Withdrawn: 28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations (ANPRM)

IV. Request for Public Comments

Before the Department seeks comment on specific regulatory text, the Department is seeking input from the public. In addition to seeking comments in response to the specific questions raised in this ANPRM, the Department is particularly interested in receiving comments from all of those who have a stake in ensuring that the websites of public accommodations and public entities are accessible to people with disabilities or would otherwise be affected by regulations requiring website access. The Department appreciates the complexity and potential impact of this initiative and therefore also seeks input from experts in the field of computer science, programming, networking, assistive technology, and other related fields whose feedback and expertise will be critical in developing a workable framework for website access that respects the unique characteristics of the Internet and its transformative impact on everyday life. In your comments, please refer to each question by number. Please provide additional information not addressed by the proposed questions if you believe it would be helpful in understanding the implications of imposing ADA regulatory requirements on the websites of public accommodations and State and local government entities.

A. Accessibility standards to apply to websites of covered titles II and III entities

As previously mentioned, the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C^¨) has created recognized voluntary international guidelines for Web accessibility. These guidelines, set out in the Web Content Accessibility Guidelines (WCAG), detail how to make Web content accessible to individuals with disabilities. The most recent and updated version of the WCAG, the WCAG 2.0, was published in December 2008 and is available at www.w3.org/TR/WCAG20/ (last visited June 29, 2010). According to the WAI, the WCAG 2.0 "applies broadly to more advanced technologies; is easier to use and understand; and is more precisely testable with automated testing and human evaluation." See WAI, Web Content Accessibility Guidelines (WCAG) Overview, available at www.w3.org/WAI/intro/wcag.php (last visited June 29, 2010).

The WCAG 2.0 contains 12 guidelines addressing Web accessibility. Each guideline contains testable criteria for objectively determining if Web content satisfies the guideline. In order for a Web page to conform to the WCAG 2.0, the Web page must satisfy the criteria for all 12 guidelines under one of three conformance levels: A, AA, or AAA. The three levels of conformance indicate a measure of accessibility and feasibility. Level A, which is the minimum level of conformance for access, contains criteria that provide basic Web accessibility and that are the most feasible for Web content developers. Level AA, which is the intermediate level for access, contains enhanced criteria that provide more comprehensive Web accessibility and yet are still feasible for Web content developers. Level AAA, which is the maximum level of access, contains criteria that may be less feasible for Web content developers. In fact, WAI does not recommend that Level AAA conformance be required as a general policy for entire websites because it is not possible to satisfy all Level AAA criteria for some content. See W3C^¨,Understanding WCAG 2.0: Understanding Conformance (Dec. 2008),http://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html (last visited June 29, 2010).

Standards for website accessibility also exist for Federal government agencies, which are required to make their websites accessible under section 508 of the Rehabilitation Act of 1973, 29 U.S.C. 794(d) (section 508). Specifically, the websites of Federal government agencies must comply with the Electronic and Information Technology Accessibility Standards (section 508 standards) published by the U.S. Access Board, 36 CFR 1194, available at www.access-board.gov/sec508/standards.htm (last visited June 29, 2010). The Access Board is currently revising the section 508 standards, in part to harmonize the standards with model guidelines, such as the WCAG.

Question 1. Should the Department adopt the WCAG 2.0´s "Level AA Success Criteria" as its standard for website accessibility for entities covered by titles II and III of the ADA? Is there any reason why the Department should consider adopting another success criteria level of the WCAG 2.0? Please explain your answer.

Question 2. Should the Department adopt the section 508 standards instead of the WCAG guidelines as its standard for website accessibility under titles II and III of the ADA? Is there a difference in compliance burdens and costs between the two standards? Please explain your answer.

Question 3. How should the Department address the ongoing changes to WCAG and section 508 standards? Should covered entities be given the option to comply with the latest requirements?

Question 4. Given the ever-changing nature of many websites, should the Department adopt performance standards instead of any set of specific technical standards for website accessibility? Please explain your support for or opposition to this option. If you support performance standards, please provide specific information on how such performance standards should be framed.

B. Coverage limitations

It is the Department´s intention to regulate only governmental entities and public accommodations covered by the ADA that provide goods, services, programs, or activities to the public via websites on the Internet. Although some litigants have asserted that "the Internet" itself should be considered a place of public accommodation, the Department does not address this issue here. The Department believes that title III reaches the websites of entities that provide goods or services that fall within the 12 categories of "public accommodations," as defined by the statute and regulations. Because the Department is focused on the goods and services of public accommodations that operate exclusively or through some type of presence on the Web—whether hosting their own website or participating in a host´s website—the Department wishes to make clear the limited scope of its regulations. For example, the Department is considering proposing explicit regulatory language that makes clear that Web content created or posted by website users for personal, noncommercial use is not covered, even if that content is posted on the website of a public accommodation or a public entity. This would include individual participation in popular online communities, forums, or networks in which people upload personal videos or photos or engage in exchanges with other users. The Department could also make clear that public accommodations and public entities are not liable for inaccessible content posted to their sites by individuals not under their control as long as they provide their website users the ability to make their posts accessible.

In addition, the Department does not intend to propose regulatory text that reaches the informal or occasional trading, selling, or bartering of goods or services by private individuals in the context of an online marketplace. The Department could distinguish such occasional trading activity by individuals acting in a private capacity from legally established business entities, ranging from sole proprietorships to limited liability companies and corporations. As long as these business entities offer the goods or services of a public accommodation online, they would be responsible for making such offerings accessible to individuals with disabilities. Lastly, a public accommodation or public entity would not be required to ensure the accessibility of websites that are linked to its site, but that it does not operate or control. However, to the extent an entity requires users of its website to utilize another website in order to take part in its goods and services (e.g., payment for items on one website must be processed through another website), the entity may be liable for the accessibility of other sites it requires its patrons to use even if it does not operate or control the site.

Question 5. The Department seeks specific feedback on the limitations for coverage that it is considering. Should the Department adopt any specific parameters regarding its proposed coverage limitations? How should the Department distinguish, in the context of an online marketplace, between informal or occasional trading, selling, or bartering of goods or services by private individuals and activities that are formal and more than occasional? Are there other areas or matters regarding which the Department should consider adopting additional coverage limitations? Please provide as much detail as possible in your response.

C. Compliance issues

Question 6. What resources and services are available to public accommodations and public entities to make their websites accessible? What is the ability of covered entities to make their websites accessible with in-house staff? What technical assistance should the Department make available to public entities and public accommodations to assist them with complying with this rule?

Question 7. Are there distinct or specialized features used on websites that render compliance with accessibility requirements difficult or impossible?

The Department has taken the position that covered entities with inaccessible websites may comply with the ADA´s requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their website. See Accessibility of State and Local Government Websites to People with Disabilities, available at www.ada.gov/websites2.htm. In order for an entity to meet its legal obligation under the ADA, an entity´s alternative must provide an equal degree of access in terms of hours of operations and range of information, options, and services available. For example, a department store that has an inaccessible website that allows customers to access their credit accounts 24 hours a day, 7 days a week in order to review their statements and make payments would need to provide access to the same information and provide the same payment options in its accessible alternative.

Question 8. Given that most websites today provide significant amounts of services and information in a dynamic, evolving setting that would be difficult, if not impossible, to replicate through alternative, accessible means, to what extent can accessible alternatives still be provided? Might viable accessible alternatives still exist for simple, non-dynamic websites?

D. Effective date

Following the publication of a final rule, the Department must set an effective date for the application of any new title II or title III regulations requiring the websites of entities covered by the ADA to be accessible. When the ADA was enacted, the effective dates for various provisions were delayed in order to provide time for covered entities to become familiar with their new obligations. Under the 1991 regulations, new construction under title II and alterations under either title II or title III had to comply with the design standards of the Department´s new regulations by January 26, 1992, six months after the regulations were published. See 28 CFR 35.151(a)-(b); 28 CFR 36.402(a). For new construction under title III, the ADA requirements applied to facilities of public accommodations designed and constructed for first occupancy after January 26, 1993––eighteen months after the ADA Standards were published by the Department. See 28 CFR 36.401(a).

The Department is considering an effective date of six months after the publication of the final rule for newly created websites or pages, i.e., those that have been placed online for the first time six months after the publication of the final rule. Under such a proposal, newly created or completely redesigned websites will have to come into total compliance with any Web access requirements adopted by the Department. New pages on existing websites would need to comply with the Web access requirements to the maximum extent feasible. The Department is considering this provision for new pages on existing websites because the Department recognizes that certain features on existing websites—such as navigation components or use of integrated Web technology with limited capacity for accessibility—cannot be completely altered or replaced without a complete redesign of the entire site. For this reason, the Department is considering requiring new pages on existing websites to comply with the accessibility requirements to the maximum extent feasible. The Department recognizes, however, that in some cases this may result in incomplete accessibility of new pages. For existing websites or pages, the Department is considering having the website access requirement apply two years after the date of publication of the final rule. The Department is considering this period of time for existing websites because it recognizes that many websites have hundreds (and some thousands) of pages that will need to be made accessible.

Question 9. The Department seeks comment on the proposed time frames for compliance. Are the proposed effective dates for the regulations reasonable or should the Department adopt shorter or longer periods for compliance? Please provide as much detail as possible in support of your view.

Question 10. The Department seeks comment regarding whether such a requirement would cause some businesses to remove older material rather than change the content into an accessible format. Should the Department adopt a safe harbor for such content so long as it is not updated or modified?

Question 11. Should the Department take an incremental approach in adopting accessibility regulations applicable to websites and adopt a different effective date for covered entities based on certain criteria? For instance, should the Department´s regulation initially apply to entities of a certain size (e.g., entities with 15 or more employees or earning a certain amount of revenue) or certain categories of entities (e.g., retail websites)? Please provide as much detail and information as possible in support of your view.

E. Cost and benefits of website regulations

Executive Order 12866 requires Federal agencies to submit "significant regulatory action" to the Office of Management and Budget´s (OMB) Office of Information and Regulatory Affairs (OIRA) for review and approval prior to publication in the Federal Register. See E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended; OMB Budget Circular A 4, www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (Sept. 17, 2003) (last visited June 29, 2010). A proposed regulatory action is deemed to be "economically significant" under section 3(f)(1) of Executive Order 12866 if it has an annual effect on the economy of $100 million or more. Id. Regulatory actions that are deemed to be economically significant must include a formal regulatory analysis––a report analyzing the economic costs and benefits of the regulatory action. A formal cost-benefit analysis must include both qualitative and quantitative measurements of the benefits and costs of the proposed rule as well as a discussion of each potentially effective and reasonably feasible alternative. Since this is an ANPRM, the Department is not required to conduct certain economic analyses or written assessments that otherwise may be required for other more formal types of agency regulatory actions (e.g., notices of proposed rulemaking or final rules). If any proposed rule the Department issues regarding Web access is likely to have an economically significant impact on the economy, the Department will prepare a formal regulatory analysis.

Question 12. What data source do you recommend to assist the Department in estimating the number of public accommodations (i.e., entities whose operations affect commerce and that fall within at least one of the 12 categories of public accommodations listed above) and State and local governments to be covered by any website accessibility regulations adopted by the Department under the ADA? Please include any data or information regarding entities the Department might consider limiting coverage of, as discussed in the "coverage limitations" section above.

Question 13. What are the annual costs generally associated with creating, maintaining, operating, and updating a website? What additional costs are associated with creating and maintaining an accessible website? Please include estimates of specific compliance and maintenance costs (software, hardware, contracting, employee time, etc.). What, if any, unquantifiable costs can be anticipated from amendments to the ADA regulations regarding website access?

Question 14. What are the benefits that can be anticipated from action by the Department to amend the ADA regulations to address website accessibility? Please include anticipated benefits for individuals with disabilities, businesses, and other affected parties, including benefits that cannot be fully monetized or otherwise quantified.

Question 15. What, if any, are the likely or potential unintended consequences (positive or negative) of website accessibility requirements? For example, would the costs of a requirement to provide captioning to videos cause covered entities to provide fewer videos on their websites?

Question 16. Are there any other effective and reasonably feasible alternatives to making the websites of public accommodations accessible that the Department should consider? If so, please provide as much detail about these alternatives, including information regarding their costs and effectiveness in your answer.

F. Impact on small entities

Consistent with the Regulatory Flexibility Act of 1980 and Executive Order 13272, the Department must consider the impacts of any proposed rule on small entities, including small businesses, small nonprofit organizations, and small governmental jurisdictions. See 5 U.S.C. 603-04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002). The Department will make an initial determination as to whether any rule it proposes is likely to have a significant economic impact on a substantial number of small entities, and if so, the Department will prepare an initial regulatory flexibility analysis analyzing the economic impacts on small entities and regulatory alternatives that reduce the regulatory burden on small entities while achieving the goals of the regulation. In response to this ANPRM, the Department encourages small entities to provide cost data on the potential economic impact of adopting a specific requirement for website accessibility and recommendations on less burdensome alternatives, with cost information.

Question 17. The Department seeks input regarding the impact the measures being contemplated by the Department with regard to Web accessibility will have on small entities if adopted by the Department. The Department encourages you to include any cost data on the potential economic impact on small entities with your response. Please provide information on capital costs for equipment, such as hardware and software needed to meet the regulatory requirements; costs of modifying existing processes and procedures; any affects to sales and profits, including increases in business due to tapping markets not previously reached; changes in market competition as a result of the rule; and cost for hiring web professionals for to assistance in making existing websites accessible.

Question 18. Are there alternatives that the Department can adopt, which were not previously discussed in response to Questions 11 or 16, that will alleviate the burden on small entities? Should there be different compliance requirements or timetables for small entities that take into account the resources available to small entities or should the Department adopt an exemption for certain or all small entities from coverage of the rule, in whole or in part. Please provide as much detail as possible in your response.

G. Other issues

Question 19. The Department is interested in gathering other information or data relating to the Department´s objective to provide requirements for Web accessibility under titles II and III of the ADA. Are there additional issues or information not addressed by the Department´s questions that are important for the Department to consider? Please provide as much detail as possible in your response.

Dated: __________________________

_______________________________

Thomas E. Perez
Assistant Attorney General
Civil Rights Division