The Texas Department of Information Resources (department) adopts amendments to 1 TAC Chapter 213, §§213.10 - 213.16, 213.19 - 213.21, 213.30 - 213.36, and 213.39 - 213.41 without changes to the proposed text as published in the June 6, 2014, issue of the Texas Register (39 TexReg 4327). The amendments to §§213.1, 213.17, 213.18, 213.37, and 213.38 are adopted with changes to the proposed text as published in the June 6, 2014, issue of the Texas Register (39 TexReg 4327) and will be republished.

The amendments include the addition of new definitions and the modification of some existing definitions in §213.1; requirements in §213.17 and §213.37 for EIR compliance exceptions and exemptions; requirements in §213.18 and §213.38 for commodity procurement contracts; and requirements in §213.21 and §213.41 regarding agency and institution of higher education accessibility policies and accessibility coordinator positions.

In §213.1 the department adds the following definitions because of new or revised content in 1 TAC Chapter 213: "Accessible", "Department", "Major Information Resources Project", "Section 508", and "Technical Accessibility Standards and Specifications".

The definitions of "Electronic and Information Resources (EIR)" and "Voluntary Product Accessibility Template (VPAT)" have been broadened for clarification; and definitions for "Exception" and "Exemption" have been changed to include the phrase "non-compliance" rather than "non-conformance". The department deletes the definitions for "Buy Accessible Wizard", "Commercially unavailable", "Electronic and information Resources accessibility standards", and "Web Accessibility Standards" that are no longer applicable for new or revised content in 1 TAC Chapter 213.

In addition, the department amends the term "electronic and information resources" as "EIR" in §§213.10 - 213.21 (for state agencies) and §§213.30 - 213.41 (for institutions of higher education) for simplicity and brevity.

In 1 TAC §213.17, for state agencies; and §213.37, for institutions of higher education, the department adds language to include specific exception areas pursuant to §§2054.460, 2054.462, and 2054.463, Texas Government Code. The department clarifies language for exceptions based on significant difficulty or expense and includes new language requiring additional supporting information for each exception. Procedures for creating and maintaining exception requests have also been clarified. The department also modifies language requiring an exemption to include additional information as justification for the exemption.

In 1 TAC §213.18, for state agencies; and §213.38, for institutions of higher education, the amendments include the elimination of the use of Buy Accessible Wizard documents as a means of communicating accessibility compliance and sets forth provisions for the department and agencies to request other evidence of a vendor's ability to produce accessible EIR products and services. The department requires that a procurement policy be implemented and that an agency's contract or procurement oversight staff shall monitor the agency's procurement processes and contracts for accessibility compliance. The department has clarified to what EIR these procurement provisions apply. The department adds a new provision requiring accessibility testing for projects which meet the criteria of a major information resource project.

In 1 TAC §213.19, for state agencies; and §213.39, for institutions of higher education, the department reorganizes existing provisions and requires the executive director of each agency and the president or chancellor of each institution of higher education to ensure appropriate staff receives training necessary to meet accessibility-related rules.

In 1 TAC §213.20, for state agencies; and §213.40, for institutions of higher education, the amended rule requires responses to the electronic and information resources state agency survey to be supported by agency documentation.

In 1 TAC §213.21, for state agencies; and §213.41, for institutions of higher education, the department adds a requirement for the department to designate and maintain a person responsible for statewide accessibility initiatives. The department has made clarifications to provisions related to the publication of agency accessibility policies and plans.

The department includes a new provision requiring agencies and institutions of higher education to provide contact and other information for the Accessibility Coordinator and to inform the department of any accessibility coordinator changes within a prescribed timeframe. The department also requires the EIR Accessibility Coordinator position to be located within the organization to ensure effectiveness. Finally, the department adds a requirement for agencies and institutions of higher education to establish goals for making EIR accessible.

The department published a formal notice of rule review in the September 6, 2013, issue of the Texas Register (38 TexReg 5907). The proposed amendments were published in the June 6, 2014, issue of the Texas Register (39 TexReg 4327). The department received written comments from one interested individual during the 30-day comment period in response to the proposed rules. A summary of the comments and responses follows.

Comment concerning §213.1(1), Applicable Terms and Technologies for Electronic Information Resources. The commenter suggested a correction for error in definition of Accessible.

Response: The department agrees with the correction. The corrected text for §213.1(1) is revised to eliminate the word "the": "Accessible--Describes an electronic and information resource that can be used in a variety of ways and (the use of which) does not depend on a single sense or ability."

Comment concerning §213.18(a)(2) for state agencies and §213.38(a)(2) for institutions of higher education related to procurements. The commenter suggested revising text by adding "credible" before "evidence" to be consistent with §213.18(b)(2) and §213.38(b)(2).

Response: The department agrees with the suggested revision and has revised the text for §213.18(a)(2) and §213.38(a)(2) to include "credible". In addition the department has determined that to retain consistency between subsections (a) and (b) within §213.18 and §213.38, the phrase "contractual warranties for accessibility" should be added to §213.18(a)(2) and §213.38(a)(2). The text is revised to: "credible evidence of the vendor's capability or ability to produce accessible EIR products and services. Such evidence may include, but is not limited to, a vendor's internal accessibility policy documents, contractual warranties for accessibility, accessibility testing documents, and examples of prior work results."

Furthermore, the department has determined that there should be an additional consistent use of a phrase between subsections (a) and (b) for §213.18 and §213.38. The text "all that apply" is added to subsection (a) for both §213.18 for state agencies and §213.38 for institutions of higher education. The text for §213.18(a) is revised to: "The department, in establishing commodity procurement contracts, for which the solicitation is issued on or after January 1, 2015, shall obtain and make available to state agencies all that apply:" The text for §213.38(a) is revised to: "The department, in establishing commodity procurement contracts, for which the solicitation is issued on or after January 1, 2015, shall obtain and make available to institutions of higher education all that apply:"

Comment concerning §213.18(e) for state agencies and §213.38(e) for institutions of higher education related to procurements. The commenter expressed concern the subsection is ambiguous in how it excludes accessibility requirements for information technology acquired by a contractor or grantee, incidental to a contract or grant, provided the technology does not become State property upon completion of the contract.

Response: In order to eliminate the ambiguity, the department has deleted both subsections and believes §213.38(d) adequately addresses the requirements for accessibility with regard to EIR technology used by a contractor. Subsequent subsections are renumbered to retain proper order.

Comment concerning §213.17(3)(D) for state agencies and §213.37(3)(D) for institutions of higher education related to compliance exceptions and exemptions. The commenter requested clarification on the type of documentation needed to justify an exception for a significant difficulty or expense for an EIR product.

Response: In order to provide clarity, the department has added the following text to both subsections: "Examples may include, but are not limited to, agency budget, grants, and alternative vendor or product selections."

The amendments and revisions are adopted under §2054.052(a), Texas Government Code, which authorizes the department to adopt rules as necessary to implement its responsibilities under Chapter 2054; and §2054.453, Texas Government Code, which authorizes the department to adopt rules in compliance with federal standards and laws regarding the development, procurement, maintenance, and use of electronic information resources by state agencies to provide access to individuals with disabilities. The assessment of the impact of the proposed changes on institutions of higher education was prepared in consultation with the Information Technology Council for Higher Education in compliance with §2054.121(b), Texas Government Code.

No other code, article or statute is affected by this adoption.