[Title 28 CFR 39]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 39 - ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF JUSTICE]
[From the U.S. Government Printing Office]


28JUDICIAL ADMINISTRATION12002-07-012002-07-01falseENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF JUSTICE39PART 39JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 39--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF JUSTICE--Table of Contents




Sec.
39.101  Purpose.
39.102  Application.
39.103  Definitions.
39.104-39.109  [Reserved]
39.110  Self-evaluation.
39.111  Notice.
39.112-39.129  [Reserved]
39.130  General prohibitions against discrimination.
39.131-39.139  [Reserved]
39.140  Employment.
39.141-39.148  [Reserved]

[[Page 727]]

39.149  Program accessibility: Discrimination prohibited.
39.150  Program accessibility: Existing facilities.
39.151  Program accessibility: New construction and alterations.
39.152-39.159  [Reserved]
39.160  Communications.
39.161-39.169  [Reserved]
39.170  Compliance procedures.

    Authority: 29 U.S.C. 794.

    Source: Order No. 1065-84, 49 FR 35734, Sept. 11, 1984, unless 
otherwise noted.



Sec. 39.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the U.S. Postal Service.



Sec. 39.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 39.103  Definitions.

    For purposes of this part, the term--
    Agency means the Department of Justice.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, U.S. Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complaint Adjudication Officer means the Complaint Adjudication 
Officer appointed by the Assistant Attorney General for Civil Rights.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitorurinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
and drug addiction and alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially

[[Page 728]]

limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    Official or Responsible Official means the Director of Equal 
Employment Opportunity for the Department of Justice or his or her 
designee.
    Qualified handicapped person means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature; or
    (2) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    Respondent means the organizational unit in which a complainant 
alleges that discrimination occurred.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.



Secs. 39.104-39.109  [Reserved]



Sec. 39.110  Self-evaluation.

    (a) The agency shall, by October 11, 1985, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until October 11, 1987, maintain on file and 
make available for public inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 39.111  Notice.

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



Secs. 39.112-39.129  [Reserved]



Sec. 39.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--

[[Page 729]]

    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person 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 handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activites in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Secs. 39.131-39.139  [Reserved]



Sec. 39.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.

[[Page 730]]



Secs. 39.141-39.148  [Reserved]



Sec. 39.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 39.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 39.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 39.150(a) would result in such 
alterations or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the Attorney General or his 
or her designee after considering all agency resources available for use 
in the funding and operation of the conducted program or activity, and 
must be accompanied by a written statement of the reasons for reaching 
that conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
handicapped persons. The agency is not required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. The agency, in making 
alterations to existing buildings, shall meet accessibility requirements 
to the extent compelled by the Architectural Barriers Act of 1968, as 
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In 
choosing among available methods for meeting the requirements of this 
section, the agency shall give priority to those methods that offer 
programs and activities to qualified handicapped persons in the most 
integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by December 10, 1984, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by October 11, 1987, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by April 11, 1985, a transition plan setting forth 
the steps necessary to complete such changes. The agency shall provide 
an opportunity to interested persons, including handicapped persons or 
organizations representing handicapped persons, to participate in the 
development of the transition by submitting comments (both oral and 
written). A copy of the tansition plan shall be made available for 
public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;

[[Page 731]]

    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 39.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 
CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Secs. 39.152-39.159  [Reserved]



Sec. 39.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 39.160 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the Attorney General or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons receive the benefits and services 
of the program or activity.



Secs. 39.161-39.169  [Reserved]



Sec. 39.170  Compliance procedures.

    (a) Applicability. Except as provided in paragraph (b) of this 
section, this section applies to all allegations of discrimination on 
the basis of handicap in programs or activities conducted by the agency.
    (b) Employment complaints. The agency shall process complaints 
alleging violations of section 504 with respect to employment according 
to the procedures established by the Equal Employment Opportunity 
Commission in 29 CFR part 1613 pursuant to section 501

[[Page 732]]

of the Rehabilitation Act of 1973 (29 U.S.C. 791).
    (c) Responsible Official. The Responsible Official shall coordinate 
implementation of this section.
    (d) Filing a complaint--(1) Who may file. (i) Any person who 
believes that he or she has been subjected to discrimination prohibited 
by this part may by him or herself or by his or her authorized 
representative file a complaint with the Official. Any person who 
believes that any specific class of persons has been subjected to 
discrimination prohibited by this part and who is a member of that class 
or the authorized representative of a member of that class may file a 
complaint with the Official.
    (ii) Before filing a complaint under this section, an inmate of a 
Federal penal institution must exhaust the Bureau of Prisons 
Administrative Remedy Procedure as set forth in 28 CFR part 542.
    (2) Confidentiality. The Official shall hold in confidence the 
identity of any person submitting a complaint, unless the person submits 
written authorization otherwise, and except to the extent necessary to 
carry out the purposes of this part, including the conduct of any 
investigation, hearing, or proceeding under this part.
    (3) When to file. Complaints shall be filed within 180 days of the 
alleged act of discrimination, except that complaints by inmates of 
Federal penal institutions shall be filed within 180 days of the final 
administrative decision of the Bureau of Prisons under 28 CFR part 542. 
The Official may extend this time limit for good cause shown. For 
purposes of determining when a complaint is timely filed under this 
subparagraph, a complaint mailed to the agency shall be deemed filed on 
the date it is postmarked. Any other complaint shall be deemed filed on 
the date it is received by the agency.
    (4) How to file. Complaints may be delivered or mailed to the 
Attorney General, the Responsible Official, or agency officials. 
Complaints should be sent to the Director for Equal Employment 
Opportunity, U.S. Department of Justice, 10th and Pennsylvania Avenue, 
NW., Room 1232, Washington, DC 20530. If any agency official other than 
the Official receives a complaint, he or she shall forward the complaint 
to the Official immediately.
    (e) Notification to the Architectural and Transportation Barriers 
Compliance Board. The agency shall promptly send to the Architectural 
and Transportation Barriers Compliance Board a copy of any complaint 
alleging that a building or facility that is subject to the 
Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or 
section 502 of the Rehabilitation Act, as amended (29 U.S.C. 792), is 
not readily accessible to and usable by handicapped persons. The agency 
shall delete the identity of the complainant from the copy of the 
complaint.
    (f) Acceptance of complaint. (1) The Official shall accept a 
complete complaint that is filed in accordance with paragraph (d) of 
this section and over which the agency has jurisdiction. The Official 
shall notify the complainant and the respondent of receipt and 
acceptance of the complaint.
    (2) If the Official receives a complaint that is not complete, he or 
she shall notify the complainant, within 30 days of receipt of the 
incomplete complaint, that additional information is needed. If the 
complainant fails to complete the complaint within 30 days of receipt of 
this notice, the Official shall dismiss the complaint without prejudice.
    (3) If the Official receives a complaint over which the agency does 
not have jurisdiction, the Official shall promptly notify the 
complainant and shall make reasonable efforts to refer the complaint to 
the appropriate Government entity.
    (g) Investigation/conciliation. (1) Within 180 days of the receipt 
of a complete complaint, the Official shall complete the investigation 
of the complaint, attempt informal resolution, and, if no informal 
resolution is achieved, issue a letter of findings.
    (2) The Official may require agency employees to cooperate in the 
investigation and attempted resolution of complaints. Employees who are 
required by the Official to participate in any investigation under this 
section shall do so as part of their official duties and during the 
course of regular duty hours.

[[Page 733]]

    (3) The Official shall furnish the complainant and the respondent a 
copy of the investigative report promptly after receiving it from the 
investigator and provide the complainant and respondent with an 
opportunity for informal resolution of the complaint.
    (4) If a complaint is resolved informally, the terms of the 
agreement shall be reduced to writing and made part of the complaint 
file, with a copy of the agreement provided to the complainant and 
respondent. The written agreement may include a finding on the issue of 
discrimination and shall describe any corrective action to which the 
complainant and respondent have agreed.
    (h) Letter of findings. If an informal resolution of the complaint 
is not reached, the Official shall, within 180 days of receipt of the 
complete complaint, notify the complainant and the respondent of the 
results of the investigation in a letter sent by certified mail, return 
receipt requested, containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found;
    (3) A notice of the right of the complainant and respondent to 
appeal to the Complaint Adjudication Officer; and
    (4) A notice of the right of the complainant and respondent to 
request a hearing.
    (i) Filing an appeal. (1) Notice of appeal to the Complaint 
Adjudication Officer, with or without a request for hearing, shall be 
filed by the complainant or the respondent with the Responsible Official 
within 30 days of receipt from the Official of the letter required by 
paragraph (h) of this section.
    (2) If a timely appeal without a request for hearing is filed by a 
party, any other party may file a written request for hearing within the 
time limit specified in paragraph (i)(1) of this section or within 10 
days of the date on which the first timely appeal without a request for 
hearing was filed, whichever is later.
    (3) If no party requests a hearing, the Responsible Official shall 
promptly transmit the notice of appeal and investigative record to the 
Complaint Adjudication Officer.
    (4) If neither party files an appeal within the time prescribed in 
paragraph (i)(1) of this section, the Responsible Official shall certify 
that the letter of findings is the final agency decision on the 
complaint at the expiration of that time.
    (j) Acceptance of appeal. The Responsible Official shall accept and 
process any timely appeal. A party may appeal to the Complaint 
Adjudication Officer from a decision of the Official that an appeal is 
untimely. This appeal shall be filed within 15 days of receipt of the 
decision from the Official.
    (k) Hearing. (1) Upon a timely request for a hearing, the 
Responsible Official shall appoint an administrative law judge to 
conduct the hearing. The administrative law judge shall issue a notice 
to all parties specifying the date, time, and place of the scheduled 
hearing. The hearing shall be commenced no earlier than 15 days after 
the notice is issued and no later than 60 days after the request for a 
hearing is filed, unless all parties agree to a different date.
    (2) The complainant and respondent shall be parties to the hearing. 
Any interested person or organization may petition to become a party or 
amicus curiae. The administrative law judge may, in his or her 
discretion, grant such a petition if, in his or her opinion, the 
petitioner has a legitimate interest in the proceedings and the 
participation will not unduly delay the outcome and may contribute 
materially to the proper disposition of the proceedings.
    (3) The hearing, decision, and any administrative review thereof 
shall be conducted in conformity with 5 U.S.C. 554-557 (sections 5-8 of 
the Administrative Procedure Act). The administrative law judge shall 
have the duty to conduct a fair hearing, to take all necessary action to 
avoid delay, and to maintain order. He or she shall have all powers 
necessary to these ends, including (but not limited to) the power to--
    (i) Arrange and change the date, time, and place of hearings and 
prehearing conferences and issue notice thereof;
    (ii) Hold conferences to settle, simplify, or determine the issues 
in a hearing, or to consider other matters that

[[Page 734]]

may aid in the expeditious disposition of the hearing;
    (iii) Require parties to state their position in writing with 
respect to the various issues in the hearing and to exchange such 
statements with all other parties;
    (iv) Examine witnesses and direct witnesses to testify;
    (v) Receive, rule on, exclude, or limit evidence;
    (vi) Rule on procedural items pending before him or her; and
    (vii) Take any action permitted to the administrative law judge as 
authorized by this part or by the provisions of the Administrative 
Procedure Act (5 U.S.C. 551-559).
    (4) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this paragraph, but rules or principles designed 
to assure production of credible evidence and to subject testimony to 
cross-examination shall be applied by the administrative law judge 
whenever reasonably necessary. The administrative law judge may exclude 
irrelevant, immaterial, or unduly repetitious evidence. All documents 
and other evidence offered or taken for the record shall be open to 
examination by the parties, and opportunity shall be given to refute 
facts and arguments advanced on either side of the issues. A transcript 
shall be made of the oral evidence except to the extent the substance 
thereof is stipulated for the record. All decisions shall be based upon 
the hearing record.
    (5) The costs and expenses for the conduct of a hearing shall be 
allocated as follows:
    (i) Persons employed by the agency, shall, upon request to the 
agency by the administrative law judge, be made available to participate 
in the hearing and shall be on official duty status for this purpose. 
They shall not receive witness fees.
    (ii) Employees of other Federal agencies called to testify at a 
hearing shall, at the request of the administrative law judge and with 
the approval of the employing agency, be on official duty status during 
any period of absence from normal duties caused by their testimony, and 
shall not receive witness fees.
    (iii) The fees and expenses of other persons called to testify at a 
hearing shall be paid by the party requesting their appearance.
    (iv) The administrative law judge may require the agency to pay 
travel expenses necessary for the complainant to attend the hearing.
    (v) The respondent shall pay the required expenses and charges for 
the administrative law judge and court reporter.
    (vi) All other expenses shall be paid by the party, the intervening 
party, or amicus curiae incurring them.
    (6) The administrative law judge shall submit in writing recommended 
findings of fact, conclusions of law, and remedies to all parties and 
the Complaint Adjudication Officer within 30 days after receipt of the 
hearing transcripts, or within 30 days after the conclusion of the 
hearing if no transcript is made. This time limit may be extended with 
the permission of the Complaint Adjudication Officer.
    (7) Within 15 days after receipt of the recommended decision of the 
administrative law judge, any party may file exceptions to the decision 
with the Complaint Adjudication Officer. Thereafter, each party will 
have ten days to file reply exceptions with the Officer.
    (l) Decision. (1) The Complaint Adjudication Officer shall make the 
decision of the agency based on information in the investigative record 
and, if a hearing is held, on the hearing record. The decision shall be 
made within 60 days of receipt of the transmittal of the notice of 
appeal and investigative record pursuant to Sec. 39.170(i)(3) or after 
the period for filing exceptions ends, whichever is applicable. If the 
Complaint Adjudication Officer determines that he or she needs 
additional information from any party, he or she shall request the 
information and provide the other party or parties an opportunity to 
respond to that information. The Complaint Adjudication Officer shall 
have 60 days from receipt of the additional information to render the 
decision on the appeal. The Complaint Adjudication Officer shall 
transmit his or her decision by letter to the parties. The decision 
shall set forth the findings, remedial action required, and reasons for 
the decision. If

[[Page 735]]

the decision is based on a hearing record, the Complaint Adjudication 
Officer shall consider the recommended decision of the administrative 
law judge and render a final decision based on the entire record. The 
Complaint Adjudication Officer may also remand the hearing record to the 
administrative law judge for a fuller development of the record.
    (2) Any respondent required to take action under the terms of the 
decision of the agency shall do so promptly. The Official may require 
periodic compliance reports specifying--
    (i) The manner in which compliance with the provisions of the 
decision has been achieved;
    (ii) The reasons any action required by the final decision has not 
yet been taken; and
    (iii) The steps being taken to ensure full compliance.

The Complaint Adjudication Officer may retain responsibility for 
resolving disagreements that arise between the parties over 
interpretation of the final agency decision, or for specific 
adjudicatory decisions arising out of implementation.

    Editorial Note: For the convenience of the user, the ``Supplementary 
Information'' portion of the document published at 49 FR 35724, Sept. 
11, 1984, is set forth below:


SUPPLEMENTARY INFORMATION: On December 16, 1983, the Department of 
Justice published a Notice of Proposed Rulemaking (NPRM) for the 
enforcement of section 504 of the Rehabilitation Act of 1973, as 
amended, which prohibits discrimination on the basis of handicap, as it 
applies to programs and activities conducted by the Department of 
Justice. 48 FR 55996. Shortly after the NPRM was published, the 
Department received a number of preliminary comments from handicapped 
individuals and from organizations representing handicapped individuals. 
The tone and nature of these comments indicated to the Department that 
some of the regulatory provisions of the NPRM were being misunderstood. 
As a result, the Department, on March 1, 1984, published a Supplementary 
Notice further explaining the NPRM and requesting comments on possible 
revisions to the original NPRM. 49 FR 7792.

    By April 16, 1984, close of the comment period, the Department 
received 1,194 comments. Two hundred and six of these comments also 
addressed the supplemental notice. Over 90% of the comments that the 
Department received came from individuals (908), most frequently 
handicapped persons, and from organizations representing the interests 
of handicapped persons (180). The Department received comments from all 
fifty states, the District of Columbia, Puerto Rico, Canada, and 
Denmark. Most of the comments that the Department received were general 
in nature. The Department received 721 comments based on a form letter. 
This form letter, written before issuance of the Supplemental Notice, 
expressed dismay at the inclusion of the regulation's ``undue financial 
and administrative burdens'' language, asserted that the Department was 
imposing a lesser requirement on the Federal government than on 
recipients of Federal assistance, and requested that the regulation be 
withdrawn. This form letter did not contain any substantive or detailed 
analysis. In fact, only 55 of the 1,194 comments contained specific, 
detailed analysis of the Department's proposal.

    The Department read and analyzed each comment. Each comment was then 
subdivided according to one or more of over 90 issue categories. Because 
comments often addressed, even in general terms, more than one issue, 
the 1,194 comments were translated into 4,256 issue-specific comments. 
The decisions that the Department made in response to these comments, 
however, were not made on the basis of the number of commenters 
addressing any one point but on a thorough consideration of the merits 
of the points of view expressed in the comments. Copies of the written 
comments will remain available for public inspection in Room 854 of the 
HOLC Building, 320 First Street, NW., Washington, DC from 9:00 a.m. to 
5:30 p.m., Monday through Friday, except for legal holidays, until 
November 13, 1984.

    Section 504 requires that regulations that apply to the programs and 
activities of Federal executive agencies shall be submitted to the 
appropriate authorizing committees of Congress and that such regulations 
may take effect no earlier than the thirtieth day after they have been 
so submitted. The Department has today submitted this regulation to the 
Senate Committee on Labor and Human Resources and its Subcommittee on 
the Handicapped and the House Committee on Education and Labor and its 
Subcommittee on Select Education pursuant to the terms of section 504. 
The regulation will become effective on October 11, 1984.

    This rule applies to all programs and activities conducted by the 
Department of Justice. Thus, this rule regulates the activities of over 
30 separate subunits in the Department, including, for example, the 
Federal Bureau of Investigation, the Drug Enforcement Administration, 
the Immigration and Naturalization Service, the Bureau of Prisons, 
Federal Prison Industries, and the United States Attorneys.


[[Page 736]]



Background


    The purpose of this rule is to provide for the enforcement of 
section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 
794), as it applies to programs and activities conducted by the 
Department of Justice (DOJ). As amended by the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978 (Sec. 119, Pub. L. 95-602, 92 Stat. 2982), section 504 of the 
Rehabilitation Act of 1973 states that:


    No otherwise qualified handicapped individual in the United States, 
. . . shall, solely by reason of his handicap, be excluded from the 
participation in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving Federal financial 
assistance or under any program or activity conducted by any Executive 
agency or by the United States Postal Service. The head of each such 
agency shall promulgate such regulations as may be necessary to carry 
out the amendments to this section made by the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Act of 1978. 
Copies of any proposed regulation shall be submitted to appropriate 
authorizing committees of the Congress, and such regulation may take 
effect no earlier than the thirtieth day after the date on which such 
regulation is so submitted to such committees.


(29 U.S.C. 794) (amendment italicized).


    The substantive nondiscrimination obligations of the agency, as set 
forth in this rule, are identical, for the most part, to those 
established by Federal regulations for programs or activities receiving 
Federal financial assistance. See 28 CFR part 41 (section 504 
coordination regulation for federally assisted programs). This general 
parallelism is in accord with the intent expressed by supporters of the 
1978 amendment in floor debate, including its sponsor, Rep. James M. 
Jeffords, that the Federal government should have the same section 504 
obligations as recipients of Federal financial assistance. 124 Cong. 
Rec. 13,901 (1978) (remarks of Rep. Jeffords); 124 Cong. Rec. E2668, 
E2670 (daily ed. May 17, 1984) id., 124 Cong. Rec. 13,897 (remarks of 
Rep. Brademas); id. at 38,552 (remarks of Rep. Sarasin).

    Nine hundred and two comments that the Department received agreed 
that the obligations of section 504 for federally conducted programs 
should be identical to those developed by the Federal agencies over the 
past seven years for federally assisted programs. These commenters, 
however, objected to any language differences between the Department's 
proposed rule for federally conducted programs and the Department's 
section 504 coordination regulation for federally assisted programs (28 
CFR part 41). The commenters asserted that a number of language 
differences that the Department had proposed created less stringent 
standards for the Federal government than those applied to recipients of 
Federal assistance under section 504. They wrote that such a result 
could not be justified by Executive Order 12250, by the wording of the 
statute itself, nor by the legislative history of the 1978 amendments.

    The commenters appear to have misunderstood the basis for inclusion 
of the new language in the DOJ regulation. The changes in this 
regulation are based on the Supreme Court's decision in Southeastern 
Community College v. Davis, 442 U.S. 397 (1979), and the subsequent 
circuit court decisions interpreting Davis and section 504. See Dopico 
v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982); American Public Transit 
Association v. Lewis, 655 F.2d 1272 (D.C. Cir. 1981) (APTA); see also 
Rhode Island Handicapped Action Committee v. Rhode Island Public Transit 
Authority, 718 F.2d 490 (1st Cir. 1983).

    Some commenters questioned the use of Davis as justification for the 
inclusion of the new provisions in the federally conducted regulation. 
They noted that the Department had not included these changes when, 
subsequent to the Davis decision, it issued a regulation implementing 
section 504 in programs receiving Federal financial assistance from this 
Department. The Department's section 504 federally assisted regulation, 
however, was issued prior to the D.C. circuit's decision in APTA. In 
APTA, the Department had argued a position similar to that advocated by 
the commenters. Judge Abner Mikva's decision in APTA clearly rejected 
the Department's position in that case. Other circuit court decisions 
followed the APTA interpretation of Davis. Since these decisions, the 
Department has interpreted its section 504 regulation for federally 
assisted programs in a manner consistent with the language of this final 
rule. The Department believes that judicial interpretation of section 
504 compels it to incorporate the new language in the federally 
conducted regulation.

    Incorporation of these changes, therefore, makes this section 504 
federally conducted regulation consistent with the Federal government's 
section 504 federally assisted regulations. Because many of these 
federally assisted regulations were issued prior to the judicial 
interpretations of Davis and its progeny, their language does not 
reflect the interpretation of section 504 provided by the Supreme Court 
and by the various circuit courts. Of course, these federally assisted 
regulations must be interpreted to reflect the holdings of the Federal 
judiciary. Hence the Department believes that there are no significant 
differences between this final rule for federally conducted programs and 
the Federal government's interpretation of section 504 regulations for 
federally assisted programs.

[[Page 737]]


    This regulation has been reviewed by the Equal Employment 
Opportunity Commission under Executive Order 12067 (43 FR 28967, 3 CFR, 
1978 Comp., p. 206). It is not a major rule within the meaning of 
Executive Order 12291 (46 FR 13193, 3 CFR, 1981 Comp., p. 127) and, 
therefore, a regulatory impact analysis has not been prepared. This 
regulation does not have an impact on small entities. It is not, 
therefore, subject to the Regulatory Flexibility Act (5 U.S.C. 601-612).


Section-by-Section Analysis and Response To Comments


Section 39.101  Purpose


    Section 39.101 states the purpose of the rule, which is to 
effectuate section 119 of the Rehabilitation, Comprehensive Services, 
and Developmental Disabilities Amendments of 1978, which amended section 
504 of the Rehabilitation Act of 1973 to prohibit discrimination on the 
basis of handicap in programs or activities conducted by Executive 
agencies or the United States Postal Service.

    The Department received no comments on this section and it remains 
unchanged from the Department's proposed rule.


Section 39.102  Application


    The regulation applies to all programs or activities conducted by 
the Department of Justice. Under this section, a federally conducted 
program or activity is, in simple terms, anything a Federal agency does. 
Aside from employment, there are two major categories of federally 
conducted programs or activities covered by this regulation: those 
involving general public contact as part of ongoing agency operations 
and those directly administered by the Department for program 
beneficiaries and participants. Activities in the first part include 
communication with the public (telephone contacts, office walk-ins, or 
interviews) and the public's use of the Department's facilities 
(cafeteria, library). Activities in the second category include programs 
that provide Federal services or benefits (immigration activities, 
operation of the Federal prison system). No comments were received on 
this section.


Section 39.103  Definitions


    The Department received 469 comments on the definitions section. 
Most of the comment, however, concentrated on the definition of 
``qualified handicapped person.''

    ``Agency'' is defined as the Department of Justice.

    ``Assistant Attorney General.'' ``Assistant Attorney General'' 
refers to the Assistant Attorney General, Civil Rights Division, United 
States Department of Justice.

    ``Auxiliary aids.'' ``Auxiliary aids'' means services or devices 
that enable persons with impaired sensory, manual, or speaking skills to 
have an equal opportunity to participate in and enjoy the benefits of 
the agency's programs or activities. The definition provides examples of 
commonly used auxiliary aids. Auxiliary aids are addressed in 
Sec. 39.160(a)(1). Comments on the definition of ``auxiliary aids'' are 
discussed in connection with that section.

    ``Complete complaint.'' ``Complete complaint'' is defined to include 
all the information necessary to enable the agency to investigate the 
complaint. The definition is necessary, because the 180 day period for 
the agency's investigation (see Sec. 39.170(g)) begins when it receives 
a complete complaint.

    ``Facility.'' The definition of ``facility'' is similar to that in 
the section 504 coordination regulation for federally assisted programs, 
28 CFR 41.3(f), except that the term ``rolling stock or other 
conveyances'' has been added and the phrase ``or interest in such 
property'' has been deleted.

    Twenty commenters on the NPRM objected to the omission of the phrase 
``or interest in such property'' from the definition of ``facility.'' As 
explained in the Supplemental Notice, the term ``facility,'' as used in 
this regulation, refers to structures, and does not include intangible 
property rights. The definition, therefore, has no effect on the scope 
of coverage of programs, including those conducted in facilities not 
included in the definition. The phrase has been omitted because the 
requirement that facilities be accessible would be a logical absurdity 
if applied to a lease, life estate, mortgage, or other intangible 
property interest. The regulation applies to all programs and activities 
conducted by the agency regardless of whether the facility in which they 
are conducted is owned, leased, or used on some other basis by the 
agency. Sixty commenters supported the clarification of this issue in 
the Supplemental Notice.

    ``Handicapped person.'' The definition of ``handicapped person'' has 
been revised to make it identical to the definition appearing in the 
section 504 coordination regulation for federally assisted programs (28 
CFR 41.31). In its NPRM, the Department omitted the list of physical or 
mental impairments included in the definition of ``handicapped 
persons.'' The Department received 19 negative comments on this 
omission, and, in the Supplemental Notice, requested comments on whether 
it should be re-inserted. On the basis of the comments received, we have 
included the list in the final rule.

    ``Qualified handicapped person'' The definition of ``qualified 
handicapped person'' is a revised version of the definition appearing in 
the section 504 coordination regulation for federally assisted programs 
(28 CFR 41.32).

[[Page 738]]


    Subparagraph (1) of the definition states that a ``qualified 
handicapped person'' with regard to any program under which a person is 
required to perform services or to achieve a level of accomplishment is 
a handicapped person who can achieve the purpose of the program without 
modifications in the program that the agency can demonstrate would 
result in a fundamental alteration in its nature. This definition is 
based on the Supreme Court's Davis decision.

    In Davis, the Court ruled that a hearing-impaired applicant to a 
nursing school was not a ``qualified handicapped person'' because her 
hearing impairment would prevent her from participating in the clinical 
training portion of the program. The Court found that, if the program 
were modified so as to enable the respondent to participate (by 
exempting her from the clinical training requirements), ``she would not 
receive even a rough equivalent of the training a nursing program 
normally gives.'' 442 U.S. at 410. It also found that ``the purpose of 
[the] program was to train persons who could serve the nursing 
profession in all customary ways,'' id. at 413, and that the respondent 
would be unable, because of her hearing impairment, to perform some 
functions expected of a registered nurse. It therefore concluded that 
the school was not required by section 504 to make such modifications 
that would result in ``a fundamental alteration in the nature of the 
program.'' Id. at 410.

    The Department incorporated the Court's language in the definition 
of ``qualified handicapped person'' in order to make clear that such a 
person must be able to participate in the program offered by the agency. 
The agency is required to make modifications in order to enable a 
handicapped applicant to participate, but is not required to offer a 
program of a fundamentally different nature. The test is whether, with 
appropriate modifications, the applicant can achieve the purpose of the 
program offered; not whether the applicant could benefit or obtain 
results from some other program that the agency does not offer. Although 
the revised definition allows exclusion of some handicapped people from 
some programs, it requires that a handicapped person who is capable of 
achieving the purpose of the program must be accommodated, provided that 
the modifications do not fundamentally alter the nature of the program.

    Two hundred and forty-four commenters objected to this revised 
definition for a variety of reasons. Several commenters stated that the 
Department incorrectly used Davis as the justification for explaining 
the differences between the federally assisted and the federally 
conducted regulations because the Supreme Court upheld the validity of 
the existing regulations in Consolidated Rail Corp. v. Darrone, 104 S. 
Ct. 1248 (1984). This view misunderstands the Court's actions in 
Darrone. In that case the Court ruled on a series of issues, the most 
important of which was under what circumstances section 504 applied to 
employment discrimination by recipients. The Court did not concern 
itself either directly or indirectly with the definition of ``qualified 
handicapped person'' or whether section 504 included limitations based 
on ``undue financial and administrative burdens.''

    Many commenters stated that the proposal would change the definition 
of qualified handicapped person for employment. ``Qualified handicapped 
person'' is defined for purposes of employment in 29 CFR 1613.702(f), 
which is made applicable to this part by Sec. 39.140. Nothing in this 
part changes existing regulations applicable to employment.

    Many commenters assumed that the definition would have the effect of 
placing on the handicapped person the burden of proving that he or she 
is qualified. The definition has been revised to make it clear that the 
agency has the burden of demonstrating that a proposed modification 
would constitute a fundamental alteration in the nature of its program 
or activity. Furthermore, in demonstrating that a modification would 
result in such an alteration, the agency must follow the procedures 
established in Secs. 39.150(a)(2) and 39.160(d), which are discussed 
below, for demonstrating that an action would result in undue financial 
and administrative burdens. That is, the decision must be made by the 
agency head or his or her designee in writing after consideration of all 
resources available for the program or activity and must be accompanied 
by an explanation of the reasons for the decision. If the agency head 
determines that an action would result in a fundamental alteration, the 
agency must consider options that would enable the handicapped person to 
achieve the purpose of the program but would not result in such an 
alteration.

    Some commenters said that the definition of ``qualified handicapped 
person'' places handicapped persons in a ``Catch-22'' situation: because 
only qualified handicapped persons are protected by the statute, a 
determination that a person is not qualified would make enforcement 
remedies unavailable to that person. This concern is misplaced. If the 
Department determined that a handicapped person was not ``qualified,'' 
the person could use the procedures established by Sec. 39.170 to 
challenge that determination, just as he or she could challenge any 
other decision by the agency that he or she believed to be 
discriminatory.

    Many commenters argued that the definition of ``qualified 
handicapped person'' confused what should be two separate inquiries: 
whether a person meets essential eligibility

[[Page 739]]

requirements and, if so, whether accommodation is required. They argued 
that the reference to ``fundamental alteration'' in the definition 
focuses attention on accommodations rather than on a handicapped 
person's abilities. As another commenter noted, however, the Supreme 
Court in Davis developed the ``fundamental alteration'' language in a 
decision that was determining the nature and scope of what constitutes a 
qualified handicapped person. The Department continues to believe that 
the concept of ``qualified handicapped person'' properly encompasses 
both the notion of ``essential eligibility requirements'' and the notion 
of program modifications that might fundamentally alter a program.

    Some commenters argued that our analysis of Davis was inappropriate 
because Davis was decided on the basis of individual facts unique to 
that case or because Davis involved federally assisted and not federally 
conducted programs. While cases are decided on the basis of specific 
factual situations, courts, especially the Supreme Court, develop 
general principles of law for use in analyzing facts. The Davis decision 
was the Supreme Court's first comprehensive view of section 504, a major 
new civil rights statute. The Davis holding, that a person who cannot 
achieve the purpose of a program without fundamental changes in its 
nature is not a ``qualified handicapped person,'' is a general 
principle, a statement by the Court on how it views section 504. It is 
therefore necessary to reflect it in the Department's regulation.

    Subparagraph (2) of the definition adopts the existing definition in 
the coordination regulation of ``qualified handicapped person'' with 
respect to services for programs receiving Federal financial assistance 
(28 CFR 41.32(b)). Under this part of the definition, a qualified 
handicapped person is a handicapped person who meets the essential 
eligibility requirements for participation in the program or activity.

    ``Section 504.'' This definition makes clear that, as used in this 
regulation, ``section 504'' applies only to programs or activities 
conducted by the agency and not to programs or activities to which it 
provides Federal financial assistance.


Section 39.110  Self-evaluation


    This section requires that the agency conduct a self-evaluation of 
its compliance with section 504 within one year of the effective date of 
this regulation. The self-evaluation requirement is present in the 
existing section 504 coordination regulation for programs or activities 
receiving Federal financial assistance (28 CFR 41.5(b)(2)). Experience 
has demonstrated the self-evaluation process to be a valuable means of 
establishing a working relationship with handicapped persons that 
promotes both effective and efficient implementation of section 504.

    In response to preliminary comments that the proposed rule had no 
specific criteria for conducting a self-evaluation, we requested comment 
on a proposed alternative in our Supplemental Notice (49 FR 7792). We 
received 64 comments, 57 of which were positive. The comments generally 
favored adoption of the alternative section, instead of the proposed 
section. We agree.

    With respect to the applicability of the Federal Advisory Committee 
Act (5 U.S.C. App. 1 et seq.) (FACA), several comments were received. 
They argued that the FACA is not intended to apply to meetings with a 
self-evaluation group comprised of private individuals because they are 
rather unstructured, ad hoc meetings.

    Authority for interpreting FACA was delegated to the General 
Services Administration (GSA) by Executive Order 12024 in 1977. 
Regulations issued by GSA place specific limitations on the scope of the 
Act by delineating examples of meetings or groups not covered. 41 CFR 
part 101-6. GSA identified a major issue in the promulgation of the 
regulations to be the extent of applicability of the Act

    Some commenters believe, as a matter of general policy, that 
advisory groups which are not formally structured, which do not have a 
continuing existence, which meet to deal with specific issues, and whose 
meetings do not constitute an established pattern of conduct should not 
be covered under the Act. * * * This rule reflects our judgment that the 
exclusion of certain non-recurring meetings from the Act's coverage is 
fully consistent with the statute, its legislative history, and judicial 
interpretation. * * * The interim rule provides guidance for those 
meetings between Federal officials and non-Federal individuals which do 
not fall within the scope of the Act, and for which a charter and 
consultation with GSA is not required.


48 FR 19324 (Preamble to interim rules).


    The regulations define ``advisory committee'' in pertinent part as:


    Any committee, board, commission, council, conference, panel, task 
force or other similar group * * * established by * * * or utilized by * 
* * any agency official for the purpose of obtaining advice or 
recommendations on issues or policy which are within the scope of his or 
her responsibilities.


41 CFR 101-6. 1003 (emphasis added).


    In turn, ``utilized'' is defined in pertinent part as a


group * * * which * * * agency official(s) adopts, such as through 
institutional arrangements, as a preferred source from which

[[Page 740]]

to obtain advice or recommendations on a specific issue or policy within 
the scope of his or her responsibilities in the same manner as that 
individual would obtain advice or recommendations from an established 
advisory committee.


41 CFR 101-6.1003 (emphasis added).


    The GSA regulation further provides that the Act does not apply to

    (g) Any meeting initiated by the President or one or more Federal 
official [sic] for the purpose of obtaining advice or recommendations 
from one individual;

    (h) Except with respect to established advisory committees:

    (1) Any meeting with a group initiated by the President or one or 
more Federal official(s) for the purpose of exchanging facts or 
information; or

    (2) Any meeting initiated by a group with the President or one or 
more Federal official(s) for the purpose of expressing the group's view, 
provided that the President or Federal official(s) does not use the 
group as a preferred source of advice or recommendations;

    *    *    *    *    *

    (j) Any meeting initiated by a Federal official(s) with more than 
one individual for the purpose of obtaining the advice of individual 
attendees and not for the purpose of utilizing the group to obtain 
consensus advice or recommendations.


41 CFR 101-6.1004 (g), (h), and (j).


    This final rule provides that the agency shall provide an 
opportunity for interested persons, including handicapped persons or 
organizations representing handicapped persons, to participate in the 
self-evaluation process and development of transition plans by 
submitting comments (both oral and written).


Section 39.111  Notice


    The Department received negative comments on its omission of a 
paragraph routinely used in section 504 regulations for federally 
assisted programs requiring recipients to inform interested persons of 
their rights under section 504. In the Department's Supplemental Notice, 
we requested comments on inclusion of specific regulatory language. 
Fifty-four positive comments were received. As a result, the Department 
has incorporated that new provision on notice into the final rule. It 
appears as Sec. 39.111.

    Section 39.111 requires the agency to disseminate sufficient 
information to employees, applicants, participants, beneficiaries, and 
other interested persons to apprise them of rights and protections 
afforded by section 504 of this regulation. Methods of providing this 
information include, for example, the publication of information in 
handbooks, manuals, and pamphlets that are distributed to the public to 
describe the agency's programs and activities; the display of 
informative posters in service centers and other public places; or the 
broadcast of information by television or radio.

    Section 39.111 is, in fact, a broader and more detailed version of 
the proposed rule's requirement (at Sec. 39.160(d)) that the agency 
provide handicapped persons with information concerning their rights. 
Because Sec. 39.111 encompasses the requirements of proposed 
Sec. 39.160(d), that latter paragraph has been deleted as duplicative.


Section 39.130  General prohibitions against discrimination


    Section 39.130 is an adaptation of the corresponding section of the 
section 504 coordination regulation for programs or activities receiving 
Federal financial assistance (28 CFR 41.51). This regulatory provision 
attracted relatively few public comments and has not been changed from 
the proposed rule.

    Paragraph (a) restates the nondiscrimination mandate of section 504. 
The remaining paragraphs in Sec. 39.130 establish the general principles 
for analyzing whether any particular action of the agency violates this 
mandate. These principles serve as the analytical foundation for the 
remaining sections of the regulation. If the agency violates a provision 
in any of the subsequent sections, it will also violate one of the 
general prohibitions found in Sec. 39.130. When there is no applicable 
subsequent provision, the general prohibitions stated in this section 
apply.

    Paragraph (b) prohibits overt denials of equal treatment of 
handicapped persons. The agency may not refuse to provide a handicapped 
person with an equal opportunity to participate in or benefit from its 
program simply because the person is handicapped. Such blatantly 
exclusionary practices often result from the use of irrebuttable 
presumptions that absolutely exclude certain classes of disabled persons 
(e.g., epileptics, hearing-impaired persons, persons with heart 
ailments) from participation in programs or activities without regard to 
an individual's actual ability to participate. Use of an irrebuttable 
presumption is permissible only when in all cases a physical condition 
by its very nature would prevent an individual from meeting the 
essential eligiblity requirements for participation in the activity in 
question. It would be permissible, therefore, to exclude without an 
individual evaluation all persons who are blind in both eyes from 
eligibility for a license to operate a commercial vehicle in interstate 
commerce; but it may not be permissible to disqualify automatically all 
those who are blind in just one eye.

[[Page 741]]


    In addition, section 504 prohibits more than just the most obvious 
denials of equal treatment. It is not enough to admit persons in 
wheelchairs to a program if the facilities in which the program is 
conducted are inaccessible. Subparagraph (b)(1)(iii), therefore, 
requires that the opportunity to participate or benefit afforded to a 
handicapped person be as effective as that afforded to others. The later 
sections on program accessibility (Secs. 39.149-39.151) and 
communications (Sec. 39.160) are specific applications of this 
principle.

    Despite the mandate of paragraph (d) that the agency administer its 
programs and activities in the most integrated setting appropriate to 
the needs of qualified handicapped persons, subparagraph (b)(1)(iv), in 
conjunction with paragraph (d), permits the agency to develop separate 
or different aids, benefits, or services when necessary to provide 
handicapped persons with an equal opportunity to participate in or 
benefit from the agency's programs or activities. Subparagraph 
(b)(1)(iv) requires that different or separate aids, benefits, or 
services be provided only when necessary to ensure that the aids, 
benefits, or services are as effective as those provided to others. Even 
when separate or different aids, benefits, or services would be more 
effective, subparagraph (b)(2) provides that a qualified handicapped 
person still has the right to choose to participate in the program that 
is not designed to accommodate handicapped persons.

    Subparagraph (b)(1)(v) prohibits the agency from denying a qualified 
handicapped person the opportunity to participate as a member of a 
planning or advisory board.

    Subparagraph (b)(1)(vi) prohibits the agency from limiting a 
qualified handicapped person in the enjoyment of any right, privilege, 
advantage, or opportunity enjoyed by others receiving any aid, benefit, 
or service.

    Subparagraph (b)(3) prohibits the agency from utilizing criteria or 
methods of administration that deny handicapped persons access to the 
agency's programs or activities. The phrase ``criteria or methods of 
administration'' refers to official written agency policies and to the 
actual practices of the agency. This subparagraph prohibits both 
blatantly exclusionary policies or practices and nonessential policies 
and practices that are neutral on their face, but deny handicapped 
persons an effective opportunity to participate.

    Subparagraph (b)(4) specifically applies the prohibition enunciated 
in Sec. 39.130(b)(3) to the process of selecting sites for construction 
of new facilities or existing facilities to be used by the agency. 
Subparagraph (b)(4) does not apply to construction of additional 
buildings at an existing site.

    Subparagraph (b)(5) prohibits the agency, in the selection of 
procurement contractors, from using criteria that subject qualified 
handicapped persons to discrimination on the basis of handicap.

    Subparagraph (b)(6) prohibits the agency from discriminating against 
qualified handicapped persons on the basis of handicap in the granting 
of licenses or certification. A person is a ``qualified handicapped 
person'' with respect to licensing or certification, if he or she can 
meet the essential eligibility requirements for receiving the license or 
certification (see Sec. 39.103).

    In addition, the agency may not establish requirements for the 
programs or activities of licensees or certified entities that subject 
qualified handicapped persons to discrimination on the basis of 
handicap. For example, the agency must comply with this requirement when 
establishing safety standards for the operations of licensees. In that 
case the agency must ensure that standards that it promulgates do not 
discriminate in an impermissible manner against the employment of 
qualified handicapped persons.

    Subparagraph (b)(6) does not extend section 504 directly to the 
programs or activities of licensees or certified entities themselves. 
The programs or activities of Federal licensees or certified entities 
are not themselves federally conducted programs or activities nor are 
they programs or activities receiving Federal financial assistance 
merely by virtue of the Federal license or certificate. However, as 
noted above, section 504 may affect the content of the rules established 
by the agency for the operation of the program or activity of the 
licensee or certified entity, and thereby indirectly affect limited 
aspects of its operations.

    Twenty-three commenters argued that the regulation should extend to 
the activities of licensees or certified entities, citing Community 
Television of Southern California v. Gottfried, 103 S. Ct. 885 (1983). 
In that case, the Court held that section 504 as applied to federally 
assisted programs did not require the Federal Communications Commission 
to prohibit discrimination on the basis of handicap by licensed 
broadcasters, but that ``the policies underlying the Communications 
Act'' might authorize the Commission to issue a regulation governing 
such discrimination. The Court did not, however, indicate that section 
504 itself could serve as the source of such regulatory authority.

    The Court has held that ``the use of the words `public interest' in 
a regulatory statute is not a broad license to promote the general 
public welfare. Rather the words take meaning from the purposes of the 
regulatory legislation.'' National Association for the Advancement of 
Colored People v. Federal Power Commission, 425 U.S. 662, 669 (1976). In 
our view, section 504 does not of itself extend an agency's regulatory 
authority to the activities of licensees or certified entities.

[[Page 742]]

Where an agency has existing regulatory authority that is broad enough 
to enable it to establish a nondiscrimination requirement for its 
licensees or certified entities, section 504 may support the exercise of 
that authority. Because the Department of Justice has no such underlying 
authority, it cannot prohibit discrimination by licensees.

    Twenty-two commenters objected to the omission of a paragraph from 
the regulations for federally assisted programs that prohibits a 
recipient from providing significant assistance to an organization that 
discriminates. To the extent that assistance from the agency would 
provide significant support to an organization, it would constitute 
Federal financial assistance and the organization, as a recipient of 
such assistance, would be covered by the agency's section 504 regulation 
for federally assisted programs. The regulatory ``significant 
assistance'' provision, however, would be inappropriate in a regulation 
applying only to federally conducted programs or activities.

    Paragraph (c) provides that programs conducted pursuant to Federal 
statute or Executive order that are designed to benefit only handicapped 
persons or a given class of handicapped persons may be limited to those 
handicapped persons.

    Paragraph (d), discussed above, provides that the agency must 
administer programs and activities in the most integrated setting 
appropriate to the needs of qualified handicapped persons.


Section 39.140  Employment


    Section 39.140 prohibits discrimination on the basis of handicap in 
employment by the agency. Comments on proposed Sec. 39.140 identified 
two types of problems. First, several commenters felt that the rule's 
treatment of employment was not sufficiently comprehensive. They pointed 
out that the rule does not enumerate the employment practices covered 
(e.g., hiring, promotion, assignment); it does not say what must be done 
to avoid or correct possible discrimination (e.g., reasonable 
accommodation, review of preemployment tests, limitations on 
preemployment inquiries and the use of medical examinations); nor does 
it define a ``qualified handicapped person'' with respect to employment.

    Second, one commenter objected to the rule's adoption of ``the 
definitions, requirements and procedures of section 501 of the 
Rehabilitation Act'' as established in rules of the Equal Employment 
Opportunity Commission (EEOC) at 29 CFR part 1613. This commenter argued 
that EEOC's rules on physical examinations were too restrictive and 
claimed that the proposed rule did not limit employment coverage to the 
program conducted by the Federal government in a manner similar to the 
``program or activity'' limitation on coverage of programs receiving 
Federal financial assistance. Finally, the commenter asserted that 
reliance on section 501 was misplaced because that section of the 
Rehabilitation Act requires affirmative action whereas section 504, 
which the rule implements, contains only a nondiscrimination 
requirement.

    The original notice of proposed rulemaking explained that the 
regulation is in accord with Prewitt v. United States Postal Service, 
662 F.2d 292 (5th Cir. 1981), which held that Congress intended section 
504 to cover the employment practices of Executive agencies. In Prewitt, 
the court also held that, in order to give effect to sections 501 and 
504, both of which cover Federal employment, the administrative 
procedures of section 501 must be followed. Accordingly, the proposed 
rule adopted the definitions, requirements and procedures of section 501 
as established in EEOC's rules.

    The final rule has not been changed. The Department intends to avoid 
duplicative, competing or conflicting standards under the Rehabilitation 
Act with respect to Federal employment. While the rule could define 
terms with respect to employment and enumerate what practices are 
covered and what requirements apply, reference to the Government-wide 
rules of the Equal Employment Opportunity Commission is sufficient and 
avoids duplication. The class of Federal employees and applicants for 
employment covered by section 504 is identical to or subsumed within 
that covered by section 501. To apply different or lesser standards to 
persons alleging violations of section 504 could lead unnecessarily to 
confusion in the enforcement of the Rehabilitation Act with respect to 
Federal employment.


Section 39.149  Program accessibility: Discrimination prohibited


    The proposed regulation did not contain a general statement of the 
program accessibility requirement similar to that appearing in the 
section 504 coordination regulation for federally assisted programs (28 
CFR 41.56). The decision not to include this language in the proposed 
regulation created the misperception that a change in substance was 
intended. In order to remedy this misunderstanding, the Supplemental 
Notice requested comments on explicitly including it. Sixty-two 
commenters favored inclusion of the specific regulatory language that 
was published in the Supplemental Notice. Consequently, the final rule 
has been revised to include the language of the Supplemental Notice. The 
language appears at Sec. 39.149.


Section 39.150  Program accessibility: Existing facilities


[[Page 743]]



    This regulation adopts the program accessibility concept found in 
the existing section 504 coordination regulation for programs or 
activities receiving Federal financial assistance (28 CFR 41.57), with 
certain modifications. Thus, Sec. 39.150 requires that the agency's 
program or activity, when viewed in its entirety, be readily accessible 
to and usable by handicapped persons. The regulation also makes clear 
that the agency is not required to make each of its existing facilities 
accessible (Sec. 39.150(a)(1)). However, Sec. 39.150, unlike 28 CFR 
41.56-41.57, places explicit limits on the agency's obligation to ensure 
program accessibility (Sec. 39.150(a)(2)). This provision provoked 959 
comments, the largest number received on any single issue. Most 
commenters sought the deletion of the ``undue financial and 
administrative burdens'' language from the regulation. On the basis of 
preliminary comments on this paragraph, the Department published 
clarifying language in its Supplemental Notice. The final version 
includes that clarification.

    The ``undue financial and administrative burdens'' language (found 
at Secs. 39.150(a)(2) and 39.160(d)) is based on the Supreme Court's 
Davis holding that section 504 does not require program modifications 
that result in a fundamental alteration in the nature of a program, and 
on the Court's statement that section 504 does not require modifications 
that would result in ``undue financial and administrative burdens.'' 442 
U.S. at 412. Since Davis, circuit courts have applied this limitation on 
a showing that only one of the two ``undue burdens'' would be created as 
a result of the modification sought to be imposed under section 504. 
See, e.g., Dopico v. Goldschmidt, supra; American Public Transit 
Association v. Lewis, supra (APTA). In APTA the United States Court of 
Appeals for the District of Columbia Circuit applied the Davis language 
and invalidated the section 504 regulations of the Department of 
Transportation (DOT). The court in APTA noted ``that at some point a 
transit system's refusal to take modest, affirmative steps to 
accommodate handicapped persons might well violate section 504. But 
DOT's rules do not mandate only modest expenditures. The regulations 
require extensive modifications of existing systems and impose extremely 
heavy financial burdens on local transit authorities.'' 655 F.2d at 
1278.

    The inclusion of subparagraph (a)(2) is an effort to conform the 
agency's regulation implementing section 504 to the Supreme Court's 
interpretation of the statute in Davis as well as to the decisions of 
lower courts following the Davis opinion. This subparagraph 
acknowledges, in light of recent case law, that, in some situations, 
certain accommodations for a handicapped person may so alter an agency's 
program or activity, or entail such extensive costs and administrative 
burdens that the refusal to undertake the accommodations is not 
discriminatory. The failure to include such a provision could lead to 
judicial invalidation of the regulation or reversal of a particular 
enforcement action taken pursuant to the regulation.

    Many commenters argued that the Supreme Court's decision in Davis 
did not require inclusion of an undue burdens defense in this 
regulation. These commenters asserted that the holding in Davis was that 
the plaintiff was not a qualified handicapped person and that the 
subsequent reference to ``undue financial and administrative burdens'' 
was mere dicta. These commenters overlook the interpretations of Davis 
provided by the Federal circuit court cases mentioned above. The APTA 
and Dopico decisions make it clear that financial burdens can limit the 
obligation to comply with section 504. See also New Mexico Association 
for Retarded Citizens v. New Mexico, 678 F.2d 847 (10th Cir. 1982).

    Many commenters argued that inclusion of the undue burdens defense 
was inconsistent with the position taken by Vice President Bush in his 
letter of March 21, 1983, in which he announced the Administration's 
decision not to revise the coordination regulation for federally 
assisted programs. The decision to include the undue burdens defense 
represents no contradiction with the position taken by Vice President 
Bush on the guidelines for federally assisted programs. In his letter 
the Vice President stated that ``extensive change of the existing 504 
coordination regulations was not required, and that with respect to 
those few areas where clarification might be desirable, the courts are 
currently providing useful guidance and can be expected to continue to 
do so in the future.'' One element of that ``useful guidance'' obviously 
comes from interpretations of the Davis decision by the lower Federal 
courts.

    The Department has carefully considered the comments on the process 
that the Department should follow in determining whether a program 
modification would result in undue financial and administrative burdens. 
The Department intends to be guided by six principles in its application 
of the ``fundamental alteration'' and ``undue financial and 
administrative burdens'' language.

    First, because of the extensive resources and capabilities that 
could properly be drawn upon for section 504 purposes by a large Federal 
agency like the Department of Justice, the Department explicitly 
acknowledges that, in most cases, making a Department program accessible 
will likely not result in undue burdens. Second, the burden of proving 
that the accommodation request will result in a fundamental alteration 
or undue burdens has been placed squarely on the Department of Justice, 
not on the handicapped

[[Page 744]]

person. Third, in determining whether financial and administrative 
burdens are undue, the Department is to consider all Department 
resources available for use in the funding and operation of the 
conducted program. Fourth, the ``fundamental alteration''/``undue 
burdens'' decision is to be made by the Attorney General or his designee 
and must be accompanied by a written statement of reasons for reaching 
such a conclusion. Fifth, if a disabled person disagrees with the 
Attorney General's finding, he or she can file a complaint under the 
complaint procedures established by the final regulation. A significant 
feature of this complaint adjudication procedure is the availability of 
a hearing before an independent administrative law judge under the due 
process protections of the Administrative Procedure Act. Sixth and 
finally, even if there is a determination that making a program 
accessible will fundamentally alter the nature of the program, or will 
result in undue financial and administrative burdens, the Department 
must still take action, short of that outer limit, that will open 
participation in the Department's program to disabled persons to the 
fullest extent possible.

    One hundred and eighty-one commenters on the Supplemental Notice 
objected to the provision that the ``undue burdens'' decision would be 
based on consideration of ``all agency resources available for use in 
the funding and operation of the conducted program,'' arguing that it 
should be based on the resources of the agency as a whole. Some argued 
that this formulation was required because all agency resources come 
from taxpayer monies and should not be used to support discrimination.

    The Department's entire budget is an inappropriate touchstone for 
making determinations as to undue financial and administrative burdens. 
Many parts of the Department's budget are earmarked for specific 
purposes and are simply not available for use in making the Department's 
programs accessible to disabled persons. For example, funds for the 
operation of the Bureau of Prisons are unavailable for defraying the 
cost of a sign language interpreter at a deportation hearing conducted 
by the Immigration and Naturalization Service. There are extensive 
resources available to the Department and it is expected that the 
Department will, only on very rare occasions, be faced with ``undue 
burdens'' in meeting the program accessibility or communications 
sections of the regulation.

    One commenter said that the term ``undue hardship'' used in 
regulations for federally assisted programs is more specific and less 
discriminatory than the term ``undue burdens.'' The term ``undue 
hardship'' is a term of art used in connection with employment. The term 
``undue burdens'' is taken from the Supreme Court's opinion in Davis and 
is appropriately included in this regulation.

    Some commenters argued that section 504 creates an absolute right to 
access, and that cost cannot limit this right, although it may be a 
factor in determining timeframes for compliance. Section 504 does not 
create an absolute right to access. The Supreme Court stated in Davis 
that recipients need not undertake modifications to their programs to 
meet the requirements of section 504 that would result in ``undue 
financial and administrative burdens.'' This understanding of section 
504 and its implementing regulations for federally assisted programs is 
shared by the lower Federal courts, which have routinely applied the 
``undue burdens'' limitation to accessibility issues. Congress suggested 
no different interpretation of section 504 when applying it to federally 
conducted programs. Spreading the cost of compliance over a period of 
time is, however, one way of avoiding undue financial and administrative 
burdens, and the Department will consider that as an option whenever it 
considers asserting that defense.

    Paragraph (b) sets forth a number of means by which program 
accessibility may be achieved, including redesign of equipment, 
reassignment of services to accessible buildings, and provision of 
aides. In choosing among methods, the agency shall give priority 
consideration to those that will be consistent with provision of 
services in the most integrated setting appropriate to the needs of 
handicapped persons. Structural changes in existing facilities are 
required only when there is no other feasible way to make the agency's 
program accessible. The agency may comply with the program accessibility 
requirement by delivering services at alternate accessible sites or 
making home visits as appropriate.

    Paragraphs (c) and (d) establish time periods for complying with the 
program accessibility requirement. As currently required for federally 
assisted programs by 28 CFR 41.57(b), the agency must make any necessary 
structural changes in facilities as soon as practicable, but in no event 
later than three years after the effective date of this regulation. 
Where structural modifications are required, a transition plan shall be 
developed within six months of the effective date of this regulation. 
Aside from structural changes, all other necessary steps to achieve 
compliance shall be taken within sixty days.


Section 39.151  Program accessibility: New construction and alterations


    Overlapping coverage exists with respect to new construction under 
section 504, section 502 of the Rehabilitation Act of 1973, as

[[Page 745]]

amended (29 U.S.C 792), and the Architectural Barriers Act of 1968, as 
amended (42 U.S.C. 4151-4157). Section 39.151 provides that those 
buildings that are constructed or altered by, on behalf of, or for the 
use of the agency shall be designed, constructed, or altered to be 
readily accessible to and usable by handicapped persons in accordance 
with 41 CFR 101-19.600 to 101-19.607. This standard was promulgated 
pursuant to the Architectural Barriers Act of 1968, as amended (42 
U.S.C. 4151-4157). It is appropriate to adopt the existing Architectural 
Barriers Act standard for section 504 compliance because new and altered 
buildings subject to this regulation are also subject to the 
Architectural Barriers Act and because adoption of the standard will 
avoid duplicative and possibly inconsistent standards.

    Existing buildings leased by the agency after the effective date of 
this regulation are not required to meet the new construction standard. 
They are subject, however, to the requirements of Sec. 39.150.

    A commenter has recommended that the regulation should require that 
buildings leased after the effective date of the regulation should meet 
the new construction standards of Sec. 39.151, rather than the program 
accessibility standard for existing facilities in Sec. 39.150. Federal 
practice under section 504 has always treated newly leased buildings as 
subject to the existing facility program accessibility standard. Unlike 
the construction of new buildings where architectural barriers can be 
avoided at little or no cost, the application of new construction 
standards to an existing building being leased raises the same prospect 
of retrofitting buildings as the use of an existing Federal facility, 
and the Department believes the same program accessibility standard 
should apply to both owned and leased existing buildings.


Section 39.160  Communications


    Section 39.160 requires the agency to take appropriate steps to 
ensure effective communication with personnel of other Federal entities, 
applicants, participants, and members of the public. These steps include 
procedures for determining when auxiliary aids are necessary under 
Sec. 39.160(a)(1) to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, the agency's program or 
activity. They also include an opportunity for handicapped persons to 
request the auxiliary aids of their choice. This expressed choice shall 
be given primary consideration by the agency (Sec. 39.160(a)(1)(i)). The 
agency shall honor the choice unless it can demonstrate that another 
effective means of communication exists or that use of the means chosen 
would not be required under Sec. 39.160(d). That paragraph limits the 
obligation of the agency to ensure effective communication in accordance 
with Davis and the circuit court opinions interpreting it (see supra 
preamble Sec. 39.150(a)(2)). Unless not required by Sec. 39.160(d), the 
agency shall provide auxiliary aids at no cost to the handicapped 
person.

    In some circumstances, a notepad and written materials may be 
sufficient to permit effective communication with a hearing-impaired 
person. In many circumstances, however, they may not be, particularly 
when the information being communicated is complex or exchanged for a 
lengthy period of time (e.g., a meeting) or where the hearing-impaired 
applicant or participant is not skilled in spoken or written language. 
In these cases, a sign language interpreter may be appropriate. For 
vision-impaired persons, effective communication might be achieved by 
several means, including readers and audio recordings. In general, the 
agency intends to inform the public of (1) the communications services 
it offers to afford handicapped persons an equal opportunity to 
participate in or benefit from its programs or activities, (2) the 
opportunity to request a particular mode of communication, and (3) the 
agency's preferences regarding auxiliary aids when several different 
modes are effective.

    The agency shall ensure effective communication with vision-impaired 
and hearing-impaired persons involved in hearings conducted by the 
agency, e.g., INS deportation proceedings. Auxiliary aids in these 
proceedings must be afforded where they are necesssary to ensure 
effective communication at the proceedings. When sign language 
interpreters are necessary, the agency may require that it be given 
reasonable notice prior to the proceeding of the need for an 
interpreter. Moreover, the agency need not provide individually 
prescribed devices, readers for personal use or study, or other devices 
of a personal nature (Sec. 39.160(a)(1)(ii)). For example, the agency 
need not provide eye glasses or hearing aids to applicants or 
participants in its programs. Similarly, the regulation does not require 
the agency to provide wheelchairs to persons with mobility impairments.

    Some commenters suggested that the Department's language in 
Sec. 39.160(a)(1)(ii) that states that the agency need not provide 
individually prescribed devices or readers for personal use or study be 
modified to state that such devices are not required for ``nonprogram 
material.'' This suggestion has not been adopted because it is less 
clear than the existing formulation, which is intended to distinguish 
between communications that are necessary to obtain the benefits of the 
federal programs and those that are not and which parallels the 
requirements of the Federal government's section 504 regulations for 
federally assisted programs. For example, a

[[Page 746]]

federally operated library would have to ensure effective communication 
between its librarian and a patron, but not between the patron and a 
friend who had accompanied him or her to the library.

    Several comments suggested that the definition of auxiliary aids 
should include attendant services that may be needed to aid disabled 
persons to travel to meetings. Other comments recommended that in some 
cases attendant services may be an appropriate auxiliary aid to achieve 
program accessiblity.

    The Department has not adopted the approach recommended by these 
comments.To the extent that the services of an attendant are not 
directly related to a federally conducted program or activity, it would 
be inappropriate to require them at Federal expense. For example, the 
services of a sign language interpreter make a workshop as available to 
any deaf participant as it is to other participants. The need for 
services of interpreters arises directly out of the presentation of 
information in a form that can be understood by hearing persons. 
However, the Department views the services of an attendant for a 
disabled person as generally personal in nature and not directly related 
to the federally conducted program.

    A different conclusion, however, might be reached for Federal 
employees or other persons traveling for the agency. Where a disabled 
person who is unable to travel without an attendant is required to 
perform official travel, the travel expenses of an attendant, including 
per diem and transportation expenses, may be paid by the Department. See 
5 U.S.C. 3102(d) (1982).

    Paragraph (b) requires the agency to provide information to 
handicapped persons concerning accessible services, activities, and 
facilities. Paragraph (c) requires the agency to provide signage at 
inaccessible facilities that directs users to locations with information 
about accessible facilities.


Section 39.170  Compliance procedures


    Section 39.170 establishes a detailed complaint processing and 
review procedure for resolving allegations of discrimination in 
violation of section 504 in the Department of Justice's programs and 
activities. The 1978 amendments to section 504 failed to provide a 
specific statutory remedy for violations of section 504 in federally 
conducted programs. The amendment's legislative history suggesting 
parallelism between section 504 for federally conducted and federally 
assisted programs is unhelpful in this area because the fund termination 
mechanism used in section 504 federally assisted regulations depends on 
the legal relationship between a Federal funding agency and the 
recipients to which the Federal funding is extended. The Department has 
decided that the most effective and appropriate manner in which to 
enforce section 504 in the federally conducted area is through an 
equitable complaint resolution process. Section 39.170 establishes this 
process.

    The complaint process in the final rule is substantially the same as 
the one that the Department proposed. The Department received 57 
comments on this section. These comments did not question the use of a 
complaint-responsive enforcement scheme as appropriate for section 504 
for federally conducted programs. The Department continues to view its 
specific proposal as satisfactory.

    Paragraph (a) specifies that paragraphs (c) through (l) of this 
section establish the procedures for processing complaints other than 
employment complaints. Paragraph (b) provides that the agency will 
process employment complaints according to procedures established in 
existing regulations of the EEOC (29 CFR part 1613) pursuant to section 
501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).

    Paragraph (c) vests in the Responsible Official the responsibility 
for the overall management of the 504 compliance program. ``Responsible 
Official'' or ``Official,'' as defined in Sec. 39.103, refers to the 
Director of Equal Employment Opportunity, who is designated as the 
official responsible for coordinating implementation of compliance 
procedures set forth in Sec. 39.170. The definition of ``Official'' 
includes other Department Officials to whom authority has been delegated 
by the Official. The Assistant Attorney General for Administration has 
been designated as the Director of Equal Employment Opportunity for the 
Department. See 28 CFR 42.2(a).

    Although one person has responsibility both for administering the 
Equal Employment Opportunity Program for the Department and for 
coordinating implementation of the compliance procedures under this 
part, the procedures for carrying out these two responsibilities are 
different. The Official would follow the procedures for enforcing equal 
employment opportunity, as set forth in 29 CFR part 1613, only for 
complaints alleging employment discrimination (see Sec. 39.170(b)). 
Other complaints would be processed under the procedures in Sec. 39.170. 
Authority for processing complaints of employment discrimination has 
been delegated to Equal Employment Opportunity Officers in some 
Department components, and it is expected that authority for enforcing 
this part will be similarly delegated.

    Subparagraphs (d) (1) and (3) provide that any person who believes 
that he or she has been discriminated against may file a complaint 
within 180 days from the date of the alleged discrimination. The 
Official may extend the time limit when the complainant shows good 
cause. Good cause could be found

[[Page 747]]

if, for example, (1) the complainant mistakenly filed with the wrong 
agency and was not informed of the mistake within the 180 days; or (2) 
the complainant could not reasonably be expected to know of the act or 
event said to be discriminatory.

    Several commenters argued that the proposed rule unnecessarily 
restricted the right to file a complaint by not allowing an individual 
victim of discrimination to authorize a representative to file on his or 
her behalf. The final rule permits filing by the authorized 
representative of an individual victim, or, in the case of class 
discrimination, of a member of the class, as well as by an individual 
victim or class member. The final rule has been revised to make it clear 
that complaints alleging that a specific class of persons has been 
discriminated against may only be filed by a member of that specific 
class or by a representative authorized to file the complaint by a 
member of that class (Sec. 39.170(d)(1)).

    The Federal Bureau of Prisons has established an Administrative 
Remedy Procedure for handling grievances of inmates of Federal penal 
institutions (28 CFR part 542). This procedure allows an inmate to file 
a formal written complaint with the Warden of the Institution or with 
the Regional Director. While these remedies are not a substitute for the 
right to an independent investigation by a civil rights office and 
appeal to the Complaint Adjudication Officer, the final rule requires 
inmates to exhaust these procedural remedies before filing a complaint 
with the Official. The time period for filing a complaint with the 
Official would be extended by the time spent exhausting these remedies. 
This requirement applies only to inmates and does not extend to visitors 
and employees.

    The Department received several comments on how prisoners' 
complaints should be handled. Some of them suggested that both the 
discrimination procedure and the prison grievance procedures should be 
invoked simultaneously. The Department believes that this proposal would 
require the unnecessary duplication of efforts without materially 
enhancing results. The Bureau of Prisons reported that thousands of 
inmate complaints were filed in 1983 alone and that several court 
decisions have held that the inmate administrative remedy procedure must 
be exhausted before suit can be filed. Although the volume of complaints 
by prison inmates might be burdensome, it is not possible now to 
forecast the number that will be filed. The Department believes, 
however, that handicapped prisoners must be afforded the right to have 
their complaints investigated by an office that specializes in 
discrimination complaints, including section 504 complaints, as well as 
the right to appeal to the Complaint Adjudication Officer. It is 
expected that the requirement that inmates first exhaust prison 
administrative remedies will be effective in resolving most meritorious 
complaints. It may be necessary, of course, for the Department to 
provide additional resources to handle complaints filed under the new 
regulation.

    Subparagraph (d)(2) requires that the name and identity of a 
complainant be held in confidence unless he or she waives that right in 
writing and except to the extent necessary for compliance purposes.

    Complaints may be mailed or delivered to the Attorney General, the 
Responsible Official, or other agency officials. Complaints received by 
any agency official other than the Responsible Official must be 
forwarded immediately to the Responsible Official (subparagraph (d)(4)).

    Paragraph (e) requires the agency to send to the Architectural and 
Transportation Barriers Compliance Board a copy of any complaint 
alleging that a building or facility subject to the Architectural 
Barriers Act or section 502 was designed, constructed, or altered in a 
manner that does not provide ready access to and use by handicapped 
persons.

    The Official is required to accept all complete complaints over 
which the agency has jurisdiction (Sec. 39.170(f)(1)). If the Official 
determines that the agency does not have jurisdiction over a complaint, 
the Official shall promptly notify the complainant and make reasonable 
efforts to refer the complaint to the appropriate entity of the Federal 
government (Sec. 39.170(f)(3)).

    If a complaint is not complete when it is filed, the Official must 
notify the complainant within 30 days that additional information is 
needed. The complainant must furnish the necessary information within 30 
days of receipt of the notice, or the complaint will be dismissed 
without prejudice. Filing an incomplete complaint within 180 days from 
the date of the alleged discrimination satisfies the requirement of 
subparagraph (d)(3), but the timeframes governing the Official's other 
obligations to process the complaint (see, e.g., Sec. 39.170(g)(1), 
Sec. 39.170(h)) do not begin to operate until the Official receives a 
complete complaint.

    Within 180 days of receipt of the complete complaint, the Official 
is to investigate the complaint, attempt an informal resolution, and, if 
informal resolution is not achieved, issue a letter of findings 
(Sec. 39.170(h)). Within the time limit, the Official should make every 
effort to achieve informal resolution whenever possible.

    In response to a suggestion from a commenter, the Department no 
longer refers to the letter of findings as ``preliminary.'' The

[[Page 748]]

word ``preliminary'' has been deleted because, if there is no appeal, 
the determination made in the letter of findings will constitute the 
final agency decision.

    Paragraph (h) requires that the Official's letter be sent to the 
complainant and respondent, and that it contain findings of fact and 
conclusions of law, the relief granted if discrimination is found, and 
notice of the right to appeal. The regulation provides that a party may 
appeal the Official's letter or findings to the Complaint Adjudication 
Officer (CAO). If neither party files an appeal from the letter of 
findings within 30 days after receipt of the letter, the letter will 
constitute the final decision of the agency (Sec. 39.170(i)(4)).

    The Department's final rule provides an opportunity for a hearing 
before an administrative law judge (ALJ). The ALJ would make a 
recommended decision to the CAO, who would make the final agency 
decision. The purpose of the hearing is to provide a forum in which the 
complainant or respondent can have an opportunity to be heard, confront 
witnesses, and present evidence so that an administrative law judge can 
issue a recommended decision that is well-reasoned and justified on the 
basis of the evidence presented.

    The opportunity for a hearing before an ALJ assures more 
impartiality and the appearance of more impartiality than a decision 
made by one agency official concerning other officials of the same 
agency. The Department expects that agency decisions based on a hearing 
record would more likely survive later judicial review.

    Under the regulation, another person or organization would be 
allowed to participate as a third party or amicus curiae if the ALJ 
determines that the petitioner has a legitimate interest in the 
proceedings, that participation will not duly delay the outcome, and 
that petitioner's participation may contribute materially to the 
disposition of the proceedings.

    The Department received comments on the proposed opportunity for a 
hearing before an administrative law judge. Some commenters were 
primarily concerned that by invoking a hearing before the ALJ with the 
procedural safeguards adopted from the Administrative Procedure Act 
(APA) (5 U.S.C. 554-557), the complainant would lose the right to a de 
novo review of the agency's final decision, because the APA allows a 
Federal court only to determine if the agency's final decisions are 
``arbitrary and capricious'' (5 U.S.C. 706(2)(A)). It is beyond our 
jurisdiction to specify that a de novo review is available to complaints 
seeking judicial review of final agency decisions. This issue is for the 
courts to decide. That is also true for the issue of the availability of 
a private right of action, either without invoking our compliance 
procedures or after the issuance of letters of findings.

    Given the inherent conflicts of interest in situations where 
complaints allege discrimination on the part of the Department, it is 
critically important to ensure that a complaint be reviewed in a fair, 
independent process. The availability of a hearing before an independent 
ALJ would provide the appearance as well as the actuality of an 
impartial compliance mechanism. The Department has therefore included 
the provision for a hearing in the final regulation.

    One comment requested the addition of a provision whereby the 
Department would award attorneys fees to complainants. Another comment 
suggested that the Equal Access to Justice Act (5 U.S.C. 504) might 
provide for the award of fees. Nothing contained in title V of the 
Rehabilitation Act provides for the agency award of attorneys fees in 
administrative proceedings other than those involving Federal 
employment. Nor does the EAJA and the Department's implementing 
regulations at 28 CFR part 24 provide for such awards in hearings 
conducted under Sec. 39.170(k). We have therefore included no attorneys 
fee provision in the current regulations.

    Under paragraph (1), the CAO renders a final agency decision after 
appeal without a hearing or after a hearing. The CAO directs appropriate 
remedial action if discrimination is found. The CAO's decision will 
involve reviewing the entire file, including the investigation report, 
letter of findings, and, if a hearing was held, the hearing record and 
recommended decision of the administrative law judge. The decision shall 
be made within 60 days of receipt of the complaint file or the hearing 
record.

    One commenter objected to the requirement in subparagraph (l)(1) 
that the CAO explain specifically a decision to reject or modify the 
ALJ's proposed findings, arguing that it would inappropriately limit the 
CAO's consideration of the issues. We have adopted the suggestion and 
eliminated the requirement.

    In response to recommendations from the Department's CAO and the 
Drug Enforcement Administration's ALJ, some changes have been made in 
the compliance procedures. Among the changes are a new requirement that 
the ALJ provide findings to all parties, not just the CAO, an added 
provision for filing exceptions to an ALJ's recommended decision, a 
delineation of the authorities of the ALJ, and a clarification of the 
responsibility for supervising compliance with the final agency decision 
between the Responsible Official and the CAO.

    The Department also received some comments on the appropriateness of 
providing for an appeal by either the complainant or

[[Page 749]]

respondent. Some commenters objected to allowing a respondent to obtain 
an administrative appeal because it could delay remedying 
discrimination. On the other hand, an impartial adjudicatory mechanism 
would require that opportunity is provided for both sides to appeal. For 
this reason, the Department finds it necessary and appropriate for both 
complainant and respondent to have the right to an administrative 
appeal.