\[**Federal** Register: April 25, 2001 (Volume 66, Number 80)\]

\[Rules and **Regulations**\]

\[Page 20893-20897\]

From the **Federal** Register Online via GPO Access
\[wais.access.gpo.gov\]

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Part IV

Department of Defense

General Services Administration

National Aeronautics and Space Administration

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48 CFR Part 2, et al.

48 CFR Chapter 1

**Federal** **Acquisition** **Regulations**; Electronic and Information
Technology

Accessibility and Small Entity Compliance Guide; **Federal**
**Acquisition**

Circular 97-27, FAR Case 1999-607; Final Rules

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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** **Regulations**; 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** **Regulations** (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., 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

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\--

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;

EIT for a national security system;

EIT acquired by a contractor incidental to a contract;

EIT located in spaces frequented only by service personnel

for maintenance, repair or occasional monitoring of equipment; and

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

\[\[Page 20895\]\]

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 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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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 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

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://](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.accessboard.gov/sec508/assessment.htm)

[www.accessboard.gov/sec508/assessment.htm](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.accessboard.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.

\[\[Page 20896\]\]

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: April 20, 2001.

Al Matera,

Director, **Acquisition** Policy Division.

**Federal** **Acquisition** Circular

**Federal** **Acquisition** Circular (FAC) 97-27 is issued under the

authority of the Secretary of Defense, the Administrator of Aeronautics

and Space Administration.

All **Federal** **Acquisition** Regulation (FAR) changes and other

directive material contained in FAC 97-27 are effective June 25, 2001.

Dated: April 19, 2001.

Deidre A. Lee,

Director, Defense Procurement.

Dated: April 16, 2001.

David A. Drabkin,

Deputy Associate Administrator, Office of **Acquisition** Policy,

General Services Administration.

Dated: April 16, 2001.

Tom Luedtke,

Associate Administrator for Procurement, National Aeronautics and

Space Administration.

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:

2.101 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 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

\[\[Page 20897\]\]

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), 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 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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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 paragraph (b)(2)

of this section).

\(2\) 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., 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. 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).

\[FR Doc. 01-10408 Filed 4-24-01; 8:45 am\]

BILLING CODE 6820-EP-P