Attachment 2 - Section 508 Determination.pdf

H9821025RE014

Attachment 2 – Section 508 Determination

Additional Reference Information:

Products Considered ICT

Examples of ICT include but are not limited to:

• Computers and peripheral equipment

• Information kiosks and transaction machines that provide information in public places such as Federal buildings and hospitals.

• Telecommunications equipment (telephones, telephone systems)

• Customer premises equipment (servers, routers)

• Multifunction office machines that scan, fax, print, etc.

• Software, applications, and websites

• Videos

• Electronic documents (e.g., PDF, Word, Excel, and PowerPoint)

Definitions:

Electronic Content: Electronic information and data, as well as the encoding that defines its structure, presentation, and interactions.

Hardware: A tangible device, equipment, or physical component of ICT, such as telephones, computers, multifunction copy machines, and keyboards.

Software: Programs, procedures, rules, and related data and documentation that direct the use and operation of ICT and instruct it to perform a given task or function. Software includes, but is not limited to, applications, non-Web software, and platform software.

Document: Logically distinct assembly of content (such as a file, set of files, or streamed media) that:

Functions as a single entity rather than a collection; is not part of software; and does not include its own software to retrieve and present content for users. Examples of documents include, but are not limited to, letters, email messages, spreadsheets, presentations, podcasts, images, and movies.

E201.1 Scope. ICT that is procured, developed, maintained, or used by agencies shall conform to the Revised 508 Standards.

E202 General Exceptions

E202.1 General. ICT shall be exempt from compliance with the Revised 508 Standards to the extent specified by E202.

E202.2 Legacy ICT. Any component or portion of existing ICT that complies with an earlier standard issued pursuant to Section 508 of the Rehabilitation Act of 1973, as amended (as republished in Appendix D), and that has not been altered on or after January 18, 2018, shall not be required to be modified to conform to the Revised 508 Standards.

E202.3 National Security Systems. The Revised 508 Standards do not apply to ICT operated by agencies as part of a national security system, as defined by 40 U.S.C. 11103(a).

E202.4 Federal Contracts. ICT acquired by a contractor incidental to a contract shall not be required to conform to the Revised 508 Standards.

https://www.govinfo.gov/link/uscode/40/11103

E202.5 ICT Functions Located in Maintenance or Monitoring Spaces. Where status indicators and operable parts for ICT functions are located in spaces that are frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment, such status indicators and operable parts shall not be required to conform to the Revised 508 Standards.

E202.6 Undue Burden or Fundamental Alteration. Where an agency determines in accordance with E202.6 that conformance to requirements in the Revised 508 Standards would impose an undue burden or would result in a fundamental alteration in the nature of the ICT, conformance shall be required only to the extent that it does not impose an undue burden, or result in a fundamental alteration in the nature of the ICT.

E202.6.1 Basis for a Determination of Undue Burden. In determining whether conformance to requirements in the Revised 508 Standards would impose an undue burden on the agency, the 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 is to be procured, developed, maintained, or used.

E202.6.2 Required Documentation. The responsible agency official shall document in writing the basis for determining that conformance to requirements in the Revised 508 Standards constitute an undue burden on the agency, or would result in a fundamental alteration in the nature of the ICT. The documentation shall include an explanation of why and to what extent compliance with applicable requirements would create an undue burden or result in a fundamental alteration in the nature of the ICT.

E202.6.3 Alternative Means. Where conformance to one or more requirements in the Revised 508 Standards imposes an undue burden or a fundamental alteration in the nature of the ICT, the agency shall provide individuals with disabilities access to and use of information and data by an alternative means that meets identified needs.

E202.7 Best Meets. Where ICT conforming to one or more requirements in the Revised 508 Standards is not commercially available, the agency shall procure the ICT that best meets the Revised 508 Standards consistent with the agency's business needs.

E202.7.1 Required Documentation. The responsible agency official shall document in writing: (a) The non-availability of conforming ICT, including a description of market research performed and which provisions cannot be met, and (b) the basis for determining that the ICT to be procured best meets the requirements in the Revised 508 Standards consistent with the agency's business needs.

E202.7.2 Alternative Means. Where ICT that fully conforms to the Revised 508 Standards is not commercially available, the agency shall provide individuals with disabilities access to and use of information and data by an alternative means that meets identified needs.

E203 Access to Functionality

E203.1 General. Agencies shall ensure that all functionality of ICT is accessible to and usable by individuals with disabilities, either directly or by supporting the use of assistive technology, and shall comply with E203. In providing access to all functionality of ICT, agencies shall ensure the following:

A. That 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; and

B. That members of the public with disabilities who are seeking information or data from a Federal agency have access to and use of information and data that is comparable to that provided to members of the public who are not individuals with disabilities.

E203.2 User Needs. When agencies procure, develop, maintain or use ICT they shall identify the needs of users with disabilities to determine:

A. How users with disabilities will perform the functions supported by the ICT; and

B. How the ICT will be developed, installed, configured, and maintained to support users with disabilities.

E204 Functional Performance Criteria

E204.1 General. Where the requirements in Chapters 4 and 5 do not address one or more functions of ICT, the functions not addressed shall conform to the Functional Performance Criteria specified in Chapter 3.

E205 Electronic Content

E205.1 General. Electronic content shall comply with E205.

E205.2 Public Facing. Electronic content that is public facing shall conform to the accessibility requirements specified in E205.4.

E205.3 Agency Official Communication. Electronic content that is not public facing shall conform to the accessibility requirements specified in E205.4 when such content constitutes official business and is communicated by an agency through one or more of the following:

A. An emergency notification;

B. An initial or final decision adjudicating an administrative claim or proceeding;

C. An internal or external program or policy announcement;

D. A notice of benefits, program eligibility, employment opportunity, or personnel action;

E. A formal acknowledgement of receipt;

F. A survey questionnaire;

G. A template or form;

H. Educational or training materials; or

I. Intranet content designed as a Web page.

EXCEPTION: Records maintained by the National Archives and Records Administration (NARA) pursuant to Federal recordkeeping statutes shall not be required to conform to the Revised 508 Standards unless public facing.

E205.4 Accessibility Standard. Electronic content shall conform to Level A and Level AA Success Criteria and Conformance Requirements in WCAG 2.0 (incorporated by reference, see 702.10.1).

EXCEPTION: Non-Web documents shall not be required to conform to the following four WCAG 2.0 Success Criteria: 2.4.1 Bypass Blocks, 2.4.5 Multiple Ways, 3.2.3 Consistent Navigation, and 3.2.4 Consistent Identification.

E205.4.1 Word Substitution when Applying WCAG to Non-Web Documents. For non-Web documents, wherever the term “Web page” or “page” appears in WCAG 2.0 Level A and AA Success Criteria and Conformance Requirements, the term “document” shall be substituted for the terms “Web page” and “page”. In addition, in Success Criterion in 1.4.2, the phrase “in a document” shall be substituted for the phrase “on a Web page”.

E206 Hardware

E206.1 General. Where components of ICT are hardware and transmit information or have a user interface, such components shall conform to the requirements in Chapter 4.

E207 Software

E207.1 General. Where components of ICT are software and transmit information or have a user interface, such components shall conform to E207 and the requirements in Chapter 5.

EXCEPTION: Software that is assistive technology and that supports the accessibility services of the platform shall not be required to conform to the requirements in Chapter 5.

E207.2 WCAG Conformance. User interface components, as well as the content of platforms and applications, shall conform to Level A and Level AA Success Criteria and Conformance Requirements in WCAG 2.0 (incorporated by reference, see 702.10.1).

EXCEPTIONS: 1. Software that is assistive technology and that supports the accessibility services of the platform shall not be required to conform to E207.2.

2. Non-Web software shall not be required to conform to the following four Success Criteria in WCAG 2.0: 2.4.1 Bypass Blocks; 2.4.5 Multiple Ways; 3.2.3 Consistent Navigation; and 3.2.4 Consistent Identification.

3. Non-Web software shall not be required to conform to Conformance Requirement 3 Complete Processes in WCAG 2.0.

E207.2.1 Word Substitution when Applying WCAG to Non-Web Software. For non-Web software, wherever the term “Web page” or “page” appears in WCAG 2.0 Level A and AA Success Criteria and Conformance Requirements, the term “software” shall be substituted for the terms “Web page” and “page”. In addition, in Success Criterion in 1.4.2, the phrase “in software” shall be substituted for the phrase “on a Web page.”

E207.3 Complete Processes for Non-Web Software. Where non-Web software requires multiple steps to accomplish an activity, all software related to the activity to be accomplished shall conform to WCAG 2.0 as specified in E207.2.

E208 Support Documentation and Services

E208.1 General. Where an agency provides support documentation or services for ICT, such documentation and services shall conform to the requirements in Chapter 6.

[82 FR 5832, Jan. 18, 2017, as amended at 83 FR 2915, Jan. 22, 2018]

FAR Subpart 39.2 - Information and Communication Technology https://www.federalregister.gov/citation/82-FR-5832 https://www.federalregister.gov/citation/83-FR-2915

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.

(b) Further information on Section 508 is available via the Internet at http://www.section508.gov.

(c) When acquiring ICT, agencies must ensure that—

(1) 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; and

(2) Members of the public with disabilities seeking information or services from an agency have access to and use of information and data that is comparable to the access to and use of information and data by members of the public who are not individuals with disabilities.

39.202 Definition.

Undue burden, as used in this subpart, means a significant difficulty or expense.

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 products and commercial services. When acquiring commercial products and commercial services, 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 https://www.govinfo.gov/link/uscode/29/794?type=usc&year=mostrecent&link-type=html https://www.federalregister.gov/select-citation/2021/08/11/36-CFR-1194.1 http://www.section508.gov/ https://www.acquisition.gov/far/part-39#FAR_39_204 https://www.acquisition.gov/far/part-39#FAR_39_205 https://www.federalregister.gov/select-citation/2021/08/11/36-CFR-1194.1 https://www.acquisition.gov/far/part-39#FAR_39_205 https://www.govinfo.gov/link/uscode/29/794?type=usc&year=mostrecent&link-type=html https://www.govinfo.gov/link/uscode/29/794?type=usc&year=mostrecent&link-type=html https://www.federalregister.gov/select-citation/2021/08/11/36-CFR-1194.1

(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 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 products and commercial services. Where there are no commercial products and commercial services that fully conform to the ICT accessibility standards, the agency shall procure the supplies or service available in the commercial marketplace that https://www.federalregister.gov/select-citation/2021/08/11/36-CFR-1194.1 https://www.acquisition.gov/far/part-39#FAR_39_203 http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title40-section11103&num=0&edition=prelim http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title40-section11103&num=0&edition=prelim https://www.acquisition.gov/far/part-7#FAR_7_105 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 products and commercial services. A determination of commercial products and commercial services 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.

https://www.federalregister.gov/select-citation/2021/08/11/36-CFR-1194.1