[Federal Register Volume 70, Number 88 (Monday, May 9, 2005)]
[Rules and Regulations]
[Pages 24293-24297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9209]



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  Federal Register / Vol. 70, No. 88 / Monday, May 9, 2005 / Rules and 
Regulations  

[[Page 24293]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1207


Interim Regulatory Changes Regarding Enforcement of 
Nondiscrimination on the Basis of Disability in Programs or Activities

AGENCY: Merit Systems Protection Board.

ACTION: Interim rule with request for comments.

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

SUMMARY: The Merit Systems Protection Board (MSPB or ``the Board'') is 
revising its regulations which were promulgated to implement Section 
504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794. These 
revisions are necessary to reconcile the Board's regulations with the 
current statute and to clarify the procedures for processing those 
complaints filed against the Board which allege discrimination on the 
basis of disability during the Board's adjudication of a related 
employee appeal.

DATES: This rule is effective May 9, 2005. Written comments should be 
submitted on or before July 8, 2005.

ADDRESSES: Send or deliver comments to the Office of Clerk of the 
Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., 
Washington, DC 20419; fax: (202) 653-7130; or e-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Bentley Roberts, Clerk of the Board, 
Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 
20419; (202) 653-7200; fax: (202) 653-7130; or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The Board's regulations to implement Section 
504 of the Rehabilitation Act were initially promulgated in 1988 and 
amended in 2000. These revisions are necessary to reconcile the Board's 
regulations with the amendments that have been made to the statute 
including substitution of the term ``disability'' for the term 
``handicap'' used in the existing regulations.
    Additional changes include the addition of a definition for the 
term ``days,'' in connection with determining the deadline for filing a 
complaint, the deletion of outdated provisions (such as references to 
the regulations issued by the Equal Employment Opportunity Commission 
found at 29 CFR part 1613 and the requirement to conduct a self 
evaluation), and revision of the compliance procedures.
    The latter revision modifies the procedures for processing those 
complaints filed against the Board which allege discrimination on the 
basis of disability during the Board's adjudication of a related 
employee appeal. The current regulations create a tension between the 
Board's obligations to adjudicate employee appeals in an effective 
manner under the Civil Service Reform Act and its duty under Section 
504 of the Rehabilitation Act of 1973, as amended, to ensure that its 
programs and activities are operated in a manner that does not result 
in discrimination against persons with disabilities. For example, 5 
U.S.C. 7701(b)(1) and (e)(1) require that a decision on a petition for 
review be rendered by a majority of the Board members. However, under 
the Board's current Section 504 regulations, the Chairman is given the 
sole authority to issue a decision in disability discrimination 
complaints filed under that statute. As a result, when a complaint 
alleging disability discrimination is filed during or regarding the 
adjudication of a related employee appeal, it is possible that the 
Board's decision in the appeal could be overruled by a subsequent 
decision of the Chairman in the discrimination matter. Such a result 
could constitute an improper collateral attack on the Board's 
adjudicatory authority.
    The revised regulations seek to ameliorate this potential conflict 
by requiring appellants and other parties to adjudication before the 
Board to file claims of alleged disability discrimination within 10 
days of the alleged act of discrimination or within 10 days from the 
date that the person knew or reasonably should have known of the 
alleged discrimination. The complaint is to be filed with the 
administrative judge responsible for adjudicating the initial appeal.
    The revised regulations further provide that the discrimination 
complaint will be consolidated with the employee's initial appeal and 
the administrative judge will be responsible for rendering a decision 
on the discrimination complaint either as an interim order or as part 
of the initial decision. A party may seek reconsideration of the 
administrative judge's ruling on the discrimination matter.
    If an initial decision, recommended decision or recommendation has 
been issued by the time the party learns of the alleged discrimination, 
the party may raise the allegation in a petition for review, cross 
petition for review, or response to a petition or cross petition, as 
appropriate. The Board will decide the merits of any discrimination 
claim raised at this stage of the adjudicatory process.
    While the Board is mindful of its obligations under Section 504 of 
the Rehabilitation Act of 1973, the Board is also concerned with the 
efficacy of its adjudicatory process. The Board believes that the 
procedures herein further the goal of ensuring finality in its 
decisions while providing a fair avenue of redress for allegations of 
disability discrimination.

List of Subjects

5 CFR Part 1207

    Administrative personnel, Enforcement of nondiscrimination on the 
basis of disability in programs or activities conducted by the Merit 
Systems Protection Board.


0
Accordingly, the Board amends 5 CFR part 1207 as follows:

PART 1207--[REVISED]

0
1. Revise 5 CFR part 1207 as follows:

PART 1207--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF 
DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE MERIT SYSTEMS 
PROTECTION BOARD

Sec.
1207.101 Purpose.
1207.102 Application.
1207.103 Definitions.
1207.104-1207.109 [Reserved]
1207.110 Notice.

[[Page 24294]]

1207.111-1207.119 [Reserved]
1207.120 General prohibitions against discrimination.
1207.121-1207.129 [Reserved]
1207.130 Employment.
1207.131-1207.139 [Reserved]
1207.140 Program accessibility: Discrimination prohibited.
1207.141-1207.149 [Reserved]
1207.150 Program accessibility: Existing facilities.
1207.151 Program accessibility: New construction and alterations.
1207.152-1207.159 [Reserved]
1207.160 Communications.
1207.161-1207.169 [Reserved]
1207.170 Compliance procedures.
1207.171-1207.199 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 53 FR 25881 and 25885, July 8, 1988, unless otherwise 
noted.


Sec.  1207.101  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of disability in 
programs or activities conducted by Executive agencies or the United 
States Postal Service.


Sec.  1207.102  Application.

    This part applies to all programs or activities conducted by the 
agency, except for programs or activities conducted outside the United 
States that do not involve individuals with disabilities in the United 
States.


Sec.  1207.103  Definitions.

    (a) Assistant Attorney General means the Assistant Attorney 
General, Civil Rights Division, United States Department of Justice.
    (b) 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, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary 
aids useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDDs), interpreters, notetakers, written 
materials, and other similar services and devices.
    (c) Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties 
shall describe or identify (by name, if possible) the alleged victims 
of discrimination.
    (d) Days means calendar days, unless otherwise stated.
    (e) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    (f) Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    (g) Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    (h) 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. The following phrases used in 
this definition are further defined as follows:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more of the 
following body systems: Neurological; musculoskeletal; special sense 
organs; respiratory, including speech organs; cardiovascular; 
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and 
endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (iii) Also, physical and mental impairment includes, but is not 
limited to, such diseases and conditions as orthopedic, visual, speech, 
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, 
multiple sclerosis, cancer, heart disease, diabetes, mental 
retardation, emotional illness, and drug addiction and alcoholism.
    (2) Major life activities include functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others 
toward such impairment; or
    (iii) Has none of the impairments defined in paragraph (i) of this 
definition but is treated by the agency as having such an impairment.
    (i) Qualified individual with a disability means--
    (1) With respect to any agency 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;
    (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; and
    (3) Qualified disabled person as that term is defined for purposes 
of employment in 29 CFR 1614.203, which is made applicable to this part 
by Sec.  1207.130.
    (j) Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), 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 Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 
1810). As used in this part, section 504 applies only to programs or 
activities conducted by Executive agencies and not to federally 
assisted programs.


Sec. Sec.  1207.104-1207.109  [Reserved]


Sec.  1207.110  Notice.

    The agency shall make available to employees, applicants, 
participants, and

[[Page 24295]]

other interested parties such information regarding the provisions of 
this part and its applicability to the programs or activities conducted 
by the agency, and make such information available to them in such 
manner as the head of the agency finds necessary to apprise such 
persons of the protections against discrimination assured them by 
section 504 and this part.


Sec. Sec.  1207.111-1207.119  [Reserved]


Sec.  1207.120  General prohibitions against discrimination.

    (a) No qualified individual with a disability shall, on the basis 
of such disability, be excluded from participation in, be denied the 
benefits of, or otherwise be subjected to discrimination under any 
program or activity conducted by the agency.
    (b) (1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of disability--
    (i) Deny a qualified individual with a disability the opportunity 
to participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than is provided to others unless such action is necessary 
to provide qualified individuals with disabilities with aid, benefits, 
or services that are as effective as those provided to others;
    (v) Deny a qualified individual with a disability the opportunity 
to participate as a member of planning or advisory boards;
    (vi) Otherwise limit a qualified individual with a disability in 
the enjoyment of any right, privilege, advantage, or opportunity 
enjoyed by others receiving the aid, benefit, or service.
    (2) A qualified individual with a disability may not be excluded 
from participation in any of the agency's programs or activities, even 
though permissibly separate or different programs or activities exist.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with disabilities to 
discrimination on the basis of disability; or
    (ii) Defeat or substantially impair accomplishment of the 
objectives of a program or activity with respect to individuals with 
disabilities.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with disabilities from, deny them the 
benefits of, or otherwise subject them to discrimination under any 
program or activity conducted by the agency, or;
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
disabilities.
    (5) The agency, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with disabilities 
to discrimination on the basis of disability.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may the 
agency establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
disabilities to discrimination on the basis of disability. However, the 
programs or activities of entities that are licensed or certified by 
the agency are not, themselves, covered by this part.
    (c) The exclusion of nondisabled persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with disabilities or the exclusion of a specific class of individuals 
with disabilities from a program limited by Federal statute or 
Executive order to a different class of individuals with disabilities 
is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with disabilities.


Sec. Sec.  1207.121-1207.129  [Reserved]


Sec.  1207.130  Employment.

    No qualified individual with a disability shall, on the basis of 
such disability, be subject to discrimination in employment under any 
program or activity conducted by the agency. The definitions, 
requirements, and procedures of section 501 of the Rehabilitation Act 
of 1973 (29 U.S.C. 791), as established by the Equal Employment 
Opportunity Commission in 29 CFR part 1614, shall apply to employment 
in federally conducted programs or activities.


Sec. Sec.  1207.131-1207.139  [Reserved]


Sec.  1207.140  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec.  1207.150, no qualified 
individual with disabilities shall, because the agency's facilities are 
inaccessible to or unusable by individuals with disabilities, be denied 
the benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.


Sec. Sec.  1207.141-1207.149  [Reserved]


Sec.  1207.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with disabilities. This 
paragraph does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with disabilities;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden 
of proving that compliance with Sec.  1207.150(a) would result in such 
alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the agency head or his or 
her designee after considering all agency resources available for use 
in the funding and operation of the conducted program or activity, and 
must be accompanied by a written statement of the reasons for reaching 
that conclusion. If an action would result in such an alteration or 
such burdens, the agency shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that individuals with disabilities receive the

[[Page 24296]]

benefits and services of the program or activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by individuals with disabilities. The agency 
is not required to make structural changes in existing facilities where 
other methods are effective in achieving compliance with this section. 
The agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give 
priority to those methods that offer programs and activities to 
qualified individuals with disabilities in the most integrated setting 
appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec.  1207.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to individuals 
with disabilities. In cases where a physical alteration to an historic 
property is not required because of Sec.  1207.150(a)(2) or (3), 
alternative methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with disabilities into 
or through portions of historic properties that cannot otherwise be 
made accessible; or
    (iii) Adopting other innovative methods.


Sec.  1207.151  Program accessibility: New construction and 
alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with disabilities. The definitions, requirements, and 
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as 
established in 41 CFR 101-19.600 to 101-19.607, apply to buildings 
covered by this section.


Sec. Sec.  1207.152-1207.159  [Reserved]


Sec.  1207.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency 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, a program or 
activity conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with a disability.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with parties by telephone, 
telecommunication devices for deaf persons or equally effective 
telecommunication systems shall be used to communicate with persons 
with impaired hearing.
    (b) The agency 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, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, 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.
    (d) This section does not require the agency to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and 
administrative burdens. In those circumstances where agency personnel 
believe that the proposed action would fundamentally alter the program 
or activity or would result in undue financial and administrative 
burdens, the agency has the burden of proving that compliance with 
Sec.  1207.160 would result in such alteration or burdens. The decision 
that compliance would result in such alteration or burdens must be made 
by the agency head or his or her designee after considering all agency 
resources available for use in the funding and operation of the 
conducted program or activity and must be accompanied by a written 
statement of the reasons for reaching that conclusion. If an action 
required to comply with this section would result in such an alteration 
or such burdens, the agency shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that, to the maximum extent possible, individuals with 
disabilities receive the benefits and services of the program or 
activity.


Sec. Sec.  1207.161-1207.169  [Reserved]


Sec.  1207.170  Compliance procedures.

    (a) The agency shall process complaints 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 (29 
U.S.C. 791).
    (b) Allegations of discrimination in the adjudication of a Board 
case.
    (1) When a party to a case pending before any of the Board's judges 
believes he or she has been subjected to discrimination on the basis of 
disability in the adjudication of the case, the party may raise the 
allegation in a pleading filed with the judge and served on all other 
parties in accordance with 5 CFR 1201.26(b)(2).
    (2) An allegation of discrimination in the adjudication of a Board 
case must be raised within 10 days of the alleged act of discrimination 
or within 10 days from the date the complainant should reasonably have 
known of the alleged discrimination. If the complainant does not submit 
a complaint within that time period, it will be dismissed as untimely 
filed unless a good reason for the delay is shown.
    (3) The judge to whom the case is assigned shall decide the merits 
of any timely allegation that is raised at this stage of adjudication, 
and shall make findings and conclusions regarding the allegation either 
in an interim order or in the initial decision, recommended decision, 
or recommendation. Any request for reconsideration of the 
administrative judge's decision on the disability discrimination claim 
must be filed in accordance with the requirements of 5 CFR 1201.114 and 
1201.115.
    (4) If the judge to whom the case was assigned has issued the 
initial decision, recommended decision, or recommendation by the time 
the party learns of the alleged discrimination, the party may raise the 
allegation in a petition for review, cross petition for

[[Page 24297]]

review, or response to the petition or cross petition.
    (5) The Board shall decide the merits of any timely allegation that 
is raised at this stage of adjudication in a final decision.
    (c) All complaints of discrimination on the basis of disability in 
programs and activities conducted by the agency, except for those 
described in paragraphs (a) and (b) of this section, shall be filed 
under the procedures described in this paragraph.
    (1) Who may file. Any person who believes that he or she has been 
subjected to discrimination prohibited by this part, or authorized 
representative of such person, may file a complaint. Any person who 
believes that any specific class of persons has been subjected to 
discrimination prohibited by this part and who is a member of that 
class or the authorized representative of a member of that class may 
file a complaint. A charge on behalf of a person or member of a class 
of persons claiming to be aggrieved may be made by any person, agency 
or organization.
    (2) Where and when to file. Complaints shall be filed with the 
Director, Office of Equal Employment Opportunity (EEO Director), Merit 
Systems Protection Board, 1615 M Street, NW., Washington DC 20419, or 
e-mailed to [email protected], within thirty-five (35) calendar 
days of the alleged act of discrimination. A complaint filed by 
personal delivery is considered filed on the date it is received by the 
EEO Director. The date of filing by facsimile or e-mail is the date the 
facsimile or e-mail is sent. The date of filing by mail is determined 
by the postmark date; if no legible postmark date appears on the 
mailing, the submission is presumed to have been mailed five days 
(excluding days on which the Board is closed for business) before its 
receipt. The date of filing by commercial overnight delivery is the 
date the document was delivered to the commercial overnight delivery 
service. The agency shall extend the time period for filing a complaint 
upon a showing of good cause. For example, the agency shall extend this 
time limit if a complainant shows that he or she was prevented by 
circumstances beyond his or her control from submitting the matter 
within the time limits.
    (3) Acceptance of complaint. (i) The agency shall accept a complete 
complaint that is filed in accordance with paragraph (c) of this 
section and over which it has jurisdiction. The EEO Director shall 
notify the complainant of receipt and acceptance of the complaint.
    (ii) If the EEO Director receives a complaint that is not complete, 
he or she shall notify the complainant that additional information is 
needed. If the complainant fails to complete the complaint and return 
it to the EEO Director within 15 days of his or her receipt of the 
request for additional information, the EEO Director shall dismiss the 
complaint with prejudice and shall so inform the complainant.
    (4) Within 60 days of the receipt of a complete complaint for which 
it has jurisdiction, the EEO Director shall notify the complainant of 
the results of the investigation in an initial decision containing--
    (i) Findings of fact and conclusions of law;
    (ii) When applicable, a description of a remedy for each violation 
found; and
    (iii) A notice of the right to appeal.
    (5) Any appeal of the EEO Director's initial decision must be filed 
with the Chairman of the Board, Merit Systems Protection Board, 1615 M 
Street, NW., Washington, DC 20419 by the complainant within 35 days of 
the date the EEO Director issues the decision required by Sec.  
1207.170(c)(4). The agency may extend this time for good cause when a 
complainant shows that circumstances beyond his or her control 
prevented the filing of an appeal within the prescribed time limit. An 
appeal filed by personal delivery is considered filed on the date it is 
received by the Chairman. The date of filing by facsimile is the date 
of the facsimile. The date of filing by mail is determined by the 
postmark date; if no legible postmark date appears on the mailing, the 
submission is presumed to have been mailed five days (excluding days on 
which the Board is closed for business) before its receipt. The date of 
filing by commercial overnight delivery is the date the document was 
delivered to the commercial overnight delivery service. The appeal 
should be clearly marked ``Appeal of Section 504 Decision'' and must 
contain specific objections explaining why the person believes the 
initial decision was factually or legally wrong. A copy of the initial 
decision being appealed should be attached to the appeal letter.
    (6) A timely appeal shall be decided by the Chairman unless the 
Chairman determines, in his or her discretion, that the appeal raises 
policy issues and that the nature of those policy issues warrants a 
decision by the full Board. The full Board shall then decide such 
appeals.
    (7) The Chairman shall notify the complainant of the results of the 
appeal within sixty (60) days of the receipt of the request. If the 
Chairman determines that he or she needs additional information from 
the complainant, he or she shall have sixty (60) days from the date he 
or she receives the additional information to make his or her 
determination on the appeal.
    (8) The time limit stated in paragraph (c)(2) may be extended by 
the EEO Director to a period of up to 180 days, and may be extended 
further with the permission of the Assistant Attorney General. The time 
limit stated in paragraph (c)(5) may be extended by the Chairman to a 
period of up to 180 days, and may be extended further with the 
permission of the Assistant Attorney General.
    (9) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.
    (d) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with disabilities.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate entity.


Sec. Sec.  1207.171-1207.999  [Reserved]

Bentley M. Roberts, Jr.,
Clerk of the Board.
[FR Doc. 05-9209 Filed 5-6-05; 8:45 am]
BILLING CODE 7400-01-P