A. Existing 508 Standards and 255 Guidelines (1998–2000)

The Access Board issued the existing 255 Guidelines for telecommunications equipment and customer premises equipment in 1998. Telecommunications Act Accessibility Guidelines, 63 FR 5608 (Feb. 3, 1998) (codified at 36 CFR part 1193). Two years later, in 2000, the Board published the existing 508 Standards. Electronic and Information Technology Accessibility Standards, 65 FR 80499 (Dec. 21, 2000) (codified at 36 CFR part 1194). In this preamble, all citations to 36 CFR part 1193 refer to the existing 255 Guidelines in force since 1998, while all citations to 36 CFR Part 1194 refer to the existing 508 Standards in force since 2000.

The existing 508 Standards require Federal agencies to ensure that persons with disabilities — namely, Federal employees with disabilities and members of the public with disabilities — have comparable access to, and use of, electronic and information technology (regardless of the type of medium) absent a showing of undue burden. 36 CFR Part 1194. Among other things, these standards: define key terms (such as “electronic and information technology” and “undue burden”); establish technical requirements and functional performance criteria for covered electronic and information technologies; require agencies to document undue burden determinations when procuring covered products; and mandate accessibility of support documentation and services. Generally speaking, the existing 508 Standards take a product-based regulatory approach in that technical requirements for electronic and information technology are grouped by product type: software applications and operating systems; Web-based intranet and Internet information and applications; telecommunications products; self-contained, closed products; and desktop and portable computers.

The existing 255 Guidelines require manufacturers of telecommunications equipment and customer premises equipment to ensure that new and substantially upgraded existing equipment is accessible to, and usable by, individuals with disabilities when readily achievable. 36 CFR part 1193. The existing guidelines, as with the 508 Standards, define key terms (such as “telecommunications equipment” and “readily achievable”) and establish technical requirements for covered equipment, software, and support documentation. These guidelines also require manufacturers of covered equipment to consider inclusion of individuals with disabilities in their respective processes for product design, testing, trials, or market research.

B. TEITAC Advisory Committee (2006–2008)

In the years following our initial promulgation of the existing 508 Standards and 255 Guidelines, technology has continued to evolve at a rapid pace. Pursuant to our statutory mandate, the Access Board deemed it necessary and appropriate to review and update the existing 508 Standards and 255 Guidelines in order to make them consistent with one another and reflective of technological changes. In 2006, the Board formed the Telecommunications and Electronic and Information Technology Advisory Committee (hereafter, “TEITAC Advisory Committee”) to assist in the process of revising and updating the existing 508 Standards and 255 Guidelines. See Notice of Establishment, 71 FR 38324 (July 6, 2006). The TEITAC Advisory Committee’s 41 members comprised a broad cross-section of stakeholders representing industry, disability groups, and Government agencies. This Advisory Committee also included international representatives from the European Commission, Canada, Australia, and Japan. The TEITAC Advisory Committee recognized the importance of standardization across markets worldwide and coordinated its work with standard-setting bodies in the U.S. and abroad, such as the World Wide Web Consortium (W3C®), and with the European Commission. The TEITAC Advisory Committee addressed a range of issues, including new or convergent technologies, market forces, and international harmonization.

In April 2008, the TEITAC Advisory Committee issued its final report to the Access Board (hereafter, “TEITAC Report”). See Advisory Committee Report, U.S. Access Board (Apr. 2008), http://www.access-board.gov/teitac-report (last accessed Aug. 23, 2016). This TEITAC Report provided a set of recommended updates to the existing 508 Standards and 255 Guidelines, which, the committee noted, were intended to balance two competing considerations: the need for clear and specific standards that facilitate compliance, and the recognition that static standards “consisting of design specification[s] and fixed checklists” would tend to “stifle innovation” and “delay the availability of technology advancements to people with disabilities.” Id. at Section 1. To address these considerations, the TEITAC Advisory Committee recommended that the Access Board jettison its existing product-based regulatory approach in favor of technical requirements to achieve accessibility based on ICT functions or features. Id. The Committee also noted the importance of harmonizing with international standards to both spur development of accessible ICT products and reduce manufacturers’ costs in the global market. Id. at Sections 4 & 4.3. To that end, the Committee worked to harmonize its recommendations with the then-draft WCAG 2.0. Id. at Sections 4.3 & 8.2.

All told, the TEITAC Report provided a comprehensive recommended set of technical requirements applicable to a broad range of ICT functions and features, including: closed functionality; hardware with and without speech output; user interfaces; electronic content; processing and display of captions and audio description; RTT; authoring tools; and, product support documentation and services.

C. First Advance Notice of Proposed Rulemaking (2010)

1. General

Following publication of the TEITAC Report, the Access Board worked to develop a proposed rule that would “refresh” the existing its existing 508 Standards and 255 Guidelines. In March 2010, we issued an Advance Notice of Proposed Rulemaking (2010 ANPRM) inviting public comment on an initial set of draft revisions to the standards and guidelines. See Advance Notice of Proposed Rulemaking, 75 FR 13457 (proposed Mar. 22, 2010); see also Draft Information and Communication Technology (ICT) Standards and Guidelines, U.S. Access Board, https://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-ict-refresh/background/draft-rule-2010 (last accessed Aug. 23, 2016).

In sum, the 2010 ANPRM proposed a set of accessibility requirements that largely tracked the TEITAC Report’s recommendations. While the majority of the proposed requirements in the draft rule were not substantively changed from the existing 508 Standards and 255 Guidelines, there were some notable proposed substantive revisions. Two of the most significant were the proposals to require that Federal agencies make electronic content of specified official communications accessible, and to harmonize with WCAG 2.0 by restating the Level AA Success Criteria and Conformance Requirements in regulatory (mandatory) terms in the draft rule. Additionally, the 2010 ANPRM—in keeping with the TEITAC Report—also sought to substantially update the structure and organization of the existing regulations. In the draft rule, the proposed standards and guidelines shared a common set of functional performance criteria (Chapter 2) and technical design criteria (Chapters 3-10), but had separate introductory chapters (Chapters 1 and 2), which outlined the respective scoping, application, and definitions for the revised 508 Standards and 255 Guidelines.

2. Public Hearings and Comments

The Access Board held two public hearings on the 2010 ANPRM — March 2010 (San Diego, CA) and July 2010 (Washington, DC). We also received 384 written comments 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 individuals.

In general, commenters agreed with our approach to addressing the accessibility of ICT through functionality rather than discrete product types. Commenters also expressed strong support for our efforts to update the existing 508 Standards and 255 Guidelines, as well as our decision to follow the TEITAC Advisory Committee’s recommendation to require harmonization with WCAG 2.0. However, many commenters expressed concern that the 2010 ANPRM was not user-friendly, e.g., that it was too long (at close to 100 pages), organized in a confusing manner, and suffered from some internal inconsistencies. For example, commenters noted confusion by virtue of the fact that some chapters focused on functional features of accessibility while others addressed specific types of technology, or that the meaning of “ICT” seemed to vary depending on the context of the specific chapter. Other commenters opined that deviations from WCAG 2.0 phrasing in the draft rule created ambiguities, particularly for those well familiar with WCAG 2.0.

D. Second Advance Notice of Proposed Rulemaking (2011 ANPRM)

1. General

By the following year, in 2011, the Access Board was poised to invite public comment on a revised version of the draft rule. The Board acknowledged that, based on comments to the 2010 ANPRM, the draft rule needed to be reorganized and made more concise. More importantly, we needed to obtain further comment on major issues and harmonize with the European Commission’s ICT standardization efforts that were already underway at that time. Consequently, the Board issued a second Advance Notice of Proposed Rulemaking (2011 ANPRM). See Advance Notice of Proposed Rulemaking, 76 FR 76640 (proposed Dec. 8, 2011); Draft Updated Standards and Guidelines (2011), U.S. Access Board, https://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-ict-refresh/draft-rule-2011.

In the 2011 ANPRM, the Access Board substantially revamped the structure and organization of the draft rule. To address comments criticizing the length and organization of the 2010 ANPRM as unwieldy, the revised draft rule consolidated and streamlined provisions into six chapters (from ten), consolidated advisories, and reduced the page count from close to 100 to less than 50. We also made revisions to improve the clarity of various proposed provisions and ensure a consistent organizational structure throughout this draft rule. See, e.g., U.S. Access Board, Information and Communication Technology Standards and Guidelines; Proposed Rule (NPRM), 80 FR 10880, 10884–93 (Feb. 27, 2015) (providing detailed comparison of 2010 and 2011 ANPRMs). Additionally, to address commenters’ collective concern that rephrasing of WCAG 2.0 requirements introduced ambiguities, the revised draft rule proposed to apply WCAG 2.0’s requirements through incorporation by reference rather than restating its requirements in the technical provisions for Web and non-Web content, documents, and user applications.

In issuing the 2011 ANPRM, the Access Board also took notice of the standardization work going on in Europe at the time, stating:
[T]he 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 comment on specific questions and to harmonize with contemporaneous standardization efforts underway by the European Commission.
2011 ANPRM, 76 FR at 76642.

2. Public Hearings and Comments

Hearings were held in January 2012 in Washington, DC and in March 2012 in San Diego, CA. Additionally, 91 written comments were received in response to the 2011 ANPRM. 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 and trade organizations, institutions of higher education and research, accessibility consultants, assistive technology industry and related organizations, and individual stakeholders who did not identify with any of these groups.

In general, commenters continued to agree with our approach to address ICT accessibility by focusing on features, rather than discrete product types. Commenters supported the conciseness of the proposed provisions in the 2011 ANPRM, and asked for further streamlining where possible. Commenters also generally voiced strong support for the Board’s decision to incorporate by reference WCAG 2.0 and apply it to all types of covered ICT; several commenters did, however, question the propriety of applying WCAG 2.0 to non-Web ICT.

E. Notice of Proposed Rulemaking (2015 NPRM)

1. General

In 2015, the Access Board formally commenced the rulemaking process by issuing a notice of proposed rulemaking to update the existing 508 Standards and 255 Guidelines. See Notice of Proposed Rulemaking; Information and Communication Technology Standards and Guidelines, 80 FR 10879 (proposed Feb. 27, 2015) (hereinafter, NPRM). This proposed rule—while making editorial changes and other updates in response to comments on the 2011 ANPRM— retained the same overall structure and approach to referencing WCAG 2.0.

2. Hearings and Comments

Hearings were held on March 5, 2015 in San Diego, CA, on March 11, 2015 in Washington, DC, and April 29, 2015 in Salt Lake City, UT. Additionally, 137 written comments were received in response to the NPRM. Comments came from industry, Federal and state governments, disability advocacy groups, manufacturers of hardware and software, trade associations and trade organizations, institutions of higher education and research, and individuals who did not identify with any of these groups.

Overall, we received about 160 comments in response to the NPRM, including written comments and oral testimony from witnesses at the three public hearings. These commenters represented, when excluding multiple submissions, about 140 different entities or individuals. By general category, these NPRM commenters can be broken down as follows: individuals (59); disability advocacy organizations (59); ICT companies (10); accessible ICT services providers (11); trade associations representing ITC and telecommunications companies (11); individuals or groups identifying themselves as ICT subject matter experts (13); academicians (6); state or local governmental agencies (7); standards development organizations (3); international disability advocacy organizations (9); and, anonymous (4).

In general, commenters spoke positively about the proposed rule, and noted that it was much improved from earlier iterations in the 2010 and 2011 ANPRMs. By a wide margin, the single most commented-upon aspect of the proposed rule (and the issue on which commenters expressed the greatest unanimity) was timing. Characterizing refresh of the 508 Standards and 255 Guidelines as “long overdue,” these commenters urged the Access Board to issue its final rule as expeditiously as possible. On substantive matters, a large number of commenters addressed some aspect of the requirements for electronic content, with the bulk of these comments relating to Section 508-covered content. Another technical area receiving sizeable comment was our proposal that, under both Sections 508 and 255, WCAG 2.0 and PDF/UA-1 serve as the referenced technical standards for accessibility of electronic content, hardware, software, and support documentation and services. Additionally, real-time text (RTT) was a subject of great interest to NPRM commenters, with most commenters representing disability advocacy organizations and academicians supporting the Board’s RTT proposal, while ITC manufacturers and trade groups expressed opposition. Further, the issue of harmonization with EN 301 549 received considerable comment. In general, ITC industry-related commenters urged the Board to harmonize more closely with this European specification. Disability advocacy organizations and consumer-related commenters, on the other hand, viewed the proposed rule and EN 301 549 as well harmonized already and expressed concern that further harmonization would be improvident because, in their view, EN 301 549 set forth weaker accessibility requirements in some areas.

Lastly, the Board received multiple comments from individuals or entities addressing various types of electromagnetic sensitivities. These commenters requested that the final rule require accommodations for people with electromagnetic intolerances, so that they might use Federal buildings and Federally-funded facilities. The Board acknowledges the challenges faced by individuals with electromagnetic sensitivities, and notes that electromagnetic sensitivities may be considered a disability under the ADA if the sensitivity so severely impairs the neurological, respiratory, or other functions of an individual that it substantially limits one or more of the individual's major life activities. However, most of the accommodations suggested by these commenters are beyond the scope of this rulemaking or our statutory jurisdiction. Moreover, none of our prior rulemaking notices (i.e., 2010 ANPRM, 2011 ANPRM, and NPRM) proposed technical specifications relating to electromagnetic sensitivities. Thus, were the Board to address electromagnetic sensitivity issues posed by ITC, this complex area would require thorough research and notice-and-comment rulemaking before being addressed through rulemaking.

F. Harmonization with European Activities

1. History

While the Access Board was in the process of updating its existing 508 Standards and 255 Guidelines, a similar process began in Europe to create the first European set of ICT accessibility standards. As a result of the 2005 EU-US Economic Initiative, the Access Board and the European Commission began to work closely on the issue of Information and Communication Technology standards. See, e.g., European Comm., Implementation of the Economic Initiative of the June 2005 EU-US Summit: Joint EU-US Work Programme (Nov. 2005), available at http://trade.ec.europa.eu/doclib/docs/2006/june/tradoc_127643.pdf.

In 2005, the European Commission issued Mandate 376, which sought the assistance of several private European standards organizations in the development of European accessibility guidelines for public ICT procurements. See European Comm., M 376 – Standardisation Mandate to CEN, CENELEC, and ETSI in Support of European Accessibility Requirements for Public Procurement of Products and Services in the ICT Domain (Dec. 7, 2005), available at http://www.etsi.org/WebSite/document/aboutETSI/EC_Mandates/m376en.pdf. Specifically, Mandate 376 requested that the three European standards setting bodies —European Committee for Standardization (CEN), European Committee for Electrotechnical Standardization (CENELEC) and the European Telecommunications Standards Institute (ETSI) — perform two main tasks: development of a set of functional European accessibility requirements for public procurement of ICT products and services; and creation of an electronic toolkit for use by public procurers.

In early 2014, the three European standardization organizations completed their development process by formally adopting and publishing the first European set of specifications on e-accessibility for public ICT procurements, EN 301 549. See ETSI/CEN/CENELEC, EN 301 549 V1.1.1 (2014-02), Accessibility Requirements Suitable for Public Procurement of ICT Products and Services in Europe (Feb. 2014), available at http://www.etsi.org/deliver.1 The functional accessibility requirements specified in EN 301 549 are “closely harmonized” with the then-current draft revisions Section 508 Standards (i.e., the 2011 ANPRM). Accessible ICT Procurement Toolkit – Frequently Asked Questions, Mandate 376, http://mandate376.standards.eu/frequently-asked-questions#difference (last accessed Aug. 23, 2016). Unlike the 508 Standards, however, EN 301 549—by its own terms— establishes only non-binding, voluntary accessibility requirements for public ICT procurements. Id.

In October 2016, the European Parliament and Council of the European Union issued Directive 2016/2102, which generally requires EU member states to “ensure that public sector bodies take the necessary measures to make their websites and mobile applications more accessible [to persons with disabilities] by making them perceivable, operable, understandable and robust.” Directive 2016/2102 on the Accessibility of the Websites and Mobile Applications of Public Sector Bodies, Article 4 (Oct. 26, 2016), available at http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016L2102&from=EN. Directive 2016/2102 further provides that, as a general matter, EN 301 549 V1.1.2 (2015-04) serves as the relevant accessibility standard absent future adoption of technical standards or publication of references to harmonized standards by the European Commission. Id. at Article 6. EN 301 549 is thus now available to government officials in EU member states who may use it as technical specifications or award criteria in public procurements of ICT products and services.

2. Comparison of Final Rule with EN 301 549

In the final rule, the Board has made multiple changes that are similar to EN 301 549. Both the final rule and EN 301 549 address the functions of technology, rather than categories of technologies. Similarly, both offer technical requirements and functional performance criteria for accessible ICT. For example, our use of the phrase “information and communication technology” (ICT) in the final rule, as a replacement of the existing term “electronic and information technology,” originates in the common usage of ICT throughout Europe and the rest of the world. Moreover, both documents are organized in similar ways, in that they both have initial scoping and definitions chapters, followed by separate chapters containing technical requirements and functional performance criteria.

Organizationally, the documents differ in several respects. These general differences are outlined in Table 2 below:

Table 2 - Formatting Differences between the Final rule and EN 301 549

 DifferencesEN 301 549 V1.1.2 (2015-04) Final Rule 
Number of chapters
Note: EN 301 549 breaks out several sections as separate chapters which are combined in the Board’s final rule
 13  6
 

Chapter 2 – References

Chapter 3 – Definitions and Abbreviations

 
Chapter 1 – Application and Administration 
 

Chapter 1– Scope

Chapter 9 – Web (lists each WCAG 2.0 Level AA success criteria)

Chapter 10 – non-Web Documents (lists each success criteria in WCAG 2.0 Level AA using non-Web phrasing as needed. “Empty clause” is used for the four problematic success criteria, to align sub-provision numbering with other chapters.)

 

Chapter 2 – Scoping Requirements

We use incorporation by reference to include the WCAG 2.0 Level AA success criteria

For non-Web documents, we are explicit with the word substitution necessary, and provide an exception for the four problematic success criteria

 
  Chapter 4 – Functional Performance  Chapter 3 – Functional Performance Criteria 
 

Chapter 5 – Generic requirements (e.g., closed functionality, biometrics, operable parts)

Chapter 6 – ICT with two-way voice communications

Chapter 7 – ICT with video capabilities

Chapter 8 – Hardware 

Chapter 4 – Hardware 
  Chapter 11 – Software  Chapter 5 – Software 
  Chapter 12 – Documentation and support services  Chapter 6 – Support Documentation and Services 
Unique chapters  Chapter 13 – ICT providing relay or emergency services  No comparable chapter 
  Annex A (informative) – WCAG 2.0  No comparable chapter. We are using incorporation by reference, and not reprinting the entire standard. 
  Annex B (informative) – Relationships between requirements and functional performance statements.  No comparable chapter. Similar comparisons are found in the TEITAC Report. 
  Annex C (normative) – Determination of compliance  Not within the scope of Section 508 or Section 255, Section 508 compliance is determined by each Federal agency 
 

Section 8.3.2 Clear floor or ground space

Section 8.3.2.1 Change in level

Section 8.3.2.2 Clear floor or ground space

Not within the scope of Section 508 or Section 255

Most similar to “303 Changes in Level” and “305 Clear Floor or Ground Space” from the 2010 ADA Standards for Accessible Design 

Differing treatment of similar concepts  Section 6.2 Real-time text (RTT) functionality  412.5 Real-Time Text Functionality is reserved. 
  6.5 Video communication 

412.7 Video Communication 

Their 6.5 is a prescriptive standard while our 412.7 is a performance standard