-121, sec. 212, 110 Stat. 847, 858 (1996) (5 U.S.C. 601 note).

C. Executive Order 13132: Federalism

Executive Order 13132 requires executive branch agencies to consider whether a proposed rule will have federalism implications.

That is, the rulemaking agency must determine whether the rule is likely to have substantial direct effects on State and local governments, on the relationship between the Federal Government and the States and localities, or on the distribution of power and responsibilities among the different levels of government. If an agency believes that a proposed rule is likely to have federalism implications, it must consult with State and local government entity officials about how to minimize or eliminate the effects.

64 FR 43255 (Aug. 4, 1999).

Title II of the ADA covers State and local government entity services, programs, and activities, and, therefore, has federalism implications. State and local government entities have been subject to the ADA since 1991, and the many State and local government entities that receive Federal financial assistance have also been required to comply with the requirements of section 504 of the Rehabilitation Act. Hence, the ADA and the title II regulation are not novel for State and local government entities.

In crafting this regulation, the Department has been mindful of its obligation to meet the objectives of the ADA while also minimizing conflicts between State law and Federal interests. Since the Department began efforts to issue a web accessibility regulation more than 13 years ago, the Department has received substantial feedback from State and local government entities about the potential impacts of rulemaking on this topic. In the NPRM, the Department solicited comments from State and local officials and their representative national organizations on the rule's effects on State and local government entities, and on whether the rule may have direct effects on the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government. The Department also attended three listening sessions on the NPRM hosted by the SBA's Office of Advocacy, the Association on Higher Education and Disability, and the Great Lakes ADA Center at the University of Illinois at Chicago, in conjunction with the ADA National Network. These sessions were cumulatively attended by more than 500 members of the public, including representatives from public entities, and the Department received feedback during these sessions about the potential impacts of the rule on public entities.

In response to the NPRM, the Department received written comments from members of the public about the relationship between this rule and State and local laws addressing public entities' web content and mobile apps. Some commenters asked questions and made comments about how this rule would interact with State laws providing greater or less protection for the rights of individuals with disabilities. The Department wishes to clarify that, consistent with 42 U.S.C. 12201, this final rule will preempt State laws affecting entities subject to the ADA only to the extent that those laws provide less protection for the rights of individuals with disabilities. This rule does not invalidate or limit the remedies, rights, and procedures of any State laws that provide greater or equal protection for the rights of individuals with disabilities. Moreover, the Department's provision on equivalent facilitation at § 35.203 provides that nothing prevents a public entity from using designs, methods, or techniques as alternatives to those prescribed in this rule, provided that such alternatives result in substantially equivalent or greater accessibility and usability. Accordingly, for example, if a State law requires public entities in that State to conform to WCAG 2.2, nothing in this rule would prevent a public entity from complying with that standard.

The Department also received comments asking how this rule will interact with State or local laws requiring public entities to post certain content online. The Department notes that this rule does not change public entities' obligations under State and local laws governing the types of content that public entities must provide or make available online. Instead, this rule simply requires that when public entities provide or make available web content or mobile apps, they must ensure that that content and those apps comply with the requirements set forth in this rule. This is consistent with the remainder of the title II regulatory framework, under which public entities have been required to ensure that their services, programs, and activities comply with specific accessibility requirements since 1991, even for services, programs, or activities that are otherwise governed by State and local laws.

D. National Technology Transfer and Advancement Act of 1995

The National Technology Transfer and Advancement Act of 1995 (“NTTAA”) directs that, as a general matter, all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, which are private—generally nonprofit—organizations that develop technical standards or specifications using well-defined procedures that require openness, balanced participation among affected interests and groups, fairness and due process, and an opportunity for appeal, as a means to carry out policy objectives or activities.

100

In addition, the NTTAA directs agencies to consult with voluntary, private sector, consensus standards bodies and requires that agencies participate with such bodies in the development of technical standards when such participation is in the public interest and is compatible with agency and departmental missions, authorities, priorities, and budget resources.

101

100

Public Law 104-113, sec. 12(d)(1) (15 U.S.C. 272 note);

see also

Office of Mgmt. and Budget, Circular A-119 (Jan 27, 2016),

https://www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-119_as_of_1_22.pdf

[

https://perma.cc/A5LP-X3DB

101

Public Law 104-113, sec. 12(d)(2).

The Department is adopting WCAG 2.1 Level AA as the accessibility standard to apply to web content and mobile apps of title II entities. WCAG 2.1 Level AA was developed by W3C, which has been the principal international organization involved in developing protocols and guidelines for the web. W3C develops a variety of technical standards and guidelines, including ones relating to privacy, internationalization of technology, and accessibility. Thus, the Department is complying with the NTTAA in selecting WCAG 2.1 Level AA as the applicable accessibility standard.

E. Plain Language Instructions

The Department makes every effort to promote clarity and transparency in its rulemaking. In any regulation, there is a tension between drafting language that is simple and straightforward and

drafting language that gives full effect to issues of legal interpretation. The Department operates a toll-free ADA Information Line at (800) 514-0301 (voice); 1-833-610-1264 (TTY) that the public is welcome to call for assistance understanding anything in this rule. In addition, the ADA.gov website strives to provide information in plain language about the law, including this rule. The Department will also issue a small entity compliance guide,

102

which should help public entities better understand their obligations under this rule.

102

See

Public Law 104-121, sec. 212, 110 Stat. 847, 858 (1996) (5 U.S.C. 601 note).

F. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (“PRA”), no person is required to respond to a “collection of information” unless the agency has obtained a control number from OMB.

103

This final rule does not contain any collections of information as defined by the PRA.

103

44 U.S.C. 3501

et seq.

G. Unfunded Mandates Reform Act

Section 4(2) of the Unfunded Mandates Reform Act of 1995

104

excludes from coverage under that Act any proposed or final Federal regulation that “establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability.” Accordingly, this rulemaking is not subject to the provisions of the Unfunded Mandates Reform Act.

104

2 U.S.C. 1503(2).

H. Incorporation by Reference

As discussed above, through this rule, the Department is adopting the internationally recognized accessibility standard for web access, WCAG 2.1 Level AA, published in June 2018, as the technical standard for web and mobile app accessibility under title II of the ADA. WCAG 2.1 Level AA, published by W3C WAI, specifies success criteria and requirements that make web content more accessible to all users, including individuals with disabilities. The Department incorporates WCAG 2.1 Level AA by reference into this rule, instead of restating all of its requirements verbatim. To the extent there are distinctions between WCAG 2.1 Level AA and the standards articulated in this rule, the standards articulated in this rule prevail.

The Department notes that when W3C publishes new versions of WCAG, those versions will not be automatically incorporated into this rule. Federal agencies do not incorporate by reference into published regulations future versions of standards developed by bodies like W3C. Federal agencies are required to identify the particular version of a standard incorporated by reference in a regulation.

105

When an updated version of a standard is published, an agency must revise its regulation if it seeks to incorporate any of the new material.

105

See, e.g.,

1 CFR 51.1(f) (“Incorporation by reference of a publication is limited to the edition of the publication that is approved [by the Office of the Federal Register]. Future amendments or revisions of the publication are not included.”).

WCAG 2.1 Level AA is reasonably available to interested parties. Free copies of WCAG 2.1 Level AA are available online on W3C's website at

https://www.w3.org/TR/2018/REC-WCAG21-20180605/

and

https://perma.cc/UB8A-GG2F.

In addition, a copy of WCAG 2.1 Level AA is also available for inspection by appointment at the Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 150 M St. NE, 9th Floor, Washington, DC 20002.

I. Congressional Review Act

In accordance with the Congressional Review Act, the Department has determined that this rule is a major rule as defined by 5 U.S.C. 804(2). The Department will submit this final rule and other appropriate reports to Congress and the Government Accountability Office for review.

List of Subjects for 28 CFR Part 35

Administrative practice and procedure, Civil rights, Communications, Incorporation by reference, Individuals with disabilities, State and local requirements.

By the authority vested in me as Attorney General by law, including 5 U.S.C. 301; 28 U.S.C. 509, 510; sections 201 and 204 of the of the Americans with Disabilities Act, Public Law 101-336, as amended, and section 506 of the ADA Amendments Act of 2008, Public Law 110-325, and for the reasons set forth in appendix D to 28 CFR part 35, chapter I of title 28 of the Code of Federal Regulations is amended as follows—

PART 35—NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES

1. The authority citation for part 35 continues to read as follows:

Authority:

5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a.

Subpart A—General

2. Amend § 35.104 by adding definitions for “Archived web content,” “Conventional electronic documents,” “Mobile applications (apps),” “Special district government,” “Total population,” “User agent,” “WCAG 2.1,” and “Web content” in alphabetical order to read as follows:

§ 35.104

Definitions.

Archived web content

means web content that—

(1) Was created before the date the public entity is required to comply with subpart H of this part, reproduces paper documents created before the date the public entity is required to comply with subpart H, or reproduces the contents of other physical media created before the date the public entity is required to comply with subpart H;

(2) Is retained exclusively for reference, research, or recordkeeping;

(3) Is not altered or updated after the date of archiving; and

(4) Is organized and stored in a dedicated area or areas clearly identified as being archived.

Conventional electronic documents

means web content or content in mobile apps that is in the following electronic file formats: portable document formats (“PDF”), word processor file formats, presentation file formats, and spreadsheet file formats.

Mobile applications (“apps”)

means software applications that are downloaded and designed to run on mobile devices, such as smartphones and tablets.

Special district government

means a public entity—other than a county, municipality, township, or independent school district—authorized by State law to provide one function or a limited number of designated functions with sufficient administrative and fiscal autonomy to qualify as a separate government and whose population is not calculated by the United States Census Bureau in the most recent decennial Census or Small Area Income and Poverty Estimates.

Total population

means—

(1) If a public entity has a population calculated by the United States Census Bureau in the most recent decennial Census, the population estimate for that public entity as calculated by the United States Census Bureau in the most recent decennial Census; or

(2) If a public entity is an independent school district, or an instrumentality of an independent school district, the population estimate for the independent school district as calculated by the United States Census Bureau in the most recent Small Area Income and Poverty Estimates; or

(3) If a public entity, other than a special district government or an independent school district, does not have a population estimate calculated by the United States Census Bureau in the most recent decennial Census, but is an instrumentality or a commuter authority of one or more State or local governments that do have such a population estimate, the combined decennial Census population estimates for any State or local governments of which the public entity is an instrumentality or commuter authority; or

(4) For the National Railroad Passenger Corporation, the population estimate for the United States as calculated by the United States Census Bureau in the most recent decennial Census.

User agent

means any software that retrieves and presents web content for users.

WCAG 2.1

means the Web Content Accessibility Guidelines (“WCAG”) 2.1, W3C Recommendation 05 June 2018,

https://www.w3.org/TR/2018/REC-WCAG21-20180605/

and

https://perma.cc/UB8A-GG2F.

WCAG 2.1 is incorporated by reference elsewhere in this part (see §§ 35.200 and 35.202).

Web content

means the information and sensory experience to be communicated to the user by means of a user agent, including code or markup that defines the content's structure, presentation, and interactions. Examples of web content include text, images, sounds, videos, controls, animations, and conventional electronic documents.

3. Add subpart H to read as follows:

Subpart H—Web and Mobile Accessibility

Sec.

35.200

Requirements for web and mobile accessibility.

35.201

Exceptions.

35.202

Conforming alternate versions.

35.203

Equivalent facilitation.

35.204

Duties.

35.205

Effect of noncompliance that has a minimal impact on access.

35.206-35.209

[Reserved]

§ 35.200

Requirements for web and mobile accessibility.

(a)

General.

A public entity shall ensure that the following are readily accessible to and usable by individuals with disabilities:

(1) Web content that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements; and

(2) Mobile apps that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements.

(b)

Requirements.

(1) Beginning April 24, 2026, a public entity, other than a special district government, with a total population of 50,000 or more shall ensure that the web content and mobile apps that the public entity provides or makes available, directly or through contractual, licensing, or other arrangements, comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.

(2) Beginning April 26, 2027, a public entity with a total population of less than 50,000 or any public entity that is a special district government shall ensure that the web content and mobile apps that the public entity provides or makes available, directly or through contractual, licensing, or other arrangements, comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.

(3) WCAG 2.1 is incorporated by reference into this section with the approval of the Director of the

Federal Register

under 5 U.S.C. 552(a) and 1 CFR part 51. All material approved for incorporation by reference is available for inspection at the U.S. Department of Justice and at the National Archives and Records Administration (“NARA”). Contact the U.S. Department of Justice at: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 150 M St. NE, 9th Floor, Washington, DC 20002; ADA Information Line: (800) 514-0301 (voice) or 1-833-610-1264 (TTY); website:

www.ada.gov

[

https://perma.cc/U2V5-78KW

]. For information on the availability of this material at NARA, visit

www.archives.gov/federal-register/cfr/ibr-locations.html

[

https://perma.cc/9SJ7-D7XZ

] or email

fr.inspection@nara.gov.

The material may be obtained from the World Wide Web Consortium (“W3C”) Web Accessibility Initiative (“WAI”), 401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-2711; email:

contact@w3.org;

website:

https://www.w3.org/TR/2018/REC-WCAG21-20180605/

and

https://perma.cc/UB8A-GG2F.

§ 35.201

Exceptions.

The requirements of § 35.200 do not apply to the following:

(a)

Archived web content.

Archived web content as defined in § 35.104.

(b)

Preexisting conventional electronic documents.

Conventional electronic documents that are available as part of a public entity's web content or mobile apps before the date the public entity is required to comply with this subpart, unless such documents are currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities.

(c)

Content posted by a third party.

Content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity.

(d)

Individualized, password-protected or otherwise secured conventional electronic documents.

Conventional electronic documents that are:

(1) About a specific individual, their property, or their account; and

(2) Password-protected or otherwise secured.

(e)

Preexisting social media posts.

A public entity's social media posts that were posted before the date the public entity is required to comply with this subpart.

§ 35.202

Conforming alternate versions.

(a) A public entity may use conforming alternate versions of web content, as defined by WCAG 2.1, to comply with § 35.200 only where it is not possible to make web content directly accessible due to technical or legal limitations.

(b) WCAG 2.1 is incorporated by reference into this section with the approval of the Director of the

Federal Register

under 5 U.S.C. 552(a) and 1 CFR part 51. All material approved for incorporation by reference is available for inspection at the U.S. Department of Justice and at NARA. Contact the U.S. Department of Justice at: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 150 M St. NE, 9th Floor, Washington, DC 20002; ADA Information Line: (800) 514-0301 (voice) or 1-833-610-1264 (TTY); website:

www.ada.gov

[

https://

perma.cc/U2V5-78KW

]. For information on the availability of this material at NARA, visit

www.archives.gov/federal-register/cfr/ibr-locations.html

[

https://perma.cc/9SJ7-D7XZ

] or email

fr.inspection@nara.gov.

The material may be obtained from W3C WAI, 401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-2711; email:

contact@w3.org;

website:

https://www.w3.org/TR/2018/REC-WCAG21-20180605/

and

https://perma.cc/UB8A-GG2F.

§ 35.203

Equivalent facilitation.

Nothing in this subpart prevents the use of designs, methods, or techniques as alternatives to those prescribed, provided that the alternative designs, methods, or techniques result in substantially equivalent or greater accessibility and usability of the web content or mobile app.

§ 35.204

Duties.

Where a public entity can demonstrate that compliance with the requirements of § 35.200 would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens, compliance with § 35.200 is required to the extent that it does not result in a fundamental alteration or undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with § 35.200 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or their designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity to the maximum extent possible.

§ 35.205

Effect of noncompliance that has a minimal impact on access.

A public entity that is not in full compliance with the requirements of § 35.200(b) will be deemed to have met the requirements of § 35.200 in the limited circumstance in which the public entity can demonstrate that the noncompliance has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the public entity's web content or mobile app to do any of the following in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use:

(a) Access the same information as individuals without disabilities;

(b) Engage in the same interactions as individuals without disabilities;

(d) Otherwise participate in or benefit from the same services, programs, and activities as individuals without disabilities.

§§ 35.206-35.209

[Reserved]

4. Add appendix D to part 35 to read as follows:

Appendix D to Part 35—Guidance to Revisions to ADA Title II Regulation on Accessibility of Web Information and Services of State and Local Government Entities

Note:

This appendix contains guidance providing a section-by-section analysis of the revisions to this part published on April 24, 2024.

Section-by-Section Analysis and Response to Public Comments

This appendix provides a detailed description of the Department's changes to this part (the title II regulation), the reasoning behind those changes, and responses to public comments received in connection with the rulemaking. The Department made changes to subpart A of this part and added subpart H to this part. The section-by-section analysis addresses the changes in the order they appear in the title II regulation.

Subpart A—General

Section 35.104 Definitions

“Archived Web Content”

The Department is including in § 35.104 a definition for “archived web content.” “Archived web content” is defined as web content that was created before the date the public entity is required to comply with subpart H of this part, reproduces paper documents created before the date the public entity is required to comply with subpart H, or reproduces the contents of other physical media created before the date the public entity is required to comply with subpart H. Second, the web content is retained exclusively for reference, research, or recordkeeping. Third, the web content is not altered or updated after the date of archiving. Fourth, the web content is organized and stored in a dedicated area or areas clearly identified as being archived. The definition is meant to capture historic web content that, while outdated or superfluous, is maintained unaltered in a dedicated archived area for reference, research, or recordkeeping. The term is used in the exception set forth in § 35.201(a). The Department provides a more detailed explanation of the application of the exception in the section-by-section analysis of § 35.201(a).

The Department made several revisions to the definition of “archived web content” from the notice of proposed rulemaking (“NPRM”). The Department added a new part to the definition to help clarify the scope of content covered by the definition and associated exception. The new part of the definition, the first part, specifies that archived web content is limited to three types of historic content: web content that was created before the date the public entity is required to comply with subpart H of this part; web content that reproduces paper documents created before the date the public entity is required to comply with subpart H; and web content that reproduces the contents of other physical media created before the date the public entity is required to comply with subpart H.

Web content that was created before the date a public entity is required to comply with subpart H of this part satisfies the first part of the definition. In determining the date web content was created, the Department does not intend to prohibit public entities from making minor adjustments to web content that was initially created before the relevant compliance dates specified in § 35.200(b), such as by redacting personally identifying information from web content as necessary before it is posted to an archive, even if the adjustments are made after the compliance date. In contrast, if a public entity makes substantial changes to web content after the date the public entity is required to comply with subpart H, such as by adding, updating, or rearranging content before it is posted to an archive, the content would likely no longer meet the first part of the definition. If the public entity later alters or updates the content after it is posted in an archive, the content would not meet the third part of the definition of “archived web content” and it would generally need to conform to WCAG 2.1 Level AA.

Web content that reproduces paper documents or that reproduces the contents of other physical media would also satisfy the first part of the definition if the paper documents or the contents of the other physical media were created before the date the public entity is required to comply with subpart H of this part. Paper documents include various records that may have been printed, typed, handwritten, drawn, painted, or otherwise marked on paper. Videotapes, audiotapes, film negatives, CD-ROMs, and DVDs are examples of physical media. The Department anticipates that public entities may identify or discover historic paper documents or historic content contained on physical media that they wish to post in an online archive following the time they are required to comply with subpart H. For example, a State agricultural agency might move to a new building after the date it is required to comply with subpart H and discover a box in storage that contains

hundreds of paper files and photo negatives from 1975 related to farms in the state at that time. If the agency reproduced the documents and photos from the film negatives as web content, such as by scanning the documents and film negatives and saving the scans as PDF documents that are made available online, the resulting PDF documents would meet the first part of the definition of “archived web content” because the underlying paper documents and photos were created in 1975. The Department reiterates that it does not intend to prohibit public entities from making minor adjustments to web content before posting it to an archive, such as by redacting personally identifying information from paper documents. Therefore, the State agricultural agency could likely redact personally identifying information about farmers from the scanned PDFs as necessary before posting them to its online archive. But, if the agency were to make substantial edits to PDFs, such as by adding, updating, or rearranging content before posting the PDFs to its archive, the PDFs would likely not meet the first part of the definition of “archived web content” because, depending on the circumstances, they may no longer be a reproduction of the historic content. In addition, if the agency later altered or updated the PDFs after they were posted in an archive, the content would not meet the third part of the definition of “archived web content” and it would generally need to conform to WCAG 2.1 Level AA.

The Department added the first part to the definition of “archived web content” after considering all the comments it received. In the NPRM, the Department sought feedback about the archived web content exception, including whether there are alternatives to the exception that the Department should consider or additional limitations that should be placed on the exception.

Commenters suggested various ways to add a time-based limitation to the definition or exception. For example, some commenters suggested that archived content should be limited to content created or posted before a certain date, such as the date a public entity is required to comply with subpart H of this part; there should be a certain time period before web content can be archived, such as two years after the content is created or another time frame based on applicable laws related to public records; the exception should expire after a certain period of time; or public entities should have to remediate archived web content over time, prioritizing content that is most important for members of the public. In contrast, another commenter suggested that the exception should apply to archived web content posted after the date the public entity is required to comply with subpart H if the content is of historical value and only minimally altered before posting.

88 FR 51967.

After reviewing the comments, the Department believes the first part of the definition sets an appropriate time-based limitation on the scope of content covered by the definition and exception that is consistent with the Department's stated intent in the NPRM. In the NPRM, the Department explained that the definition of “archived web content” and the associated exception were intended to cover historic content that is outdated or superfluous.

The definition in § 35.104, which is based on whether the relevant content was created before the date a public entity is required to comply with subpart H of this part, is now more aligned with, and better situated to implement, the Department's intent to cover historic content. The Department believes it is appropriate to include a time-based limitation in the definition, rather than to add new criteria stating that content must be historic, outdated, or superfluous, because it is more straightforward to differentiate content based on the date the content was created. Therefore, there will be greater predictability for individuals with disabilities and public entities as to which content is covered by the exception.

88 FR 51966.

The Department declines to establish time-based limitations for when content may be posted to an archive or to otherwise set an expiration date for the exception. As discussed elsewhere in this appendix, the Department recognizes that many public entities will need to carefully consider the design and structure of their web content before dedicating a certain area or areas for archived content, and that, thereafter, it will take time for public entities to identify all content that meets the definition of “archived web content” and post it in the newly created archived area or areas. The archived web content exception thus provides public entities flexibility as to when they will archive web content, so long as the web content was created before the date the public entity was required to comply with subpart H of this part or the web content reproduces paper documents or the contents of other physical media created before the date the public entity was required to comply with subpart H. In addition, the Department does not believe it is necessary to establish a waiting period before newly created web created content can be posted in an archive. New content created after the date a public entity is required to comply with subpart H will generally not meet the first part of the definition of “archived web content.” In the limited circumstances in which newly created web content could meet the first part of the definition because it reproduces paper documents or the contents of other physical media created before the date the public entity is required to comply with subpart H, the Department believes the scope of content covered by the exception is sufficiently limited by the second part of the definition: whether the content is retained exclusively for reference, research, or recordkeeping.

In addition to adding a new first part to the definition of “archived web content,” the Department made one further change to the definition from the NPRM. In the NPRM, what is now the second part of the definition pertained to web content that is “maintained” exclusively for reference, research, or recordkeeping. The word “maintained” is now replaced with “retained.” The revised language is not intended to change or limit the coverage of the definition. Rather, the Department recognizes that the word “maintain” can have multiple relevant meanings. In some circumstances, “maintain” may mean “to continue in possession” of property, whereas in other circumstances it might mean “to engage in general repair and upkeep” of property.

The Department uses the word “maintain” elsewhere in the title II regulation, at § 35.133(a), consistent with the latter definition. In contrast, the third part of the definition for “archived web content” specifies that content must not be altered or updated after the date of archiving. Such alterations or updates could be construed as repair or upkeep, but that is not what the Department intended to convey with its use of the word “maintained” in this provision. To avoid confusion about whether a public entity can alter or update web content after it is archived, the Department instead uses the word “retained,” which has a definition synonymous with the Department's intended use of “maintain” in the NPRM.

Maintain,

Black's Law Dictionary (11th ed. 2019).

See Retain,

Black's Law Dictionary (11th ed. 2019) (“To hold in possession or under control; to keep and not lose, part with, or dismiss.”).

Commenters raised concerns about several aspects of the definition of “archived web content.” With respect to the second part of the definition, commenters stated that the definition does not clearly articulate when content is retained exclusively for reference, research, or recordkeeping. Commenters stated that the definition could be interpreted inconsistently, and it could be understood to cover important information that should be accessible. For example, commenters were concerned that web content containing public entities' past meeting minutes where key decisions were made would qualify as archived content, as well as web content containing laws, regulations, court decisions, or prior legal interpretations that are still relevant. Therefore, commenters suggested that the definition should not cover recordkeeping documents, agendas, meeting minutes, and other related documents at all. One commenter recommended adding to the definition to clarify that it does not apply to content a public entity uses to offer a current service, program, or activity, and another commenter suggested that content should be archived depending on how frequently members of the public seek to access the content. One commenter also stated that the Department is left with the responsibility to determine whether web content is appropriately designated as archived when enforcing subpart H of this part in the future, and the commenter believed that this enforcement may be insufficient to avoid public entities evading their responsibilities under subpart H. Another commenter recommended that the Department should conduct random audits to determine if public entities are properly designating archived web content.

The Department's revised definition of “archived web content,” and specifically the new first part of the definition, make clear that the definition only pertains to content created before the date the public entity is

required to comply with subpart H of this part. Therefore, new content such as agendas, meeting minutes, and other documents related to meetings that take place after the public entity is required to comply with subpart H would likely not meet all parts of the definition of “archived web content.” This revision to the regulatory text is responsive to comments raising the concern that current and newly created content might be erroneously labeled as archived based on perceived ambiguity surrounding when content is being retained solely for “reference, research, or recordkeeping.” Given the wide variety of web content that public entities provide or make available, the Department does not believe it is advisable to add additional, more specific language in the definition about what types of content are covered. The Department also believes it would be difficult to create a more specific and workable definition for “archived web content” based on how frequently members of the public seek to view certain content given the wide variation in the types and sizes of public entities and the volume of their web traffic. Whether web content is retained exclusively for reference, research, or recordkeeping will depend on the facts of the particular situation. Based on some of the examples of web content that commenters discussed in connection with the definition, the Department notes that if a public entity posts web content that identifies the current policies or procedures of the public entity, or posts web content containing or interpreting applicable laws or regulations related to the public entity, that web content is unlikely to be covered by the exception. This is because the content is notifying members of the public about their ongoing rights and responsibilities. It therefore is not, as the definition requires, being used exclusively for reference, research, or recordkeeping.

Commenters also raised concerns about the fourth part of the definition of “archived web content,” which requires archived web content to be stored in a dedicated area or areas clearly identified as being archived. Some commenters did not believe public entities should be required to place archived web content in a dedicated area or areas clearly identified as being archived in order to be covered by the exception at § 35.201(a). Commenters stated that public entities should retain flexibility in organizing and storing files according to how their web content is designed and structured, and it might not be clear to members of the public to look for content in an archive depending on the overall makeup of the web content. Commenters also stated that it would be burdensome to create an archive area, identify web content for the archive, and move the content into the archive. One commenter stated that public entities might remove content rather than move it to a dedicated archive. Commenters instead suggested that the web content itself could be individually marked as archived regardless of where it is posted. One commenter also requested the Department clarify that the term “area” includes “websites” and “repositories” where archived web content is stored.

After carefully weighing these comments, the Department has decided not to change the fourth part of the definition for “archived web content.” The Department believes storing archived web content in a dedicated area or areas clearly identified as being archived will result in the greatest predictability for individuals with disabilities about which web content they can expect to conform to WCAG 2.1 Level AA. However, the Department notes that it did not identify specific requirements about the structure of an archived area, or how to clearly identify an area as being archived, in order to provide public entities greater flexibility when complying with subpart H of this part. For example, in some circumstances a public entity may wish to create separate web pages or websites to store archived web content. In other circumstances, a public entity may wish to clearly identify that a specific section on a specific web page contains archived web content, even if the web page also contains non-archived content in other separate sections. However public entities ultimately decide to store archived web content, the Department reiterates that predictability for individuals with disabilities is paramount. To this end, the label or other identification for a dedicated archived area or areas must be clear so that individuals with disabilities are able to detect when there is content they may not be able to access. Whether a particular dedicated area is clearly identified as being archived will, of course, depend on the facts of the particular situation. The Department also emphasizes that the existence of a dedicated area or areas for archived content must not interfere with the accessibility of other web content that is not archived.

Some commenters also recommended an alternative definition of “archived web content” that does not include the second or fourth parts of the definition. Commenters proposed that archived web content should be defined as web content that (1) was provided or made available prior to the effective date of the final rule and (2) is not altered or updated after the effective date of the final rule. While the Department agrees that a time-based distinction is appropriate and has therefore added the first part to the definition, the Department does not believe the commenters' approach suggested here is advisable because it has the potential to cause a significant accessibility gap for individuals with disabilities if public entities rely on web content that is not regularly updated or changed. Under the commenters' proposed definition, the exception for archived web content might cover important web content used for reasons other than reference, research, or recordkeeping if the content has not been updated or altered. As discussed in more detail in the section-by-section analysis of § 35.201(a), the purpose of the exception for archived web content is to help public entities focus their resources on making accessible the most important materials that people use most widely and consistently, rather than historic or outdated web content that is only used for reference, research, or recordkeeping. Furthermore, as discussed in the preceding paragraph, the Department believes the fourth part of the definition is necessary to ensure the greatest predictability for individuals with disabilities about which web content they can expect to conform to WCAG 2.1 Level AA.

Commenters made other suggestions related to the definition of and exception for “archived web content.” The Department has addressed these comments in the discussion of the § 35.201(a) archived web content exception in the section-by-section analysis.

“Conventional Electronic Documents”

The Department is including in § 35.104 a definition for “conventional electronic documents.” “Conventional electronic documents” are defined as web content or content in mobile apps that is in the following electronic file formats: portable document formats, word processor file formats, presentation file formats, and spreadsheet file formats. The definition thus provides an exhaustive list of electronic file formats that constitute conventional electronic documents. Examples of conventional electronic documents include: Adobe PDF files (

i.e.,

portable document formats), Microsoft Word files (

i.e.,

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

i.e.,

presentation files), and Microsoft Excel files (

i.e.,

spreadsheet files). The term “conventional electronic documents” is used in § 35.201(b) to provide an exception for certain such documents that are available as part of a public entity's web content or mobile apps before the compliance date of subpart H of this part, unless such documents are currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities. The term is also used in § 35.201(d) to provide an exception for certain individualized, password-protected or otherwise secured conventional electronic documents, and is addressed in more detail in the discussion in the section-by-section analysis of § 35.201(b) and (d). The definition of “conventional electronic documents” covers documents created or saved as electronic files that are commonly available in an electronic form on public entities' web content and mobile apps and that would have been traditionally available as physical printed output.

In the NPRM, the Department asked whether it should craft a more flexible definition of “conventional electronic documents” instead of a definition based on an exhaustive list of file formats.

In response, the Department heard a range of views from commenters. Some commenters favored a broader and more generalized definition instead of an exhaustive list of file formats. For example, commenters suggested that the Department could describe the properties of conventional electronic documents and provide a non-exhaustive list of examples of such documents, or the definition could focus on the importance of the content contained in a document rather than the file format. Some commenters favoring a broader definition reasoned that technology evolves rapidly, and the exhaustive list of file formats the Department

identified might not keep pace with technological advancements.

88 FR 51958, 51968.

Other commenters preferred the Department's approach of identifying an exhaustive list of file formats. Some commenters noted that an exhaustive list provides greater clarity and predictability, which assists public entities in identifying their obligations under subpart H of this part. Some commenters suggested that the Department could provide greater clarity by identifying specific file types in the regulatory text rather than listing file formats (

e.g.,

the Department might specify the Microsoft Word “.docx” file type rather than “word processor file formats”).

After considering all the comments, the Department declines to change its approach to defining conventional electronic documents. The Department expects that a more flexible definition would result in less predictability for both public entities and individuals with disabilities, especially because the Department does not currently have sufficient information about how technology will develop in the future. The Department seeks to avoid such uncertainty because

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