36 CFR Part 1194 - Information and Communication Technology (ICT) Final Standards and Guidelines Jan. 2018 Amendments - Preamble

Corrections to the Information and Communication Technology (ICT) Final Standards and Guidelines

Legal Authority

Section 508 of the Rehabilitation Act of 1973 (hereafter, “Section 508”), as amended, mandates that Federal agencies “develop, procure, maintain, or use” information and communication technology (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 data unless doing so would impose an undue burden on the agency. Id. The Access Board is charged with developing and maintaining standards that establish technical and functional performance criteria for ICT accessibility. 29 U.S.C. 794d(a)(2)(A), (B).

Section 255 of the Communications Act of 1934 (hereafter, “Section 255”), as amended, 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. Section 255 tasks the Access Board, in conjunction with the Federal Communications Commission (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 their enforcement. Id. Section 255(f).

Purpose of Direct Final Rule

On January 18, 2017, the Access Board published a final rule in the Federal Register (82 FR 5790) (hereafter, “ICT Final Rule”), which revised and updated – in a single rulemaking – the standards for Section 508-covered ICT developed, procured, maintained, or used by Federal agencies (hereafter, “508 Standards”), as well as the guidelines for telecommunications equipment and customer premises equipment covered by Section 255 (hereafter, “255 Guidelines”). Because nearly two decades had passed since the original issuance of our then-existing 508 Standards and 255 Guidelines, the ICT Final Rule was aimed at “refreshing” these regulations by, among other things, addressing changing technology and harmonizing with ICT accessibility standards that had been developed worldwide in recent years.

Subsequently, we discovered several small drafting errors in the ICT Final Rule. These errors included a few typographical errors and the inadvertent deletion of then-existing provisions that require telecommunications products and systems with two-way voice communication capabilities to also provide TTY compatibility and functionality. By this rule, the Access Board corrects these typographical errors and restores mistakenly deleted TTY requirements for ICT with two-way voice communication, albeit with slightly updated organization and wording (with no change in substance) for consistency with the ICT Final Rule.

The Access Board is publishing this direct final rule without prior notice and comment. The Administrative Procedure Act permits agencies to publish final rules without prior notice and comment when, for good cause, they determine such procedures are unnecessary. See 5 U.S.C. 553(b)(B). We view the minor, technical corrections in this rule as noncontroversial and do not anticipate adverse comment. Moreover, the public interest is best served by having these corrections without delay to prevent confusion concerning these errors in the ICT Final Rule and ensure that there are no gaps in accessibility requirements for ICT covered by Sections 508 or 255. Accordingly, there is good cause for waiver of prior notice and comment.

This direct final rule will take effect on the specified effective date, without further action, unless the Access Board receives adverse comment within the comment period. We consider an adverse comment to be a comment that challenges the propriety of the rule or asserts that it would be ineffective or unacceptable without material change. If the Access Board receives timely adverse comment, we will publish a notification in the Federal Register announcing full or partial withdrawal of this rule. If an adverse comment applies only to one part of this direct final rule, and it is possible to withdraw that part without defeating the purpose of the remaining parts of the rule, we may adopt, as final, those parts of this rule that received no adverse comment. Should the Access Board withdraw this rule due to adverse comment (in whole in part), we may subsequently incorporate such comment(s) into another direct final rule or publish a notice of proposed rulemaking.

Discussion of Changes

A. Administrative Corrections

This direct final rule remedies two typographical errors on the ICT Final Rule.  First,the table of contents for appendix A to part 1194 (Section 508 of the Rehabilitation Act: Application and Scoping Requirements) incorrectly lists the title of E205 as “Content.”  The correct title for this section is “Electronic Content.”  In this rule, we correct this error by inserting the word “Electronic” before “Content” in the table of contents entry for E205 in appendix A.  Second, also in appendix A to part 1194, there is a mistaken cross-reference in E202.6, Undue Burden or Fundamental Alteration.  E202.6 currently reads, in pertinent part: “Where an agency determines in accordance with E202.5 that conformance to requirements in the Revised 508 Standards would impose an undue burden of would result in a fundamental alternation in the nature of the ICT …” (emphasis added). This text should instead refer to E202.6.  This direct final rule revises the cross-reference in the first sentence of E202.6 from “E202.5” to “E202.6.”

B. Restoration of TTY-Related Accessibility Requirements

1. Background

The second set of corrections in this direct final rule restores the TTY-related accessibility requirements for ICT with two-way voice communication to the Access Board’s 508 Standards and 255 Guidelines. As noted, when the Access Board published the ICT Final Rule in January 2017, ICT with two-way voice communication had long been required to ensure TTY compatibility and functionality. However, as discussed below, a drafting error resulted in these TTY-related accessibility requirements being mistakenly removed from the ICT Final Rule. This direct final rule restores these original TTY-related requirements to the Board’s 508 Standards and 255 Guidelines, albeit with minor, non-substantive changes to better align them with the revised organization and language in the ICT Final Rule.

Both the original 508 Standards (issued in 2000) and 255 Guidelines (issued in 1998) required telecommunications products and services with two-way voice communication to provide certain TTY-related features, including a connection point for TTY (e.g., RJ-11 connector), a microphone capable of being turned on and off to allow a user to intermix speech and TTY use, and support for cross-manufacturer, non-proprietary standard TTY signal protocols (e.g., Baudot). See, e.g., Electronic and Information Technology Accessibility Standards - Final Rule, 65 FR 80500 (Dec. 21, 2000); Telecommunications Act Accessibility Guidelines – Final Rule, 63 FR 5608 (Feb. 3, 1998); see also 36 CFR part 1194 (2017), appendix D, section D1194.23(a)-(e) (reprinting original 508 Standards published in 2000 as appendix to revised regulations). TTYs (e.g., teletypewriters) – which were developed in the 1970s – allow persons with hearing- or speech-related disabilities to send and receive text communications over telephone networks.

In recent years, however, other text-based means of communication have emerged, including simple message service (SMS or text messages) and real-time text (RTT) technology. RTT technology permits the transmission of text in near real-time as each character is typed. SMS messages are not transmitted until the user issues a send function (usually by hitting the “enter” key). Like SMS, TTY technology has a significant disadvantage as compared to RTT – namely, to avoid scrambling messages, users must send completed messages on a turn-by-turn basis. This ability to send text transmissions instantly and simultaneously permits more conversational, interactive text-based communications that are akin to telephone conversations, as well as facilitating better communication during emergency situations. As a newer (digital) technology, RTT is directly compatible with wireless and Internet protocol-based networks, whereas TTY, as an analog technology, is not. TTY signals have acoustic characteristics that cause them to be corrupted and become unusable with the typical digitization algorithms used for transmitting voice over wireless and IP-based networks.

By early 2015, when the Access Board published the notice of proposed rulemaking to “refresh” the 508 Standards and 255 Guidelines, RTT technology had matured sufficiently for the Board to propose that RTT supplant TTY as the form of text-based functionality required for ICT with two-way voice communication. See Notice of Proposed Rulemaking - Information and Communication Technology Standards and Guidelines, 80 FR 10880, 10900 – 10901, 10909 & 10910 (Feb. 27, 2015) (hereafter, “ICT NPRM”). Most comments received in response to the ICT NPRM were supportive of the Access Board’s RTT proposal, though some expressed differing views on the appropriate technical standard for RTT interoperability with certain systems (such as Voice over Internet Protocol or “VoIP” systems).

In May 2016, about one year after the ICT NPRM comment period had closed, the FCC initiated a proceeding (at the behest of several telecommunications companies) to update its accessibility rules to allow telecommunications providers and manufacturers to support RTT in lieu of TTY technology in IP-based telecommunication environments. See Transition from TTY to Real-Time Text Technology – Notice of Proposed Rulemaking, 81 FR 33170 (May 25, 2016).

In deference to the FCC’s ongoing rulemaking efforts on a regulatory transition from TTY to RTT technology, the Access Board elected to postpone adoption of RTT-related accessibility requirements in the ICT Final Rule. See 82 FR at 5800. Consequently, we removed the proposed requirements for RTT functionality from Chapter 4 of the final rule, and simply reserved section 412.5 in the final rule for future use should the Board subsequently promulgate RTT-related requirements. See 36 CFR part 1194, appendix C, section 412.5.

By reserving adoption of RTT-related requirements, the Access Board did not thereby intend to leave a “gap” in accessibility requirements to ensure that persons with communication disabilities can use telephone networks. In other words, with the removal and reservation of RTT-related requirements, the TTY-related requirements in the original 508 Standards and 255 Guidelines should have been incorporated into the ICT Final Rule. However, due to a drafting oversight, these existing TTY requirements did not get incorporated into the final rule. As a result, the ICT Final Rule is presently – and unintentionally – silent with respect to TTY functionality requirements for ICT with two-way voice communication.

In this direct final rule, the Access Board restores the TTY-related requirements from the original 508 Standards and 255 Guidelines to ensure that, during the pendency of further rulemaking on RTT-related accessibility requirements, persons with communications disabilities will still be able to send and receive text-based communications over telephone networks.

Under the ICT Final Rule, Federal agencies were afforded one year from rule publication (i.e., Jan. 18, 2018) to comply with the revised 508 Standards. 82 FR at 5790, 5792 & 5821. The Access Board seeks to restore TTY-related requirements to the 508 Standards prior to this compliance date. The Board is not aware of any Federal agency having relied on the mistaken omission of TTY-related requirements from the ICT Final Rule as authorization to reduce or eliminate TTY functionality on their ICT with two-way voice communication.

2. Amended TTY Requirements

As discussed in the preamble to the ICT Final Rule, the revised 508 Standards and 255 Guidelines feature significantly revamped organizational format and wording relative to their predecessor standards and guidelines. See 82 FR at 5790 - 91. The TTY-related accessibility requirements from the original 508 Standards and 255 Guidelines thus could not simply be reinserted into the revised standards and guidelines using their original wording and section numbering. Consequently, in this direct final rule, the TTY-related requirements from the original 508 Standards and 255 Guidelines have been modestly revised – in minor, non-substantive ways – so that they conform to the updated formatting and terminology used in the ICT Final Rule.

In summary, this direct final rule incorporates the original TTY-related requirements into the revised 508 Standards and 255 Guidelines as follows. The technical specifications for TTY functionality appear as a new subsection (412.8) to the section that collectively sets forth the technical requirements applicable to ICT with two-way voice communication. We retained the original wording of these reinstated TTY-related requirements to the greatest extent possible; some minor, non-substantive wording changes were needed for consistency with updated terminology used in the ICT Final Rule. Additionally, in the scoping provision for hardware covered by the 255 Guidelines (C204.1), a companion exception has been added that exempts 255-covered hardware from the accessibility requirements in new 412.8.3. This exception mirrors the existing scope of coverage under the original 255 Guidelines. Unlike the original 508 Standards, the original 255 Guidelines do not require the features addressed in 412.8.3 – namely, voice mail, auto-attendant, and interactive voice response telecommunications systems – to provide TTY functionality. Compare, e.g., 36 CFR 1193.51(d) (2016) (TTY-related compatibility requirements in original 255 Guidelines) with 36 CFR 1194.23(c), (e) (2016) (specifying, in original 508 Standards, that telecommunications systems for voice mail, auto-attendant, interactive voice response, and caller identification must be compatible with TTYs). Lastly, in consideration of technological advances, we have clarified that the requirements for TTY compatibility (412.8) cover software that provides TTY functionality, as well as stand-alone TTY devices and other hardware.

In Table 1 below, we provide a “cross-walk” that lists the TTY-related provisions added by the direct final rule and identifies their corresponding provisions in the original 508 Standards and 255 Guidelines.

Table 1 - Crosswalk of TTY Provisions in the Direct Final Rule and their Corresponding Provisions in the Original 508 Standards and 255 Guidelines

Regulatory Process Matters

A. Regulatory Planning and Review (Executive Orders 12866 and 13563)

The Access Board has examined the impact of this direct final rule under Executive Orders 12866 and 13563. These executive orders direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rule does not impose any incremental costs or benefits because it makes minor administrative corrections and, on the one substantive matter, merely retains (restores) existing TTY-related requirements for ICT with two-way voice communication that have been in place for nearly two decades. As such, this direct final rule is not a significant regulatory action for purposes of section 3(f) of Executive Order 12866.

Additionally, because this direct final rule is a non-significant regulatory action that imposes no costs, it is also exempt from the requirements outlined in Executive Order 13771. See Exec. Order. 13771, 82 FR 9339 (Feb. 3, 2017); OMB, M-17-21, Guidance Implementing Executive Order 13771, Titled "Reducing Regulation and Controlling Regulatory Costs" (April 5, 2017).

B. Congressional Review Act

This direct final rule is not a major rule within the meaning of the Congressional Review Act (5 U.S.C. 801 et seq.).

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) requires Federal agencies to analyze regulatory options that may assist in minimizing any significant impact of a rule on small businesses and small governmental jurisdictions. See 5 U.S.C. 604, 605(b). Because this direct final rule merely remedies several inadvertent drafting errors in the ICT Final Rule, including the unintentional deletion of longstanding TTY-related accessibility requirements, the Access Board certifies that the rule will not have a significant economic impact on a substantial number of small entities.

D. Federalism (Executive Order 13132)

The Access Board has analyzed this direct final rule in accordance with the principles and criteria set forth in Executive Order 13132. The Board has determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.

E. Paperwork Reduction Act

This direct final rule does not contain any new collections of information or recordkeeping requirements that require OMB approval under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

F. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (codified at 2 U.S.C. 1531 et seq.) (“UMRA”) generally requires that Federal agencies assess the effects of their discretionary regulatory actions that may result in the expenditure of $100 million (adjusted for inflation) or more in any one year by the private sector, or by state, local, and tribal governments in the aggregate. Because this direct final rule is being issued under the good cause exception in the Administrative Procedure Act section 553(b)(B), UMRA’s analytical requirements are inapplicable. See 2 U.S.C. 1532(a).

List of Subjects

36 CFR Part 1194

Civil rights, Communications, Communications equipment, Computer technology, Electronic products, Government employees, Government procurement, Incorporation by reference, Individuals with disabilities, Reporting and recordkeeping requirements, Telecommunications.