04-10806. Access of Persons With Disabilities to FDIC Programs, Activities, Facilities, and Electronic and Information Technology

AGENCY:

Federal Deposit Insurance Corporation.

ACTION:

Final rule.

SUMMARY:

The Federal Deposit Insurance Corporation (FDIC) is amending its regulations to update certain information and implement section 508 of the Rehabilitation Act. 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:

Effective Date: This final rule shall be effective June 14, 2004.

FOR FURTHER INFORMATION CONTACT:

Earl F. McJett, Information Management Analyst, Office of Diversity and Economic Opportunity, [phone], or Joan S. Bunning, Counsel, Legal Division, [phone], 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 (1986).

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 (65 FR 80500). The effective date for enforcement of section 508 became June 21, 2001.

II. The Proposed Rule

The FDIC has proposed to amend its regulations to reflect these legal requirements and to update regulations to reflect current terminology, practice, and procedures.^[1] On November 24, 2003 the draft Final Rule was approved by the Board and subsequently published in the Federal Register.

The Notice of Proposed Rulemaking was published in the Federal Register on November 24, 2003, 68 FR 65850, and the public comment period for this notice ended on January 23, 2004.

III. Comments on the Proposed Rule

During the sixty day public comment period which ended on January 23, 2004 no comments were received. Therefore, the FDIC publishes this final rule without revision.

IV. The Final Rule

Section 352.1 Purpose

This section has been amended to state that the purpose of the regulation is to implement and update 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 has been 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 has been 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.

Section 352.4 Nondiscrimination in Any Program or Activity Conducted by FDIC

This section was previously designated 352.5. Current § 352.4 is deleted. 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 § 352.4 is therefore unnecessary.

The new § 352.4 states 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 has been 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 further provides 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 has been 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 has been 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 has been amended to provide that the FDIC shall take appropriate steps to effectively communicate with participants in FDIC programs and activities. The section has also been 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 Opportunity. The section has also been amended to provide the current address and telephone numbers of ODEO for those who wish to contact that FDIC component.

Section 352.10 Compliance Procedures

This section has been 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 has also been 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 has been 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 has been amended to include a reference to EIT and section 508.

V. Effective Date

This final rule takes effect 30 days after the date of its publication in the Federal Register, consistent with the delayed effective date requirement of the Administrative Procedure Act. See 5 U.S.C. 553(d).

VI. Paperwork Reduction Act

The final rule does 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.

VII. Regulatory Flexibility Act

Pursuant to 5 U.S.C. 605(b) the FDIC certifies that the final rule will 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 final 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.

VIII. The Treasury and General Government Appropriations Act, 1999—Assessment of Federal Regulations and Policies on Families

The FDIC has determined that the final 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).

IX. Small Business Regulatory Enforcement Fairness Act

Section 804 of the Small Business Regulatory Flexibility Enforcement Fairness Act (“SBREFA”), 5 U.S.C. 801 et al., defines “rule” to exclude any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties. The amendments to Part 352 are intended to ensure that individuals with disabilities are provided with access to EIT comparable to the access of those who are not disabled, thus putting individuals with disabilities in a position of parity. The amendments therefore do not substantially affect the rights or obligations of non-agency parties. Therefore, the rule is not covered by SBREFA and is not being reported to Congress.

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 stated above, the Board of Directors of the Federal Deposit Insurance Corporation hereby revises Part 352 of chapter III of Title 12 of the Code of Federal Regulations as follows:

PART 352—NONDISCRIMINATION ON THE BASIS OF DISABILITY

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.

Authority: 12 U.S.C. 1819(a); 29 U.S.C. 794d.

§ 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 final regulation 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.

§ 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 regulation 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 regulation, they shall be governed only by the standards set forth in § 352.6 of this part.

§ 352.3

Definitions.

For purposes of this part, the term—

(a) “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 § 352.2.

(b) “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).

(c) “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.

(d) “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.

(e) “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 § 352.6.

(f) “Sections 504 and 508” mean sections 504 and 508 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794 and 794d)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955), and the Workforce Investment Act of 1998 (Pub. L. 105-220, 112 Stat. 936). As used in this regulation, sections 504 and 508 shall be applied only to the programs, activities, and EIT conducted by the FDIC as set forth in §§ 352.2 and 352.3(b) of this regulation.

§ 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.

§ 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.

(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 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.

§ 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.

§ 352.7

Accessibility of programs and activities: Existing facilities.

The FDIC shall operate each of the programs or activities set forth in § 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.

§ 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.

§ 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 [phone] and [phone] (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.

§ 352.10

Compliance procedures.

(a) Applicability. Paragraph (b) of this section applies to employment complaints. The remaining sections 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 § 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.

(i) The time limits set forth in (e) and (h) above 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.

§ 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 regulation.

* * * * *

Dated at Washington, DC, this 6th day of April, 2004.

By order of the Board of Directors.

Federal Deposit Insurance Corporation.

Valerie J. Best,

Assistant Executive Secretary.

Footnotes

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.