Discrimination on the Basis of Disability in Federally Assisted Programs and Activities, 67384-67396 [2014-26543]

Agencies

• National Aeronautics and Space Administration

[Federal Register Volume 79, Number 219 (Thursday, November 13, 2014)]
[Proposed Rules]
[Pages 67384-67396]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-26543]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

14 CFR Part 1251

[Document Number NASA-2014-0011]
RIN 2700-AD85


Discrimination on the Basis of Disability in Federally Assisted 
Programs and Activities

AGENCY: National Aeronautics and Space Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The National Aeronautics and Space Administration (NASA) is 
proposing to amend its rules implementing Section 504 of the 
Rehabilitation Act of 1973 (section 504), which prohibits 
discrimination on the basis of disability in programs, services, and 
activities by recipients of Federal financial assistance from NASA as 
well as those programs, services, and activities conducted by NASA. The 
revisions to this rule are part of NASA's retrospective plan under EO 
13563 completed in August 2011.

DATES: Submit comments on or before December 15, 2014.

ADDRESSES: Comments must be identified with RIN 2700-AD85 and may be 
sent to NASA via the Federal E-Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Please note that NASA will post all comments on the internet 
with changes, including any personal information provided.
    NASA's full plan can be accessed at: https://www.nasa.gov/open/.

FOR FURTHER INFORMATION CONTACT: Robert Cosgrove, (202) 358-0446.

SUPPLEMENTARY INFORMATION:

Background

    In this rulemaking, NASA is proposing to amend its section 504 
regulations to incorporate changes to the definition of disability 
required by the Americans with Disabilities Act (ADA) Amendments Act of 
2008, include an affirmative statement of the longstanding requirement 
for reasonable accommodations in programs, services, and activities, 
include a definition of direct threat and a provision describing the 
parameters of the existing direct threat defense to a claim of 
discrimination, clarify the existing obligation to provide auxiliary 
aids and services to qualified individuals with disabilities, update 
the methods of communication that recipients may use to inform program 
beneficiaries of their obligation to comply with section 504 to reflect 
changes in technology, adopt updated accessibility standards applicable 
to the design, construction, and alteration of buildings and 
facilities, establish time periods for compliance with these updated 
accessibility standards, provide NASA with access to recipient data and 
records to determine compliance with section 504, and make 
administrative updates to correct titles.
    NASA is also proposing to amend its regulation to incorporate 
changes required by the Rehabilitation Act Amendments of 1992 (1992 
Amendments) by revising current sections 1251.2--Employment Practices 
(Federally Assisted Programs) and 1251.540--Employment (Federally 
Conducted Programs) and instead referencing the EEOC's ADA title I 
regulation. The proposed rule also updates outdated terminology and 
references that currently exist in Part 1251 and changes the word 
``handicapped'' and similar variations of that word that appear 
throughout Part 1251, replacing it with ``people first'' language 
(e.g., ``individuals with disabilities'') consistent with the 1992 
Amendments.

Section 504

    NASA implements the requirements of Section 504 of the 
Rehabilitation Act of 1973 (section 504), which prohibits 
discrimination on the basis of disability in Federally conducted and 
assisted programs or activities, through its regulation in Part 1251. 
NASA's section 504 regulation applies to recipients to whom the Agency 
extends Federal financial assistance, such as research, education and 
training grants, and cooperative agreements, as well as programs, 
services, and activities conducted by NASA. NASA's section 504 
regulation at Sec.  1251.103 prohibits denial of the benefits of, 
exclusion from participation in, or other discrimination against 
qualified individuals with disabilities in programs or activities 
because a recipient's facilities are inaccessible to or unusable by 
persons with disabilities. Many of the entities that receive financial 
assistance from NASA are also covered by Title II of the ADA (title 
II), which prohibits discrimination on the basis of disability by 
public entities (i.e., state and local governments and their agencies) 
or Title III of the ADA (title III), which prohibits discrimination on 
the basis of disability by: (1) Public accommodations (i.e., private 
entities that own, operate, lease, or lease to places of public 
accommodation); (2) newly constructed and altered commercial 
facilities; and (3) private entities that offer certain examinations 
and courses related to educational and occupational certification.

Definition of Disability--ADA Amendments Act of 2008

    The ADA Amendments Act of 2008 (the ADA Amendments Act) was signed 
into law in September 2008 and became effective on January 1, 2009. 
Congress enacted the ADA Amendments Act to revise the ADA definition of 
disability in order to ensure that this definition is broadly construed 
and applied without extensive analysis and to supersede Supreme Court 
decisions that had too narrowly interpreted the ADA's definition of a 
disability. The ADA Amendments Act not only amended the definition of 
disability applicable to the ADA but also amended the Rehabilitation 
Act of 1973 to conform the section 504 definition of disability at 29 
U.S.C. 705(20)(B) to the revised ADA definition. In this rulemaking, 
NASA is proposing to amend its section 504

[[Page 67385]]

regulation to implement these revised requirements. NASA intends these 
proposed regulatory changes to be consistent with the Department of 
Justice's (DOJ's) proposed changes to its title II regulation to 
incorporate the requirements of the ADA Amendments Act published on 
January 30, 2014 [79 FR 4839].
    Due to the changes that the ADA Amendments Act made to the 
application of the definition of disability, participants in 
recipients' programs, services, and activities who, in the past decade, 
may not have been determined to have a disability under section 504 and 
title II may now in fact be found to have a disability under those 
laws. Section 504 and the ADA define disability as (1) a physical or 
mental impairment that substantially limits a major life activity; (2) 
a record of such impairment; or (3) being regarded as having such an 
impairment [29 U.S.C. 705(9)(B); 42 U.S.C. 12102(1)]. The ADA 
Amendments Act does not alter these three elements of the definition of 
disability in the ADA and section 504, but it significantly changes how 
the term ``disability'' is to be interpreted and adds important rules 
of construction to inform that interpretation. Specifically, Congress 
directed that the definition of disability shall be construed broadly 
and that the determination of whether an individual has a disability 
should not demand extensive analysis [42 U.S.C. 12102].
    NASA's proposed revisions to the definition of disability are all 
based on specific provisions in the ADA Amendments Act or specific 
language in the legislative history. Since the ADA Amendments Act does 
not change the meaning of the term ``physical or mental impairment,'' 
NASA is retaining the general regulatory definitions for this term with 
only minor modifications consistent with DOJ's proposed revisions to 
its Title II ADA regulations. First, NASA is proposing to add examples 
of two new body systems--the immune system and the circulatory system--
that may be affected by a physical impairment. See 14 CFR 
1251.102(h)(2)(A). In addition, ``dyslexia'' will be added to 14 CFR 
1251.102(h)(2)(A) as one example of a specific learning disability that 
falls within the meaning of the phrase ``physical or mental 
impairment.''
    The proposed revisions also expand the definition of ``major life 
activities'' by providing a non-exhaustive list of major life 
activities and specifically including the operation of major bodily 
functions. Prior to the ADA Amendments Act, section 504 did not define 
``major life activities,'' leaving delineation of illustrative examples 
to agency regulations. The definition of ``disability'' in the NASA's 
current section 504 regulations states that ``[m]ajor life activities 
means functions such as caring for one's self, performing manual tasks, 
walking, seeing, hearing, speaking, breathing, learning, and working.'' 
See 14 CFR 1251.102(h)(2)(ii). The ADA, as amended, incorporates into 
the statutory language a non-exhaustive list of major life activities 
that includes, but is not limited to, ``caring for oneself, performing 
manual tasks, seeing, hearing, eating, sleeping, walking, standing, 
lifting, bending, speaking, breathing, learning, reading, 
concentrating, thinking, communicating, and working.'' See 42 U.S.C. 
12102(2)(A). This list reflects Congress's concern that courts were 
interpreting the term ``major life activities'' more narrowly than 
Congress intended. See 42 U.S.C. 12101(b)(4). In Sec. Sec.  1251.102(h) 
and 1251.503(h), NASA proposes to revise its section 504 regulatory 
definitions of disability to incorporate the statutory examples as well 
as to provide additional examples included in the EEOC title I final 
regulation--reaching, sitting, and interacting with others. See 29 CFR 
1630.2(i)(1)(i).
    These proposed revisions also add rules of construction that should 
be applied when determining whether an impairment substantially limits 
a major life activity. The rules of construction state the following:

--That the term ``substantially limits'' shall be construed broadly in 
favor of expansive coverage, to the maximum extent permitted by the 
terms of the ADA;
--that an impairment is a disability if it substantially limits the 
ability of an individual to perform a major life activity as compared 
to most people in the general population;
--that the primary issue in a case brought under the ADA should be 
whether the covered entity has complied with its obligations and 
whether discrimination has occurred, not the extent to which the 
individual's impairment substantially limits a major life activity;
--that in making the individualized assessment required by the ADA, the 
term ``substantially limits'' shall be interpreted and applied to 
require a degree of functional limitation that is lower than the 
standard for ``substantially limits'' applied prior to the ADA 
Amendments Act;
--that the comparison of an individual's performance of a major life 
activity to the performance of the same major life activity by most 
people in the general population usually will not require scientific, 
medical, or statistical evidence;
--that mitigating measures other than ``ordinary eyeglasses or contact 
lenses'' shall not be considered in assessing whether an individual has 
a ``disability'' (mitigating measures include medications, prosthetic 
devices, assistive devices, or learned behavioral or adaptive 
neurological modifications that an individual may use to eliminate or 
reduce the effects of an impairment);
--that an impairment that is episodic or in remission is a disability 
if it would substantially limit a major life activity when active; and
--that an impairment that substantially limits one major life activity 
need not substantially limit other major life activities in order to be 
considered a substantially limiting impairment.

    In keeping with the ADA Amendments Act, the proposed rule provides 
that if a person seeks to establish coverage under section 504 using 
the ``regarded as'' prong of the disability definition, that individual 
need only establish that he or she has been subjected to an act 
prohibited by section 504 because of an actual or perceived physical or 
mental impairment. An individual will not be ``regarded as'' a person 
with a disability if the impairment is both transitory (meaning that it 
has an actual or expected duration of six months or less) and minor. 
ADA Amendments Act, section 4(a) (codified as amended at 42 U.S.C. 
12102).

Definition of Auxiliary Aids and Services

    Although NASA's existing section 504 Federally assisted regulation 
referenced the provision of auxiliary aids,\1\ it did not include a 
definition. The proposed regulation includes a definition for auxiliary 
aids and services, which is consistent with the definition used in the 
ADA title II regulation at 28 CFR 35.104.
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    \1\ Although the current regulation references ``auxiliary 
aids,'' the term has always been understood to mean ``auxiliary aids 
and services,'' and the revised regulation references them 
correctly.
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Employment

    NASA proposes to revise Section 1251.2--Employment Practices 
(Federally Assisted Programs) and Section 1251.540--Employment 
(Federally Conducted Programs) to conform to the Rehabilitation Act 
Amendments of 1992 (Pub. L. 102-569, sec. 506) which amended title V to 
make

[[Page 67386]]

the same employment standards set forth in title I of the ADA apply to 
employment discrimination apply under section 504. As such, the 
proposed rule deletes the existing requirements related to 
discriminatory employment practices and references the standards 
applied under Title I of the Americans with Disabilities Act of 1990 
(42 U.S.C. 12111 et seq.) and to the extent such sections relate to 
employment, the provisions of sections 501 through 504 and 510 of the 
Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 
12210), and the Equal Employment Opportunity Commission's ADA title I 
regulation at 29 CFR Sec.  1630, as amended.
    NASA is also proposing to clarify its role in the processing and 
coordination of complaints alleging discrimination by its recipients, 
Title I of the ADA (title I) prohibits discrimination against 
individuals with disabilities employed in a business that has fifteen 
or more employees. Title I is enforced by the United States Equal 
Employment Opportunity Commission (EEOC) and is the designated Federal 
agency for the processing and adjudication of all complaints filed 
under title I. Many of the Agency's recipients may fall under the 
jurisdiction of title I and may also file a complaint alleging 
discrimination under section 504. NASA has authority to receive 
complaints of discrimination and has developed procedures to identify 
when NASA has jurisdiction to process such complaints or when they must 
be referred to the EEOC or DOJ for processing. In order to avoid 
duplication of investigative and enforcement efforts, NASA will process 
and coordinate any complaints filed under this Part in accordance with 
the Equal Employment Opportunity Commission (EEOC) procedures set forth 
in 29 CFR part 1640 and the Department of Justice (DOJ) procedures set 
forth at 28 CFR part 37 (Procedures for Coordinating the Investigation 
of Complaints or Charges of Employment Discrimination Based on 
Disability Subject to the Americans with Disabilities Act and Section 
504 of the Rehabilitation Act of 1973).
    NASA is also proposing to clarify its role in the processing and 
adjudication of section 504 complaints in its Federally conducted 
programs.

Provision of Auxiliary Aids and Services

    NASA's current section 504 Federally assisted regulation at Sec.  
1251.103(b)(3) provides that ``[r]ecipients shall take appropriate 
steps to ensure that no handicapped individual is denied the benefits 
of, excluded from participation in, or otherwise subjected to 
discrimination in any program or activity receiving Federal financial 
assistance because of the absence of auxiliary aids for individuals 
with impaired sensory, manual, or speaking skills.''
    This Notice of Proposed Rule Making (NPRM) proposes to clarify this 
existing obligation by providing affirmative language explaining this 
obligation. Similar language is already included in NASA's Federally 
conducted regulation at Sec.  1251.560. (Communications)

Notice of Recipient Obligations To Comply With Section 504

    NASA's section 504 regulations at Sec.  1251.107(a) require a 
recipient that employs 15 or more persons to take appropriate initial 
and continuing steps to notify participants, beneficiaries, applicants, 
and employees, including those with or hearing and vision disabilities, 
and unions or professional organizations holding collective bargaining 
or professional agreements with the recipient that it does not 
discriminate on the basis of disability in violation of section 504 and 
this part. The notification shall state, where appropriate, that the 
recipient does not discriminate in admission or access to, or treatment 
or employment in, its programs or activities. The notification shall 
also include an identification of the responsible employee designated 
to coordinate the recipient's efforts to comply with section 504 
pursuant to Sec.  1251.106(a). The regulation requires the recipient to 
make the initial notification required by this paragraph within 90 days 
of the effective date of this part. This regulation also delineates the 
methods of initial and continuing notification to include ``the posting 
of notices, publication in newspapers and magazines, placement of 
notices in recipient's publication, and distribution of memoranda or 
other written communications.'' NASA recognizes that the methods by 
which a recipient communicates with interested persons has changed 
significantly since these regulations were promulgated and this 
regulation as currently written does not reflect the current and future 
state of information dissemination. With the advent of broad 
application of the Internet and the Web, as well as electronic 
publishing, electronic mail, text messaging, and social media 
platforms, NASA has determined that the regulation does not adequately 
include electronic methods of communication. Furthermore, NASA's grant 
recipients currently rely on their Web sites, email, text messaging, 
and social media to communicate with and provide information to the 
beneficiaries of its programs, services, and activities. Many of the 
publications that were available in print such as pamphlets, brochures, 
maps, course catalogs, policies, and procedures are now posted on the 
recipients' Web sites and can be printed or downloaded by the 
interested person viewing the Web site. In revising the regulation to 
include electronic communications, NASA is also providing its grant 
recipients the ability to provide this information in a more cost-
effective and expeditious manner than by relying on printed media. 
Information or programs provided to the public on recipient's Web sites 
should be provided in an accessible format in order to ensure equal 
access to the recipient's programs, services, and activities.

Accessibility Standards for New Construction

    NASA's section 504 regulations at Sec.  1251.302(c) require that if 
construction of a recipient's facility commenced after the effective 
date of the regulations (January 18, 1991), the facility must be 
designed and constructed so that it is readily accessible to and usable 
by persons with disabilities. These regulations also require that 
facility alterations commenced after January 18, 1991, that affect or 
may affect the facility's usability must be accomplished so that, to 
the maximum extent feasible, the altered portion of the facility is 
readily accessible and usable by persons with disabilities.
    For facilities subject to the new construction and alterations 
requirements, the NASA regulation at Sec.  1251.302(c) has always 
incorporated by reference an accessibility design standard, such that 
construction or alterations in conformance with that standard would be 
deemed in compliance with NASA's section 504 regulation. Under the 
current regulation, new construction or alterations made in conformance 
with the Uniform Federal Accessibility Standards (UFAS) are deemed to 
be in compliance with NASA's section 504 regulation, although a 
recipient may depart from UFAS when other methods provide equivalent or 
greater access to and usability of the facility.
    The adoption of UFAS as an accessibility design standard in NASA's 
section 504 regulation occurred in 1991 as part of a joint rulemaking 
with other Federal agencies, led by the DOJ pursuant to its 
coordinating authority for section 504 under Executive Order 12250. [51 
FR 26862 July 28, 1986, as amended and 55 FR 52138, 52140, December 19, 
1990]. NASA and the

[[Page 67387]]

other participating agencies adopted UFAS (effective January 18, 1991) 
to diminish the possibility that some recipients of Federal financial 
assistance would face conflicting enforcement standards either between 
section 504 and the Architectural Barriers Act of 1968, or among the 
section 504 regulations of different Federal agencies. [55 FR 52136-37 
(1990)]

Accessibility Standards in the ADA Regulations Issued by DOJ

    DOJ's 1991 title II ADA regulation incorporated by reference two 
sets of standards for new construction and alterations: UFAS and the 
1991 ADA Standards for Accessible Design (1991 Standards) except that 
the elevator exemption contained at sections 4.1.3(5) and 4.1.6(1)(k) 
of the 1991 Standards did not apply. The 1991 title II ADA regulations 
also permitted departures from the particular requirements of either 
standard by the use of other methods when it was clearly evident that 
equivalent access to the facility or part of the facility is thereby 
provided. UFAS was included as an option for title II entities because 
it was deemed the accessibility standard under existing section 504 
accessibility regulations. UFAS was not an accessibility option under 
the ADA for title III entities, even if they were also subject to an 
agency section 504 regulation.
    On September 15, 2010, DOJ published revised title II and title III 
ADA regulations that included the adoption of revised accessibility 
standards, the 2010 ADA Standards for Accessible Design (2010 
Standards). [75 FR 56164]. The 2010 Standards were based on the 2004 
ADA Accessibility Guidelines adopted by the United States Access Board 
in 2004. (36 CFR parts 1190 and 1191). The 2010 Standards, which now 
supersede the 1991 Standards, were adopted by DOJ through formal 
rulemaking and were subject to substantial scrutiny and deliberation, 
including consideration of costs and benefits. Compliance with the 2010 
Standards was required for all new construction and alterations that 
commenced on or after March 15, 2012. [75 FR 56164, 56182 (Sept. 15, 
2010)]. As of March 15, 2012, UFAS was no longer an option for 
compliance with title II.

NASA's Revisions to Its Section 504 Federally Assisted Regulations To 
Adopt the 2010 Standards

    In the preamble to the final title II regulation, DOJ stated that 
Federal agencies that extend Federal financial assistance should revise 
their section 504 regulations to adopt the 2010 Standards as section 
504 standards for new construction and alterations [75 FR 56164, 56213 
Sep. 15, 2010]. DOJ also stated its intent to work with Federal 
agencies ``to revise their section 504 regulations in the near future 
to adopt the 2010 Standards as the appropriate accessibility standard 
for their recipients.'' In coordination with DOJ, we are adopting the 
2010 Standards as set forth in 28 CFR part 35, in lieu of UFAS, for new 
construction and alterations commencing on or after one year from the 
publication date of the final rule in the Federal Register. Therefore, 
as discussed below, the proposed rule specifies that all buildings and 
facilities newly constructed or altered by recipients shall comply with 
the requirements for a ``public building or facility'' as set forth in 
the 2010 Standards.
    Under NASA's section 504 regulations, the same accessibility 
standards for new construction and alterations are applied to all 
recipients regardless of whether they are public or private entities 
that have an obligation to comply with title II or title III of the 
ADA, respectively. That is, both private and public recipients are 
subject to the same requirements for the purposes of compliance with 
NASA's section 504 regulations. The 2010 Standards impose several 
different requirements for buildings and facilities covered by title II 
as compared to buildings and facilities covered by title III. For 
example, Exception 1 of section 206.2.3 of the 2010 Standards exempts 
certain multistory buildings owned by private entities from the 
requirement to provide an elevator. This exemption does not apply to 
buildings owned by public entities. Similarly, the 2010 Standards 
specify TTY requirements for public buildings that are different than 
those required for private buildings. In order to maintain consistency 
in the requirements applicable to all its recipients, regardless of 
whether they are public or private entities, NASA is requiring all 
buildings and facilities covered by its section 504 Federally assisted 
rule to comply with the requirements for a ``public building or 
facility,'' which are the requirements for buildings subject to title 
II of the ADA.
    The NPRM proposes that compliance with the 2010 Standards is 
required one year from the publication date of the final rule in the 
Federal Register. In the period between the effective date of the final 
rule and the compliance date for new construction and alterations 
announced in the final rule, the NPRM proposes that recipients shall be 
permitted to choose to use the 2010 Standards in lieu of UFAS.\2\ 
However, regardless of which accessibility standard recipients choose 
to use during this time period, recipients may not designate one 
accessibility standard for part of a facility and the other 
accessibility standard for the remainder.
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    \2\ This choice is in keeping with the Department of Justice 
March 2011 memorandum advising Federal agencies that until such time 
as they update their agency's regulation implementing the Federally 
assisted provisions of section 504 of the Rehabilitation Act of 1973 
(section 504), they may notify covered entities that they may use 
the 2010 ADA Standards for Accessible Design (2010 Standards) as an 
acceptable alternative to the Uniform Federal Accessibility 
Standards (UFAS). (www.ada.gov/504_memo_standards.htm).
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    The NPRM also proposes to adopt the approach used in both title II 
at 28 CFR 35.151(c) and title III at 28 CFR 36.406(a) to determine the 
``triggering event'' for applying the proposed standards to new 
construction and alterations under section 504. For NASA recipients 
that are public entities (i.e., state and local governments and their 
agencies and organizations) who would otherwise comply with title II, 
the triggering event will be the commence of physical construction or 
alterations. For private entities who would otherwise comply with title 
III (i.e., privately owned and operated organizations), the triggering 
event is the date of: a) The last application for a building permit or 
permit extension certified to be complete by a state, county, or local 
government; or b) in those jurisdictions where the government does not 
certify completion of applications, the date when the last application 
for a building permit or permit extension is received by the State, 
county, or local government; or c) if no permit is required, the start 
of physical construction or alterations. For both public and private 
entities, NASA proposes to adopt the language found at 28 CFR 
35.151(c)(4) in title II and 28 CFR 36.406(a)(4) in title III to make 
it clear that the date of ceremonial groundbreaking or the date a 
structure is razed to make it possible for construction of a facility 
to take place does not qualify as the commencement of physical 
construction.

Reasonable Accommodation (Non-Employment)

    In Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 
2361 (1979), the Supreme Court held that a person is not protected by 
section 504 if, in order for the person to meet reasonable eligibility 
standards, the person needs program or policy modifications that would 
fundamentally alter the nature of the provider's program or impose 
undue financial and

[[Page 67388]]

administrative burdens (applicant who was denied admission to college 
nursing program because of her hearing disability asked college to 
provide hearing supervisor to aid her in communicating with patients, 
to dispense with certain required courses, and to train her to hold 
some, but not all, positions available to a registered nurse). Although 
the Court also opined in Davis that there may be situations where a 
refusal to modify an existing program might be discriminatory, this 
issue was posed to, and analyzed by, the Court in terms of the proper 
interpretation of the statutory term ``otherwise qualified.'' As a 
result, agency Section 504 regulations \3\ originally promulgated after 
the Davis decision addressed the obligation to provide reasonable 
accommodations/modifications in the definition section for ``qualified 
handicapped person'' (rather than in the nondiscrimination section).\4\
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    \3\ See, e.g., 14 CFR 1251.503 (NASA's section 504 Federally 
conducted regulation.)
    \4\ With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, the regulatory definition of a ``qualified 
handicapped person'' (revised to ``qualified individual with a 
disability'' in this part) is an individual who meets the essential 
eligibility requirements of the program and who can achieve the 
purpose of the program or activity without modifications in the 
program or activity that the agency can demonstrate would result in 
a fundamental alteration in its nature.
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    Subsequently, in Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712 
(1985) (Medicaid recipients not entitled to relief under section 504 
against state's reduction in the number of inpatient hospital days that 
state Medicaid would pay), the Court clarified its Davis analysis. In 
that case, the Court described Davis as striking a balance between the 
need to provide qualified individuals with disabilities with meaningful 
access to the benefit the grantee offers and the legitimate interests 
of Federal grantees in preserving the integrity of their programs (469 
U.S. at 300-301). It further stated that, although its opinion in Davis 
``addressed that portion of section 504 that requires that a 
handicapped individual be `otherwise qualified' before the 
nondiscrimination principle of section 504 becomes relevant, . . . the 
question of who is `otherwise qualified' and what actions constitute 
`discrimination' under the section would seem to be two sides of a 
single coin; the ultimate question is the extent to which a grantee is 
required to make reasonable modifications [accommodations] in its 
programs for the needs of the handicapped.'' (469 U.S. at 300, note 
19).
    In addition, in keeping with these decisions of the Supreme Court 
over the past decades, Federal courts and Federal agencies have 
regularly acknowledged the affirmative obligation to provide qualified 
individuals with disabilities reasonable accommodations in programs, 
services, and activities.
    Similarly, Congress, in the ADA at 42 U.S.C. 12182(b)(2)(A)(ii), 
and DOJ, in its ADA regulations at 28 CFR 35.130(b)(7) and 28 CFR 
36.302, stated the obligation as a positive requirement to make 
reasonable changes in policies, practices, or procedures when necessary 
to avoid discrimination on the basis of disability. Accordingly, and 
with the approval of the DOJ pursuant to its section 504 coordination 
authority, we are proposing to add to the section 504 rule at 
Sec. Sec.  1251.111 (Federally Assisted Programs) and 1251.581 
(Federally Conducted Programs) a provision stating that a recipient 
must provide reasonable accommodations by making changes to policies, 
practices, or procedures when necessary to avoid discrimination on the 
basis of disability, unless the covered entity can show that the 
accommodations would result in a fundamental alteration in the nature 
of its service, program, or activity or impose undue financial and 
administrative burdens. The term ``reasonable accommodation'' is 
intended to have the same meaning as the term reasonable modifications 
under title II of the ADA (and the title II implementing regulation) 
and not the same meaning as ``reasonable accommodation'' in title I of 
the ADA (and the title I implementing regulation) covering employment. 
However, unlike reasonable modifications under title II, the obligation 
to provide reasonable accommodations under section 504 is limited by 
both the fundamental alteration and the undue financial and 
administrative burden defenses.

Qualified Individual With a Disability

    NASA is proposing to revise Sec.  1251.102(k) Qualified Individual 
with a Disability in order to streamline the language and update the 
references to employment to cite to the EEOC title I ADA regulation.

Direct Threat

    In School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273,107 
S.Ct. 1123 (1987) (school board dismissed teacher after a third relapse 
of tuberculosis within a two-year period), the Court held that (i) 
section 504 covers individuals with contagious diseases and (ii) the 
determination of whether a person with a contagious disease is 
otherwise qualified must be made on an individualized basis, taking 
into account the nature of the risk (how the disease is transmitted), 
duration of the risk (how long is the carrier infectious), severity of 
the risk (what is the potential harm to third parties), and probability 
the disease will be transmitted and will cause varying degrees of harm. 
The individualized inquiry must include appropriate findings of fact 
about these factors, based on reasonable medical judgments given the 
state of medical knowledge; based on these findings, a determination 
must be made as to whether the individual's disability could be 
reasonably accommodated.\5\ This concept was incorporated by Congress 
into the ADA where it was termed a ``direct threat.'' The ADA 
regulations for titles II and III incorporate provisions allowing for 
determinations of ``direct threat'' in Sec. Sec.  35.104 and 36.104 
(definitions) and Sec. Sec.  35.139 and 36.208. Accordingly, and with 
the approval of DOJ pursuant to its coordination authority under 
section 504, we are proposing to revise our section 504 regulation to 
include language addressing direct threat consistent with the language 
included in the ADA title II regulation. See proposed Sec. Sec.  
1251.110 (Federally Assisted Programs) and 1251.580 (Federally 
Conducted Programs).
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    \5\ While Arline speaks to ``direct threat'' in terms of 
allegations that an individual with a ``contagious disease'' may 
pose a danger to the health and safety of others, the individualized 
inquiry and the specific analysis required by Arline and this 
regulation applies to all allegations that a person with a 
disability poses a ``direct threat'' to the health or safety to 
others.
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Procedures for Compliance

    Federal agencies that have the responsibility to ensure that their 
recipients comply with civil rights regulations that prohibit 
discrimination in programs, services, and activities that receive 
Federal financial assistance have provisions in their regulations that 
provide the authority for agencies to ensure compliance and conduct 
enforcement activities. NASA's section 504 regulation at Sec.  1251.400 
incorporates by reference several provisions of the Title VI of the 
Civil Rights Act of 1964 regulation that authorize NASA to conduct 
compliance activities to ensure that recipients do not discriminate on 
the basis of disability in their programs, services, and activities. 
These provisions of the title VI regulation require NASA to conduct 
periodic compliance reviews of recipient programs; receive, investigate 
and resolve complaints of

[[Page 67389]]

discrimination on the basis of disability alleged by recipient 
beneficiaries; \6\ conduct hearings to determine whether Federal 
financial assistance is to be suspended, revoked, or withheld due to a 
recipient's failure to comply with any provisions of section 504; \7\ 
and judicial review of NASA actions to enforce Section 504.\8\ However, 
the section 504 regulation does not incorporate by reference three 
additional title VI regulatory provisions that are included in other 
Federal agency section 504 regulations that pertain to procedures for 
compliance and are critical to effective enforcement of section 504. In 
contrast, NASA's civil rights regulations that prohibit discrimination 
on the basis of sex (Title IX of the Education Amendments of 1972) \9\ 
and age (Age Discrimination Act of 1975),\10\ as well as title VI, do 
have these provisions.
---------------------------------------------------------------------------

    \6\ 14 CFR 1250.106.
    \7\ 14 CFR 1250.108.
    \8\ 14 CFR 1250.110.
    \9\ 14 CFR 1253.605.
    \10\ 14 CFR subpart 1252.2.
---------------------------------------------------------------------------

    NASA proposes to amend its section 504 regulation at Sec.  1251.400 
to incorporate by reference those title VI regulatory provisions 
omitted from this section 504 Federally assisted regulation that are 
necessary for NASA to ensure that recipients and subrecipients are 
complying with this part. Accordingly, NASA will incorporate by 
reference into Sec.  1251.400, NASA's title VI regulation at Sec.  
1250.105 (Compliance Information), which requires NASA to seek the 
cooperation of recipients in obtaining compliance with this part; 
requires recipients and subrecipients to keep records and provide 
reports to NASA upon request to determine compliance with this part; 
requires recipients to permit NASA to have access to records and 
sources of information to determine compliance with this part; and 
requires recipients to make available information regarding provisions 
of this part in a manner deemed appropriate by NASA to apprise 
interested persons of the rights and protections afforded to them by 
this part. NASA will also incorporate by reference into Sec.  1251.400, 
NASA's title VI regulation at Sec.  1250.107 (Procedures for Effecting 
Compliance), which delineates the process by which NASA will effectuate 
compliance with this part through the termination, suspension, or 
refusal to grant or continue Federal financial assistance if a 
recipient's noncompliance with this part cannot be remedied through 
informal means. Lastly, NASA will incorporate by reference into Sec.  
1251.400, NASA's title VI regulation at Sec.  1250.109 (decisions and 
notices) which delineates the process for rendering decisions and 
findings of the hearings conducted in accordance with Sec.  1250.107.

 NASA's Revisions to its Section 504 Regulation for Federally Conducted 
Programs

    In addition to its proposed revisions to its section 504 Federally 
assisted regulation at Sec.  1215.1, NASA is also proposing to revise 
its section 504 regulation that prohibits discrimination on the basis 
of disability in programs, services, and activities conducted by NASA 
at Sec.  1251.5. In 1978, Congress extended application of section 504 
to programs and activities conducted by Federal Executive agencies and 
the United States Postal Service. Pursuant to Executive Order 12250, 
the Department of Justice developed a prototype regulation to implement 
the 1978 amendment for Federally conducted programs and activities. 
More than 80 Federal agencies, including NASA, have now issued final 
regulations based on that prototype, prohibiting discrimination based 
on handicap in the programs and activities they conduct. Despite the 
large number of regulations implementing section 504 for Federally 
assisted and Federally conducted programs and activities, there is very 
little variation in their substantive requirements, or even in their 
language. The regulatory revisions in this rulemaking do not propose 
different requirements for NASA's Federally conducted programs, with 
the exception of the applicable accessibility standards for new and 
altered facilities.\11\
---------------------------------------------------------------------------

    \11\ Facilities designed, built, or altered with Federal dollars 
or leased by Federal agencies are subject to the Architectural 
Barriers Act (ABA). The General Services Administration (GSA) is 
responsible for prescribing the accessibility standards for all of 
these facilities (other than residential structures and Department 
of Defense and U.S. Postal Service facilities). Thus, this rule will 
reference the updated ABA Accessibility Standards adopted by GSA in 
2007. See 41 CFR part 102-76 Subpart C.
---------------------------------------------------------------------------

    Specifically, NASA proposes to revise the definition of 
``disability'' and ``individual with a disability'' at Sec.  1251.503 
by incorporating by reference the companion definitions in the revised 
Federally assisted programs regulation at Sec.  1251.102(h) and (k). 
NASA also proposes to revise the definition of ``direct threat'' and 
revise the regulatory standards for direct threat, employment, and 
reasonable accommodation in the Federally conducted programs regulation 
to conform with the companion regulatory standards for direct threat 
found at Sec.  1251.110, employment found at Sec.  1251.2, and 
reasonable accommodation found at Sec.  1251.111. Lastly, NASA proposes 
to revise its Federally conducted programs regulation at Sec.  1251.551 
to update the regulatory reference to the GSA standards applicable to 
Federal buildings subject to the Architectural Barriers Act for new 
construction and alterations, which is no longer at GSA Federal 
Management Regulation 41 CFR 101-19.600 to 101-19.607, but is now found 
at 41 CFR part 102-76, subpart C.

Statutory Authority

    The National Aeronautics and Space Act (the Space Act), 51 U.S.C. 
20113 (a), authorizes the Administrator of the National Aeronautics and 
Space Administration (NASA) to make, promulgate, issue, rescind, and 
amend rules and regulations governing the manner of its operations and 
the exercise of the powers vested in it by law.

Regulatory Analysis

Executive Order 12866 and Executive Order 13563

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
This proposed rule has been designated a ``significant regulatory 
action,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, this rule has been reviewed by the 
Office of Management and Budget.

Regulatory Flexibility Act

    It has been certified that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

Paperwork Reduction Act Statement

    This rule does not contain an information collection requirement 
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local, and 
Tribal governments, in the aggregate, or by the

[[Page 67390]]

private sector, of $100,000,000 or more in any one year, and it will 
not significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (as 
amended), 5 U.S.C. 804. This rule will not result in an annual effect 
on the economy of $100,000,000 or more; a major increase in costs or 
prices; or significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of United 
States-based companies to compete with foreign-based companies in 
domestic and export markets.

List of Subjects in 14 CFR Part 1251

    Administrative practice and procedure, civil rights, equal 
employment opportunity, Federal buildings and facilities, and 
individuals with disabilities.
    For the reasons stated in the preamble, the National Aeronautics 
and Space Administration proposes to amend 14 CFR part 1251 as follows:

PART 1251--NONDISCRIMINATION ON BASIS OF DISABILITY

0
1. The authority citation for part 1251 is revised to read as follows:

    Authority: Sec. 504 (29 U.S.C. 794)

0
2. Revise the heading of part 1251 to read as set forth above.
0
3. Remove the following words wherever they appear in part 1251 and add 
in their place as indicated in the table below.

 
------------------------------------------------------------------------
                 Remove                          Add in its place
------------------------------------------------------------------------
handicap...............................  disability.
handicaps..............................  disabilities.
handicapped person.....................  individual with a disability.
handicapped persons....................  individuals with a disability.
handicapped individual.................  individual with a disability.
handicapped individuals................  individuals with a disability.
individuals with handicaps.............  individuals with a disability.
qualified handicapped individual.......  qualified individual with a
                                          disability.
qualified handicapped individuals......  qualified individuals with a
                                          disability.
qualified individuals with handicaps...  qualified individuals with a
                                          disability.
qualified handicapped applicants or      qualified applicants or
 employees.                               employees with a disability.
nonhandicapped persons.................  persons who do not have a
                                          disability.
------------------------------------------------------------------------

Subpart 1251.1--General Provision

0
4. Revise Sec.  1251.100 to read as follows:


Sec.  1251.100  Purpose and broad coverage.

    (a) General. This part effectuates Section 504 of the 
Rehabilitation Act of 1973, which is designed to eliminate 
discrimination on the basis of handicap in any program or activity 
receiving Federal financial assistance.
    (b) Broad coverage. Consistent with the Americans with Disabilities 
Amendments Act of 2008 (ADAA) and its purpose of reinstating a broad 
scope of protection under the Americans with Disabilities Act and this 
part, the definition of disability in this chapter shall be construed 
in favor of broad coverage of individuals under this part, to the 
maximum extent permitted by the terms of this part.
0
5. Amend Sec.  1251.102 as follows:
0
a. In paragraph (c), remove the word ``Assistant'' and add in its place 
the word ``Associate'' wherever it occurs and add the words ``Diversity 
and'' after the word ``for'';
0
b. In paragraph (d), remove the word ``entry'' and add in its place the 
word ``entity'';
0
c. Revise paragraphs (h)(1)(iii) and (h)(2)(i) through (iv);
0
d. Add paragraphs (h)(2)(v) and (vi);
0
e. Revise paragraphs (i) and (j); and
0
f. Add paragraphs (l) through (m).
    The revisions and additions read as follows:


Sec.  1251.102  Definitions.

* * * * *
    (h) * * *
    (1) * * *
    (iii) Being regarded as having such an impairment as described in 
paragraph (h)(1)(v)(A) of this section. This means that the individual 
has been subjected to an action prohibited by this part because of an 
actual or perceived impairment that is not both ``transitory and 
minor.''
    (A) Rules of construction (1) An individual may establish coverage 
under any one or more of the three prongs of the definition of 
disability in this paragraph (h)(1), the ``actual disability'' prong in 
paragraph (h)(1)(i) of this section, the ``record of'' prong in 
paragraph (h)(1)(ii) of this section, or the ``regarded as'' prong in 
paragraph (h)(1)(iii) of this section.
    (2) Where an individual is not challenging a recipient's failure to 
provide reasonable accommodations under Sec.  1251.111, it is generally 
unnecessary to proceed under the ``actual disability'' or ``record of'' 
prongs, which require a showing of an impairment that substantially 
limits a major life activity or a record of such an impairment. In 
these cases, the evaluation of coverage can be made solely under the 
``regarded as'' prong of the definition of disability, which does not 
require a showing of an impairment that substantially limits a major 
life activity or a record of such an impairment. An individual may 
choose, however, to proceed under the ``actual disability'' or ``record 
of'' prong regardless of whether the individual is challenging a public 
entity's failure to provide reasonable accommodations.
    (B) [Reserved]
    (2) * * *
    (i) Physical or mental impairment means:
    (A) Any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more of the 
following body systems: Neurological, musculoskeletal, special sense 
organs, respiratory (including speech organs), cardiovascular, 
reproductive, digestive, genitourinary, immune, circulatory, hemic and 
lymphatic, skin, and endocrine; or
    (B) Any mental or psychological disorder such as an intellectual 
disability, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The phrase ``physical or mental 
impairment''

[[Page 67391]]

includes, but is not limited to, such contagious and noncontagious 
diseases and conditions as orthopedic, visual, speech and hearing 
impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple 
sclerosis, cancer, heart disease, diabetes, intellectual disability, 
emotional illness, specific learning disabilities (including but not 
limited to dyslexia), HIV disease (whether symptomatic or 
asymptomatic), tuberculosis, drug addiction, and alcoholism.
    (C) The phrase ``physical or mental impairment'' does not include 
homosexuality or bisexuality.
    (ii) Major life activities include, but are not limited to:
    (A) Caring for oneself, performing manual tasks, seeing, hearing, 
eating, sleeping, walking, standing, sitting, reaching, lifting, 
bending, speaking, breathing, learning, reading, concentrating, 
thinking, communicating, interacting with others, and working; and
    (B) The operation of a major bodily function, including functions 
of the immune system, special sense organs and skin; normal cell 
growth; and digestive, genitourinary, bowel, bladder, neurological, 
brain, respiratory, circulatory, cardiovascular, endocrine, hemic, 
lymphatic, musculoskeletal, and reproductive functions. The operation 
of a major bodily function includes the operation of an individual 
organ within a body system.
    (C) In determining other examples of major life activities, the 
term ``major'' shall not be interpreted strictly to create a demanding 
standard for disability. Whether an activity is a ``major life 
activity'' is not determined by reference to whether it is of ``central 
importance to daily life.''
    (iii) Substantially limits--(A) Rules of construction. The 
following rules of construction apply when determining whether an 
impairment substantially limits an individual in a major life activity.
    (1) The term ``substantially limits'' shall be construed broadly in 
favor of expansive coverage, to the maximum extent permitted by the 
terms of the ADA Amendments Act of 2008. ``Substantially limits'' is 
not meant to be a demanding standard.
    (2) An impairment is a disability within the meaning of this part 
if it substantially limits the ability of an individual to perform a 
major life activity as compared to most people in the general 
population. An impairment need not prevent, or significantly or 
severely restrict, the individual from performing a major life activity 
in order to be considered substantially limiting.
    (3) The primary object of attention in cases brought under section 
504 should be whether recipients have complied with their obligations 
and whether discrimination has occurred, not the extent to which an 
individual's impairment substantially limits a major life activity. 
Accordingly, the threshold issue of whether an impairment substantially 
limits a major life activity should not demand extensive analysis.
    (4) The determination of whether an impairment substantially limits 
a major life activity requires an individualized assessment. However, 
in making this assessment, the term ``substantially limits'' shall be 
interpreted and applied to require a degree of functional limitation 
that is lower than the standard for substantially limits applied prior 
to the ADA Amendments Act.
    (5) The comparison of an individual's performance of a major life 
activity to the performance of the same major life activity by most 
people in the general population usually will not require scientific, 
medical, or statistical evidence. Nothing in this paragraph is 
intended, however, to prohibit or limit the use of scientific, medical, 
or statistical evidence in making such a comparison where appropriate.
    (6) The determination of whether an impairment substantially limits 
a major life activity shall be made without regard to the ameliorative 
effects of mitigating measures. However, the ameliorative effects of 
ordinary eyeglasses or contact lenses shall be considered in 
determining whether an impairment substantially limits a major life 
activity. Ordinary eyeglasses or contact lenses are lenses that are 
intended to fully correct visual acuity or to eliminate refractive 
errors.
    (7) An impairment that is episodic or in remission is a disability 
if it would substantially limit a major life activity when active.
    (8) An impairment that substantially limits one major life activity 
need not substantially limit other major life activities in order to be 
considered a substantially limiting impairment.
    (9) The six-month ``transitory'' part of the ``transitory and 
minor'' exception in paragraph (h)(3) of this section does not apply to 
the ``actual disability'' or ``record of'' prongs of the definition of 
disability. The effects of an impairment lasting or expected to last 
fewer than six months can be substantially limiting within the meaning 
of this section for establishing an actual disability or a record of a 
disability.
    (B) Predictable assessments. (1) The principles set forth in Sec.  
1251.102(h)(2)(iii) are intended to provide for more generous coverage 
and application of section 504's prohibition on discrimination through 
a framework that is predictable, consistent, and workable for all 
individuals and entities with rights and responsibilities under section 
504.
    (2) Applying the principles set forth in Sec.  1251.102(h)(2)(iii) 
the individualized assessment of some types of impairments will, in 
virtually all cases, result in a determination of coverage under Sec.  
1251.102(h)(1)(i) (the ``actual disability'' prong) or Sec.  
1251.102(h)(1)(ii) (the ``record of'' prong). Given their inherent 
nature, these types of impairments will, as a factual matter, virtually 
always be found to impose a substantial limitation of a major life 
activity. Therefore, with respect to these types of impairments, the 
necessary individualized assessment should be particularly simple and 
straightforward.
    (3) For example, applying the principles set forth in Sec.  
1251.102(h)(2)(iii) it should easily be concluded that the following 
types of impairments will, at a minimum, substantially limit the major 
life activities indicated:
    (i) Deafness substantially limits hearing and auditory function;
    (ii) Blindness substantially limits visual function;
    (iii) An intellectual disability substantially limits reading, 
learning, and problem solving;
    (iv) Partially or completely missing limbs or mobility impairments 
requiring the use of a wheelchair substantially limit musculoskeletal 
function;
    (v) Autism substantially limits learning, social interaction, and 
communication;
    (vi) Cancer substantially limits normal cell growth;
    (vii) Cerebral palsy substantially limits brain function;
    (viii) Diabetes substantially limits endocrine function;
    (ix) Epilepsy, muscular dystrophy, and multiple sclerosis 
substantially limit neurological function;
    (x) Human Immunodeficiency Virus (HIV) infection substantially 
limits immune function; and
    (xi) Major depressive disorder, bipolar disorder, post-traumatic 
stress disorder, traumatic brain injury, obsessive compulsive disorder, 
and schizophrenia substantially limit brain function. The types of 
impairments described in this paragraph may substantially limit 
additional major life activities not explicitly listed above.
    (C) Condition, manner or duration. (1) At all times taking into 
account the principles in Sec.  1251.102(h)(2)(iii), in determining 
whether an individual is

[[Page 67392]]

substantially limited in a major life activity, it may be useful in 
appropriate cases to consider, as compared to most people in the 
general population, the conditions under which the individual performs 
the major life activity; the manner in which the individual performs 
the major life activity; or the duration of time it takes the 
individual to perform the major life activity, or for which the 
individual can perform the major life activity.
    (2) Consideration of facts such as condition, manner, or duration 
may include, among other things, consideration of the difficulty, 
effort or time required to perform a major life activity; pain 
experienced when performing a major life activity; the length of time a 
major life activity can be performed; or the way an impairment affects 
the operation of a major bodily function. In addition, the non-
ameliorative effects of mitigating measures, such as negative side 
effects of medication or burdens associated with following a particular 
treatment regimen, may be considered when determining whether an 
individual's impairment substantially impairs a major life activity.
    (3) In determining whether an individual has a disability under the 
``actual disability'' or ``record of'' prongs of the definition of 
disability, the focus is on how a major life activity is substantially 
limited, not on what outcomes an individual can achieve. For example, 
someone with a learning disability may achieve a high level of academic 
success, but may nevertheless be substantially limited in one or more 
major life activities, including, but not limited to, reading, writing, 
speaking, or learning because of the additional time or effort he or 
she must spend to read, write, speak, or learn compared to most people 
in the general population.
    (D) Mitigating measures include, but are not limited to:
    (1) Medication, medical supplies, equipment, appliances, low-vision 
devices (defined as devices that magnify, enhance, or otherwise augment 
a visual image, but not including ordinary eyeglasses or contact 
lenses), prosthetics including limbs and devices, hearing aid(s) and 
cochlear implant(s) or other implantable hearing devices, mobility 
devices, and oxygen therapy equipment and supplies.
    (2) Use of assistive technology;
    (3) Reasonable accommodations or auxiliary aids or services as 
defined in this section;
    (4) Learned behavioral or adaptive neurological modifications; or
    (5) Psychotherapy, behavioral therapy, or physical therapy.
    (iv) Has a record of such an impairment means:
    (A) Broad construction. Whether an individual has a record of an 
impairment that substantially limited a major life activity shall be 
construed broadly to the maximum extent permitted by section 504 and 
should not demand extensive analysis. An individual will be considered 
to fall within this prong of the definition of disability if the 
individual has a history of an impairment that substantially limited 
one or more major life activities when compared to most people in the 
general population, or was misclassified as having had such an 
impairment. In determining whether an impairment substantially limited 
a major life activity, the principles articulated in Sec.  
1251.102(h)(2)(iii) apply.
    (B) Reasonable accommodation. An individual with a record of a 
substantially limiting impairment may be entitled to a reasonable 
accommodation if needed and related to the past disability.
    (v) Regarded as having such an impairment means:
    (A) An individual is ``regarded as having such an impairment'' if 
the individual is subjected to an action prohibited by the ADA because 
of an actual or perceived physical or mental impairment, whether or not 
that impairment substantially limits, or is perceived to substantially 
limit, a major life activity, except for an impairment that is both 
transitory and minor. A transitory impairment is an impairment with an 
actual or expected duration of six months or less.
    (B) An individual is ``regarded as having such an impairment'' any 
time a covered entity takes a prohibited action against the individual 
because of an actual or perceived impairment, even if the entity 
asserts, or may or does ultimately establish, a defense to such action.
    (C) Establishing that an individual is ``regarded as having such an 
impairment'' does not, by itself, establish liability. Liability is 
established under section 504 only when an individual proves that a 
covered entity discriminated on the basis of disability within the 
meaning of section 504.
    (vi) Exclusions. The term ``disability'' does not include:
    (A) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (B) Compulsive gambling, kleptomania, or pyromania; or
    (C) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
* * * * *
    (i) Qualified individual with a disability means:
    (1) With respect to any aid, benefit, or service, provided under a 
program or activity subject to this part, an individual with a 
disability who, with or without reasonable accommodations in rules 
policies, or procedures, the removal of architectural, communication, 
or transportation barriers, or the provision auxiliary aids or 
services, meets the essential eligibility requirements for 
participation in, or receipt from, that aid, benefit, or service, and
    (2) With respect to employment, the definition given that term in 
the Equal Employment Opportunity Commission's regulation at 29 CFR part 
1630, implementing Title I of the Americans with Disabilities Act of 
1990, which regulation is made applicable to this part by Sec.  1251.2.
    (j) Disability means a physical or mental impairment which 
substantially limits one or more major life activities as defined in 
paragraph (h) of this section.
* * * * *
    (l) Direct threat means a significant risk to the health or safety 
of others that cannot be eliminated by a change to policies, practices 
or procedures, or by the provision of auxiliary aids or services as 
provided in Sec.  1251.110 of this part.
    (m) Auxiliary aids and services means services or devices that 
enable persons with sensory, manual, or speech disabilities to have an 
equal opportunity to participate in, and enjoy the benefits of, 
programs or activities conducted by the recipient. Auxiliary aids and 
services include:
    (1) Qualified interpreters onsite or through video remote 
interpreting (VRI) services; notetakers; real-time computer-aided 
transcription services; written materials; exchange of written notes; 
telephone handset amplifiers; assistive listening devices; assistive 
listening systems; telephones compatible with hearing aids; closed 
caption decoders; open and closed captioning, including realtime 
captioning; voice, text, and video-based telecommunications products 
and systems, including text telephones (TTYs), videophones, and 
captioned telephones, or equally effective telecommunications devices; 
videotext displays; accessible electronic and information technology; 
or other effective methods of making aurally delivered information 
available to

[[Page 67393]]

individuals who are deaf or hard of hearing;
    (2) Qualified readers; taped texts; audio recordings; Brailled 
materials and displays; screen reader software; magnification software; 
optical readers; secondary auditory programs (SAP); large print 
materials; accessible electronic and information technology; or other 
effective methods of making visually delivered materials available to 
individuals who are blind or have low vision;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.


Sec.  1251.104  [Amended]

0
6. In Sec.  1251.104, in paragraphs (a) and (c)(3), remove the word 
``Assistant'' and add in its place the word ``Associate''.


Sec.  1251.105  [Amended]

0
7. In paragraphs (a)(1) through (3) and (c)(2) introductory text, 
remove the word ``Assistant'' wherever it appears and add in its place 
the word ``Associate''.
0
8. Amend Sec.  1251.107 by revising paragraph (a) to read as follows:


Sec.  1251.107  Notice.

    (a) A recipient that employs 15 or more persons shall take 
appropriate initial and continuing steps to notify participants, 
beneficiaries, applicants, and employees, including those with vision 
or hearing disabilities, and unions or professional organizations 
holding collective bargaining or professional agreements with the 
recipient that it does not discriminate on the basis of disability in 
violation of section 504 and this part. The notification shall state, 
where appropriate, that the recipient does not discriminate in 
admission or access to, or treatment or employment in, its programs or 
activities. The notification shall also include an identification of 
the responsible employee designated pursuant to Sec.  1251.106(a). A 
recipient shall make the initial notification required by this 
paragraph within 90 days of the effective date of this part. Methods of 
initial and continuing notification may include the posting of notices, 
transmission via electronic mail or text message, publication on the 
recipient's internet Web site, or in newspapers and magazines, 
placement of notices in recipient's publication, and distribution of 
memoranda or other written communications.
* * * * *


Sec.  1251.108  [Amended]

0
9. Amend Sec.  1251.108 by removing the word ``Assistant'' wherever it 
appears and adding in its place the word ``Associate''.
0
10. Add Sec.  1251.110 to subpart 1251.1 to read as follows:


Sec.  1251.110  Direct threat.

    (a) This part does not require a recipient to permit an individual 
to participate in or benefit from the services, programs, or activities 
of that recipient when that individual poses a direct threat to the 
health or safety of others.
    (b) In determining whether an individual poses a direct threat to 
the health or safety of others, a recipient must make an individualized 
assessment, based on reasonable judgment that relies on current medical 
knowledge or on the best available objective evidence, to ascertain: 
the nature, duration, and severity of the risk; the probability that 
the potential injury will actually occur; and whether reasonable 
accommodations in policies, practices, or procedures or the provision 
of auxiliary aids or services will mitigate the risk.
0
11. Add Sec.  1251.111 to subpart 1251.1 to read as follows:


Sec.  1251.111  Reasonable accommodation.

    A recipient shall make reasonable accommodations in policies, 
practices, or procedures when such accommodations are necessary to 
avoid discrimination on the basis of disability, unless the recipient 
can demonstrate that making the accommodations would fundamentally 
alter the nature of the service, program, or activity or result in an 
undue financial and administrative burden. For the purposes of this 
section, the term reasonable accommodation shall be interpreted in a 
manner consistent with the term ``reasonable modifications'' as set 
forth in the Americans with Disabilities Act Title II regulation at 28 
CFR 35.130(b)(7), and not as it is defined or interpreted for the 
purposes of employment discrimination under Title I of the ADA (42 
U.S.C. 12111-12112) and its implementing regulation at 29 CFR Part 
1630.
0
12. Add Sec.  1251.112 to subpart 1251.1 to read as follows:


Sec.  1231.112  Communications.

    (a) A recipient shall take appropriate steps to ensure effective 
communication with applicants, participants, and members of the public.
    (1) The recipient shall furnish appropriate auxiliary aids or 
services where necessary to afford an individual with a disability, 
including applicants, participants and members of the public, an equal 
opportunity to participate in, and enjoy the benefits of, a program or 
activity of the recipient.
    (i) In determining what type of auxiliary aid or service is 
necessary, the recipient shall give primary consideration to the 
requests of the individual with a disability.
    (ii) The recipient need not provide individually prescribed 
devices, readers for personal use or study, or other devices of a 
personal nature.
    (2) Where the recipient communicates with applicants and 
beneficiaries by telephone, telecommunication devices for deaf persons 
(TTY's) or equally effective telecommunication systems shall be used to 
communicate with persons with hearing disabilities.
    (b) The recipient shall ensure that interested persons, including 
persons with vision or hearing disabilities, can obtain information as 
to the existence and location of accessible services, activities, and 
facilities.
    (c) This section does not require the recipient to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and 
administrative burdens. In those circumstances where the recipient 
believes that the proposed action would fundamentally alter the program 
or activity or would result in undue financial and administrative 
burdens, the recipient has the burden of proving that compliance with 
Sec.  1251.112 would result in such alteration or burdens. The decision 
that compliance would result in such alteration or burdens must be made 
by the recipient agency head or his or her designee after considering 
all of the recipient's resources available for use in the funding and 
operation of the conducted program or activity and must be accompanied 
by a written statement of the reasons for reaching that conclusion. If 
an action required to comply with this section would result in such an 
alteration or such burdens, the recipient shall take any other action 
that would not result in such an alteration or such burdens but would 
nevertheless ensure that, to the maximum extent possible, individuals 
with disabilities receive the benefits and services of the program or 
activity.
0
13. Revise Sec.  1251.200 to read as follows:


Sec.  1251.200  Discrimination prohibited.

    (a) General. No qualified individual with a disability shall, on 
the basis of disability, be subjected to discrimination in employment 
under any program or activity to which this part applies.
    (b) Employment discrimination standards. The standards used to 
determine whether paragraph (a) of this section has been violated shall 
be the

[[Page 67394]]

standards applied under Title I of the Americans with Disabilities Act 
of 1990 (42 U.S.C. 12111 et seq.) and, as such sections relate to 
employment, the provisions of sections 501 through 504 and 510 of the 
Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 
12210), as amended by the ADA Amendments Act of 2008 (Pub. L. 110-325), 
as such standards are implemented in the Equal Employment Opportunity 
Commission's regulation at 29 CFR part 1630, as amended. The procedures 
to be used to determine whether paragraph (a) of this section has been 
violated shall be the procedures set forth in Sec.  1251.400 of this 
part.


Sec.  1251.202  [Amended]

0
14. Amend Sec.  1251.202 by removing the word ``Assistant'' in 
paragraph (a)(2) and adding in its place the word ``Associate''.
0
15. Amend Sec.  1251.302 as follows:
0
a. Revise paragraphs (a) and (c)(1); and
0
b. Redesignate paragraphs (c)(2) and (3) as paragraphs (c)(5) and (6) 
and add new paragraphs (c)(2) through (4).
0
The revisions and additions read as follows:


Sec.  1251.302  New construction and alterations.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a recipient shall be 
designed and constructed in such manner that the facility or part of 
the facility is readily accessible to and usable by individuals with 
disabilities.
* * * * *
    (c) Accessibility standards and compliance dates--(1) New 
Construction and alterations by recipients that are private entities. 
(i) New construction and alterations in which the last application for 
a building permit or permit extension for such construction or 
alterations is certified to be complete by a state, county, or local 
government (or, in those jurisdictions where the government does not 
certify completion of applications, if the date when the last 
application for a building permit or permit extension is received by 
the state, county, or local government) is prior to [DATE ONE YEAR 
AFTER PUBLICATION OF THE FINAL RULE IN THE Federal Register], or if no 
permit is required, if the start of physical construction or 
alterations occurs prior to [DATE ONE YEAR FROM THE PUBLICATION OF THE 
FINAL RULE IN THE Federal Register], then such new construction and 
alterations must comply with either the Uniform Federal Accessibility 
Standards (UFAS) or the ADA Standards for Accessible Design, (2010 
Standards) as defined in 28 CFR 35.104. Departures from particular 
requirements of either standard by the use of other methods shall be 
permitted when it is clearly evident that equivalent access to the 
facility or part of the facility is thereby provided.
    (ii) New construction and alterations in which the last application 
for a building permit or permit extension for such construction or 
alterations is certified to be complete by a state, county, or local 
government (or, in those jurisdictions where the government does not 
certify completion of applications, if the date when the last 
application for a building permit or permit extension is received by 
the state, county, or local government) is on or after [DATE ONE YEAR 
AFTER PUBLICATION OF THE FINAL RULE IN THE Federal Register], or if no 
permit is required, if the start of physical construction or 
alterations occurs on or after [DATE ONE YEAR FROM THE PUBLICATION OF 
THE FINAL RULE IN THE Federal Register], then such new construction and 
alterations shall comply with the 2010 Standards.
    (2) New construction and alterations by recipients that are public 
entities. (i) If physical construction or alterations commence prior to 
[DATE ONE YEAR AFTER PUBLICATION OF THE FINAL RULE IN THE Federal 
Register], then such new construction and alterations must comply with 
either UFAS or the 2010 Standards as defined in 28 CFR 35.104. 
Departures from particular requirements of either standard by the use 
of other methods shall be permitted when it is clearly evident that 
equivalent access to the facility or part of the facility is thereby 
provided.
    (ii) If physical construction or alterations commence on or after 
[DATE ONE YEAR AFTER PUBLICATION OF THE FINAL RULE IN THE Federal 
Register], then such new construction and alterations shall comply with 
the 2010 Standards.
    (3) For the purposes of this section, ceremonial groundbreaking or 
razing of structures prior to site preparation will not be considered 
to commence or start physical construction or alterations.
    (4) All newly constructed or altered buildings or facilities 
subject to this section shall comply with the requirements for a 
``public building or facility'' as defined in section 106.5 of the 2010 
Standards.

   Table of Applicable Standards for Complying With 14 CFR 1251.302(c)
------------------------------------------------------------------------
                                             Applicable standards for
 Compliance dates for new construction        complying with 14 CFR
            and alterations                        1251.302(c)
------------------------------------------------------------------------
Prior to [DATE ONE YEAR AFTER            UFAS or the requirements for a
 PUBLICATION OF THE FINAL RULE IN THE     ``public building or
 Federal Register].                       facility'' as defined in
                                          section 106.5 of the 2010
                                          Standards
On or after [DATE ONE YEAR AFTER         All buildings or facilities
 PUBLICATION OF THE FINAL RULE IN THE     shall comply with the
 Federal Register].                       requirements for a ``public
                                          building or facility'' as
                                          defined in section 106.5 of
                                          the 2010 Standards.
------------------------------------------------------------------------

* * * * *
0
16. Section 1251.400 is revised to read as follows:


Sec.  1251.400  Procedures for compliance.

    (a) The investigative, compliance, and enforcement procedural 
provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 
2000d) are hereby adopted and apply to these section 504 regulations. 
These procedures are found at Sec. Sec.  1250.105 through 1250.110 of 
this chapter.
    (b) The agency shall ensure that complaints alleging violations of 
section 504 with respect to employment are processed according to the 
procedures established by the EEOC in 29 CFR part 1640 and the United 
States DOJ at 28 CFR part 37.

Subpart 1251.5--Enforcement of Nondiscrimination on the Basis of 
Disability in Programs or Activities Conducted by the National 
Aeronautics and Space Administration

0
17. Section 1251.503 is revised to read as follows:


Sec.  1251.503  Definitions.

    As used in this part, the term:
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights

[[Page 67395]]

Division, United States Department of Justice.
    Auxiliary aids and services means services or devices that enable 
persons with sensory, manual, or speech disabilities to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. Auxiliary aids and services 
include:
    (1) Qualified interpreters onsite or through VRI services; 
notetakers; real-time computer-aided transcription services; written 
materials; exchange of written notes; telephone handset amplifiers; 
assistive listening devices; assistive listening systems; telephones 
compatible with hearing aids; closed caption decoders; open and closed 
captioning, including realtime captioning; voice, text, and video-based 
telecommunications products and systems, including text telephones 
(TTYs), videophones, and captioned telephones, or equally effective 
telecommunications devices; videotext displays; accessible electronic 
and information technology; or other effective methods of making 
aurally delivered information available to individuals who are deaf or 
hard of hearing;
    (2) Qualified readers; taped texts; audio recordings; Brailled 
materials and displays; screen reader software; magnification software; 
optical readers; secondary auditory programs (SAP); large print 
materials; accessible electronic and information technology; or other 
effective methods of making visually delivered materials available to 
individuals who are blind or have low vision;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties 
shall describe or identify (by name, if possible) the alleged victims 
of discrimination.
    Direct threat means a significant risk to the health or safety of 
others that cannot be eliminated by a change to policies, practices or 
procedures, or by the provision of auxiliary aids or services as 
provided in Sec.  1251.110 of this part.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
state or local government body.
    Individual with a disability means any person who meets the 
definition of ``individual with a disability'' under Sec.  1251.102(h) 
of this part.
    Qualified individual with a disability means any person who meets 
the definition of ``qualified individual with a disability'' under 
Sec.  1251.102(k) of this part.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and 
the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 
1810).
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.
0
18. Revise Sec.  1251.540 to read as follows:


Sec.  1251.540  Employment.

    (a) General. No qualified individual with a disability shall, on 
the basis of disability, be subjected to discrimination in employment 
under any program or activity to which this part applies.
    (b) Employment discrimination standards. The standards used to 
determine whether paragraph (a) of this section has been violated shall 
be the standards applied under Title I of the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12,111 et seq.) and, as such 
sections relate to employment, the provisions of sections 501 through 
504 and 510 of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12201-12204 and 12210), as amended by the ADA Amendments Act of 2008 
(Pub. L. 110-325), as such standards are implemented in the Equal 
Employment Opportunity Commission's regulation at 29 CFR part 1630, as 
amended.
0
19. Revise Sec.  1251.551 to read as follows:


Sec.  1251.551  Program accessibility: New construction and 
alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and 
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as 
established in 41 CFR part 102-76, subpart C, apply to buildings 
covered by this section.
0
20. In Sec.  1251.570, revise paragraphs (b) and (c) to read as 
follows:


Sec.  1251.570  Compliance procedures.

* * * * *
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1614.
    (c) The Associate Administrator for Diversity and Equal Opportunity 
shall be responsible for coordinating implementation of this section. 
Complaints may be sent to the Office of Diversity and Equal 
Opportunity, NASA Headquarters, 300 E Street SW., Washington, DC 20546.
* * * * *
0
21. Add Sec.  1251.580 to subpart 1251.5 to read as follows:


Sec.  1251.580  Direct threat.

    (a) This part does not require the Agency to permit an individual 
to participate in or benefit from the services, programs, or activities 
of that recipient when that individual poses a direct threat to the 
health or safety of others.
    (b) In determining whether an individual poses a direct threat to 
the health or safety of others, a recipient must make an individualized 
assessment, based on reasonable judgment that relies on current medical 
knowledge or on the best available objective evidence, to ascertain: 
the nature, duration, and severity of the risk; the probability that 
the potential injury will actually occur; and whether reasonable 
accommodations in policies, practices, or procedures or the provision 
of auxiliary aids or services will mitigate the risk.
0
22. Add Sec.  1251.581 to subpart 1251.5 to read as follows:


Sec.  1251.581  Reasonable accommodation.

    The agency shall make reasonable accommodations in policies, 
practices, or procedures when such accommodations are necessary to 
avoid discrimination on the basis of disability,

[[Page 67396]]

unless the recipient can demonstrate that making the accommodations 
would fundamentally alter the nature of the service, program, or 
activity or result in an undue financial and administrative burden. For 
the purposes of this section, the term ``reasonable accommodation'' 
shall be interpreted in a manner consistent with the term ``reasonable 
modifications'' as set forth in the Americans with Disabilities Act 
Title II regulation at 28 CFR 35.130(b)(7), and not as it is defined or 
interpreted for the purposes of employment discrimination under Title I 
of the ADA (42 U.S.C. 12111-12112) and its implementing regulations at 
29 CFR part 1630.

Cheryl E. Parker,
NASA Federal Register Liaison Officer.
[FR Doc. 2014-26543 Filed 11-12-14; 8:45 am]
BILLING CODE 7510-13-P