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FDIC Federal Register Citations

[Federal Register: May 13, 2004 (Volume 69, Number 93)]
[Rules and Regulations]
[Page 26490-26494]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13my04-4]

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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: Final rule.

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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, (202) 416-4320,
or Joan S. Bunning, Counsel, Legal

[[Page 26491]]

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 (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.
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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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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 Sec. 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 Sec.
352.4 is therefore unnecessary.
The new Sec. 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.

[[Page 26492]]

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.


0
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

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.

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 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.


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

[[Page 26493]]

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
Sec. 352.6 of this part.


Sec. 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 Sec. 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
Sec. 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 Sec. Sec. 352.2 and 352.3(b) of
this regulation.


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.
(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.


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

[[Page 26494]]

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 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 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.
(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.


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 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.
[FR Doc. 04-10806 Filed 5-12-04; 8:45 am]

BILLING CODE 6714-01-P

Last Updated 05/14/2004 regs@fdic.gov