Scope

Updated: June 21, 2001

Purpose

The purpose of this technical assistance document is to ensure successful implementation of section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d). Section 508 requires that when Federal agencies develop, procure, maintain, or use electronic and information technology, Federal employees with disabilities have access to and use of information and data that is comparable to the access and use by Federal employees who are not individuals with disabilities, unless an undue burden would be imposed on the agency. Section 508 also requires that individuals with disabilities, who are members of the public seeking information or services from a Federal agency, have access to and use of information and data that is comparable to that provided to the public who are not individuals with disabilities, unless an undue burden would be imposed on the agency.

Technical assistance materials are designed to allow individuals and organizations to understand how to design, develop, and procure EIT to meet the compliance requirements to ensure the accessible use of Federal EIT. In order to highlight and share information, the Access Board intends on adding information, examples, and resources to this online document. Furthermore, Frequently Asked Questions (FAQs), links to related Final Rule language, and training materials will be available as the document grows.

For more information on this project, please contact the Access Board.

Application

(a) Products covered by section 508 shall comply with all applicable provisions of these standards. When developing, procuring, maintaining, or using electronic and information technology, each agency shall ensure that the products comply with the applicable provisions of these standards, unless an undue burden would be imposed on the agency.

This section specifies what electronic and information technology is covered by the standards. For example, a computer and its software programs would be required to comply with §1194.26, Desktop and portable computers, §1194.21, Software applications and operating systems, and the functional performance criteria in §1194.31. Paragraph (a) states the general statutory requirement for electronic and information technology that must comply with the standards unless doing so would result in an undue burden. The term "undue burden" is defined at §1194.4 (Definitions).

(1) When compliance with the provisions of these standards imposes an undue burden, agencies shall provide individuals with disabilities with the information and data involved by an alternative means of access that allows the individual to use the information and data.

For example, a Federal agency wishes to purchase a computer program that generates maps denoting regional demographics. If the agency determines that it would constitute an undue burden to purchase an accessible version of such a program, the agency would be required to make the information provided by the program available in an alternative means to users with disabilities. In addition, the requirements to make reasonable accommodations for the needs of an employee with a disability under section 501 and to provide overall program accessibility under section 504 of the Rehabilitation Act also apply.

(2) When procuring a product, if an agency determines that compliance with any provision of these standards imposes an undue burden, the documentation by the agency supporting the procurement shall explain why, and to what extent, compliance with each such provision creates an undue burden.

This documentation must explain in detail which provision or provisions of this rule impose an undue burden and the extent of such a burden. The agency should discuss each of the factors considered in its undue burden analysis.

(b) When procuring a product, each agency shall procure products which comply with the provisions in these standards when such products are available in the commercial marketplace or when such products are developed in response to a Government solicitation. Agencies cannot claim a product as a whole is not commercially available because no product in the marketplace meets all the standards. If products are commercially available that meet some but not all of the standards, the agency must procure the product that best meets the standards.

The concept of commercial availability is based on existing provisions in the FAR (see 48 CFR 2.101, Definitions of Words and Terms: Commercial item).

With respect to documentation, Federal agencies may choose to document a determination that a product is not available in the commercial marketplace in anticipation of a subsequent inquiry. However, such documentation is not required by section 508.

Similar to an undue burden analysis, agencies cannot claim that a product as a whole is not commercially available because no product in the marketplace meets all the standards. If products are commercially available that meet some but not all of the standards, the agency must procure the product that best meets the standards.

(c) Except as provided by §1194.3(b), these standards apply to electronic and information technology developed, procured, maintained, or used by agencies directly or used by a contractor under a contract with an agency which requires the use of such product, or requires the use, to a significant extent, of such product in the performance of a service or the furnishing of a product.

Consistent with section 5002(3)(C) of the Clinger-Cohen Act of 1996 (40 U.S.C. 1452) and as further discussed in section 1194.3(b) below, products used by a contractor which are incidental to a contract are not covered by this rule. For example, a Federal agency enters into a contract to have a web site developed for the agency. The contractor uses its own office system to develop the web site. The web site is required to comply with this rule since the web site is the purpose of the contract. However, the contractor's office system does not have to comply with these standards, since the equipment used to produce the web site is incidental to the contract. See section 1194.3(b) below.

General Exceptions

(a) These standards do not apply to any electronic and information technology operated by agencies, the function, operation, or use of which involves intelligence activities, cryptologic activities related to national security, command and control of military forces, equipment that is an integral part of a weapon or weapons system, or systems which are critical to the direct fulfillment of military or intelligence missions. Systems which are critical to the direct fulfillment of military or intelligence missions do not include a system that is to be used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications).

This section provides general exceptions from the standards. The exception in paragraph (a) is statutory under section 508 and is consistent with a similar exception in section 5142 of the Clinger-Cohen Act of 1996. This exception does not apply to a system that is to be used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications). For example, software used for payroll, word processing software used for production of routine documents, ordinary telephones, copiers, fax machines, and web applications must still comply with the standards even if they are developed, procured, maintained, or used by an agency engaged in intelligence or military activities. The Board understands that the Department of Defense interprets this to mean that a computer designed to provide early missile launch detection would not be subject to these standards, nor would administrative or business systems that must be architecturally tightly coupled with a mission- critical, national security system, to ensure interoperability and mission accomplishment.

(b) These standards do not apply to electronic and information technology that is acquired by a contractor incidental to a contract.

The products a contractor develops, procures, maintains, or uses which are not specified as part of a contract with a Federal agency are not required to comply with these standards. For example, a consulting firm that enters into a contract with a Federal agency to produce a report is not required to procure accessible computers and word processing software to produce the report regardless of whether those products were used exclusively for the government contract or used on both government and non-government related activities since the purpose of the contract was to procure a report. Similarly, if a firm is contracted to develop a web site for a Federal agency, the web site created must be fully compliant with these standards, but the firm's own web site would not be covered.

(c) Except as required to comply with the provisions in these standards, section 508 does not require the 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.

Specific accessibility related software means software that has the sole function of increasing accessibility for persons with disabilities to other software programs (e.g., screen magnification software). The purpose of section 508 and these standards is to build as much accessibility as is reasonably possible into general products developed, procured, maintained, or used by agencies. It is not expected that every computer will be equipped with a refreshable Braille display, or that every software program will have a built-in screen reader. Such assistive technology may be required as part of a reasonable accommodation for an employee with a disability or to provide program accessibility. To the extent that such technology is necessary, products covered by these standards must not interfere with the operation of the assistive technology.

(d) When agencies provide access to the public to information or data through electronic and information technology, agencies are not required to make products owned by the agency available for access and use by individuals with disabilities at a location other than that where the electronic and information technology is provided to the public, or to purchase products for access and use by individuals with disabilities at a location other than that where the electronic and information technology is provided to the public.

For example, if an agency provides an information kiosk in a Post Office, a means to access the kiosk information for a person with a disability need not be provided in any location other than at the kiosk itself.

(e) This part shall not be construed to require a fundamental alteration in the nature of a product or its components.

Fundamental alteration is an appropriate exception for inclusion in the standards. It means a change in the fundamental characteristic or purpose of the product or service, not merely a cosmetic or aesthetic change. For example, an agency intends to procure pocket-sized pagers for field agents for a law enforcement agency. 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, that is to provide a communication device which fits in a shirt or jacket pocket. For some of these agents, portability of electronic equipment is a paramount concern. Generally, adding access should not change the basic purpose or characteristics of a product in a fundamental way.

(f) Products located in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment are not required to comply with these standards.

In Paragraph (f), the Board has provided an exception that products located in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment are not required to comply with these standards.

Definitions

Agency. Any Federal department or agency, including the United States Postal Service.

Alternate formats. Alternate formats usable by people with disabilities may include, but are not limited to, Braille, ASCII text, large print, recorded audio, and electronic formats that comply with this part.
Certain product information is required to be made available in alternate formats to be usable by individuals with various disabilities.

Alternate methods. Different means of providing information, including product documentation, to people with disabilities. Alternate methods may include, but are not limited to, voice, fax, relay service, TTY, Internet posting, captioning, text-to-speech synthesis, and audio description.

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.The definition was derived from the definition of assistive technology in the Assistive Technology Act of 1998 (29 U.S.C. 3002).

Electronic and information technology. 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 electronic and information technology includes, but is not limited to, telecommunications 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, are not information technology.

This is the statutory term for the products covered by the standards in this part. The term is consistent with the definition of information technology in the Clinger-Cohen Act of 1996.

Information technology includes computers, ancillary equipment, software, firmware and similar procedures, services (including support services), and related resources. Electronic and information technology includes information technology products like those listed above as well as telecommunications products (such as telephones), information kiosks and transaction machines, World Wide Web sites, multimedia, and office equipment such as copiers, and fax machines.

Consistent with the FAR, the Board proposed that electronic and information technology 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, are not information technology.

Information technology. 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. The term information technology includes computers, ancillary equipment, software, firmware and similar procedures, services (including support services), and related resources.

The definition of information technology is identical to that in the Clinger-Cohen Act.

Operable controls. A component of a product that requires physical contact for normal operation. Operable controls include, but are not limited to, mechanically operated controls, input and output trays, card slots, keyboards, or keypads.
Examples of operable controls on/off switches, buttons, dials and knobs, mice, keypads and other input devices, copier paper trays (both input and output), coin and card slots, card readers, and similar components. Operable controls do not include voice-operated controls. This definition is intended to apply to products in their normal operation rather than when the product may be used for maintenance, repair, or occasional monitoring. For example, a user should be able to add paper to a desktop laser printer.

Product. Electronic and information technology.

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.
The definition for telecommunications is consistent with the definition in the Board's Telecommunications Act Accessibility Guidelines and the definition of telecommunications in the Telecommunications Act.

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.
The definition for the term TTY is consistent with the definition of TTY in the Board's ADA Accessibility Guidelines and Telecommunications Act Accessibility Guidelines.

Undue burden. Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, an agency shall consider all agency resources available to the program or component for which the product is being developed, procured, maintained, or used.

The term "undue burden" is based on case law interpreting section 504 of the Rehabilitation Act (Southeastern Community College v. Davis, 442 U.S. 397 (1979)), and has been included in agency regulations issued under section 504 since the Davis case. See, e.g., 28 CFR 39.150. The term undue burden is also used in Title III of the ADA, 42 U.S.C. 12182 (b)(2)(A)(iii). The legislative history of the ADA states that the term undue burden is derived from section 504 and the regulations thereunder, and is analogous to the term "undue hardship" in Title I of the ADA, which Congress defined as "an action requiring significant difficulty or expense." 42 U.S.C. 12111(10)(A). See, H. Rept. 101-485, pt. 2, at 106.

Title I of the ADA lists factors to be considered in determining whether a particular action would result in an undue hardship. 42 U.S.C.12111(10)(B)(i)-(iv). However, since title I of the ADA addresses employment and the individual accommodation of employees, not all of the factors are directly applicable to section 508 except for the financial resources of the covered facility or entity which is necessary to a determination of "significant difficulty or expense." Unlike title I, section 508 requires that agencies must procure accessible electronic and information technology regardless of whether they have employees with disabilities. Requiring agencies to purchase accessible products at the outset eliminates the need for expensive retrofitting of an existing product when requested by an employee or member of the public as a reasonable accommodation at a later time.

The provision states that "agency resources available to a program or component" are to be considered in determining whether an action is an undue burden. Because available financial resources vary greatly from one agency to another, what constitutes an undue burden for a smaller agency may not be an undue burden for another, larger agency having more resources to commit to a particular procurement. Each procurement would necessarily be determined on a case-by-case basis. Because a determination of whether an action would constitute an undue burden is made on a case-by-case basis, it would be inappropriate for the Board to assess a set percentage for the increased cost of a product that would be considered an undue burden in every case.

Equivalent Facilitation

Nothing in these standards is intended to prevent the use of designs or technologies as alternatives to those prescribed in this part provided they result in substantially equivalent or greater access to and use of a product for people with disabilities.

This provision is not a "waiver" or "variance" from the requirement to provide accessibility, but a recognition that future technologies may be developed, or existing technologies could be used in a particular way, that could provide the same functional access in ways not envisioned by these standards. In evaluating whether a technology results in "substantially equivalent or greater access," it is the functional outcome, not the form, which is important. For example, an information kiosk which is not accessible to a person who is blind might be made accessible by having a telephone handset that connects to a computer that responds to touch-tone commands and delivers the same information audibly. In addition, voice recognition and activation are progressing rapidly so that voice input soon may become a reasonable substitute for some or all
keyboard input functions. For example, already some telephones can be dialed by voice. In effect, compliance with the performance criteria of §1194.31 is the test for Equivalent Facilitation.