Accessibility Barriers Keeping Disabled From Participating in Federal Rulemakings: Brief

Disability law “must be considered” when determining whether standards incorporated by reference into federal regulations are reasonably available as the Administrative Procedure Act requires, said the American Foundation for the Blind and Prime Access Consulting, which promotes accessible websites and web content, in an amicus brief Wednesday (docket 23-1311) at the U.S. Court of Appeals for the D.C. Circuit.

The brief was in support of the petition for review in which iFixit, Public Resource and Make Community allege that the FCC violated the APA when it amended rules incorporating four new equipment testing standards, and did so without the proper notice and comment protocol (see 2403280002).

The FCC issued an NPRM about the four new standards but didn’t publish them in the Federal Register. Incorporating those standards by reference, the agency told the public that copies of the standards were physically available for viewing at its D.C. headquarters. It further stated that copies of them could be purchased from the private standards development organizations (SDOs) that originally published them, or that they were available in a read-only format in SDO-maintained online “reading rooms.”

But those options fail to satisfy the APA’s reasonable availability requirement, as the petitioners told the D.C. Circuit in their March 27 opening brief, said Wednesday’s amicus brief. Those failures “apply with special force to Americans who are blind or have low vision,” in view of the challenges that such people face in visiting Washington to inspect documents at the FCC’s headquarters, it said.

It also applies to purchases by such persons of their own electronic copies of standards “being considered for incorporation by reference to participate in federal rulemakings,” said the amicus brief. The online store maintained by the American National Standards Institute, from which the four standards at issue in this case can be purchased, isn’t accessible to Americans with a range of disabilities, including blindness and low vision, “due to its failure to comply with numerous web design accessibility guidelines,” it said. ANSI didn’t comment Thursday.

The petitioners are also correct that the electronic reading rooms to which the FCC and other agencies direct interested parties also “fail to satisfy the APA’s reasonable availability requirement,” said the amicus brief. That’s due to “the limited functionality and onerous terms of use of such websites,” it said.

Significant as the barriers are that ordinary Americans face in trying to access standards from the electronic reading rooms, “they pale in comparison to those faced by the more than eight million Americans who are blind or have serious difficulty seeing, even when wearing glasses,” said the amicus brief. These difficulties are “so grave” that many Americans with disabilities, including people who are blind or have low vision, “are effectively barred from accessing standards on many such websites,” it said.

Neither the FCC nor any other federal agency “can rely on such websites in their current form to claim that materials under consideration for incorporation by reference meet the APA’s requirement of reasonable availability,” said the amicus brief. ANSI “has made no meaningful changes to improve the accessibility of its website,” it said. There also are “significant accessibility problems” with reading rooms maintained by 10 other SDOs, it said.

The nearly one in 40 Americans with a vision-related disability is “being denied any meaningful opportunity to participate in federal rulemakings, and to know what the law is, when such materials are incorporated by reference into proposed or final rules,” said the amicus brief. As a share of the American population, “this would be akin to excluding everyone who lives in Virginia from meaningfully participating in rulemakings or from accessing the law when incorporated by reference materials are in play,” it said.