FDIC Federal Register Citations

[Federal Register: November 24, 2003 (Volume 68, Number 226)]

[Proposed Rules]

[Page 65850-65854]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr24no03-9]

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Proposed Rules

Federal Register

________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of

the proposed issuance of rules and regulations. The purpose of these

notices is to give interested persons an opportunity to participate in

the rule making prior to the adoption of the final rules.

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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 352

RIN 3064-AC58

Access of Persons With Disabilities to FDIC Programs, Activities, Facilities, and Electronic

and Information Technology

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Notice of proposed rulemaking with request for comments.

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SUMMARY: The Federal Deposit Insurance Corporation (FDIC) proposes to

revise its regulations to implement section 508 of the Rehabilitation

Act of 1973, as amended. Section 508 requires each Federal agency or

department to ensure that the electronic and information technology

(EIT) they develop or procure allows individuals with disabilities

access to EIT comparable to the access of those who are not disabled,

unless the agency would incur an undue burden.

DATES: Written comments must be received on or before January 23, 2004.

ADDRESSES: You may submit comments, identified by RIN number 3064-AC58,

by any of the following methods:

Agency Web site: http://www.FDIC.gov/regulations/laws/federal/propose.html

.

Mail: Robert E. Feldman, Executive Secretary, Attention:

Comments/Legal ESS, Federal Deposit Insurance Corporation, 550 17th

Street, NW., Washington, DC 20429.

Hand Delivered/Courier: The guard station at the rear of

the 550 17th Street Building (located on F Street), on business days

between 7 a.m. and 5 p.m. E-mail: comments@fdic.gov. Include RIN number

3064-AC58 in the subject line of the message.

Comments may be inspected and photocopied in the FDIC

Public Information Center, Room 100, 801 17th Street, NW., Washington,

DC, between 9 a.m. and 4:30 p.m. on business days.

Instructions: Submissions received must include the agency name and

docket number or Regulatory Information Number (RIN) for this

rulemaking. Comments received will be posted without change to

http://www.FDIC.gov/regulations/laws/federal/propose.html, including any

personal information provided. For detailed instructions on submitting

comments and additional information on the rulemaking process, see the

``Public Participation'' heading of the SUPPLEMENTARY INFORMATION

section of this document.

FOR FURTHER INFORMATION CONTACT: Earl F. McJett, Information Management

Analyst, Office of Diversity and Economic Opportunity, (202) 416-4320,

or Joan S. Bunning, Counsel, Legal Division, (202) 898-8834, Federal

Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC

20429.

SUPPLEMENTARY INFORMATION:

I. Background

On March 20, 1986, the FDIC promulgated 12 CFR part 352 to

implement the spirit of section 504 of the Rehabilitation Act of 1973

(the Rehabilitation Act) (29 U.S.C. 794), as amended. Section 504

prohibits discrimination on the basis of disability as it applies to

programs and activities conducted by various agencies. Although the

FDIC did and still does not believe that Congress contemplated that

section 504 should cover non-appropriated, independent regulatory

agencies such as the FDIC, it voluntarily chose to promulgate this

regulation pursuant to section 504. See 51 FR 9638.

The Workforce Investment Act of 1998 (the WIA) (Pub. L. 105-220,

112 Stat. 936) amending section 508 of the Rehabilitation Act (29

U.S.C. 794d), was signed into law on August 7, 1998. As amended,

section 508 requires each Federal agency or department to ensure that

the EIT it develops or procures allows individuals with disabilities

access comparable to those who are not disabled, unless the agency

would incur an undue burden. In addition, the amended section 508

requires the Architectural and Transportation Barriers Compliance Board

(Access Board) to publish standards defining EIT and setting forth the

technical and functional performance criteria necessary to

accessibility for such technology. The WIA was effective as of August

7, 2000. The statute required the Access Board to publish its final

standards by February 7, 2000.

On July 13, 2000, the Military Construction Appropriations Act for

Fiscal Year 2001 (Pub. L. 106-246, 114 Stat. 511) was signed into law.

Section 2405 of that statute amended section 508 to delay the section's

effective date for enforcement to 6 months from the publication of the

Access Board's final standards. The Access Board's final standards were

published on December 21, 2000. See 65 FR 80500-80528. The effective

date for enforcement of section 508 became June 21, 2001. The FDIC

proposes to amend its regulations to reflect these legal requirements

and to update regulations to reflect current terminology, practice, and

procedures.\1\

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\1\ In addition to the proposed revisions to Part 352, the FDIC

issued a directive on September 28, 2001, number 2710.11, that sets

forth complaint procedures for individuals with disabilities, both

Federal employees and members of the public, who have been denied

access to EIT. FDIC issued a directive on July 18, 2003, number

2711.1, that contains the corporate policy on section 508 of the

Rehabilitation Act.

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II. Section-by-Section Analysis

Section 352.1 Purpose

This section would be amended to state that the purpose of the

regulation is to implement the requirements of section 508 of the

Rehabilitation Act of 1973, as amended by the WIA, in addition to

section 504 of the Rehabilitation Act.

Section 352.2 Application

This section would be amended to state that Part 352 applies to EIT

access in addition to the agency's programs and activities. It also

updates references to certain components of the FDIC such as the Office

of Legislative Affairs and lists the FDIC's Internet website as one of

the agency programs or activities to which Part 352 applies.

Section 352.3 Definitions

This section would be amended to include definitions specifically

pertaining to EIT, to update terminology by substituting the term

``individual with a disability'' for ``handicapped person,'' and to

define references in the regulation to section 508 and pertinent

statutes.

[[Page 65851]]

Section 352.4 Nondiscrimination in Any Program or Activity Conducted by

FDIC

This section is currently designated 352.5. Current section 352.4

would be deleted by the proposed rule. This section pertained to a

self-imposed requirement that the FDIC must evaluate its program to

implement section 504 of the Rehabilitation Act within one year of the

regulation's effective date. This self-evaluation has been conducted by

the FDIC. The current section 352.4 is therefore unnecessary.

The new section 352.4 would state that no qualified individual with

a disability shall be excluded from participation in, be denied the

benefits of, or otherwise be subject to discrimination on the basis of

that disability in FDIC programs or activities.

Section 352.5 Accessibility to Electronic and Information Technology

With respect to technology access, this new section states that the

FDIC will ensure that employees and the public with disabilities will

have access to EIT comparable to those without disabilities, unless an

undue burden would be imposed on the FDIC.

Section 352.6 Employment

This section would be amended to provide that no qualified

individual with a disability shall, on the basis of that disability, be

subjected to discrimination in employment in any program or activity

conducted by the FDIC. The section would further provide that the

definitions, requirements, and procedures of the Rehabilitation Act

that pertain to employment discrimination, as reflected in the

Rehabilitation Act's implementing regulations, will apply to FDIC

employment.

Section 352.7 Accessibility of Programs and Activities: Existing

Facilities

This section would be amended to make plain that the FDIC shall

operate its programs and activities to be readily accessible to and

usable by persons with disabilities.

Section 352.8 Program Accessibility: New Construction and Alterations

This section would be amended to provide that each building or part

of a building where FDIC programs or activities will occur which is

either new or substantially altered for the FDIC shall be fashioned for

ready access and use by individuals with disabilities.

Section 352.9 Communications

This section would be amended to provide that the FDIC shall take

appropriate steps to effectively communicate with participants in FDIC

programs and activities. The section would also be amended to refer to

individuals with disabilities rather than handicapped persons and to

the Office of Diversity and Economic Opportunity (ODEO) rather than the

superseded Office of Equal Employment. The section would also be

amended to provide the current address and telephone numbers of ODEO

for those who wish to contact that FDIC component. Finally, the section

would be amended to state that information as to where FDIC programs or

activities are conducted shall be provided at the primary entrance to

each FDIC facility.

Section 352.10 Compliance Procedures

This section would be amended to provide that the section applies

to claims of discrimination on the basis of disability in FDIC programs

and activities or the denial of access to EIT. The section would also

be amended to update and correct references to the Office of Diversity

and Economic Opportunity (ODEO), the procedures for filing and

processing complaints alleging disability discrimination in FDIC

programs or activities and denial of access to EIT. Moreover, the

section would be amended to shorten the time period during which the

FDIC must reach a finding with respect to a complaint alleging

discrimination on the basis of disability in FDIC programs and

activities and denial of access to EIT from 180 to 120 days.

Section 352.11 Notice

This section would be amended to include a reference to EIT and

section 508.

III. Request for Comments

The Board of Directors of the FDIC (the Board) is seeking comment

on whether the measures outlined in this notice of proposed rulemaking

will fulfill the objectives set for the agency by section 508 of the

Rehabilitation Act. The Board welcomes any suggestions that commenters

might have for ways to improve upon the suggested measures or

additional steps that the FDIC might take to promote access by

individuals with disabilities to EIT and to prevent discrimination on

the basis of disability.

IV. Paperwork Reduction Act

The proposed rule would not involve any collections of information

under the Paperwork Reduction Act (44 U.S.C. 3501, et seq.).

Consequently, no information has been submitted to the Office of

Management and Budget for review.

V. Regulatory Flexibility Act

Pursuant to 5 U.S.C. 605(b) the FDIC certifies that the proposed

rule would not have a significant economic impact on a substantial

number of small businesses within the meaning of the Regulatory

Flexibility Act (5 U.S.C. 601, et seq.). The proposed rule describes

how the FDIC will implement section 508 of the Rehabilitation Act to

ensure that the EIT the agency develops and procures will allow

individuals with disabilities access to EIT comparable to the access of

those who are not disabled, unless the agency would incur an undue

burden. It requires no specific or general action from any state

nonmember bank nor does it impose any new reporting, recordkeeping or

other compliance requirements. Accordingly, the requirements relating

to an initial and final regulatory flexibility analysis are not

applicable.

VI. Impact on Families

The proposed rule will not affect family well-being within the

meaning of section 654 of the Treasury and General Government

Appropriations Act, enacted as part of the Omnibus Consolidated and

Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112

Stat. 2681).

List of Subjects in 12 CFR Part 352

Access, Civil rights, Electronic and information technology, Equal

employment opportunity, Federal building and facilities, Individuals

with disabilities.

For the reasons set forth in the preamble, the Board of Directors

of the Federal Deposit Insurance Corporation hereby proposes to revise

Part 352 of Title 12 of the Code of Federal Regulations to read as

follows:

PART 352--NONDISCRIMINATION ON THE BASIS OF DISABILITY

Sec.

352.1 Purpose.

352.2 Application.

352.3 Definitions.

352.4 Nondiscrimination in any program or activity conducted by the

FDIC.

352.5 Accessibility to electronic and information technology.

352.6 Employment.

352.7 Accessibility of programs and activities: Existing facilities.

352.8 Program accessibility: New construction and alterations.

352.9 Communications.

352.10 Compliance procedures.

352.11 Notice.

[[Page 65852]]

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

Sec. 352.1 Purpose.

(a) One purpose of this part is to implement the spirit of section

504 of the Rehabilitation Act of 1973 (the Rehabilitation Act) as

amended by section 119 of the Rehabilitation, Comprehensive Services,

and Developmental Disabilities Amendments of 1978 and the Workforce

Investment Act of 1998. Section 504 prohibits discrimination on the

basis of disability in programs and activities conducted by a federal

executive agency. Although the FDIC does not believe that Congress

contemplated coverage of non-appropriated, independent regulatory

agencies such as the FDIC, the FDIC has chosen to promulgate this part

to ensure that, to the extent practicable, persons with disabilities

are provided with equal access to FDIC programs and activities.

(b) This part is also intended to implement section 508 of the

Rehabilitation Act as amended. Section 508 requires each federal agency

or department to ensure that the electronic and information technology

they procure allows individuals with disabilities access to that

technology comparable to the access of those who are not disabled,

unless the agency would incur an undue burden.

Sec. 352.2 Application.

(a) This part applies to all programs, activities, and electronic

and information technology developed, procured, maintained, used or

conducted by the FDIC. The following programs and activities involve

the direct provision of benefits and services to, or participation by,

members of the public:

(1) Attending Board of Directors meetings open to the public and

all other public meetings;

(2) Making inquiries or filing complaints at the FDIC Office of

Legislative Affairs and Office of Public Affairs;

(3) Using the FDIC library in Washington, DC;

(4) Using the FDIC Web site on the Internet;

(5) Visiting an insured bank at which they conducted business (or

an alternative liquidation site selected by the FDIC) and which has

become insolvent, or been purchased by another bank under FDIC

supervision, for the purpose of:

(i) Collecting FDIC checks for the insured amount of their deposits

previously held in such bank; and/or

(ii) Discussing with FDIC representatives matters related to the

repayment of debts which they previously owed to such bank, prior to

its failure or purchase by another bank under FDIC supervision;

(6) Seeking employment with the FDIC;

(b) This part governs the conduct of FDIC personnel in their

interaction with employees of insured banks and employees of other

state or federal agencies while discharging the FDIC's statutory

obligations as insurer and/or receiver of financial institutions. It

does not apply to financial institutions insured by the FDIC.

(c) Although application for employment and employment with the

FDIC are programs and activities of the FDIC for purposes of this part,

they shall be governed only by the standards set forth in Sec. 352.6

of this part.

Sec. 352.3 Definitions.

For purposes of this part, the term--

Auxiliary aids means services or devices that enable persons with

impaired sensory, manual, or speaking skills to have an equal

opportunity to participate in, and enjoy the benefits of, the FDIC

programs or activities, and Electronic and Information Technology set

forth in Sec. 352.2.

Electronic and Information Technology (EIT) has the same meaning as

``information technology'' except EIT also includes any equipment or

interconnected system or subsystem of equipment that is used in the

creation, conversion, or duplication of data or information. The term

EIT includes, but is not limited to, telecommunication products (such

as telephones), information kiosks and transaction machines, worldwide

web sites, multimedia, and office equipment (such as copiers and fax

machines).

Facility means all or any portion of buildings, structures,

equipment, roads, walks, parking lots and other real or personal

property. As used in this definition, ``personal property'' means only

furniture, carpeting and similar features not considered to be real

property.

Individual with a disability means any person who has a physical or

mental impairment that substantially limits one or more major life

activities, has a record of such an impairment, or is regarded as

having such an impairment.

Qualified individual with a disability means--

(1) With respect to any FDIC program or activity in which a person

is required to perform services or to achieve a level of

accomplishment, an individual with a disability who meets the essential

eligibility requirements and can achieve the purpose of the program or

activity without modifications in the program or activity that the FDIC

can determine on the basis of a written record would result in a

fundamental alteration in its nature;

(2) With respect to any other program or activity, an individual

with a disability who meets the essential eligibility requirements for

participation in, or receipt of benefits from, that program or

activity;

(3) With respect to employment, an individual with a disability as

defined in 29 CFR 1630.2(g), which is made applicable to this part by

Sec. 352.6.

Sections 504 and 508 mean sections 504 and 508 of the

Rehabilitation Act of 1973 (Public Law 93-112, 87 Stat. 394 (29 U.S.C.

794 and 794d)), as amended by the Rehabilitation Act Amendments of 1974

(Public Law No. 93-516, 88 Stat. 1617), the Rehabilitation,

Comprehensive Services, and Developmental Disabilities Amendments of

1978 (Public Law 95-602, 92 Stat. 2955), and the Workforce Investment

Act of 1998 (Public Law 105-220, 112 Stat. 936). As used in this part,

sections 504 and 508 shall be applied only to the programs, activities,

and EIT conducted by the FDIC as set forth in Sec. Sec. 352.2 and

352.3(b) of this part.

Sec. 352.4 Nondiscrimination in any program or activity conducted by

the FDIC.

In accordance with section 504 of the Rehabilitation Act, no

qualified individual with a disability shall, solely by reason of his

or her disability, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination in any program or

activity conducted by the FDIC.

Sec. 352.5 Accessibility to electronic and information technology.

(a) In accordance with section 508 of the Rehabilitation Act, the

FDIC shall ensure, absent an undue burden, that the electronic and

information technology the agency develops, procures, maintains or

allows:

(1) Individuals with disabilities who are FDIC employees or

applicants to have access to and use of information and data that is

comparable to the access to and use of information and data by FDIC

employees or applicants who are not individuals with disabilities; and

(2) Individuals with disabilities who are members of the public

seeking information or services from the FDIC to have access to and use

of information and data that is comparable to the access to and use of

information and data by members of the public who are not individuals

with disabilities.

[[Page 65853]]

(b) When development or procurement of electronic and information

technology that meets the standards published by the Architectural and

Transportation Barriers Compliance Board, 36 CFR part 1194, would pose

an undue burden, the FDIC shall provide individuals with disabilities

covered by paragraph (a) of this section with the information and data

by an alternative means of access that allows the individuals to use

the information and data.

Sec. 352.6 Employment.

No qualified individual with a disability shall, on the basis of

that disability, be subjected to discrimination in employment in any

program or activity conducted by the FDIC. The definitions,

requirements, and procedures (including those pertaining to employment

discrimination complaints) of sections 501 of the Rehabilitation Act of

1973, as established in 29 CFR parts 1614 and 1630, shall apply to

employment in the FDIC.

Sec. 352.7 Accessibility of programs and activities: Existing

facilities.

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

in Sec. 352.2 of this part so that when viewed in its entirety, the

program or activity is readily accessible to and usable by individuals

with disabilities.

Sec. 352.8 Program accessibility: New construction and alterations.

Each building or part of a building, whether newly constructed, or

substantially altered, in which FDIC programs or activities will be

conducted, shall be designed, constructed or altered so as to be

readily accessible to, and usable by, individuals with disabilities.

Sec. 352.9 Communications.

(a) The FDIC shall take appropriate steps to ensure effective

communication with participants in FDIC programs, activities and EIT.

(1) The FDIC shall furnish appropriate auxiliary aids where

necessary to afford an individual with a disability an equal

opportunity to participate in, and enjoy the benefits of, the FDIC

programs or activities.

(i) In determining what type of auxiliary aid is necessary, the

FDIC shall give primary consideration to any reasonable requests of the

individual with a disability.

(ii) The FDIC need not provide individually prescribed devices,

readers for personal use or study, or other devices of a personal

nature.

(2) Where the FDIC communicates by telephone, it shall use

telecommunications devices for deaf persons (TDD's) or equally

effective telecommunication systems with hearing impaired participants

and beneficiaries.

(b) The FDIC shall ensure that interested persons, including

persons with impaired vision or hearing, can obtain information as to

the existence and location of accessible services, activities,

facilities and EIT. Interested persons may obtain such information by

calling, writing or visiting the FDIC Office of Diversity and Economic

Opportunity (ODEO), located at 801 17th Street, NW., Washington, DC

20434. The ODEO telephone number is (202) 416-4000 and (202) 416-2487

(TDD).

(c) The FDIC shall provide information at a primary entrance to

each of its facilities where programs or activities are conducted,

directing users to a location at which they can obtain information

about accessible facilities. The international symbol for accessibility

shall be used at each primary entrance of an accessible facility.

Sec. 352.10 Compliance procedures.

(a) Applicability. Paragraph (b) of this section applies to

employment complaints. The remaining paragraphs in this section concern

complaints alleging disability discrimination in FDIC programs or

activities and denial of technology access.

(b) Employment complaints. The FDIC shall process complaints

alleging employment discrimination on the basis of disability according

to the procedures established by the Equal Employment Opportunity

Commission in 29 CFR parts 1614 and 1630 pursuant to section 501 of the

Rehabilitation Act of 1973 (29 U.S.C. 791).

(c) Informal process. A complainant shall first exhaust informal

administrative procedures before filing a formal complaint alleging

disability discrimination in FDIC programs or activities, or a denial

of technology access. The FDIC's Office of Diversity and Economic

Opportunity shall be responsible for coordinating implementation of

this section. An aggrieved individual initiates the process by filing

an informal complaint with ODEO within 180 calendar days from the date

of the alleged disability discrimination or denial of access to

electronic information technology. An informal complaint with respect

to any FDIC program or activity must include a written statement

containing the individual's name and address which describes the FDIC's

action in sufficient detail to inform the FDIC of the nature and date

of the alleged violation of these regulations. An informal complaint

for denial of technology access must clearly identify the individual

and the manner in which the EIT was inaccessible. All informal

complaints shall be signed by the complainant or one authorized to do

so on his or her behalf. Informal complaints filed on behalf of third

parties shall describe or identify (by name if possible) the alleged

victim of discrimination or denial of technology access. During the

informal resolution process, ODEO has 30 days to attempt a resolution

of the matter. If the aggrieved individual elects to participate in

mediation, the period for attempting informal resolution will be

extended for an additional 60 calendar days. If the matter is not

resolved informally, the individual will be provided written notice of

the right to file a formal complaint. All complaints should be sent to

the FDIC's Office of Diversity and Economic Opportunity, 801 17th

Street, NW., Washington, DC 20434.

(d) If the FDIC receives a complaint over which it does not have

jurisdiction, it shall promptly notify the complainant and shall make

reasonable efforts to refer the complainant to the appropriate

government entity.

(e) Formal complaints. The individual must file a written formal

complaint within 15 calendar days after receiving the notice of a right

to file a formal complaint. Formal complaints must be filed with the

FDIC Chairman or the ODEO Director. Within 120 days of the receipt of

such a complaint for which it has jurisdiction, the FDIC shall notify

the complainant of the results of the investigation in a letter

containing--

(1) A finding regarding the alleged violations;

(2) A description of a remedy for each violation found; and

(3) A notice of the right to appeal.

(f) Appeals of the findings or remedies must be filed by the

complainant within 30 days of receipt from the FDIC of the letter

required by Sec. 352.10(e). The FDIC may extend this time for good

cause.

(g) Timely appeals shall be accepted and processed by the FDIC

Chairman or ODEO Director.

(h) The FDIC Chairman or ODEO Director shall notify the complainant

of the results of the appeal within 60 days of the receipt of the

request. If the FDIC Chairman or ODEO Director determines that

additional information is needed from the complainant, he or she shall

have 60 days from the date of receipt of the additional information to

make a determination on the appeal.

[[Page 65854]]

(i) The time limits set forth in paragraphs (e) and (h) of this

section may be extended for an individual case when the FDIC Chairman

or ODEO Director determines that there is good cause, based on the

particular circumstances of that case.

(j) The FDIC may delegate its authority for conducting complaint

investigations to other federal agencies or independent contractors,

except that the authority for making the final determination may not be

delegated.

Sec. 352.11 Notice.

The FDIC shall make available to employees, applicants,

participants, beneficiaries, and other interested persons such

information regarding the provisions of this part and its applicability

to the programs or activities conducted by the FDIC, and make such

information available to them in such manner as the Chairman or

designee finds necessary to apprise such persons of the protections

against discrimination under section 504 or technology access provided

under section 508 and this part.

Dated: November 4, 2003.

By order of the Board of Directors of the Federal Deposit

Insurance Corporation.

Robert E. Feldman,

Executive Secretary.

[FR Doc. 03-29090 Filed 11-21-03; 8:45 am]

BILLING CODE 6714-01-P