Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities Conducted by the Occupational Safety and Health Review Commission, 30064-30069 [2011-12404]

Agencies

• Occupational Safety and Health Review Commission

[Federal Register Volume 76, Number 100 (Tuesday, May 24, 2011)]
[Proposed Rules]
[Pages 30064-30069]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12404]


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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2205


Enforcement of Nondiscrimination on the Basis of Handicap in 
Programs or Activities Conducted by the Occupational Safety and Health 
Review Commission

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Occupational Safety and Health Review Commission 
(``OSHRC'') is proposing revisions to part 2205, which it promulgated 
to implement section 504 of the Rehabilitation Act of 1973, as amended. 
These proposed revisions account for statutory and regulatory changes, 
and incorporate procedures for filing complaints under section 508 of 
the Rehabilitation Act of 1973, as amended. OSHRC is also proposing 
various corrections and technical amendments to this part.

DATES: Comments must be received by OSHRC on or before June 23, 2011.

ADDRESSES: You may submit comments by any of the following methods:
     E-mail: regsdocket@oshrc.gov. Include ``PROPOSED 
RULEMAKING, PART 2205'' in the subject line of the message.
     Fax: (202) 606-5417.
     Mail: One Lafayette Centre, 1120 20th Street, NW., Ninth 
Floor, Washington, DC 20036-3457.
     Hand Delivery/Courier: same as mailing address.
    Instructions: All submissions must include your name, return 
address and e-mail address, if applicable. Please clearly label 
submissions as ``PROPOSED RULEMAKING, PART 2205.'' If you submit 
comments by e-mail, you will receive an automatic confirmation e-mail 
from the system indicating that we have received your submission. If, 
in response to your comment submitted via e-mail, you do not receive a 
confirmation e-mail within five working days, contact us directly at 
(202) 606-5410.

FOR FURTHER INFORMATION CONTACT: Ron Bailey, Attorney-Advisor, Office 
of the General Counsel, by telephone at (202) 606-5410, by e-mail at 
rbailey@oshrc.gov, or by mail at: 1120 20th Street, NW., Ninth Floor, 
Washington, DC 20036-3457.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 508 of the Rehabilitation Act requires federal agencies 
that develop, procure, maintain, or use electronic and information 
technology to ``ensure, unless undue burden would be imposed on the 
department or agency,'' that this technology allows (1) federal 
employees who are individuals with disabilities ``to have access to and 
use of information and data that is comparable to the access to and use 
of the information and data by Federal employees who are not 
individuals with disabilities,'' and (2) members of the public who are 
individuals with disabilities and are ``seeking information or services 
from a Federal department or agency to 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.'' 29 U.S.C. 794d(a)(1)(A). In the event 
that this requirement imposes an undue burden, federal agencies must 
provide the relevant information and data using an ``alternative 
means.'' 29 U.S.C. 794(a)(1)(B). An administrative complaint filed for 
an alleged violation of section 508 of the Rehabilitation Act must be 
filed with the agency ``alleged to be in noncompliance,'' and must be 
processed by the agency using ``the complaint procedures established to 
implement'' section 504 of the Rehabilitation Act. 29 U.S.C. 
794d(f)(2). Therefore, OSHRC is proposing to amend its procedures in 
part 2205, which effectuates section 504, to also incorporate the 
requirements set forth in section 508.
    Exercising its statutory authority under section 508 of the 
Rehabilitation Act, 29 U.S.C. 794(a)(2), the Architectural and 
Transportation Barriers Compliance Board (``Access Board'') has issued 
standards for electronic and information technology, 36 CFR part 1194. 
These standards define electronic and information technology for 
purposes of section 508 and provide the technical and functional 
performance criteria necessary to implement the accessibility 
requirements specified above. As detailed below, in amending part 2205, 
OSHRC relies on the definitions and requirements set forth in the 
Access Board's standards.
    Turning to the specific amendments, OSHRC proposes adding a 
sentence to Sec.  2205.101 (``Purpose'') indicating that part 2205 
effectuates section 508 and summarizing the purpose of that

[[Page 30065]]

section. OSHRC also proposes adding a clause to Sec.  2205.102 
(``Application'') indicating that part 2205 applies to the agency's 
``development, procurement, maintenance, and use of electronic and 
information technology,'' and a new section at Sec.  2205.135 
(``Electronic and information technology requirements'') that 
thoroughly explains the agency's responsibilities under section 508. 
The proposed additions are consistent with language used by the Access 
Board. 36 CFR 1194.1, .2. Additionally, in Sec.  2205.103 
(``Definitions''), OSHRC proposes (1) adding a definition describing 
the source material for section 508--a similar sentence already exists 
describing the source material for section 504; (2) adding the 
definitions of ``Electronic and Information technology'' and 
``Information technology'' set forth by the Access Board, 39 CFR 
1194.4; and (3) revising the definition of ``Complete complaint'' to 
indicate its coverage of violations alleged under section 508, as well 
as section 504. Further, OSHRC proposes adding language to Sec.  
2205.111 (``Notice'') to extend the notice requirements to section 508.
    OSHRC also proposes revising the procedures in Sec.  2205.170 
(``Compliance procedures'') to provide more detailed instructions for 
filing and processing complaints and appeals alleging violations of 
section 504, and to incorporate instructions for those who allege 
violations of section 508. As noted, section 508 directs agencies to 
use the same procedures for processing section 508 complaints as they 
use for section 504 complaints. The EEOC, however, recently explained 
in its own notice of rulemaking that ``[t]he part 1614 process is 
reserved for complaints alleging employment discrimination,'' and that 
an allegation under section 508 of ``discrimination in access to 
electronic and information technology * * * is outside the scope of 
part 1614.'' Therefore, the proposed revisions to Sec.  2205.170(a) and 
(b) make clear that part 1614 is not applicable to section 508 
complaints, but that OSHRC's procedures specifically set forth in its 
regulations are applicable to both section 504 and 508 complaints.
    In addition to amendments resulting from section 508, OSHRC is 
proposing the following deletions, and corrections and amendments to 
part 2205. As to the proposed deletions, several provisions include 
compliance deadlines that have already expired. Section 2205.110 
requires that OSHRC complete, by August 24, 1987, a self-evaluation of 
policies and practices that do not or may not meet the requirements of 
the regulation. It further requires that a description of areas 
examined, problems identified, and modifications made be kept on file 
for at least three years. Also, paragraph (c) of Sec.  2205.150 
requires OSHRC to ``comply with the obligations established under 
[paragraphs (a) and (b)] by October 21, 1986, except that where 
structural changes in facilities are undertaken, such changes shall be 
made by August 22, 1989, but in any event as expeditiously as 
possible''; and paragraph (d) of that provision requires OSHRC to 
``develop, by February 23, 1987, a transition plan setting forth the 
steps necessary to complete [structural changes to facilities]'' in the 
event that such changes are required. Because the latest of these given 
time frames has long passed, Sec.  2205.110 and paragraphs (c) and (d) 
of Sec.  2205.150 should be deleted.
    Also, the cross-references in several provisions are outdated. The 
fourth definition of ``qualified handicapped person,'' found at Sec.  
2205.103, cross-references 29 CFR 1613.702(f), and two other 
provisions--Sec. Sec.  2205.140 and .170(b)--cross-reference 29 CFR 
part 1613. Part 1613, however, was superseded by part 1614 in 1992. 
Federal Sector Equal Employment Opportunity, 57 FR 12634 (Apr. 10, 
1992) (final rule). The current version of Sec.  1614.203(b) cross-
references and adopts all definitions in part 1630, and the definition 
of ``qualified individual with a disability'' is at 29 CFR 1630.2(m). 
Therefore, the cross-reference in Sec.  2202.103 should be changed to 
29 CFR 1630.2(m), and the cross-reference to part 1613 in Sec. Sec.  
2205.140 and .170(b) should be changed to part 1614. Further, Sec.  
2205.151 cross-references 41 CFR 101-19.600 to 101-19.607, which 
previously set forth the standard for the Architectural Barriers Act, 
42 U.S.C. 4151-4157. In 2002, the regulatory provisions pertaining to 
the standard were re-designated as 41 CFR 102-76.60 to 102-76.95. Real 
Property Policies, 67 FR 76882 (Dec. 13, 2002) (final rule). Section 
2205.151 should therefore be amended to reflect this re-designation.
    Additionally, only the acronym for ``telecommunication devices for 
deaf persons'' should be used in Sec.  2205.160, as both the phrase and 
acronym already appear in Sec.  2205.103; the head of the agency should 
be referred to as the ``Chairman'' throughout the part, as this term is 
used in the OSH Act itself, 29 U.S.C. 661(a); and, in Sec.  2205.103, 
additional legislative history should be added to the definition of 
``Section 504.'' Finally, the 1992 amendments to the Rehabilitation 
Act, Public Law 102-569, 106 Stat. 4344, which replaced the term 
``handicap'' with the term ``disability,'' requires that OSHRC, in 
turn, similarly amend all such references in part 2205.

II. Statutory and Executive Order Reviews

    Executive Orders 12866 and 13132, and the Unfunded Mandates Reform 
Act of 1995: OSHRC is an independent regulatory agency and, as such, is 
not subject to the requirements of E.O. 12866, E.O. 13132, or the 
Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq.
    Regulatory Flexibility Act: OSHRC certifies under the Regulatory 
Flexibility Act, 5 U.S.C. 605(b), that these rules, if adopted, would 
not have a significant economic impact on a substantial number of small 
entities, because it applies exclusively to a federal agency and 
individuals accessing the services of a federal agency. For this 
reason, a regulatory flexibility analysis is not required.
    Paperwork Reduction Act of 1995: OSHRC has determined that the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply because 
these rules do not contain any information collection requirements that 
require the approval of OMB.
    Congressional Notification: This proposed rule is not a major rule 
under the Congressional Review Act, 5 U.S.C. 804(2).

List of Subjects in 29 CFR Part 2205

    Administrative practice and procedure, Civil rights, Equal 
employment opportunity, Federal buildings and facilities, Individuals 
with disabilities, Access to electronic and information technology.

    Signed at Washington, DC, on the 10th day of May 2011.
Thomasina V. Rogers,
Chairman.

    For the reasons set forth in the preamble, OSHRC proposes that 
Chapter XX, Part 2205 of Title 29, Code of Federal Regulations, is 
revised to read as follows:

PART 2205--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF 
DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE OCCUPATIONAL 
SAFETY AND HEALTH REVIEW COMMISSION AND IN ACCESSIBILITY OF 
COMMISSION ELECTRONIC AND INFORMATION TECHNOLOGY

Sec.
2205.101 Purpose.
2205.102 Application.
2205.103 Definitions.
2205.104-2205.10 [Reserved]
2205.111 Notice.

[[Page 30066]]

2205.112-2205.129 [Reserved]
2205.130 General prohibitions against discrimination.
2205.131-2205.134
2205.135 Electronic and information technology requirements
2205.136-2205.139 [Reserved]
2205.140 Employment.
2205.141-2205.148 [Reserved]
2205.149 Program accessibility: Discrimination prohibited.
2205.150 Program accessibility: Existing facilities.
2205.151 Program accessibility: New construction and alterations.
2205.152-2205.159 [Reserved]
2205.160 Communications.
2205.161-2205.169 [Reserved]
2205.170 Compliance procedures.
2205.171-2205.999 [Reserved]

    Authority: 29 U.S.C. 794; 29 U.S.C. 794d.


Sec.  2205.101  Purpose.

    This part effectuates 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. This part also effectuates section 508 of the Rehabilitation 
Act of 1973, as amended, with respect to the accessibility of 
electronic and information technology developed, procured, maintained, 
or used by the agency.


Sec.  2205.102  Application.

    This part applies to all programs or activities conducted by the 
agency and to its development, procurement, maintenance, and use of 
electronic and information technology.


Sec.  2205.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    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, telecommunications devices 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 (TDD's), 
interpreters, notetakers, written materials, and other similar services 
and devices.
    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 or section 508. 
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.
    Electronic and Information technology 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, World Wide 
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.
    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.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    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.
    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. As used in this definition, the phrase:
    (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. The term physical or 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 includes 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 subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    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. The term information technology includes computers, 
ancillary equipment, software, firmware and similar procedures, 
services (including support services), and related resources.
    Qualified individual with a disability means--
    (1) With respect to any agency program or activity under which a

[[Page 30067]]

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 individual with a disability is defined for purposes 
of employment in 29 CFR 1630.2(m), which is made applicable to this 
part by Sec.  2205.140.
    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.
    Section 508 means section 508 of the Rehabilitation Act of 1973, 
Pub. L. 93-112, Title V, section 508, as added Pub. L. 99-506, Title 
VI, section 603(a), Oct. 21, 1986, 100 Stat. 1830, and amended Pub. L. 
100-630, Title II, section 206(f), Nov. 7, 1988, 102 Stat. 3312; Pub. 
L. 102-569, Title V, section 509(a), Oct. 29, 1992, 106 Stat. 4430; 
Pub. L. 105-220, Title IV, section 408(b), Aug. 7, 1998, 112 Stat. 
1203.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.


Sec. Sec.  2205.104-2205.110  [Reserved]


Sec.  2205.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the Chairman finds 
necessary to apprise such persons of the protections against 
discrimination assured them by section 504 or the access to technology 
provided under section 508 and this regulation.


Sec. Sec.  2205.112-2205.129  [Reserved]


Sec.  2205.130  General prohibitions against discrimination.

    (a) No qualified individual with a disability shall, on the basis 
of 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; or
    (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) The agency may not deny a qualified individual with a 
disability the opportunity to participate in programs or activities 
that are not separate or different, despite the existence of 
permissibly separate or different programs or activities.
    (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 individuals without disabilities 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.  2205.131-2205.134  [Reserved]


Sec.  2205.135  Electronic and information technology requirements.

    (a) In accordance with section 508 and the standards published by 
the Architectural and Transportation Barriers Compliance Board at 36 
CFR part 1194, the agency shall ensure, absent an undue burden, that 
the electronic and information technology developed, procured, 
maintained, or used by the agency allows:
    (1) Individuals with disabilities who are agency employees or 
applicants to have access to and use of information

[[Page 30068]]

and data that is comparable to the access to and use of information and 
data by agency employees who are individuals without disabilities; and
    (2) Individuals with disabilities who are members of the public 
seeking information or services from the agency to have access to and 
use of information and data that is comparable to the access to and use 
of information and data by such members of the public who are not 
individuals with disabilities.
    (b) When development, procurement, maintenance, or use of 
electronic and information technology that meets the standards at 36 
CFR part 1194 would impose an undue burden, the agency shall provide 
individuals with disabilities covered by this section with the 
information and data involved by an alternative means of access that 
allows the individuals to use the information and data.


Sec. Sec.  2205.136-2205.139  [Reserved]


Sec.  2205.140  Employment.

    No qualified individual with a disability shall, on the basis of 
disability, be subjected 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.  2205.141-2205.148  [Reserved]


Sec.  2205.149  Program accessibility: discrimination prohibited.

    Except as otherwise provided in Sec.  2205.150, no qualified 
individual with a disability 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.  2205.150  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 (a) 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 this paragraph (a) would result in such 
alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the Chairman 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 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 
paragraph (a) of this section 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 paragraph (a)(2) or (3) 
of this section, 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.  2205.151  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 102-76.60 to 102-76.95, apply to buildings 
covered by this section.


Sec. Sec.  2205.152-2205.159  [Reserved]


Sec.  2205.160  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 applicants and beneficiaries 
by telephone, TDD's or equally effective telecommunication systems 
shall be used.
    (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.

[[Page 30069]]

    (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 this 
section would result in such alteration or burdens. The decision that 
compliance would result in such alteration or burdens must be made by 
the Chairman 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.  2205.161-2205.169  [Reserved]


Sec.  2205.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
disability in programs or activities conducted by the agency in 
violation of section 504. Paragraphs (c) through (j) of this section 
also apply to all complaints alleging a violation of the agency's 
responsibility to procure electronic and information technology under 
section 508, whether filed by members of the public or agency employees 
or applicants.
    (b) 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).
    (c)(1) Any person who believes that he or she has been subjected to 
discrimination prohibited by this part or that the agency's procurement 
of electronic and information technology has violated section 508, or 
an authorized representative of such person, may file a complaint with 
the Executive Director.
    (2) The Executive Director shall be responsible for coordinating 
implementation of this section. Complaints shall be sent to Executive 
Director, Occupational Safety and Health Review Commission, One 
Lafayette Centre, 1120 20th Street, NW., 9th Floor, Washington, DC 
20036-3457. Complaints shall be filed with the Executive Director 
within 180 days of the alleged act of discrimination. A complaint shall 
be deemed filed on the date it is postmarked, or, in the absence of a 
postmark, on the date it is received by the agency. The agency may 
extend this time period for good cause.
    (d)(1) 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 Executive Director shall notify the complainant and 
the respondent of receipt and acceptance of the complaint.
    (2) If the agency receives a complaint that is not complete, the 
Executive Director shall notify the complainant, within 30 days of 
receipt of the incomplete complaint, that additional information is 
needed. If the complainant fails to complete the complaint within 30 
days of receipt of this notice, the Executive Director shall dismiss 
the complaint without prejudice and shall so inform the complainant.
    (3) 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 government 
entity.
    (e) 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), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by individuals with disabilities.
    (f) Within 180 days of the receipt of a complete complaint for 
which it has jurisdiction, the agency 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.
    (g) Appeals of the findings of fact and conclusions of law or 
remedies must be filed with the Chairman by the complainant within 90 
days of receipt from the agency of the letter required by paragraph (f) 
of this section. The agency may extend this time for good cause. 
Appeals shall be sent to the Chairman, Occupational Safety and Health 
Review Commission, One Lafayette Centre, 1120 20th Street, NW., 9th 
Floor, Washington, DC 20036-3457. An appeal shall be deemed filed on 
the date it is postmarked, or, in the absence of a postmark, on the 
date it is received by the agency. It should be clearly marked ``Appeal 
of Section 504 decision'' or ``Appeal of Section 508 decision'' and 
should contain specific objections explaining why the complainant 
believes the initial decision was factually or legally wrong. Attached 
to the appeal letter should be a copy of the initial decision being 
appealed.
    (h) Timely appeals shall be accepted and decided by the Chairman. 
The Chairman shall notify the complainant of the results of the appeal 
within 60 days of the receipt of the request. If the Chairman 
determines that additional information is needed from the complainant, 
he or she shall have 60 days from the date of receipt of the additional 
information to make his or her determination on the appeal.
    (i) The time limits cited in paragraphs (f) and (h) of this section 
may be extended with the permission of the Assistant Attorney General.
    (j) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies or may contract with non-
Federal entities to conduct such investigations, except that the 
authority for making the final determination may not be delegated.


Sec. Sec.  2205.171-2205.999  [Reserved]

[FR Doc. 2011-12404 Filed 5-23-11; 8:45 am]
BILLING CODE 7600-01-P