[Federal Register Volume 86, Number 152 (Wednesday, August 11, 2021)]
[Rules and Regulations]
[Pages 44229-44233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16363]


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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

[FAC 2021-07; FAR Case 2017-011; Item I; 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: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to incorporate recent revisions 
and updates to accessibility standards issued by the U.S. Access Board.

DATES: Effective September 10, 2021.

FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement 
Analyst, at 202-208-4949, or by email at [email protected] for 
clarification of content. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or [email protected]. Please cite FAC 2021-07, FAR Case 
2017-011.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published a proposed rule at 85 FR 17831 on 
March 31, 2020, to implement the U.S. Access Board's revisions by 
strengthening FAR 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 of the Rehabilitation Act 
of 1973 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 Federal employees who are not individuals with 
disabilities. Section 508 also requires Federal agencies to ensure that 
members of the public with disabilities have comparable access to, and 
use of, information and data relative to members of the public who are 
not individuals with disabilities.
    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 procuring ICT that complies with section 508.
    The Access Board's final rule was published in the Federal Register 
at 82 FR 5790 on January 18, 2017. This final rule updates the FAR to 
ensure that the updated standards are appropriately considered in 
Federal ICT acquisitions. The final 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. The 
upgrades and modifications would be included in requirements documents 
issued by the agency.

[[Page 44230]]

    Two respondents submitted comments on the proposed rule.

II. Discussion and Analysis

    For details on the proposed changes to the FAR, see the proposed 
rule. The Councils reviewed the comments received in response to the 
proposed rule. Two respondents submitted public comments supporting the 
issuance of the rule. No changes were made to the final rule as a 
result of public comments. The Councils acknowledge support for the 
rule. However, clarifying changes were made to the language at section 
7.105 to detail information that should be included in the acquisition 
plan when an exception or an exemption to the standards apply. At FAR 
section 39.204, paragraph (a)(3), examples are included of the portions 
of ICT that are ``operable parts'' by adding the text ``i.e., hardware-
based user controls for activating, deactivating, or adjusting ICT''.

III. 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 create new solicitation provisions or contract 
clauses or impact any existing provisions or clauses. This rule amends 
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.
    Section 508 requirements will continue to apply when acquiring ICT 
through contracts at or below the SAT, or contracts for the acquisition 
of commercial items, including COTS items.

IV. Expected Impact of the Rule

    This final 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. These revisions and updates provide benefits 
that would accrue to Federal agencies, including 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 access and use of 
mission-critical ICT, productivity, ability to achieve professional 
potential, 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 are 
difficult to quantify and thus were not 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.
    This rule codifies changes made by the U.S. Access Board. As such, 
the monetized costs and benefits in the Final Regulatory Impact 
Analysis (FRIA), which accompanied the U.S. Access Board's Final ICT 
Rule, are now realized at the Federal contract level.
    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 final 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.
    To access the U.S. Access Board's FRIA, go to the Access Board's 
website (https://www.access-board.gov/ict/fria.html) or the electronic 
docket for the Access Board's Final ICT rule at the Federal eRulemaking 
Portal (https://www.regulations.gov/docket/ATBCB-2015-0002).

V. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 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 and, therefore, was subject to 
review under section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993.

VI. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD, GSA, and NASA will 
send the rule and the ``Submission of Federal Rules Under the 
Congressional Review Act'' form to each House of the Congress and to 
the Comptroller General of the United States. A major rule cannot take 
effect until 60 days after it is published in the Federal Register. The 
Office of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget has determined that this is not a major rule 
under 5 U.S.C. 804.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601-612. The FRFA is summarized as follows:

    This final rule amends the FAR to incorporate recent revisions 
and updates to the accessibility standards issued by the 
Architectural and Transportation Barriers Compliance Board (referred 
to as 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 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 and members of the public who are not 
individuals with disabilities. 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.
    There were no significant issues raised by the public in 
response to the Initial Regulatory Flexibility Analysis.
    The rule applies to all contractors and subcontractors, 
regardless of size. 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

[[Page 44231]]

are small businesses. As a result of incorporating the updated 
accessibility standards, the monetized costs and benefits in the 
Final Regulatory Impact Analysis, which accompanied the U.S. Access 
Board's Final ICT Rule, are now realized at the Federal contract 
level for small businesses. However, there are unquantifiable 
impacts at the Federal contract level for small businesses in the 
final rule. For instance, small businesses will have to analyze 
whether the ICT 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 final 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 final rule may 
increase demand for some supplies and services that are fully 
compliant and meet agencies' 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.
    This rule does not include any new 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.
    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.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of 
the Small Business Administration.

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. 3501-3521).

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 amend 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. In section 2.101, amend paragraph (b)(2) 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) * * *
    (2) * * *
    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 the following: Computers and peripheral 
equipment; information kiosks and transaction machines; 
telecommunications equipment; customer premises equipment; 
multifunction office machines; software; applications; websites; 
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.

* * * * *
    (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. Amend section 7.105 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) * * *
    (5) * * *
    (iv) For information technology acquisitions, identify the 
applicable ICT accessibility standard(s). When an exception or an 
exemption to the standard(s) applies, the plan must list the exception 
and/or exemption, and the item(s) to which it applies. For those items 
listing 39.204 or 39.205(a)(1) or (2), the corresponding accessibility 
standard does not need to be identified. See subpart 39.2 and 36 CFR 
1194.1.
* * * * *

PART 10--MARKET RESEARCH

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


10.001  Policy.

    (a) * * *
    (3) * * *
    (ix) 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);
    (ii) The ICT will be developed, installed, configured and 
maintained to support users with disabilities;

[[Page 44232]]

    (2) The applicable ICT accessibility standards (see subpart 39.2); 
and
    (3) Any ICT accessibility standards that cannot be met due to an 
exception or an exemption for any component or portion of the product 
(see 7.105(b)(5)(iv), 39.204, and 39.205).
* * * * *

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. In section 39.101 amend paragraph (a)(1)(i) by removing the word 
``accommodations'' and adding the word ``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--
0
a. Revising paragraph (a); and
0
b. Removing from paragraph (c) introductory text the term ``EIT'' and 
adding the term ``ICT'' in its place.
    The revision reads 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 the Architectural and Transportation 
Barriers Compliance Board's (U.S. Access Board) 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 order or delivery order. At the time of issuance of a task 
order or delivery order under an indefinite-quantity contract, the 
requiring and ordering activities shall ensure compliance with the ICT 
accessibility standards and document an exception or exemption if 
applicable. Any task order or delivery order, or portion thereof, 
issued for a noncompliant ICT item shall be supported by the 
appropriate exception or exemption documented by the requiring 
activity.
    (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--
    (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. The portions of ICT that are 
operable parts (i.e., hardware-based user controls for activating, 
deactivating, or adjusting ICT) or status indicators, and 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 paragraph (a)(1), (2), 
or (3) of this section, applies to the ICT supply or service (see 
7.105(b)(5)(iv)). This documentation shall be maintained in the 
contract file.


39.205   Exemptions.

    (a) Allowable exemptions. 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

[[Page 44233]]

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. 2021-16363 Filed 8-10-21; 8:45 am]
BILLING CODE 6820-14-P