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[Federal Register: July 26, 2010 (Volume 75, Number 142)]
[Proposed Rules]               
[Page 43460-43467]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jy10-15]                         

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DEPARTMENT OF JUSTICE

28 CFR Parts 35 and 36

[CRT Docket No. 110]
RIN 1190-AA61

 
Nondiscrimination on the Basis of Disability; Accessibility of 
Web Information and Services of State and Local Government Entities and 
Public Accommodations

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Advance Notice of Proposed Rulemaking.

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SUMMARY: The Department of Justice (Department) is considering revising 
the regulations implementing title III of the Americans with 
Disabilities Act (ADA or Act) in order to establish requirements for 
making the goods, services, facilities, privileges, accommodations, or 
advantages offered by public accommodations via the Internet, 
specifically at sites on the World Wide Web (Web), accessible to 
individuals with disabilities. The Department is also considering 
revising the ADA's title II regulation to establish requirements for 
making the services, programs, or activities offered by State and local 
governments to the public via the Web accessible. The Department is 
issuing this advance notice of proposed rulemaking (ANPRM) in order to 
solicit public comment on various issues relating to the potential 
application of such requirements and to obtain background information 
for the regulatory assessment the Department must prepare if it were to 
adopt requirements that are economically significant according to 
Executive Order 12866.

DATES: The Department invites written comments from members of the 
public. Written comments must be postmarked and electronic comments 
must be submitted on or before January 24, 2011. Commenters should be 
aware that the electronic Federal Docket Management System will not 
accept comments after Midnight Eastern Time on the last day of the 
comment period.

ADDRESSES: You may submit comments, identified by RIN 1190-AA61 (or 
Docket ID No. 110), by any one of the following methods:
     Federal eRulemaking Web site: www.regulations.gov. Follow 
the Web site's instructions for submitting comments.
     Regular U.S. mail: Disability Rights Section, Civil Rights 
Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-
0885.
     Overnight, courier, or hand delivery: Disability Rights 
Section, Civil Rights Division, U.S. Department of Justice, 1425 New 
York Avenue, NW., Suite 4039, Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Christina Galindo-Walsh, Attorney, 
Disability Rights Section, Civil Rights Division, U.S. Department of 
Justice, at (202) 307-0663 (voice or TTY). This is not a toll free 
number. Information may also be obtained from the Department's toll-
free ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 
(TTY).
    You may obtain copies of this ANPRM in large print, audiotape, 
Braille, or computer disk by calling the ADA Information Line at (800) 
514-0301 (voice) or (800) 514-0383 (TTY). This ANPRM is also available 
on the ADA Home Page at http://www.ada.gov.

SUPPLEMENTARY INFORMATION: 

I. Electronic Submission of Comments and Posting of Public Comments

    You may submit electronic comments to www.regulations.gov. When 
submitting comments electronically, you must include CRT Docket No. 110 
in the subject box, and you must include your full name and address. 
Electronic files should avoid the use of special characters or any form 
of encryption and should be free of any defects or viruses.
    Please note that all comments received are considered part of the 
public record and made available for public inspection online at 
www.regulations.gov. Submission postings will include any personal 
identifying information (such as your name, address, etc.) included in 
the text of your comment. If you include personal identifying 
information (such as your name, address, etc.) in the text of your 
comment but do not want it to be posted online, you must include the 
phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of 
your comment. You must also include all the personal identifying 
information you want redacted along with this phrase. Similarly, if you 
submit confidential business information as part of your comment but do 
not want it posted online, you must include the phrase ``CONFIDENTIAL 
BUSINESS INFORMATION'' in the first

[[Page 43461]]

paragraph of your comment. You must also prominently identify 
confidential business information to be redacted within the comment. If 
a comment has so much confidential business information that it cannot 
be effectively redacted, all or part of that comment may not be posted 
on www.regulations.gov.
    Comments on this ANPRM will also be made available for public 
viewing by appointment at the Disability Rights Section, located at 
1425 New York Avenue, NW., Suite 4039, Washington, DC 20005, during 
normal business hours. To arrange an appointment to review the 
comments, please contact the ADA Information Line at (800) 514-0301 
(voice) or (800) 514-0383 (TTY).
    The reason that the Civil Rights Division is requesting electronic 
comments before Midnight Eastern Time on the day the comment period 
closes is because the inter-agency Regulations.gov/Federal Docket 
Management System (FDMS), which receives electronic comments terminates 
the public's ability to submit comments at Midnight on the day the 
comment period closes. Commenters in time zones other than Eastern may 
want to take this fact into account so that their electronic comments 
can be received. The constraints imposed by the Regulations.gov/FDMS 
system do not apply to U.S. postal comments, which will be considered 
as timely filed if they are postmarked before Midnight on the day the 
comment period closes.

II. Public Hearing

    The Department will hold a hearing to solicit comments on the 
issues presented in this notice. The Department plans to hold the 
public hearing during the 180-day public comment period. The date, 
time, and location of the public hearing will be announced to the 
public in the Federal Register.

III. Background

A. Statutory and Rulemaking History

    On July 26, 1990, President George H.W. Bush signed into law the 
ADA, a comprehensive civil rights law prohibiting discrimination on the 
basis of disability. The ADA broadly protects the rights of individuals 
with disabilities in employment, access to State and local government 
services, places of public accommodation, transportation, and other 
important areas of American life. The ADA also requires newly designed 
and constructed or altered State and local government facilities, 
public accommodations, and commercial facilities to be readily 
accessible to and usable by individuals with disabilities. 42 U.S.C. 
12101 et seq. Section 204 (a) of title II and section 306(b) of title 
III direct the Attorney General to promulgate regulations to carry out 
the provisions of titles II and III, other than certain provisions 
dealing specifically with transportation. 42 U.S.C. 12134; 42 U.S.C. 
12186(b).
    Title II applies to State and local government entities, and, in 
Subtitle A, protects qualified individuals with disabilities from 
discrimination on the basis of disability in services, programs, and 
activities provided by State and local government entities. Title II 
extends the prohibition on discrimination established by section 504 of 
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 
504), to all activities of State and local governments regardless of 
whether these entities receive Federal financial assistance. 42 U.S.C. 
12131-65.
    Title III prohibits discrimination on the basis of disability in 
the activities of places of public accommodation (private entities 
whose operations affect commerce and that fall into one of 12 
categories listed in the ADA, such as restaurants, movie theaters, 
schools, day care facilities, recreational facilities, and doctors' 
offices) and requires newly constructed or altered places of public 
accommodation--as well as commercial facilities (privately owned, 
nonresidential facilities such as factories, warehouses, or office 
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-89.
    On July 26, 1991, the Department issued its final rules 
implementing title II and title III, which are codified at 28 CFR part 
35 (Title II) and part 36 (Title III). Appendix A of the title III 
regulation, at 28 CFR part 36, app. A, contains the ADA Standards for 
Accessible Design. On September 30, 2004, the Department published an 
advance notice of proposed rulemaking (2004 ANPRM) to begin the process 
of updating the 1991 regulations to adopt revised ADA Standards based 
on the relevant parts of the 2004 ADA/ABA Guidelines. 69 FR 58768. On 
June 17, 2008, the Department issued a notice of proposed rulemaking 
(NPRM) to adopt the revised 2004 ADA Standards and revise the title II 
and title III regulations. 73 FR 34466. The NPRM addressed the issues 
raised in the public's comments to the ANPRM and sought additional 
comment. Although the Department did not propose to include Web 
accessibility provisions in the 2004 ANPRM or the 2008 NPRM, the 
Department received numerous comments urging the Department to issue 
Web accessibility regulations under the ADA. Based on these comments 
and the reasons detailed below, the Department has decided to begin the 
process of soliciting comments and suggestions with respect to what an 
NPRM regarding Web access should contain.

B. Legal Foundation for Web Accessibility

    When the ADA was enacted in 1990, the Internet as we know it 
today--the ubiquitous infrastructure for information and commerce--did 
not exist. Today the Internet, most notably the sites of the Web, plays 
a critical role in the daily personal, professional, civic, and 
business life of Americans. Increasingly, private entities are 
providing goods and services to the public through Web sites that 
operate as places of public accommodation under title III of the ADA. 
Similarly, many public entities under title II are using Web sites to 
provide the public access to their programs, services, and activities. 
Many Web sites of public accommodations and governmental entities, 
however, render use by individuals with disabilities difficult or 
impossible due to barriers posed by Web sites designed without 
accessible features.
    Being unable to access Web sites puts individuals at a great 
disadvantage in today's society, which is driven by a dynamic 
electronic marketplace and unprecedented access to information. On the 
economic front, electronic commerce, or ``e-commerce,'' often offers 
consumers a wider selection and lower prices than traditional, ``brick-
and-mortar'' storefronts, with the added convenience of not having to 
leave one's home to obtain goods and services. For individuals with 
disabilities who experience barriers to their ability to travel or to 
leave their homes, the Internet may be their only way to access certain 
goods and services.
    Beyond goods and services, information available on the Internet 
has become a gateway to education. Schools at all levels are 
increasingly offering programs and classroom instruction through Web 
sites. Many colleges and universities offer degree programs online; 
some universities exist exclusively on the Internet. Even if they do 
not offer degree programs online, most colleges and universities today 
rely on Web sites and other Internet-related technologies in the 
application process for prospective students, for housing eligibility 
and on-campus living assignments, course registration, assignments and 
discussion groups, and for a wide variety of administrative and 
logistical functions in which students

[[Page 43462]]

and staff must participate. Similarly, in the elementary- and 
secondary-school settings, communications via the Internet are 
increasingly becoming the way teachers and administrators communicate 
grades, assignments, and administrative matters to parents and 
students.
    The Internet is also dramatically changing the way that 
governmental entities serve the public. Public entities are 
increasingly providing their constituents access to government services 
and programs through their Web sites. Through government Web sites, the 
public can obtain information or correspond with local officials 
without having to wait in line or be placed on hold. They can also pay 
fines, apply for benefits, renew State-issued identification, register 
to vote, file taxes, request copies of vital records, and complete 
numerous other everyday tasks. The availability of these services and 
information online not only makes life easier for the public, but also 
enables governmental entities to operate more efficiently and at a 
lower cost.
    The Internet also is changing the way individuals socialize and 
seek entertainment. Social networks and other online meeting places 
provide a unique way for individuals to meet and fraternize. These 
networks allow individuals to meet others with similar interests and 
connect with friends, business colleagues, elected officials, and 
businesses. They also provide an effective networking opportunity for 
entrepreneurs, artists, and others seeking to put their skills and 
talents to use. Web sites also bring a myriad of entertainment and 
information options for Internet users--from games and music to news 
and videos. With the Internet, individuals can find countless ways to 
entertain themselves without ever leaving home.
    More and more, individuals are also turning to the Internet to 
obtain healthcare information. Individuals use the Internet to research 
diagnoses they have received or symptoms that they are experiencing. 
There are a myriad of Web sites that provide information about causes, 
risk factors, complications, tests, and diagnoses, treatment and drugs, 
prevention, and alternative therapies for just about any disease or 
illness. Moreover, healthcare and insurance providers are increasingly 
offering patients the ability to access their healthcare records 
electronically via Web sites. As use of the Internet to provide and 
obtain healthcare information increases, the inability of individuals 
with disabilities to also access this information can potentially have 
a significant adverse effect on their health.
    The ADA's promise to provide an equal opportunity for individuals 
with disabilities to participate in and benefit from all aspects of 
American civic and economic life will be achieved in today's 
technologically advanced society only if it is clear to State and local 
governments, businesses, educators, and other public accommodations 
that their Web sites must be accessible. Consequently, the Department 
is considering amending its title II and title III regulations to 
require public entities and public accommodations that provide products 
or services to the public through Web sites on the Internet to make 
their sites accessible to and usable by individuals with disabilities 
under the legal framework established by the ADA.
i. Barriers to Web Accessibility
    Millions of individuals in the United States have disabilities that 
affect their use of the Web. Many of these individuals use assistive 
technology to enable them to navigate Web sites or access information 
contained on those sites. For example, individuals who do not have use 
of their hands may use speech recognition software to navigate a Web 
site, while individuals who are blind may rely on a screen reader to 
convert the visual information on a Web site into speech. Many Web 
sites fail to incorporate or activate features that enable users with 
disabilities to access all the site's information or elements. For 
instance, individuals who are deaf are unable to access information in 
Web videos and other multimedia presentations that do not have 
captions. Individuals with low vision may be unable to read Web sites 
that do not allow the font size or the color contrast of the site's 
page to be modified. Individuals with limited manual dexterity who may 
use assistive technology that enables them to interact with Web sites 
cannot access sites that do not support keyboard alternatives for mouse 
commands. These same individuals, along with individuals with 
intellectual and vision disabilities, often encounter difficulty using 
portions of Web sites that require timed responses from users but do 
not give users the ability to indicate that they need more time to 
respond.
    Individuals who are blind or have low vision often confront 
significant barriers to Web access. This is because many Web sites 
provide information visually without features that allow screen readers 
or other assistive technology to retrieve information on the site so it 
can be presented in an accessible manner. The most common barrier to 
Web site accessibility is an image or photograph without corresponding 
text describing the image. A screen reader or similar assistive 
technology cannot ``read'' an image, leaving individuals who are blind 
with no way of independently knowing what information the image conveys 
(e.g., a simple graphic or a link to another page). Similarly, complex 
Web sites often lack navigational headings or links that would 
facilitate navigation using a screen reader or may contain tables with 
header and row identifiers that display data, but fail to provide 
associated cells for each header and row so that the table information 
can be interpreted by a screen reader.
    Online forms, which are an essential part of accessing goods and 
services on many Web sites, are often inaccessible to individuals with 
disabilities. For example, field elements on forms--the empty boxes 
that hold specific pieces of information, such as a last name or 
telephone number--that lack clear labels, and visual CAPTCHAs 
(``Completely Automated Public Turing Test To Tell Computers and Humans 
Apart'')--distorted text that must be inputted by a Web site user to 
verify that a Web submission is being completed by a human rather than 
a computer--make it difficult for persons using screen readers to make 
purchases, submit donations, and otherwise interact with a Web site. 
These barriers greatly impede the ability of individuals with 
disabilities to fully enjoy the goods, services, and programs offered 
by covered entities on the Web.
    In most instances, removing these and other Web site barriers is 
neither difficult nor especially costly, and in most cases providing 
accessibility will not result in changes to the format or appearance of 
a site. The addition of invisible attributes known as alt (alternate) 
text or tags to an image will help keep an individual using a screen 
reader oriented and allow him or her to gain access to the information 
on the Web site. Associating form labels to form input fields and 
locating form labels adjacent to form input fields will allow an 
individual using a screen reader to access the information and form 
elements necessary to complete and submit a form on the Web site. 
Moreover, Web designers can easily add headings, which facilitate page 
navigation using a screen reader, to their Web pages. They can also add 
cues to ensure the proper functioning of keyboard commands and set up 
their programs to respond to assistive technology, such as voice 
recognition technology.

[[Page 43463]]

ii. Web Accessibility Under the ADA
    The Internet as it is known today did not exist when Congress 
enacted the ADA and, therefore, neither the ADA nor the regulations the 
Department promulgated under the ADA specifically address access to Web 
sites. But the statute's broad and expansive nondiscrimination mandate 
reaches goods and services provided by covered entities on Web sites 
over the Internet. Title III of the ADA provides that ``[n]o individual 
shall be discriminated against on the basis of disability in the full 
and equal enjoyment of the goods, services, facilities, privileges, 
advantages, or accommodations of any place of public accommodation by 
any person who owns, leases (or leases to), or operates a place of 
public accommodation.'' 42 U.S.C. 12182(a). Title III of the ADA and 
its corresponding regulations define a ``place of public 
accommodation'' as a facility whose operations affect commerce and that 
falls within at least one of the following 12 categories:

    (1) An inn, hotel, motel, or other place of lodging, except for 
an establishment located within a building that contains not more 
than five rooms for rent or hire and that is actually occupied by 
the proprietor of the establishment as the residence of the 
proprietor;
    (2) A restaurant, bar, or other establishment serving food or 
drink;
    (3) A motion picture house, theater, concert hall, stadium, or 
other place of exhibition or entertainment;
    (4) An auditorium, convention center, lecture hall, or other 
place of public gathering;
    (5) A bakery, grocery store, clothing store, hardware store, 
shopping center, or other sales or rental establishment;
    (6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, 
travel service, shoe repair service, funeral parlor, gas station, 
office of an accountant or lawyer, pharmacy, insurance office, 
professional office of a health care provider, hospital, or other 
service establishment;
    (7) A terminal, depot, or other station used for specified 
public transportation;
    (8) A museum, library, gallery, or other place of public display 
or collection;
    (9) A park, zoo, amusement park, or other place of recreation;
    (10) A nursery, elementary, secondary, undergraduate, or 
postgraduate private school, or other place of education;
    (11) A day care center, senior citizen center, homeless shelter, 
food bank, adoption agency, or other social service center 
establishment; and
    (12) A gymnasium, health spa, bowling alley, golf course, or 
other place of exercise or recreation.

    42 U.S.C. 12181(7); 28 CFR 36.104. Congress contemplated that the 
Department would apply the statute in a manner that evolved over time, 
and it delegated authority to the Attorney General to promulgate 
regulations to carry out the Act's broad mandate. See H.R. Rep. No. 
101-485(II), 101st Cong., 2d Sess. 108 (1990); 42 U.S.C. 12186(b). 
Consistent with this approach, the Department stated in the preamble to 
the original 1991 ADA regulations that the regulations should be 
interpreted to keep pace with developing technologies. 28 CFR part 36, 
app. B.
    Section 12182 of title III provides that no person ``who owns, 
leases (or leases to), or operates a place of public accommodation'' 
may discriminate ``on the basis of disability in the full and equal 
enjoyment of the goods, services, facilities, privileges, advantages, 
or accommodations of any place of public accommodation.'' 42 U.S.C. 
12182(a) (emphasis added). Similarly, title II provides that qualified 
individuals with disabilities shall not be excluded from 
``participation in or be denied the benefits of the services, programs, 
or activities of a public entity.'' 42 U.S.C. 12132 (emphasis added). 
The plain language of these statutory provisions applies to 
discrimination in offering the goods and services ``of'' a place of 
public accommodation or the services, programs, and activities ``of'' a 
public entity, rather than being limited to those goods and services 
provided ``at'' or ``in'' a place of public accommodation or facility 
of a public entity. See National Federation of the Blind v. Target 
Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006) (finding in a Web 
site-access case that ``[t]o limit the ADA to discrimination in the 
provision of services occurring on the premises of a public 
accommodation would contradict the plain language of the statute''); 
Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002) 
(finding that discrimination did not have to occur on-site in order to 
violate the ADA); see also Carparts Distribution Ctr., 37 F.3d 12 
(concluding that title III is not limited to provision of goods and 
services provided in physical structures, but also covers access to 
goods and services offered by a place of public accommodation through 
other mediums, such as telephone or mail). But see Access Now, Inc. v. 
Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002) (finding 
a Web site is only covered if it affects access to a physical place of 
public accommodation); See Weyer v. Twentieth Century Fox Film Corp., 
198 F.3d 1104, 1114-16 (9th Cir. 2000) (requiring some connection 
between the goods or services complained of and an actual physical 
place); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir. 
1998) (finding no nexus between challenged insurance policy and 
services offered to the public from insurance office). Instead, the ADA 
mandate for ``full and equal enjoyment'' requires nondiscrimination by 
a place of public accommodation in the offering of all its goods and 
services, including those offered via Web sites.
iii. Need for Department Action
    The Internet has been governed by a variety of voluntary standards 
or structures developed through nonprofit organizations using 
multinational collaborative efforts. For example, domain names are 
issued and administered through the Internet Corporation for Assigned 
Names and Numbers (ICANN), the Internet Society (ISOC) publishes 
computer security policies and procedures for sites, and the World Wide 
Web Consortium (W3C[supreg]) develops a variety of technical standards 
and guidelines ranging from issues related to mobile devices and 
privacy to internationalization of technology. In the area of 
accessibility, the Web Accessibility Initiative (WAI) of the 
W3C[supreg] has created the Web Content Accessibility Guidelines 
(WCAG).
    It has been the policy of the United States to encourage self-
regulation with regard to the Internet wherever possible and to 
regulate only where self-regulation is insufficient and government 
involvement may be necessary. See Memorandum on Electronic Commerce, 33 
WCPD 1006, 1006-1010 (July 1, 1997), available at http://www.gpo.gov/fdsys/pkg/WCPD-1997-07-07/html/WCPD-1997-07-07-Pg1006-2.htm (last 
visited June 29, 2010); A Framework for Global Electronic Commerce, 
http://clinton4.nara.gov/WH/New/Commerce (last visited June 29, 2010).
    Voluntary standards have generally proved to be sufficient where 
obvious business incentives align with discretionary governing 
standards as, for example, with respect to privacy and security 
standards designed to increase consumer confidence in e-commerce. There 
has not, however, been equal success in the area of accessibility. The 
WAI leadership has recognized this challenge and has stated that in 
order to improve and accelerate Web accessibility it is important to 
``communicat[e] the applicability of the ADA to the Web more clearly, 
with updated guidance * * * .'' Achieving the Promise of the Americans 
with Disabilities Act in the Digital Age--Current Issues, Challenges, 
and Opportunities: Hearing Before the Subcomm. on the Constitution, 
Civil Rights, and Civil Liberties, H. Comm. On

[[Page 43464]]

the Judiciary, 111th Cong. (Apr. 22, 2010) (statement of Judy Brewer, 
Director, Web Accessibility Initiative at the W3C[supreg]). It is clear 
that the system of voluntary compliance has proved inadequate in 
providing Web site accessibility to individuals with disabilities. See, 
e.g., National Council on Disability, The Need for Federal Legislation 
and Regulation Prohibiting Telecommunications and Information Services 
Discrimination (Dec. 19, 2006), available at www.ncd.gov/newsroom/publications/2006/discrimination.htm (last visited June 29, 2010) 
(discussing how competitive market forces have not proven sufficient to 
provide individual with disabilities access to telecommunications and 
information services.)
    There is no doubt that the Web sites of state and local government 
entities are covered by title II of the ADA. See 28 CFR 35.102 
(providing that the title II regulation ``applies to all services, 
programs, and activities provided or made available by public 
entities''). Similarly, there seems to be little debate that the Web 
sites of recipients of federal financial assistance are covered by 
section 504 of the Rehabilitation Act. The Department has affirmed the 
application of these statutes to Web sites in a technical assistance 
publication, Accessibility of State and Local Government Web sites to 
People with Disabilities (available at www.usdoj.gov/crt/ada/Web 
sites2.htm), and in numerous agreements with State and local 
governments and recipients of Federal financial assistance.
    The Department has also repeatedly affirmed the application of 
title III to Web sites of public accommodations. The Department first 
made this position public in a 1996 letter from Assistant Attorney 
General Deval Patrick responding to an inquiry by Senator Tom Harkin 
regarding the accessibility of Web sites to individuals with visual 
disabilities. See Letter from Deval L. Patrick, Assistant Attorney 
General, Civil Rights Division, Department of Justice, to Tom Harkin, 
U.S. Senator (Sept. 9, 1996), available at www.justice.gov/crt/foia/tal712.txt. The letter has been widely cited as a statement of the 
Department's position. The letter does not, however, state whether 
entities doing business exclusively on the Internet are covered by the 
ADA.
    In 2000, the Department filed an amicus brief in the Fifth Circuit 
in Hooks v. OKbridge, Inc., which involved a Web-only business. The 
Department's brief explained that a business providing services solely 
over the Internet is subject to the ADA's prohibitions on 
discrimination on the basis of disability. See Brief of the United 
States as Amicus Curiae in Support of Appellant, 232 F.3d 208 (5th Cir. 
2000) (No. 99-50891), 1999 WL 33806215, available at http://www.justice.gov/crt/briefs/hooks.htm. In a 2002 amicus brief in the 
Eleventh Circuit in Rendon v. Valleycrest Productions, Inc., the 
Department argued against a requirement, imposed outside of the 
Internet context by some Federal courts of appeals, that there be a 
nexus between a challenged activity and a private entity's ``brick-and-
mortar'' facility to obtain coverage under title III. See Brief for the 
United States as Amicus Curiae in Support of Appellant, 294 F.3d 1279 
(11th Cir. 2002) (No. 01-11197), 2001 WL 34094038, available at http://www.justice.gov/crt/briefs/rendon.htm. Although Rendon did not involve 
Web site access, the Department's brief argued that title III applies 
to any activity or service offered by a public accommodation, on or off 
the premises.
    For years, businesses and individuals with disabilities alike have 
urged the Department to provide guidance on the accessibility of Web 
sites of entities covered by the ADA. While some actions have been 
brought regarding access to Web sites under the ADA that have resulted 
in courts finding liability or in the parties agreeing to a settlement 
to make the subject Web sites accessible, a clear requirement that 
provides the disability community consistent access to Web sites and 
covered entities clear guidance on what is required under the ADA does 
not exist. See generally, Target, 452 F. Supp. 2d 946; Amazon.com and 
National Federation of the Blind Join Forces to Develop and Promote Web 
Accessibility (Mar. 28, 2007), http://www.nfb.org/nfb/NewsBot.asp?MODE=VIEW&ID=174 (last visited June 29, 2010); Spitzer 
Agreement to Make Web Sites Accessible to the Blind and Visually 
Impaired (Aug. 2004), http://www.ag.ny.gov/media_center/2004/aug/aug19a_04.html (last visited June 29, 2010). Two independent Federal 
agencies have also formally called on the Department to revise its 
regulations to make clear that the Web sites of entities covered under 
title III are subject to the ADA. See Federal Communications 
Commission, Recommendation 9.10, National Broadband Plan (Mar. 16, 
2010), available at http://www.broadband.gov/plan (last visited June 
29, 2010) (``The DOJ should amend its regulations to clarify the 
obligations of commercial establishments under title III of the 
Americans with Disabilities Act with respect to commercial Web 
sites''); National Council on Disability, The Need for Federal 
Legislation and Regulation Prohibiting Telecommunications and 
Information Services Discrimination (Dec. 19, 2006), available at 
http://www.ncd.gov/newsroom/publications/2006/discrimination.htm (last 
visited June 29, 2010) (urging the Department to clarify the ADA's 
coverage of Web sites of title III entities).
    Although the Department has been clear that the ADA applies to Web 
sites of private entities that meet the definition of ``public 
accommodations,'' inconsistent court decisions, differing standards for 
determining Web accessibility, and repeated calls for Department action 
indicate remaining uncertainty regarding the applicability of the ADA 
to Web sites of entities covered by title III. For these reasons, the 
Department is exploring what regulatory guidance it can propose to make 
clear to entities covered by the ADA their obligations to make their 
Web sites accessible. Despite the need for action, the Department 
appreciates the need to move forward deliberatively. Any regulations 
the Department adopts must provide specific guidance to help ensure Web 
access for individuals with disabilities without hampering innovation 
and technological advancement on the Web.

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 Web sites of public 
accommodations and public entities are accessible to people with 
disabilities or would otherwise be affected by regulations requiring 
Web site 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 Web 
site 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

[[Page 43465]]

regulatory requirements on the Web sites of public accommodations and 
State and local government entities.

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

    As previously mentioned, the Web Accessibility Initiative (WAI) of 
the World Wide Web Consortium (W3C[supreg]) 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 http://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 http://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 Web sites because it is not 
possible to satisfy all Level AAA criteria for some content. See 
W3C[supreg], Understanding WCAG 2.0: Understanding Conformance (Dec. 
2008), http://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html (last 
visited June 29, 2010).
    Standards for Web site accessibility also exist for Federal 
government agencies, which are required to make their Web sites 
accessible under section 508 of the Rehabilitation Act of 1973, 29 
U.S.C. 794(d) (section 508). Specifically, the Web sites 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 http://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 Web site 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 Web site 
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 Web sites, 
should the Department adopt performance standards instead of any set of 
specific technical standards for Web site 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 Web sites 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 Web sites 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 Web site or 
participating in a host's Web site--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 Web site users for personal, 
noncommercial use is not covered, even if that content is posted on the 
Web site 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 Web site 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 Web sites that are linked to its site, but that it 
does not operate or control. However, to the extent an entity requires 
users of its Web site to utilize another Web site in order to take part 
in its goods and services (e.g., payment for items on one Web site must 
be processed through another Web site), 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,

[[Page 43466]]

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 Web sites accessible? 
What is the ability of covered entities to make their Web sites 
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 Web 
sites that render compliance with accessibility requirements difficult 
or impossible?
    The Department has taken the position that covered entities with 
inaccessible Web sites 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 Web site. See Accessibility of State and Local Government Web 
sites to People with Disabilities, available at http://www.ada.gov/Web 
sites2.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 Web site 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 Web sites 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 Web sites?

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 Web sites 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 Web sites 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 Web sites will have to come into total 
compliance with any Web access requirements adopted by the Department. 
New pages on existing Web sites 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 Web sites because 
the Department recognizes that certain features on existing Web sites--
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 
Web sites 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 
Web sites or pages, the Department is considering having the Web site 
access requirement apply two years after the date of publication of the 
final rule. The Department is considering this period of time for 
existing Web sites because it recognizes that many Web sites 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 Web sites 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 Web sites)? Please provide as much detail and 
information as possible in support of your view.

E. Cost and Benefits of Web Site 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, http://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

[[Page 43467]]

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 Web site 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 Web site? What 
additional costs are associated with creating and maintaining an 
accessible Web site? 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 Web site access?
    Question 14. What are the benefits that can be anticipated from 
action by the Department to amend the ADA regulations to address Web 
site 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 Web site accessibility 
requirements? For example, would the costs of a requirement to provide 
captioning to videos cause covered entities to provide fewer videos on 
their Web sites?
    Question 16. Are there any other effective and reasonably feasible 
alternatives to making the Web sites 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 Web site 
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 
Web sites 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: July 21, 2010.
Thomas E. Perez,
Assistant Attorney General, Civil Rights Division.
[FR Doc. 2010-18334 Filed 7-22-10; 4:15 pm]
BILLING CODE 4410-13-P
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