[Federal Register Volume 66, Number 14 (Monday, January 22, 2001)]
[Proposed Rules]
[Pages 7165-7168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1657]



[[Page 7165]]

-----------------------------------------------------------------------

Part XI





Department of Defense

General Services Administration

National Aeronautics and Space Administration





-----------------------------------------------------------------------



48 CFR Part 2, et al.



Federal Acquisition Regulation; Electronic and Information Technology 
Accessibility; Proposed Rule

Federal Register / Vol. 66 , No. 14 / Monday, January 22, 2001 / 
Proposed Rules

[[Page 7166]]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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://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

[[Page 7167]]

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

[[Page 7168]]

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]
BILLING CODE 6820-EP-P