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43460 Federal Register / Vol. 75, No.

142 / Monday, July 26, 2010 / Proposed Rules

rules? What are the costs and benefits, Dated: July 21, 2010. • Federal eRulemaking Web site:
both quantitatively and qualitatively, of Thomas E. Perez, www.regulations.gov. Follow the Web
providing individuals with disabilities Assistant Attorney General, Civil Rights site’s instructions for submitting
an equal opportunity to access health Division. comments.
care, recreational facilities, exercise [FR Doc. 2010–18331 Filed 7–22–10; 4:15 pm] • Regular U.S. mail: Disability Rights
equipment, furniture in hotels, nursing BILLING CODE 4410–13–P Section, Civil Rights Division, U.S.
homes, and hospitals, and electronic Department of Justice, P.O. Box 2885,
information and transactions? The Fairfax, VA 22031–0885.
Department seeks specific cost DEPARTMENT OF JUSTICE • Overnight, courier, or hand
information, including information on delivery: Disability Rights Section, Civil
the costs and benefits, as well as 28 CFR Parts 35 and 36 Rights Division, U.S. Department of
anecdotal evidence of the costs and [CRT Docket No. 110] Justice, 1425 New York Avenue, NW.,
benefits of accessible equipment and Suite 4039, Washington, DC 20005.
furniture. RIN 1190–AA61
FOR FURTHER INFORMATION CONTACT:
A. Impact on Small Entities Nondiscrimination on the Basis of Christina Galindo-Walsh, Attorney,
Disability; Accessibility of Web Disability Rights Section, Civil Rights
Consistent with the Regulatory
Information and Services of State and Division, U.S. Department of Justice, at
Flexibility Act of 1980 and Executive
Local Government Entities and Public (202) 307–0663 (voice or TTY). This is
Order 13272, the Department must
Accommodations not a toll free number. Information may
consider the impacts of any proposed
also be obtained from the Department’s
rule on small entities, including small AGENCY: Department of Justice, Civil toll-free ADA Information Line at (800)
businesses, small nonprofit Rights Division. 514–0301 (voice) or (800) 514–0383
organizations, and small governmental
ACTION: Advance Notice of Proposed (TTY).
jurisdictions. See 5 U.S.C. 603–04
Rulemaking. You may obtain copies of this
(2006); E.O. 13272, 67 FR 53461 (Aug.
ANPRM in large print, audiotape,
13, 2002). The Department will make an SUMMARY: The Department of Justice
initial determination as to whether any Braille, or computer disk by calling the
(Department) is considering revising the ADA Information Line at (800) 514–
rule it proposes is likely to have a regulations implementing title III of the
significant economic impact on a 0301 (voice) or (800) 514–0383 (TTY).
Americans with Disabilities Act (ADA This ANPRM is also available on the
substantial number of small entities, or Act) in order to establish
and if so, the Department will prepare ADA Home Page at http://www.ada.gov.
requirements for making the goods, SUPPLEMENTARY INFORMATION:
an initial regulatory flexibility analysis services, facilities, privileges,
analyzing the economic impacts on accommodations, or advantages offered I. Electronic Submission of Comments
small entities and regulatory by public accommodations via the and Posting of Public Comments
alternatives that reduce the regulatory Internet, specifically at sites on the
burden on small entities while You may submit electronic comments
World Wide Web (Web), accessible to to www.regulations.gov. When
achieving the goals of the regulation. In individuals with disabilities. The
response to this ANPRM, the submitting comments electronically,
Department is also considering revising you must include CRT Docket No. 110
Department encourages small entities to the ADA’s title II regulation to establish
provide cost data on the potential in the subject box, and you must
requirements for making the services, include your full name and address.
economic impact of adopting a specific
programs, or activities offered by State Electronic files should avoid the use of
requirement for Web site accessibility
and local governments to the public via special characters or any form of
and recommendations on less
the Web accessible. The Department is encryption and should be free of any
burdensome alternatives, with cost
issuing this advance notice of proposed defects or viruses.
information.
Question 23. The Department seeks rulemaking (ANPRM) in order to solicit Please note that all comments
input regarding the impact the measures public comment on various issues received are considered part of the
being contemplated by the Department relating to the potential application of public record and made available for
with regard to accessible equipment and such requirements and to obtain public inspection online at
furniture will have on small entities if background information for the www.regulations.gov. Submission
adopted by the Department. The regulatory assessment the Department postings will include any personal
Department encourages you to include must prepare if it were to adopt identifying information (such as your
any cost data on the potential economic requirements that are economically name, address, etc.) included in the text
impact on small entities with your significant according to Executive Order of your comment. If you include
response. 12866. personal identifying information (such
Question 24. Are there alternatives DATES: The Department invites written as your name, address, etc.) in the text
that the Department can adopt, which comments from members of the public. of your comment but do not want it to
were not previously discussed, that will Written comments must be postmarked be posted online, you must include the
alleviate the burden on small entities? and electronic comments must be phrase ‘‘PERSONAL IDENTIFYING
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Should there be different compliance submitted on or before January 24, 2011. INFORMATION’’ in the first paragraph
requirements or timetables for small Commenters should be aware that the of your comment. You must also
entities that take into account the electronic Federal Docket Management include all the personal identifying
resources available to small entities or System will not accept comments after information you want redacted along
should the Department adopt an Midnight Eastern Time on the last day with this phrase. Similarly, if you
exemption for certain or all small of the comment period. submit confidential business
entities from coverage of the rule, in ADDRESSES: You may submit comments, information as part of your comment but
whole or in part. Please provide as identified by RIN 1190–AA61 (or Docket do not want it posted online, you must
much detail as possible in your ID No. 110), by any one of the following include the phrase ‘‘CONFIDENTIAL
response. methods: BUSINESS INFORMATION’’ in the first

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Federal Register / Vol. 75, No. 142 / Monday, July 26, 2010 / Proposed Rules 43461

paragraph of your comment. You must facilities to be readily accessible to and regulations under the ADA. Based on
also prominently identify confidential usable by individuals with disabilities. these comments and the reasons
business information to be redacted 42 U.S.C. 12101 et seq. Section 204 (a) detailed below, the Department has
within the comment. If a comment has of title II and section 306(b) of title III decided to begin the process of
so much confidential business direct the Attorney General to soliciting comments and suggestions
information that it cannot be effectively promulgate regulations to carry out the with respect to what an NPRM regarding
redacted, all or part of that comment provisions of titles II and III, other than Web access should contain.
may not be posted on certain provisions dealing specifically
B. Legal Foundation for Web
www.regulations.gov. with transportation. 42 U.S.C. 12134; 42
Accessibility
Comments on this ANPRM will also U.S.C. 12186(b).
be made available for public viewing by Title II applies to State and local When the ADA was enacted in 1990,
appointment at the Disability Rights government entities, and, in Subtitle A, the Internet as we know it today—the
Section, located at 1425 New York protects qualified individuals with ubiquitous infrastructure for
Avenue, NW., Suite 4039, Washington, disabilities from discrimination on the information and commerce—did not
DC 20005, during normal business basis of disability in services, programs, exist. Today the Internet, most notably
hours. To arrange an appointment to and activities provided by State and the sites of the Web, plays a critical role
review the comments, please contact the local government entities. Title II in the daily personal, professional,
ADA Information Line at (800) 514– extends the prohibition on civic, and business life of Americans.
0301 (voice) or (800) 514–0383 (TTY). discrimination established by section Increasingly, private entities are
The reason that the Civil Rights 504 of the Rehabilitation Act of 1973, as providing goods and services to the
Division is requesting electronic amended, 29 U.S.C. 794 (section 504), to public through Web sites that operate as
comments before Midnight Eastern all activities of State and local places of public accommodation under
Time on the day the comment period governments regardless of whether these title III of the ADA. Similarly, many
closes is because the inter-agency entities receive Federal financial public entities under title II are using
Regulations.gov/Federal Docket assistance. 42 U.S.C. 12131–65. Web sites to provide the public access
Management System (FDMS), which Title III prohibits discrimination on to their programs, services, and
receives electronic comments terminates the basis of disability in the activities of activities. Many Web sites of public
the public’s ability to submit comments places of public accommodation accommodations and governmental
at Midnight on the day the comment (private entities whose operations affect entities, however, render use by
period closes. Commenters in time commerce and that fall into one of 12 individuals with disabilities difficult or
zones other than Eastern may want to categories listed in the ADA, such as impossible due to barriers posed by Web
take this fact into account so that their restaurants, movie theaters, schools, day sites designed without accessible
electronic comments can be received. care facilities, recreational facilities, and features.
doctors’ offices) and requires newly Being unable to access Web sites puts
The constraints imposed by the
constructed or altered places of public individuals at a great disadvantage in
Regulations.gov/FDMS system do not
accommodation––as well as commercial today’s society, which is driven by a
apply to U.S. postal comments, which
facilities (privately owned, dynamic electronic marketplace and
will be considered as timely filed if they unprecedented access to information.
nonresidential facilities such as
are postmarked before Midnight on the On the economic front, electronic
factories, warehouses, or office
day the comment period closes. commerce, or ‘‘e-commerce,’’ often offers
buildings)––to comply with the ADA
II. Public Hearing Standards. 42 U.S.C. 12181–89. consumers a wider selection and lower
On July 26, 1991, the Department prices than traditional, ‘‘brick-and-
The Department will hold a hearing to
issued its final rules implementing title mortar’’ storefronts, with the added
solicit comments on the issues
II and title III, which are codified at 28 convenience of not having to leave one’s
presented in this notice. The
CFR part 35 (Title II) and part 36 (Title home to obtain goods and services. For
Department plans to hold the public
III). Appendix A of the title III individuals with disabilities who
hearing during the 180-day public
regulation, at 28 CFR part 36, app. A, experience barriers to their ability to
comment period. The date, time, and
contains the ADA Standards for travel or to leave their homes, the
location of the public hearing will be
Accessible Design. On September 30, Internet may be their only way to access
announced to the public in the Federal
2004, the Department published an certain goods and services.
Register. Beyond goods and services,
advance notice of proposed rulemaking
III. Background (2004 ANPRM) to begin the process of information available on the Internet
updating the 1991 regulations to adopt has become a gateway to education.
A. Statutory and Rulemaking History revised ADA Standards based on the Schools at all levels are increasingly
On July 26, 1990, President George relevant parts of the 2004 ADA/ABA offering programs and classroom
H.W. Bush signed into law the ADA, a Guidelines. 69 FR 58768. On June 17, instruction through Web sites. Many
comprehensive civil rights law 2008, the Department issued a notice of colleges and universities offer degree
prohibiting discrimination on the basis proposed rulemaking (NPRM) to adopt programs online; some universities exist
of disability. The ADA broadly protects the revised 2004 ADA Standards and exclusively on the Internet. Even if they
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the rights of individuals with revise the title II and title III regulations. do not offer degree programs online,
disabilities in employment, access to 73 FR 34466. The NPRM addressed the most colleges and universities today
State and local government services, issues raised in the public’s comments rely on Web sites and other Internet-
places of public accommodation, to the ANPRM and sought additional related technologies in the application
transportation, and other important comment. Although the Department did process for prospective students, for
areas of American life. The ADA also not propose to include Web accessibility housing eligibility and on-campus living
requires newly designed and provisions in the 2004 ANPRM or the assignments, course registration,
constructed or altered State and local 2008 NPRM, the Department received assignments and discussion groups, and
government facilities, public numerous comments urging the for a wide variety of administrative and
accommodations, and commercial Department to issue Web accessibility logistical functions in which students

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43462 Federal Register / Vol. 75, No. 142 / Monday, July 26, 2010 / Proposed Rules

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

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ii. Web Accessibility Under the ADA delegated authority to the Attorney Cir. 1998) (finding no nexus between
The Internet as it is known today did General to promulgate regulations to challenged insurance policy and
not exist when Congress enacted the carry out the Act’s broad mandate. See services offered to the public from
ADA and, therefore, neither the ADA H.R. Rep. No. 101–485(II), 101st Cong., insurance office). Instead, the ADA
nor the regulations the Department 2d Sess. 108 (1990); 42 U.S.C. 12186(b). mandate for ‘‘full and equal enjoyment’’
promulgated under the ADA specifically Consistent with this approach, the requires nondiscrimination by a place of
address access to Web sites. But the Department stated in the preamble to public accommodation in the offering of
statute’s broad and expansive the original 1991 ADA regulations that all its goods and services, including
nondiscrimination mandate reaches the regulations should be interpreted to those offered via Web sites.
goods and services provided by covered keep pace with developing technologies. iii. Need for Department Action
entities on Web sites over the Internet. 28 CFR part 36, app. B.
The Internet has been governed by a
Title III of the ADA provides that ‘‘[n]o Section 12182 of title III provides that
variety of voluntary standards or
individual shall be discriminated no person ‘‘who owns, leases (or leases
structures developed through nonprofit
against on the basis of disability in the to), or operates a place of public
organizations using multinational
full and equal enjoyment of the goods, accommodation’’ may discriminate ‘‘on
collaborative efforts. For example,
services, facilities, privileges, the basis of disability in the full and
domain names are issued and
advantages, or accommodations of any equal enjoyment of the goods, services,
administered through the Internet
place of public accommodation by any facilities, privileges, advantages, or Corporation for Assigned Names and
person who owns, leases (or leases to), accommodations of any place of public Numbers (ICANN), the Internet Society
or operates a place of public accommodation.’’ 42 U.S.C. 12182(a) (ISOC) publishes computer security
accommodation.’’ 42 U.S.C. 12182(a). (emphasis added). Similarly, title II policies and procedures for sites, and
Title III of the ADA and its provides that qualified individuals with the World Wide Web Consortium
corresponding regulations define a disabilities shall not be excluded from (W3C®) develops a variety of technical
‘‘place of public accommodation’’ as a ‘‘participation in or be denied the standards and guidelines ranging from
facility whose operations affect benefits of the services, programs, or issues related to mobile devices and
commerce and that falls within at least activities of a public entity.’’ 42 U.S.C. privacy to internationalization of
one of the following 12 categories: 12132 (emphasis added). The plain technology. In the area of accessibility,
(1) An inn, hotel, motel, or other place of language of these statutory provisions the Web Accessibility Initiative (WAI) of
lodging, except for an establishment located applies to discrimination in offering the the W3C® has created the Web Content
within a building that contains not more than goods and services ‘‘of’’ a place of public Accessibility Guidelines (WCAG).
five rooms for rent or hire and that is actually accommodation or the services, It has been the policy of the United
occupied by the proprietor of the programs, and activities ‘‘of’’ a public
establishment as the residence of the States to encourage self-regulation with
entity, rather than being limited to those regard to the Internet wherever possible
proprietor;
(2) A restaurant, bar, or other establishment goods and services provided ‘‘at’’ or ‘‘in’’ and to regulate only where self-
serving food or drink; a place of public accommodation or regulation is insufficient and
(3) A motion picture house, theater, facility of a public entity. See National government involvement may be
concert hall, stadium, or other place of Federation of the Blind v. Target Corp., necessary. See Memorandum on
exhibition or entertainment; 452 F. Supp. 2d 946, 953 (N.D. Cal. Electronic Commerce, 33 WCPD 1006,
(4) An auditorium, convention center, 2006) (finding in a Web site-access case 1006–1010 (July 1, 1997), available at
lecture hall, or other place of public that ‘‘[t]o limit the ADA to
gathering; http://www.gpo.gov/fdsys/pkg/WCPD-
(5) A bakery, grocery store, clothing store,
discrimination in the provision of 1997-07-07/html/WCPD-1997-07-07-
hardware store, shopping center, or other services occurring on the premises of a Pg1006-2.htm (last visited June 29,
sales or rental establishment; public accommodation would 2010); A Framework for Global
(6) A laundromat, dry-cleaner, bank, barber contradict the plain language of the Electronic Commerce, http://
shop, beauty shop, travel service, shoe repair statute’’); Rendon v. Valleycrest clinton4.nara.gov/WH/New/Commerce
service, funeral parlor, gas station, office of Productions, Ltd., 294 F.3d 1279 (11th (last visited June 29, 2010).
an accountant or lawyer, pharmacy, Cir. 2002) (finding that discrimination Voluntary standards have generally
insurance office, professional office of a did not have to occur on-site in order to proved to be sufficient where obvious
health care provider, hospital, or other
service establishment;
violate the ADA); see also Carparts business incentives align with
(7) A terminal, depot, or other station used Distribution Ctr., 37 F.3d 12 (concluding discretionary governing standards as, for
for specified public transportation; that title III is not limited to provision example, with respect to privacy and
(8) A museum, library, gallery, or other of goods and services provided in security standards designed to increase
place of public display or collection; physical structures, but also covers consumer confidence in e-commerce.
(9) A park, zoo, amusement park, or other access to goods and services offered by There has not, however, been equal
place of recreation; a place of public accommodation success in the area of accessibility. The
(10) A nursery, elementary, secondary, through other mediums, such as WAI leadership has recognized this
undergraduate, or postgraduate private
school, or other place of education;
telephone or mail). But see Access Now, challenge and has stated that in order to
Inc. v. Southwest Airlines, Co., 227 F. improve and accelerate Web
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(11) A day care center, senior citizen


center, homeless shelter, food bank, adoption Supp. 2d 1312 (S.D. Fla. 2002) (finding accessibility it is important to
agency, or other social service center a Web site is only covered if it affects ‘‘communicat[e] the applicability of the
establishment; and access to a physical place of public ADA to the Web more clearly, with
(12) A gymnasium, health spa, bowling accommodation); See Weyer v. updated guidance * * * .’’ Achieving the
alley, golf course, or other place of exercise Twentieth Century Fox Film Corp., 198 Promise of the Americans with
or recreation. F.3d 1104, 1114–16 (9th Cir. 2000) Disabilities Act in the Digital Age—
42 U.S.C. 12181(7); 28 CFR 36.104. (requiring some connection between the Current Issues, Challenges, and
Congress contemplated that the goods or services complained of and an Opportunities: Hearing Before the
Department would apply the statute in actual physical place); Ford v. Schering- Subcomm. on the Constitution, Civil
a manner that evolved over time, and it Plough Corp., 145 F.3d 601, 612–13 (3d Rights, and Civil Liberties, H. Comm. On

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43464 Federal Register / Vol. 75, No. 142 / Monday, July 26, 2010 / Proposed Rules

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

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regulatory requirements on the Web agencies, which are required to make services of public accommodations that
sites of public accommodations and their Web sites accessible under section operate exclusively or through some
State and local government entities. 508 of the Rehabilitation Act of 1973, 29 type of presence on the Web—whether
U.S.C. 794(d) (section 508). Specifically, hosting their own Web site or
A. Accessibility standards to apply to
the Web sites of Federal government participating in a host’s Web site—the
Web sites of covered titles II and III
agencies must comply with the Department wishes to make clear the
entities
Electronic and Information Technology limited scope of its regulations. For
As previously mentioned, the Web Accessibility Standards (section 508 example, the Department is considering
Accessibility Initiative (WAI) of the standards) published by the U.S. Access proposing explicit regulatory language
World Wide Web Consortium (W3C®) Board, 36 CFR 1194, available at that makes clear that Web content
has created recognized voluntary http://www.access-board.gov/sec508/ created or posted by Web site users for
international guidelines for Web standards.htm (last visited June 29, personal, noncommercial use is not
accessibility. These guidelines, set out 2010). The Access Board is currently covered, even if that content is posted
in the Web Content Accessibility revising the section 508 standards, in on the Web site of a public
Guidelines (WCAG), detail how to make part to harmonize the standards with accommodation or a public entity. This
Web content accessible to individuals model guidelines, such as the WCAG. would include individual participation
with disabilities. The most recent and Question 1. Should the Department in popular online communities, forums,
updated version of the WCAG, the adopt the WCAG 2.0’s ‘‘Level AA or networks in which people upload
WCAG 2.0, was published in December Success Criteria’’ as its standard for Web personal videos or photos or engage in
2008 and is available at http:// site accessibility for entities covered by exchanges with other users. The
www.w3.org/TR/WCAG20/ (last visited titles II and III of the ADA? Is there any Department could also make clear that
June 29, 2010). According to the WAI, reason why the Department should public accommodations and public
the WCAG 2.0 ‘‘applies broadly to more consider adopting another success entities are not liable for inaccessible
advanced technologies; is easier to use criteria level of the WCAG 2.0? Please content posted to their sites by
and understand; and is more precisely explain your answer. individuals not under their control as
testable with automated testing and Question 2. Should the Department long as they provide their Web site users
human evaluation.’’ See WAI, Web adopt the section 508 standards instead the ability to make their posts
Content Accessibility Guidelines of the WCAG guidelines as its standard accessible.
(WCAG) Overview, available at http:// for Web site accessibility under titles II In addition, the Department does not
www.w3.org/WAI/intro/wcag.php (last and III of the ADA? Is there a difference intend to propose regulatory text that
visited June 29, 2010). in compliance burdens and costs reaches the informal or occasional
The WCAG 2.0 contains 12 guidelines between the two standards? Please trading, selling, or bartering of goods or
addressing Web accessibility. Each explain your answer. services by private individuals in the
guideline contains testable criteria for Question 3. How should the context of an online marketplace. The
objectively determining if Web content Department address the ongoing Department could distinguish such
satisfies the guideline. In order for a changes to WCAG and section 508 occasional trading activity by
Web page to conform to the WCAG 2.0, standards? Should covered entities be individuals acting in a private capacity
the Web page must satisfy the criteria given the option to comply with the from legally established business
for all 12 guidelines under one of three latest requirements? entities, ranging from sole
conformance levels: A, AA, or AAA. Question 4. Given the ever-changing proprietorships to limited liability
The three levels of conformance nature of many Web sites, should the companies and corporations. As long as
indicate a measure of accessibility and Department adopt performance these business entities offer the goods or
feasibility. Level A, which is the standards instead of any set of specific services of a public accommodation
minimum level of conformance for technical standards for Web site online, they would be responsible for
access, contains criteria that provide accessibility? Please explain your making such offerings accessible to
basic Web accessibility and that are the support for or opposition to this option. individuals with disabilities. Lastly, a
most feasible for Web content If you support performance standards, public accommodation or public entity
developers. Level AA, which is the please provide specific information on would not be required to ensure the
intermediate level for access, contains how such performance standards should accessibility of Web sites that are linked
enhanced criteria that provide more be framed. to its site, but that it does not operate
comprehensive Web accessibility and or control. However, to the extent an
yet are still feasible for Web content B. Coverage limitations
entity requires users of its Web site to
developers. Level AAA, which is the It is the Department’s intention to utilize another Web site in order to take
maximum level of access, contains regulate only governmental entities and part in its goods and services (e.g.,
criteria that may be less feasible for Web public accommodations covered by the payment for items on one Web site must
content developers. In fact, WAI does ADA that provide goods, services, be processed through another Web site),
not recommend that Level AAA programs, or activities to the public via the entity may be liable for the
conformance be required as a general Web sites on the Internet. Although accessibility of other sites it requires its
policy for entire Web sites because it is some litigants have asserted that ‘‘the patrons to use even if it does not operate
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not possible to satisfy all Level AAA Internet’’ itself should be considered a or control the site.
criteria for some content. See W3C®, place of public accommodation, the Question 5. The Department seeks
Understanding WCAG 2.0: Department does not address this issue specific feedback on the limitations for
Understanding Conformance (Dec. here. The Department believes that title coverage that it is considering. Should
2008), http://www.w3.org/TR/ III reaches the Web sites of entities that the Department adopt any specific
UNDERSTANDING–WCAG20/ provide goods or services that fall parameters regarding its proposed
conformance.html (last visited June 29, within the 12 categories of ‘‘public coverage limitations? How should the
2010). accommodations,’’ as defined by the Department distinguish, in the context
Standards for Web site accessibility statute and regulations. Because the of an online marketplace, between
also exist for Federal government Department is focused on the goods and informal or occasional trading, selling,

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43466 Federal Register / Vol. 75, No. 142 / Monday, July 26, 2010 / Proposed Rules

or bartering of goods or services by requiring the Web sites of entities reasonable or should the Department
private individuals and activities that covered by the ADA to be accessible. adopt shorter or longer periods for
are formal and more than occasional? When the ADA was enacted, the compliance? Please provide as much
Are there other areas or matters effective dates for various provisions detail as possible in support of your
regarding which the Department should were delayed in order to provide time view.
consider adopting additional coverage for covered entities to become familiar Question 10. The Department seeks
limitations? Please provide as much with their new obligations. Under the comment regarding whether such a
detail as possible in your response. 1991 regulations, new construction requirement would cause some
under title II and alterations under businesses to remove older material
C. Compliance Issues rather than change the content into an
either title II or title III had to comply
Question 6. What resources and with the design standards of the accessible format. Should the
services are available to public Department’s new regulations by Department adopt a safe harbor for such
accommodations and public entities to January 26, 1992, six months after the content so long as it is not updated or
make their Web sites accessible? What regulations were published. See 28 CFR modified?
is the ability of covered entities to make 35.151(a)–(b); 28 CFR 36.402(a). For Question 11. Should the Department
their Web sites accessible with in-house new construction under title III, the take an incremental approach in
staff? What technical assistance should ADA requirements applied to facilities adopting accessibility regulations
the Department make available to public of public accommodations designed and applicable to Web sites and adopt a
entities and public accommodations to constructed for first occupancy after different effective date for covered
assist them with complying with this January 26, 1993—–eighteen months entities based on certain criteria? For
rule? after the ADA Standards were published instance, should the Department’s
Question 7. Are there distinct or by the Department. See 28 CFR regulation initially apply to entities of a
specialized features used on Web sites 36.401(a). certain size (e.g., entities with 15 or
that render compliance with The Department is considering an more employees or earning a certain
accessibility requirements difficult or effective date of six months after the amount of revenue) or certain categories
impossible? publication of the final rule for newly of entities (e.g., retail Web sites)? Please
The Department has taken the created Web sites or pages, i.e., those provide as much detail and information
position that covered entities with that have been placed online for the first as possible in support of your view.
inaccessible Web sites may comply with time six months after the publication of
the ADA’s requirement for access by E. Cost and Benefits of Web Site
the final rule. Under such a proposal, Regulations
providing an accessible alternative, such newly created or completely redesigned
as a staffed telephone line, for Web sites will have to come into total Executive Order 12866 requires
individuals to access the information, compliance with any Web access Federal agencies to submit ‘‘significant
goods, and services of their Web site. requirements adopted by the regulatory action’’ to the Office of
See Accessibility of State and Local Department. New pages on existing Web Management and Budget’s (OMB) Office
Government Web sites to People with sites would need to comply with the of Information and Regulatory Affairs
Disabilities, available at http:// Web access requirements to the (OIRA) for review and approval prior to
www.ada.gov/Web sites2.htm. In order maximum extent feasible. The publication in the Federal Register. See
for an entity to meet its legal obligation Department is considering this E.O. 12866, 58 FR 51735 (Sept. 30,
under the ADA, an entity’s alternative provision for new pages on existing Web 1993), as amended; OMB Budget
must provide an equal degree of access sites because the Department recognizes Circular A 4, http://
in terms of hours of operations and that certain features on existing Web www.whitehouse.gov/OMB/circulars/
range of information, options, and sites—such as navigation components or a004/a-4.pdf (Sept. 17, 2003) (last
services available. For example, a use of integrated Web technology with visited June 29, 2010). A proposed
department store that has an limited capacity for accessibility— regulatory action is deemed to be
inaccessible Web site that allows cannot be completely altered or ‘‘economically significant’’ under section
customers to access their credit replaced without a complete redesign of 3(f)(1) of Executive Order 12866 if it has
accounts 24 hours a day, 7 days a week the entire site. For this reason, the an annual effect on the economy of $100
in order to review their statements and Department is considering requiring million or more. Id. Regulatory actions
make payments would need to provide new pages on existing Web sites to that are deemed to be economically
access to the same information and comply with the accessibility significant must include a formal
provide the same payment options in its requirements to the maximum extent regulatory analysis––a report analyzing
accessible alternative. feasible. The Department recognizes, the economic costs and benefits of the
Question 8. Given that most Web sites however, that in some cases this may regulatory action. A formal cost-benefit
today provide significant amounts of result in incomplete accessibility of new analysis must include both qualitative
services and information in a dynamic, pages. For existing Web sites or pages, and quantitative measurements of the
evolving setting that would be difficult, the Department is considering having benefits and costs of the proposed rule
if not impossible, to replicate through the Web site access requirement apply as well as a discussion of each
alternative, accessible means, to what two years after the date of publication potentially effective and reasonably
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extent can accessible alternatives still be of the final rule. The Department is feasible alternative. Since this is an
provided? Might viable accessible considering this period of time for ANPRM, the Department is not required
alternatives still exist for simple, non- existing Web sites because it recognizes to conduct certain economic analyses or
dynamic Web sites? that many Web sites have hundreds written assessments that otherwise may
(and some thousands) of pages that will be required for other more formal types
D. Effective Date need to be made accessible. of agency regulatory actions (e.g.,
Following the publication of a final Question 9. The Department seeks notices of proposed rulemaking or final
rule, the Department must set an comment on the proposed time frames rules). If any proposed rule the
effective date for the application of any for compliance. Are the proposed Department issues regarding Web access
new title II or title III regulations effective dates for the regulations is likely to have an economically

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Federal Register / Vol. 75, No. 142 / Monday, July 26, 2010 / Proposed Rules 43467

significant impact on the economy, the 13, 2002). The Department will make an consider? Please provide as much detail
Department will prepare a formal initial determination as to whether any as possible in your response.
regulatory analysis. rule it proposes is likely to have a Dated: July 21, 2010.
Question 12. What data source do you significant economic impact on a Thomas E. Perez,
recommend to assist the Department in substantial number of small entities,
estimating the number of public Assistant Attorney General, Civil Rights
and if so, the Department will prepare Division.
accommodations (i.e., entities whose an initial regulatory flexibility analysis
[FR Doc. 2010–18334 Filed 7–22–10; 4:15 pm]
operations affect commerce and that fall analyzing the economic impacts on
within at least one of the 12 categories BILLING CODE 4410–13–P
small entities and regulatory
of public accommodations listed above) alternatives that reduce the regulatory
and State and local governments to be burden on small entities while
covered by any Web site accessibility DEPARTMENT OF JUSTICE
achieving the goals of the regulation. In
regulations adopted by the Department response to this ANPRM, the 28 CFR Part 36
under the ADA? Please include any data Department encourages small entities to
or information regarding entities the provide cost data on the potential [CRT Docket No. 112]
Department might consider limiting economic impact of adopting a specific RIN 1190–AA63
coverage of, as discussed in the requirement for Web site accessibility
‘‘coverage limitations’’ section above. and recommendations on less Nondiscrimination on the Basis of
Question 13. What are the annual burdensome alternatives, with cost Disability; Movie Captioning and Video
costs generally associated with creating, information. Description
maintaining, operating, and updating a Question 17. The Department seeks
Web site? What additional costs are AGENCY:Civil Rights Division, Justice.
input regarding the impact the measures
associated with creating and Advance Notice of Proposed
ACTION:
being contemplated by the Department
maintaining an accessible Web site? Rulemaking.
with regard to Web accessibility will
Please include estimates of specific have on small entities if adopted by the
compliance and maintenance costs SUMMARY: The Department of Justice
Department. The Department (Department) is considering revising its
(software, hardware, contracting, encourages you to include any cost data
employee time, etc.). What, if any, regulation implementing title III of the
on the potential economic impact on Americans with Disabilities Act (ADA)
unquantifiable costs can be anticipated small entities with your response.
from amendments to the ADA in order to establish requirements for
Please provide information on capital making the goods, services, facilities,
regulations regarding Web site access? costs for equipment, such as hardware
Question 14. What are the benefits privileges, accommodations, or
and software needed to meet the advantages offered by movie theater
that can be anticipated from action by
regulatory requirements; costs of owners or operators at movie theaters
the Department to amend the ADA
modifying existing processes and accessible to individuals who are deaf
regulations to address Web site
procedures; any affects to sales and or hard of hearing or who are blind or
accessibility? Please include anticipated
profits, including increases in business have low vision by screening movies
benefits for individuals with
due to tapping markets not previously with closed captioning or video
disabilities, businesses, and other
reached; changes in market competition description. The Department is issuing
affected parties, including benefits that
as a result of the rule; and cost for hiring this Advance Notice of Proposed
cannot be fully monetized or otherwise
web professionals for to assistance in Rulemaking (ANPRM) in order to solicit
quantified.
Question 15. What, if any, are the making existing Web sites accessible. public comment on various issues
likely or potential unintended Question 18. Are there alternatives relating to the potential application of
consequences (positive or negative) of that the Department can adopt, which such requirements and to obtain
Web site accessibility requirements? For were not previously discussed in background information for the
example, would the costs of a response to Questions 11 or 16, that will regulatory assessment the Department
requirement to provide captioning to alleviate the burden on small entities? may need to prepare in adopting any
videos cause covered entities to provide Should there be different compliance such requirements.
fewer videos on their Web sites? requirements or timetables for small DATES: The Department invites written
Question 16. Are there any other entities that take into account the comments from members of the public.
effective and reasonably feasible resources available to small entities or Written comments must be postmarked
alternatives to making the Web sites of should the Department adopt an and electronic comments must be
public accommodations accessible that exemption for certain or all small submitted on or before January 24, 2011.
the Department should consider? If so, entities from coverage of the rule, in ADDRESSES: You may submit comments,
please provide as much detail about whole or in part. Please provide as identified by RIN 1190–AA63 (or Docket
these alternatives, including much detail as possible in your ID No. 112), by any one of the following
information regarding their costs and response. methods:
effectiveness in your answer. G. Other Issues • Federal eRulemaking Web site:
www.regulations.gov. Follow the Web
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F. Impact on Small Entities Question 19. The Department is site’s instructions for submitting
Consistent with the Regulatory interested in gathering other comments. The Regulations.gov Docket
Flexibility Act of 1980 and Executive information or data relating to the ID is DOJ–CRT–0112.
Order 13272, the Department must Department’s objective to provide • Regular U.S. mail: Disability Rights
consider the impacts of any proposed requirements for Web accessibility Section, Civil Rights Division, U.S.
rule on small entities, including small under titles II and III of the ADA. Department of Justice, P.O. Box 2885,
businesses, small nonprofit Are there additional issues or Fairfax, VA 22031–0885.
organizations, and small governmental information not addressed by the • Overnight, courier, or hand
jurisdictions. See 5 U.S.C. 603–04 Department’s questions that are delivery: Disability Rights Section, Civil
(2006); E.O. 13272, 67 FR 53461 (Aug. important for the Department to Rights Division, U.S. Department of

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