CUNA Regulatory Comment Call

November 18, 2010

ANPR: Web Accessibility Guidelines Under the Americans with Disabilities Act

EXECUTIVE SUMMARY

Please send comments on the ANPR (accessible here) to Senior Vice President and Deputy General Counsel Mary Dunn and Regulatory Counsel Luke Martone, or contact us at (800) 356-9655 ext. 6743 with any questions.

Brief Description of the ANPR

Since enactment of the Americans with Disabilities Act (ADA) in 1990, the DOJ—which is responsible for enforcing the ADA—has adopted and subsequently amended regulations necessary to implement the various provisions of the ADA. The DOJ has previously adopted regulations implementing Title III of the ADA, which prohibits discrimination on the basis of disability in the activities of places of public accommodation (this includes credit unions) and requires new or altered construction to comply with ADA standards.

The DOJ issued the ANPR in response to concerns that the many websites of public accommodations that lack accessible features are difficult or impossible for individuals with disabilities to use. Specifically, the DOJ is considering amending its regulations—which currently do not address web accessibility—to require public accommodations that provide products or services to the public through websites to make their sites accessible to and usable by individuals with disabilities under the legal framework established by the ADA. While the ANPR also seeks input regarding the websites of state and local government entities, this comment call focuses only on web accessibility standards as they would apply to public accommodations.

The DOJ believes that in most instances, removal of the accessibility barriers described below would be neither difficult nor especially costly, and in most cases, providing accessibility would not result in changes to a site’s format or appearance.

Need for DOJ Action

Individuals with disabilities often use assistive technology to enable them to navigate or access information on websites. However, many websites fail to incorporate or activate features that allow these users to access all the site’s information or elements. For instance, individuals who are deaf are unable to access information in web videos and other multimedia presentations that do not have captions, and individuals with low vision may be unable to read websites that do not allow the site’s font size or color contrast to be modified.

According to the DOJ, one of the most common barriers to website accessibility is images that lack corresponding descriptions. A screen reader or similar assistive technology cannot “read” an image, leaving individuals who are blind with no way of independently knowing what information the image conveys. Similarly, complex websites often lack navigational headings or links that would allow use of a screen reader or may contain tables with header and row identifiers that display data, but fail to provide associated cells so the information can be interpreted by a screen reader.

Scope Limitations

The ANPR suggests that the scope of web accessibility regulations would likely be limited to websites and web content within the control of the public accommodation. For example, the DOJ is considering proposing that web content created or posted by website users for personal, noncommercial use would be outside the scope of the rule, even if such content were posted on the website of a public accommodation.

In addition, the ANPR suggests that a public accommodation would not be required to ensure the accessibility of websites—that it does not control—that are linked to its site. However, to the extent an entity requires users of its website to utilize another website in order to take part in its goods or services, the entity may be liable for the accessibility of such other sites.

Effective Date

The DOJ is considering an effective date of six months after publication of the final rule for newly created or completely redesigned websites or pages. This would require compliance for any such site or page that is brought online later than six months from the date the final rule is published.

The DOJ recognizes that certain features on existing websites—such as navigation components or use of integrated web technology with limited capacity for accessibility—cannot be completely altered or replaced without a complete redesign of the entire site. Therefore, the DOJ is considering requiring new pages on existing websites to comply with the accessibility requirements to the maximum extent feasible, even though in some cases this could result in incomplete accessibility of new pages.

For existing websites or pages, the DOJ is considering a delayed effective date of two years after publication of the final rule, since many websites have hundreds of pages that will need to be made accessible.

Questions to Consider Regarding the ANPR

  1. The ANPR offers general scope limitations. Should the DOJ adopt any specific parameters regarding its proposed coverage limitations?
















  2. What resources and services are available to public accommodations and/or credit unions to make their websites accessible? What is the ability of covered entities to make their websites accessible with in-house staff? What technical assistance should the DOJ make available to public accommodations to assist them with complying with a web accessibility rule?
















  3. Are there distinct or specialized features used on websites that render compliance with accessibility requirements difficult or impossible?
















  4. In the past, the DOJ has taken the position that covered entities with inaccessible websites may comply with the ADA’s requirement for access by providing an accessible alternative, such as a staffed telephone line. Given that most websites today provide significant amounts of services and information in a dynamic, evolving setting that would be difficult—if not impossible—to replicate through alternative means, to what extent can accessible alternatives still be provided?
















  5. Are the proposed effective dates of six months for new websites and two years for existing websites reasonable, or should the DOJ adopt shorter or longer periods for compliance?
















  6. Do you believe a web accessibility rule would cause some businesses and/or credit unions to remove older material rather than change the content into an accessible format? Should the DOJ adopt a safe harbor for such content so long as it is not updated or modified?
















  7. Should the DOJ take an incremental approach in adopting accessibility regulations applicable to websites and adopt a different effective date for covered entities based on certain criteria? For instance, should the DOJ’s regulation initially apply to entities of a certain size or certain category (such as financial institutions)?
















  8. What are the annual costs associated with creating, maintaining, operating, and updating a website? What additional costs are associated with creating and maintaining an accessible website?
















  9. What, if any, are the likely or potential unintended consequences (positive or negative) of website accessibility requirements? For example, would the costs of a requirement to provide captioning to videos cause covered entities and/or credit unions to provide fewer videos on their websites?
















  10. Any other comments or questions regarding the ANPR.
















Eric Richard • General Counsel • (202) 508-6742 • erichard@cuna.com
Mary Mitchell Dunn • SVP & Deputy General Counsel • (202) 508-6736 • mdunn@cuna.com
Luke Martone • Senior Regulatory Counsel • (202) 508-6743 • lmartone@cuna.com