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ARCHITECTURAL AND

TRANSPORTATION BARRIERS

COMPLIANCE BOARD

36 CFR Parts 1193 and 1194

RIN 3014–AA37

Information and Communication Technology (ICT) Standards and Guidelines

AGENCY: Architectural and Transportation Barriers Compliance Board.

ACTION: Final rule.

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

DATES: This final rule is effective March 20, 2017. However, compliance with the section 508-based standards is not required until January 18, 2018.

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

FOR FURTHER INFORMATION CONTACT:

Timothy Creagan, Access Board, 1331 F Street NW., Suite 1000, Washington, DC 20004–1111. Telephone: (202) 272–0016 (voice) or (202) 272–0074 (TTY). Or Bruce Bailey, Access Board, 1331 F Street NW., Suite 1000, Washington, DC 20004–1111. Telephone: (202) 272–0024 (voice) or (202) 272–0070 (TTY) Email addresses: 508@access-board.gov.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose and Legal Authority In this final rule, the Access Board is updating its existing Electronic and Information Technology Accessibility Standards under section 508 of the Rehabilitation Act of 1973, (‘‘508

Standards’’), as well as our Telecommunications Act Accessibility Guidelines under Section 255 of the Communications Act of 1934 (‘‘255 Guidelines’’). Given the passage of nearly two decades since their issuance, the existing 508 Standards and 255 Guidelines are in need of a ‘‘refresh’’ in several important respects. This final rule is intended to, among other things, address advances in information and communication technology that have occurred since the guidelines and standards were issued in 1998 and 2000 respectively, harmonize with accessibility standards developed by standards organizations worldwide in recent years, and ensure consistency with the Board’s regulations that have been promulgated since the late 1990s.

The Revised 508 Standards and 255 Guidelines support the access needs of individuals with disabilities, while also taking into account the costs of providing accessible information and communication technology to Federal agencies, as well as manufacturers of telecommunications equipment and customer premises equipment.

The final rule also reflects a significantly revamped organizational structure relative to the existing standards and guidelines. In sum, the final rule eliminates 36 CFR part 1193 (which formerly housed the existing 255 Guidelines) and substantially revises 36 CFR 1194 by replacing the existing 508 Standards with two regulatory provisions—§§ 1194.1 and 1194.2—that direct readers to the four appendices accompanying part 1194, which, in turn, set forth the scoping and technical requirements for the Revised 508 Standards and 255 Guidelines.

Appendix A provides general application and scoping for Section 508, while Appendix B does likewise for Section 255. Appendix C contains seven separate chapters setting forth the functional performance criteria and technical accessibility standards that apply to both 508-covered and 255-covered ICT. These chapters are, generally speaking, broken down by functional area (e.g., functional performance criteria, hardware, software, support documentation and services). Lastly, Appendix D republishes the existing 508 Standards, which, as discussed below, may be needed to evaluate Section 508-covered existing (legacy) ICT under the safe harbor provision.

In this preamble, the Board refers to provisions in the Revised 508 Standards and 255 Guidelines by their new section numbers under this final rule: E101– E103 (508 Chapter 1: Application and Administration); E201–E208 (508

Chapter 2: Scoping Requirements);

C101–C103 (255 Chapter 1: Application and Administration); C201–C206 (255 Chapter 2: Scoping Requirements); 301– 302 (Chapter 3: Functional Performance Criteria); 401–415 (Chapter 4:

Hardware); 501–504 (Chapter 5:

Software); 601–603 (Support Documentation and Services); and 701– 702 (Chapter 7: Referenced Standards).

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

1. Legal Authority for the Revised 508 Standards

Section 508 of the Rehabilitation Act of 1973 (hereafter, ‘‘Section 508’’), as amended, mandates that Federal agencies ‘‘develop, procure, maintain, or use’’ ICT in a manner that ensures Federal employees with disabilities have comparable access to, and use of, such information and data relative to other Federal employees, unless doing so would impose an undue burden. 29 U.S.C. 794d. Section 508 also requires Federal agencies to ensure that members of the public with disabilities have comparable access to publicly-available information and services unless doing so would impose an undue burden on the agency. Id. In accordance with section 508(a)(2)(A), the Access Board must publish standards that define electronic and information technology along with the technical and functional performance criteria necessary for accessibility, and periodically review and amend the standards as appropriate.

When the Board revises its existing 508 Standards (whether to keep up with technological changes or otherwise), Section 508 mandates that, within six months, both the Federal Acquisition Regulatory Council (FAR Council) and Federal agencies incorporate these revised standards into their respective acquisition regulations and procurement policies and directives. Thus, with respect to procurement-related matters, the Access Board’s 508 Standards are not self-enforcing; rather, these standards take legal effect when adopted by the FAR Council.

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2. Legal Authority for 255 Guidelines

Section 255 of the Communications Act (hereafter, ‘‘Section 255’’), requires telecommunications equipment and services to be accessible to, and usable by, individuals with disabilities, where readily achievable. 47 U.S.C. 255.

‘‘Readily achievable’’ is defined in the statute as ‘‘easily accomplishable and able to be carried out without much difficulty or expense.’’ Id. In determining whether an access feature is readily achievable, the Federal Communications Commission (FCC), which has exclusive implementation and enforcement authority under Section 255, has directed telecommunications equipment manufacturers and service providers to weigh the nature and cost of that feature against the individual company’s overall financial resources, taking into account such factors as the type, size, and nature of its business operation.

Section 255 tasks the Access Board, in conjunction with the FCC, with the development of guidelines for the accessibility of telecommunications equipment and customer premises equipment, as well as their periodic review and update. The FCC, however, has exclusive authority under Section 255 to issue implementing regulations and carry out enforcement activities.

Moreover, when issuing implementing regulations, the FCC is not bound to adopt the Access Board’s guidelines as its own or to use them as minimum requirements.

B. Summary of Key Provisions

The Revised 508 Standards and 255 Guidelines replace the current product-based regulatory approach with an approach based on ICT functions. The revised technical requirements, which are organized along the lines of ICT functionality, provide requirements to ensure that covered hardware, software, electronic content, and support documentation and services are accessible to people with disabilities. In addition, the revised requirements include functional performance criteria, which are outcome-based provisions that apply in two limited instances:

When the technical requirements do not address one or more features of ICT or when evaluation of an alternative design or technology is needed under equivalent facilitation.

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

1. New Regulatory Approach and Format

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

The new organizational format in the Revised 508 Standards and 255 Guidelines—which sets forth scoping and technical requirements in four appendices—is modeled after the regulatory approach first used Access Board’s 2004 Americans with Disabilities Act (ADA) and Architectural Barriers Act (ABA) Accessibility Guidelines. Appendix A applies only to Section 508-covered ICT and consists of 508 Chapter 1, which sets forth general application and administration provisions, while 508 Chapter 2 contains scoping requirements (which, in turn, prescribe which ICT—and, in some cases, how many—must comply with the technical specifications).

Appendix B, which applies to 255-covered ICT only, is organized similarly with 255 Chapter 1 setting forth general application and administration provisions and 255 Chapter 2 containing scoping requirements. Appendix C sets forth technical specifications that apply equally to ICT covered under Sections 508 or 255. Appendix C includes five chapters, each of which (with the exception of the final chapter) address a separate ICT functional area. These chapters are: Chapter 3: Functional Performance Criteria; Chapter 4:

Hardware; Chapter 5: Software; Chapter 6: Support Documentation and Services;

and Chapter 7: Referenced Standards.

Lastly, in Appendix D, the existing 508 Standards are republished in full (albeit with a revised section numbering system) for reference when evaluating Section 508-covered existing (legacy) ICT under the ‘‘safe harbor’’ provision.

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

2. Broad Application of Web Content Accessibility Guidelines 2.0

The Revised 508 Standards and 255 Guidelines incorporate by reference the Web Content Accessibility Guidelines (WCAG) 2.0, a globally-recognized and technologically-neutral set of accessibility guidelines for Web content.

For Section 508-covered ICT, all covered Web and non-Web content and software—including, for example, Web sites, intranets, word processing documents, portable document format documents, and project management software—is required, with a few specific exceptions, to conform to WCAG 2.0’s Level A and Level AA Success Criteria and Conformance Requirements. By applying a single set of requirements to Web sites, electronic documents, and software, the revised requirements adapt the existing 508 Standards to reflect the newer multifunction technologies (e.g., smartphones that have telecommunications functions, video cameras, and computer-like data processing capabilities) and address the accessibility challenges that these technologies pose for individuals with disabilities. For Section 255-covered ICT, electronic content and software that is integral to the use of telecommunications and customer premise equipment is required to conform to WCAG 2.0’s Level A and Level AA Success Criteria and Conformance Requirements. There are several exceptions related to non-Web documents and software.

3. Harmonization With International Standards

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

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Harmonization with international standards and guidelines creates a larger marketplace for accessibility solutions, thereby attracting more offerings and increasing the likelihood of commercial availability of accessible ICT options.

4. Delineation of Covered Electronic ‘‘Content’’

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

5. Expanded Interoperability Requirements

The existing standards require ICT to be compatible with assistive technology—that is, hardware or software that increases or maintains functional capabilities of individuals with disabilities (e.g., screen magnifiers or refreshable braille displays).

However, in the past the existing requirement resulted in ambiguity of application. For example, some agencies interpreted the provisions of existing 36 CFR 1194.21 (which addresses software applications and operating systems) as applicable to assistive technology itself.

The ensuing confusion led, in some cases, to unnecessary delay in procurements intended to provide reasonable accommodations to employees under Section 501, creating a hardship for both agencies and their employees with disabilities. The final rule provides more specificity about how operating systems, software development toolkits, and software applications should interact with assistive technology. The final rule also specifically exempts assistive technology from the interoperability provisions. The Board expects the final rule to improve software interoperability with assistive technology, allowing users better access to the functionalities that ICT products provide.

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

Federal agencies will have one year from publication of this final rule to comply with the Revised 508 Standards.

This extended period for compliance is responsive to some agencies’ concerns about the time it will take them to make ICT compliant with the Revised 508 Standards. In addition, the Revised 508 Standards include a ‘‘safe harbor’’ provision for existing (i.e., legacy) ICT.

Under this safe harbor, unaltered, existing ICT (including content) that complies with the existing 508 Standards need not be modified or upgraded to conform to the Revised 508 Standards. This safe harbor applies on an element-by-element basis in that each component or portion of existing ICT is assessed separately.

Corresponding definitions have also been added for ‘‘existing ICT’’ and ‘‘alteration.’’ By incorporating a safe harbor for legacy ICT into the Revised 508 Standards provision, the Board is being responsive to agencies’ concerns about the potential resources required to remediate existing ICT, including agency Web sites or other public-facing legacy documents. Notably, the extended compliance date and safe harbor provision apply only to Section 508-covered ICT; these provisions do not apply to telecommunications equipment and customer premises equipment covered by Section 255.

Since compliance with the Revised 255 Guidelines is not required unless and until they are adopted by the FCC, matters addressed in these two provisions fall within the commission’s province.

C. Summary of Final Regulatory Impact Analysis

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

To estimate likely incremental compliance costs attributable to the final rule, the Final RIA estimates, quantifies, and monetizes costs in the following broad areas: (1) Costs to Federal agencies and contractors related to policy development, employee training, development of accessible ICT, evaluation of ICT, and creation of accessible electronic documents; (2) costs to Federal agencies of ensuring that speech-output enabled hardware with closed functionality has braille instructions (e.g., small braille label or sign) indicating how to initiate the speech mode of operation; and (3) costs to manufacturers of telecommunications equipment and customer premises equipment of ensuring that their respective Web sites and electronic support documentation conform to accessibility standards, including

WCAG 2.0.

On the benefits side, the Final RIA estimates likely incremental benefits by monetizing the value of three categories of benefits expected to accrue from the Revised 508 Standards: (a) Increased productivity of Federal employees with certain disabilities who are expected to benefit from improved ICT accessibility;

(b) time saved by members of the public with certain disabilities when using more accessible Federal Web sites; and

(c) reduced phone calls to Federal agencies as members of the public with certain disabilities shift their inquiries and transactions online due to improved accessibility of Federal Web sites. The Final RIA, for analytical purposes, defines the beneficiary population as persons with vision, hearing, speech, learning, and intellectual disabilities, as well as those with manipulation, reach, or strength limitations. The Final RIA does not formally quantify or monetize benefits accruing from the Revised 255 Guidelines due to insufficient data and methodological constraints.

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

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

TABLE 1—ANNUALIZED VALUE OF MONETIZED BENEFITS AND COSTS UNDER THE FINAL RULE, 2018–2027 [In 2017 dollars]

Type of benefits or costs Scenario 7%

Discount rate (in millions)

3% Discount rate (in millions)

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

Low Net Benefit Scenario Expected Scenario

$32.0 72.4

$34.0 77.0

High Net Benefit Scenario ............ 187.4 199.0 Monetized incremental costs to Federal agencies (under Revised 508 Standards) .................... Low Net Benefit Scenario ............. 276.2 287.4

Expected Scenario ........................ 172.8 181.1 High Net Benefit Scenario ............ 111.5 117.2

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

Low Net Benefit Scenario Expected Scenario

9.5 9.5

9.6 9.6

High Net Benefit Scenario ............ 9.5 9.6

While the Final RIA monetizes likely incremental benefits and costs attributable to the final rule, this represents only part of the regulatory picture. Today, though ICT is now woven into the very fabric of everyday life, millions of Americans with disabilities often find themselves unable to use—or use effectively—computers, mobile devices, Federal agency Web sites, or electronic content. The Board’s existing standards and guidelines are greatly in need of a ‘‘refresh’’ to keep up with technological changes over the past fifteen years. The Board expects this final rule to be a major step toward ensuring that ICT is more accessible to and usable by individuals with disabilities—both in the Federal workplace and society generally.

Indeed, much—if not most—of the significant benefits expected to accrue from the final rule are difficult, if not impossible, to quantify, including:

Greater social equality, human dignity, and fairness. Each of these values is explicitly recognized by Executive Order 13563 as important qualitative considerations in regulatory analyses.

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

It is also equally important to note that some potentially substantial incremental costs arising from the final rule are not evaluated in the Final RIA, either because such costs could not be quantified or monetized (due to lack of data or for other methodological reasons) or are inherently qualitative.

For example, due to lack of information, the Final RIA does not assess the cost impact of new or revised requirements in the Revised 255 Guidelines on computer and telecommunications equipment manufacturers. A more in-depth discussion of the Final RIA can be found in Section V.A (Regulatory Process Matters—Final Regulatory Impact Analysis).

II. Rulemaking History

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

The Access Board issued the existing 255 Guidelines for telecommunications equipment and customer premises equipment in 1998.

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

The existing 508 Standards require Federal agencies to ensure that persons with disabilities—namely, Federal employees with disabilities and members of the public with disabilities—have comparable access to, and use of, electronic and information technology (regardless of the type of medium) absent a showing of undue burden. 36 CFR part 1194. Among other things, these standards: Define key terms (such as ‘‘electronic and information technology’’ and ‘‘undue burden’’); establish technical requirements and functional performance criteria for covered electronic and information technologies;

require agencies to document undue burden determinations when procuring covered products; and mandate accessibility of support documentation and services. Generally speaking, the existing 508 Standards take a product-based regulatory approach in that technical requirements for electronic and information technology are grouped by product type: Software applications and operating systems; Web-based intranet and Internet information and applications; telecommunications products; self-contained, closed products; and desktop and portable computers.

The existing 255 Guidelines require manufacturers of telecommunications equipment and customer premises equipment to ensure that new and substantially upgraded existing equipment is accessible to, and usable by, individuals with disabilities when readily achievable. 36 CFR part 1193.

The existing guidelines, as with the 508 Standards, define key terms (such as ‘‘telecommunications equipment’’ and ‘‘readily achievable’’) and establish technical requirements for covered equipment, software, and support documentation. These guidelines also require manufacturers of covered equipment to consider inclusion of individuals with disabilities in their respective processes for product design, testing, trials, or market research.

B. TEITAC Advisory Committee (2006– 2008)

In the years following our initial promulgation of the existing 508

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Standards and 255 Guidelines, technology has continued to evolve at a rapid pace. Pursuant to our statutory mandate, the Access Board deemed it necessary and appropriate to review and update the existing 508 Standards and 255 Guidelines in order to make them consistent with one another and reflective of technological changes. In 2006, the Board formed the Telecommunications and Electronic and Information Technology Advisory Committee (hereafter, ‘‘TEITAC Advisory Committee’’) to assist in the process of revising and updating the existing 508 Standards and 255 Guidelines. See Notice of Establishment, 71 FR 38324 (July 6, 2006). The TEITAC Advisory Committee’s 41 members comprised a broad cross-section of stakeholders representing industry, disability groups, and Government agencies. This Advisory Committee also included international representatives from the European Commission, Canada, Australia, and Japan. The TEITAC Advisory Committee recognized the importance of standardization across markets worldwide and coordinated its work with standard-setting bodies in the U.S.

and abroad, such as the World Wide Web Consortium (W3C®), and with the European Commission. The TEITAC Advisory Committee addressed a range of issues, including new or convergent technologies, market forces, and international harmonization.

In April 2008, the TEITAC Advisory Committee issued its final report to the Access Board (hereafter, ‘‘TEITAC Report’’). See Advisory Committee Report, U.S. Access Board (Apr. 2008), http://www.access-board.gov/teitac-report (last accessed Aug. 23, 2016).

This TEITAC Report provided a set of recommended updates to the existing 508 Standards and 255 Guidelines, which, the committee noted, were intended to balance two competing considerations: The need for clear and specific standards that facilitate compliance, and the recognition that static standards ‘‘consisting of design specification[s] and fixed checklists’’ would tend to ‘‘stifle innovation’’ and ‘‘delay the availability of technology advancements to people with disabilities.’’ Id. at Section 1. To address these considerations, the TEITAC Advisory Committee recommended that the Access Board jettison its existing product-based regulatory approach in favor of technical requirements to achieve accessibility based on ICT functions or features. Id. The Committee also noted the importance of harmonizing with international standards to both spur development of accessible ICT products and reduce manufacturers’ costs in the global market. Id. at Sections 4 & 4.3. To that end, the Committee worked to harmonize its recommendations with the then-draft WCAG 2.0. Id. at Sections

4.3 & 8.2. All told, the TEITAC Report provided a comprehensive recommended set of technical requirements applicable to a broad range of ICT functions and features, including: Closed functionality;

hardware with and without speech output; user interfaces; electronic content; processing and display of captions and audio description; RTT;

authoring tools; and, product support documentation and services.

C. First Advance Notice of Proposed Rulemaking (2010)

1. General Following publication of the TEITAC

Report, the Access Board worked to develop a proposed rule that would ‘‘refresh’’ the existing its existing 508 Standards and 255 Guidelines. In March 2010, we issued an Advance Notice of Proposed Rulemaking (2010 ANPRM) inviting public comment on an initial set of draft revisions to the standards and guidelines. See Advance Notice of Proposed Rulemaking, 75 FR 13457 (proposed Mar. 22, 2010); see also Draft Information and Communication Technology (ICT) Standards and Guidelines, U.S. Access Board, https:// www.access-board.gov/guidelines-and-standards/communications-and-it/ about-the-ict-refresh/background/draft-rule-2010 (last accessed Aug. 23, 2016).

In sum, the 2010 ANPRM proposed a set of accessibility requirements that largely tracked the TEITAC Report’s recommendations. While the majority of the proposed requirements in the draft rule were not substantively changed from the existing 508 Standards and 255 Guidelines, there were some notable proposed substantive revisions. Two of the most significant were the proposals to require that Federal agencies make electronic content of specified official communications accessible, and to harmonize with WCAG 2.0 by restating the Level AA Success Criteria and Conformance Requirements in regulatory (mandatory) terms in the draft rule. Additionally, the 2010 ANPRM—in keeping with the TEITAC Report—also sought to substantially update the structure and organization of the existing regulations. In the draft rule, the proposed standards and guidelines shared a common set of functional performance criteria (Chapter

2) and technical design criteria

(Chapters 3–10), but had separate introductory chapters (Chapters 1 and 2), which outlined the respective scoping, application, and definitions for the revised 508 Standards and 255 Guidelines.

2. Public Hearings and Comments

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

In general, commenters agreed with our approach to addressing the accessibility of ICT through functionality rather than discrete product types. Commenters also expressed strong support for our efforts to update the existing 508 Standards and 255 Guidelines, as well as our decision to follow the TEITAC Advisory Committee’s recommendation to require harmonization with WCAG 2.0.

However, many commenters expressed concern that the 2010 ANPRM was not user-friendly, e.g., that it was too long (at close to 100 pages), organized in a confusing manner, and suffered from some internal inconsistencies. For example, commenters noted confusion by virtue of the fact that some chapters focused on functional features of accessibility while others addressed specific types of technology, or that the meaning of ‘‘ICT’’ seemed to vary depending on the context of the specific chapter. Other commenters opined that deviations from WCAG 2.0 phrasing in the draft rule created ambiguities, particularly for those well familiar with

WCAG 2.0.

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

1. General

By the following year, in 2011, the Access Board was poised to invite public comment on a revised version of the draft rule. The Board acknowledged that, based on comments to the 2010 ANPRM, the draft rule needed to be reorganized and made more concise.

More importantly, we needed to obtain further comment on major issues and harmonize with the European Commission’s ICT standardization

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See Advance Notice of Proposed Rulemaking, 76 FR 76640 (proposed Dec. 8, 2011); Draft Updated Standards and Guidelines (2011), U.S. Access Board, https://www.access-board.gov/ guidelines-and-standards/ communications-and-it/about-the-ict-refresh/draft-rule-2011.

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

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

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

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

2011 ANPRM, 76 FR at 76642.

2. Public Hearings and Comments Hearings were held in January 2012 in

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

In general, commenters continued to agree with our approach to address ICT accessibility by focusing on features, rather than discrete product types.

Commenters supported the conciseness of the proposed provisions in the 2011 ANPRM, and asked for further streamlining where possible.

Commenters also generally voiced strong support for the Board’s decision to incorporate by reference WCAG 2.0 and apply it to all types of covered ICT;

several commenters did, however, question the propriety of applying WCAG 2.0 to non-Web ICT.

E. Notice of Proposed Rulemaking (2015

NPRM)

1. General

In 2015, the Access Board formally commenced the rulemaking process by issuing a notice of proposed rulemaking to update the existing 508 Standards and 255 Guidelines. See Notice of Proposed Rulemaking; Information and Communication Technology Standards and Guidelines, 80 FR 10879 (proposed Feb. 27, 2015) (hereinafter, NPRM). This proposed rule—while making editorial changes and other updates in response to comments on the 2011 ANPRM— retained the same overall structure and approach to referencing WCAG 2.0.

2. Hearings and Comments

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

Overall, we received about 160 comments in response to the NPRM, including written comments and oral testimony from witnesses at the three public hearings. These commenters represented, when excluding multiple submissions, about 140 different entities or individuals. By general category, these NPRM commenters can be broken down as follows: Individuals (59);

disability advocacy organizations (59);

ICT companies (10); accessible ICT services providers (11); trade associations representing ITC and telecommunications companies (11);

individuals or groups identifying themselves as ICT subject matter experts (13); academicians (6); state or local governmental agencies (7); standards development organizations (3);

international disability advocacy organizations (9); and, anonymous (4).

In general, commenters spoke positively about the proposed rule, and noted that it was much improved from earlier iterations in the 2010 and 2011 ANPRMs. By a wide margin, the single most commented-upon aspect of the proposed rule (and the issue on which commenters expressed the greatest unanimity) was timing. Characterizing refresh of the 508 Standards and 255 Guidelines as ‘‘long overdue,’’ these commenters urged the Access Board to issue its final rule as expeditiously as possible. On substantive matters, a large number of commenters addressed some aspect of the requirements for electronic content, with the bulk of these comments relating to Section 508-covered content. Another technical area receiving sizeable comment was our proposal that, under both Sections 508 and 255, WCAG 2.0 and PDF/UA–1 serve as the referenced technical standards for accessibility of electronic content, hardware, software, and support documentation and services.

Additionally, real-time text (RTT) was a subject of great interest to NPRM commenters, with most commenters representing disability advocacy organizations and academicians supporting the Board’s RTT proposal, while ITC manufacturers and trade groups expressed opposition. Further, the issue of harmonization with EN 301 549 received considerable comment. In general, ITC industry-related commenters urged the Board to harmonize more closely with this European specification. Disability advocacy organizations and consumer-related commenters, on the other hand, viewed the proposed rule and EN 301 549 as well harmonized already and expressed concern that further harmonization would be improvident because, in their view, EN 301 549 set forth weaker accessibility requirements in some areas.

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

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5796 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations

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

CENELEC, EN 301 549 V1.1.2 (2015–04),

Accessibility Requirements Suitable for Public Procurement of ICT Products and Services in Europe (Apr. 2015), available at http:// www.etsi.org/deliver/etsi_en/301500_301599/ 301549/01.01.02_60/en_301549v010102p.pdf.

individuals with electromagnetic sensitivities, and notes that electromagnetic sensitivities may be considered a disability under the ADA if the sensitivity so severely impairs the neurological, respiratory, or other functions of an individual that it substantially limits one or more of the individual’s major life activities.

However, most of the accommodations suggested by these commenters are beyond the scope of this rulemaking or our statutory jurisdiction. Moreover, none of our prior rulemaking notices (i.e., 2010 ANPRM, 2011 ANPRM, and NPRM) proposed technical specifications relating to electromagnetic sensitivities. Thus, were the Board to address electromagnetic sensitivity issues posed by ITC, this complex area would require thorough research and notice-and-comment rulemaking before being addressed through rulemaking.

F. Harmonization With European Activities

1. History While the Access Board was in the process of updating its existing 508 Standards and 255 Guidelines, a similar process began in Europe to create the first European set of ICT accessibility standards. As a result of the 2005 EU– US Economic Initiative, the Access Board and the European Commission began to work closely on the issue of Information and Communication Technology standards. See, e.g., European Comm., Implementation of the Economic Initiative of the June 2005 EU–US Summit: Joint EU–US Work Programme (Nov. 2005), available at http://trade.ec.europa.eu/doclib/docs/ 2006/june/tradoc_127643.pdf.

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

See European Comm., M 376— Standardisation Mandate to CEN, CENELEC, and ETSI in Support of

European Accessibility Requirements for Public Procurement of Products and Services in the ICT Domain (Dec. 7, 2005), available at http://www.etsi.org/ WebSite/document/aboutETSI/EC_ Mandates/m376en.pdf. Specifically, Mandate 376 requested that the three European standards setting bodies— European Committee for Standardization (CEN), European Committee for Electrotechnical Standardization (CENELEC) and the European Telecommunications Standards Institute (ETSI)—perform two main tasks: Development of a set of functional European accessibility requirements for public procurement of ICT products and services; and creation of an electronic toolkit for use by public procurers.

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

CEN/CENELEC, EN 301 549 V1.1.1

(2014–02), Accessibility Requirements Suitable for Public Procurement of ICT Products and Services in Europe (Feb.

2014), available at http://www.etsi.org/ deliver/etsi_en/301500_301599/301549/ 01.01.01_60/en_301549v010101p.pdf.1 The functional accessibility requirements specified in EN 301 549 are ‘‘closely harmonized’’ with the then-current draft revisions Section 508 Standards (i.e., the 2011 ANPRM).

Accessible ICT Procurement Toolkit— Frequently Asked Questions, Mandate 376, http://mandate376.standards.eu/ frequently-asked-questions#difference (last accessed Aug. 23, 2016). Unlike the 508 Standards, however, EN 301 549— by its own terms—establishes only non-binding, voluntary accessibility requirements for public ICT procurements. Id.

In October 2016, the European Parliament and Council of the European Union issued Directive 2016/2102, which generally requires EU member states to ‘‘ensure that public sector bodies take the necessary measures to make their Web sites and mobile applications more accessible [to persons with disabilities] by making them perceivable, operable, understandable and robust.’’ Directive 2016/2102 on the Accessibility of the Web sites and Mobile Applications of Public Sector Bodies, Article 4 (Oct. 26, 2016), available at http://eur-lex.europa.eu/ legal-content/EN/TXT/HTML/?uri= CELEX:32016L2102&from=EN. Directive 2016/2102 further provides that, as a general matter, EN 301 549 V1.1.2 (2015–04) serves as the relevant accessibility standard absent future adoption of technical standards or publication of references to harmonized standards by the European Commission.

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

2. Comparison of Final Rule With EN 301 549

In the final rule, the Board has made multiple changes that are similar…