[Federal Register Volume 66, Number 80 (Wednesday, April 25, 2001)]
[Rules and Regulations]
[Pages 20894-20897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-10408]



[[Page 20893]]

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

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

[[Page 20894]]


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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.

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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--
    <bullet> Including the definition of the term ``electronic and 
information technology,'' a term created by the statute;
    <bullet> Incorporating the EIT Standards in acquisition planning, 
market research, and when describing agency needs; and
    <bullet> 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--
    <bullet> Taking delivery for items ordered prior to the effective 
date of this rule;
    <bullet> Within-scope modifications of contracts awarded before the 
effective date of this rule;
    <bullet> Exercising unilateral options for contracts awarded before 
the effective date of this rule; or
    <bullet> 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--
    <bullet> 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;
    <bullet> EIT for a national security system;
    <bullet> EIT acquired by a contractor incidental to a contract;
    <bullet> EIT located in spaces frequented only by service personnel 
for maintenance, repair or occasional monitoring of equipment; and
    <bullet> 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

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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.

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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 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 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

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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 
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