Electronic and Information Technology

AGENCY:

Department of State.

ACTION:

Final rule.

SUMMARY:

This rule implements Section 508 of the Rehabilitation Act (Section 508) for the Department of State. Section 508 requires that when Federal departments and agencies develop, procure, maintain, or use electronic and information technology, they shall ensure that the electronic and information technology is accessible to individuals with disabilities who are Federal employees, applicants for employment, or members of the public.

DATES:

This rule is effective June 23, 2016.

FOR FURTHER INFORMATION CONTACT:

Alice Kottmyer, Attorney-Adviser, 202-647-2318, kottmyeram@state.gov.

SUPPLEMENTARY INFORMATION:

This rule adds 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”).

Subpart A—General Provisions

Sections 147.1 and 147.2 provide that these 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 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,” “Section 508”, “Section 508 complaint”, and “the Secretary”, and adopts the definitions in 36 CFR 1194.4.

Section 147.4 provides that the Department will ensure that its employees, applicants for employment, and members of the public 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 of 1973 (22 CFR part 144). The relevant procedures are repeated in this rulemaking, for convenience. A Section 508 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, designated DS-4282, is accessible and fillable and is available on the following page: https://eforms.state.gov/searchform.aspx. The Department's analysis and notice pursuant to the Paperwork Reduction Act are included in the “Regulatory Analysis,” below. The DS-4282 will be used for complaints not only under Section 508, but under Section 504 and Title VI of the Civil Rights Act. 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 of the notice from the Department. The Department will notify the complainant 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 is considering adding a parallel provision to 22 CFR part 144 in the near future.

The Department published a proposed rule on January 4, 2016. See 81 FR 44. The Department received one comment in response to the Paperwork Reduction Act notice, expressing support for the information collection, and received no comments on the proposed rule.

Regulatory Analysis

Administrative Procedure Act

The Department of State published this rulemaking as a proposed rule, with 60-day provision for public comment. The final rule will be in effect 30 days after publication.

Small Business Regulatory Enforcement Fairness Act of 1996

This 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 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 this final rule to the Office of Management and Budget (OMB) for its review. The Department has also reviewed the rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866, and finds that the benefits of the 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 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 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 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 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. The Department submitted an information collection request to OMB for the review and approval of the Discrimination Complaint Form, DS-4282, 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.

30-Day Notice of Proposed Information Collection: DS-4282, Discrimination Complaint Form

The Department of State has submitted the information collection described below to OMB for approval. Direct request for additional information regarding the collection listed herein, including requests for copies of the proposed collection instrument and supporting documents, to the Office of the Legal Adviser (L/M), ATTN: Section 508 Final Rule, Suite 4325, U.S. Department of State, 2200 C Street NW., Washington DC 20520; email kottmyeram@state.gov.

• Title of the Collection: Complaint of Discrimination Under Section 504, Section 508 or Title VI.
• OMB Control No.: 1405-0220.
• Type of Request: New collection.
• Originating Office: Office of Civil Rights, U.S. Department of State.
• Form Number: Form DS-4282, Discrimination Complaint Form.
• Respondents: 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).
• Estimated number of respondents and responses: The Department estimates a total of 10 respondents, with one response per respondent, per year.
• 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.
• Frequency: On occasion.
• Obligation to Respond: Voluntary.

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 https://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

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

PART 147—ELECTRONIC AND INFORMATION TECHNOLOGY

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

Subpart A—General Provisions

Subpart B—Complaint Procedures