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

E202 General Exceptions (Section-by-Section Analysis)

This section contains proposed exceptions to the general scoping provisions in proposed 201. The structure of the proposed standards reinforces the principle that, under the general scoping provision, all ICT procured, developed, maintained or used by agencies would be required to conform to the proposed requirements, unless otherwise exempted. General exceptions apply broadly and, where applicable, exempt ICT from conformance with the proposed 508 Standards. Most of the proposed general exemptions are the same as those in existing 508 Standards § 1194.3, with only minor editorial changes. A brief discussion of the proposed changes to the General Exceptions follows below.

The Board is proposing to exclude from this rule two exceptions that are contained in the existing 508 Standards: §§ 1194.3(c) and 1194.3(d). Section 1194.3(c) provides that assistive technology need not be provided at the workstations of all federal employees. However, there is no general rule in either the existing or proposed 508 Standards that requires agencies to provide assistive technology at all workstations. Instead, these standards require compatibility with assistive technology when ICT is not directly accessible. The exception in § 1194.3(c) is thus unnecessary and potentially confusing. Consequently, the Board is not retaining it in the proposed rule.

We are also proposing to exclude the exception in § 1194.3(d) of the existing 508 Standards, which provides that when agencies provide the public access to ICT, they are not required to make agency-owned ICT available to individuals with disabilities who are members of the public at non-public locations. We are proposing to remove this exception because there is nothing in the proposed 508 Standards that would require an agency to provide accessible ICT at a specific location, or that would require public access to locations not open to the public. Consequently, this exception is not needed, and its removal from the 508 Standards would have no practical impact. The Board intends to address the continuing obligation of agencies to provide accommodations under Sections 501 and 504 of the Rehabilitation Act in forthcoming guidance material to be posted on our website following publication of the final rule.

E202.1 General (Section-by-Section Analysis)

This section proposes that ICT is exempt from these requirements to the extent specified by section E202.

E202.2 National Security Systems (Section-by-Section Analysis)

This section proposes that ICT operated by agencies as part of a national security system, as defined by 40 U.S.C. 11103(a), is exempt from the requirements of this document. This is unchanged from existing 508 Standards § 1194.3(a).

E202.3 Federal Contracts (Section-by-Section Analysis)

This section proposes that ICT acquired by a contractor that is incidental to a contract would not be required to conform to this document. This proposed exception is unchanged from existing 508 Standards § 1194.3(b), and the Board’s approach is discussed in greater detail above in Section IV.E.8 (Rulemaking History – 2010 and 2011 ANPRMs: Significant Issues – Revisions to Exceptions under 508 Standards).

E202.4 Functions Located in Maintenance or Monitoring Spaces (Section-by-Section Analysis)

This section proposes to revise § 1194.3(f) of the existing 508 Standards to clarify that, where status indicators and operable parts for ICT functions are located in spaces that are only frequented by service personnel for maintenance, such items need not conform to the requirements of 508 Chapter 2. Functions of ICT located in maintenance spaces that can be controlled remotely, however, would still be required to comply with applicable standards. For example, if a server is located on a tall rack in a maintenance closet accessed only by service personnel, the controls on the server need not be accessible. However, any network or other server functions that could be accessed remotely would be required to comply with the proposed 508 Standards. We discuss our approach with respect to this exception in greater detail above in Section IV.E.8 (Rulemaking History – Major Issues Addressed in the 2010 and 2011 ANPRMs – Revisions to Exceptions under 508 Standards).

E202.5. Undue Burden or Fundamental Alteration (Section-by-Section Analysis)

This section proposes to retain the provisions in existing 508 Standards §§ 1194.3(e) and 1194.2(a)(1), but would combine them in a single provision. This section would require that agencies comply with the requirements of the 508 Standards up to the point where conformance would impose an undue burden on the agency or would result in a fundamental alteration in the nature of the ICT. Proposed subsections E202.5.1 and E202.5.2 respectively set forth criteria for undue burden determinations and establish requirements for written documentation of undue burden and fundamental alteration findings.

E202.5.1 Basis for a Determination of Undue Burden (Section-by-Section Analysis)

This section proposes to incorporate language from the definition of “undue burden” in the existing 508 Standards § 1194.4 into a separate scoping provision. It would require that, when determining whether conformance to the proposed 508 Standards would impose an undue burden on the agency, the agency must consider the extent to which conformance would impose significant difficulty or expense taking into consideration the agency resources available to the program or component for which the ICT is to be procured, developed, maintained, or used. The proposed organizational restructuring of the undue burden provision represents an editorial revision only that is not intended to have substantive impact.

E202.5.2 Required Documentation (Section-by-Section Analysis)

This section proposes to require responsible agency officials to document in writing the basis for determining that compliance with the proposed 508 Standards would either impose an undue burden or result in a fundamental alteration in the nature of the ICT. This proposed documentation requirement is derived from existing 508 Standards § 1194.2(a)(2) applicable to a determination of undue burden in the procurement context. Proposed 202.5.2 would, however, broaden this existing requirement by requiring written determinations in two new settings: (a) when an agency determines that conformance would result in a fundamental alteration in the nature of the ICT; and (b) when an agency determines that conforming to one or more provisions applicable to the development, maintenance, or use of ICT would impose an undue burden. This change is intended to ensure accountability and transparency in agencies’ Section 508 implementation efforts by treating documentation obligations equally as between procurement and non-procurement contexts.

Under Section 508, it is the responsibility of each agency to establish policies and procedures describing how they will comply with the standards, including those for making undue burden and fundamental alteration determinations. The Department of Justice’s 2012 Biennial Report on Section 508 notes that “[n]early forty percent of agency components reported establishing a formal, written policy to document Section 508 exceptions claimed on [ICT] procurements. Many of these agency components reported that their [ICT] procurements met the Section 508 requirements and that reliance on an exception was unnecessary.”⁸

The Access Board anticipates that the burdens associated with broadening the scope of the documentation requirement will be minimal. First, proposed 202.5.3 deliberately does not prescribe criteria for needed documentation to ensure a deliberative and documented decisional process without being overly prescriptive. In this way, each agency is free to develop documentation policies and practices that best suit its respective needs and resources. Such an approach is consistent with, and respectful of, Section 508’s grant of independent responsibility for Section 508 enforcement to each agency.

Second, the Board expects that invocation of the undue burden and fundamental alteration exceptions will be infrequent, which would also mean an infrequent need for written determinations. For example, in the procurement context, the DOJ 2012 Biennial Report notes that many responding agency components reported having never relied on any exception. Agency components that did make occasional use of available exceptions, assertions of undue burden or fundamental alteration were, in turn, relatively uncommon. Use of these exceptions in procurements was limited to “large” and “very large” agencies; small and mid-size agencies (i.e., agencies with 10,000 employees or less) did not report using these exceptions. For larger agencies, only about 20 percent of agency components reported using the undue burden or fundamental alteration exceptions respectively. Thus, because proposed 202.5.2 broadens only agencies’ respective obligation to document undue burden or fundamental alteration determinations, and does not change the underlying substantive criteria for these exceptions, it is expected that occasions in which agencies must document use of these exceptions will be infrequent in both procurement and non-procurement contexts.

E202.5.3 Alternative Means (Section-by-Section Analysis)

This section proposes that, when an agency determines that an undue burden or fundamental alteration exists, it must provide individuals with disabilities access to and use of information and data by an alternative means that meets identified needs. The proposed provision is taken from existing 508 Standards § 1194.2(a)(1) addressing undue burden, but adds the reference to fundamental alteration to clarify that agencies must still provide people with disabilities access to and use of information and data when either of these exceptions applies.

E202.6 Best Meets (Section-by-Section Analysis)

This section proposes that, where ICT conforming to one or more provisions of the 508 Standards is not commercially available, the agency must procure the product that best meets these standards consistent with its business needs. This section would editorially revise existing 508 Standards § 1194.2(b).

Question 12. We are requesting information on how many times a year, on average, federal agencies respectively procure ICT that “best meets” the 508 Standards.

E202.6.1 Required Documentation (Section-by-Section Analysis)

This section proposes to require that agencies document in writing the basis for determining that ICT fully conforming to applicable 508 Standards is not commercially available. Documenting the exception for commercial non-availability is not a requirement in the existing 508 Standards, though such documentation is mandated under the current federal acquisition regulations. See 48 CFR 39.203. A number of commenters to the 2010 ANPRM requested this change and supported its inclusion in the 2011 ANPRM. A documentation requirement was proposed in the 2011 ANPRM, and the Board did not receive any negative comments.

Question 13. The Board seeks information from federal agencies on the estimated number of hours, on average, they anticipate needing to prepare each written documentation of commercial unavailability determination under proposed E202.6.1.

E202.6.2 Alternative Means (Section-by-Section Analysis)

This section proposes to require agencies to provide individuals with disabilities the information and data that would have been provided by fully conforming ICT when such ICT is commercially unavailable. Proposed E202.6.2 is similar in intent to proposed E202.5.3 (Undue Burden – Alternative Means), and would reinforce the statutory requirement for agencies to ensure that individuals with disabilities have comparable access to information and data.