DOJ’s unexpected announcement further delays the much-anticipated rules regarding accessibility of government/public (and later private) websites, but indicates an open-mindedness to consider further public comment on the government’s direction and accessibility issues, and provides a new public comment period.

Website owners and operators have been eagerly awaiting the US Department of Justice’s (DOJ’s) expected pronouncement of disability access rules for websites under the Americans with Disabilities Act (ADA). In a surprise announcement on April 28, however, the DOJ abruptly withdrew its Notice of Proposed Rulemaking (NPRM) on website accessibility under Title II of the ADA, which applies to state and local government entities. The DOJ also issued a Supplemental Advance Notice of Proposed Rulemaking (SANPRM) to solicit public comments on what the Title II website accessibility regulations should contain. The DOJ’s actions mean that public entities (as well as private entities hoping to get a sense of what the Title III website accessibility regulations might require) will have to wait longer for the promised guidance. Significantly, however, this delay provides public and private entities an opportunity to offer their input.

Under the NPRM, the comment period for final regulations was set to end in April 2016, but the recently issued SANPRM starts the comment process anew. While the wait for final rules has been extended, the picture of what the rules will include is becoming clearer. The public comments that the DOJ is soliciting—such as on the technical requirements for websites and the costs and benefits of particular proposals—will be used to fashion proposed regulations for a new NPRM as a prelude to issuing final regulations, which should provide a good picture of what the NPRM will look like for private entities that are “public accommodations” under the ADA.

In its SANPRM, the DOJ seeks comments on the following proposals and issues, among others:

  • Definition of “Web content.” The DOJ is considering having its rule apply to all “Web content” regardless of whether it “is viewed on desktop computers, notebook computers, smart phones, or other mobile devices.” The DOJ is also considering a broad definition of “Web content” to include all “[i]nformation and sensory experience . . . that is communicated to the user by a Web browser or other software.”
  • Applicable standards. The DOJ “is considering proposing Web Content Accessibility Guidelines (WCAG) 2.0 Level AA as the accessibility standard that would apply to Web sites and Web content of [T]itle II entities.”
  • Timeframe for compliance. The DOJ is considering requiring public entities to make their websites compliant with WCAG 2.0 Level AA within “two years from the publication of this rule in final form.” The proposal makes an exception for Success Criterion 1.2.4 on live-audio content in synchronized media, for which the DOJ is considering allowing three years to comply due to the technical difficulties involved. The proposal also creates an exception, similar to other provisions in the ADA, for when compliance “would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.”
  • Potential exceptions to Web access requirements. The DOJ is considering exceptions for “(1) archived Web content; (2) certain preexisting conventional electronic documents; (3) third-party Web content linked from a public entity’s Web site; and (4) certain Web content posted by third parties on a public entity’s Web site.”
  • Conforming alternate versions. The DOJ is considering allowing “conforming alternate versions” (e.g., a separate, accessible Web page with the same information as an inaccessible Web page) only if technical or legal limitations prevent making “Web content” accessible, or if they are used to provide access to conventional electronic documents.
  • Measuring compliance. The DOJ seeks comments on the effect of minor or temporary noncompliance, whether a certain percentage of “Web content” must be accessible, whether there is an acceptable level of noncompliance, and whether there are circumstances under which Web accessibility errors do not pose barriers to access.
  • Mobile application accessibility. The DOJ asks whether the rule should address mobile application accessibility and, if so, what standards should be adopted.
  • Costs and benefits of the rule. The DOJ will consider, on the one hand, the benefits to people with disabilities, the benefits of Web usage, the benefits of the WCAG 2.0 Level AA, the benefits to other individuals and entities, and time-saving benefits; and, on the other hand, the methods of compliance (e.g., whether to remediate an existing website or create a new one), compliance costs, indirect costs like “down time” and regulatory familiarization and administrative costs, and public entities’ resources.

While the DOJ’s SANPRM addresses the Title II public entity regulations, it will affect private entities in at least two ways: First, certain private entities contract with public entities, which frequently require their vendors to comply with the Title II rules. More broadly, the DOJ is expected to use the Title II regulations as a template for future Title III regulations. For this reason, private entities should consider submitting comments in response to the Title II SANPRM.

Written comments must be postmarked, and electronic comments submitted, within 90 days of the SANPRM’s publication in the Federal Register. Morgan Lewis expects to prepare comments for various entities. Please contact us if you would like to discuss submitting comments.