The Texas Department of Information Resources (department) proposes amendments to 1 TAC Chapter 213, §§213.1, 213.10 - 213.17, and 213.30 - 213.37; and new §§213.18 - 213.21 and §§213.38 - 213.41, concerning Electronic and Information Resources. The proposed changes include the addition of new definitions and the modification of some existing definitions in §213.1; a requirement in §213.21 and §213.41, respectively, that each agency and institution of higher education must develop and publish an accessibility policy by June 30, 2009. The rules require that the accessibility policy include a plan for non-compliance remediation, the department to develop and publish a procedure to manage non-compliance, and agencies and institutions of higher education to appoint an accessibility coordinator. The proposed changes include a clarification at the beginning of 1 TAC §§213.10 - 213.16 and 1 TAC §§213.30 - 213.36 stating that unless an exception is approved by the agency's executive director or an exemption has been made for specific technologies under §213.17 or §213.37 of this chapter, effective September 1, 2006, all electronic and information resources developed, procured or changed by the state agency or institution of higher education must comply with the requirements of these rules. The proposed changes also include new §213.19 and §213.39 concerning accessibility training and technical assistance; and new §213.20 and §213.40, concerning accessibility surveys and reporting requirements. The proposed changes implement requirements of Texas Government Code, Chapter 2054, Subchapter M, Access to Electronic and Information Resources by Individuals With Disabilities.

The department proposes to change the title of Subchapter B from "Electronic and Information Resources for State Agencies" to "Accessibility Standards for State Agencies" and Subchapter C from "Electronic and Information Resources for Institution of Higher Education" to "Accessibility Standards for Institutions of Higher Education" to clarify that the rules are the accessibility standards for electronic and information resources. The changes to the proposed rules apply to both state agencies and institutions of higher education.

1 TAC §213.1, Applicable Terms and Technologies for Electronic and Information Resources

In §213.1 the department proposes to add the following definitions because of new or revised content in 1 TAC Chapter 213: "Commercially unavailable", "Exception", "Exemption", and "Training/Technical Assistance".

The definition of "Information Technology" was broadened for clarification.

1 TAC §§213.10 - 213.16 (Electronic and Information Resources for State Agencies) and §§213.30 - 213.36 (Electronic and Information Resources for Institution of Higher Education)

The following change was made to §§213.10 - 213.16 (for state agencies) and §§213.30 - 213.36 (for institution of higher education):

An introductory paragraph is added to each section providing for compliance with the rules unless an exception has been granted by an agency's executive director or the president or chancellor of an institution of higher education or an exemption has been granted by the department. The paragraph references the requirements in proposed 1 TAC §213.17 and §213.37, Compliance Exceptions and Exemptions.

1 TAC §213.17 and §213.37, State Agency Application/Institution of Higher Education Application

The department proposes a revision to the title of §213.17 and §213.37 from "State Agency Application/Institution of Higher Education Application" to "Compliance Exceptions and Exemptions". Pursuant to §2054.460(d), Texas Government Code, Exception for Significant Difficulty or Expense, and §2054.461, Texas Government Code, Exemptions, the department is granted the authority to adopt rules regarding the exemption of electronic and information technology resources from the standards and specifications related to accessibility. The proposed rule lists requirements to guide state agencies on how to request and document exceptions and exemptions. The department proposes that this revised rule replace existing 1 TAC §213.17, State Agency Application, and 1 TAC §213.37, Institutions of Higher Education Application. The department proposes to delete the existing rule and move parts of it to 1 TAC §213.18 and §213.38, Procurements.

The department proposes to add the following new sections:

1 TAC §213.18 and §213.38, Procurements.

Pursuant to §2054.453 (a), Texas Government Code, Compliance With Federal Standards and Laws, the department is granted the authority to adopt rules and evaluation criteria, including rules regarding: (1) the development, procurement, maintenance, and use of electronic and information resources by state agencies to provide access to individuals with disabilities; and (2) a procurement accessibility policy. The content regarding procurement for the proposed rules was moved from the existing 1 TAC §213.17, State Agency Application, and 1 TAC §213.37, Institutions of Higher Education Application. The proposed rule also allows state agencies and institutions of higher education to comply with an internal procurement policy as an alternative to the requirement to use the Voluntary Product Accessibility Template (VPAT) or the Accessibility Wizard.

1 TAC §213.19 and §213.39, Accessibility Training and Technical Assistance.

Pursuant to §2054.452, Texas Government Code, Training and Technical Assistance, the department is granted the authority to provide training and technical assistance to state agencies and institutions of higher education regarding accessibility compliance, and to adopt rules to implement this section. The proposed rules provide for roles and responsibilities of the department, state agencies and institutions of higher education in providing accessibility training.

1 TAC §213.20 and §213.40, Accessibility and Reporting Requirement.

Pursuant to §2054.464, Texas Government Code, Survey; Reporting Requirements, the department is granted the authority to adopt guidelines regarding: (1) an electronic and information resources state agency survey; and (2) state agency reporting requirements for implementation of this subchapter. The proposed rule addresses the requirement that the department conduct an electronic and information resources survey to determine state agencies' and institutions of higher education's compliance with 1 TAC Chapter 206 and Chapter 213 requirements.

1 TAC §213.21 and §213.41, Accessibility Policy and Coordinator.

Accessibility is related to both information technology and Web site rules. Because some people may not have a need to look at the rules in 1 TAC Chapter 206 regarding Accessibility Standards for State Web Sites, the requirements for the accessibility policy and accessibility coordinator are also proposed for 1 TAC §213.21 and §213.41, Accessibility Policy and Coordinator.

The department proposes to add new subsections (a) - (c) regarding Accessibility policy requirements.

The department proposes to add a new subsection (d) adding the requirement for an Accessibility Coordinator for state agencies and institutions of higher educations.

IMPACT ON STATE AGENCIES AND INSTITUTIONS OF HIGHER EDUCATION

The rule changes should have a minimal impact because most of the requirements for the rules became law on September 1, 2006. Some comments of concern have been expressed about the cost of bringing Web pages and PDF documents into compliance. This is already a requirement of the existing rules in 1 TAC Chapter 206. The only significant new requirement is set forth in 1 TAC §§206.51, 206.71, 213.21 and 213.41, Accessibility Policy and Coordinator, which require each agency and institution of higher education to have an accessibility coordinator. The impact will vary depending on if the agency or institution of higher education already has someone on staff in that position or if they have to hire someone. The estimated cost for hiring someone for the position is stated in the fiscal note below.

Because the proposed rules apply to institutions of higher education, the department, in consultation with the Information Technology Council for Higher Education, prepared an analysis of the impact of the rules that included consideration of the requirements in Chapter 2054, Subchapter M, Texas Government Code. Issues and concerns regarding the potential impact of the rules on higher education and student populations were identified, including: (1) the proposed rules require certain approvals by the agency head. Institutions of higher education requested that exceptions be approved by someone other than the head of the institution; (2) the term "Web page" should be clarified; (3) change the proposed 1 TAC §213.38 to allow institutions of higher education to comply with an internal procurement policy as an alternative to the requirement to use the Voluntary Product Accessibility Template (VPAT) or the Accessibility Wizard; and (4) certain other definitions should be revised. The department proposed alternatives to address the issues, which were acceptable to the Information Technology Council for Higher Education, including: (1) explaining that approval of exceptions by the institution of higher education's president or chancellor was statutorily required, but could be addressed by internal policies and procedures; (2) revising the term "Web page"; (3) allowing institutions of higher education to comply with an internal procurement policy as an alternative to being required to use the VPAT or the Accessibility Wizard as originally proposed in 1 TAC §213.38; and (4) changing certain definitions.

FISCAL NOTE

Ginger Salone, Deputy Executive Director of Statewide Technology Service Delivery, has determined that for the first five-year period the rules are in effect, the fiscal impact to state agencies and institutions of higher education is approximately $11 million. This cost is related to the change in rule that requires state agencies and institutions of higher education to designate an Accessibility Coordinator for their agencies. Sixty two agencies have indicated they do not currently have an Accessibility Coordinator designated. Depending on the size of the agency, the department estimates that the requirements of this position will vary from fifteen percent of a full-time equivalent (FTE) for agencies with less than 100 FTEs, a total of $1.1 million; fifty percent of an FTE for agencies with less than 1,000 FTEs, a total of $4 million; and one hundred percent of an FTE for agencies with 1,000 FTEs and greater, a total of $5.9 million.

PUBLIC BENEFIT

The department is committed to making electronic and information resources usable by people of all abilities and disabilities. The department worked in collaboration with other government entities to develop these proposed rule changes. Ms. Salone has determined that for each year of the first five years the proposed rules are in effect the public benefits anticipated as a result of enforcing or administering the rules will be that all users of electronic and information resources covered by these rules will have equal access to state government. There are no anticipated economic costs to persons or small businesses required to comply with the proposed rules.

Comments on the proposed amendments and new rules may be submitted to Martin Zelinsky, Assistant General Counsel, Department of Information Resources, 300 West 15th Street, Suite 1300, Austin, Texas 78701, martin.zelinsky@dir.state.tx.us, for 30 days following publication of the proposal in the Texas Register.

The amendments and new sections are proposed under §2054.052(a) and §2054.453, Texas Government Code.

No other statutes are affected by the proposal.