1.1 Overview

Section 508 of the Rehabilitation Act Amendments of 1998 requires the Architectural and Transportation Barriers Compliance Board (Access Board) to issue standards setting forth a definition of electronic and information technology, and the technical and functional performance criteria necessary to make such technology accessible to individuals with disabilities. The standards apply to each Federal agency, including the United States Postal Service, unless compliance would impose an undue burden on the agency. There is an exception for national security systems.

The purpose of the standards are to ensure that:

For many types of electronic and information technology the standards focus on compatibility with existing and future assistive technology, such as screen readers. The standards do not require that assistive technology be provided universally. Provision of assistive technology is still governed by the reasonable accommodation requirements of sections 501 and 504 of the Rehabilitation Act. In other words, section 508 does not require that assistive technology be purchased, but it does require that electronic and information technology be capable of having assistive technology added at some later time as necessary. Other types of electronic and information technology do not lend themselves to the modular addition of assistive technology (e.g.,copiers) and are likely to require changes in design that incorporate accessible features into each product.

This economic assessment was prepared to meet the requirements of Executive Order 12866 and other requirements, and to better inform the public about the implications of the standards. The analysis for the final rule is, for all intents and purposes, identical to the analysis submitted in support of the proposed rule. The original analysis was a very broad estimate of the costs and benefits of the standards. None of the substantive changes made in the final rule were of sufficient magnitude to effect these estimates. The changes made in the final rule are largely in the format and organization of the standards. The standards have been reorganized to be clearer and more user friendly.

There have been two changes made in the final rule that could have some effect on the actual costs of the standards.

In addition to these changes, a letter to the President dated September 21, 2000 from the heads of over 40 technology companies and other recent evidence indicate that the software industry is already moving to add accessible features faster than was originally anticipated. This suggests that the costs of doing so is, in fact, quite low and that the original cost estimates for software modification is overstated. We have no means of assessing the magnitude of this overestimate.

We have also added a response to comments in chapter 6 to address the comments submitted on the analysis for the proposed rule.

1.2 Statutory and Regulatory History

Congress originally added section 508 to Title V of the Rehabilitation Act in 1986. Title V of the Rehabilitation Act contains civil rights provisions requiring affirmative action in employment towards individuals with disabilities by the Federal government (29 U.S.C. §791) and by Federal government contractors(29 U.S.C. §793); and prohibiting discrimination on the basis of disability in federally assisted and federally conducted programs and activities (29 U.S.C. §794). In the 1980's Federal agencies significantly increased their dependency on electronic office technology. Section 508 was added to Title V to ensure that such technology would be accessible to individuals with disabilities.

Efforts to ensure access to Federal electronic and information technology actually began a few years earlier. In 1984, the National Institute on Disability and Rehabilitation Research (NIDRR), in conjunction with the Department of Education's Office of Special Education and Rehabilitative Services and the White House, established a Government-Industry Task Force on computer access that brought together representatives from the computer industry and individuals with disabilities. That same year, the General Services Administration (GSA) established the Interagency Committee for Computer Support of Handicapped Employees and the Clearinghouse on Computer Accommodation. Both groups were designed to promote the use of electronic and information technology in a manner that would enhance the productivity of Federal workers with disabilities.

Section 508 originally directed the Secretary of Education to work with NIDRR and GSA on the development of guidelines for accessible electronic office equipment. In October 1987, after consultation with an advisory committee, the Department of Education and GSA issued guidelines that addressed management responsibilities and functional performance specifications for input, output, and documentation access to electronic office equipment. In January 1991, after receiving further comments from Federal agencies, industry, and individuals with disabilities, GSA published Bulletin C-8 containing the amended guidelines in the Federal Information Resources Management Regulations (FIRMR). (2) Section 508 directed Federal agencies to comply with the guidelines issued by GSA. Although several Federal agencies initiated efforts to comply with the guidelines, consistent application across agencies did not occur over the subsequent decade. The lack of an enforcement mechanism in the original legislation contributed to the inconsistent application.

The lack of progress toward fulfilling section 508's objectives prompted the introduction of new legislation designed to strengthen section 508. The Federal Electronic and Information Technology Accessibility Compliance Act was introduced in 1997. With some revision, the language contained in this proposed legislation was ultimately enacted in the Workforce Investment Act of 1998, which included the Rehabilitation Act Amendments of 1998. Pub. L. 105-220, Title IV, §408(b), codified at 29 U.S.C. §794d. The amended section 508 requires Federal agencies to ensure that electronic and information technology they develop, procure, maintain, or use are accessible to both Federal employees with disabilities and members of the public with disabilities, unless doing so would impose an undue burden. Where the procurement of accessible products results in an undue burden, agencies are directed to document why compliance will create an undue burden, and provide the information through an alternative means of access. There is an exception for national security systems.

As amended, section 508 directs the Access Board to issue standards setting forth a definition of electronic and information technology, and technical and functional performance criteria necessary to achieve access to such technology.(3) The amended section 508 directs the Access Board to consult with Federal agencies, the electronic and information technology industry, and organizations representing individuals with disabilities in the course of developing the new section 508 standards. The Access Board has fulfilled this obligation through the Electronic and Information Technology Access Advisory Committee (EITAAC). Within six months after the Access Board publishes the section 508 standards, the Federal Acquisition Regulatory Council must revise the Federal Acquisition Regulations (FAR) to incorporate the standards. Each Federal agency must also revise its procurement policies and directives to incorporate the new section 508 standards. The Access Board and GSA are directed to provide technical assistance on the standards.

The amended section 508 contains a number of new provisions to ensure compliance. First, Federal agencies are required to evaluate and to submit a report to the Attorney General on the extent to which their electronic and information technology is accessible. Based on information provided by the agencies, the Attorney General is directed to prepare biennial reports to the President on the extent to which electronic and information technology used by Federal agencies is accessible. The Attorney General issued the first report in April 2000. Second, individuals can file administrative complaints and civil actions against Federal agencies alleging noncompliance with section 508 when procuring new electronic and information technology. The Military Construction Appropriations Act for Fiscal Year 2001 amended section 508 to provide for the enforcement provisions to take effect six months after the Access Board publishes its final section 508 standards. Pub. L. 106-246. Each Federal agency will process administrative complaints filed under section 508 using the procedures developed under section 504 of the Rehabilitation Act for resolving allegations of discrimination in a federally conducted program or activity. The procedures, remedies, and rights set forth in section 505(a)(2) and 505(b) of the Rehabilitation Act apply to civil actions to enforce section 508.

1.3 Statement of Need

The standards promulgated under section 508 are necessary to:

Market Failure

Manufacturers of electronic and information technology have an economic incentive to sell accessible products to buyers with disabilities. However, there are costs for sellers and buyers to identify and to negotiate with one another. If these transactions cost are too high, manufacturers will not know the accessible products buyers with disabilities would like to purchase. Mutually-beneficial trades among buyers and sellers will not occur, resulting in a market failure.

The Federal government can correct this potential market failure. The Federal government can invest resources to identify the needs of individuals with disabilities for accessible products and communicate those needs to manufacturers. Manufacturers then can produce accessible products. In section 508, Congress required the Access Board to identify the needs of individuals with disabilities and required Federal agencies to procure accessible products that meet those needs.

Procurement System Failure

Procurement regulations give Federal purchasers different incentives than private purchasers. Unless accessible features are included in product specifications, they do not have value and may not be paid for. If purchasing a product with accessible features costs more, procurement regulations would direct purchasing officials to purchase the less expensive product. Incorporating accessibility standards in the FAR corrects an existing regulatory disincentive to procure accessible products.

Civil Rights

Not all government policies are based on maximizing economic efficiency. Even when the market is operating efficiently, there may be groups or individuals who remain "under-served." In these instances it may be socially desirable to provide for more equitable distributions of social welfare to those populations that receive less than their "fair" share of goods and services at the market equilibrium. Congress has decided that making Federal electronic information and technology accessible is a socially preferred choice and is an essential component of civil rights for individuals with disabilities. Traditional economic analysis is ill equipped to make judgements about fairness or equity. Instead, we tend to rely on political processes to make decisions about redistribution of wealth based on equity considerations. While benefit-cost analysis is not dispositive in making equity-based decisions, it can inform the policy makers as they make redistribution decisions.