[Federal Register: January 22, 2001 (Volume 66, Number 14)]
[Proposed Rules]
[Page 7165-7168]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja01-56]
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Part XI
Department of Defense
General Services Administration
National Aeronautics and Space Administration
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48 CFR Part 2, et al.
Federal Acquisition Regulation; Electronic and Information Technology
Accessibility; Proposed Rule
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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
[FAR Case 1999-607]
RIN 9000-AI69
Federal Acquisition Regulation; Electronic and Information
Technology Accessibility
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to implement Subsection 408(b) of
Title IV of the Workforce Investment Act of 1998, (Pub. L. 105-220).
Subsection 408(b) 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: Interested parties should submit comments in writing on or
before March 23, 2001 to be considered in the formulation of a final
rule.
ADDRESSES: Submit written comments to: General Services Administration,
FAR Secretariat (MVR), 1800 F Street, NW, Room 4035, ATTN: Laurie
Duarte, Washington, DC 20405.
Submit electronic comments via the Internet to: farcase.1999-
607@gsa.gov
Please submit comments only and cite FAR case 1999-607 in all
correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, at (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 FAR case 1999-607.
SUPPLEMENTARY INFORMATION:
A. Background
On August 7, 1998, the President signed into law the Workforce
Investment Act of 1998, Public Law 105-220. 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 shall 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) requires the
Federal Acquisition Regulatory Council to revise the Federal
Acquisition (FAR) to incorporate the Access Board's standards up to six
months after the Access Board regulations are published. The Access
Board published the final standards in the Federal Register at 65 FR
80500, December 21, 2000.
This proposed rule implements the Access Board's regulations by--
1. Including the definition of the term ``electronic and
information technology'', a term added by the statute.
2. Incorporating the EIT Standards in acquisition planning, market
research and when describing agency needs.
3. Adding a new Subpart 39.X to implement the Access Board's rule.
Acquisitions of EIT will be required to meet the EIT accessibility
standards unless an exception applies (i.e., micro-purchase, national
security system, acquired by a contractor incidental to a contract,
located in spaces frequented only by service personnel for maintenance,
repair or occasional monitoring of equipment; or would impose an undue
burden (significant difficulty or expense)). The exemption for micro-
purchases is 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 impractical to comply with the EIT
accessibility standards unless all commercial-off-the-shelf products
incorporate the standards. 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. 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.
B. Executive Order 12866
The Access Board determined that their proposed rule that provides
the accessibility standard is an economically significant regulatory
action under E.O. 12866 with a cost over $100,000,000, and is a major
rule under 5 U.S.C. 804. An Economic Assessment was accomplished and
can be reviewed at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.access-board.gov/sec508/508index.htm. The
Councils have 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 a significant regulatory action and, therefore, 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.
B. Regulatory Flexibility Act
The changes may have 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 who
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, an Initial Regulatory Flexibility Analysis (IRFA) 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 will
affect Federal employees with disabilities as well as members of the
public with disabilities who seek to use Federal electronic and
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information technologies to access information. This increased
access reduces barriers to employment in the Federal Government for
individuals with disabilities. Failure of an agency to purchase
electronic and information technology that complies with the
standards promulgated under the Act may result in any individual
with a disability filing a complaint seeking to enforce compliance
with the standards.
This rule will apply to all contractors that manufacture, sell,
or lease electronic and information technology supplies or services.
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. Based on fiscal year 1999 information from the Federal
Procurement Data System, we estimate that there are approximately
11,000 contractors to which the rule will apply. Approximately 59
percent, or 6,500, of these contractors are small businesses.
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 IRFA to the Chief
Counsel for Advocacy of the Small Business Administration. A copy of
the IRFA may be obtained from the FAR Secretariat. The Councils will
consider comments from small entities concerning the affected FAR parts
2, 7, 10, 11, 12, and 39 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.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
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: January 16, 2001.
Al Matera,
Acting Director, Federal Acquisition Policy Division.
Therefore, DoD, GSA, and NASA propose that 48 CFR parts 2, 7, 10,
11, 12, and 39 be amended 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--DEFINITION 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
web sites, 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); 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.X).
* * * * *
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 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.X).
* * * * *
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.X).
PART 12--ACQUISITION OF COMMERICIAL ITEMS
6. Amend section 12.202 by adding a sentence to the end of
paragraph (c) to read as follows:
12.202 Market research and description of agency need.
* * * * *
(c) * * * This includes 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.X).
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.X, consisting of sections 39.X01 through 39.X04,
to read as follows:
Subpart 39.X--Electronic and Information Technology
Sec.
39.X01 Scope of subpart.
39.X02 Definition.
39.X03 Applicability.
39.X04 Exceptions.
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
39.X01 Scope of subpart.
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
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Technology (EIT) accessibility standards (36 CFR part 1194). When
acquiring EIT, agencies must ensure that--
(a) 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
(b) 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.X02 Definition.
Undue burden, as used in this subpart, means a significant
difficulty or expense.
39.X03 Applicability.
Unless an exception at 39.X04 applies, acquisitions of EIT must
meet the applicable accessibility standards at 36 CFR part 1194. When
acquiring commercial items, an agency must comply with those
accessibility standards that are available in the commercial
marketplace in time to meet the agency's delivery requirements.
39.X04 Exceptions.
The requirements in 39.X03 do not apply to EIT that--
(a) Is purchased in accordance with subpart 13.2 (micro-purchases)
prior to January 1, 2003. However, contracting officers and other
individuals designated in accordance with 1.603-3 are 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) Undue burden documentation. (i) The requiring official must
document 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 standards that are not yet available in the
commercial marketplace in time to meet the agency delivery
requirements. The requiring official must document the nonavailability
and provide the documentation to the contracting officer for inclusion
in the contract file.
[FR Doc. 01-1657 Filed 1-19-01; 8:45 am]
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