[Federal Register Volume 67, Number 237 (Tuesday, December 10, 2002)]
[Rules and Regulations]
[Pages 75814-75817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30648]


=======================================================================
-----------------------------------------------------------------------

POSTAL SERVICE

39 CFR Part 255


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

AGENCY: Postal Service.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Postal Service is amending 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. 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: The rule is effective January 9, 2003.

FOR FURTHER INFORMATION CONTACT: Joan C. Goodrich, Esq., (202) 268-3047 
or Christine M. Taylor, Esq., (202) 268-3017.

SUPPLEMENTARY INFORMATION:

Background

    The Workforce Investment Act of 1998, Public Law 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 for accessibility to 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, Public Law 106-246, which contained an amendment to 
section 508, was signed into law. Public Law 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 published in the Federal Register on February 25, 2002 
(67 FR 8489-93), a proposed rule adding a complaint process for section 
508 to its regulations. March 27, 2002, was set as the deadline for 
receipt of any comments relating to the proposed rule. The Postal 
Service received comments from two groups concerned with the rights and 
interests of individuals with disabilities. These comments are 
discussed below. After giving thorough consideration to the comments, 
the Postal Service modified the proposed rule as appropriate and now 
publishes the final rule.

Discussion of Comments

    One group commented on matters outside the scope of this 
rulemaking. Those comments, which addressed specific accommodations in 
Post Offices for the blind and visually impaired, have been passed on 
to the appropriate office within the Postal Service. The second group 
made the following comments.
    1. One comment asked for clarification of how the informal 
complaint can be initiated, and suggested that ``an informal complaint 
can be verbal or in writing.'' The comment suggested that an oral or 
written statement can be the means of lodging the informal complaint. 
The Postal Service is incorporating this comment into the rule to 
reflect that an informal complaint can be made orally or in writing.
    2. One comment asked that the written acknowledgment of the 
informal complaint contain certain specific information such as ``the 
date that the complaint was filed, a description of the complaint 
issue(s), notice of the complainant's right to file a formal complaint 
if the informal complaint is not resolved within 60 days, and notice of 
where to file a formal complaint.'' This information will be 
incorporated into the rule. The date of the filing of the informal 
complaint and the description of issues will be added to the 
acknowledgment letter. Notice of a choice to file a formal complaint or 
to proceed in any other appropriate forum will be added to the written 
decision detailing the final disposition of the informal complaint. 
Where to file a formal complaint will also be given in the notice.
    3. Several miscellaneous comments suggested editing changes which 
have been incorporated as appropriate.
    4. One comment requested that the language requiring exhaustion of 
the formal complaint process be deleted. The rule provides that if the 
decision on the informal complaint denies relief to the complainant, 
``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'' of the Postal Service. If the complainant files 
such a formal complaint, ``the complainant shall exhaust the formal 
complaint procedure before filing suit in any other forum.'' The 
exhaustion requirement was added in order to avoid the problem of one 
case proceeding simultaneously in two forums--administrative and 
judicial. There is no change to the rule as a result of this comment.
    5. One comment asked that the standards of the Architectural 
Barriers Act for newly constructed, altered, and leased postal 
facilities be stated in the rule. However, the rule's purpose is to 
provide a complaint process for section 508. There is no change to the 
rule as a result of this comment.
    6. One comment requested that a nonretaliation provision be added 
to the rule. This comment is being incorporated into the rule and such 
a provision is added.

List of Subjects in 39 CFR Part 255

    Civil rights, Federal buildings and facilities, Individuals with 
disabilities.
    Accordingly, the Postal Service revises 39 CFR part 255 to read as 
follows:

PART 255--ACCESS OF PERSONS WITH DISABILITIES TO POSTAL SERVICE 
PROGRAMS, ACTIVITIES, FACILITIES, AND ELECTRONIC AND INFORMATION 
TECHNOLOGY

Sec.
255.1 Purpose.
255.2 Definitions.
255.3 Nondiscrimination under any program or activity conducted by 
the Postal Service.
255.4 Accessibility to electronic and information technology.
255.5 Employment.

[[Page 75815]]

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.


Sec.  255.1  Purpose.

    (a) This part implements section 504 of the Rehabilitation Act of 
1973, as amended. Section 504 prohibits discrimination on the basis of 
disability in programs or activities conducted by executive agencies or 
by the Postal Service. This part also implements section 508 of the 
Rehabilitation Act of 1973, as amended. Section 508 requires that 
executive agencies and the Postal Service ensure, absent an undue 
burden, that individuals with disabilities have access to electronic 
and information technology that is comparable to the access of 
individuals who are not disabled.
    (b) The standards relating to electronic and information technology 
expressed here are intended to be consistent with the standards 
announced by the Architectural and Transportation Barriers Compliance 
Board on December 21, 2000. Those standards are codified at 36 CFR part 
1194.


Sec.  255.2  Definitions.

    (a) Agency as used in this part means the Postal Service.
    (b) Area/functional vice president also includes his or her 
designee.
    (c) Electronic and information technology (EIT) includes 
``information technology'' and any equipment or interconnected system 
or subsystem of equipment that is used in the creation, conversion, or 
duplication of data or information. The term does not include any 
equipment that contains embedded information technology that is used as 
an integral part of the product, but the principal function of which is 
not the acquisition, storage, manipulation, management, movement, 
control, display, switching, interchange, transmission, or reception of 
data or information.
    (d) Formal complaint means a written statement that contains the 
complainant's name, address, and telephone number; sets forth the 
nature of the complainant's disability; and describes the agency's 
alleged discriminatory action in sufficient detail to inform the agency 
of the nature of the alleged violation of section 504 or of section 
508. It shall be signed by the complainant or by someone authorized to 
do so on the complainant's behalf.
    (e) Individual with a disability. For purposes of this part, 
``individual with a disability'' means any person who:
    (1) Has a physical or mental impairment that substantially limits 
one or more of such person's major life activities;
    (2) Has a record of such an impairment; or
    (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.


Sec.  255.3  Nondiscrimination under any program or activity conducted 
by the Postal Service.

    In accordance with section 504 of the Rehabilitation Act, no 
qualified individual with a disability shall, solely by reason of his 
or her disability, be excluded from participation in, be denied the 
benefits of, or be subjected to discrimination under, any program or 
activity conducted by the Postal Service.


Sec.  255.4  Accessibility to electronic and information technology.

    (a) In accordance with section 508 of the Rehabilitation Act, the 
Postal Service shall ensure, absent an undue burden, that the 
electronic and information technology the agency procures allows:
    (1) Individuals with disabilities who are Postal Service employees 
or applicants to have access to and use of information and data that is 
comparable to the access to and use of information and data by Postal 
Service employees or applicants who are not individuals with 
disabilities; and
    (2) Individuals with disabilities who are members of the public 
seeking information or services from the Postal Service to have access 
to and use of information and data that is comparable to the access to 
and use of information and data by members of the public who are not 
individuals with disabilities.
    (b) When procurement of electronic and information technology that 
meets the standards published by the Architectural and Transportation 
Barriers Compliance Board would pose an undue burden, the Postal 
Service shall provide individuals with disabilities covered by 
paragraph (a) of this section with the information and data by an 
alternative means of access that allows the individuals to use the 
information and data.


Sec.  255.5  Employment.

    No qualified individual with a disability shall, on the basis of 
disability, be subjected to discrimination in employment with the 
Postal Service. The definitions, requirements, and procedures of 
section 501 of the Rehabilitation Act of 1973, as established by the 
Equal Employment Opportunity Commission in 29 CFR part 1614 shall apply 
to employment within the Postal Service.


Sec.  255.6  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

[[Page 75816]]

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 in this section. 
A complainant shall first exhaust informal administrative procedures 
before filing a formal complaint.
    (1) Informal complaints relating to Postal Service programs or 
activities and to EIT.
    (i) A complainant initiates the informal process by informing the 
responsible postal manager orally or in writing of the alleged 
discrimination or inaccessibility of Postal Service programs, 
activities, or EIT. Postal managers or employees who receive informal 
complaints that they lack the authority to resolve must promptly refer 
any such informal complaint to the appropriate postal manager, and at 
the same time must notify the complainant of the name, address, and 
telephone number of the person handling the complaint.
    (ii) Resolution of the informal complaint and time limits. Within 
15 days of receipt of the informal complaint, the responsible postal 
manager must send the complainant a written acknowledgement of the 
informal complaint. The written acknowledgment will include the date 
the complaint was filed and a description of the issue(s). If the 
matter cannot be resolved within 30 days of its receipt, the 
complainant must be sent a written interim report which explains the 
status of the informal complaint and the proposed resolution of the 
matter. On or before the 60th day from the agency's receipt of the 
informal complaint, the appropriate area/functional vice president 
within the Postal Service shall send a written decision to the 
complainant detailing the final disposition of the informal complaint 
and the reasons for that disposition. The decision shall contain the 
notice that the complainant may challenge an informal decision which 
denies relief either by proceeding in any other appropriate forum or by 
filing a formal complaint with the Vice President and Consumer 
Advocate. The notice will give the address of the Vice President and 
Consumer Advocate. The notice shall also state that if the complainant 
chooses to file a formal complaint, the complainant shall exhaust the 
formal complaint procedures before filing suit in any other forum.
    (iii) Automatic review. The responsible postal manager's proposed 
disposition of the informal complaint shall be submitted to the 
appropriate district/program manager for review. The district/program 
manager shall forward the proposed disposition to the area/functional 
vice president for review and issuance of the written decision. This 
automatic review process shall be completed such that the written 
decision of the area/functional vice president shall be sent to the 
complainant no later than the 60th day from the agency's receipt of the 
informal complaint.
    (2) Formal complaints. If an informal complaint filed under 
paragraph (c)(1) of this section denies relief, the complainant may 
seek relief in any other appropriate forum, including the right to file 
a formal complaint with the Vice President and Consumer Advocate in 
accordance with the procedures in paragraph (c)(2)(i) through (iv) of 
this section. 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 Sec.  255.2(d), if filed after fulfilling the 
informal exhaustion procedures of paragraph (c)(1) of this section, 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.
    (d) No retaliation. No person shall be subject to retaliation for 
opposing any practice made unlawful by the Rehabilitation Act of 1973, 
as amended, 29 U.S.C. 791, or for participating in any stage of 
administrative or judicial proceedings under the statute.


Sec.  255.7  Special arrangements for postal services.

    Members of the public who are unable to use or who have difficulty 
using certain postal services may be eligible under postal regulations 
for special arrangements. Some of the special arrangements that the 
Postal Service has authorized are listed in this section. No one is 
required to use any special arrangement offered by the Postal Service, 
but an individual's refusal to make use of a particular special 
arrangement does not require the Postal Service to offer other special 
arrangements to that individual.
    (a) The Postal Operations Manual offers information on special 
arrangements for the following postal services:
    (1) Carrier delivery services and programs.
    (2) Postal retail services and programs.
    (i) Stamps by Mail[reg] or stamps by phone.

[[Page 75817]]

    (ii) Retail service from rural carriers.
    (iii) Self-service postal centers. Self-service postal centers 
contain vending equipment for the sale of stamps and stamp items, and 
contain deposit boxes for parcels and letter mail. Many centers are 
accessible to individuals in wheelchairs. Information regarding the 
location of the nearest center may be obtained from a local Post 
Office.
    (b) The Domestic Mail Manual, the Administrative Support Manual, 
and the International Mail Manual contain information regarding 
postage-free mailing for mailings that qualify.
    (c) Inquiries and requests. Members of the public wishing further 
information about special arrangements for particular postal services 
may contact their local postal manager.
    (d) Response to a request or complaint regarding a special 
arrangement for postal services. A local postal manager receiving a 
request or complaint about a special arrangement for postal services 
must provide any arrangement as required by postal regulations. If no 
special arrangements are required by postal regulations, the local 
postal manager, in consultation with the district manager or area 
manager, as needed, may provide a special arrangement or take any 
action that will accommodate an individual with a disability as 
required by section 504 of the Rehabilitation Act of 1973 or by this 
part.


Sec.  255.8  Access to postal facilities.

    (a) Legal requirements and policy. (1) ABA standards. Where the 
design standards of the Architectural Barriers Act (ABA) of 1968, 42 
U.S.C. 4151 et seq., do not apply, the Postal Service may perform a 
discretionary retrofit to a facility in accordance with this part to 
accommodate individuals with disabilities.
    (2) Discretionary modifications. The Postal Service may modify 
facilities not legally required to conform to ABA standards when it 
determines that doing so would be consistent with efficient postal 
operations. In determining whether modifications not legally required 
should be made, due regard is to be given to:
    (i) The cost of the discretionary modification;
    (ii) The number of individuals to be benefited by the modification;
    (iii) The inconvenience, if any, to the general public;
    (iv) The anticipated useful life of the modification to the Postal 
Service;
    (v) Any requirement to restore a leased premises to its original 
condition at the expiration of the lease, and the cost of such 
restoration;
    (vi) The historic or architectural significance of the property in 
accordance with the National Historic Preservation Act of 1966, 16 
U.S.C. 470 et seq.;
    (vii) The availability of other options to foster service 
accessibility; and
    (viii) Any other factor that is relevant and appropriate to the 
decision.
    (b) Inquiries and requests. (1) Inquiries concerning access to 
postal facilities, and requests for discretionary alterations of postal 
facilities not covered by the design standards of the ABA, may be made 
to the local postal manager of the facility involved.
    (2) The local postal manager's response to a request or complaint 
regarding an alteration to a facility will be made after consultation 
with the district manager or the area manager. If the determination is 
made that modification to meet ABA design standards is not required, a 
discretionary alteration may be made on a case-by-case basis in 
accordance with the criteria listed in paragraph (a)(2) of this 
section. If a discretionary alteration is not made, the local postal 
manager should determine if a special arrangement for postal services 
under Sec.  255.7 can be provided.


Sec.  255.9  Other postal regulations; authority of postal managers and 
employees.

    This part supplements all other postal regulations. Nothing in this 
part is intended 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.
[FR Doc. 02-30648 Filed 12-9-02; 8:45 am]
BILLING CODE 7710-12-P