02-4212. Access of Persons with Disabilities to Postal Service Programs, Activities, Facilities, and Electronic and Information Technology

AGENCY:

Postal Service.

ACTION:

Proposed rule with request for comments.

SUMMARY:

The Postal Service is proposing to amend its regulations in order to implement section 508 of the Rehabilitation Act of 1973, as amended. 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 to add enforcement provisions and to require agencies to add a complaint process for section 508. The complaint process for members of the public who are disabled is outlined here in part 255. The complaint process for employees and applicants who are disabled is set forth in the Postal Service's Handbook EL-603, Equal Employment Opportunity Complaint Processing.

DATES:

Written comments must be received on or before March 27, 2002.

ADDRESSES:

Written comments should be mailed to Office of the Consumer Advocate, United States Postal Service, 475 L'Enfant Plaza, SW., Room 5801, Washington, DC 20260-2200. Copies of all written comments will be available for inspection and photocopying between 9 a.m. and 4 p.m., Monday through Friday, at the Corporate Library, United States Postal Service, 475 L'Enfant Plaza, SW., Room 11800, Washington, DC 20260, [phone].

FOR FURTHER INFORMATION CONTACT:

Joan C. Goodrich, [phone] or Christine M. Taylor, [phone].

SUPPLEMENTARY INFORMATION:

The Workforce Investment Act of 1998, Pub. L. 105-220, 112 Stat. 936 (1998), amending section 508 of the Rehabilitation Act of 1973, 29 U.S.C. 794d, was signed into law on August 7, 1998. In addition to the provisions outlined above, the act required 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 act, which was effective August 7, 2000, also 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, which contained an amendment to section 508, was signed into law. Public Law No. 106-246 delayed the effective date for enforcement of section 508 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, in 65 FR 80500-80528. The effective date for enforcement of section 508 became June 21, 2001. In accordance with the statutory requirements outlined above, the Postal Service is initiating this notice of proposed rulemaking adding a complaint process for section 508 to its regulations.

Section-by-Section Analysis

Section 255.1 Purpose

This new section is added to describe the purposes of part 255. These purposes are to implement sections 504 and 508 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 794, 794d. Another purpose is to state that the EIT standards set forth in part 255 are intended to be consistent with the standards of the Access Board announced in the Federal Register on December 21, 2000.

Former Section 255.1 Discrimination against handicapped persons has been renamed and renumbered as Section 255.3 Nondiscrimination under any program or activity conducted by the Postal Service.

Section 255.2 Definitions

This new section has been added to provide definitions of the terms used in part 255. A number of definitions have been added to clarify words and concepts already in part 255. New definitions were added for the new terms associated with section 508. There is a change in terms from “handicapped person” to “individual with a disability,” but the definition of who is “disabled” remains the same. This change was made to reflect the change in terminology in the Rehabilitation Act. Prior Section 255.2 Special Arrangements for postal services is now Section 255.7 Special arrangements for postal services.

Section 255.3 Nondiscrimination Under any Program or Activity Conducted by the Postal Service

This section states the prohibition against discrimination based upon disability in federally conducted programs or activities that is contained in section 504 of the Rehabilitation Act. It originally appeared in former section 255.1(a). The words “handicapped” and “handicap” have been removed and replaced with “disability.”

Section 255.4 Accessibility to Electronic and Information Technology

This section is new. It states the standards set forth in section 508 of the Rehabilitation Act which apply to making EIT accessible to individuals with disabilities. It also specifics the obligations of the Postal Service where providing access to EIT would pose an undue burden.

Section 255.5 Employment

This section states the prohibition against discrimination in employment based upon disability that is contained in section 501 of the Rehabilitation Act, as amended, 29 U.S.C. § 791. It was previously found at section 255.1(d). The word “handicapped” has been removed and replaced with “disability.”

Section 255.6 Complaint Procedures

This section adds section 508 to the existing complaint process for section 504. It revises and clarifies the complaint process.

(a) Applicability

This paragraph explains that the procedures of part 255 apply to alleged violations of section 504 and section 508 brought by members of the public.

(b) Employment Complaints

Subparagraph (1) explains that complaints brought by applicants and employees alleging violations of section 504 with respect to employment will be processed by the Postal Service in accordance with the procedures established by the Equal Employment Opportunity Commission (EEOC) in 29 CFR part 1614 under the authority of section 501 of the Rehabilitation Act. The Postal Service's own procedures following part 1614 are found in Handbook EL-603, Equal Employment Opportunity Complaint Processing.

Previously, the section on employment complaints was found at section 255.1(d). The reference to the Employee and Labor Relations Manual was deleted and replaced with the reference to Handbook EL-603 because the complaint processing procedures were removed from the manual and placed into the handbook. The reference to part 1614 was added to clarify where the EEOC regulations are found. The term “handicapped” was removed and replaced with “disability.”

Subparagraph (2) is new and explains that complaints brought by applicants and employees alleging violations of section 508 and involving employment will be processed in accordance with the new section 508 procedures added to Handbook EL-603.

(c) Complaints by Members of the Public

Section 508 has been added to the former complaint process for section 504. The former process, previously found at section 255.1(c), has been modified to include an informal stage and a formal stage. A requirement that a complainant shall first exhaust informal administrative procedures before filing a formal complaint has been added.

Subparagraphs (1) (i) through (iii) outline the informal procedures for sections 504 and 508. The procedures retain the 60-day requirement for resolution of a complaint at the informal stage. The informal process focuses on resolution of the complaint at the local level and provides an automatic review by higher level managers. A written decision on the informal complaint must be issued on or before the 60th day by the area/functional vice president. Addition of the area/functional vice president as the final level of review was added to ensure accountability at the highest level.

Subparagraphs (2)(i) through (iv) outline the formal procedures for sections 504 and 508. If the complainant wishes to pursue the complaint beyond the informal stage, s/he may file a formal complaint with the Vice President and Consumer Advocate. If the complainant files a formal complaint, s/he must exhaust the formal procedures before filing suit in any other forum. The general exhaustion requirement of the former section 255.1(c)(5) was clarified in order to prevent confusing and duplicative processing of one complaint. The reference to the Postal Operations Manual was removed because the complaint procedures relating to the Vice President and Consumer Advocate are now contained here.

Section 255.7 Special Arrangements for Postal Services

This section sets forth the types of arrangements that can be made for those individuals eligible under postal regulations for obtaining postal services under special conditions. Members of the public who are not disabled within the meaning of the Rehabilitation Act may qualify for special arrangements pursuant to the postal regulations listed here. In accordance with section 504 or this part, individuals who are disabled may be provided with special arrangements as a reasonable accommodation.

The section, previously found at section 255.2, is essentially unchanged with the exception of editing for clarity and the addition of language on reasonable accommodation under section 504. Specific section numbers contained in the cited manuals were removed because manual revisions have changed where the topics are now found.

Section 255.8 Access to Postal Facilities

This section is essentially unchanged except for editing for clarity and the addition of legal citations to make the cited authorities easier to identify and locate. It was previously found at section 255.3.

Section 255.9 Other Postal Regulations; Authority of Postal Managers and Employees

This section is the same as the original previously found at section 255.4 except that “official” was changed to “manager” and the last sentence referring to misdirected informal complaints was deleted. A similar requirement that postal managers or employees promptly refer informal complaints they receive that they lack the authority to resolve to the appropriate manager was added in section 255.6(c)(1)(i) where it logically belongs.

Although 39 U.S.C. 410, exempts the Postal Service from the rulemaking notice and comment requirements of the Administrative Procedures Act, 5 U.S.C. 553, the Postal Service, nevertheless, invites public comment on the following proposed revisions to 39 CFR part 255.

List of Subjects in 39 CFR Part 255

• Electronic and information technology
• Federal buildings and facilities
• Individuals with disabilities

Accordingly, the Postal Service proposes to revise 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

Complaint procedures.

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

§ 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 here are intended to be consistent with the standards announced by the Architectural and Transportation Barriers Compliance Board. Those standards are codified at 36 CFR part 1194.

§ 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

(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 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, an individual with a disability who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity.

(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.

§ 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.

§ 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.

§ 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.

§ 255.6

Complaint procedures.

(a) Applicability. Except as provided in paragraph (b)(1) of this section, this section applies to all section 504 allegations of discrimination based upon disability in the programs or activities conducted by the Postal Service. Except as provided in paragraph (b)(2) of this section, this section applies to all allegations of section 508 violations.

(b) Employment complaints. (1) 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 EL-603, Equal Employment Opportunity Complaint Processing.

(2) The agency shall process complaints of employees and applicants alleging violations of section 508 and involving employment in accordance with the section 508 procedures which have been added to Handbook EL-603. Section 508 complaints shall be processed to provide the remedies required by section 508 of the Rehabilitation Act.

(c) Complaints by members of the public. 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 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. 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 receipt of the informal complaint, the agency shall issue a written decision detailing the final disposition of the informal complaint and the reasons for that disposition.

(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 issued no later than the 60th day.

(2) Formal complaints. If an informal complaint filed under paragraph (c)(1) of this section is not resolved within 60 days of its receipt, 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 this paragraph (c)(2)(ii), 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 § 255.2(d), is filed after fulfilling the informal exhaustion procedures of § 255.6(c)(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.

§ 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.

(3) Retail service from rural carriers.

(4) Self-service postal centers. Self-service postal centers contain deposit boxes for parcels and letter mail, and vending equipment for the sale of stamps and stamp items. 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.

§ 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

(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 § 255.7 can be provided.

§ 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.

Stanley F. Mires,

Chief Counsel, Legislative.