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

II. Executive Summary

PURPOSE AND LEGAL AUTHORITY

We are proposing to update our 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”). Since the guidelines and standards were issued in 2000 and 1998 respectively, there has been a technological revolution, accompanied by an ever-expanding use of technology and a proliferation of accessibility standards globally. Technological advances have resulted in the widespread use of multifunction devices that call into question the ongoing utility of the product-by-product approach used in the Access Board’s existing 508 Standards and 255 Guidelines. For example, since the existing 508 Standards were issued in 2000, mobile phones moved from devices with voice-only capability, to so-called “smartphones” offering voice, text, and video communications. Desktop computers are no longer the only information processing hardware: mobile devices and tablets, which have very different input and output characteristics, can typically process vast amounts of electronic information and function like desktop computers or telephones. In recognition of these converging technologies, one of the primary purposes of the proposed 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 electronic and information technology.

Additionally, a number of voluntary consensus standards have been developed by standards organizations worldwide over the past decade. Examples of these standards include: the Web Accessibility Initiative’s Web Content Accessibility Guidelines (WCAG) 2.0, EN 301 549 V1.1.1 (2014-02), “Accessibility requirements for public procurement of ICT products and services in Europe,” and the Human Factors Ergonomics Society’s ANSI/HFES 200.2 (2008) ergonomics specifications for the design of accessible software. The harmonization with such international standards and guidelines creates a larger marketplace for accessibility solutions, thereby attracting more offerings and increasing the likelihood of commercial availability of accessible information and communication technology options.

These dramatic changes have led the Access Board to propose revisions to the existing 508 Standards and 255 Guidelines. We are proposing to update the two sets of regulatory provisions jointly to ensure consistency in accessibility across the spectrum of communication and electronic and information technologies and products. The proposed standards and guidelines would support the access needs of individuals with disabilities, while also taking into account the costs to federal agencies and manufacturers of telecommunications equipment of providing accessible electronic information and communication technology.

The term “information and communication technology” (ICT) is used widely throughout this preamble and the proposed rule. 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, websites, and electronic documents.

This proposed rule would eliminate 36 CFR Part 1193 in its entirety, revise 36 CFR 1194, and add three new appendices to Part 1194 containing the Application and Scoping Requirements for the 508 Standards (Appendix A), the Application and Scoping Requirements for the 255 Guidelines (Appendix B), and new Technical Requirements that apply to both Section 508-covered and Section 255-covered ICT. In this preamble, the Board refers to specific provisions of the proposed new 508 Standards and 255 Guidelines by their proposed new section numbers: E101-103 (508 Chapter 1: Application and Administration); E201-208 (508 Chapter 2: Scoping Requirements); C101-103 (255 Chapter 1: Application and Administration); C201-206 (255 Chapter 2: Scoping Requirements); 301-302 (Chapter 3: Functional Performance Criteria); 401-413 (Chapter 4: Hardware); 501-504 (Chapter 5: Software); and 601-603 (Support Documentation and Services).

Legal Authority for 508 Standards: Section 508 of the Rehabilitation Act of 1973 (hereafter, “Section 508”), as amended, 29 U.S.C. 794d, 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. The Rehabilitation Act 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. 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 Access Board revises its existing 508 Standards (whether to keep up with technological changes or otherwise), the Rehabilitation Act 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 become enforceable when adopted by the FAR Council and federal agencies.

Legal Authority for 255 Guidelines: Section 255 of the Communications Act, 47 U.S.C. 255 (hereafter, “Section 255”), requires telecommunications equipment and services to be accessible to and usable by individuals with disabilities, where readily achievable. “Readily achievable” is defined in the statute as “easily accomplishable and able to be carried out without much difficulty or expense.” In determining whether an access feature is readily achievable, the Federal Communications Commission (FCC), which has exclusive authority over enforcement 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. Under Section 255, the Access Board is required to develop guidelines for the accessibility of telecommunications equipment and customer premises equipment in conjunction with the FCC and to review and update the guidelines periodically. The FCC is responsible for enforcing Section 255 and issuing implementing regulations; it is not bound to adopt the Access Board’s guidelines as its own or to use them as minimum requirements.

SUMMARY OF KEY PROVISIONS

A. Proposed 508 Standards

The proposed standards replace the current product-based approach with a functionality-based approach. The proposed technical requirements, which are organized along the lines of ICT functionality, provide standards to ensure that covered hardware, software, electronic content, and support documentation and services are accessible to people with disabilities. In addition, the proposed standards include functional performance criteria, which are outcome-based provisions for cases in which the proposed technical requirements do not address one or more features of ICT.

The four major changes in the proposed 508 Standards are:

• Broad application of WCAG 2.0: The proposed rule would incorporate by reference the Web Content Accessibility Guidelines (WCAG) 2.0, a voluntary consensus standard developed by ICT industry representatives and other experts. It would also make WCAG 2.0 Success Criteria applicable not only to content on the “World Wide Web” (hereafter, Web), but also to non-Web electronic documents and software (e.g., word processing documents, portable document format files, and project management software). By applying a single set of requirements to websites, electronic documents, and software, this proposed provision would adapt the 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.

• Delineation of covered electronic “content”: The proposed rule would also specify that all types of public facing content, as well as eight enumerated categories of non-public facing content that communicate agency official business, would 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 proposed rule would 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.

• 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). But, because this requirement has given rise to ambiguity in application, the proposed rule would provide more specificity about how operating systems, software development toolkits, and software applications should interact with assistive technology. These proposed requirements would allow assistive technology users to take full advantage of the functionalities that ICT products provide.

• Requirement for RTT functionality: The proposed standards would require real-time text (RTT) functionality wherever an ICT product provides real-time, two-way voice communication. RTT is defined in the proposed rule as text that is transmitted character by character as it is being typed. An RTT recipient can read a message while it is being written, without waiting for the message to be completed; this is different from other message technologies such as “short messaging service”, or SMS, which transmit the entire message only after typing is complete. This proposed requirement would have an impact on federal agencies as well as ICT providers, federal employees, and members of the public.

B. Proposed 255 Guidelines

Given the trend toward convergence of technologies and ICT networks, the Access Board is updating the 255 Guidelines at the same time that it is updating the 508 Standards. The existing guidelines include detailed requirements for the accessibility, usability, and compatibility of telecommunications equipment and customer premises equipment. For example, the guidelines require input, output, display, control, and mechanical functions to be accessible to individuals with disabilities. The compatibility requirements focus on the need for standard connectors, compatibility of controls with prosthetics, and TTY compatibility. The guidelines define “usable” as providing access to information about how to use a product, and direct that instructions, product information, documentation, and technical support for users with disabilities be functionally equivalent to that provided to individuals without disabilities. The proposed guidelines include many non-substantive revisions to the existing requirements for clarity along with a few important new provisions. Two notable proposed additions to the proposed 255 Guidelines are:

• Requirement for RTT functionality: Just as the proposed 508 Standards would require federal agencies to offer RTT functionality in certain ICT, the proposed 255 Guidelines would require the manufacturers of telecommunications equipment to provide RTT functionality wherever a telecommunications product provides real-time, two-way voice communication. This proposed requirement would allow people who are deaf or hard of hearing to have faster and more natural conversations than the current text-messaging functionality.

• Application of WCAG 2.0 to electronic documents: The proposed 255 Guidelines would preserve the current requirement that when a document is provided in a non-electronic format, alternate formats (such as large-print or braille) usable by individuals with vision impairments need to be provided. The proposed guidelines also would require documentation in electronic formats—including Web-based self-service support and electronic documents—to conform to all Level A and AA Success Criteria in WCAG 2.0 or ISO 14289-1 (PDF/UA-1). This proposal for accessible electronic support documentation is derived from the existing guidelines, but would newly require compliance with WCAG 2.0 or PDF/UA-1. This proposal is intended to address the problem that many online product (or support) documents for telecommunications equipment are inaccessible to individuals with visual impairments.

SUMMARY OF PRELIMINARY REGULATORY ANALYSIS

Consistent with the obligation that federal agencies under Executive Orders 12866 and 13563 propose and adopt regulations only upon a reasoned determination that benefits justify costs, the proposed rule has been evaluated from a benefit-cost perspective in a preliminary regulatory impact analysis (Preliminary RIA) prepared by the Board’s consulting economic firm. The focus of the Preliminary RIA is to define and, where possible, quantify and monetize the potential economic benefits and costs of the proposed 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 website (www.access-board.gov), as well the federal government’s online rulemaking portal (www.regulations.gov).

To estimate likely incremental compliance costs attributable to the proposed rule, the Preliminary 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 or remediation electronic documents; and (2) costs to manufacturers of telecommunications equipment and customer premises equipment of ensuring that that their respective websites and electronic support documentation conform to accessibility standards, including WCAG 2.0.

On the benefits side, the Preliminary RIA estimates likely incremental benefits by monetizing the value of three categories of benefits expected to accrue from the proposed 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 websites; 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 websites. The Preliminary RIA, for analytical purposes, defines the beneficiary population as persons with vision, hearing, and speech disabilities, as well as those with manipulation, reach, or strength limitations. The Preliminary RIA does not formally quantify or monetize benefits accruing from the proposed 255 Guidelines due to insufficient data and methodological constraints.

Table 1 below summarizes the results from the Preliminary RIA with respect to the likely monetized benefits and costs, on an annualized basis, from the proposed 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 using discount rates of 7 and 3 percent.

Table 1-Annualized Value of Monetized Benefits and Costs under the Proposed Rule, 2015-2024 (in 2015 dollars)

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While the Preliminary RIA monetizes likely incremental benefits and costs attributable to the proposed 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 websites, 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 proposed rule to be a major step toward ensuring that ICT is 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 proposed 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 would likely derive significant benefits from the harmonized accessibility standards. Given the relative lack of existing national and globally-recognized standards for accessibility of mobile technologies, telecommunications equipment manufacturers would greatly benefit from harmonization of the 255 guidelines with consensus standards. Similar benefits would likely accrue more generally to 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 proposed rule are not evaluated in the Preliminary 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. The impact of the proposed 255 Guidelines on telecommunications equipment manufacturers is, as the Preliminary RIA notes, particularly difficult to quantify due to lack of cost data and a dynamic telecommunications marketplace. As a consequence, for example, the Preliminary RIA thus neither quantifies nor monetizes potential compliance costs related to the proposed requirement that ICT providing real-time, two-way voice communication support RTT functionality.

The Access Board welcomes comments on all aspects of the Preliminary RIA to improve the assumptions, methodology, and estimates of the incremental benefits and costs of the proposed rule. The full Preliminary RIA posted on the Board’s website poses numerous regulatory assessment-related questions or areas for public comment, and interested parties are encouraged to review that document and provide responsive data and other information. In addition, the Board sets forth below—in the section providing a more in-depth discussion of the Preliminary RIA—several additional questions on which it seeks input. See Section VIII.A.6 (Regulatory Process Matters – Preliminary Regulatory Impact Analysis – Conclusion).