36 CFR Part 1194 - Proposed Information and Communication Technology (ICT) Standards and Guidelines NPRM - Preamble

1. Application of Functional Performance Criteria: 508 Standards

Section 1194.31 of the existing 508 Standards, which sets forth six specific functional performance criteria, does not specify when federal agencies and other covered entities should or must apply these criteria. As described in the preamble to the final rule for the existing standards:

This section [1194.31] provides functional performance criteria for overall product evaluation and for technologies or components for which there is no specific requirement under other sections. These criteria are also intended to ensure that the individual accessible components work together to create an accessible product. (65 FR 80519 (Dec. 21, 2000))

Over the ensuing years, some have raised questions about application of the functional performance criteria in the existing 508 Standards. The General Services Administration’s IT Accessibility and Workforce (GSA/ITAW)—which is the federal government’s principal coordinator for Section 508 implementation—provides the following information in a “Q &A” format concerning application of the functional performance criteria:

How should an agency proceed in identifying “applicable" technical provisions in Subparts B [technical provisions], C [functional performance criteria], and D [information, documentation, and support] of the Access Board’s standards to ensure acquired products provide comparable access?

Agencies should first look to the provisions in Subpart B [technical provisions] to determine if there are specific technical provisions that apply to the [ICT] need they are seeking to satisfy.

If there are applicable provisions in Subpart B [technical provisions] that fully address the product or service being procured, then the agency need not look to Subpart C [functional performance criteria]. Acquired products that meet the specific technical provisions set forth in Subpart B [technical provisions] will also meet the broader functional performance criteria in Subpart C [functional performance criteria].

If an agency’s procurement needs are not fully addressed by Subpart B [technical provisions], then the agency must look to Subpart C [functional performance criteria] for applicable functional performance requirements.⁵

The GSA/ITAW’s Q&A document also suggests that the functional performance criteria in the existing 508 Standards be used to evaluate ICT products for equivalent facilitation. Id.

As recounted previously, the Board’s approach to specifying requirements for application of the functional performance criteria has evolved over the course of this rulemaking. The Advisory Committee recommended that the Board clarify the relationship between the functional performance criteria and the technical provisions in the 508 Standards, but did not reach consensus on how to address this issue. In the 2010 ANPRM, the Board proposed to use the approach suggested in the GSA/ITAW’s Q&A document—namely, that agencies first look to the technical provisions in the 508 Standards to determine whether there were specific provisions that applied to the ICT being procured. If there were technical provisions that fully addressed the ICT being procured, then the agency would not need to apply the functional performance criteria. Application of the functional performance criteria would thus only be required under the following two circumstances: when the agency’s procurement needs were not fully addressed by technical provisions in the 508 Standards, or when evaluating ICT for equivalent facilitation. This proposal was intended to reflect current agency practice.

Concerns expressed by commenters led the Board to propose redefining the relationship between the functional performance criteria and the technical provisions in the 508 Standards. In the 2011 ANPRM, the Board proposed that ICT would be required to conform to the functional performance criteria, even when the technical provisions were met. This proposal, too, received mixed reviews from commenters. While some commenters supported this approach, industry groups objected to it as unworkable. They viewed the functional performance criteria as overly subjective and not subject to objective testing. As one commenter from the IT industry noted: “[A] supplier cannot guarantee that the functional performance criteria have been met unless the supplier controls all the components of the end-to-end solution.”

In this NPRM, the Board heeds the concerns of industry groups and effectively returns to our original proposal whereby the functional performance criteria in the 508 Standards apply only in two specific circumstances—when there are “gaps” in the technical requirements and when evaluating equivalent facilitation. Specifically, agencies would be required to apply the functional criteria as follows. First, where the proposed requirements in Chapter 4 for hardware and Chapter 5 for software do not address one or more of the features of ICT, sections E204.1 and C202.1 would require the features that are not addressed in those chapters to conform to the functional performance criteria in Chapter 3. This is consistent with the GSA/ITAW’s recommended approach under the existing 508 Standards. It is also consistent with §§ 1193.21 and 1193.41 of the existing 255 Guidelines. Second, section E101.2 proposes to require the functional performance criteria to be used when evaluating ICT for equivalent facilitation. This is consistent with the GSA/ITAW’s recommended approach under the existing 508 Standards.

With respect to the 255 Guidelines, neither the Advisory Committee (in its TEITAC Report) nor the Board (in the 2010 and 2011 ANPRMs) previously proposed any changes to the manner in which telecommunications equipment manufacturers must apply the functional performance criteria. Likewise, the Board proposes no changes in this NPRM. See Section VI.D (Section-by-Section Analysis – Functional Performance Criteria and Technical Requirements - C201.3 and C202).