82 FR 6388 - Amendment of Regulations Implementing Section 504 of the Rehabilitation Act of 1973-Nondiscrimination Based on Disability in Federally Assisted Programs or Activities
DEPARTMENT OF JUSTICE
Office of the Attorney General Federal Register Volume 82, Issue 12 (January 19, 2017)
Office of the Attorney General
Federal Register Volume 82, Issue 12 (January 19, 2017)
| Page Range | 6388-6413 | |
| FR Document | 2017-01057 |
[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)] [Proposed Rules] [Pages 6388-6413] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-01057] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Office of the Attorney General 28 CFR Part 42 [Docket No. OAG 154; AG Order No. 3818-2017] RIN 1105-AB50 Amendment of Regulations Implementing Section 504 of the Rehabilitation Act of 1973--Nondiscrimination Based on Disability in Federally Assisted Programs or Activities AGENCY: Department of Justice. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Department of Justice is issuing this notice of proposed rulemaking to revise its regulation implementing section 504 of the Rehabilitation Act of 1973, as applicable to programs and activities receiving financial assistance from the Department, in order to incorporate amendments to the statute, including the changes in the meaning and interpretation of the applicable definition of disability required by the ADA Amendments Act of 2008; incorporate requirements stemming from judicial decisions; update accessibility standards applicable to new construction and alteration of buildings and facilities; update certain provisions to promote consistency with comparable provisions implementing title II of the Americans with Disabilities Act; and make other non-substantive clarifying edits, including updating outdated terminology and references that currently exist in 28 CFR part 42, such as changing the word ``handicapped'' and similar variations of that word to language referencing ``individuals with disabilities,'' modifying the order of the regulatory provisions to group like provisions together, and adding some headings to make the regulation more user-friendly. DATES: All comments must be submitted on or before March 20, 2017. ADDRESSES: You may submit comments, identified by RIN 1105-AB50, by any one of the following methods:Federal eRulemaking portal: http://www.regulations.gov. Follow the Web site's instructions for submitting comments. Regular U.S. mail: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031- 0885. Overnight, courier, or hand delivery: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 1425 New York Avenue NW., Suite 4055, Washington, DC 20005. FOR FURTHER INFORMATION CONTACT: Rebecca Bond, Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY) (not a toll-free number); or Michael Alston, Director, Office for Civil Rights, Office of Justice Programs, U.S. Department of Justice, at (202) 307-0690 (not a toll-free number). Information may also be obtained from the Department's toll-free ADA Information Line at (800) 514-0301 (voice), or (800) 514-0383 (TTY). You may obtain copies of this notice of proposed rulemaking (NPRM) in an alternative format by calling the ADA Information Line at (800) 514-0301 (voice), or (800) 514-0383 (TTY). This NPRM is also available on the ADA Home Page at http://www.ada.gov. SUPPLEMENTARY INFORMATION: Electronic Submission of Comments and Posting of Public Comments You may submit electronic comments to http://www.regulations.gov. When submitting comments electronically, you must include ``RIN 1105- AB50'' in the subject field, and you must include your full name and address. Electronic files should avoid the use of special characters or any form of encryption and should be free of any defects or viruses. Please note that all comments received are considered part of the [[Page 6389]] public record and made available for public inspection online at http://www.regulations.gov. Submission postings will include any personal identifying information (such as your name, address, etc.) included in the text of your comment. If you include personal identifying information (such as your name, address, etc.) in the text of your comment but do not want it to be posted online, you must include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your comment. You must also include all the personal identifying information you want redacted along with this phrase. Similarly, if you submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov. I. Executive Summary Purpose The Department of Justice (Department) is issuing this rule in order to revise and update its regulation implementing section 504 of the Rehabilitation Act of 1973 (section 504) as applicable to programs and activities receiving financial assistance from the Department. Section 504 prohibits discrimination on the basis of disability in federally conducted and assisted programs or activities. The Department implements the requirements of section 504 for federally assisted programs through its regulation at 28 CFR part 42, subpart G (federally assisted regulation). Major Provisions The major provisions of this proposed rule can be summarized as follows. First, the NPRM proposes to revise the regulatory text to incorporate a range of statutory amendments to the Rehabilitation Act, including the following: (1) Changes in the meaning and interpretation of the definition of ``disability'' required by the ADA Amendments Act of 2008, which also amended section 504's definition of ``disability;'' (2) the addition of definitions of ``drugs'' and ``illegal use of drugs'' and the exclusion from coverage of an individual who is currently engaging in the illegal use of drugs, all of which are definitions used in the ADA; (3) the adoption of ``person first'' language, such as changing the term ``handicapped person'' to ``individual with a disability''; and (4) the application of the ADA title I standards to determinations of employment discrimination under section 504. Second, the proposed regulation incorporates into the regulatory text existing requirements, which stem from longstanding Supreme Court decisions interpreting section 504, by adding provisions setting forth the ``direct threat'' defense and the obligation to provide reasonable accommodations. Third, the proposed rule updates the section 504 accessibility standards applicable to new construction and alteration of buildings and facilities from the Uniform Federal Accessibility Standards to the 2010 ADA Standards for Accessible Design. Fourth, the proposed rule revises the language of certain provisions, including the general nondiscrimination prohibitions and the requirement to provide auxiliary aids and services, in order to promote consistency with comparable provisions implementing title II of the ADA. The rule also eliminates the exception for provision of auxiliary aids and services for recipients that have fewer than fifteen employees. Fifth, the proposed rule revises the regulation's compliance procedures: (1) To provide alternative remedies for the Department in cases where a recipient of Federal assistance fails to provide compliance information, such as compliance reports or information sought by beneficiaries; (2) to provide for the protection of confidential information without barring the responsible Department official or designee from accessing information necessary for evaluating or seeking to enforce compliance with the federally assisted regulation; and (3) to direct the filing of complaints alleging violations of section 504 by recipients of financial assistance from the Department with the Office of Justice Programs. Summary of Benefits and Costs This rulemaking is not considered economically significant under Executive Order 12866. Additionally, the Department is certifying that the rule will not have a significant economic impact on a substantial number of small entities in accordance with the Regulatory Flexibility Act, as amended. II. Background A. Section 504 Legislative and Regulatory History The Department of Justice (Department) implements the requirements of section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 504), which prohibits discrimination on the basis of disability in federally conducted and assisted programs or activities, through its regulations at 28 CFR part 39, applicable to programs and activities conducted by the Department (federally conducted regulation), and 28 CFR part 42, subpart G, applicable to recipients to whom the Department extends Federal financial assistance (federally assisted regulation). On June 3, 1980, the Department published its section 504 federally assisted regulation. See 28 CFR part 42, subpart G, 45 FR 37620. Since then, Congress has amended certain provisions of the Rehabilitation Act of 1973, Public Law 93-112 (Sept. 26, 1973) (Rehabilitation Act), necessitating revisions to the Department's section 504 federally assisted regulation.\1\ The Americans with Disabilities Act of 1990, Public Law 101-336 (July 26, 1990) (ADA), revised the Rehabilitation Act to include definitions of the terms ``drugs'' and ``illegal use of drugs,'' explaining that these terms were to be interpreted consistent with the principles of the Controlled Substances Act, 21 U.S.C. 801 et seq. See 29 U.S.C. 705(10). The ADA also amended the Rehabilitation Act to expressly exclude from coverage an individual who is currently engaging in the illegal use of drugs. See 29 U.S.C. 705(10), (20)(C). The Rehabilitation Act Amendments of 1992, Public Law 102-569 (Oct. 29, 1992) (the 1992 Amendments), adopted the use of ``person first'' language by changing the term ``handicapped person'' to ``individual with a disability'' and provided that the standards applied under title I of the ADA shall apply to determinations of employment discrimination under section 504. More recently, the ADA Amendments Act of 2008 (ADA Amendments Act), Public Law 110-325 (Sept. 25, 2008), revised the meaning and interpretation of the definition of ``disability'' under section 504 to align them with the ADA. In addition, there have been significant [[Page 6390]] Supreme Court decisions interpreting section 504 requirements relating to the principles of ``direct threat'' and reasonable accommodation. See, e.g., Sch. Bd. of Nassau Cty. v. Arline, 480 U.S. 273 (1987); Alexander v. Choate, 469 U.S. 287 (1985); Se. Cmty. Coll. v. Davis, 442 U.S. 397 (1979). Although Arline, Choate, and Davis have been applied by lower courts since their issuance, the Department's existing section 504 federally assisted regulation does not clearly enunciate the Court's holdings. The Department has not amended its section 504 federally assisted regulation since its original publication other than through the adoption in 2003 of certain amendments to implement the provisions of the Civil Rights Restoration Act of 1987. See 68 FR 51334 (Aug. 26, 2003); Public Law 100-259 (Mar. 22, 1988). The revisions to this regulation are part of the Department's retrospective plan under Executive Order 13563, completed in 2011. --------------------------------------------------------------------------- \1\ See, e.g., Public Law 99-506 (Oct. 21, 1986); Public Law 100-259 (Mar. 22, 1988); Public Law 100-630 (Nov. 7, 1988); Public Law 101-336 (July 26, 1990); Public Law 102-569 (Oct. 29, 1992); Public Law 103-382 (Oct. 20, 1994); Public Law 105-220 (Aug. 7, 1998); Public Law 107-110 (Jan. 8, 2002); Public Law 110-325 (Sept. 25, 2008); Public Law 113-128 (July 22, 2014). --------------------------------------------------------------------------- B. Relationship Between Section 504 and the ADA Title II of the ADA prohibits discrimination on the basis of disability by public entities (i.e., State and local governments and their agencies) and is modeled on section 504. 42 U.S.C. 12132 (``[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.''). A significant amount of financial assistance from the Department goes to entities that are also covered by title II of the ADA. In addition, the Department provides financial assistance to some entities covered by title III of the ADA.\2\ Title II and section 504 are generally understood to impose similar requirements, given the similar language employed in the ADA and the Rehabilitation Act and the congressional directive that the ADA be construed to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act. See, e.g., 42 U.S.C. 12201(a).\3\ Many of the changes that the Department is proposing are intended to conform the language of specific provisions in the section 504 regulation to corresponding provisions in the title II regulation, many of which were updated in 2010. The Department believes it is in the interest of the recipients who have to apply the requirements of both section 504 and title II that, where appropriate, the comparable requirements in the corresponding regulations for both statutes are expressed in comparable language. --------------------------------------------------------------------------- \2\ Title III prohibits discrimination on the basis of disability by: (1) Public accommodations (i.e., private entities that own, operate, lease, or lease to places of public accommodation); (2) newly constructed and altered commercial facilities; and (3) private entities that offer certain examinations and courses related to educational and occupational certification. Recipients of Federal assistance that are also title III entities must comply with both the section 504 and the title III regulations. \3\ The 1992 Amendments revised the Rehabilitation Act's findings, purpose, and policy provisions to incorporate language acknowledging the discriminatory barriers faced by persons with disabilities, and recognizing that persons with disabilities have the right to ``enjoy full inclusion and integration in the economic, political, social, cultural and educational mainstream of American society.'' 29 U.S.C. 701(a)(3) as amended. The legislative history to the 1992 Amendments states ``[t]he statement of purpose and policy is a reaffirmation of the precepts of the Americans with Disabilities Act, which has been referred to as the 20th century emancipation proclamation for individuals with disabilities. It is the Committee's intent that these principles guide the policies, practices, and procedures developed under all titles of the [Rehabilitation] Act.'' S. Rep. 102-357 at 14 (Aug. 3, 1992); H.R. Rep. 102-822 at 81 (Aug. 10, 1992). --------------------------------------------------------------------------- II. Section-by-Section Analysis This section provides a detailed description of the Department's proposed changes to the section 504 federally assisted regulation and the reasoning behind the proposals. If the Department is not proposing a change to a regulation section, the unchanged section is not discussed. The Department is proposing to modify the order and names of some of the regulatory provisions to group like provisions together and make the regulation more user-friendly. This section-by-section analysis follows the revised order of the regulatory text. General Section 42.502--Application, Broad Coverage, and Relationship to Other Laws The Department proposes to revise existing Sec. 42.502 to add clarifying language to the discussion of the application of this subpart, to add a new paragraph (b), which addresses the broad scope of coverage required by the ADA Amendments Act and the section 504 federally assisted regulation, and to move and revise the discussion of the relationship to other laws from existing Sec. 42.505(h) to a new paragraph (c) in this section. Section 42.502(a)--Application The Department proposes to add a sentence clarifying that this subpart does not apply to programs or activities conducted by the Department. The Department's section 504 federally conducted regulation is found at 28 CFR part 39. Section 42.502(b)--Broad Scope of Coverage The ADA Amendments Act was signed into law on September 25, 2008, and became effective on January 1, 2009. Congress enacted the ADA Amendments Act in order to ensure that the definition of disability is broadly construed and applied without extensive analysis, and to supersede Supreme Court decisions that had too narrowly interpreted the ADA's definition of disability.\4\ The ADA Amendments Act not only amended the meaning and interpretation of the definition of disability applicable to the ADA, it also amended the Rehabilitation Act of 1973 to require similar changes to the meaning and interpretation of section 504's definition of disability at 29 U.S.C. 705(20)(B). --------------------------------------------------------------------------- \4\ Congress specifically found that the holdings of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), and Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), narrowed the broad scope of protection intended to be afforded by the ADA. ADA Amendments Act, sec. 2. Congress also stated that one of the purposes of the ADA Amendments Act is ``to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations * * *.'' Id., sec. 2(b)(5). --------------------------------------------------------------------------- The ADA Amendments Act does not alter the basic elements of the definition of disability in the ADA and section 504, but it significantly clarifies how the term ``disability'' is to be interpreted and adds important rules of construction to inform that interpretation. Specifically, Congress directed that the definition of disability shall be construed broadly and that the determination of whether an individual has a disability should not demand extensive analysis. ADA Amendments Act, sec. 2(b)(5), 4(a). Congress also authorized the Equal Employment Opportunity Commission (EEOC) and the Department to issue regulations implementing the ADA Amendments Act changes, including rules of construction. See id., sec. 6(a)(2); 42 U.S.C. 12205a. The Department's ADA Amendments Act regulation, along with the EEOC's title I ADA Amendments Act regulation, include introductory sections describing the requirement to construe the definition of disability broadly and sets forth rules of construction consistent with that goal. See 28 CFR 35.101(b) and 29 CFR 1630.1(c)(4).\5\ The Department's [[Page 6391]] proposed ``scope of coverage'' provision at Sec. 42.502(b) is modeled on the ADA's broad construction provision and provides that, consistent with the ADA Amendments Act's purpose of reinstating a broad scope of protection under both the ADA and section 504, the definition of ``disability'' in the pertinent subpart ``shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of section 504.'' The new provision further provides that the primary object of attention in cases brought under that subpart ``should be whether entities covered under section 504 have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of `disability.' '' The question of whether an individual meets the definition of ``disability'' under this subpart should not demand extensive analysis. --------------------------------------------------------------------------- \5\ The Department's ADA Amendments Act regulation followed the EEOC approach in incorporating a broad construction provision and rules of construction to embody the requirements of the ADA Amendments Act. See 81 FR 53203 (Aug. 11, 2016). --------------------------------------------------------------------------- Section 42.502(c)--Relationship to Other Law The Department is proposing to move its provision addressing the relationship of section 504 to State and local laws that provide lesser protections for persons with disabilities from its location in the current regulation at Sec. 42.505(h) to Sec. 42.502(c)(1) in the revised regulation. The Department is proposing a minor edit to this provision by adding ``obviated by or otherwise'' before ``affected'' so that the provision would read: ``The obligation to comply with this subpart is not obviated by or otherwise affected by the existence of any State or local law or other requirement that, on the basis of disability, imposes prohibitions or limits upon the eligibility of qualified individuals with disabilities to receive services or to practice any occupation or profession.'' In addition, the Department is proposing to add a new provision at Sec. 42.502(c)(2) that addresses the relationship between section 504 and other Federal, State, and local laws that provide greater protections to persons with disabilities. In the ADA, Congress expressly provided that nothing in the ADA invalidated or limited the remedies, rights, and procedures of any Federal law, or State or local law that provides greater or equal protection for the rights of individuals with disabilities. See 42 U.S.C. 12201(b). The Department incorporated this principle into its ADA title II and title III regulations at 28 CFR 35.103(b) and 28 CFR 36.103(c), respectively. The Department believes that these principles are equally applicable to section 504. Proposed Sec. 42.502(c)(2) incorporates these principles and provides that ``[t]his subpart does not invalidate or limit the remedies, rights, and procedures of any other Federal law, or State or local law (including State common law), that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.'' Section 42.503--Definitions The Department proposes revising certain definitions to make them consistent with the language used to define corresponding terms in the Department's ADA regulations; deleting terminology that is no longer necessary or has become obsolete; revising or adding certain terms to incorporate statutory changes to the Rehabilitation Act; adding other definitions for clarity; and making minor technical edits to existing definitions. Also, for ease of reference, the Department proposes moving the ``definitions'' section, currently codified at Sec. 42.540, to the beginning of the subpart at Sec. 42.503. First, in order to ensure consistency of terminology between section 504 and the ADA, the Department is proposing to add definitions of the following terms from the Department's ADA title II regulation at 28 CFR 35.104: ``2004 ADAAG,'' ``2010 Standards,'' ``Auxiliary aids and services,'' ``Current illegal use of drugs,'' ``Historic preservation programs,'' ``Qualified interpreter,'' ``Qualified reader,'' and ``Video remote interpreting (VRI) service.'' The Department also proposes to delete several terms from the regulation, including ``Alcohol abuse,'' ``Benefit,'' and ``Handicap,'' as well as obsolete references to Departmental components that no longer exist within the Department. First, with respect to ``alcohol abuse,'' the Department believes the term is no longer necessary given that the definition was only applicable to the regulation's employment provisions, and those provisions are being revised to reference the requirements in title I of the ADA, in accordance with section 503(b) of the 1992 Amendments (codified at 29 U.S.C. 791(f)). Second, the Department also proposes to delete the definition of ``benefit'' as unnecessary given that the meaning of ``benefit'' is commonly understood. Third, the Department proposes to delete the definition of ``handicap,'' as it is neither necessary nor appropriate following the ``people first'' language changes from the 1992 Amendments, which use the term ``disability.'' And fourth, the Department proposes to delete the definitions of ``LEAA,'' ``NIJ,'' ``BJS,'' ``OJARS,'' and ``OJJDP.'' Some of these offices no longer exist, and to account for future changes in organization, the regulation, where appropriate, will refer generally to ``grant-making components of the Department.'' Finally, the Department proposes the following revisions and additions to the ``definitions'' section to incorporate statutory changes to the Rehabilitation Act and to provide greater clarity and consistency of terminology. ``Applicant'' The Department proposes to add the definition of ``applicant'' to the proposed regulation using language consistent with the definition in the Department's regulation implementing title VI of the Civil Rights Act, at 28 CFR 42.102(h). ``Component'' The Department proposes to add a definition of ``component'' to the proposed regulation. Given the various names for the Department's subagencies (e.g., bureaus, agencies, boards, etc.), the Department believes that the term ``component'' would provide a simpler and less confusing reference. ``Department'' The Department proposes to revise the definition of ``department'' to clarify that the term includes all of the Department's components. ``Direct Threat'' The Department proposes to add, with respect to non-employment services, programs, and activities, a definition of ``direct threat'' that is based upon the definition provided in the Department's title II regulation at 28 CFR 35.104. The Department also proposes to include, for the employment context, an additional paragraph that adopts the definition of ``direct threat'' in the EEOC's regulation at 29 CFR 1630.2(r). ``Disability'' As previously discussed, the ADA Amendments Act not only amended the meaning and interpretation of the definition of ``disability'' applicable to the ADA, it also amended the Rehabilitation Act of 1973 to require similar changes to the meaning and interpretation of the definition of ``disability'' at 29 U.S.C. 705(20)(B), applicable to section 504. The Department has decided that rather than spelling out the meaning and interpretation of the definition of [[Page 6392]] disability in this regulation, it will incorporate by reference the Department's title II definition of disability found at 28 CFR part 35, which has recently undergone revisions to reflect the requirements of the ADA Amendments Act. Due to the changes that the ADA Amendments Act made to the meaning and interpretation of the definition of disability, participants in recipients' programs and activities who, before, may not have been determined to have a disability under section 504, may now be found to have a disability. The Rehabilitation Act and the ADA define ``disability'' as including: (1) A physical or mental impairment that substantially limits a major life activity; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 29 U.S.C. 705(9)(B); 42 U.S.C. 12102(1). The ADA Amendments Act does not alter these three basic elements of the definition of disability, but it does significantly clarify how the term ``disability'' is to be interpreted and adds important rules of construction to inform that interpretation. Congress directed that the definition of disability shall be construed broadly and that the determination of whether an individual has a disability should not demand extensive analysis. 42 U.S.C. 12102. The Department proposes to update its section 504 federally assisted regulation to reflect these changes. ``Drug'' The ADA amended the Rehabilitation Act to include a definition of ``drug.'' See ADA sec. 512(b) (codified at 29 U.S.C. 705(10)). The Department proposes to add that definition to its regulation. ``Facility'' The Department proposes to revise the existing definition of ``facility'' to conform more closely to the definition of ``facility'' in the Department's title II regulation by including within the definition's scope sites, complexes, rolling stock or other conveyances. ``Historic Properties'' The Department proposes to include a definition of ``historic properties'' that is substantially similar to that provided in the Department's title II regulation, 28 CFR 35.104. ``Illegal Use of Drugs'' The Department proposes to replace the existing definition of ``drug abuse'' with a definition that is substantially similar to the definition of ``illegal use of drugs'' that was added to the Rehabilitation Act by the ADA in 1990. See ADA Sec. 512(b) (codified at 29 U.S.C. 705(10)). ``Individual With a Disability'' The Department proposes to replace the definition of ``handicapped person'' with ``individual with a disability,'' consistent with the 1992 Amendments, which provide ``people first'' language (e.g., ``individuals with disabilities'') and which define ``individual with a disability'' as ``any person who has a disability as defined in [section 3 of the ADA].'' See 29 U.S.C. 705(20)(B). Consistent with the definition in the Department's ADA title II regulation, the proposed definition also clarifies that the term ``individual with a disability'' does not include an individual who is currently engaging in the illegal use of drugs, when a recipient acts on the basis of such use. The proposed definition eliminates references to individuals who would not be considered to have a disability for purposes of employment, as such references are no longer necessary because the regulation now references the EEOC regulation at 29 CFR part 1630 with respect to discrimination on the basis of disability in employment. ``Primary Recipient'' The Department proposes to add a definition of ``primary recipient'' to the regulation. The Department proposes to adopt a definition that is substantially similar to the definition of ``primary recipient'' provided in the Department's regulation implementing title VI of the Civil Rights Act, at 28 CFR 42.102(g). The revised regulation defines ``primary recipient'' as ``any recipient that is authorized or required to extend Federal financial assistance to another recipient.'' ``Qualified Individual With a Disability'' The Department proposes to replace the definition of ``qualified handicapped person'' with ``qualified individual with a disability.'' With respect to employment, the proposed definition incorporates the definition of ``qualified'' as provided in the EEOC regulation at 29 CFR 1630.2(m), which implements the employment standards of title I of the ADA, in accordance with section 503(b) of the 1992 Amendments (codified at 29 U.S.C. 791(f)). With respect to programs or activities, the proposed definition is substantially similar to the definition of ``qualified individual with a disability'' from the Department's ADA title II regulation, 28 CFR 35.104. ``Subrecipient'' The Department proposes to add a definition of ``subrecipient'' to the proposed regulation. Entities receiving Federal financial assistance through a primary recipient also must comply with the Department's section 504 federally assisted regulation. General Nondiscrimination Requirements Section 42.510--General Prohibitions Against Discrimination Section 42.510(b)-(f)--Prohibited Discriminatory Actions The Department proposes to update and clarify the discriminatory actions prohibited under Sec. 42.503 of the Department's current regulation. With the exception of the revisions addressed below, the Department proposes retaining the same prohibited discriminatory actions as in the current regulation but, where applicable, adopting the language that is provided in the Department's ADA title II regulation for consistency, and reorganizing and re-titling some of the provisions, as appropriate. For instance, the provision relating to the prohibition on retaliation and intimidation at Sec. 42.503(b)(1)(vii) in the current regulation has been moved to a new section at proposed Sec. 42.510(k). The Department also proposes to add several regulatory provisions that are consistent with provisions in the Department's ADA title II regulation and that further illustrate the types of actions that are prohibited discrimination under section 504. The Department notes that current Sec. 42.503(g) (renumbered as Sec. 42.510(l)) states that ``[t]he enumeration of specific forms of prohibited discrimination in this subpart is not exhaustive but only illustrative.'' The Department's current regulation at Sec. 42.503(b)(iv) prohibits a recipient from denying ``a qualified [person with a disability] an equal opportunity to participate in the program or activity by providing services to the program.'' This prohibition does not clearly explain how a qualified individual with a disability would be denied an equal opportunity to participate in a program or activity ``by providing services'' to the program. The Department is proposing to revise this paragraph for clarity but is not changing the meaning. The revised paragraph (renumbered as Sec. 42.510(b)(1)(v)) states that a recipient may not ``[d]eny a qualified individual with a disability an equal opportunity to provide services to the program or activity.'' Under this provision, for example, a recipient that uses [[Page 6393]] volunteers to provide services may not refuse to allow individuals with disabilities to work as volunteers. The Department proposes to delete the provision in the Department's current regulation at Sec. 42.503(b)(5), which provides that ``[a] recipient is prohibited from discriminating on the basis of handicap in aid, benefits, or services operating without Federal financial assistance where such action would discriminate against the handicapped beneficiaries or participants in any program or activity of the recipient receiving Federal financial assistance.'' This provision no longer appears to be necessary given the expanded definition of ``program or activity'' provided under the Civil Rights Restoration Act, 42 U.S.C. 2000d-4a, which, in the case of assistance to a State or local government, includes all the operations of the department or agency to which funding is extended. The Department proposes to move the requirements in existing Sec. 42.503(e) and (f), which currently address the recipient's obligation to ensure effective communication to applicants, employees and beneficiaries, to new Sec. 42.511, which specifically addresses the recipient's communication requirements in greater detail, consistent with the Department's title II regulation at 28 CFR 35.160, 35.161, and 35.164. The Department has also conformed the language of these provisions to the language of the title II regulation. It notes that the definition of ``auxiliary aids'' that is in Sec. 42.503(f) of the existing regulation is replaced by the revised definition of ``auxiliary aids and services'' provided in the renumbered definitional section at proposed Sec. 42.503. Section 42.510(g)--Reasonable Accommodations The Department proposes to add a new provision at Sec. 42.510(g)(1) that affirmatively states the longstanding section 504 obligation to provide reasonable accommodations by making changes to policies, practices, and procedures unless those changes can be shown to pose a fundamental alteration to the program or activity or an undue financial and administrative burden.\6\ The obligation to modify policies, practices, or procedures was first enunciated by the Supreme Court in Southeastern Community College v. Davis, 442 U.S. 397 (1979), which held that while section 504 prohibits the exclusion of an otherwise qualified individual with a disability from participation in a federally funded program solely by reason of the individual's disability, that person is not protected by section 504 if, in order to meet reasonable eligibility standards, the person needs program or policy modifications that would fundamentally alter the nature of the provider's program. Because the Davis Court analyzed the case in terms of the proper interpretation of the statutory term ``otherwise qualified,'' agency section 504 regulations promulgated immediately after Davis addressed the obligation to provide reasonable accommodations outside of the employment arena by defining ``qualified handicapped person,'' as one who meets the essential eligibility requirements of the program 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. See, e.g., 28 CFR 39.103 (the Department's section 504 federally conducted regulation). --------------------------------------------------------------------------- \6\ Courts generally have interpreted the obligation to provide reasonable accommodations under section 504 consistently with the obligation to provide reasonable modifications under title II. See, e.g., Forest City Daly Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144, 151 (2d Cir. 1999) (analyzing reasonable accommodations in the same way under the FHA, ADA, and Section 504); Super v. J. D'Amelia & Associates, LLC, No. 3:09CV831 SRU, 2010 WL 3926887, at *3 (D. Conn. Sept. 30, 2010) (``The relevant portions of the FHA, ADA, and Section 504 offer the same guarantee that a covered entity . . . must provide reasonable accommodations in order to make the entity's benefits and programs accessible to people with disabilities.''). --------------------------------------------------------------------------- Subsequently, in Alexander v. Choate, 469 U.S. 287 (1985), which addressed a section 504 challenge to a State policy reducing the annual number of days of inpatient hospital care covered by the State's Medicaid program, the Court implicitly acknowledged that the obligation to provide reasonable accommodations could be considered as an affirmative obligation, noting, ``the question of who is `otherwise qualified' and what actions constitute `discrimination' under the section would seem to be two sides of a single coin; the ultimate question is the extent to which a grantee is required to make reasonable modifications [accommodations] in its programs for the needs of the handicapped.'' Id. at 299 n.19. Alexander also introduced the concept of undue financial and administrative burden as a limitation on the reasonable accommodation obligation. In responding to the petitioners' contention that any durational limitation on inpatient coverage in a State Medicaid plan is a violation of section 504, the court stated: ``It should be obvious that the administrative costs of implementing such a regime would be well beyond the accommodations that are required under Davis.'' Id. at 308. Over the past decades, in keeping with these Supreme Court decisions, Federal courts and Federal agencies have regularly acknowledged Federal agencies' affirmative obligation to ensure that recipients provide qualified individuals with disabilities reasonable accommodations in programs and activities unless the recipient can demonstrate that making these accommodations would fundamentally alter the program or activity or result in an undue financial and administrative burden. However, traditionally, agencies' section 504 regulations have lacked a specific provision implementing this requirement outside of the employment arena.\7\ --------------------------------------------------------------------------- \7\ The principle of ``reasonable accommodation'' is addressed in agency section 504 regulations with respect to employment. See, e.g., the Department's current section 504 federally assisted regulation at 28 CFR 42.511 and U.S. Department of Health and Human Services' section 504 federally assisted regulation at 45 CFR 84.12. --------------------------------------------------------------------------- The Department notes that title I of the ADA also uses the term ``reasonable accommodation'' to apply to the job application process, work environment, or manner or circumstances under which the position held or desired is customarily performed, and the ability to enjoy equal benefits and privileges of employment. However, the specific ADA title I regulatory requirements related to this term should not be applied to non-employment related requests for reasonable accommodations under section 504, and the Department proposes to clarify at proposed Sec. 42.510(g)(3) that with respect to employment, the definitions and standards that apply to ``reasonable accommodation'' and ``undue hardship'' in the EEOC's regulation implementing title I of the ADA apply to this subpart. In addition, when Congress enacted the ADA Amendments Act, it expressly provided that a covered entity need not provide a reasonable modification [or accommodation] to policies, practices, or procedures to an individual who meets the definition of disability under the ``regarded as'' prong. ADA Amendments Act, sec. 6(a)(1). While Congress did not specifically apply this provision of the ADA Amendments Act to section 504, the Department believes that it is equally appropriate to apply this limitation to reasonable accommodations under section 504 and proposes to adopt this limitation at Sec. 42.510(g)(2) of this regulation. [[Page 6394]] Lastly, the Department notes that the necessary reasonable accommodations will vary based on the need of the individual and the impact of the accommodation on the recipient. Where the recipient receives funding from multiple Federal agencies, each Federal agency's particular requirements will also impact the types of reasonable accommodations that a recipient must provide. Section 42.510(h)--Prohibition on Surcharges It has been a longstanding principle under both section 504 and the ADA that recipients or covered entities may not charge affected individuals or groups for the cost of measures required to provide an individual or group with nondiscriminatory treatment. This principle is already set forth in the Department's title II regulation at 28 CFR 35.130(f), and the Department is proposing to add it to Sec. 42.510(h) of the Department's section 504 federally assisted regulation as well. Section 42.510(i)--Prohibition on Associational Discrimination The Department's ADA regulations provide protection for individuals associated with individuals with disabilities.\8\ While the Rehabilitation Act does not expressly refer to individuals associated with individuals with disabilities, it does permit ``any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance'' to bring suit under the Rehabilitation Act. 29 U.S.C. 794a(a)(2) (emphasis added). Courts have recognized this provision as providing the basis for associational standing under the Rehabilitation Act and noted that despite the differences in authorizing language under the Rehabilitation Act and the ADA, ``[i]t is widely accepted that under both the [Rehabilitation Act] and the ADA, non-disabled individuals have standing to bring claims when they are injured because of their association with a disabled person.'' McCullum v. Orlando Reg'l Healthcare Sys., Inc., 768 F.3d 1135, 1142 (11th Cir. 2014) (citing cases). Accordingly, the Department is proposing to add Sec. 42.510(i), which specifically prohibits a recipient from excluding or otherwise denying aid, benefits, or services of its programs or activities to an individual because of that individual's relationship or association with an individual with a known disability. --------------------------------------------------------------------------- \8\ Titles I and III of the ADA explicitly forbid discrimination because of the known disability of an individual with whom the individual is known to have a ``relationship or association.'' 42 U.S.C. 12112(b)(4), 12182(b)(1)(E). Although title II does not have corresponding language, the legislative history of the ADA demonstrates Congress's intent to include association within the scope of discrimination prohibited by title II. The House Committee on Education and Labor indicated that title II's prohibitions should be ``identical to those set out in the applicable provisions of titles I and III.'' H.R. Rep. No. 101-485(II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367. The House Report went on to indicate that: ``Unlike the other titles in this Act, title II does not list all of the forms of discrimination that the title is intended to prohibit.* * * [T]he Attorney General [is directed] to issue regulations setting forth the forms of discrimination prohibited. The Committee intends that the regulations under title II incorporate interpretations of the term discrimination set forth in titles I and III of the ADA to the extent that they do not conflict with the Section 504 regulations.'' H.R. Rep. No. 101- 485(III), at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 475. Thus, the Department's regulations under both titles II and III prohibit associational discrimination. See 28 CFR 35.130(g) and 28 CFR 36.205. --------------------------------------------------------------------------- Section 42.510(j)--Eligibility Criteria The Department proposes to add a new provision at Sec. 42.510(j) that prohibits a recipient from imposing or applying eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any aid, benefit, or service, unless such criteria can be shown to be necessary for the provision of the aid, benefit, or service being offered. This principle is already set forth in the Department's title II regulation at 28 CFR 35.130(b)(8). The prohibition of the imposition of ``criteria that `tend to' screen out an individual with a disability'' actually had its origins in the Department of Health and Human Services' section 504 regulation at 45 CFR 84.13 (1991), which was cited by the Department in its 1991 title II rulemaking. See 28 CFR part 35, app. B, 56 FR 35694, 35705 (July 26, 1991). Accordingly, the Department believes that it is appropriate to add this provision to the general prohibitions against discrimination section. Section 42.511--Communications The Department is proposing to reorganize and revise its articulation of recipients' longstanding obligation to ensure that communications are effectively conveyed to individuals with disabilities and to provide appropriate auxiliary aids and services, using language that generally conforms with the effective communication provisions in the Department's title II regulation at 28 CFR 35.160, 35.161, and 35.164. Specifically, the Department is proposing to move the provisions addressing communication in the section 504 regulation from the general nondiscrimination obligations in current Sec. 42.503(e) and (f), place these revised provisions in a new Sec. 42.511, and generally conform the language to the title II provisions. As mentioned earlier, the Department has revised the definitions section of the regulation at proposed Sec. 42.503 to include definitions of the terms ``auxiliary aids and services,'' ``qualified interpreter,'' ``qualified reader,'' and ``video remote interpreting (VRI) service.'' Finally, the Department is proposing to remove the limitation on the obligation to provide auxiliary aids for recipients with fewer than 15 employees, currently found in Sec. 42.503(f). Section 42.511(a)--General Obligation Proposed Sec. 42.511(a) sets forth the general obligation (formerly set forth in Sec. 42.503(e)) that a recipient take ``appropriate steps to ensure that communications with applicants, participants, beneficiaries, members of the public, and companions with disabilities are as effective as communications with others.'' This general obligation parallels the general communications requirement in the ADA title II regulation, at 28 CFR 35.160(a)(1). The Department recognizes that since the Department's section 504 federally assisted regulation was first issued in 1980, electronic and information technology has changed the way that recipients communicate with interested persons. Individuals with disabilities--like other members of the public--should be able to equally engage with a recipient's services, programs, and activities using electronic and information technology. Opportunities for such engagement require that electronic and information technology be accessible to ensure that communication with individuals with disabilities is as effective as communication with others. Section 42.511(b)--Auxiliary Aids and Services Proposed Sec. 42.511(b)(1), which tracks language in existing Sec. 42.503(f), provides that ``[a] recipient shall furnish appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities, including applicants, participants, beneficiaries, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a recipient.'' Proposed Sec. 42.511(b)(2) provides that ``[t]he type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the [[Page 6395]] context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a recipient entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.'' An example of an auxiliary aid, which would apply in the corrections setting, would be the provision of videophones or other video-based telecommunication services to ensure that incarcerated individuals with disabilities can communicate as effectively as others who use public telephones made available by the facility. Section 42.511(c)--Limitations on Use of Accompanying Adults or Children as Interpreters Proposed Sec. 42.511(c) includes the express limitations on the use of accompanying adults or children as interpreters that are specified in the ADA title II rule at 28 CFR 35.160. Under section 504, responsibility for providing effective communication, including the use of interpreters, falls directly on recipients, and they may not require an individual to bring someone to serve as an interpreter. Consistent with the ADA provisions, proposed Sec. 42.511(c) provides that a recipient may rely on an adult or minor child companion to interpret only in very limited emergency circumstances when no qualified interpreters are available. Specifically, proposed Sec. 42.511(c)(2)- (3) only apply to emergencies involving an ``imminent threat to the safety or welfare of an individual or the public.'' The imminent threat exception is not intended to apply to the typical and foreseeable emergency situations that are part of the normal operations of institutions, such as visits to the emergency room or responses by law enforcement to situations involving a threat to the safety or welfare of an individual or the public. As such, a recipient may rely on an accompanying individual to interpret or facilitate communication under the proposed Sec. 42.511(c)(2)-(3) imminent threat exception only in truly exigent circumstances, i.e., where any delay in providing immediate services to the individual could have life-altering or life- ending consequences. In nonemergency circumstances, a recipient may rely on an adult companion (but not a minor child) to interpret only when, (1) the individual requests this, (2) the accompanying adult agrees, and (3) reliance on the accompanying adult is appropriate under the circumstances. Under no circumstances may a recipient rely on an accompanying adult to interpret when there is reason to doubt the individual's impartiality or effectiveness. Section 42.511(d)--Video Remote Interpreting (VRI) Services When the Department updated its title II effective communication provisions to include performance requirements for VRI, at 28 CFR 35.160(d), the intent was to ensure that if VRI is used, it would be used in a manner that makes it as effective as when sign language interpreters are provided on site. The Department certainly has recognized that VRI can be an effective method of providing interpreting services in certain circumstances, but not in others. See 75 FR 56164, 56196 (Sept. 15, 2010). For example, VRI should be effective in many situations involving routine medical care, as well as in the emergency room where urgent care is important, but no in-person interpreter is available; however, VRI may not be effective in situations involving surgery or other medical procedures where the patient is limited in his or her ability to see the video screen. Similarly, VRI may not be effective in situations where there are multiple people in a room and the information exchanged is highly complex and fast-paced. The Department recognizes that in these and other situations, such as where communication is needed for persons who are deaf-blind, it may be necessary to summon an in-person interpreter to assist certain individuals. Since the Department added this language to its title II regulation, it has become aware that some entities subject to title II, particularly in the medical environment, have not properly evaluated whether VRI is effective in particular situations, nor have they understood that these standards require that the VRI image is actually positioned so that it can be seen by the individual with a hearing disability. For example, in some circumstances, a patient who is lying prone while receiving medical treatment may have difficulty seeing the image on the screen and thus may be unable to communicate effectively using the remote sign language interpreter. Similarly, a pregnant woman who is deaf and who needs to regularly change positions while receiving medical assistance during labor and delivery may not always be able to see the image on the screen. Accordingly, the Department is adding language in its proposed VRI provision to expressly clarify that the VRI image must be positioned so that the individual with a hearing disability can easily see the interpreter on the screen. Proposed Sec. 42.511(d) states that a recipient that provides qualified interpreters via VRI services shall ensure that it provides ``[a] sharply delineated image that is large enough to display the interpreter's face, arms, hands, and fingers, and the participating individual's face, arms, hands, and fingers, and can be seen by the participating individual regardless of the individual's body position.'' Section 42.511(e)--Telecommunications Proposed Sec. 42.511(e) incorporates the ADA title II regulatory requirement, at 28 CFR 35.161, that where a public entity communicates by telephone with applicants and beneficiaries, text telephones (TTY) or equally effective telecommunications systems must be used to communicate with individuals with disabilities. Unlike the corresponding ADA requirement at 28 CFR 35.161(a), however, Sec. 42.511(e)(1) eliminates a specific reference to TTYs. The Department has become aware that individuals with hearing and speech disabilities are increasingly using other forms of telecommunication systems, including cellular phones, videophones, video relays, and internet- based communication systems, in lieu of TTYs. Thus, Sec. 42.511(e)(1) provides that ``[w]here a recipient communicates by telephone with applicants, participants, beneficiaries, members of the public, and companions with disabilities, the recipient shall communicate with individuals who are deaf or hard of hearing or have speech disabilities using telecommunication systems that provide equally effective communication.'' Additionally, the Department is aware that individuals with disabilities are concerned that, in some cases, emergency response services lack the ability to communicate with individuals who use methods of communication other than TTYs, such as text messaging or videophones, to communicate effectively. In July 2010, the Department issued an Advance Notice of Proposed Rulemaking on the Accessibility of Next Generation 9-1-1 Services, in which the Department made clear its intention to modify title II's telephone emergency services provision, at 28 CFR 35.162, to address these and other changes, and included a specific reference to video relay service as an example of a type of relay service. 75 FR 43446 (July 26, 2010). Although that regulation has not yet been released, the Department maintains that, under title II's general requirement at 28 CFR 35.161(a), [[Page 6396]] emergency response public safety answering points always have been covered by the general obligation to ensure effective communication. Similarly, under section 504, recipients' provision of emergency response services, like other aid, benefits, or services provided by recipients in their programs or activities, is covered by the overarching obligation to provide effective communication. Proposed Sec. 42.511(e)(2) addresses the use of automated- attendant systems and specifies that ``[w]hen a recipient uses an automated-attendant system, including, but not limited to, voice mail and messaging, or an interactive voice response system, for receiving and directing incoming telephone calls, that system must provide effective real-time communication with individuals using auxiliary aids and services, including, but not limited to TTYs and all forms of FCC- approved telecommunications relay systems, including Internet-based relay systems.'' In proposed Sec. 42.511(e)(3), the Department proposes a requirement that recipients must respond to all types of relay services, including video relay services, in the same manner that they respond to other telephone calls. This provision tracks title II, at 28 CFR 35.161(c), but includes an updated reference to the U.S. Code citation establishing the types of FCC-approved relay services, which include telephone relay, video relay, and IP relay. Section 42.511(f)--Limitations Finally, the Department is proposing to remove a limitation that currently appears in Sec. 42.503(f). This provision directs that the obligation to provide auxiliary aids is mandatory for recipients with 15 or more employees, but indicates that Departmental officials may require recipients employing fewer than 15 persons to comply with this requirement ``when [compliance] would not significantly impair the ability of the recipient to provide its benefits or services.'' The Department is proposing to remove this limitation for several reasons. First, this limitation is of minimal consequence because the vast majority of recipients of Federal financial assistance from the Department are already required by either title II or title III of the ADA to provide auxiliary aids or services in order to ensure effective communication. Second, all recipients, regardless of size, are not required, in providing effective communication, to take any action that the recipient can demonstrate would result in a fundamental alteration to the program or activity or pose undue financial and administrative burdens. Third, the Department already has the discretion whether to impose these obligations on recipients with fewer than 15 employees. Finally, given that Congress specifically intended that the principles of the ADA guide the policies, practices, and procedures developed under the Rehabilitation Act,\9\ the Department believes the removal of this limitation better serves the purpose shared by both the ADA and Rehabilitation Act to enable individuals with disabilities to ``enjoy full inclusion and integration into the economic, political, social, cultural, and educational mainstream of American society.'' 29 U.S.C. 701(a)(3). The Department is interested in public comment about its proposal to eliminate the fifteen employee threshold for provision of auxiliary aids and services. --------------------------------------------------------------------------- \9\ See S. Rep. 102-357 at 14 (Aug. 3, 1992); H.R. Rep. 102-822 at 82 (Aug. 10, 1992). --------------------------------------------------------------------------- Section 42.512--Employment The Department maintains the prohibition of discrimination in employment against any qualified individual with a disability and proposes to revise Sec. 42.512 to conform to the 1992 Amendments, which amended title V of the Rehabilitation Act to apply the same employment standards set forth in title I of the ADA to employment discrimination claims under section 504. Accordingly, the proposed rule deletes the existing requirements related to discriminatory employment practices and references the standards applied under title I of the ADA, 42 U.S.C. 12111 et seq., the EEOC's title I regulation at 29 CFR part 1630, and, to the extent such sections relate to employment, the provisions of sections 501 through 504 and 511 of the ADA, as amended. Note that the Department's regulation at 28 CFR part 37 continues to govern the procedures to be followed by the Federal agencies responsible for processing and resolving complaints or charges of employment discrimination filed against recipients when jurisdiction exists under both section 504 and title I of the ADA. Section 42.513--Direct Threat The Department proposes to add a new provision at Sec. 42.513 addressing direct threat to others as a limitation on the requirement to comply with this subpart, in accordance with the ADA. The applicability of the ``direct threat'' concept to section 504 of the Rehabilitation Act was first set forth in the Supreme Court decision School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987). In Arline, the Supreme Court directed that under section 504 of the Rehabilitation Act, the determination of whether a person with a contagious disease is otherwise qualified must be made on an individualized basis, taking into account the: nature of the risk to others (how the disease is transmitted); duration of the risk to others (how long the carrier is infectious); severity of the risk to others (what the potential harm is to third parties); and probability the disease will be transmitted and will cause varying degrees of harm to others. The Court made it clear that the individualized inquiry required appropriate findings of fact about these factors, based on reasonable medical judgments given the current state of medical knowledge. While Arline arose out of allegations that an individual was not ``otherwise qualified'' under section 504 because she had a ``contagious disease'' that arguably posed a danger to the health and safety of others, the individualized inquiry and the specific analysis required by Arline apply to any exclusion on the basis of an allegation that a person with a disability poses a ``direct threat'' to the health or safety of others, including outside the communicable disease context. See, e.g., EEOC v. Amego, Inc., 110 F.3d 135, n.6 (1st Cir. 1997) (``While the language of the `direct threat' provision is not limited to instances where the threat comes from communicable diseases, the provision originated in the communicable disease context.'' (citing H.R. Rep. No. 101-485 (II), at 76, 1990 U.S.C.C.A.N. at 358-59)). Congress turned to Arline as the foundation for incorporating the ``direct threat'' concept into the ADA. See H.R. Rep. No. 101-485 (III), at 45; 42 U.S.C 12111(3). The House Report stated: ``While the Arline case involved a contagious disease, * * * the reasoning in that case is applicable to other circumstances. A person with a disability must not be excluded, or found to be unqualified, based on stereotypes or fear.'' Id. Congress conceived of the ``direct threat'' concept arising in the context of a challenge to an individual's qualifications, or standing alone as a basis for exclusion. The Department's 1991 section-by-section analysis for the title II regulation indicated that the incorporation of the Arline ``direct threat'' concept and analysis was essential, ``if the law is to achieve its goal of protecting disabled individuals from discrimination based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to legitimate concerns, such as the need to avoid exposing others to significant health and safety risks.'' 28 CFR part 35, [[Page 6397]] app. B. The ADA regulatory language for titles II and III addresses determinations of ``direct threat[s]'' at 28 CFR 35.104, 36.104 (definitions) and at 28 CFR 35.139, 36.208 in a substantially similar manner. The title II and III regulations define ``direct threat'' as ``a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services * * *.'' 28 CFR 35.104, 36.104. Consistent with Arline, the regulations set forth evaluative criteria directing that determinations as to whether an individual's disability constitutes a direct threat to others must be based on individualized findings of fact that take into account the nature, duration, and severity of the risk to others, the likelihood that injury might occur, and whether reasonable accommodations could mitigate the risk to others. Accordingly, the Department is proposing to revise its section 504 regulation to include language addressing a ``direct threat'' that will be consistent with the standards articulated in Arline and the language in the Department's ADA title II and III regulations. Additionally, the Department proposes to include a new paragraph at proposed Sec. 42.513(c) that addresses ``direct threat'' in the employment discrimination context. As provided in the definitions section, the applicable definition of ``direct threat'' in the employment discrimination context includes significant risk of substantial harm to self. The Department is therefore proposing to include a paragraph that provides that an employer does not have to employ an individual who would pose a ``direct threat'' as that term is defined in the EEOC's regulation implementing title I of the ADA at 29 CFR 1630.2(r) and 1630.15(b). Section 42.514--Illegal Use of Drugs The ADA amended the Rehabilitation Act to exclude individuals engaging in illegal drug use from coverage of section 504. See ADA, sec. 512 (codified at 29 U.S.C. 705(10)). The Department proposes to include a new provision at Sec. 42.514 that reflects this requirement and uses the same language that is set forth in the comparable provision in the regulation implementing title II of the ADA at 28 CFR 35.131. Section 42.515--Claims of No Disability In Sec. 42.515, the Department proposes to add a new provision stating that ``[n]othing in this subpart shall provide the basis for a claim that an individual without a disability was subject to discrimination because of a lack of disability, including a claim that an individual with a disability was granted a reasonable accommodation that was denied to an individual without a disability.'' This provision is consistent with a recent amendment to title V of the ADA by section 6 of the ADA Amendments Act. See ADA Amendments Act, sec. 6 (codified at 42 U.S.C. 12201(g)). While Congress did not expressly apply this provision to section 504 at that time, the Department believes that in order to maintain appropriate consistency between title II of the ADA and section 504, this principle should be equally applicable to the Department's regulatory provisions for federally assisted programs and activities. Program Accessibility Section 42.521--Existing Facilities Section 42.521 addresses the obligations of recipients to operate each program or activity subject to this subpart so that when viewed in its entirety, the program or activity is readily accessible to and usable by individuals with disabilities. This obligation, which applies to existing facilities, is generally known as ``program accessibility.'' The comparable obligation is found in the ADA title II regulation at 28 CFR 35.150. The Department is proposing to make non- substantive changes to certain provisions in Sec. 42.521 in order to conform them to the corresponding language in the title II regulation, including adding a specific provision at Sec. 42.521(b)(3) to address how a historic preservation program shall achieve program accessibility where structural changes would threaten or destroy the historically significant features of a historic property. Aligning the section 504 provision addressing historic preservation programs with the title II provision will ensure that recipients subject to both the ADA and section 504 may follow the same rules with respect to historic preservation. In conforming the language of Sec. 42.521 to the corresponding title II provision, the Department is also proposing to add an affirmative statement to the regulation at Sec. 42.521(a)(2) making it clear that the longstanding limitations of undue financial and administrative burden and fundamental alteration apply to the obligation to provide program accessibility. See Alexander v. Choate, 469 U.S. 287 (1985); Se. Cmty. Coll. v. Davis, 442 U.S. 397 (1979). The Department is also proposing several other revisions to Sec. 42.521. In Sec. 42.521(b)(1), the Department is proposing to update the references to the accessibility standards that apply to structural changes to buildings and facilities made for the purposes of providing program accessibility so that the section references the 2010 ADA Standards for Accessible Design (2010 Standards), which the Department is proposing to adopt in Sec. 42.522 below. The Department's proposed adoption of the 2010 Standards as the standard under section 504 for new construction and alterations raises the question of whether recipients will have to update elements in buildings or facilities currently compliant with the Uniform Federal Accessibility Standards (UFAS) that are not otherwise being altered, in order to comply with the 2010 Standards. In order to provide certainty to recipients and individuals with disabilities alike, the Department is proposing to add a safe harbor provision at Sec. 42.521(b)(2), which specifies that ``elements that have not been altered in existing facilities on or after [INSERT EFFECTIVE DATE OF THE RULE], and that comply with the corresponding technical and scoping specifications for those elements in the Uniform Federal Accessibility Standards (UFAS), * * * are not required to be modified to be brought into compliance with the requirements set forth in the 2010 Standards.'' This provision is similar to the safe harbor provision in the Department's ADA title II regulation at 28 CFR 35.150(b)(2)(i). Section 42.521(c)--Small Providers The Department's current regulation at Sec. 42.521(c) provides that ``[i]f a recipient with fewer than fifteen employees finds, after consultation with [an individual with a disability] seeking its services, that there is no method of complying with Sec. 42.521(a) other than making a significant alteration in its existing facilities, the recipient may, as an alternative, refer the [individual with a disability] to other available providers of those services that are accessible.'' When the Civil Rights Restoration Act (CRRA) took effect in 1988, it amended section 504 to provide that small providers are not required ``to make significant structural alterations to their existing facilities for the purpose of assuring program accessibility, if alternative means of providing the services are available. The terms used in this subsection shall be construed with reference to the regulations existing on the date of the enactment of this subsection.'' See Public Law 100-259, sec. 4 (Mar. 22, 1988), codified at 29 U.S.C. 794(c). The legislative history of the CRRA referenced, and explicitly [[Page 6398]] affirmed, provisions similar to the proposed Sec. 42.521(c) that existed in certain Federal agency section 504 regulations on March 22, 1988, including those from the U.S. Department of Agriculture (USDA) and the U.S. Department of Veterans Affairs (VA). See S. Rep. No. 100- 64(I) at 23-24 (June 5, 1987). The USDA's section 504 regulation provided (and continue to provide) that a recipient who is a small provider may, as an alternative, refer an individual with a disability ``to other providers of those services that are accessible at no additional cost'' to the individual with a disability. 7 CFR 15b.18(c). The VA's section 504 regulation provided (and continue to provide) that ``[w]here referrals [by small providers] are necessary, transportation costs shall not exceed costs to and from recipients' programs or activities.'' 38 CFR 18.422(c). The legislative history also set forth expectations about small providers' obligations to individuals with disabilities when making their facilities accessible would involve a significant structural alteration. The legislative history cited to the Department of Health and Human Services' (HHS) regulation, noting that under the regulation, small providers may exercise the exception only after determining ``that the other provider's program is, in fact, accessible and that the other provider is willing to provide the services.'' S. Rep. No. 100-64 (I), at 23-24 (citing to HHS rule at 45 CFR 84.22(c)); see 42 FR 22676, 22689 (May 4, 1977). The legislative history further observed that under the regulation, prior to making any referral, the small providers must ensure that there are ``no resulting additional obligations to the [individual with a disability].'' S. Rep. No. 100-64 (I), at 23; see 42 FR 22676, 22689 (May 4, 1977). Referencing the HHS, VA, and USDA regulations, the legislative history affirmed that the new statutory ``subsection makes it clear that the special rules now contained in the above described regulations are now specifically statutorily authorized.'' S. Rep. No. 100-64 (I), at 24. The Department is proposing to revise its small provider provision to reflect Congress's intent when it revised section 504. Accordingly, the Department proposes to revise Sec. 42.521(c) to provide that a recipient with fewer than 15 employees who finds, after consultation with an individual with a disability seeking its services, that there is no method of complying with Sec. 42.521(a) other than making a significant alteration to its existing facilities, may, as an alternative, refer the individual with a disability to alternative providers of available accessible services. The proposed revision further provides that for these purposes, in order to ensure that the services are available, the small provider ``must first determine that the alternative provider's services are accessible, the alternative provider is willing to provide the services, the services are available at no additional cost to the individual with a disability, and transportation costs to and from the alternative provider do not exceed costs to and from the small provider.'' As with all providers subject to section 504, if the cost of making structural changes as a means of providing program accessibility in existing facilities is an undue financial and administrative burden, then the small provider is not obligated to make those changes. The Department notes that in the vast majority of cases, small providers are also subject either to the program accessibility requirements of title II of the ADA or the barrier removal obligation of title III of the ADA. Section 42.521(d)--Written Plan Required for Certain Recipients To Achieve Program Accessibility The Department is proposing to revise Sec. 42.521(d) to clarify that this provision only refers to those circumstances where a written plan was originally required for recipients subject to the rule when it first took effect. The Department is proposing to replace all references in this section that set compliance dates for specific requirements in relation to the ``effective date of this subpart'' with references to the actual dates when compliance was required. These changes will maintain continuity of regulatory requirements by clarifying that the original effective date of the subpart (and other deadlines based on this original effective date), and not the date these proposed amendments take effect, is the operative date for compliance with this section of the regulation. Section 42.521(e)--Notice of Location of Accessible Facilities Under Sec. 42.521(e) of the Department's current regulation, the recipient is required to adopt and implement procedures to ensure that interested persons, including persons with various types of disabilities, can obtain information as to the existence and location of accessible services, activities, and facilities. The Department proposes to make a non-substantive revision to the provision on notice of location of accessible facilities (renumbered as Sec. 42.521(e)(1)) to reflect updated terminology describing certain disabilities. Proposed Sec. 42.521(e)(2) clarifies the obligation to provide notice by adding language consistent with the existing title II obligation at 28 CFR 35.163(b) requiring signs at a primary entrance to each of the recipient's inaccessible facilities, if any, directing users to an accessible facility or a location where they can obtain information about accessible facilities. Section 42.522--Program Accessibility in Jails, Detention and Correctional Facilities, and Community Correctional Facilities The Department is proposing to add a new section entitled ``Program accessibility in jails, detention and correctional facilities, and community correctional facilities.'' This section, which is modeled after the Department's title II regulation at 28 CFR 35.152, provides additional guidance about the specific application of section 504's general requirements to these facilities operated by or on behalf of recipients of Federal financial assistance from the Department. While all of the jails, detention and correctional facilities, and community correctional facilities funded by the Department are also public entities subject to the title II requirements, because the Department provides assistance to so many of the agencies that operate these facilities, it believes it will be helpful to recipients to understand that the same requirements apply under both statutes. The Department has added some language that clarifies that the requirements in this section are in addition to the general requirements of this subpart and intends that this section be interpreted consistent with 28 CFR 35.152. Section 42.523--New Construction and Alterations Section 42.523(a) and (b)--Design and Construction; Alteration Section 42.522(a) of the Department's current regulation requires that, if construction of a recipient's facility commenced after the effective date of the regulation, the facility must be designed and constructed so that it is readily accessible to and usable by individuals with disabilities. In proposed Sec. 42.523(a), the Department proposes to replace the reference to the ``effective date of this subpart'' with ``July 3, 1980,'' which was the date the Department's original section 504 regulation took effect. This will maintain continuity of regulatory [[Page 6399]] requirements by clarifying that the original effective date of the subpart, and not the date these proposed amendments take effect, is the operative date for compliance with this section of the regulation. Section 42.522(a) of the Department's existing regulation also requires that facility alterations commenced after the effective date of the regulation that affect or may affect the facility's usability must be carried out so that, to the maximum extent feasible, the altered portion of the facility is readily accessible to and usable by individuals with disabilities. The Department proposes to separate this requirement into its own paragraph at proposed Sec. 42.523(b) and to update its phrasing for clarity. For the same purposes as the new construction paragraph above, the Department proposes to replace the reference to the ``effective date of this subpart'' with ``July 3, 1980.'' Section 42.523(c)(1)--Adoption of Updated Accessibility Standards The Department proposes to revise Sec. 42.523 to adopt the 2010 Standards for new construction and alterations in lieu of the Uniform Federal Accessibility Standards (UFAS).\10\ Section 42.522 of the Department's current regulation provides that any new construction or structural alterations made by recipients must be made in compliance with UFAS, 49 FR 31528, app. A (Aug. 7, 1984). UFAS was adopted in 1991 as the applicable accessibility standard for section 504 as part of a joint rulemaking with several other agencies, moderated by the Department pursuant to its coordinating authority for section 504 under Executive Order 12250. The Department and participating agencies adopted UFAS to diminish the possibility that some recipients of Federal financial assistance would face conflicting enforcement standards either between section 504 and the Architectural Barriers Act of 1968 (which applies to all buildings and facilities built, altered, or leased with Federal dollars), or among the section 504 regulations of different Federal agencies. 55 FR 52136, 52136-37 (1990). The Department adopted the 2010 Standards for all new construction and alterations commenced on or after March 15, 2012, for entities subject to titles II or III of the ADA. 75 FR 56164, 56182 (Sept. 15, 2010). Until that time, both UFAS and the 1991 ADA Standards for Accessible Design were options for compliance with title II. --------------------------------------------------------------------------- \10\ In the preamble to the revised final title II regulation that adopted the 2010 Standards as new ADA accessibility standards, the Department stated that Federal agencies that extend Federal financial assistance should revise their section 504 regulations to adopt the 2010 Standards as updated standards for new construction and alterations that supersede UFAS. 75 FR 56164, 56213 (Sept. 15, 2010). The Department also stated its intent to work with Federal agencies to revise their section 504 regulations in the near future to adopt the 2010 Standards as the appropriate accessibility standard for their recipients. --------------------------------------------------------------------------- The Department's proposed Sec. 42.523(c)(1) would require that recipients comply with the 2010 Standards beginning one year from the publication date of the final rule. In addition, the Department recognizes that many but not all of its recipients are also subject to the ADA and are already required to comply with the 2010 Standards. In order to minimize the timeframe during which recipients subject to section 504 and the ADA must comply with two separate accessibility standards, the Department proposes that beginning with the publication of the final rule in the Federal Register and until the 2010 Standards take effect under section 504, recipients will have the choice of complying with either UFAS or the 2010 Standards.\11\ Regardless of which accessibility standard recipients choose to use during this time period, recipients must consistently rely on one accessibility standard and may not designate one accessibility standard for one part of a facility and the other for the remainder. --------------------------------------------------------------------------- \11\ This choice is in keeping with the Department's March 2011 memorandum advising Federal agencies that until such time as they update their agency's regulation implementing the federally assisted provisions of section 504, they may notify covered entities that they may use the 2010 Standards as an acceptable alternative to UFAS. Memorandum from Thomas E. Perez on Permitting Entities Covered by the Federally Assisted Provisions of Section 504 of the Rehabilitation Act to Use the 2010 ADA Standards for Accessible Design as an Alternative Accessibility Standard for New Construction and Alterations (Mar. 29, 2011), www.ada.gov/504_memo_standards.htm (last visited Mar. 10, 2016). --------------------------------------------------------------------------- While in some circumstances the ADA imposes different obligations on public entities as compared to private entities, section 504 does not differentiate between public and private recipients of Federal financial assistance. Accordingly, neither the Department's section 504 regulation nor UFAS imposes different scoping and technical accessibility requirements on recipients based upon their status as public or private entities. Although in nearly all circumstances the requirements in the 2010 Standards for buildings and facilities subject to either title II or title III of the ADA are the same, there are several instances where the requirements differ. Most significantly, Exception 1 of section 206.2.3 of the 2010 Standards exempts certain multistory buildings owned by private entities from the requirement to provide an elevator to facilitate an accessible route throughout the building. This exemption does not apply to buildings owned by public entities.\12\ Section 217.4.3 of the 2010 Standards also specifies TTY requirements for public buildings that are different than those required for private buildings. In order to maintain the required consistency in the accessibility requirements applicable to all its recipients, regardless of whether they are public or private entities, the Department proposes to require all buildings and facilities subject to its section 504 federally assisted regulation to comply with the 2010 Standards' scoping and technical requirements for a ``public building or facility,'' which are the requirements for buildings subject to title II of the ADA. --------------------------------------------------------------------------- \12\ The Department also notes that the current accessibility standard, UFAS, has no elevator exemption for private entities. Therefore, requiring private entities that are subject to both title III of the ADA and section 504 to comply with the requirements for public buildings and facilities in the 2010 Standards imposes no new burdens on those entities. --------------------------------------------------------------------------- UFAS and the 2010 Standards also have differing requirements for employee work areas.\13\ Sections 4.1.2(17) and 4.1.4(4-13) of UFAS require that most employee work areas be accessible where those areas would result in the employment of individuals with disabilities, and that 5% of all work stations in an employee work area be accessible. Sections 203.9 and 207.1 of the 2010 Standards require only that work areas be designed for approach, entry, and exit by individuals with disabilities. Subject to certain exceptions, section 206.2.8 of the 2010 Standards requires common use circulation paths in employee work areas to be accessible to allow individuals with disabilities to move within the space. As the Department previously noted in its ``Analysis and Commentary on the 2010 Standards for Accessible Design,'' the 2010 Standards' approach to work areas provides access for individuals with disabilities to approach, enter, and exit work areas such that reasonable accommodations to those work areas can then be made as required by the ADA and section 42.511 of the Department's current regulation. 28 CFR part 36, app. B, https://www.ada.gov/regs2010/titleIII_2010/reg3_2010_appendix_b.htm. The [[Page 6400]] Department expects that maintaining consistent application of the 2010 Standards will streamline compliance for many recipients, particularly those that are subject to titles II or III of the ADA. --------------------------------------------------------------------------- \13\ In addition, section 4.1.2(13) of UFAS requires visual alarms where warning systems are provided. Section 215.3 of the 2010 Standards require that audible alarms in employee work areas have wiring such that visual alarms can be integrated into the alarm system. --------------------------------------------------------------------------- In addition, the Department's current section 504 federally assisted regulation at Sec. 42.522(b) allows departures from the requirements of UFAS if the other methods used provide ``substantially equivalent or greater access to and usability of the building.'' This concept of departure from the accessibility standards is retained in this regulation (renumbered as Sec. 42.523(c)(1)(v)), but the phrasing is adjusted for consistency with the title II regulation. Lastly, the Department notes that a recipient that receives funding from multiple Federal agencies must ensure that it is compliant with the accessibility standards of each agency from which it receives Federal funding. Section 42.523(c)(2) and (3)--Triggering Events for Compliance With the Applicable Accessibility Standards As discussed above, the Department is proposing that all recipients must comply with the 2010 Standards in lieu of UFAS one year from the publication date of the final rule in the Federal Register. In recognition of the fact that buildings and facilities may be in the planning, design, or construction phases for a number of years, the Department is proposing to specify ``triggering events'' that would determine which buildings and facilities must comply as of the compliance date. The Department is proposing, however, to use different ``triggering events'' for application of the 2010 Standards to new construction and alterations for ``public entities'' that receive financial assistance from the Department as compared to ``private entities'' that receive such assistance. These two different categories of ``triggering events'' are based upon the ``triggering events'' specified in the Department's title II and title III rules at 28 CFR 35.151(c) and 28 CFR 36.406(a), respectively. The Department expects that maintaining consistency with the ADA requirements in this regard will simplify application of the 2010 Standards for recipients already subject to either title II or title III. Thus, the Department is proposing that recipients that are private entities may choose either UFAS or the 2010 Standards when one of the following events has occurred on or after the date of publication of the final rule in the Federal Register but before the compliance date for the 2010 Standards: (1) The last application for a building permit or permit extension is certified to be complete by a State, county, or local government; (2) in those jurisdictions where the government does not certify completion of applications, the last application for a building permit or permit extension is received by the State, county, or local government; or (3) if no permit is required, the commencement of physical construction or alterations. Similarly, the Department is proposing that recipients that are private entities must comply with the 2010 Standards as of one year from publication of this rule in the Federal Register when one of the following events has occurred on or after one year from the date of publication of the final rule in the Federal Register: (1) The last application for a building permit or permit extension is certified to be complete by a State, county, or local government; (2) in those jurisdictions where the government does not certify completion of applications, the last application for a building permit or permit extension is received by the State, county, or local government; or (3) if no permit is required, the commencement of physical construction or alterations. For public entities receiving Federal financial assistance from the Department, the Department is proposing to use the commencement of physical construction or alterations on or after the publication date of the final rule but before the required compliance date of the 2010 Standards as the ``triggering event'' for the choice of standards permitted by Sec. 42.523(c)(1). Similarly, the Department is proposing to use the commencement of physical construction or alterations on or after one year from publication of the final rule in the Federal Register as the ``triggering event'' for the requirement to comply with the 2010 Standards. This is consistent with the approach the Department took for compliance with the 2010 Standards under title II of the ADA. The Department is proposing at Sec. 42.523(c)(3) to add a provision similar to the language in the ADA regulations at 28 CFR 35.151(c)(4) in title II and 28 CFR 36.406(a)(4) in title III that states that ``ceremonial groundbreaking or razing of structures prior to site preparation will not be considered to commence or start physical construction or alterations.'' 42.523(c)(4)--Compliance With the Architectural Barriers Act of 1968 Facilities designed, built, altered, or leased with Federal funds are subject to the requirements of the Architectural Barriers Act of 1968, as amended, 42 U.S.C. 4151-57 (ABA). Facilities that receive Federal financial assistance from the Department are required to comply with the ABA accessibility standards adopted by the General Services Administration (GSA), which is the Federal agency responsible for adopting ABA standards for all buildings subject to the ABA except for residential structures; buildings, structures, and facilities of the Department of Defense (DOD); and buildings, structures and facilities of the U.S. Postal Service (USPS).\14\ The U.S. Access Board is the enforcing authority with respect to complaints under the ABA. --------------------------------------------------------------------------- \14\ The U.S. Access Board is charged with promulgating accessibility guidelines that form the basis of the ABA standards adopted by GSA, Department of Housing and Urban Development (HUD), DOD, and USPS. See 42 U.S.C. 4151 et seq. On July 23, 2004, the Access Board published its final revised ABA Accessibility Guidelines (2004 ABAAS). See 69 FR 44084. In 2005, GSA adopted the 2004 ABAAS as the enforceable standard for Federal facilities under its jurisdiction. See 41 CFR 102-76.65. --------------------------------------------------------------------------- Many, but not all, buildings and facilities used by recipients for their programs or activities are also covered by the ABA. Until recently, UFAS served as the applicable accessibility standard under both section 504 federally assisted regulations and the ABA, and, therefore, facilities that complied with UFAS were also in compliance with the ABA. While there is significant overlap between the current ABA standards and the 2010 Standards, there are a number of differences. Recipients subject to both statutes need to be aware of the requirements of both accessibility standards and need to comply with both. Thus, the Department is proposing at Sec. 42.523(c)(4) to add a provision reminding recipients that ``[n]othing in this section relieves recipients whose facilities are covered by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), from their responsibility of complying with the requirements of that Act and any implementing regulations.'' Procedures Section 42.530--Administrative Procedures for Recipients Certain provisions of Sec. 42.505 of the existing regulation (renumbered as Sec. 42.530) impose administrative requirements related to the designation of a responsible employee for compliance with this subpart (Sec. 42.505(d) of the current regulation), adoption of grievance procedures (Sec. 42.505(e) of the current regulation), and provision of notice of nondiscrimination (Sec. 42.505(f) of the [[Page 6401]] current regulation). The existing regulatory provisions apply these specific requirements automatically to all recipients: Employing 50 or more persons; and receiving Federal financial assistance from the Department of $25,000 or more (in the case of the designated employee and grievance procedures) or more than $25,000 (in the case of the provision of notice). However, the existing regulatory provisions also give the Department discretion whether to apply these requirements to ``any recipient with fewer than fifty employees and receiving less than $25,000'' in financial assistance from the Department. See Sec. 42.505(g). The Department is seeking public comment on whether it should revise paragraphs 42.505(d), (e) and (f) of the existing regulation (renumbered as 42.530(c), (d) and (e)), to delete any references to size of grant award, so that the number of employees (50 or more) is the only criteria triggering the application of the administrative requirements in these three paragraphs. State and local governments already are subject to comparable requirements under title II of the ADA. See 28 CFR 35.104, 35.105. The Department is interested in public comment on how many recipients with 50 or more employees receive grants from the Department of less than $25,000 and thus, would be affected if the Department were to revise the rule in this manner. The Department is also interested in public comment on whether it should change or eliminate the number of employees or the grant amount that triggers these requirements, what the new threshold number of employees or grant amount should be to trigger the obligation to meet these requirements, the number of affected recipients if the Department makes this change, and the costs related to making this change. Section 42.530(b)--Self-Evaluation The Department is maintaining the provision requiring recipients to conduct a self-evaluation as a historical requirement but is revising it to refer to the requirements in the past tense. The Department's current regulation at Sec. 42.505(c) requires in part that a recipient, ``within one year of the effective date of this subpart, evaluate and modify its policies and practices that do not meet the requirements of this subpart.'' The Department is proposing to make a non-substantive revision to Sec. 42.530(b) of this paragraph by replacing the phrase ``within one year of the effective date of this subpart,'' with the actual date that was a year from when the subpart originally took effect, which is ``July 3, 1981.'' While this provision does not require recipients to conduct a self-evaluation beyond the original deadline of July 3, 1981, the Department is retaining this provision because the self-evaluation requirement under section 504 is cross-referenced in the Department's ADA title II regulation at 28 CFR 35.105(d). Section 42.530(d)--Adoption of Grievance Procedures Section 42.505(e) of the current regulation requires recipients to adopt grievance procedures. The Department proposes to make a non- substantive change to this provision (renumbered as Sec. 42.530(d)) to clarify that the procedures adopted by the recipient must incorporate appropriate due process standards. The Department also proposes to revise this paragraph to clarify that any individual may file a complaint with the Department without having first used the recipient's grievance procedures. Section 42.530(e)--Notice Section 42.505(f) of the current regulation requires a recipient that employs 50 or more persons and that receives Federal financial assistance from the Department of more than $25,000 to take appropriate initial and continuing steps to notify participants, beneficiaries, applicants, employees, and unions or professional organizations holding collective bargaining or professional agreements with the recipient that it does not discriminate on the basis of disability in violation of section 504 and this subpart. This provision also delineates the methods of initial and continuing notification to include ``the posting of notices, publication in newspapers and magazines, placement of notices in recipients' publication, and distribution of memoranda or other written communications.'' The proposed regulation maintains the requirement that the notice shall state that the recipient does not discriminate in its programs or activities with respect to access, treatment, or employment and shall include the identification of the person responsible for coordinating compliance with this subpart and where to file section 504 complaints with the Department and, where applicable, with the recipient. The Department encourages recipients to consider including in their notice information relating to the availability of auxiliary aids and services, procedures for obtaining such aids and services, contact information for the responsible employee, and the availability of grievance procedures. The Department recognizes that the methods by which a recipient communicates with interested persons have changed significantly since this regulation was promulgated and that this regulation, as currently written, does not reflect the current and future state of information dissemination. With the growth of the Internet and the World Wide Web, the Department has determined that the regulation should also reference postings on a recipient's Web site as a permissible method of communication and is proposing to include ``publications on the recipient's internet Web site'' as a method of initial and continuing notification in the regulation (renumbered as Sec. 42.530(e)(1)). Many of the publications that previously were available in print such as pamphlets, brochures, maps, course catalogs, policies, and procedures are now posted on recipients' Web sites and can be printed or downloaded by an interested person viewing the Web site. The Department has deleted the reference in this section to the initial notification deadline because the requirement to provide notice is a continuing obligation and the initial notification deadline has long passed. Section 42.530(f) The Department is proposing to remove the reference to paragraph (c)(2) in the current Sec. 42.505(g) (renumbered as Sec. 42.530(f)), which addresses self-evaluation as a potential requirement for recipients with fewer than 50 employees. The self-evaluation provision at paragraph (c)(2) (renumbered as paragraph (b)(2) in this section) is a historical requirement and does not apply to current or future recipients. Section 42.531--Assurances Required Section 42.531(a)--Assurances Required The Department is proposing to revise its provisions on assurances from government agencies at current Sec. 42.504(b) and assurances from institutions at current Sec. 42.504(c) to align these provisions with the definition of ``program or activity'' that was adopted by the Department in 2003 as a result of the Civil Rights Restoration Act and Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999). See 68 FR 51334, 51364 (Aug. 26, 2003). Before the CRRA, the definition of ``program'' was limited to ``the operations of the agency or organizational unit of government receiving or substantially benefiting from the Federal assistance awarded, [[Page 6402]] e.g., a police department or department of corrections.'' 45 FR 37620, 37626 (June 3, 1980). Therefore, it was necessary, for instance, to clarify that the assurance applied to the entire agency or agency of the same governmental unit if the policies of the other agency would affect the ``program'' (as defined at that time) for which Federal financial assistance was requested. However, it is no longer necessary to include that clarification, given that the definition of ``program or activity'' that was adopted in 2003 encompasses ``all of the operations of the entity of a State or local governmental agency or department that distributes the federal assistance to another State or local governmental agency or department and all of the operations of the State or local governmental entity to which the financial assistance is extended.'' See 68 FR 51334, 51336, 51364 (Aug. 26, 2003). Additionally, the definition of ``program or activity'' adopted in 2003 also includes educational institutions, corporations and other private organization, and plants. The Department is proposing to revise current Sec. 42.504(c) to ensure that the applicability of the nondiscrimination requirements is also addressed with respect to these entities consistent with the definition of ``program or activity.'' Section 42.531(b)--Duration of Obligation The Department's current section 504 federally assisted regulation at Sec. 42.504(d) provides that ``[w]here the Federal financial assistance is to provide or is in the form of real or personal property, the assurance will obligate the recipient and any transferee for the period during which the property is being used for the purpose for which the Federal financial assistance is extended or for another purpose involving the provisions of similar benefits, or for as long as the recipient retains ownership or possession of the property, whichever is longer. In all other cases the assurance will obligate the recipient for the period during which Federal financial assistance is extended.'' The Department proposes several clarifications to the duration of obligation requirement. First, the Department proposes to have the assurance apply to improvements provided by Federal financial aid and assistance, in addition to real or personal property. Second, the Department proposes to reference the provision of federally assisted services, in addition to benefits, as a determinant of the duration of assurance obligations. Finally, the Department proposes to replace the reference ``[i]n all other cases'' with ``[w]hen the Federal financial assistance is not in the form of real or personal property or improvements'' to clarify the particular circumstances under which the assurance continues to apply to the recipient during the period for which Federal financial assistance is extended. Section 42.532--Compliance and Enforcement Procedures The Department is maintaining the compliance and enforcement procedures provision from Sec. 42.530 of its current regulation and has renumbered it as Sec. 42.532. In an effort to account for future changes in organization and to eliminate obsolete references to some components that no longer exist within the Department, the Department proposes to replace the references to ``LEAA, NIJ, BJS, OJARS, and OJDDP'' with the phrase ``a grant-making component of the Department.'' In addition, the Department is proposing to revise Sec. 42.530(c) which currently provides that ``[i]n the case of programs or activities funded by LEAA, NIJ, BJS, OJARS, and OJJDP, the refusal to provide requested information under paragraph (a) of this section and [28 CFR] 42.106 will be enforced pursuant to the provisions of section 803(a) of title I of the Omnibus Crime Control and Safe Streets Act'' as amended (emphasis added). The Department believes that, in addition to the termination of funds as a remedy under section 803(a) and its successor statute, 42 U.S.C. 3783, the Department should also have the discretion to consider, where appropriate, a more measured response to a recipient's refusal to provide requested information and therefore, should be able to avail itself of ``the remedies, procedures and rights set forth in title VI of the Civil Rights Act of 1964 * * * available to any person aggrieved by any act or failure to act by any recipient of Federal assistance,'' consistent with the Rehabilitation Act. See 29 U.S.C. 794a(a)(2). Accordingly, the Department proposes to revise Sec. 42.530(c) of the existing regulation (renumbered as Sec. 42.532(a)(2)) to read ``[i]n the case of programs or activities funded by a grant- making component of the Department, the refusal to provide access to sources of information pursuant to 28 CFR 42.106(c) may be enforced using the procedures cited in paragraph (a)(i) of this section or using the provisions of section 803(a) of title I of the Omnibus Crime Control and Safe Streets Act'' as amended (emphasis added). The Department proposes to delete paragraphs (d) and (e) of existing Sec. 42.530. Paragraph (d) established a 180-day limitation period from July 3, 1980, to file complaints of acts of discrimination that occurred prior to July 3, 1980. This provision is no longer necessary. Similarly, the Department proposes deleting paragraph (e) because it establishes a procedure for which the statute of limitations has long passed and is thus no longer necessary. The Department also proposes to move its existing provision addressing remedial action from existing Sec. 42.505(a) to proposed Sec. 42.532(c) because the requirement for remedial action arises after a finding of discrimination has been made in accordance with the procedures set forth in this section. The Department believes that the placement of the remedial action provision in the compliance procedures section is a more logical placement than its current location in the administrative requirements section. The Department also proposes making non-substantive edits to the existing language. Lastly, the Department proposes to add a new paragraph at proposed Sec. 42.532(d) that directs complaints alleging violations of section 504 by recipients of financial assistance from the Department to be filed with the Office of Justice Programs. The Office of Justice Programs is the entity within the Department that enforces section 504. III. Regulatory Analysis A. Executive Order 13563 and 12866--Regulatory Planning and Review This NPRM has been drafted in accordance with Executive Order 13563 of January 18, 2011, 76 FR 3821, Improving Regulation and Regulatory Review, and Executive Order 12866 of September 30, 1993, 58 FR 51735, Regulatory Planning and Review. Executive Order 13563 directs agencies, to the extent permitted by law, to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtaining the regulatory objectives; and, in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits and costs are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts. [[Page 6403]] The Department has determined that this proposed rule is a ``significant regulatory action'' as defined by Executive Order 12866, sec. 3(f). The Department has determined, however, that this proposed rule is not an economically significant regulatory action, as it will not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This NPRM has been reviewed by the Office of Management and Budget (OMB) pursuant to Executive Orders 12866 and 13563. This rule provides necessary revisions to the Department's current section 504 federally assisted regulation to: (1) Incorporate amendments to the statute including the changes in the meaning and interpretation of the applicable definition of disability required by the ADA Amendments Act; (2) incorporate requirements stemming from judicial decisions; (3) update accessibility standards applicable to new construction and alteration of buildings and facilities; (4) update certain provisions to promote consistency with comparable provisions implementing title II of the ADA; and (5) make other non-substantive clarifying edits. The proposed regulation is intended to promote consistency of judicial interpretations and predictability of executive enforcement of section 504 of the Rehabilitation Act, as it pertains to federally assisted programs. This rule does not significantly change any existing substantive obligations of recipients subject to the Department's federally assisted regulation because, with the exception of the updated accessibility standard, the Department is incorporating into its section 504 regulation definitions and requirements arising out of statutory amendments to the Rehabilitation Act and longstanding Supreme Court decisions. Moreover, the Department's adoption of the 2010 Standards as the updated accessibility standard under section 504 will have the effect of simplifying the obligations of its recipients. It should not result in any substantial costs since the vast majority of its recipients are already required to comply with the 2010 Standards because they are either State or local governments covered by title II of the ADA or public accommodations subject to title III of the ADA. The harmonization of the section 504 accessibility requirements with the ADA's requirements will result in recipients being subject to only one accessibility standard (the 2010 Standards) instead of two and could have the effect of reducing costs since recipients will no longer have to be familiar with and apply up to two sets of requirements. Lastly, the conformance of section 504's regulatory provisions with the existing comparable regulatory provisions implementing title II of the ADA will not result in any substantial costs because the requirements under section 504 will remain substantially the same. Title II of the ADA is modeled on section 504 of the Rehabilitation Act of 1973, and Congress intended, through its 1992 Amendments to the Rehabilitation Act, that the principles underlying the ADA also apply to all sections of the Rehabilitation Act, including section 504. As a result, courts have generally treated claims under title II and section 504 the same. Title III of the ADA applies to the activities of all public accommodations (including nonprofit organizations) funded by the Department with the exception of those recipients that fall within the ADA's exemption for ``religious organizations or entities controlled by religious organizations.'' See 42 U.S.C. 12187. Based on the following data from the Department's grant-making components, the Department estimates that: Of the approximately 6395 recipients \15\ directly funded by the Office of Justice Programs (OJP), approximately 34 have self- identified as faith-based organizations and may well qualify for the ADA exemption. --------------------------------------------------------------------------- \15\ This number is based upon OJP's data on active awards as of June 7, 2016. While it is possible that multiple awards may be provided to a single recipient, the Department is assuming a one to one correspondence between award and recipient for purposes of this analysis. The Department has no data on the number of subrecipients funded by OJP, or the number of those subrecipients that may qualify for the ADA religious exemption. --------------------------------------------------------------------------- Of the approximately 1478 recipients \16\ funded by the Community Oriented Policing Services (COPS) Office, 0 have self- identified faith-based organizations. --------------------------------------------------------------------------- \16\ This number is based upon COPS' data on active awards as of June 6, 2016. While it is possible that multiple awards may be provided to a single recipient, the Department is assuming a one to one correspondence between award and recipient for purposes of this analysis --------------------------------------------------------------------------- Of the approximately 1739 discretionary grantees and 2934 discretionary subgrantees \17\ funded by the Office on Violence Against Women (OVW), approximately 84 have self-identified as faith-based organizations and may well qualify for the ADA exemption. --------------------------------------------------------------------------- \17\ This data reflects information that OVW collects from its discretionary grantees in their July-December 2014 semi-annual progress reports and from its subgrantees in their annual 2014 progress reports. --------------------------------------------------------------------------- This data suggests a total of approximately 118 grantees and subgrantees collectively that are self-identified as faith-based organizations. However, because the Department has no data on the number of subrecipients funded by OJP or whether any of them are in fact religious entities, this number may be higher. OJP has previously estimated that there are approximately 100 total faith-based grantees and subgrantees funded by OVW and 50 total faith-based grantees and subgrantees funded by OJP, for a total estimate of 150 grantees and subgrantees from OJP and OVW collectively that are faith-based organizations.\18\ Therefore, we estimate between 118 and 150 total faith-based grantees and subgrantees. --------------------------------------------------------------------------- \18\ This number comes from the Department's proposed rule to amend 28 CFR part 38, titled ``Partnerships with Faith-Based and Other Neighborhood Organizations; Proposed Rule,'' 80 FR 47316, 47322 (Aug. 6, 2015). --------------------------------------------------------------------------- The recipients falling under the ADA's religious exemption could be affected by any incremental changes in the accessibility requirements that result from the change in the applicable standard from UFAS to the 2010 Standards if they engage in new construction or alterations of the facilities serving the program or activity funded by the Department. As discussed in the preamble, however, because of the safe harbor set forth in proposed Sec. 42.521(b)(2), these recipients will not have any obligation to modify any elements in their existing facilities that are compliant with UFAS unless they alter those elements after the compliance date for the Standards takes effect. A subset of these recipients falling under the ADA religious exemption--those with fewer than 15 employees that were previously exempt from the automatic obligation to provide auxiliary aids and services--may be affected by the proposed elimination of the 15 employee threshold for that obligation. Some of these entities may have fewer than 15 employees. Given the small subset of recipients who could potentially be affected and the infinite variations of the type of new construction or alteration that could occur along with the type of auxiliary aid or service that could be provided, it would not be feasible to quantify the impact of these changes on an individual basis. However, the Department believes that generally costs for individual recipients would not likely be significant. [[Page 6404]] The Department is interested in public comment on whether its assumptions are correct as to the following: (1) The number of recipients that fall within the ADA exemption for religious organizations or organizations controlled by religious organizations; (2) how many subrecipients funded by OJP may fall within the ADA religious exemption; 3) how many of these recipients also have fewer than 15 employees and whether this particular provision should have a compliance date later than the general effective date of the rule; and 4) the costs to individual recipients not being significant. The Department believes that the costs of this rule will be significantly less than $100 million in any given year. The Department is interested in public comment on its assumptions that the costs of this rule will be significantly less than $100 million in any given year. B. Regulatory Flexibility Act The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation, and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities. With the exception of the updated accessibility standard, the substantive changes to the section 504 regulation reflect the Department's incorporation of definitions and requirements arising out of statutory amendments to the Rehabilitation Act and longstanding Supreme Court decisions. Moreover, the Department's adoption of the 2010 Standards as the updated accessibility standard under section 504 will have the effect of simplifying the obligations of its recipients and should not result in any additional costs since the vast majority of its recipients are already required to comply with the 2010 Standards because they are either State or local governments covered by title II of the ADA or public accommodations subject to title III of the ADA. The harmonization of the section 504 accessibility requirements with the ADA requirements will result in recipients being subject to only one accessibility standard (the 2010 Standards) instead of two. Additionally, the conformance of section 504's regulatory provisions with existing comparable provisions implementing title II of the ADA will not result in any additional costs for the vast majority of recipients funded by the Department. Lastly, the rule does not include reporting requirements and imposes no new recordkeeping requirements. Even if the Department assumed that all of the recipients that may be subject to the ADA's religious exemption qualify as ``small organizations'' and would be affected by the incremental changes in the accessibility standards and the elimination of the 15-employee threshold for the requirement to provide auxiliary aids and services, the Department believes that the number of small entities affected by this rule, compared to the thousands of recipients funded by the Department's grant-making components does not constitute a ``significant number of small entities'' affected by this rule. The Department is interested in public comment on its assumptions about the impact of the revisions to its section 504 regulation on small entities that receive Federal financial assistance from the Department. C. Executive Order 13132: Federalism Executive Order 13132 directs that, to the extent practicable and permitted by law, an agency shall not promulgate any regulation that has federalism implications, that imposes substantial direct compliance costs on State and local governments, that is not required by statute, or that preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. Because each change proposed by this rule does not have federalism implications as defined in the Executive Order, does not impose direct compliance costs on State and local governments, is required by statute, or does not preempt State law within the meaning of the Executive Order, the Department has concluded that compliance with the requirements of section 6 is not necessary. D. Plain Language Instructions The Department makes every effort to promote clarity and transparency in its rulemaking. In any regulation, there is a tension between drafting language that is simple and straightforward and drafting language that gives full effect to issues of legal interpretation. The Department is proposing a number of changes to this regulation to enhance its clarity and satisfy the plain language requirements, including revising the organizational scheme and adding headings to make it more user-friendly. The Department operates a toll- free ADA Information Line (800) 514-0301 (voice) and (800) 514-0383 (TTY) that the public is welcome to call to obtain assistance in understanding anything in this proposed rule. If any commenter has suggestions for how the regulation could be written more clearly, please provide comments using the contact information provided in the introductory section of this proposed rule entitled, FOR FURTHER INFORMATION CONTACT. E. Paperwork Reduction Act This proposed rule does not contain any new or revised ``collection[s] of information'' as defined by the Paperwork Reduction Act of 1995. 44 U.S.C. 3501 et seq. F. Unfunded Mandates Reform Act Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1503(2), excludes from coverage under that Act any proposed or final Federal regulation that ``establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability.'' Accordingly, this rulemaking is not subject to the provisions of the Unfunded Mandates Reform Act. List of Subjects for 28 CFR Part 42 Administrative practice and procedure, Buildings and facilities, Civil rights, Communications, Grant programs, Individuals with disabilities, Reporting and recordkeeping requirements. By the authority vested in me as Attorney General by law, including 5 U.S.C. 301, 28 U.S.C. 509, 510, 29 U.S.C. 794, Executive Order 12250, part 42 of title 28 of the Code of Federal Regulations is proposed to be amended as follows: PART 42--NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY; POLICIES AND PROCEDURES 0 1. Revise Subpart G to read as follows: Subpart G--Nondiscrimination Based on Disability in Federally Assisted Programs or Activities--Implementation of Section 504 of the Rehabilitation Act of 1973 Sec. General Sec. 42.501 Purpose. Sec. 42.502 Application, broad coverage, and relationship to other laws. Sec. 42.503 Definitions. Sec. Sec. 42.504-42.509 [Reserved] General Nondiscrimination Requirements Sec. 42.510 General prohibitions against discrimination. Sec. 42.511 Communications. SECTNO>Sec. 42.512 Employment. Sec. 42.513 Direct threat. Sec. 42.514 Illegal use of drugs. Sec. 42.515 Claims of no disability. Sec. 42.516-42.519 [Reserved] [[Page 6405]] Program Accessibility Sec. 42.520 Discrimination prohibited. Sec. 42.521 Existing facilities. Sec. 42.522 Program accessibility in jails, detention and correctional facilities, and community correctional facilities. Sec. 42.523 New construction and alterations. Sec. Sec. 42.524-42.529 [Reserved] Procedures Sec. 42.530 Administrative procedures for recipients. Sec. 42.531 Assurances required. Sec. 42.532 Compliance and enforcement procedures. Sec. 42.533-42.539 [Reserved] Appendix--Appendix A to Subpart G of Part 42--Federal Financial Assistance Administered by the Department of Justice to Which This Subpart Applies. Appendix--Appendix B to Subpart G of Part 42 [Reserved]. Appendix--Appendix C to Subpart G of Part 42--Department Regulations Under Title VI of the Civil Rights Act of 1964 (28 CFR 42.106- 42.110) Which Apply to This Subpart Appendix--Appendix C to Subpart G of Part 42--OJARS' Regulations Under the Omnibus Crime Control and Safe Streets Act, as Amended, Which Apply to This Subpart (28 CFR 42.205 and 42.206) Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 29 U.S.C. 794; E.O. 12250. General Sec. 42.501 Purpose. The purpose of this subpart is to implement section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of disability in any program or activity receiving Federal financial assistance. Sec. 42.502 Application, broad coverage, and relationship to other laws. (a) Application. This subpart applies to each recipient of Federal financial assistance from the Department of Justice and to each program or activity receiving such assistance. The requirements of this subpart do not apply to the ultimate beneficiaries of Federal financial assistance in the program or activity receiving Federal financial assistance. This subpart does not apply to programs or activities conducted by the Department of Justice. (b) Broad scope of coverage. Consistent with the ADA Amendments Act's purpose of reinstating a broad scope of protection under both the Americans with Disabilities Act and section 504, the definition of ``disability'' in this subpart shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of section 504. The primary object of attention in cases brought under this subpart should be whether entities covered under section 504 have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of ``disability.'' The question of whether an individual meets the definition of ``disability'' should not demand extensive analysis. (c) Relationship to other laws. (1) The obligation to comply with this subpart is not obviated by or otherwise affected by the existence of any State or local law or other requirement that, on the basis of disability, imposes prohibitions or limits upon the eligibility of qualified individuals with disabilities to receive aid, benefits, or services or to practice any occupation or profession. (2) This subpart does not invalidate or limit the remedies, rights, and procedures of any other Federal law, or State or local law (including State common law), that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them. Sec. 42.503 Definitions. As used in this subpart the term-- 2004 ADAAG means the requirements set forth in appendices B and D to 36 CFR part 1191 (2009). 2010 Standards means the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG and the requirements contained in 28 CFR 35.151. The Act means the Rehabilitation Act of 1973, Public Law 93-112, as amended, 29 U.S.C. 701 et seq. Applicant means one who submits an application, request, or plan required to be approved by the designated Department official or by a primary recipient, as a condition to eligibility for Federal financial assistance. Auxiliary aids and services include-- (1) Qualified interpreters on-site or through video remote interpreting (VRI) services; note takers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing. (2) Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision; (3) Acquisition or modification of equipment or devices; and (4) Other similar services and actions. Component means any specific division, operating bureau, or other organizational unit of the Department of Justice. Current illegal use of drugs means illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem. Department means the Department of Justice, including each of its specific divisions, operating bureaus, and other organizational units. Direct threat means (1) With respect to any aid, benefit, or service provided under a program or activity subject to this subpart, a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. (2) With respect to employment, the term as defined by the Equal Employment Opportunity Commission's regulation implementing title I of the Americans with Disabilities Act of 1990, at 29 CFR 1630.2(r). Disability has the same meaning as given in 28 CFR part 35. Drug means a controlled substance as defined in schedules I through V of section 202 of the Controlled Substances Act, 21 U.S.C. 812. Facility means all or any portion of buildings, structures, sites, complexes, equipment, roads, walks, passageways, parking lots, rolling stock, or other conveyances, including the site where the building, property, structure, or equipment is located, or other real or personal property or interest in such property. Federal financial assistance means any grant, cooperative agreement, loan, contract (other than a direct Federal procurement contract or a contract of insurance or guaranty), subgrant, contract under a grant, or any other arrangement by which the Department [[Page 6406]] provides or otherwise makes available assistance in the form of-- (1) Funds; (2) Services of Federal personnel; (3) Real and personal property or any interest in or use of such property, including-- (i) Transfers or leases of such property for less than fair market value or for reduced consideration; and (ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Government; and (4) Any other thing of value by way of grant, loan, contract or cooperative agreement. Historic preservation programs means programs conducted by recipients of Federal financial assistance that have preservation of historic properties as a primary purpose. Historic Properties means those buildings or facilities that are eligible for listing in the National Register of Historic Places, or such properties designated as historic under a statute of the appropriate State or local government body. Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act, 21 U.S.C. 812. The term illegal use of drugs does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law. Individual with a disability means any person who has a disability. The term individual with a disability does not include an individual who is currently engaging in the illegal use of drugs, when the recipient acts on the basis of such use. Primary recipient means any recipient that is authorized or required to extend Federal financial assistance to another recipient. Program or activity means all of the operations of any entity described in paragraphs (1) through (4) of this section, any part of which is extended Federal financial assistance-- (1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or (ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; (2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or (ii) A local educational agency, as defined in 20 U.S.C. 7801, system of vocational education, or other school system; (3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship if-- (A) Assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or (B) The corporation, partnership, private organization, or sole proprietorship is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) Any other entity which is established by two or more of the entities described in paragraph (s)(1), (2), or (3) of this section. Qualified individual with a disability means-- (1) With respect to any aid, benefit, or service provided under a program or activity subject to this subpart, an individual with a disability who, with or without reasonable accommodations in rules, policies, or procedures, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids or services, meets the essential eligibility requirements for receipt of services or the participation in programs or activities provided by a recipient; and (2) With respect to employment, the definition of ``qualified'' in the Equal Employment Opportunity Commission's regulation implementing title I of the Americans with Disabilities Act of 1990, at 29 CFR 1630.2(m), applies to this subpart. Qualified interpreter means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. Qualified reader means a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary. Recipient means any State or unit of local government, any instrumentality of a State or unit of local government, any public or private agency, institution, organization, or other public or private entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance. Section 504 means section 504 of the Rehabilitation Act of 1973, Public Law 93-112, 87 Stat. 394, 29 U.S.C. 794, as amended. Subrecipient means an entity to which a primary recipient extends Federal financial assistance. Ultimate beneficiary is one among a class of persons who are entitled to benefit from, or otherwise participate in, a program or activity receiving Federal financial assistance and to whom the protections of this subpart extend. The ultimate beneficiary class may be the general public or some narrower group of persons. Video remote interpreting (VRI) service means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images as provided in Sec. 42.511. General Nondiscrimination Requirements Sec. 42.510 General prohibitions against discrimination. (a) General. No qualified individual with a disability shall, solely 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 subject to this subpart. (b) Discriminatory actions prohibited. (1) A recipient may not, in providing any program or activity subject to this subpart directly, or through contractual, licensing, or other arrangements, on the basis of disability-- (i) Deny a qualified individual with a disability the opportunity accorded others 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, [[Page 6407]] 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 are provided to others unless such action is necessary to provide qualified individuals with disabilities or any class of individuals with disabilities with aid, benefits, or services that are as effective as that provided to others; (v) Deny a qualified individual with a disability an equal opportunity to provide services to the program or activity; (vi) Deny a qualified individual with a disability an opportunity to participate as a member of a planning or advisory board; (vii) Aid or perpetuate discrimination against a qualified individual with a disability by providing assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the recipient's program or activity; (viii) Permit the participation in the program or activity of agencies, organizations, or persons which discriminate against individuals with disabilities who participate in or benefit from the recipient's program; or (ix) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service. (2) A recipient may not deny a qualified individual with a disability the opportunity to participate in any aid, benefits, or services that are not separate or different, despite the existence of permissibly separate or different aid, benefits, or services. (3) A recipient may not, directly or through contractual, licensing, or other arrangements, utilize criteria or methods of administration-- (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program or activity with respect to individuals with disabilities; or (iii) That perpetuate the discrimination of another recipient if both recipients are subject to common administrative control or are departments or agencies, special purpose districts, or other instrumentalities of the same State or local government unit. (4) A recipient may not, in determining the site, or a location of a facility, make selections-- (i) That have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination on the basis of disability; or (ii) That have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the program or activity with respect to individuals with disabilities. (5) An entity not otherwise receiving Federal financial assistance but using a facility provided with the aid of Federal financial assistance after the effective date of this subpart is prohibited from discriminating on the basis of disability. (6) A recipient, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability. (7) A recipient 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 a recipient establish requirements for any of the programs or activities of entities that are licensed or certified that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a recipient are not, themselves, covered by this subpart unless those entities are also recipients of Federal financial assistance from the Department. (c) This subpart does not prohibit the exclusion of individuals without disabilities or specified classes of individuals with disabilities from aid, benefits, or services limited by Federal statute or executive order to individuals with disabilities or a different class of individuals with disabilities. (d) Nothing in this subpart prohibits a recipient from providing aid, benefits, or services to individuals with disabilities or to a particular class of individuals with disabilities beyond those required by this part. (e) Integrated setting. A recipient shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. (f) Nothing in this subpart shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided under section 504 or this subpart which such individual chooses not to accept. (g) Reasonable accommodations. (1) A recipient shall make reasonable accommodations in policies, practices, or procedures when such accommodations are necessary to avoid discrimination on the basis of disability, unless the recipient can demonstrate that making the accommodations would fundamentally alter the nature of the program or activity or result in undue financial and administrative burdens. (2) A recipient is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the ``regarded as'' prong of the definition of disability as defined in 28 CFR 35.104. (3) With respect to employment, the definitions and standards applied to ``reasonable accommodation'' and ``undue hardship'' in the Equal Employment Opportunity Commission's regulation implementing title I of the Americans with Disabilities Act, at 29 CFR 1630.2(o) and (p), and 1630.9, apply to this subpart. (h) Prohibition on surcharges. A recipient may not place a surcharge on a particular individual with a disability or any class of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids, reasonable accommodations, or program accessibility, that are required to provide that individual or class with the nondiscriminatory treatment required by the Act or this subpart. (i) Prohibition on associational discrimination. A recipient shall not exclude or otherwise deny aid, benefits, or services of its program or activity to an individual because of that individual's relationship or association with an individual with a known disability. (j) Prohibition on discriminatory eligibility criteria. A recipient shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any aid, benefit, or service unless such criteria can be shown to be necessary for the provision of the aid, benefit, or service being offered. (k) Prohibition on intimidation and retaliation. A recipient shall not intimidate or retaliate against any individual, with or without a disability, for the purpose of interfering with any right secured by section 504 or this subpart. (l) The enumeration of specific forms of prohibited discrimination in this subpart is not exhaustive but only illustrative. [[Page 6408]] Sec. 42.511 Communications. (a) General. (1) A recipient shall take appropriate steps to ensure that communications with applicants, participants, beneficiaries, members of the public, and companions with disabilities are as effective as communications with others. (2) For purposes of this section, ``companion'' means a family member, friend, or associate of an individual seeking access to a program, or activity of a recipient, who, along with such individual, is an appropriate person with whom the recipient should communicate. (b) Auxiliary aids and services. (1) A recipient shall furnish appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities, including applicants, participants, beneficiaries, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity, of a recipient. (2) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a recipient entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability. (c) Limitations on use of accompanying adults or children as interpreters. (1) A recipient shall not require an individual with a disability to bring another individual to interpret for him or her. (2) A recipient shall not rely on an adult accompanying an individual with a disability to interpret or facilitate communication except-- (i) In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or (ii) When the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. (3) A recipient shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public when there is no interpreter available. (d) Video remote interpreting (VRI) services. A recipient that provides qualified interpreters via VRI services shall ensure that it provides-- (1) Real-time, full-motion video and audio over a dedicated high- speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; (2) A sharply delineated image that is large enough to display the interpreter's face, arms, hands, and fingers, and the participating individual's face, arms, hands, and fingers, and can be seen by the participating individual regardless of the individual's body position; (3) A clear, audible transmission of voices; and (4) Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI. (e) Telecommunications. (1) Where a recipient communicates by telephone with applicants, participants, beneficiaries, members of the public, and companions with disabilities, the recipient shall communicate with individuals who are deaf or hard of hearing or have speech disabilities using telecommunication systems that provide equally effective communication. (2) When a recipient uses an automated-attendant system, including, but not limited to, voice mail and messaging, or an interactive voice response system, for receiving and directing incoming telephone calls, that system must provide effective real-time communication with individuals using auxiliary aids and services, including, but not limited to TTYs and all forms of FCC-approved telecommunications relay systems, including Internet-based relay systems. (3) A recipient shall respond to telephone calls from a relay service, established under 47 U.S.C. 225, including telephone relay, video relay, and Internet protocol (IP) relay in the same manner that it responds to other telephone calls. (f) Limitations. This section does not require the recipient 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 the recipient believes that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the recipient has the burden of proving that compliance with Sec. 42.511 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of the recipient or the head's designee after considering all resources available for use in the funding and operation of the program or activity, and it must be accompanied by a written statement of the reasons for reaching that conclusion. If an action otherwise required by this section would result in such an alteration or such burdens, the recipient 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, persons with a disability receive the aid, benefits, and services of the program or activity. Sec. 42.512 Employment. (a) Discrimination prohibited. (1) General. No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any program or activity to which this subpart applies. (2) Employment discrimination standards. The standards used to determine whether paragraph (a)(1) of this section has been violated shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12111 et seq., and, as such sections relate to employment, the provisions of sections 501 through 504 and 511 of the ADA of 1990, as amended (codified at 42 U.S.C. 12201-12204, 12210), as implemented in the Equal Employment Opportunity Commission's regulation at 29 CFR part 1630. The procedures to be used to determine whether paragraph (a) of this section has been violated shall be the procedures set forth in Sec. 42.532 of this subpart. 42.513 Direct threat. (a) This subpart does not require a recipient to permit an individual to participate in or benefit from the program or activity of that recipient when that individual poses a direct threat to the health or safety of others. (b) In determining whether an individual poses a direct threat to the health or safety of others, a recipient must make an individualized assessment, based on reasonable judgment that relies on current medical [[Page 6409]] knowledge or on the best available objective evidence, to ascertain-- the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable accommodations in policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. (c) An employer does not have to employ an individual who would pose a direct threat as that term is defined in the Equal Employment Opportunity Commission's regulation implementing title I of the Americans with Disabilities Act of 1990, at 29 CFR 1630.2(r) and 1630.15(b). Sec. 42.514 Illegal use of drugs. (a) General. Except as provided in paragraph (c) of this section, ``Health and drug rehabilitation services,'' this subpart does not prohibit discrimination against an individual based on that individual's current use of illegal drugs. (b) Non-discrimination requirement. A recipient shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who-- (1) Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully; (2) Is participating in a supervised rehabilitation program; or (3) Is erroneously regarded as engaging in such use. (c) Health and drug rehabilitation services. (1) A recipient shall not deny health services, or services provided in connection with drug rehabilitation, to an individual on the basis of that individual's current illegal use of drugs, if the individual is otherwise entitled to such services. (2) A drug rehabilitation or treatment program may deny participation to individuals who engage in illegal use of drugs while they are in the program. (d) Drug testing. (1) This subpart does not prohibit a recipient from adopting or administering reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs. (2) Nothing in paragraph (d)(1) of this section shall be construed to encourage, prohibit, restrict, or authorize the conducting of testing for the illegal use of drugs. Sec. 42.515 Claims of no disability. Nothing in this subpart shall provide the basis for a claim that an individual without a disability was subject to discrimination because of a lack of disability, including a claim that an individual with a disability was granted a reasonable accommodation that was denied to an individual without a disability. Program Accessibility Sec. 42.520 Discrimination prohibited. A recipient shall ensure that no qualified individual with a disability is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under any program or activity receiving Federal financial assistance because the recipient's facilities are inaccessible to or unusable by individuals with a disability. Sec. 42.521 Existing facilities. (a) Accessibility. A recipient shall operate its program or activity so that when each part of the program or activity is viewed in its entirety, it is readily accessible to and usable by individuals with disabilities. This section does not-- (1) Necessarily require a recipient to make each of its existing facilities or every part of an existing facility accessible to and usable by individuals with disabilities; (2) Require a recipient 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 the recipient believes that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the recipient has the burden of proving that compliance with Sec. 42.521(a) of this subpart would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of the recipient or the head's designee after considering all resources available for use in the funding and operation of the 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, a recipient shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure to the maximum extent possible, that individuals with disabilities receive the benefits or services of the program or activity; or (3) Require a recipient to take any action that would threaten or destroy the historically significant features of a historic property. (b) Methods. (1) General. A recipient may comply with the requirements of this section through such means as, 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 in conformance with Sec. 42.522, redesign or acquisition of equipment, use of accessible rolling stock or other conveyances, or any other methods that result in making its service, program, or activity readily accessible to and usable by individuals with disabilities. A recipient is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. In choosing among available methods for meeting the requirements of this section, a recipient shall give priority to those methods that serve qualified individuals with disabilities in the most integrated setting appropriate. (2) Safe harbor. For the purposes of complying with this section, elements that have not been altered in existing facilities on or after [INSERT EFFECTIVE DATE OF THE RULE], and that comply with the corresponding technical and scoping specifications for those elements in the Uniform Federal Accessibility Standards (UFAS), 49 FR 31528, app. A (Aug. 7, 1984), are not required to be modified to be brought into compliance with the requirements set forth in the 2010 Standards. (3) Historic preservation programs. In meeting the requirements of this section in historic preservation programs, a recipient shall give priority to methods that provide physical access to individuals with disabilities. In cases where a physical alteration to a 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. (c) Small providers. If a recipient with fewer than fifteen employees finds, after consultation with an individual with a disability seeking its services, that there is no method of complying with Sec. 42.521(a) other than making a significant alteration to its existing facilities, the recipient may, as an [[Page 6410]] alternative, refer the individual with a disability to alternative providers of available accessible services. For the purposes of this paragraph, in order to ensure that the services are available, the small provider must first determine that the alternative provider's services are accessible, the alternative provider is willing to provide the services, the services are available at no additional cost to the individual with a disability, and transportation costs to and from the alternative provider do not exceed costs to and from the small provider. (d) Written plan required for certain recipients to achieve program accessibility. Recipients subject to this subpart as of October 1, 1980, and required to make structural changes in order to provide program accessibility, were required to develop, by January 3, 1981, a written plan setting forth the steps to be taken to complete the changes, together with a schedule for making the changes. The plan should have been developed with the assistance of interested persons, including individuals with disabilities or organizations representing individuals with disabilities and was to be made available for public inspection. The plan should have, at a minimum-- (1) Identified physical obstacles in the recipient's facilities that limit the accessibility of its program or activity to individuals with disabilities; (2) Described in detail the methods that would be used to make the facilities accessible; (3) Specified the schedule for taking the steps necessary to achieve full accessibility under Sec. 42.521(a) and, if the time period of the transition plan was longer than one year, identified the steps that would be taken during each year of the transition period; and (4) Indicated the person responsible for implementation of the plan. (e) Notice of location of accessible facilities. (1) General. A recipient shall adopt and implement procedures to ensure that interested individuals with disabilities, including individuals with an intellectual disability, learning disability, vision or hearing disability, or other disability, can obtain information as to the existence and location of services, activities, and facilities that are accessible to and usable by individuals with disabilities. (2) Signs at primary entrances. A recipient shall provide signs at a primary entrance to each of its inaccessible facilities directing users to an accessible facility or a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each accessible entrance of a facility. Sec. 42.522 Program accessibility in jails, detention and correctional facilities, and community correctional facilities. (a) Applicability. This section specifically applies to a recipient that is responsible for the operation or management of adult and juvenile justice jails, detention and correctional facilities, and community correctional facilities, either directly or through contractual, licensing, or other arrangements with public or private entities, in whole or in part, including private correctional facilities. (b)(1) In addition to the other requirements of this subpart, a recipient shall ensure that qualified inmates or detainees with disabilities shall not, because a facility is inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of, the services, programs, or activities of a recipient, or be subjected to discrimination by any recipient. (2) A recipient shall ensure that inmates or detainees with disabilities are housed in the most integrated setting appropriate to the needs of the individuals. Unless it is appropriate to make an exception, a recipient-- (i) Shall not place inmates or detainees with disabilities in inappropriate security classifications because of their disabilities; (ii) Shall not place inmates or detainees with disabilities in designated medical areas unless they are actually receiving medical care or treatment; (iii) Shall not place inmates or detainees with disabilities in facilities that do not offer the same aid, benefits, and services as the facilities where they would otherwise be housed; and (iv) Shall not deprive inmates or detainees with disabilities of visitation with family members by placing them in distant facilities where they would not otherwise be housed. (3) A recipient shall implement reasonable policies, including physical modifications to additional cells in accordance with the 2010 Standards, so as to ensure that each inmate with a disability is housed in a cell with the accessible elements necessary to afford the inmate access to safe, appropriate housing. Sec. 42.523 New construction and alterations. (a) Design and construction. Each new facility constructed by, on behalf of, or for the use of a recipient shall be designed and constructed in such a manner that the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after July 3, 1980. (b) Alteration. Each facility or part of a facility, which is altered by, on behalf of, or for the use of, a recipient after July 3, 1980, in a manner that affects or could affect the usability of the facility or part of the facility shall to the maximum extent feasible be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with a disability. (c) Accessibility standards, compliance dates, and triggering events. (1) Applicable accessibility standards-- (i) New construction and alterations of buildings or facilities undertaken on or after March 7, 1988, but before [INSERT DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal Register] shall comply with the Uniform Federal Accessibility Standards (UFAS). (ii) New construction and alterations of buildings or facilities undertaken after [INSERT DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal Register] but before [INSERT DATE ONE YEAR FROM PUBLICATION DATE OF THE FINAL RULE IN THE Federal Register] must comply with either UFAS or the 2010 Standards. (iii) New construction and alterations of buildings or facilities undertaken on or after [INSERT DATE ONE YEAR FROM PUBLICATION DATE OF THE FINAL RULE IN THE Federal Register] must comply with the 2010 Standards. (iv) New construction and alterations of buildings or facilities undertaken in compliance with the 2010 Standards shall comply with the scoping and technical requirements for a ``public building or facility'' regardless of whether the recipient is a public entity as defined in 28 CFR 35.104 or a private entity. (v) Departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided. (vi) For purposes of compliance with UFAS, section 4.1.6(1)(g) of UFAS shall be interpreted to exempt from the requirements of UFAS only mechanical rooms and other spaces that, because of their intended use, will not require accessibility to the public or beneficiaries or result in the employment or residence therein of persons with physical disabilities. (2) Triggering events for compliance with accessibility standards. (i) Private entities. (A) Private entities may choose one of the Standards specified in paragraph (c)(1)(ii) of this section if: The last application for a building permit or [[Page 6411]] permit extension for such construction or alterations is certified to be complete by a State, county, or local government; or, in those jurisdictions where the government does not certify completion of applications, the last application for a building permit or permit extension is received by the State, county, or local government; or, where no permit is required, physical construction or alterations have commenced, on or after [INSERT PUBLICATION DATE OF THE FINAL RULE IN THE Federal Register] and before [INSERT DATE ONE YEAR FROM PUBLICATION DATE OF THE FINAL RULE IN THE Federal Register]. (B) Private entities must comply with paragraph (c)(1)(iii) of this section if: the last application for a building permit or permit extension for such construction or alterations is certified to be complete by a State, county, or local government; or, in those jurisdictions where the government does not certify completion of applications, the last application for a building permit or permit extension is received by the State, county, or local government; or, in jurisdictions where no permit is required, physical construction or alteration has commenced, on or after [INSERT DATE ONE YEAR FROM PUBLICATION DATE OF THE FINAL RULE IN THE Federal Register]. (ii) Public entities. (A) Public entities may choose one of the Standards specified in paragraph (c)(1)(ii) of this section if new physical construction or alterations commence after [INSERT DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal Register] but before [INSERT DATE ONE YEAR FROM PUBLICATION DATE OF THE FINAL RULE IN THE Federal Register]. (B) Public entities must comply with paragraph (c)(1)(iii) of this section if new physical construction or alterations commence on or after [INSERT DATE ONE YEAR FROM PUBLICATION DATE OF THE FINAL RULE IN THE Federal Register]. (3) For the purposes of this section, ceremonial groundbreaking or razing of structures prior to site preparation will not be considered to commence or start physical construction or alterations. Table of Applicable Standards for Complying With 28 CFR 42.522 ------------------------------------------------------------------------ Compliance dates for new construction Applicable standards for and alterations complying with 28 CFR 42.522 ------------------------------------------------------------------------ After March 7, 1988 and before [INSERT UFAS. DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER]. After [INSERT DATE OF PUBLICATION OF UFAS or the scoping and THE FINAL RULE IN THE FEDERAL technical requirements for a REGISTER] and before [INSERT DATE ONE ``public building or YEAR FROM PUBLICATION DATE OF THE facility'' in the 2010 FINAL RULE IN THE FEDERAL REGISTER]. Standards. On or after [INSERT DATE ONE YEAR FROM The scoping and technical PUBLICATION DATE OF THE FINAL RULE IN requirements in the 2010 THE FEDERAL REGISTER]. Standards for a ``public building or facility''. ------------------------------------------------------------------------ (4) Compliance with the Architectural Barriers Act of 1968. Nothing in this section relieves recipients whose facilities are covered by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-57), from the responsibility of complying with the requirements of that Act and any implementing regulations. Procedures Sec. 42.530 Administrative procedures for recipients. (a) Voluntary action. A recipient may take steps, in addition to any action that is required by this subpart, to increase the participation of qualified individuals with disabilities in the recipient's program or activity. (b) Self-evaluation. (1) A recipient was required, by July 3, 1981, to evaluate and modify its policies and practices that did not meet the requirements of this subpart. During this process, the recipient was required to seek the advice and assistance of interested persons, including individuals with disabilities or organizations representing individuals with disabilities. During this period and thereafter, the recipient was required to take any necessary remedial steps to eliminate the effects of discrimination that resulted from adherence to these policies and practices. (2) A recipient employing 50 or more persons and receiving Federal financial assistance from the Department of $25,000 or more was required, for at least three years following completion of the evaluation required under paragraph (c)(1) of this section, to maintain on file, make available for public inspection, and provide to the Department on request-- (i) A list of the interested persons consulted; (ii) A description of areas examined and problems identified; and (iii) A description of modifications made and remedial steps taken. (c) Designation of responsible employee. A recipient employing 50 or more persons and receiving Federal financial assistance from the Department of $25,000 or more shall designate at least one person to coordinate compliance with this subpart. (d) Adoption of grievance procedures. A recipient employing 50 or more persons and receiving Federal financial assistance from the Department of $25,000 or more and receiving Federal financial assistance from the Department of $25,000 or more shall adopt grievance procedures that incorporate appropriate due process standards (e.g., adequate notice, fair hearing) and provide for the prompt and equitable resolution of complaints alleging any action prohibited by this subpart except that such procedures need not be established with respect to complaints from applicants for employment. Any individual may file a complaint with the Department in accordance with the procedures at Sec. 42.532 without having first used a recipient's grievance procedures. (e) Notice. (1) A recipient employing 50 or more persons and receiving Federal financial assistance from the Department of $25,000 or more shall, on a continuing basis, notify participants, beneficiaries, applicants, employees and unions or professional organizations holding collective bargaining or professional agreements with the recipient that it does not discriminate on the basis of disability in violation of section 504 and this subpart. The notification shall state, where appropriate, that the recipient does not discriminate in its programs or activities with respect to access, treatment, or employment. The notification shall also include identification of the person responsible for coordinating compliance with this subpart and where to file section 504 complaints with the Department and, where applicable, with [[Page 6412]] the recipient. Methods of initial and continuing notification may include the posting of notices, publication in newspapers and magazines, publication on the recipient's internet Web site, placement of notices in the recipient's publications, and distribution of memoranda or other written communications. (2) Recruitment materials or publications containing general information that a recipient makes available to participants, beneficiaries, applicants, or employees shall include a policy statement of nondiscrimination on the basis of disability. (f) The Department may require any recipient with fewer than 50 employees and receiving Federal financial assistance from the Department of $25,000 or more to comply with paragraphs (c) through (e) of this section. Sec. 42.531 Assurances required. (a) Assurances. (1) General. Every application for Federal financial assistance covered by this subpart shall contain an assurance that the program or activity will be conducted in compliance with the requirements of section 504 and this subpart. Each component within the Department that provides Federal financial assistance shall specify the form of the foregoing assurance and shall require applicants for Department financial assistance to obtain like assurances from subrecipients, contractors and subcontractors, transferees, successors in interest, and others connected with the program or activity. Each component shall specify the extent to which an applicant will be required to confirm that the assurances provided by secondary recipients are being honored. Each assurance shall include provisions giving notice that the United States has a right to seek judicial enforcement of section 504, this subpart, and the assurance. (2) Assurances from government departments or agencies. Assurances from departments or agencies of State and local governments described in paragraph (1) of the definition of ``program or activity'' at Sec. 42.503 shall extend to any other department or agency of the same governmental unit if the policies of the other department or agency will affect the aid, benefits, or services for which Federal financial assistance is requested. (3) Assurances from other entities. The assurances required with respect to any entity described in paragraph (3)(ii) of the definition of ``program or activity'' at section 42.503 shall be applicable to the entire plant or other comparable, geographically separate facility. The assurances required with respect any other entity described in paragraph (2) or (3) of the definition of ``program or activity'' at Sec. 42.503 shall be applicable to the entire entity. (b) Duration of obligation. Where the Federal financial assistance is to provide or is in the form of real or personal property or improvements, the assurance will obligate the recipient and any transferee for the period during which the property is being used for the purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits, or for as long as the recipient retains ownership or possession of the property, whichever is longer. When the Federal financial assistance is not in the form of real or personal property or improvements, the assurance will obligate the recipient for the period during which Federal financial assistance is extended. (c) Covenants. With respect to any transfer of real property, the transfer document shall contain a covenant running with the land assuring nondiscrimination on the condition described in paragraph (b) of this section. Where the property is obtained from the Federal Government, the covenant may also include a condition coupled with a right to be reserved by the Department to revert title to the property in the event of a breach of the covenant. (d) Remedies. The failure to secure either an assurance or a sufficient assurance from a recipient shall not impair the right of the Department to enforce the requirements of section 504 and this subpart. Sec. 42.532 Compliance and enforcement procedures. (a)(1) The procedural provisions applicable to title VI of the Civil Rights Act of 1964, 28 CFR 42.106-42.110, apply to this subpart, except that the provision contained in Sec. 42.108(c)(3) and Sec. 42.110(e) that requires the Attorney General's approval before the imposition of any sanction against a recipient, does not apply to programs or activities funded by a grant-making component of the Department. The applicable provisions contain requirements for compliance information (Sec. 42.106), conduct of investigations (Sec. 42.107), procedure for effecting compliance (Sec. 42.108), hearings (Sec. 42.109), and decisions and notices (Sec. 42.110). See appendix C. (2) In the case of programs or activities funded by a grant-making component of the Department, the requirement to provide access to sources of information pursuant to 28 CFR 42.106(c) may be enforced using the procedures cited in paragraph (a)(1) of this section or using the provisions of section 803(a) of title I of the Omnibus Crime Control and Safe Streets Act, as amended by the Justice System Improvement Act of 1979, Public Law 96-157, 93 Stat. 1167. (b) In the case of programs or activities funded by a grant-making component of the Department, the timetables and standards for investigation of complaints and for the conduct of compliance reviews contained in Sec. 42.205(c)(1) through (c)(3) and Sec. 42.206(c) and (d) are applicable to this subpart except that any finding of noncompliance shall be enforced as provided in paragraph (a) of this section. See appendix D. (c) Remedial action. (1) If the Department finds that a recipient has discriminated against an individual on the basis of disability in violation of section 504 or this subpart, the recipient shall take such remedial action the Department considers necessary to overcome the effects of the discrimination. (2) The Department may, where necessary to overcome the effects of discrimination in violation of section 504, or this subpart, require a recipient to take remedial action-- (i) With respect to individuals with disabilities who are no longer participants in the recipient's program or activity but who were participants in the program when such discrimination occurred; and (ii) With respect to individuals with disabilities who would have been participants in the program had the discrimination not occurred. (d) Complaints of violations of section 504 by recipients of Federal financial assistance from the Department should be filed with the Office for Civil Rights at the Office of Justice Programs. Appendix A to Subpart G of Part 42--Federal Financial Assistance Administered by the Department of Justice to Which This Subpart Applies Note: Failure to list a type of Federal assistance in appendix A shall not mean, if section 504 is otherwise applicable, that a program or activity is not covered. Editorial Note: For the text of appendix A to subpart G, see appendix A to subpart C of this part. [[Page 6413]] Appendix B to Subpart G of Part 42--[Reserved] Appendix C to Subpart G of Part 42--Department Regulations Under Title VI of the Civil Rights Act of 1964 (28 CFR 42.106-42.110) Which Apply to This Subpart Editorial Note: For the text of appendix C, see Sec. Sec. 42.106 through 42.110 of this part. Appendix D to Subpart G of Part 42--OJARS' Regulations Under the Omnibus Crime Control and Safe Streets Act, as Amended, Which Apply to This Subpart (28 CFR 42.205 and 42.206) Editorial Note: For the text of appendix D, see Sec. Sec. 42.205 and 42.206 of this part. Dated: January 11, 2017. Loretta E. Lynch, Attorney General. [FR Doc. 2017-01057 Filed 1-18-17; 8:45 am] BILLING CODE 4410-13-P
![6388 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules
of this section, this section applies to (2) * * * In addition, the application comparable provisions implementing
taxable years beginning after July 2, must include documentary evidence the title II of the Americans with
2008. IRS prescribes to establish that a child Disabilities Act; and make other non-
(2) Exception. Paragraphs (e)(2) and has been placed lawfully with the substantive clarifying edits, including
(e)(3)(iii) of this section apply to taxable prospective adoptive parent for legal updating outdated terminology and
years beginning after the date these adoption by that person. Examples of references that currently exist in 28 CFR
regulations are published as final acceptable documentary evidence part 42, such as changing the word
regulations in the Federal Register. establishing lawful placement for a legal ‘‘handicapped’’ and similar variations of
adoption may include— that word to language referencing
§ 1.6013–1 [Amended] ‘‘individuals with disabilities,’’
* * * * *
■ Par. 18. Section 1.6013–1 is amended (d) Applicability date—(1) In general. modifying the order of the regulatory
by removing paragraph (e). Except as otherwise provided in provisions to group like provisions
paragraph (d)(2) of this section, the together, and adding some headings to
PART 301—PROCEDURE AND make the regulation more user-friendly.
ADMINISTRATION provisions of this section apply to
income tax returns due (without regard DATES: All comments must be submitted
■ Par. 19. The authority citation for part to extension) on or after April 15, 1998. on or before March 20, 2017.
301 continues to read in part as follows: (2) Exception. Paragraphs (a)(1), (b), ADDRESSES: You may submit comments,
Authority: 26 U.S.C. 7805 * * * (c)(1)(ii), and (c)(2) of this section apply identified by RIN 1105–AB50, by any
to income tax returns due (without one of the following methods:
■ Par. 20. Section 301.6109–3 is regard to extension) on or after the date • Federal eRulemaking portal: http://
amended by: these regulations are published as final www.regulations.gov. Follow the Web
■ 1. Revising the first sentence and regulations in the Federal Register. site’s instructions for submitting
adding a sentence to the end of the comments.
John Dalrymple,
paragraph in paragraph (a)(1). • Regular U.S. mail: Disability Rights
■ 2. Revising paragraphs (b), (c)(1)(ii), Deputy Commissioner for Services and
Section, Civil Rights Division, U.S.
the fourth and fifth sentences of (c)(2) Enforcement.
Department of Justice, P.O. Box 2885,
introductory text, and paragraph (d). [FR Doc. 2017–01056 Filed 1–18–17; 8:45 am]
Fairfax, VA 22031–0885.
The revisions and addition read as BILLING CODE 4830–01–P • Overnight, courier, or hand
follows: delivery: Disability Rights Section, Civil
Rights Division, U.S. Department of
§ 301.6109–3 IRS adoption taxpayer
identification numbers.
DEPARTMENT OF JUSTICE Justice, 1425 New York Avenue NW.,
Suite 4055, Washington, DC 20005.
(a) In general—(1) Definition. An IRS Office of the Attorney General FOR FURTHER INFORMATION CONTACT:
adoption taxpayer identification number
(ATIN) is a temporary taxpayer Rebecca Bond, Chief, Disability Rights
28 CFR Part 42 Section, Civil Rights Division, U.S.
identifying number assigned by the
Internal Revenue Service (IRS) to a child [Docket No. OAG 154; AG Order No. 3818– Department of Justice, at (202) 307–0663
(other than an alien individual as 2017] (voice or TTY) (not a toll-free number);
defined in § 301.6109–1(d)(3)(i)) who or Michael Alston, Director, Office for
RIN 1105–AB50
has been placed lawfully with a Civil Rights, Office of Justice Programs,
prospective adoptive parent for legal Amendment of Regulations U.S. Department of Justice, at (202) 307–
adoption by that person. * * * A child Implementing Section 504 of the 0690 (not a toll-free number).
lawfully placed with a prospective Rehabilitation Act of 1973— Information may also be obtained from
adoptive parent for legal adoption Nondiscrimination Based on Disability the Department’s toll-free ADA
includes a child placed for legal in Federally Assisted Programs or Information Line at (800) 514–0301
adoption by the child’s parent or Activities (voice), or (800) 514–0383 (TTY).
You may obtain copies of this notice
parents by blood, an authorized
AGENCY: Department of Justice. of proposed rulemaking (NPRM) in an
placement agency, or any other person
ACTION: Notice of proposed rulemaking. alternative format by calling the ADA
authorized by State law to place a child
Information Line at (800) 514–0301
for legal adoption.
SUMMARY: The Department of Justice is (voice), or (800) 514–0383 (TTY). This
* * * * * issuing this notice of proposed NPRM is also available on the ADA
(b) Definitions—(1) Authorized rulemaking to revise its regulation Home Page at http://www.ada.gov.
placement agency has the same meaning implementing section 504 of the SUPPLEMENTARY INFORMATION:
as in § 1.152–1(b)(1)(iv). Rehabilitation Act of 1973, as applicable
(2) Child means a child who has not to programs and activities receiving Electronic Submission of Comments
been adopted but has been placed financial assistance from the and Posting of Public Comments
lawfully with a prospective adoptive Department, in order to incorporate You may submit electronic comments
parent for legal adoption by that person. amendments to the statute, including to http://www.regulations.gov. When
(3) Prospective adoptive parent means the changes in the meaning and submitting comments electronically,
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
a person in whose household a child interpretation of the applicable you must include ‘‘RIN 1105–AB50’’ in
has been placed lawfully for legal definition of disability required by the the subject field, and you must include
adoption by that person. ADA Amendments Act of 2008; your full name and address. Electronic
(c) * * * incorporate requirements stemming files should avoid the use of special
(1) * * * from judicial decisions; update characters or any form of encryption
(ii) The child has been placed accessibility standards applicable to and should be free of any defects or
lawfully with the prospective adoptive new construction and alteration of viruses.
parent for legal adoption by that person; buildings and facilities; update certain Please note that all comments
* * * * * provisions to promote consistency with received are considered part of the
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/1.svg)
![6390 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules
Supreme Court decisions interpreting the changes that the Department is conducted by the Department. The
section 504 requirements relating to the proposing are intended to conform the Department’s section 504 federally
principles of ‘‘direct threat’’ and language of specific provisions in the conducted regulation is found at 28 CFR
reasonable accommodation. See, e.g., section 504 regulation to corresponding part 39.
Sch. Bd. of Nassau Cty. v. Arline, 480 provisions in the title II regulation,
Section 42.502(b)—Broad Scope of
U.S. 273 (1987); Alexander v. Choate, many of which were updated in 2010.
Coverage
469 U.S. 287 (1985); Se. Cmty. Coll. v. The Department believes it is in the
Davis, 442 U.S. 397 (1979). Although interest of the recipients who have to The ADA Amendments Act was
Arline, Choate, and Davis have been apply the requirements of both section signed into law on September 25, 2008,
applied by lower courts since their 504 and title II that, where appropriate, and became effective on January 1,
issuance, the Department’s existing the comparable requirements in the 2009. Congress enacted the ADA
section 504 federally assisted regulation corresponding regulations for both Amendments Act in order to ensure that
does not clearly enunciate the Court’s statutes are expressed in comparable the definition of disability is broadly
holdings. The Department has not language. construed and applied without
amended its section 504 federally extensive analysis, and to supersede
II. Section-by-Section Analysis Supreme Court decisions that had too
assisted regulation since its original
publication other than through the This section provides a detailed narrowly interpreted the ADA’s
adoption in 2003 of certain amendments description of the Department’s definition of disability.4 The ADA
to implement the provisions of the Civil proposed changes to the section 504 Amendments Act not only amended the
Rights Restoration Act of 1987. See 68 federally assisted regulation and the meaning and interpretation of the
FR 51334 (Aug. 26, 2003); Public Law reasoning behind the proposals. If the definition of disability applicable to the
100–259 (Mar. 22, 1988). The revisions Department is not proposing a change to ADA, it also amended the Rehabilitation
to this regulation are part of the a regulation section, the unchanged Act of 1973 to require similar changes
Department’s retrospective plan under section is not discussed. The to the meaning and interpretation of
Executive Order 13563, completed in Department is proposing to modify the section 504’s definition of disability at
2011. order and names of some of the 29 U.S.C. 705(20)(B).
regulatory provisions to group like The ADA Amendments Act does not
B. Relationship Between Section 504 provisions together and make the alter the basic elements of the definition
and the ADA regulation more user-friendly. This of disability in the ADA and section
Title II of the ADA prohibits section-by-section analysis follows the 504, but it significantly clarifies how the
discrimination on the basis of disability revised order of the regulatory text. term ‘‘disability’’ is to be interpreted
by public entities (i.e., State and local and adds important rules of
General construction to inform that
governments and their agencies) and is
modeled on section 504. 42 U.S.C. Section 42.502—Application, Broad interpretation. Specifically, Congress
12132 (‘‘[N]o qualified individual with Coverage, and Relationship to Other directed that the definition of disability
a disability shall, by reason of such Laws shall be construed broadly and that the
disability, be excluded from The Department proposes to revise determination of whether an individual
participation in or be denied the has a disability should not demand
existing § 42.502 to add clarifying
benefits of services, programs, or extensive analysis. ADA Amendments
language to the discussion of the
activities of a public entity, or be Act, sec. 2(b)(5), 4(a).
application of this subpart, to add a new Congress also authorized the Equal
subjected to discrimination by any such paragraph (b), which addresses the
entity.’’). A significant amount of Employment Opportunity Commission
broad scope of coverage required by the (EEOC) and the Department to issue
financial assistance from the ADA Amendments Act and the section
Department goes to entities that are also regulations implementing the ADA
504 federally assisted regulation, and to Amendments Act changes, including
covered by title II of the ADA. In move and revise the discussion of the
addition, the Department provides rules of construction. See id., sec.
relationship to other laws from existing 6(a)(2); 42 U.S.C. 12205a. The
financial assistance to some entities § 42.505(h) to a new paragraph (c) in
covered by title III of the ADA.2 Title II Department’s ADA Amendments Act
this section. regulation, along with the EEOC’s title
and section 504 are generally
understood to impose similar Section 42.502(a)—Application I ADA Amendments Act regulation,
requirements, given the similar language include introductory sections describing
The Department proposes to add a
employed in the ADA and the the requirement to construe the
sentence clarifying that this subpart
Rehabilitation Act and the congressional definition of disability broadly and sets
does not apply to programs or activities
directive that the ADA be construed to forth rules of construction consistent
grant at least as much protection as provisions to incorporate language acknowledging
with that goal. See 28 CFR 35.101(b) and
provided by the regulations the discriminatory barriers faced by persons with 29 CFR 1630.1(c)(4).5 The Department’s
implementing the Rehabilitation Act. disabilities, and recognizing that persons with
disabilities have the right to ‘‘enjoy full inclusion 4 Congress specifically found that the holdings of
See, e.g., 42 U.S.C. 12201(a).3 Many of and integration in the economic, political, social, the Supreme Court in Toyota Motor Manufacturing,
cultural and educational mainstream of American Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), and
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
2 Title III prohibits discrimination on the basis of
society.’’ 29 U.S.C. 701(a)(3) as amended. The Sutton v. United Air Lines, Inc., 527 U.S. 471
disability by: (1) Public accommodations (i.e., legislative history to the 1992 Amendments states (1999), narrowed the broad scope of protection
private entities that own, operate, lease, or lease to ‘‘[t]he statement of purpose and policy is a intended to be afforded by the ADA. ADA
places of public accommodation); (2) newly reaffirmation of the precepts of the Americans with Amendments Act, sec. 2. Congress also stated that
constructed and altered commercial facilities; and Disabilities Act, which has been referred to as the one of the purposes of the ADA Amendments Act
(3) private entities that offer certain examinations 20th century emancipation proclamation for is ‘‘to convey that it is the intent of Congress that
and courses related to educational and occupational individuals with disabilities. It is the Committee’s the primary object of attention in cases brought
certification. Recipients of Federal assistance that intent that these principles guide the policies, under the ADA should be whether entities covered
are also title III entities must comply with both the practices, and procedures developed under all titles under the ADA have complied with their
section 504 and the title III regulations. of the [Rehabilitation] Act.’’ S. Rep. 102–357 at 14 obligations * * *.’’ Id., sec. 2(b)(5).
3 The 1992 Amendments revised the (Aug. 3, 1992); H.R. Rep. 102–822 at 81 (Aug. 10, 5 The Department’s ADA Amendments Act
Rehabilitation Act’s findings, purpose, and policy 1992). regulation followed the EEOC approach in
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/3.svg)
![Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules 6391
proposed ‘‘scope of coverage’’ provision regulations at 28 CFR 35.103(b) and 28 Amendments, which use the term
at § 42.502(b) is modeled on the ADA’s CFR 36.103(c), respectively. The ‘‘disability.’’ And fourth, the
broad construction provision and Department believes that these Department proposes to delete the
provides that, consistent with the ADA principles are equally applicable to definitions of ‘‘LEAA,’’ ‘‘NIJ,’’ ‘‘BJS,’’
Amendments Act’s purpose of section 504. Proposed § 42.502(c)(2) ‘‘OJARS,’’ and ‘‘OJJDP.’’ Some of these
reinstating a broad scope of protection incorporates these principles and offices no longer exist, and to account
under both the ADA and section 504, provides that ‘‘[t]his subpart does not for future changes in organization, the
the definition of ‘‘disability’’ in the invalidate or limit the remedies, rights, regulation, where appropriate, will refer
pertinent subpart ‘‘shall be construed and procedures of any other Federal generally to ‘‘grant-making components
broadly in favor of expansive coverage law, or State or local law (including of the Department.’’
to the maximum extent permitted by the State common law), that provide greater Finally, the Department proposes the
terms of section 504.’’ The new or equal protection for the rights of following revisions and additions to the
provision further provides that the individuals with disabilities or ‘‘definitions’’ section to incorporate
primary object of attention in cases individuals associated with them.’’ statutory changes to the Rehabilitation
brought under that subpart ‘‘should be Section 42.503—Definitions Act and to provide greater clarity and
whether entities covered under section consistency of terminology.
504 have complied with their The Department proposes revising
certain definitions to make them ‘‘Applicant’’
obligations and whether discrimination
has occurred, not whether the consistent with the language used to The Department proposes to add the
individual meets the definition of define corresponding terms in the definition of ‘‘applicant’’ to the
‘disability.’ ’’ The question of whether Department’s ADA regulations; deleting proposed regulation using language
an individual meets the definition of terminology that is no longer necessary consistent with the definition in the
‘‘disability’’ under this subpart should or has become obsolete; revising or Department’s regulation implementing
not demand extensive analysis. adding certain terms to incorporate title VI of the Civil Rights Act, at 28 CFR
statutory changes to the Rehabilitation 42.102(h).
Section 42.502(c)—Relationship to Act; adding other definitions for clarity;
Other Law and making minor technical edits to ‘‘Component’’
The Department is proposing to move existing definitions. Also, for ease of The Department proposes to add a
its provision addressing the relationship reference, the Department proposes definition of ‘‘component’’ to the
of section 504 to State and local laws moving the ‘‘definitions’’ section, proposed regulation. Given the various
that provide lesser protections for currently codified at § 42.540, to the names for the Department’s subagencies
persons with disabilities from its beginning of the subpart at § 42.503. (e.g., bureaus, agencies, boards, etc.), the
First, in order to ensure consistency of Department believes that the term
location in the current regulation at
terminology between section 504 and ‘‘component’’ would provide a simpler
§ 42.505(h) to § 42.502(c)(1) in the
the ADA, the Department is proposing and less confusing reference.
revised regulation. The Department is
to add definitions of the following terms
proposing a minor edit to this provision ‘‘Department’’
from the Department’s ADA title II
by adding ‘‘obviated by or otherwise’’
regulation at 28 CFR 35.104: ‘‘2004 The Department proposes to revise
before ‘‘affected’’ so that the provision
ADAAG,’’ ‘‘2010 Standards,’’ ‘‘Auxiliary the definition of ‘‘department’’ to clarify
would read: ‘‘The obligation to comply
aids and services,’’ ‘‘Current illegal use that the term includes all of the
with this subpart is not obviated by or
of drugs,’’ ‘‘Historic preservation Department’s components.
otherwise affected by the existence of programs,’’ ‘‘Qualified interpreter,’’
any State or local law or other ‘‘Qualified reader,’’ and ‘‘Video remote ‘‘Direct Threat’’
requirement that, on the basis of interpreting (VRI) service.’’ The Department proposes to add, with
disability, imposes prohibitions or The Department also proposes to respect to non-employment services,
limits upon the eligibility of qualified delete several terms from the regulation, programs, and activities, a definition of
individuals with disabilities to receive including ‘‘Alcohol abuse,’’ ‘‘Benefit,’’ ‘‘direct threat’’ that is based upon the
services or to practice any occupation or and ‘‘Handicap,’’ as well as obsolete definition provided in the Department’s
profession.’’ references to Departmental components title II regulation at 28 CFR 35.104. The
In addition, the Department is that no longer exist within the Department also proposes to include, for
proposing to add a new provision at Department. First, with respect to the employment context, an additional
§ 42.502(c)(2) that addresses the ‘‘alcohol abuse,’’ the Department paragraph that adopts the definition of
relationship between section 504 and believes the term is no longer necessary ‘‘direct threat’’ in the EEOC’s regulation
other Federal, State, and local laws that given that the definition was only at 29 CFR 1630.2(r).
provide greater protections to persons applicable to the regulation’s
with disabilities. In the ADA, Congress employment provisions, and those ‘‘Disability’’
expressly provided that nothing in the provisions are being revised to reference As previously discussed, the ADA
ADA invalidated or limited the the requirements in title I of the ADA, Amendments Act not only amended the
remedies, rights, and procedures of any in accordance with section 503(b) of the meaning and interpretation of the
Federal law, or State or local law that 1992 Amendments (codified at 29 definition of ‘‘disability’’ applicable to
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
provides greater or equal protection for U.S.C. 791(f)). Second, the Department the ADA, it also amended the
the rights of individuals with also proposes to delete the definition of Rehabilitation Act of 1973 to require
disabilities. See 42 U.S.C. 12201(b). The ‘‘benefit’’ as unnecessary given that the similar changes to the meaning and
Department incorporated this principle meaning of ‘‘benefit’’ is commonly interpretation of the definition of
into its ADA title II and title III understood. Third, the Department ‘‘disability’’ at 29 U.S.C. 705(20)(B),
proposes to delete the definition of applicable to section 504. The
incorporating a broad construction provision and
rules of construction to embody the requirements of
‘‘handicap,’’ as it is neither necessary Department has decided that rather than
the ADA Amendments Act. See 81 FR 53203 (Aug. nor appropriate following the ‘‘people spelling out the meaning and
11, 2016). first’’ language changes from the 1992 interpretation of the definition of
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/4.svg)
![6392 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules
disability in this regulation, it will See ADA § 512(b) (codified at 29 U.S.C. ‘‘Subrecipient’’
incorporate by reference the 705(10)). The Department proposes to add a
Department’s title II definition of definition of ‘‘subrecipient’’ to the
disability found at 28 CFR part 35, ‘‘Individual With a Disability’’
proposed regulation. Entities receiving
which has recently undergone revisions The Department proposes to replace Federal financial assistance through a
to reflect the requirements of the ADA the definition of ‘‘handicapped person’’ primary recipient also must comply
Amendments Act. Due to the changes with ‘‘individual with a disability,’’ with the Department’s section 504
that the ADA Amendments Act made to consistent with the 1992 Amendments, federally assisted regulation.
the meaning and interpretation of the which provide ‘‘people first’’ language
definition of disability, participants in General Nondiscrimination
(e.g., ‘‘individuals with disabilities’’) Requirements
recipients’ programs and activities who,
and which define ‘‘individual with a
before, may not have been determined Section 42.510—General Prohibitions
disability’’ as ‘‘any person who has a
to have a disability under section 504, Against Discrimination
may now be found to have a disability. disability as defined in [section 3 of the
The Rehabilitation Act and the ADA ADA].’’ See 29 U.S.C. 705(20)(B). Section 42.510(b)–(f)—Prohibited
define ‘‘disability’’ as including: (1) A Consistent with the definition in the Discriminatory Actions
physical or mental impairment that Department’s ADA title II regulation, the
The Department proposes to update
substantially limits a major life activity; proposed definition also clarifies that
and clarify the discriminatory actions
(2) a record of such an impairment; or the term ‘‘individual with a disability’’
prohibited under § 42.503 of the
(3) being regarded as having such an does not include an individual who is Department’s current regulation. With
impairment. 29 U.S.C. 705(9)(B); 42 currently engaging in the illegal use of the exception of the revisions addressed
U.S.C. 12102(1). The ADA Amendments drugs, when a recipient acts on the basis below, the Department proposes
Act does not alter these three basic of such use. The proposed definition retaining the same prohibited
elements of the definition of disability, eliminates references to individuals discriminatory actions as in the current
but it does significantly clarify how the who would not be considered to have a regulation but, where applicable,
term ‘‘disability’’ is to be interpreted disability for purposes of employment, adopting the language that is provided
and adds important rules of as such references are no longer in the Department’s ADA title II
construction to inform that necessary because the regulation now regulation for consistency, and
interpretation. Congress directed that references the EEOC regulation at 29 reorganizing and re-titling some of the
the definition of disability shall be CFR part 1630 with respect to provisions, as appropriate. For instance,
construed broadly and that the discrimination on the basis of disability the provision relating to the prohibition
determination of whether an individual in employment. on retaliation and intimidation at
has a disability should not demand § 42.503(b)(1)(vii) in the current
extensive analysis. 42 U.S.C. 12102. The ‘‘Primary Recipient’’
regulation has been moved to a new
Department proposes to update its The Department proposes to add a section at proposed § 42.510(k). The
section 504 federally assisted regulation definition of ‘‘primary recipient’’ to the Department also proposes to add several
to reflect these changes. regulation. The Department proposes to regulatory provisions that are consistent
‘‘Drug’’ adopt a definition that is substantially with provisions in the Department’s
similar to the definition of ‘‘primary ADA title II regulation and that further
The ADA amended the Rehabilitation illustrate the types of actions that are
Act to include a definition of ‘‘drug.’’ recipient’’ provided in the Department’s
regulation implementing title VI of the prohibited discrimination under section
See ADA sec. 512(b) (codified at 29 504. The Department notes that current
U.S.C. 705(10)). The Department Civil Rights Act, at 28 CFR 42.102(g).
The revised regulation defines ‘‘primary § 42.503(g) (renumbered as § 42.510(l))
proposes to add that definition to its states that ‘‘[t]he enumeration of specific
regulation. recipient’’ as ‘‘any recipient that is
authorized or required to extend Federal forms of prohibited discrimination in
‘‘Facility’’ financial assistance to another this subpart is not exhaustive but only
The Department proposes to revise recipient.’’ illustrative.’’
the existing definition of ‘‘facility’’ to The Department’s current regulation
conform more closely to the definition ‘‘Qualified Individual With a Disability’’ at § 42.503(b)(iv) prohibits a recipient
of ‘‘facility’’ in the Department’s title II from denying ‘‘a qualified [person with
The Department proposes to replace a disability] an equal opportunity to
regulation by including within the the definition of ‘‘qualified handicapped
definition’s scope sites, complexes, participate in the program or activity by
person’’ with ‘‘qualified individual with providing services to the program.’’ This
rolling stock or other conveyances. a disability.’’ With respect to prohibition does not clearly explain
‘‘Historic Properties’’ employment, the proposed definition how a qualified individual with a
The Department proposes to include a incorporates the definition of disability would be denied an equal
definition of ‘‘historic properties’’ that is ‘‘qualified’’ as provided in the EEOC opportunity to participate in a program
substantially similar to that provided in regulation at 29 CFR 1630.2(m), which or activity ‘‘by providing services’’ to
the Department’s title II regulation, 28 implements the employment standards the program. The Department is
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
CFR 35.104. of title I of the ADA, in accordance with proposing to revise this paragraph for
section 503(b) of the 1992 Amendments clarity but is not changing the meaning.
‘‘Illegal Use of Drugs’’ (codified at 29 U.S.C. 791(f)). With The revised paragraph (renumbered as
The Department proposes to replace respect to programs or activities, the § 42.510(b)(1)(v)) states that a recipient
the existing definition of ‘‘drug abuse’’ proposed definition is substantially may not ‘‘[d]eny a qualified individual
with a definition that is substantially similar to the definition of ‘‘qualified with a disability an equal opportunity to
similar to the definition of ‘‘illegal use individual with a disability’’ from the provide services to the program or
of drugs’’ that was added to the Department’s ADA title II regulation, 28 activity.’’ Under this provision, for
Rehabilitation Act by the ADA in 1990. CFR 35.104. example, a recipient that uses
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/5.svg)
![Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules 6393
volunteers to provide services may not The obligation to modify policies, violation of section 504, the court
refuse to allow individuals with practices, or procedures was first stated: ‘‘It should be obvious that the
disabilities to work as volunteers. enunciated by the Supreme Court in administrative costs of implementing
The Department proposes to delete Southeastern Community College v. such a regime would be well beyond the
the provision in the Department’s Davis, 442 U.S. 397 (1979), which held accommodations that are required under
current regulation at § 42.503(b)(5), that while section 504 prohibits the Davis.’’ Id. at 308.
which provides that ‘‘[a] recipient is exclusion of an otherwise qualified Over the past decades, in keeping
prohibited from discriminating on the individual with a disability from with these Supreme Court decisions,
basis of handicap in aid, benefits, or participation in a federally funded Federal courts and Federal agencies
services operating without Federal program solely by reason of the have regularly acknowledged Federal
financial assistance where such action individual’s disability, that person is agencies’ affirmative obligation to
would discriminate against the not protected by section 504 if, in order ensure that recipients provide qualified
handicapped beneficiaries or to meet reasonable eligibility standards, individuals with disabilities reasonable
participants in any program or activity the person needs program or policy accommodations in programs and
of the recipient receiving Federal modifications that would fundamentally activities unless the recipient can
financial assistance.’’ This provision no alter the nature of the provider’s demonstrate that making these
longer appears to be necessary given the program. Because the Davis Court accommodations would fundamentally
expanded definition of ‘‘program or analyzed the case in terms of the proper alter the program or activity or result in
activity’’ provided under the Civil interpretation of the statutory term an undue financial and administrative
Rights Restoration Act, 42 U.S.C. ‘‘otherwise qualified,’’ agency section burden. However, traditionally,
2000d–4a, which, in the case of 504 regulations promulgated agencies’ section 504 regulations have
assistance to a State or local immediately after Davis addressed the lacked a specific provision
government, includes all the operations obligation to provide reasonable implementing this requirement outside
of the department or agency to which accommodations outside of the of the employment arena.7
funding is extended. employment arena by defining The Department notes that title I of
The Department proposes to move the ‘‘qualified handicapped person,’’ as one the ADA also uses the term ‘‘reasonable
requirements in existing § 42.503(e) and who meets the essential eligibility accommodation’’ to apply to the job
(f), which currently address the requirements of the program and who application process, work environment,
recipient’s obligation to ensure effective can achieve the purpose of the program or manner or circumstances under
communication to applicants, or activity without modifications in the which the position held or desired is
employees and beneficiaries, to new program or activity that the agency can customarily performed, and the ability
§ 42.511, which specifically addresses demonstrate would result in a to enjoy equal benefits and privileges of
the recipient’s communication fundamental alteration in its nature. employment. However, the specific
requirements in greater detail, See, e.g., 28 CFR 39.103 (the ADA title I regulatory requirements
consistent with the Department’s title II Department’s section 504 federally related to this term should not be
regulation at 28 CFR 35.160, 35.161, and conducted regulation). applied to non-employment related
35.164. The Department has also Subsequently, in Alexander v. Choate, requests for reasonable accommodations
conformed the language of these 469 U.S. 287 (1985), which addressed a under section 504, and the Department
provisions to the language of the title II section 504 challenge to a State policy proposes to clarify at proposed
regulation. It notes that the definition of reducing the annual number of days of § 42.510(g)(3) that with respect to
‘‘auxiliary aids’’ that is in § 42.503(f) of inpatient hospital care covered by the employment, the definitions and
the existing regulation is replaced by the State’s Medicaid program, the Court standards that apply to ‘‘reasonable
revised definition of ‘‘auxiliary aids and implicitly acknowledged that the accommodation’’ and ‘‘undue hardship’’
services’’ provided in the renumbered obligation to provide reasonable in the EEOC’s regulation implementing
definitional section at proposed accommodations could be considered as title I of the ADA apply to this subpart.
§ 42.503. an affirmative obligation, noting, ‘‘the In addition, when Congress enacted
question of who is ‘otherwise qualified’ the ADA Amendments Act, it expressly
Section 42.510(g)—Reasonable
and what actions constitute provided that a covered entity need not
Accommodations
‘discrimination’ under the section provide a reasonable modification [or
The Department proposes to add a would seem to be two sides of a single accommodation] to policies, practices,
new provision at § 42.510(g)(1) that coin; the ultimate question is the extent or procedures to an individual who
affirmatively states the longstanding to which a grantee is required to make meets the definition of disability under
section 504 obligation to provide reasonable modifications the ‘‘regarded as’’ prong. ADA
reasonable accommodations by making [accommodations] in its programs for Amendments Act, sec. 6(a)(1). While
changes to policies, practices, and the needs of the handicapped.’’ Id. at Congress did not specifically apply this
procedures unless those changes can be 299 n.19. provision of the ADA Amendments Act
shown to pose a fundamental alteration Alexander also introduced the to section 504, the Department believes
to the program or activity or an undue concept of undue financial and that it is equally appropriate to apply
financial and administrative burden.6 administrative burden as a limitation on this limitation to reasonable
the reasonable accommodation
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
accommodations under section 504 and
6 Courts generally have interpreted the obligation
obligation. In responding to the proposes to adopt this limitation at
to provide reasonable accommodations under petitioners’ contention that any
section 504 consistently with the obligation to § 42.510(g)(2) of this regulation.
provide reasonable modifications under title II. See,
durational limitation on inpatient
e.g., Forest City Daly Hous., Inc. v. Town of N. coverage in a State Medicaid plan is a 7 The principle of ‘‘reasonable accommodation’’ is
Hempstead, 175 F.3d 144, 151 (2d Cir. 1999) addressed in agency section 504 regulations with
(analyzing reasonable accommodations in the same and Section 504 offer the same guarantee that a respect to employment. See, e.g., the Department’s
way under the FHA, ADA, and Section 504); Super covered entity . . . must provide reasonable current section 504 federally assisted regulation at
v. J. D’Amelia & Associates, LLC, No. 3:09CV831 accommodations in order to make the entity’s 28 CFR 42.511 and U.S. Department of Health and
SRU, 2010 WL 3926887, at *3 (D. Conn. Sept. 30, benefits and programs accessible to people with Human Services’ section 504 federally assisted
2010) (‘‘The relevant portions of the FHA, ADA, disabilities.’’). regulation at 45 CFR 84.12.
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/6.svg)
![6394 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules
Lastly, the Department notes that the under the Rehabilitation Act and noted revised provisions in a new § 42.511,
necessary reasonable accommodations that despite the differences in and generally conform the language to
will vary based on the need of the authorizing language under the the title II provisions. As mentioned
individual and the impact of the Rehabilitation Act and the ADA, ‘‘[i]t is earlier, the Department has revised the
accommodation on the recipient. Where widely accepted that under both the definitions section of the regulation at
the recipient receives funding from [Rehabilitation Act] and the ADA, non- proposed § 42.503 to include definitions
multiple Federal agencies, each Federal disabled individuals have standing to of the terms ‘‘auxiliary aids and
agency’s particular requirements will bring claims when they are injured services,’’ ‘‘qualified interpreter,’’
also impact the types of reasonable because of their association with a ‘‘qualified reader,’’ and ‘‘video remote
accommodations that a recipient must disabled person.’’ McCullum v. Orlando interpreting (VRI) service.’’ Finally, the
provide. Reg’l Healthcare Sys., Inc., 768 F.3d Department is proposing to remove the
1135, 1142 (11th Cir. 2014) (citing limitation on the obligation to provide
Section 42.510(h)—Prohibition on
cases). Accordingly, the Department is auxiliary aids for recipients with fewer
Surcharges
proposing to add § 42.510(i), which than 15 employees, currently found in
It has been a longstanding principle specifically prohibits a recipient from § 42.503(f).
under both section 504 and the ADA excluding or otherwise denying aid,
that recipients or covered entities may Section 42.511(a)—General Obligation
benefits, or services of its programs or
not charge affected individuals or activities to an individual because of Proposed § 42.511(a) sets forth the
groups for the cost of measures required that individual’s relationship or general obligation (formerly set forth in
to provide an individual or group with association with an individual with a § 42.503(e)) that a recipient take
nondiscriminatory treatment. This known disability. ‘‘appropriate steps to ensure that
principle is already set forth in the communications with applicants,
Department’s title II regulation at 28 Section 42.510(j)—Eligibility Criteria participants, beneficiaries, members of
CFR 35.130(f), and the Department is The Department proposes to add a the public, and companions with
proposing to add it to § 42.510(h) of the new provision at § 42.510(j) that disabilities are as effective as
Department’s section 504 federally prohibits a recipient from imposing or communications with others.’’ This
assisted regulation as well. applying eligibility criteria that screen general obligation parallels the general
out or tend to screen out an individual communications requirement in the
Section 42.510(i)—Prohibition on
with a disability or any class of ADA title II regulation, at 28 CFR
Associational Discrimination
individuals with disabilities from fully 35.160(a)(1). The Department recognizes
The Department’s ADA regulations and equally enjoying any aid, benefit, or that since the Department’s section 504
provide protection for individuals service, unless such criteria can be federally assisted regulation was first
associated with individuals with shown to be necessary for the provision issued in 1980, electronic and
disabilities.8 While the Rehabilitation of the aid, benefit, or service being information technology has changed the
Act does not expressly refer to offered. This principle is already set way that recipients communicate with
individuals associated with individuals forth in the Department’s title II interested persons. Individuals with
with disabilities, it does permit ‘‘any regulation at 28 CFR 35.130(b)(8). The disabilities—like other members of the
person aggrieved by any act or failure to prohibition of the imposition of ‘‘criteria public—should be able to equally
act by any recipient of Federal that ‘tend to’ screen out an individual engage with a recipient’s services,
assistance or Federal provider of such with a disability’’ actually had its programs, and activities using electronic
assistance’’ to bring suit under the origins in the Department of Health and and information technology.
Rehabilitation Act. 29 U.S.C. 794a(a)(2) Human Services’ section 504 regulation Opportunities for such engagement
(emphasis added). Courts have at 45 CFR 84.13 (1991), which was cited require that electronic and information
recognized this provision as providing by the Department in its 1991 title II technology be accessible to ensure that
the basis for associational standing rulemaking. See 28 CFR part 35, app. B, communication with individuals with
56 FR 35694, 35705 (July 26, 1991). disabilities is as effective as
8 Titles I and III of the ADA explicitly forbid
Accordingly, the Department believes communication with others.
discrimination because of the known disability of
an individual with whom the individual is known that it is appropriate to add this
Section 42.511(b)—Auxiliary Aids and
to have a ‘‘relationship or association.’’ 42 U.S.C. provision to the general prohibitions
Services
12112(b)(4), 12182(b)(1)(E). Although title II does against discrimination section.
not have corresponding language, the legislative Proposed § 42.511(b)(1), which tracks
history of the ADA demonstrates Congress’s intent Section 42.511—Communications language in existing § 42.503(f),
to include association within the scope of
discrimination prohibited by title II. The House The Department is proposing to provides that ‘‘[a] recipient shall furnish
Committee on Education and Labor indicated that reorganize and revise its articulation of appropriate auxiliary aids and services
title II’s prohibitions should be ‘‘identical to those recipients’ longstanding obligation to where necessary to afford qualified
set out in the applicable provisions of titles I and
III.’’ H.R. Rep. No. 101–485(II), at 84 (1990),
ensure that communications are individuals with disabilities, including
reprinted in 1990 U.S.C.C.A.N. 303, 367. The House effectively conveyed to individuals with applicants, participants, beneficiaries,
Report went on to indicate that: ‘‘Unlike the other disabilities and to provide appropriate companions, and members of the
titles in this Act, title II does not list all of the forms auxiliary aids and services, using public, an equal opportunity to
of discrimination that the title is intended to
language that generally conforms with participate in, and enjoy the benefits of,
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
prohibit.* * * [T]he Attorney General [is directed]
to issue regulations setting forth the forms of the effective communication provisions a service, program, or activity of a
discrimination prohibited. The Committee intends in the Department’s title II regulation at recipient.’’ Proposed § 42.511(b)(2)
that the regulations under title II incorporate 28 CFR 35.160, 35.161, and 35.164. provides that ‘‘[t]he type of auxiliary aid
interpretations of the term discrimination set forth
in titles I and III of the ADA to the extent that they Specifically, the Department is or service necessary to ensure effective
do not conflict with the Section 504 regulations.’’ proposing to move the provisions communication will vary in accordance
H.R. Rep. No. 101–485(III), at 52 (1990), reprinted addressing communication in the with the method of communication
in 1990 U.S.C.C.A.N. 445, 475. Thus, the
Department’s regulations under both titles II and III
section 504 regulation from the general used by the individual; the nature,
prohibit associational discrimination. See 28 CFR nondiscrimination obligations in length, and complexity of the
35.130(g) and 28 CFR 36.205. current § 42.503(e) and (f), place these communication involved; and the
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/7.svg)
![Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules 6395
context in which the communication is adult agrees, and (3) reliance on the clarify that the VRI image must be
taking place. In determining what types accompanying adult is appropriate positioned so that the individual with a
of auxiliary aids and services are under the circumstances. Under no hearing disability can easily see the
necessary, a recipient entity shall give circumstances may a recipient rely on interpreter on the screen.
primary consideration to the requests of an accompanying adult to interpret Proposed § 42.511(d) states that a
individuals with disabilities. In order to when there is reason to doubt the recipient that provides qualified
be effective, auxiliary aids and services individual’s impartiality or interpreters via VRI services shall
must be provided in accessible formats, effectiveness. ensure that it provides ‘‘[a] sharply
in a timely manner, and in such a way delineated image that is large enough to
Section 42.511(d)—Video Remote display the interpreter’s face, arms,
as to protect the privacy and
Interpreting (VRI) Services hands, and fingers, and the participating
independence of the individual with a
disability.’’ When the Department updated its title individual’s face, arms, hands, and
An example of an auxiliary aid, which II effective communication provisions to fingers, and can be seen by the
would apply in the corrections setting, include performance requirements for participating individual regardless of
would be the provision of videophones VRI, at 28 CFR 35.160(d), the intent was the individual’s body position.’’
or other video-based telecommunication to ensure that if VRI is used, it would
be used in a manner that makes it as Section 42.511(e)—Telecommunications
services to ensure that incarcerated
individuals with disabilities can effective as when sign language Proposed § 42.511(e) incorporates the
communicate as effectively as others interpreters are provided on site. The ADA title II regulatory requirement, at
who use public telephones made Department certainly has recognized 28 CFR 35.161, that where a public
available by the facility. that VRI can be an effective method of entity communicates by telephone with
providing interpreting services in applicants and beneficiaries, text
Section 42.511(c)—Limitations on Use certain circumstances, but not in others. telephones (TTY) or equally effective
of Accompanying Adults or Children as See 75 FR 56164, 56196 (Sept. 15, 2010). telecommunications systems must be
Interpreters For example, VRI should be effective in used to communicate with individuals
Proposed § 42.511(c) includes the many situations involving routine with disabilities. Unlike the
express limitations on the use of medical care, as well as in the corresponding ADA requirement at 28
accompanying adults or children as emergency room where urgent care is CFR 35.161(a), however, § 42.511(e)(1)
interpreters that are specified in the important, but no in-person interpreter eliminates a specific reference to TTYs.
ADA title II rule at 28 CFR 35.160. is available; however, VRI may not be The Department has become aware that
Under section 504, responsibility for effective in situations involving surgery individuals with hearing and speech
providing effective communication, or other medical procedures where the disabilities are increasingly using other
including the use of interpreters, falls patient is limited in his or her ability to forms of telecommunication systems,
directly on recipients, and they may not see the video screen. Similarly, VRI may including cellular phones, videophones,
require an individual to bring someone not be effective in situations where video relays, and internet-based
to serve as an interpreter. Consistent there are multiple people in a room and communication systems, in lieu of
with the ADA provisions, proposed the information exchanged is highly TTYs. Thus, § 42.511(e)(1) provides that
§ 42.511(c) provides that a recipient may complex and fast-paced. The ‘‘[w]here a recipient communicates by
rely on an adult or minor child Department recognizes that in these and telephone with applicants, participants,
companion to interpret only in very other situations, such as where beneficiaries, members of the public,
limited emergency circumstances when communication is needed for persons and companions with disabilities, the
no qualified interpreters are available. who are deaf-blind, it may be necessary recipient shall communicate with
Specifically, proposed § 42.511(c)(2)–(3) to summon an in-person interpreter to individuals who are deaf or hard of
only apply to emergencies involving an assist certain individuals. hearing or have speech disabilities using
‘‘imminent threat to the safety or Since the Department added this telecommunication systems that provide
welfare of an individual or the public.’’ language to its title II regulation, it has equally effective communication.’’
The imminent threat exception is not become aware that some entities subject Additionally, the Department is aware
intended to apply to the typical and to title II, particularly in the medical that individuals with disabilities are
foreseeable emergency situations that environment, have not properly concerned that, in some cases,
are part of the normal operations of evaluated whether VRI is effective in emergency response services lack the
institutions, such as visits to the particular situations, nor have they ability to communicate with individuals
emergency room or responses by law understood that these standards require who use methods of communication
enforcement to situations involving a that the VRI image is actually positioned other than TTYs, such as text messaging
threat to the safety or welfare of an so that it can be seen by the individual or videophones, to communicate
individual or the public. As such, a with a hearing disability. For example, effectively. In July 2010, the Department
recipient may rely on an accompanying in some circumstances, a patient who is issued an Advance Notice of Proposed
individual to interpret or facilitate lying prone while receiving medical Rulemaking on the Accessibility of Next
communication under the proposed treatment may have difficulty seeing the Generation 9–1–1 Services, in which the
§ 42.511(c)(2)–(3) imminent threat image on the screen and thus may be Department made clear its intention to
exception only in truly exigent unable to communicate effectively using modify title II’s telephone emergency
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
circumstances, i.e., where any delay in the remote sign language interpreter. services provision, at 28 CFR 35.162, to
providing immediate services to the Similarly, a pregnant woman who is address these and other changes, and
individual could have life-altering or deaf and who needs to regularly change included a specific reference to video
life-ending consequences. positions while receiving medical relay service as an example of a type of
In nonemergency circumstances, a assistance during labor and delivery relay service. 75 FR 43446 (July 26,
recipient may rely on an adult may not always be able to see the image 2010). Although that regulation has not
companion (but not a minor child) to on the screen. Accordingly, the yet been released, the Department
interpret only when, (1) the individual Department is adding language in its maintains that, under title II’s general
requests this, (2) the accompanying proposed VRI provision to expressly requirement at 28 CFR 35.161(a),
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/8.svg)
![6396 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules
emergency response public safety administrative burdens. Third, the section 504 of the Rehabilitation Act,
answering points always have been Department already has the discretion the determination of whether a person
covered by the general obligation to whether to impose these obligations on with a contagious disease is otherwise
ensure effective communication. recipients with fewer than 15 qualified must be made on an
Similarly, under section 504, recipients’ employees. Finally, given that Congress individualized basis, taking into
provision of emergency response specifically intended that the principles account the: nature of the risk to others
services, like other aid, benefits, or of the ADA guide the policies, practices, (how the disease is transmitted);
services provided by recipients in their and procedures developed under the duration of the risk to others (how long
programs or activities, is covered by the Rehabilitation Act,9 the Department the carrier is infectious); severity of the
overarching obligation to provide believes the removal of this limitation risk to others (what the potential harm
effective communication. better serves the purpose shared by both is to third parties); and probability the
Proposed § 42.511(e)(2) addresses the the ADA and Rehabilitation Act to disease will be transmitted and will
use of automated-attendant systems and enable individuals with disabilities to cause varying degrees of harm to others.
specifies that ‘‘[w]hen a recipient uses ‘‘enjoy full inclusion and integration The Court made it clear that the
an automated-attendant system, into the economic, political, social, individualized inquiry required
including, but not limited to, voice mail cultural, and educational mainstream of appropriate findings of fact about these
and messaging, or an interactive voice American society.’’ 29 U.S.C. 701(a)(3). factors, based on reasonable medical
response system, for receiving and The Department is interested in public judgments given the current state of
directing incoming telephone calls, that comment about its proposal to eliminate medical knowledge. While Arline arose
system must provide effective real-time the fifteen employee threshold for out of allegations that an individual was
communication with individuals using provision of auxiliary aids and services. not ‘‘otherwise qualified’’ under section
auxiliary aids and services, including, 504 because she had a ‘‘contagious
but not limited to TTYs and all forms Section 42.512—Employment
disease’’ that arguably posed a danger to
of FCC-approved telecommunications The Department maintains the the health and safety of others, the
relay systems, including Internet-based prohibition of discrimination in individualized inquiry and the specific
relay systems.’’ In proposed employment against any qualified analysis required by Arline apply to any
§ 42.511(e)(3), the Department proposes individual with a disability and exclusion on the basis of an allegation
a requirement that recipients must proposes to revise § 42.512 to conform that a person with a disability poses a
respond to all types of relay services, to the 1992 Amendments, which ‘‘direct threat’’ to the health or safety of
including video relay services, in the amended title V of the Rehabilitation others, including outside the
same manner that they respond to other Act to apply the same employment communicable disease context. See, e.g.,
telephone calls. This provision tracks standards set forth in title I of the ADA EEOC v. Amego, Inc., 110 F.3d 135, n.6
title II, at 28 CFR 35.161(c), but includes to employment discrimination claims (1st Cir. 1997) (‘‘While the language of
an updated reference to the U.S. Code under section 504. Accordingly, the the ‘direct threat’ provision is not
citation establishing the types of FCC- proposed rule deletes the existing limited to instances where the threat
approved relay services, which include requirements related to discriminatory comes from communicable diseases, the
telephone relay, video relay, and IP employment practices and references provision originated in the
relay. the standards applied under title I of the communicable disease context.’’ (citing
Section 42.511(f)—Limitations ADA, 42 U.S.C. 12111 et seq., the H.R. Rep. No. 101–485 (II), at 76, 1990
EEOC’s title I regulation at 29 CFR part U.S.C.C.A.N. at 358–59)).
Finally, the Department is proposing 1630, and, to the extent such sections
to remove a limitation that currently Congress turned to Arline as the
relate to employment, the provisions of
appears in § 42.503(f). This provision foundation for incorporating the ‘‘direct
sections 501 through 504 and 511 of the
directs that the obligation to provide threat’’ concept into the ADA. See H.R.
ADA, as amended. Note that the
auxiliary aids is mandatory for Rep. No. 101–485 (III), at 45; 42 U.S.C
Department’s regulation at 28 CFR part
recipients with 15 or more employees, 12111(3). The House Report stated:
37 continues to govern the procedures
but indicates that Departmental officials ‘‘While the Arline case involved a
to be followed by the Federal agencies
may require recipients employing fewer contagious disease, * * * the
responsible for processing and resolving
than 15 persons to comply with this reasoning in that case is applicable to
complaints or charges of employment
requirement ‘‘when [compliance] would other circumstances. A person with a
discrimination filed against recipients
not significantly impair the ability of the disability must not be excluded, or
when jurisdiction exists under both
recipient to provide its benefits or found to be unqualified, based on
section 504 and title I of the ADA.
services.’’ The Department is proposing stereotypes or fear.’’ Id. Congress
to remove this limitation for several Section 42.513—Direct Threat conceived of the ‘‘direct threat’’ concept
reasons. First, this limitation is of The Department proposes to add a arising in the context of a challenge to
minimal consequence because the vast new provision at § 42.513 addressing an individual’s qualifications, or
majority of recipients of Federal direct threat to others as a limitation on standing alone as a basis for exclusion.
financial assistance from the the requirement to comply with this The Department’s 1991 section-by-
Department are already required by subpart, in accordance with the ADA. section analysis for the title II regulation
either title II or title III of the ADA to indicated that the incorporation of the
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
The applicability of the ‘‘direct threat’’
provide auxiliary aids or services in concept to section 504 of the Arline ‘‘direct threat’’ concept and
order to ensure effective Rehabilitation Act was first set forth in analysis was essential, ‘‘if the law is to
communication. Second, all recipients, the Supreme Court decision School achieve its goal of protecting disabled
regardless of size, are not required, in Board of Nassau County, Florida v. individuals from discrimination based
providing effective communication, to Arline, 480 U.S. 273 (1987). In Arline, on prejudice, stereotypes, or unfounded
take any action that the recipient can the Supreme Court directed that under fear, while giving appropriate weight to
demonstrate would result in a legitimate concerns, such as the need to
fundamental alteration to the program 9 See S. Rep. 102–357 at 14 (Aug. 3, 1992); H.R. avoid exposing others to significant
or activity or pose undue financial and Rep. 102–822 at 82 (Aug. 10, 1992). health and safety risks.’’ 28 CFR part 35,
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00058 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/9.svg)
![Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules 6397
app. B. The ADA regulatory language for discrimination because of a lack of § 42.521(b)(1), the Department is
titles II and III addresses determinations disability, including a claim that an proposing to update the references to
of ‘‘direct threat[s]’’ at 28 CFR 35.104, individual with a disability was granted the accessibility standards that apply to
36.104 (definitions) and at 28 CFR a reasonable accommodation that was structural changes to buildings and
35.139, 36.208 in a substantially similar denied to an individual without a facilities made for the purposes of
manner. The title II and III regulations disability.’’ This provision is consistent providing program accessibility so that
define ‘‘direct threat’’ as ‘‘a significant with a recent amendment to title V of the section references the 2010 ADA
risk to the health or safety of others that the ADA by section 6 of the ADA Standards for Accessible Design (2010
cannot be eliminated by a modification Amendments Act. See ADA Standards), which the Department is
of policies, practices, or procedures, or Amendments Act, sec. 6 (codified at 42 proposing to adopt in § 42.522 below.
by the provision of auxiliary aids or U.S.C. 12201(g)). While Congress did The Department’s proposed adoption
services * * *.’’ 28 CFR 35.104, 36.104. not expressly apply this provision to of the 2010 Standards as the standard
Consistent with Arline, the regulations section 504 at that time, the Department under section 504 for new construction
set forth evaluative criteria directing believes that in order to maintain and alterations raises the question of
that determinations as to whether an appropriate consistency between title II whether recipients will have to update
individual’s disability constitutes a of the ADA and section 504, this elements in buildings or facilities
direct threat to others must be based on principle should be equally applicable currently compliant with the Uniform
individualized findings of fact that take to the Department’s regulatory Federal Accessibility Standards (UFAS)
into account the nature, duration, and provisions for federally assisted that are not otherwise being altered, in
severity of the risk to others, the programs and activities. order to comply with the 2010
likelihood that injury might occur, and Standards. In order to provide certainty
whether reasonable accommodations Program Accessibility to recipients and individuals with
could mitigate the risk to others. Section 42.521—Existing Facilities disabilities alike, the Department is
Accordingly, the Department is proposing to add a safe harbor provision
proposing to revise its section 504 Section 42.521 addresses the at § 42.521(b)(2), which specifies that
regulation to include language obligations of recipients to operate each ‘‘elements that have not been altered in
addressing a ‘‘direct threat’’ that will be program or activity subject to this existing facilities on or after [INSERT
consistent with the standards subpart so that when viewed in its EFFECTIVE DATE OF THE RULE], and
articulated in Arline and the language in entirety, the program or activity is that comply with the corresponding
the Department’s ADA title II and III readily accessible to and usable by technical and scoping specifications for
regulations. individuals with disabilities. This those elements in the Uniform Federal
Additionally, the Department obligation, which applies to existing Accessibility Standards (UFAS), * * *
proposes to include a new paragraph at facilities, is generally known as are not required to be modified to be
proposed § 42.513(c) that addresses ‘‘program accessibility.’’ The brought into compliance with the
‘‘direct threat’’ in the employment comparable obligation is found in the requirements set forth in the 2010
discrimination context. As provided in ADA title II regulation at 28 CFR 35.150. Standards.’’ This provision is similar to
the definitions section, the applicable The Department is proposing to make the safe harbor provision in the
definition of ‘‘direct threat’’ in the non-substantive changes to certain Department’s ADA title II regulation at
employment discrimination context provisions in § 42.521 in order to 28 CFR 35.150(b)(2)(i).
includes significant risk of substantial conform them to the corresponding
language in the title II regulation, Section 42.521(c)—Small Providers
harm to self. The Department is
therefore proposing to include a including adding a specific provision at The Department’s current regulation
paragraph that provides that an § 42.521(b)(3) to address how a historic at § 42.521(c) provides that ‘‘[i]f a
employer does not have to employ an preservation program shall achieve recipient with fewer than fifteen
individual who would pose a ‘‘direct program accessibility where structural employees finds, after consultation with
threat’’ as that term is defined in the changes would threaten or destroy the [an individual with a disability] seeking
EEOC’s regulation implementing title I historically significant features of a its services, that there is no method of
of the ADA at 29 CFR 1630.2(r) and historic property. Aligning the section complying with § 42.521(a) other than
1630.15(b). 504 provision addressing historic making a significant alteration in its
preservation programs with the title II existing facilities, the recipient may, as
Section 42.514—Illegal Use of Drugs provision will ensure that recipients an alternative, refer the [individual with
The ADA amended the Rehabilitation subject to both the ADA and section 504 a disability] to other available providers
Act to exclude individuals engaging in may follow the same rules with respect of those services that are accessible.’’
illegal drug use from coverage of section to historic preservation. When the Civil Rights Restoration Act
504. See ADA, sec. 512 (codified at 29 In conforming the language of (CRRA) took effect in 1988, it amended
U.S.C. 705(10)). The Department § 42.521 to the corresponding title II section 504 to provide that small
proposes to include a new provision at provision, the Department is also providers are not required ‘‘to make
§ 42.514 that reflects this requirement proposing to add an affirmative significant structural alterations to their
and uses the same language that is set statement to the regulation at existing facilities for the purpose of
forth in the comparable provision in the § 42.521(a)(2) making it clear that the assuring program accessibility, if
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
regulation implementing title II of the longstanding limitations of undue alternative means of providing the
ADA at 28 CFR 35.131. financial and administrative burden and services are available. The terms used in
fundamental alteration apply to the this subsection shall be construed with
Section 42.515—Claims of No Disability obligation to provide program reference to the regulations existing on
In § 42.515, the Department proposes accessibility. See Alexander v. Choate, the date of the enactment of this
to add a new provision stating that 469 U.S. 287 (1985); Se. Cmty. Coll. v. subsection.’’ See Public Law 100–259,
‘‘[n]othing in this subpart shall provide Davis, 442 U.S. 397 (1979). sec. 4 (Mar. 22, 1988), codified at 29
the basis for a claim that an individual The Department is also proposing U.S.C. 794(c). The legislative history of
without a disability was subject to several other revisions to § 42.521. In the CRRA referenced, and explicitly
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00059 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/10.svg)
![6398 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules
affirmed, provisions similar to the refer the individual with a disability to (renumbered as § 42.521(e)(1)) to reflect
proposed § 42.521(c) that existed in alternative providers of available updated terminology describing certain
certain Federal agency section 504 accessible services. The proposed disabilities.
regulations on March 22, 1988, revision further provides that for these Proposed § 42.521(e)(2) clarifies the
including those from the U.S. purposes, in order to ensure that the obligation to provide notice by adding
Department of Agriculture (USDA) and services are available, the small language consistent with the existing
the U.S. Department of Veterans Affairs provider ‘‘must first determine that the title II obligation at 28 CFR 35.163(b)
(VA). See S. Rep. No. 100–64(I) at 23– alternative provider’s services are requiring signs at a primary entrance to
24 (June 5, 1987). The USDA’s section accessible, the alternative provider is each of the recipient’s inaccessible
504 regulation provided (and continue willing to provide the services, the facilities, if any, directing users to an
to provide) that a recipient who is a services are available at no additional accessible facility or a location where
small provider may, as an alternative, cost to the individual with a disability, they can obtain information about
refer an individual with a disability ‘‘to and transportation costs to and from the accessible facilities.
other providers of those services that are alternative provider do not exceed costs
to and from the small provider.’’ As Section 42.522—Program Accessibility
accessible at no additional cost’’ to the
with all providers subject to section 504, in Jails, Detention and Correctional
individual with a disability. 7 CFR
if the cost of making structural changes Facilities, and Community Correctional
15b.18(c). The VA’s section 504
as a means of providing program Facilities
regulation provided (and continue to
provide) that ‘‘[w]here referrals [by accessibility in existing facilities is an The Department is proposing to add a
small providers] are necessary, undue financial and administrative new section entitled ‘‘Program
transportation costs shall not exceed burden, then the small provider is not accessibility in jails, detention and
costs to and from recipients’ programs obligated to make those changes. The correctional facilities, and community
or activities.’’ 38 CFR 18.422(c). The Department notes that in the vast correctional facilities.’’ This section,
legislative history also set forth majority of cases, small providers are which is modeled after the Department’s
expectations about small providers’ also subject either to the program title II regulation at 28 CFR 35.152,
obligations to individuals with accessibility requirements of title II of provides additional guidance about the
disabilities when making their facilities the ADA or the barrier removal specific application of section 504’s
accessible would involve a significant obligation of title III of the ADA. general requirements to these facilities
structural alteration. The legislative Section 42.521(d)—Written Plan operated by or on behalf of recipients of
history cited to the Department of Required for Certain Recipients To Federal financial assistance from the
Health and Human Services’ (HHS) Achieve Program Accessibility Department. While all of the jails,
regulation, noting that under the detention and correctional facilities, and
The Department is proposing to revise community correctional facilities
regulation, small providers may exercise
§ 42.521(d) to clarify that this provision funded by the Department are also
the exception only after determining
only refers to those circumstances public entities subject to the title II
‘‘that the other provider’s program is, in
where a written plan was originally requirements, because the Department
fact, accessible and that the other
required for recipients subject to the provides assistance to so many of the
provider is willing to provide the
rule when it first took effect. The agencies that operate these facilities, it
services.’’ S. Rep. No. 100–64 (I), at 23– Department is proposing to replace all
24 (citing to HHS rule at 45 CFR believes it will be helpful to recipients
references in this section that set
84.22(c)); see 42 FR 22676, 22689 (May to understand that the same
compliance dates for specific
4, 1977). The legislative history further requirements apply under both statutes.
requirements in relation to the
observed that under the regulation, prior The Department has added some
‘‘effective date of this subpart’’ with
to making any referral, the small language that clarifies that the
references to the actual dates when
providers must ensure that there are ‘‘no requirements in this section are in
compliance was required. These
resulting additional obligations to the addition to the general requirements of
changes will maintain continuity of
[individual with a disability].’’ S. Rep. this subpart and intends that this
regulatory requirements by clarifying
No. 100–64 (I), at 23; see 42 FR 22676, section be interpreted consistent with
that the original effective date of the
22689 (May 4, 1977). Referencing the 28 CFR 35.152.
subpart (and other deadlines based on
HHS, VA, and USDA regulations, the this original effective date), and not the Section 42.523—New Construction and
legislative history affirmed that the new date these proposed amendments take Alterations
statutory ‘‘subsection makes it clear that effect, is the operative date for
the special rules now contained in the Section 42.523(a) and (b)—Design and
compliance with this section of the Construction; Alteration
above described regulations are now regulation.
specifically statutorily authorized.’’ S. Section 42.522(a) of the Department’s
Rep. No. 100–64 (I), at 24. Section 42.521(e)—Notice of Location of current regulation requires that, if
The Department is proposing to revise Accessible Facilities construction of a recipient’s facility
its small provider provision to reflect Under § 42.521(e) of the Department’s commenced after the effective date of
Congress’s intent when it revised current regulation, the recipient is the regulation, the facility must be
section 504. Accordingly, the required to adopt and implement designed and constructed so that it is
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
Department proposes to revise procedures to ensure that interested readily accessible to and usable by
§ 42.521(c) to provide that a recipient persons, including persons with various individuals with disabilities. In
with fewer than 15 employees who types of disabilities, can obtain proposed § 42.523(a), the Department
finds, after consultation with an information as to the existence and proposes to replace the reference to the
individual with a disability seeking its location of accessible services, ‘‘effective date of this subpart’’ with
services, that there is no method of activities, and facilities. The Department ‘‘July 3, 1980,’’ which was the date the
complying with § 42.521(a) other than proposes to make a non-substantive Department’s original section 504
making a significant alteration to its revision to the provision on notice of regulation took effect. This will
existing facilities, may, as an alternative, location of accessible facilities maintain continuity of regulatory
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00060 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/11.svg)
![6400 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules
Department expects that maintaining be complete by a State, county, or local U.S.C. 4151–57 (ABA). Facilities that
consistent application of the 2010 government; (2) in those jurisdictions receive Federal financial assistance from
Standards will streamline compliance where the government does not certify the Department are required to comply
for many recipients, particularly those completion of applications, the last with the ABA accessibility standards
that are subject to titles II or III of the application for a building permit or adopted by the General Services
ADA. permit extension is received by the Administration (GSA), which is the
In addition, the Department’s current State, county, or local government; or Federal agency responsible for adopting
section 504 federally assisted regulation (3) if no permit is required, the ABA standards for all buildings subject
at § 42.522(b) allows departures from commencement of physical construction to the ABA except for residential
the requirements of UFAS if the other or alterations. structures; buildings, structures, and
methods used provide ‘‘substantially Similarly, the Department is facilities of the Department of Defense
equivalent or greater access to and proposing that recipients that are (DOD); and buildings, structures and
usability of the building.’’ This concept private entities must comply with the facilities of the U.S. Postal Service
of departure from the accessibility 2010 Standards as of one year from (USPS).14 The U.S. Access Board is the
standards is retained in this regulation publication of this rule in the Federal enforcing authority with respect to
(renumbered as § 42.523(c)(1)(v)), but Register when one of the following complaints under the ABA.
the phrasing is adjusted for consistency events has occurred on or after one year Many, but not all, buildings and
with the title II regulation. from the date of publication of the final facilities used by recipients for their
Lastly, the Department notes that a rule in the Federal Register: (1) The last programs or activities are also covered
recipient that receives funding from application for a building permit or by the ABA. Until recently, UFAS
multiple Federal agencies must ensure permit extension is certified to be served as the applicable accessibility
that it is compliant with the complete by a State, county, or local standard under both section 504
accessibility standards of each agency government; (2) in those jurisdictions federally assisted regulations and the
from which it receives Federal funding. where the government does not certify ABA, and, therefore, facilities that
Section 42.523(c)(2) and (3)—Triggering completion of applications, the last complied with UFAS were also in
Events for Compliance With the application for a building permit or compliance with the ABA. While there
Applicable Accessibility Standards permit extension is received by the is significant overlap between the
State, county, or local government; or current ABA standards and the 2010
As discussed above, the Department is (3) if no permit is required, the Standards, there are a number of
proposing that all recipients must commencement of physical construction differences. Recipients subject to both
comply with the 2010 Standards in lieu or alterations. statutes need to be aware of the
of UFAS one year from the publication For public entities receiving Federal requirements of both accessibility
date of the final rule in the Federal financial assistance from the
Register. In recognition of the fact that standards and need to comply with
Department, the Department is both. Thus, the Department is proposing
buildings and facilities may be in the proposing to use the commencement of
planning, design, or construction phases at § 42.523(c)(4) to add a provision
physical construction or alterations on reminding recipients that ‘‘[n]othing in
for a number of years, the Department or after the publication date of the final
is proposing to specify ‘‘triggering this section relieves recipients whose
rule but before the required compliance facilities are covered by the
events’’ that would determine which date of the 2010 Standards as the
buildings and facilities must comply as Architectural Barriers Act of 1968, as
‘‘triggering event’’ for the choice of amended (42 U.S.C. 4151–4157), from
of the compliance date. The Department standards permitted by § 42.523(c)(1).
is proposing, however, to use different their responsibility of complying with
Similarly, the Department is proposing the requirements of that Act and any
‘‘triggering events’’ for application of the to use the commencement of physical
2010 Standards to new construction and implementing regulations.’’
construction or alterations on or after
alterations for ‘‘public entities’’ that one year from publication of the final Procedures
receive financial assistance from the rule in the Federal Register as the
Department as compared to ‘‘private Section 42.530—Administrative
‘‘triggering event’’ for the requirement to Procedures for Recipients
entities’’ that receive such assistance. comply with the 2010 Standards. This is
These two different categories of consistent with the approach the Certain provisions of § 42.505 of the
‘‘triggering events’’ are based upon the Department took for compliance with existing regulation (renumbered as
‘‘triggering events’’ specified in the the 2010 Standards under title II of the § 42.530) impose administrative
Department’s title II and title III rules at ADA. requirements related to the designation
28 CFR 35.151(c) and 28 CFR 36.406(a), The Department is proposing at of a responsible employee for
respectively. The Department expects § 42.523(c)(3) to add a provision similar compliance with this subpart
that maintaining consistency with the to the language in the ADA regulations (§ 42.505(d) of the current regulation),
ADA requirements in this regard will at 28 CFR 35.151(c)(4) in title II and 28 adoption of grievance procedures
simplify application of the 2010 CFR 36.406(a)(4) in title III that states (§ 42.505(e) of the current regulation),
Standards for recipients already subject that ‘‘ceremonial groundbreaking or and provision of notice of
to either title II or title III. razing of structures prior to site nondiscrimination (§ 42.505(f) of the
Thus, the Department is proposing preparation will not be considered to
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
that recipients that are private entities commence or start physical construction 14 The U.S. Access Board is charged with
may choose either UFAS or the 2010 promulgating accessibility guidelines that form the
or alterations.’’ basis of the ABA standards adopted by GSA,
Standards when one of the following Department of Housing and Urban Development
events has occurred on or after the date 42.523(c)(4)—Compliance With the
(HUD), DOD, and USPS. See 42 U.S.C. 4151 et seq.
of publication of the final rule in the Architectural Barriers Act of 1968 On July 23, 2004, the Access Board published its
Federal Register but before the Facilities designed, built, altered, or final revised ABA Accessibility Guidelines (2004
ABAAS). See 69 FR 44084. In 2005, GSA adopted
compliance date for the 2010 Standards: leased with Federal funds are subject to the 2004 ABAAS as the enforceable standard for
(1) The last application for a building the requirements of the Architectural Federal facilities under its jurisdiction. See 41 CFR
permit or permit extension is certified to Barriers Act of 1968, as amended, 42 102–76.65.
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00062 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/13.svg)
![6402 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules
e.g., a police department or department Finally, the Department proposes to § 42.530. Paragraph (d) established a
of corrections.’’ 45 FR 37620, 37626 replace the reference ‘‘[i]n all other 180-day limitation period from July 3,
(June 3, 1980). Therefore, it was cases’’ with ‘‘[w]hen the Federal 1980, to file complaints of acts of
necessary, for instance, to clarify that financial assistance is not in the form of discrimination that occurred prior to
the assurance applied to the entire real or personal property or July 3, 1980. This provision is no longer
agency or agency of the same improvements’’ to clarify the particular necessary. Similarly, the Department
governmental unit if the policies of the circumstances under which the proposes deleting paragraph (e) because
other agency would affect the assurance continues to apply to the it establishes a procedure for which the
‘‘program’’ (as defined at that time) for recipient during the period for which statute of limitations has long passed
which Federal financial assistance was Federal financial assistance is extended. and is thus no longer necessary.
requested. However, it is no longer The Department also proposes to
Section 42.532—Compliance and
necessary to include that clarification, move its existing provision addressing
Enforcement Procedures
given that the definition of ‘‘program or remedial action from existing
activity’’ that was adopted in 2003 The Department is maintaining the
compliance and enforcement § 42.505(a) to proposed § 42.532(c)
encompasses ‘‘all of the operations of because the requirement for remedial
the entity of a State or local procedures provision from § 42.530 of
its current regulation and has action arises after a finding of
governmental agency or department that discrimination has been made in
distributes the federal assistance to renumbered it as § 42.532. In an effort
to account for future changes in accordance with the procedures set
another State or local governmental forth in this section. The Department
agency or department and all of the organization and to eliminate obsolete
references to some components that no believes that the placement of the
operations of the State or local
longer exist within the Department, the remedial action provision in the
governmental entity to which the
Department proposes to replace the compliance procedures section is a
financial assistance is extended.’’ See 68
references to ‘‘LEAA, NIJ, BJS, OJARS, more logical placement than its current
FR 51334, 51336, 51364 (Aug. 26, 2003).
Additionally, the definition of and OJDDP’’ with the phrase ‘‘a grant- location in the administrative
‘‘program or activity’’ adopted in 2003 making component of the Department.’’ requirements section. The Department
also includes educational institutions, In addition, the Department is also proposes making non-substantive
corporations and other private proposing to revise § 42.530(c) which edits to the existing language.
organization, and plants. The currently provides that ‘‘[i]n the case of Lastly, the Department proposes to
Department is proposing to revise programs or activities funded by LEAA, add a new paragraph at proposed
current § 42.504(c) to ensure that the NIJ, BJS, OJARS, and OJJDP, the refusal § 42.532(d) that directs complaints
applicability of the nondiscrimination to provide requested information under alleging violations of section 504 by
requirements is also addressed with paragraph (a) of this section and [28 recipients of financial assistance from
respect to these entities consistent with CFR] 42.106 will be enforced pursuant the Department to be filed with the
the definition of ‘‘program or activity.’’ to the provisions of section 803(a) of Office of Justice Programs. The Office of
title I of the Omnibus Crime Control and Justice Programs is the entity within the
Section 42.531(b)—Duration of Safe Streets Act’’ as amended (emphasis Department that enforces section 504.
Obligation added). The Department believes that,
The Department’s current section 504 in addition to the termination of funds III. Regulatory Analysis
federally assisted regulation at as a remedy under section 803(a) and its A. Executive Order 13563 and 12866—
§ 42.504(d) provides that ‘‘[w]here the successor statute, 42 U.S.C. 3783, the Regulatory Planning and Review
Federal financial assistance is to Department should also have the
provide or is in the form of real or discretion to consider, where This NPRM has been drafted in
personal property, the assurance will appropriate, a more measured response accordance with Executive Order 13563
obligate the recipient and any transferee to a recipient’s refusal to provide of January 18, 2011, 76 FR 3821,
for the period during which the requested information and therefore, Improving Regulation and Regulatory
property is being used for the purpose should be able to avail itself of ‘‘the Review, and Executive Order 12866 of
for which the Federal financial remedies, procedures and rights set September 30, 1993, 58 FR 51735,
assistance is extended or for another forth in title VI of the Civil Rights Act Regulatory Planning and Review.
purpose involving the provisions of of 1964 * * * available to any person Executive Order 13563 directs agencies,
similar benefits, or for as long as the aggrieved by any act or failure to act by to the extent permitted by law, to
recipient retains ownership or any recipient of Federal assistance,’’ propose or adopt a regulation only upon
possession of the property, whichever is consistent with the Rehabilitation Act. a reasoned determination that its
longer. In all other cases the assurance See 29 U.S.C. 794a(a)(2). Accordingly, benefits justify its costs; tailor the
will obligate the recipient for the period the Department proposes to revise regulation to impose the least burden on
during which Federal financial § 42.530(c) of the existing regulation society, consistent with obtaining the
assistance is extended.’’ The (renumbered as § 42.532(a)(2)) to read regulatory objectives; and, in choosing
Department proposes several ‘‘[i]n the case of programs or activities among alternative regulatory
clarifications to the duration of funded by a grant-making component of approaches, select those approaches that
obligation requirement. First, the the Department, the refusal to provide maximize net benefits. Executive Order
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
Department proposes to have the access to sources of information 13563 recognizes that some benefits and
assurance apply to improvements pursuant to 28 CFR 42.106(c) may be costs are difficult to quantify and
provided by Federal financial aid and enforced using the procedures cited in provides that, where appropriate and
assistance, in addition to real or paragraph (a)(i) of this section or using permitted by law, agencies may
personal property. Second, the the provisions of section 803(a) of title consider and discuss qualitatively
Department proposes to reference the I of the Omnibus Crime Control and values that are difficult or impossible to
provision of federally assisted services, Safe Streets Act’’ as amended (emphasis quantify, including equity, human
in addition to benefits, as a determinant added). The Department proposes to dignity, fairness, and distributive
of the duration of assurance obligations. delete paragraphs (d) and (e) of existing impacts.
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00064 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/15.svg)
![6404 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules
The Department is interested in may be subject to the ADA’s religious information provided in the
public comment on whether its exemption qualify as ‘‘small introductory section of this proposed
assumptions are correct as to the organizations’’ and would be affected by rule entitled, FOR FURTHER INFORMATION
following: (1) The number of recipients the incremental changes in the CONTACT.
that fall within the ADA exemption for accessibility standards and the
religious organizations or organizations elimination of the 15-employee E. Paperwork Reduction Act
controlled by religious organizations; (2) threshold for the requirement to provide This proposed rule does not contain
how many subrecipients funded by OJP auxiliary aids and services, the any new or revised ‘‘collection[s] of
may fall within the ADA religious Department believes that the number of information’’ as defined by the
exemption; 3) how many of these small entities affected by this rule, Paperwork Reduction Act of 1995. 44
recipients also have fewer than 15 compared to the thousands of recipients U.S.C. 3501 et seq.
employees and whether this particular funded by the Department’s grant-
provision should have a compliance making components does not constitute F. Unfunded Mandates Reform Act
date later than the general effective date a ‘‘significant number of small entities’’ Section 4(2) of the Unfunded
of the rule; and 4) the costs to affected by this rule. The Department is Mandates Reform Act of 1995, 2 U.S.C.
individual recipients not being interested in public comment on its 1503(2), excludes from coverage under
significant. The Department believes assumptions about the impact of the that Act any proposed or final Federal
that the costs of this rule will be revisions to its section 504 regulation on regulation that ‘‘establishes or enforces
significantly less than $100 million in small entities that receive Federal any statutory rights that prohibit
any given year. The Department is financial assistance from the discrimination on the basis of race,
interested in public comment on its Department. color, religion, sex, national origin, age,
assumptions that the costs of this rule handicap, or disability.’’ Accordingly,
C. Executive Order 13132: Federalism
will be significantly less than $100 this rulemaking is not subject to the
million in any given year. Executive Order 13132 directs that, to provisions of the Unfunded Mandates
the extent practicable and permitted by Reform Act.
B. Regulatory Flexibility Act law, an agency shall not promulgate any
The Attorney General, in accordance regulation that has federalism List of Subjects for 28 CFR Part 42
with the Regulatory Flexibility Act, 5 implications, that imposes substantial Administrative practice and
U.S.C. 605(b), has reviewed this direct compliance costs on State and procedure, Buildings and facilities, Civil
regulation, and by approving it certifies local governments, that is not required rights, Communications, Grant
that it will not have a significant by statute, or that preempts State law, programs, Individuals with disabilities,
economic impact on a substantial unless the agency meets the Reporting and recordkeeping
number of small entities. With the consultation and funding requirements requirements.
exception of the updated accessibility of section 6 of the Executive Order.
standard, the substantive changes to the Because each change proposed by this By the authority vested in me as
section 504 regulation reflect the rule does not have federalism Attorney General by law, including 5
Department’s incorporation of implications as defined in the Executive U.S.C. 301, 28 U.S.C. 509, 510, 29 U.S.C.
definitions and requirements arising out Order, does not impose direct 794, Executive Order 12250, part 42 of
of statutory amendments to the compliance costs on State and local title 28 of the Code of Federal
Rehabilitation Act and longstanding governments, is required by statute, or Regulations is proposed to be amended
Supreme Court decisions. Moreover, the does not preempt State law within the as follows:
Department’s adoption of the 2010 meaning of the Executive Order, the PART 42—NONDISCRIMINATION;
Standards as the updated accessibility Department has concluded that EQUAL EMPLOYMENT OPPORTUNITY;
standard under section 504 will have compliance with the requirements of
POLICIES AND PROCEDURES
the effect of simplifying the obligations section 6 is not necessary.
of its recipients and should not result in ■ 1. Revise Subpart G to read as follows:
D. Plain Language Instructions
any additional costs since the vast
majority of its recipients are already The Department makes every effort to Subpart G—Nondiscrimination Based
required to comply with the 2010 promote clarity and transparency in its on Disability in Federally Assisted
Standards because they are either State rulemaking. In any regulation, there is a Programs or Activities—
or local governments covered by title II tension between drafting language that Implementation of Section 504 of the
of the ADA or public accommodations is simple and straightforward and Rehabilitation Act of 1973
subject to title III of the ADA. The drafting language that gives full effect to
harmonization of the section 504 issues of legal interpretation. The Sec.
accessibility requirements with the ADA Department is proposing a number of General
requirements will result in recipients changes to this regulation to enhance its
§ 42.501 Purpose.
being subject to only one accessibility clarity and satisfy the plain language § 42.502 Application, broad coverage, and
standard (the 2010 Standards) instead of requirements, including revising the relationship to other laws.
two. Additionally, the conformance of organizational scheme and adding § 42.503 Definitions.
section 504’s regulatory provisions with headings to make it more user-friendly. §§ 42.504–42.509 [Reserved]
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
existing comparable provisions The Department operates a toll-free
General Nondiscrimination Requirements
implementing title II of the ADA will ADA Information Line (800) 514–0301
not result in any additional costs for the (voice) and (800) 514–0383 (TTY) that § 42.510 General prohibitions against
vast majority of recipients funded by the the public is welcome to call to obtain discrimination.
§ 42.511 Communications. SECTNO≤
Department. Lastly, the rule does not assistance in understanding anything in § 42.512 Employment.
include reporting requirements and this proposed rule. If any commenter § 42.513 Direct threat.
imposes no new recordkeeping has suggestions for how the regulation § 42.514 Illegal use of drugs.
requirements. Even if the Department could be written more clearly, please § 42.515 Claims of no disability.
assumed that all of the recipients that provide comments using the contact § 42.516–42.519 [Reserved]
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00066 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/17.svg)
![Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules 6405
Program Accessibility whether entities covered under section delivered information available to
§ 42.520 Discrimination prohibited. 504 have complied with their individuals who are deaf or hard of
§ 42.521 Existing facilities. obligations and whether discrimination hearing.
§ 42.522 Program accessibility in jails, has occurred, not whether the (2) Qualified readers; taped texts;
detention and correctional facilities, and individual meets the definition of audio recordings; Brailled materials and
community correctional facilities. ‘‘disability.’’ The question of whether an displays; screen reader software;
§ 42.523 New construction and alterations. individual meets the definition of magnification software; optical readers;
§§ 42.524–42.529 [Reserved]
‘‘disability’’ should not demand secondary auditory programs (SAP);
Procedures extensive analysis. large print materials; accessible
§ 42.530 Administrative procedures for (c) Relationship to other laws. electronic and information technology;
recipients. (1) The obligation to comply with this or other effective methods of making
§ 42.531 Assurances required. subpart is not obviated by or otherwise visually delivered materials available to
§ 42.532 Compliance and enforcement affected by the existence of any State or individuals who are blind or have low
procedures. local law or other requirement that, on vision;
§ 42.533–42.539 [Reserved] the basis of disability, imposes (3) Acquisition or modification of
Appendix—Appendix A to Subpart G of Part prohibitions or limits upon the
42—Federal Financial Assistance equipment or devices; and
Administered by the Department of
eligibility of qualified individuals with (4) Other similar services and actions.
Justice to Which This Subpart Applies. disabilities to receive aid, benefits, or Component means any specific
Appendix—Appendix B to Subpart G of Part services or to practice any occupation or division, operating bureau, or other
42 [Reserved]. profession. organizational unit of the Department of
Appendix—Appendix C to Subpart G of Part (2) This subpart does not invalidate or Justice.
42—Department Regulations Under Title limit the remedies, rights, and Current illegal use of drugs means
VI of the Civil Rights Act of 1964 (28 procedures of any other Federal law, or illegal use of drugs that occurred
CFR 42.106–42.110) Which Apply to State or local law (including State
This Subpart
recently enough to justify a reasonable
common law), that provide greater or belief that a person’s drug use is current
Appendix—Appendix C to Subpart G of Part
equal protection for the rights of or that continuing use is a real and
42—OJARS’ Regulations Under the
Omnibus Crime Control and Safe Streets individuals with disabilities or ongoing problem.
Act, as Amended, Which Apply to This individuals associated with them. Department means the Department of
Subpart (28 CFR 42.205 and 42.206) Justice, including each of its specific
§ 42.503 Definitions.
Authority: 5 U.S.C. 301; 28 U.S.C. 509, divisions, operating bureaus, and other
As used in this subpart the term—
510; 29 U.S.C. 794; E.O. 12250. 2004 ADAAG means the requirements organizational units.
set forth in appendices B and D to 36 Direct threat means
General (1) With respect to any aid, benefit, or
CFR part 1191 (2009).
§ 42.501 Purpose. 2010 Standards means the 2010 ADA service provided under a program or
The purpose of this subpart is to Standards for Accessible Design, which activity subject to this subpart, a
implement section 504 of the consist of the 2004 ADAAG and the significant risk to the health or safety of
Rehabilitation Act of 1973, as amended, requirements contained in 28 CFR others that cannot be eliminated by a
which prohibits discrimination on the 35.151. modification of policies, practices, or
basis of disability in any program or The Act means the Rehabilitation Act procedures, or by the provision of
activity receiving Federal financial of 1973, Public Law 93–112, as auxiliary aids or services.
assistance. amended, 29 U.S.C. 701 et seq. (2) With respect to employment, the
Applicant means one who submits an term as defined by the Equal
§ 42.502 Application, broad coverage, and application, request, or plan required to Employment Opportunity Commission’s
relationship to other laws. be approved by the designated regulation implementing title I of the
(a) Application. This subpart applies Department official or by a primary Americans with Disabilities Act of 1990,
to each recipient of Federal financial recipient, as a condition to eligibility for at 29 CFR 1630.2(r).
assistance from the Department of Federal financial assistance. Disability has the same meaning as
Justice and to each program or activity Auxiliary aids and services include— given in 28 CFR part 35.
receiving such assistance. The (1) Qualified interpreters on-site or Drug means a controlled substance as
requirements of this subpart do not through video remote interpreting (VRI) defined in schedules I through V of
apply to the ultimate beneficiaries of services; note takers; real-time section 202 of the Controlled Substances
Federal financial assistance in the computer-aided transcription services; Act, 21 U.S.C. 812.
program or activity receiving Federal written materials; exchange of written Facility means all or any portion of
financial assistance. This subpart does notes; telephone handset amplifiers; buildings, structures, sites, complexes,
not apply to programs or activities assistive listening devices; assistive equipment, roads, walks, passageways,
conducted by the Department of Justice. listening systems; telephones parking lots, rolling stock, or other
(b) Broad scope of coverage. compatible with hearing aids; closed conveyances, including the site where
Consistent with the ADA Amendments caption decoders; open and closed the building, property, structure, or
Act’s purpose of reinstating a broad captioning, including real-time equipment is located, or other real or
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
scope of protection under both the captioning; voice, text, and video-based personal property or interest in such
Americans with Disabilities Act and telecommunications products and property.
section 504, the definition of systems, including text telephones Federal financial assistance means
‘‘disability’’ in this subpart shall be (TTYs), videophones, and captioned any grant, cooperative agreement, loan,
construed broadly in favor of expansive telephones, or equally effective contract (other than a direct Federal
coverage to the maximum extent telecommunications devices; videotext procurement contract or a contract of
permitted by the terms of section 504. displays; accessible electronic and insurance or guaranty), subgrant,
The primary object of attention in cases information technology; or other contract under a grant, or any other
brought under this subpart should be effective methods of making aurally arrangement by which the Department
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00067 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/18.svg)
![Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules 6409
knowledge or on the best available disability, including a claim that an (b) Methods. (1) General. A recipient
objective evidence, to ascertain—the individual with a disability was granted may comply with the requirements of
nature, duration, and severity of the a reasonable accommodation that was this section through such means as,
risk; the probability that the potential denied to an individual without a reassignment of services to accessible
injury will actually occur; and whether disability. buildings, assignment of aides to
reasonable accommodations in policies, beneficiaries, home visits, delivery of
Program Accessibility services at alternate accessible sites,
practices, or procedures or the provision
of auxiliary aids or services will § 42.520 Discrimination prohibited. alteration of existing facilities and
mitigate the risk. A recipient shall ensure that no construction of new facilities in
(c) An employer does not have to qualified individual with a disability is conformance with § 42.522, redesign or
employ an individual who would pose denied the benefits of, excluded from acquisition of equipment, use of
a direct threat as that term is defined in participation in, or otherwise subjected accessible rolling stock or other
the Equal Employment Opportunity to discrimination under any program or conveyances, or any other methods that
Commission’s regulation implementing result in making its service, program, or
activity receiving Federal financial
title I of the Americans with Disabilities activity readily accessible to and usable
assistance because the recipient’s
Act of 1990, at 29 CFR 1630.2(r) and by individuals with disabilities. A
facilities are inaccessible to or unusable
1630.15(b). recipient is not required to make
by individuals with a disability.
structural changes in existing facilities
§ 42.514 Illegal use of drugs. § 42.521 Existing facilities. where other methods are effective in
(a) General. Except as provided in (a) Accessibility. A recipient shall achieving compliance with this section.
paragraph (c) of this section, ‘‘Health operate its program or activity so that In choosing among available methods
and drug rehabilitation services,’’ this when each part of the program or for meeting the requirements of this
subpart does not prohibit discrimination activity is viewed in its entirety, it is section, a recipient shall give priority to
against an individual based on that readily accessible to and usable by those methods that serve qualified
individual’s current use of illegal drugs. individuals with disabilities. This individuals with disabilities in the most
(b) Non-discrimination requirement. integrated setting appropriate.
section does not—
A recipient shall not discriminate on the (2) Safe harbor. For the purposes of
(1) Necessarily require a recipient to
basis of illegal use of drugs against an complying with this section, elements
make each of its existing facilities or
individual who is not engaging in that have not been altered in existing
every part of an existing facility
current illegal use of drugs and who— facilities on or after [INSERT
accessible to and usable by individuals
(1) Has successfully completed a EFFECTIVE DATE OF THE RULE], and
with disabilities;
supervised drug rehabilitation program that comply with the corresponding
(2) Require a recipient to take any technical and scoping specifications for
or has otherwise been rehabilitated
action that it can demonstrate would those elements in the Uniform Federal
successfully;
(2) Is participating in a supervised result in a fundamental alteration in the Accessibility Standards (UFAS), 49 FR
rehabilitation program; or nature of a program or activity or in 31528, app. A (Aug. 7, 1984), are not
(3) Is erroneously regarded as undue financial and administrative required to be modified to be brought
engaging in such use. burdens. In those circumstances where into compliance with the requirements
(c) Health and drug rehabilitation the recipient believes that the proposed set forth in the 2010 Standards.
services. (1) A recipient shall not deny action would fundamentally alter the (3) Historic preservation programs. In
health services, or services provided in program or activity or would result in meeting the requirements of this section
connection with drug rehabilitation, to undue financial and administrative in historic preservation programs, a
an individual on the basis of that burdens, the recipient has the burden of recipient shall give priority to methods
individual’s current illegal use of drugs, proving that compliance with that provide physical access to
if the individual is otherwise entitled to § 42.521(a) of this subpart would result individuals with disabilities. In cases
such services. in such alteration or burdens. The where a physical alteration to a historic
(2) A drug rehabilitation or treatment decision that compliance would result property is not required because of
program may deny participation to in such alteration or burdens must be paragraph (a)(2) or (3) of this section,
individuals who engage in illegal use of made by the head of the recipient or the alternative methods of achieving
drugs while they are in the program. head’s designee after considering all program accessibility include—
(d) Drug testing. (1) This subpart does resources available for use in the (i) Using audio-visual materials and
not prohibit a recipient from adopting or funding and operation of the program or devices to depict those portions of an
administering reasonable policies or activity, and must be accompanied by a historic property that cannot otherwise
procedures, including but not limited to written statement of the reasons for be made accessible;
drug testing, designed to ensure that an reaching that conclusion. If an action (ii) Assigning persons to guide
individual who formerly engaged in the required to comply with this section individuals with disabilities into or
illegal use of drugs is not now engaging would result in such an alteration or through portions of historic properties
in current illegal use of drugs. such burdens, a recipient shall take any that cannot otherwise be made
(2) Nothing in paragraph (d)(1) of this other action that would not result in accessible; or
such an alteration or such burdens but (iii) Adopting other innovative
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
section shall be construed to encourage,
prohibit, restrict, or authorize the would nevertheless ensure to the methods.
conducting of testing for the illegal use maximum extent possible, that (c) Small providers. If a recipient with
of drugs. individuals with disabilities receive the fewer than fifteen employees finds, after
benefits or services of the program or consultation with an individual with a
§ 42.515 Claims of no disability. activity; or disability seeking its services, that there
Nothing in this subpart shall provide (3) Require a recipient to take any is no method of complying with
the basis for a claim that an individual action that would threaten or destroy § 42.521(a) other than making a
without a disability was subject to the historically significant features of a significant alteration to its existing
discrimination because of a lack of historic property. facilities, the recipient may, as an
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00071 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/22.svg)
![6410 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules
alternative, refer the individual with a shall be used at each accessible entrance with disabilities, if the construction was
disability to alternative providers of of a facility. commenced after July 3, 1980.
available accessible services. For the (b) Alteration. Each facility or part of
purposes of this paragraph, in order to § 42.522 Program accessibility in jails, a facility, which is altered by, on behalf
detention and correctional facilities, and
ensure that the services are available, of, or for the use of, a recipient after July
community correctional facilities.
the small provider must first determine 3, 1980, in a manner that affects or
that the alternative provider’s services (a) Applicability. This section could affect the usability of the facility
are accessible, the alternative provider specifically applies to a recipient that is or part of the facility shall to the
is willing to provide the services, the responsible for the operation or maximum extent feasible be altered in
services are available at no additional management of adult and juvenile such manner that the altered portion of
cost to the individual with a disability, justice jails, detention and correctional the facility is readily accessible to and
and transportation costs to and from the facilities, and community correctional usable by individuals with a disability.
alternative provider do not exceed costs facilities, either directly or through (c) Accessibility standards,
to and from the small provider. contractual, licensing, or other compliance dates, and triggering events.
arrangements with public or private (1) Applicable accessibility
(d) Written plan required for certain
entities, in whole or in part, including standards—
recipients to achieve program
private correctional facilities. (i) New construction and alterations
accessibility. Recipients subject to this
(b)(1) In addition to the other of buildings or facilities undertaken on
subpart as of October 1, 1980, and
requirements of this subpart, a recipient or after March 7, 1988, but before
required to make structural changes in
shall ensure that qualified inmates or [INSERT DATE OF PUBLICATION OF
order to provide program accessibility,
detainees with disabilities shall not, THE FINAL RULE IN THE Federal
were required to develop, by January 3,
because a facility is inaccessible to or Register] shall comply with the Uniform
1981, a written plan setting forth the
unusable by individuals with Federal Accessibility Standards (UFAS).
steps to be taken to complete the
disabilities, be excluded from (ii) New construction and alterations
changes, together with a schedule for
participation in, or be denied the of buildings or facilities undertaken
making the changes. The plan should
benefits of, the services, programs, or after [INSERT DATE OF PUBLICATION
have been developed with the assistance
activities of a recipient, or be subjected OF THE FINAL RULE IN THE Federal
of interested persons, including
to discrimination by any recipient. Register] but before [INSERT DATE
individuals with disabilities or
(2) A recipient shall ensure that ONE YEAR FROM PUBLICATION
organizations representing individuals
inmates or detainees with disabilities DATE OF THE FINAL RULE IN THE
with disabilities and was to be made
are housed in the most integrated setting Federal Register] must comply with
available for public inspection. The plan
appropriate to the needs of the either UFAS or the 2010 Standards.
should have, at a minimum—
individuals. Unless it is appropriate to (iii) New construction and alterations
(1) Identified physical obstacles in the
make an exception, a recipient— of buildings or facilities undertaken on
recipient’s facilities that limit the (i) Shall not place inmates or or after [INSERT DATE ONE YEAR
accessibility of its program or activity to detainees with disabilities in FROM PUBLICATION DATE OF THE
individuals with disabilities; inappropriate security classifications FINAL RULE IN THE Federal Register]
(2) Described in detail the methods because of their disabilities; must comply with the 2010 Standards.
that would be used to make the facilities (ii) Shall not place inmates or (iv) New construction and alterations
accessible; detainees with disabilities in designated of buildings or facilities undertaken in
(3) Specified the schedule for taking medical areas unless they are actually compliance with the 2010 Standards
the steps necessary to achieve full receiving medical care or treatment; shall comply with the scoping and
accessibility under § 42.521(a) and, if (iii) Shall not place inmates or technical requirements for a ‘‘public
the time period of the transition plan detainees with disabilities in facilities building or facility’’ regardless of
was longer than one year, identified the that do not offer the same aid, benefits, whether the recipient is a public entity
steps that would be taken during each and services as the facilities where they as defined in 28 CFR 35.104 or a private
year of the transition period; and would otherwise be housed; and entity.
(4) Indicated the person responsible (iv) Shall not deprive inmates or (v) Departures from particular
for implementation of the plan. detainees with disabilities of visitation requirements of either standard by the
(e) Notice of location of accessible with family members by placing them in use of other methods shall be permitted
facilities. (1) General. A recipient shall distant facilities where they would not when it is clearly evident that
adopt and implement procedures to otherwise be housed. equivalent access to the facility or part
ensure that interested individuals with (3) A recipient shall implement of the facility is thereby provided.
disabilities, including individuals with reasonable policies, including physical (vi) For purposes of compliance with
an intellectual disability, learning modifications to additional cells in UFAS, section 4.1.6(1)(g) of UFAS shall
disability, vision or hearing disability, accordance with the 2010 Standards, so be interpreted to exempt from the
or other disability, can obtain as to ensure that each inmate with a requirements of UFAS only mechanical
information as to the existence and disability is housed in a cell with the rooms and other spaces that, because of
location of services, activities, and accessible elements necessary to afford their intended use, will not require
facilities that are accessible to and the inmate access to safe, appropriate accessibility to the public or
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
usable by individuals with disabilities. housing. beneficiaries or result in the
(2) Signs at primary entrances. A employment or residence therein of
recipient shall provide signs at a § 42.523 New construction and alterations. persons with physical disabilities.
primary entrance to each of its (a) Design and construction. Each new (2) Triggering events for compliance
inaccessible facilities directing users to facility constructed by, on behalf of, or with accessibility standards. (i) Private
an accessible facility or a location at for the use of a recipient shall be entities. (A) Private entities may choose
which they can obtain information designed and constructed in such a one of the Standards specified in
about accessible facilities. The manner that the facility is readily paragraph (c)(1)(ii) of this section if: The
international symbol for accessibility accessible to and usable by individuals last application for a building permit or
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00072 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/23.svg)
![Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules 6411
permit extension for such construction permit extension for such construction alterations commence after [INSERT
or alterations is certified to be complete or alterations is certified to be complete DATE OF PUBLICATION OF THE
by a State, county, or local government; by a State, county, or local government; FINAL RULE IN THE Federal Register]
or, in those jurisdictions where the or, in those jurisdictions where the but before [INSERT DATE ONE YEAR
government does not certify completion government does not certify completion FROM PUBLICATION DATE OF THE
of applications, the last application for of applications, the last application for FINAL RULE IN THE Federal Register].
a building permit or permit extension is a building permit or permit extension is
(B) Public entities must comply with
received by the State, county, or local received by the State, county, or local
paragraph (c)(1)(iii) of this section if
government; or, where no permit is government; or, in jurisdictions where
new physical construction or alterations
required, physical construction or no permit is required, physical
commence on or after [INSERT DATE
alterations have commenced, on or after construction or alteration has
ONE YEAR FROM PUBLICATION
[INSERT PUBLICATION DATE OF THE commenced, on or after [INSERT DATE
DATE OF THE FINAL RULE IN THE
FINAL RULE IN THE Federal Register] ONE YEAR FROM PUBLICATION
and before [INSERT DATE ONE YEAR DATE OF THE FINAL RULE IN THE Federal Register].
FROM PUBLICATION DATE OF THE Federal Register]. (3) For the purposes of this section,
FINAL RULE IN THE Federal Register]. (ii) Public entities. (A) Public entities ceremonial groundbreaking or razing of
(B) Private entities must comply with may choose one of the Standards structures prior to site preparation will
paragraph (c)(1)(iii) of this section if: the specified in paragraph (c)(1)(ii) of this not be considered to commence or start
last application for a building permit or section if new physical construction or physical construction or alterations.
TABLE OF APPLICABLE STANDARDS FOR COMPLYING WITH 28 CFR 42.522
Applicable standards for complying
Compliance dates for new construction and alterations with 28 CFR 42.522
After March 7, 1988 and before [INSERT DATE OF PUBLICATION OF UFAS.
THE FINAL RULE IN THE FEDERAL REGISTER].
After [INSERT DATE OF PUBLICATION OF THE FINAL RULE IN THE UFAS or the scoping and technical requirements for a ‘‘public building
FEDERAL REGISTER] and before [INSERT DATE ONE YEAR or facility’’ in the 2010 Standards.
FROM PUBLICATION DATE OF THE FINAL RULE IN THE FED-
ERAL REGISTER].
On or after [INSERT DATE ONE YEAR FROM PUBLICATION DATE The scoping and technical requirements in the 2010 Standards for a
OF THE FINAL RULE IN THE FEDERAL REGISTER]. ‘‘public building or facility’’.
(4) Compliance with the Architectural that resulted from adherence to these standards (e.g., adequate notice, fair
Barriers Act of 1968. Nothing in this policies and practices. hearing) and provide for the prompt and
section relieves recipients whose (2) A recipient employing 50 or more equitable resolution of complaints
facilities are covered by the persons and receiving Federal financial alleging any action prohibited by this
Architectural Barriers Act of 1968, as assistance from the Department of subpart except that such procedures
amended (42 U.S.C. 4151–57), from the $25,000 or more was required, for at need not be established with respect to
responsibility of complying with the least three years following completion complaints from applicants for
requirements of that Act and any of the evaluation required under employment. Any individual may file a
implementing regulations. paragraph (c)(1) of this section, to complaint with the Department in
maintain on file, make available for accordance with the procedures at
Procedures public inspection, and provide to the § 42.532 without having first used a
Department on request— recipient’s grievance procedures.
§ 42.530 Administrative procedures for
(i) A list of the interested persons
recipients.
consulted; (e) Notice. (1) A recipient employing
(a) Voluntary action. A recipient may (ii) A description of areas examined 50 or more persons and receiving
and problems identified; and Federal financial assistance from the
take steps, in addition to any action that
(iii) A description of modifications Department of $25,000 or more shall, on
is required by this subpart, to increase
made and remedial steps taken. a continuing basis, notify participants,
the participation of qualified
(c) Designation of responsible beneficiaries, applicants, employees and
individuals with disabilities in the
employee. A recipient employing 50 or unions or professional organizations
recipient’s program or activity.
more persons and receiving Federal holding collective bargaining or
(b) Self-evaluation. (1) A recipient financial assistance from the professional agreements with the
was required, by July 3, 1981, to Department of $25,000 or more shall recipient that it does not discriminate
evaluate and modify its policies and designate at least one person to on the basis of disability in violation of
practices that did not meet the coordinate compliance with this section 504 and this subpart. The
requirements of this subpart. During this subpart. notification shall state, where
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
process, the recipient was required to (d) Adoption of grievance procedures. appropriate, that the recipient does not
seek the advice and assistance of A recipient employing 50 or more discriminate in its programs or activities
interested persons, including persons and receiving Federal financial with respect to access, treatment, or
individuals with disabilities or assistance from the Department of employment. The notification shall also
organizations representing individuals $25,000 or more and receiving Federal include identification of the person
with disabilities. During this period and financial assistance from the responsible for coordinating compliance
thereafter, the recipient was required to Department of $25,000 or more shall with this subpart and where to file
take any necessary remedial steps to adopt grievance procedures that section 504 complaints with the
eliminate the effects of discrimination incorporate appropriate due process Department and, where applicable, with
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00073 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/24.svg)
![Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules 6413
Appendix B to Subpart G of Part 42— apply to local jurisdictions in separate, G. SWCAA 400–052 Stack Sampling of
[Reserved] future actions. If finalized, this Major Combustion Sources
proposed action would approve the H. SWCAA 400–060 Emission Standards
Appendix C to Subpart G of Part 42— for General Process Units
Department Regulations Under Title VI submitted SWCAA general air quality
I. SWCAA 400–070 General
of the Civil Rights Act of 1964 (28 CFR regulations to replace or supplement the Requirements for Certain Source
42.106–42.110) Which Apply to This corresponding Ecology regulations for Categories
Subpart sources in SWCAA’s jurisdiction, J. SWCAA 400–072 Small Unit
including implementation of the minor Notification for Selected Source
Editorial Note: For the text of appendix C, new source review and nonattainment Categories
see §§ 42.106 through 42.110 of this part. new source review permitting programs. K. SWCAA 400–074 Gasoline Transport
This action would also approve a Tanker Registration
L. SWCAA 400–081 Startup and
Appendix D to Subpart G of Part 42— limited subset of Ecology regulations,
Shutdown
OJARS’ Regulations Under the for which there are no corresponding M. SWCAA 400–091 Voluntary Limits on
Omnibus Crime Control and Safe SWCAA corollaries, to apply in Emissions
Streets Act, as Amended, Which Apply SWCAA’s jurisdiction. N. SWCAA 400–100 Registration
to This Subpart (28 CFR 42.205 and DATES: Written comments must be Requirements and SWCAA 400–101
42.206) received on or before February 21, 2017. Emission Units Exempt From
Registration Requirements
Editorial Note: For the text of appendix D, ADDRESSES: Submit your comments, O. SWCAA 400–105 Records, Monitoring
see §§ 42.205 and 42.206 of this part. identified by Docket ID No. EPA–R10– and Reporting
OAR–2016–0784 at http:// P. SWCAA 400–106 Emission Testing
Dated: January 11, 2017. www.regulations.gov. Follow the online and Monitoring at Air Contaminant
Loretta E. Lynch, instructions for submitting comments. Sources
Once submitted, comments cannot be Q. SWCAA 400–109 Air Discharge Permit
Attorney General.
Applications
[FR Doc. 2017–01057 Filed 1–18–17; 8:45 am] edited or removed from Regulations.gov. R. SWCAA 400–110 Application Review
BILLING CODE 4410–13–P The EPA may publish any comment Process for Stationary Sources (New
received to its public docket. Do not Source Review); SWCAA 400–111
submit electronically any information Requirements for New Sources in a
ENVIRONMENTAL PROTECTION you consider to be Confidential Maintenance Plan Area; SWCAA 400–
AGENCY Business Information (CBI) or other 112 Requirements for New Sources in
information whose disclosure is Nonattainment Areas; and SWCAA 400–
40 CFR Part 52 restricted by statute. Multimedia 113 Requirements for New Sources in
submissions (audio, video, etc.) must be Attainment or Nonclassifiable Areas
[EPA–R10–OAR–2016–0784: FRL–9958–41– S. SWCAA 400–114 Requirements for
accompanied by a written comment. Replacement or Substantial Alteration of
Region 10]
The written comment is considered the Emission Control Technology at an
Air Plan Approval; Washington: official comment and should include Existing Stationary Source
General Regulations for Air Pollution discussion of all points you wish to T. SWCAA 400–116 Maintenance of
Sources, Southwest Clean Air Agency make. The EPA will generally not Equipment
Jurisdiction consider comments or comment U. SWCAA 400–130 Use of Emission
contents located outside of the primary Reduction Credits; SWCAA 400–131
AGENCY: Environmental Protection submission (i.e. on the Web, cloud, or Deposit of Emission Reduction Credits
Agency (EPA). other file sharing system). For Into Bank; and SWCAA 400–136
Maintenance of Emission Reduction
ACTION: Proposed rule. additional submission methods, the full Credits in Bank
EPA public comment policy, V. SWCAA 400–151 Retrofit
SUMMARY: The Environmental Protection information about CBI or multimedia Requirements for Visibility Protection
Agency (EPA) is proposing to approve submissions, and general guidance on and SWCAA 400–161 Compliance
revisions to the Washington State making effective comments, please visit Schedules
Implementation Plan (SIP) that were http://www2.epa.gov/dockets/ W. SWCAA 400–171 Public Involvement
submitted by the Washington commenting-epa-dockets. X. SWCAA 400–190 Requirements for
Department of Ecology (Ecology) in Nonattainment Areas; SWCAA 400–200
coordination with Southwest Clean Air FOR FURTHER INFORMATION CONTACT: Jeff Vertical Dispersion Requirement,
Agency (SWCAA) on December 20, Hunt at (206) 553–0256, or hunt.jeff@ Creditable Stack Height and Dispersion
2016. In the fall of 2014 and spring of epa.gov. Techniques; SWCAA 400–205
2015, the EPA approved numerous Adjustment for Atmospheric Conditions;
SUPPLEMENTARY INFORMATION:
and SWCAA 400–210 Emission
revisions to Ecology’s general air quality Throughout this document whenever Requirements of Prior Jurisdictions
regulations. However, our approval of ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, it is Y. SWCAA 400–220 Requirements for
the updated Ecology regulations applied intended to refer to the EPA. Board Members; SWCAA 400–230
only to geographic areas where Ecology, Regulatory Actions and Civil Penalties;
and not a local air agency, has Table of Contents
SWCAA 400–240 Criminal Penalties;
jurisdiction, and statewide to source I. Background for Proposed Action SWCAA 400–250 Appeals; SWCAA
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
categories over which Ecology has sole II. Washington SIP Revisions 400–260 Conflict of Interest; SWCAA
jurisdiction. Under the Washington A. SWCAA 400–010 Policy and Purpose 400–270 Confidentiality of Records and
Clean Air Act, local clean air agencies B. SWCAA 400–020 Applicability Information; and SWCAA 400–280
C. SWCAA 400–030 Definitions Powers of Agency
may adopt equally stringent or more
D. SWCAA 400–036 Portable Sources Z. SWCAA 400–800 Major Stationary
stringent requirements in lieu of From Other Washington Jurisdictions Source and Major Modification in a
Ecology’s general air quality regulations, E. SWCAA 400–040 General Standards Nonattainment Area; SWCAA 400–810
if they so choose. Therefore, the EPA for Maximum Emissions Major Stationary Source and Major
stated that we would evaluate the F. SWCAA 400–050 Emission Standards Modification Definitions; SWCAA 400–
general air quality regulations as they for Combustion and Incineration Units 820 Determining if a New Stationary
VerDate Sep<11>2014 20:40 Jan 18, 2017 Jkt 241001 PO 00000 Frm 00075 Fmt 4702 Sfmt 4702 E:\FR\FM\19JAP1.SGM 19JAP1](https://thefederalregister.org/doc/82_FR_6400/page/26.svg)
Document Created: 2018-02-01 15:15:35
Document Modified: 2018-02-01 15:15:35
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | All comments must be submitted on or before March 20, 2017. | |
| Contact | Rebecca Bond, Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY) (not a toll-free number); or Michael Alston, Director, Office for Civil Rights, Office of Justice Programs, U.S. Department of Justice, at (202) 307-0690 (not a toll-free number). Information may also be obtained from the Department's toll-free ADA Information Line at (800) 514-0301 (voice), or (800) 514-0383 (TTY). | |
| FR Citation | 82 FR 6388 | |
| RIN Number | 1105-AB50 | |
| CFR Associated | Administrative Practice and Procedure; Buildings and Facilities; Civil Rights; Communications; Grant Programs; Individuals with Disabilities and Reporting and Recordkeeping Requirements |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR