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