36 CFR Part 1194 Electronic and Information Technology Accessibility Standards (Section 508 Standards) - Preamble

Section 1194.4 Definitions (Preamble, Section-by-Section Analysis)

Accessible. The term accessible was defined in the proposed rule in terms of compliance with the standards in this part, as is common with other accessibility standards. As proposed, if a product complies with the standards in this part, it is "accessible"; if it does not comply, it is not accessible.

Comment. The Trace Research and Development Center (Trace Center) and the General Services Administration commented that the proposed definition of accessible would mean that products can be declared "accessible" if they are merely compatible with assistive technology and that the definition of accessible was being used as a measure of compliance. The Trace Center commented that the problem with this approach is that a product could have few or no accessibility features because it was an undue burden and still be considered accessible.

Response. Although the term accessible was used sparingly in the proposed rule, the Board agrees that the definition may be problematic. The term as used in the proposed rule was in fact addressing products which comply with the standards. Products covered by this part are required to comply with all applicable provisions of this part. Accordingly, the definition has been eliminated in the final rule and the term accessible is not used in the text of the final rule. A product is compliant with the requirements of section 508 of the Rehabilitation Act of 1973 (as amended by the Workforce Investment Act of 1998) by meeting all the applicable provisions of part 1194.

Agency. The term agency includes any Federal department or agency, including the United States Postal Service. No substantive comments were received regarding this definition and no changes have been made in the final rule.

Alternate formats. Certain product information is required to be made available in alternate formats to be usable by individuals with various disabilities. Consistent with the Board's Telecommunications Act Accessibility Guidelines (36 CFR part 1193), the proposed rule defined alternate formats as those formats which are usable by people with disabilities. The proposed definition noted that the formats may include Braille, ASCII text, large print, recorded audio, and accessible internet programming or coding languages, among others. ASCII refers to the American Standard Code for Information Interchange, which is an American National Standards Institute (ANSI) standard defining how computers read and write commonly used letters, numbers, punctuation marks, and other codes.

Comment. One commenter was concerned that the term "accessible internet programming or coding languages" used in the description of acceptable alternate formats was somewhat ambiguous and recommended using the term "accessible internet formats".

Response. The Board agrees that the term "accessible internet programming or coding languages" may be vague. In addition, as noted above, the final rule will not include the term "accessible". The definition for alternate formats has been modified to refer to "electronic formats which comply with this part". This change will permit, for instance, alternate formats to include a computer file (either on the internet or saved on a computer disk) that can be viewed by a browser and which complies with the standards for web pages. No other changes have been made to the definition in the final rule.

Alternate methods. The proposed rule used the term "alternate modes" which was defined as different means of providing information to users of products, including product documentation, such as voice, fax, relay service, TTY, internet posting, captioning, text-to-speech synthesis, and audio description.

Comment. One commenter suggested that "alternate methods" would be a better term to describe the different means of providing information. The commenter was concerned that the term alternate modes would be confused with alternate modes of operation of the product itself which does not necessarily refer to how the information is provided.

Response. The Board agrees that the term alternate methods is a more descriptive and less confusing term than the term alternate modes. Other than the change in terminology from alternate modes to alternate methods, no other changes have been made to the definition in the final rule.

Assistive technology. Assistive technology is defined as any item, piece of equipment, or system, whether acquired commercially, modified, or customized, that is commonly used to increase, maintain, or improve functional capabilities of individuals with disabilities. The definition was derived from the definition of assistive technology in the Assistive Technology Act of 1998 (29 U.S.C. 3002). The preamble to the proposed rule noted that assistive technology may include screen readers which allow persons who cannot see a visual display to either hear screen content or read the content in Braille, specialized one-handed keyboards which allow an individual to operate a computer with only one hand, and specialized audio amplifiers that allow persons with limited hearing to receive an enhanced audio signal. No substantive comments were received regarding this definition and no changes have been made in the final rule.

Electronic and information technology. This is the statutory term for the products covered by the standards in this part. The statute explicitly required the Board to define this term, and required the definition to be consistent with the definition of information technology in the Clinger-Cohen Act of 1996. The Board's proposed definition of information technology was identical to that in the Clinger-Cohen Act. Electronic and information technology was defined in the proposed rule to include information technology, as well as any equipment or interconnected system or subsystem of equipment, that is used in the creation, conversion, or duplication of data or information.

Information technology includes computers, ancillary equipment, software, firmware and similar procedures, services (including support services), and related resources. Electronic and information technology includes information technology products like those listed above as well as telecommunications products (such as telephones), information kiosks and transaction machines, World Wide Web sites, multimedia, and office equipment such as copiers, and fax machines.

Consistent with the FAR,⁴ the Board proposed that electronic and information technology not include any equipment that contains embedded information technology that is used as an integral part of the product, but the principal function of which is not the acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information. For example, HVAC (heating, ventilation, and air conditioning) equipment such as thermostats or temperature control devices, and medical equipment where information technology is integral to its operation, are not information technology.

Comment. Several commenters recommended that the exception for HVAC control devices and medical equipment be revised in the final rule. The commenters were concerned that the exception was too broad in that it exempted equipment such as medical diagnostic equipment that they felt should be covered by the rule. In addition, the National Association of the Deaf (NAD) requested that public address systems, alarm systems, and two-way communications systems such as intercoms be expressly included as electronic and information technology.

Response. The exemption is consistent with existing definitions for information technology in the FAR. Public address systems, alarm systems, and two-way communications systems are already addressed by the Americans with Disabilities Act Accessibility Guidelines and will be addressed in more detail in the Board's guidelines under the Architectural Barriers Act which apply to Federal facilities. No changes have been made to the definition in the final rule.

⁴ 48 CFR Chapter 1, part 2, §2.101 Definitions Information Technology (c).

Information technology. The definition of information technology is identical to that in the Clinger-Cohen Act, that is, any equipment or interconnected system or subsystem of equipment, that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information. Information technology includes computers, ancillary equipment, software, firmware and similar procedures, services (including support services), and related resources. No substantive comments were received regarding this definition and no changes have been made in the final rule.

Operable controls. The proposed rule defined operable controls as those components of a product that require physical contact for normal operation of the device. Examples of operable controls were provided, including on/off switches, buttons, dials and knobs, mice, keypads and other input devices, copier paper trays (both for inserting paper to be copied and retrieving finished copies), coin and card slots, card readers, and similar components. The proposed rule also clarified that operable controls do not include voice-operated controls.

Comment. One commenter was concerned that the term paper trays was confusing and interpreted it to mean the large trays on a copier which are loaded with reams of paper for copying. The commenter suggested that the term input and output trays be used instead.

Response. The Board agrees that input and output trays are more descriptive. The final rule reflects this change which is intended to apply to products in their normal operation rather than when the product may be used for maintenance, repair, or occasional monitoring. For example, a user should be able to add paper to a desktop laser printer. No other changes have been made to this definition.

Product. The term product is used in the rule as a shorthand for electronic and information technology. No substantive comments were received regarding this definition and no changes have been made in the final rule.

Self contained, closed products. This term was not used in the proposed rule and is provided in the final rule as a result of the reorganization of the standards. Self contained, closed products, are those that generally have embedded software and are commonly designed in such a fashion that a user cannot easily attach or install assistive technology. These products include, but are not limited to, information kiosks and information transaction machines, copiers, printers, calculators, fax machines, and other similar types of products.

Telecommunications. The definition for telecommunications is consistent with the definition in the Board's Telecommunications Act Accessibility Guidelines and the definition of telecommunications in the Telecommunications Act. No substantive comments were received regarding this definition and no changes have been made in the final rule.

TTY. TTYs are machinery or equipment that employ interactive text based communications through the transmission of coded signals across the telephone network.

Comment. The Trace Center recommended adding the word "baudot" to the definition of TTY to clarify that the term is not meant to be broader than baudot TTYs. The NAD and other consumer groups, however, supported the Board's definition and encouraged the Board to use the same definition consistently.

Response. The definition for the term TTY is consistent with the definition of TTY in the Board's ADA Accessibility Guidelines and Telecommunications Act Accessibility Guidelines. No changes have been made to the definition in the final rule.

Undue burden. The final rule defines the term undue burden as "significant difficulty or expense." In determining what is a significant difficulty or expense, each agency must consider the resources available to the program or component for which the product is being developed, maintained, used or procured. The proposed rule defined undue burden as an action that would result in significant difficulty or expense considering all agency resources available to the agency or component. The Board sought comment in the NPRM on two additional factors (identified as factor (2) and factor (3) in the preamble) for agencies to consider in assessing a determination of an undue burden. Factor (2) addressed the compatibility of an accessible product with the agency's or component's infrastructure, including security, and the difficulty of integrating the accessible product. Factor (3) concerned the functionality needed from the product and the technical difficulty involved in making the product accessible.

Comment. The ITAA, ITIC and the Oracle Corporation opposed the inclusion of a definition for undue burden in the final rule. Both the ITAA and the ITIC commented that defining undue burden was beyond the Board's authority. Oracle suggested that the concept of undue burden under section 508 was beyond the Board's expertise in that it was a procurement matter. The commenters were also concerned that the Board's definition was too narrow. Alternatively, if the Board was to adopt a definition for undue burden, the ITAA favored adoption of the factors associated with undue burden and undue hardship in the ADA and section 504 of the Rehabilitation Act. In particular, the ITAA recommended adoption of the "nature and cost" of the accommodation as a factor for consideration. ITIC favored adoption of the employment factors in title I of the ADA if the Board were to include a definition of undue burden. Both the ITAA and the ITIC also favored the adoption of factors (2) and (3) identified in the NPRM if undue burden was to be addressed in the final rule.

The remainder and majority of the commenters did not address the issue of whether the Board should adopt a definition of undue burden, but rather how to define it. At least two Federal agencies and 10 organizations representing persons with disabilities opposed the inclusion of factors (2) and (3) suggested in the NPRM. The Department of Commerce and a majority of advocacy organizations representing people with disabilities opposed factors (2) and (3) on the grounds that the factors would create a loophole for agencies to avoid compliance with section 508. The Department of Veterans Affairs opposed factor (3) as it considered that factor to be more about job assignment than undue burden. Several commenters including Sun Microsystems and Adobe Systems favored adopting factors (2) and (3) in the definition of undue burden. The Social Security Administration (SSA) and the Department of Health and Human Services, Administration for Children and Families, sought guidance as to the amount of increased cost of a product that would not constitute undue burden regardless of an agency's overall budget. Citing the example of a product that would cost 25 percent more to comply with the standards, the SSA questioned whether that would be undue or would 10 percent or 50 percent be considered undue. The General Services Administration recommended basing the financial resources available to an agency on a program basis.

Response. The term undue burden is based on caselaw interpreting section 504 of the Rehabilitation Act (Southeastern Community College v. Davis, 442 U.S. 397 (1979)), and has been included in agency regulations issued under section 504 since the Davis case. See, e.g., 28 CFR 39.150. The term undue burden is also used in Title III of the ADA, 42 U.S.C. 12182 (b)(2)(A)(iii). The legislative history of the ADA states that the term undue burden is derived from section 504 and the regulations thereunder, and is analogous to the term "undue hardship" in Title I of the ADA, which Congress defined as "an action requiring significant difficulty or expense." 42 U.S.C. 12111(10)(A). See, H. Rept. 101-485, pt. 2, at 106. In the NPRM, the Board proposed adoption of "significant difficulty or expense" as the definition for undue burden. No changes were made to that aspect of the definition in the final rule.

Title I of the ADA lists factors to be considered in determining whether a particular action would result in an undue hardship. 42 U.S.C. 12111(10)(B)(i)-(iv). However, since title I of the ADA addresses employment and the individual accommodation of employees, not all of the factors are directly applicable to section 508 except for the financial resources of the covered facility or entity which is necessary to a determination of "significant difficulty or expense." Unlike title I, section 508 requires that agencies must procure accessible electronic and information technology regardless of whether they have employees with disabilities. Requiring agencies to purchase accessible products at the outset eliminates the need for expensive retrofitting of an existing product when requested by an employee or member of the public as a reasonable accommodation at a later time.

In determining whether a particular action is an undue burden under section 508, the proposed rule provided that the resources "available" to an "agency or component" for which the product is being developed, procured, maintained, or used is an appropriate factor to consider. The language was derived from the section 504 federally conducted regulations. Those regulations limited the consideration of resources to those resources available to a "program". The preamble to the proposed rule noted that an agency's entire budget may not be available for purposes of complying with section 508. Many parts of agency budgets are authorized for specific purposes and are thus not available to other programs or components within the agency. The definition of undue burden has been clarified in the final rule to more clearly reflect this limitation. The provision now states that "agency resources available to a program or component" are to be considered in determining whether an action is an undue burden. Because available financial resources vary greatly from one agency to another, what constitutes an undue burden for a smaller agency may not be an undue burden for another, larger agency having more resources to commit to a particular procurement. Each procurement would necessarily be determined on a case-by-case basis. Because a determination of whether an action would constitute an undue burden is made on a case-by-case basis, it would be inappropriate for the Board to assess a set percentage for the increased cost of a product that would be considered an undue burden in every case.

The Board has not included factors (2) and (3) in the text of the final rule. While the Board acknowledges that these may be appropriate factors for consideration by an agency in determining whether an action is an undue burden, factors (2) and (3) were not based on established caselaw or existing regulations under section 504. Further, the Board recognizes that undue burden is determined on a case-by-case basis and that factors (2) and (3) may not apply in every determination. Agencies are not required to consider these factors and may consider other appropriate factors in their undue burden analyses.

Comment. Adobe Systems questioned whether a product which does not meet a provision based on a finding of undue burden, has to comply with the remaining provisions.

Response. The undue burden analysis is applied on a provision by provision basis. A separate undue burden analysis must be conducted and, in the case of procurements, be documented for each applicable provision.