# Presentation: 233023

## §508 Subpart A 

*Discussion Based on September 3, 2007 TEITAC Wiki *

## TOPICS TO BE DISCUSSED

**Section 1194.1 Purpose**
**Comparable Access**
**Section 1194.2 Application**
**Business Need**
**Section 1194.3 General Exceptions**
**Fundamental Alteration**
**Service Area**
**Self-Contained Closed Products- Narrow Delineated Use**
**Security**

## Section 1194.1 Purpose

- Two proposed edits to address Comparable Access or “Access to and use of information and data that is comparable to ....”.
- _Either_ can be incorporated.

## Section 1194.1 Purpose: Edit 1

- The purpose of this part is to implement section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d). Section 508 requires that when Federal agencies develop, procure, maintain, or use electronic and information technology, Federal employees with disabilities have access to and use of information and data **INCLUDING COMMUNICATION THAT IS TIMELY, ACCURATE, COMPLETE AND EFFICIENT WHEN COMPARED** to the access and use by Federal employees who are not individuals with disabilities, unless an undue burden would be imposed on the agency. Section 508 also requires that individuals with disabilities, who are members of the public seeking information or services from a Federal agency, have access to and use of information and data* ***INCLUDING COMMUNCATION THAT IS TIMELY, ACCURATE, COMPLETE AND EFFICIENT WHEN COMPARED** to that provided to the public who are not individuals with disabilities, unless an undue burden would be imposed on the agency.

## Section 1194.1 Purpose: Edit 2

- Rather than adding to Purpose section, add provision to Application section of the §508 Standards

## Discussion - - Rationale

- Regardless of approach, recommended that explanatory information be provided:
- Timely access means that individuals with disabilities have information and data available to them at the same time as individuals without disabilities, but that does not preclude captions that are slightly delayed or other reasonable differences in timing given individual situations.
- Accurate means that the information and data reflects the intended meaning especially when converted into another form or media.
- Complete means that all critical information and data is present when accessed by assistive technology or converted into another form or media.
- Efficient means that an individual with a disability exerts a reasonably similar or comparable amount of effort (given the capacity of current assistive technology) in using electronic and information technology as compared to an individual without a disability.
- Access may be delivered via built-in access features or compatibility with assistive technology as described in the technical standards specified in S*ubpart B*.

## Recommendation

- Forward both proposals to the Access Board to determine appropriate wording and placement in standards .

## Section 1194.2 Application 

- This provision has alternate versions.

## Section 1194.2 Application- 	Current w/accepted Change

**(****a)** Products covered by this part shall comply with all applicable provisions of this part. When developing, procuring, maintaining, or using electronic and information technology, each agency shall ensure that the products comply with the applicable provisions of this part, unless an undue burden would be imposed on the agency.
**(1)** When compliance with the provisions of this part imposes an undue burden, agencies shall provide individuals with disabilities with the information and data involved by an alternative means of access that allows the individual to use the information and data.
**(2)** When **DEVELOPING**, procuring, **MAINTAINING, OR USING** a product, if an agency determines that compliance with any provision of this part imposes an undue burden, the documentation by the agency supporting the **DEVELOPMENT,** procurement, **MAINTANENCE, OR USE** shall explain why, and to what extent, compliance with each such provision creates an undue burden.
**(b)** When procuring a product, each agency shall procure products which comply with the provisions in this part when such products are available in the commercial marketplace or when such products are developed in response to a Government solicitation. Agencies cannot claim a product as a whole is not commercially available because no product in the marketplace meets all the standards. If products are commercially available that meet some but not all of the standards, the agency must procure the product that best meets the standards.
**(c)** Except as provided by §1194.3(b), this part applies to electronic and information technology developed, procured, maintained, or used by agencies directly or used by a contractor under a contract with an agency which requires the use of such product, or requires the use, to a significant extent, of such product in the performance of a service or the furnishing of a product.

## Section 1194.2 Application- Edit 1

- Add New Introductory statement:
**IN GENERAL, THIS SECTION APPLIES ONLY TO THE *****CONSIDERATION***** OF ACCESSIBILITY IN THE PROCESS OF DEVELOPING, PROCURING, MAINTAINING, OR USING ELECTRONIC AND INFORMATION TECHNOLOGY.**

## Section 1194.2 Application

**New Note for Procurements- originally proposed to be added to end of Application Section :** To facilitate the determination of the product best meeting the provisions of this part, those provisions that apply for a given acquisition should be enumerated during the process of determining business and technical requirements.
- The note was intended to provide explanatory information regarding inclusion of accessibility provisions in the process of developing business and technical requirements.
- Subcommittee did not reach consensus on the inclusion of the note
- At July TEITAC plenary meeting there was general agreement to not include the addition of the "Note for Procurements".. Concerns were voiced that the Note was confusing and inconsistent with the addition of the introductory language.

## Application- Rationale Edit 1

- Varying interpretations of how Section 508 should be applied when making an acquisition. In some cases there is the expectation that accessibility should trump agency business needs and other requirements. This language clarifies that accessibility must be determined within the parameters of Section 508, but does not purport to direct agencies as to how to make overall procurement decisions. Agencies are required to consider accessibility within the framework of other regulated procurement practices such as the FAR.
- Intent to clarify that regulations in this section, that impact agency procurement procedures, apply ONLY to the consideration of accessibility.
- Not intended to provide regulatory direction regarding HOW agencies consider other factors, such as business and technical needs and requirements, when making an acquisition. The FAR defines procurement parameters for a number of agencies and agencies need to determine how to address accessibility within the parameters of other required procurement considerations and processes.

## Section 1194.2 Application- Edit 2

**Change (b) **
**(b)** When procuring a product, each agency of paragraph shall procure products which comply with the provisions in this part when such products are available in the commercial marketplace or when such products are developed in response to a Government solicitation. Agencies cannot claim a product as a whole is not commercially available because no product in the marketplace meets all the standards. If products are **NOT** commercially available that meet all of the standards, the agency must procure the product that best meets **THE AGENCIES BUSINESS NEEDS AND the APPLICABLE ACCESS** standards.

## Rationale Edit 2

- Rationale for changes to paragraph b: Clarifies the use of “best meets” when products are not commercially available that comprehensively meet each and every standard, but might partially meet one or more individual standards or meet some but not all of the standards. Improves understanding of clause.

## Section 1194.2 Application- Edit 3

- Delete 2(b) in full & defer to Access Board and FAR
**(b)** When procuring a product, each agency of paragraph shall procure products which comply with the provisions in this part when such products are available in the commercial marketplace or when such products are developed in response to a Government solicitation. Agencies cannot claim a product as a whole is not commercially available because no product in the marketplace meets all the standards. If products are NOT commercially available that meet all of the standards, the agency must procure the product that best meets THE AGENCIES BUSINESS NEEDS AND the APPLICABLE ACCESS standards.

## Rationale 

- Some subcommittee members voiced support for removing (b) in total and deferring all procurement decision-making procedures to the Federal Acquisition Regulations (FAR) and/or other governing procurement policies.
- The Access Board and FAR will be simultaneously considering the 508 regulations- this presents an opportune time for GSA and the Access Board to consider how to ensure best provide guidance for agencies to implement 508 within the procurement process.

## Section 1194.2 Application- Edit 4

- No Change
- Some subcommittee members indicated that this limitation was sufficiently provided via § 1194.1 Purpose and the new language was not necessary.

## Section 1194.3 General Exceptions

## 1194.3e Fundamental Alteration 

**Current Provision**This part shall not be construed to require a fundamental alteration in the nature of a product or its components.
- The proposed versions have been reduced from five,as reflected in the August 17th draft, to two versions.  Version 1 incorporates changes in versions 1-4 Aug 17 draft.

## 1194.3(e) Fundamental Alteration- Version 1

- This part shall not be construed to require a fundamental alteration in the nature of the E&IT, or its components, **OR THE AGENCIES SPECIFIED PRODUCT REQUIREMENTS OR BUSINESS NEED.**
**Rationale for Version 1:**
- Prior versions addressed “intended business needs” and “specified product requirements”, but were not combined. Recommendation evolved to include both.
- Clarification limits exception to the nature of the E&IT or its components and those requirements “specified by the agency” (assuming they are constructed in accordance with standard procurement procedures)
- Addition of  the phrase "of the agencies specified product requirements or business need" may be viewed as more flexible to procurement process – allows an agency to tie the exception to the business need even if the requirements are not specified up front.

## 1194.3(e) Fundamental Alteration – Version 2

- Retain current provision
- Rationale for Version 2
- Some TEITAC members and subcommittee members recommend that additional language to claify a link to agency business needs is not needed- it is implicit.

**Notes:**
Talk about some members expecting that this applied to the program and services not the product.  

## 1194.3(e) Fundamental Alteration – Recommendation

- Recommend that the TEITAC adopt Version 1 “This part shall not be construed to require a fundamental alteration in the nature of the E&IT, or its components, **OR THE AGENCIES SPECIFIED PRODUCT REQUIREMENTS OR BUSINESS NEED.”**
- Specifically to remind agencies that their implementation of Section 508 must support both the agency’s mission, as well as their responsibilities under Section 508.

## 1194.3(f) Service Areas 

**Current Provision**Products located in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment are not required to comply with this part.
- The proposed versions have been reduced from three to two. Change from August 17th draft.

## August 17 Version

- Products **DESIGNED FOR** spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment **ARE NOT** **REQUIRED TO MAKE CONTROLS OR INTERFACES THAT ARE OPERABLE SOLELY COMPLY WITH THIS PART.**
- Products located **AND OPEATIONS EXECUTED** in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment are not comply with this part.
- No Exception allowed- all products should conform

## 1194.3(f) Service Areas

**Version 1**
- Products **DESIGNED FOR** spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment **AND WHOSE CONTROLS OR INTERFACES CAN BE EXECUTED SOLELY FROM THESE SPACES** are not required to comply with this part. **THIS PART DOES APPLY TO E&IT DESIGNED FOR SPACES FREQUENTED ONLY BY SERVICE PERSONNEL, BUT WHOSE CONTROLS OR INTERFACES CAN BE EXECUTED EXTERNALLY OR REMOTELY**.
**Rationale for Version 1**
- Attempts to restrict exception to products that are designed to be located in areas frequented only by service personnel rather than covering all products by virtue of their location.
- Additional language makes it clear that being able to support the system remotely is acceptable and exception does not apply

## 1194.3(f) Service Areas

**Version 2**
- Remove the current provision.
**Rationale for Version 2**
- Some TEITAC members and subcommittee members recommend the entire exception should be deleted.
- Recommendation is based on the preference that all products should conform regardless of location and use.

## 1194.3 (New) Narrow, Delineated Use 

- Self-contained, closed products with narrow, delineated personal use (such as calculators, electronic dictionaries, and audio recorders) for which an agency can document readily available specialized products in the commercial marketplace that collectively meet the functional performance criteria (e.g. have features such as speech output available on one unit, large visual display available on another, large keys/buttons available on another, etc.) are not required to comply with this part as a whole. Agencies must however provide specialized products with appropriate access features as necessary to meet the needs of end-users with disabilities.

## 1194.3 (New) Narrow, Delineated Use

**Rationale:** Much discussion has transpired regarding the need to address the situations where conformance to the technical and performance standards results in access barriers.
- For example, requiring all calculators to have speech output, large visual display, enlarged keys, etc. actually creates access barriers depending on the functional limitations of individuals with disabilities. While some committee members are supportive of this concept others hold the position that we should not pursue this idea.
- While much discussion has taken place and ideas such as identifying products as “personal use” have been proposed there has not been a solution proposed that is understandable at face value (which is important for adoption and implementation) and no benchmarks or criteria have been proposed which can be used for decision-making as to when to apply this exception. This text is a proposal, but full consensus was not reached by the subcommittee.

## 1194.3 (New) Narrow, Delineated Use

- Options for Recommendations
- Adopt language as an exception
- Modify Small Products standards – add subject to multiple technical standards
- Refer to Access Board to consider
- Consider with FAR

## 1194.3 (New) Security - First Response

**1194.3 - NEW - Emergency, Field and First Response Use **
- This part does not apply to any electronic and information technology operated by agencies in a field environment where the function, operation, or use is by a first responder, emergency, security, or law enforcement personnel. This exception does not apply to the agency systems administrative and business applications (including payroll, finance, logistics, and personnel management applications) or any application or system that is intended for use by members of the public.

## Rationale

- Currently the national security exception directly addresses the accessibility exception for electronic and information technologies used as integral parts of weapons or weapons systems, in command-and-control, cryptological activities, and for direct support of intelligence and military missions. The underlying theme of that exception is often what might be considered emergency, or field conditions, and physical requirements as a prerequisite for employment. These same conditions are met in situations such as first responders, fire-fighters, law-enforcement personnel in the field, etc. Because of this similarity some Federal agencies such as Department of Homeland Security, Department of Justice, some portions of the Department of the Treasury, for example, encounter Section 508 acquisitions situations which mirror those in the national Security exception, but which are uncovered now. This requires that the agencies either apply fundamental alteration exception to such purchases, which is not always the most accurate fit, or conduct the market research and take accessibility requirements in to account during the process for items never to be used by people with disabilities. While Section 508 standards are intended to lower barriers to employment, they are not intended to remove all such barriers where disabilities and performing the job are in practice and reality mutually exclusive. Note, first responders in practice can be Federal employees or members of the public; however this exception is not based upon this status, rather the work to be performed and the location that work is performed.

## Impact:

- Economic impact: Low This exception will lower the analysis level of Federal requiring officials by addressing this specific situation directly, and lower their potential market analysis workload as well. It will not impact industry negatively as it is not a requirement that they must change business practices or products to meet.
*External Reference: *
- The term "first responder" refers to those individuals who in the early stages of an incident are responsible for the protection and preservation of life, property, evidence, and the environment, including emergency response providers as defined in section 2 of the Homeland Security Act of 2002 (6 U.S.C.101), as well as emergency management, public health, clinical care, public works, and other skilled support personnel (such as equipment operators) that provide immediate support services during prevention, response, and recovery operations.
- Definition of "first responder": From Homeland Security Presidential Directive 8, (HSPD8),
*Status: New: no consensus reached*
*Source: New* – Department of Homeland Security