[Federal Register Volume 85, Number 62 (Tuesday, March 31, 2020)]
[Proposed Rules]
[Pages 17831-17835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05867]



[[Page 17831]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 7, 10, 11, 12, and 39

[FAR Case 2017-011; Docket No. FAR-2017-0011, Sequence No. 1]
RIN 9000-AN46


Federal Acquisition Regulation: Section 508-Based Standards in 
Information and Communication Technology

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to incorporate recent revisions and 
updates to accessibility standards issued by the U.S. Access Board 
pursuant to section 508 of the Rehabilitation Act of 1973.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at one of the addresses shown below on 
or before June 1, 2020 to be considered in the formation of a final 
rule.

ADDRESSES: Submit comments identified by FAR case 2017-011 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by searching for 
``FAR Case 2017-011''. Select the link ``Comment Now'' that corresponds 
with ``FAR Case 2017-011.'' Follow the instructions provided on the 
screen. Please include your name, company name (if any), and ``FAR Case 
2017-011'' on your attached document.
     Mail: General Services Administration, Regulatory 
Secretariat Division (MVCB), ATTN: Lois Mandell, 1800 F Street NW, 2nd 
Floor, Washington, DC 20405.
    Instructions: Please submit comments only and cite ``FAR case 2017-
011 (proposed rule)'' in all correspondence related to this case. All 
comments received will be posted without change to http://www.regulations.gov, including any personal and/or business 
confidential information provided. To confirm receipt of your 
comment(s), please check www.regulations.gov, approximately two to 
three days after submission to verify posting (except allow 30 days for 
posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Camara Francis, Procurement 
Analyst, at 202-550-0935 for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat Division at 202-501-4755. Please cite FAR Case 2017-011.

SUPPLEMENTARY INFORMATION:

I. Background

    In 1998, Congress amended section 508 of the Rehabilitation Act of 
1973 (29 U.S.C. 794d), to strengthen requirements for accessibility to 
electronic and information technology (now generally referred to as 
``information and communication technology'' or ``ICT'') provided by 
the Federal Government. Among other things, section 508 mandates that 
Federal agencies ``develop, procure, maintain, or use'' ICT in a manner 
that ensures that Federal employees with disabilities have comparable 
access to, and use of, such information and data relative to other 
Federal employees. Section 508 also requires Federal agencies to ensure 
that members of the public with disabilities have comparable access to 
publicly available information and data.
    The Access Board, also known as the Architectural and 
Transportation Barriers Compliance Board, is tasked with issuing 
accessibility standards for ICT covered under section 508, and updating 
these standards periodically to reflect technological changes. The 
Federal Acquisition Regulatory Council, in turn, is required to revise 
the FAR to incorporate the Access Board's accessibility standards or 
any amendments thereto.
    In December 2000, the Access Board published its initial set of 
accessibility standards at 65 FR 80500, (December 21, 2000). 
Thereafter, a final FAR rule was published incorporating the Access 
Board's accessibility standards at 66 FR 20894 (April 25, 2001).
    The Access Board completed a multiyear effort to ``refresh'' its 
initial, existing set of accessibility standards under section 508 to 
address advances in ICT, harmonize with accessibility standards 
developed by standards organizations worldwide, and ensure consistency 
with the Access Board's regulations that had been promulgated since the 
late 1990s. The revised section 508 Accessibility Standards support the 
access needs of individuals with disabilities, while also considering 
the costs of providing accessible ICT to Federal agencies.
    The Access Board's final rule was published in the Federal Register 
at 82 FR 5790 on January 18, 2017. This proposed rule updates the FAR 
to ensure that the updated standards are appropriately considered in 
Federal ICT acquisitions. The proposed rule includes a ``safe harbor'' 
provision for existing (i.e., legacy) ICT, which considers legacy ICT 
in existence on or before January 18, 2018, to be compliant if it meets 
the earlier standard issued pursuant to section 508 of the 
Rehabilitation Act of 1973 (See E202.2 of Revised Standards) and the 
legacy ICT is not altered after January 18, 2018. In other words, such 
``untouched'' ICT need not be modified or upgraded to conform to the 
revised 508 standards as long as it already conforms to the original 
508 standards. However, ICT acquired on or before January 18, 2018, 
will need to be upgraded or modified to conform to the new standard if 
such ICT is altered after January 18, 2018, or does not comply with the 
original 508 standards. In addition, ICT acquired after January 18, 
2018, must be upgraded or modified to conform to the new standard. Such 
direction will be included in requirements documents issued by the 
agency.

II. Discussion and Analysis

    The proposed rule provides for the following:
    (1) At FAR 2.101, the definition for ``Electronic and information 
technology (EIT)'' is removed and replaced with the definition of 
``Information and communication technology (ICT)''.
    (2) At FAR 7.103, ``EIT'' is removed and replaced with ``ICT'', the 
standard citation is updated, the term ``service requirement'' is added 
along with examples, and the unnecessary reference to 11.002(e) is 
removed.
    (3) At FAR 7.105, language is added to require that the applicable 
accessibility standards be identified in the acquisition plan and 
provide the applicability, exception or exemption of the standards to 
the acquisition.
    (4) At FAR 10.001, EIT is removed and replaced with ICT, and the 
name of the Architectural and Transportation Barriers Compliance Board 
is removed, and the citation is updated.
    (5) At FAR 11.002, the text is revised to guide the contracting 
officer rather than requiring activities, and to more clearly identify 
the ICT information that is required in the requirements documents.
    (6) At FAR 12.202, EIT is removed and replaced with ICT, and the 
standards citation is updated. The obligations for requirements 
documents are revised from ``must comply with'' to

[[Page 17832]]

``shall identify'' the applicable information and communication 
technology accessibility standards.
    (7) At FAR 39.000, the term ``electronic and information 
technology'' is revised to ``information and communication 
technology.''
    (8) At FAR 39.001, the section is restructured to add a new 
paragraph (b) to clarify the scope of the applicability of part 39.
    (9) At FAR 39.101, the term ``accommodations'' is removed and 
replaced with ``accessibility,'' to more closely align the FAR with the 
terminology in 36 CFR 1194.1.
    (10) At FAR 39.201, the name ``Architectural and Transportation 
Barriers Compliance Board'' is replaced with the ``U.S. Access Board,'' 
and ``EIT'' is removed and replaced with ``ICT.''
    (11) At FAR 39.203, paragraph headings are added for easier 
navigation through the subject matter.
    (i) In paragraph (a), ``EIT'' is replaced with ``ICT.''
    (ii) Paragraph (b) clarifies that an exception or a determination 
of an exemption is not required prior to the award of an indefinite-
quantity contract, except for requirements that are to be satisfied by 
initial award.
    (iii) In paragraph (c) (formerly paragraph (b)(3)), new language 
has been added to clarify that requiring and ordering activities shall 
document an exception or an exemption to the accessibility standards, 
if applicable, at the time of order issuance.
    (iv) In paragraph (d) (formerly paragraph (c)(1), the requirement 
that commercial items must be available in time to meet the agency's 
delivery requirements is modified to state that the items must best 
meet the agency's needs.
    (v) Paragraph (e) is new. It sets forth the requirements for legacy 
ICT, i.e., any component or portion of existing ICT that was procured, 
maintained, or used on or before January 18, 2018.
    (vi) Paragraph (f) is also new. It addresses the requirements for 
alterations of legacy ICT after January 18, 2018.
    (12) At FAR 39.204, obsolete language in paragraph (a) is removed. 
The new paragraph (a) has been restructured to clarify that the 
accessibility standards for ICT do not apply to acquisitions that fall 
under one of the three exception categories: (1) National security 
systems; (2) incidental contract items; and (3) maintenance or 
monitoring spaces. New language has been added as paragraph (b) which 
requires the contracting officer to receive written confirmation from 
the requiring activity of the exception. Current paragraph (e) 
regarding undue burden is moved to the new section 39.205 which covers 
exemptions.
    (13) FAR 39.205 is a new section that is added to address 
exemptions. Paragraph (a)(1) addresses undue burden which was moved 
from 39.204(e). Paragraph (a)(2) provides an exemption for agencies to 
acquire ICT that conforms only to the extent that conformance with the 
accessibility standards in 36 CFR 1194.1 will not result in a 
fundamental alteration in the nature of the ICT. Paragraph (a)(3) 
addresses an exemption when there are no commercial items that fully 
conform to the ICT accessibility standards in 36 CFR 1194.1. Paragraph 
(b) requires an agency to provide individuals with disabilities access 
to and use of information and data by an alternative means when using 
an exemption. Paragraph (c) addresses the documentation requirements 
for using an exemption.

III. Expected Impact of the Proposed Rule and Proposed Cost Savings

    DoD, GSA, and NASA did not perform their own regulatory cost 
analysis on this proposed rule because the Final Regulatory Impact 
Analysis (FRIA), dated January 5, 2017, which accompanied the U.S. 
Access Board's Final ICT Rule, provides an adequate economic assessment 
of both the Board's rule and this proposed rule. Therefore, the 
calculated compliance costs of $79.0 million over a 10-year timeframe 
is attributable to the U.S. Access Board's Final ICT Rule.
    The Access Board's FRIA estimates that, under the expected cost 
scenario, incremental compliance costs to Federal agencies for procured 
ICT under the revised 508 Accessibility Standards over a 10-year 
timeframe will be $79.0 million per year using a 7% discount rate, and 
$82.8 million per year using a 3% discount rate. These costs will 
largely be incurred from compliance with the revised 508 Accessibility 
Standards for procured ICT products and services.
    With respect to monetized benefits attributable to procured ICT, 
the Access Board's FRIA estimates that, under the expected scenario, 
benefits for procured ICT (and, hence, this proposed rule) are likely 
to have an annualized value of $33.1 million over a 10-year timeframe 
using a 7% discount rate, and $35.2 million using a 3% discount rate. 
These benefits would accrue to Federal agencies as a result from 
productivity increases by Federal employees and time saved from reduced 
phone calls to Federal agencies. Additionally, persons with 
disabilities using public-facing Federal information and data (e.g., 
Federal websites) would experience improved access and time savings. 
There are also substantial unquantifiable benefits. For example, 
enhanced ICT accessibility for persons with disabilities can be 
expected to improve independent living, increase civic engagement, 
decrease stigma, promote equality, and enhance integration into 
American society. Updating the FAR to incorporate the revised 508 
Accessibility Standards is also expected to provide benefits to ICT 
firms that could not be monetized. For example, harmonization with 
national and international consensus standards is likely to assist 
American ICT companies by helping to achieve economies of scale created 
by wider use of these technical standards.
    To access the U.S. Access Board's FRIA, go to the Access Board's 
website (https://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-ict-refresh/final-regulatory-impact-analysis), or the electronic docket for the Access Board's Final ICT 
rule at the Federal eRulemaking Portal (https://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-ict-refresh/final-regulatory-impact-analysis).

IV. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-the-Shelf (COTS) Items

    This rule does not add or modify any provisions or clauses. This 
rule proposes to amend FAR part 39, Acquisition of Information 
Technology, and other references to Government requirements for 
information and communication technology. The objective of the rule is 
to update the FAR text to align with the accessibility standards 
revisions made by the Access Board at 36 CFR 1194.1. The accessibility 
standards are currently applicable to all information and communication 
technology acquisitions. As such, determinations and findings under 41 
U.S.C. 1905 to 1907 regarding the applicability of this rule to 
acquisitions at or below the SAT or to acquisitions for commercial and 
COTS items are not required.
    The FAR rule will continue the existing applicability of Section-
508 requirements, when acquiring ICT through contracts at or below the 
SAT, or contracts for the acquisition of commercial items, including 
COTS items.

[[Page 17833]]

V. Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is a ``significant regulatory action'' under the terms of E.O. 
12866 (58 FR 51735, October 4, 1993) and is therefore subject to review 
under E.O. 12866 and 13563 (76 FR 3821, January 21, 2011). This rule is 
not a major rule under 5 U.S.C. 804.

VI. Executive Order 13771

    This proposed rule, if finalized as proposed, is expected to be an 
E.O. 13771 regulatory action.

VII. Regulatory Flexibility Act

    The changes may have a significant economic impact on a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act, 5 U.S.C. 601, et seq. The Initial Regulatory 
Flexibility Analysis (IRFA) is summarized as follows:

    This proposed rule amends the FAR to incorporate recent 
revisions and updates to the accessibility standards issued by the 
U.S. Access Board pursuant to section 508 of the Rehabilitation Act 
of 1973 (29 U.S.C. 794d). Section 508 generally mandates that 
Federal agencies develop, procure, maintain, and use information and 
communication technology (ICT) in a manner that ensures Federal 
employees and members of the public with disabilities have 
comparable access to, and use of, such information and data. The 
U.S. Access Board periodically reviews and revises these 
accessibility standards to reflect technological advances and other 
changes to ICT that occur over the passage of time.
    The objective of this proposed rule is to revise the FAR to 
improve the accessibility of ICT developed, procured, maintained, or 
used by the Federal Government. Improved accessibility reduces 
barriers to employment in the Federal Government for individuals 
with disabilities and reduces the probability that Federal employees 
with disabilities will be underemployed. The revised 508 
accessibility standards may also benefit people outside the Federal 
workforce, since the accessible technology from the Federal 
Government may spill over to the rest of society. The legal basis 
for this rule is section 508 of the Rehabilitation Act of 1973 (29 
U.S.C. 794d).
    Based on fiscal year 2018 data from the Federal Procurement Data 
System (FPDS), it is estimated that there are approximately 22,809 
contractors that manufacture, sell, or lease ICT supplies or 
services required to comply with section 508 standards. 
Approximately 12,845 of these contractors are small businesses. 
Although, the section 508 standards are not new, small businesses 
will have to analyze whether the information and communication 
technology they or their resellers plan to sell to the Federal 
Government complies with the revised 508 accessibility standards. 
Manufacturers may want to redesign their supplies and services to 
make them fully compliant, to have a better chance for their items 
to be purchased by the Government. The proposed rule may decrease 
demand for some supplies and services that are not fully compliant, 
potentially leading to decreased sales for small entities 
manufacturing or selling those items. Conversely, the proposed rule 
may increase demand for some supplies and services that are fully 
compliant and meet agency's business needs, potentially leading to 
increased sales for small businesses manufacturing or selling those 
items. To meet the requirements of the law, small businesses cannot 
be exempt from any part of the rule.
    There are no projected reporting or recordkeeping requirements. 
There is a compliance requirement; entities will need to familiarize 
themselves with the differences between the 2000 and 2017 standards 
in order to assess the impact on procurements and comply with the 
revised functional performance criteria and technical accessibility 
standards beyond those currently mandated in FAR subpart 39.2.
    Although the U.S. Access Board did not provide an analysis in 
their final rule of the impact of the regulatory action on small 
entities because the revised 508 standards directly regulate only 
Federal entities, DoD, GSA, and NASA included compliance burden for 
large and small entities. It was estimated that approximately 12,845 
small businesses would be subject to the requirement.
    There are no known significant alternatives to the rule for 
effective implementation of this statutory requirement. Since the 
statute imposes private enforcement, where individuals with 
disabilities can file civil rights lawsuits, the Government has 
little flexibility in promulgating alternatives to the Access 
Board's standards. The impact of this rule may be significant for 
small entities that are not currently in compliance with existing 
standards.

    The Regulatory Secretariat Division has submitted a copy of the 
IRFA to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the IRFA may be obtained from the Regulatory 
Secretariat Division. DoD, GSA, and NASA invite comments from small 
business concerns and other interested parties on the expected impact 
of this rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2017-011) in 
correspondence.

VIII. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 2, 7, 10, 11, 12, and 39

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 7, 
10, 11, 12, and 39 as set forth below:

0
1. The authority citation for 48 CFR parts 2, 7, 10, 11, 12, and 39 
continues to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 2--DEFINITIONS OF WORDS AND TERMS

0
2. Amend section 2.101, in paragraph (b) by--
0
 a. Removing the definition ``Electronic and information technology 
(EIT)''; and
0
 b. Adding in alphabetical order the definition ``Information and 
communication technology (ICT)'' to read as follows:


2.101   Definitions.

* * * * *
    (b) * * *
    Information and communication technology (ICT) means information 
technology and other equipment, systems, technologies, or processes, 
for which the principal function is the creation, manipulation, 
storage, display, receipt, or transmission of electronic data and 
information, as well as any associated content. Examples of ICT 
include, but are not limited to: Computers and peripheral equipment; 
information kiosks and transaction machines; telecommunications 
equipment; customer premises equipment; multifunction office machines; 
software; applications; website; videos; and electronic documents.
* * * * *

PART 7--ACQUISITION PLANNING

0
3. Amend section 7.103 by revising paragraph (q) to read as follows:


7.103   Agency-head responsibilities.

* * * * *

[[Page 17834]]

    (q) Ensuring that acquisition planners specify needs and develop 
plans, drawings, work statements, specifications, or other product or 
service requirements (e.g., help desks, call centers, training 
services, and automated self-service technical support) descriptions 
that address information and communication technology (ICT) 
accessibility standards (see 36 CFR 1194.1) in proposed acquisitions 
and that these standards are included in requirements planning (see 
subpart 39.2).
* * * * *
0
4. In section 7.105, amend paragraph (b) by redesignating paragraph 
(b)(5)(iv) as paragraph (b)(5)(v) and adding a new paragraph (b)(5)(iv) 
to read as follows.


7.105   Contents of written acquisition plans.

* * * * *
    (b) * * *
    (iv) For acquisitions to which the ICT accessibility standards will 
apply, identify the applicable standard(s) and whether an exception or 
an exemption to the standard(s) applies (see subpart 39.2 and 36 CFR 
1194.1).
* * * * *

PART 10--MARKET RESEARCH

0
5. Amend section 10.001 by revising paragraph (a)(3)(viii) to read as 
follows:


10.001   Policy.

    (a) * * *
    (3) * * *
    (viii) Assess the availability of supplies or services that meet 
all or part of the applicable information and communication technology 
accessibility standards at 36 CFR 1194.1 (see subpart 39.2).
* * * * *

PART 11--DESCRIBING AGENCY NEEDS

0
6. Amend section 11.002 by revising paragraph (f) to read as follows:


11.002   Policy.

* * * * *
    (f) In accordance with section 508 of the Rehabilitation Act of 
1973 (29 U.S.C. 794d), the contracting officer shall obtain from the 
requiring activity the requirement documents, which must identify--
    (1) The needs of current and future users with disabilities to 
determine how--
    (i) Users with disabilities will perform the functions supported by 
the information and communication technology (ICT); and
    (ii) The ICT will be developed, installed, configured and 
maintained to support users with disabilities;
    (2) The applicable information and communication technology 
accessibility standards (see subpart 39.2); and
    (3) Any information and communication technology accessibility 
standards that cannot be met due to an exception or an exemption for 
any component or portion of the product (see subpart 39.2).
* * * * *

PART 12--ACQUISITION OF COMMERCIAL ITEMS

0
7. Amend section 12.202 by revising paragraph (d) to read as follows:


12.202   Market research and description of agency need.

* * * * *
    (d) Requirements documents shall identify the applicable 
information and communication technology accessibility standards at 36 
CFR 1194.1 (see 11.002(f) and subpart 39.2).
* * * * *

PART 39--ACQUISITION OF INFORMATION TECHNOLOGY

0
8. Amend section 39.000 by revising paragraph (b) to read as follows:


39.000   Scope of part.

* * * * *
    (b) Information and communication technology (see 2.101(b)).
0
9. Revise section 39.001 to read as follows:


39.001   Applicability.

    This part applies to the acquisition of--
    (a) Information technology by or for the use of agencies except for 
acquisitions of information technology for national security systems. 
However, acquisitions of information technology for national security 
systems shall be conducted in accordance with 40 U.S.C. 11302 with 
regard to requirements for performance and results-based management; 
the role of the agency Chief Information Officer in acquisitions; and 
accountability. These requirements are addressed in OMB Circular No. A-
130; and
    (b) Information and communication technology by or for the use of 
agencies or for the use of the public, unless an exception (see 39.204) 
or an exemption (see 39.205) applies. See 36 CFR 1194.1.


39.101   [Amended]

0
10. Amend section 39.101 by removing from paragraph (a)(1)(i) 
``accommodations'' and adding ``accessibility'' in its place.
0
11. Revise subpart 39.2 heading to read as follows:

Subpart 39.2--Information and Communication Technology

* * * * *
0
12. Amend section 39.201 by revising paragraph (a), and removing from 
paragraph (c) ``EIT'' and adding ``ICT'' in its place to read as 
follows:


39.201   Scope of subpart.

    (a) This subpart implements section 508 of the Rehabilitation Act 
of 1973 (29 U.S.C. 794d), and incorporates the U.S. Access Board's 
information and communication technology (ICT) accessibility standards 
at 36 CFR 1194.1.
* * * * *
0
13. Revise sections 39.203 and 39.204, and add section 39.205 to read 
as follows:


39.203   Applicability.

    (a) General. Unless an exception at 39.204 or an exemption at 
39.205 applies, acquisitions for ICT supplies and services shall meet 
the applicable ICT accessibility standards at 36 CFR 1194.1.
    (b) Indefinite-quantity contracts. Confirmation of an exception or 
a determination of an exemption is not required prior to award of an 
indefinite-quantity contract, except for requirements that are to be 
satisfied by initial award. The contract must identify which supplies 
and services the contractor indicates as compliant, and show where full 
details of compliance can be found (e.g., vendor's or other exact 
website location).
    (c) Task or delivery order. At the time of issuance of a task or 
delivery order against an indefinite-quantity contract, the requiring 
and ordering activity shall ensure compliance with the ICT 
accessibility standards and document an exception or exemption if 
applicable. Any task or delivery order, or portion thereof, issued for 
a noncompliant ICT item shall be supported by the appropriate exception 
or exemption.
    (d) Commercial items. When acquiring commercial items, an agency 
must comply with those ICT accessibility standards that can be met with 
supplies or services that are available in the commercial marketplace 
and that best address the agency's needs, but see 39.205(a)(3).
    (e) Legacy ICT. Any component or portion of existing ICT (i.e. ICT 
that was procured, maintained, or used on or before January 18, 2018) 
is not required to comply with the current ICT accessibility standards 
if it--

[[Page 17835]]

    (1) Complies with an earlier standard issued pursuant to section 
508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), which is set 
forth in Appendix D to 36 CFR 1194.1); and
    (2) Has not been altered (i.e., a change that affects 
interoperability, the user interface, or access to information or data) 
after January 18, 2018.
    (f) Alterations of legacy ICT. When altering any component or 
portion of existing ICT, after January 18, 2018, the component or 
portion must be modified to conform to the current ICT accessibility 
standards in 36 CFR 1194.1.


39.204   Exceptions.

    (a) The requirements in 39.203 do not apply to acquisitions for--
    (1) National security systems. ICT operated by agencies as part of 
a national security system, as defined by 40 U.S.C. 11103(a);
    (2) Incidental contract items. ICT acquired by a contractor 
incidental to a contract, i.e., for in-house use by the contractor to 
perform the contract; or
    (3) Maintenance or monitoring spaces. Status indicators and 
operable parts for ICT functions that are located in spaces frequented 
only by service personnel for maintenance, repair, or occasional 
monitoring of equipment.
    (b) The contracting officer shall receive, as a part of the 
requirements documentation, written confirmation from the requiring 
activity that an exception, in accordance with paragraphs (a)(1), (2), 
or (3) of this section applies to the ICT supply or service. This 
documentation shall be maintained in the contract file.


39.205   Exemptions.

    (a) An agency may grant an exemption for the following:
    (1) Undue burden. When an agency determines the acquisition of ICT 
conforming with all the applicable ICT accessibility standards would 
impose an undue burden on the agency, compliance with the ICT 
accessibility standards is only required to the extent that it would 
not impose an undue burden. In determining whether conformance to one 
or more ICT accessibility standards would impose an undue burden, an 
agency shall consider the extent to which conformance would impose 
significant difficulty or expense considering the agency resources 
available to the program or component for which the ICT supply or 
service is being procured.
    (2) Fundamental alteration. When an agency determines that 
acquisition of ICT that conforms with all applicable ICT accessibility 
standards would result in a fundamental alteration in the nature of the 
ICT, such acquisition is required to conform only to the extent that 
conformance will not result in a fundamental alteration in the nature 
of the ICT.
    (3) Nonavailability of conforming commercial items. Where there are 
no commercial items that fully conform to the ICT accessibility 
standards, the agency shall procure the supplies or service available 
in the commercial marketplace that best meets the ICT accessibility 
standards consistent with the agency's needs.
    (b) Alternative means of access. An agency shall provide 
individuals with disabilities access to and use of information and data 
by an alternative means to meet the identified needs when an exemption 
in paragraphs (a)(1), (2), or (3) of this section applies.
    (c) Documentation. When an exemption applies, the contracting 
officer shall obtain, as part of the requirements documentation, a 
written determination from the requiring activity explaining the basis 
for the exemption in paragraphs (a)(1), (2) or (3) of this section. 
This documentation shall be maintained in the contract file.
    (1) Undue burden. A determination of undue burden shall address why 
and to what extent compliance with applicable ICT accessibility 
standards constitutes an undue burden.
    (2) Fundamental alteration. A determination of fundamental 
alteration shall address the extent to which compliance with the 
applicable ICT accessibility standards would result in a fundamental 
alteration in the nature of the ICT.
    (3) Nonavailability of conforming commercial items. A determination 
of commercial items nonavailability shall include--
    (i) A description of the market research performed;
    (ii) A listing of the requirements that cannot be met; and
    (iii) The rationale for determining that the ICT to be procured 
best meets the ICT accessibility standards in 36 CFR 1194.1, consistent 
with the agency's needs.

[FR Doc. 2020-05867 Filed 3-30-20; 8:45 am]
 BILLING CODE 6820-EP-P