Friday, January 28, 2011

The Federal Rulemaking Process

AccessibleWeb@U Meeting — January 27, 2011
  • Rolf Johnson
    • Assistant Attorney General in the UW Division of the Attorney General's Office (http://uw.edu/admin/ago/) - Guest Speaker
  • Web Accessibility & The Proposed New DOJ Regulations: The Federal Rulemaking Process
    • Presentation available at http://uw.edu/accessibility/accessibleweb/rolfbj_rule_process.pdf
    • Summary
      • Positive law heirarchy
        • Constitutions
          • Written at broad level of abstraction
        • Statutes
          • Also written at broad level
          • May give agency specific authorities
            • DOJ is elaborating on what the ADA means and how it works
            • In this case Department of Justice has authority to make rules
        • Regulations
          • Legislative - implementing statutes
          • Non-legislative - guidance
            • State how laws will be interpreted
            • Policy statements - how the agency intends to exercise its discretionaly authority
          • Management and procedural
        • Legistative rules require Administrative Procedures Act (APA) process
          • These rules often called regulations
      • APA process generally
        • APA rulemaking also called "informal" or "notice-and-comment" rulemaking
        • Basic APA rulemaking rpcoess
          • NPRM - Notice of Proposed Rulemaking
        • Other Procedures
          • ANPRM - Advanced Notice of Proposed Rulemaking
          • SNPRM - Supplemental Notice of Proposed Rulemaking
          • IFR - Interim Final Rule
      • ADA Design Standards Revision
        • General physical and architectural standards were updated first
        • Timeline
          • Sept. 30, 2004 - ANRPM published
          • June 17, 2008 - NPRM published
          • September 15, 2010 - final rule published
      • Proposed Web Accessibility Rules
        • Results of comments received during ADA design standards
          • June 26, 2010 - ANPRM published
          • Nov - Jan 2010/11 - Three hearings held
          • Jan 24 2011 - ANPRM comment period closed
          • Jan 2012 - NPRM to be published
            • Typically comment period is 60-90 days
          • ??? - NPRM comment period closes
            • Nothing dictates that rules must be issued on any fixed timeline
          • ??? - final rule published
            • Maybe sometime in mid-2013
            • 6 months later - New rule goes into effect for new pages
            • Two years later - Rules go into effect for old pages and sites
  • Discussion
    • Interesting aspects of the ANPRM
      • Rules will apply to the UW both through ADA Title II in that we are a state entity and through Title III in that we are a public accomodation
      • Limitations of responsiblity
        • Not responsible for content posted or uploaded to site by persons outside or your control
        • Do not cover informal or occasional trading, selling or bartering, but would cover larger commercial enterprises
        • Not responsible for accessibility of sites that are linked to, but would be responsible if using the services on those sites are required to successfully use your site
          • Credit card transitions are often done by external services - are the service providers you are using accessible?
      • Final rules are not likely to be in place before mid-2013, possibly later than that
        • Once they are in place, there will be additional time to bring your sites into compliance
        • DOJ does not have to follow a fixed timeline. They may decide that the proposed rules are not practical and not release any rules.
    • Enforcement
      • Complaint based
      • Proactive enforcement not likely for a while
    • DOJ already assumes we are covered by ADA requirements under Section 504 of the Rehabilitation Act
    • Cloud services
      • To the extent we use cloud services to provide services, we become responsible for whether the cloud service is accessible
      • Typically we deal with accessibility, security, and privacy of cloud services through contracts
      • Language about accessibility should be in any contract we have
        • Including indemnification clause
        • Examples of language that should be in procurement contracts can be found at http://www.washington.edu/accessibility/procurement.html
    • It is up to us how strongly we work for accessibility, at least at the moment
      • The ADA already applies to us through Section 504
      • National Federal for the Blind is trying to build up case law relating to accessibility in higher education
      • Expectation of accessibility is a rising tide, more and more people thinking about it
        • It is a dormant liability out there we need to be aware of
        • How big is the danger?
          • Bad publicity
          • Lawsuits
          • Not delivering a quality work or education experience
      • AG's office was pleased to see us looking into this topic, they like the proactive energy
    • Will standards apply to distance learning programs the UW offers?
      • There is no out, exceptions are rare, so yes, our distance learning programs are covered
      • Rules do not seem very granular in the details
    • The UW comes under Title II, public accomdation talk is about Title III
      • General saying "are you a public accomodation, if yes, then this applies to you"
    • Risk management
      • Taking steps to avoid possibilities of suits, enforcement actions, bad publicity
      • What is the risk before the rules are in place
        • Not a huge risk, certainly a rising one
      • Core question is "what will the standards be?"
        • In the ANPRM, DOJ seems to be basically asking "is this practical, will people really be able to do this stuff"
        • The current somewhat vague situation means we are less likely to be sued now than in the future when more specific rules are in place
        • Complying with all the WCAG 2 Level AAA is very difficult
          • Jim Thatcher recommends WCAG2 Level A
          • If there is uninimity on level A, we should do it now simply as good professional practice
      • When people come looking for information that might be used in a lawsuit
        • Worth thinking about how we respond to such requests
          • Might be good to view such inquiries as the equivalent to discovery events; pass the request on to appropriate authorities
    • What should our general strategy be?
      • Not good to be an outlier, more likely to be targeted
        • Our overall compliance should be as good as our peers
      • Enforcing standards only one method
        • May actually make us more vulnerable because we may be held to our own standards
      • Encourage accessible design as a basic part of professional competence
        • Be professionally proactive and bring our stuff into compliance with WCAG 2.0 Level A
          • See http://webaim.org/standards/wcag/checklist, look for the success criteria that say Level A
        • Encourage competition and cooperation among peers
      • Recognize that accessible design makes things work for everyone
        • Lowers costs and hassles for all customers
      • Need to watch for discontinuities and black holes in the processes we expect people to participate in; one missing link can prevent them from using a much larger system