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

VIII. Regulatory Process Matters

A. Preliminary Regulatory Impact Analysis (Executive Order 12866)

Executive Orders 13563 and 12866 direct agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtaining the regulatory objectives; and in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Important goals of regulatory analysis are to (1) establish whether federal regulation is necessary and justified to achieve a market failure or other social goal and (2) demonstrate that a range of reasonably feasible regulatory alternatives have been considered and that the most efficient and effective alternative has been selected. Executive Order 13563 also recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.

The Board contracted with an economic consulting firm, Econometrica, Inc. (Econometrica), to assess, among other things, whether the impact of the proposed rule would likely be economically “significant.” Economic significance is defined as any regulatory action that is likely to result in “an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safely, or State, local, or tribal governments or communities.”

Econometrica prepared a preliminary regulatory impact analysis (Preliminary RIA). This Preliminary RIA determined, among other things, that the proposed rule is economically significant within the meaning of Executive Order 12866. Below we provide a summary of the preliminary RIA’s methodology and results. 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 (http://www.regulations.gov/). Interested parties are encouraged to review the full Preliminary RIA, and to provide data and other information responsive to requests for comment posed separately in that document. Moreover, while the Board welcomes comments on any aspect of the Preliminary RIA, several areas on which the Board particularly seeks input are identified at the end of this section.

1. Summary of Results

The focus of the Preliminary RIA is to define and, where possible, quantify and monetize the potential economic benefits and costs of the proposed Section 508 Standards and 255 Guidelines. On the benefits side, the Preliminary RIA monetizes incremental benefits under the proposed 508 Standards attributable to: (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 vision 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.

From the cost perspective, the Preliminary RIA monetizes likely incremental compliance costs under both the proposed 508 Standards and 255 Guidelines. Monetizable costs under the 508 Standards are expected to be incurred by federal agencies, contractors, and vendors in five broad areas: policy development; employee training; development of accessible ICT; evaluation of ICT; and, development of accessible electronic content. With respect to the 255 Guidelines, the Preliminary RIA monetizes the likely costs to telecommunications equipment manufacturers of ensuring that their respective websites and electronic support documentation conform to accessibility requirements. Insufficient data were available to assess incremental costs related to other new requirements in the proposed 255 Guidelines, including support for real-time text (RTT) functionality.

Table 4 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 4-Annualized Value of Monetized Benefits and Costs under the Proposed 508 Standards and 255 Guidelines, 2015-2024 (in 2015 dollars)

 (*Note: Totals may not sum due to rounding)

It is also important to note that some potentially significant benefits and costs from the proposed 508 Standards and 255 Guidelines are not evaluated in the Preliminary RIA, either because they could not be quantified or monetized (due to lack of data or for other methodological reasons) or are inherently qualitative. These unquantified benefits and costs are described qualitatively below. 

Evaluation of the economic impact of the proposed Section 508 and 255 requirements is, moreover, complicated by the rapid evolution of ICT devices, platforms, applications, and consensus standards. The benefits and costs of the proposed standards and guidelines ultimately depend not only on technologies that are currently available to achieve compliance, but also on emerging technologies that may provide more cost-effective ways in the future to ensure equal access to ICT for people with disabilities.

2. General Framework of Assessment

Some of the main components of the Preliminary RIA’s methodology are as follows:

Estimating the beneficiary population: To estimate the number of federal employees and members of the public with disabilities who could potentially benefit from updated and improved ICT accessibility standards, the Preliminary RIA primarily draws from two data sources. Public data on federal workers with disabilities was obtained from the Office of Personnel Management. Data on the prevalence of various disabilities within the U.S population were obtained from the U.S. Census Bureau’s Survey of Income and Program Participation (SIPP) data set, which provides statistics on the non-institutionalized U.S. population.

Identifying incremental changes in the proposed rule: To assess the potential incremental impact of the proposed rule, the Preliminary RIA identifies provisions in the proposed standards and guidelines that would likely increase compliance costs for covered entities (e.g., federal agencies, federal contractors, and manufacturers of telecommunications equipment), as well as provisions that could be expected to reduce the amount of time and effort required for compliance relative to existing requirements.

Developing baseline compliance costs: Estimates of “baseline” compliance costs to covered entities under the existing 508 Standards and 255 Guidelines are drawn from current spending levels for relevant ICT-related products, services, and personnel. For federal agencies, baseline compliance costs under Section 508 include both in-house ICT (e.g., policy development, employee training, development and remediation of websites and electronic documents to ensure accessibility under current standards), and procured ICT (e.g., procurement of Section 508-compliant hardware, software, services from federal contractors and vendors). For telecommunications equipment manufacturers, baseline costs under the existing 255 Guidelines are based on the monetized value of the estimated time manufacturers currently spend making support documentation accessible using estimates developed by the Access Board for the Paperwork Reduction Act. See Section VIII.F (Regulatory Process Matters – Paperwork Reduction Act).

Monetizing expected incremental benefits and costs of the proposed 508 Standards: The Preliminary RIA quantifies and monetizes the expected incremental benefits to federal agencies and members of the public with vision disabilities likely to benefit from the proposed standards. For persons with vision disabilities, benefit calculations are based on the value of time saved due to improved accessibility of federal websites. Benefits to federal agencies are assessed based on the monetized value of reduced call volumes and increased productivity of employees with disabilities owing to ICT accessibility improvements. Compliance costs for federal agencies are classified as either one-time or annual, and are assessed based on various fixed percentages of baseline costs depending on the nature of the cost component at issue (e.g., website remediation, employee training, development of accessible electronic content). Incremental costs and benefits are calculated relative to the applicable baseline over a 10-year analysis period from 2015 through 2024.

Monetizing expected incremental costs of the proposed 255 Guidelines: The Preliminary RIA quantifies and monetizes the expected incremental costs to manufacturers of telecommunications equipment and customer premises equipment (CPE) of complying with new requirements in the proposed guidelines related to accessible electronic support documentation. Benefits attributable to new or updated requirements in the proposed 255 Guidelines—such as the value of improved accessibility for persons with disabilities or cost savings to telecommunications equipment manufacturers— were not evaluated due to insufficient data and the methodological complexity of “mapping” proposed new requirements to particular cost elements in a dynamic and evolving telecommunications marketplace. Compliance costs to telecommunications equipment manufacturers and CPE are classified as either one-time or annual, and are assessed based on various fixed percentages of baseline costs for development of accessible support documentation depending on firm size. Incremental costs are calculated relative to the baseline over a 10-year analysis period from 2015 through 2024.

Describing unquantifiable costs and benefits: For benefits and costs that could be neither quantified nor monetized, the Preliminary RIA qualitatively describes, and assesses the significance of, such costs and benefits.

3. Baseline Compliance Costs

The total costs that federal agencies, vendors, and contractors incur to comply with the current 508 Standards are estimated at $2.0 billion annually. This amount represents about 2 percent of annual ICT spending, which is estimated at $80 billion to $120 billion, depending on which products and services are included in the total. Baseline costs for telecommunications equipment manufacturers to conform to the current 255 Guidelines related to product documentation and user support are estimated at $114 million annually. Taken all together, the overall baseline compliance costs are therefore estimated at $2.1 billion annually.

4. Benefits of the Proposed Rule

Overall, results from the Preliminary RIA demonstrate that the proposed 508 Standards will likely have substantial monetizable benefits to federal agencies and persons with disabilities. As shown in Table 4 above, the annualized value of monetized benefits from these proposed standards is estimated to be $69.1 million over the 10-year analysis period (assuming a 7 percent discount rate). In calculating these monetized benefits, the Preliminary RIA makes the following assumptions: (a) one-half of the recurring annual benefits derived from accessible ICT would be realized in the first year of implementation; and (b) the number of individuals with disabilities who visit federal agency websites will increase every year, but a constant proportion of those individuals will visit such websites every year.

It is also important to note that the proposed rule is expected to generate significant benefits that were not evaluated in the Preliminary RIA, either because they could not be quantified or monetized (due to lack of data or for other methodological reasons) or are inherently qualitative. Estimating the economic impact of a civil rights-based regulatory initiative in an area—and marketplace—as dynamic as ICT is a complex and difficult task. Some of these unquantified (or inherently unquantifiable) benefits of the proposed 508 Standards are listed in Table 5 below. The fact that these benefits could not be formally assessed in this Preliminary RIA should not diminish their importance or value.

Table 5 - Unquantified Benefits of the Proposed Rule

5. Costs of the Proposed Rule

The Preliminary RIA shows that the proposed standards and guidelines will likely increase compliance costs substantially when first implemented, but will thereafter result in only a small percentage increase in recurring annual costs in later years. Overall, the Preliminary RIA estimates that the total incremental cost of the proposed 508 Standards and 255 Guidelines is expected to be $165.6 million on an annualized basis over the 10-year analysis period, based on a 7 percent discount rate (see Table 4 above).

The Preliminary RIA does not, however, quantify and monetize all potential compliance costs arising from the proposed rule—due primarily to insufficient data or for other methodological limitations. The impact of the proposed 255 Guidelines on telecommunications equipment manufacturers is, as the Preliminary RIA notes, particularly difficult to quantify. (Information on the impact of the proposed guidelines was solicited unsuccessfully in both the 2010 and 2011 ANPRMs.) Some of these unquantified costs of the proposed 508 Standards and 255 Guidelines are listed in Table 6 below.

Table 6 - Unquantified Costs of the Proposed Rule

In addition, incremental cost estimates in the Preliminary RIA do not reflect other potentially influential factors that may occur over time—such as future changes in the fiscal environment and its effect on ICT budgets, the impact of recent government-wide initiatives to manage ICT more strategically, efforts to harmonize standards for a global ICT market, and trends in technological innovation. 

6. Conclusion

While the Preliminary RIA estimates that incremental costs, as assessed and monetized in the assessment, exceed the monetized benefits of the proposed rule, this finding represents only a piece of the regulatory story. 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 more accessible to and usable by individuals with disabilities—both in the federal workplace and society generally. Indeed, much—if not most—of the benefits expected to accrue from the proposed rule are difficult if not impossible to quantify or monetize, including: greater social equality, human dignity, and fairness. These are all values that, under Executive Order 13563,¹³ may properly be considered in the benefit-cost calculus.

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. These manufacturers would earn return on investments in accessibility technology, remain competitive in the global marketplace, and achieve economies of scale created by wider use of nationally and internationally recognized technical standards.

Accordingly, when considering all unquantified benefits and costs, the Access Board, along with its consulting economic firm (Econometrica), jointly conclude that the benefits of the proposed update of the 508 Standards and 255 Guidelines justify its costs.

The Access Board welcomes comments on any aspect of the Preliminary RIA to improve the assumptions, methodology, and estimates of the incremental benefits and costs (baseline and incremental) of the proposed rule. The full Preliminary RIA sets forth numerous regulatory assessment-related questions or areas for public comment. In addition, the Board provides below several additional questions on which it seeks input:

Question 36. The Board requests information from telecommunications equipment manufacturers concerning expected one-time and ongoing costs associated with implementation of the proposed technical requirements related to support for real-time text (RTT) functionality. Please be as specific as possible. The Board is also interested in hearing from other stakeholders —particularly persons with disabilities—about the nature and scope of benefits provided by RTT in emergency and non-emergency settings. How might the Board quantify or monetize such benefits?

Question 37. The Board requests information from telecommunications equipment manufacturers concerning potential benefits that would accrue from harmonization of technical requirements in the proposed rule with national and international consensus standards? Both cost savings data and qualitative information are requested.

Question 38. The proposed rule would, among other things, require federal agency websites and electronic content to conform to WCAG 2.0 or PDF/UA-1. Do federal agencies believe that the Preliminary RIA adequately captures their potential costs to comply with these requirements? If not, how might the analysis be improved? Are there significant cost elements missing from the Preliminary RIA? Please be as specific as possible.

Question 39. The Preliminary RIA does not monetize benefits for persons with non-vision disabilities due to a lack of data on which to base estimated time savings. The Board requests data and other information on the likely time savings for persons with hearing, motor or dexterity, speech, or cognitive disabilities from using accessible websites as compared to websites with low accessibility. Are there empirical research studies from which time savings estimates may be derived?

Question 40. The Board also seeks information from persons with disabilities who would benefit from improved accessibility of federal agency websites. How frequently do they visit federal agency websites, and for what duration and purposes? Are there other suggested methods of quantifying benefits accruing from accessible agency websites other than (or in addition to) monetizing time savings? To the extent that benefits from accessible agency websites cannot be quantified, the Board welcomes examples of personal or anecdotal experience that illustrate the value of improved accessibility of federal websites.

Question 41. In addition to the questions for public comment posed in the Preliminary RIA and elsewhere in this NPRM, the Board is interested in hearing from the public more generally with information that would aid analysis of the costs and benefits of individual requirements in the 508 Standards and 255 Guidelines at the final rule stage. Is there a better way than the methodology used in the Preliminary RIA to “map” the incremental costs and benefits of particular technical and functional requirements to various stakeholders? If so, how might the analysis be improved? Are there other suggested sources for unit cost data other than those cited in the Preliminary RIA?

7. Alternatives

We considered two alternative approaches to updating the existing 508 Standards and 255 Guidelines:

• In the 2010 ANPRM, the Board proposed a set of requirements that were based on, but not identical to, the WCAG 2.0 standards and other voluntary consensus standards. Comments received from the public indicated that this approach was potentially confusing, as federal agencies, contractors, and vendors would have to make specific compliance determinations in cases where the language used in the proposed 508 Standards differed from that in the referenced standard.

• The Board also considered requiring ICT to comply with the full set of functional performance criteria, which state in general terms the features of ICT that ensure its accessibility to people with one or more of different types of disabilities. Comments indicated that this approach would make it difficult for ICT producers to be able to determine whether or not their products and services were compliant with the proposed 508 Standards.

Based on the public feedback on the two policy alternatives, we determined that the clearest and most cost-effective way to set out the proposed accessibility requirements was to identify and reference existing, voluntary consensus standards directly, wherever possible.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA), as amended (5 U.S.C. 601 - 612) requires agencies to evaluate the potential effects of their rulemakings on small entities.¹⁴ Section 603 of the RFA requires agencies to prepare and make available for public comment an initial regulatory flexibility analysis describing the impact of proposed rules on small entities. Because the proposed 255 Guidelines regulate non-federal entities (e.g., telecommunications equipment manufacturers), these guidelines fall within the purview of the RFA. The proposed 508 Standards, on the other hand, directly regulate only federal entities that are not covered by the RFA. Accordingly, the Access Board evaluates here only the impact of the proposed 255 Guidelines on small entities. The Board provides below an initial regulatory flexibility analysis (Initial RFA) for these proposed guidelines.

Description of the reasons why the Access Board is considering regulatory action. Section 255 of the Communications Act of 1934 (47 U.S.C. 255), as amended, requires telecommunication equipment to be accessible to and usable by individuals with disabilities, where readily achievable. The Access Board is statutorily responsible for developing accessibility guidelines for telecommunications equipment and customer premises equipment (CPE). The Access Board is also required to review and update the guidelines periodically. The Federal Communications Commission (FCC), however, is solely responsible for issuing implementing regulations and enforcing Section 255. The FCC is not bound to adopt the Access Board’s guidelines as its own or to use them as minimum standards.

In 1998, the Board issued the existing 255 Guidelines (36 CFR Part 1193). Since then, telecommunications technology and commercial markets have changed dramatically, along with the usage of telecommunications equipment. Given these tremendous changes, the Board is proposing to update the 255 Guidelines.

Objectives of, and legal basis for, the proposed rule. The Board’s proposed 255 Guidelines would provide a much-needed “refresh” of the existing 255 Guidelines, and, thereby, better support the access needs of individuals with disabilities, while also taking into account incremental compliance costs to covered manufacturers of CPE and telecommunications equipment. The proposed guidelines would be applicable only to new products to the extent that compliance is readily achievable; they would not require retrofitting of existing equipment or retooling. Manufacturers may consider costs and available resources when determining whether, and the extent to which, compliance is required.

Description and estimate of the number of small entities to which the proposed rule will apply. The proposed 255 Guidelines cover manufacturers of telecommunications equipment and CPE, as well as the manufacturers of equipment that functions as telecommunications and CPE.¹⁵ The Board used publicly available data from the Office of Advocacy of the Small Business Administration (SBA) to estimate the number of small businesses that may be affected by the proposed guidelines. The North American Industry Classification System (NAICS) is the standard used by federal statistical agencies in classifying business establishments.¹⁶

To determine the number of small businesses potentially subject to the proposed 255 Guidelines, the Board reviewed NAICS industry classifications and SBA small business size standards. The Board determined that three NAICS-based industry classifications may be subject to the proposed 255 Guidelines. These industry categories and their accompanying six-digit NAICS codes are: (a) NAICS Code 334210 – Telephone Apparatus Manufacturing; (b) NACIS Code 334220 – Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing; and (c) NACIS Code 334111 – Electronic and Computer Manufacturing. The Board then matched these three NAICS classifications with SBA small business size standards (based on number of employees) to determine the number of small business within each of the respective classifications.¹⁷

Table 7 below provides the potential number of small businesses, based on SBA size standards, for each of the three types of equipment manufacturers (by NACIS code) that may be affected by the proposed 255 Guidelines.

Table 7 - Small Businesses Potentially Affected by the Proposed 255 Guidelines

A few notes are in order about the foregoing estimates of the number of small firms potentially affected by the 255 Guidelines. First, because all telephone equipment is covered by Section 255, all entities included in the telephone apparatus manufacturing category (334210) are necessarily subject to the guidelines. However, not all entities in the remaining two industry categories (334220 and 334111) are covered by the proposed guidelines because many of these entities may manufacture only equipment that falls outside the scope of Section 255. For example, only radio and broadcasting equipment that meets the statutory definition of telecommunications (that is, “the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received”), is covered by the proposed guidelines. Also, computers lacking modems or Internet telephony software are not covered by the proposed guidelines. However, the Board lacks quantitative information to differentiate regulated from non-regulated manufacturing firms within these two NAICS categories, as well as to determine how many of the “small businesses” in each NAICS category are subject to the proposed guidelines. The number of small entities listed in Table 7 that may be affected by the proposed 255 Guidelines should, therefore, be considered an upper-bound estimate. 

Second, given that manufacturers of telecommunications equipment and CPE must comply with Section 255 only to the extent such compliance is “readily achievable” (i.e., easily accomplishable and able to be carried out without much difficulty or expense), there will likely be some small firms for which compliance with the proposed guidelines will prove too difficult or expensive. This is not a new proposition. Under both the existing guidelines and current FCC regulations, compliance for manufacturing firms of all sizes is limited by the readily achievable exception, though such exception necessarily applies with greater frequency to smaller entities. (See 36 CFR 1193.21; 47 CFR 6.3(g)). The Board also understands that many small firms in the three NAICS categories listed above serve as partners or suppliers to larger firms that provide a full range of products and services. For these reasons, the Board assumes that many small firms identified in Table 7—particularly those with fewer than 20 employees—likely would not incur new costs under the proposed 255 Guidelines. Accordingly, the mid-point estimate for the number of small businesses that may be affected by the proposed 255 Guidelines is assumed to be small firms that meet the SBA size standards and employ twenty or more workers.

Description of the projected reporting, record keeping, and other compliance requirements for small entities. As discussed above, the proposed 255 Guidelines contain many requirements that are similar to the existing guidelines. There, are, however, two new proposed requirements that would apply to manufacturers of telecommunications equipment and CPE: 410.6 (real-time text functionality) and 602.3 (electronic support documentation). These two new requirements would potentially impose new costs on small manufacturing firms.

Regarding real time text (RTT) requirements under proposed 410.6, the Board lacks quantitative cost information. We requested information on RTT costs in the 2010 and 2011 ANPRMs, but did not receive specific cost data. Accordingly, we cannot, at this time, quantify or monetize the potential cost impact of the proposed RTT requirements in the 255 Guidelines. The Board does, however, seek comment on how to estimate the cost impact of the RTT requirements on small businesses subject to the 255 Guidelines so that we may use such information to prepare, as needed, a final regulatory flexibility analysis.

With respect to the new obligation in proposed 602.3 for Section 255-covered manufacturers to ensure the accessibility of electronic support documentation (such as web-based self-service support and electronic manuals), the Preliminary RIA develops estimated incremental costs, heavily relying on the cost methodology used by the Department of Transportation (DOT) in the regulatory assessment of its recent final rule requiring, among other things, airlines to make their websites accessible to persons with disabilities.¹⁸ (See Section VIII.A – Regulatory Process Matters – Preliminary Regulatory Impact Analysis).

Based on the methodology and estimates used in the Preliminary RIA, the Board’s Initial RFA assesses potential compliance costs for small manufacturers of telecommunications equipment and CPE based on estimated (a) one-time costs to create accessible electronic support documentation and websites, and (2) recurring, annual maintenance costs. One-time costs are assumed to be spread equally over the first two years (i.e., half of covered firms realizing costs in the first year, and the other half in year two), with annual maintenance costs incurred thereafter for the remainder of the 10-year regulatory horizon. Estimated compliance costs are based on firm size. For small businesses with 100 or more employees, average one-time costs are assumed to be $125,000 for bringing their respective support documentation and websites into compliance with the proposed 255 Guidelines. For firms with fewer than 100 employees, average per-firm one-time costs under the proposed guidelines are assumed to be $25,000. Annual recurring maintenance costs are estimated as twenty percent of one-time costs regardless of firm size.

Using these cost assumptions, the Initial RFA evaluates the monetary impact of the proposed 255 Guidelines from three perspectives. The first scenario uses the upper-bound estimate for small businesses that may be affected by the proposed guidelines (i.e., all small firms meeting SBA size standards) to assess total one-time and annual maintenance costs across all affected industry categories. These costs, which should be considered an upper-bound estimate, are reflected below:

Table 8-Estimated Incremental Costs for Small Manufacturing Firms Subject to the Proposed 255 Guidelines (Scenario 1 – All Firms)

Second, to reflect the reality that compliance may not be readily achievable for the smallest firms (and, as well, the fact that such firms often serve as suppliers to larger firms and thus may not be covered by Section 255), the second scenario uses the mid-point estimate for small businesses that may be affected by the proposed guidelines (i.e., small firms that meet the SBA size standards and have twenty or more employees) to assess total one-time and annual maintenance costs across all industry categories. These costs, which should be considered a mid-point estimate, are reflected below:

Table 9-Estimated Incremental Costs for Small Manufacturing Firms Subject to the Proposed 255 Guidelines (Scenario 2–Firms with 20 or More Employees)

Third, to assess the magnitude of potential compliance costs for small businesses under the proposed 255 Guidelines relative to annual receipts, the third scenario evaluates the ratio of average annualized costs per-firm to average receipts per firm for each of the three NAICS codes. Average annualized costs represent the per-firm stream of estimated one-time and recurring annual costs over the 10-year regulatory horizon at a 7 percent discount rate. Annualized costs are assumed to be consistent across the three NAICS codes for each of the two studied small firm sizes (i.e., more or less than 100 employees) because the Board does not have NAICS code-based data differentiating receipts by firm size. Annual estimated average per-firm receipts for each NAICS code, in turn, are derived from publicly-available SBA data. The ratio of average per-firm annualized costs and annual per-firm receipts is then calculated for each NACIS code and firm size, with the resulting percentage serving as a metric to evaluate the relative economic significance of compliance costs to small businesses under the proposed 255 Guidelines.

The results are presented below in two separate tables by the size (in terms of number of employees) of small firms covered by Section 255.

Table 10-Ratio of Annualized Per-Firm Costs to Receipts for Small Firms with 100 or More Employees (by NAICS Code)

Table 11-Ratio of Annualized Per-Firm Costs to Receipts for Small Firms with Less Than 100 Employees (by NAICS Code)

The results of these average cost/receipt analyses demonstrate that incremental costs of the proposed 255 Guidelines for small businesses—whether larger or smaller than 100 employees—are expected to be minimal relative to firm receipts. In no case would this ratio exceed about one-half of a percent, with ratios ranging from a low of 0.008 to a high of 0.049. Accordingly, based on the foregoing analysis, the Board does not believe that the proposed 255 Guidelines are likely to have a significant economic impact on a substantial number of small entities.

Question 42. The Board requests input from manufacturers of telecommunications equipment and customer premises equipment, as well as other interested parties, on the small business cost estimation methodology and assumptions used in this Initial RFA. The Board will use relevant information provided in public comments to determine whether or how to revise our estimates for the final regulatory flexibility analysis.

Duplication with other federal rules. To the Board’s knowledge, there are no relevant federal rules that duplicate, overlap, or conflict with the proposed 255 Guidelines.

Description of significant alternatives to the proposed 255 Guidelines. In the Board’s view, there are no alternatives to the proposed guidelines that would accomplish the goal of meeting the access needs of individuals with disabilities, while taking into account compliance costs of manufacturers of telecommunications equipment and CPE.

C. Executive Order 13132: Federalism

The proposed rule adheres to the fundamental federalism principles and policy making criteria in Executive Order 13132. The proposed 508 Standards apply to the development, procurement, maintenance, or use of ICT by federal agencies. The proposed 255 Guidelines apply to manufacturers of telecommunications equipment and customer premises equipment and require that equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if it is readily achievable to do so. As such, the Board has determined that the proposed rule does not have federalism implications within the meaning of Executive Order 13132.

D. Executive Order 13609: Promoting International Regulatory Cooperation

Executive Order 13609 serves to promote international regulatory cooperation and harmonization. The Access Board has tried to promote the principles of the executive order by making concerted efforts with a number of foreign governments throughout the development of the proposed 508 Standards and 255 Guidelines. For example, the Board and the European Commission have made every effort to coordinate development of their respective ICT standards. This cooperation began with the 2005 EU-US Economic Initiative (http://trade.ec.europa.eu/doclib/docs/2006/june/tradoc_127643.pdf) and continued through the work of the Access Board with representatives from the European Commission, Canada, Australia, and Japan serving on the Telecommunications and Electronic and Information Technology Advisory Committee which informed the proposed 508 Standards and 255 Guidelines. In our view, the proposed 508 Standards and 255 Guidelines are the product of the Board’s coordination with international regulatory partners, which will ultimately help American companies better compete globally.

E. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act does not apply to proposed or final rules that enforce constitutional rights of individuals or enforce statutory rights that prohibit discrimination on the basis of race, color, sex, national origin, age, handicap, or disability. The proposed 508 Standards are issued pursuant to the Rehabilitation Act. When federal agencies develop, procure, maintain, or use electronic and information technology, they are required to ensure that the electronic and information technology allows federal employees with disabilities to have access to and use of information and data that is comparable to the access enjoyed by federal employees without disabilities, unless doing so would impose an undue burden on the agency. The statute also requires that members of the public with disabilities seeking information or services from a federal agency have access to and use of information and data that is comparable to that provided to other members of the public unless doing so would impose an undue burden on the agency. We have issued the proposed 255 Guidelines pursuant to Section 255 of the Communications Act of 1934 which requires manufacturers of telecommunications equipment and customer premises equipment to ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if it is readily achievable to do so. Accordingly, an assessment of the effect of the proposed 508 Standards and 255 Guidelines on state, local, and tribal governments is not required by the Unfunded Mandates Reform Act.

F. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 - 3521) requires federal agencies to obtain approval from the Office of Management and Budget (OMB) before requesting or requiring a “collection of information” from the public. As part of the PRA process, agencies are generally required to provide a 60-day notice in the Federal Register concerning each proposed collection of information to solicit, among other things, comment on the necessity of the information collection and its estimated burden. 44 U.S.C. 3506(c)(2)(A). To comply with this requirement, the Board publishes here a notice of proposed collection of information in the proposed 255 Guidelines.

Proposed C206, along with several provisions in Chapter 6 (Support Documentation and Services), collectively obligate manufacturers of telecommunications equipment and customer premises equipment to provide accessible support documentation and services, which constitute “collection of information” under the PRA. More specifically, the proposed rule requires covered manufacturers, when providing support documentation and services, to ensure accessibility for individuals with disabilities with respect to four categories of information as follows: (1) support documentation must list and explain how to use accessibility and compatibility features of telecommunications products (602.2); (2) electronic support documentation must conform to WCAG 2.0 or PDF/UA-1 (602.3); (3) non-electronic support documentation in alternate formats (e.g., braille, large print), which is available upon request, must be usable by users with vision impairments (602.4); and (4) support services (e.g., help desks, call centers) must offer information on accessibility and compatibility features, as well as ensure a contact method that accommodates the communication needs of individuals with disabilities (603.2 and 603.3).

These four proposed information collection requirements are generally similar to those under existing 255 Guidelines § 1193.33, which were previously reviewed and approved by the Office of Management and Budget (OMB) in accordance with the PRA (OMB Control Number 3014-0010), though compliance with WCAG 2.0 (or PDF/UA-1) is new. The newly proposed information collection is the requirement that telecommunications equipment manufacturers ensure that any electronic documentation (such as web-based self-service support or PDF user guides) provided to end users must meet specified accessibility standards (602.3). 

The Board estimates the annual burden on manufacturers of telecommunications equipment and customer premises equipment for the four categories of information collection under the proposed rule as follows:

Table 12-Estimated Annual Recordkeeping and Documentation Burden

These estimates are based on the Board’s experience with the current information collection requirements under the existing 255 Guidelines, as well as public comment received in response to the 2010 and 2011 ANPRMs. Highlighted below are the key assumptions used in the burden estimation calculus.

Number of respondents. The number of manufacturers of telecommunications equipment and customer premises equipment (1,384) is based on the number of firms assumed to be affected by the proposed rule using the North American Industry Classification System (NAICS). See Section IV.B (Regulatory Process Matters – Regulatory Flexibility Act).

Number of responses annually per manufacturer. The number of annual responses for each manufacturer (6) is based on the estimated number of new products released in 2013 according to the Consumer Electronic Association.

Average response time.

• Section 602.2: The estimated response time assumes that documenting the accessibility and compatibility features will take 1.5 hours for each new product.
• Section 602.3: The estimated response time assumes that development of accessible electronic support documentation will take 300 hours for each new product. This estimate, in turn, is based on the assumption that each product will have, on average, 200 pages of electronic documentation, and that each page will require 1.5 hours of formatting and editing to comply with WCAG 2.0 or PDF/UA-1, as applicable. With respect to the annual number of responses for each manufacturer, it is assumed that support documentation for nearly all new products will be provided in an electronic format given current trends in the telecommunications industry. Specifically, it is estimated that 95 percent of the six new products introduced annually by each manufacturer (7,889 products) will have electronic support documentation that must conform to proposed 602.3.
• Section 602.4: The estimated response time assumes that development of accessible non-electronic support documentation in alternate formats (e.g., braille, large print) will take 25 hours for each new product. With respect to the annual number of responses for each manufacturer, it is assumed that support documentation for only a few new products will have support documentation in a non-electronic format in recognition of the fact that most support documentation is now posted online or otherwise provided in electronic formats. Thus, it is assumed that only 5 percent of the six new products introduced annually by each manufacturer (415 products) will have non-electronic support documentation that must conform to proposed 602.4.
• Section 603: The estimated response time assumes that, for each new product in a given year, manufacturers will receive three 10-minute telephone calls to support centers (or emails or chat-based interactions) from individuals with disabilities seeking information on the accessibility and compatibility features of these products.

The Board seeks comment on the methods and assumptions used in estimating the annual burden associated with the information collection requirements in the proposed 255 Guidelines. Organizations and individual desiring to submit comments on this information collection requirements should direct them to the Office of Information and Regulatory Affairs, OMB, Room 10235, New Executive Office Building, Washington, DC 20503;

Attention: Desk Officer for the Access Board.

The Board requests comments on these proposed collections of information in:

• Evaluating whether the proposed collection of information is necessary for the proper implementation of Section 255, including whether the information will have a practical use;
• Evaluating the accuracy of the Board’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of collection of information of those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g., permitting electronic submission of responses).

OMB is required to make a decision concerning the collection of information contained in these proposed guidelines between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment to the Board on the NPRM.

G. Availability of Materials Incorporated by Reference

As noted previously in the Section-by-Section Analysis for proposed E102 and C102, the Access Board is proposing to incorporate by reference ten consensus standards in the 508 Standards and 255 Guidelines. See Section VI.B (Section-by-Section Analysis - 508 Standards: Application and Scoping – E102) and Section VI.C (Section-by-Section Analysis - 255 Guidelines: Application and Scoping – C102). The Office of the Federal Register recently promulgated a final rule requiring federal agencies to provide additional information to the public in regulatory preambles for materials to be incorporated by reference.¹⁹

In keeping with these new obligations for materials proposed for incorporation by reference, the Access Board provides below: (a) information on the public availability of these ten standards (or, alternatively, how Access Board staff attempted to secure the availability of these materials to the public at no cost or reduced cost, if not already publicly available free of charge by the standards development organization); and (b) summaries of the materials to be incorporated by reference. In addition to the information provided below relating to public availability, a copy of each referenced standard is available for inspection at our agency’s office, 1331 F Street NW, Suite 1000, Washington, DC 20004.

ANSI/HFES 200.2 (2008) Human Factors Engineering of Software User Interfaces — Part 2: Accessibility (referenced in: E102.2, C102.2, 502.4). This standard provides design specifications for human-system software interfaces to increase accessibility for persons with disabilities. It covers the design of accessible software for people with a wide range of physical, sensory and cognitive abilities, including those with temporary disabilities and older adults. Availability: Copies of this standard may be obtained from Human Factors and Ergonomics Society (HFES), P.O. Box 1369, Santa Monica, CA 90406-1369. This standard is also available for purchase on the HFES website (http://www.hfes.org/). Additionally, HFES has agreed to make a read-only copy of this standard available during the comment period upon request.

ANSI/IEEE C63.19-2011 American National Standard for Methods of Measurement of Compatibility between Wireless Communications Devices and Hearing Aids (see E102.3, C102.3, 410.4.1). This standard provides a uniform method of measurement for compatibility between hearing aids and wireless communications devices. Availability: Copies of this standard may be obtained from the Institute of Electrical and Electronics Engineers (IEEE), 10662 Los Vaqueros Circle, P.O. Box 3014, Los Alamitos, CA 90720-1264. This standard is also available for purchase on the IEEE website (http://www.ieee.org/). IEEE has also agreed to make a read-only version of this standard available on the organization’s website during the comment period.

A/53 Digital Television Standard, Part 5: 2010 AC-3 Audio System Characteristics (2010) (see E102.4, C102.4, 412.1.1). The standard for digital television provides the system characteristics for advanced television systems. The document and its normative parts provide detailed specification of system parameters. Part 5 provides the audio system characteristics and normative specifications. It includes the Visually Impaired (VI) associated service, which is a complete program mix containing music, effects, dialogue and a narrative description of the picture content. ATSC also publishes a companion technical assistance guide for its television standard. Availability: Copies of this standard may be obtained from the Advanced Television Systems Committee (ATSC), 1776 K Street NW, Suite 200, Washington, DC 20006-2304. Free copies of A/53 Digital Television Standard are available online at the organization’s website: (http://www.atsc.org/cms/standards/a53/a_53-Part-5-2010.pdf).

Request for Comment (RFC) 4103, Real-Time Transport Protocol Payload for Text Conversation (2005) (see E102.5, C102.5, 410.6.3.2). This standard establishes specifications for how to carry real-time text (RTT) conversation session contents in Real-time Transport Protocol (RTP) packets. RTT is used alone or in connection with other conversational modalities to form multimedia conversation services. RTT in multimedia conversation sessions is sent character-by-character as soon as it is available, or with a small delay for buffering. Availability: Free copies of this standard are available online at the Internet Engineering Task Force’s website (http://www.rfc-base.org/txt/rfc-4103.txt).

ISO 14289-1 (PDF/UA-1) Document management applications — Electronic document file format enhancement for accessibility — Part 1: Use of ISO 32000-1 (2014) (see E102.6, C102.6, E205.1, 602.3.1). This standard is the consensus international specification for accessible PDF. PDF/UA-1 provides a technical, interoperable standard for the authoring, remediation and validation of PDF content to ensure accessibility for people with disabilities who use assistive technology, such as screen readers, screen magnifiers, joysticks and other technologies used to navigate and read electronic content. Availability: Copies of this standard may be obtained from the International Organization for Standardization (ISO), ISO Central Secretariat, 1, ch. de la Voie-Creuse, CP 56 - CH-1211 Geneva 20, Switzerland. This standard is also available for purchase on the ISO website (http://www.iso.org/). Access Board staff is in discussion with ISO about making a read-only version of this standard available on the organization’s website during the comment period. Please consult the Access Board website for updates on the availability of this standard during the comment period.

ITU-T Recommendation G.722: Series G: Transmission Systems and Media, Digital Systems and Networks Digital Terminal Equipments [sic] – Coding of voice and audio signals, 7 kHz Audio-Coding within 64 Kbits/s (September 2012) (see E102.7.1, C102.7.1, 410.5). This standard specifies a coder-decoder program that provides 7 kHz wideband audio at data rates from 48, 56, and 64 kbits/s. Availability: This standard may be obtained from the International Telecommunication Union, Telecommunications Standardization Sector (ITU-T), Place des Nations CH-1211, Geneva 20, Switzerland. Free copies of ITU-T Recommendation G.72 are available online at the organization’s website (http://www.itu.int/rec/T-REC-G.722-201209-I/en).

ITU-T Recommendation E.161: Arrangement of digits, letters and symbols on telephones and other devices that can be used for gaining access to a telephone network (February 2001) (see E102.7.2, C107.2, 407.3.2). This standard defines the assignment of the basic 26 Latin letters (A to Z) to the 12-key telephone keypad. Availability: This standard may be obtained from ITU-T, Place des Nations CH-1211, Geneva 20, Switzerland. Free copies of ITU-T Recommendation E.161 are available online at the organization’s website (https://www.itu.int/rec/T-REC-E.161-200102-I/en).

TIA 825-A, A Frequency Shift Keyed Modem for Use on the Public Switched Telephone Network (2003) (see E102.8.1, C102.8.1, 410.6.3.1). This standard is a specification for TTY signals on the public switched telephone network interface. Availability: Copies of this standard, which is published by the Telecommunications Industry Association (TIA), may be obtained from the IHS Standard Store (IHS), 15 Inverness Way East, Englewood, CO 80112. This standard is also available for purchase on the IHS website (https://www.global.ihs.com/). Additionally, TIA has agreed to make a read-only version of this standard available, upon request, through TIA’s website (www.tiaonline.org) during the comment period.

TIA 1083 Telephone Terminal Equipment Handset Magnetic Measurement Procedures and Performance Requirements (2007) (see E102.8.2, C102.8.2, 410.4.2). This standard defines measurement procedures and performance requirements for the handset generated audio band magnetic noise of wire line telephones, including digital cordless telephones. Availability: Copies of this standard, which is published by the Telecommunications Industry Association (TIA), may be obtained from the IHS Standard Store (IHS), 15 Inverness Way East, Englewood, CO 80112. This standard is also available for purchase on the IHS website (https://www.global.ihs.com/). Additionally, TIA has also agreed to make a read-only version of this standard available, upon request, through TIA’s website (www.tiaonline.org) during the comment period.

Web Content Accessibility Guidelines (WCAG) 2.0, W3C Recommendation (December 2008) (see E102.9, C102.9, E205.1, E207.2, 405.1 Exception, 501.1 Exception 1, 504.2, 504.3, 504.4, 602.3.1). WCAG 2.0, published by the W3C Web Accessibility Initiative (W3C), specifies success criteria and requirements to make web content more accessible to all users, including persons with disabilities. The W3C website also provides online technical assistance materials linked to each success criteria and technical requirement. Availability: Copies of this standard may be obtained from the W3C Web Accessibility Initiative, Massachusetts Institute of Technology, 32 Vassar Street, Room 32-G515, Cambridge, MA 02139. Free copies of WCAG 2.0, and its related technical assistance materials, are available online at W3C’s website (http://www.w3.org/TR/WCAG20).

List of Subjects

36 CFR Part 1193

Communications, Communications equipment, Individuals with disabilities, Reporting and recordkeeping requirements, Telecommunications.

36 CFR Part 1194

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

David M. Capozzi,
Executive Director.