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]{.underline}: June 25, 2001. [Applicability Date]{.underline}: 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]{.underline} [Register]{.underline} at 65 FR 80500, December
21, 2000. A proposed rule to amend the FAR was published in the
[Federal]{.underline} [Register]{.underline} 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

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-   Adding a new Subpart 39.2.

[Applicability]{.underline}\
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]{.underline}., vendor's or other exact web
page location). The Access Board's 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]{.underline}\
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]{.underline}\
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]{.underline}\
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]{.underline} [Register]{.underline}). 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]{.underline}\
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]{.underline}\
A topic of concern to commentors was the play between the definition of
EIT and a contractor's incidental use of EIT. The rule was not intended
to automatically apply to a contractor's internal workplaces. For
example, EIT neither used nor accessed by Federal employees or members
of the public is not subject to the Access Board's 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](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]{.underline}., 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
Board's 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 agency's
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]{.underline}\
The requiring official must identify which standards apply to the
procurement, using the Access Board's 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 Board's 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]{.underline} [seq]{.underline}., 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]{.underline} [seq]{.underline}. (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]{.underline} [seq]{.underline}.\
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 2---DEFINITIONS OF WORDS AND TERMS\
2. In section 2.101, add in alphabetical order, the definition
\"Electronic and information technology (EIT)\" to read as follows:\
\
2.101Definitions.\
\*\*\*\*\*\
[Electronic and information technology (EIT)]{.underline} 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 7---ACQUISITION 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 10---MARKET 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 11---DESCRIBING 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)](http://www.usdoj.gov/crt/508/508law.html), 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](http://www.access-board.gov/sec508/508standards.htm)
at 36 CFR part 1194 (see Subpart 39.2).\
PART 12---ACQUISITION 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 39---ACQUISITION 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 39.2---Electronic 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]{.underline}., vendor's 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]{.underline}. 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]{.underline}. (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).