Page images

working days from the date on which the individual requests such review, complete such review and make final determination, unless, for good cause shown, the Executive Director extends such thirty-day period. If, after his or her review, the Executive Director also refuses to correct or to amend the record in accordance with the request, the Board shall permit the individual or authorized representative to file with the Executive Director a concise statement setting forth the reasons for his or her disagreement with the refusal of the Executive Director and shall notify the individual or authorized representative that he or she may seek judicial review of the Executive Director's determination under 5 U.S.C. 552a(g)(1)(A).

(2) The name and address of the person or agency to whom the disclosure is made.

(b) This accounting shall be retained for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made;

(c) The Board shall make this accounting available to the individual named in the record at his or her request, except for disclosures made under section (b)(7) of the Privacy Act of 1974 (5 U.S.C. 552a).

(d) The Board shall inform any person or other agency to whom disclosure has been made pursuant to $1121.10 about any correction or notation of dispute made by the Board.

8 1121.12 Fees.

If an individual or authorized representative requests copies of his or her record, he or she shall be charged ten cents per page, excluding the cost of any search for review of the record, in advance of receipt of the pages.



Subpart A-General Information

$ 1121.9 Notification of dispute.

In any disclosure pursuant to $1121.10 containing information about which the individual has previously filed a statement disagreement under $ 1121.8, the Board shall clearly note any portion of the record which is disputed and provide copies of the statement and, if the Executive Director deems it appropriate, copies of a concise statement of the reasons of the Executive Director for not making the amendments requested. $ 1121.10 Disclosure of record to a per

son other than the individual to

whom the record pertains. The Board will not disclose a record to any individual or agency other than the individual to whom the record pertains, except to an authorized representative, unless the disclosure has been listed as a “routine use" in the Board's notices of its systems of records, or falls within one of the special disclosure situations listed in the Privacy Act of 1974 (5 U.S.C. 552a(b)).

Sec. 1150.1 Purpose. 1150.2 Applicability: Buildings and facilities

subject to guidelines and standards. 1150.3 Policy of amicable resolution. 1150.4 Definitions. 1150.5 Scope and interpretation of rules. 1150.6 Suspension of rules.

Subpart B-Parties, Complainants,


1150.11 Parties. 1150.12 Complainants. 1150.13 Participation on petition. 1150.14 Appearance.

Subpart C-Form, Execution, Service and

Filing of Documents for Proceedings on Citations

$ 1121.11 Accounting of disclosures.

(a) The Board shall, except for disclosure made under sections (b)(1) and (b)(2) of the Privacy Act of 1974 (5 U.S.C. 552a) keep an accurate accounting of

(1) The date, nature and purpose of each disclosure of a record to any person or another agency made pursuant to $1121.10; and

1150.21 Form of documents to be filed. 1150.22 Signature of documents. 1150.23 Filing and service. 1150.24 [Reserved] 1150.25 Date of service. 1150.26 Certificate of service.

SOURCE: 45 FR 78474, Nov. 25, 1980, unless otherwise noted.

Subpart D-Time 1150.31 Computation. 1150.32 Extension of time or postponement. Subpart E-Proceedings Prior to Hearings,

Pleadings and Motions

Subpart A-General Information

1150.41 Informal resolution. 1150.42 Citations. 1150.43 Answers. 1150.44 Amendments. 1150.45 Request for hearing. 1150.46 Motions. 1150.47 Disposition of motions and petitions. 1150.48 PER: Citation, answer, amendment.

$ 1150.1 Purpose.

Purpose. The purpose of the regulations in this part is to implement section 502(b)(1) of the Rehabilitation Act of 1973, Pub. L. 93–112, 29 U.S.C. 792, as amended by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. 95-602, section 118, 92 Stat. 2979, by establishing rules of procedure for public hearings which ensure compliance with standards issued under the Architectural Barriers Act of 1968, Pub. L. 90 480, as amended, 42 U.S.C. 4151 et seq. (including standards of the U.S. Postal Service).

Subpart - Responsibilities and Duties of

Judge 1150.51 Who presides. 1150.52 Authority of judge. 1150.53 Disqualification of judge. Subpart G-Prehearing Conferences and

Discovery 1150.61 Prehearing conference. 1150.62 Exhibits. 1150.63 Discovery.

Subpart H-Hearing Procedures

1150.71 Briefs. 1150.72 Purpose of hearing. 1150.73 Testimony. 1150.74 Exclusion of evidence. 1150.75 Objections. 1150.76 Exceptions. 1150.77 Official notice. 1150.78 Public documents. 1150.79 Offer of proof. 1150.80 Affidavits. 1150.81 Consolidated or joint hearing. 1150.82 PER proceedings.

Subpart -The Record

$1150.2 Applicability: Buildings and

facilities subject to guidelines and

standards. (a) Definitions. As used in this section, the term:

Constructed or altered on behalf of the United States means acquired by the United States through lease-purchase arrangement, constructed or altered for purchase by the United States, or constructed or altered for the use of the United States.

Primarily for use by able-bodied military personnel means expected to be occupied, used, or visited principally by military service personnel. Examples of buildings so intended are barracks, officers' quarters, and closed messes.

Privately owned residential structure means a single or multi-family dwelling not owned by a unit or subunit of Federal, state, or local government.

(b) Buildings and facilities covered. Except as provided in paragraph (c) of this section, the standards issued under the Architectural Barriers Act of 1968, Pub. L. 90 480, as amended, 42 U.S.C. 4151 et seq. (including standards of the United States Postal Service) apply to any building or facility

(1) The intended use for which either

(i) Will require that such building or facility be accessible to the public, or

(ii) May result in employment or residence therein of physically handicapped persons; and

1150.91 Record for decision. 1150.92 Official transcript.

Subpart —Posthearing Procedures;


1150.101 Posthearing briefs; proposed find

ings. 1150.102 Decision. 1150.103 PER: Posthearing briefs, decision. 1150.104 Judicial review. 1150.105 Court enforcement.

Subpart K-Miscellaneous Provisions

1150.111 Ex parte communications. 1150.112 Post-order proceedings. 1150.113 Amicable resolution. 1150.114 Effect of partial invalidity.

AUTHORITY: 29 U.S.C. 792, as amended.

ties through amicable means. To this end, the Architectural and Transportation Barriers Compliance Board encourages voluntary and informal resolution of all complaints.

(2) Which is

(i) To be constructed or altered by or on behalf of the United States;

(ii) To be leased in whole or in part by the United States

(A) After August 12, 1968, and before January 1, 1977, after construction or alteration in accordance with plans and specifications of the United States; or

(B) On or after January 1, 1977, including any renewal of a lease entered into before January 1, 1977, which renewal is on or after such date;

(iii) To be financed in whole or in part by a grant or loan made by the United States after August 12, 1968, if the building or facility ay be subject to standards for design, construction, or alteration issued under the law authorizing the grant or loan; or

(iv) To be constructed under the authority of the National Capital Transportation Act of 1960, the National Capital Transportation Act of 1965, or title III of the Washington Metropolitan Area Transit Regulation Compact.

(c) Buildings and facilities not covered. The standards do not apply to

(1) Any privately owned residential structure, unless it is leased by the Federal government on or after January 1, 1977, for subsidized housing programs; or

(2) Any building or facility on a military installation designed and constructed primarily for use by military personnel.

(d) Any covered building or facility, as provided in this section, which is designed, constructed, or altered after the effective date of a standard issued which is applicable to the building or facility, shall be designed, constructed, altered, or leased in accordance with the standard. For purposes of this section, any design, construction, alteration or lease for which bids or offers are received before the effective date of an applicable standard, in response to an invitation for bids or request for proposals, is not subject to that standard.

$ 1150.4 Definitions.

A&TBCB means the Architectural and Transportation Barriers Compliance Board.

Agency means Federal department, agency, or instrumentality as defined in sections 551(1) and 701(b)(1) of title 5 U.S.C., or an agency official authorized to represent the agency. It includes any executive department or independent establishment in the Executive Branch of the government, including wholly owned government corporations, and any establishment in the legislative or judicial branch of the government, except the Senate, the House of Representatives, and the Architect of the Capitol and any activities under his direction.

Alteration means any change in a building or facility or its permanent fixtures or equipment. It includes, but is not limited to, remodeling, renovation, rehabilitation, reconstruction, changes or rearrangement in structural parts, and extraordinary repairs. It does not include normal maintenance, reroofing, interior decoration, or changes to mechanical systems.

Architectural Barriers Act means the Architectural Barriers Act of 1968, Pub. L. 90_480, as amended, 42 U.S.C. 4151 et seq.

Building or facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, parks, sites, or other real property or interest in such property.

Chair means the Chair of the A&TBCB.

Complaint means any written notice of an alleged violation, whether from an individual or organization, or other written information reasonably indicating to the Executive Director a violation of the standard.

Construction means any section of a new building or an addition to an existing building.

Day means calendar day.

Executive Director means the A&TBCB Executive Director.

$ 1150.3 Policy of amicable resolution.

The policy of the Architectural and Transportation Barriers Compliance Board is to maximize the accessibility and usability of buildings, and facili

Subpart B-Parties, Complainants,


Extraordinary repair means the replacement or renewal of any element of an existing building or facility for purposes other than normal maintenance.

Judge means an Administrative Law Judge appointed by the A&TBCB and assigned to the case in accordance with either section 3105 or 3314 of title 5 U.S.C.

PER means Provisional Expedited Relief.

Respondent means a party answering the citation, including PER Citation.

Section 502 of the Rehabilitation Act means section 502 of the Rehabilitation Act of 1973, Pub. L. 93–112, 29 U.S.C. 792, as amended.

Standard means any standard for accessibility and usability prescribed under the Architectural Barriers Act.

$ 1150.11 Parties.

(a) The term parties includes (1) any agency, state or local body, or other person named as a respondent in a notice of hearing or opportunity for hearing, (2) the Executive Director and (3) any person named as a party by order of the judge.

(b) The Executive Director has the sole authority to initiate proceedings by issuing a citation under $1150.42, on the basis of (1) a complaint from any person or (2) alleged violations coming to his/her attention through any means.

(53 FR 39473, Oct. 7, 1988]

$ 1150.5 Scope and interpretation of

rules. (a) These rules shall govern all compliance proceedings held before a judge and all alleged violations coming to the Executive Director as a complaint.

(b) In the absence of a specific provision in these rules, procedure shall be in accordance with the Administrative Procedure Act, subchapter II of chapter 5 and chapter 7, of title 5 U.S.C., and the Federal Rules of Civil Procedure, in that order.

(c) These rules and regulations shall be liberally construed to effectuate the purposes and provisions of the Architectural Barriers Act and section 502 of the Rehabilitation Act.

(d) The rules shall be applied to secure fairness in administration and elimination of unjustifiable expense and delay and to ascertain the truth.

(e) Words importing the singular number may extend and be applied to a plural and vice versa.

$1150.12 Complainants.

(a) Any person may submit a complaint to the A&TBCB alleging that a building or facility does not comply with applicable standards issued under the Architectural Barriers Act. Complaints must be in writing and should be sent to: Executive Director, Architectural and Transportation Barriers Compliance Board, 1111 18th Street, Suite 501, Washington, DC 20036–3894. A complaint form is available at the above address. Complaints may, but need not, contain (1) the complainant's name and where he/she may be reached. (2) the facility or building and, if known, the funding agency, and (3) a brief description of the barriers. A complaint form is available at the above address.

(b) The A&TBCB shall hold in confidence the identity of all persons submitting complaints unless the person submits a written authorization otherwise.

(c) The A&TBCB shall give or mail to the complainant a copy of these regulations.

(d) A complainant is not a party to the proceedings as a matter of course, but may petition the judge to participate under $1150.13.

(e) The A&TBCB shall send the complainant a copy of the final order issued by the judge. The complainant has standing to obtain judicial review of that order.

$ 1150.6 Suspension of rules.

Upon notice to all parties, the judge, with respect to matters pending before him/her, may modify or waive any rule in these regulations upon determination that no party will be unduly prejudiced and that the end of justice will be served.

(53 FR 39473, Oct. 7, 1988)

and shall not be more than 872 inches wide.

§ 1150.13 Participation on petition.

(a) By petitioning the judge, any person may be permitted to participate in the proceedings when he/she claims an interest in the proceedings and may contribute materially to their proper disposition. A complainant shall be permitted to participate in the proceeding when he/she petitions the judge.

(b) The judge may, in his/her discretion, determine the extent of participation of petitioners, including as an intervening party or participant. The judge may, in his/her discretion, limit participation to submitting documents and briefs, or permit the introduction of evidence and questioning of wit

8 1150.22 Signature of documents.

The signature of a party, authorized officer, employee or attorney constitutes a certification that he/she has read the document, that to the best of his/her knowledge, information, and belief there is a good ground to support it, and that it is not interposed for delay. If a document is not signed or is signed with intent to defeat the purpose of this section, it may be stricken as sham and false and the proceeding may proceed as though the document had not been filed.


$ 1150.14 Appearance.

(a) A party may appear in person or by counsel or other representative and participate fully in any proceedings. An agency, state or local body, corporation or other association, may appear by any of its officers or by any employee it authorizes to appear on its behalf.

(b) A representative of a party or participant shall be deemed to control all matters respecting the interest of such party or participant in the proceedings.

(c) This section shall not be construed to require any representative to be an attorney-at-law.

(d) Withdrawal of appearance of any representative is effective when a written notice of withdrawal is filed and served on all parties and participants.

$ 1150.23 Filing and service.

(a) General. All notices, written motions, requests, petitions, memoranda, pleadings, briefs, decisions, and correspondence to the judge, from a party or a participant or vice versa, relating to a proceeding after its commencement shall be filed and served on all parties and participants.

(b) Filing. Parties shall submit for filing the original and two copies of documents, exhibits, and transcripts of testimony. Filings shall be made in person or by mail, with the hearing clerk at the address stated in the notice of hearing or notice of opportunity for hearing, during regular business hours. Regular business hours are every Monday through Friday (Federal legal holidays excepted) from 9 a.m. to 5:30 p.m. Standard or Daylight Savings Time, whichever is effective in the city where the office of the judge is located at the time.

(c) Service. Service of one copy shall be made on each party and participant by personal delivery or by certified mail, return receipt requested, properly addressed with postage prepaid. When a party or participant has appeared by attorney or other representative, service upon the attorney or representative is deemed service upon the party or participant.

Subpart C-Form, Execution, Serv

ice and Filing of Documents for Proceedings on Citations

8 1150.21 Form of documents to be


$ 1150.24 [Reserved]

Documents to be filed under the rules in this part shall be dated, the original signed in ink, shall show the docket number and title of the proceeding and shall show the title, if any, and address of the signatory. Copies need not be signed; however, the name of the person signing the original, but not necessarily his/her signature, shall be reproduced. Documents shall be legible

8 1150.25 Date of service.

The date of service shall be the day when the matter is deposited in United States mail or is delivered in person,

« PreviousContinue »