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Barry McVay's FEDERAL CONTRACTS DISPATCH

DATE: December 21, 2000

FROM: Barry McVay, CPCM

SUBJECT: Architectural and Transportation Barriers Compliance Board; Electronic and Information Technology Accessibility Standards

SOURCE: Federal Register, December 21, 2000, Vol. 65, No. 246, page 80499

AGENCIES: Architectural and Transportation Barriers Compliance Board

ACTION: Final Rule

SYNOPSIS: The Architectural and Transportation Barriers Compliance Board ("Board") is issuing final accessibility standards for electronic and information technology as required by Section 508 of the Rehabilitation Act Amendments of 1998. Section 508 requires federal agencies to develop, procure, maintain, and use electronic and information technology that allows federal employees and members of the public with disabilities to have access to information and data that is comparable to the access to information and data by those who are not individuals with disabilities, unless it would be an undue burden on the agency.

EDITOR'S NOTE: Section 508 requires that the Federal Acquisition Regulation (FAR) be revised within six months after the Board publishes its standards (that is, June 21, 2001), and that each agency revise its procurement policies and directives to incorporate the Board's standards.

EFFECTIVE DATE: February 20, 2001.

FOR MORE INFORMATION CONTACT: Doug Wakefield, Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street, NW, Suite 1000, Washington, DC 20004-1111; 202-272-5434, extension 139 (voice); 202-272-5449 (TTY); e-mail: wakefield@access-board.gov.

SUPPLEMENTAL INFORMATION: On August 7, 1998, President Clinton signed the Workforce Investment Act of 1998, which included the Rehabilitation Act Amendments of 1998. The accessibility standards required by Section 508 were to have been published by February 7, 2000, and were to go into effect August 7, 2000, giving individuals with disabilities the right to file complaints against agencies that procured noncompliant electronic and information technology after August 7, 2000 (the "two years after enactment" effective date for enforcement of the required accessibility standards was specified in Section 508). However, delays in the publication of the standards would have given individuals with disabilities the right to file complaints for noncompliance with standards that had not yet been finalized. This anomalous situation was remedied with the enactment of the Military Construction Appropriations Act for Fiscal Year 2001 on July 13, 2000, (Public Law 106-246), which included an amendment to Section 508 which postponed the effective date of Section 508 enforcement until six months after publication of the final standards. Since the final standards are published today, the Section 508 enforcement takes effect June 21, 2001.

On March 31, 2000, the Board 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. Over 100 individuals and organizations submitted comments on the proposed standards, including federal agencies, members of the information technology industry, disability groups, and persons with disabilities. Based on their comments, the Board has developed and published the accessibility standards required by Section 508 as Title 36 of the Code of Federal Regulations (CFR), Part 1194, Electronic and Information Technology Accessibility Standards.

The standards are in Part 1194, Subpart B:

      Section 1194.21, Software Applications and Operating Systems
      Section 1194.22, Web-based Intranet and Internet Information and Applications
      Section 1194.23, Telecommunications Products
      Section 1194.24, Video and Multimedia Products
      Section 1194.25, Self Contained, Closed Products
      Section 1194.26, Desktop and Portable Computers

The following are some of the key provisions in other sections of 36 CFR Part 1194:

• Section 1194.2, Application, states that "when developing, procuring, maintaining, or using electronic and information technology, each agency shall ensure that the products comply with the applicable provisions of this part, unless an undue burden would be imposed on the agency." The section goes on to require the agency to document the reasons compliance imposes an undue burden, and "when compliance with the provisions of this part imposes an undue burden, agencies shall provide individuals with disabilities with the information and data involved by an alternative means of access that allows the individual to use the information and data."
  
  The section requires compliance "with the provisions in this part when such products are available in the commercial marketplace or when such products are developed in response to a government solicitation. Agencies cannot claim a product as a whole is not commercially available because no product in the marketplace meets all the standards. If products are commercially available that meet some but not all of the standards, the agency must procure the product that best meets the standards." Furthermore, "this part applies to electronic and information technology developed, procured, maintained, or used by agencies directly or used by a contractor under a contract with an agency which requires the use of such product, or requires the use, to a significant extent, of such product in the performance of a service or the furnishing of a product."
  
  
• Section 1194.3, General Exceptions, exempts from coverage "any electronic and information technology operated by agencies, the function, operation, or use of which involves intelligence activities, cryptologic activities related to national security, command and control of military forces, equipment that is an integral part of a weapon or weapons system, or systems which are critical to the direct fulfillment of military or intelligence missions. Systems which are critical to the direct fulfillment of military or intelligence missions do not include a system that is to be used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications)." It also exempts "electronic and information technology that is acquired by a contractor incidental to a contract." It does not require "the installation of accessibility-related software or the attachment of an assistive technology device at a workstation of a federal employee who is not an individual with a disability," nor does it require compliance by "products located in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment..."

  EDITOR'S NOTE: While these standards apply only to the federal government, it is unlikely that manufacturers will produce compliant equipment and software for the government and non-compliant equipment and software for everyone else. Some are warning of higher prices and delayed product development. On June 21, 2001, we will have a better idea on how difficult it is for manufacturers to comply with the standards.

  FOR FURTHER INFORMATION CONTACT: Barry McVay at 703-451-5953 or by e-mail to BarryMcVay@FedGovContracts.com.

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