[Federal Register Volume 81, Number 1 (Monday, January 4, 2016)]
[Proposed Rules]
[Pages 44-47]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32485]


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DEPARTMENT OF STATE

22 CFR Part 147

[Public Notice: 9390]
RIN 1400-AD87


Electronic and Information Technology

AGENCY: Department of State.

ACTION: Proposed rule.

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SUMMARY: This proposed rule implements Section 508 of the 
Rehabilitation Act (Section 508) for the Department of State. Section 
508 requires that Federal departments and agencies shall ensure 
accessibility by individuals with disabilities who are Federal 
employees, applicants for employment, or members of the public when 
developing, procuring, maintaining, or using electronic and information 
technology.

DATES: You may submit comments by March 4, 2016.

ADDRESSES: Interested parties may submit comments by one of the 
following methods:
     Email: [email protected] with the subject line, 
``Section 508 proposed rule.''
     Internet: At www.regulations.gov, search for this notice 
by searching for Docket No. DOS-2015-0072 or by the rule's RIN (1400-
AD87).
     By mail: Office of the Legal Adviser for Management, ATTN: 
Section 508 Rule, Room 4325, 2201 C Street NW., Washington, DC 20520.
    Comments received outside of the comment period may be considered 
if feasible, but consideration cannot be assured. Those submitting 
comments to www.regulations.gov should not include any personally 
identifying information or information for which a claim of 
confidentiality would be asserted; the Department of State will not 
remove or mask any information from comments that are posted at 
www.regulations.gov. Parties who wish to comment anonymously may do so 
by submitting their comments via www.regulations.gov, leaving the 
fields that would identify the commenter blank and including no 
identifying information in the comment itself. Comments submitted via 
www.regulations.gov are immediately available for public inspection.

FOR FURTHER INFORMATION CONTACT: Alice Kottmyer, Attorney-Adviser, 202-
647-2318, [email protected] (please use the subject line: ``Section 
508 proposed rule'').

SUPPLEMENTARY INFORMATION: The purpose of this proposed rule is to add 
a new part 147, which implements Section 508 of the Rehabilitation Act 
of 1973, as amended (29 U.S.C. 794d) (``Section 508''), as it applies 
to programs and activities conducted by the Department of State (``the 
Department''). The title of this proposed rule reflects that it applies 
to Electronic and Information Technology (EIT). Some authorities cited 
in this rulemaking might use the term ``Information and Communications 
Technology'' or ``ICT.'' For the purposes of this rulemaking, the 
Department considers ``EIT'' and ``ICT'' to be interchangeable.

Subpart A--General Provisions

    Proposed Sec. Sec.  147.1 and 147.2 provide that these proposed 
rules are intended to implement Section 508, consistent with that 
statute and the regulations promulgated by the Access Board, at 36 CFR 
part 1194 (``Part 1194''). This proposed rule applies to all 
development, procurement, maintenance, and use of electronic and 
information technology by the Department of State. Section 147.3 
provides the definitions of ``The Department,'' ``Electronic and 
Information Technology (EIT)'', ``Section 508,'' ``undue burden,'' 
``Section 508 complaint'', ``the Secretary,'' and otherwise adopts the 
definitions in 36 CFR 1194.4.
    Section 147.4 provides that the Department will ensure that its 
employees and applicants for employment are provided with adequate 
notice of the Department's obligations under Section 508, part 1194, 
and these rules.
    Sections 147.5 and 147.6 generally reiterate the requirements of 
Section 508 regarding the prohibition against discrimination, and the 
requirement for ensuring that EIT is accessible (in accordance with 
part 1194), unless an undue burden would be imposed on the Department--
in which case an alternative means of access must be provided.

Subpart B--Complaint Procedures

    Section 147.7 provides procedures for filing a complaint under 
Section 508. The procedures included therein are substantially the same 
procedures the Department has established in implementing Section 504 
of the Rehabilitation Act (22 CFR part 144). The relevant procedures 
are repeated in this rulemaking, for convenience. Any complaint must be 
filed with the Department's Office of Civil Rights, must be in writing, 
and submitted by fax, email, mail, or hand-delivery. The final, 
approved complaint form will be accessible and fillable and will be 
included for download on the following page: http://eforms.state.gov/searchform.aspx. Prior to approval by the Office of Information and 
Regulatory Affairs, a static version of the form (in PDF format) will 
be available upon request; see the FOR FURTHER INFORMATION CONTACT 
section above. The Department's analysis and notice pursuant to the 
Paperwork Reduction Act is included in the ``Regulatory Analysis,'' 
below. This form will be used for complaints not only under Section 
508, but under other statutes as well. This is reflected in the 
Paperwork Reduction Act analysis, below.
    An individual with a disability alleging a violation of Section 508 
must file a complaint not later than 180 days after the date the 
complainant knew, or should have known, of the alleged violation of 
Section 508. Once the Department receives the complaint, it must 
conduct an investigation and, within 180 days of receiving the 
complaint, shall notify the complainant of the results of the 
investigation in a letter containing findings of fact and conclusions 
of law; a description of a remedy for each violation found; and a 
notice of the right to appeal within 90 days of the complainant's 
receipt from the Department of the notice. The Department will notify 
the complainant

[[Page 45]]

of the results of the appeal within 60 days of the receipt of the 
appeal request.
    Section 147.8 provides that a decision from the Department on the 
merits of a complaint, or no notification in writing from the 
Department within 180 days of filing the complaint, will constitute 
exhaustion of the complainant's administrative remedies for purposes of 
5 U.S.C. 701, et seq. This provision does not yet have a counterpart in 
the Department's Section 504 implementing procedures; however, the 
Department believes that this provision is helpful to clarify when 
there is exhaustion of administrative remedies under the Administrative 
Procedure Act for purposes of a complaint under Section 508. The 
Department is reviewing the possibility of adding a parallel provision 
to 22 CFR part 144 in the near future.

Regulatory Analysis

Administrative Procedure Act

    The Department of State is publishing this rulemaking as a proposed 
rule, with 60-day provision for public comment.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by 5 U.S.C. 804 
for the purposes of Congressional review of agency rulemaking under the 
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 
801-808).

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $100 million in any year; and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rulemaking.

Regulatory Flexibility Act: Small Business

    The Department of State certifies that this rulemaking will not 
have an impact on a substantial number of small entities. A regulatory 
flexibility analysis is not required under the Regulatory Flexibility 
Act (5 U.S.C. 601, et seq.).

Executive Order 12866 and Executive Order 13563

    The Department of State has provided the rule to OMB for its 
review. The Department has also reviewed the proposed rule to ensure 
its consistency with the regulatory philosophy and principles set forth 
in Executive Order 12866, and finds that the benefits of the proposed 
rule (in providing mechanisms for individuals to submit complaints of 
discrimination) outweigh any costs to the public, which are minimal. 
The Department of State has also considered this rulemaking in light of 
Executive Order 13563, and affirms that this proposed regulation is 
consistent with the guidance therein.

Executive Order 12988

    The Department of State has reviewed this proposed rule in light of 
Executive Order 12988 to eliminate ambiguity, minimize litigation, 
establish clear legal standards, and reduce burden.

Executive Orders 12372 and 13132

    This proposed rule will not have substantial direct effect on the 
states, on the relationships between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this proposed rule does not have 
sufficient federalism implications to require consultations or warrant 
the preparation of a federalism summary impact statement. Executive 
Order 12372, regarding intergovernmental consultation on federal 
programs and activities, does not apply to this regulation.

Paperwork Reduction Act

    The information collection contained in this proposed rule is 
pursuant to the Paperwork Reduction Act, 44 U.S.C. Chapter 35 and, 
although not yet in use, has been assigned an OMB Control Number. As 
part of this rulemaking, the Department is seeking comment on the 
administrative burden associated with this collection of information. 
The Department has submitted an information collection request to OMB 
for review and approval under the PRA.
    This information collection will provide a way for employees and 
members of the public to submit a complaint of discrimination under 
Section 508 and other federal statutes relating to discrimination, as 
described below.
    (1) Type of Information Collection: New collection.
    (2) Title of the Form/Collection: Discrimination Complaint Form, 
OMB Control No. 1405-0220.
    (3) Agency form number: DS-4282.
    (4) Affected public: This information collection will be used by 
any federal employee or member of the public who wishes to submit a 
complaint of discrimination under Title VI of the Civil Rights Act of 
1964 (42 U.S.C. 2000d); or Sections 504 or 508 of the Rehabilitation 
Act of 1973 (29 U.S.C. 794 and 794d).
    (5) Change to information collected by the Department of State: 
This is a new information collection.
    (6) An estimate of the total number of respondents: The Department 
estimates a total of 10 respondents per year.
    (7) An estimate of the total annual public burden (in hours) 
associated with the collection: The average burden associated with this 
information collection is estimated to be 1 hour per respondent. 
Therefore, the Department estimates the total annual burden for this 
information collection to be 10 hours.
    (8) Submit comments to both OMB and the Department of State by the 
following methods:
Office of Management and Budget (OMB):
     Direct comments to the Department of State Desk Officer in 
the Office of Information and Regulatory Affairs at the Office of 
Management and Budget (OMB). You may submit comments by the following 
methods:
     Email: [email protected]. You must include the 
DS form number, information collection title, and the OMB control 
number in the subject line of your message.
     Fax: 202-395-5806. Attention: Desk Officer for Department 
of State.
Department of State:
    Date(s): The Department will accept comments from the public up to 
March 4, 2016.
     Web: Persons with access to the Internet may view this 
notice and provide comments by going to the regulations.gov Web site 
at: http://www.regulations.gov/index.cfm. Search for Docket No. DOS-
2015-0072 or for RIN number 1400-AD87.
     You must include the DS form number (DS-4282) or 
information collection title in any correspondence. Please note that 
comments submitted in response to this Notice are public record. Before 
including any detailed personal information, you should be aware that 
your comments as submitted, including your personal information, will 
be available for public review.

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     Email: [email protected]. You must include the DS form 
number (DS-4282), information collection title, and the OMB control 
number in any correspondence.
    (9) The Department seeks public comment on:
     Whether the collection of information is necessary for the 
proper performance of the functions of the Department, including 
whether the information will have practical utility;
     the accuracy of the Department's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
     the quality, utility, and clarity of the information to be 
collected; and
     how to minimize the burden of the collection of 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.
Abstract of Proposed Collection
    The form created by this information collection (DS-4282) will be 
used to present complaints of discrimination under Title VI of the 
Civil Rights Act of 1964; or Sections 504 or 508 of the Rehabilitation 
Act of 1973 (29 U.S.C. 794 and 794d).
Methodology
    The form will be downloaded from http://eforms.state.gov/searchform.aspx. After completion, the form may be submitted by email, 
mail, fax, or hand-delivery.

List of Subjects in 22 CFR Part 147

    Civil rights, Communications equipment, Computer technology, 
Government employees, Individuals with disabilities, Reporting and 
recordkeeping requirements, Telecommunications.

    For the reasons set forth in the preamble, 22 CFR part 147 is 
proposed to be added to subchapter O to read as follows:

PART 147--ELECTRONIC AND INFORMATION TECHNOLOGY

Subpart A--General Provisions
Sec.
147.1 Purpose.
147.2 Application.
147.3 Definitions.
147.4 Notice.
147.5 Discrimination prohibited.
147.6 Electronic and information technology requirements.
Subpart B--Complaint Procedures
147.7 Filing a Section 508 complaint.
147.8 Final agency action.

    Authority: 22 U.S.C. 2651a; 29 U.S.C. 794, 794d; 36 CFR part 
1194.

Subpart A--General provisions


Sec.  147.1  Purpose.

    The purpose of this part is to implement section 508 of the 
Rehabilitation Act of 1973, which requires that when Federal 
departments and agencies develop, procure, maintain, or use electronic 
and information technology, they shall ensure accessibility by 
individuals with disabilities who are Federal employees, applicants for 
employment, or members of the public.


Sec.  147.2  Application.

    This part applies to all development, procurement, maintenance, and 
use of electronic and information technology (EIT), as defined in Sec.  
147.3(b) and in 36 CFR 1194.4.


Sec.  147.3  Definitions.

    This part incorporates the definitions in 36 CFR 1194.4. In 
addition, as used in this part:
    Department means the United States Department of State and any of 
its passport agencies or other facilities.
    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 electronic and information technology 
includes, but is not limited to, telecommunications products (such as 
telephones), information kiosks and transaction machines, Web sites, 
multimedia, and office equipment such as copiers and fax machines. 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. For 
example, HVAC (heating, ventilation, and air conditioning) equipment 
such as thermostats or temperature control devices, and medical 
equipment where information technology is integral to its operation, 
are not information technology. As used herein, the Department intends 
that EIT mean the same as the term ``information and communications 
technology'' or ``ICT.''
    Secretary means the Secretary of State or his or her designee.
    Section 508 means section 508 of the Rehabilitation Act of 1973, 
codified at 29 U.S.C. 794d, Public Law 93-112, Title V, Section 508, as 
added Public Law 99-506, Title VI, Section 603(a), Oct. 21, 1986, 100 
Stat. 1830, and amended Public Law 100-630, Title II, Section 206(f), 
Nov. 7, 1988, 102 Stat. 3312; Public Law 102-569, Title V, Section 
509(a), Oct. 29, 1992, 106 Stat. 4430; Public Law 105-220, Title IV, 
Section 408(b), Aug. 7, 1998, 112 Stat. 1203.
    Undue burden has the same meaning as that contained in 36 CFR 
1194.4.


Sec.  147.4  Notice.

    (1) The Secretary shall ensure that employees and applicants for 
employment are provided with adequate notice of the requirements of 
Section 508, the Electronic and Information Technology Accessibility 
Standards (36 CFR part 1194), and this part, as they relate to the 
programs or activities conducted by the Department.
    (2) The Secretary shall ensure that the home page of the 
Department's public-facing Web site provides Department policy 
regarding accessibility of EIT in accordance with Section 508 and 36 
CFR part 1194, as well as an email address for the public to ask 
questions or express concerns.


Sec.  147.5  Discrimination prohibited.

    The Department must comply with EIT Standards and Guidelines when 
it develops, procures, maintains, or uses EIT. EIT must permit access 
to and use of information and data that is comparable to the access to 
and use of information and data by federal employees and members of the 
public without disabilities. The Department must also ensure that 
individuals with disabilities who are members of the public seeking 
information or services from the Department have access to and use of 
information and data that is comparable to that provided to the public 
without disabilities, unless providing comparable access would impose 
an undue burden on the Department.


Sec.  147.6  Electronic and information technology requirements.

    (a) Development, procurement, maintenance, or use of EIT. When 
developing, procuring, maintaining, or using EIT, the Department shall 
ensure, unless an undue burden would be imposed on the Department, that 
the EIT allows, regardless of the type of medium of the technology, 
that--
    (1) Individuals with disabilities who are Department employees have 
access to and use of information and data that is comparable to the 
access to and use of the information and data by

[[Page 47]]

Department employees who are not individuals with disabilities; and
    (2) Individuals with disabilities who are members of the public 
seeking information or services from the Department have access to and 
use of information and data that is comparable to the access to and use 
of the information and data by such members of the public who are not 
individuals with disabilities.
    (b) In meeting its obligations under paragraph (a) of this section, 
the Department shall comply with the Electronic and Information 
Technology Accessibility Standards (See 36 CFR part 1194).
    (c) Alternative means of access when undue burden is imposed. When 
development, procurement, maintenance, or use of EIT that meets the 
standards as provided in 36 CFR part 1194 would impose an undue burden, 
the Department shall provide individuals with disabilities covered by 
this section with the relevant information and data by an alternative 
means of access that allows the individual to use the information and 
data.
    (d) Procedures for determining undue burden. The Department 
procedures for finding that full compliance with 36 CFR part 1194 would 
impose an undue burden can be found at: http://www.state.gov/m/irm/impact/126338.htm.

Subpart B--Complaint Procedures


Sec.  147.7  Filing a Section 508 complaint.

    (a) An individual with a disability who alleges that Department EIT 
does not allow him or her to have access to and use of information and 
data that is comparable to access and use by individuals without 
disabilities, or that the alternative means of access provided by the 
Department does not allow the individual to use the information and 
data, may file a complaint with the Department's Office of Civil Rights 
(S/OCR).
    (b) Employees, applicants for employment, or members of the general 
public are encouraged to contact personnel in the Department office 
that uses or maintains a system that is believed not to be compliant 
with Section 508 or 36 CFR part 1194 to attempt to have their issues 
addressed. Nothing in this complaint process is intended to prevent 
Department personnel from addressing any alleged compliance issues when 
made aware of such requests directly or indirectly.
    (c) A Section 508 complaint must be filed not later than 180 
calendar days after the complainant knew, or should have known, of the 
alleged discrimination, unless the time for filing is extended by the 
Department. A Section 508 complaint must be submitted in writing by 
fax, email, mail, or hand delivery to the S/OCR office, using the Form 
DS-4282, Discrimination Complaint Form, which can be downloaded at: 
http://eforms.state.gov/searchform.aspx.
    (d) Once a Section 508 complaint has been received, S/OCR will 
conduct an investigation into the allegation(s) and render a decision 
as to whether a Section 508 violation has occurred. Within 180 days of 
the receipt of a complete complaint under this part, the Secretary 
shall notify the complainant of the results of the investigation in a 
letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (e) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt 
from the agency of the letter required by Sec.  147.7(d). The 
Department may extend this time for good cause.
    (f) Timely appeals shall be accepted and processed by the 
Department.
    (g) The Secretary shall notify the complainant of the results of 
the appeal within 60 days of the receipt of the appeal. If the 
Secretary determines that additional information is needed from the 
complainant, the Secretary shall have 60 days from the date of receipt 
of the additional information to make his or her determination on the 
appeal.
    (h) Individuals who submit a complaint must keep S/OCR updated at 
all times with current contact information, to include address, phone 
number, and working email address. Failure to do so may result in 
having the complaint closed prior to arriving at a decision on the 
merits of the complaint.
    (i) A Department employee who receives a Section 508 complaint or a 
communication that raises an issue that might reasonably be considered 
a Section 508 complaint, should forward such communication(s) to S/OCR.


Sec.  147.8  Final agency action.

    Either a decision by the Secretary on the merits of a complaint, or 
no notification in writing from the Secretary within 180 days of filing 
the complaint, will a constitute a final agency action and exhaustion 
of the complainant's administrative remedies for purposes of 5 U.S.C. 
701, et seq.

     Dated: December 17, 2015.
John M. Robinson,
Director, Office of Civil Rights, Department of State.
[FR Doc. 2015-32485 Filed 12-31-15; 8:45 am]
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