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Step 2: Determine ICT Exceptions

Identifying whether you can claim an exception for information and communication technology (ICT) items in your Federal IT procurement or development project is the second step in determining how the Revised 508 Standards apply. (The first step is to conduct an inventory.) This is important to ensure that any technology your agency buys or builds will be accessible.

A full list of exceptions is detailed in the Standards under E202 General Exceptions. Use the Revised 508 Standards Applicability Checklist (MS-Word, April 2018) to document ICT exceptions.

Refer to your agency’s Accessibility policy to identify when formal approval by an agency representative is required to claim any of the following exceptions.

Exceptions

E202.2 Legacy ICT Exception

Agencies may claim a ”Safe Harbor” for existing ICT that was accessible and compliant with the earlier standard on or before January 18, 2018 and has not been subsequently changed to affect interoperability, the user interface, or access to information or data. This safe harbor applies on a component basis (each component or portion of existing ICT must be assessed separately). For federal government ICT, this exception can only be claimed by federal agencies and components.

If all these conditions apply, legacy ICT components do not need to be remediated to conform to the Revised 508 Standards:

  • The legacy ICT was deployed, altered, or procured within the government on or before January 18, 2018;
  • The legacy ICT conformed to the Electronic and Information Technology Accessibility Standards as originally published on December 21, 2000, or qualified for an exception under these Standards before January 18, 2018;
  • No changes were made to the legacy ICT affecting interoperability, the user interface, or access to information or data after January 18, 2018.

Decision Questions

If the answer to all questions is ”yes”, this exception applies.

  1. Did your agency deploy, maintain, or use the ICT on or before January 18, 2018?
  2. Is the ICT known to have conformed to the Electronic and Information Technology Accessibility Standards as originally published, prior to January 18, 2018?
  3. Since January 18, 2018, has the ICT remained unchanged regarding interoperability, the user interface, or access to information and data?

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E202.3 National Security Systems Exception

This exception applies to ICT operated by agencies as part of a national security system, as defined by 40 U.S.C. 11103(a). For federal government ICT, this exception can only be claimed by federal agencies and components. This exception cannot be claimed by vendors and contractors.

Decision Questions

If any of the following apply, your ICT may qualify for this exception:

  1. Involves intelligence activities;
  2. Involves cryptologic activities related to national security;
  3. Involves command and control of military forces;
  4. Involves equipment that is an integral part of a weapon or weapons system; or
  5. Is critical to the direct fulfillment of military or intelligence missions (does not include routine administrative and business applications such as payroll, finance, logistics, and personnel management).

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E202.4 Federal Contracts Exception

This exception applies to ICT acquired by a contractor incidental to a contract. For federal government ICT, this exception can only be claimed by federal agencies and components.

This exception does not apply, IF:

  • The ICT will revert to government ownership;
  • The government directly procures the ICT; or
  • Members of the public or government employees use the ICT.

Decision Questions

If the answer to all questions is ”yes”, this exception applies.

  1. Is the vendor or contractor procuring the ICT?
  2. Will ONLY vendor or contractor personnel access or use the ICT?
  3. Will ownership of the ICT remain with the vendor or contractor upon completion of the contract?

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E202.5 ICT Functions Located in Maintenance or Monitoring Spaces Exception

This exception applies to status indicators and operable parts for ICT functions located in spaces that are frequented only by service personnel for maintenance, repair, or occasional equipment monitoring. (Similar to the ”Back Office Exception” allowed under the original 508 Standards, but scope is more limited.) For federal government ICT, this exception can only be claimed by federal agencies and components.

Decision Questions

If the answer to all questions is ”yes”, this exception applies.

  1. Does the ICT have status indicators or operable parts (i.e., physical controls)?
  2. Is the ICT located in spaces that are frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment (i.e., on a rack mounted in a wiring closet)?

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E202.6 Undue Burden or Fundamental Alteration Exception

Conformance to the Revised 508 Standards is required only when it does not impose an undue burden, or result in a fundamental alteration in the nature of the ICT. This exception is available only to federal agencies and components.

  • E202.6.1 Basis for a Determination of Undue Burden - Consider the extent to which conformance would impose significant difficulty or expense, including availability of resources.
  • E202.6.2 Required Documentation - Document in writing an explanation of why and to what extent it’s an undue burden on the agency, or would result in a fundamental alteration in the nature of the ICT.
  • E202.6.3 Alternative Means - Provide individuals with disabilities access to, and use of, information and data by an alternative means that meet identified needs.

Evaluating Undue Burden

Use this exception only in rare circumstances, where the cost to make ICT fully conform with the Standards would consume a significant amount of available program resources, or when conformance would present substantial difficulty.

When acquiring, developing or customizing ICT, evaluate for applicability of this exception:

  • Off-the-shelf (COTS/GOTS) ICT products, services or upgrades - After performing market research to understand the applicability of the Standards and alternatives available.
  • Custom designed ICT - After the business needs for the new functionality and features are defined.

The undue burden exception applies only to the specific features or functions of the ICT that cannot be made to conform to the Revised 508 Standards without imposing an undue burden on the agency or component.

  • To claim this exception for the entire ICT item, you must determine that ALL features and functions of the ICT product or service cannot conform to the Revised 508 Standards without imposing an undue burden (significant difficulty or expense).
  • If only SOME features and functions of the ICT product or service would impose an undue burden (significant difficulty or expense), you can only claim the exception for those features and functions. You must support compliance for the remaining items.

The federal agency or component that owns (or will own) the ICT product or service must:

  • Decide that conformance to the Standards would impose an undue burden;
  • Assess costs relative to resources if claiming the exception based on expense; and
  • Assess the difficulties in achieving conformance to claim the exception based on difficulty.

Contact the US Access Board for guidance on how to evaluate the applicability of an exception for undue burden. You may also want to consult with legal staff who are familiar with case law involving Undue Burden claims under Section 508 or related civil rights laws. For federal government ICT, this exception can only be claimed by federal agencies and components.

Decision Questions

If the answer to all questions is ”yes”, your ICT may warrant this exception.

  1. Have you determined that conformance for some or all features and functions of the ICT item would result in an undue burden on your agency or component?
  2. Have you quantified the resources available to the program or component for which the ICT is to be procured, developed, maintained, or used?
  3. Has the responsible agency official documented in writing how the difficulty or expense is significant, relative to the resources available? For example:
    1. What % of the expense equals total budget available?
    2. Explain exactly what is significantly difficult, and why.
  4. Does your documentation address whether the exception is being claimed for the entire ICT Item, or only specific features and functions?
  5. Will the agency provide an alternative means for users with disabilities for the features and functions for which you are claiming this exception?

Evaluating Fundamental Alteration

Use this exception only when conformance to the Revised 508 Standards would alter the inherent design of the ICT to the extent that it no longer adequately meets the agency’s business need.

When acquiring, developing or customizing ICT, evaluate for applicability of this exception:

  • Off-the-shelf (COTS/GOTS) ICT products, services or upgrades - After performing market research to understand the alternatives available.
  • Custom designed ICT - After outlining the intended purpose of the ICT and developing the preliminary design.

The exception for fundamental alteration applies only to the specific features or functions of the ICT that cannot conform to the Revised 508 Standards without fundamentally altering the nature of the ICT. For federal government ICT, this exception can only be claimed by federal agencies and components.

  • In order to claim the fundamental alteration exception for the entire ICT you must determine that ALL the features and functions of the ICT cannot conform to the Revised 508 Standards without fundamentally altering the nature of the ICT.
  • If only SOME features and functions cannot conform without fundamentally altering the nature of the ICT, you can only claim the exception for those features and functions that would be fundamentally altered. You must support compliance for the remaining items.

Decision Questions

If the answer to all questions is ”yes”, your ICT may warrant this exception.

  1. Have you determined that conformance to the Standards would fundamentally alter some or all of the features and functions, such that the ICT would not meet the agency’s business needs?
  2. Has the responsible agency official documented in writing the basis for determining that conformance would result in a fundamental alteration in the nature of the ICT?
  3. Does your documentation address whether the exception is being claimed for the entire ICT, or only specific features and functions of the ICT?
  4. Will the agency provide an alternative means for users with disabilities for the features and functions for which you are claiming this exception?

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E202.7 Best Meets Exception

When ICT that fully conforms to the Revised 508 Standards is not commercially available, procure ICT that conforms best with the Standards, consistent with meeting the agency’s business needs. For federal government ICT, this exception can only be claimed by federal agencies and components.

  • E202.7.1 Required Documentation - The responsible agency official must document in writing:
    • The non-availability of ICT that fully conforms to the Standards, including a description of market research performed and which provisions cannot be met; and
    • The basis for determining that the ICT to be procured best meets the Standards consistent with meeting agency business needs.
  • E202.7.2 Alternative Means - Provide individuals with disabilities access to and use of information and data by an alternative means that meets identified needs.

The best meets exception provides a mechanism to help agencies balance business needs and obligations to procure ICT Items that conform to the Revised 508 Standards when an alternative that fully conforms is not available. Similar to ”commercial non availability” in the original 508 Standards, but now formally addressed as an exception.

In determining best meets, consider the use of an equivalent design or technology to address the Standards when assessing overall conformance. Refer to E101.2 of the Revised Standards to learn how to assess the role of equivalent facilitation.

  • During a technical evaluation:
    • If one or more alternatives fully conform to the Revised 508 Standards, select one of these alternatives when making selection(s) for award.
    • If no alternative fully conforms, select the alternative that best meets the Standards when making an award; the best meets determination is based on the relative degree of conformance of the ICT item offered.
  • Where multiple ICT products, services, or components are bundled into a single ICT item, a best meets determination should compare one combined solution or item with another, unless the agency can select individual ICT products, services, or components from separate offers. Refer to "considerations for complex solicitations" in Step 1.
  • When selecting an alternative that only partially conforms, the responsible agency official must:
    • Document the basis for the determination, including market research conducted and why the selected ICT best meets the Revised 508 Standards. Provide information on:
      • What ICT alternatives were evaluated;
      • The lack of a fully conforming solution that meets the business needs;
      • The degree of 508 conformance of the ICT selected, as compared to the degree of conformance of the ICT that were not selected; and,
      • The steps taken to evaluate the degree of conformance (e.g., 508 expert VPAT™ review, vendor 508 test results, or vendor test results)
    • Provide an alternative means that meets the identified needs of people with disabilities not supported by the ICT Item(s).
  • For ”brand name or equivalent” COTS or GOTS solicitations, the supporting documentation used to justify the acquisition may be sufficient to fulfil the documentation requirements. If the ”brand name” ICT item does not fully support the Revised 508 Standards, the agency is still responsible for providing individuals with disabilities access to the non-conforming functions and features of the ICT Item through an alternative means that meets their identified needs.

Decision Questions

If the answer to all questions is ”yes”, your ICT item may warrant this exception.

  1. Have you completed market research addressing Section 508 compliance for the ICT Item?
  2. Did you evaluate Accessibility Conformance Reports or test results to validate 508 conformance claims?
  3. Did you document the market research performed to validate 508 conformance claims?
  4. Of the ICT items which met business needs, were there no options that fully conformed to the Revised 508 Standards?
  5. Are you purchasing the ICT Item that best meets the Revised 508 Standards?
  6. Will the agency provide an alternative means for users with disabilities for the features and functions that do not conform to the Revised 508 Standards?

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What’s Next?

See the other steps in this process:

Related Resources

  • Revised 508 Standards Applicability Checklist (MS-Word, April 2018) - Use this checklist to document your accessibility requirements for ICT items
  • Accessibility Requirements Tool - Automates the Revised 508 Standards Applicability Checklist; generates an accessibility reporting requirements template and customizable accessibility solicitation language.
  • Original Guidance Document - Developed by the U.S. Federal Government Revised 508 Standards Transition Workgroup; members include the U.S. Federal CIO Council Accessibility Community of Practice, the U.S. Access Board, and the General Services Administration.

Contact your agency’s Section 508 Coordinator or email us at section.508@gsa.gov with questions.

 

Updated/Reviewed: May 2018