Prohibition Against Discrimination on the Basis of Disability, 27654-27659 [E6-7280]
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Federal Register / Vol. 71, No. 92 / Friday, May 12, 2006 / Proposed Rules
Executive Order 12866 and has not been
reviewed by the Office of Management
and Budget. As required by the
Regulatory Flexibility Act, I certify that
this rule will not have a significant
impact on a substantial number of small
entities because this rule applies to
agencies and individual researchers.
This regulation does not have any
federalism implications.
List of Subjects in 36 CFR Part 1253
Archives and records.
For the reasons set forth in the
preamble, NARA proposes to amend
part 1253 of title 36, Code of Federal
Regulations, as follows:
PART 1253—LOCATIONS OF
RECORDS AND HOURS OF USE
1. The authority citation for part 1253
continues to read as follows:
Authority: 44 U.S.C. 2104(a).
2. Amend § 1253.6 by revising
paragraphs (d) and (l) to read as follows:
§ 1253.6
Records centers.
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(d) NARA—Southeast Region
(Atlanta) is located at 4712 Southpark
Blvd., Ellenwood, GA 30294. The hours
are 7:30 a.m. to 3 p.m., Monday through
Friday. The telephone number is 404–
736–2820.
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(l) NARA—Pacific Region (Riverside)
is located at 23123 Cajalco Road, Perris,
CA 92570–7298. The hours are 8:45 a.m.
to 3 p.m., Monday through Friday for
scheduled appointments. The telephone
number is 951–956–2000.
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Dated: May 8, 2006.
Allen Weinstein,
Archivist of the United States.
[FR Doc. E6–7263 Filed 5–11–06; 8:45 am]
BILLING CODE 7515–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 70
[EPA–R07–OAR–2006–0380; FRL–8169–2]
Approval and Promulgation of
Implementation Plans and Operating
Permits Program; State of Missouri
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
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AGENCY:
SUMMARY: EPA proposes to approve a
revision to the Missouri State
Implementation Plan (SIP) and
Operating Permits Program. EPA
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proposes to approve a revision to the
Missouri rule entitled ‘‘Submission of
Emission Data, Emission Fees, and
Process Information.’’ This revision will
ensure consistency between the state
and the Federally-approved rules.
DATES: Comments on this proposed
action must be received in writing by
June 12, 2006.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R07–
OAR–2006–0380 by one of the following
methods:
1. https://www.regulations.gov: Follow
the online instructions for submitting
comments.
2. E-mail: algoe-eakin.amy@epa.gov.
3. Mail: Amy Algoe-Eakin,
Environmental Protection Agency, Air
Planning and Development Branch, 901
North 5th Street, Kansas City, Kansas
66101.
4. Hand Delivery or Courier: Deliver
your comments to: Amy Algoe-Eakin,
Environmental Protection Agency, Air
Planning and Development Branch, 901
North 5th Street, Kansas City, Kansas
66101. Such deliveries are only
accepted during the Regional Office’s
normal hours of operation. The Regional
Office’s official hours of business are
Monday through Friday, 8 to 4:30,
excluding legal holidays.
Please see the direct final rule which
is located in the Rules section of this
Federal Register for detailed
instructions on how to submit
comments.
FOR FURTHER INFORMATION CONTACT:
Amy Algoe-Eakin at (913) 551–7942, or
by e-mail at algoe-eakin.amy@epa.gov.
SUPPLEMENTARY INFORMATION: In the
final rules section of the Federal
Register, EPA is approving the state’s
SIP revision as a direct final rule
without prior proposal because the
Agency views this as a noncontroversial
revision amendment and anticipates no
relevant adverse comments to this
action. A detailed rationale for the
approval is set forth in the direct final
rule. If no relevant adverse comments
are received in response to this action,
no further activity is contemplated in
relation to this action. If EPA receives
relevant adverse comments, the direct
final rule will be withdrawn and all
public comments received will be
addressed in a subsequent final rule
based on this proposed action. EPA will
not institute a second comment period
on this action. Any parties interested in
commenting on this action should do so
at this time. Please note that if EPA
receives adverse comment on part of
this rule and if that part can be severed
from the remainder of the rule, EPA may
adopt as final those parts of the rule that
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are not the subject of an adverse
comment. For additional information,
see the direct final rule which is located
in the rules section of this Federal
Register.
Dated: May 1, 2006.
James B. Gulliford,
Regional Administrator, Region 7.
[FR Doc. 06–4433 Filed 5–11–06; 8:45 am]
BILLING CODE 6560–50–P
LEGAL SERVICES CORPORATION
45 CFR Part 1624
Prohibition Against Discrimination on
the Basis of Disability
Legal Services Corporation.
Notice of Proposed Rulemaking.
AGENCY:
ACTION:
SUMMARY: This Notice of Proposed
Rulemaking (NPRM) proposes to amend
the Legal Services Corporation’s
regulation on prohibitions against
discrimination on the basis of disability.
These proposed changes are intended to
improve the utility of the regulation for
LSC, its grantees and other interested
persons, by updating the terminology
used throughout the regulation, by
adding a reference to compliance with
the Americans with Disabilities Act and
by adding language to the enforcement
provision setting forth LSC policy
regarding investigation of complaints of
violation of this regulation.
DATES: Comments on this NPRM are due
on June 26, 2006.
ADDRESSES: Written comments may be
submitted by mail, fax or e-mail to
Mattie Cohan Condray, Senior Assistant
General Counsel, Office of Legal Affairs,
Legal Services Corporation, 3333 K
Street, NW., Washington, DC 20007;
202–295–1624 (ph); 202–337–6519 (fax);
mcondray@lsc.gov.
FOR FURTHER INFORMATION CONTACT:
Mattie Cohan Condray, Senior Assistant
General Counsel, 202–295–1624 (ph);
mcondray@lsc.gov.
SUPPLEMENTARY INFORMATION:
Background
Section 504 of the Rehabilitation Act
of 1973 (29 U.S.C. 706), as amended,
prohibits discrimination on the basis of
handicap by recipients of Federal
assistance. As recipients of federal
assistance, Legal Services Corporation
(LSC) grant recipients are subject to the
non-discrimination requirements of
Section 504. At the same time, while the
Corporation is not obligated to enforce
Section 504 of the Rehabilitation Act
(since it is not an agency, department or
instrumentality of the Federal
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government), it does have the authority
to ensure that LSC grant recipients
comply with its provisions. LSC chose
to exercise this authority and adopted
the Part 1624 regulation implementing
the non-discrimination requirements in
Section 504 in 1979. The regulation has
not been amended since that time.
On October 29, 2005, the LSC Board
of Directors directed that LSC initiate a
rulemaking to consider revisions to
LSC’s regulation at 45 CFR Part 1624.
The rulemaking proceeding is intended
to provide the opportunity for an
unlimited and thorough review of the
regulation with the intent of updating
and improving the rule as appropriate.
At the Board’s further direction, prior to
the development of this Notice of
Proposed Rulemaking (‘‘NPRM’’), LSC
convened a Rulemaking Workshop 1 to
consider revisions to this Part.
LSC convened a Rulemaking
Workshop on December 13, 2005 to
discuss Part 1624. The following
persons participated in the Workshop:
John ‘‘Chip’’ Gray, South Brooklyn Legal
Services; John Herrion, United Spinal
Association; Linda Perle, Center for Law
and Social Policy; Don Saunders,
National Legal Aid and Defender
Association; Helaine Barnett, LSC
President (welcoming remarks only);
Karen Sarjeant, LSC Vice President for
Programs and Compliance; Charles
Jeffress, LSC Chief Administrative
Officer; Mattie Condray, LSC Office of
Legal Affairs; Curtis Goffe, LSC Office of
Compliance and Enforcement; Tillie
Lacayo, LSC Office of Program
Performance; Mark Freedman, LSC
Office of Legal Affairs; and Treefa Aziz,
LSC Office of Government Relations and
Public Affairs.
The discussion was wide-ranging and
open. The highlights of the discussion
are summarized as follows. There was a
general assessment that grantees appear
to be in compliance with the regulation
and that LSC does not receive many
complaints of non-compliance. It was
noted that most of the complaints that
do come to LSC are from grantee staff
and are related to employment
discrimination, rather than accessibility
of services for applicants or clients with
disabilities. LSC’s staff practice is to
refer such complainants to the
1 Under LSC’s Rulemaking Protocol, a
Rulemaking Workshop is a meeting at which the
participants (which may include LSC Board
members, staff, grantees and other interested
parties) ‘‘hold open discussions designed to elicit
information about problems or concerns with the
regulation (or certain aspects thereof) and provide
an opportunity for sharing ideas regarding how to
address those issues. * * * [A] Workshop is not
intended to develop detailed alternatives or to
obtain consensus on regulatory proposals.’’ 67 FR
69762, 69763 (November 19, 2002).
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appropriate Federal, state or local
agency. At the same time, it was noted
that the language of the regulation could
be updated in places and that there are
new assistive technologies which could
be referenced in the regulation.
The participants discussed the fact
that LSC’s enforcement expertise and
resources are limited and that claimants,
with the passage of the Americans with
Disabilities Act (‘‘ADA’’), have recourse
to other agencies and private actions for
the pursuit of redress for discrimination
on the basis of disability. The notion
that the regulation could be amended to
reflect these facts was raised. In
addition, the participants also discussed
other avenues of raising awareness of
accessibility issues, such as the issuance
of guidance from LSC in the form of a
Program Letter, focusing on accessibility
in program visits and in competition,
better sharing of best practices and
emphasis on opportunities through
LSC’s Technology Initiative Grant
Program.
At its meeting on January 27, 2006,
LSC management made a presentation
to the Operations and Regulations
Committee of the LSC Board of Directors
on the Rulemaking Workshop. The
Committee then voted to recommend
that the Board of Directors directed LSC
to continue the rulemaking and develop
an NPRM, proposing such changes as
deemed appropriate. On January 28,
2006, the Board of Directors voted to
accept the recommendation of the
Operations and Regulations Committee.
A Draft NPRM was then presented to
the Operations and Regulations
Committee at its meeting on April 28,
2006. The Committee voted to
recommend that the Board of Directors
approve this NPRM for publication. The
following day the Board of Directors
voted to accept the Committee’s
recommendation and directed LSC to
issue this NPRM for public comment.
Summary of Proposed Changes
LSC is proposing only relatively
minor changes to the regulation, but
LSC believes that these changes will
improve the utility of the regulation for
LSC, its grantees and other interested
persons. First, LSC is proposing to
update the nomenclature used
throughout the regulation to refer to
‘‘person with a disability’’ or ‘‘persons
with disabilities’’ instead of
‘‘handicapped person(s).’’ This change
is not intended to create any substantive
change in meaning, but rather is
intended to reflect a more current
terminology. Second, LSC is proposing
to add a reference to compliance with
the Americans with Disabilities Act to
the regulation. This change is discussed
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in greater detail in the section-bysection analysis section under the
discussion of proposed section 1624.1.
Third, LSC is proposing to add language
to the enforcement provision setting
forth LSC policy regarding investigation
of complaints of violation of this
regulation. This change is discussed in
greater detail in the section-by-section
analysis section under the discussion of
proposed section 1624.8. LSC is also
proposing to make a number of
technical and grammatical corrections
to the regulation.
In addition, LSC is proposing to
eliminate the current section 1624.7 of
the regulation on self-evaluation. This
section required legal services programs
to evaluate by January 1, 1980, their
facilities, practices and policies to
determine the extent to which they
complied with the requirements of this
Part. This section does not contain a
continuing requirement for selfevaluation and, as such, is now
obsolete. LSC is thus proposing to
eliminate it. Under section 1624.5,
grantees are required to certify facility
accessibility prior to entering into leases
or purchases of office space (or, if the
facility will not be accessible, provide a
detailed statement as to why the facility
is not accessible and describe steps that
the grantee will take to make sure its
services are accessible). This
requirement ensures that facilities are,
to the maximum extent feasible,
accessible to persons with disabilities
and ensures that grantees are taking
accessibility issues into consideration in
providing services.
Section-by-Section Analysis
Section 1624.1—Purpose
LSC is proposing to change the terms
‘‘handicapped persons’’ as they appear
in this section to ‘‘persons with
disabilities.’’ In addition, LSC is
proposing to add language to make
reference to the ADA. The new language
would note that requirements of this
Part apply in addition to any
responsibilities legal services programs
may have under applicable
requirements of the Americans with
Disabilities Act and applicable
implementing regulations of the
Department of Justice and the Equal
Employment Opportunity Commission.
The proposed language is not intended
to impose any new obligations on
grantees with respect to LSC-related
regulatory compliance matters, nor
assume LSC authority for enforcing the
ADA that LSC does not possess.
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Section 1624.2—Application
LSC is not proposing any changes to
this section.
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Section 1624.3—Definitions
LSC is proposing to change the term
‘‘handicapped person’’ to ‘‘person with
a disability’’ in section 1624.3(c)(1).
Similarly, LSC proposes to change the
term ‘‘qualified handicapped person’’ in
section 1624.3(d) to ‘‘qualified person
with a disability.’’ In neither case is the
proposed change intended to create any
substantive change to the regulation, but
rather to reflect updated and preferred
nomenclature.
LSC is also proposing to add a
definition of the term ‘‘auxiliary aids
and/or other assistive technology.’’
Under section 1624.4, grantees with
more than fifteen employees are
required to provide appropriate
‘‘auxiliary aids’’ when necessary to
clients and applicants to make services
accessible. Although the current
regulation uses the term ‘‘auxiliary
aids,’’ it does not contain a formal
definition of the term in the definition
section. Rather, section 1624.4 provides
that for the purposes of that section,
‘‘auxiliary aids include, but are not
limited to, brailled and taped material,
interpreters, telecommunications
equipment for the deaf, and other aids
for persons with impaired vision and
hearing.’’ Although this informal
definition of ‘‘auxiliary aids’’ appears to
be limited to aids for persons with
impaired vision or hearing, the
provision of the regulation which
requires their use calls for auxiliary aids
for persons ‘‘with impaired sensory,
manual or speaking skills,’’ which is
broader than simply vision or hearing
impairments. LSC believes that this
discrepancy should be rectified. In
addition, although the term ‘‘auxiliary
aids’’ is not used in the section on
employment (1624.6), a similar concept
appears there. Under section 1624.6(e),
grantees are required to make reasonable
accommodations for otherwise qualified
employees and job applicants with
disabilities. The regulation specifies
that, among other things, ‘‘reasonable
accommodations’’ include (but are not
limited to) ‘‘the modification of
equipment or devices, the provision of
readers or interpreters and other similar
actions.’’
Rather than continue to have these
similar concepts set forth in different
parts of the regulation with different
terminology, LSC is proposing to use the
single term ‘‘auxiliary aids and/or other
assistive technology’’ in both sections
and to add a definition of that term to
the definitions section. Since the
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original adoption of the regulation in
1979 there have been significant
advances in technology which are
available to persons with disabilities to
help them access and benefit from legal
services programs’ services. The
proposed definition is based on a
definition of ‘‘assistive technologies’’
found in the Individuals with
Disabilities Education Act, 20 U.S.C.
1400, et seq., and is intended to broadly
refer to the range of aids or technologies
which grantees can make available to
applicants, clients and employees with
disabilities, as appropriate and
necessary, to comply with the
requirements of this Part. LSC seeks
comment on whether additional specific
assistive technologies should be
referenced in the list of non-exhaustive
examples in the definition, and if so,
which ones.
Section 1624.4—Discrimination
Prohibited
LSC is proposing two notable
amendments to this section. First, in
each instance in which the term
‘‘handicapped person’’ or ‘‘handicapped
persons’’ appears, LSC proposes to
replace it with ‘‘person with a
disability’’ or ‘‘persons with
disabilities’’ as grammatically
appropriate. As noted above, LSC
intends no substantive change, but
rather to reflect updated and preferred
nomenclature. LSC is also proposing to
use the term ‘‘auxiliary aids and/or
other assistive technologies’’ instead of
the term ‘‘auxiliary aids’’ in section
1624.4(d)(1) and (2) and to delete the
text appearing at 1624.4(d)(3). As
discussed above, LSC believes that users
of the regulation will be better served by
having a formal definition of the term in
the definitions section of the regulation
than an informal definition elsewhere.
In addition, LSC believes that
expanding the term to include ‘‘other
assistive technologies,’’ combined with
the proposed definition, will better
reflect the range of systems and devices
existing in the market that grantees may
choose from to help make their services
accessible to persons with disabilities.
Section 1624.5—Accessibility of Legal
Services
LSC is proposing two notable
amendments to this section. First, in
each instance in which the term
‘‘handicapped person’’ or ‘‘handicapped
persons’’ appears, LSC proposes to
replace it with ‘‘person with a
disability’’ or ‘‘persons with
disabilities’’ as grammatically
appropriate. As noted above, LSC
intends no substantive change, but
rather to reflect updated and preferred
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nomenclature. Second, LSC is proposing
to replace the reference to ‘‘the
appropriate Regional Office’’ in section
1624.5(c) with ‘‘LSC.’’ At the time Part
1624 was originally adopted LSC had
Regional Offices, but it no longer does.
All LSC business is conducted out of its
Washington, D.C. offices. As such, the
statement required by section 1624.5(c)
cannot be submitted to a ‘‘Regional
Office’’ any longer and such statements
are simply submitted to LSC. The
regulation should reflect this fact.
Section 1624.6—Employment
LSC is proposing two notable
amendments to this section. First, in
each instance in which the term
‘‘handicapped person’’ or ‘‘handicapped
persons’’ appears, LSC proposes to
replace it with ‘‘person with a
disability’’ or ‘‘persons with
disabilities’’ as grammatically
appropriate. As noted above, LSC
intends no substantive change, but
merely the use of updated and preferred
nomenclature.
LSC is also proposing to use the term
‘‘auxiliary aids and/or other assistive
technologies’’ instead of the words
‘‘readers or interpreters’’ in section
1626(e)(1). As discussed above, LSC
believes that users of the regulation will
be better served by using a standardized
and formally defined term. LSC believes
that using the term ‘‘auxiliary aids and/
or other assistive technologies’’ in this
section, combined with the proposed
definition of that term, will better reflect
the range of systems and devices
existing in the market that grantees may
choose from to make reasonable
accommodations in employment for
otherwise qualified applicants and
employees with disabilities.
Section 1624.7—Enforcement
The current regulation specifies only
that LSC’s enforcement procedures at 45
CFR part 1618 shall apply to alleged
violations of this Part. Under part 1618,
LSC is obligated to investigate
complaints of violations of the LSC Act,
appropriations acts, LSC regulations or
grant assurances and to work with
grantees to resolve matters informally
when possible. Ultimately, if no
informal resolution is agreed upon,
LSC’s enforcement powers involve
reducing or eliminating funding
generally. LSC does not have authority
to directly order ‘‘injunctive relief’’
however, as do other Federal, state and
local agencies charged with ADA and
other disability-based discrimination
law enforcement. Moreover, LSC’s
Office of Compliance and Enforcement,
although taking those complaints of
disability-based discrimination it
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receives seriously, has limited resources
available and does not generally have
significant expertise in investigating
these types of claims.
In light of the above, LSC’s policy
when such complaints have been filed
with the Office of Compliance and
Enforcement has been to recommend
that complainants pursue claims with
appropriate Federal, state or local
agencies which may be in a better
position to investigate their claims and
order the relief being sought. In cases
where a claim is filed with another
agency, LSC generally defers to that
investigation during its pendency and
relies upon the findings of the other
agency in resolving the complaint filed
with LSC. LSC has found this policy to
be efficient and effective. Accordingly,
LSC is proposing to explicitly
incorporate this policy into the
regulation. LSC believes this action will
clarify expectations for LSC
enforcement staff, grantees, and
potential claimants alike. Of course,
LSC retains the discretion and authority
to conduct its own investigations into
any claim of disability-based
discrimination grounded in this Part or
the grant assurances and make its own
findings upon the conclusion of such
investigation, irrespective of whether a
complaint based on the same
circumstances is pending at another
agency.
List of Subjects in 45 CFR Part 1624
Civil rights, Grant programs—law,
Individuals with disabilities, Legal
services.
For reasons set forth above, and under
the authority of 42 U.S.C. 2996g(e), LSC
proposes to revise 45 CFR part 1624 as
follows:
PART 1624–PROHIBITION AGAINST
DISCRIMINATION ON THE BASIS OF
DISABILITY
Sec.
1624.1
1624.2
1624.3
1624.4
1624.5
1624.6
1624.7
Purpose.
Application.
Definitions.
Discrimination prohibited.
Accessibility of legal services.
Employment.
Enforcement.
Authority: 49 U.S.C. 794; 42 U.S.C.
2996f(a) (1) and (3).
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§ 1624.1
Purpose.
The purpose of this part is to assist
and provide guidance to legal services
programs supported in whole or in part
by Legal Services Corporation funds in
removing any impediments that may
exist to the provision of legal assistance
to persons with disabilities eligible for
such assistance in accordance with
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section 504 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. section 794
and with sections 1007(a)(1) and (3) of
the Legal Services Corporation Act, as
amended, 42 U.S.C. sections 2996f(a)(1)
and (3), with respect to the provision of
services to and employment of persons
with disabilities. The requirements of
this Part apply in addition to any
responsibilities legal services programs
may have under applicable
requirements of the Americans with
Disabilities Act and applicable
implementing regulations of the
Department of Justice and the Equal
Employment Opportunity Commission.
§ 1624.2
Application.
This part applies to each legal
services program receiving financial
assistance from the Legal Services
Corporation.
§ 1624.3
Definitions.
As used in this part, the term:
(a) Legal services program means any
recipient, as defined by § 1600.1 of this
chapter, or any other public or private
agency, institution, organization, or
other entity, or any person to which or
to whom financial assistance is
extended by the Legal Services
Corporation directly or through another
agency, institution, organization, entity
or person, including any successor,
assignee, or transferee of a legal services
program, but does not include the
ultimate beneficiary of legal assistance;
(b) Facility means all or any portion
of buildings, structures, equipment,
roads, walks, parking lots, or other real
or personal property or interest in such
property;
(c) (1) Person with a disability means
any person who:
(i) Has a physical or mental
impairment which substantially limits
one or more major life activities,
(ii) Has a record of such an
impairment, or
(iii) Is regarded as having such an
impairment;
(2) As used in paragraph (c)(1) of this
section the phrase:
(i) Physical or mental impairment
means: Any physiological disorder or
condition, cosmetic disfigurement, or
anatomical loss affecting one or more of
the following body systems:
Neurological; musculoskeletal; special
sense organs; digestive; genitourinary;
hemic and lymphatic; skin; and
endocrine; or any mental or
psychological disorder, such as mental
retardation, organic brain syndrome,
emotional or mental illness, and specific
learning disabilities; The phrase
includes, but is not limited to, such
diseases and conditions as orthopedic,
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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;
(ii) Major life activities means
functions such as caring for one’s self,
performing manual tasks, walking,
seeing, hearing, speaking, breathing,
learning, and working;
(iii) Has a record of such impairment
means has a history of, or has been
misclassified as having, a mental or
physical impairment that substantially
limits one or more major life activities;
(iv) Is regarded as having an
impairment means:
(A) Has a physical or mental
impairment that does not substantially
limit major life activities but is treated
by a legal services program as
constituting such a limitation;
(B) Has a physical or mental
impairment that substantially limits
major life activities only as a result of
the attitudes of others toward such
impairments; or
(C) Has none of the impairments
defined in paragraph (c)(2)(i) of this
section but is treated by a legal services
program as having such an impairment;
(d) Qualified person with a disability
means:
(1) With respect to employment, a
person with a disability who, with
reasonable accommodation, can perform
the essential functions of the job in
question;
(2) With respect to other services, a
person with a disability who meets the
eligibility requirements for the receipt of
such services from the legal services
program.
(e) Auxiliary aids and/or other
assistive technologies means any item,
piece of equipment, or product system
whether acquired commercially off the
shelf, modified or customized, that is
used to increase, maintain, or improve
functional capabilities of individuals
with disabilities. Auxiliary aids and/or
assistive technologies include, but are
not limited to, brailled and taped
material, interpreters,
telecommunications equipment for the
deaf, voice recognition software,
computer screen magnifiers, screen
reader software, wireless amplification
systems, and other aids.
§ 1624.4
Discrimination prohibited.
(a) No qualified person with a
disability shall, on the basis of
disability, be excluded from
participation in, be denied the benefits
of, or otherwise be subjected to
discrimination by any legal services
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program, directly or through any
contractual or other arrangement.
(b) A legal services program may not
deny a qualified person with a disability
the opportunity to participate in any of
its programs or activities or to receive
any of its services provided at a facility
on the ground that the program operates
a separate or different program, activity
or facility that is specifically designed to
serve persons with disabilities.
(c) In determining the geographic site
or location of a facility, a legal services
program may not make selections that
have the purpose or effect of excluding
persons with disabilities from, denying
them the benefits of, or otherwise
subjecting them to discrimination under
any program or activity of the legal
services program.
(d) (1) A legal services program that
employs a total of fifteen or more
persons, regardless of whether such
persons are employed at one or more
locations, shall provide, when
necessary, appropriate auxiliary aids
and/or other assistive technologies to
persons with impaired sensory, manual
or speaking skills, in order to afford
such persons an equal opportunity to
benefit from the legal services program’s
services. A legal services program is not
required to maintain such aids at all
times, provided they can be obtained on
reasonable notice.
(2) The Corporation may require legal
services programs with fewer than
fifteen employees to provide auxiliary
aids where the provision of such aids
would not significantly impair the
ability of the legal services program to
provide its services.
(e) A legal services program shall take
reasonable steps to ensure that
communications with its applicants,
employees, and beneficiaries are
available to persons with impaired
vision and hearing.
(f) A legal services program may not
deny persons with disabilities the
opportunity to participate as members
of or in the meetings or activities of any
planning or advisory board or process
established by or conducted by the legal
services program, including but not
limited to meetings and activities
conducted in response to the
requirements of 45 CFR part 1620.
sroberts on PROD1PC70 with PROPOSALS
§ 1624.5
Accessibility of legal services.
(a) No qualified person with a
disability shall, because a legal services
program’s facilities are inaccessible to or
unusable by persons with disabilities,
be denied the benefits of, be excluded
from participation in, or otherwise be
subjected to discrimination by any legal
services program.
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16:30 May 11, 2006
Jkt 208001
(b) A legal services program shall
conduct its programs and activities so
that, when viewed in their entirety, they
are readily accessible to and usable by
persons with disabilities. This
paragraph does not necessarily require a
legal services program to make each of
its existing facilities or every part of an
existing facility accessible to and usable
by persons with disabilities, or require
a legal services program to make
structural changes in existing facilities
when other methods are effective in
achieving compliance. In choosing
among available methods for meeting
the requirements of this paragraph, a
legal services program shall give priority
to those methods that offer legal services
to persons with disabilities in the most
integrated setting appropriate.
(c) A legal services program shall, to
the maximum extent feasible, ensure
that new facilities that it rents or
purchases are accessible to persons with
disabilities. Prior to entering into any
lease or contract for the purchase of a
building, a legal services program shall
submit a statement to LSC certifying
that the facilities covered by the lease or
contract will be accessible to persons
with disabilities, or if the facilities will
not be accessible, a detailed description
of the efforts the program made to
obtain accessible space, the reasons why
the inaccessible facility was
nevertheless selected, and the specific
steps that will be taken by the legal
services program to ensure that its
services are accessible to persons with
disabilities who would otherwise use
that facility. After a statement certifying
facility accessibility has been submitted,
additional statements need not be
resubmitted with respect to the same
facility, unless substantial changes have
been made in the facility that affect its
accessibility.
(d) A legal services program shall
ensure that new facilities designed or
constructed for it are readily accessible
to and usable by persons with
disabilities. Alterations to existing
facilities shall, to the maximum extent
feasible, be designed and constructed to
make the altered facilities readily
accessible to and usable by persons with
disabilities.
§ 1624.6
Employment.
(a) No qualified person with a
disability shall, on the basis of
disability, be subjected to
discrimination in employment by any
legal services program.
(b) A legal services program shall
make all decisions concerning
employment under any program or
activity to which this part applies in a
manner that ensures that discrimination
PO 00000
Frm 00010
Fmt 4702
Sfmt 4702
on the basis of disability does not occur,
and may not limit, segregate, or classify
applicants or employees in any way that
adversely affects their opportunities or
status because of disability.
(c) The prohibition against
discrimination in employment applies
to the following activities:
(1) Recruitment, advertising, and the
processing of applications for
employment;
(2) Hiring, upgrading, promotion,
award of tenure, demotion, transfer,
layoff, termination, right of return from
layoff, and rehiring;
(3) Rates of pay or any other form of
compensation and changes in
compensation;
(4) Job assignments, job
classifications, organizational
structures, position descriptions, lines
of progression, and seniority lists;
(5) Leaves of absence, sick leave, or
any other leave;
(6) Fringe benefits available by virtue
of employment, whether or not
administered by the legal services
program;
(7) Selection and financial support for
training, including apprenticeship,
professional meetings, conferences, and
other related activities, and selection for
leaves of absence to pursue training;
(8) Employer sponsored activities,
including social or recreational
programs; and
(9) Any other term, condition, or
privilege of employment.
(d) A legal services program may not
participate in any contractual or other
relationship with persons, agencies,
organizations or other entities such as,
but not limited to, employment and
referral agencies, labor unions,
organizations providing or
administering fringe benefits to
employees of the legal services program,
and organizations providing training
and apprenticeship programs, if the
practices of such person, agency,
organization, or other entity have the
effect of subjecting qualified applicants
or employees with disabilities to
discrimination prohibited by this
paragraph.
(e) A legal services program shall
make reasonable accommodation to the
known physical or mental limitations of
an otherwise qualified applicant or
employee with a disability unless the
accommodation would impose an
undue hardship on the operation of the
program.
(1) For purposes of this paragraph (e),
reasonable accommodation may
include:
(i) making facilities used by
employees readily accessible to and
usable by persons with disabilities; and
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(ii) job restructuring, part-time or
modified work schedules, acquisition or
modification of equipment or devices,
the provision of auxiliary aids and/or
other assistive technologies, and other
similar actions.
(2) In determining whether an
accommodation would impose an
undue hardship on the operation of a
legal services program, factors to be
considered include, but are not limited
to, the overall size of the legal services
program with respect to number of
employees, number and type of
facilities, and size of budget, and the
nature and costs of the accommodation
needed.
(3) A legal services program may not
deny any employment opportunity to a
qualified employee or applicant with a
disability if the basis for the denial is a
need to make reasonable
accommodation to the physical or
mental limitations of the employee or
applicant.
(f) A legal services program may not
use employment tests or criteria that
discriminate against persons with
disabilities, and shall ensure that
employment tests are adapted for use by
persons who have disabilities that
impair sensory, manual, or speaking
skills.
(g) A legal services program may not
conduct a pre-employment medical
examination or make a pre-employment
inquiry as to whether an applicant is a
person with a disability or as to the
nature or severity of a disability except
under the circumstances described in 45
CFR 84.14(a) through (d)(2). The
Corporation shall have access to
relevant information obtained in
accordance with this section to permit
investigations of alleged violations of
this Part.
(h) A legal services program shall post
in prominent places in each of its offices
a notice stating that the legal services
program does not discriminate on the
basis of disability.
(i) Any recruitment materials
published or used by a legal services
program shall include a statement that
the legal services program does not
discriminate on the basis of disability.
sroberts on PROD1PC70 with PROPOSALS
§ 1624.7
Enforcement.
(a) The procedures described in Part
1618 of these regulations shall apply to
any alleged violation of this Part by a
legal services program.
(b) When LSC receives a complaint of
a violation of this Part, LSC policy is
generally to refer such complainants
promptly to the appropriate Federal,
state or local agencies, although LSC
retains the discretion to investigate all
complaints and/or to maintain an open
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16:30 May 11, 2006
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27659
complaint file during the pendency of
an investigation being conducted by
such other Federal, state or local agency.
LSC may use, at its discretion,
information obtained by such other
agency as may be available to LSC,
including findings of such other agency
of whether discrimination on the basis
of disability occurred.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT: Ms.
Robin Schulze, (703) 602–0326.
SUPPLEMENTARY INFORMATION:
Victor M. Fortuno,
General Counsel and Vice President for Legal
Affairs.
[FR Doc. E6–7280 Filed 5–11–06; 8:45 am]
DFARS Transformation is a major
DoD initiative to dramatically change
the purpose and content of the DFARS.
The objective is to improve the
efficiency and effectiveness of the
acquisition process, while allowing the
acquisition workforce the flexibility to
innovate. The transformed DFARS will
contain only requirements of law, DoDwide policies, delegations of FAR
authorities, deviations from FAR
requirements, and policies/procedures
that have a significant effect beyond the
internal operating procedures of DoD or
a significant cost or administrative
impact on contractors or offerors.
Additional information on the DFARS
Transformation initiative is available at
https://www.acq.osd.mil/dpap/dars/
dfars/transformation/index.htm.
This proposed rule is a result of the
DFARS Transformation initiative. The
proposed DFARS changes—
• Clarify the authority of a
contracting officer’s representative; and
• Remove internal DoD procedures
relating to the designation of a
contracting officer’s representative. Text
on this subject will be relocated to the
new DFARS companion resource,
Procedures, Guidance, and Information
(PGI). Additional information on PGI is
available at https://www.acq.osd.mil/
dpap/dars/pgi.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
BILLING CODE 7050–01–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 201
RIN 0750–AF30
Defense Federal Acquisition
Regulation Supplement; Contracting
Officers’ Representatives (DFARS
Case 2005–D022)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule with request for
comments.
AGENCY:
SUMMARY: DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
update text pertaining to the designation
of a contracting officer’s representative.
This proposed rule is a result of a
transformation initiative undertaken by
DoD to dramatically change the purpose
and content of the DFARS.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before July
11, 2006, to be considered in the
formation of the final rule.
ADDRESSES: You may submit comments,
identified by DFARS Case 2005–D022,
using any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• E-mail: dfars@osd.mil. Include
DFARS Case 2005–D022 in the subject
line of the message.
• Fax: (703) 602–0350.
• Mail: Defense Acquisition
Regulations System, Attn: Ms. Robin
Schulze, OUSD(AT&L)DPAP(DARS),
IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301–3062.
• Hand Delivery/Courier: Defense
Acquisition Regulations System, Crystal
Square 4, Suite 200A, 241 18th Street,
Arlington, VA 22202–3402.
PO 00000
Frm 00011
Fmt 4702
Sfmt 4702
A. Background
B. Regulatory Flexibility Act
DoD does not expect this rule to have
a significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because the proposed rule addresses
internal DoD procedural matters, and
makes no significant change to DoD
contracting policy. Therefore, DoD has
not performed an initial regulatory
flexibility analysis. DoD invites
comments from small businesses and
other interested parties. DoD also will
consider comments from small entities
concerning the affected DFARS subpart
in accordance with 5 U.S.C. 610. Such
comments should be submitted
separately and should cite DFARS Case
2005–D022.
E:\FR\FM\12MYP1.SGM
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]]>Agencies
[Federal Register Volume 71, Number 92 (Friday, May 12, 2006)]
[Proposed Rules]
[Pages 27654-27659]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-7280]
=======================================================================
-----------------------------------------------------------------------
LEGAL SERVICES CORPORATION
45 CFR Part 1624
Prohibition Against Discrimination on the Basis of Disability
AGENCY: Legal Services Corporation.
ACTION: Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: This Notice of Proposed Rulemaking (NPRM) proposes to amend
the Legal Services Corporation's regulation on prohibitions against
discrimination on the basis of disability. These proposed changes are
intended to improve the utility of the regulation for LSC, its grantees
and other interested persons, by updating the terminology used
throughout the regulation, by adding a reference to compliance with the
Americans with Disabilities Act and by adding language to the
enforcement provision setting forth LSC policy regarding investigation
of complaints of violation of this regulation.
DATES: Comments on this NPRM are due on June 26, 2006.
ADDRESSES: Written comments may be submitted by mail, fax or e-mail to
Mattie Cohan Condray, Senior Assistant General Counsel, Office of Legal
Affairs, Legal Services Corporation, 3333 K Street, NW., Washington, DC
20007; 202-295-1624 (ph); 202-337-6519 (fax); mcondray@lsc.gov.
FOR FURTHER INFORMATION CONTACT: Mattie Cohan Condray, Senior Assistant
General Counsel, 202-295-1624 (ph); mcondray@lsc.gov.
SUPPLEMENTARY INFORMATION:
Background
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 706), as
amended, prohibits discrimination on the basis of handicap by
recipients of Federal assistance. As recipients of federal assistance,
Legal Services Corporation (LSC) grant recipients are subject to the
non-discrimination requirements of Section 504. At the same time, while
the Corporation is not obligated to enforce Section 504 of the
Rehabilitation Act (since it is not an agency, department or
instrumentality of the Federal
[[Page 27655]]
government), it does have the authority to ensure that LSC grant
recipients comply with its provisions. LSC chose to exercise this
authority and adopted the Part 1624 regulation implementing the non-
discrimination requirements in Section 504 in 1979. The regulation has
not been amended since that time.
On October 29, 2005, the LSC Board of Directors directed that LSC
initiate a rulemaking to consider revisions to LSC's regulation at 45
CFR Part 1624. The rulemaking proceeding is intended to provide the
opportunity for an unlimited and thorough review of the regulation with
the intent of updating and improving the rule as appropriate. At the
Board's further direction, prior to the development of this Notice of
Proposed Rulemaking (``NPRM''), LSC convened a Rulemaking Workshop \1\
to consider revisions to this Part.
---------------------------------------------------------------------------
\1\ Under LSC's Rulemaking Protocol, a Rulemaking Workshop is a
meeting at which the participants (which may include LSC Board
members, staff, grantees and other interested parties) ``hold open
discussions designed to elicit information about problems or
concerns with the regulation (or certain aspects thereof) and
provide an opportunity for sharing ideas regarding how to address
those issues. * * * [A] Workshop is not intended to develop detailed
alternatives or to obtain consensus on regulatory proposals.'' 67 FR
69762, 69763 (November 19, 2002).
---------------------------------------------------------------------------
LSC convened a Rulemaking Workshop on December 13, 2005 to discuss
Part 1624. The following persons participated in the Workshop: John
``Chip'' Gray, South Brooklyn Legal Services; John Herrion, United
Spinal Association; Linda Perle, Center for Law and Social Policy; Don
Saunders, National Legal Aid and Defender Association; Helaine Barnett,
LSC President (welcoming remarks only); Karen Sarjeant, LSC Vice
President for Programs and Compliance; Charles Jeffress, LSC Chief
Administrative Officer; Mattie Condray, LSC Office of Legal Affairs;
Curtis Goffe, LSC Office of Compliance and Enforcement; Tillie Lacayo,
LSC Office of Program Performance; Mark Freedman, LSC Office of Legal
Affairs; and Treefa Aziz, LSC Office of Government Relations and Public
Affairs.
The discussion was wide-ranging and open. The highlights of the
discussion are summarized as follows. There was a general assessment
that grantees appear to be in compliance with the regulation and that
LSC does not receive many complaints of non-compliance. It was noted
that most of the complaints that do come to LSC are from grantee staff
and are related to employment discrimination, rather than accessibility
of services for applicants or clients with disabilities. LSC's staff
practice is to refer such complainants to the appropriate Federal,
state or local agency. At the same time, it was noted that the language
of the regulation could be updated in places and that there are new
assistive technologies which could be referenced in the regulation.
The participants discussed the fact that LSC's enforcement
expertise and resources are limited and that claimants, with the
passage of the Americans with Disabilities Act (``ADA''), have recourse
to other agencies and private actions for the pursuit of redress for
discrimination on the basis of disability. The notion that the
regulation could be amended to reflect these facts was raised. In
addition, the participants also discussed other avenues of raising
awareness of accessibility issues, such as the issuance of guidance
from LSC in the form of a Program Letter, focusing on accessibility in
program visits and in competition, better sharing of best practices and
emphasis on opportunities through LSC's Technology Initiative Grant
Program.
At its meeting on January 27, 2006, LSC management made a
presentation to the Operations and Regulations Committee of the LSC
Board of Directors on the Rulemaking Workshop. The Committee then voted
to recommend that the Board of Directors directed LSC to continue the
rulemaking and develop an NPRM, proposing such changes as deemed
appropriate. On January 28, 2006, the Board of Directors voted to
accept the recommendation of the Operations and Regulations Committee.
A Draft NPRM was then presented to the Operations and Regulations
Committee at its meeting on April 28, 2006. The Committee voted to
recommend that the Board of Directors approve this NPRM for
publication. The following day the Board of Directors voted to accept
the Committee's recommendation and directed LSC to issue this NPRM for
public comment.
Summary of Proposed Changes
LSC is proposing only relatively minor changes to the regulation,
but LSC believes that these changes will improve the utility of the
regulation for LSC, its grantees and other interested persons. First,
LSC is proposing to update the nomenclature used throughout the
regulation to refer to ``person with a disability'' or ``persons with
disabilities'' instead of ``handicapped person(s).'' This change is not
intended to create any substantive change in meaning, but rather is
intended to reflect a more current terminology. Second, LSC is
proposing to add a reference to compliance with the Americans with
Disabilities Act to the regulation. This change is discussed in greater
detail in the section-by-section analysis section under the discussion
of proposed section 1624.1. Third, LSC is proposing to add language to
the enforcement provision setting forth LSC policy regarding
investigation of complaints of violation of this regulation. This
change is discussed in greater detail in the section-by-section
analysis section under the discussion of proposed section 1624.8. LSC
is also proposing to make a number of technical and grammatical
corrections to the regulation.
In addition, LSC is proposing to eliminate the current section
1624.7 of the regulation on self-evaluation. This section required
legal services programs to evaluate by January 1, 1980, their
facilities, practices and policies to determine the extent to which
they complied with the requirements of this Part. This section does not
contain a continuing requirement for self-evaluation and, as such, is
now obsolete. LSC is thus proposing to eliminate it. Under section
1624.5, grantees are required to certify facility accessibility prior
to entering into leases or purchases of office space (or, if the
facility will not be accessible, provide a detailed statement as to why
the facility is not accessible and describe steps that the grantee will
take to make sure its services are accessible). This requirement
ensures that facilities are, to the maximum extent feasible, accessible
to persons with disabilities and ensures that grantees are taking
accessibility issues into consideration in providing services.
Section-by-Section Analysis
Section 1624.1--Purpose
LSC is proposing to change the terms ``handicapped persons'' as
they appear in this section to ``persons with disabilities.'' In
addition, LSC is proposing to add language to make reference to the
ADA. The new language would note that requirements of this Part apply
in addition to any responsibilities legal services programs may have
under applicable requirements of the Americans with Disabilities Act
and applicable implementing regulations of the Department of Justice
and the Equal Employment Opportunity Commission. The proposed language
is not intended to impose any new obligations on grantees with respect
to LSC-related regulatory compliance matters, nor assume LSC authority
for enforcing the ADA that LSC does not possess.
[[Page 27656]]
Section 1624.2--Application
LSC is not proposing any changes to this section.
Section 1624.3--Definitions
LSC is proposing to change the term ``handicapped person'' to
``person with a disability'' in section 1624.3(c)(1). Similarly, LSC
proposes to change the term ``qualified handicapped person'' in section
1624.3(d) to ``qualified person with a disability.'' In neither case is
the proposed change intended to create any substantive change to the
regulation, but rather to reflect updated and preferred nomenclature.
LSC is also proposing to add a definition of the term ``auxiliary
aids and/or other assistive technology.'' Under section 1624.4,
grantees with more than fifteen employees are required to provide
appropriate ``auxiliary aids'' when necessary to clients and applicants
to make services accessible. Although the current regulation uses the
term ``auxiliary aids,'' it does not contain a formal definition of the
term in the definition section. Rather, section 1624.4 provides that
for the purposes of that section, ``auxiliary aids include, but are not
limited to, brailled and taped material, interpreters,
telecommunications equipment for the deaf, and other aids for persons
with impaired vision and hearing.'' Although this informal definition
of ``auxiliary aids'' appears to be limited to aids for persons with
impaired vision or hearing, the provision of the regulation which
requires their use calls for auxiliary aids for persons ``with impaired
sensory, manual or speaking skills,'' which is broader than simply
vision or hearing impairments. LSC believes that this discrepancy
should be rectified. In addition, although the term ``auxiliary aids''
is not used in the section on employment (1624.6), a similar concept
appears there. Under section 1624.6(e), grantees are required to make
reasonable accommodations for otherwise qualified employees and job
applicants with disabilities. The regulation specifies that, among
other things, ``reasonable accommodations'' include (but are not
limited to) ``the modification of equipment or devices, the provision
of readers or interpreters and other similar actions.''
Rather than continue to have these similar concepts set forth in
different parts of the regulation with different terminology, LSC is
proposing to use the single term ``auxiliary aids and/or other
assistive technology'' in both sections and to add a definition of that
term to the definitions section. Since the original adoption of the
regulation in 1979 there have been significant advances in technology
which are available to persons with disabilities to help them access
and benefit from legal services programs' services. The proposed
definition is based on a definition of ``assistive technologies'' found
in the Individuals with Disabilities Education Act, 20 U.S.C. 1400, et
seq., and is intended to broadly refer to the range of aids or
technologies which grantees can make available to applicants, clients
and employees with disabilities, as appropriate and necessary, to
comply with the requirements of this Part. LSC seeks comment on whether
additional specific assistive technologies should be referenced in the
list of non-exhaustive examples in the definition, and if so, which
ones.
Section 1624.4--Discrimination Prohibited
LSC is proposing two notable amendments to this section. First, in
each instance in which the term ``handicapped person'' or ``handicapped
persons'' appears, LSC proposes to replace it with ``person with a
disability'' or ``persons with disabilities'' as grammatically
appropriate. As noted above, LSC intends no substantive change, but
rather to reflect updated and preferred nomenclature. LSC is also
proposing to use the term ``auxiliary aids and/or other assistive
technologies'' instead of the term ``auxiliary aids'' in section
1624.4(d)(1) and (2) and to delete the text appearing at 1624.4(d)(3).
As discussed above, LSC believes that users of the regulation will be
better served by having a formal definition of the term in the
definitions section of the regulation than an informal definition
elsewhere. In addition, LSC believes that expanding the term to include
``other assistive technologies,'' combined with the proposed
definition, will better reflect the range of systems and devices
existing in the market that grantees may choose from to help make their
services accessible to persons with disabilities.
Section 1624.5--Accessibility of Legal Services
LSC is proposing two notable amendments to this section. First, in
each instance in which the term ``handicapped person'' or ``handicapped
persons'' appears, LSC proposes to replace it with ``person with a
disability'' or ``persons with disabilities'' as grammatically
appropriate. As noted above, LSC intends no substantive change, but
rather to reflect updated and preferred nomenclature. Second, LSC is
proposing to replace the reference to ``the appropriate Regional
Office'' in section 1624.5(c) with ``LSC.'' At the time Part 1624 was
originally adopted LSC had Regional Offices, but it no longer does. All
LSC business is conducted out of its Washington, D.C. offices. As such,
the statement required by section 1624.5(c) cannot be submitted to a
``Regional Office'' any longer and such statements are simply submitted
to LSC. The regulation should reflect this fact.
Section 1624.6--Employment
LSC is proposing two notable amendments to this section. First, in
each instance in which the term ``handicapped person'' or ``handicapped
persons'' appears, LSC proposes to replace it with ``person with a
disability'' or ``persons with disabilities'' as grammatically
appropriate. As noted above, LSC intends no substantive change, but
merely the use of updated and preferred nomenclature.
LSC is also proposing to use the term ``auxiliary aids and/or other
assistive technologies'' instead of the words ``readers or
interpreters'' in section 1626(e)(1). As discussed above, LSC believes
that users of the regulation will be better served by using a
standardized and formally defined term. LSC believes that using the
term ``auxiliary aids and/or other assistive technologies'' in this
section, combined with the proposed definition of that term, will
better reflect the range of systems and devices existing in the market
that grantees may choose from to make reasonable accommodations in
employment for otherwise qualified applicants and employees with
disabilities.
Section 1624.7--Enforcement
The current regulation specifies only that LSC's enforcement
procedures at 45 CFR part 1618 shall apply to alleged violations of
this Part. Under part 1618, LSC is obligated to investigate complaints
of violations of the LSC Act, appropriations acts, LSC regulations or
grant assurances and to work with grantees to resolve matters
informally when possible. Ultimately, if no informal resolution is
agreed upon, LSC's enforcement powers involve reducing or eliminating
funding generally. LSC does not have authority to directly order
``injunctive relief'' however, as do other Federal, state and local
agencies charged with ADA and other disability-based discrimination law
enforcement. Moreover, LSC's Office of Compliance and Enforcement,
although taking those complaints of disability-based discrimination it
[[Page 27657]]
receives seriously, has limited resources available and does not
generally have significant expertise in investigating these types of
claims.
In light of the above, LSC's policy when such complaints have been
filed with the Office of Compliance and Enforcement has been to
recommend that complainants pursue claims with appropriate Federal,
state or local agencies which may be in a better position to
investigate their claims and order the relief being sought. In cases
where a claim is filed with another agency, LSC generally defers to
that investigation during its pendency and relies upon the findings of
the other agency in resolving the complaint filed with LSC. LSC has
found this policy to be efficient and effective. Accordingly, LSC is
proposing to explicitly incorporate this policy into the regulation.
LSC believes this action will clarify expectations for LSC enforcement
staff, grantees, and potential claimants alike. Of course, LSC retains
the discretion and authority to conduct its own investigations into any
claim of disability-based discrimination grounded in this Part or the
grant assurances and make its own findings upon the conclusion of such
investigation, irrespective of whether a complaint based on the same
circumstances is pending at another agency.
List of Subjects in 45 CFR Part 1624
Civil rights, Grant programs--law, Individuals with disabilities,
Legal services.
For reasons set forth above, and under the authority of 42 U.S.C.
2996g(e), LSC proposes to revise 45 CFR part 1624 as follows:
PART 1624-PROHIBITION AGAINST DISCRIMINATION ON THE BASIS OF
DISABILITY
Sec.
1624.1 Purpose.
1624.2 Application.
1624.3 Definitions.
1624.4 Discrimination prohibited.
1624.5 Accessibility of legal services.
1624.6 Employment.
1624.7 Enforcement.
Authority: 49 U.S.C. 794; 42 U.S.C. 2996f(a) (1) and (3).
Sec. 1624.1 Purpose.
The purpose of this part is to assist and provide guidance to legal
services programs supported in whole or in part by Legal Services
Corporation funds in removing any impediments that may exist to the
provision of legal assistance to persons with disabilities eligible for
such assistance in accordance with section 504 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. section 794 and with sections
1007(a)(1) and (3) of the Legal Services Corporation Act, as amended,
42 U.S.C. sections 2996f(a)(1) and (3), with respect to the provision
of services to and employment of persons with disabilities. The
requirements of this Part apply in addition to any responsibilities
legal services programs may have under applicable requirements of the
Americans with Disabilities Act and applicable implementing regulations
of the Department of Justice and the Equal Employment Opportunity
Commission.
Sec. 1624.2 Application.
This part applies to each legal services program receiving
financial assistance from the Legal Services Corporation.
Sec. 1624.3 Definitions.
As used in this part, the term:
(a) Legal services program means any recipient, as defined by Sec.
1600.1 of this chapter, or any other public or private agency,
institution, organization, or other entity, or any person to which or
to whom financial assistance is extended by the Legal Services
Corporation directly or through another agency, institution,
organization, entity or person, including any successor, assignee, or
transferee of a legal services program, but does not include the
ultimate beneficiary of legal assistance;
(b) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, or other real or personal
property or interest in such property;
(c) (1) Person with a disability means any person who:
(i) Has a physical or mental impairment which substantially limits
one or more major life activities,
(ii) Has a record of such an impairment, or
(iii) Is regarded as having such an impairment;
(2) As used in paragraph (c)(1) of this section the phrase:
(i) Physical or mental impairment means: Any physiological disorder
or condition, cosmetic disfigurement, or anatomical loss affecting one
or more of the following body systems: Neurological; musculoskeletal;
special sense organs; digestive; genitourinary; hemic and lymphatic;
skin; and endocrine; or any mental or psychological disorder, such as
mental retardation, organic brain syndrome, emotional or mental
illness, and specific learning disabilities; The phrase 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;
(ii) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working;
(iii) Has a record of such impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities;
(iv) Is regarded as having an impairment means:
(A) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by a legal services program
as constituting such a limitation;
(B) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others
toward such impairments; or
(C) Has none of the impairments defined in paragraph (c)(2)(i) of
this section but is treated by a legal services program as having such
an impairment;
(d) Qualified person with a disability means:
(1) With respect to employment, a person with a disability who,
with reasonable accommodation, can perform the essential functions of
the job in question;
(2) With respect to other services, a person with a disability who
meets the eligibility requirements for the receipt of such services
from the legal services program.
(e) Auxiliary aids and/or other assistive technologies means any
item, piece of equipment, or product system whether acquired
commercially off the shelf, modified or customized, that is used to
increase, maintain, or improve functional capabilities of individuals
with disabilities. Auxiliary aids and/or assistive technologies
include, but are not limited to, brailled and taped material,
interpreters, telecommunications equipment for the deaf, voice
recognition software, computer screen magnifiers, screen reader
software, wireless amplification systems, and other aids.
Sec. 1624.4 Discrimination prohibited.
(a) No qualified person with a disability shall, on the basis of
disability, be excluded from participation in, be denied the benefits
of, or otherwise be subjected to discrimination by any legal services
[[Page 27658]]
program, directly or through any contractual or other arrangement.
(b) A legal services program may not deny a qualified person with a
disability the opportunity to participate in any of its programs or
activities or to receive any of its services provided at a facility on
the ground that the program operates a separate or different program,
activity or facility that is specifically designed to serve persons
with disabilities.
(c) In determining the geographic site or location of a facility, a
legal services program may not make selections that have the purpose or
effect of excluding persons with disabilities from, denying them the
benefits of, or otherwise subjecting them to discrimination under any
program or activity of the legal services program.
(d) (1) A legal services program that employs a total of fifteen or
more persons, regardless of whether such persons are employed at one or
more locations, shall provide, when necessary, appropriate auxiliary
aids and/or other assistive technologies to persons with impaired
sensory, manual or speaking skills, in order to afford such persons an
equal opportunity to benefit from the legal services program's
services. A legal services program is not required to maintain such
aids at all times, provided they can be obtained on reasonable notice.
(2) The Corporation may require legal services programs with fewer
than fifteen employees to provide auxiliary aids where the provision of
such aids would not significantly impair the ability of the legal
services program to provide its services.
(e) A legal services program shall take reasonable steps to ensure
that communications with its applicants, employees, and beneficiaries
are available to persons with impaired vision and hearing.
(f) A legal services program may not deny persons with disabilities
the opportunity to participate as members of or in the meetings or
activities of any planning or advisory board or process established by
or conducted by the legal services program, including but not limited
to meetings and activities conducted in response to the requirements of
45 CFR part 1620.
Sec. 1624.5 Accessibility of legal services.
(a) No qualified person with a disability shall, because a legal
services program's facilities are inaccessible to or unusable by
persons with disabilities, be denied the benefits of, be excluded from
participation in, or otherwise be subjected to discrimination by any
legal services program.
(b) A legal services program shall conduct its programs and
activities so that, when viewed in their entirety, they are readily
accessible to and usable by persons with disabilities. This paragraph
does not necessarily require a legal services program to make each of
its existing facilities or every part of an existing facility
accessible to and usable by persons with disabilities, or require a
legal services program to make structural changes in existing
facilities when other methods are effective in achieving compliance. In
choosing among available methods for meeting the requirements of this
paragraph, a legal services program shall give priority to those
methods that offer legal services to persons with disabilities in the
most integrated setting appropriate.
(c) A legal services program shall, to the maximum extent feasible,
ensure that new facilities that it rents or purchases are accessible to
persons with disabilities. Prior to entering into any lease or contract
for the purchase of a building, a legal services program shall submit a
statement to LSC certifying that the facilities covered by the lease or
contract will be accessible to persons with disabilities, or if the
facilities will not be accessible, a detailed description of the
efforts the program made to obtain accessible space, the reasons why
the inaccessible facility was nevertheless selected, and the specific
steps that will be taken by the legal services program to ensure that
its services are accessible to persons with disabilities who would
otherwise use that facility. After a statement certifying facility
accessibility has been submitted, additional statements need not be
resubmitted with respect to the same facility, unless substantial
changes have been made in the facility that affect its accessibility.
(d) A legal services program shall ensure that new facilities
designed or constructed for it are readily accessible to and usable by
persons with disabilities. Alterations to existing facilities shall, to
the maximum extent feasible, be designed and constructed to make the
altered facilities readily accessible to and usable by persons with
disabilities.
Sec. 1624.6 Employment.
(a) No qualified person with a disability shall, on the basis of
disability, be subjected to discrimination in employment by any legal
services program.
(b) A legal services program shall make all decisions concerning
employment under any program or activity to which this part applies in
a manner that ensures that discrimination on the basis of disability
does not occur, and may not limit, segregate, or classify applicants or
employees in any way that adversely affects their opportunities or
status because of disability.
(c) The prohibition against discrimination in employment applies to
the following activities:
(1) Recruitment, advertising, and the processing of applications
for employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and seniority
lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or
not administered by the legal services program;
(7) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, and selection for leaves of absence to pursue training;
(8) Employer sponsored activities, including social or recreational
programs; and
(9) Any other term, condition, or privilege of employment.
(d) A legal services program may not participate in any contractual
or other relationship with persons, agencies, organizations or other
entities such as, but not limited to, employment and referral agencies,
labor unions, organizations providing or administering fringe benefits
to employees of the legal services program, and organizations providing
training and apprenticeship programs, if the practices of such person,
agency, organization, or other entity have the effect of subjecting
qualified applicants or employees with disabilities to discrimination
prohibited by this paragraph.
(e) A legal services program shall make reasonable accommodation to
the known physical or mental limitations of an otherwise qualified
applicant or employee with a disability unless the accommodation would
impose an undue hardship on the operation of the program.
(1) For purposes of this paragraph (e), reasonable accommodation
may include:
(i) making facilities used by employees readily accessible to and
usable by persons with disabilities; and
[[Page 27659]]
(ii) job restructuring, part-time or modified work schedules,
acquisition or modification of equipment or devices, the provision of
auxiliary aids and/or other assistive technologies, and other similar
actions.
(2) In determining whether an accommodation would impose an undue
hardship on the operation of a legal services program, factors to be
considered include, but are not limited to, the overall size of the
legal services program with respect to number of employees, number and
type of facilities, and size of budget, and the nature and costs of the
accommodation needed.
(3) A legal services program may not deny any employment
opportunity to a qualified employee or applicant with a disability if
the basis for the denial is a need to make reasonable accommodation to
the physical or mental limitations of the employee or applicant.
(f) A legal services program may not use employment tests or
criteria that discriminate against persons with disabilities, and shall
ensure that employment tests are adapted for use by persons who have
disabilities that impair sensory, manual, or speaking skills.
(g) A legal services program may not conduct a pre-employment
medical examination or make a pre-employment inquiry as to whether an
applicant is a person with a disability or as to the nature or severity
of a disability except under the circumstances described in 45 CFR
84.14(a) through (d)(2). The Corporation shall have access to relevant
information obtained in accordance with this section to permit
investigations of alleged violations of this Part.
(h) A legal services program shall post in prominent places in each
of its offices a notice stating that the legal services program does
not discriminate on the basis of disability.
(i) Any recruitment materials published or used by a legal services
program shall include a statement that the legal services program does
not discriminate on the basis of disability.
Sec. 1624.7 Enforcement.
(a) The procedures described in Part 1618 of these regulations
shall apply to any alleged violation of this Part by a legal services
program.
(b) When LSC receives a complaint of a violation of this Part, LSC
policy is generally to refer such complainants promptly to the
appropriate Federal, state or local agencies, although LSC retains the
discretion to investigate all complaints and/or to maintain an open
complaint file during the pendency of an investigation being conducted
by such other Federal, state or local agency. LSC may use, at its
discretion, information obtained by such other agency as may be
available to LSC, including findings of such other agency of whether
discrimination on the basis of disability occurred.
Victor M. Fortuno,
General Counsel and Vice President for Legal Affairs.
[FR Doc. E6-7280 Filed 5-11-06; 8:45 am]
BILLING CODE 7050-01-P
