36 CFR Part 1194 Electronic and Information Technology Accessibility Standards (Section 508 Standards) - Preamble

General Issues

This section of the preamble addresses general issues raised by comments filed in response to the NPRM. Individual provisions of the rule are discussed in detail under the Section-by-Section Analysis below.

Effective Date for the Enforcement of Section 508

Section 508(a)(2)(A) required the Board to publish final standards for accessible electronic and information technology by February 7, 2000. Section 508(a)(3) provides that within six months after the Board publishes its standards, the Federal Acquisition Regulatory Council is required to revise the Federal Acquisition Regulation (FAR), and each Federal agency is required to revise the Federal procurement policies and directives under its control to incorporate the Board's standards.³

Because of the delay in publishing the standards, the proposed rule sought comment on making the standards effective six months after publication in the Federal Register to provide Federal agencies an opportunity to more fully understand the new standards and allow manufacturers of electronic and information technology time to ensure that their products comply with the standards before enforcement actions could be initiated. The NPRM noted that postponing the effective date of the Board's standards could not affect the right of individuals with disabilities to file complaints for electronic and information technology procured after August 7, 2000 since that right was established by the statute.

Comment. There was a general consensus that a delay in the effective date of the standards was warranted to provide a reasonable period of time for industry to bring their products into compliance with the Board's standards.

Response. On July 13, 2000, President Clinton signed into law the Military Construction Appropriations Act for Fiscal Year 2001 (Public Law 106-246) which included an amendment to section 508 of the Rehabilitation Act. Under the amendment, the effective date for the enforcement of section 508 was delayed to allow for additional time for compliance with the Board's final standards. As originally written, the enforcement provisions of section 508 would have taken effect on August 7, 2000. The amendment in Public Law 106-246 revises the enforcement date to 6 months from publication of the Board's final standards, consistent with the law's intent. As a result of the amendment, there is no need to delay the effective date of the standards. The effective date for the standards is largely an administrative provision and does not affect the date by which complaints may be filed under section 508. Complaints and lawsuits may be filed 6 months from the date of publication of these standards in the Federal Register.

Technical and Functional Performance Criteria

Section 508 (a)(2)(A)(ii) requires the Board to develop technical and functional performance criteria necessary to implement the requirements of section 508.

Comment. The Information Technology Association of America (ITAA) commented that the specificity of many of the proposed provisions go beyond what may be characterized as technical and functional performance criteria. ITAA commented that the statute intended that the standards be set forth in terms of technical and functional performance criteria as opposed to technical design requirements. Performance criteria are intended to give discretion in achieving the required end result. ITAA commented that product developers, who have a broad understanding of their own products, industry standards, and future trends need this discretion to meet the requirements of section 508 and that it is impossible to predict accurately future technological advances. Design requirements, they added, inhibit development and innovation. ITAA was concerned that many of the proposed provisions would impede technological advancements because they were too specific. On the other hand, ITAA supported proposed §1194.5, Equivalent Facilitation, because it would lessen the adverse impact of the specific requirements.

Response. According to administration policy, performance standards are generally to be preferred to engineering or design standards because performance standards provide the regulated parties the flexibility to achieve the regulatory objective in a more cost-effective way. The Board was given the responsibility to develop technical and functional performance criteria necessary to implement the requirements of section 508. Thus, the standards provide technical requirements as well as functional performance criteria. The standards reflect the need to be as descriptive as possible because procurement officials and others need to know when compliance with section 508 has been achieved and because the failure to meet the standards can result in an enforcement action. Several provisions, such as those regarding time-out features, have been revised in the final rule to be more performance oriented rather than specific design standards.

³ Whenever the Access Board revises its standards, the Federal Acquisition Regulatory Council is required to revise the FAR, and each appropriate Federal agency is required to revise its procurement policies and directives within six months to incorporate the revisions.