Department of Health and Human
Services
HHS Policy for Section 508 Electronic and Information
Technology (EIT)
January 2005
TABLE OF CONTENTS
1.0 PURPOSE
2.0 BACKGROUND
2.1 Summary
of Section 508 Requirements
2.2
Federal Accessibility Requirements
2.3
Other Applicable Federal Regulations and Guidance
2.4
Computer/Electronic Accommodations Program (CAP)
3.0 SCOPE
4.0 POLICY
4.1 Implementation
4.2
Exceptions Approval for Exceptions Approval
4.2.1
Oversight Responsibility for Exceptions Approval
4.2.2
Approval Granted According to Operating Division/Office
of the Secretary Implementation Plan
4.3 Section
508 Compliance Exceptions
4.3.1
Commercial Nonavailability Exception Determination
and Certification
4.3.2
Undue Burden Exception Determination and Certification
4.3.3
General EIT Procurement Exceptions
4.3.4
General Section 508 Exceptions
4.3.5 FAR Contract
Exceptions
4.4 HHS Accessibility
Intent
5.0 ROLES
AND RESPONSIBILITIES
5.1
Director of the Office on Disability (OD)
5.2
Assistant Secretary for Budget, Technology, and Finance
(ASBTF)
5.3
Assistant Secretary for Administration and Management
(ASAM)
5.4
Deputy Assistant Secretary for Information Resources
Management (DASIRM), ASBTF
5.5
Deputy Assistant Secretary for Human Resources (DASHR),
ASAM
5.6
Director of the Office for Civil Rights (OCR)
5.7
Director of the Equal Employment Opportunity Program
Group (EEOPG)
5.8 HHS Section
508 Coordinator
5.9 HHS
Section 508 Program Team (508 PT)
5.10 Operating
Division Head
5.11 Office
of the Secretary Head
5.12
Operating Division and Office of the Secretary Section
508 Official
5.13
Operating Division and Office of the Secretary Authorizing
Officials
5.14
Operating Division and Office of the Secretary Requesting
Officials
6.0 APPLICABLE
LAWS/GUIDANCE
7.0 INFORMATION
AND ASSISTANCE
8.0
EFFECTIVE DATE/IMPLEMENTATION
9.0 APPROVED
10.0 GLOSSARY
11.0 APPENDIX A
11.1 Section
508 Compliance Reference
11.2
Commercial Nonavailability Exception
11.3 Undue Burden
Exception
11.4
General EIT Procurement Exceptions
11.5 General
Section 508 Exceptions
11.6 FAR Contract
Exceptions
12.0 APPENDIX B
12.1
Access Board Final Rule (36 CFR Part 1194)
12.1.1
Subpart B -- Technical Standards
12.1.2
Subpart C -- Functional Performance Criteria
12.1.3
Subpart D -- Information, Documentation, and Support
1.0 Purpose
This document establishes policies and responsibilities
for implementing Section 508 of the Rehabilitation Act
of 1973, as amended, throughout the United States Department
of Health and Human Services (HHS).
2.0
Background
In 1986, Congress added Section 508 to the Rehabilitation
Act of 1973. Section 508 established non-binding guidelines
for Information Technology (IT) accessibility. On August
7, 1998, the President signed into law the Workforce
Investment Act of 1998 (P. L. 105-220), which included
the Rehabilitation Act Amendments of 1998. These amendments
significantly expanded and strengthened the IT accessibility
requirements in Section 508 and made them binding on
Federal agencies.
In the December 21, 2000, Federal Register, the Architectural
and Transportation Barriers Compliance Board (Access
Board) published the Electronic and Information Technology
(EIT) Accessibility Standards; Final Rule (36 CFR Part
1194). These standards became effective on June 21, 2001.
In the April 25, 2001, Federal Register, the Civilian
Agency Acquisition Council and the Defense Acquisition
Regulations Council (Councils) published a Final Rule
amending the Federal Acquisitions Regulations (FAR),
Electronic and Information Technology Accessibility (48
CFR, Chapter 1, Parts 2, 7, 10, 11, 12, and 39). These
regulations became effective on June 25, 2001.
2.1
Summary of Section 508 Requirements
Section 508 requires that, when Federal agencies develop,
procure, maintain, or use EIT, (1) individuals with disabilities
who are Federal employees have access to and use of information
and data that is comparable to the access to and use
of the information and data by Federal employees who
are not individuals with disabilities; and (2) individuals
with disabilities who are members of the public seeking
information or services from a Federal department or
agency to have access to and use of information and data
that is comparable to the access to and use of the information
and data by such members of the public who are not individuals
with disabilities (FAR 39.201 and 36 CFR 1194.1). Comparable
access is not required if it would impose an undue burden
on the agency.
Procurement awards made on or after June 25, 2001, are
subject to the Section 508 FAR Final Rule. In addition,
software applications and operating systems; Web-based
information, systems or applications (Internet, Intranet
or Extranet); telecommunications products; video and
multimedia products; self contained, closed products;
and desktop and portable computers developed, procured,
or used on or after June 21, 2001, must be Section 508
compliant.
The Section 508 requirements do not apply retroactively
to EIT existing prior to June 21, 2001, as it relates
to enforcement. Specifically, the Access Board's Electronic
and Information Technology Accessibility Standards: Economic
Assessment states that:
The standards are to be applied prospectively and do
not require Federal agencies to retrofit existing Electronic
and Information Technology. As agencies upgrade and change
their Electronic and Information Technology, they must
comply with the standards (FAR Final Rule, Chapter 2.1
Final Standards).
In addition to the Access Board EIT Accessibility Standards
Subpart B Technical Standards (Appendix B) the Functional
Performance Criteria requirements that are listed in
Subpart C (Appendix B), state that at least one mode
of operation and information retrieval that does not
require user vision, hearing, speech, or fine motor control
shall be provided, or support for assistive technology
used by people with disabilities shall be provided.
The Access Board EIT Accessibility Standards Subpart
D (Appendix B) Information, Documentation and Support,
requires that (a) product support documentation provided
to end-users shall be made available in alternate formats
upon request, at no additional charge, (b) end-users
shall have access to a description of the accessibility
and compatibility features of products in alternate formats
or alternate methods upon request, at no additional charge,
and (c) support services for products shall accommodate
the communication needs of end-users with disabilities.
In his August 30, 2001, memorandum to all HHS employees
on accessibility to Federal EIT, the Secretary stated:
Every HHS employee has a collective responsibility for
compliance with Section 508’s mandate to make our information
accessible to individuals with disabilities. This means
that HHS employees must take proactive actions to ensure
that all Electronic and Information Technology … and
all new or revised information made available on the
Internet and the Intranet meet the new accessibility
standards.
The requirements imposed on Federal agencies under Section
508 are not altogether new. Section 508 strengthens an
existing obligation imposed on Federal agencies under
Section 504 of the Rehabilitation Act. Section 504 requires
Federal agencies to take appropriate steps to communicate
effectively with applicants, participants, and members
of the public to ensure that individuals with disabilities
are able to obtain information as to the existence and
location of services, activities, and facilities (45
CFR § 85.51).
Under both Section 508 and Section 504, Federal agencies
are not required to take any action that they can demonstrate
would result in an “undue burden.” Undue burden is defined
as significant difficulty or expense and is based on
case law interpreting Section 504. In the context of
Section 508, in determining what is significant difficulty
or expense of compliance, each agency must consider all
agency resources available to its program or component
for which the product or service is being developed,
maintained, used or procured. Undue burden determinations
are made on a case-by-case basis. Under both Section
504 and Section 508, if a particular action would impose
an undue burden, an agency still has an obligation to
use alternate methods to provide individuals with disabilities
with access to and use of information and data.
2.2
Federal Accessibility Requirements
Other Federal regulations and statutes (e.g., Section
501 and Section 504 of the Rehabilitation Act) also require
equal access to information for individuals with disabilities.
Therefore, Federal agencies are required to provide,
upon request, information and data to individuals with
disabilities through an alternate method of access.
2.3
Other Applicable Federal Regulations and Guidance
On April 19, 2000, the Department of Justice issued
its first report to the President on the extent to which
the EIT of the Federal Government is accessible to individuals
with disabilities. Every two years thereafter, the Attorney
General of the United States must report to the President
and Congress on Federal agency compliance with the requirements
of the law and on any actions on individual complaints.
The Office of Management and Budget (OMB) references
Section 508 in Circular A-11 for purposes of budget preparation.
In Section 33.4 Systems Acquisitions, A-11 (Revised 2003)
states:
You [agencies] should ensure Electronic and Information
Technology acquisitions meet the requirements of Section
508 of the Rehabilitation Act of 1973, as amended and
upon becoming effective to allow individuals with disabilities
comparable access to and use of data as allowed individuals
without disabilities, unless providing such accessibility
would impose an undue burden on your agency.
OMB further references Section 508 in Circular A-11 Section
53.1 (Revised 2003) for Agency IT Investment Portfolio
(Exhibit 53):
Ensure that spending on IT supports agency compliance
with the requirements of Section 508 of the Rehabilitation
Act Amendments of 1998 (Electronic and Information Technology
Accessibility) and Section 504 of the Rehabilitation
Act of 1973 (Reasonable Accommodation).
2.4
Computer/Electronic Accommodations Program (CAP)
The Computer/Electronic Accommodations Program (CAP),
http://www.tricare.osd.mil/cap/, in the Office of the
Assistant Secretary of Defense (Health Affairs) was established
to eliminate employment barriers for people with disabilities.
CAP helps eliminate those barriers by providing assistive
technology and services at no cost to the agency. To
assist with Section 508 compliance, CAP provides:
- Technical assistance to all Department of Defense
(DoD) and partner organizations.
- Demonstrations of assistive technology and accessible
environments at the CAP Technology Evaluation Center
(CAPTEC) in the Pentagon.
- Assistance to the DoD Chief Information Officer (CIO)
community in understanding Section 508 requirements.
- Assistance to acquisition organizations in learning
accessibility requirements.
- Assistance to office automation organizations to
ensure help desk understanding of accessibility requirements
and compatibility issues.
The Department of Health and Human Services, through
a memorandum of agreement, is a partner with CAP. HHS
employees with disabilities are able to benefit from
the full range of CAP services.
3.0 Scope
This policy applies to all departmental EIT developed,
procured, maintained, or used by HHS on or after June
21, 2001; and is to be implemented by all HHS employees
and contractors.
4.0 Policy
In accordance with Section 508 of the Rehabilitation
Act of 1973, as amended, when the Department develops,
procures, maintains, or uses EIT, each HHS Operating
Division and the Office of the Secretary shall ensure
that (1) individuals with disabilities who are Federal
employees have access to and use of information and data
that is comparable to the access to and use of the information
and data by Federal employees who are not individuals
with disabilities; and (2) individuals with disabilities
who are members of the public seeking information or
services from a Federal department or agency have access
to and use of information and data that is comparable
to the access to and use of the information and data
by such members of the public who are not individuals
with disabilities (FAR 39.201 and 36 CFR 1194.1). Comparable
access is not required if it would impose an undue burden
on the agency.
Each HHS Operating Division and the Office of the Secretary
shall adhere to the EIT Accessibility Standards (36 CFR
Part 1194) as published in the Federal Register of December
21, 2000. Each HHS Division shall adhere to the Federal
Acquisition Regulations on Electronic and Information
Technology Accessibility (48 CFR, Chapter 1, Parts 2,
7, 10, 11, 12, and 39) as published in the Federal Register
of April 25, 2001. EIT developed, procured or maintained
for HHS by a contractor must also comply with the standards
and regulations. Standards are organized into four subparts:
Subpart A – General (36 CFR §§ 1194.1-1194.5): Describes
the types of covered technologies and applications, explains
what is exempt, defines terminology, and recognizes that
acceptable alternatives that provide equivalent access
to and use of a product for people with disabilities
are permissible.
Subpart B –Technical Standards (36 CFR § 1194.21-1194.26):
Provides criteria specific to various types of technologies
and provides performance-based requirements for systems
and applications.
- Software applications and operating systems (36 CFR
§ 1194.21)
- Web-based intranet and internet information and applications
(1194.22)
- Telecommunications products (36 CFR § 1194.23)
- Video and multimedia products (36 CFR § 1194.24)
- Self contained, closed products (36 CFR § 1194.25)
- Desktop and portable computers (36 CFR § 1194.26)
Subpart C – Functional Performance Criteria (36 CFR
§ 1194.31): Provides performance requirements for overall
product evaluation and for technologies or components
for which there is no specific requirement under the
technical standards in Subpart B.
Subpart D –Information, Documentation, and Support (36
CFR § 1194.41): Addresses access to all information,
documentation, and support provided to end-users of covered
technologies, and identifies formats to be used.
4.1
Implementation
Each HHS Operating Division and the Office of the Secretary
shall designate a single individual at the senior management
level as the Section 508 Official. ?The designated Operating
Division and the Office of the Secretary Section 508
Official shall facilitate implementation of the Section
508 standards, regulations, policies, and procedures
as defined in this policy. For a more detailed listing
of the Section 508 Official’s responsibilities, refer
to Section 5.11.
Each Operating Division and the Office of the Secretary
shall develop a Section 508 Implementation Plan. The
Plan is to be reviewed annually and submitted to the
HHS Section 508 Coordinator for review and comment. The
HHS Section 508 Coordinator will then provide a recommendation
for approval/disapproval to the Director of the Office
on Disability. Each Operating Division's and the Office
of the Secretary’s Section 508 Implementation Plan, at
a minimum, shall include procedures that address:
- Processing exception requests, including commercial
nonavailability and undue burden exceptions to Section
508. These procedures must address Section 508 within
the Requirements Determination and Pre-Procurement
process.
- Procedures for annually reviewing approved undue
burden exceptions and re-certifying the waiver if appropriate.
- Procedures for ensuring Section 508 employment discrimination
complaints are forwarded to the Equal Employment Opportunity
Program Group (EEOPG), Office of Human Resources (OHR),
Office of the Assistant Secretary for Administration
and Management (ASAM), Office of the Secretary (OS),
and other complaints from employees, applicants for
employment, or members of the public alleging a failure
to comply with Section 508 are forwarded to the HHS
Office for Civil Rights (OCR) for investigation and
resolution.
- Handling other Operating Division/Office of the Secretary
Section 508 responsibilities, such as:
- Responding to the biennial Department of Justice
Section 508 survey.
- Requirements for maintaining copies of the approved
and denied commercial nonavailability and undue
burden exceptions, as well as other exception requests.
- Preparing quarterly reports of the approved and
denied commercial nonavailability and undue burden
exceptions, as well as other exception requests,
and forwarding the report to the HHS Section 508
Coordinator for processing.
- The report should list all approved or denied exceptions
requests submitted within the current quarter. Supporting
documentation for each approved or denied exception
should also be included with the report.
- If applicable, the report should also list undue
burden exceptions that the Operating Division/Office
of the Secretary has reviewed and re-certified within
the current quarter. Supporting documentation for the
exception waiver should also be included with the report.
In addition, the plan shall address:
- Descriptions of the roles and responsibilities of
the various Operating Division/Office of the Secretary
individuals who have ongoing Section 508 responsibilities.
- Descriptions of ongoing Operating Division/Office
of the Secretary Section 508 outreach activities including
those coordinated by the Office on Disability. For
example, outreach activities may include Section 508
training for all employees, both as part of new employee
orientation and Project Officer training.
4.2
Exceptions Approval
4.2.1
Oversight Responsibility for Exceptions Approval
The Office on Disability has the oversight responsibility
to insure Operating Division/Office of the Secretary
commercial nonavailability and undue burden exceptions
meet the standards established in 36 CFR Part 1194 and
FAR 39.2.
4.2.2
Approval Granted According to Operating Division/Office
of the Secretary Implementation Plan
Exceptions, including commercial nonavailability and
undue burden, will be processed according to each Operating
Division’s and the Office of the Secretary’s Section
508 Implementation Plan. The Operating Division and the
Office of the Secretary has the responsibility to insure
commercial nonavailability and undue burden exceptions
meet the standards established in 36 CFR Part 1194 and
FAR 39.2.
4.3
Section 508 Compliance Exceptions
4.3.1
Commercial Nonavailability Exception Determination and
Certification
In order for an acquisition to qualify for this exception,
the definition given in FAR Subpart 2.101 for the term
“commercial item” should be followed. The requesting
official should document individual Section 508 standards
that the product does not meet. 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. Each agency will use the standards established
in 36 CFR Part 1194 and FAR 10.001(a)(3)(vii) to conduct
its market research. See Section 11.2 of this document
for more information.
The certification statement should contain the following
language:
I have determined and hereby certify that the procurement
of the applicable EIT product(s) or services required
by my organization that are subject to Section 508 of
the Rehabilitation Act of 1973, as amended, in accordance
with 36 CFR Part 1194, is 'commercially not available',
nor expected to become available in a compliant version
in time to satisfy agency delivery requirements (36 CFR
1194.2(b) and FAR 39.203(c)). I have conducted the required
market research and have not found an accessible product.
At a minimum, the documentation should discuss the following
information:
- The products or services required to meet the agency’s
needs and the estimated timeframe of acquiring the
products or services.
- Identification of the applicable technical provisions
(Appendix B) that cannot be met with products or services
available from the marketplace, which concluded in
the determination that a compliant product or service
was not available.
- A description of the extent and how market research
was performed and details of the subsequent findings
to locate a commercially available item, which concluded
in the determination that a compliant product or service
was not available.
- Plan for providing information to persons with disabilities
in an alternate format if proposed noncompliant products
or services are purchased.
Each entity is still responsible for addressing how
it will accommodate persons with disabilities. In addition,
Operating Divisions and the Office of the Secretary should
compile their market research in such a way that will
make it efficient to report activity on the biennial
Department of Justice Section 508 survey.
This certification should be signed by the requesting
official and the requesting component’s authorized official.
The certification should contain both individuals’ signatures,
printed names, dates, and phone numbers. The determination
and certification documentation should be attached to
the Purchase Request and shall be processed in accordance
with each Operating Division's and the Office of the
Secretary’s Section 508 Implementation Plan.
Each Operating Division’s and the Office of the Secretary’s
approved or denied commercial nonavailability exceptions
are to be reported to the HHS Section 508 Coordinator
on a quarterly basis. See Section 4.1 of this document
for more information.
4.3.2
Undue Burden Exception Determination and Certification
Undue burden exceptions to this policy shall be based
on whether compliance efforts result in “significant
difficulty or expense.” In determining whether a particular
action is an undue burden under Section 508, the Operating
Division and the Office of the Secretary should consider
the difficulty or expense of compliance, and all agency
resources available to its program or component for which
the product or service is being developed, procured,
maintained, or used. Each undue burden exception will
be determined on a case-by-case basis and will require
annual renewal in accordance with the Operating Division’s
and the Office of the Secretary’s Implementation Plan.
The undue burden exception request must contain a plan
for providing individuals with disabilities with the
information and data involved by an alternative means
of access, as required by 36 CFR 1194.2 (a)(1).
An undue burden exception determination and certification
must be completed when compliance with any part of the
Section 508 standards would impose an undue burden. This
would typically be determined either before the completion
of the Purchase Request, or during the offer/proposal
evaluation. See Section 11.3 of this document for more
information.
For each provision of 36 CFR Part 1194 that an Operating
Division or the Office of the Secretary finds to be an
undue burden, the requesting official must document in
writing the basis for an undue burden decision. At a
minimum, the significant difficulty or expense must be
substantiated with the following documentation:
- The products or services required to meet the agency’s
needs and the estimated cost of acquiring the products
or services including all options.
- Undue burden justification, i.e., the significant
difficulty or expense the government would incur in
order to comply with a particular standard(s). If the
expense is deemed prohibitive, explain the costs and
how they were estimated.
- Market research conducted and subsequent findings
to locate the product or service that meet the applicable
provisions.
- Plan for providing information to persons with disabilities
regardless of current noncompliant products or services.
The certification statement should contain the following
language:
I have determined and hereby certify that development,
procurement, maintenance, or use of the applicable EIT
product(s) or services required by my organization that
are subject to Section 508 of the Rehabilitation Act
of 1973, as amended, in accordance with 36 CFR Part 1194,
present an ‘undue burden’ (36 CFR 1194.4 and FAR 39.204(e)).
This certification should be signed by the requesting
official and the requesting component’s authorized official.
The certification should contain both individuals’ signatures,
printed names, dates, and phone numbers. The determination
and certification documentation should be attached to
the Purchase Request and shall be processed in accordance
with the Operating Division's or the Office of the Secretary’s
Implementation Plan.
If an undue burden exception is granted, the Operating
Division or the Office of the Secretary must still provide
information and data to individuals with disabilities
through an alternate method of access the individuals
can use.
The approval of an undue burden exception by the Operating
Division or the Office of the Secretary does not mean
that the Operating Division/Office of the Secretary should
not make a good faith effort to meet Section 508 requirements
nor does the approval of an undue burden exception provide
a safe harbor. If an employee, applicant, or member of
the public files a Section 508 complaint, the justification
provided by an agency to support its request for an undue
burden exception could be reexamined either by the Equal
Employment Opportunity Program Group (EEOPG) Office or
the Office for Civil Rights during the complaint investigation.
If a determination is made that an Operating Division
or the Office of the Secretary failed to consider the
proper factors in determining that a particular action
would result in an undue burden, then the entity would
be required to take appropriate steps to comply with
Section 508.
Each Operating Division’s or the Office of the Secretary’s
approved or denied undue burden exceptions are to be
reported to the HHS Section 508 Coordinator on a quarterly
basis. See Section 4.1 of this document for more information.
4.3.3
General EIT Procurement Exceptions
All exceptions listed in this section should include
the following certification statement:
I have determined and hereby certify that this procurement
required by my organization is not subject to Section
508 of the Rehabilitation Act of 1973, as amended, in
accordance with 36 CFR Part 1194.3* and/or FAR 39.204*.
* State the specific procurement exception as listed
below that applies to your purchase request.
This certification should be signed by the requesting
official and the requesting component's authorized official.
The certification should contain both individuals' signatures,
printed names, dates, and phone numbers. No other certification
signature is required for exceptions in this section.
The determination and certification forms should be attached
to the Purchase Request and will be processed according
to each Operating Division’s and the Office of the Secretary’s
Section 508 Implementation Plan.
Section 508 does not apply to:
- Micro-Purchases: (It should be noted that this exception
is set to expire April 1, 2005)
- The exception is for a one-time purchase that
totals less than $2,500, made on the open market
rather than under an existing contract. The micro-purchase
exception does not exempt all products that cost
less than $2,500. For example, a $1,800 software
package that is purchased as part of a larger $3,000
purchase is not considered a micro-purchase.
- Regardless of purchase price, the agency is still
required to provide accommodation for individuals
with disabilities under Section 504 of the Rehabilitation
Act of 1973.
- Each Operating Division and the Office of the
Secretary should, in accordance with their Implementation
Plan, decide what exception documentation, if any,
is required for micro-purchases made by the respective
entity’s government personnel who are not warranted
contracting officers using Government-wide commercial
purchase cards.
- Each Operating Division’s and the Office of the
Secretary’s Section 508 exception documentation
requirements, if any, for micro-purchases should
be provided in that entity’s Government-wide Commercial
Purchase Card Program guidelines. (FAR 39.204 (a)).
- EIT for national security systems, as the term is
defined in Section 5142 of the Clinger-Cohen Act of
1996 (40 USC 1452). This exception does not include
systems used for routine administrative and business
applications (including payroll, finance, logistics,
and personnel management applications) (36 CFR Part
1194.3(a) and FAR 39.204(b)).
- EIT products a contractor develops, procures, maintains,
or uses that are incidental to a contract (36 CFR Part
1194.3(b) and FAR 39.204(c)).
- EIT "back office" equipment located in spaces frequented
only by service personnel for maintenance, repair or
occasional monitoring of equipment, such as telecommunications
equipment switches, servers, and other similar equipment
that is used for equipment maintenance and administration
(36 CFR Part 1194.3(f) and FAR 39.204(d)).
4.3.4
General Section 508 Exceptions
In addition to the exceptions listed in 4.3.3 above,
the Access Board Final Rule (36 CFR 1194.3) lists other
general exceptions that are exempt from compliance with
the Section 508 statute. These exceptions do not require
a certification statement.
- Except as required to comply with the provisions
of 36 CFR Part 1194, Section 508 does not require the
installation of specific accessibility-related software
or the attachment of an assistive technology device
at the workstation of a Federal employee who is not
an individual with a disability. It is not expected
that every computer will be equipped with a refreshable
Braille display, or every software program will have
a built-in screen reader, unless such installation
is required to comply with 36 CFR Part 1194. Such assistive
technology, however, may be required as part of a reasonable
accommodation for an employee with a disability (36
CFR Part 1194.3(c)).
- Section 508 does not require an agency to make equipment
owned by the agency available for access and use by
individuals with disabilities at a location other than
that where the EIT is provided to the public, or to
purchase equipment for access and use by individuals
with disabilities at a location other than that where
the EIT is provided to the public. The accessibility
of the location would be addressed under Section 504
of the Rehabilitation Act or other Federal laws (36
CFR Part 1194.3(d)).
- Section 508 does not require a fundamental alteration
in the nature of a product or its components. Fundamental
alteration means a change in the fundamental characteristic
or purpose of a product or service, not merely a cosmetic
or aesthetic change. For example, adding a large display
to a small pager may fundamentally alter the device
by significantly changing its size to such an extent
that it no longer meets the purpose for which it was
intended (36 CFR Part 1194.3(e)).
4.3.5
FAR Contract Exceptions
The FAR Final Rule lists specific exceptions for contracts
executed before June 25, 2001 (Federal Register Vol.
66, Page 20,894 “Supplementary Information”). For more
detailed exception information, see the Applicability
section of the FAR Final Rule. The Access Board’s EIT
standards at 36 CFR part 1194 do not apply to:
- Taking delivery for items ordered prior to June 25,
2001.
- Contracts awarded before June 25, 2001, including
option year renewals.
- Indefinite-quantity contracts even though requiring
and ordering activities must ensure Section 508 compliance
prior to placing an order or document an exception.
However, indefinite quantity contracts may include
noncompliant items, provided that any task or deliver
order issued for noncompliant EIT meets an applicable
exception or was issued on or after June 25, 2001 using
the indefinite-quantity contract (FAR 39.203 (b)(2)(3)).
- Within-scope modifications of contracts awarded before
June 25, 2001.
- Exercising unilateral options for contracts awarded
before June 25, 2001.
- Multi-year contracts awarded before June 25, 2001.
4.4
HHS Accessibility Intent
Although the Section 508 requirements do not apply retroactively
to pre-existing EIT, it is HHS' intent to meet the spirit
of the law for Subpart B – Technical Standards (36 CFR
§ 1194.21), Subpart C – Functional Performance Criteria
(36 CFR § 1194.31) and Subpart D – Information, Documentation,
and Support (36 CFR § 1194.41).
5.0
Roles and Responsibilities
5.1
Director of the Office on Disability (OD)
The OD is responsible for:
- Leading Department-wide compliance efforts with the
technical standards and acquisition regulations for
EIT.
- Submitting reports and survey data related to EIT
to appropriate government and other oversight organizations.
- Reviewing and evaluating the Operating Divisions’
and the Office of the Secretary’s commercial nonavailability
and undue burden exceptions reports to ensure they
meet the applicable Section 508 requirements and that
uniform standards are applied Department wide.
- Maintaining a record of HHS approved commercial nonavailability
and undue burden exceptions.
- Evaluating and reporting HHS’ approved commercial
nonavailability and undue burden exceptions to the
appropriate government oversight agencies.
- Approving HHS Operating Divisions' and the Office
of the Secretary’s Section 508 Implementation Plans.
- Making recommendations to Operating Divisions and
the Office of the Secretary in appointing members to
the HHS Section 508 Program Team.
- Evaluating and reporting HHS’ programmatic and technical
compliance to the appropriate government oversight
agencies.
- Providing technical assistance to individuals, Operating
Divisions and the Office of the Secretary relating
to the Access Board’s technical standards and the corresponding
Federal Acquisition Regulations implementing Section
508.
- Performing administrative functions necessary to
support the HHS Section 508 program.
- Designating the HHS Section 508 Coordinator.
5.2
Assistant Secretary for Budget, Technology, and Finance
(ASBTF)
The ASBTF is responsible for:
- Advising the Department on IT policy matters affecting
accessibility of EIT for individuals with disabilities
within the HHS community, including participation in
policy development activities and HHS Operating Divisions’
and the Office of the Secretary’s work groups on Section
508 implementation.
- Recommending appropriate members for the Section
508 Program Team in the area of IT.
- Advising the Operating Divisions and the Office of
the Secretary on EIT aspects of requests for exceptions
for commercial nonavailability or undue burden.
- Submitting reports and survey data related to EIT
to appropriate government and other oversight organizations.
5.3
Assistant Secretary for Administration and Management
(ASAM)
The ASAM is responsible for:
- Ensuring enforcement of Section 508 as it relates
to the provision of specialized equipment, workspace,
and employment programs and activities conducted by
the Department, as the primary official responsible
for procurement, buildings, and personnel management.
- Recommending appropriate members for the Section
508 Program Team from the Equal Employment Opportunity
Program Group (EEOPG), Office of Grants Management
and Policy (OGMP) and Office of Acquisition Management
and Policy (OAMP).
- Providing technical assistance and guidance to HHS
procurement offices in the conduct of procurements
of EIT resources to achieve compliance with Access
Board Section 508 standards as published in the December
21, 2000, Federal Register (65 F.R. 80499).
- Ensuring that HHS acquisitions procured on or after
June 25, 2001, adhere to the Federal Acquisition Regulations;
Electronic and Information Technology Accessibility
(48 CFR, Chapter 1, Parts 2, 7, 10, 11, 12, and 39).
- Ensuring the required Section 508 exception documentation
is included in the contract file for any instance when
HHS or its Operating Divisions/Office of the Secretary
are unable to comply with Section 508.
- Submitting reports and survey data related to EIT
to appropriate government and other oversight organizations.
5.4
Deputy Assistant Secretary for Information Resources
Management (DASIRM), ASBTF
The DASIRM is responsible for:
- Providing programmatic and technical guidance and
assistance to each Operating Division and the Office
of the Secretary concerning the implementation of the
requirements and standards of Section 508.
- Providing technical assistance concerning the Access
Board’s technical standards and the corresponding Federal
Acquisition Regulations implementing Section 508.
- Submitting reports and survey data related to EIT
to appropriate government and other oversight organizations.
5.5
Deputy Assistant Secretary for Human Resources (DASHR),
ASAM
The DASHR is responsible for:
- Advising the Department on human resources policy
matters affecting accessibility of EIT for individuals
with disabilities within the HHS community, including
participation in policy development activities and
HHS Operating Divisions’ and the Office of the Secretary’s
work groups on Section 508 implementation.
- Serving as the liaison between Section 508 stakeholders
and those involved in Section 508 implementation, including
facilitating meetings among Section 508 stakeholders.
- Tracking and monitoring HHS compliance with Section
508 requirements as it relates to employment-related
matters.
- Initiating such other actions as may be necessary
to facilitate and ensure compliance with Section 508
consistent with the procedures of 29 CFR Part 1614.
- Submitting reports and survey data related to EIT
to appropriate government and other oversight organizations.
5.6
Director of the Office for Civil Rights (OCR)
In accordance with the Letter of Delegation signed by
the Secretary on August 30, 2001, the Director of the
OCR is responsible for:
- Accepting and investigating complaints, other than
employment-related complaints filed by employees, applicants
for employment at the Department, or members of the
public alleging a failure to comply with Section 508
consistent with the procedures set forth in 45 CFR
Part 85.
- Providing technical assistance to HHS components
regarding the resolution of Section 508 non-employment
complaints.
- Evaluating the effectiveness of Section 508 complaint
processing by OCR and providing reports to appropriate
oversight organizations.
- Initiating such other actions as may be necessary
to facilitate and ensure compliance with Section 508
consistent with the procedures set forth in 45 CFR
Part 85.
In pursuit of the responsibilities set forth in the
Letter of Delegation, OCR shall also:
- Develop and implement procedures governing the processing
of complaints that are not Section 508 employment-related,
and develop procedures for referring employment-related
complaints to the Equal Employment Opportunity Program
Group (EEOPG) for processing.
- Inform the Office on Disability of the status and
disposition of complaints filed.
- Provide policy interpretations regarding the nondiscrimination
requirements of Section 508.
- Disseminate information on Section 508 nondiscrimination
requirements.
- Submit reports and survey data related to EIT to
appropriate government and other oversight organizations.
- Recommend appropriate membership on the Section 508
Program Team.
5.7
Director of the Equal Employment Opportunity Program
Group (EEOPG)
The Director of the EEO Program Group, OHR, ASAM, is
responsible for:
- Accepting and investigating (as designated by the
HHS EEOPG Director) employment-related complaints filed
by Federal employees and applicants for employment
at the Department alleging a failure to comply with
Section 508 consistent with the procedures set forth
in 29 CFR Part 1614.
- Ensuring enforcement of Section 508 as it relates
to employment programs and activities conducted by
the Department.
- Providing technical assistance to HHS components
regarding the resolution of Section 508 employment-related
complaints.
- Informing the Office on Disability of the status
and disposition of complaints filed.
- Evaluating the effectiveness of Section 508 employment-related
complaints processing by HHS and providing reports
to the appropriate oversight organizations.
- Developing and implementing procedures governing
the processing of employment-related Section 508 complaints,
and developing procedures for referring complaints
that are not employment-related to OCR for processing.
- Disseminating information on Section 508 policies,
standards, procedures and guidance, and available assistive
technologies for use by employees with disabilities.
- Submitting reports and survey data related to EIT
to appropriate government and other oversight organizations.
- Recommending appropriate members for the Section
508 Program Team.
5.8
HHS Section 508 Coordinator
The HHS Section 508 Coordinator is responsible for:
- Representing the Department on the Federal IT Coordinator
Initiative and other Section 508 oversight government
programs.
- Establishing, facilitating, and overseeing the HHS
Section 508 policies, procedures, and guidelines and
the HHS Section 508 program.
- Ensuring information sharing through appropriate
HHS Section 508 Web sites.
- Reviewing and commenting on each Section 508 Implementation
Plan.
- Appointing subject matter experts to the HHS Section
508 Program Team in accordance with the Section 508
Program Team charter.
- Reviewing, in conjunction with the HHS Section 508
Program Team, the Operating Divisions’ and the Office
of the Secretary’s commercial nonavailability and undue
burden exception reports and forwarding recommendations
to the Director of the Office on Disability, when necessary,
to ensure Section 508 requirements are being approved
in a uniform manner through out the Department.
- Maintaining a record of HHS approved commercial nonavailability
and undue burden exceptions.
- Preparing reports and survey data related to HHS
EIT usage and HHS commercial nonavailability and undue
burden exceptions to appropriate government oversight
organizations.
5.9
HHS Section 508 Program Team (508 PT)
The HHS Section 508 Program Team:
- Shall be chaired by the HHS Section 508 Coordinator
and shall be comprised of the designated members from
each HHS Operating Division and the Office of the Secretary
who have the authority to represent their respective
Section 508 matters.
- Shall meet at least quarterly to provide guidance
and direction for the HHS Section 508 Program, by developing
the governance structure for the Section 508 program.
This will include documents covering areas such as
policy, procedures and guidance.
- May include subject matter experts appointed by the
HHS Section 508 Coordinator.
- May be tasked with performing studies on the state
of Section 508 compliance across HHS at the request
of bodies like the CIO Council or the Office on Disability.
- Shall review the Operating Divisions’ and the Office
of the Secretary’s commercial nonavailability and undue
burden exception reports, in conjunction with the HHS
Section 508 Coordinator, and make recommendations,
when necessary, to the Director of the Office on Disability
to ensure the exceptions meet Section 508 requirements
and are approved in a uniform manner through out the
Operating Divisions and the Office of the Secretary.
- Submit reports and survey data related to EIT to
appropriate government and other oversight organizations.
5.10
Operating Division Head
The Operating Division Head shall be responsible for:
- Ensuring the Operating Division’s compliance with
Section 508, as amended.
- Designating a senior-level manager as the Operating
Division’s Section 508 Official.
- Submitting reports and survey data related to EIT
to appropriate government and other oversight organizations.
5.11
Office of the Secretary Head
The Office of the Secretary Head shall be responsible
for:
- Ensuring the Office of the Secretary Staff Divisions’
compliance with Section 508, as amended.
- Designating a senior-level manager as the Office
of the Secretary’s Section 508 Official.
- Submitting reports and survey data related to EIT
to appropriate government and other oversight organizations.
- Ensuring that each Staff Division in the Office of
the Secretary designates a senior-level manager as
the Staff Division’s responsible person to address
Section 508 matters.
5.12
Operating Division and Office of the Secretary Section
508 Official
Each Operating Division and the Office of the Secretary
Section 508 Official shall be responsible for:
- Leading the Operating Divisions’ and the Office of
the Secretary’s Section 508 Program.
- Facilitating the Operating Divisions’ and the Office
of the Secretary’s Section 508 implementation and adherence
to the Federal and HHS Section 508 standards, regulations,
policies, plans, and procedures.
- Facilitating efficient communication of Section 508
issues within the Department.
- Reviewing exception requests, including commercial
nonavailability and undue burden exceptions, for Section
508 compliance and forwarding quarterly exception reports
to the HHS Section 508 Coordinator for processing.
If the exception is for a multi-year contract then
the exception waiver will be reviewed at the conclusion
of the given contract time period.
- Submitting reports and survey data related to EIT
for inclusion in required Departmental documents, in
accordance with the Operating Divisions’ and the Office
of the Secretary’s established procedures.
- Assuring that an Implementation Plan for Section
508 is developed covering each Operating Division’s
and the Office of the Secretary’s procedural methodology
for performing Section 508 activities. The Director
of the Office on Disability shall approve these Plans.
Each Plan is to be reviewed annually by the Operating
Division/Office of the Secretary and submitted to the
HHS Section 508 Coordinator for review and comment.
- Maintaining a record of each Operating Divisions’s
and the Office of the Secretary’s approved and denied
exceptions, including commercial nonavailability and
undue burden exceptions, and Section 508 complaints.
- Assuring that information about Section 508 activities
is shared within the Operating Divisions, the Office
of the Secretary’s Staff Divisions and among interested
internal partners.
5.13
Operating Division and Office of the Secretary Authorizing
Officials
Each Operating Division and the Office of the Secretary
Authorizing Officials shall be responsible for:
- Processing all EIT purchase requests in accordance
with their Section 508 Implementation Plan.
- Reviewing, certifying and forwarding for additional
approvals new and previously approved EIT exceptions
for commercial nonavailability and undue burden in
compliance with Section 508.
- Reviewing and certifying all other EIT exceptions
to Section 508 compliance as required.
5.14
Operating Division and Office of the Secretary Requesting
Officials
Each Operating Division and the Office of the Secretary
Requesting Officials shall be responsible for:
- Preparing and processing all EIT purchase requests
in accordance with their Section 508 Implementation
Plan.
- Reviewing the Access Board standards and determining
which Section 508 Accessibility Standards (36 CFR Part
1194) apply to the specific EIT product or service
being procured.
- Performing market research, in accordance with FAR
10.001, to determine the commercial availability of
products and services that meet the applicable technical
provisions. The requiring official must identify which
technical provisions, if any, do not apply due to an
exception, such as commercial nonavailability or undue
burden.
- Developing technical specifications and minimum requirements
based on the results of market research and Operating
Division and Staff Division needs. This information
must be submitted along with the purchase request,
including commercial nonavailability or undue burden
documentation as appropriate, to the contracting officer
for inclusion in the contract file. Documentation must
include a description of market research performed
and identification of the applicable Section 508 Accessibility
Standards (36 CFR Part 1194) that are satisfied or
not satisfied.
- Determining and documenting commercial nonavailability
and undue burden EIT exceptions for compliance with
Section 508, as applicable. See Sections 4.3.1 and
4.3.2 of this document for more information.
- Certifying and forwarding for approval EIT exceptions
for compliance with Section 508.
6.0
Applicable Laws/Guidance
The following Federal documents are applicable:
- 29 USC §794d – Section 508 of the Rehabilitation
Act of 1973, as amended.
- Public Law 105-220 – Workforce Investment Act of
1998.
- 36 CFR Part 1194 – Electronic and Information Technology
Accessibility Standards; Final Rule.
- 48 CFR, Chapter 1, Parts 2, 7, 10, 11, 12, and 39
– Federal Acquisition Regulations; Electronic and Information
Technology Accessibility.
- 29 CFR 1614.203 – Federal Sector Equal Employment
Opportunity.
- 29 USC § 791– Section 501 of the Rehabilitation Act
of 1973, as amended.
- 29 USC § 794 – Section 504 of the Rehabilitation
Act of 1973, as amended.
- 44 USC §3501 et seq. – Paperwork Reduction Act (PRA)
of 1980, as amended.
- 40 USC §11101; 40 USC § 11103 – Information Technology
Management Reform Act of 1996 (Clinger-Cohen Act).
- Public Law 101-336 – Americans with Disabilities
Act of 1990.
- Public Law 100-542 – The Telecommunications Accessibility
Enhancement Act of 1988.
- Public Law 97-410 – Telecommunications for the Disabled
Act of 1992.
- Public Law 100-394 – Hearing Aid Compatibility Act
of 1988.
- OMB Circular A-130 – Management of Federal Information
Resources.
- Executive Order 13011 – Federal Information Technology.
- OMB Circular A-11 – Preparation, Submission, and
Execution of the Budget.
The following Internet sites provide detailed guidance,
tools, and references to assist with Section 508 compliance
requirements:
7.0
Information and Assistance
Direct questions, comments, suggestions or requests
for further information to the HHS Section 508 Coordinator
at (202) 401-5844.
8.0
Effective Date/Implementation
The effective date of this policy is the date the policy
is approved.
The HHS policies contained in this issuance shall be
implemented in accordance with Public Law 93-638, the
Indian Self-Determination and Education Assistance Act,
as amended, and the Secretary's policy statement dated
August 7, 1997, as amended, titled "Department Policy
on Consultation with American Indian/Alaska Native Tribes
and Indian Organizations." It is HHS’ policy to consult
with the American Indians/Alaska Natives to the greatest
practicable extent and to the extent permitted by law
before taking actions that affect these governments and
people so as to assess the impact of the Department's
plans, projects, programs, and activities on tribal and
other available resources, and to remove any procedural
impediments to working directly with tribal governments
or the American Indians/Alaska Natives.
9.0 Approved
________________________________________ _______________
Tommy G. Thompson Date
Secretary
10.0 Glossary
Term |
Definition |
Access Board
|
The Architectural and Transportation
Barriers Compliance Board (Access Board) is an
independent Federal agency whose primary mission
is to promote accessibility for individuals with
disabilities.
The Rehabilitation Act Amendments of 1998 requires
the Access Board to publish standards setting
forth a definition of electronic and information
technology and the technical and functional performance
criteria necessary for such technology to comply
with Section 508. |
Agency |
A Federal department such as HHS
or Department of Justice (DOJ). |
Alternate Formats |
Formats that are usable by people
with disabilities. Those formats may include, but
are not limited to Braille, ASCII text, large print,
recorded audio, and electronic formats that comply
with Section 508 standards (36 CFR § 1194.4). |
Alternate Methods |
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 (36 CFR § 1194.4). |
Assistive Technology |
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. This may include
screen readers, which allow persons who cannot
see a visual display to either hear screen content
or read the content in Braille. |
CFR |
Code of Federal Regulations |
Commercial Item |
Any item that can be purchased off-the-shelf
and used without making changes, except those designed
within the equipment or software. Reference FAR
Subpart 2.101 for a comprehensive definition of "commercial
item." |
Commercial Nonavailability |
Refers to circumstances where no
commercial items are available that meet the applicable
Access Board’s technical provisions (directly or
through equivalent facilitation) in time to satisfy
the agency’s delivery requirements. If products
are available that meet some, but not all, applicable
provisions, agencies cannot claim a product as
a whole is nonavailable just because it does not
meet all of the applicable technical provisions.
The requiring official must document commercial
nonavailability in writing (FAR.203(c) and 36 CFR
1194.2(b)). |
Department |
The Department refers to the Department
of Health and Human Services. The Secretary, the
Under Secretary and their immediate offices, the
Operating Division, the Staff Division, and the
Regional Directors and their offices collectively
are the Department. |
Division |
A Division is an HHS Operating
Division (OPDIV) or Staff Division (STAFFDIV).
An Operating Division is an organization whose
primary function is to direct and manage the
substantive programs of the Department and whose
head reports directly to the Secretary.
The Staff Division is an organization within
the Office of the Secretary carrying out the
routine internal functions within HHS such as
policy, planning and budget.
There are 13 HHS OPDIVs and 12 HHS STAFFDIVs. |
Division Head |
Is an individual with the lead
responsibility in the Operating Division for
administration and program planning. |
Electronic and Information Technology
(EIT) |
Includes “Information Technology”
and any equipment or interconnected system or
subsystem of equipment that is used in the creation,
conversion, or duplication of data or information.
The term includes, but is not limited to, telecommunication
products (such as telephones), information kiosks
and transaction machines, World Wide Web sites,
multimedia, and office equipment such as copiers
and fax machines.
The term does 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,
is not Information Technology. |
Exception Request |
A formal request for an exemption
from a Section 508 Standard as outlined in each
of the Operating Division’s and the Office of the
Secretary’s Implementation Plan. See Section 4.3
for a list of exceptions and requirements. |
Extranet |
An extension of an institution’s
intranet, especially over the World Wide Web, enabling
communication between the institution and people
it deals with, often by providing limited access
to its intranet. |
FAR |
Federal Acquisition Regulations |
Health and Human Services Section
508 Program Team (HHS 508 PT) |
The Program Team, consisting of
membership from each Operating Division and Staff
Division and chaired by the HHS Office on Disability
Section 508 Coordinator, provides guidance and
direction for the HHS Section 508 program. It develops
policies and processes; recommends undue burden
and commercial nonavailability exceptions to the
Office on Disability; and, as request, conducts
studies and surveys on the effectiveness of the
Section 508 Program. |
Information Technology (IT) |
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. It includes computers, ancillary
equipment, software, firmware and similar procedures,
services (including support services), and related
resources. (This definition is identical to the
definition of Information Technology in the Clinger-Cohen
Act.) |
Market Research |
A process used to collect, organize,
maintain, analyze, and present data for the purpose
of maximizing the capabilities, technology and
competitive force of the marketplace to meet
an organization's needs for supplies or services.
Market research information will differ depending
on whether the research is being conducted to
develop a requirements document, support preparation
of a solicitation, or both.
Market research examples are available on the
Section 508 Website at http://www.section508.gov. |
Office of the Secretary |
The Secretary, the Deputy Secretary
and their immediate offices, the Staff Division,
and the Regional Directors and their offices collectively
are the Office of the Secretary. |
Product |
Shorthand for Electronic and Information
Technology. |
Section 504 of the Rehabilitation
Act of 1973 |
Section 504 of the Rehabilitation
Act of 1973 as amended, prohibits discrimination
on the basis of disability in programs or activities
conducted by Federal agencies. The Section 504
federally conducted regulations are found at 45
CFR Part 85. |
Self-Contained Closed Products |
Products 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 transmission, between or among
points specified by the user, of information of
the user's choosing, without change in the form
or content of the information as sent and received. |
TTY |
An abbreviation for teletypewriter.
Machinery or equipment that employs interactive
text based communications through the transmission
of coded signals across the telephone network.
TTYs may include, for example, devices known as
TDDs (telecommunication display devices or telecommunication
devices for deaf persons) or computers with special
modems. TTYs are also called text telephones. |
Undue Burden |
Significant difficulty or expense.
In determining whether an action would result
in an undue burden, an agency shall consider
the difficulty or expense of compliance, and
all agency resources available to its program
or component for which the product or service
is being developed, procured, maintained, or
used. |
11.0 Appendix
A
11.1
Section 508 Compliance Reference
The scope of Section 508 is limited to the Federal sector.
It does not apply to the private sector, nor does Section
508 impose requirements on the recipients of Federal
financial assistance. Procurement information is available
at www.section508.gov in the Acquisition FAQs section.
Compliance with Section 508 only applies to EIT as stated
in Appendix B. A Federal agency is not required to acquire
Section 508 compliant EIT if an exception applies. The
Access Board and the FAR Councils specify several exceptions
to Section 508 compliance.
A brief description of the exceptions is listed in the
following sections. See Section 4.3 of this document
for more information.
11.2
Commercial Nonavailability Exception
In order for an acquisition to qualify for this exception,
the definition given in FAR Subpart 2.101 for the term
“commercial item” should be followed. The requesting
official should document individual Section 508 standards
that cannot be met, but still must procure the product
that best meets the standards. Agencies must comply with
those accessibility standards that can be met with supplies
and services available in the commercial marketplace
in time to meet the agency’s delivery requirements. Each
agency will use the standards established in 36 CFR Part
1194 and FAR 10.001(a)(3)(vii) to conduct its market
research. If products are commercially available that
meet some, but not all applicable Section 508 standards,
the agency cannot claim a product, as a whole, is not
available just because it does not meet all of the Section
508 standards (FAR 39.203).
An item is commercially available if:
- It is for sale in the commercial marketplace.
- It will be on the market in time to satisfy the solicitation.
- With minor modification, the item could be available
in time to satisfy the solicitation.
See Section 4.3.1 of this document for more information.
11.3
Undue Burden Exception
The undue burden exceptions shall be based on “significant
difficulty or expense to the agency.” In determining
whether an action would result in an undue burden, an
agency shall consider the difficulty or expense of compliance,
and all agency resources available to its program or
component for which the product or service is being developed,
procured, maintained, or used. Each undue burden exception
will be determined on a case-by-case basis (FAR 39.204
(e) and 36 CFR 1194.2) and will require annual renewal
in accordance with the Operating Division’s/Office of
the Secretary’s Implementation Plan.
When procuring a product, if a Federal department or
agency determines that compliance with any provision
of Section 508 imposes an undue burden, the documentation
by the department or agency supporting the procurement
must explain why, and to what extent, compliance with
each provision creates an undue burden (36 CFR 1194.2(a)(2).
Additionally, if a department or agency determines that
a procurement would impose an undue burden, the Federal
department or agency must 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 (36 CFR 1194.2(a)(1)).
The requesting official must document in writing the
basis for an undue burden decision and provide the documentation
to the contracting officer for inclusion in the contract
file. When acquiring commercial items, an undue burden
determination is not required to address individual standards
that cannot be met with supplies or services available
in the commercial marketplace in time to meet the agency
delivery requirements (see 39.203(c)(2) regarding documentation
of commercial nonavailability).
The significant difficulty or expense must be substantiated
with the following:
- The products or services required to meet the agency’s
needs and the estimated cost of acquiring the products
or services, including all options.
- Undue burden justification, i.e., the significant
difficulty or expense the agency would incur in order
to comply with a particular standard(s). If the expense
is deemed prohibitive, explain the costs and how they
were estimated.
- Market research conducted and subsequent findings
to locate the product or service that meet the applicable
provisions.
- Plan for providing information to persons with disabilities
regardless of current noncompliant products or services.
See Section 4.3.2 of this document for more information.
11.4
General EIT Procurement Exceptions
The Access Board standards (36 CFR 1194.3) and the FAR
regulations (FAR 39.204) do not apply to EIT that:
- Is purchased in accordance with FAR Subpart 13.2
(micro-purchases) prior to October 1, 2004. However,
for micro-purchases, contracting officers and other
individuals are strongly encouraged to comply with
the applicable accessibility standards to the maximum
extent practicable (FAR 39.204 (a)).
- Is for national security systems (36 CFR 1194.3 (a)).
- Is acquired by a contractor incidental to a contract
(FAR 39.204 (c) and 36 CFR 1194.3 (b)).
- Is located in spaces frequented only by service personnel
for maintenance, repair or occasional monitoring of
equipment, sometimes referred to as ‘back office’ equipment
(FAR 39.204 9(d) and 36 CFR 1194.3 (f)).
See Section 4.3.3 of this document for more information.
11.5
General Section 508 Exceptions
In addition to the exceptions listed in Section 11.4
above, the Access Board Final Rule (36 CFR 1194.3) lists
other general exceptions that are exempt from compliance
with the Section 508 statute.
- Installation of specific 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 unless compliance with
Section 508 is required by 36 CFR Part 1194.
- Purchasing or making products available at a location
other than where the EIT is provided to the public,
36 CFR Part 1194.3(d).
- Fundamental alteration in the nature of a product
or its components, 36 CFR Part 1194.3(e).
See Section 4.3.4 of this document for more information.
11.6
FAR Contract Exceptions
The FAR Final Rule lists specific exceptions for contracts
executed before June, 25, 2001 (Federal Register Vol.
66, Page 20,894, “Supplementary Information”). The Access
Board’s EIT standards at 36 CFR Part 1194 do not apply
to:
- Taking delivery for items ordered prior to June 25,
2001.
- Contracts awarded before June 25, 2001, including
option year renewals.
- Indefinite-quantity contracts even though requiring
and ordering activities must ensure Section 508 compliance
prior to placing an order or document an exception.
However, indefinite quantity contracts may include
noncompliant items, provided that any task or deliver
order issued for noncompliant EIT meets an applicable
exception or was issued on or after June 25, 2001 using
the indefinite-quantity contract (FAR 39.203 (b)(2)).
- Within-scope modifications of contracts awarded before
June 25, 2001.
- Exercising unilateral options for contracts awarded
before June 25, 2001.
- Multi-year contracts awarded before June 25, 2001.
For more detailed exception information, see the Applicability
section of the FAR Final Rule and Section 4.3.5 of this
document.
12.0 Appendix
B
12.1
Access Board Final Rule (36 CFR Part 1194)
12.1.1
Subpart B -- Technical Standards
§ 1194.21 Software applications and operating
systems.
- When software is designed to run on a system that
has a keyboard, product functions shall be executable
from a keyboard where the function itself or the result
of performing a function can be discerned textually.
- Applications shall not disrupt or disable activated
features of other products that are identified as accessibility
features, where those features are developed and documented
according to industry standards. Applications also
shall not disrupt or disable activated features of
any operating system that are identified as accessibility
features where the application programming interface
for those accessibility features has been documented
by the manufacturer of the operating system and is
available to the product developer.
- A well-defined on-screen indication of the current
focus shall be provided that moves among interactive
interface elements as the input focus changes. The
focus shall be programmatically exposed so that assistive
technology can track focus and focus changes.
- Sufficient information about a user interface element
including the identity, operation and state of the
element shall be available to assistive technology.
When an image represents a program element, the information
conveyed by the image must also be available in text.
- When bitmap images are used to identify controls,
status indicators, or other programmatic elements,
the meaning assigned to those images shall be consistent
throughout an application's performance.
- Textual information shall be provided through operating
system functions for displaying text. The minimum information
that shall be made available is text content, text
input caret location, and text attributes.
- Applications shall not override user selected contrast
and color selections and other individual display attributes.
- When animation is displayed, the information shall
be displayable in at least one non-animated presentation
mode at the option of the user.
- Color coding shall not be used as the only means
of conveying information, indicating an action, prompting
a response, or distinguishing a visual element.
- When a product permits a user to adjust color and
contrast settings, a variety of color selections capable
of producing a range of contrast levels shall be provided.
- Software shall not use flashing or blinking text,
objects, or other elements having a flash or blink
frequency greater than 2 Hz and lower than 55 Hz.
- When electronic forms are used, the form shall allow
people using assistive technology to access the information,
field elements, and functionality required for completion
and submission of the form, including all directions
and cues.
§ 1194.22 Web-based intranet and internet information
and applications.
- A text equivalent for every non-text element shall
be provided (e.g., via "alt", "longdesc", or in element
content).
- Equivalent alternatives for any multimedia presentation
shall be synchronized with the presentation.
- Web pages shall be designed so that all information
conveyed with color is also available without color,
for example from context or markup.
- Documents shall be organized so they are readable
without requiring an associated style sheet.
- Redundant text links shall be provided for each active
region of a server-side image map.
- Client-side image maps shall be provided instead
of server-side image maps except where the regions
cannot be defined with an available geometric shape.
- Row and column headers shall be identified for data
tables.
- Markup shall be used to associate data cells and
header cells for data tables that have two or more
logical levels of row or column headers.
- Frames shall be titled with text that facilitates
frame identification and navigation.
- Pages shall be designed to avoid causing the screen
to flicker with a frequency greater than 2 Hz and lower
than 55 Hz.
- A text-only page, with equivalent information or
functionality, shall be provided to make a web site
comply with the provisions of this part, when compliance
cannot be accomplished in any other way. The content
of the text-only page shall be updated whenever the
primary page changes.
- When pages utilize scripting languages to display
content, or to create interface elements, the information
provided by the script shall be identified with functional
text that can be read by assistive technology.
- When a web page requires that an applet, plug-in
or other application be present on the client system
to interpret page content, the page must provide a
link to a plug-in or applet that complies with §1194.21(a)
through (l).
- When electronic forms are designed to be completed
on-line, the form shall allow people using assistive
technology to access the information, field elements,
and functionality required for completion and submission
of the form, including all directions and cues.
- A method shall be provided that permits users to
skip repetitive navigation links.
- When a timed response is required, the user shall
be alerted and given sufficient time to indicate more
time is required.
Note to §1194.22:
- The Board interprets paragraphs (a) through (k) of
this section as consistent with the following priority
1 Checkpoints of the Web Content Accessibility Guidelines
1.0 (WCAG 1.0) (May 5, 1999) published by the Web Accessibility
Initiative of the World Wide Web Consortium:
Section 1194.22 Paragraph WCAG 1.0 Checkpoint
- 1.1
- 1.4
- 2.1
- 6.1
- 1.2
- 9.1
- 5.1
- 5.2
- 12.1
- 7.1
- 11.4
- Paragraphs (l), (m), (n), (o), and (p)
of this section are different from WCAG 1.0. Web pages
that conform to WCAG 1.0, level A (i.e., all priority
1 checkpoints) must also meet paragraphs (l), (m),
(n), (o), and (p) of this section to comply with this
section. WCAG 1.0 is available at http://www.w3.org/TR/1999/WAI-WEBCONTENT-19990505.
§ 1194.23 Telecommunications products.
- Telecommunications products or systems which provide
a function allowing voice communication and which do
not themselves provide a TTY functionality shall provide
a standard non-acoustic connection point for TTYs.
Microphones shall be capable of being turned on and
off to allow the user to intermix speech with TTY use.
- Telecommunications products which include voice communication
functionality shall support all commonly used cross-manufacturer
non-proprietary standard TTY signal protocols.
- Voice mail, auto-attendant, and interactive voice
response telecommunications systems shall be usable
by TTY users with their TTYs.
- Voice mail, messaging, auto-attendant, and interactive
voice response telecommunications systems that require
a response from a user within a time interval, shall
give an alert when the time interval is about to run
out, and shall provide sufficient time for the user
to indicate more time is required.
- Where provided, caller identification and similar
telecommunications functions shall also be available
for users of TTYs, and for users who cannot see displays.
- For transmitted voice signals, telecommunications
products shall provide a gain adjustable up to a minimum
of 20 dB. For incremental volume control, at least
one intermediate step of 12 dB of gain shall be provided.
- If the telecommunications product allows a user to
adjust the receive volume, a function shall be provided
to automatically reset the volume to the default level
after every use.
- Where a telecommunications product delivers output
by an audio transducer which is normally held up to
the ear, a means for effective magnetic wireless coupling
to hearing technologies shall be provided.
- Interference to hearing technologies (including hearing
aids, cochlear implants, and assistive listening devices)
shall be reduced to the lowest possible level that
allows a user of hearing technologies to utilize the
telecommunications product.
- Products that transmit or conduct information or
communication shall pass through cross-manufacturer,
non-proprietary, industry-standard codes, translation
protocols, formats or other information necessary to
provide the information or communication in a usable
format. Technologies which use encoding, signal compression,
format transformation, or similar techniques shall
not remove information needed for access or shall restore
it upon delivery.
- Products which have mechanically operated controls
or keys, shall comply with the following:
- Controls and keys shall be tactilely discernible
without activating the controls or keys.
- Controls and keys shall be operable with one
hand and shall not require tight grasping, pinching,
or twisting of the wrist. The force required to
activate controls and keys shall be 5 lbs. (22.2
N) maximum.
- If key repeat is supported, the delay before
repeat shall be adjustable to at least 2 seconds.
Key repeat rate shall be adjustable to 2 seconds
per character.
- The status of all locking or toggle controls
or keys shall be visually discernible, and discernible
either through touch or sound.
§ 1194.24 Video and multimedia products.
- All analog television displays 13 inches and larger,
and computer equipment that includes analog television
receiver or display circuitry, shall be equipped with
caption decoder circuitry which appropriately receives,
decodes, and displays closed captions from broadcast,
cable, videotape, and DVD signals. As soon as practicable,
but not later than July 1, 2002, widescreen digital
television (DTV) displays measuring at least 7.8 inches
vertically, DTV sets with conventional displays measuring
at least 13 inches vertically, and stand-alone DTV
tuners, whether or not they are marketed with display
screens, and computer equipment that includes DTV receiver
or display circuitry, shall be equipped with caption
decoder circuitry which appropriately receives, decodes,
and displays closed captions from broadcast, cable,
videotape, and DVD signals.
- Television tuners, including tuner cards for use
in computers, shall be equipped with secondary audio
program playback circuitry.
- All training and informational video and multimedia
productions which support the agency's mission, regardless
of format, that contain speech or other audio information
necessary for the comprehension of the content, shall
be open or closed captioned.
- All training and informational video and multimedia
productions which support the agency's mission, regardless
of format, that contain visual information necessary
for the comprehension of the content, shall be audio
described.
- Display or presentation of alternate text presentation
or audio descriptions shall be user-selectable unless
permanent.
§ 1194.25 Self contained, closed products.
- Self contained products shall be usable by people
with disabilities without requiring an end-user to
attach assistive technology to the product. Personal
headsets for private listening are not assistive technology.
- When a timed response is required, the user shall
be alerted and given sufficient time to indicate more
time is required.
- Where a product utilizes touchscreens or contact-sensitive
controls, an input method shall be provided that complies
with §1194.23 (k) (1) through (4).
- When biometric forms of user identification or control
are used, an alternative form of identification or
activation, which does not require the user to possess
particular biological characteristics, shall also be
provided.
- When products provide auditory output, the audio
signal shall be provided at a standard signal level
through an industry standard connector that will allow
for private listening. The product must provide the
ability to interrupt, pause, and restart the audio
at anytime.
- When products deliver voice output in a public area,
incremental volume control shall be provided with output
amplification up to a level of at least 65 dB. Where
the ambient noise level of the environment is above
45 dB, a volume gain of at least 20 dB above the ambient
level shall be user selectable. A function shall be
provided to automatically reset the volume to the default
level after every use.
- Color coding shall not be used as the only means
of conveying information, indicating an action, prompting
a response, or distinguishing a visual element.
- When a product permits a user to adjust color and
contrast settings, a range of color selections capable
of producing a variety of contrast levels shall be
provided.
- Products shall be designed to avoid causing the screen
to flicker with a frequency greater than 2 Hz and lower
than 55 Hz.
- Products which are freestanding, non-portable, and
intended to be used in one location and which have
operable controls shall comply with the following:
- The position of any operable control shall be
determined with respect to a vertical plane, which
is 48 inches in length, centered on the operable
control, and at the maximum protrusion of the product
within the 48 inch length.
- Where any operable control is 10 inches or less
behind the reference plane, the height shall be
54 inches maximum and 15 inches minimum above the
floor.
- Where any operable control is more than 10 inches
and not more than 24 inches behind the reference
plane, the height shall be 46 inches maximum and
15 inches minimum above the floor.
- Operable controls shall not be more than 24 inches
behind the reference plane.
§ 1194.26 Desktop and portable computers.
- All mechanically operated controls and keys shall
comply with §1194.23 (k) (1) through (4).
- If a product utilizes touch screens or touch-operated
controls, an input method shall be provided that complies
with §1194.23 (k) (1) through (4).
- When biometric forms of user identification or control
are used, an alternative form of identification or
activation, which does not require the user to possess
particular biological characteristics, shall also be
provided.
- Where provided, at least one of each type of expansion
slots, ports and connectors shall comply with publicly
available industry standards.
12.1.2
Subpart C -- Functional Performance Criteria
§ 1194.31 Functional performance criteria.
- At least one mode of operation and information retrieval
that does not require user vision shall be provided,
or support for assistive technology used by people
who are blind or visually impaired shall be provided.
- At least one mode of operation and information retrieval
that does not require visual acuity greater than 20/70
shall be provided in audio and enlarged print output
working together or independently, or support for assistive
technology used by people who are visually impaired
shall be provided.
- At least one mode of operation and information retrieval
that does not require user hearing shall be provided,
or support for assistive technology used by people
who are deaf or hard of hearing shall be provided.
- Where audio information is important for the use
of a product, at least one mode of operation and information
retrieval shall be provided in an enhanced auditory
fashion, or support for assistive hearing devices shall
be provided.
- At least one mode of operation and information retrieval
that does not require user speech shall be provided,
or support for assistive technology used by people
with disabilities shall be provided.
- At least one mode of operation and information retrieval
that does not require fine motor control or simultaneous
actions and that is operable with limited reach and
strength shall be provided.
12.1.3
Subpart D -- Information, Documentation, and Support
§ 1194.41 Information, documentation, and support.
- Product support documentation provided to end-users
shall be made available in alternate formats upon request,
at no additional charge.
- End-users shall have access to a description of the
accessibility and compatibility features of products
in alternate formats or alternate methods upon request,
at no additional charge.
- Support services for products shall accommodate the
communication needs of end-users with disabilities.
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