[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
39.130 General prohibitions against discrimination.
39.149 Program accessibility: Discrimination prohibited.
39.150 Program accessibility: Existing facilities.
39.151 Program accessibility: New construction and alterations.
39.170 Compliance procedures.
Authority: 29 U.S.C. 794.
Source: Order No. 1065-84, 49 FR 35734, Sept. 11, 1984, unless
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
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
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
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
Official or Responsible Official means the Director of Equal
Employment Opportunity for the Department of Justice or his or her
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--
(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
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
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
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
(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
(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
(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
(2) Describe in detail the methods that will be used to make the
(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
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
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
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
(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
(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
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
(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.
(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
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
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.
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
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.
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
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).
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
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
Many commenters argued that the definition of ``qualified
handicapped person'' confused what should be two separate inquiries:
whether a person meets essential eligibility
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
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
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
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
(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
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.
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
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,
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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