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

See also: Final Rule published to the Federal Register 1/18/17 that jointly updates requirements for ICT covered by Section 508 of the Rehabilitation Act and Section 255 of the Communication Act.

Subpart A -- General (Preamble, Section-by-Section Analysis)

Section 1194.1 Purpose (Preamble, Section-by-Section Analysis)

This section describes the purpose of the standards which is to implement section 508 of the Rehabilitation Act of 1973, as amended by the Workforce Investment Act of 1998. No substantive comments were received and no changes have been made to this section in the final rule.

Section 1194.2 Purpose (Preamble, Section-by-Section Analysis)

This section specifies what electronic and information technology is covered by the standards. Electronic and information technology covered by section 508 must comply with each of the relevant sections of this part. 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) and is discussed in the preamble under that section.

Paragraph (a)(1) states the statutory obligation of a Federal agency to make information and data available by an alternative means when complying with the standards would result in an undue burden. 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.

Comment. The National Federation of the Blind (NFB) suggested that additional language be added that would require agencies to provide information by an alternative means at the same time the information and data are made available to others.

Response. This paragraph restates the general statutory requirement to provide an alternative means of providing an individual the use of the information and data. Providing individuals with information and data by an alternative means necessarily requires flexibility and will generally be dealt with on a case-by-case approach. Although, the Board agrees that information provided by an alternative means should be provided at generally the same time as the information is made available to others, the provision provides the needed flexibility to ensure that agencies can make case-by-case decisions. No substantive changes were made in the final rule.

Paragraph (a)(2) sets forth the statutory requirement for an agency to document any claim of undue burden in a procurement. Such 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.

Comment. The General Services Administration was concerned that this provision was too limiting because it only referred to products which are procured by the Federal Government and did not include products which are developed, maintained, or used. The American Council of the Blind (ACB) recommended that the requirement for documentation apply when agencies claim the lack of commercially available accessible equipment or software. The NFB commented that there should be a requirement for agencies to explain the specific alternate means to be used to provide information or data. Without such a requirement, they argued, persons with disabilities must be knowledgeable enough to inquire about an alternate means after first discovering that the product used for the information and data is not accessible. Although agencies would be expected to know in advance when products will not be accessible, persons with disabilities will not have this information until encountering the problem.

Response. Paragraph (a)(2) addresses the documentation of undue burden. By statute, the requirement to document an undue burden applies only to procurements. This rule does not prescribe the needed documentation of a finding of an undue burden but merely restates the statutory requirement that a finding be documented. The FAR is expected to address the needed documentation. No substantive changes have been made in the final rule.

Paragraph (b) states that procurement of products complying with this part is subject to commercial availability. 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).

The proposed rule provided that the standards applied to products which were available in the commercial marketplace; would be available in time to meet an agency's delivery requirements through advances in technology or performance; or were developed in response to a Government solicitation. As noted in the preamble, this language was derived from the definition for "commercial item" in the FAR cited above. The preamble to the proposed rule stated that the determination of commercial availability is to be applied on a provision by provision basis.

Comment. A number of commenters sought further clarification of this provision. Several commenters from the information technology industry and some Federal agencies were concerned that the concept of what is commercially available was more appropriately within the jurisdiction of the Federal Acquisition Regulatory Council. The American Foundation for the Blind (AFB) and the ACB wanted agencies to document their determination that a product was not commercially available similar to what is required under undue burden. The ITAA commented that commercial availability should not be applied on a provision by provision basis.

Response. The Board agrees that the FAR is the appropriate venue for addressing commercial availability. The Board believes that the concept of commercial availability is captured in the FAR definition of "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. The final rule has been modified to clarify this application.

Paragraph (c) applies this rule to electronic and information technology developed, procured, maintained, or used by an agency directly or used by a contractor pursuant to a contract with an agency.

Comment. The ITAA commented that this provision conflicts with section 508. For example, they commented that if a contract required a vendor to purchase and maintain a specific computer system for the purpose of gathering and relaying certain data to an agency, the standards would apply to such a computer system even if the system would be used only by vendor employees. In addition, ITAA commented that this is not a technical and functional performance criterion, and should be addressed by the FAR.

Response. 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. No changes were made to this provision in the final rule.

Section 1194.3 General Exceptions (Preamble, Section-by-Section Analysis)

This section provides general exceptions from the standards. Paragraph (a) provides an exception for telecommunications or information systems 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. This exception 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. No substantive comments were received and no changes have been made to this section in the final rule.

Paragraph (b) provides an exception for electronic and information technology that is acquired by a contractor incidental to a Federal contract. That is, 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 this part. 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 this part, but the firm's own web site would not be covered. No substantive comments were received and no changes have been made to this section in the final rule.

Paragraph (c) clarifies that, except as required to comply with these standards, this part 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 which 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 this part must not interfere with the operation of the assistive technology. No substantive comments were received and no changes have been made to this section in the final rule.

Paragraph (d) specifies that when agencies provide access to information or data to the public through electronic and information technology, agencies are not required to make equipment 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 equipment 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.

Comment. The ACB commented that where a location is not accessible, an agency must provide the information in a location that is accessible to people with disabilities.

Response. This paragraph restates the general statutory requirement that when agencies provide access to information or data to the public through electronic and information technology, the agencies are not required to make equipment 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 equipment 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. The accessibility of the location would be addressed under section 504 of the Rehabilitation Act or other Federal laws. No substantive changes were made in the final rule.

Paragraph (e) states that compliance with this part does not require a fundamental alteration in the nature of a product or service or its components.

Comment. The AFB commented that fundamental alteration is not an appropriate factor to include in this rule since the statute provides undue burden as the proper protection and allowing a fundamental alteration exemption weakens the intent of the statute and its high expectations of government. If the concept of fundamental alteration is maintained, AFB recommended that it be part of an explanation of undue burden. The Department of Commerce agreed that the inclusion of a fundamental alteration exception would negate the purpose of section 508. The Trace Research and Development Center said that the term should be defined.

The Information Technology Industry Council (ITIC) commented that the Board should expand the concept of fundamental alteration by stating that an agency should not be required to fundamentally alter the nature of a program or service that the agency offers.

Response. 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.

Comment. The ITAA commented that telecommunications equipment switches, servers, and other similar "back office" equipment which are used for equipment maintenance and administration functions should be exempt from the standards. For example, in the case of telecommunications equipment, technicians might need to configure service databases, remove equipment panels to replace components, or run tests to verify functionality. ITAA commented that section 508 should not apply to these types of products since applying requirements to such products would have serious design and cost ramifications.

Response. The Board agrees and 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 this part. This exception is consistent with a similar exception in the Board's guidelines under the Americans with Disabilities Act (ADA) (§4.1.1 (5)(b) 36 CFR part 1191) and the Architectural Barriers Act (§4.1.2 (5) exception, Uniform Federal Accessibility Standards Appendix A to 41 CFR part 101-19.6).

Section 1194.4 Definitions (Preamble, Section-by-Section Analysis)

Accessible. The term accessible was defined in the proposed rule in terms of compliance with the standards in this part, as is common with other accessibility standards. As proposed, if a product complies with the standards in this part, it is "accessible"; if it does not comply, it is not accessible.

Comment. The Trace Research and Development Center (Trace Center) and the General Services Administration commented that the proposed definition of accessible would mean that products can be declared "accessible" if they are merely compatible with assistive technology and that the definition of accessible was being used as a measure of compliance. The Trace Center commented that the problem with this approach is that a product could have few or no accessibility features because it was an undue burden and still be considered accessible.

Response. Although the term accessible was used sparingly in the proposed rule, the Board agrees that the definition may be problematic. The term as used in the proposed rule was in fact addressing products which comply with the standards. Products covered by this part are required to comply with all applicable provisions of this part. Accordingly, the definition has been eliminated in the final rule and the term accessible is not used in the text of the final rule. A product is compliant with the requirements of section 508 of the Rehabilitation Act of 1973 (as amended by the Workforce Investment Act of 1998) by meeting all the applicable provisions of part 1194.

Agency. The term agency includes any Federal department or agency, including the United States Postal Service. No substantive comments were received regarding this definition and no changes have been made in the final rule.

Alternate formats. Certain product information is required to be made available in alternate formats to be usable by individuals with various disabilities. Consistent with the Board's Telecommunications Act Accessibility Guidelines (36 CFR part 1193), the proposed rule defined alternate formats as those formats which are usable by people with disabilities. The proposed definition noted that the formats may include Braille, ASCII text, large print, recorded audio, and accessible internet programming or coding languages, among others. ASCII refers to the American Standard Code for Information Interchange, which is an American National Standards Institute (ANSI) standard defining how computers read and write commonly used letters, numbers, punctuation marks, and other codes.

Comment. One commenter was concerned that the term "accessible internet programming or coding languages" used in the description of acceptable alternate formats was somewhat ambiguous and recommended using the term "accessible internet formats".

Response. The Board agrees that the term "accessible internet programming or coding languages" may be vague. In addition, as noted above, the final rule will not include the term "accessible". The definition for alternate formats has been modified to refer to "electronic formats which comply with this part". This change will permit, for instance, alternate formats to include a computer file (either on the internet or saved on a computer disk) that can be viewed by a browser and which complies with the standards for web pages. No other changes have been made to the definition in the final rule.

Alternate methods. The proposed rule used the term "alternate modes" which was defined as different means of providing information to users of products, including product documentation, such as voice, fax, relay service, TTY, internet posting, captioning, text-to-speech synthesis, and audio description.

Comment. One commenter suggested that "alternate methods" would be a better term to describe the different means of providing information. The commenter was concerned that the term alternate modes would be confused with alternate modes of operation of the product itself which does not necessarily refer to how the information is provided.

Response. The Board agrees that the term alternate methods is a more descriptive and less confusing term than the term alternate modes. Other than the change in terminology from alternate modes to alternate methods, no other changes have been made to the definition in the final rule.

Assistive technology. Assistive technology is defined as 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). The preamble to the proposed rule noted that assistive technology may include screen readers which allow persons who cannot see a visual display to either hear screen content or read the content in Braille, specialized one-handed keyboards which allow an individual to operate a computer with only one hand, and specialized audio amplifiers that allow persons with limited hearing to receive an enhanced audio signal. No substantive comments were received regarding this definition and no changes have been made in the final rule.

Electronic and information technology. This is the statutory term for the products covered by the standards in this part. The statute explicitly required the Board to define this term, and required the definition to be consistent with the definition of information technology in the Clinger-Cohen Act of 1996. The Board's proposed definition of information technology was identical to that in the Clinger-Cohen Act. Electronic and information technology was defined in the proposed rule to include information technology, as well as any equipment or interconnected system or subsystem of equipment, that is used in the creation, conversion, or duplication of data or information.

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,4 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.

Comment. Several commenters recommended that the exception for HVAC control devices and medical equipment be revised in the final rule. The commenters were concerned that the exception was too broad in that it exempted equipment such as medical diagnostic equipment that they felt should be covered by the rule. In addition, the National Association of the Deaf (NAD) requested that public address systems, alarm systems, and two-way communications systems such as intercoms be expressly included as electronic and information technology.

Response. The exemption is consistent with existing definitions for information technology in the FAR. Public address systems, alarm systems, and two-way communications systems are already addressed by the Americans with Disabilities Act Accessibility Guidelines and will be addressed in more detail in the Board's guidelines under the Architectural Barriers Act which apply to Federal facilities. No changes have been made to the definition in the final rule.

 

4 48 CFR Chapter 1, part 2, §2.101 Definitions Information Technology (c).

Information technology. The definition of information technology is identical to that in the Clinger-Cohen Act, that is, 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. Information technology includes computers, ancillary equipment, software, firmware and similar procedures, services (including support services), and related resources. No substantive comments were received regarding this definition and no changes have been made in the final rule.

Operable controls. The proposed rule defined operable controls as those components of a product that require physical contact for normal operation of the device. Examples of operable controls were provided, including on/off switches, buttons, dials and knobs, mice, keypads and other input devices, copier paper trays (both for inserting paper to be copied and retrieving finished copies), coin and card slots, card readers, and similar components. The proposed rule also clarified that operable controls do not include voice-operated controls.

Comment. One commenter was concerned that the term paper trays was confusing and interpreted it to mean the large trays on a copier which are loaded with reams of paper for copying. The commenter suggested that the term input and output trays be used instead.

Response. The Board agrees that input and output trays are more descriptive. The final rule reflects this change which 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. No other changes have been made to this definition.

Product. The term product is used in the rule as a shorthand for electronic and information technology. No substantive comments were received regarding this definition and no changes have been made in the final rule.

Self contained, closed products. This term was not used in the proposed rule and is provided in the final rule as a result of the reorganization of the standards. Self contained, closed products, are those 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 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. No substantive comments were received regarding this definition and no changes have been made in the final rule.

TTY. TTYs are machinery or equipment that employ interactive text based communications through the transmission of coded signals across the telephone network.

Comment. The Trace Center recommended adding the word "baudot" to the definition of TTY to clarify that the term is not meant to be broader than baudot TTYs. The NAD and other consumer groups, however, supported the Board's definition and encouraged the Board to use the same definition consistently.

Response. 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. No changes have been made to the definition in the final rule.

Undue burden. The final rule defines the term undue burden as "significant difficulty or expense." In determining what is a significant difficulty or expense, each agency must consider the resources available to the program or component for which the product is being developed, maintained, used or procured. The proposed rule defined undue burden as an action that would result in significant difficulty or expense considering all agency resources available to the agency or component. The Board sought comment in the NPRM on two additional factors (identified as factor (2) and factor (3) in the preamble) for agencies to consider in assessing a determination of an undue burden. Factor (2) addressed the compatibility of an accessible product with the agency's or component's infrastructure, including security, and the difficulty of integrating the accessible product. Factor (3) concerned the functionality needed from the product and the technical difficulty involved in making the product accessible.

Comment. The ITAA, ITIC and the Oracle Corporation opposed the inclusion of a definition for undue burden in the final rule. Both the ITAA and the ITIC commented that defining undue burden was beyond the Board's authority. Oracle suggested that the concept of undue burden under section 508 was beyond the Board's expertise in that it was a procurement matter. The commenters were also concerned that the Board's definition was too narrow. Alternatively, if the Board was to adopt a definition for undue burden, the ITAA favored adoption of the factors associated with undue burden and undue hardship in the ADA and section 504 of the Rehabilitation Act. In particular, the ITAA recommended adoption of the "nature and cost" of the accommodation as a factor for consideration. ITIC favored adoption of the employment factors in title I of the ADA if the Board were to include a definition of undue burden. Both the ITAA and the ITIC also favored the adoption of factors (2) and (3) identified in the NPRM if undue burden was to be addressed in the final rule.

The remainder and majority of the commenters did not address the issue of whether the Board should adopt a definition of undue burden, but rather how to define it. At least two Federal agencies and 10 organizations representing persons with disabilities opposed the inclusion of factors (2) and (3) suggested in the NPRM. The Department of Commerce and a majority of advocacy organizations representing people with disabilities opposed factors (2) and (3) on the grounds that the factors would create a loophole for agencies to avoid compliance with section 508. The Department of Veterans Affairs opposed factor (3) as it considered that factor to be more about job assignment than undue burden. Several commenters including Sun Microsystems and Adobe Systems favored adopting factors (2) and (3) in the definition of undue burden. The Social Security Administration (SSA) and the Department of Health and Human Services, Administration for Children and Families, sought guidance as to the amount of increased cost of a product that would not constitute undue burden regardless of an agency's overall budget. Citing the example of a product that would cost 25 percent more to comply with the standards, the SSA questioned whether that would be undue or would 10 percent or 50 percent be considered undue. The General Services Administration recommended basing the financial resources available to an agency on a program basis.

Response. The term undue burden is based on caselaw 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. In the NPRM, the Board proposed adoption of "significant difficulty or expense" as the definition for undue burden. No changes were made to that aspect of the definition in the final rule.

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.

In determining whether a particular action is an undue burden under section 508, the proposed rule provided that the resources "available" to an "agency or component" for which the product is being developed, procured, maintained, or used is an appropriate factor to consider. The language was derived from the section 504 federally conducted regulations. Those regulations limited the consideration of resources to those resources available to a "program". The preamble to the proposed rule noted that an agency's entire budget may not be available for purposes of complying with section 508. Many parts of agency budgets are authorized for specific purposes and are thus not available to other programs or components within the agency. The definition of undue burden has been clarified in the final rule to more clearly reflect this limitation. The provision now 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.

The Board has not included factors (2) and (3) in the text of the final rule. While the Board acknowledges that these may be appropriate factors for consideration by an agency in determining whether an action is an undue burden, factors (2) and (3) were not based on established caselaw or existing regulations under section 504. Further, the Board recognizes that undue burden is determined on a case-by-case basis and that factors (2) and (3) may not apply in every determination. Agencies are not required to consider these factors and may consider other appropriate factors in their undue burden analyses.

Comment. Adobe Systems questioned whether a product which does not meet a provision based on a finding of undue burden, has to comply with the remaining provisions.

Response. The undue burden analysis is applied on a provision by provision basis. A separate undue burden analysis must be conducted and, in the case of procurements, be documented for each applicable provision.

1194.5 Equivalent facilitation. (Preamble, Section-by-Section Analysis)

This section allows the use of designs or technologies as alternatives to those prescribed in this part provided that 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.

Comment. Commenters supported the Board in its recognition that accessibility may sometimes be attained through products that do not strictly comply with design standards. Several commenters supported this concept because they believed that it will result in the development of better access solutions for individuals with disabilities.

Response. No changes have been made to this provision in the final rule.

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