A. Purpose and Legal Authority

In this final rule, the Access Board is updating its existing Electronic and Information Technology Accessibility Standards under section 508 of the Rehabilitation Act of 1973, (“508 Standards”), as well as our Telecommunications Act Accessibility Guidelines under Section 255 of the Communications Act of 1934 (“255 Guidelines”). Given the passage of nearly two decades since their issuance, the existing 508 Standards and 255 Guidelines are in need of a “refresh” in several important respects. This final rule is intended to, among other things, address advances in information and communication technology that have occurred since the guidelines and standards were issued in 1998 and 2000 respectively, harmonize with accessibility standards developed by standards organizations worldwide in recent years, and ensure consistency with the Board’s regulations that have been promulgated since the late 1990s. The Revised 508 Standards and 255 Guidelines support the access needs of individuals with disabilities, while also taking into account the costs of providing accessible information and communication technology to Federal agencies, as well as manufacturers of telecommunications equipment and customer premises equipment.

The final rule also reflects a significantly revamped organizational structure relative to the existing standards and guidelines. In sum, the final rule eliminates 36 CFR part 1193 (which formerly housed the existing 255 Guidelines) and substantially revises 36 CFR 1194 by replacing the existing 508 Standards with two regulatory provisions—§§ 1194.1 and 1194.2—that direct readers to the four appendices accompanying part 1194, which, in turn, set forth the scoping and technical requirements for the Revised 508 Standards and 255 Guidelines. Appendix A provides general application and scoping for Section 508, while Appendix B does likewise for Section 255. Appendix C contains seven separate chapters setting forth the functional performance criteria and technical accessibility standards that apply to both 508-covered and 255-covered ICT. These chapters are, generally speaking, broken down by functional area (e.g., functional performance criteria, hardware, software, support documentation and services). Lastly, Appendix D republishes the existing 508 Standards, which, as discussed below, may be needed to evaluate Section 508-covered existing (legacy) ICT under the safe harbor provision.

In this preamble, the Board refers to provisions in the Revised 508 Standards and 255 Guidelines by their new section numbers under this final rule: E101–E103 (508 Chapter 1: Application and Administration); E201–E208 (508 Chapter 2: Scoping Requirements); C101–C103 (255 Chapter 1: Application and Administration); C201–C206 (255 Chapter 2: Scoping Requirements); 301–302 (Chapter 3: Functional Performance Criteria); 401–415 (Chapter 4: Hardware); 501–504 (Chapter 5: Software); 601–603 (Support Documentation and Services); and 701–702 (Chapter 7: Referenced Standards).

Additionally, the term “information and communication technology” (ICT) is used widely throughout this preamble. Unless otherwise noted, it is intended to broadly encompass electronic and information technology covered by Section 508, as well as telecommunications products, interconnected Voice over Internet Protocol (VoIP) products, and Customer Premises Equipment (CPE) covered by Section 255. Examples of ICT include computers, information kiosks and transaction machines, telecommunications equipment, multifunction office machines, software, Web sites, and electronic documents.

1. Legal Authority for the Revised 508 Standards

Section 508 of the Rehabilitation Act of 1973 (hereafter, “Section 508”), as amended, mandates that Federal agencies “develop, procure, maintain, or use” ICT in a manner that ensures Federal employees with disabilities have comparable access to, and use of, such information and data relative to other Federal employees, unless doing so would impose an undue burden. 29 U.S.C. 794d. Section 508 also requires Federal agencies to ensure that members of the public with disabilities have comparable access to publicly-available information and services unless doing so would impose an undue burden on the agency. Id. In accordance with section 508(a)(2)(A), the Access Board must publish standards that define electronic and information technology along with the technical and functional performance criteria necessary for accessibility, and periodically review and amend the standards as appropriate. When the Board revises its existing 508 Standards (whether to keep up with technological changes or otherwise), Section 508 mandates that, within six months, both the Federal Acquisition Regulatory Council (FAR Council) and Federal agencies incorporate these revised standards into their respective acquisition regulations and procurement policies and directives. Thus, with respect to procurement-related matters, the Access Board’s 508 Standards are not self-enforcing; rather, these standards take legal effect when adopted by the FAR Council.

2. Legal Authority for 255 Guidelines

Section 255 of the Communications Act (hereafter, “Section 255”), requires telecommunications equipment and services to be accessible to, and usable by, individuals with disabilities, where readily achievable. 47 U.S.C. 255. “Readily achievable” is defined in the statute as “easily accomplishable and able to be carried out without much difficulty or expense.” Id. In determining whether an access feature is readily achievable, the Federal Communications Commission (FCC), which has exclusive implementation and enforcement authority under Section 255, has directed telecommunications equipment manufacturers and service providers to weigh the nature and cost of that feature against the individual company’s overall financial resources, taking into account such factors as the type, size, and nature of its business operation. Section 255 tasks the Access Board, in conjunction with the FCC, with the development of guidelines for the accessibility of telecommunications equipment and customer premises equipment, as well as their periodic review and update. The FCC, however, has exclusive authority under Section 255 to issue implementing regulations and carry out enforcement activities. Moreover, when issuing implementing regulations, the FCC is not bound to adopt the Access Board’s guidelines as its own or to use them as minimum requirements.

B. Summary of Key Provisions

The Revised 508 Standards and 255 Guidelines replace the current product-based regulatory approach with an approach based on ICT functions. The revised technical requirements, which are organized along the lines of ICT functionality, provide requirements to ensure that covered hardware, software, electronic content, and support documentation and services are accessible to people with disabilities. In addition, the revised requirements include functional performance criteria, which are outcome-based provisions that apply in two limited instances: when the technical requirements do not address one or more features of ICT or when evaluation of an alternative design or technology is needed under equivalent facilitation.

Some of the key provisions and updates reflected in the Revised 508 Standards and 255 Guidelines (relative to the existing standards and guidelines) include:

1. New Regulatory Approach and Format

Technological advances over the past two decades have resulted in the widespread use of multifunction devices that called into question the ongoing utility of the product-by-product approach used in the Board’s existing 508 Standards and 255 Guidelines. Consequently, one of the primary purposes of the final rule is to replace the current product-based approach with requirements based on functionality, and, thereby, ensure that accessibility for people with disabilities keeps pace with advances in ICT. To ensure that compliance under both laws, to the maximum extent possible, can be measured against a common set of technical requirements, the implementing regulations have been consolidated into a single part: 36 CFR part 1194. The two sections in this part (§§ 1194.1 and 1194.2), in turn, direct readers to the four separate appendices (Appendices A–D) that set forth the scoping and technical requirements under Sections 508 and 255, respectively. As discussed below, this is a new organizational format for the 508 Standards and 255 Guidelines that mirrors the formatting of other standards and guidelines issued by the Access Board over the past decade.

The new organizational format in the Revised 508 Standards and 255 Guidelines—which sets forth scoping and technical requirements in four appendices—is modeled after the regulatory approach first used Access Board’s 2004 Americans with Disabilities Act (ADA) and Architectural Barriers Act (ABA) Accessibility Guidelines. Appendix A applies only to Section 508-covered ICT and consists of 508 Chapter 1, which sets forth general application and administration provisions, while 508 Chapter 2 contains scoping requirements (which, in turn, prescribe which ICT – and, in some cases, how many – must comply with the technical specifications). Appendix B, which applies to 255-covered ICT only, is organized similarly with 255 Chapter 1 setting forth general application and administration provisions and 255 Chapter 2 containing scoping requirements. Appendix C sets forth technical specifications that apply equally to ICT covered under Sections 508 or 255. Appendix C includes five chapters, each of which (with the exception of the final chapter) address a separate ICT functional area. These chapters are: Chapter 3: Functional Performance Criteria; Chapter 4: Hardware; Chapter 5: Software; Chapter 6: Support Documentation and Services; and Chapter 7: Referenced Standards. Lastly, in Appendix D, the existing 508 Standards are republished in full (albeit with a revised section numbering system) for reference when evaluating Section 508-covered existing (legacy) ICT under the “safe harbor” provision. See discussion infra Section IV.B (Summary of Comments and Responses on Other Aspects of the Proposed Rule – 508 Chapter 2: Scoping Requirements – E202 General Exceptions).

2. Broad Application of Web Content Accessibility Guidelines 2.0

The Revised 508 Standards and 255 Guidelines incorporate by reference the Web Content Accessibility Guidelines (WCAG) 2.0, a globally-recognized and technologically-neutral set of accessibility guidelines for Web content. For Section 508-covered ICT, all covered Web and non-Web content and software – including, for example, Web sites, intranets, word processing documents, portable document format documents, and project management software – is required, with a few specific exceptions, to conform to WCAG 2.0’s Level A and Level AA Success Criteria and Conformance Requirements. By applying a single set of requirements to Web sites, electronic documents, and software, the revised requirements adapt the existing 508 Standards to reflect the newer multifunction technologies (e.g., smartphones that have telecommunications functions, video cameras, and computer-like data processing capabilities) and address the accessibility challenges that these technologies pose for individuals with disabilities. For Section 255-covered ICT, electronic content and software that is integral to the use of telecommunications and customer premise equipment is required to conform to WCAG 2.0’s Level A and Level AA Success Criteria and Conformance Requirements. There are several exceptions related to non-Web documents and software.

3. Harmonization with International Standards

From the outset, one of the Access Board’s primary goals in this rulemaking has been to increase harmonization with international standards relating to ICT accessibility that have been developed worldwide over the past decade. Some of these standards (such as WCAG 2.0) are incorporated by reference in the Revised 508 Standards and 255 Guidelines. For other standards (such as EN 301 549, which is the European accessibility standard for public ICT procurement), harmonization comes in the form of ensuring that the relevant accessibility specifications in such standard and the final rule can both be met simultaneously without conflict. Harmonization with international standards and guidelines creates a larger marketplace for accessibility solutions, thereby attracting more offerings and increasing the likelihood of commercial availability of accessible ICT options.

4. Delineation of covered electronic “content”

The Revised 508 Standards specify that all types of public-facing content, as well as nine categories of non-public-facing content that communicate agency official business, have to be accessible, with “content” encompassing all forms of electronic information and data. The existing standards require Federal agencies to make electronic information and data accessible, but do not delineate clearly the scope of covered information and data. As a result, document accessibility has been inconsistent across Federal agencies. By focusing on public-facing content and certain types of agency official communications that are not public facing, the revised requirements bring needed clarity to the scope of electronic content covered by the 508 Standards and, thereby, help Federal agencies make electronic content accessible more consistently.

5. Expanded interoperability requirements

The existing standards require ICT to be compatible with assistive technology – that is, hardware or software that increases or maintains functional capabilities of individuals with disabilities (e.g., screen magnifiers or refreshable braille displays). However, in the past the existing requirement resulted in ambiguity of application. For example, some agencies interpreted the provisions of existing 36 CFR § 1194.21 (which addresses software applications and operating systems) as applicable to assistive technology itself. The ensuing confusion led, in some cases, to unnecessary delay in procurements intended to provide reasonable accommodations to employees under Section 501, creating a hardship for both agencies and their employees with disabilities. The final rule provides more specificity about how operating systems, software development toolkits, and software applications should interact with assistive technology. The final rule also specifically exempts assistive technology from the interoperability provisions. The Board expects the final rule to improve software interoperability with assistive technology, allowing users better access to the functionalities that ICT products provide.

6. Extended Compliance Date and Incorporation of Safe Harbor Provision for Section 508-Covered Legacy ICT

Federal agencies will have one year from publication of this final rule to comply with the Revised 508 Standards. This extended period for compliance is responsive to some agencies’ concerns about the time it will take them to make ICT compliant with the Revised 508 Standards. In addition, the Revised 508 Standards include a “safe harbor” provision for existing (i.e., legacy) ICT. Under this safe harbor, unaltered, existing ICT (including content) that complies with the existing 508 Standards need not be modified or upgraded to conform to the Revised 508 Standards. This safe harbor applies on an element-by-element basis in that each component or portion of existing ICT is assessed separately. Corresponding definitions have also been added for “existing ICT” and “alteration.” By incorporating a safe harbor for legacy ICT into the Revised 508 Standards provision, the Board is being responsive to agencies’ concerns about the potential resources required to remediate existing ICT, including agency Web sites or other public-facing legacy documents. Notably, the extended compliance date and safe harbor provision apply only to Section 508-covered ICT; these provisions do not apply to telecommunications equipment and customer premises equipment covered by Section 255. Since compliance with the Revised 255 Guidelines is not required unless and until they are adopted by the FCC, matters addressed in these two provisions fall within the commission’s province.

C. Summary of Final Regulatory Impact Analysis

Consistent with the obligation under Executive Orders 12866 and 13563 that Federal agencies promulgate regulations only upon a reasoned determination that benefits justify costs, the final rule has been evaluated from a benefit-cost perspective in a final regulatory impact analysis (Final RIA) prepared by the Board’s consulting economic firm. The focus of the Final RIA is to define and, where possible, quantify and monetize the potential incremental benefits and costs of the Revised 508 Standards and 255 Guidelines. We summarize its methodology and results below. A complete copy of this regulatory assessment is available on the Access Board’s Web site (https://www.access-board.gov/), and also on the Federal Government’s online rulemaking portal (https://www.regulations.gov/).

To estimate likely incremental compliance costs attributable to the final rule, the Final RIA estimates, quantifies, and monetizes costs in the following broad areas: (1) costs to Federal agencies and contractors related to policy development, employee training, development of accessible ICT, evaluation of ICT, and creation of accessible electronic documents; (2) costs to Federal agencies of ensuring that speech-output enabled hardware with closed functionality has braille instructions (e.g., small braille label or sign) indicating how to initiate the speech mode of operation; and (3) costs to manufacturers of telecommunications equipment and customer premises equipment of ensuring that their respective Web sites and electronic support documentation conform to accessibility standards, including WCAG 2.0.

On the benefits side, the Final RIA estimates likely incremental benefits by monetizing the value of three categories of benefits expected to accrue from the Revised 508 Standards: (a) increased productivity of Federal employees with certain disabilities who are expected to benefit from improved ICT accessibility; (b) time saved by members of the public with certain disabilities when using more accessible Federal Web sites; and (c) reduced phone calls to Federal agencies as members of the public with certain disabilities shift their inquiries and transactions online due to improved accessibility of Federal Web sites. The Final RIA, for analytical purposes, defines the beneficiary population as persons with vision, hearing, speech, learning, and intellectual disabilities, as well as those with manipulation, reach, or strength limitations. The Final RIA does not formally quantify or monetize benefits accruing from the Revised 255 Guidelines due to insufficient data and methodological constraints.

Table 1 below summarizes the results from the Final RIA with respect to the likely monetized benefits and costs, on an annualized basis, from the Revised 508 Standards and 255 Guidelines. All monetized benefits and costs are incremental to the applicable baseline, and were estimated for a 10-year time horizon (starting in 2018 since the final rule requires Federal agencies to comply one year after its publication) and converted to annualized values using discount rates of 7 and 3 percent. Three scenarios of incremental benefits and costs are presented using alternative parameters that are assumptions-based. These scenarios include: a low net benefit scenario (using parameters which results in lower benefits and higher costs), an expected scenario (consisting of expected values for assumed parameters), and a high net benefit scenario (using parameters which results in higher benefits and lower costs).

Table 1 - Annualized Value of Monetized Benefits and Costs under the Final Rule, 2018-2027 (in 2017 dollars)

Type of Benefits or Costs Scenario 7%
Discount Rate
(in millions) 
3%
Discount Rate
(in millions)
Monetized incremental benefits to Federal agencies and members of the public with certain disabilities (under Revised 508 Standards)    Low Net Benefit Scenario $32.0   $34.0
Expected Scenario  $72.4   $77.0
High Net Benefit Scenario  $187.4   $199.0
Monetized incremental costs to Federal agencies (under Revised 508 Standards)  Low Net Benefit Scenario   $276.2  $287.4
Expected Scenario   $172.8   $181.1
High Net Benefit Scenario   $111.5  $117.2
Monetized incremental costs to telecommunications equipment and CPE manufacturers (under Revised 255 Guidelines)  Low Net Benefit Scenario  $9.5   $9.6
Expected Scenario   $9.5   $9.6
High Net Benefit Scenario   $9.5  $9.6

   
While the Final RIA monetizes likely incremental benefits and costs attributable to the final rule, this represents only part of the regulatory picture. Today, though ICT is now woven into the very fabric of everyday life, millions of Americans with disabilities often find themselves unable to use – or use effectively – computers, mobile devices, Federal agency Web sites, or electronic content. The Board’s existing standards and guidelines are greatly in need of a “refresh” to keep up with technological changes over the past fifteen years. The Board expects this final rule to be a major step toward ensuring that ICT is more accessible to and usable by individuals with disabilities – both in the Federal workplace and society generally. Indeed, much – if not most – of the significant benefits expected to accrue from the final rule are difficult, if not impossible, to quantify, including: greater social equality, human dignity, and fairness. Each of these values is explicitly recognized by Executive Order 13563 as important qualitative considerations in regulatory analyses.

Moreover, American companies that manufacture telecommunications equipment and ICT-related products will likely derive significant benefits from the Access Board’s concerted efforts to harmonize the accessibility requirements in the Revised 508 Standards and 255 Guidelines with voluntary consensus standards. Given the relative lack of existing national and globally-recognized standards for accessibility of mobile technologies, telecommunications equipment manufacturers will, we believe, greatly benefit from harmonization of the Revised 255 Guidelines with consensus standards. Similar benefits will likely accrue more generally to manufacturers of all ICT-related products as a result of harmonization.

It is also equally important to note that some potentially substantial incremental costs arising from the final rule are not evaluated in the Final RIA, either because such costs could not be quantified or monetized (due to lack of data or for other methodological reasons) or are inherently qualitative. For example, due to lack of information, the Final RIA does not assess the cost impact of new or revised requirements in the Revised 255 Guidelines on computer and telecommunications equipment manufacturers. A more in-depth discussion of the Final RIA can be found in Section V.A (Regulatory Process Matters – Final Regulatory Impact Analysis).