[Federal Register Volume 69, Number 144 (Wednesday, July 28, 2004)]
[Rules and Regulations]
[Pages 44962-44965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17126]



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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.

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SUMMARY: The Postal ServiceTM is amending its regulations in 
order to add a complaint process for employees and applicants under 
section 508 of the Rehabilitation Act of 1973, as amended.

DATES: The rule is effective August 27, 2004.

FOR FURTHER INFORMATION CONTACT: Joan C. Goodrich, Esq., (202) 268-
3047.

SUPPLEMENTARY INFORMATION: 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, Public Law 105-220, 112 Stat. 536 (1998), to 
add enforcement provisions and to require agencies to add a complaint 
process for section 508. A complaint process under section 508 for 
members of the public who are disabled was added to part 255 through a 
Federal Register publication of a proposed rule on February 25, 2002 
(67 FR 8489-8493). A final rule for the section 508 complaint process 
for members of the public was published in the Federal Register on 
December 10, 2002. This final rule was effective January 9, 2003.
    A section 508 complaint process for employees and applicants who 
are disabled is now being added to part 255.

Section-by-Section Analysis

Section 255.2 Definitions

    A new subparagraph (3) has been added to (h) Qualified individual 
with a disability in order to give applicants and employees the 
definition of a ``qualified individual with a disability'' under 
section 501 of the Rehabilitation Act.

Section 255.6 Processing of Complaints

    The title of this section has been changed to reflect that it 
explains how various types of complaints will be processed and to 
distinguish it from the complaint procedures in paragraph (d) of this 
section.
    (a) Section 504 complaints, employment.
    Paragraph (a) has been renamed and now provides that section 504 
complaints alleging employment discrimination and brought by employees 
or applicants are to be processed under the procedures established for 
section 501 complaints.
    (b) Section 504 complaints, members of the public.
    Paragraph (b) has been renamed and now provides that section 504 
complaints alleging disability discrimination in any program or 
activity of the Postal Service and brought by members of the public are 
to be processed under the procedures of this part.
    (c) Section 508 complaints, members of the public, employees and 
applicants.
    Paragraph (c) has been renamed and now provides that the procedures 
of this part shall apply to section 508 complaints alleging failure to 
provide access to electronic and information technology and brought by 
members of the public, employees, or applicants.
    (d) Complaint Procedures.
    Paragraph (d) has been renamed and renumbered. It was previously 
paragraph (c). It explains the complaint procedures for section 504 
complaints brought by members of the public and section 508 complaints 
brought by members of the public, employees, or applicants. The actual 
complaint procedures are unchanged.
    (e) No retaliation.
    This paragraph was renumbered. It was previously paragraph (d). It 
has not been changed.

List of Subjects in 39 CFR Part 255

    Civil rights, Federal buildings and facilities, Individuals with 
disabilities.

0
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.
255.6 Processing of complaints.
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 in this part 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

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    (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, except 
for employment, 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, except for 
employment, an individual with a disability who meets the essential 
eligibility requirements for participation in, or receipt of benefits 
from, that program or activity; or
    (3) With respect to employment, an individual with a disability who 
can perform the essential functions of the job in question with or 
without reasonable accommodation.
    (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  Processing of complaints.

    (a) Section 504 complaints, employment. The Postal Service shall 
process complaints of employees and applicants alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1614 pursuant to section 501 of the Rehabilitation Act of 1973, as 
amended, 29 U.S.C. 791. In accordance with 29 CFR part 1614, the Postal 
Service has established procedures for processing complaints of alleged 
employment discrimination, based upon disability, in the agency's 
handbook, Equal Employment Opportunity Complaint Processing.
    (b) Section 504 complaints, members of the public. The procedures 
of this part shall apply to section 504 complaints alleging disability 
discrimination in any program or activity of the Postal Service and 
brought by members of the public.
    (c) Section 508 complaints, members of the public, employees, and 
applicants. The procedures of this part shall apply to section 508 
complaints alleging failure to provide access to electronic and 
information technology and brought by members of the public or by 
employees or applicants. Section 508 complaints shall be processed to 
provide the remedies required by section 508 of the Rehabilitation Act.
    (d) Complaint Procedures. Any individual with a disability who 
believes that he or she has been subjected to discrimination prohibited 
by this part or by the alleged failure of the agency to provide access 
to electronic and information technology may file a complaint by 
following the procedures described herein. A complainant shall first 
exhaust informal administrative procedures before filing a formal 
complaint.
    (1) Informal complaints relating to Postal Service programs or 
activities and to EIT. (i) A complainant initiates the informal process 
by informing the responsible postal manager 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

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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 (d)(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 following procedures. If the complainant files a 
formal complaint with the Vice President and Consumer Advocate, the 
complainant shall exhaust the formal complaint procedures before filing 
suit in any other forum.
    (i) Where to file. Formal complaints relating to programs or 
activities conducted by the Postal Service or to access of Postal 
Service EIT may be filed with the Vice President and Consumer Advocate, 
United States Postal Service, 475 L'Enfant Plaza, SW., Washington, DC 
20260.
    (ii) When to file. A formal complaint shall be filed within 30 days 
of the date the complainant receives the decision of the area/
functional vice president to deny relief. For purposes of determining 
when a formal complaint is timely filed under paragraph (d)(2)(ii) of 
this section, 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), that is filed after 
fulfilling the informal exhaustion procedures of Sec.  255.6(d)(1), and 
over which the agency has jurisdiction. The Vice President and Consumer 
Advocate shall notify the complainant of receipt and acceptance of the 
formal complaint within 15 days of the date the Vice President and 
Consumer Advocate received the formal complaint.
    (iv) Resolution of the formal complaint. Within 180 days of receipt 
and acceptance of a formal complaint over which the agency has 
jurisdiction, the Vice President and Consumer Advocate shall notify the 
complainant of the results of the investigation of the formal 
complaint. The notice shall be a written decision stating whether or 
not relief is being granted and the reasons for granting or denying 
relief. The notice shall state that it is the final decision of the 
Postal Service on the formal complaint.
    (e) 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 below. No one is required to 
use any special arrangement offered by the Postal Service, but an 
individual's refusal to make use of a particular special arrangement 
does not require the Postal Service to offer other special arrangements 
to that individual.
    (a) The Postal Operations Manual offers information on special 
arrangements for the following postal services:
    (1) Carrier delivery services and programs.
    (2) Postal retail services and programs.
    (i) Stamps by mail or phone.
    (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 
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 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

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    (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 either to repeal, modify, or amend any other postal 
regulation, to authorize any postal manager or employee to violate or 
exceed any regulatory limit, or to confer any budgetary authority on 
any postal official or employee outside normal budgetary procedures.

Neva Watson,
Attorney, Legislative.
[FR Doc. 04-17126 Filed 7-27-04; 8:45 am]
BILLING CODE 7710-12-P