36 CFR Part 1194 - Proposed Information and Communication Technology (ICT) Standards and Guidelines NPRM - Preamble

2. Treatment of WCAG 2.0

The Access Board and the World Wide Web Consortium (W3C)—the leading international standards organization for the World Wide Web—share a rich history of collaboration on guidelines for website accessibility. The existing 508 Standards and WCAG 1.0 were under development around the same time period in the late 1990s; WCAG 1.0 was finalized in May 1999, and the existing 508 Standards shortly thereafter in December 2000. The existing 508 Standards, § 1194.22—which addresses “Web-based Intranet and Internet Information and Applications”—has two endnotes, the first of which notes the Board’s view that eleven out of our sixteen provisions of the standards are consistent with Web Content Accessibility Guidelines (WCAG) 1.0 Priority 1 Checkpoints. The remaining five provisions in that section do not have close analogs to WCAG 1.0 Priority 1 checkpoints, but they strongly influenced the development of the next iteration of WCAG, WCAG 2.0.

As part of the 508 Standards refresh, the Advisory Committee recommended—and the Access Board agreed—that closer harmonization with WCAG 2.0 was necessary to promote greater accessibility. Consequently, in the 2010 ANPRM, the Board proposed to include most Level A and Level AA WCAG 2.0 Success Criteria. However, rather than using the text of relevant portions of WCAG 2.0 verbatim, the Board restated those Success Criteria in mandatory language thought to be better suited for a regulatory environment. Comments to the 2010 ANPRM identified three major problems with that approach. First, many expressed concern that rephrasing WCAG 2.0’s Success Criteria would introduce discrepancies in, and fragmentation of, the 508 Standards. Second, other commenters feared that rephrasing of success criteria, rather than incorporating WCAG 2.0 by reference, would make dynamic linkages in the online version of WCAG 2.0 to important supplementary information less available to the reader. These commenters emphasized the usefulness of the online in-context hypertext links to robust guidance materials as aids for understanding and applying the WCAG 2.0 Success Criteria. Lastly, commenters found our division of provisions (including the many rephrased WCAG Success Criteria) into those respectively oriented towards either documents or software to be somewhat arbitrary and counterproductive.

In response to these comments, the Access Board substantially revised the approach to WCAG 2.0 in the 2011 ANPRM. We proposed to require all covered content to conform to WCAG 2.0, which would be incorporated by reference in the proposed 508 Standards.

Commenters 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, rather than simply seeking harmonization between WCAG 2.0 and the proposed rule. While commenters expressed concern as to how closely WCAG 2.0 would apply to some types of content, they generally supported the concept of expanding the application of WCAG 2.0 to all types of Web and non-Web ICT. A few commenters, including representatives of the software industry, also suggested that the rule allow for compliance with any subsequent and, as yet unpublished, revisions to WCAG 2.0 by the W3C.

Some commenters, on the other hand, requested that the Board return to its previous approach in the 2010 ANPRM, rather than incorporate WCAG 2.0 by reference. Most of these commenters believed that this approach would make the Board’s rule easier to use because the necessary text would be contained in a single document. Some of these commenters also asserted that the structure of WCAG 2.0 is confusing and makes it difficult to separate the normative and non-normative portions.

In this NPRM, the Board is retaining the Level A and Level AA Success Criteria and Conformance Requirements in WCAG 2.0 for all ICT subject to Sections 508 and 255, including documents and software. The Board also proposes, as in the 2011 ANPRM, to incorporate WCAG 2.0 by reference, rather than restating its requirements in the proposed rule. Incorporating the WCAG Success Criteria verbatim in the rule would be unhelpful because they are best understood within the context of the original source materials. WCAG 2.0 incorporates context-sensitive hypertext links to supporting advisory materials. The two core linked resources are Understanding WCAG 2.0 and Techniques for WCAG 2.0. The first provides background information, including discussion of the intention behind each of the success criteria. The second provides model sample code for conformance. The linked expository of documents, which is publicly available online free of charge, comprise a rich and informative source of detailed technical assistance and are updated regularly by standing working committees. These linked resources are not themselves requirements and agencies adopting WCAG 2.0 are not bound by them.

The Board cannot accept the suggestion of software industry representatives that the proposed rule permit compliance with any follow-on versions of WCAG 2.0. Federal agencies cannot “dynamically” incorporate by reference future editions of consensus standards.¹ Such action is legally prohibited since it would, among other things, unlawfully delegate the government’s regulatory authority to standards development organizations, as well as bypass rulemaking requirements (which would typically include a public notice‐and‐comment period). Federal agencies are required to identify the particular version of consensus standards incorporated by reference in a regulation. When an updated edition of a consensus standard is published, the agency must revise its regulation if it seeks to incorporate any of the new material. Nevertheless, the Access Board plans to remain abreast of updates to voluntary consensus standards bearing on ICT, and will consider incorporating them into future rulemakings, as appropriate.

We discuss incorporation of WCAG 2.0 in further detail below in Section V.B (Major Issues – WCAG 2.0 Incorporation by Reference), Section VI.B (Section-by-Section Analysis – 508 Standards: Application and Scoping – E205 and E207.2), and Section VI.C (Section-by-Section Analysis – 255 Guidelines: Application and Scoping - C203 and C205.2).