Discrimination on the Basis of Disability in Federally Assisted Programs and Activities, 14972-14976 [2012-6122]
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Federal Register / Vol. 77, No. 50 / Wednesday, March 14, 2012 / Rules and Regulations
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
Tribes, on the relationship between the
Federal Government and Indian Tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian Tribes.
Energy Effects
We have analyzed this rule under
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. We have
determined that it is not a ‘‘significant
energy action’’ under that order because
it is not a ‘‘significant regulatory action’’
under Executive Order 12866 and is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy. The Administrator of the Office
of Information and Regulatory Affairs
has not designated it as a significant
energy action. Therefore, it does not
require a Statement of Energy Effects
under Executive Order 13211.
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Technical Standards
The National Technology Transfer
and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use
voluntary consensus standards in their
regulatory activities unless the agency
provides Congress, through the Office of
Management and Budget, with an
explanation of why using these
standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies.
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have concluded this action is one of a
category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule is categorically
excluded, under figure 2–1, paragraph
(34)(g), of the Instruction. This rule
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involves the establishment of safety
zones. An environmental analysis
checklist and a categorical exclusion
determination are available in the
docket where indicated under
ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
remain in the safety zones created in
this section or bring, cause to be
brought, or allow to remain in the safety
zones created in this section any
vehicle, vessel, or object unless
authorized by the Captain of the Port or
his designated representative. The
Captain of the Port may be assisted by
other Federal, state, or local agencies
with the enforcement of the safety
zones.
(c) Enforcement period. The safety
zones created by this section will be in
effect from 4 p.m. March 1, 2012,
through 11 a.m. July 1, 2012.
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
Dated: March 1, 2012.
B.C. Jones,
Captain, U. S. Coast Guard, Captain of the
Port, Columbia River.
[FR Doc. 2012–6137 Filed 3–13–12; 8:45 am]
■
Authority: 33 U.S.C. 1231; 46 U.S.C.
Chapter 701, 3306, 3703; 50 U.S.C. 191, 195;
33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L.
107–295, 116 Stat. 2064; Department of
Homeland Security Delegation No. 0170.1.
2. Add § 165.T13–207 to read as
follows:
■
§ 165.T13–207 Safety Zones; Sellwood
Bridge project, Willamette River; Portland,
OR
(a) Location. The safety zone on the
western river bank encompasses all
waters of the Willamette River within
the following four lines: Line one
starting at 45–27′53.5″ N/122–40′03.5″
W then heading 375 feet offshore to 45–
27′53.5″ N/122–39′58.5″ W then heading
up river 200 feet to 45–27′49.5″ N/122–
39′58.5″ W then heading 375 feet back
to the shore at 45–27′49.5″ N/122–
40′04.5″ W then following the shoreline
to end at 45–27′53.5″ N/122–40′40′03.5″
W. The safety zone on the eastern river
bank is encompassed within the
following four lines: Line one starting at
45–27′53.5″ N/122–39′50.5″ W then
heading 420 feet offshore to 45–27′53.5″
N/122–39′55.0″ W then heading up river
200 feet to 45–27′49.5″ N/122–39′55.0″
W then heading 420 feet back to the
shore at 45–27′49.5″ N/122–39′47.0″ W
then following the shoreline to end at
45–27′49.5″ N/122–39′47.0″ W.
Geographically, this rule will cover all
waters of the Willamette River 100 feet
upriver and downriver of the existing
Sellwood Bridge, inward 375 feet from
the Western side shoreline, and inward
420 feet from the Eastern side shoreline.
The section of the Willamette River
between the safety zones will remain
open for vessel transits, and it will have
a minimum width of 138 feet at all
times.
(b) Regulations. In accordance with
the general regulations in 33 CFR part
165, subpart C, no person may enter or
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BILLING CODE 9110–04–P
DEPARTMENT OF EDUCATION
34 CFR Part 104
Discrimination on the Basis of
Disability in Federally Assisted
Programs and Activities
Office for Civil Rights,
Department of Education.
ACTION: Notice of interpretation.
AGENCY:
The Department of Education
(Department or Education) provides
notice of its interpretation of Section
504 of the Rehabilitation Act of 1973
and the Department’s implementing
regulations, which prohibit
discrimination on the basis of disability
in federally assisted programs and
activities (Education’s Section 504
regulations). Among other things,
Education’s Section 504 regulations
address the accessibility and usability of
a recipient’s facilities by persons with
disabilities. This document explains
that for new construction and
alterations commenced on or after
September 15, 2010, we will permit
recipients of Federal financial assistance
from the Department to use an
additional alternative accessibility
standard in lieu of the Uniform Federal
Accessibility Standards (UFAS) for the
purpose of complying with Section 504.
Specifically, we will permit the use of
the U. S. Department of Justice’s 2010
ADA Standards for Accessible Design as
defined in the Americans with
Disabilities Act (ADA) Title II regulation
(referred to in this notice as the 2010
Title II ADA Standards) except that
Exception (1) to Section 206.2.3 does
not apply. Use of the 2010 Title II ADA
Standards will not be required as a
means of compliance with Section 504,
SUMMARY:
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however, until the Department revises
its Section 504 regulations to formally
adopt the 2010 Title II ADA Standards
in lieu of UFAS.
DATES: Effective date: March 14, 2012.
FOR FURTHER INFORMATION CONTACT:
Arthur Goldman, U.S. Department of
Education, 400 Maryland Avenue SW.,
Washington, DC 20202–1100.
Telephone: (800) 421–3481, or by email
at: OCR@ed.gov.
If you use a telecommunications
device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay
Service (FRS), toll-free, at 1–800–877–
8339.
Individuals with disabilities can
obtain this document in an accessible
format (e.g., braille, large print,
audiotape, or computer disc) on request
to the contact person listed in this
section.
SUPPLEMENTARY INFORMATION:
Background
Section 504
Education implements the
requirements of Section 504 of the
Rehabilitation Act of 1973 (Section
504),1 which prohibits discrimination
on the basis of disability 2 in federally
assisted programs or activities, through
regulations in 34 CFR part 104.
Education’s Section 504 regulations
apply to recipients to which the
Department extends Federal financial
assistance. Among other things,
Education’s Section 504 regulations
prohibit 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.3
Education’s Section 504 regulations
require that if construction of a
recipient’s facility commenced after the
effective date of the regulations (June 3,
1977) 4 the facility must be designed and
constructed so that it is readily
accessible to and usable by persons with
disabilities.5 These regulations also
1 29
U.S.C. 794.
this notice, we use the term ‘‘disability,’’ the
term that is currently used by Congress in
legislation, in place of the term ‘‘handicap,’’ which
was used in the 1973 statute and our 1977
regulations. There is no substantive difference.
3 34 CFR 104.21.
4 The former Department of Health, Education,
and Welfare issued section 504 regulations,
including this provision, with an effective date of
June 3, 1977. See 45 CFR part 84 (1978). Upon the
establishment of the Department of Education, 20
U.S.C. 3401 et seq., we adopted those regulations
without substantive change.
5 34 CFR 104.23(a) provides: Design and
construction. Each facility or part of a facility
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2 In
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require that facility alterations
commenced after June 3, 1977, 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.6
For facilities subject to the new
construction and alterations
requirements, 34 CFR 104.23(c) has
always incorporated by reference an
accessibility design standard, such that
construction or alterations in
conformance with that standard would
be deemed compliance with Education’s
Section 504 regulations.7 Under the
current regulations, at 34 CFR 104.23(c),
new construction or alterations made in
conformance with the Uniform Federal
Accessibility Standards (UFAS) are
deemed to be in compliance with
Education’s Section 504 regulations,
although a recipient may depart from
UFAS when other methods provide
equivalent or greater access to and
usability of the facility.8
The adoption of UFAS as an
accessibility design standard in
Education’s Section 504 regulations
occurred in 1991 as part of a joint
rulemaking with other Federal agencies,
led by the Department of Justice (DOJ)
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 * * * persons
[with disabilities], if the construction was
commenced after the effective date of this part.
6 34 CFR 104.23(b) provides: Alteration. Each
facility, or part of a facility which is altered by, on
behalf of, or for the use of a recipient after the
effective date of this part in a manner that affects
or could affect the usability of the facility or part
of the facility shall, to the maximum extent feasible,
be altered in such manner that the altered portion
of the facility is readily accessible to and usable by
* * * persons [with disabilities].
7 34 CFR 104.23(c). This section, in its entirety,
provides: Conformance with Uniform Federal
Accessibility Standards.
(1) Effective as of January 18, 1991, design,
construction, or alteration of buildings in
conformance with sections 3–8 of the Uniform
Federal Accessibility Standards (UFAS) (Appendix
A to 41 CFR subpart 101–19.6) shall be deemed to
comply with the requirements of this section with
respect to those buildings. Departures from
particular technical and scoping requirements of
UFAS by the use of other methods are permitted
where substantially equivalent or greater access to
and usability of the building is provided.
(2) For the purposes of this section, section
4.1.6(1)(g) of UFAS shall be interpreted to exempt
from the requirements of UFAS only mechanical
rooms and other spaces that, because of their
intended use, will not require accessibility to the
public or beneficiaries or result in the employment
or residence therein of persons with physical
[disabilities].
(3) This section does not require recipients to
make building alterations that have little likelihood
of being accomplished without removing or altering
a load-bearing structural member.
8 34 CFR 104.23(c)(1).
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14973
pursuant to its coordinating authority
for Section 504 under Executive Order
12250. We and the 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 1968,9 or
among the Section 504 regulations of
different Federal agencies.10 In addition,
after DOJ adopted the 1991 ADA
Accessibility Standards for compliance
with Title II of the ADA, Education
permitted entities subject to our Section
504 regulation and the ADA to use the
1991 Standards, except that the elevator
exemption contained at section 4.1.3(5)
and section 4.1.6(1)(k) does not apply.11
Title II Regulations
Title II of the ADA prohibits
discrimination on the basis of disability
by public entities. Public educational
institutions that are subject to
Education’s Section 504 regulations
because they receive Federal financial
assistance from us are also subject to the
Title II regulations because they are
public entities (e.g., school districts,
State educational agencies, public
institutions of vocational education, and
public colleges and universities).
Pursuant to a delegation by the Attorney
General of the United States, Education
shares in the enforcement of Title II by
virtue of being the designated agency to
investigate complaints and seek
voluntary compliance under Title II for
certain types of public educational
entities.12 Thus, for those entities,
Education enforces both Section 504
9 The Architectural Barriers Act of 1968 (ABA),
42 U.S.C. 4151–4157, directed four agencies, the
General Services Administration, the Department of
Housing and Urban Development, the Department
of Defense, and the United States Postal Service, to
establish accessibility standards for the design,
construction, and alteration of certain Federal and
federally funded buildings. The four agencies
adopted UFAS as the ABA standard in 1984.
10 55 FR 52136–37 (1990).
11 See ‘‘Major Differences Between the Americans
with Disabilities Act Accessibility Guidelines for
Buildings and Facilities and the Uniform Federal
Accessibility Standards,’’ Office for Civil Rights
(OCR), U.S. Department of Education, September
1993, at 4. This technical assistance handout was
distributed as an attachment to a September 17,
1993, memorandum from Norma V. Cantu,
Assistant Secretary for Civil Rights, to OCR Senior
Staff, with instructions that it was designed to
accompany technical-assistance presentations on
the issue of accessibility and that OCR staff should
disseminate copies to interested persons.
12 Education is the designated agency for public
elementary and secondary education systems and
institutions, institutions of higher education and
vocational education (other than schools of
medicine, dentistry, nursing, and other healthrelated schools), and libraries. 28 CFR 35.190(b)(2).
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and Title II, as well as the implementing
regulations of both statutes.13
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Definitions of Standards Referenced in
This Notice
In this notice, we explain our
interpretation of 34 CFR 104.23 as it
relates to new construction and
alterations commenced on or after
September 15, 2010. As described more
fully later in this notice, our purpose is
to inform all interested parties that for
new construction and alterations
commenced after that date, we are
interpreting Education’s current Section
504 regulations to permit use of
accessibility standards that are
consistent with DOJ’s Title II regulations
until Education’s Section 504
regulations are revised.14 DOJ first
issued the Title II regulations in 1991,15
and published revisions to the
regulations on September 15, 2010.
These revised regulations included
modifications to the Title II ADA
nondiscrimination requirements and
they adopt revised ADA accessibility
standards (the 2010 Title II ADA
Standards). Before discussing
Education’s decision to deem the 2010
Title II ADA Standards as an acceptable
alternative to UFAS, we first introduce
and define the various accessibility
standards referenced in the Title II
regulations or Education’s Section 504
regulations that are used for designing,
constructing, or altering a facility:
UFAS means the Uniform Federal
Accessibility Standards. Education’s
Section 504 regulations reference
sections 3 through 8 of UFAS.16
1991 Standards means the
requirements in the ADA Standards for
Accessible Design originally published
as Appendix A to 28 CFR part 36 on
July 26, 1991, and republished as
Appendix D to 28 CFR part 36 on
September 15, 2010.17
13 DOJ enforces Title III of the ADA and has
advised Education that private educational
institutions that are subject to Education’s Section
504 regulations are in almost all cases also subject
to Title III.
14 34 CFR 104.23(c). 42 U.S.C. 12131 et seq.; 28
CFR part 35. The Title II regulations and
supplementary information were published in the
Federal Register on September 15, 2010 (75 FR
56164–56236). DOJ’s ADA Web site contains links
to HTML and PDF versions at www.ada.gov/
regs2010/ADAregs2010.htm.
15 28 CFR part 35 (1992). DOJ also issued
regulations in 1991 under Title III of the ADA, 42
U.S.C. 12181 et seq., 28 CFR part 36 (1992), that
prohibit discrimination on the basis of disability by,
among other entities, private educational
institutions. As previously noted, DOJ enforces
Title III of the ADA.
16 34 CFR 104.23(c).
17 28 CFR 35.104. These standards were based on
the ADA Accessibility Guidelines (ADAAG)
published by the Access Board (Architectural and
Transportation Barriers Compliance Board) in 1991
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2010 Standards as defined in the Title
II regulation, means the 2010 ADA
Standards for Accessible Design, which
consist of the 2004 ADAAG and the
requirements contained in 28 CFR
35.151.18 In this notice, these standards
are referred to as the ‘‘2010 Title II ADA
Standards.’’
2004 ADAAG means the requirements
set forth in appendices B and D to 36
CFR part 1191 (2009).19
Accessibility Standards in Title II
Regulations Issued by DOJ
DOJ’s Title II regulations prohibit
exclusion from participation in or the
denial of the benefits of services,
programs, or activities, or other
discrimination because a public entity’s
facilities are inaccessible to or unusable
by individuals with disabilities. The
Title II regulations provide that design,
construction, and alterations of facilities
commenced after January 26, 1992, must
be done in such a manner that the
facility or part of the facility being built
or altered is readily accessible to and
usable by individuals with
disabilities.20
The Title II regulations issued in 1991
(which have been revised in relevant
part, as discussed later in this section)
incorporated by reference two sets of
standards for new construction and
alterations: UFAS and the 1991
Standards 21 without the ‘‘elevator
exemption.’’ 22 The 1991 Title II
(1991 ADAAG). DOJ’s ADA Web site contains links
to HTML and PDF versions of the 1991 Standards
at www.ada.gov/stdspdf.htm.
18 28 CFR 35.104. DOJ provides an online
compilation of the revised ADA regulations that
includes the 2010 Standards, guidance about the
2010 Standards, and the Title II and Title III
regulations and the interpretive guidance
accompanying the regulations, at www.ada.gov/
2010ADAstandards_index.htm. There are links to
HTML, PDF screen, and PDF print versions of the
2010 Standards and the regulations. (The online
version also includes the 2010 Title III ADA
Standards for the purposes of the Title III
regulations, i.e., 28 CFR part 36, subpart D, and
2004 ADAAG.)
19 28 CFR 35.104.
20 28 CFR 35.151(a) (new construction); 28 CFR
35.151(b) (alterations).
21 See definition of 1991 Standards in the
Definitions of Standards Referenced in this Notice
section of this notice.
22 The 1991 Title II regulations provided that
design, construction, or alterations of facilities in
conformance with UFAS or the 1991 Standards
shall be deemed compliant with the relevant
requirements, except that if the public entity chose
the 1991 Standards, the elevator exemption set forth
at section 4.1.3(5) and section 4.1.6(1)(k) of those
standards did not apply. All references in this
notice to the ‘‘elevator exemption’’ in connection
with the 1991 Standards refer to the exemption
from these specific sections of the 1991 Standards.
The elevator exemption, applicable to certain
private buildings under the 1991 Standards
pursuant to the 1991 Title III ADA regulations,
provided that, with some exceptions, elevators were
not required in facilities that have less than three
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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.23
On September 15, 2010, DOJ
published revisions to the Title II
regulations.24 The revised regulations
became effective March 15, 2011.
Among other things, they provide that
new construction and alterations that
commence on or after March 15, 2012,
must comply with the 2010 Title II ADA
Standards.25
The revised Title II regulations permit
covered entities to use the 2010 Title II
ADA Standards as an alternative to the
1991 Standards without the elevator
exemption or to UFAS for new
construction and alterations that
commenced on or after September 15,
2010, but before March 15, 2012.26 This
approach provides flexibility for
covered entities that comply with
building codes that have many of the
same requirements as the 2010 Title II
ADA Standards.
As emphasized by the revised Title II
regulatory language as well as the
interpretive guidance published with it,
covered entities engaged in physical
construction or alterations during this
period may select only one standard
from among the three options. They may
not rely on some of the requirements
contained in one standard and some of
the requirements contained in the other
standards.27
Education’s Enforcement of DOJ’s Title
II Regulations
Public entities that receive Federal
financial assistance are subject to both
Title II and Section 504, and, as
described previously, Education shares
enforcement responsibilities with DOJ
for Title II because it is the designated
agency for investigation of complaints
and voluntary compliance under Title
II. For new construction and alterations
commenced on or after March 15, 2012,
the 2010 Title II ADA Standards will be
stories or have less than 3,000 square feet per story.
Consequently, although the 1991 Standards
contained an elevator exemption, the Title II
regulations prohibited public entities that chose to
use the 1991 Standards for new construction or
alterations from applying the elevator exemption.
28 CFR 35.151(c).
23 28 CFR 35.151(c).
24 That same day, DOJ also published revisions to
the Title III regulations (75 FR 56236).
25 See definition of the 2010 Standards (2010
Title II ADA Standards) in the Definitions of
Standards Referenced in this Notice section in this
notice.
26 28 CFR 35.151(c)(2).
27 75 FR 56164, 56213 (Sep. 15, 2010).
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used by Education in its enforcement of
the Title II regulations.28
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Education’s Intent To Revise its Section
504 Regulations To Adopt the 2010
Title II ADA 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.29
Following issuance of the final rule, DOJ
reiterated 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.’’ 30 The 2010 Standards were
adopted through formal rulemaking and
were subject to substantial scrutiny and
deliberation, including consideration of
costs and benefits; we intend to
harmonize the corresponding
requirements of Education’s Section 504
regulations with the Title II
requirements. For these reasons, in
coordination with DOJ, we are planning
to initiate rulemaking to address the
relevant standards of Education’s
Section 504 regulations for new
construction and alterations
commencing on or after March 15, 2012,
by proposing an amendment to adopt
the 2010 Title II ADA Standards, in lieu
of UFAS, except that Exception (1) to
Section 206.2.3 would not apply.31
28 28 CFR 35.151(c)(3). In other words, for the
purposes of Title II compliance, a public entity
must comply with the 2010 Title II ADA Standards
as of March 15, 2012, even if UFAS remains an
option under the Section 504 regulations for some
period after this date. In addition, DOJ, which
enforces Title III of the ADA, has advised Education
that as of March 15, 2012, entities subject to Title
III must use the 2010 Title III ADA Standards for
the purposes of Title III ADA compliance.
29 75 FR 56164, 56213 (Sep. 15, 2010) (Because
‘‘construction in accordance with UFAS would no
longer satisfy ADA requirements[,] * * * the
Department [of Justice] would coordinate a
government wide effort to revise Federal agencies’
section 504 regulations to adopt the [2010 Title II
ADA Standards] as the Standard for new
construction and alterations.’’).
30 Memorandum dated March 29, 2011, from
Thomas E. Perez, Assistant Attorney General,
Division of Civil Rights, U.S. DOJ, to Federal
Agency Civil Rights Directors and General
Counsels, titled ‘‘Permitting Entities Covered by the
Federally Assisted Provisions of Section 504 of the
Rehabilitation Act to Use the 2010 ADA Standards
for Accessible Design as an Alternative
Accessibility Standard for New Construction and
Alterations’’ (March 29, 2011 DOJ memorandum.)
This memorandum is available on DOJ’s ADA Web
site at https://www.ada.gov/
504_memo_standards.htm.
31 Section 206.2.3 of the 2010 Title II ADA
Standards requires that an accessible route connect
each story and mezzanine in multi-story facilities,
which means that an elevator is required unless
there is an applicable exception. Exception (1) to
Section 206.2.3 exempts from this requirement
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Applicable Standards Under the
Department of Education’s Section 504
Regulation
Because the only standard specifically
incorporated by reference in Education’s
Section 504 regulations at this time is
UFAS, we have received questions both
about whether, for new construction
and alterations commenced on or after
September 15, 2010, but before March
15, 2012, we will interpret Education’s
Section 504 regulations to deem
conformance with the 2010 Title II ADA
Standards or the 1991 Standards
without the elevator exemption as
compliance with these requirements,
and about which standards will be
permissible on or after March 15, 2012.
DOJ, exercising its Section 504
coordinating authority, has advised all
affected Federal agencies that, until the
agencies revise their Section 504
regulations, they may issue guidance to
recipients that permits, but does not
require, recipients to use the 2010 Title
II ADA Standards as an acceptable
alternative to UFAS for the purposes of
compliance with Section 504.32
Standards Applicable Prior to March
15, 2012
We announce, through this notice,
that we will permit, but not require,
recipients to use the 2010 Standards as
adopted in the Title II regulations,
except that Exception (1) in Section
206.2.3 does not apply, as an acceptable
alternative accessibility standard for
new construction and alterations
commencing on or after September 15,
2010, but before March 15, 2012. In
addition, based on our longstanding
policy, we will also continue to
interpret 34 CFR 104.23(c), which
addresses UFAS and departures from
UFAS, to permit, but not require,
recipients to use the 1991 Standards
without the elevator exemption as an
acceptable alternative accessibility
standard for new construction and
alterations that commence before March
15, 2012. This is also consistent with
the corresponding provision in the Title
II regulations, 28 CFR 35.151(c), which
provides:
If physical construction or alterations
commence on or after September 15, 2010
and before March 15, 2012, then new
construction and alterations subject to this
certain private facilities that are less than three
stories or that have less than 3000 square feet per
story. Because Education’s Section 504 regulations
for new construction and alterations impose the
same obligation on recipients whether they are
public or private entities, the Department is
announcing that it will not permit recipients that
are private entities to avail themselves of Exception
(1).
32 March 29, 2011 DOJ memorandum.
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Sfmt 4700
14975
section may comply with one of the
following: The 2010 Standards, UFAS, or the
1991 Standards except that the elevator
exemption contained at section 4.1.3(5) and
section 4.1.6(1)(k) of the 1991 Standards shall
not apply. Departures from particular
requirements of either standard by 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.33
Thus, for the period spanning
September 15, 2010, to March 14, 2012,
we are deeming compliance with any of
the following three accessibility
standards as compliance with 34 CFR
104.23: (1) The 1991 Standards without
the elevator exemption, (2) the 2010
Title II ADA Standards except that
Exception (1) to Section 206.2.3 does
not apply, or (3) UFAS. We note,
however, that a recipient may select
only one standard from among these
options for purposes of complying with
34 CFR 104.23.
Because under Education’s Section
504 regulations we apply the same
accessibility standards for new
construction and alterations to private
and public recipients, this notice
applies to recipients of Federal financial
assistance from the Department
regardless of whether they are public or
private entities. That is, under the
interpretation announced in this notice,
both private and public recipients may
make the same choice of a standard for
the purposes of compliance with
Education’s Section 504 regulations.
Education wishes to emphasize that
private entities that are covered both by
our Section 504 regulation and by Title
III of the ADA and that choose the 2010
Standards may not rely on the elevator
exception found at Exception (1) to
section 206.2.3 of the 2010 Standards.
Standards Applicable Under Section
504 as of March 15, 2012
In addition, effective March 15, 2012,
because the 1991 Standards will no
longer be an applicable standard under
the ADA for any new construction and
alterations, we are announcing that for
Section 504, recipients will have the
choice of the 2010 Title II ADA
Standards (except that Exception (1) to
Section 206.2.3 does not apply) or
UFAS until Education has revised its
Section 504 regulation to adopt the 2010
Title II ADA Standards. Please refer to
the following table of dates and
accessibility standards for a quick
33 28
E:\FR\FM\14MRR1.SGM
CFR 35.151(c)(2).
14MRR1
14976
Federal Register / Vol. 77, No. 50 / Wednesday, March 14, 2012 / Rules and Regulations
reference to standards for complying
with 34 CFR 104.23.
TABLE OF APPLICABLE STANDARDS FOR COMPLYING WITH 34 CFR 104.23
Date construction or alteration commenced
Between
Between
Between
Between
Applicable standards for complying with 34 CFR 104.23
6/3/77 and 1/17/91 ....................................................................
1/18/91 and 1/25/92 ..................................................................
1/26/92 and 9/14/10 ..................................................................
9/15/10 and 3/14/12 ..................................................................
On or after 3/15/2012 (until the regulations are revised) .........................
Electronic Access to This Document:
The official version of this document is
the document published in the Federal
Register. Free Internet access to the
official edition of the Federal Register
and the Code of Federal Regulations is
available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you
can view this document, as well as all
other documents of this Department
published in the Federal Register, in
text or Adobe Portable Document
Format (PDF). To use PDF you must
have software to open a PDF file. One
option is Adobe Acrobat Reader, which
is available free at the site.
You may also access documents of the
Department published in the Federal
Register by using the article-search
feature at: www.federalregister.gov.
Specifically, through the advanced
search feature at this site, you can limit
your search to documents published by
the Department.
This notice is also available on OCR’s
Web site at: https://www.ed.gov/ocr.
Authority: 29 U.S.C. 794.
Dated: March 8, 2012.
Arne Duncan,
Secretary of Education.
[FR Doc. 2012–6122 Filed 3–13–12; 8:45 am]
pstrozier on DSK7SPTVN1PROD with RULES
BILLING CODE 4000–01–P
34 This
is the ‘‘American National Standards
Specifications for Making Buildings and Facilities
Accessible to, and Usable by, the Physically
Handicapped,’’ published by the American National
Standards Institute, Inc.
VerDate Mar<15>2010
13:21 Mar 13, 2012
Jkt 226001
ANSI A117.1–1961 (R1971).34
UFAS.
UFAS or 1991 Standards without the elevator exception.
UFAS, 1991 Standards without the elevator exception, or 2010 Title II
ADA Standards except that Exception (1) to Section 206.2.3 does
not apply.
UFAS or 2010 Title II ADA Standards except that Exception (1) to Section 206.2.3 does not apply.
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2011–0353; FRL–9644–3]
Approval and Promulgation of
Implementation Plans; Tennessee;
110(a)(1) and (2) Infrastructure
Requirements for the 1997 8-Hour
Ozone National Ambient Air Quality
Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is taking final action to
approve the state implementation plan
(SIP) revision submitted by the State of
Tennessee, through the Tennessee
Department of Environment and
Conservation (TDEC), to demonstrate
that the State meets the requirements of
sections 110(a)(1) and (2) with respect to
sections 110(a)(2)(C) and (J), of the
Clean Air Act (CAA or Act) for the 1997
8-hour ozone national ambient air
quality standards (NAAQS). Section
110(a) of the CAA requires that each
state adopt and submit a state
implementation plan (SIP) for the
implementation, maintenance, and
enforcement of each NAAQS
promulgated by EPA, which is
commonly referred to as an
‘‘infrastructure’’ SIP. TDEC certified that
the Tennessee SIP contains provisions
that ensure the 1997 8-hour ozone
NAAQS are implemented, enforced, and
maintained in Tennessee (hereafter
referred to as ‘‘infrastructure
submission’’). Tennessee’s
infrastructure submission, provided to
EPA on December 14, 2007, and
clarified in a subsequent May 28, 2009,
submission, addressed the required
infrastructure elements for the 1997 8hour ozone NAAQS, however the
subject of this notice is limited to
infrastructure elements 110(a)(2)(C) and
(J). All other applicable Tennessee
SUMMARY:
PO 00000
Frm 00026
Fmt 4700
Sfmt 4700
infrastructure elements will be
addressed in a separate rulemaking.
DATES: Effective Date: This rule will be
effective April 13, 2012.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2011–0353. All documents in the docket
are listed on the www.regulations.gov
Web site. Although listed in the index,
some information is not publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303–8960. EPA
requests that if at all possible, you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 to 4:30
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Nacosta C. Ward, Regulatory
Development Section, Air Planning
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303–8960. The
telephone number is (404) 562–9140.
Ms. Ward can be reached via electronic
mail at ward.nacosta@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. This Action
III. Final Action
IV. Statutory and Executive Order Reviews
E:\FR\FM\14MRR1.SGM
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]]>Agencies
[Federal Register Volume 77, Number 50 (Wednesday, March 14, 2012)]
[Rules and Regulations]
[Pages 14972-14976]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-6122]
=======================================================================
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DEPARTMENT OF EDUCATION
34 CFR Part 104
Discrimination on the Basis of Disability in Federally Assisted
Programs and Activities
AGENCY: Office for Civil Rights, Department of Education.
ACTION: Notice of interpretation.
-----------------------------------------------------------------------
SUMMARY: The Department of Education (Department or Education) provides
notice of its interpretation of Section 504 of the Rehabilitation Act
of 1973 and the Department's implementing regulations, which prohibit
discrimination on the basis of disability in federally assisted
programs and activities (Education's Section 504 regulations). Among
other things, Education's Section 504 regulations address the
accessibility and usability of a recipient's facilities by persons with
disabilities. This document explains that for new construction and
alterations commenced on or after September 15, 2010, we will permit
recipients of Federal financial assistance from the Department to use
an additional alternative accessibility standard in lieu of the Uniform
Federal Accessibility Standards (UFAS) for the purpose of complying
with Section 504. Specifically, we will permit the use of the U. S.
Department of Justice's 2010 ADA Standards for Accessible Design as
defined in the Americans with Disabilities Act (ADA) Title II
regulation (referred to in this notice as the 2010 Title II ADA
Standards) except that Exception (1) to Section 206.2.3 does not apply.
Use of the 2010 Title II ADA Standards will not be required as a means
of compliance with Section 504,
[[Page 14973]]
however, until the Department revises its Section 504 regulations to
formally adopt the 2010 Title II ADA Standards in lieu of UFAS.
DATES: Effective date: March 14, 2012.
FOR FURTHER INFORMATION CONTACT: Arthur Goldman, U.S. Department of
Education, 400 Maryland Avenue SW., Washington, DC 20202-1100.
Telephone: (800) 421-3481, or by email at: OCR@ed.gov.
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll-free, at 1-
800-877-8339.
Individuals with disabilities can obtain this document in an
accessible format (e.g., braille, large print, audiotape, or computer
disc) on request to the contact person listed in this section.
SUPPLEMENTARY INFORMATION:
Background
Section 504
Education implements the requirements of Section 504 of the
Rehabilitation Act of 1973 (Section 504),\1\ which prohibits
discrimination on the basis of disability \2\ in federally assisted
programs or activities, through regulations in 34 CFR part 104.
Education's Section 504 regulations apply to recipients to which the
Department extends Federal financial assistance. Among other things,
Education's Section 504 regulations prohibit 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.\3\
---------------------------------------------------------------------------
\1\ 29 U.S.C. 794.
\2\ In this notice, we use the term ``disability,'' the term
that is currently used by Congress in legislation, in place of the
term ``handicap,'' which was used in the 1973 statute and our 1977
regulations. There is no substantive difference.
\3\ 34 CFR 104.21.
---------------------------------------------------------------------------
Education's Section 504 regulations require that if construction of
a recipient's facility commenced after the effective date of the
regulations (June 3, 1977) \4\ the facility must be designed and
constructed so that it is readily accessible to and usable by persons
with disabilities.\5\ These regulations also require that facility
alterations commenced after June 3, 1977, 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.\6\
---------------------------------------------------------------------------
\4\ The former Department of Health, Education, and Welfare
issued section 504 regulations, including this provision, with an
effective date of June 3, 1977. See 45 CFR part 84 (1978). Upon the
establishment of the Department of Education, 20 U.S.C. 3401 et
seq., we adopted those regulations without substantive change.
\5\ 34 CFR 104.23(a) provides: 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 * * * persons [with disabilities], if
the construction was commenced after the effective date of this
part.
\6\ 34 CFR 104.23(b) provides: Alteration. Each facility, or
part of a facility which is altered by, on behalf of, or for the use
of a recipient after the effective date of this part in a manner
that affects or could affect the usability of the facility or part
of the facility shall, to the maximum extent feasible, be altered in
such manner that the altered portion of the facility is readily
accessible to and usable by * * * persons [with disabilities].
---------------------------------------------------------------------------
For facilities subject to the new construction and alterations
requirements, 34 CFR 104.23(c) has always incorporated by reference an
accessibility design standard, such that construction or alterations in
conformance with that standard would be deemed compliance with
Education's Section 504 regulations.\7\ Under the current regulations,
at 34 CFR 104.23(c), new construction or alterations made in
conformance with the Uniform Federal Accessibility Standards (UFAS) are
deemed to be in compliance with Education's Section 504 regulations,
although a recipient may depart from UFAS when other methods provide
equivalent or greater access to and usability of the facility.\8\
---------------------------------------------------------------------------
\7\ 34 CFR 104.23(c). This section, in its entirety, provides:
Conformance with Uniform Federal Accessibility Standards.
(1) Effective as of January 18, 1991, design, construction, or
alteration of buildings in conformance with sections 3-8 of the
Uniform Federal Accessibility Standards (UFAS) (Appendix A to 41 CFR
subpart 101-19.6) shall be deemed to comply with the requirements of
this section with respect to those buildings. Departures from
particular technical and scoping requirements of UFAS by the use of
other methods are permitted where substantially equivalent or
greater access to and usability of the building is provided.
(2) For the purposes of this section, section 4.1.6(1)(g) of
UFAS shall be interpreted to exempt from the requirements of UFAS
only mechanical rooms and other spaces that, because of their
intended use, will not require accessibility to the public or
beneficiaries or result in the employment or residence therein of
persons with physical [disabilities].
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished
without removing or altering a load-bearing structural member.
\8\ 34 CFR 104.23(c)(1).
---------------------------------------------------------------------------
The adoption of UFAS as an accessibility design standard in
Education's Section 504 regulations occurred in 1991 as part of a joint
rulemaking with other Federal agencies, led by the Department of
Justice (DOJ) pursuant to its coordinating authority for Section 504
under Executive Order 12250. We and the 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,\9\ or among the Section 504
regulations of different Federal agencies.\10\ In addition, after DOJ
adopted the 1991 ADA Accessibility Standards for compliance with Title
II of the ADA, Education permitted entities subject to our Section 504
regulation and the ADA to use the 1991 Standards, except that the
elevator exemption contained at section 4.1.3(5) and section
4.1.6(1)(k) does not apply.\11\
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\9\ The Architectural Barriers Act of 1968 (ABA), 42 U.S.C.
4151-4157, directed four agencies, the General Services
Administration, the Department of Housing and Urban Development, the
Department of Defense, and the United States Postal Service, to
establish accessibility standards for the design, construction, and
alteration of certain Federal and federally funded buildings. The
four agencies adopted UFAS as the ABA standard in 1984.
\10\ 55 FR 52136-37 (1990).
\11\ See ``Major Differences Between the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities and the Uniform Federal Accessibility Standards,'' Office
for Civil Rights (OCR), U.S. Department of Education, September
1993, at 4. This technical assistance handout was distributed as an
attachment to a September 17, 1993, memorandum from Norma V. Cantu,
Assistant Secretary for Civil Rights, to OCR Senior Staff, with
instructions that it was designed to accompany technical-assistance
presentations on the issue of accessibility and that OCR staff
should disseminate copies to interested persons.
---------------------------------------------------------------------------
Title II Regulations
Title II of the ADA prohibits discrimination on the basis of
disability by public entities. Public educational institutions that are
subject to Education's Section 504 regulations because they receive
Federal financial assistance from us are also subject to the Title II
regulations because they are public entities (e.g., school districts,
State educational agencies, public institutions of vocational
education, and public colleges and universities). Pursuant to a
delegation by the Attorney General of the United States, Education
shares in the enforcement of Title II by virtue of being the designated
agency to investigate complaints and seek voluntary compliance under
Title II for certain types of public educational entities.\12\ Thus,
for those entities, Education enforces both Section 504
[[Page 14974]]
and Title II, as well as the implementing regulations of both
statutes.\13\
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\12\ Education is the designated agency for public elementary
and secondary education systems and institutions, institutions of
higher education and vocational education (other than schools of
medicine, dentistry, nursing, and other health-related schools), and
libraries. 28 CFR 35.190(b)(2).
\13\ DOJ enforces Title III of the ADA and has advised Education
that private educational institutions that are subject to
Education's Section 504 regulations are in almost all cases also
subject to Title III.
---------------------------------------------------------------------------
Definitions of Standards Referenced in This Notice
In this notice, we explain our interpretation of 34 CFR 104.23 as
it relates to new construction and alterations commenced on or after
September 15, 2010. As described more fully later in this notice, our
purpose is to inform all interested parties that for new construction
and alterations commenced after that date, we are interpreting
Education's current Section 504 regulations to permit use of
accessibility standards that are consistent with DOJ's Title II
regulations until Education's Section 504 regulations are revised.\14\
DOJ first issued the Title II regulations in 1991,\15\ and published
revisions to the regulations on September 15, 2010. These revised
regulations included modifications to the Title II ADA
nondiscrimination requirements and they adopt revised ADA accessibility
standards (the 2010 Title II ADA Standards). Before discussing
Education's decision to deem the 2010 Title II ADA Standards as an
acceptable alternative to UFAS, we first introduce and define the
various accessibility standards referenced in the Title II regulations
or Education's Section 504 regulations that are used for designing,
constructing, or altering a facility:
---------------------------------------------------------------------------
\14\ 34 CFR 104.23(c). 42 U.S.C. 12131 et seq.; 28 CFR part 35.
The Title II regulations and supplementary information were
published in the Federal Register on September 15, 2010 (75 FR
56164-56236). DOJ's ADA Web site contains links to HTML and PDF
versions at www.ada.gov/regs2010/ADAregs2010.htm.
\15\ 28 CFR part 35 (1992). DOJ also issued regulations in 1991
under Title III of the ADA, 42 U.S.C. 12181 et seq., 28 CFR part 36
(1992), that prohibit discrimination on the basis of disability by,
among other entities, private educational institutions. As
previously noted, DOJ enforces Title III of the ADA.
---------------------------------------------------------------------------
UFAS means the Uniform Federal Accessibility Standards. Education's
Section 504 regulations reference sections 3 through 8 of UFAS.\16\
---------------------------------------------------------------------------
\16\ 34 CFR 104.23(c).
---------------------------------------------------------------------------
1991 Standards means the requirements in the ADA Standards for
Accessible Design originally published as Appendix A to 28 CFR part 36
on July 26, 1991, and republished as Appendix D to 28 CFR part 36 on
September 15, 2010.\17\
---------------------------------------------------------------------------
\17\ 28 CFR 35.104. These standards were based on the ADA
Accessibility Guidelines (ADAAG) published by the Access Board
(Architectural and Transportation Barriers Compliance Board) in 1991
(1991 ADAAG). DOJ's ADA Web site contains links to HTML and PDF
versions of the 1991 Standards at www.ada.gov/stdspdf.htm.
---------------------------------------------------------------------------
2010 Standards as defined in the Title II regulation, means the
2010 ADA Standards for Accessible Design, which consist of the 2004
ADAAG and the requirements contained in 28 CFR 35.151.\18\ In this
notice, these standards are referred to as the ``2010 Title II ADA
Standards.''
---------------------------------------------------------------------------
\18\ 28 CFR 35.104. DOJ provides an online compilation of the
revised ADA regulations that includes the 2010 Standards, guidance
about the 2010 Standards, and the Title II and Title III regulations
and the interpretive guidance accompanying the regulations, at
www.ada.gov/2010ADAstandards_index.htm. There are links to HTML,
PDF screen, and PDF print versions of the 2010 Standards and the
regulations. (The online version also includes the 2010 Title III
ADA Standards for the purposes of the Title III regulations, i.e.,
28 CFR part 36, subpart D, and 2004 ADAAG.)
---------------------------------------------------------------------------
2004 ADAAG means the requirements set forth in appendices B and D
to 36 CFR part 1191 (2009).\19\
---------------------------------------------------------------------------
\19\ 28 CFR 35.104.
---------------------------------------------------------------------------
Accessibility Standards in Title II Regulations Issued by DOJ
DOJ's Title II regulations prohibit exclusion from participation in
or the denial of the benefits of services, programs, or activities, or
other discrimination because a public entity's facilities are
inaccessible to or unusable by individuals with disabilities. The Title
II regulations provide that design, construction, and alterations of
facilities commenced after January 26, 1992, must be done in such a
manner that the facility or part of the facility being built or altered
is readily accessible to and usable by individuals with
disabilities.\20\
---------------------------------------------------------------------------
\20\ 28 CFR 35.151(a) (new construction); 28 CFR 35.151(b)
(alterations).
---------------------------------------------------------------------------
The Title II regulations issued in 1991 (which have been revised in
relevant part, as discussed later in this section) incorporated by
reference two sets of standards for new construction and alterations:
UFAS and the 1991 Standards \21\ without the ``elevator exemption.''
\22\ The 1991 Title II 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.\23\
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\21\ See definition of 1991 Standards in the Definitions of
Standards Referenced in this Notice section of this notice.
\22\ The 1991 Title II regulations provided that design,
construction, or alterations of facilities in conformance with UFAS
or the 1991 Standards shall be deemed compliant with the relevant
requirements, except that if the public entity chose the 1991
Standards, the elevator exemption set forth at section 4.1.3(5) and
section 4.1.6(1)(k) of those standards did not apply. All references
in this notice to the ``elevator exemption'' in connection with the
1991 Standards refer to the exemption from these specific sections
of the 1991 Standards. The elevator exemption, applicable to certain
private buildings under the 1991 Standards pursuant to the 1991
Title III ADA regulations, provided that, with some exceptions,
elevators were not required in facilities that have less than three
stories or have less than 3,000 square feet per story. Consequently,
although the 1991 Standards contained an elevator exemption, the
Title II regulations prohibited public entities that chose to use
the 1991 Standards for new construction or alterations from applying
the elevator exemption. 28 CFR 35.151(c).
\23\ 28 CFR 35.151(c).
---------------------------------------------------------------------------
On September 15, 2010, DOJ published revisions to the Title II
regulations.\24\ The revised regulations became effective March 15,
2011. Among other things, they provide that new construction and
alterations that commence on or after March 15, 2012, must comply with
the 2010 Title II ADA Standards.\25\
---------------------------------------------------------------------------
\24\ That same day, DOJ also published revisions to the Title
III regulations (75 FR 56236).
\25\ See definition of the 2010 Standards (2010 Title II ADA
Standards) in the Definitions of Standards Referenced in this Notice
section in this notice.
---------------------------------------------------------------------------
The revised Title II regulations permit covered entities to use the
2010 Title II ADA Standards as an alternative to the 1991 Standards
without the elevator exemption or to UFAS for new construction and
alterations that commenced on or after September 15, 2010, but before
March 15, 2012.\26\ This approach provides flexibility for covered
entities that comply with building codes that have many of the same
requirements as the 2010 Title II ADA Standards.
---------------------------------------------------------------------------
\26\ 28 CFR 35.151(c)(2).
---------------------------------------------------------------------------
As emphasized by the revised Title II regulatory language as well
as the interpretive guidance published with it, covered entities
engaged in physical construction or alterations during this period may
select only one standard from among the three options. They may not
rely on some of the requirements contained in one standard and some of
the requirements contained in the other standards.\27\
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\27\ 75 FR 56164, 56213 (Sep. 15, 2010).
---------------------------------------------------------------------------
Education's Enforcement of DOJ's Title II Regulations
Public entities that receive Federal financial assistance are
subject to both Title II and Section 504, and, as described previously,
Education shares enforcement responsibilities with DOJ for Title II
because it is the designated agency for investigation of complaints and
voluntary compliance under Title II. For new construction and
alterations commenced on or after March 15, 2012, the 2010 Title II ADA
Standards will be
[[Page 14975]]
used by Education in its enforcement of the Title II regulations.\28\
---------------------------------------------------------------------------
\28\ 28 CFR 35.151(c)(3). In other words, for the purposes of
Title II compliance, a public entity must comply with the 2010 Title
II ADA Standards as of March 15, 2012, even if UFAS remains an
option under the Section 504 regulations for some period after this
date. In addition, DOJ, which enforces Title III of the ADA, has
advised Education that as of March 15, 2012, entities subject to
Title III must use the 2010 Title III ADA Standards for the purposes
of Title III ADA compliance.
---------------------------------------------------------------------------
Education's Intent To Revise its Section 504 Regulations To Adopt the
2010 Title II ADA 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.\29\ Following
issuance of the final rule, DOJ reiterated 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.'' \30\ The 2010 Standards were adopted
through formal rulemaking and were subject to substantial scrutiny and
deliberation, including consideration of costs and benefits; we intend
to harmonize the corresponding requirements of Education's Section 504
regulations with the Title II requirements. For these reasons, in
coordination with DOJ, we are planning to initiate rulemaking to
address the relevant standards of Education's Section 504 regulations
for new construction and alterations commencing on or after March 15,
2012, by proposing an amendment to adopt the 2010 Title II ADA
Standards, in lieu of UFAS, except that Exception (1) to Section
206.2.3 would not apply.\31\
---------------------------------------------------------------------------
\29\ 75 FR 56164, 56213 (Sep. 15, 2010) (Because ``construction
in accordance with UFAS would no longer satisfy ADA requirements[,]
* * * the Department [of Justice] would coordinate a government wide
effort to revise Federal agencies' section 504 regulations to adopt
the [2010 Title II ADA Standards] as the Standard for new
construction and alterations.'').
\30\ Memorandum dated March 29, 2011, from Thomas E. Perez,
Assistant Attorney General, Division of Civil Rights, U.S. DOJ, to
Federal Agency Civil Rights Directors and General Counsels, titled
``Permitting Entities Covered by the Federally Assisted Provisions
of Section 504 of the Rehabilitation Act to Use the 2010 ADA
Standards for Accessible Design as an Alternative Accessibility
Standard for New Construction and Alterations'' (March 29, 2011 DOJ
memorandum.) This memorandum is available on DOJ's ADA Web site at
https://www.ada.gov/504_memo_standards.htm.
\31\ Section 206.2.3 of the 2010 Title II ADA Standards requires
that an accessible route connect each story and mezzanine in multi-
story facilities, which means that an elevator is required unless
there is an applicable exception. Exception (1) to Section 206.2.3
exempts from this requirement certain private facilities that are
less than three stories or that have less than 3000 square feet per
story. Because Education's Section 504 regulations for new
construction and alterations impose the same obligation on
recipients whether they are public or private entities, the
Department is announcing that it will not permit recipients that are
private entities to avail themselves of Exception (1).
---------------------------------------------------------------------------
Applicable Standards Under the Department of Education's Section 504
Regulation
Because the only standard specifically incorporated by reference in
Education's Section 504 regulations at this time is UFAS, we have
received questions both about whether, for new construction and
alterations commenced on or after September 15, 2010, but before March
15, 2012, we will interpret Education's Section 504 regulations to deem
conformance with the 2010 Title II ADA Standards or the 1991 Standards
without the elevator exemption as compliance with these requirements,
and about which standards will be permissible on or after March 15,
2012. DOJ, exercising its Section 504 coordinating authority, has
advised all affected Federal agencies that, until the agencies revise
their Section 504 regulations, they may issue guidance to recipients
that permits, but does not require, recipients to use the 2010 Title II
ADA Standards as an acceptable alternative to UFAS for the purposes of
compliance with Section 504.\32\
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\32\ March 29, 2011 DOJ memorandum.
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Standards Applicable Prior to March 15, 2012
We announce, through this notice, that we will permit, but not
require, recipients to use the 2010 Standards as adopted in the Title
II regulations, except that Exception (1) in Section 206.2.3 does not
apply, as an acceptable alternative accessibility standard for new
construction and alterations commencing on or after September 15, 2010,
but before March 15, 2012. In addition, based on our longstanding
policy, we will also continue to interpret 34 CFR 104.23(c), which
addresses UFAS and departures from UFAS, to permit, but not require,
recipients to use the 1991 Standards without the elevator exemption as
an acceptable alternative accessibility standard for new construction
and alterations that commence before March 15, 2012. This is also
consistent with the corresponding provision in the Title II
regulations, 28 CFR 35.151(c), which provides:
If physical construction or alterations commence on or after
September 15, 2010 and before March 15, 2012, then new construction
and alterations subject to this section may comply with one of the
following: The 2010 Standards, UFAS, or the 1991 Standards except
that the elevator exemption contained at section 4.1.3(5) and
section 4.1.6(1)(k) of the 1991 Standards shall not apply.
Departures from particular requirements of either standard by 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.\33\
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\33\ 28 CFR 35.151(c)(2).
Thus, for the period spanning September 15, 2010, to March 14,
2012, we are deeming compliance with any of the following three
accessibility standards as compliance with 34 CFR 104.23: (1) The 1991
Standards without the elevator exemption, (2) the 2010 Title II ADA
Standards except that Exception (1) to Section 206.2.3 does not apply,
or (3) UFAS. We note, however, that a recipient may select only one
standard from among these options for purposes of complying with 34 CFR
104.23.
Because under Education's Section 504 regulations we apply the same
accessibility standards for new construction and alterations to private
and public recipients, this notice applies to recipients of Federal
financial assistance from the Department regardless of whether they are
public or private entities. That is, under the interpretation announced
in this notice, both private and public recipients may make the same
choice of a standard for the purposes of compliance with Education's
Section 504 regulations. Education wishes to emphasize that private
entities that are covered both by our Section 504 regulation and by
Title III of the ADA and that choose the 2010 Standards may not rely on
the elevator exception found at Exception (1) to section 206.2.3 of the
2010 Standards.
Standards Applicable Under Section 504 as of March 15, 2012
In addition, effective March 15, 2012, because the 1991 Standards
will no longer be an applicable standard under the ADA for any new
construction and alterations, we are announcing that for Section 504,
recipients will have the choice of the 2010 Title II ADA Standards
(except that Exception (1) to Section 206.2.3 does not apply) or UFAS
until Education has revised its Section 504 regulation to adopt the
2010 Title II ADA Standards. Please refer to the following table of
dates and accessibility standards for a quick
[[Page 14976]]
reference to standards for complying with 34 CFR 104.23.
Table of Applicable Standards for Complying With 34 CFR 104.23
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Date construction or alteration Applicable standards for
commenced complying with 34 CFR 104.23
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Between 6/3/77 and 1/17/91............. ANSI A117.1-1961 (R1971).\34\
Between 1/18/91 and 1/25/92............ UFAS.
Between 1/26/92 and 9/14/10............ UFAS or 1991 Standards without
the elevator exception.
Between 9/15/10 and 3/14/12............ UFAS, 1991 Standards without
the elevator exception, or
2010 Title II ADA Standards
except that Exception (1) to
Section 206.2.3 does not
apply.
On or after 3/15/2012 (until the UFAS or 2010 Title II ADA
regulations are revised). Standards except that
Exception (1) to Section
206.2.3 does not apply.
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\34\ This is the ``American National Standards Specifications
for Making Buildings and Facilities Accessible to, and Usable by,
the Physically Handicapped,'' published by the American National
Standards Institute, Inc.
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Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. Free
Internet access to the official edition of the Federal Register and the
Code of Federal Regulations is available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you can view this document, as well
as all other documents of this Department published in the Federal
Register, in text or Adobe Portable Document Format (PDF). To use PDF
you must have software to open a PDF file. One option is Adobe Acrobat
Reader, which is available free at the site.
You may also access documents of the Department published in the
Federal Register by using the article-search feature at:
www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
This notice is also available on OCR's Web site at: https://www.ed.gov/ocr.
Authority: 29 U.S.C. 794.
Dated: March 8, 2012.
Arne Duncan,
Secretary of Education.
[FR Doc. 2012-6122 Filed 3-13-12; 8:45 am]
BILLING CODE 4000-01-P
