[Federal Register Volume 79, Number 219 (Thursday, November 13, 2014)]
[Proposed Rules]
[Pages 67384-67396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26543]
=======================================================================
-----------------------------------------------------------------------
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Part 1251
[Document Number NASA-2014-0011]
RIN 2700-AD85
Discrimination on the Basis of Disability in Federally Assisted
Programs and Activities
AGENCY: National Aeronautics and Space Administration.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The National Aeronautics and Space Administration (NASA) is
proposing to amend its rules implementing Section 504 of the
Rehabilitation Act of 1973 (section 504), which prohibits
discrimination on the basis of disability in programs, services, and
activities by recipients of Federal financial assistance from NASA as
well as those programs, services, and activities conducted by NASA. The
revisions to this rule are part of NASA's retrospective plan under EO
13563 completed in August 2011.
DATES: Submit comments on or before December 15, 2014.
ADDRESSES: Comments must be identified with RIN 2700-AD85 and may be
sent to NASA via the Federal E-Rulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting
comments. Please note that NASA will post all comments on the internet
with changes, including any personal information provided.
NASA's full plan can be accessed at: http://www.nasa.gov/open/.
FOR FURTHER INFORMATION CONTACT: Robert Cosgrove, (202) 358-0446.
SUPPLEMENTARY INFORMATION:
Background
In this rulemaking, NASA is proposing to amend its section 504
regulations to incorporate changes to the definition of disability
required by the Americans with Disabilities Act (ADA) Amendments Act of
2008, include an affirmative statement of the longstanding requirement
for reasonable accommodations in programs, services, and activities,
include a definition of direct threat and a provision describing the
parameters of the existing direct threat defense to a claim of
discrimination, clarify the existing obligation to provide auxiliary
aids and services to qualified individuals with disabilities, update
the methods of communication that recipients may use to inform program
beneficiaries of their obligation to comply with section 504 to reflect
changes in technology, adopt updated accessibility standards applicable
to the design, construction, and alteration of buildings and
facilities, establish time periods for compliance with these updated
accessibility standards, provide NASA with access to recipient data and
records to determine compliance with section 504, and make
administrative updates to correct titles.
NASA is also proposing to amend its regulation to incorporate
changes required by the Rehabilitation Act Amendments of 1992 (1992
Amendments) by revising current sections 1251.2--Employment Practices
(Federally Assisted Programs) and 1251.540--Employment (Federally
Conducted Programs) and instead referencing the EEOC's ADA title I
regulation. The proposed rule also updates outdated terminology and
references that currently exist in Part 1251 and changes the word
``handicapped'' and similar variations of that word that appear
throughout Part 1251, replacing it with ``people first'' language
(e.g., ``individuals with disabilities'') consistent with the 1992
Amendments.
Section 504
NASA implements the requirements of Section 504 of the
Rehabilitation Act of 1973 (section 504), which prohibits
discrimination on the basis of disability in Federally conducted and
assisted programs or activities, through its regulation in Part 1251.
NASA's section 504 regulation applies to recipients to whom the Agency
extends Federal financial assistance, such as research, education and
training grants, and cooperative agreements, as well as programs,
services, and activities conducted by NASA. NASA's section 504
regulation at Sec. 1251.103 prohibits denial of the benefits of,
exclusion from participation in, or other discrimination against
qualified individuals with disabilities in programs or activities
because a recipient's facilities are inaccessible to or unusable by
persons with disabilities. Many of the entities that receive financial
assistance from NASA are also covered by Title II of the ADA (title
II), which prohibits discrimination on the basis of disability by
public entities (i.e., state and local governments and their agencies)
or Title III of the ADA (title III), which prohibits discrimination on
the basis of disability by: (1) Public accommodations (i.e., private
entities that own, operate, lease, or lease to places of public
accommodation); (2) newly constructed and altered commercial
facilities; and (3) private entities that offer certain examinations
and courses related to educational and occupational certification.
Definition of Disability--ADA Amendments Act of 2008
The ADA Amendments Act of 2008 (the ADA Amendments Act) was signed
into law in September 2008 and became effective on January 1, 2009.
Congress enacted the ADA Amendments Act to revise the ADA definition of
disability in order to ensure that this definition is broadly construed
and applied without extensive analysis and to supersede Supreme Court
decisions that had too narrowly interpreted the ADA's definition of a
disability. The ADA Amendments Act not only amended the definition of
disability applicable to the ADA but also amended the Rehabilitation
Act of 1973 to conform the section 504 definition of disability at 29
U.S.C. 705(20)(B) to the revised ADA definition. In this rulemaking,
NASA is proposing to amend its section 504
[[Page 67385]]
regulation to implement these revised requirements. NASA intends these
proposed regulatory changes to be consistent with the Department of
Justice's (DOJ's) proposed changes to its title II regulation to
incorporate the requirements of the ADA Amendments Act published on
January 30, 2014 [79 FR 4839].
Due to the changes that the ADA Amendments Act made to the
application of the definition of disability, participants in
recipients' programs, services, and activities who, in the past decade,
may not have been determined to have a disability under section 504 and
title II may now in fact be found to have a disability under those
laws. Section 504 and the ADA define disability as (1) a physical or
mental impairment that substantially limits a major life activity; (2)
a record of such impairment; or (3) being regarded as having such an
impairment [29 U.S.C. 705(9)(B); 42 U.S.C. 12102(1)]. The ADA
Amendments Act does not alter these three elements of the definition of
disability in the ADA and section 504, but it significantly changes how
the term ``disability'' is to be interpreted and adds important rules
of construction to inform that interpretation. Specifically, Congress
directed that the definition of disability shall be construed broadly
and that the determination of whether an individual has a disability
should not demand extensive analysis [42 U.S.C. 12102].
NASA's proposed revisions to the definition of disability are all
based on specific provisions in the ADA Amendments Act or specific
language in the legislative history. Since the ADA Amendments Act does
not change the meaning of the term ``physical or mental impairment,''
NASA is retaining the general regulatory definitions for this term with
only minor modifications consistent with DOJ's proposed revisions to
its Title II ADA regulations. First, NASA is proposing to add examples
of two new body systems--the immune system and the circulatory system--
that may be affected by a physical impairment. See 14 CFR
1251.102(h)(2)(A). In addition, ``dyslexia'' will be added to 14 CFR
1251.102(h)(2)(A) as one example of a specific learning disability that
falls within the meaning of the phrase ``physical or mental
impairment.''
The proposed revisions also expand the definition of ``major life
activities'' by providing a non-exhaustive list of major life
activities and specifically including the operation of major bodily
functions. Prior to the ADA Amendments Act, section 504 did not define
``major life activities,'' leaving delineation of illustrative examples
to agency regulations. The definition of ``disability'' in the NASA's
current section 504 regulations states that ``[m]ajor life activities
means functions such as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.''
See 14 CFR 1251.102(h)(2)(ii). The ADA, as amended, incorporates into
the statutory language a non-exhaustive list of major life activities
that includes, but is not limited to, ``caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working.'' See 42 U.S.C.
12102(2)(A). This list reflects Congress's concern that courts were
interpreting the term ``major life activities'' more narrowly than
Congress intended. See 42 U.S.C. 12101(b)(4). In Sec. Sec. 1251.102(h)
and 1251.503(h), NASA proposes to revise its section 504 regulatory
definitions of disability to incorporate the statutory examples as well
as to provide additional examples included in the EEOC title I final
regulation--reaching, sitting, and interacting with others. See 29 CFR
1630.2(i)(1)(i).
These proposed revisions also add rules of construction that should
be applied when determining whether an impairment substantially limits
a major life activity. The rules of construction state the following:
--That the term ``substantially limits'' shall be construed broadly in
favor of expansive coverage, to the maximum extent permitted by the
terms of the ADA;
--that an impairment is a disability if it substantially limits the
ability of an individual to perform a major life activity as compared
to most people in the general population;
--that the primary issue in a case brought under the ADA should be
whether the covered entity has complied with its obligations and
whether discrimination has occurred, not the extent to which the
individual's impairment substantially limits a major life activity;
--that in making the individualized assessment required by the ADA, the
term ``substantially limits'' shall be interpreted and applied to
require a degree of functional limitation that is lower than the
standard for ``substantially limits'' applied prior to the ADA
Amendments Act;
--that the comparison of an individual's performance of a major life
activity to the performance of the same major life activity by most
people in the general population usually will not require scientific,
medical, or statistical evidence;
--that mitigating measures other than ``ordinary eyeglasses or contact
lenses'' shall not be considered in assessing whether an individual has
a ``disability'' (mitigating measures include medications, prosthetic
devices, assistive devices, or learned behavioral or adaptive
neurological modifications that an individual may use to eliminate or
reduce the effects of an impairment);
--that an impairment that is episodic or in remission is a disability
if it would substantially limit a major life activity when active; and
--that an impairment that substantially limits one major life activity
need not substantially limit other major life activities in order to be
considered a substantially limiting impairment.
In keeping with the ADA Amendments Act, the proposed rule provides
that if a person seeks to establish coverage under section 504 using
the ``regarded as'' prong of the disability definition, that individual
need only establish that he or she has been subjected to an act
prohibited by section 504 because of an actual or perceived physical or
mental impairment. An individual will not be ``regarded as'' a person
with a disability if the impairment is both transitory (meaning that it
has an actual or expected duration of six months or less) and minor.
ADA Amendments Act, section 4(a) (codified as amended at 42 U.S.C.
12102).
Definition of Auxiliary Aids and Services
Although NASA's existing section 504 Federally assisted regulation
referenced the provision of auxiliary aids,\1\ it did not include a
definition. The proposed regulation includes a definition for auxiliary
aids and services, which is consistent with the definition used in the
ADA title II regulation at 28 CFR 35.104.
---------------------------------------------------------------------------
\1\ Although the current regulation references ``auxiliary
aids,'' the term has always been understood to mean ``auxiliary aids
and services,'' and the revised regulation references them
correctly.
---------------------------------------------------------------------------
Employment
NASA proposes to revise Section 1251.2--Employment Practices
(Federally Assisted Programs) and Section 1251.540--Employment
(Federally Conducted Programs) to conform to the Rehabilitation Act
Amendments of 1992 (Pub. L. 102-569, sec. 506) which amended title V to
make
[[Page 67386]]
the same employment standards set forth in title I of the ADA apply to
employment discrimination apply under section 504. As such, the
proposed rule deletes the existing requirements related to
discriminatory employment practices and references the standards
applied under Title I of the Americans with Disabilities Act of 1990
(42 U.S.C. 12111 et seq.) and to the extent such sections relate to
employment, the provisions of sections 501 through 504 and 510 of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and
12210), and the Equal Employment Opportunity Commission's ADA title I
regulation at 29 CFR Sec. 1630, as amended.
NASA is also proposing to clarify its role in the processing and
coordination of complaints alleging discrimination by its recipients,
Title I of the ADA (title I) prohibits discrimination against
individuals with disabilities employed in a business that has fifteen
or more employees. Title I is enforced by the United States Equal
Employment Opportunity Commission (EEOC) and is the designated Federal
agency for the processing and adjudication of all complaints filed
under title I. Many of the Agency's recipients may fall under the
jurisdiction of title I and may also file a complaint alleging
discrimination under section 504. NASA has authority to receive
complaints of discrimination and has developed procedures to identify
when NASA has jurisdiction to process such complaints or when they must
be referred to the EEOC or DOJ for processing. In order to avoid
duplication of investigative and enforcement efforts, NASA will process
and coordinate any complaints filed under this Part in accordance with
the Equal Employment Opportunity Commission (EEOC) procedures set forth
in 29 CFR part 1640 and the Department of Justice (DOJ) procedures set
forth at 28 CFR part 37 (Procedures for Coordinating the Investigation
of Complaints or Charges of Employment Discrimination Based on
Disability Subject to the Americans with Disabilities Act and Section
504 of the Rehabilitation Act of 1973).
NASA is also proposing to clarify its role in the processing and
adjudication of section 504 complaints in its Federally conducted
programs.
Provision of Auxiliary Aids and Services
NASA's current section 504 Federally assisted regulation at Sec.
1251.103(b)(3) provides that ``[r]ecipients shall take appropriate
steps to ensure that no handicapped individual is denied the benefits
of, excluded from participation in, or otherwise subjected to
discrimination in any program or activity receiving Federal financial
assistance because of the absence of auxiliary aids for individuals
with impaired sensory, manual, or speaking skills.''
This Notice of Proposed Rule Making (NPRM) proposes to clarify this
existing obligation by providing affirmative language explaining this
obligation. Similar language is already included in NASA's Federally
conducted regulation at Sec. 1251.560. (Communications)
Notice of Recipient Obligations To Comply With Section 504
NASA's section 504 regulations at Sec. 1251.107(a) require a
recipient that employs 15 or more persons to take appropriate initial
and continuing steps to notify participants, beneficiaries, applicants,
and employees, including those with or hearing and vision disabilities,
and unions or professional organizations holding collective bargaining
or professional agreements with the recipient that it does not
discriminate on the basis of disability in violation of section 504 and
this part. The notification shall state, where appropriate, that the
recipient does not discriminate in admission or access to, or treatment
or employment in, its programs or activities. The notification shall
also include an identification of the responsible employee designated
to coordinate the recipient's efforts to comply with section 504
pursuant to Sec. 1251.106(a). The regulation requires the recipient to
make the initial notification required by this paragraph within 90 days
of the effective date of this part. This regulation also delineates the
methods of initial and continuing notification to include ``the posting
of notices, publication in newspapers and magazines, placement of
notices in recipient's publication, and distribution of memoranda or
other written communications.'' NASA recognizes that the methods by
which a recipient communicates with interested persons has changed
significantly since these regulations were promulgated and this
regulation as currently written does not reflect the current and future
state of information dissemination. With the advent of broad
application of the Internet and the Web, as well as electronic
publishing, electronic mail, text messaging, and social media
platforms, NASA has determined that the regulation does not adequately
include electronic methods of communication. Furthermore, NASA's grant
recipients currently rely on their Web sites, email, text messaging,
and social media to communicate with and provide information to the
beneficiaries of its programs, services, and activities. Many of the
publications that were available in print such as pamphlets, brochures,
maps, course catalogs, policies, and procedures are now posted on the
recipients' Web sites and can be printed or downloaded by the
interested person viewing the Web site. In revising the regulation to
include electronic communications, NASA is also providing its grant
recipients the ability to provide this information in a more cost-
effective and expeditious manner than by relying on printed media.
Information or programs provided to the public on recipient's Web sites
should be provided in an accessible format in order to ensure equal
access to the recipient's programs, services, and activities.
Accessibility Standards for New Construction
NASA's section 504 regulations at Sec. 1251.302(c) require that if
construction of a recipient's facility commenced after the effective
date of the regulations (January 18, 1991), the facility must be
designed and constructed so that it is readily accessible to and usable
by persons with disabilities. These regulations also require that
facility alterations commenced after January 18, 1991, that affect or
may affect the facility's usability must be accomplished so that, to
the maximum extent feasible, the altered portion of the facility is
readily accessible and usable by persons with disabilities.
For facilities subject to the new construction and alterations
requirements, the NASA regulation at Sec. 1251.302(c) has always
incorporated by reference an accessibility design standard, such that
construction or alterations in conformance with that standard would be
deemed in compliance with NASA's section 504 regulation. Under the
current regulation, new construction or alterations made in conformance
with the Uniform Federal Accessibility Standards (UFAS) are deemed to
be in compliance with NASA's section 504 regulation, although a
recipient may depart from UFAS when other methods provide equivalent or
greater access to and usability of the facility.
The adoption of UFAS as an accessibility design standard in NASA's
section 504 regulation occurred in 1991 as part of a joint rulemaking
with other Federal agencies, led by the DOJ pursuant to its
coordinating authority for section 504 under Executive Order 12250. [51
FR 26862 July 28, 1986, as amended and 55 FR 52138, 52140, December 19,
1990]. NASA and the
[[Page 67387]]
other participating agencies adopted UFAS (effective January 18, 1991)
to diminish the possibility that some recipients of Federal financial
assistance would face conflicting enforcement standards either between
section 504 and the Architectural Barriers Act of 1968, or among the
section 504 regulations of different Federal agencies. [55 FR 52136-37
(1990)]
Accessibility Standards in the ADA Regulations Issued by DOJ
DOJ's 1991 title II ADA regulation incorporated by reference two
sets of standards for new construction and alterations: UFAS and the
1991 ADA Standards for Accessible Design (1991 Standards) except that
the elevator exemption contained at sections 4.1.3(5) and 4.1.6(1)(k)
of the 1991 Standards did not apply. The 1991 title II ADA regulations
also permitted departures from the particular requirements of either
standard by the use of other methods when it was clearly evident that
equivalent access to the facility or part of the facility is thereby
provided. UFAS was included as an option for title II entities because
it was deemed the accessibility standard under existing section 504
accessibility regulations. UFAS was not an accessibility option under
the ADA for title III entities, even if they were also subject to an
agency section 504 regulation.
On September 15, 2010, DOJ published revised title II and title III
ADA regulations that included the adoption of revised accessibility
standards, the 2010 ADA Standards for Accessible Design (2010
Standards). [75 FR 56164]. The 2010 Standards were based on the 2004
ADA Accessibility Guidelines adopted by the United States Access Board
in 2004. (36 CFR parts 1190 and 1191). The 2010 Standards, which now
supersede the 1991 Standards, were adopted by DOJ through formal
rulemaking and were subject to substantial scrutiny and deliberation,
including consideration of costs and benefits. Compliance with the 2010
Standards was required for all new construction and alterations that
commenced on or after March 15, 2012. [75 FR 56164, 56182 (Sept. 15,
2010)]. As of March 15, 2012, UFAS was no longer an option for
compliance with title II.
NASA's Revisions to Its Section 504 Federally Assisted Regulations To
Adopt the 2010 Standards
In the preamble to the final title II regulation, DOJ stated that
Federal agencies that extend Federal financial assistance should revise
their section 504 regulations to adopt the 2010 Standards as section
504 standards for new construction and alterations [75 FR 56164, 56213
Sep. 15, 2010]. DOJ also stated its intent to work with Federal
agencies ``to revise their section 504 regulations in the near future
to adopt the 2010 Standards as the appropriate accessibility standard
for their recipients.'' In coordination with DOJ, we are adopting the
2010 Standards as set forth in 28 CFR part 35, in lieu of UFAS, for new
construction and alterations commencing on or after one year from the
publication date of the final rule in the Federal Register. Therefore,
as discussed below, the proposed rule specifies that all buildings and
facilities newly constructed or altered by recipients shall comply with
the requirements for a ``public building or facility'' as set forth in
the 2010 Standards.
Under NASA's section 504 regulations, the same accessibility
standards for new construction and alterations are applied to all
recipients regardless of whether they are public or private entities
that have an obligation to comply with title II or title III of the
ADA, respectively. That is, both private and public recipients are
subject to the same requirements for the purposes of compliance with
NASA's section 504 regulations. The 2010 Standards impose several
different requirements for buildings and facilities covered by title II
as compared to buildings and facilities covered by title III. For
example, Exception 1 of section 206.2.3 of the 2010 Standards exempts
certain multistory buildings owned by private entities from the
requirement to provide an elevator. This exemption does not apply to
buildings owned by public entities. Similarly, the 2010 Standards
specify TTY requirements for public buildings that are different than
those required for private buildings. In order to maintain consistency
in the requirements applicable to all its recipients, regardless of
whether they are public or private entities, NASA is requiring all
buildings and facilities covered by its section 504 Federally assisted
rule to comply with the requirements for a ``public building or
facility,'' which are the requirements for buildings subject to title
II of the ADA.
The NPRM proposes that compliance with the 2010 Standards is
required one year from the publication date of the final rule in the
Federal Register. In the period between the effective date of the final
rule and the compliance date for new construction and alterations
announced in the final rule, the NPRM proposes that recipients shall be
permitted to choose to use the 2010 Standards in lieu of UFAS.\2\
However, regardless of which accessibility standard recipients choose
to use during this time period, recipients may not designate one
accessibility standard for part of a facility and the other
accessibility standard for the remainder.
---------------------------------------------------------------------------
\2\ This choice is in keeping with the Department of Justice
March 2011 memorandum advising Federal agencies that until such time
as they update their agency's regulation implementing the Federally
assisted provisions of section 504 of the Rehabilitation Act of 1973
(section 504), they may notify covered entities that they may use
the 2010 ADA Standards for Accessible Design (2010 Standards) as an
acceptable alternative to the Uniform Federal Accessibility
Standards (UFAS). (www.ada.gov/504_memo_standards.htm).
---------------------------------------------------------------------------
The NPRM also proposes to adopt the approach used in both title II
at 28 CFR 35.151(c) and title III at 28 CFR 36.406(a) to determine the
``triggering event'' for applying the proposed standards to new
construction and alterations under section 504. For NASA recipients
that are public entities (i.e., state and local governments and their
agencies and organizations) who would otherwise comply with title II,
the triggering event will be the commence of physical construction or
alterations. For private entities who would otherwise comply with title
III (i.e., privately owned and operated organizations), the triggering
event is the date of: a) The last application for a building permit or
permit extension certified to be complete by a state, county, or local
government; or b) in those jurisdictions where the government does not
certify completion of applications, the date when the last application
for a building permit or permit extension is received by the State,
county, or local government; or c) if no permit is required, the start
of physical construction or alterations. For both public and private
entities, NASA proposes to adopt the language found at 28 CFR
35.151(c)(4) in title II and 28 CFR 36.406(a)(4) in title III to make
it clear that the date of ceremonial groundbreaking or the date a
structure is razed to make it possible for construction of a facility
to take place does not qualify as the commencement of physical
construction.
Reasonable Accommodation (Non-Employment)
In Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct.
2361 (1979), the Supreme Court held that a person is not protected by
section 504 if, in order for the person to meet reasonable eligibility
standards, the person needs program or policy modifications that would
fundamentally alter the nature of the provider's program or impose
undue financial and
[[Page 67388]]
administrative burdens (applicant who was denied admission to college
nursing program because of her hearing disability asked college to
provide hearing supervisor to aid her in communicating with patients,
to dispense with certain required courses, and to train her to hold
some, but not all, positions available to a registered nurse). Although
the Court also opined in Davis that there may be situations where a
refusal to modify an existing program might be discriminatory, this
issue was posed to, and analyzed by, the Court in terms of the proper
interpretation of the statutory term ``otherwise qualified.'' As a
result, agency Section 504 regulations \3\ originally promulgated after
the Davis decision addressed the obligation to provide reasonable
accommodations/modifications in the definition section for ``qualified
handicapped person'' (rather than in the nondiscrimination section).\4\
---------------------------------------------------------------------------
\3\ See, e.g., 14 CFR 1251.503 (NASA's section 504 Federally
conducted regulation.)
\4\ With respect to any agency program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, the regulatory definition of a ``qualified
handicapped person'' (revised to ``qualified individual with a
disability'' in this part) is an individual who meets the essential
eligibility requirements of the program and who can achieve the
purpose of the program or activity without modifications in the
program or activity that the agency can demonstrate would result in
a fundamental alteration in its nature.
---------------------------------------------------------------------------
Subsequently, in Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712
(1985) (Medicaid recipients not entitled to relief under section 504
against state's reduction in the number of inpatient hospital days that
state Medicaid would pay), the Court clarified its Davis analysis. In
that case, the Court described Davis as striking a balance between the
need to provide qualified individuals with disabilities with meaningful
access to the benefit the grantee offers and the legitimate interests
of Federal grantees in preserving the integrity of their programs (469
U.S. at 300-301). It further stated that, although its opinion in Davis
``addressed that portion of section 504 that requires that a
handicapped individual be `otherwise qualified' before the
nondiscrimination principle of section 504 becomes relevant, . . . the
question of who is `otherwise qualified' and what actions constitute
`discrimination' under the section would seem to be two sides of a
single coin; the ultimate question is the extent to which a grantee is
required to make reasonable modifications [accommodations] in its
programs for the needs of the handicapped.'' (469 U.S. at 300, note
19).
In addition, in keeping with these decisions of the Supreme Court
over the past decades, Federal courts and Federal agencies have
regularly acknowledged the affirmative obligation to provide qualified
individuals with disabilities reasonable accommodations in programs,
services, and activities.
Similarly, Congress, in the ADA at 42 U.S.C. 12182(b)(2)(A)(ii),
and DOJ, in its ADA regulations at 28 CFR 35.130(b)(7) and 28 CFR
36.302, stated the obligation as a positive requirement to make
reasonable changes in policies, practices, or procedures when necessary
to avoid discrimination on the basis of disability. Accordingly, and
with the approval of the DOJ pursuant to its section 504 coordination
authority, we are proposing to add to the section 504 rule at
Sec. Sec. 1251.111 (Federally Assisted Programs) and 1251.581
(Federally Conducted Programs) a provision stating that a recipient
must provide reasonable accommodations by making changes to policies,
practices, or procedures when necessary to avoid discrimination on the
basis of disability, unless the covered entity can show that the
accommodations would result in a fundamental alteration in the nature
of its service, program, or activity or impose undue financial and
administrative burdens. The term ``reasonable accommodation'' is
intended to have the same meaning as the term reasonable modifications
under title II of the ADA (and the title II implementing regulation)
and not the same meaning as ``reasonable accommodation'' in title I of
the ADA (and the title I implementing regulation) covering employment.
However, unlike reasonable modifications under title II, the obligation
to provide reasonable accommodations under section 504 is limited by
both the fundamental alteration and the undue financial and
administrative burden defenses.
Qualified Individual With a Disability
NASA is proposing to revise Sec. 1251.102(k) Qualified Individual
with a Disability in order to streamline the language and update the
references to employment to cite to the EEOC title I ADA regulation.
Direct Threat
In School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273,107
S.Ct. 1123 (1987) (school board dismissed teacher after a third relapse
of tuberculosis within a two-year period), the Court held that (i)
section 504 covers individuals with contagious diseases and (ii) the
determination of whether a person with a contagious disease is
otherwise qualified must be made on an individualized basis, taking
into account the nature of the risk (how the disease is transmitted),
duration of the risk (how long is the carrier infectious), severity of
the risk (what is the potential harm to third parties), and probability
the disease will be transmitted and will cause varying degrees of harm.
The individualized inquiry must include appropriate findings of fact
about these factors, based on reasonable medical judgments given the
state of medical knowledge; based on these findings, a determination
must be made as to whether the individual's disability could be
reasonably accommodated.\5\ This concept was incorporated by Congress
into the ADA where it was termed a ``direct threat.'' The ADA
regulations for titles II and III incorporate provisions allowing for
determinations of ``direct threat'' in Sec. Sec. 35.104 and 36.104
(definitions) and Sec. Sec. 35.139 and 36.208. Accordingly, and with
the approval of DOJ pursuant to its coordination authority under
section 504, we are proposing to revise our section 504 regulation to
include language addressing direct threat consistent with the language
included in the ADA title II regulation. See proposed Sec. Sec.
1251.110 (Federally Assisted Programs) and 1251.580 (Federally
Conducted Programs).
---------------------------------------------------------------------------
\5\ While Arline speaks to ``direct threat'' in terms of
allegations that an individual with a ``contagious disease'' may
pose a danger to the health and safety of others, the individualized
inquiry and the specific analysis required by Arline and this
regulation applies to all allegations that a person with a
disability poses a ``direct threat'' to the health or safety to
others.
---------------------------------------------------------------------------
Procedures for Compliance
Federal agencies that have the responsibility to ensure that their
recipients comply with civil rights regulations that prohibit
discrimination in programs, services, and activities that receive
Federal financial assistance have provisions in their regulations that
provide the authority for agencies to ensure compliance and conduct
enforcement activities. NASA's section 504 regulation at Sec. 1251.400
incorporates by reference several provisions of the Title VI of the
Civil Rights Act of 1964 regulation that authorize NASA to conduct
compliance activities to ensure that recipients do not discriminate on
the basis of disability in their programs, services, and activities.
These provisions of the title VI regulation require NASA to conduct
periodic compliance reviews of recipient programs; receive, investigate
and resolve complaints of
[[Page 67389]]
discrimination on the basis of disability alleged by recipient
beneficiaries; \6\ conduct hearings to determine whether Federal
financial assistance is to be suspended, revoked, or withheld due to a
recipient's failure to comply with any provisions of section 504; \7\
and judicial review of NASA actions to enforce Section 504.\8\ However,
the section 504 regulation does not incorporate by reference three
additional title VI regulatory provisions that are included in other
Federal agency section 504 regulations that pertain to procedures for
compliance and are critical to effective enforcement of section 504. In
contrast, NASA's civil rights regulations that prohibit discrimination
on the basis of sex (Title IX of the Education Amendments of 1972) \9\
and age (Age Discrimination Act of 1975),\10\ as well as title VI, do
have these provisions.
---------------------------------------------------------------------------
\6\ 14 CFR 1250.106.
\7\ 14 CFR 1250.108.
\8\ 14 CFR 1250.110.
\9\ 14 CFR 1253.605.
\10\ 14 CFR subpart 1252.2.
---------------------------------------------------------------------------
NASA proposes to amend its section 504 regulation at Sec. 1251.400
to incorporate by reference those title VI regulatory provisions
omitted from this section 504 Federally assisted regulation that are
necessary for NASA to ensure that recipients and subrecipients are
complying with this part. Accordingly, NASA will incorporate by
reference into Sec. 1251.400, NASA's title VI regulation at Sec.
1250.105 (Compliance Information), which requires NASA to seek the
cooperation of recipients in obtaining compliance with this part;
requires recipients and subrecipients to keep records and provide
reports to NASA upon request to determine compliance with this part;
requires recipients to permit NASA to have access to records and
sources of information to determine compliance with this part; and
requires recipients to make available information regarding provisions
of this part in a manner deemed appropriate by NASA to apprise
interested persons of the rights and protections afforded to them by
this part. NASA will also incorporate by reference into Sec. 1251.400,
NASA's title VI regulation at Sec. 1250.107 (Procedures for Effecting
Compliance), which delineates the process by which NASA will effectuate
compliance with this part through the termination, suspension, or
refusal to grant or continue Federal financial assistance if a
recipient's noncompliance with this part cannot be remedied through
informal means. Lastly, NASA will incorporate by reference into Sec.
1251.400, NASA's title VI regulation at Sec. 1250.109 (decisions and
notices) which delineates the process for rendering decisions and
findings of the hearings conducted in accordance with Sec. 1250.107.
NASA's Revisions to its Section 504 Regulation for Federally Conducted
Programs
In addition to its proposed revisions to its section 504 Federally
assisted regulation at Sec. 1215.1, NASA is also proposing to revise
its section 504 regulation that prohibits discrimination on the basis
of disability in programs, services, and activities conducted by NASA
at Sec. 1251.5. In 1978, Congress extended application of section 504
to programs and activities conducted by Federal Executive agencies and
the United States Postal Service. Pursuant to Executive Order 12250,
the Department of Justice developed a prototype regulation to implement
the 1978 amendment for Federally conducted programs and activities.
More than 80 Federal agencies, including NASA, have now issued final
regulations based on that prototype, prohibiting discrimination based
on handicap in the programs and activities they conduct. Despite the
large number of regulations implementing section 504 for Federally
assisted and Federally conducted programs and activities, there is very
little variation in their substantive requirements, or even in their
language. The regulatory revisions in this rulemaking do not propose
different requirements for NASA's Federally conducted programs, with
the exception of the applicable accessibility standards for new and
altered facilities.\11\
---------------------------------------------------------------------------
\11\ Facilities designed, built, or altered with Federal dollars
or leased by Federal agencies are subject to the Architectural
Barriers Act (ABA). The General Services Administration (GSA) is
responsible for prescribing the accessibility standards for all of
these facilities (other than residential structures and Department
of Defense and U.S. Postal Service facilities). Thus, this rule will
reference the updated ABA Accessibility Standards adopted by GSA in
2007. See 41 CFR part 102-76 Subpart C.
---------------------------------------------------------------------------
Specifically, NASA proposes to revise the definition of
``disability'' and ``individual with a disability'' at Sec. 1251.503
by incorporating by reference the companion definitions in the revised
Federally assisted programs regulation at Sec. 1251.102(h) and (k).
NASA also proposes to revise the definition of ``direct threat'' and
revise the regulatory standards for direct threat, employment, and
reasonable accommodation in the Federally conducted programs regulation
to conform with the companion regulatory standards for direct threat
found at Sec. 1251.110, employment found at Sec. 1251.2, and
reasonable accommodation found at Sec. 1251.111. Lastly, NASA proposes
to revise its Federally conducted programs regulation at Sec. 1251.551
to update the regulatory reference to the GSA standards applicable to
Federal buildings subject to the Architectural Barriers Act for new
construction and alterations, which is no longer at GSA Federal
Management Regulation 41 CFR 101-19.600 to 101-19.607, but is now found
at 41 CFR part 102-76, subpart C.
Statutory Authority
The National Aeronautics and Space Act (the Space Act), 51 U.S.C.
20113 (a), authorizes the Administrator of the National Aeronautics and
Space Administration (NASA) to make, promulgate, issue, rescind, and
amend rules and regulations governing the manner of its operations and
the exercise of the powers vested in it by law.
Regulatory Analysis
Executive Order 12866 and Executive Order 13563
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
This proposed rule has been designated a ``significant regulatory
action,'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, this rule has been reviewed by the
Office of Management and Budget.
Regulatory Flexibility Act
It has been certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
Paperwork Reduction Act Statement
This rule does not contain an information collection requirement
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
Tribal governments, in the aggregate, or by the
[[Page 67390]]
private sector, of $100,000,000 or more in any one year, and it will
not significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996 (as
amended), 5 U.S.C. 804. This rule will not result in an annual effect
on the economy of $100,000,000 or more; a major increase in costs or
prices; or significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based companies to compete with foreign-based companies in
domestic and export markets.
List of Subjects in 14 CFR Part 1251
Administrative practice and procedure, civil rights, equal
employment opportunity, Federal buildings and facilities, and
individuals with disabilities.
For the reasons stated in the preamble, the National Aeronautics
and Space Administration proposes to amend 14 CFR part 1251 as follows:
PART 1251--NONDISCRIMINATION ON BASIS OF DISABILITY
0
1. The authority citation for part 1251 is revised to read as follows:
Authority: Sec. 504 (29 U.S.C. 794)
0
2. Revise the heading of part 1251 to read as set forth above.
0
3. Remove the following words wherever they appear in part 1251 and add
in their place as indicated in the table below.
------------------------------------------------------------------------
Remove Add in its place
------------------------------------------------------------------------
handicap............................... disability.
handicaps.............................. disabilities.
handicapped person..................... individual with a disability.
handicapped persons.................... individuals with a disability.
handicapped individual................. individual with a disability.
handicapped individuals................ individuals with a disability.
individuals with handicaps............. individuals with a disability.
qualified handicapped individual....... qualified individual with a
disability.
qualified handicapped individuals...... qualified individuals with a
disability.
qualified individuals with handicaps... qualified individuals with a
disability.
qualified handicapped applicants or qualified applicants or
employees. employees with a disability.
nonhandicapped persons................. persons who do not have a
disability.
------------------------------------------------------------------------
Subpart 1251.1--General Provision
0
4. Revise Sec. 1251.100 to read as follows:
Sec. 1251.100 Purpose and broad coverage.
(a) General. This part effectuates Section 504 of the
Rehabilitation Act of 1973, which is designed to eliminate
discrimination on the basis of handicap in any program or activity
receiving Federal financial assistance.
(b) Broad coverage. Consistent with the Americans with Disabilities
Amendments Act of 2008 (ADAA) and its purpose of reinstating a broad
scope of protection under the Americans with Disabilities Act and this
part, the definition of disability in this chapter shall be construed
in favor of broad coverage of individuals under this part, to the
maximum extent permitted by the terms of this part.
0
5. Amend Sec. 1251.102 as follows:
0
a. In paragraph (c), remove the word ``Assistant'' and add in its place
the word ``Associate'' wherever it occurs and add the words ``Diversity
and'' after the word ``for'';
0
b. In paragraph (d), remove the word ``entry'' and add in its place the
word ``entity'';
0
c. Revise paragraphs (h)(1)(iii) and (h)(2)(i) through (iv);
0
d. Add paragraphs (h)(2)(v) and (vi);
0
e. Revise paragraphs (i) and (j); and
0
f. Add paragraphs (l) through (m).
The revisions and additions read as follows:
Sec. 1251.102 Definitions.
* * * * *
(h) * * *
(1) * * *
(iii) Being regarded as having such an impairment as described in
paragraph (h)(1)(v)(A) of this section. This means that the individual
has been subjected to an action prohibited by this part because of an
actual or perceived impairment that is not both ``transitory and
minor.''
(A) Rules of construction (1) An individual may establish coverage
under any one or more of the three prongs of the definition of
disability in this paragraph (h)(1), the ``actual disability'' prong in
paragraph (h)(1)(i) of this section, the ``record of'' prong in
paragraph (h)(1)(ii) of this section, or the ``regarded as'' prong in
paragraph (h)(1)(iii) of this section.
(2) Where an individual is not challenging a recipient's failure to
provide reasonable accommodations under Sec. 1251.111, it is generally
unnecessary to proceed under the ``actual disability'' or ``record of''
prongs, which require a showing of an impairment that substantially
limits a major life activity or a record of such an impairment. In
these cases, the evaluation of coverage can be made solely under the
``regarded as'' prong of the definition of disability, which does not
require a showing of an impairment that substantially limits a major
life activity or a record of such an impairment. An individual may
choose, however, to proceed under the ``actual disability'' or ``record
of'' prong regardless of whether the individual is challenging a public
entity's failure to provide reasonable accommodations.
(B) [Reserved]
(2) * * *
(i) Physical or mental impairment means:
(A) 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, genitourinary, immune, circulatory, hemic and
lymphatic, skin, and endocrine; or
(B) Any mental or psychological disorder such as an intellectual
disability, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The phrase ``physical or mental
impairment''
[[Page 67391]]
includes, but is not limited to, such contagious and noncontagious
diseases and conditions as orthopedic, visual, speech and hearing
impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple
sclerosis, cancer, heart disease, diabetes, intellectual disability,
emotional illness, specific learning disabilities (including but not
limited to dyslexia), HIV disease (whether symptomatic or
asymptomatic), tuberculosis, drug addiction, and alcoholism.
(C) The phrase ``physical or mental impairment'' does not include
homosexuality or bisexuality.
(ii) Major life activities include, but are not limited to:
(A) Caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, sitting, reaching, lifting,
bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, interacting with others, and working; and
(B) The operation of a major bodily function, including functions
of the immune system, special sense organs and skin; normal cell
growth; and digestive, genitourinary, bowel, bladder, neurological,
brain, respiratory, circulatory, cardiovascular, endocrine, hemic,
lymphatic, musculoskeletal, and reproductive functions. The operation
of a major bodily function includes the operation of an individual
organ within a body system.
(C) In determining other examples of major life activities, the
term ``major'' shall not be interpreted strictly to create a demanding
standard for disability. Whether an activity is a ``major life
activity'' is not determined by reference to whether it is of ``central
importance to daily life.''
(iii) Substantially limits--(A) Rules of construction. The
following rules of construction apply when determining whether an
impairment substantially limits an individual in a major life activity.
(1) The term ``substantially limits'' shall be construed broadly in
favor of expansive coverage, to the maximum extent permitted by the
terms of the ADA Amendments Act of 2008. ``Substantially limits'' is
not meant to be a demanding standard.
(2) An impairment is a disability within the meaning of this part
if it substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general
population. An impairment need not prevent, or significantly or
severely restrict, the individual from performing a major life activity
in order to be considered substantially limiting.
(3) The primary object of attention in cases brought under section
504 should be whether recipients have complied with their obligations
and whether discrimination has occurred, not the extent to which an
individual's impairment substantially limits a major life activity.
Accordingly, the threshold issue of whether an impairment substantially
limits a major life activity should not demand extensive analysis.
(4) The determination of whether an impairment substantially limits
a major life activity requires an individualized assessment. However,
in making this assessment, the term ``substantially limits'' shall be
interpreted and applied to require a degree of functional limitation
that is lower than the standard for substantially limits applied prior
to the ADA Amendments Act.
(5) The comparison of an individual's performance of a major life
activity to the performance of the same major life activity by most
people in the general population usually will not require scientific,
medical, or statistical evidence. Nothing in this paragraph is
intended, however, to prohibit or limit the use of scientific, medical,
or statistical evidence in making such a comparison where appropriate.
(6) The determination of whether an impairment substantially limits
a major life activity shall be made without regard to the ameliorative
effects of mitigating measures. However, the ameliorative effects of
ordinary eyeglasses or contact lenses shall be considered in
determining whether an impairment substantially limits a major life
activity. Ordinary eyeglasses or contact lenses are lenses that are
intended to fully correct visual acuity or to eliminate refractive
errors.
(7) An impairment that is episodic or in remission is a disability
if it would substantially limit a major life activity when active.
(8) An impairment that substantially limits one major life activity
need not substantially limit other major life activities in order to be
considered a substantially limiting impairment.
(9) The six-month ``transitory'' part of the ``transitory and
minor'' exception in paragraph (h)(3) of this section does not apply to
the ``actual disability'' or ``record of'' prongs of the definition of
disability. The effects of an impairment lasting or expected to last
fewer than six months can be substantially limiting within the meaning
of this section for establishing an actual disability or a record of a
disability.
(B) Predictable assessments. (1) The principles set forth in Sec.
1251.102(h)(2)(iii) are intended to provide for more generous coverage
and application of section 504's prohibition on discrimination through
a framework that is predictable, consistent, and workable for all
individuals and entities with rights and responsibilities under section
504.
(2) Applying the principles set forth in Sec. 1251.102(h)(2)(iii)
the individualized assessment of some types of impairments will, in
virtually all cases, result in a determination of coverage under Sec.
1251.102(h)(1)(i) (the ``actual disability'' prong) or Sec.
1251.102(h)(1)(ii) (the ``record of'' prong). Given their inherent
nature, these types of impairments will, as a factual matter, virtually
always be found to impose a substantial limitation of a major life
activity. Therefore, with respect to these types of impairments, the
necessary individualized assessment should be particularly simple and
straightforward.
(3) For example, applying the principles set forth in Sec.
1251.102(h)(2)(iii) it should easily be concluded that the following
types of impairments will, at a minimum, substantially limit the major
life activities indicated:
(i) Deafness substantially limits hearing and auditory function;
(ii) Blindness substantially limits visual function;
(iii) An intellectual disability substantially limits reading,
learning, and problem solving;
(iv) Partially or completely missing limbs or mobility impairments
requiring the use of a wheelchair substantially limit musculoskeletal
function;
(v) Autism substantially limits learning, social interaction, and
communication;
(vi) Cancer substantially limits normal cell growth;
(vii) Cerebral palsy substantially limits brain function;
(viii) Diabetes substantially limits endocrine function;
(ix) Epilepsy, muscular dystrophy, and multiple sclerosis
substantially limit neurological function;
(x) Human Immunodeficiency Virus (HIV) infection substantially
limits immune function; and
(xi) Major depressive disorder, bipolar disorder, post-traumatic
stress disorder, traumatic brain injury, obsessive compulsive disorder,
and schizophrenia substantially limit brain function. The types of
impairments described in this paragraph may substantially limit
additional major life activities not explicitly listed above.
(C) Condition, manner or duration. (1) At all times taking into
account the principles in Sec. 1251.102(h)(2)(iii), in determining
whether an individual is
[[Page 67392]]
substantially limited in a major life activity, it may be useful in
appropriate cases to consider, as compared to most people in the
general population, the conditions under which the individual performs
the major life activity; the manner in which the individual performs
the major life activity; or the duration of time it takes the
individual to perform the major life activity, or for which the
individual can perform the major life activity.
(2) Consideration of facts such as condition, manner, or duration
may include, among other things, consideration of the difficulty,
effort or time required to perform a major life activity; pain
experienced when performing a major life activity; the length of time a
major life activity can be performed; or the way an impairment affects
the operation of a major bodily function. In addition, the non-
ameliorative effects of mitigating measures, such as negative side
effects of medication or burdens associated with following a particular
treatment regimen, may be considered when determining whether an
individual's impairment substantially impairs a major life activity.
(3) In determining whether an individual has a disability under the
``actual disability'' or ``record of'' prongs of the definition of
disability, the focus is on how a major life activity is substantially
limited, not on what outcomes an individual can achieve. For example,
someone with a learning disability may achieve a high level of academic
success, but may nevertheless be substantially limited in one or more
major life activities, including, but not limited to, reading, writing,
speaking, or learning because of the additional time or effort he or
she must spend to read, write, speak, or learn compared to most people
in the general population.
(D) Mitigating measures include, but are not limited to:
(1) Medication, medical supplies, equipment, appliances, low-vision
devices (defined as devices that magnify, enhance, or otherwise augment
a visual image, but not including ordinary eyeglasses or contact
lenses), prosthetics including limbs and devices, hearing aid(s) and
cochlear implant(s) or other implantable hearing devices, mobility
devices, and oxygen therapy equipment and supplies.
(2) Use of assistive technology;
(3) Reasonable accommodations or auxiliary aids or services as
defined in this section;
(4) Learned behavioral or adaptive neurological modifications; or
(5) Psychotherapy, behavioral therapy, or physical therapy.
(iv) Has a record of such an impairment means:
(A) Broad construction. Whether an individual has a record of an
impairment that substantially limited a major life activity shall be
construed broadly to the maximum extent permitted by section 504 and
should not demand extensive analysis. An individual will be considered
to fall within this prong of the definition of disability if the
individual has a history of an impairment that substantially limited
one or more major life activities when compared to most people in the
general population, or was misclassified as having had such an
impairment. In determining whether an impairment substantially limited
a major life activity, the principles articulated in Sec.
1251.102(h)(2)(iii) apply.
(B) Reasonable accommodation. An individual with a record of a
substantially limiting impairment may be entitled to a reasonable
accommodation if needed and related to the past disability.
(v) Regarded as having such an impairment means:
(A) An individual is ``regarded as having such an impairment'' if
the individual is subjected to an action prohibited by the ADA because
of an actual or perceived physical or mental impairment, whether or not
that impairment substantially limits, or is perceived to substantially
limit, a major life activity, except for an impairment that is both
transitory and minor. A transitory impairment is an impairment with an
actual or expected duration of six months or less.
(B) An individual is ``regarded as having such an impairment'' any
time a covered entity takes a prohibited action against the individual
because of an actual or perceived impairment, even if the entity
asserts, or may or does ultimately establish, a defense to such action.
(C) Establishing that an individual is ``regarded as having such an
impairment'' does not, by itself, establish liability. Liability is
established under section 504 only when an individual proves that a
covered entity discriminated on the basis of disability within the
meaning of section 504.
(vi) Exclusions. The term ``disability'' does not include:
(A) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(B) Compulsive gambling, kleptomania, or pyromania; or
(C) Psychoactive substance use disorders resulting from current
illegal use of drugs.
* * * * *
(i) Qualified individual with a disability means:
(1) With respect to any aid, benefit, or service, provided under a
program or activity subject to this part, an individual with a
disability who, with or without reasonable accommodations in rules
policies, or procedures, the removal of architectural, communication,
or transportation barriers, or the provision auxiliary aids or
services, meets the essential eligibility requirements for
participation in, or receipt from, that aid, benefit, or service, and
(2) With respect to employment, the definition given that term in
the Equal Employment Opportunity Commission's regulation at 29 CFR part
1630, implementing Title I of the Americans with Disabilities Act of
1990, which regulation is made applicable to this part by Sec. 1251.2.
(j) Disability means a physical or mental impairment which
substantially limits one or more major life activities as defined in
paragraph (h) of this section.
* * * * *
(l) Direct threat means a significant risk to the health or safety
of others that cannot be eliminated by a change to policies, practices
or procedures, or by the provision of auxiliary aids or services as
provided in Sec. 1251.110 of this part.
(m) Auxiliary aids and services means services or devices that
enable persons with sensory, manual, or speech disabilities to have an
equal opportunity to participate in, and enjoy the benefits of,
programs or activities conducted by the recipient. Auxiliary aids and
services include:
(1) Qualified interpreters onsite or through video remote
interpreting (VRI) services; notetakers; real-time computer-aided
transcription services; written materials; exchange of written notes;
telephone handset amplifiers; assistive listening devices; assistive
listening systems; telephones compatible with hearing aids; closed
caption decoders; open and closed captioning, including realtime
captioning; voice, text, and video-based telecommunications products
and systems, including text telephones (TTYs), videophones, and
captioned telephones, or equally effective telecommunications devices;
videotext displays; accessible electronic and information technology;
or other effective methods of making aurally delivered information
available to
[[Page 67393]]
individuals who are deaf or hard of hearing;
(2) Qualified readers; taped texts; audio recordings; Brailled
materials and displays; screen reader software; magnification software;
optical readers; secondary auditory programs (SAP); large print
materials; accessible electronic and information technology; or other
effective methods of making visually delivered materials available to
individuals who are blind or have low vision;
(3) Acquisition or modification of equipment or devices; and
(4) Other similar services and actions.
Sec. 1251.104 [Amended]
0
6. In Sec. 1251.104, in paragraphs (a) and (c)(3), remove the word
``Assistant'' and add in its place the word ``Associate''.
Sec. 1251.105 [Amended]
0
7. In paragraphs (a)(1) through (3) and (c)(2) introductory text,
remove the word ``Assistant'' wherever it appears and add in its place
the word ``Associate''.
0
8. Amend Sec. 1251.107 by revising paragraph (a) to read as follows:
Sec. 1251.107 Notice.
(a) A recipient that employs 15 or more persons shall take
appropriate initial and continuing steps to notify participants,
beneficiaries, applicants, and employees, including those with vision
or hearing disabilities, and unions or professional organizations
holding collective bargaining or professional agreements with the
recipient that it does not discriminate on the basis of disability in
violation of section 504 and this part. The notification shall state,
where appropriate, that the recipient does not discriminate in
admission or access to, or treatment or employment in, its programs or
activities. The notification shall also include an identification of
the responsible employee designated pursuant to Sec. 1251.106(a). A
recipient shall make the initial notification required by this
paragraph within 90 days of the effective date of this part. Methods of
initial and continuing notification may include the posting of notices,
transmission via electronic mail or text message, publication on the
recipient's internet Web site, or in newspapers and magazines,
placement of notices in recipient's publication, and distribution of
memoranda or other written communications.
* * * * *
Sec. 1251.108 [Amended]
0
9. Amend Sec. 1251.108 by removing the word ``Assistant'' wherever it
appears and adding in its place the word ``Associate''.
0
10. Add Sec. 1251.110 to subpart 1251.1 to read as follows:
Sec. 1251.110 Direct threat.
(a) This part does not require a recipient to permit an individual
to participate in or benefit from the services, programs, or activities
of that recipient when that individual poses a direct threat to the
health or safety of others.
(b) In determining whether an individual poses a direct threat to
the health or safety of others, a recipient must make an individualized
assessment, based on reasonable judgment that relies on current medical
knowledge or on the best available objective evidence, to ascertain:
the nature, duration, and severity of the risk; the probability that
the potential injury will actually occur; and whether reasonable
accommodations in policies, practices, or procedures or the provision
of auxiliary aids or services will mitigate the risk.
0
11. Add Sec. 1251.111 to subpart 1251.1 to read as follows:
Sec. 1251.111 Reasonable accommodation.
A recipient shall make reasonable accommodations in policies,
practices, or procedures when such accommodations are necessary to
avoid discrimination on the basis of disability, unless the recipient
can demonstrate that making the accommodations would fundamentally
alter the nature of the service, program, or activity or result in an
undue financial and administrative burden. For the purposes of this
section, the term reasonable accommodation shall be interpreted in a
manner consistent with the term ``reasonable modifications'' as set
forth in the Americans with Disabilities Act Title II regulation at 28
CFR 35.130(b)(7), and not as it is defined or interpreted for the
purposes of employment discrimination under Title I of the ADA (42
U.S.C. 12111-12112) and its implementing regulation at 29 CFR Part
1630.
0
12. Add Sec. 1251.112 to subpart 1251.1 to read as follows:
Sec. 1231.112 Communications.
(a) A recipient shall take appropriate steps to ensure effective
communication with applicants, participants, and members of the public.
(1) The recipient shall furnish appropriate auxiliary aids or
services where necessary to afford an individual with a disability,
including applicants, participants and members of the public, an equal
opportunity to participate in, and enjoy the benefits of, a program or
activity of the recipient.
(i) In determining what type of auxiliary aid or service is
necessary, the recipient shall give primary consideration to the
requests of the individual with a disability.
(ii) The recipient need not provide individually prescribed
devices, readers for personal use or study, or other devices of a
personal nature.
(2) Where the recipient communicates with applicants and
beneficiaries by telephone, telecommunication devices for deaf persons
(TTY's) or equally effective telecommunication systems shall be used to
communicate with persons with hearing disabilities.
(b) The recipient shall ensure that interested persons, including
persons with vision or hearing disabilities, can obtain information as
to the existence and location of accessible services, activities, and
facilities.
(c) This section does not require the recipient to take any action
that it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and
administrative burdens. In those circumstances where the recipient
believes that the proposed action would fundamentally alter the program
or activity or would result in undue financial and administrative
burdens, the recipient has the burden of proving that compliance with
Sec. 1251.112 would result in such alteration or burdens. The decision
that compliance would result in such alteration or burdens must be made
by the recipient agency head or his or her designee after considering
all of the recipient's 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 recipient shall take any other action
that would not result in such an alteration or such burdens but would
nevertheless ensure that, to the maximum extent possible, individuals
with disabilities receive the benefits and services of the program or
activity.
0
13. Revise Sec. 1251.200 to read as follows:
Sec. 1251.200 Discrimination prohibited.
(a) General. No qualified individual with a disability shall, on
the basis of disability, be subjected to discrimination in employment
under any program or activity to which this part applies.
(b) Employment discrimination standards. The standards used to
determine whether paragraph (a) of this section has been violated shall
be the
[[Page 67394]]
standards applied under Title I of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12111 et seq.) and, as such sections relate to
employment, the provisions of sections 501 through 504 and 510 of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and
12210), as amended by the ADA Amendments Act of 2008 (Pub. L. 110-325),
as such standards are implemented in the Equal Employment Opportunity
Commission's regulation at 29 CFR part 1630, as amended. The procedures
to be used to determine whether paragraph (a) of this section has been
violated shall be the procedures set forth in Sec. 1251.400 of this
part.
Sec. 1251.202 [Amended]
0
14. Amend Sec. 1251.202 by removing the word ``Assistant'' in
paragraph (a)(2) and adding in its place the word ``Associate''.
0
15. Amend Sec. 1251.302 as follows:
0
a. Revise paragraphs (a) and (c)(1); and
0
b. Redesignate paragraphs (c)(2) and (3) as paragraphs (c)(5) and (6)
and add new paragraphs (c)(2) through (4).
0
The revisions and additions read as follows:
Sec. 1251.302 New construction and alterations.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a recipient shall be
designed and constructed in such manner that the facility or part of
the facility is readily accessible to and usable by individuals with
disabilities.
* * * * *
(c) Accessibility standards and compliance dates--(1) New
Construction and alterations by recipients that are private entities.
(i) New construction and alterations in which the last application for
a building permit or permit extension for such construction or
alterations is certified to be complete by a state, county, or local
government (or, in those jurisdictions where the government does not
certify completion of applications, if the date when the last
application for a building permit or permit extension is received by
the state, county, or local government) is prior to [DATE ONE YEAR
AFTER PUBLICATION OF THE FINAL RULE IN THE Federal Register], or if no
permit is required, if the start of physical construction or
alterations occurs prior to [DATE ONE YEAR FROM THE PUBLICATION OF THE
FINAL RULE IN THE Federal Register], then such new construction and
alterations must comply with either the Uniform Federal Accessibility
Standards (UFAS) or the ADA Standards for Accessible Design, (2010
Standards) as defined in 28 CFR 35.104. Departures from particular
requirements of either standard by the use of other methods shall be
permitted when it is clearly evident that equivalent access to the
facility or part of the facility is thereby provided.
(ii) New construction and alterations in which the last application
for a building permit or permit extension for such construction or
alterations is certified to be complete by a state, county, or local
government (or, in those jurisdictions where the government does not
certify completion of applications, if the date when the last
application for a building permit or permit extension is received by
the state, county, or local government) is on or after [DATE ONE YEAR
AFTER PUBLICATION OF THE FINAL RULE IN THE Federal Register], or if no
permit is required, if the start of physical construction or
alterations occurs on or after [DATE ONE YEAR FROM THE PUBLICATION OF
THE FINAL RULE IN THE Federal Register], then such new construction and
alterations shall comply with the 2010 Standards.
(2) New construction and alterations by recipients that are public
entities. (i) If physical construction or alterations commence prior to
[DATE ONE YEAR AFTER PUBLICATION OF THE FINAL RULE IN THE Federal
Register], then such new construction and alterations must comply with
either UFAS or the 2010 Standards as defined in 28 CFR 35.104.
Departures from particular requirements of either standard by the use
of other methods shall be permitted when it is clearly evident that
equivalent access to the facility or part of the facility is thereby
provided.
(ii) If physical construction or alterations commence on or after
[DATE ONE YEAR AFTER PUBLICATION OF THE FINAL RULE IN THE Federal
Register], then such new construction and alterations shall comply with
the 2010 Standards.
(3) For the purposes of this section, ceremonial groundbreaking or
razing of structures prior to site preparation will not be considered
to commence or start physical construction or alterations.
(4) All newly constructed or altered buildings or facilities
subject to this section shall comply with the requirements for a
``public building or facility'' as defined in section 106.5 of the 2010
Standards.
Table of Applicable Standards for Complying With 14 CFR 1251.302(c)
------------------------------------------------------------------------
Applicable standards for
Compliance dates for new construction complying with 14 CFR
and alterations 1251.302(c)
------------------------------------------------------------------------
Prior to [DATE ONE YEAR AFTER UFAS or the requirements for a
PUBLICATION OF THE FINAL RULE IN THE ``public building or
Federal Register]. facility'' as defined in
section 106.5 of the 2010
Standards
On or after [DATE ONE YEAR AFTER All buildings or facilities
PUBLICATION OF THE FINAL RULE IN THE shall comply with the
Federal Register]. requirements for a ``public
building or facility'' as
defined in section 106.5 of
the 2010 Standards.
------------------------------------------------------------------------
* * * * *
0
16. Section 1251.400 is revised to read as follows:
Sec. 1251.400 Procedures for compliance.
(a) The investigative, compliance, and enforcement procedural
provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C.
2000d) are hereby adopted and apply to these section 504 regulations.
These procedures are found at Sec. Sec. 1250.105 through 1250.110 of
this chapter.
(b) The agency shall ensure that complaints alleging violations of
section 504 with respect to employment are processed according to the
procedures established by the EEOC in 29 CFR part 1640 and the United
States DOJ at 28 CFR part 37.
Subpart 1251.5--Enforcement of Nondiscrimination on the Basis of
Disability in Programs or Activities Conducted by the National
Aeronautics and Space Administration
0
17. Section 1251.503 is revised to read as follows:
Sec. 1251.503 Definitions.
As used in this part, the term:
Assistant Attorney General means the Assistant Attorney General,
Civil Rights
[[Page 67395]]
Division, United States Department of Justice.
Auxiliary aids and services means services or devices that enable
persons with sensory, manual, or speech disabilities to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. Auxiliary aids and services
include:
(1) Qualified interpreters onsite or through VRI services;
notetakers; real-time computer-aided transcription services; written
materials; exchange of written notes; telephone handset amplifiers;
assistive listening devices; assistive listening systems; telephones
compatible with hearing aids; closed caption decoders; open and closed
captioning, including realtime captioning; voice, text, and video-based
telecommunications products and systems, including text telephones
(TTYs), videophones, and captioned telephones, or equally effective
telecommunications devices; videotext displays; accessible electronic
and information technology; or other effective methods of making
aurally delivered information available to individuals who are deaf or
hard of hearing;
(2) Qualified readers; taped texts; audio recordings; Brailled
materials and displays; screen reader software; magnification software;
optical readers; secondary auditory programs (SAP); large print
materials; accessible electronic and information technology; or other
effective methods of making visually delivered materials available to
individuals who are blind or have low vision;
(3) Acquisition or modification of equipment or devices; and
(4) Other similar services and actions.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties
shall describe or identify (by name, if possible) the alleged victims
of discrimination.
Direct threat means a significant risk to the health or safety of
others that cannot be eliminated by a change to policies, practices or
procedures, or by the provision of auxiliary aids or services as
provided in Sec. 1251.110 of this part.
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.
Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
state or local government body.
Individual with a disability means any person who meets the
definition of ``individual with a disability'' under Sec. 1251.102(h)
of this part.
Qualified individual with a disability means any person who meets
the definition of ``qualified individual with a disability'' under
Sec. 1251.102(k) of this part.
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);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and
the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat.
1810).
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
0
18. Revise Sec. 1251.540 to read as follows:
Sec. 1251.540 Employment.
(a) General. No qualified individual with a disability shall, on
the basis of disability, be subjected to discrimination in employment
under any program or activity to which this part applies.
(b) Employment discrimination standards. The standards used to
determine whether paragraph (a) of this section has been violated shall
be the standards applied under Title I of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12,111 et seq.) and, as such
sections relate to employment, the provisions of sections 501 through
504 and 510 of the Americans with Disabilities Act of 1990 (42 U.S.C.
12201-12204 and 12210), as amended by the ADA Amendments Act of 2008
(Pub. L. 110-325), as such standards are implemented in the Equal
Employment Opportunity Commission's regulation at 29 CFR part 1630, as
amended.
0
19. Revise Sec. 1251.551 to read as follows:
Sec. 1251.551 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
individuals with handicaps. The definitions, requirements, and
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as
established in 41 CFR part 102-76, subpart C, apply to buildings
covered by this section.
0
20. In Sec. 1251.570, revise paragraphs (b) and (c) to read as
follows:
Sec. 1251.570 Compliance procedures.
* * * * *
(b) 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 1614.
(c) The Associate Administrator for Diversity and Equal Opportunity
shall be responsible for coordinating implementation of this section.
Complaints may be sent to the Office of Diversity and Equal
Opportunity, NASA Headquarters, 300 E Street SW., Washington, DC 20546.
* * * * *
0
21. Add Sec. 1251.580 to subpart 1251.5 to read as follows:
Sec. 1251.580 Direct threat.
(a) This part does not require the Agency to permit an individual
to participate in or benefit from the services, programs, or activities
of that recipient when that individual poses a direct threat to the
health or safety of others.
(b) In determining whether an individual poses a direct threat to
the health or safety of others, a recipient must make an individualized
assessment, based on reasonable judgment that relies on current medical
knowledge or on the best available objective evidence, to ascertain:
the nature, duration, and severity of the risk; the probability that
the potential injury will actually occur; and whether reasonable
accommodations in policies, practices, or procedures or the provision
of auxiliary aids or services will mitigate the risk.
0
22. Add Sec. 1251.581 to subpart 1251.5 to read as follows:
Sec. 1251.581 Reasonable accommodation.
The agency shall make reasonable accommodations in policies,
practices, or procedures when such accommodations are necessary to
avoid discrimination on the basis of disability,
[[Page 67396]]
unless the recipient can demonstrate that making the accommodations
would fundamentally alter the nature of the service, program, or
activity or result in an undue financial and administrative burden. For
the purposes of this section, the term ``reasonable accommodation''
shall be interpreted in a manner consistent with the term ``reasonable
modifications'' as set forth in the Americans with Disabilities Act
Title II regulation at 28 CFR 35.130(b)(7), and not as it is defined or
interpreted for the purposes of employment discrimination under Title I
of the ADA (42 U.S.C. 12111-12112) and its implementing regulations at
29 CFR part 1630.
Cheryl E. Parker,
NASA Federal Register Liaison Officer.
[FR Doc. 2014-26543 Filed 11-12-14; 8:45 am]
BILLING CODE 7510-13-P