Final FAR Rule
For Implementing Section 508 of the Rehab
Act
Electronic and Information Technology Accessibility for Persons
with Disabilities
As published in the Federal Register April 25, 2001
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 7, 10, 11, 12, and 39
[FAC 97-27; FAR Case 1999-607]
RIN 9000-AI69
Federal Acquisition Regulation; Electronic and Information Technology
Accessibility
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final
rule amending the Federal Acquisition Regulation (FAR) to implement
Section 508 of the Rehabilitation Act of 1973. Subsection 508(a)(3)
requires the FAR to be revised to incorporate standards developed
by the Architectural and Transportation Barriers Compliance Board
(also referred to as the "Access Board").
DATES: Effective Date: June 25, 2001.
Applicability Date: For other than indefinite-quantity contracts,
this amendment applies to contracts awarded on or after the effective
date. For indefinite-quantity contracts, it is applicable to delivery
orders or task orders issued on or after the effective date.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035,
GS Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification
of content, contact Ms. Linda Nelson, Procurement Analyst, at (202)
501-1900. Please cite FAC 97-27, FAR case 1999-607.
SUPPLEMENTARY INFORMATION:
A. Background
The Workforce Investment Act of 1998, Public Law 105-220, was enacted
on August 7, 1998. Title IV of the Act is the Rehabilitation Act
Amendments of 1998. Subsection 408(b) amended section 508 of the
Rehabilitation Act of 1973 (29 U.S.C. 794d). Subsection 508(a)(1)
requires that when Federal departments or agencies develop, procure,
maintain, or use Electronic and Information Technology (EIT), they
must ensure that the EIT allows Federal employees with disabilities
to have access to and use of information and data that is comparable
to the access to and use of information and data by other Federal
employees. Section 508 also requires that individuals with disabilities,
who are members of the public seeking information or services from
a Federal department or agency, have access to and use of information
and data that is comparable to that provided to the public without
disabilities. Comparable access is not required if it would impose
an undue burden.
Subsection 508(a)(2)(A) required the Access Board to publish standards
setting forth a definition of EIT and the technical and functional
performance criteria necessary for accessibility for such technology
by February 7, 2000. Subsection 508(a)(3) required the Federal Acquisition
Regulatory Council to revise the FAR to incorporate the Access Board's
standards not later than 6 months after the Access Board regulations
were published. The Access Board published the final standards in
the Federal Register at 65 FR 80500, December 21, 2000.
A proposed rule to amend the FAR was published in the Federal Register
at 66 FR 7166, January 22, 2001. The 60-day comment period ended
March 23, 2001.
This final rule implements the Access Board's regulations by
Including the definition of the term "electronic and information
technology," a term created by the statute; Incorporating the
EIT Standards in acquisition planning, market research, and when
describing agency needs; and
Adding a new Subpart 39.2.
Applicability
The proposed rule did not address the issue of whether the new
rule would apply to contracts already in existence. A number of
public commentors asked for clarification about the applicability
of the rule.
For other than indefinite-quantity contracts, this amendment applies
to contracts awarded on or after the effective date. For indefinite-quantity
contracts, it is applicable to delivery orders or task orders issued
on or after the effective date. Indefinite quantity contracts may
include Federal Supply Schedule contracts, governmentwide acquisition
contracts (GWACs), multi-agency contracts (MACs), and other interagency
acquisitions. Exception determinations are not required for award
of the underlying indefinite-quantity contracts, except for requirements
that are to be satisfied by initial award. Indefinite-quantity contracts
may include noncompliant items, provided that any task or delivery
order issued for noncompliant EIT meets an applicable exception.
Accordingly, requiring activities must ensure compliance with the
EIT accessibility standards at 36 CFR part 1194 (or that an exception
applies) at time of issuance of task or delivery orders.
Contracting offices that award indefinite-quantity contracts must
indicate to ordering offices which supplies and services the contractor
indicates as compliant, and show where full details of compliance
can be found (e.g., vendors or other exact web page location).
The Access Boards EIT standards at 36 CFR part 1194 do not
apply to
Taking delivery for items ordered prior to the effective date of
this rule; Within-scope modifications of contracts awarded before
the effective date of this rule; Exercising unilateral options for
contracts awarded before the effective date of this rule; or Multiyear
contracts awarded before the effective date of this rule.
Exceptions
Unless an exception at FAR 39.204 applies, acquisitions of EIT
supplies and services must meet the applicable accessibility standards
at 36 CFR part 1194. The exceptions in 39.204 include
1.Micro-purchases, prior to January 1, 2003. However, for micro-purchases,
contracting officers and other individuals designated in accordance
with 1.603-3 are strongly encouraged to comply with the applicable
accessibility standards to the maximum extent practicable; 2.EIT
for a national security system; 3.EIT acquired by a contractor incidental
to a contract; 4.EIT located in spaces frequented only by service
personnel for maintenance, repair or occasional monitoring of equipment;
and 5.EIT that would impose an undue burden on the agency.
Micro-purchases
The exception for micro-purchases was in the proposed rule. It
was made in recognition of the fact that almost all micro-purchases
are made using the Governmentwide commercial purchase card. Government
personnel, who are not warranted contracting officers, use the purchase
card to purchase commercial-off-the-shelf items. Use of the purchase
card makes it generally impractical to comply with the EIT accessibility
standards unless commercial-off-the-shelf products are labeled for
standards compliance. Manufacturers are continuing to develop products
that comply with the EIT accessibility standards. It is expected
that almost all products will comply with the standards within the
next two years, and be labeled by the manufacturer accordingly.
Therefore, we have established a sunset date of January 1, 2003,
for the micro-purchase exemption. Prior to that date, the Government
will revisit the state of technology and the pace at which manufacturers
have conformed to the required standards.
The micro-purchase exception does not exempt all products that
cost under $2,500. Some commentors were confused about this. The
exception is for a one-time purchase that totals $2,500 or less,
made on the open market rather than under an existing contract.
A software package that costs $1,800 is not a micro-purchase if
it is part of a $3,000 purchase, or part of a $3,000,000 purchase.
Regardless of purchase price, there still is an agency requirement
to give reasonable accommodation for the disabled under section
504 of the Rehabilitation Act of 1973. The current micro-purchase
limit is $2,500, set by statute. If the threshold is increased by
a statutory change, the FAR Council will consider keeping the FAR
Subpart 39.2 limit at $2,500.
In addition, GSA will recommend that agencies modify cardholder
training to remind purchase cardholders of EIT accessibility requirements.
Undue burden
Another set of comments wanted the FAR to elaborate on undue burden.
The Access Board discussed undue burden in its final rule preamble
(at 65 FR 80506 of the Federal Register). Substantial case law exists
on this term, which comes from disability law. The Access Board
chose not to disturb the existing understanding of the term by trying
to define it. The FAR Council agrees with this approach. Agencies
are required by statute to document the basis for an undue burden.
Requiring officials should be aware that when there is an undue
burden, the statute requires an alternative means of access to be
provided to individuals with disabilities.
Clauses
Some commentors asked for a clause, pointing out that unless the
FAR prescribes a clause, agencies may produce different clauses,
resulting in inconsistent coverage across the Government. Some procurement
offices want a clause to help address their lack of experience with
the Access Board standards. No clauses were in the January proposed
rule. The FAR Council is carefully considering whether clauses are
needed and welcomes comments on this issue that would inform a potential
rulemaking.
Other issues
A topic of concern to commentors was the play between the definition
of EIT and a contractors incidental use of EIT. The rule was
not intended to automatically apply to a contractors internal
workplaces. For example, EIT neither used nor accessed by Federal
employees or members of the public is not subject to the Access
Boards standards (contractor employees in their professional
capacity are not members of the public for purposes of section 508).
Commentors asked for further information on section 508 product
compliance. There is a website at http://www.section508.gov, providing
information from manufacturers and vendors on how they meet Access
Board standards. The website reference has been added to the FAR
language at Subpart 39.2.
Commentors asked whether the Committee for Purchase from People
Who Are Blind or Severely Disabled, and Federal Prison Industries
(UNICOR) were covered. These are required sources for certain items.
Agencies must consider noncompliant EIT items from these sources
the same way that they would consider items from commercial sources,
i.e., whether purchasing the item would come under an exception.
As a matter of policy, purchases from the Committee for Purchase
from People Who Are Blind or Severely Disabled and Federal Prison
Industries are to be treated as procurements.
The current status of compliance testing also was discussed in
comments. Currently there is no uniform testing. However, there
is an industry-led, Government-sponsored, program in the works,
Accessibility for People with Disabilities through Standards Interoperability
and Testing (ADIT). See the Section 508 website for information.
Questions arose on draft rule section 39.X03, Applicability, on
the interpretation of standards available in the marketplace. The
rule intended to recognize that initially there will be many products
that do not meet all the Access Boards technical standards.
Agencies may need to acquire these products. When acquiring commercial
items, an agency must comply with those accessibility standards
that can be met with supplies and services available in the commercial
marketplace in time to meet the agencys delivery requirements.
Individual standards that cannot be met would be documented by the
requiring official, with a copy to the contract file. If products
are available that meet some, but not all applicable standards,
agencies cannot claim a product as a whole is nonavailable just
because it does not meet all of the standards.
Requirements development, market research, and solicitations
The requiring official must identify which standards apply to the
procurement, using the Access Boards EIT Accessibility Standards
at 36 CFR part 1194. Then the requiring official must perform market
research to determine the availability of compliant products and
services; vendor websites and the Section 508 website would be helpful
here. The requiring official must then identify which standards,
if any, would not apply in this procurement because of, for example,
nonavailability (FAR 39.203) or undue burden (FAR 39.204(e)). Technical
specifications and minimum requirements would be developed based
on the market research results and agency needs. This information
would be submitted with the purchase request. The solicitation would
then be drafted, or a task order or delivery order would be placed.
Proposal evaluation may yield additional information that could
require reconsideration of the need for an exception.
B. Executive Order 12866
The Access Board determined that their December 21, 2000, final
rule was an economically significant regulatory action under E.O.
12866, and was a major rule under 5 U.S.C. 804. An economic assessment
was accomplished and was placed on the Access Boards website
at http://www.access-board.gov/sec508/assessment.htm. A copy can
be obtained from the Access Board. The FAR Council has determined
that the assessment conducted by the Access Board provides an adequate
economic assessment of both the Access Board rule and this change
to the FAR. Accordingly, the Access Board's regulatory assessment
meets the requirement of performing a regulatory assessment for
this change to the FAR and no further assessment is necessary.
This is an economically significant regulatory action and was subject
to review under Section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is a major
rule under 5 U.S.C. 804.
C. Regulatory Flexibility Act
This rule has a significant economic impact on a substantial number
of small entities within the meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., because small businesses that choose
to market their products to the Federal Government must ensure that
their electronic and information technology supplies or services
meet the substantive requirements of the Access Board's standards.
Since this may result in increased costs of producing and selling
their products, a Final Regulatory Flexibility Analysis (FRFA) has
been performed and the analysis is summarized as follows:
The objective of this rule is to revise the FAR to improve the
accessibility of electronic and information technology used by the
Federal Government. The standards developed by the Access Board
affect Federal employees with disabilities as well as members of
the public with disabilities who seek to use Federal electronic
and information technologies to access information. This increased
access reduces barriers to employment in the Federal Government
for individuals with disabilities and reduces the probability that
Federal employees with disabilities will be under-employed. The
EIT standards developed for the Federal Government may result in
benefiting people outside the Federal workforce, both with and without
disabilities. The accessible technology from the Federal Government
may spill over to the rest of society.
Section 508 uses the Federal procurement process to ensure that
technology acquired by the Federal Government is accessible. Failure
of an agency to purchase electronic and information technology that
complies with the standards promulgated at 36 CFR part 1194, may
result in an individual with a disability filing a complaint alleging
that a Federal agency has not complied with the standards. Individuals
may also file a civil action against an agency. The enforcement
provision of section 508 takes effect June 21, 2001.
This rule establishes that contractors must manufacture, sell,
or lease electronic and information technology supplies or services
that comply with standards promulgated at 36 CFR part 1194. For
many contractors, this may simply involve a review of the supply
or service with the standards to confirm compliance. For other contractors,
these standards could require redesign of a supply or service before
it can be sold to the Federal Government. According to the Federal
Procurement Data System in fiscal year 2000, we estimate that there
are approximately 17,550 contractors to which the rule will apply.
Approximately, 58 percent, or 10,150, of these contractors are small
businesses.
Small businesses will have to analyze whether the electronic and
information technology they or their customers plan to sell to the
Federal Government complies with the standards. Manufacturers may
want to redesign to make their supplies and services compliant,
to have a better chance for their items to be purchased by the Government.
Retailers will need to coordinate with the manufacturers. The statute
will decrease demand for some supplies and services that are not
compliant, leading to decreased sales for small entities manufacturing
or selling those items. Conversely, the statute will increase demand
for some supplies and services that are compliant, leading to increased
sales for small entities manufacturing or selling those items.
Since the statute imposes private enforcement, where individuals
with disabilities can file civil rights lawsuits, the Government
has little flexibility for alternatives in writing this regulation.
To meet the requirements of the law, we cannot exempt small businesses
from any part of the rule.
The FAR Secretariat has submitted a copy of the FRFA to the Chief
Counsel for Advocacy of the Small Business Administration. A copy
of the FRFA may be obtained from the FAR Secretariat. The Councils
will consider comments from small entities concerning the affected
FAR parts in accordance with 5 U.S.C. 610. Comments must be submitted
separately and should cite 5 U.S.C. 601, et seq. (FAR case 1999-607),
in correspondence.
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes
to the FAR do not impose information collection requirements that
require the approval of the Office of Management and Budget under
44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR parts 2, 7, 10, 11, 12, and 39:
Government procurement.
Dated:
AL MATERA,
Director,
Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 7, 10, 11,
12, and 39 as set forth below:
1. The authority citation for 48 CFR parts 2, 7, 10, 11, 12, and
39 continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C.
2473(c).
PART 2DEFINITIONS OF WORDS AND TERMS
2. In section 2.101, add in alphabetical order, the definition
"Electronic and information technology (EIT)" to read
as follows:
2.101 Definitions.
* * * * *
Electronic and information technology (EIT) has the same meaning
as "information technology" except EIT also includes any
equipment or interconnected system or subsystem of equipment that
is used in the creation, conversion, or duplication of data or information.
The term EIT, includes, but is not limited to, telecommunication
products (such as telephones), information kiosks and transaction
machines, worldwide websites, multimedia, and office equipment (such
as copiers and fax machines).
* * * * *
PART 7ACQUISITION PLANNING
3. In section 7.103, redesignate paragraphs (o) through (r) as
(p) through (s), respectively; and add a new paragraph (o) to read
as follows:
7.103 Agency-head responsibilities.
* * * * *
(o) Ensuring that acquisition planners specify needs and develop
plans, drawings, work statements, specifications, or other product
descriptions that address Electronic and Information Technology
Accessibility Standards (see 36 CFR part 1194) in proposed acquisitions
(see 11.002(e)) and that these standards are included in requirements
planning, as appropriate (see Subpart 39.2).
* * * * *
PART 10MARKET RESEARCH
4. In section 10.001, add paragraph (a)(3)(vii) to read as follows:
10.001 Policy.
(a) * * *
(3) * * *
(vii) Assess the availability of electronic and information technology
that meets all or part of the applicable accessibility standards
issued by the Architectural and Transportation Barriers Compliance
Board at 36 CFR part 1194 (see Subpart 39.2).
* * * * *
PART 11DESCRIBING AGENCY NEEDS
5. In section 11.002, add paragraph (f) to read as follows:
11.002 Policy.
* * * * *
(f) In accordance with Section 508 of the Rehabilitation Act of
1973 (29 U.S.C. 794d), requiring activities must prepare requirements
documents for electronic and information technology that comply
with the applicable accessibility standards issued by the Architectural
and Transportation Barriers Compliance Board at 36 CFR part 1194
(see Subpart 39.2).
PART 12ACQUISITION OF COMMERCIAL ITEMS
6. Amend section 12.202 by adding a new paragraph (d) to read as
follows:
12.202 Market research and description of agency need.
* * * * *
(d) Requirements documents for electronic and information technology
must comply with the applicable accessibility standards issued by
the Architectural and Transportation Barriers Compliance Board at
36 CFR part 1194 (see Subpart 39.2).
PART 39ACQUISITION OF INFORMATION TECHNOLOGY
7. Revise section 39.000 to read as follows:
39.000 Scope of part.
This part prescribes acquisition policies and procedures for use
in acquiring
(a) Information technology, including financial management systems,
consistent with other parts of this regulation, OMB Circular No.
A-127, Financial Management Systems, and OMB Circular No. A-130,
Management of Federal Information Resources; and
(b) Electronic and information technology.
8. Add Subpart 39.2, consisting of sections 39.201 through 39.204,
to read as follows:
Subpart 39.2Electronic and Information Technology
Sec.
39.201 Scope of subpart.
39.202 Definition.
39.203 Applicability.
39.204 Exceptions.
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C.
2473(c).
39.201 Scope of subpart.
(a) This subpart implements Section 508 of the Rehabilitation Act
of 1973 (29 U.S.C. 794d), and the Architectural and Transportation
Barriers Compliance Board Electronic and Information Technology
(EIT) Accessibility Standards (36 CFR part 1194).
(b) Further information on Section 508 is available via the Internet
at http://www.section508.gov.
(c) When acquiring EIT, agencies must ensure that
(1) Federal employees with disabilities have access to and use
of information and data that is comparable to the access and use
by Federal employees who are not individuals with disabilities;
and
(2) Members of the public with disabilities seeking information
or services from an agency have access to and use of information
and data that is comparable to the access to and use of information
and data by members of the public who are not individuals with disabilities.
39.202 Definition.
Undue burden, as used in this subpart, means a significant difficulty
or expense.
39.203 Applicability.
(a) Unless an exception at 39.204 applies, acquisitions of EIT
supplies and services must meet the applicable accessibility standards
at 36 CFR part 1194.
(b)(1) Exception determinations are required prior to contract
award, except for indefinite-quantity contracts (see (b)(2)).
(2) Exception determinations are not required prior to award of
indefinite-quantity contracts, except for requirements that are
to be satisfied by initial award. Contracting offices that award
indefinite-quantity contracts must indicate to requiring and ordering
activities which supplies and services the contractor indicates
as compliant, and show where full details of compliance can be found
(e.g., vendors or other exact website location).
(3) Requiring and ordering activities must ensure supplies or services
meet the applicable accessibility standards at 36 CFR part 1194,
unless an exception applies, at the time of issuance of task or
delivery orders. Accordingly, indefinite-quantity contracts may
include noncompliant items; however, any task or delivery order
issued for noncompliant items must meet an applicable exception.
(c)(1) When acquiring commercial items, an agency must comply with
those accessibility standards that can be met with supplies or services
that are available in the commercial marketplace in time to meet
the agency's delivery requirements.
(2) The requiring official must document in writing the nonavailability,
including a description of market research performed and which standards
cannot be met, and provide documentation to the contracting officer
for inclusion in the contract file.
39.204 Exceptions.
The requirements in 39.203 do not apply to EIT that
(a) Is purchased in accordance with Subpart 13.2 (micro-purchases)
prior to January 1, 2003. However, for micro-purchases, contracting
officers and other individuals designated in accordance with 1.603-3
are strongly encouraged to comply with the applicable accessibility
standards to the maximum extent practicable;
(b) Is for a national security system;
(c) Is acquired by a contractor incidental to a contract;
(d) Is located in spaces frequented only by service personnel for
maintenance, repair or occasional monitoring of equipment; or
(e) Would impose an undue burden on the agency.
(1) Basis. In determining whether compliance with all or part of
the applicable accessibility standards in 36 CFR part 1194 would
be an undue burden, an agency must consider
(i) The difficulty or expense of compliance; and
(ii) Agency resources available to its program or component for
which the supply or service is being acquired.
(2) Documentation. (i) The requiring official must document in
writing the basis for an undue burden decision and provide the documentation
to the contracting officer for inclusion in the contract file.
(ii) When acquiring commercial items, an undue burden determination
is not required to address individual standards that cannot be met
with supplies or service available in the commercial marketplace
in time to meet the agency delivery requirements (see 39.203(c)(2)
regarding documentation of nonavailability).
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