[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]
[DOCID:fr25ap01-10]
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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
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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--
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
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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://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 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://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.
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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://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