ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD

36 CFR Part 1194

[Docket No. 2000-01]

RIN 3014-AA25

AGENCY: Architectural and Transportation Barriers Compliance Board.

ACTION: Final Rule.

SUMMARY: The Architectural and Transportation Barriers Compliance Board
(Access Board) is issuing final accessibility standards for electronic and information
technology covered by section 508 of the Rehabilitation Act Amendments of 1998.
Section 508 requires the Access Board to publish standards setting forth a definition
of electronic and information technology and the technical and functional performance
criteria necessary for such technology to comply with section 508. Section 508
requires that when Federal agencies develop, procure, maintain, or use electronic and
information technology, they shall ensure that the electronic and information
technology allows Federal employees with disabilities to have access to and use of
information and data that is comparable to the access to and use of information and
data by Federal employees who are not individuals with disabilities, unless an undue
burden would be imposed on the agency. Section 508 also requires that individuals
with disabilities, who are members of the public seeking information or services from
a Federal agency, have access to and use of information and data that is comparable
to that provided to the public who are not individuals with disabilities, unless an undue
burden would be imposed on the agency.

DATES: Effective date: February 20, 2001.

FOR FURTHER INFORMATION CONTACT: Doug Wakefield, Office of
Technical and Information Services, Architectural and Transportation Barriers
Compliance Board, 1331 F Street, NW., suite 1000, Washington, DC
20004-1111. Telephone number (202) 272-5434 extension 139 (voice); (202)
272-5449 (TTY). Electronic mail address: wakefield@access-board.gov.

SUPPLEMENTARY INFORMATION:

Availability of Copies and Electronic Access

Single copies of this publication may be obtained at no cost by calling the
Access Board's automated publications order line (202) 272-5434, by pressing 2 on
the telephone keypad, then 1, and requesting publication S-40 (Electronic and
Information Technology Accessibility Standards Final Rule). Persons using a TTY
should call (202) 272-5449. Please record a name, address, telephone number and
request publication S-40. This document is available in alternate formats upon
request. Persons who want a copy in an alternate format should specify the type of
format (cassette tape, Braille, large print, or computer disk). This document is also
available on the Board's Internet site (http://www.access-
board.gov/sec508/508standards.htm).

Background

On August 7, 1998, the President signed into law the Workforce Investment
Act of 1998, which includes the Rehabilitation Act Amendments of 1998. Section
508 of the Rehabilitation Act Amendments, as amended by the Workforce
Investment Act of 1998, requires that when Federal agencies develop, procure,
maintain, or use electronic and information technology, they shall ensure that the
electronic and information technology allows Federal employees with disabilities to
have access to and use of information and data that is comparable to the access to
and use of information and data by Federal employees who are not individuals with
disabilities, unless an undue burden would be imposed on the agency. Section 508
also requires that individuals with disabilities, who are members of the public seeking
information or services from a Federal agency, have access to and use of information
and data that is comparable to that provided to the public who are not individuals
with disabilities.

Section 508(a)(2)(A) requires the Architectural and Transportation Barriers
Compliance Board (Access Board) to publish standards setting forth a definition of
electronic and information technology and the technical and functional performance
criteria necessary for accessibility for such technology. If an agency determines that
meeting the standards, when procuring electronic and information technology,
imposes an undue burden, it must explain why meeting the standards creates an undue
burden.

On March 31, 2000, the Access Board issued a notice of proposed
rulemaking (NPRM) in the Federal Register (65 FR 17346) proposing standards for
accessible electronic and information technology. The proposed standards were
based on recommendations of the Electronic and Information Technology Access
Advisory Committee (EITAAC). The EITAAC was convened by the Access Board
in September 1998 to assist the Board in fulfilling its mandate under section 508. It
was composed of 27 members including representatives of the electronic and
information technology industry, organizations representing the access needs of
individuals with disabilities, and other persons affected by accessibility standards for
electronic and information technology. Representatives of Federal agencies, including
the departments of Commerce, Defense, Education, Justice, Veterans Affairs, the
Federal Communications Commission, and the General Services Administration,
served as ex-officio members or observers of the EITAAC.

The public comment period for the proposed rule ended on May 30, 2000.
Over 100 individuals and organizations submitted comments on the proposed
standards. Comments were submitted by Federal agencies, representatives of the
information technology industry, disability groups, and persons with disabilities.
Approximately 35 percent of the comments came from Federal agencies. Fifteen
percent came from individual companies and industry trade associations.
Approximately 30 percent of the comments were from individuals with disabilities and
organizations representing persons with disabilities. Eight states responded to the
proposed rule and the remaining comments were from educational or research
organizations.

The proposed standards covered various products, including computers,
software, and electronic office equipment in the Federal sector. They provided
technical criteria specific to various types of technologies and performance-based
requirements, which focus on the functional capabilities of covered technologies.
Specific criteria covered controls, keyboards, and keypads; software applications
and operating systems (non-embedded); web-based information or applications;
telecommunications functions; video or multi-media products; and information kiosks
and transaction machines. Also covered was compatibility with adaptive equipment
that people with disabilities commonly use for information and communication access.

General Issues

This section of the preamble addresses general issues raised by comments
filed in response to the NPRM. Individual provisions of the rule are discussed in
detail under the Section-by-Section Analysis below.

Effective Date for the Enforcement of Section 508

Section 508(a)(2)(A) required the Board to publish final standards for
accessible electronic and information technology by February 7, 2000. Section
508(a)(3) provides that within six months after the Board publishes its standards, the
Federal Acquisition Regulatory Council is required to revise the Federal Acquisition
Regulation (FAR), and each Federal agency is required to revise the Federal
procurement policies and directives under its control to incorporate the Board's
standards.

Because of the delay in publishing the standards, the proposed rule sought
comment on making the standards effective six months after publication in the Federal
Register to provide Federal agencies an opportunity to more fully understand the new
standards and allow manufacturers of electronic and information technology time to
ensure that their products comply with the standards before enforcement actions
could be initiated. The NPRM noted that postponing the effective date of the
Board's standards could not affect the right of individuals with disabilities to file
complaints for electronic and information technology procured after August 7, 2000
since that right was established by the statute.

Comment. There was a general consensus that a delay in the effective date of
the standards was warranted to provide a reasonable period of time for industry to
bring their products into compliance with the Board's standards.

Response. On July 13, 2000, President Clinton signed into law the Military
Construction Appropriations Act for Fiscal Year 2001 (Public Law 106-246) which
included an amendment to section 508 of the Rehabilitation Act. Under the
amendment, the effective date for the enforcement of section 508 was delayed to
allow for additional time for compliance with the Board's final standards. As
originally written, the enforcement provisions of section 508 would have taken effect
on August 7, 2000. The amendment in Public Law 106-246 revises the enforcement
date to 6 months from publication of the Board's final standards, consistent with the
law's intent. As a result of the amendment, there is no need to delay the effective
date of the standards. The effective date for the standards is largely an administrative
provision and does not affect the date by which complaints may be filed under section
508. Complaints and lawsuits may be filed 6 months from the date of publication of
these standards in the Federal Register.

Technical and Functional Performance Criteria

Section 508 (a)(2)(A)(ii) requires the Board to develop technical and
functional performance criteria necessary to implement the requirements of section
508.

Comment. The Information Technology Association of America (ITAA)
commented that the specificity of many of the proposed provisions go beyond what
may be characterized as technical and functional performance criteria. ITAA
commented that the statute intended that the standards be set forth in terms of
technical and functional performance criteria as opposed to technical design
requirements. Performance criteria are intended to give discretion in achieving the
required end result. ITAA commented that product developers, who have a broad
understanding of their own products, industry standards, and future trends need this
discretion to meet the requirements of section 508 and that it is impossible to predict
accurately future technological advances. Design requirements, they added, inhibit
development and innovation. ITAA was concerned that many of the proposed
provisions would impede technological advancements because they were too specific.
On the other hand, ITAA supported proposed 1194.5, Equivalent Facilitation,
because it would lessen the adverse impact of the specific requirements.

Response. According to administration policy, performance standards are
generally to be preferred to engineering or design standards because performance
standards provide the regulated parties the flexibility to achieve the regulatory
objective in a more cost-effective way. The Board was given the responsibility to
develop technical and functional performance criteria necessary to implement the
requirements of section 508. Thus, the standards provide technical requirements as
well as functional performance criteria. The standards reflect the need to be as
descriptive as possible because procurement officials and others need to know when
compliance with section 508 has been achieved and because the failure to meet the
standards can result in an enforcement action. Several provisions, such as those
regarding time-out features, have been revised in the final rule to be more
performance oriented rather than specific design standards.

Section-by-Section Analysis

This section of the preamble summarizes each of the provisions of the final
rule and the comments received in response to the proposed rule. Where the
provision in the final rule differs from that of the proposed rule, an explanation of the
modification is provided. The text of the final rule follows this section.

Subpart A General

Section 1194.1 Purpose

This section describes the purpose of the standards which is to implement
section 508 of the Rehabilitation Act of 1973, as amended by the Workforce
Investment Act of 1998. No substantive comments were received and no changes
have been made to this section in the final rule.

Section 1194.2 Application

This section specifies what electronic and information technology is covered
by the standards. Electronic and information technology covered by section 508
must comply with each of the relevant sections of this part. For example, a computer
and its software programs would be required to comply with 1194.26, Desktop and
portable computers, 1194.21, Software applications and operating systems, and the
functional performance criteria in 1194.31. Paragraph (a) states the general
statutory requirement for electronic and information technology that must comply with
the standards unless doing so would result in an undue burden. The term "undue
burden" is defined at 1194.4 (Definitions) and is discussed in the preamble under
that section.

Paragraph (a)(1) states the statutory obligation of a Federal agency to make
information and data available by an alternative means when complying with the
standards would result in an undue burden. For example, a Federal agency wishes to
purchase a computer program that generates maps denoting regional demographics.
If the agency determines that it would constitute an undue burden to purchase an
accessible version of such a program, the agency would be required to make the
information provided by the program available in an alternative means to users with
disabilities. In addition, the requirements to make reasonable accommodations for
the needs of an employee with a disability under section 501 and to provide overall
program accessibility under section 504 of the Rehabilitation Act also apply.

Comment. The National Federation of the Blind (NFB) suggested that
additional language be added that would require agencies to provide information by
an alternative means at the same time the information and data are made available to
others.

Response. This paragraph restates the general statutory requirement to
provide an alternative means of providing an individual the use of the information and
data. Providing individuals with information and data by an alternative means
necessarily requires flexibility and will generally be dealt with on a case-by-case
approach. Although, the Board agrees that information provided by an alternative
means should be provided at generally the same time as the information is made
available to others, the provision provides the needed flexibility to ensure that
agencies can make case-by-case decisions. No substantive changes were made in
the final rule.

Paragraph (a)(2) sets forth the statutory requirement for an agency to
document any claim of undue burden in a procurement. Such documentation must
explain in detail which provision or provisions of this rule impose an undue burden
and the extent of such a burden. The agency should discuss each of the factors
considered in its undue burden analysis.

Comment. The General Services Administration was concerned that this
provision was too limiting because it only referred to products which are procured by
the Federal Government and did not include products which are developed,
maintained, or used. The American Council of the Blind (ACB) recommended that
the requirement for documentation apply when agencies claim the lack of
commercially available accessible equipment or software. The NFB commented that
there should be a requirement for agencies to explain the specific alternate means to
be used to provide information or data. Without such a requirement, they argued,
persons with disabilities must be knowledgeable enough to inquire about an alternate
means after first discovering that the product used for the information and data is not
accessible. Although agencies would be expected to know in advance when
products will not be accessible, persons with disabilities will not have this information
until encountering the problem.

Response. Paragraph (a)(2) addresses the documentation of undue burden.
By statute, the requirement to document an undue burden applies only to
procurements. This rule does not prescribe the needed documentation of a finding of
an undue burden but merely restates the statutory requirement that a finding be
documented. The FAR is expected to address the needed documentation. No
substantive changes have been made in the final rule.

Paragraph (b) states that procurement of products complying with this part is
subject to commercial availability. The concept of commercial availability is based on
existing provisions in the FAR (see 48 CFR 2.101, Definitions of Words and Terms:
Commercial item).

The proposed rule provided that the standards applied to products which
were available in the commercial marketplace; would be available in time to meet an
agency's delivery requirements through advances in technology or performance; or
were developed in response to a Government solicitation. As noted in the preamble,
this language was derived from the definition for "commercial item" in the FAR cited
above. The preamble to the proposed rule stated that the determination of
commercial availability is to be applied on a provision by provision basis.

Comment. A number of commenters sought further clarification of this
provision. Several commenters from the information technology industry and some
Federal agencies were concerned that the concept of what is commercially available
was more appropriately within the jurisdiction of the Federal Acquisition Regulatory
Council. The American Foundation for the Blind (AFB) and the ACB wanted
agencies to document their determination that a product was not commercially
available similar to what is required under undue burden. The ITAA commented that
commercial availability should not be applied on a provision by provision basis.

Response. The Board agrees that the FAR is the appropriate venue for
addressing commercial availability. The Board believes that the concept of
commercial availability is captured in the FAR definition of "commercial item".

With respect to documentation, Federal agencies may choose to document a
determination that a product is not available in the commercial marketplace in
anticipation of a subsequent inquiry. However, such documentation is not required by
section 508.

Similar to an undue burden analysis, agencies cannot claim that a product as a
whole is not commercially available because no product in the marketplace meets all
the standards. If products are commercially available that meet some but not all of
the standards, the agency must procure the product that best meets the standards.
The final rule has been modified to clarify this application.

Paragraph (c) applies this rule to electronic and information technology
developed, procured, maintained, or used by an agency directly or used by a
contractor pursuant to a contract with an agency.

Comment. The ITAA commented that this provision conflicts with section
508. For example, they commented that if a contract required a vendor to purchase
and maintain a specific computer system for the purpose of gathering and relaying
certain data to an agency, the standards would apply to such a computer system even
if the system would be used only by vendor employees. In addition, ITAA
commented that this is not a technical and functional performance criterion, and
should be addressed by the FAR.

Response. Consistent with section 5002(3)(C) of the Clinger-Cohen Act of
1996 (40 U.S.C. 1452) and as further discussed in section 1194.3(b) below,
products used by a contractor which are incidental to a contract are not covered by
this rule. For example, a Federal agency enters into a contract to have a web site
developed for the agency. The contractor uses its own office system to develop the
web site. The web site is required to comply with this rule since the web site is the
purpose of the contract, however, the contractor's office system does not have to
comply with these standards, since the equipment used to produce the web site is
incidental to the contract. See section 1194.3(b) below. No changes were made to
this provision in the final rule.

Section 1194.3 General Exceptions

This section provides general exceptions from the standards. Paragraph (a)
provides an exception for telecommunications or information systems operated by
agencies, the function, operation, or use of which involves intelligence activities,
cryptologic activities related to national security, command and control of military
forces, equipment that is an integral part of a weapon or weapons system, or systems
which are critical to the direct fulfillment of military or intelligence missions. This
exception is statutory under section 508 and is consistent with a similar exception in
section 5142 of the Clinger-Cohen Act of 1996. This exception does not apply to a
system that is to be used for routine administrative and business applications
(including payroll, finance, logistics, and personnel management applications). For
example, software used for payroll, word processing software used for production of
routine documents, ordinary telephones, copiers, fax machines, and web applications
must still comply with the standards even if they are developed, procured, maintained,
or used by an agency engaged in intelligence or military activities. The Board
understands that the Department of Defense interprets this to mean that a computer
designed to provide early missile launch detection would not be subject to these
standards, nor would administrative or business systems that must be architecturally
tightly coupled with a mission critical, national security system, to ensure
interoperability and mission accomplishment. No substantive comments were
received and no changes have been made to this section in the final rule.

Paragraph (b) provides an exception for electronic and information
technology that is acquired by a contractor incidental to a Federal contract. That is,
the products a contractor develops, procures, maintains, or uses which are not
specified as part of a contract with a Federal agency are not required to comply with
this part. For example, a consulting firm that enters into a contract with a Federal
agency to produce a report is not required to procure accessible computers and
word processing software to produce the report regardless of whether those
products were used exclusively for the government contract or used on both
government and non-government related activities since the purpose of the contract
was to procure a report. Similarly, if a firm is contracted to develop a web site for a
Federal agency, the web site created must be fully compliant with this part, but the
firm's own web site would not be covered. No substantive comments were received
and no changes have been made to this section in the final rule.

Paragraph (c) clarifies that, except as required to comply with these
standards, this part does not require the installation of specific accessibility-related
software or the attachment of an assistive technology device at a workstation of a
Federal employee who is not an individual with a disability. Specific accessibility
related software means software which has the sole function of increasing accessibility
for persons with disabilities to other software programs (e.g., screen magnification
software). The purpose of section 508 and these standards is to build as much
accessibility as is reasonably possible into general products developed, procured,
maintained, or used by agencies. It is not expected that every computer will be
equipped with a refreshable Braille display, or that every software program will have
a built-in screen reader. Such assistive technology may be required as part of a
reasonable accommodation for an employee with a disability or to provide program
accessibility. To the extent that such technology is necessary, products covered by
this part must not interfere with the operation of the assistive technology. No
substantive comments were received and no changes have been made to this section
in the final rule.

Paragraph (d) specifies that when agencies provide access to information or
data to the public through electronic and information technology, agencies are not
required to make equipment owned by the agency available for access and use by
individuals with disabilities at a location other than that where the electronic and
information technology is provided to the public, or to purchase equipment for access
and use by individuals with disabilities at a location other than that where the
electronic and information technology is provided to the public. For example, if an
agency provides an information kiosk in a Post Office, a means to access the kiosk
information for a person with a disability need not be provided in any location other
than at the kiosk itself.

Comment. The ACB commented that where a location is not accessible, an
agency must provide the information in a location that is accessible to people with
disabilities.

Response. This paragraph restates the general statutory requirement that
when agencies provide access to information or data to the public through electronic
and information technology, the agencies are not required to make equipment owned
by the agency available for access and use by individuals with disabilities at a location
other than that where the electronic and information technology is provided to the
public, or to purchase equipment for access and use by individuals with disabilities at
a location other than that where the electronic and information technology is provided
to the public. The accessibility of the location would be addressed under section 504
of the Rehabilitation Act or other Federal laws. No substantive changes were made
in the final rule.

Paragraph (e) states that compliance with this part does not require a
fundamental alteration in the nature of a product or service or its components.

Comment. The AFB commented that fundamental alteration is not an
appropriate factor to include in this rule since the statute provides undue burden as
the proper protection and allowing a fundamental alteration exemption weakens the
intent of the statute and its high expectations of government. If the concept of
fundamental alteration is maintained, AFB recommended that it be part of an
explanation of undue burden. The Department of Commerce agreed that the
inclusion of a fundamental alteration exception would negate the purpose of section
508. The Trace Research and Development Center said that the term should be
defined.

The Information Technology Industry Council (ITIC) commented that the
Board should expand the concept of fundamental alteration by stating that an agency
should not be required to fundamentally alter the nature of a program or service that
the agency offers.

Response. Fundamental alteration is an appropriate exception for inclusion in
the standards. It means a change in the fundamental characteristic or purpose of the
product or service, not merely a cosmetic or aesthetic change. For example, an
agency intends to procure pocket-sized pagers for field agents for a law enforcement
agency. Adding a large display to a small pager may fundamentally alter the device
by significantly changing its size to such an extent that it no longer meets the purpose
for which it was intended, that is to provide a communication device which fits in a
shirt or jacket pocket. For some of these agents, portability of electronic equipment
is a paramount concern. Generally, adding access should not change the basic
purpose or characteristics of a product in a fundamental way.

Comment. The ITAA commented that telecommunications equipment
switches, servers, and other similar "back office" equipment which are used for
equipment maintenance and administration functions should be exempt from the
standards. For example, in the case of telecommunications equipment, technicians
might need to configure service databases, remove equipment panels to replace
components, or run tests to verify functionality. ITAA commented that section 508
should not apply to these types of products since applying requirements to such
products would have serious design and cost ramifications.

Response. The Board agrees and has provided an exception that products
located in spaces frequented only by service personnel for maintenance, repair, or
occasional monitoring of equipment are not required to comply with this part. This
exception is consistent with a similar exception in the Board's guidelines under the
Americans with Disabilities Act (ADA) (4.1.1 (5)(b) 36 CFR part 1191) and the
Architectural Barriers Act (4.1.2 (5) exception, Uniform Federal Accessibility
Standards Appendix A to 41 CFR part 101-19.6).

Section 1194.4 Definitions

Accessible. The term accessible was defined in the proposed rule in terms of
compliance with the standards in this part, as is common with other accessibility
standards. As proposed, if a product complies with the standards in this part, it is
"accessible"; if it does not comply, it is not accessible.

Comment. The Trace Research and Development Center (Trace Center)
and the General Services Administration commented that the proposed definition of
accessible would mean that products can be declared "accessible" if they are merely
compatible with assistive technology and that the definition of accessible was being
used as a measure of compliance. The Trace Center commented that the problem
with this approach is that a product could have few or no accessibility features
because it was an undue burden and still be considered accessible.

Response. Although the term accessible was used sparingly in the proposed
rule, the Board agrees that the definition may be problematic. The term as used in the
proposed rule was in fact addressing products which comply with the standards.
Products covered by this part are required to comply with all applicable provisions of
this part. Accordingly, the definition has been eliminated in the final rule and the term
accessible is not used in the text of the final rule. A product is compliant with the
requirements of section 508 of the Rehabilitation Act of 1973 (as amended by the
Workforce Investment Act of 1998) by meeting all the applicable provisions of part
1194.

Agency. The term agency includes any Federal department or agency,
including the United States Postal Service. No substantive comments were received
regarding this definition and no changes have been made in the final rule.

Alternate formats. Certain product information is required to be made
available in alternate formats to be usable by individuals with various disabilities.
Consistent with the Board's Telecommunications Act Accessibility Guidelines (36
CFR part 1193), the proposed rule defined alternate formats as those formats which
are usable by people with disabilities. The proposed definition noted that the formats
may include Braille, ASCII text, large print, recorded audio, and accessible internet
programming or coding languages, among others. ASCII refers to the American
Standard Code for Information Interchange, which is an American National
Standards Institute (ANSI) standard defining how computers read and write
commonly used letters, numbers, punctuation marks, and other codes.

Comment. One commenter was concerned that the term "accessible internet
programming or coding languages" used in the description of acceptable alternate
formats was somewhat ambiguous and recommended using the term "accessible
internet formats".

Response. The Board agrees that the term "accessible internet programming
or coding languages" may be vague. In addition, as noted above, the final rule will
not include the term "accessible". The definition for alternate formats has been
modified to refer to "electronic formats which comply with this part". This change will
permit, for instance, alternate formats to include a computer file (either on the internet
or saved on a computer disk) that can be viewed by a browser and which complies
with the standards for web pages. No other changes have been made to the
definition in the final rule.

Alternate methods. The proposed rule used the term "alternate modes"
which was defined as different means of providing information to users of products,
including product documentation, such as voice, fax, relay service, TTY, internet
posting, captioning, text-to-speech synthesis, and audio description.

Comment. One commenter suggested that "alternate methods" would be a
better term to describe the different means of providing information. The commenter
was concerned that the term alternate modes would be confused with alternate
modes of operation of the product itself which does not necessarily refer to how the
information is provided.

Response. The Board agrees that the term alternate methods is a more
descriptive and less confusing term than the term alternate modes. Other than the
change in terminology from alternate modes to alternate methods, no other changes
have been made to the definition in the final rule.

Assistive technology. Assistive technology is defined as any item, piece of
equipment, or system, whether acquired commercially, modified, or customized, that
is commonly used to increase, maintain, or improve functional capabilities of
individuals with disabilities. The definition was derived from the definition of assistive
technology in the Assistive Technology Act of 1998 (29 U.S.C. 3002). The
preamble to the proposed rule noted that assistive technology may include screen
readers which allow persons who cannot see a visual display to either hear screen
content or read the content in Braille, specialized one-handed keyboards which allow
an individual to operate a computer with only one hand, and specialized audio
amplifiers that allow persons with limited hearing to receive an enhanced audio signal.
No substantive comments were received regarding this definition and no changes
have been made in the final rule.

Electronic and information technology. This is the statutory term for the
products covered by the standards in this part. The statute explicitly required the
Board to define this term, and required the definition to be consistent with the
definition of information technology in the Clinger-Cohen Act of 1996. The Board's
proposed definition of information technology was identical to that in the Clinger-
Cohen Act. Electronic and information technology was defined in the proposed rule
to include information technology, as well as any equipment or interconnected system
or subsystem of equipment, that is used in the creation, conversion, or duplication of
data or information.

Information technology includes computers, ancillary equipment, software,
firmware and similar procedures, services (including support services), and related
resources. Electronic and information technology includes information technology
products like those listed above as well as telecommunications products (such as
telephones), information kiosks and transaction machines, World Wide Web sites,
multimedia, and office equipment such as copiers, and fax machines.

Consistent with the FAR, the Board proposed that electronic and
information technology not include any equipment that contains embedded information
technology that is used as an integral part of the product, but the principal function of
which is not the acquisition, storage, manipulation, management, movement, control,
display, switching, interchange, transmission, or reception of data or information. For
example, HVAC (heating, ventilation, and air conditioning) equipment such as
thermostats or temperature control devices, and medical equipment where
information technology is integral to its operation, are not information technology.

Comment. Several commenters recommended that the exception for HVAC
control devices and medical equipment be revised in the final rule. The commenters
were concerned that the exception was too broad in that it exempted equipment such
as medical diagnostic equipment that they felt should be covered by the rule. In
addition, the National Association of the Deaf (NAD) requested that public address
systems, alarm systems, and two-way communications systems such as intercoms be
expressly included as electronic and information technology.

Response. The exemption is consistent with existing definitions for
information technology in the FAR. Public address systems, alarm systems, and two-
way communications systems are already addressed by the Americans with
Disabilities Act Accessibility Guidelines and will be addressed in more detail in the
Board's guidelines under the Architectural Barriers Act which apply to Federal
facilities. No changes have been made to the definition in the final rule.

Information technology. The definition of information technology is identical
to that in the Clinger-Cohen Act, that is, any equipment or interconnected system or
subsystem of equipment, that is used in the automatic acquisition, storage,
manipulation, management, movement, control, display, switching, interchange,
transmission, or reception of data or information. Information technology includes
computers, ancillary equipment, software, firmware and similar procedures, services
(including support services), and related resources. No substantive comments were
received regarding this definition and no changes have been made in the final rule.

Operable controls. The proposed rule defined operable controls as those
components of a product that require physical contact for normal operation of the
device. Examples of operable controls were provided, including on/off switches,
buttons, dials and knobs, mice, keypads and other input devices, copier paper trays
(both for inserting paper to be copied and retrieving finished copies), coin and card
slots, card readers, and similar components. The proposed rule also clarified that
operable controls do not include voice-operated controls.

Comment. One commenter was concerned that the term paper trays was
confusing and interpreted it to mean the large trays on a copier which are loaded with
reams of paper for copying. The commenter suggested that the term input and output
trays be used instead.

Response. The Board agrees that input and output trays are more
descriptive. The final rule reflects this change which is intended to apply to products
in their normal operation rather than when the product may be used for maintenance,
repair, or occasional monitoring. For example, a user should be able to add paper to
a desktop laser printer. No other changes have been made to this definition.

Product. The term product is used in the rule as a shorthand for electronic
and information technology. No substantive comments were received regarding this
definition and no changes have been made in the final rule.

Self contained, closed products. This term was not used in the proposed rule
and is provided in the final rule as a result of the reorganization of the standards. Self
contained, closed products, are those that generally have embedded software and are
commonly designed in such a fashion that a user cannot easily attach or install
assistive technology. These products include, but are not limited to, information
kiosks and information transaction machines, copiers, printers, calculators, fax
machines, and other similar types of products.

Telecommunications. The definition for telecommunications is consistent with
the definition in the Board's Telecommunications Act Accessibility Guidelines and the
definition of telecommunications in the Telecommunications Act. No substantive
comments were received regarding this definition and no changes have been made in
the final rule.

TTY. TTYs are machinery or equipment that employ interactive text based
communications through the transmission of coded signals across the telephone
network.

Comment. The Trace Center recommended adding the word "baudot" to the
definition of TTY to clarify that the term is not meant to be broader than baudot
TTYs. The NAD and other consumer groups, however, supported the Board's
definition and encouraged the Board to use the same definition consistently.

Response. The definition for the term TTY is consistent with the definition of
TTY in the Board's ADA Accessibility Guidelines and Telecommunications Act
Accessibility Guidelines. No changes have been made to the definition in the final
rule.

Undue burden. The final rule defines the term undue burden as "significant
difficulty or expense." In determining what is a significant difficulty or expense, each
agency must consider the resources available to the program or component for which
the product is being developed, maintained, used or procured. The proposed rule
defined undue burden as an action that would result in significant difficulty or expense
considering all agency resources available to the agency or component. The Board
sought comment in the NPRM on two additional factors (identified as factor (2) and
factor (3) in the preamble) for agencies to consider in assessing a determination of an
undue burden. Factor (2) addressed the compatibility of an accessible product with
the agency's or component's infrastructure, including security, and the difficulty of
integrating the accessible product. Factor (3) concerned the functionality needed
from the product and the technical difficulty involved in making the product
accessible.

Comment. The ITAA, ITIC and the Oracle Corporation opposed the
inclusion of a definition for undue burden in the final rule. Both the ITAA and the
ITIC commented that defining undue burden was beyond the Board's authority.
Oracle suggested that the concept of undue burden under section 508 was beyond
the Board's expertise in that it was a procurement matter. The commenters were
also concerned that the Board's definition was too narrow. Alternatively, if the
Board was to adopt a definition for undue burden, the ITAA favored adoption of the
factors associated with undue burden and undue hardship in the ADA and section
504 of the Rehabilitation Act. In particular, the ITAA recommended adoption of the
"nature and cost" of the accommodation as a factor for consideration. ITIC favored
adoption of the employment factors in title I of the ADA if the Board were to include
a definition of undue burden. Both the ITAA and the ITIC also favored the adoption
of factors (2) and (3) identified in the NPRM if undue burden was to be addressed in
the final rule.

The remainder and majority of the commenters did not address the issue of
whether the Board should adopt a definition of undue burden, but rather how to
define it. At least two Federal agencies and 10 organizations representing persons
with disabilities opposed the inclusion of factors (2) and (3) suggested in the NPRM.
The Department of Commerce and a majority of advocacy organizations representing
people with disabilities opposed factors (2) and (3) on the grounds that the factors
would create a loophole for agencies to avoid compliance with section 508. The
Department of Veterans Affairs opposed factor (3) as it considered that factor to be
more about job assignment than undue burden. Several commenters including Sun
Microsystems and Adobe Systems favored adopting factors (2) and (3) in the
definition of undue burden. The Social Security Administration (SSA) and the
Department of Health and Human Services, Administration for Children and Families,
sought guidance as to the amount of increased cost of a product that would not
constitute undue burden regardless of an agency's overall budget. Citing the example
of a product that would cost 25 percent more to comply with the standards, the SSA
questioned whether that would be undue or would 10 percent or 50 percent be
considered undue. The General Services Administration recommended basing the
financial resources available to an agency on a program basis.

Response. The term undue burden is based on caselaw interpreting section
504 of the Rehabilitation Act (Southeastern Community College v. Davis, 442 U.S.
397 (1979)), and has been included in agency regulations issued under section 504
since the Davis case. See, e.g., 28 CFR 39.150. The term undue burden is also
used in Title III of the ADA, 42 U.S.C. 12182 (b)(2)(A)(iii). The legislative history
of the ADA states that the term undue burden is derived from section 504 and the
regulations thereunder, and is analogous to the term "undue hardship" in Title I of the
ADA, which Congress defined as "an action requiring significant difficulty or
expense." 42 U.S.C. 12111(10)(A). See, H. Rept. 101-485, pt. 2, at 106. In the
NPRM, the Board proposed adoption of "significant difficulty or expense" as the
definition for undue burden. No changes were made to that aspect of the definition in
the final rule.

Title I of the ADA lists factors to be considered in determining whether a
particular action would result in an undue hardship. 42 U.S.C. 12111(10)(B)(i)-(iv).
However, since title I of the ADA addresses employment and the individual
accommodation of employees, not all of the factors are directly applicable to section
508 except for the financial resources of the covered facility or entity which is
necessary to a determination of "significant difficulty or expense." Unlike title I,
section 508 requires that agencies must procure accessible electronic and information
technology regardless of whether they have employees with disabilities. Requiring
agencies to purchase accessible products at the outset eliminates the need for
expensive retrofitting of an existing product when requested by an employee or
member of the public as a reasonable accommodation at a later time.

In determining whether a particular action is an undue burden under section
508, the proposed rule provided that the resources "available" to an "agency or
component" for which the product is being developed, procured, maintained, or used
is an appropriate factor to consider. The language was derived from the section 504
federally conducted regulations. Those regulations limited the consideration of
resources to those resources available to a "program". The preamble to the
proposed rule noted that an agency's entire budget may not be available for purposes
of complying with section 508. Many parts of agency budgets are authorized for
specific purposes and are thus not available to other programs or components within
the agency. The definition of undue burden has been clarified in the final rule to more
clearly reflect this limitation. The provision now states that "agency resources
available to a program or component" are to be considered in determining whether an
action is an undue burden. Because available financial resources vary greatly from
one agency to another, what constitutes an undue burden for a smaller agency may
not be an undue burden for another, larger agency having more resources to commit
to a particular procurement. Each procurement would necessarily be determined on
a case-by-case basis. Because a determination of whether an action would constitute
an undue burden is made on a case-by-case basis, it would be inappropriate for the
Board to assess a set percentage for the increased cost of a product that would be
considered an undue burden in every case.

The Board has not included factors (2) and (3) in the text of the final rule.
While the Board acknowledges that these may be appropriate factors for
consideration by an agency in determining whether an action is an undue burden,
factors (2) and (3) were not based on established caselaw or existing regulations
under section 504. Further, the Board recognizes that undue burden is determined on
a case-by-case basis and that factors (2) and (3) may not apply in every
determination. Agencies are not required to consider these factors and may consider
other appropriate factors in their undue burden analyses.

Comment. Adobe Systems questioned whether a product which does not
meet a provision based on a finding of undue burden, has to comply with the
remaining provisions.

Response. The undue burden analysis is applied on a provision by provision
basis. A separate undue burden analysis must be conducted and, in the case of
procurements, be documented for each applicable provision.

1194.5 Equivalent facilitation.

This section allows the use of designs or technologies as alternatives to those
prescribed in this part provided that they result in substantially equivalent or greater
access to and use of a product for people with disabilities. This provision is not a
"waiver" or "variance" from the requirement to provide accessibility, but a recognition
that future technologies may be developed, or existing technologies could be used in a
particular way, that could provide the same functional access in ways not envisioned
by these standards. In evaluating whether a technology results in "substantially
equivalent or greater access," it is the functional outcome, not the form, which is
important. For example, an information kiosk which is not accessible to a person
who is blind might be made accessible by having a telephone handset that connects to
a computer that responds to touch-tone commands and delivers the same information
audibly. In addition, voice recognition and activation are progressing rapidly so that
voice input soon may become a reasonable substitute for some or all keyboard input
functions. For example, already some telephones can be dialed by voice. In effect,
compliance with the performance criteria of 1194.31 is the test for equivalent
facilitation.

Comment. Commenters supported the Board in its recognition that
accessibility may sometimes be attained through products that do not strictly comply
with design standards. Several commenters supported this concept because they
believed that it will result in the development of better access solutions for individuals
with disabilities.

Response. No changes have been made to this provision in the final rule.

Subpart B Technical Standards (Formerly Subpart B Accessibility
Standards in the NPRM).

Comment. Subpart B of the proposed rule contained four sections:
1194.21 (General Requirements); 1194.23 (Component Specific Standards);
1194.25 Standards for Compatibility; and 1194.27 (Functional Performance
Criteria). The Board sought comment in the proposed rule on the organization of
Subpart B in general and 1194.21 (General Requirements), 1194.23 (Component
Specific Requirements) and 1194.25 (Requirements for Compatibility) in particular.
A number of commenters found the application of the proposed rule to be confusing
due to the manner in which the rule was organized. Commenters questioned whether
a specific product need only comply with the provisions under a specific heading in
1194.23 (Component Specific Requirements) or whether they must also look to the
provisions in 1194.21 (General Requirements), as well as 1194.25 (Compatibility).
Commenters further questioned whether multiple provisions within a specific section
would apply. For example, making electronic forms accessible was addressed under
1194.23(b) (Non-embedded software applications and operating systems).
Provisions for web sites were addressed separately in 1194.23(c) (Web-based
information or applications). Since electronic forms are becoming very popular on
web sites, the commenters questioned whether the provisions for electronic forms
under the software section should also be applied to web sites even though the
section on web sites did not specifically address electronic forms. Another
commenter pointed out that some provisions under 1194.21 (General
Requirements) actually addressed specific components such as touch screens, which
were addressed under General Requirements in the proposed rule. Finally, other
commenters noted that several provisions under 1194.23 (Component Specific
Requirements) were really compatibility concerns, such as 1194.23(b) (Non-
embedded software).

Response. A product must comply with the provisions under each applicable
section in Subpart B. For example, a telecommunications product that has computer,
software and operating systems, a keyboard, and web browser will have to comply
with each of the relevant sections in Subpart B. The Board has reorganized Subpart
B in the final rule as follows:

The title of Subpart B has been changed from "Accessibility Standards" to
"Technical Standards".

Subpart B has been reorganized so that each section addresses specific
products. For example, 1194.21 addresses software applications, 1194.22
addresses web-based intranet and internet information and applications, and so on.
Each technical provision that applies to a product is located under that product
heading. As a result, there is some redundancy in this section. However, the Board
believes that this format will help clarify the application of the standards for each type
of product. For example, the provision prohibiting the use of color alone to indicate
an action applies not only to web page design, but also to software design and certain
operating systems. In the final rule, it is addressed in 1194.21(i) (Software
applications and operating systems), 1194.22(c) (Web-based intranet and internet
information and applications), as well as 1194.25(g) (Self contained, closed
products).

The provisions contained in 1194.21 (General Requirements), 1194.23
(Component Specific Requirements) and 1194.25 (Requirements for Compatibility
with Assistive Technology) of the proposed rule have been moved to the new subpart
B (Technical Standards) in the final rule.

Also, the provisions in the proposed rule under 1194.27 (Functional
Performance Criteria) have been redesignated as Subpart C (Functional Performance
Criteria) in the final rule. Subpart C provides functional performance criteria for
overall product evaluation and for technologies or components for which there is no
specific provision in subpart B. The substance of each of the provisions in the final
rule are discussed below.

Section 1194.21 Software Applications and Operating Systems

Paragraphs (a) through (l) address provisions for software applications and
operating systems. Electronic and information technology products operate by
following programming instructions referred to as software. Software refers to a set
of logical steps (or programming instructions) that control the actions or operations of
most forms of electronic and information technology products. For instance, when a
pager receives a radio signal, the software embedded inside the pager determines
whether the signal is a "page" and how it should display the information it receives.
The circuitry inside the pager, including the display unit, merely follows the
instructions encoded in the software. Software can be divided into two broad
categories: software that is embedded in a chip mounted in a product and non-
embedded software that is loaded onto a storage device such as a hard disk and can
be erased, replaced, or updated. For instance, a word processing program that is
installed onto a computer's hard drive and which may be easily erased, replaced, or
updated is typically "non-embedded" software. By contrast, the set of instructions
installed on a chip inside a pager and which cannot be erased, replaced, or updated is
typically embedded software. The proposed rule included provisions for non-
embedded software. However, as pointed out by commenters, as technology
changes, the distinction between embedded software and non-embedded software is
increasingly becoming less clear. These provisions apply to all software products.

Paragraph (a) requires that when software is designed to run on a system that
has a keyboard, the software shall provide a way to control features which are
identifiable by text, from the keyboard. For example, if a computer program included
a "print" command or a "save" command (both can be readily discerned textually),
the program must provide a means of invoking these commands from the keyboard.
For people who cannot accurately control a mouse, having access to the software's
controls through keyboard alternatives is essential. For example, rather than pointing
to a particular selection on the screen, a user may move through the choices in a
dialogue box by pressing the tab key. (See 1194.23(a)(4) and 1194.23(b)(1) in
the NPRM.)

Comment. The NPRM required that products must provide logical
navigation among interface elements through the use of keystrokes. Commenters
questioned the meaning of "logical" and whether the provisions, as proposed, were
requiring that each system have a keyboard. Commenters were concerned that
requiring that all features of every software program be accessible from a keyboard
was not feasible because some programs that allow an individual to draw lines and
create designs using a mouse could not be replicated with keystrokes.

Response. This provision applies to products which are intended to be run
on a system with a keyboard. It does not require that a keyboard be added. The
term "logical navigation" has been deleted. Only those actions which can be
discerned textually are required to be executable from a keyboard. For example,
most of the menu functions in common drawing programs that allow a user to open,
save, size, rotate, and perform other actions on a graphic image can all be performed
from the keyboard. However, providing keyboard alternatives for creating an image
by selecting a paintbrush, picking a color, and actually drawing a design would be
extremely difficult. Such detailed procedures require the fine level of control afforded
by a pointing device (e.g., a mouse) and thus cannot be discerned textually without a
lengthy description. Accordingly, in the final rule, keyboard alternatives are required
when the function (e.g., rotate figure) or the result of performing a function (e.g., save
file confirmation) can be represented with words.

Paragraph (b) prohibits applications from disrupting or disabling activated
features of other products that are identified as accessibility features, where those
features are developed and documented according to industry standards.
Applications also shall not disrupt or disable activated features of any operating
system that are identified as accessibility features where the application programming
interface for those accessibility features has been documented by the manufacturer of
the operating system and is available to the product developer. The application
programming interface refers to a standard way for programs to communicate with
each other, including the operating system, and with input and output devices. For
instance, the application programming interface affects how programs have to display
information on a monitor or receive keyboard input via the operating system.

Many commercially available software applications and operating systems
have features built-into the program that are labeled as access features. These
features can typically be turned on or off by a user. Examples of these features may
include, reversing the color scheme (to assist people with low vision), showing a
visual prompt when an error tone is sounded (to assist persons who are deaf or hard
of hearing), or providing "sticky keys" that allow a user to press key combinations
(such as control-C) sequentially rather than simultaneously (to assist persons with
dexterity disabilities). This provision prohibits software programs from disabling these
features when selected. (See 1194.23(b)(2) in the NPRM.)

Comment. The proposed rule only specified that software not interfere with
features that affect the usability for persons with disabilities. Commenters from
industry noted that the provision in the NPRM did not provide any method of
identifying what features are considered access features and further stated that this
provision was not achievable. These commenters pointed out that it was impossible
for a software producer to be aware of all of the features in all software packages
that could be considered an access feature by persons with disabilities. Sun
Microsystems recommended that this provision address access features that have
been developed using standard programming techniques and that have been
documented by the manufacturer.

Response. This provision has been modified in the final rule to reference
access features which have been developed and documented according to industry
standards. No other changes have been made in the final rule.

Paragraph (c) requires that software applications place on the screen a visual
indication of where some action may occur if a mouse click or keystroke takes place.
This point on a screen indicating where an action will take place is commonly referred
to as the "focus". This provision also requires that the focus be readable by other
software programs such as screen readers used by computer users who are blind.
(See 1194.23(b)(3) in the NPRM.) No substantive comments were received and
no changes have been made to this section in the final rule.

Paragraph (d) requires that software programs, through the use of program
code, make information about the program's controls readable by assistive
technology. Simply stated, this paragraph requires that information that can be
delivered to or received from the user must be made available to assistive technology,
such as screen reading software. Examples of controls would include button
checkboxes, menus, and toolbars. For assistive technology to operate efficiently, it
must have access to the information about a program's controls to be able to inform
the user of the existence, location, and status of all controls. If an image is used to
represent a program function, the information conveyed by the image must also be
available in text. (See 1194.23(b)(4) and 1194.23(b)(5) in the NPRM.) No
substantive comments were received and no changes have been made to this section,
other than editorial changes.

Paragraph (e) requires that when bitmap images are used by a program to
identify programmatic features, such as controls, the meaning of that image shall not
change during the operation of a program. "Bitmap images" refer to a type of
computer image commonly used in "icons" (e.g., a small picture of a printer to
activate the print command). Most screen reading programs allow users to assign
text names to bitmap images. If the bitmap image changes meaning during a
program's execution, the assigned identifier is no longer valid and is confusing to the
user. (See 1194.23(b)(6) in the NPRM.)

Comment. As proposed, this provision did not identify which images had to
remain consistent during the application. The AFB commented that the provision
should be modified to indicate the type of image that needs to hold a consistent
meaning during the running of an application. AFB noted that this provision should
apply only to those bitmaps that represent a program function, and not to all images.

Response. The final rule applies the provision to those images which are used
to identify controls, status indicators, or other programmatic elements. No other
changes have been made to this section in the final rule.

Paragraph (f) provides that software programs use the functions provided by
an operating system when displaying text. The operating system is the "core"
computer software that controls basic functions, such as receiving information from
the keyboard, displaying information on the computer screen, and storing data on the
hard disk. Other software programs use the standard protocols dictated by the
operating system for displaying their own information or processing the output of
other computer programs. When programs are written using unique schemes for
writing text on the screen or use graphics, other programs such as software for
assistive technology may not be able to interpret the information. This provision does
not prohibit or limit an application programmer from developing unique display
techniques. It requires that when a unique method is used, the text be consistently
written throughout the operating system. (See 1194.23(b)(7) in the NPRM.)

Comment. The proposed rule did not specify that software programs must
use the functions provided by an operating system when displaying text. The NPRM
required that the text would be provided through an application programming
interface that supported interaction with assistive technology or that it would use
system text writing tools. Commenters raised several concerns regarding this
provision. Some commenters were concerned that without a recognized interface
standard, there was no assurance that assistive technology would be able to access
the text provided by an application. Software producers felt that the provision should
not unduly restrict how programs create or display text. Baum Electronics and GW
Micro pointed out that the only way to ensure that both assistive technology and
applications are using a common interface, was to use the text displaying functions of
the operating system.

Response. The Board agrees that using operating system functions is one
approach that would be available to all programmers. The final rule has been
modified to require that textual information be provided through the operating system
functions so that it will be compatible with assistive technology. This provision does
not restrict programmers from developing unique methods of displaying text on a
screen. It requires that when those methods are used, the software also sends the
information through the operating systems functions for displaying text.

Paragraph (g) prohibits applications from overriding user selected contrast
and color selections and other individual display attributes. As described above, the
operating system provides the basic functions for receiving, displaying, transmitting, or
receiving information in a computer or similar product. Thus, the operating system
would appear the logical choice for "system-wide" settings that would be respected
by all computer programs on a computer. Many modern operating systems
incorporate the ability to make settings system-wide as an accessibility feature. This
permits, for instance, users to display all text in very large characters. Often, persons
with disabilities prefer to select color, contrast, keyboard repeat rate, and keyboard
sensitivity settings provided by an operating system. When an application disables
these system-wide settings, accessibility is reduced. This provision allows the user to
select personalized settings which cannot be disabled by software programs. (See
1194.23(b)(9) in the NPRM.) No substantive comments were received and no
changes have been made to this section in the final rule.

Paragraph (h) addresses animated text or objects. The use of animation on a
screen can pose serious access problems for users of screen readers or other
assistive technology applications. When important elements such as push-buttons or
relevant text are animated, the user of assistive technology cannot access the
application. This provision requires that in addition to the animation, an application
provide the elements in a non-animated form. (See 1194.23(b)(11)in the NPRM.)
No substantive comments were received and no changes have been made to this
section in the final rule.

Paragraph (i) prohibits the use of color as the single method for indicating
important information. For instance, a computer program that requires a user to
distinguish between otherwise identical red and blue squares for different functions
(e.g., printing a document versus saving a file) would not comply with this provision.
Relying on color as the only method for identifying screen elements or controls poses
problems, not only for people with limited or no vision, but also for those people who
are color blind. This provision does not prohibit the use of color to enhance
identification of important features. It does, however, require that some other method
of identification, such as text labels, be combined with the use of color. (See
1194.21(a) in the NPRM.) No substantive comments were received and no
changes have been made to this section in the final rule.

Paragraph (j) requires software applications to provide users with a variety of
color settings that can be used to set a range of contrast levels. (See 1194.23(b)(8)
in the NPRM.)

Comment. The NPRM specified a minimum number of color settings. Some
commenters were concerned that the proposed provision was too specific, while
others felt it was too general because it failed to measure how different levels of
contrast would be produced. Several commenters suggested requiring "a wide
variety" of color settings as recommended by the EITAAC. One commenter noted
that, as proposed, the provision forbids a monochrome display. Commenters also
stated that some systems do not provide users with color selection capabilities.

Response. The provision in the final rule is limited to those circumstances
where the system allows a user to select colors. This provision requires more than
just providing color choices. The available choices must also allow for different levels
of contrast. Many people experience a high degree of sensitivity to bright displays.
People with this condition cannot focus on a bright screen for long because they will
soon be unable to distinguish individual letters. An overly bright background causes a
visual "white-out". To alleviate this problem, the user must be able to select a softer
background and appropriate foreground colors. The provision has been revised as a
performance standard rather than a specific design standard by removing the
requirement for 8 foreground and 8 background color selections.

Paragraph (k) limits the flashing or blinking rate of screen items. (See
1194.21(c) in the NPRM.)

Comment. The Trace Center expressed concern that research supported a
limit of 3 Hz, not 2 Hz as described in the NPRM. Trace suggested that the flash or
blink rate avoid any flickering between (but not including) 3 Hz and 55 Hz, which is
the power frequency for Europe.

Response. This provision is necessary because some individuals with
photosensitive epilepsy can have a seizure triggered by displays which flicker or flash,
particularly if the flash has a high intensity and is within certain frequency ranges. The
2 Hz limit was chosen to be consistent with proposed revisions to the ADA
Accessibility Guidelines which, in turn, are being harmonized with the International
Code Council (ICC)/ANSI A117 standard, "Accessible and Usable Buildings and
Facilities", ICC/ANSI A117.1-1998 which references a 2 Hz limit. The Board
agrees that an upper limit is needed, since all electrically powered equipment, even
an incandescent light bulb, has a "flicker" due to the alternating current line voltage
frequency (60 Hz in the U.S., 55 Hz in Europe). There does not appear to be any
significant incidence of photosensitive seizures being induced by the line voltage
frequency of ordinary lights. Therefore, the provision has been changed to prohibit
flash or blink frequencies between 2 Hz and 55 Hz.

Paragraph (l) requires that people with disabilities have access to electronic
forms. This section is a result of the reorganization of the final rule and is identical to
section 1194.22(n) discussed below. (See 1194.23(b)(10) in the NPRM.)

Section 1194.22 Web-based Intranet and Internet Information and Applications

In the proposed rule, the Board indicated that the EITAAC had
recommended that the Board's rule directly reference priority one and two
checkpoints of the World Wide Web Consortiums' (W3C) Web Accessibility
Initiative's (WAI) Web Content Accessibility Guidelines 1.0 (WCAG 1.0). Rather
than reference the WCAG 1.0, the proposed rule and this final rule include provisions
which are based generally on priority one checkpoints of the WCAG 1.0, as well as
other agency documents on web accessibility and additional recommendations of the
EITAAC.

Comment. A number of comments were received from the WAI and others
expressing concern that the Board was creating an alternative set of standards that
would confuse developers as to which standards should be followed. WAI was
further concerned that some of the provisions and preamble language in the NPRM
were inaccurate. On the other hand, a number of commenters, including the ACB
and several members of the EITAAC, supported the manner in which web access
issues were addressed in the proposed rule.

Response. The final rule does not reference the WCAG 1.0. However, the
first nine provisions in 1194.22, paragraphs (a) through (i), incorporate the exact
language recommended by the WAI in its comments to the proposed rule or contain
language that is not substantively different than the WCAG 1.0 and was supported in
its comments.

Paragraphs (j) and (k) are meant to be consistent with similar provisions in
the WCAG 1.0, however, the final rule uses language which is more consistent with
enforceable regulatory language. Paragraphs (l), (m), (n), (o), and (p) are different
than any comparable provision in the WCAG 1.0 and generally require a higher level
of access or prescribe a more specific requirement.

The Board did not adopt or modify four of the WCAG 1.0 priority one
checkpoints. These include WCAG 1.0 Checkpoint 4.1 which provides that web
pages shall "[c]learly identify changes in the natural language of a document's text and
any text equivalents (e.g., captions)."; WCAG 1.0 Checkpoint 14.1 which provides
that web pages shall "[u]se the clearest and simplest language appropriate for a site's
content."; WCAG 1.0 Checkpoint 1.3 which provides that "[u]ntil user agents can
automatically read aloud the text equivalent of a visual track, provide an auditory
description of the important information of the visual track of a multimedia
presentation."; and WCAG 1.0 Checkpoint 6.2 which provides that web pages shall
"[e]nsure that equivalents for dynamic content are updated when the dynamic content
changes."

Section 1194.23(c)(3) of the proposed rule required that web pages alert a
user when there is a change in the natural language of a page. The "natural language"
referred to the spoken language (e.g., English or French) of the web page content.
The WAI pointed out that the preamble to the NPRM misinterpreted this provision.
The preamble suggested that a statement such as "the following paragraph is in
French" would meet the provision. WAI responded by noting that this was not the
intent of the provision. The WCAG 1.0 recommend that web page authors embed a
code or markup language in a document when the language changes so that speech
synthesizers and Braille displays could adjust output accordingly.

The Trace Center advised that only two assistive technology programs could
interpret such coding or markup language, Homepage Reader from IBM and
PwWebspeak from Isound. These programs contain the browser, screen reading
functions, and the speech synthesizer in a single highly integrated program. However,
the majority of persons who are blind use a mainstream browser such as Internet
Explorer or Netscape Navigator in conjunction with a screen reader. There are also
several speech synthesizers in use today, but the majority of those used in the United
States do not have the capability of switching to the processing of foreign language
phonemes. As a result, the proposed provision that web pages alert a user when
there is a change in the natural language of a page has been deleted in the final rule.

The Board also did not adopt WCAG 1.0 Checkpoint 14.1 which provides
that web pages shall "[u]se the clearest and simplest language appropriate for a site's
content." While a worthwhile guideline, this provision was not included because it is
difficult to enforce since a requirement to use the simplest language can be very
subjective.

The Board did not adopt WCAG 1.0 Checkpoint 1.3 which provides that
"[u]ntil user agents can automatically read aloud the text equivalent of a visual track,
provide an auditory description of the important information of the visual track of a
multimedia presentation." Although the NPRM did not propose addressing this issue
in the web section, there was a similar provision in the multi-media section of the
NPRM.

The Board did not adopt WCAG 1.0 Checkpoint 6.2 which provide that
web pages shall "[e]nsure that equivalents for dynamic content are updated when the
dynamic content changes." The NPRM had a provision that stated "web pages shall
update equivalents for dynamic content whenever the dynamic content changes." The
WAI stated in its comments that there was no difference in meaning between the
NPRM and WCAG 1.0 Checkpoint 6.2. The NPRM provision has been deleted in
the final rule as the meaning of the provision is unclear.

A web site required to be accessible by section 508, would be in complete
compliance if it met paragraphs (a) through (p) of these standards. It could also
comply if it fully met the WCAG 1.0, priority one checkpoints and paragraphs (l),
(m), (n), (o), and (p) of these standards. A Federal web site that was in compliance
with these standards and that wished to meet all of the WCAG 1.0, priority one
checkpoints would also have to address the WAI provision regarding using the
clearest and simplest language appropriate for a site's content (WCAG 1.0
Checkpoint 14.1), the provision regarding alerting a user when there is a change in
the natural language of the page (WCAG 1.0 Checkpoint 4.1), the provision
regarding audio descriptions (WCAG 1.0 Checkpoint 1.3), and the provision that
web pages shall "ensure that equivalents for dynamic content are updated when the
dynamic content changes (WCAG 1.0 Checkpoint 6.2).

The Board has as one of its goals to take a leadership role in the development
of codes and standards for accessibility. We do this by working with model code
organizations and voluntary consensus standards groups that develop and periodically
revise codes and standards affecting accessibility. The Board acknowledges that the
WAI has been at the forefront in developing international standards for web
accessibility and looks forward to working with them in the future on this vitally
important area. However, the WCAG 1.0 were not developed within the regulatory
enforcement framework. At the time of publication of this rule, the WAI was
developing the Web Content Accessibility Guidelines 2.0. The Board plans to work
closely with the WAI in the future on aspects regarding verifiability and achievability
of the Web Content Accessibility Guidelines 2.0.

Paragraph (a) requires that a text equivalent for every non-text element shall
be provided. As the Internet has developed, the use of photographs, images, and
other multimedia has increased greatly. Most web pages are created using HTML,
or "HyperText Markup Language." A "page" in HTML is actually a computer file
that includes the actual text of the web page and a series of "tags" that control layout,
display images (which are actually separate computer files), and essentially provide all
content other than text. The tags are merely signals to the browser that tell it how to
display information and many tags allow web designers to include a textual
description of the non-textual content arranged by the tag. The provision is necessary
because assistive technology cannot describe pictures, but can convey the text
information to the user. Currently, most web page authoring programs already
provide a method for web designers to associate words with an image and
associating text with non-textual content is easy for anyone familiar with HTML. This
provision requires that when an image indicates a navigational action such as "move
to the next screen" or "go back to the top of the page," the image must be
accompanied by actual text that states the purpose of the image, in other words, what
the image is telling you to do. This provision also requires that when an image is used
to represent page content, the image must have a text description accompanying it
that explains the meaning of the image. Associating text with these images makes it
possible, for someone who cannot see the screen to understand the content and
navigate a web page. (See 1194.23(c)(1) in the NPRM.)

Comment. In the NPRM, 1194.23(c)(1) required text to be associated
with all non-textual elements, and prescribed the use of specific techniques, such as
"alt" and "longdesc," to accomplish that requirement. WAI commented that, while
the use of specific techniques was provided in WCAG 1.0 as examples of methods to
use, the proposed rule was limiting the manner in which text could be associated with
non-textual elements to two techniques. The result was that other approaches to
providing text tags in web languages other than HTML were prohibited.

Other commenters pointed out that many images on a web page do not need
text tags. They noted that some images are used to create formatting features such as
spacers or borders and that requiring text identification of these images adds nothing
to the comprehension of a page. These images were, in their view, textually
irrelevant. One commenter suggested that this provision should address "every non-
text element" because such features as buttons, checkboxes, or audio output were
covered by other provisions in the proposed rule.

Response. This provision incorporates the exact language recommended by
the WAI in their comments to the proposed rule. Non-text element does not mean all
visible elements. The types of non-text elements requiring identification is limited to
those images that provide information required for comprehension of content or to
facilitate navigation. Web page authors often utilize transparent graphics for spacing.
Adding text to identify these elements would produce unnecessary clutter for users of
screen readers.

The Board also interprets this provision to require that when audio
presentations are available on a web page, because audio is a non-textual element,
text in the form of captioning must accompany the audio, to allow people who are
deaf or hard of hearing to comprehend the content. (See 1194.23(c)(1) in the
NPRM.)

Paragraph (b) provides that equivalent alternatives for any multimedia
presentation shall be synchronized with the presentation. This would require, for
example, that if an audio portion of a multi-media production was captioned as
required in paragraph (a), the captioning must be synchronized with the audio. (See
1194.23(c)(12) and (e)(3) in the NPRM.)

Comment. Comments from organizations representing persons who are deaf
or hard of hearing strongly supported this provision. One commenter from the
technology industry raised a concern that this provision would require all live
speeches broadcast on the Internet by a Federal agency to be captioned. The
commenter noted that an alternative might be to provide a transcript of the speech
which could be saved, reviewed, and searched.

Response. This provision uses language that is not substantively different than
the WCAG 1.0 and was supported in the WAI comments to the proposed rule.
There are new techniques for providing realtime captioning which are supported by
new versions of programs like RealAudio. Providing captioning does not preclude
posting a transcript of the speech for people to search or download. However,
commenters preferred the realtime captioning over the delay in providing a transcript.
No substantive changes have been made to this provision in the final rule.

Paragraph (c) prohibits the use of color as the single method for indicating
important information on a web page. When colors are used as the sole method for
identifying screen elements or controls, persons who are color blind as well as those
people who are blind or have low vision may find the web page unusable. This
provision does not prohibit the use of color to enhance identification of important
features. It does, however, require that some other method of identification, such as
text labels, must be combined with the use of color. (See 1194.23(c)(2) in the
NPRM.)

Comment. The WAI expressed concern that as proposed, the provision did
not capture the intent of the provision as addressed in the WCAG 1.0. The intent of
such a requirement, according to WAI, was to have web page designers use methods
other than color to indicate emphasis such as bold text.

Response. This provision incorporates the exact language recommended by
the WAI in their comments to the proposed rule. This provision addresses not only
the problem of using color to indicate emphasized text, but also the use of color to
indicate an action. For example, a web page that directs a user to "press the green
button to start" should also identify the green button in some other fashion than simply
by color.

Paragraph (d) provides that documents must be organized so they are
readable without requiring browser support for style sheets. Style sheets are a
relatively new technology that lets web site designers make consistent appearing web
pages that can be easily updated. For instance, without style sheets, making headings
appear in large font while not affecting the surrounding text requires separate tags
hidden in the document to control font-size and boldface. Each heading would
require a separate set of tags. Using style sheets, however, the web site designer can
specify in a single tag that all headings in the document should be in large font and
boldface. Because style sheets can be used to easily affect the entire appearance of a
page, they are often used to enhance accessibility and this provision does not prohibit
the use of style sheets. This provision requires that web pages using style sheets be
able to be read accurately by browsers that do not support style sheets and by
browsers that have disabled the support for style sheets. (See 1194.23(c)(4) in the
NPRM.) This requirement is based on the fact that style sheets are a relatively new
technology and many users with disabilities may either not have computer software
that can properly render style sheets or because they may have set their own style
sheet for all web pages that they view.

Comment. The WAI commented that while the provision was consistent with
WCAG 1.0, the preamble inaccurately noted that this provision would prohibit the
use of style sheets that interfere with user defined style sheets. The WAI noted that a
browser running on a user's system determines whether or not style sheets associated
with pages will be downloaded.

Response. The WAI correctly noted that this provision does not prohibit the
use of style sheets that interfere with user-defined style sheets because the use of style
sheets is controlled by a user's browser. This provision uses language that is not
substantively different than WCAG 1.0 and was supported in the WAI comments to
the proposed rule. No substantive changes have been made to this provision in the
final rule.

Paragraph (e) requires web page designers to include redundant text links for
each active r