American Council of the Blind 

Comments on Access Board’s Refresh of Section 508 and 255 Standards and ADAAG 

June 16, 2010 

36 CFR Parts 1191, 1193, and 1194

[Docket No. 2010-1] – RIN 3014-AA37

Introduction

On March 22, 2010, The Architectural and Transportation Barriers
Compliance Board (Access Board) published an Advance Notice of Proposed
Rule Making in the /Federal Register/ related to the revision of
standards implementing Section 508 of the Rehabilitation Act and Section
255 of the Telecommunications Act. In addition, the Access Board
provided a further notice regarding an update to certain relevant
sections of the Americans with Disabilities Act (ADA) Accessibility
Guidelines for Buildings and Facilities. Consolidated as “ANPRM for
Updating ICT Guidelines and Standards (ADAAG, 255, 508),” the advance
notice seeks feedback on such items as future federal procurement
standards related to accessible technologies, web site and software
access, access to telecommunications devices, and access to self-service
kiosks.

The comments in response to this ANPRM are provided on behalf of The
American Council of the Blind (ACB), a nonprofit organization that
represents the interests of blind and visually impaired people
throughout the United States. Based in the Washington D.C. area, ACB has
tens of thousands of members from across this country who belong to more
than 70 state and special interest affiliates. Being the nation’s
leading blindness organization, ACB represents members from all walks of
life who display interests in a variety of activities including
business, education, the arts, to name a few. Its special interest
groups are comprised of, among others, teachers, government employees,
attorneys, students, information technologists, and artists.


ACB and its affiliates conduct a large number of advocacy, social, and
cultural activities. Central too many of these activities is
collaboration with the government, K-12 and higher education, the
private sector, and international entities to improve opportunities for
all blind and visually impaired people. Recent examples of such
collaboration include addressing concerns such as full access to
education for students, full access to the work environment for blind
employees, access to entertainment and educational content such as
visually displayed information at sports facilities and information
contained in videos as well as full access to the increasing array of
technology options in a multitude of settings.


Constructed to provide feedback specifically tailored from the
perspective of blind or visually impaired Americans—who stand to benefit
from the revisions proposed in the ANPRM through increased
accessibility, the sections below focus on responses to organizational
concerns, respond to potential financial effects of proposed changes, as
well as address specific concerns regarding technical standards and
advisories in the document. However the comments below first initiate
the discussion of the ANPRM by addressing broad issues that affect the
overall structure and process. Subsequent sections discuss specific
items that could affect persons who are blind, visually impaired, or
deaf-blind. Additional sections provide feedback on the updates to the
Americans with Disabilities Act Accessibility Guidelines related to
certain self-service kiosks and respond to relevant questions posed by
the Access Board.

General Notes and Broad Concerns

Prior to beginning a discussion regarding specific questions for which
feedback is sought as well as before addressing specific provisions, it
is vital to note that ACB commends the Access Board for initiating the
process by which the refresh of Section 508 and Section 255 standards
will take place. While it has been a lengthy process, it has nonetheless
resulted in a set of proposed standards that will benefit blind or
visually impaired people in the long term. It is clear that the Access
Board has spent significant amount of time revising the proposed
material to ensure that the standards are relevant and that they will
provide access to Information and Communication Technologies (ICT) in a
rapidly changing landscape. ACB recognizes the herculean amount of work
taken place in processing the TEITAC Report
(www.access-board.gov/sec508/refresh/report/
<http://www.access-board.gov/sec508/refresh/report/>). The following
four areas, in particular, are vital in considering the updates the
proposed standards. Detailed discussion of some of the specifics take
place in sections below.


1.       Harmonization of Section 508 and Section 255 standards_. _ The
increased level of convergence in Information and Communication
Technologies requires that hardware, software, and services that are
covered by both Section 508 and Section 255 are developed and maintained
with accessibility being a core measurement. The harmonization of the
two standards will not only mean that developers and manufacturers will
have a single place where readily available information will reside,
but, more important, the harmonization will ensure that gaps in
standards no longer exist—gaps in standards and requirements that may
result in an un-level playing field for them. ACB is pleased to see that
manufacturers and developers will be able to turn to a single set of
requirements for multiple needs.

2.       Harmonization with the Web Content Accessibility Guidelines.
 The separation of efforts requiring adherence to difference set of
guidelines to ensure accessibility to website content has often caused
confusion in the past. ACB believes that this particular effort to
harmonize Section 508 requirements to those established in World Wide
Web Consortium’s Web Content Accessibility Guidelines will serve as an
effective method to reduce confusion, will increase efforts to provide
consistent technical assistance for developers, and overall will
increase the availability of accessible content to blind or visually
impaired people by significantly reducing the burden for developers.

3.       Provision of advisories and examples_. _ In a number of places,
ACB is pleased to see that the proposed standards incorporate
advisories, examples, and sub clauses that attempt to clarify the intent
of the standards. Other than serving to simplify the requirements set
forth in these proposed standards, such advisories and examples will
also ensure that future technologies are covered. They also serve as a
much-needed technical assistance resource for developers and
manufacturers needing to quickly make products and services accessible.

4.       ADA   Accessibility Guidelines (ADAAG) updates for certain
kiosks_. _ Although limited, ACB is pleased to see the Access Board
consider certain categories of information and se-service kiosks being
covered as an essential feature of a blind person’s environment. Through
the commenting process, ACB hopes that the Access Board will modify the
requirements to address some of the significant concerns noted in
sections below.


    Missing Provisions That Create Gaps


In reviewing the proposed standards, ACB has identified the following
two key areas where the needs of blind and deaf-blind persons are
entirely missing. The standards fail to take into account scenarios
which would require operations by multiple modalities. Without fully
considering these, it will be possible for the ICT to be considered
accessible in accordance with Section 508 and Section 255 standards;
however, the technology will not be usable by certain categories of
individuals with disabilities. ACB encourages the Access Board to review
the TEITAC report regarding these recommendations as well as review the
proposed language and solutions below


      Audio Without Alternative Equivalence


No provision in the proposed standard addresses the question of
information presented in the audio form without an alternative
equivalent in a form that is perceivable by a person with a disability
with or without assistive technology. Aside from leaving behind all deaf
or hard of hearing persons, the lack of this provision severely affects
deaf-blind people, who are unable to perceive either audio or
information presented in pure visual form. In addition, the lack affects
individuals with cognitive and learning disabilities.


        The Problem

One of the most important provisions in any set of accessibility
guidelines is one stating that any information that is needed for
operation that is presented in Audio also be available in an alternative
format that is perceivable by a user with a disability with or without
using assistive technology. Without this provision individuals who are
deaf or deaf-blind will not be able to access the information.


        What Is Covered (and Not Covered) By Current ANPRM Language

      In Chapter 8 the ANPRM has a number of provisions that place
      requirements on products with audio output, but they are all
      designed to facilitate access for people who are hard of hearing.
          o They do not require an alternate presentation of the audio
            information such that Chapter 8 provisions do not address
            the needs of people who are deaf or deaf-blind.
      Chapter 6 (Synchronized Media Content and Players) only requires
      alternate formats (e.g. captions or transcripts) for "materials".
          o These provisions do not apply to products in general; and,
            therefore, these provisions would exclude closed or other
            products that rely on audio only presentations.
      There are no provisions in the ANPRM that require non audio
      equivalent if a product beeps or provides synthetic speech output.

 

There needs to be a provision that covers all types of audio output
(from a speaker or from the natural operation of the device) that are
required for product use. 


        Examples of the Problem


For example, with the current ANPRM language/rules …


devices or systems could be created such as the ones found below that
pass all the technical provisions but that are not accessible to people
who are deaf or deaf-blind:
 

      a device that beeps (but provides no alternative indication) when
      you are entering data (the beep indicating that the product will
      be ignoring the keystrokes).
      a device that forwards instructions it receives to the user via
      synthetic speech only
      a data recording system that detects an error and gives a warning
      in synthesized speech (only) that it has ceased recording/monitoring.
      A CAPTCHA system with audio and visual system without the ability
      for a deaf-blind person to solve the CAPTCHA.


        Suggested Edits and Wording Changes: 


It is suggested that the following provision be added to Chapter 3
(Common Functionality)

 

3xx Access to Audio Information. ICT shall provide at least one mode of
operation where audio is not the only means of conveying information,
indicating an action, or prompting a response. Such an alternative mode
of operation shall be perceivable to people with disabilities with or
without using assistive technology.

 

Exception: If the audio information is an alerting signal meant to alert
at a distance, and the product will work with external non-auditory
alerting technologies and is not a public device, the alerting
functionality does not need to meet this provision. This uses the same
"at least one mode" form as provision 404.4, 704.2, and 905.3.2.3.1.


      No Technical Provision Requiring That All Information Presented
      Visually Also Be Available Non-Visually


Another most important provision in any set of accessibility guidelines
is one stating that any information (that is needed for product use)
that is presented Visually also be available Non-visually. Without this
provision individuals who are blind will not be able to access the
information in an equivalent manner.


On computers and other devices that have operating systems and assistive
technologies that can read contents aloud to a user, a common strategy
is to expose all information that is presented visually in a form that
can be read by the assistive technology. A person who is blind can then
use the assistive technology (e.g. screen reader) to review the
information verbally or via Braille display technology. The ANPRM has a
large number of provisions that refer to making information accessible
to assistive technologies or making it "programmatically determinable"
(which means it can be read by assistive technologies and other
accessibility software/features).


        The Problem

Not all ICT has an operating system, or has assistive technologies
available for it. Products such as kiosks and financial transaction
machines that have operating systems may have screen readers available
for them. However users are not allowed to open, install, or attach
their own assistive technologies.


For these circumstances:


      the product does not allow the user to attach or install assistive
      technology
      product does not have an operating system
      there is no assistive technology to present the information
      non-visually

 

There must be a requirement that ensures that any information presented
visually (that is needed for product use) will also be available
non-visually. The current ANPRM does require that labels on controls be
available non-visually, but does not require any of the other
information on the product to be available non-visually. The most
prominent examples of devices with such controls in the past were ATM
devices which provided braille labels to buttons without audio output.


        Examples

 

For example, with the current ANPRM language/rules one could create

 

      a kiosk that allows users who are blind to have access to all of
      the buttons but none of the text on any of the screens
      a data collection device where you could operate the controls but
      not have access to any of the information displayed
      an e-book reader with accessible controls but no way to access the
      contents of the books


          Current Section 255 Language

 

The current Section 255 rules have the following provision:

 

S 1193.43 ( ) (a) Availability of visual information.

Provide visual information through at least one mode in auditory form.

 

This not only provides access for individuals who are blind, but also
provides access to most individuals with a print disability.


        Suggested Edits and Wording Changes: 

 

It is suggested that the following provision be added to Chapter 3
(Common Functionality) 

 

3xx Access to visual Information. All information that is provided in
visual form, and that is needed for operation and use, must also be
available in spoken form in at least one mode or in a form perceivable
by users with or without the use of assistive technology.

 

Exceptions:

 

1.      Visually presented Information that is programmatically
determinable and that is on a product where users can install their
assistive technologies to present the information in speech or Braille
is not required to meet this provision.

2.      Information that is of a simple alerting nature (no text) and is
also available as a vibration that a user will feel is not required to
meet this provision.


    Provisions That Do Not Meet Objective As Worded

 

There are some provisions that address key access issues but their
current wording is incomplete or worded such that they will not address
the target problem. Some are errors that were made by TEITAC in
deliberation and reporting. Some occurred as part of the large
reorganization and translation into legal format. The items that have
been identified include.


      Identifying Applicable Provisions

 

In the ANPRM, the Access Board defines specific covered product
categories by separating covered technical requirements in Chapter three
through nine. Chapter 2 serves as a reference point for functional
requirements in cases where the technical specifications do not meet
given technologies. Chapter ten serves as the culminating point and
covers support services and support documentation.


        The Problem

 

E103.5 and C103.6 in the ANPRM identifies specific criteria set forth in
Chapters 3 through 9 as the ultimate authority for specific product
category and further defines Chapter 2 to cover functional criteria.
However it is confusing to find that support documentation and services
specified under Chapter 10 are not covered in E103.5


        Suggested Edits and Wording Changes: 

 

This provision should also apply to Chapter 10. Using explicit “ICT”
needs” to help define the application of these regulations is a
reasonable point of departure, but it may be problematic. Some product
features do not necessarily map to an “ICT” need”. That is, the feature
is a design decision about how to meet the need, not something that
addresses the need itself. For example, user input may come through a
set of dedicated buttons or a touchscreen; different provisions would
apply in the two cases. Similarly, content may be made available only in
text, or in an animation, again requiring attention to different
provisions. In the final analysis, only vendors can be expected to be
fully aware of all the relevant features of their products; it will
often not be feasible for agencies to create requests for proposals or
quotes that include the “right” provisions, nor will it be feasible for
them to perform comprehensive market research using the protocols
defined in E103.5 and C103.6.


      Need for Better Coverage of Closed Products and Closed Functions

 

We are seeing more products appearing with closed functionality and the
Access Board recognizes this fact and must be commended for asking for
more input. This is important as key aspects of making closed
functionality accessible need to be addressed in the regulations.

 

First, the two provisions mentioned earlier (non-visual alternatives to
visual information and alternatives for audio information) are critical
for ensuring that closed products are accessible.

 

Second, exceptions are missing that were present in the TEITAC report
that said that closed products (or closed functionality) did not need to
meet the assistive technology compatibility provisions. It is important
to restore these exceptions or else closed products (or closed
functionality) will be required to meet all of the AT compatibility
provisions (even though by definition they cannot work with AT. It would
be counterintuitive and burdensome to require closed systems to be
compatible with all AT unless the intention is to allow closed systems
to be attached to AT. On the other hand, there is no requirement that
the closed products provide the same accessibility functions that would
be provided through AT if they were open. This needs to be added or the
accessibility that would be provided via AT in open products will not be
present in closed products.

 

While the language provided in the ANPRM approaches what is needed, it
does not strike the correct balance. If not corrected, the goal of
ensuring access in closed systems will not be reached. This lack of
clarity could affect such closed systems as next generation of
multi-purpose copying centers, printers, and stand-alone
telecommunication devices. ACB believes that blind or visually impaired
people will continue to encounter increasing array of closed products
that are inaccessible if these key concerns are not addressed.


      Interoperability Provisions Must Specify a Common Format for
      Interconnection to Work

 

The intent of the ANPRM interoperability provisions is to ensure that
products from different manufacturers will work with each other. This is
key because, if the sending, transporting, and receiving technologies do
not support a common format where they interconnect with each other,
then transmission will not be possible from one end to the other. When
one manufacturer does not know, in advance, at least one format that all
the other manufacturers in the system (that they might be connecting to)
will support, it is impossible to design and manufacture a product that
will work with— that will interoperate with—the other products (when on
the market). A similar problem occurs when two products need to
interconnect physically.

 

For this reason the Access Board is careful to be very specific about
connectors and formats to be used in most of its interoperability
provisions. However, in two places, the provisions simply state that the
manufacturers must be compatible with each other, without specifying the
standard they should use where they interconnect. One is the provision
on Real-time text. The other is video communication. Multiple
manufacturers have stated that unless a standard is specified they will
be unable to build products that would conform since there is nothing
specified to conform to. Products from other vendors may each use
different formats, whichever are his easiest or most convenient for
their system. 

 

The Access Board has provided specifications for PSTN and PBX systems.
But specifications are not provided for the IP based systems. The Access
Board has noted this problem and asked specific questions about it in
the preamble Question 26.

 

NOTE: The requirement here is not that everyone use the same format
within their systems. The Access-Board ANPRM provisions allow any
reliable format to be used within systems. The need is only that the
systems support a common format where they will connect with other
equipment outside of their control. Even then they do not need to use
the common format if the system they connect to happens to support their
proprietary or any other preferred format. But the one common format is
needed to ensure that there is at least one format that they all support
so that text (or video) can flow from one end to the other across and to
unknown manufacturer's equipment.

 

ACB believes that this is an important topic as, without an
interoperability specification (at least one common interconnection
format that everyone must support), there Will not be any
interoperability in the text and signing-quality video telecommunication
like there is in voice. It is vital that one common interconnection
format be specified to ensure that deaf-blind individuals who must rely
on Real-time text are able to do so regardless of the manufacturer of
the device they are using to communicate. A common format will avoid
unnecessary confusion and will increase reliability.


    Provisions in Incorrect Sections or Scoped Incorrectly

 

The wording of some sections (or location of some provisions) has
provisions restricted to one product type when they should be scoped
more broadly or some technologies will not be covered. Other provisions
are scoped too broadly and apply to products that cannot meet them.
(These are noted in the provisions or sections where they occur)


    Concerns Regarding Functional Performance Criteria

 

As currently worded, some of the functional performance criteria are
testable while others are not. This makes it difficult to use the ones
that are not testable as an overall test of accessibility. It is
important that the functional performance criteria be able to continue
to serve this role 1) so that they can be used in applying equivalent
facilitation, and 2) so that they can be used as an overall test to
determine whether the technical provisions fully address the
accessibility issues for a given product. The Board has asked questions
both about the general role of the Functional Performance Criteria
(Question 10) and about several specific FPC (Questions 10 through 15).


    Questions for Access Board

 

There are several areas of the ANPRM where clarification is sought
regarding the language being used or where ACB believes that the Access
Board needs to focus more attention in order to clarify. These include:

 

1.      In 405.2 - was there a specific reason to change time limit to 8
hours from the 20 hours cited in WCAG?

2.      In 405.3 - what does 'not in the same location' mean? (It is
unclear why the location would change the problem.)

3.      E103.5 and C103.6 use the phrase ".If there are applicable
provisions in Chapters 3 through 9 that fully address the product being
designed, developed, or fabricated...."

a.       What does "fully address" mean?

b.      How would one determine that the technical provisions "fully
address" the product?

 

 Specific Comments Related to Provisions for Persons Who Are Blind,
Visually Impaired, or Deaf-Blind   

 

This section provides specific commentary on the ANPRM provisions that
affect people who are blind, visually impaired, or deaf-blind. in
contrast with general comments and notes above, these comments provide
recommendations and suggestions on technical, functional, and fiscal
aspects of the ANPRM.


    Cost of Telecommunication Device Accessibility to Users

 

In C102.1, the ANPRM language proposes:

 

C102.1 General. Manufacturers of telecommunications products shall apply
the provisions of this part in order to ensure that the equipment is
designed, developed, and fabricated to be accessible to and usable by
individuals with disabilities, if readily achievable.

 

This provision fails to take into account the extraordinary cost often
passed on to users of assistive technology—especially blind or visually
impaired users who must rely on software such as screen readers to
access the features designed, developed, or manufactured by companies
who believe access as an add-on business.


        The Problem

 

Manufacturers of cell phone devices and developers of software
(operating systems) for such cell phone devices either do not consider
the needs of blind or visually impaired users when developing their
product or, when they do, accessibility is considered to be an add-on
service, which requires the user of the device to purchase assistive
technology software that costs between $300 and $500 each time a cell
phone is purchased. This price, in the United States, is often
equivalent to (or more often) larger than the cost of the cell phone
device itself.

 

By introducing the iPhone 3GS in June 2009, Industry participant Apple
proved that full access to the operating system on a mobile device was
feasible by ensuring that a fully-developed screen reader was included
on the device without additional cost to the screen reader user. It is
possible to ensure that the cost of manufacturing and disseminating a
screen reader is possible without passing on the costs of the given
assistive technology to the end user. Regardless of the method used to
design and develop the screen reader—whether developed internally or
developed by a partner, the decision to pass on the cost of the
assistive technology to the end user is made for business reasons.

 

ACB believes that the costs for screen reading technologies required to
access functionality in cell phones be covered by either the developer
of the operating system or the developer of the hardware on which the
operating system resides.

 

The current lack of specificity in the ANPRM will result in:

 

      The costs for screen readers being passed on to end users
      The costs for screen readers being passed on to government
      agencies, small businesses, and large businesses whose employees
      require such assistive technologies


        Suggestions for Edits

 

It is suggested that the following requirement be added to C102 to
remedy this lack of specificity:

 

C102.2 No Additional Charge for Design, Development, Manufacturing, or
Fabrication of Accessibility services. Manufacturers of
telecommunications products shall make the accessibility designed,
developed, and fabricated for telecommunication devices available to all
users at no additional charge.

 

Accessibility services shall include underlying technologies to connect
with external assistive technology devices, Application Programming
Interfaces (APIs) used to communicate with assistive technology
software, and screen reading and screen magnification software required
to access services and software on the device.

 

It is further suggested that the following requirement be added to C105:

 

C105.1 No Additional Charge for Alternative Designs or Technologies of
Accessibility services. Manufacturers of telecommunications products
shall make alternative designs or technologies for telecommunication
devices available to all users at no additional charge.


    Meeting Gaps in “Best Needs”

 

E108 of the ANPRM states the following:

 

When procuring ICT, each agency shall procure ICT which complies with
the provisions in this part when such ICT is available in the commercial
market place or when such ICT is developed in response to a government
solicitation. If ICT is commercially available that meets some, but not
all of the provisions, the agency must procure the product that best
meets the provisions of this part, consistent with the business needs of
the agency.


        The Problem

 

It is laudable that the Access Board covers the purchasing and
developing of technologies needed to conduct agency functions in E108 by
ensuring that agencies are required to purchase and develop technologies
that meet the provisions defined in the proposed regulations. It is
further understandable that the scope of commercial technologies
purchased to perform a certain task meet the business needs defined by
the agency. While there is a general provision to ensure that the
commercial technology be accessible, the difficulty lies with technology
that /only/ meets certain criteria set forth in the ANPRM and yet will
be purchased to meet the agency’s business needs. This exception, as
currently defined, will result in agencies purchasing commercial systems
that only meet certain accessibility criteria without having to consider
the need to ensure access to remaining functionality, adversely
affecting employees with disabilities and the general public.

 

ACB is concerned that no provision is set forth to address how the
agency will meet its obligation to people with disabilities—whether
employees of the said agency or the general public—in order to ensure
that the areas of the commercial technology purchased to meet certain
business processes will be made accessible after purchasing the
commercial system. ACB strongly believes that this gap in ensuring
access to existing commercial services will negatively impact blind,
visually impaired, or deaf-blind employees who either work for the
covered agencies or the general public who must rely on assistive
technology to access the commercial technology. The agency may indeed
rely on its business processes to make the determination of purchasing
the commercial system; however, at the same time, the agency must also
be required to ensure that all the identified business processes are
accessible with or without using appropriate assistive technology.


        Examples of the Problem

 

      An agency purchasing a commercial software system to meet its
      security requirement which relies on identifying images or other
      visual means where the software meets with all criteria of the
      ANPRM except the identification of the visual security feature
      without an equivalent perceivable alternative
      An agency purchasing a commercial medical records software package
      which utilizes scanned images of the medical records where all
      other parts of the system being in conformance except the ability
      to accessibly view and manipulate such records by blind, visually
      impaired, or deaf-blind employees
      An agency purchasing a commercial system to accept applications
      for a Federal service which relies on inaccessible form controls
      but provides access to text and other parts of the application process


        Suggested Edits and Wording Changes: 

 

To remedy this significant gap in access —a gap which could affect
employees and people with disabilities wishing to access government
services, it is suggested that the following be appended to E108: “If
ICT is procured from commercially available options to meet particular
business needs and such ICT does not meet all provisions, the agency
shall ensure that all identified business processes are fully accessible
in accordance with the provisions set forth herein at the time of
deployment of the ICT.”

 

The revised language will read as follows:

 

E108. When procuring ICT, each agency shall procure ICT which complies
with the provisions in this part when such ICT is available in the
commercial market place or when such ICT is developed in response to a
government solicitation. If ICT is commercially available that meets
some, but not all of the provisions, the agency must procure the product
that best meets the provisions of this part, consistent with the
business needs of the agency. If ICT is procured from commercially
available options to meet particular business needs and such ICT does
not meet all provisions, the agency shall ensure that all identified
business processes are fully accessible in accordance with the
provisions set forth herein at the time of deployment of the ICT.

 

If it is the Board’s intention to define an exception for agencies who
must meet business needs for commercially purchased products, then it is
suggested that an explicit exception be defined so that the Board’s
intention can be clarified.


    Ambiguity in “Non-Visual Access”

 

Under the functional criteria for defining a circumstance where the ICT
will be used by persons who are blind, visually impaired, or deaf-blind,
the Access Board considers the criteria as follows:

 

202.2 Without Vision. At least one mode of operation using non-visual
access shall be provided.

 

The phrase”using non-visual access" is ambiguous. This criterion becomes
untestable without a clear definition of what constitutes non-visual
access. Rather than raise questions and perpetuate ambiguity, ACB
suggest using the same format that the AMPRM employs for Color vision,
Hearing, and other provisions. That is "that does not require user
[hearing, perception of color, etc.]


        Suggested Edits and Wording Changes: 

 

202.2 Without Vision. At least one mode of operation that does not
require user vision shall be provided.


    Closed Functionality and Systems

 

In Chapter 3 of the ANPRM, the Access Board defines closed functionality
as follows:

 

302 Closed Functionality

 

302.1 General. ICT that has closed functionality shall conform to 302.

 

Advisory 302.1 General. ICT has closed functionality for many reasons.
These reasons include design or policy. ICT may have closed
functionality in practice even though the manufacturer did not design or
develop ICT to be closed. Computers which are “locked down” to the
extent that end users cannot adjust settings are functionally closed.

 

Information kiosks and most hand held calculators have closed
functionality because their functionality is self-contained. By design,
no provision is made to add peripherals to them. Examples of peripherals
include alternative input and output devices.

 

An example of ICT that has closed functionality is an electronic “book”
that is “locked” by the publisher. The “lock” prevents the content from
being converted into alternate formats.

 

As a result of using Digital Rights Management (DRM) technology,
publishers sometimes prevent visual content from being played in audio
form (or audio content from being displayed in visual form). A best
practice is for publishers not to implement DRM technology which creates
barriers to accessibility. An alternative best practice for publishers
is to provide an alternate format which is compatible with assistive
technology.

 

Electronic content, including “e-books”, holds great promise for people
who have limited cognitive ability, limited or no vision, or limited
manipulation. Electronic copy is much more flexible and adaptable than
hard copy paper, and includes the ability to be read in alternate
formats such as large print or braille.

 

302.2 Without Attachment of Assistive Technology. ICT that has closed
functionality shall be usable by people with disabilities without
requiring assistive technology other than personal headsets for private
listening, to be attached.


        The Problem & Suggestions

 

While an excellent attempt, ACB has several significant concerns with
the language proposed in this provision.

 

      By not listing provisions that do not have to be met by closed
      functionality -- all of the provisions about "programmatically
      determined" are still required—even though they cannot be met
      (since closed functionality means that the system will not work
      with most AT)
          o SUGGESTION: List all the ""programmatically determined""
            provisions as exceptions on closed products.
      The exception to this rule is inherent in the example of a “closed
      e-book” as given in the advisory for this provision. It has, in
      fact, been proven that contents of an e-book with a DRM can be
      programmatically determined by Assistive Technology. The recent
      release of the iBook platform by Apple has definitively shown that
      DRM on an e-book can be designed to permit either assistive
      technology or a closed system to successfully reach the contents.
      A closed system by Amazon.com in its Kindle device also permits
      access to the book’s content. The limitations suggested in the
      advisory are business related and should not affect technical
      solutions. ACB believes that all e-books, regardless of the DRM
      platform used by the system, should be fully accessible without
      resorting to an alternative format—unless the alternative format
      will serve the specific need of the individual user. (This
      advisory highlights a large discrepancy in the Board’s intention
      to keep closed systems from attaching to AT.)
          o SUGGESTION: Remove the “best practice” identified as “An
            alternative best practice for publishers is to provide an
            alternate format which is compatible with assistive technology.”
      As closed products do not need to meet the AT provisions, there is
      a conspicuous absence of provisions that require equivalent access
      to the closed functionality.
          o SUGGESTION: Ad subsections that clarify equivalent
            functionality requirements for closed systems.
      The advisory note states: "locked down” so that settings cannot be
      adjusted. A closed system’s ability to be use with AT poses the
      limitation related to the adjustment of settings and not
      necessarily the fact that settings cannot be adjusted at all. The
      settings can be operable and the product still be closed. An
      example of this might be the ability for a user to increase or
      decrease volume on a kiosk or a self-service machine.
          o SUGGESTION: It is more accurate to state "cannot connect AT"
            or "cannot use with AT" in this context.
      Usable is considered to be different than “all functionality is
      usable." For instance, a phone can be useable by people who are
      blind or visually impaired if all they can do is dial a number and
      cannot see the display or any menus etc.
          o SUGGESTION: Say "all functionality is usable."
      To avoid implying that personal headsets are required to be
      attached for private listening - SUGGEST either dropping the
      private listening part - (it is not needed) or make headphones an
      exception.
          o SUGGESTION: Use the following language: “ICT that has closed
            functionality shall allow all functionality to be usable by
            people with disabilities without requiring installation or
            attachment of assistive technology other than personal
            headsets.”
      Because of the wording "...to be attached," how would this
      provision would apply to future wireless AT (e.g., using
      Bluetooth)? For example, could a closed device require the
      ownership and use of a particular wireless AT for access by some
      individuals because the wireless AT does not strictly need to be
      attached? 
      Public systems -- should public systems that allow AT connection
      pass (and require all of the public to have AT with them)? Or
      should they be considered closed so people can use them as they
      find them?

 

      It is difficult to find provisions specific to closed system that
      provide similar functionality as those described in Chapters 4 and
      5 for software systems and electronic documents.
          o SUGGESTION: consider providing explicit scope or define
            explicit requirements for closed system that ensure full
            access to the system. This will ensure that equivalent
            functionality is provided. (See comments on self-service
            machines.)


    Touch and Tactile Controls

 

With blind or visually impaired people often relying on tactile controls
to manipulate, it is vital that any new technologies incorporate logical
controls. Even when employing controls that utilize touch or
gesture-based systems, efficient alternatives must be available to
ensure that people who are blind, visually impaired, or deaf-blind are
able to independently manipulate the controls.

 

With some minor adjustments, The effort put into the proposed provisions
in 307.5 and 307.6 provide sufficient safeguards to ensure adequate
access. With that in mind, the following language is suggested as an
alternative to provisions in 307.5 and 307.6. The main focus of this
language is to ensure that there is distinction between controls that
can be manipulated via touch and other gestures as well as controls that
can be manipulated via hands. The original language does not provide
sufficient distinction.


        Suggested Edits and Wording Changes: 

 

      In 307.6 - Speech should not be sufficient as an alternative for
      touch controls. 307.6 suggests that "voice control" is one of the
      options a manufacturer can use as the alternative for touch
      controls. However it is not possible for people who are blind to
      use speech in many environments nor is it possible for many
      deaf-blind individuals to use speech as an alternative. 
          o In some cases it would require that individuals broadcast
            private information. 
          o In other cases, individuals cannot speak aloud in such
            environments as libraries.
          o In noisy environments, manipulation via speech would be
            difficult to accomplish.
          o Most environments would be difficult for deaf-blind individuals.

 

      Voice should be removed as an option for ""alternative way to
      operate non-mechanical controls." An advisory note can suggest
      that voice can be a third way of operating touch controls (in
      addition to touch and a non-touch alternative) but not as the sole
      “alternative to touch operation.”

 

       Can Gesture be used as an alternative by all? Some people who
      cannot see also cannot use gestures effectively. If a personal
      device product meets the keyboard access provision, this will not
      be a barrier since individuals needing keyboard controls may
      attach a keyboard to use with the ICT. On public systems,
      however, requiring people who are blind to use gestures would
      limit access for elders and others without good motor abilities.
      For private systems, gesture can be considered an adequate third
      mechanism and may be sufficient as the alternative where a
      keyboard could be connected. But for public systems it cannot be
      sufficient as an alternative.
          o SUGGEST: For this parent provision use the following
            language: "ICT that utilize non-mechanical controls shall
            provide an alternate mode of operation that conforms to
            307.6.1 or 307.6.2, as applicable."

 

       See suggested language to find edits to clarify the concerns
      regarding: "Touch-operated" and "operated by touch.”
      See suggested language to clarify concerns regarding: 307.5
      Touch-Operated Controls. and 307.6 Non-Mechanical Controls.
          o change "307.6 Non-mechanical Controls" to "307.6
            Non-manipulated Controls"
          o replace "non-mechanical controls" with "controls that are
            not designed to be manipulated by hand"
          o Advisory 307.6 also should be changed to "non-mechanical
            controls" to "Non-manipulated controls"
          o change "membrane keyboard" in Advisory 307.6 to "smooth
            membrane keyboard"

 

      Simplify 307.6.1.1. The requirement that controls that meet 307.5
      be provided is sufficient. However using the term "touch operated"
      raises the confusion with "operated by touch”
          o SUGGEST: language that reads “307.6.1.1 Alternate Controls.
            Touch-operated controls that conform to 307.5 shall be
            provided.” be changed to read “307.6.1.1 Alternate Controls.
            Controls that conform to 307.5 shall be provided.”

 

Some revised language for 307.5 and 307.6:

 

307.5 Manipulated Controls. ICT with controls that are designed to be
manipulated by hand, including but not limited to keys, buttons,
switches, and Key pads, shall conform to 307.5.1 through 307.5.3.

 

307.5.1 Tactilely Discernible. Controls shall be tactilely discernible
without activating the controls.

 

307.5.2 Locking or Toggle Controls. When ICT has locking or toggle
controls, the status of all locking or toggle controls shall be visually
discernible and discernible through touch or sound. 

 

Advisory 307.5.2 Locking or Toggle Controls. Locking or toggle controls
are those controls that can only have two or three values and that keep
their value while being used.

 

An example of locking or toggle controls is the “Caps Lock” key found on
most keyboards. Another example is the volume button on a pay telephone
which is set at normal, loud, or extra loud volume. An example of making
the status of a control discernible through sound would be a
"ToggleKeys" feature that provides a different sound when Caps Lock and
Scroll Lock are turned on or off.

 

307.5.3 Key Repeat. When key repeat is supported by a keyboard
interface, the delay before key repeat shall be adjustable to at least
two seconds.

 

307.5.3.1 Adjustability. Key repeat rate shall be adjustable to two
seconds per character.

 

Advisory 307.5.3 Key Repeat. Key repeat is the keyboard feature in which
a typed character is repeated by holding down a single key. Key repeat
can pose a problem for accessibility. If the repeating starts too soon,
or if the repeat happens too quickly, slow typists can end up with lots
of extra characters which are cumbersome to remove. The backspace delete
key often has auto-repeat and this provision is important to ensure its
usability. This provision applies to both physical and on-screen keys.

 

307.6 Non-manipulated controls. ICT that utilize controls that are not
designed to be manipulated by hand shall provide an alternate mode of
operation by touch, voice control or gesture input that conforms to
307.6.1 or 307.6.2, as applicable.

 

Advisory 307.6 Non-manipulated controls. Examples of alternate modes of
operation include touch screens, keyboards, virtual keyboards, and buttons.

 

Examples of controls that are not designed to be manipulated by hand
that are touch operated include touch screens, touch pads, gesture input
devices, and smooth membrane keyboard.

 

Examples of controls that are not designed to be manipulated by hand
that can be operated without physical contact are user interfaces that
operate by voice or in-the-air gestures.


    Scope for Chapters 4 and 5

 

ACB notes that the organization of Chapters 4 and 5 could serve the
purpose of accessibility better if the two chapters were to be combined.


        The Problem

 

The attempt to scope Chapter 5 (Electronic documents) to apply to
software is unsuccessful due to the advisory nature of the scope and
some ambiguity in applying separate chapters to apply to same types of
content.

 

It appears that the ANPRM meant to scope Chapter 5 (Electronic
Documents) to also apply to software. The following sentences can be
found at the end of Advisory 401.1

 

Scope:

 

Additional requirements for non-interactive electronic content are
identified in Chapter5 (Electronic Documents). Those requirements are
applicable to applications or interactive electronic content which
includes non-interactive content.

 

However, because the sentences are in an advisory note they have no
regulatory effect. As a result only part 502 dealing with nontext
content is required

for software. This is an important error to remedy as there are many
provisions in Chapter 5 which are key to software accessibility.


        Suggested Edits and Wording Changes: 

 

While there are multiple ways of remedying this error (including
explicit scoping of Chapters 4 and 5 to combine interactive and static
content accessibility), the best method to ensure that no confusion will
be caused by multiple scopes for similar content is the suggestion that
Chapters 4 and 5 be combined into a single chapter.

 

Combining the two chapters will ensure that someone looking to make
software and static content accessible will be able to turn to a single
source for guidelines and no inadvertent skipping will take place. No
confusing scoping will need to be accomplished. A reorganization will
provide the optimal result.

 

 Proposed Changes to ADAAG Regarding Certain Self-Service Machines    


    Introduction

 

We applaud the Board for recognizing the need for accessibility
regulations in the area of kiosks and other self-service machines as
part of ADAAG. As stated in the Background to the ANPRM:

 

With the proliferation of point of sale machines, kiosks, and other
self-service machines, the Board has decided that in addition to
updating the standards for electronic and information technology and the
guidelines for telecommunications products, it should revise the
Americans with Disabilities Act Accessibility Guidelines to address
access to this new technology to ensure its accessibility for people
with disabilities.

 

We fully agree that there has been a proliferation of self-service
systems installed in a host of public accommodations and state and local
governments in the past five years. Far too many of the services,
products, and information available through these devices are completely
off-limits to people with disabilities because the machines themselves
are inaccessible. Yet the technology for achieving accessibility on
these self-service machines currently exists. That technology is not
hypothetical or experimental, but well-demonstrated, deployed and tested.

 

The trend toward self-service automation in a host of applications is
inescapable. Even a cursory web search shows a wide variety of kiosks
/already in use /throughout all sectors of society, from travel to
dispensing of prescription drugs. (A brief listing appears in <example”
section of these comments below.)

 

In retail, health care, education, food service, transportation, and
core government services, self-service machines abound. Indeed, the
fundamental way in which members of the public interact with both public
accommodations and state and local government is slowly migrating away
from personal interactions to self-service machines. When those devices
are not accessible, the services, benefits, information and products
they offer are unavailable to persons with disabilities.

 

The fundamental non-discrimination provisions of the ADA must be read to
require that self-service devices be accessible so that people with
disabilities are not prevented from receiving the services, information
and products available to everyone else on or from the devices. For
example, if a medical facility allows sighted members of the public to
use a kiosk to check in for their appointments and receive relevant
healthcare information independently, privately, quickly and without the
need to wait in line, that same benefit must be made available to blind
patients. If public accommodations are offering sighted shoppers the
option of purchasing products or receiving discounts through a
self-service kiosks, basic principles of non-discrimination instruct
that the kiosk must also be accessible to blind shoppers to afford them
the same right.

 

In fact, despite the ADA’s strong anti-discrimination mandate, today, in
2010, thousands of inaccessible devices are already installed in the
built environment. Strong Access Board action now is critical to move
the kiosk industry forward, to provide consistency and uniformity to
public and private purchasers of self-service devices and to the public
itself, and to protect the fundamental rights of persons with disabilities.

 

The draft regulation is movement in the right direction, but for the
reasons stated in these comments, the proposed language is insufficient
to meet the challenge of guaranteeing people with disabilities full
participation in an increasingly technological world.


    Examples of Self-Service Machines

 

Each year, more and more services and products are offered by public
accommodations and state and local governments through self-service
kiosks. Almost always, except for Talking ATMs, federal government
postal machines, some fare machines, and isolated other devices, those
kiosks are completely inaccessible to people who are blind or visually
impaired (and often to people with other disabilities).

 

When self-service devices are inaccessible, people with disabilities are
not simply prevented from accessing a machine, but rather are denied the
products, services and information delivered to the public by the
machine. In many situations, people with disabilities are often left
with no choice but to seek the assistance of members of the
public—strangers -- in order to interact with the machines. In the
absence of accessibility, and in addition to being denied products and
services, people with disabilities are frequently forced to waive their
legal rights to privacy and confidentiality, putting confidential
financial, health, and other types of information at risk.

 

The following are examples of self-service kiosks currently available
for public use and is not intended as an exhaustive list. In thinking
about the proposed changes to ADAAG, the following types of kiosks, as
well as others already in use or in development, must be kept in mind.

 

The particular devices listed here demonstrate an undeniable trend
toward self-service. These systems may first appear as novel options,
but we know from experience that those novel options quickly turn into
“business as usual.” The ability to use self-service technology has
become indispensable to full social participation.


      Healthcare

_ _

The use of self-service systems in the field of public and private
health care is growing at a rapid pace. This growth is fueled not only
by cost-saving imperatives driving private industry, but also by federal
government initiatives advancing the use of Health Information
Technology. In the CMS Electronic Health Records (EHR) incentive program
and various pro-IT provisions of the healthcare reform bill, the federal
government has recognized that technology and health care are critical
partners in a drive for confidential health information and more
efficiently delivered health care at lower cost.

 

It is not just back-end systems where the marriage of health care and
technology is visible. In May, 2010, Fujitsu announced it would be
conducting a symposium entitled "Self-Service Healthcare: Migrate Over
50 percent of Patients to Kiosks" http://bit.ly/dre52J According to the
company, the session at a Canadian health conference “will focus on the
benefits of self-service patient check-in kiosks, including improved
service delivery, efficiency and overall patient satisfaction.” More
information on the Fujitsu health care check-in kiosks can be found at
http://www.fujitsu.com/us/services/retailing/selfservice/

 

Fujitsu is not the only company to manufacture health care check-in
kiosks. The Horizon Patient Kiosk by McKesson uses “touchscreen
technology” to provide “an improved patient experience [and] decreased
wait times. http://bit.ly/cuGCER

 

NCR offers the MediKiosk to make the check in and check out processes
“more convenient for patients and to reduce costs and errors for the
organization.” http://bit.ly/aSU46e According to its White Paper
entitled _Putting the Patient in Control: Employing Technology Solutions
to Empower Patients_, NCR believes that self-service kiosks in a medical
setting can do more than simply speed registration time; they can
actually assist in providing health care:

 

“self?service kiosks provide an additional channel for insurers to
support healthy practices and preventative care by recommending specific
tests or procedures to patients with chronic disease management at the
point of service. For example, at check?in, patients with diabetes may
receive a message from health insurers or health plans encouraging them
to discuss the importance of testing for hemoglobin A1c with their
physician,”

 

http://www.ncr.com/documents/putting_the_patient_in_control.pdf

 

Another example of how health care has gone high tech—and self-service,
is a product known as the “The InstyMed kiosk.” This self-service
machine is a “fully automated prescription dispensing system” that is
100% touchscreen and 100% inaccessible. See http://www.instymeds.com/, a
site that includes a 3 minute video of the self-service kiosk.

 

The company, whose motto is “we make patients better quicker,” describes
its product as follows:

 

The safety and security of an ATM with the simplicity of a soda machine!
InstyMeds is the solution for providing outpatient prescription
medication services on-site 24 hours a day, 7 days a week.

 

The InstyMeds Prescription Medication Dispenser is the health care
industry's first fully-automated, ATM-style dispenser of acute
prescription medications. State-of-the-art InstyMeds technology ensures
safe and secure medication dispensing directly to patients at the
point-of-care.

 

This kiosk, and similar self-service devices sure to follow, will
provide customers in drug stores, hospitals, and other locations with
access to prescriptions 24 hours a day including times when a
traditional pharmacy is closed. People with disabilities who cannot
access the device will lack access not just to a machine, but to needed
medication.

 

It is not just large institutions using these self-service check-in
machines. In March of this year the Sebasticook Valley Hospital issued a
press release announcing its use of self-service kiosks allowing
patients to verify identity, provide insurance information and provide
other functionality. See
http://www.seepoint.com/company-press-release-article.asp?PressReleaseID=77.


      Education

 

Colleges and Universities across the country are using self-service
touchscreen kiosks “for automated registration, financial aid
information, course catalogs, directories, way finding, academic &
athletic event calendars, student ID validation, and more.” See
http://www.kiosk.com/market/government-kiosk-experience.php.

 

High Schools are also turning to self-service machines to provide
information to, and gather information from students. Ector County Texas
issued a press release in February, 2010 announcing its purchase of 25
devices to “disseminate and collect a wide range of educational content
– including administrative announcements, interactive graphics,
sign-ins, and informational video to students, teachers, and parents.” A
requirement for the chosen kiosks was the “need to be able to stand
alone - exposed and unattended.” If these devices are not accessible,
students, teachers and parents with disabilities are simply excluded
from important school services. See press release at
http://www.seepoint.com/company-press-release-article.asp?PressReleaseID=85


      Retail

_ _

Kiosks abound in the retail setting. A recent New York Times article,
for example, focused on kiosks that print money-saving coupons on site
at national retailers. (See http://bit.ly/9jPATB and
http://www.nytimes.com/2010/05/31/business/31loyalty.html.

 

Kohl’s department stores recently announced a roll-out of self-service
in-store kiosks across the chain that will provide free shipping on
products ordered on-line in stores. http://bit.ly/akc8sc. This type of
self-service devices increases the number of products available to their
customers -- but not if for customers with disabilities if the machines
are not accessible.

 

ZoomSystems offers kiosks that function as full stores, taking payments
and dispensing products without human staff. ZoomShops, for example, are

 

“automated, self-service stores that combine the convenience of online
shopping with the immediacy of traditional retail. Powered by
easy-to-use touchscreen technology, ZoomShops are part of a
state-of-the-art network of automated retail stores that are found in
over 1,000 airports, malls, and retail stores across the U.S. and
internationally—and growing.”

 

Their touchscreen technology, however, is not “easy-to-use” by people
who cannot see a touchscreen. It is, instead, completely inaccessible.
(More information about ZoomShops available at:
http://www.zoomsystems.com/zoomshops/zs_index.html)


      Transportation

 

Airline kiosks, which allow passengers to check-in, get boarding passes,
select seats and perform other functions quickly, privately and
independently, have been proliferating since first introduced in the
United States ten years ago. See http://bit.ly/9gdxjA, a 2000 article
about the “new technology”. Unfortunately, despite clear
non-discrimination mandates, these devices are largely inaccessible,
even though industry itself has recognized the need for access. (See IBM
whitepaper, “The Need for Accessible Self-Service Travel Kiosks, at
http://www-03.ibm.com/able/news/selfservkiosk.html. Information about
IBM’s accessible self-service travel kiosks is available at
http://www-01.ibm.com/software/ucd/gallery/kiosks_research.html. These
terminals that started out as a convenience on the side have rapidly
become the main, and sometimes the only approach for checking in. The
lack of accessibility on airline kiosks leaves visually impaired
passengers at a significant disadvantage.


      State and Local Government

 

Examples of self-service devices used by state and local governments to
provide services and information to the public can be found at
http://www.kiosk.com/market/government-kiosk-experience.php.

 

It is critical that Board action on this important issue be flexible
enough to cover all types of self-service machines. Given the realities
of the regulatory process, the Board’s action now must ensure access not
just the types of kiosks described here, but other units in the
development stage and not yet generally available to the public.


    Proposed Draft Language

 

The Board proposes the following addition to ADAAG:

 

220.2 Self-Service Machines. Where self-service machines, other than
automatic teller machines and fare machines covered by 220.1, meet the
definition of information and communication technology in 36 CFR Part
1194 and they are used for ticketing, check-in or check-out, seat
selection, boarding passes, or ordering food in restaurants and
cafeterias, at least one of each type provided at each location shall
comply with the provisions in 36 CFR Part 1194, Chapters 3-9.


      Strengths of the Proposed Draft Language

 

The proposed ADAAG change included in the ANPRM will successfully work
to provide access to many self-service kiosks currently available to the
public in places of public accommodation and state and local
governments. Any changes as a result of the comment and drafting purpose
must in no way result in a weakening of the language in the ANPRM.

 

Airline check-in kiosks, for example, provide an important service and
benefit to the public, yet most airline kiosks in the United States are
completely inaccessible to persons with visual impairments. This is
particularly troubling because accessible kiosks are currently being
manufactured and are available for purchase.
http://www-01.ibm.com/software/ucd/gallery/kiosks_research.html. The
Board’s proposed language is an important and necessary step that will
help rectify this inequality.

 

Similarly, as more industries—including healthcare –move to electronic
check-in for a wide range of services, the Board’s proposed rule will
provide an important mandate to ensure that those check-in kiosks are
accessible to persons with disabilities.

 

The check-out provisions, as noted by the Board in its introduction,
will apply to various devices, including the point of sale payment
devices that have been the subject of Structured Negotiations, an
alternative dispute process that has been used by the blind community
and industry to collaborate on accessible technology and information
issues.
(http://lflegal.com/category/settlements/point-of-sale-settlements/ )
The reference to “check-out” is an important step forward in ensuring
that people with disabilities are able to independently and
confidentially purchase and pay for products, and receive related
check-out information.


      Problems with the Proposed Language and Suggested Changes

 

The Board’s draft language, despite many positive aspects, is not
flexible enough to cover the host of self-service kiosks currently
installed today, to say nothing of the self-service devices on the
drawing board. The proposed language is too limited in several ways.

 

First, it offers coverage only to devices that “meet the definition of
information and communication technology.” Whether or not the
self-service kiosks providing products, services and information in a
covered entity is ICT, it should be covered by the accessibility
standards if it uses an ICT-based user interface. The person with a
disability will need access to all such devices, many of which use the
same underlying technology platforms.

 

Second, the Board’s draft language further limits this category of
devices by spelling out particular /types/ of self-service kiosks that
are “information and communication technology” to which the
accessibility standards of Section 508 will apply. Given the
proliferation of devices in all sectors, the limitations in the Board’s
draft do not make sense.

 

A further problem with the Board’s decision to limit coverage to certain
identified devices is that the proposed language does not necessarily
mandate full functionality of even those types of self-service devices
specifically listed. For example, if a self-service kiosk in a medical
setting that is used to check-in patients also delivers health care
information, the proposed regulation may be erroneously read to allow
that additional functionality to remain inaccessible to persons with
disabilities. Similarly, in the grocery self-check situation, the
Board’s draft language could be misread as not covering the entire
process, but only applying to the final step of the process when the
customer pays for the groceries.

 

The current language requires that a device be used for specific
purposes before it can be covered by accessibility requirements. In an
environment of rapid change, old terminology is frequently not applied
to new devices that provide a slightly different combination of
features. This, combined with a tendency to interpret regulations as
only applying to exactly the items listed - can result in the proposed
language not applying to as broad a group of products, including next
generation products, where it should, or even to the products that
replace the ones that are currently listed.

 

Particular applications should be listed as examples, rather than as a
limited set of functions to be covered. This would ensure accessibility
to the full range of self-service kiosks currently available to the
public as well as those that will be introduced in the future. Examples,
including but not limited to the ones in the current draft, should be
listed in the form of an advisory as in other parts of the ANPRM.
Moreover, the regulations should clearly specify that the examples are
only that. The final language should specifically state that it is not
the intent of the provision to be limited to the listed examples but to
apply to self-service public terminals in the different forms they take
and will evolve into over time.

 

The Board must also carefully consider the accessibility standards being
applied. To the extent that the proposed change to ADAAG will
incorporate proposed new 508 standards, it is critical that those new
standards provide the guidance and rules necessary to ensure the
accessibility of this class of devices. Problems with the 508 standards
referenced in the proposed ADAAG change are addressed in comments being
filed by the disability community and others. Certain specific comments
can also be found in other parts of this document. Incorporating weak or
inconsistent standards, especially around closed and public systems,
will undermine the Board’s goal of ensuring ADAAG coverage of
self-service systems.

 

Moreover, a general standard of “independent usability” for _all_
self-service devices that provide products, services or information in
covered entities, in addition to adoption of the specific accessibility
standards, would also provide coverage more appropriate to today’s
self-service market. (As the Board knows, the more general “independent
usability” standard was the applicable Talking ATM provision until the
Board adopted Section 707 in 2004, and is still the only Talking ATM
regulation applicable under the ADA because the Department of Justice
has not yet adopted Section 707.)

 

In drafting any regulation that applies to technology it is important to
remember that the product development cycle and implementation time line
are much quicker than the regulatory cycle. As industry makes business
decisions to develop and employ technology to provide products,
information and services to the public, it is imperative that
accessibility be an integral component of what the public experiences.

 

As currently drafted, the proposed language, with its multi-layer
limitations, is an important step forward, but simply does not go far
enough. It certainly will not reach even every self-service kiosk
currently in use in public settings. The Board has proposed regulatory
language that simply cannot keep pace with the explosion of devices
anticipated for tomorrow.


    Comments on Proposed Exceptions


      Exception for Drive-Up Devices

_ _

 Exception:  The Board proposes that “Self-service machines which are
located at drive-up only locations shall not be required to comply with
section 702 in 36 CFR Part 1194.”

 

 Comment:  The proposed rule does not require that covered self-service
machines located at drive-up locations to comply with section 704 of the
508 regulations (reach range), but otherwise makes no special exception
for machines in drive-up locations. It is important that this exception
not be expanded as comments are reviewed and considered. Drive-up
locations are often the only location of a self-service device. Those
devices may be used by people with disabilities who walk up to the
machine, or by people with disabilities who are passengers in cars
driven by others (or by themselves if the disability does not prevent
driving). A person with a visual impairment, for example, may need to
use a device in a drive-up location while riding in a taxi. That person
must be able to independently use the self-service kiosk without having
to disclose confidential information to the taxi driver and trust that
the driver (whom they can’t identify) will not improperly use that
information.


      Exception for certain sections of the 508 regulations

 

 Exception:  The Board proposes: Exceptions: 1. Self-service machines
shall not be required to comply with the following sections in 36 CFR
Part 1194: 302; 409-412; 503.1-503.3; 506; 508; 703; 802.2.3; and 802.2.4.

 

In its’ explanation of this exception, the Board states that “[t]hese
provisions generally address requirements for products to interoperate
with assistive technology and therefore are not appropriate for
self-service machines.”

 

 Response:  Section 302.1 of 36 CFR Part 1194 provides that “ICT that
has closed functionality shall conform to 302.” This is not a provision
that addresses interoperability. Indeed, the Board’s Advisory to Section
220.1 mentions “information kiosks” as an example of ICT with closed
functionality. Information Kiosks fall squarely within the Board’s
proposed language, and accessibility to such devices is critical. For
this reason, the Board should /not/   provide an exception for section 302.

 

Moreover, as other comments note, the “closed functionality” provisions
of this ANPRM are problematic. In particular, considering self-service
machines as potential “closed” systems will enable the Board to seek
equivalent accessibility for other closed systems. Further, limiting the
applicability of ADAAG changes to nonfunctional portions of Section 508
and 255 chapters further limits the accessibility of kiosks. The
reasoning for not applying provisions of Chapters 2 and 10 to
self-service machines is unclear. With limitations being placed on the
applicability of 302 and Chapter 2 not applying to self-service
machines, the regulation as drafted does not provide a sufficient level
of accessibility to all the devices that need it.


    Answers to Specific Board Questions


      Question 30: Experiences With Designing Self-Service Machines and
      User Experiences

   

  Question 30 : The Board seeks comment from users and manufacturers of
self-service machines on their experiences in using or designing
accessible machines and the benefits and costs associated with the
proposed requirements.


            Response: The most wide-spread self-service machine that is
            accessible today is the Talking ATM. Although Talking ATMs
            are already covered in the 2004 ADAAG and not subject to the
            draft language currently under consideration, their
            wide-spread acceptance by the blind community provides an
            important answer to Question 30.

 

Talking ATMs afford blind customers the same independent access to their
money that sighted customers have, 24 hours per day, 7 days per week.
Users of Talking ATMs consistently praise the devices and emphasize the
importance of being able to interact privately, independently and
consistently with such devices. Comments from blind Talking ATM users
collected in 2009 on the 10^th anniversary of the first United States
Talking ATM included the following:

 

“I also use talking ATM's at a [bank] and a couple of [banks] in
California. It's really cool to not have to find someone to help make a
transaction.”

 

     

 

“it felt truly empowering to use a talking ATM in my own neighborhood
for the first time. The only time I'd ever used a talking ATM was at ACB
national conventions. Now, I could independently use "my" talking ATM
any time I chose to do so. People would sometimes ask me why I was
plugging an earphone into the ATM machine and I would tell them about
how we worked with the bank to make the ATMs accessible for blind
persons. Now, I just take it for granted that I can use my local ATM
independently.”

 

     

 

“I remember well the times that I went to [the Talking ATM] near my
office and got my own cash out without having to ask for help. I was so
excited that I could hear and follow the instructions.”

 

     

 

The need for similar independent, private access to other types of
kiosks on the market today, particularly those in which financial and
health care transactions are conducted and financial and health care
information is provided cannot be overemphasized. Accessible
self-service devices of all kinds need a place in ADAAG, as this type of
accessibility fits squarely within the purpose of the ADA.

 

Another type of accessible self-service device is the Automated Postal
Centers (APC) installed in virtually all United States Post Offices.
These devices, using the EZ Access interface developed by the Trace
Research and Development Center at the University of Wisconsin, provide
spoken instruction for all functionality on the APCs. The presence of
these devices across the country demonstrate the ability to make
self-service kiosks accessible. They allow people with disabilities
access to vital postal services and products whenever post office
lobbies are open – which is frequently during times when post office
staff is unavailable.

 

Altogether, Talking ATMs and the accessible post office kiosks have
resulted in tens of thousands of accessible self-service machines
currently installed across the country that provide meaningful,
independent, confidential and equal access to persons with disabilities.
This should be the norm. Access Board regulation on this issue will
provide the spur to make independent access a reality for people with
disabilities.


      Question 33: Impact on Small Entities

 

 Question 33 : The Board is interested in comment on the impact on small
entities (places of public accommodations and state and local government
entities) of the provisions for self-service machines under the
Americans with Disabilities Act. How many and what types of small
entities utilize self-service machines, and what types of machines do
they use? How many small manufacturers make these types of machines? How
many of the small entities that use or manufacture self-service machines
have machines that are accessible? How much will it cost to develop and
produce the technology that would meet the proposed provisions? Should
the Board establish different compliance requirements for small entities
to have accessible machines? Does the Board need to clarify or simplify
the requirements for small entities or exempt certain types of machines
from these requirements?


            Response: Because the Americans with Disabilities Act
            already provides appropriate defenses for public
            accommodations and state and local governments, the Board
            should not establish different compliance requirements for
            small entities, should not simplify requirements for such
            entities and should not exempt certain types of machines
            from accessibility requirements because of their placement
            in “small entities.” Uniformity and consistency are
            important components of accessibility, and independent
            access to the products and services offered on or from
            self-service kiosks is necessary regardless of where those
            machines are placed.

 

An important piece of Talking ATM history provides useful information to
the Board in connection with Question 33. In October 2004, the
manufacturer of the lowest cost ATMs available in the United States
issued a press release stating that "beginning this week, the Triton
9100 Monochrome ATM is equipped with audio-guided transaction support.
Now all Triton models for the U.S. market include audio capability as a
standard feature at no additional cost." The full press release is
available as part of 2005 comments submitted by the American Foundation
for the Blind in response to Question 7 of the Board's ANPRM regarding
certain types of free standing equipment, on line at http://bit.ly/cgSUWo.

 

In the traditional built environment, the Board would not adopt one
standard that applied to buildings selling shoes, and a different
standard – or no standard -- to a building selling coats. Twenty years
after passage of the Americans with Disabilities Act, the importance of,
and need for, robust, uniform, and consistent accessibility standards
for people with disabilities in that traditional built environment goes
without saying.

 

We urge the Board to adopt language in the area of self-service kiosks
that will ensure that people with disabilities have real access to the
_new_ built environment – the environment where one machine dispenses
prescriptions, another boarding passes, and yet another allows a student
to select college classes. The Board needs to take firm action today so
that robust, uniform and consistent access to those machines also goes
without saying.

 

 Responses to Remaining Questions   


    Question 1: Organization By Product Features

 

Question 1: The Board developed the draft using the organizational
approach recommended by the Committee in which the provisions are
organized primarily by the features or capabilities of a product,
instead of discrete product types. The Board seeks comments on the
usability and effectiveness of this approach, as well as alternative
organizational approaches.

   

 Response:  Overall, the organizational approach taken by the Access
Board works well. However, while considering elements of the ANPRM, some
specific areas have been highlighted that need significant restructuring
or reconsideration.

 

The largest area for concern is the organization of Chapters 4 and 5.
Due to the nature of ICT covered by both chapters, it is vital that a
reorganization be strongly considered. In particular, the lack of a
unified approach in covering technologies detracts from the overall
mission of providing accessibility for the covered ICT. When the covered
ICT is significantly impacted by both chapters, the separation of the
two may mean that manufacturer, designer, or a developer seeking
information will limit her inquiry to only one of the chapters, not
understanding the scope as intended by the Board.


    Question 2: Implementation Timeframes

 

 Question 2 : The Board seeks input on what implementation time frames
would be reasonable, specifically whether some provisions should have
differing implementation dates.


            Response: The rapid innovation in technology suggests that
            the time that will be required for the Board to finalize the
            consolidated standards should be more than sufficient to
            allow manufacturers and developers to integrate processes
            that will enable them to produce products that conform to
            final standards. A typical 12 to 18 month product cycle will
            find sufficient time between now and the final rules to
            modify internal processes.

 

In fact, it would be detrimental to the industry and the end user if the
Board chose to delay certain categories of products, not only delaying
access to an increasing array of products and services but causing
competitive damage. Especially looking at the fact that the Board has
chosen to organize the proposed standards based on functional
requirements as opposed to specific set of products, the separation of
product categories would prove to be difficult. Therefore, ACB urges the
Access Board to not delay the implementation of the new rules as
proposed and not treat categories of products differently.


    Question 4: Overall Organization

 

 Question 4 : The Board seeks feedback on the overall organization of
the draft, especially how aspects of technology are addressed by the
chapter organization. For example, should software (Chapter 4) and
electronic documents (Chapter 5) be combined? Or, should all
requirements for audio output, including conversation functionality and
status indicator sounds (Chapter 8), be combined with text messaging
capability (Chapter 9) into one chapter?


            Response: See response to Question 1. It is strongly urged
            that Chapters 4 and 5 be combined. Additional suggestion for
            organization and the impact are given in specific sections
            above.


    Question 5: Electronic Content Access for “Official Communications”

 

The draft contains a new provision which the Board is considering to
address access to electronic content of certain official communications
by Federal agencies or agency representatives. This draft requirement
would apply to electronic content regardless of the method of
transmission or storage but is limited to official agency
communications. "Official communication" refers specifically to
communication by a Federal agency to employees that contains information
necessary for those employees to perform their job functions and
information relevant to enjoyment of the benefits and privileges of
employment or to communication by a Federal agency to members of the
general public that contains information necessary for the conduct of
official business with the agency. Examples of such electronic content
may include email messages, Word documents, and other types and formats.
The current standards address access to some types of electronic
content, such as web pages, forms, and video productions. A definition
of "content," is included in section E111.

 

 Question 5 : The draft requirement which the Board is considering for
access to electronic content in the draft is limited to certain official
communications by Federal agencies. Other types of communications and
electronic content are not addressed. The Board seeks comment on this
draft requirement and what other types of content including social media
(i.e., YouTube and Twitter) should be addressed and the benefits and
costs of extending coverage to other forms of electronic content. The
Board is interested in comments from agencies about how this provision
could be implemented across large and diverse institutions. How should
attachments to official email messages be handled? The Board is also
interested in information on the benefits and costs associated with this
change, particularly from Federal agencies. How should this provision
apply to records requested from the National Archives and Records
Administration who is prohibited from altering archival records?


            Response: Persons who are blind, visually impaired, or
            deaf-blind require /all/ information to be delivered in an
            accessible format no matter what capacity the individual
            holds who delivers the information. To suggest that a
            government agency will only deliver information in an
            accessible format if it is done so in the official capacity
            is to tell visually impaired people around the
            nation—whether employees or general public—that information
            access is a low priority for the Federal government. The
            current definition of “official” fails to take into account
            myriad scenario’s in the work place that require individuals
            to communicate electronically.

 

Similarly, the current definition of official also fails to take into
account the increasing array of communication choices available to
government agencies—options which are used more and more frequently.
These options like YouTube, Facebook, Twitter, and other social
networking possibilities provide government agencies the opportunity to
communicate with employees and the general population in a creative
manner. The “gov 2.0” movement stands at the verge of ensuring that the
U.S. government is more responsive to the needs of American public.
Excluding anything but “official” communication severely limits the
communication possibilities available to blind or visually impaired
people. The Board should think carefully about the reasons for seeking
“official” communications to be the only way for accessibility to be
delivered. ACB is deeply concerned about the possibility of opening up
circumstances in which people with disabilities will not have adequate
information. Government agencies, no matter when they communicate,
should strive to make access a large priority—whether such communication
is done in the “official” capacity.

 

When choosing to use “official communication” as a limiting scope, the
Board has set up ambiguities and exceptions without stating such
exceptions. If the Board is concerned about specific scenarios, explicit
exceptions should be defined such that no ambiguities would deter
accessible communication. These exceptions will help define the Board’s
thinking.


    Question 6: Removing Exceptions

 

·        One exception stated that assistive technology need not be
provided at all workstations for all Federal employees (1194.3(c)). The
current standards require that ICT either be directly accessible or
compatible with assistive technology. Since the standards do not require
the provision of assistive technology at each work station, the Board
considers this exception unnecessary.

·        The second exception states that where agencies provide
information and data to the public through accessible ICT, the
accessible ICT need only be provided at the intended public location
(1194.3(d)). The Board is considering removing this exception from the
standards because no provision in the standards requires accessible ICT
in more than one location. Since these exceptions are contained in the
statute, their removal from the standards will not impact application.

·        A third exception states that products located in spaces used
only by service personnel for maintenance and repair need not be
accessible. The Board believes this provision is unnecessary since most
functions can be accessed remotely.

 

 Question 6 : The Board seeks comment on removing these exceptions and
the impact of removing them, including the benefits and costs associated
with removing them. Should the exception concerning ICT acquired by a
contractor incidental to a contract be repeated in this section and in
section E103.4.2?


            Response: ACB fully agrees with the Board in its reasoning
            for removing the first two exceptions from the current
            draft. Furthermore, ACB also agrees with the Board that the
            third exception should also be removed. The reasoning that
            the board uses is quite correct; however, it does not go far
            enough. Not only can ICT that is used for maintenance and
            services be controlled remotely for most functions, but it
            should be pointed out that maintaining this exception
            effectively precludes blind or visually impaired people from
            being employed in areas where maintenance and services are
            considered to be job functions for employees. The removal of
            the exception will also mean that blind or visually impaired
            employees will now be able to work in areas where accessible
            service and maintenance equipment is housed. We urge the
            Board to add the reasoning related to job functions for the
            public record and further urge that the exception not be
            replaced during revision of Section 255, Section 508, and
            ADAAG rules.


    Question 7: WCAG Harmonization

 

The [TEITAC] Committee recommended that the Board seek to harmonize the
standards with the World Wide Web Consortium (W3C) Web Content
Accessibility Guidelines 2.0 once they were finalized. The Web Content
Accessibility Guidelines (WCAG) 2.0 was published as a W3C
recommendation on December 11, 2008; about 8 months after the Committee
provided its report to the Board. The Board is considering that web
pages, as defined by WCAG 2.0, which are Level AA conformant, be deemed
to be in conformance with the provisions noted in the draft.

 

 Question 7 : The Board seeks comment on this approach to harmonization
with WCAG 2.0 including suggestions for alternative approaches to
achieving harmonization, and comments on the benefits and costs
associated with the Board's approach.


            Response: As stated in its earlier commentary, ACB is quite
            pleased with the Board’s approach to harmonize the work done
            at the World Wide Web consortium in order to synchronize the
            two standards. ACB believes that the harmonization will not
            only result in reduced costs for government agencies,
            contractors, manufacturers, and developers, but it will lead
            to more accessible products and services. In the past,
            multiple standards led to confusion and additional costs.
            Moreover, synchronizing with a recognized worldwide standard
            will allow entities to leverage training and other resources
            from multiple sources. Finally, considering the functional
            approach taken by the World Wide Web consortium while
            developing WCAG 2.0, the synchronized standards fit well
            into the approach that the Board has taken in emphasizing
            functional accessibility, maintaining—at the same time—the
            high quality of product requirements.


    Question 16: Coverage of Closed Functionality

 

The Board is considering this draft provision to require that ICT with
closed functionality be usable by people with disabilities without
requiring assistive technology other than personal headsets. The current
standards address this only in relation to self-contained closed
products. The Committee recommended this change since closed
functionality is not product or function specific and may be found in
many contexts, due to either design or policy considerations. For
example, self-contained closed products such as kiosks may be closed due
to design, while software applications may have certain limitations
imposed on functionality due to policy considerations, such as
maintaining security.

 

 Question 16 : The Board is interested in comments on how closed
functionality is covered in the draft. Should other means of assistive
technology besides personal headsets be permitted to provide access to
ICT with closed functionality?

 

 Response:  Earlier commentary specific to 302 and other “closed
functionality” provisions provides ACB’s response to this question in
detail. We will note here that ACB has significant concerns about how
“closed functionality” is defined and implemented. Taking from the
example given above by the Board regarding kiosks which could be
considered “closed,” it is important to point out that the ADAAG
amendment specifically exempts self-service machines from being covered
by 302, effectively limiting the technical alterations that can be made
to such systems. It is also important to note that, assistive technology
connections being prohibited due to the closed nature of the covered
systems, the Board fails to define equivalent accessibility provisions
in 302 which could result in full access to any closed system.

 

The closed system example of an e-book with DRM cited by the Board in
302 (and discussed in the relevant section above) can typify
circumstances where either a virtual or a physical connection to
assistive technology is not only feasible but desirable. The definition
of a “closed system” provided by the Board and explained through
advisories will be important in understanding the type of connection
required, the level of interaction necessary to fully engage with the
content, and the inherent limitations in such a closed system. While
current techniques may limit assistive technology interaction, future
techniques may be perfectly capable of allowing AT connections, enabling
the level of interactivity hitherto fore unimagined. It is vital,
therefore, to ensure that AT connectivity to “closed systems” is not
altogether precluded.


    Question 17: Unnecessary Provisions?

 

 Question 17 : The draft includes three provisions (406.2, 406.3, and
406.4) not included in the Committee report but that are consistent with
WCAG 2.0. Are these provisions important enough for end-users to be
included for the sake of harmonization with other standards? The Board
seeks comment on the benefits and costs of these additions.

 

 Response:  For the sake of synchronization with existing standards, ACB
recommends that 406.2, 406.3, and 406.4 be retained in the final rules.
This will avoid unnecessary confusion when comparing WCAG and Section
508/255 standards. It can be argued that removing these provisions may
be more costly.


    Question 18: Assistive Technology Function

 

The Board is considering a new requirement that closely reflects
recommendations the Committee considered but did not agree on. The Board
added this provision because it believes it is important to address how
applications use platform accessibility services to make information
about components programmatically determinable.

 

 Question 18 : The draft includes a requirement for ICT which provides
an assistive technology function. Should the requirements apply to
assistive technology? The Board seeks comment on the benefits and costs
on including explicit requirements for assistive technology.

 

412 Assistive Technology Function

 

412.1 General. Applications providing an alternate user interface that
functions as assistive technology shall use, at a minimum, platform
accessibility services to make information about components, interactive
elements, and other objects programmatically determinable.

 


            Response: ACB commends the Board’s thoughtfulness in
            requiring that ICT applications make its interface
            programmatically available by using one of the platform API
            which will enable assistive technology to query information
            about the ICT in question. Platform API serves as the means
            by which ICT can expose and AT can query variety of
            information about the ICT and the platform such as the state
            of the application, role of a control, description of a
            control, etc. Prominent desktop platform API include
            Microsoft’s Universal Information Accessibility (UIA),
            Assistive Technology Software Platform Interface (ATSPI),
            IAccessible 2, etc. Similar API exist for mobile platforms
            such as Apple’s iOS.

 

      There are three core challenges with the Board’s approach to
      ensure that platform accessibility API be used by applications.
      The first is the language used by the board in 412.1. The Phrase
      “Applications providing an alternate user interface that functions
      as assistive technology” is misleading. Does the Access Board
      intend that that this requirement be only for assistive technology
      software such as screen readers? Or is the meaning of this
      provision simply that all applications required to be accessible
      must expose its information via platform API? Or is it that this
      provision only applies to those applications which will
      independently provide AT functionality—e.g., self-voicing browsers?
          o SUGGESTION” change the phrase “Applications providing an
            alternate user interface that functions as assistive
            technology” to “applications needing to expose an alternate
            interface to assistive technology.…”

 

      Secondly, the lack of any additional advisories or technical
      assistance information provides another source of confusion. The
      phraseology seen above can be easily resolved if the Board added
      Advisory 412.2 with examples of platform accessibility API.

 

      Third—and the most vital concern perhaps—is the fact that 412
      fails to address the lack of platform accessibility API on some
      prominent platforms. The mobile platforms, Simbian and Palm Web
      OS, are examples of such a lack. Nor does the Board consider
      emerging operating systems such as Windows Phone Series 7, a
      platform expected to power millions of mobile devices by using the
      soon-to-be released product by Microsoft.
          o SUGGESTION: A requirement that /all/ manufacturers of
            platforms add a core platform accessibility API when
            developing a new platform or when updating the platform
            after the release of updated Board rules will resolve these
            significant concerns.

 

Respectifully submitted,

Eric Bridges

Director of Advocacy and Governmental Affairs

American Council of the Blind

2200 Wilson Boulevard, Suite 650

Arlington, VA 22201

202-467-5081

ebridges@acb.org <mailto:ebridges@acb.org>