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

SUPPLEMENTARY INFORMATION:

Availability of Copies and Electronic Access

Single copies of this publication may be obtained at no cost by calling the Access Board's automated publications order line (202) 272-5434, by pressing 2 on the telephone keypad, then 1, and requesting publication S-40 (Electronic and Information Technology Accessibility Standards Final Rule). Persons using a TTY should call (202) 272-5449. Please record a name, address, telephone number and request publication S-40. This document is available in alternate formats upon request. Persons who want a copy in an alternate format should specify the type of format (cassette tape, Braille, large print, or computer disk). This document is also available on the Board's Internet site (http://www.access-board.gov/sec508/standards.htm).

Background

On August 7, 1998, the President signed into law the Workforce Investment Act of 1998, which includes the Rehabilitation Act Amendments of 1998. Section 508 of the Rehabilitation Act Amendments, as amended by the Workforce Investment Act of 1998, requires that when Federal agencies develop, procure, maintain, or use electronic and information technology, they shall ensure that the electronic and information technology allows Federal employees with disabilities to have access to and use of information and data that is comparable to the access to and use of information and data by Federal employees who are not individuals with disabilities, unless an undue burden would be imposed on the agency.¹ Section 508 also requires that individuals with disabilities, who are members of the public seeking information or services from a Federal agency, have access to and use of information and data that is comparable to that provided to the public who are not individuals with disabilities.

Section 508(a)(2)(A) requires the Architectural and Transportation Barriers Compliance Board (Access Board)² to publish standards setting forth a definition of electronic and information technology and the technical and functional performance criteria necessary for accessibility for such technology. If an agency determines that meeting the standards, when procuring electronic and information technology, imposes an undue burden, it must explain why meeting the standards creates an undue burden.

On March 31, 2000, the Access Board issued a notice of proposed rulemaking (NPRM) in the Federal Register (65 FR 17346) proposing standards for accessible electronic and information technology. The proposed standards were based on recommendations of the Electronic and Information Technology Access Advisory Committee (EITAAC). The EITAAC was convened by the Access Board in September 1998 to assist the Board in fulfilling its mandate under section 508. It was composed of 27 members including representatives of the electronic and information technology industry, organizations representing the access needs of individuals with disabilities, and other persons affected by accessibility standards for electronic and information technology. Representatives of Federal agencies, including the departments of Commerce, Defense, Education, Justice, Veterans Affairs, the Federal Communications Commission, and the General Services Administration, served as ex-officio members or observers of the EITAAC.

The public comment period for the proposed rule ended on May 30, 2000. Over 100 individuals and organizations submitted comments on the proposed standards. Comments were submitted by Federal agencies, representatives of the information technology industry, disability groups, and persons with disabilities. Approximately 35 percent of the comments came from Federal agencies. Fifteen percent came from individual companies and industry trade associations. Approximately 30 percent of the comments were from individuals with disabilities and organizations representing persons with disabilities. Eight states responded to the proposed rule and the remaining comments were from educational or research organizations.

The proposed standards covered various products, including computers, software, and electronic office equipment in the Federal sector. They provided technical criteria specific to various types of technologies and performance-based requirements, which focus on the functional capabilities of covered technologies. Specific criteria covered controls, keyboards, and keypads; software applications and operating systems (non-embedded); web-based information or applications; telecommunications functions; video or multi-media products; and information kiosks and transaction machines. Also covered was compatibility with adaptive equipment that people with disabilities commonly use for information and communication access.

¹ Section 508 does not apply to national security systems, as that term is defined in section 5142 of the Clinger-Cohen Act of 1996 (40 U.S.C. 1452).

² The Access Board is an independent Federal agency established by section 502 of the Rehabilitation Act (29 U.S.C. 792) whose primary mission is to promote accessibility for individuals with disabilities. The Access Board consists of 25 members. Thirteen are appointed by the President from among the public, a majority of who are required to be individuals with disabilities. The other twelve are heads of the following Federal agencies or their designees whose positions are Executive Level IV or above: The departments of Health and Human Services, Education, Transportation, Housing and Urban Development, Labor, Interior, Defense, Justice, Veterans Affairs, and Commerce; the General Services Administration; and the United States Postal Service.

General Issues

This section of the preamble addresses general issues raised by comments filed in response to the NPRM. Individual provisions of the rule are discussed in detail under the Section-by-Section Analysis below.

Effective Date for the Enforcement of Section 508

Section 508(a)(2)(A) required the Board to publish final standards for accessible electronic and information technology by February 7, 2000. Section 508(a)(3) provides that within six months after the Board publishes its standards, the Federal Acquisition Regulatory Council is required to revise the Federal Acquisition Regulation (FAR), and each Federal agency is required to revise the Federal procurement policies and directives under its control to incorporate the Board's standards.³

Because of the delay in publishing the standards, the proposed rule sought comment on making the standards effective six months after publication in the Federal Register to provide Federal agencies an opportunity to more fully understand the new standards and allow manufacturers of electronic and information technology time to ensure that their products comply with the standards before enforcement actions could be initiated. The NPRM noted that postponing the effective date of the Board's standards could not affect the right of individuals with disabilities to file complaints for electronic and information technology procured after August 7, 2000 since that right was established by the statute.

Comment. There was a general consensus that a delay in the effective date of the standards was warranted to provide a reasonable period of time for industry to bring their products into compliance with the Board's standards.

Response. On July 13, 2000, President Clinton signed into law the Military Construction Appropriations Act for Fiscal Year 2001 (Public Law 106-246) which included an amendment to section 508 of the Rehabilitation Act. Under the amendment, the effective date for the enforcement of section 508 was delayed to allow for additional time for compliance with the Board's final standards. As originally written, the enforcement provisions of section 508 would have taken effect on August 7, 2000. The amendment in Public Law 106-246 revises the enforcement date to 6 months from publication of the Board's final standards, consistent with the law's intent. As a result of the amendment, there is no need to delay the effective date of the standards. The effective date for the standards is largely an administrative provision and does not affect the date by which complaints may be filed under section 508. Complaints and lawsuits may be filed 6 months from the date of publication of these standards in the Federal Register.

Technical and Functional Performance Criteria

Section 508 (a)(2)(A)(ii) requires the Board to develop technical and functional performance criteria necessary to implement the requirements of section 508.

Comment. The Information Technology Association of America (ITAA) commented that the specificity of many of the proposed provisions go beyond what may be characterized as technical and functional performance criteria. ITAA commented that the statute intended that the standards be set forth in terms of technical and functional performance criteria as opposed to technical design requirements. Performance criteria are intended to give discretion in achieving the required end result. ITAA commented that product developers, who have a broad understanding of their own products, industry standards, and future trends need this discretion to meet the requirements of section 508 and that it is impossible to predict accurately future technological advances. Design requirements, they added, inhibit development and innovation. ITAA was concerned that many of the proposed provisions would impede technological advancements because they were too specific. On the other hand, ITAA supported proposed §1194.5, Equivalent Facilitation, because it would lessen the adverse impact of the specific requirements.

Response. According to administration policy, performance standards are generally to be preferred to engineering or design standards because performance standards provide the regulated parties the flexibility to achieve the regulatory objective in a more cost-effective way. The Board was given the responsibility to develop technical and functional performance criteria necessary to implement the requirements of section 508. Thus, the standards provide technical requirements as well as functional performance criteria. The standards reflect the need to be as descriptive as possible because procurement officials and others need to know when compliance with section 508 has been achieved and because the failure to meet the standards can result in an enforcement action. Several provisions, such as those regarding time-out features, have been revised in the final rule to be more performance oriented rather than specific design standards.

³ Whenever the Access Board revises its standards, the Federal Acquisition Regulatory Council is required to revise the FAR, and each appropriate Federal agency is required to revise its procurement policies and directives within six months to incorporate the revisions.