20894 Federal Register / Vol. 66, No. 80 / Wednesday, April 25, 2001 / Rules and Regulations

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), multiagency contracts (MACs), and other

interagency acquisitions. Exception

determinations are not required for

award of the underlying indefinitequantity 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

Federal Register / Vol. 66, No. 80 / Wednesday, April 25, 2001 / Rules and Regulations 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, 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

EITAccessibility 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.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.

20896 Federal Register / Vol. 66, No. 80 / Wednesday, April 25, 2001 / Rules and Regulations

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 FlexibilityAnalysis (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 underemployed. 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

BusinessAdministration. 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

Federal Register / Vol. 66, No. 80 / Wednesday, April 25, 2001 / Rules and Regulations 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.

(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 indefinitequantity 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 micropurchases, 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