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

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.