[Federal Register: November 24, 2003 (Volume 68, Number 226)]
[Proposed Rules]
[Page 65850-65854]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24no03-9]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 65850]]
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 352
RIN 3064-AC58
Access of Persons With Disabilities to FDIC Programs, Activities,
Facilities, and Electronic and Information Technology
AGENCY: Federal Deposit Insurance Corporation.
ACTION: Notice of proposed rulemaking with request for comments.
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SUMMARY: The Federal Deposit Insurance Corporation (FDIC) proposes to
revise its regulations to implement section 508 of the Rehabilitation
Act of 1973, as amended. Section 508 requires each Federal agency or
department to ensure that the electronic and information technology
(EIT) they develop or procure allows individuals with disabilities
access to EIT comparable to the access of those who are not disabled,
unless the agency would incur an undue burden.
DATES: Written comments must be received on or before January 23, 2004.
ADDRESSES: You may submit comments, identified by RIN number 3064-AC58,
by any of the following methods:
[sbull] Agency Web site: http://www.fdic.gov/regulations/laws/federal/propose.html
.
[sbull] Mail: Robert E. Feldman, Executive Secretary, Attention:
Comments/Legal ESS, Federal Deposit Insurance Corporation, 550 17th
Street, NW., Washington, DC 20429.
[sbull] Hand Delivered/Courier: The guard station at the rear of
the 550 17th Street Building (located on F Street), on business days
between 7 a.m. and 5 p.m. [sbull] E-mail: comments@FDIC.gov. Include RIN number 3064-AC58 in
the subject line of the message.
[sbull] Comments may be inspected and photocopied in the FDIC
Public Information Center, Room 100, 801 17th Street, NW., Washington,
DC, between 9 a.m. and 4:30 p.m. on business days.
Instructions: Submissions received must include the agency name and
docket number or Regulatory Information Number (RIN) for this
rulemaking. Comments received will be posted without change to http://www.fdic.gov/regulations/laws/federal/propose.html
, including any
personal information provided. For detailed instructions on submitting
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT: Earl F. McJett, Information Management
Analyst, Office of Diversity and Economic Opportunity, (202) 416-4320,
or Joan S. Bunning, Counsel, Legal Division, (202) 898-8834, Federal
Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC
20429.
SUPPLEMENTARY INFORMATION:
I. Background
On March 20, 1986, the FDIC promulgated 12 CFR part 352 to
implement the spirit of section 504 of the Rehabilitation Act of 1973
(the Rehabilitation Act) (29 U.S.C. 794), as amended. Section 504
prohibits discrimination on the basis of disability as it applies to
programs and activities conducted by various agencies. Although the
FDIC did and still does not believe that Congress contemplated that
section 504 should cover non-appropriated, independent regulatory
agencies such as the FDIC, it voluntarily chose to promulgate this
regulation pursuant to section 504. See 51 FR 9638.
The Workforce Investment Act of 1998 (the WIA) (Pub. L. 105-220,
112 Stat. 936) amending section 508 of the Rehabilitation Act (29
U.S.C. 794d), was signed into law on August 7, 1998. As amended,
section 508 requires each Federal agency or department to ensure that
the EIT it develops or procures allows individuals with disabilities
access comparable to those who are not disabled, unless the agency
would incur an undue burden. In addition, the amended section 508
requires the Architectural and Transportation Barriers Compliance Board
(Access Board) to publish standards defining EIT and setting forth the
technical and functional performance criteria necessary to
accessibility for such technology. The WIA was effective as of August
7, 2000. The statute required the Access Board to publish its final
standards by February 7, 2000.
On July 13, 2000, the Military Construction Appropriations Act for
Fiscal Year 2001 (Pub. L. 106-246, 114 Stat. 511) was signed into law.
Section 2405 of that statute amended section 508 to delay the section's
effective date for enforcement to 6 months from the publication of the
Access Board's final standards. The Access Board's final standards were
published on December 21, 2000. See 65 FR 80500-80528. The effective
date for enforcement of section 508 became June 21, 2001. The FDIC
proposes to amend its regulations to reflect these legal requirements
and to update regulations to reflect current terminology, practice, and
procedures.\1\
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\1\ In addition to the proposed revisions to Part 352, the FDIC
issued a directive on September 28, 2001, number 2710.11, that sets
forth complaint procedures for individuals with disabilities, both
Federal employees and members of the public, who have been denied
access to EIT. FDIC issued a directive on July 18, 2003, number
2711.1, that contains the corporate policy on section 508 of the
Rehabilitation Act.
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II. Section-by-Section Analysis
Section 352.1 Purpose
This section would be amended to state that the purpose of the
regulation is to implement the requirements of section 508 of the
Rehabilitation Act of 1973, as amended by the WIA, in addition to
section 504 of the Rehabilitation Act.
Section 352.2 Application
This section would be amended to state that Part 352 applies to EIT
access in addition to the agency's programs and activities. It also
updates references to certain components of the FDIC such as the Office
of Legislative Affairs and lists the FDIC's Internet website as one of
the agency programs or activities to which Part 352 applies.
Section 352.3 Definitions
This section would be amended to include definitions specifically
pertaining to EIT, to update terminology by substituting the term
``individual with a disability'' for ``handicapped person,'' and to
define references in the regulation to section 508 and pertinent
statutes.
[[Page 65851]]
Section 352.4 Nondiscrimination in Any Program or Activity Conducted by
FDIC
This section is currently designated 352.5. Current section 352.4
would be deleted by the proposed rule. This section pertained to a
self-imposed requirement that the FDIC must evaluate its program to
implement section 504 of the Rehabilitation Act within one year of the
regulation's effective date. This self-evaluation has been conducted by
the FDIC. The current section 352.4 is therefore unnecessary.
The new section 352.4 would state that no qualified individual with
a disability shall be excluded from participation in, be denied the
benefits of, or otherwise be subject to discrimination on the basis of
that disability in FDIC programs or activities.
Section 352.5 Accessibility to Electronic and Information Technology
With respect to technology access, this new section states that the
FDIC will ensure that employees and the public with disabilities will
have access to EIT comparable to those without disabilities, unless an
undue burden would be imposed on the FDIC.
Section 352.6 Employment
This section would be amended to provide that no qualified
individual with a disability shall, on the basis of that disability, be
subjected to discrimination in employment in any program or activity
conducted by the FDIC. The section would further provide that the
definitions, requirements, and procedures of the Rehabilitation Act
that pertain to employment discrimination, as reflected in the
Rehabilitation Act's implementing regulations, will apply to FDIC
employment.
Section 352.7 Accessibility of Programs and Activities: Existing
Facilities
This section would be amended to make plain that the FDIC shall
operate its programs and activities to be readily accessible to and
usable by persons with disabilities.
Section 352.8 Program Accessibility: New Construction and Alterations
This section would be amended to provide that each building or part
of a building where FDIC programs or activities will occur which is
either new or substantially altered for the FDIC shall be fashioned for
ready access and use by individuals with disabilities.
Section 352.9 Communications
This section would be amended to provide that the FDIC shall take
appropriate steps to effectively communicate with participants in FDIC
programs and activities. The section would also be amended to refer to
individuals with disabilities rather than handicapped persons and to
the Office of Diversity and Economic Opportunity (ODEO) rather than the
superseded Office of Equal Employment. The section would also be
amended to provide the current address and telephone numbers of ODEO
for those who wish to contact that FDIC component. Finally, the section
would be amended to state that information as to where FDIC programs or
activities are conducted shall be provided at the primary entrance to
each FDIC facility.
Section 352.10 Compliance Procedures
This section would be amended to provide that the section applies
to claims of discrimination on the basis of disability in FDIC programs
and activities or the denial of access to EIT. The section would also
be amended to update and correct references to the Office of Diversity
and Economic Opportunity (ODEO), the procedures for filing and
processing complaints alleging disability discrimination in FDIC
programs or activities and denial of access to EIT. Moreover, the
section would be amended to shorten the time period during which the
FDIC must reach a finding with respect to a complaint alleging
discrimination on the basis of disability in FDIC programs and
activities and denial of access to EIT from 180 to 120 days.
Section 352.11 Notice
This section would be amended to include a reference to EIT and
section 508.
III. Request for Comments
The Board of Directors of the FDIC (the Board) is seeking comment
on whether the measures outlined in this notice of proposed rulemaking
will fulfill the objectives set for the agency by section 508 of the
Rehabilitation Act. The Board welcomes any suggestions that commenters
might have for ways to improve upon the suggested measures or
additional steps that the FDIC might take to promote access by
individuals with disabilities to EIT and to prevent discrimination on
the basis of disability.
IV. Paperwork Reduction Act
The proposed rule would not involve any collections of information
under the Paperwork Reduction Act (44 U.S.C. 3501, et seq.).
Consequently, no information has been submitted to the Office of
Management and Budget for review.
V. Regulatory Flexibility Act
Pursuant to 5 U.S.C. 605(b) the FDIC certifies that the proposed
rule would not have a significant economic impact on a substantial
number of small businesses within the meaning of the Regulatory
Flexibility Act (5 U.S.C. 601, et seq.). The proposed rule describes
how the FDIC will implement section 508 of the Rehabilitation Act to
ensure that the EIT the agency develops and procures will allow
individuals with disabilities access to EIT comparable to the access of
those who are not disabled, unless the agency would incur an undue
burden. It requires no specific or general action from any state
nonmember bank nor does it impose any new reporting, recordkeeping or
other compliance requirements. Accordingly, the requirements relating
to an initial and final regulatory flexibility analysis are not
applicable.
VI. Impact on Families
The proposed rule will not affect family well-being within the
meaning of section 654 of the Treasury and General Government
Appropriations Act, enacted as part of the Omnibus Consolidated and
Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112
Stat. 2681).
List of Subjects in 12 CFR Part 352
Access, Civil rights, Electronic and information technology, Equal
employment opportunity, Federal building and facilities, Individuals
with disabilities.
For the reasons set forth in the preamble, the Board of Directors
of the Federal Deposit Insurance Corporation hereby proposes to revise
Part 352 of Title 12 of the Code of Federal Regulations to read as
follows:
PART 352--NONDISCRIMINATION ON THE BASIS OF DISABILITY
Sec.
352.1 Purpose.
352.2 Application.
352.3 Definitions.
352.4 Nondiscrimination in any program or activity conducted by the
FDIC.
352.5 Accessibility to electronic and information technology.
352.6 Employment.
352.7 Accessibility of programs and activities: Existing facilities.
352.8 Program accessibility: New construction and alterations.
352.9 Communications.
352.10 Compliance procedures.
352.11 Notice.
[[Page 65852]]
Authority: 12 U.S.C. 1819(a); 29 U.S.C. 794d.
Sec. 352.1 Purpose.
(a) One purpose of this part is to implement the spirit of section
504 of the Rehabilitation Act of 1973 (the Rehabilitation Act) as
amended by section 119 of the Rehabilitation, Comprehensive Services,
and Developmental Disabilities Amendments of 1978 and the Workforce
Investment Act of 1998. Section 504 prohibits discrimination on the
basis of disability in programs and activities conducted by a federal
executive agency. Although the FDIC does not believe that Congress
contemplated coverage of non-appropriated, independent regulatory
agencies such as the FDIC, the FDIC has chosen to promulgate this part
to ensure that, to the extent practicable, persons with disabilities
are provided with equal access to FDIC programs and activities.
(b) This part is also intended to implement section 508 of the
Rehabilitation Act as amended. Section 508 requires each federal agency
or department to ensure that the electronic and information technology
they procure allows individuals with disabilities access to that
technology comparable to the access of those who are not disabled,
unless the agency would incur an undue burden.
Sec. 352.2 Application.
(a) This part applies to all programs, activities, and electronic
and information technology developed, procured, maintained, used or
conducted by the FDIC. The following programs and activities involve
the direct provision of benefits and services to, or participation by,
members of the public:
(1) Attending Board of Directors meetings open to the public and
all other public meetings;
(2) Making inquiries or filing complaints at the FDIC Office of
Legislative Affairs and Office of Public Affairs;
(3) Using the FDIC library in Washington, DC;
(4) Using the FDIC Web site on the Internet;
(5) Visiting an insured bank at which they conducted business (or
an alternative liquidation site selected by the FDIC) and which has
become insolvent, or been purchased by another bank under FDIC
supervision, for the purpose of:
(i) Collecting FDIC checks for the insured amount of their deposits
previously held in such bank; and/or
(ii) Discussing with FDIC representatives matters related to the
repayment of debts which they previously owed to such bank, prior to
its failure or purchase by another bank under FDIC supervision;
(6) Seeking employment with the FDIC;
(b) This part governs the conduct of FDIC personnel in their
interaction with employees of insured banks and employees of other
state or federal agencies while discharging the FDIC's statutory
obligations as insurer and/or receiver of financial institutions. It
does not apply to financial institutions insured by the FDIC.
(c) Although application for employment and employment with the
FDIC are programs and activities of the FDIC for purposes of this part,
they shall be governed only by the standards set forth in Sec. 352.6
of this part.
Sec. 352.3 Definitions.
For purposes of this part, the term--
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, the FDIC
programs or activities, and Electronic and Information Technology set
forth in Sec. 352.2.
Electronic and Information Technology (EIT) has the same meaning as
``information technology'' except EIT also includes any equipment or
interconnected system or subsystem of equipment that is used in the
creation, conversion, or duplication of data or information. The term
EIT includes, but is not limited to, telecommunication products (such
as telephones), information kiosks and transaction machines, worldwide
web sites, multimedia, and office equipment (such as copiers and fax
machines).
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots and other real or personal
property. As used in this definition, ``personal property'' means only
furniture, carpeting and similar features not considered to be real
property.
Individual with a disability means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as
having such an impairment.
Qualified individual with a disability means--
(1) With respect to any FDIC program or activity in which a person
is required to perform services or to achieve a level of
accomplishment, an individual with a disability who meets the essential
eligibility requirements and can achieve the purpose of the program or
activity without modifications in the program or activity that the FDIC
can determine on the basis of a written record would result in a
fundamental alteration in its nature;
(2) With respect to any other program or activity, an individual
with a disability who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or
activity;
(3) With respect to employment, an individual with a disability as
defined in 29 CFR 1630.2(g), which is made applicable to this part by
Sec. 352.6.
Sections 504 and 508 mean sections 504 and 508 of the
Rehabilitation Act of 1973 (Public Law 93-112, 87 Stat. 394 (29 U.S.C.
794 and 794d)), as amended by the Rehabilitation Act Amendments of 1974
(Public Law No. 93-516, 88 Stat. 1617), the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978 (Public Law 95-602, 92 Stat. 2955), and the Workforce Investment
Act of 1998 (Public Law 105-220, 112 Stat. 936). As used in this part,
sections 504 and 508 shall be applied only to the programs, activities,
and EIT conducted by the FDIC as set forth in Sec. Sec. 352.2 and
352.3(b) of this part.
Sec. 352.4 Nondiscrimination in any program or activity conducted by
the FDIC.
In accordance with section 504 of the Rehabilitation Act, no
qualified individual with a disability shall, solely by reason of his
or her disability, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination in any program or
activity conducted by the FDIC.
Sec. 352.5 Accessibility to electronic and information technology.
(a) In accordance with section 508 of the Rehabilitation Act, the
FDIC shall ensure, absent an undue burden, that the electronic and
information technology the agency develops, procures, maintains or
allows:
(1) Individuals with disabilities who are FDIC employees or
applicants to have access to and use of information and data that is
comparable to the access to and use of information and data by FDIC
employees or applicants who are not individuals with disabilities; and
(2) Individuals with disabilities who are members of the public
seeking information or services from the FDIC to 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.
[[Page 65853]]
(b) When development or procurement of electronic and information
technology that meets the standards published by the Architectural and
Transportation Barriers Compliance Board, 36 CFR part 1194, would pose
an undue burden, the FDIC shall provide individuals with disabilities
covered by paragraph (a) of this section with the information and data
by an alternative means of access that allows the individuals to use
the information and data.
Sec. 352.6 Employment.
No qualified individual with a disability shall, on the basis of
that disability, be subjected to discrimination in employment in any
program or activity conducted by the FDIC. The definitions,
requirements, and procedures (including those pertaining to employment
discrimination complaints) of sections 501 of the Rehabilitation Act of
1973, as established in 29 CFR parts 1614 and 1630, shall apply to
employment in the FDIC.
Sec. 352.7 Accessibility of programs and activities: Existing
facilities.
The FDIC shall operate each of the programs or activities set forth
in Sec. 352.2 of this part so that when viewed in its entirety, the
program or activity is readily accessible to and usable by individuals
with disabilities.
Sec. 352.8 Program accessibility: New construction and alterations.
Each building or part of a building, whether newly constructed, or
substantially altered, in which FDIC programs or activities will be
conducted, shall be designed, constructed or altered so as to be
readily accessible to, and usable by, individuals with disabilities.
Sec. 352.9 Communications.
(a) The FDIC shall take appropriate steps to ensure effective
communication with participants in FDIC programs, activities and EIT.
(1) The FDIC shall furnish appropriate auxiliary aids where
necessary to afford an individual with a disability an equal
opportunity to participate in, and enjoy the benefits of, the FDIC
programs or activities.
(i) In determining what type of auxiliary aid is necessary, the
FDIC shall give primary consideration to any reasonable requests of the
individual with a disability.
(ii) The FDIC need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the FDIC communicates by telephone, it shall use
telecommunications devices for deaf persons (TDD's) or equally
effective telecommunication systems with hearing impaired participants
and beneficiaries.
(b) The FDIC shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities,
facilities and EIT. Interested persons may obtain such information by
calling, writing or visiting the FDIC Office of Diversity and Economic
Opportunity (ODEO), located at 801 17th Street, NW., Washington, DC
20434. The ODEO telephone number is (202) 416-4000 and (202) 416-2487
(TDD).
(c) The FDIC shall provide information at a primary entrance to
each of its facilities where programs or activities are conducted,
directing users to a location at which they can obtain information
about accessible facilities. The international symbol for accessibility
shall be used at each primary entrance of an accessible facility.
Sec. 352.10 Compliance procedures.
(a) Applicability. Paragraph (b) of this section applies to
employment complaints. The remaining paragraphs in this section concern
complaints alleging disability discrimination in FDIC programs or
activities and denial of technology access.
(b) Employment complaints. The FDIC shall process complaints
alleging employment discrimination on the basis of disability according
to the procedures established by the Equal Employment Opportunity
Commission in 29 CFR parts 1614 and 1630 pursuant to section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) Informal process. A complainant shall first exhaust informal
administrative procedures before filing a formal complaint alleging
disability discrimination in FDIC programs or activities, or a denial
of technology access. The FDIC's Office of Diversity and Economic
Opportunity shall be responsible for coordinating implementation of
this section. An aggrieved individual initiates the process by filing
an informal complaint with ODEO within 180 calendar days from the date
of the alleged disability discrimination or denial of access to
electronic information technology. An informal complaint with respect
to any FDIC program or activity must include a written statement
containing the individual's name and address which describes the FDIC's
action in sufficient detail to inform the FDIC of the nature and date
of the alleged violation of these regulations. An informal complaint
for denial of technology access must clearly identify the individual
and the manner in which the EIT was inaccessible. All informal
complaints shall be signed by the complainant or one authorized to do
so on his or her behalf. Informal complaints filed on behalf of third
parties shall describe or identify (by name if possible) the alleged
victim of discrimination or denial of technology access. During the
informal resolution process, ODEO has 30 days to attempt a resolution
of the matter. If the aggrieved individual elects to participate in
mediation, the period for attempting informal resolution will be
extended for an additional 60 calendar days. If the matter is not
resolved informally, the individual will be provided written notice of
the right to file a formal complaint. All complaints should be sent to
the FDIC's Office of Diversity and Economic Opportunity, 801 17th
Street, NW., Washington, DC 20434.
(d) If the FDIC receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complainant to the appropriate
government entity.
(e) Formal complaints. The individual must file a written formal
complaint within 15 calendar days after receiving the notice of a right
to file a formal complaint. Formal complaints must be filed with the
FDIC Chairman or the ODEO Director. Within 120 days of the receipt of
such a complaint for which it has jurisdiction, the FDIC shall notify
the complainant of the results of the investigation in a letter
containing--
(1) A finding regarding the alleged violations;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(f) Appeals of the findings or remedies must be filed by the
complainant within 30 days of receipt from the FDIC of the letter
required by Sec. 352.10(e). The FDIC may extend this time for good
cause.
(g) Timely appeals shall be accepted and processed by the FDIC
Chairman or ODEO Director.
(h) The FDIC Chairman or ODEO Director shall notify the complainant
of the results of the appeal within 60 days of the receipt of the
request. If the FDIC Chairman or ODEO Director determines that
additional information is needed from the complainant, he or she shall
have 60 days from the date of receipt of the additional information to
make a determination on the appeal.
[[Page 65854]]
(i) The time limits set forth in paragraphs (e) and (h) of this
section may be extended for an individual case when the FDIC Chairman
or ODEO Director determines that there is good cause, based on the
particular circumstances of that case.
(j) The FDIC may delegate its authority for conducting complaint
investigations to other federal agencies or independent contractors,
except that the authority for making the final determination may not be
delegated.
Sec. 352.11 Notice.
The FDIC shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the FDIC, and make such
information available to them in such manner as the Chairman or
designee finds necessary to apprise such persons of the protections
against discrimination under section 504 or technology access provided
under section 508 and this part.
Dated: November 4, 2003.
By order of the Board of Directors of the Federal Deposit
Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 03-29090 Filed 11-21-03; 8:45 am]
BILLING CODE 6714-01-P