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

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.