[Federal Register: July 28, 2004 (Volume 69, Number 144)]
[Rules and Regulations]
[Page 44962-44965]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jy04-12]
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POSTAL SERVICE
39 CFR Part 255
Access of Persons With Disabilities to Postal Service Programs,
Activities, Facilities, and Electronic and Information Technology
AGENCY: Postal Service.
ACTION: Final rule.
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SUMMARY: The Postal ServiceTM is amending its regulations in
order to add a complaint process for employees and applicants under
section 508 of the Rehabilitation Act of 1973, as amended.
DATES: The rule is effective August 27, 2004.
FOR FURTHER INFORMATION CONTACT: Joan C. Goodrich, Esq., (202) 268-
3047.
SUPPLEMENTARY INFORMATION: Section 508 requires Federal agencies to
ensure that the electronic and information technology (EIT) they
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 hardship. The statute was amended by the Workforce
Investment Act of 1998, Public Law 105-220, 112 Stat. 536 (1998), to
add enforcement provisions and to require agencies to add a complaint
process for section 508. A complaint process under section 508 for
members of the public who are disabled was added to part 255 through a
Federal Register publication of a proposed rule on February 25, 2002
(67 FR 8489-8493). A final rule for the section 508 complaint process
for members of the public was published in the Federal Register on
December 10, 2002. This final rule was effective January 9, 2003.
A section 508 complaint process for employees and applicants who
are disabled is now being added to part 255.
Section-by-Section Analysis
Section 255.2 Definitions
A new subparagraph (3) has been added to (h) Qualified individual
with a disability in order to give applicants and employees the
definition of a ``qualified individual with a disability'' under
section 501 of the Rehabilitation Act.
Section 255.6 Processing of Complaints
The title of this section has been changed to reflect that it
explains how various types of complaints will be processed and to
distinguish it from the complaint procedures in paragraph (d) of this
section.
(a) Section 504 complaints, employment.
Paragraph (a) has been renamed and now provides that section 504
complaints alleging employment discrimination and brought by employees
or applicants are to be processed under the procedures established for
section 501 complaints.
(b) Section 504 complaints, members of the public.
Paragraph (b) has been renamed and now provides that section 504
complaints alleging disability discrimination in any program or
activity of the Postal Service and brought by members of the public are
to be processed under the procedures of this part.
(c) Section 508 complaints, members of the public, employees and
applicants.
Paragraph (c) has been renamed and now provides that the procedures
of this part shall apply to section 508 complaints alleging failure to
provide access to electronic and information technology and brought by
members of the public, employees, or applicants.
(d) Complaint Procedures.
Paragraph (d) has been renamed and renumbered. It was previously
paragraph (c). It explains the complaint procedures for section 504
complaints brought by members of the public and section 508 complaints
brought by members of the public, employees, or applicants. The actual
complaint procedures are unchanged.
(e) No retaliation.
This paragraph was renumbered. It was previously paragraph (d). It
has not been changed.
List of Subjects in 39 CFR Part 255
Civil rights, Federal buildings and facilities, Individuals with
disabilities.
0
Accordingly, the Postal Service revises 39 CFR part 255 to read as
follows:
PART 255--ACCESS OF PERSONS WITH DISABILITIES TO POSTAL SERVICE
PROGRAMS, ACTIVITIES, FACILITIES, AND ELECTRONIC AND INFORMATION
TECHNOLOGY
Sec.
255.1 Purpose.
255.2 Definitions.
255.3 Nondiscrimination under any program or activity conducted by
the Postal Service.
255.4 Accessibility to electronic and information technology.
255.5 Employment.
255.6 Processing of complaints.
255.7 Special arrangements for postal services.
255.8 Access to postal facilities.
255.9 Other postal regulations; authority of postal managers and
employees.
Authority: 39 U.S.C. 101, 401, 403, 1001, 1003, 3403, 3404; 29
U.S.C. 791, 794, 794d.
Sec. 255.1 Purpose.
(a) This part implements section 504 of the Rehabilitation Act of
1973, as amended. Section 504 prohibits discrimination on the basis of
disability in programs or activities conducted by executive agencies or
by the Postal Service. This part also implements section 508 of the
Rehabilitation Act of 1973, as amended. Section 508 requires that
executive agencies and the Postal Service ensure, absent an undue
burden, that individuals with disabilities have access to electronic
and information technology that is comparable to the access of
individuals who are not disabled.
(b) The standards relating to electronic and information technology
expressed in this part are intended to be consistent with the standards
announced by the Architectural and Transportation Barriers Compliance
Board on December 21, 2000. Those standards are codified at 36 CFR part
1194.
Sec. 255.2 Definitions.
(a) Agency as used in this part means the Postal Service.
(b) Area/functional vice president also includes his or her
designee.
(c) Electronic and information technology (EIT) includes
``information technology'' and any equipment or interconnected system
or subsystem of equipment that is used in the creation, conversion, or
duplication of data or information. The term does 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.
(d) Formal complaint means a written statement that contains the
complainant's name, address, and telephone number, sets forth the
nature of the complainant's disability, and describes the agency's
alleged discriminatory action in sufficient detail to inform the agency
of the nature of the alleged violation of section 504 or of section
508. It shall be signed by the complainant or by someone authorized to
do so on the complainant's behalf.
(e) Individual with a disability. For purposes of this part,
``individual with a disability'' means any person who--
(1) Has a physical or mental impairment that substantially limits
one or more of such person's major life activities;
(2) Has a record of such an impairment; or
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(3) Is regarded as having such an impairment.
(f) Information technology means 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.
(g) Postal manager. As used in this part, ``postal manager'' means
the manager or official responsible for a service, facility, program,
or activity.
(h) Qualified individual with a disability. For purposes of this
part, ``qualified individual with a disability'' means--
(1) With respect to any Postal Service program or activity, except
for employment, under 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 who can achieve
the purpose of the program or activity without modifications in the
program or activity that the agency can demonstrate would result in a
fundamental alteration in its nature; or
(2) With respect to any other program or activity, except for
employment, an individual with a disability who meets the essential
eligibility requirements for participation in, or receipt of benefits
from, that program or activity; or
(3) With respect to employment, an individual with a disability who
can perform the essential functions of the job in question with or
without reasonable accommodation.
(i) Section 501 means section 501 of the Rehabilitation Act of
1973, as amended. Section 501 is codified at 29 U.S.C. 791.
(j) Section 504 means section 504 of the Rehabilitation Act of
1973, as amended. Section 504 is codified at 29 U.S.C. 794.
(k) Section 508 means section 508 of the Rehabilitation Act of
1973, as amended. Section 508 is codified at 29 U.S.C. 794d.
(l) Undue burden means significant difficulty or expense.
(m) Vice President and Consumer Advocate also includes his or her
designee.
Sec. 255.3 Nondiscrimination under any program or activity conducted
by the Postal Service.
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 under, any program or
activity conducted by the Postal Service.
Sec. 255.4 Accessibility to electronic and information technology.
(a) In accordance with section 508 of the Rehabilitation Act, the
Postal Service shall ensure, absent an undue burden, that the
electronic and information technology the agency procures allows--
(1) Individuals with disabilities who are Postal Service 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 Postal
Service 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 Postal Service 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.
(b) When procurement of electronic and information technology that
meets the standards published by the Architectural and Transportation
Barriers Compliance Board would pose an undue burden, the Postal
Service 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. 255.5 Employment.
No qualified individual with a disability shall, on the basis of
disability, be subjected to discrimination in employment with the
Postal Service. The definitions, requirements, and procedures of
section 501 of the Rehabilitation Act of 1973, as established by the
Equal Employment Opportunity Commission in 29 CFR part 1614 shall apply
to employment within the Postal Service.
Sec. 255.6 Processing of complaints.
(a) Section 504 complaints, employment. The Postal Service shall
process complaints of employees and applicants alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1614 pursuant to section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. 791. In accordance with 29 CFR part 1614, the Postal
Service has established procedures for processing complaints of alleged
employment discrimination, based upon disability, in the agency's
handbook, Equal Employment Opportunity Complaint Processing.
(b) Section 504 complaints, members of the public. The procedures
of this part shall apply to section 504 complaints alleging disability
discrimination in any program or activity of the Postal Service and
brought by members of the public.
(c) Section 508 complaints, members of the public, employees, and
applicants. The procedures of this part shall apply to section 508
complaints alleging failure to provide access to electronic and
information technology and brought by members of the public or by
employees or applicants. Section 508 complaints shall be processed to
provide the remedies required by section 508 of the Rehabilitation Act.
(d) Complaint Procedures. Any individual with a disability who
believes that he or she has been subjected to discrimination prohibited
by this part or by the alleged failure of the agency to provide access
to electronic and information technology may file a complaint by
following the procedures described herein. A complainant shall first
exhaust informal administrative procedures before filing a formal
complaint.
(1) Informal complaints relating to Postal Service programs or
activities and to EIT. (i) A complainant initiates the informal process
by informing the responsible postal manager orally or in writing of the
alleged discrimination or inaccessibility of Postal Service programs,
activities, or EIT. Postal managers or employees who receive informal
complaints that they lack the authority to resolve must promptly refer
any such informal complaint to the appropriate postal manager, and at
the same time must notify the complainant of the name, address, and
telephone number of the person handling the complaint.
(ii) Resolution of the informal complaint and time limits. Within
15 days of receipt of the informal complaint, the responsible postal
manager must send the complainant a written acknowledgement of the
informal complaint. The written acknowledgment will include the date
the complaint was filed and a description of the issue(s). If the
matter cannot be resolved within 30 days of its receipt, the
complainant must be sent a written interim report which explains the
status of the informal complaint and the proposed resolution of the
matter. On or before the 60th day from the agency's receipt of the
informal complaint, the appropriate area/functional vice president
within the
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Postal Service shall send a written decision to the complainant
detailing the final disposition of the informal complaint and the
reasons for that disposition. The decision shall contain the notice
that the complainant may challenge an informal decision which denies
relief either by proceeding in any other appropriate forum or by filing
a formal complaint with the Vice President and Consumer Advocate. The
notice will give the address of the Vice President and Consumer
Advocate. The notice shall also state that if the complainant chooses
to file a formal complaint, the complainant shall exhaust the formal
complaint procedures before filing suit in any other forum.
(iii) Automatic review. The responsible postal manager's proposed
disposition of the informal complaint shall be submitted to the
appropriate district/program manager for review. The district/program
manager shall forward the proposed disposition to the area/functional
vice president for review and issuance of the written decision. This
automatic review process shall be completed such that the written
decision of the area/functional vice president shall be sent to the
complainant no later than the 60th day from the agency's receipt of the
informal complaint.
(2) Formal complaints. If an informal complaint filed under
paragraph (d)(1) of this section denies relief, the complainant may
seek relief in any other appropriate forum, including the right to file
a formal complaint with the Vice President and Consumer Advocate in
accordance with the following procedures. If the complainant files a
formal complaint with the Vice President and Consumer Advocate, the
complainant shall exhaust the formal complaint procedures before filing
suit in any other forum.
(i) Where to file. Formal complaints relating to programs or
activities conducted by the Postal Service or to access of Postal
Service EIT may be filed with the Vice President and Consumer Advocate,
United States Postal Service, 475 L'Enfant Plaza, SW., Washington, DC
20260.
(ii) When to file. A formal complaint shall be filed within 30 days
of the date the complainant receives the decision of the area/
functional vice president to deny relief. For purposes of determining
when a formal complaint is timely filed under paragraph (d)(2)(ii) of
this section, a formal complaint mailed to the agency shall be deemed
filed on the date it is postmarked. Any other formal complaint shall be
deemed filed on the date it is received by the Vice President and
Consumer Advocate.
(iii) Acceptance of the formal complaint. The Vice President and
Consumer Advocate shall accept a timely filed formal complaint that
meets the requirements of Sec. 255.2(d), that is filed after
fulfilling the informal exhaustion procedures of Sec. 255.6(d)(1), and
over which the agency has jurisdiction. The Vice President and Consumer
Advocate shall notify the complainant of receipt and acceptance of the
formal complaint within 15 days of the date the Vice President and
Consumer Advocate received the formal complaint.
(iv) Resolution of the formal complaint. Within 180 days of receipt
and acceptance of a formal complaint over which the agency has
jurisdiction, the Vice President and Consumer Advocate shall notify the
complainant of the results of the investigation of the formal
complaint. The notice shall be a written decision stating whether or
not relief is being granted and the reasons for granting or denying
relief. The notice shall state that it is the final decision of the
Postal Service on the formal complaint.
(e) No retaliation. No person shall be subject to retaliation for
opposing any practice made unlawful by the Rehabilitation Act of 1973,
as amended, 29 U.S.C. 791, or for participating in any stage of
administrative or judicial proceedings under the statute.
Sec. 255.7 Special arrangements for postal services.
Members of the public who are unable to use or who have difficulty
using certain postal services may be eligible under postal regulations
for special arrangements. Some of the special arrangements that the
Postal Service has authorized are listed below. No one is required to
use any special arrangement offered by the Postal Service, but an
individual's refusal to make use of a particular special arrangement
does not require the Postal Service to offer other special arrangements
to that individual.
(a) The Postal Operations Manual offers information on special
arrangements for the following postal services:
(1) Carrier delivery services and programs.
(2) Postal retail services and programs.
(i) Stamps by mail or phone.
(ii) Retail service from rural carriers.
(iii) Self-service postal centers. Self-service postal centers
contain vending equipment for the sale of stamps and stamp items, and
deposit boxes for parcels and letter mail. Many centers are accessible
to individuals in wheelchairs. Information regarding the location of
the nearest center may be obtained from a local post office.
(b) The Domestic Mail Manual, the Administrative Support Manual,
and the International Mail Manual contain information regarding
postage-free mailing for mailings that qualify.
(c) Inquiries and requests. Members of the public wishing further
information about special arrangements for particular postal services
may contact their local postal manager.
(d) Response to a request or complaint regarding a special
arrangement for postal services. A local postal manager receiving a
request or complaint about a special arrangement for postal services
must provide any arrangement as required by postal regulations. If no
special arrangements are required by postal regulations, the local
postal manager, in consultation with the district manager or area
manager, as needed, may provide a special arrangement or take any
action that will accommodate an individual with a disability as
required by section 504 or by this part.
Sec. 255.8 Access to postal facilities.
(a) Legal requirements and policy--(1) ABA Standards. Where the
design standards of the Architectural Barriers Act (ABA) of 1968, 42
U.S.C. 4151 et seq., do not apply, the Postal Service may perform a
discretionary retrofit to a facility in accordance with this part to
accommodate individuals with disabilities.
(2) Discretionary modifications. The Postal Service may modify
facilities not legally required to conform to ABA standards when it
determines that doing so would be consistent with efficient postal
operations. In determining whether modifications not legally required
should be made, due regard is to be given to:
(i) The cost of the discretionary modification;
(ii) The number of individuals to be benefited by the modification;
(iii) The inconvenience, if any, to the general public;
(iv) The anticipated useful life of the modification to the Postal
Service;
(v) Any requirement to restore a leased premises to its original
condition at the expiration of the lease, and the cost of such
restoration;
(vi) The historic or architectural significance of the property in
accordance with the National Historic Preservation Act of 1966, 16
U.S.C. 470 et seq.;
(vii) The availability of other options to foster service
accessibility; and
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(viii) Any other factor that is relevant and appropriate to the
decision.
(b) Inquiries and requests. (1) Inquiries concerning access to
postal facilities, and requests for discretionary alterations of postal
facilities not covered by the design standards of the ABA, may be made
to the local postal manager of the facility involved.
(2) The local postal manager's response to a request or complaint
regarding an alteration to a facility will be made after consultation
with the district manager or the area manager. If the determination is
made that modification to meet ABA design standards is not required, a
discretionary alteration may be made on a case-by-case basis in
accordance with the criteria listed in paragraph (a)(2) of this
section. If a discretionary alteration is not made, the local postal
manager should determine if a special arrangement for postal services
under Sec. 255.7 can be provided.
Sec. 255.9 Other postal regulations; authority of postal managers and
employees.
This part supplements all other postal regulations. Nothing in this
part is intended either to repeal, modify, or amend any other postal
regulation, to authorize any postal manager or employee to violate or
exceed any regulatory limit, or to confer any budgetary authority on
any postal official or employee outside normal budgetary procedures.
Neva Watson,
Attorney, Legislative.
[FR Doc. 04-17126 Filed 7-27-04; 8:45 am]
BILLING CODE 7710-12-P