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[Federal Register Volume 76, Number 236 (Thursday, December 8, 2011)]
[Proposed Rules]
[Pages 76640-76646]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31462]

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ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD

36 CFR Parts 1193 and 1194

[Docket No. 2011-07]
RIN 3014-AA37

Telecommunications Act Accessibility Guidelines; Electronic and 
Information Technology Accessibility Standards

AGENCY: Architectural and Transportation Barriers Compliance Board.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Architectural and Transportation Barriers Compliance Board 
(Access Board) is issuing this second Advance Notice of Proposed 
Rulemaking (ANPRM) to continue the process of updating its standards 
for electronic and information technology, which apply to federal 
agencies, and its guidelines for telecommunications accessibility, 
which apply to telecommunications manufacturers. The text of the 
proposed standards and guidelines under consideration by the Board is 
available on the Board's Web site (http://www.access-board.gov/508.htm). The Board invites the public to review and comment on all 
aspects of this notice and the proposed text, including the advantages 
and disadvantages of provisions, the organizational approach to 
presenting the standards and guidelines, alternative policies to those 
presented, and information on benefits and costs. After reviewing the 
comments received in response to this advance notice, the Board plans 
to issue a proposed rule seeking further public comment followed by a 
final rule.

DATES: Comments should be received by March 7, 2012.

ADDRESSES: You may submit comments, identified by docket number 2011-07 
or RIN number 3014-AA37, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments. Regulations.gov Docket 
ID is ATBCB-2011-0007.
     Email: board.gov">ictrule@access-board.gov. Include docket number 
2011-07 or RIN number 3014-AA37 in the subject line of the message.
     Fax: (202) 272-0081.
     Mail or Hand Delivery/Courier: Office of Technical and 
Information Services, Access Board, 1331 F Street NW., suite 1000, 
Washington, DC 20004-1111.

All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Timothy Creagan, Office of Technical 
and Information Services, Access Board, 1331 F Street NW., suite 1000, 
Washington, DC 20004-1111. Telephone number: (202) 272-0016 (voice); 
(202) 272-0074 (TTY). Electronic mail address: board.gov">creagan@access-board.gov.

SUPPLEMENTARY INFORMATION:

I. Regulatory History

    The (Section 508) Electronic and Information Technology 
Accessibility Standards (standards) were issued in December 2000, 65 FR 
80500 (December 21, 2000). The (Section 255) Telecommunications Act 
Accessibility Guidelines (guidelines) for telecommunications equipment 
and customer premises equipment were issued in February 1998, 63 FR 
5608 (February 3, 1998). The standards require that when developing, 
procuring, maintaining, or using

[[Page 76641]]

electronic and information technology, each federal department or 
agency must ensure, unless an undue burden would be imposed on the 
department or agency, that electronic and information technology 
(regardless of the type of medium) allows individuals with disabilities 
to have access to and use of information and data that is comparable to 
the access to and use of the information and data by others without 
disabilities. The standards include a definition of electronic and 
information technology, and technical and functional performance 
criteria for such technology. The Section 255 guidelines require 
telecommunications manufacturers to ensure that telecommunications 
equipment and customer premises equipment are designed, developed, and 
fabricated to be accessible to and usable by individuals with 
disabilities when it is readily achievable to do so. The term readily 
achievable is defined in the guidelines as easily accomplishable, 
without much difficulty or expense.
    Section 508 of the Rehabilitation Act of 1973, as amended, 29 
U.S.C. 794 (d) (Section 508) and the Telecommunications Act of 1996, 47 
U.S.C. 153, 255 (Section 255) require that the Access Board 
periodically review and, as appropriate, amend the standards and 
guidelines to reflect technological advances or changes in electronic 
and information technology or in telecommunications equipment and 
customer premises equipment. Once revised, the Board's standards and 
guidelines are made enforceable by other federal agencies. Section 
508(a)(3) of the Rehabilitation Act provides that within 6 months after 
the Access Board revises its standards the Federal Acquisition 
Regulatory Council shall revise the Federal Acquisition Regulation and 
each appropriate federal department or agency shall revise their 
procurement policies and directives, as necessary, to incorporate the 
revisions. Under Section 255 of the Telecommunications Act of 1996, the 
Federal Communications Commission has the authority to adopt 
regulations implementing Section 255 including adopting rules 
consistent with the Access Board's guidelines.
    Since the Board first issued the guidelines and the standards, 
technology has evolved and changed. Therefore, the Board decided to 
update and revise the guidelines and the standards together to address 
changes in technology and to make both documents consistent. The Board 
formed the Telecommunications and Electronic and Information Technology 
Advisory Committee (TEITAC) in 2006 to review the existing guidelines 
and standards and to recommend changes. TEITAC's 41 members comprised a 
broad cross-section of stakeholders. The stakeholders included 
representatives from industry, disability groups, standard-setting 
bodies in the U.S. and abroad, and government agencies. TEITAC also 
included representatives from the European Commission, Canada, 
Australia, and Japan. TEITAC recognized the importance of 
standardization across markets worldwide. It coordinated its work with 
standard-setting bodies in the U.S. and abroad, such as the World Wide 
Web Consortium (W3C). TEITAC members addressed a range of issues, 
including new or convergent technologies, market forces, and 
international harmonization.
    On April 3, 2008, TEITAC presented its report to the Board. The 
report recommended revisions to the Board's Section 508 standards and 
Section 255 guidelines. The report is available on the Board's Web site 
at http://www.access-board.gov/sec508/refresh/report/ report/.
    The Board developed an Advance Notice of Proposed Rulemaking (2010 
ANPRM) based on the TEITAC report. The ANPRM was published in the 
Federal Register in March 2010, 75 FR 13457 (March 22, 2010). The Board 
held two public hearings and received 384 comments on the 2010 ANPRM. 
This 2011 ANPRM is based on a review of those comments.
    The 2010 ANPRM also included a proposal to amend the Americans with 
Disabilities Act (ADA) Accessibility Guidelines to extend coverage of 
the guidelines to a variety of self-service transaction machines not 
previously covered by the guidelines. The Board plans to address this 
subject at a future date and has not included a proposal in this ANPRM 
to address such machines subject to the ADA.

II. Structure of the 2010 ANPRM

    The 2010 ANPRM contained proposed updates under consideration by 
the Board to the requirements for Section 508 and Section 255 and was 
organized into eleven chapters. The first two chapters were separate 
introductory chapters (508 chapter 1 and 255 chapter 1) outlining 
scoping, application, and definitions unique to each law. The remainder 
of the chapters comprised a common set of requirements. The ANPRM used 
the term ``Information and Communication Technology'' (ICT), 
recommended by TEITAC to describe electronic and information technology 
covered by Section 508 and telecommunications products, interconnected 
Voice over Internet Protocol (VoIP) products and Customer Premises 
Equipment (CPE) covered by Section 255. The new term which was defined 
in E111 and C109 is consistent with terms previously included in the 
standards and guidelines but it more accurately describes covered 
features of electronic and information technology, telecommunications 
and VoIP products, and CPE. The term ICT is widely used in the public 
sector and by most other countries. The functional performance criteria 
and technical requirements set forth in the 2010 ANPRM were intended to 
apply to ICT subject to either the Rehabilitation Act or the 
Telecommunications Act of 1996.
    508 Chapter 1 contained purpose and application provisions for 
Section 508 and explained how those provisions are applied to ICT 
subject to Section 508. The chapter explained how the provisions 
implement the requirement under Section 508 that federal agencies must 
ensure that the technology is accessible to people with disabilities, 
unless an undue burden would be imposed on the department or agency. 
The meaning of the term ``undue burden'' remains unchanged. Consistent 
with Section 1194.4 of the standards, undue burden means significant 
difficulty or expense to the agency after considering all the agency 
resources available to the program or component for which the product 
is being developed, procured, maintained, or used.
    255 Chapter 1 contained purpose and application provisions for 
Section 255 and how that is applied to telecommunications and 
interconnected VoIP products and CPE subject to Section 255. The 
chapter explained how the provisions implement the requirement under 
Section 255 that telecommunications manufacturers must ensure that 
telecommunications equipment and customer premises equipment are 
designed, developed, and fabricated to be accessible to and usable by 
individuals with disabilities when it is readily achievable to do so. 
An action that is ``readily achievable'' can be easily accomplished by 
a manufacturer without much difficulty or expense.
    Chapter 2 included functional performance criteria requiring ICT to 
provide access to all functionality in at least one of each of the 
eleven specified modes.
    Chapter 3 contained technical requirements applicable to features 
of ICT that are found across a variety of platforms, formats, and 
media. Chapters 4, 5, and 6 all contained technical requirements 
closely adapted from the Web Content Accessibility Guidelines (WCAG) 
2.0 Success Criteria which

[[Page 76642]]

were rephrased in mandatory language. Chapter 4 addressed platforms, 
applications, interactive content, and applications. Chapter 5 covered 
access to electronic documents and common interactive elements found in 
electronic content and Chapter 6 addressed access to audio and visual 
electronic content and to players of that content. Chapter 7 addressed 
hardware aspects of ICT, such as standard connections and reach ranges. 
Chapter 8 addressed ICT that has audio output functionality when that 
output is necessary to inform, alert, or transmit information or data. 
Chapter 9 addressed ICT that supports a real time simultaneous 
conversation. This conversation may be in an audio, text, or video 
format. Chapter 10 covered product support documentation and services.

III. Summary of Public Comments to the 2010 ANPRM

    Three hundred eighty-four comments were received during the comment 
period. Comments came from industry, federal and state governments, 
foreign and domestic companies specializing in information technology, 
disability advocacy groups, manufacturers of hardware and software, 
trade associations, institutions of higher education, research and 
trade organizations, accessibility consultants, assistive technology 
industry and related organizations, and concerned individuals who did 
not identify with any of these groups.
    In general, commenters agreed with the Board's approach to address 
the accessibility features of ICT and not discrete product types. The 
commenters also expressed strong support for the decision to follow the 
TEITAC recommendation to require harmonization with WCAG 2.0. In 
addition they strongly supported the Board's efforts to update the 
standards to address current technology. However, they raised concerns 
about the overall length of the document and its organization. Many 
commenters stated that it was unwieldy and difficult to use at close to 
100 pages. They reported that the organization of the material did not 
add to their understanding of how to apply the requirements. They 
indicated that the relationship of the chapters to one another was 
unclear because every chapter seemed to use the term ICT differently, 
based on the functions addressed by the chapter. Commenters noted that 
some chapters focused on functional features of accessibility and 
others addressed specific types of technology. They found that this 
inconsistency within the document made reading and comprehension 
difficult.
    Commenters from industry and government criticized the approach 
taken for harmonization with WCAG 2.0. The rephrasing of Success 
Criteria from WCAG 2.0 into regulatory language introduced subtle 
changes that called into question the suitability of the wealth of 
guidance material developed specifically for WCAG 2.0. Commenters in 
general were confused about how the Board distinguished between 
software and documents. Commenters were also confused about the 
emphasis given to some topics, which were addressed over an entire 
chapter, while other equally complex topics were addressed in a group 
of provisions. Many commenters also indicated that the use of 
advisories throughout the document was unclear and inconsistent, 
because some provisions had extensive advisories while others had none. 
Government and industry information technology professionals raised 
concerns about how some of the provisions could be implemented so that 
they could successfully determine if ICT is conformant. Persons 
responsible for procurements, as well as commenters representing 
individuals with disabilities questioned how conformance with 
provisions guaranteed actual access to and use of information and data 
by individuals with disabilities.
    Most commenters wanted clarification of the Board's approach to 
covering electronic content. In addition, many commenters asked for a 
clearer explanation of the relationship of the functional performance 
criteria to the technical requirements. In general, commenters 
criticized the provisions for closed functionality for a lack of 
substance which made the provisions vague and confusing. Overall, 
commenters generally favored the Board's approach to streamlining the 
exceptions to the technical and functional performance criteria. 
However, a significant number of commenters from government and 
industry strongly opposed removing the maintenance spaces exception for 
ICT located in spaces frequented only by service or maintenance 
personnel. Other commenters, many from government, expressed confusion 
over the reorganization of the ``incidental to a contract'' exception 
as a subset of a provision on federal contracts.

IV. Access Board Response to Public Comments

    Upon reviewing the comments, the Board sees that the 2010 ANPRM 
needed major revisions in terms of both structure and content. The 
Board also recognizes the need to obtain more guidance on certain 
issues from those affected by the requirements. At the same time, the 
Board is interested in harmonizing with standards efforts around the 
world in a timely way. Accordingly, the Board is now releasing this 
second Advance Notice of Proposed Rulemaking (2011 ANPRM) to seek 
further public comment on specific questions and to harmonize with 
contemporaneous standardization efforts underway by the European 
Commission.

V. Differences Between the 2010 ANPRM and the 2011 ANPRM

A. Structural Changes in the 2011 ANPRM

    The Board has made significant changes in response to public 
comments to the 2010 ANPRM. The 2011 ANPRM is more concise than the 
2010 ANPRM. It has six chapters instead of ten. The Board consolidated 
and streamlined provisions and consolidated advisories. The Board also 
removed scoping and application language from the chapters containing 
technical provisions and relocated them to new chapters at the 
beginning of the document. In addition, in response to concerns about 
an uneven approach taken in the 2010 ANPRM, where some chapters focused 
on features of products and others addressed specific types of 
products, the Board standardized the approach by removing references to 
types of products while focusing instead on specific features of 
products. The Board revised the overall structure of the functional 
performance criteria so that the provisions have parallel structure. 
Further, the Board grouped technical requirements for similar functions 
together in the same chapter to improve readability and usability. The 
Board also removed specific requirements relating to web and non-web 
electronic content, documents and user applications and referenced WCAG 
2.0 instead. This revised text is consistent with and reflects the 
public comments received. The Board focused on making this draft as 
accurate and succinct as possible to improve reader comprehension.

B. Major Issues Identified and Addressed in the 2011 ANPRM

1. Relationship Between Functional Performance Criteria and Technical 
Provisions
    In Section E103.5 of the 2010 ANPRM the Board proposed language to 
clarify the relationship between the functional performance criteria 
and the technical provisions. The Board deemed this

[[Page 76643]]

clarification to be warranted because the 508 standards currently do 
not clearly specify when agencies must use the technical provisions and 
when they must use the functional performance criteria. Subsection 
E103.5.1 of the 2010 ANPRM proposed that when an agency develops, 
procures, maintains, or uses ICT, it first must look to the technical 
provisions. If the technical provisions were fully satisfied, then the 
agency did not need to apply the functional performance criteria. 
Consequently, the 2010 ANPRM gave the technical criteria greater weight 
than the functional performance criteria since the functional 
performance criteria were used only when the procurement needs of the 
agency were not fully met by the technical provisions. While the Board 
intended for the approach taken in the 2010 ANPRM to reflect current 
practice, commenters objected to this approach, citing the concern that 
procurements that satisfy only the technical requirements do not 
necessarily provide access to information and data for individuals with 
disabilities.
    The Board appreciates this concern and has redefined the 
relationship between the functional performance criteria and the 
technical provisions in section E204 of the 2011 ANPRM so that ICT must 
conform to the functional performance criteria, even when technical 
provisions are met. This is a significant change from the 2010 ANPRM, 
which did not require use of the functional performance criteria at all 
when the technical provisions fully addressed the product being 
procured. In subsection E101.2 of the 2011 ANPRM the Board retains the 
approach from subsections E103.5.3 and E106 of the 2010 ANPRM of using 
the functional performance criteria to evaluate whether using the 
equivalent facilitation provision provides substantially equivalent or 
greater access to and use of a product for individuals with 
disabilities. A covered entity has the option to apply the concept of 
equivalent facilitation in order to achieve conformance with the intent 
of the technical requirements, provided that the alternative affords 
individuals with disabilities substantially equivalent or greater 
access than would result from compliance with the technical 
requirements.
2. Functional Performance Criterion for Limited Vision
    In subsection 202.3 in the 2010 ANPRM, the functional performance 
criterion for limited vision was changed to require a visual mode of 
operation which did not require visual acuity greater than 20/200 or a 
field of vision greater than 20 degrees. Commenters criticized this new 
approach as inadequate and technically incorrect. Organizations 
representing persons with disabilities disagreed with the 20/200 
requirement, stating that it did not sufficiently address the needs of 
users with severe low vision. Industry groups noted that the 20/200 
requirement contradicted several technical requirements. Both groups 
indicated that the approach taken did not address features which could 
actually improve accessibility for persons with limited vision. In 
addition, as written, only one feature had to be provided for each mode 
of operation. Commenters stated that this approach was too limited.
    In subsection 302.2 in the 2011 ANPRM the Board has made several 
changes to the functional performance criterion for limited vision in 
response to these comments. A functional approach which more closely 
addresses the needs of users with limited vision replaces the approach 
which specified a measurement for visual acuity. The functional 
performance provision for limited vision now requires that when a 
visual mode of operation is provided, ICT must provide at least one 
mode of operation that magnifies, one mode that reduces the field of 
vision, and one mode that allows user control of contrast. The 
provision also states that these modes must be supplied in the same 
ICT, but may be supplied either directly or through compatibility with 
assistive technology.
3. Covered Electronic Content: Official Communications
    The 2010 ANPRM covered all electronic content used by agencies 
where it was an official communication by the agency to federal 
employees or to members of the public. This approach attempted to 
clarify the approach in the current Section 508 standards. Section 508 
requires that agencies ensure that individuals with disabilities have 
access to and use of information and data that is comparable to the 
access to and use of information and data by others without 
disabilities. Arguably, all electronic content developed, procured, 
maintained, or used by federal agencies is covered by the Section 508 
standards because the standards do not limit the application of the 
requirements for access to and use of information and data to certain 
types of communication by an agency. Subsection E103.3.1 of the 2010 
ANPRM proposed to cover electronic content only to the extent that it 
was an official agency communication. Commenters, however, disagreed 
strongly with this approach because, in their view, all communications 
by an agency are in some way official business of the agency. 
Consequently, no electronic content would be exempt. They found this to 
be overbroad with considerable potential cost in relation to the 
benefit. Because this requirement potentially would cover all 
electronic content created by an agency, commenters feared that it 
would require each employee to be capable of creating accessible 
content for all of his or her communications. If all employees were 
required to produce accessible formats for all their work, commenters 
argued that employees would need considerable training. Commenters 
cautioned that this practice would consume a large portion of agency 
resources without necessarily resulting in more accessibility.
    In response, the Board proposes a more limited approach in section 
E205 of the 2011 ANPRM. Coverage of electronic content is limited to 
nine specific categories of information communicated by agencies to 
employees or to members of the general public during the conduct of 
official agency business, as determined by the agency mission. Covered 
electronic content includes the following: content that is public 
facing; content that is broadly disseminated within the agency; letters 
adjudicating any cause within the jurisdiction of the agency; internal 
and external program and policy announcements; notices of benefits, 
forms, questionnaires and surveys; emergency notifications; formal 
acknowledgements; and educational and training materials. There are two 
exceptions to covered content: archival copies stored or retained 
solely for archival purposes to preserve an exact image of a hard copy, 
and draft versions of documents.
4. Closed Functionality
    Section 302 of the 2010 ANPRM substituted the term ``closed 
functionality'' for ``self-contained, closed products''. The standards 
permitted ICT to have closed functionality and required it to be 
accessible to and usable by individuals with disabilities without 
requiring the attachment of assistive technology. Commenters did not 
object to the new terminology of ``closed functionality'' but asked for 
more detail and clarity in the provisions. In section 402 of the 2011 
ANPRM, the Board now provides specific requirements for ICT with closed 
functionality to ensure that it is accessible to individuals with 
disabilities. These features include the requirement that ICT with 
closed functionality must be speech enabled.

[[Page 76644]]

The term ``speech enabled'' means speech output. These proposed 
requirements are derived from Section 707, Automatic Teller Machines 
and Fare Machines, in the ADA and ABA Accessibility Guidelines and the 
2010 Department of Justice ADA Standards for Accessible Design.
5. Exceptions: Maintenance Spaces and ``Incidental to a Contract''
    In the 2010 ANPRM, the Board reorganized the exceptions in the 
current standards and recommended deleting three of them as 
unnecessary. The three exceptions deleted by the Board were 36 CFR 
1194.3(c) which stated that assistive technology need not be provided 
at all workstations for all federal employees; 36 CFR 1194.3(d) which 
provided that where agencies provide information and data to the public 
through accessible ICT, the accessible ICT need only be provided at the 
intended public location; and 36 CFR 1194.3(f), which stated that 
products located in spaces used only by service personnel for 
maintenance and repair need not be accessible. In an effort to simplify 
the wording, the Board rewrote the exception at 36 CFR 1194.3(b) 
permitting ICT acquired by a contractor incidental to a contract to not 
be accessible.
    The Board received a number of comments about these proposed 
changes. Most commenters on this issue supported removing two of the 
three proposed exceptions. Only the proposed removal of the exception 
for ICT located in maintenance spaces generated negative comments. 
Commenters strongly objected to the Board's assertion that many 
functions could be accessed remotely, noting that there were still many 
instances when some functions could only be performed in a maintenance 
space on an infrequent basis. They stated that functions related to 
maintenance, repair, or occasional monitoring of equipment should not 
be required to be accessible. The Board has restored this exception in 
subsection E202.4 of the 2011 ANPRM. The Board revised the language 
from the current Section 508 standard to make it clear that there are 
some functions which are only capable of being performed on-site in a 
maintenance space occupied solely by service personnel. These functions 
cannot be accessed remotely and include maintenance, repair, or 
occasional monitoring of equipment.
    The Board's efforts at streamlining the exception for ICT purchased 
by a contractor ``incidental to a contract'' received many critical 
comments. The rewritten exception deleted the phrase ``incidental to a 
contract'' and was relocated to a new section (E103.4.2) relating to 
federal contracts. Commenters expressed confusion as to the purpose of 
the new section and did not recognize the rewritten exception. One 
federal procurement official commented that the phrase ``incidental to 
a contract'' was more understandable and usable, particularly by 
contracting officials, who were most affected by this language. In 
response to comments, the Board has restored the original language from 
the current Section 508 standards in the 2011 ANPRM at subsection 
E202.3.
6. WCAG 2.0 Incorporation by Reference Rather Than Harmonization
    In the 2010 ANPRM, the Board sought public comment on the 
recommendation of the TEITAC for international harmonization. The 2010 
ANPRM included most WCAG 2.0 Level A and Level AA Success Criteria but 
restated them in mandatory terms more appropriate for regulatory 
language. In the current 508 Standards, most of the provisions in 36 
CFR 1194.22 mirror those of WCAG 1.0. The 2010 ANPRM (subsections E107 
and C106) also requested comments on the option to use WCAG 2.0. 
Commenters noted that deviations from WCAG 2.0 phrasing introduced 
ambiguities, particularly for those familiar with WCAG 2.0.
    The current 508 Standards provide discrete requirements for 
software (36 CFR 1194.21) and web content (36 CFR 1194.22). As noted in 
the TEITAC report and the 2010 ANPRM preamble, such distinctions are 
increasingly arbitrary. The 2010 ANPRM attempted to retain some of this 
separation by having one chapter of simpler provisions which were 
applicable to document authors and a chapter of more complex provisions 
which were applicable only to software developers. Provisions related 
to multimedia were grouped in a third distinct chapter. Commenters felt 
that this separation seemed more arbitrary than useful.
    Both of the above weaknesses have been addressed in the 2011 ANPRM. 
Proposed subsections E205.1 and C203.1 incorporate WCAG 2.0 by 
reference, so there is no paraphrasing. WCAG 2.0 is written to be 
technology neutral, so it is straightforward to apply the WCAG 2.0 
Success Criteria and Conformance Requirements to electronic documents 
and applications, regardless if those documents and applications are 
rendered within a web browser or within a native application outside 
the web browser environment.
    Referencing WCAG 2.0 is consistent with Office of Management and 
Budget (OMB) Circular A-119 \1\ which directs agencies to use voluntary 
consensus standards in lieu of government-unique standards. The primary 
benefit is economic in that this practice reduces costs to the 
government associated with developing its own standards and also 
decreases the cost of goods and services procured by the government. 
According to the Web Accessibility Initiative \2\, fragmentation of 
standards is an economic issue for government, businesses, and web 
developers. In this case, incorporation by reference also directly 
serves the best interests of people with disabilities because 
harmonization of standards can help accelerate the spread of 
accessibility across the web. The accessibility of the web is essential 
to enable the participation of people with disabilities in an 
information society.
---------------------------------------------------------------------------

    \1\ Memorandum for Heads of Executive Departments and Agencies, 
Circular No. A-119 Revised, February 10, 1998, http://www.whitehouse.gov/omb/circulars_a119.
    \2\ Why Standards Harmonization is Essential to Web 
Accessibility (draft), W3C Web Accessibility Initiative, Education & 
Outreach Working Group, June 28, 2011, http://www.w3.org/WAI/Policy/harmon.html.
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    The Board's proposal to reference WCAG 2.0 as the standard for 
Section 508 and Section 255 web accessibility is also consistent with 
the Department of Transportation's proposed approach in its 
supplemental notice of proposed rulemaking addressing, among other 
things, the accessibility of air carrier and ticket agent Web sites. 76 
FR 59307 (September 26, 2011).
    The Board's proposal to incorporate WCAG 2.0 by reference is 
consistent with activity by other international standards 
organizations.\3\ Australia \4\, Canada \5\, and New Zealand \6\ 
already make direct reference to WCAG 2.0. The European Commission 
references WCAG 2.0 in its current working draft (under ``Mandate 
M376'' \7\). WCAG 2.0 also serves as the basis for web accessibility 
standards in Germany (under ``BITV 2''), France (under

[[Page 76645]]

``RGAA 2.2.1'') and Japan (under ``JIS X 83141'') and has so far 
generated eight formal authorized translations.\8\
---------------------------------------------------------------------------

    \3\ Policies Relating to Web Accessibility, W3C WAI, August 25, 
2006, http://www.w3.org/WAI/Policy/.
    \4\ World Wide Web Access: Disability Discrimination Act 
Advisory Notes, Australian Human Rights Commission, October 2010, 
http://www.hreoc.gov.au/disability_rights/standards/www_3/www_3.html.
    \5\ Standard on Web Accessibility, Treasury Board of Canada 
Secretariat, August 1, 2011, http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?section=text&id=23601.
    \6\ New Zealand Government Web Standards, Government Information 
Services, Department of Internal Affairs, November 15, 2011, http://webstandards.govt.nz/standards/nzgws-2/.
    \7\ European Accessibility Requirements for Public Procurement 
of Products and Services in the ICT Domain, European Commission 
(EC), November 2, 2011, http://www.mandate376.eu/.
    \8\ Translations of W3C Documents, World Wide Web Consortium, 
retrieved November 23, 2011, http://www.w3.org/2005/11/Translations/Lists/ListAuth.html.
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7. Clarification of Documentation Requirement for Undue Burden
    In the 2010 ANPRM, the Board proposed clarifications to the 
circumstances when documentation for the basis of a determination of 
undue burden is required, proposing that documentation must be provided 
in cases of development, maintenance, or use of ICT, as well as 
procurement. This was a change from 36 CFR 1194.2(2) which only 
discussed documentation of an undue burden determination during 
procurement of ICT. 29 U.S.C. 794d(a)(4) requires that ``documentation 
by the department or agency supporting the procurement shall explain 
why compliance creates an undue burden''. 29 U.S.C. 794d(a)(1)(B) 
provides that federal agencies must provide alternative means of access 
to information and data to individuals with disabilities when 
development, procurement, maintenance, or use of electronic and 
information technology would impose an undue burden. The TEITAC 
recommended that the documentation requirement for undue burden be 
clarified. Accordingly, the Board added subsection E104.3 in the 2010 
ANPRM to require documentation of undue burden determinations in the 
procurement, development, maintenance and use of ICT. The Board 
received only two comments, both made by one individual with a 
disability, in response to this provision. Both comments requested 
clarification of the factors to be addressed in undue burden 
documentation. In the 2011 ANPRM, the Board has clarified the factors 
used as the basis for a determination of undue burden in subsection 
E202.5.1, and retained the requirement for documentation in subsection 
E202.5.2.
    The Board believes that requiring documentation of undue burden 
determinations for the use, maintenance, and development of ICT in 
addition to procurements will result in greater consistency and 
conformance with the 508 standards. These changes are consistent with 
the language of the statute, incorporate current practices, and 
encourage consistency in the documentation of undue burden 
determinations.

VI. Questions

A. General

    In addition to the major policy questions discussed above, this 
ANPRM includes some non-substantive editorial changes to the first 
ANPRM that are not detailed in this discussion. In addition to the 
questions below, the Board seeks general comments on the provisions in 
this document, including the extent to which they are necessary, their 
advantages and disadvantages, their quantitative and qualitative 
benefits and costs, and recommended alternatives. The Board also 
invites the public to identify any gaps in the draft guidelines and 
standards, and approaches to addressing such gaps.

B. Questions

    Question 1: As discussed above, in response to public comments, the 
Board has made significant changes to the 2010 ANPRM by consolidating, 
streamlining, and removing provisions and advisories to improve 
readability, comprehensibility, and usability. The Board seeks comment 
on this new approach.
    Question 2: As noted above, the Board has changed the approach 
taken towards covered electronic content (E205.1) in the 2011 ANPRM. 
The proposed requirement in Section E205.1 requires electronic content 
falling into certain categories of official communications by federal 
agencies to be accessible. Should additional or different types of 
communications be included in this subsection? What are the benefits 
and costs of this approach? Would such an approach have any unintended 
consequences on federal agency communications?
    Question 3: In the discussion above, the Board has changed the 
approach to the functional performance criteria for limited hearing 
(302.5) and limited vision (302.2) in the 2011 ANPRM to require three 
specific features to be provided. These features may be provided either 
directly or through the use of assistive technology. The Board requests 
information on whether the features listed in these functional 
performance requirements will provide accessibility to users with 
limited vision or hearing, or whether there are other features which 
should be required in addition or instead. What are the costs and 
benefits associated with requiring the three features?
    Question 4: As noted above, the 2011 ANPRM has changed the 
relationship between the functional performance criteria and the 
technical provisions (E204.1). The Board seeks comment on the proposed 
approach requiring conformance with the functional performance criteria 
at all times, even when the technical provisions are met. What are the 
costs and benefits associated with this approach?
    Question 5: The 2011 ANPRM requires Web sites to be accessible to 
individuals with disabilities by conforming to WCAG 2.0. WCAG 2.0 
allows a non-conforming (i.e., inaccessible) Web page to be considered 
compliant if there is an accessible mechanism for reaching an 
accessible version of the Web page that is up to date and contains the 
same information and functionality as the inaccessible Web page. A web 
page that meets all these criteria qualifies as a ``conforming 
alternate version'' and is intended to provide individuals with 
disabilities equivalent access to the same information and 
functionality as the non-conforming web page. However, unrestricted use 
of conforming alternate versions may facilitate the emergence of two 
separate Web sites: One for individuals with disabilities and another 
for individuals without disabilities. Alternatively, restricting the 
use of conforming alternate versions may result in significant costs to 
federal departments and agencies by limiting their options for 
providing accessible content.
    Should the Board restrict the use of conforming alternate versions? 
The Board seeks comments on whether allowing inaccessible content, even 
with conforming alternate versions, negatively affects the usability 
and accessibility of Web sites by individuals with disabilities. The 
Board also requests comments on the difficulty or costs that may be 
incurred if federal departments or agencies are not free to use 
conforming alternate versions of content along with inaccessible 
content.
    Question 6: As noted above, Chapter 4 addresses features of ICT 
which may be used to communicate or produce electronic content or 
retrieve information or data. Some of the sections addressing these 
features of ICT include but are not limited to: Two Way Voice 
Communication (408), Operable Parts (407), and Standard Connections 
(406). The Board seeks comment on whether it should provide additional 
provisions to address accessibility concerns associated with features 
of ICT, such as content displayed on small screens, which are not 
otherwise addressed. For example the Board is considering whether to 
allow an exception to subsection 402.4 for text size for ICT which has 
a smaller screen. Should the Board require a minimum or maximum screen 
size to display content? Should a minimum text size be

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specified for display on a screen? When ICT communicates or produces 
electronic content or retrieves information or data, are there 
additional unique limiting features that are not adequately addressed 
in these provisions, such as screen and text size and battery life, 
which the Board should address?
    Question 7: The 2011 ANPRM has retained the approach of addressing 
features of ICT which make the ICT accessible and usable to individuals 
with disabilities. Are there some features or technologies addressed in 
the ANPRM that are obsolete or that have changed in a way that makes 
the proposed requirements irrelevant or difficult to apply? If so, 
commenters should recommend revisions to those section(s) of the ANPRM 
that should be updated and, if possible, recommend specific changes 
that would address the needs of individuals with disabilities and the 
unique characteristics of the technology concerned.
    Question 8: Some modern touch screen devices, such as versions of 
some smartphones and tablets, have proved popular with people who are 
blind, despite not having keys which are tactilely discernible. Should 
the provision requiring that input controls be tactilely discernible 
(407.3) be revised to allow for such novel input methods? Should the 
Board add an exception to 407.3 to allow for input controls which are 
not tactilely discernible when access is provided in another way? If 
so, how should access be addressed when the controls are not tactilely 
discernible? Should a particular technology or method of approach be 
specified?
    Question 9: As discussed above, the subsection for WCAG 2.0 
conformance (E207.2) for user interface components and content of 
platforms and applications is intended to set a single standard for 
user interfaces, without regard to underlying rendering mechanisms, 
such as web browsers, operating systems, or platforms. Is applying the 
WCAG 2.0 Success and Conformance criteria to electronic documents and 
applications outside the web browser environment sufficient and clear 
to users, or should the Board provide further clarification? Are there 
other accessibility standards more applicable to user interface 
components and content of platforms and applications than WCAG 2.0 that 
the Board should reference?

Nancy Starnes,
Chair.
[FR Doc. 2011-31462 Filed 12-7-11; 8:45 am]
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